Gold v. City of Miami, No. 95-4996

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtBefore HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS; PER CURIAM; BARKETT
Citation138 F.3d 886
PartiesMichael C. GOLD, Plaintiff-Appellee, v. CITY OF MIAMI, a Florida Municipal Corporation, Defendant, Calvin Ross, individually, Rafael Suarez, individually, Jorge Perez, individually, William Campbell, individually, Defendants-Appellants.
Docket NumberNo. 95-4996
Decision Date07 April 1998

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138 F.3d 886
Michael C. GOLD, Plaintiff-Appellee,
v.
CITY OF MIAMI, a Florida Municipal Corporation, Defendant,
Calvin Ross, individually, Rafael Suarez, individually,
Jorge Perez, individually, William Campbell,
individually, Defendants-Appellants.
No. 95-4996.
United States Court of Appeals,
Eleventh Circuit.
April 7, 1998.

Kathryn C. Pecko, Leon M. Firtel, Assts. City Attys., Miami, FL, for Defendants-Appellants.

Charles M. Baron, North Miami Beach, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida (No. 92-1673-CIV-JWK), James W. Kehoe, Judge.

ON PETITION FOR REHEARING

(Opinion Sept. 17, 1997, 11th Cir., 121 F.3d 1442).

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.

BARKETT, Circuit Judge, dissenting:

I respectfully dissent from the court's denial of rehearing en banc. In this case, the panel held that the police officers who arrested Gold for disorderly conduct based solely

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on his comments to them were entitled to qualified immunity on Gold's false arrest claim. Despite the Supreme Court's holding in City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), that the First Amendment fully protects speech critical of police officers and a wealth of Florida Supreme Court precedent declining to apply the Florida disorderly conduct statute in factually similar circumstances to avoid conflict with the First Amendment, the panel held that Gold's First Amendment rights were not clearly established, and that the officers had arguable probable cause to believe that Gold's speech, standing alone, violated Florida's disorderly conduct statute. The panel's conclusion that the officers had arguable probable cause to make an arrest in this case contravenes this overwhelming body of caselaw. Accordingly, we should rehear this case en banc.

The disorderly conduct for which Gold was arrested consisted of Gold yelling from his car to a police officer, "aren't you supposed to give them a ticket for parking in a handicapped spot," upon seeing a woman who did not appear to be disabled walk to her car in a handicapped space and drive away. When the police did nothing, Gold

loudly remarked to no one in particular, "Miami police don't do shit."

....

Upon hearing Gold's remarks, a plainclothes officer who had been standing in the ATM line stated to the uniformed officer, "I think this guys [sic] got a problem." To this Gold replied, "I don't have a problem. I'm just saying that Miami police don't do shit."

Gold v. City of Miami, 121 F.3d 1442, 1444 (11th Cir.1997). Under binding United States Supreme Court and Florida Supreme Court precedent existing at the time of Gold's arrest, no reasonable officer could possibly have believed that Gold's words were criminal. Gold's speech is precisely the kind that lies at the core of the First Amendment. There is nothing in the facts of this case even remotely to suggest that Gold's speech could be construed as falling within the very narrow category of fighting words or any other category of constitutionally proscribable speech. Accordingly, the officers in this case were not entitled to qualified immunity.

Disregarding these applicable precedents, the court's opinion found that Gold had not shown a violation of clearly established law, effectively holding that the law in a particular area is not clearly established for qualified immunity purposes, unless the plaintiff can point to a prior case involving identical facts. The panel's opinion emphasizes that, at the time of Gold's arrest, "no cases clearly established that [Gold's] actions did not constitute legally proscribed disorderly conduct." Gold, 121 F.3d at 1446. As the Supreme Court made explicitly clear in United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), such "fundamental similar[ity]" of underlying facts is not required to establish a violation of clearly established law. The purpose of qualified immunity, the Lanier Court explained, is simply to give government officials "fair warning" that their conduct violates federal constitutional or statutory rights. Comparing the "clearly established" concept in qualified immunity to the "fair warning" standard for a conviction under 18 U.S.C. §§ 241 and 242, the Court observed:

In the civil sphere, we have explained that qualified immunity seeks to ensure that defendants "reasonably can anticipate when their conduct may give rise to liability," by attaching liability only if "[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right".... [B]oth [the "clearly established" test and the "fair warning" standard] serve the same objective, and in effect the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes. To require something clearer than "clearly established" would, then, call for something beyond "fair warning."

Id. at ----, 117 S.Ct. at 1227 (citations omitted).

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The Court held that even under the standards necessary to support a criminal conviction, precedents involving "fundamentally similar" facts are not necessary to give state officials fair warning that their conduct contravenes constitutional rights:

Nor have our decisions demanded precedents that applied the right at issue to a factual situation that is "fundamentally similar".... To the contrary, we have upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.

Id. Moreover, the Court recognized that some legal concepts are sufficiently clear that any reasonable person would know when his or her actions would violate those concepts:

[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and ... a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though "the very action in question has [not] previously been held unlawful." As Judge Daughtrey noted in her dissenting opinion in this case, " '[t]he easiest cases don't even arise. There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.' "

Id. at ---- - ----, 117 S.Ct. at 1227-28 (citations omitted).

Under Lanier's fair warning standard, the police officers are not entitled to qualified immunity in this case. First, at the time of Gold's arrest, the Supreme Court had specifically held that speech critical of police officers is constitutionally protected. Second, as the panel opinion recognizes, the Florida Supreme Court had specifically reversed, as violative of the First Amendment, disorderly conduct convictions of defendants who had not only used expletives, but also made threatening comments to police officers--conduct far more egregious than Gold's. Finally, every other circuit that has addressed the issue of qualified immunity in a situation similar to that present here has had no trouble concluding that a police officer is not entitled to qualified immunity in these circumstances.

Supreme Court Precedent

The court's opinion in this case wholly ignores the First Amendment's protection of speech critical of the police, failing even to mention the United States Supreme Court's governing precedent in this area. In City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), the Supreme Court held that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Id. at 461, 107 S.Ct. at 2509. Applying this principle, the Court invalidated a Houston ordinance making it illegal to interrupt an officer in any manner, reasoning that "[t]he Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id. at 462-63, 107 S.Ct. at 2510 (footnote omitted). The Court made clear that the First Amendment does not permit states to "provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them." Id. at 465, 107 S.Ct. at 2511-12; see also Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170 (1973) (overturning conviction under disorderly conduct statute where "petitioner was arrested and convicted merely because he verbally and negatively protested Officer Johnson's treatment of him").

To be sure, the Court in Hill noted that "the freedom verbally to challenge police action is not without limits," Hill, 482 U.S. at 463 n. 12, 107 S.Ct. at 2510 n. 12, recognizing that " 'fighting words' which 'by their very utterance inflict injury or tend to incite an immediate breach of the peace' are not constitutionally protected." Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). However, the fighting words doctrine has a

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narrower...

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2 practice notes
  • Knowles v. State, A16A1607
    • United States
    • United States Court of Appeals (Georgia)
    • February 21, 2017
    ...be expected to exercise a higher degree of restraint than the average citizen.’ " (punctuation omitted)); Gold v. City of Miami, 138 F.3d 886, 889 (11th Cir. 1998) ("[A] police officer, by virtue of his profession or training, is expected to absorb a certain amount of [verbal] abu......
  • Merenda v. Tabor, CIVIL ACTION NO. 5:10-CV-493 (MTT)
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • May 7, 2012
    ...the police, failing even to mention the United States Supreme Court's governing precedentPage 16in this area." Gold v. City of Miami, 138 F.3d 886, 888 (11th Cir. 1998) (Barkett, J., dissenting). The governing precedent to which Judge Barkett was referring is Hill. Further, Judge Barke......
2 cases
  • Knowles v. State, A16A1607
    • United States
    • United States Court of Appeals (Georgia)
    • February 21, 2017
    ...be expected to exercise a higher degree of restraint than the average citizen.’ " (punctuation omitted)); Gold v. City of Miami, 138 F.3d 886, 889 (11th Cir. 1998) ("[A] police officer, by virtue of his profession or training, is expected to absorb a certain amount of [verbal] abu......
  • Merenda v. Tabor, CIVIL ACTION NO. 5:10-CV-493 (MTT)
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • May 7, 2012
    ...the police, failing even to mention the United States Supreme Court's governing precedentPage 16in this area." Gold v. City of Miami, 138 F.3d 886, 888 (11th Cir. 1998) (Barkett, J., dissenting). The governing precedent to which Judge Barkett was referring is Hill. Further, Judge Barke......

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