Keating v. City Of Miami

• Decision Date: 02 March 2010
• Docket Number: No. 09-10939.,09-10939.
• Citation: 598 F.3d 753
• Parties: Jeffrey KEATING, Rich Hersh, Bonnie Redding, Jason Kotoch, Raymond Del Papa, et al., Plaintiffs-Appellees, v. CITY OF MIAMI, a municipal entity, City of Miami Beach, a municipal entity, et al., Defendants, Miami Police Dept. Chief John Timoney, in his individual capacity, Miami Police Dept. Deputy Chief Frank Fernandez, in his individual capacity, Miami Police Dept. Major Adam Burden, in his individual capacity, Miami Police Dept. Captain Thomas Cannon, in his individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

598 F.3d 753

Jeffrey KEATING, Rich Hersh, Bonnie Redding, Jason Kotoch, Raymond Del Papa, et al., Plaintiffs-Appellees, v. CITY OF MIAMI, a municipal entity, City of Miami Beach, a municipal entity, et al., Defendants, Miami Police Dept. Chief John Timoney, in his individual capacity, Miami Police Dept. Deputy Chief Frank Fernandez, in his individual capacity, Miami Police Dept. Major Adam Burden, in his individual capacity, Miami Police Dept. Captain Thomas Cannon, in his individual capacity, Defendants-Appellants.

No. 09-10939.

United States Court of Appeals
Eleventh Circuit.

Date : March 2, 2010.

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Joshua Michael Entin, Rosen Switkes & Entin, P.L., John A. Greco, Miami, FL, Ronald Jay Cohen, Ronald J. Cohen, P.A., Hialeah, FL, for Defendants-Appellants.

Mara Shlackman, Law Offices of Mara Shlackman, P.L., Ft. Lauderdale, FL, for Plaintiffs-Appellees.

Appeals from the United States District Coui't for the Southern District of Florida.

Before WILSON and ANDERSON, Circuit Judges, and RESTANI, ^* Judge.

WILSON, Circuit Judge:

This appeal stems from a 42 U.S.C. S 1983 action brought by Jeffrey Keating, Rich Hersh, Bonnie Redding, Jason Kotoch, and Raymond Del Papa (collectively the "Protesters"), alleging, inter alia, violations of their First and Fourth Amendment rights during a demonstration held in November 2003 outside the Free Trade Area of the Americas (the "FTAA") meeting in Miami. Specifically, the Protesters allege that Chief John Timoney ("Timoney"), Deputy Chief Frank Fernandez ("Fernandez"), and Captain Thomas Cannon ("Cannon"), all members of the Miami Police Department, ¹ violated the Protesters' First Amendment rights under a theory of supervisory liability when they directed their subordinate officers to disperse a crowd of allegedly peaceful demonstrators, including the Protesters. The Protesters also allege that Timoney, Fer-

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nandez, Gannon, and Major Adam Burden ("Burden") of the Miami Police Department violated their First Amendment rights under a theory of supervisory liability when they failed to stop their subordinate officers from dispersing a large crowd of allegedly peaceful demonstrators, including the Protesters. Additionally, the Protesters allege that Timoney, Fernandez, Cannon, and Burden violated their Fourth Amendment rights under a theory of supervisory liability when the subordinate officers "herded" the Protesters out of the demonstration area, claiming that the "herding techniques" constituted an unlawful seizure.

Timoney, Fernandez, Cannon, and Burden appeal the district court's denial of qualified immunity in their motion to dismiss as to the Protesters' First Amendment claims. They argue that they are entitled to qualified immunity because the Protesters did not satisfy the heightened pleading standard for § 1983 actions, and alternatively, because their conduct did not violate clearly established law under the First Amendment. Timoney, Fernandez, Cannon, and Burden also appeal the district court's adverse finding that "herding" of the Protesters constituted an unlawful seizure in violation of the Fourth Amendment because the violation was not clearly established, even though the district court granted them qualified immunity in their motion to dismiss. Upon considering the briefs and the record, and after receiving the benefit of oral argument, we affirm the denial of qualified immunity as to Timoney, Fernandez, and Cannon under the Protesters' First Amendment claims, reverse the denial of qualified immunity as to Burden under the Protesters' First Amendment claim against him, and dismiss the appeal as to the Fourth Amendment claims for lack of jurisdiction.

I. BACKGROUND

In the Protesters' first amended complaint, they allege that while peacefully demonstrating outside the FTAA meeting on Biscayne Boulevard in Miami, a police line appeared and engaged the demonstrators, including the Protesters. D.E. 45 at 20-22. The Protesters allege that law enforcement officers began "herding" the demonstrators, using their batons to beat unarmed demonstrators, spraying pepper spray up and down the police line, and discharging bean bags, pepper spray balls, tear gas, and other projectiles. Id. at 2124. The Protesters allege that they were injured as a result of the law enforcement conduct. Id. at 26-29. The skirmish line continued with the "herding" of demonstrators and the Protesters by pushing them northward out of the area. Id. at 23-24. The Protesters further allege that the unconstitutional acts, including "herding, " encirclement, and use of excessive force, were witnessed, condoned, and directed by, inter alia, Timoney, Fernandez, and Cannon in their supervisory capacities. Id. at 42-44. The Protesters also allege that Timoney, Fernandez, Cannon, and Burden, in their supervisory capacities, could have intervened at any time to prevent the continued constitutional violations against the Protesters, but they failed to do so. Mat 59-61.

Timoney, Fernandez, Cannon, and Burden filed a motion to dismiss the Protesters' first amended complaint on the grounds that they were entitled to qualified immunity from the First and Fourth Amendment claims because the complaint does not satisfy the heightened pleading standard for § 1983 actions, and even if it does, the laws proscribing the alleged constitutional violations were not clearly established. The district court granted in part and denied in part Timoney, Fernandez, Cannon, and Burden's Motion to Dis-

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miss finding, inter alia, (1) that they were not entitled to qualified immunity on the First Amendment claims because they violated the Protesters' clearly established constitutional lights by acting in their supervisory capacities to direct and fail to stop the use of less-than-lethal weapons to disperse a crowd of peaceful demonstrators, and (2) that they were entitled to qualified immunity on the Fourth Amendment claims because, although they violated the Protesters' Fourth Amendment rights by "herding" the Protesters, the violation was not clearly established. Keating v. City of Miami, 598 F.Supp.2d 1315 (S.D.Fla.2009).

II. JURISDICTION

Before turning to the merits, we must address the issue of our jurisdiction over this interlocutory appeal. We requested the parties to brief the jurisdictional question. After receiving the parties' responses, and upon further consideration, we find that we have jurisdiction for this interlocutory appeal over the Protesters' First Amendment claims, but not over their Fourth Amendment claims.

A. Jurisdiction over the First Amendment Claims

In Mitchell v. Forsyth, the Supreme Court held that a district court's order denying a defendant's motion to dismiss or motion for summary judgment is immediately appealable under the "collateral order doctrine, "² when (1) the defendant is a public official asserting a qualified immunity defense, and (2) the issue appealed concerns whether the alleged facts show a violation of clearly established law. 472 U.S. 511, 527-29, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

In Johnson v. Jones, the Supreme Court held that the district court's determination, that the summary judgment record raised a genuine issue of material fact concerning an officer's conduct for qualified immunity purposes, was not a "final decision" under 28 U.S.C. § 1291. 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Thus, the district court's decision was not immediately appealable. Id. The Johnson court limited its rule of non-reviewability of qualified immunity orders to pure issues of fact. Id, at 313, 115 S.Ct. 2151. In other words, the Johnson court did not dismiss the interlocutory appeal on an issue of law concerning qualifier! immunity, but rather dismissed the appeal on the sole issue of disputed facts. Id. at 318, 115 S.Ct. 2151.

Timoney, Fernandez, Cannon, and Burden argue that this interlocutory appeal from the denial of qualified immunity under the First Amendment claims involves legal determinations, not factual issues, and thus, we have jurisdiction. Specifically, the district court found that Timoney, Fernandez, Cannon, and Burden violated the First Amendment and that the violations were clearly established. The district court decision denying qualified immunity on the grounds that Timoney, Fernandez, Cannon, and Burden's actions violated clearly established law is immediately reviewable because Timoney, Fernandez, Cannon, and Burden appeal on the basis that the alleged First Amendment violations were not clearly established. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773

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(1996) (finding interlocutory appeal available where "the District Court's denial of petitioner's summary judgment motion necessarily determined that certain conduct attributed to petitioner (which was controverted) constituted a violation of clearly established law"). This Court's appellate jurisdiction in matters challenging the flenial of qualified immunity in a motion to dismiss "extends only to the legal issues surrounding the district court's denial of [Timoney, Fernandez, Cannon, and Burden's] motions to dismiss, i.e., issues concerning whether [the Protesters'] complaint sufficiently alleged the violation of a clearly established right." GJR In vs., Inc. v. County of Escambia, 132 F.3d 1359, 1366 (11th Cir.1998). Moreover, interlocutory appeal is available when the denial of qualified immunity is only partially based on an issue of law. Id. (citation omitted). The fact that Timoney, Fernandez, Cannon, and Burden also argue that the Protesters did not meet the heightened pleading standard for § 1983 actions does not foreclose this Court's jurisdiction. At the motion to dismiss stage in the litigation, "the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined." Id. "...