McGriff v. City of Miami Beach

Decision Date30 November 2020
Docket NumberCase No. 1:20-cv-22583-UU
Citation522 F.Supp.3d 1225
CourtU.S. District Court — Southern District of Florida
Parties Jared MCGRIFF, Octavia Yearwood, Naiomy Guerrero, and Rodney Jackson, Plaintiffs, v. CITY OF MIAMI BEACH, Dan Gelber in his official capacity as Mayor of the City of Miami Beach and in his individual capacity, and Jimmy Morales in his official capacity as City Manager of the City of Miami Beach and in his individual capacity, Defendants.

Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Alan Levine, Pro Hac Vice, Matthew McElligott, c/o Valiente, Carollo & McElligott, PLLC, Miami, FL, for Plaintiffs.

Robert F. Rosenwald, Jr., City of Miami Beach City Attorney's Office, Miami Beach, FL, for Defendant City of Miami Beach.



THIS CAUSE comes before the Court on (1) Defendant City of Miami Beach's Motion to Dismiss Plaintiffs’ First Amended Complaint, or, in the Alternative, for Summary Judgment (D.E. 21) (the "City's Motion"); (2) Defendant Mayor Dan Gelber's Motion to Dismiss Plaintiffs’ First Amended Complaint, or, in the Alternative, for Summary Judgment (D.E. 22) (the "Mayor's Motion"); and (3) Defendant City Manager Jimmy Morales's Motion to Dismiss Plaintiffs’ First Amended Complaint, or, in the Alternative, for Summary Judgment (D.E. 23) (the "City Manager's Motion").

THE COURT has considered the Motions, pertinent portions of the record, and is otherwise fully advised in the premises.

I. Background

To resolve the pending Motions, the Court accepts as true the facts alleged in Plaintiffs’ First Amended Complaint (the "Complaint") (D.E. 9), and relies on the stipulated facts and documents supplied by the parties (D.E. 13 & D.E. 18).

A. The Parties

Plaintiff Jared McGriff ("McGriff") is an artist and marketing manager. Compl. ¶ 16. Plaintiff Octavia Yearwood ("Yearwood") is an artist, arts educator, and art curator. Id. ¶ 19. Plaintiff Rodney Jackson ("Jackson") is an artist and art curator. Id. ¶¶ 12, 15. Plaintiff Naiomy Guerrero ("Guerrero") is an art curator who, at the time of these events, was a curatorial fellow at the Pérez Art Museum of Miami ("PAMM"). Id. ¶ 21.

Defendant City of Miami Beach (the "City") is a municipality organized and existing under the laws of the State of Florida and located in Miami-Dade County, Florida. Id. ¶ 22. Defendant Dan Gelber ("Mayor Gelber") was the Mayor of the City of Miami Beach at the time of the facts alleged. Id. ¶ 23. Defendant Jimmy Morales ("City Manager Morales") was the City Manager of the City of Miami Beach at the time of the facts alleged. Id. ¶ 24. Mayor Gelber and City Manager Morales are being sued in their individual and official capacities. Id. ¶¶ 23, 24.

B. ReFrame Miami Beach

Miami Beach has an ugly history of racism, segregation, and discrimination. See id. ¶ 2. In recent years, the response of local law enforcement to the celebration of Memorial Day, which, on Miami Beach, has come to be known as Urban Beach Weekend ("UBW"), has reminded some of that troubled history. Id. ¶ 3. Over the past decade, tens of thousands of students and other young people, most of them Black and Latino, have come to Miami Beach during UBW. Id. ¶ 3. During UBW in 2011, Raymond Herisse ("Herisse"), a Black, Haitian-American man, was shot and killed by Miami Beach police officers. Id. ¶ 5; D.E. 21-1.

In the Spring of 2019, the City decided to fund the creation of a series of art installations for display on Miami Beach during that year's UBW. Compl. ¶ 1. Calling the project "ReFrame Miami Beach," the City said that "ReFrame sparks crucial conversations about inclusion, surveillance, and propaganda using the works of local artists, curators, and organizers." Id. ¶ 25. The theme of the event was to be "Trust as Currency." Id.

In April 2019, Plaintiffs McGriff and Yearwood discussed ReFrame Miami Beach with two City employees in the City's Department of Tourism and Culture: Director Matt Kenney ("Kenney") and Cultural Affairs Manager Brandi Reddick ("Reddick"). Id. ¶ 26. McGriff and Yearwood began working on the project shortly thereafter and contacted others in the arts community, including Plaintiffs Jackson and Guerrero, to participate in the project. Id. ¶¶ 27, 28.

On May 9, 2019, McGriff and the City signed a Professional Services Agreement pursuant to which Quinn Projects LLC, McGriff's production company, would provide certain production services. Id. ¶ 29; D.E. 9-1. The same day, Yearwood and the City signed a Professional Services Agreement pursuant to which Team Ohhh LLC, Yearwood's production company, would provide certain production services. D.E. 13-2. The two Professional Services Agreements are essentially identical and will be referred to as the "Agreement" for ease of reference. The Agreement refers to Quinn Projects LLC and Team Ohhh LLC as the Consultant(s), and "[f]or the purposes of this Agreement, Consultant shall be deemed to be an independent contractor ... of the City." D.E. 9-1 at 1; D.E. 13-2 at 1. Under the Agreement, Quinn Projects LLC and Team Ohhh LLC were to co-produce the Project described in Exhibit A. D.E. 9-1 at 2; D.E. 13-2 at 2.

Exhibit A, titled "Scope of Services," states that Quinn Projects LLC and Team Ohhh LLC "would provide the cultural programming for ‘Trust as Currency’ for Memorial Day Weekend, May 23–27, 2019." D.E. 9-1 at 13; D.E. 13-2 at 13. Exhibit A noted that the art installation that the Quinn Projects LLC and Team Ohhh LLC would exhibit at Lincoln Road in an "empty storefront" was to be called "I See You, Too ," which was to be "about how propaganda and misinformation have compromised us." D.E. 9-1 at 13; D.E. 13-2 at 13. The City entered into a Temporary License Agreement with a third-party limited liability company, whereby the licensee City agreed to license the privately-owned building located at 737 Lincoln Road, Miami Beach, Florida 33139, from May 6, 2019 through May 31, 2019, "for the sole purpose of gallery exhibits." D.E. 13-5.

Section 2.1 of the Agreement provides that "all services provided by the Consultant shall be performed in accordance with the Proposal and to the reasonable satisfaction of the City Manager." Id. Exhibit A states that "[a]ll installations shall be subject to review and approval by the City Manager's designee." D.E. 9-1 at 13; D.E. 13-2 at 13. Section 9.3, titled "Patent Rights; Copyright; Confidential Findings," states that any work produced for the exhibits and installations "are intended to be the sole and exclusive property of the City" and "shall not otherwise be made public and/or disseminated by Consultant, without the prior written consent of the City Manager." Id. at 7.

Under the Agreement, the I See You, Too installation was to be co-curated by Yearwood and Guerrero; the Agreement does not mention Jackson. D.E. 9-1 at 13; D.E. 13-2 at 13. In discussing what would be exhibited in I See You, Too , Plaintiffs stressed that their central commitment, in conformity with the purpose of ReFrame, was depicting the truth about the City's historical relationship with the Black community, as well as to permit open and honest conversations about that history. Compl. ¶ 34.

C. The Herisse Memorial

Plaintiffs curated and/or created works for I See You, Too in accordance with the Agreement. Id. ¶ 35. There were several sections in I See You, Too , including a "Memorial to Raymond Herisse" painting (the "Herisse Memorial"), which Jackson created. Id. ; D.E. 9-2. The Herisse Memorial included a 4x4 foot vinyl portrait, with written text next to it stating the following:

Ha[i]tian-American Raymond Herisse was 22 years old when he was shot to death by Miami Beach and Hialeah police officers on Collins Avenue during Urban Beach Week in 201[1]. 116 shots were fired by the police, four bystanders were wounded, and 12 police officers participated in the shooting. Police suggested Herisse was firing a gun from his vehicle, gunshot residue tests released years later proved Herisse never fired a weapon that day. An examination of the record by The Miami Herald found the police narrative inconsistent, contradictory, and missing key information. His shooting changed the way Miami Beach police now interact with motorists, as now they cannot shoot into a moving vehicle unless someone inside the vehicle displays a weapon or fires first. This memorial is to honor Herisse, to affirm #blacklivesmatter and call into question the excessive force, racial discrimination, violence, and aggression often present in interactions between police and unarmed black civilians

Id. ¶ 35; D.E. 9-3 (copy of description). "In addition, candles had been placed below the image to convey the sense that the piece was intended as a memorial to celebrate the life of Raymond Herisse." Compl. ¶ 35(b).

On May 25, 2019, Kenney spoke to Yearwood and advised that the Miami Beach Police Department objected to the Herisse Memorial and that the City required that the Herisse Memorial be taken down, and that if it was not taken down, the entire I See You, Too installation would be closed. Id. ¶¶ 36, 37. That afternoon, Plaintiffs took down the Herisse Memorial. Id. ¶ 38. In its place, they posted a sign that read, "This artwork has been removed at the request of the Miami Beach Police." Id.

A few days later, a City spokesperson commented on the removal of the Herisse Memorial. Id. ¶ 39. While stating that the "purpose of the ReFrame cultural programming this past weekend was to create an opportunity for inclusiveness and mutual exchange," the spokesperson said that the "City Manager felt that the panel in the one particular art installation regarding the incidents of Memorial Day weekend in 2011 did not achieve this objective." Id. (quoting Jessica Lipscomb, Miami Beach Censors Black Artist's Tribute to Police-Shooting Victim , MIAMI NEW TIMES (May 29, 2019 8:04 a.m.),...

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