[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10939 MAR 2, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-23005-CV-JEM
JEFFREY KEATING,
RICH HERSH,
BONNIE REDDING,
JASON KOTOCH,
RAYMOND DEL PAPA, et al.,
Plaintiffs-Appellees,
versus
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.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 2, 2010)
Before WILSON and ANDERSON, Circuit Judges, and RESTANI,* Judge.
WILSON, Circuit Judge:
This appeal stems from a 42 U.S.C. § 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, 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, Fernandez,
Cannon, and Major Adam Burden (“Burden”) of the Miami Police Department
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
2
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’
3
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 21–24. 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
4
constitutional violations against the Protesters, but they failed to do so. Id. at
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 Dismiss 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 rights 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
5
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,”1 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 (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 (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
1
Under Cohen v. Beneficial Industrial Loan Corp., a “collateral order” amounts to a
“final decision” under § 1291 if the order: (1) conclusively determines the disputed question, (2)
resolves an important issue completely separate from the merits of the action, and (3) will be
effectively unreviewable on appeal from the final judgment. 337 U.S. 541, 546–47 (1949).
6
fact. Id. at 313. In other words, the Johnson court did not dismiss the
interlocutory appeal on an issue of law concerning qualified immunity, but rather
dismissed the appeal on the sole issue of disputed facts. Id. at 318.
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 (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 denial 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
7
Burden’s] motions to dismiss, i.e., issues concerning whether [the Protesters’]
complaint sufficiently alleged the violation of a clearly established right.” GJR
Invs., 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.
“[W]hether a particular complaint sufficiently alleges a clearly established
violation of law cannot be decided in isolation from the facts pleaded.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1946 (2009).
Thus, because Timoney, Fernandez, Cannon, and Burden argue that the First
Amendment violations were not clearly established, we have jurisdiction over their
appeal from the denial of qualified immunity as to the Protesters’ First Amendment
claims. See GJR Invs., Inc., 132 F.3d at 1366. Additionally, our jurisdiction
extends to determine whether the Protesters’ complaint sufficiently alleges clearly
established constitutional violations. See Iqbal, 129 S. Ct. at 1947.
B. Jurisdiction over the Fourth Amendment Claims
8
The district court granted Timoney, Fernandez, Cannon, and Burden
qualified immunity as to the Protesters’ Fourth Amendment claims. It determined
that the “herding” of the Protesters away from the demonstration area constituted
an unlawful seizure in violation of the Fourth Amendment. However, the district
court found that the conduct did not violate clearly established law. Despite the
fact that the district court granted their motion to dismiss on the Protesters’ Fourth
Amendment claims, Timoney, Fernandez, Cannon, and Burden appeal the adverse
determination that their conduct constituted an unlawful seizure in violation of the
Fourth Amendment. Because Timoney, Fernandez, Cannon, and Burden were
granted qualified immunity, we do not have jurisdiction over this issue on
interlocutory appeal. Nor would we if Timoney, Fernandez, Cannon, and Burden
were appealing a final order.
First, this issue does not satisfy the Cohen test for immediate review on
interlocutory appeal because, regardless of a decision on the merits, the result is the
same: Timoney, Fernandez, Cannon, and Burden would still be entitled to qualified
immunity. Thus, this issue would not be unreviewable on appeal from the final
judgment. See supra note 1. Second, a party normally may not appeal from a
favorable judgment. See Lindheimer v. Ill. Bell Tel. Co., 292 U.S. 151, 176 (1934).
But see Forney v. Apfel, 524 U.S. 266, 271 (1998) (entertaining an appeal on a
9
collateral issue by a party who won below but did not receive the remedy
requested); Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 336 (1980)
(entertaining an appeal on a collateral issue by a party who won below and asserted
a “continuing stake in the outcome of the appeal”). Third, and most basically, the
Supreme Court has denied jurisdiction and discussed the lack of jurisdiction for
this type of appeal under procedurally similar circumstances. See Bunting v.
Mellen, 541 U.S. 1019, 1019 (2004) (denying certiorari on the issue of whether
state action was a constitutional violation, even though it was not clearly
established).2 For better or worse, whether on interlocutory appeal or appeal from
a final judgment, the Supreme Court has stated that an appellate court “reviews
judgments, not statements in opinions.” California v. Rooney, 483 U.S. 307, 311
(1987) (per curiam) (quotation omitted).
Although there are real concerns about the non-reviewability of adverse
findings in this situation,3 we do not have jurisdiction to review an appeal from the
2
The only way Timoney, Fernandez, Cannon, and Burden could have their claim heard
by this Court would be if the Protesters appealed the grant of qualified immunity in the motion to
dismiss as to their Fourth Amendment claims. See Kalka v. Hawk, 215 F.3d 90, 96 (D.C. Cir.
2000). Then, Timoney, Fernandez, Cannon, and Burden could cross-appeal the adverse
determination that their conduct violated the Fourth Amendment. Id. However, that situation
differs from the one here.
3
Although the Supreme Court in Bunting denied jurisdiction on this very issue before us,
appellate review of such adverse determinations is a topic of substantial discussion. Timoney,
Fernandez, Cannon, and Burden point out that Pearson v. Callahan, 129 S. Ct. 808, 820 (2009),
discusses the very issue that they faced because the district court followed the prescribed order
of determining whether an individual is entitled to qualified immunity under Saucier v. Katz, 533
10
district court’s adverse determination, that “herding” of the Protesters constituted
an unlawful seizure in violation of the Fourth Amendment because Timoney,
Fernandez, Cannon, and Burden were granted qualified immunity on the
Protesters’ Fourth Amendment claims.
U.S. 194, 201 (2001) (requiring a court to first determine whether there was a constitutional
violation, and second, to determine whether the violation was clearly established). However,
Pearson provides no guidance on whether we may review this issue on interlocutory appeal.
Pearson discussed the problem with addressing the existence of a constitutional violation first
when it stated:
Where a court holds that a defendant committed a constitutional violation but that
the violation was not clearly established . . . the defendant’s right to appeal the
adverse holding on the constitutional question may be contested. . . . [T]he
prevailing defendant faces an unenviable choice: compl[y] with the lower court’s
advisory dictum without opportunity to seek appellate [or certiorari] review, or
def[y] the views of the lower court, adher[e] to practices that have been declared
illegal, and thus invit[e] new suits and potential punitive damages.
Id. at 820 (alterations in original) (quoting Horne v. Coughlin, 191 F.3d 244, 247–48 (2d Cir.
1999)) (internal quotation marks omitted). Justice Scalia also voiced his concerns over the
unreviewability of the district court’s determination of whether conduct constitutes a
constitutional violation in Bunting, 541 U.S. at 1023–24 (Scalia, J., dissenting from denial of
certiorari). Justice Scalia stated that a party should be able to appeal when
a favorable judgment on qualified-immunity grounds would deprive a party of an
opportunity to appeal the unfavorable (and often more significant) constitutional
determination. That constitutional determination is not mere dictum in the
ordinary sense, since the whole reason we require it to be set forth (despite the
availability of qualified immunity) is to clarify the law and thus make unavailable
repeated claims of qualified immunity in future cases.
. . . Not only is the denial of review unfair to the litigant (and to the
institution that the litigant represents) but it undermines the purpose served by
initial consideration of the constitutional question . . . ”).
Id.
11
III. STANDARDS OF REVIEW
We review the denial of a motion to dismiss de novo and determine whether
the complaint alleges a clearly established constitutional violation, accepting the
facts alleged in the complaint as true, drawing all reasonable inferences in the
plaintiff’s favor, and limiting our review to the four corners of the complaint. St.
George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (citations
omitted). Once an officer raises the defense of qualified immunity, the plaintiff
bears the burden to show that the officer is not entitled to it. Id.
A. Qualified Immunity Standard
“The defense of qualified immunity represents a balance between the need
for a damages remedy to protect the rights of citizens and the need for government
officials to be able to carry out their discretionary functions without the fear of
constant baseless litigation.” GJR Invs., Inc., 132 F.3d at 1366. Under the doctrine
of qualified immunity, government officials acting within their discretionary
authority are immune from suit unless the official’s conduct “violates ‘clearly
established [federal] statutory or constitutional rights of which a reasonable person
would have known.’” Id. (alteration in original) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The Supreme Court has established a two-part test for
determining whether an officer is entitled to qualified immunity, and the district
12
court has discretion to determine in what order to address each part. Pearson, 129
S. Ct. at 818. The court must determine “whether [the] plaintiff’s allegations, if
true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736
(2002) (citing Saucier, 533 U.S. at 201). The court must also determine whether
the constitutional violation was clearly established. Saucier v. Katz, 533 U.S. at
201. If the plaintiff satisfies both parts of the test, then the officer is not entitled to
qualified immunity.
B. Supervisory Liability Standard
It is well established that § 1983 claims may not be brought against
supervisory officials on the basis of vicarious liability or respondeat superior.
Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994) (citing Hardin v.
Hayes, 957 F.2d 845, 849 (11th Cir. 1992)). However, supervisors are liable under
§ 1983 “either when the supervisor personally participates in the alleged
constitutional violation or when there is a causal connection between actions of the
supervising official and the alleged constitutional violation.” Gonzalez v. Reno,
325 F.3d 1228, 1234 (11th Cir. 2003) (citing Braddy v. Fla. Dep’t of Labor &
Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998)). A causal connection can be
established by, inter alia, “facts which support an inference that the supervisor
directed the subordinates to act unlawfully or knew that the subordinates would act
13
unlawfully and failed to stop them from doing so.” Id. at 1235.
C. Heightened Pleading Standard for § 1983 Actions
Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to state a cause of
action in “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Although Rule 8 “allows a plaintiff considerable leeway in
framing its complaint, this circuit, along with others, has tightened the application
of Rule 8 with respect to § 1983 cases in an effort to weed out nonmeritorious
claims, requiring that a § 1983 plaintiff allege with some specificity the facts which
make out its claim.” GJR Invs., Inc., 132 F.3d at 1367. Thus, a plaintiff must
allege some factual detail as the basis for a § 1983 claim. Id. In other words, “[t]o
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129
S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Therefore, in a § 1983 action, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.” Id. at 1948.
Timoney, Fernandez, Cannon, and Burden argue that the Protesters failed to
allege sufficient facts to establish a causal connection between their supervisory
actions and the alleged constitutional violations by the subordinate officers.
14
Therefore, we first review whether the Protesters’ complaint sufficiently alleges
violations of the First Amendment under a theory of supervisory liability. If the
Protesters allege First Amendment violations, we will determine whether such
violations were clearly established at the time the conduct occurred. If the
violations were clearly established, then Timoney, Fernandez, Cannon, and Burden
are not entitled to qualified immunity.
IV. DISCUSSION
Timoney, Fernandez, Cannon, and Burden argue that they are entitled to
qualified immunity from the Protesters’ First Amendment claims. First, they argue
that the Protesters’ complaint does not meet the heightened pleading standard for §
1983 actions to allege that their conduct rose to the level of constitutional
violations. They alternatively argue that if the Protesters sufficiently allege
constitutional violations, those First Amendment violations were not clearly
established at the time of the demonstration in 2003.
A. The Protesters’ Complaint Sufficiently Alleges Violations of Their First
Amendment Rights as to Timoney, Fernandez, and Cannon, but Not as
to Burden
Timoney, Fernandez, Cannon, and Burden allege that the district court erred
in applying the heightened pleading standard for § 1983 actions. The Protesters
allege that Timoney, Fernandez, Cannon, and Burden were all authorized
15
decisionmakers present on the scene where the FTAA demonstration occurred.
They further allege that Timoney, Fernandez, Cannon, and Burden proximately
caused the violations of the Protesters’ First Amendment rights.
1. Supervisory Liability for Directing Unlawful Acts in Violation of
the First Amendment as to Timoney, Fernandez, and Cannon
Specifically, the Protesters allege that Timoney, who is the Chief of the
Miami Police Department, approved orders permitting the police line to advance
while beating unarmed demonstrators and discharging projectiles and tear gas.
D.E. 45 at 44. The Protesters allege that Fernandez, Deputy Chief of the Miami
Police Department and second in command to Timoney, made the decision to
utilize “herding techniques” to corral the demonstrators by personally directing the
police lines to march northward. Id. at 43. The Protesters allege that Cannon, a
Captain in the Miami Police Department, directed the police lines to begin
discharging weapons at the unarmed demonstrators. Id.
Timoney, Fernandez, and Cannon argue that merely being present among
numerous other officers at the time the Protesters were injured, and that
authorizing the subordinate officers to discharge a variety of weapons is
insufficient to establish that they, in their supervisory capacities, committed a
constitutional violation. Specifically, Timoney, Fernandez, and Cannon argue that
the Protesters were required to allege that they directed specific officers to
16
discharge weapons and identify the specific police officers who injured the
Protesters. This argument is without merit because it is irrelevant which officer
inflicted injury or the constitutional violation, so long as the violation was at the
direction of Timoney, Fernandez, or Cannon, in his supervisory capacity. See
Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009) (stating that
identification of injured individuals does not apply to First Amendment claims, and
the same reasoning can be applied to support that plaintiffs need not allege which
subordinates caused the alleged injury in supervisory liability claims under §
1983).
In light of the Protesters’ allegations, we find that they satisfied the
heightened pleading requirement for a § 1983 claim under a supervisory liability
theory by alleging a causal connection established by facts that support an
inference that Timoney, Fernandez, and Cannon directed the subordinate officers
to act unlawfully. See Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003);
Post v. City of Fort Lauderdale, 7 F.3d 1552, 1561 (11th Cir. 1993). The
Protesters allege that Timoney, Fernandez, and Cannon committed a violation of
the Protesters’ First Amendment rights because their commands caused the
subordinate police officers to disperse a crowd of peaceful demonstrators,
including the Protesters, who were exercising their freedom of expression. Thus,
17
our analysis can proceed to determine whether such constitutional violations were
clearly established at the time Timoney, Fernandez, and Cannon directed such
unlawful acts. See infra Part IV.B.
2. Supervisory Liability for Failing to Stop the Unlawful Acts in
Violation of the First Amendment as to Timoney, Fernandez,
Cannon, and Burden
The Protesters allege that Timoney, Fernandez, Cannon, and Burden, in their
supervisory capacities, violated their First Amendment rights by failing to stop the
unlawful actions of the subordinate officers. Specifically, the Protesters allege that
Timoney and Burden were together when the Protesters were assaulted, standing
less than 100 feet from the skirmish line with an unrestricted view of the “herding”
of the demonstrators and discharge of projectiles and tear gas, yet failed to stop the
police action. D.E. 45 at 60–61. The Protesters further allege that at the precise
time they were assaulted, Fernandez and Cannon were close to the rear of the
skirmish line with an unrestricted view of the “herding” of the demonstrators and
discharge of projectiles and tear gas, yet failed to stop the police action. Id.
Timoney, Fernandez, Cannon, and Burden argue that in order to state a
supervisory liability claim for failure to stop, the Protesters were required to allege
facts to establish any necessity or real opportunity for them to intervene in the
conduct of the subordinate officers. They rely on Ensley v. Soper, which involved
18
a direct failure to intervene claim under the Fourth and Fourteenth Amendments,
requiring the allegations to include facts showing the necessity or real opportunity
for the defendant-officers to intervene in a fellow officer’s unlawful conduct. 142
F.3d 1402, 1407–08 (11th Cir. 1998). However, the Protesters allege a failure to
stop claim under a theory of supervisory liability, which does not require such
allegations. A failure to stop claim under a theory of supervisory liability only
requires that the supervisor (1) have the ability to prevent or discontinue a known
constitutional violation by exercising his or her authority over the subordinate who
commits the constitutional violation, and (2) subsequently fails to exercise that
authority to stop it. See Gonzalez, 325 F.3d at 1234 (requiring only allegations of a
“causal connection between actions of the supervising official and the alleged
constitutional violation”). The difference between a direct failure to intervene
claim and a failure to stop claim under a theory of supervisory liability lies in the
position and authority of the defendant with respect to the person who commits the
constitutional violation.
Because Timoney, Fernandez, and Cannon had the authority, and exercised
that authority, to direct the subordinate officers to engage in unlawful acts to
violate the Protesters’ First Amendment rights, they likewise had the authority to
stop the subordinate officers from exercising such unlawful acts. Therefore,
19
because Timoney, Fernandez, and Cannon knew that the subordinate officers
would engage in unlawful conduct in violation of the Protesters’ First Amendment
rights by directing such unlawful acts, they also violated the Protesters’ First
Amendment rights by failing to stop such action in their supervisory capacity.
Thus, their alleged failure to stop the subordinate officers from acting unlawfully
caused the First Amendment violations, and we proceed to inquire whether their
failure to stop violated clearly established law. See infra Part IV.B.
However, Burden’s alleged failure to stop the subordinate officers’ unlawful
activity did not cause the violations of the First Amendment because Burden did
not have the authority to stop the subordinate officers from violating the Protesters’
First Amendment rights, even though he was an authorized decisionmaker. Burden
did not direct the subordinate officers to engage in unlawful conduct that violated
the Protesters’ First Amendment rights. Burden’s ranking as a Major in the Miami
Police Department is subordinate to that of Chief Timoney, and Chief Timoney
directed the subordinate officers to engage in unlawful conduct. Burden and
Timoney stood next to each other during the demonstration. It would be
unreasonable to have expected Burden to stop the subordinate officers’ conduct
after Timoney directed the subordinate officers to engage in unlawful acts because
Burden did not have any authority to contravene Timoney’s orders. Additionally,
20
the Protesters only allege that Burden was present when the subordinate officers
engaged in the unlawful activity. Therefore, Burden did not violate the Protesters’
First Amendment rights by failing to stop the subordinate officers from conducting
such unlawful activity because his inaction did not cause the constitutional
violations. The Protesters failed to allege a constitutional violation against Burden,
and thus, Burden is entitled to qualified immunity.
B. It Is a Violation of Clearly Established Law to Direct and Fail to Stop
Unlawful Acts in Violation of the First Amendment
Under the facts alleged in the Protesters’ complaint, Timoney, Fernandez,
and Cannon violated the Protesters’ First Amendment rights in their supervisory
capacities by directing the subordinate officers to use less-than-lethal weapons to
disperse a large crowd of allegedly peaceful demonstrators and by failing to stop
the subordinate officers from doing the same. Timoney, Fernandez, and Cannon
argue that their conduct in violation of the First Amendment was not clearly
established.
In order for the Protesters to show that the constitutional violation was
clearly established, they must demonstrate (1) “that a materially similar case has
already been decided, giving notice to the police;” (2) “that a broader, clearly
established principle should control the novel facts in this situation;” or (3) “this
case fits within the exception of conduct which so obviously violates [the]
21
constitution that prior case law is unnecessary.” Mercado v. City of Orlando, 407
F.3d 1152, 1159 (11th Cir. 2005) (citations omitted). The Protesters “must point to
law as interpreted by the Supreme Court, the Eleventh Circuit, or the Supreme
Court of Florida” to show that the constitutional violation was clearly established.
Id. We find that Timoney, Fernandez, and Cannon violated the Protesters’ clearly
established constitutional rights because, under the second Mercado category, the
broader, clearly established principles involving First Amendment rights should
govern the specific facts of this case.
Timoney, Fernandez, and Cannon argue that they are entitled to qualified
immunity with respect to their First Amendment violations because it is not clearly
established that it is unconstitutional “for a supervisory officer to give an order to
other officers to use less-than-lethal weapons to disperse a crowd at a large public
demonstration,” or “for a supervising officer to fail to intervene with regard to
another officer’s use of less-than-lethal weapons to disperse a crowd at a large
public demonstration.” Appellants’ Br. at 24–25. Although our research has
located no cases that illustrate a factually identical violation of the First
Amendment, “[p]rior cases clearly establishing the constitutional violation . . .
need not be ‘materially similar’ to the present circumstances so long as the right is
‘sufficiently clear that a reasonable official would understand that what he is doing
22
violates that right.’” Amnesty Int’l, USA, 559 F.3d at 1185 (quoting Hope, 536
U.S. at 739). “There need not . . . be a prior case wherein ‘the very action in
question has previously been held unlawful.’” Id. (quoting Hope, 536 U.S. at
741).4
Here, the Protesters had a clearly established right to assemble, protest, and
demonstrate peacefully, and they sufficiently allege that they engaged in a peaceful
demonstration on public property. As Judge Marcus emphasized in his
concurrence in Amnesty Int’l, USA,
[i]f there was any lingering question about whether police officers
could completely prohibit individuals or groups from assembling,
speaking, and distributing literature, the Supreme Court put an end to
it in 1983 when the Court decreed that ‘[t]here is no doubt that as a
general matter peaceful picketing and leafletting are expressive
activities involving ‘speech’ protected by the First Amendment.’
Id. at 1187 (Marcus, J., concurring) (alteration in original) (quoting United States
v. Grace, 461 U.S. 171, 176 (1983)).5 Thus, the Protesters’ alleged
4
We are aware that the Southern District of Florida granted qualified immunity to
Timoney, Cannon, and Burden in Rauen v. City of Miami, S.D. Fla. 2007, ___ F. Supp. 2d ___,
at * 21 (No. 06-21182-CIV Mar. 2, 2007), which was based on the same incident as this case, on
a claim for failure to intervene to prevent violations of the First Amendment under a theory of
supervisory liability. The district court in Rauen held that the violation was not clearly
established because “the dearth of case law on this issue, and the lack of any U.S. Supreme
Court, Eleventh Circuit, or Florida Supreme Court case finding liability for failure to intervene
to prevent violations of the First Amendment, evidence a lack of clearly established law.” Id.
However, because a violation can be clearly established without prior case law, Rauen does not
affect our decision in this case.
5
Because Amnesty Int’l, USA was not the law at the time of the FTAA demonstrations,
we do not reference it as a materially similar case that should have put Timoney, Fernandez, and
23
conduct—assembling, peacefully demonstrating, and protesting—constituted
expressive activities squarely protected by the First Amendment. There cannot be
any doubt that Timoney, Fernandez, and Cannon’s conduct alleged in the
complaint utterly and completely eviscerated the Protesters’ ability to continue
participation in such protected expressive activity. Thus, the amount of force used
to stop the demonstration was immaterial.
Timoney, Fernandez, and Cannon violated clearly established law when, in
their supervisory capacities, they directed their subordinate officers to use less-
than-lethal weapons to disperse a crowd at a large public demonstration and
consequently failed to stop such conduct. The constitutional violation was clearly
established because a broader, clearly established principle, that peaceful
demonstrators have a First Amendment right to engage in expressive activities,
should control the novel facts in this situation. See Mercado, 407 F.3d at 1159.
Timoney, Fernandez, and Cannon, in directing their subordinates to use less-than-
lethal weapons to disperse a crowd of peaceful demonstrators, were aware that
their orders to their subordinate officers would violate the Protesters’ First
Amendment rights. Additionally, Timoney, Fernandez, and Cannon were aware
Cannon on notice; rather, we use it to show that Timoney, Fernandez, and Cannon should have
known of their violations of the First Amendment at the time of directing and failing to stop the
unlawful conduct.
24
that their failure to stop the use of less-than-lethal weapons to disperse a crowd of
peaceful demonstrators would violate the Protesters’ First Amendment rights. The
direction of unlawful conduct and failure to stop such unlawful conduct in their
supervisory capacities caused the violation of the Protesters’ clearly established
constitutional rights because it should have been obvious to Timoney, Fernandez,
and Cannon that their conduct would violate the Protesters’ First Amendment
rights. Therefore, Timoney, Fernandez, and Cannon are not entitled to qualified
immunity as to the Protesters’ First Amendment claims for directing unlawful
actions and failing to stop unlawful actions under a theory of supervisory liability.
V. CONCLUSION
The Protesters sufficiently allege that Timoney, Fernandez, and Cannon
violated their clearly established First Amendment rights in their supervisory
capacities by directing and failing to stop subordinate officers to use less-than-
lethal weapons to disperse a crowd of peaceful demonstrators. Therefore, the
district court was correct in denying qualified immunity to Timoney, Fernandez,
and Cannon in their motion to dismiss the First Amendment claims. However, the
Protesters failed to allege that Burden violated their First Amendment rights in his
supervisory capacity by failing to stop the subordinate officers from using less-
than-lethal weapons to disperse a crowd of peaceful demonstrators because Burden
25
was merely present and could not contravene the orders directing such unlawful
activity given by Chief Timoney. Therefore, Burden is entitled to qualified
immunity on the Protesters’ First Amendment claims, and we reverse the district
court’s denial of qualified immunity as to Burden. We dismiss Timoney,
Fernandez, Cannon, and Burden’s challenge to the district court’s finding that
“herding” of the Protesters constituted an unlawful seizure in violation of the
Fourth Amendment for lack of jurisdiction because they were granted qualified
immunity on the Protesters’ Fourth Amendment claims.
AFFIRMED in part, REVERSED in part, and DISMISSED in part.
26