United States Court of Appeals, Eleventh Circuit.

No. 95-4996. Michael C. GOLD, Plaintiff-Appellee,

v. CITY OF MIAMI, a Florida Municipal Corporation, Defendant, Calvin Ross, individually, Rafael Suarez, i ndividually, Jorge Perez, individually, William Campbell, individually, Defendants-Appellants. April 7, 1998. Appeal from the United States Di strict Court for the Southern Di strict of Florida (No. 92-1673-CIVJWK), James W. Kehoe, Judge.
ON PETITION FOR REHEARING (Opinion Sept. 17, 1997, 11th Cir., 121 F.3d 1442). Before HATCHETT, Chief Judge, and TJOF LAT, 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; Elev enth 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 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 theFirst Amendment fully protects speech critical of police officers and a wealth of Florida Supreme Court precedent declining to apply the Florida di sorderly 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 ha d 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 arre sted 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 app ear 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 U.S. 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. Ther e is nothing in the facts of this case even remotely to suggest that Gold's speech could be constr ued as falling within the very narrow category of fighting words or any other category of constitu tionally 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 showna 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 emphasi zes 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, --- U.S. ----, 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 statut ory rights. Comparing the "clearly established" concept in qualified immunity to the "fair warning" standard for a c onviction 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 violat es that right".... [B]oth [the "clearly established" test and the "fair warn ing" 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) th e same protection from civil liability and its consequences that individuals have traditi onally 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). 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 dis tinctions 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 he r 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 ques tion, 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 Go ld'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 specifi cally 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 th e U.S. 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, reasoningthat "[t]he Constitution does not a llow 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) (overt urning conviction under disorderly conduct statute where "petitioner was arrested and convict ed 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 narrower application where, as here, an individual's speech offends a police officer. See Hill, 482 U.S. at 462, 107 S.Ct. at 2510. As we have prev iously recognized, a police officer , "by virtue of his profession or training[, is] expected to absorb a certain amount of abuse without retaliating...." Lamar v. Banks, 684 F.2d 714, 718 n. 13 (11th Cir.1982); see also Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J., c oncurring) ("[A] properly trained officer may reasonably be expected to "exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to "fighting words.' ") (quoting Lewis v. City of New Orleans, 408 U.S. 913, 913, 92 S.Ct. 2499, 2499, 33 L.Ed.2d 321 (1972) (Powell, J., concurring)). As the Supreme Court observed in Hill, " "[s]peech is often provocative and challenging.... [But it] isnevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance,

or unrest. ' " Hill, 482 U.S. at 461, 107 S.Ct. at 2509 (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895-96, 93 L.Ed. 1131 (1949) (emphasis added)); accord Monroe v. State Court of Fulton County, 739 F.2d 568, 575 (11th Cir.1984) ("A func tion of free speech is to invite dispute."); Sweatt v. Bailey, 876 F.Supp. 1571, 1580 (M.D.Ala.1995) ("[C]alling a law enforcement officer "an ass' within his earshot in the 1990's should not provoke a violent reaction and therefore does not fall within the "fighting words' doctrine."). Florida Law Consistent with these established First Ame ndment principles, Florida law protects the right of individuals to criticize the conduct of police o fficers, even using unpleasant and offensive words. Indeed, as the panel explicitly recognized, the Florid a Supreme Court, in a series of cases involving speech critical of the police, has "made it clear th at a person does not violate the disorderly conduct law merely by annoying those around [him] or by em ploying profane language to express outrage." Gold, 121 F.3d at 1445. Gold's actions fit squarely within this principle.
In State v. Saunders, 339 So.2d 641 (Fla.1976), the Florida Supreme Court held that Florida's disorderly conduct statute must be construed in li ght of the First Amendment and narrowed the reach of the statute to render it constitutional. The Saunderscourt construed the disorderly conduct statute so that it shall hereafter only apply either to words which "by their very utterance ... inflict injury or tend to incite an immediate breach of the peace," or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except "fighting words" or words like shouts of "f ire" in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and "the danger that a citizen will be punished as a criminal for exercising his right of free speech." With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever.Id. at 644 (citations omitted). The Florida Supreme Court's cases construing the disorderly conduct statute in circumstances similar to those presented in this case, decided both before and after Saunders, clearly establish that the officers in this case could not have reasonably believed that they had probable cause to arrest Gold for criticizing the police. As the panel's opinion again recognizes, in Morris v. State, 335 So.2d 1 (Fla.1976), the Florida Supreme Court reversed a conviction for "disorderly conduct where a defendant merely directed profane language at police officers in the presence of others," Gold, 121 F.3d at 1445—precisely what Gold did here. Likewise, in Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973), the Florida Supreme Court ove rturned two disorderly conduct convictions, finding that the defendants' threatening comments to police officers and use of an "intemperate expletive or two" were insufficient to sustain the convictions. "In neither case was there any evidence that the actions of any of the appella nts were more than annoying to those around them, and a violation ... requires more than the creation of a mere annoyance." Id. at 670; see also White v. State, 330 So.2d 3, 5 (Fla.1976) ("The statute must not be construed to limit the use of a socially impermissible word merely as a tool of communication."). Indeed, in White, the Florida Supreme Court expressly recognized that "protected speech may provoke violent dissent," but found that suchdisagreement was not a basis for criminally punishing speech. Id. at 6. To permit the imposition of criminal sanctions merely because an individual's words "may have offended the sensibilities of [a police officer] and others who heard them" would be inconsistent with the core principle of the First Amendment: "the right vigorously to advance a minority opinion even though that opinion may anger others and arouse forceful disagreement." Id. (discussing Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973)). The Whitecourt drew a distinction between "mere word s, used as a tool of communication," whichare protected "even though they may not be acceptable in certain strata of society," and the use of words to "invade the rights of others to pursue their lawful activities." Id. at 7. Finding the latter to be unprotected, the court found that the defendant could be convicted for screaming at the top of his lungs for several minutes at a police station, dist urbing the other people at the station and impeding their work. Thus, White's words were not punished because they were offensive, but because "by their very decibel count, [those words] did inva de the right of others to pursue their lawful activities." Id. at 6. Indeed, White's "conduct would have been equally disorderly had he merely recited "Mary Had a Little Lamb' in the same tone and under similar circumstances." Id. at 7. Ignoring its context in White, the panel pointed to the language in Whitethat " "[i]t is the degree of loudness, and the circumst ances [under] which [the speech is ] uttered, [that] takes [it] out of the constitutionally protected area,' " Gold, 121 F.3d at 1445 (citations omitted), to suggest that because of the "fact-intensive nature of the [First Amendment] inquiry," id. at 1446, the officers did not have fair warning that their arrest of Gold was unconstitutional. This completely misses the mark. It is true that the First Amendment inquiryin this case is a fact-specific one, requiring us to determine whether the police officers could reasonably have believed that Gold's words " "inflict[ed] injury or tend[ed] to incite an immediate breach of the peace'...." Saunders, 339 So.2d at 644 (quoting White, 330 So.2d at 7). While there will undoubtedly be some situations in which the facts will legitimately give the police arguable probable cau se to believe that an individual's speech meets this standard, we are not faced with such a s ituation here. The panel does not even attempt to demonstrate that a police officer could reasonably have believed that Gold's speech constituted fighting words or any other category of proscribablespeech. Nor could it. Here there was no crowd to incite; there were no persons disturbed by Gold's speech. Th ere were only police officers who1 As described in the panel opinion, the only evidence that Gold's comment had any effect whatsoever on anyone other than the arresting officers was that a couple waiting in line, observing the police's treatment of Gold, stated, "I can't believe they're doing this." There was also evidence that the couple spoke with Gold for several minutes. heard unpleasant criticism and two bystanders con cerned about the police's treatment of Gold. 1 At best, the evidence showed that Gold's statements attracted the attention of the two bystanders, but this does not suffice to give the officers arguable probable cause. At worst, and clearly the most likely scenario, the evidence suggests that the officer s arrested Gold to retaliate against him for his criticism of their performance—a blatant violation of the First Amendment principles set forth in Hill. We may not shirk our obligation to consider whether anyfacts exist to support arguable probable cause simply because the governing standard is a fact-specific one. Cf. Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.1997) (analyzing "multif actored case-by-case balancing test" in concluding that officer's use of force "was so far beyond the hazy borde r between excessive and acceptable force that Mattox had to know that he was violating the Constitution"). The court also claims that there are "varying views in the Florida ap pellate courts of what constitutes legally proscribed disorderly conduct." Gold, 121 F.3d at 1446. But there are no "varying views" in the Florida Supreme Court—th e only state court relevant for qualified immunity
purposes. See Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n. 4 (11th Cir.) (en banc) (qualified immunity analysis looks to "decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, [and] the highest court of the state where the case arose"), cert. denied, --- U.S. ----, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997); Hamilton v. Cannon, 80 F.3d 1525, 1532 n. 7 (11th Cir.1996) (same). Assuming, arguendo, that the opinions of the intermediate state appellate courts are relevant here, they, likewise, cannot fairly be characteri zed as expressing "varying views." The principles set forth by the Florida Supreme Court in Saunders, Gonzales, White, and Morris have regularlybeen applied by Florida appellate courts to overturn convictions based on facts similar to those here. The panel ignores this long line of cases in which the courts have refused to apply the Florida disorderly conduct statute to speech critical of the police, citing instead only a single case to support its position, the decision in L.J.M. v. State, 541 So.2d 1321 (Fla. 1st DCA 1989). As explained below, however, L.J.M. is wholly inapposite here. At the time of Gold's arrest, there were no fewe r than five precedents from the state district appellate courts that made clear that Gold's arrestviolated clearly established law. For example, in Harbin v. State, 358 So.2d 856 (Fla. 1st DCA 1978), a woman was arrested for directly cursing a Deputy Sheriff who had been sent to accompany he r husband to the couple's trailer while he picked up his clothes after a domestic dispute. She conte nded that her "mere words" were not sufficient to justify a disorderly conduct arrest under the latest Florida Supreme Court decisions. Quoting from Saunders, Whiteand Morris, the district court of appeals agreed, finding that Harbin's speech did not constitute fighting words under the Florida precedents: The focus of our inquiry here, then, must revolve around whether appellant's admittedly profane words tended to "incite an immediate breach of the peace."... [T]he most that can be said about appellant's epithets is that they were offensive to the deputy who made the arrest and perhaps an object of curiosity to the neighbor who opened her window. Id. at 857. Likewise, in K.Y.E. v. State, 557 So.2d 956 (Fla. 1st DCA 1990), a Florida appellate court overturned defendant's disorderly conduct c onviction for continually singing "fuck the police" in public. The court found "no evidence" that the singing "evoked a response tending to inflict injury or incite an imme diate breach of the peace." Id. at 957. Defendant's singing, "while annoying and offensive to the arresting o fficer, at best contributed to attracting a group of curious onlookers, but ... did not breach the peace." Id. See also D.C.E. v. State, 381 So.2d 1097, 1099 (Fla. 1st DCA 1979) (holding a minor who shouted "f ___ pigs" three times at po lice officers from the window of his car at a busy intersection did not violate disorderly conduct ordinance); Clanton v. State, 3572 Florida cases decided after the date of Gold's arrest confirm that Gold's arrest was contrary to clearly established Florida law. See K.S. v. State, 697 So.2d 1275, 1276 (Fla. 3d DCA 1997) (reversing disorderly conduct conviction where de fendant's loud protests of police conduct "were not directed at the crowd but were instead a coarse expression of frustration at what K.S. perceived was an unjust accusation"); Miller v. State, 667 So.2d 325, 328 (Fla. 1st DCA 1995) ("Pursuant to Saundersand its progeny, ... there must be evidence of something more than loud or profane language or a belligerent attitude."); B.R. v. State, 657 So.2d 1184, 1185 (Fla. 1st DCA 1995) ("Although B.R.'s language was frustrating and annoying to the officer, there was no evidence that her screaming was of such a nature as to incite anyone in the area to an immediate breach of the peace."); L.A.T. v. State, 650 So.2d 214, 217-18 (Fla. 3d DCA 1995) (holding a " "fighting words' finding ... constitutionally unjustified as a matter of law" where "words neither themselves urged the crowd to respond nor actually had that effect"). So.2d 455, 456-57 (Fla. 2d DCA 1978) ( holding that man who loudly ye lled at a police officer who opened his passenger door that he "had no damn right to open the door" did not violate disorderly conduct statute); Phillips v. State, 314 So.2d 619, 621-22 (Fla. 4th DCA 1975) (holding that an officer lacked probable cause to arrest a man who said "F___ you" to a police officer). 2These cases make clear that the officers could not have reasonably believed that they had probable cause to arrest Gold since, as discussed above, his words, though offensive to the police, did not incite an immediate breach of the peace, but simply attracted the attention of two curious bystanders.
L.J.M. does not counsel a different conclusion. In L.J.M., two officers were standing at the side of the street talking to a group of people wh en the defendant directly approached them and addressed certain remarks to th em concerning his arrest the night before on theft charges. Defendant's statements were l oud and rude, and "everybody was watc hing him as he yelled at [one of the police officers]." The officer tried to i gnore the remarks, saying "[w]e'll see you in court." Instead of desisting in front of the crowd, defendant shouted to the officer, "Man, you pussy-assed mother fucker." At that point, he was arrest ed by the officer, who characterized his words as "disruptive." In affirming the conviction, the court found that, in the totality of these circumstances, "it was well within the discretion of the judge below, sitting as the trier of f act, to find that appellantuttered the above-quoted words with an intent to incite the police officer and perhaps others to violence." L.J.M., 541 So.2d at 1323. L.J.M. has no applicability in this case; there is no evidence in this record that would permit an officer to reasonably conclude that Gold's statements were intended to incite the police officers or anyone else to violence. Unlike in L.J.M., Gold did not directly approach the police and had not been arrest ed the night before by these officers; the police officers could not possibly have believe d that Gold would lash out at th em in violence or that he was attempting to incite them or any other bystanders to violence. To the extent that the panel construed
L.J.M. to permit criminal liability where an individual is simply critical of police conduct, even when the expression includes a profane word uttere d in a loud voice in the presence of others, that conclusion is in error, and, as shown above, in conflict, not only with federal constitutional principles of free speech, but with the clear law of Florida. Not surprisingly, the panel's decision in this cas e also conflicts with the decisions of every other Circuit to address a poli ce officer's entitlement to qualified immunity for arresting an individual for using abusive language. For example, in Duran v. City of Douglas, 904 F.2d 1372 (9th Cir.1990), the Ninth Circuit held that a police officer was not entitled to qualified immunity for stopping an individual after he insulted the officer. In words that apply equally here, Judge Kozinski explained that plaintiff's insult "represented anexpression of disapproval towards a police officer with whom he just had a run-in. As such, it fell s quarely within the protective umbrella of the First Amendment and any action to punish or deter such speech ... is categorically prohibited by the Constitution." Id. at 1378. Nor could the officers complain that these First Amendment principles were not clearly established. [G]overment officials in general, and police officers in particular, may not exercise their authority for personal motives, particularly in re sponse to real or perceived slights to their dignity.... Whether or not officer Aguilar was aware of the fine points of First Amendment law, to the extent he is found to have detain ed Duran as punishment for the latter's insults,we hold that he ought to have known that he was exercising his authority in violation of well-established constitutional rights. Id.; see also Knox v. Southwest Airlines, 124 F.3d 1103, 1109 (9th Cir.1997); Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir.1995). See also Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 166 (5th Cir.1997) (holding that police o fficer was not entitled to a dismissal based on qualified immunity for arresting motorist who to ld the officer to "move his damn truck"); Guffey v. Wyatt, 18 F.3d 869, 871 (10th Cir.1994) (d enying qualified immunity to an officer who arrested a referee at a hotly contested high school basketball game after the referee refused the officer's order to call more fouls); Enlow v. Tishomingo County, 962 F.2d 501, 509-10 (5th Cir.1992) (upholding denial of qualified immunity to a police officer based on Hill but remanding for resolution of factual disputes); Buffkins v. City of Omaha, 922 F.2d 465, 472 & n. 16 (8th Cir.1990) (denying qualified immunity where woman called po lice officer an "asshole"); Bailey v. Andrews, 811 F.2d 366, 371 (7th Cir.1987) (denying qualified immunity to officer who arrested plaintiff for stating "I want my damn dog" and "did you shoot my dog?"). For all the foregoing reasons, I believe that this case should be reheard en banc.