Keating v. City of Miami
598 F. 3d 753 (11th Cir. 2010)
A group of protestors brought a §1983 action against the city and several police officials under a supervisory liability theory, alleging that police officers violated their First and Fourth Amendment rights during a free trade protest. The protestors alleged that they were protesting peacefully when the police forced them to disperse and herded them by using pepper spray, tear gas, batons, and bean bag guns. The city officials sought qualified immunity from the claims. The district court denied the official’s request for immunity with respect to the first amendment claims, finding that the protestors’ rights were violated when the officials failed to stop the use of weapons to disperse the crowd. The district court granted the officials immunity with respect to the fourth amendment claims, finding that although the protestors’ rights were violated by the herding, the violation was not clearly established. The officials appealed the district court’s denial of immunity with respect to the first amendment claim and the district court’s determination that the herding of the protestors was a violation of the fourth amendment (even though they were granted immunity with respect to this claim). The circuit court dismissed the appeal regarding the fourth amendment for lack of jurisdiction, holding that the officials were granted immunity and could not appeal a favorable judgment. The circuit court affirmed the district court’s denial of immunity with respect to the first amendment claim as to all of the officials, except the a Major. The circuit court held that all of the officials, except the Major, had the authority to direct the subordinate officers. By directing the subordinate officers to engage in the conduct which violated the protestors’ rights, the officials also violated the protestors’ rights.