11th Circuit sides with Miami Beach officials in dispute over removal of mural honoring police shooting victim

ATLANTA (CN) — Miami Beach city officials did not violate the First Amendment when they removed a painting honoring the victim of a police shooting from a city-funded art show, a panel of the 11th Circuit ruled on Friday.

A unanimous three-judge panel of the Atlanta-based appeals court upheld a decision handed down by a Florida federal judge last year dismissing the lawsuit filed by a group of artists and curators. U.S. District Judge Marcia Cooke held that the removal of the artwork constituted “government speech,” which is not restricted under the First Amendment.

Drawing a parallel with legal precedent finding that governments do not have to permit a rebellious army’s battle flag to be flown in government-funded pro-veteran parades, the panel ruled that the city was “not obliged to display any particular artwork in the art exhibitions that they fund, organize and promote.”

The painting that attracted the rancor of city officials was a 4-by-4-foot vinyl mural created by Miami artist Rodney Jackson depicting Raymond Herisse in stark black and white tones on a black background. Herisse’s head is encircled by white rays of light and his name is inscribed in yellow script below.

Herisse was shot by Miami Beach police in 2011 while driving during the city’s Urban Beach weekend — the same event where his portrait would later be featured. A dozen police officers fired 116 shots during the incident, killing the 22-year-old Haitian-American and injuring four bystanders.

The painting was accompanied by a narrative about the shooting and its aftermath.

Jackson’s mural was part of a 2019 exhibit titled “I See You, Too” which was organized as part of a city-funded project, “ReFrame: Miami Beach.” Scheduled for display during Memorial Day weekend, the series of art installations was intended to promote conversations about inclusion, surveillance and propaganda with its theme “Trust as Currency.”

Miami Beach City Manager Jimmy Morales demanded that the painting be removed after receiving a complaint from police officers. According to Friday’s ruling, Morales told the mayor and city commission that the painting was “potentially divisive and definitely insulting to our police as depicted and narrated.”

The Florida chapter of the American Civil Liberties Union sued the city in 2020 on behalf of Jackson and art curators Octavia Yearwood, Jared McGriff and Naiomy Guerrero. They claimed the city’s removal of the artwork violated their First Amendment free speech rights.

The panel ultimately sided with arguments proffered by the city's attorney at a hearing last month. Since the city commissioned the exhibition, provided the exhibition space and owned the artwork, it was entitled to control the message of the installation, the ruling says.

“The city contracted with the production companies to: (1) fund and take ownership over the art, (2) control how the art was to be disseminated, and (3) subject the art to the reasonable satisfaction of the city manager,” Senior U.S. Circuit Judge Frank Hull, a Clinton appointee, wrote on behalf of the panel. “Having bought the artwork, the city’s decision to display it, or not display it, was classic government speech.”

A representative for the ACLU of Florida did not immediately respond to a request for comment Friday evening.

In a separate concurrence, U.S. Circuit Judge Adalberto Jordan wrote that while the city’s decision did not violate the First Amendment, that “does not absolve Miami Beach from criticism from its decision.”

“The painting, at least to my eyes, is an unoffending tribute to a man who was shot and killed by Miami Beach police officers,” Jordan, an Obama appointee, wrote.

The three-judge panel was rounded out by U.S. Circuit Judge Robin Rosenbaum, also an Obama appointee.

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