Artists aim to bring back lawsuit over removal of mural honoring police shooting victim

ATLANTA (CN) — An attorney for a group of artists and curators asked an 11th Circuit panel on Friday to overturn a federal judge’s ruling in favor of Miami Beach city officials accused of violating the First Amendment when they removed from an art exhibit a portrait of a Black man who was fatally shot by city police.

While attorneys in the case sparred over whether officials had discretion under the law to exclude art in the city-funded exhibit, at least one judge on the panel questioned the wisdom of the city’s move to take down the painting.

“I ask myself, what in the world was the city of Miami Beach thinking?” U.S. Circuit Judge Adalberto Jordan said. “This is not a piece of art that shows the decedent underground, riddled with bullet holes, bleeding with police officers standing over him with their smoking guns. It is as innocuous a piece of art as I think I’ve seen.”

“It’s just nuts,” the Obama-appointed judge said.

The 4-by-4-foot vinyl mural created by Miami artist Rodney Jackson depicts Raymond Herisse’s face in black and white tones on a plain black background. His head is surrounded by white rays of light and his name is emblazoned in yellow script below.

Herisse was shot by Miami Beach police in 2011 while driving during Miami’s Urban Beach weekend — the same event that later featured Jackson’s painting. A dozen city police officers fired 116 shots in the incident, fatally wounding the 22-year-old Haitian-American and injuring four bystanders.

Miami Beach City Manager Jimmy Morales demanded that the artwork be removed from a 2019 exhibit titled “I See You, Too,” after receiving a complaint from police officers. The exhibit was part of a city-funded project, “ReFrame: Miami Beach,” which was intended to promote conversations about inclusion, surveillance and propaganda with its theme “Trust as Currency.”

The Florida chapter of the American Civil Liberties Union sued the city on behalf of Jackson and art curators Octavia Yearwood, Jared McGriff and Naiomy Guerrero in 2020.

U.S. District Judge Marcia Cooke dismissed the case last year, finding the city had control over what message was supposed to be conveyed by the exhibit. The exhibit was considered “government speech,” which is not restricted under the First Amendment, Cooke wrote.

An attorney for the city urged the 11th Circuit panel on Friday to uphold the lower court’s ruling.

“Once the city commissions artwork, to pay for it with public funds, to put it on public land, then it’s obviously government speech and they can do whatever they want with it,” Miami Beach First Assistant City Attorney Robert Rosenwald said. “It’s the government’s. They own it.”

The city commissioned Guerrero and the other plaintiffs in 2019 to create the "ReFrame: Miami Beach" series of art installations to display during Memorial Day weekend.

Cooke ruled that the contract between the city and the plaintiffs gave Miami Beach officials the power to approve and review the art.

The contract also granted ownership rights of the artwork to the city, Cooke wrote in the opinion, and even prohibited publication of any artworks without the prior written consent of the city manager.

But an attorney for the artists argued the city still was not entitled to exert control over what was displayed in the exhibit.

“The city didn’t commission this piece of art,” attorney Alan Levine of Valiente Carollo & McElligott said.

“The city authorized the curators to mount an exhibit to tell stories from different perspectives. The memorial to Herisse told a story from a different perspective. It happened that the city didn’t like it. The city has no power to take it down.”

Rosenwald warned the panel that ruling for the plaintiffs could have disastrous consequences for public art in the future, arguing that it would “mean the end of the government’s ability to patronize the arts.”

“It would result in chaos that no government would ever subject itself to,” Rosenwald said.

The panel did not indicate when it would reach a decision in the case.

Jordan was joined on the panel by fellow Obama appointee U.S. Circuit Judge Robin Rosenbaum and Senior U.S. Circuit Judge Frank Hull, a Clinton appointee.

Follow @KaylaGoggin_CNS

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