(CN) – Three Miami police officers violated protestors’ First Amendment rights by ordering their subordinates to disperse a peaceful rally outside a free-trade meeting with pepper spray, bean-bag pellets, tear gas and baton beatings, the 11th Circuit ruled.
Five protesters said police began “herding” demonstrators by spraying them with pepper spray, discharging bean bags and tear gas, and beating them with batons outside the Free Trade Area of the Americas meeting in Miami in November 2003.
The protesters claimed that Miami Police Chief John Timoney, Deputy Chief Frank Fernandez, Captain Thomas Cannon and Major Adam Burden violated their First Amendment rights by directing their subordinates to break up the demonstrators or by failing to stop police from dispersing the crowd.
The protesters said the “herding” techniques used by Miami police violated their Fourth Amendment protection against unreasonable seizure.
The officers moved to dismiss, asserting qualified immunity.
The lower court allowed the First Amendment claims, but ruled that the officers were entitled to qualified immunity from the Fourth Amendment claims. Though the “herding” tactics constituted an unlawful seizure, the district court ruled, the violation was not clearly established at the time.
On appeal, a three-judge panel in Atlanta agreed that the First Amendment claims could proceed against all officers except Burden.
Judge Charles Wilson said the protesters sufficiently linked the orders given by Timoney, Fernandez and Cannon to the dispersal of a peaceful protest, a First Amendment violation under the theory of supervisory liability.
“[B]ecause Timoney, Fernandez and Cannon knew that the subordinate officers would engage in unlawful conduct in violation of the protesters’ First Amendment rights … they also violated the protesters’ First Amendment rights by failing to stop such action,” Wilson wrote.
But Burden is entitled to qualified immunity, the judge added, because his superiors had ordered the crowd dispersal. “Burden did not have any authority to contravene Timoney’s orders,” Wilson wrote.
The court said it lacked jurisdiction to review the adverse finding that the alleged “herding” actions violated the Fourth Amendment, because the officers were ultimately granted qualified immunity.
An adverse finding is not a reviewable final judgment, and “a party normally may not appeal from a favorable judgment,” Wilson concluded.