Expensive lawsuits linger around Miami City Hall like vengeful ghosts, still around long after the people involved have left city government — and still draining Miami's coffers.
Recently, one such lawsuit has once again reared its head: a First Amendment whistleblower case brought against city officials by embattled former police chief Art Acevedo back in January of 2022.
A panel of judges from the U.S. 11th District Court of Appeals opined last week that former Miami City Commissioners Joe Carollo and Alex Diaz de la Portilla do not have legal immunity against a freedom of speech complaint Acevedo lodged against them.
Acevedo was fired in 2021, following a very public — and colorful — dressing down by commissioners on the back of a memo he had sent to the FBI detailing allegations of corruption against the city officials. He sued the commissioners and then-City Manager Arthur Noriega, claiming he was fired as punishment for the memo, an instance of freedom of speech.
"The memo listed several instances in which the defendant Commissioners allegedly attempted to weaponize the police department in pursuit of their personal vendettas," the three-judge panel wrote in a formal opinion. "Based on the facts in the complaint, which control at this stage of litigation, we determine that the defendant Commissioners are not entitled to qualified immunity."
READ MORE: From high praise to the hot seat: How Miami's police chief saga became political theater
This opinion clears the way for the nearly 5-year-old litigation to continue, except for the legal claim against Noriega that the court agreed to dismiss.
"The reason is that Acevedo’s claim against Noriega differs in a meaningful way from his claim against the defendant Commissioners: Noriega did not terminate Acevedo, nor was he responsible for humiliating Acevedo at City Commission meetings. Instead, Noriega merely suspended Acevedo with pay pending a hearing," the court opinion states.
WLRN reached out to the City of Miami to ask if the city will continue paying for the former commissioners' legal fees with taxpayer dollars and assigning city attorneys to the case. The city did not respond.
The case
Acevedo's complaint arises from a memo he penned to the FBI in 2021 alleging retaliatory action from then-Commissioners Carollo, Diaz de la Portilla and Manolo Reyes for Acevedo's efforts to reform the police department.
Commissioner Reyes died last year at 80 years old, though he is still named as a defendant in Acevedo's lawsuit.
Acevedo claimed the commissioners inappropriately involved themselves in police investigations, ordered him to send police to specific businesses and publicly berated him for suspending certain police officers.
" The allegations in the memo are blood-curdling, right? It goes to this idea of using the police to settle personal and political disputes with individual residents," said David Winker, a South Florida attorney who handles constitutional complaints against local governments.
Acevedo also sent his memo to then-Miami Mayor Francis Suarez and Noriega, alerting them to the alleged conduct of the elected officials.
Noriega reportedly called Acevedo after receiving the memo and said: "You'd better be sure you have a kill shot because if you don’t, you better not take it," according to Acevedo's court filings.
After news broke of Acevedo contacting the FBI, the commissioners in question called a series of public meetings to question Acevedo that devolved into political theater — in one notable instance, commissioners played a video of Acevedo dressed as Elvis Presley during a charity event, and called particular attention to his tight pants.
Noriega then suspended Acevedo in October of 2021 after he spent just half a year as the head of the Miami Police Department, and commissioners pushed for his firing. Acevedo sued the three commissioners and Noriega alleging he was fired because of his memo.
The commissioners' and Noriega's lawyers moved to dismiss the lawsuit, but the lower court denied their request. This recent opinion from the 11th Circuit Court of Appeals affirms that denial, but grants Noriega's motion to dismiss.
Qualified immunity
The commissioners categorically denied Acevedo's allegations, and argued they were protected by both legislative and qualified immunity — two legal principles that protect government officials from legal liability.
Legislative immunity applies to cases involving a law or ordinance a legislator passed.
" If I pass a law and I say, 'You have to close outdoor patios by 1:00 AM,' you can't sue me for that. It's a legislative action I've taken as an elected official," Winker said.
Qualified immunity applies to actions taken by someone in their capacity as a government official, and is often used by police as a defense against allegations of misconduct.
The 11th District said the commissioners had no legislative immunity because there was no legislative action relevant to the complaint. The court acknowledged that Acevedo's firing was an official action taken by the commissioners within their duties, but ultimately held that based on the complaint, the police chief's allegations constitute a violation of his First Amendment rights as a private citizen.
Commissioner Carollo was separately sued and found liable for violating the First Amendment rights of local business owners by using city offices to harass them. He was ordered to pay $63 million, and his legal defense cost Miami taxpayers millions.
Acevedo's First Amendment case will now likely move forward in federal court.
