Edwin Gomez v. Javier Ortiz

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-13364 Non-Argument Calendar ____________________

EDWIN GOMEZ, Plaintiff-Appellee, versus THE CITY OF MIAMI, a municipal corporation authorized to do business under the laws of the State of Florida,

Defendant,

JAVIER ORTIZ, an individual,

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Ortiz suggests he has absolute immunity anytime he is speaking to other Miami police officers, but he is incorrect. In Al- britton, for example, the court held that a county commissioner’s statements to a county administrator, attempting to get another employee fired due to a personal vendetta, were not privileged be- cause the county commissioner was not in charge of hiring and fir- ing and, thus, “there was no official purpose” for his statements. 531 So. 2d at 387. In other words, as the district court here ob- served, “it did not matter that the commissioner was speaking to a county administrator, only that the commissioner was speaking about personnel issues when he ‘was not in charge of hiring or fir- ing.’” So his comments were not “were not made while [the com- missioner] was exercising an official duty.” Id. Ortiz cites Stephens v. Geoghegan, 702 So. 2d 517 (Fla. Dist. Ct. App. 1997), for the proposition that his duties included “dissem- inat[ing] information to fellow officers.” But the facts of Stephens are clearly distinguishable. In Stephens, several “high-ranking po- lice officers”—the police chief, the assistant police chief, and a po- lice major—distributed a memorandum to all police personnel on a “matter of serious public concern: the investigation into a shoot- ing by a police officer that resulted in a citizen’s death.” See id. at 522–23. It’s no surprise that the court viewed the dissemination of such important information to fellow officers as “clearly” within the ambit of the defendants’ duties as leaders in the police depart- ment. Id. at 523. Ortiz identifies no similar official purpose for his comments about Gomez’s “domestic violence issues” in a private chat forum.

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The first incident before the City commissioners presents a closer question, but ultimately we see no error in the district court’s denial of absolute immunity. As the court observed, Ortiz was “not making the statements in a supervisory capacity,” as he was not in Gomez’s chain of command at the time. In fact, by his own account, Ortiz was not speaking in his capacity as a City police captain or ranking officer. Instead, his comments before the com- missioners were expressly made as a police union representative. As a result, the facts here are not comparable to Cassell, on which Ortiz relies, where the allegedly defamatory comments related to the legitimacy of a subordinate officer’s injury, and so “were part and parcel of [the officer’s] duties as [the plaintiff’s] supervisor” and to other ranking officers in the chain of command. 964 So. 2d at 196. Nor is this case like City of Miami v. Wardlow, 403 So. 2d 414 (Fla. 1981), where a police captain called another police department to inquire about a potential employee’s background, and an officer of the former employer allegedly defamed the employee in re- sponse. Id. at 416. The Florida Supreme Court held that the officer was entitled to absolute immunity because his duties included “communicating the results of his department’s investigations to inquiring officials from another municipal police department.” Id. Ortiz cites no evidence and makes no clear argument that he was similarly authorized by his position to disclose personnel matters about officers not under his chain of command. See Cameron, 246 So. 3d at 388 (noting that cases finding absolute immunity

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“generally involve a public official exercising supervisory responsi- bilities over another public employee or over personnel matters.”). Ortiz responds that he had a right to defend the police de- partment’s and his official conduct from public attack, comparing his situation to that in Hauser. In Hauser, a city prosecutor, after his position was abolished by the City Commission, issued a press re- lease challenging the decision as unreasonable and accusing Com- missioner Hauser of a vendetta against him. Hauser, 231 So. 2d at 7. In response, Hauser said to a newspaper that the prosecutor’s “respect for the truth is not famous,” and that while “he considers his services invaluable to the City, . . . the taxpayers might consider them to be awfully, awfully expensive.” Both sets of comments were printed in one article. The Florida Supreme Court reasoned that Hauser was entitled to absolute immunity because his com- ments could not be “construed as anything short of defending both his and the commission’s official action, the conduct of which the general public has a right to expect to be above reproach and gilded with utmost honesty and integrity[.]” Id. Here, in contrast, Ortiz’s comments about Gomez do not present as a rebuttal or defense of Gomez’s retaliation charge, or anything else Gomez spoke about.1 Nor did they pertain to the

1 It appears to be undisputed that Ortiz was referring to an incident for which

Gomez was disciplined, and for which he claimed retaliation by Ortiz. Those additional facts are not discernible from the hearing transcript in the record, though. In Hauser, in contrast, the original comments and the allegedly de- famatory response were printed in the same newspaper article. See Hauser v. Urchisin, 231 So. 2d 6, 7 (Fla. 1970).

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ostensible purpose of the hearing, which was about racial dispari- ties in the police department. Rather, Ortiz simply called Gomez a “coward” who “ran away from a fight” and was suspended by the City. Plus, as we’ve noted, Ortiz was expressly responding as the designated representative of a police union, not on behalf of the police department or in his capacity as captain. Thus, we agree with the district court that this situation is more like Albritton, where the allegedly defamatory comments “were not made while [Ortiz] was exercising an official duty.” 531 So. 2d at 387. Finally, Ortiz maintains that the district court failed to liber- ally construe the scope of his duties, but he fails to cite any case in which Florida courts have granted absolute immunity in compara- ble circumstances. For these reasons, we affirm the district court’s denial of ab- solute immunity to Ortiz on Gomez’s defamation claims. AFFIRMED.

Footnotes

[2] Opinion of the Court 23-13364 Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:21-cv-23668-KMW ____________________ Before ROSENBAUM, BRASHER, and ABUDU, Circuit Judges. PER CURIAM: Javier Ortiz appeals the district court’s denial of absolute im- munity at summary judgment on a defamation claim brought by Edwin Gomez. After careful review, we affirm the denial of im- munity. The underlying facts are largely undisputed. On January 17, 2020, City of Miami commissioners held a special meeting, re- quested by the Miami Community Police Benevolent Association, to discuss racial disparities within the police department. During the meeting, Gomez, a City of Miami police sergeant, made a state- ment in which he claimed that most of the problems in the depart- ment “surround one particular individual,” namely Ortiz, a City police captain, and he accused Ortiz of race discrimination, retalia- tion, and lying. Ortiz also spoke at the hearing. Ortiz began his remarks by stating that he was “not here as a captain or a lieutenant or a sergeant,” but rather “on behalf of the . . . Miami Fraternal Order of Police.” Regarding Gomez, Ortiz stated, “he’s a 23-13364 Opinion of the Court 3 documented coward. He ran away from a fight years ago.” He continued that Gomez was “substantiated for cowardice” and sus- pended as a result. The other allegedly defamatory comments were made in a group chat on the Telegram application. The chat group consisted of City police officers and was used to exchange information con- cerning the department. According to Gomez’s testimony, during a discussion of union matters in the group chat, Ortiz became upset when Gomez posted a complaint that he and others previously had filed against Ortiz. In response, Ortiz began to “personally attack [Gomez] about personal family matters,” claiming that his partner had “left [him] for a better man” and that he had “domestic vio- lence issues.” Ortiz claims absolute immunity under Florida state law for his statements that Gomez “ran away from a fight” and that Gomez had “domestic violence issues” because, in his view, he was acting within the scope of his duties as a police officer. The district court rejected that argument, reasoning that there was no “official pur- pose” for the subject statements, even if he was speaking to other police officers at a police meeting or in police forums. We review de novo the denial of absolute immunity at sum- mary judgment. Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999). Because absolute immunity is an immunity from suit, the denial of that immunity is immediately reviewable. See, e.g., Ellis v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185, 1189 (11th Cir. 1993)

[4] Opinion of the Court 23-13364 (“[D]enial of a claim of absolute immunity is an immediately ap- pealable interlocutory order.”). Under Florida law, “public officials who make statements within the scope of their duties are absolutely immune from suit for defamation.” Cameron v. Jastremski, 246 So. 3d 385, 387 (Fla. Dist. Ct. App. 2018) (cleaned up). Absolute immunity rests on the principle that officials “carrying out service to the public should be free to exercise their duties unembarrassed by the fear of damage suits in respects of acts done in the course of those duties.” Id. (quoting another source); see also Bates v. St. Lucie Cnty. Sheriff’s Of- fice, 31 So. 3d 210, 213 (Fla. Dist. Ct. App. 2010). Thus, “if the un- derlying action performed by the public official was within the scope of his duties, a malicious and false statement made during the exercise of this duty is absolutely privileged.” Albritton v. Gandy,

[531] So. 2d 381, 387 (Fla. Dist. Ct. App. 1988). Absolute immunity “protects the statements of all public officials, regardless of the branch of government or the level of the official.” Cassell v. India,

[964] So. 2d 190, 194 (Fla. Dist. Ct. App. 2007). We liberally construe the scope of a public official’s duties. Cameron, 246 So. 3d at 388. That means duties are “not confined to those things required of the officer,” but include “all matters which he is authorized to perform.” Id. (quotation marks omitted). But there are limits to the scope of an official’s duties. “Con- duct is within the scope of one’s employment if it is the type of conduct which the employee is hired to perform, the conduct oc- curs substantially within the time and space limits authorized or 23-13364 Opinion of the Court 5 required by the work to be performed, and the conduct is activated at least in part by a purpose to serve the employer.” Alfino v. Dep’t of Health and Rehab. Servs., 676 So. 2d 447, 449 (Fla. Dist. Ct. App. 1996); see also Craft v. John Sirounis & Sons, Inc., 575 So. 2d 795, 796 (Fla. Dist. Ct. App. 1991) (same). Thus, immunity may not apply if “there was no official purpose for [the] statements.” Albritton, 531 So. 2d at 387; Densmore v. City of Boca Raton, 368 So. 2d 945, 947–48 (Fla. Dist. Ct. App. 1979). Here, we agree with the district court that the allegedly de- famatory statements were not within the scope of Ortiz’s duties as a City police captain or officer. Starting with the second incident, Ortiz cites no evidence that the chat group was endorsed or pro- moted by the City, such that commenting in that forum could be considered within the scope of his authorized duties. The com- ments arose in a discussion about union matters, not official police business. And the allegedly defamatory comments cannot reason- ably be construed as “defending both his and his [department]’s of- ficial action.” Hauser v. Urchisin, 231 So. 2d 6, 7 (Fla. 1970). Rather, the comments were simply ad hominem attacks concerning mat- ters that had nothing to do with the complaint against Ortiz, Gomez’s credibility, or general police business. See Densmore, 368 So. 2d at 947 (“[I]f there was no official purpose, such as in explana- tion of the discharge of an employee, upon which to base the dis- closure of personal information about an employee, then the offi- cial might not be able to invoke the privilege.”).