USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 1 of 31
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13352 ________________________
D.C. Docket No. 2:17-cv-00236-RWS
ANTHONY WAYNE HARDIGREE,
Plaintiff - Appellee,
versus
MARC LOFTON, Statham Police Officer, individually,
Defendant - Appellant,
CITY OF STATHAM, et al.,
Defendants.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(April 6, 2021)
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges. USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 2 of 31
WILSON, Circuit Judge:
Officer Marc Lofton appeals a district court order granting summary
judgment to Anthony Wayne Hardigree on one claim and denying Lofton summary
judgment on the same and other claims. Hardigree filed suit against Lofton under
42 U.S.C. § 1983 and Georgia state laws in 2017.1 He brought claims for unlawful
entry, false arrest, excessive force, malicious prosecution, false imprisonment,
assault, and battery. His claims arose from an August 4, 2016, interaction with
Lofton and other officers at his mobile home in Statham, Georgia. Both parties
moved for summary judgment.
The facts of this case are disputed, and because there are dueling summary
judgment motions, in some instances we must look at the facts in the light most
favorable to Hardigree and in other instances in the light most favorable to Lofton.
What is undisputed—and relevant to the challenge here—is that Lofton entered
Hardigree’s home without a warrant and without consent on August 4, 2016.
Lofton deployed his taser on Hardigree and Hardigree was arrested and charged
with disorderly conduct, obstruction, and simple battery. All charges were
eventually dismissed. Hardigree then filed this suit.
1 Hardigree brought claims against other defendants as well, but Lofton is the only defendant involved in this appeal. 2 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 3 of 31
The district court granted Hardigree’s motion for summary judgment on the
unlawful entry claim and denied it on all other claims. As to Lofton’s motion for
summary judgment, the court granted it for the federal malicious prosecution claim
and denied it for all other claims. Lofton appealed. He argues that he is entitled to
summary judgment because he did not violate Hardigree’s constitutional rights, or
alternatively, he is entitled to qualified immunity on the federal claims and official
immunity on the state law claims.
After discussing the disputed facts, we first consider whether the district
court erred by granting summary judgment to Hardigree on the unlawful entry
claim. Next, we consider whether the district court’s denial of summary judgment
to Lofton on that claim was proper. Finally, we review the denial of summary
judgment to Lofton on the false arrest, excessive force, and state law claims.
The facts of this case are heavily disputed and there are genuine issues of
material fact as to whether Lofton lawfully entered Hardigree’s home. Therefore,
summary judgment is improper. We reverse the grant of summary judgment to
Hardigree on the unlawful entry claim. The disputed facts also color the remaining
claims. Because genuine issues of material fact prevent finding for Lofton as a
matter of law, we affirm the district court’s denial of summary judgment, qualified
immunity, and official immunity on all other claims.
3 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 4 of 31
I. Background
The following facts are undisputed: On August 4, 2016, Anthony Rodgers
was the subject of a criminal drug investigation. 2 The police were surveilling a
known drug house and observed Rodgers leave the house in a red Ford Explorer.
An officer began to follow Rodgers but subsequently lost him. The officer radioed
for assistance, and another officer soon spotted the red Explorer parked near a
mobile home. The mobile home was Hardigree’s residence.
As the officer pulled up, she observed Rodgers leaving Hardigree’s home
carrying a black bag. Once Rodgers got back into the Explorer, the officer
approached the vehicle. While asking Rodgers for his license, the officer smelled
marijuana. She subsequently searched the car. In the car, the officer discovered 29
grams of methamphetamines, some marijuana, and other drug paraphernalia.3 The
officer arrested Rodgers and a female passenger.
Lofton had since arrived at the scene. He was informed that Rodgers had
been seen walking from Hardigree’s home. Roughly twenty minutes later, Lofton
2 Throughout the record, Rodgers’s last name is spelled both “Rogers” and “Rodgers.” We use “Rodgers” to mirror the district court’s order. 3 Where the drugs were found is a disputed fact. Lofton contends that the 29 grams of methamphetamines were found in the black bag that Rodgers was seen carrying from Hardigree’s home—or at least that Lofton believed that to be the case when he approached the home. Hardigree contends that the drugs were not found in the bag. The police report states that the methamphetamines were found in a clear plastic bag outside of the bag Rodgers carried from the house. Alternatively, Hardigree contends that Lofton did not even know Rodgers carried a bag from the house when he approached the door. 4 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 5 of 31
and other officers approached the mobile home to conduct a knock-and-talk.
Torrey Craig, Hardigree’s wife, answered the door. When asked if she knew
Rodgers, she said no but that her husband had spoken to him; she then went to get
Hardigree.
The conversation was audio-recorded. The officers asked about Rodgers,
and Hardigree told them he did not know Rodgers but that Rodgers came to the
house looking for work and asked for a bottle of water. The officers expressed
skepticism at the story—noting that Rodgers was a known drug dealer so they did
not think he would be looking for a job. The officers asked to search the house and
Hardigree declined, saying it was not his house but his sister’s house. An officer
asked Hardigree to call his sister. Hardigree sought to close the door and end the
conversation but Lofton told Hardigree he was not free to leave and was being
detained. Lofton told him to stay where he was (in the house). The other officer
told him to come outside.
At this point the stories diverge. Hardigree says that he announced he was
“going to go and get the phone” to call his sister and get permission for a search.
He turned and walked away from the door. Lofton then barged through the door
into Hardigree’s home.
Lofton says that Hardigree “abruptly and without warning turned and rushed
further into the home.” Lofton entered and reached out to grab Hardigree to stop
5 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 6 of 31
him because he feared for his safety and believed Hardigree may be running to
destroy evidence.
Per Hardigree, Lofton “immediately and without any warning deployed his
taser.” Hardigree “offered no resistance whatsoever to Lofton or the other
officers.” He fell face first on the ground screaming and begging Lofton to stop
tasering him, but Lofton did not stop. One of the prongs of the taser went into
Hardigree’s penis. Lofton deployed the taser again through the prongs even though
Hardigree was not resisting. Then, with Hardigree prone on the ground, Lofton
detached the prongs and tasered him in drive stun mode. Lofton pushed the taser
between Hardigree’s legs up into his inner, upper thigh—close to his genitals.
Lofton then arrested Hardigree.
According to Lofton, a brief struggle ensued once Lofton entered the home.
After being shoved by Hardigree, Lofton unholstered his taser and deployed it
while Hardigree was standing up and facing him. Lofton issued several commands
to Hardigree to get on the ground and show his hands. After being tasered,
Hardigree fell to the ground but his hands were underneath him. He failed to
comply with continued commands to produce his hands and another officer
struggled to place him in handcuffs. With Hardigree’s hands near his waistband,
Lofton used the taser in drive stun mode for compliance. Once Hardigree was
6 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 7 of 31
handcuffed, no additional force was used and Hardigree regained full bodily
function.
II. Standard of Review
We review a district court’s grant or denial of summary judgment, including
those based on qualified immunity, de novo. See Fils v. City of Aventura, 647 F.3d
1272, 1287 (11th Cir. 2011). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). All evidence and factual inferences are
viewed in the light most favorable to the non-moving party, and all reasonable
doubts about the facts are resolved in favor of the non-moving party. Skop v. City
of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007); see also Fils, 647 F.3d at 1288
(“At summary judgment, we cannot simply accept the officer’s subjective version
of events, but rather must reconstruct the event in the light most favorable to the
non-moving party and determine whether the officer’s [actions were unlawful]
under those circumstances.”).
III. Qualified Immunity Standard
Qualified immunity protects government officials who are sued under
§ 1983 for money damages in their individual capacities. Immunity is appropriate
so long as “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
7 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 8 of 31
Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine balances “the need to hold
public officials accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
To avail oneself of qualified immunity, one must establish “that he or she
acted within the scope of discretionary authority when the allegedly wrongful acts
occurred.” Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir.
1992). If so, courts then must determine whether the facts, viewed “in the light
most favorable to the party asserting the injury,” show that “the officer’s conduct
violated a constitutional right” that was clearly established at that time. Saucier v.
Katz, 533 U.S. 194, 201 (2001). To determine if a right is clearly established, we
ask whether the state of the law on the date of the alleged misconduct placed
defendants on “fair warning that their alleged treatment of [the plaintiff] was
unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
IV. Unlawful Entry Claim
Hardigree claims that Lofton unlawfully entered his home in violation of the
Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. The “very core” of the Fourth
Amendment is “the right of a man to retreat into his own home and there be free
8 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 9 of 31
from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S.
505, 511 (1961); see also Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it
comes to the Fourth Amendment, the home is first among equals.”).
The “chief evil” the Fourth Amendment protects against is a government
agent’s warrantless entry into a person’s home. See Payton v. New York, 445 U.S.
573, 585 (1980). When an officer enters a person’s home without a warrant and
without consent, any resulting search or seizure violates the Fourth Amendment
unless it was supported by probable cause and exigent circumstances. See id. at
587–90; United States v. Tovar-Rico, 61 F.3d 1529, 1534–35 (11th Cir. 1995);
United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc). When an
officer “conducts a warrantless search or seizure inside the home,” he bears the
“burden of proving that his conduct was justified.” McClish v. Nugent, 483 F.3d
1231, 1241 (11th Cir. 2007).
An officer has probable cause to search when there is a “fair probability that
contraband or evidence of a crime will be found in a particular place.” Tobin, 923
F.2d at 1510. Probable cause is determined based on the totality of the
circumstances. See Illinois v. Gates, 462 U.S. 213, 230 (1983). In general,
association with a known drug dealer, without more, is insufficient to establish
probable cause. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s mere
propinquity to others independently suspected of criminal activity does not,
9 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 10 of 31
without more, give rise to probable cause to search that person.”). And “mere
presence at a crime scene without more” is also not enough. United States v.
Virden, 488 F.3d 1317, 1322 (11th Cir. 2007).
Exigent circumstances exist when “the inevitable delay incident to obtaining
a warrant must give way to an urgent need for immediate action.” United States v.
Burgos, 720 F.2d 1520, 1526 (11th Cir. 1983). For example, courts have found
exigent circumstances where officers entered a home to prevent the destruction of
evidence, United States v. Mikell, 102 F.3d 470, 476 (11th Cir. 1996), to pursue a
fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43 (1976), and to break
up a violent fight, Brigham City v. Stuart, 547 U.S. 398, 406 (2006).
The exigent circumstances exception is “particularly compelling in narcotics
cases” because courts recognize that drugs can be easily and quickly destroyed.
United States v. Santa, 236 F.3d 662, 669 (11th Cir. 2000). However, the presence
of contraband alone does not give rise to exigent circumstances. Id.; see also
United States v. Lynch, 934 F.2d 1226, 1232 (11th Cir. 1991).
Exigent circumstances may arise “when there is danger that the evidence
will be destroyed or removed.” Tobin, 923 F.2d at 1510. To determine if there is
exigency, we must ask whether the facts would lead an objectively “reasonable,
experienced agent to believe that evidence might be destroyed before a warrant
could be secured.” Id.
10 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 11 of 31
Additionally, an officer may constitutionally secure a dwelling based on
probable cause “to prevent the destruction or removal of evidence while a search
warrant is being sought.” Segura v. United States, 468 U.S. 796, 810 (1984). In
some circumstances, securing a residence can include refusing to allow a person to
enter their residence alone or otherwise detaining them outside. See Illinois v.
McArthur, 531 U.S. 326, 331–32 (2001).
Even so, in cases involving warrantless searches or seizures, law
enforcement officers will be entitled to qualified immunity if they had even
“arguable probable cause.” Feliciano v. City of Miami Beach, 707 F.3d 1244,
1251 (11th Cir. 2013). Arguable probable cause exists if “reasonable officers in the
same circumstances and possessing the same knowledge as the Defendants could
have believed that probable cause existed.” Swint v. City of Wadley, 51 F.3d 988,
996 (11th Cir. 1995).
Both parties filed motions for summary judgment on the unlawful entry
claim. The district court granted Hardigree’s motion and denied Lofton’s motion.
Lofton argues that the district court erred. Not only did Lofton not violate
Hardigree’s constitutional rights, he contends, but even if he did, he is entitled to
summary judgment based on qualified immunity. Accordingly, we first consider
whether the district court erred by granting summary judgment on the unlawful
entry claim to Hardigree. In doing so, we accept the facts in the light most
11 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 12 of 31
favorable to Lofton. We then consider whether the district court erred by denying
summary judgment to Lofton, either on the merits or on qualified immunity. For
that inquiry, we view the facts in the light most favorable to Hardigree.
A. Hardigree’s Summary Judgment Motion
Lofton claims that the district court erred by granting summary judgment to
Hardigree. An officer can justify a warrantless entry by showing both that there
was probable cause to believe evidence of a crime was in the house, and that
exigent circumstances existed. See Tobin, 923 F.2d at 1510. Lofton contends that
he has shown both. This not only defeats Hardigree’s summary judgment motion,
according to Lofton, but also means that the district court should have granted
summary judgment to Lofton on this claim.
Lofton argues that he had probable cause to search the house and to secure it
while he sought a warrant. 4 He based that determination on the following facts: 1)
Rodgers was a known drug dealer under surveillance; 2) Rodgers left a suspected
drug house to go to Hardigree’s home; 3) Rodgers and Hardigree met briefly out of
public view which is common for illegal drug transactions; 4) Rodgers exited
Hardigree’s home with a bag that was discovered to have 29 grams of
4 Lofton also argues that he was conducting a lawful in-home Terry stop, which is permissible when there is both reasonable suspicion and exigent circumstances. See Moore v. Pederson, 806 F.3d 1036, 1039 (11th Cir. 2015); see also Terry v. Ohio, 392 U.S. 1 (1968). The district court relied on Moore to find that Lofton violated the Fourth Amendment even before he entered the home. But Hardigree’s complaint only alleges unlawful entry, so we need not address that issue here. Rather, our analysis centers on the lawfulness of the entry itself. 12 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 13 of 31
methamphetamines in it; 5) Lofton believed Hardigree had a connection with drugs
based on a previous arrest for a drug DUI outside of a known drug house; and 6)
the reason Hardigree gave for Rodgers’s visit (asking for work) was implausible.
Noting that these activities are commonly associated with drug dealing,
Lofton points to a case, though it is unpublished and nonbinding, to argue that it
was reasonable to believe that Rodgers supplied, traded, or sold drugs during his
interaction with Hardigree and that evidence of the transaction could be found
inside the home. See United States v. Murray, 659 F. App’x. 1023, 1026 (11th Cir.
2016) (per curiam) (where a search warrant was issued based on an affidavit that
said (1) “several visitors entered and exited the house after only a few minutes,
which the attesting officer believed was indicative of drug sales; and (2) that a
traffic stop of a car leaving the house resulted in the seizure” of drugs, a gun, and
more than “$500 in small bills”).
Lofton further argues that he could lawfully detain Hardigree while seeking
a warrant because he had probable cause to believe drugs were in the home and
Hardigree knew a search was imminent. Courts have noted that drugs can easily be
destroyed or disposed of when a suspect is given the opportunity and knows a
search is imminent. See McArthur, 531 U.S. at 332. Lofton contends that was the
case here. On that basis, the restraint he imposed on Hardigree (to remain at the
door) while attempting to secure a warrant was lawful.
13 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 14 of 31
Once Hardigree fled into the home, Lofton argues that exigent circumstances
permitted him to follow. For support Lofton cites Santana, where the Supreme
Court held that an officer did not violate the Fourth Amendment when he arrested
a suspect who had fled from her doorway into her home. 427 U.S. at 43. The Court
reasoned that when the suspect was standing in her doorway, she was in a “public”
place—making a warrantless arrest lawful. Id. at 42. The act of retreating into her
home initiated a “hot pursuit,” and justified a warrantless arrest in her house. Id. at
42–43. Lofton equates Santana to the situation here: his detention of Hardigree at
the doorway was lawful, so when Hardigree fled into the house—raising
destruction of evidence and officer safety concerns—his entry into the home, in hot
pursuit of Hardigree, was similarly lawful. Thus, because probable cause and
exigent circumstances existed, Lofton argues that he did not violate the Fourth
Amendment.
Hardigree disputes some of the facts that led Lofton to believe there was
probable cause, most notably whether the drugs were found in the bag that Rodgers
carried from Hardigree’s home and whether Hardigree “fled” into his home.
Hardigree also argues that the DUI Lofton is referring to was for lawfully
prescribed medications and was dismissed. He alleges that Lofton knew both of
those facts, so he could not reasonably conclude that Hardigree was involved with
14 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 15 of 31
narcotics. But when considering Hardigree’s motion for summary judgment on his
unlawful entry claim, we must view the facts in the light most favorable to Lofton.
Hardigree also argues that association with a known drug dealer is not
enough to establish probable cause, so Lofton did not have probable cause here.
See Ybarra, 444 U.S. at 91. But Lofton did not rely only on the fact that Rodgers
was near Hardigree or that Rodgers was a known drug dealer. Rather, Lofton
assessed the totality of the circumstances: the existence of the drugs, that they were
found in a bag just after Rodgers left from a short visit at Hardigree’s home, and
that Hardigree’s explanation of the reason for Rodgers’s visit was suspicious based
on what Lofton knew about both Rodgers and Hardigree. Lofton then interpreted
Hardigree’s fleeing, after hearing that the officers wanted to search the house, as an
indication that evidence could be destroyed. Taken together, a reasonable jury
could find that this constitutes probable cause—or at least arguable probable
cause—to believe a drug transaction had occurred and evidence was inside. Once
Hardigree fled into the house, a jury could find exigent circumstances existed to
enter. That is all Lofton must show at this stage to defeat Hardigree’s motion. See
Feliciano, 707 F.3d at 1251.
The district court erred in its analysis of this claim because it did not view
the facts in the light most favorable to Lofton. Though the order acknowledges that
the facts must be taken in that light, the district court seems to quibble with
15 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 16 of 31
Lofton’s version of the facts—and seemingly draws inferences in favor of
Hardigree. Granted, Lofton included in his summary judgment brief at least one
fact that cannot constitutionally be considered when determining whether
reasonable suspicion or probable cause exist: the fact that Hardigree did not
consent to a search. See United States v. Boyce, 351 F.3d 1102, 1110 (11th Cir.
2003). But that aside, Lofton provided enough facts, as discussed above, to
constitute at least arguable probable cause. For that reason, the district court erred
in granting summary judgment to Hardigree on the unlawful entry claim. We
reverse the district court to that extent.
B. Lofton’s Summary Judgment Motion
However, Lofton is not entitled to summary judgment on the unlawful entry
claim either—even under qualified immunity. Once an official asserting qualified
immunity establishes that he was acting within his discretionary authority—which
is not in question here—the burden shifts to the plaintiff to show that qualified
immunity is improper. Skop, 485 F.3d at 1136–37. This requires showing that the
defendant’s conduct violated a statutory or constitutional right and that the right
was “clearly established.” Saucier, 533 U.S. at 201. When considering Lofton’s
motion for summary judgment, we must view the facts in the light most favorable
to Hardigree, the non-movant. Skop, 485 F.3d at 1136.
16 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 17 of 31
Qualified immunity recognizes that “reasonable mistakes can be made as to
the legal constraints on particular police conduct.” Saucier, 533 U.S. at 205. “[I]t is
inevitable that law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present, and we have indicated that in
such cases those officials . . . should not be held personally liable.” Anderson v.
Creighton, 483 U.S. 635, 641 (1987). Therefore, even if we decide that an officer
did not have probable cause, we consider whether “reasonable officers in the same
circumstances and possessing the same knowledge as the Defendant[ ] could have
believed that probable cause existed.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th
Cir. 2002). If so, the officer had arguable probable cause, which is “all that is
required for qualified immunity.” Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th
Cir. 2001) (per curiam).
Though Lofton has asserted arguable probable cause—which would entitle
him to qualified immunity—he relies on material facts that are disputed by
Hardigree. Hardigree’s version of the facts tell a different story and prevent a
finding of even arguable probable cause.
As discussed above, the most notable disputes involve whether the drugs
were found in the black bag and whether Hardigree “fled” into the home. But those
are not the only disputed facts: Hardigree contends that Lofton did not even know
that Rodgers was carrying a bag when he walked out of Hardigree’s home and that
17 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 18 of 31
Lofton did know Hardigree’s DUI was for lawfully prescribed medications and
was dismissed. Hardigree also contends that there was nothing suspicious about
him or his house; per Lofton’s deposition, he initially thought Rodgers might have
burglarized Hardigree’s home. Finally, Hardigree argues that an officer told him to
call his sister for permission, and that he announced he was going to do so when he
walked away from the door. Thus, he was following police orders when he moved
from the door, not disobeying them.
Crediting Hardigree’s version of the facts, Lofton lacks even arguable
probable cause. If the drugs were not found in the bag, as Hardigree asserts, it
becomes much less clear what is suspicious about Hardigree’s home except its
proximity to drugs and a known drug dealer. That alone is not enough to constitute
arguable probable cause. Cf. Virden, 488 F.3d at 1321.
Additionally, if the drugs were not in the bag, the interaction between
Hardigree and Rodgers appears less like a common drug transaction and more like
a quick conversation or visit amongst friends—especially considering that the
police had been surveilling Rodgers and knew him to conduct drug deals
exclusively at his own house. See Ybarra, 444 U.S. at 91.
If Hardigree’s prior DUI was not related to narcotics and Lofton was aware
of that, there is nothing to tie Hardigree himself to drugs either. Under Hardigree’s
version of the facts, Lofton only knows that a drug dealer visited Hardigree’s home
18 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 19 of 31
and that Hardigree’s explanation of the reason for the visit seems unlikely. That
does not constitute probable cause and no reasonable officer would believe that it
does. See generally Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997)
(explaining that the court must determine that “reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could have
believed that probable cause existed” to grant qualified immunity); see also Gates,
462 U.S. at 238 (explaining that probable cause requires a “fair probability that
contraband or evidence of a crime will be found in a particular place”). Though
probable cause “is incapable of precise definition,” we know that “the belief of
guilt must be particularized with respect to the person to be searched or seized.”
Maryland v. Pringle, 540 U.S. 366, 371 (2003). Here, any belief of guilt was not
particularized to either Hardigree or his home.
Under Hardigree’s version of the facts, Lofton also lacked exigent
circumstances, making his entry into the home plainly unlawful. See Payton, 445
U.S. at 585. Hardigree contends that he did not flee or furtively move into his
home when he sought to invoke his Fourth Amendment right and close his door.
Rather, he announced to the officers what he was doing (calling his sister to obtain
permission for a search) and then walked inside at a normal pace. Hardigree
explains that his announcement about calling his sister can be heard on the audio
19 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 20 of 31
recording, and that he only did so because the officers asked him to call his sister
for permission.
Such acts do not even arguably arouse the same concerns about officer
safety or destruction of evidence that “furtively fleeing” into the house do. It does
not create the kind of “urgent need for immediate action” that existed in cases like
Santana or Mikell. See McClish, 483 F.3d at 1240–41. And because Hardigree says
he was going inside to comply with the orders of an officer, the act is not
suspicious.
Assuming Hardigree’s version of the facts to be true, a reasonable officer
would not believe that Hardigree was going to destroy alleged evidence—and
would have no reason to even believe there was evidence inside to destroy. Such a
finding is even more unreasonable considering other officers had already let
Hardigree’s wife retreat into the house alone at the beginning of the knock-and-
talk.5
5 Lofton’s cite to Minor v. State, 680 S.E.2d 459 (Ga. Ct. App. 2009), does not convince us that his conduct was arguably lawful. The cases are wholly distinguishable when we take the disputed facts in the light most favorable to Hardigree—which we must at this stage. First, in Minor, the officers came to the house to investigate a report that Minor’s children were being exposed to illegal drug use at home. Id. at 461. Here, the officers did not come to investigate Hardigree, nor did they know anything about Hardigree when they arrived because they were there pursuing Rodgers. Next, the officers smelled marijuana on Minor. Id. In Hardigree’s case, the officers said in their deposition that they did not smell any drugs on Hardigree or in his house. Finally, Minor “bolted into his home and shut the door,” prompting pursuit by the officers. Id. at 462. Here, Hardigree contends that he walked into the house pursuant to officer orders to call his sister. 20 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 21 of 31
Protecting against warrantless government entry into a person’s home is the
core of the Fourth Amendment. See Payton, 445 U.S. at 585; Jardines, 569 U.S. at
6. It was clearly established long before Lofton arrived at Hardigree’s door that
without a warrant or consent, or probable cause and exigent circumstances, he
could not enter the home. See Payton, 445 U.S. at 587–90; Tovar-Rico, 61 F.3d at
1534–35. Based on Hardigree’s version of the facts, Lofton lacked all of these.
Accordingly, there are genuine disputes of material fact as to whether Lofton
had even arguable probable cause, or exigent circumstances, justifying his entry
into Hardigree’s home. We are constrained to conclude that summary judgment—
even based on qualified immunity—is not appropriate on this claim. See Fed. R.
Civ. P. 56(a); see also Carlin Commc’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d
1352, 1356 (11th Cir. 1986) (“[T]he court may not weigh conflicting evidence to
resolve disputed factual issues; if a genuine dispute is found, summary judgment
must be denied.”). These factual disputes can only be sorted out by a jury.
V. False Arrest Claims
Lofton next argues that the district court also erred by denying him
summary judgment on the false arrest claims. For this claim, and all remaining
claims, we view the facts in the light most favorable to Hardigree. See Skop, 485
F.3d at 1136.
21 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 22 of 31
“There is no question that an arrest without probable cause to believe a
crime has been committed violates the Fourth Amendment.” Madiwale, 117 F.3d
at 1324. However, qualified immunity protects an officer from a false arrest claim
if arguable probable cause existed for the arrest. See Storck v. City of Coral
Springs, 354 F.3d 1307, 1315 (11th Cir. 2003). Arguable probable cause for any
offense would bar Hardigree’s false arrest claim on all charges. See Grider v. City
of Auburn, 618 F.3d 1240, 1257 (11th Cir. 2010); see also Marx v. Gumbinner,
905 F.2d 1503, 1505–06 (11th Cir. 1990).
In determining whether probable cause exists for an arrest, we consider
whether the arresting officer’s actions were “objectively reasonable based on the
totality of the circumstances.” Kingsland v. City of Miami, 382 F.3d 1220, 1226
(11th Cir. 2004), abrogated on other grounds by Williams v. Aguirre, 965 F.3d
1147 (11th Cir. 2020). “This standard is met when the facts and circumstances
within the officer’s knowledge, of which he or she has reasonably trustworthy
information, would cause a prudent person to believe, under the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.” Id. (internal quotation mark omitted).
Whether an officer possesses probable cause or arguable probable cause to
arrest depends on the elements of the alleged crime and the operative facts. See
Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Hardigree was
22 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 23 of 31
arrested and charged with disorderly conduct, obstruction, and simple battery. We
address each offense in turn. But because no arguable probable cause existed for
any of these offenses, we affirm the district court’s denial of summary judgment
and qualified immunity on these claims.
A. Disorderly Conduct
Disorderly conduct occurs when a person “[a]cts in a violent or tumultuous
manner toward another person whereby such person is placed in reasonable fear of
the safety of such person’s life, limb, or health.” O.C.G.A. § 16-11-39(a)(1).
Lofton argues that Hardigree’s “spontaneous flight caused him to be concerned for
his safety,” and that Hardigree “did not convey his intentions to the officers.”
But Lofton errs by assuming that his facts are undisputed. Hardigree denies
any “spontaneous flight” from the door. He contends that he announced where he
was going before moving away from the door, which can be heard on the audio
recording, and that he did so because an officer told him to. Accordingly, a genuine
issue of material fact exists as to whether Hardigree fled into the house. As a result,
we cannot say at this stage that there was even arguable probable cause for arrest
for disorderly conduct.
B. Obstruction
In Georgia, “a person who knowingly and willfully obstructs or hinders any
law enforcement officer . . . in the lawful discharge of his or her official duties
23 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 24 of 31
shall be guilty of” the misdemeanor of obstruction. O.C.G.A. § 16-10-24(a).
“[F]light, or attempted flight, after a command to halt constitutes obstruction of an
officer.” Tankersley v. State, 273 S.E.2d 862, 866 (Ga. Ct. App. 1980).
Lofton argues that Hardigree obstructed orders to stay put or come outside
when he fled into the house. Under the language of this statute, if Hardigree had
refused to obey a lawful order to remain where he was and instead fled into the
home, Lofton may well have been able to arrest him. But Hardigree presented
evidence sufficient to raise a genuine issue of material fact concerning the
lawfulness of the order. The lawfulness of Lofton’s command rests on questions of
fact about whether he had probable cause or arguable probable cause to detain
Hardigree at the door. 6
Hardigree also argues that he had conflicting orders from the officers
because they had ordered him to get his phone and call his sister. When he moved
from the door, he contends that he was not fleeing and had announced what he was
doing. On those facts, Lofton did not have arguable probable cause to arrest him
for obstruction. Therefore, summary judgment is inappropriate here. Determining
what transpired, “on this highly disputed factual record, [is] exactly the sort of
factual, credibility-sensitive task best left to the jury.” See Skop, 485 F.3d at 1141.
6 The Eleventh Circuit allows for Terry stops in the home when there is reasonable suspicion and exigent circumstances. See Moore, 806 F.3d at 1039. But the factual disputes also affect whether either of those existed at this point in the interaction (before Hardigree retreated into the home). 24 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 25 of 31
C. Battery
A simple battery is committed when someone “[i]ntentionally makes
physical contact of an insulting or provoking nature with the person of another.”
O.C.G.A. § 16-5-23(a)(1). Lofton claims that Hardigree shoved him after Lofton
entered the home. But Hardigree disputes this fact, saying he never shoved or even
touched Lofton. Under Hardigree’s version of the facts, there is no arguable
probable cause to support an arrest for battery. We cannot weigh their conflicting
testimony at this stage. Carlin Commc’n, Inc., 802 F.2d at 1356. Summary
judgment must be denied.
VI. Excessive Force Claim
Lofton contends that the district court erred by denying him summary
judgment on Hardigree’s excessive force claim. 7 He argues that his use of force
was justified because Hardigree attempted to flee, did not comply with his
commands, and Lofton was not familiar with his circumstances. We disagree with
7 Lofton also contends that an excessive force claim only exists if Lofton had arguable probable cause to arrest. See Bashir v. Rockdale County, 445 F.3d 1323, 1332 (11th Cir. 2006) (“[W]here an excessive force claim is predicated solely on allegations the arresting officer lacked the power to make an arrest, the excessive force claim is entirely derivative of, and is subsumed within, the unlawful arrest claim.”). But here, Hardigree argues not only that any force was excessive because of the lack of probable cause, but also that even if there was probable cause, the force was constitutionally unreasonable. Because the question of arguable probable cause has not been answered and Hardigree also asserts an independent claim, we cannot say this claim is subsumed by the unlawful arrest claims. 25 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 26 of 31
Lofton and affirm the district court’s denial of summary judgment to Lofton on the
excessive force claim.
The Fourth Amendment’s freedom from unreasonable seizures includes the
“right to be free from the use of excessive force in the course of an arrest.”
Ferraro, 284 F.3d at 1197. To determine whether the force used was reasonable, a
court must carefully balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental
interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal
quotation marks omitted). The inquiry is objective. See id. at 397.
A number of factors can contribute to this determination: the “severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396. Additionally, courts can consider if the person subject
to force is violent or dangerous, the possibility that they may be armed, “and the
number of persons with whom the police officers must contend at one time.”
Jackson v. Sauls, 206 F.3d 1156, 1170 n.18 (11th Cir. 2000). A court must view
the use of force “from the perspective of a reasonable officer on the scene.”
Graham, 490 U.S. at 396. Finally, courts must view the interaction with the
understanding that “officers are often forced to make split-second judgments—in
26 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 27 of 31
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. at 397.
Again, the facts here are disputed. Hardigree contends that he did not resist
being put in handcuffs, shove or touch Lofton, or square up to fight. Rather, he can
be heard on the audio recording pleading not to be tasered again.
We must consider what an objectively reasonable officer in Lofton’s
situation would have believed, taking as true Hardigree’s testimony. See Brown v.
City of Huntsville, 608 F.3d 724, 739 (11th Cir. 2010). Repeated uses of the taser
through the prongs and again in drive stun mode on or around Hardigree’s genitals
would be excessive. Certainly, once Hardigree was on the ground, immobilized,
being arrested for a minor incident, and posed no threat, Lofton’s decision to again
deploy the taser would be excessive force that violated Hardigree’s constitutional
rights.
It is clearly established that “[u]nprovoked force against a non-hostile and
non-violent suspect who has not disobeyed instructions” violates a person’s Fourth
Amendment right. See Fils, 647 F.3d at 1289, 1292 (holding that officers should
have known that tasering a suspect who “committed at most a minor offense; [ ]
did not resist arrest; [and] did not threaten anyone” violated the Fourth
Amendment). The district court was correct to deny summary judgment on this
claim.
27 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 28 of 31
VII. State Law Claims
Hardigree also brought four state law claims against Lofton: false
imprisonment, malicious prosecution, assault, and battery. Lofton argues that the
district court erred in denying him summary judgment on these claims based on the
merits, or alternatively based on official immunity.
Lofton’s only argument for summary judgment on the merits of these claims
is that he had probable cause or arguable probable cause. The essential elements of
false imprisonment in Georgia “are [an] arrest or [a] detention and the
unlawfulness thereof.” Kline v. KDB, Inc., 673 S.E.2d 516, 518 (Ga. Ct. App.
2009). In the context of a warrantless arrest, probable cause and an exception to the
warrant requirement (like the offense being committed in the officer’s presence)
are required for the arrest to be lawful. See Collins v. Sadlo, 306 S.E.2d 390, 391–
92 (Ga. Ct. App. 1983); O.C.G.A. § 17-4-20(a)(2)(A). Because the alleged events
happened in front of Lofton, a showing of probable cause would defeat Hardigree’s
false imprisonment claim. It would also defeat the malicious prosecution claim.
See O.C.G.A. § 51-7-40 (defining malicious prosecution in part as a criminal
prosecution carried on “without any probable cause”).
Similarly, Lofton argues that if he had probable cause to make a lawful
arrest, he would be entitled to summary judgment on the assault and battery claims
because an officer is entitled to use force reasonably necessary to effectuate an
28 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 29 of 31
arrest. See Mayfield v. State, 623 S.E.2d 725, 727 (Ga. Ct. App. 2005). Because
probable cause and arguable probable cause depend on disputes of material fact, as
explained throughout this opinion, summary judgment is improper on the merits of
these claims.
However, Lofton also contends that he is entitled to official immunity at this
juncture. In Georgia, a government official “may be liable for injuries and damages
if they act with actual malice or with actual intent to cause injury in the
performance of their official functions.” Ga. Const. art. 1, § 2, ¶ IX(d). There is no
dispute here that Lofton was performing discretionary duties as a state official
during his encounter with Hardigree. Thus, the only question is whether Lofton
acted with actual malice or intent to cause injury. Actual malice, in this context,
“requires a deliberate intention to do wrong.” Adams v. Hazelwood, 520 S.E.2d
896, 898 (Ga. 1999). Proof of ill will alone is not enough. Id.
Hardigree offers several facts to support his allegations of actual malice.
Most notably, in his deposition, Lofton testified that he did not have probable
cause to arrest Hardigree when he entered the house, but that he entered anyway.
Additionally, Lofton tasered Hardigree in the penis with the prongs from a short
distance, and then again tasered him in his upper, inner thigh in drive stun mode
after Hardigree had stopped moving. Hardigree also asserts that Lofton lied about
Hardigree pushing him and resisting arrest, and then arrested him without any
29 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 30 of 31
conceivable basis for doing so. Hardigree cites to a case where official immunity
was denied when a jury could find that an officer acted with “knowledge that [a
suspect] had not committed the crimes for which they accused her.” See Bateast v.
Dekalb County, 572 S.E.2d 756, 758 (Ga. Ct. App. 2002).
At this stage, Hardigree has asserted enough facts to allow a jury to find that
Lofton intended to do wrong when he continually tasered Hardigree in the groin
and arrested him on charges that, according to Hardigree, had no basis. Because a
jury could find malice, the district court was correct to deny official immunity to
Lofton.
VIII. Conclusion
In conclusion, the district court erred by granting summary judgment to
Hardigree on unlawful entry. But taking the facts in the light most favorable to
Hardigree, the district court correctly denied summary judgment, qualified
immunity, and state law immunity to Lofton on that claim and the remaining
claims. Lofton and Hardigree offer very different versions of the interaction. These
questions belong in front of a jury.
REVERSED IN PART; AFFIRMED IN PART.
30 USCA11 Case: 19-13352 Date Filed: 04/06/2021 Page: 31 of 31
ANDERSON, Circuit Judge, concurring:
I concur in the result.