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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10312 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cv-03303-RWS
CAROLINE CROLAND,
Plaintiff - Appellee,
versus
CITY OF ATLANTA,
Defendant,
STEPHENSON CAMILLE,
Defendant - Appellant.
________________________
Appeals from the United States District Court for the Northern District of Georgia ________________________
(July 19, 2019)
Before TJOFLAT, BRANCH, and EDMONDSON, Circuit Judges. Case: 19-10312 Date Filed: 07/19/2019 Page: 2 of 20
PER CURIAM:
In this interlocutory appeal, City of Atlanta police officer Stephenson
Camille appeals the district court’s denial of his motion for summary judgment in
Plaintiff Caroline Croland’s civil action under 42 U.S.C. § 1983 and Georgia law.
Officer Camille contends he is entitled to qualified immunity and to Georgia
official immunity. Reversible error has been shown; we affirm in part, vacate in
part, and remand.
I. BACKGROUND
This case arises from Plaintiff’s arrest in downtown Atlanta on the afternoon
of 1 June 2014. Plaintiff is an active member of two volunteer groups: “Food Not
Bombs,” which distributes meals to the homeless in Woodruff Park most Sunday
afternoons, and “Cop Watch of East Atlanta” (“Cop Watch”), a “watch-dog group
focused on increasing police accountability and preventing police brutality by
filming police officers in public.”
On 1 June, Plaintiff and members of her volunteer groups were distributing
food in Woodruff Park. Officer Camille was also present in the park as part of his
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routine foot patrol. Plaintiff says Officer Camille “hovered” around the Food Not
Bombs table for an hour and a half. During this time, Cop Watch volunteers
followed Officer Camille and filmed him using their cell phones. One of these
video recordings was submitted into evidence and shows the pertinent events
leading up to and during Plaintiff’s arrest.
The video shows Officer Camille being approached by one of Plaintiff’s
fellow volunteers. The volunteer (not Plaintiff) asked Officer Camille to leave the
park and told Officer Camille that he was not wanted there. Officer Camille
refused to leave and responded that he had a right to remain in a public park. The
volunteer then continued -- for several minutes -- to make generally mocking and
insulting comments to Officer Camille and to ask Officer Camille repeatedly to
leave the area. For the most part, Officer Camille ignored the comments, but also
responded by providing his name and badge number.
Officer Camille then moved away from the volunteer and from the camera.
Over the next several minutes, Officer Camille walked in and around the area
where food was being distributed. As he did so, he conversed casually and
laughed with other people present in the park. In the background, people can be
seen and heard laughing, talking, singing, and playing drums.
Officer Camille then resumed his position close to the Food Not Bombs
table -- and only a few feet from the camera -- and stood observing the area for a
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couple of minutes. Plaintiff can then be heard talking off-camera to a fellow
volunteer, Vincent Castillenti. Plaintiff said (in a normal tone of voice) that she
was “so angry, oh my god, so angry,” referring to Officer Camille’s presence.
Castillenti urged Plaintiff to “start a chant,” to which Plaintiff replied, “I don’t
want to start a chant.” Castillenti then told Plaintiff to “scream it out and people
will go along with you. They’ll like fucking make him understand that he’s a piece
of shit.” Plaintiff said, “No, nothing could make him understand that.”
A few seconds later, Plaintiff said in a louder-than-normal voice, “It’s like
we can’t like share a . . . meal with people every Sunday without state
harassment!” Officer Camille turned his back and started to walk away from
Plaintiff. As he did, Plaintiff (in the presence of others in her group) yelled -- with
increasing volume -- “Why?! Why?! WHY?! WHY?! WHY?!” And then yelled
the demand, “ANSWER ME!!” As Plaintiff yelled her questions and her demand
at Officer Camille, one or two people looked up, but no volunteers or members of
the public reacted visibly in any other way to Plaintiff’s outburst. Nor did Plaintiff
appear to move physically toward Officer Camille, such that she would have been
on camera.
In response to Plaintiff’s yelling, Officer Camille turned to face Plaintiff,
walked slowly about 11 steps toward Plaintiff, and told Plaintiff that she was under
arrest for “disorderly conduct in the park.” Plaintiff was charged with violating
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Atlanta City Code § 106-81(3), which makes it unlawful to cause, provoke, or
engage in a fight or riotous conduct.
Plaintiff filed suit against Officer Camille in his individual capacity, 1
alleging that she was arrested without probable cause and in retaliation for her
protected speech -- in violation of her rights under the First and Fourth
Amendments. Plaintiff also asserted against Officer Camille state law claims for
assault and battery, false arrest, false imprisonment, and malicious prosecution.
The district court denied Officer Camille’s motion for summary judgment: a
motion grounded on federal qualified immunity and state official immunity.
II. DISCUSSION
A. Constitutional Claims & Qualified Immunity
We review de novo a district court’s denial of a motion for summary
judgment based on qualified immunity, “drawing all inferences and viewing all of
the evidence in a light most favorable to the nonmoving party.” Gilmore v.
1 Plaintiff also named as a defendant the City of Atlanta. The district court later granted the parties’ joint motion to dismiss the City. Plaintiff’s claims against the City are thus not before us in this appeal. 5 Case: 19-10312 Date Filed: 07/19/2019 Page: 6 of 20
Hodges, 738 F.3d 266, 272 (11th Cir. 2013). When a video recording exists of the
pertinent events -- as in this case -- we “view[] the facts in the light depicted by the
videotape.” See Scott v. Harris, 550 U.S. 372, 380-81 (2007). Because we
construe the evidence in favor of the nonmoving party, “material issues of disputed
fact are not a factor in the court’s analysis of qualified immunity and cannot
foreclose the grant or denial of summary judgment based on qualified immunity.”
Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008).
“Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacities unless their conduct violates
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Gates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018). To
avoid summary judgment on qualified immunity, Plaintiff must show both that
Officer Camille violated a federal right and that the right was already clearly
established when Officer Camille acted. See id.
A federal right is “clearly established” when “the contours of [the] right are
sufficiently clear that every reasonable official would have understood that what he
is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(quotations and alterations omitted). “We do not require a case directly on point,
but existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. (emphasis added). “[Q]ualified immunity will be denied only
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if the preexisting law by case law or otherwise makes it obvious that the
defendant’s acts violated the plaintiff’s rights in the specific set of circumstances at
issue.” Gates, 884 F.3d at 1297 (quotation and alteration omitted).
Broadly speaking, a warrantless arrest made without probable cause violates
the Constitution and is actionable under section 1983. See id. An officer has
probable cause to arrest when, “at the moment the arrest was made . . . the facts
and circumstances within [the officer’s] knowledge and of which [the officer] had
reasonably trustworthy information were sufficient to warrant a prudent man in
believing that the [accused] had committed or was committing an offense.” Beck
v. Ohio, 379 U.S. 89, 91 (1964).
“Even without actual probable cause, however, a police officer is entitled to
qualified immunity if he had only ‘arguable’ probable cause to arrest the plaintiff.”
Gates, 884 F.3d at 1298. “Arguable probable cause exists where reasonable
officers in the same circumstances and possessing the same knowledge as the
defendant could have believed that probable cause existed to arrest.’” Id.
(alteration omitted). The reasonable-officer standard is an objective one; we do not
consider the officer’s subjective intent. Brown v. City of Huntsville, 608 F.3d 724,
735 (11th Cir. 2010). “Whether an officer possesses probable cause or arguable
probable cause depends on the elements of the alleged crime and the operative fact
pattern.” Id.
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We stress that “[s]howing arguable probable cause does not . . . require
proving every element of a crime.” Wilkerson v. Seymour, 736 F.3d 974, 978
(11th Cir. 2013) (citing Brown, 608 F.3d at 735-36). But “a constitutional arrest
must be based on a reasonable belief that a crime has occurred, rather than simply
unwanted conduct.” Id. Thus, qualified immunity will not protect an officer who
makes an arrest under circumstances “where it is clear that the conduct in question
does not rise to the level of a crime, under the facts known at the time.” Id. at 978-
79 (affirming the denial of qualified immunity when no evidence existed from
which a reasonable officer could have believed that the arrestee’s conduct violated
a local disorderly-conduct ordinance).
Officer Camille would be entitled to qualified immunity if arguable probable
cause existed to arrest Plaintiff for any offense. See Brown, 608 F.3d at 735. We
thus consider whether arguable probable cause existed to arrest Plaintiff under any
offense under local ordinance or Georgia statute.
The disorderly-conduct ordinance for the City of Atlanta makes it unlawful,
among other things, for a person to “[a]ct in a violent or tumultuous manner toward
another whereby any person is placed in fear of the safety of such person’s life,
limb or health;” or to “[c]ause, provoke or engage in any fight, brawl or riotous
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conduct so as to endanger the life, limb, health or property of another.”2 CITY OF
ATLANTA, GA., CODE § 106-81(1), (3) (2014) (emphasis added). In a similar way,
Georgia’s disorderly-conduct statute makes it unlawful for a person to act “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(1) (emphasis added).
Under Georgia statute, a person commits the misdemeanor offense of
“inciting to riot” if he “with intent to riot does an act or engages in conduct which
urges, counsels, or advises others to riot, at a time and place and under
circumstances which produce a clear and present danger of a riot.” O.C.G.A. § 16-
11-31; see Powell v. State, 462 S.E.2d 447, 448 (Ga. Ct. App. 1995). A “riot”
occurs when “two or more persons” commit “an unlawful act of violence or any
other act in a violent and tumultuous manner . . . .” O.C.G.A. § 16-11-30(a).
On this record, no objective officer under the same circumstances and
possessing Officer Camille’s knowledge could have believed reasonably that
probable cause existed to arrest Plaintiff. Plaintiff’s conduct consisted of yelling at
Officer Camille in front of a group of people. Plaintiff made no physical gestures
2 A person also commits the offense of disorderly conduct if he “[d]irect[s] fighting words toward another, that is, words which by their very nature tend to incite an immediate breach of the peace.” CITY OF ATLANTA, GA., CODE § 106-81(6) (2014). That Plaintiff’s words constituted no “fighting words” within the meaning of the local ordinance is clear. 9 Case: 19-10312 Date Filed: 07/19/2019 Page: 10 of 20
with her hands and took no steps toward Officer Camille, who was then about 11
steps away. 3 Although a couple of other volunteers had objected verbally to
Officer Camille’s presence in the park, those volunteers had also made no physical
threats or physically aggressive movements. The video also shows that the overall
demeanor of the crowd was calm.
Even to the extent that an objective officer could have believed that Plaintiff
was attempting to get others to join her in a “chant,” an objective officer -- under
the circumstances -- could not have believed reasonably that Plaintiff was engaged
in (or about to engage in) conduct that was likely to “endanger the life, limb, health
or property of another” or to place someone in “reasonable fear of the safety of
such person’s life, limb, or health”: a critical element of a disorderly-conduct
offense. See CITY OF ATLANTA, GA., CODE § 106-81(1), (3); O.C.G.A. § 16-11-
39(1). Nor could an objective officer under the circumstances have believed
reasonably that there existed “a clear and present danger of a riot.” See O.C.G.A.
§§ 16-11-30(a), 16-11-31.
At the time of Plaintiff’s arrest in 2014, the law was clear that yelling about
police harassment in front of a crowd -- by itself -- was not enough to give rise to
3 Officer Camille says that, when Plaintiff yelled, she balled up her fist. Plaintiff denies flatly that her fists were balled up or that she made any other physical gestures directed at Officer Camille. Because the video recording does not “blatantly contradict[]” Plaintiff’s assertion, we accept as true Plaintiff’s version of the facts for purposes of summary judgment. See Scott, 550 U.S. at 380-81. 10 Case: 19-10312 Date Filed: 07/19/2019 Page: 11 of 20
probable or arguable probable cause to arrest. The Supreme Court made clear that
a person may not be charged with a criminal offense for the use of spoken words
alone, unless those words rise to the level of “fighting words”: words “which by
their very utterance inflict injury or tend to incite an immediate breach of the
peace.” See Gooding v. Wilson, 405 U.S. 518, 521-22 (1972) (striking down as
facially invalid a Georgia breach-of-peace statute not limited to fighting words,
explaining that “[t]he constitutional guarantees of freedom of speech forbid the
States to punish the use of words or language not within ‘narrowly limited classes
of speech.’”). No “fighting words” from Plaintiff were involved in this case.
In Woodward v. Gray, a Georgia appellate court concluded that no probable
cause existed to arrest a woman for disorderly conduct under Georgia statute or
local ordinance when the woman yelled loudly about police harassment for several
minutes (in front of a crowd and using expletives) and refused the officer’s
command to the leave the area.4 527 S.E.2d 595, 597, 599-600 (Ga. Ct. App.
2000), overruled in part on other grounds by Stryker v. State, 677 S.E.2d 680 (Ga.
Ct. App. 2009). The state court said that “[b]eing obnoxious, loud, arguing with
the police, and refusing to move more than eight feet from the police on command
4 The city ordinance involved in Woodward provided that a person could be charged with disorderly conduct if he, among other things, “(1) Performs an unlawful act of violence or performs any other act in such a violent and tumultuous manner that the public peace and tranquility are disturbed; [or] (2) Verbally or physically harasses, menaces, or intimidates a person to the disturbance of the public peace; . . .” 527 S.E.2d at 597 (alteration omitted). 11 Case: 19-10312 Date Filed: 07/19/2019 Page: 12 of 20
where such distance does not interfere with the performance of police duties does
not constitute probable cause to believe that disorderly conduct has occurred.” Id.
at 597.
Viewing this record in the light most favorable to Plaintiff, it was clear --
such that objectively “every reasonable official would have understood” in 2014 --
that Plaintiff’s conduct did not rise to the level of a crime and, thus, no arguable
probable cause existed to arrest Plaintiff. See Wilkerson, 736 F.3d at 978. Given
the assumed facts, we accept that summary judgment based on qualified immunity
is not demanded at this stage in the proceedings.
B. State Law Claims & Official Immunity
We review de novo a district court’s denial of summary judgment based on
official immunity. Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012). “Unlike
qualified immunity under federal law, we must inquire into [the officer’s]
subjective intent to determine whether he has official immunity under Georgia
law.” Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007).
Under the Georgia Constitution, law enforcement officers are entitled to
official immunity from suit and liability unless they perform their discretionary
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duties “with actual malice or with actual intent to cause injury in the performance
of their official functions.” Gilbert v. Richardson, 452 S.E.2d 476, 483 (Ga. 1994)
(citing GA. CONST. art. I, § II, para. IX(d)). That Officer Camille was engaged in a
discretionary function at all times pertinent to this appeal is undisputed.
For purposes of official immunity, “actual malice” means “‘express malice,’
i.e., a deliberate intention to do wrong, and does not include ‘implied malice’, i.e.,
the reckless disregard for the rights or safety of others.” Murphy v. Bajjani, 647
S.E.2d 54, 60 (Ga. 2007) (quotations omitted). “A ‘deliberate intention to do
wrong’ such as to constitute the actual malice necessary to overcome official
immunity must be the intent to cause the harm suffered by the plaintiffs.” Id. We
have described this as a “demanding standard.” Black v. Wigington, 811 F.3d
1259, 1266 (11th Cir. 2016).
“Actual malice requires more than ‘harboring bad feelings’ or ‘ill will’ about
another; rather, ill will must also be combined with the intent to do something
wrongful or illegal.” Wyno v. Lowndes Cnty., 824 S.E.2d 297, 304 (Ga. 2019)
(emphasis added) (quotations omitted) (citing Adams v. Hazelwood, 520 S.E.2d
896, 898 (1999)). In other words, “the subjective mental state of a public officer or
employee is irrelevant unless that mental state prompts the public officer or
employee to intend a legally unjustifiable action.” Adams, 520 S.E.2d at 898.
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As “actual malice” means an intent to act contrary to law, so the phrase
“actual intent to cause injury” -- for purposes of Georgia’s official immunity
doctrine -- means “an actual intent to cause harm to the plaintiff, not merely an
intent to do the act purportedly resulting in the claimed injury.” Kidd v. Coates,
518 S.E.2d 124, 125 (Ga. 1999) (emphasis added) (quotations omitted)
(concluding that officers who shot a man in self-defense were entitled to official
immunity because the officers lacked “actual tortious intent to harm” and, instead,
“acted only with the justifiable intent which occurs in every case of self-defense.”).
“This definition of intent contains aspects of malice, perhaps a wicked or evil
motive.” Id.
We stress that because “actual malice” does not include “implied malice,”
the court will not “speculate [or] make assumptions” about improper motive; a
mere “inference of malice is insufficient to overcome [an] immunity defense.”
Watkins v. Latif, 744 S.E.2d 860, 863 (Ga. Ct. App. 2013); Conley v. Dawson, 572
S.E.2d 34, 37-38 (Ga. Ct. App. 2002).
A showing of improper motive requires strong record evidence of improper
motive. Compare Watkins, 744 S.E.2d at 863 (rejecting plaintiff’s argument that it
“might be inferred” -- based on the timing of his arrest -- that he was arrested in
retaliation for calling 911 during a traffic stop), and Conley, 572 S.E.2d at 37-38
(no improper motive or actual malice shown based on evidence that an officer
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discounted a witness’s statement that a driver was at-fault, excluded the statement
from the police report, and lost the witness’s contact information and that the
officer also had a business relationship with the driver’s employer), with Lagroon
v. Lawson, 759 S.E.2d 878, 883 (Ga. Ct. App. 2014) (a jury could conclude
reasonably that officers acted with actual malice where direct evidence existed that
the officers coerced teenage witnesses to give false statements, used the statements
as grounds for plaintiffs’ arrests “despite knowing of the statements’ falsity,
inaccuracy or unreliability,” sought grand jury charges “despite knowing that
[plaintiffs] had not committed any offenses,” used an interrogation to question
plaintiff about her estranged husband instead of about the case, “bragged to
[plaintiff] about testifying against her in her upcoming divorce trial,” and
concealed exculpatory evidence from the district attorney for nine months), and
Jordan, 487 F.3d at 1357 (affirming the denial of official immunity where direct
evidence existed that an officer caused the issuance of an arrest warrant as a means
to get plaintiff to come to the jail so that the officer could collect on a personal
civil debt purportedly owed to the officer).
That an officer’s decision to arrest may be “misguided,” “mistaken,”
“flawed,” or unsupported by probable cause is not enough to overcome official
immunity. See Mercado v. Swoope, 798 S.E.2d 291, 294 (Ga. Ct. App. 2017)
(“Even when an arresting officer operates on a mistaken belief that an arrest is
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appropriate, official immunity still applies.”); Marshall v. Browning, 712 S.E.2d
71, 75 (Ga. Ct. App. 2011) (even if officer was “mistaken” that the alleged acts
constituted a crime or was motivated by her personal feelings about the suspect,
nothing evidenced that the officer intended to do wrong); Reed v. DeKalb Cnty.,
589 S.E.2d 584, 587-88 (Ga. Ct. App. 2003) (“Absent malice or intent to injure, no
liability attaches to the officer’s exercise of his lawful discretion [to arrest] even
when the decision to effectuate the arrest is flawed.”); Todd v. Kelly, 535 S.E.2d
540, 542-43 (Ga. Ct. App. 2000) (concluding that an officer was entitled to official
immunity because, although his decision to seek arrest warrants “may have been
misguided,” nothing evidenced that he acted with actual malice).
Nor is “evidence demonstrating frustration, irritation, and possibly even
anger . . . sufficient to penetrate official immunity.” Selvy v. Morrison, 665 S.E.2d
401, 406 (Ga. Ct. App. 2008) (no actual malice or intent to injure shown when
officer used profanity, referred to plaintiff as a “bitch,” made derogatory comments
about plaintiff’s past “boyfriends,” threatened to kick in plaintiff’s door, and used
force to carry out plaintiff’s arrest, injuring plaintiff’s minor son in the process);
Tittle v. Corso, 569 S.E.2d 873, 877 (Ga. Ct. App. 2002) (officer’s use of
profanity, threats to blow the suspect’s head off or to unleash a police dog if the
suspect moved, and slamming the suspect against the police car was insufficient to
demonstrate actual malice).
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An officer is unentitled to summary judgment on official immunity grounds,
however, where sufficient evidence exists that -- at the time of an arrest -- the
officer had actual subjective knowledge that no crime was committed and, thus,
acted with a deliberate intent to break the law. See Lagroon, 759 S.E.2d at 883
(officers unentitled to official immunity when direct evidence existed that the
officers arrested plaintiffs and sought grand jury charges “despite knowing that
[plaintiffs] had not committed any offenses, thereby establishing that the officers
deliberately intended to do a wrongful act.” (quotations omitted)); City of Atlanta
v. Shavers, 756 S.E.2d 204, 207 (Ga. Ct. App. 2014), overruled in part on other
grounds by Rivera v. Washington, 784 S.E.2d 775 (Ga. 2016) (affirming denial of
summary judgment based on official immunity where officer arrested plaintiff
despite knowing -- based on a witness’s express statement and on clear video
surveillance footage showing directly that plaintiff had taken no items from the
store -- that no probable cause existed); Bateast v. DeKalb Cnty., 572 S.E.2d 756,
758 (Ga. Ct. App. 2002) (no official immunity when officers arrested plaintiff for
giving a false name and date of birth when there existed direct evidence that the
officers had verified successfully plaintiff’s identity before the arrest and, thus,
knew that plaintiff had committed no crime).
As evidence of Officer Camille’s improper subjective intent, Plaintiff says
that, one week before her arrest, Plaintiff and other Cop Watch volunteers filmed
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several police officers -- including Officer Camille -- as the officers searched and
detained three men in Woodruff Park. Plaintiff says that, on that day, Officer
Camille appeared “upset” about being filmed and that Officer Camille referred to
the volunteers as “just a bunch of leeches trying to game the system.” Plaintiff
contends that, one week later, Officer Camille patrolled the park and ultimately
arrested her unlawfully in retaliation for Plaintiff’s having filmed Officer Camille
the previous week.
Against the backdrop of cases applying Georgia’s official immunity
doctrine, we cannot conclude (by inference) from the evidence in this record that
Officer Camille’s conduct rose to the level of actual malice or an actual intent to
injure Plaintiff. Evidence sufficient to overcome immunity in Georgia must do
more than maybe give rise to a suspicion of improper motive.
That Officer Camille patrolled Woodruff Park on 1 June is no evidence of
actual malice or actual intent to cause injury. Officer Camille was on-duty that
day, the public park was within his routine assigned “foot beat,” and Officer
Camille says he observed a large crowd in the park: a legally justifiable reason to
patrol.
As explained more fully in Part II(A) of this opinion, we have determined
that the current record (viewed in Plaintiff’s favor) shows that no probable cause
existed to arrest Plaintiff and, thus, that Plaintiff’s arrest was unlawful. But
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Georgia law makes clear that -- to avoid summary judgment on official immunity
grounds -- for Plaintiff to show merely that Officer Camille lacked probable cause
to arrest or that his decision to arrest her was “mistaken” or even “reckless” is not
enough. See, e.g., Mercado, 798 S.E.2d at 294; Marshall, 712 S.E.2d at 75;
Murphy, 647 S.E.2d at 60.
Nowhere in this record is evidence presented that Officer Camille told
people -- before or after Plaintiff’s arrest -- that he intended to arrest Plaintiff to
retaliate for her filming him a week earlier or just to hurt Plaintiff. Nor is evidence
present that Officer Camille at any time threatened Plaintiff with some punishment
for her filming him. And no other evidence has been presented that is strong
enough to make it probable that Officer Camille actually acted with the necessary
intent to do something illegal or intent to cause harm.
Officer Camille did not arrest the other volunteers who had also engaged in
filming and engaged in criticizing him. Even if an erroneous decision, Officer
Camille’s decision to arrest Plaintiff was not capricious or entirely unsupported. In
the context of other things on the day of the arrest, Plaintiff’s conduct was singular;
Officer Camille arrested Plaintiff only after she (at him and in front of a crowd)
yelled about claimed unwelcome police presence -- including a shouted public
demand for him to account to her for his policing activity. Unlike the officers who
were denied official immunity in Lagroon, Shavers, and Bateast, nothing evidences
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adequately that Officer Camille had actual subjective knowledge at the time of
Plaintiff’s arrest that Plaintiff had plainly committed no offense or knowledge that
probable cause was doubtlessly lacking. See Lagroon, 759 S.E.2d at 883; Shavers,
756 S.E.2d at 207; Bateast, 572 S.E.2d at 758.
That Officer Camille might have been frustrated, irritated, or angry with
Plaintiff is immaterial unless Plaintiff can show that Officer Camille’s subjective
mental state prompted him to intend to act unlawfully. See Wyno, 824 S.E.2d at
304; Adams, 520 S.E.2d at 898; Selvy, 665 S.E.2d at 406. Given the Georgia
immunity precedents and on this record -- without more, we cannot rightly “infer”
or “speculate” that Officer Camille arrested Plaintiff in retaliation for her having
filmed him a week earlier.
Because Plaintiff has offered insufficient evidence of actual malice or of
actual intent to cause injury, Officer Camille is entitled to official immunity from
Plaintiff’s state-law claims. We vacate in part the district court’s denials of
immunity and remand for entry of summary judgment in favor of Officer Camille
on Plaintiff’s claims under Georgia law.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.