from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:15-cv-03307-LMM
JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS,
CARNES, CIRCUIT JUDGE
action arises from Plaintiff Austin Gates's arrest for
violating Georgia's mask statute, O.C.G.A. §
16-11-38, during a protest in downtown Atlanta on November
26, 2014. Plaintiff alleges that he was arrested without
probable cause in violation of the Fourth Amendment, and that
this flawed arrest also violated the First Amendment and
various state laws. In this appeal, we consider his claims
against three City of Atlanta police officers who were
involved in the arrest: defendants Khokhar, Brauninger, and
Whitmire (collectively "Defendants"). As to these
individual officers, and based on this arrest, Plaintiff has
asserted federal claims, pursuant to 42 U.S.C. § 1983,
as well as state law claims for assault and battery, invasion
of privacy, unlawful detention, and malicious prosecution.
Defendants filed a motion to dismiss Plaintiff's §
1983 and state law claims on the grounds of qualified
immunity and official immunity. The district court, however,
denied their motion, and they now appeal.
carefully reviewed the record, and after hearing oral
argument, we conclude that Defendants are entitled to
qualified immunity on Plaintiff's § 1983 claims and
to official immunity on Plaintiff's state law claims.
Accordingly, we REVERSE the district
court's order denying the motion to dismiss and
REMAND the case for further proceedings
consistent with this opinion.
assume the following facts to be true for purposes of this
appeal. On November 26, 2014, Plaintiff
participated in a march in downtown Atlanta to protest a
grand jury's decision in a police-shooting case in
Ferguson, Missouri. During the protest, Plaintiff was given a
"V for Vendetta" mask by another protestor. As the
image attached to the complaint shows, the mask is a stylized
image of the Guy Fawkes character from the movie "V for
Vendetta." It is designed to cover the entire face.
According to Plaintiff, the mask has become popular among
people protesting against politicians, banks, and financial
institutions. Plaintiff acknowledges that he and other
protesters wore the "V for Vendetta" masks during
this Ferguson protest in Atlanta. Plaintiff alleges that he
wore the mask both to "express himself and his
disagreement with the Ferguson, Missouri grand jury's
decision, " and to maintain his anonymity during the
protest. Plaintiff claims he never intended to threaten or
intimidate anyone by wearing the mask.
point during the protest, Defendant Whitmire ordered the
protesters to remove their masks. Plaintiff acknowledges that
Whitmire warned the protesters multiple times over a
loudspeaker that any person wearing a mask during the protest
would be arrested. Plaintiff, however, claims he did not hear
the warning. Whitmire subsequently issued an order over the
radio for the police to arrest anyone who was wearing a mask.
to Plaintiff, after Whitmire issued the order to arrest
protesters wearing masks, a "swarm" of officers
dressed in riot gear, including Defendant Khokhar, pushed
their way into the protesting crowd. Plaintiff alleges that
Khokhar grabbed Plaintiff by the shoulder, pulled him by the
strap of his backpack, and arrested him. When Plaintiff asked
what he had done and why he was being arrested, Khokhar did
not immediately respond. After conferring with other
officers, Khokhar "handcuffed [Plaintiff] with plastic
cuffs" and "shoved [him] into [a] police car."
Khokhar told Plaintiff that he was being arrested for wearing
alleges that he subsequently was taken to the Zone 5
precinct, where he was searched and then left in a chair in a
back room, handcuffed. While Plaintiff was detained, Khokhar
drafted an offense report charging Plaintiff with violating
Georgia's mask statute, O.C.G.A. § 16-11-38. The
I [Officer Khokhar] observed [Plaintiff] wear a "V for
Vendetta" mask. [Plaintiff] was actively participating
in a protest. The protest had been warned on the loud
speakers multiple times that anyone wearing a mask will be
arrested. This information was relayed by Unit 15 over the
radio that anyone wearing a mask should be arrested.
[Plaintiff] still had his mask on. [Plaintiff] was arrested
for wearing a mask.
Brauninger, Khokhar's supervising officer, reviewed and
authorized the offense report.
on the charges asserted against him in the offense report,
Plaintiff, along with other arrestees from the protest, was
booked, searched, and photographed at the precinct. After
several hours of waiting at the precinct, Plaintiff was taken
to the Fulton County jail. Once he arrived at the jail,
Plaintiff was able to make a phone call and ultimately post
filed a complaint about his arrest with the City of Atlanta
Office of Professional Standards. The City determined that
Plaintiff's arrest was "justified, lawful, and
proper" and exonerated all of the officers who were
involved in it. As noted, Plaintiff thereafter sued the City
of Atlanta and the individual officers, asserting § 1983
claims and state law claims. The individual officers moved to
dismiss Plaintiff's § 1983 claims on the ground of
qualified immunity and his state law claims on the ground of
official immunity. The district court denied the motion.
Standard of Review
review the denial of a Rule 12(b)(6) motion to dismiss on
qualified or official immunity grounds de novo,
applying the same standard as the district court. See
Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).
When ruling on a motion to dismiss, we "accept the
facts alleged in the complaint as true, drawing all
reasonable inferences in the plaintiff's favor."
Keating v. City of Miami, 598 F.3d 753, 762 (11th
Cir. 2010). To avoid dismissal, the "complaint must
contain sufficient factual matter . . . to state a claim to
relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). A complaint is plausible on its face when it
contains sufficient facts to support a reasonable inference
that the defendant is liable for the misconduct alleged.
argue that they are entitled to qualified immunity on
Plaintiff's federal constitutional claims asserted under
§ 1983. "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."
Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.
2003) (internal quotation marks omitted). "When properly
applied, [qualified immunity] protects 'all but the
plainly incompetent or those who knowingly violate the
law.'" Ashcroft v. al-Kidd, 563 U.S. 731,
clearly established, a right must be well-established enough
"that every reasonable official would have understood
that what he is doing violates that right." Reichle
v. Howards, 566 U.S. 658, 664 (2012) (internal quotation
marks omitted and alteration adopted). In other words,
"existing precedent must have placed the statutory or
constitutional question beyond debate" and thus
given the official fair warning that his conduct violated the
law. Id. (emphasis added); Coffin v.
Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc)
("The critical inquiry is whether the law provided
[Defendant officers] with 'fair warning' that their
conduct violated the Fourth Amendment.").
warning is most commonly provided by materially similar
precedent from the Supreme Court, this Court, or the highest
state court in which the case arose. See Terrell v.
Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). However, a
judicial precedent with identical facts is not essential for
the law to be clearly established. Youmans v.
Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).
Authoritative judicial decisions may "establish broad
principles of law" that are clearly applicable to the
conduct at issue. Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1209 (11th Cir. 2007). And
occasionally, albeit not very often, it may be obvious from
"explicit statutory or constitutional statements"
that conduct is unconstitutional. Id. at 1208-09. In
all of these circumstances, qualified immunity will be denied
only if the preexisting law by case law or otherwise
"make[s] it obvious that the defendant's acts
violated the plaintiff's rights in the specific set of
circumstances at issue." Youmans, 626 F.3d at
defendant who asserts qualified immunity has the initial
burden of showing he was acting within the scope of his
discretionary authority when he took the allegedly
unconstitutional action. See Bennett v. Hendrix, 423
F.3d 1247, 1250 (11th Cir. 2005). Assuming the defendant
makes the required showing, the burden shifts to the
plaintiff to establish that qualified immunity is not
appropriate by showing that (1) the facts alleged make out a
violation of a constitutional right and (2) the
constitutional right at issue was clearly established at the
time of the alleged misconduct. See Perez v.
Suszczynski, 809 F.3d 1213, 1218 (11th Cir. 2016).
Plaintiff does not dispute that Defendants were acting in
their discretionary authority when they arrested him on
November 26, 2014. The burden thus lies with Plaintiff to
show that his arrest violated a constitutional right and that
the right was clearly established at the time of the arrest.
See id. Plaintiff cannot satisfy either prong of
District Court's Order
district court implicitly agreed that Defendants had probable
cause to arrest Plaintiff based on the elements of the mask
law as set out in the statute. The court, however, noted that
the Georgia Supreme Court has also imposed a mens rea element
onto the statute, requiring that the wearer of the mask know
or reasonably should know that his actions give rise to a
reasonable apprehension of intimidation, threats, or
impending violence. The district court further added that
Plaintiff had alleged that he never intended to threaten,
intimidate, or cause the apprehension of violence by his
mask-wearing. Given this protestation by Plaintiff in his
complaint, the district court concluded that the defendant
officers lacked even arguable probable cause to arrest
Plaintiff for violating the mask statute.
whether existing precedent gave Defendants fair notice that
an arrest under these circumstances would be unlawful, the
district court stated, "The Eleventh Circuit has
concluded that it is 'clearly established that
an arrest without probable cause to believe a crime has been
committed violates the Fourth Amendment.' Von Stein
v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990)."
(emphasis in district court order) (alteration accepted). The
court concluded that Defendants were therefore on notice that
their arrest in this case was unlawful. We disagree with the
district court's analysis.
Constitutional Violation: False Arrest
support of his § 1983 claims, Plaintiff alleges that he
was arrested without probable cause while engaging in a
protest, which action, he says, violated his Fourth Amendment
and First Amendment rights. It is true that a warrantless
arrest lacking probable cause violates the Constitution, and
such an arrest can therefore potentially underpin a §
1983 claim. Brown v. City of Huntsville, Ala., 608
F.3d 724, 734 (11th Cir. 2010). The converse is also true,
which means that "the existence of probable cause at the
time of arrest is an absolute bar to a subsequent
constitutional challenge to the arrest." Id. See
also Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir.
2002) (observing that "[w]hatever the officers'
motivation . . . the existence of probable cause to arrest
[the plaintiff] defeats [a] First Amendment claim"
arising out of the arrest); Redd v. City of
Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) (in the
context of a First Amendment claim arising from an alleged
false arrest, ...