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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13820
____________________
JULIUS GOLDRING,
Plaintiff-Appellee,
versus
VLADIMIR HENRY,
JUAN RESTREPO,
Atlanta Police Department Officers, in their
individual capacities,
Defendants-Appellants.
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19-13820 Opinion of the Court 2
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-01191-WMR
____________________
Before ROSENBAUM, LUCK, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Julius “JuJu” Goldring sued Officers Vladimir Henry and
Juan Restrepo for malicious prosecution under 42 U.S.C. section
1983 and Georgia law. She alleged that the officers falsely accused
her of jaywalking and trafficking in cocaine to obtain a warrant for
her arrest. The officers moved for summary judgment, arguing
that they were entitled to qualified and official immunity. After
careful review of the record and with the benefit of oral argument,
we affirm the district court’s denial of summary judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Everyone agrees that, on the evening of October 10, 2015,
Goldring was walking in Midtown, Atlanta; Officers Henry and
Restrepo initially arrested her for jaywalking; they took her to the
police station; at the police station, Officer Henry field tested the
powdery contents of a stress ball found in Goldring’s purse; and the
officers got a warrant for Goldring’s arrest for jaywalking and
trafficking in cocaine. But beyond these undisputed facts, Goldring
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and the officers had sharply conflicting accounts about what
happened that night.
According to Goldring, she was “walking up a sidewalk”
with her boyfriend, Darrell Ford, and two of his friends. They got
to an intersection and “stood on the corner” waiting to cross the
street. That’s when the officers stopped her group. The officers
detained Goldring and Ford but let the other two people go. The
officers told Goldring they stopped her because she had jaywalked.
Goldring protested because she was “standing on the sidewalk”
when the officers seized her. She maintained that she “was on the
sidewalk or in a crosswalk at all times while walking that evening.”
After the officers stopped Goldring, Officer Restrepo frisked
her, searched her purse—to which Goldring consented—and found
a stress ball. It was “a regular stress ball” with a metal clip.
Goldring told Officer Restrepo that it was just a stress ball and said
he could open it. Officer Restrepo cut the ball open, revealing a
white “powdery, sandy kind of substance.” The officers suspected
that this powder was cocaine but they weren’t sure—in Officer
Restrepo’s words, there are “a jillion powders that could be white.”
The powder inside Goldring’s stress ball was just sand.
The officers transported Goldring and Ford to the police
station so they could test the powder inside the stress ball. Officer
Henry used a NARK II test kit to perform the test. He didn’t have
any specific training in drug identification or in how to use the
NARK II test.
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Here’s how the NARK II test works. The officer is supposed
to: (1) place a specific amount of the suspected cocaine into a
testing pouch and seal it; (2) break the first ampoule (a glass capsule
containing the testing liquid) and shake the pouch, which forms a
blue solution; (3) break the second ampoule and shake the pouch
again, which forms a pink solution if the test is positive; and
(4) break the third ampoule and shake the pouch a third time—if
cocaine is present, holding the pouch at an angle forms a layer of
pink liquid over a layer of blue liquid. Only “pink over blue”
qualifies as a positive result. Any other result, including a uniform
color, is a negative result. And the ampoules must be broken in the
correct sequence; breaking them all at once would not result in a
“meaningful finding.”
Goldring witnessed Officer Henry perform the field test. He
“looked frustrated,” “huffed and puffed” throughout the test, and
shook the pouches containing the powder “with aggression like he
was mad.” Although Officer Henry used multiple test kits,
Goldring saw that the liquid inside never changed color. She
testified that a third officer saw what Officer Henry was doing and
“kept telling him that it was nothing” and was “not a drug,”
referring to the powder in the test pouches, and told Officer Henry
to “[g]ive it up buddy.”
The officers tell a different story about what happened
during Goldring’s arrest in Midtown and what happened back at
the police station. As to the jaywalking incident, the officers
testified that Goldring was only with Ford that night (contrary to
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Goldring’s testimony that she was with two more people) and
illegally crossed the street without using a crosswalk. Goldring was
“walking in the middle of the street,” the officers maintained, when
she was seized.
As to the field test, Officer Henry testified that he performed
the test twice—both times crushing the three ampoules
simultaneously. The liquid then turned a “bluish-purple.” Officer
Henry thought this was a “faint positive,” incorrectly believing that
“if it’s darker than pink, then it’s positive,” while “if it just showed
pink” it was negative. Officer Restrepo testified that he didn’t
watch the test and Officer Henry later told him the result was
positive. But in an internal affairs report, Officer Restrepo stated
that Officer Henry showed him the test result—a “faint positive.”
There’s no dispute about what happened after the field test.
The officers applied for a warrant for Goldring’s arrest for walking
in a roadway, in violation of O.C.G.A. section 40-6-96, and
trafficking in cocaine, in violation of O.C.G.A. section 16-13-31.
Officer Restrepo couldn’t remember whether he helped draft the
warrant application. Officer Henry stated that Officer Restrepo
wrote the warrant application’s narrative and spoke to the
magistrate judge about the warrant by video call. Officer Henry’s
signature is on the warrant application, but he couldn’t recall
whether Officer Restrepo signed it on his behalf.
The magistrate judge issued the warrant that same day.
Goldring’s bond was set at $25,500, which she couldn’t afford. On
October 23, 2015, state prosecutors charged Goldring with
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trafficking in cocaine and jaywalking. On November 17, 2015, the
Georgia Bureau of Investigations determined that the powder in
Goldring’s stress ball wasn’t cocaine. But the state didn’t dismiss
the charges until March 21, 2016. Goldring spent five months in
jail before the charges were finally dropped.
Goldring then sued the officers for malicious prosecution
under section 1983 and Georgia state law. She alleged that the
officers lacked arguable probable cause to believe she had
jaywalked or trafficked in cocaine. Goldring also alleged that the
officers “lied and fabricated evidence to support the trafficking
charge.”
The officers moved for summary judgment. Officer
Restrepo argued that he didn’t prosecute Goldring; the prosecution
began with her indictment, Officer Restrepo maintained, and his
role in the case was limited to Goldring’s warrantless arrest. Both
officers argued they were entitled to qualified immunity because
they had actual or arguable probable cause to arrest Goldring for
jaywalking and trafficking in cocaine. And the officers argued they
were entitled to official immunity as to her state law claim because
they hadn’t acted with actual malice.
Goldring responded that: (1) there was no probable cause
or arguable probable cause to arrest her for jaywalking; (2) there
was no probable cause or arguable probable cause to arrest her for
trafficking in cocaine because Officer Henry’s statements in the
warrant affidavit were intentionally false; (3) a jury could
reasonably find that Officer Restrepo knew the test results were
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negative and helped draft the warrant application; and (4) the
officers acted with actual malice because they knew they lacked
probable cause and still sought a warrant.
The district court held a hearing on the officers’ motion for
summary judgment and orally denied the motion. In the district
court’s view, “[t]his case [was] crying out for a trial.” The district
court said that “maybe the officers just made a mistake,” but there
was “enough evidence in the record to suggest that it might not
have been a mistake.”
The district court entered a one-page order denying
summary judgment. The district court wrote that because “the
evidence on the record reflects that issues of fact still remain,”
summary judgment was “not proper at this time.”
STANDARD OF REVIEW
“A district court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is an appealable ‘final
decision’ . . . .” Keith v. DeKalb Cnty., 749 F.3d 1034, 1047 (11th
Cir. 2014) (alteration adopted and citation omitted). We review
de novo the district court’s denial of summary judgment, id.,
viewing the evidence and factual inferences in the light most
favorable to the non-moving party, Perez v. Suszczynski, 809 F.3d
1213, 1217 (11th Cir. 2016).
DISCUSSION
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The officers argue that they had probable cause or arguable
probable cause to arrest Goldring for jaywalking and trafficking in
cocaine, entitling them to qualified immunity as to her section 1983
claim. The officers also argue that they didn’t act with actual
malice, entitling them to official immunity as to her state law claim.
And Officer Restrepo argues that he wasn’t the one that prosecuted
Goldring—the district attorney filed the charges—and he didn’t
prepare the warrant application.
Qualified Immunity and Malicious Prosecution
The main issue before us is whether the officers are entitled
to qualified immunity as to Goldring’s section 1983 malicious
prosecution claim. They are not.
Qualified immunity “gives government officials breathing
room to make reasonable but mistaken judgments” and “protects
‘all but the plainly incompetent or those who knowingly violate
the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation
omitted). Officers who act within their discretionary authority are
“entitled to qualified immunity under [section] 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the time.’”
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)). Because Goldring
doesn’t contest that the officers acted within their discretionary
authority, she “bears the burden of proving that they are not
entitled to qualified immunity.” Williams v. Aguirre, 965 F.3d
1147, 1157 (11th Cir. 2020).
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Goldring argues that the officers “violated [her] clearly
established right under the Fourth Amendment to be free from an
unreasonable seizure as a result of a malicious prosecution.” See
id. This claim requires a seizure “pursuant to legal process.” Black
v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016) (citation
omitted). A malicious prosecution occurs “when legal process
itself goes wrong—when, for example, a judge’s probable-cause
determination is predicated solely on a police officer’s false
statements.” Manuel v. City of Joliet, 137 S. Ct. 911, 918 (2017). In
these circumstances, legal process “has done nothing to satisfy the
Fourth Amendment’s probable-cause requirement.” Id. at 918–19.
To make out this claim, Goldring must show “a violation of
[her] Fourth Amendment right to be free of unreasonable seizures”
along with “the elements of the common law tort of malicious
prosecution.” Williams, 965 F.3d at 1157 (citation omitted). To
prove a violation of her Fourth Amendment rights, Goldring must
establish: “(1) that the legal process justifying [her] seizure was
constitutionally infirm and (2) that [her] seizure would not
otherwise be justified without legal process.” Id. at 1165. Her
arrest warrant was constitutionally infirm if she establishes that the
officers “intentionally or recklessly made misstatements or
omissions necessary to support the warrant.”1 Id. As for the
1 A plaintiff can also show that her seizure was constitutionally infirm by
establishing that the officer “should have known that his [warrant] application
failed to establish probable cause.” Williams, 965 F.3d at 1165. Because there
is a genuine dispute about whether the officers’ accusations against Goldring
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common law elements of malicious prosecution, Goldring must
show that the officers “‘instituted or continued’ a criminal
prosecution against [her], ‘with malice and without probable
cause,’ that terminated in [her] favor and caused damage to [her].”
Id. at 1157 (quoting Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir.
2019)).
There’s “significant overlap” between a plaintiff’s burden to
establish that she suffered a seizure pursuant to legal process that
violated the Fourth Amendment and her burden to establish the
common law elements of malicious prosecution. Luke v. Gulley,
975 F.3d 1140, 1143 (11th Cir. 2020). “If a plaintiff establishes that
a defendant violated [her] Fourth Amendment right to be free from
seizures pursuant to legal process, [s]he has also established that
the defendant instituted criminal process against [her] with malice
and without probable cause.” Id. at 1144.
Here’s how qualified immunity intersects with a malicious
prosecution claim. The “law is clearly established . . . that the
Constitution prohibits a police officer from knowingly making false
statements in an arrest affidavit about the probable cause for an
arrest in order to detain a citizen if such false statements were
necessary to the probable cause.” Williams, 965 F.3d at 1168–69
(alterations adopted and citation omitted). When a plaintiff
presents a genuine dispute of fact as to whether an officer
were intentionally false, we do not address whether the officers should have
known that the warrant application failed to establish probable cause.
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“intentionally or recklessly made misstatements” in a warrant
application, which misstatements were necessary to establish
probable cause, and the plaintiff’s pretrial detention “could not be
justified as a warrantless arrest,” the plaintiff has “established a
genuine dispute over whether the officers violated [her] clearly
established rights under the Fourth Amendment.” Id. at 1165,
1167, 1169.
A. Whether Officer Restrepo instituted Goldring’s criminal
prosecution
But first we consider whether Officer Restrepo can be held
liable for the contents of the warrant application. He argues that
he wasn’t the one that prosecuted Goldring because, in a
warrantless arrest case, the judicial proceeding only begins when
the defendant “is arraigned or indicted.” Kingsland v. City of
Miami, 382 F.3d 1220, 1235 (11th Cir. 2004). Officer Restrepo
argues that Goldring was prosecuted when she was indicted by the
district attorney.
Goldring’s malicious prosecution claim arises from her
seizure pursuant to the arrest warrant, and “[o]btaining an arrest
warrant is one of the initial steps of a criminal prosecution.”
Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996), abrogated on
other grounds by Wallace v. Kato, 549 U.S. 384 (2007). This case is
nothing like Kingsland, where the police arrested the plaintiff on
the scene following a crash for driving under the influence and
didn’t seek or obtain an arrest warrant. 382 F.3d at 1224–25.
Rather, this case is like Williams, where the plaintiff was initially
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arrested without a warrant but later held on an arrest warrant. 965
F.3d at 1153, 1155.
Indeed, the case before us involves a claim of malicious
prosecution and not one for false arrest. Our discussion in
Williams explains the difference between the two—the former is
based on a warrantless arrest and the latter on an arrest following
the issuance of a warrant. See id. at 1157–58. Thus, the issuance
of the warrant against Goldring—not her indictment—was when
the criminal prosecution was instituted against her for purposes of
her malicious prosecution claim. See id. at 1158 (“Of course,
warrant-based seizures fall within th[e] category” of malicious
prosecutions).
Officer Restrepo also argues that his interaction with
Goldring was limited to her warrantless arrest and he didn’t sign
the warrant application. Thus, he maintains that Goldring’s
malicious prosecution claim against him fails because he did not
initiate a criminal prosecution against her. We disagree. Although
Officer Restrepo didn’t remember whether he helped write the
warrant application, Officer Henry testified that Officer Restrepo
wrote the narrative for the warrant application and spoke to the
magistrate judge about it. This is summary judgment evidence
from which a reasonable jury could find that Officer Restrepo had
assisted in drafting the warrant application and getting it signed by
the magistrate judge. Officer Restrepo was involved in initiating
the prosecution against Goldring.
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As for Officer Henry, he has not advanced any arguments
that he did not initiate a criminal prosecution against Goldring.
Nor could he because the record is clear that he signed the affidavit
supporting the arrest warrant presented to the magistrate judge.
B. The Jaywalking Charge
As an initial matter, we reject the notion that if probable
cause existed for at least one of the charges, then the officers may
avoid a malicious-prosecution claim. Our decision in Williams
makes clear that the “any-crime” rule—under which officers are
insulated from false-arrest claims as long as probable cause exists to
arrest the suspect for some crime—does not apply in the malicious-
prosecution context. Williams, 965 F.3d at 1158–62. Rather,
arguable probable cause must exist for each of the charged crimes:
here, jaywalking and trafficking in cocaine.
Under Georgia law, a person may not “stand or stride along
and upon an adjacent roadway unless there is no motor vehicle
traveling within 1,000 feet of such pedestrian on such roadway” if
a “sidewalk is provided.” O.C.G.A. § 40-6-96(b). A violation of this
statute is a misdemeanor. Id. § 40-6-1(a). The officers argue they
had actual and arguable probable cause to arrest Goldring for
jaywalking because they saw her crossing the street without using
a crosswalk.
Goldring “bears the burden of creating a genuine dispute
about whether the officers’ accusation” that she jaywalked “was
intentionally false [or reckless] and not, for example, a mistaken
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belief on the part of the officers.” See Williams, 965 F.3d at 1165.
Conclusory allegations or speculation will not do. Id. Goldring
must “‘identify affirmative evidence from which a jury could find
that’ the officers lied when they stated” in the warrant application
that she jaywalked. See id. at 1166 (quoting Crawford-El v. Britton,
523 U.S. 574, 600 (1998)).
That kind of affirmative evidence is present here. Both
officers alleged that they saw Goldring jaywalking; but “a
reasonable jury could find that the officers lied” in making this
accusation. See id. Goldring stated that at the time of the incident
she was “on the corner . . . about to cross” the street when the
officers stopped her. She maintained that she had walked on the
sidewalk or on crosswalks “at all times” that night. If one credits
Goldring’s version of the facts (as we must at this stage), she was
on the sidewalk when the officers detained her, she never crossed
a street that night without using a crosswalk, and she didn’t violate
section 40-6-96(b).
Thus, “the record presents a genuine dispute about
whether” the allegation that Goldring jaywalked was a
misstatement and, if so, whether that “misstatement in the warrant
application was ‘made either intentionally or in reckless disregard
for the truth.’” See id. at 1166 (citation omitted). If Goldring was
standing on the sidewalk, as she alleged, “the chances are low that
both officers were subjectively mistaken” and genuinely believed
she was standing “in the middle of the street.” See id. In other
words, “the record supports an inference that someone is lying.”
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Id.; Grider v. City of Auburn, 618 F.3d 1240, 1258 (11th Cir. 2010)
(holding that the district court correctly denied qualified immunity
where the plaintiff and the officer had “completely different
versions” of the incident and the plaintiff “unambiguously
denie[d]” committing the crime).
The next question is “whether, after deleting the
misstatement,” the warrant “affidavit is insufficient to establish
probable cause.” Paez, 915 F.3d at 1287 (cleaned up). If we remove
the allegation from the warrant application that Goldring was in
the street, “probable cause evaporates . . . because it was the only
fact in the affidavit supporting probable cause for” jaywalking. See
Williams, 965 F.3d at 1166–67 (cleaned up). Goldring therefore
met her burden of raising a genuine question of fact as to whether
“the legal process justifying [her] seizure” for jaywalking “was
constitutionally infirm.” See id. at 1165. This also satisfied her
burden of showing that the officers acted with malice: by
establishing that the officers “violated [her] Fourth Amendment
right to be free from seizures pursuant to legal process,” Goldring
“also established that [they] instituted criminal process against [her]
with malice . . . .” See Luke, 975 F.3d at 1144.
The final question is whether Goldring’s seizure “would not
otherwise be justified without legal process” “as a warrantless
arrest.” See Williams, 965 F.3d at 1165, 1167. It wouldn’t.
Goldring’s more than five-month “seizure was far too long to be
justified without legal process.” See id. at 1167; Cnty. of Riverside
v. McLaughlin, 500 U.S. 44, 56–57 (1991) (holding that a person
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cannot be held longer than forty-eight hours in custody after a
warrantless arrest without legal process).
To sum up, Goldring offered summary judgment evidence
in support of every element of her section 1983 malicious
prosecution claim. She offered proof that the officers initiated a
criminal prosecution against her that terminated in her favor by
intentionally lying in the warrant application that she had
jaywalked, in violation of the Fourth Amendment, which resulted
in a seizure that couldn’t be justified without legal process.
Because “the law is clearly established that the Constitution
prohibits a police officer from knowingly making false statements
in an arrest affidavit about the probable cause for an arrest in order
to detain a citizen if such false statements were necessary to the
probable cause,” Williams, 965 F.3d at 1168–69 (alterations
adopted and citation omitted), Goldring “established a genuine
dispute over whether the officers violated [her] clearly established
rights under the Fourth Amendment” as to her seizure for
jaywalking, id. at 1169. The district court correctly concluded that
the officers weren’t entitled to qualified immunity at this stage of
the case.
C. The Trafficking in Cocaine Charge
Our analysis as to the trafficking in cocaine charge mirrors
how we analyzed the jaywalking charge. We ask whether
Goldring “established a genuine dispute over whether the officers
violated [her] clearly established rights under the Fourth
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Amendment” as to her seizure for trafficking cocaine. Id. Because
the officers played different roles as to the drug test, we examine
each officer separately.
i. Officer Henry
Officer Henry argues he had arguable probable cause to
believe that Goldring trafficked in cocaine. Any error he made in
performing the field test was a reasonable one, he maintains,
entitling him to qualified immunity. We disagree. There’s
summary judgment evidence here from which a jury could
reasonably find that Officer Henry intentionally misstated the test
results.
Goldring, who witnessed the field test, testified that Officer
Henry grew frustrated and angry as he tested the sandy powder.
She saw a third officer tell Officer Henry that he should “give it up”
because the powder was “nothing” and was “not a drug.” Goldring
said that the field test was negative because she saw that the color
“never changed” inside the pouch and “nothing happened to
indicate the presence of an illicit substance.”
From this evidence, “a reasonable jury could find that
[Officer Henry] lied” about obtaining a “faint positive” test result.
See id. at 1166. A jury could infer that Henry was frustrated during
the test because he wasn’t getting a positive result. A jury could
infer that the third officer told Officer Henry the powder “was
nothing” and wasn’t a drug because he saw that Officer Henry
wasn’t getting a positive result. And a jury could infer that Officer
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Henry knew the result he got wasn’t positive—because it “never
changed” color and wasn’t “pink over blue”—yet he nevertheless
claimed in the warrant application that the powder was cocaine.
Given these valid inferences, “the record presents a genuine
dispute about whether” Officer Henry’s allegation that the field
test yielded a “faint positive” was a misstatement and whether that
“misstatement in the warrant application was ‘made either
intentionally or in reckless disregard for the truth.’” See id. at 1166
(citation omitted). If the test solution never changed color, as
Goldring alleged, “the chances are low that” Officer Henry was
“subjectively mistaken” and truly believed that the solution
changed color. See id. at 1166. Once again, “the record supports
an inference that someone is lying” about whether the solution
changed color during the field test. See id.
As to whether, after deleting the misstatement, the warrant
affidavit was “insufficient to establish probable cause,” Paez, 915
F.3d at 1287 (citation omitted), we conclude that it was insufficient.
Other than the field test, the officers had no evidence that the
powder in Goldring’s stress ball was cocaine. Goldring didn’t
confess that the powder was cocaine, the officers didn’t find other
drugs or paraphernalia on her person suggesting that the powder
was cocaine, and the officers couldn’t tell what the powder was
based on its appearance. In Officer Restrepo’s words, there are “a
jillion” white powders. Without a positive test result, the officers
had no evidence to support probable cause; “probable cause
evaporates after deleting the misstatement because it was the only
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fact in the affidavit supporting probable cause for” trafficking in
cocaine. See Williams, 965 F.3d at 1166–67 (cleaned up).
Goldring therefore presented summary judgment evidence
that “the legal process justifying [her] seizure” for trafficking in
cocaine “was constitutionally infirm.” See id. at 1165. And, by
showing that Officer Henry “violated [her] Fourth Amendment
right to be free from seizures pursuant to legal process,” she
“established that [he] instituted criminal process against [her] with
malice . . . .” See Luke, 975 F.3d at 1144. Finally, Goldring’s seizure
for trafficking in cocaine couldn’t be justified as a warrantless
arrest; her seizure for the cocaine charge “was far too long to be
justified without legal process.” See Williams, 965 F.3d at 1167.
Thus, as to Officer Henry’s involvement in Goldring’s
seizure for trafficking in cocaine, she “established a genuine dispute
over whether [he] violated [her] clearly established rights under the
Fourth Amendment.” See id. at 1169. As we have said, it is clearly
established that officers cannot knowingly make false statements in
a warrant application where those misstatements are necessary to
probable cause. See id. at 1168–69. Because Goldring established
a genuine dispute about whether Officer Henry violated her clearly
established rights by intentionally misstating the results of the field
test in the warrant application, Officer Henry is not entitled to
qualified immunity at this stage in the proceedings.
ii. Officer Restrepo
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Whether Officer Restrepo can be held liable for any
misstatements in the warrant application as to the cocaine charge
is a closer call. He didn’t perform the NARK II test and testified in
deposition that he didn’t see the results. Officer Henry told him
that the result was positive, he claimed, and Officer Restrepo took
his partner at his word. If a jury believed that testimony, there
would be no basis for holding Officer Restrepo liable for intentional
misstatements in the warrant. See United States v. Kirk, 781 F.2d
1498, 1505 (11th Cir. 1986) (“Observations of fellow officers of the
[g]overnment engaged in a common investigation are plainly a
reliable basis for a warrant applied for by one of their number.”
(citation omitted)).
But Officer Restrepo stated in an internal affairs report that
he did see the test result, which was a “faint positive.” A jury could
reasonably infer from this inconsistency that Officer Restrepo saw
the test result. And if a jury believed Goldring’s testimony and
found that the field test “never changed” color and nothing
otherwise “happened to indicate the presence of an illicit
substance,” a jury could reasonably conclude that Officer Restrepo
knew that the test result was negative—and therefore knew that
the allegation in the warrant about Goldring trafficking in cocaine
was false. See Williams, 965 F.3d at 1166 (“A reasonable jury could
infer from these inconsistencies that the officers’ statements were
intentionally false.”).
The rest of the qualified immunity analysis as to Officer
Restrepo tracks our analysis as to Officer Henry. There was no
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probable cause to arrest Goldring for trafficking in cocaine absent
the misstatement about the field test; by establishing that the legal
process underlying her seizure was constitutionally infirm,
Goldring established that Officer Restrepo acted with malice; her
seizure was too long to be justified without legal process; and it is
clearly established law that the Constitution prohibits an officer
from knowingly making false statements in an arrest affidavit about
the probable cause for an arrest where those false statements were
necessary to establish probable cause. Thus, we affirm the district
court’s order concluding that both officers are not entitled to
qualified immunity at this stage in the litigation.
Official Immunity and Actual Malice
The officers argue there was no summary judgment
evidence that they acted with actual malice or deliberately
intended to commit a wrongful act. In the absence of proof of
actual malice, the officers argue, they’re entitled to official
immunity as to Goldring’s Georgia law malicious prosecution
claim.
Under Georgia law, official immunity “protects an officer
from personal liability arising from his performance of ‘official
functions’ as long as the officer did not act with ‘actual malice’ or
‘actual intent to cause injury.’” Gates v. Khokhar, 884 F.3d 1290,
1304 (11th Cir. 2018) (quoting Ga. Const. art. I, § 2, para. IX(d)).
Actual malice is the “deliberate intention to do wrong.” Adams v.
Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999) (citation omitted).
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Official immunity “applies to an officer’s ‘discretionary
actions taken within the scope of [his] official authority.’” Gates,
884 F.3d at 1304 (quoting Cameron v. Lang, 549 S.E.2d 341, 344
(Ga. 2001)). An officer’s decision to arrest a person is a
discretionary action. See, e.g., Reed v. DeKalb Cnty., 589 S.E.2d
584, 587 (Ga. Ct. App. 2003) (“[T]he decision to effectuate a
warrantless arrest generally is a discretionary act requiring personal
judgment and deliberation on the part of the officer.”). And how
an officer investigates a case is also a discretionary action. See City
of Atlanta v. Heard, 555 S.E.2d 849, 851, 853 (Ga. Ct. App. 2001)
(“Heard also alleged that the [defendants] are liable for false arrest
and malicious prosecution due to the detectives’ improper
investigation of the matter, including their failure to scrutinize
certain evidence . . . . Considering similar allegations, however, we
have held that the conduct of the arresting officers was
discretionary . . . .”).
As we have explained, this case comes down to two
competing narratives. Goldring testified that she didn’t jaywalk
and offered evidence that the officers knew the field test was
negative. The officers claimed she did jaywalk and they mistakenly
believed the test result was positive. If a jury believed Goldring
and found that the officers applied for the warrant knowing they
lacked probable cause, this would establish that they acted with
actual malice. See Lagroon v. Lawson, 759 S.E.2d 878, 883 (Ga. Ct.
App. 2014) (deputies not entitled to official immunity where “a jury
reasonably could infer that [the officers] arrested [the plaintiffs] and
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took steps to secure grand jury charges against them despite
knowing that they had not committed any offenses, ‘thereby
establishing that the officer[s] deliberately intended to do a
wrongful act.’” (quoting City of Atlanta v. Shavers, 756 S.E.2d 204,
207 (Ga. Ct. App. 2014))). Because “the relevant facts concerning
the [officers’] behavior at the time of the alleged tort are in
dispute,” the district court correctly concluded that it couldn’t
“resolve the factual issues on a motion for summary judgment.”
See Nichols v. Prather, 650 S.E.2d 380, 387 (Ga. Ct. App. 2007).
CONCLUSION
There are outstanding issues of fact in this case that cannot
be resolved by summary judgment. Determining what happened
during Goldring’s initial arrest and the field test “on this highly
disputed factual record” is “exactly the sort of factual, credibility-
sensitive task best left to the jury.” See Skop v. City of Atlanta, 485
F.3d 1130, 1141 (11th Cir. 2007). We affirm the district court’s
order denying the officers’ claim of qualified and official immunity.
AFFIRMED.