[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2008
No. 07-15028 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-02463-CV-JTC-1
CAITLIN CHILDS,
CHRISTOPHER FREEMAN,
Plaintiffs-Appellees,
versus
DEKALB COUNTY, GEORGIA, et al.,
Defendants,
DETECTIVE D. A. GORMAN,
individually and in his official capacity as a
detective for the Homeland Security Division of
Dekalb County,
OFFICER MARK GRAHAM MAPHET,
individually,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 18, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
This is David Gorman and Mark Maphet’s appeal from the district court’s
denial of their motion for partial summary judgment on qualified immunity
grounds.
I.
Many of the facts underlying this case are hotly contested, but at this stage in
the proceedings, we view the evidence in the light most favorable to the
non-moving party. See Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002).
The facts, viewed in the light most favorable to the plaintiffs, are as follows. In
December 2003, Caitlin Childs and Christopher Freeman volunteered to organize a
protest at the HoneyBaked Ham store on Buford Highway in Dekalb County,
Georgia. They had previously participated in yearly peaceful protests at the store,
and in 2003 they planned a short demonstration during which they would pass out
literature to give people information about vegetarian and vegan diets. Childs and
2
Freeman rode to the protest with Seth Chernyak in a car driven by Misty Brown.
They parked in the CVS Pharmacy parking lot across the street from the
HoneyBaked Ham store.
Approximately ten to twenty people participated in the protest, which lasted
about one and a half to two hours. The protestors stood on public property, and
they did not block any entrance or exit to the store. They held up signs, spoke to
customers who requested information, and handed out leaflets. A number of police
officers arrived on the scene, including some officers that were working off-duty
for HoneyBaked Ham. The officers, including Officer Maphet who was on duty
but also served as head of security for HoneyBaked Ham, ordered the protestors
not to pass out flyers or to talk to customers, even if the customers spoke to them
first. The protestors believed that they would be arrested if they violated these
orders, so they complied and stopped passing out flyers and interacting with
customers.
After the protest ended, Childs, Freeman, and Chernyak walked to the CVS
parking lot to check on a demonstrator who was being cited by a uniformed police
officer for jaywalking. When they got there, they noticed a man sitting in a car
who appeared to be taking pictures of them. The man turned out to be undercover
police officer David Gorman, but because he was dressed in civilian clothes and
3
was in an unmarked police car, the protestors were not aware he was an officer.
Out of a concern for their safety, Childs and Freeman walked behind Gorman’s car
and Childs wrote down its license plate number on a scrap piece of paper. They
then waited for the two protestors being cited for jaywalking to be free to leave, got
into Brown’s car with Chernyak and Brown, and left the CVS parking lot to have
lunch at a nearby restaurant.
Officer Gorman was concerned that Childs had written down his license
plate number because he drove his undercover vehicle home every day. As a
detective in the local anti-gang unit, Gorman did not want gang members to trace
the number back to his home where he lived with his wife and children. He
immediately got on his radio, stated that he was investigating a vehicle, and
requested that another officer come to his location. Officer Maphet was nearby
with another officer when he received a call over the police radio indicating that
Gorman was investigating a vehicle and needed assistance. As Maphet began to
maneuver his police motorcycle, he saw the vehicle that Gorman had described,
which was Brown’s car, exit the CVS parking lot and proceed down the road.
Maphet followed them out, and as they pulled into the restaurant parking lot,
Maphet was close behind. At their depositions, Maphet and Gorman testified that
Brown had not committed any traffic offenses while driving to the restaurant. The
4
sole reason the officers followed the vehicle was to retrieve the tag information
that Childs and Freeman had written down.
Brown was not allowed to park her car. Instead, Officers Maphet and
Gorman stopped the vehicle before Brown could turn into a parking space in the
restaurant’s lot. Maphet had turned on the blue emergency lights on his
motorcycle, which are the lights he usually used to stop a vehicle. Had Brown
tried to park in a parking space or drive away, her path would have been blocked
by the position of Maphet’s and Gorman’s vehicles.
The two officers left their vehicles, and Officer Maphet walked up to the
driver’s side of Brown’s car while Officer Gorman came to the passenger’s side.
Maphet asked Brown for her license and registration, and in response, Brown
asked Maphet why they were being pulled over. Maphet told Brown and the
passengers that they could either do this “the easy way” or be taken to jail. On the
passenger’s side of the vehicle, Gorman attempted to open the passenger door but
it was locked, so he ordered Childs and Freeman to unlock the door and get out of
the vehicle. Childs and Freeman complied with Gorman’s order.
Officer Gorman then ordered Childs to produce identification and demanded
the piece of paper upon which she had written his license plate number. Childs
gave Gorman her identification but refused to give him the paper with the tag
5
number. When Gorman realized that Childs was not going to give her the tag
information she had written down, he moved over to talk to Freeman. Gorman
asked Freeman to produce his identification and the tag information, and in
response Freeman asked Gorman for identification because Gorman had not
identified himself as an officer and was not in uniform. Instead of identifying
himself, Gorman again demanded that Freeman produce his identification, and
Freeman told him it was in his back pocket and that he would show Gorman his
identification “under protest.”
Officer Gorman instructed Freeman to get his identification, and as Freeman
was reaching around to his back pocket to retrieve it, Gorman grabbed his wrist
and said “Don’t move.” As Freeman tried to pull his wrist free, Gorman and
Officer Maphet grabbed him and put his hands behind his back. Gorman and
Maphet shoved Freeman onto the trunk of Brown’s car, pinning both arms and
holding his neck down with an elbow. Maphet then reached for his handcuffs and
put them on Freeman. After Freeman was handcuffed, Gorman and Maphet
instructed him to sit on the curb.
By this point, several other officers had arrived on the scene. One of the
officers taunted Childs by asking her if she had a “goat fetish” and, when she
questioned why Freeman was being arrested, the officer jokingly asked her when
6
she “got her law degree.” The officers then arrested both Freeman and Childs for
disorderly conduct and transported them to jail.
As a result of these events, Childs and Freeman filed a 42 U.S.C. § 1983
action against Officers Gorman and Maphet in federal district court, alleging
violations of their First and Fourth Amendment rights, as well as several state law
claims. With respect to the constitutional claims, the plaintiffs alleged that Maphet
violated their First Amendment right to free speech by instructing them not to
speak to customers during their protest, and that both defendants violated their
Fourth Amendment rights by unlawfully following them into the restaurant parking
lot and arresting them. The defendants moved for summary judgment on the
plaintiffs’ First and Fourth Amendment claims, arguing that they were entitled to
qualified immunity, and the district court denied the motion. The defendants
appealed, and they contend that the district court erred by: (1) improperly relying
on three declarations1 that the defendants argue were not based on personal
knowledge; (2) concluding that Officer Maphet was not entitled to qualified
immunity on the plaintiffs’ First Amendment claim; and (3) concluding that the
defendants were not entitled to qualified immunity on the plaintiffs’ Fourth
1
These sworn statements are labeled as declarations, and they were referred to as
declarations by the parties and the district court. However, we note that these statements
actually are affidavits.
7
Amendment claims.2
II.
The defendants first contend that in deciding their motion for summary
judgment, the district court improperly relied upon the declarations of three of the
protestors—Chernyak, Brown, and Elsa Spencer—because, according to the
defendants, the declarations were not based on personal knowledge as required by
Federal Rule of Civil Procedure 56(e). The defendants note that, although the
declarations state that during the protest Officer Maphet ordered the declarants not
to speak to the customers, there is no explanation about how the declarants
identified the officer as Maphet. Because the declarations lacked this factual basis,
the defendants argue that it was improper for the district court to rely upon them
for the proposition that Maphet was present at the protest and instructed the
protestors not to speak to customers.
“A district court’s denial of summary judgment based on qualified immunity
is reviewed de novo, construing all facts and making all reasonable inferences in
the light most favorable to the non-moving party.” Tinker v. Beasley, 429 F.3d
2
The defendants also contend that the district court erred by denying their motion to
strike three declarations submitted by the plaintiffs on the ground that the plaintiffs failed to
disclose them during discovery. However, that evidentiary ruling by the district court is outside
the scope of this interlocutory appeal, which focuses on whether, viewing the facts in the light
most favorable to the plaintiffs, “those facts show a violation of clearly established rights of
which a reasonable official in defendant’s circumstances would have known.” McDaniel v.
Woodard, 886 F.2d 311, 313 (11th Cir. 1989).
8
1324, 1326 (11th Cir. 2005). “Generally, when there are [disputed] issues of fact .
. . qualified immunity must be denied because the court, at this stage of the
proceedings, must view the facts most favorable to the plaintiff.” Travers v. Jones,
323 F.3d 1294, 1296 (11th Cir. 2003). However, Fed. R. Civ. P. 56(e)’s “personal
knowledge requirement prevents statements in affidavits that are based, in part,
‘upon information and belief’—instead of only knowledge—from raising genuine
issues of fact sufficient to defeat summary judgment.” Pace v. Capobianco, 283
F.3d 1275, 1278 (11th Cir. 2002). Accordingly, “an affidavit stating only that the
affiant ‘believes’ a certain fact exists is insufficient to defeat summary judgment by
creating a genuine issue of fact about the existence of that certain fact.” Id. at
1278–79. In Pace, this Court concluded that the district court erred by deciding
that a statement in a witness’ affidavit raised a genuine issue of material fact about
whether the plaintiff’s hands were raised where the affiant stated that he “observed
motion in the red car which I believe was [the plaintiff] raising his hands toward
the roof of his car in an attempt to surrender.” Id. at 1279 (emphasis added).
The declarations of Brown and Chernyak each state:
At least two law enforcement officers were present at all times during
the [HoneyBaked Ham] protest. The officers, including Officer
Maphet, first ordered me not to pass out flyers to customers and
passers by. They then instructed me not to speak with any customers,
even if they spoke to us first. I understood that if I failed to obey
these orders, I would be subject to arrest.
9
Spencer stated in her declaration that an officer, “which may have been Officer
Maphet,” instructed her not to speak to any of the customers. Each declaration
contained introductory language stating that the information provided was based
on the declarant’s personal knowledge.
Like the affidavit in Pace, where the witness stated that he believed a certain
fact, the statement in Spencer’s declaration that the officer who instructed her not
to speak to customers may have been Maphet is not sufficient to meet Rule 56(e)’s
personal knowledge requirement with respect to Maphet’s identity. See id. at
1278–79. However, the defendants do not deny that Brown and Chernyak were
present at the HoneyBaken Ham protest. In addition, the statements in the Brown
and Chernyak declarations clearly identified Maphet as one of the officers that
instructed them not to speak to the customers, and their declarations did not
contain the type of “believe” language that we concluded was insufficient to meet
Rule 56(e)’s personal knowledge requirement in Pace. Id. Accordingly, the
district court did not err by relying on the Brown and Chernyak declarations to
establish, viewed in the light most favorable to the plaintiffs, the fact that Maphet
was present at the protest and instructed the protestors not to speak to the
customers.
10
III.
The defendants next contend that the district court erred by concluding that
Officer Maphet was not entitled to qualified immunity on the plaintiffs’ First
Amendment claim.3 The defendants argue that, even if the Brown, Chernyak, and
Spencer declarations are considered, they do not show that the specific plaintiffs in
this case—Childs and Freeman—were instructed by Maphet not to talk to the
customers. According to the defendants, proving that Maphet may have restrained
the speech of third parties is not enough to make out a First Amendment claim. In
addition, the defendants argue that Maphet did not limit the content of the
plaintiffs’ speech, but merely imposed a reasonable time and place restriction that
did not violate the First Amendment. Finally, the defendants argue that, even if
Maphet did violate the plaintiffs’ First Amendment rights, he is entitled to
qualified immunity because the right was not clearly established at the time of the
violation.4
3
The plaintiffs’ First Amendment claim is directed toward Officer Maphet and does not
contain any allegations against Officer Gorman.
4
For the first time on appeal, the defendants also contend that the plaintiffs have not
shown that they were on public property when Officer Maphet instructed them not to speak to
the customers. However, the defendants have waived this argument because they admitted
before the district court that the protestors were on the sidewalk, and in their brief to this Court,
they refer to sidewalks as “public property.” In addition, as we have repeatedly held, “an issue
not raised in the district court and raised for the first time in an appeal will not be considered by
this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(quotation marks and citations omitted).
11
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004)
(quotation marks and citations omitted). “An official asserting the affirmative
defense of qualified immunity must initially establish that he was acting within his
discretionary authority. If the official is acting within the scope of his
discretionary authority . . . the burden shifts to the plaintiff to show that the official
is not entitled to qualified immunity.” Skop v. City of Atlanta, 485 F.3d 1130,
1136–37 (11th Cir. 2007). This involves a two step process. First, the plaintiff
must establish that the defendant’s conduct violated a statutory or constitutional
right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). Next,
the plaintiff must show that the right was “clearly established.” Id. It is
undisputed that the defendants were acting within the scope of their discretionary
authority. What the parties disagree about is whether the defendants violated the
plaintiffs’ clearly established First Amendment rights.
The First Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. Amend. I. As the Supreme Court
has stated, “[t]here is no doubt that as a general matter peaceful picketing and
12
leafletting are expressive activities involving ‘speech’ protected by the First
Amendment.” United States v. Grace, 461 U.S. 171, 176, 103 S. Ct. 1702, 1706
(1983).
It is also true that “public places” historically associated with the free
exercise of expressive activities, such as streets, sidewalks, and parks,
are considered, without more, to be “public forums.” In such places,
the government’s ability to permissibly restrict expressive conduct is
very limited: the government may enforce reasonable time, place, and
manner regulations as long as the restrictions “are content-neutral, are
narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication.” Additional
restrictions such as an absolute prohibition on a particular type of
expression will be upheld only if narrowly drawn to accomplish a
compelling governmental interest.
Id. (internal citations omitted).
“It has long been established that these First Amendment freedoms are
protected by the Fourteenth Amendment from invasion by the States.” Edwards v.
South Carolina, 372 U.S. 229, 235, 83 S. Ct. 680, 683 (1963). As the Supreme
Court stated sixty-five years ago in Jamison v. Texas, 318 U.S. 413, 63 S. Ct. 669
(1943):
Of course, states may provide the control of travel on their streets in
order to insure the safety and convenience of the traveling public.
They may punish conduct on the streets which is in violation of a
valid law. But one who is rightfully on a street which the state has left
open to the public carries with him there as elsewhere the
constitutional right to express his views in an orderly fashion. This
right extends to the communication of ideas by handbills and literature
as well as by the spoken word.
13
Id. at 416, 63 S. Ct. at 671–72.
Childs and Freeman’s “peaceful picketing and leafletting” on the public
sidewalk near the HoneyBaked Ham store was constitutionally protected speech.
See Grace, 461 U.S. at 176, 103 S. Ct. at 1706. The Brown and Chernyak
declarations, considered together with the deposition testimony of Childs and
Freeman, establish that Officer Maphet was present at the protest and instructed the
protestors not to speak to the customers, even if the customers spoke to them first.
In addition, the defendants have not presented any evidence that the protestors
were violating any ordinances, such as those prohibiting trespassing or littering,
which would have permitted Officer Maphet to restrict their speech. Accordingly,
Officer Maphet’s suppression of the protestor’s speech violated Childs and
Freeman’s First Amendment “right to express [their] views in an orderly fashion.”
See Jamison, 318 U.S. at 416, 63 S. Ct. at 671–72.
Moreover, the defendants’ argument that this right was not clearly
established is without merit. Decisions such as Jamison and Grace, among many
others, have put police officers on notice for decades that protestors present on
public property have a First Amendment right to peacefully express their views, in
the absence of narrowly tailored ordinances restricting the time, place, or manner
of the speech. Thus, this is one of those cases where “a general constitutional rule
14
already identified in the decisional law [applies] with obvious clarity to the specific
conduct in question.” See United States v. Lanier, 520 U.S. 259, 271, 117 S. Ct.
1219, 1227 (1997). The district court correctly concluded that the defendants were
not entitled to qualified immunity on the plaintiffs’ First Amendment claim.
IV.
The defendants also contend that the district court erred by concluding that
they were not entitled to qualified immunity on the plaintiffs’ Fourth Amendment
claims. The defendants argue that the district court erred by concluding that they
seized Childs and Freeman, within the meaning of the Fourth Amendment, by
following them into the restaurant parking lot, asking for their identification, and
requesting that they return the piece of paper containing Officer Gorman’s license
plate number. In addition, the defendants argue that they did not violate the
plaintiffs’ Fourth Amendment rights by arresting them for disorderly conduct
because they had arguable probable cause for the arrests. Finally, the defendants
argue that, even if they violated the plaintiffs’ Fourth Amendment rights, they are
still entitled to qualified immunity on the ground that those rights were not clearly
established.
The Fourth Amendment provides that “the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
15
seizures, shall not be violated.” U.S. Const. Amend. IV. “In construing the
demands of the Fourth Amendment the Supreme Court has recognized three
distinct types of police-citizen encounters. First, not every encounter between law
enforcement officers and a citizen constitutes a seizure within the meaning of the
Fourth Amendment.” United States v. Thompson, 712 F.2d 1356, 1359 (11th Cir.
1983). “Some such contact, such as the mere approach and questioning of a
willing person in a public place, involves no coercion and detention and hence is
outside the domain of the Fourth Amendment.” Id. “Second, ever since Terry v.
Ohio 5 the Court has recognized a limited class of cases where the police-citizen
encounter qualified as a seizure within the Fourth Amendment but may be justified
by less than probable cause. Terry-type investigative stops satisfy the Fourth
Amendment if the officer has an objective, reasonable suspicion of unlawful
activity.” Id. “Third, some police-citizen encounters, such as a full-scale arrest,
must be supported by probable cause.” Id.
A.
With respect to the plaintiffs’ unlawful seizure claim arising out of their
interaction with Officers Gorman and Maphet in the restaurant parking lot, the
defendants admitted in their depositions that, at the time they approached Brown’s
5
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
16
car, they did not have reasonable suspicion to believe that the plaintiffs or the other
occupants of Brown’s car had committed or were about to commit any crime.
According to Gorman, his purpose in speaking to the plaintiffs was to get back the
piece of paper upon which Childs had recorded his license plate number. Thus, the
main issue is whether the defendants’ interactions with Childs and Freeman in the
parking lot rose to the level of an investigative stop, which is a seizure under the
Fourth Amendment. As the Supreme Court has explained:
[A] person has been “seized” within the meaning of the Fourth
Amendment only if, in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he was not
free to leave. Examples of circumstances that might indicate a
seizure, even where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the
officer’s request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). In
Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006), this Court gave several more
examples of actions by a police officer that “would appear coercive to a reasonable
person,” including when an officer activates his service vehicle’s emergency lights.
See id. at 1257.
Viewing the facts in the light most favorable to the plaintiffs, we conclude
that the defendants’ interactions with the plaintiffs in this case rose to the level of a
17
seizure for Fourth Amendment purposes. During the one-hour detention: (1)
Officer Maphet engaged his vehicle’s blue emergency lights as he pulled up behind
Brown’s vehicle; (2) the officers stopped Brown’s vehicle in the middle of a
restaurant parking lot, blocking Brown from either pulling into a parking space or
leaving the lot; (3) the officers ordered the vehicle’s occupants to produce
identification and threatened to arrest them if they did not comply; (4) Officer
Gorman ordered the plaintiffs to exit the vehicle and demanded that they return the
piece of paper containing his license plate number; and (5) Officer Gorman
grabbed Freeman’s wrist when he tried to comply with the officers’ requests for
identification. There was a coercive show of authority by the officers under which
“a reasonable person would have believed that he was not free to leave.” See
Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877; see also Miller, 458 F.3d at 1257.
Accordingly, the defendants’ detention of the plaintiffs was a seizure within the
meaning of the Fourth Amendment. See Mendenhall, 446 U.S. at 554, 100 S. Ct.
at 1877.
Because the defendants admittedly did not have reasonable suspicion that
the plaintiffs or the other occupants of the car had engaged in any criminal activity,
the seizure violated the plaintiffs’ Fourth Amendment rights. See Thompson, 712
F.2d at 1359. It has been clearly established since the Supreme Court decided
18
Terry that an investigative stop—a seizure for Fourth Amendment
purposes—performed without reasonable suspicion violates the Fourth
Amendment. See, e.g., Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877; Miller,
458 F.3d at 1257; Thompson, 712 F.2d at 1359. That general constitutional rule
applies “with obvious clarity” to the defendants’ conduct here. See Lanier, 520
U.S. at 271, 117 S. Ct. at 1227. Accordingly, the district court correctly denied
the defendants’ motion for summary judgment on qualified immunity grounds on
the plaintiffs’ unlawful seizure claim.
B.
Regarding the plaintiffs’ false arrest claim, the defendants contend that they
had probable cause—or at least arguable probable cause—to arrest the plaintiffs
for disorderly conduct. In addition, the defendants argue that Freeman struggled
with Officer Gorman, and both plaintiffs refused to obey the officers’ orders to
calm down and to stop disturbing the peace.
“Plainly, an arrest without probable cause violates the right to be free from
an unreasonable search under the Fourth Amendment.” Durruthy v. Pastor, 351
F.3d 1080, 1087 (11th Cir. 2003) (citation omitted). However, “[i]f an officer has
probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth Amendment,
19
arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct.
1536, 1557 (2001).
In order for probable cause to exist, “an arrest [must] be objectively
reasonable under the totality of the circumstances.” 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.”
Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (citations omitted,
alteration in original).
However, even if an officer lacked probable cause for the arrest, he will still
be entitled to qualified immunity if he had “arguable probable cause.” Id.
“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.” Lee v. Ferraro, 284 F.3d 1188,
1195 (11th Cir. 2002) (alteration in original, quotation marks omitted). In deciding
whether arguable probable cause exists, courts look at whether the officer’s actions
were “objectively reasonable . . . regardless of the officer’s underlying intent or
motivation.” Id. (alteration in original, citation omitted).
In Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995), this Court determined
that the defendant police officer, Officer Mills, was not entitled to qualified
20
immunity on the plaintiff’s false arrest claim where the officer arrested the plaintiff
for refusing to turn over film containing pictures the plaintiff had publicly taken of
several undercover officers. Id. at 157. In Williamson, the plaintiff, a veteran,
decided to take pictures at a public festival for other veterans who were not able to
attend. Id. at 156. Mills noticed that the plaintiff was taking pictures of some of
the undercover officers, which concerned him because one of the officers had an
outstanding death threat against her in connection with her undercover
investigation of biker gangs. Id. Mills was concerned that the pictures could be
sold to an organized crime group, which could endanger the undercover officers’
lives. Id.
As the plaintiff and other veterans went to the parking lot to get their parade
banner, Officer Mills stopped the plaintiff, flashed his badge, and demanded that
the plaintiff turn over the film from his camera. Id. When the plaintiff refused,
Mills repeated his demand several times, and when the plaintiff tried to leave,
Mills grabbed him, pushed him against a van, and handcuffed him. Id. Mills then
took the plaintiff to his police van, where he continued to demand the plaintiff’s
film. Id. At one point, Mills tried to take the camera by force, and the plaintiff
protested. Id. at 156–57. Finally, another officer got the plaintiff to turn over the
film by informing him that the camera would be taken away when he was taken to
21
jail anyway. Id. at 157. The plaintiff then retrieved the film from the camera and
gave it to Mills, who gave the plaintiff five dollars to reimburse him for the cost of
the film. Id.
The plaintiff sued Officer Mills, alleging a claim for false arrest, and this
Court concluded that Mills was not entitled to qualified immunity on that claim.
Id. According to this Court, “[a]n officer in Mills’s shoes could not have
reasonably concluded that he had probable cause to arrest [the plaintiff].” Id. at
158. Mills did have reason to believe that criminal activity may have been
underway because of the death threat against the officer and the potential for the
photographs to be sold to organized crime groups. Id. However, “[w]hat was
fatally missing from Mills’s knowledge . . . was a link between the suspected
criminal activity and [the plaintiff].” Id. “The mere fact that [the plaintiff’s]
photographs could have been used for unlawful activity . . . is not enough to
establish even arguable probable cause for [the plaintiff’s] arrest unless Mills had
some datum to connect [the plaintiff] to the death threats or other crime.” Id.
The facts in this case, where the defendants admittedly detained the plaintiffs
for writing down Officer Gorman’s license plate number in a public parking lot,
are materially indistinguishable from Williamson. In this case, as in Williamson,
the plaintiffs legally obtained information about police officers in a public place,
22
and the defendant officers sought to obtain the information. See id. at 156. In this
case, as in Williamson, when the plaintiffs refused to turn over the information, the
defendant officers insisted that they turn it over and arrested the plaintiffs after
they repeatedly refused to do so. See id. at 156–57. In this case, as in Williamson,
the defendant officers were concerned that criminal activity was underway because
Officer Gorman and his family could have been endangered if gang members he
had been investigating undercover got access to the license plate number and
realized that Gorman was an officer. See id. at 158. And in this case, as in
Williamson, what the officer lacked “was a link between the suspected criminal
activity and” the plaintiffs. Id. It follows that in this case, as in Williamson, the
defendants lacked arguable probable cause to arrest the plaintiffs. See id.
The fact that Childs and Freeman may have verbally protested the officers’
actions during the detention does not change this result. In Williamson, this Court
stated that during his interaction with Officer Mills, the plaintiff refused to turn
over the film, tried to leave, and “protested” when Mills tried to take the camera by
force. See id. at 156–57. However, this Court still concluded that Mills lacked
even arguable probable cause to arrest the plaintiff. Id. at 158. The same is true
here. The Williamson case put the officers on notice that their conduct violated the
Fourth Amendment. See id. Therefore, the district court correctly concluded that
23
the defendants were not entitled to qualified immunity on the plaintiffs’ false arrest
claim.
AFFIRMED.
24