[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 1, 2007
No. 06-11399
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00150 CV-BAE-6
ISAIAH JORDAN,
DOROTHY JORDAN,
Plaintiffs-Appellees,
versus
TOMMY MOSLEY, individually and in his
official capacity as an officer of the
Screven County Sheriff’s Department,
Defendant-Appellant,
MIKE KILE, individually and in his
official capacity as Sheriff of the
Screven County Sheriff’s Department,
Defendant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________________________
(June 1, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT and GIBSON,* Circuit Judges.
EDMONDSON, Chief Judge:
Isaiah Jordan (“Plaintiff”) filed suit against his niece’s husband, Tommy
Mosley (“Deputy Mosley”), who is the chief jailer for Screven County and an
officer in the Sheriff’s Department. Plaintiff alleged -- among other things --
violations of the Fourth Amendment and of state laws prohibiting false arrest and
malicious prosecution. Deputy Mosley moved for summary judgment on all
claims, arguing in part that he was entitled to qualified immunity on the Fourth
Amendment claim and official immunity on the state law claims. The district
court granted Deputy Mosley’s motion in part, but denied his motion on the
qualified immunity and official immunity issues. Deputy Mosley appeals. We
reverse the denial of summary judgment on the Fourth Amendment claim, but we
affirm the denial of summary judgment on the state law claims.
*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
2
I. Background
Because this appeal comes from a summary judgment, we must view the
record in the light most favorable to Plaintiff. See Priester v. City of Riviera
Beach, Fla., 208 F.3d 919, 925 n. 3 (11th Cir. 2000). In that light, these assertions
are today’s facts.1
In July 2002, Plaintiff and his wife visited their niece Diane Mosley at the
Mosleys’ home in Screven County. The Mosleys had been digging a well on their
property with the help of a contractor, who kept a front-end loader -- a backhoe --
on the property. Before the visit, Diane had asked Plaintiff -- who is a heavy
equipment operator -- if he would clean up the area and dig a hole for a fish pond.
According to Plaintiff, Diane Mosley renewed the request during his visit.
Plaintiff eventually went outside, operated the backhoe, caused a flat tire, and
broke the hydraulic cylinder. Diane called Deputy Mosley -- who was at work --
to tell him about the damage, and Deputy Mosley told her to “tell [Plaintiff] to get
off the equipment.” Plaintiff did get off the backhoe and returned it to the place
where he found it.
1
We note that the “facts” set out in this opinion -- the “facts” that we must assume for the
purposes of this appeal -- may turn out to be different than the actual facts of this case.
3
The next day, the contractor discovered the damage to his backhoe and
discussed the matter with Deputy Mosley. For assistance, the contractor called
Sheriff Kile, who advised the contractor to submit a bill for Deputy Mosley.
Deputy Mosley received the bill and spoke to Plaintiff about payment. Plaintiff
offered to pay half, but Deputy Mosley was insistent on the payment of the entire
amount. Plaintiff paid Deputy Mosley nothing, despite Mosley’s requests.
Deputy Mosley later told his colleague, Deputy Crockett, that Plaintiff used
the contractor’s backhoe, broke it, and refused to pay for the damage. Mosley
never mentioned that his wife Diane may have requested Plaintiff to use the
backhoe. Deputy Mosley then pressed Deputy Crockett to take out a warrant for
Plaintiff’s arrest. Deputy Crockett swore out an affidavit, alleging a violation of
O.C.G.A. § 16-7-23(a)(1): criminal damage to property in the second degree.2 The
affidavit said, without elaboration, that “Isaiah Jordan did intentionally damage
the property of Johnny Sheppard . . . [in an amount exceeding] $500.” Based on
Deputy Crockett’s affidavit, a magistrate judge issued the arrest warrant.
In seeking the warrant, Deputy Crockett relied entirely on Deputy Mosley’s
story, did not further investigate the incident, and did not learn the details until
2
A person commits the offense of criminal damage to property in the second degree when he
“[i]ntentionally damages any property of another person without his consent and the damage thereto
exceeds $500.00.” O.C.G.A. § 16-7-23(a)(1).
4
much later. Deputy Crockett acknowledged in a deposition that Plaintiff “just
wouldn’t cooperate [in paying back the money] and a warrant was issued for his
arrest to get him back down here [to Screven County] to talk to him.”
Plaintiff was arrested pursuant to the warrant in Richmond County by law
enforcement officers of that county. Then Plaintiff was transferred to the Screven
County jail, where Deputy Mosley is the chief jailer. Plaintiff’s wife arrived to
post bond; and Deputy Mosley told her that the charges would be dropped if she
paid $1,355.06, which included restitution for damages to the backhoe and other
fees. She paid that amount; Plaintiff was released; and the charges were dropped.
Plaintiff sued Deputy Mosley under 42 U.S.C. § 1983, alleging violations of
federal and state law rights. Deputy Mosley moved for summary judgment on all
claims, and his motion was granted in part and denied in part.
Deputy Mosley has appealed the district court’s judgment. His appeal only
concerns two issues: (1) whether the district court erred in denying his qualified
immunity defense against Plaintiff’s Fourth Amendment claim; and (2) whether
the district court erred in denying his official immunity defense against Plaintiff’s
state law claims of false arrest and malicious prosecution.3
3
Deputy Mosley attempts to argue on appeal that he is entitled to Eleventh Amendment immunity
from the claims against him in his official capacity as deputy sheriff. He did not raise this defense
below, and the district court did not decide the question. Although we have decided that a sheriff
5
II. Discussion
A. Fourth Amendment
We first note the obvious fact that Deputy Mosley neither arrested Plaintiff
nor obtained the pertinent arrest warrant. In this Circuit, a non-arresting officer
who instigates or causes an unlawful arrest can still be liable under the Fourth
Amendment. Rodriguez v. Ritchey, 539 F.2d 394, 400 (5th Cir. 1976).4
We now turn to Deputy Mosley’s argument that he -- in his personal
capacity -- is entitled to qualified immunity on Plaintiff’s Fourth Amendment
claim. “Qualified immunity protects government officials performing
discretionary functions from civil trials [ ] and from liability if their conduct
violates no clearly established statutory or constitutional rights of which a
was entitled to Eleventh Amendment immunity with respect to certain functions, see Manders v. Lee,
338 F.3d 1304, 1328-29 (11th Cir. 2003), we have not yet decided whether the Eleventh Amendment
could provide immunity to a sheriff’s deputy. We make no attempt to decide the issue today. See
Bouchard Transp. Co. v. Florida Dept. of Envtl. Protection, 91 F.3d 1445, 1448 (11th Cir. 1996)
(declining to decide the sovereign immunity question that the district court never addressed); see also
Lytle v. Griffith, 240 F.3d 404, 410 (4th Cir. 2001) (declining to decide the sovereign immunity
question because it was best first resolved by the district court); Roberts v. College of the Desert, 870
F.2d 1411, 1415 (9th Cir.1988) (same).
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered before 1 October
1981.
6
reasonable person would have known.” Purcell ex rel. Estate of Morgan v.
Toombs County, 400 F.3d 1313, 1319 (11th Cir. 2005) (alteration in original)
(quoting Lassiter v. Ala. A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th
Cir.1994) (en banc)). The immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” Id. (quoting McCoy v. Webster, 47 F.3d
404, 407 (11th Cir. 1995)).
Qualified immunity ordinarily involves a two-part inquiry. First, we decide
whether the facts establish a violation of federal law. See Draper v. Reynolds, 369
F.3d 1270, 1274-75 (11th Cir. 2004). Second, if we decide that a violation of
federal law has occurred, we must determine whether the rights violated were
already clearly established when the defendant acted. See id. at 1275.
Thus, we begin by deciding whether the facts -- which we construe
favorably to Plaintiff -- show a Fourth Amendment violation. If probable cause
existed for Plaintiff’s arrest, the Fourth Amendment was not violated. See Wood
v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003).
Probable cause exists when “the facts and circumstances within the officers’
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.” Miller v.
7
Harget, 458 F.3d 1251, 1259 (11th Cir. 2006) (quoting Rankin v. Evans, 133 F.3d
1425, 1435 (11th Cir. 1998)).
In the light most favorable to Plaintiff, these facts are the material facts
Deputy Mosley knew: (1) at some time, Diane Mosley asked Plaintiff to use the
backhoe and to clean the area behind the house; (2) Plaintiff used the contractor’s
backhoe without the consent of the contractor-owner; (3) Plaintiff caused damage
to the backhoe in excess of $500; and (4) Plaintiff refused to pay for the damage.
Based on those facts, we conclude that an objectively reasonable officer in
Mosley’s place would have cause to believe that Plaintiff intentionally caused
damage to the backhoe in excess of $500 without the consent of the owner,
thereby committing criminal damage to property in the second degree under
O.C.G.A. § 16-7-23(a)(1). In other words, probable cause existed for the arrest.
Plaintiff, however, contends that Deputy Mosley lacked probable cause to
arrest Plaintiff because Deputy Mosley had no reason to believe that Plaintiff
“intentionally” damaged the backhoe.
Of course, no police officer can truly know another person’s subjective
intent. But that Plaintiff did, in fact, damage the backhoe is undisputed. And that
fact provides some evidence to believe that Plaintiff intended to damage the
backhoe. See United States v. Martinez, 96 F.3d 473, 478 n.7 (11th Cir. 1996) (“
8
‘[A]cts indicate the intention’ is an old maxim”). Beyond that, an officer would
need no further evidence of Plaintiff’s intent to cause Plaintiff’s arrest. No officer
has a duty to prove every element of a crime before making an arrest. Scarbrough
v. Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001). “Police officers are not
expected to be lawyers or prosecutors.” Id. at 1303 n.8.
The crime for which Plaintiff was arrested is a general intent crime. A
person commits the offense defined in O.C.G.A. § 16-7-23(a)(1) when he
“intentionally damages any property of another person without his consent and the
damage thereto exceeds $500.00.” The only requisite intent of this crime is a
general intent to do the act: damaging another person’s property. Cf. Strickland v.
State, 479 S.E.2d 125, 128 (Ga. Ct. App. 1996) (writing that “sexual battery
requires only general intent” when that crime was defined as “intentionally
mak[ing] physical contact with the intimate parts of the body of another person
without the consent of that person”).5
Plaintiff was arrested for a general intent crime, and Deputy Mosley -- or, to
be more technically correct, an objectively reasonable police officer -- needed no
specific evidence of intent to make the arrest. This conclusion is consistent with
other courts that have addressed similar issues in the context of probable cause.
5
We are not addressing specific intent crimes today.
9
The Ninth Circuit only requires probable cause on the element of intent when the
crime is a specific intent offense. Compare Gasho v. United States, 39 F.3d 1420,
1428 (9th Cir. 1994) (“[W]hen specific intent is a required element of the offense,
the arresting officer must have probable cause for that element in order to
reasonably believe that a crime has occurred.”) with United States v. O'Reilly, No.
96-10099, 1997 WL 306425, *1 (9th Cir. June 5, 1997) (unpublished) (“If this is a
crime of general intent, the officers need not have probable cause for this element
[of intent].”). And the Second Circuit does not require probable cause to be
established by direct evidence of a suspect's state of mind when it can be inferred
from circumstantial or indirect evidence. See Krause v. Bennett, 887 F.2d 362,
371 (2d Cir. 1989) (deciding that evidence supported a sufficient inference of
knowledge for probable cause when the crime required "knowing possession of
stolen property"); see also McGuire v. City of New York, 142 Fed. Appx. 1, 3 (2d
Cir. 2005) (unpublished) (“[W]hen an officer has evidence that a defendant has
engaged in conduct proscribed by law -- whether transporting a quantity of drugs,
possessing a stolen item, or driving with a suspended license -- he has probable
cause to arrest the person even without specific evidence on the elements of
knowledge and intent that will have to be proved to secure a conviction at trial.”).
10
And our own Circuit has concluded that, even for a criminal statute that
requires proof of an intent to defraud for a conviction, an arresting officer does not
need evidence of the intent for probable cause to arrest to exist. See United States
v. Everett, 719 F.2d 1119, 1120 (11th Cir. 1983) (passing or possessing
counterfeit money).6
Thus, when a police officer arrests a suspect for committing a general intent
crime such as the one defined in O.C.G.A. § 16-7-23(a)(1), the officer needs no
specific evidence of the suspect’s intent. All that is required is probable cause to
believe that the suspect did the prohibited acts. Because Deputy Mosley knew
Plaintiff damaged the backhoe, we conclude that the arrest was lawful -- for
Fourth Amendment purposes -- even if Deputy Mosley had no specific evidence
on whether Plaintiff’s act of damage was intentional.
Plaintiff also contends that he could not have committed the statutory
offense because Diane Mosley consented to Plaintiff’s use of the backhoe and she
6
Although intent must be proved for a conviction in Georgia, a person can be convicted for a
general intent offense without direct evidence of intent because “general intent may be inferred from
the conduct of the accused.” Prine v. State, 515 S.E. 2d 425, 427 (Ga. Ct. App. 1999); Cline v. State,
405 S.E. 2d 524, 525 (Ga. Ct. App.1991) (noting that criminal intent may be inferred from
circumstances connected with the accused’s crime); COUNCIL OF SUPERIOR COURT JUDGES OF
GEORGIA , 2 GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS: CRIMINAL CASES 1.41.10 (2006)
(“[Intent] may be inferred from the proven circumstances or by acts and conduct, or it may be, in [the
jury's] discretion, inferred when it is the natural and necessary consequence of the act.”). The
prosecution can indirectly prove the requisite “intent” by proving that the accused did the pertinent
act. Prine, 515 S.E. 2d at 427.
11
had apparent authority to do so. Thus, Plaintiff argues, Deputy Mosley could not
have reasonably believed Plaintiff violated the statute.
The Mosleys did not own the backhoe, and Plaintiff does not contend he
thought they did. Assuming arguendo that Deputy Mosley knew his wife asked
Plaintiff to use the backhoe, we are not convinced -- and we need not decide -- that
what must be seen as some kind of apparent-authority defense would have
provided Plaintiff with a complete defense to the pertinent crime under Georgia
law. Under the law of probable cause, no police officer had a duty to resolve this
legal question before seeking out Plaintiff’s arrest. See Pickens v. Hollowell, 59
F.3d 1203, 1207 (11th Cir. 1995) (deciding that police officers have no
responsibility to determine the viability of a statute of limitations defense when
executing a valid arrest warrant). We conclude that an objectively reasonable
officer in Deputy Mosley's position could have believed that Plaintiff violated the
pertinent statute, even if Diane Mosley consented to Plaintiff's use of the
contractor's backhoe.7
7
Plaintiff also suggests that probable cause is undermined by Deputy Mosley’s improper motive
of using the criminal process to collect a civil debt. But Fourth Amendment probable cause is a
purely objective determination; the specific officer's subjective intent cannot be considered. Craig
v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997).
12
Therefore, the district court erred in denying summary judgment in favor of
Deputy Mosley on Plaintiff’s Fourth Amendment claim.
B. State Law Claims
Deputy Mosley also argues that he is entitled to official immunity on
Plaintiff’s state law claims of false arrest and malicious prosecution. The Georgia
Constitution allows state employees to be sued for performing their discretionary
functions8 only “if they act with actual malice or with actual intent to cause injury
in the performance of their official functions.” GA. CONST. art. I, § II, par. IX(d);
Gilbert v. Richardson, 452 S.E.2d 476, 483 (Ga. 1994).
Unlike qualified immunity under federal law, we must inquire into Deputy
Mosley’s subjective intent to determine whether he has official immunity under
Georgia law. We agree with the district court that summary judgment was
improper on grounds of official immunity because Plaintiff has raised a genuine
8
That Deputy Mosley was performing a discretionary function when he encouraged Deputy
Crockett to obtain a warrant for Plaintiff’s arrest is undisputed. See Todd v. Kelly, 535 S.E. 2d 540,
542 (Ga. Ct. App. 2000).
13
issue of material fact about Deputy Mosley’s intent in pursuing Plaintiff’s arrest
warrant.9
Plaintiff has offered evidence tending to show that Deputy Mosley caused
Plaintiff to be arrested so that Mosley could collect a civil debt. Plaintiff testified
that Deputy Mosley first demanded payment for the damage to “teach [Plaintiff] a
lesson.” Deputy Mosley testified that the warrant was issued because Plaintiff
refused to pay for the damage to the backhoe. Deputy Crockett said the warrant
was issued to get Plaintiff down to Screven County to talk about payment.
Construing such evidence in the light most favorable to Plaintiff, we think a
reasonable fact finder could find that Deputy Mosley acted with the deliberate
intent of causing Plaintiff to be arrested to collect a civil debt: an intent to do a
wrongful act -- to imprison Plaintiff unlawfully for debt -- amounting to actual
malice. See GA. CONST. art. 1, § 1, par. XXIII (prohibiting imprisonment for
debt); O.C.G.A. § 51-7-20 (defining the tort of false imprisonment as the
“unlawful detention of the person of another, for any length of time, whereby such
person is deprived of his personal liberty”); Adams v. Hazelwood, 520 S.E. 2d
9
We do not decide whether the complaint states a claim for these alleged state torts. Cf. Anderson
v. Cobb, 573 S.E. 2d 417, 419 (Ga. Ct. App. 2002) (noting that inquiry into whether official acted
with actual malice is distinct from inquiry of whether official committed alleged torts).
14
896, 898 (Ga. 1999) (writing that “actual malice” in the context of official
immunity requires “a deliberate intention to do a wrongful act”).
Accordingly, the district court properly denied summary judgment on
Plaintiff’s remaining state law claims on grounds of official immunity.
III. Conclusion
On this record, we conclude that Deputy Mosley is entitled to summary
judgment on Plaintiff’s Fourth Amendment claim; the denial of summary
judgment to Mosley on this claim is reversed. But Deputy Mosley is unentitled to
official immunity on Plaintiff’s state law claims. Therefore, the district court’s
decision is reversed in part and affirmed in part; and the case is remanded.
REVERSED in part, AFFIRMED in part, and REMANDED.
15