FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 28, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13640

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D. C. Docket No. 05-00131-CV-1-WS-M

WILLIAM JOSEPH PHILLIPS, 

Plaintiff-Appellee, 

versus 

OFFICER B.E. IRVIN, 

Defendant-Appellant, 

W. M. (MIKE) COPPAGE, 

individually and in his official capacity as the 

Director, 

Defendant. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(March 28, 2007)
Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting *

by designation.

Under the collateral order doctrine, we have jurisdiction to review the denial of state- 1

agent immunity when the defendant appeals “both the denial of [state-agent] immunity and the

denial of qualified immunity from the same procedural posture and under the identical

assumption regarding the validity of the district court’s summary-judgment facts.” Taylor v.

Adams, 221 F.3d 1254, 1260 n.9 (11th Cir. 2000). 

2

Before HULL and MARCUS, Circuit Judges, and BARZILAY, Judge. *

PER CURIAM:

This case arises out of defendant-appellant Officer B.E. Irvin’s March 2003

arrest of plaintiff-appellee William Joseph Phillips. Irvin interlocutorily appeals

from the district court’s summary judgment order, which granted in part and

denied in part Irvin’s motion for summary judgment. The district court granted

Irvin qualified immunity with regard to several of Phillips’s 42 U.S.C. § 1983

claims and dismissed others of Phillips’s claims as legally insufficient, but denied

Irvin qualified immunity as to Phillips’s excessive force claim and Phillips’s First

Amendment retaliation claim. The district court also denied Irvin state-agent

immunity as to Phillips’s state law claims arising out of Irvin’s use of force. 

1

After review and oral argument, we affirm the district court’s denial of

summary judgment as to Phillips’s excessive force claim and as to Phillips’s state

law claims arising out of Irvin’s use of force. We find no reversible error in the

district court’s well-reasoned analysis on those issues.
3

However, we conclude that the district court erred in denying Irvin qualified

immunity on Phillips’s First Amendment retaliation claim. The district court

mistakenly concluded that Irvin needed to establish actual probable cause for

Phillips’s arrest. Under our precedent, Irvin only needed to establish arguable

probable cause, which Irvin did. See Redd v. City of Enterprise, 140 F.3d 1378,

1383 (11th Cir. 1998) (stating that “[b]ecause we hold that the officers had

arguable probable cause to arrest . . . for disorderly conduct, we must hold that the

officers are also entitled to qualified immunity from the plaintiffs’ First

Amendment claims”) (emphasis added). 

Moreover, in granting Irvin qualified immunity on Phillips’s false arrest

claim, the district court itself determined that Irvin had arguable probable cause to

arrest Phillips for obstruction of governmental operations, in violation of Ala. Code

§ 13A-10-2. We agree with the district court that Irvin had arguable probable

cause to arrest Phillips for obstruction, based on the totality of the undisputed facts

in this case, including (as shown by the in-dash recording from Irvin’s patrol car)

that Irvin asked Phillips to “back off” at least eight times so that Irvin could

complete his “federal traffic stop” and “federal DOT inspection.”

Because we agree with the district court that Irvin had arguable probable

cause to arrest Phillips, we reverse the district court’s denial of qualified immunity
To the extent that Phillips argues that actual probable cause is required to establish 2

qualified immunity on the First Amendment claim, we also conclude that Irvin had actual

probable cause in any event.

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to Irvin on Phillips’s First Amendment retaliation claim. 

2

AFFIRMED IN PART, REVERSED IN PART.