[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-16863

________________________

D.C. Docket No. 1:15-cv-20444-JAL

OMAR PAEZ,

 Plaintiff - Appellee,

YOVANY DIAZ, 

JON ANTERIO, 

LYNDEAN PETERS, 

 Consolidated Plaintiffs - Appellees,

versus

CLAUDIA MULVEY,

an individual,

JOHN LOYAL,

KELLY SULLIVAN,

an individual,

ROBERT E. BREEDEN,

an individual, 

 Defendants - Appellants,

FLORIDA DEPARTMENT OF LAW ENFORCEMENT, et al.,

 Defendants.

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________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(February 8, 2019)

Before CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS,∗ District 

Judge.

MARCUS, Circuit Judge: 

In 2011, Sergeant Omar Paez, Sergeant Lyndean Peters, and Officer Yovany 

Diaz (“the Appellees”) of the Golden Beach Police Department were arrested on 

various charges of public corruption. The officers were accused of, among other 

things, fraudulently failing to report off-duty police work that would have required 

them to pay administrative fees to the Department. The officers were never tried 

and the criminal charges were dropped more than three years later. They now say 

the arresting officers, Detective John Loyal of the Miami-Dade Police 

Department’s (“MDPD”) Public Corruption Investigations Bureau, and Special 

Agent Claudia Mulvey of the Florida Department of Law Enforcement (“FDLE”), 

as well as Loyal and Mulvey’s supervisors, Sergeant Kelly Sullivan (MDPD) and 

Supervisory Agent Robert Breeden (FDLE), violated their constitutional rights by 

intentionally omitting exonerating information from the probable cause affidavits 

 ∗ The Honorable Eleanor L. Ross, United States District Judge for the Northern District 

of Georgia, sitting by designation.

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that secured their arrest warrants. The district court denied Loyal, Mulvey, and 

their supervisors (“the Appellants”) the protection of qualified immunity. But even 

if the omitted information had been included in the affidavits, there would still 

have been probable cause to believe each of the Appellees had engaged in a 

scheme to defraud in violation of Florida Statute § 817.034(4). Thus, there was no 

constitutional error in the officers’ arrests pursuant to warrants based on those 

affidavits, and Loyal and Mulvey, as well as their supervisors, were entitled to 

qualified immunity. 

I.

A.

Appellees Paez, Peters, and Diaz were police officers in the Golden Beach 

Police Department (“GBPD”) in the late 2000s. MDPD Detective John Loyal and 

FDLE Special Agent Claudia Mulvey were assigned to investigate alleged 

misconduct at the GBPD. Loyal and Mulvey jointly submitted probable cause 

affidavits to a judge sitting in Florida’s Eleventh Judicial Circuit Court in MiamiDade County that led to the issuance of arrest warrants for Paez, Peters, and Diaz. 

All three were arrested in early 2011 and subsequently released on bond. The 

criminal charges against them were dropped by the State Attorney’s Office and the 

case was dismissed in March 2014. The issue before us now is whether those 

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arrests violated the Fourth Amendment because of exculpatory information left out 

of the warrant affidavits.

Each probable cause affidavit outlined two types of allegedly criminal 

behavior. First, because Golden Beach Police Department official time logs and 

outside employer time logs for off-duty work showed work performed during the 

same hours, the affiants averred that Paez, Peters, and Diaz were paid for off-duty 

work while simultaneously billing hours for work performed at the GBPD. In 

addition, time logs taken from some outside employers revealed off-duty work that 

was not recorded by the GBPD. The Town of Golden Beach (“the Town”)

collected a five-dollar-per-hour administrative fee for off-duty police work to 

cover costs like insurance and the use of police vehicles. Because the invoices 

Paez, Peters, and Diaz submitted to the GBPD for off-duty work showed fewer 

hours than the time records kept by their off-duty employers, the affiants said that

Paez, Peters, and Diaz had avoided payment of the required administrative costs.

According to the Paez probable cause affidavit, signed by Loyal and 

Mulvey, Paez had worked 247.5 hours of unrecorded off-duty work, which would 

have required him to pay $1,237.50 in administrative fees to the Town. The 

affidavit also identified two occasions on which Paez worked off-duty for private 

employers during the same hours he was said to have worked for the GBPD, 

resulting in $212.49 of apparent “double compensation” from the Department. The 

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affidavit urged that there was probable cause to charge Paez with one count of an 

Organized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3)

and one count of Grand Theft in violation of Florida Statute § 812.014(2)(c). 

The Peters affidavit, also signed by Loyal and Mulvey, found that Peters 

engaged in 199.5 hours of unrecorded off-duty work, which would have required 

him to pay $997.50 in administrative fees to the Town. The affidavit also

identified eleven occasions on which Peters worked off-duty for private employers 

during hours he was listed as having worked for the GBPD, resulting in $1,380.12 

of apparent “double compensation” from the Department. The affidavit said there 

was probable cause to charge Peters with one count of an Organized Scheme to 

Defraud in violation of Florida Statute § 817.034(4)(a)(3), eleven counts of 

Official Misconduct in violation of Florida Statute § 838.022, one count of Grand 

Theft in violation of Florida Statute § 812.014, and one count of False and 

Fraudulent Insurance Claims in violation of Florida Statute § 817.234.

1

 1 This count related only to Peters and was not connected in any way to the other fraud 

and official misconduct charges. The affidavit averred that Peters had committed insurance 

fraud by submitting a $6,100 insurance claim for replacement of a police canine. Sergeant Peters 

had been rear-ended by a drunk driver and submitted claims to the driver’s insurance company

for Peters’ personal injury in the amount of $10,000, and for $10,000 in property damage on 

behalf of the Town, which included $3,900 in damages to a police vehicle and $6,100 for the 

replacement of the police canine he said had to be retired due to injuries sustained in the 

accident. The affidavit claimed that, according to veterinary records, the canine had “exhibited 

some soreness” but had not “sustain[ed] any injuries” in the accident that led to the insurance 

claim. Instead, the treating veterinarian had previously diagnosed a spinal condition and had 

recommended restricted duty or retirement for the canine before the car accident. 

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Finally, the Diaz affidavit, also signed by Loyal and Mulvey, identified 344 

hours of unrecorded off-duty work, which would have required the payment of 

$1,720 in administrative fees to the Town. The affidavit also identified five dates 

on which Diaz worked off-duty for private employers during hours he was listed as 

having worked for the GBPD, resulting in $312.00 of apparent “double 

compensation” from the Department. The affidavit claimed that there was probable 

cause to charge Diaz with one count of an Organized Scheme to Defraud in violation 

of Florida Statute § 817.034(4)(a)(3), two counts of Official Misconduct in violation 

of Florida Statute § 838.022, and one count of Grand Theft in violation of Florida 

Statute § 812.014(2)(c). 

B.

After the criminal charges against them were dropped by the State Attorney, 

Paez, Peters, and Diaz sued Loyal, Mulvey, Breeden, Sullivan, Miami-Dade 

County, the FDLE, and the Town of Golden Beach in Florida’s Eleventh Judicial 

Circuit.

2

 The lawsuits were promptly removed to the United States District Court 

 

The civil rights complaint alleged that based on veterinary records and the accident report 

available to Mulvey and Loyal during their investigation, it was clear the dog had been injured in 

the accident and that Peters had received no personal monetary benefit from the insurance 

payout. Because we find there was probable cause to believe Peters engaged in an organized 

scheme to defraud, we need not address whether there was probable cause to believe Peters had 

engaged in insurance fraud as well. See infra at 13–14.

2 The district court dismissed the claims against FDLE and Miami-Dade County, and 

Plaintiffs withdrew their claim against the Town. Those claims are not relevant to this appeal.

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for the Southern District of Florida, where they were consolidated and transferred 

to a single district judge. Each of the Appellees brought six claims relevant to this 

appeal: four § 1983 claims alleging that each of the four Appellants violated their 

Fourth Amendment rights by initiating a malicious prosecution, as well as state 

common law malicious prosecution claims against Loyal and Sullivan. 

In relevant part, the complaint urged that the affidavits submitted by Mulvey 

and Loyal should have included additional -- and importantly, exonerating --

information known to the affiants. This information, the complaint said, would 

have revealed that their conduct was not criminal. As for the unpaid administrative 

fees, the complaint alleged that the GBPD “had no authority” to charge the fees to 

the officers. In addition, the Appellees “had paid, and in fact had actually 

overpaid, the claimed administrative fees.” Meanwhile, the claimed incidents of 

overlapping on-duty and off-duty work, the complaint further alleged, represented 

the practice of using “flex time” to avoid overtime billing, a practice “well known 

to, and condoned by” the GBPD. That is, while the records of hours worked at the 

GBPD did not reflect the actual hours worked, the Department allowed its law 

enforcement officers to engage in this practice. 

The complaint also asserted that Mulvey and Loyal knew that the officers’ 

conduct was not criminal or improper. It referenced five relevant pieces of omitted 

evidence:

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[D]uring the investigation, Mulvey and Loyal: (1) were given a copy 

of the [Collective Bargaining Agreement for the GBPD], that clearly 

and by its express terms, did not authorize Golden Beach to charge its 

police officers the administrative fees but only authorized the off-duty 

employers to be charged; (2) secured witness statements from Golden 

Beach Chief Skinner that part-time police officers such as . . . for part 

of the covered period Diaz, were not covered by the CBA and its 

administrative fee policy; (3) chose to ignore undisputed evidence that 

Plaintiffs Paez, Peters, and Diaz had fully paid -- and had even 

overpaid -- the claimed administrative fees; (4) secured a sworn 

statement by Golden Beach Town Manager A. Diaz that Golden 

Beach officers regularly paid the fees late and Golden Beach would 

accept those late payments; [and] (5) were provided with sworn 

statements of [Police Chief] Skinner in 2010 and Golden Beach Police 

Captain Joseph Barasoain (“Barasoain”) in 2011 that discussed the 

“flex time” policy and were thus informed about the “flex time” 

practice as justification for the alleged double reporting of off-duty

and on-duty work hours . . . .

The complaint said that since Mulvey and Loyal knew these facts, their affidavits

contained knowingly false and misleading statements and omitted substantial 

exculpatory evidence.

The complaint urged that Mulvey’s supervisor (Breeden) and Loyal’s 

supervisor (Sullivan) also were liable for the misrepresentations made by officers 

Mulvey and Loyal. Breeden and Sullivan allegedly knew about the exculpatory 

evidence and also knew there was no probable cause to believe any crimes had 

been committed. Yet, they wrongfully approved the arrest warrant affidavits. The 

complaint added that Breeden and Sullivan were made aware of the contradictory 

facts by Mulvey and Loyal, and from their review of the investigative reports and 

all of the evidence and testimony that had been compiled. 

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The Appellants jointly moved the district court to dismiss all of the claims, 

arguing that there was no wrongful arrest and no malicious prosecution, and thus 

that they were entitled to qualified immunity. The district court granted the motion

in part and denied it in part. It rejected the motion to dismiss the § 1983 malicious 

prosecution claims and the state common law malicious prosecution claims leveled 

against Mulvey and Loyal. The trial court concluded that the complaint plausibly 

alleged that Mulvey and Loyal intentionally or recklessly made material omissions 

in their probable cause affidavits and that the inclusion of the omitted information 

would have negated any finding of probable cause. Thus, Mulvey and Loyal were 

not entitled to qualified immunity. 

As for the § 1983 supervisory liability claims, the district court dismissed 

Paez and Diaz’s § 1983 claims against Breeden because Breeden was no longer 

Mulvey’s supervisor at the time the relevant affidavits were submitted. However, 

the court denied the motion to dismiss all three § 1983 supervisory liability claims 

against Sullivan and Peters’ § 1983 supervisory liability claim against Breeden; 

like Mulvey and Loyal, the supervisors were not entitled to qualified immunity. 

Mulvey, Breeden, Loyal, and Sullivan timely filed this interlocutory appeal. 

II.

“We review de novo a district court’s decision to grant or deny the defense 

of qualified immunity on a motion to dismiss, accepting the factual allegations in 

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the complaint as true and drawing all reasonable inferences in the [nonmoving 

party’s] favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).

A.

Qualified immunity protects public officers “from undue interference with 

their duties and from potentially disabling threats of liability.” Harlow v. 

Fitzgerald, 457 U.S. 800, 806 (1982). It allows government officials to “carry out 

their discretionary duties without the fear of personal liability or harassing 

litigation.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009). “Because 

qualified immunity is a defense not only from liability, but also from suit, it is 

important for a court to ascertain the validity of a qualified immunity defense as 

early in the lawsuit as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 

2002) (quotation omitted). 

In order to establish qualified immunity, a defendant first must show that she 

was acting within the scope of her discretionary authority at the time of the alleged 

misconduct. See, e.g., Oliver, 586 F.3d at 905; O’Rourke v. Hayes, 378 F.3d 1201, 

1205 (11th Cir. 2004). No one disputes that Mulvey and Loyal were acting within 

the scope of their discretionary authority in investigating corruption in the Golden 

Beach Police Department, and in submitting probable cause affidavits, or that 

Breeden and Sullivan were acting within the scope of their discretionary authority 

in supervising Mulvey and Loyal. 

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Once a defendant has established that she was acting within her

discretionary authority, the burden shifts to the plaintiff to show that qualified 

immunity is not appropriate. Lee, 284 F.3d at 1194. The arresting officer would 

be entitled to qualified immunity unless the plaintiff establishes that “(1) [she]

violated a federal statutory or constitutional right, and (2) the unlawfulness of [her]

conduct was ‘clearly established at the time.’” Manners v. Cannella, 891 F.3d 959, 

968 (11th Cir. 2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 

(2018)). These two requirements may be analyzed in any order. See Pearson v. 

Callahan, 555 U.S. 223, 236 (2009). The questions, then, boil down to whether 

Mulvey and Loyal’s conduct violated the Fourth Amendment, and whether it was 

clearly established at the time that their conduct did so. Because we conclude that 

Mulvey and Loyal did not violate any constitutional right, we have no reason to 

address separately the “clearly established” prong.

B.

A constitutional claim brought pursuant to § 1983 must begin with the 

identification of a specific constitutional right that has allegedly been infringed. 

Albright v. Oliver, 510 U.S. 266, 270 (1994). Paez, Peters, and Diaz say that each 

of the Appellants violated the Fourth Amendment in pursuing malicious 

prosecutions against them. In order “[t]o establish a federal malicious prosecution 

claim under § 1983, a plaintiff must prove (1) the elements of the common law tort 

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of malicious prosecution, and (2) a violation of her Fourth Amendment right to be 

free of unreasonable seizures.” See, e.g., Kingsland v. City of Miami, 382 F.3d 

1220, 1234 (11th Cir. 2004). “[T]he constituent elements of the common law tort 

of malicious prosecution include[]: (1) a criminal prosecution instituted or 

continued by the present defendant; (2) with malice and without probable cause; 

(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the 

plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).

This appeal turns on the second part of the federal malicious prosecution 

claim: whether Paez, Peters, and Diaz were unreasonably seized in violation of the 

Fourth Amendment. If the conduct alleged did not violate the Fourth Amendment, 

the Appellants would be entitled to qualified immunity and the suit must be 

dismissed. A § 1983 malicious prosecution claim includes, though is not limited 

to, an unconstitutional arrest. See, e.g., Kingsland, 382 F.3d at 1235; Kjellsen v. 

Mills, 517 F.3d 1232, 1238 (11th Cir. 2008); Whiting v. Traylor, 85 F.3d 581, 584 

(11th Cir. 1996); see also Heck v. Humphrey, 512 U.S. 477, 484 (1994). An arrest 

made without probable cause is an unreasonable seizure. See, e.g., Grider v. City 

of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). The Fourth Amendment

provides, in pertinent part, that “no Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation,” U.S. Const. amend. IV, and the law requires

that a warrant for an arrest be supported by “sufficient information to establish 

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probable cause,” Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (citing 

Franks v. Delaware, 438 U.S. 154, 164 (1978)); see also Illinois v. Gates, 462 U.S. 

213, 238–39 (1983). Probable cause, in turn, is established “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.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003) 

(emphasis omitted) (quoting McCormick v. City of Fort Lauderdale, 333 F.3d 

1234, 1243 (11th Cir. 2003)). 

The affidavits alleged that there was probable cause to believe each Appellee 

had committed multiple crimes. At oral argument, all of the parties conceded that 

the existence of probable cause (or even arguable probable cause) as to any one 

offense would defeat a § 1983 malicious prosecution claim. Though this issue is 

unresolved in our case law pertaining to § 1983 malicious prosecution claims, we 

have said that arguable probable cause as to any one offense is sufficient to defeat 

§ 1983 claims for other Fourth Amendment violations, including false arrest and 

unlawful searches. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 

1997) (finding officer entitled to qualified immunity when a misstatement in a 

search warrant vitiated arguable probable cause as to one offense, but the 

misstatement was “not relevant to the existence of probable cause to believe that . . 

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. other . . . crimes had been committed”); Bailey v. Bd. of Cty. Comm’rs of 

Alachua Cty., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992) (“The validity of an arrest 

does not turn on the offense announced by the officer at the time of the arrest.”). 

Based on the parties’ concessions, we need not resolve the question as it relates to 

malicious prosecution. Rather, we assume arguendo that a finding of probable 

cause (or arguable probable cause) as to one offense announced in the affidavit 

would defeat the Appellees’ § 1983 malicious prosecution claims.

Probable cause “‘requires only a probability or substantial chance of 

criminal activity, not an actual showing of such activity.’ Probable cause ‘is not a 

high bar.’” Wesby, 138 S. Ct. at 586 (first quoting Gates, 462 U.S. at 243–44 n.13; 

then quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). Far from

“‘requir[ing] convincing proof’ that [an] offense was committed,” probable cause 

is a flexible and fluid concept, that looks instead to the totality of the circumstances 

to determine the reasonableness of the officer’s belief that a crime has been 

committed. Manners, 891 F.3d at 968 (quoting Bailey, 956 F.2d at 1120). 

Accordingly, “[t]he test for probable cause is not reducible to ‘precise definition or 

quantification,’” and “[f]inely tuned standards such as proof beyond a reasonable 

doubt or by a preponderance of the evidence . . . have no place in the [probablecause] decision.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (first quoting 

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Maryland v. Pringle, 540 U.S. 366, 371 (2003); then quoting Gates, 462 U.S. at

235). 

Importantly, as we noted in Manners, an affirmative defense to an alleged 

crime does not necessarily vitiate probable cause. Manners, 891 F.3d at 971–72. 

Indeed, “arresting officers, in deciding whether probable cause exists, are not 

required to sift through conflicting evidence or resolve issues of credibility, so long 

as the totality of the circumstances present a sufficient basis for believing that an 

offense has been committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir. 

2002), abrogated on other grounds by Lozman v. City of Riviera Beach, 138 S. Ct. 

1945 (2018). This is so, in part, because probable cause is a preliminary 

determination made initially in an ex parte proceeding. Again, it does not require 

anything close to conclusive proof or proof beyond a reasonable doubt that a crime 

was in fact committed, or even a finding made by a preponderance of the evidence. 

See Manners, 891 F.3d at 968. A law enforcement officer is not required to 

resolve every inconsistency found in the evidence. Moreover, police officers 

aren’t lawyers; we do not expect them to resolve legal questions or to weigh the 

viability of most affirmative defenses. See Williams v. City of Albany, 936 F.2d 

1256, 1260 (11th Cir. 1991) (“Whether the statute of limitations bars a prosecution 

is a question of law. The officers properly deferred legal decisions to the district 

attorney.”). So long as it is reasonable to conclude from the body of evidence as a 

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whole that a crime was committed, the presence of some conflicting evidence or a 

possible defense will not vitiate a finding of probable cause. The touchstone 

remains the reasonableness of the officer’s conduct.

It is also true that officers may not lie about or conceal critical information. 

The Supreme Court has held that the Fourth Amendment demands a warrant 

affiant provide information with a reasonable belief in its veracity:

[W]hen the Fourth Amendment demands a factual showing sufficient 

to comprise ‘probable cause,’ the obvious assumption is that there will 

be a truthful showing. . . . This does not mean “truthful” in the sense 

that every fact recited in the warrant affidavit is necessarily correct . . . 

[but] surely it is to be “truthful” in the sense that the information put 

forth is believed or appropriately accepted by the affiant as true.

Franks, 438 U.S. at 165–66. Intentional or reckless material misstatements or 

omissions in a warrant affidavit thus could violate the Fourth Amendment. Kelly 

v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). Negligent misstatements or 

omissions, on the other hand, do not. Id.

We have employed a two-part test to determine whether a misstatement in 

an officer’s warrant affidavit amounts to a violation of the Fourth Amendment. 

First, we ask whether there was an intentional or reckless misstatement or 

omission. Then, we examine the materiality of the information by inquiring

whether probable cause would be negated if the offending statement was removed 

or the omitted information included. See United States v. Kirk, 781 F.2d 1498, 

1502 (11th Cir. 1986) (“[W]e must consider: (1) whether the alleged misstatements

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in the affidavit were made either intentionally or in reckless disregard for the truth, 

and, if so, (2) whether, after deleting the misstatements, the affidavit is insufficient 

to establish probable cause.” (citing Franks, 438 U.S. 154)); see also Madiwale, 

117 F.3d at 1326–27 (“[A] warrant affidavit violates the Fourth Amendment when 

it contains omissions made intentionally or with a reckless disregard for the 

accuracy of the affidavit . . . if inclusion of the omitted facts would have prevented 

a finding of probable cause.” (internal citation and quotation omitted)); Stewart v. 

Donges, 915 F.2d 572, 582 n.13 (10th Cir. 1990) (“Whether the omitted statement 

was material is determined by examining the affidavit as if the omitted information 

had been included and inquiring if the affidavit would still have given rise to 

probable cause for the warrant.”). 

Three basic rules, then, guide our consideration today: (1) a warrant for 

arrest must establish probable cause for an offense; (2) a warrant affidavit must 

contain truthful statements that do support probable cause; and (3) an affidavit’s 

omissions may lead to an unreasonable and unconstitutional warrant-based arrest if

information that the affiant knew about but intentionally or recklessly disregarded 

negates a finding of probable cause. Because at this stage in the proceedings we 

must accept the facts as alleged in the complaint as true, we take as true that the 

exculpatory information was known to Loyal and Mulvey and their omission was 

made either intentionally or in reckless disregard of the truth. Our only question, 

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then, is whether the affidavits still would have established probable cause to 

believe the officers had violated Florida Statute § 817.034(4), if they had included 

the omitted information that they knew about. If so, Mulvey and Loyal did not 

violate the Fourth Amendment, nor did their supervisors, and each of them would 

be entitled to qualified immunity.

Paez, Peters, and Diaz face a difficult road in perfecting their § 1983 claims. 

As the Supreme Court has explained in a similar context, “the . . . standard of 

objective reasonableness . . . defines the qualified immunity accorded an officer 

whose request for a warrant allegedly caused an unconstitutional arrest. Only 

where the warrant application is so lacking in indicia of probable cause as to render 

official belief in its existence unreasonable will the shield of immunity be lost.” 

Malley v. Briggs, 475 U.S. 335, 344–45 (1986) (citation omitted); see also id. at 

341 (“Defendants will not be immune if, on an objective basis, it is obvious that no 

reasonably competent officer would have concluded that a warrant should issue; 

but if officers of reasonable competence could disagree on this issue, immunity 

should be recognized.”). Put another way, if the affidavits (including the omitted 

information) would have demonstrated even arguable probable cause -- that a 

reasonable officer could have believed an offense was committed -- then the 

officers are entitled to qualified immunity. See, e.g., Grider, 618 F.3d at 1257.

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Here, we find that the affidavits would have established not just arguable probable 

cause, but probable cause itself.

III.

A.

We consider the § 1983 malicious prosecution claims against Mulvey and 

Loyal together because the § 1983 claims levelled against Mulvey and Loyal are 

essentially the same. Both Mulvey and Loyal swore and signed each of the 

affidavits. Loyal was referred to as the “Affiant” and Mulvey as the “Co-Affiant.” 

The complaint alleges that Mulvey and Loyal conducted the investigation together 

and that each knew about the relevant information that the Appellees claim was 

omitted. In addition, although Mulvey and Loyal are represented by different 

counsel on appeal, each has adopted the arguments of the other.

After reviewing all of the relevant information -- what was included and 

what was omitted -- there still was probable cause to believe Paez, Peters, and Diaz 

had engaged in an organized scheme to defraud in violation of Florida’s criminal 

law, and that, therefore, there was no violation of the Fourth Amendment. Reliable 

information described in the affidavits still would have led a reasonable officer to 

believe that Paez, Peters, and Diaz intentionally failed to report off-duty work 

hours that would have required them to pay administrative fees. The omissions do 

not undercut the reasonableness of the belief. Among other things, the affidavits 

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asserted probable cause to charge each of the three law enforcement officers with

engaging in an organized scheme to defraud in violation of the Florida 

Communications Fraud Act, Florida Statute § 817.034. The relevant provision of 

Florida’s penal code makes it a crime to “engage[] in a scheme to defraud and 

obtain[] property thereby.” Fla. Stat. § 817.034(4)(a). “Property” is defined as 

“anything of value.” Fla. Stat. § 817.034(3)(c). A “scheme to defraud” is “a 

systematic, ongoing course of conduct with intent to defraud one or more persons, 

or with intent to obtain property from one or more persons by false or fraudulent 

pretenses, representations, or promises or willful misrepresentations of a future 

act.” Fla. Stat. § 817.034(3)(d). To “defraud” means to “cause injury or loss to (a 

person or organization) by deceit; to trick (a person or organization) in order to get 

money.” Defraud, Black’s Law Dictionary 516 (10th ed. 2014) (internal 

punctuation omitted).

Although there are countless ways to engage in a scheme to defraud --

indeed the concept is as wide as the imagination of man -- the conduct here would 

fit the basic statutory definitions. Having repeatedly and deceptively failed to 

report off-duty work hours and having thereby deprived the Town of fees to which 

it was rightfully entitled, the Appellees appeared to have engaged in a “systematic, 

ongoing course of conduct with intent to defraud.” Fla. Stat. § 817.034(3). 

Probable cause, then, comes down to this: since Paez, Peters, and Diaz repeatedly 

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withheld relevant information about off-duty work in order to avoid payment of 

fees, there was sound reason to believe each had engaged in an organized scheme 

to defraud. The affidavits themselves set out sufficient facts drawn from more than 

one reliable source that would lead a reasonable officer to believe the Appellees

repeatedly withheld information in order to avoid paying fees. The claimed

omissions do not undermine the reasonableness of the affidavits.

The civil rights complaint references three pieces of omitted information: 

that the administrative fees were not legally owed by the officers; that, in any 

event, the officers were allowed to pay the fees late; and that the officers had, in 

fact, paid the fees. We examine each in turn. Since the omitted facts only relate to 

whether Paez, Peters, and Diaz had the “intent to defraud” or the “intent to obtain 

property . . . by false or fraudulent . . . representations,” our analysis focuses on 

intent. 

First, the Appellees say that, pursuant to Article 29 of the Collective 

Bargaining Agreement (“CBA”) between the Town and the police officer’s union, 

the GBPD expressly agreed to charge administrative fees only to off-duty 

employers, not to the officers themselves. Thus, they say, because Mulvey and 

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Loyal had a copy of the CBA,

3 they knew or should have known that the officers 

were not contractually responsible for paying the administrative fees. 

We remain unpersuaded. Even with conflicting information about whether 

the officers were responsible for paying the administrative fees, the affiants still 

could reasonably believe that Paez, Peters, and Diaz were required to report their 

off-duty work hours and pay the administrative fees. This is so because reliable 

sources told them as much. Mulvey and Loyal were informed by the Golden 

Beach Finance Director, Maria Camacho, that “GBPD officers who work off-duty 

details are required to pay an administrative fee.” The Appellees do not dispute

that Mulvey and Loyal were told this. And the Finance Director’s responsibilities

included collecting the fees, so it was perfectly reasonable for the investigating

officers to credit her account. 

The investigating officers did not rely just on this statement, however. 

According to their affidavits, Mulvey and Loyal also reviewed GBPD spreadsheet 

records, which catalogued GBPD officers’ off-duty work and the payment of 

administrative fees. Indeed, those spreadsheets contained highly detailed 

information about the payment of administrative fees, including the amount of fees 

 3 Mulvey and Loyal apparently did have the CBA and did recognize its significance to the 

administrative fees. At least one of the affidavits recognized that the CBA covered the 

administrative fees, saying the fees “are required to be paid by all GBPD officers covered by the 

Collective Bargaining Agreement working off-duty details.” 

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owed and paid, the date of payment, and even the form of payment. These 

spreadsheets came from reliable sources. The Golden Beach Finance Director 

explained that the officers themselves were responsible for any missing details in 

the spreadsheets -- “the accuracy of the spreadsheet relies upon the accuracy of the 

documentation submitted by the off-duty officer and [the Operations Captain].” In 

fact, even the Appellees say, in a charge they leveled against the Town of Golden 

Beach, that there was an “unwritten policy and practice[] to charge the Golden 

Beach police officers . . . [the] administrative fee.” A reasonable investigating 

officer could accept that the CBA said one thing but that the policy and practice 

was quite another. 

As we’ve noted, probable cause is a preliminary determination. The 

investigating officers were not required to resolve legal matters in dispute, 

understand the nuances of any possible defense, or answer them in order to decide 

whether there was probable cause. Jordan, 487 F.3d at 1356–57. Even if there was

an affirmative defense that the fees were not contractually owed by the officers 

themselves and they therefore received no legal benefit from their conduct, that 

defense does not negate the preliminary determination of probable cause.

In the second place, the Appellees say that -- even if the officers themselves 

were required to pay the administrative fees -- Golden Beach allowed its officers to 

pay the fees late. As we see it, this fact is irrelevant. The affidavits didn’t claim

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that Paez, Peters, and Diaz had failed to timely remit payments due. Rather, the 

affidavits charged the three officers with having taken affirmative steps to conceal 

essential facts from their employer (the GBPD) that would have evidenced that

administrative fees were owed. Paez, Peters, and Diaz offer no explanation for the 

discrepancies found in the spreadsheets apparently based on their failure to report 

essential facts. The spreadsheets were compared with off-duty employer records, 

and the comparison revealed repeated instances of unreported or under-reported 

off-duty work. 

Finally, the Appellees claim that the affidavits omitted any reference to a

2010 sworn statement by the Golden Beach Finance Director indicating that they 

had fully paid -- indeed, had overpaid -- the claimed administrative fees for the offduty work that they had reported. The problem again, however, is that the failure 

to pay is not the central element of the charged fraud; rather, the failure to report

the off-duty hours is the critical component. The affidavits asserted that the 

spreadsheets maintained by the GBPD and the Town of Golden Beach, at the time 

that they reviewed it, had been “recently updated.” Yet the spreadsheets, when 

compared to records drawn from off-duty employers, revealed numerous instances 

of off-duty work being omitted. Thus, for example, the affidavit supporting the 

arrest warrant for Paez identified some 37 separate dates of off-duty work between 

December 2008 and September 2009 that were missing from the spreadsheets. The 

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affidavit supporting the Peters arrest identified 21 such dates between December 

2008 and September 2009. And the affidavit providing the basis for the warrant to 

arrest Diaz, in turn, identified 46 such dates between March 2009 and December 

2009. The affidavits also said that Mulvey and Loyal reviewed subpoenaed 

“payroll records, off-duty, and on-duty logs” from the GBPD and the Town of 

Golden Beach in April 2010. None of the omitted information suggests that the 

investigating officers’ sources were unreliable or that there weren’t significant

discrepancies between the GBPD spreadsheets and off-duty employer records. 

Mulvey and Loyal reasonably believed that Paez, Peters, and Diaz

committed fraud by their repeated failure to report regardless of the fee-payment 

status. And even if the affidavits had included a statement saying that in 2010 the 

Appellees had paid the “claimed administrative fees” -- the fees for the work they 

had reported -- nothing about the payment status would negate a finding that they 

intentionally concealed material information from the Department. The unreported 

information was relevant, material to any examining official, and it should have 

been reported. The investigating officers had reason to believe that Paez, Diaz, 

and Peters were required to pay administrative fees, and that they were also 

required to report their off-duty hours to the Golden Beach Police Department. A 

prudent person would have believed based on an examination of all the operative 

facts -- what was included and what was omitted -- that the officers had engaged in 

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a scheme to defraud in violation of Florida law. Their arrests were not 

unreasonable and did not violate the Fourth Amendment. Since the allegations, 

taken as true, do not establish a violation of the Constitution, Mulvey and Loyal 

were entitled to qualified immunity on each of the § 1983 malicious prosecution 

claims.

Finally, because Mulvey and Loyal committed no constitutional violations, 

their supervisors, Breeden and Sullivan, cannot be found liable either for violating 

§ 1983. The claims against Sergeant Sullivan and Supervisory Agent Breeden are 

premised entirely on their supervision of Loyal and Mulvey. But “there can be no 

supervisory liability . . . if there was no underlying constitutional violation.” Gish 

v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008); see also Myers v. Bowman, 713 

F.3d 1319, 1328 (11th Cir. 2013) (“[A] supervisor may not be held liable under 

section 1983 unless the supervised official committed an underlying violation of a 

constitutional right.”). Since there was no Fourth Amendment violation, much less 

a clearly established Fourth Amendment violation, Breeden and Sullivan are 

entitled to qualified immunity as well.

B.

The Appellees also brought common law malicious prosecution claims

under Florida law against Mulvey and Loyal, though not against their supervisors. 

The district court again refused to dismiss the claims on the grounds that they are 

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barred under Florida law by official immunity, a species of sovereign immunity 

that shields officers from tort liability unless the officer “acted in bad faith or with 

malicious purpose or in a manner exhibiting wanton and willful disregard of 

human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). 

In Florida, the elements of the common law tort of malicious prosecution are

these: 

(1) an original judicial proceeding against the present plaintiff was 

commenced or continued; (2) the present defendant was the legal 

cause of the original proceeding; (3) the termination of the original 

proceeding constituted a bona fide termination of that proceeding in 

favor of the present plaintiff; (4) there was an absence of probable 

cause for the original proceeding; (5) there was malice on the part of 

the present defendant; and (6) the plaintiff suffered damages as a 

result of the original proceeding. 

Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002).

We have pendent appellate jurisdiction over the district court’s denial of the 

motion to dismiss these state law claims. The denial of qualified immunity as to 

the § 1983 claims falls squarely within our appellate jurisdiction. See Mitchell v. 

Forsyth, 472 U.S. 511, 530 (1985); see also Howe v. City of Enterprise, 861 F.3d 

1300, 1302 (11th Cir. 2017); Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 

2003). We also have pendent appellate jurisdiction over issues that are 

“inextricably intertwined” or “inextricably interwoven” with the issue on appeal. 

See United States v. Masino, 869 F.3d 1301, 1305 (11th Cir. 2017); Harris v. Bd. 

of Educ. Of Atlanta, 105 F.3d 591, 594 (11th Cir. 1997). Pendent appellate 

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jurisdiction is limited and rarely used. See King v. Cessna Aircraft Co., 562 F.3d 

1374, 1379–80 (11th Cir. 2009). Issues are not “inextricably intertwined” with the 

question on appeal when “the appealable issue can be resolved without reaching 

the merits of the nonappealable issues.” In re MDL-1824 Tri-State Water Rights 

Litig., 644 F.3d 1160, 1179 (11th Cir. 2011). Here, however, we cannot evaluate 

the denial of qualified immunity on the § 1983 malicious prosecution claims 

without necessarily evaluating the merits underlying the state law malicious 

prosecution claims. Both analyses require us to consider whether the affidavits 

sufficiently establish probable cause. Where a finding of probable cause (or 

arguable probable cause) is a component of a qualified-immunity claim on appeal, 

a state law claim that also depends on the existence of probable cause is 

“inextricably intertwined” for purposes of pendent appellate jurisdiction. See

Valderrama v. Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015).

We review the district court’s ruling on a motion to dismiss de novo. See

Fortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir. 1993). The denial of a motion 

to dismiss is proper if the plaintiff’s complaint, taking the facts alleged therein as 

true, makes out a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). 

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Our Fourth Amendment § 1983 probable cause analysis applies with equal 

force to state common law malicious prosecution claims. The absence of probable 

cause is a necessary element of common law malicious prosecution. See MiamiDade County v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA 2012). For the same 

reasons the complaint has failed to make out a § 1983 malicious prosecution claim, 

it also fails to plausibly allege a state common law malicious prosecution claim. 

These claims, too, should have been dismissed.

The long and short of it is that officers Mulvey and Loyal submitted warrant 

affidavits supporting a finding of probable cause. Nothing alleged in the 

Appellees’ civil rights complaint undermines probable cause and thus, Mulvey and 

Loyal, as well as their supervisors Breeden and Sullivan, were entitled to qualified 

immunity on the § 1983 claims. And because there was probable cause to arrest, 

the state law malicious prosecution claims fail as well. The judgment of the 

district court is reversed and the cause remanded for further proceedings consistent 

with this opinion.

REVERSED and REMANDED.

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