[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 10490 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cv - 00253

- LMM
WBY, INC., d.b.a. Follies, JOSHUA SCHINDLER, STEVE YOUNGELSON, Plaintiffs

- Appellees,

versus DEKALB COUNTY, GEORGIA, et al., Defendants, JEFFERY RUTLAND, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Georgia

_______ _________________ (June 16, 2017) Case: 16-10490 Date Filed: 06/16/2017 Page: 1 of 182 Before MARCUS, ROSENBAUM, and FAY, Circuit Judges. PER CURIAM: Defendan t

- Appellant Jeffrey Rutland, a l ieutenant with the De K alb County Police Department, appeals the district court’s order denying him qualified immunity from Plaintiff

- Appellee Joshua Schindler ’s 42 U.S.C. § 1983 claim for wrongful arrest in violation of the Fourth Amendment. After careful review, we affirm the denial of qualified immunity.
I. Background This case arises out of a police raid conducted by the DeKalb C ounty Police Department at Follies, an adult entert ainment club, on April 19, 2013

. The raid allegedly was a “business check” for the purpose of ensuring Follies’ s compliance with the DeKalb County Code. This appeal n arrow focuses on an interaction in th e Follies parking lot between Rutland, one of the officers on the scene, and Schindler, who worked as a valet at Follies. 1
Schindler works fo r “Valet for Life,” a valet car

- parking company that had a contract with Follies for valet services. When custome rs pull up to the valet “staging” area in the Follies parking lot across from the front doors, Schindler accepts the valet fee, gives a ticket to the driver, and then parks the car.

1 Schindler brought his claims jointly with Follies and its owner, Steve Youngelson , who challenged the constitutionality of the raid itself, among other matters . Only Schindler’s § 1983 wrongful

- arrest claim is at issue in this appeal.

Case: 16-10490 Date Filed: 06/16/2017 Page: 2 of 183 On the day of the raid, Schind ler was working his valet shift, preparing to park a car that was in the staging area , when police officers drove into the parking lot in a grey van, a black SUV, and several other marked and unmarked police cars. The unmarked grey van pulled up directly behind the car where Schindler

w as standing. Just after the van pulled up, Schindler began walking back toward s the front entrance of Follies, where the valet podium was located. Meanwhile, numerous officers had exited the vehicles and were heading into Follies. As depicted i n the sec urity footage 2 below , Schindler ( in khaki pants and a black long

sleeved shirt by the silver car near the top

- middle ) was walking toward s the front
entrance of Follies behind two of the police officers , while the other officers approached Follies from the side

. Rutland is at the top left of the picture.

2 The images in this opinion are screenshots from Follies’ s security footage that have been cropped to highlight the relevant details. The security footage does not have audio.

Case: 16-10490 Date Filed: 06/16/2017 Page: 3 of 184 As Schindler walked back toward s the valet podium, Rutland, who was near a police vehicle off to Schindler’s right, approached him , began yelling for him to “back down , ” and demand ed to know what he was doing. Rutland testified that he believed Schindler was attempting to interfere with the officers who were entering Follies. Schindler stopped, turned toward s Rutland, and told him that he was a valet and that he did n ot understand w hat was going on. Rutland came up extremely close to Schindler, standing between him and the front entrance , and again yelled at Schindler to “back down.” Schindler reiterated that he was a valet and asked why Rutland, who was “extremely lived,”

was ta king such an aggressive tone with him

. Schindler testified that he did not understand what Rutland meant by “back down,” though he eventually t ook one step backward s from Rutland (top

- right picture below) and put his hands out low and to his sides in a placating gesture. Rutland stepped forward and put his hand

on Schindler’s arm , while Schindler turned away from Follies . Another officer (in the blue shirt) immediately ran over and helped Rutland take Schindler to the ground. 3 Schindler ’s hands were zip

- tied behind his back , and he was detained for the remainder of the raid.

3 Rutland insists that the other officer, not Rutland , initiated the arrest, but the video is ambiguous on the matter , and a rea sonable jury could infer that Rutla nd at least participated in Schindler’s arrest.

Case: 16-10490 Date Filed: 06/16/2017 Page: 4 of 185 Between stopping at Rutland’s request and taking one step backward s , Schindler remained standing in the same location, about one car ’s length into the parking lot just outside the front entrance. A bout 12 or 13 seconds elapsed from when Rutland reached Schindler to when Schindler took one step backward s . Schindler testified that he did not say anything to the other officers before Rutl and intervened, and that during his encounter with Rutland he did not yell, swear, or respond in anger.

Case: 16-10490 Date Filed: 06/16/2017 Page: 5 of 186 After the raid, Schindler was transported to the Dekalb County Detention Center and charged with disorderly conduct. That charge was dismissed for w ant of prosecution when Rutland and the other office r failed to show up for Schindler’s trial date. After the charges against him were dropped, Schindler brought th is civil

rights lawsuit alleging claims of excessive force and false arrest under 42 U.S. C. § 1983 and related state

- law claims. Following discovery, Rutland moved for summary judgment and invoked the defense of qualified immunity with regard to the § 1983 claims

. Rutland argued that Schindler could not overcome the defense of qualified immu nity because there was “no law clearly establishing that Defendant Rutland acted unlawfully . . . in arresting Plaintiff Schindler for disorderly conduct.” The extent of Rutland’s analysis of Schindler’s wrongful

arrest claim is as follows: With regard to the arrest of Plaintiff Schindler, the facts are undisputed that Rutland approached Schindler as he appeared to be trying to follow police into the club and asked Schindler multiple times to back away. Schindler admits he did not heed Rutland’ s instructions but instead refused to back up. Because there is no law that makes Schindler ’ s arrest patently unlawful under this circumstance, Rutland is entitled to qualified immunity and the claims against him should be dismissed on summary judgment.
R esponding to Rutland’s summary

- judgment motion, Schindler argued that Rutland lacked probable cause to arrest for disorderly conduct. In reply, Rutland contended for the first time that, even assuming Schindler was incorrectly charged

Case: 16-10490 Date Filed: 06/16/2017 Page: 6 of 187 with disorderly cond uct, the arrest was still objectively valid because a reasonable officer could have believe d that Schindler’s failure to back away at an officer’s

c ommand constituted obstruction of an officer under O.C.G.A. § 16

- 10

- 24(a)

. The district court granted in part and denied in part Rutland’s motion for summary judgment. In relevant part, the court denied qualified immunity to Rutland for Schindler’s § 1983 wrongful

- arrest claim , finding no arguable probable cause to arrest Schindler for disorderly conduct . T he court explained that the undisputed facts showed only that Schindler briefly hesitated to obey an instruction , and “ merely hesitating to obey an instruction does not necessarily amount to loud or boisterous behavior, nor does it necessarily show that Sc hindler was trying to incite individuals to act against the officers. ” The court did not address Rutland’s arguments that there was arguable probable cause to arrest for obstruction. Rutland timely appealed the denial of qualified immunity.
II. Standard of Review We review de novo a district court’s denial of summary judgment on qualified

- immunity grounds. Carter v. Butts Cty., Ga. , 821 F.3d 1310, 1318 (11th Cir. 2016). S ummary judgment is appropriate only when the moving party demonstrates that no disputed issue of material fact exists. Id. In reviewing whether summary judgment was appropriate, we must accept the non

- movant’s version of the facts as true and draw all reasonable inferences in his favor. Id. We

Case: 16-10490 Date Filed: 06/16/2017 Page: 7 of 188 do not make credibility determination s or choose between conflicting testimony. Id. When a factual conflict exists in the evidence, we credit the non

- moving party’s version of events. Id. Accordingly, the qua lified

- immunity determination must be based on the plaintiff’s versi on of the facts. Id.
III. Discussion The defense of qualified immunity protects government officials from individual liability when they are engaged in their job duties unl ess they violate “clearly established federal statutory or constitutional rights of which a reasonable person would have known.” Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2013) (brackets and internal quotation marks omitted). Thus, q ualified immunity “does not offer protection if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff].” Carter , 821 F.3d at 1319 (internal q uotation marks omitted). Officials asserting qualified immunity must first establish that they were acting within the scope of their discretionary authority at the time of the alleged misconduct. Id. Once they do, the burden shifts to the plaintiff to overcome the defense of qualified immunity by showing “ both that the officer ’ s conduct violated a constitutionally protected right and that the right was clearly established at the time of the misconduc t .” Id

.

Case: 16-10490 Date Filed: 06/16/2017 Page: 8 of 189 There is no dispute that Rutland was acting within the scope of his discretionary authority as a police officer. So we turn to the questions of whether Rutland violated Schindler’s constitutional rights and whether those rights were clearly est ablished. “[I] t is well established that [a] warrantless arrest without probable cause violates the Fourth Amendment and forms a basis for a section 1983 claim.”
Carter , 821 F.3d at 1319 (internal quotation marks omitted). But where probable
cause supp orts an arrest, it bars a § 1983 unlawful

- arrest claim. Id. “ Prob able cause to arrest exists if the facts and c ircumstances within the officer’ s knowledge, of which he 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.” Id. (internal quotation marks omitted). Probable cause determinations are evaluated objectively

— that is, without regard to the officer’s subjectiv e intentions

— and under the totality of the circumstances. See id. As a result , “[t]he validity of an arrest does not turn on the offense announced by the officer at the time of the arrest.” Lee v. Ferraro , 284 F.3d 1188, 1195

– 96 (11th Cir. 2002) (quoting Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., Fla. , 956 F.2d 1112, 1119 n.4 (11th Cir. 1992)). Even if probable cause is lacking, however, an officer is still entitled to qualified immunity if arguable probable cause supported the arrest. Id. Qualified

Case: 16-10490 Date Filed: 06/16/2017 Page: 9 of 1810 immunity therefore protects an officer if he reasonably but mistakenly believed that probable cause was present. Carter , 821 F.3d at 1319

– 20. But “[w] here an officer arrests without even arguable proba ble cause, he violates the arrestee’ s clearly established Fourth Amendment right to be free from unreasonable seizures. ” Id. at 1320.
A. Rutland ’s Theory of Probable Cause on Appeal On appeal, Rutland abandons any challenge to the district court’s conclusion that there was not arguable probable cause to arrest Schindler for disorderly conduct

. See Sapuppo v. Allstate Floridian Ins. Co. , 739 F.3d 678, 680 (11th Cir. 2014) (issues not briefed on appeal are abandoned). In any case, even if the issue

were properly before us, we agree with the district court that, under Schindler’s version of events, arguable probable cause to arrest for disorderly conduct did not exist

. Instead of relying on disorderly conduct, Rutland now charges Schindler with having obstructed an officer under O.C.G.A. § 16

- 10

- 24 (a) . However, Rutland did not sufficiently present his current legal arguments and theories to the district court . In his motion for summary judgment, Rutland never argued t hat arguable probable cause to arrest for obstruction existed

. Rather, he claimed entitlement to qualified immunity because “no law clearly establish [ed] that Defendant Rutland acted unlawfully . . . in arresting Plaintiff Schindler for

Case: 16-10490 Date Filed: 06/16/2017 Page: 10 of 1811 disorderly conduct .” Rutland then broadly contended that “ there [wa] s no law that makes Schindler’s arrest patently unlawful under this circumstance .” These statements are not sufficient to “ specifically and clearly ” identify to the district court that the arrest may have been justified under § 16

– 10

– 24(a). See Access Now, Inc. v. Sw. Airlines Co. , 385 F.3 d 1324, 1330

– 31 (11th Cir. 2004) (any issue that a litigant wants the court to address “should be specifically and clearly identified”).
A l though Rutland did raise his current theory of probable cause in a reply brief in support of his motion for summary judgment, reply briefs are not a vehicle
to present new arguments or theories. See Herring v. Sec’y, Dep’t of Corr. , 397 F.3d 1338, 1342 (1 1th Cir. 2005) ( “ As we repeatedly have admonished, a rguments raised for the first time in a reply brief are not properly before a reviewing court.” ) (internal quotation marks omitted) (alterations adopted). Because Rutland’s current theory of probable cau se was raised clearly in his reply brief only , it was within the district court’s discretion to decline to address that theory. Thus, Rutland impermissibly attempts to “argue a different case ” from the one he “presented to the district court.” See Irvi ng v. Mazda Motor Corp. , 136 F.3d 764, 769 (11th Cir. 1998). But “theories not raised squarely in the district court cannot be surfaced for the first time on appeal. ” Wood v. Milyard , 132 S. Ct. 1826, 1832 (2012) ( internal quotation marks omitted). Since Rutland did not

Case: 16-10490 Date Filed: 06/16/2017 Page: 11 of 1812 “specifically and clearly” articulate his current theory of qualified immunity to the district court at an appropriate time , we will not address its merits on appeal. See
Access Now , 385 F.3d at 1330

– 31

. Although we may exercise our discretion to address arguments raised for the first time on appeal, Rutland’s case does not implicate the “ exceptional conditions” that justify review of newly raised issues,

see id. at 1332

– 35 & n

. 4.
B. Rutland is not Entitled to Qualified Immunity
I n any case , even assuming without deciding that the issue is properly before us and that the district court erred by failing to evaluate whether arguable probable cause to arrest Schindler for obstruction an officer existed , see Lee , 284 F.3d at 1195

– 96, Rutland still is not entitled to qualified immunity because, taking the facts in the light most favorable to Schindler, no reasonable officer could have believed that Schindler ’s conduct constituted obstruction under Georgia law. Under Georgia law, “ a p erson who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor. ” O.C.G.A. § 16

- 10

- 24(a). “ The essen tial elements of that crime are: (1) knowingly and willingly obstructing or hindering, (2) any law enforcement officer, (3) in the lawful discharge of his official duties .” Larkin v.
State , 495 S.E.2d 605, 606 (Ga. Ct. App. 1998).

Case: 16-10490 Date Filed: 06/16/2017 Page: 12 of 1813 Construed in the light most favorab le to Schindler, the facts show that Schindler , who was no t being detained and who was not suspected of having committed a crime, briefly hesitated to obey Rutland’s ambiguous instructions to “back down,” after he had already stopped at the officer’s request and was standing in the parking lot where he was working as a valet, while attempting to inform the officer that he was the valet and to inquire as to what the officers were doing. Under these circumstances, Schindler’s statements to Rutland alone are not sufficient to constitute obstruction under Georgia law. 4 Although Georgia courts have held that “ words alone can constitute obstruction, ” the Georgia Court of Appeals in Harris v. State reviewed Georgia case law and “ found no case upholding an obstruc tion convictio n based solely upon a defendant’ s act of speaking to, remonstrating with, or even criticizing an officer during the performance of his duties. ” 726 S.E.2d 455, 458 (Ga. Ct. App. 2012) (noting that deceiving an officer or interfering with an officer’s interview of a reporting party may be sufficient to qualify as obstruction ) . Rather, there usually must be “words plus something more.” Id. That “ something more ” may be the defendant’s “refus[al] to comply with an officer’s directive or command ” or the defendant’s “threatening or violent” behavior. Id.

4 While Rutland testified that Schindler was yelling and cursing at him and the other officers , Schindler denies doing so. We must credit Schindler’s version of events in making the qualified

- immunity determination. See Carter , 821 F.3d at 1318.

Case: 16-10490 Date Filed: 06/16/2017 Page: 13 of 1814 Schindler’s statements here did not even amount to criticism or challenge of the officer, but rather were attempts to disclose information about his identity and to understand why a significant number of officers were conducting a raid at his place of employment. So the statements alone cannot establish arguable probable

cause to arrest

. See Skop v. City of Altanta , 485 F.3d 1130 , 1139 (11th Cir. 2007) ( “ When, as under Skop ’ s version of the facts, an individual

. . . simply reiterates or attempts to clarify a perfectly reasonable question directed to the officer, there is neither probable cause nor arguable probable cause to arrest for obstruction. ”) ; Davis v. Wil liams , 451 F.3d 759, 767 (11th Cir. 2006) (“Neither an owner’ s simple inquiry as to why officers are present on his property nor a person ’ s attempt to bring a dangerous situation to the officer ’ s attention can be construed as obstruction of justice or diso rderly conduct. Nor can a citizen be precluded by the threat of arrest from asking to speak to an officer ’ s superio r or from asking for an officer’ s badge number. Those inquiries likewise do not constitute obstruction of justice or disorderly conduct. ”)

. Rutland mainly argues that Schindler’s repeated refusal to comply with commands to back away from Follies constituted obstruction. Under the facts of this case, construed in Schindler’s favor, we disagree. Initially, we note that Georgia law clearly provides that citizens have no freestanding obligation to comply with a police officer’s requests when the officer

Case: 16-10490 Date Filed: 06/16/2017 Page: 14 of 1815 is not discharging a lawful duty. For example, when an officer detains an individual without reasonable suspicion, the “ citizen is free to i gnore requests and/or to walk away, and

. . . no charge of obstruction [will] lie .” Strickland v.
State , 594 S.E.2d 711, 715

– 16 (Ga. Ct. App. 2004). In other words, the simple fact that Schindler may have hesitated in complying with Rutland’s requests to “back down” is not alone sufficient to show obstruction under the facts of this case

. Rather, Schindler’s brief hesitation must have obstructed or hindered the lawful discharge of either Rutland’s or another officer’s official duties. The official dutie s relevant to this case are the officers’ execution of a police operation at Follies. So the question is whether Schindler’s conduct hindered or obstructed the execution of those duties. Construing the facts in the light most favorable to Schindler, we c annot conclude that his brief hesitation in complying with Rutland’s command to “back down” was sufficient to supply even arguable probable cause to believe that Schindler obstructed the lawful execution of a legal duty. Schindler’s conduct amounted to no more than a “ mere failure to immediately respond ” to a police officer’s orders, which, without more, is insufficient to show obstruction under § 16

- 10

- 24(a). Martinez v. State , 743 S.E.2d 621, 623 (Ga. Ct. App. 2013); Coley
v. State , 344 S.E.2d 490, 490 (Ga. Ct. App. 1986).

Case: 16-10490 Date Filed: 06/16/2017 Page: 15 of 1816 In Coley , for example, an officer was dispatched to investigate a domestic disturbance between the defendant and his wife. 344 S.E.2d at 490. When the officer arrived, the defendant , who was “ committing no of fense , ” was walking back toward s his pickup truck, the passenger door of which was open. The defendant’s wife shouted, “He’s got a gun,” prompting the officer to order the defendant to move away from the truck. The defendant “did not do so.” The officer repeated his order, and the defendant changed tack and began walking toward s the house. The officer then twice ordered the defendant to stop. When the defendant did not stop, the officer ran up and conducted an arrest. The Georgia Court of Appeals foun d nothing in this evidence to support the conclusion that the defendant “ obstructed or hindered [the officer] in any way in the performance of his duty. ” “At most,” the court explained, “he did not respond immediately” to the officer’s orders. Id. And t he mere failure “respond immediately” to an officer’s orders is “insufficient ” to constitute obstruction. Id. at 491. Here, like the defendant in Coley , Schindler did “nothing more than fail to respond immediately to [Rutland’s] orders.” 5 Id. At the time that Schindler briefly

5 Rutland argues that the cases Schindler relies upon have all been disapproved or overruled, but, as far as we are able to tell, Coley has never been disapproved. Even within one of the cases Rutla nd cites for the purpose of showing such disapproval, the court did not disapprove of Coley and instead distinguished it based on its facts, implicitly recognizing that Coley remains good law. Stryker v. State , 677 S.E.2d 680, 682

– 83 (Ga. Ct. App. 2009). Numerous other cases have likewise factually distinguish ed Coley while recognizing the validity of its holding

. See , e.g. , Davis v. State , 706 S.E.2d 710, 717 n.26 (Ga. Ct. App. 2011) ( finding Coley “inapposite” but citing it for the proposition that a “ defendant’ s mere failure to

Case: 16-10490 Date Filed: 06/16/2017 Page: 16 of 1817 hesitated to comply with Rutland’s commands to “back down,” Schindler was stopped well outside of Follies’ s front door in the parking lot where he was employed as a valet, he was not being detained n or was he suspected of having committed a crime, he was not interfering with any officer’s freedom of movement into or out of Follies, and he was not, as Rutland asserts, “interpos[ing] himself in the middle of the operation, ” whatever Rutland may have believed about Schindle r’s initial intentions. In fact, once he had stopped at Rutland ’s approach, Schindler made no significant move other than to step backward s . While Schindler did speak to Rutland, Schindler testified that he was not argumentative or hostile during their b rief interaction. See id. at 490. Accordingly, we see no evidence from which a reasonable officer in Rutland’s position could have concluded that Schindler “obstructed or hindered [ an officer] in any way in the performance of his duty .” Id. Rutland’s reliance on Mayhew v. State , 682 S.E.2d 594, 596

– 98 (Ga. Ct. App. 2009), is misplaced. The obstructive conduct in that case was not simply

immediately follow police orders was insufficient to show obstruction”); West v. State , 673 S.E.2d 558, 561 (Ga. Ct. App. 2009) (“In Coley , the defendant ref used to comply with the officer’ s orders to move away from a truck and to stop. We reversed his conviction for obstruction because there was no evidence that the defendant obstructed or hindered the officer, noting that the defendant did not “speak to, or argue with, [the officer]. At most, he did not respond immediately to [the officer’s] orders.”); Johnson v. State , 507 S.E.2d 13, 15 (Ga. Ct. App. 1998) (distinguishing Coley and noting that, in Coley , “the defendant committed no crime in the officer’s presence . . . [,] [n]or did he argue with the officer”); Reed v. State , 422 S.E.2d 15, 17

– 18 (Ga. Ct. App. 1992) (distinguishing Coley on its facts).

Case: 16-10490 Date Filed: 06/16/2017 Page: 17 of 1818 failing to move back immediately when told to do so . Rather, the defendant in Mayhew repeatedly refused to comply with the officer’s request s to step back and stop yelling while the officer was attempting to interview another individual as part of the officer’s investigation into an emergency call

. See id. at 596

– 97. Thus, the defendant’s refusal to comply with the officer’s repeated request s plainly obstructed the officer’s investigation into the emergency call. Id. at 598. In sum, because Schindler’s conduct amounted to no more than a failure to respond immediately to Rutland’s orders while informing the office r of his status

as a valet and questioning what the officers were doing at Follies, it cannot reasonably be construed as obstructing or resisting the exercise of a lawful duty. Accordingly, we affirm the district court’s denial of qualified immunity to Ru tland on Schindler’s § 1983 claim for unlawful arrest. AFFIRMED. Case: 16-10490 Date Filed: 06/16/2017 Page: 18 of 18