United States Court of Appeals,

Eleventh Circuit.

No. 94-2337.

Gerald WILLIAMSON, Plaintiff-Appellant,

v.

F.H. MILLS, individually and in his capacity as an agent/employee

of the Florida Department of Business Regulation; Florida

Department of Business Regulation, Defendants-Appellees.

Sept. 27, 1995.

Appeal from the United States District Court for the Northern

District of Florida. (No. GCA 93-10032-MMP), Maurice Mitchell Paul,

Chief Judge.

Before COX, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Gerald Williamson sued Lieutenant Frederick Mills, an agent of

the Florida Department of Business Regulation, Division of

Alcoholic Beverages, for violations of Williamson's First, Fourth,

Fifth, Eighth, and Fourteenth Amendment rights resulting from

Mills's detention of Williamson at Fourth of July festivities in

1991. Concluding that Mills is individually entitled to qualified

immunity, the district court granted him summary judgment.

Williamson appeals. We reverse and remand.

I. Background

The core facts are essentially undisputed. On July 4, 1991,

the Florida Freedom Festival and Parade was held in Tallahassee to

honor veterans of the Vietnam War. Williamson, a veteran, was

invited to attend. He came to the Festival with his camera,

accompanied by several other members of a group called Veterans for

Peace. The group set up an information table in the ceremony area
 1

We now know that Williamson was not taking the photographs

for any improper purpose. 

and planned to march under a banner in the parade.

Security was tight because several dignitaries, including

Governor Lawton Chiles, were attending the Festival. Among the

plainclothesmen and women present were Mills and Elaine Pavan, an

agent of the Division of Alcoholic Beverages and Tobacco. A death

threat was outstanding against Pavan in connection with her

undercover investigation of biker gangs, and Mills was aware of the

threat. Several other undercover law officers besides Pavan were

in the security force.

During the festivities, Mills noticed that Williamson was

taking pictures of some of the undercover officers. Mills knew

that a photograph of Pavan would enable a hit man to identify her.

He also was aware that photographs of other undercover officers are

saleable to organized crime groups, which use such photographs to

detect undercover infiltration.1

 Williamson and others in his

group, for their part, believed that the plainclothesmen and women

were surveilling them too closely, and they feared that the

plainclothesmen were members of a subversive group. Williamson was

taking photographs of the plainclothesmen to show to Veterans for

Peace members who were not attending the Festival. Williamson in

fact succeeded in taking, along with a few pictures of the

festivities, frontal photographs of several undercover officers,

but not of Pavan.

As Williamson and other members of Veterans for Peace walked

to Williamson's car to get their parade banner, Mills stopped
Williamson, flashed his laminated badge, and demanded the film from

Williamson's camera. Williamson refused, and Mills threatened to

arrest him. Williamson asked on what charges, and Mills replied

that the charge was threatening the life of a police officer.

Williamson still refused to turn over the film, and this colloquy

repeated itself several times.

As Williamson finally turned to leave, Mills grabbed

Williamson's shoulder, pushed him against a van, and handcuffed one

hand. Mills then forced Williamson against a car hood and

handcuffed his other hand. As a crowd including Television news

cameras began to form, Mills put Williamson in the back of a police

van and took him to a nearby parking lot. Mills continued to

demand, and Williamson to refuse, the film from Williamson's

camera. While in the parking lot, Mills pushed Williamson, still

handcuffed, against the police van and tried to take the camera by

force. Williamson protested, and Mills again tried to persuade

Williamson to surrender the film. Finally, a Tallahassee policeman

told Williamson to hand over the film because the camera would be

taken when Williamson was arrested, anyway. Williamson agreed to

turn over the film. Mills removed the handcuffs. Williamson

removed the film from the camera, and Mills gave him five dollars

to reimburse him for the cost of the film. The entire encounter

lasted thirty or forty minutes.

Williamson sued Mills, the City of Tallahassee, the Florida

Department of Business Regulation, and two Tallahassee Police

Department officers under 42 U.S.C. § 1983, asserting violation of

several constitutional rights. The district court dismissed the
claims against Tallahassee, the Florida Department of Business

Regulation, and the officers in their official capacities, holding

that the Eleventh Amendment bars these claims. The court granted

summary judgment for Mills in his individual capacity based on

qualified immunity, focusing on Williamson's false arrest claim.

Williamson appeals only the summary judgment for Mills, and he

bases his argument only on the Fourth Amendment claim.

II. Issue and Standard of Review

The primary issue on appeal is whether Mills is entitled to

summary judgment based on qualified immunity on Williamson's Fourth

Amendment claim. We review summary judgments de novo. Hardin v.

Hayes, 957 F.2d 845, 848 (11th Cir.1992).

III. Discussion

 We conclude that Mills does not merit qualified immunity

against the Fourth Amendment false arrest claim. An official sued

as an individual is entitled to qualified immunity, and therefore

summary judgment, if his conduct "does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "For

qualified immunity to be surrendered, pre-existing law must

dictate, that is, truly compel (not just suggest or allow or raise

a question about), the conclusion for every like-situated,

reasonable government agent that what defendant is doing violates

federal law in the circumstances. " Lassiter v. Alabama A & M

Univ., 28 F.3d 1146, 1150 (11th Cir.1994) (en banc). "Public

officials are not obligated to be creative or imaginative in
 2

The district court determined that Mills's detention had

crossed the hazy boundary between an investigative stop

(requiring only a reasonable suspicion under Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny)

and an arrest (requiring probable cause). We agree with the

court's analysis—and indeed it goes unchallenged in this

appeal—but believe that the court asked the wrong question. The

relevant question is not whether the detention amounted to an

arrest, but whether precedent compelled a reasonable official in

Mills's shoes, possessing the information he possessed, to

conclude that his detention of Williamson was an arrest rather

than an investigative stop. In a case such as this in which the

level of Fourth Amendment protection is a possible issue,

determination of the investigative stop-arrest boundary

necessarily enters into the legal analysis we ascribe to the

defendant to determine whether "what [he] is doing violates

federal law in the circumstances." Lassiter, 28 F.3d at 1150. 

See United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th

Cir.1986); United States v. Berry, 670 F.2d 583, 591 (5th Cir.

Unit B 1982) (en banc). 

drawing analogies from previously decided cases." Adams v. St.

Lucie County Sheriff's Dep't, 962 F.2d 1563, 1575 (11th Cir.1992)

(Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th

Cir.1993). "If case law, in factual terms, has not staked out a

bright line, qualified immunity almost always protects the

defendant." Kelly v. Curtis, 21 F.3d 1544, 1550 (11th Cir.1994)

(quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th

Cir.1993)).

Even under these stringent standards, Mills is not entitled to

qualified immunity from Williamson's claim of false arrest because

a reasonable official in Mills's shoes, possessing the information

Mills possessed, could not have believed that his conduct comported

with the Fourth Amendment. In particular, pre-existing law compels

the conclusion that Mills arrested Williamson without probable

cause.2

The Fourth Amendment permits warrantless arrests if made with
probable cause. E.g., United States v. Espinosa-Guerra, 805 F.2d

1502, 1506 (11th Cir.1986). "A law enforcement officer has

probable cause to arrest a suspect if 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." Von Stein v.

Brescher, 904 F.2d 572, 578 (11th Cir.1990). Critical to probable

cause is some information identifying the subject of the arrest as

the perpetrator of the suspected criminal conduct. See, e.g., Wong

Sun v. United States, 371 U.S. 471, 480-482, 83 S.Ct. 407, 413-414,

9 L.Ed.2d 441 (1963).

Qualified immunity shields Mills against a claim of arrest

without probable cause if a "reasonable officer could have believed

[the arrest] to be lawful, in light of clearly established law and

the information the [arresting] officers possessed." Hunter v.

Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589

(1991) (second brackets in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523

(1987)). "Even law enforcement officials who "reasonably but

mistakenly conclude that probable cause is present' are entitled to

immunity." Id. (quoting Anderson, 483 U.S. at 641, 107 S.Ct. at

3039). As this court has put it, to enjoy qualified immunity Mills

need only have had arguable probable cause to arrest Williamson.

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558 (11th Cir.1993).

An officer in Mills's shoes could not have reasonably

concluded that he had probable cause to arrest Williamson. It is
true that Mills had reason to believe criminal activity may have

been afoot. He knew of the death threats against Pavan. Mills

also knew of the recent convictions of the makers of another death

threat against Pavan, and this could reasonably have led Mills to

believe that the current death threats were real. He knew that

photographs of Pavan could be useful in carrying out any death

threats. Moreover, Mills was aware that criminal organizations

prize photographs of undercover officers because of the help the

photos give them in weeding out law enforcement infiltration.

What was fatally missing from Mills's knowledge, however, was

a link between the suspected criminal activity and Williamson. Cf.

Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir.1995)

(holding that no arguable probable cause existed to raid a

nightclub when law enforcement officials lacked any information

that employees, owners, or patrons of the club were involved in

suspected drug activity). Taking photographs at a public event is

a facially innocent act. The mere fact that Williamson's

photographs could have been used for unlawful activity—such as

carrying out a death threat against Pavan—is not enough to

establish even arguable probable cause for Williamson's arrest

unless Mills had some datum to connect Williamson to the death

threats or other crime. Not only did Mills lack this information;

the record discloses no effort at any time to find out who

Williamson was, check his criminal record, or otherwise find out if

Williamson was connected to biker gangs or organized crime.

Because Mills lacked even arguable probable cause to arrest

Williamson, Mills was not entitled to qualified immunity against
Williamson's claim of false arrest. The district court concluded

to the contrary that Mills did merit qualified immunity, and thus

it did not reach the merits of the Fourth Amendment claim. Rather

than considering the claim ourselves, we remand for the district

court to address the merits.

 The district court's opinion treats Williamson's Fourth

Amendment excessive force claim as a discrete claim, and concludes

that Mills is also due summary judgment on this claim based upon

qualified immunity. On appeal, Williamson does not argue that the

force used was more than that reasonably necessary to effect the

arrest. He argues that "[t]here was no need for any force as the

force was used to accomplish an unlawful arrest." (Appellant's Br.

at 15) (emphasis added). In this case, damages recoverable on

Williamson's false arrest claim include damages suffered because of

the use of force in effecting the arrest. See Hamm v. Powell, 874

F.2d 766, 770 (11th Cir.1989). Under these circumstances,

Williamson's excessive force claim is subsumed in his false arrest

claim, and thus we find no reversible error in the district court's

grant of summary judgment on the excessive force claim as a

discrete claim.

IV. Conclusion

Because the law was clearly established that Mills's actions,

based on the facts at his disposal, violated Williamson's Fourth

Amendment rights not to be arrested without probable cause, Mills

is not entitled to qualified immunity against this claim. We

therefore REVERSE the district court's grant of summary judgment in

Mills's favor on the Fourth Amendment claim of false arrest and
REMAND for further proceedings. The judgment is otherwise

AFFIRMED.

AFFIRMED in part; REVERSED and REMANDED in part.