[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-11262

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-01780-WMR

DARNELL BROWN, 

 Plaintiff-Appellee,

versus

C.R. GILL,

individually and in his official capacity as an employee of Dekalb County, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(November 19, 2019)

Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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C. R. Gill, an officer with the DeKalb County, Georgia, Police Department, 

appeals the district court’s denial of his motion for summary judgment, which he 

raised on the grounds of federal qualified immunity and Georgia official immunity. 

Officer Gill was sued by Darnell Brown for malicious prosecution after he arrested 

Brown for impersonating a police officer, obstruction, and prowling or loitering. 

On appeal, Gill argues that the district court erred in denying his summary 

judgment motion because he had probable cause to effectuate Brown’s arrest, he 

did not act with malice, and Brown failed to show a clearly established 

constitutional right that Gill violated. For the reasons stated below, we affirm.

I.

On June 2, 2015, several officers who were serving on one of the DeKalb 

County Police Department’s crime suppression units were surveilling a parking lot 

at a Super 8 hotel in Tucker, Georgia, where they suspected that prostitution and 

other illegal activity was occurring. Officer D. L. Craig observed a vehicle pull 

into the parking lot in front of room 115.1

 The driver, Darnell Brown, exited the 

vehicle, knocked on the door of room 115, and entered, where he remained for 

approximately twenty minutes.2

 While Brown was in the room, Craig spoke with 

1 Gill contends that room 115 was “a room known for prostitution activities.”

2 The record is foggy on what Brown was doing in the room. Gill suggests that Brown was 

paying a prostitute, “Patricia,” for sex, while Brown responds that he was merely visiting a 

friend. The district court did not make a finding of fact in this regard. We decline to do so, 

either, because whatever happened in the room does not affect the outcome of this case.

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Officer C. R. Gill—who was a member of the same unit, but parked elsewhere at 

the time—and advised him of the activity. Officer Gill informed Craig that he was 

on his way to the hotel, and asked Craig for the make, model, and license plate of 

Brown’s car, which Craig provided him. Gill confirmed that the vehicle was 

registered to Brown’s wife. Craig asked Gill if he wanted to stop Brown’s car, to 

“[s]ee if you can get [probable cause] on that?” Several minutes later, when 

Brown left the room and returned to his vehicle, Gill responded, “Alright uh 

[probable cause] on him would be good. We’ll stop him, get him to admit 

something, and then uh we’ll go over and knock on that door [to room 115].” Gill 

located Brown’s vehicle and reported to Craig that Brown did not use a turn signal 

when he turned onto a county road, so he pulled him over.

The parties differ on what exactly happened next. In denying Gill’s motion 

for summary judgment, the district court found:

At the time of the stop, Plaintiff (who worked as a security guard) was 

wearing black or blue military-type apparel with a plain black shirt 

and had various security officer or law enforcement paraphernalia in 

his vehicle. On the back seat of his vehicle was a blue or black shirt 

emblazoned with the words “Special Officer GA” or “Special Security 

Officer” in large font. On the floor of the back seat was a duty belt 

and holster with a firearm, pepper spray, a baton, handcuffs, 

flashlight, and a radio covered by a blue or black jacket also 

emblazoned with the words “Special Officer GA” or “Special Security 

Officer” and bearing a gold metal badge that said “Loss Prevention 

Officer.”

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Gill articulates a slightly different version of events. He testified in his deposition 

that “when [Brown] was pulling his license out, he was, kind of, fumbling around 

getting his license out and, kind of, flashing a star badge, and that’s when I, kind 

of, noticed there’s a badge in the wallet.” That description is inconsistent with he 

contemporaneously summarized the traffic stop on his police radio; there, in 

response to a question from Officer Craig, he said, “Uh he didn’t show it [his star 

badge] but I saw it.”

In any event, after noticing the aforementioned, Officer Gill asked Brown if 

he was in law enforcement. Brown stated in his deposition that he responded that 

he worked in the “security business” for a “private security” company, and that he 

worked for the Fulton County Sheriff’s Department in their Special Detail Unit in 

the past.3

 Meanwhile, in Gill’s deposition, he stated that Brown told him that he 

was “retired, but still [Peace Officer Standards and Training]-certified in Fulton 

County” and was “still working on work programs.” Brown disputed this,

testifying in his deposition that “[a]t no time period did I mention I was P.O.S.T. 

certified or I currently work for a police department or a law enforcement 

department.”

3 In his deposition, Brown testified that this was true—he worked for the Fulton County Sheriff’s 

Department from approximately 1988 to 1994.

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After the traffic stop, which resulted in Gill issuing Brown no citation, Gill 

conferred on his police radio with Craig and Sergeant Caviness, their supervisor. 

Caviness advised Gill to “go over to Fulton County and make sure he’s not just 

impersonating and if he is, we’ll get warrants on him.” A short period of time 

later, Gill spoke with Craig on the radio and informed him that Brown had “been 

arrested for impersonating an officer” in the past. According to the narrative that 

Gill wrote to accompany the incident report that he drafted, he spoke with the 

Fulton County Sheriff’s Department the next day about Brown’s claim that he had 

worked for them in the past. In his deposition, Gill explained that he spoke with 

the sheriff’s department “[t]o find out if [Brown] was actually POST-certified or if 

his story was even adding up.” Gill talked with Captain Kevin Walker and 

suggested to him that Brown “possibly has a Fulton County Badge on his person.” 

Neither Walker nor a sergeant from internal affairs were able to confirm that 

Brown had worked at the sheriff’s department in the past.

Later that day, Gill wrote out three arrest warrants for Brown that each 

alleged a different criminal violation. The first alleged that Brown impersonated a 

police officer in violation of O.C.G.A. § 16-10-23. In support of this warrant, Gill 

stated that Brown “flash[ed] his badge during the first approach to the accused 

vehicle on a traffic stop” and “advised that he just recently retired from the Fulton 

County Sheriff’s Department working 28 years.” The second warrant alleged that 

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Brown committed obstruction, in violation of O.C.G.A. § 16-10-24(a), because he 

lied and “impersonate[d] an officer [and] stat[ed] that he was not in the Super 8 

Motel pandering.” The third warrant alleged that Brown was loitering or prowling 

in violation of O.C.G.A. § 16-11-36(a), the basis of which was that Brown 

“advised he was a retired officer just helping out the female in reference to an 

outreach program.”

After the warrants were issued, Brown turned himself in to the DeKalb 

County Sheriff’s Office. Brown later challenged the bases for the warrants, 

arguing in court that the traffic stop was unconstitutional. The state court judge 

agreed and granted Brown’s motion to suppress, resulting in a nolle prosequi order 

on April 19, 2016.

On May 16, 2017, Brown filed a claim against Officers Craig and Gill, 

asserting claims for false arrest and malicious prosecution in violation of 42 U.S.C. 

§ 1983 and for malicious prosecution, false imprisonment, and intentional 

infliction of emotional distress under Georgia law. Craig and Gill moved to 

dismiss Brown’s claims. The district court dismissed Brown’s claims for false 

arrest and false imprisonment but denied their motion as to the claims for 

malicious prosecution and intentional infliction of emotional distress. The officers 

then moved for summary judgment on the basis of qualified and official immunity, 

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which the district court granted as to Craig, but denied as to Gill. Gill timely 

appealed to us.

II.

We review a district court’s denial of qualified immunity de novo. Nolin v. 

Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000). Because Officer Gill raised the 

defense of qualified immunity in a motion for summary judgment, he will prevail 

if there is no genuine dispute as to any material fact. Black v. Wigington, 811 F.3d 

1259, 1265 (11th Cir. 2016). In evaluating the facts, we “view all evidence and 

make any reasonable inferences that might be drawn therefrom in the light most 

favorable to the non-moving party,” but “only to the extent supportable by the 

record.” Loftus v. Clark-Moore, 690 F.3d 1200, 1203 (11th Cir. 2012).

Qualified immunity protects “government officials acting within their 

discretionary authority” from suits unless their conduct “violates 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. 

2010). When the official demonstrates that he was acting within the scope of his 

discretionary—as was inarguably the case here—“the burden shifts to the plaintiff 

to establish that qualified immunity is not appropriate.” Maddox v. Stephens, 727 

F.3d 1109, 1120 (11th Cir. 2013). Specifically, the plaintiff must demonstrate (1) 

that his constitutional rights were violated and (2) that those rights were “clearly 

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established at the time of the putative misconduct.” Loftus v. Clark-Moore, 690 

F.3d 1200, 1204 (11th Cir. 2012). We have the discretion to evaluate these 

inquiries in whichever order makes the most sense given the specific factual 

context of the case. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, we 

begin with the allegation that Brown’s constitutional rights were violated.

Our circuit recognizes a federal malicious prosecution claim under § 1983 as 

having two constituent elements. First, the plaintiff must demonstrate that his 

Fourth Amendment right to be free from unreasonable seizures was violated. 

Second, he must prove the common-law elements of malicious prosecution, which 

are “(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, 881–82 (11th Cir. 2003).

Given the procedural posture of this case, our review of this claim is limited 

to the first step in our analysis (whether Brown’s Fourth Amendment rights were 

violated) and the second element of malicious prosecution (whether Officer Gill 

acted with malice and without probable cause). These issues, of course, are 

interrelated due to the relevance of probable cause to both of them.

We have held that the Fourth Amendment right to be free from unreasonable 

seizures is violated by “an arrest without probable cause.” Grider v. City of 

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Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). For example, where a police 

officer initiates a criminal prosecution when “he should have known that his 

application failed to establish probable cause, or if he made statements or 

omissions in his application that were material and perjurious or recklessly false,” 

he violates the arrestee’s Fourth Amendment rights. Black, 811 F.3d at 1267. 

Conversely, where probable cause exists to effectuate an arrest, a claim for 

malicious prosecution is defeated. Id. This is true even if probable cause existed 

for a crime other than the one for which the party was actually arrested. Wilkerson 

v. Seymour, 736 F.3d 974, 979 (11th Cir. 2013). Moreover, an officer need not 

have actual probable cause so long as he has “arguable probable cause,” which 

exists where “reasonable officers in the same circumstances and possessing the 

same knowledge as the Defendants could have believed that probable cause existed 

to arrest Plaintiff.” Kingsland, 618 F.3d 1240, 1257 (11th Cir. 2010).

Brown argues that Gill violated his Fourth Amendment rights by falsifying 

facts in the arrest warrants that he wrote out—specifically, that Brown “flashed” 

his badge and pretended to be a police officer. The district court, construing the 

evidence in the light most favorable to Brown in this summary judgment posture, 

indicated:

[T]here is a genuine issue of material fact as to whether Officer Gill 

made a willful misrepresentation in obtaining the warrants. 

Specifically, at the time of the traffic stop, the evidence shows that 

Officer Gill informed Officer Craig that Plaintiff had not shown a 

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badge to him and that he merely noticed the badge, apparently in plain 

sight. However, in his affidavit in support of the arrest warrant, 

Officer Gill swore under oath that Plaintiff falsely held himself out as 

a police officer by “flashing his badge” during the traffic stop.

As suggested by the Supreme Court in Johnson v. Jones, we “simply take, as 

given, the facts that the district court assumed when it denied summary judgment.” 

515 U.S. 304, 319 (1995); see also Feliciano v. City of Miami Beach, 707 F.3d 

1244, 1252 n.5 (11th Cir. 2013) (noting that “we may either accept the district 

court’s factual findings, if they are adequate, or make our own determination of the 

facts”) (quotations and alteration omitted).

With that in mind, we affirm the district court’s denial of qualified 

immunity. As indicated above, we accept for purposes of this appeal that Gill 

falsified information in the affidavits supporting his arrest warrants and therefore, 

he would not have had arguable probable cause to arrest Brown. All three 

crimes—impersonation of a police officer, obstruction, and loitering or prowling—

are inherently predicated on an officer’s factual determinations and lack the sort of 

independent verification available in evaluating the existence of probable cause for 

other crimes. If Gill lied in explaining why he believed Brown committed those 

offenses, it is difficult to imagine how arguable probable cause existed to arrest 

him for them.

Gill’s arguments to the contrary are unavailing. He focuses attention on our 

ruling in Wilkerson, where we noted that probable cause to arrest for some offense 

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constitutes arguable probable cause, but he fails to point to any crime that Brown 

committed other than the three for which he wrote his warrants. Gill also submits 

that we should adopt the Second Circuit’s reasoning in Ganek v. Leibowitz, in 

which it held that, in evaluating probable cause in a situation like this, courts 

should “consider a hypothetical corrected affidavit, produced by deleting any 

alleged misstatements from the original warrant affidavit and adding to it any 

relevant omitted information.” 874 F.3d 73, 82 (2d Cir. 2017) (citations omitted). 

But we need not embrace or reject the Second Circuit’s reasoning in Ganek

because it is inapplicable here. Even if we excised the alleged lies from Gill’s 

affidavits, we would still be left with plainly insufficient bases to justify Brown’s 

arrest.

Finally, we have no difficulty in concluding that Brown’s constitutional 

rights were clearly established at the time of the conduct in question. As we noted 

in Kelly v. Curtis, the Supreme Court has held that “the Constitution prohibits an 

officer from making perjurious or recklessly false statements in support of a 

warrant,” which we have held applies to an “improperly obtained arrest warrant.” 

21 F.3d 1544, 1554 (11th Cir. 1994) (emphasis removed). And, of course, the 

right to not be arrested without probable cause is certainly clearly established. 

E.g., Grider, 618 F.3d at 1256.

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III.

Next, we evaluate Gill’s claim that the district court erred in denying his 

motion for summary judgment on official immunity grounds under Georgia law. 

Under Georgia law, official immunity “protects individual public agents from 

personal liability for discretionary actions taken within the scope of their official 

authority, and done without willfulness, malice, or corruption.” Cameron v. Lang, 

274 Ga. 122, 123 (Ga. 2001) (quotation omitted). In other words, an officer may 

be personally liable 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, § 2, ¶ 

IX. See also Lang, 274 Ga. at 123 (“[A] public officer or employee may be 

personally liable only for ministerial acts negligently performed or acts performed 

with malice or an intent to injure.”).

This requirement of “actual malice” is not coextensive with the requirement 

of “malice” in malicious prosecution. The Supreme Court of Georgia has noted 

that “actual malice” excludes “‘implied malice,’ i.e., the reckless disregard for the 

rights or safety of others,” instead requiring “‘express malice,’ i.e., a ‘deliberate 

intention to do wrong.’” Murphy v. Bajjani, 282 Ga. 197, 203 (Ga. 2007) 

(quotation omitted). The legal standard for evaluating the existence of actual 

malice is whether “[a] jury could infer from the evidence presented” that the 

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officer was acting with actual malice. See, e.g., Greenway v. Northside Hosp., 

Inc., 328 Ga. App. 473, 474 (Ga. Ct. App. 2014).

In applying this standard, Georgia courts have noted that actual malice is not 

present where an officer did not “manufactur[e] evidence or knowingly present[] 

perjured testimony,” Marshall v. Browning, 310 Ga. App. 64, 68 (Ga. Ct. App. 

2011), and even when an officer made “inconsistent, possibly untrue, statements.” 

Stephens v. Zimmerman, 333 Ga. App. 586, 591 (Ga. Ct. App. 2015). However, 

they have determined that a jury could find actual malice where officers 

improperly procured statements in pursuit of an arrest warrant “despite knowing of 

the statements’ falsity, inaccuracy or unreliability.” Lagroon v. Lawson, 328 Ga. 

App. 614, 619 (Ga. Ct. App. 2014).

This suggests a rational divergence in Georgia’s official immunity caselaw 

concerning the degree or magnitude of the (potentially) false statements contained 

in an arrest warrant. Where the statements might be untrue, or where the officer 

doesn’t know that the statements are untrue, official immunity applies, because the 

statements are devoid of “actual malice.” See, e.g., Zimmerman, 333 Ga. App. at 

591. But on the other hand, where the statements are actually untrue, and the 

officer writing out the warrant knows that this is the case, official immunity 

doesn’t apply because “actual malice” is present. E.g., Lagroon, 328 Ga. App. At 

619; see also Browning, 310 Ga. App. at 68.

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Accordingly, we affirm the district court’s denial of summary judgment on 

this ground because we think that a jury could conclude that Gill acted with actual 

malice. Accepting the evidence that the district court assumed, as we do in this 

appeal, Gill fabricated details about his interaction with Brown during the June 2, 

2015, traffic stop, from which a reasonable jury could infer actual malice. 

Accordingly, Gill is not entitled to official immunity under Georgia law.

For the foregoing reasons, we affirm the district court’s denial of summary 

judgment on qualified and official immunity grounds.

AFFIRMED.

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