1

This case originally was filed in the Circuit Court of Mobile County and was removed to federal

court for the Southern District of Alabama, which exercised supplemental jurisdiction under 28 U.S.C. §

1367 over the state-law causes of action. 

 2Although denied by Hall, Scarbrough and Davis contend that Holder subsequently advised Hall that

he should reconsider arresting Scarbrough and Davis because the Alabama statute requires knowledge,

and "they did not admit knowing the jewelry was unauthorized." R2-29-3 n. 2. 

Tammy D. SCARBROUGH, Carol C. Davis, Plaintiffs-Appellees,

v.

Bryant MYLES, Jr., Chuck Hall, Defendants-Appellants.

No. 00-14063

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

March 29, 2001.

Appeal from the United States District Court for the Southern District of Alabama. (No. 99-00526-CV-BHM), William B. Hand, Judge.

Before BIRCH, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

Bryant Myles, Jr. and Chuck Hall, both Mobile, Alabama, police officers and detectives with the

Property Crimes Unit, respectively appeal their denials of absolute and qualified immunity in district court.1

On April 6, 1997, Myles and Hall, wearing plain clothes, went to the Mobile Flea Market accompanied by

Jim Holder, a trademark infringement investigator and independent contractor who represents various

corporations in sting operations with local police departments. Hall purchased two Nike pendants, one from

each of the plaintiffs-appellees Tammy D. Scarbrough and Carol C. Davis, employees of Marion Douglas,

who owned the booth.

Hall showed the pendants to Holder, who verified that they bore unauthorized trademarks.2 Hall later

averred that he determined that this verification by Holder, in conjunction with Scarbrough and Davis's sale

of cheaply priced goods bearing unauthorized trademarks, which were in proximity to other booths selling

goods with unauthorized trademarks, was sufficient probable cause for their arrests. Hall subsequently

returned to the booth, arrested Scarbrough and Davis, and handcuffed them together while he arrested other

sellers of counterfeit goods. Scarbrough, Davis, and the other arrestees were transported to Mobile Police
 3

Scarbrough and Davis have challenged the existence of this letter. 

 4The City of Mobile was granted summary judgment and is not a party in this appeal. 

 5Hall purchased a Nike pendant from Scarbrough for $3 and a gold Nike pendant from Davis for $11. 

R1-20-Exh.7 at 10 (Hall's testimony at the preliminary hearing). 

Headquarters and then to Mobile Metro Jail. Their employer, Douglas, posted bond, and they were released

that night.

At the preliminary hearing on June 19, 1997, Myles testified that Nike, Inc. had advised in a letter

that such items were being sold, which was the basis for the investigation.3

 Based on this evidence, the state

judge determined that there was probable cause to bind Scarbrough and Davis to the grand jury. The charges

against them subsequently were no billed by the grand jury. Scarbrough and Davis then filed this 42 U.S.C.

§ 1983 action and alleged that the City of Mobile, Myles, and Hall falsely arrested and/or imprisoned them

and maliciously prosecuted them.4 The district judge denied qualified immunity to Hall for his arrests of

Scarbrough and Davis and to Myles for his testimony at the preliminary hearing.

 We review de novo the denial of qualified or absolute immunity. Jones v. Cannon, 174 F.3d 1271,

1281 (11th Cir.1999). Qualified immunity generally shields § 1983 government defendants from liability,

provided that "their conduct violates no 'clearly established statutory or constitutional rights of which a

reasonable person would have known.' " Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149 (11th

Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982)). Because qualified immunity is the "usual rule" for government actors sued in their individual

capacities, it will shield them unless case law establishes a bright line in "a concrete and factually defined

context" that makes a violation of federal law obvious. Id. "Thus, a police officer is entitled to qualified

immunity if a reasonable police officer could have believed his or her actions were lawful in light of clearly

established law and the information possessed by the officer at the time the conduct occurred." Jackson v.

Sauls, 206 F.3d 1156, 1165 (11th Cir.2000).

 Prior to consulting with Holder, Hall determined that he had probable cause to arrest Scarbrough and

Davis based on three factors: (1) each had sold him an unlawful Nike pendant, (2) in his opinion, the price

of the pendants was below what he would have expected a similar, legitimate item to cost,5

 and (3) numerous
 6

Hall also testified at the preliminary hearing that the reason for the officers' investigation of illegal

sales at the Mobile Flea Market on April 6, 1997, was in response to telephone calls reporting sales of

unlawful items bearing infringing trademarks at the flea market. Id. at 14. 

 7Under Alabama law, it is a Class C felony to copy or reproduce a trademark for a commercial

purpose knowing that the trademark has been used without the owner's consent. Ala.Code § 13A-8-

10.4(b)(4), (c) (1975). 

 8Our inquiry in qualified-immunity analysis is whether the government actor's conduct violated

clearly established law and not whether an arrestee's conduct is a crime or ultimately will result in

conviction. Police officers are not expected to be lawyers or prosecutors. See Lassiter, 28 F.3d at 1152 n.

8 (recognizing that it is " 'unfair and impracticable' to hold public officials to the same level of knowledge

as trained lawyers") (quoting Davis v. Scherer, 468 U.S. 183, 196 n. 13, 104 S.Ct. 3012, 3020 n. 13, 82

L.Ed.2d 139 (1984)). The district judge focused on the arrestees instead of the arresting officer in his

decision to deny Hall qualified immunity. The issue should have been whether Hall violated clearly

established law in making the arrests based on the objective factors that gave rise to his probable-cause

determination and not whether the arrestees' actions actually constituted a crime. 

other sellers were engaged in selling trademark infringing items near Scarbrough and Davis.6

 The fact that

the pendants that Scarbrough and Davis sold to Hall infringed Nike's trademark was confirmed by Holder and

is undisputed. Significantly, all that is required for qualified immunity to be applicable to an arresting officer

is "arguable probable cause to believe that a person is committing a particular public offense," Redd v. City

of Enterprise, 140 F.3d 1378, 1384 (11th Cir.1998); "that is, where 'reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have believed that probable cause

existed to arrest' the plaintiffs," id. at 1382 (citation omitted). See Jones, 174 F.3d at 1283 n. 3 ("Arguable

probable cause, not the higher standard of actual probable cause, governs the qualified immunity inquiry.").

 The district judge denied Hall qualified immunity, however, because Holder subsequently told Hall

that he should reconsider the arrests because he had not obtained admissions from Scarbrough and Davis that

they knew that the pendants infringed Nike's trademark before he arrested them.7

 Probable cause does not

require an arresting officer to prove every element of a crime or to obtain a confession before making an

arrest, which would negate the concept of probable cause and transform arresting officers into prosecutors.8

We have no clearly established law that places such a burden on Hall as the arresting officer.

 Additionally, qualified immunity is analyzed under a standard of "[o]bjective legal reasonableness."

Lassiter, 28 F.3d at 1150; see Jackson, 206 F.3d at 1165. Our inquiry is whether Hall, an experienced

investigating officer concerning the sale of trademark infringing goods, had sufficient objective evidence to

make the arrests of Scarbrough and Davis and not Holder's opinion or view of the state law subsequent to the

arrests. See Lassiter, 28 F.3d at 1150 (recognizing that "qualified immunity is a doctrine of practical
 9

We note that the district judge determined in the same order that there was no evidence that the

arrests precluded discretionary-function immunity, which Alabama law extends to municipal police

officers unless their conduct is willful, malicious, or in bad faith. R2-29-6-7; see Ala.Code § 6-5-338(a). 

In addressing discretionary-function immunity and qualified immunity, our court has stated that "[u]nder

both Alabama law and federal law, the core issue is whether a defendant violated clearly established law." 

Sheth v. Webster, 145 F.3d 1231, 1239 (11th Cir.1998) (per curiam); see Taylor v. Adams, 221 F.3d

1254, 1260 n. 9 (11th Cir.2000) ("Discretionary-function immunity arising under Alabama law is, like

qualified immunity arising under federal law, immunity from suit."), cert. denied, --- U.S. ----, 121 S.Ct.

774, 148 L.Ed.2d 673 (2001). Under discretionary-function-immunity analysis, a court first determines

whether the government defendant was performing a discretionary function when the alleged wrong

occurred; if so, "the burden shifts to the plaintiff to demonstrate that the defendant[ ] acted in bad faith,

with malice or willfulness in order to deny [him] immunity." Sheth, 145 F.3d at 1239; see Taylor, 221

F.3d at 1261 ("The [government defendants] are entitled to discretionary-function immunity if, on the

summary-judgment facts, their acts at the scene were discretionary and [the plaintiff] has not presented

evidence sufficient to create a jury question regarding whether they 'acted in bad faith, [or] with malice or

willfulness.' " (quoting Sheth, 145 F.3d at 1239) (third alteration in original)).

We also have found federal qualified immunity to be more inclusive than Alabama

discretionary-function immunity. Although the Alabama Supreme Court has equated qualified

immunity with discretionary-function immunity, we have recognized that federal qualified

immunity may not be defeated by willfulness, malice, or bad faith. Sheth, 145 F.3d at 1240 & n.

8. The district judge correctly concluded that these motivations were not present in this case,

which left him with the essential determination of whether clearly established law, known by a

reasonable police officer, was violated by Hall in arresting Scarbrough and Davis. See Post v.

City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993) ("[T]he burden is on the plaintiff to

show that, when the defendant acted, the law established the contours of a right so clearly that a

reasonable official would have understood his acts were unlawful."), modified on other grounds,

14 F.3d 583 (11th Cir.1994) (per curiam). His qualified-immunity analysis was inconsistent with

his discretionary-function-immunity determination and faltered when he changed from this

inquiry, based on the objective factors from which Hall derived probable cause for the arrests, to

the arrestees' knowledge that the pendants infringed Nike's trademark, an element of the crime

under state law for which Scarbrough and Davis potentially could have been prosecuted. See

Sheth, 145 F.3d at 1240; infra n. 8. 

 10Rather than analyzing the immunity applicable to Myles under qualified immunity, the district

judge should have used absolute immunity, since Myles's alleged misconduct occurred during his

testimony at the state preliminary hearing, and absolute immunity was pled as an affirmative defense. 

application to real-life situations" at the time the government conduct occurred and is not evaluated "by

hindsight, based on later events"). Because Hall violated no clearly established law in formulating probable

cause to arrest Scarbrough and Davis, he is entitled to qualified immunity.9

The district judge denied immunity to Myles, who was not involved in the arrests of Scarbrough and

Davis, because he concluded that there were material questions as to whether, in his testimony at the

preliminary hearing, Myles "deliberately lied about the existence of a letter from Nike warning against the

sale of unauthorized merchandise in a effort to establish probable cause otherwise lacking for the arrest of

the plaintiffs."10 R2-29-8. At the state preliminary hearing to determine probable cause for the arrests, Myles

testified that a letter warning vendors to cease selling items bearing infringing trademarks, sent by Nike, Inc.
 11Myles's direct testimony at the preliminary hearing responding to Scarbrough and Davis's counsel

was as follows:

Q ... Did you also attend the flea market that day?

A Yes, sir, I did.

Q Did you ever have any contact prior to this date with the owner or manager of the flea market?

A Not directly, again, through Mr. Holder that ... a letter was sent to the—

Q That's your understanding?

A It was sent by the Nike Corporation and several other trademark holders that a letter was sent to

them telling them not to sell any of these type of items.

Q Do you have a copy of that letter?

A No, sir, I do not.

Q Have you seen that letter?

A Yes, sir, I have.

Q Do you have it in your files?

A I do not have it in this file for particularly, these particular cases. I have seen the letter, yes, sir.

Q Did you verify that that letter was received?

A It was posted. I went out there and saw it, personally, on the cartboard right outside the office at

the flea market and the flea market was aware that they—that items were being sold, yes, sir.

Q And did you talk to the owner or manager?

A When?

Q Prior to these arrests?

A Prior to these arrests?

Q No, sir. Did you see it prior to these arrests, did you see the letter?

A I saw it prior, yes, sir.

Q Did you see it posted there, prior?

A Yes, sir.

R1-20-Exh. 7 at 16-17 (emphasis added). On cross-examination, Myles testified as follows

concerning the posted warning letter in response to the prosecutor's questions:

Q Bryant, the letter that was on the cartboard, where is this cartboard?

A It's right outside the office, right where the people that rent the booths are from the office.

and other trademark holders, was posted obviously at the Mobile Flea Market.11 Scarbrough and Davis
Q Okay. And what—

A It's displayed in a public area.

Q All right. And what does the letter say?

A It—to my best recollection, it has been a little while that I have seen this letter, that—that the flea

market is to desist and [ ]cease from individuals that are renting booths, from selling Nike,

Tommy Hilfiger, and other trademarked items.

Q And so it list[ed] certain trademarked items—

A Yes, sir—yes, ma'am.

Q —and requests that that be stopped immediately?

A Yes, ma'am.

Id. at 19 (emphasis added). 

 12In preserving the integrity of the judicial process, absolute immunity for witnesses minimizes

intimidation that might discourage testifying and "enhances reliability because those who testify will be

less likely to distort their testimony in favor of a future plaintiff in a civil suit for damages." Strength v.

Hubert, 854 F.2d 421, 424 (11th Cir.1988) (per curiam); see Holt v. Castaneda, 832 F.2d 123, 127 (9th

Cir.1987) ("In adversarial pretrial proceedings as well as at trial, absolute witness immunity is essential if

the truth-seeing function of the proceeding is to be fully served."). Additionally, absolute immunity

serves a purpose for police-officer witnesses that is different from lay witnesses. Police officers testify in

numerous cases every year, and defendants often convert resentment for being convicted into allegations

of perjury by the state's official witnesses. If a police-officer witness could be made to answer in court

each time that a disgruntled defendant charged him with wrongdoing, his energy and attention would be

diverted from his responsibilities of enforcing criminal law. Consequently, our court rejected the notion

that an exception to the doctrine of absolute immunity for witnesses should exist when a police officer is

alleged to have committed perjury during a criminal trial. Jones, 174 F.3d at 1287-88. Nevertheless,

contend that Myles's testimony regarding the letter was intentionally false to establish probable cause for the

arrests, and the district judge seemed influenced by this reasoning. Myles, however, was not the arresting

officer and did not need to establish probable cause for his conduct. He testified as a witness concerning his

memory of the contents of the letter posted at the flea market, which warned vendors to stop selling trademark

infringing goods.

 In § 1983 cases, absolute immunity is accorded "to functions 'intimately associated with the judicial

phase of the criminal process.' " Jones, 174 F.3d at 1281 (quoting Malley v. Briggs, 475 U.S. 335, 342, 106

S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986)). A preliminary hearing in Alabama is a judicial proceeding to

determine probable cause. DeFries v. State, 597 So.2d 742, 744 (Ala.Crim.App.1992); Ala.Code § 15-11-1;

see Ex Parte Wood, 629 So.2d 808, 811 (Ala.Crim.App.1993) (recognizing that a preliminary hearing is a

critical stage in the criminal process where a defendant has the right to counsel). Police officers have the

same absolute immunity as lay witnesses in testifying at trial or before a grand jury.12 Jones, 174 F.3d at
there is no evidence in the record that Myles testified falsely at the preliminary hearing regarding his

recollection of the warning sign posted at the flea market. 

 13The preliminary hearing was adversarial, and Myles's testimony was elicited under oath in open

court and was subject to cross-examination under the supervision of the presiding judge as well as

criminal prosecution for perjury. 

 14Apparently, the district judge was led astray by defense counsel's questioning Myles in state court

concerning his knowledge of whether he knew if Scarbrough and Davis knew if selling the Nike pendants

was unlawful. The state judge allowed this questioning over the prosecutor's objection and stated: "If he

knows, he can answer the question." R1-20-Exh. 7 at 18. Thereafter, the following question was asked

by defense counsel and answered by Myles: "Do you have any knowledge, as to whether or not

[Scarbrough and Davis] had direct knowledge that the selling of these items would be an illegal act? No,

sir." Id. Again, the district judge's focus was misplaced; it should not have been on Scarbrough and

Davis's knowledge, which is relevant to proof of the crime, because this § 1983 case concerns the conduct

of the police officers. 

1281. As with any witness testifying under oath, the penalty for false testimony is potential prosecution for

perjury.13 Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119, 75 L.Ed.2d 96 (1983); Jones, 174

F.3d at 1281. Because a preliminary hearing is a judicial proceeding, Myles enjoys absolute immunity for

civil liability damages resulting from his testimony. See Williams v. Hepting, 844 F.2d 138, 143 (3d

Cir.1988) (holding that a witness who testified at a preliminary criminal hearing in state court would be

entitled to absolute immunity from liability in a subsequent civil rights suit for damages based on alleged

perjured testimony during that proceeding). He also has absolute immunity from state-law claims. See Cutts

v. American United Life Ins. Co., 505 So.2d 1211 (Ala.1987) ("Absolute privilege exists in favor of those

involved in judicial proceedings, including ... witnesses...."). Consequently, Myles is entitled to absolute

immunity for his testimony at the preliminary hearing.14

Accordingly, we REVERSE the district judge's denial of qualified immunity to Hall and Myles and

REMAND with instructions to grant qualified immunity to Hall and absolute immunity to Myles.