Candice Sorrells v. Josh Smith

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13568

____________________

CANDICE SORRELLS,

Individually and as next friend Z. P.,

Z.P.,

Plaintiffs-Appellees,

versus

CHIEF KENNY DODD,

in his Individual capacity,

et al.,

Defendants,

JOSH SMITH,

Detective in his Individual capacity,

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2 Opinion of the Court 21-13568

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:20-cv-00188-AT

____________________

Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.

PER CURIAM:

In 2017, Detective Josh Smith arrested Candice Sorrells for

being a party to two crimes under Georgia law committed by her

boyfriend, Devecio Rowland: cruelty to animals and dogfighting.

After a grand jury declined to indict Sorrells and all charges against

her were dismissed, Sorrells sued Smith under 42 U.S.C. § 1983 for

malicious prosecution and under Georgia law for the torts of illegal

arrest, false imprisonment, and intentional infliction of emotional

distress (“IIED”). Smith moved for summary judgment, arguing

that (1) the federal malicious prosecution claim was barred by

qualified immunity; (2) the state-law claims of illegal arrest and

false imprisonment were barred by official immunity; and

(3) Sorrells’s IIED claim failed as a matter of law. The district court

denied summary judgment.

After careful review, and with the benefit of oral argument,

we (1) affirm the denial of summary judgment on the issue of

qualified immunity; (2) affirm the denial of summary judgment on

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the issue of official immunity; and (3) dismiss the IIED issue for

lack of appellate jurisdiction.

I. Background

A. Facts1

Sorrells was Rowland’s girlfriend and is the mother of one

of his children. Rowland, to help care for his child and Sorrells’s

other children, sometimes stayed at her house.

On August 28, 2017, Detective Smith arrested Rowland for

107 counts of animal cruelty and 107 counts of dogfighting. He

was convicted on all counts in April of 2018.

One fact relating to the investigation and arrest of Rowland

is relevant to Sorrells’s appeal. On August 8, 2017, during his

investigation of a location tied to Rowland, Animal Control

Director Jeff Crawford saw a female dog and “several puppies

housed in rabbit pens.” When Crawford returned later, the mother

dog and her puppies were no longer there.

On August 31, 2017, Smith visited Linda’s, a restaurant

where Sorrells worked, to interview her about Rowland’s crimes.

During this interview, Sorrells admitted to having the mother dog

and her seven puppies, and she told Smith that Rowland had given

her daughter the mother dog for her birthday in June and that the

dog had given birth to the puppies at her house in early August.

1 Because we evaluate this appeal at the summary judgment stage, we view

the facts in the light most favorable to Sorrells as the nonmovant. See Williams

v. Aguirre, 965 F.3d 1147, 1156 (11th Cir. 2020).

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Sorrells also told Smith that he could come by her house after work

to take the animals.

When Smith and another detective visited her home later

that evening, Sorrells gave consent for them to enter and search.

While searching the basement, Smith found a puppy in a shoebox.

Unbeknownst to Sorrells, her daughter had hidden the puppy there

“to keep the Officers from taking it.” The rest of the dogs “were

in a large wire cage” that “was clean” with “plenty [of ] room to

move around.” Smith called an employee from the Animal Control

Department to retrieve the dogs, and neither Smith nor the

employee told Sorrells that they believed “that the dogs were being

abused.” Rather, Smith told Sorrells the dogs “looked fine.”

Smith later testified in a deposition that he found nothing at

Sorrells’s house during that visit that “led [him] to believe that

[Sorrells] was complicit with Mr. Rowland[.]” But Smith said that

he thought the dogs in Sorrells’s home were being abused because

he did not believe the dogs had proper bedding, and because the

puppy in the basement had been isolated from its mother for

approximately ten to twenty minutes. 2 Smith also testified that he

questioned Sorrells’s ability to care for the dogs because they were

“laying in feces and urine.” 3 And Smith testified that he “was

2 Smith explained in his deposition that the puppy was too young to eat solid

foods and therefore would not “receiv[e] proper feeding” when separated

from its mother.

3 Smith, in the same deposition, contradicted himself by also testifying that he

did not find feces and urine in the dog crates. When evidence “conflicts at

summary judgment,” we have “an obligation to view all evidence and make

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provided pictures of the female [mother] dog upon her arrival at

[A]nimal [C]ontrol.” In Smith’s opinion, the pictures showed that

the mother dog “was severely underweight.”

While Rowland was in jail, Smith monitored his calls,

including his calls with Sorrells. From an August 30 call between

Rowland and Sorrells, Smith gathered two pieces of information

that he presented in his affidavit and application for a search

warrant for Sorrells’s home. First, according to Smith’s affidavit

and application for the search warrant, Rowland told Sorrells to go

to “Haney Farm Supply, Cedartown Feed and Seed, and to Ace

Hardware to speak with the guys or men about [Rowland] coming

in every day to get supplies,” revealing that Sorrells was familiar

with a dog food and supply shop. 4 Second, Sorrells said she had

Rowland’s cell phone, which, according to Smith, “contradict[ed]

what Sorrells told [officers] previously.” Based solely on Sorrells’s

knowledge of Rowland’s work contacts and her possession of the

cell phone, Smith was granted a search warrant for Sorrells’s home.

Officers searched Sorrells’s house on September 5, 2017,

finding the following items: “three black books with pictures of

all reasonable inferences in favor of the party opposing summary judgment.”

Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007)

(quotation omitted). Here, a reasonable inference in favor of Sorrells is that

Smith did not find feces and urine in the crates.

4 In Smith’s Statement of Material Facts, he stated that he viewed Sorrells’s

familiarity with Cedartown Feed and Seed, which sold dog food, as “an

important fact[.]” Smith did not explain why he viewed Sorrells’s familiarity

with a dog food shop as important.

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dogs”; 5 “seven types of veterinary medications, some in [the]

refrigerator, not issued by a veterinarian”; and “[25] photographs

of dogs, some with their mouths [] duct taped shut and being force

bred, labelled by name[.]” While the 25 photographs were in “a

Walmart photo envelope bearing [Sorrells’s] name,” Rowland’s

phone number was associated with the order. Sorrells speculated

that Rowland must have used her name to develop the photos.

Further, Sorrells testified in her deposition that, during this search

of her home, she handed Detective Smith a book called Dogs of

Velvet and Steel. 6

Sometime during the search, Smith and another detective

threatened to call the Department of Family and Children Services

(DFACS) to take Sorrells’s children from her and place them in

different homes. They said that they “would do it just to make [her]

mad[.]” As he was leaving, Detective Smith told Sorrells: “I’m

giving you until Thursday at 3:00pm to give me some information

5 In her deposition, Sorrells described the “three black books with pictures of

dogs” as “photo book[s] from Walmart,” and she “guess[ed]” that Rowland

had taken the pictures. The parties have not pointed us to any evidence

describing the conditions of the dogs in the pictures.

6 The record provides little information on this book. Sorrells testified in her

deposition that she did not know what was inside the book and that it “just

had a dog on the front[.]” She did not recall the type of dog but added that it

was not “a sweet, little poodle.”

In United States v. Stevens, the Supreme Court acknowledged that the book’s

author, Robert J. Stevens, “ran a business [called] ‘Dogs of Velvet and

Steel,’ . . . through which he sold videos of pit bulls engaging in dogfights and

attacking other animals.” 559 U.S. 460, 466 (2010).

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about [Rowland’s] dog fighting. If you don’t have anything, you

better make up something. If you don’t have any

information . . . I’m going to ‘lock you up.’”

According to Sorrells, she agreed to help Smith because she

wanted the officers to leave. But she never planned to set Rowland

up and later asked one of Rowland’s friends to alert him to Smith’s

demand. Smith learned about Sorrells’s warning to Rowland when

he intercepted a call in which “somebody [told Rowland], hey, I

talked to Candice. She’s suppose[d] to be trying to set you up on

the phone.”

On September 7, 2017, Smith applied for the first arrest

warrant he sought for Sorrells on 107 felony counts of being a party

to the crime7 of cruelty to animals under O.C.G.A. § 16-12-4(b). 8

The affidavit for arrest said:

7 Pursuant to O.C.G.A. § 16-2-20, anyone “concerned in the commission of a

crime is a party thereto and may be charged with and convicted of commission

of the crime.” O.C.G.A. § 16-2-20(a).

8 In relevant part, O.C.G.A. § 16-12-4(b) provides that an individual commits

the crime of animal cruelty when she causes the animal “physical pain,

suffering, or death,” or fails to provide adequate living conditions (e.g.,

sufficient “food, water, sanitary conditions, or ventilation”). O.C.G.A. §§ 16-

12-4(b)(1)–(2).

Although the affidavit for arrest labels the offense as a felony, we note that the

code section classifies the crime of cruelty to animals as a misdemeanor.

O.C.G.A. § 16-12-4(c). Georgia law says that a person “shall be guilty of a

felony” when they are “convicted of the offense of aggravated cruelty to

animals[.]” Id. § 16-12-4(e) (emphasis added). Sorrells was not arrested for

being a party to the crime of aggravated cruelty to animals.

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Said offense being described as [] 16-2-20 Felony, Party

To A Crime, 1 Count

Said Accused has committed the crime of party to the

crime of Cruelty to Animals when said accused said

she didn’t have any knowledge of another defendant

having that many dogs. Said Accused however had a

female dog that had recently given birth to seven

puppies who was extremely underweight and being

forced to lay in her own feces. Said Accused also aided

another defendant in committing over one hundred

counts of Cruelty to Animals.

This charge is for 107 counts. 9

Smith testified that he took out the first warrant on this date,

rather than after his initial house visit or at any other point in the

investigation, because Sorrells refused to help him investigate

Rowland, which “led [him] to believe she [was] complicit to all the

crimes[.]”

Detective Smith (alongside other officers) arrested Sorrells

at Linda’s during lunch on September 7 in front of her “customers,

co-workers, and [] managers.” According to Sorrells, Smith said, “I

told you if you didn’t help me I was going to lock you up.” Carrie

Blevins, another worker at Linda’s, stated in an affidavit that Smith

told her that Sorrells was arrested because she did not set Rowland

up as she agreed to, and she was “arrested . . . at her job so [the

9 Sorrells was charged with 107 counts because 107 dogs were found in

connection with Rowland’s arrest (excluding the puppies). But only the

mother dog and seven puppies were found in her home.

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officers] could embarrass her.” After Sorrells was arrested, Smith

personally called DFACS.

On September 25, Sorrells attended a bond hearing. During

the lunch break, Smith applied for a second arrest warrant against

Sorrells, this one for 107 felony counts of being a party to the crime

of dogfighting.10 The affidavit for arrest said:

Said offense being described as [] 16-2-20 Felony, Party To A

Crime, 1 Count

Said Accused is charged with Party to a Crime, 16-2-20

O.C.G.A., Said Accused is party to the crime of Dog

Fighting, 16-12-37, O.C.G.A[.], (107 counts) when said

accused helped and aided Mr. Devecio Rowland in fighting

dogs. Ms. Sorrells had veterinary care products, and dog

fighting literature at her residence . . . .

Sorrells was taken back to jail without bond, now charged with a

total of 214 counts—107 for being a party to the crime of cruelty

to animals (under the first affidavit for arrest) and 107 for being a

party to the crime of dog fighting (under the second affidavit for

arrest).

10 In short, O.C.G.A. § 16-12-37(b) provides that an individual commits the

felony crime of dogfighting when she engages in any number of activities

related to dogfighting, including possessing, training, or selling dogs to fight,

or causing dogs to fight one another. O.C.G.A. §§ 16-12-37(b)(1)–(5). The

second affidavit for arrest does not specify which part of O.G.C.A. § 16-12-37

Sorrells violated.

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In a declaration,11 Smith said that when he sought both

arrest warrants, he verbally provided the following details to the

magistrate judge (in addition to what he provided in the affidavits

for arrest): (1) Sorrells “was in possession of a mother dog and

several puppies that had been taken” from the initial crime scene;

(2) Sorrells “was in possession of several veterinary medicines,

some of which were prescription-only”; and (3) Sorrells’s name and

telephone number were on an envelope from Walmart containing

“photographs of dogs that were believed to be located in various

states of neglect at the other crime scenes.”

On November 6, 2017, Sorrells’s case went before a grand

jury. The grand jury declined to indict her and all charges against

her were dismissed. Sorrells was released on November 9, having

spent 63 days behind bars.

11 While Smith’s declaration is unsworn, it carries the same force as a sworn

affidavit under 28 U.S.C. § 1746 because he signed and dated the document,

and “declare[d] under penalty of perjury that” his statements “[are] true and

correct.” See Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 n.2 (11th Cir.

2016) (clarifying that “[a]n affidavit is made under oath,” while “a declaration

is not sworn, but is subject to the penalty of perjury” and that under § 1746

“declarations are afforded the same legal weight as affidavits, and are treated

accordingly” (alteration in original) (quotations omitted)); Roy v. Ivy, 53 F.4th

1338, 1348 (11th Cir. 2022) (“[U]nder § 1746, a declaration executed within the

United States will substitute for a sworn affidavit if the declarant dates and

subscribes the document as true under penalty of perjury in substantially the

following form: ‘I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on (date). (Signature).’”

(quoting 28 U.S.C. § 1746(2))).

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B. Procedural History

In 2019, Sorrells sued Smith (1) in his individual capacity

under 42 U.S.C. § 1983 for malicious prosecution 12 and (2) under

Georgia law for illegal arrest, false imprisonment, and IIED.13

Smith moved for summary judgment, arguing that (1) the

malicious prosecution claim failed as a matter of law and,

regardless, was barred by qualified immunity, (2) the illegal arrest

and false imprisonment claims under Georgia law were barred by

official immunity, and (3) the IIED claim failed as a matter of law.

The district court denied summary judgment on all three

issues. First, the court concluded that Sorrells “provided sufficient

evidence to establish her malicious prosecution claim.” The court

evaluated the two warrant applications and concluded that Smith

should have known that they failed to establish probable cause for

106 of the 107 felony counts they each charged. As for the single

count related to the mother dog, the court concluded that “there is

a question of fact as to whether [] Smith made an intentional false

statement to support this charge.” The court therefore found that

“the legal process justifying [Sorrells’s] . . . seizure . . . was

12 Sorrells originally raised a Fourth Amendment false arrest claim that the

parties later agreed is properly analyzed as a malicious prosecution claim.

13 Sorrells also raised other claims, including failure to intervene and

conspiracy claims under the Fourth Amendment and conversion of personal

property under Georgia law. But Sorrells either withdrew or abandoned those

claims in the district court. We therefore do not discuss those claims in this

appeal.

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constitutionally infirm” and that “her seizure would not otherwise

be justified without the legal process of the issued

warrant.” Accordingly, the court determined that Smith was not

entitled to qualified immunity on the malicious prosecution claim

because “Sorrells had a clearly established right to be free from a

seizure based on a warrant application that a reasonably well-

trained officer should have known was not supported by probable

cause.”

Second, addressing illegal arrest and false imprisonment

together, the district court concluded that state-law official

immunity did not bar either claim. Pointing to the record, “the

sheer number of felonies charged, and the timing of the second

warrant,” the district court found that Sorrells “presented sufficient

evidence to create a question of fact as to whether Detective Smith

acted with malice or a deliberate intent to cause her injury.”

Accordingly, the court denied summary judgment with respect to

the illegal arrest and false imprisonment claims.

Finally, addressing IIED, the court concluded that Sorrells

“presented sufficient evidence in support of her IIED claim to

proceed before a jury” and denied summary judgment with respect

to that claim.

This appeal followed.

II. Standard of Review

“Although we ordinarily have no jurisdiction to review the

denial of a motion for summary judgment, we can review denials

of qualified immunity and state-agent immunity under the

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collateral-order doctrine.” Aguirre, 965 F.3d at 1156. We review the

denial of qualified and official immunity de novo, “viewing the facts

in the light most favorable to the nonmovant.” Id. (quotations

omitted). “Summary judgment is warranted ‘if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Id. (quoting

Fed. R. Civ. P. 56(a)).

We review our jurisdiction de novo. McKusick v. City of

Melbourne, 96 F.3d 478, 482 (11th Cir. 1996).

III. Discussion

Smith presents three issues on appeal: (1) whether the

malicious prosecution claim under § 1983 is barred by qualified

immunity, (2) whether the illegal arrest and false imprisonment

claims under Georgia law are barred by official immunity, and

(3) whether the IIED claim fails as a matter of law. We take each

issue in turn.

(1) Whether the malicious prosecution claim is barred by qualified

immunity

Smith argues on appeal that he is entitled to qualified

immunity because he did not violate Sorrells’s Fourth Amendment

right to be free from unreasonable seizure as a result of a malicious

prosecution. See Chiaverini v. City of Napoleon, 144 S. Ct. 1745 (2024)

(discussing the contours of “what is often called a Fourth

Amendment malicious-prosecution claim under 42 U.S.C. § 1983”).

According to Smith, he did not violate the Fourth Amendment

because the information known to him at the time of the two

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affidavits for arrest against Sorrells amounted to actual probable

cause, if not arguable probable cause.

Qualified immunity protects government officials from

being sued in their individual capacities when they are performing

discretionary functions. Aguirre, 965 F.3d at 1156. “To determine

whether qualified immunity applies, we engage in a burden-

shifting analysis.” Brooks v. Miller, 78 F.4th 1267, 1280 (11th Cir.

2023). The first step requires a defendant to show that “he acted

within his discretionary authority.” Aguirre, 965 F.3d at 1156

(quotations omitted). Once the defendant makes that showing, the

burden shifts to the plaintiff to prove that qualified immunity does

not apply. Id. To show that qualified immunity does not apply, “a

plaintiff must . . . prove that the defendant violated a constitutional

right that was clearly established when the violation allegedly

occurred.” Id. (quotations omitted). “Clearly established means

that, at the time of the officer’s conduct, the law was sufficiently

clear that every reasonable official would understand that what he

is doing is unlawful.” Id. (quotations omitted).

The parties do not dispute that Smith acted within his

discretionary authority. And Smith has waived any issue

concerning whether he violated “clearly established” law at the

time of the alleged violation because he failed to raise it in his

opening brief on appeal. 14 Sapuppo v. Allstate Floridian Ins. Co., 739

14 Smith’s reply brief discusses whether the any-crime rule was “clearly

established” at the time of the facts of his case, an issue we will address in our

discussion of probable cause in the malicious prosecution context. But any

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F.3d 678, 682–83 (11th Cir. 2014). The parties therefore focus—and

so do we—on whether Smith violated Sorrells’s Fourth

Amendment right to be free from unreasonable seizure as a result

of a malicious prosecution.

We first briefly discuss the details of the underlying

prosecution—the 214 counts Smith charged against Sorrells, which

formed the basis for her seizure—before discussing whether it

amounted to a malicious prosecution.

A. The underlying prosecution

Smith charged Sorrells with 214 counts under Georgia law

in the two affidavits for arrest: (1) 107 counts of being party to the

felony crime of cruelty to animals under the first affidavit for arrest;

and (2) 107 counts of being party to the felony crime of dogfighting

under the second affidavit for arrest. The two affidavits for arrest

invoke Georgia’s party to a crime statute, which says that anyone

“concerned in the commission of a crime is a party thereto and

may be charged with and convicted of commission of the crime.”

O.C.G.A. § 16-2-20(a). “Georgia’s party-to-a-crime statute is a

catch-all statute that indicates a person can be convicted as a

principal to a crime whether [she] directly committed the crime,

aided and abetted its commission, or caused it to be committed.”

United States v. Roosevelt Coats, 8 F.4th 1228, 1250 (11th Cir. 2021).

Specifically, the Georgia Code provides that an individual “is

other arguments concerning whether Smith violated “clearly established” law

are neither raised by Smith nor addressed in this opinion.

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concerned in the commission of a crime only if [she]” does one of

the following: (1) “[d]irectly commits the crime”; (2) intentionally

causes another to commit the crime “under such circumstances

that the other person is not guilty of any crime either in fact or

because of legal incapacity”; (3) aids or abets in the crime; or

(4) “[i]ntentionally advises, encourages, hires, counsels, or procures

another to commit the crime.” O.C.G.A. § 16-2-20(b). Smith’s

affidavits did not reference whether Sorrells was seized as a

principal (the person who directly committed the crime) or as an

aider and abettor of the crime, so “we must assume that [Sorrells]

was . . . an aider and abettor,” Roosevelt Coats, 8 F.4th at 1243, which

“encompasses the concept of helping in the commission of a

crime,” Sharpe v. State, 531 S.E.2d 84, 89 (Ga. 2000).

Pursuant to O.C.G.A. § 16-2-21, “[a]ny party to a crime who

did not directly commit the crime may be indicted, tried,

convicted, and punished for commission of the crime upon proof

that the crime was committed and that [she] was a party thereto[.]”

Id. § 16-2-21; see also Brinson v. State, 413 S.E.2d 443, 444 (Ga. 1992)

(stating O.C.G.A. § 16-2-21 “provides that one who is a party to the

crime may be indicted, convicted and punished for that crime upon

proof that [she] was a party to the crime”). Because Rowland was

convicted for the crimes of animal cruelty and dogfighting, we

assume that there is “proof that the crime[s] [were] committed”

and focus our analysis on whether Sorrells was a party to those

crimes. See O.C.G.A. § 16-2-21.

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The Supreme Court of Georgia has explained that to

establish that one was a party to a crime, “[t]here must be some

evidence showing that the defendant shared a common criminal

intent to commit the crimes in question with the actual

perpetrators.” Higuera-Guiterrez v. State, 779 S.E.2d 288, 290 (Ga.

2015). “Criminal intent may be inferred from [a person’s] conduct

before, during, and after the crime.” Id. (emphasis added). And we

have stated that O.C.G.A. § 16-2-20 requires that “a defendant

affirmatively act in furtherance of a crime to be convicted as a party

to the crime[.]” Roosevelt Coats, 8 F.4th at 1250 (emphasis added).

B. Sorrells’s malicious prosecution claim

Based on the 214 counts against her, Sorrells was arrested

and held in jail. She asserts a § 1983 claim, arguing that Smith

violated “[her] clearly established right under the Fourth

Amendment to be free from an unreasonable seizure as a result of

a malicious prosecution.” Aguirre, 965 F.3d at 1157.

“We can simplify our standard for malicious prosecution

into two elements: the plaintiff must prove (1) that the defendant

violated [her] Fourth Amendment right to be free from seizures

pursuant to legal process and (2) that the criminal proceedings

against [her] terminated in [her] favor.”15 Luke v. Gulley, 975 F.3d

1140, 1144 (11th Cir. 2020). Sorrells can easily prove the second

15 This malicious prosecution claim differs from a false arrest or imprisonment

claim, which involves a seizure that takes place without legal process, such as

through a warrantless arrest. Aguirre, 965 F.3d at 1157–58.

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element because a grand jury declined to indict her and all charges

against her were dismissed. So we focus our analysis on the first

element.

Under the first element, to establish that Smith violated her

Fourth Amendment right to be free from seizures pursuant to legal

process, Sorrells “must establish (1) that the legal process justifying

[her] seizure was constitutionally infirm and (2) that [her] seizure

would not otherwise be justified without legal process.” Aguirre,

965 F.3d at 1165. Because Smith does not contest the district court’s

finding that Sorrells’s seizure would not otherwise be justified, we

solely evaluate whether her seizure was constitutionally infirm.

In this inquiry, we ask “whether ‘the judicial officer issuing

such a warrant [was] supplied with sufficient information to

support an independent judgment that probable cause exist[ed] for

the warrant.’” 16 Id. at 1162 (emphasis added) (alteration in original)

(quoting Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560,

564 (1971)). Sorrells can prove that her seizure was constitutionally

infirm if she makes one of two showings. First, Sorrells can show

that Smith “intentionally or recklessly made misstatements or

omissions necessary to support the warrant.” Id. If Sorrells has

“presented a genuine dispute of fact about whether [her] seizure

was unconstitutional,” “we assume that the statement was false

and consider (1) whether it was made either intentionally or in

16 This warrant-based seizure inquiry differs from our inquiry into warrantless

arrests, which “concern[s] whether the facts known to the arresting officer

establish probable cause[.]” Aguirre, 965 F.3d at 1162–63 (emphasis added).

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reckless disregard for the truth and, if so, (2) whether, after deleting

the misstatement[,] the affidavit is insufficient to establish probable

cause.” Id. (quotations omitted).

Second, Sorrells can show that Smith “should have known

that his [warrant] application failed to establish probable cause[.]”

Id. Probable cause “depends on the totality of the

circumstances[.]” District of Columbia v. Wesby, 583 U.S. 48, 57

(2018) (quotations omitted). It “is not a high bar”; “[i]t requires

only a probability or substantial chance of criminal activity, not an

actual showing of such activity.” Id. (quotations omitted). But

“conclusory [statements] clearly [are] insufficient to establish

probable cause.” Kelly v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994)

(quoting Garmon v. Lumpkin Cnty., 878 F.2d 1406, 1408–09 (11th Cir.

1989)).

As an initial matter, we must determine whether Smith

needed probable cause for all of the specific crimes listed in the

affidavit, or if Smith only needed probable cause for “any crime.”

Under the “any-crime” rule, officers are insulated “so long as

probable cause existed to arrest the suspect for some crime, even if

it was not the crime the officer thought or said had occurred.”

Aguirre, 965 F.3d at 1158. At the time of Smith’s conduct in 2017,

the law was unsettled as to whether the any-crime rule applied to

claims of malicious prosecution. See id. at 1159 (discussing

unsettled state of the law before 2020). We had assumed, without

deciding, in several cases that the any-crime rule applied to Fourth

Amendment malicious prosecution claims. See Paez v. Mulvey, 915

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20 Opinion of the Court 21-13568

F.3d 1276, 1285–86 (11th Cir. 2019). Only after Sorrells’s arrest did

we (and later the Supreme Court) hold that the “any-crime” rule

does not apply to malicious prosecution claims—meaning that

officers need to show probable cause for each of the exact crimes

the officer said occurred in order to pass muster under the Fourth

Amendment. Chiaverini, 144 S. Ct. at 1750–51 (the U.S. Supreme

Court’s holding that the “any-crime” rule does not apply to claims

of malicious prosecution); Aguirre, 965 F.3d at 1162 (this Court’s

holding that “the any-crime rule does not apply to claims of

malicious prosecution”). Because the qualified immunity analysis

focuses on whether the law was clearly established at the time of

the officer’s actions, Aguirre, 965 F.3d at 1156, and, as of 2017, the

law on the application of the any-crime rule was at best unsettled,

we accept (for purposes of this opinion only) that the any-crime

rule applied to the claim of malicious prosecution brought in 2017

against Smith. See Paez, 915 F.3d at 1285–86 (stating our Court’s

prior assumption that the any-crime rule applied to malicious

prosecution claims). Under this assumption, to prevail, Sorrells

must show that probable cause does not support even a single

count that Smith raised against her.

i. Whether the first affidavit for arrest was

constitutionally infirm

The first affidavit for Sorrells’s arrest was for 107 counts of

being a party to the felony crime of cruelty to animals:

Said offense being described as [] 16-2-20 Felony, Party

To A Crime, 1 Count

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Said Accused has committed the crime of party to the

crime of Cruelty to Animals when said accused said

she didn’t have any knowledge of another defendant

having that many dogs. Said Accused however had a

female dog that had recently given birth to seven

puppies who was extremely underweight and being

forced to lay in her own feces. Said Accused also aided

another defendant in committing over one hundred

counts of Cruelty to Animals.

This charge is for 107 counts.

We analyze the warrant line by line to evaluate whether

Smith “intentionally or recklessly made misstatements or

omissions necessary to support the warrant,” or whether Smith

should have known that the information presented to the

magistrate judge failed to establish probable cause. Aguirre, 965

F.3d at 1165.

The first sentence simply states that Sorrells denied having

knowledge of Rowland owning a lot of dogs. It does not establish

anything remotely resembling probable cause. For example, no

other evidence is presented that could tie Sorrells to Rowland’s

crimes. “[S]uch . . . conclusory [statements] clearly [are]

insufficient to establish probable cause.” Kelly, 21 F.3d at 1555

(quotations omitted); Garmon, 878 F.2d at 1408 (statement that “to

the best of [affiant’s] knowledge and belief [plaintiff]

did . . . commit the offense of false report of a crime” was

“clearly . . . insufficient to establish probable cause”).

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22 Opinion of the Court 21-13568

The second sentence states that Sorrells “had a female dog

that had recently given birth to seven puppies who was extremely

underweight and being forced to lay in her own feces.” On its face,

this sentence might appear to present probable cause to arrest

Sorrells for being a party to animal cruelty. But there is a genuine

dispute of material fact as to whether that sentence—which relates

to just one of the first affidavit for arrest’s 107 counts against her—

is false. See Aguirre, 965 F.3d at 1167. Viewing the evidence in the

light most favorable to Sorrells as the nonmovant, there is evidence

in the record that the mother dog and puppies were not being

abused and lived in clean, spacious conditions—and that Smith had

observed as much when he visited Sorrells’s home on August 31.

From this evidence, a reasonable jury may conclude that Smith’s

assertion in his September 7 affidavit for arrest about the female

dog—that she “was extremely underweight and [was] forced to lay

in her own feces”—was false. Smith’s contention merely presents

“a genuine dispute of material fact” about whether the dog was

underweight in Sorrells’s care, and ultimately, “about whether the

warrant was invalid” due to an “intentional[] or

reckless[] . . . misstatement,” precluding summary judgment. Id.

at 1165, 1167.

Because Sorrells has “presented a genuine dispute of fact”

regarding the mother dog, implicating “whether [her] seizure was

unconstitutional,” “we assume that the statement was false and

consider [] whether it was made either intentionally or in reckless

disregard for the truth[.]” Id. at 1165 (alterations adopted)

(quotations omitted).

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21-13568 Opinion of the Court 23

It is not difficult to conclude that it was. A jury could infer

that Smith’s assumed false statements about the mother dog in the

second sentence were made intentionally or in reckless disregard

for the truth as retaliation for Sorrells’s refusal to help Smith

investigate Rowland. This conclusion is particularly easy to reach

given Smith’s threat to arrest Sorrells if she did not provide

information on Rowland’s crimes, the timing of Sorrells’s arrest

after she alerted Rowland to Smith’s instructions to provide “some

information about [Rowland’s] dog fighting,” and Blevins’s affidavit

corroborating that Smith arrested Sorrells for not setting up

Rowland. Additionally, Smith’s own deposition reveals that he

applied for the arrest warrant because Sorrells would not help him

find incriminating information on Rowland. From this evidence, a

reasonable jury could infer that Smith made the assumed false

statement about the mother dog in the first affidavit for arrest

“intentionally or in reckless disregard for the truth,” and therefore

the second sentence is constitutionally infirm. Id.

We turn to the third and final sentence, which merely says

that Sorrells “aided another defendant in committing over one

hundred counts of Cruelty to Animals.” This conclusory sentence

does not salvage the warrant. It fails to mention any dogs or

connect Sorrells to any dogs. Again, “such . . . conclusory

[statements] clearly [are] insufficient to establish probable cause.”

Kelly, 21 F.3d at 1555 (quotations omitted); Garmon, 878 F.2d at

1408.

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24 Opinion of the Court 21-13568

So, viewing all three sentences together, and deleting the

statement about the mother dog, a genuine dispute of fact exists as

to whether Smith “should have known that his application failed to

establish probable cause” for all of the 107 counts against Sorrells

in the first affidavit for arrest. Aguirre, 965 F.3d at 1165.

Smith urges us also to consider three pieces of information

that he allegedly verbally provided the magistrate judge when

applying for the first arrest warrant:17 (1) that Sorrells “was in

possession of a mother dog and several puppies that had been

taken” from the initial crime scene; (2) that Sorrells “was in

possession of several veterinary medicines, some of which were

prescription-only”; and (3) that Sorrells’s name and telephone

number were on an envelope from Walmart containing

“photographs of dogs that were believed to be located in various

states of neglect at other crime scenes.”

17 Our case law broadly states that “judicial review of the sufficiency of an

affidavit for the issuance of a warrant must be strictly confined to the

information brought to the magistrate’s attention.” W. Point-Pepperell, Inc. v.

Donovan, 689 F.2d 950, 959 (11th Cir. 1982). However, many of our cases

evaluate the facts and circumstances brought to the magistrate’s attention in

a warrant affidavit. See, e.g., Luke, 50 F.4th at 96. We need not decide whether

it is appropriate to evaluate information verbally imparted outside of the

written affidavits because the parties do not dispute that we should consider

this category of information and because it does not change the result. So, for

purposes of this opinion, we consider the information that Smith attests that

he verbally provided to the magistrate judge when he sought both arrest

warrants.

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21-13568 Opinion of the Court 25

These three oral statements fail to establish probable cause

because they lack any showing of intent or affirmative action on

behalf of Sorrells to suggest that she was a party to Rowland’s

crimes under Georgia precedent. See Higuera-Guiterrez, 779 S.E.2d

at 290; Roosevelt Coats, 8 F.4th at 1250. Furthermore, viewing the

evidence in the light most favorable to Sorrells, the veterinary care

products and Walmart envelope could have easily belonged to

Rowland, who sometimes stayed in her home. Sorrells testified

that the phone number on the Walmart envelope belonged to

Rowland, so Rowland could have used her name to develop the

photos, as Sorrells claimed, and left them at her house. Smith even

admits on appeal that “[Sorrells’s] mere possession of the

photographs [did] not mean that she and Rowland share[d]

criminal intent[.]” Furthermore, veterinary care products would

seem to help rather than harm the animals in Sorrells’s care.

Accordingly, this information does not show “a substantial chance

of criminal activity” on Sorrells’s part, and therefore falls short of

meeting the probable cause requirement. Wesby, 583 U.S. at 57

(quotations omitted).

Because of the foregoing, we conclude that the first affidavit

for arrest, even when supplemented by the three facts verbally

provided by Smith to the magistrate judge, failed to establish

probable cause for any of the 107 counts against Sorrells and

therefore was “constitutionally infirm.” Aguirre, 965 F.3d at 1165.

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26 Opinion of the Court 21-13568

ii. Whether the second affidavit for arrest was

constitutionally infirm

Next, we turn to the second affidavit for arrest, which Smith

presented to the magistrate judge over a lunch break during

Sorrells’s bond hearing for 107 counts of being a party to the felony

crime of dogfighting:

Said offense being described as [] 16-2-20 Felony, Party

To A Crime, 1 Count

Said Accused is charged with Party to a Crime, 16-2-

20 O.C.G.A., Said Accused is party to the crime of

Dog Fighting, 16-12-37, O.C.G.A[.], (107 counts)

when said accused helped and aided Mr. Devecio

Rowland in fighting dogs. Ms. Sorrells had veterinary

care products, and dog fighting literature at her

residence . . . .

We again start with the first sentence, which states that Sorrells

“helped and aided Mr. Devecio Rowland in fighting dogs.” Smith

should have known that this sentence failed to establish probable

cause because it lacks facts and is therefore conclusory. See Kelly, 21

F.3d at 1555; Garmon, 878 F.2d at 1408.

The second sentence, which says that “Sorrells had

veterinary care products[] and dog fighting literature” 18 at her

18 Smith’s reference to “dogfighting literature” likely refers to the book titled

Dogs of Velvet and Steel that Sorrells handed to Detective Smith during a search

of her house. While we do not opine on whether or not the book was in fact

dogfighting literature, we accept for purposes of this opinion that Smith

labeled it as such in his affidavit for the second arrest warrant.

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21-13568 Opinion of the Court 27

home, is also insufficient to support probable cause for any count

for being a party to the crime of dogfighting, let alone 107 counts.

Smith should have known that, pursuant to Georgia law, the

information that Sorrells possessed veterinary medication and dog

fighting literature is not enough to show probable cause that

Sorrells was party to a crime. This sentence does not demonstrate

Sorrells’s “intent to commit the crimes in question” with Rowland,

Higuera-Guiterrez, 779 S.E.2d at 290, or affirmative action “in

furtherance of a crime,” Roosevelt Coats, 8 F.4th at 1249–50. The

sentence therefore falls short of showing “a substantial chance of

criminal activity,” or probable cause that Sorrells was party to

Rowland’s crimes. Wesby, 583 U.S. at 57 (quotations omitted).

Just as he did for the first affidavit for arrest, Smith verbally

provided the same three additional details to the magistrate judge

alongside his second affidavit for arrest: (1) that Sorrells “was in

possession of a mother dog and several puppies that had been

taken” from the initial crime scene; (2) that Sorrells “was in

possession of several veterinary medicines, some of which were

prescription-only”; and (3) that Sorrells’s name and telephone

number were on an envelope from Walmart containing

“photographs of dogs that were believed to be located in various

states of neglect at other crime scenes.” These three details fail to

satisfy probable cause for the same reasons already stated in our

discussion under the first affidavit for arrest.

Accordingly, the second affidavit for arrest was

constitutionally infirm because Smith “should have known that his

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28 Opinion of the Court 21-13568

application failed to establish probable cause” for each of the 107

counts against Sorrells. Aguirre, 965 F.3d at 1165.

C. Smith’s counterarguments

Smith resists our reliance on Aguirre to conclude his two

affidavits for arrest were constitutionally infirm, and in doing so he

advances two points. First, he contends that cases before Aguirre

looked to the officer’s knowledge, rather than the information the

officer actually presented to the magistrate judge, to determine

whether probable cause existed. Smith argues that, because he

applied for the two arrest warrants before Aguirre was decided, we

should evaluate the malicious prosecution claim through the lens

of Smith’s knowledge. His approach, he argues, would lead us to

conclude that the information known to him at the time of the

affidavits for arrest amounts to probable cause.

Even assuming that Smith possessed information that would

lead us to such a conclusion on probable cause, our analysis does

not turn on the information known to him. As Smith himself

acknowledges, Aguirre “sought to harmonize prior malicious

prosecution precedents within the Eleventh Circuit” (emphasis

added). It did not create a new rule. Although some of our

previous decisions do say that probable cause for malicious

prosecution “turns on the facts and circumstances within the

[arresting] officer’s knowledge,” our earliest cases “look only to the

information before the judicial officer that issued the legal process

for the seizure.” Id. at 1158 (quotations omitted); see id. at 1163

(explaining the same). As we explained in Aguirre, the prior panel

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21-13568 Opinion of the Court 29

precedent rule dictates that we “follow the earliest precedent that

reached a binding decision on the issue.” Id. at 1163. And our

“earliest decisions asked whether the judicial officer who made the

probable-cause determination” was presented with “sufficient,

truthful information to establish probable cause.” Id. (emphasis

added). So “an otherwise insufficient affidavit cannot be

rehabilitated with information possessed by the officer when he

sought the warrant but not disclosed to the issuing magistrate.” Id.

at 1162 (alterations adopted) (quoting Whiteley, 401 U.S. at 565 n.8).

Smith’s argument falls short, and Aguirre controls. 19

Smith also resists our conclusion that both affidavits for

arrest were constitutionally infirm by arguing that we should give

“great deference” to the magistrate judge’s finding on probable

cause. But “[d]eference to the magistrate [judge] . . . is not

boundless.” United States v. Leon, 468 U.S. 897, 914 (1984). For

example, such deference “does not preclude inquiry into the

19 Smith also argues that he at least had arguable probable cause, a lesser

standard than actual probable cause, which exists when “a reasonable officer

presented with the corrected version of [the] affidavit could reasonably but

mistakenly conclude that probable cause is present to suspect [the plaintiff].”

Sylvester v. Fulton Cnty. Jail, 94 F.4th 1324, 1331 (11th Cir. 2024) (quotations

omitted). But even if we considered information known to Smith (but not

presented to the magistrate judge)—for example, information tied to

Rowland’s crimes and Sorrells’s relationship with Rowland—that information

would not lead an officer to “reasonably but mistakenly conclude that

probable cause is present[.]” Id. The information he points to does not save

the deficiencies in both affidavits for arrest addressed above, as it would still

lead to a seizure in violation of the Fourth Amendment. See id. at 1332.

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30 Opinion of the Court 21-13568

knowing or reckless falsity of the affidavit on which that

determination was based.” Id.; see also Aguirre, 965 F.3d at 1158 (“A

Fourth Amendment violation . . . occurs ‘when legal process itself

goes wrong—when, for example, a judge’s probable-cause

determination is predicated solely on a police officer’s false

statements.’” (quoting Manuel v. City of Joliet, 580 U.S. 357, 367

(2017))). And reviewing courts will not defer to a magistrate

judge’s “mere ratification of the bare conclusions of others.” Leon,

468 U.S. at 915 (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)).

Because Smith based his two affidavits for arrest on misstatements

or omissions made intentionally or recklessly, and because Smith’s

bare conclusions were not sufficient to support the magistrate

judge’s determinations of probable cause, no deference is

warranted to the magistrate judge’s finding on probable cause.

****

We hold that “[Sorrells] has met [her] burden to establish a

genuine dispute of fact about whether [s]he was seized in violation

of the Fourth Amendment.” Aguirre, 965 F.3d at 1167. We

therefore affirm the denial of summary judgment on the issue of

qualified immunity.

(2) Whether the illegal arrest and false imprisonment claims under

Georgia law are barred by official immunity

Smith also argues that the district court improperly denied

his motion for summary judgment on the state-law claims based

on official immunity. He summarily argues that official immunity

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21-13568 Opinion of the Court 31

bars the illegal arrest and false imprisonment claims against him20

“[b]ecause [Sorrells] lacks evidence to support actual malice[.]”

Official immunity is Georgia’s “analogue to qualified

immunity.” Smith v. LePage, 834 F.3d 1285, 1297 (11th Cir. 2016).

Evaluating official immunity requires “inquir[ing] into [Smith’s]

subjective intent[.]” Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir.

2007) (applying Georgia law). State officers and employees “may

be liable for injuries and damages if they act [1] with actual malice

or [2] with actual intent to cause injury in the performance of their

official functions.” Ga. Const., art. I, § 2, ¶ IX(d) (1983); see also Patel

v. Lanier Cnty. Ga., 969 F.3d 1173, 1191 (11th Cir. 2020) (“Under

Georgia law, a public officer or employee may be personally

liable . . . for . . . acts performed with malice or an intent to injure.”

(quoting Grammens v. Dollar, 697 S.E.2d 775, 777 (Ga. 2010))).

The Supreme Court of Georgia has held that “‘actual

malice’ requires a deliberate intention to do wrong.” Adams v.

Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999) (quoting Merrow v.

Hawkins, 467 S.E.2d 336, 337 (Ga. 1996)). “A ‘deliberate intention

to do wrong’ . . . must be the intent to cause the harm suffered by

20 On appeal, Smith actually argues that official immunity bars “all state law

claims” against him. But Smith only argued below that official immunity bars

his illegal arrest and false imprisonment claims. So any argument regarding

his IIED claim as it pertains to official immunity is raised for the first time on

appeal, and we do not address it. See Access Now, Inc. v. Sw. Airlines Co., 385

F.3d 1324, 1335 (11th Cir. 2004) (stating that “[w]e will not address a

claim . . . that is being raised for the first time on appeal, without any special

conditions” present).

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32 Opinion of the Court 21-13568

the plaintiffs.” Murphy v. Bajjani, 647 S.E.2d 54, 59 (Ga. 2007).

“Proof of ill will alone is not enough.” Hardigree v. Lofton, 992 F.3d

1216, 1233 (11th Cir. 2021).

The district court properly denied summary judgment on

the issue of official immunity because Sorrells presented sufficient

evidence to create a question of fact as to whether Smith acted with

actual malice—i.e., a deliberate intention to arrest Sorrells for a

crime she did not commit. Adams, 520 S.E.2d at 898. The record,

viewed in the light most favorable to Sorrells, shows that Smith told

Sorrells that he would “lock [her] up”—and ultimately did so—for

not helping him investigate Rowland, rather than for being

involved in Rowland’s crimes of cruelty to animals and dogfighting.

In fact, Smith testified that he took the warrant out only after he

understood that Sorrells refused to help him investigate Rowland.

From this evidence, and given the lack of probable cause, a

reasonable jury could find that Smith applied for the arrest

warrants with the deliberate “intent to do a wrongful act—to

imprison [Sorrells] unlawfully” in retaliation for her refusal to help

him investigate Rowland. Jordan, 487 F.3d at 1357 (denying

summary judgment on official immunity where plaintiff presented

evidence that defendant pursued an arrest warrant to “collect a civil

debt” to “teach [the plaintiff] a lesson”); see also Hardigree, 992 F.3d

at 1233 (stating that the “jury could find malice” where plaintiff

asserted enough facts to support that an officer tased him and

arrested him on charges that “had no basis”); Lagroon v. Lawson, 759

S.E.2d 878, 883 (Ga. Ct. App. 2014) (“[A] jury reasonably could infer

that [officers] arrested [plaintiffs] and took steps to secure grand

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21-13568 Opinion of the Court 33

jury charges against them despite knowing that they had not

committed any offenses, thereby establishing that the officers

deliberately intended to do a wrongful act.” (alterations adopted)

(quotations omitted)). 21

Because of the foregoing, we affirm the district court’s

denial of summary judgment on the issue of official immunity for

the state-law claims of illegal arrest and false imprisonment.

(3) Whether the IIED claim fails as a matter of law

Smith argues on appeal that Sorrells’s IIED claim fails as a

matter of law and that the district court erred in denying him

summary judgment with respect to that claim. The IIED claim,

however, presents a jurisdictional problem in this Court and,

accordingly, we dismiss the issue raised on appeal.

21 Although we end our official immunity analysis here, we also note that a

reasonable jury could find that Smith applied for the arrest warrants “with

actual intent to cause injury in the performance of [his] official functions.” Ga.

Const., art. I, § 2, ¶ IX(d). “The phrase actual intent to cause injury . . . mean[s]

an actual intent to cause harm to the plaintiff, not merely an intent to do the

act purportedly resulting in the claimed injury.” Kidd v. Coates, 518 S.E.2d 124,

125 (Ga. 1999) (quotations omitted).

Sorrells presented sufficient evidence to create a question of fact as to whether

Smith acted with an actual intent to harm her by putting her in jail and

removing her from her children. See id. For example, according to Sorrells,

Smith threatened to call DFACS “just to make [her] mad[.]” And after Sorrells

was arrested, Smith personally called DFACS. Further, Blevins stated that

Smith told her that he arrested Sorrells at work to “embarrass her.” So, for

this additional reason, the district court properly denied summary judgment

on the issue of official immunity.

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34 Opinion of the Court 21-13568

“We have a threshold obligation to ensure that we have

[appellate] jurisdiction,” even where no party has raised the issue.

Corley v. Long-Lewis, Inc., 965 F.3d 1222, 1227 (11th Cir. 2020).

“Under the pendent appellate jurisdiction doctrine, we may

address otherwise nonappealable orders if they are inextricably

intertwined with an appealable decision or if review of the former

decision is necessary to ensure meaningful review of the latter.”

Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (alterations

adopted) (quotations omitted). Further, “the exercise of pendent

appellate jurisdiction is discretionary, and we have not been shy

about declining to indulge in it.” Jackson v. City of Atlanta, 97 F.4th

1343, 1354 (11th Cir. 2024); see also King v. Cessna Aircraft Co., 562

F.3d 1374, 1379 (11th Cir. 2009) (“[T]he Supreme Court has

signaled that pendent appellate jurisdiction should be present only

under rare circumstances.”).

Because we may resolve the issues of qualified immunity

and official immunity without reaching the merits of the IIED

claim, the IIED issue is not “sufficiently interwoven . . . to fall

within [our] pendent appellate jurisdiction.” Harris v. Bd. of Educ.

of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997); see Valderrama v.

Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015) (“Because we

may resolve the qualified immunity issue without reaching the

merits of the state law claims . . . , we lack jurisdiction to reach

those claims.” (quotations omitted)). And the issue of IIED, on the

one hand, and the issues of qualified and official immunity, on the

other, are not essential to each other. Hudson, 231 F.3d at 1294.

We therefore lack jurisdiction to reach the IIED claim and dismiss

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21-13568 Opinion of the Court 35

this issue. As a result, the IIED claim remains pending in the district

court.

IV. Conclusion

For the above reasons, we (1) affirm the denial of summary

judgment on the issue of qualified immunity for the malicious

prosecution claim, (2) affirm the denial of summary judgment on

the issue of official immunity for the state-law claims of illegal

arrest and false imprisonment, and (3) dismiss the IIED issue for

lack of appellate jurisdiction.

AFFIRMED IN PART, DISMISSED IN PART.