Deshawn Gervin v. Pamela Florence

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 1 of 55

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11452

____________________

DESHAWN GERVIN,

Plaintiff-Appellee,

versus

PAMELA FLORENCE,

TANDRIA MILTON,

In their individual capacities,

Defendants-Appellants,

HOKE HAMPTON,

In her individual capacity,

Defendant.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 2 of 55

2 Opinion of the Court 23-11452

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 1:21-cv-00067-LAG

____________________

Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges.

ROSENBAUM, Circuit Judge:

DeShawn Gervin has not been a model citizen. But he did

do at least one thing right. As Gervin’s sole condition of probation,

a Georgia court kicked him out of its jurisdiction and banned him

from returning. And Gervin followed that instruction. He moved

to North Carolina.

But he didn’t stay out of trouble there, either. North Caro-

lina imprisoned Gervin for breaking and entering, larceny, and rob-

bery and kidnapping.

Soon after, a probation officer with the Georgia Department

of Community Supervision learned of Gervin’s North Carolina

transgressions. And she sought a warrant for his arrest in Georgia.

In support, she swore that Gervin had “failed to report” and “ab-

sconded from probation supervision” in violation of his probation

conditions. Another probation officer under her supervision then

petitioned to revoke Gervin’s probation based on his failure to re-

port.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 3 of 55

23-11452 Opinion of the Court 3

After the probation officer obtained the warrant, police of-

ficers in North Carolina arrested Gervin on the Georgia warrant.

Then they extradited Gervin to Georgia. And Gervin spent 104

days in jail waiting for the court to resolve his probation-revocation

charges.

But as we’ve recounted, the Georgia court’s only probation

condition for Gervin required him never to reenter its judicial cir-

cuit. And that’s the one thing he had not done. So however else

Gervin had broken the law, he had not violated his Georgia proba-

tion.

For that reason, the Georgia court concluded that the State

failed to show that Gervin had violated his probation. So it ordered

Gervin’s release.

After his release, Gervin sued the two probation officers un-

der 42 U.S.C. § 1983. He alleged violations of his Fourth, Eighth,

and Fourteenth Amendment rights. The probation officers moved

for summary judgment, and the district court denied their motion.

We now affirm the district court’s ruling. When we view

the evidence in the light most favorable to Gervin as the non-mov-

ing party, the probation officers recklessly swore that Gervin had

violated his Georgia probation, even though it was clear that he

had not. That violated Gervin’s Fourth and Fourteenth Amend-

ment right to be free from unreasonable seizures because the offic-

ers’ misconduct caused his arrest and prolonged confinement. And

because every reasonable state official would have understood that

the Fourth and Fourteenth Amendments prohibit recklessly

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 4 of 55

4 Opinion of the Court 23-11452

making false statements and material omissions to obtain an arrest

warrant and prosecute a probation violation, the probation officers

are not entitled to qualified immunity.

I. BACKGROUND

A. Factual Background

In January 2012, Plaintiff-Appellee DeShawn Gervin pled

guilty to attempted burglary in violation of Georgia law. The

Georgia state court sentenced him to one year of incarceration and

nine years of probation.

As especially relevant here, the court imposed only one con-

dition of probation: Gervin could not return to the South Georgia

Judicial Circuit, which includes Mitchell, Baker, Calhoun, Decatur,

and Grady Counties. The court did not add any “general” condi-

tions of probation. So for instance, it did not require Gervin to

report to a probation officer or to inform a probation officer of a

change in residence. Indeed, the court did not check the boxes next

to those requirements on Gervin’s sentencing form.1

Within a month of Gervin’s guilty plea, the jail released

Gervin. A sheriff’s deputy then escorted him (in restraints) to a bus

station. At the sheriff’s direction, the deputy watched Gervin board

1 See Jones v. State, 282 Ga. 784, 787 (2007) (concluding no condition of proba-

tion imposed where “[a]lthough the pre-printed sentencing form provided a

list of general and special conditions of probation . . . , the box next to the

[relevant] condition was not checked”).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 5 of 55

23-11452 Opinion of the Court 5

a bus bound for Missouri and waited until it pulled away with

Gervin onboard. After that, Gervin moved to North Carolina.

Defendant-Appellant Pamela Florence, a probation officer

with the Georgia Department of Community Supervision, was as-

signed to supervise Gervin during his probation. In April 2012, she

learned that Gervin had been released from a Georgia jail and was

incarcerated in North Carolina for breaking and entering and lar-

ceny. Florence applied for a warrant for Gervin’s arrest. In support,

she said that Gervin had “failed to report” and “absconded from

probation supervision.” She also said “his whereabouts [were] un-

known.” But those statements, as we’ve noted, were false.

Later, when describing her actions before seeking the war-

rant, Florence testified that she was “sure [she] looked at [Gervin’s]

sentence.” In fact, department policy required her to do so before

seeking an arrest warrant. Florence also acknowledged knowing

that the sentencing judge made a practice of reading probation

conditions from the bench. Yet Florence did not obtain or attempt

to obtain the sentencing-hearing transcript, though she had re-

quested sentencing transcripts in the past for other people.

A Mitchell County Superior Court judge granted the war-

rant application.

Then on April 26, 2019, after Gervin served a jail sentence

for robbery and kidnapping, North Carolina police arrested him

during a traffic stop and extradited him to Georgia. Defendant-

Appellant Tandria Milton, a probation officer under Florence’s su-

pervision, petitioned to revoke Gervin’s probation based on his

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 6 of 55

6 Opinion of the Court 23-11452

failure to report. Milton also testified that she reviewed Gervin’s

sentence before seeking to revoke Gervin’s probation.

The Superior Court held Gervin’s revocation hearing on Au-

gust 7, 2019. In the meantime, Gervin spent 104 days in a Georgia

jail waiting for that hearing.

At the hearing, Milton testified. She noted that Gervin had

neither reported to his probation officer since January 2012 nor in-

formed his probation officer of his change in residence. On cross-

examination, Gervin’s counsel asked Milton to examine Gervin’s

sentence disposition. When Milton did so, she conceded that

Gervin’s probation included only one condition: to not return to

the South Georgia Judicial Circuit during its term.

The state court did not revoke Gervin’s probation. It con-

cluded that the State had failed to meet its burden to show that

Gervin violated his probation terms. So the jail released Gervin

that day. His probation term ended in January 2021.

B. Procedural History

Gervin sued Florence and Milton2 under 42 U.S.C. § 1983.

He alleged violations of his Fourth, Eighth, and Fourteenth

Amendment substantive-due-process rights. As relief for his

2 Gervin’s complaint also named Hoke Hampton, who tolled Gervin’s proba-

tion pending the revocation hearing. Defendants argued that Hampton

caused no harm because Gervin’s probation was reinstated and completed on

time. Gervin agreed, so the district court granted summary judgment for

Hampton. Hampton is not a party to this appeal.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 7 of 55

23-11452 Opinion of the Court 7

alleged “loss of liberty, humiliation, emotional distress, and physi-

cal pain and suffering,” Gervin sought nominal, compensatory, spe-

cial, and punitive damages.

Defendants moved for summary judgment.

The district court granted that motion in part (on the Eighth

and Fourteenth Amendment substantive-due-process claims) and

denied it in part (on the Fourth Amendment claim). In doing so, it

characterized Gervin’s Fourth Amendment claim as a malicious-

prosecution claim. The district court acknowledged that we have

said a revocation of probation is not a “prosecution” in other con-

texts. Still, on the facts here, the court reasoned, “the fundamental

protections afforded by the Fourth Amendment against unlawful

search and seizure appear to be implicated.” And the court con-

cluded a reasonable jury could find that Florence and Milton “in-

tentionally or recklessly made or submitted material misstate-

ments” “to advance the legal process.”

II. STANDARDS OF REVIEW

We review a grant of summary judgment de novo, constru-

ing all evidence in the light most favorable to the non-moving party.

Rodriguez v. City of Doral, 863 F.3d 1343, 1349 (11th Cir. 2017). For

summary-judgment motions based on qualified immunity, “we are

required to resolve all issues of material fact in favor of the plain-

tiff.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

Summary judgment is appropriate when no genuine issue

of material fact exists and the moving party is entitled to judgment

as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 8 of 55

8 Opinion of the Court 23-11452

U.S. 317, 322–23 (1986). An issue is genuine if a reasonable trier of

fact could return judgment for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is material if

it “might affect the outcome of the suit under the governing law”

and is not “irrelevant or unnecessary.” Id.

III. DISCUSSION

On appeal, Defendants argue the district court erred in deny-

ing summary judgment for two reasons. First, they assert that the

district court should have granted summary judgment on the mer-

its because a proceeding to revoke probation is not a “criminal pros-

ecution” within the scope of the tort of malicious prosecution.

And second, even if Gervin prevails on the merits, they contend

that they are entitled to qualified immunity because any constitu-

tional violation they may have committed was not clearly estab-

lished at the time they engaged in their acts. We reject both argu-

ments and address each in turn.3

A. Gervin adduced enough evidence to create a triable issue of

fact on a Fourth Amendment malicious-prosecution claim.

We divide our discussion of this point into two parts. First,

we outline the relevant constitutional and statutory principles that

3 In this interlocutory appeal from a partial denial of Defendants’ motion for

summary judgment, we resolve only the issues that Defendants raised in their

motion in the district court and repeat on appeal. We do not address other

possible arguments or defenses the parties could have presented. See United

States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (“In our adversarial system of

adjudication, we follow the principle of party presentation.”).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 9 of 55

23-11452 Opinion of the Court 9

govern Gervin’s claim, and we apply them to the facts of his case.

Based on our review, we conclude that Gervin has submitted

enough evidence to proceed to trial on his Fourth Amendment ma-

licious-prosecution claim. Then, we address Defendants’ primary

argument on appeal: that the tort of malicious prosecution pro-

vides redress for abuse of criminal prosecutions only, not for abuses

of probation-revocation proceedings. We reject that argument as

inconsistent with the Fourth Amendment and the common law.

1. Gervin can establish a Fourth Amendment malicious-

prosecution claim.

The Fourth Amendment “secure[s]” the “people . . . against

unreasonable searches and seizures,” and it guarantees that “no

Warrants shall issue, but upon probable cause.” U.S. CONST.

amend. IV. Originally, our Constitution did not enable the federal

courts to secure that right against state deprivation. Barron v. City

of Baltimore, 32 U.S. 243, 250–51 (1833). But after Americans ratified

the Fourteenth Amendment, which incorporates our Bill of Rights

against the states and their officials, Congress enacted what is cur-

rently codified at Title 42, United States Code, Section 1983. That

Section provides, “[e]very person who, under color of ” state law,

“subjects . . . any . . . person . . . to the deprivation of any rights,

privileges, or immunities, secured by the Constitution and laws,

shall be liable to the party injured . . . for redress.” 42 U.S.C. § 1983.

Section 1983 is an “independent cause of action designed” to

“allow for private enforcement” of federal rights “in courts.” DeVil-

lier v. Texas, 601 U.S. 285, 291 (2024). So plaintiffs may use it to sue

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 10 of 55

10 Opinion of the Court 23-11452

state officials who unreasonably seize them in violation of the

Fourth Amendment. Although the text of Section 1983 makes that

much clear, neither it nor the Fourth Amendment itself specifically

prescribes the full scope of an unreasonable-seizure claim. See Ma-

nuel v. City of Joliet, 580 U.S. 357, 370 (2017) (“After pinpointing that

right, courts still must determine the elements of, and rules associ-

ated with, an action seeking damages for its violation.”); cf. Craw-

ford v. Washington, 541 U.S. 36, 42 (2004) (“The Constitution’s text

does not alone resolve this case.”).

To fill that textual gap, we turn to “the common law of

torts.” Carey v. Piphus, 435 U.S. 247, 257 (1978). “[O]ver the centu-

ries,” that body of law “has developed a set of rules to implement

the principle that a person should be compensated fairly for injuries

caused by the violation of his legal rights.” Id.

Section 1983, like most statutes built on a common-law

background, brings the “old soil with it.” Hall v. Hall, 584 U.S. 59,

73 (2018) (quoting Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 COLUM. L. REV. 527, 537 (1947)). The Supreme Court

recently reminded us of this yet again in Thompson v. Clark. 596 U.S.

36 (2022). There, it explained that “[t]o determine the elements of

a constitutional claim under § 1983,” we “first look to the elements

of the most analogous tort as of 1871 when § 1983 was enacted, so

long as doing so is consistent with ‘the values and purposes of the

constitutional right at issue.’” Id. at 43 (quoting Manuel, 580 U.S. at

370).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 11 of 55

23-11452 Opinion of the Court 11

Here, the most analogous tort for Gervin’s claims is “mali-

cious prosecution,” which we sometimes call “a claim for unrea-

sonable seizure pursuant to legal process.” Id. at 42; see Williams v.

Aguirre, 965 F.3d 1147, 1157 (11th Cir. 2020) (explaining malicious

prosecution is a “shorthand way of describing” certain Fourth

Amendment claims, such as seizure pursuant to legal process).

The Supreme Court has explained that “[i]n American

courts as of 1871, the malicious prosecution tort generally allowed

recovery against an individual who had initiated or caused the ini-

tiation of criminal proceedings despite having ‘no good reason to

believe’ that criminal charges were ‘justified by the facts and the

law.’” Thompson, 596 U.S. at 43 (quoting THOMAS M. COOLEY, A

TREATISE ON THE LAW OF TORTS OR THE WRONGS WHICH ARISE IN-

DEPENDENT OF CONTRACT 180 (Chi., Callaghan & Co. 1879)). Dur-

ing that period, a plaintiff could state a claim for malicious prose-

cution by showing three elements: “(i) the suit or proceeding was

‘instituted without any probable cause’; (ii) the ‘motive in institut-

ing’ the suit ‘was malicious,’ which was often defined in this context

as without probable cause and for a purpose other than bringing

the defendant to justice; and (iii) the prosecution ‘terminated in the

acquittal or discharge of the accused.’” Id. at 44 (quoting COOLEY,

supra, at 181).

Our precedent incorporates these three elements into a

modern claim for violation of the Fourth Amendment’s guarantee

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 12 of 55

12 Opinion of the Court 23-11452

of security against unreasonable seizures.4 But because Section

1983 incorporates the element of common-law torts only “so long

as doing so is consistent with ‘the values and purposes of the con-

stitutional right at issue,’” id. at 43 (quoting Manuel, 580 U.S. at

370)—here, a Fourth Amendment violation—we combine the

Fourth Amendment’s constitutional elements with those of a tra-

ditional malicious-prosecution tort, see Butler v. Smith, 85 F.4th 1102,

1111 (11th Cir. 2023) (explaining that because “the claim is a

mashup of sorts,” plaintiffs must meet both the Fourth Amend-

ment’s requirements and those of the common-law tort of mali-

cious prosecution). So a plaintiff must also prove that he was seized

“pursuant to the legal process,” Heck v. Humphrey, 512 U.S. 477, 484

(1994), “that the legal process justifying his seizure was constitu-

tionally infirm,” and “that his seizure would not otherwise be jus-

tified without legal process,” Williams, 965 F.3d at 1165.

In practice, though, a malicious-prosecution claim’s com-

mon-law elements meld with the Fourth Amendment’s textual

4 We’ve at times said that a plaintiff must also show that the malicious prose-

cution “caused damage.” Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019)

(quoting Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003)). But we’ve also

held that a plaintiff need not prove compensatory damages to state a claim for

Fourth Amendment malicious prosecution because “a plaintiff may re-

cover nominal damages even though he suffers no compensable injury.” Kelly

v. Curtis, 21 F.3d 1544, 1557 (11th Cir. 1994); accord Laskar v. Hurd, 972 F.3d

1278, 1285 (11th Cir. 2020). So a plaintiff may still succeed in his Fourth

Amendment malicious-prosecution suit without litigating the damages ele-

ment as long as his complaint includes a prayer for nominal damages. Gervin’s

does.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 13 of 55

23-11452 Opinion of the Court 13

components because a “significant overlap” exists between them.

Luke v. Gulley (“Luke I”), 975 F.3d 1140, 1143 (11th Cir. 2020). For

instance, “[i]f a plaintiff establishes that a defendant violated his

Fourth Amendment right to be free from seizures pursuant to legal

process, he has also established that the defendant instituted crimi-

nal process against him with malice and without probable cause.”

Id. at 1444. So the questions whether a defendant instituted or con-

tinued a legal proceeding with malice and without probable cause

“effectively merge[]” with our case law on unconstitutional sei-

zures. Butler, 85 F.4th at 1112.

When we account for the overlap in elements between the

Fourth Amendment and the common-law tort of malicious prose-

cution, to prove a Fourth Amendment malicious-prosecution claim

in our Circuit, a plaintiff must establish four elements: (1) the plain-

tiff was seized under legal process; (2) the legal process justifying

the plaintiff’s seizure was constitutionally infirm; (3) the suit or pro-

ceeding terminated in the plaintiff’s favor; and (4) the seizure would

not otherwise be justified without legal process. See id. at 1111–12

(outlining the relevant elements and how they merge); Washington

v. Howard, 25 F.4th 891, 898 (11th Cir. 2022) (identifying a simplified

two-step test that breaks down into these elements). 5

5 In Butler, we initially listed six elements to a Fourth Amendment malicious-

prosecution claim—adding qualified immunity’s requirements as a seventh—

and explained, like we do above, how some of those elements merge together.

85 F.4th at 1111–12. Today’s recitation of the claim’s elements differs in three

ways. First, we merge the overlapping elements. Second, we leave the dis-

cussion of qualified immunity for later. And third, we make explicit Butler’s

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 14 of 55

14 Opinion of the Court 23-11452

Applying these elements to Defendants’ conduct, construed

in the light most favorable to Gervin, is easy enough.

First, Florence seized Gervin under legal process “by seeking

and obtaining the warrants” that led to Gervin’s arrest. Butler, 85

F.4th at 1112. And Milton took “affirmative act[s] to continue

[Gervin’s] seizure,” Howard, 25 F.4th at 912, by filing the probation-

revocation petition and by offering “later testimony” at the proba-

tion-revocation hearing, id. at 904. Both acts “continue[d]

[Gervin’s] detention.” Id. So Florence and Milton effectuated the

legal process that resulted in Gervin’s 104-day stint in jail.

Second, the legal process justifying Gervin’s seizure was con-

stitutionally infirm. A plaintiff may prove that element by, among

other means, showing (a) that the defendant “intentionally or reck-

lessly made misstatements or omissions necessary to” support the

legal process that resulted in or continued the plaintiff’s seizure,

Williams, 965 F.3d at 1165; see Paez v. Mulvey, 915 F.3d 1276, 1283,

1287, 1291 (11th Cir. 2019) (warrant application); Howard, 25 F.4th

at 907 (testimony), and (b) that those misstatements or omissions

were material, meaning “probable cause would be negated if the

offending statement[s] w[ere] removed or the omitted information

included,” Paez, 915 F.3d at 1287.

implicit understanding that a “seizure” within the meaning of the Fourth

Amendment has occurred. See id. at 1112 (explaining the prosecution caused

Butler “damage by landing her in jail for four days”).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 15 of 55

23-11452 Opinion of the Court 15

Defendants don’t dispute that Gervin established this ele-

ment. Nor could they. Florence’s statements in the warrant affida-

vit were false. And so were Milton’s statements in the revocation

petition. Both claimed that Gervin’s conditions of probation re-

quired him to report to his probation officer and to receive permis-

sion from his probation officer to move residences. But in fact,

Gervin’s terms of probation imposed no such conditions. And Mil-

ton’s testimony at the revocation hearing omitted that material

fact: she testified that Gervin failed to report to his probation of-

ficer and that he moved without his probation officer’s permission.

But she did not explain that Gervin’s terms of probation did not

require him to do so.

Plus, Defendants made those misstatements and omissions

recklessly. Florence and Milton both testified that they reviewed

Gervin’s sentence before applying for and testifying in support of

the arrest warrant. So both should have seen that the boxes next

to conditions #4 and #6 were unchecked and that Gervin was not

required to report to a probation officer. Also, Florence testified

that she knew the sentencing judge had a practice of reading pro-

bation conditions from the bench and that she had previously ob-

tained sentencing transcripts to check probation conditions for

other probationers. Yet she did not obtain or attempt to obtain the

sentencing hearing transcript in Gervin’s case.

In other words, Florence and Milton “possessed information

giving rise to an exculpatory inference” but did nothing to examine

the “easily discoverable facts that would confirm or contradict that

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 16 of 55

16 Opinion of the Court 23-11452

inference.” Washington v. Rivera, 939 F.3d 1239, 1248 (11th Cir. 2019)

(footnote and internal quotation marks omitted); see Sevigny v. Dick-

sey, 846 F.2d 953, 957–58 (4th Cir. 1988) (finding a Fourth Amend-

ment violation where an officer “did not avail himself of readily

available information” or undertake “rudimentary inquiries” that

would have revealed the arrest to be “factually unsupportable”). So

Defendants’ misstatements and omissions were reckless.

And without those misstatements (and adding in the omis-

sions), nothing in the warrant affidavit, the probation-revocation

petition, or Milton’s testimony establishes probable cause. See Wil-

liams, 965 F.3d at 1165. The sole condition of Gervin’s probation

was banishment. But no evidence in the relevant records shows he

failed to comply with that condition. See id. at 1162 (explaining in-

sufficient affidavits or testimony “cannot be rehabilitated” with “in-

formation . . . not disclosed to the issuing magistrate”); accord Luke

v. Gulley (“Luke II”), 50 F.4th 90, 96 (11th Cir. 2022). To the contrary,

Gervin was living in North Carolina, well outside the South Geor-

gia Judicial Circuit, at the time of the arrest and probation revoca-

tion. So no probable cause existed for his arrest and prolonged sei-

zure in Georgia. And as a result, Gervin has showed that that his

seizure was constitutionally infirm.

Third, the probation-revocation proceeding terminated in

Gervin’s favor. To satisfy the favorable-termination requirement, a

plaintiff must show only that the “proceedings against” him “for-

mally end[ed] in a manner not inconsistent with his innocence on

at least one charge that authorized his confinement.” Laskar, 972

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 17 of 55

23-11452 Opinion of the Court 17

F.3d at 1295; see Thompson, 596 U.S. at 49 (holding that a plaintiff

obtains a favorable resolution of a criminal prosecution when it

ends “without a conviction”). Here, Gervin established that the

state court released him without revoking his probation. So the

court dismissed the probation-revocation proceedings against

Gervin “in a manner not inconsistent with his innocence.” Laskar,

972 F.3d at 1295.

And fourth, Gervin’s seizure was otherwise unjustified. Be-

cause Gervin “was detained for longer than 48 hours, [his] seizure

would have been ‘presumptively unconstitutional’—and thus not

otherwise justified—if effectuated without legal process.” Butler,

85 F.4th at 1112 (quoting Williams, 965 F.3d at 1164).

In short, when we construe the facts in Gervin’s favor, as we

must do on review of an order denying summary judgment for a

qualified-immunity defense, we conclude that Gervin submitted

enough evidence to support his Fourth Amendment malicious-

prosecution claim. And the district court did not err in denying

Defendants’ motion for summary judgment on the merits of that

claim.

2. Neither the Fourth Amendment nor the common law

supports Defendants’ argument that unjustified de-

tentions under probation-revocation proceedings fall

outside the scope of a Fourth Amendment malicious-

prosecution claim.

Florence and Milton seek to avoid the conclusion that

Gervin has produced enough evidence to establish a Fourth

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 18 of 55

18 Opinion of the Court 23-11452

Amendment malicious-prosecution claim. They argue that a pro-

bation revocation is not a “criminal prosecution” within the scope

of the malicious-prosecution tort.

Our past opinions perhaps provide some nominal support

for this position. See Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003)

(listing the first element of the common-law tort of malicious pros-

ecution as “a criminal prosecution instituted or continued by the

present defendant” (citing Uboh v. Reno, 141 F.3d 1000, 1004 (11th

Cir. 1998))); Paez, 915 F.3d at 1285 (same); Williams, 965 F.3d at 1157

(same); Butler, 85 F.4th at 1111 (same).

But for two reasons we explain below, we reject Defendants’

argument. First, the Fourth Amendment imposes no such limita-

tion on its guarantee of security against unreasonable seizures.

And second, at common law, the tort of malicious prosecution

would have encompassed the initiation or continuation of a proba-

tion-revocation proceeding, even though it is not a criminal pro-

ceeding.

i. The Fourth Amendment does not limit unreasonable-

seizure claims to legal process initiated in criminal

prosecutions.

We start, first, with the text. But for context, before we re-

view the Fourth Amendment, we consider how the Founders

drafted other guarantees in the Bill of Rights.

Take the Fifth Amendment’s protection against compelled

testimony. By its text, it covers only “criminal case[s].” U.S. CONST.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 19 of 55

23-11452 Opinion of the Court 19

amend. V. 6 And the Sixth Amendment liberties—like the right to a

speedy and public trial, to the assistance of counsel, and to con-

front witnesses—extend to only “criminal prosecutions.” Id.

amend. VI.7

But the Fourth Amendment is different. Unlike the Fifth and

Sixth Amendments, it includes no explicit temporal limitations.

Rather, the Fourth Amendment’s protections apply whenever a

government official seizes someone unreasonably. And they re-

main in place through that person’s trial on the cause invoked to

justify their seizure. See Manuel, 580 U.S. at 369 n.8 (rejecting that

a claim for unreasonable seizure pursuant to legal process ends

with a grand-jury indictment and explaining that it instead ends

with the conclusion of the trial). Indeed, the Supreme Court has

explained, “[i]f the complaint is that a form of legal process re-

sulted in pretrial detention unsupported by probable cause, then

the right allegedly infringed lies in the Fourth Amendment.” Id. at

367. So here, where the cause Defendants invoked to justify

Gervin’s seizure is a probation revocation, the Fourth Amendment

6 “[N]or shall [any person] be compelled in any criminal case to be a witness

against himself . . . .” U.S. CONST. amend. V (emphasis added).

7 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have the Assistance of Counsel for

his defence.” U.S. CONST. amend. VI (emphasis added).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 20 of 55

20 Opinion of the Court 23-11452

secures Gervin against any baseless, preliminary detention that re-

sulted from such legal process.

It makes no difference that the probation-revocation pro-

ceedings came after the criminal trial that led to Gervin’s convic-

tion. The Fourth Amendment applies “[w]hatever” the “precise

form” of the “proceeding” used to justify a seizure. Id. at 369 n.8.

As a result, not only does the Fourth Amendment govern pretrial

detentions, but it also protects probationers held in prehearing de-

tention.8 We’ve explained, after all, that “[t]here is no question that

the Fourth Amendment’s protection against unreasonable searches

and seizures applies to probationers.” Owens v. Kelley, 681 F.2d 1362,

1367 (11th Cir. 1982); see Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)

(explaining the Fourth Amendment’s protection against

8 In contrast, we have held that several Fifth and Sixth Amendment guarantees

do not extend to probation-revocation proceedings. See, e.g., United States v.

Reese, 775 F.3d 1327, 1329 (11th Cir. 2015) (per curiam) (“[T]he Sixth Amend-

ment [right to confrontation] does not apply in hearings for the revocation of

supervised release, probation, or parole.”); United States v. Cunningham, 607

F.3d 1264, 1267–68 (11th Cir. 2010) (per curiam) (holding the use of the pre-

ponderance-of-the-evidence standard and the lack of a jury-trial right in revo-

cation proceedings did not violate the Fifth and Sixth Amendments); United

States v. Woods, 127 F.3d 990, 992 (11th Cir. 1997) (per curiam) (“[R]evocation

of probation for commission of a subsequent criminal offense does not consti-

tute punishment for that criminal offense for purposes of double jeop-

ardy . . . .”); United States v. Taylor, 931 F.2d 842, 848 (11th Cir. 1991) (per cu-

riam) (“[R]evocation hearings are not criminal prosecutions under the sixth

amendment and thus, the defendant is not constitutionally guaranteed a

speedy hearing.”); Morgan v. Wainwright, 676 F.2d 476, 481 (11th Cir. 1982)

(holding no right to a jury at probation-revocation hearing).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 21 of 55

23-11452 Opinion of the Court 21

unreasonable searches extends to a “probationer’s home, like any-

one else’s”). 9 And a constitutionally unreasonable seizure—even a

seizure of a probationer—forms the core of a Fourth Amendment

malicious-prosecution claim.

So both text and precedent confirm a Fourth Amendment

malicious-prosecution claim does not require proof of a criminal

prosecution. Or, at least, it does not require the narrow definition

of “criminal prosecution” that Defendants hope to give that term.

“Common-law principles are meant to guide rather than to control

the definition of § 1983 claims . . . .” Manuel, 580 U.S. at 370. “We

cannot elevate the common law over the Constitution.” Williams,

965 F.3d at 1157. So we use the phrase “‘malicious prosecution’ as

only ‘a shorthand way of describing’ certain claims of unlawful

9 Defendants argue that the Supreme Court has held that the Fourth Amend-

ment does not protect probationers as fully as it does law-abiding individuals.

That is true. See, e.g., United States v. Knights, 534 U.S. 112, 121–22 (2001) (hold-

ing officers need only reasonable suspicion to conduct a warrantless search of

a probationer’s home because probationers have a diminished expectation of

privacy and are more likely than are law-abiding citizens to commit a crime in

the future). But see Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (requiring a

“hearing at the time of [a parolee’s] arrest and detention to determine whether

there is probable cause to believe that he has committed a violation of his pa-

role”). But Defendants do not explain why that eliminates Gervin’s Fourth

Amendment claim. Even if we assume that the fact of Gervin’s probation

would lower the state’s burden-of-proof for obtaining an arrest warrant, De-

fendants still violated Gervin’s allegedly tempered Fourth Amendment rights.

They lacked even a reasonable suspicion that Gervin violated the conditions

of his probation. See Jones v. Chandrasuwan, 820 F.3d 685, 696 (4th Cir. 2016)

(“Appellees violated [the plaintiff’s] Fourth Amendment rights by seeking his

arrest for alleged probation violations without reasonable suspicion.”).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 22 of 55

22 Opinion of the Court 23-11452

seizure under the Fourth Amendment.” Id. (quoting Whiting v.

Traylor, 85 F.3d 581, 584 (11th Cir. 1996), abrogated on other grounds

by Wallace v. Kato, 549 U.S. 384, 389–90 (2007)). By focusing on the

“prosecution” in “malicious prosecution,” Defendants take the la-

bel too literally. But when it comes to the Fourth Amendment, a

“[r]ose is a rose is a rose is a rose,” even if we’re talking about an

alleged Fourth Amendment violation that a probationer’s mali-

cious-prosecution claim pursues. Perez v. Wells Fargo N.A., 774 F.3d

1329, 1331 & n.2 (11th Cir. 2014) (quoting GERTRUDE STEIN, GEOG-

RAPHY AND PLAYS 187 (The Four Seas Press 1922) (1913)).

We’ve made this point several times before. In Whiting, one

of our “oldest decisions on the subject,” Laskar, 972 F.3d at 1294, 10

we explained that the constitutional seizure, not the prosecution,

is the touchstone of a Fourth Amendment malicious-prosecution

claim. We focused on the fact that Whiting “based his claim—

whatever he calls it—on some actual unlawful, forcible, restraint of

his person.” 85 F.3d at 584. And although we discussed Whiting’s

claim in the context of the “criminal proceedings” that injured him,

id. at 583–84, 585 n.8, we ultimately homed in on the touchstone

our precedent now adopts: “seizures . . . pursuant to legal process,”

id. at 585. See id. at 585–86 (explaining an arrest pursuant to a war-

rant constitutes a seizure “pursuant to legal process”); Kelly v. Curtis,

10 For this reason, Uboh, Wood, and its progeny, which came after Whiting, do

not bind us as prior-panel precedent. See United States v. Hogan, 986 F.2d 1364,

1369 (11th Cir. 1993) (explaining we’re bound by the “first panel to address an

issue of law”).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 23 of 55

23-11452 Opinion of the Court 23

21 F.3d 1544, 1554–55 (11th Cir. 1994) (finding a “malicious prose-

cution” based on an arrest, in fact, followed by an unlawful warrant

application and physical restraint); NAACP v. Hunt, 891 F.2d 1555,

1563 (11th Cir. 1990) (borrowing Alabama common law to con-

clude that, to prove a Section 1983 malicious-prosecution claim, the

plaintiff must show the defendant initiated a “judicial proceeding”).

And more recently, in Laskar v. Hurd, we confronted an ar-

gument similar to Defendants’ when we assessed the interplay be-

tween the Fourth Amendment and a malicious-prosecution claim’s

favorable-termination requirement. There, the defendants argued

that the common law required a plaintiff asserting a Fourth

Amendment malicious-prosecution claim to show that the criminal

proceeding against the plaintiff terminated with a finding of the

plaintiff’s innocence on the charges pressed. Laskar, 972 F.3d at

1285. We rejected that argument as an errant reading of the com-

mon law and the Fourth Amendment. See id. at 1292.

We emphasized that the validity of the plaintiff’s Fourth

Amendment claim turned on “whether the seizure was justified,

not whether the prosecution itself was justified.” Id. So, we rea-

soned, adopting the innocence-finding requirement would inap-

propriately “redirect[] the focus” of our analysis away from the sei-

zure’s justification “to whether the entire prosecution was justi-

fied.” Id. Indeed, we went so far as to conclude that because “‘the

Fourth Amendment protects against “searches” and “seizures”

(and not “prosecutions”),’ the favorable-termination requirement

functions as a rule of accrual, not as a criterion for determining

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 24 of 55

24 Opinion of the Court 23-11452

whether a constitutional violation occurred.” Id. (quoting Whiting,

85 F.3d at 584). As a result, the favorable-termination element

played only a “limited role” in our analysis of the plaintiff’s claims.

Id. at 1293. And in turn, we rejected the stringent innocence-find-

ing approach to the favorable-termination element that the defend-

ants advanced. Id.

Today’s reading of the Fourth Amendment is the next chap-

ter of the same book. Because the Fourth Amendment protects

against “searches” and “seizures” (and not “prosecutions”), Gervin

can state a Fourth Amendment malicious-prosecution claim even

if the legal process by which he was seized was not part of a formal,

criminal prosecution. See Howard, 25 F.4th at 898 (focusing on “un-

reasonable seizures pursuant to legal process”); id. at 911 (equating

“a criminal prosecution” and “a civil action that resulted in an ar-

rest”); cf. DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1309 (11th

Cir. 2019) (describing elements of “wrongful civil proceedings

claims” as “settled law” incorporated by Section 1983).

Focusing on the form of the legal process would, like the

innocence-finding requirement at issue in Laskar, inappropriately

“redirect[] the focus” of our analysis from the relevant Fourth

Amendment question: whether a “seizure” occurred. Laskar, 972

F.3d at 1292. As the Supreme Court has put it, “[i]f the complaint

is that a form of legal process resulted in pretrial detention unsup-

ported by probable cause, then the right allegedly infringed lies in

the Fourth Amendment.” Manuel, 580 U.S. at 367 (emphasis

added).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 25 of 55

23-11452 Opinion of the Court 25

To be sure, the tort’s common-law elements do not com-

pletely drop out of our analysis. The fact that a defendant initiated

a prosecution illustrates the type of Fourth Amendment claim a

plaintiff brings and the relevant constitutional standards that apply

to that claim. Our precedent has long separated malicious-prose-

cution claims from false-arrest or imprisonment claims on the basis

that malicious-prosecution seizures were made under legal process

but false-arrest or imprisonment seizures were made without legal

process. See Williams, 965 F.3d at 1157–58; Whiting, 85 F.3d at 585–

86 & n.8. In other words, the initiation of a criminal prosecution

plays only the “limited role,” Laskar, 972 F.3d at 1293, of identifying

the relevant constitutional principles at issue, see Sylvester v. Fulton

Cnty. Jail, 94 F.4th 1324, 1330–31 (11th Cir. 2024) (discussing the dif-

ferences between Fourth Amendment malicious-prosecution

claims and Fourth Amendment false-arrest claims).

So that common-law element does not bar relief if a plaintiff

otherwise states a Fourth Amendment violation under the applica-

ble constitutional principles. See Luke I, 975 F.3d at 1144 (simplify-

ing “our standard for malicious prosecution” to require proof “that

the defendant violated his Fourth Amendment right to be free

from seizures pursuant to legal process,” not proof that the defend-

ant initiated a formal, criminal prosecution). After all, the Consti-

tution, not the common law, controls the scope of an action under

Section 1983.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 26 of 55

26 Opinion of the Court 23-11452

ii. The common law did not limit malicious-prosecution

actions to only those seeking redress for baseless crimi-

nal prosecutions.

But even if the common law did control the scope of a claim

under Section 1983 and the Fourth Amendment, Defendants still

would not prevail. A plaintiff in Gervin’s shoes could state a com-

mon-law claim of malicious prosecution because the tort provided

redress for a diverse set of maliciously instituted suits and proceed-

ings that resulted in a person’s erroneous confinement.

The elements of malicious prosecution that the Court re-

counted in Thompson bear this out. A plaintiff could state a claim

for malicious prosecution by showing that the defendant mali-

ciously instituted or continued a “suit or proceeding.” 596 U.S. at

44. “[S]uit or proceeding” is a pretty broad phrase. Indeed, at its

most expansive, it includes any “steps or measures in the prosecu-

tion of an action.” Proceeding, 2 NOAH WEBSTER, AMERICAN DIC-

TIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828).

The breadth of that phrase comports with the injury the ma-

licious-prosecution tort was supposed to remedy. It sought to stop

“groundless proceedings” that could “affect[] materially one’s

standing and credit,” COOLEY, supra, at 180, and that could cause

“injury to the person, as connected with false imprisonment, and

also to property, on account of the necessary cost and expense of

defending against unfounded demands or accusations,” 1 FRANCIS

HILLARD, THE LAW OF TORTS OR PRIVATE WRONGS 475 (Boston, Lit-

tle, Brown & Co. 2d ed. 1866); see also id. at 489 (explaining “the

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 27 of 55

23-11452 Opinion of the Court 27

plaintiff must allege and prove that he has been prosecuted by the

defendant, either criminally or in a civil suit” (emphasis omitted)).

Many forms of suits and proceeding implicate these types of

injuries. Even some civil actions may lead to confinement, see How-

ard, 25 F.4th at 911, and a person incurs costs in any type of litiga-

tion, see Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (recognizing

the litigation costs associated with civil suits); cf. Touchcom, Inc. v.

Bereskin & Parr, 574 F.3d 1403, 1417 (Fed. Cir. 2009) (discussing bur-

dens of practicing before the USPTO). So it’s unsurprising that

courts understood the tort of malicious prosecution to offer re-

dress for damage that non-criminal legal process inflicts. To be

sure, around the time Congress enacted Section 1983, the authori-

ties were “not entirely agreed [on] what cases [were] embraced

within” the tort of malicious prosecution. COOLEY, supra, at 187–

89. But one thing that was beyond question was that the tort could

redress a wide array of baseless legal proceedings, civil and criminal

alike, that could injure a person or her property. See id. at 187–89

(overviewing the scope of malicious-prosecution claims).

English courts established that principle well before the Rev-

olution. Chapman v. Pickersgill offers a helpful example. There, a

plaintiff sought redress for the false and malicious commission of a

bankruptcy suit against him. (1762) 95 Eng. Rep. 734, 734; 2 Wils.

K.B. 146, 146 (opinion of Pratt, C.J.). The defendant objected to

the action on the grounds that the bankruptcy “was a proceeding

in nature of a civil suit” and that such a malicious-prosecution

claim had never been brought before. Id.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 28 of 55

28 Opinion of the Court 23-11452

The court quickly rejected those arguments, adding that it

“wish[ed] never to hear” them again. Id. Torts, the court ex-

plained, “are infinitely various, not limited or confined, for there is

nothing in nature but may be an instrument of mischief.” Id. And

“suing out a commission of bankruptcy falsely and maliciously, is

of the most injurious consequence in a trading country.” Id. In

fact, the plaintiff alleged as much. He claimed he had been “greatly

damaged,” “scandalized upon record, and put to great charges in

obtaining a supersedeas to the commission.” Id. So in approving

of the plaintiff’s action, the court made clear that “wherever there

is an injury done to a man’s property by a false and malicious pros-

ecution, it is most reasonable he should have an action to repair

himself.” Id.

This governing principle held throughout the early nine-

teenth century. English courts continued to sustain malicious-pros-

ecution claims for baseless bankruptcy proceedings, see, e.g., Whit-

worth v. Hall (1831) 109 Eng. Rep. 1302, 1303; 2 B. & Ad. 695, 697–

98 (opinion of Tenterden, C.J.); Farley v. Danks (1855) 119 E.R. 180,

182; 4 El. & Bl. 493, 498–99; maliciously issued executions for sums

larger than those actually due, see, e.g., Churchill v. Siers (1854) 118

Eng. Rep. 1389, 1392–93; 3 El. & Bl. 929, 937–40; Jennings v. Florence

(1857) 140 Eng. Rep. 500, 501; 2 C. B. (N. S.) 467, 470–71; false suits

for attachment or seizure of a person’s property, see, e.g., Waterer v.

Freeman (1619) 80 Eng. Rep. 412, 412–13; Hobart 266, 266–67; and

abuse of the civil process causing one’s arrest, see, e.g., Grainger v

Hill (1838) 132 Eng. Rep. 769, 772–73; 4 Bing. (N. C.) 212, 219–21

(opinion of Tindal, C.J.); Heywood v Collinge (1838) 112 Eng. Rep.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 29 of 55

23-11452 Opinion of the Court 29

1213, 1215–16; 9 Ad. & El. 268, 273–75. Lord Campbell aptly sum-

marized the rule: “[t]o put into force the process of the law mali-

ciously and without any reasonable or probable cause is wrongful.”

Churchill, 118 Eng. Rep. at 1392; 3 El. & Bl. at 937.

The law did not differ on our side of the pond. American

courts readily adopted the general principles governing the tort of

malicious prosecution that the English system refined in earlier

centuries. See, e.g., White v. Dingley, 4 Mass. 433, 435 (1808) (holding

“[n]o action, by the common law, lies for damages sustained by su-

ing a civil action, when the plaintiff fails, unless it be alleged and

shown to be malicious, and without probable cause”).

Americans could sue for damage that various types of pro-

ceedings caused: the malicious institution or continuation of bank-

ruptcy proceedings, see, e.g., Stewart v. Sonneborn, 98 U.S. 187, 192

(1878); executions for sums larger than was due, see, e.g., Sommer v.

Wilt, 4 Serg. & Rawle 19, 23 (Pa. 1818); Savage v. Brewer, 33 Mass.

(16 Pick.) 453, 455–57 (1835); attachments, injunctions, or other re-

strictions on a person’s use and enjoyment of property, see, e.g., Rog-

ers v. Brewster, 5 Johns. 125, 127 (N.Y. Sup. Ct. 1809); Stone v. Swift,

21 Mass. (4 Pick.) 389, 405, 409 (1826); Cox v. Taylor’s Adm’r, 49 Ky.

(10 B. Mon.) 17, 18 (1849); Spengler v. Davy, 56 Va. (15 Gratt.) 381,

395 (1859); Fullenwider v. McWilliams, 70 Ky. (7 Bush) 389, 390

(1870); suits to declare individuals insane and place them under

guardianship, see, e.g., Davenport v. Lynch, 51 N.C. (6 Jones) 545, 547

(1859); Lockenour v. Sides, 57 Ind. 360, 365 (1877); cf. Johnson v. King

& Davidson, 64 Tex. 226, 231 (1885); and other civil actions leading

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 30 of 55

30 Opinion of the Court 23-11452

to a person’s arrest, see, e.g., Watkins v. Baird, 6 Mass. 506, 511 (1810);

Ray v. Law, 20 F. Cas. 330, 330 (C.C.D. Pa. 1816) (No. 11,592)� (Wash-

ington, Circuit Justice); Burhans v. Sanford, 19 Wend. 417, 417–18

(N.Y. Sup. Ct. 1838); Burnap v. Marsh, 13 Ill. 535, 537 (1852); Beach v.

Wheeler, 30 Pa. 69, 69 (1858); Collins v. Hayte, 50 Ill. 337, 348 (1869).

In fact, Antebellum and Reconstruction jurists rejected argu-

ments—just like the one Defendants now make—that courts

should read the word “prosecution” “in its most restricted sense”

and limit the tort “only to criminal proceedings.” Burnap, 13 Ill. at

541; see id. at 540–42 (concluding the tort permits redress for past

civil suits in which the plaintiff was maliciously arrested); accord Lip-

scomb v. Shofner, 33 S.W. 818, 819 (Tenn. 1896). Americans com-

monly used the terms “prosecution” and “[m]alicious prosecution”

broadly, referring to the “institution and carrying on of a suit in a

court of law or equity, to obtain some right, or to redress and pun-

ish some wrong.” Prosecution, WEBSTER, supra (emphasis in origi-

nal); see also Prosecute, WEBSTER, supra (defining “prosecute” as “[t]o

seek to obtain by legal process,” “[t]o accuse of some crime or

breach of law, or to pursue for redress or punishment, before a legal

tribunal”).

And U.S. courts recognized, just as those in England did, that

the “novelty” of a defendant’s previous legal “action” could offer

“no objection” to a plaintiff’s malicious-prosecution claim because

the relevant “injury consists in the oppression and the malice,” not

the form of the previous action itself. Sommer, 4 Serg. & Rawle at

23. It was the injury that the legal process caused, not the form of

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 31 of 55

23-11452 Opinion of the Court 31

that process, that gave rise to the “remedy” at law. Id.; see Pangburn

v. Bull, 1 Wend. 345, 350–51 (N.Y. Sup. Ct. 1828) (concluding mali-

cious-prosecutions claims “did not require an arrest or bail” be-

cause other forms of legal process may give rise to damages

“equally great”).

To be sure, that plaintiffs could seek redress for many abuses

of the legal process did not mean courts treated all alleged mali-

cious prosecutions equally. See Howard, 25 F.4th at 911–12. Of

course, some courts ignored whether the dispute concerned a pre-

vious civil or criminal case. See, e.g., Stewart, 98 U.S. at 192 (“Not-

withstanding what has been said in some decisions of a distinction

between actions for criminal prosecutions and civil suits, both clas-

ses at the present day require substantially the same essentials.”);

Collins, 50 Ill. at 354 (“Although this prosecution was to recover

damages for a private wrong . . . it is governed by rules of law pre-

cisely the same, had the prosecution been of a criminal charac-

ter.”). But others recognized “a distinction between . . . civil

suits . . . prosecuted for the private benefit of the plaintiff and a ma-

licious prosecution of an offense . . . which affects the public.” Ad-

ams v. Lisher, 3 Blackf. 241, 244 (Ind. 1833); see COOLEY, supra, at 185

(discussing the distinction).

The law in the jurisdictions that distinguished between the

two “favoured” the “prosecutor” by preventing a plaintiff from re-

lying on the prosecuting attorney’s ill-founded “private motive[s],”

Adams, 3 Blackf. at 244, or by “departing from the ordinary rules of

pleading and proof, and imposing upon” a plaintiff “the burden of

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 32 of 55

32 Opinion of the Court 23-11452

negativing probable cause as the foundation of the prosecution,”

Spengler, 56 Va. (15 Gratt.) at 390. Compare Grant v. Deuel, 3 Rob. 17,

20 (La. 1842) (requiring, for malicious criminal prosecutions, “pos-

itive evidence . . . that the prosecution was groundless”), with

Burhans, 19 Wend. at 418 (holding proof that defendants voluntar-

ily discontinued a suit for slander “was sufficient to change the onus,

and throw upon the defendants the necessity of showing probable

cause”).

Still, of the possible distinctions between malicious-prosecu-

tion claims premised on baseless civil and criminal suits, none ap-

pear to have gone to the facial viability of a plaintiff’s case. In other

words, the form of the proceeding the defendant instituted or con-

tinued was not inherently relevant. See Kryszke v. Kamin, 163 Mich.

290, 299 (1910) (“The name or form of the writ or process is imma-

terial.”). Rather, the nature of the damages the plaintiff suffered

supplied the limiting principle, to the extent one existed: courts

would not entertain malicious-prosecution suits premised on prior

legal proceedings when the usual rules of cost-shifting adequately

compensated a plaintiff for the damage of defending the baseless

suit.

We can trace this throughline back to the thirteenth century.

The earliest iterations of the common law guaranteed individuals

access to the King’s courts. But the courts discouraged unfounded

litigation through sureties, pledges of prosecution, and

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 33 of 55

23-11452 Opinion of the Court 33

amercement.11 See Note, Groundless Litigation and the Malicious Pros-

ecution Debate: A Historical Analysis, 88 Yale L.J. 1218, 1221–27 (1979)

[hereinafter Groundless Litigation] (recounting the precursors to ma-

licious-prosecution claims); see also John D. Lawson, The Action for

the Malicious Prosecution of a Civil Suit, 30 AM. L. REG. 281, 282–83

(1882).

Over time, though, these remedies proved ineffective against

mounting waves of false suits. So starting in 1267 with the Statute

of Marlborough,12 Parliament legislated rules that ensured success-

ful parties in a suit would recover their litigation costs. Groundless

Litigation, supra, at 1226–27; see id. at 1226 n.64 (collecting statutes).

These statutes abated the concern that a plaintiff needed a later civil

action to obtain redress. See Lawson, supra, at 283; Torts—Malicious

11 “Amercements were payments to the Crown, and were required of individ-

uals who were ‘in the King’s mercy,’ because of some act offensive to the

Crown.” Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257,

269 (1989). Vexatious litigation fell among the acts “offensive to the Crown.”

See Groundless Litigation, supra, at 1222–24.

12 Although case law and legal literature commonly refer to this statute as ca-

nonical in the development of the tort of malicious prosecution, it goes by

many names. Some have called it the Statute of Marleberge. See, e.g., Ground-

less Litigation, supra, at 1223 n.40. Others, the Statute of Marlbridge. See, e.g.,

Whipple v. Fuller, 11 Conn. 582, 585 (Conn. 1836). But we use the moniker that

official U.K. sources have adopted, the Statute of Marlborough. See The Statute

of Marlborough 1267 [Distress], THE NATIONAL ARCHIVES, https://www.legisla-

tion.gov.uk/aep/Hen3cc1415/52/1 [https://perma.cc/7PCF-MYFW] (dis-

cussing The Statute of Marlborough 1267, 52 Hen. 3 c. 6, § 2 (Eng.)).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 34 of 55

34 Opinion of the Court 23-11452

Prosecution—Civil Action—Absence of Interference with Person or Prop-

erty, 30 Yale L.J. 310, 310 (1921).

And in turn, to maintain a suit for malicious prosecution,

English courts required a showing of special damages apart from

those curable through an award of costs. See, e.g., Waterer, 91 Eng.

Rep. at 413; Hobart at 267; Savile v. Roberts (1698) 91 Eng. Rep. 1147,

1551; 1 Ld. Raym. 374, 381; Parker v. Langley (1713) 93 Eng. Rep.

293, 294; Gilb. Cas. 163, 164–67; Cotterell v Jones (1851) 138 Eng. Rep.

655, 661; 11 C. B. 713, 727–29 (opinion of Jervis, C.J.); id. at 662; 11

C. B. at 730–31 (opinion of Talfourd, J.).

This history greatly influenced the scope of malicious-pros-

ecution claims in American courts. Many courts adopted this so-

called “English rule” and required special damages to sustain a ma-

licious-prosecution action.

These courts held that in the absence of an arrest, of a sei-

zure, attachment, or interference with property, or of other conse-

quential damages, such as damage to reputation, a successful de-

fendant has no remedy, even when an antagonist proceeded against

him maliciously and without probable cause. See, e.g., Thomas v.

Rouse, 4 S.C.L. (2 Brev.) 75 (1806); Potts v. Imlay, 4 N.J.L. 330, 334

(1816) (opinion of Kirkpatrick, C.J.); Cade v. Yocum, 8 La. Ann. 477,

478 (1852); Gorton v. Brown, 27 Ill. 489, 494 (1862); Mayer v. Walter,

64 Pa. 283, 289 (1870); Salado Coll. v. Davis, 47 Tex. 131, 136 (1877);

McNamee v. Minke, 49 Md. 122, 133–34 (1878); Wetmore v. Mellinger,

18 N.W. 870, 871 (Iowa 1884); Mitchell v. Sw. R.R., 75 Ga. 398, 404–

05 (1885); Ely v. Davis, 15 S.E. 878, 878 (N.C. 1892); Mitchell v. Silver

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 35 of 55

23-11452 Opinion of the Court 35

Lake Lodge No. 84, I.O.O.F., 29 Or. 294, 297 (1896); cf. Tomlinson v.

Warner, 9 Ohio 103, 104–05 (1839) (favoring the English rule in

dicta), limited as dicta in Pope v. Pollock, 21 N.E. 356, 357 (Ohio 1889)

(disfavoring the English rule in dicta); Rice v. Day, 51 N.W. 464, 465

(Neb. 1892) (adopting the English rule), overruled by McCormick Har-

vester Mach. Co. v. Willan, 88 N.W. 497, 497–98 (Neb. 1901) (rejecting

the English rule).13

But many others rejected this “English rule.” Instead, these

courts credited the “principle” that was “operative” throughout

common-law jurisprudence: plaintiffs may state a claim for

13 Because the issue of damages is not before us, we do not now rule on the

full extent of damages recoverable in a Fourth Amendment malicious-prose-

cution action. Still, we do not imply that jurisdictions adopting the special-

damages requirement precluded recovery of all litigation expenses. It appears

that, in some of the states that rejected the English rule, as well as those that

did not specifically address the English rule, around the time Congress enacted

Section 1983, plaintiffs could still recover some litigation expenses incurred in

defending the original, malicious prosecution. See, e.g., Littlejohn v. Wilcox, 2

La. Ann. 620, 620 (1847); Barnett v. Reed, 51 Pa. 190, 191, 193, 196 (1865); Law-

rence v. Hagerman, 56 Ill. 68, 76 (1870); Bonesteel v. Bonesteel, 30 Wis. 511, 515–

16 (1872); Cooper v. Utterbach, 37 Md. 282, 287, 299, 315–16 (1873); Krug v. Ward,

77 Ill. 603, 609 (1875); Stewart, 98 U.S. at 190–91, 197; Coleman v. Allen, 79 Ga.

637, 640, 647 (1888); Slater v. Kimbro, 91 Ga. 217, 18 S.E. 296, 297 (1892); Hurlbut

v. Boaz, 4 Tex. Civ. App. 371, 377 (1893); Rule v. McGregor, 88 N.W. 814, 814

(Iowa 1902); Stanford v. A. F. Messick Grocery Co., 55 S.E. 815, 817–18 (N.C.

1906); see also Parsons v. Harper, 57 Va. (16 Gratt.) 64, 73–74, 78 (1860); Lavender

v. Hudgens, 32 Ark. 763, 770–71 (1878); Vinal v. Core, 18 W. Va. 1, 3, 8, 48–50

(1881); Wheeler v. Hanson, 161 Mass. 370, 376 (1894); Blunk v. Atchison, T. &

S.F.R. Co., 38 F. 311, 317 (C.C.W.D. Mo. 1889); Hewellette v. George, 9 So. 885,

887 (Miss. 1891), overruled on other grounds by Glaskox ex rel. Denton v. Glaskox,

614 So. 2d 906 (Miss. 1992).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 36 of 55

36 Opinion of the Court 23-11452

malicious prosecution when “taxation of costs is not an ample rem-

edy.” Whipple v. Fuller, 11 Conn. 582, 585 (1836); see, e.g., Pangburn,

1 Wend. at 350–54; Closson v. Staples, 42 Vt. 209, 215–22 (1869); Mar-

bourg v. Smith, 11 Kan. 554, 564 (1873); Woods v. Finnell, 76 Ky. (13

Bush) 628, 633–35 (1878); McCardle v. McGinley, 86 Ind. 538, 540–41

(1882) (citing Lockenour, 57 Ind. at 364–65); Eastin v. Bank of Stock-

ton, 66 Cal. 123, 126–27 (1884); McPherson v. Runyon, 41 Minn. 524,

525 (1889); Antcliff v. June, 81 Mich. 477, 490 (1890) (citing Brand v.

Hinchman, 68 Mich. 590, 597 (1888)); Smith v. Burrus, 16 S.W. 881,

881–82 (Mo. 1891) (citing Brady v. Ervin, 48 Mo. 533, 534–35 (1871));

Lipscomb, 33 S.W. at 818–19; Kolka v. Jones, 71 N.W. 558, 559 (N.D.

1897); cf. Marshall v. Betner, 17 Ala. 832, 837 (1850) (allowing recov-

ery of litigation expenses on reasoning that rejects the English

rule); Hoyt v. Macon, 2 Colo. 113, 116–17, 119–21 (1873) (same);

Pope, 21 N.E. at 357 (disfavoring the English rule in dicta).

And in the United States, cost awards were often insufficient

to make prevailing defendants whole. See Masterson v. Brown, 72 F.

136, 138 (5th Cir. 1896) (concluding “no similar or equivalent pro-

visions for adjudging costs are of force in any of the different

states”). 14 States’ cost-shifting statutes “were not intended or sup-

posed to be an adequate compensation for all damages [a litigant]

might sustain and should recover by reason of defending a suit

14 All decisions that the Fifth Circuit issued by the close of business on Septem-

ber 30, 1981, are binding precedent in this Court. Bonner v. City of Prichard, 661

F.2d 1206, 1207 (11th Cir. 1981) (en banc).

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 37 of 55

23-11452 Opinion of the Court 37

which was brought and prosecuted maliciously and without prob-

able cause.” Closson, 42 Vt. at 221.

In fact, courts remarked that it was “too clear for discussion

that the costs which the law gives a successful party are no ade-

quate compensation for the time, trouble and expense of defending

a malicious and groundless civil action.” McCardle, 86 Ind. at 540;

see Kolka, 71 N.W. at 560 (“That our meager bill of costs was in-

tended to recompense the victim of the malicious prosecution of

a civil suit is, to our minds, unthinkable.”). So in refusing to “shut

[their] eyes to the truth known by every body,” Whipple, 11 Conn.

at 585, many states enabled plaintiffs to bring malicious-prosecu-

tion claims by alleging the actual “expenses incurred and damages

sustained” in defending baseless suits, Woods, 76 Ky. (13 Bush) at

633 (concluding litigation expenses “should be as fully recognized

as if his property had been attached or his body taken charge of by

the sheriff”); see COOLEY, supra, at 188–89, 188 n.3 (listing cases but

disfavoring the rule). And under that rule, courts considered rou-

tine yet baseless and malicious civil suits to amount to tortious con-

duct.

“In the light of this history, we have no trouble discerning a

well-settled principle of law to guide our analysis.” Laskar, 972 F.3d

at 1289. Many forms of legal process may give rise to a common-

law claim for malicious prosecution. The limiting principle is the

plaintiff’s injury, not the civil or criminal nature of the legal process

the defendant previously instituted or continued. So as long as the

plaintiff proved the acceptable type of damages the relevant

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 38 of 55

38 Opinion of the Court 23-11452

jurisdiction required, plaintiffs could maintain a suit for malicious

prosecution. In many cases, any unremedied damage—even litiga-

tion costs alone—sufficed. But in others, plaintiffs had to prove

special damages, like reputational harm, attachment of property,

or an arrest of their person. See McNamee, 49 Md. at 133–34.

For our purposes, though, in every jurisdiction, a plaintiff in

Gervin’s shoes could state a claim for malicious prosecution. An

arrest and corresponding bodily confinement gave rise to the spe-

cial damages that even stringent jurisdictions demanded. See How-

ard, 25 F.4th at 911 (linking “a criminal prosecution” with “a civil

action that resulted in an arrest”); HILLARD, supra, at 475 (discussing

“injury to the person, as connected with false imprisonment, and

also to property”); Burnap, 13 Ill. at 540–41 (confirming the term

malicious prosecution “has been often used by learned courts and

elementary writers as applying to prosecutions of civil suits, in

which the party has been maliciously arrested”); see also Mitchell, 75

Ga. at 405 (requiring that the “person of the defendant was ar-

rested, or his property attached, or any special grievance to defend-

ant”).

And the more permissive jurisdictions also recognized that a

cost-shifting statute could not remedy damages stemming from a

person’s seizure. See Closson, 42 Vt. at 219 (“arresting the body”

may “enhance[]” damages but it is “not essential to maintain an ac-

tion”); accord Pangburn, 1 Wend. at 350–51; Whipple, 11 Conn. at

584–85; Marbourg, 11 Kan. at 564; Woods, 76 Ky. (13 Bush) at 632,

635. So the common law would have permitted Gervin’s suit. For

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 39 of 55

23-11452 Opinion of the Court 39

that reason, Defendants cannot now resist his Fourth Amendment

claim on that basis.

* * *

To recap, the district court correctly concluded that a rea-

sonable jury could find that Defendants violated Gervin’s Fourth

and Fourteenth Amendment rights. When we construe the evi-

dence in the light most favorable to Gervin, Florence and Milton

used the legal process to seize Gervin and continually detain him;

those proceedings terminated in Gervin’s favor; and, aside from

the legal process used to seize Gervin, nothing could constitution-

ally justify Gervin’s arrest and detention.

On top of that, Gervin presented enough evidence to allow

a jury to conclude that the legal process justifying his seizure was

constitutionally infirm. When we again view the evidence in the

light most favorable to Gervin, the warrant application Florence

submitted, the probation-revocation petition Milton filed, and the

testimony Milton gave at the probation-revocation hearing in-

cluded false statements and material omissions about the condi-

tions of probation that applied to Gervin. And both Florence and

Milton had easy access to, and said they reviewed, definitively ex-

culpatory information (Gervin’s sentencing form). So a jury could

reasonably conclude the pair made false statements and material

omissions recklessly. Under our precedent, Gervin has made out a

viable Fourth Amendment malicious-prosecution claim.

Neither Gervin’s status as a probationer nor the probation-

based nature of the legal proceedings that resulted in Gervin’s

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 40 of 55

40 Opinion of the Court 23-11452

seizure undermines that conclusion. The Fourth Amendment’s

protections don’t depend on the character of the legal process caus-

ing a seizure. Indeed, the Fourth Amendment’s text, as well as our

precedent, make that clear. And the common-law background

against which Congress enacted Section 1983 confirms what we

glean from the Constitution’s text. A plaintiff could state a claim

for malicious prosecution, even if the previous prosecution was

civil in nature, if it led to the plaintiff’s arrest. So we reject Defend-

ants’ argument that probation-revocation proceedings are not pros-

ecutions within the scope of Gervin’s Section 1983 claim.

With that settled, we consider Defendants’ claim of qualified

immunity.

B. Gervin premises his Fourth Amendment malicious-prosecu-

tion claim on clearly established law, so Defendants are not en-

titled to qualified immunity.

Qualified immunity attempts to balance “the need to hold

public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Cal-

lahan, 555 U.S. 223, 231 (2009). To accomplish these dual goals, the

doctrine protects government officials engaged in discretionary

functions and sued in their individual capacities unless they violate

“clearly established federal statutory or constitutional rights of

which a reasonable person would have known.” Keating v. City of

Miami, 598 F.3d 753, 762 (11th Cir. 2010). The “clearly established”

requirement shields from liability “all but the plainly incompetent

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 41 of 55

23-11452 Opinion of the Court 41

or one who is knowingly violating the federal law.” Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002) (citation omitted).

Three limitations on the legal authorities that plaintiffs may

use to advance their claims ensure that the governing law is, in fact,

“clearly established” before a plaintiff may avoid a qualified-im-

munity defense: the substance of the law on which the plaintiff may

rely, the jurisdiction of the case law the plaintiff may invoke, and

the timing of the issuance of that case law. Each of these limita-

tions contributes to providing defendants with notice of the gov-

erning law.

First, we limit the substance of the law a plaintiff may use:

he “must point to (1) ‘case law with indistinguishable facts,’ (2) ‘a

broad statement of principle within the Constitution, statute, or

case law,’ or (3) ‘conduct so egregious that a constitutional right

was clearly violated, even in the total absence of case law.’” Crocker

v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021) (quoting Lewis v. City

of West Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009)).

Second, we limit the jurisdictions from which a plaintiff may

identify applicable law: the plaintiff must point “to binding deci-

sions of the Supreme Court of the United States, this Court, [or]

the highest court of the relevant state” (here, Georgia). Glasscox v.

City of Argo, 903 F.3d 1207, 1217 (11th Cir. 2018). Other

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 42 of 55

42 Opinion of the Court 23-11452

jurisdictions’ precedent cannot clearly establish the law in our Cir-

cuit. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir.

2003). 15

And third, we limit the timing of the relevant case law: plain-

tiffs may rely on only the case law issued at the time of the official’s

act, not on law that developed later. Harlow, 457 U.S. at 818. After

all, “[i]f objective observers cannot predict—at the time the official

acts—whether the act was lawful or not, and the answer must await

full adjudication in a district court years in the future, the official

deserves immunity from liability for civil damages.” Foy v. Holston,

94 F.3d 1528, 1534 (11th Cir. 1996).

Under these principles, Defendants are not entitled to quali-

fied immunity.

We start with Florence, who filed the 2012 warrant applica-

tion that led to Gervin’s arrest. We’ve already explained that offi-

cials violate clearly established Fourth Amendment law “if they

knowingly or recklessly make ‘false statements in an arrest affidavit

about the probable cause for an arrest in order to detain a citi-

zen . . . if such false statements were necessary to the probable

15 We are currently considering en banc whether to overrule our precedent

and to allow plaintiffs to defeat qualified immunity by relying on a robust con-

sensus of cases of persuasive authority. See Gilmore v. Ga. Dep’t of Corr., 111

F.4th 1118, 1135–36 (11th Cir.), reh’g en banc granted, opinion vacated, 119 F.4th

839 (11th Cir. 2024). For the reasons we explain below, our resolution of Gil-

more does not impact the outcome of this dispute; controlling Supreme Court

authority and the law of this Circuit clearly established the alleged constitu-

tional violations here.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 43 of 55

23-11452 Opinion of the Court 43

cause.’” Laskar, 972 F.3d at 1297 (alteration in original) (quoting

Jones v. Cannon, 174 F.3d 1271, 1285 (11th Cir. 1999)).

So when we draw all factual inferences in Gervin’s favor, as

we did in the discussion in the last section, Florence’s liability “fol-

lows immediately from the conclusion that the right was firmly es-

tablished.” Id. (cleaned up) (quoting District of Columbia v. Wesby,

583 U.S. 48, 64 (2018)). Because Florence did not assert (and the

record did not show) that Gervin violated his only actual probation

condition, Florence did not even have “‘arguable’ probable cause,”

Grider v. City of Auburn, 618 F.3d 1240, 1257 & n.25 (11th Cir. 2010),

or arguable reasonable suspicion, cf. Chandrasuwan, 820 F.3d at 696,

that Gervin violated his probation. And that means she does not

enjoy qualified immunity.

The same goes for Milton. Officers “cannot intentionally or

recklessly make material misstatements or omissions in later testi-

mony to continue detention.” Howard, 25 F.4th at 907 (citing Ma-

nuel, 580 U.S. at 369 n.8). Nor can they rely on an “invalid

charge . . . to continue” a detention. Chiaverini v. City of Napoleon,

602 U.S. 556, 563 (2024) (citing Rodriguez v. United States, 575 U.S.

348, 354–57 (2015)); see Wood, 323 F.3d at 882 (holding that “a crim-

inal prosecution . . . continued . . . without probable cause” can

violate the Fourth Amendment).

The Supreme Court held as much in 2017, when it con-

cluded that “tainted” legal process—by “fabricated evidence,” for

instance—may result in a Fourth Amendment violation, “[w]hat-

ever [the] precise form” of the tainted “proceeding.” Manuel, 580

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 44 of 55

44 Opinion of the Court 23-11452

U.S. at 369 n.8. So if a jury finds that Milton continued Gervin’s

2019 detention by recklessly making material misstatements or

omissions in the probation-revocation petition or at the probation-

revocation hearing, she violated Gervin’s clearly established consti-

tutional rights.

That much really isn’t up for dispute. Instead, Defendants

suggest we should award them qualified immunity because, at the

time of their relevant conduct, we had not “specifically addressed

whether a probation violation is a ‘criminal prosecution’ for pur-

poses of a § 1983 claim for malicious prosecution.” Smith v. Mitchell,

856 F. App’x 248, 250 (11th Cir. 2021). We are not persuaded.

Since the inception of our Fourth Amendment malicious-

prosecution case law, we have confirmed that the nature of the le-

gal process causing a seizure is irrelevant to whether a plaintiff may

state a Fourth Amendment violation and, therefore, a Section 1983

claim. “Our oldest decisions on the subject explained that ‘mali-

cious prosecution’ is only a ‘shorthand way of describing’ certain

claims for unlawful seizure, not an ‘independent Fourth Amend-

ment right . . . to be free from a malicious prosecution.’” Laskar,

972 F.3d at 1294 (quoting Whiting, 85 F.3d at 584). So, we’ve held,

to “avoid an order of dismissal,” a plaintiff need only “base[] his

claim—whatever he calls it—on some actual unlawful, forcible, re-

straint of his person.” Whiting, 85 F.3d at 584; see also Kelly, 21 F.3d

at 1553–55 (reviving a claim of malicious prosecution under the

Fourth Amendment without considering whether the plaintiff sat-

isfied the common-law elements). And here, Gervin does just that.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 45 of 55

23-11452 Opinion of the Court 45

Plus, even under the line of cases on which Defendants rely,

Gervin could still prove “the elements of the common law tort of

malicious prosecution.” Wood, 323 F.3d at 881. True, our precedent

relied on a Georgia statute authorizing malicious-prosecution suits

premised on prior “criminal prosecution[s].” Uboh, 141 F.3d at 1004

(quoting O.C.G.A. § 51–7–40); see also Wood, 323 F.3d at 881–82

(quoting Uboh, 141 F.3d at 1004); Paez, 915 F.3d at 1285 (quoting

Wood, 323 F.3d at 882); Williams, 965 F.3d at 1157 (quoting Paez, 915

F.3d at 1285); Butler, 85 F.4th at 1111 (same). But that fact does not

suggest Defendants could not violate the Fourth Amendment

through civil proceedings.

Before Florence’s and Milton’s relevant conduct, the Su-

preme Court clearly established that the common law of 1871 con-

trols the scope of a Section 1983 claim. See Kalina v. Fletcher, 522

U.S. 118, 123 (1997) (concluding that Section 1983 must be “con-

strued in the light of common-law principles that were well settled

at the time of its enactment”). So the “the elements of the com-

mon law tort of malicious prosecution,” Wood, 323 F.3d at 881, that

Gervin must prove are those of the tort as it existed around the

time Section 1983 was enacted, see Laskar, 972 F.3d at 1294 (citing

Kalina, 522 U.S. at 123); Williams, 965 F.3d at 1157, not as Georgia

codified it into statutes at the turn of the twenty-first century, cf.

Uboh, 141 F.3d at 1004 (relying on Georgia statutory law).

And as we’ve explained, the common law of that period did

not limit malicious-prosecution claims to redress for wrongful

criminal prosecutions. In fact, we recognized more than a century

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 46 of 55

46 Opinion of the Court 23-11452

ago that a person may state a common-law claim for malicious

prosecution if someone abused civil process to “maliciously arrest[]

another.” Masterson, 72 F. at 140; see also Mitchell, 75 Ga. at 405

(“[W]hen an action was sued out maliciously and without probable

cause, whereby the person of the defendant was arrested . . . , then

in such a case the action would lie.”).

To translate these points back into the language of our qual-

ified-immunity precedent, two “broad statement[s] of principle

within” our “case law,” Crocker, 995 F.3d at 1240, independently re-

fute the suggestion that Gervin may not state a Fourth Amend-

ment claim because the legal process causing his arrest and contin-

ued detention were probation-revocation proceedings. First, it’s

well established that “the Fourth Amendment protects against

‘searches’ and ‘seizures’ (and not ‘prosecutions’).” Whiting, 85 F.3d

at 584. And Defendants’ conduct caused Gervin to be seized and

detained for several months. Second, the Supreme Court has long

held that the common law of 1871, not today, helps define Section

1983 claims. Kalina, 522 U.S. at 123. And the law at that time was

unanimous that both criminal and civil proceedings leading to an

arrest were tortious conduct remedied by malicious-prosecution

claims. See Masterson, 72 F. at 140; Kolka, 71 N.W. at 559 (surveying

nineteenth-century case law).

Given these two principles, any reasonable officer would

know that a seizure that was constitutionally infirm because it was

secured through false or misleading evidence would create dam-

ages liability “no matter what kind of ” legal process led to that

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 47 of 55

23-11452 Opinion of the Court 47

seizure. See Jarrard v. Sheriff of Polk Cnty., 115 F.4th 1306, 1325 (11th

Cir. 2024); see also United States v. Lanier, 520 U.S. 259, 271 (1997)

(confirming “a general constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific con-

duct in question, even though ‘the very action in question has not

previously been held unlawful’” (cleaned up)). So Florence and

Milton do not enjoy qualified immunity.

IV. CONCLUSION

For the reasons we’ve discussed, we affirm the district

court’s partial denial of Defendants’ motion for summary judg-

ment and remand the case for further proceedings consistent with

this opinion.

AFFIRMED AND REMANDED.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 48 of 55

23-11452 WILSON, J., Concurring 1

WILSON, Circuit Judge, joined by ABUDU, Circuit Judge, Concur-

ring:

I agree with the majority’s holding that, viewing the evi-

dence in the light most favorable to DeShawn Gervin, his claim

under 42 U.S.C. § 1983 for a violation of his Fourth Amendment

rights should survive summary judgment. I also agree that the Pro-

bation Officer Defendants cannot claim qualified immunity. But I

concur only after reckoning with a body of Supreme Court and

Eleventh Circuit precedent that may, at first glance, seem to dictate

a different result. In the end, however, a deeper review of Fourth

Amendment precedent directs the proper outcome here.

The Fourth Amendment protects against unreasonable sei-

zures both “before the formal onset of a criminal proceeding” and

“when legal process itself goes wrong.” Manuel v. City of Joliet, 580

U.S. 357, 359 (2017). To make out a claim based on an unreasonable

seizure pursuant to legal process, plaintiffs must prove both the el-

ements of the common-law tort of malicious prosecution and show

a violation of their Fourth Amendment rights. Butler v. Smith, 85

F.4th 1102, 1111 (11th Cir. 2023). We have repeatedly, but not ex-

clusively, listed “‘a criminal prosecution instituted or continued by

the present defendant’” as the first element of the malicious prose-

cution tort. E.g., id. (quoting Paez v. Mulvey, 915 F.3d 1276, 1285

(11th Cir. 2019)); see also Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir.

2018). But see Thompson v. Clark, 596 U.S. 36, 44 (2022) (describing

the first element of the malicious prosecution tort as “the suit or

proceeding was ‘instituted without any probable cause’”); Sylvester

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 49 of 55

2 WILSON, J., Concurring 23-11452

v. Fulton Cnty. Jail, 94 F.4th 1324, 1329 (11th Cir. 2024) (listing ele-

ments for a Section 1983 malicious prosecution claim as “(1) the

legal process justifying the plaintiff’s seizure was constitutionally

infirm, (2) the seizure would not otherwise be justified without le-

gal process, and (3) the criminal proceedings against the plaintiff

terminated in his favor” (alterations adopted and internal quotation

marks omitted)); Luke v. Gulley, 50 F.4th 90, 95 (11th Cir. 2022) (per

curiam) (same).

The Probation Officers argue that Gervin’s claim fails be-

cause he cannot establish that there was a “criminal prosecution”

instituted against him. And precedent initially seems to back them

up. Cases from the Supreme Court and the Eleventh Circuit state

that the revocation of parole or probation is “‘not a stage of a crim-

inal prosecution.’” United States v. Dennis, 26 F.4th 922, 927 (11th

Cir. 2022) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)); see

also Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he revocation

of parole is not part of a criminal prosecution . . . .”). At first glance,

the inquiry ends here. Gervin’s claim derives from his detention for

probation revocation and probation revocation is not part of a

criminal prosecution, so he cannot meet the first element of his

claim. But it is worth taking a closer look.

To start, the Supreme Court has never suggested that peo-

ple on probation or parole lose their Fourth Amendment rights. To

be sure, states can require probationers or parolees to agree to war-

rantless searches as a condition of release. See Samson v. California,

547 U.S. 843, 846 (2006); United States v. Knights, 534 U.S. 112, 122

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 50 of 55

23-11452 WILSON, J., Concurring 3

(2001); Owens v. Kelley, 681 F.2d 1362, 1366 (11th Cir. 1982). But

without such laws or agreements, “[t]here is no question that the

Fourth Amendment’s protection against unreasonable searches

and seizures applies to probationers.” Owens, 681 F.2d at 1367 (cit-

ing Morrisey, 408 U.S. at 471).

The foundational Supreme Court cases that held that de-

fendants facing probation and parole revocations were not guaran-

teed the full suite of constitutional protections afforded to defend-

ants in criminal prosecutions recognized the same. In Morrissey, the

Court considered what process is due before revoking parole. 408

U.S. at 480–81. It reasoned that the liberty retained by a parolee,

albeit “[s]ubject to the conditions of his parole,” still “must be seen

as within the protection of the Fourteenth Amendment.” Id. at 482.

Even though “revocation of parole is not part of a criminal prose-

cution” such that “the full panoply of rights due a defendant in such

a proceeding does not apply,” the Court still contemplated that

“probable cause or reasonable ground” would be required to sus-

tain an arrest for “violation of parole conditions.” Id. at 480, 485.

Soon after, the Court recognized the same—that probable

cause would be required to sustain an “arrest and detention” for a

violation of conditions of release—for probation. Gagnon, 411 U.S.

at 781–82. These two cases show that while the process due in rev-

ocation hearings might not include every constitutional protection

for criminal prosecutions, like the right to counsel, due process still

requires a determination that the arrest was supported by probable

cause. And because the Court requires such a determination, it

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 51 of 55

4 WILSON, J., Concurring 23-11452

follows that probationers and parolees retain Fourth Amendment

protections against arrests made without probable cause.

Additionally, nearly all 1 of the cases addressing which con-

stitutional protections apply in parole or probation revocations af-

ter Morrissey and Gagnon considered which of the Fifth and Sixth

Amendment rights in criminal trials extend to revocation hearings.

See Maj. Op. at 20 n.8 (collecting cases). This distinction—Fourth

Amendment versus Fifth or Sixth Amendment—matters because,

as the Majority Opinion rightly explains, “the Fourth Amendment

is different.” Maj. Op. at 19. Fifth and Sixth Amendment protec-

tions attach during “criminal case[s],” U.S. Const. amend. V., and

“criminal prosecutions,” id. amend. VI. 2 It makes sense that if rev-

ocations are not part of the criminal proceedings, the constitutional

1 In Pennsylvania Board of Probation & Parole v. Scott, the Supreme Court held

that the exclusionary rule does not apply in parole revocation hearings. 524

U.S. 357, 359 (1998). Although the rule operates by excluding evidence ob-

tained in violation of the Fourth Amendment, it is a judicially created rule that,

unlike the Fourth Amendment, does not “extend . . . beyond the criminal

trial.” Id. at 363–64.

2 The Fifth and Sixth Amendments apply at “critical stages” of the prosecution,

or “pretrial procedures that would impair defense on the merits if the accused

[were] required to proceed without counsel.” Gerstein v. Pugh, 420 U.S. 103,

122 (1975). The “adversary safeguards” provided by the Fifth and Sixth

Amendments “are not essential for the probable cause determination required

by the Fourth Amendment.” Id. at 120. Not because it is not a criminal pro-

ceeding, but because “[i]n most cases, however, their value would be too slight

to justify holding, as a matter of constitutional principle, that these formalities

and safeguards designed for trial must also be employed in making the Fourth

Amendment determination of probable cause.” Id. at 122.

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 52 of 55

23-11452 WILSON, J., Concurring 5

rights that attach during criminal trials would not be due. But the

Fourth Amendment is not restrained to criminal cases and prose-

cutions in the same way; it applies broadly to all “unreasonable

searches and seizures” not supported by “probable cause.” Id.

amend. IV. Looking to the Morrissey and Gagnon line of reasoning

on the Fifth and Sixth Amendments to limit what counts for Fourth

Amendment protection would be no wiser than trying to fit a

square peg in a round hole.

Because people on parole and probation retain Fourth

Amendment rights, they should be able to bring a Section 1983

claim when those rights are violated, such as when they are unlaw-

fully seized without probable cause. Other Supreme Court prece-

dent referencing the Fourth Amendment as a pretrial right does not

change this conclusion, even though parole and probation “arise[]

after the end of the criminal prosecution.” Gagnon, 411 U.S. at 781

(quoting Morrissey, 408 U.S. at 480).

For example, in Albright v. Oliver, the four-Justice plurality

referenced the Fourth Amendment as addressing “pretrial depriva-

tions of liberty.” 510 U.S. 266, 274 (1994) (plurality opinion). But it

did so in a much different context—considering whether to recog-

nize a Fourteenth Amendment substantive due process right to be

free of prosecution without probable cause. Id. at 268. In the pro-

cess of rejecting such a right based on substantive due process, the

plurality suggested that the plaintiff’s claim would instead have to

be judged under the Fourth Amendment because there was a sei-

zure. Id. at 271 (plurality opinion). It also more generally “noted

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 53 of 55

6 WILSON, J., Concurring 23-11452

the Fourth Amendment’s relevance to the deprivations of liberty”

and “to any extended restraint on liberty,” which often “go hand in

hand with criminal prosecutions” but also occur “following an ar-

rest.” Id. (plurality opinion) (citing Gerstein v. Pugh, 420 U.S. 103,

114 (1975)). With arrest, or “seizure,” as the touchstone, Albright

supports the availability of the Section 1983 claim in Gervin’s case.

The Court similarly referenced the Fourth Amendment’s

application to “pretrial confinement” in Manuel, 580 U.S. at 360.

There, the Court held that a criminal defendant could challenge his

pretrial detention, not just his arrest, even after a judge made a find-

ing of probable cause. Id. at 360–62. And Manuel’s holding, “that the

Fourth Amendment governs a claim for unlawful pretrial detention

even beyond the start of legal process,” id. at 369–70 (emphasis

added), makes sense in the context of the case. The plaintiff alleged

he was wrongfully held on criminal charges before trial based on

fabricated evidence. Id. at 362. The Court had no occasion to con-

sider other situations, like probation revocation. And the broader

Fourth Amendment principles sketched by the Manuel Court

equally encompass Gervin’s situation. As the Court explained:

The Fourth Amendment prohibits government offi-

cials from detaining a person in the absence of proba-

ble cause. That can happen when the police hold

someone without any reason before the formal onset

of a criminal proceeding. But it also can occur 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. Then, too,

a person is confined without constitutionally

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 54 of 55

23-11452 WILSON, J., Concurring 7

adequate justification. Legal process has gone for-

ward, but it has done nothing to satisfy the Fourth

Amendment’s probable-cause requirement. And for

that reason, it cannot extinguish the detainee’s Fourth

Amendment claim . . . .

Id. at 367 (citation omitted).

The references to the Fourth Amendment as a “pretrial”

right do not foreclose the application of the Fourth Amendment to

arrests for probation revocation. Indeed, the Fourth Amendment

seems to require us to recognize a Section 1983 claim because

Gervin was arrested and detained “without constitutionally ade-

quate justification.” Id. This approach is faithful to Albright and Ma-

nuel’s recognition that the Fourth Amendment prohibits detaining

a person without probable cause. See id.; Albright, 510 U.S. at 274.

It also adheres to Morrissey and Gagnon’s recognition that “probable

cause or reasonable ground” still must justify an arrest for “viola-

tion of parole conditions.” Morrissey, 408 U.S. at 485; see also Gag-

non, 411 U.S. at 781–82.

Finally, it bears repeating: the term “malicious prosecution”

is a bit of a misnomer. See Maj. Op. at 21–24. “A claim of malicious

prosecution under the Fourth Amendment is only ‘shorthand’ for

a claim of deprivation of liberty pursuant to legal process . . . .” Las-

kar v. Hurd, 972 F.3d 1278, 1292 (11th Cir. 2020) (citing Williams v.

Aguirre, 965 F.3d 1147, 1157–59 (11th Cir. 2020)); accord Thompson,

596 U.S. at 42. When analyzing these claims, we look to “whether

the seizure was justified, not whether the prosecution itself was

justified.” Laskar, 972 F.3d at 1292. After all, the Fourth

USCA11 Case: 23-11452 Document: 50-1 Date Filed: 06/09/2025 Page: 55 of 55

8 WILSON, J., Concurring 23-11452

Amendment prohibits unreasonable “searches and seizures,” not

unreasonable “prosecutions.” We need not allow a claim’s nick-

name to dictate its substance.

Because Supreme Court and Eleventh Circuit precedent

support the availability of a Section 1983 claim in Gervin’s case, I

concur.