# Harry Barnett v. Justin Elsmore

> Court of Appeals for the Eleventh Circuit · July 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11088481

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 2, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11088481

## How later opinions describe it (automated extraction)

- explaining that an officer USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 8 of 11 8 Opinion of the Court 23-12517 making an arrest based on probable cause “need not ‘investigate independently every claim of innocence”
- explaining that an officer is not required to resolve every inconsistency in the evidence before making an arrest
- holding a battery investiga- tion was not inadequate when an officer made an arrest based solely on an alleged victim’s statement without interviewing two eyewitnesses
- finding probable cause based only on a victim’s USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 9 of 11 23-12517 Opinion of the Court 9 statement when “[the victim’s] statement gave [the officer] every- thing he needed”
- explaining that the probable cause standard is whether “any particular officer,” not “all prudent” offic- ers, could believe there was a substantial chance of criminal activ- ity

## Opinion text

USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 1 of 11

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-12517
Non-Argument Calendar
____________________

HARRY BARNETT,

Plaintiff-Appellant,

versus

JUSTIN ELSMORE,
an individual and in his official capacity,
CITY OF KEY WEST,
a municipal corporation,

Defendants-Appellees.

____________________
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 2 of 11

2 Opinion of the Court 23-12517

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:22-cv-10089-LFL
____________________

Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Harry Barnett sued former Key West Police Officer Justin
Elsmore and the City of Key West, alleging a malicious prosecution
claim against Officer Elsmore and a failure to train claim against
the city. The district court granted Officer Elsmore and the city’s
motion to dismiss on qualified immunity grounds. Barnett appeals
the dismissal and the denial of leave to amend. We affirm.
1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In late 2015, Barnett took his sick dog to a veterinarian,
Thomas Householder. Dr. Householder misdiagnosed Barnett’s
dog, which led to the dog permanently losing sight. Beginning on
May 9, 2017, Barnett protested Dr. Householder’s veterinary clinic
by displaying signs on the bed of his red Chevy Colorado pick-up
truck, which he left parked in an unrestricted space across the street
from the clinic. He stopped by daily to maintain the signs.

1
Because the district court dismissed Barnett’s complaint, we assume the truth
of his well-pleaded factual allegations. McGroarty v. Swearingen, 977 F.3d 1302,
1306 (11th Cir. 2020).
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 3 of 11

23-12517 Opinion of the Court 3

On May 10, 2017, Kimberly Bryant, a hairdresser who
worked at a salon next to the clinic, called the police and falsely
reported the truck was illegally parked, causing Barnett to receive
a parking violation. On May 10, 2017, and May 11, 2017, Linda
Simonet, an employee of the veterinary clinic, made ill-natured re-
marks to Barnett as he was maintaining his signs. On May 15, 2017,
Ms. Simonet took pictures of Barnett as he was sitting inside a
rented SUV near his truck and signs.
On May 17, 2017, Dr. Householder and Ms. Simonet filed
for civil injunctions against Barnett based on false allegations of
stalking and photographing. The state court granted the injunc-
tions and required Barnett to remain at least one hundred feet from
the clinic. Complying with the injunctions, Barnett moved his
truck farther from the clinic but continued to display the signs.
On May 22, 2017, Ms. Simonet and Ms. Bryant told the po-
lice that Barnett violated the injunctions on May 20, 2017, and
May 22, 2017. A police officer took their reports but did not arrest
Barnett. Later that day, Officer Elsmore interviewed both women.
Officer Elsmore interviewed Ms. Simonet at the veterinary clinic.
Ms. Simonet gave Officer Elsmore a copy of the injunction papers
and reported that Barnett drove by in a big red four door truck with
a camper cap. She also mentioned to Officer Elsmore that she was
a retired sheriff. Officer Elsmore did not ask Ms. Simonet follow-
up questions.
Officer Elsmore interviewed Ms. Bryant over the telephone.
Ms. Bryant told Officer Elsmore she saw Barnett and knew it was
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 4 of 11

4 Opinion of the Court 23-12517

him because she saw a picture of Barnett on Ms. Simonet’s phone.
Officer Elsmore did not ask for the picture. That night, based on
Ms. Bryant and Ms. Simonet’s statements, Officer Elsmore arrested
Barnett for violating the injunctions. The misdemeanor charges
were later nolle prossed.
Barnett sued Officer Elsmore for malicious prosecution, al-
leging that he was charged without probable cause. Barnett also
sued the city based on municipal liability, alleging it failed to train
its officers properly since Officer Elsmore arrested Barnett without
probable cause. Officer Elsmore and the city jointly moved to dis-
miss Barnett’s complaint. The district court granted the motion.
Barnett appeals the dismissal of his complaint and the denial of
leave to amend.

STANDARD OF REVIEW
We review de novo a district court’s grant of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), accepting
the factual allegations in the complaint as true and construing them
in the light most favorable to the plaintiff. McGroarty v. Swearingen,
977 F.3d 1302, 1306 (11th Cir. 2020) (citation omitted). We also
review de novo a district court’s legal conclusion that a proposed
amendment would be futile in denying leave to amend. Harris v.
Ivax Corp., 182 F.3d 799, 802–03 (11th Cir. 1999).

DISCUSSION
We first address the district court’s dismissal of Barnett’s
claim against Officer Elsmore. Then, we consider the dismissal of
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 5 of 11

23-12517 Opinion of the Court 5

the claim against the city. And finally, we discuss the district court’s
denial of leave to amend.
Malicious Prosecution Claim Against Officer Elsmore
Qualified immunity protects officers acting within their dis-
cretionary authority unless a plaintiff can show (1) that the officer
violated a constitutional right, and (2) that the right violated was
clearly established. Grider v. City of Auburn, 618 F.3d 1240, 1256
(11th Cir. 2010). Here, Barnett alleged his Fourth Amendment
rights were violated by malicious prosecution when he was
charged with violating the injunctions. Being held without proba-
ble cause is an unreasonable seizure that violates the Fourth
Amendment. Id. But the existence of probable cause defeats a
Fourth Amendment malicious prosecution claim. Id.
“[P]robable cause exists when the facts, considering the to-
tality of the circumstances and viewed from the perspective of a
reasonable officer, establish ‘a probability or substantial chance of
criminal activity.’” Washington v. Howard, 25 F.4th 891, 899 (11th
Cir. 2022) (quoting D.C. v. Wesby, 583 U.S. 48, 57 (2018)). It “does
not require conclusive evidence and ‘is not a high bar.’” Id. (quot-
ing Wesby, 583 U.S. at 57). And an officer is generally entitled to
rely on a victim’s complaint as support for probable cause. Rankin
v. Evans, 133 F.3d 1425, 1441 (11th Cir. 1998).
For qualified immunity purposes, an officer does not need
actual probable cause but only arguable probable cause. Grider, 618
F.3d at 1257. In other words, it is enough if “reasonable officers in
the same circumstances and possessing the same knowledge as the
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 6 of 11

6 Opinion of the Court 23-12517

Defendants could have believed that probable cause existed to ar-
rest.” Id.
Here, Officer Elsmore had at least arguable probable cause
to charge Barnett. Two witnesses, Ms. Simonet and Ms. Bryant,
reported they saw Barnett drive by the veterinary clinic on two sep-
arate occasions, thus violating the injunctions. Ms. Simonet
worked at the clinic and had multiple previous interactions with
Barnett. Ms. Bryant worked at a neighboring business of the clinic.
Officer Elsmore interviewed them both, and they confirmed they
saw Barnett near the clinic. Officer Elsmore was entitled to rely on
their statements as probable cause to charge Barnett. See Rankin,
133 F.3d at 1441. And their statements were enough for Officer
Elsmore to reasonably believe there was a “probability or substan-
tial chance” that Barnett violated the injunctions. See Washington,
25 F.4th at 899.
Barnett contends that Officer Elsmore did not have probable
cause because another police officer took reports from Ms. Simo-
net and Ms. Bryant earlier that day but did not arrest Barnett. But
arguable probable cause turns on reasonableness and reasonable
officers can come to different conclusions as to whether they
should charge a suspect. See id. (explaining that the probable cause
standard is whether “any particular officer,” not “all prudent” offic-
ers, could believe there was a substantial chance of criminal activ-
ity). Thus, even if another officer did not believe there was proba-
ble cause, it would not make Officer Elsmore’s belief necessarily
unreasonable.
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 7 of 11

23-12517 Opinion of the Court 7

Barnett further argues Officer Elsmore did not have proba-
ble cause because he told Barnett he was being arrested for a fel-
ony, despite saying that the offense fell under a misdemeanor ex-
ception. But the focus of a Fourth Amendment malicious prosecu-
tion claim is on the legal process under which the plaintiff was held.
See Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020) (“Mali-
cious prosecution, in contrast, requires a seizure pursuant to legal
process. . . . A Fourth Amendment violation involving these sei-
zures occurs when legal process itself goes wrong—when, for ex-
ample, a judge’s probable-cause determination is predicated solely
on a police officer’s false statements.” (citations and quotations
omitted)). Here, according to Barnett’s complaint, he was charged
with misdemeanor violations of the injunctions. Whatever Officer
Elsmore told Barnett, it did not impact Barnett’s malicious prose-
cution claim.
Finally, Barnett argues that Officer Elsmore’s investigation
was so inadequate that it resulted in Barnett’s prosecution without
probable cause. Officer Elsmore, Barnett contends, did not ques-
tion evidence suggesting Barnett’s guilt; he did not gather more ev-
idence before making the arrest; and he ignored exculpatory evi-
dence about Barnett’s car that suggested Barnett’s innocence.
While an officer must conduct a reasonable investigation to
establish probable cause, he need not take “every conceivable
step. . . at whatever cost, to eliminate the possibility of convicting
an innocent person.” Tillman v. Coley, 886 F.2d 317, 321 (11th Cir.
1989); see also Rankin, 133 F.3d at 1436 (explaining that an officer
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 8 of 11

8 Opinion of the Court 23-12517

making an arrest based on probable cause “need not ‘investigate
independently every claim of innocence”). And an officer is not
required to forgo making an arrest because a suspect proclaims his
innocence. Davis v. City of Apopka, 78 F.4th 1326, 1342 (11th Cir.
2023).
An officer may not ignore “[c]oncrete evidence that obvi-
ously and definitively rules out probable cause,” Id. at 1344, but he
is not required to seek out exculpatory evidence, Kelly v. Curtis, 21
F.3d. 1544, 1551 (11th Cir. 1994). Nor is he required “to weigh the
evidence in such a way as to conclude that probable cause did not
exist.” Washington, 25 F.4th at 902. Ultimately, an officer is not
“required to sift through conflicting evidence or resolve issues of
credibility, so long as the totality of the circumstances present[ed]
a sufficient basis for believing that an offense ha[d] been commit-
ted.” Huebner v. Bradshaw, 935 F.3d 1183, 1188 (11th Cir. 2019).
Here, Ms. Simonet and Ms. Bryant told Officer Elsmore the
same story—that Barnett drove by the clinic two times. Based on
these statements, Officer Elsmore could have reasonably believed
there was enough for “a probability or substantial chance” that Bar-
nett violated the injunctions. See Washington, 25 F.4th at 899. Of-
ficer Elsmore was not required to interrogate Ms. Simonet and
Ms. Bryant and learn every conceivable detail of the incident or
take “every conceivable step” to eliminate the possibility of Bar-
nett’s innocence. See Tillman, 886 F.2d at 321; see also Huebner, 935
F.3d at 1190 (finding probable cause based only on a victim’s
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 9 of 11

23-12517 Opinion of the Court 9

statement when “[the victim’s] statement gave [the officer] every-
thing he needed”).
Once Officer Elsmore established probable cause, he was
not required to seek out exculpatory evidence, to forego making
an arrest, or to launch into an investigation so Barnett could pro-
claim his innocence. See Kelly, 21 F.3d at 1551; Davis, 78 F.4th at
1342; see also Huebner, 935 F.3d at 1190 (holding a battery investiga-
tion was not inadequate when an officer made an arrest based
solely on an alleged victim’s statement without interviewing two
eyewitnesses). The fact that Barnett was driving a different truck
when he was stopped—an hour after Officer Elsmore interviewed
Ms. Simonet, and presumably more time after Barnett was said to
have driven by the clinic—does not amount to “[c]oncrete evi-
2
dence that obviously and definitively rule[d] out probable cause.”
See Davis, 78 F.4th at 1344; id. at 1349 (explaining that an officer is
not required to resolve every inconsistency in the evidence before
making an arrest).

2
It’s worth noting that, as alleged, Barnett used a red truck to display his pro-
test signs and drove other vehicles to and from the clinic to maintain the signs.
But even assuming that Officer Elsmore, who went to the veterinary clinic to
interview Ms. Simonet, did not see the red truck and did not know Barnett
used multiple cars, the fact that Barnett was in a different colored truck over
an hour after the suspected offense would not rise to concrete evidence that
would preclude a finding of probable cause. See Davis, 78 F.4th at 1344.
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 10 of 11

10 Opinion of the Court 23-12517

Indeed, the alleged exculpatory evidence here is much
weaker than evidence this Court previously found ruled out prob-
able cause, such as “multiple tattoos on the perpetrator’s arm,
which the suspect did not have; documents showing authorization
to be in a house, which conclusively established innocence; or a
description of a marijuana-seller in her twenties while the person
arrested was in her forties.” See id. at 1344 (cleaned up) (citing Elev-
enth Circuit cases). Officer Elsmore was not required “to weigh
the evidence in such a way as to conclude that probable cause did
not exist.” See Washington, 25 F.4th at 902. Based on Ms. Simonet’s
and Ms. Bryant’s statements, Officer Elsmore could have reasona-
bly believed Barnett violated the injunctions, and he was not re-
quired “to sift through conflicting evidence or resolve issues of
credibility” before making the arrest. Huebner, 935 F.3d at 1188.
Municipal Liability Claim Against the City of Key West
For municipal liability, a plaintiff must show: “(1) that his
constitutional rights were violated; (2) that the municipality had a
custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the
violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Since Barnett failed to plead that his Fourth Amendment rights
were violated by Officer Elsmore, he also necessarily failed to plead
any underlying constitutional violation for his municipal liability
claim against the city. Id.
USCA11 Case: 23-12517 Document: 34-1 Date Filed: 07/02/2025 Page: 11 of 11

23-12517 Opinion of the Court 11

Denial of Leave to Amend Complaint
Typically, a district court must give a pro se plaintiff at least
one chance to amend before the district court dismisses the com-
plaint with prejudice. Woldeab v. DeKalb Cnty. Bd. of Educ., 885 F.3d
1289, 1291 (11th Cir. 2018). But a district court need not grant leave
to amend when “a more carefully drafted complaint could not state
a claim.” Id. (citation omitted).
Here, Barnett could not state a claim for malicious prosecu-
tion as the facts show that there was at least arguable probable
cause for the misdemeanor charges. Indeed, the crux of Barnett’s
allegations is that Dr. Householder, Ms. Simonet, and Ms. Bryant
lied to have injunctions granted against Barnett and lied to have
Barnett arrested for violating those injunctions. As to Officer Els-
more, however, the allegations are simply that he should have
done more to discover that the others were lying. We have clearly
rejected such an argument. See, e.g., Davis, 78 F.4th at 1351 (“[Plain-
tiff] asks us to assume the role of Investigator-in-Chief and criticize
the investigation the officers made, finding it wanting based on his
assertions that they should have done more or done it better. He
assumes that if the officers had interviewed more people, or asked
more questions of those they did interview, they might have found
something to exonerate him. His invitation . . . runs directly con-
trary to binding precedent.”).
AFFIRMED.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11088481. Public record. Not legal advice.