Jerri Macri v. James Brower

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 1 of 34

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13535

Non-Argument Calendar

____________________

JERRI MACRI,

REBECCA MACRI,

ZACHARY WHITE,

DALTHEA JO FORD,

as executor of the estate of Danny White,

Plaintiffs-Appellees-Cross Appellants,

ALICIA WHITE,

f.k.a. Alicia Lamb,

Plaintiff-Appellee,

versus

JAMES BROWER,

Georgia Bureau of Investigation

Special Agent,

SHANE MIMS,

Agent for the Mid-South Narcotics Task Force,

Defendants-Appellants-Cross Appellees,

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 2 of 34

2 Opinion of the Court 24-13535

SHERIFF GENE SCARBROUGH,

Tift County Sheriff, in his individual and

in his official capacity,

Defendant.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cv-03240-SDG

____________________

Before JORDAN, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM:

In 1888, Chief Justice Bleckley of the Supreme Court of

Georgia authored a famed two-sentence opinion:

A social, genial gentleman, fond of company and a

glass, by occupation a cigar–maker, who keeps his

sleeping apartment with the doors “blanketed,” in a

fit condition for privately gaming therein, and who

invites his friends at night to refresh themselves with

beer, but has in the room, besides barrels and bottles,

a table suitable for gaming, together with 11 packs of

cards, and 2 boxes of “chips,” one containing 80 chips

and the other 300, and a memorandum book with

names and numbers entered in it, and whose guests,

or some of them, retire hurriedly under the bed on

being surprised by a visit from the police at 1 o’clock

in the morning, may or may not be guilty of the of-

fense of keeping a gaming–house. A verdict of guilty,

based on these and other inculpatory facts, such as the

rattle of chips and money, and some expressions

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 3 of 34

24-13535 Opinion of the Court 3

about $7 and $12, heard by the police on approaching

the premises, is warranted by the evidence, and is not

contrary to law.

Pacetti v. State, 7 S.E. 867, 868 (Ga. 1888). This case brings the rattle

of coins, tokens, and cash into the twenty-first century and asks

when Georgia law enforcement officers can be held liable for their

misconception of Georgia’s gambling laws. A pair of families—

whose business was in coin-operated amusement machines—sued

a number of Georgia law enforcement officers under 42 U.S.C.

§ 1983. This interlocutory appeal requires us to decide whether

Georgia Bureau of Investigation Special Agent James Brower and

Tift County Sheriff’s Deputy Shane Mims are entitled to summary

judgment based on qualified immunity from the families’ com-

plaint of malicious prosecution.

I

The plaintiff-appellee/cross-appellant, Jerri Macri, is a busi-

nessman who lived in Enigma, Georgia. He and his business part-

ner, Danny White, owned coin-operated amusement machines

through a business called M&M Amusements. 1

A coin-operated amusement machine is, for example, a pin-

ball machine, a claw machine, an arcade game, a Skeeball machine,

or an air hockey table if its “operation requires the payment of or

1 Mr. White passed away during this litigation, and the executor of his estate

was substituted as a party. In May of 2014, the name of M&M Amusements

was changed to M&W Amusements. We use the name M&M Amusements

herein for consistency with the language of the challenged arrest warrant affi-

davits.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 4 of 34

4 Opinion of the Court 24-13535

the insertion of a coin, bill, other money, token, ticket, card, or sim-

ilar object.” O.C.G.A. § 50-27-70(b)(2)(A)(i), (v), (viii), (xv), (xvi).

Coin-operated amusement machines are legal gambling machines

regulated by the Georgia Lottery. A few Georgia rules governing

coin-operated amusement machines are important to note at the

outset. First, the owner of the machines must obtain a master li-

cense. Second, when the machine is placed in a place of business,

the owner of that establishment must obtain a location license.

Third, the owner of the establishment cannot also own the coin-

operated amusement machine. Fourth, winnings from the ma-

chines cannot be paid in cash, and a successful play must be re-

warded with store merchandise, store credit, or Georgia lottery

tickets. Fifth, and finally, the master license holder and the location

license holder must evenly divide the proceeds after an allocated

percentage is paid to the Georgia Lottery.

Together, Mr. Macri and Mr. White placed their various

coin-operated amusement machines in convenience stores

throughout Tift County, Georgia. M&M held a valid master license

for its machines. Mr. White’s son—plaintiff-appellee/cross-appel-

lant Zachary White (whom we’ll refer to as Zachary)—helped his

father’s business in any way he could. This involved driving to the

convenience stores, getting the proceeds from the machines, fixing

the machines as needed, and retrieving receipts from the machines.

Mr. Macri’s then-wife, plaintiff-appellee/cross-appellant Rebecca

Macri, also supported her husband’s business—for example, by bal-

ancing ledgers. Lastly, plaintiff-appellee Alicia White, née Lamb,

was Zachary’s then-girlfriend and is now his wife. In early 2014, she

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 5 of 34

24-13535 Opinion of the Court 5

acquired a local gold-buying business called the Lucky Shamrock.

The Lucky Shamrock had nine of M&M’s coin-operated amuse-

ment machines inside for patrons to play.

During his 2012 campaign for Tift County Sheriff, incum-

bent Sheriff Gene Scarbrough received “complaints from citizens”

that coin-operated amusement machine locations in Tift County

were “illegally paying cash for winnings.” D.E. 79-1 ¶ 10. See also

D.E. 90-1. During this time, Deputy Sheriff Mims was assigned to

the Mid-South Narcotics Task Force. The Mid-South Narcotics

Task Force was an enforcement unit with local law enforcement

officers from the Crisp, Turner, and Tift Counties’ Sheriff’s Offices.

In addition to its namesake narcotics investigations, the Task Force

also investigated “vice-related crimes” including illegal gambling.

D.E. 77-1 ¶ 5. See also D.E. 85-1; D.E. 86.

Meanwhile, the Georgia Bureau of Investigation formed a

Commercial Gambling Unit in August of 2013. Agent James

Brower was a Special Agent with the GBI. That same month, Au-

gust of 2013, these two agencies—the Task Force and the GBI—

began collaborating on an investigation that led them to the Macris

and the Whites.

The impetus of this investigation was a local store owner,

who approached the Task Force and told them that M&M owned

coin-operated amusement machines in convenience stores that

paid cash winnings. And more importantly, the store owner told

the Task Force that the owners of M&M instructed these conven-

ience store owners to make cash payouts.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 6 of 34

6 Opinion of the Court 24-13535

From there, the investigation was underway. From July of

2013 to July of 2014, agents regularly met with this store owner to

collect the proceeds from the machines at his store and to record

the proceeds retained by M&M. The investigation surveilled the

Macris and the Whites and confirmed that Zachary collected pro-

ceeds from the machines to support his father’s business during this

time period. The Task Force also uncovered checks paid from

M&M to Mrs. Macri for her work in support of her husband’s busi-

ness.

The investigation identified six different convenience stores

where M&M owned machines and began controlled plays to see if

they would be given cash payouts. On March 19, 2013, and April

17, 2013, an agent of the Task Force played the amusement ma-

chines at the Lucky Shamrock and was paid cash for his winnings.

In December of 2013, an agent interviewed the then-owner of the

Lucky Shamrock, and she stated that she paid cash to winners and

that the owners of the machines “told her it was legal to pay cash

and instructed her to do so.” D.E. 79-1 ¶ 42. See also D.E. 90-1. An

agent returned on January 16, 2014, played the M&M amusement

machines, and received cash winnings. The joint task force contin-

ued to conduct these controlled plays and received cash payouts

for wins at the five other locations on nine occasions spanning from

March 20, 2014, to July 1, 2014. These agents also witnessed cus-

tomers being paid cash for amusement machine winnings.

Special Agent Brower generally did not conduct undercover

operations but rather focused his investigation on the M&M paper

trail. Through his record searches, he discovered that, on January

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 7 of 34

24-13535 Opinion of the Court 7

15, 2014, Mrs. White applied for registration as a dealer in precious

metals for the Lucky Shamrock. He also collected bank records

showing that Mrs. White opened a small business account for the

Lucky Shamrock on January 15, 2014. Lastly, he collected check

deposit records showing that, in April of 2014, Mrs. Macri depos-

ited five checks from M&M’s operating account into her personal

bank account.

On July 6, 2014, Deputy Mims swore to warrant affidavits to

arrest Mr. Macri, Mr. White, Zachary, Mrs. White, and Mrs. Macri

for commercial gambling. The warrants were issued by a Tift

County magistrate judge. The following day, on July 7, 2014, they

were each arrested and booked into the Tift County Jail.

When Mr. White was arrested, officers found cocaine and a

burned marijuana cigarette. So on July 8, 2014, Deputy Mims

swore out and obtained a second arrest warrant for Mr. White for

the offenses of possession of marijuana and the possession of or

manufacturing of schedule I or II drugs. The following day, on July

9, 2014, Mrs. Macri, Zachary, and Mrs. White were released on

bond from the Tift County Jail.

On July 11, 2014, Deputy Mims signed affidavits to support

additional arrest warrants for Mr. Macri, Mr. White, and Zachary

for commercial gambling. A magistrate judge of Tift County issued

the July 11 warrants. Zachary was arrested for a second time, and

he bonded out of the jail on July 14, 2014. Mr. White and Mr. Macri

were eventually released on bond in mid-to-late July of 2014.

On July 15, 2014, a Tift County grand jury indicted all five

plaintiffs for charges of commercial gambling and conspiracy to

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 8 of 34

8 Opinion of the Court 24-13535

commit commercial gambling. Nearly six years later, in June of

2020, the district attorney decided to discontinue the prosecution

due to the Georgia Court of Appeals’ interpretation of the com-

mercial gambling statutes, which we discuss later. The trial court

entered a nolle prosequi on the pending charges.

On August 10, 2021, the Macris and the Whites brought this

action against Sheriff Scarbrough, Deputy Mims, and Special Agent

Brower. They asserted a malicious prosecution claim under 42

U.S.C. § 1983 and a state law conversion claim for the seizure of

their property.

The parties filed cross-motions for summary judgment. Be-

fore us is the district court’s denial of summary judgment to Dep-

uty Mims as to the July 6 arrest warrants and Zachary’s July 11 war-

rant; the district court held that Deputy Mims was not entitled to

qualified immunity because he should have known the applications

for the warrants for the plaintiffs’ arrests lacked probable cause.

Also on appeal is the denial of qualified immunity to Special Agent

Brower as to the arrest warrant for Mrs. White. The district court

held that there was sufficient evidence for a jury to conclude that

Special Agent Brower provided Deputy Mims with misstatements

to support Mrs. White’s warrant. 2 The district court granted quali-

fied immunity to Special Agent Brower for his involvement in the

rest of the warrants and to Deputy Mims for the July 11 warrants

2 The district court granted Sheriff Scarbrough qualified immunity based on

his de minimis role in instituting or continuing the criminal prosecutions, and

that issue is not presently before us. The court also dismissed the conversion

claims, and that dismissal is likewise not an issue on appeal.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 9 of 34

24-13535 Opinion of the Court 9

against Mr. Macri and Mr. White and denied the plaintiffs’ motion

for summary judgment.

II

A district court’s denial of summary judgment on the basis

of qualified immunity is an immediately appealable collateral order

if it solely concerns the pure legal decision of “(1) whether the im-

plicated federal constitutional right was clearly established and

(2) whether the alleged acts violated that law.” Koch v. Rugg, 221

F.3d 1283, 1294 (11th Cir. 2000) (emphasis omitted).

We review de novo “a district court’s disposition of a sum-

mary judgment motion based on qualified immunity, applying the

same legal standards as the district court.” Durruthy v. Pastor, 351

F.3d 1080, 1084 (11th Cir. 2003). “[W]e are required to resolve all

issues of material fact in favor of the plaintiff.” Lee v. Ferraro, 284

F.3d 1188, 1190 (11th Cir. 2002) (citing Sheth v. Webster, 145 F.3d

1231, 1236 (11th Cir. 1998)). “We then answer the legal question of

whether the defendant is entitled to qualified immunity under that

version of the facts.” Id. (quoting Thornton v. City of Macon, 132 F.3d

1395, 1397 (11th Cir. 1998)) (alterations adopted).

III

To establish a malicious prosecution claim under § 1983, a

plaintiff “must prove both ‘a violation of his Fourth Amendment

right to be free of unreasonable seizures’ and ‘the elements of the

common law tort of malicious prosecution.’” Williams v. Aguirre,

965 F.3d 1147, 1157 (11th Cir. 2020) (quoting Paez v. Mulvey, 915

F.3d 1276, 1285 (11th Cir. 2019)) (alterations adopted).

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 10 of 34

10 Opinion of the Court 24-13535

The elements of the common law tort of malicious prosecu-

tion are “(1) a criminal prosecution instituted or continued by the

present defendant; (2) with malice and without probable cause;

(3) that terminated in the plaintiff accused’s favor; and (4) caused

damage to the plaintiff accused.” Paez, 915 F.3d at 1285 (quoting

Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003)). The plaintiff

“must prove that he suffered a seizure pursuant to legal process

that violated the Fourth Amendment.” Laskar v. Hurd, 972 F.3d

1278, 1284 (11th Cir. 2020). “To meet this burden, a plaintiff must

establish (1) that the legal process justifying his seizure was consti-

tutionally infirm and (2) that his seizure would not otherwise be

justified without legal process.” Williams, 965 F.3d at 1165. “A

Fourth Amendment violation involving these seizures occurs

‘when legal process itself goes wrong—when, for example, a

judge’s probable-cause determination is predicated solely on a po-

lice officer’s false statements.’” Id. at 1158 (quoting Manuel v. City of

Joliet, 580 U.S. 357, 367 (2017)). “In these situations, legal process

has gone forward, but it has done nothing to satisfy the Fourth

Amendment’s probable-cause requirement.” Id. (alteration

adopted) (internal quotation marks omitted).

Nevertheless, and notwithstanding a prima facie showing of

these elements, the doctrine of qualified immunity shields a gov-

ernment official who perform discretionary functions from civil li-

ability if she does not violate clearly established rights. See, e.g., No-

lin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity allows

“government officials to carry out their discretionary duties

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 11 of 34

24-13535 Opinion of the Court 11

without the fear of personal liability or harassing litigation.” Dur-

ruthy, 351 F.3d at 1087 (citation omitted). In this Circuit, it shields

“all but the plainly incompetent or one who is knowingly violating

the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(citation omitted).

Where, as here, the parties do not quarrel over discretionary

authority, we move to the two-part qualified immunity inquiry,

asking “whether the facts that a plaintiff has alleged or shown make

out a violation of a constitutional right, and [ ] if so, whether the

right at issue was clearly established at the time of the defendant’s

alleged misconduct.” Underwood v. City of Bessemer, 11 F.4th 1317,

1328 (11th Cir. 2021) (internal quotation marks omitted). We may

analyze these two prongs in any order. See Pearson v. Callahan, 555

U.S. 223, 242 (2009); Underwood, 11 F.4th at 1328. Qualified immun-

ity will shield the defendant-official from civil liability if a plaintiff

fails either prong of the analysis. See Underwood, 11 F.4th at 1328.

As its absence is an element of both the Fourth Amendment

violation and the common law tort, “the presence of probable

cause defeats a claim of malicious prosecution.” Black v. Wigington,

811 F.3d 1259, 1267 (11th Cir. 2016). “The doctrine of qualified im-

munity extends that latitude further, protecting an officer against

liability provided that she had arguable probable cause.” Butler v.

Smith, 85 F.4th 1102, 1108 (11th Cir. 2023) (emphasis in original).

A

We begin with Special Agent Brower. To prevail on a mali-

cious prosecution claim against an official “who did not apply for

the warrant,” the plaintiffs must establish that the official

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 12 of 34

12 Opinion of the Court 24-13535

“intentionally or recklessly made misstatements or omissions nec-

essary to support the warrant.” Laskar, 972 F.3d at 1296 (citation

omitted). This requires a showing that the “official made false state-

ments or omitted information either intentionally or in reckless dis-

regard for the truth and that after deleting the misstatements, the

warrant affidavit is insufficient to establish probable cause.’” Id. (al-

terations adopted) (internal quotation marks omitted). In other

words, to survive summary judgment, Mrs. White must show that

Special Agent Brower provided “materially false statements to sup-

port the arrest warrant.” Williams, 965 F.3d at 1167.

It is undisputed that Special Agent Brower did not draft or

swear to the warrant to arrest Mrs. White. Viewing the facts in the

light most favorable to the plaintiffs, Special Agent Brower pro-

vided two bases for the warrant: (1) the material statement that,

“On 01/15/2014 Alicia Lamb [n/k/a White] applied for a license

for the Lucky Shamrock and has operated the business since that

date. Lamb also opened a checking account for that business[;]”

and (2) the general theory allegedly concocted by Special Agent

Brower that the amusement machine owner can be charged with

commercial gambling if the store owner made cash payouts to

players. See D.E. 81-2 ¶ 61; D.E. 91-1 ¶ 62.

1

Special Agent Brower challenges the district court’s determi-

nation that he intentionally or recklessly provided false infor-

mation in support of Mrs. White’s arrest warrant. We hold the dis-

trict court erred by characterizing the evidence as to Mrs. White’s

ownership as “competing.” D.E. 107 at 39. Critically, the question

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 13 of 34

24-13535 Opinion of the Court 13

is not simply whether Mrs. White actually owned the Lucky Sham-

rock when the January 16, 2014, cash payout was made; the correct

inquiry is whether Special Agent Brower acted with intentional or

reckless disregard for the truth when he relied on the license appli-

cation submitted by Mrs. White to establish the date that she took

over the business. See Laskar, 972 F.3d at 1296.

Some more background about the Lucky Shamrock is help-

ful. The Lucky Shamrock was a gold-buying business. The busi-

ness’ primary source of revenue, however, came from the nine

coin-operated amusement machines inside the establishment. In

2014, Mrs. White acquired the Lucky Shamrock from a non-party,

Sonya Howard. Mrs. White did not, however, purchase the busi-

ness from Mrs. Howard; Mrs. Howard voluntarily transferred it

without compensation because she just “wanted it out of her

name.” D.E. 71-1 at 59:15–24. This transfer occurred some time in

early 2014, and for Mrs. White’s part, was signified by Mrs. White

“get[ting] the power transferred to [her] name[,]” and applying for

“everything you’re supposed to do.” Id. at 18:17–19:8.

Mrs. White asserts that she “began” her “official ownership”

of the Lucky Shamrock in February or March of 2014. D.E. 77-15

¶ 8. Yet she listed herself as the “active manager of the business” on

the application for registration as a dealer in precious metals re-

viewed by Special Agent Brower. See D.E. 81-3 at 25. The applica-

tion, dated January 15, 2024, requested the “names of any other

persons owning any interest in the operation of this business[,]”

and Mrs. White listed none. Id. at 27. Mrs. White further confirmed

that she had “obtained a business license from the governing

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 14 of 34

14 Opinion of the Court 24-13535

authority” for the Lucky Shamrock, and she swore to the truthful-

ness of this information. See id. The record is devoid of evidence

(or inferences) showing how or why it was unreasonable to rely on

Mrs. White’s own sworn statement that no other person had an

interest in operating the business on January 15, much less reckless

or intentional to rely on it. Cf. District of Columbia v. Wesby, 583 U.S.

48, 57 (2018) (Probable cause “requires only a probability or sub-

stantial chance of criminal activity, not an actual showing of such

activity.”) (internal quotation marks and citation omitted).

The plaintiffs claim that Special Agent Brower “knew that

Mrs. White did not own the Lucky Shamrock on January 15, 2014,

and discussed that fact in an e-mail.” D.E. 77-1 ¶ 61. This statement

is unsupported by the email even when viewing the facts in the

light most favorable to the plaintiffs. The email states there was a

location license issued to “Lucky Shamrock Buyers” from Decem-

ber 9, 2013, until March 20, 2014, as well as a location license for

“Alicia Lamb” issued on February 25, 2014. See D.E. 81-3 at 30. The

license for Lucky Shamrock Buyers had “no reporting at all.” Id.

This email does not state, or even imply, that Mrs. White did not

own the Lucky Shamrock until February or March of 2014.

This email demonstrates only that the location license issued

to the Lucky Shamrock entity temporally overlapped with the lo-

cation license for Mrs. White personally from February 25, 2014,

until March 20, 2014. [Id.] One can only speculate about how Spe-

cial Agent Brower was expected to infer from the existence of the

non-reporting Lucky Shamrock Buyers license that Mrs. White

could not have owned the Lucky Shamrock as of January 15, 2014.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 15 of 34

24-13535 Opinion of the Court 15

And, of course, mere speculation cannot avoid summary judg-

ment. E.g., Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.

2005) (“Speculation does not create a genuine issue of fact; instead,

it creates a false issue, the demolition of which is a primary goal of

summary judgment.”) (emphasis and citation omitted).

Because there is nothing in the record to transform this

email into an affirmative indication that Mrs. White did not own

or operate the Lucky Shamrock at the time of the controlled play

on January 16, 2014, there is no evidence (or inference) of an inten-

tional or reckless falsehood attributable to Special Agent Brower.

This is not a case where the investigator “possessed information

giving rise to an exculpatory inference but did nothing to examine

the easily discoverable facts that would confirm or contradict that

inference.” Gervin v. Florence, 139 F.4th 1236, 1249 (11th Cir. 2025)

(internal quotation marks and citation omitted). Indeed, Mrs.

White still cannot pinpoint the exact date in early 2014 when she

took over the business. Under the circumstances, Special Agent

Brower reasonably relied on Mrs. White’s own license application.

Thus, Mrs. White has not established (or created an issue of fact)

that Special Agent Brower committed a constitutional violation by

stating that she owned the Lucky Shamrock as of January 15, 2014.

2

Next, we consider the plaintiffs’ argument and examine Spe-

cial Agent Brower’s misunderstanding of the law—specifically, that

making cash payouts constituted the crime of commercial gam-

bling. As will be relevant below, this was also Deputy Mims’ un-

derstanding of the law and theory of the case.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 16 of 34

16 Opinion of the Court 24-13535

Qualified immunity protects a law enforcement officer if

that officer had “a reasonable (even if mistaken) belief that a crime

has been committed.” Butler, 85 F.4th at 1108. See also Hunter v. Bry-

ant, 502 U.S. 224, 227 (1991) (“Even law enforcement officials who

‘reasonably but mistakenly conclude that probable cause is present’

are entitled to immunity.”) (quoting Anderson v. Creighton, 483 U.S.

635, 641 (1987)).

The warrant charged Mrs. White with commercial gam-

bling in violation of O.C.G.A. § 16-12-22. That statute provides that

a “person commits the offense of commercial gambling when he

intentionally . . . [o]perates or participates in the earnings of a gam-

bling place[.]” A gambling place is an establishment principally

used for “the playing of gambling devices.” O.C.G.A. § 16-12-20(3).

Gambling devices include:

(A) Any contrivance which for a consideration affords

the player an opportunity to obtain money or other

thing of value, the award of which is determined by

chance even though accompanied by some skill,

whether or not the prize is automatically paid by con-

trivance;

(B) Any slot machine or any simulation or variation

thereof;

(C) Any matchup or lineup game machine or device,

operated for any consideration, in which two or more

numerals, symbols, letters, or icons align in a winning

combination on one or more lines vertically, horizon-

tally, diagonally, or otherwise, without assistance by

the player. Use of skill stops shall not be considered

assistance by the player; or

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 17 of 34

24-13535 Opinion of the Court 17

(D) Any video game machine or device, operated for

any consideration, for the play of poker, blackjack,

any other card game, or keno or any simulation or

variation of any of the foregoing, including, but not

limited to, any game in which numerals, numbers, or

any pictures, representations, or symbols are used as

an equivalent or substitute for cards in the conduct of

such game.

§ 16-12-20(2). Although there were nine coin-operated amusement

machines at the Lucky Shamrock, the parties generally characterize

them as Class B video game machines, which are those that “al-

low[ ] a successful player to accrue points on the machine and carry

over points won on one play to a subsequent play or plays.” § 50-

27-70(b)(4).

The statutory scheme creates an exception for coin-operated

amusement machines: “Nothing in this part shall apply to a coin

operated game or device designed and manufactured only for bona

fide amusement purposes which involves some skill in its operation

if it rewards the player exclusively with[,]” essentially, noncash re-

wards. Id. § 16-12-35(d)(1). The law enforcement theory was that,

if rewarded with cash payouts, an otherwise excepted, licensed

coin-operated machine would become a gambling device by virtue

of the exception’s language requiring noncash rewards.

Nearly five years after the arrests in this case, the Georgia

Court of Appeals decided Barlett v. State, 829 S.E.2d 187, 188 (Ga.

Ct. App. 2019), and rejected the argument that the misuse of coin-

operated machines constitutes commercial gambling because the

“[e]xceptions to gambling law” provision of the statute, § 16-12-35,

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 18 of 34

18 Opinion of the Court 24-13535

provides for the exclusive penalties for cash payouts. Specifically,

the subsections following the section upon which the defendants

rely “plainly” state that the misuse of a coin-operated amusement

machine by paying cash for winning is a misdemeanor. See Barlett,

829 S.E.2d at 192. See also § 16-12-35(e)–(g).

Despite that this is now the law of Georgia, we cannot say

that the defendants’ reading of the statute in 2014 was unreasona-

ble. It is true that “[n]owhere in OCGA § 16-12-35 does the General

Assembly provide that a cash payout would convert an otherwise

legal [amusement machine] into an illegal ‘gambling device[,]’” but

the legislature’s use of the word “if” in subsection (d)(1) neverthe-

less could be construed to align with defendants’ reading. See Bart-

lett, 829 S.E.2d at 192–93 (emphasis added). Pre-Barlett, a reasonable

law enforcement officer could read § 16-12-35(d)(1) to provide an

exception to the definition of “gambling device” for “a coin oper-

ated game or device designed and manufactured only for bona fide

amusement purposes which involves some skill in its operation”

only “if it rewards the player exclusively with” free replays, store

merchandise, or store credit. See § 16-12-35(d)(1). That the Georgia

Court of Appeals declined to read the noncash rewards as a neces-

sary precondition to the application of the exception does not make

the defendants’ reading in 2014 unreasonable. See Wilson v. Layne,

526 U.S. 603, 617 (1999) (“[T]he officers in this case cannot have

been ‘expected to predict the future course of constitutional law.’”)

(citation omitted).

Nor does the statute expressly make the misdemeanor the

exclusive penalty for misuse of coin-operated amusement

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 19 of 34

24-13535 Opinion of the Court 19

machines. Thus, assuming without deciding that an officer who did

not apply for the warrant can be exposed to malicious prosecution

liability for his contribution to the theory of prosecution, qualified

immunity protects Special Agent Brower’s reasonable but mis-

taken read of § 16-12-35. As the district court noted, this conclusion

is bolstered by the swath of cases in Georgia courts allowing this

theory of liability to proceed against store operators.

In conclusion, there is simply no evidence that Special Agent

Brower made a reckless or intentional misstatement regarding Mrs.

White’s ownership. Moreover, Special Agent Brower’s incorrect

understanding of the law was reasonable. Accordingly, qualified

immunity shields Special Agent Brower.

B

Deputy Mims, the officer who applied for the warrants, chal-

lenges the district court’s arguable probable cause determination as

to each of the plaintiffs’ arrest warrants for which he was denied

qualified immunity. Specifically, the district court held that six war-

rants—supported by Deputy Mims’ sworn affidavits—were not

supported by arguable probable cause: (1) the July 6 arrest warrant

against Mr. Macri, (2) the July 6 arrest warrant against Mr. White,

(3) the July 6 warrant as to Zachary, (4) the July 11 warrant as to

Zachary, (5) the July 6 warrant as to Mrs. Macri, and (6) the July 6

warrant against Mrs. White. 3

3 The plaintiffs cross-appeal the grant of qualified immunity to Deputy Mims

as to (1) the July 11 arrest warrant against Mr. Macri and (2) the July 11 arrest

warrant against Mr. White. We choose to exercise pendent appellate jurisdic-

tion over the plaintiffs’ cross-appeal because we are already reviewing

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 20 of 34

20 Opinion of the Court 24-13535

1

Because Deputy Mims applied for these warrants, “we con-

sider only (1) the information that was before the magistrate, ei-

ther . . . in formal affidavits or otherwise, minus (2) any material

misstatements that [Deputy Mims] might have made, plus (3) any

material information that [he] omitted from [his] affidavits.” Butler,

85 F.4th at 1113 (citing Paez, 915 F.3d at 1287). Importantly, “prob-

able cause in a malicious-prosecution claim challenging an arrest

pursuant to a warrant can’t be shown by reference to information

in an officer’s investigative file or mind absent a record that he sub-

mitted the file to or explained his thought processes to the magis-

trate judge.” Id. (quoting Luke v. Gulley, 50 F.4th 90, 96 (11th Cir.

2022)) (alterations adopted and internal quotation marks omitted).

Deputy Mims argues this rule was not clearly established un-

til our decision in Williams. 965 F.3d at 1162. This argument is fore-

closed by our later cases’ interpretation and application of Williams.

To begin, in 1971, the Supreme Court stated in Whiteley v.

Warden, 401 U.S. 560, 565 n.8 (1971), that “[u]nder the cases of this

Court, an otherwise insufficient affidavit cannot be rehabilitated by

testimony concerning information possessed by the affiant when

he sought the warrant but not disclosed to the issuing magistrate.

A contrary rule would, of course, render the warrant requirements

of the Fourth Amendment meaningless.” (citation omitted).

qualified immunity as to another of the July 11 warrant. See Smith v. LePage,

834 F.3d 1285, 1292 (11th Cir. 2016).

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 21 of 34

24-13535 Opinion of the Court 21

Williams noted that some of our decisions seemingly

“look[ed] to ‘the facts and circumstances within the [arresting] of-

ficer’s knowledge’” when evaluating probable cause for a malicious

prosecution claim. See 965 F.3d at 1163 (first citing Wood, 323 F.3d

at 876, 878, 882; then citing Carter v. City of Melbourne, 731 F.3d 1161,

1166, 1170 (11th Cir. 2013); then citing Grider v. City of Auburn, 618

F.3d 1240, 1256 (11th Cir. 2010); then citing Blue v. Lopez, 901 F.3d

1352, 1359 (11th Cir. 2018); then citing Lowe v. Aldridge, 958 F.2d

1565, 1570 (11th Cir. 1992)). The question is whether a reasonable

officer in 2014 would be on fair notice that swearing to a deficient

warrant violates the Fourth Amendment or whether these inter-

vening decisions “injected uncertainty into the law” such that the

contours of the malicious prosecution claim were not sufficiently

clear. See Reichle v. Howards, 566 U.S. 658, 670 (2012).

Williams did not, and could not, overrule these cases indicat-

ing that we look to the officer’s knowledge. Instead, it reconciled

these decisions “by acknowledging a limited role for the arresting

officer’s knowledge in considering the constitutionality of warrant-

based seizures” which we discuss below. 965 F.3d at 1164. Other-

wise, it noted that the allegedly conflicting precedent applied the

proper rule or “their discussions of the applicable standard for prob-

able cause were dicta.” Id. Thus, we conclude that these cases, rec-

onciled by Williams, did not inject uncertainty into the contours of

the Fourth Amendment right. Indeed, Williams itself did not find

that this area of Fourth Amendment jurisprudence was sufficiently

muddied to grant qualified immunity on the second prong; it

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 22 of 34

22 Opinion of the Court 24-13535

denied qualified immunity to the officer who made false state-

ments in applying for a warrant in 2014. See id. at 1165.

Moreover, despite Williams’ correction of some imprecise

language, we have never held an officer may present woefully defi-

cient factual matter to the magistrate judge and rehabilitate his or

her affidavit later with facts when there is an overnight arrest pur-

suant to a warrant. Thus, we are unpersuaded that Williams an-

nounced a new previously unclear rule; it instead reaffirmed the

“broad statement of principle within [Whiteley] that clearly estab-

lishes a constitutional right.” Gilmore v. Ga. Dep’t of Corr., 144 F.4th

1246, 1258 (11th Cir. 2025) (en banc) (internal quotation marks and

citation omitted).

This conclusion is bolstered by our caselaw applying this

principle post-Williams to pre-Williams conduct. See Laskar, 972

F.3d at 1296 (denying qualified immunity based on Williams’ “clar-

ified” standard for conduct in 2010 in a 2020 decision); Butler, 85

F.4th at 1109 (denying qualified immunity based on this rule for

2017 conduct in a 2023 decision); Gervin v. Florence, 139 F.4th 1236,

1249 (11th Cir. 2025) (denying qualified immunity based on this

rule for conduct in 2012 and 2019 in a 2025 decision). See also Harris

v. Hixon, 102 F.4th 1120, 1134 (11th Cir. 2024) (explaining the clari-

fication in Williams and using its rule to grant qualified immunity

to an officer’s 2019 conduct). Indeed, to hold otherwise would con-

flict with our precedent in Luke, evaluating a pre-Williams 2017

warrant application. 50 F.4th at 96. The panel expressly stated that

it did “not consider in the calculus of probable cause that the detec-

tive relied on the investigative file and his intuition to identify [the

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 23 of 34

24-13535 Opinion of the Court 23

plaintiff] as a suspect because no record exists that he submitted the

file to or explained his thought processes to the magistrate judge.”

Id. at 96. The panel explained why this right was clearly established

in 2017:

Under longstanding Supreme Court precedent, an of-

ficer must provide particular information to support

an arrest warrant. See Whiteley, 401 U.S. at 564; Franks

v. Delaware, 438 U.S. 154, 165 (1978). Our precedents

agree—an officer who seeks an arrest warrant based

on a “conclusory affidavit” that “clearly is insufficient

to establish probable cause” is not entitled to qualified

immunity. Kelly v. Curtis, 21 F.3d 1544, 1555 (11th Cir.

1994) (quoting Garmon v. Lumpkin County, 878 F.2d

1406, 1408 (11th Cir. 1989)). Here, no “reasonably

competent officer” could have concluded that a war-

rant should issue based on the glaring deficiencies in

the affidavit. Malley v. Briggs, 475 U.S. 335, 341 (1986).

As a result, the unlawfulness of [the defendant-detec-

tive’s] conduct was clearly established when he acted

[in 2017] and he was not entitled to qualified immun-

ity.

Id. at 97 (internal citations modified). We thus reject Deputy Mims’

argument that we must consider the totality of the information

known to him because his conduct occurred before 2020.

2

Even if we disagree about the clearly established law, Dep-

uty Mims argues that we should consider the totality of the circum-

stances because there is an exception which “provides that if the

period of detention after arrest is brief, information known to the

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 24 of 34

24 Opinion of the Court 24-13535

officers but not communicated to the judicial officer may be con-

sidered to uphold the seizure.” Harris, 102 F.4th at 1134 (citing Wil-

liams, 965 F.3d at 1162–63). We have held that “a few hours” is a

brief period of detention. See id. See also Wood, 323 F.3d at 876 (ap-

plying the exception to a four-to-five-hour detention). Cf. Gerstein

v. Pugh, 420 U.S. 103, 113–14 (1975) (characterizing the time “to

take the administrative steps incident to arrest” as “a brief period

of detention”).

Each plaintiff spent at least one night in the Tift County Jail

on July 7, 2014, pursuant to the July 6 warrants. Mr. White was

detained for one day pursuant to the July 6 warrants because, on

July 8, 2014, the other arrest warrants issued for the drug posses-

sion charges. 4 Mrs. Macri, Zachary, and Mrs. White bonded out on

July 9, 2014, so their period of detention was two days. Mr. Macri

was detained for four days due to the July 6 warrants because, on

July 11, 2014, the July 11 warrants issued. Thus, the plaintiffs were

detained for anywhere between one night and four days pursuant

to the July 6 warrants. Those periods are not brief. See Harris, 102

F.4th at 1134. Therefore, Deputy Mims’ attempt to rehabilitate his

affidavit with information in his mind and his investigative files—

but not before the issuing magistrate—must fail. See Williams, 965

F.3d at 1162.

4 It is of no consequence whether we measure the time before Mr. White’s

presumably constitutionally-justified detention on July 8 or the time before he

paid his bond on July 17 because neither period is brief.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 25 of 34

24-13535 Opinion of the Court 25

3

With those matters resolved, we analyze the arguable prob-

able cause for each of the warrants. Probable cause exists if a rea-

sonable officer could conclude that there was a substantial chance

of criminal activity—and in a malicious prosecution case, a substan-

tial chance of the charged criminal activity. Turner v. Williams, 65

F.4th 564, 581 (11th Cir. 2023); Williams, 965 F.3d at 1159–62. See

also Wesby, 583 U.S. at 57. “The arguable-probable-cause standard

asks whether a reasonable officer in the same circumstances and

possessing the same knowledge as the [d]efendant could have be-

lieved that probable cause existed.” Butler, 85 F.4th at 1116 (quoting

Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004) (al-

terations adopted and internal quotation marks omitted). “While

an officer needn’t prove every element of the charged crime, her

knowledge that an element isn’t met—or is exceedingly unlikely to

be met—will preclude a finding of probable cause.” Butler, 85 F.4th

at 1116 (internal citations omitted).

i

The affidavit supporting Mr. Macri’s July 6 arrest states, in

full, as follows: “Jerry Macri did intentionally participate in the

earnings of a gambling place, to-wit: he is the co-owner of M&M

Amusement with Danny White and did collect his and Danny

White[’]s share of the profits for the Video Gambling Machines lo-

cated at 1001 West 2nd Street Tifton, Georgia.” D.E. 77-3 at 9.

Viewing this brief sworn statement through the officers’ mistaken

but not unreasonable understanding of the law, it lacks any facts

allowing a reasonable officer to conclude there was a substantial

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 26 of 34

26 Opinion of the Court 24-13535

chance of criminal activity. The alleged criminal activity turns on

the fact that Mr. Macri instructed the store owners to make cash

payouts, not that he or anyone else collected the share of profits

from the machines. Without any mention of the cash payments,

there is nothing to buttress the theory that the legal, licensed coin-

amusement machines fell outside of the exception in § 16-12-35.

The mere characterization of the coin-operated amusement

machines as video gambling machines also does not create a factual

basis for the alleged commercial gambling operation. Thus, we af-

firm the district court’s determination that this warrant was not

supported by probable cause or arguable probable cause and affirm

the denial of qualified immunity to Deputy Mims for Mr. Macri’s

malicious prosecution claim based on his July 6 arrest.

ii

The affidavit supporting Mr. White’s July 6 arrest is nearly

identical and reads: “Danny White did intentionally participate in

the earnings of a gambling place, to-wit: he is the co-owner of

M&M Amusement with Jerry Macri and did collect his and Jerry

Macri[’]s share of the profits for the Video Gambling Machines lo-

cated at 1001 West 2nd Street Tifton, Georgia.” D.E. 77-4 at 9. For

the same reasons set out above, the cash payouts are fundamental

to support probable cause or arguable probable cause under law

enforcement’s theory of the case. Accordingly, we affirm the dis-

trict court’s determination that this warrant was not supported by

probable cause or arguable probable cause and affirm the denial of

qualified immunity to Deputy Mims for this malicious prosecution

claim by Mr. White.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 27 of 34

24-13535 Opinion of the Court 27

iii

The same flaw exists as to Zachary’s July 6 arrest warrant. It

states: “Zachary Leon White intentionally participate[d] in the

earnings of a gambling place, to-wit: Zachary White is an employee

of M&M Amusement and Zachary did collect the profits for the

company from 1001 West 2nd street Tifton, Georgia.” D.E. 77-5 at

8. Again, there is a complete absence of any facts that would allow

any reasonable officer to conclude (or even mistakenly but reason-

ably conclude) that commercial gambling occurred because the

warrant is silent as to the cash payouts.

Moreover, this warrant affidavit lacks even the characteriza-

tion of the M&M machines as gambling machines and put only le-

gal conduct before the issuing magistrate. We affirm the district

court’s determination that this warrant was not supported by prob-

able cause or arguable probable cause and affirm the denial of qual-

ified immunity to Deputy Mims for this malicious prosecution

claim by Zachary.

iv

To obtain the July 11 warrant as to Zachary, Agent Mims

swore that “Zachary White did intentionally participate in the

earnings of a gambling place, to-wit: The cashier[s] at [five different

stores] paid [an undercover agent] [at least] $10.00 in cash for his

winnings from a Gambling Machine.” D.E. 77-5 at 2. The statement

continues: “The store owners had been advised by Jerry Macri that

it was ok to pay out cash and Jerry Macri, Danny White, and Zach

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 28 of 34

28 Opinion of the Court 24-13535

White were picking up the profits from said machines on a regular

bases [sic].” Id. 5

The district court held that this affidavit was insufficient to

establish probable cause or arguable probable cause because there

are no facts from which the knowledge of Mr. Macri telling the

store owners to pay cash could be imputed to Zachary. Recall that

while “an officer needn’t prove every element of the charged

crime, her knowledge that an element isn’t met—or is exceedingly

unlikely to be met—will preclude a finding of probable cause.” But-

ler, 85 F.4th at 1116 (internal citations omitted). “We have never

imposed ‘a rigid requirement that an arresting officer must have

specific evidence’ of suspects’ ‘subjective intent’ when their con-

duct ‘otherwise gives rise to probable cause to arrest.’” Davis v. City

of Apopka, 78 F.4th 1326, 1335 (11th Cir. 2023) (quoting Gates v. Kho-

khar, 884 F.3d 1290, 1300 (11th Cir. 2018)).

Putting aside the mistaken legal theory, there are not mate-

rial misstatements made by Deputy Mims. Although the plaintiffs

dispute the factual statement that the “store owners had been ad-

vised by Jerry Macri and Danny White that it was ok to pay out

cash[,]” D.E. 77-5 at 1, they do not present evidence showing why

Deputy Mims would have disbelieved the store owner who was

the informant or “should have known that his application failed to

establish probable cause.” Williams, 965 F.3d at 1165. Indeed, the

5 There are seven different warrants for five different establishments in which

M&M had machines; the only difference in the language of the warrant affida-

vits is that one affidavit adds that Mr. White, in addition to Mr. Macri, said “it

was ok to pay out cash.” D.E. 77-5 at 1.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 29 of 34

24-13535 Opinion of the Court 29

“[p]laintiffs do not dispute that the [July 11] warrant applications

accurately reflected information the Task Force had uncovered” as

of that date. See D.E. 107 at 44 (citing D.E.79-1 ¶¶ 93–94, 144–48;

D.E. 90-1 ¶ 146). Likewise, the plaintiffs do not point to any mate-

rial exculpatory information that Deputy Mims omitted from his

affidavits. Instead, it is undisputed that Zachary helped his father’s

business by collecting proceeds from the convenience stores on at

least twenty occasions during the course of the investigation. Col-

lecting the proceeds involved visiting the convenience stores, clear-

ing the data off the machines, retrieving the money from the store-

owner, and giving it to Mr. Macri or Mr. White.

We cannot say that a reasonable officer would have known

that drawing the inference that Zachary knew of the cash payouts

due to his relationship to M&M would negate the constitutional

validity of this warrant. The plaintiffs have not identified any evi-

dence indicating that Deputy Mims had affirmative knowledge that

the mens rea element was not met—that being, information that

Zachary did not know, or could not have known, of the alleged

scheme to tell store owners to make cash payouts. Such evidence

would negate probable cause, but it does not exist on the record

before us. Thus, we reverse the denial of qualified immunity to

Deputy Mims as to the July 11 warrant with respect to Zachary.

v

The affidavit supporting the warrant for Mrs. Macri’s July 6

arrest states, in full, as follows: “Rebecca Macri intentionally partic-

ipate[d] in the earnings of a gambling place, to-wit: On April 1st,

8th, 16th, 23rd, and 28th of 2014, Rebecca Macri deposited a check

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 30 of 34

30 Opinion of the Court 24-13535

from Ameris Bank account 2048654418 in the amount of $460.00

each (totaling $2,300.00). Account 2048654418 was identified as an

operating account in the name ‘M&M Amusement.’” D.E. 77-6.

We affirm the district court’s denial of qualified immunity

as to this warrant affidavit because Deputy Mims “should have

known that his application failed to establish probable cause.” Wil-

liams, 965 F.3d at 1165. Unlike Zachary’s July 11 warrant affidavit—

from which a reasonable officer could infer that driving around to

the convenience stores and interacting with the store owners who

were illegally paying out cash implicated the arrestee in the

scheme—here, the affidavit simply states that Mrs. Macri deposited

five checks from her husband’s business without indicating what

those checks were for.

Like some of the other warrants, the affidavit for the July 6

warrant as to Mrs. Macri is devoid of facts concerning the cash pay-

outs and, therefore, lacks a basis to conclude that commercial gam-

bling occurred. Much less is there a substantial chance that Mrs.

Macri intentionally participated in that commercial gambling be-

cause the affidavit does not factually support that anything illegal

occurred. Clearly, “an affidavit does not support probable cause if

it lacks any facts that suggest a crime occurred.” Williams, 965 F.3d

at 1167 (citing Garmon, 878 F.2d at 1410) (emphasis added). Depos-

iting five checks does not create probable cause for the crime of

commercial gambling. We affirm the district court’s denial of qual-

ified immunity on Mrs. Macri’s claim against Deputy Mims.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 31 of 34

24-13535 Opinion of the Court 31

vi

Next, we return to the Lucky Shamrock. Mrs. White’s July

6 warrant affidavit reads:

Alicia Lynn Lamb [n/k/a White] did intentionally

participate in the earnings of a gambling place, to wit:

On 01/15/2014 Alicia Lamb applied for a license for

the Lucky Shamrock and has operated the business

since that date. Lamb also opened a checking account

for the business. The Lucky Shamrock contains nu-

merous video gambling machines and makes cash

payouts.

D.E. 77-7. The district court denied qualified immunity to Deputy

Mims for the same reason as Special Agent Brower—that is, that

Mrs. White’s “ownership was a necessary predicate to arguable

probable cause.” D.E. 107 at 40. As we explained above, Special

Agent Brower did not act with intentional or reckless disregard for

the truth when he relied on the license application to establish the

date that Mrs. White took over the business. See Laskar, 972 F.3d at

1296.

Although it does not necessarily follow that Deputy Mims

had probable cause, the plaintiffs have not presented another rea-

son why Deputy Mims “should have known that his application

failed to establish probable cause.” Williams, 965 F.3d at 1165. Even

viewing the facts in the light most favorable to the plaintiffs, Dep-

uty Mims did not present falsehoods to the magistrate judge by re-

lying on Mrs. White’s own sworn statement that no other person

had an interest in operating the Lucky Shamrock as of January 15.

Further, interpreting O.C.G.A. § 16-12-35 to make the noncash

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 32 of 34

32 Opinion of the Court 24-13535

rewards a necessary condition for the exception to apply and de-

clining to interpret the misdemeanor penalties as the exclusive

punishment for cash payments is a reasonable though mistaken

read of the statutory scheme. Unlike the other deficient affidavits

for the July 6 warrants, this warrant affidavit plainly contains the

fact that Mrs. White’s establishment made cash payments as win-

nings for the amusement machines. For these reasons, we reverse

the district court’s denial of summary judgment to Deputy Mims

for Mrs. White’s malicious prosecution claim.

vii

The July 11 warrants for Mr. Macri and Mr. White are nearly

identical to the July 11 warrant for Zachary. Agent Mims swore

that Mr. Macri and Mr. White “did intentionally participate in the

earnings of a gambling place, to-wit: The cashier[s] at [five different

stores] paid [an undercover agent] [at least] $10.00 in cash for his

winnings from a Gambling Machine.” D.E. 77-3 at 1; D.E. 77-4 at

1. The statement continues that “[t]he store owners had been ad-

vised by Jerry Macri that it was ok to pay out cash and Jerry Macri,

Danny White, and Zach White were picking up the profits from

said machines on a regular bases [sic].” D.E. 77-3 at 1; D.E. 77-4 at

1. 6

6 For each man, Mr. White and Mr. Macri, there are eight different warrants

for five different establishments in which M&M Amusement had machines

and for several different dates of the alleged payments. Four of the sixteen af-

fidavits aver that Mr. White, in addition to Mr. Macri, said “it was ok to pay

out cash.” D.E. 77-3 at 7–8; D.E. 77-4 at 7–8.

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 33 of 34

24-13535 Opinion of the Court 33

Like Zachary’s strikingly similar July 11 warrant affidavits,

this affidavit establishes arguable probable cause because it offers

factual support for the theory that cash payments excluded the

coin-operated machines from the exception and that Mr. Macri and

Mr. White participated in the earnings from the plays paid out by

cash rewards. Because “probable cause requires only a probability

or substantial chance of criminal activity, not an actual showing of

such activity,” Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983), Deputy

Mims’ reliance on the informant and the nine different visits to

these establishments by undercover agents where those agents re-

ceived cash is sufficient to hold that the information before the

magistrate supported a probable cause finding.

Setting aside the mistaken legal theory, the plaintiffs have

not provided evidence to support any inculpatory material mis-

statements (or inferences of the same) by Deputy Mims based on

his investigation. Nor have they set forth any exculpatory material

information that he omitted from his affidavits. Thus, we affirm

the district court’s grant of qualified immunity as to the July 11 war-

rants.

IV

We affirm the district court’s grant of qualified immunity to

Deputy Mims for the July 11 warrant affidavits with respect to Mr.

Macri and Mr. White and affirm the denial of qualified immunity

to Deputy Mims for the July 6 warrant affidavits as to Mr. Macri,

Mr. White, Mrs. Macri, and Zachary. We reverse the district

court’s denial of qualified immunity to Deputy Mims for the July 6

warrant affidavit as to Mrs. White and the July 11 warrant affidavit

USCA11 Case: 24-13535 Document: 62-1 Date Filed: 12/19/2025 Page: 34 of 34

34 Opinion of the Court 24-13535

as to Zachary. We reverse the district court’s denial of qualified im-

munity to Special Agent Brower for the July 6 warrant affidavit as

to Mrs. White.

AFFIRMED in part, REVERSED in part, and

REMANDED.