Smiley

In the United States District Court

for the Southern District of Georgia

Brunswick Division

DAVID SMILEY,

Plaintiff,

v. CV 225-001

GLYNN COUNTY, GEORGIA, et al.,

Defendants.

ORDER

Before the Court is a motion to dismiss filed by Defendants

Glynn County, Georgia, Glynn County Police Department, and

police officers Kyle Gracia and Kenneth Miller, dkt. no. 18, as

well as a motion to dismiss filed by police officer Victor

Ramirez, dkt. no. 15. The motions have been fully briefed, dkt.

nos. 15, 18, 25, 26, 28, 29, 34, and the Court held a motions

hearing on August 11, 2025, dkt. no. 33. The motions are thus

ripe for review.

BACKGROUND

I. Factual Background

In the cold, early morning hours of December 5, 2023,

Plaintiff David Smiley was working as a cleaner outside the Cost

Kutter Grocery, located in a strip mall on Altama Avenue in

Brunswick, Georgia. Dkt. No. 1 ¶ 17; Dkt. No. 16-1 at 00:01-

00:21. Just before 12:30 a.m., two officers from the Glynn

County Police Department (“GCPD”) pulled up in the parking lot.

Id. ¶ 18. Except for a small RV, the parking lot appeared to be

empty. Dkt. No. 16-1 at 00:31-00:33.

Upon arriving at the scene, Defendants Gracia and Ramirez

exited their patrol car and approached Plaintiff, who was

standing in the well-lit covered walkway in front of the store

and making a sweeping motion toward the ceiling with a long

pole-type object. Dkt. No. 16-1 at 00:20-00:34. As the officers

approached Plaintiff, it became evident that Plaintiff was

actually holding a long-handled broom. Id. Gracia said

“Morning,” and Plaintiff lowered the broom. Id. at 00:34-00:39.

Gracia asked, “You cleaning?” Id. at 00:39–00:41. Plaintiff

responded, “Oh, yeah, yeah, yeah,” and explained that he worked

for his father’s company, which was contracted by the store to

clean the parking lot, the external walkway ceiling, and behind

the parking lot. Id. at 00:42–01:05. At this time, Plaintiff,

who was wearing a hooded sweatshirt, removed the hood from his

head. Id. The walkway ceiling Plaintiff had been cleaning

consisted of drop-down tiles. Id. The officers’ body camera

footage shows more than seventy ceiling tiles, one of which was

askew. Id. A longboard skateboard can be seen on the walkway

near Plaintiff. Id. Defendant Gracia asked if Plaintiff was

“getting spider webs” down, and Plaintiff answered

affirmatively. Id. Defendant Ramirez then asked, “What’s the

company y’all work for?” Id. at 01:05–01:11. Without hesitation,

Plaintiff responded, “D&B Sweepers.” Id.

Next, Defendant Ramirez asked Plaintiff, “Do you have your

license on you by any chance?” Id. at 01:13–01:14. Plaintiff

stated that he did not have it, so the officers asked for his

“basic information.” Id. at 01:14–01:16. In response, Plaintiff

asked, “For what, if you don’t mind me asking?” and Defendant

Ramirez replied, “It’s loitering and prowling” “because it’s

12:30 AM.” Id. at 01:19–01:32. Plaintiff stated, “I am pretty

sure no one called you.” Id. at 01:26–01:37. About this time,

the video shows someone—later identified as Plaintiff’s

girlfriend—get out of the small RV parked in the parking lot and

begin walking toward the group. Id. at 01:22-01:27. Then,

Plaintiff offered, “I’m working, just like you guys,” and

Defendant Ramirez responded, “Yeah, but businesses are closed.”

Id. Then, Defendant Ramirez said, “If you refuse to identify

yourself, you’ll be charged.” Id. at 01:38–01:40. Plaintiff

asked “For what? I have not done anything wrong. I am not

loitering and prowling. I am working and making an honest

dollar. I have not done anything wrong.” Id. at 01:42–01:48.

At that point, Plaintiff’s girlfriend had walked up to the

group. Id. Defendant Ramirez again asked Plaintiff if he would

identify himself, to which Plaintiff replied, “I have not done

anything wrong.” Id. at 01:48–01:52. The girlfriend stated that

she was with Plaintiff, and when the officers asked if she had

her ID with her, she said that she did not. Id. at 01:56–02:01.

She then proceeded to inquire about what was happening. Id.

Plaintiff said, “They want me to identify myself,” and Defendant

Ramirez again said, “Yeah, for loitering and prowling.” Id. at

02:05–02:11. Plaintiff again insisted that he was just working,

and Defendant Ramirez repeated, “But it is 12:30 AM and the

businesses are closed.” Id. at 02:12–02:20. Plaintiff then said,

“It doesn’t matter what time I decide to work.” Id. at 02:16–

02:19. At that point, Defendant Ramirez said, “Alright, you know

what, go ahead and put your hands behind your back” and

proceeded to handcuff Plaintiff. Id. at 02:20–02:26. Plaintiff

asked what he was being arrested for, and Defendant Ramirez

responded, “You are going to jail for loitering and prowling and

refusing to identify yourself.” Id. at 02:31–02:36. Plaintiff

again proclaimed that he was not loitering and prowling, to

which Defendant Ramirez responded, “Alright.” Id. Plaintiff said

“I am working. I am working. Just like you guys.” Id. at 02:43–

02:47. As Defendant Ramirez was escorting Plaintiff to his

patrol car, Plaintiff’s girlfriend asked the officers why they

could not call “the person who hired him to do this job,” and

she offered to make the call herself, but she did not say who

the person was. Id. at 02:47–02:52, 02:59–03:04. After Defendant

Ramirez walked off with Plaintiff, Defendant Gracia repeatedly

asked the girlfriend to identify herself. Id. at 03:00–06:37.

The girlfriend did not provide that information but continued to

insist that both she and Plaintiff had a right to be there. Id.

She also asked, “Did the shopping center call? . . . because

they know about it.” Id. at 03:09–03:13. Plaintiff’s girlfriend

continually insisted that both she and Plaintiff “ha[d]

permission to be [t]here,” but Defendant Gracia stated that they

were loitering and prowling by not identifying themselves. Id.

at 03:52–04:07. Plaintiff’s girlfriend said, “We aren’t

loitering because of the fact that he is hired here to do this

job.” Id. at 06:08–06:11. In response, Defendant Ramirez asked

her, “Where’s the contract [for the job]?” Id. at 06:11–06:18.

Plaintiff’s girlfriend asked, “You expect us to carry a contract

on us?” Id. at 06:18–06:20. Defendant Ramirez answered that he

was not “going to argue” with her and said she “could go to jail

with [Plaintiff].” Id. at 06:20–06:23.

Ultimately, Defendant Gracia placed the girlfriend under

arrest for not identifying herself and cuffed her. Id. at 06:38–

07:07. Once the girlfriend was in handcuffs, she offered to give

her information. Id. at 07:10–07:50. The girlfriend eventually

identified herself and provided the officers with her name,

address, and date of birth. Id. at 12:50–14:05. Defendant Gracia

verified her information and released her. Id. at 14:06–15:59.

After releasing Plaintiff’s girlfriend, Defendants Ramirez and

Gracia got into their patrol car to take Plaintiff to the

detention center. Id. at 16:15–17:17.

During the interaction with Plaintiff’s girlfriend,

Defendant Miller, another GCPD Officer, briefly appeared on the

scene. Dkt. No. 1 ¶ 32; Dkt. No. 16-2 at 10:25. Defendant Miller

stood with the other officers while they interacted with

Plaintiff’s girlfriend. Dkt. No. 16-2 at 10:56–16:00. Defendant

Miller did not interact with Plaintiff at all and was not

involved in the interaction other than asking Defendant Ramirez

if Plaintiff tried to “take off.” Id. at 13:33. Indeed, by the

time Defendant Miller arrived on the scene, Plaintiff had

already been secured in the patrol car for several minutes. Id.

at 03:51 (placing Plaintiff in patrol car); id. at 10:25

(Defendant Miller’s arrival).

Defendant Gracia drafted an “incident report or such other

document providing a narrative of the incident and arrest from

his perspective.” Dkt No. 1 ¶ 34. Defendant Ramirez supplemented

this report with the statement that “‘Lt. Davis had took a

second look at the report and advised we had no probable cause

for loitering and prowling. Lt. Davis told me to go and drop the

charge and take Mr. David Smiley where he needs to go.’” Id.

¶ 36. Upon arriving at the jail around “0500 hours to drop the

charge,” Defendant Ramirez was informed that Plaintiff had

“bonded out.” Dkt. No. 18-1 at 4. Defendant Ramirez returned to

headquarters to share this with Lieutenant Davis and noted “that

it will be a ‘No Warrant Received.’” Id. Plaintiff alleges that

though he was held at the detention facility for only a few

hours, his mug shot was posted online, which caused him

“unwarranted humiliation.” Id. ¶¶ 35, 39.

II. Procedural Background

Plaintiff filed suit on January 2, 2025 against Defendants

Glynn County, Georgia, GCPD, and Glynn County police officers

Kyle Gracia, Victor Ramirez, and Kenneth Miller in their

official and individual capacities. Dkt. No. 1. Plaintiff

asserts one count against all Defendants for unlawful search,

seizure, excessive force, and false arrest, in violation of the

Fourth Amendment pursuant to 42 U.S.C. § 1983 (Count 1), one

count against Defendant Miller for failure to intervene and

supervisory liability under § 1983 (Count 2), and one Monell

municipal liability count against Defendants Glynn County and

GCPD (unnumbered Count). Id. at 7, 10, 12. Plaintiff also

asserts state-law claims of assault and battery (Count 3) and

false imprisonment (Count 4) against Defendants Gracia and

Ramirez. Id. at 13. On March 14, 2025, Defendants filed motions

to dismiss. Dkt. Nos. 15, 18. Plaintiff responded to each, dkt.

nos. 25, 26, and Defendants replied, dkt. nos. 28, 29.

During the August 11, 2025 motions hearing, the parties

agreed that Plaintiff’s claims against Defendants Glynn County

and GCPD should be dismissed. Dkt. Nos. 25 at 5, 26 at 6. The

parties also agreed that Plaintiff’s official capacity claims

against Defendants Gracia, Miller, and Ramirez and Plaintiff’s

assault and/or battery and false imprisonment claims against

Defendant Gracia and Ramirez should be dismissed. Dkt. Nos. 25

at 5, 20, 26 at 6, 24. In light of the parties’ agreement,

those claims are hereby DISMISSED. Thus, the only claims that

remain pending at this juncture are Plaintiff’s Fourth Amendment

claims against Gracia, Ramirez and Miller, in their individual

capacities, and Plaintiff’s failure to intervene and supervisory

liability claim against Miller.

LEGAL AUTHORITY

Federal Rule of Civil Procedure 8(a)(2) requires that a

complaint contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” While this

pleading standard does not require “detailed factual

allegations,” “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action will not do.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To withstand a

motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A

complaint is plausible on its face when “the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id.

In deciding whether a complaint states a claim for relief,

the Court must accept the facts alleged in the complaint as true

and draw all reasonable inferences in favor of the plaintiff.

Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir.

2016). The Court should not accept allegations as true if they

merely recite the elements of the claim and declare that they

are met; legal conclusions are not entitled to a presumption of

truth. Iqbal, 556 U.S. at 678-79.

A complaint must “contain either direct or inferential

allegations respecting all the material elements necessary to

sustain a recovery under some viable legal theory.” Fin. Sec.

Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th

Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for

Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)). Ultimately,

if “the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has

alleged-but it has not ‘show[n]’—‘that the pleader is entitled

to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.

8(a)(2)).

While the factual allegations set forth in the complaint

are to be considered true at the motion to dismiss stage, the

same does not apply to legal conclusions set forth in the

complaint. Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1260

(11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

The Court need not “accept as true a legal conclusion couched as

a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan

v. Allain, 478 U.S. 265, 286 (1986)).

Lastly, “[u]nder the incorporation-by-reference doctrine, a

court may consider evidence attached to a motion to dismiss

without converting the motion into one for summary judgment if

(1) ‘the plaintiff refers to certain documents in the

complaint,’ (2) those documents are ‘central to the plaintiff’s

claim,’ and (3) the documents’ contents are undisputed.” Baker,

67 F.4th at 1276 (citations omitted). This doctrine has applied

to “various types of documentary evidence” including body camera

footage. Id. Here, the requirements are satisfied for the Court

to consider the officers’ video footage attached to Defendants’

motions to dismiss without converting the motion into one for

summary judgment. Dkt. No. 23-1. In this case, (1) Plaintiff

references the footage in his complaint, albeit briefly, (2) the

footage depicts the incident giving rise to Plaintiff’s claims,

and (3) neither party disputes the authenticity of the footage.

See Dkt. Nos. 1 ¶ 18, 16, 18-2. Furthermore, at the hearing, all

the parties agreed that the Court can properly consider the body

camera footage without converting the motion into one for

summary judgment. Dkt. No. 33.

When a court “consider[s] the bodycam footage at the

motion-to-dismiss stage,” the court “view[s] it in the light

most favorable to [the plaintiff].” Robinson v. City of

Huntsville, No. 21-13979, 2022 WL 3867584, at *3 (11th Cir. Aug.

30, 2022). Additionally, “[w]hen [a court] review[s] video

footage at the motion to dismiss stage, [it] ‘must construe all

ambiguities in the video footage in favor of the plaintiff.’”

Jackson v. City of Atlanta, Ga., 97 F.4th 1343, 1350 (11th Cir.

2024) (quoting Baker v. City of Madison, Ala., 67 F.4th 1268,

1277 (11th Cir. 2023)). “[W]here [the] video is clear and

obviously contradicts the plaintiff’s alleged facts, [the court]

accept[s] the video’s depiction instead of the complaint’s

account, and [the court] view[s] the facts in the light depicted

by the video.” Id.

DISCUSSION

Defendants’ motions to dismiss have two main bases:

qualified immunity and failure to state a claim for which relief

can be granted. The Court addresses each in turn.

I. Qualified Immunity

To resolve the motions to dismiss filed by Defendants

Ramirez and Gracia, the Court must determine whether, at this

stage, Defendants Ramirez and Gracia are protected by qualified

immunity for the claims against them in their individual

capacities.

“In order to establish qualified immunity, a defendant

first must show that she was acting within the scope of her

discretionary authority at the time of the alleged misconduct.”

Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019). Here, no

one disputes that Defendants were acting within the scope of

their discretionary authority during their interaction with

Plaintiff.

“Once a defendant has established that [he] was acting

within [his] discretionary authority, the burden shifts to the

plaintiff to show that qualified immunity is not appropriate.”

Id. The defendant officer is “entitled to qualified immunity

unless the plaintiff establishes that (1) [the defendant]

violated a federal statutory or constitutional right, and (2)

the unlawfulness of [the defendant’s] conduct was clearly

established at the time.” Id. (citation and quotation marks

omitted).

“Because § 1983 ‘requires proof of an affirmative causal

connection between the official’s acts or omissions and the

alleged constitutional deprivation,’ each defendant is entitled

to an independent qualified-immunity analysis as it relates to

his or her actions and omissions.” Alocer v. Mills, 906 F.3d

944, 951 (11th Cir. 2018) (quoting Zatler v. Wainwright, 802

F.2d 397, 401 (11th Cir. 1986) (per curiam) (citation omitted)).

The Court “must be careful to evaluate a given defendant’s

qualified-immunity claim, considering only the actions and

omissions in which that particular defendant engaged.” Id.

A. Constitutional Violation

1. Defendant Ramirez

Plaintiff asserts that he was arrested and transported to a

local detention facility where he was held for a few hours

before being released after a lieutenant determined no probable

cause existed for Plaintiff’s loitering and prowling charge. See

Dkt. No. 1 ¶¶ 26, 33–36. Plaintiff contends that Defendant

Ramirez committed a Fourth Amendment violation and that he is

not shielded by qualified immunity. Dkt. Nos. 25 at 6, 26 at 8.

Defendant Ramirez argues that dismissal is proper because there

is no underlying Fourth Amendment violation and that he is

entitled to qualified immunity. Dkt. Nos. 15 at 7–8, 15.

a. Time of Seizure

As a threshold matter, the Court must determine at what

point Plaintiff was detained or “seized.” Jackson v. Sauls, 206

F.3d 1156, 1166 (11th Cir. 2000). Not every interaction between

a private citizen and the police amounts to a Fourth Amendment

seizure. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); United

States v. Thompson, 712 F.2d 1356, 1359 (11th Cir. 1983). There

are three levels of police encounters “with varying levels of

Fourth Amendment scrutiny: (1) police-citizen exchanges

involving no coercion or detention; (2) brief seizures or

investigatory detentions [i.e., Terry stops]; and (3) full-scale

arrests.” United States v. Jordan, 635 F.3d 1181, 1185 (11th

Cir. 2011) (citation and quotations omitted). “Whether a seizure

has occurred depends on whether a reasonable person, in light of

the totality of the circumstances, would have believed that he

was not free to leave.” United States v. Brown, 700 F. App’x

976, 978 (11th Cir. 2017) (per curiam). As the United States

Supreme Court has recognized, the subjective intention of an

officer to detain a person had that person attempted to leave

“is irrelevant except insofar as that may have been conveyed to

the [person].” United States v. Mendenhall, 446 U.S. 544, 554

n.6 (1980). Likewise, the inquiry is not whether Plaintiff

believed he was free to leave but whether a reasonable person

would have such a belief under the same circumstances.

Defendant Ramirez asserts that the entire interaction with

Plaintiff could be considered a Tier Two stop, but, at the

latest, the encounter became a Tier Two stop the second time

Defendant Ramirez asked Plaintiff for identification. Dkt. No.

33. Plaintiff asserts that the encounter started at “Tier One”

but wrongly escalated to “Tier Two” when Ramirez requested

Plaintiff’s identification and threatened charges for loitering

and prowling. Dkt. No. 34 at 2.

“[A] seizure does not occur simply because a police officer

approaches an individual and asks a few questions.” Florida v.

Bostick, 501 U.S. 429, 434 (1991). If “a reasonable person would

feel free to disregard the police and go about his business, the

encounter is consensual and no reasonable suspicion is

required.” Id. (internal citation and quotations omitted).

Ramirez’s initial questions to Plaintiff about what he was doing

in the shopping center and who he worked for and Defendants’

first request for Plaintiff’s identification amount to a Tier

One interaction. During that time, Plaintiff was not restrained

or told he was not free to walk away. See, e.g., Dkt. No. 16-1

at 00:36–1:13; see also Bostick, 501 U.S. at 434 (“[L]aw

enforcement officers do not violate the Fourth Amendment by

merely approaching an individual on the street or in another

public place, by asking him if he is willing to answer some

questions, [or] by putting questions to him if the person is

willing to listen.” (citation and quotations omitted)). The body

camera footage also shows that Defendants were engaged in “non-

coercive questioning” with which Plaintiff “voluntar[ily]

coopera[ted].” United States v. Armstrong, 722 F.2d 681, 684

(11th Cir. 1984) (“The first tier of police-citizen encounters

involves no restraint of the liberty of the citizen involved,

but rather the voluntary cooperation of the citizen is elicited

through non-coercive questioning.”). At no point did the

officers demand that Plaintiff answer the questions, restrain

Plaintiff, or otherwise force Plaintiff to engage with them. The

voluntary nature of this encounter remains true even at

Defendant Ramirez’s first request for Plaintiff’s

identification. Dkt. No. 16-1 at 01:14–01:16 (asking Plaintiff,

“Do you have your license on you by any chance?”); see also

I.N.S. v. Delgado, 466 U.S. 210, 216 (1984) (“[I]nterrogation

relating to one’s identity or a request for identification by

the police does not, by itself, constitute a Fourth Amendment

seizure.”); Armstrong, 722 F.2d at 684 (concluding that an

interaction did not rise to the level of a seizure when an

officer “requested, but did not demand to see, the [plaintiff’s]

identification” and “notified [plaintiff] that he was free to

leave”). Moreover, Plaintiff’s complaint contains no factual

allegations to support an inference that Plaintiff did not feel

free to leave the premises upon Defendants’ initial approach and

preliminary questioning.

Plaintiff’s interaction with Defendants transitioned from a

Tier One encounter to a Tier Two Terry stop roughly one and one-

half minutes into the interaction when the “circumstances of the

encounter” became “so intimidating as to demonstrate that a

reasonable person would have believed he was not free to leave

if he had not responded.” Delgado, 466 U.S. at 216. At that

point, Plaintiff, who was by himself and facing two officers,

was informed “if you refuse to identify yourself then you’re

being charged.” Dkt. No. 16-1 at 01:38–01:41. Defendant

Ramirez’s threat to charge Plaintiff if he did not respond was a

“show of official authority such that a reasonable person would

have believed he was not free to leave.” Thompson, 712 F.2d at

1359 (quotation and citation omitted).

In sum, the Court concludes that Plaintiff was not “seized”

within the context of the Fourth Amendment until Defendant

Ramirez demanded Plaintiff identify himself and threatened to

charge him if he failed to do so. Therefore, the Court must

determine whether, at that point in time, Defendant Ramirez had

arguable reasonable suspicion to detain Plaintiff.

b. Arguable Reasonable Suspicion for Terry Stop

Officers can seize a suspect for an investigative stop, or

“Terry stop,” “where (1) the officers have a reasonable

suspicion that the suspect was involved in, or is about to be

involved in, criminal activity, and (2) the stop was reasonably

related in scope to the circumstances which justified the

interference in the first place.” Jordan, 635 F.3d at 1186

(citation and quotation omitted). “At the motion-to-dismiss

stage, to determine whether the officers had arguable reasonable

suspicion, [the Court] must take the allegations in the

complaint as true and analyze whether, under the facts as

alleged, a reasonable officer could have believed that the stop

comported with the Fourth Amendment.” Meshal v. Comm’r, Ga.

Dep’t of Pub. Safety, 117 F.4th 1273, 1287 (11th Cir. 2024)

(alterations adopted) (quotation and citation omitted). As for

the bodycam footage, the Court accepts its depictions and

construes all ambiguities in favor of Plaintiff. Jackson, 97

F.4th at 1350; Robinson, 2022 WL 3867584, at *3.

“Reasonable suspicion is a less demanding standard than

probable cause[,]” but “the Fourth Amendment requires at least a

minimal level of objective justification for making the stop.”

Illinois v. Wardlow, 528 U.S. 119, 124 (2000). In other words,

the suspicion “must be more than a mere hunch,” and the officer

must be able to “point to specific articulable facts that

reasonably warrant suspicion” at the time of the stop. United

States v. Ballard, 573 F.2d 913, 915 (5th Cir. 1978)

(alterations adopted) (citation and quotation omitted).1 “This

process allows officers to draw on their own experience and

specialized training to make inferences from and deductions

about the cumulative information available to them that might

1 Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc) (adopting as binding precedent all decisions of

the former Fifth Circuit handed down prior to close of business

well elude an untrained person.” United States v. Bautista-

Silva, 567 F.3d 1266, 1272 (11th Cir. 2009) (quotation and

citation omitted).

When an officer asserts the defense of qualified immunity,

“the issue is not whether reasonable suspicion existed in fact,

but whether the officer had ‘arguable’ reasonable suspicion to

support an investigatory stop.” Jackson, 206 F.3d at 1166. The

Court must “examine the totality of the circumstances to

determine whether an officer had a ‘particularized and

objective’ basis to support his suspicion.” Whittier v.

Kobayashi, 581 F.3d 1304, 1309 (11th Cir. 2009). Reasonable

suspicion can develop even when “observing exclusively legal

activity” that is “seemingly innocuous to the ordinary citizen.”

United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007)

(citation and quotations omitted); Bautista-Silva, 567 F.3d at

1272 (“We may not consider each fact only in isolation, and

reasonable suspicion may exist even if each fact alone is

susceptible of innocent explanation.” (citation and quotations

omitted)). An officer “who reasonably but mistakenly concludes

that reasonable suspicion is present is still entitled to

qualified immunity.” Jackson, 206 F.3d at 1165–66.

i. Loitering and Prowling

Plaintiff asserts that Defendant Ramirez unlawfully

detained him “without reasonable suspicion of criminal

activity.” Dkt. No. 1 ¶ 49. According to Defendant Ramirez, the

officers had arguable reasonable suspicion that Plaintiff was

loitering and prowling to justify the investigatory stop and

thus did not violate the Fourth Amendment. Dkt. No. 15 at 9.

The Georgia loitering and prowling statute provides that

“[a] person commits the offense of loitering or prowling when he

is in a place at a time or in a manner not usual for law-abiding

individuals under circumstances that warrant a justifiable and

reasonable alarm or immediate concern for the safety of persons

or property in the vicinity.” O.C.G.A. § 16-11-36(a).

“[T]he conduct sought to be prohibited is only that

loitering which creates a danger to persons or property.” Bell

v. State, 313 S.E.2d 678, 680 (Ga. 1984). Further, the statute

“requires at least some manifestation of aberrant behavior.”

Id. “‘[Section] 16-11-36 . . . does not require a suspect to

provide information, but, rather, guarantees him the opportunity

to explain his conduct, thereby possibly dispelling the

officer’s concern for the safety of persons or property before

any official action is allowed.’” Dunn v. City of Fort Valley,

464 F. Supp. 3d 1347, 1363-64 (M.D. Ga. 2020) (quoting Bell, 313

S.E.2d at 682).

Defendants contend that they had arguable reasonable

suspicion to detain Plaintiff because he was holding a stick-

like pole toward the ceiling of a Cost Kutter walkway at 12:30

in the morning and failed to identify himself. Put differently,

according to Defendants, “Plaintiff was in a place both at a

time (12:30 a.m.) and in a manner (waving a long pole in the

air) that was unusual for law abiding citizens and raised a

reasonable concern for safety of the property (disturbing the

exterior of a closed business).” Dkt. No. 15 at 11; see also

Dkt. No. 18 at 12–13 (“Given the late hour, the deserted

location, and the inconsistency of [Plaintiff’s] appearance and

actions with his proffered explanation for his presence, the

officers had reasonable suspicion that [Plaintiff] was

loitering.”).

Defendants’ explanation fails to consider the point in time

at which the Court looks to determine whether arguable

reasonable suspicion was present, that is, the point at which

Plaintiff was seized, not the point at which Defendants first

saw Plaintiff. See United States v. Franklin, 323 F.3d 1298,

1301 (11th Cir. 2003) (“[O]fficers can consider everything that

happened up to [the point of seizure] to establish reasonable

suspicion.”). Again, Plaintiff was seized when Defendant

Ramirez threatened to charge Plaintiff if he refused to identify

himself. Dkt. No. 16-1 at 01:38–01:41.

Whether the Time was Unusual for a Law-Abiding Individual

By the time Defendant Ramirez threatened to charge

Plaintiff, Defendants had seen that the “long stick” Plaintiff

was “waving” in the air was actually a long-handled broom, which

aligns with Plaintiff’s statement that he was cleaning. Indeed,

when Defendants approached Plaintiff, they asked “You cleaning?”

perhaps indicating that it was apparent Plaintiff was doing so.

Dkt. No. 16-1 at 00:40–00:42, 00:57–01:01. Likewise, Gracia

inquired if Plaintiff was sweeping spider webs from the ceiling

area to which Plaintiff gave an affirmative response. Dkt. No.

16-1 at 00:40–00:42, 00:57–01:01. Further, by the point of

seizure, Defendants had heard Plaintiff explain that he worked

for his father’s company, D&B Sweepers, which was reportedly

contracted by the shopping center to clean the covered walkway,

the parking lot, and behind the building. Id. at 00:45–00:51.

It is difficult to maintain that a person who looks like he

is cleaning a business and purports to be cleaning a business is

doing something unusual by cleaning the business when it is

closed. That is, Plaintiff is not “in a place at a time . . .

not usual for law-abiding individuals.” § 16-11-36(a). While

Defendant Ramirez points out that Plaintiff is outside a closed

business at 12:30 a.m., it is not unusual for employees of

companies who clean businesses to work at night when businesses

are closed. Accord In re J.B., 725 S.E.2d 810, 815 (Ga. Ct.

App. 2012) (stating that “it is hardly naïve (or unreasonable)

to think that” children/teenagers who are on break from school

would play in vacant lots, “even in areas known for drug or

gang-related activity”). A person of “ordinary intelligence”

would know that it is not unusual or unreasonable for a cleaning

business to be hired to clean the exterior of a building at

night. United States v. Flores-Uriostegui, No. 1:09cr438, 2010

WL 8675217, at *6 (N.D. Ga. Aug. 9, 2010) (“[T]he Georgia

loitering statute ‘passe[d] constitutional muster in advising

persons of ordinary intelligence of the conduct sought to be

prohibited[.]” (quoting Bell, 313 S.E.2d at 681)). Just like

street sweepers clean at night when there is little to no

traffic, common sense dictates that cleaning a walkway and

parking lot, which Plaintiff stated he was hired to do, is much

easier when these areas are not filled with patrons and

vehicles, that is, when stores are closed. Indeed, to conduct

such cleaning at night is preferable, because the cleaner will

not have to work around customers walking to and from and will

not risk debris falling on patrons. It is also not unusual for

retail stores to close as late as ten o’clock at night, which

means exterior cleaning is likely to occur even later at night.

Therefore, a reasonable officer on the scene would not have had

arguable reasonable suspicion that Plaintiff was in a place at a

time unusual for law-abiding individuals.

Whether Manner was Unusual for a Law-Abiding Individual

Next, the Court must determine, under the loitering and

prowling statute, whether Plaintiff was acting “in a manner not

usual for law-abiding individuals.” § 16-11-36(a). The word

“manner” implies a behavior or conduct. See Model Penal Code &

Commentaries § 250.6 (1980), at 391 (“Liability is based not on

a status . . . but on present conduct of an unusual sort.”

(emphasis added)). The bodycam video footage shows Plaintiff

actively sweeping the walkway ceiling with a long-handled broom

when Defendants arrived. As the officers approached Plaintiff,

he lowered the broom, he removed the hood from his head, and he

answered their questions calmly. Plaintiff said he was

cleaning. He was armed only with a broom, which he was using

for its intended purpose. He made no attempt to flee or

conceal. However, Plaintiff refused Defendants’ requests that

he identify himself.

In the bodycam footage, at the time of Plaintiff’s seizure,

Defendant Ramirez clearly emphasized that Plaintiff’s refusal to

identify himself would result in charges being brought against

him. Dkt. No. 16-1 at 01:38–01:40. Importantly, “although

police have the right to approach individuals and ask questions,

the individual has no obligation to respond and may decline to

answer and simply go on his or her way and the refusal to

respond alone d[oes] not provide a legitimate basis for an

investigative stop.” Brown, 2018 WL 2925919, at *11 (citing

Wardlow, 528 U.S. at 122-23). However, a person’s refusal to

cooperate can contribute to reasonable suspicion. Brown, 2018

WL 2925919, at *11. Therefore, the Court looks to the

surrounding circumstances to determine whether they, combined

with Plaintiff’s refusal to identify himself, create arguable

reasonable suspicion for the Terry stop.

Whether Circumstances that Warrant Alarm Existed

“‘[T]he words “under circumstances that warrant a

justifiable and reasonable alarm or immediate concern for the

safety of persons or property in the vicinity” mean those

circumstances where peace and order are threatened or where the

safety of persons or property is jeopardized.’” Dunn, 464 F.

Supp. 3d at 1363. A few nonexclusive and nonexhaustive

circumstances to consider in determining if “alarm is warranted”

are whether “the person takes flight upon the appearance of a

law enforcement officer, refuses to identify himself, or

manifestly endeavors to conceal himself or any object.” Id.

§ 16-11-36(b); In re R.F., 632 S.E.2d 452, 456 (Ga. Ct. App.

2006). “However, these guidelines do not require the officer to

make an arrest, even if one or more of the situations suggested

therein is present.” Bell, 313 S.E.2d at 681. Furthermore, an

officer must provide a “person an opportunity to dispel any

alarm or immediate concern which would otherwise be warranted by

requesting the person to identify himself and explain his

presence and conduct.” O.C.G.A. § 16-11-36(b).

To show alarm was warranted, Defendant Ramirez relies

heavily on Plaintiff’s refusal to identify himself. As

discussed supra, that, by itself, “d[oes] not provide a

legitimate basis for an investigative stop.” Brown, 2018 WL

2925919, at *11 (citing Florida v. Royer, 460 U.S. 491 (1983)).

Because Defendant Ramirez cannot point to any other aberrant

conduct on Plaintiff’s part, that is, Plaintiff did not attempt

to flee or conceal, Ramirez instead offers non-conduct to show

alarm was warranted. Specifically, Defendants state neither

Plaintiff’s clothing nor vehicle “bore any professional

insignia,” and Plaintiff had a skateboard but no other “cleaning

supplies or other work-related items.” Dkt. No. 18 at 12-13.

Finally, Defendants state “a ceiling tile was dislodged in the

area where [Plaintiff] had been poking the broom,” and they were

concerned “damage to such property might actively be occurring.”

Id. at 12 (emphasis in original).

Curiously, none of these concerns—the lack of insignia or

other cleaning supplies, the skateboard, the askew tile—were

mentioned in Defendants’ incident report. See Dkt. No. 18-1.

Additionally, Defendants never mentioned these concerns to

Plaintiff or asked him to explain them. O.C.G.A. § 16-11-36(b)

(requiring officers to give plaintiff an opportunity to dispel

their concerns before taking official action). Regardless, the

Court must evaluate the “totality of the circumstances” to

determine whether Defendants had a “‘particularized and

objective’ basis” for their suspicion. Whittier, 581 F.3d at

1309.

First, to require someone hired to clean a store’s outside

walkway and parking lot to display a business insignia on

clothing or a vehicle to ward off arguable reasonable suspicion

of loitering and prowling approaches the imposition of an

unreasonable level of sophistication of companies providing this

service. More importantly, Defendants do not explain how a lack

of insignia creates “immediate concern for the safety of persons

or property.” § 16-11-36(a). The lack of insignia, even

combined with Plaintiff’s refusal to identify himself, does not

amount to arguable reasonable suspicion in this case.

Relatedly, to the extent Defendants argue Plaintiff’s

manner of dress was concerning, that Plaintiff was wearing a

hooded jacket does not appear unusual or unreasonable for

December in Brunswick, Georgia. Indeed, in the bodycam footage,

Defendants themselves can be seen in long sleeves (possibly

jackets), and Plaintiff’s girlfriend can be seen wearing jeans

and a sweatshirt and folding her arms tightly, indicating she

was cold.

Next, Defendants take issue with Plaintiff having no

cleaning supplies other than a long-handled broom. Dkt. No. 18

at 12-13. But Defendants do not explain what other cleaning

supplies or equipment is necessary to clean the store’s outside

walkway and parking lot or why a lack of other cleaning supplies

contributes to their perception that Plaintiff threatened the

safety of persons or property. Dunn, 464 F. Supp. 3d at 1347

(“Defendants’ arguments don’t explain how [plaintiff] threatened

peace and order[.]”). It is therefore unclear why the lack of

other cleaning supplies supports an arguable reasonable

suspicion that Plaintiff was loitering and prowling. Further,

Plaintiff did have a broom with what appears to be a pole

extension attached to it, Plaintiff can be seen sweeping the

ceiling in the bodycam footage, and the bodycam footage also

shows a trash bin nearby. Dkt. No. 16-1 at 00:31.

Next, Defendants take issue with Plaintiff being in

possession of a skateboard. Dkt. No. 18 at 13. Again,

Defendants do not explain why Plaintiff having a skateboard

detracts from his story—that he was hired to clean the outside

of the building—or how the presence of a skateboard is a

circumstance that warrants “a justifiable and reasonable alarm

or immediate concern for the safety of persons or property in

the vicinity.” O.C.G.A. § 16-11-36(a); see also Dunn, 464 F.

Supp. 3d at 1365; Model Penal Code § 250.6, at 391 (“Liability

is based not on a status . . . but on present conduct of an

unusual sort.”).

Lastly, Defendants point to an askew ceiling tile “where

[Plaintiff] had been poking the broom,” arguing this caused

concern for property damage. Dkt. No. 18 at 12; see also

O.C.G.A. § 16-11-36(a) (loitering statute requires

“circumstances that warrant a justifiable and reasonable alarm

or immediate concern for the safety of persons or property in

the vicinity”). The single askew ceiling tile, along with

seventy-plus perfectly placed ceiling tiles, can be seen in the

bodycam footage.

Defendants’ argument leaves much to be desired. First,

Defendants’ contention that Plaintiff was “poking” the ceiling

with the broom is not supported by the bodycam footage, which

shows Plaintiff performing fast sweeping—not poking—motions

toward the walkway ceiling. Additionally, Defendants’

characterization that the askew ceiling tile was in the overhead

area Plaintiff had been sweeping is not clear from the bodycam

footage, which shows the subject tile could be several feet away

from the area Plaintiff was sweeping and outside Plaintiff’s

reach. Jackson, 97 F.4th at 1350 (“When [a court] review[s]

video footage at the motion to dismiss stage, [it] ‘must

construe all ambiguities in the video footage in favor of the

plaintiff.’”). In fact, the tiles immediately above Plaintiff,

where the bodycam footage clearly shows he was sweeping, are

undisturbed. And Defendants do not state they saw Plaintiff

dislodge the ceiling tile. Under these circumstances, it is

unreasonable to attribute to Plaintiff a single dislodged

ceiling tile, particularly when it is not uncommon for ceiling

tiles—especially exterior ones—to become dislodged. Based on

these facts, the Court cannot conclude, as a matter of law, that

Defendants had a justifiable and reasonable concern for the

safety of property in the vicinity. See O.C.G.A. § 16-11-36(a);

Bell, 313 S.E.2d at 680 (“[T]he conduct sought to be prohibited

is only that loitering which creates a danger to persons or

property” (emphasis added)).

The Court must evaluate the “totality of the circumstances”

to determine whether Defendants had a “‘particularized and

objective’ basis” for their suspicion. Whittier, 581 F.3d at

1309. Indeed, the Court’s reasonable suspicion calculus must

take into account all of the facts available to the officers,

including those that dispel the officers’ suspicions. United

States v. Cortez, 449 U.S. 411, 417 (1981). Thus, after viewing

the bodycam footage in the light most favorable to Plaintiff,

the Court simply cannot accept Defendant Ramirez’s argument that

a reasonable officer, in Defendants’ position, would believe

Plaintiff was loitering and prowling when Ramirez threatened to

arrest Plaintiff if he failed to identify himself.

Accordingly, Defendant Ramirez had no authority to escalate

the encounter from a first-tier encounter to a second-tier

encounter on that basis. State v. Copeland, 850 S.E.2d 736, 745

(Ga. 2020); see also Jordan, 635 F.3d at 1186 (noting that one

requirement of a Terry stop is that “officers have a reasonable

suspicion that the suspect was involved in, or is about to be

involved in, criminal activity”). “In fact, construing the

facts in a light most favorably to [Plaintiff], it appears that

[Defendant Ramirez was] clearly annoyed that [Plaintiff] did not

immediately produce his identification.” Dunn, 464 F. Supp. 3d

at 1365. Under Georgia law, “there is no legal requirement that

[Plaintiff] had to actually provide the information [Defendants]

requested.” Id. (citing Bell, 313 S.E.2d at 682).

Additionally, “Defendants fail to show that [Plaintiff]

jeopardized the peace and safety or that anyone was reasonably

alarmed (as opposed to merely annoyed) by his presence as is

required by the loitering statute.” Id. (denying qualified

immunity at motion to dismiss stage). Accordingly, Plaintiff

has alleged a constitutional violation on the part of Defendant

Ramirez unless Defendant Ramirez can show he had arguable

reasonable suspicion to believe Plaintiff was committing a

different offense. See Metz v. Dodson, No. 1:22-cv-303, 2023 WL

2974939, at *6 (M.D. Ala. Feb. 22, 2023) (If the officer “had

arguable reasonable suspicion to detain for any offense,

qualified immunity will apply.”).

ii. Other Crime—Trespass

Defendant Ramirez argues that even if he did not have

arguable reasonable suspicion to stop Plaintiff for loitering

and prowling, he had reason to suspect that Plaintiff was

engaged in other criminal activity like trespass. Dkt. No. 15 at

11. One way that an individual can be guilty of criminal

trespass in Georgia is if he “enters upon the land or premises

of another person . . . for an unlawful purpose.” O.C.G.A. § 16-

17-21(b)(1). Defendant Ramirez argues that Plaintiff’s presence

at a closed business at 12:30 a.m. while “waving a long pole”

gives rise to arguable reasonable suspicion to approach and

detain Plaintiff to investigate whether he was allowed to be

there. Dkt. No. 15 at 11. Again, this position assumes that the

relevant time that Defendants must possess arguable reasonable

suspicion to justify the detention was upon first approaching

Plaintiff. This is not so. As determined supra, Plaintiff was

not seized for Fourth Amendment purposes until Defendant Ramirez

threatened to arrest him if he did not identify himself. It was

at that point that Ramirez needed arguable reasonable suspicion

to detain Plaintiff.

By the time Plaintiff was seized, Plaintiff had explained

to Defendant Ramirez that Plaintiff was in the shopping center

because he was hired to clean it, and Plaintiff provided

Defendant with the name of his company and the areas of the

shopping center he was hired to clean. Thus, at the time of

seizure, Plaintiff had provided details about his lawful

presence on the premises. Notably, other than conclusory

statements, Defendants do not state they believed Plaintiff was

lying or provide an explanation as to why they did not believe

Plaintiff. See Dkt. No. 18 at 18 (arguing the “explanation for

[Plaintiff’s] presence . . . seems potentially inconsistent with

his appearance and actions”). Drawing all reasonable inferences

in favor of Plaintiff, a reasonable officer would not have

concluded he had arguable reasonable suspicion that Plaintiff

had “enter[ed] upon the land or premises of another

person . . . for an unlawful purpose.” O.C.G.A. § 16-17-

21(b)(1). Therefore, Defendant Ramirez did not have arguable

reasonable suspicion to detain Plaintiff pursuant to a Terry

stop and require that he identify himself. Plaintiff has

therefore alleged a constitutional violation by Defendant

Ramirez.

c. Arguable Probable Cause

Plaintiff next alleges that Defendant Ramirez arrested him

without probable cause. Dkt. No. 1 ¶ 49. Defendant Ramirez

argues there was at least arguable probable cause to arrest

Plaintiff for obstruction because Plaintiff repeatedly

disregarded Defendants’ commands to identify himself. Dkt. No.

15 at 13.

For qualified immunity to apply in the context of a false

arrest, “an officer need not have actual probable cause, but

only ‘arguable’ probable cause.” Brown v. City of Huntsville,

608 F.3d 724, 734 (11th Cir. 2010) (citation and quotations

omitted); see also Edger v. McCabe, 84 F.4th 1230, 1235–37 (11th

Cir. 2023); Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir.

2001); Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009).

This is necessarily an easier standard to meet than probable

cause. Jones v. Cannon, 174 F.3d 1271, 1283 n.3 (11th Cir. 1999)

(“Arguable probable cause, not the higher standard of actual

probable cause, governs the qualified immunity inquiry.”).

“An officer has arguable probable cause if ‘a reasonable

officer, looking at the entire legal landscape at the time of

the arrests, could have interpreted the law as permitting the

arrests.’” Garcia v. Casey, 75 F.4th 1176, 1186 (11th Cir. 2023)

(emphasis in original) (quoting District of Columbia v. Wesby,

583 U.S. 48, 68 (2018)). Accordingly, “[a]n officer lacks

arguable probable cause only if ‘the state of the law on the

date of the alleged misconduct makes it obvious that the

officer’s acts violated the plaintiff’s rights in the specific

set of circumstances at issue.’” Id. (alteration accepted)

(quoting Washington v. Howard, 25 F.4th 891, 902 (11th Cir.

2022)). In Garcia, the Eleventh Circuit explained:

We believe the doctrine of “arguable probable cause”

is a useful shorthand to collapse these three

inquiries into a single question in a wrongful

arrest case. That is, we must ask whether “a

reasonable officer, looking at the entire legal

landscape at the time of the arrests, could have

interpreted the law as permitting the arrests.”

Wesby, 583 U.S. at 68. So an officer may lack

arguable probable cause because an existing

precedent establishes that there was no actual

probable cause for an arrest on similar facts. Or an

officer may lack arguable probable cause because the

text of an applicable statute plainly precludes him

from making an arrest under that statute. Or the

officer may have been so lacking in evidence to

support probable cause that the arrest was obviously

unconstitutional. But the arguable probable cause

inquiry in a false arrest case is no different from

the clearly established law inquiry in any other

qualified immunity case. Unless the law “makes it

obvious that the [officer’s] acts violated the

plaintiff’s rights,” Washington, 25 F.4th at 903,

the officer has qualified immunity.

75 F.4th at 1187 (alteration in original); see also Poulakis v.

Rogers, 341 F. App’x 523, 526 (11th Cir. 2009) (“In other words,

[the Eleventh Circuit] ha[s] said that when an officer violates

the Constitution because he lacked probable cause to make an

arrest, the officer’s conduct may still be insulated under the

second prong of qualified immunity if he had ‘arguable probable

cause’ to make the arrest.” (citing Case, 555 F.3d at 1327)).

“The concept of arguable probable cause therefore allows

for the possibility that an officer might ‘reasonably but

mistakenly conclude that probable cause is present.’” Khokhar,

884 F.3d at 1298 (quoting Brown, 608 F.3d at 735). Moreover,

while “an officer ‘is not required to explore and eliminate

every theoretically plausible claim of innocence before making

an arrest,’ the officer ‘may not choose to ignore information

that has been offered to him or her . . . or elect not to obtain

easily discoverable facts.’” Jackson v. Cowan, No. 19-13181,

2022 WL 3973705, at *5 (11th Cir. Sept. 1, 2022) (alteration in

original) (citation omitted). “Although arguable probable cause

does not ‘require proving every element of a crime,’ qualified

immunity is not appropriate when a reasonable officer, based on

readily available information, would have known that the

plaintiff’s conduct did not satisfy an element of the offense.”

Id. at *6 (citations omitted).

“Whether an officer has probable cause or arguable probable

cause, or neither, ‘depends on the elements of the alleged crime

and the operative fact pattern.’” Khokhar, 884 F.3d at 1298

(quoting Brown, 608 F.3d at 735); see also Edger, 84 F.4th at

1237; Grider v. City of Auburn, 618 F.3d 1240, 1257 (11th Cir.

2010) (stating that whether an officer has arguable probable

cause depends on the “elements of the alleged crime and the

operative fact pattern” (citing Skop, 485 F.3d at 1137–38)). So,

the totality of the facts and circumstances known to Defendant

Ramirez, not one fact or circumstance alone, determines whether

he had probable cause or arguable probable cause to arrest

Plaintiff. Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“The

probable-cause standard is incapable of precise definition or

quantification into percentages because it deals with

probabilities and depends on the totality of the circumstances.”

(citations omitted)); United States v. Arvizu, 534 U.S. 266, 274

(2002) (rejecting a “divide-and-conquer analysis” which ignores

an officer’s observation that was “by itself readily susceptible

to an innocent explanation”).

Defendant Ramirez asserts that he had arguable probable

cause to arrest Plaintiff for obstruction under Georgia law.2

Dkt. No. 15 at 12–13 (arguing that because Defendant Ramirez

“had reasonable suspicion to stop Plaintiff, Plaintiff’s refusal

to identify himself gave Officer Ramirez probable cause to

arrest Plaintiff for obstruction”). In Georgia, an individual is

guilty of obstruction of officers if he “knowingly and willfully

obstructs or hinders any law enforcement officer . . . in the

lawful discharge of his or her official duties” or “knowingly

and willfully resists, obstructs, or opposes any law enforcement

officer . . . in the lawful discharge of his or her official

duties by offering or doing violence to the person of such

officer.” O.C.G.A. § 16-10-24(a)–(b) (emphasis added). “[T]he

standard for determining whether an officer was lawfully

discharging his duties such that a refusal to provide

identification would constitute obstruction is whether a

2 Notably, Defendant Ramirez does not argue he had arguable

probable cause to arrest Plaintiff for loitering and prowling.

See Dkt. No. 15 at 12. However, “[t]he existence of arguable

probable cause for any arrestable offense provides qualified

immunity.” Andrews v. Marshall, 845 F. App'x 849, 853 (11th

reasonable suspicion existed to stop the individual charged with

obstruction.” Gainor v. Douglas Cnty., Ga., 59 F. Supp. 2d 1259,

1282 (N.D. Ga. 1998).

With this in mind, Defendant Ramirez “lawfully

discharge[d]” his duties by arresting Plaintiff only if he had

arguable reasonable suspicion that Plaintiff was engaged in

criminal activity, like loitering and prowling or trespass, and,

as a result, Plaintiff’s failure to identify himself amounted to

obstruction. The Court holds that Defendant Ramirez did not have

arguable reasonable suspicion that Plaintiff was loitering and

prowling or criminally trespassing to justify seizing him and

demanding his identification. See supra. Accordingly, because

Defendant Ramirez did not have arguable reasonable suspicion

that Plaintiff was committing a crime, he did not have arguable

probable cause to arrest Plaintiff for failing to identify

himself when asked. Meshal, 117 F.4th at 1289 (citing United

States v. Clark, 32 F.4th 1080, 1087 n.1 (11th Cir. 2022)

(noting that reasonable suspicion is a “lower standard” than

probable cause so, necessarily, the failure to satisfy arguable

reasonable suspicion means the failure to show arguable probable

cause)).

2. Defendant Gracia

As a preliminary matter, Defendant Gracia argues that

Plaintiff’s Fourth Amendment claims against him must fail

because Defendant Gracia did not participate in the

investigative stop or the arrest. Dkt. No. 18 at 9. Although

Plaintiff’s complaint asserts that “Defendant(s) Gracia and/or

Ramirez” questioned him and arrested him, the video footage

attached to Defendants’ motions to dismiss shows that Defendant

Ramirez primarily handled the investigative stop, and Ramirez—

not Gracia—ultimately arrested Plaintiff. See generally Dkt.

Nos. 16-1, 18-2.

In Wilkerson, the Eleventh Circuit held that “a

participant in an arrest, even if not the arresting officer, may

be liable if he knew the arrest lacked any constitutional basis

and yet participated in some way.” Wilkerson v. Seymour, 736

F.3d 974, 980 (11th Cir. 2013). Though the Wilkerson court

applied that standard in the context of a failure to intervene

claim, id. at 979, it is nevertheless instructive to Plaintiff’s

Fourth Amendment claims against Defendant Gracia. The Wilkerson

court looked to Jones v. Cannon where the Eleventh Circuit

addressed whether an officer “was sufficiently involved in th[e]

initial warrantless arrest to be liable for false arrest.” 174

F.3d 1271, 1284 (11th Cir. 1999). The court concluded that there

was at least a question of fact about this because the officer

“took notes from which [the other officer] prepared the police

report about the arrest” and “more importantly, [both officers]

together transported [plaintiff] to the jail.” Id. So, too,

here. Defendant Gracia asked questions at the beginning of

Defendants’ interaction with Plaintiff, specifically inquiring

whether Plaintiff was cleaning and removing spider webs. Dkt.

No. 18-2 at 00:40–01:04. In fact, the first four questions the

officers asked when they approached Plaintiff came from

Defendant Gracia. Id. Furthermore, Defendant Gracia took out a

notepad and appeared to write on it while Defendant Ramirez

asked Plaintiff for his identification. Id. at 01:13–01:41. When

Defendant Ramirez ultimately cuffed Plaintiff, Defendant Gracia

stood right beside both Plaintiff and Ramirez and can be heard

on the camera footage telling Plaintiff’s girlfriend to “please

step back.” Id. at 02:23–02:30. Lastly, at the end of the

footage, both Defendant Gracia and Defendant Ramirez were in the

patrol vehicle that took Plaintiff to the jail. Dkt. No. 16-1 at

16:25-17:16. Thus, even though Defendant Gracia was not the

officer leading the investigation or the arrest, at this stage,

Plaintiff has plausibly alleged violations of his Fourth

Amendment rights against Defendant Gracia.

B. Clearly Established Law

To prevail against the assertion of qualified immunity,

Plaintiff must show—in addition to a constitutional violation—

that “when the defendant acted, the law established the contours

of a right so clearly that a reasonable official would have

understood his acts were unlawful.” Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). A right is

clearly established for purposes of the qualified immunity

defense when it is “sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015); see also

Lassiter v. Ala. A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1149

(11th Cir. 1994) (“Unless a government agent’s act is so

obviously wrong, in light of pre-existing law, that only a

plainly incompetent officer or one who has knowingly violated

the law would have done such a thing, the government actor has

immunity from suit.”).

A law is “clearly established” if (1) “a materially similar

case has already been decided, whose facts are similar enough to

give the police notice,” (2) “a broader, clearly established

principle should control the novel facts of his case,” such as a

statement of law in the Constitution, statutes, or case law, or

(3) plaintiff shows that “the officer’s conduct so obviously

violates [the] constitution that prior case law is unnecessary.”

Edger, 84 F.4th at 1235 (internal quotations and citation

omitted). Though the “specific context of the case” matters

here, the Court should “not require a case directly on point for

a right to be clearly established.” Id. Moreover, “[i]n

considering a defendant’s motion to dismiss or for judgment as a

matter of law based on qualified immunity, the district court

must examine the complaint to determine whether, under the most

favorable version of the facts alleged, defendant’s actions

violate clearly established law.” Nolen v. Jackson, 102 F.3d

1187, 1190 (11th Cir. 1997) (citation and quotations omitted).

Defendant Gracia argues that “[n]one of the courts that can

clearly establish the law for the purposes of this case has held

that an officer lacks arguable reasonable suspicion for a Terry

stop when he sees a lone person outside a closed store in an

empty shopping center late at night, notices that the person is

poking at and potentially damaging the building, and is given an

explanation for the person’s presence that seems potentially

inconsistent with his appearance and actions.” Dkt. No. 18 at

18. Defendant Gracia attempts to put Plaintiff in a position

where he must identify “a case directly on point for a right to

be clearly established.” Edger, 84 F.4th at 1235. The qualified

immunity analysis does not require this level of specificity;

neither does the Court. Id. Defendant Ramirez argues that “the

law is clear” that the offense of obstruction under Georgia law

occurs when an individual fails to identify himself during a

Terry stop and follow the commands of the officers. Dkt. No. 15

at 15. However, as the Court concludes supra, when viewing the

bodycam footage and drawing all reasonable inferences in favor

of Plaintiff, Plaintiff has sufficiently alleged that Defendants

lacked arguable probable cause to arrest him for obstruction, as

well as arguable reasonable suspicion to detain him for either

loitering and prowling or trespassing. Without a doubt, it was

clearly established at the time of Plaintiff’s arrest that any

arrest made without probable cause violates the Fourth

Amendment. Grider, 618 F.3d at 1258 (“And in the qualified

immunity context, it is well established that arrests without

probable cause violate the Fourth Amendment.”); Herren v.

Bowyer, 850 F.2d 1543, 1547 (11th Cir. 1988) (“The law is

‘clearly established’ that an arrest without a warrant or

probable cause to believe a crime has been committed violates

the fourth amendment.”). So, too, was it clearly established

that an investigatory stop must be supported by reasonable

articulable suspicion that the individual is committing a crime.

Reid v. Georgia, 448 U.S. 438, 440 (1980) (“While the Court has

recognized that in some circumstances a person may be detained

briefly, without probable cause to arrest him, any curtailment

of a person’s liberty by the police must be supported at least

by a reasonable and articulable suspicion that the person seized

is engaged in criminal activity.”); Terry, 392 U.S. at 21 (“[I]n

justifying the particular intrusion the police officer must be

able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion.”). As such, for purposes of Defendant

Ramirez and Gracia’s motions to dismiss, the Court holds that

Plaintiff has sufficiently alleged that Defendants violated

clearly established law and are not entitled to qualified

immunity at this time. Defendant Ramirez and Gracia’s motions

to dismiss are DENIED.

II. Failure to State a Claim

The Court next addresses the motion to dismiss filed by

Defendant Miller. Plaintiff argues he plausibly alleged that

Defendant Miller failed to intervene and prevent his false

arrest. Dkt. No. 26 at 19. Specifically, Plaintiff asserts that

Defendant Miller had notice or knowledge that Plaintiff was

unlawfully arrested and failed to stop it. Id. Defendant Miller

argues Plaintiff has failed to allege facts to state a claim

against him.

In the Eleventh Circuit, “‘[a]n officer who is present at

the scene and who fails to take reasonable steps to protect the

victim of another officer’s use of excessive force’ can be

liable for failing to intervene, so long as he ‘was in a

position to intervene yet failed to do so.’” Alston v.

Swarbrick, 954 F.3d 1312, 1321 (11th Cir. 2020) (citing Hadley

v. Guitierrez, 526 F.3d 1324, 1330 (11th Cir. 2008)). Relatedly,

if an officer participates in an arrest, even if not the

arresting officer, he “may be liable if he knew the arrest

lacked any constitutional basis and yet participated in some

way.” Wilkerson, 736 F.3d at 980.

Plaintiff alleges that Defendant Miller appeared on the

scene and observed and ratified the unlawful search and arrest

of Plaintiff. Dkt. No. 1 ¶ 58. However, the body camera footage

shows that Defendant Miller did not appear on the scene until

approximately ten minutes into Defendants Ramirez and Gracia’s

interaction with Plaintiff.3 Dkt. No. 16-2 at 10:28–10:50

(showing Defendant Miller’s patrol car arriving and Defendant

Miller exiting the vehicle to approach Ramirez, Gracia, and

Plaintiff’s girlfriend). At that point, Plaintiff had already

been arrested, searched, and placed and buckled into Ramirez and

Gracia’s patrol car for more than five minutes. Id. at 01:25

(showing Defendant Ramirez cuffing Plaintiff), id. at 01:56–

04:20 (showing Defendant Ramirez patting down Plaintiff, putting

Plaintiff in the patrol car, buckling him in, and closing the

door), id. at 10:28 (showing Defendant Miller first arriving).

Thus, even when accepting Plaintiff’s allegations as true and

drawing inferences in his favor, it would be unfounded to

conclude that Defendant Miller participated in the arrest or

“was in a position to intervene yet failed to do so.” Hadley,

526 F.3d at 1331. All the facts presented show that Defendant

Miller did not even arrive on the scene until after the

allegedly unconstitutional conduct had occurred.

3 The body camera footage directly captures Defendant Miller’s

car arriving and Defendant Miller exiting the vehicle about ten

and one-half minutes into the video feed. Dkt. No. 16-2 at

To be sure, Defendant Miller did play a minor role after

arriving on the scene. The body camera footage shows that while

Defendants Ramirez and Gracia were verifying Plaintiff’s

girlfriend’s identity, Defendant Miller asked Defendant Ramirez

or Gracia,4 “what happened?” and he is told “loitering and

prowling.” Dkt. No. 16-2 at 13:30–13:32. Defendant Miller then

asks the officers if Plaintiff “took off,” making a running

motion with his arms, and either Defendant Ramirez or Gracia

responded that Plaintiff “refuse[d] to identify himself.” Id. at

13:33–13:37. Defendant Miller then says “oh.” Id. at 13:37.

Still, asking two questions is not enough to constitute a

“failure to intervene” as the non-arresting officer for two

reasons.

First, the Eleventh Circuit has held that an officer did

not have the “requisite information to put him on notice that an

unlawful arrest was occurring or had occurred” in a situation

where an officer knew more than Defendant Miller did here.

Wilkerson, 736 F.3d at 980. Just like in this case, in

Wilkerson, the officer, Sergeant Parker, arrived on the scene

after the plaintiff had already been placed under arrest and put

into a transport car. Id. However, in Wilkerson, Sergeant Parker

spoke to the arresting officer “for only a few minutes” and then

spoke with the plaintiff-arrestee “for less than one minute.”

4 It is unclear in the footage which officer responds to

Id. Here, Defendant Miller spoke to the arresting officers for

only a few seconds, and Plaintiff does not allege, nor is it

reflected in the bodycam footage, that Defendant Miller spoke

with Plaintiff at all. Dkt. No. 16-2 at 13:30–13:37. Further,

like the plaintiff in Wilkerson, Plaintiff does not allege that

he “said something after the fact that placed [Defendant Miller]

on sufficient notice of the unconstitutionality of [his]

arrest.” Wilkerson, 736 F.3d at 980. Lastly, the Wilkerson court

stated that the non-arresting officer was “entitled to rely on

the account of the arrest provided by [the arresting officer]

and fill in any gaps in the account with reasonable inferences

premised on [the arresting officer] acting in a constitutional

manner and in good faith.” Id. Certainly, if the officer in

Wilkerson who spoke to the other officers for a few minutes and

talked to the plaintiff for a short amount of time did not have

sufficient information to be “on notice” of an unconstitutional

arrest, then Defendant Miller, who spoke to the other officers

for only seconds and did not speak with Plaintiff, also did not

have sufficient information to be “on notice.” Id.

In other cases where officers were found not liable for

failing to intervene, the officers were actually present on the

scene at the time of the arrest. See, e.g., Swarbrick, 954 F.3d

at 1321 (stating that the officer who allegedly failed to

intervene was at the scene, “freed [plaintiff’s] foot that was

stuck” in the car doorway, and helped restrain another

individual, but the plaintiff did not allege “what further steps

[the officer] should have taken or that he had the opportunity

to take further steps”); Hadley, 526 F.3d at 1331 (concluding

that an officer did not commit a constitutional violation when

he did not prevent another officer from punching plaintiff in

the stomach). As discussed thoroughly above, Defendant Miller

was not even on the scene at the time of Plaintiff’s arrest and,

thus, is even less culpable than the defendant officers in the

aforementioned cases.

In sum, even when accepting the facts alleged in the

complaint as true, the Court concludes that Plaintiff has not

sufficiently pled a claim against Defendant Miller. The video

footage and Plaintiff’s complaint are devoid of facts to show

Defendant Miller ratified the unlawful search and arrest, failed

to intervene, or even had a chance to intervene. Likewise,

Defendant Miller lacked sufficient information to be on “notice”

that Plaintiff’s constitutional rights were violated.5

Accordingly, Defendant Miller’s motion to dismiss the claims

against him is GRANTED.

5 In fact, even if Defendant Miller believed that Plaintiff’s

rights had been violated, Miller would have been too late to

prevent the harm from occurring. Defendants Ramirez and Gracia

had already arrested Plaintiff by the time Defendant Miller

arrived, so Defendant Miller was not “in a position to

intervene,” nor did he “participate” in the alleged harm.

Swarbrick, 954 F.3d at 1321 (citation omitted); Wilkerson, 736

CONCLUSION

Pursuant to the parties’ agreement, the following claims

are DISMISSED: Plaintiff’s claims against Defendants Glynn

County and Glynn County Police Department; Plaintiff’s official

capacity claims against Defendants Gracia, Ramirez and Miller;

and Plaintiff’s assault and/or battery and false imprisonment

claims against Defendant Gracia and Ramirez. Dkt. Nos. 15, 18.

The Clerk is DIRECTED to terminate Glynn County and Glynn County

Police Department as Defendants in this action.

Further, Defendant Miller’s motion to dismiss, dkt. no. 18,

is GRANTED. The Clerk is DIRECTED to terminate Miller as a

Defendant in this action.

Finally, Defendants Ramirez and Gracia’s motions to

dismiss, dkt. nos. 15, 18, are DENIED as to Plaintiff’s Fourth

Amendment claims against them in their individual capacities.

The stay of deadlines is hereby lifted, and the parties are

ORDERED to file their Rule 26(f) report within fourteen (14)

days of the date of this Order.

SO ORDERED, this 12th day of March, 2026.

HON. LISA GODBEY WOOD, JUDGE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA