Georgia Carry Org, Inc. v. Brian Kabler

Case: 14-11225 Date Filed: 08/29/2014 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-11225

Non-Argument Calendar

________________________

D.C. Docket No. 2:12-cv-00171-LGW-JEG

GEORGIA CARRY ORG., INC.,

MAHLON THEOBALD,

Plaintiffs - Appellants,

versus

BRIAN KABLER,

Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

________________________

(August 29, 2014)

Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:

Case: 14-11225 Date Filed: 08/29/2014 Page: 2 of 8

Mahlon Theobald and Georgia Carry Org., Inc. appeal the district court’s

denial of their motion for summary judgment and grant of summary judgment to

Brian Kabler. Appellants claimed Kabler, a deputy in the McIntosh County

Sheriff’s Office, violated Theobald’s constitutional rights by stopping him to

inquire whether he had a license to carry a firearm Kabler had previously observed

in Theobald’s possession. On the parties’ cross-motions for summary judgment,

the district court found that Kabler did not commit a constitutional violation and

that, even if a constitutional violation did occur, Kabler was entitled to qualified

immunity. Upon review, we conclude the district court did not err in determining

that Kabler was entitled to qualified immunity and affirm.

I. BACKGROUND

Shortly after midnight on August 3, 2012, Theobald entered a convenience

store in McIntosh County, Georgia through a side entrance while carrying a

handgun in a holster on his side. The firearm was covered by a suit jacket, but as

Theobald entered the store, a breeze blew the jacket open, revealing the firearm.

Theobald grabbed the jacket and closed it, again concealing the firearm. Kabler

and two other officers were in the convenience store at the time Theobald entered

and his actions in covering it. Kabler and the officers discussed the firearm and the

possibility of making contact with Theobald to determine whether he had a license

to carry it.

2

Case: 14-11225 Date Filed: 08/29/2014 Page: 3 of 8

Theobald conducted a transaction and left the convenience store in his

vehicle. Shortly thereafter, Kabler followed him and made a traffic stop. Kabler

asked to see Theobald’s driver license, and after Theobald complied, Kabler asked

whether Theobald had a weapon with him. Theobald asked whether he “had to

answer,” and when Kabler gave a generally affirmative response, Theobald told

him that he had a Florida concealed weapons permit. 1 Kabler asked to see the

permit, and Theobald again asked whether he was required to comply. Kabler

responded affirmatively, and Theobald gave him the permit.

Kabler contacted a dispatch officer to check Theobald’s driver’s license and

determined that it was valid. He also visually inspected Theobald’s weapons

permit and determined that it appeared also to be valid. Kabler then returned the

documents to Theobald and told him he was free to go. At this point, Theobald

asked Kabler for their location and for information concerning Kabler’s identity.

Kabler eventually gave Theobald the information. Kabler and Theobald briefly

discussed the nature of the stop, and Kabler informed Theobald that he could ask to

see Theobald’s permit any time he were to see him carrying a firearm. In total, the

stop lasted eight minutes and fifty seconds.

Based on these events, Appellants filed a complaint asserting, in pertinent

part, a claim under 42 U.S.C. § 1983 that Kabler violated Theobald’s constitutional

1

Theobald’s Florida concealed weapons permit was valid in Georgia.

3

Case: 14-11225 Date Filed: 08/29/2014 Page: 4 of 8

rights by subjecting him to an unreasonable seizure. Theobald sought damages

against Kabler individually, and both Appellants sought declaratory and injunctive

relief against Kabler in his official capacity. Ultimately, the district court granted

summary judgment in Kabler’s favor and dismissed Theobald’s claims.

II. STANDARD OF REVIEW

“We review the district court’s grant of summary judgment de novo,

applying the same legal standards as the district court, and construing the facts and

drawing all reasonable inferences therefrom in the light most favorable to the non-

moving party.” Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d

1146, 1149 (11th Cir. 2005).

III. DISCUSSION

A. Damages

The underlying question in this appeal is whether Kabler had reasonable

suspicion of criminal activity sufficient to overcome Theobald’s Fourth

Amendment right to be free from unreasonable seizures by government officials.

See United States v. Hunter, 291 F.3d 1302, 1305-06 (11th Cir. 2002) (citing Terry

v. Ohio, 392 U.S. 1, 30 (1968)). However, because Kabler was a government

official acting within his discretionary authority, we must view this question

through the lens of the qualified-immunity doctrine, which immunizes such a

government official from liability unless his conduct violates clearly-established

4

Case: 14-11225 Date Filed: 08/29/2014 Page: 5 of 8

federal law. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).

The question thus becomes whether a reasonable officer in Kabler’s shoes could

have had reasonable suspicion of criminal activity. Jackson v. Sauls, 206 F.3d

1156, 1166 (11th Cir. 2000); see also Anderson v. Creighton, 483 U.S. 635, 641

(1987) (observing that the question must be viewed objectively and that the

officer’s own subjective beliefs are irrelevant).

In support of a finding of arguable reasonable suspicion, Kabler points to

several factors, none of which are disputed. First, Kabler notes that the incident

occurred late at night at a convenience store, a combination of time and place for

which armed robberies are particularly problematic. Kabler also notes that

Theobald entered the store through a side entrance. Most importantly, Kabler

points to Theobald’s concealment of his firearm after his jacket opened and

revealed it, arguing that Theobald’s attempt to cover up his weapon in the vicinity

of the officers could indicate that his possession of the weapon was unlawful. 2

2

Theobald contends the district court made an improper inference in Kabler’s favor when

it stated that Theobald concealed his weapon after he saw the officers in the store, despite the

record giving no indication of when Theobald concealed his weapon in relation to when he

became aware of the officers. However, in making this statement, the district court was not

resolving when in fact the two events occurred; rather, the court was merely articulating how the

events might have appeared to an officer in Kabler’s position. Without knowing with certainty

whether Theobald had become aware of the officers before covering his weapon with his jacket,

a reasonable officer could have nevertheless inferred a possibility that Theobald had noticed the

officers prior to covering his weapon and had done so out of concern that the officers not observe

it.

5

Case: 14-11225 Date Filed: 08/29/2014 Page: 6 of 8

We conclude that a reasonable officer could have believed that the totality of

these circumstances was sufficient to establish a reasonable suspicion justifying the

ensuing traffic stop. See Hunter, 291 F.3d at 1306 (stating that courts “look at the

totality of the circumstances of each case” to determine whether reasonable

suspicion existed (internal quotation marks omitted)). Even though each factor is,

in isolation, susceptible to an innocent explanation, taken together they create at

least an arguably reasonable suspicion that Theobald was carrying his firearm

illegally. See id. (“[R]easonable suspicion may exist even if each fact alone is

susceptible to an innocent explanation.”). Understanding that the reasonable-

suspicion standard is elusive and “somewhat abstract,” United States v. Arvizu, 534

U.S. 266, 274 (2002), we cannot say that no reasonable officer in Kabler’s shoes

would have believed that reasonable suspicion existed under these circumstances.

B. Declaratory & Prospective Injunctive Relief 3

Appellants also sought declaratory and prospective injunctive relief

specifically relating to Kabler’s statement that he could require Theobald to show

Similarly, it is of no consequence what actually motivated Theobald to pull his jacket

over his weapon because the question is how his behavior would have appeared to a reasonable

officer under the circumstances.

3

The district court did not separately discuss these claims but dismissed them following

its order on the parties’ cross-motions for summary judgment. The district court’s lack of

discussion of these claims is of no moment, however, because we resolve them on the basis of

standing, an issue we consider de novo and may raise sua sponte. AT&T Mobility, LLC v.

NASCAR, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007).

6

Case: 14-11225 Date Filed: 08/29/2014 Page: 7 of 8

him his weapons permit any time he were to see Theobald carrying a weapon.

Theobald asked the district court to declare that requiring him to produce a

weapons permit in this way would violate his constitutional rights and to enjoin

Kabler from doing so. As Appellants point out, however, subsequently to the

events underlying this appeal, the Georgia Assembly passed a bill, effective July 1,

2014, that prohibits law-enforcement officers from detaining a person carrying a

weapon solely to determine whether the person is carrying a weapons permit. See

O.C.G.A. § 16-11-137(b). For this reason, Appellants cannot demonstrate the

“substantial likelihood that [they] will suffer injury in the future” necessary to

establish their standing to assert these claims. See Malowney v. Fed. Collection

Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999). Even if Kabler’s statements

made it likely he would require Theobald to produce a weapons permit solely

because he had seen Theobald with a firearm, there is no reason to believe this

likelihood persists after the enactment of § 16-11-137(b). Thus, we conclude those

claims must fail for lack of standing.

III. CONCLUSION

In light of the foregoing, we conclude that the district court did not err in

finding Kabler entitled to qualified immunity on Theobald’s § 1983 claim, and we

further conclude that Appellants lack standing to assert their claims for declaratory

judgment and prospective injunctive relief.

7

Case: 14-11225 Date Filed: 08/29/2014 Page: 8 of 8

AFFIRMED.

8