Derrick Wynn v. City of Griffin, Georgia

USCA11 Case: 19-10479 Date Filed: 10/18/2021 Page: 1 of 26

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-10479

____________________

DERRICK WYNN,

Plaintiff-Appellant,

versus

CITY OF GRIFFIN, GEORGIA,

STEVEN D. HEATON,

in his official capacity as Chief of Police for the

Griffin Police Department of the City of Griffin, Georgia,

TINA BEAN,

WILLIAM SHAW,

Defendants-Appellees.

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2 Opinion of the Court 19-10479

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 3:16-cv-00094-TCB

____________________

Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

This is a malicious prosecution case, brought under 42

U.S.C. § 1983. Derick Wynn alleged that Officer Tina Bean lacked

probable cause to commence his prosecution for aggravated bat-

tery and therefore deprived him of his Fourth Amendment right to

be secure against unreasonable seizure. The District Court granted

Officer Bean’s motion for summary judgment, concluding that she

was entitled to qualified immunity from suit. Wynn appeals the

judgment. We affirm on the ground that the officer had probable

cause to commence the prosecution.

I.

A.

On September 25, 2014, at approximately 12:52 p.m., Officer

Tina Bean, a patrol officer with the City of Griffin Police Depart-

ment, responded to a disturbance call at the Department of Child

and Family Services. When she arrived, William Shaw – an individ-

ual known to have mental health issues and/or alcohol problems –

was visibly intoxicated and generally creating a fuss. After speaking

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19-10479 Opinion of the Court 3

with Shaw and obtaining his consent, Officer Bean requested that

EMS transport Shaw to Spalding Regional Medical Center so that

he could recover his faculties.

At the hospital, Shaw was involved in a physical altercation

with Derrick Wynn, a hospital security guard. The police were

called, and at approximately 3:27 p.m., Patrol Officer Dorsey was

dispatched to the scene. When Officer Dorsey learned that Shaw

was involved in the altercation, he informed Officer Bean, who vol-

untarily responded to the hospital. Upon Officer Bean’s arrival,

Shaw told her that Wynn had attacked him. According to Shaw,

Wynn entered his hospital room and threw him down on the bed,

using his forearm to pin Shaw down, effectively choking him.

Shaw added that his head was hanging off the edge of the bed while

Wynn held him down and that his shoulder was injured in the pro-

cess. Shaw claimed that the other security officer on duty, Lewis

Dawkins, had to pull Wynn off him and that he had done nothing

to provoke the attack.

During Officer Bean and Shaw’s conversation, Shaw was

“very animated, emotional, and combative.” As a result, Officer

Bean informed Shaw that she could not take his official statement

at that time. Bean told Shaw that he could, however, file a report if

he wished once he sobered up. Four days later, on September 29,

Shaw contacted the police and officially reported the incident.

Shaw met with Officer Bean and told her once more that Wynn

threw him down on the hospital bed, used his forearm to hold him

down, and injured his shoulder in the process. Shaw repeated his

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4 Opinion of the Court 19-10479

claim that Dawkins had been forced to pull Wynn off him and that

Wynn’s actions were unprovoked. Shaw also stated that he re-

turned to the hospital shortly after the incident and received treat-

ment for his shoulder.1

Approximately three weeks later, on October 22, Shaw

made a video-recorded statement regarding the altercation.

Shaw’s recollection of the incident remained the same, but he

added that his shoulder injury pre-dated the incident. According to

Shaw, Wynn had aggravated the prior injury, which stemmed from

a bicycle accident. He claimed that his shoulder had been healing,

but after the incident, it would need further treatment. Shaw also

provided medical records proving he sought medical attention the

day after the alleged assault, although he had not seen a doctor

since then.

Officer Bean and Sergeant Jimmy Hancock, her supervisor,

investigated the incident for over a month. 2 During this time, the

two spent many hours reviewing the hospital security camera foot-

age, speaking with witnesses, and discussing the case. Wynn, him-

self, never gave a statement, but Officer Bean did interview Daw-

kins, the other security guard. 3 Dawkins claimed that Shaw was

1 It appears that this appointment did not require an overnight stay.

2 We note that while Sergeant Hancock is an investigating officer, Officer Bean

is not, herself, an investigator. She asked to participate in the investigation for

learning purposes.

3It is disputed whether Wynn declined a request for an interview. Officer

Bean claims that she called Wynn on October 22 to request that he make a

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19-10479 Opinion of the Court 5

making threats and attempting to physically assault Wynn. Daw-

kins intervened to try to de-escalate the situation, but Shaw contin-

ued making threats and eventually “made contact” with Wynn. At

this point, Dawkins stated that Wynn “lifted [Shaw] and put him

on the bed to restrain him.” According to Dawkins, Wynn held

Shaw down for a couple seconds and then let him up.

The hospital security camera captured (without sound) the

incident. The District Court summarized what the camera footage

revealed as follows:

The video shows Shaw and Wynn in an increasingly

tense verbal exchange. Shaw was in Wynn’s face, ar-

guing with him. Shaw moved in close to Wynn, who

pushed him back towards the wall. Shaw advanced

towards Wynn again. At this point, the putative crime

occurred. Wynn abruptly grabbed Shaw, picked him

up, and threw him across the hospital bed. Wynn,

manifestly larger than Shaw, placed his body weight

on Shaw, whose head and partial shoulder were hang-

ing off the edge of the bed. Wynn stayed on top

statement, and that Wynn said he was unavailable. Wynn, on the other hand,

claims that Officer Bean never attempted to obtain his statement even though

he remained able and willing to be interviewed. According to Wynn, it was

not until he reached out to Officer Bean that she said he could come down to

the station and give a statement if he wished. In the end, Wynn did not make

a statement because by the time Officer Bean told him he could come down

to the station, Wynn had been advised not to go without a lawyer.

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6 Opinion of the Court 19-10479

of Shaw, his arm across his airway, for about thirty

seconds; just before releasing him, Wynn gave Shaw

a last little push against the bed. When he let Shaw

up, Shaw can be seen in later points of the video rub-

bing his right shoulder – the shoulder against which

Wynn placed his body weight to pin him to the hos-

pital bed.

Shaw’s initial statement at the hospital, his official statement

four days later, and his video-recorded interview largely match

what the camera footage depicted. The footage did not capture

Dawkins being forced to remove Wynn from Shaw.

Officer Bean reviewed the security camera footage with Ser-

geant Hancock and Lieutenant Richardson. Sergeant Hancock

then advised Officer Bean to take all the evidence to a magistrate,

explain the situation, and request a warrant for Wynn’s arrest. Fol-

lowing Sergeant Hancock’s direction, Officer Bean met with a

magistrate on October 28, 2014. The magistrate suggested she con-

sult an attorney in the Spalding County District Attorney’s Office.

Officer Bean then spoke with one of the Assistant District Attor-

neys, D. Lee, who advised her that there was probable cause to ob-

tain an arrest warrant for Wynn for aggravated battery. 4

Having conferred with Assistant District Attorney Lee, Of-

ficer Bean returned to the magistrate that same day and obtained

4 Under Georgia law, a person commits aggravated battery when he “mali-

ciously causes bodily harm to another…by seriously disfiguring his or her

body or a member thereof.” O.C.G.A. § 16-5-24(a) (2017).

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19-10479 Opinion of the Court 7

an arrest warrant for aggravated battery. The warrant affidavit

stated that Wynn committed the battery by “seriously disfiguring

a member of William Shaw [sic] body, to, wit, his Clavical [sic]’ and

that when Wynn threw Shaw on the hospital bed it resulted ‘in se-

rious injury to the collar bone (Clavical) [sic].”

On October 30, 2014, 5 after learning that a warrant had is-

sued for his arrest, Wynn turned himself in to the Spalding County

Jail. He spent approximately eighteen hours in jail before he ap-

peared before a magistrate for an initial appearance6 with retained

counsel. After informing Wynn of the aggravated battery charge

and his rights, the magistrate admitted Wynn to bail on the posting

of bond.

Several months later, Spalding District Attorney Scott Bal-

lard, acting through a second Assistant District Attorney, Kimberly

Schwartz, dismissed the aggravated battery charge against Wynn.7

The dismissal notice, dated March 24, 2015, describes the incident

as follows:

5 The record is inconsistent on the date Wynn turned himself in. In his depo-

sition, Wynn claimed to have turned himself in on October 30. Wynn’s Com-

plaint says he turned himself in on October 29. And Officer Bean’s case sum-

mary states that she was informed that Wynn turned himself in on October

31.

6 Ga. Unif. R Mag. Ct. 25.1.

7 The record is silent as to whether Assistant District Attorneys Lee and

Schwartz discussed the case or consulted the District Attorney prior to the

dismissal of the charge.

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8 Opinion of the Court 19-10479

Wynn…physically pushed Shaw onto the hospital

bed and held him there for a period of several sec-

onds, until it appears, Shaw calmed down and be-

came less combative, at which time Wynn released

Shaw. At no point d[id] Wynn strike Shaw and it ap-

pears that Wynn use[d] only that force necessary to

restrain Shaw temporarily.

The notice further emphasizes that Shaw had injured his

shoulder prior to the incident. The charge was dismissed because

the District Attorney believed it was “unlikely that a reasonable

jury would find, based on the evidence and beyond a reasonable

doubt” that Wynn acted with malice and seriously disfigured

Shaw, two elements of the crime of aggravated battery.

B.

On June 9, 2016, Wynn brought this action against Officer

Bean, in her individual capacity, Shaw, 8 the Chief of the City of

Griffin Police Department, Steven Heaton in his official capacity, 9

and the City of Griffin (collectively “the City”). His complaint

8 Shaw did not respond to Wynn’s complaint and was dropped from the case

following the District Court’s final disposition of the claims lodged against

him.

9 On the motion of the Chief of the Griffin Police Department, the District

Court concluded that claims against him in his official capacity and the claims

against the City were the same and therefore dismissed him from the case and

allowed claims against the City to proceed. Wynn does not challenge the

Court’s ruling in this appeal.

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19-10479 Opinion of the Court 9

contained six counts,10 some of which contained multiple discrete

claims. Two of the claims are before us in this appeal. 11 They were

10 Wynn’s complaint was a typical “shotgun” pleading in which all of the

claims were brought under 42 U.S.C. §§ 1983 and 1988 for violations of the

Fourth and Fourteenth Amendments of the United States Constitution and

under Articles 1, § 1, I, II, XIII and XVII of the Georgia Constitution. Count

One mingled all of the claims together---basing them on all of the factual alle-

gations of the complaint---and alleged that all “Defendants . . . acted under

color of state laws to deprive Plaintiff of rights, privileges, and immunities se-

cured by the” federal and state constitutions. Count Two alleged that Officer

Bean falsely arrested Wynn and that “Defendants maliciously prosecuted

Plaintiff for the criminal offense of aggravated battery.” Count Three alleged

the City and Office Bean breached “their legal duty to enforce the laws of the

State of Georgia in a reasonable and lawful manner” and that the City

breached “their legal and public duty to properly supervise, train, and control

Bean . . .” Count Five alleged that the “Defendants intentionally and recklessly

initiated and pursued a criminal prosecution of Plaintiff.” Count Six alleged

that “Defendants’ tortious conduct caused Plaintiff to lose his position as a se-

curity guard at the Hospital and interfered with Plaintiff’s employment.”

Rather than move the District Court to dismiss the complaint pursu-

ant to Fed. R. Civ. P. 12(b)(6) or for a more definite statement pursuant to Fed.

R. Civ. P. 12(e), Officer Bean and the City jointly answered the complaint. In

addition to responding to each of the eighty-five numbered paragraphs of the

complaint, their answer asserted seventeen affirmative defenses. Each affirm-

ative defense consisted of one sentence and applied indiscriminately to all

counts of the complaint and the discrete claims the counts purported to allege.

Of note were the “First” and “Sixth” defenses. The first alleged: “The Com-

plaint fails to state a claim upon which relief may be granted and therefore

must be dismissed.” The Sixth alleged: “Plaintiff’s claims . . . are barred, be-

cause Plaintiff . . . failed to plead same with the specificity required to state a

cause of action.” Defendants never requested the District Court to rule on

these defenses by moving the Court pursuant to Rule 12(c) to grant them judg-

ment on the pleadings. Thus, these and the other affirmative defenses became

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10 Opinion of the Court 19-10479

brought against Office Bean and the City under 42 U.S.C. § 1983

for violations of Wynn’s Fourth Amendment right against unrea-

sonable seizure. 12

The first claim alleged that Officer Bean maliciously prose-

cuted Wynn for aggravated assault without probable cause. The

second claim was that Officer Bean initiated the malicious prosecu-

tion because the City failed to adequately train or supervise her in

the investigation of criminal allegations.

After Officer Bean and the City answered the complaint and

the parties engaged in discovery, Wynn served the City with the

nothing but dead letters. At the end of the day, the District Court lifted from

the complaint the claims involved here.

11As a preliminary matter, the District Court found that a § 1983 plaintiff may

not bring a false arrest claim when his arrest was made pursuant to a court

order. A claim for false arrest typically arises when a plaintiff is subjected to a

wrongful arrest without a warrant. A malicious prosecution claim, in contrast,

arises when a plaintiff claims false arrest pursuant to warrant. See Calero–Co-

lon v. Betancourt–Lebron, 68 F.3d 1, 4 (1st Cir. 1995) (holding adopted by the

Eleventh Circuit in Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996) ), ab-

rogated on other grounds by Wallace v. Kato, 549 U.S. 384, 389–90, 127 S. Ct.

1091, 1095–96 (2007)) (“As a general rule, an unlawful arrest pursuant to a

warrant will be more closely analogous to the common law tort of mali-

cious prosecution.... On the other hand, wrongful warrantless arrests typically

resemble the tort of false arrest.”). The District Court therefore properly dis-

missed Wynn’s claim for false arrest. Wynn does not dispute this decision on

appeal.

12The Fourth Amendment has been made applicable to the States under the

Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367

U.S. 643, 660, 81 S. Ct. 1684, 1694 (1961).

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19-10479 Opinion of the Court 11

report of his expert witness, Andrew J. Scott, III, regarding the pro-

fessional quality of Officer Bean’s actions. 13 The report focused on

the issue of whether Officer Bean had “probable cause to arrest

[Wynn], whether Wynn used excessive or justifiable force, and

whether Officer Bean conducted a legally adequate investigation.”

Scott opined that probable cause was lacking, the force Wynn used

was justifiable, and that Officer Bean’s investigation was inade-

quate. Officer Bean and the City moved separately to strike this

report and exclude Scott’s opinion testimony and for summary

judgment.

The District Court granted the motion to exclude Scott’s

opinions, finding that they were “either irrelevant under Daubert

or inadmissible as opinions on ultimate issues of law.” 14 The Court

then granted Officer Bean’s and the City’s motions for summary

judgment. The Court granted Officer Bean’s motion because she

did not violate Wynn’s Fourth Amendment right against unreason-

able seizure and therefore was entitled to qualified immunity.15

13 Scott was a former police chief who then served as the president of AJS Con-

sulting, LLC. AJS Consulting provided expert witness testimony relating to,

among other things, police procedures and practices, the use of lethal and non-

lethal force, and police hiring practices, recruitment, and retention issues.

14 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.

Ct. 2786, 2795 (1993).

15 The District Court concluded that Officer Bean did not violate Wynn’s

Fourth Amendment right because, although the Court found that she did not

have probable cause to secure an arrest warrant for aggravated battery, the

“facts known to her at the time supported at least arguable probable cause that

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12 Opinion of the Court 19-10479

The Court granted the City’s motion because without a constitu-

tional violation on Officer Bean’s part, there was no basis for a §

1983 claim against the City under Monell.16 Having dismissed all

of Wynn’s federal claims, the District Court declined to exercise

supplemental jurisdiction over his state law claims.

Wynn now appeals, arguing that the District Court erred be-

cause (1) Officer Bean was not entitled to qualified immunity, (2)

the City inadequately trained and supervised Officer Bean, and (3)

Scott’s opinions were relevant and admissible and, thus, should not

have been excluded. We conclude that Wynn failed to establish a

case of malicious prosecution under § 1983 because he fails to show

that the State lacked probable cause to charge him with aggravated

Wynn committed the lesser crime of simple battery.” The District Court relied

on our decision in Grider v. City of Auburn, 618 F.3d 1240, 1257 (11th Cir.

2010), and concluded that so long as probable cause existed to arrest Wynn for

any offense (here, simple battery), then his arrest and subsequent detention

was constitutionally valid. While this case was pending, we rejected this “any

crime” doctrine in the context of § 1983 malicious prosecution claims. See

Williams v. Aguirre, 965 F.3d 1147, 1162 (11th Cir. 2020) (concluding that the

any-crime rule does not apply to claims of malicious prosecution under the

Fourth Amendment).

16 Monell v. Dept. of Soc. Servs, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035 (1978)

(holding that a local government is a “person” subject to suit under § 1983 and

thus can be sued for constitutional deprivations resulting from government

custom or policy).

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19-10479 Opinion of the Court 13

battery. We therefore affirm the District Court’s decision granting

Officer Bean and the City summary judgment. 17

II.

We review denials of summary judgment based on qualified

immunity de novo, viewing the facts in the light most favorable to

the nonmovant. See Hunter v. City of Leeds, 941 F.3d 1265, 1271

n.8 (11th Cir. 2019). Additionally, we may affirm a district court’s

judgment on any ground that finds support in the record. Thomas

v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

III.

Wynn argues that Officer Bean violated his clearly estab-

lished Fourth Amendment right to be free from unreasonable sei-

zure via malicious prosecution.18 See Whiting, 85 F.3d 581 at 584.

To prevail on such a claim, Wynn must prove (1) the elements of

the common law tort of malicious prosecution and (2) a violation

of his Fourth amendment right to be free from unreasonable sei-

zures. Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). We

begin first with the malicious prosecution prong and conclude that

17Having found that Officer Bean and the City are entitled to summary judg-

ment, we decline to consider whether the District Court abused its discretion

in excluding Scott’s opinions.

18We note that even though Wynn turned himself in rather than be arrested,

his voluntary surrender still constitutes a seizure under the Fourth Amend-

ment. See Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 812 (1994)

(“[The defendant’s] surrender to the State’s show of authority constituted a

seizure for the purposes of the Fourth Amendment.”).

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14 Opinion of the Court 19-10479

Wynn failed to show that Officer Bean acted with malice and with-

out probable cause when she requested a warrant charging Wynn

with aggravated battery.

A.

The constituent elements of the common law tort of mali-

cious prosecution19 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.” Grider, 618 F.3d at

1256 (citing Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003)).

Although Wynn can establish elements one, three, and four, his

claim ultimately fails because he is unable to show that Officer

Bean acted with malice and without probable cause. We discuss

each element in turn, saving malice and probable cause for last.

Wynn must first show that a prosecution was instituted

against him by Officer Bean. Under Georgia law, “an inquiry be-

fore a committing court or a magistrate shall amount to a prosecu-

tion” for the purposes of malicious prosecution. See Sheffield v.

Futch, 839 S.E.2d 294, 299 (Ga. Ct. App. 2020). The prosecution

19 The elements of the malicious prosecution tort vary slightly across the

states. In Georgia, a plaintiff bringing a claim of malicious prosecution must

show “(1) prosecution for a criminal offense; (2) instigated without probable

cause; (3) with malice; (4) under a valid warrant, accusation, or summons; (5)

which has terminated favorably to the plaintiff; and (6) has caused damage to

the plaintiff.” Sheffield v. Futch, 839 S.E.2d 294, 301 (Ga. Ct. App. 2020) (citing

McKissick v. S. O. A., Inc., 684 S.E.2d 24 (2009)).

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19-10479 Opinion of the Court 15

need not result in an indictment or a jury trial; simply being ar-

rested and brought before a magistrate for an initial appearance and

admission to bail suffices. See Branson v. Donaldson, 426 S.E.2d

218, 221 (Ga. Ct. App. 1992) (noting that a proceeding in which the

plaintiff, after his arrest, was brought before a magistrate who set

bond constitutes an inquiry before a committing court or magis-

trate). Here, the record shows that Officer Bean requested a war-

rant for Wynn’s arrest for committing an aggravated battery.

Wynn, upon learning of the arrest warrant, turned himself in to the

Spalding County Jail and was held there for about eighteen hours

before being released on bail after an initial appearance. This is suf-

ficient to satisfy the first element of the malicious prosecution

claim.

Wynn can also show that the prosecution both culminated

in a favorable judgment and caused him damages. The aggravated

battery charge was dismissed nearly five months after Wynn’s re-

lease on bail because the District Attorney believed that it was “un-

likely that a reasonable jury would find, based on the evidence and

beyond a reasonable doubt,” that Wynn had committed the of-

fense. Although the dismissal does not, as we will explain shortly,

speak to the element of probable cause, it does constitute a judg-

ment in Wynn’s favor. See Laskar v. Hurd, 972 F.3d 1278, 1285

(11th Cir. 2020) (“We have also held that a prosecutor’s unilateral

dismissal of charges against a plaintiff constitutes a favorable termi-

nation.”) (citing Uboh v. Reno, 141 F.3d 1000, 1005-06 (11th Cir.

1998)). And the fact that Wynn spent eighteen hours in jail and

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16 Opinion of the Court 19-10479

then lived under the cloud of an aggravated battery charge for

nearly five months certainly satisfies the damages element. See

McDonough v. Smith, 139 S. Ct. 2149, 2160 (2019) (noting that the

injury caused by a classic malicious prosecution first occurs as soon

as the legal process is brought to bear on a defendant). It is the

allegedly unwarranted prosecution itself, after all, and the reputa-

tional damage and emotional distress that results from it, that con-

stitutes the harm giving rise to a malicious prosecution claim. See

Laskar, 972 F.3d at 1292 (“The mischief is done by the arrest and

disgrace caused by a charge of crime, and by the expense and an-

noyance attending the proceeding. A discharge without a trial does

not destroy the effect of the mischief…” (quoting Stanton v. Hart,

27 Mich. 539, 540 (Mich. 1873))). Thus, Wynn is able to satisfy the

third and fourth elements of the malicious prosecution claim.

Wynn’s claim meets a fatal stumbling block, however, on

the elements of malice and probable cause. To succeed on his ma-

licious prosecution claim, Wynn must show that Officer Bean in-

stituted the prosecution – i.e., secured the arrest warrant – with

malice and without probable cause. Malice may be inferred where

the defendant “makes a false statement to the police for achieving

some personal goal,” McKissick v. S.O.A. Inc., 684 S.E.2d 24, 29

(Ga. Ct. App. 2009), when a person acts out of “personal spite,” id.,

or when a person acts with a “reckless disregard for or conscious

indifference to the rights of the plaintiff.” Flaming v. U-Haul Co. of

Georgia, 541 S.E.2d 75, 78 (Ga. Ct. App. 2000). Malice can also be

inferred from a total lack of probable cause. Sheffield, 839 S.E.2d

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19-10479 Opinion of the Court 17

at 301. Indeed, “the absence of probable cause on the part of the

person instituting the prosecution” is often the “gravamen” of the

complaint because it allows the plaintiff bringing a malicious pros-

ecution claim to satisfy the “malice” requirement as well. See id.

Given Wynn has introduced no evidence suggesting that Of-

ficer Bean acted out of personal spite or to achieve a personal

goal,20 Wynn’s claim turns on whether Officer Bean had probable

cause to request the warrant for aggravated battery. In determin-

ing whether probable cause existed, the

question is, not whether plaintiff was guilty, but

whether defendant[] had reasonable cause to so be-

lieve – whether the circumstances were such as to cre-

ate in the mind of [the] defendant[] [–] a reasonable

belief that there was probable cause for the arrest and

prosecution. Probable cause is defined to be the exist-

ence of such facts and circumstances as would excite

the belief in a reasonable mind, that the person

charged was guilty of the crime for which he was ar-

rested and prosecuted.

20 Wynn never explicitly alleges that Officer Bean acted with malice. Wynn

makes only conclusory allegations – for example, that “Officer Bean certainly

knew that this case did not involve the statutory elements of aggravated bat-

tery” and that Officer Bean “wanted to investigate a serious felony case” and

so she submitted her request for a warrant knowing her affidavit was based on

false information – to imply malice on Officer Bean’s behalf. We dispose of

these allegations in our probable cause discussion.

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18 Opinion of the Court 19-10479

Gibbs v. Loomis, 576 S.E.2d 589, 592 (Ga. Ct. App. 2003)

(quoting Smith v. Trust Co. Bank, 450 S.E.2d 866, 869 (1994)); see

also Paez, 915 F.3d at 1285 (“Probable cause… is established ‘when

the facts and circumstances within the officer’s knowledge, of

which he or she has reasonably trustworthy information, would

cause a prudent person to believe, under the circumstances shown,

that the suspect has committed, is committing, or is about to com-

mit an offense.’” (quoting Durruthy v. Pastor, 351 F.3d 1080, 1088

(11th Cir. 2003)).

Here, the record shows that Officer Bean conducted a thor-

ough month-long investigation under the supervision of Sergeant

Hancock. During the investigation, she met with Shaw on three

different occasions: the day of the altercation, four days later when

Shaw officially reported the alleged assault, and on October 22

when Shaw made a video-recorded statement. Each time, Shaw

provided the same account of his encounter with Wynn and al-

leged that his shoulder had been injured when Wynn threw him

down and pinned him on the bed. Officer Bean interviewed Daw-

kins, the other security guard, and invited Wynn to give a state-

ment. She also obtained the hospital security footage of the inci-

dent and reviewed it alongside Sergeant Hancock.

Believing there was probable cause for an arrest, Sergeant

Hancock advised Officer Bean to take all the evidence to a magis-

trate, explain the facts, and request a warrant for Wynn’s arrest.

Officer Bean did just that. The magistrate, in turn, advised Officer

Bean to seek the advice of someone in the Spalding County District

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19-10479 Opinion of the Court 19

Attorney’s Office. Officer Bean promptly consulted with one of the

Assistant District Attorneys, Lee, and explained the facts of the

case. Assistant District Attorney Lee advised her that probable

cause existed for Wynn’s arrest for aggravated battery and only at

that point did she return to the magistrate to obtain a warrant for

Wynn’s arrest.

Although approval by a neutral magistrate is not dispositive

of the existence of probable cause, it is “the clearest indication” that

an officer acted in “objective good faith” and is therefore exceed-

ingly “pertinent” in assessing whether an officer could have “held

a reasonable belief that the warrant was supported by probable

cause.” See Messerschmidt v. Millender, 565 U.S. 535, 547, 555, 132

S. Ct. 1235, 1245, 1250 (2012). There is even more reason to be

confident that a reasonable officer could have believed that proba-

ble cause existed when the evidence supporting the warrant appli-

cation is reviewed by the officer’s superiors and a district attorney

and they all agree that the application should go forward. See id.

at 554, 132 S. Ct. at 1249. Although it is Officer Bean who finds

herself the target of Wynn’s suit,21 the record shows that Officer

Bean, Sergeant Hancock, Lieutenant Richardson, Assistant District

Attorney Lee, and the magistrate all believed there was probable

cause for aggravated battery. This strongly suggests that an officer

in Officer Bean’s shoes could have reasonably believed there was

21 This is so, of course, because the magistrate and the prosecutor(s) are enti-

tled to absolute immunity and Officer Bean represents the only possible target

of Wynn’s malicious prosecution claim.

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20 Opinion of the Court 19-10479

probable cause to bring such a charge. 22 The fact that none of the

officials who reviewed the facts of the case with Officer Bean ex-

pressed concern regarding probable cause or the lack thereof

“demonstrates that any error was not obvious.” See id. at 556, 132

S. Ct. at 1250.

It is true, of course, that a warrant application must be based

on a “truthful showing” of the facts to the neutral magistrate. See

Franks v. Delaware, 438 U.S. 154, 165-66, 98 S. Ct. 2674, 2681

(1978). We do not allow an officer to evade accountability for in-

tentional falsehoods or reckless misstatements. See Paez, 915 F.3d

at 1287. Wynn argues that Officer Bean obtained the arrest war-

rant against him by fabricating evidence for probable cause in her

arrest warrant application. He claims that Shaw did not suffer any

injury as a result of the altercation and that Officer Bean submitted

the warrant affidavit alleging serious disfigurement knowing that

Shaw’s injury was the result of the prior bicycle incident. In short,

Wynn claims that Officer Bean “wanted to investigate a serious fel-

ony case [and] so she submitted a warrant affidavit” knowing it was

unsupported by the facts.

22 The District Court apparently gave no weight to the fact that Officer Bean’s

supervisors, the assistant district attorney, and the neutral magistrate all be-

lieved there was probable cause for aggravated battery and instead found that

no officer could have reasonably concluded that the facts were sufficient to

support a warrant for aggravated battery. The implication of such a finding,

however, is that not only was Officer Bean unreasonable in concluding that

there was probable cause, but so too were her supervisors, the assistant district

attorney, and the neutral magistrate.

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19-10479 Opinion of the Court 21

Wynn, however, has introduced no evidence that Officer

Bean “intentionally or recklessly made misstatements or omissions

necessary to support the warrant.” Williams v. Aguirre, 965 F.3d

1147 at 1165 (11th Cir. 2020). Instead, Wynn simply points to the

fact that Officer Bean knew that Shaw had injured his shoulder pre-

viously and argues that Officer Bean could not have reasonably be-

lieved that Shaw suffered a “seriously disfiguring” injury to his clav-

icle or shoulder. Implicit in Wynn’s argument is that because Shaw

did not suffer a visible injury, Officer Bean had to be lying when

she stated in her affidavit that Wynn disfigured Shaw’s clavicle.

Under O.C.G.A. § 16-5-24(a), a “person commits the offense

of aggravated battery when he or she maliciously causes bodily

harm to another… by seriously disfiguring his or her body or a

member thereof.” Because the term “seriously disfiguring” is not

defined in the statute, Georgia courts have held that “[a]ggravated

battery predicated upon serious disfigurement, whether temporary

or permanent, requires proof that the injury inflicted was more

than a superficial wound, that is, a scrape, bruise, discoloration, or

swelling.” Byers v. State, 857 S.E.2d 447, 453 (Ga. 2021) (citing Year-

wood v. State, 678 S.E.2d 114, 116 (Ga. Ct. App. 2009)). While most

aggravated battery charges have involved visible injuries to the vic-

tims, injuries to internal organs of the victim, such as severe and

permanent damage to the victim’s liver and spleen, have been

found sufficient to sustain an aggravated battery conviction. See

Allen v. State, 543 S.E.2d 45, 50-51 (Ga. Ct. App. 2009). So too have

internal bone fractures resulting in no bruises, swelling, or other

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22 Opinion of the Court 19-10479

outward signs of damage. Weaver v. State, 830 S.E.2d 618, 624 (Ga.

Ct. App. 2019).

On multiple occasions, Shaw told Officer Bean that Wynn’s

actions caused injury to his shoulder. Shaw also told Officer Bean

that he had sought medical attention after the altercation and pro-

vided the medical records to this effect. Given these facts and given

her consultations with her supervisors and the assistant district at-

torney, Officer Bean could have reasonably believed that Wynn’s

conduct further aggravated Shaw’s pre-existing internal injury in

such a way as to constitute aggravated battery. The record is cer-

tainly devoid of any evidence that Officer Bean did not have a good

faith belief that her affidavit was truthful. See Franks, 438 U.S. at

165, 98 S. Ct. at 2681 (noting that a “truthful” affidavit does not

require that every fact necessarily be correct but instead that the

“information put forth is believed or appropriately accepted by the

affiant as true”).

Nor is there even one iota of evidence to suggest that Officer

Bean distorted the facts during either her conversations with the

magistrate or her consultation with the assistant district attorney.

In the absence of evidence indicating otherwise, we presume that

Officer Bean was acting in good faith and accomplishing her duties

in an appropriate manner. See United States v. Chemical Founda-

tion, 272 U.S. 1, 14-15, 47 S. Ct. 1, 6 (1926) (noting that the “pre-

sumption of regularity supports the official acts of public officers,

and, in the absence of clear evidence to the contrary, courts pre-

sume that they have properly discharged their official duties.”).

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19-10479 Opinion of the Court 23

Wynn further argues that when the District Attorney dis-

missed the felony charge, his analysis verified that there was no ar-

guable probable cause to prosecute any crime. Wynn points to our

decision in Uboh v. Reno as support for this proposition and sug-

gests that District Attorney Ballard’s decision not to pursue any

charge, even a simple battery charge, is “consistent with” a finding

of no probable cause. In Uboh, however, we did not decide

whether the officials in question had probable cause to bring

charges against the plaintiff. We found only that a prosecutor’s

unilateral decision to dismiss specific count of an indictment con-

stitutes a favorable termination for the purposes of a malicious

prosecution claim. Uboh v. Reno, 141 F.3d 1000, 1005-0 (11th Cir.

1998), abrogated on other grounds by Nieves v. Bartlett, 139 S. Ct.

1715, 1726 (2019). A favorable judgment, as we noted above, is

only one of the elements of a malicious prosecution claim. Proving

that the relevant officer lacked probable cause is an entirely sepa-

rate element. Indeed, a defendant may ultimately be found inno-

cent even where an officer had probable cause to secure a warrant

for his arrest.

A prosecutor may exercise his or her discretion not to pur-

sue a particular prosecution for any number of reasons, none of

which have to do with probable cause. Here, the District Attorney

dismissed the charge of aggravated battery because he believed it

was “unlikely that a reasonable jury would find, based on the evi-

dence, and beyond a reasonable doubt, that [the elements of aggra-

vated battery were] proven.” Expressing doubt as to the probable

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24 Opinion of the Court 19-10479

success of the State at trial is by no means synonymous with an

acknowledgement that the charging officer lacked probable cause

to bring the charge in the first place.

Even assuming arguendo that the District Attorney did not

believe, in March of 2015, that there was sufficient probable cause

to bring the charge of aggravated battery, this would have no bear-

ing on whether it was reasonable for Officer Bean to believe there

was probable cause when she sought the arrest warrant in October

of 2014. Officer Bean sought advice from District Attorney Lee and

was advised by him that there was sufficient probable cause to

bring a felony charge. The decision to dismiss the charge against

Wynn was made by District Attorney Ballard. 23 Undoubtedly, dif-

ferent district attorneys may reach different conclusions regarding

the existence of probable cause, but we do not require officers to

poll every district attorney to determine if there is a majority con-

sensus on the matter. Nor do we expect officers to second guess

the government attorneys from whom they seek advice. See Scar-

brough v. Myles, 245 F.3d 1299, 1202 n.8 (2001) (“Police officers are

not expected to be lawyers or prosecutors.”).

Thus, because we find that Officer Bean did in fact have

probable cause to request an arrest warrant for the charge of

23The decision was made by District Attorney Ballard through his assistant,

Assistant District Attorney Kimberly Schwartz. Although the record is silent

as to whether Schwartz discussed the case with Ballard, this does not affect

our analysis. Our point is that two different district attorneys considered the

facts at hand and reached different conclusions.

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19-10479 Opinion of the Court 25

aggravated battery against Wynn, Wynn’s common law malicious

prosecution claim must fail.

B.

“It is well established that an arrest without probable cause

is an unreasonable seizure that violates the Fourth Amendment.”

Grider, 618 F.3d at 1256. As such, the existence of probable cause

acts an absolute bar to a § 1983 malicious prosecution claim. Id.

Because Wynn fails to show that Officer Bean lacked probable

cause to secure an arrest warrant for aggravated battery, he also

cannot show that he was subject to an unreasonable seizure in vi-

olation of the Fourth Amendment.

IV.

Having concluded that Officer Bean is entitled to summary

judgment on Wynn’s malicious prosecution claim under § 1983,

we turn next to Wynn’s claim that the City inadequately trained

and supervised Officer Bean, thereby resulting in his malicious

prosecution. Because Officer Bean had probable cause to request

a warrant for aggravated battery, Officer Bean did not violate

Wynn’s constitutional rights. Wynn’s § 1983 claim against the City

therefore fails as well. See Monell, 436 U.S. at 658, 690, 98 S. Ct. at

2035-36 (indicating that the plaintiff’s injury must be constitutional

in nature for a municipality to be liable under § 1983).

VI.

For the foregoing reasons, we affirm the District Court’s

grants of summary judgment in favor of Officer Bean and the City.

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26 Opinion of the Court 19-10479

AFFIRMED.