Lajuan Rayshard Kinnemore v. Thomas Cochran

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11360

Non-Argument Calendar

____________________

LAJUAN RAYSHARD KINNEMORE,

Plaintiff-Appellant,

versus

THOMAS COCHRAN,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:19-cv-00281-WMR

____________________

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2 Opinion of the Court 21-11360

Before WILLIAM PRYOR, Chief Judge, LUCK, and LAGOA, Circuit

Judges.

PER CURIAM:

Lajuan Kinnemore appeals the summary judgment against

his second amended complaint of malicious prosecution by

Thomas Cochran, a detective in the Sheriff’s Office of Paulding

County, Georgia. See 42 U.S.C. § 1983. The district court ruled that

Detective Cochran was entitled to qualified immunity. We affirm.

I. BACKGROUND

On November 23, 2017, the Dallas Police Department dis-

patched an officer to the Kinnemore home in Dallas, Georgia.

The officer observed Kinnemore’s wife, Amanda, “breathing

heavily and crying hysterically,” “bleeding from the bridge of her

nose,” and bearing “red marks on her arms, shoulders, and backs

of her shoulders.” Amanda described a “verbal altercation that

turned physical” with Kinnemore during which he threatened to

kill her while holding a loaded gun to her head, interrupted her

telephone call to 911, threw his cellular telephone at her, and

snatched their two-year-old daughter while warning that he

would make any police officer “kill him or vice versa.” Kinne-

more contacted 911, but after he broke his promise to appear at

the police station, officers obtained a warrant to arrest him for ag-

gravated assault, battery, and cruelty to a child. Kinnemore also

contacted his wife at the hospital while she was receiving

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21-11360 Opinion of the Court 3

treatment for a fractured nose and occidental bone and other inju-

ries. Later, Kinnemore released his daughter and surrendered to

the police.

On November 28, 2017, Amanda obtained a temporary

protective order against Kinnemore. See O.C.G.A. § 19-13-3. The

order “enjoined and restrained [Kinnemore] from doing, attempt-

ing to do, or threatening to do, any act of . . . harassing . . .

[Amanda] and/or the minor child[] in any manner” and from

“harassing . . . the family or household.” The order also barred

Kinnemore from “contact[ing] [Amanda] at any place . . . for the

purpose of harassing or intimidating [her].”

The same day, Kinnemore was released on bond. The

terms of his bond allowed him one visit to the family home ac-

companied by law enforcement to collect his belongings. Officers

served Kinnemore with the protective order as he left the jail.

On November 29, 2017, Kinnemore photographed the En-

try of Service on the protective order. He logged into his iCloud

account and uploaded the photograph to his account. He next

logged into the family iCloud account, shared the photograph

with his wife and daughter, and then removed himself from the

family account.

Amanda reported Kinnemore’s conduct to the Paulding

County Sheriff’s Office. When Detective Cochran interviewed

Amanda, she “appear[ed] to be very scared” and stated that she

was “in fear for her life.” Amanda showed the detective

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screenshots of her cellular telephone that showed the photograph

Kinnemore had sent and two notifications she had received that

Kinnemore had shared the photograph using the family iCloud

account and that he had left the account. Amanda also showed

the detective a screenshot showing the different appearance of the

family iCloud account while Kinnemore was a member and after

he removed himself from the account.

During her interview, Amanda reported more harassment

by Kinnemore and his family. She stated that, after Kinnemore

contacted her through iCloud, he made an unscheduled visit to

their home around 10 p.m. accompanied by officers of the Dallas

Police Department to collect his car and clothes. She also stated

that Kinnemore’s father, cousin, and brother later attempted to

send her messages through Facebook, but she blocked all conver-

sations with them. Amanda provided the detective screenshots of

the messages from Kinnemore’s family.

Based on Amanda’s interview, and after reviewing her hos-

pital records and information regarding Kinnemore’s arrest, De-

tective Cochran applied for a warrant to arrest Kinnemore for ag-

gravated stalking. See O.C.G.A. § 16-5-91(a). The application

stated that Kinnemore had “knowingly, willfully, without consent

and with the purpose of harassing and intimidating Amanda . . .,

contact[ed] [her] in violation of Family Violence Ex Parte Protec-

tive Order ordered by Judge Dean Bucci, Superior Court of Pauld-

ing County on November 28, 2017.” The detective alleged that

“Kinnemore did take a picture of the Sheriff’s Entry Of Service

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21-11360 Opinion of the Court 5

form for which [he] was served a Family Violence Ex Parte Pro-

tective Order on 11/28/2017 under Civil Action Number 17-CV-

2906-P3”; he “uploaded the picture to an Apple iCloud under his

account and then shared the picture on 11/29/2017 to . . .

Amanda Kinnemore’s iCloud family account so that she would re-

ceive a copy of the picture”; and he “then removed himself from

the family iCloud account.”

Detective Cochran obtained a warrant to arrest Kinne-

more, which deputy sheriffs executed. Later, the state moved to

revoke Kinnemore’s bond.

Judge Bucci held a preliminary hearing and modified Kin-

nemore’s bond. The judge found that probable cause existed to

arrest Kinnemore for aggravated stalking and, although his subse-

quent trip home did not violate his bond, “add[ing] conditions” to

“the bond [would] make [his wife] feel a little more secure.” The

new conditions “barred [Kinnemore] from entering Paulding

County, Georgia,” except to handle legal matters, and from hav-

ing any “contact, direct or indirect,” with his wife and daughter.

After the dismissal of his criminal warrant, Kinnemore filed

a second amended complaint that alleged a violation of “the

Fourth and Fourteenth Amendments for [the] illegal arrest of [his]

person and his malicious prosecution.” See 42 U.S.C. § 1983. Kin-

nemore alleged that Detective Cochran “secured a warrant . . . for

aggravated stalking . . . [that] falsely and deliberately or with a

reckless disregard for the accuracy of the affidavit omitt[ed]” the

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terms of Kinnemore’s bond that “allowed [him] to return to his

residence once with a police escort.”

Kinnemore moved for partial summary judgment, and De-

tective Cochran moved for summary judgment. The detective as-

serted the defense of qualified immunity. The detective argued

that he had probable cause, or at least arguable probable cause, to

arrest Kinnemore for aggravated stalking; that he acted without

malice; and that Kinnemore’s allegation regarding his bond was

“completely irrelevant to [the] warrant application” and did not

state a claim for relief under the Fourth Amendment.

The district court granted Detective Cochran’s motion for

summary judgment and denied Kinnemore’s motion for partial

summary judgment. The district court ruled that the detective

was immune from suit because “a reasonable officer in [his] posi-

tion could have determined that [Kinnemore] exhibited a pattern

of harassing behavior,” based on his wife’s report and their his-

tory, to provide at least arguable probable cause to arrest him for

aggravated stalking. The district court rejected Kinnemore’s argu-

ments that the offense of aggravated stalking required two or

more violations of the protective order and that the application

for his arrest warrant was deficient.

II. STANDARD OF REVIEW

“We review de novo whether . . . [law enforcement] offic-

ers are entitled to immunity.” Black v. Wigington, 811 F.3d 1259,

1265 (11th Cir. 2016). Because Detective Cochran raised qualified

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21-11360 Opinion of the Court 7

immunity in his motion for summary judgment, he “should pre-

vail if there is ‘no genuine dispute as to any material fact’ and [he

is] entitled to immunity ‘as a matter of law.’” Id. (quoting Federal

Rule of Civil Procedure 56(a)). We resolve any issues of material

fact in Kinnemore’s favor and then address the legal question

whether Detective Cochran is entitled to qualified immunity us-

ing that version of the facts. See Penley v. Eslinger, 605 F.3d 843,

848–49 (11th Cir. 2010).

III. DISCUSSION

Kinnemore contends that he was unreasonably seized in vi-

olation of the Fourth Amendment when he was maliciously pros-

ecuted by Detective Cochran. Kinnemore argues that the warrant

application is facially insufficient to establish probable cause for

aggravated stalking and that he is entitled to partial summary

judgment. Alternatively, Kinnemore argues that a jury could find

that he did not send the photograph to his wife.

Qualified immunity shields government officials who are

acting within their discretionary authority from liability when

their conduct does not violate a federal statutory or constitutional

right that was clearly established at the time of the challenged ac-

tion. Williams v. Aguirre, 965 F.3d 1147, 1156 (11th Cir. 2020). If

the official is acting within the scope of his discretionary authority

when he commits the allegedly unlawful actions, the plaintiff

must prove “that qualified immunity is not appropriate.” Penley,

605 F.3d at 849 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002)). “We are required to grant qualified immunity to a

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8 Opinion of the Court 21-11360

defendant official unless the plaintiff can demonstrate two things:

(1) that the facts, when construed in the plaintiff’s favor, show

that the official committed a constitutional violation and, if so, (2)

that the law, at the time of the official’s act, clearly established the

unconstitutionality of that conduct.” Singletary v. Vargas, 804

F.3d 1174, 1180 (11th Cir. 2015). Because Kinnemore does not

dispute that Detective Cochran was acting within his discretion-

ary authority when he applied for the arrest warrant, this appeal

turns on whether he is entitled to qualified immunity. See id.

For Kinnemore to defeat Detective Cochran’s claim of

qualified immunity, he “must prove that he suffered a seizure pur-

suant to legal process that violated the Fourth Amendment, and

satisfy the elements of the common law tort of malicious prosecu-

tion.” Luke v. Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020) (inter-

nal quotation marks and citations omitted). Because a claim of

“[m]alicious prosecution . . . requires a seizure pursuant to legal

process,” Aguirre, 965 F.3d at 1158, Kinnemore must “prove that

his arrest warrant was constitutionally infirm,” id. at 1165. To in-

validate his arrest warrant, Kinnemore must “establish[] either

that [Detective Cochran] should have known that his application

failed to establish probable cause or that [he] intentionally or reck-

lessly made misstatements or omissions necessary to support the

warrant.” See id. (internal citations omitted).

Detective Cochran’s warrant application established proba-

ble cause to arrest Kinnemore for aggravated assault. “Probable

cause . . . is established when the facts and circumstances . . .

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21-11360 Opinion of the Court 9

would cause a prudent person to believe, under the circumstances

shown, that the suspect has committed, is committing, or is about

to commit an offense.” Paez v. Mulvey, 915 F.3d 1276, 1285 (11th

Cir. 2019) (internal quotation marks omitted). In Georgia, a per-

son commits aggravated stalking when, “in violation of a . . . tem-

porary protective order, . . . [he] contacts another person . . . with-

out the consent of the other person for the purpose of harassing

and intimidating [that] person.” O.C.G.A. § 16-5-91(a). The appli-

cation established that the protective order prohibited Kinnemore

from contacting his wife and that he violated the order when he

sent his wife a photograph through their family iCloud account

without her consent. See id. § 16-5-90(a)(1) (defining “contact” as

“any communication including without being limited to commu-

nication . . . by computer network or by any other electronic de-

vice”); Jones v. State, 521 S.E.2d 883, 885 (Ga. Ct. App. 1999)

(“Contact, in [the] context [of aggravated stalking], means to get

in touch with or to communicate with.”). The application also es-

tablished that Kinnemore contacted his wife to harass her and to

intimidate her by communicating implicitly that their hostilities

would continue. That Kinnemore sent no message with the pho-

tograph does not matter because “[o]vert threats of bodily harm

are not required” for aggravated stalking. See Frilando v. State,

858 S.E.2d 525, 529 (Ga. Ct. App. 2021).

Kinnemore argues that the application failed to establish

that he contacted his wife as part of a pattern of behavior in-

tended to harass and intimidate her, but we disagree. Aggravated

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stalking occurs when contact in violation of a protective order oc-

curs as part of “a pattern of harassing and intimidating behavior”

against the victim “which serves no legitimate purpose.” See

O.C.G.A. § 16-5-90(a)(1) (defining “harassing and intimidating”);

State v. Cusack, 769 S.E.2d 370, 373 (Ga. 2015); Louisyr v. State,

706 S.E.2d 114, 118 (Ga. 2011). The pattern can emerge from “a

number of factors, including the prior history between the parties,

the defendant’s surreptitious conduct, as well as his overtly con-

frontational acts, and any attempts by the defendant to contact,

communicate with, or control the victim indirectly . . . .” Louisyr,

706 S.E.2d at 118. To determine “whether the facts set forth in an

affidavit constitute a sufficient basis for a finding of probable

cause,” “[w]e must . . . give due weight to inferences drawn from

. . . facts by resident judges . . . .” United States v. Lopez, 649 F.3d

1222, 1245 (11th Cir. 2011) (internal quotation marks omitted). A

prudent judge could deduce from the facts in the application that

Kinnemore sent the photograph as a successive act in a pattern of

harassing and intimidating behavior that had resulted in the issu-

ance of the protective order.

“[T]hat a neutral magistrate . . . issued [the] warrant” is not

dispositive of the existence of probable cause, but it is “the clear-

est indication that [Detective Cochran] acted . . . in objective good

faith” and “held a reasonable belief that the warrant [application]

was supported by probable cause.” Messerschmidt v. Millender,

565 U.S. 535, 547, 555 (2012). Both a magistrate judge and a judge

of the Superior Court of Paulding County found probable cause

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21-11360 Opinion of the Court 11

to arrest Kinnemore for aggravated assault. See United States v.

Leon, 468 U.S. 897, 914 (1984) (giving “great deference” to a

judge’s determination that an affidavit establishes probable cause).

Like those judges, Detective Cochran could have reasonably

thought that his warrant application provided probable cause to

arrest Kinnemore. See Aguirre, 965 F.3d at 1165.

Kinnemore argues that his arrest warrant was void under

the Fourth Amendment because Detective Cochran omitted from

his application that the “contact at the house consisted of [Kinne-

more] being escorted by a police officer.” But “even intentional or

reckless omissions will invalidate a warrant only if inclusion of the

omitted facts would have prevented a finding of probable cause.”

Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997). As De-

tective Cochran argued in his motion for summary judgment,

Kinnemore’s visit home after being served with the protective or-

der was irrelevant to the existence of probable cause for the crimi-

nal warrant. That charge of aggravated stalking was predicated on

Kinnemore’s contact with his wife in violation of a court order to

harass and intimidate her. Because the omission of facts regarding

Kinnemore’s visit was “insignificant and immaterial, . . . [that

omission does] not invalidate [Kinnemore’s arrest] warrant.” See

id. at 1327.

The district court did not err by entering summary judg-

ment in favor of Detective Cochran. The detective’s warrant ap-

plication established probable cause to arrest Kinnemore for

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12 Opinion of the Court 21-11360

aggravated stalking. See Wigington, 811 F.3d at 1267. Detective

Cochran was entitled to qualified immunity.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Detective

Cochran.