The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12231
Non-Argument Calendar
____________________
THOMAS BRUCE HENLEY,
Plaintiff-Appellant,
versus
CLARK MILLSAP,
Defendant,
TODD PAYNE,
Defendant-Appellee.
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2 Opinion of the Court 21-12231
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:18-cv-00029-HLM
____________________
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Thomas Henley, proceeding pro se, sued Bartow County
Deputy Sheriff Todd Payne for, among other things, false arrest
under 42 U.S.C. § 1983 and false imprisonment under Georgia law.
The claims arose from Mr. Henley’s arrest for criminal trespass in
violation of O.C.G.A. § 16-7-21(b)(1). The arrest took place after
Mr. Henley—who was homeless at the time and using a shortcut
to get to a storage unit he had rented for shelter—was found riding
his bicycle in the parking lot of private property (a former school)
at around 10:30 pm. Law enforcement arrived at the scene after
Mr. Henley triggered a silent burglar alarm at a building on the
property. See D.E. 116 at 18–27.
After we remanded the case, see Henley v. Payne, 945 F.3d
1320 (11th Cir. 2019), the district court granted summary judgment
in favor of Deputy Payne on both claims. As to the § 1983 claim,
the court concluded that there were issues of material fact as to
whether Deputy Payne had arguable probable cause to arrest Mr.
Henley for criminal trespass under Georgia law. See D.E. 116 at
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21-12231 Opinion of the Court 3
43–47. But it ruled that Deputy Payne was nevertheless entitled to
qualified immunity because no Supreme Court or Eleventh Circuit
precedent clearly established that his actions in February of 2016,
when he made the arrest, were unlawful. See id. at 47–55. With
respect to the false imprisonment claim, the court ruled that Dep-
uty Payne was entitled to official immunity under state law because
Mr. Henley had not shown that he acted with actual malice. See
id. at 56–61.
On appeal, Mr. Henley challenges the grant of summary
judgment on the § 1983 false arrest claim but not the grant of sum-
mary judgment on the false imprisonment claim. We read a pro se
litigant’s brief liberally, but issues not raised by a pro se litigant are
deemed abandoned. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008). We therefore address only the § 1983 claim.
I
We review de novo a district court’s grant of summary
judgment, construing all facts and drawing all reasonable infer-
ences in favor of the non-moving party. See Burton v. Tampa
Hous. Auth., 271 F.3d 1274, 1276–77 (11th Cir. 2001). Summary
judgment is appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a mat-
ter of law. See Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1300 (11th
Cir. 2012).
A genuine dispute exists only if a reasonable fact-finder
could find that the plaintiff is entitled to a verdict by a
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preponderance of the evidence. See id. Unsupported factual alle-
gations, affidavits based on information and belief instead of per-
sonal knowledge, and mere conclusions are insufficient to with-
stand a motion for summary judgment. See Ellis v. England, 432
F.3d 1321, 1327 (11th Cir. 2005).
Qualified immunity shields government officials sued in
their individual capacities from civil liability when: (1) the govern-
ment official was acting within the scope of his discretionary au-
thority; and (2) the official’s conduct did not violate a clearly estab-
lished statutory or constitutional right. See Goebert v. Lee Cnty.,
510 F.3d 1312, 1329 (11th Cir. 2007). Thus, an official asserting
qualified immunity must first show that he was acting within his
discretionary authority. See Skop v. City of Atlanta, 485 F.3d 1130,
1136 (11th Cir. 2007). If he was, the burden shifts to the plaintiff
who must show that the official is not entitled to qualified immun-
ity because (1) the defendant violated a statutory or constitutional
right, and (2) the right was clearly established. See id. at 1136–37.
Qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law. See Jordan v. Mosley, 487
F.3d 1350, 1354 (11th Cir. 2007).
A warrantless arrest lacking probable cause violates the
Fourth Amendment and can underpin a § 1983 claim. See Brown
v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). The exist-
ence of probable cause at the time of arrest bars a challenge to the
arrest, and probable cause exists when the facts within the collec-
tive knowledge of law enforcement officials are sufficient to cause
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21-12231 Opinion of the Court 5
a person of reasonable caution to believe that a crime has been or
is being committed. See id. In deciding whether probable cause
exists, police officers need not resolve every inconsistency found in
the evidence, as long as it is reasonable to conclude from the total-
ity of the circumstances that a crime was committed. See Paez v.
Mulvey, 915 F.3d 1276, 1286 (11th Cir. 2019). Some conflicting ev-
idence or a possible affirmative defense does not “necessarily viti-
ate probable cause.” Id.
To receive qualified immunity, an officer does not need ac-
tual probable cause; arguable probable cause suffices. See id. Ar-
guable probable cause exists where reasonable officers in the same
circumstances with the same knowledge as the defendant “could
have believed that probable cause existed to arrest” the plaintiff.
See Skop, 485 F.3d at 1137 (quotation marks omitted). “This stand-
ard recognizes that law enforcement officers may make reasonable
but mistaken judgments regarding probable cause but does not
shield officers who unreasonably conclude that probable cause ex-
ists.” Id.
For purposes of qualified immunity, a right is clearly estab-
lished if it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted. See Coffin v. Brandau,
642 F.3d 999, 1013 (11th Cir. 2011) (en banc). There need not be a
materially identical case for a right to be clearly established. See
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th
Cir. 2004). A right can be clearly established even if there are nota-
ble distinctions between the current case and the precedents
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establishing the right so long as the prior decisions gave reasonable
warning that the conduct at issue violated constitutional rights. See
id. A right may be clearly established without prior caselaw if the
officer’s conduct lies so obviously at the core of what the Fourth
Amendment prohibits that the unconstitutionality of the action
was readily apparent to the officer. See Oliver v. Fiorino, 586 F.3d
898, 907 (11th Cir. 2009). A right also may be established if the
reasoning of a prior case, though not the holding, sends the same
message to reasonable officers in distinct situations. See Crocker
v. Beatty, 886 F.3d 1132, 1137–38 (11th Cir. 2018).
A defendant cannot be said to have violated a clearly estab-
lished right “unless the right’s contours were sufficiently definite
that any reasonable official in the defendant’s shoes would have
understood that he was violating it.” Plumhoff v. Rickard, 572 U.S.
765, 778–79 (2014). Put differently, existing precedent must have
placed “beyond debate” whether the officer violated that clearly
established right. See id. Thus, the Supreme Court has “stressed
the need to identify a case where an officer acting under similar
circumstances was held to have violated the Fourth Amendment.”
District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quota-
tion marks and ellipsis omitted).
II
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Mr. Henley makes a number of arguments in support of re-
versal. We address them below, though we reorder them for ease
of organization.1
First, Mr. Henley argues that summary judgment was im-
proper because the evidence in the record shows that Deputy Hen-
ley attempted to manufacture probable cause and the district court
failed to consider this evidence. See Appellant’s Br. at 11–15. The
problem with this argument is that the district court did not base
its grant of summary judgment on the existence of probable cause.
Indeed, as we noted in the introduction, the district court con-
cluded that there were issues of fact as to whether Deputy Payne
even had arguable probable cause to arrest Mr. Henley.
Second, Mr. Henley asserts that the district court failed to
consider Deputy Henley’s decision to ignore his exculpatory evi-
dence at the time of his arrest. See Appellant’s Br. at 23–29. But
the district court did consider this point in concluding that there
were issues of fact as to whether there was arguable probable cause
for an arrest. The district court wrote the following in its order:
“Although Defendant contends that the muddy footprints located
in the school matched Plaintiff’s shoes, Plaintiff produced evidence
that Defendant did not examine his shoes or express any interest in
Plaintiff’s shoes. Defendant also refused to listen to Plaintiff’s ex-
planation concerning why Plaintiff had ridden through the [s]chool
[p]roperty or to examine the rental agreement that Plaintiff
1 As to any issues not addressed in this opinion, we summarily affirm.
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attempted to show him. Instead, Defendant immediately pro-
ceeded to handcuff Plaintiff.” D.E. 116 at 45–46. So this second
argument does not provide a basis for reversal of the district court’s
summary judgment order. 2
Third, Mr. Henley contends that the district court erred in
conducting the “clearly established” analysis for purposes of quali-
fied immunity. To recap, the district court concluded that there
were issues of fact as to whether Deputy Payne had even arguable
probable cause to arrest Mr. Henley for criminal trespass. But it
ruled that in a false arrest case like this one, a plaintiff must still
show that the alleged conduct of the officer “violated clearly estab-
lished law under the specific facts of th[e] case.” Id. at 55. In sup-
port of the applicable standard, the district court cited to Wesby,
138 S.Ct. at 590, and Gates v. Khokhar, 884 F.3d 1290, 1302–03
(11th Cir. 2018).
As Mr. Henley sees things, two Eleventh Circuit cases con-
stituted clearly established law under the standard in Wesby and
Gates. Those two cases are Holmes v. Kucynda, 321 F.3d 1069,
1079 (11th Cir. 2003), and Skop, 485 F.3d at 1136–43. See Appel-
lant’s Br. at 14–15. We disagree.
2 Deputy Payne suggests in his brief that the district court meant to say that
there was arguable probable cause for Mr. Henley’s arrest. See Appellee’s Br.
at 24. That suggestion is meritless. The district court devoted about four
pages to explaining why there was a genuine issue of fact as to whether argu-
able probable cause existed, see D.E. at 44–47, and four pages are not a scrive-
ner’s error.
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Holmes, which involved an arrest on drug charges, reaf-
firmed the principle that an arrest without probable cause violates
the Fourth Amendment but also explained that a police officer who
is mistaken about probable cause is entitled to qualified immunity
if there was “arguable probable cause” for the arrest. See 321 F.3d
at 1079–80. And Skop, which involved an arrest for obstructing an
officer in the performance of his duties and for refusing to comply
with an order from an officer directing traffic, made the same
points. See 485 F.3d at 1136–43.
In our view, Holmes and Skop are too dissimilar with re-
spect to their fact patterns and the alleged crimes at issue. First,
neither Holmes nor Skop involved an arrest for the Georgia offense
of criminal trespass. And as Skop explains, “[w]hether an arresting
officer possesses probable cause or arguable probable cause natu-
rally depends on the elements of the alleged crime and the opera-
tive fact pattern.” 485 F.3d at 1137–38 (citation omitted). Second,
insofar as Holmes and Skop speak to the unconstitutionality of an
arrest without probable cause, they do so at too high a level of gen-
erality given the Supreme Court’s recent pronouncements. See,
e.g., Wesby, 138 S.Ct. at 590 (explaining that “clearly established”
law must not be defined “at a high level of generality,” and that in
“the context of a warrantless arrest, the [legal] rule must obviously
resolve whether the circumstances with which the particular
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officer was confronted . . . constituted probable cause”) (citation,
internal quotation marks, and brackets deleted). 3
We agree with the district court that Deputy Payne is enti-
tled to qualified immunity. Viewing the facts at summary judg-
ment in the light most favorable to Mr. Henley, see Lombardo v.
City of St. Louis, 2239, 2240 n.1 (2021), the district court correctly
concluded that a reasonable jury could find that when Deputy
Payne made the arrest for criminal trespass in violation of O.C.G.A.
§ 16-7-21(b)(1), he did so without probable cause in violation of the
Fourth Amendment. But that does not answer the qualified im-
munity question, which “asks whether the preexisting law was so
clear that, given the specific facts facing a particular officer, one
must say that every reasonable officer would have understood that
what he is doing violates the Constitutional right at issue.” Gates,
884 F.3d at 1302 (internal quotation marks and citation omitted).
On that question, as the district court correctly determined, there
are no cases from the Georgia Supreme Court, the Georgia Court
of Appeals, or from this Court demonstrating that Deputy Payne’s
arrest of Mr. Henley for criminal trespass “violated clearly estab-
lished law under the specific facts of this case.” D.E. 116 at 55. To
borrow the language in Gates, Mr. Henley “does not cite, and we
3 For two more recent cases exemplifying the Supreme Court’s requirement
that “clearly established” law in the Fourth Amendment context must hew
closely to the fact pattern presented to the officer who is asserting qualified
immunity, see Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021), and City
of Tahlequah v. Bond, 142 S. Ct. 9, 11–12 (2021).
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have not found, any already existing law [as of February of 2016]
that clearly established—beyond debate—the unlawfulness of an
arrest under the circumstances present here.” 884 F.3d at 1303.
III
The district court correctly granted summary judgment in
favor of Deputy Payne on qualified immunity grounds.
AFFIRMED.