Tyler L. Brienza v. City of Peachtree City, Georgia

USCA11 Case: 21-12290 Date Filed: 08/30/2022 Page: 1 of 25

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12290

____________________

TYLER L. BRIENZA,

Plaintiff-Appellant,

versus

CITY OF PEACHTREE CITY, GEORGIA,

ADAM C. WADSWORTH,

MARK A. WILLIAMS,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 3:17-cv-00134-TCB

____________________

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2 Opinion of the Court 21-12290

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

MOORER,* District Judge.

PER CURIAM:

Tyler Brienza was arrested for obstructing an investigation

into an underage drinking party. Brienza sued the arresting officers

for violating his First and Fourth Amendment rights and sued the

officers and Peachtree City for false imprisonment under Georgia

law. The district court granted summary judgment for the officers

and Peachtree City on all claims, and Brienza now appeals. We

affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1

The Investigation

In September 2015, a Peachtree City parent posted on Face-

book that her underage daughter received a flyer while at McIntosh

High School’s homecoming dance for a party “possibly involving

underage drinking.” The flyer advertised that an “after party”

would take place that same night at 9:00 p.m. at “Walsh’s” where

*

The Honorable Terry F. Moorer, United States District Judge for the South-

ern District of Alabama, sitting by designation.

1

The facts are largely undisputed. Because Brienza is the non-moving party,

we discuss the facts in the light most favorable to him. See Cowen v. Ga. Sec’y

of State, 960 F.3d 1339, 1342 (11th Cir. 2020) (“In reviewing the propriety of

summary judgment, we view the evidence in the light most favorable to the

non-moving party.” (quotation omitted)).

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21-12290 Opinion of the Court 3

“Luigi’s Famous Jungle Juice on site would be available with a $5

charge for guys” and “ladies were free as always.”

Lieutenant Matt Myers of the Peachtree City police depart-

ment saw the post and forwarded it to Officer Jamaal Greer, the

“school resource officer.” Officer Greer informed the school prin-

cipal and identified a recent graduate with the last name Walsh.

Officer Greer contacted the recent graduate’s mother “who ad-

vised that she was in Australia and that she wanted someone to

shut the party down.”

Corporal Mark Williams and Officer Adam Wadsworth

went to investigate the “possible underage drinking party.” They

arrived at the house around 10:00 p.m. Typically, when the officers

arrive at underage drinking parties in Peachtree City, they hear mu-

sic playing and observe lights on, multiple golf carts in the drive-

way, and people fleeing from the scene. But the house was dark

and quiet. And the officers observed “no one else outside,” “no

kids drinking in the front yard,” no one running from the house,

and no “bottles or anything around the house,” and they heard no

music playing. “On scene,” there was “[n]othing” that indicated

“there was a party going on.”

As the officers approached the house, Corporal Williams re-

marked to Officer Wadsworth that the flyer “might be a trick” be-

cause there was no sign of a party. The officers called in the license

plate of the car in the driveway, and dispatch informed them that

the vehicle belonged to Brienza and provided his address.

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Meanwhile, Officer Wadsworth walked around the house and saw

people inside toward the back of the house.

The officers knocked on the front door. Brienza and the res-

ident, Brian Walsh, opened the door, and the officers “could . . . see

inside the house.” They saw “a hallway leading into a back room

where the light was on,” and they could “hear people,” but “[i]t

wasn’t loud.” Looking at Brienza and Walsh, the officers observed

“absolutely no signs that either of them had alcohol either in their

hands or [that] they ingested any alcohol.” “There was no indica-

tion whatsoever that a crime was being committed,” and Corporal

Williams “didn’t believe there was a party going on at the time.”

Corporal Williams asked if he could speak to Brienza and

Walsh, so the two stepped outside. Corporal Williams asked if they

were alone, and Brienza declined to answer. Corporal Williams

asked for Brienza’s name, and Brienza declined to answer again.

Corporal Williams became “upset,” “[d]isappointed,” and “some-

what annoyed.” But Brienza’s refusal to answer questions did not

“impede” Corporal Williams from questioning Walsh.

Walsh asked what “this [wa]s about,” and Corporal Wil-

liams explained that he was investigating an “illegal party” at the

address and Brienza and Walsh were “required” to provide their

name and address. Walsh said that there was “nothing illegal going

on,” and Corporal Williams responded, “not yet.” Walsh was

“very open in talking” with the officers and answered their ques-

tions. Walsh provided his name to the officers and explained that:

(1) there was no illegal activity happening at the house; (2) there

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were only four people at the house, all over the legal drinking age;

(3) Walsh was twenty-six years old and Brienza was twenty-five

years old; and (4) Walsh had nothing to do with the flyer.

Corporal Williams asked Brienza for his name and birthdate.

Corporal Williams explained that he was conducting an investiga-

tion and that Brienza was required by law to provide his name and

birthdate, because otherwise Brienza would be obstructing the in-

vestigation. Brienza asked if he was being detained, and Corporal

Williams responded yes, that he was being detained for his refusal

to answer questions. Brienza didn’t want to answer any questions,

and Corporal Williams said that he could “respect” that, but he

only needed Brienza’s name and birthdate. Brienza gave his first

name but refused to give his last name and birthdate. Throughout

the encounter, Brienza did not act “in any manner that would sup-

port a disorderly conduct charge,” raise his voice, or use any

“fighting words.”

The Arrest

Corporal Williams placed Brienza under arrest, saying that

Brienza was “going to sit in jail a long time” if he didn’t give “some-

body” his “information.” Corporal Williams arrested Brienza for

obstructing the investigation by “not providing his identification.”

After arresting Brienza, Corporal Williams asked Walsh for Bri-

enza’s full name and Walsh provided it. The officers looked up

Brienza from their onboard computer and obtained Brienza’s

driver’s license number and birthdate. Corporal Williams decided

to bring Brienza to jail, and Officer Wadsworth assisted in Brienza’s

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6 Opinion of the Court 21-12290

arrest and detention, serving as the official arresting officer on rec-

ord.

Officer Wadsworth transported Brienza to the police sta-

tion, prepared the incident report, and issued Brienza a citation.

The citation charged Brienza with “resisting or interfering with an

officer” by failing to provide identification during an investigation,

in violation of Peachtree City Ordinance section 50-2. Brienza was

transferred to jail and released on bond about twenty-two hours

later.

The Criminal Proceedings

The state prosecutor upgraded Brienza’s charge to “obstruc-

tion of an officer” for “interfering” with the officers’ investigation

and “refusing to follow instructions,” in violation of Georgia Code

section 16-10-24(a). And the state prosecutor also charged Brienza

with “disorderly conduct” for using “opprobrious or abusive

words[,] which by their very utterance tend to incite . . . an imme-

diate breach of the peace and which . . . would provoke violent re-

sentment,” in violation of Georgia Code section 16-11-39.

The criminal trial started in October 2019. Before the jury

was called in, the state dropped the disorderly conduct charge. Af-

ter the close of evidence on the obstruction charge, Brienza moved

for a directed verdict. The state court denied the motion and sub-

mitted the case to the jury because “Walsh was willing to speak to

the officers” and Brienza interrupted the officers’ conversation

with Walsh “between two and four times.” But the state court also

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ruled that the officers lacked reasonable suspicion to believe that a

crime was being committed in the house, so “Brienza had the right

to walk away” and refuse to answer questions. The state later con-

tended that, if the court’s ruling was correct, there could not be

obstruction. Based on that position, the state moved to dismiss the

charge without objection, and the case was dismissed.

The Civil Lawsuit

Brienza sued the officers and Peachtree City in the Northern

District of Georgia while awaiting his criminal trial. Brienza sued

the officers under 42 U.S.C. section 1983 for false arrest and mali-

cious prosecution under the Fourth Amendment, and retaliatory

arrest under the First Amendment. He also sued the officers and

Peachtree City for false imprisonment under Georgia law.2

The district court stayed the case while the criminal charges

were pending, and reopened the case after the charges were

dropped. Then, the officers and Peachtree City moved for sum-

mary judgment on all claims. They argued that: (1) the officers

“had both actual and arguable probable cause to arrest and charge

Brienza” for obstruction; (2) the probable cause defeated the First

2

Brienza also brought state law claims for negligence, false arrest, and attor-

ney’s fees. Brienza hasn’t appealed the summary judgment for the defendants

on these negligence and false arrest claims. And although he contends that

“his derivative claim for attorney’s fees should be reinstated” because “the dis-

missal of [his] claims of false arrest, retaliation[,] and malicious prosecution

w[as] in error,” we affirm the dismissal of these claims. Because the attorney’s

fees claim depends on them, it also fails.

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8 Opinion of the Court 21-12290

Amendment retaliatory arrest claim; (3) the officers were entitled

to qualified immunity under federal law; (4) the state law false im-

prisonment claim against the officers was “barred by official func-

tion, discretionary immunity”; and (5) Peachtree City could not be

held vicariously liable under state law for the officers’ actions.

Brienza opposed the summary judgment motion. As to the

Fourth and First Amendment claims, Brienza argued that: (1) the

officers lacked reasonable suspicion because “they observed abso-

lutely no evidence of a party”; (2) no probable cause existed to ar-

rest Brienza for obstruction because, without reasonable suspicion,

“Brienza was free to leave—and free to refuse to answer questions

or provide his identification”; (3) the officers were not entitled to

qualified immunity because it was clearly established that, without

reasonable suspicion, refusal to cooperate did not justify a deten-

tion; and (4) because there was no probable cause, the arrest was

retaliatory under the First Amendment.

As to the state law false imprisonment claim, Brienza argued

that the officers were liable “for the same reasons they [we]re liable

for violating his Fourth Amendment rights: they detained him

without reasonable suspicion and arrested him without probable

cause.” And Brienza argued that Peachtree City was liable under

state law for the officers’ wrongful acts “through the respondeat

superior doctrine” because Peachtree City “waived [its] defense of

‘sovereign immunity’ . . . through its purchase of insurance cover-

age for police misconduct.”

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The district court granted summary judgment for the offic-

ers and Peachtree City on all claims. As to the Fourth Amendment

false arrest and malicious prosecution claims, the district court con-

cluded that the officers were entitled to qualified immunity be-

cause there was “reasonable suspicion to initiate the stop” and no

clearly established law prohibited the officers from arresting a sus-

pect for obstruction during an investigatory stop that was sup-

ported by reasonable suspicion.

The First Amendment retaliatory arrest claim failed on sim-

ilar grounds. The district court explained that a “retaliatory arrest

claim [wa]s barred by qualified immunity” unless Brienza showed

“that a reasonable officer would know that he lacked probable

cause” under clearly established law. The district court concluded

that Brienza failed to make that showing. The district court recog-

nized that, in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), the Supreme

Court created an exception to this rule: the district court described

Nieves as holding that a “retaliatory arrest claim [could] proceed

even if the arrest was supported by probable cause.” But, the dis-

trict court pointed out, Brienza “was arrested in 2015,” four years

before Nieves. In 2015, the district court concluded, it wasn’t

clearly established that officers violated the First Amendment

where there was probable cause for an arrest.

Brienza’s state law claim failed, too. The district court con-

cluded that the officers were entitled to official immunity under

Georgia law on the false imprisonment claim because Brienza

failed to show that the officers acted with a “wicked or evil

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10 Opinion of the Court 21-12290

motive.” And the district court rejected the state law claim against

Peachtree City because “probable cause existed as a matter of

[state] law.” The district court assumed that Peachtree City waived

sovereign immunity (by buying insurance) and could be vicari-

ously liable for the actions of its officers. But the district court ex-

plained that a warrantless arrest was lawful where the arrest was

“both supported by probable cause and made pursuant to one of

the exigent circumstances applicable to law enforcement officers.”

The district court concluded that “the so-called exigent circum-

stances requirement [wa]s met” because “Brienza’s refusal to coop-

erate” occurred in front of the officers. And, “as a matter of state

law, there was probable cause” because the state court in Brienza’s

criminal proceedings “denied his motion for a directed verdict” and

“such a denial [wa]s conclusive evidence that there was probable

cause.”

STANDARD OF REVIEW

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

judgment. Washington v. Howard, 25 F.4th 891, 897 (11th Cir.

2022). We view the evidence “in the light most favorable to the

non-moving party” and “resolve all reasonable doubts about the

facts in favor of the non-movant.” Id. (citation omitted).

DISCUSSION

We divide our discussion into two parts. First, we address

Brienza’s arguments that the district court erred in granting sum-

mary judgment for the officers on his false arrest and malicious

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21-12290 Opinion of the Court 11

prosecution claims under the Fourth Amendment, and his retalia-

tory arrest claim under the First Amendment. Then, we consider

Brienza’s contentions that the district court erred in granting sum-

mary judgment for the officers and Peachtree City on Brienza’s

state law claim for false imprisonment.

Federal Claims

“Qualified immunity protects government officials perform-

ing discretionary functions from suits in their individual capacities

unless their conduct violates clearly established statutory or consti-

tutional rights of which a reasonable person would have known.”

Whittier v. Kobayashi, 581 F.3d 1304, 1307 (11th Cir. 2009) (quota-

tion omitted). “To receive qualified immunity, an official must first

establish that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Id. (altera-

tion adopted and quotation omitted).

“If the official was acting within the scope of his discretion-

ary authority . . . the burden shifts to the plaintiff to show that the

official is not entitled to qualified immunity.” Id. at 1308 (quotation

omitted). “To overcome qualified immunity, the plaintiff must sat-

isfy a two prong test; he must show that: (1) the defendant violated

a constitutional right, and (2) this right was clearly established at

the time of the alleged violation.” Id. (quotation omitted). “The

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable of-

ficer that his conduct was unlawful in the situation he confronted.”

Id. (quotation omitted).

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Here, it is undisputed that the officers were acting within the

scope of their discretionary authority, so the burden shifts to Bri-

enza to show that: (1) the officers violated one of his constitutional

rights; and (2) the constitutional right was clearly established at the

time of the alleged violation. Brienza argues that the officers vio-

lated his Fourth Amendment rights by falsely arresting and mali-

ciously prosecuting him, and they violated his First Amendment

rights through a retaliatory arrest.

Fourth Amendment False Arrest Claim

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, . . . against unreasona-

ble . . . seizures, shall not be violated.” U.S. CONST. amend. IV.

“Because arrests are ‘seizures’ of ‘persons,’ they must be reasonable

under the circumstances.” District of Columbia v. Wesby, 138

S. Ct. 577, 585 (2018). And “[a] warrantless arrest is reasonable if

the officer has probable cause to believe that the suspect commit-

ted a crime in the officer’s presence.” Id. at 586.

“[T]he correct legal standard to evaluate whether an officer

had probable cause to seize a suspect is to ‘ask whether a reasona-

ble officer could conclude that there was a substantial chance of

criminal activity.’” Washington, 25 F.4th at 902 (quoting Wesby,

138 S. Ct. at 588) (alteration adopted). Probable cause determina-

tions depend on the totality of the circumstances. Wesby, 138

S. Ct. at 586. Probable cause “is not a high bar” and “requires only

the kind of fair probability on which reasonable and prudent peo-

ple, not legal technicians, act.” Kaley v. United States, 571 U.S. 320,

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338 (2014) (alterations adopted and quotation omitted). And “[i]f

an officer has probable cause to believe that an individual has com-

mitted even a very minor criminal offense in his presence, he may,

without violating the Fourth Amendment, arrest the offender.” At-

water v. City of Lago Vista, 532 U.S. 318, 354 (2001).

By contrast, reasonable suspicion “is a less demanding stand-

ard than probable cause and requires a showing considerably less

than preponderance of the evidence.” United States v. Lindsey, 482

F.3d 1285, 1290 (11th Cir. 2007) (quotation omitted). “To have rea-

sonable suspicion, an officer conducting a stop must have a reason-

able, articulable suspicion based on objective facts that the person

has engaged in, or is about to engage in, criminal activity.” Id.

(quotation omitted). If reasonable suspicion exists, the suspect can

be detained. See id. And “reasonable suspicion of criminal activity

may be formed by observing exclusively legal activity, even if such

activity is seemingly innocuous to the ordinary citizen.” Id. (inter-

nal quotations and citations omitted).

Brienza’s argument that the officers violated his Fourth

Amendment rights includes two premises. First, “[a]ny reasonable

articulable suspicion the officers had regarding an alleged ‘illegal

party’ at . . . Walsh’s house evaporated within minutes of their ar-

rival at the residence.” Second, when officers lack reasonable sus-

picion, an encounter is voluntary, so Brienza “had the right to re-

fuse to answer any questions and was free to retreat back into the

home.” Brienza concludes that the officers violated his Fourth

Amendment rights when they arrested him for refusing to

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14 Opinion of the Court 21-12290

cooperate because such refusal could not support reasonable suspi-

cion. See Florida v. Bostick, 501 U.S. 429, 437 (1991) (“We have

consistently held that a refusal to cooperate, without more, does

not furnish the minimal level of objective justification needed for a

detention or seizure.”); Florida v. Royer, 460 U.S. 491, 497–98

(1983) (plurality opinion) (explaining that, absent reasonable suspi-

cion, “[t]he person approached . . . need not answer any question

put to him; indeed, he may decline to listen to the questions at all

and may go on his way” and “his refusal to listen or answer does

not, without more, furnish” reasonable suspicion).

Both premises are mistaken. The officers could lawfully de-

tain Brienza after he stepped onto the porch based on the reasona-

ble suspicion that underage drinking was taking place. The officers

thus had probable cause to believe that Brienza obstructed their

investigation by refusing to cooperate after his lawful detention.

The officers had probable cause—and at least reasonable

suspicion—to believe that an illegal party was taking place at the

house, so they could lawfully detain Brienza when he stepped onto

the porch. See Lindsey, 482 F.3d at 1290; see also Knight v. Jacob-

son, 300 F.3d 1272, 1277 (11th Cir. 2002) (explaining that the Fourth

Amendment “does not prevent a law enforcement officer from tell-

ing a suspect to step outside his home and then arresting him with-

out a warrant” because, “[i]n that situation, the officer never

crosses the firm line at the entrance to the house” (quotation omit-

ted)). The officers had the Facebook post, including the flyer bear-

ing Walsh’s name, and police “identified a recent . . . graduate of

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21-12290 Opinion of the Court 15

the school with the last name Walsh.” The flyer advertised a party

that would last “ALL NIGHT LONG” at his home address. It de-

clared that there would be free alcohol for ladies. And the flyer was

distributed at a high school homecoming dance to an underage girl.

Based on these objective facts, a reasonable officer “could conclude

that there was a substantial chance of criminal activity,” Washing-

ton, 25 F.4th at 902 (alteration adopted and quotation omitted), and

could “have a reasonable, articulable suspicion” of such activity,

Lindsey, 482 F.3d at 1290.

Brienza argues that reasonable suspicion “evaporated within

minutes of their arrival” because the officers “observed absolutely

no evidence of a party—no excessive amount of people, cars, golf

carts, loud music, lights, cups, or beer bottles.” But that argument

is unpersuasive. The officers arrived about an hour after the flyer

advertised that the “ALL NIGHT” party would begin, and a rea-

sonable officer could think it unremarkable that most young peo-

ple would arrive fashionably late. Consistent with the facts known

to the officers, a small party could have been taking place inside.

Likewise, a reasonable officer could find unremarkable the lack of

cars an hour after the advertised start time. As the trial court in the

criminal case explained, “[fourteen]-year-olds don’t have cars.”

And it strains credulity to suppose that there was “no evidence”

other than the flyer. As the officers approached the house, Officer

Wadsworth reported that he “saw [people] in the house,” a fact

that supports the information on the flyer. So, based on a flyer that

identified Walsh and the home address, the independent

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16 Opinion of the Court 21-12290

corroboration that Walsh—a recent graduate—lived there, the fact

that the flyer was distributed to minors, and the fact that people

were present at the house, the officers could continue to reasona-

bly believe that there was a substantial chance of criminal activity.

See Washington, 25 F.4th at 902.

Nothing in the officers’ conversation with Brienza and

Walsh undermined their reasonable suspicion of underage drink-

ing. Indeed, after Brienza and Walsh opened the door, the officers

could hear other people inside. And Walsh later admitted that

there were four people in the house, evidencing that at least a small

gathering was taking place. To be sure, Walsh also asserted that

“everyone[ wa]s over the age of [twenty-one],” and he denied mak-

ing or distributing the flyer, but neither reasonable suspicion nor

probable cause “require officers to rule out a suspect’s innocent ex-

planation for suspicious facts.” See Wesby, 138 S. Ct. at 588. The

officers were “not required to believe” Walsh’s denials “or to weigh

the evidence in such a way as to conclude that probable cause did

not exist” because “police officer[s] need not resolve conflicting ev-

idence in a manner favorable to the suspect.” Washington, 25 F.4th

at 902. The flyer that was distributed to minors at a high school

and the presence of people inside the house furnished “plenty of

reasons to doubt” Walsh’s assurances. Id. (quotation omitted).

We conclude that probable cause and at least reasonable sus-

picion existed to detain Brienza on the porch to investigate under-

age drinking, barring a claim for false arrest under the Fourth

Amendment. See Williams v. Aguirre, 965 F.3d 1147, 1158 (11th

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Cir. 2020) (“[T]he any-crime rule . . . insulates officers from false-

arrest claims so long as probable cause existed to arrest the suspect

for some crime, even if it was not the crime the officer thought or

said had occurred.”). And because Brienza’s first premise—the

“reasonable articulable suspicion the officers had regarding an al-

leged ‘illegal party’ at . . . Walsh’s house evaporated within

minutes of their arrival at the residence”—is wrong, his second

premise—that, as a voluntary encounter, he “was not required to

answer any questions, let alone produce identification”—is also

wrong. Brienza does not contest that, if there was first reasonable

suspicion to detain him, there was probable cause to arrest him for

obstruction.

Indeed, the officers lawfully arrested Brienza for obstruc-

tion. Under Georgia law, “a person who knowingly and willfully

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

discharge of his . . . official duties shall be guilty of a misdemeanor.”

GA. CODE ANN. § 16-10-24(a). “The essential elements of” the

Georgia obstruction statute are: (1) “that the act constituting ob-

struction or hindering was knowing and willful”; and (2) “that the

officer was lawfully discharging his official duties.” Taylor v. State,

825 S.E.2d 552, 554 (Ga. Ct. App. 2019) (quotation omitted). A sus-

pect can violate section 16-10-24(a) by refusing to identify himself

and by refusing to surrender documents after he has been lawfully

detained. See Draper v. Reynolds, 369 F.3d 1270, 1276–77 & n.10

(11th Cir. 2004); Pinchon v. State, 516 S.E.2d 537, 538 (Ga. Ct. App.

1999) (“Argument, flight, stubborn obstinance, and lying are all

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18 Opinion of the Court 21-12290

examples of conduct that may satisfy the obstruction element.”);

Bailey v. State, 379 S.E.2d 816, 817 (Ga. Ct. App. 1989) (“The trial

court was authorized to find that appellant’s refusal to identify him-

self was not merely discourteous, it actually hindered and ob-

structed [the officer’s] investigation . . . .”). And even if it is an open

question whether the Constitution permits “punish[ing] [an indi-

vidual] for refusing to identify himself in the context of a lawful

investigatory stop,” Brown v. Texas, 443 U.S. 47, 53 n.3 (1979), the

officers need only establish that they had probable cause to believe

that Brienza violated a “presumptively valid” statute, see Michigan

v. DeFillippo, 443 U.S. 31, 34, 36–40 (1979) (holding that an “officer

had probable cause to believe” that a suspect violated an ordinance

that “declared it a misdemeanor for one stopped for ‘investigation’

to ‘refuse to identify himself’” although a state court later declared

the ordinance unconstitutionally vague because “[a] prudent of-

ficer . . . [is not] required to anticipate that a court would later hold

the ordinance unconstitutional,” because “[p]olice are charged to

enforce laws until and unless they are declared unconstitutional”).

The officers had probable cause to believe that Brienza com-

mitted a criminal offense in their presence, so they could have,

“without violating the Fourth Amendment, arrest[ed]” Brienza.

Atwater, 532 U.S. at 354. Brienza repeatedly refused to identify

himself and confirm his date of birth. And Brienza orally objected

when Corporal Williams asked Walsh if he could see the other peo-

ple who were inside the house. Based on these facts, the officers

“could conclude that there was a substantial chance,” Washington,

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25 F.4th at 902 (alteration accepted and quotation omitted), that

Brienza’s “[a]rgument,” “stubborn obstinance,” Pinchon, 516

S.E.2d at 538 (citation omitted), and “refusal to identify himself . . .

actually hindered and obstructed [their] investigation,” Bailey, 379

S.E.2d at 817 (citation omitted). Brienza’s Fourth Amendment

false arrest claim must fail. Washington, 25 F.4th at 903.

Fourth Amendment Malicious Prosecution Claim

“To establish a federal malicious prosecution claim under

[section] 1983, the plaintiff must prove a violation of his Fourth

Amendment right to be free from unreasonable seizures in addition

to the elements of the common law tort of malicious prosecution.”

Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). Malicious pros-

ecution “requires a seizure pursuant to legal process.” Williams,

965 F.3d at 1158 (quotation omitted).

Here, there was no seizure “pursuant to legal process.” Id.

(quotation omitted); see Kingsland v. City of Miami, 382 F.3d 1220,

1235 (11th Cir. 2004), abrogated on other grounds by Williams, 965

F.3d at 1159. “In the case of a warrantless arrest, the judicial pro-

ceeding does not begin until the party is arraigned or indicted.”

Kingsland, 382 F.3d at 1235. Brienza’s “arrest cannot serve as the

predicate deprivation of liberty because it occurred prior to the

time of arraignment, and was not one that arose from malicious

prosecution as opposed to false arrest.” See id. (quotation omit-

ted). And because “normal conditions of pretrial release” do not

“constitute a continuing seizure barring some significant, ongoing

deprivation of liberty, such as a restriction on the defendant’s right

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20 Opinion of the Court 21-12290

to travel interstate,” id. at 1236 (quotation omitted), Brienza could

not establish a Fourth Amendment malicious prosecution claim.

First Amendment Retaliatory Arrest

The First Amendment protects an individual’s right to speak

and right not to speak. Wooley v. Maynard, 430 U.S. 705, 714

(1977) (“[T]he right of freedom of thought protected by the First

Amendment against state action includes both the right to speak

freely and the right to refrain from speaking at all.”). To state a

First Amendment retaliatory arrest claim under section 1983:

a plaintiff generally must show: (1) [he] engaged in

constitutionally protected speech, such as [his] right

to petition the government for redress; (2) the defend-

ant’s retaliatory conduct adversely affected that pro-

tected speech and right to petition; and (3) a causal

connection exists between the defendant’s retaliatory

conduct and the adverse effect on the plaintiff’s

speech and right to petition.

DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th Cir.

2019).

The Supreme Court “has recognized that retaliatory animus

by a governmental actor is a subjective condition that is ‘easy to

allege and hard to disprove.’” Id. (quoting Nieves, 139 S. Ct. at

1725). “For this reason, courts have identified two general ap-

proaches to retaliation claims against governmental actors, with

the particular approach chosen dependent on the type of alleged

retaliation at issue.” Id. “One approach” is “typically used when a

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21-12290 Opinion of the Court 21

governmental employee claims that he was fired because he en-

gaged in First Amendment activity.” Id. This isn’t an employee-

firing case, so the first approach doesn’t apply here. “The second

approach” is “taken when the governmental defendant has utilized

the legal system to arrest or prosecute the plaintiff,” as alleged here.

Id.

For the second approach, we “require the plaintiff to plead

and prove an absence of probable cause as to the challenged retali-

atory arrest or prosecution in order to establish the causation link

between the defendant’s retaliatory animus and the plaintiff’s in-

jury.” Id. “The presence of probable cause should generally defeat

a First Amendment retaliatory arrest claim.” Nieves, 139 S. Ct. at

1726.

But, in 2019, the Supreme Court in Nieves “explained that,

although probable cause generally defeats a retaliatory arrest claim,

‘a narrow qualification is warranted for circumstances where offic-

ers have probable cause to make arrests, but typically exercise their

discretion not to do so.’” DeMartini, 942 F.3d at 1296–97 (quoting

Nieves, 139 S. Ct. at 1727). “In those types of cases, an unyielding

requirement to show the absence of probable cause could pose a

risk that some police officers may exploit the arrest power as a

means of suppressing speech.” Id. at 1297 (quotation omitted).

This “narrow exception to the no-probable-cause require-

ment . . . applies when a plaintiff presents objective evidence that

he was arrested when otherwise similarly situated individuals not

engaged in the same sort of protected speech had not been.” Id.

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22 Opinion of the Court 21-12290

(quotation omitted). “The Supreme Court stated that the plaintiff’s

showing of such objective evidence would address the causal con-

cern that non-retaliatory reasons prompted the arrest and avoid a

subjective inquiry into the officer’s individual statements and mo-

tivations.” Id.

If the plaintiff makes this requisite objective evidence

showing that others similarly situated were not ar-

rested by the individual officer, the plaintiff’s First

Amendment retaliatory arrest claim may move for-

ward in the same manner as claims where the plaintiff

has met the threshold showing of the absence of prob-

able cause.

Id. (quotation omitted).

But Nieves, and the exception to the absence-of-probable-

cause requirement, were not clearly established until 2019. As the

district court concluded, at the time of Brienza’s arrest in 2015,

there was no clearly established law creating an exception to the

“no-probable-cause” requirement for First Amendment retaliatory

arrest claims. Indeed, at the time of Brienza’s arrest, the clearly

established law was that a First Amendment retaliatory arrest claim

was “defeated by the existence of probable cause.” Wood, 323 F.3d

at 883. Because, as we’ve already explained, the officers had prob-

able cause to arrest Brienza for obstructing the investigation into

underage drinking, the officers were entitled to qualified immunity

on Brienza’s First Amendment retaliatory arrest claim.

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21-12290 Opinion of the Court 23

State Law False Imprisonment Claim

Brienza sued the officers and Peachtree City for false impris-

onment under Georgia law. See GA. CODE ANN. §§ 51-7-20, 51-7-

22. “The essential elements of false imprisonment in Georgia ‘are

an arrest or a detention and the unlawfulness thereof.’” Hardigree

v. Lofton, 992 F.3d 1216, 1232 (11th Cir. 2021) (quoting Kline v.

KDB, Inc., 673 S.E.2d 516, 518 (Ga. Ct. App. 2009) (alterations

adopted)). Under Georgia’s false imprisonment statute, “[f]alse im-

prisonment is the unlawful detention of the person of another, for

any length of time, whereby such person is deprived of his personal

liberty.” GA. CODE ANN. § 51-7-20. “In the context of a warrantless

arrest, probable cause and an exception to the warrant requirement

(like the offense being committed in the officer’s presence) are re-

quired for the arrest to be lawful.” Hardigree, 992 F.3d at 1232 (cit-

ing GA. CODE ANN. § 17-4-20(a)(2)(A)).

Brienza’s state law claim failed against the officers and

Peachtree City because his arrest was not unlawful under Georgia

law. To be sure, “[t]he existence of probable cause for an officer to

make an arrest without a warrant is not a complete defense to a

false imprisonment claim because, even if probable cause existed

to believe a crime was committed, a warrantless arrest is still un-

lawful unless made pursuant to one of the exigent circumstances

applicable to law enforcement officers” in Georgia Code section 17-

4-20(a). Kline, 673 S.E.2d at 518. Under section 17-4-20(a), “a law

enforcement officer is authorized to make an arrest for a criminal

offense without a warrant . . . if the offense is committed in such

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24 Opinion of the Court 21-12290

officer’s presence or within such officer’s immediate knowledge.”

Id. (quotation omitted).

Here, the officers had probable cause to arrest Brienza, and

the arrest was “made pursuant to one of the exigent circumstances”

in section 17-4-20(a). Id. The officers had probable cause under

Georgia law because “the trial court’s denial of [his] motion for a

directed verdict of acquittal constitute[d] a binding determination

of the existence of probable cause.” See Monroe v. Sigler, 353

S.E.2d 23, 25 (Ga. 1987). And it is undisputed that Brienza’s ob-

struction occurred in the officers’ presence, satisfying one of the

exigency requirements in section 17-4-20(a). Because Brienza’s ar-

rest was lawful, his state law false imprisonment claim must fail.3

CONCLUSION

Because the officers had probable cause to arrest Brienza for

obstructing the investigation into underage drinking, and because

the officers did not violate any clearly established law, the district

court did not err in granting summary judgment for the officers on

Brienza’s Fourth Amendment false arrest and malicious prosecu-

tion claims, and his First Amendment retaliatory arrest claim. And

because the officers had probable cause and arrested Brienza under

“exigent circumstances,” see Kline, 673 S.E.2d at 518, the district

court did not err in granting summary judgment for the officers

3

Because Brienza did not show that he was falsely imprisoned under Georgia

law, we don’t need to decide whether the officers and Peachtree City had of-

ficial and sovereign immunity under state law.

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21-12290 Opinion of the Court 25

and Peachtree City on Brienza’s state law claim for false imprison-

ment.

AFFIRMED.