Christine May v. Morgan County Georgia

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10147

Non-Argument Calendar

____________________

CHRISTINE MAY,

Plaintiff-Appellant,

versus

DEPUTY JOSEPH PRITCHETT,

Morgan County, Individually, et al.,

Defendants,

MORGAN COUNTY GEORGIA,

Defendant-Appellee.

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2 Opinion of the Court 22-10147

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 3:19-cv-00082-CDL

____________________

Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Christine May owned a vacation home on Lake Oconee in

Morgan County, Georgia, which she regularly rented to others for

one-week terms. May has consistently (and, it turns out, correctly)

maintained that she was within her rights to engage in short-term

rentals of her property. But the County disagreed, ultimately pros-

ecuting her for violating its zoning rules after they were amended

to expressly prohibit such short-term rentals. May was convicted

and spent two days in jail as a result. After the Georgia Supreme

Court vindicated May’s position in 2019 and dismissed her convic-

tion, May brought this action for malicious prosecution against the

County under 42 U.S.C. § 1983. The district court granted sum-

mary judgment for the County, and May appeals. After careful re-

view, we conclude that the County’s mistake of law did not erase

the probable cause for May’s prosecution. Because probable cause

existed, May has not established a violation of her Fourth Amend-

ment rights, an essential element of her § 1983 claim. We therefore

affirm the judgment in favor of the County.

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I.

A. Events Leading to Amendment of the County’s Zoning Ordi-

nance

May is a real-estate agent from New Jersey who built a tim-

ber-frame vacation home on Lake Oconee in Morgan County in

2007. To offset the costs of the land and home construction, May

began renting the property to vacationers beginning in 2008. Until

2016, May regularly rented the property for terms of less than 30

days, usually one week at a time.

When May began renting her home, the County’s zoning

ordinance listed permitted uses for properties in May’s zoning dis-

trict (LR-1) and banned any uses that were not listed. There was

no mention of rentals of any duration.

In practice, the County took the position that the ordinance

prohibited rentals of single-family dwellings for less than 30 days.

A magistrate judge agreed with that interpretation in 2008, finding

a homeowner guilty of engaging in illegal nightly rentals of his

property. Nevertheless, the judge told County representatives that

“they needed to revise the ordinance” to provide greater clarity for

short-term or vacation rentals.

Consistent with its interpretation of the ordinance, in July

2009, the County issued cease-and-desist letters to several home-

owners, including May, after receiving complaints from neighbors.

The letters advised that vacation or short-term rentals of less than

30 days violated the zoning ordinance, citing the magistrate judge’s

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4 Opinion of the Court 22-10147

ruling and Chapter 4.6 of the ordinance, which prohibited all uses

not expressly permitted. An attorney for one of the homeowners

responded in part that Chapter 4.6 failed to comply with due pro-

cess by giving fair warning that short-term rentals were prohibited.

Despite issuing the cease-and-desist letters, the County

doubted whether it could enforce the zoning ordinance against

short-term renting. Minutes from a July 2010 meeting of the

County Planning Commission show that the County did not be-

lieve it could enforce the magistrate judge’s “case-specific” ruling,

that “staff and the County Attorney had concerns regarding the le-

gality of enforcing” Chapter 4.6, and that “more concrete” lan-

guage was needed to regulate the rapidly growing vacation rental

business.

Towards that end, in October 2010, the County amended

the zoning ordinance to prohibit rentals for periods of less than 30

consecutive days in all zoning districts, except where specifically

allowed as a conditional use. Short-term rentals were not permit-

ted as conditional uses in the zoning district where May’s property

was located.

B. The Criminal Case Against May

Because May continued to rent her home for weekly terms,

the County issued her a citation in August 2011 for violating the

amended zoning ordinance, thereby initiating a misdemeanor

criminal proceeding against her. The criminal case was stayed for

several years, however, while she and the County litigated a civil

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22-10147 Opinion of the Court 5

lawsuit May filed challenging the amended zoning ordinance’s ban

on short-term renting. A state trial court initially agreed with her

claim that her use of the property for short-term rentals was lawful

under the old ordinance and so was “grandfathered” under the

amended ordinance. But the Georgia Court of Appeals vacated

that judgment and remanded the case for a ruling on two “thresh-

old” procedural grounds. And on remand, the trial court con-

cluded that May’s lawsuit was barred for failure to exhaust admin-

istrative remedies or to timely challenge the amended ordinance.

Both the Georgia Court of Appeals and the Georgia Supreme

Court denied review. 1

Meanwhile, after the criminal case was revived in 2015, May

filed a motion to dismiss the citation, again contending that she had

a grandfathered right to engage in short-term rentals of her prop-

erty. She asserted that the zoning ordinance in effect when she be-

gan renting either did not prohibit such rentals or did not give con-

stitutionally adequate warning that such rentals were prohibited.

In November 2015, the state trial court denied the motion to dis-

miss, concluding that May’s use of the property for short-term

1 After losing the state-court lawsuit, May also filed an application for rezoning

and a corresponding request that the County recognize her grandfathered

rights. The County denied her application and her subsequent appeal of that

decision. In addition, May filed an action in federal court in May 2015 seeking

essentially the same relief as her prior state-court lawsuit sought, but that case

was dismissed for lack of subject-matter jurisdiction under the Rooker-Feld-

man doctrine. See May v. Morgan Cnty., 878 F.3d 1001 (11th Cir. 2017).

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rentals was not lawful under the old ordinance, so it was not grand-

fathered under the amended ordinance.

Then, in March 2016, the state trial court found May guilty

of violating the amended zoning ordinance and sentenced her to

six months of probation, to serve the first 30 days in jail, and fined

her $500.00. At the sentencing hearing, the court found that May’s

testimony regarding her rental activity was not “an attempt to be

forthright and truthful” and that nothing was “going to get her at-

tention except some time in Morgan County jail.” The court or-

dered her taken into custody, and she ultimately served two days

and two nights in jail before being released on a supersedeas bond.

As a condition of granting May’s motion for a supersedeas

bond pending appeal, the trial court ordered May to remove her

listings for short-term rentals and to notify the County of any

renters or guests. In April 2016, May notified the County of her

intent to sell the property. Soon after, May entered an agreement

with the County to not rent her home at all in exchange for re-

moval of a warning sign about short-term renting that the County

had placed in front of her house.

On appeal, the Georgia Court of Appeals affirmed the trial

court’s ruling that short-term rentals were barred under Chapter

4.6 of the old zoning ordinance. May v. Morgan Cnty. (May I), 807

S.E.2d 28 (Ga. Ct. App. 2017). Nonetheless, the court remanded

for the trial court to address May’s argument that the old ordinance

was void for vagueness as applied to her, though it “d[id] not envy

the trial court’s task.”

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On remand in May 2018, the state trial court ruled that the

County’s pre-2010 zoning ordinance was void for vagueness on the

issue of short-term renting as applied to May. As a result, the court

found that May’s use of her property prior to the 2010 amendments

was lawful, such that she retained a grandfathered right to continue

that use after the amendments. The County appealed to the Geor-

gia Supreme Court, which unanimously affirmed the trial court’s

ruling that the old zoning ordinance was void for vagueness as ap-

plied to May’s use of her property for weekly rentals. May v. Mor-

gan Cnty. (May II), 824 S.E.2d 365 (Ga. 2019). The court explained

that the County’s interpretation of the old ordinance—“[t]hat May

would have been allowed to rent her house for a month but crimi-

nally prosecuted for renting it for a week”—“was nowhere to be

found in the text of the old ordinance” and would not have been

apparent to a person of ordinary intelligence. Id. at 367–68. Ac-

cordingly, May’s criminal citation for violating the amended ordi-

nance was dismissed.

II.

In September 2019, May filed the present lawsuit under 42

U.S.C. § 1983 against the County in federal court. 2 She alleged that

2 May also brought 42 U.S.C. § 1983 claims against several individuals, and she

asserted a state-law claim of malicious prosecution. The district court granted

judgment on the pleadings for the defendants on those claims, and May does

not appeal that ruling.

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8 Opinion of the Court 22-10147

the County had maliciously prosecuted her and had her jailed “for

violating a zoning ordinance that did not even apply to her.”

The district court granted summary judgment to the

County. The court found that May’s detention after a conviction,

based on a mistake of law by the trial judge, did not implicate the

Fourth Amendment’s prohibition against unreasonable seizures.

And even if the jailing amounted to a Fourth Amendment seizure,

the court continued, May did not establish that the County was the

“moving force” behind that seizure. The court explained that, de-

spite the code-enforcement proceeding, May was never arrested or

detained by a County official before her conviction, and that public

officials, absent evidence of misconduct like lying to or bribing the

judge, are “not liable for a Fourth Amendment seizure based on

the intervening acts of a judge who convicts and sentences a sus-

pect.” The court did not address whether probable cause sup-

ported the prosecution.

III.

We review the district court’s grant of summary judgment

de novo, construing the evidence and drawing all reasonable infer-

ences in favor of May, the non-moving party. Washington v. How-

ard, 25 F.4th 891, 897 (11th Cir. 2022). Summary judgment is ap-

propriate if “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In other words, “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the non-moving

party, there is no genuine issue for trial,” and summary judgment

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22-10147 Opinion of the Court 9

may be granted. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th

Cir. 1997) (quotation marks omitted). We may affirm on any

ground supported by the record, even if the district court did not

address it. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251–

52 & n.5 (11th Cir. 2013).

IV.

“A constitutional claim brought pursuant to § 1983 must

begin with the identification of a specific constitutional right that

has allegedly been infringed.” Paez v. Mulvey, 915 F.3d 1276, 1285

(11th Cir. 2019). May claims that the County violated her Fourth

Amendment rights by maliciously prosecuting her based on a zon-

ing ordinance that, as the Georgia Supreme Court later recognized,

did not apply to her.

We use “malicious prosecution” only as “a shorthand way

of describing certain claims of unlawful seizure under the Fourth

Amendment”—that is, seizures pursuant to legal process. Wil-

liams v. Aguirre, 965 F.3d 1147, 1157–58 (11th Cir. 2020) (quotation

marks omitted). For this claim, May must prove both “a violation

of her Fourth Amendment right to be free of unreasonable sei-

zures” and “the elements of the common law tort of malicious

prosecution.” Paez, 915 F.3d at 1285 (quotation marks omitted).

To establish the common-law elements of malicious prosecution,

a plaintiff must prove that the defendant “instituted or continued a

criminal prosecution against [her], with malice and without proba-

ble cause, that terminated in [her] favor and caused damage to

[her].” Williams, 965 F.3d at 1157 (quotation marks omitted).

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One of the Fourth Amendment’s protections is “the right to

be free from arrest without probable cause.” Barnett v. MacArthur,

956 F.3d 1291, 1296 (11th Cir. 2020). A Fourth Amendment viola-

tion involving seizures pursuant to legal process “occurs when le-

gal process itself goes wrong—when, for example, a judge’s proba-

ble-cause determination is predicated solely on a police officer’s

false statements.” Williams, 965 F.3d at 1158 (quotation marks

omitted). “In these situations, legal process has gone forward, but

it has done nothing to satisfy the Fourth Amendment’s probable-

cause requirement.” Id. (cleaned up). However, “the existence of

probable cause defeats a § 1983 malicious prosecution claim.”

Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010).

In addition to proving the elements of malicious prosecution

under § 1983, May must prove causation. In particular, she must

show that the County, “through its deliberate conduct, . . . was the

‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs

of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).

Although the district court did not directly address the issue,

we affirm on the ground that probable cause supported the prose-

cution against May, even assuming she was subject to a Fourth

Amendment seizure that was caused by the County.3 See Felici-

ano, 707 F.3d at 1251–52 & n.5. Because probable cause supported

3 For that reason, we need not and do not consider whether her detention

pursuant to a conviction was a Fourth Amendment seizure or whether the

County was a moving force behind the alleged injury.

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the prosecution, May has not established a violation of her Fourth

Amendment rights, which is an essential element of her § 1983 ma-

licious-prosecution claim.

A.

May argues that the prosecution against her was not sup-

ported by probable cause because she “was not ever subject to the

ordinance.” In her view, when evaluating probable cause for mu-

nicipal liability—as opposed to individual liability, which is subject

to qualified immunity—we must apply current law rather than the

law in effect at the time of the allegedly wrongful conduct. If we

apply that law—specifically the Georgia Supreme Court’s 2019 de-

cision in her criminal case—it’s clear that the amended zoning or-

dinance under which she was charged and convicted does not ap-

ply to her. See May II, 824 S.E.2d at 369.

Unlike individual defendants, municipalities cannot assert

qualified immunity as a defense to suit under § 1983. Owen v. City

of Independence, 445 U.S. 622, 650–51 (1980). So a municipality

may be liable for a constitutional violation even if it acted reasona-

bly or in good faith. Id. Without the protection of a good-faith

defense, the Supreme Court reasoned, “officials who may harbor

doubts about the lawfulness of their intended actions” may be

more likely “to err on the side of protecting citizens’ constitutional

rights” and “to minimize the likelihood of unintentional infringe-

ments on constitutional rights.” Id. at 652.

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Our decision in Cooper v. Dillon illustrates how the lack of

qualified immunity may affect municipal liability. There, the edi-

tor and publisher of a weekly newspaper sued after he was arrested

for violating a law that prohibited the disclosure of information ob-

tained as a participant in an internal law enforcement investigation.

403 F.3d 1208, 1212–13 (11th Cir. 2005). After concluding that the

law violated the First Amendment as an impermissible content-

based restriction on speech, we turned to the question of liability

for that constitutional injury. Id. at 1219. We held that the officer

was not liable in his individual capacity due to qualified immunity,

because “[a]t the time of Cooper’s arrest, the statute had not been

declared unconstitutional, and therefore it could not have been ap-

parent to [the officer] that he was violating Cooper’s constitutional

rights.” Id. at 1220. But that same officer was liable in his official

capacity as a policymaker for the city, we explained, because his

decision to enforce the law caused a constitutional deprivation. Id.

at 1222–23. Put differently, we held that the city was liable even

though the law “had not been declared unconstitutional” until

Cooper itself was decided. See id. at 1220.

May’s attempt to analogize this case to Cooper is unpersua-

sive, despite some facial similarities. As we noted above, our anal-

ysis must be guided by the “specific constitutional right that has

allegedly been infringed.” Paez, 915 F.3d at 1285. In Cooper, our

conclusion that the law at issue violated the First Amendment as

an impermissible content-based restriction on speech meant that

the plaintiff’s free-speech rights were violated when he was

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arrested under that law. See 403 F.3d at 1219–23. Because there is

no good-faith exception for municipal liability, it made sense to

hold the city liable for that constitutional violation even though the

law had not been declared unconstitutional at the time of arrest.

See Owen, 445 U.S. at 650–52.

Here, though, May’s claim is based on an allegedly unrea-

sonable seizure under the Fourth Amendment—that is, she asserts

that the prosecution against her was not supported by probable

cause. The Georgia Supreme Court’s ruling in 2019 that the old

zoning ordinance was unconstitutionally vague under the due pro-

cess clause, such that the amended zoning ordinance did not apply

to her, does not, by itself, establish a violation of May’s rights under

the Fourth Amendment. 4 Rather, that ruling matters only insofar

as it affects the assessment of probable cause.

The short answer is, it doesn’t. Contrary to May’s view, we

assess probable cause without the benefit of hindsight. See Wash-

ington, 25 F.4th at 904 (“The Fourth Amendment does not have

that special feature known as hindsight.” (quoting United States v.

Robinson, 535 F.2d 881, 884 (5th Cir. 1976))). “[T]he ultimate

touchstone of the Fourth Amendment is ‘reasonableness.’” Heien

v. North Carolina, 574 U.S. 54, 60–66 (2014). As a result, according

4 We note it’s unclear whether the Georgia Supreme Court applied state or

federal law, or both. But in any event, a violation of federal-due-process guar-

antees does not necessarily equate to a violation of rights protected by the

Fourth Amendment.

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14 Opinion of the Court 22-10147

to the Supreme Court, “the Fourth Amendment allows for some

mistakes on the part of government officials.” Id. at 60–61. In par-

ticular, probable cause or reasonable suspicion can rest on objec-

tively reasonable mistakes of fact or law. 5 Id. at 60–61, 65–66 (“The

Fourth Amendment tolerates only reasonable mistakes, and those

mistakes—whether of fact or of law—must be objectively reasona-

ble.”). So when a “mistake of law relates to the antecedent ques-

tion of whether it was reasonable for an officer to suspect that the

defendant’s conduct was illegal,” “there [is] no violation of the

Fourth Amendment in the first place.” Id. at 66.

Without directly addressing Heien, May maintains that the

Supreme Court’s decision in Owen controls and that, under it, we

must apply the Georgia Supreme Court’s 2019 ruling when ad-

dressing the existence of probable cause for her earlier prosecution

and detention. We disagree. Owen teaches that, once a constitu-

tional violation is established, a municipality cannot avoid liability

by claiming that its officials acted reasonably or in good faith. See

Owen, 445 U.S. at 650–51. But Heien prescribes the analysis we

use to determine whether there was an unreasonable seizure, and

5 The Supreme Court noted that, in Michigan v. DeFillippo, 443 U.S. 31, 64

(1979), it had held that a search was reasonable and therefore constitutional

even though DeFillipo “could not be prosecuted under the identification ordi-

nance,” which was found to be unconstitutional after his arrest and search.

Heien v. North Carolina, 574 U.S. 54, 63–65 (2014).

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therefore a Fourth Amendment violation, “in the first place.” 6

Heien, 574 U.S. at 66. And under Heien, an objectively reasonable

but ultimately mistaken view of the law does not undermine the

existence of probable cause or otherwise establish a violation of the

Fourth Amendment’s prohibition on unreasonable seizures. See

id. While that inquiry may overlap to some degree with the quali-

fied-immunity inquiry for individual liability, as May suggests,

Heien makes clear that the inquiries are “distinct.” Id. at 67.

For these reasons, May cannot prove that her prosecution

was unreasonable based solely on the fact that the amended zoning

ordinance was later found not to apply to her. See May II, 824

S.E.2d at 367–68. Rather, to defeat the existence of probable cause

for her prosecution, she must show that the County officials’ view

of the law was not only mistaken but objectively unreasonable. See

Heien, 574 U.S. at 66.

B.

May has made no effort to do so on appeal in the argument

sections of her briefing, despite the County’s direct arguments on

this point. So she has abandoned the issue. See Sapuppo v. Allstate

6 May cites Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), for the propo-

sition that Owen applies in the Fourth Amendment context. But in Pembaur,

the city had conceded that the later-decided Supreme Court opinion applied

retroactively in that case. Id. at 477 n.5. Even without that concession, though,

Pembaur is not on point because the Fourth Amendment issue concerned

whether a warrant was required to enter a third party’s premises to execute

an arrest warrant, not the reasonableness of a seizure. See id. at 474 & 477 n.5.

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Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (“We have

long held that an appellant abandons a claim when he either makes

only passing references to it or raises it in a perfunctory manner

without supporting arguments and authority.”).

Nor can we say that the record would support a finding that

the County’s view of the law was objectively unreasonable. May’s

conduct facially violated the amended zoning ordinance, the gen-

eral validity of which is not in dispute. While May raised an (ulti-

mately valid) affirmative defense to prosecution based on grandfa-

thered rights and vagueness, May v. Morgan Cnty., 878 F.3d 1001,

1003–04 nn. 3 & 4 (11th Cir. 2017), affirmative defenses usually do

not “vitiate probable cause,” Paez, 915 F.3d at 1286.

Plus, the state trial judges reached conflicting views about

whether the pre-2010 zoning ordinance prohibited short-term rent-

als, and the Georgia Court of Appeals eventually sided with the

County. That same court in 2017 recognized that the vagueness

issue was by no means an easy one. See May, 807 S.E.2d at 32. May

also offers no evidence of fraud or false statements by County offi-

cials. See Williams, 965 F.3d at 1158. Despite evidence that the

County doubted whether the pre-2010 ordinance could support a

prosecution for short-term renting, we are not persuaded that it

was objectively unreasonable for the County to believe that May

was subject to prosecution under the amended zoning ordinance,

notwithstanding her assertion of grandfathered rights.

In sum, May has not shown that the prosecution against her

was initiated or maintained without probable cause. She therefore

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has not established a violation of her Fourth Amendment right

against unreasonable seizures. See Williams, 965 F.3d at 1157–58.

And without proof of that element, she cannot prevail on her

§ 1983 claim of malicious prosecution. See Paez, 915 F.3d at 1285;

Grider, 618 F.3d at 1256 (“[T]he existence of probable cause defeats

a § 1983 malicious prosecution claim.”). We therefore affirm the

district court’s decision to grant summary judgment to the County.

V.

May also argues that that neither the County nor the district

court addressed the claims she raised under the Fourteenth

Amendment. She does not identify with any precision what those

claims were, however. In any case, we decline to consider any in-

dependent Fourteenth Amendment claim because the only claim

May raised at summary judgment was her § 1983 claim for mali-

cious prosecution.

It is well established “that arguments not raised at the district

court level will generally not be considered on appeal,” including

“grounds alleged in the complaint but not relied upon in summary

judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587,

598–99 (11th Cir. 1995) (en banc). That’s because “[i]n opposing a

motion for summary judgment, a party may not rely on [her]

pleading to avoid judgment” and must instead formulate the argu-

ments she wants the district court to consider. Id. at 599. “There

is no burden upon the district court to distill every potential argu-

ment that could be made based upon the materials before it on

summary judgment.” Id. Grounds not raised by a plaintiff in

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18 Opinion of the Court 22-10147

opposing a motion for summary judgment are “deemed aban-

doned.” Id.

In moving for summary judgment, the County asserted that

May’s sole claim was for malicious prosecution under the Fourth

Amendment and sought dismissal of her entire complaint. That

was a reasonable construction of her complaint because she cited

the Fourteenth Amendment in the context of her § 1983 malicious-

prosecution claim, which we have said is a type of Fourth Amend-

ment claim, and the Fourteenth Amendment is how the Fourth

Amendment applies to the States. See, e.g., Torres v. Madrid, 141

S. Ct. 989, 997 (2021) (noting that the Fourteenth Amendment “in-

corporated the protections of the Fourth Amendment against the

States”).

May, however, in her own motion for summary judgment

and her response opposing the County’s motion, did not raise any

independent claim or argument under the Fourteenth Amend-

ment. Rather, her briefing raised only a § 1983 malicious-prosecu-

tion claim. As a result, she abandoned any other claims she may

have had. See Resolution Trust, 43 F.3d at 598–99. And given

May’s failure to develop a Fourteenth Amendment claim with any

clarity on appeal, this is not a case “where refusal to consider it

would result in a miscarriage of justice.” Id. Accordingly, we de-

cline to consider any claim beyond the Fourth Amendment claim

for malicious prosecution we have addressed above.

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VI.

In sum, we affirm the district court’s judgment in favor of

the County on May’s § 1983 claim of malicious prosecution.

AFFIRMED.