Kameron Butler v. Charlene Smith

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11141

____________________

KAMERON BUTLER,

Plaintiff-Appellant,

versus

CHARLENE SMITH,

individually,

Defendant-Appellee,

CITY OF CONYERS, GEORGIA,

Defendant.

____________________

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2 Opinion of the Court 22-11141

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-03150-JPB

____________________

Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.

NEWSOM, Circuit Judge:

The Court sua sponte VACATES its prior opinion, issued

October 25, 2023, and substitutes the following in its place. The

only change is the deletion of the former footnote 5.

* * *

Parenting is hard. Raising children requires patience, sacri-

fice, and tenderness. It also requires tough choices. And some-

times it requires tough love. Even the most well-intentioned par-

ents struggle to get the balance just right.

That struggle was real for Kameron Butler, a single mother

of three who worked outside the home as a medical assistant.

When Butler and her family moved to a new school district, she

gave her 17-year-old son, Jayden, a choice: He could either enroll

at the school for which he was now zoned, in which case he would

have access to bus service to and from campus, or he could remain

at the school where he’d been for three years, in which case, due

to her work schedule, they’d have to get creative about his after-

noons. If he opted to stay, she said, Jayden could either walk sev-

eral miles home or spend the afternoons at school or at a local park

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until she could pick him up. Given the choice, Jayden opted to stay

at the school he knew.

We’ll get into the details soon enough, but in short, a school

resource officer, Charlene Smith, took issue with Butler’s plan for

managing Jayden’s afternoons and, eventually, sought and ob-

tained arrest warrants for first- and second-degree child cruelty—

felonies that are punishable by mandatory prison terms and that

target conduct, respectively, that “willfully deprives the child of

necessary sustenance to the extent that [his] health or well-being is

jeopardized” and that “with criminal negligence causes a child un-

der the age of 18 cruel and excessive physical or mental pain.” Ga.

Code Ann. § 16-5-70(a), (c). Butler was arrested, charged with both

crimes, and spent four days in jail before posting bond. All charges

were eventually dismissed.

Butler sued Officer Smith for malicious prosecution under

both federal and state law. The Fourth Amendment, under which

federal-law claims for malicious prosecution arise, affords police of-

ficers significant latitude to seek arrest warrants based on “probable

cause”—a reasonable (even if mistaken) belief that a crime has been

committed. The doctrine of qualified immunity extends that lati-

tude further, protecting an officer against liability provided that she

had arguable probable cause. State-law immunity doctrines like-

wise give officers ample breathing room to make reasonable mis-

takes.

But even the most officer-protective doctrines have their

limits. Officer Smith had Butler arrested on extraordinarily serious

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4 Opinion of the Court 22-11141

felony charges based on conduct that, by any objective measure,

doesn’t remotely qualify. And to make matters worse, the affida-

vits that Officer Smith submitted in support of her warrant applica-

tions conspicuously omitted material exculpatory information.

Viewing the evidence in the light most favorable to Butler, as we

must, we hold that Officer Smith is not entitled to qualified immun-

ity on Butler’s Fourth Amendment claim and that Butler has pre-

sented a genuine factual dispute regarding Officer Smith’s entitle-

ment to official immunity on her state-law claim. We therefore

reverse the district court’s grant of summary judgment.

I

A

In the fall of 2017, Kameron Butler was a single working

mother. Her 17-year-old son, Jayden, was starting his fourth year

at Rockdale County High School in central Georgia. Like so many

other parents and teens, Butler and Jayden had a strained relation-

ship.

When the family moved to a new apartment zoned for the

neighboring Salem High School, Butler gave Jayden a choice: He

could either transfer to Salem, in which case he could ride the bus

to and from school, or he could stay at Rockdale, but without the

benefit of bus service. Bus service mattered, Butler explained, be-

cause while she could drop Jayden off in the mornings, her work

schedule would prevent her from picking him up promptly after

school in the afternoons. So if Jayden opted to remain at Rockdale,

he could either (1) walk several miles home, (2) hang out in front

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of the school until early evening, when Butler could retrieve him,

or (3) go to a local park to wait for her. Given the choice, Jayden

decided to remain at Rockdale.

As expected, the afternoons proved challenging. None of

Jayden’s after-school options was perfect. If he walked home, he

wouldn’t be able to get into the family’s apartment because Butler

had taken away his key after he had repeatedly skipped school and

had friends over; instead, he would have to sit either in the apart-

ment leasing office until it closed or underneath a shaded gazebo

on the complex property. Remaining on school grounds violated

school policy. Neither the school nor the park had vending ma-

chines, and the school lacked outdoor water fountains—meaning,

in either event, that Jayden would have to plan ahead to pack a

snack, water bottle, etc. Jayden’s attempt to improvise a fourth

alternative—going to the Brandon Glen apartments to hang out

with friends—ended after he repeatedly got in trouble there; Butler

flatly forbade him to go to Brandon Glen.

While at Rockdale, Jayden befriended the school resource

officers—local cops assigned to the high school. Jayden developed

a particularly close relationship with SRO Charlene Smith, with

whom he frequently ate lunch and discussed his activities—for in-

stance, his participation on the school’s wrestling team, for which

he was trying to “drop weight.” Officer Smith occasionally gave

Jayden money, got him a used bike, and, on a few occasions, drove

him home without logging her trip, as department policy required

officers to do when transporting minors.

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6 Opinion of the Court 22-11141

On September 26, 2017, Jayden went to Brandon Glen apart-

ments after school despite his mother’s clear prohibition. When

his mother refused to pick him up there, he chose to stay the night

rather than walk home. The following morning, Jayden com-

plained to Officer Smith, and the two of them called Butler to dis-

cuss his afternoon situation. Officer Smith recorded the call. Of-

ficer Smith told Butler that Jayden wasn’t allowed to be on campus

unsupervised after school. In response, Butler explained her side

of the story: (1) She worked and thus couldn’t pick Jayden up im-

mediately after school; (2) Jayden could walk home, but if he did,

he couldn’t get into the apartment because she had taken his key

after he “skipp[ed] school” and “ha[d] people in the house”; (3) she

would rather her fiancé not pick Jayden up because “there [was] a

lot more to this going on” and because they had been having “seri-

ous behavior issues with Jayden since ninth grade”; but (4) Jayden

could always walk to “Pine Log [Park],” and she would “pick him

up from there.” Butler also explained to Officer Smith why she had

prohibited Jayden to go to Brandon Glen apartments: “We’ve had

that discussion a million times—he’s not allowed at Brandon Glen

because he gets in trouble when he goes” there. “[B]ecause [Jayden

was] not allowed” at the apartments, Butler continued, she would

“not pick him up from there”—to which Office Smith responded:

“That makes sense. If you told him not to go, and he goes, that

makes sense.”

During the call, Officer Smith told Butler that “the whole

totality of things that [she was] doing” constituted “cruelty to chil-

dren,” that “school social workers [and] the police [were]

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22-11141 Opinion of the Court 7

involved,” and that Butler could face “criminal charges.” Butler

responded by telling Officer Smith that she planned to “transfer

[Jayden] to Salem.” The three concluded the call by planning for

that afternoon. Officer Smith reported that Jayden had said “he

d[idn’t] want to sit in the heat” at the park, and when Butler asked

whether Jayden could “walk home and just wait for [a family mem-

ber] to open the door,” Officer Smith said that he “d[idn’t] want to

do that either.” When Butler admitted that she didn’t “know what

to tell him” then, Officer Smith relayed Jayden’s comment that

“he’ll just walk.”

Rather than walk home that afternoon as he had said he

would, Jayden went the one place his mother had told him not to

go: Brandon Glen. In a call to his mother that he secretly recorded,

Jayden asked her to come pick him up. Butler refused, emphasizing

that Jayden knew that she had forbidden him to go to Brandon

Glen and that he had told her that he planned to walk home. Una-

ware that she was being recorded, and clearly frustrated, Butler

was unfiltered:

Jayden, I told you [that I would pick you up at] the

school or Pine Log [Park]. That’s what I told that

bitch, that Officer Smith or whoever the fuck that

was. I said the school or Pine Log. And she said you

didn’t want to go to either one, so you [were] gonna

walk home.

Holding her ground, Butler repeatedly told Jayden that she

wouldn’t pick him up from Brandon Glen: “You went back to

Brandon Glen. I made it perfectly clear to [Officer Smith] and you

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8 Opinion of the Court 22-11141

that I would not pick you up from Brandon Glen, that you’re not

allowed to go to Brandon Glen, and you do it anyway. And you

did it again.” Butler told Jayden that he should “just go home.”

When Jayden asked if she would pick him up from Pine Log Park,

Butler responded—seemingly in response to his disobedience—

“No, I’m not now, no.” Instead, she said, he could “[g]et [a] ride

from somebody over in Brandon Glen, call Officer Smith, call

somebody . . . who takes your pity party, call one of them to drop

you off at the house and I will be there soon.”

The call ended inauspiciously, with Butler recapping the

substance of their earlier conversation with Officer Smith and reit-

erating her refusal to pick Jayden up from Brandon Glen, and with

Jayden then signing off:

Butler: [Officer Smith] asked you right then and

there. Where were you gonna go?

Were you gonna stay in the school or

were you gonna go to Pine Log? And

you told her that you didn’t wanna do

either one because you didn’t want to be

in the heat. So you told her to tell me

that you were walking home. That’s

where I thought you was gonna be at.

When I got home, you weren’t there. I

have left out again. So you can get a ride

to the house, and I’ll let you in when I

get there. But I’m not going to Brandon

Glen. I told her that, and I told you that.

I can go to Brandon Glen, but I won’t.

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Jayden: Alright, that’s all I need you to say. Al-

right, bye.

Jayden did not walk home. Instead, he texted Officer Smith, who

picked him up and drove him.

The next morning, Jayden provided Officer Smith with the

recording of his call with his mother. Although she now denies it,

a colleague’s notes reflect (perhaps not surprisingly) that Officer

Smith felt disrespected when she listened to the recording. Later

that same day, and after obtaining a statement from Jayden, Officer

Smith sought two arrest warrants, one each for first- and second-

degree child cruelty—both felonies. The first-degree offense pre-

scribes a five-year mandatory-minimum sentence for “willfully

depriv[ing a] child of necessary sustenance to the extent that the

child’s health or well-being is jeopardized.” Ga. Code Ann. § 16-5-

70(a). The second-degree offense prescribes a one-year mandatory

minimum for conduct that, “with criminal negligence[,] causes a

child under the age of 18 cruel or excessive physical or mental

pain.” Id. § 16-5-70(c).

In support of the warrant applications, Officer Smith submit-

ted two short affidavits. With respect to first-degree child cruelty,

she alleged that—

Kameron Butler committed the offence [sic] of cru-

elty to children when she refused to pick her son,

Jaylen [sic] Butler, up from school. Jaylen [sic] Butler

was told to stay in front of the school from 15:05-

19:00 hours. Kameron Butler allowed her boyfriend,

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10 Opinion of the Court 22-11141

Montrez, to pick up the little sister at C.J. Hick[s] at

approximately 14:30 hours. Montrez will not pick

Jaylen [sic] Butler up from school, but the schools are

across the street from each other. On 9/25 Jaylen [sic]

Butler took Uber home and had to sit outside until

9:00. 9/26 [Jayden] Butler had to go over to a friends’s

[sic] house because his mother wouldn’t pick him up.

Concerning second-degree child-cruelty, she added that—

Kameron Butler committed the offense cruelty to

children in the second degree when she leaves her

son, Jayden Demille Butler up at Rockdale County

High School from 15:05 until approximately 19:00

hours without food or water, and to indure [sic] the

heat. Jayden Butler has a heart condition (irregular

heartbeat) and should not indure [sic] long periods

without food, water or heat.

Based on Officer Smith’s affidavits—and with her oral clarification

that Jayden was 17 years old—the magistrate judge issued both

warrants.

That evening, Officer Smith texted Jayden and, when he

didn’t respond within about ten minutes, asked a police unit to go

to his apartment to check on him—and informed the officers about

the outstanding warrants. Butler was arrested and charged with

both felonies. She spent four days in jail before she was eventually

released on bond. All charges against Butler were dismissed four

months later.

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B

Butler sued Officer Smith and the City of Conyers, alleging

malicious-prosecution claims under both federal and state law. Af-

ter the City was dismissed from the case, the district court granted

Officer Smith summary judgment on the ground that she had prob-

able cause to believe that Butler had engaged in both first- and sec-

ond-degree child cruelty. This is Butler’s appeal.

II

We review a district court’s grant of summary judgment de

novo. See Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir. 2021).

Importantly here, “[a]ll evidence and factual inferences are viewed

in the light most favorable to the non-moving party, and all reason-

able doubts about the facts are resolved in favor of the non-moving

party.” Id. With that standard firmly in mind, we will consider

Butler’s federal- and state-law claims in turn.

A

The Supreme Court has recognized a Fourth Amendment

claim for malicious prosecution, which, it has explained, is “some-

times referred to as a claim for unreasonable seizure pursuant to

legal process.” Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). Be-

cause the claim is a mashup of sorts, the plaintiff must prove both

“(1) the elements of the common-law tort of malicious prosecution

and (2) a violation of his Fourth Amendment right to be free from

unreasonable seizures.” Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir.

2018).

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“[T]he constituent elements of the common law tort of ma-

licious prosecution include[]: (1) a criminal prosecution instituted

or continued by the present defendant; (2) with malice and without

probable cause; (3) that terminated in the plaintiff accused’s favor;

and (4) caused damage to the plaintiff accused.” Paez v. Mulvey, 915

F.3d 1276, 1285 (11th Cir. 2019) (quoting Wood v. Kesler, 323 F.3d

872, 882 (11th Cir. 2003)) (alteration in original). The Fourth

Amendment overlay adds two elements: The plaintiff must estab-

lish (5) “that the legal process justifying [her] seizure was constitu-

tionally infirm” and (6) “that [her] seizure would not otherwise be

justified without legal process.” Williams v. Aguirre, 965 F.3d 1147,

1165 (11th Cir. 2020). Qualified immunity, in effect, adds yet an-

other element—namely, (7) that that the law was “clearly estab-

lished.” Id. at 1168.

We can make quick work of elements (1), (3), (4), and (6).

First, Officer Smith initiated the child-cruelty prosecutions by seek-

ing and obtaining the warrants. Third, the prosecution terminated

in Butler’s favor when the charges against her were dismissed. See

Thompson, 142 S. Ct. at 1341. Fourth, the prosecution caused her

damage by landing her in jail for four days. And sixth, because But-

ler was detained for longer than 48 hours, her seizure would have

been “presumptively unconstitutional”—and thus not otherwise

justified—if effectuated without legal process. Williams, 965 F.3d

at 1164 (citing County of Riverside v. McLaughlin, 500 U.S. 44, 57

(1991)).

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On the merits, so to speak—we’ll return to qualified immun-

ity in due course—that leaves elements (2) and (5). Happily, this

Court recently explained that there is “significant overlap” be-

tween a malicious-prosecution claim’s common-law and constitu-

tional components and, indeed, that what we have called the sec-

ond element effectively merges into the fifth. See Luke v. Gulley, 975

F.3d 1140, 1144 (11th Cir. 2020) (“If a plaintiff establishes that a de-

fendant violated his Fourth Amendment right to be free from sei-

zures pursuant to legal process, he has also established that the de-

fendant instituted criminal process against him with malice and

without probable cause.”). Accordingly, we can focus here on ele-

ment (5)—whether “the legal process justifying [the plaintiff’s] sei-

zure was constitutionally infirm.” Williams, 965 F.3d at 1165.

A plaintiff can prove that the warrant used to arrest her was

“constitutionally infirm” by showing either that “the officer who

applied for the warrant should have known that [her] application

failed to establish probable cause” or that the officer “intentionally

or recklessly made misstatements or omissions necessary to sup-

port the warrant.” Id. at 1165 (citations omitted). For reasons ex-

plained in the next section, we conclude—drawing all factual infer-

ences in Butler’s favor—that the affidavits Officer Smith filed in

support of her warrant applications omitted material exculpatory

information that, had it been disclosed, would have negated prob-

able cause.

Finally, a brief word about qualified immunity. For mali-

cious-prosecution claims, we ask whether the type of shortcoming

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14 Opinion of the Court 22-11141

in the warrant application—such as offering “a conclusory affidavit

that clearly is insufficient to establish probable cause,” Luke v. Gul-

ley, 50 F.4th 90, 97 (11th Cir. 2022) (quotation marks omitted), or

“knowingly or recklessly mak[ing] false statements in an arrest af-

fidavit . . . if such false statements were necessary to the probable

cause,” Laskar v. Hurd, 972 F.3d 1278, 1297 (11th Cir. 2020) (quota-

tion marks omitted)—was “clearly established.” Here, it was and

is clearly established that intentionally or recklessly omitting mate-

rial information from a warrant affidavit violates the Fourth

Amendment. See Paez, 915 F.3d at 1287 (considering it clearly es-

tablished that a warrant affiant cannot omit known material facts). 1

1

Before jumping in, an important clarification regarding the

universe of information that a reviewing court may consider when

evaluating a Fourth Amendment malicious-prosecution claim:

1 We are unmoved by Officer Smith’s argument that recklessness isn’t enough.

Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994), on which she relies, didn’t hold

that reckless misstatements in (or omissions from) a warrant application don’t

violate clearly established law. Rather, it merely held, on the facts before it,

that “a reasonable officer might not have known that he was acting recklessly,

rather than negligently, in asserting without investigation” that police hadn’t

received an exculpatory lab report when, unbeknownst to the officer, they

had. Id. at 1554 (explaining that to succeed on his malicious-prosecution claim,

the plaintiff “must prove that a reasonable officer would have known that [the

officer’s] testimony was not just negligently false, but recklessly so”). As we

have explained, and will recount, a jury could reasonably determine that Of-

ficer Smith actually, subjectively knew the facts that she omitted from her af-

fidavits and that her nondisclosure of those facts was, at the very least, reckless.

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Unlike with a false-arrest claim challenging a warrantless arrest,

probable cause in a malicious-prosecution claim challenging an ar-

rest pursuant to a warrant can’t be shown by reference to infor-

mation in an officer’s investigative file or mind absent a “record . .

. that he submitted the file to or explained his thought processes to

the magistrate judge.” Luke, 50 F.4th at 96. Put another way, “an

otherwise insufficient affidavit cannot be rehabilitated [with] infor-

mation possessed by the [officer] when he sought the warrant but

not disclosed to the issuing magistrate.” Williams, 965 F.3d at 1162

(quoting Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971)) (altera-

tion in original). The reason for the distinction is that whereas “the

lawfulness of a warrantless arrest turns on whether the arresting

officer had probable cause, the lawfulness of seizures pursuant to

legal process turns on the validity of the legal process itself.” Id.

(citations omitted). Accordingly, for purposes of assessing Butler’s

malicious-prosecution claim—which challenges the legal process—

we consider only (1) the information that was before the magis-

trate, either in Officer Smith’s formal affidavits or otherwise, minus

(2) any material misstatements that Officer Smith might have

made, plus (3) any material information that she omitted from her

affidavits. See Paez, 915 F.3d at 1287 (“Our only question, then, is

whether the affidavits still would have established probable cause .

. . if they had included the omitted information . . . .”). And of

course, given the summary-judgment posture, our assessment of

that limited universe of information must credit Butler’s evidence

and draw factual inferences in her favor. See Tolan v. Cotton, 572

U.S. 650, 651 (2014) (vacating a grant of summary judgment and

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16 Opinion of the Court 22-11141

remanding for further proceedings because the Fifth Circuit “failed

to adhere to the axiom that in ruling on a motion for summary

judgment, [t]he evidence of the nonmovant is to be believed, and

all justifiable inferences are to be drawn in his favor”) (internal quo-

tation marks omitted). 2

a

First, the summary-judgment record reveals only three

items before the magistrate judge: Officer Smith’s two written affi-

davits and her oral statement that Jayden was 17 years old. Recall

that Officer Smith’s affidavit in support of the first-degree child-cru-

elty charge alleged that—

Kameron Butler committed the offence [sic] of cru-

elty to children when she refused to pick her son,

Jaylen [sic] Butler, up from school. Jaylen [sic] Butler

was told to stay in front of the school from 15:05-

19:00 hours. Kameron Butler allowed her boyfriend,

Montrez, to pick up the little sister at C.J. Hick[s] at

2 The district court and Officer Smith’s briefing before us impermissibly relied

on facts known to Officer Smith but not provided to the magistrate judge. See,

e.g., Br. of Appellee at 26–28. At oral argument, Officer Smith defended her

reliance on such facts based on what she characterized as a lack of record evi-

dence about what was, in fact, before the magistrate judge. See Oral Arg. at

22:30–22:43. But again, on summary judgment, we view the facts in the light

most favorable to Butler as the nonmovant. Accordingly, if there isn’t undis-

puted evidence that an inculpatory fact was before the magistrate, then we

must assume that it wasn’t. Cf. Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th

Cir. 2003) (explaining how to treat disputes about whether a misstatement was

before the magistrate judge).

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approximately 14:30 hours. Montrez will not pick

Jaylen [sic] Butler up from school, but the schools are

across the street from each other. On 9/25 Jaylen [sic]

Butler took Uber home and had to sit outside until

9:00. 9/26 [Jayden] Butler had to go over to a friends’s

[sic] house because his mother wouldn’t pick him up.

And her affidavit concerning the second-degree charge

added that—

Kameron Butler committed the offense cruelty to

children in the second degree when she leaves her

son, Jayden Demille Butler up at Rockdale County

High School from 15:05 until approximately 19:00

hours without food or water, and to indure [sic] the

heat. Jayden Butler has a heart condition (irregular

heartbeat) and should not indure [sic] long periods

without food, water or heat.

So, in determining whether the warrants that Officer Smith sought

and obtained were supported by probable cause, all of those facts

are fair game.3

3 We reject Butler’s contention that we can consider the facts alleged in each

affidavit only with respect to “its” corresponding offense. The magistrate had

both affidavits before him, and he considered the warrant applications simul-

taneously. The parties agree that we can consider the verbal statement re-

garding Jayden’s age in conjunction with both crimes, and it wouldn’t make

sense to treat written statements any differently.

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18 Opinion of the Court 22-11141

b

We needn’t subtract out any material misstatements in the

information that Officer Smith put before the magistrate judge be-

cause we conclude that there weren’t any. Butler asserts that Of-

ficer Smith’s second affidavit’s statement that “Jayden . . . has a

heart condition (irregular heartbeat)” was false, but she misunder-

stands the leeway that the Fourth Amendment gives law enforce-

ment officers to make reasonable mistakes. An officer who files an

affidavit in support of an arrest warrant need only have “a reason-

able belief in [the] veracity” of the information that she provides,

regardless of whether it ultimately turns out to be true. Paez, 915

at 1286–87. So, for instance, an officer is “[g]enerally . . . entitled to

rely on a victim’s criminal complaint as support for probable

cause.” Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir. 1998). Alt-

hough there is on this record a genuine dispute about whether Jay-

den actually had a heart condition, it is undisputed (1) that Jayden

told Officer Smith that he had one and (2) that he had worn a heart

monitor. Those facts, we think, amply support the conclusion that

Officer Smith had “reason[ to] belie[ve] in [the] veracity” of her

statement to that effect. Paez, 915 F.3d at 1286.

c

Material omissions are a different story. We find five such

omissions—five pieces of information that a jury could find Officer

Smith “knew about but intentionally or recklessly disregarded” in

her affidavits. Id. at 1287. She learned about the first four on the

call with Butler; she had independent knowledge of the fifth. We

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22-11141 Opinion of the Court 19

discuss each omission in turn, but consider them, as we must, in

their totality. See District of Columbia v. Wesby, 138 S. Ct. 577, 588

(2018) (explaining that probable cause depends on the totality of

the circumstances, a standard that “precludes . . . [a] divide-and-

conquer analysis”).

First, Officer Smith knew—but omitted from her affida-

vits—that Jayden had chosen, in full view of the transportation

challenges that it would present, to stay at Rockdale rather than

transfer to Salem. Indeed, as soon as Officer Smith suggested that

Jayden shouldn’t have to “hang out” at school or the park until But-

ler could get there to pick him up, Butler emphasized (1) that trans-

ferring to Salem would resolve all their issues but (2) that Jayden

had decided against it:

Unless he wants to transfer to Salem, then he can get

on the bus. But he wanted to be at Rockdale when

we moved, so, if he wants to transfer to Salem then

he can do that because that’s in our district.

When Officer Smith shortly thereafter suggested that Butler was

engaged in criminal misconduct, Butler responded by placing Jay-

den’s choice front and center:

Officer Smith: You know that’s cruelty to chil-

dren? . . . [J]ust the whole totality

of things that you’re doing. You

won’t pick him up. [You l]eave

him up here for four hours.

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20 Opinion of the Court 22-11141

Butler: . . . I did that because he said he

wanted to be at Rockdale, he

wanted to graduate from there. If

he wants to go to Salem, then I

will transfer him over to Salem,

and he can catch the bus. But that

isn’t at all cruelty to children.

Deprived of the knowledge that Jayden had chosen to remain at

Rockdale rather than transferring to the school for which he was

zoned, the magistrate judge couldn’t accurately assess Butler’s re-

sponsibility for Jayden’s afternoon transportation challenges.

Second, Officer Smith knew—but omitted from her affida-

vits—that Jayden had options other than remaining at school: He

could “walk up to Pine Log [Park],” near the school, or “walk

home.”

Third, Officer Smith knew—but again omitted—that Butler

said she had taken away Jayden’s house key “because he had people

in the house, he was skipping class, going home, and doing what

he wants to do.” Denied that explanation, the magistrate judge

could well have been misled by the affidavits’ statements that even

if Jayden walked home he would “ha[ve] to sit outside until 9:00

[p.m].”

Fourth, while Officer Smith’s affidavits stated that Jayden

“had to go over to a friend[’s] house because his mother wouldn’t

pick him up,” she knew, but omitted, the fact that Jayden went to

the friend’s—at Brandon Glen—despite his mother’s express

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22-11141 Opinion of the Court 21

prohibition. As already noted, Butler had explained her rule—

which Officer Smith agreed “ma[de] sense”—at length and in detail

during their call:

[I]f he goes to Brandon Glen [Apartments], then . . .

his friend . . . needs to drop him off. We’ve had that

discussion a million times. He’s not allowed at Bran-

don Glen because he gets in trouble when he goes to

Brandon Glen. . . . [H]e’ll call me at about 8, 9, 10

o’clock at night and say [his friend] can’t drop him off,

you need to come get me. No. . . . I will not pick him

up from there. I can but I won’t. Because he’s not

allowed over there.

Fifth, Officer Smith knew—but omitted—additional facts

about Jayden’s food consumption, facts that undermined (or at the

very least ameliorated) her affidavits’ vague charge that Butler left

him “without food or water.” Officer Smith often ate lunch with

Jayden at school. During these lunches, Officer Smith observed

that—in her own words—Jayden was “always trying to drop

weight [for wrestling], like he would eat salads sometimes.”4

2

“[A]n affidavit’s omissions may lead to an unreasonable and

unconstitutional warrant-based arrest if information that the

4 Butler contends that Officer Smith also omitted from her affidavits the facts

(1) that Jayden was not suffering any physical pain and (2) that Butler was a

tireless and devoted mother. See Br. of Appellant at 38. We conclude, though,

that based on what Jayden had told Officer Smith, she could reasonably (even

if mistakenly) have believed that those things weren’t true. See supra at 18.

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22 Opinion of the Court 22-11141

affiant knew about but intentionally or recklessly disregarded ne-

gates a finding of probable cause.” Paez, 915 F.3d at 1287. Accord-

ingly, the question we must answer is “whether [Officer Smith’s]

affidavits still would have established probable cause . . . if they had

included the omitted information.” Id.

Well, with one caveat. Because Officer Smith’s assertion of

qualified immunity can be defeated only by a showing of “clearly

established” law, we will review not for actual probable cause but

rather for “‘arguable’ probable cause.” Grider v. City of Auburn, 618

F.3d 1240, 1257 & n.25 (11th Cir. 2010). The arguable-probable-

cause standard asks whether a “reasonable officer[] in the same cir-

cumstances and possessing the same knowledge as the Defendant[]

could have believed that probable cause existed.” Kingsland v. City

of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). It protects officers

who “reasonably but mistakenly conclude that probable cause is

present.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003)

(quotations marks omitted). Probable cause, in turn, exists when

“a reasonable officer could conclude . . . that there was a substantial

chance of criminal activity.” Washington v. Howard, 25 F.4th 891,

899 (11th Cir. 2022) (emphasis and citation omitted) (omission in

original).

To assess probable cause, we look to the elements of the un-

derlying crime—and in particular, in a malicious-prosecution case

like this one, to the elements of the charged crime. See Williams, 965

F.3d at 1159–62 (holding that the so-called “any crime” rule—

which applies to false-arrest claims arising out of warrantless

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22-11141 Opinion of the Court 23

seizures and holds that it is enough for the arresting officer to have

probable cause to believe that any crime has been committed—

doesn’t apply to a malicious-prosecution claim arising out of an ar-

rest made pursuant to a warrant). While an officer needn’t prove

every element of the charged crime, see Jordan v. Mosley, 487 F.3d

1350, 1355 (11th Cir. 2007), her knowledge that an element isn’t

met—or is exceedingly unlikely to be met—will preclude a finding

of probable cause, see Holmes, 321 F.3d at 1081; Thornton v. City of

Macon, 132 F.3d 1395, 1399 (11th Cir. 1998).

With that primer, we turn our attention to the controlling

question: Given the (1) information that Officer Smith included in

her affidavits and (2) the material information that she knew but

omitted from those affidavits, could a reasonable officer have be-

lieved that probable cause existed to arrest Butler for first- or sec-

ond-degree child cruelty? For the reasons that follow, we hold that

the answer is no.

a

Georgia law criminalizes first-degree child cruelty, a felony,

as follows:

A parent, guardian, or other person supervising the

welfare of or having immediate charge or custody of

a child under the age of 18 commits the offense of

cruelty to children in the first degree when such per-

son willfully deprives the child of necessary suste-

nance to the extent that the child’s health or well-be-

ing is jeopardized.

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24 Opinion of the Court 22-11141

Ga. Code Ann. § 16-5-70(a). The crime thus entails both what we’ll

call an “act” element—“willfully depriv[ing] the child of necessary

sustenance”—and a “result” element—“to the extent that the

child’s health or well-being is jeopardized.” With respect to the

latter, Georgia courts have held that the phrase “necessary suste-

nance” refers to “that necessary food and drink which is sufficient

to support life and maintain health.” Sanders v. State, 715 S.E.2d

124, 127 (Ga. 2011) (citing Caby v. State, 287 S.E.2d 200 (Ga. 1982));

Justice v. State, 42 S.E. 1013, 1014 (Ga. 1902) (same). Reflecting the

seriousness of the offense, first-degree child cruelty is punishable

by a minimum of five and a maximum of 20 years in prison. Ga.

Code Ann. § 16-5-70(e)(1).

Based on the relevant facts, no reasonable officer could be-

lieve that probable cause existed to arrest Butler for first-degree

child cruelty. Butler’s conduct—both known and reasonably sus-

pected—met neither the offense’s act element nor its result ele-

ment.

First, the act. A jury could rationally conclude that no rea-

sonable officer could have believed that Butler “willfully de-

prive[d]” Jayden of anything, let alone the required “necessary sus-

tenance.” Remember, Butler gave Jayden a choice: Transfer to

Salem and enjoy the benefits of bus service or remain at Rockdale

with its attendant afternoon challenges. So, to the extent that Jay-

den was “deprive[d]” of a ride home, a jury could find it was a dep-

rivation of his own making. There is also a question of fact as to

whether Butler “willfully deprive[d]” Jayden of afternoon food or

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22-11141 Opinion of the Court 25

water. Viewing the evidence in the light most favorable to her,

Butler at worst—at worst—failed to pack Jayden an afternoon snack

and water bottle. But Jayden was a 17-year-old young man, not a

small child. While Georgia courts have held that a parent can com-

mit child cruelty by failing to feed a helpless infant, see, e.g., Brown

v. State, 777 S.E.2d 466, 468 (Ga. 2015), the cases involving older

children feature parents who actively prevent children from feed-

ing themselves, see, e.g., Nazario v. State, 746 S.E.2d 109, 118 (Ga.

2013) (parent “bound and gagged the child, forced her into a bed-

room closet, and dragged a dresser in front of the door so she could

not escape”); Franklin v. State, 831 S.E.2d 186, 190–91 (Ga. 2019)

(adoptive parents confined 15-year-old to a padlocked outhouse,

chicken coop, or locked closet without food or water for as long as

seven days).

Second, the result. Again, resolving all reasonable factual

doubts in Butler’s favor, a jury could rationally conclude that no

reasonable officer could have found probable cause to believe that

Jayden lacked “necessary sustenance”—as the Georgia courts have

interpreted that phrase, “th[e] necessary food and drink which is

sufficient to support life and maintain health.” Sanders, 715 S.E.2d

at 127. As an initial matter, it would be unreasonable to think that

Jayden actually lacked food or water. Again, Jayden was 17 years

old—and thus perfectly capable of packing himself a snack and fill-

ing up a water bottle. Moreover, even assuming that Jayden went

without food and water during a four-hour window in the after-

noons, there is no reason to think that so short a period left him

without the necessaries to “support life or maintain health.”

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26 Opinion of the Court 22-11141

Finally, and relatedly, Officer Smith’s frequent lunches with Jay-

den, and their conversations about his ongoing attempts to “drop

weight” for wrestling, suggested that he had more food than he

needed. 5

Viewing these facts in the light most favorable to Butler as

the non-moving party, this is not a close case. Based on the rele-

vant information, a jury could reasonably find facts that would lead

a reviewing court to conclude that Smith lacked even arguable

probable cause to believe that Butler had committed first-degree

child cruelty. 6

5 None of Officer Smith’s counterarguments move the needle. See Br. of Ap-

pellee at 25–28. First, even if Officer Smith claimed to believe that Jayden was

missing meals, nothing before the magistrate judge remotely suggested as

much. Second, Officer Smith’s reliance on Jayden’s supposed heart condition

is misplaced; in order to avoid rendering the first-degree child-cruelty statute

unconstitutionally vague, Georgia courts have routinely rejected reliance on

health risks other than malnourishment and dehydration. See, e.g., State v.

Lawrence, 425 S.E.2d 280, 280–81 (Ga. 1993) (rejecting a theory based on de-

priving a child of oxygen). Finally, even if denying Jayden a house key could

be deemed a “depriv[ation],” it certainly wasn’t a willful one—it was merely a

concerned mother’s reasonable attempt to break her son’s bad habit—about

which Officer Smith knew but failed to disclose in her affidavits—of skipping

school to hang out with friends.

6 Of course, Smith can raise qualified immunity at trial, urge the jury to view

the record as she has framed it, seek special interrogatories to resolve the his-

torical facts underlying her immunity argument, and then resubmit the issue

to the district court for decision. See e.g., Simmons v. Bradshaw, 879 F.3d 1157,

1164–65 (11th Cir. 2018) (“Where the defendant’s pretrial motions are denied

because there are genuine issues of fact that are determinative of the qualified

immunity issue, special interrogatories may be used to resolve those factual

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22-11141 Opinion of the Court 27

b

The magistrate judge also issued an arrest warrant for felony

second-degree child cruelty:

Any person commits the offense of cruelty to chil-

dren in the second degree when such person with

criminal negligence causes a child under the age of 18

cruel or excessive physical or mental pain.

Ga. Code Ann. § 16-5-70(c). Criminal negligence is defined as “an

act or failure to act which demonstrates a willful, wanton, or reck-

less disregard for the safety of others who might reasonably be ex-

pected to be injured thereby.” Id. § 16-2-1(b).

Based on the relevant information, viewed in the light most

favorable to Butler, no reasonable officer could have thought that

there was probable cause to believe Butler had either (1) commit-

ted the required act or (2) brought about the required result. As to

the act, Butler didn’t herself “cause” Jayden any pain. To the con-

trary, she accommodated Jayden’s choice to remain at Rockdale.

That choice entailed difficulties, to be sure, but they can’t—at least

at summary judgment—be laid at Butler’s feet. So too with respect

to the result—“cruel or excessive physical or mental pain.” In cases

issues. . . . We do not mean to imply, of course, that district courts should

submit the issue of whether a defendant is entitled to qualified immunity to

the jury. Qualified immunity is a legal issue to be decided by the court, and

the jury interrogatories should not even mention the term. Instead, the jury

interrogatories should be restricted to the who-what-when-where-why type

of historical fact issues.”).

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28 Opinion of the Court 22-11141

arising under Ga. Code Ann. § 16-5-70(b), which likewise prohibits

causing a child “cruel or excessive physical or mental pain”—there,

doing so “maliciously”—Georgia courts have interpreted what

they have called the “pain element” to turn on factors such as “a

child’s age, the extent of injuries, the nature of the assault to which

the child was subjected, and the force with which the child was

struck.” Moore v. State, 656 S.E.2d 796, 799 (Ga. 2008). None of

those considerations even remotely suggests criminal liability in

this case, and the first two—which apply equally to a “criminal[]

negligen[ce]” case under § 16-5-70(c)—affirmatively counsel

against it: Jayden was a 17-year-old young man, and he suffered no

discernible injuries. 7

Again, given the particular facts before us, we don’t think

the question is particularly close: A jury could reasonably make

findings that would lead a reviewing court to conclude that Officer

Smith lacked even arguable probable cause to believe that Butler

had committed second-degree child cruelty.

7 To close the loop, any inference of criminally negligent infliction of “cruel or

excessive” pain that might have arisen from the affidavits’ misleading sugges-

tions (1) that Jayden was once abandoned for a night and forced to stay with a

friend and (2) that Butler forced Jayden to sit in a particular, exposed spot out-

side the school building to wait on her completely evaporate upon considera-

tion of the material information that Officer Smith knew but failed to disclose.

First, Butler’s refusal to retrieve Jayden at his friend’s followed straightaway

from her policy—with which Officer Smith agreed—that she wouldn’t pick

him up from Brandon Glen; and second, Jayden in fact had several afternoon

options—walk home, go to Pine Log Park, etc.

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22-11141 Opinion of the Court 29

* * *

To recap our conclusion regarding Butler’s Fourth Amend-

ment malicious-prosecution claim: Applying the summary-judg-

ment standard, we hold that, taken together, (1) the facts that Of-

ficer Smith included in the affidavits that she filed in support of the

arrest warrants and (2) the material facts that she knew but omitted

from those affidavits do not support even arguable probable cause

to believe that Butler committed first- or second-degree child cru-

elty under Georgia law. Accordingly, we hold that Officer Smith is

not entitled to qualified immunity, and we reverse the district

court’s grant of summary judgment on Butler’s Fourth Amend-

ment claim.

B

We can make relatively quick work of Butler’s state-law ma-

licious-prosecution claim. Georgia law provides a cause of action

for “[a] criminal prosecution which is carried on maliciously and

without any probable cause and which causes damage to the per-

son prosecuted.” Ga. Code Ann. § 51-7-40. The state-law claim’s

elements mirror the common-law portion of the federal claim, al-

ready discussed. See Simpson v. State, 715 S.E.2d 142, 145 (Ga. 2011)

(noting that the state and federal probable-cause standards are sub-

stantially similar). Our explanation that the tort’s constituent ele-

ments are satisfied applies equally to Butler’s state-law claim. See

supra at 11–21. And our determination that Officer Smith lacked

even arguable probable necessarily means that she lacked actual

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30 Opinion of the Court 22-11141

probable cause. See supra at 21–29. That leaves only the issue of

immunity.

Official immunity under Georgia law works a little differ-

ently from qualified immunity. Officials performing discretionary

functions have immunity from personal liability unless “they act

with actual malice or with actual intent to cause injury.” Ga.

Const. art. I, § 2, ¶ IX(d). Malice, here, is a “deliberate intention to

do wrong.” Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999).

Evidence of “frustration, irritation, and possibly even anger” or

“proof of ill will” are insufficient, but ill will is enough when “com-

bined with the intent to do something wrongful or illegal.” Selvy v.

Morrison, 665 S.E.2d 401, 406 (Ga. Ct. App. 2008).

We hold that Butler has presented a genuine dispute about

whether Officer Smith acted with “malice.” Viewing the evidence

in the light most favorable to Butler, Officer Smith had a close re-

lationship with Jayden (she ate lunch with him, gave him money

and a used bike), she felt disrespected at being called a “bitch” by

Butler, she sought the arrest warrants very soon thereafter, seem-

ingly without substantial additional investigation, and she inexpli-

cably omitted material exculpatory information from her affidavits.

Collectively, those facts give rise to a reasonable inference that Of-

ficer Smith didn’t just make a mistake, but rather “knew that [But-

ler] had not committed the crimes” and harbored “ill will” and

“personal animus” against her. Wilson v. Cromer, 847 S.E.2d 213,

217 (Ga. Ct. App. 2020).

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22-11141 Opinion of the Court 31

III

For the foregoing reasons, we REVERSE the grant of sum-

mary judgment on both claims and REMAND for further proceed-

ings.

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22-11141 ED CARNES, J., Concurring 1

ED CARNES, Circuit Judge, concurring:

The Court’s opinion addresses whether an officer’s inten-

tional or reckless failure to include in his affidavit, or otherwise dis-

close to a magistrate judge, known exculpatory evidence renders

an arrest warrant constitutionally infirm. It does, the Court holds,

if the omitted evidence is material, meaning that “had it been dis-

closed, [it] would have negated probable cause.” Maj. Op. at 13. I

agree with that holding, insofar as it goes, and join the opinion be-

cause it does not purport to hold that in making the materiality

analysis a court shouldn’t also consider undisclosed inculpatory ev-

idence.

Deciding this case does not require us to address that issue,

but some of our sister circuits have done so. The Second Circuit

has held that when determining whether undisclosed exculpatory

evidence renders an arrest warrant constitutionally infirm, a court

should examine “all of the information the officers possessed when

they applied for the arrest warrant.” Escalera v. Lunn, 361 F.3d 737,

744 (2d Cir. 2004) (emphasis added); id. at 744–45 (The question is

whether, “if [the affiant] had included all she learned from her in-

vestigation, the application would have supported a reasonable . . .

belief that probable cause existed.”) (alteration adopted) (emphasis

added) (quotation marks omitted); see also Ganek v. Leibowitz, 874

F.3d 73, 85 n.6 (2d Cir. 2017) (“Precedent instructs that, in applying

the corrected affidavit doctrine, a court properly examines all of

the information the officers possessed when they applied for the

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2 ED CARNES, J., Concurring 22-11141

search warrant.”) (alteration adopted) (emphasis added) (quotation

marks omitted).

The Fifth Circuit agrees. In Loftin v. City of Prentiss, 33 F.4th

774, 782 (5th Cir. 2022), the plaintiff complained that the officer

omitted material information from his affidavit in support of an

arrest warrant. In the course of addressing that claim, the Fifth

Circuit decided that the materiality of omitted exculpatory evi-

dence requires considering any omitted inculpatory evidence as

well. Id. at 782–83. It explained that is the proper approach because

“a complete affidavit” would have included both the allegedly ex-

culpatory information that was omitted as well as “other infor-

mation that police gathered” that would have “only strengthen[ed]

the already solid basis for probable cause.” Id. at 782. In the Loftin

case, consideration of the inculpatory omissions along with the ex-

culpatory ones netted out to the conclusion that the omissions

were not material; they did not render the warrant constitutionally

infirm. Id. at 782–83; see also Dempsey v. Bucknell Univ., 834 F.3d 457,

474 (3d Cir. 2016) (“In the normal course, the next step of our anal-

ysis would be to reconstruct the affidavit, including the recklessly

omitted [exculpatory] information, so that we may proceed with a

materiality analysis. In some cases, however, there will be other

information in the record that gives context to or affects the weight

to be accorded the recklessly omitted information, such that it also

should be considered by the reviewing court in determining mate-

riality.”).