Gates v. Khokhar, No. 16-15118

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: JULIE CARNES, Circuit Judge
• Citation: 884 F.3d 1290
• Parties: Austin GATES, Plaintiff–Appellee, v. Hassan KHOKHAR, individually, J. Brauninger, individually, James Wayne Whitmire, individually, Officers of the City of Atlanta Police Department, Defendants–Appellants.
• Docket Number: No. 16-15118
• Decision Date: 13 March 2018

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Austin GATES, Plaintiff–Appellee,
v.
Hassan KHOKHAR, individually, J. Brauninger, individually, James Wayne Whitmire, individually, Officers of the City of Atlanta Police Department, Defendants–Appellants.

No. 16-15118

United States Court of Appeals, Eleventh Circuit.

March 13, 2018

Gerald Richard Weber, Jr., Law Offices of Gerry Weber, LLC, Atlanta, GA, Cynthia L. Counts, Duane Morris, LLP, Atlanta, GA, Daniel J. Grossman, Daniel J. Grossman Law Office, Atlanta, GA, for Plaintiff–Appellee.

Laura Sauriol Burton, Cathy Hampton, Maiysha R. Rashad, Robin Joy Shahar, Alisha Irene Wyatt–Bullman, City of Atlanta Law Department, Atlanta, GA, for Defendants–Appellants.

Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS,^* District Judge.

JULIE CARNES, Circuit Judge:

This action arises from Plaintiff Austin Gates's arrest for violating Georgia's mask statute, O.C.G.A. § 16-11-38, during a protest in downtown Atlanta on November 26, 2014. Plaintiff alleges that he was arrested without probable cause in violation of the Fourth Amendment, and that this flawed arrest also violated the First Amendment and various state laws. In this appeal, we consider his claims against three City of Atlanta police officers who were involved in the arrest: defendants Khokhar, Brauninger, and Whitmire (collectively "Defendants"). As to these individual officers, and based on this arrest, Plaintiff has asserted federal claims, pursuant to 42 U.S.C. § 1983, as well as state law claims for assault and battery, invasion of privacy, unlawful detention, and malicious prosecution. Defendants filed a motion to dismiss Plaintiff's § 1983 and state law claims on the grounds of qualified immunity and official immunity. The district court, however, denied their motion, and they now appeal.

Having carefully reviewed the record, and after hearing oral argument, we conclude that Defendants are entitled to qualified immunity on Plaintiff's § 1983 claims and to official immunity on Plaintiff's state law claims. Accordingly, we REVERSE the district court's order denying the motion to dismiss and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

We assume the following facts to be true for purposes of this appeal.¹ On November 26, 2014, Plaintiff participated in a march

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in downtown Atlanta to protest a grand jury's decision in a police-shooting case in Ferguson, Missouri. During the protest, Plaintiff was given a "V for Vendetta" mask by another protestor. As the image attached to the complaint shows, the mask is a stylized image of the Guy Fawkes character from the movie "V for Vendetta." It is designed to cover the entire face. According to Plaintiff, the mask has become popular among people protesting against politicians, banks, and financial institutions. Plaintiff acknowledges that he and other protesters wore the "V for Vendetta" masks during this Ferguson protest in Atlanta. Plaintiff alleges that he wore the mask both to "express himself and his disagreement with the Ferguson, Missouri grand jury's decision," and to maintain his anonymity during the protest. Plaintiff claims he never intended to threaten or intimidate anyone by wearing the mask.

At some point during the protest, Defendant Whitmire ordered the protesters to remove their masks. Plaintiff acknowledges that Whitmire warned the protesters multiple times over a loudspeaker that any person wearing a mask during the protest would be arrested. Plaintiff, however, claims he did not hear the warning. Whitmire subsequently issued an order over the radio for the police to arrest anyone who was wearing a mask.

According to Plaintiff, after Whitmire issued the order to arrest protesters wearing masks, a "swarm" of officers dressed in riot gear, including Defendant Khokhar, pushed their way into the protesting crowd. Plaintiff alleges that Khokhar grabbed Plaintiff by the shoulder, pulled him by the strap of his backpack, and arrested him. When Plaintiff asked what he had done and why he was being arrested, Khokhar did not immediately respond. After conferring with other officers, Khokhar "handcuffed [Plaintiff] with plastic cuffs" and "shoved [him] into [a] police car." Khokhar told Plaintiff that he was being arrested for wearing a mask.

Plaintiff alleges that he subsequently was taken to the Zone 5 precinct, where he was searched and then left in a chair in a back room, handcuffed. While Plaintiff was detained, Khokhar drafted an offense report charging Plaintiff with violating Georgia's mask statute, O.C.G.A. § 16-11-38. The report stated:

I [Officer Khokhar] observed [Plaintiff] wear a "V for Vendetta" mask. [Plaintiff] was actively participating in a protest. The protest had been warned on the loud speakers multiple times that anyone wearing a mask will be arrested. This information was relayed by Unit 15 over the radio that anyone wearing a mask should be arrested. [Plaintiff] still had his mask on. [Plaintiff] was arrested for wearing a mask.

Defendant Brauninger, Khokhar's supervising officer, reviewed and authorized the offense report.

Based on the charges asserted against him in the offense report, Plaintiff, along with other arrestees from the protest, was booked, searched, and photographed at the precinct. After several hours of waiting at the precinct, Plaintiff was taken to the Fulton County jail. Once he arrived at the jail, Plaintiff was able to make a phone call and ultimately post bail.

Plaintiff filed a complaint about his arrest with the City of Atlanta Office of Professional Standards. The City determined that Plaintiff's arrest was "justified, lawful, and proper" and exonerated all of the officers who were involved in it. As noted, Plaintiff thereafter sued the City of Atlanta and the individual officers, asserting § 1983 claims and state law claims. The individual officers moved to dismiss Plaintiff's § 1983 claims on the ground of qualified immunity and his state law claims

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on the ground of official immunity.² The district court denied the motion.

DISCUSSION

I. Standard of Review

We review the denial of a Rule 12(b)(6) motion to dismiss on qualified or official immunity grounds de novo , applying the same standard as the district court. See Bailey v. Wheeler , 843 F.3d 473, 480 (11th Cir. 2016). When ruling on a motion to dismiss, we "accept[ ] the facts alleged in the complaint as true, drawing all reasonable inferences in the plaintiff's favor." Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). To avoid dismissal, the "complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is plausible on its face when it contains sufficient facts to support a reasonable inference that the defendant is liable for the misconduct alleged. Id.

II. Qualified Immunity

A. Standard

Defendants argue that they are entitled to qualified immunity on Plaintiff's federal constitutional claims asserted under § 1983. "Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Dalrymple v. Reno , 334 F.3d 991, 994 (11th Cir. 2003) (internal quotation marks omitted). "When properly applied, [qualified immunity] protects ‘all but the plainly incompetent or those who knowingly violate the law.’ " Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).

To be clearly established, a right must be well-established enough "that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (internal quotation marks omitted and alteration adopted). In other words, "existing precedent must have placed the statutory or constitutional question beyond debate" and thus given the official fair warning that his conduct violated the law. Id . (emphasis added); Coffin v. Brandau , 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) ("The critical inquiry is whether the law provided [Defendant officers] with ‘fair warning’ that their conduct violated the Fourth Amendment.").

Fair warning is most commonly provided by materially similar precedent from the Supreme Court, this Court, or the highest state court in which the case arose. See Terrell v. Smith , 668 F.3d 1244, 1255 (11th Cir. 2012). However, a judicial precedent with identical facts is not essential for the law to be clearly established. Youmans v. Gagnon , 626 F.3d 557, 563 (11th Cir. 2010). Authoritative judicial decisions may "establish broad principles of law" that are clearly applicable to the conduct at issue. Griffin Indus. , Inc. v. Irvin , 496 F.3d 1189, 1209 (11th Cir. 2007). And occasionally, albeit not very often, it may be obvious from "explicit statutory or constitutional

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