On February 21, 2024, the Eleventh Circuit Court of Appeals decided Mincey v. Vardman[i], which serves as an excellent review of the law related to false arrest. The relevant facts of Mincey are as follows:
On July 7, 2019, Mincey and her daughter Sonnier were in the waiting room of the emergency room (ER) at Piedmont Columbus Northside Hospital in Columbus, Georgia. Mincey and Sonnier were visiting a sick loved one, and they were each holding one of Sonnier’s 10-month-old twins. By chance, some extended family members were also present in the ER visiting a different sick loved one. Mincey and Sonnier were sitting with several family members, including Patricia Banks, Jariyah Cotton, Alberta Cotton, Nifferteria Parham, Keonte Alexander, Marsha Alexander, and Linda Green.
Vardman was a corporal in the Columbus Police Department, and was working off-duty providing security in the ER on July 7, 2019. Vardman was wearing his standard issue Columbus Police Department uniform. Vardman was seated at the front desk of the ER waiting room next to Katharina Spurlock, the ER patient access representative. Spurlock controlled access to the ER rooms from the waiting area. At one point, when Spurlock opened the secure doors to allow an authorized visitor into the ER, another unauthorized person also went through the secure doors. Spurlock expressed her frustration, and Keonte Alexander made a comment to those sitting next to him that “if she didn’t like her job, she needs to go find another one.”
This led Vardman to get up from behind the desk to address the group. Keonte Alexander acknowledged he made the comment about Spurlock. When Vardman told the group to “shut up,” he did so in an “aggressive and disrespectful” way, that was “rude and loud.” Vardman told the group if they were not quiet, they would have to leave.
Mincey and Vardman argued about her behavior and Spurlock’s enforcement of hospital policies. Another visitor in the ER waiting room, Keith Wright, videoed some of the encounter on his phone. On the video, the following exchange can be heard:
Vardman: Are we good?
Mincey: Sit down and stop talking to me.
Vardman: Okay. Stand up . . . give the kid to someone . . . stand up.
Mincey: No, I’m not.
Vardman: Do you want to go to jail?
Mincey: Do you?
Vardman: You want to go to jail? Stand up . . .
Mincey: [Inaudible] not bothering you . . .
Vardman: You’re not going to do that . . . you’re not going to do this . . . no you’re not . . . what you’re doing is you’re causing a scene.
Mincey: No . . . I didn’t say anything . . .
Vardman: You are . . . She [Spurlock] is not being rude . . . listen . . . listen . . . what she’s [inaudible] is . . . she’s [inaudible] policy and procedures . . . there’s a reason for it.
After this first exchange, Vardman returned to the front desk. He again reminded the group he would have to ask them to leave if they did not sit quietly. In response, Mincey gave Vardman a dismissive hand gesture, which Mincey calls the “whatever hand.” Vardman then left the desk, and walked back toward Mincey and the group. Mincey testified Vardman stated she needed to leave or she would be arrested. The ER Security Video shows Vardman standing in front of Mincey, who is still holding one of the twins, talking and motioning with his hands. Vardman is then seen walking away and speaking into his radio. This call was recorded. Vardman states “Code 3” and asks for a transport. A “Code 3” is a request for a backup officer. After the radio call, Vardman returned to speak with Mincey. At this point, Wright began filming again.
Mincey: I did not say anything to you . . .
Vardman: You’ve been asked to leave . . . if you don’t leave, you’re going to jail.
Mincey: Let’s go . . . racist ass motherfuckers . . . I get tired of this shit . . .
Vardman: Not . . . now you’re under arrest
Mincey: I’m not . . . I’m not [inaudible]
Vardman: Ma’am stop . . .
Mincey: Do not touch me!
Vardman: Get the child . . .
Mincey: Don’t touch me!
Vardman: Give the child . . . give the child . . . oh no, no, no that was too late . . . too late . . . you’re jerking the child around ma’am . . . stop . . . you know what you’re doing . . .
While holding the child, Mincey physically resisted Vardman’s efforts to arrest her, pushing him as she was leaving. Sonnier, who was also holding a child, placed herself between Vardman and Mincey, and did not comply with Vardman’s order to “get out of the way,” making it more difficult for Vardman to arrest Mincey. Sonnier also pushed Vardman as he attempted to separate her from Mincey. Throughout the struggle, Vardman directed Mincey and Sonnier to stop using the children to interfere with their arrests. Her resistance resulted in a cut to Vardman’s head when Mincey knocked off his sunglasses. Once Mincey and Sonnier finally released the children, Vardman arrested Mincey and Sonnier.
Mincey was charged with misdemeanor disorderly conduct in violation of O.C.G.A. § 16-11-39, misdemeanor criminal trespass in violation of O.C.G.A. § 16-7-21, misdemeanor reckless conduct in violation of O.C.G.A. § 16-5-60, and felony obstruction of an officer in violation of O.C.G.A. § 16-10-24(b). Sonnier was charged with misdemeanor reckless conduct and felony obstruction of an officer. At the conclusion of a jury trial, Mincey and Sonnier were acquitted on all charges.[ii]
Mincey sued Officer Vardman for false arrest under the Fourth Amendment. The district court granted summary judgment in favor of the officer and dismissed the suit. Mincey appealed to the Eleventh Circuit Court of Appeals.
The court of appeals first examined the legal principles relevant to a false arrest case. The court stated
In the context of an arrest, probable cause exists “when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish ‘a probability or substantial chance of criminal activity.'” Washington v. Howard, 25 F.4th 891, 898 (11th Cir. 2022) (quoting District of Columbia v. Wesby, 583 U.S. 48, 57, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018)). In assessing whether there was probable cause for an arrest, we “ask whether a reasonable officer could conclude that there was a substantial chance of criminal activity.” Id. at 902 (quotation marks and alteration omitted). “Probable cause does not require conclusive evidence and is not a high bar.” Id. at 899 (quotation marks omitted).
An officer need not have actual probable cause, but only arguable probable cause, to receive qualified immunity. Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). “Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [officer] could have believed that probable cause existed to arrest.” Id. (quotation marks omitted). “Showing arguable probable cause does not . . . require proving every element of a crime.” Id.[iii]
Simply put, probable cause will defeat a claim of false arrest under the Fourth Amendment. Additionally, an officer does not need to have actual probable cause to receive qualified immunity in a false arrest lawsuit. Rather, the officer only needs to have “arguable probable cause,” which occurs when another reasonable officer in the same situation could have believed probable cause was present.
The court of appeals then examined the Georgia statutes for which Mincey was charged to determine if actual or arguable probable cause was present for each charge.
The court first examined the state disorderly conduct statute, OCGA § 16-11-39, which was the initial charge for which Officer Vardman initiated Mincey’s arrest. The statute states, in pertinent part, as follows:
(a) A person commits the offense of disorderly conduct when such person commits any of the following:
(3) Without provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstance will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words”; or
(4) Without provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.
The court then examined the relevant facts of the incident with Mincey, noting that they must view the totality of the circumstances, rather than individual facts in isolation. Mincey argued that the officer lacked actual or arguable probable cause to arrest her when she called Officer Vardman a “racist ass motherfucker.” The court of appeals stated
Mincey’s vulgar language, without more, would not constitute a violation of the statute. See In re L.E.N., 299 Ga. App. 133, 682 S.E.2d 156, 158 (Ga. Ct. App. 2009) State law no longer criminalizes the use of unprovoked language threatening an immediate breach of peace, which is obscene, vulgar, or profane, that is directed to a person older than 14 years of age, unless such language also constitutes ‘fighting words.‘” (quotation marks omitted)). Further,
the fighting-words exception to constitutionally protected speech requires a narrower application in cases involving words addressed to a police officer. This is because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.[iv]
Thus, vulgar or insulting speech to a police officer does not, by itself, constitute disorderly conduct. The courts require officers to exercise a “higher degree of restraint” than the general public. However, the court must look at the totality of the circumstance that took place as Mincey uttered the vulgar language to the officer. First, the argument between Mincey and the officer occurred in the ER waiting room, where Mincey’s family, as well as other unrelated persons were present. Second, Mincey continued to hold the 10-month-old child, despite being told by Officer Vardman to hand the baby to a family member. Third, Mincey’s vulgar language occurred in the presence of two children under 14-years-old. Lastly, Mincey used the language in the presence of others, her family and others in the ER, which could threaten a breach of the peace.
The court of appeals then concluded that
Mincey’s actions of (1) arguing with Vardman in front of a group of her family, (2) while holding her 10-month-old grandson, (3) in an ER waiting room, and (4) using profane language in the presence of children under 14 years old, could have indicated to an objectively reasonable officer at the scene that Vardman’s conduct was disorderly, even if those circumstances were ultimately insufficient to prove a violation of § 16-11-39(a)(3)-(4).[v]
As such, the court of appeals held that Officer Vardman had arguable probable cause to believe that Mincey violated the Georgia disorderly conduct statute, and he was therefore entitled to qualified immunity.
The court of appeals also examined whether Officer Vardman had probable cause or arguable probable cause to arrest Mincey for Reckless Conduct and Obstruction, the other charges for which he arrested Mincey.
The court of appeals first examined the relevant statutes and stated
Georgia’s reckless conduct statute provides, “[a] person who . . . endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that [her actions] will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.” O.C.G.A. § 16-5-60(b). Georgia’s obstruction statute provides, “[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer . . . in the lawful discharge of his . . . duties by offering or doing violence to the person of such officer . . . shall be guilty of a felony.” O.C.G.A. § 16-10-24(b).
The court of appeals examined the facts related to these charges. First, it was noted that Officer Vardman was acting in the lawful discharge of his official duties, as required by the Obstruction statute, when he attempted to arrest Mincey for Disorderly Conduct, a crime for which he had arguable probable cause. As he attempted to arrest Mincey for Disorderly Conduct, Mincey and Sonnier each held a 10-month-old baby while both Mincey and Sonnier physically interfered with Officer Vardman’s attempt to arrest Mincey. The court of appeals held that their conduct provided Officer Vardman probable cause to believe each committed Obstruction for interfering and Reckless Conduct for doing so while holding babies.
Therefore, the court of appeals affirmed the grant of qualified immunity for Officer Vardman.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 23-11437 (11th Cir. February 21, 2024 Non-Argument)
[ii] Id. at 2-6
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 8-9 (emphasis added)
[v] Id. at 10-11
