On December 14, 2023, the Eleventh Circuit Court of Appeals decided on Graham v. Luke[i], which serves as an excellent review of the law related to malicious prosecution. The relevant facts of Graham are as follows:

After a customer handed store clerk Michelle Kilgore a counterfeit check, police sent Inspector Wayne Luke to investigate. The check was made out to Kenneth Anthony Graham. Luke put that name into the police database and found Graham’s driver’s license photo. He showed it to Kilgore who confirmed that Graham was the individual who presented the fraudulent check.

On this basis, Luke obtained a warrant for Graham’s arrest. Several months later, another officer encountered Graham during a traffic incident and, after running his license number, arrested him pursuant to the warrant. The officer strip-searched, photographed, and booked Graham before detaining him for 10 days.[ii]

Graham subsequently filed suit against Inspector Luke for unlawful search and seizure, malicious prosecution under both the Fourth Amendment and state law and intentional infliction of emotional distress.  The district court granted Inspector Luke qualified immunity on the Fourth Amendment claims, official immunity on the state law claims and summary judgment on the intentional infliction of emotional distress claim.  Graham appealed to the Eleventh Circuit Court of Appeals.

The Eleventh Circuit discussed the standard for qualified immunity related to the false arrest and malicious prosecution claims.  The court stated

To receive qualified immunity, Luke didn’t even need to have actual probable cause, “but [rather] only ‘arguable probable cause,'”—”i.e., the facts and circumstances must be such that the officer reasonably could have believed that probable cause existed.” Edger v. McCabe, 84 F.4th 1230, 1236 (11th Cir. 2023).

What distinguishes actual from “arguable” probable cause? “Probable cause exists if the totality of the circumstances known to the officers could persuade a reasonable officer that there is a ‘substantial chance of criminal activity’ by the person who is arrested.” Davis v. City of Apopka, 78 F.4th 1326, 1334 (11th Cir. 2023) (quoting District of Columbia v. Wesby, 583 U.S. 48, 57, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018)). In this Circuit, probable cause requires “only a probability or substantial chance” of criminal activity and “does not require anything close to conclusive proof . . . or even a finding made by a preponderance of the evidence.” Paez v. Mulvey, 915 F.3d 1276, 1286 (11th Cir. 2019). It need only be “reasonable to conclude from the totality of the circumstances that a crime was committed.” Henley v. Millsap, No. 21-12231, 2022 U.S. App. LEXIS 23818, 2022 WL 3654846, at *2 (11th Cir. Aug. 25, 2022) “Arguable probable cause,” not surprisingly, is an even lower threshold. Arguable probable cause exists if “a reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests.” See Wesby, 583 U.S. at 68.[iii]

Simply put, if another reasonable officer faced with the same facts could believe there was actual probable cause, then the officer is entitled to qualified immunity even if it is later determined that actual probable cause was not present.  This is called “arguable probable cause.”

The court of appeals then examined whether actual probable cause or arguable probable cause was present for Inspector Luke to obtain an arrest warrant for Graham.  The court noted that (1) the store clerk provided the inspector with a fraudulent check made out to Kenneth Anthony Graham, (2) the inspector performed a driver’s license check for Graham and obtained his photograph, and (3) from the photograph the clerk positively identified Graham as the person that presented the fraudulent check.  The court of appeals held that this provided Inspector Luke with “actual probable cause to flag Graham for arrest.”[iv]

Graham argued that the inspector could have determined that Graham was not the correct suspect if he had also obtained the store video footage of the person who presented the check; however, the inspector did not request or review that video.  In response, the court of appeals stated

Because the totality of the circumstances presented an adequate basis to conclude that a crime had occurred, [Inspector] Luke was not required to sift through conflicting evidence. See Huebner v. Bradshaw, 935 F.3d 1183, 1188 (11th Cir. 2019)[v]

Thus, because there was probable cause to obtain the arrest warrant, qualified immunity was appropriate for the unlawful search and seizure claims under the Fourth Amendment.

The court of appeals next examined Graham’s Fourth Amendment malicious prosecution claim.  In order to prevail on the malicious prosecution claim, Graham must show that Inspector Luke acted “with malice and without probable cause” in the prosecution of his criminal case.[vi]  The court of appeals noted that, for the reasons discussed above, actual probable cause was present to obtain an arrest warrant for Graham.  Further, the court noted that the record did not contain any evidence to support that the inspector acted with “malice.”

Therefore, Inspector Luke was also entitled to qualified immunity on this claim.

The court of appeals also examined Graham’s state law claim of malicious prosecution.  The court stated

To establish a claim for malicious prosecution under Georgia law, “a plaintiff must show that the defendant acted both without probable cause and maliciously.” Stephens v. Zimmerman, 333 Ga. App. 586, 774 S.E.2d 811, 815 (Ga. Ct. App. 2015) (quoting Anderson v. Cobb, 258 Ga. App. 159, 573 S.E.2d 417, 419 (Ga. Ct. App. 2002) (alteration adopted)). Malice may be inferred by a total lack of probable cause. Id.[vii]

The court of appeals noted that,

Under Georgia law, official immunity “protects an officer from personal liability arising from his performance of ‘official functions’ as long as the officer did not act with ‘actual malice’ or ‘actual intent to cause injury.'” Gates v. Khokhar, 884 F.3d 1290, 1304 (11th Cir. 2018) (quoting Ga. Const. art. I, § 2, para. IX(d)). Official immunity “applies to an officer’s discretionary actions taken within the scope of [his] official authority.” Id. at 1304 (quotation marks and citation omitted). An officer acts within his discretionary authority when investigating a case, obtaining warrants, and executing those warrants. Marshall v. Browning, 310 Ga. App. 64, 712 S.E.2d 71, 74 (Ga. Ct. App. 2011).[viii]

Thus, when an officer is acting within his discretionary authority, such as conducting an investigation, obtaining a warrant or making an arrest, he is entitled to official immunity unless the officer acted with “actual malice” or “actual intent to cause injury.”  Further, the court explained what is meant by “actual malice” or “actual intent to cause injury.”  Specifically, the court stated

In the context of official immunity, actual malice requires a deliberate intention to do wrong. Bateast v. DeKalb Cnty., 258 Ga. App. 131, 572 S.E.2d 756, 758 (Ga. Ct. App. 2002). Ill will alone cannot establish actual malice. Stephens, 774 S.E.2d at 816. A deliberate intention to do wrong means the intent to cause the harm suffered by the plaintiff. Murphy v. Bajjani, 282 Ga. 197, 647 S.E. 2d. 54, 60 (Ga. Ct. App. 2007). Moreover, an actual intent to cause injury requires an actual intent to harm the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124, 125 (Ga. 1999).[ix]

Simply put, in Georgia, an officer is entitled to official immunity from state law claims unless he deliberately intended to do wrong.

The court of appeals then noted that Graham presented no evidence that showed that the inspector acted with a deliberate intent to do wrong or actual malice.

Further, as previously discussed, the court already held that there was actual probable cause to obtain an arrest warrant in Graham’s case.  The court further stated

Although Graham argues that Luke misstated the information in the arrest affidavit and “knew” that Graham did not commit the charged crimes, he did not present any evidence showing that Luke intended to cause him harm. Murphy, 647 S.E. 2d. at 60; Kidd, 518 S.E.2d at 125.[x]

Thus, Inspector Luke was entitled to official immunity on the state law claims because Graham was unable to show that Inspector Luke acted with actual malice and because Luke had probable cause to obtain the warrant.

Lastly, the court of appeals examined Graham’s intentional infliction of emotional distress claim under Georgia law.  Regarding this claim, the court stated

A Georgia intentional-infliction-of-emotional-distress plaintiff must show that: “(1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.” Mayorga v. Benton, 364 Ga. App. 665, 875 S.E.2d 908, 913 (Ga. Ct. App. 2022). The conduct must be “so extreme in degree, as to go beyond all possible bounds of decency,” and whether the claim rises to the requisite level of outrageousness is a question of law. Id. Additionally, “[t]o demonstrate that the emotional distress [he] suffered was severe, a plaintiff must show, at the very least, that physical and/or mental manifestations of that distress required him to seek medical or psychological treatment.” Howerton v. Harbin Clinic, LLC, 333 Ga. App. 191, 776 S.E.2d 288, 301 (Ga. Ct. App. 2015).[xi]

Here, the court held that the embarrassment of the arrest and ten-day detention did not meet the required level of “outrageousness” to satisfy the elements of the claim.  Further, since Graham did not require psychological or medical treatment, he did not satisfy the severity requirement.

Therefore, the court of appeal affirmed the grant of summary judgment on this claim.

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. 23-10396 (11th Cir. Decided December 14, 2023 Non-Argument Calendar)

[ii] Id. at 2-3

[iii] Id. at 3-4 (emphasis added)

[iv] Id. at 4

[v] Id. at 5 (emphasis added)

[vi] Id.

[vii] Id. at 6 (emphasis added)

[viii] Id. at 5-6 (emphasis added)

[ix] Id. at 6 (emphasis added)

[x] Id. at 7

[xi] Id. at 7-8 (emphasis added)