©2018 Brian S. Batterton, J.D., Legal & Liability Risk Management Institute (www.LLRMI.com)

On March 13, 2018, the Eleventh Circuit Court of Appeals decided Gates v. Khokhar et al.[i], in which the court discussed whether officers who arrested a protester for wearing a mask were entitled to qualified and official immunity from suit.  The case serves as instructive regarding the Georgia anti-mask law. The relevant facts of Gates, taken directly from the case, are as follows:

On November 26, 2014, Plaintiff participated in a march 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.[ii]

Gates sued the involved officers for violating his rights under the Fourth Amendment by arresting him without probable cause or arguable probable cause, which, in turn, caused a violation of his rights under the First Amendment; additionally, he sued under state law for assault and battery and malicious prosecution.  The officers filed motions for qualified immunity (under the federal claims) and official immunity (under the state claims).  The district court denied the officer’s motions for immunity, and the officers appealed to the Eleventh Circuit Court of Appeals.


The Federal Claims

The court of appeals first addressed the federal constitutional claims.  The court stated

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 (2011).[iii]

Simply put, when a government official, such as a police officer, is sued under federal law, the officer must first show that he was engaged in his discretionary authority, which means engaged in an activity where he had the ability to choose between various courses of action.  Once this is shown, in order to defeat the officer’s qualified immunity from suit, the burden shifts to the plaintiff to show (1) that the officer did in fact violate a constitutional right, and (2) the constitutional right at issue was clearly established at the time of the violations such that another reasonable officer in the same situation would have known he was violating the right.  In the Eleventh Circuit, clearly established law is typically found in precedent from the Supreme Court, the Eleventh Circuit Court of Appeals, or the highest court in the state in which the incident occurred.  The facts must be similar enough to provide fair warning to the officer regarding the unconstitutionality of the conduct.

The Eleventh Circuit first set out to examine the federal false arrest claim under the Fourth Amendment.  The plaintiff alleged that he was arrested without probable cause, in violation of the Fourth Amendment, and that because he was arrested while engaged in the exercise of his rights under the First Amendment, the arrest also violated his rights under the First Amendment.

The court noted that, if his Fourth Amendment rights were violated, this could also violate his First Amendment rights.  However, the court also noted that the opposite is also true, particularly, if the arrest did not violate the Fourth Amendment then it also did not violate the First Amendment. The court described the legal principles involved and stated

It is true that a warrantless arrest lacking probable cause violates the Constitution, and such an arrest can therefore potentially underpin a § 1983 claim. Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). The converse is also true, which means that “the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.” Id. See also Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002) (observing that “[w]hatever the officers’ motivation . . . the existence of probable cause to arrest [the plaintiff] defeats [a] First Amendment claim” arising out of the arrest);

Probable cause exists where the facts within the collective knowledge of law enforcement officials, derived from reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that a criminal offense has been or is being committed.” Brown, 608 F.3d at 734. It requires only “a probability or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Thus, “innocent behavior frequently will provide the basis for a showing of probable cause.” Id. Indeed, “[t]he Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 145 (1979).

Even without actual probable cause, however, a police officer is entitled to qualified immunity if he had only “arguable” probable cause to arrest the plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). Moreover, when an officer has arguable probable cause to arrest, he is entitled to qualified immunity both from Fourth Amendment claims for false arrest and from First Amendment claims stemming from the arrest. See Redd, 140 F.3d at 1383-84 (because officers had arguable probable cause to arrest plaintiff (a minister preaching loudly on the sidewalk) for disorderly conduct, the officers were entitled to qualified immunity from both plaintiff’s First and Fourth Amendment claims).[iv] [emphasis added]

Thus, the court noted that even if actual probable cause for Gates’ arrest was not present, as long as arguable probable cause was present, in other words, as long as a reasonable officer faced with the same facts could have believed that probable cause was present, the officers in this case would satisfy the first prong of the test to determine if they were entitled to qualified immunity.    The rationale for this rule is

[T]hat an officer who acts reasonably should not be held personally liable merely because it appears, in hindsight, that he might have made a mistake. The concept of arguable probable cause therefore allows for the possibility that an officer might reasonably but mistakenly conclude that probable cause is present.[v]

The court next examined the Georgia statute at issue in Gates’ case.  The court stated

The Georgia mask statute makes it a misdemeanor for a person to “wear[] a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” while he is “upon any public way or public property.” O.C.G.A. § 16-11-38(a). The statute includes exceptions for:

  1. A person wearing a traditional holiday costume on the occasion of the holiday;

  2. A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;

  3. A person using a mask in a theatrical production including use in Mardi Gras celebrations and masquerade balls; or

  4. A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.

Id. § 16-11-38(b).

Further, the court noted that the Supreme Court of Georgia has two decisions that place additional limitations on the statute.    First, in the State v. Miller[vi], a Klu Klux Klan member was wearing the traditional KKK mask.  Miller challenged the legality of the statute. The court held that a person could only be convicted under the anti-mask statute if the State also proves, in addition to the statutory elements, (1) the mask is worn with the intent to conceal the person’s identity, and (2) the wear knew or reasonably should have known that wearing the mask would “provoke a reasonable apprehension of intimidation, threats, or violence.”[vii]

The court then held that the statute is constitutional, subject to the above additional requirements.

Additionally, in the State v. Daniels,[viii] the Supreme Court of Georgia reversed the conviction of a man who was wearing a football helmet and wrestling mask while talking to children in the street during the daytime.  The court reasoned that the State did not prove that Daniels intended to conceal his identity and that his conduct would intimidate.  Thus, the State did not meet the additional requirements imposed by Miller.

The court then applied the facts of Gates’ case to the additional requirements from Miller and stated

Taking into account the statutory elements of O.C.G.A. § 16-11-38, as interpreted by the Georgia Supreme Court in Miller and Daniels, we conclude that Defendants had probable cause to arrest Plaintiff for violating the mask statute under the circumstances alleged in the complaint. Construed in Plaintiff’s favor, the facts within the collective knowledge of Defendant officers were as follows. Defendant officers were on the public streets of Atlanta as a “crowd” of demonstrators marched peacefully in protest of the grand jury decision in the Ferguson, Missouri police shooting case. Some of the protestors— including Plaintiff—were wearing “V for Vendetta” masks. The masks covered the entire face and, thus, concealed the identity of the wearer. At about 9:15 p.m., the police began ordering the protestors to disperse. Officers also issued “repeated orders” over loud speakers for protestors to remove their masks or be subject to arrest. At about 10:00 p.m., a “swarm of officers in full riot gear pushed their way into the crowd” of protestors. Officer Khokar then arrested Plaintiff, who was still wearing his mask as he continued to march on public property.

Plaintiff alleges no facts that would support the application of any of the statutory exceptions to the prohibition on mask-wearing. That is, Plaintiff was not wearing the mask as part of a traditional holiday costume or theatrical production, for the purpose of ensuring his safety while engaged in a particular trade, profession, or sporting activity, or during an emergency or emergency drill. See O.C.G.A. § 16-11-38(b). Given these facts, an objectively reasonable officer at the scene could have believed that probable cause existed to arrest Plaintiff for violating the mask statute. See Lee, 284 F.3d at 1195.[ix] [emphasis added]

Gates argued that the officers did not have arguable probable cause because the arresting officers did not prove his intent in wearing the mask.  However, the court of appeals noted that they do not require an officer to prove every element of a crime because that would “negate the concept of probable cause and transform arresting officers into prosecutors.”[x]  The court also stated “no police officer can truly know another person’s subjective intent.”[xi]

The court of appeals also stated that is very significant that that police repeatedly asked the mask wearers to remove their masks and Gates refused to do so.  The court said that this reasonably perceived defiance of a lawful order could infer to a reasonable police officer that the plaintiff intended to intimidate others, including the police.  This is the case even though the plaintiff now contended that he did not hear the orders to remove the mask.  It was still reasonable for the police to believe that Gates heard the order as it was given over a loudspeaker multiple times.

The court also looked at the origin and history of the “Guy Fawkes” mask.  According to the complaint, Guy Fawkes was a British insurgent, who in 1605, tried to blow up the British parliament.  Further, this mask was worn in a novel and film called “V for Vendetta,” where the lead character is a vigilante that attempts a violent overthrow of the government.  When the court also considered this fact, they stated that Gates’ wearing and refusing to remove the mask

[B]olstered an objectively reasonable officer’s determination that, by his insistence on wearing this mask, Plaintiff intended to threaten and intimidate the police.[xii] [emphasis added]

Therefore, the court ultimately held that, at a minimum, the officers had arguable probable cause to arrest Gates for a violation of the anti-mask statute.

The court then set out to examine the second prong of the qualified immunity analysis, which is whether the law was clearly established.

The district court, when it denied qualified immunity for the officers, simply reasoned that it is “clearly established” that an arrest without probable cause or arguable probable cause violates the Fourth Amendment.  However, the court of appeals stated that the district court applied an over-general approach to this prong.

The court of appeals, in articulating the correct analysis, stated

[T]he clearly established law inquiry “must be particularized to the facts of the case.” White, 137 S. Ct. at 552 (internal quotation marks omitted).

Reframing the analysis to conform with the direction of the Supreme Court, the dispositive question is whether it was already clearly established, as a matter of law, that at the time of Plaintiff’s arrest, an objective officer could not have concluded reasonably that probable cause existed to arrest Plaintiff under the particular circumstances Defendants confronted. See Mullenix, 136 S. Ct. at 308 (“The dispositive question is whether the violative nature of particular conduct is clearly established.” (internal quotation marks omitted)). Again, resolution of the clearly-established test does not depend on whether a judge might decide later that probable cause was lacking in fact. Instead, the test asks whether already existing law was so clear that, given the specific facts facing this particular officer, one must conclude that “every reasonable official would have understood that what he is doing violates” the Constitutional right at issue. al-Kidd, 563 U.S. at 741.[xiii] [emphasis added]

The court then noted that if judges can disagree about the law regarding an issue such as this, then this “is itself evidence that a right is insufficiently clearly established for the purpose of denying qualified immunity.”[xiv]  Additionally, the court noted that the plaintiff did not cite, nor did the court of appeals find, any existing court precedent that would place the alleged unlawfulness of the officer’s specific conduct under facts similar to this case “beyond debate.”

The court of appeals then held that the officers did not violate a “clearly established right” and therefore the defendant officers were entitled to qualified immunity on the Fourth Amendment claim.  This also disposes of the First Amendment claim.  The district court was therefore reversed.


The State Claims

The court also examined whether the officers were entitled to “official immunity” under Georgia law for the state torts alleged (assault and battery, false arrest, malicious prosecution).  Official immunity from suit is granted to government officials, such as police officers, when they are engaged in a (1) discretionary function within the scope of their official authority and (2) do not act with “actual malice.”  In Gate’s case, the officers were clearly acting in their discretionary and official authority. Thus, the issue was whether they acted with “actual malice” such that they would not be entitled to official immunity.

Regarding actual malice, the court stated

The Georgia Supreme Court has defined actual malice in this context to mean a “deliberate intention to do wrong.” Id. As such, actual malice is not established merely by showing that the defendant acted with “ill will.” Id. Nor does actual malice encompass merely “the reckless disregard for the rights and safety of others.West v. Davis, 767 F.3d 1063, 1073 (11th Cir. 2014) (internal quotation marks omitted). Likewise, the phrase “actual intent to cause injury”—as used in Georgia’s official immunity provision—means “an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury.” Id.[xv]  [emphasis added]

The court then examined the facts and noted that, after being repeatedly ordering Gates to remove his mask and him failing to comply, the police, in riot gear, approached him, pushed or pulled him, arrested and handcuffed him, transported him to the precinct and the jail, and made him wait approximately 12 hours without food, water, or sleep to do all this.  The court stated

Construing these allegations as liberally as possible, together with our conclusion that arguable probable cause existed, the most that can be made of them is that Plaintiff was arrested and subjected to the routine inconveniences that attend any arrest. These facts are obviously insufficient to show actual malice or intent to injure.[xvi] [emphasis added]

As such, the court of appeals reversed the district denial of official immunity for the defendant officer and held the officers were entitled to official immunity.



[i] No. 16-15118 (11th Cir. Decided March 13, 2018)

[ii] Id. at 3-5

[iii] Id. at 6-7

[iv] Id. at 10-11

[v] Id. at 12

[vi] 260 Ga 669 (1990)

[vii] Id. at 674

[viii] 264 Ga. 460 (1994)

[ix] Gates at 15-16

[x] Id. at 17

[xi] Id.

[xii] Id. at 21

[xiii] Id. at 23-24

[xiv] Id. at 24

[xv] Id. at 26

[xvi] Id. at 27

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