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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10867
Non-Argument Calendar
____________________
KHANAY YANCEY,
Plaintiff-Appellee,
versus
GREGORY TILLMAN,
in his individual capacity as an officer for the Clayton County Po-
lice Department,
Defendant-Appellant,
CLAYTON COUNTY, GEORGIA,
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2 Opinion of the Court 22-10867
Defendant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03269-JPB
____________________
Before JILL PRYOR, BRANCH, and BLACK, Circuit Judges.
PER CURIAM:
According to Khanay Yancey’s amended complaint, Clayton
County Police Officer Gregory Tillman broke down Yancey’s front
door while responding to a civil matter, forced her to the ground,
and roughly handcuffed her despite Yancey telling Tillman she
would wait inside her home until his supervisor arrived and warn-
ing him of her medical conditions. Tillman remained on top of
Yancey with a knee on her back, and Yancey had a seizure and still
suffers from pain. She sues Tillman under
42 U.S.C. § 1983 and
Georgia law. Accepting her allegations as true, as we must at the
motion to dismiss stage,1 we affirm the denial of qualified
1 “When reviewing the denial of a qualified immunity defense asserted in a
motion to dismiss, appellate review is limited to the four corners of the com-
plaint.” Corbitt v. Vickers,
929 F.3d 1304, 1311 (11th Cir. 2019) (quotation
marks omitted). We accept the facts alleged in the complaint as true and draw
all reasonable inferences in the plaintiff’s favor.
Id.
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22-10867 Opinion of the Court 3
immunity on three of the § 1983 claims and of official immunity on
the state law claims, but we reverse the denial of qualified immun-
ity on the federal malicious prosecution claim.
I. BACKGROUND
Yancey’s amended complaint alleges the following. In July
2019, Yancey invited a friend and her daughter to temporarily stay
at her home. Yancey reluctantly allowed her friend’s boyfriend,
Kevin Clark, to stay a few days. Ten days later, Yancey’s friend and
Clark had a disagreement. Yancey, no longer feeling safe with
Clark in her home, told him to leave, and he left on July 14, alleg-
edly taking all his belongings with him.
The next morning, Clark arrived unannounced, and Yancey
refused to let him in her home. Clark called the police and reported
he had been staying at the residence and was being denied access
to retrieve certain belongings. Tillman responded to the call early
that afternoon, and Clark told Tillman he had left a TV stand and
a few other small items at the residence.
Tillman knocked on Yancey’s door, and Yancey, “admit-
tedly agitated,” opened the door. She never left her home, and she
informed Tillman that Clark had removed his belongings the prior
day and was no longer welcome. Tillman shouted at Yancey to
“stop” and stated, “[I]f you’re not going to listen, I’m just going to
do what I need to do.” Yancey told Tillman he was “out of line”
and asked her minor son to call the Clayton County Police Depart-
ment (CCPD) to have a supervisor come to her home. Tillman
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4 Opinion of the Court 22-10867
refused to provide his name and badge number. While on the
phone, Yancey explained to Tillman that Clark was not a lawful
resident, and Tillman responded that Clark “can come and go as
[he] please[s] until [he] is properly evicted.”
Yancey informed Tillman a supervisor was en route to her
home and that she was closing the door until the supervisor ar-
rived. She closed the door despite Tillman’s attempt to hold it
open. From behind the closed door, Yancey told Tillman he would
stand outside her door until his supervisor came.
Tillman did not tell Yancey to open the door. Without
warning, he broke Yancey’s door off its frame, pulled her arms be-
hind her back, swept her legs, knocked her to the ground, and
placed a knee on her back. He roughly handcuffed her using exces-
sively tight restraints, which he was told were causing her pain and
injury. Yancey’s son repeatedly told Tillman that Yancey suffers
from “a lot of health problems,” and Yancey advised she has a sei-
zure disorder and a restrictive lung disease. Still, Tillman remained
on top of a handcuffed and prone Yancey with his knee on her back.
Yancey began to hyperventilate, her vision became blurry, and she
had a seizure.
Yancey’s handcuffs were finally removed when the police
supervisor arrived, and emergency medical services came to care
for Yancey. She declined transportation to the hospital because
there were children at the home under her care, but she sought
medical treatment later that day.
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Yancey also alleges, based a conversation captured on a body
camera, the supervisor asked Tillman why he kicked the door
down to which Tillman replied, “[W]e had the charge of criminal
trespass.” When the supervisor explained that only meant Clark
could get in, Tillman stated he feared for his safety because he
“didn’t know what was behind the door.” Tillman also stated he
told Yancey to open her door before breaking it down.
Yancey was informed she would receive citations for misde-
meanor obstruction and criminal trespass-family violence in lieu of
custodial arrest. These charges were dropped or dismissed shortly
after her arrest.
Yancey alleges the CCPD Internal Affairs Board determined
Tillman incorrectly believed a crime of Criminal Trespass-Family
Violence had occurred when the matter was purely civil. The
Board found Tillman violated departmental policy when he made
forced entry into the residence and arrested her. She alleges the
Clayton County Chief of Police determined Tillman did not have
probable cause for a family violence charge against Yancey nor did
he have probable cause to arrest Yancey based on the information
he received. The police chief also concluded Tillman’s decision to
force entry based on exigent circumstances was unfounded.
Yancey filed suit in state court, which was removed to fed-
eral court. In relevant part, Yancey’s amended complaint asserts
claims under § 1983 for (1) unlawful entry, (2) excessive force,
(3) false arrest, and (4) malicious prosecution. First, she asserts Till-
man forcibly entered her home without a warrant, without her
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consent, and without the presence of exigent circumstances that
would permit warrantless entry. Second, she asserts a reasonable
officer in Tillman’s position would have known forcing her to the
ground, placing a knee on her back, and roughly placing her into
excessively tight handcuffs was not a reasonable application of
force. Third, she asserts Tillman did not have probable cause to
arrest her or cite her in lieu of custodial arrest. Fourth, she asserts
Tillman initiated a criminal prosecution against her to manufacture
a justification for his other illegal actions when he knew or should
have known there was no probable cause to believe she had com-
mitted a crime. Yancey also asserts state law claims for assault, bat-
tery, intentional infliction of emotional distress, malicious arrest,
malicious prosecution, and false imprisonment. She asserts Till-
man’s conduct was reckless, willful, wanton, malicious, and unlaw-
ful.
Tillman moved to dismiss Yancey’s complaint, asserting he
was entitled to qualified immunity on Yancey’s § 1983 claims and
to official immunity on her state law claims. The district court de-
nied the motion to dismiss, and Tillman appeals from that denial.
II. DISCUSSION
Tillman contends the district court erred by being too gen-
eral in its application of the clearly-established-law prong of the
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22-10867 Opinion of the Court 7
qualified immunity analysis and by applying an incorrect standard
of malice to the official immunity analysis.2
A. Qualified Immunity on Federal Claims
Tillman is not entitled to qualified immunity on the unlaw-
ful entry, false arrest, and excessive force claims. A right may be
clearly established for qualified immunity purposes where an of-
ficer’s conduct was “so egregious that a constitutional right was
clearly violated, even in the total absence of case law.” Lewis v.
City of W. Palm Beach,
561 F.3d 1288, 1291-92 (11th Cir. 2009).
“Unless a warrant is obtained or an exigency exists, any
physical invasion of the structure of the home, by even a fraction
of an inch, [is] too much.” Bailey v. Swindell,
940 F.3d 1295, 1302
(11th Cir. 2019) (quotation marks omitted); see also Payton v. New
York,
445 U.S. 573, 585 (1980). Exceptions are few and carefully
drawn. McClish v. Nugent,
483 F.3d 1231, 1240 (11th Cir. 2007).
Tillman undisputedly did not have a warrant or consent to enter
Yancey’s home, and his assertion there were exigent circumstances
falls flat. Yancey never left her home, and, while agitated, nothing
indicates she was aggressive, threatening, or a flight risk. Tillman
2 We have jurisdiction to review the denial of a motion to dismiss based on
qualified immunity and Georgia official immunity. Jones v. Fransen,
857 F.3d
843, 849 (11th Cir. 2017). To avoid confusion, we will refer to Georgia’s doc-
trine as “official immunity” although it is also sometimes called “qualified im-
munity.” See Reed v. DeKalb Cty.,
589 S.E.2d 584, 587 (Ga. Ct. App. 2003).
Our review of the district court’s denial of these types of immunity is de novo.
Jones, 857 F.3d at 850.
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had fair warning his forcible entry and arrest were unlawful in 2019.
See Bailey, 940 F.3d at 1303; McClish,
483 F.3d at 1248.
Similarly, we have repeatedly held a police officer is denied
qualified immunity if he “uses gratuitous and excessive force
against a suspect who is under control, not resisting, and obeying
commands.” Saunders v. Duke,
766 F.3d 1262, 1265 (11th Cir.
2014) (collecting cases). Taking Yancey’s allegations as true, Till-
man’s actions were so plainly unnecessary and disproportionate to
restrain a woman who merely retreated into her home while wait-
ing for a CCPD supervisor to arrive that “no reasonable officer
could have had a mistaken understanding as to whether [the] par-
ticular amount of force [was] legal in the circumstances.” Lee v.
Ferraro,
284 F.3d 1188, 1200 (11th Cir. 2002) (quotation marks
omitted).
However, we reverse the district court’s denial of Tillman’s
motion to dismiss as to Yancey’s § 1983 malicious prosecution
claim. Even if Yancey stated a claim for the tort of malicious pros-
ecution,3 she failed to allege she was seized in relation to the
3 The traditional elements of a malicious prosecution claim are (1) an action
or proceeding instituted without probable cause; (2) where “the ‘motive in
instituting’ the suit ‘was malicious’”; and (3) in which there was an acquittal
or discharge of the accusation. Thompson v. Clark,
142 S. Ct. 1332, 1338
(2022). The Supreme Court explained “malicious” “was often defined in this
context as without probable cause and for a purpose other than bringing the
defendant to justice.”
Id. Tillman does not argue he had probable cause to
arrest or cite Yancey for obstruction and criminal trespass, and the charges
were dismissed or dropped.
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22-10867 Opinion of the Court 9
prosecution in violation of her Fourth Amendment rights. See
Kingsland v. City of Miami,
382 F.3d 1220, 1234-35 (11th Cir. 2004),
abrogated on other grounds by Williams v. Aguirre,
965 F.3d 1147,
1159 (11th Cir. 2020). Malicious prosecution “requires a seizure
pursuant to legal process.” Williams, 965 F.3d at 1158 (quotation
marks omitted). “In the case of a warrantless arrest, the judicial
proceeding does not begin until the party is arraigned or indicted.”
Kingsland, 382 F.3d at 1235.
Yancey did not allege she was seized following an arraign-
ment, indictment, or probable-cause hearing, nor did she allege
Tillman made false statements in a warrant application. See Wil-
liams, 965 F.3d at 1158-59. In fact, the charges against Yancey were
apparently dropped or dismissed shortly after her warrantless ar-
rest, and she was not subject to a “significant, ongoing deprivation
of liberty.” Kingsland, 382 F.3d at 1236. Consequently, the arrest
alleged on July 15, 2019, “cannot serve as the predicate deprivation
of liberty because it occurred prior to the time of arraignment, and
was not one that arose from malicious prosecution as opposed to
false arrest.” Id. at 1235 (quotation marks omitted). Absent a sei-
zure related to the prosecution, Yancey does not have a cognizable
federal claim for malicious prosecution, and Tillman is entitled to
qualified immunity on this claim only. See id. at 1235-36.
B. Official Immunity on State Law Claims
As for the state law claims, public officials do not enjoy offi-
cial immunity under Georgia law when “they act with actual mal-
ice or with actual intent to cause injury in the performance of their
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10 Opinion of the Court 22-10867
official functions.” Ga. Const. art. I, § 2, ¶ IX(d); Murphy v. Bajjani,
647 S.E.2d 54, 60 (Ga. 2007). “Ill will alone is insufficient to estab-
lish actual malice; [Yancey] must show that [Tillman] acted with
the deliberate intent to commit a wrongful act or with the deliber-
ate intent to harm her.” Anderson v. Cobb,
573 S.E.2d 417, 419
(Ga. Ct. App. 2002).
Tillman’s alleged conduct is sufficiently egregious to meet
this standard. It would have been apparent to any reasonable of-
ficer the alleged use of force against Yancey was excessive and ille-
gal and that lying about the circumstances to fabricate charges jus-
tifying the use of force is wrongful. Compare Gardner v. Rogers,
480 S.E.2d 217, 219-221 (Ga. Ct. App. 1996) (holding an officer was
not entitled to official immunity as a matter of law where the of-
ficer used an excessive amount of force to conduct a warrantless
arrest and discussed with a colleague how to devise a ground on
which to arrest the plaintiff), with Selvy v. Morrison,
665 S.E.2d
401, 405-06 (Ga. Ct. App. 2008) (explaining the officers “may have
shown poor judgment, rude behavior, and reckless disregard for
the rights and safety of others” but not actual malice where the of-
ficers were present due to a warrant and there was no evidence the
officers “fabricated or even schemed to fabricate a charge”). At
least at the motion to dismiss stage, Yancey has alleged enough to
overcome official immunity on the state law claims.
III. CONCLUSION
We REVERSE the district court’s denial of Tillman’s motion
to dismiss only as to Yancey’s § 1983 malicious prosecution claim
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and AFFIRM the denial of the motion to dismiss on the remaining
claims.
