Elizabeth Leigh Butler v. Paul Tremblay , 699 F. App'x 913 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12607
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-03289-LMM
ELIZABETH LEIGH BUTLER,
Plaintiff-Appellant,
versus
GWINNETT COUNTY, GEORGIA, et al.,
Defendants.
PAUL TREMBLAY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 26, 2017)
Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Elizabeth Leigh Butler appeals the summary judgment against her complaint
about the violation of her civil rights by Officer Paul Tremblay of the Gwinnett
County Police Department, 42 U.S.C. § 1983, and a false arrest in violation of state
law. The district court ruled that Tremblay was entitled to qualified and statutory
immunity because he had arguable probable cause to arrest Butler for loitering. We
affirm.
We review a summary judgment de novo and view all evidence in the light
most favorable to the non-moving party. Lee v. Ferraro, 284 F.3d 1188, 1190
(11th Cir. 2002). “We then answer the legal question of whether the defendant is
entitled to qualified immunity under that version of the facts.” Id. (brackets
omitted) (quoting Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th Cir.
1998)).
The district court correctly entered summary judgment in favor of Tremblay
based on qualified immunity. Because Butler does not dispute that Tremblay was
acting within his discretionary authority, the only issue we need address is whether
Butler established that the officer violated clearly established law. See Rushing v.
Parker, 599 F.3d 1263, 1265 (11th Cir. 2010). Butler alleged that she and a male
friend were “just hanging out” in the back parking lot of a church after midnight on
a weekday, but their conduct provided at least arguable probable cause to arrest
them for loitering, see id. at 1266 (“A defendant need only demonstrate that
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arguable probable cause existed in order to be protected by qualified immunity.”).
Under Georgia law, “[a] person commits the offense of loitering or prowling when
[she] is in a place at a time or in a manner not usual for law-abiding individuals
under circumstances that warrant a justifiable and reasonable alarm or immediate
concern for the safety of persons or property in the vicinity.” Ga. Code Ann. § 16-
11-36(a). Butler and her friend’s presence concerned Tremblay, who had
responded several times to the security alarm at the church and had discovered its
door ajar. And when Tremblay approached Butler’s vehicle, he found her friend
sitting upside down in the front passenger’s seat with his feet dangling over the
headrest and his head hanging over the floorboard, which contained a damp white
substance. Although suspects may provide an explanation for their presence that
would dispel the concerns warranting an arrest, Butler and her friend’s
“explanation justifiably did not dispel [Tremblay’s] concerns,” Franklin v. State,
574 S.E.2d 361, 363 (Ga. Ct. App. 2002). Butler stated that she did not have
permission to be in the parking lot, and her friend admitted that he was nervous
and then volunteered that he was on bond following an arrest for possessing
cocaine and was undergoing drug treatment at a nearby rehabilitation center.
Tremblay was entitled to qualified immunity.
Tremblay also was immune from liability under state law. Georgia gives a
police officer official immunity for discretionary acts unless he “act[s] with actual
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malice or with actual intent to cause injury.” Ga. Const. art.1, § 2, ¶ 1. As the
district court stated, because Tremblay “had at least arguable probable cause to
[make an] arrest for violating Georgia’s loitering and prowling statute,” he “could
not have acted with malice or intent to cause injury.” Because no material factual
dispute exists about the presence of malice, Tremblay was entitled to summary
judgment based on official immunity.
We AFFIRM the summary judgment in favor of Officer Tremblay.
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