Austin Gates v. Hassan Khokar

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15118
________________________
D.C. Docket No. 1:15-cv-03307-LMM
AUSTIN GATES,
Plaintiff-Appellee,
versus
HASSAN KHOKHAR, individually,
J. BRAUNINGER, individually,
JAMES WAYNE WHITMIRE, individually,
Officers of the City of Atlanta Police Department,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 13, 2018)
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Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS,*
District Judge.
JULIE CARNES, Circuit Judge:
This action arises from Plaintiff Austin Gates’s arrest for violating Georgia’s
mask statute, O.C.G.A. § 16-11-38, during a protest in downtown Atlanta on
November 26, 2014. Plaintiff alleges that he was arrested without probable cause
in violation of the Fourth Amendment, and that this flawed arrest also violated the
First Amendment and various state laws. In this appeal, we consider his claims
against three City of Atlanta police officers who were involved in the arrest:
defendants Khokhar, Brauninger, and Whitmire (collectively “Defendants”). As to
these individual officers, and based on this arrest, Plaintiff has asserted federal
claims, pursuant to 42 U.S.C. § 1983, as well as state law claims for assault and
battery, invasion of privacy, unlawful detention, and malicious prosecution.
Defendants filed a motion to dismiss Plaintiff’s § 1983 and state law claims on the
grounds of qualified immunity and official immunity. The district court, however,
denied their motion, and they now appeal.
Having carefully reviewed the record, and after hearing oral argument, we
conclude that Defendants are entitled to qualified immunity on Plaintiff’s § 1983
claims and to official immunity on Plaintiff’s state law claims. Accordingly, we
*
Honorable Kathleen Williams, United States District Judge for the Southern District of Florida,
sitting by designation.
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REVERSE the district court’s order denying the motion to dismiss and REMAND
the case for further proceedings consistent with this opinion.
BACKGROUND
We assume the following facts to be true for purposes of this appeal. 1 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.
1
When considering the merits of a motion to dismiss under Federal Rule 12(b)(6), we accept the
factual allegations in the complaint as true and construe them in the light most favorable to
Plaintiff. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). Thus, we take all of
the relevant facts from the allegations in Plaintiff’s complaint.
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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
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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. As
noted, Plaintiff thereafter sued the City of Atlanta and the individual officers,
asserting § 1983 claims and state law claims. The individual officers moved to
dismiss Plaintiff’s § 1983 claims on the ground of qualified immunity and his state
law claims on the ground of official immunity. 2 The district court denied the
motion.
2
The City of Atlanta moved to dismiss Plaintiff’s § 1983 claims under Monell v. Dep’t of Soc.
Serv. of City of New York, 436 U.S. 658 (1978), and to dismiss his state claims under the doctrine
of sovereign immunity. The district court denied the City’s Monell motion, but granted its
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DISCUSSION
I. Standard of Review
We review the denial of a Rule 12(b)(6) motion to dismiss on qualified or
official immunity grounds de novo, applying the same standard as the district
court. See Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). When ruling on
a motion to dismiss, we “accept[] the facts alleged in the complaint as true,
drawing all reasonable inferences in the plaintiff’s favor.” Keating v. City of
Miami, 598 F.3d 753, 762 (11th Cir. 2010). To avoid dismissal, the “complaint
must contain sufficient factual matter . . . to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). A complaint is plausible on its face when it contains sufficient facts to
support a reasonable inference that the defendant is liable for the misconduct
alleged. Id.
II. Qualified Immunity
A. Standard
Defendants argue that they are entitled to qualified immunity on Plaintiff’s
federal constitutional claims asserted under § 1983. “Qualified immunity protects
government officials performing discretionary functions from suits in their
motion based on sovereign immunity. This appeal, however, does not involve those rulings, but
instead concerns only the district court’s denial of the individual officers’ motion to dismiss.
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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).
To be clearly established, a right must be well-established enough “that
every reasonable official would have understood that what he is doing violates that
right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks
omitted and alteration adopted). In other words, “existing precedent must have
placed the statutory or constitutional question beyond debate” and thus given the
official fair warning that his conduct violated the law. Id. (emphasis added); Coffin
v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (“The critical inquiry is
whether the law provided [Defendant officers] with ‘fair warning’ that their
conduct violated the Fourth Amendment.”).
Fair warning is most commonly provided by materially similar precedent
from the Supreme Court, this Court, or the highest state court in which the case
arose. See Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). However, a
judicial precedent with identical facts is not essential for the law to be clearly
established. Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).
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Authoritative judicial decisions may “establish broad principles of law” that are
clearly applicable to the conduct at issue. Griffin Indus., Inc. v. Irvin, 496 F.3d
1189, 1209 (11th Cir. 2007). And occasionally, albeit not very often, it may be
obvious from “explicit statutory or constitutional statements” that conduct is
unconstitutional. Id. at 1208–09. In all of these circumstances, qualified immunity
will be denied only if the preexisting law by case law or otherwise “make[s] it
obvious that the defendant’s acts violated the plaintiff’s rights in the specific set of
circumstances at issue.” Youmans, 626 F.3d at 563.
A defendant who asserts qualified immunity has the initial burden of
showing he was acting within the scope of his discretionary authority when he took
the allegedly unconstitutional action. See Bennett v. Hendrix, 423 F.3d 1247, 1250
(11th Cir. 2005). Assuming the defendant makes the required showing, the burden
shifts to the plaintiff to establish that qualified immunity is not appropriate by
showing that (1) the facts alleged make out a violation of a constitutional right and
(2) the constitutional right at issue was clearly established at the time of the alleged
misconduct. See Perez v. Suszczynski, 809 F.3d 1213, 1218 (11th Cir. 2016).
Plaintiff does not dispute that Defendants were acting in their discretionary
authority when they arrested him on November 26, 2014. The burden thus lies
with Plaintiff to show that his arrest violated a constitutional right and that the right
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was clearly established at the time of the arrest. See id. Plaintiff cannot satisfy
either prong of this analysis.
B. District Court’s Order
The district court implicitly agreed that Defendants had probable cause to
arrest Plaintiff based on the elements of the mask law as set out in the statute. The
court, however, noted that the Georgia Supreme Court has also imposed a mens rea
element onto the statute, requiring that the wearer of the mask know or reasonably
should know that his actions give rise to a reasonable apprehension of intimidation,
threats, or impending violence. The district court further added that Plaintiff had
alleged that he never intended to threaten, intimidate, or cause the apprehension of
violence by his mask-wearing. Given this protestation by Plaintiff in his
complaint, the district court concluded that the defendant officers lacked even
arguable probable cause to arrest Plaintiff for violating the mask statute.
Addressing whether existing precedent gave Defendants fair notice that an
arrest under these circumstances would be unlawful, the district court stated, “The
Eleventh Circuit has concluded that it is ‘clearly established that an arrest without
probable cause to believe a crime has been committed violates the Fourth
Amendment.’ Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990).”
(emphasis in district court order) (alteration accepted). The court concluded that
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Defendants were therefore on notice that their arrest in this case was unlawful. We
disagree with the district court’s analysis.
C. Constitutional Violation: False Arrest
In support of his § 1983 claims, Plaintiff alleges that he was arrested without
probable cause while engaging in a protest, which action, he says, violated his
Fourth Amendment and First Amendment rights. 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); Redd v. City of Enterprise, 140 F.3d 1378, 1383
(11th Cir. 1998) (in the context of a First Amendment claim arising from an
alleged false arrest, observing that “[w]hen a police officer has probable cause to
believe that a person is committing a particular public offense, he is justified in
arresting that person, even if the offender may be speaking at the time that he is
arrested.”).
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“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).
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“Arguable probable cause exists where reasonable officers in the same
circumstances and possessing the same knowledge as the [defendant] could have
believed that probable cause existed to arrest.” Id. (emphasis added and internal
quotation marks omitted). See also Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.
2003) (“[T]he inquiry is . . . whether an officer reasonably could have believed that
probable cause existed, in light of the information the officer possessed.” (internal
quotation marks omitted)).
Whether an officer has probable cause or arguable probable cause, or
neither, “depends on the elements of the alleged crime and the operative fact
pattern.” Brown, 608 F.3d at 735. The rationale behind qualified immunity is that
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.” Id. Under
this Court’s governing precedent, such an officer likewise cannot be held
personally liable for false arrest.
Viewing the facts in the light most favorable to Plaintiff, we think
Defendants had actual probable cause to arrest Plaintiff for violating Georgia’s
mask statute. But even assuming they lacked actual probable cause, these officers
clearly had arguable probable cause. We explain why.
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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).
In addition to the statutory exceptions, the Georgia mask statute must be
read in light of the limitations placed on it by the Georgia Supreme Court in State
v. Miller, 260 Ga. 669 (1990) and Daniels v. State, 264 Ga. 460 (1994). In Miller,
a Ku Klux Klan member—challenging the constitutionality of the mask statute—
appeared in public wearing the traditional Klan regalia, including a mask that
covered his face. Miller, 260 Ga. at 669. He was the only Klan member present in
Klan clothing (and, thus, was part of no mass demonstration) and other than his
mask-wearing, engaged in no threatening or intimidating conduct and caused no
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breach of the peace. Id. at 678 (Smith, J. dissenting). Miller claimed that by
prohibiting him from wearing a mask in public, the statute violated his right to
engage in symbolic speech. See id. at 669–72. Explaining that the statute was
intended to protect “the people of Georgia from terrorization by masked vigilantes”
and “hate” organizations such as the Klan, id. at 672, the Georgia Supreme Court
determined that the State had a compelling interest in providing such protection,
and that the mask statute furthered that interest by prohibiting the “intimidation,
violence, and actual and implied threats” often associated with public mask-
wearing. Id. Accordingly, the Court upheld the constitutionality of the statute
with the proviso that a person can be convicted of violating it only if the State also
proves that (1) the mask is worn with the intent to conceal the identity of the
wearer and (2) the wearer of the mask “knows or reasonably should know that [his]
conduct provokes a reasonable apprehension of intimidation, threats, or violence.”
Id. at 674.
In Daniels, the Georgia Supreme Court applied the intent requirement
recognized in Miller to reverse a defendant’s conviction under the mask statute.
See Daniels, 264 Ga. at 464. The defendant in Daniels had been arrested and
convicted of violating the mask statute after police officers observed him, during
daylight hours, talking to several children in the street while wearing an old
football helmet and a wrestling mask. See id. at 461, 463. Evidence presented at
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the bench trial, however, indicated that the defendant was simply trying to
entertain neighborhood children by wearing the helmet and mask, and that, under
those circumstances, there was no intent to intimidate them or reckless disregard
for the possibility that they might be intimidated. See id. at 461–63. The Georgia
Supreme Court reversed the conviction, citing Miller and emphasizing that, in
order to obtain a conviction under the mask statute, the State must show that the
mask-wearer “(1) intended to conceal his identity, and (2) either intended to
threaten, intimidate, or provoke the apprehension of violence, or acted with
reckless disregard for the consequences of his conduct. . . with reasonable foresight
that injury would occur;” id. at 464; that is, with reasonable foresight that his
conduct would threaten, intimidate, or cause the apprehension of violence.
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
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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.
Plaintiff argues, however, that when one also factors in the additional intent
requirement imposed onto the statute by Miller and Daniels for purposes of
sustaining a conviction, Defendants had neither arguable nor actual probable cause
to believe that Plaintiff wore the “V for Vendetta” mask with the intent to threaten,
intimidate, or provoke the apprehension of violence, or with reckless disregard for
the fact that his conduct could cause the above reaction. We disagree.
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First, as far as arguable probable cause is concerned, our Court has
repeatedly held that “[s]howing arguable probable cause does not . . . require
proving every element of a crime.” Brown, 608 F.3d at 735. See also Dahl, 312
F.3d at 1234 (“That the officers had no specific evidence as to [one] element, [as
necessary to sustain a conviction] at trial, did not prevent them from having
probable cause to make the arrest.”); Scarbrough v. Myles, 245 F.3d 1299, 1302–
03 (11th Cir. 2001) (“Arguable probable cause does not require an arresting officer
to prove every element of a crime[.]”). To require an arresting officer to prove
every element of a crime “would negate the concept of probable cause and
transform arresting officers into prosecutors.” Lee, 284 F.3d at 1195. In
particular, we have never pronounced a rigid requirement that an arresting officer
must have specific evidence of the subjective intent and knowledge of a subject
beyond the subject’s conduct that otherwise gives rise to probable cause to arrest.
In fact, we have acknowledged that “no police officer can truly know another
person’s subjective intent.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir.
2007). 3
3
Of interest, albeit not dispositive for purposes of a § 1983 analysis, the Georgia Supreme Court
has suggested that an arrest for violation of the mask statute can be lawful, even though the facts
concerning the intent element would be insufficient to justify a conviction. In Miller, the
Georgia Supreme Court distinguished between the evidence sufficient to support an arrest under
the mask statute and the evidence required to sustain a conviction, noting that the defendant’s
arrest was constitutional but that “[t]he particular facts of [the] case may or may not support
conviction under the statute.” See Miller, 260 Ga. at 671 n.1.
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The Georgia Supreme Court has instructed that, in assessing whether a
mask-wearer acts with the requisite criminal intent, one must consider the
surrounding circumstances. See Miller, 260 Ga. at 674; Daniels, 264 Ga. at 463–
64. Given the circumstances of this case, an objectively reasonable officer in
Defendants’ position could have believed that Plaintiff was either actually trying to
intimidate or reasonably would have known that his conduct would provoke a
reasonable apprehension that he was doing so, which is, in relevant part, the intent
element imported into the statute by the Georgia Supreme Court in Miller and
Daniels for purposes of sustaining a conviction.
Like some other protesters, Plaintiff was wearing a mask that covered his
entire face, and thus concealed his identity, during this night-time protest. That
conduct might be sufficient by itself to suggest an intent to intimidate. But there is
more: the calculus changed dramatically when the police repeatedly asked the
masked protesters to remove their masks, else be arrested. Notwithstanding this
command, Plaintiff nonetheless persisted, in what could reasonably be perceived as
defiance of this lawful order by the police. A reasonable officer could infer that
Plaintiff intended to intimidate based on such conduct, or, at the least, infer that
Plaintiff could reasonably foresee that his behavior would be viewed as
intimidating. Cf. Miller, 260 Ga. at 671–72 (recognizing that a “nameless, faceless
figure strikes terror in the human heart”).
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That Plaintiff now alleges he did not hear Whitmire’s warnings to remove
his mask is immaterial. For purposes of our qualified immunity analysis, “we look
only to whether a reasonable officer, knowing what [Defendants] knew at the time,
objectively could have believed probable cause existed.” See Brown, 608 F.3d at
736 (emphasis added). Here, over a loud speaker, the police issued multiple
warnings directing protestors to remove their masks. Given all the surrounding
circumstances, an objective officer could reasonably have interpreted Plaintiff’s
refusal to comply with multiple orders to remove his mask as a gesture intended to
intimidate. See id. (where a disorderly conduct statute required an intent to create
public annoyance, but where the arresting officer could not know for sure what the
plaintiff’s intent was, the plaintiff’s “actions in playing loud music, stopping her
car, and rolling her window down could have indicated to an objectively
reasonable officer at the scene that [the plaintiff] was making unreasonable noise
with intent to create public annoyance” in violation of the statute); Lee, 284 F.3d at
1195 (concluding that there was arguable probable cause for the plaintiff’s arrest
because “[a] prudent law enforcement officer . . . could have believed that [the
plaintiff] was honking her horn for a purpose other than signaling danger,” in
violation of a county noise ordinance).
In concluding that arguable probable cause to arrest was lacking, the district
court relied on Plaintiff’s allegation that he never intended to intimidate anyone
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through his wearing of the V for Vendetta mask. Ergo, the court concluded,
arguable probable cause evaporated. This approach was error. It is not Plaintiff’s
post-hoc explanation of his actions that counts. What matters is what a reasonable
police officer under the circumstances could infer from those actions. A
reasonable officer could infer that, in disobeying Whitmire’s commands to remove
his mask, Plaintiff actually intended to intimidate or, at the least, acted with
“reasonable foresight” that his conduct would do so.
Although not outcome-determinative, we also note that, in explaining the
origins of the Guy Fawkes mask, Plaintiff implicitly acknowledges that the mask
could be perceived as celebrating violent protest against the government.
Specifically, the complaint links to an article4 that describes Guy Fawkes as “an
infamous insurgent who tried to blow up the British Parliament in 1605.” See
http://theweek.com/articles/463151/brief-history-guy-fawkes-mask. The article
notes that the Guy Fawkes mask became more familiar in popular culture
following release of the graphic novel and film V for Vendetta, whose protagonist
is a vigilante who attempts to destroy the government. Id. The association of the
“V for Vendetta” mask with vigilantism and the violent overthrow of the
4
The article states, in part: “Over the past decade, dissidents across the globe have appropriated
the visage of Guy Fawkes, the infamous insurgent who tried to blow up the British Parliament in
1605, warping the once-reviled fringe rebel into a widespread symbol of resistance. The iconic
version of the Guy Fawkes mask owes its popularity to the graphic novel and film V for
Vendetta, which centers on a vigilante’s efforts to destroy an authoritarian government in a
dystopian future United Kingdom. See http://theweek.com/articles/463151/brief-history-guy-
fawkes-mask for the full article.
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government could have further bolstered an objectively reasonable officer’s
determination that, by his insistence on wearing this mask, Plaintiff intended to
threaten and intimidate the police. See Wood, 323 F.3d at 878 (emphasizing that
whether arguable probable cause exists is determined by considering the “totality
of the circumstances”).
In short, and for all of the above reasons, we conclude that Defendants, at
the very least, had arguable probable cause to arrest Plaintiff for violation of the
mask statute. We disagree with the district court’s conclusion to the contrary.
D. Clearly Established Law
In deciding that clearly established law existed sufficient to put Defendants
on notice that their arrest of Plaintiff was unconstitutional, the district court made
the following statement: “The Eleventh Circuit has concluded that it is “clearly
established than an arrest without probable cause to believe a crime had been
committed violates the Fourth Amendment.” (citation omitted) (emphasis in
district court order). Of course, no one would disagree that the Fourth Amendment
requires an arrest to be based on probable cause. But we reiterate that an officer
who has arrested someone without probable cause might still be entitled to
immunity. This is so because the “clearly-established” inquiry does not ask
whether there was probable cause in actuality. Instead, it asks whether the pre-
existing law was so clear that, given the specific facts facing a particular officer,
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one must say 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.
In framing its inquiry more broadly than the above standard permits, the
district court erred, running afoul of the Supreme Court’s oft-repeated directive
“not to define clearly established law at a high level of generality.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks omitted). See also
White v. Pauly, 137 S. Ct. 548, 552 (2017) (“Today, it is again necessary to
reiterate the longstanding principle that clearly established law should not be
defined at a high level of generality.” (internal quotation marks omitted)); City &
Cnty. of San Francisco, Ca. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015)
(overruling the denial of qualified immunity and explaining that “[q]ualified
immunity is no immunity at all if ‘clearly established’ law can simply be defined
as the right to be free from unreasonable searches and seizures.”); Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014) (overruling the denial of qualified immunity
and commanding courts “not to define clearly established law at a high level of
generality . . . since doing so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she faced.”); Reichle, 566
U.S. at 665 (reversing the denial of qualified immunity and reiterating that “we
have previously explained that the right allegedly violated must be established, not
as a broad general proposition, but in a particularized sense so that the contours of
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the right are clear to a reasonable official.” (quotations and citations omitted); al-
Kidd, 563 U.S. at 742 (overruling the denial of qualified immunity); Anderson v.
Creighton, 483 U.S. 635, 639 (1987) (overruling the denial of qualified immunity:
assertion of a general constitutional or statutory right is insufficient to defeat
qualified immunity because “[i]f the test of ‘clearly established law’ were to be
applied at this level of generality, . . . [p]laintiffs would be able to convert the rule
of qualified immunity . . . into a rule of virtually unqualified liability simply by
alleging violation of extremely abstract rights.”). Rather, the 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
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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. That
judges disagree about a constitutional issue is itself evidence that a right is
insufficiently clearly established for purposes of denying qualified immunity. See
Wilson v. Layne, 526 U.S. 603, 618 (1999) (noting that “[i]f judges thus disagree
on a constitutional question, it is unfair to subject police to money damages for
picking the losing side of the controversy.”).
Plaintiff does not cite, and we have not found, any already existing law that
clearly established—beyond debate—the unlawfulness of an arrest under the
circumstances present here. 5 And that is not surprising, given our conclusion that,
at the very least, Defendants arguably had probable cause to arrest. Because we
conclude—as a matter of law—that Defendants violated no already clearly
established right, we thus conclude that the district court erred in denying
5
What the Georgia Supreme Court decided in Miller is that Georgia’s mask statute prohibits
“mask-wearing conduct when the mask-wearer knows or reasonably should know that the
conduct provokes a reasonable apprehension of intimidation, threats or violence”: an intent that
must be determined based on the surrounding circumstances of the case. Miller, 260 Ga. at 674.
Then, in rejecting Miller’s equal protection challenge, the Georgia Supreme Court observed that
“In our view, the statute distinguishes appropriately between mask-wearing that is intimidating,
threatening or violent and mask-wearing for benign purposes. It would be absurd to interpret the
statute to prevent non-threatening political mask-wearing, or to condone threatening mask-
wearing conduct on a holiday.” Id. at 676. The “It would be absurd…” language is not the
holding in the case, meaning it articulates no clearly established rule for purposes of federal
qualified immunity. See Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (“There is, of course,
an important difference between the holding in a case and the reasoning that supports that
holding.”). But had the Miller court flatly construed the statute as proscribing only “threatening”
conduct, no case authority existed in 2014 that would have obviously alerted Defendants that
Plaintiff’s conduct here could not be deemed as threatening, under all the circumstances.
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Defendants’ motion to dismiss based on qualified immunity. Accordingly, we
reverse the district court’s denial of that motion.
III. Official Immunity
In addition to his federal claims, Plaintiff asserts state claims against
Defendants alleging that they violated his privacy rights, committed an assault and
battery against him, and unlawfully detained and maliciously prosecuted him.
Defendants moved to dismiss Plaintiff’s state claims on the ground of official
immunity, which under Georgia law 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.” See Ga. Const. art. I,
§ 2, para. IX(d). The district court likewise denied this motion.
Similar to qualified immunity, official immunity is intended to “preserve the
public employee’s independence of action without fear of lawsuits and to prevent a
review of his or her judgment in hindsight.” Cameron v. Lang, 274 Ga. 122, 122–
23 (2001). It applies to an officer’s “discretionary actions 6 taken within the scope
of [his] official authority.” Id.
The parties agree that Defendants were performing a discretionary act within
the scope of their official authority when they arrested Plaintiff. Thus, Defendants
can only be liable on Plaintiff’s state claims if they acted with “actual malice” or
6
Officers can incur personal liability for the negligent performance of “ministerial functions.”
See Ga. Const. art. I, § 2, para. IX(d).
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“actual intent to cause injury” as required to overcome official immunity. See
Adams v. Hazelwood, 271 Ga. 414, 414–15 (1999) (applying Georgia’s official
immunity provision). 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. (internal quotation marks
omitted).
None of the facts alleged in the complaint support a plausible claim that
Defendants acted with actual malice or an actual intent to injure Plaintiff, as those
terms have been defined by the Georgia Supreme Court. The only allegations that
could potentially be relevant to a finding of actual malice or intent to injure are
that: Defendants approached Plaintiff in “full riot gear” and arrested him without
probable cause; they “pushed” or “pulled” Plaintiff while making the arrest; they
handcuffed Plaintiff, transported him to the precinct and jail, and processed and
booked him; and they made Plaintiff wait approximately twelve hours without
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food, water, or a place to sleep. 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. See Reed v. DeKalb Cty., 264
Ga. App. 83, 86 (2003) (“Even when an arresting officer operates on a mistaken
belief that an arrest is appropriate, official immunity still applies.”); Selvy v.
Morrison, 292 Ga. App. 702, 705 (2008) (holding that much more egregious
conduct on the part of an arresting officer than is alleged by Plaintiff “may have
shown poor judgment, rude behavior, and reckless disregard for the rights and
safety of others” but not actual malice or intent to injure).
Accordingly, for the above reasons, we reverse the district court’s denial of
Defendants’ motion to dismiss state-law claims made against them.
CONCLUSION
We conclude that Defendants are entitled to qualified immunity on
Plaintiff’s § 1983 claims and to official immunity on Plaintiff’s state claims. We
therefore REVERSE the district court’s order denying dismissal of these claims
under Federal Rule 12(b)(6) and REMAND the case with the direction that the
district court dismiss these claims against the individual defendants.
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KATHLEEN M. WILLIAMS, District Judge, dissenting in part:
Although I agree that official immunity warrants dismissal of the state-law
claims against Appellants, I do not agree that the officers are entitled to qualified
immunity on Gates’s federal claims. More specifically, I believe that Gates has
adequately pled that Appellants lacked actual or arguable probable cause to arrest
him for wearing a Guy Fawkes mask during an admittedly peaceful protest in
downtown Atlanta. Therefore, I would affirm the district court’s finding that
Gates’s First and Fourth Amendment claims should survive a motion to dismiss.1
The majority concludes otherwise, based on a qualified immunity analysis
that fails to adequately address the First-Amendment implications of the conduct
and statute at issue here. While it is true that the existence of probable cause to
arrest can defeat a First Amendment claim arising out of that arrest in certain
circumstances—for example in cases like Dahl and Redd, where a presumptively
valid arrest under an unrelated statute for non-protected conduct had the ancillary
1
Because we are addressing this case on a motion to dismiss, the allegations in the amended
complaint and its attachments, taken as true, must control our analysis of whether Gates has
alleged a violation of a clearly established constitutional right that would preclude the
application of qualified immunity. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir.
2010) (“We review the denial of a motion to dismiss de novo and determine whether the
complaint alleges a clearly established constitutional violation, accepting the facts alleged in
the complaint as true, drawing all reasonable inferences in the plaintiff’s favor, and limiting
our review to the four corners of the complaint.”); Ledea v. Metro-Dade Cty. Police Dep’t, 681
F. App’x 728, 729 (11th Cir. 2017) (explaining that the qualified immunity analysis and the
12(b)(6) standard “become intertwined” at the motion to dismiss stage).
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effect of terminating protected speech—it is not appropriate here. This is because
the Anti-Mask Act, which was purportedly the sole basis of Gates’s arrest, was
itself challenged under the First Amendment over two decades ago in State v.
Miller, 260 Ga. 669 (1990); it was saved only by implementing a narrowing
construction of the statutory text that circumscribed the conduct subject to criminal
penalty. 2 Consequently, determining probable cause for arrest under the Anti-
Mask Act—which underpins both the Fourth and First Amendment claims—
necessarily requires an evaluation of whether Gates’s actions fell within the
category of protected expression that was deliberately identified as such by the
Miller court.
The first question addressed in a qualified immunity analysis is whether the
right was “clearly established” at the time of the alleged violation. In order to
demonstrate that a right is “clearly established” for the purposes of qualified
immunity, “[w]e do not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond debate.” Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011). Under this standard, even assuming that the
“clearly established right” must be defined more narrowly than an “arrest without
2
As the majority acknowledges, the Miller court narrowed the reach of the statute to cover “only
. . . mask-wearing . . . when the mask-wearer knows or reasonably should know that the
conduct provokes a reasonable apprehension of intimidation, threats or violence,” which “does
not reach a substantial amount of constitutionally protected conduct” because “the restriction is
limited to threats and intimidation, which is not protected expression under the First
Amendment.” State v. Miller, 260 Ga. 669, 674 (1990).
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probable cause . . . violates the Fourth Amendment,” the specific right at issue
here—whether individuals can be subject to arrest for wearing a mask during a
peaceful protest—was “clearly established” at the time of Gates’s arrest.
This Circuit has unambiguously held that “[our] [d]ecisions . . . have put
police officers on notice for decades that protestors present on public property have
a First Amendment right to peacefully express their views, in the absence of
narrowly tailored ordinances restricting the time, place, or manner of the speech.”
Childs v. Dekalb Cty., Ga., 286 F. App’x 687, 693-94 (11th Cir. 2008). Based
upon this body of caselaw, the Childs court determined that the officers in that case
were not entitled to qualified immunity on the First Amendment claims arising out
of an allegedly false arrest, because it was “one of those cases where ‘a general
constitutional rule already identified in the decisional law [applies] with obvious
clarity to the specific conduct in question.’” Id. The same is true here.
But even beyond the clearly established right to peacefully protest that is set
out in the First Amendment, it would be unreasonable for the officers to believe
that the Anti-Mask Act was intended to cover the type of protected speech at issue
here. As the Miller court declared in defending the constitutionality of the Anti-
Mask Act twenty years ago, “[i]t would be absurd to interpret the statute to prevent
non-threatening political mask-wearing.” Miller, 260 Ga. at 676. Contrary to the
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majority’s suggestion, this pronouncement made clear that such conduct had never
fallen within the purview of the Act; the court “eschew[ed] such a construction of
the statute.” Miller, 260 Ga. at 676 (1990). Thus, under any reading of what
constitutes a clearly established right, there can be no doubt that “every reasonable
official would have understood” that if Gates was engaging in “non-threatening
political mask-wearing,” there was no probable cause for arrest under the Anti-
Mask Act and the officers cannot be shielded from suit by qualified immunity.
As to whether a violation of this right occurred, the majority suggests that
there was no violation because “[they] think Defendants had actual probable cause
to arrest Plaintiff for violating Georgia’s mask statute.” In support of this
observation, they note that Gates’s conduct fell within a purely textualist reading of
the statute and did not qualify for any of the listed exceptions, making arrest under
the statute reasonable. That conclusion is untenable. First, it ignores the
majority’s own acknowledgement that “the Georgia mask statute must be read in
light of the limitations placed on it by the Georgia Supreme Court in State v.
Miller, 260 Ga. 669 (1990) and Daniels v. State, 264 Ga. 460 (1994).” But, more
importantly, it renders the binding decision by the Miller court a nullity, ignoring
the limiting construction that saved the statute from constitutional infirmity and
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permitting reliance on the already-rejected, plain-text reading to satisfy probable
cause. 3
Still, in order to prevail on his federal claims, Gates must also demonstrate
that the officers lacked arguable probable cause for his arrest. The complaint
clearly acknowledges that the mask Gates wore concealed his identity. As such,
the question of arguable probable cause turns on whether, taking the facts alleged
in the light most favorable to Gates, “reasonable officers in the same circumstances
and possessing the same knowledge . . . could have believed” that Gates “intended
to threaten, intimidate, or provoke the apprehension of violence” as opposed to
simply being engaged in “non-threatening political mask-wearing.” See Lee v.
Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (emphasis added); Daniels, 264 Ga.
at 460-61; Miller, 260 Ga. at 676.
The majority offers two alternative bases for finding that the officers had
arguable probable cause to believe that Gates intended to intimidate or should have
known that his conduct would be intimidating. First, they state that “[l]ike some
other protesters, Plaintiff was wearing a mask that covered his entire face, and thus
3
Plaintiff’s complaint points out that the arrest report makes no mention of a “threat” or intent to
threaten. Instead, the report reinforces Plaintiff’s contention that he was arrested based solely
on the fact that he was wearing a mask and failed to remove it. It states that Officer Khokhar
“observed [Gates] wear a ‘V for Vendetta’ mask,” that Gates “was actively participating in a
protest” and that “the protesters had been warned on loud speakers multiple times that anyone
wearing a mask will be arrested.” It then states, “Mr. Gates still had his mask on. Mr. Gates
was arrested for wearing a mask.”
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concealed his identity, during this night-time protest,” concluding that “[t]hat
conduct might be sufficient by itself to suggest an intent to intimidate.” 4 This
reading of the breadth of the Anti-Mask Act cannot be reconciled with the analysis
in Miller. In fact, because the protest was concededly peaceful, this approach
would prohibit the “non-threatening political mask-wearing” First-Amendment
conduct that Miller explicitly allows, simply because the political event took place
at night. Absent more, 5 this cannot form the basis for arguable probable cause.
The majority goes on, however, to state that even if those circumstances
alone were insufficient, Gates’s failure to remove his mask when the police
4
The Supreme Court has held arguably more “threatening” conduct to be “a far cry” from the
“violence or threat of violence” that would bring such conduct outside of the protections of the
First Amendment. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 233-35 (1963) (finding
no threat of violence where a group of protesters assembled on State House grounds and
refused to leave when told to do so by the police, instead engaging in “‘boisterous,’ ‘loud,’ and
‘flamboyant’ conduct, which, . . . later testimony made clear . . . consisted of listening to a
‘religious harangue’ by one of their leaders, and loudly singing ‘The Star Spangled Banner’
and other patriotic and religious songs, while stamping their feet and clapping their hands”).
5
The majority notes that the significance of the Guy Fawkes mask could “bolster” the Officers’
reasonable inference that Gates intended to threaten or intimidate. They rely on an article
attached to the complaint, which explains that Guy Fawkes was an “infamous insurgent who
tried to blow up the British Parliament in 1605,” and that the mask bearing his face became
popular based on “the graphic novel and film V for Vendetta, which centers on a vigilante’s
efforts to destroy an authoritarian government in a dystopian future United Kingdom.” Apart
from the fact that this inference turns the motion to dismiss standard on its head, the citation
does not posit an equivalent predicate to the violent legacy of the Ku Klux Klan in Georgia
described in Miller: “harassment, intimidation and violence against racial and religious
minorities carried out by mask-wearing Klansmen and other ‘hate’ organizations” that
“operated as vigilantes and were responsible for numerous beatings and lynchings.” Miller,
260 Ga. at 672. Nor does the admittedly peaceful protest in which Gates was engaged bear any
resemblance to the Klan’s vast legacy of domestic terror, which the Miller court discussed at
length in their opinion and found to be clearly articulated by the Klan mask, whether worn by
one or by many, in daytime or at night.
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ordered the protesters to do so “changed [the calculus] dramatically,” and led to a
reasonable inference that such a refusal was “a gesture intended to intimidate.”
Again, the discussion of Gates’s First Amendment right to anonymously protest in
a non-violent manner is conspicuously absent from the conclusory finding that
noncompliance with this order gave rise to arguable probable cause.
There can be no doubt that the order to remove the masks was directed at
what would be constitutionally-protected expression, 6 unless it was brought outside
the ambit of the First Amendment through some exception—here, the threat of
violence or intimidation that was criminalized by the Anti-Mask Act.7 As
6
The Supreme Court has held that peaceful protests constitute “an exercise of . . . basic
constitutional rights in their most pristine and classic form.” Edwards, 372 U.S. at 233; see
also Brown, 383 U.S. at 141-42 (“[w]e are here dealing with an aspect of a basic constitutional
right—the right under the First and Fourteenth Amendments guaranteeing freedom of speech
and of assembly, and freedom to petition the Government for a redress of grievances. . . . As
this Court has repeatedly stated, these rights are not confined to verbal expression” and
“certainly include the right in a peaceable and orderly manner to protest by silent and
reproachful presence”); Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1182 (11th Cir. 2009)
(“Governments may not prevent protests, punish the exercise of the right to protest peacefully
by arresting the demonstrators, nor unduly burden the right by forcing demonstrators to
undergo excessive searches that violate the Fourth Amendment.”). The right to anonymously
engage in protected speech, especially political speech, has been similarly upheld by the
Supreme Court. See, e.g., Talley v. California, 362 U.S. 60, 64 (1960) (upholding the right to
anonymously engage in protected speech and noting that “[p]ersecuted groups and sects from
time to time throughout history have been able to criticize oppressive practices and laws either
anonymously or not at all.”); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 (1995)
(observing that although “[t]he specific holding in Talley related to advocacy of an economic
boycott, [] the Court's reasoning embraced a respected tradition of anonymity in the advocacy
of political causes.”). Indeed, the Miller court acknowledged this right in finding that engaging
in non-threatening political mask-wearing was clearly protected conduct and not actionable
under the Anti-Mask Act.
7
Even apart from the Anti-Mask Act, nothing in the complaint or attached documents gives any
indication that Gates’s conduct involved the type of “lewd and obscene, [] profane, [] libelous,
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discussed above, the record at this juncture does not demonstrate that such a threat
existed at the time the order was given, and so there was no legal basis for ordering
Gates to remove his mask. 8 To the contrary, the order itself constituted an
impermissible incursion on Gates’s right to free speech, and, as the Supreme Court
explained in Wright v. State of Ga., 373 U.S. 284, 292 (1963), “[o]bviously, . . .
one cannot be punished for failing to obey the command of an officer if that
command is itself violative of the Constitution.” See also Brown v. State of La.,
383 U.S. 131, 141 (1966). To say that arguable probable cause arose when the
police ordered Gates to remove his mask even if he was not violating the Anti-
Mask Act prior to the order being given, would render Fourth and First
Amendment protections meaningless: A Fourth Amendment claim cannot be
defeated because a citizen continues to engage in protected political speech in
contravention of an order she has no lawful obligation to obey. And her non-
criminalized, peaceful self-expression cannot be characterized as “threatening” and
stripped of constitutional protection simply because a police officer orders her to
stop.
and [] insulting or ‘fighting’ words” that would otherwise militate against invocation of the
First Amendment. Chaplinsky v. State of N.H., 315 U.S. 568, 572 (1942).
8
Plaintiff’s complaint expressly alleges that the order to remove the masks was
“unconstitutional” and “unlawful” because it was given “without regard to [the protesters’]
constitutional right[] to wear [the] masks.”
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In sum, nothing in the complaint or attached documentation supports a
finding that a reasonable officer could have believed that Gates’s conduct
evidenced an intent to threaten or intimidate, as required under the Anti-Mask Act.
The complaint alleges that Gates was wearing a mask “to express himself” during a
“peaceful protest” in downtown Atlanta, and that he was improperly arrested after
the police gave an “unconstitutional . . . order” to remove his mask and he did not
do so. The arrest report attached to the complaint similarly states that “Mr. Gates
was arrested for wearing a mask” while participating in a protest, with no mention
of threats or intimidation. Based on these allegations, it is clear that Gates’s
behavior is a far cry from the “terrorization by masked vigilantes” that the Anti-
Mask Act was designed to prevent. Miller, 260 Ga. at 672. Instead, the record
describes the type of “non-threatening political speech” that has unambiguously
qualified as protected expression since the Miller decision in 1990. For that
reason, I respectfully dissent.
36