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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14710
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:13-cv-01692-SCB-MAP



NATHAN DUANE HERBIG,

                                                            Plaintiff-Appellant,

                                  versus

AARON KRETZER,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 4, 2014)

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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       Nathan Duane Herbig, who was arrested on charges of lewd molestation that

were ultimately dismissed, appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint against Aaron Kretzer, a detective with the Polk County Sheriff’s

Office. In Herbig’s complaint, he claimed that Kretzer intentionally or recklessly

misrepresented or omitted material facts in the affidavit underlying his application

for a warrant to arrest Herbig which, if properly considered, would have

undermined the probable cause finding. The district court concluded that Kretzer

was entitled to qualified immunity from the suit because the facts alleged in

Herbig’s complaint, even if true, could not establish that Kretzer violated clearly

established law. After careful review, we affirm.

                                                 I.

       We review de novo a district court’s decision to dismiss a § 1983 claim on

qualified immunity grounds, resolving all issues of material fact in favor of the

plaintiff and then asking whether the defendant is entitled to qualified immunity as

a matter of law under the plaintiff’s version of the facts. 1 Case v. Eslinger, 555

F.3d 1317, 1324–25 (11th Cir. 2009).



1
  For this reason, we take as true all facts alleged in Herbig’s complaint and construe them in the
light most favorable his claim. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).
We also consider the affidavit underlying the arrest warrant only to the extent Herbig’s
complaint does not challenge its contents, because the affidavit was referenced throughout the
complaint and subsequently filed by both Herbig and Kretzer. See Day v. Taylor, 400 F.3d
1272, 1276 (11th Cir. 2005) (“[A] document need not be physically attached to a pleading to be
incorporated by reference into it.”).
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      “Section 1983 affords relief for individuals who have been deprived of a

constitutional right by an individual who was acting under color of state law.”

Lowe v. Aldridge, 958 F.2d 1565, 1569 (11th Cir. 1992). This seemingly broad

protection notwithstanding, the defense of qualified immunity eliminates the relief

otherwise available under § 1983 in many cases. This Court follows a two-step

analysis when deciding whether a government official is entitled to qualified

immunity from suit. First, the official must “prove that he was acting within the

scope of his discretionary authority when the allegedly wrongful acts occurred.”

Id. at 1570. Herbig does not dispute that Kretzer was engaged in a discretionary

function when he pursued the warrant for Herbig’s arrest. Whether Kretzer is

entitled to qualified immunity therefore turns on the second stage of the inquiry.

      In the second step, “the burden shifts to the plaintiff to show lack of good

faith on the defendant’s part,” a burden that is met by proof demonstrating that the

defendant’s conduct “violated clearly established constitutional law.” Id.

(quotation marks omitted). The plaintiff meets this burden by establishing (1) that

the facts, taken in the light most favorable to the plaintiff, demonstrate that the

official’s conduct violated the plaintiff’s constitutional rights, and (2) that the right

allegedly violated was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121

S. Ct. 2151, 2156 (2001). If the answer to either question is no, then the defendant

is protected by qualified immunity and we must affirm the district court’s dismissal


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of the claim on that basis. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct.

808, 818 (2009).

      For a right to be clearly established and defeat an official’s claim to qualified

immunity, “[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). Of course, this is not

to say that official action is protected by qualified immunity unless the precise

action in question has previously been held unlawful. Id. “[B]ut it is to say that in

the light of pre-existing law the unlawfulness must be apparent.” Id. This

reasonableness inquiry is an objective one, and therefore does not take into account

the officers’ subjective intent or beliefs. Von Stein v. Brescher, 904 F.2d 572, 579

(11th Cir. 1990).

      “Indubitably, an arrest without probable cause violates the Fourth

Amendment and establishes a cause of action under section 1983.” Lowe, 958

F.2d at 1570. We have clarified, however, that officers are entitled to qualified

immunity even if they did not have probable cause to arrest so long as they had

arguable probable cause, which exists if “reasonable officers in the same

circumstances and possessing the same knowledge . . . could have believed that

probable cause existed.” Id. (quoting Von Stein, 904 F.2d at 579); see also Malley

v. Briggs, 475 U.S. 335, 344–45, 106 S. Ct. 1092, 1098 (1986) (“Only where the


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warrant application is so lacking in indicia of probable cause as to render official

belief in its existence unreasonable will the shield of immunity be lost.” (citation

omitted)). In other words, actual probable cause—which is, at its heart, a

“reasonable ground for belief of guilt” based on the totality of the circumstances,

Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800 (2003) (quotation

mark omitted)—is not necessary for an arrest to be objectively reasonable. Lowe,

958 F.2d at 1570. This analysis requires us to affirm the district court’s

determination that qualified immunity shields Kretzer from suit if “any reasonable

officer would have sought” an arrest warrant based on the information Kretzer had.

Id. This standard is a forgiving one for officers. As the Supreme Court has said,

“it provides ample protection to all but the plainly incompetent or those who

knowingly violate the law.” Malley, 475 U.S. at 341, 106 S. Ct. at 1096.

                                          II.

      Applying this legal framework, the district court concluded that Herbig had

not met his burden to demonstrate that the right allegedly violated was clearly

established because “[e]ven if all of the allegedly omitted information was

incorporated into his affidavit, Kretzer could still reasonably conclude that

probable cause existed to believe that Herbig had sexually abused the girls.” We

agree. The affirmative representations in the affidavit—much of which Herbig did




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not challenge in his complaint—paint a troubling picture suggestive of sexual

abuse.

         Kretzer began his investigation by interviewing the victims’ mother. Kretzer

notes in the affidavit underlying the warrant application that the mother and Herbig

were divorced, that the mother had custody of the victims, and that Herbig only

had visitation rights one weekend out of every month. The mother told Kretzer

that the victims began exhibiting unusual behavior after visiting Herbig in Summer

2009 and making troubling statements suggesting that Herbig sexually abused

them and took nude photographs of them. The mother also told Kretzer that the

victims’ pre-school teacher and school director heard one of the victims make

statements indicating that her father sexually abused her. Kretzer conducted

follow up interviews with the victims’ teacher, school director, step-father, and

grandmother, who all provided statements corroborating much of the information

supplied by the victims’ mother.

         Kretzer also reviewed two videotaped forensic interviews with the victims

conducted by two Child Protective Service Investigators on December 17 and

December 21, 2009. The affidavit, however, only includes information from the

December 21 interviews. In the affidavit, Kretzer candidly revealed that the

victims were “unable to distinguish the difference between a truth and a lie” and

that there was no agreement made to speak only about the truth during the


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interview. During the interviews, both victims said that their father touched them

inappropriately, aided in their description by forensic dolls. The description of the

recorded interview is the only affirmative content in the affidavit Herbig

challenges, claiming that the affidavit “exaggerated” the victims’ actions and

statements during the interviews. Even so, Herbig acknowledges that in both

interviews the victims “exhibited some inappropriate behavior with the forensic

dolls supplied [to] them.”

      Herbig complains that this information misrepresents and omits material

facts which, if considered, would have caused Kretzer’s warrant application to be

rejected. Herbig claims that the affidavit was deficient in the following ways: (1) it

did not adequately explain “the historical and bitter custody/divorce relationship

between [Herbig] and his ex-wife that would have substantially affected the

reliability and credibility of the ex-wife’s allegations of child sexual abuse;” (2) it

did not include any information about the December 17 forensic interview, in

which the victims denied any sexual abuse; (3) it “exaggerated” the victims’

actions and statements in the December 21 interview, although Herbig does not

explain in what way the affidavit misrepresented the recording; (4) it did not

include the mother’s additional allegation during the course of the investigation

that Herbig also abused his girlfriend’s eight-year-old daughter, allegations which




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had been denied by that child; and (5) it did not reflect the fact that a search of

Herbig’s home failed to yield any evidence of sexual abuse.

      We do not doubt that a contentious divorce and custody battle may call into

question allegations made by one former spouse against the other. But the fact that

Kretzer’s affidavit did not explain the “historical and bitter” nature of the divorce

and custody battles does not have much impact on the arguable probable cause

analysis. We say this because not only did Kretzer actually include information in

the affidavit indicating that the primary accuser was Herbig’s ex-spouse and that

Herbig had very limited visitation rights, but Kretzer also independently

investigated and corroborated the mother’s allegations. United States v. Gonzalez,

969 F.2d 999, 1003 (11th Cir. 1992) (noting that, in the probable cause analysis,

“corroboration of the details of an informant’s tip by independent police work is of

significant value”). Kretzer’s interviews with the victims’ grandmother, step-

father, pre-school teacher, and school director, as well as his review of the

December 21 forensic interviews, all corroborated the mother’s descriptions of the

victims’ behavior and statements. Given the detailed allegations and the

independent corroboration, the fact that the divorce and custody battles were

“bitter” does not make Kretzer’s decision to pursue an arrest warrant objectively

unreasonable. Cf. Lowe, 958 F.2d at 1571 (concluding, in an analogous § 1983

case where a warrant issued based in large part on accusations of sexual abuse


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lodged by one ex-spouse against another, that “the fact that the [two] were

enmeshed in a bitter divorce and custody battle . . . carries little weight in the

analysis” in part because “allegations of abuse leveled during divorce cannot be

ignored merely because they are brought up in the heat of battle”).

         Herbig’s challenge to the accuracy of Kretzer’s description of the December

21 interview in the affidavit does not change our conclusion that it corroborates the

mother’s allegations. Herbig’s complaint claims that Kretzer “exaggerated” the

victims’ statements and behavior during the interview but does not sufficiently

explain how and to what extent Kretzer’s description deviates from reality. In that

sense, Herbig’s allegation is merely conclusory. Cf. Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 1949 (2009) (describing the pleading standards and

noting that “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice” to give an allegation “facial

plausibility”). But even assuming that Kretzer did exaggerate the improprieties

implied in the recorded interview, Herbig nevertheless acknowledges that the

interview suggests that Herbig engaged in “inappropriate behavior” towards the

victims. This suggestion goes a long way towards establishing arguable probable

cause.

         The remaining omissions Herbig identifies in his complaint do not render

Kretzer’s belief that there was probable cause objectively unreasonable. That the


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victims initially denied the sexual abuse allegations comes as no surprise, nor does

the fact that there was no physical evidence of the abuse found during the search of

Herbig’s home. 2 See Lowe, 958 F.2d at 1571 (“The children’s initial denial that

any [sexual] abuse occurred is not unusual, nor is the fact that the physical

evidence was not dramatic. Thus, the children’s early reticence does not militate

against a conclusion that the state officials acted with probable cause.” (footnote

omitted)). And the fact that the mother accused Herbig of abusing another minor

victim who denied the allegation does not undermine the reasonableness of

Kretzer’s determination that he had probable cause to believe Herbig sexually

abused his own daughters. Although it may to some extent undermine the

mother’s credibility, the evidence corroborating the mother’s allegations that her

own daughters were abused lends support to the reasonableness of Kretzer’s

probable cause determination even though the mother’s other accusation was

unsubstantiated.

       In short, even considering the deficiencies in Kretzer’s investigation which

are pointed out in Herbig’s § 1983 complaint, there was evidence from which a

reasonable officer could believe there was probable cause to arrest Herbig for



2
  To be sure, one might reasonably expect that some evidence of the alleged abuse—for example,
the nude photographs—would have been found. But a reasonable expectation that evidence
might be found does not equate to an expectation that if none is found, then there is no reason to
believe that any abuse ever occurred. This is particularly so in cases like this one, with evidence
from a number of sources suggesting sexual abuse.
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sexually abusing his daughters. As a result, Kretzer is protected from suit by

qualified immunity, and the district court properly dismissed Herbig’s complaint.

      AFFIRMED.




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