                                                            [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                               No. 05-14516               ELEVENTH CIRCUIT
                                                          DECEMBER 23, 2005
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                         ________________________               CLERK

                    D. C. Docket No. 04-00145-CV-WCO-2


GREGORY EARL WHITNER,


                                                      Plaintiff-Appellant,

                                    versus

RICK MOORE, Sheriff of Habersham County,
individually and in his official capacity,
ISRAEL SEGARS, individually and in his official capacity,


                                                      Defendants-Appellees.

                         ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                       _________________________

                              (December 23, 2005)

Before BLACK, BARKETT, and MARCUS, Circuit Judges.

PER CURIAM:
       Gregory Earl Whitner appeals the district court’s entry of summary judgment

in favor of Habersham County Deputy Israel Segars based on qualified immunity.

Whitner sued Deputy Segars, pursuant to 42 U.S.C. § 1983, alleging Segars arrested

him and seized his property without probable cause in violation of his Fourth

Amendment rights.1 On appeal, Whitner argues that Deputy Segars was not entitled

to qualified immunity because no reasonable officer would have believed that

probable cause, or arguable probable cause, existed to arrest him under the

circumstances of this case. We disagree and, accordingly, affirm the entry of

summary judgment based on qualified immunity.

       The parties are familiar with the background facts, which were thoroughly

described by the district court in its order, and we do not recount them again here.

We review de novo a district court’s entry of a summary judgment motion based on

qualified immunity, applying the same legal standards as the district court. See Lee

v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). We resolve all issues of material

fact in favor of the plaintiff, and then determine the legal question of whether the

defendant is entitled to qualified immunity under that version of the facts. Id.


       1
          Whitner’s complaint also named as a defendant Habersham County Sheriff Rick Moore and
asserted violations of the Fifth, Ninth, and Fourteenth Amendments as to both defendants. In the
district court, after the defendants filed their answer and motion for summary judgment based on
qualified immunity, in his brief opposing summary judgment, Whitner withdrew all claims except
for the Fourth Amendment claim against Deputy Segars. Thus, that is the only claim before us.

                                               2
      As we observed in Lee v. Ferraro:

             Qualified immunity offers “complete protection for government
      officials sued in their individual capacities as long as ‘their conduct
      violates no clearly established statutory or constitutional rights of which
      a reasonable person would have known.’” Thomas v. Roberts, 261 F.3d
      1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.
      800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)) (additional
      quotations omitted). The purpose of this immunity is to allow
      government officials to carry out their discretionary duties without the
      fear of personal liability or harassing litigation, see Anderson v.
      Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523
      (1987), protecting from suit “all but the plainly incompetent or one who
      is knowingly violating the federal law.” Willingham v. Loughnan, 261
      F.3d 1178, 1187 (11th Cir. 2001). Because qualified immunity is a
      defense not only from liability, but also from suit, it is “important for a
      court to ascertain the validity of a qualified immunity defense as early
      in the lawsuit as possible.” GJR Invs., Inc. v. County of Escambia, 132
      F.3d 1359, 1370 (11th Cir. 1998) (citation omitted).

284 F.3d at 1193-94.

      To be shielded from suit by qualified immunity, a public official must first

show that he was acting within the scope of his discretionary authority. See Vinyard

v. Wilson, 311 F.3d 1340, 1336 (11th Cir. 2002). If he does so, the burden then shifts

to the plaintiff to show, first, facts establishing that a constitutional violation

occurred, and second, that the constitutional right was clearly established at the time

of the violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L.

Ed. 2d 272 (2001). Here, it is undisputed that Deputy Segars was acting within the

scope of his discretionary authority at all material times.

                                           3
      On the first prong of Saucier, it is well-settled that an arrest without probable

cause violates the Fourth Amendment. See Durruthy v. Pastor, 351 F.3d 1080, 1088

(11th Cir. 2003), cert. denied, 125 S. Ct. 45 (2004). Probable cause to arrest exists

when an arrest is “objectively reasonable based on the totality of the circumstances.”

Lee v. Ferraro, 284 F.3d at 1195. “This standard is met when the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about to

commit an offense.” Id. (citations and quotation marks omitted).

      An officer is entitled to qualified immunity if there was even “arguable”

probable cause to arrest the defendant, regardless of whether the facts later establish

that probable cause did not exist. Durruthy, 351 F.3d at 1089. Whether the officer

acted without justification is measured by a purely objective standard of what a

reasonable officer in the defendant’s position would have perceived. See Nolin v.

Isbell, 207 F.3d 1253, 1256 n. 2 (11th Cir. 2000) (observing “the subjective intent of

an officer does not affect the existence of a Fourth Amendment violation”).

      Whitner argues qualified immunity was improvidently granted because no

reasonable officer would have believed that probable cause existed to arrest him for

obstruction of a law enforcement officer because his tractor-trailer vehicle was

                                          4
parked on a private, as opposed to a public, road at the time of his confrontation with

Deputy Segars on August 15, 2003. At the time of this confrontation, Deputy Segars

had been dispatched to the location in response to a call concerning a trailer parked

in the roadway of Chieftain Trail. Upon his arrival, a little after midnight, Deputy

Segars observed an unilluminated flatbed trailer parked at least four feet into the

roadway, at a point where Chieftain Trail broke off and curved away from Snowy

River Place. Segars explained that due to the configuration of the roads -- the trailer

was parked just around a bend -- he was concerned it posed a safety hazard since a

motorist coming around the bend might fail to see the trailer until it was too late.

      After calling a wrecker company to tow the trailer from the road, Deputy

Segars encountered Whitner at his nearby house and learned that the trailer belonged

to Whitner. Deputy Segars asked Whitner to move the trailer, which, again,

constituted a road hazard. During the ensuing exchange, Whitner refused to move the

trailer from the road in response to numerous requests by Segars and threatened to sue

Segars multiple times if the vehicle was towed. Whitner also proceeded to move the

tractor portion of the vehicle from his driveway onto the road and hitch it to the trailer

so that now both the tractor and the trailer were on the bend in the road where Segars

previously had indicated the trailer was a road hazard. Whitner then laid down in the

back of the trailer after a wrecker service was called, told Segars to “write it [the

                                            5
tractor-trailer] a ticket,” and again ignored Segars’s request to move the vehicle after

Segars told him it was a road hazard. The tractor and trailer subsequently were towed

and Segars arrested Whitner, charging him with obstruction of a law enforcement

officer and writing him a ticket for improper parking.

      Deputy Segars maintains that he is entitled to qualified immunity because his

belief that the road in question was a public road on which the traffic laws were

required to be enforced was a reasonable one and, after he asked Whitner to move the

vehicle, Whitner’s subsequent conduct obstructed the performance of Seger’s law

enforcement duties. We agree. As the district court put it:

      At best, however, the court finds that Whitner believed Chieftain Trail
      was a private road and that the Habersham Superior Court order
      [denying Whitner’s request for mandamus relief directing, inter alia, the
      County to maintain Chieftain Trail] supported his position. While
      Whitner argues that this information obligated Segars to determine
      whether he had lawful authority, Whitner has not cited any statutory or
      case law that clearly provided Segars with “fair and clear waning” that
      seeking to remove the tractor and trailer from Chieftain Trail and
      arresting Whitner for obstruction violated his Fourth Amendment rights.
      . . . It would appear that the plaintiff in this case was unhappy with a
      court ruling involving Chieftain Trail. It would appear that he was
      deliberately endeavoring to set a trap for the law enforcement officer,
      who apparently had no knowledge of the previous dispute but believed
      the road to be public.




                                           6
On this record, even if Deputy Segars was mistaken as to the private or public nature

of Chieftain Trail,2 we conclude that he had, at the very least, arguable probable cause

to arrest Whitner and have his vehicle removed after Whitner committed the

misdemeanor offense of obstruction of a law enforcement officer under Georgia law.3

       Simply put, a reasonable officer could have believed, in light of the information

Segars possessed, that he had probable cause to arrest for obstruction of a law

enforcement officer. See Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)

(holding that arguable probable cause exists when “an officer reasonably could have



       2
          In April 2002, Whitner had petitioned the Habersham County Superior Court for a writ of
mandamus directing the County to maintain Snowy River Place and Chieftain Trail, which were dirt
and gravel roads leading to Whitner’s house. The Superior Court denied mandamus relief, noting
that although the roads in question were public and “there has never been any limit to the public’s
access to use the road,” the County had not “accepted” the dedication and, thus, could not be ordered,
by a mandamus petition, to maintain it. In any event, we are satisfied that Deputy Segars’s belief
that the road was public and, thus, the traffic laws were enforceable on it, was a reasonable one. We
note that under Georgia law, Chieftain Trail meets the definition of a “public road” by virtue of the
undisputed fact that it is “open to the public and intended or used for its enjoyment and for the
passage of vehicles,” O.C.G.A. § 32-1-3(24).
       3
          The “essential elements” of misdemeanor obstruction of a law enforcement officer are: “(1)
knowingly and willingly obstructing or hindering, (2) any law enforcement officer, (3) in the lawful
discharge of his official duties.” Larkin v. State, 495 S.E.2d 605, 606 (Ga. Ct. App. 1998); see also
Berrian v. State, 608 S.E.2d 540, 541 (Ga. Ct. App. 2004). “‘The statute was made purposefully
broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law
enforcement officers in carrying out their duties.’” Berrian, 608 S.E.2d at 541 (quoting Weidmann
v. State, 476 S.E.2d 18 (Ga. Ct. App. 1996)). In this appeal, Whitner challenges the last element of
the crime, arguing that Segars was not in the lawful discharge of his duties because Chieftain Trail
was not a public road. We have dispensed with his argument concerning the public nature of the
road in the foregoing footnote and, accordingly, also conclude that Segars had a duty to enforce the
traffic laws on Chieftain Trail. See O.C.G.A. § 32-1-9 (imposing duty on law enforcement officers
to enforce traffic laws).

                                                  7
believed that probable cause existed, in light of the information the officer

possessed”).      Accordingly, Whitner has not stated a violation of his Fourth

Amendment rights, sufficient to satisfy the first prong of Saucier.4 Based on our de

novo review, the district court did not err by granting summary judgment based on

qualified immunity.

       AFFIRMED.




       4
          We add that even if Whitner could somehow meet the first prong of Saucier, he would not
succeed under the second prong because no law from the United States Supreme Court, the Georgia
Supreme Court, or this Court clearly established at the time of the incident that an officer could not
arrest an individual for obstruction of a law enforcement officer under these circumstances. See
Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n. 4 (11th Cir. 1997) (“In this
circuit, the law can be clearly established for qualified immunity purposes only by decisions of the
U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the
case arose.”) (internal quotations omitted).

                                                  8
