          Case: 16-10490   Date Filed: 06/16/2017   Page: 1 of 18


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10490
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:14-cv-00253-LMM


WBY, INC.,
d.b.a. Follies,
JOSHUA SCHINDLER,
STEVE YOUNGELSON,

                                                          Plaintiffs-Appellees,

                                 versus

DEKALB COUNTY, GEORGIA, et al.,

                                                                    Defendants,

JEFFERY RUTLAND,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 16, 2017)
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Before MARCUS, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

       Defendant-Appellant Jeffrey Rutland, a lieutenant with the DeKalb County

Police Department, appeals the district court’s order denying him qualified

immunity from Plaintiff-Appellee Joshua Schindler’s 42 U.S.C. § 1983 claim for

wrongful arrest in violation of the Fourth Amendment. After careful review, we

affirm the denial of qualified immunity.

                                       I. Background

       This case arises out of a police raid conducted by the DeKalb County Police

Department at Follies, an adult entertainment club, on April 19, 2013. The raid

allegedly was a “business check” for the purpose of ensuring Follies’s compliance

with the DeKalb County Code. This appeal narrow focuses on an interaction in the

Follies parking lot between Rutland, one of the officers on the scene, and

Schindler, who worked as a valet at Follies. 1

       Schindler works for “Valet for Life,” a valet car-parking company that had a

contract with Follies for valet services. When customers pull up to the valet

“staging” area in the Follies parking lot across from the front doors, Schindler

accepts the valet fee, gives a ticket to the driver, and then parks the car.


       1
         Schindler brought his claims jointly with Follies and its owner, Steve Youngelson, who
challenged the constitutionality of the raid itself, among other matters. Only Schindler’s § 1983
wrongful-arrest claim is at issue in this appeal.
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       On the day of the raid, Schindler was working his valet shift, preparing to

park a car that was in the staging area, when police officers drove into the parking

lot in a grey van, a black SUV, and several other marked and unmarked police

cars. The unmarked grey van pulled up directly behind the car where Schindler

was standing. Just after the van pulled up, Schindler began walking back towards

the front entrance of Follies, where the valet podium was located. Meanwhile,

numerous officers had exited the vehicles and were heading into Follies. As

depicted in the security footage2 below, Schindler (in khaki pants and a black long-

sleeved shirt by the silver car near the top-middle) was walking towards the front

entrance of Follies behind two of the police officers, while the other officers

approached Follies from the side. Rutland is at the top left of the picture.




       2
         The images in this opinion are screenshots from Follies’s security footage that have
been cropped to highlight the relevant details. The security footage does not have audio.
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       As Schindler walked back towards the valet podium, Rutland, who was near

a police vehicle off to Schindler’s right, approached him, began yelling for him to

“back down,” and demanded to know what he was doing. Rutland testified that he

believed Schindler was attempting to interfere with the officers who were entering

Follies. Schindler stopped, turned towards Rutland, and told him that he was a

valet and that he did not understand what was going on.

       Rutland came up extremely close to Schindler, standing between him and

the front entrance, and again yelled at Schindler to “back down.”                        Schindler

reiterated that he was a valet and asked why Rutland, who was “extremely lived,”

was taking such an aggressive tone with him. Schindler testified that he did not

understand what Rutland meant by “back down,” though he eventually took one

step backwards from Rutland (top-right picture below) and put his hands out low

and to his sides in a placating gesture. Rutland stepped forward and put his hand

on Schindler’s arm, while Schindler turned away from Follies. Another officer (in

the blue shirt) immediately ran over and helped Rutland take Schindler to the

ground.3 Schindler’s hands were zip-tied behind his back, and he was detained for

the remainder of the raid.




       3
          Rutland insists that the other officer, not Rutland, initiated the arrest, but the video is
ambiguous on the matter, and a reasonable jury could infer that Rutland at least participated in
Schindler’s arrest.
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      Between stopping at Rutland’s request and taking one step backwards,

Schindler remained standing in the same location, about one car’s length into the

parking lot just outside the front entrance. About 12 or 13 seconds elapsed from

when Rutland reached Schindler to when Schindler took one step backwards.

Schindler testified that he did not say anything to the other officers before Rutland

intervened, and that during his encounter with Rutland he did not yell, swear, or

respond in anger.

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       After the raid, Schindler was transported to the Dekalb County Detention

Center and charged with disorderly conduct. That charge was dismissed for want

of prosecution when Rutland and the other officer failed to show up for Schindler’s

trial date.

       After the charges against him were dropped, Schindler brought this civil-

rights lawsuit alleging claims of excessive force and false arrest under 42 U.S.C.

§ 1983 and related state-law claims. Following discovery, Rutland moved for

summary judgment and invoked the defense of qualified immunity with regard to

the § 1983 claims. Rutland argued that Schindler could not overcome the defense

of qualified immunity because there was “no law clearly establishing that

Defendant Rutland acted unlawfully . . . in arresting Plaintiff Schindler for

disorderly conduct.” The extent of Rutland’s analysis of Schindler’s wrongful-

arrest claim is as follows:

       With regard to the arrest of Plaintiff Schindler, the facts are
       undisputed that Rutland approached Schindler as he appeared to be
       trying to follow police into the club and asked Schindler multiple
       times to back away. Schindler admits he did not heed Rutland’s
       instructions but instead refused to back up. Because there is no law
       that makes Schindler’s arrest patently unlawful under this
       circumstance, Rutland is entitled to qualified immunity and the claims
       against him should be dismissed on summary judgment.

       Responding to Rutland’s summary-judgment motion, Schindler argued that

Rutland lacked probable cause to arrest for disorderly conduct. In reply, Rutland

contended for the first time that, even assuming Schindler was incorrectly charged
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with disorderly conduct, the arrest was still objectively valid because a reasonable

officer could have believed that Schindler’s failure to back away at an officer’s

command constituted obstruction of an officer under O.C.G.A. § 16-10-24(a).

      The district court granted in part and denied in part Rutland’s motion for

summary judgment.      In relevant part, the court denied qualified immunity to

Rutland for Schindler’s § 1983 wrongful-arrest claim, finding no arguable probable

cause to arrest Schindler for disorderly conduct. The court explained that the

undisputed facts showed only that Schindler briefly hesitated to obey an

instruction, and “merely hesitating to obey an instruction does not necessarily

amount to loud or boisterous behavior, nor does it necessarily show that Schindler

was trying to incite individuals to act against the officers.” The court did not

address Rutland’s arguments that there was arguable probable cause to arrest for

obstruction. Rutland timely appealed the denial of qualified immunity.

                               II. Standard of Review

      We review de novo a district court’s denial of summary judgment on

qualified-immunity grounds. Carter v. Butts Cty., Ga., 821 F.3d 1310, 1318 (11th

Cir. 2016).   Summary judgment is appropriate only when the moving party

demonstrates that no disputed issue of material fact exists. Id. In reviewing

whether summary judgment was appropriate, we must accept the non-movant’s

version of the facts as true and draw all reasonable inferences in his favor. Id. We


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do not make credibility determinations or choose between conflicting testimony.

Id. When a factual conflict exists in the evidence, we credit the non-moving

party’s version of events. Id. Accordingly, the qualified-immunity determination

must be based on the plaintiff’s version of the facts. Id.

                                   III. Discussion

      The defense of qualified immunity protects government officials from

individual liability when they are engaged in their job duties unless they violate

“clearly established federal statutory or constitutional rights of which a reasonable

person would have known.” Keating v. City of Miami, 598 F.3d 753, 762 (11th

Cir. 2013) (brackets and internal quotation marks omitted).             Thus, qualified

immunity “does not offer protection if an official knew or reasonably should have

known that the action he took within his sphere of official responsibility would

violate the constitutional rights of the [plaintiff].”       Carter, 821 F.3d at 1319

(internal quotation marks omitted).

      Officials asserting qualified immunity must first establish that they were

acting within the scope of their discretionary authority at the time of the alleged

misconduct. Id. Once they do, the burden shifts to the plaintiff to overcome the

defense of qualified immunity by showing “both that the officer’s conduct violated

a constitutionally protected right and that the right was clearly established at the

time of the misconduct.” Id.


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      There is no dispute that Rutland was acting within the scope of his

discretionary authority as a police officer. So we turn to the questions of whether

Rutland violated Schindler’s constitutional rights and whether those rights were

clearly established.

      “[I]t is well established that [a] warrantless arrest without probable cause

violates the Fourth Amendment and forms a basis for a section 1983 claim.”

Carter, 821 F.3d at 1319 (internal quotation marks omitted). But where probable

cause supports an arrest, it bars a § 1983 unlawful-arrest claim. Id. “Probable

cause to arrest exists if the facts and circumstances within the officer’s knowledge,

of which he 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. (internal quotation marks

omitted).   Probable cause determinations are evaluated objectively—that is,

without regard to the officer’s subjective intentions—and under the totality of the

circumstances. See id. As a result, “[t]he validity of an arrest does not turn on the

offense announced by the officer at the time of the arrest.” Lee v. Ferraro, 284

F.3d 1188, 1195–96 (11th Cir. 2002) (quoting Bailey v. Bd. of Cty. Comm’rs of

Alachua Cty., Fla., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992)).

      Even if probable cause is lacking, however, an officer is still entitled to

qualified immunity if arguable probable cause supported the arrest. Id. Qualified


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immunity therefore protects an officer if he reasonably but mistakenly believed

that probable cause was present. Carter, 821 F.3d at 1319–20. But “[w]here an

officer arrests without even arguable probable cause, he violates the arrestee’s

clearly established Fourth Amendment right to be free from unreasonable

seizures.” Id. at 1320.

A.       Rutland’s Theory of Probable Cause on Appeal

         On appeal, Rutland abandons any challenge to the district court’s conclusion

that there was not arguable probable cause to arrest Schindler for disorderly

conduct. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014) (issues not briefed on appeal are abandoned). In any case, even if the issue

were properly before us, we agree with the district court that, under Schindler’s

version of events, arguable probable cause to arrest for disorderly conduct did not

exist.

         Instead of relying on disorderly conduct, Rutland now charges Schindler

with having obstructed an officer under O.C.G.A. § 16-10-24(a).            However,

Rutland did not sufficiently present his current legal arguments and theories to the

district court. In his motion for summary judgment, Rutland never argued that

arguable probable cause to arrest for obstruction existed. Rather, he claimed

entitlement to qualified immunity because “no law clearly establish[ed] that

Defendant Rutland acted unlawfully . . . in arresting Plaintiff Schindler for


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disorderly conduct.” Rutland then broadly contended that “there [wa]s no law that

makes Schindler’s arrest patently unlawful under this circumstance.”            These

statements are not sufficient to “specifically and clearly” identify to the district

court that the arrest may have been justified under § 16–10–24(a). See Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330–31 (11th Cir. 2004) (any issue

that a litigant wants the court to address “should be specifically and clearly

identified”).

      Although Rutland did raise his current theory of probable cause in a reply

brief in support of his motion for summary judgment, reply briefs are not a vehicle

to present new arguments or theories. See Herring v. Sec’y, Dep’t of Corr., 397

F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, arguments

raised for the first time in a reply brief are not properly before a reviewing court.”)

(internal quotation marks omitted) (alterations adopted).          Because Rutland’s

current theory of probable cause was raised clearly in his reply brief only, it was

within the district court’s discretion to decline to address that theory.

      Thus, Rutland impermissibly attempts to “argue a different case” from the

one he “presented to the district court.” See Irving v. Mazda Motor Corp., 136

F.3d 764, 769 (11th Cir. 1998). But “theories not raised squarely in the district

court cannot be surfaced for the first time on appeal.” Wood v. Milyard, 132 S. Ct.

1826, 1832 (2012) (internal quotation marks omitted). Since Rutland did not


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“specifically and clearly” articulate his current theory of qualified immunity to the

district court at an appropriate time, we will not address its merits on appeal. See

Access Now, 385 F.3d at 1330–31. Although we may exercise our discretion to

address arguments raised for the first time on appeal, Rutland’s case does not

implicate the “exceptional conditions” that justify review of newly raised issues,

see id. at 1332–35 & n.4.

B.    Rutland is not Entitled to Qualified Immunity

      In any case, even assuming without deciding that the issue is properly before

us and that the district court erred by failing to evaluate whether arguable probable

cause to arrest Schindler for obstruction an officer existed, see Lee, 284 F.3d at

1195–96, Rutland still is not entitled to qualified immunity because, taking the

facts in the light most favorable to Schindler, no reasonable officer could have

believed that Schindler’s conduct constituted obstruction under Georgia law.

      Under Georgia law, “a person who knowingly and willfully obstructs or

hinders any law enforcement officer in the lawful discharge of his official duties is

guilty of a misdemeanor.” O.C.G.A. § 16-10-24(a). “The essential elements of

that crime 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).




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       Construed in the light most favorable to Schindler, the facts show that

Schindler, who was not being detained and who was not suspected of having

committed a crime, briefly hesitated to obey Rutland’s ambiguous instructions to

“back down,” after he had already stopped at the officer’s request and was standing

in the parking lot where he was working as a valet, while attempting to inform the

officer that he was the valet and to inquire as to what the officers were doing.

       Under these circumstances, Schindler’s statements to Rutland alone are not

sufficient to constitute obstruction under Georgia law. 4 Although Georgia courts

have held that “words alone can constitute obstruction,” the Georgia Court of

Appeals in Harris v. State reviewed Georgia case law and “found no case

upholding an obstruction conviction based solely upon a defendant’s act of

speaking to, remonstrating with, or even criticizing an officer during the

performance of his duties.” 726 S.E.2d 455, 458 (Ga. Ct. App. 2012) (noting that

deceiving an officer or interfering with an officer’s interview of a reporting party

may be sufficient to qualify as obstruction). Rather, there usually must be “words

plus something more.”         Id.   That “something more” may be the defendant’s

“refus[al] to comply with an officer’s directive or command” or the defendant’s

“threatening or violent” behavior. Id.


       4
           While Rutland testified that Schindler was yelling and cursing at him and the other
officers, Schindler denies doing so. We must credit Schindler’s version of events in making the
qualified-immunity determination. See Carter, 821 F.3d at 1318.
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      Schindler’s statements here did not even amount to criticism or challenge of

the officer, but rather were attempts to disclose information about his identity and

to understand why a significant number of officers were conducting a raid at his

place of employment. So the statements alone cannot establish arguable probable

cause to arrest. See Skop v. City of Altanta, 485 F.3d 1130, 1139 (11th Cir. 2007)

(“When, as under Skop’s version of the facts, an individual . . . simply reiterates or

attempts to clarify a perfectly reasonable question directed to the officer, there is

neither probable cause nor arguable probable cause to arrest for obstruction.”);

Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006) (“Neither an owner’s simple

inquiry as to why officers are present on his property nor a person’s attempt to

bring a dangerous situation to the officer’s attention can be construed as

obstruction of justice or disorderly conduct. Nor can a citizen be precluded by the

threat of arrest from asking to speak to an officer’s superior or from asking for an

officer’s badge number. Those inquiries likewise do not constitute obstruction of

justice or disorderly conduct.”).

      Rutland mainly argues that Schindler’s repeated refusal to comply with

commands to back away from Follies constituted obstruction. Under the facts of

this case, construed in Schindler’s favor, we disagree.

      Initially, we note that Georgia law clearly provides that citizens have no

freestanding obligation to comply with a police officer’s requests when the officer


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is not discharging a lawful duty.       For example, when an officer detains an

individual without reasonable suspicion, the “citizen is free to ignore requests

and/or to walk away, and . . . no charge of obstruction [will] lie.” Strickland v.

State, 594 S.E.2d 711, 715–16 (Ga. Ct. App. 2004). In other words, the simple fact

that Schindler may have hesitated in complying with Rutland’s requests to “back

down” is not alone sufficient to show obstruction under the facts of this case.

Rather, Schindler’s brief hesitation must have obstructed or hindered the lawful

discharge of either Rutland’s or another officer’s official duties. The official duties

relevant to this case are the officers’ execution of a police operation at Follies. So

the question is whether Schindler’s conduct hindered or obstructed the execution of

those duties.

      Construing the facts in the light most favorable to Schindler, we cannot

conclude that his brief hesitation in complying with Rutland’s command to “back

down” was sufficient to supply even arguable probable cause to believe that

Schindler obstructed the lawful execution of a legal duty. Schindler’s conduct

amounted to no more than a “mere failure to immediately respond” to a police

officer’s orders, which, without more, is insufficient to show obstruction under

§ 16-10-24(a). Martinez v. State, 743 S.E.2d 621, 623 (Ga. Ct. App. 2013); Coley

v. State, 344 S.E.2d 490, 490 (Ga. Ct. App. 1986).




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       In Coley, for example, an officer was dispatched to investigate a domestic

disturbance between the defendant and his wife. 344 S.E.2d at 490. When the

officer arrived, the defendant, who was “committing no offense,” was walking

back towards his pickup truck, the passenger door of which was open.                       The

defendant’s wife shouted, “He’s got a gun,” prompting the officer to order the

defendant to move away from the truck. The defendant “did not do so.” The

officer repeated his order, and the defendant changed tack and began walking

towards the house. The officer then twice ordered the defendant to stop. When the

defendant did not stop, the officer ran up and conducted an arrest. The Georgia

Court of Appeals found nothing in this evidence to support the conclusion that the

defendant “obstructed or hindered [the officer] in any way in the performance of

his duty.” “At most,” the court explained, “he did not respond immediately” to the

officer’s orders. Id. And the mere failure “respond immediately” to an officer’s

orders is “insufficient” to constitute obstruction. Id. at 491.

       Here, like the defendant in Coley, Schindler did “nothing more than fail to

respond immediately to [Rutland’s] orders.” 5 Id. At the time that Schindler briefly


       5
           Rutland argues that the cases Schindler relies upon have all been disapproved or
overruled, but, as far as we are able to tell, Coley has never been disapproved. Even within one
of the cases Rutland cites for the purpose of showing such disapproval, the court did not
disapprove of Coley and instead distinguished it based on its facts, implicitly recognizing that
Coley remains good law. Stryker v. State, 677 S.E.2d 680, 682–83 (Ga. Ct. App. 2009).
Numerous other cases have likewise factually distinguished Coley while recognizing the validity
of its holding. See, e.g., Davis v. State, 706 S.E.2d 710, 717 n.26 (Ga. Ct. App. 2011) (finding
Coley “inapposite” but citing it for the proposition that a “defendant’s mere failure to
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hesitated to comply with Rutland’s commands to “back down,” Schindler was

stopped well outside of Follies’s front door in the parking lot where he was

employed as a valet, he was not being detained nor was he suspected of having

committed a crime, he was not interfering with any officer’s freedom of movement

into or out of Follies, and he was not, as Rutland asserts, “interpos[ing] himself in

the middle of the operation,” whatever Rutland may have believed about

Schindler’s initial intentions. In fact, once he had stopped at Rutland’s approach,

Schindler made no significant move other than to step backwards. While Schindler

did speak to Rutland, Schindler testified that he was not argumentative or hostile

during their brief interaction. See id. at 490. Accordingly, we see no evidence

from which a reasonable officer in Rutland’s position could have concluded that

Schindler “obstructed or hindered [an officer] in any way in the performance of his

duty.” Id.

       Rutland’s reliance on Mayhew v. State, 682 S.E.2d 594, 596–98 (Ga. Ct.

App. 2009), is misplaced. The obstructive conduct in that case was not simply




immediately follow police orders was insufficient to show obstruction”); West v. State, 673
S.E.2d 558, 561 (Ga. Ct. App. 2009) (“In Coley, the defendant refused to comply with the
officer’s orders to move away from a truck and to stop. We reversed his conviction for
obstruction because there was no evidence that the defendant obstructed or hindered the officer,
noting that the defendant did not “speak to, or argue with, [the officer]. At most, he did not
respond immediately to [the officer’s] orders.”); Johnson v. State, 507 S.E.2d 13, 15 (Ga. Ct.
App. 1998) (distinguishing Coley and noting that, in Coley, “the defendant committed no crime
in the officer’s presence . . . [,] [n]or did he argue with the officer”); Reed v. State, 422 S.E.2d
15, 17–18 (Ga. Ct. App. 1992) (distinguishing Coley on its facts).
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failing to move back immediately when told to do so. Rather, the defendant in

Mayhew repeatedly refused to comply with the officer’s requests to step back and

stop yelling while the officer was attempting to interview another individual as part

of the officer’s investigation into an emergency call. See id. at 596–97. Thus, the

defendant’s refusal to comply with the officer’s repeated requests plainly

obstructed the officer’s investigation into the emergency call. Id. at 598.

      In sum, because Schindler’s conduct amounted to no more than a failure to

respond immediately to Rutland’s orders while informing the officer of his status

as a valet and questioning what the officers were doing at Follies, it cannot

reasonably be construed as obstructing or resisting the exercise of a lawful duty.

Accordingly, we affirm the district court’s denial of qualified immunity to Rutland

on Schindler’s § 1983 claim for unlawful arrest.

      AFFIRMED.




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