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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-11475
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 2:18-cv-00022-LGW-BWC



JOE T. YOUNG,

                                                                Plaintiff-Appellee,

                                  versus

DAVID BRADY,

                                                           Defendant-Appellant.

                        ________________________

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

                             (November 7, 2019)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

     David Brady, a game warden with the Georgia Department of Natural
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Resources (“DNR”), appeals the district court’s denial of his motion for summary

judgment on qualified immunity grounds. He argues that the district court erred

because he did not violate a Fourth Amendment right of the plaintiff, Joe Young,

and even if he did, such a right was not clearly established.

      The relevant facts are as follows. On August 27, 2017, Young parked his

truck in a gravel parking lot underneath the bridge at Sidney Lanier Park and was

resting inside of it. He had his windows up and a green- and grey-colored sleeping

bag in the bed of his truck. Officer Brady parked his truck near Young’s and

approached, asking Young if he was “okay” and asking him to roll his window

down. At this point, Young waved his arms at Brady, indicated that he didn’t want

to speak with him, and drove off at a slow speed. Brady walked back to his car

and radioed in that Young was “pulling off” from him. Young drove, at most,

several hundred feet away to another nearby parking lot in the Park. Brady pulled

up behind him less than thirty seconds later.

      After getting out of his truck, Brady approached Young, who was agitated,

and confirmed that he was stopping him. Brady asked Young to get out of the

vehicle and Young inquired as to why. After about a minute of back and forth,

Young got out of the truck and Brady handcuffed him. He reached into Young’s

pocket, pulled out his wallet, and ran Young’s driver’s license. After uncovering

no outstanding warrants or other issues, Brady uncuffed Young and allowed him to


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leave.

         Young filed suit against Brady in state court and represented himself pro se,

alleging that while he was handcuffed, surgical sutures from a recent surgery were

pulled out, causing him personal injury. Brady properly removed the case to the

Southern District of Georgia. Young subsequently filed a motion for summary

judgment, asserting that Brady had no “probable cause” to stop him, Brady acted

unreasonably, and there was no genuine issue of material fact. Young filed a

second motion for summary judgment, which largely reiterated and reincorporated

the same arguments set forth in his first motion. Brady filed a cross-motion for

summary judgment arguing, inter alia, that Young’s claim was barred by the

doctrine of qualified immunity. He argued that he had reasonable suspicion to stop

Young because Young had a large bag in the bed of his truck, which appeared to

be the type used by illegal palmetto berry harvesters in southern Georgia during

that time of year; it was the middle of palmetto berry harvesting season; Young

drove away from him; and Young exhibited “highly agitated and uncooperative

behavior.” In response to Brady’s cross-motion for summary judgment—as well

as the evidence that Brady submitted in support of his motion—Young filed a

motion in limine to exclude all of Brady’s evidence relating to palmetto berry

harvesting.

         The district court held a hearing on both parties’ motions. During the


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hearing, the court inquired as to what circumstances would make Brady suspect

that Young was engaging in illegal palmetto berry harvesting. Brady’s counsel

responded that Brady was suspicious of Young’s sleeping bag, which he

apparently suspected was a bag used to harvest palmetto berries. He also pointed

out that, although no berry harvesting occurred in Sidney Lanier Park, harvesting

generally occurred in southern Georgia during that time of the year. This, he

argued, combined with Young’s departure, created the requisite arguable

reasonable suspicion for Brady to stop Young. Young responded that Brady had

never mentioned palmetto berries in any of his legal filings up until that point, and

that Brady’s counsel had violated the Federal Rules of Civil Procedure by failing to

disclose any evidence relating to palmetto berries until discovery had closed.

Following the hearing, Brady filed a supplement to his cross-motion for summary

judgment, largely incorporating the arguments he made at the hearing.

      The district court denied both motions for summary judgment, finding that

Brady was not entitled to qualified immunity. It concluded that the “observance of

an unfurled, flattened sleeping bag in the bed of a parked truck in a public park in

the middle of the day is not a particularized and objective basis establishing

reasonable suspicion of criminal activity—no matter what berry-picking season it

is.” It further concluded that Young driving away from Brady when Brady

approached him was not enough to establish reasonable suspicion. Brady timely


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appealed to us. 1

       On summary judgment, a district court’s denial of qualified immunity is an

immediately appealable collateral order if it solely concerns the pure legal decision

of “(1) whether the implicated federal constitutional right was clearly established

and (2) whether the alleged acts violated that law.” Koch v. Rugg, 221 F.3d 1283,

1294 (11th Cir. 2000) (emphasis omitted).

       We review de novo “a district court’s disposition of a summary judgment

motion based on qualified immunity, applying the same legal standards as the

district court.” Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). We

“resolve all issues of material fact in favor of the plaintiff and “then answer the

legal question of whether the defendant is entitled to qualified immunity under that

version of the facts.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002)

(quoting Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th Cir. 1998))

(alterations omitted). Further, because we construe pro se pleadings liberally, for

the purposes of our review here, “we state the facts as alleged in [plaintiff’s]

liberally-construed complaint, viewed in the light most favorable to him.” Dixon

v. Hodges, 887 F.3d 1235, 1237 (11th Cir. 2018). We do not limit our

consideration of the evidence to undisputed facts based on local rules when the


1
 After this, the district court denied Young’s motion in limine without prejudice because the
case was on appeal, and left open the possibility that Young could refile the motion if we
affirmed the denial of Brady’s motion for summary judgment.
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district court has not done so. Atwater v. Nat’l Football League Players Ass’n, 626

F.3d. 1170, 1175 n.5 (11th Cir. 2010).

      Qualified immunity protects a defendant from liability for a § 1983 claim

arising from discretionary acts, “as long as the discretionary acts do not violate

clearly established federal statutory or constitutional rights of which a reasonable

person would have known.” Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir.

2000). Once an official demonstrates that he was performing a discretionary

function, the plaintiff has the burden to prove that the defendant is not entitled to

summary judgment on qualified immunity grounds. Holloman v. Harland, 370

F.3d 1252, 1264 (11th Cir. 2004).

      To show that a defendant is not entitled to summary judgment on qualified

immunity grounds, the plaintiff must show that a reasonable jury could find both

that the defendant violated a constitutional right and that the constitutional right

was clearly established. Id. at 1267. We have held that

      [a] right may be clearly established for qualified immunity purposes in
      one of three ways: (1) case law with indistinguishable facts clearly
      establishing the constitutional right; (2) a broad statement of principle
      within the Constitution, statute, or case law that clearly establishes a
      constitutional right; or (3) conduct so egregious that a constitutional
      right was clearly violated, even in the total absence of case law.

Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1291–92 (11th Cir. 2009)

(citations omitted). “Exact factual identity with a previously decided case is not

required,” but rather, the key inquiry is whether the law provided the official with
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“fair warning” that his conduct violated the constitution. Coffin v. Brandau, 642

F.3d 999, 1013 (11th Cir. 2011) (quotation marks omitted). This inquiry “must be

undertaken in light of the specific context of the case, not as a broad general

proposition.” Id. (quotation marks omitted). However, if there is no caselaw

directly on point, general statements of the law and the reasoning of prior cases

may provide fair warning of unlawful conduct if they “clearly apply” to the novel

factual situation at issue. Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th

Cir. 2005).

      When an official asserts qualified immunity for an alleged Fourth

Amendment violation, the question is not whether the official had actual

reasonable suspicion, but whether the official had “arguable” reasonable suspicion.

Jackson, 206 F.3d at 1166. In other words, we consider whether an official had

reasonable suspicion as “an objective question viewed from the standpoint of a

reasonable official at the scene” and based on the totality of the circumstances.

Hicks v. Moore, 422 F.3d 1246, 1252 (11th Cir. 2005) (quotation and internal

marks omitted). Whether an official has arguable reasonable suspicion is a

question of law also reviewed de novo. See Evans v. Stephens, 407 F.3d 1272,

1280 (11th Cir. 2005) (en banc). We consider the totality of the circumstances “in

light of the officer’s own experience” and determine “whether the officer can point

to specific and articulable facts which, taken together with rational inferences from


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those facts” support an “objectively reasonable suspicion that [the defendant] had

engaged . . . in a crime.” United States v. Caraballo, 595 F.3d 1214, 1222 (11th

Cir. 2010) (quotation marks omitted, alteration in original).

      Under the Fourth Amendment, an official can address questions to a person

at any time, and that person is free “to ignore his interrogator and walk away.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980) (quotation marks omitted).

However, an official may conduct a brief, investigatory stop, otherwise known as a

“Terry stop,” if he has a reasonable suspicion of criminal activity. See Jackson,

206 F.3d at 1165. Though reasonable suspicion is a less demanding standard than

probable cause, the Fourth Amendment nonetheless requires a minimum level of

objective justification for an official to make a Terry stop. Id. This objective

justification must exist at the onset of the stop. Hiibel v. Sixth Judicial Dist. Ct. of

Nev., 542 U.S. 177, 188 (2004). Objective justification does not exist based on a

mere refusal to cooperate with the official. Florida v. Bostick, 501 U.S. 429, 437

(1991); Florida v. Royer, 460 U.S. 491, 498 (1983) (stating that a person

approached by the police may decline to listen to the questions and go on his way

without furnishing the necessary objective grounds for reasonable suspicion).

      Unprovoked flight upon noticing the police, on the other hand, is different

from a mere refusal to cooperate and can be grounds for reasonable suspicion.

Illinois v. Wardlow, 528 U.S. 119, 125 (2000). “Obviously the speed of the


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suspect’s movements may be relevant in the totality of the circumstances,” but the

speed “does not itself change the analysis where it is evident from the

circumstances that he was attempting to flee upon sighting the police.” United

States v. Gordon, 231 F.3d 750, 757 (11th Cir. 2000). Though departure from the

scene does not necessarily indicate wrongdoing, “a reasonable suspicion of

criminal activity may be formed by observing exclusively legal activity,” and an

officer may conduct a Terry stop to resolve any ambiguity between criminal and

noncriminal behavior. Id. at 754; Wardlow, 528 U.S. at 124-25 (stating that

headlong flight suggests, but does not necessarily indicate, wrongdoing and that

Terry recognized an officer’s ability to detain individuals to resolve an ambiguity).

      After a careful review of the facts—and after construing the facts in the light

most favorable to the plaintiff—we affirm the district court’s decision. While

arguable reasonable suspicion sets a low bar, we cannot say that Brady’s actions

here cleared it.

      We begin by noting that Officer Brady was acting within his “discretionary

authority” at the point that Young was seized because he “was (a) performing a

legitimate job-related function (that is, pursuing a job-related goal), (b) through

means that were within his power to utilize.” Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1265 (11th Cir. 2004), and Young does not argue

otherwise. Accordingly, the burden then shifts to Young to prove that (1) Brady


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violated a constitutional right that (2) was clearly established at the time of the

alleged violation. Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009).

      Regarding the first element, we conclude that Brady violated Young’s

constitutional rights—specifically, Young’s rights under the Fourth Amendment—

when he seized him. As a preliminary matter, Young was “seized” within the

context of the Fourth Amendment when Brady approached his car for the second

time, because a reasonable person would not have felt free to leave at that point.

Mendenhall, 446 U.S. at 554. Indeed, Officer Brady verbally confirmed to Young

at this point—and not before—that he was pulling Young over.

      The import of this conclusion is that, at this point, Brady must have

reasonably believed that he had arguable reasonable suspicion to effectuate the

investigatory stop. Jackson, 206 F.3d at 1166. In other words, he must have

reasonably believed that “specific and articulable facts which, taken together with

rational inferences from those facts,” supported an “objectively reasonable

suspicion that [the plaintiff] had engaged . . . in a crime.” See Hiibel, 542 U.S. at

188; Caraballo, 595 F.3d at 1222.

      Brady’s arguments that he had the requisite suspicion fit into three

categories: (1) he suspected Young was engaging in illegal palmetto berry

harvesting; (2) Young drove away from him when Brady first approached him; and

(3) Young was belligerent when he was pulled over. We can summarily dispose of


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the third argument. Brady was required to have arguable reasonable suspicion at

the time that Young was seized, not thereafter. Young’s agitated demeanor was

not apparent until after he was seized, and thus cannot be a basis for Brady’s

arguable reasonable suspicion. We next address the first two arguments in turn.

      First, we are unpersuaded by Brady’s argument that his suspicions of illegal

palmetto berry harvesting justified his seizure of Young. His argument is

essentially that this suspicion was justified merely because Young was in the

general region of the state in which the illegal harvesting occurred, at around the

time it occurred, and he had a sleeping bag in the bed of his truck.

      In support of this argument, Brady points to, inter alia, an affidavit from

Brian Clavier, the Chief of Law Enforcement for the Georgia Forestry

Commission. Clavier’s affidavit explains that illegal palmetto berry harvesting

primarily happens around Dixon State Forest, near Brunswick, Georgia, between

August and October of each year, with a large percentage of the harvest occurring

in August. Along with his affidavit, Clavier submitted the DNR Law Enforcement

Division’s Weekly Report for the week of August 13, the week before Young’s

seizure. The weekly report details a “bust” that took place on August 14, in which

rangers recovered 1,800 pounds of palmetto berries near Waycross, Georgia. The




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report includes a picture of the bust, which shows brown and clear bags,2 some of

which had emblems on them, stuffed with palmetto berries.

       Arguable reasonable suspicion requires more than Brady points to. The

location of Sidney Lanier Park does not lend itself to arguable reasonable

suspicion. The Park is located nearly 60 miles and over an hour away from Dixon

State Forest, where the uncontroverted evidence shows that the overwhelming

majority of the harvesting takes place. The Park is located a similar distance away

from Waycross, the location of the only mentioned “bust” in the record. Indeed,

Brady concedes that no illegal harvesting takes place at Sidney Lanier Park itself.

[Doc. 50 at 6–9.]

       Similarly, we find the date on which the seizure took place to be equally

unpersuasive. Though we noted in Caraballo, 595 F.3d at 1222, that the time of

year can be a factor in finding that reasonable suspicion of illegal harvesting

existed, we did not hold that the time of year, standing alone, conferred reasonable

suspicion where it otherwise did not exist.

       But Brady’s main argument here concerns Young’s sleeping bag. He argues

that he believed that the sleeping bag was the kind of bag used by illegal berry



2
  The copy of the Weekly Report in the record is in black-and-white, [Doc. 44-4], but because
the Weekly Report is easily accessible online, Ga. Dep’t of Natural Res. Law Enforcement Div.,
Weekly Report: August 13 – 19, 2017, https://gadnrle.org/sites/default/files/le/pdf/LE-
Reports/2017/August%2013th-August%2019th.pdf, we take judicial notice of the color of the
bags based on the color pictures available online. See Fed. R. Evid. 201(b)(2).
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harvesters. We conclude that this argument doesn’t track with the events depicted

in the footage from his body camera. Both times that Brady approached the truck,

he obviously saw the sleeping bag lying on top of the truck bed—it was broad

daylight and Brady got within three or four feet of the bag. And though Brady’s

argument on appeal is that he needed to seize Young to further investigate the

sleeping bag for potential palmetto berry harvesting, [Blue Br. at 30], he got an

equally good, if not better, look at the sleeping bag minutes earlier when he first

approached Young’s truck. The footage shows Brady approaching Young’s truck

and getting close enough that he was able to put his hand on the driver-side

window. At that point, Brady was close enough to the bag that he undoubtedly

would have been able to determine it was a sleeping bag. Indeed, the footage

shows that there was a tarp covering the bed of the truck, and the sleeping bag was

lying on top of the tarp in plain view—it wasn’t rolled up, instead completely

unrolled and flat, lending itself to easy identification.

      In any event, we doubt Brady’s depiction of the events in question. When

he seized Young—that is, when he approached Young’s truck for the second

time—he did not so much as touch the sleeping bag. And quite inconsistent with

Brady’s later testimony at the summary judgment stage, the sleeping bag did not

appear in the footage to be stuffed with palmetto berries; rather, it was lying

unrolled and flat. Moreover, at the scene, the footage shows that Brady gave as his


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reason for stopping Young that he was concerned Young was “okay”—a far cry

from the reason given for the first time at summary judgment, i.e., that he was

suspicious that Young was engaged in illegal palmetto berry harvesting.

      Here, Brady’s legal argument is that it is irrelevant that his suspicions turned

out to be unfounded. Instead, he argues, “what matters is the objective

reasonableness of the suspicion that led to the investigative detention before he

could complete his investigation.” [Blue Br. at 29] But this argument cuts against

him. We determined earlier—and Brady doesn’t contest—that Brady seized

Young the second time that he approached Young’s truck. By that point, Brady

had already been quite close to Young’s truck—indeed, close enough to touch the

window—and was easily capable of determining that Young’s sleeping bag bore

no resemblance to palmetto berry harvesting bags. Therefore, by the time that

Brady seized Young, there were no “objective facts” on which arguable reasonable

suspicion could have been based, see United States v. Harris, 526 F.3d 1334, 1337

(11th Cir. 2008), and Brady could not have reasonably concluded otherwise.

      Based on the totality of the circumstances, we conclude that Officer Brady

did not have arguable reasonable suspicion that Young was engaged in illegal

palmetto berry harvesting. Young’s location in a general region of the state during

the quarter of the year in which certain illegal activity takes place, coupled with an

unfurled sleeping bag in the back of his truck, did not provide Brady with specific


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and articulable facts that supported his suspicion. Holding that these factors

presented reasonable suspicion would simply cast too wide of a net. 3

       We next move to Brady’s argument that he had reasonable suspicion

because Young drove away when Brady first approached him. As the district court

found, Young drove away from Brady at a slow speed. His brake lights were on as

he drove away, indicating that he wasn’t traveling very quickly, a point

emphasized by the video footage. After Brady exited the parking lot, Officer

Brady walked back to his truck without any sense of urgency, and calmly informed

his dispatcher, “Subject’s pulling away from me.”

       We are mindful that the Supreme Court has held that a person approached by

law enforcement is entitled to “ignore his interrogator and walk away.”

Mendenhall, 446 U.S. at 554. Refusal to answer an officer’s questions does not,

without more, establish reasonable suspicion. Royer, 460 U.S. at 498. We have

previously held, however, that the speed at which a defendant flees, and whether

they engaged in “[f]light from law enforcement officials,” factor into the totality of

the circumstances. Gordon, 231 F.3d at 757; United States v. Willis, 759 F.2d

1486, 1497 (11th Cir. 1985).

       Here, based on the totality of the circumstances, we cannot say that Young’s


3
  In this vein, the Sixth Circuit held in United States v. See, 574 F.3d 309, 314 (6th Cir. 2009),
that “context-based factors that would have pertained to anyone” in a given area at a given time
“should not be given undue weight.”
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short travel from the parking lot under the bridge in Sidney Lanier Park to a nearby

parking lot created arguable reasonable suspicion. To that end, we disagree with

Brady’s characterization that Young “fled” from Brady; the bodycam footage

plainly shows that Brady drove off at a slow speed, parked a few hundred feet

away from his original destination, and immediately yielded to Officer Brady once

he realized that he was being stopped.4

       After concluding that Brady violated Young’s constitutional rights, we reach

the second step of our qualified immunity analysis, where we question whether

these rights were clearly established at the time of the violation. Here, we again

note that we conduct this inquiry “in light of the specific context of the case, not as

a broad general proposition.” Coffin, 642 F.3d at 1013. It is not in serious dispute

that Young possessed the right to be free from an unreasonable search and seizure

under the Fourth Amendment. We also conclude that, in light of the specific

context of this case, his right in this instance was also clearly established.

       Viewing the facts in the light most favorable to Young, Brady did not have

arguable reasonable suspicion to conduct a Terry stop. A reasonable official at the

scene would not have believed that illegal palmetto berry harvesting, or any other


4
  We also note that “flight” is different from merely walking or driving away. The cases that we
cited in Willis, 759 F.2d at 1497 n.4, are readily distinguishable from the conduct at issue here
because they involved hasty, inherently suspicious activity, e.g., “hasty grabbing of bag and
exiting after airport officials decided to search for weapons” and “making u-turn and driving
away from border checkpoint.” 759 F.2d at 1497 n.4 (citing United States v. Herzbrun, 723 F.2d
773 (11th Cir. 1984); United States v. Macias, 546 F.2d 58 (5th Cir. 1977)).
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crime, was occurring based on Young sitting in his parked car in a public park with

a sleeping bag on his truck bed and then, after waving away the approaching

officer, driving away, slowly, to another parking lot not more than several hundred

feet away in the same park. Therefore, Brady violated Young’s Fourth

Amendment right to leave a police encounter and not be stopped without

reasonable suspicion. Furthermore, such a right was clearly established at the time

because, even though there is no caselaw directly on point with the facts of this

case, the general principle that a person can walk away from a mere police

encounter is established by the caselaw, clearly applies here, and would give fair

notice to Brady that Young waving him away and driving off was not enough to

establish reasonable suspicion. Fourth Amendment caselaw clearly distinguishes

between someone disinterestedly leaving a situation involving a police officer—as

happened here—and someone “fleeing” from law enforcement. Compare

Mendenhall, 446 U.S. at 553, with Willis, 759 F.2d at 1497.

       Young has thus met his burden of showing that a reasonable jury could find

that Brady violated a clearly established Fourth Amendment right. Accordingly,

we conclude that the district court did not err in denying Brady’s motion to dismiss

on qualified immunity grounds. 5


5
 In the course of Brady’s appeal, Young filed a Motion to Incorporate Motion In Limine. As
discussed earlier, the district court denied Young’s motion in limine without prejudice and
explicitly stated that it may reconsider his motion if we affirmed the district court’s decision.
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       AFFIRMED.




Young did not appeal from this decision. In any event, because his motion is outside the scope
of this interlocutory qualified immunity appeal, we deny it without discussion.
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