                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11959                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               JUNE 10, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                            D.C. Docket No. 1:09-cv-00050-WS-C

MURRAY G. LAWRENCE,

lllllllllllllllllllll                                          Plaintiff - Appellee,

                                              versus

CITY OF FAIRHOPE, ALABAMA,
WENDELL THOMAS,

lllllllllllllllllllll                                           Defendants - Appellants.

                                ________________________

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

                                        (June 10, 2011)

Before EDMONDSON, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         On January 26, 2007, Murray G. Lawrence, an African-American male, was
walking through a neighborhood in the City of Fairhope, Alabama, with three

white male associates when Lawrence called out to a passing police patrol car. A

verbal exchange ensued; within a few minutes, Officer Wendell Thomas arrested

Lawrence for disorderly conduct and took him to jail in handcuffs. On January 29,

Officer Thomas filed a criminal complaint against Lawrence for congregating with

another person in a public place and refusing to comply with a lawful order of the

police to disperse. Lawrence was convicted in municipal court but subsequently

acquitted by a jury on appeal in a circuit court. He then brought the lawsuit that is

the subject of this appeal against Officer Thomas and Thomas’s employer, the City

of Fairhope, Alabama (collectively, “Appellants”), requesting compensatory and

punitive damages, as well as costs and attorneys’ fees.

      The district court granted Officer Thomas qualified immunity with respect

to Lawrence’s constitutional claims related to false arrest, false imprisonment, and

assault and battery, but denied summary judgment based on qualified immunity

with respect to Lawrence’s constitutional claim for malicious prosecution.

Additionally, the court denied Officer Thomas’s motion for summary judgment on

the grounds of statutory immunity as to Lawrence’s state-law claims, which

include false arrest, false imprisonment, malicious prosecution, and assault and

battery. Further, the district court granted summary judgment in favor the City of

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Fairhope with respect to Lawrence’s state-law claims for false imprisonment,

malicious prosecution, and negligent training and supervision, but denied

summary judgment with respect to the state-law claims for false arrest and assault

and battery.

       In this interlocutory appeal, Appellants argue that the district court erred by

denying summary judgment as to their defenses of (1) qualified immunity for

Lawrence’s constitutional malicious-prosecution claim against Officer Thomas

and (2) statutory immunity for Lawrence’s state-law claims of assault and battery

and false arrest against Appellants, and (3) statutory immunity for false

imprisonment and malicious prosecution against Officer Thomas.1

                                         DISCUSSION

       “We review de novo the denial of a motion for summary judgment based on

qualified immunity.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir.

2010). Summary judgment is appropriate when the pleadings, discovery materials

on file, and affidavits fail to raise a genuine issue of material fact. Id. We view

the record evidence and draw all reasonable inferences from that evidence in the


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         As the district court noted, Lawrence’s complaint was “not a model of clarity.” Because
“[t]he complaint contain[ed] no specific identification as to whether any given count [wa]s
brought as a state claim, a constitutional claim, or both,” the district court interpreted the claims
as described above. The parties appear to adopt the district court’s characterization of
Lawrence’s claims in their briefs, so this Court will do the same.

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light most favorable to the nonmovant so long as such inferences are supportable

by the record. Id.

1.    Qualified Immunity for Constitutional Claim of Malicious Prosecution

       In denying qualified immunity, the district court found that Appellants

failed to make the required threshold showing that Officer Thomas was acting

within his discretionary authority when he initiated a criminal complaint against

Lawrence. It further stated that, even if Appellants had successfully made this

showing, the evidence in the record—viewed in the light most favorable to

Lawrence—does not establish that Officer Thomas had probable cause to institute

criminal proceedings. We agree on both grounds.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To receive qualified immunity,

the public official must first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts occurred.” Wood v.

Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (internal quotation marks omitted).

Further, “[to] determine whether an official was engaged in a discretionary

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function, [courts] consider whether the acts the official undertook are of a type

that fell within the employee’s job responsibilities.” Crosby v. Monroe Cnty., 394

F.3d 1328, 1332 (11th Cir. 2004) (internal quotation marks omitted).

      Here, we find that Appellants failed to satisfy this threshold showing with

respect to Lawrence’s malicious-prosecution claim. As the district court noted,

Appellants made no assertion and showed no facts suggesting that filing the

criminal complaint three days after the arrest was within Officer Thomas’s

discretionary authority. Cf. Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282

(11th Cir. 1998) (“A bald assertion that the [officer’s] act[ion]s were taken

pursuant to the performance of duties and within the scope of duties will not

suffice.” (internal quotation marks omitted)). Merely stating that Officer Thomas

was a law enforcement officer employed by the City of Fairhope on the date of the

events at issue is insufficient. See id. Also insufficient is asserting that Officer

Thomas was acting within the scope of his authority when he arrested Lawrence.

      But even assuming that Officer Thomas had established that he was acting

within his discretionary authority, he still would not be entitled to qualified

immunity because he lacked probable cause for filing the criminal complaint.

“Once the defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that qualified immunity is not

                                           5
appropriate.” Wood, 323 F.3d at 877 (internal quotation marks omitted). To do

so, the plaintiff must first show facts establishing a constitutional violation. Id. A

plaintiff seeking to establish a malicious-prosecution claim after acquittal must

prove, inter alia, that the officer lacked probable cause for charging the crime in

the first place. Hartman v. Moore, 547 U.S. 250, 258, 265–66 (2006). If the

plaintiff’s allegations taken as true establish a constitutional violation, the

question becomes whether the right was clearly established. Wood, at 323 F.3d at

878. The parties both concede that the success of Lawrence’s malicious-

prosecution claim turns on whether Officer Thomas had probable cause.

      We agree with the district court that, based on Lawrence’s version of the

facts surrounding his arrest for disorderly conduct, Officer Thomas lacked

probable cause for filing the criminal complaint against Lawrence. The January

29 criminal complaint expressly charges Lawrence with a violation of subsection

(6) of Ala. Code § 13-A-11-7(a), which provides that a person who “[c]ongregates

with other person [sic] in a public place and refuses to comply with a lawful order

of the police to disperse” may be arrested for disorderly conduct. However, as the

district court noted, there is conflicting evidence as to whether Lawrence was by

himself or with two other individuals when Officer Thomas ordered him not to

move towards the patrol car. Based on Lawrence’s version of the facts

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surrounding the initial arrest, Officer Thomas could not reasonably have believed

that he had probable cause for charging Lawrence with a violation of subsection

(6).

       Appellants argue that even if Officer Thomas lacked probable cause for

filing the criminal charge, no constitutional or statutory right was clearly

established at the time the events at issue occurred. “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Vinyard, 311 F.3d at 1350 (emphasis omitted) (internal quotation

marks omitted). Long before the events at issue here took place, this Court had

established “malicious prosecution as a violation of the Fourth Amendment and a

viable constitutional tort cognizable under § 1983.” Wood, 323 F.3d at 881.

Viewing the facts in the light most favorable to Lawrence supports a conclusion

that Officer Thomas lacked reasonable grounds to file a criminal complaint based

on subsection (6) of Ala. Code § 13-A-11-7(a)—as explained above, there is

conflicting record evidence as to whether Lawrence was alone or with others when

Officer Thomas ordered him to stay away from the police car. Because a

reasonable officer would know that filing a false criminal complaint would be

unlawful, under this view of the facts, qualified immunity cannot protect Officer

                                          7
Thomas from liability for malicious prosecution. See Kjellsen v. Mills, 517 F.3d

1232, 1238 (11th Cir. 2008) (stating that, to avoid liability for malicious

prosecution, an officer must have probable cause “to continue a prosecution, not

just to arrest a defendant or to institute a prosecution”).

      Thus, we affirm the district court’s decision to deny summary judgment

based on qualified immunity as to Lawrence’s federal constitutional claim for

malicious prosecution.

2.    Statutory Immunity for State-Law Claims of False Arrest and Imprisonment,

      Malicious Prosecution, and Assault & Battery

      The district court denied Officer Thomas statutory immunity as to

Lawrence’s state-law claims for malicious prosecution, false arrest, false

imprisonment, and assault and battery. It also denied the City of Fairhope

statutory immunity with respect to Lawrence’s claims of false arrest and assault

and battery. For the following reasons, we affirm.

      In Alabama, law enforcement officers may invoke statutory immunity from

civil suit for the “performance of any discretionary function within the line and

scope of his or her law enforcement duties.” Ala. Code § 6-5-338. Acts

performed within an officer’s discretionary function are those “as to which there is


                                           8
no hard and fast rule as to the course of conduct that one must or must not take and

those acts requiring exercise in judgment and choice and involving what is just

and proper under the circumstances.” Sheth v. Webster, 145 F.3d 1231, 1239

(11th Cir. 1998) (per curiam) (internal quotation mark omitted). “[A] court first

determines whether the government defendant was performing a discretionary

function when the alleged wrong occurred; if so, the burden shifts to the plaintiff

to demonstrate that the defendant[] acted in bad faith, with malice or willfulness . .

. .” Scarbrough v. Myles, 245 F.3d 1299, 1303 n.9 (11th Cir. 2001) (per curiam)

(alteration in original) (internal quotation mark omitted).

      In Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), the Supreme Court

of Alabama “restate[d] the rule governing State-agent immunity.” In doing so, it

departed from the federal law governing qualified immunity by adding what

appears to be a bad-faith exception. After stating that a state agent “shall be

immune from civil liability” when acting within his discretionary functions, the

court added: “Notwithstanding anything to the contrary in the foregoing statement

of the rule, a State agent shall not be immune from civil liability in his or her

personal capacity (1) when the Constitution or laws of the United States . . .

require otherwise; or (2) when the State agent acts willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or under a mistaken

                                           9
interpretation of the law.” Id. (third emphasis added). The second exception to

state-agent immunity appears to be subjective; it requires an evaluation of the facts

that goes beyond merely determining whether an officer had probable cause for

the conduct at issue.

      After careful review of the parties’ briefs and relevant evidence in the

record, and viewing the facts in the light most favorable to Lawrence, we conclude

that Lawrence has shown facts indicating that Officer Thomas acted in bad faith,

with malice, or willfulness with respect to the remaining state-law claims. As the

district court noted, the evidence in the record of personal animosity supports a

reasonable inference that Officer Thomas acted upon personal ill will that he felt

towards Lawrence based on their ten-year history, or upon racial animosity

towards Lawrence. We agree with the district court that “[Officer] Thomas has

been all over the map as to why he arrested [Lawrence].” Further, or in the

alternative, the City of Fairhope is not entitled to immunity because Lawrence has

met his burden of showing that Officer Thomas may have acted with neglect,

carelessness, or unskillfulness. See Borders v. City of Huntsville, 875 So. 2d.

1168, 1183–84 (Ala. 2003) (denying immunity to the city where the plaintiff’s

state-law claims of excessive use of force, false arrest, false imprisonment, and

assault and battery were based on the officer’s alleged neglect, carelessness, and

                                         10
unskillfulness).

      Finally, as discussed in the previous section, Lawrence has created a

genuine issue of material fact as to whether Officer Thomas had probable cause

for filing the criminal complaint against Lawrence; thus, the district court properly

denied statutory immunity with respect to the state-law claim for malicious

prosecution.

      Accordingly, we affirm the district court’s judgment on all grounds.

      AFFIRMED.




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