                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                    DECEMBER 2, 2011
                                            No. 11-11983
                                        Non-Argument Calendar          JOHN LEY
                                                                        CLERK
                                      ________________________

                               D.C. Docket No. 1:10-cv-00009-CG-N



ORLANDO BETHEL,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellant,

                                                versus

CITY OF MOBILE, ALABAMA,
MAYOR SAM JONES,
MICHAEL P. ELLZEY,
JONATHAN DAVID LEE,

llllllllllllllllllllllllllllllllllllllll                         Defendants-Appellees.

                                     ________________________

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

                                           (December 2, 2011)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

      Orlando Bethel, proceeding pro se, brought this action under 42 U.S.C. §

1983 against the City of Mobile, Mayor Sam Jones, and Mobile police officers

Michael Ellzey and Jonathan Lee claiming that Ellzey and Lee arrested him for

disorderly conduct without arguable probable cause in violation of his rights under

First, Fourth, and Fourteenth Amendments of the U.S. Constitution. The arrests

took place during the City’s Mardi Gras parade in 2009 as Bethel, his wife and

three children were standing on a sidewalk along the parade route. Bethel was

holding up a sign which stated: “GOD hates you SINners repent in JESUS name

live SIN free.” Officer Ellzey, who had been working crowd control, was

dispatched to the area where Bethel was holding his sign. He asked Bethel to take

down the sign and cease harassing the crowd because he was creating a public

harm. Bethel refused. Meanwhile, Officer Lee spoke to Renee Cook, who had

called the police because Bethel was harassing her 13-year old daughter with

threatening words, calling her a “whore” and a “slut” and telling her that she

would “burn in hell.” After hearing this from Cook, Lee and Ellzey arrested

Bethel for disorderly conduct, in violation of Alabama’s disorderly conduct

statute. Ala. Code § 13A-11-7 (1975).



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      Ellzey and Lee moved the district court to grant them summary judgment on

Bethel’s claims against them on the ground of qualified immunity. The City and

Mayor moved the district court for summary judgment as well on the merits of

Bethel’s claims. The court granted the motions. Bethel appeals. In his brief, he

does not address the district courts rejection of his claims against the City and

Mayor; his sole contention is that the court erred in granting Ellzey and Lee

summary judgment. We agree that they are entitled to qualified immunity and that

summary judgment was appropriate.

                                          I.

      In his brief on appeal, Bethel argues that the district court erred in granting

Ellzey and Lee summary judgment because disputed issues of material fact exist as

to whether the officers had probable cause to arrest him for disorderly conduct.

He contends that by arresting him without probable cause, the officers violated his

First Amendment rights of free speech, assembly, and free exercise of religion, his

Fourth Amendment right to be free from unreasonable searches and seizures, and

his Fourteenth Amendment right to equal protection of the laws.

      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 did. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003).

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Summary judgment is appropriate where the evidence shows that there are no

genuine issues as to any material facts and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

      As an affirmative defense, qualified immunity protects government officials

performing discretionary functions from suits in their individual capacities unless

their conduct violates “clearly established statutory or constitutional rights of

which a reasonable person would have known.” Andujar v. Rodriguez, 486 F.3d

1199, 1202 (11th Cir. 2007) (citations omitted). For qualified immunity to apply,

officials who assert the defense bear the burden of establishing that, at the time of

the complained-of conduct, they were acting within their discretionary authority.

Skop v. City of Atlanta, Georgia, 485 F.3d 1130, 1136 (11th Cir. 2007). Here,

neither party disputes that at the time of Bethel’s arrest, Officers Ellzey and Lee

were acting pursuant to their discretionary authority as police officers. Because

the officers were acting within the scope of their discretionary authority, the

burden shifted to Bethel to prove that they were not entitled to qualified immunity.

Skop, 485 F.3d at 1136-37. Bethel had to show that: (1) the officers violated a

constitutional right, and (2) this right was clearly established at the time of the

alleged violation. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264

(11th Cir. 2004).

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      A warrantless arrest without probable cause violates the Fourth Amendment

and forms a basis for a § 1983 claim, while an arrest made with probable cause

constitutes an absolute bar to a § 1983 action for false arrest. Ortega v. Christian,

85 F.3d 1521, 1525 (11th Cir. 1996). However, an officer who violates the Fourth

Amendment by arresting an individual without probable cause is not inevitably

removed from the shield of qualified immunity. Skop, 485 F.3d at 1137. Even if

the officer did not in fact have probable cause, we apply the standard of arguable

probable cause: whether a reasonable officer in the same circumstances and

possessing the same knowledge could have believed that probable cause existed to

arrest. Id.

      To determine whether arguable probable cause exists, we look to the totality

of the circumstances. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). In

the qualified immunity context, we ask whether a reasonable officer, acting under

these circumstances and possessing the knowledge the arresting officer actually

possessed, could have believed he had probable cause to arrest. Skop, 485 F.3d at

1143. Probable cause determinations need not be supported by “overwhelmingly

convincing evidence,” but instead, officers are entitled to rely on all “reasonable

trustworthy information.” Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir.

1990).

                                          5
      Police officers are also entitled to qualified immunity on First Amendment

claims stemming from an arrest if the arrest was supported by probable cause. See

Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) (holding that

when probable cause supports an arrest, an officer “is justified in arresting that

person, even if the offender may be speaking at the time that he is arrested”).

      Based on the knowledge possessed by Officers Ellzey and Lee at the time

they arrested Bethel, it was reasonable for them to conclude that Bethel had

violated Alabama’s disorderly conduct statute through his use of abusive and

obscene language in a public place. The officers were entitled to rely on Renee

Cook’s “reasonabl[y] trustworthy” report regarding Bethel’s behavior in making

this determination, even if, as Bethel contends, he never used abusive or obscene

language. See Marx, 905 F.2d at 1506. Because there was arguable probable

cause to arrest Bethel for disorderly conduct, Bethel did not demonstrate that his

Fourth Amendment rights were violated such that the officers were not entitled to

qualified immunity. See Skop, 485 F.3d at 1137. Additionally, the existence of

probable cause also entitles Officers Ellzey and Lee to qualified immunity as to

Bethel’ First Amendment claims. See Redd, 140 F.3d at 1383. Other than his

assertions regarding the unequal treatment of similarly situated speakers, Bethel

does not separately argue that Officers Ellzey and Lee were engaged in selective

                                          6
enforcement of the law, in violation of the Fourteenth Amendment’s equal

protection guarantee. Such unsupported factual allegations are insufficient to

sustain a claim against a motion for summary judgment. See Fed. R. Civ. P. 56(e).

      In light of the foregoing, the district court did not err by granting summary

judgment to Officers Ellzey and Lee as to Bethel’s First, Fourth, and Fourteenth

Amendment claims, as the officers are entitled to qualified immunity as to Bethel’s

false arrest claim, and Bethel presented no evidence that the arrest violated his

First or Fourteenth Amendment rights.

      In sum, the district court’s summary judgments in favor of all appellees are

      AFFIRMED.




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