                              THIRD DIVISION
                               BARNES, P. J.,
                           BOGGS and BRANCH, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                    March 30, 2015




In the Court of Appeals of Georgia
 A14A2021. BROWN et al. v. GEORGIACARRY.ORG, INC. et al.

      BOGGS, Judge.

      We granted this interlocutory appeal to consider the trial court’s denial of

summary judgment on the issue of qualified immunity for government officials under

42 USC § 1983.1 Michael Justin Belt was arrested outside the Colonial Mall in

Brunswick, Georgia in December 2008, on a charge of misdemeanor obstruction of

a police officer, OCGA § 16-10-24 (a). The charge against him ultimately was

      1
        The trial court noted in its certificate of immediate review, “The Court is
aware that there is some authority which suggests that a denial of the defense of
qualified immunity is directly appealable . . . while older authority suggests a
certificate of immediate review is required.” But see Turner v. Giles, 264 Ga. 812,
813-814 (1) (450 SE2d 421) (1994), dismissing appellants’ direct appeal and holding
that a pretrial order denying qualified immunity to government officials in an action
under 42 USC § 1983 must be appealed through the interlocutory appeal provisions
of our Code. But we need not address that issue, because appellants availed
themselves of the interlocutory appeal procedures.
dismissed in 2012, after jury selection was completed. Belt and GeorgiaCarry.Org,

Inc.2 [collectively “appellees”] then brought this action against the arresting officers,

seeking damages and declaratory relief. The officers moved for summary judgment,

which the trial court granted as to all of appellees’ claims except the claim for

malicious prosecution under § 1983, finding that genuine issues of material fact

remained on the issue of qualified immunity. Because the evidence presented meets

the minimal requirement of “arguable reasonable suspicion” in the context of

qualified immunity in a § 1983 action, the trial court erred in denying the officers’

motion for summary judgment. We therefore reverse.

      “On appeal from the denial of summary judgment the appellate court is to

conduct a de novo review of the evidence to determine whether there exists a genuine

issue of material fact, and whether the undisputed facts, viewed in the light most

favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation and

punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see

OCGA § 9-11-56 (c). So viewed, the record shows that on December 14, 2008, Belt

went to the Colonial Mall in Glynn County, Georgia, while openly wearing a handgun


      2
        GeorgiaCarry.Org is a Georgia corporation “whose mission is to foster the
rights of its members to keep and bear arms.” Belt is a member of GeorgiaCarry.Org.

                                           2
in a waistband holster. Before Belt reached the mall entrance, a security guard

approached him, informed him that the mall had a “no-weapons policy,” and asked

him to return his handgun to his vehicle, and Belt agreed and began walking to his

truck. The security guard also informed Belt that there had been a shoplifting incident

at the mall and that he should return his handgun to his vehicle for that reason as well.

Belt testified that he was not informed that he was a suspect in the shoplifting.

      As Belt returned to his truck in the mall parking lot, a second security guard

and off-duty police lieutenant for the City of Brunswick, David O’Neal, approached

him and demanded to see his firearms license.3 When Belt refused, Lieutenant O’Neal

stood behind Belt’s truck, told him not to leave, and called the police. Lieutenant

O’Neal then contacted the police and reported that there was an armed subject at the

mall and that he needed assistance.

      Officer Henry Scott of the Glynn County Police Department answered the

dispatch call of “a subject who was armed with a handgun.” He testified that

Lieutenant O’Neal informed him that mall security “had received some complaints


      3
         Lieutenant O’Neal was originally a defendant in this action, but died during
the litigation. His estate was not substituted as a defendant after a suggestion of death
was filed, and he was dismissed as a party with appellees’ consent. See OCGA § 9-
11-25 (a).

                                           3
about Mr. Belt having a gun inside the mall and that he had been identified as a

suspect in a shoplifting incident at the . . . music store inside the mall.” Officer Scott

made contact with Belt and began speaking with him. Belt told Officer Scott his name

and said that he had a firearms license, but he refused to produce it, saying, “No, I

don’t have to show it to you.”

      Shortly thereafter, Sergeant Craig Brown of the Glynn County Police

Department also arrived on the scene. Sergeant Brown had heard the police dispatch

that there was “a man with a gun” at the mall and that mall security had called the

police. When he arrived, Sergeant Brown spoke with Officer Scott, who told him that

Belt “was trying to take a gun into the mall” and that “he was a shoplifting suspect.”

Sergeant Brown asked Belt for his firearms license and his driver’s license, but Belt

refused to produce them. Based upon this refusal, Sergeant Brown arrested Belt for

misdemeanor obstruction.

      “To establish a federal malicious prosecution claim under [42 USC] § 1983, the

plaintiff must prove a violation of his Fourth Amendment right to be free from

unreasonable seizures in addition to the elements of the common law tort of malicious

prosecution.” (Citations, footnote, and emphasis omitted.) Wood v. Kesler, 323 F3d

872, 881 (III) (C) (11th Cir. 2003). The common law elements of a malicious

                                            4
prosecution claim under Georgia law are: “(1) a criminal prosecution instituted or

continued by the present defendant; (2) with malice and without probable cause; (3)

that terminated in the plaintiff accused’s favor; and (4) caused damage to the plaintiff

accused.” (Citations and footnote omitted.) Id. at 882 (III) (C); see also Gooch v.

Tudor, 296 Ga. App. 414, 416 (1) (674 SE2d 331) (2009).

      But “malicious prosecution suits are not favored. It is public policy to

encourage citizens to bring to justice those who are apparently guilty.” (Citation,

punctuation and footnote omitted.) Gibbs v. Loomis, Fargo, & Co., 259 Ga. App. 170,

176 (576 SE2d 589) (2003). And in the context of a § 1983 claim,

      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. 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, protecting
      from suit all but the plainly incompetent or one who is knowingly
      violating the federal law.


(Citations and punctuation omitted.) Wood, supra, 323 F3d at 877 (III) (A).

      Accordingly, we first must consider the provisions of OCGA § 16-10-24 (a).

That Code section provides that “a person who knowingly and willfully obstructs or

                                           5
hinders any law enforcement officer in the lawful discharge of his official duties is

guilty of a misdemeanor.” In order to show misdemeanor obstruction, “the act

constituting obstruction or hindering must be knowing and wilful, and . . . the officer

must be lawfully discharging his official duties at the time of such act. [Cit.]”

Weidmann v. State, 222 Ga. App. 796, 797 (2) (476 SE2d 18) (1996) (full

concurrence in Division 2). “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.” (Citations, punctuation, and

footnote omitted.) Berrian v. State, 270 Ga. App. 582 (608 SE2d 540) (2004).

      A knowing and willful refusal to provide identification to an officer acting in

the lawful discharge of his official duties may constitute obstruction under OCGA §

16-10-24 (a). See Hall v. State, 201 Ga. App. 328, 328-329 (1) (411 SE2d 274)

(1991); Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989). Relying upon

Kolender v. Lawson, 461 U. S. 352, 357-361 (III) (103 SCt 1855, 75 LE2d 903)

(1983), appellees argue that law enforcement cannot sanction individuals for refusing

to produce documentation verifying their identify, such as a driver’s license, during

an investigatory stop. But in that case, the United States Supreme Court held a



                                          6
loitering statute void for vagueness, id. at 361 (IV), and expressly did not reach any

Fourth Amendment issues. Id., n.10.4

      We next consider whether officers were entitled to ask Belt for identification.

In the course of a “second-tier encounter” under Terry v. Ohio, 392 U. S. 1, 21-22

(III) (88 SCt 1868, 20 LE2d 889) (1968), if an officer has a reasonable, articulable

suspicion of criminal conduct, he may lawfully detain an individual for a brief time

and request identification as part of the investigatory stop. State v. Beasley, 270 Ga.

App. 638, 639 (607 SE2d 245) (2004). And in the context of § 1983 qualified

      4
        Appellees also cite a dictum in United States v. Brown, 731 F2d 1491, 1494
(II) (11th Cir.), vacated in part on other grounds, 743 F2d 1505 (11th Cir. 1984), to
the effect that the defendants in that case were entitled to refuse to furnish
identification in the course of a Terry stop. But Brown does not interpret OCGA § 16-
10-24 (a), as appellees contend, but rather Ga. Code Ann. § 26-2506, the predecessor
to OCGA § 16-10-25, which forbids giving a false name or other false information
to a law enforcement officer. 731 F2d at 1494 (II) n. 2. And Brown was a criminal
prosecution that did not apply the standard of “arguable reasonable suspicion” in the
context of qualified immunity from a malicious prosecution claim. As the district
court observed in Gainor v. Douglas County, 59 FSupp2d 1259, 1282 (D) (2) (a)
(N.D. Ga. 1998), this dictum stands virtually alone and was not detected by the Tenth
Circuit in a survey of qualified immunity cases dealing with the issue, and “it seems
unfair to attribute this knowledge to a deputy [officer]. . . who likely does not enjoy
the same legal skills as do Tenth Circuit judges.” 59 FSupp2d at 1284 (III) (2) (b).
Moreover, “[a]s Brown did not deal with Georgia’s obstruction statute, it arguably did
not draw a bright line in circumstances so factually similar to those at hand that all
reasonable officers in [the arresting officer’s] place would have believed the actions
he took were unconstitutional and, thus, its existence does not defeat the defense of
qualified immunity.” Id.

                                          7
immunity, “under Georgia case law dealing with the offense of obstruction, the

standard for determining whether an officer was lawfully discharging his duties such

that a refusal to provide identification would constitute obstruction is whether a

reasonable suspicion existed to stop the individual charged with obstruction.” Gainor

v. Douglas County, 59 FSupp2d 1259, 1282 (III) (D) (2) (a) (N.D. Ga. 1998).

      In an action for malicious prosecution under § 1983,

      [a] law enforcement official who reasonably but mistakenly concludes
      that reasonable suspicion is present is still entitled to qualified
      immunity. When an officer asserts qualified immunity, the issue is not
      whether reasonable suspicion existed in fact, but whether the officer had
      “arguable” reasonable suspicion to support an investigatory stop.


(Citations omitted; emphasis supplied.) Jackson v. Sauls, 206 F3d 1156, 1165-1166

(V) (11th Cir. 2000). Therefore, if officers had “arguable reasonable suspicion” to

detain Belt and request identification, they were acting in the lawful discharge of their

duties when they arrested him for refusing to provide identification, and they are

entitled to qualified immunity. Id.

      Under the facts presented to the trial court here, this issue is resolved by the

well-established rule governing circumstantial and direct evidence:




                                           8
      In ruling on a motion for summary judgment, a finding of fact that may
      be inferred from, but is not demanded by, circumstantial evidence has
      no probative value against positive and uncontradicted evidence that no
      such fact exists, provided that the circumstantial evidence may be
      construed consistently with the direct evidence.


(Citations, punctuation, and footnote omitted.) White v. Shamrock Bldg. Systems, 294

Ga. App. 340, 344 (1) (669 SE2d 168) (2008).

      Here, appellees offer circumstantial evidence to support their contention that

the officers were harassing Belt for carrying a firearm rather than conducting an

investigatory stop based upon reasonable suspicion. They point out that the actions

of the first security guard, who simply asked Belt to put his gun back in his vehicle,

were inconsistent with a belief that he was a criminal suspect. They also note that

neither Officer Scott nor Sergeant Brown had any independent knowledge of any

shoplifting incident or any other information connecting that incident with Belt other

than what they were told by Lieutenant O’Neal, and that apparently no separate police

report of the shoplifting incident exists. They further note that at least one officer

admitted that he “didn’t investigate the shoplifting” and that Belt was not told that he

was a shoplifting suspect until after he was arrested, and then only “kind of. Not




                                           9
really.”5 Finally, they point out that officers repeatedly asked Belt only for his “gun

license,” and that only after Sergeant Brown arrived on the scene and first asked Belt

for his “gun license,” was he asked for his “driver’s license or ID.” From this

circumstantial evidence, appellees argue that “[t]he shoplifting ‘investigation’ was

nonexistent” and “a sham to justify Appellants’ wrongful prosecution of Belt.”

      But Officer Scott presented positive and uncontradicted evidence that he was

told by Lieutenant O’Neal both that mall security had received complaints about Belt

carrying a gun inside the mall and that Belt was a suspect in a shoplifting incident in

the mall. Direct evidence that the officers were informed that Belt was a suspect

directly contradicts appellees’ contention, based on circumstantial evidence, that the

investigation was a “sham” and a pretext for officers to harass him for carrying a

firearm. See Young v. Eslinger, 244 Fed. Appx. 278, 280 (11th Cir. 2007) (report

from another officer that vehicle was involved in drug transaction with subject of

ongoing investigation was “arguable reasonable suspicion” to stop vehicle.)



      5
       Appellees argue from Ewumi v. State, 315 Ga. App. 656 (1) (727 SE2d 257)
(2012), that Belt cannot be guilty of obstructing an investigation of which he was
ignorant. But Ewumi is not persuasive here. That appeal was from the denial of a
motion to suppress in a criminal prosecution, not a claim of qualified immunity in a
§ 1983 action. Moreover, it involved a first- not a second-tier encounter.

                                          10
      And the circumstantial evidence offered by appellees can be construed

consistently with Officer Scott’s testimony. Even if Belt in fact had not entered the

mall with a firearm and was not a suspect in a shoplifting incident, and even if

Lieutenant O’Neal was mistaken or untruthful in giving Officer Scott that

information, the circumstantial evidence is not inconsistent with Officer Scott’s direct

evidence that he was so informed by Lieutenant O’Neal. It therefore is insufficient to

create an issue of fact. Mucyo v. Publix Super Markets, 301 Ga. App. 599, 601 (2)

(688 SE2d 372) (2009) (circumstantial evidence that plaintiff did not see employee

before she fell not inconsistent with employee’s positive, uncontradicted testimony

that she inspected the area within two minutes before plaintiff’s fall). See also South

v. Bank of America, 260 Ga. App. 91, 93-95 (1) (579 SE2d 80) (2003) (physical

precedent only) (direct testimony that bank teller received call from customer

authorizing transaction not inconsistent with circumstantial evidence that transaction

was not properly documented and not customer’s usual practice).

      The officers were entitled to rely on the information they received from

Lieutenant O’Neal that Belt was a suspect in a crime. Gay v. State, 233 Ga. App. 738,

739 (2) (505 SE2d 29) (1998) (reasonable suspicion to stop suspect based on

information supplied by transit supervisor, a former police officer, who observed a

                                          11
partially concealed weapon on his person.) Having “arguable reasonable suspicion”

to detain Belt and ask for his identification, the officers were acting in the course of

their official duties when they asked Belt to produce identification. Summary

judgment therefore should have been granted on the ground of qualified immunity

from a malicious prosecution claim under 42 USC § 1983.

      While we must reverse the denial of summary judgment here, the trial court did

correctly note that “Georgia law does not authorize law enforcement officers to

request identification from citizens for no reason and charge them with obstruction

if they fail to comply.” The outcome in this appeal is applicable only in the very

limited circumstances of qualified immunity in a federal malicious prosecution claim

as applied to the facts of this case. We therefore take this opportunity to reiterate our

support for the proposition that

      in a first-tier encounter, police may approach citizens, ask for
      identification, ask for consent to search, and otherwise freely question
      the citizen without any basis or belief of criminal activity so long as the
      police do not detain the citizen or convey the message that the citizen
      may not leave. But it is well settled that a citizen’s ability to walk away
      from or otherwise avoid a police officer is the touchstone of a first-tier
      encounter. Indeed, even running from police during a first-tier encounter
      is wholly permissible. And an individual may refuse to answer or ignore


                                           12
      the request and go on his way if he chooses, for this does not amount to
      any type of restraint.


(Citations, punctuation, and footnotes omitted.) Ewumi v. State, 315 Ga. App. 656,

658 (1) (727 SE2d 257) (2012). And even in the context of a qualified immunity

claim, there is

      great importance placed on personal liberty by our common law
      tradition. The Court in Terry, while noting police officers’ wide
      authority to investigate crimes, gave homage to our civil liberties and
      dismissed the notion that any such intrusion, even a lawful one, is de
      minimis. Said of the original Terry stop-and-frisk, “it is simply fantastic
      to urge that such a procedure performed in public by a policeman while
      the citizen stands helpless . . . is a ‘petty indignity.’ It is a serious
      intrusion upon the sanctity of the person, which may inflict great
      indignity and arouse strong resentment, and it is not to be undertaken
      lightly.


(Emphasis in original.) Kapila v. Jenkins, 2009 U.S. Dist. LEXIS 38650 (IV) (S.D.

Fla. 2009).

      Judgment reversed. Barnes, P. J., and Branch, J., concur.




                                          13
