           Case: 17-12607   Date Filed: 10/26/2017   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12607
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cv-03289-LMM



ELIZABETH LEIGH BUTLER,

                                                            Plaintiff-Appellant,

                                  versus

GWINNETT COUNTY, GEORGIA, et al.,

                                                                    Defendants.

PAUL TREMBLAY,

                                                          Defendant-Appellee.

                      ________________________

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

                            (October 26, 2017)

Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 17-12607     Date Filed: 10/26/2017    Page: 2 of 4


      Elizabeth Leigh Butler appeals the summary judgment against her complaint

about the violation of her civil rights by Officer Paul Tremblay of the Gwinnett

County Police Department, 42 U.S.C. § 1983, and a false arrest in violation of state

law. The district court ruled that Tremblay was entitled to qualified and statutory

immunity because he had arguable probable cause to arrest Butler for loitering. We

affirm.

      We review a summary judgment de novo and view all evidence in the light

most favorable to the non-moving party. Lee v. Ferraro, 284 F.3d 1188, 1190

(11th Cir. 2002). “We then answer the legal question of whether the defendant is

entitled to qualified immunity under that version of the facts.” Id. (brackets

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

1998)).

      The district court correctly entered summary judgment in favor of Tremblay

based on qualified immunity. Because Butler does not dispute that Tremblay was

acting within his discretionary authority, the only issue we need address is whether

Butler established that the officer violated clearly established law. See Rushing v.

Parker, 599 F.3d 1263, 1265 (11th Cir. 2010). Butler alleged that she and a male

friend were “just hanging out” in the back parking lot of a church after midnight on

a weekday, but their conduct provided at least arguable probable cause to arrest

them for loitering, see id. at 1266 (“A defendant need only demonstrate that


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arguable probable cause existed in order to be protected by qualified immunity.”).

Under Georgia law, “[a] person commits the offense of loitering or prowling when

[she] is in a place at a time or in a manner not usual for law-abiding individuals

under circumstances that warrant a justifiable and reasonable alarm or immediate

concern for the safety of persons or property in the vicinity.” Ga. Code Ann. § 16-

11-36(a). Butler and her friend’s presence concerned Tremblay, who had

responded several times to the security alarm at the church and had discovered its

door ajar. And when Tremblay approached Butler’s vehicle, he found her friend

sitting upside down in the front passenger’s seat with his feet dangling over the

headrest and his head hanging over the floorboard, which contained a damp white

substance. Although suspects may provide an explanation for their presence that

would dispel the concerns warranting an arrest, Butler and her friend’s

“explanation justifiably did not dispel [Tremblay’s] concerns,” Franklin v. State,

574 S.E.2d 361, 363 (Ga. Ct. App. 2002). Butler stated that she did not have

permission to be in the parking lot, and her friend admitted that he was nervous

and then volunteered that he was on bond following an arrest for possessing

cocaine and was undergoing drug treatment at a nearby rehabilitation center.

Tremblay was entitled to qualified immunity.

      Tremblay also was immune from liability under state law. Georgia gives a

police officer official immunity for discretionary acts unless he “act[s] with actual


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malice or with actual intent to cause injury.” Ga. Const. art.1, § 2, ¶ 1. As the

district court stated, because Tremblay “had at least arguable probable cause to

[make an] arrest for violating Georgia’s loitering and prowling statute,” he “could

not have acted with malice or intent to cause injury.” Because no material factual

dispute exists about the presence of malice, Tremblay was entitled to summary

judgment based on official immunity.

      We AFFIRM the summary judgment in favor of Officer Tremblay.




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