                Case: 15-14571       Date Filed: 07/20/2016        Page: 1 of 16


                                                                         [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT

                                     _________________

                                        No. 15-14571
                                     _________________

                          D. C. Docket No. 1:13-cv-00595-WSD

DAN J. BENSON,

                                                                    Plaintiff-Appellee,
                                                                    Cross-Appellant,
                                             versus

OFFICER ANDRES FACEMYER,
in his individual capacity,
                                                                    Defendant-Appellant,
                                                                    Cross-Appellee.
                                     _________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                                  ________________

                                        (July 20, 2016)

Before ED CARNES, Chief Judge, DUBINA, Circuit Judge and HUCK, * District
Judge.



       *
         Paul Huck, United States District Judge for the Middle District of Florida, sitting by
designation.
              Case: 15-14571     Date Filed: 07/20/2016    Page: 2 of 16


PER CURIAM:

      Dan Benson filed a complaint in district court against police officer Andres

Facemyer (“Officer Facemyer”), under 42 U.S.C. § 1983, alleging that Officer

Facemyer violated Benson’s Fourth Amendment rights by arresting him without

probable cause. The district court conducted a jury trial, and the jury found in

favor of Benson and awarded him $472,000 in damages. Thereafter, Officer

Facemyer filed a motion for judgment as a matter of law, reasserting his right to

qualified immunity, and he filed a motion for new trial. The district court denied

Officer Facemyer’s motion for judgment as a matter of law, but granted his motion

for new trial solely on the issue of damages. Officer Facemyer now appeals the

district court’s order denying his post-trial motion for judgment as a matter of law

and the district court’s order granting a new trial solely on the issue of damages.

Benson filed a cross-appeal challenging the district court’s ruling that Officer

Facemyer had arguable probable cause when he formally arrested Benson. Having

the benefit of oral argument, reading the parties’ briefs, and reviewing the record,

we affirm in part and dismiss in part for lack of jurisdiction.




                                           2
                Case: 15-14571       Date Filed: 07/20/2016        Page: 3 of 16


                                    I. BACKGROUND 1

       On February 22, 2011, Benson, who was then sixty-five years old, was

walking in a park in Atlanta, Georgia. As he walked by a woman, later identified

as Ms. Wood, and her two-year-old daughter, he waved. Benson noticed that the

child was wearing a pink jumper. He said, “That’s a beautiful pink dress you have

on.” The child then “grabbed her bodice, yanked it up about a half an inch and

yell[ed], Panties.” The child’s attire reminded Benson of his daughter, who at a

similar age wore matching bloomers under her dresses. Benson told the child that

“[m]y daughter used to wear panties just like yours.” He then continued walking

in the opposite direction.

       Shortly after this encounter, Ms. Wood borrowed a passerby’s cell phone to

call the Atlanta Police Department and report that a man matching Benson’s

description approached her and her daughter and asked her daughter about the

color of her panties. Officer Facemyer responded to the call and identified Benson

as the man Ms. Wood described. He yelled at Benson to “get over here” and asked

Benson if he was armed. Benson held up his hands and stated that he had a firearm

and a permit. Once Officer Facemyer was near Benson, he grabbed Benson’s right



       1
          Because this was a jury trial and Officer Facemyer did not request special
interrogatories related to qualified immunity, “we must resolve all disputed factual issues for the
question of qualified immunity by viewing the evidence in the light most favorable to [Benson].”
Priester v. City of Riviera Beach, Florida, 208 F.3d 919, 925 n.3 (11th Cir. 2000).
                                                3
              Case: 15-14571    Date Filed: 07/20/2016    Page: 4 of 16


arm, pulled it around his back and told him that if he ran, he would “chase [him]

down . . . tackle [him], and . . . really hurt [him].” Next, Officer Facemyer

handcuffed Benson, secured his firearm, and searched him. During this

interaction, Officer Facemyer asked Benson what he said to the child. Benson

described the exchange recited above. Officer Facemyer refused to believe

Benson’s recitation of what transpired between him and the child.

      Soon, two other officers approached them, and Officer Facemyer left

Benson in their custody. The officers peppered him with questions about his

encounter with the child and when Benson told them that he merely spoke to the

child and nothing more, the officers refused to believe him. They eventually

placed Benson into a police wagon where he remained for approximately one hour.

      While Benson remained in the police wagon, Officer Facemyer conducted

an investigation. He briefly interviewed Ms. Wood and asked her to complete a

written statement. In her statement, Ms. Wood reported that she and her daughter

encountered Benson twice while they were in the park. At the first encounter,

Benson said “hi” to them while they were walking. At a later encounter, Ms.

Wood stated that Benson approached them and asked her daughter “if her panties

were pretty and matched her dress.” Benson’s question prompted her daughter to

“place both her hands on her panties and say ‘panties pretty.’” In addition to

obtaining Ms. Wood’s statement, Officer Facemyer discussed the incident with

                                          4
              Case: 15-14571    Date Filed: 07/20/2016    Page: 5 of 16


three other officers, all of whom agreed that probable cause existed to arrest

Benson for violating Georgia’s child molestation statute. One of these officers also

spoke with an assistant district attorney about the case, and the attorney likewise

agreed that probable cause existed to arrest Benson. Hence, about an hour after

questioning, handcuffing, and searching Benson, and ordering that Benson be

detained in the police wagon, Officer Facemyer “formally arrested” Benson. He

informed Benson that he was facing charges for felony child molestation because

“[a]ccording to the FBI’s code on felony child molestation, any adult who uses the

word ‘panty’ in a sentence with a minor under 17 years of age has committed

felony child molestation.”

      Subsequently, Benson filed a § 1983 action against Officer Facemyer. Both

parties moved for summary judgment, but the district court denied the motions.

The district court found that there was a dispute over critical facts concerning when

Benson was arrested and what Officer Facemyer knew when the arrest occurred to

support a determination of arguable probable cause to arrest. Hence, the district

court denied qualified immunity to Officer Facemyer, and the case proceeded to

trial. The jury found in favor of Benson and awarded him $472,000 in

compensatory damages. Office Facemyer filed a motion for judgment as a matter

of law, reasserting his entitlement to qualified immunity, and a motion for new

trial. In denying the motion for judgment as a matter of law, the district court

                                          5
              Case: 15-14571    Date Filed: 07/20/2016    Page: 6 of 16


found that Officer Facemyer placed Benson under arrest shortly after arriving on

the scene and acted without arguable probable cause when he made the arrest.

Therefore, the district court determined that Officer Facemyer was not entitled to

qualified immunity at that time. The district court concluded that “there [wa]s [a]

legally sufficient evidentiary basis for a reasonable jury to have found for [Benson]

based upon the arrest at the time [he] was detained and handcuffed.”

      However, the district court vacated the jury’s verdict and ordered a new trial

as to damages because it found that factual developments arose after Officer

Facemyer’s initial arrest of Benson that impacted Officer’s Facemyer’s liability for

damages. Officer Facemyer timely appeals the district court’s denial of his motion

for judgment as a matter of law and its order granting a new trial on damages.

Benson cross-appeals, challenging the district court’s ruling that factual

developments after Benson’s initial arrest gave Officer Facemyer arguable

probable cause to formally arrest Benson.

                                     II. ISSUES

      1. Whether this court has jurisdiction over Benson’s cross-appeal or Officer

Facemyer’s appeal of the district court’s order granting a new trial.

      2. Whether the district court properly denied Officer Facemyer’s motion for

judgment as a matter of law.




                                          6
              Case: 15-14571    Date Filed: 07/20/2016   Page: 7 of 16


                                III. DISCUSSION

      A. Jurisdiction

      “Because we are a court of limited jurisdiction . . . we first must examine our

own jurisdiction in this case.” Hudson v. Hall, 231 F.3d 1289, 1293 (11th Cir.

2000) (citations omitted) (considering an appeal of a qualified immunity ruling).

We have jurisdiction over all final judgments of the district court and over “a small

category of decisions that, although they do not end the litigation, must nonetheless

be considered ‘final.’” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.

Ct. 1203, 1208 (1995) (citations omitted). “That small category includes only

decisions that are conclusive, that resolve important questions separate from the

merits, and that are effectively unreviewable on appeal from the final judgment in

the underlying action.” Id. A police officer’s appeal of a denial of qualified

immunity falls within this small category “where the disputed issue is whether the

[officer]’s conduct violated clearly established law.” See Hudson, 231 F.3d at

1293 (internal quotation marks omitted). Hence, we have jurisdiction over Officer

Facemyer’s appeal of the district court’s denial of his motion for judgment as a

matter of law because that appeal is a challenge to the denial of qualified immunity

that depends on whether Officer Facemyer violated clearly established law. See id.

      On the contrary, we do not have jurisdiction to entertain Benson’s cross-

appeal or Officer Facemyer’s appeal of the district court’s grant of a new trial. The

                                          7
              Case: 15-14571    Date Filed: 07/20/2016   Page: 8 of 16


jurisdictional exception for qualified immunity cases does not encompass an

appeal like Benson’s which challenges the district court’s finding that Officer

Facemyer developed arguable probable cause to arrest Benson during Officer

Facemyer’s investigation following Benson’s initial arrest. Thus, Benson contends

that we have pendent appellate jurisdiction over his cross-appeal because it is

“inextricably intertwined” with Officer Facemyer’s challenge to the district court’s

denial of qualified immunity. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,

1335 (11th Cir. 1999).

      However, we conclude that the resolution of Benson’s cross-appeal is “not

necessary to resolve” Officer Facemyer’s challenge to the district court’s denial of

qualified immunity at the time of Benson’s initial arrest. See King v. Cessna

Aircraft Co., 562 F.3d 1374, 1380 (11th Cir. 2009) (stating that pendant appellate

jurisdiction does not exist “when resolution of the nonappealable issue [i]s not

necessary to resolve the appealable one”). Benson’s cross-appeal would require

this court to consider whether Officer Facemyer had arguable probable cause when

he formally arrested Benson, while Office Facemyer’s challenge implicates this

question with respect to Benson’s initial arrest. The formal arrest occurred

approximately one hour after the initial arrest and, during that time, a number of

factual developments arose that are relevant to the arguable probable cause inquiry.

Consequently, the formal arrest involves different circumstances and requires a

                                          8
               Case: 15-14571       Date Filed: 07/20/2016       Page: 9 of 16


separate arguable probable cause analysis than the initial arrest. 2 Accordingly,

Benson’s cross-appeal is not “inextricably intertwined” with Officer Facemyer’s

appeal, and we decline to entertain it.

       Likewise, we lack jurisdiction over Officer Facemyer’s appeal of the district

court’s grant of a new trial on damages. See Deas v. PACCAR, Inc., 775 F.2d

1498, 1503 (11th Cir. 1985) (“[T]he grant of a new trial is an interlocutory order,

not subject to appellate review unless coupled with the grant of a [judgment

notwithstanding the verdict] as provided in Fed. R. Civ. P. 50(c).”). Hence, the

only appeal properly before us is Officer Facemyer’s challenge to the district

court’s denial of his motion for judgment as a matter of law.

       B. Motion for judgment as a matter of law

       Officer Facemyer’s appeal of the district court’s denial of his motion for

judgment as a matter of law is a challenge to the denial of qualified immunity,

which we review de novo. See Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir.

2000). The district court concluded that Officer Facemyer is not entitled to

qualified immunity for his initial arrest of Benson because Officer Facemyer did

not have arguable probable cause for that initial arrest. We agree.




       2
         We express no view as to whether arguable probable cause can develop after an
unlawful arrest, or whether qualified immunity can arise based on the post-arrest development of
arguable probable cause.
                                               9
             Case: 15-14571     Date Filed: 07/20/2016    Page: 10 of 16


      “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.’” Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (quoting

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). We employ a two-part

test to evaluate a qualified immunity defense. First, the police officer “must prove

that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred.” Pickens v. Hollowell, 59 F.3d 1203, 1205 (11th

Cir. 1995) (quoting Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995)).

Second, if the officer “meets this burden, the plaintiff must then demonstrate that

the [officer] violated clearly established law based upon objective standards.” Id.

(quoting Hartsfield, 50 F.3d at 953). There is no question that Officer Facemyer

was acting within the scope of his discretionary authority during his interactions

with Benson. However, there is a question whether Officer Facemyer violated

clearly established law when he initially arrested Benson.

      “[A]n arrest without probable cause violates the Fourth Amendment.” Lowe

v. Aldridge, 958 F.2d 1565, 1570 (11th Cir. 1992). Probable cause exists if “the

facts and circumstances within the officer’s knowledge, of which he or she has

reasonably trustworthy information, would cause a prudent person to believe,

under the circumstances shown, that the suspect has committed, is committing, or

                                          10
             Case: 15-14571     Date Filed: 07/20/2016    Page: 11 of 16


is about to commit an offense.” Von Stein v. Brescher, 904 F.2d 572, 578 (11th

Cir. 1990) (citations and footnote omitted). The appropriate inquiry under the

“violated clearly established law” prong of qualified immunity, however, “is not

whether there was probable cause, but whether there was ‘arguable’ probable cause

to arrest.” See Pickens, 59 F.3d at 1206. Arguable probable cause is evaluated by

determining whether “reasonable officers in the same circumstances and

possessing the same knowledge as the Defendant[] could have believed that

probable cause existed to arrest.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.

2002) (alteration in original) (quoting Scarbrough v. Myles, 245 F.3d 1299, 1302

(11th Cir. 2001)); see also Jones v. Cannon, 174 F.3d 1271, 1283 n.4 (11th Cir.

1999) (“[W]hat counts for qualified immunity purposes relating to probable cause

to arrest is the information known to the defendant officers or officials at the time

of their conduct, not the facts known to the plaintiff then or those known to a court

later.”).

       A police officer “may seize a suspect for a brief, investigatory” stop if (1)

the officer has “a reasonable suspicion that the suspect was involved in” a crime

and (2) the stop is “reasonably related in scope to the circumstances” giving rise to

the stop. United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (internal

quotation marks omitted). “No brightline test separates an investigatory stop from

an arrest.” United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995).

                                          11
             Case: 15-14571    Date Filed: 07/20/2016   Page: 12 of 16


“Instead, whether a seizure has become too intrusive to be an investigatory stop

and must be considered an arrest depends on the degree of intrusion, considering

all the circumstances.” Id. (citations omitted). When examining the

circumstances, we consider “the law enforcement purposes served by the

detention, the diligence with which the police pursue the investigation, the scope

and intrusiveness of the detention, and the duration of the detention.” United

States v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000) (quoting United States v.

Hardy, 855 F.2d 753, 759 (11th Cir. 1988)). Considering the totality of the

circumstances presented, we conclude that Officer Facemyer’s initial detainment

of Benson was an arrest.

      When we consider first the law enforcement purpose served by the detention

of Benson, we closely examine “the most important factor . . . ‘whether the police

detained [the defendant] to pursue a method of investigation that was likely to

confirm or dispel their suspicions quickly, and with a minimum of interference.’”

Id. at 1351 (alteration in original) (quoting Hardy, 855 F.2d at 759). Here, when

he encountered Benson, Officer Facemyer knew that an anonymous caller had

reported to authorities that while she and her daughter were in the park, a man

asked the caller’s daughter about the color of her panties. Officer Facemyer also

had a description of the man who spoke to the child. When Officer Facemyer

identified Benson as the man described by the caller, he questioned him, searched

                                         12
             Case: 15-14571     Date Filed: 07/20/2016   Page: 13 of 16


him, and disarmed him. Within a short period of time, other officers arrived at the

scene, and Officer Facemyer left Benson in their custody while he conducted an

investigation. The officers placed Benson in the police van where he remained for

approximately one hour. Therefore, the record evidence supports the finding that

Officer Facemyer was diligent in his investigation and did not detain Benson for

any amount of time longer than was necessary to conduct an investigation.

      We next consider the “‘actual scope and intensity of the intrusion.’” Id.

(quoting Hardy, 855 F.2d at 760). We agree with the district court that Benson’s

detainment was a severe form of intrusion that was unnecessary under the

circumstances. While disarming Benson, Officer Facemyer threatened him with

violence should he attempt to run, and then placed Benson in handcuffs. This

action was surely not the minimal amount of interference Officer Facemyer could

have applied to complete his investigation of a non-exigent matter. Cf. Gil, 204

F.3d at 1351 (finding that the detention in the back of a police car was reasonable

where the detainee could not be immediately searched and could have interfered

with the search of a residence). Hence, we conclude that the scope of the

intrusiveness of the detention supports the finding that Benson’s arrest occurred

when he was initially detained by Officer Facemyer. This was a severe form of

intrusion that was unnecessary for either officer safety or the completion of the




                                         13
              Case: 15-14571     Date Filed: 07/20/2016     Page: 14 of 16


investigation. Accordingly, under the Gil factors, Benson’s detention was more

intrusive than necessary and constituted an arrest.

      We next examine whether Officer Facemyer had arguable probable cause to

arrest Benson for a child molestation violation. In our examination, we consider

the elements of the crime charged and the operative fact pattern. Skop v. City of

Atlanta, 485 F.3d 1130, 1137–38 (11th Cir. 2007). Arguable probable cause does

not exist if it is “clear that the conduct in question does not rise to the level of a

crime, under the facts known at the time.” Wilkerson v. Seymour, 736 F.3d 974,

978 (11th Cir. 2013). This is an objective standard, and the officer’s subjective

intent, beliefs, or inferences are not part of the inquiry. Rushing v. Parker, 599

F.3d 1263, 1266 (11th Cir. 2010).

      Under Georgia law, a person commits child molestation when such person

“[d]oes any immoral or indecent act to or in the presence of or with any child

under the age of 16 years with the intent to arouse or satisfy the sexual desires of

either the child or the person.” O.C.G.A. § 16-6-4(a)(1) (2009). “[T]he law

against child molestation . . . proscribe[s] acts which offend against the public’s

sense of propriety as well as to afford protection to a child’s body in those cases

where the act or acts are more suggestive of sexually oriented misconduct than

simply assaultive in nature.” Chapman v. State, 318 S.E.2d 213, 214 (Ga. App. Ct.

1984). “The focus is on the adult’s action toward the child in relation to the motive

                                           14
             Case: 15-14571     Date Filed: 07/20/2016   Page: 15 of 16


for the action.” Stroeining v. State, 486 S.E.2d 670, 671 (Ga. App. Ct. 1997). An

act “generally viewed as morally indelicate or improper or offensive” can

constitute child molestation. See Chapman, 318 S.E.2d at 214. There is no

requirement that the act must involve physical contact with the child. “A child’s

mind may be victimized by molestation as well.” Smith v. State, 342 S.E.2d 769,

771 (Ga. App. Ct. 1986).

      As an initial matter, the district court’s qualified immunity analysis

erroneously relied on only what Benson told Office Facemyer at the time of the

arrest. Instead, it should have relied on what Officer Facemyer knew. See Lee v.

Ferraro, 284 F.3d at 1195. Officer Facemyer knew that an unidentified woman

called the authorities to report that a man fitting Benson’s description asked her

two-year-old daughter the color of her panties; that the passerby who loaned Ms.

Wood her phone stated that Benson was the subject of the call; that Benson

admitted that he mentioned the word “panties” in a brief conversation with the

child that centered on the color of the child’s dress and bloomers; and that Benson

was carrying a firearm with a valid concealed carry permit. The question the

district court should have asked is whether a reasonable officer with that

information could have believed that arguable probable cause existed to arrest

Benson for the crime of child molestation. The answer to that question is no. No

reasonable officer could have believed that Benson’s passing comment to the child

                                         15
               Case: 15-14571    Date Filed: 07/20/2016   Page: 16 of 16


“offend[ed] against the public’s sense of propriety,” Chapman, 318 S.E.2d at 214,

or was “morally and sexually indelicate, improper and offensive,” id. at 215.

Moreover, Benson’s legal possession of a firearm could not give a reasonable

officer reason to believe that Benson had committed the offense of child

molestation.

      Accordingly, we conclude from the record that the district court did not err

in denying Officer Facemyer’s motion for judgment as a matter of law because his

initial detainment of Benson was an arrest, and Officer Facemyer violated clearly

established law in making that arrest. Thus, Officer Facemyer was not entitled to

qualified immunity at the time of the initial arrest.

                                 IV. CONCLUSION

      For the aforementioned reasons, we affirm the district court’s order denying

Officer Facemyer’s motion for judgment as a matter of law, and we dismiss the

parties’ remaining appeals for lack of jurisdiction.

      AFFIRMED IN PART AND DISMISSED IN PART FOR LACK OF

JURISDICTION.




                                          16
