                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 15-2200


GREGORY ROBINSON,

                Plaintiff - Appellee,

           v.

THE CITY OF SOUTH CHARLESTON; S.W. MILLER, a/k/a Steven W.
Miller; E.M. PETERSON, a/k/a Eric M. Peterson; E.R. MOYER,
a/k/a Engracio R. Moyer,

                Defendants - Appellants.


Appeal from the United States District Court for the Southern
District of West Virginia at Charleston.  Thomas E. Johnston,
District Judge. (2:14-cv-00330)


Argued:   September 21, 2016                 Decided:   October 24, 2016


Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.


Vacated in part and remanded by unpublished opinion.       Judge
Harris wrote the opinion, in which Chief Judge Gregory and Judge
Niemeyer joined.


ARGUED: Molly Underwood Poe, PULLIN, FOWLER, FLANAGAN, BROWN &
POE, PLLC, Charleston, West Virginia, for Appellants. Alexander
Deane McLaughlin, THE CALWELL PRACTICE, LC, Charleston, West
Virginia, for Appellee.     ON BRIEF: Benjamin Dean Adams, THE
CALWELL PRACTICE, LC, Charleston, West Virginia, for Appellee.




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PAMELA HARRIS, Circuit Judge:

       Plaintiff Gregory Robinson alleges that police officers in

South Charleston, West Virginia, violated his Fourth Amendment

rights by twice arresting him without probable cause.                           Because

the district court incorrectly applied a subjective standard to

the    probable   cause       question,      we    vacate     and   remand   for    the

requisite objective analysis of probable cause.



                                           I.

                                           A.

       This   case    began    with    a   report     of    employee     theft     at   a

Walmart in South Charleston, West Virginia, in July of 2012.

Officer Steven Miller of the South Charleston police department

responded,     and    met     with    Paul       Higginbotham,      Walmart’s    Asset

Protection    Manager.         Higginbotham        informed     Miller   that     store

surveillance         video      had     captured        three       employees,          or

“associates,” stealing Apple iPods.                  The first video, from July

6,    2012,   included       images   of     two    Walmart    associates,       Jeremy

Hartwell and Jirald Davis, and showed Hartwell removing iPods

from a display case.           In the second, filmed on July 10, a third

associate – Robinson – also is on the scene, and Hartwell again

is seen taking iPods from the case.


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     Miller sought an arrest warrant for Robinson on July 19,

2012,   and    submitted        an    affidavit         setting     out   the       facts    in

support of probable cause (the “First Affidavit”).                             According to

Miller’s      affidavit,        the    July       10    surveillance          video    showed

Robinson and Hartwell walking toward the display case, followed

by Davis, who “begins to talk to [Robinson].”                        J.A. 1055.            While

Hartwell      “select[s]     merchandise”              from   the   display         case    and

conceals      it   in     his       pocket,       “Davis      continues        to     observe

[Hartwell]      and     distract       the    other      associate”       –     presumably,

Robinson – “from noticing the activity.”                      Id.

     A Kanawha County magistrate judge subsequently issued an

arrest warrant for Robinson.                  Robinson, who was on vacation at

the time, voluntarily turned himself in to the police on July

30, 2012.       The charges against Robinson were dismissed without

prejudice,     following        a     preliminary        hearing    at    which       neither

Miller nor witnesses from Walmart appeared.

     Walmart’s Higginbotham urged the police to resolve the case

against Robinson, and on November 20, 2012, the police again

sought an arrest warrant.                  Officers Eric Peterson and Engracio

Moyer filed the second application, accompanied by a slightly

amended affidavit (the “Second Affidavit”).                          In this version,

video of the July 10 episode shows Hartwell entering the scene

with Robinson “present,” while Davis speaks with Robinson and

“appears      to   distract          the     other      associates”       –     presumably,

                                              3
associates other than Robinson – “from noticing the activity.”

J.A. 1059 (emphasis added).

      A    magistrate   judge    again     issued     an    arrest      warrant,     and

Robinson once again turned himself in on the warrant.                               This

time, the relevant police officers – Peterson and Moyer – were

present at the hearing.         But they were never called to testify,

and   at    the   conclusion    of   the       hearing,    the    magistrate     judge

dismissed the charges against Robinson, without prejudice, for

lack of probable cause.

                                         B.

      In December 2013, Robinson brought a § 1983 action against

Officers      Miller,     Peterson         and      Moyer        (the    “individual

defendants”), alleging two Fourth Amendment violations:                        first,

that the officers had sought arrest warrants based on affidavits

that failed to establish probable cause; and second, that the

officers had arrested Robinson without probable cause.                        Robinson

also sued the City of South Charleston, claiming that the City

was liable under § 1983 for its failure to train its police

officers with respect to probable cause. See Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658 (1978).                         Finally,

Robinson raised state-law malicious prosecution claims against

each of the individual defendants.

      The    defendants    moved     for       summary     judgment      on   all     of

Robinson’s claims.        With respect to Robinson’s Fourth Amendment

                                           4
claims under § 1983 – central to this appeal – the individual

defendants argued, in part, that they were entitled to qualified

immunity.       Robinson opposed the defendants’ motion and sought

summary      judgment    on    his     Fourth        Amendment       deficient-affidavit

claims against the individual defendants.

        The district court granted Robinson’s motion as to Officer

Miller and denied summary judgment to the defendants.                            The First

Affidavit, the district court held, was a “textbook example of

an    affidavit   that    utterly         fails      to    provide     a    probable    cause

basis” for an arrest warrant.                   J.A. 1075.          The affidavit did no

more than put Robinson in the vicinity of illegal activity at

his    own    workplace,       and     actually           provided     the    “exculpatory

statement” that another employee “distract[ed]” Robinson during

the theft.        J.A. 1076.           Because Officer Miller’s decision to

seek a warrant based on this “patently insufficient” affidavit,

id., was objectively unreasonable, the district court concluded,

Miller was not protected by qualified immunity.

       The Second Affidavit, filed by Officers Peterson and Moyer,

fared little better.           Though it no longer contained “exculpatory

language,”       J.A.    1079,       it      continued         to    rest     entirely    on

Robinson’s       presence       at     the      scene,       without        including     any

information suggesting actual involvement in criminal activity.

But    despite     finding       that      the       Second     Affidavit       failed    to

establish      probable       cause,      the       district    court      denied   summary

                                                5
judgment to Robinson on this claim.                            Because Peterson and Moyer

consulted with a prosecutor before seeking the arrest warrant,

the district court held, they might be entitled to qualified

immunity – a question that could not be resolved on summary

judgment because of factual disputes regarding the nature of

that consultation.

       The    district       court       turned         next    to    Robinson’s       allegation

that he was arrested without probable cause, treating it as a

separate Fourth Amendment claim analogous to the common-law tort

of    malicious         prosecution.           The      critical          question,    the   court

held, was whether the information known to the officers at the

time     of       Robinson’s       arrests      amounted             to    probable      cause   of

criminal      activity.            And   on    that       question,         too,   the    district

court found “pervasive discrepancies” in the record, J.A. 1102,

precluding         an    award      of   summary          judgment         to   the    individual

defendants on their qualified immunity defense.                                       Among those

issues       of    material        fact,      the       court     held,      was   whether       the

officers      had       “interpreted”         the       Walmart      surveillance        video    as

showing evidence of Robinson’s involvement in criminal activity.

J.A. 1104.

       Finally, the district court denied the defendants’ motion

for summary judgment on Robinson’s § 1983 Monell claim against

the    City       and   on   his    state-law           claims       against    the    individual

defendants.         Defendants timely noted this appeal.

                                                    6
                                          II.

                                            A.

     Under     28   U.S.C.   §    1291,     we   have   jurisdiction   to   review

“final decisions” of the district courts.                 As a general rule, a

decision like the one below – granting the plaintiff partial

summary judgment and denying summary judgment to the defendants

– would not qualify as a final decision because it does not

“end[]   the   litigation        on   the    merits,”   resolving   all     of   the

parties’ claims and leaving “nothing for the court to do but

execute the judgment.”           Porter v. Zook, 803 F.3d 694, 696 (4th

Cir. 2015) (citation and internal quotation marks omitted); see

Bellotte v. Edwards, 629 F.3d 415, 426 (4th Cir. 2011) (holding

partial grant of summary judgment is not “final decision” for

purposes of 28 U.S.C. § 1291).

     But “notwithstanding the absence of a final judgment,” we

do have jurisdiction to review “a district court’s denial of a

claim of qualified immunity, to the extent that it turns on an

issue of law.”       Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);

Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007).                   Our review

is limited to questions of law; in this posture, we may not

review a district court determination that “the pretrial record

sets forth a ‘genuine’ issue of fact for trial.”                        Gould v.

                                            7
Davis, 165 F.3d 265, 268 (4th Cir. 1998) (citation and internal

quotation marks omitted).

     We review de novo the district court’s denial of summary

judgment and qualified immunity.                Am. Civil Liberties Union of

Maryland, Inc. v. Wicomico Cty., Md., 999 F.2d 780, 784 (4th

Cir. 1993).

                                           B.

     We begin – and end, as explained below – with Robinson’s

claim   that   he   was     arrested       without    probable     cause,    and    the

district    court’s    decision       to    deny     the    individual     defendants

summary    judgment    on     their    qualified       immunity    defense.         The

defendants     argue   that    the     court    committed      a   legal    error    in

denying qualified immunity, applying a subjective rather than

objective standard to the question of probable cause.                      We agree.

     “The    Fourth    Amendment      prohibits       law    enforcement     officers

from making unreasonable seizures, and seizure of an individual

effected without probable cause is unreasonable.”                          Brooks v.

City of Winston-Salem, N.C., 85 F.3d 178, 183 (4th Cir. 1996).

Whether there is probable cause to justify an arrest turns on

the “facts and circumstances” known to the officer at the time

of the arrest, Michigan v. DeFillippo, 443 U.S. 31, 37 (1979),

and whether those known facts give rise to a “fair probability”

that the suspect has committed a crime, Florida v. Harris, 133

S. Ct. 1050, 1055 (2013) (defining probable cause).

                                            8
      Critically,         probable    cause     is    measured     objectively,       not

subjectively.        United States v. Gray, 137 F.3d 765, 769 (4th

Cir. 1998) (defining probable cause as “objective standard of

probability        that    reasonable      and       prudent      persons    apply     in

everyday     life”).       While     we   “examine        the     facts     within    the

knowledge     of     arresting       officers        to   determine       whether     they

provide a probability on which reasonable and prudent persons

would act[,] we do not examine the subjective beliefs of the

arresting officers to determine whether they thought that the

facts constituted probable cause.”               Id. (emphasis in original).

      The district court appears to have done just that, taking a

distinctly         subjective        approach        to     the     probable         cause

determination.        All of the individual defendants pointed to the

images captured on the Walmart surveillance video as a critical

factor giving rise to probable cause that Robinson had engaged

in criminal activity.           But the district court did not watch the

video, though it was made a part of the record, and so the court

could not determine for itself whether the video contributed to

probable cause as an objective matter.                      Instead, the district

court considered whether the officers “interpreted” the video as

suggestive of Robinson’s involvement in the theft.                          J.A. 1104;

see id. at 1099, 1109 n.13.               And it was on this point – whether

the   officers       themselves       believed       that    the    video     indicated

Robinson’s complicity – that the district court identified a

                                           9
factual    dispute     precluding       the     award    of     summary    judgment,

reasoning that the descriptions of the video provided in the

First and Second Affidavits suggested that the officers did not

interpret the video in a way that incriminated Robinson.

       Under    the   correct     Fourth      Amendment        standard,       how     the

individual defendants subjectively interpreted the surveillance

video is not a “material fact.”                 Cf. Bostic v. Schaefer, 760

F.3d 352, 370 (4th Cir. 2014) (“Summary judgment is appropriate

when ‘there is no genuine dispute as to any material fact and

the    movant   is    entitled    to    judgment    as    a    matter     of    law.’”)

(quoting Fed. R. Civ. P. 56(a)).               The only relevant question is

whether    “reasonable     and     prudent     persons,”       viewing     the       video

along    with   any    other     evidence     within     the    knowledge       of     the

officers at the time of Robinson’s arrest, would be warranted in

believing to a fair probability that Robinson had engaged in

criminal activity.        Gray, 137 F.3d at 769.               And if the question

is    sufficiently     close   that     an    objectively      reasonable       officer

could conclude that probable cause existed, then the individual

defendants      are   entitled     to   qualified       immunity.         See,       e.g.,

Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001).

       Accordingly, we cannot affirm the district court’s denial

of qualified immunity to the officers on Robinson’s claim that

he was arrested without probable cause.                 Instead, we vacate that



                                         10
ruling and remand to the district court so that it may undertake

the requisite objective inquiry into probable cause.

      We recognize that a district court finding that Robinson’s

arrest was supported by probable cause might affect Robinson’s

other    claims,     as   well.        For    instance,       probable    cause     is

sufficient      to   justify       a   public     arrest      under   the    Fourth

Amendment, regardless of the validity of the arrest warrants

obtained by the officers or any deficiencies in the affidavits

supporting them.          See Graves v. Mahoning Cty., 821 F.3d 772,

774-76   (6th    Cir.     2016).       And    whether   the    officers     in    fact

arrested Robinson without probable cause also may be relevant to

Robinson’s failure-to-train claim against the City and to his

state-law malicious prosecution claims.                 We express no view on

those issues, and leave it to the district court to consider in

the   first   instance     what    effect,      if   any,   its   disposition      of

Robinson’s claim that he was arrested without probable cause has

on the remainder of this case.



                                                 VACATED IN PART AND REMANDED




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