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                                                                        [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-15118
                          ________________________

                      D.C. Docket No. 1:15-cv-03307-LMM



AUSTIN GATES,

                                                          Plaintiff-Appellee,

versus



HASSAN KHOKHAR, individually,
J. BRAUNINGER, individually,
JAMES WAYNE WHITMIRE, individually,
Officers of the City of Atlanta Police Department,

                                                           Defendants-Appellants.

                          ________________________

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

                                (March 13, 2018)
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Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS,*
District Judge.


JULIE CARNES, Circuit Judge:

       This action arises from Plaintiff Austin Gates’s arrest for violating Georgia’s

mask statute, O.C.G.A. § 16-11-38, during a protest in downtown Atlanta on

November 26, 2014. Plaintiff alleges that he was arrested without probable cause

in violation of the Fourth Amendment, and that this flawed arrest also violated the

First Amendment and various state laws. In this appeal, we consider his claims

against three City of Atlanta police officers who were involved in the arrest:

defendants Khokhar, Brauninger, and Whitmire (collectively “Defendants”). As to

these individual officers, and based on this arrest, Plaintiff has asserted federal

claims, pursuant to 42 U.S.C. § 1983, as well as state law claims for assault and

battery, invasion of privacy, unlawful detention, and malicious prosecution.

Defendants filed a motion to dismiss Plaintiff’s § 1983 and state law claims on the

grounds of qualified immunity and official immunity. The district court, however,

denied their motion, and they now appeal.

       Having carefully reviewed the record, and after hearing oral argument, we

conclude that Defendants are entitled to qualified immunity on Plaintiff’s § 1983

claims and to official immunity on Plaintiff’s state law claims. Accordingly, we
*
   Honorable Kathleen Williams, United States District Judge for the Southern District of Florida,
sitting by designation.

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REVERSE the district court’s order denying the motion to dismiss and REMAND

the case for further proceedings consistent with this opinion.

                                     BACKGROUND

        We assume the following facts to be true for purposes of this appeal. 1 On

November 26, 2014, Plaintiff participated in a march in downtown Atlanta to

protest a grand jury’s decision in a police-shooting case in Ferguson, Missouri.

During the protest, Plaintiff was given a “V for Vendetta” mask by another

protestor. As the image attached to the complaint shows, the mask is a stylized

image of the Guy Fawkes character from the movie “V for Vendetta.” It is

designed to cover the entire face. According to Plaintiff, the mask has become

popular among people protesting against politicians, banks, and financial

institutions. Plaintiff acknowledges that he and other protesters wore the “V for

Vendetta” masks during this Ferguson protest in Atlanta. Plaintiff alleges that he

wore the mask both to “express himself and his disagreement with the Ferguson,

Missouri grand jury’s decision,” and to maintain his anonymity during the protest.

Plaintiff claims he never intended to threaten or intimidate anyone by wearing the

mask.



1
  When considering the merits of a motion to dismiss under Federal Rule 12(b)(6), we accept the
factual allegations in the complaint as true and construe them in the light most favorable to
Plaintiff. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). Thus, we take all of
the relevant facts from the allegations in Plaintiff’s complaint.
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        At some point during the protest, Defendant Whitmire ordered the protesters

to remove their masks. Plaintiff acknowledges that Whitmire warned the

protesters multiple times over a loudspeaker that any person wearing a mask

during the protest would be arrested. Plaintiff, however, claims he did not hear the

warning. Whitmire subsequently issued an order over the radio for the police to

arrest anyone who was wearing a mask.

        According to Plaintiff, after Whitmire issued the order to arrest protesters

wearing masks, a “swarm” of officers dressed in riot gear, including Defendant

Khokhar, pushed their way into the protesting crowd. Plaintiff alleges that

Khokhar grabbed Plaintiff by the shoulder, pulled him by the strap of his backpack,

and arrested him. When Plaintiff asked what he had done and why he was being

arrested, Khokhar did not immediately respond. After conferring with other

officers, Khokhar “handcuffed [Plaintiff] with plastic cuffs” and “shoved [him]

into [a] police car.” Khokhar told Plaintiff that he was being arrested for wearing a

mask.

        Plaintiff alleges that he subsequently was taken to the Zone 5 precinct,

where he was searched and then left in a chair in a back room, handcuffed. While

Plaintiff was detained, Khokhar drafted an offense report charging Plaintiff with

violating Georgia’s mask statute, O.C.G.A. § 16-11-38. The report stated:

        I [Officer Khokhar] observed [Plaintiff] wear a “V for Vendetta”
        mask. [Plaintiff] was actively participating in a protest. The protest
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       had been warned on the loud speakers multiple times that anyone
       wearing a mask will be arrested. This information was relayed by
       Unit 15 over the radio that anyone wearing a mask should be arrested.
       [Plaintiff] still had his mask on. [Plaintiff] was arrested for wearing a
       mask.

Defendant Brauninger, Khokhar’s supervising officer, reviewed and authorized the

offense report.

       Based on the charges asserted against him in the offense report, Plaintiff,

along with other arrestees from the protest, was booked, searched, and

photographed at the precinct. After several hours of waiting at the precinct,

Plaintiff was taken to the Fulton County jail. Once he arrived at the jail, Plaintiff

was able to make a phone call and ultimately post bail.

       Plaintiff filed a complaint about his arrest with the City of Atlanta Office of

Professional Standards. The City determined that Plaintiff’s arrest was “justified,

lawful, and proper” and exonerated all of the officers who were involved in it. As

noted, Plaintiff thereafter sued the City of Atlanta and the individual officers,

asserting § 1983 claims and state law claims. The individual officers moved to

dismiss Plaintiff’s § 1983 claims on the ground of qualified immunity and his state

law claims on the ground of official immunity. 2 The district court denied the

motion.


2
  The City of Atlanta moved to dismiss Plaintiff’s § 1983 claims under Monell v. Dep’t of Soc.
Serv. of City of New York, 436 U.S. 658 (1978), and to dismiss his state claims under the doctrine
of sovereign immunity. The district court denied the City’s Monell motion, but granted its
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                                       DISCUSSION

I.     Standard of Review

       We review the denial of a Rule 12(b)(6) motion to dismiss on qualified or

official immunity grounds de novo, applying the same standard as the district

court. See Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). When ruling on

a motion to dismiss, we “accept[] the facts alleged in the complaint as true,

drawing all reasonable inferences in the plaintiff’s favor.” Keating v. City of

Miami, 598 F.3d 753, 762 (11th Cir. 2010). To avoid dismissal, the “complaint

must contain sufficient factual matter . . . to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted). A complaint is plausible on its face when it contains sufficient facts to

support a reasonable inference that the defendant is liable for the misconduct

alleged. Id.

II.    Qualified Immunity

       A.      Standard

       Defendants argue that they are entitled to qualified immunity on Plaintiff’s

federal constitutional claims asserted under § 1983. “Qualified immunity protects

government officials performing discretionary functions from suits in their




motion based on sovereign immunity. This appeal, however, does not involve those rulings, but
instead concerns only the district court’s denial of the individual officers’ motion to dismiss.
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individual capacities unless their conduct violates clearly established statutory or

constitutional rights of which a reasonable person would have known.” Dalrymple

v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (internal quotation marks omitted).

“When properly applied, [qualified immunity] protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011).

      To be clearly established, a right must be well-established enough “that

every reasonable official would have understood that what he is doing violates that

right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks

omitted and alteration adopted). In other words, “existing precedent must have

placed the statutory or constitutional question beyond debate” and thus given the

official fair warning that his conduct violated the law. Id. (emphasis added); Coffin

v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (“The critical inquiry is

whether the law provided [Defendant officers] with ‘fair warning’ that their

conduct violated the Fourth Amendment.”).

      Fair warning is most commonly provided by materially similar precedent

from the Supreme Court, this Court, or the highest state court in which the case

arose. See Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). However, a

judicial precedent with identical facts is not essential for the law to be clearly

established. Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).

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Authoritative judicial decisions may “establish broad principles of law” that are

clearly applicable to the conduct at issue. Griffin Indus., Inc. v. Irvin, 496 F.3d

1189, 1209 (11th Cir. 2007). And occasionally, albeit not very often, it may be

obvious from “explicit statutory or constitutional statements” that conduct is

unconstitutional. Id. at 1208–09. In all of these circumstances, qualified immunity

will be denied only if the preexisting law by case law or otherwise “make[s] it

obvious that the defendant’s acts violated the plaintiff’s rights in the specific set of

circumstances at issue.” Youmans, 626 F.3d at 563.

      A defendant who asserts qualified immunity has the initial burden of

showing he was acting within the scope of his discretionary authority when he took

the allegedly unconstitutional action. See Bennett v. Hendrix, 423 F.3d 1247, 1250

(11th Cir. 2005). Assuming the defendant makes the required showing, the burden

shifts to the plaintiff to establish that qualified immunity is not appropriate by

showing that (1) the facts alleged make out a violation of a constitutional right and

(2) the constitutional right at issue was clearly established at the time of the alleged

misconduct. See Perez v. Suszczynski, 809 F.3d 1213, 1218 (11th Cir. 2016).

Plaintiff does not dispute that Defendants were acting in their discretionary

authority when they arrested him on November 26, 2014. The burden thus lies

with Plaintiff to show that his arrest violated a constitutional right and that the right




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was clearly established at the time of the arrest. See id. Plaintiff cannot satisfy

either prong of this analysis.

      B.     District Court’s Order

      The district court implicitly agreed that Defendants had probable cause to

arrest Plaintiff based on the elements of the mask law as set out in the statute. The

court, however, noted that the Georgia Supreme Court has also imposed a mens rea

element onto the statute, requiring that the wearer of the mask know or reasonably

should know that his actions give rise to a reasonable apprehension of intimidation,

threats, or impending violence. The district court further added that Plaintiff had

alleged that he never intended to threaten, intimidate, or cause the apprehension of

violence by his mask-wearing. Given this protestation by Plaintiff in his

complaint, the district court concluded that the defendant officers lacked even

arguable probable cause to arrest Plaintiff for violating the mask statute.

      Addressing whether existing precedent gave Defendants fair notice that an

arrest under these circumstances would be unlawful, the district court stated, “The

Eleventh Circuit has concluded that it is ‘clearly established that an arrest without

probable cause to believe a crime has been committed violates the Fourth

Amendment.’ Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990).”

(emphasis in district court order) (alteration accepted). The court concluded that




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Defendants were therefore on notice that their arrest in this case was unlawful. We

disagree with the district court’s analysis.

C.    Constitutional Violation: False Arrest

      In support of his § 1983 claims, Plaintiff alleges that he was arrested without

probable cause while engaging in a protest, which action, he says, violated his

Fourth Amendment and First Amendment rights. It is true that a warrantless arrest

lacking probable cause violates the Constitution, and such an arrest can therefore

potentially underpin a § 1983 claim. Brown v. City of Huntsville, Ala., 608 F.3d

724, 734 (11th Cir. 2010). The converse is also true, which means that “the

existence of probable cause at the time of arrest is an absolute bar to a subsequent

constitutional challenge to the arrest.” Id. See also Dahl v. Holley, 312 F.3d 1228,

1236 (11th Cir. 2002) (observing that “[w]hatever the officers’ motivation . . . the

existence of probable cause to arrest [the plaintiff] defeats [a] First Amendment

claim” arising out of the arrest); Redd v. City of Enterprise, 140 F.3d 1378, 1383

(11th Cir. 1998) (in the context of a First Amendment claim arising from an

alleged false arrest, observing that “[w]hen a police officer has probable cause to

believe that a person is committing a particular public offense, he is justified in

arresting that person, even if the offender may be speaking at the time that he is

arrested.”).




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      “Probable cause exists where the facts within the collective knowledge of

law enforcement officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that a criminal offense

has been or is being committed.” Brown, 608 F.3d at 734. It requires only “a

probability or substantial chance of criminal activity, not an actual showing of such

activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Thus, “innocent

behavior frequently will provide the basis for a showing of probable cause.” Id.

Indeed, “[t]he Constitution does not guarantee that only the guilty will be arrested.

If it did, § 1983 would provide a cause of action for every defendant acquitted—

indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 145 (1979).

      Even without actual probable cause, however, a police officer is entitled to

qualified immunity if he had only “arguable” probable cause to arrest the plaintiff.

See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). Moreover, when an

officer has arguable probable cause to arrest, he is entitled to qualified immunity

both from Fourth Amendment claims for false arrest and from First Amendment

claims stemming from the arrest. See Redd, 140 F.3d at 1383–84 (because officers

had arguable probable cause to arrest plaintiff (a minister preaching loudly on the

sidewalk) for disorderly conduct, the officers were entitled to qualified immunity

from both plaintiff’s First and Fourth Amendment claims).




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      “Arguable probable cause exists where reasonable officers in the same

circumstances and possessing the same knowledge as the [defendant] could have

believed that probable cause existed to arrest.” Id. (emphasis added and internal

quotation marks omitted). See also Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.

2003) (“[T]he inquiry is . . . whether an officer reasonably could have believed that

probable cause existed, in light of the information the officer possessed.” (internal

quotation marks omitted)).

      Whether an officer has probable cause or arguable probable cause, or

neither, “depends on the elements of the alleged crime and the operative fact

pattern.” Brown, 608 F.3d at 735. The rationale behind qualified immunity is that

an officer who acts reasonably should not be held personally liable merely because

it appears, in hindsight, that he might have made a mistake. The concept of

arguable probable cause therefore allows for the possibility that an officer might

“reasonably but mistakenly conclude that probable cause is present.” Id. Under

this Court’s governing precedent, such an officer likewise cannot be held

personally liable for false arrest.

      Viewing the facts in the light most favorable to Plaintiff, we think

Defendants had actual probable cause to arrest Plaintiff for violating Georgia’s

mask statute. But even assuming they lacked actual probable cause, these officers

clearly had arguable probable cause. We explain why.

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      The Georgia mask statute makes it a misdemeanor for a person to “wear[] a

mask, hood, or device by which any portion of the face is so hidden, concealed, or

covered as to conceal the identity of the wearer” while he is “upon any public way

or public property.” O.C.G.A. § 16-11-38(a). The statute includes exceptions for:

      (1)    A person wearing a traditional holiday costume on the occasion
             of the holiday;

      (2)    A person lawfully engaged in trade and employment or in a
             sporting activity where a mask is worn for the purpose of
             ensuring the physical safety of the wearer, or because of the
             nature of the occupation, trade, or profession, or sporting
             activity;

      (3)    A person using a mask in a theatrical production including use
             in Mardi gras celebrations and masquerade balls; or

      (4)    A person wearing a gas mask prescribed in emergency
             management drills and exercises or emergencies.

Id. § 16-11-38(b).

      In addition to the statutory exceptions, the Georgia mask statute must be

read in light of the limitations placed on it by the Georgia Supreme Court in State

v. Miller, 260 Ga. 669 (1990) and Daniels v. State, 264 Ga. 460 (1994). In Miller,

a Ku Klux Klan member—challenging the constitutionality of the mask statute—

appeared in public wearing the traditional Klan regalia, including a mask that

covered his face. Miller, 260 Ga. at 669. He was the only Klan member present in

Klan clothing (and, thus, was part of no mass demonstration) and other than his

mask-wearing, engaged in no threatening or intimidating conduct and caused no
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breach of the peace. Id. at 678 (Smith, J. dissenting). Miller claimed that by

prohibiting him from wearing a mask in public, the statute violated his right to

engage in symbolic speech. See id. at 669–72. Explaining that the statute was

intended to protect “the people of Georgia from terrorization by masked vigilantes”

and “hate” organizations such as the Klan, id. at 672, the Georgia Supreme Court

determined that the State had a compelling interest in providing such protection,

and that the mask statute furthered that interest by prohibiting the “intimidation,

violence, and actual and implied threats” often associated with public mask-

wearing. Id. Accordingly, the Court upheld the constitutionality of the statute

with the proviso that a person can be convicted of violating it only if the State also

proves that (1) the mask is worn with the intent to conceal the identity of the

wearer and (2) the wearer of the mask “knows or reasonably should know that [his]

conduct provokes a reasonable apprehension of intimidation, threats, or violence.”

Id. at 674.

      In Daniels, the Georgia Supreme Court applied the intent requirement

recognized in Miller to reverse a defendant’s conviction under the mask statute.

See Daniels, 264 Ga. at 464. The defendant in Daniels had been arrested and

convicted of violating the mask statute after police officers observed him, during

daylight hours, talking to several children in the street while wearing an old

football helmet and a wrestling mask. See id. at 461, 463. Evidence presented at

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the bench trial, however, indicated that the defendant was simply trying to

entertain neighborhood children by wearing the helmet and mask, and that, under

those circumstances, there was no intent to intimidate them or reckless disregard

for the possibility that they might be intimidated. See id. at 461–63. The Georgia

Supreme Court reversed the conviction, citing Miller and emphasizing that, in

order to obtain a conviction under the mask statute, the State must show that the

mask-wearer “(1) intended to conceal his identity, and (2) either intended to

threaten, intimidate, or provoke the apprehension of violence, or acted with

reckless disregard for the consequences of his conduct. . . with reasonable foresight

that injury would occur;” id. at 464; that is, with reasonable foresight that his

conduct would threaten, intimidate, or cause the apprehension of violence.

      Taking into account the statutory elements of O.C.G.A. § 16-11-38, as

interpreted by the Georgia Supreme Court in Miller and Daniels, we conclude that

Defendants had probable cause to arrest Plaintiff for violating the mask statute

under the circumstances alleged in the complaint. Construed in Plaintiff’s favor,

the facts within the collective knowledge of Defendant officers were as follows.

Defendant officers were on the public streets of Atlanta as a “crowd” of

demonstrators marched peacefully in protest of the grand jury decision in the

Ferguson, Missouri police shooting case. Some of the protestors— including

Plaintiff—were wearing “V for Vendetta” masks. The masks covered the entire

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face and, thus, concealed the identity of the wearer. At about 9:15 p.m., the police

began ordering the protestors to disperse. Officers also issued “repeated orders”

over loud speakers for protestors to remove their masks or be subject to arrest. At

about 10:00 p.m., a “swarm of officers in full riot gear pushed their way into the

crowd” of protestors. Officer Khokar then arrested Plaintiff, who was still wearing

his mask as he continued to march on public property.

      Plaintiff alleges no facts that would support the application of any of the

statutory exceptions to the prohibition on mask-wearing. That is, Plaintiff was not

wearing the mask as part of a traditional holiday costume or theatrical production,

for the purpose of ensuring his safety while engaged in a particular trade,

profession, or sporting activity, or during an emergency or emergency drill. See

O.C.G.A. § 16-11-38(b). Given these facts, an objectively reasonable officer at the

scene could have believed that probable cause existed to arrest Plaintiff for

violating the mask statute. See Lee, 284 F.3d at 1195.

      Plaintiff argues, however, that when one also factors in the additional intent

requirement imposed onto the statute by Miller and Daniels for purposes of

sustaining a conviction, Defendants had neither arguable nor actual probable cause

to believe that Plaintiff wore the “V for Vendetta” mask with the intent to threaten,

intimidate, or provoke the apprehension of violence, or with reckless disregard for

the fact that his conduct could cause the above reaction. We disagree.

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       First, as far as arguable probable cause is concerned, our Court has

repeatedly held that “[s]howing arguable probable cause does not . . . require

proving every element of a crime.” Brown, 608 F.3d at 735. See also Dahl, 312

F.3d at 1234 (“That the officers had no specific evidence as to [one] element, [as

necessary to sustain a conviction] at trial, did not prevent them from having

probable cause to make the arrest.”); Scarbrough v. Myles, 245 F.3d 1299, 1302–

03 (11th Cir. 2001) (“Arguable probable cause does not require an arresting officer

to prove every element of a crime[.]”). To require an arresting officer to prove

every element of a crime “would negate the concept of probable cause and

transform arresting officers into prosecutors.” Lee, 284 F.3d at 1195. In

particular, we have never pronounced a rigid requirement that an arresting officer

must have specific evidence of the subjective intent and knowledge of a subject

beyond the subject’s conduct that otherwise gives rise to probable cause to arrest.

In fact, we have acknowledged that “no police officer can truly know another

person’s subjective intent.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir.

2007). 3



3
  Of interest, albeit not dispositive for purposes of a § 1983 analysis, the Georgia Supreme Court
has suggested that an arrest for violation of the mask statute can be lawful, even though the facts
concerning the intent element would be insufficient to justify a conviction. In Miller, the
Georgia Supreme Court distinguished between the evidence sufficient to support an arrest under
the mask statute and the evidence required to sustain a conviction, noting that the defendant’s
arrest was constitutional but that “[t]he particular facts of [the] case may or may not support
conviction under the statute.” See Miller, 260 Ga. at 671 n.1.
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      The Georgia Supreme Court has instructed that, in assessing whether a

mask-wearer acts with the requisite criminal intent, one must consider the

surrounding circumstances. See Miller, 260 Ga. at 674; Daniels, 264 Ga. at 463–

64. Given the circumstances of this case, an objectively reasonable officer in

Defendants’ position could have believed that Plaintiff was either actually trying to

intimidate or reasonably would have known that his conduct would provoke a

reasonable apprehension that he was doing so, which is, in relevant part, the intent

element imported into the statute by the Georgia Supreme Court in Miller and

Daniels for purposes of sustaining a conviction.

      Like some other protesters, Plaintiff was wearing a mask that covered his

entire face, and thus concealed his identity, during this night-time protest. That

conduct might be sufficient by itself to suggest an intent to intimidate. But there is

more: the calculus changed dramatically when the police repeatedly asked the

masked protesters to remove their masks, else be arrested. Notwithstanding this

command, Plaintiff nonetheless persisted, in what could reasonably be perceived as

defiance of this lawful order by the police. A reasonable officer could infer that

Plaintiff intended to intimidate based on such conduct, or, at the least, infer that

Plaintiff could reasonably foresee that his behavior would be viewed as

intimidating. Cf. Miller, 260 Ga. at 671–72 (recognizing that a “nameless, faceless

figure strikes terror in the human heart”).

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      That Plaintiff now alleges he did not hear Whitmire’s warnings to remove

his mask is immaterial. For purposes of our qualified immunity analysis, “we look

only to whether a reasonable officer, knowing what [Defendants] knew at the time,

objectively could have believed probable cause existed.” See Brown, 608 F.3d at

736 (emphasis added). Here, over a loud speaker, the police issued multiple

warnings directing protestors to remove their masks. Given all the surrounding

circumstances, an objective officer could reasonably have interpreted Plaintiff’s

refusal to comply with multiple orders to remove his mask as a gesture intended to

intimidate. See id. (where a disorderly conduct statute required an intent to create

public annoyance, but where the arresting officer could not know for sure what the

plaintiff’s intent was, the plaintiff’s “actions in playing loud music, stopping her

car, and rolling her window down could have indicated to an objectively

reasonable officer at the scene that [the plaintiff] was making unreasonable noise

with intent to create public annoyance” in violation of the statute); Lee, 284 F.3d at

1195 (concluding that there was arguable probable cause for the plaintiff’s arrest

because “[a] prudent law enforcement officer . . . could have believed that [the

plaintiff] was honking her horn for a purpose other than signaling danger,” in

violation of a county noise ordinance).

      In concluding that arguable probable cause to arrest was lacking, the district

court relied on Plaintiff’s allegation that he never intended to intimidate anyone

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through his wearing of the V for Vendetta mask. Ergo, the court concluded,

arguable probable cause evaporated. This approach was error. It is not Plaintiff’s

post-hoc explanation of his actions that counts. What matters is what a reasonable

police officer under the circumstances could infer from those actions. A

reasonable officer could infer that, in disobeying Whitmire’s commands to remove

his mask, Plaintiff actually intended to intimidate or, at the least, acted with

“reasonable foresight” that his conduct would do so.

       Although not outcome-determinative, we also note that, in explaining the

origins of the Guy Fawkes mask, Plaintiff implicitly acknowledges that the mask

could be perceived as celebrating violent protest against the government.

Specifically, the complaint links to an article4 that describes Guy Fawkes as “an

infamous insurgent who tried to blow up the British Parliament in 1605.” See

http://theweek.com/articles/463151/brief-history-guy-fawkes-mask. The article

notes that the Guy Fawkes mask became more familiar in popular culture

following release of the graphic novel and film V for Vendetta, whose protagonist

is a vigilante who attempts to destroy the government. Id. The association of the

“V for Vendetta” mask with vigilantism and the violent overthrow of the

4
  The article states, in part: “Over the past decade, dissidents across the globe have appropriated
the visage of Guy Fawkes, the infamous insurgent who tried to blow up the British Parliament in
1605, warping the once-reviled fringe rebel into a widespread symbol of resistance. The iconic
version of the Guy Fawkes mask owes its popularity to the graphic novel and film V for
Vendetta, which centers on a vigilante’s efforts to destroy an authoritarian government in a
dystopian future United Kingdom. See http://theweek.com/articles/463151/brief-history-guy-
fawkes-mask for the full article.
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government could have further bolstered an objectively reasonable officer’s

determination that, by his insistence on wearing this mask, Plaintiff intended to

threaten and intimidate the police. See Wood, 323 F.3d at 878 (emphasizing that

whether arguable probable cause exists is determined by considering the “totality

of the circumstances”).

      In short, and for all of the above reasons, we conclude that Defendants, at

the very least, had arguable probable cause to arrest Plaintiff for violation of the

mask statute. We disagree with the district court’s conclusion to the contrary.

      D.     Clearly Established Law

      In deciding that clearly established law existed sufficient to put Defendants

on notice that their arrest of Plaintiff was unconstitutional, the district court made

the following statement: “The Eleventh Circuit has concluded that it is “clearly

established than an arrest without probable cause to believe a crime had been

committed violates the Fourth Amendment.” (citation omitted) (emphasis in

district court order). Of course, no one would disagree that the Fourth Amendment

requires an arrest to be based on probable cause. But we reiterate that an officer

who has arrested someone without probable cause might still be entitled to

immunity. This is so because the “clearly-established” inquiry does not ask

whether there was probable cause in actuality. Instead, it asks whether the pre-

existing law was so clear that, given the specific facts facing a particular officer,

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one must say that “every reasonable official would have understood that what he is

doing violates” the Constitutional right at issue. al-Kidd, 563 U.S. at 741.

      In framing its inquiry more broadly than the above standard permits, the

district court erred, running afoul of the Supreme Court’s oft-repeated directive

“not to define clearly established law at a high level of generality.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks omitted). See also

White v. Pauly, 137 S. Ct. 548, 552 (2017) (“Today, it is again necessary to

reiterate the longstanding principle that clearly established law should not be

defined at a high level of generality.” (internal quotation marks omitted)); City &

Cnty. of San Francisco, Ca. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015)

(overruling the denial of qualified immunity and explaining that “[q]ualified

immunity is no immunity at all if ‘clearly established’ law can simply be defined

as the right to be free from unreasonable searches and seizures.”); Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014) (overruling the denial of qualified immunity

and commanding courts “not to define clearly established law at a high level of

generality . . . since doing so avoids the crucial question whether the official acted

reasonably in the particular circumstances that he or she faced.”); Reichle, 566

U.S. at 665 (reversing the denial of qualified immunity and reiterating that “we

have previously explained that the right allegedly violated must be established, not

as a broad general proposition, but in a particularized sense so that the contours of

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the right are clear to a reasonable official.” (quotations and citations omitted); al-

Kidd, 563 U.S. at 742 (overruling the denial of qualified immunity); Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (overruling the denial of qualified immunity:

assertion of a general constitutional or statutory right is insufficient to defeat

qualified immunity because “[i]f the test of ‘clearly established law’ were to be

applied at this level of generality, . . . [p]laintiffs would be able to convert the rule

of qualified immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.”). Rather, the clearly established

law inquiry “must be particularized to the facts of the case.” White, 137 S. Ct. at

552 (internal quotation marks omitted).

      Reframing the analysis to conform with the direction of the Supreme Court,

the dispositive question is whether it was already clearly established, as a matter of

law, that at the time of Plaintiff’s arrest, an objective officer could not have

concluded reasonably that probable cause existed to arrest Plaintiff under the

particular circumstances Defendants confronted. See Mullenix, 136 S. Ct. at 308

(“The dispositive question is whether the violative nature of particular conduct is

clearly established.” (internal quotation marks omitted)). Again, resolution of the

clearly-established test does not depend on whether a judge might decide later that

probable cause was lacking in fact. Instead, the test asks whether already existing

law was so clear that, given the specific facts facing this particular officer, one

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must conclude that “every reasonable official would have understood that what he

is doing violates” the Constitutional right at issue. al-Kidd, 563 U.S. at 741. That

judges disagree about a constitutional issue is itself evidence that a right is

insufficiently clearly established for purposes of denying qualified immunity. See

Wilson v. Layne, 526 U.S. 603, 618 (1999) (noting that “[i]f judges thus disagree

on a constitutional question, it is unfair to subject police to money damages for

picking the losing side of the controversy.”).

       Plaintiff does not cite, and we have not found, any already existing law that

clearly established—beyond debate—the unlawfulness of an arrest under the

circumstances present here. 5 And that is not surprising, given our conclusion that,

at the very least, Defendants arguably had probable cause to arrest. Because we

conclude—as a matter of law—that Defendants violated no already clearly

established right, we thus conclude that the district court erred in denying

5
  What the Georgia Supreme Court decided in Miller is that Georgia’s mask statute prohibits
“mask-wearing conduct when the mask-wearer knows or reasonably should know that the
conduct provokes a reasonable apprehension of intimidation, threats or violence”: an intent that
must be determined based on the surrounding circumstances of the case. Miller, 260 Ga. at 674.
Then, in rejecting Miller’s equal protection challenge, the Georgia Supreme Court observed that
“In our view, the statute distinguishes appropriately between mask-wearing that is intimidating,
threatening or violent and mask-wearing for benign purposes. It would be absurd to interpret the
statute to prevent non-threatening political mask-wearing, or to condone threatening mask-
wearing conduct on a holiday.” Id. at 676. The “It would be absurd…” language is not the
holding in the case, meaning it articulates no clearly established rule for purposes of federal
qualified immunity. See Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (“There is, of course,
an important difference between the holding in a case and the reasoning that supports that
holding.”). But had the Miller court flatly construed the statute as proscribing only “threatening”
conduct, no case authority existed in 2014 that would have obviously alerted Defendants that
Plaintiff’s conduct here could not be deemed as threatening, under all the circumstances.

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Defendants’ motion to dismiss based on qualified immunity. Accordingly, we

reverse the district court’s denial of that motion.

III.     Official Immunity

         In addition to his federal claims, Plaintiff asserts state claims against

Defendants alleging that they violated his privacy rights, committed an assault and

battery against him, and unlawfully detained and maliciously prosecuted him.

Defendants moved to dismiss Plaintiff’s state claims on the ground of official

immunity, which under Georgia law protects an officer from personal liability

arising from his performance of “official functions” as long as the officer did not

act with “actual malice” or “actual intent to cause injury.” See Ga. Const. art. I,

§ 2, para. IX(d). The district court likewise denied this motion.

         Similar to qualified immunity, official immunity is intended to “preserve the

public employee’s independence of action without fear of lawsuits and to prevent a

review of his or her judgment in hindsight.” Cameron v. Lang, 274 Ga. 122, 122–

23 (2001). It applies to an officer’s “discretionary actions 6 taken within the scope

of [his] official authority.” Id.

         The parties agree that Defendants were performing a discretionary act within

the scope of their official authority when they arrested Plaintiff. Thus, Defendants

can only be liable on Plaintiff’s state claims if they acted with “actual malice” or

6
    Officers can incur personal liability for the negligent performance of “ministerial functions.”
See Ga. Const. art. I, § 2, para. IX(d).
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“actual intent to cause injury” as required to overcome official immunity. See

Adams v. Hazelwood, 271 Ga. 414, 414–15 (1999) (applying Georgia’s official

immunity provision). The Georgia Supreme Court has defined actual malice in

this context to mean a “deliberate intention to do wrong.” Id. As such, actual

malice is not established merely by showing that the defendant acted with “ill

will.” Id. Nor does actual malice encompass merely “the reckless disregard for

the rights and safety of others.” West v. Davis, 767 F.3d 1063, 1073 (11th Cir.

2014) (internal quotation marks omitted). Likewise, the phrase “actual intent to

cause injury”—as used in Georgia’s official immunity provision—means “an

actual intent to cause harm to the plaintiff, not merely an intent to do the act

purportedly resulting in the claimed injury.” Id. (internal quotation marks

omitted).

      None of the facts alleged in the complaint support a plausible claim that

Defendants acted with actual malice or an actual intent to injure Plaintiff, as those

terms have been defined by the Georgia Supreme Court. The only allegations that

could potentially be relevant to a finding of actual malice or intent to injure are

that: Defendants approached Plaintiff in “full riot gear” and arrested him without

probable cause; they “pushed” or “pulled” Plaintiff while making the arrest; they

handcuffed Plaintiff, transported him to the precinct and jail, and processed and

booked him; and they made Plaintiff wait approximately twelve hours without

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food, water, or a place to sleep. Construing these allegations as liberally as

possible, together with our conclusion that arguable probable cause existed, the

most that can be made of them is that Plaintiff was arrested and subjected to the

routine inconveniences that attend any arrest. These facts are obviously

insufficient to show actual malice or intent to injure. See Reed v. DeKalb Cty., 264

Ga. App. 83, 86 (2003) (“Even when an arresting officer operates on a mistaken

belief that an arrest is appropriate, official immunity still applies.”); Selvy v.

Morrison, 292 Ga. App. 702, 705 (2008) (holding that much more egregious

conduct on the part of an arresting officer than is alleged by Plaintiff “may have

shown poor judgment, rude behavior, and reckless disregard for the rights and

safety of others” but not actual malice or intent to injure).

      Accordingly, for the above reasons, we reverse the district court’s denial of

Defendants’ motion to dismiss state-law claims made against them.

                                   CONCLUSION

      We conclude that Defendants are entitled to qualified immunity on

Plaintiff’s § 1983 claims and to official immunity on Plaintiff’s state claims. We

therefore REVERSE the district court’s order denying dismissal of these claims

under Federal Rule 12(b)(6) and REMAND the case with the direction that the

district court dismiss these claims against the individual defendants.




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KATHLEEN M. WILLIAMS, District Judge, dissenting in part:

         Although I agree that official immunity warrants dismissal of the state-law

claims against Appellants, I do not agree that the officers are entitled to qualified

immunity on Gates’s federal claims. More specifically, I believe that Gates has

adequately pled that Appellants lacked actual or arguable probable cause to arrest

him for wearing a Guy Fawkes mask during an admittedly peaceful protest in

downtown Atlanta. Therefore, I would affirm the district court’s finding that

Gates’s First and Fourth Amendment claims should survive a motion to dismiss.1


         The majority concludes otherwise, based on a qualified immunity analysis

that fails to adequately address the First-Amendment implications of the conduct

and statute at issue here. While it is true that the existence of probable cause to

arrest can defeat a First Amendment claim arising out of that arrest in certain

circumstances—for example in cases like Dahl and Redd, where a presumptively

valid arrest under an unrelated statute for non-protected conduct had the ancillary

1
    Because we are addressing this case on a motion to dismiss, the allegations in the amended
    complaint and its attachments, taken as true, must control our analysis of whether Gates has
    alleged a violation of a clearly established constitutional right that would preclude the
    application of qualified immunity. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir.
    2010) (“We review the denial of a motion to dismiss de novo and determine whether the
    complaint alleges a clearly established constitutional violation, accepting the facts alleged in
    the complaint as true, drawing all reasonable inferences in the plaintiff’s favor, and limiting
    our review to the four corners of the complaint.”); Ledea v. Metro-Dade Cty. Police Dep’t, 681
    F. App’x 728, 729 (11th Cir. 2017) (explaining that the qualified immunity analysis and the
    12(b)(6) standard “become intertwined” at the motion to dismiss stage).
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effect of terminating protected speech—it is not appropriate here. This is because

the Anti-Mask Act, which was purportedly the sole basis of Gates’s arrest, was

itself challenged under the First Amendment over two decades ago in State v.

Miller, 260 Ga. 669 (1990); it was saved only by implementing a narrowing

construction of the statutory text that circumscribed the conduct subject to criminal

penalty. 2 Consequently, determining probable cause for arrest under the Anti-

Mask Act—which underpins both the Fourth and First Amendment claims—

necessarily requires an evaluation of whether Gates’s actions fell within the

category of protected expression that was deliberately identified as such by the

Miller court.


          The first question addressed in a qualified immunity analysis is whether the

right was “clearly established” at the time of the alleged violation. In order to

demonstrate that a right is “clearly established” for the purposes of qualified

immunity, “[w]e do not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate.” Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011). Under this standard, even assuming that the

“clearly established right” must be defined more narrowly than an “arrest without

2
    As the majority acknowledges, the Miller court narrowed the reach of the statute to cover “only
    . . . mask-wearing . . . when the mask-wearer knows or reasonably should know that the
    conduct provokes a reasonable apprehension of intimidation, threats or violence,” which “does
    not reach a substantial amount of constitutionally protected conduct” because “the restriction is
    limited to threats and intimidation, which is not protected expression under the First
    Amendment.” State v. Miller, 260 Ga. 669, 674 (1990).
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probable cause . . . violates the Fourth Amendment,” the specific right at issue

here—whether individuals can be subject to arrest for wearing a mask during a

peaceful protest—was “clearly established” at the time of Gates’s arrest.


      This Circuit has unambiguously held that “[our] [d]ecisions . . . have put

police officers on notice for decades that protestors present on public property have

a First Amendment right to peacefully express their views, in the absence of

narrowly tailored ordinances restricting the time, place, or manner of the speech.”

Childs v. Dekalb Cty., Ga., 286 F. App’x 687, 693-94 (11th Cir. 2008). Based

upon this body of caselaw, the Childs court determined that the officers in that case

were not entitled to qualified immunity on the First Amendment claims arising out

of an allegedly false arrest, because it was “one of those cases where ‘a general

constitutional rule already identified in the decisional law [applies] with obvious

clarity to the specific conduct in question.’” Id. The same is true here.


      But even beyond the clearly established right to peacefully protest that is set

out in the First Amendment, it would be unreasonable for the officers to believe

that the Anti-Mask Act was intended to cover the type of protected speech at issue

here. As the Miller court declared in defending the constitutionality of the Anti-

Mask Act twenty years ago, “[i]t would be absurd to interpret the statute to prevent

non-threatening political mask-wearing.” Miller, 260 Ga. at 676. Contrary to the


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majority’s suggestion, this pronouncement made clear that such conduct had never

fallen within the purview of the Act; the court “eschew[ed] such a construction of

the statute.” Miller, 260 Ga. at 676 (1990). Thus, under any reading of what

constitutes a clearly established right, there can be no doubt that “every reasonable

official would have understood” that if Gates was engaging in “non-threatening

political mask-wearing,” there was no probable cause for arrest under the Anti-

Mask Act and the officers cannot be shielded from suit by qualified immunity.


      As to whether a violation of this right occurred, the majority suggests that

there was no violation because “[they] think Defendants had actual probable cause

to arrest Plaintiff for violating Georgia’s mask statute.”       In support of this

observation, they note that Gates’s conduct fell within a purely textualist reading of

the statute and did not qualify for any of the listed exceptions, making arrest under

the statute reasonable.    That conclusion is untenable.       First, it ignores the

majority’s own acknowledgement that “the Georgia mask statute must be read in

light of the limitations placed on it by the Georgia Supreme Court in State v.

Miller, 260 Ga. 669 (1990) and Daniels v. State, 264 Ga. 460 (1994).” But, more

importantly, it renders the binding decision by the Miller court a nullity, ignoring

the limiting construction that saved the statute from constitutional infirmity and




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permitting reliance on the already-rejected, plain-text reading to satisfy probable

cause. 3


          Still, in order to prevail on his federal claims, Gates must also demonstrate

that the officers lacked arguable probable cause for his arrest. The complaint

clearly acknowledges that the mask Gates wore concealed his identity. As such,

the question of arguable probable cause turns on whether, taking the facts alleged

in the light most favorable to Gates, “reasonable officers in the same circumstances

and possessing the same knowledge . . . could have believed” that Gates “intended

to threaten, intimidate, or provoke the apprehension of violence” as opposed to

simply being engaged in “non-threatening political mask-wearing.” See Lee v.

Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (emphasis added); Daniels, 264 Ga.

at 460-61; Miller, 260 Ga. at 676.


          The majority offers two alternative bases for finding that the officers had

arguable probable cause to believe that Gates intended to intimidate or should have

known that his conduct would be intimidating. First, they state that “[l]ike some

other protesters, Plaintiff was wearing a mask that covered his entire face, and thus

3
    Plaintiff’s complaint points out that the arrest report makes no mention of a “threat” or intent to
    threaten. Instead, the report reinforces Plaintiff’s contention that he was arrested based solely
    on the fact that he was wearing a mask and failed to remove it. It states that Officer Khokhar
    “observed [Gates] wear a ‘V for Vendetta’ mask,” that Gates “was actively participating in a
    protest” and that “the protesters had been warned on loud speakers multiple times that anyone
    wearing a mask will be arrested.” It then states, “Mr. Gates still had his mask on. Mr. Gates
    was arrested for wearing a mask.”
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concealed his identity, during this night-time protest,” concluding that “[t]hat

conduct might be sufficient by itself to suggest an intent to intimidate.” 4 This

reading of the breadth of the Anti-Mask Act cannot be reconciled with the analysis

in Miller. In fact, because the protest was concededly peaceful, this approach

would prohibit the “non-threatening political mask-wearing” First-Amendment

conduct that Miller explicitly allows, simply because the political event took place

at night. Absent more, 5 this cannot form the basis for arguable probable cause.


         The majority goes on, however, to state that even if those circumstances

alone were insufficient, Gates’s failure to remove his mask when the police
4
    The Supreme Court has held arguably more “threatening” conduct to be “a far cry” from the
    “violence or threat of violence” that would bring such conduct outside of the protections of the
    First Amendment. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 233-35 (1963) (finding
    no threat of violence where a group of protesters assembled on State House grounds and
    refused to leave when told to do so by the police, instead engaging in “‘boisterous,’ ‘loud,’ and
    ‘flamboyant’ conduct, which, . . . later testimony made clear . . . consisted of listening to a
    ‘religious harangue’ by one of their leaders, and loudly singing ‘The Star Spangled Banner’
    and other patriotic and religious songs, while stamping their feet and clapping their hands”).
5
    The majority notes that the significance of the Guy Fawkes mask could “bolster” the Officers’
    reasonable inference that Gates intended to threaten or intimidate. They rely on an article
    attached to the complaint, which explains that Guy Fawkes was an “infamous insurgent who
    tried to blow up the British Parliament in 1605,” and that the mask bearing his face became
    popular based on “the graphic novel and film V for Vendetta, which centers on a vigilante’s
    efforts to destroy an authoritarian government in a dystopian future United Kingdom.” Apart
    from the fact that this inference turns the motion to dismiss standard on its head, the citation
    does not posit an equivalent predicate to the violent legacy of the Ku Klux Klan in Georgia
    described in Miller: “harassment, intimidation and violence against racial and religious
    minorities carried out by mask-wearing Klansmen and other ‘hate’ organizations” that
    “operated as vigilantes and were responsible for numerous beatings and lynchings.” Miller,
    260 Ga. at 672. Nor does the admittedly peaceful protest in which Gates was engaged bear any
    resemblance to the Klan’s vast legacy of domestic terror, which the Miller court discussed at
    length in their opinion and found to be clearly articulated by the Klan mask, whether worn by
    one or by many, in daytime or at night.

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ordered the protesters to do so “changed [the calculus] dramatically,” and led to a

reasonable inference that such a refusal was “a gesture intended to intimidate.”

Again, the discussion of Gates’s First Amendment right to anonymously protest in

a non-violent manner is conspicuously absent from the conclusory finding that

noncompliance with this order gave rise to arguable probable cause.


       There can be no doubt that the order to remove the masks was directed at

what would be constitutionally-protected expression, 6 unless it was brought outside

the ambit of the First Amendment through some exception—here, the threat of

violence or intimidation that was criminalized by the Anti-Mask Act.7                          As


6
  The Supreme Court has held that peaceful protests constitute “an exercise of . . . basic
  constitutional rights in their most pristine and classic form.” Edwards, 372 U.S. at 233; see
  also Brown, 383 U.S. at 141-42 (“[w]e are here dealing with an aspect of a basic constitutional
  right—the right under the First and Fourteenth Amendments guaranteeing freedom of speech
  and of assembly, and freedom to petition the Government for a redress of grievances. . . . As
  this Court has repeatedly stated, these rights are not confined to verbal expression” and
  “certainly include the right in a peaceable and orderly manner to protest by silent and
  reproachful presence”); Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1182 (11th Cir. 2009)
  (“Governments may not prevent protests, punish the exercise of the right to protest peacefully
  by arresting the demonstrators, nor unduly burden the right by forcing demonstrators to
  undergo excessive searches that violate the Fourth Amendment.”). The right to anonymously
  engage in protected speech, especially political speech, has been similarly upheld by the
  Supreme Court. See, e.g., Talley v. California, 362 U.S. 60, 64 (1960) (upholding the right to
  anonymously engage in protected speech and noting that “[p]ersecuted groups and sects from
  time to time throughout history have been able to criticize oppressive practices and laws either
  anonymously or not at all.”); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 (1995)
  (observing that although “[t]he specific holding in Talley related to advocacy of an economic
  boycott, [] the Court's reasoning embraced a respected tradition of anonymity in the advocacy
  of political causes.”). Indeed, the Miller court acknowledged this right in finding that engaging
  in non-threatening political mask-wearing was clearly protected conduct and not actionable
  under the Anti-Mask Act.
7
  Even apart from the Anti-Mask Act, nothing in the complaint or attached documents gives any
  indication that Gates’s conduct involved the type of “lewd and obscene, [] profane, [] libelous,
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discussed above, the record at this juncture does not demonstrate that such a threat

existed at the time the order was given, and so there was no legal basis for ordering

Gates to remove his mask. 8            To the contrary, the order itself constituted an

impermissible incursion on Gates’s right to free speech, and, as the Supreme Court

explained in Wright v. State of Ga., 373 U.S. 284, 292 (1963), “[o]bviously, . . .

one cannot be punished for failing to obey the command of an officer if that

command is itself violative of the Constitution.” See also Brown v. State of La.,

383 U.S. 131, 141 (1966). To say that arguable probable cause arose when the

police ordered Gates to remove his mask even if he was not violating the Anti-

Mask Act prior to the order being given, would render Fourth and First

Amendment protections meaningless: A Fourth Amendment claim cannot be

defeated because a citizen continues to engage in protected political speech in

contravention of an order she has no lawful obligation to obey. And her non-

criminalized, peaceful self-expression cannot be characterized as “threatening” and

stripped of constitutional protection simply because a police officer orders her to

stop.




    and [] insulting or ‘fighting’ words” that would otherwise militate against invocation of the
    First Amendment. Chaplinsky v. State of N.H., 315 U.S. 568, 572 (1942).
8
     Plaintiff’s complaint expressly alleges that the order to remove the masks was
    “unconstitutional” and “unlawful” because it was given “without regard to [the protesters’]
    constitutional right[] to wear [the] masks.”
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      In sum, nothing in the complaint or attached documentation supports a

finding that a reasonable officer could have believed that Gates’s conduct

evidenced an intent to threaten or intimidate, as required under the Anti-Mask Act.

The complaint alleges that Gates was wearing a mask “to express himself” during a

“peaceful protest” in downtown Atlanta, and that he was improperly arrested after

the police gave an “unconstitutional . . . order” to remove his mask and he did not

do so. The arrest report attached to the complaint similarly states that “Mr. Gates

was arrested for wearing a mask” while participating in a protest, with no mention

of threats or intimidation. Based on these allegations, it is clear that Gates’s

behavior is a far cry from the “terrorization by masked vigilantes” that the Anti-

Mask Act was designed to prevent. Miller, 260 Ga. at 672. Instead, the record

describes the type of “non-threatening political speech” that has unambiguously

qualified as protected expression since the Miller decision in 1990. For that

reason, I respectfully dissent.




                                           36
