Deshawn Gervin v. Pamela Florence

USCA11 Case: 23-11452      Document: 50-1          Date Filed: 06/09/2025   Page: 1 of 55




                                                                    [PUBLISH]
                                          In the
                 United States Court of Appeals
                           For the Eleventh Circuit

                             ____________________

                                      No. 23-11452
                             ____________________

        DESHAWN GERVIN,
                                                             Plaintiff-Appellee,
        versus
        PAMELA FLORENCE,
        TANDRIA MILTON,
        In their individual capacities,


                                                        Defendants-Appellants,


        HOKE HAMPTON,
        In her individual capacity,


                                                                    Defendant.
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        2                      Opinion of the Court                23-11452

                             ____________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                      D.C. Docket No. 1:21-cv-00067-LAG
                            ____________________

        Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges.
        ROSENBAUM, Circuit Judge:
                DeShawn Gervin has not been a model citizen. But he did
        do at least one thing right. As Gervin’s sole condition of probation,
        a Georgia court kicked him out of its jurisdiction and banned him
        from returning. And Gervin followed that instruction. He moved
        to North Carolina.
               But he didn’t stay out of trouble there, either. North Caro-
        lina imprisoned Gervin for breaking and entering, larceny, and rob-
        bery and kidnapping.
               Soon after, a probation officer with the Georgia Department
        of Community Supervision learned of Gervin’s North Carolina
        transgressions. And she sought a warrant for his arrest in Georgia.
        In support, she swore that Gervin had “failed to report” and “ab-
        sconded from probation supervision” in violation of his probation
        conditions. Another probation officer under her supervision then
        petitioned to revoke Gervin’s probation based on his failure to re-
        port.
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        23-11452               Opinion of the Court                         3

                After the probation officer obtained the warrant, police of-
        ficers in North Carolina arrested Gervin on the Georgia warrant.
        Then they extradited Gervin to Georgia. And Gervin spent 104
        days in jail waiting for the court to resolve his probation-revocation
        charges.
               But as we’ve recounted, the Georgia court’s only probation
        condition for Gervin required him never to reenter its judicial cir-
        cuit. And that’s the one thing he had not done. So however else
        Gervin had broken the law, he had not violated his Georgia proba-
        tion.
                For that reason, the Georgia court concluded that the State
        failed to show that Gervin had violated his probation. So it ordered
        Gervin’s release.
               After his release, Gervin sued the two probation officers un-
        der 

. He alleged violations of his Fourth, Eighth,
        and Fourteenth Amendment rights. The probation officers moved
        for summary judgment, and the district court denied their motion.
               We now affirm the district court’s ruling. When we view
        the evidence in the light most favorable to Gervin as the non-mov-
        ing party, the probation officers recklessly swore that Gervin had
        violated his Georgia probation, even though it was clear that he
        had not. That violated Gervin’s Fourth and Fourteenth Amend-
        ment right to be free from unreasonable seizures because the offic-
        ers’ misconduct caused his arrest and prolonged confinement. And
        because every reasonable state official would have understood that
        the Fourth and Fourteenth Amendments prohibit recklessly
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        4                         Opinion of the Court                       23-11452

        making false statements and material omissions to obtain an arrest
        warrant and prosecute a probation violation, the probation officers
        are not entitled to qualified immunity.
                                   I.      BACKGROUND
                                    A. Factual Background
               In January 2012, Plaintiff-Appellee DeShawn Gervin pled
        guilty to attempted burglary in violation of Georgia law. The
        Georgia state court sentenced him to one year of incarceration and
        nine years of probation.
               As especially relevant here, the court imposed only one con-
        dition of probation: Gervin could not return to the South Georgia
        Judicial Circuit, which includes Mitchell, Baker, Calhoun, Decatur,
        and Grady Counties. The court did not add any “general” condi-
        tions of probation. So for instance, it did not require Gervin to
        report to a probation officer or to inform a probation officer of a
        change in residence. Indeed, the court did not check the boxes next
        to those requirements on Gervin’s sentencing form.1
               Within a month of Gervin’s guilty plea, the jail released
        Gervin. A sheriff’s deputy then escorted him (in restraints) to a bus
        station. At the sheriff’s direction, the deputy watched Gervin board



        1 See Jones v. State, 

 (2007) (concluding no condition of proba-

        tion imposed where “[a]lthough the pre-printed sentencing form provided a
        list of general and special conditions of probation . . . , the box next to the
        [relevant] condition was not checked”).
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        23-11452               Opinion of the Court                        5

        a bus bound for Missouri and waited until it pulled away with
        Gervin onboard. After that, Gervin moved to North Carolina.
               Defendant-Appellant Pamela Florence, a probation officer
        with the Georgia Department of Community Supervision, was as-
        signed to supervise Gervin during his probation. In April 2012, she
        learned that Gervin had been released from a Georgia jail and was
        incarcerated in North Carolina for breaking and entering and lar-
        ceny. Florence applied for a warrant for Gervin’s arrest. In support,
        she said that Gervin had “failed to report” and “absconded from
        probation supervision.” She also said “his whereabouts [were] un-
        known.” But those statements, as we’ve noted, were false.
               Later, when describing her actions before seeking the war-
        rant, Florence testified that she was “sure [she] looked at [Gervin’s]
        sentence.” In fact, department policy required her to do so before
        seeking an arrest warrant. Florence also acknowledged knowing
        that the sentencing judge made a practice of reading probation
        conditions from the bench. Yet Florence did not obtain or attempt
        to obtain the sentencing-hearing transcript, though she had re-
        quested sentencing transcripts in the past for other people.
               A Mitchell County Superior Court judge granted the war-
        rant application.
               Then on April 26, 2019, after Gervin served a jail sentence
        for robbery and kidnapping, North Carolina police arrested him
        during a traffic stop and extradited him to Georgia. Defendant-
        Appellant Tandria Milton, a probation officer under Florence’s su-
        pervision, petitioned to revoke Gervin’s probation based on his
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        6                       Opinion of the Court                   23-11452

        failure to report. Milton also testified that she reviewed Gervin’s
        sentence before seeking to revoke Gervin’s probation.
               The Superior Court held Gervin’s revocation hearing on Au-
        gust 7, 2019. In the meantime, Gervin spent 104 days in a Georgia
        jail waiting for that hearing.
              At the hearing, Milton testified. She noted that Gervin had
        neither reported to his probation officer since January 2012 nor in-
        formed his probation officer of his change in residence. On cross-
        examination, Gervin’s counsel asked Milton to examine Gervin’s
        sentence disposition. When Milton did so, she conceded that
        Gervin’s probation included only one condition: to not return to
        the South Georgia Judicial Circuit during its term.
               The state court did not revoke Gervin’s probation. It con-
        cluded that the State had failed to meet its burden to show that
        Gervin violated his probation terms. So the jail released Gervin
        that day. His probation term ended in January 2021.
                                  B. Procedural History
              Gervin sued Florence and Milton2 under 

.
        He alleged violations of his Fourth, Eighth, and Fourteenth
        Amendment substantive-due-process rights. As relief for his


        2 Gervin’s complaint also named Hoke Hampton, who tolled Gervin’s proba-

        tion pending the revocation hearing. Defendants argued that Hampton
        caused no harm because Gervin’s probation was reinstated and completed on
        time. Gervin agreed, so the district court granted summary judgment for
        Hampton. Hampton is not a party to this appeal.
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        23-11452                Opinion of the Court                          7

        alleged “loss of liberty, humiliation, emotional distress, and physi-
        cal pain and suffering,” Gervin sought nominal, compensatory, spe-
        cial, and punitive damages.
               Defendants moved for summary judgment.
               The district court granted that motion in part (on the Eighth
        and Fourteenth Amendment substantive-due-process claims) and
        denied it in part (on the Fourth Amendment claim). In doing so, it
        characterized Gervin’s Fourth Amendment claim as a malicious-
        prosecution claim. The district court acknowledged that we have
        said a revocation of probation is not a “prosecution” in other con-
        texts. Still, on the facts here, the court reasoned, “the fundamental
        protections afforded by the Fourth Amendment against unlawful
        search and seizure appear to be implicated.” And the court con-
        cluded a reasonable jury could find that Florence and Milton “in-
        tentionally or recklessly made or submitted material misstate-
        ments” “to advance the legal process.”
                          II.    STANDARDS OF REVIEW
                We review a grant of summary judgment de novo, constru-
        ing all evidence in the light most favorable to the non-moving party.
        Rodriguez v. City of Doral, 

 (11th Cir. 2017). For
        summary-judgment motions based on qualified immunity, “we are
        required to resolve all issues of material fact in favor of the plain-
        tiff.” Lee v. Ferraro, 

 (11th Cir. 2002).
              Summary judgment is appropriate when no genuine issue
        of material fact exists and the moving party is entitled to judgment
        as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477
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        8                          Opinion of the Court                       23-

, 322–23 (1986). An issue is genuine if a reasonable trier of
        fact could return judgment for the non-moving party. Anderson v.
        Liberty Lobby, Inc., 

 (1986). And a fact is material if
        it “might affect the outcome of the suit under the governing law”
        and is not “irrelevant or unnecessary.” 

                                     III.    DISCUSSION
                On appeal, Defendants argue the district court erred in deny-
        ing summary judgment for two reasons. First, they assert that the
        district court should have granted summary judgment on the mer-
        its because a proceeding to revoke probation is not a “criminal pros-
        ecution” within the scope of the tort of malicious prosecution.
        And second, even if Gervin prevails on the merits, they contend
        that they are entitled to qualified immunity because any constitu-
        tional violation they may have committed was not clearly estab-
        lished at the time they engaged in their acts. We reject both argu-
        ments and address each in turn.3
                A. Gervin adduced enough evidence to create a triable issue of
                   fact on a Fourth Amendment malicious-prosecution claim.
              We divide our discussion of this point into two parts. First,
        we outline the relevant constitutional and statutory principles that


        3 In this interlocutory appeal from a partial denial of Defendants’ motion for

        summary judgment, we resolve only the issues that Defendants raised in their
        motion in the district court and repeat on appeal. We do not address other
        possible arguments or defenses the parties could have presented. See United
        States v. Sineneng-Smith, 

, 375 (2020) (“In our adversarial system of
        adjudication, we follow the principle of party presentation.”).
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        23-11452                Opinion of the Court                            9

        govern Gervin’s claim, and we apply them to the facts of his case.
        Based on our review, we conclude that Gervin has submitted
        enough evidence to proceed to trial on his Fourth Amendment ma-
        licious-prosecution claim. Then, we address Defendants’ primary
        argument on appeal: that the tort of malicious prosecution pro-
        vides redress for abuse of criminal prosecutions only, not for abuses
        of probation-revocation proceedings. We reject that argument as
        inconsistent with the Fourth Amendment and the common law.
                   1. Gervin can establish a Fourth Amendment malicious-
                      prosecution claim.
                The Fourth Amendment “secure[s]” the “people . . . against
        unreasonable searches and seizures,” and it guarantees that “no
        Warrants shall issue, but upon probable cause.” U.S. CONST.
        amend. IV. Originally, our Constitution did not enable the federal
        courts to secure that right against state deprivation. Barron v. City
        of Baltimore, 

, 250–51 (1833). But after Americans ratified
        the Fourteenth Amendment, which incorporates our Bill of Rights
        against the states and their officials, Congress enacted what is cur-
        rently codified at Title 

. That
        Section provides, “[e]very person who, under color of ” state law,
        “subjects . . . any . . . person . . . to the deprivation of any rights,
        privileges, or immunities, secured by the Constitution and laws,
        shall be liable to the party injured . . . for redress.” 

.
                 Section 1983 is an “independent cause of action designed” to
        “allow for private enforcement” of federal rights “in courts.” DeVil-
        lier v. Texas, 

 (2024). So plaintiffs may use it to sue
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        10                      Opinion of the Court                   23-11452

        state officials who unreasonably seize them in violation of the
        Fourth Amendment. Although the text of Section 1983 makes that
        much clear, neither it nor the Fourth Amendment itself specifically
        prescribes the full scope of an unreasonable-seizure claim. See Ma-
        nuel v. City of Joliet, 

, 370 (2017) (“After pinpointing that
        right, courts still must determine the elements of, and rules associ-
        ated with, an action seeking damages for its violation.”); cf. Craw-
        ford v. Washington, 

 (2004) (“The Constitution’s text
        does not alone resolve this case.”).
                To fill that textual gap, we turn to “the common law of
        torts.” Carey v. Piphus, 

 (1978). “[O]ver the centu-
        ries,” that body of law “has developed a set of rules to implement
        the principle that a person should be compensated fairly for injuries
        caused by the violation of his legal rights.” 

               Section 1983, like most statutes built on a common-law
        background, brings the “old soil with it.” Hall v. Hall, 

,
        73 (2018) (quoting Felix Frankfurter, Some Reflections on the Reading
        of Statutes, 47 COLUM. L. REV. 527, 537 (1947)). The Supreme Court
        recently reminded us of this yet again in Thompson v. Clark. 

 (2022). There, it explained that “[t]o determine the elements of
        a constitutional claim under § 1983,” we “first look to the elements
        of the most analogous tort as of 1871 when § 1983 was enacted, so
        long as doing so is consistent with ‘the values and purposes of the
        constitutional right at issue.’” Id. at 43 (quoting Manuel, 580 U.S. at
        370).
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        23-11452               Opinion of the Court                        11

               Here, the most analogous tort for Gervin’s claims is “mali-
        cious prosecution,” which we sometimes call “a claim for unrea-
        sonable seizure pursuant to legal process.” Id. at 42; see Williams v.
        Aguirre, 

, 1157 (11th Cir. 2020) (explaining malicious
        prosecution is a “shorthand way of describing” certain Fourth
        Amendment claims, such as seizure pursuant to legal process).
                The Supreme Court has explained that “[i]n American
        courts as of 1871, the malicious prosecution tort generally allowed
        recovery against an individual who had initiated or caused the ini-
        tiation of criminal proceedings despite having ‘no good reason to
        believe’ that criminal charges were ‘justified by the facts and the
        law.’” Thompson, 596 U.S. at 43 (quoting THOMAS M. COOLEY, A
        TREATISE ON THE LAW OF TORTS OR THE WRONGS WHICH ARISE IN-
        DEPENDENT OF CONTRACT 180 (Chi., Callaghan & Co. 1879)). Dur-
        ing that period, a plaintiff could state a claim for malicious prose-
        cution by showing three elements: “(i) the suit or proceeding was
        ‘instituted without any probable cause’; (ii) the ‘motive in institut-
        ing’ the suit ‘was malicious,’ which was often defined in this context
        as without probable cause and for a purpose other than bringing
        the defendant to justice; and (iii) the prosecution ‘terminated in the
        acquittal or discharge of the accused.’” Id. at 44 (quoting COOLEY,
        supra, at 181).
             Our precedent incorporates these three elements into a
        modern claim for violation of the Fourth Amendment’s guarantee
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        12                        Opinion of the Court                      23-11452

        of security against unreasonable seizures.4 But because Section
        1983 incorporates the element of common-law torts only “so long
        as doing so is consistent with ‘the values and purposes of the con-
        stitutional right at issue,’” id. at 43 (quoting Manuel, 580 U.S. at
        370)—here, a Fourth Amendment violation—we combine the
        Fourth Amendment’s constitutional elements with those of a tra-
        ditional malicious-prosecution tort, see Butler v. Smith, 

,
        1111 (11th Cir. 2023) (explaining that because “the claim is a
        mashup of sorts,” plaintiffs must meet both the Fourth Amend-
        ment’s requirements and those of the common-law tort of mali-
        cious prosecution). So a plaintiff must also prove that he was seized
        “pursuant to the legal process,” Heck v. Humphrey, 

        (1994), “that the legal process justifying his seizure was constitu-
        tionally infirm,” and “that his seizure would not otherwise be jus-
        tified without legal process,” Williams, 965 F.3d at 1165.
              In practice, though, a malicious-prosecution claim’s com-
        mon-law elements meld with the Fourth Amendment’s textual


        4 We’ve at times said that a plaintiff must also show that the malicious prose-

        cution “caused damage.” Paez v. Mulvey, 

 (11th Cir. 2019)
        (quoting Wood v. Kesler, 

 (11th Cir. 2003)). But we’ve also
        held that a plaintiff need not prove compensatory damages to state a claim for
        Fourth Amendment malicious prosecution because “a plaintiff may re-
        cover nominal damages even though he suffers no compensable injury.” Kelly
        v. Curtis, 

 (11th Cir. 1994); accord Laskar v. Hurd, 

, 1285 (11th Cir. 2020). So a plaintiff may still succeed in his Fourth
        Amendment malicious-prosecution suit without litigating the damages ele-
        ment as long as his complaint includes a prayer for nominal damages. Gervin’s
        does.
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        23-11452                  Opinion of the Court                               13

        components because a “significant overlap” exists between them.
        Luke v. Gulley (“Luke I”), 

, 1143 (11th Cir. 2020). For
        instance, “[i]f a plaintiff establishes that a defendant violated his
        Fourth Amendment right to be free from seizures pursuant to legal
        process, he has also established that the defendant instituted crimi-
        nal process against him with malice and without probable cause.”
        

. So the questions whether a defendant instituted or con-
        tinued a legal proceeding with malice and without probable cause
        “effectively merge[]” with our case law on unconstitutional sei-
        zures. Butler, 85 F.4th at 1112.
               When we account for the overlap in elements between the
        Fourth Amendment and the common-law tort of malicious prose-
        cution, to prove a Fourth Amendment malicious-prosecution claim
        in our Circuit, a plaintiff must establish four elements: (1) the plain-
        tiff was seized under legal process; (2) the legal process justifying
        the plaintiff’s seizure was constitutionally infirm; (3) the suit or pro-
        ceeding terminated in the plaintiff’s favor; and (4) the seizure would
        not otherwise be justified without legal process. See id. at 1111–12
        (outlining the relevant elements and how they merge); Washington
        v. Howard, 

, 898 (11th Cir. 2022) (identifying a simplified
        two-step test that breaks down into these elements). 5


        5 In Butler, we initially listed six elements to a Fourth Amendment malicious-

        prosecution claim—adding qualified immunity’s requirements as a seventh—
        and explained, like we do above, how some of those elements merge together.
        85 F.4th at 1111–12. Today’s recitation of the claim’s elements differs in three
        ways. First, we merge the overlapping elements. Second, we leave the dis-
        cussion of qualified immunity for later. And third, we make explicit Butler’s
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        14                      Opinion of the Court                    23-11452

               Applying these elements to Defendants’ conduct, construed
        in the light most favorable to Gervin, is easy enough.
               First, Florence seized Gervin under legal process “by seeking
        and obtaining the warrants” that led to Gervin’s arrest. Butler, 85
        F.4th at 1112. And Milton took “affirmative act[s] to continue
        [Gervin’s] seizure,” Howard, 25 F.4th at 912, by filing the probation-
        revocation petition and by offering “later testimony” at the proba-
        tion-revocation hearing, id. at 904. Both acts “continue[d]
        [Gervin’s] detention.” Id. So Florence and Milton effectuated the
        legal process that resulted in Gervin’s 104-day stint in jail.
                Second, the legal process justifying Gervin’s seizure was con-
        stitutionally infirm. A plaintiff may prove that element by, among
        other means, showing (a) that the defendant “intentionally or reck-
        lessly made misstatements or omissions necessary to” support the
        legal process that resulted in or continued the plaintiff’s seizure,
        Williams, 965 F.3d at 1165; see Paez v. Mulvey, 

 (11th Cir. 2019) (warrant application); Howard, 25 F.4th
        at 907 (testimony), and (b) that those misstatements or omissions
        were material, meaning “probable cause would be negated if the
        offending statement[s] w[ere] removed or the omitted information
        included,” Paez, 

.




        implicit understanding that a “seizure” within the meaning of the Fourth
        Amendment has occurred. See id. at 1112 (explaining the prosecution caused
        Butler “damage by landing her in jail for four days”).
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        23-11452              Opinion of the Court                       15

                Defendants don’t dispute that Gervin established this ele-
        ment. Nor could they. Florence’s statements in the warrant affida-
        vit were false. And so were Milton’s statements in the revocation
        petition. Both claimed that Gervin’s conditions of probation re-
        quired him to report to his probation officer and to receive permis-
        sion from his probation officer to move residences. But in fact,
        Gervin’s terms of probation imposed no such conditions. And Mil-
        ton’s testimony at the revocation hearing omitted that material
        fact: she testified that Gervin failed to report to his probation of-
        ficer and that he moved without his probation officer’s permission.
        But she did not explain that Gervin’s terms of probation did not
        require him to do so.
               Plus, Defendants made those misstatements and omissions
        recklessly. Florence and Milton both testified that they reviewed
        Gervin’s sentence before applying for and testifying in support of
        the arrest warrant. So both should have seen that the boxes next
        to conditions #4 and #6 were unchecked and that Gervin was not
        required to report to a probation officer. Also, Florence testified
        that she knew the sentencing judge had a practice of reading pro-
        bation conditions from the bench and that she had previously ob-
        tained sentencing transcripts to check probation conditions for
        other probationers. Yet she did not obtain or attempt to obtain the
        sentencing hearing transcript in Gervin’s case.
               In other words, Florence and Milton “possessed information
        giving rise to an exculpatory inference” but did nothing to examine
        the “easily discoverable facts that would confirm or contradict that
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        16                      Opinion of the Court                   23-11452

        inference.” Washington v. Rivera, 

, 1248 (11th Cir. 2019)
        (footnote and internal quotation marks omitted); see Sevigny v. Dick-
        sey, 

, 957–58 (4th Cir. 1988) (finding a Fourth Amend-
        ment violation where an officer “did not avail himself of readily
        available information” or undertake “rudimentary inquiries” that
        would have revealed the arrest to be “factually unsupportable”). So
        Defendants’ misstatements and omissions were reckless.
                And without those misstatements (and adding in the omis-
        sions), nothing in the warrant affidavit, the probation-revocation
        petition, or Milton’s testimony establishes probable cause. See Wil-
        liams, 965 F.3d at 1165. The sole condition of Gervin’s probation
        was banishment. But no evidence in the relevant records shows he
        failed to comply with that condition. See id. at 1162 (explaining in-
        sufficient affidavits or testimony “cannot be rehabilitated” with “in-
        formation . . . not disclosed to the issuing magistrate”); accord Luke
        v. Gulley (“Luke II”), 

, 96 (11th Cir. 2022). To the contrary,
        Gervin was living in North Carolina, well outside the South Geor-
        gia Judicial Circuit, at the time of the arrest and probation revoca-
        tion. So no probable cause existed for his arrest and prolonged sei-
        zure in Georgia. And as a result, Gervin has showed that that his
        seizure was constitutionally infirm.
               Third, the probation-revocation proceeding terminated in
        Gervin’s favor. To satisfy the favorable-termination requirement, a
        plaintiff must show only that the “proceedings against” him “for-
        mally end[ed] in a manner not inconsistent with his innocence on
        at least one charge that authorized his confinement.” Laskar, 972
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        23-11452               Opinion of the Court                      17

        F.3d at 1295; see Thompson, 596 U.S. at 49 (holding that a plaintiff
        obtains a favorable resolution of a criminal prosecution when it
        ends “without a conviction”). Here, Gervin established that the
        state court released him without revoking his probation. So the
        court dismissed the probation-revocation proceedings against
        Gervin “in a manner not inconsistent with his innocence.” Laskar,
        972 F.3d at 1295.
               And fourth, Gervin’s seizure was otherwise unjustified. Be-
        cause Gervin “was detained for longer than 48 hours, [his] seizure
        would have been ‘presumptively unconstitutional’—and thus not
        otherwise justified—if effectuated without legal process.” Butler,
        85 F.4th at 1112 (quoting Williams, 965 F.3d at 1164).
               In short, when we construe the facts in Gervin’s favor, as we
        must do on review of an order denying summary judgment for a
        qualified-immunity defense, we conclude that Gervin submitted
        enough evidence to support his Fourth Amendment malicious-
        prosecution claim. And the district court did not err in denying
        Defendants’ motion for summary judgment on the merits of that
        claim.
                   2. Neither the Fourth Amendment nor the common law
                      supports Defendants’ argument that unjustified de-
                      tentions under probation-revocation proceedings fall
                      outside the scope of a Fourth Amendment malicious-
                      prosecution claim.
              Florence and Milton seek to avoid the conclusion that
        Gervin has produced enough evidence to establish a Fourth
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        18                      Opinion of the Court                   23-11452

        Amendment malicious-prosecution claim. They argue that a pro-
        bation revocation is not a “criminal prosecution” within the scope
        of the malicious-prosecution tort.
                Our past opinions perhaps provide some nominal support
        for this position. See Wood v. Kesler, 

 (11th Cir. 2003)
        (listing the first element of the common-law tort of malicious pros-
        ecution as “a criminal prosecution instituted or continued by the
        present defendant” (citing Uboh v. Reno, 

, 1004 (11th
        Cir. 1998))); Paez, 

 (same); Williams, 965 F.3d at 1157
        (same); Butler, 85 F.4th at 1111 (same).
               But for two reasons we explain below, we reject Defendants’
        argument. First, the Fourth Amendment imposes no such limita-
        tion on its guarantee of security against unreasonable seizures.
        And second, at common law, the tort of malicious prosecution
        would have encompassed the initiation or continuation of a proba-
        tion-revocation proceeding, even though it is not a criminal pro-
        ceeding.
                      i. The Fourth Amendment does not limit unreasonable-
                         seizure claims to legal process initiated in criminal
                         prosecutions.
               We start, first, with the text. But for context, before we re-
        view the Fourth Amendment, we consider how the Founders
        drafted other guarantees in the Bill of Rights.
              Take the Fifth Amendment’s protection against compelled
        testimony. By its text, it covers only “criminal case[s].” U.S. CONST.
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        23-11452                   Opinion of the Court                                19

        amend. V. 6 And the Sixth Amendment liberties—like the right to a
        speedy and public trial, to the assistance of counsel, and to con-
        front witnesses—extend to only “criminal prosecutions.” Id.
        amend. VI.7
                But the Fourth Amendment is different. Unlike the Fifth and
        Sixth Amendments, it includes no explicit temporal limitations.
        Rather, the Fourth Amendment’s protections apply whenever a
        government official seizes someone unreasonably. And they re-
        main in place through that person’s trial on the cause invoked to
        justify their seizure. See Manuel, 580 U.S. at 369 n.8 (rejecting that
        a claim for unreasonable seizure pursuant to legal process ends
        with a grand-jury indictment and explaining that it instead ends
        with the conclusion of the trial). Indeed, the Supreme Court has
        explained, “[i]f the complaint is that a form of legal process re-
        sulted in pretrial detention unsupported by probable cause, then
        the right allegedly infringed lies in the Fourth Amendment.” Id. at
        367. So here, where the cause Defendants invoked to justify
        Gervin’s seizure is a probation revocation, the Fourth Amendment


        6 “[N]or shall [any person] be compelled in any criminal case to be a witness

        against himself . . . .” U.S. CONST. amend. V (emphasis added).
        7 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

        public trial, by an impartial jury of the State and district wherein the crime
        shall have been committed, which district shall have been previously ascer-
        tained by law, and to be informed of the nature and cause of the accusation;
        to be confronted with the witnesses against him; to have compulsory process
        for obtaining witnesses in his favor, and to have the Assistance of Counsel for
        his defence.” U.S. CONST. amend. VI (emphasis added).
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        20                          Opinion of the Court                        23-11452

        secures Gervin against any baseless, preliminary detention that re-
        sulted from such legal process.
               It makes no difference that the probation-revocation pro-
        ceedings came after the criminal trial that led to Gervin’s convic-
        tion. The Fourth Amendment applies “[w]hatever” the “precise
        form” of the “proceeding” used to justify a seizure. Id. at 369 n.8.
        As a result, not only does the Fourth Amendment govern pretrial
        detentions, but it also protects probationers held in prehearing de-
        tention.8 We’ve explained, after all, that “[t]here is no question that
        the Fourth Amendment’s protection against unreasonable searches
        and seizures applies to probationers.” Owens v. Kelley, 

 (11th Cir. 1982); see Griffin v. Wisconsin, 

 (1987)
        (explaining the Fourth Amendment’s protection against


        8 In contrast, we have held that several Fifth and Sixth Amendment guarantees

        do not extend to probation-revocation proceedings. See, e.g., United States v.
        Reese, 

 (11th Cir. 2015) (per curiam) (“[T]he Sixth Amend-
        ment [right to confrontation] does not apply in hearings for the revocation of
        supervised release, probation, or parole.”); United States v. Cunningham, 

, 1267–68 (11th Cir. 2010) (per curiam) (holding the use of the pre-
        ponderance-of-the-evidence standard and the lack of a jury-trial right in revo-
        cation proceedings did not violate the Fifth and Sixth Amendments); United
        States v. Woods, 

 (11th Cir. 1997) (per curiam) (“[R]evocation
        of probation for commission of a subsequent criminal offense does not consti-
        tute punishment for that criminal offense for purposes of double jeop-
        ardy . . . .”); United States v. Taylor, 

 (11th Cir. 1991) (per cu-
        riam) (“[R]evocation hearings are not criminal prosecutions under the sixth
        amendment and thus, the defendant is not constitutionally guaranteed a
        speedy hearing.”); Morgan v. Wainwright, 

 (11th Cir. 1982)
        (holding no right to a jury at probation-revocation hearing).
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        23-11452                    Opinion of the Court                                 21

        unreasonable searches extends to a “probationer’s home, like any-
        one else’s”). 9 And a constitutionally unreasonable seizure—even a
        seizure of a probationer—forms the core of a Fourth Amendment
        malicious-prosecution claim.
               So both text and precedent confirm a Fourth Amendment
        malicious-prosecution claim does not require proof of a criminal
        prosecution. Or, at least, it does not require the narrow definition
        of “criminal prosecution” that Defendants hope to give that term.
        “Common-law principles are meant to guide rather than to control
        the definition of § 1983 claims . . . .” Manuel, 580 U.S. at 370. “We
        cannot elevate the common law over the Constitution.” Williams,
        965 F.3d at 1157. So we use the phrase “‘malicious prosecution’ as
        only ‘a shorthand way of describing’ certain claims of unlawful

        9 Defendants argue that the Supreme Court has held that the Fourth Amend-

        ment does not protect probationers as fully as it does law-abiding individuals.
        That is true. See, e.g., United States v. Knights, 

, 121–22 (2001) (hold-
        ing officers need only reasonable suspicion to conduct a warrantless search of
        a probationer’s home because probationers have a diminished expectation of
        privacy and are more likely than are law-abiding citizens to commit a crime in
        the future). But see Gagnon v. Scarpelli, 

 (1973) (requiring a
        “hearing at the time of [a parolee’s] arrest and detention to determine whether
        there is probable cause to believe that he has committed a violation of his pa-
        role”). But Defendants do not explain why that eliminates Gervin’s Fourth
        Amendment claim. Even if we assume that the fact of Gervin’s probation
        would lower the state’s burden-of-proof for obtaining an arrest warrant, De-
        fendants still violated Gervin’s allegedly tempered Fourth Amendment rights.
        They lacked even a reasonable suspicion that Gervin violated the conditions
        of his probation. See Jones v. Chandrasuwan, 

 (4th Cir. 2016)
        (“Appellees violated [the plaintiff’s] Fourth Amendment rights by seeking his
        arrest for alleged probation violations without reasonable suspicion.”).
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        22                        Opinion of the Court                       23-11452

        seizure under the Fourth Amendment.” 

 (quoting Whiting v.
        Traylor, 

 (11th Cir. 1996), abrogated on other grounds
        by Wallace v. Kato, 

, 389–90 (2007)). By focusing on the
        “prosecution” in “malicious prosecution,” Defendants take the la-
        bel too literally. But when it comes to the Fourth Amendment, a
        “[r]ose is a rose is a rose is a rose,” even if we’re talking about an
        alleged Fourth Amendment violation that a probationer’s mali-
        cious-prosecution claim pursues. Perez v. Wells Fargo N.A., 

, 1331 & n.2 (11th Cir. 2014) (quoting GERTRUDE STEIN, GEOG-
        RAPHY AND PLAYS 187 (The Four Seas Press 1922) (1913)).

                We’ve made this point several times before. In Whiting, one
        of our “oldest decisions on the subject,” Laskar, 972 F.3d at 1294, 10
        we explained that the constitutional seizure, not the prosecution,
        is the touchstone of a Fourth Amendment malicious-prosecution
        claim. We focused on the fact that Whiting “based his claim—
        whatever he calls it—on some actual unlawful, forcible, restraint of
        his person.” 

. And although we discussed Whiting’s
        claim in the context of the “criminal proceedings” that injured him,
        

 at 583–84, 585 n.8, we ultimately homed in on the touchstone
        our precedent now adopts: “seizures . . . pursuant to legal process,”
        

. See 

 at 585–86 (explaining an arrest pursuant to a war-
        rant constitutes a seizure “pursuant to legal process”); Kelly v. Curtis,


        10 For this reason, Uboh, Wood, and its progeny, which came after Whiting, do

        not bind us as prior-panel precedent. See United States v. Hogan, 

 (11th Cir. 1993) (explaining we’re bound by the “first panel to address an
        issue of law”).
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        23-11452               Opinion of the Court                       23

        

, 1554–55 (11th Cir. 1994) (finding a “malicious prose-
        cution” based on an arrest, in fact, followed by an unlawful warrant
        application and physical restraint); NAACP v. Hunt, 

,
        1563 (11th Cir. 1990) (borrowing Alabama common law to con-
        clude that, to prove a Section 1983 malicious-prosecution claim, the
        plaintiff must show the defendant initiated a “judicial proceeding”).
                And more recently, in Laskar v. Hurd, we confronted an ar-
        gument similar to Defendants’ when we assessed the interplay be-
        tween the Fourth Amendment and a malicious-prosecution claim’s
        favorable-termination requirement. There, the defendants argued
        that the common law required a plaintiff asserting a Fourth
        Amendment malicious-prosecution claim to show that the criminal
        proceeding against the plaintiff terminated with a finding of the
        plaintiff’s innocence on the charges pressed. Laskar, 972 F.3d at
        1285. We rejected that argument as an errant reading of the com-
        mon law and the Fourth Amendment. See id. at 1292.
               We emphasized that the validity of the plaintiff’s Fourth
        Amendment claim turned on “whether the seizure was justified,
        not whether the prosecution itself was justified.” Id. So, we rea-
        soned, adopting the innocence-finding requirement would inap-
        propriately “redirect[] the focus” of our analysis away from the sei-
        zure’s justification “to whether the entire prosecution was justi-
        fied.” Id. Indeed, we went so far as to conclude that because “‘the
        Fourth Amendment protects against “searches” and “seizures”
        (and not “prosecutions”),’ the favorable-termination requirement
        functions as a rule of accrual, not as a criterion for determining
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        24                     Opinion of the Court                  23-11452

        whether a constitutional violation occurred.” Id. (quoting Whiting,
        

). As a result, the favorable-termination element
        played only a “limited role” in our analysis of the plaintiff’s claims.
        Id. at 1293. And in turn, we rejected the stringent innocence-find-
        ing approach to the favorable-termination element that the defend-
        ants advanced. Id.
                Today’s reading of the Fourth Amendment is the next chap-
        ter of the same book. Because the Fourth Amendment protects
        against “searches” and “seizures” (and not “prosecutions”), Gervin
        can state a Fourth Amendment malicious-prosecution claim even
        if the legal process by which he was seized was not part of a formal,
        criminal prosecution. See Howard, 25 F.4th at 898 (focusing on “un-
        reasonable seizures pursuant to legal process”); id. at 911 (equating
        “a criminal prosecution” and “a civil action that resulted in an ar-
        rest”); cf. DeMartini v. Town of Gulf Stream, 

, 1309 (11th
        Cir. 2019) (describing elements of “wrongful civil proceedings
        claims” as “settled law” incorporated by Section 1983).
               Focusing on the form of the legal process would, like the
        innocence-finding requirement at issue in Laskar, inappropriately
        “redirect[] the focus” of our analysis from the relevant Fourth
        Amendment question: whether a “seizure” occurred. Laskar, 972
        F.3d at 1292. As the Supreme Court has put it, “[i]f the complaint
        is that a form of legal process resulted in pretrial detention unsup-
        ported by probable cause, then the right allegedly infringed lies in
        the Fourth Amendment.” Manuel, 580 U.S. at 367 (emphasis
        added).
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        23-11452                Opinion of the Court                         25

               To be sure, the tort’s common-law elements do not com-
        pletely drop out of our analysis. The fact that a defendant initiated
        a prosecution illustrates the type of Fourth Amendment claim a
        plaintiff brings and the relevant constitutional standards that apply
        to that claim. Our precedent has long separated malicious-prose-
        cution claims from false-arrest or imprisonment claims on the basis
        that malicious-prosecution seizures were made under legal process
        but false-arrest or imprisonment seizures were made without legal
        process. See Williams, 965 F.3d at 1157–58; Whiting, 85 F.3d at 585–
        86 & n.8. In other words, the initiation of a criminal prosecution
        plays only the “limited role,” Laskar, 972 F.3d at 1293, of identifying
        the relevant constitutional principles at issue, see Sylvester v. Fulton
        Cnty. Jail, 

, 1330–31 (11th Cir. 2024) (discussing the dif-
        ferences between Fourth Amendment malicious-prosecution
        claims and Fourth Amendment false-arrest claims).
               So that common-law element does not bar relief if a plaintiff
        otherwise states a Fourth Amendment violation under the applica-
        ble constitutional principles. See Luke I, 975 F.3d at 1144 (simplify-
        ing “our standard for malicious prosecution” to require proof “that
        the defendant violated his Fourth Amendment right to be free
        from seizures pursuant to legal process,” not proof that the defend-
        ant initiated a formal, criminal prosecution). After all, the Consti-
        tution, not the common law, controls the scope of an action under
        Section 1983.
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        26                     Opinion of the Court                    23-11452

                     ii. The common law did not limit malicious-prosecution
                         actions to only those seeking redress for baseless crimi-
                         nal prosecutions.
               But even if the common law did control the scope of a claim
        under Section 1983 and the Fourth Amendment, Defendants still
        would not prevail. A plaintiff in Gervin’s shoes could state a com-
        mon-law claim of malicious prosecution because the tort provided
        redress for a diverse set of maliciously instituted suits and proceed-
        ings that resulted in a person’s erroneous confinement.
               The elements of malicious prosecution that the Court re-
        counted in Thompson bear this out. A plaintiff could state a claim
        for malicious prosecution by showing that the defendant mali-
        ciously instituted or continued a “suit or proceeding.” 596 U.S. at
        44. “[S]uit or proceeding” is a pretty broad phrase. Indeed, at its
        most expansive, it includes any “steps or measures in the prosecu-
        tion of an action.” Proceeding, 2 NOAH WEBSTER, AMERICAN DIC-
        TIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828).

               The breadth of that phrase comports with the injury the ma-
        licious-prosecution tort was supposed to remedy. It sought to stop
        “groundless proceedings” that could “affect[] materially one’s
        standing and credit,” COOLEY, supra, at 180, and that could cause
        “injury to the person, as connected with false imprisonment, and
        also to property, on account of the necessary cost and expense of
        defending against unfounded demands or accusations,” 1 FRANCIS
        HILLARD, THE LAW OF TORTS OR PRIVATE WRONGS 475 (Boston, Lit-
        tle, Brown & Co. 2d ed. 1866); see also id. at 489 (explaining “the
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        23-11452                Opinion of the Court                         27

        plaintiff must allege and prove that he has been prosecuted by the
        defendant, either criminally or in a civil suit” (emphasis omitted)).
                Many forms of suits and proceeding implicate these types of
        injuries. Even some civil actions may lead to confinement, see How-
        ard, 25 F.4th at 911, and a person incurs costs in any type of litiga-
        tion, see Harlow v. Fitzgerald, 

 (1982) (recognizing
        the litigation costs associated with civil suits); cf. Touchcom, Inc. v.
        Bereskin & Parr, 

 (Fed. Cir. 2009) (discussing bur-
        dens of practicing before the USPTO). So it’s unsurprising that
        courts understood the tort of malicious prosecution to offer re-
        dress for damage that non-criminal legal process inflicts. To be
        sure, around the time Congress enacted Section 1983, the authori-
        ties were “not entirely agreed [on] what cases [were] embraced
        within” the tort of malicious prosecution. COOLEY, supra, at 187–
        89. But one thing that was beyond question was that the tort could
        redress a wide array of baseless legal proceedings, civil and criminal
        alike, that could injure a person or her property. See id. at 187–89
        (overviewing the scope of malicious-prosecution claims).
               English courts established that principle well before the Rev-
        olution. Chapman v. Pickersgill offers a helpful example. There, a
        plaintiff sought redress for the false and malicious commission of a
        bankruptcy suit against him. (1762) 95 Eng. Rep. 734, 734; 2 Wils.
        K.B. 146, 146 (opinion of Pratt, C.J.). The defendant objected to
        the action on the grounds that the bankruptcy “was a proceeding
        in nature of a civil suit” and that such a malicious-prosecution
        claim had never been brought before. Id.
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        28                      Opinion of the Court                   23-11452

                The court quickly rejected those arguments, adding that it
        “wish[ed] never to hear” them again. Id. Torts, the court ex-
        plained, “are infinitely various, not limited or confined, for there is
        nothing in nature but may be an instrument of mischief.” Id. And
        “suing out a commission of bankruptcy falsely and maliciously, is
        of the most injurious consequence in a trading country.” Id. In
        fact, the plaintiff alleged as much. He claimed he had been “greatly
        damaged,” “scandalized upon record, and put to great charges in
        obtaining a supersedeas to the commission.” Id. So in approving
        of the plaintiff’s action, the court made clear that “wherever there
        is an injury done to a man’s property by a false and malicious pros-
        ecution, it is most reasonable he should have an action to repair
        himself.” Id.
               This governing principle held throughout the early nine-
        teenth century. English courts continued to sustain malicious-pros-
        ecution claims for baseless bankruptcy proceedings, see, e.g., Whit-
        worth v. Hall (1831) 109 Eng. Rep. 1302, 1303; 2 B. & Ad. 695, 697–
        98 (opinion of Tenterden, C.J.); Farley v. Danks (1855) 119 E.R. 180,
        182; 4 El. & Bl. 493, 498–99; maliciously issued executions for sums
        larger than those actually due, see, e.g., Churchill v. Siers (1854) 118
        Eng. Rep. 1389, 1392–93; 3 El. & Bl. 929, 937–40; Jennings v. Florence
        (1857) 140 Eng. Rep. 500, 501; 2 C. B. (N. S.) 467, 470–71; false suits
        for attachment or seizure of a person’s property, see, e.g., Waterer v.
        Freeman (1619) 80 Eng. Rep. 412, 412–13; Hobart 266, 266–67; and
        abuse of the civil process causing one’s arrest, see, e.g., Grainger v
        Hill (1838) 132 Eng. Rep. 769, 772–73; 4 Bing. (N. C.) 212, 219–21
        (opinion of Tindal, C.J.); Heywood v Collinge (1838) 112 Eng. Rep.
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        23-11452                Opinion of the Court                         29

        1213, 1215–16; 9 Ad. & El. 268, 273–75. Lord Campbell aptly sum-
        marized the rule: “[t]o put into force the process of the law mali-
        ciously and without any reasonable or probable cause is wrongful.”
        Churchill, 118 Eng. Rep. at 1392; 3 El. & Bl. at 937.
               The law did not differ on our side of the pond. American
        courts readily adopted the general principles governing the tort of
        malicious prosecution that the English system refined in earlier
        centuries. See, e.g., White v. Dingley, 

 (1808) (holding
        “[n]o action, by the common law, lies for damages sustained by su-
        ing a civil action, when the plaintiff fails, unless it be alleged and
        shown to be malicious, and without probable cause”).
                Americans could sue for damage that various types of pro-
        ceedings caused: the malicious institution or continuation of bank-
        ruptcy proceedings, see, e.g., Stewart v. Sonneborn, 

        (1878); executions for sums larger than was due, see, e.g., Sommer v.
        Wilt, 

 (Pa. 1818); Savage v. Brewer, 

, 455–57 (1835); attachments, injunctions, or other re-
        strictions on a person’s use and enjoyment of property, see, e.g., Rog-
        ers v. Brewster, 

 (N.Y. Sup. Ct. 1809); Stone v. Swift,
        

 (1826); Cox v. Taylor’s Adm’r, 

 (1849); Spengler v. Davy, 

,
        395 (1859); Fullenwider v. McWilliams, 

        (1870); suits to declare individuals insane and place them under
        guardianship, see, e.g., Davenport v. Lynch, 

        (1859); Lockenour v. Sides, 

 (1877); cf. Johnson v. King
        & Davidson, 

 (1885); and other civil actions leading
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        30                       Opinion of the Court                    23-11452

        to a person’s arrest, see, e.g., Watkins v. Baird, 

 (1810);
        Ray v. Law, 

 (C.C.D. Pa. 1816) (No. 11,592)� (Wash-
        ington, Circuit Justice); Burhans v. Sanford, 

, 417–18
        (N.Y. Sup. Ct. 1838); Burnap v. Marsh, 

 (1852); Beach v.
        Wheeler, 

 (1858); Collins v. Hayte, 

 (1869).
                In fact, Antebellum and Reconstruction jurists rejected argu-
        ments—just like the one Defendants now make—that courts
        should read the word “prosecution” “in its most restricted sense”
        and limit the tort “only to criminal proceedings.” Burnap, 

; see 

 at 540–42 (concluding the tort permits redress for past
        civil suits in which the plaintiff was maliciously arrested); accord Lip-
        scomb v. Shofner, 

 (Tenn. 1896). Americans com-
        monly used the terms “prosecution” and “[m]alicious prosecution”
        broadly, referring to the “institution and carrying on of a suit in a
        court of law or equity, to obtain some right, or to redress and pun-
        ish some wrong.” Prosecution, WEBSTER, supra (emphasis in origi-
        nal); see also Prosecute, WEBSTER, supra (defining “prosecute” as “[t]o
        seek to obtain by legal process,” “[t]o accuse of some crime or
        breach of law, or to pursue for redress or punishment, before a legal
        tribunal”).
               And U.S. courts recognized, just as those in England did, that
        the “novelty” of a defendant’s previous legal “action” could offer
        “no objection” to a plaintiff’s malicious-prosecution claim because
        the relevant “injury consists in the oppression and the malice,” not
        the form of the previous action itself. Sommer, 

. It was the injury that the legal process caused, not the form of
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        23-11452                Opinion of the Court                         31

        that process, that gave rise to the “remedy” at law. Id.; see Pangburn
        v. Bull, 

, 350–51 (N.Y. Sup. Ct. 1828) (concluding mali-
        cious-prosecutions claims “did not require an arrest or bail” be-
        cause other forms of legal process may give rise to damages
        “equally great”).
                 To be sure, that plaintiffs could seek redress for many abuses
        of the legal process did not mean courts treated all alleged mali-
        cious prosecutions equally. See Howard, 25 F.4th at 911–12. Of
        course, some courts ignored whether the dispute concerned a pre-
        vious civil or criminal case. See, e.g., Stewart, 

 (“Not-
        withstanding what has been said in some decisions of a distinction
        between actions for criminal prosecutions and civil suits, both clas-
        ses at the present day require substantially the same essentials.”);
        Collins, 

 (“Although this prosecution was to recover
        damages for a private wrong . . . it is governed by rules of law pre-
        cisely the same, had the prosecution been of a criminal charac-
        ter.”). But others recognized “a distinction between . . . civil
        suits . . . prosecuted for the private benefit of the plaintiff and a ma-
        licious prosecution of an offense . . . which affects the public.” Ad-
        ams v. Lisher, 

 (Ind. 1833); see COOLEY, supra, at 185
        (discussing the distinction).
               The law in the jurisdictions that distinguished between the
        two “favoured” the “prosecutor” by preventing a plaintiff from re-
        lying on the prosecuting attorney’s ill-founded “private motive[s],”
        Adams, 

, or by “departing from the ordinary rules of
        pleading and proof, and imposing upon” a plaintiff “the burden of
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        32                      Opinion of the Court                  23-11452

        negativing probable cause as the foundation of the prosecution,”
        Spengler, 56 Va. (15 Gratt.) at 390. Compare Grant v. Deuel, 

 (La. 1842) (requiring, for malicious criminal prosecutions, “pos-
        itive evidence . . . that the prosecution was groundless”), with
        Burhans, 

 (holding proof that defendants voluntar-
        ily discontinued a suit for slander “was sufficient to change the onus,
        and throw upon the defendants the necessity of showing probable
        cause”).
                Still, of the possible distinctions between malicious-prosecu-
        tion claims premised on baseless civil and criminal suits, none ap-
        pear to have gone to the facial viability of a plaintiff’s case. In other
        words, the form of the proceeding the defendant instituted or con-
        tinued was not inherently relevant. See Kryszke v. Kamin, 

 (1910) (“The name or form of the writ or process is imma-
        terial.”). Rather, the nature of the damages the plaintiff suffered
        supplied the limiting principle, to the extent one existed: courts
        would not entertain malicious-prosecution suits premised on prior
        legal proceedings when the usual rules of cost-shifting adequately
        compensated a plaintiff for the damage of defending the baseless
        suit.
                We can trace this throughline back to the thirteenth century.
        The earliest iterations of the common law guaranteed individuals
        access to the King’s courts. But the courts discouraged unfounded
        litigation through sureties, pledges of prosecution, and
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        23-11452                   Opinion of the Court                                 33

        amercement.11 See Note, Groundless Litigation and the Malicious Pros-
        ecution Debate: A Historical Analysis, 

, 1221–27 (1979)
        [hereinafter Groundless Litigation] (recounting the precursors to ma-
        licious-prosecution claims); see also John D. Lawson, The Action for
        the Malicious Prosecution of a Civil Suit, 30 AM. L. REG. 281, 282–83
        (1882).
                Over time, though, these remedies proved ineffective against
        mounting waves of false suits. So starting in 1267 with the Statute
        of Marlborough,12 Parliament legislated rules that ensured success-
        ful parties in a suit would recover their litigation costs. Groundless
        Litigation, supra, at 1226–27; see id. at 1226 n.64 (collecting statutes).
        These statutes abated the concern that a plaintiff needed a later civil
        action to obtain redress. See Lawson, supra, at 283; Torts—Malicious




        11 “Amercements were payments to the Crown, and were required of individ-

        uals who were ‘in the King’s mercy,’ because of some act offensive to the
        Crown.” Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 

 (1989). Vexatious litigation fell among the acts “offensive to the Crown.”
        See Groundless Litigation, supra, at 1222–24.
        12 Although case law and legal literature commonly refer to this statute as ca-

        nonical in the development of the tort of malicious prosecution, it goes by
        many names. Some have called it the Statute of Marleberge. See, e.g., Ground-
        less Litigation, supra, at 1223 n.40. Others, the Statute of Marlbridge. See, e.g.,
        Whipple v. Fuller, 

 (Conn. 1836). But we use the moniker that
        official U.K. sources have adopted, the Statute of Marlborough. See The Statute
        of Marlborough 1267 [Distress], THE NATIONAL ARCHIVES, https://www.legisla-
        tion.gov.uk/aep/Hen3cc1415/52/1 [https://perma.cc/7PCF-MYFW] (dis-
        cussing The Statute of Marlborough 1267, 

 c. 6, § 2 (Eng.)).
USCA11 Case: 23-11452      Document: 50-1       Date Filed: 06/09/2025      Page: 34 of 55




        34                      Opinion of the Court                   23-11452

        Prosecution—Civil Action—Absence of Interference with Person or Prop-
        erty, 

, 310 (1921).
               And in turn, to maintain a suit for malicious prosecution,
        English courts required a showing of special damages apart from
        those curable through an award of costs. See, e.g., Waterer, 91 Eng.
        Rep. at 413; Hobart at 267; Savile v. Roberts (1698) 91 Eng. Rep. 1147,
        1551; 1 Ld. Raym. 374, 381; Parker v. Langley (1713) 93 Eng. Rep.
        293, 294; Gilb. Cas. 163, 164–67; Cotterell v Jones (1851) 138 Eng. Rep.
        655, 661; 11 C. B. 713, 727–29 (opinion of Jervis, C.J.); 

; 11
        C. B. at 730–31 (opinion of Talfourd, J.).
               This history greatly influenced the scope of malicious-pros-
        ecution claims in American courts. Many courts adopted this so-
        called “English rule” and required special damages to sustain a ma-
        licious-prosecution action.
               These courts held that in the absence of an arrest, of a sei-
        zure, attachment, or interference with property, or of other conse-
        quential damages, such as damage to reputation, a successful de-
        fendant has no remedy, even when an antagonist proceeded against
        him maliciously and without probable cause. See, e.g., Thomas v.
        Rouse, 

 (1806); Potts v. Imlay, 

        (1816) (opinion of Kirkpatrick, C.J.); Cade v. Yocum, 

 (1852); Gorton v. Brown, 

 (1862); Mayer v. Walter,
        

 (1870); Salado Coll. v. Davis, 

 (1877);
        McNamee v. Minke, 

, 133–34 (1878); Wetmore v. Mellinger,
        

 (Iowa 1884); Mitchell v. Sw. R.R., 

, 404–
        05 (1885); Ely v. Davis, 

 (N.C. 1892); Mitchell v. Silver
USCA11 Case: 23-11452         Document: 50-1          Date Filed: 06/09/2025          Page: 35 of 55




        23-11452                    Opinion of the Court                                 35

        Lake Lodge No. 84, I.O.O.F., 

 (1896); cf. Tomlinson v.
        Warner, 

, 104–05 (1839) (favoring the English rule in
        dicta), limited as dicta in Pope v. Pollock, 

, 357 (Ohio 1889)
        (disfavoring the English rule in dicta); Rice v. Day, 

        (Neb. 1892) (adopting the English rule), overruled by McCormick Har-
        vester Mach. Co. v. Willan, 

, 497–98 (Neb. 1901) (rejecting
        the English rule).13
              But many others rejected this “English rule.” Instead, these
        courts credited the “principle” that was “operative” throughout
        common-law jurisprudence: plaintiffs may state a claim for

        13 Because the issue of damages is not before us, we do not now rule on the

        full extent of damages recoverable in a Fourth Amendment malicious-prose-
        cution action. Still, we do not imply that jurisdictions adopting the special-
        damages requirement precluded recovery of all litigation expenses. It appears
        that, in some of the states that rejected the English rule, as well as those that
        did not specifically address the English rule, around the time Congress enacted
        Section 1983, plaintiffs could still recover some litigation expenses incurred in
        defending the original, malicious prosecution. See, e.g., Littlejohn v. Wilcox, 

 (1847); Barnett v. Reed, 

 (1865); Law-
        rence v. Hagerman, 

 (1870); Bonesteel v. Bonesteel, 

, 515–
        16 (1872); Cooper v. Utterbach, 

, 315–16 (1873); Krug v. Ward,
        

 (1875); Stewart, 98 U.S. at 190–91, 197; Coleman v. Allen, 

 (1888); Slater v. Kimbro, 

, 

 (1892); Hurlbut
        v. Boaz, 

 (1893); Rule v. McGregor, 

        (Iowa 1902); Stanford v. A. F. Messick Grocery Co., 

, 817–18 (N.C.
        1906); see also Parsons v. Harper, 

, 73–74, 78 (1860); Lavender
        v. Hudgens, 

, 770–71 (1878); Vinal v. Core, 

, 48–50
        (1881); Wheeler v. Hanson, 

 (1894); Blunk v. Atchison, T. &
        S.F.R. Co., 

 (C.C.W.D. Mo. 1889); Hewellette v. George, 

,
        887 (Miss. 1891), overruled on other grounds by Glaskox ex rel. Denton v. Glaskox,
        

 (Miss. 1992).
USCA11 Case: 23-11452         Document: 50-1         Date Filed: 06/09/2025         Page: 36 of 55




        36                         Opinion of the Court                        23-11452

        malicious prosecution when “taxation of costs is not an ample rem-
        edy.” Whipple v. Fuller, 

 (1836); see, e.g., Pangburn,
        1 Wend. at 350–54; Closson v. Staples, 

, 215–22 (1869); Mar-
        bourg v. Smith, 

 (1873); Woods v. Finnell, 

, 633–35 (1878); McCardle v. McGinley, 

, 540–41
        (1882) (citing Lockenour, 57 Ind. at 364–65); Eastin v. Bank of Stock-
        ton, 

, 126–27 (1884); McPherson v. Runyon, 

 (1889); Antcliff v. June, 

 (1890) (citing Brand v.
        Hinchman, 

 (1888)); Smith v. Burrus, 

,
        881–82 (Mo. 1891) (citing Brady v. Ervin, 

, 534–35 (1871));
        Lipscomb, 33 S.W. at 818–19; Kolka v. Jones, 

 (N.D.
        1897); cf. Marshall v. Betner, 

 (1850) (allowing recov-
        ery of litigation expenses on reasoning that rejects the English
        rule); Hoyt v. Macon, 

, 116–17, 119–21 (1873) (same);
        Pope, 21 N.E. at 357 (disfavoring the English rule in dicta).
               And in the United States, cost awards were often insufficient
        to make prevailing defendants whole. See Masterson v. Brown, 

 (5th Cir. 1896) (concluding “no similar or equivalent pro-
        visions for adjudging costs are of force in any of the different
        states”). 14 States’ cost-shifting statutes “were not intended or sup-
        posed to be an adequate compensation for all damages [a litigant]
        might sustain and should recover by reason of defending a suit



        14 All decisions that the Fifth Circuit issued by the close of business on Septem-

        ber 30, 1981, are binding precedent in this Court. Bonner v. City of Prichard, 

 (11th Cir. 1981) (en banc).
USCA11 Case: 23-11452      Document: 50-1      Date Filed: 06/09/2025      Page: 37 of 55




        23-11452                Opinion of the Court                         37

        which was brought and prosecuted maliciously and without prob-
        able cause.” Closson, 

.
                In fact, courts remarked that it was “too clear for discussion
        that the costs which the law gives a successful party are no ade-
        quate compensation for the time, trouble and expense of defending
        a malicious and groundless civil action.” McCardle, 

;
        see Kolka, 

 (“That our meager bill of costs was in-
        tended to recompense the victim of the malicious prosecution of
        a civil suit is, to our minds, unthinkable.”). So in refusing to “shut
        [their] eyes to the truth known by every body,” Whipple, 

, many states enabled plaintiffs to bring malicious-prosecu-
        tion claims by alleging the actual “expenses incurred and damages
        sustained” in defending baseless suits, Woods, 

 (concluding litigation expenses “should be as fully recognized
        as if his property had been attached or his body taken charge of by
        the sheriff”); see COOLEY, supra, at 188–89, 188 n.3 (listing cases but
        disfavoring the rule). And under that rule, courts considered rou-
        tine yet baseless and malicious civil suits to amount to tortious con-
        duct.
               “In the light of this history, we have no trouble discerning a
        well-settled principle of law to guide our analysis.” Laskar, 972 F.3d
        at 1289. Many forms of legal process may give rise to a common-
        law claim for malicious prosecution. The limiting principle is the
        plaintiff’s injury, not the civil or criminal nature of the legal process
        the defendant previously instituted or continued. So as long as the
        plaintiff proved the acceptable type of damages the relevant
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        38                     Opinion of the Court                  23-11452

        jurisdiction required, plaintiffs could maintain a suit for malicious
        prosecution. In many cases, any unremedied damage—even litiga-
        tion costs alone—sufficed. But in others, plaintiffs had to prove
        special damages, like reputational harm, attachment of property,
        or an arrest of their person. See McNamee, 49 Md. at 133–34.
               For our purposes, though, in every jurisdiction, a plaintiff in
        Gervin’s shoes could state a claim for malicious prosecution. An
        arrest and corresponding bodily confinement gave rise to the spe-
        cial damages that even stringent jurisdictions demanded. See How-
        ard, 25 F.4th at 911 (linking “a criminal prosecution” with “a civil
        action that resulted in an arrest”); HILLARD, supra, at 475 (discussing
        “injury to the person, as connected with false imprisonment, and
        also to property”); Burnap, 13 Ill. at 540–41 (confirming the term
        malicious prosecution “has been often used by learned courts and
        elementary writers as applying to prosecutions of civil suits, in
        which the party has been maliciously arrested”); see also Mitchell, 

 (requiring that the “person of the defendant was ar-
        rested, or his property attached, or any special grievance to defend-
        ant”).
               And the more permissive jurisdictions also recognized that a
        cost-shifting statute could not remedy damages stemming from a
        person’s seizure. See Closson, 

 (“arresting the body”
        may “enhance[]” damages but it is “not essential to maintain an ac-
        tion”); accord Pangburn, 1 Wend. at 350–51; Whipple, 11 Conn. at
        584–85; Marbourg, 

; Woods, 

. So the common law would have permitted Gervin’s suit. For
USCA11 Case: 23-11452     Document: 50-1     Date Filed: 06/09/2025    Page: 39 of 55




        23-11452              Opinion of the Court                       39

        that reason, Defendants cannot now resist his Fourth Amendment
        claim on that basis.
                                  *      *      *
                To recap, the district court correctly concluded that a rea-
        sonable jury could find that Defendants violated Gervin’s Fourth
        and Fourteenth Amendment rights. When we construe the evi-
        dence in the light most favorable to Gervin, Florence and Milton
        used the legal process to seize Gervin and continually detain him;
        those proceedings terminated in Gervin’s favor; and, aside from
        the legal process used to seize Gervin, nothing could constitution-
        ally justify Gervin’s arrest and detention.
               On top of that, Gervin presented enough evidence to allow
        a jury to conclude that the legal process justifying his seizure was
        constitutionally infirm. When we again view the evidence in the
        light most favorable to Gervin, the warrant application Florence
        submitted, the probation-revocation petition Milton filed, and the
        testimony Milton gave at the probation-revocation hearing in-
        cluded false statements and material omissions about the condi-
        tions of probation that applied to Gervin. And both Florence and
        Milton had easy access to, and said they reviewed, definitively ex-
        culpatory information (Gervin’s sentencing form). So a jury could
        reasonably conclude the pair made false statements and material
        omissions recklessly. Under our precedent, Gervin has made out a
        viable Fourth Amendment malicious-prosecution claim.
              Neither Gervin’s status as a probationer nor the probation-
        based nature of the legal proceedings that resulted in Gervin’s
USCA11 Case: 23-11452      Document: 50-1       Date Filed: 06/09/2025       Page: 40 of 55




        40                      Opinion of the Court                    23-11452

        seizure undermines that conclusion. The Fourth Amendment’s
        protections don’t depend on the character of the legal process caus-
        ing a seizure. Indeed, the Fourth Amendment’s text, as well as our
        precedent, make that clear. And the common-law background
        against which Congress enacted Section 1983 confirms what we
        glean from the Constitution’s text. A plaintiff could state a claim
        for malicious prosecution, even if the previous prosecution was
        civil in nature, if it led to the plaintiff’s arrest. So we reject Defend-
        ants’ argument that probation-revocation proceedings are not pros-
        ecutions within the scope of Gervin’s Section 1983 claim.
            With that settled, we consider Defendants’ claim of qualified
        immunity.
               B. Gervin premises his Fourth Amendment malicious-prosecu-
                  tion claim on clearly established law, so Defendants are not en-
                  titled to qualified immunity.
                Qualified immunity attempts to balance “the need to hold
        public officials accountable when they exercise power irresponsibly
        and the need to shield officials from harassment, distraction, and
        liability when they perform their duties reasonably.” Pearson v. Cal-
        lahan, 

 (2009). To accomplish these dual goals, the
        doctrine protects government officials engaged in discretionary
        functions and sued in their individual capacities unless they violate
        “clearly established federal statutory or constitutional rights of
        which a reasonable person would have known.” Keating v. City of
        Miami, 

 (11th Cir. 2010). The “clearly established”
        requirement shields from liability “all but the plainly incompetent
USCA11 Case: 23-11452     Document: 50-1      Date Filed: 06/09/2025     Page: 41 of 55




        23-11452               Opinion of the Court                        41

        or one who is knowingly violating the federal law.” Lee v. Ferraro,
        

 (11th Cir. 2002) (citation omitted).
                Three limitations on the legal authorities that plaintiffs may
        use to advance their claims ensure that the governing law is, in fact,
        “clearly established” before a plaintiff may avoid a qualified-im-
        munity defense: the substance of the law on which the plaintiff may
        rely, the jurisdiction of the case law the plaintiff may invoke, and
        the timing of the issuance of that case law. Each of these limita-
        tions contributes to providing defendants with notice of the gov-
        erning law.
                First, we limit the substance of the law a plaintiff may use:
        he “must point to (1) ‘case law with indistinguishable facts,’ (2) ‘a
        broad statement of principle within the Constitution, statute, or
        case law,’ or (3) ‘conduct so egregious that a constitutional right
        was clearly violated, even in the total absence of case law.’” Crocker
        v. Beatty, 

, 1240 (11th Cir. 2021) (quoting Lewis v. City
        of West Palm Beach, 

, 1291–92 (11th Cir. 2009)).
               Second, we limit the jurisdictions from which a plaintiff may
        identify applicable law: the plaintiff must point “to binding deci-
        sions of the Supreme Court of the United States, this Court, [or]
        the highest court of the relevant state” (here, Georgia). Glasscox v.
        City of Argo, 

 (11th Cir. 2018). Other
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        42                         Opinion of the Court                        23-11452

        jurisdictions’ precedent cannot clearly establish the law in our Cir-
        cuit. Thomas ex rel. Thomas v. Roberts, 

, 955 (11th Cir.
        2003). 15
                 And third, we limit the timing of the relevant case law: plain-
        tiffs may rely on only the case law issued at the time of the official’s
        act, not on law that developed later. Harlow, 

. After
        all, “[i]f objective observers cannot predict—at the time the official
        acts—whether the act was lawful or not, and the answer must await
        full adjudication in a district court years in the future, the official
        deserves immunity from liability for civil damages.” Foy v. Holston,
        

 (11th Cir. 1996).
              Under these principles, Defendants are not entitled to quali-
        fied immunity.
                We start with Florence, who filed the 2012 warrant applica-
        tion that led to Gervin’s arrest. We’ve already explained that offi-
        cials violate clearly established Fourth Amendment law “if they
        knowingly or recklessly make ‘false statements in an arrest affidavit
        about the probable cause for an arrest in order to detain a citi-
        zen . . . if such false statements were necessary to the probable

        15 We are currently considering en banc whether to overrule our precedent

        and to allow plaintiffs to defeat qualified immunity by relying on a robust con-
        sensus of cases of persuasive authority. See Gilmore v. Ga. Dep’t of Corr., 

, 1135–36 (11th Cir.), reh’g en banc granted, opinion vacated, 

 (11th Cir. 2024). For the reasons we explain below, our resolution of Gil-
        more does not impact the outcome of this dispute; controlling Supreme Court
        authority and the law of this Circuit clearly established the alleged constitu-
        tional violations here.
USCA11 Case: 23-11452      Document: 50-1      Date Filed: 06/09/2025      Page: 43 of 55




        23-11452                Opinion of the Court                         43

        cause.’” Laskar, 972 F.3d at 1297 (alteration in original) (quoting
        Jones v. Cannon, 

, 1285 (11th Cir. 1999)).
               So when we draw all factual inferences in Gervin’s favor, as
        we did in the discussion in the last section, Florence’s liability “fol-
        lows immediately from the conclusion that the right was firmly es-
        tablished.” Id. (cleaned up) (quoting District of Columbia v. Wesby,
        

, 64 (2018)). Because Florence did not assert (and the
        record did not show) that Gervin violated his only actual probation
        condition, Florence did not even have “‘arguable’ probable cause,”
        Grider v. City of Auburn, 

, 1257 & n.25 (11th Cir. 2010),
        or arguable reasonable suspicion, cf. Chandrasuwan, 

,
        that Gervin violated his probation. And that means she does not
        enjoy qualified immunity.
               The same goes for Milton. Officers “cannot intentionally or
        recklessly make material misstatements or omissions in later testi-
        mony to continue detention.” Howard, 25 F.4th at 907 (citing Ma-
        nuel, 580 U.S. at 369 n.8). Nor can they rely on an “invalid
        charge . . . to continue” a detention. Chiaverini v. City of Napoleon,
        

 (2024) (citing Rodriguez v. United States, 

, 354–57 (2015)); see Wood, 

 (holding that “a crim-
        inal prosecution . . . continued . . . without probable cause” can
        violate the Fourth Amendment).
               The Supreme Court held as much in 2017, when it con-
        cluded that “tainted” legal process—by “fabricated evidence,” for
        instance—may result in a Fourth Amendment violation, “[w]hat-
        ever [the] precise form” of the tainted “proceeding.” Manuel, 580
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        44                      Opinion of the Court                  23-11452

        U.S. at 369 n.8. So if a jury finds that Milton continued Gervin’s
        2019 detention by recklessly making material misstatements or
        omissions in the probation-revocation petition or at the probation-
        revocation hearing, she violated Gervin’s clearly established consti-
        tutional rights.
               That much really isn’t up for dispute. Instead, Defendants
        suggest we should award them qualified immunity because, at the
        time of their relevant conduct, we had not “specifically addressed
        whether a probation violation is a ‘criminal prosecution’ for pur-
        poses of a § 1983 claim for malicious prosecution.” Smith v. Mitchell,
        

, 250 (11th Cir. 2021). We are not persuaded.
                Since the inception of our Fourth Amendment malicious-
        prosecution case law, we have confirmed that the nature of the le-
        gal process causing a seizure is irrelevant to whether a plaintiff may
        state a Fourth Amendment violation and, therefore, a Section 1983
        claim. “Our oldest decisions on the subject explained that ‘mali-
        cious prosecution’ is only a ‘shorthand way of describing’ certain
        claims for unlawful seizure, not an ‘independent Fourth Amend-
        ment right . . . to be free from a malicious prosecution.’” Laskar,
        972 F.3d at 1294 (quoting Whiting, 

). So, we’ve held,
        to “avoid an order of dismissal,” a plaintiff need only “base[] his
        claim—whatever he calls it—on some actual unlawful, forcible, re-
        straint of his person.” Whiting, 

; see also Kelly, 21 F.3d
        at 1553–55 (reviving a claim of malicious prosecution under the
        Fourth Amendment without considering whether the plaintiff sat-
        isfied the common-law elements). And here, Gervin does just that.
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        23-11452               Opinion of the Court                        45

               Plus, even under the line of cases on which Defendants rely,
        Gervin could still prove “the elements of the common law tort of
        malicious prosecution.” Wood, 

. True, our precedent
        relied on a Georgia statute authorizing malicious-prosecution suits
        premised on prior “criminal prosecution[s].” Uboh, 141 F.3d at 1004
        (quoting O.C.G.A. § 51–7–40); see also Wood, 323 F.3d at 881–82
        (quoting Uboh, 141 F.3d at 1004); Paez, 

 (quoting
        Wood, 

); Williams, 965 F.3d at 1157 (quoting Paez, 

); Butler, 85 F.4th at 1111 (same). But that fact does not
        suggest Defendants could not violate the Fourth Amendment
        through civil proceedings.
               Before Florence’s and Milton’s relevant conduct, the Su-
        preme Court clearly established that the common law of 1871 con-
        trols the scope of a Section 1983 claim. See Kalina v. Fletcher, 

 (1997) (concluding that Section 1983 must be “con-
        strued in the light of common-law principles that were well settled
        at the time of its enactment”). So the “the elements of the com-
        mon law tort of malicious prosecution,” Wood, 

, that
        Gervin must prove are those of the tort as it existed around the
        time Section 1983 was enacted, see Laskar, 972 F.3d at 1294 (citing
        Kalina, 

); Williams, 965 F.3d at 1157, not as Georgia
        codified it into statutes at the turn of the twenty-first century, cf.
        Uboh, 141 F.3d at 1004 (relying on Georgia statutory law).
              And as we’ve explained, the common law of that period did
        not limit malicious-prosecution claims to redress for wrongful
        criminal prosecutions. In fact, we recognized more than a century
USCA11 Case: 23-11452     Document: 50-1      Date Filed: 06/09/2025    Page: 46 of 55




        46                     Opinion of the Court                23-11452

        ago that a person may state a common-law claim for malicious
        prosecution if someone abused civil process to “maliciously arrest[]
        another.” Masterson, 

; see also Mitchell, 

        (“[W]hen an action was sued out maliciously and without probable
        cause, whereby the person of the defendant was arrested . . . , then
        in such a case the action would lie.”).
               To translate these points back into the language of our qual-
        ified-immunity precedent, two “broad statement[s] of principle
        within” our “case law,” Crocker, 995 F.3d at 1240, independently re-
        fute the suggestion that Gervin may not state a Fourth Amend-
        ment claim because the legal process causing his arrest and contin-
        ued detention were probation-revocation proceedings. First, it’s
        well established that “the Fourth Amendment protects against
        ‘searches’ and ‘seizures’ (and not ‘prosecutions’).” Whiting, 

. And Defendants’ conduct caused Gervin to be seized and
        detained for several months. Second, the Supreme Court has long
        held that the common law of 1871, not today, helps define Section
        1983 claims. Kalina, 

. And the law at that time was
        unanimous that both criminal and civil proceedings leading to an
        arrest were tortious conduct remedied by malicious-prosecution
        claims. See Masterson, 

; Kolka, 

 (surveying
        nineteenth-century case law).
               Given these two principles, any reasonable officer would
        know that a seizure that was constitutionally infirm because it was
        secured through false or misleading evidence would create dam-
        ages liability “no matter what kind of ” legal process led to that
USCA11 Case: 23-11452      Document: 50-1      Date Filed: 06/09/2025      Page: 47 of 55




        23-11452                Opinion of the Court                         47

        seizure. See Jarrard v. Sheriff of Polk Cnty., 

, 1325 (11th
        Cir. 2024); see also United States v. Lanier, 

 (1997)
        (confirming “a general constitutional rule already identified in the
        decisional law may apply with obvious clarity to the specific con-
        duct in question, even though ‘the very action in question has not
        previously been held unlawful’” (cleaned up)). So Florence and
        Milton do not enjoy qualified immunity.
                                 IV.    CONCLUSION
               For the reasons we’ve discussed, we affirm the district
        court’s partial denial of Defendants’ motion for summary judg-
        ment and remand the case for further proceedings consistent with
        this opinion.
               AFFIRMED AND REMANDED.
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        23-11452               WILSON, J., Concurring                          1

        WILSON, Circuit Judge, joined by ABUDU, Circuit Judge, Concur-
        ring:
               I agree with the majority’s holding that, viewing the evi-
        dence in the light most favorable to DeShawn Gervin, his claim
        under 

 for a violation of his Fourth Amendment
        rights should survive summary judgment. I also agree that the Pro-
        bation Officer Defendants cannot claim qualified immunity. But I
        concur only after reckoning with a body of Supreme Court and
        Eleventh Circuit precedent that may, at first glance, seem to dictate
        a different result. In the end, however, a deeper review of Fourth
        Amendment precedent directs the proper outcome here.
               The Fourth Amendment protects against unreasonable sei-
        zures both “before the formal onset of a criminal proceeding” and
        “when legal process itself goes wrong.” Manuel v. City of Joliet, 

, 359 (2017). To make out a claim based on an unreasonable
        seizure pursuant to legal process, plaintiffs must prove both the el-
        ements of the common-law tort of malicious prosecution and show
        a violation of their Fourth Amendment rights. Butler v. Smith, 

, 1111 (11th Cir. 2023). We have repeatedly, but not ex-
        clusively, listed “‘a criminal prosecution instituted or continued by
        the present defendant’” as the first element of the malicious prose-
        cution tort. E.g., 

 (quoting Paez v. Mulvey, 

        (11th Cir. 2019)); see also Blue v. Lopez, 

 (11th Cir.
        2018). But see Thompson v. Clark, 

, 44 (2022) (describing
        the first element of the malicious prosecution tort as “the suit or
        proceeding was ‘instituted without any probable cause’”); Sylvester
USCA11 Case: 23-11452       Document: 50-1       Date Filed: 06/09/2025       Page: 49 of 55




        2                       WILSON, J., Concurring                   23-11452

        v. Fulton Cnty. Jail, 

, 1329 (11th Cir. 2024) (listing ele-
        ments for a Section 1983 malicious prosecution claim as “(1) the
        legal process justifying the plaintiff’s seizure was constitutionally
        infirm, (2) the seizure would not otherwise be justified without le-
        gal process, and (3) the criminal proceedings against the plaintiff
        terminated in his favor” (alterations adopted and internal quotation
        marks omitted)); Luke v. Gulley, 

, 95 (11th Cir. 2022) (per
        curiam) (same).
               The Probation Officers argue that Gervin’s claim fails be-
        cause he cannot establish that there was a “criminal prosecution”
        instituted against him. And precedent initially seems to back them
        up. Cases from the Supreme Court and the Eleventh Circuit state
        that the revocation of parole or probation is “‘not a stage of a crim-
        inal prosecution.’” United States v. Dennis, 

, 927 (11th
        Cir. 2022) (quoting Gagnon v. Scarpelli, 

 (1973)); see
        also Morrissey v. Brewer, 

 (1972) (“[T]he revocation
        of parole is not part of a criminal prosecution . . . .”). At first glance,
        the inquiry ends here. Gervin’s claim derives from his detention for
        probation revocation and probation revocation is not part of a
        criminal prosecution, so he cannot meet the first element of his
        claim. But it is worth taking a closer look.
               To start, the Supreme Court has never suggested that peo-
        ple on probation or parole lose their Fourth Amendment rights. To
        be sure, states can require probationers or parolees to agree to war-
        rantless searches as a condition of release. See Samson v. California,
        

, 846 (2006); United States v. Knights, 

, 122
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        23-11452               WILSON, J., Concurring                        3

        (2001); Owens v. Kelley, 

 (11th Cir. 1982). But
        without such laws or agreements, “[t]here is no question that the
        Fourth Amendment’s protection against unreasonable searches
        and seizures applies to probationers.” Owens, 

 (cit-
        ing Morrisey, 

).
                The foundational Supreme Court cases that held that de-
        fendants facing probation and parole revocations were not guaran-
        teed the full suite of constitutional protections afforded to defend-
        ants in criminal prosecutions recognized the same. In Morrissey, the
        Court considered what process is due before revoking parole. 408
        U.S. at 480–81. It reasoned that the liberty retained by a parolee,
        albeit “[s]ubject to the conditions of his parole,” still “must be seen
        as within the protection of the Fourteenth Amendment.” 

.
        Even though “revocation of parole is not part of a criminal prose-
        cution” such that “the full panoply of rights due a defendant in such
        a proceeding does not apply,” the Court still contemplated that
        “probable cause or reasonable ground” would be required to sus-
        tain an arrest for “violation of parole conditions.” 

.
               Soon after, the Court recognized the same—that probable
        cause would be required to sustain an “arrest and detention” for a
        violation of conditions of release—for probation. Gagnon, 411 U.S.
        at 781–82. These two cases show that while the process due in rev-
        ocation hearings might not include every constitutional protection
        for criminal prosecutions, like the right to counsel, due process still
        requires a determination that the arrest was supported by probable
        cause. And because the Court requires such a determination, it
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        4                         WILSON, J., Concurring                        23-11452

        follows that probationers and parolees retain Fourth Amendment
        protections against arrests made without probable cause.
                Additionally, nearly all 1 of the cases addressing which con-
        stitutional protections apply in parole or probation revocations af-
        ter Morrissey and Gagnon considered which of the Fifth and Sixth
        Amendment rights in criminal trials extend to revocation hearings.
        See Maj. Op. at 20 n.8 (collecting cases). This distinction—Fourth
        Amendment versus Fifth or Sixth Amendment—matters because,
        as the Majority Opinion rightly explains, “the Fourth Amendment
        is different.” Maj. Op. at 19. Fifth and Sixth Amendment protec-
        tions attach during “criminal case[s],” U.S. Const. amend. V., and
        “criminal prosecutions,” 

 amend. VI. 2 It makes sense that if rev-
        ocations are not part of the criminal proceedings, the constitutional


        1 In Pennsylvania Board of Probation & Parole v. Scott, the Supreme Court held

        that the exclusionary rule does not apply in parole revocation hearings. 

 (1998). Although the rule operates by excluding evidence ob-
        tained in violation of the Fourth Amendment, it is a judicially created rule that,
        unlike the Fourth Amendment, does not “extend . . . beyond the criminal
        trial.” 

 at 363–64.
        2 The Fifth and Sixth Amendments apply at “critical stages” of the prosecution,

        or “pretrial procedures that would impair defense on the merits if the accused
        [were] required to proceed without counsel.” Gerstein v. Pugh, 

 (1975). The “adversary safeguards” provided by the Fifth and Sixth
        Amendments “are not essential for the probable cause determination required
        by the Fourth Amendment.” 

. Not because it is not a criminal pro-
        ceeding, but because “[i]n most cases, however, their value would be too slight
        to justify holding, as a matter of constitutional principle, that these formalities
        and safeguards designed for trial must also be employed in making the Fourth
        Amendment determination of probable cause.” 

.
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        23-11452              WILSON, J., Concurring                         5

        rights that attach during criminal trials would not be due. But the
        Fourth Amendment is not restrained to criminal cases and prose-
        cutions in the same way; it applies broadly to all “unreasonable
        searches and seizures” not supported by “probable cause.” 

        amend. IV. Looking to the Morrissey and Gagnon line of reasoning
        on the Fifth and Sixth Amendments to limit what counts for Fourth
        Amendment protection would be no wiser than trying to fit a
        square peg in a round hole.
               Because people on parole and probation retain Fourth
        Amendment rights, they should be able to bring a Section 1983
        claim when those rights are violated, such as when they are unlaw-
        fully seized without probable cause. Other Supreme Court prece-
        dent referencing the Fourth Amendment as a pretrial right does not
        change this conclusion, even though parole and probation “arise[]
        after the end of the criminal prosecution.” Gagnon, 

        (quoting Morrissey, 

).
               For example, in Albright v. Oliver, the four-Justice plurality
        referenced the Fourth Amendment as addressing “pretrial depriva-
        tions of liberty.” 

 (1994) (plurality opinion). But it
        did so in a much different context—considering whether to recog-
        nize a Fourteenth Amendment substantive due process right to be
        free of prosecution without probable cause. 

. In the pro-
        cess of rejecting such a right based on substantive due process, the
        plurality suggested that the plaintiff’s claim would instead have to
        be judged under the Fourth Amendment because there was a sei-
        zure. 

 (plurality opinion). It also more generally “noted
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        6                      WILSON, J., Concurring                 23-11452

        the Fourth Amendment’s relevance to the deprivations of liberty”
        and “to any extended restraint on liberty,” which often “go hand in
        hand with criminal prosecutions” but also occur “following an ar-
        rest.” 

 (plurality opinion) (citing Gerstein v. Pugh, 

 (1975)). With arrest, or “seizure,” as the touchstone, Albright
        supports the availability of the Section 1983 claim in Gervin’s case.
               The Court similarly referenced the Fourth Amendment’s
        application to “pretrial confinement” in Manuel, 580 U.S. at 360.
        There, the Court held that a criminal defendant could challenge his
        pretrial detention, not just his arrest, even after a judge made a find-
        ing of probable cause. Id. at 360–62. And Manuel’s holding, “that the
        Fourth Amendment governs a claim for unlawful pretrial detention
        even beyond the start of legal process,” id. at 369–70 (emphasis
        added), makes sense in the context of the case. The plaintiff alleged
        he was wrongfully held on criminal charges before trial based on
        fabricated evidence. Id. at 362. The Court had no occasion to con-
        sider other situations, like probation revocation. And the broader
        Fourth Amendment principles sketched by the Manuel Court
        equally encompass Gervin’s situation. As the Court explained:
               The Fourth Amendment prohibits government offi-
               cials from detaining a person in the absence of proba-
               ble cause. That can happen when the police hold
               someone without any reason before the formal onset
               of a criminal proceeding. But it also can occur when
               legal process itself goes wrong—when, for example, a
               judge’s probable-cause determination is predicated
               solely on a police officer’s false statements. Then, too,
               a person is confined without constitutionally
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        23-11452               WILSON, J., Concurring                          7

               adequate justification. Legal process has gone for-
               ward, but it has done nothing to satisfy the Fourth
               Amendment’s probable-cause requirement. And for
               that reason, it cannot extinguish the detainee’s Fourth
               Amendment claim . . . .
        Id. at 367 (citation omitted).
                The references to the Fourth Amendment as a “pretrial”
        right do not foreclose the application of the Fourth Amendment to
        arrests for probation revocation. Indeed, the Fourth Amendment
        seems to require us to recognize a Section 1983 claim because
        Gervin was arrested and detained “without constitutionally ade-
        quate justification.” Id. This approach is faithful to Albright and Ma-
        nuel’s recognition that the Fourth Amendment prohibits detaining
        a person without probable cause. See id.; Albright, 

.
        It also adheres to Morrissey and Gagnon’s recognition that “probable
        cause or reasonable ground” still must justify an arrest for “viola-
        tion of parole conditions.” Morrissey, 

; see also Gag-
        non, 411 U.S. at 781–82.
                Finally, it bears repeating: the term “malicious prosecution”
        is a bit of a misnomer. See Maj. Op. at 21–24. “A claim of malicious
        prosecution under the Fourth Amendment is only ‘shorthand’ for
        a claim of deprivation of liberty pursuant to legal process . . . .” Las-
        kar v. Hurd, 

, 1292 (11th Cir. 2020) (citing Williams v.
        Aguirre, 

, 1157–59 (11th Cir. 2020)); accord Thompson,
        596 U.S. at 42. When analyzing these claims, we look to “whether
        the seizure was justified, not whether the prosecution itself was
        justified.” Laskar, 972 F.3d at 1292. After all, the Fourth
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        8                     WILSON, J., Concurring              23-11452

        Amendment prohibits unreasonable “searches and seizures,” not
        unreasonable “prosecutions.” We need not allow a claim’s nick-
        name to dictate its substance.
              Because Supreme Court and Eleventh Circuit precedent
        support the availability of a Section 1983 claim in Gervin’s case, I
        concur.