Kameron Butler v. Charlene Smith
Citation85 F.4th 1102
Date Filed2023-10-27
Docket22-11141
Cited24 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11141
____________________
KAMERON BUTLER,
PlaintiďŹ-Appellant,
versus
CHARLENE SMITH,
individually,
Defendant-Appellee,
CITY OF CONYERS, GEORGIA,
Defendant.
____________________
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2 Opinion of the Court 22-11141
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03150-JPB
____________________
Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.
NEWSOM, Circuit Judge:
The Court sua sponte VACATES its prior opinion, issued
October 25, 2023, and substitutes the following in its place. The
only change is the deletion of the former footnote 5.
* * *
Parenting is hard. Raising children requires patience, sacri-
fice, and tenderness. It also requires tough choices. And some-
times it requires tough love. Even the most well-intentioned par-
ents struggle to get the balance just right.
That struggle was real for Kameron Butler, a single mother
of three who worked outside the home as a medical assistant.
When Butler and her family moved to a new school district, she
gave her 17-year-old son, Jayden, a choice: He could either enroll
at the school for which he was now zoned, in which case he would
have access to bus service to and from campus, or he could remain
at the school where heâd been for three years, in which case, due
to her work schedule, theyâd have to get creative about his after-
noons. If he opted to stay, she said, Jayden could either walk sev-
eral miles home or spend the afternoons at school or at a local park
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22-11141 Opinion of the Court 3
until she could pick him up. Given the choice, Jayden opted to stay
at the school he knew.
Weâll get into the details soon enough, but in short, a school
resource officer, Charlene Smith, took issue with Butlerâs plan for
managing Jaydenâs afternoons and, eventually, sought and ob-
tained arrest warrants for first- and second-degree child crueltyâ
felonies that are punishable by mandatory prison terms and that
target conduct, respectively, that âwillfully deprives the child of
necessary sustenance to the extent that [his] health or well-being is
jeopardizedâ and that âwith criminal negligence causes a child un-
der the age of 18 cruel and excessive physical or mental pain.â Ga.
Code Ann. § 16-5-70(a), (c). Butler was arrested, charged with both
crimes, and spent four days in jail before posting bond. All charges
were eventually dismissed.
Butler sued Officer Smith for malicious prosecution under
both federal and state law. The Fourth Amendment, under which
federal-law claims for malicious prosecution arise, affords police of-
ficers significant latitude to seek arrest warrants based on âprobable
causeââa reasonable (even if mistaken) belief that a crime has been
committed. The doctrine of qualified immunity extends that lati-
tude further, protecting an officer against liability provided that she
had arguable probable cause. State-law immunity doctrines like-
wise give officers ample breathing room to make reasonable mis-
takes.
But even the most officer-protective doctrines have their
limits. Officer Smith had Butler arrested on extraordinarily serious
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4 Opinion of the Court 22-11141
felony charges based on conduct that, by any objective measure,
doesnât remotely qualify. And to make matters worse, the affida-
vits that Officer Smith submitted in support of her warrant applica-
tions conspicuously omitted material exculpatory information.
Viewing the evidence in the light most favorable to Butler, as we
must, we hold that Officer Smith is not entitled to qualified immun-
ity on Butlerâs Fourth Amendment claim and that Butler has pre-
sented a genuine factual dispute regarding Officer Smithâs entitle-
ment to official immunity on her state-law claim. We therefore
reverse the district courtâs grant of summary judgment.
I
A
In the fall of 2017, Kameron Butler was a single working
mother. Her 17-year-old son, Jayden, was starting his fourth year
at Rockdale County High School in central Georgia. Like so many
other parents and teens, Butler and Jayden had a strained relation-
ship.
When the family moved to a new apartment zoned for the
neighboring Salem High School, Butler gave Jayden a choice: He
could either transfer to Salem, in which case he could ride the bus
to and from school, or he could stay at Rockdale, but without the
benefit of bus service. Bus service mattered, Butler explained, be-
cause while she could drop Jayden off in the mornings, her work
schedule would prevent her from picking him up promptly after
school in the afternoons. So if Jayden opted to remain at Rockdale,
he could either (1) walk several miles home, (2) hang out in front
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22-11141 Opinion of the Court 5
of the school until early evening, when Butler could retrieve him,
or (3) go to a local park to wait for her. Given the choice, Jayden
decided to remain at Rockdale.
As expected, the afternoons proved challenging. None of
Jaydenâs after-school options was perfect. If he walked home, he
wouldnât be able to get into the familyâs apartment because Butler
had taken away his key after he had repeatedly skipped school and
had friends over; instead, he would have to sit either in the apart-
ment leasing office until it closed or underneath a shaded gazebo
on the complex property. Remaining on school grounds violated
school policy. Neither the school nor the park had vending ma-
chines, and the school lacked outdoor water fountainsâmeaning,
in either event, that Jayden would have to plan ahead to pack a
snack, water bottle, etc. Jaydenâs attempt to improvise a fourth
alternativeâgoing to the Brandon Glen apartments to hang out
with friendsâended after he repeatedly got in trouble there; Butler
flatly forbade him to go to Brandon Glen.
While at Rockdale, Jayden befriended the school resource
officersâlocal cops assigned to the high school. Jayden developed
a particularly close relationship with SRO Charlene Smith, with
whom he frequently ate lunch and discussed his activitiesâfor in-
stance, his participation on the schoolâs wrestling team, for which
he was trying to âdrop weight.â Officer Smith occasionally gave
Jayden money, got him a used bike, and, on a few occasions, drove
him home without logging her trip, as department policy required
officers to do when transporting minors.
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6 Opinion of the Court 22-11141
On September 26, 2017, Jayden went to Brandon Glen apart-
ments after school despite his motherâs clear prohibition. When
his mother refused to pick him up there, he chose to stay the night
rather than walk home. The following morning, Jayden com-
plained to Officer Smith, and the two of them called Butler to dis-
cuss his afternoon situation. Officer Smith recorded the call. Of-
ficer Smith told Butler that Jayden wasnât allowed to be on campus
unsupervised after school. In response, Butler explained her side
of the story: (1) She worked and thus couldnât pick Jayden up im-
mediately after school; (2) Jayden could walk home, but if he did,
he couldnât get into the apartment because she had taken his key
after he âskipp[ed] schoolâ and âha[d] people in the houseâ; (3) she
would rather her fiancĂŠ not pick Jayden up because âthere [was] a
lot more to this going onâ and because they had been having âseri-
ous behavior issues with Jayden since ninth gradeâ; but (4) Jayden
could always walk to âPine Log [Park],â and she would âpick him
up from there.â Butler also explained to Officer Smith why she had
prohibited Jayden to go to Brandon Glen apartments: âWeâve had
that discussion a million timesâheâs not allowed at Brandon Glen
because he gets in trouble when he goesâ there. â[B]ecause [Jayden
was] not allowedâ at the apartments, Butler continued, she would
ânot pick him up from thereââto which Office Smith responded:
âThat makes sense. If you told him not to go, and he goes, that
makes sense.â
During the call, Officer Smith told Butler that âthe whole
totality of things that [she was] doingâ constituted âcruelty to chil-
dren,â that âschool social workers [and] the police [were]
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22-11141 Opinion of the Court 7
involved,â and that Butler could face âcriminal charges.â Butler
responded by telling Officer Smith that she planned to âtransfer
[Jayden] to Salem.â The three concluded the call by planning for
that afternoon. Officer Smith reported that Jayden had said âhe
d[idnât] want to sit in the heatâ at the park, and when Butler asked
whether Jayden could âwalk home and just wait for [a family mem-
ber] to open the door,â Officer Smith said that he âd[idnât] want to
do that either.â When Butler admitted that she didnât âknow what
to tell himâ then, Officer Smith relayed Jaydenâs comment that
âheâll just walk.â
Rather than walk home that afternoon as he had said he
would, Jayden went the one place his mother had told him not to
go: Brandon Glen. In a call to his mother that he secretly recorded,
Jayden asked her to come pick him up. Butler refused, emphasizing
that Jayden knew that she had forbidden him to go to Brandon
Glen and that he had told her that he planned to walk home. Una-
ware that she was being recorded, and clearly frustrated, Butler
was unfiltered:
Jayden, I told you [that I would pick you up at] the
school or Pine Log [Park]. Thatâs what I told that
bitch, that OďŹcer Smith or whoever the fuck that
was. I said the school or Pine Log. And she said you
didnât want to go to either one, so you [were] gonna
walk home.
Holding her ground, Butler repeatedly told Jayden that she
wouldnât pick him up from Brandon Glen: âYou went back to
Brandon Glen. I made it perfectly clear to [Officer Smith] and you
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8 Opinion of the Court 22-11141
that I would not pick you up from Brandon Glen, that youâre not
allowed to go to Brandon Glen, and you do it anyway. And you
did it again.â Butler told Jayden that he should âjust go home.â
When Jayden asked if she would pick him up from Pine Log Park,
Butler respondedâseemingly in response to his disobedienceâ
âNo, Iâm not now, no.â Instead, she said, he could â[g]et [a] ride
from somebody over in Brandon Glen, call Officer Smith, call
somebody . . . who takes your pity party, call one of them to drop
you off at the house and I will be there soon.â
The call ended inauspiciously, with Butler recapping the
substance of their earlier conversation with Officer Smith and reit-
erating her refusal to pick Jayden up from Brandon Glen, and with
Jayden then signing off:
Butler: [OďŹcer Smith] asked you right then and
there. Where were you gonna go?
Were you gonna stay in the school or
were you gonna go to Pine Log? And
you told her that you didnât wanna do
either one because you didnât want to be
in the heat. So you told her to tell me
that you were walking home. Thatâs
where I thought you was gonna be at.
When I got home, you werenât there. I
have left out again. So you can get a ride
to the house, and Iâll let you in when I
get there. But Iâm not going to Brandon
Glen. I told her that, and I told you that.
I can go to Brandon Glen, but I wonât.
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22-11141 Opinion of the Court 9
Jayden: Alright, thatâs all I need you to say. Al-
right, bye.
Jayden did not walk home. Instead, he texted Officer Smith, who
picked him up and drove him.
The next morning, Jayden provided Officer Smith with the
recording of his call with his mother. Although she now denies it,
a colleagueâs notes reflect (perhaps not surprisingly) that Officer
Smith felt disrespected when she listened to the recording. Later
that same day, and after obtaining a statement from Jayden, Officer
Smith sought two arrest warrants, one each for first- and second-
degree child crueltyâboth felonies. The first-degree offense pre-
scribes a five-year mandatory-minimum sentence for âwillfully
depriv[ing a] child of necessary sustenance to the extent that the
childâs health or well-being is jeopardized.â Ga. Code Ann. § 16-5-
70(a). The second-degree offense prescribes a one-year mandatory
minimum for conduct that, âwith criminal negligence[,] causes a
child under the age of 18 cruel or excessive physical or mental
pain.â Id. § 16-5-70(c).
In support of the warrant applications, Officer Smith submit-
ted two short affidavits. With respect to first-degree child cruelty,
she alleged thatâ
Kameron Butler committed the oďŹence [sic] of cru-
elty to children when she refused to pick her son,
Jaylen [sic] Butler, up from school. Jaylen [sic] Butler
was told to stay in front of the school from 15:05-
19:00 hours. Kameron Butler allowed her boyfriend,
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10 Opinion of the Court 22-11141
Montrez, to pick up the little sister at C.J. Hick[s] at
approximately 14:30 hours. Montrez will not pick
Jaylen [sic] Butler up from school, but the schools are
across the street from each other. On 9/25 Jaylen [sic]
Butler took Uber home and had to sit outside until
9:00. 9/26 [Jayden] Butler had to go over to a friendsâs
[sic] house because his mother wouldnât pick him up.
Concerning second-degree child-cruelty, she added thatâ
Kameron Butler committed the oďŹense cruelty to
children in the second degree when she leaves her
son, Jayden Demille Butler up at Rockdale County
High School from 15:05 until approximately 19:00
hours without food or water, and to indure [sic] the
heat. Jayden Butler has a heart condition (irregular
heartbeat) and should not indure [sic] long periods
without food, water or heat.
Based on Officer Smithâs affidavitsâand with her oral clarification
that Jayden was 17 years oldâthe magistrate judge issued both
warrants.
That evening, Officer Smith texted Jayden and, when he
didnât respond within about ten minutes, asked a police unit to go
to his apartment to check on himâand informed the officers about
the outstanding warrants. Butler was arrested and charged with
both felonies. She spent four days in jail before she was eventually
released on bond. All charges against Butler were dismissed four
months later.
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22-11141 Opinion of the Court 11
B
Butler sued Officer Smith and the City of Conyers, alleging
malicious-prosecution claims under both federal and state law. Af-
ter the City was dismissed from the case, the district court granted
Officer Smith summary judgment on the ground that she had prob-
able cause to believe that Butler had engaged in both first- and sec-
ond-degree child cruelty. This is Butlerâs appeal.
II
We review a district courtâs grant of summary judgment de
novo. See Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir. 2021).
Importantly here, â[a]ll evidence and factual inferences are viewed
in the light most favorable to the non-moving party, and all reason-
able doubts about the facts are resolved in favor of the non-moving
party.â Id. With that standard firmly in mind, we will consider
Butlerâs federal- and state-law claims in turn.
A
The Supreme Court has recognized a Fourth Amendment
claim for malicious prosecution, which, it has explained, is âsome-
times referred to as a claim for unreasonable seizure pursuant to
legal process.â Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). Be-
cause the claim is a mashup of sorts, the plaintiff must prove both
â(1) the elements of the common-law tort of malicious prosecution
and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures.â Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir.
2018).
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â[T]he constituent elements of the common law tort of ma-
licious prosecution include[]: (1) a criminal prosecution instituted
or continued by the present defendant; (2) with malice and without
probable cause; (3) that terminated in the plaintiff accusedâs favor;
and (4) caused damage to the plaintiff accused.â Paez v. Mulvey, 915
F.3d 1276, 1285(11th Cir. 2019) (quoting Wood v. Kesler,323 F.3d 872, 882
(11th Cir. 2003)) (alteration in original). The Fourth
Amendment overlay adds two elements: The plaintiff must estab-
lish (5) âthat the legal process justifying [her] seizure was constitu-
tionally infirmâ and (6) âthat [her] seizure would not otherwise be
justified without legal process.â Williams v. Aguirre, 965 F.3d 1147,
1165 (11th Cir. 2020). Qualified immunity, in effect, adds yet an-
other elementânamely, (7) that that the law was âclearly estab-
lished.â Id. at 1168.
We can make quick work of elements (1), (3), (4), and (6).
First, Officer Smith initiated the child-cruelty prosecutions by seek-
ing and obtaining the warrants. Third, the prosecution terminated
in Butlerâs favor when the charges against her were dismissed. See
Thompson, 142 S. Ct. at 1341. Fourth, the prosecution caused her
damage by landing her in jail for four days. And sixth, because But-
ler was detained for longer than 48 hours, her seizure would have
been âpresumptively unconstitutionalââand thus not otherwise
justifiedâif effectuated without legal process. Williams, 965 F.3d
at 1164 (citing County of Riverside v. McLaughlin, 500 U.S. 44, 57
(1991)).
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22-11141 Opinion of the Court 13
On the merits, so to speakâweâll return to qualified immun-
ity in due courseâthat leaves elements (2) and (5). Happily, this
Court recently explained that there is âsignificant overlapâ be-
tween a malicious-prosecution claimâs common-law and constitu-
tional components and, indeed, that what we have called the sec-
ond element effectively merges into the fifth. See Luke v. Gulley, 975
F.3d 1140, 1144 (11th Cir. 2020) (âIf a plaintiff establishes that a de-
fendant violated his Fourth Amendment right to be free from sei-
zures pursuant to legal process, he has also established that the de-
fendant instituted criminal process against him with malice and
without probable cause.â). Accordingly, we can focus here on ele-
ment (5)âwhether âthe legal process justifying [the plaintiffâs] sei-
zure was constitutionally infirm.â Williams, 965 F.3d at 1165.
A plaintiff can prove that the warrant used to arrest her was
âconstitutionally infirmâ by showing either that âthe officer who
applied for the warrant should have known that [her] application
failed to establish probable causeâ or that the officer âintentionally
or recklessly made misstatements or omissions necessary to sup-
port the warrant.â Id. at 1165 (citations omitted). For reasons ex-
plained in the next section, we concludeâdrawing all factual infer-
ences in Butlerâs favorâthat the affidavits Officer Smith filed in
support of her warrant applications omitted material exculpatory
information that, had it been disclosed, would have negated prob-
able cause.
Finally, a brief word about qualified immunity. For mali-
cious-prosecution claims, we ask whether the type of shortcoming
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14 Opinion of the Court 22-11141
in the warrant applicationâsuch as offering âa conclusory affidavit
that clearly is insufficient to establish probable cause,â Luke v. Gul-
ley, 50 F.4th 90, 97 (11th Cir. 2022) (quotation marks omitted), or
âknowingly or recklessly mak[ing] false statements in an arrest af-
fidavit . . . if such false statements were necessary to the probable
cause,â Laskar v. Hurd, 972 F.3d 1278, 1297 (11th Cir. 2020) (quota-
tion marks omitted)âwas âclearly established.â Here, it was and
is clearly established that intentionally or recklessly omitting mate-
rial information from a warrant affidavit violates the Fourth
Amendment. See Paez, 915 F.3d at 1287 (considering it clearly es-
tablished that a warrant affiant cannot omit known material facts). 1
1
Before jumping in, an important clarification regarding the
universe of information that a reviewing court may consider when
evaluating a Fourth Amendment malicious-prosecution claim:
1 We are unmoved by Officer Smithâs argument that recklessness isnât enough.
Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994), on which she relies, didnât hold
that reckless misstatements in (or omissions from) a warrant application donât
violate clearly established law. Rather, it merely held, on the facts before it,
that âa reasonable officer might not have known that he was acting recklessly,
rather than negligently, in asserting without investigationâ that police hadnât
received an exculpatory lab report when, unbeknownst to the officer, they
had. Id. at 1554 (explaining that to succeed on his malicious-prosecution claim,
the plaintiff âmust prove that a reasonable officer would have known that [the
officerâs] testimony was not just negligently false, but recklessly soâ). As we
have explained, and will recount, a jury could reasonably determine that Of-
ficer Smith actually, subjectively knew the facts that she omitted from her af-
fidavits and that her nondisclosure of those facts was, at the very least, reckless.
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22-11141 Opinion of the Court 15
Unlike with a false-arrest claim challenging a warrantless arrest,
probable cause in a malicious-prosecution claim challenging an ar-
rest pursuant to a warrant canât be shown by reference to infor-
mation in an officerâs investigative file or mind absent a ârecord . .
. that he submitted the file to or explained his thought processes to
the magistrate judge.â Luke, 50 F.4th at 96. Put another way, âan
otherwise insufficient affidavit cannot be rehabilitated [with] infor-
mation possessed by the [officer] when he sought the warrant but
not disclosed to the issuing magistrate.â Williams, 965 F.3d at 1162
(quoting Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971)) (altera-
tion in original). The reason for the distinction is that whereas âthe
lawfulness of a warrantless arrest turns on whether the arresting
officer had probable cause, the lawfulness of seizures pursuant to
legal process turns on the validity of the legal process itself.â Id.
(citations omitted). Accordingly, for purposes of assessing Butlerâs
malicious-prosecution claimâwhich challenges the legal processâ
we consider only (1) the information that was before the magis-
trate, either in Officer Smithâs formal affidavits or otherwise, minus
(2) any material misstatements that Officer Smith might have
made, plus (3) any material information that she omitted from her
affidavits. See Paez, 915 F.3d at 1287 (âOur only question, then, is
whether the affidavits still would have established probable cause .
. . if they had included the omitted information . . . .â). And of
course, given the summary-judgment posture, our assessment of
that limited universe of information must credit Butlerâs evidence
and draw factual inferences in her favor. See Tolan v. Cotton, 572
U.S. 650, 651 (2014) (vacating a grant of summary judgment and
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16 Opinion of the Court 22-11141
remanding for further proceedings because the Fifth Circuit âfailed
to adhere to the axiom that in ruling on a motion for summary
judgment, [t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favorâ) (internal quo-
tation marks omitted). 2
a
First, the summary-judgment record reveals only three
items before the magistrate judge: Officer Smithâs two written affi-
davits and her oral statement that Jayden was 17 years old. Recall
that Officer Smithâs affidavit in support of the first-degree child-cru-
elty charge alleged thatâ
Kameron Butler committed the oďŹence [sic] of cru-
elty to children when she refused to pick her son,
Jaylen [sic] Butler, up from school. Jaylen [sic] Butler
was told to stay in front of the school from 15:05-
19:00 hours. Kameron Butler allowed her boyfriend,
Montrez, to pick up the little sister at C.J. Hick[s] at
2 The district court and Officer Smithâs briefing before us impermissibly relied
on facts known to Officer Smith but not provided to the magistrate judge. See,
e.g., Br. of Appellee at 26â28. At oral argument, Officer Smith defended her
reliance on such facts based on what she characterized as a lack of record evi-
dence about what was, in fact, before the magistrate judge. See Oral Arg. at
22:30â22:43. But again, on summary judgment, we view the facts in the light
most favorable to Butler as the nonmovant. Accordingly, if there isnât undis-
puted evidence that an inculpatory fact was before the magistrate, then we
must assume that it wasnât. Cf. Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th
Cir. 2003) (explaining how to treat disputes about whether a misstatement was
before the magistrate judge).
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22-11141 Opinion of the Court 17
approximately 14:30 hours. Montrez will not pick
Jaylen [sic] Butler up from school, but the schools are
across the street from each other. On 9/25 Jaylen [sic]
Butler took Uber home and had to sit outside until
9:00. 9/26 [Jayden] Butler had to go over to a friendsâs
[sic] house because his mother wouldnât pick him up.
And her aďŹdavit concerning the second-degree charge
added thatâ
Kameron Butler committed the oďŹense cruelty to
children in the second degree when she leaves her
son, Jayden Demille Butler up at Rockdale County
High School from 15:05 until approximately 19:00
hours without food or water, and to indure [sic] the
heat. Jayden Butler has a heart condition (irregular
heartbeat) and should not indure [sic] long periods
without food, water or heat.
So, in determining whether the warrants that Officer Smith sought
and obtained were supported by probable cause, all of those facts
are fair game.3
3 We reject Butlerâs contention that we can consider the facts alleged in each
affidavit only with respect to âitsâ corresponding offense. The magistrate had
both affidavits before him, and he considered the warrant applications simul-
taneously. The parties agree that we can consider the verbal statement re-
garding Jaydenâs age in conjunction with both crimes, and it wouldnât make
sense to treat written statements any differently.
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18 Opinion of the Court 22-11141
b
We neednât subtract out any material misstatements in the
information that Officer Smith put before the magistrate judge be-
cause we conclude that there werenât any. Butler asserts that Of-
ficer Smithâs second affidavitâs statement that âJayden . . . has a
heart condition (irregular heartbeat)â was false, but she misunder-
stands the leeway that the Fourth Amendment gives law enforce-
ment officers to make reasonable mistakes. An officer who files an
affidavit in support of an arrest warrant need only have âa reason-
able belief in [the] veracityâ of the information that she provides,
regardless of whether it ultimately turns out to be true. Paez, 915
at 1286â87. So, for instance, an officer is â[g]enerally . . . entitled to
rely on a victimâs criminal complaint as support for probable
cause.â Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir. 1998). Alt-
hough there is on this record a genuine dispute about whether Jay-
den actually had a heart condition, it is undisputed (1) that Jayden
told Officer Smith that he had one and (2) that he had worn a heart
monitor. Those facts, we think, amply support the conclusion that
Officer Smith had âreason[ to] belie[ve] in [the] veracityâ of her
statement to that effect. Paez, 915 F.3d at 1286.
c
Material omissions are a different story. We find five such
omissionsâfive pieces of information that a jury could find Officer
Smith âknew about but intentionally or recklessly disregardedâ in
her affidavits. Id. at 1287. She learned about the first four on the
call with Butler; she had independent knowledge of the fifth. We
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22-11141 Opinion of the Court 19
discuss each omission in turn, but consider them, as we must, in
their totality. See District of Columbia v. Wesby, 138 S. Ct. 577, 588
(2018) (explaining that probable cause depends on the totality of
the circumstances, a standard that âprecludes . . . [a] divide-and-
conquer analysisâ).
First, Officer Smith knewâbut omitted from her affida-
vitsâthat Jayden had chosen, in full view of the transportation
challenges that it would present, to stay at Rockdale rather than
transfer to Salem. Indeed, as soon as Officer Smith suggested that
Jayden shouldnât have to âhang outâ at school or the park until But-
ler could get there to pick him up, Butler emphasized (1) that trans-
ferring to Salem would resolve all their issues but (2) that Jayden
had decided against it:
Unless he wants to transfer to Salem, then he can get
on the bus. But he wanted to be at Rockdale when
we moved, so, if he wants to transfer to Salem then
he can do that because thatâs in our district.
When Officer Smith shortly thereafter suggested that Butler was
engaged in criminal misconduct, Butler responded by placing Jay-
denâs choice front and center:
OďŹcer Smith: You know thatâs cruelty to chil-
dren? . . . [J]ust the whole totality
of things that youâre doing. You
wonât pick him up. [You l]eave
him up here for four hours.
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20 Opinion of the Court 22-11141
Butler: . . . I did that because he said he
wanted to be at Rockdale, he
wanted to graduate from there. If
he wants to go to Salem, then I
will transfer him over to Salem,
and he can catch the bus. But that
isnât at all cruelty to children.
Deprived of the knowledge that Jayden had chosen to remain at
Rockdale rather than transferring to the school for which he was
zoned, the magistrate judge couldnât accurately assess Butlerâs re-
sponsibility for Jaydenâs afternoon transportation challenges.
Second, Officer Smith knewâbut omitted from her affida-
vitsâthat Jayden had options other than remaining at school: He
could âwalk up to Pine Log [Park],â near the school, or âwalk
home.â
Third, Officer Smith knewâbut again omittedâthat Butler
said she had taken away Jaydenâs house key âbecause he had people
in the house, he was skipping class, going home, and doing what
he wants to do.â Denied that explanation, the magistrate judge
could well have been misled by the affidavitsâ statements that even
if Jayden walked home he would âha[ve] to sit outside until 9:00
[p.m].â
Fourth, while Officer Smithâs affidavits stated that Jayden
âhad to go over to a friend[âs] house because his mother wouldnât
pick him up,â she knew, but omitted, the fact that Jayden went to
the friendâsâat Brandon Glenâdespite his motherâs express
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22-11141 Opinion of the Court 21
prohibition. As already noted, Butler had explained her ruleâ
which Officer Smith agreed âma[de] senseââat length and in detail
during their call:
[I]f he goes to Brandon Glen [Apartments], then . . .
his friend . . . needs to drop him oďŹ. Weâve had that
discussion a million times. Heâs not allowed at Bran-
don Glen because he gets in trouble when he goes to
Brandon Glen. . . . [H]eâll call me at about 8, 9, 10
oâclock at night and say [his friend] canât drop him oďŹ,
you need to come get me. No. . . . I will not pick him
up from there. I can but I wonât. Because heâs not
allowed over there.
Fifth, Officer Smith knewâbut omittedâadditional facts
about Jaydenâs food consumption, facts that undermined (or at the
very least ameliorated) her affidavitsâ vague charge that Butler left
him âwithout food or water.â Officer Smith often ate lunch with
Jayden at school. During these lunches, Officer Smith observed
thatâin her own wordsâJayden was âalways trying to drop
weight [for wrestling], like he would eat salads sometimes.â4
2
â[A]n affidavitâs omissions may lead to an unreasonable and
unconstitutional warrant-based arrest if information that the
4 Butler contends that Officer Smith also omitted from her affidavits the facts
(1) that Jayden was not suffering any physical pain and (2) that Butler was a
tireless and devoted mother. See Br. of Appellant at 38. We conclude, though,
that based on what Jayden had told Officer Smith, she could reasonably (even
if mistakenly) have believed that those things werenât true. See supra at 18.
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22 Opinion of the Court 22-11141
affiant knew about but intentionally or recklessly disregarded ne-
gates a finding of probable cause.â Paez, 915 F.3d at 1287. Accord-
ingly, the question we must answer is âwhether [Officer Smithâs]
affidavits still would have established probable cause . . . if they had
included the omitted information.â Id.
Well, with one caveat. Because Officer Smithâs assertion of
qualified immunity can be defeated only by a showing of âclearly
establishedâ law, we will review not for actual probable cause but
rather for ââarguableâ probable cause.â Grider v. City of Auburn, 618
F.3d 1240, 1257 & n.25 (11th Cir. 2010). The arguable-probable-
cause standard asks whether a âreasonable officer[] in the same cir-
cumstances and possessing the same knowledge as the Defendant[]
could have believed that probable cause existed.â Kingsland v. City
of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). It protects officers
who âreasonably but mistakenly conclude that probable cause is
present.â Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003)
(quotations marks omitted). Probable cause, in turn, exists when
âa reasonable officer could conclude . . . that there was a substantial
chance of criminal activity.â Washington v. Howard, 25 F.4th 891,
899 (11th Cir. 2022) (emphasis and citation omitted) (omission in
original).
To assess probable cause, we look to the elements of the un-
derlying crimeâand in particular, in a malicious-prosecution case
like this one, to the elements of the charged crime. See Williams, 965
F.3d at 1159â62 (holding that the so-called âany crimeâ ruleâ
which applies to false-arrest claims arising out of warrantless
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22-11141 Opinion of the Court 23
seizures and holds that it is enough for the arresting officer to have
probable cause to believe that any crime has been committedâ
doesnât apply to a malicious-prosecution claim arising out of an ar-
rest made pursuant to a warrant). While an officer neednât prove
every element of the charged crime, see Jordan v. Mosley, 487 F.3d
1350, 1355 (11th Cir. 2007), her knowledge that an element isnât
metâor is exceedingly unlikely to be metâwill preclude a finding
of probable cause, see Holmes, 321 F.3d at 1081; Thornton v. City of
Macon, 132 F.3d 1395, 1399 (11th Cir. 1998).
With that primer, we turn our attention to the controlling
question: Given the (1) information that Officer Smith included in
her affidavits and (2) the material information that she knew but
omitted from those affidavits, could a reasonable officer have be-
lieved that probable cause existed to arrest Butler for first- or sec-
ond-degree child cruelty? For the reasons that follow, we hold that
the answer is no.
a
Georgia law criminalizes first-degree child cruelty, a felony,
as follows:
A parent, guardian, or other person supervising the
welfare of or having immediate charge or custody of
a child under the age of 18 commits the oďŹense of
cruelty to children in the ďŹrst degree when such per-
son willfully deprives the child of necessary suste-
nance to the extent that the childâs health or well-be-
ing is jeopardized.
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24 Opinion of the Court 22-11141
Ga. Code Ann. § 16-5-70(a). The crime thus entails both what weâll
call an âactâ elementââwillfully depriv[ing] the child of necessary
sustenanceââand a âresultâ elementââto the extent that the
childâs health or well-being is jeopardized.â With respect to the
latter, Georgia courts have held that the phrase ânecessary suste-
nanceâ refers to âthat necessary food and drink which is sufficient
to support life and maintain health.â Sanders v. State, 715 S.E.2d
124, 127(Ga. 2011) (citing Caby v. State,287 S.E.2d 200
(Ga. 1982));
Justice v. State, 42 S.E. 1013, 1014 (Ga. 1902) (same). Reflecting the
seriousness of the offense, first-degree child cruelty is punishable
by a minimum of five and a maximum of 20 years in prison. Ga.
Code Ann. § 16-5-70(e)(1).
Based on the relevant facts, no reasonable officer could be-
lieve that probable cause existed to arrest Butler for first-degree
child cruelty. Butlerâs conductâboth known and reasonably sus-
pectedâmet neither the offenseâs act element nor its result ele-
ment.
First, the act. A jury could rationally conclude that no rea-
sonable officer could have believed that Butler âwillfully de-
prive[d]â Jayden of anything, let alone the required ânecessary sus-
tenance.â Remember, Butler gave Jayden a choice: Transfer to
Salem and enjoy the benefits of bus service or remain at Rockdale
with its attendant afternoon challenges. So, to the extent that Jay-
den was âdeprive[d]â of a ride home, a jury could find it was a dep-
rivation of his own making. There is also a question of fact as to
whether Butler âwillfully deprive[d]â Jayden of afternoon food or
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22-11141 Opinion of the Court 25
water. Viewing the evidence in the light most favorable to her,
Butler at worstâat worstâfailed to pack Jayden an afternoon snack
and water bottle. But Jayden was a 17-year-old young man, not a
small child. While Georgia courts have held that a parent can com-
mit child cruelty by failing to feed a helpless infant, see, e.g., Brown
v. State, 777 S.E.2d 466, 468 (Ga. 2015), the cases involving older
children feature parents who actively prevent children from feed-
ing themselves, see, e.g., Nazario v. State, 746 S.E.2d 109, 118 (Ga.
2013) (parent âbound and gagged the child, forced her into a bed-
room closet, and dragged a dresser in front of the door so she could
not escapeâ); Franklin v. State, 831 S.E.2d 186, 190â91 (Ga. 2019)
(adoptive parents confined 15-year-old to a padlocked outhouse,
chicken coop, or locked closet without food or water for as long as
seven days).
Second, the result. Again, resolving all reasonable factual
doubts in Butlerâs favor, a jury could rationally conclude that no
reasonable officer could have found probable cause to believe that
Jayden lacked ânecessary sustenanceââas the Georgia courts have
interpreted that phrase, âth[e] necessary food and drink which is
sufficient to support life and maintain health.â Sanders, 715 S.E.2d
at 127. As an initial matter, it would be unreasonable to think that
Jayden actually lacked food or water. Again, Jayden was 17 years
oldâand thus perfectly capable of packing himself a snack and fill-
ing up a water bottle. Moreover, even assuming that Jayden went
without food and water during a four-hour window in the after-
noons, there is no reason to think that so short a period left him
without the necessaries to âsupport life or maintain health.â
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26 Opinion of the Court 22-11141
Finally, and relatedly, Officer Smithâs frequent lunches with Jay-
den, and their conversations about his ongoing attempts to âdrop
weightâ for wrestling, suggested that he had more food than he
needed. 5
Viewing these facts in the light most favorable to Butler as
the non-moving party, this is not a close case. Based on the rele-
vant information, a jury could reasonably find facts that would lead
a reviewing court to conclude that Smith lacked even arguable
probable cause to believe that Butler had committed first-degree
child cruelty. 6
5 None of Officer Smithâs counterarguments move the needle. See Br. of Ap-
pellee at 25â28. First, even if Officer Smith claimed to believe that Jayden was
missing meals, nothing before the magistrate judge remotely suggested as
much. Second, Officer Smithâs reliance on Jaydenâs supposed heart condition
is misplaced; in order to avoid rendering the first-degree child-cruelty statute
unconstitutionally vague, Georgia courts have routinely rejected reliance on
health risks other than malnourishment and dehydration. See, e.g., State v.
Lawrence, 425 S.E.2d 280, 280â81 (Ga. 1993) (rejecting a theory based on de-
priving a child of oxygen). Finally, even if denying Jayden a house key could
be deemed a âdepriv[ation],â it certainly wasnât a willful oneâit was merely a
concerned motherâs reasonable attempt to break her sonâs bad habitâabout
which Officer Smith knew but failed to disclose in her affidavitsâof skipping
school to hang out with friends.
6 Of course, Smith can raise qualified immunity at trial, urge the jury to view
the record as she has framed it, seek special interrogatories to resolve the his-
torical facts underlying her immunity argument, and then resubmit the issue
to the district court for decision. See e.g., Simmons v. Bradshaw, 879 F.3d 1157,
1164â65 (11th Cir. 2018) (âWhere the defendantâs pretrial motions are denied
because there are genuine issues of fact that are determinative of the qualified
immunity issue, special interrogatories may be used to resolve those factual
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22-11141 Opinion of the Court 27
b
The magistrate judge also issued an arrest warrant for felony
second-degree child cruelty:
Any person commits the oďŹense of cruelty to chil-
dren in the second degree when such person with
criminal negligence causes a child under the age of 18
cruel or excessive physical or mental pain.
Ga. Code Ann. § 16-5-70(c). Criminal negligence is defined as âan
act or failure to act which demonstrates a willful, wanton, or reck-
less disregard for the safety of others who might reasonably be ex-
pected to be injured thereby.â Id. § 16-2-1(b).
Based on the relevant information, viewed in the light most
favorable to Butler, no reasonable officer could have thought that
there was probable cause to believe Butler had either (1) commit-
ted the required act or (2) brought about the required result. As to
the act, Butler didnât herself âcauseâ Jayden any pain. To the con-
trary, she accommodated Jaydenâs choice to remain at Rockdale.
That choice entailed difficulties, to be sure, but they canâtâat least
at summary judgmentâbe laid at Butlerâs feet. So too with respect
to the resultââcruel or excessive physical or mental pain.â In cases
issues. . . . We do not mean to imply, of course, that district courts should
submit the issue of whether a defendant is entitled to qualified immunity to
the jury. Qualified immunity is a legal issue to be decided by the court, and
the jury interrogatories should not even mention the term. Instead, the jury
interrogatories should be restricted to the who-what-when-where-why type
of historical fact issues.â).
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28 Opinion of the Court 22-11141
arising under Ga. Code Ann. § 16-5-70(b), which likewise prohibits
causing a child âcruel or excessive physical or mental painââthere,
doing so âmaliciouslyââGeorgia courts have interpreted what
they have called the âpain elementâ to turn on factors such as âa
childâs age, the extent of injuries, the nature of the assault to which
the child was subjected, and the force with which the child was
struck.â Moore v. State, 656 S.E.2d 796, 799 (Ga. 2008). None of
those considerations even remotely suggests criminal liability in
this case, and the first twoâwhich apply equally to a âcriminal[]
negligen[ce]â case under § 16-5-70(c)âaffirmatively counsel
against it: Jayden was a 17-year-old young man, and he suffered no
discernible injuries. 7
Again, given the particular facts before us, we donât think
the question is particularly close: A jury could reasonably make
findings that would lead a reviewing court to conclude that Officer
Smith lacked even arguable probable cause to believe that Butler
had committed second-degree child cruelty.
7 To close the loop, any inference of criminally negligent infliction of âcruel or
excessiveâ pain that might have arisen from the affidavitsâ misleading sugges-
tions (1) that Jayden was once abandoned for a night and forced to stay with a
friend and (2) that Butler forced Jayden to sit in a particular, exposed spot out-
side the school building to wait on her completely evaporate upon considera-
tion of the material information that Officer Smith knew but failed to disclose.
First, Butlerâs refusal to retrieve Jayden at his friendâs followed straightaway
from her policyâwith which Officer Smith agreedâthat she wouldnât pick
him up from Brandon Glen; and second, Jayden in fact had several afternoon
optionsâwalk home, go to Pine Log Park, etc.
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22-11141 Opinion of the Court 29
* * *
To recap our conclusion regarding Butlerâs Fourth Amend-
ment malicious-prosecution claim: Applying the summary-judg-
ment standard, we hold that, taken together, (1) the facts that Of-
ficer Smith included in the affidavits that she filed in support of the
arrest warrants and (2) the material facts that she knew but omitted
from those affidavits do not support even arguable probable cause
to believe that Butler committed first- or second-degree child cru-
elty under Georgia law. Accordingly, we hold that Officer Smith is
not entitled to qualified immunity, and we reverse the district
courtâs grant of summary judgment on Butlerâs Fourth Amend-
ment claim.
B
We can make relatively quick work of Butlerâs state-law ma-
licious-prosecution claim. Georgia law provides a cause of action
for â[a] criminal prosecution which is carried on maliciously and
without any probable cause and which causes damage to the per-
son prosecuted.â Ga. Code Ann. § 51-7-40. The state-law claimâs
elements mirror the common-law portion of the federal claim, al-
ready discussed. See Simpson v. State, 715 S.E.2d 142, 145 (Ga. 2011)
(noting that the state and federal probable-cause standards are sub-
stantially similar). Our explanation that the tortâs constituent ele-
ments are satisfied applies equally to Butlerâs state-law claim. See
supra at 11â21. And our determination that Officer Smith lacked
even arguable probable necessarily means that she lacked actual
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30 Opinion of the Court 22-11141
probable cause. See supra at 21â29. That leaves only the issue of
immunity.
Official immunity under Georgia law works a little differ-
ently from qualified immunity. Officials performing discretionary
functions have immunity from personal liability unless âthey act
with actual malice or with actual intent to cause injury.â Ga.
Const. art. I, § 2, Âś IX(d). Malice, here, is a âdeliberate intention to
do wrong.â Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999).
Evidence of âfrustration, irritation, and possibly even angerâ or
âproof of ill willâ are insufficient, but ill will is enough when âcom-
bined with the intent to do something wrongful or illegal.â Selvy v.
Morrison, 665 S.E.2d 401, 406 (Ga. Ct. App. 2008).
We hold that Butler has presented a genuine dispute about
whether Officer Smith acted with âmalice.â Viewing the evidence
in the light most favorable to Butler, Officer Smith had a close re-
lationship with Jayden (she ate lunch with him, gave him money
and a used bike), she felt disrespected at being called a âbitchâ by
Butler, she sought the arrest warrants very soon thereafter, seem-
ingly without substantial additional investigation, and she inexpli-
cably omitted material exculpatory information from her affidavits.
Collectively, those facts give rise to a reasonable inference that Of-
ficer Smith didnât just make a mistake, but rather âknew that [But-
ler] had not committed the crimesâ and harbored âill willâ and
âpersonal animusâ against her. Wilson v. Cromer, 847 S.E.2d 213,
217 (Ga. Ct. App. 2020).
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22-11141 Opinion of the Court 31
III
For the foregoing reasons, we REVERSE the grant of sum-
mary judgment on both claims and REMAND for further proceed-
ings.
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22-11141 ED CARNES, J., Concurring 1
ED CARNES, Circuit Judge, concurring:
The Courtâs opinion addresses whether an oďŹcerâs inten-
tional or reckless failure to include in his aďŹdavit, or otherwise dis-
close to a magistrate judge, known exculpatory evidence renders
an arrest warrant constitutionally inďŹrm. It does, the Court holds,
if the omitted evidence is material, meaning that âhad it been dis-
closed, [it] would have negated probable cause.â Maj. Op. at 13. I
agree with that holding, insofar as it goes, and join the opinion be-
cause it does not purport to hold that in making the materiality
analysis a court shouldnât also consider undisclosed inculpatory ev-
idence.
Deciding this case does not require us to address that issue,
but some of our sister circuits have done so. The Second Circuit
has held that when determining whether undisclosed exculpatory
evidence renders an arrest warrant constitutionally inďŹrm, a court
should examine âall of the information the oďŹcers possessed when
they applied for the arrest warrant.â Escalera v. Lunn, 361 F.3d 737,
744(2d Cir. 2004) (emphasis added);id.
at 744â45 (The question is
whether, âif [the aďŹant] had included all she learned from her in-
vestigation, the application would have supported a reasonable . . .
belief that probable cause existed.â) (alteration adopted) (emphasis
added) (quotation marks omitted); see also Ganek v. Leibowitz, 874
F.3d 73, 85 n.6 (2d Cir. 2017) (âPrecedent instructs that, in applying
the corrected aďŹdavit doctrine, a court properly examines all of
the information the oďŹcers possessed when they applied for the
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2 ED CARNES, J., Concurring 22-11141
search warrant.â) (alteration adopted) (emphasis added) (quotation
marks omitted).
The Fifth Circuit agrees. In Loftin v. City of Prentiss, 33 F.4th
774, 782 (5th Cir. 2022), the plaintiďŹ complained that the oďŹcer
omitted material information from his aďŹdavit in support of an
arrest warrant. In the course of addressing that claim, the Fifth
Circuit decided that the materiality of omitted exculpatory evi-
dence requires considering any omitted inculpatory evidence as
well. Id. at 782â83. It explained that is the proper approach because
âa complete aďŹdavitâ would have included both the allegedly ex-
culpatory information that was omitted as well as âother infor-
mation that police gatheredâ that would have âonly strengthen[ed]
the already solid basis for probable cause.â Id. at 782. In the Loftin
case, consideration of the inculpatory omissions along with the ex-
culpatory ones netted out to the conclusion that the omissions
were not material; they did not render the warrant constitutionally
inďŹrm. Id.at 782â83; see also Dempsey v. Bucknell Univ.,834 F.3d 457, 474
(3d Cir. 2016) (âIn the normal course, the next step of our anal-
ysis would be to reconstruct the aďŹdavit, including the recklessly
omitted [exculpatory] information, so that we may proceed with a
materiality analysis. In some cases, however, there will be other
information in the record that gives context to or aďŹects the weight
to be accorded the recklessly omitted information, such that it also
should be considered by the reviewing court in determining mate-
riality.â).