KAMERON BUTLER, Plaintiff-Appellant, versus CHARLENE SMITH, individually, Defendant-Appellee, CITY OF CONYERS, GEORGIA, Defendant.
No. 22-11141
United States Court of Appeals For the Eleventh Circuit
October 27, 2023
[PUBLISH]
Opinion of the Court
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, sacrifice, and tenderness. It also requires tough choices. And sometimes it requires tough love. Even the most well-intentioned parents 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 he had been for three years, in which case, due to her work schedule, they would have to get creative about his afternoons. If he opted to stay, she said, Jayden could either walk several miles home or spend the afternoons at school or at a local park until she could pick him up. Given the choice, Jayden opted to stay at the school he knew.
We will get into the details soon enough, but in short, a school resource officer, Charlene Smith, took issue with Butler’s plan for managing Jayden’s afternoons
Butler sued Officer Smith for malicious prosecution under both federal and state law. The
But even the most officer-protective doctrines have their limits. Officer Smith had Butler arrested on extraordinarily serious felony charges based on conduct that, by any objective measure, doesn’t remotely qualify. And to make matters worse, the affidavits that Officer Smith submitted in support of her warrant applications 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 immunity on Butler’s
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 relationship.
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, because 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 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 Jayden’s after-school options was perfect. If he walked home, he wouldn’t be able to get into the family’s 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 apartment 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 machines, and the school
While at Rockdale, Jayden befriended the school resource officers—local 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 activities—for instance, his participation on the school’s wrestling team, for which he was trying to “drop weight.” 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.
On September 26, 2017, Jayden went to Brandon Glen apartments after school despite his mother’s 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 complained to Officer Smith, and the two of them called Butler to discuss his afternoon situation. Officer Smith recorded the call. Officer Smith told Butler that Jayden wasn’t allowed to be on campus unsupervised after school. In response, Butler explained her side of the story: (1) She worked and thus couldn’t pick Jayden up immediately after school; (2) Jayden could walk home, but if he did, he couldn’t get into the apartment because she had taken his key after he “skipp[ed] school” and “ha[d] people in the house“; (3) she would rather her fiancé not pick Jayden up because “there [was] a lot more to this going on” and because they had been having “serious behavior issues with Jayden since ninth grade“; but (4) Jayden could always walk to “Pine Log [Park],” and she would “pick him up from there.” Butler also explained to Officer Smith why she had prohibited Jayden to go to Brandon Glen apartments: “We’ve had that discussion a million times—he’s not allowed at Brandon Glen because he gets in trouble when he goes” there. “[B]ecause [Jayden was] not allowed” at the apartments, Butler continued, she would “not pick him up from there“—to which Office Smith responded: “That makes sense. If you told him not to go, and he goes, that makes sense.”
During the call, Officer Smith told Butler that “the whole totality of things that [she was] doing” constituted “cruelty to children,” that “school social workers [and] the police [were] involved,” and that Butler could face “criminal charges.” Butler responded by telling Officer Smith that she planned to “transfer [Jayden] to Salem.” The three concluded the call by planning for that afternoon. Officer Smith reported that Jayden had said “he d[idn’t] want to sit in the heat” at the park, and when Butler asked whether Jayden could “walk home and just wait for [a family member] to open the door,” Officer Smith said that he “d[idn’t] want to do that either.” When Butler admitted that she didn’t “know what to tell him” then, Officer Smith relayed Jayden’s comment that “he’ll just walk.”
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. Unaware 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]. That’s what I told that bitch, that Officer Smith or whoever the fuck that was. I said the school or Pine Log. And she said you didn’t want to go to either one, so you [were] gonna walk home.
Holding her ground, Butler repeatedly told Jayden that she wouldn’t pick him up from Brandon Glen: “You went back to Brandon Glen. I made it perfectly clear to [Officer Smith] and you that I would not pick you up from Brandon Glen, that you’re not allowed to go to Brandon Glen, and you do it anyway. And you did it again.” Butler told Jayden that he should “just go home.” When Jayden asked if she would pick him up from Pine Log Park, Butler responded—seemingly in response to his disobedience—“No, I’m not now, no.” Instead, she said, he could “[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.”
The call ended inauspiciously, with Butler recapping the substance of their earlier conversation with Officer Smith and reiterating her refusal to pick Jayden up from Brandon Glen, and with Jayden then signing off:
Butler: [Officer 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 didn’t wanna do either one because you didn’t want to be in the heat. So you told her to tell me that you were walking home. That’s where I thought you was gonna be at. When I got home, you weren’t there. I have left out again. So you can get a ride to the house, and I’ll let you in when I get there. But I’m not going to Brandon Glen. I told her that, and I told you that. I can go to Brandon Glen, but I won’t.
Jayden: Alright, that’s all I need you to say. Alright, 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 colleague’s 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 cruelty—both felonies. The first-degree offense prescribes a five-year mandatory-minimum sentence for “willfully depriv[ing a] child of necessary sustenance to the extent that the child’s health or well-being is jeopardized.”
In support of the warrant applications, Officer Smith submitted two short affidavits. With respect to first-degree child cruelty, she alleged that—
Kameron Butler committed the offence [sic] of cruelty 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 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 friends’s [sic] house because his mother wouldn’t pick him up.
Concerning second-degree child-cruelty, she added that—
Kameron Butler committed the offense 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 Smith’s affidavits—and with her oral clarification that Jayden was 17 years old—the magistrate judge issued both warrants.
That evening, Officer Smith texted Jayden and, when he didn’t respond within about ten minutes, asked a police unit to go to his apartment to check on him—and 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.
B
Butler sued Officer Smith and the City of Conyers, alleging malicious-prosecution claims under both federal and state law. After the City was dismissed from the case, the district court granted Officer Smith summary judgment on the ground that she had probable cause to believe that Butler had engaged in both first- and second-degree child cruelty. This is Butler’s appeal.
II
We review a district court’s grant of summary judgment de novo. See Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir. 2021). Importantly here, “[a]ll evidence and factual inferences are viewed in the light most favorable to the non-moving party, and all reasonable doubts about the facts are resolved in favor of the non-moving party.” Id. With that standard firmly in mind, we will consider Butler’s federal- and state-law claims in turn.
A
The Supreme Court has recognized a
“[T]he constituent elements of the common law tort of malicious 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 accused’s favor; and (4) caused damage to the plaintiff accused.” 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
We can make quick work of elements (1), (3), (4), and (6). First, Officer Smith initiated the child-cruelty prosecutions by seeking and obtaining the warrants. Third, the prosecution terminated in Butler’s 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 Butler was detained for longer than 48 hours, her seizure would have been “presumptively unconstitutional“—and thus not otherwise justified—if effectuated without legal process. Williams, 965 F.3d at 1164 (citing County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991)).
On the merits, so to speak—we will return to qualified immunity in due course—that leaves elements (2) and (5). Happily, this Court recently explained that there is “significant overlap” between a malicious-prosecution claim’s common-law and constitutional components and, indeed, that what we have called the second element effectively merges into the fifth. See Luke v. Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020) (“If a plaintiff establishes that a defendant violated his
A plaintiff can prove that the warrant used to arrest her was “constitutionally infirm” by showing either that “the officer who applied for the warrant should have known that [her] application failed to establish probable cause” or that the officer “intentionally or recklessly made misstatements or omissions necessary to support the warrant.” Id. at 1165 (citations omitted). For reasons explained in the next section, we conclude—drawing all factual inferences in Butler’s favor—that the affidavits Officer Smith filed in support of her warrant applications omitted material exculpatory information that, had it been disclosed, would have negated probable cause.
Finally, a brief word about qualified immunity. For malicious-prosecution claims, we ask whether the type of shortcoming in the warrant application—such as offering “a conclusory affidavit that clearly is insufficient to establish probable cause,” Luke v. Gulley, 50 F.4th 90, 97 (11th Cir. 2022) (quotation marks omitted), or “knowingly or recklessly mak[ing] false statements in an arrest affidavit . . . if such false statements were necessary to the probable cause,” Laskar v. Hurd, 972 F.3d 1278, 1297 (11th Cir. 2020) (quotation marks omitted)—was “clearly established.” Here, it was and is clearly established that intentionally or recklessly omitting material information from a warrant affidavit violates the
Before jumping in, an important clarification regarding the universe of information that a reviewing court may consider when evaluating a
a
First, the summary-judgment record reveals only three items before the
Kameron Butler committed the offence [sic] of cruelty 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 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 friends’s [sic] house because his mother wouldn’t pick him up.
And her affidavit concerning the second-degree charge added that—
Kameron Butler committed the offense 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
b
We needn’t subtract out any material misstatements in the information that Officer Smith put before the magistrate judge because we conclude that there weren’t any. Butler asserts that Officer Smith’s second affidavit’s statement that “Jayden . . . has a heart condition (irregular heartbeat)” was false, but she misunderstands the leeway that the
c
Material omissions are a different story. We find five such omissions—five pieces of information that a jury could find Officer Smith “knew about but intentionally or recklessly disregarded” 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 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 “precludes . . . [a] divide-and-conquer analysis“).
First, Officer Smith knew—but omitted from her affidavits—that 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 shouldn’t have to “hang out” at school or the park until Butler could get there to pick him up, Butler emphasized (1) that transferring 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 that’s in our district.
When Officer Smith shortly thereafter suggested that Butler was engaged in criminal misconduct, Butler responded by placing Jayden’s choice front and center:
Officer Smith: You know that’s cruelty to children? . . . [J]ust the whole totality of things that you’re doing. You won’t pick him up. [You l]eave him up here for four hours.
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 isn’t 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 couldn’t accurately assess Butler’s responsibility for Jayden’s afternoon transportation challenges.
Second, Officer Smith knew—but omitted from her affidavits—that Jayden had options other than remaining at school: He could “walk up to Pine Log [Park],” near the school, or “walk home.”
Third, Officer Smith knew—but again omitted—that Butler said she had taken away Jayden’s house key “because he had people in the house, he was skipping class, going home, and doing what he wants to do.” Denied that explanation, the magistrate judge could well have been misled by the affidavits’ statements that even if Jayden walked home he would “ha[ve] to sit outside until 9:00 [p.m].”
Fourth, while Officer Smith’s affidavits stated that Jayden “had to go over to a friend[’s] house because his mother wouldn’t pick him up,” she knew, but omitted, the fact that Jayden went to the friend’s—at Brandon Glen—despite his mother’s express
prohibition. As already noted, Butler had explained her rule—which Officer Smith agreed “ma[de] sense”—at length and in detail during their call:
[I]f he goes to Brandon Glen [Apartments], then . . . his friend . . . needs to drop him off. We’ve had that discussion a million times. He’s not allowed at Brandon Glen because he gets in trouble when he goes to Brandon Glen. . . . [H]e’ll call me at about 8, 9, 10 o’clock at night and say [his friend] can’t drop him off, you need to come get me. No. . . . I will not pick him up from there. I can but I won’t. Because he’s not allowed over there.
Fifth, Officer Smith knew—but omitted—additional facts about Jayden’s food consumption, facts that undermined (or at the very least ameliorated) her affidavits’ vague charge that Butler left him “without food or water.” Officer Smith often ate lunch with Jayden at school. During these
2
“[A]n affidavit’s omissions may lead to an unreasonable and unconstitutional warrant-based arrest if information that the affiant knew about but intentionally or recklessly disregarded negates a finding of probable cause.” Paez, 915 F.3d at 1287. Accordingly, the question we must answer is “whether [Officer Smith’s] affidavits still would have established probable cause . . . if they had included the omitted information.” Id.
Well, with one caveat. Because Officer Smith’s assertion of qualified immunity can be defeated only by a showing of “clearly established” law, we will review not for actual probable cause but rather for “‘arguable’ probable cause.” Grider v. City of Auburn, 618 F.3d 1240, 1257 & n.25 (11th Cir. 2010). The arguable-probable-cause standard asks whether a “reasonable officer[] in the same circumstances and possessing the same knowledge as the Defendant[] could have believed that probable cause existed.” Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). It protects officers who “reasonably but mistakenly conclude that probable cause is present.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003) (quotations marks omitted). Probable cause, in turn, exists when “a reasonable officer could conclude . . . that there was a substantial chance of criminal activity.” 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 underlying crime—and in particular, in a malicious-prosecution case like this one, to the elements of the charged crime. See Williams, 965 F.3d at 1159–62 (holding that the so-called “any crime” rule—which applies to false-arrest claims arising out of warrantless seizures and holds that it is enough for the arresting officer to have probable cause to believe that any crime has been committed—doesn’t apply to a malicious-prosecution claim arising out of an arrest made pursuant to a warrant). While an officer needn’t prove every element of the charged crime, see Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007), her knowledge that an element isn’t met—or is exceedingly unlikely to be met—will 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 believed that probable cause existed to arrest Butler for first- or second-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 offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized.
Based on the relevant facts, no reasonable officer could believe that probable cause existed to arrest Butler for first-degree child cruelty. Butler’s conduct—both known and reasonably suspected—met neither the offense’s act element nor its result element.
First, the act. A jury could rationally conclude that no reasonable officer could have believed that Butler “willfully deprive[d]” Jayden of anything, let alone the required “necessary sustenance.” 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 Jayden was “deprive[d]” of a ride home, a jury could find it was a deprivation of his own making. There is also a question of fact as to whether Butler “willfully deprive[d]” Jayden of afternoon food or water. Viewing the evidence in the light most favorable to her, Butler at worst—at worst—failed 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 commit 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 feeding themselves, see, e.g., Nazario v. State, 746 S.E.2d 109, 118 (Ga. 2013) (parent “bound and gagged the child, forced her into a bedroom closet, and dragged a dresser in front of the door so she could not escape”); Franklin v. State, 831 S.E.2d 186, 190–91 (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 Butler’s favor, a jury could rationally conclude that no reasonable officer could have found probable cause to believe that Jayden lacked “necessary sustenance”—as the Georgia courts have interpreted that phrase, “th[e] necessary food and drink which is sufficient to support life and maintain health.” 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 old—and thus perfectly capable of packing himself a snack and filling up a water bottle. Moreover, even assuming that Jayden went without food and water during a four-hour window in the afternoons, there is no reason to think that so short a period
Finally, and relatedly, Officer Smith’s frequent lunches with Jayden, and their conversations about his ongoing attempts to “drop weight” 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 relevant 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
b
The magistrate judge also issued an arrest warrant for felony second-degree child cruelty:
Any person commits the offense of cruelty to children 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.
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) committed the required act or (2) brought about the required result. As to the act, Butler didn’t herself “cause” Jayden any pain. To the contrary, she accommodated Jayden’s choice to remain at Rockdale. That choice entailed difficulties, to be sure, but they can’t—at least at summary judgment—be laid at Butler’s feet. So too with respect to the result—“cruel or excessive physical or mental pain.” In cases arising under
Again, given the particular facts before us, we don’t 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.
* * *
To recap our conclusion regarding Butler’s Fourth Amendment malicious-prosecution claim: Applying the summary-judgment standard, we hold that, taken together, (1) the facts that Officer 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 cruelty under Georgia law. Accordingly, we hold that Officer Smith is not entitled to qualified immunity, and we reverse the district court’s grant of summary judgment on Butler’s Fourth Amendment claim.
B
We can make relatively quick work of Butler’s state-law malicious-prosecution claim. Georgia law provides a cause of action for “[a] criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted.”
Official immunity under Georgia law works a little differently from qualified immunity. Officials performing discretionary functions have immunity from personal liability unless “they act with actual malice or with actual intent to cause injury.”
We hold that Butler has presented a genuine dispute about whether Officer Smith acted with “malice.” Viewing the evidence in the light most favorable to Butler, Officer Smith had a close relationship with Jayden (she ate lunch with him, gave him money and a used bike), she felt disrespected at being called a “bitch” by Butler, she sought the arrest warrants very soon thereafter, seemingly without substantial additional investigation, and she inexplicably omitted material exculpatory information from her affidavits. Collectively, those facts give rise to a reasonable inference that Officer Smith didn’t just make a mistake, but rather “knew that [Butler] had not committed the crimes” and harbored “ill will” and “personal animus” against her. Wilson v. Cromer, 847 S.E.2d 213, 217 (Ga. Ct. App. 2020).
III
For the foregoing reasons, we REVERSE the grant of summary judgment on both claims and REMAND for further proceedings.
ED CARNES, Circuit Judge, concurring:
The Court’s opinion addresses whether an officer’s intentional or reckless failure to include in his affidavit, or otherwise disclose to a magistrate judge, known exculpatory evidence renders an arrest warrant constitutionally infirm. It does, the Court holds, if the omitted evidence is material, meaning that “had it been disclosed, [it] would have negated probable cause.” Maj. Op. at 13. I agree with that holding, insofar as it goes, and join the opinion because it does not purport to hold that in making the materiality analysis a court shouldn’t also consider undisclosed inculpatory evidence.
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 infirm, a court should examine “all of the information the officers possessed when they applied for the arrest warrant.” Escalera v. Lunn, 361 F.3d 737, 744 (2d Cir. 2004) (emphasis added); id. at 744–45 (The question is whether, “if [the affiant] had included all she learned from her investigation, the application would have supported a reasonable . . . belief that probable cause existed.”) (alteration adopted) (emphasis added) (quotation marks omitted); see also Ganek v. Leibowitz, 874 F.3d 73, 85 n.6 (2d Cir. 2017) (“Precedent instructs that, in applying the corrected affidavit doctrine, a court properly examines all of the information the officers possessed when they applied for the search warrant.”) (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 plaintiff complained that the officer omitted material information from his affidavit in support of an arrest warrant. In the course of addressing that claim, the Fifth Circuit decided that the materiality of omitted exculpatory evidence requires considering any omitted inculpatory evidence as well. Id. at 782–83. It explained that is the proper approach because “a complete affidavit” would have included both the allegedly exculpatory information that was omitted as well as “other information that police gathered” that would have “only strengthen[ed] the already solid basis for probable cause.” Id. at 782. In the Loftin case, consideration of the inculpatory omissions along with the