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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10316
Non-Argument Calendar
____________________
DEMETRIUS RASHARD LUKE,
Plaintiff-Appellant,
versus
JAMEEL H. GULLEY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:19-cv-00122-LAG
____________________
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2 Opinion of the Court 22-10316
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and GRANT, Cir-
cuit Judges.
PER CURIAM:
This appeal is the second time we have reviewed Demetrius
Rashard Luke’s amended complaint against Jameel H. Gulley of
the Albany Police Department for malicious prosecution. See
42
U.S.C. § 1983. In Luke’s first appeal, we vacated an order dismiss-
ing his complaint for failure to allege a favorable termination on a
charge of felony murder. Luke v. Gulley,
975 F.3d 1140, 1144–45
(11th Cir. 2020). Luke now appeals the summary judgment in favor
of Detective Gulley based on qualified immunity. The district court
ruled that, even though the detective’s affidavit was insufficient to
provide probable cause to support the warrant to arrest Luke, the
detective had at least arguable probable cause to arrest Luke. But
because Luke established that the legal process underlying his sei-
zure was constitutionally infirm and it would not have been other-
wise justified, Detective Gulley does not enjoy immunity from suit.
See
id. at 1144; accord Laskar v. Hurd,
972 F.3d 1278, 1284 (11th
Cir. 2020). So, we must again vacate and remand for further pro-
ceedings.
I. BACKGROUND
Luke’s civil suit followed the termination of his prosecution
for crimes related to a gang shootout. On March 4, 2017, while sev-
eral of the South Side Bloods gathered outside Eric Davis’s
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22-10316 Opinion of the Court 3
residence on Jackson Street, John Lewis and members of the West
Side Rattlers approached in Lewis’s truck. Lewis and his passengers
opened fire on the Bloods, whose members retaliated. Lewis was
shot in the back of the head and his truck crashed into a tree.
Officers initially had little evidence to identify the shooters.
Detective Gulley saw three black men flee from the scene, but
nearby officers whom he radioed found no one in the vicinity. The
officers collected only a handgun and expended cartridge cases in
the passenger side floorboard of Lewis’s truck, in the bed of the
truck, in the alley adjacent to Davis’s residence, and behind the res-
idence. An eyewitness reported that one of the men who fled the
scene had dreads in his hair, but the witness refused to provide a
written statement. And Detective Gulley inquired in vain with
nearby hospitals about their treatment of gunshot victims.
On March 5, 2017, the Albany Police Department received
an anonymous tip on its crime stoppers hotline. The tipster pro-
vided “[s]econd hand information” that Demetrius Luke, Corey
Wright, and two men known as Booman and Boonie were in-
volved in the shootout. The tipster stated that Luke was a member
of “The Bloods,” he had “[g]uns,” he hung out on “South Jackson
and Willard,” and he drove a red two-door car. The tipster de-
scribed Luke as being 21 to 22 years old, 5’6” to 5’7” tall, “[s]kinny,”
and having “[b]lack/low cut” hair and a “[g]oatee.” Those physical
characteristics matched a mugshot of Luke.
On March 13, 2017, Detective Gulley and Investigator Catoa
Baldwin interviewed an eyewitness to the shooting. The
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4 Opinion of the Court 22-10316
confidential informant stated that Lewis and other Rattlers “came
shooting at (Bloods) Luke and his boys.” The informant identified
Markell Brown and Eric Davis, whose nickname was Booney, as
shooters. The informant reported that “David Luke” had
“jump[ed] out a vehicle with some kind of machine gun or chop-
per” and selected David Luke’s picture from a photographic array.
The informant recalled that “they were shooting so much that it
sounded like firecrackers going off.” The informant also stated that
Adonis Warren, whose nickname was Booman, arrived after the
shooting ended and that two men, one young and one older,
jumped out of the truck “after [it] was shot up and crashed” and
then ran from the scene while tucking guns into the waistband of
their pants. The informant added that “they all were on Facebook
arguing and talking trash to each other.”
Officers verified most of the informant’s facts. Brown had a
“twist in his head and was wearing Georgia boots” when officers
“made contact with [him] again after an initial interview.” Officers
also determined that the two men who fled from the truck were
Jamarious Wright and 15-year-old Jarod Holsey. After their arrest,
“these individuals” “confirm[ed] the informant’s version of the
events.”
Further investigation eliminated Luke’s brother, David
Luke, as a suspect. When interviewed, David provided an alibi that
Detective Gulley verified. The detective “deduced” that the in-
formant “meant [David’s brother] Demetrius” based in part on
“speaking with Investigator Baldwin,” who “knows Demetrius as a
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22-10316 Opinion of the Court 5
person that hangs around [the location of the shooting] and is usu-
ally in the area.”
Detective Gulley applied for a warrant to arrest Luke. The
detective averred that, “to the best of his knowledge and belief,”
“Demetrius Luke did cause the death of John Jo[se]ph Lewis when
he shot at the truck Lewis was driving.” The detective also averred,
“This warrant is based on the Officer’s Investigation, and eye wit-
ness verbal statements.” The detective told the magistrate judge
that Luke was involved in a “gang shooting.”
The magistrate issued the warrant, and officers arrested
Luke on March 17, 2017. On May 18, 2017, Luke made bond and
was released from the Dougherty County Jail.
On November 22, 2017, a grand jury in Georgia returned a
20-count indictment against Luke, Davis, Jones, Brown, Warren,
Wright, Holsey, and a female accomplice. The grand jury charged
Luke for the felony murder of and aggravated assault of John
Lewis; aggravated assaults of Wright and of Holsey; three counts
of possessing a firearm in the commission of a felony; and violating
the Street Gang Terrorism and Prevention Act. Luke, Davis, and
Jones moved to dismiss the charges on the ground they were acting
in self-defense.
Luke, Davis, and Jones accepted an offer to dismiss their
criminal charges by nolle prosequi in exchange for testifying
against their codefendants. The State chose to dismiss the charges
because “the current state of evidence is unsubstantial to succeed
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6 Opinion of the Court 22-10316
at trial” due to the number of “few witnesses . . . [being] willing to
testify” “dwindl[ing] further,” as was common “in situations that
allege gang participation and violence.”
The trial court held a two-day hearing on the motion during
which Luke, Jones, Davis, Davis’s girlfriend, and Detective Gulley
testified. According to the prosecutor, “[t]he allocution statements
made by Davis, Luke, and Jones w[ere] largely consistent with
prior statements given by other witness[es]” that Lewis and other
occupants of his truck “fired upon them first” and that “Luke, Da-
vis, and Jones were justified in returning fire.” But only “Davis and
Jones testified that they returned fire.” At the conclusion of the
hearing, the trial court declined to rule on the defendants’ motion
to dismiss based on self-defense, consented to the motion to nol
pros, and dismissed all charges against Luke, Davis, and Jones.
Luke filed an amended complaint in a Georgia court against
Detective Gulley, who then removed the action to federal court,
see
28 U.S.C. § 1441(c). Luke complained of a process-based seizure
in violation of the Fourth Amendment and of malicious prosecu-
tion and false arrest under state law. The detective succeeded in
having Luke’s complaint dismissed for failure to allege a favorable
termination, but we vacated the order of dismissal and remanded.
Luke, 975 F.3d at 1144–45.
On remand, the district court allowed discovery on the issue
of qualified immunity. When deposed, Investigator Gulley testified
that the “eyewitness” in his affidavit was the confidential inform-
ant. The investigator insisted that the informant “gave the wrong
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22-10316 Opinion of the Court 7
person” and “said the wrong name.” He explained that the “of-
ficer’s investigation” in his affidavit referred to “the totality of eve-
rything,” including the investigative file.
After the parties filed competing motions for summary judg-
ment, the district court granted Detective Gulley’s motion and de-
nied Luke’s motion. The district court ruled that the detective did
not violate the Fourth Amendment. The district court determined
that, although the detective’s affidavit lacked sufficient information
to support a finding of probable cause by the issuing magistrate,
the detective had “probable cause, and certainly arguable probable
cause, to arrest [Luke] for Lewis’ [sic] murder” without a warrant
based on the totality of his investigation. The district court also de-
termined that Luke could not satisfy the common-law element of
malice, as defined under state tort law. The district court declined
to exercise jurisdiction over Luke’s state-law claims.
II. STANDARD OF REVIEW
We review a summary judgment based on qualified immun-
ity de novo. Williams v. Aguirre,
965 F.3d 1147, 1156 (11th Cir.
2020). Summary judgment is appropriate when “there is no genu-
ine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). To make that
“determination, we ‘view the evidence and all factual inferences
therefrom in the light most favorable to the non-moving party, and
resolve all reasonable doubts about the facts in favor of the non-
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8 Opinion of the Court 22-10316
movant.’” Williams, 965 F.3d at 1156 (quoting Skop v. City of At-
lanta,
485 F.3d 1130, 1136 (11th Cir. 2007)).
III. DISCUSSION
Law enforcement officers enjoy qualified immunity from
civil damages for their discretionary acts when their conduct does
not violate a federal right that was clearly established at the time of
the challenged action.
Id. To receive qualified immunity, an officer
must prove he was performing a discretionary function.
Id. Be-
cause Luke does not dispute that Detective Gulley was performing
a discretionary act when he applied for the arrest warrant, Luke
must prove that qualified immunity is not appropriate. See
id. at
1156–57.
We begin with the first half of the qualified immunity anal-
ysis: whether Officer Gulley violated a federal statutory or consti-
tutional right. District of Columbia v. Wesby,
138 S. Ct. 577, 589
(2018) (quotation omitted). Luke argues that Detective Gulley vio-
lated his right under the Fourth Amendment to be free from an
unreasonable seizure as a result of a malicious prosecution.
42
U.S.C. § 1983; Whiting v. Traylor,
85 F.3d 581, 583–84 (11th Cir.
1996). In Luke’s first appeal, we simplified our standard for mali-
cious prosecution into two elements: “the plaintiff must prove (1)
that the defendant violated his Fourth Amendment right to be free
from seizures pursuant to legal process and (2) that the criminal
proceedings against him terminated in his favor.” 975 F.3d at 1144.
The first element requires proof that “the legal process justifying
his seizure was constitutionally infirm” and that “his seizure would
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22-10316 Opinion of the Court 9
not otherwise be justified without legal process.” Williams, 965
F.3d at 1165. We concluded in Luke’s first appeal that he received
a favorable termination of his charge for felony murder. Luke, 975
F.3d at 1144. So we need only address whether Luke can prove that
his arrest warrant was constitutionally infirm and that his seizure
would not have been justified without legal process. See Williams,
965 F.3d at 1165.
Under the Fourth Amendment, “before a warrant for . . . ar-
rest . . . can issue . . . the judicial officer issuing such a warrant
[must] be supplied with sufficient information to support an inde-
pendent judgment that probable cause exists for the warrant.”
Whiteley v. Warden, Wyo. State Penitentiary,
401 U.S. 560, 564
(1971). The determination of probable cause turns on “what the
affidavit charging the plaintiff stated.” Williams, 965 F.3d at 1163
(internal quotation marks) (alteration adopted). The “warrant affi-
davit must set forth particular facts and circumstances underlying
the existence of probable cause . . . .” Franks v. Delaware,
438 U.S.
154, 165 (1978). We have held that an arrest warrant is constitu-
tionally infirm when either “the officer who applied for the warrant
should have known that his application failed to establish probable
cause or that an official, including an individual who did not apply
for the warrant, intentionally or recklessly made misstatements or
omissions necessary to support the warrant.” See Williams, 965
F.3d at 1165. So our simplified standard for malicious prosecution
incorporates the common law elements of (express or implied)
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10 Opinion of the Court 22-10316
malice and lack of probable cause. See Luke, 975 F.3d at 1144; Wil-
liams, 965 F.3d at 1157.
Detective Gulley does not dispute that his affidavit lacked
sufficient information to provide the magistrate judge probable
cause to issue the warrant to arrest Luke for Lewis’s murder. The
detective’s affidavit is skeletal, consisting of a conclusory allegation
that Luke killed Lewis by “sho[oting] at the truck Lewis was driv-
ing” “based on the [detective]’s Investigation, and eye witness ver-
bal statements.” The affidavit is devoid of relevant and reliable facts
from which one could infer that Luke murdered Lewis. See id. That
Detective Gulley told the magistrate judge there was a “gang
shooting” added no information to implicate Luke in Lewis’s
death. And we do not consider in the calculus of probable cause
that the detective relied on the investigative file and his intuition to
identify Luke as a suspect because no record exists that he submit-
ted the file to or explained his thought processes to the magistrate
judge. See Whiteley,
401 U.S. at 565 n.8 (“[A]n otherwise insuffi-
cient affidavit cannot be rehabilitated by testimony concerning in-
formation possessed by the affiant when he sought the warrant but
not disclosed to the issuing magistrate”). Because Detective Gul-
ley’s affidavit “consists of nothing more than [his] conclusion that
. . . [Luke] perpetrated the offense described,” it “could not support
the independent judgment of [the] disinterested magistrate” judge.
See
id. at 565.
Even if, as Detective Gulley argues, his investigation pro-
vided probable cause to arrest Luke, the record contains evidence
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22-10316 Opinion of the Court 11
that Luke was detained “too long to be justified without legal pro-
cess.” See Williams, 965 F.3d at 1167; see, e.g., Cnty. of Riverside
v. McLaughlin,
500 U.S. 44, 57 (1991) (treating as presumptively
unconstitutional a seizure beyond 48 hours without a probable
cause determination). Luke was imprisoned 61 days. A seizure of
that length cannot be justified without a lawful warrant.
To be sure, the detective’s possession of probable cause is
relevant to the issue of damages, see Williams, 965 F.3d at 1161,
but the parties present no argument about and we do not decide
any issue of damages. “When constitutional rights are violated, a
plaintiff may recover nominal damages even though he suffers no
compensable injury.” Kelly v. Curtis,
21 F.3d 1544, 1557 (11th Cir.
1994) (emphasis omitted). Luke could recover nominal damages if
he suffered a violation of his right to be free from an unreasonable
seizure. But to “recover actual damages,” Luke must establish that,
but for Detective Gulley’s conclusory affidavit, “he would have
been released earlier or would not have faced detention.” Williams,
965 F.3d at 1161 (internal quotation marks omitted) (alteration
adopted).
The district court also erred by using contemporary Georgia
law to evaluate the detective’s conduct. “[T]he Supreme Court has
clarified that the relevant common-law principles are those that
were ‘well settled at the time of section 1983’s enactment.’” Id. at
1159 (quoting Nieves v. Bartlett,
139 S. Ct. 1715, 1726 (2019)) (al-
teration adopted); accord, Thompson v. Clark,
142 S. Ct. 1332, 1337
(2022). By then, proof of the absence of probable cause allowed a
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12 Opinion of the Court 22-10316
jury to infer malice for the common-law tort of malicious prosecu-
tion. See Williams, 965 F.3d at 1160–61; Laskar, 972 F.3d at 1295–
96. A district court errs when it relies on modern tort law or the
law of the forum state—for example, of Alabama, Georgia, or Flor-
ida—to resolve a claim of unreasonable seizure pursuant to legal
process under section 1983, as occurred here.
Having concluded that Officer Gulley violated Luke’s
Fourth Amendment rights, we turn next to whether the unlawful-
ness of his conduct was clearly established at the time. We hold
that it was. Under longstanding Supreme Court precedent, an of-
ficer must provide particular information to support an arrest war-
rant. See Whiteley,
401 U.S. at 564; Franks,
438 U.S. at 165. Our
precedents agree—an officer who seeks an arrest warrant based on
a ‘conclusory affidavit’ that ‘clearly is insufficient to establish prob-
able cause’ is not entitled to qualified immunity.” Kelly,
21 F.3d at
1555 (quoting Garmon v. Lumpkin Cnty.,
878 F.2d 1406, 1408 (11th
Cir. 1989)). Here, no “reasonably competent officer” could have
concluded that a warrant should issue based on the glaring defi-
ciencies in the affidavit. Malley v. Briggs,
475 U.S. 335, 341 (1986).
As a result, the unlawfulness of Detective Gulley’s conduct was
clearly established when he acted and he was not entitled to quali-
fied immunity.
Luke raises three other arguments, each of which lack merit.
First, Luke challenges the denial of his motion to compel discovery
but because he does not dispute that his motion was untimely, the
district court acted within its discretion in denying it. See Josendis
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22-10316 Opinion of the Court 13
v. Wall to Wall Residence Repairs,
662 F.3d 1292, 1307 (11th Cir.
2011) (stating that “we have often held that a district court’s deci-
sion to hold litigants to the clear terms of its scheduling orders is
not an abuse of discretion”). Second, Luke argues that he was enti-
tled to sanctions because Detective Gulley’s counsel allegedly
made misrepresentations of fact in his filing, but the district court
found that counsel’s filings accurately recounted information in the
detective’s report and the confidential informant’s video interview.
The district court reasonably concluded that a disagreement over
the interpretation of the facts is not a proper basis for sanctions.
Finally, Luke argues that the district court erred in denying his mo-
tion for summary judgment. In the light of our opinion clarifying
the law that governs Luke’s complaint, we express no view on the
merits of that motion and leave it for the district court to address
in the first instance should Luke choose to renew the motion on
remand.
IV. CONCLUSION
We VACATE the order granting summary judgment in De-
tective Gulley’s favor and REMAND for further proceedings.
