Georgia Carry Org, Inc. v. Brian Kabler , 580 F. App'x 695 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11225
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-00171-LGW-JEG
GEORGIA CARRY ORG., INC.,
MAHLON THEOBALD,
Plaintiffs - Appellants,
versus
BRIAN KABLER,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(August 29, 2014)
Before TJOFLAT, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Mahlon Theobald and Georgia Carry Org., Inc. appeal the district court’s
denial of their motion for summary judgment and grant of summary judgment to
Brian Kabler. Appellants claimed Kabler, a deputy in the McIntosh County
Sheriff’s Office, violated Theobald’s constitutional rights by stopping him to
inquire whether he had a license to carry a firearm Kabler had previously observed
in Theobald’s possession. On the parties’ cross-motions for summary judgment,
the district court found that Kabler did not commit a constitutional violation and
that, even if a constitutional violation did occur, Kabler was entitled to qualified
immunity. Upon review, we conclude the district court did not err in determining
that Kabler was entitled to qualified immunity and affirm.
I. BACKGROUND
Shortly after midnight on August 3, 2012, Theobald entered a convenience
store in McIntosh County, Georgia through a side entrance while carrying a
handgun in a holster on his side. The firearm was covered by a suit jacket, but as
Theobald entered the store, a breeze blew the jacket open, revealing the firearm.
Theobald grabbed the jacket and closed it, again concealing the firearm. Kabler
and two other officers were in the convenience store at the time Theobald entered
and his actions in covering it. Kabler and the officers discussed the firearm and the
possibility of making contact with Theobald to determine whether he had a license
to carry it.
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Theobald conducted a transaction and left the convenience store in his
vehicle. Shortly thereafter, Kabler followed him and made a traffic stop. Kabler
asked to see Theobald’s driver license, and after Theobald complied, Kabler asked
whether Theobald had a weapon with him. Theobald asked whether he “had to
answer,” and when Kabler gave a generally affirmative response, Theobald told
him that he had a Florida concealed weapons permit. 1 Kabler asked to see the
permit, and Theobald again asked whether he was required to comply. Kabler
responded affirmatively, and Theobald gave him the permit.
Kabler contacted a dispatch officer to check Theobald’s driver’s license and
determined that it was valid. He also visually inspected Theobald’s weapons
permit and determined that it appeared also to be valid. Kabler then returned the
documents to Theobald and told him he was free to go. At this point, Theobald
asked Kabler for their location and for information concerning Kabler’s identity.
Kabler eventually gave Theobald the information. Kabler and Theobald briefly
discussed the nature of the stop, and Kabler informed Theobald that he could ask to
see Theobald’s permit any time he were to see him carrying a firearm. In total, the
stop lasted eight minutes and fifty seconds.
Based on these events, Appellants filed a complaint asserting, in pertinent
part, a claim under 42 U.S.C. § 1983 that Kabler violated Theobald’s constitutional
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Theobald’s Florida concealed weapons permit was valid in Georgia.
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rights by subjecting him to an unreasonable seizure. Theobald sought damages
against Kabler individually, and both Appellants sought declaratory and injunctive
relief against Kabler in his official capacity. Ultimately, the district court granted
summary judgment in Kabler’s favor and dismissed Theobald’s claims.
II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo,
applying the same legal standards as the district court, and construing the facts and
drawing all reasonable inferences therefrom in the light most favorable to the non-
moving party.” Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d
1146, 1149 (11th Cir. 2005).
III. DISCUSSION
A. Damages
The underlying question in this appeal is whether Kabler had reasonable
suspicion of criminal activity sufficient to overcome Theobald’s Fourth
Amendment right to be free from unreasonable seizures by government officials.
See United States v. Hunter, 291 F.3d 1302, 1305-06 (11th Cir. 2002) (citing Terry
v. Ohio, 392 U.S. 1, 30 (1968)). However, because Kabler was a government
official acting within his discretionary authority, we must view this question
through the lens of the qualified-immunity doctrine, which immunizes such a
government official from liability unless his conduct violates clearly-established
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federal law. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).
The question thus becomes whether a reasonable officer in Kabler’s shoes could
have had reasonable suspicion of criminal activity. Jackson v. Sauls, 206 F.3d
1156, 1166 (11th Cir. 2000); see also Anderson v. Creighton, 483 U.S. 635, 641
(1987) (observing that the question must be viewed objectively and that the
officer’s own subjective beliefs are irrelevant).
In support of a finding of arguable reasonable suspicion, Kabler points to
several factors, none of which are disputed. First, Kabler notes that the incident
occurred late at night at a convenience store, a combination of time and place for
which armed robberies are particularly problematic. Kabler also notes that
Theobald entered the store through a side entrance. Most importantly, Kabler
points to Theobald’s concealment of his firearm after his jacket opened and
revealed it, arguing that Theobald’s attempt to cover up his weapon in the vicinity
of the officers could indicate that his possession of the weapon was unlawful. 2
2
Theobald contends the district court made an improper inference in Kabler’s favor when
it stated that Theobald concealed his weapon after he saw the officers in the store, despite the
record giving no indication of when Theobald concealed his weapon in relation to when he
became aware of the officers. However, in making this statement, the district court was not
resolving when in fact the two events occurred; rather, the court was merely articulating how the
events might have appeared to an officer in Kabler’s position. Without knowing with certainty
whether Theobald had become aware of the officers before covering his weapon with his jacket,
a reasonable officer could have nevertheless inferred a possibility that Theobald had noticed the
officers prior to covering his weapon and had done so out of concern that the officers not observe
it.
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We conclude that a reasonable officer could have believed that the totality of
these circumstances was sufficient to establish a reasonable suspicion justifying the
ensuing traffic stop. See Hunter, 291 F.3d at 1306 (stating that courts “look at the
totality of the circumstances of each case” to determine whether reasonable
suspicion existed (internal quotation marks omitted)). Even though each factor is,
in isolation, susceptible to an innocent explanation, taken together they create at
least an arguably reasonable suspicion that Theobald was carrying his firearm
illegally. See id. (“[R]easonable suspicion may exist even if each fact alone is
susceptible to an innocent explanation.”). Understanding that the reasonable-
suspicion standard is elusive and “somewhat abstract,” United States v. Arvizu, 534
U.S. 266, 274 (2002), we cannot say that no reasonable officer in Kabler’s shoes
would have believed that reasonable suspicion existed under these circumstances.
B. Declaratory & Prospective Injunctive Relief 3
Appellants also sought declaratory and prospective injunctive relief
specifically relating to Kabler’s statement that he could require Theobald to show
Similarly, it is of no consequence what actually motivated Theobald to pull his jacket
over his weapon because the question is how his behavior would have appeared to a reasonable
officer under the circumstances.
3
The district court did not separately discuss these claims but dismissed them following
its order on the parties’ cross-motions for summary judgment. The district court’s lack of
discussion of these claims is of no moment, however, because we resolve them on the basis of
standing, an issue we consider de novo and may raise sua sponte. AT&T Mobility, LLC v.
NASCAR, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007).
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him his weapons permit any time he were to see Theobald carrying a weapon.
Theobald asked the district court to declare that requiring him to produce a
weapons permit in this way would violate his constitutional rights and to enjoin
Kabler from doing so. As Appellants point out, however, subsequently to the
events underlying this appeal, the Georgia Assembly passed a bill, effective July 1,
2014, that prohibits law-enforcement officers from detaining a person carrying a
weapon solely to determine whether the person is carrying a weapons permit. See
O.C.G.A. § 16-11-137(b). For this reason, Appellants cannot demonstrate the
“substantial likelihood that [they] will suffer injury in the future” necessary to
establish their standing to assert these claims. See Malowney v. Fed. Collection
Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999). Even if Kabler’s statements
made it likely he would require Theobald to produce a weapons permit solely
because he had seen Theobald with a firearm, there is no reason to believe this
likelihood persists after the enactment of § 16-11-137(b). Thus, we conclude those
claims must fail for lack of standing.
III. CONCLUSION
In light of the foregoing, we conclude that the district court did not err in
finding Kabler entitled to qualified immunity on Theobald’s § 1983 claim, and we
further conclude that Appellants lack standing to assert their claims for declaratory
judgment and prospective injunctive relief.
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AFFIRMED.
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