Anthony Wayne Hardigree v. Marc Lofton ( 2021 )


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  •          USCA11 Case: 19-13352      Date Filed: 04/06/2021   Page: 1 of 31
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 19-13352
    ________________________
    D.C. Docket No. 2:17-cv-00236-RWS
    ANTHONY WAYNE HARDIGREE,
    Plaintiff - Appellee,
    versus
    MARC LOFTON,
    Statham Police Officer, individually,
    Defendant - Appellant,
    CITY OF STATHAM, et al.,
    Defendants.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (April 6, 2021)
    Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
    USCA11 Case: 19-13352          Date Filed: 04/06/2021       Page: 2 of 31
    WILSON, Circuit Judge:
    Officer Marc Lofton appeals a district court order granting summary
    judgment to Anthony Wayne Hardigree on one claim and denying Lofton summary
    judgment on the same and other claims. Hardigree filed suit against Lofton under
    
    42 U.S.C. § 1983
     and Georgia state laws in 2017.1 He brought claims for unlawful
    entry, false arrest, excessive force, malicious prosecution, false imprisonment,
    assault, and battery. His claims arose from an August 4, 2016, interaction with
    Lofton and other officers at his mobile home in Statham, Georgia. Both parties
    moved for summary judgment.
    The facts of this case are disputed, and because there are dueling summary
    judgment motions, in some instances we must look at the facts in the light most
    favorable to Hardigree and in other instances in the light most favorable to Lofton.
    What is undisputed—and relevant to the challenge here—is that Lofton entered
    Hardigree’s home without a warrant and without consent on August 4, 2016.
    Lofton deployed his taser on Hardigree and Hardigree was arrested and charged
    with disorderly conduct, obstruction, and simple battery. All charges were
    eventually dismissed. Hardigree then filed this suit.
    1
    Hardigree brought claims against other defendants as well, but Lofton is the only defendant
    involved in this appeal.
    2
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    The district court granted Hardigree’s motion for summary judgment on the
    unlawful entry claim and denied it on all other claims. As to Lofton’s motion for
    summary judgment, the court granted it for the federal malicious prosecution claim
    and denied it for all other claims. Lofton appealed. He argues that he is entitled to
    summary judgment because he did not violate Hardigree’s constitutional rights, or
    alternatively, he is entitled to qualified immunity on the federal claims and official
    immunity on the state law claims.
    After discussing the disputed facts, we first consider whether the district
    court erred by granting summary judgment to Hardigree on the unlawful entry
    claim. Next, we consider whether the district court’s denial of summary judgment
    to Lofton on that claim was proper. Finally, we review the denial of summary
    judgment to Lofton on the false arrest, excessive force, and state law claims.
    The facts of this case are heavily disputed and there are genuine issues of
    material fact as to whether Lofton lawfully entered Hardigree’s home. Therefore,
    summary judgment is improper. We reverse the grant of summary judgment to
    Hardigree on the unlawful entry claim. The disputed facts also color the remaining
    claims. Because genuine issues of material fact prevent finding for Lofton as a
    matter of law, we affirm the district court’s denial of summary judgment, qualified
    immunity, and official immunity on all other claims.
    3
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    I. Background
    The following facts are undisputed: On August 4, 2016, Anthony Rodgers
    was the subject of a criminal drug investigation. 2 The police were surveilling a
    known drug house and observed Rodgers leave the house in a red Ford Explorer.
    An officer began to follow Rodgers but subsequently lost him. The officer radioed
    for assistance, and another officer soon spotted the red Explorer parked near a
    mobile home. The mobile home was Hardigree’s residence.
    As the officer pulled up, she observed Rodgers leaving Hardigree’s home
    carrying a black bag. Once Rodgers got back into the Explorer, the officer
    approached the vehicle. While asking Rodgers for his license, the officer smelled
    marijuana. She subsequently searched the car. In the car, the officer discovered 29
    grams of methamphetamines, some marijuana, and other drug paraphernalia.3 The
    officer arrested Rodgers and a female passenger.
    Lofton had since arrived at the scene. He was informed that Rodgers had
    been seen walking from Hardigree’s home. Roughly twenty minutes later, Lofton
    2
    Throughout the record, Rodgers’s last name is spelled both “Rogers” and “Rodgers.” We use
    “Rodgers” to mirror the district court’s order.
    3
    Where the drugs were found is a disputed fact. Lofton contends that the 29 grams of
    methamphetamines were found in the black bag that Rodgers was seen carrying from
    Hardigree’s home—or at least that Lofton believed that to be the case when he approached the
    home. Hardigree contends that the drugs were not found in the bag. The police report states that
    the methamphetamines were found in a clear plastic bag outside of the bag Rodgers carried from
    the house. Alternatively, Hardigree contends that Lofton did not even know Rodgers carried a
    bag from the house when he approached the door.
    4
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    and other officers approached the mobile home to conduct a knock-and-talk.
    Torrey Craig, Hardigree’s wife, answered the door. When asked if she knew
    Rodgers, she said no but that her husband had spoken to him; she then went to get
    Hardigree.
    The conversation was audio-recorded. The officers asked about Rodgers,
    and Hardigree told them he did not know Rodgers but that Rodgers came to the
    house looking for work and asked for a bottle of water. The officers expressed
    skepticism at the story—noting that Rodgers was a known drug dealer so they did
    not think he would be looking for a job. The officers asked to search the house and
    Hardigree declined, saying it was not his house but his sister’s house. An officer
    asked Hardigree to call his sister. Hardigree sought to close the door and end the
    conversation but Lofton told Hardigree he was not free to leave and was being
    detained. Lofton told him to stay where he was (in the house). The other officer
    told him to come outside.
    At this point the stories diverge. Hardigree says that he announced he was
    “going to go and get the phone” to call his sister and get permission for a search.
    He turned and walked away from the door. Lofton then barged through the door
    into Hardigree’s home.
    Lofton says that Hardigree “abruptly and without warning turned and rushed
    further into the home.” Lofton entered and reached out to grab Hardigree to stop
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    him because he feared for his safety and believed Hardigree may be running to
    destroy evidence.
    Per Hardigree, Lofton “immediately and without any warning deployed his
    taser.” Hardigree “offered no resistance whatsoever to Lofton or the other
    officers.” He fell face first on the ground screaming and begging Lofton to stop
    tasering him, but Lofton did not stop. One of the prongs of the taser went into
    Hardigree’s penis. Lofton deployed the taser again through the prongs even though
    Hardigree was not resisting. Then, with Hardigree prone on the ground, Lofton
    detached the prongs and tasered him in drive stun mode. Lofton pushed the taser
    between Hardigree’s legs up into his inner, upper thigh—close to his genitals.
    Lofton then arrested Hardigree.
    According to Lofton, a brief struggle ensued once Lofton entered the home.
    After being shoved by Hardigree, Lofton unholstered his taser and deployed it
    while Hardigree was standing up and facing him. Lofton issued several commands
    to Hardigree to get on the ground and show his hands. After being tasered,
    Hardigree fell to the ground but his hands were underneath him. He failed to
    comply with continued commands to produce his hands and another officer
    struggled to place him in handcuffs. With Hardigree’s hands near his waistband,
    Lofton used the taser in drive stun mode for compliance. Once Hardigree was
    6
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    handcuffed, no additional force was used and Hardigree regained full bodily
    function.
    II. Standard of Review
    We review a district court’s grant or denial of summary judgment, including
    those based on qualified immunity, de novo. See Fils v. City of Aventura, 
    647 F.3d 1272
    , 1287 (11th Cir. 2011). Summary judgment is appropriate when “there is no
    genuine dispute as to any material fact and the movant is entitled to judgment as a
    matter of law.” Fed. R. Civ. P. 56(a). All 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. Skop v. City
    of Atlanta, 
    485 F.3d 1130
    , 1136 (11th Cir. 2007); see also Fils, 
    647 F.3d at 1288
    (“At summary judgment, we cannot simply accept the officer’s subjective version
    of events, but rather must reconstruct the event in the light most favorable to the
    non-moving party and determine whether the officer’s [actions were unlawful]
    under those circumstances.”).
    III. Qualified Immunity Standard
    Qualified immunity protects government officials who are sued under
    § 1983 for money damages in their individual capacities. Immunity is appropriate
    so long as “their conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have known.” Harlow v.
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    Fitzgerald, 
    457 U.S. 800
    , 818 (1982). The doctrine balances “the need to hold
    public officials accountable when they exercise power irresponsibly and the need
    to shield officials from harassment, distraction, and liability when they perform
    their duties reasonably.” Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009).
    To avail oneself of qualified immunity, one must establish “that he or she
    acted within the scope of discretionary authority when the allegedly wrongful acts
    occurred.” Sims v. Metropolitan Dade County, 
    972 F.2d 1230
    , 1236 (11th Cir.
    1992). If so, courts then must determine whether the facts, viewed “in the light
    most favorable to the party asserting the injury,” show that “the officer’s conduct
    violated a constitutional right” that was clearly established at that time. Saucier v.
    Katz, 
    533 U.S. 194
    , 201 (2001). To determine if a right is clearly established, we
    ask whether the state of the law on the date of the alleged misconduct placed
    defendants on “fair warning that their alleged treatment of [the plaintiff] was
    unconstitutional.” Hope v. Pelzer, 
    536 U.S. 730
    , 741 (2002).
    IV. Unlawful Entry Claim
    Hardigree claims that Lofton unlawfully entered his home in violation of the
    Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to
    be secure in their persons, houses, papers, and effects, against unreasonable
    searches and seizures.” U.S. Const. amend. IV. The “very core” of the Fourth
    Amendment is “the right of a man to retreat into his own home and there be free
    8
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    from unreasonable governmental intrusion.” Silverman v. United States, 
    365 U.S. 505
    , 511 (1961); see also Florida v. Jardines, 
    569 U.S. 1
    , 6 (2013) (“[W]hen it
    comes to the Fourth Amendment, the home is first among equals.”).
    The “chief evil” the Fourth Amendment protects against is a government
    agent’s warrantless entry into a person’s home. See Payton v. New York, 
    445 U.S. 573
    , 585 (1980). When an officer enters a person’s home without a warrant and
    without consent, any resulting search or seizure violates the Fourth Amendment
    unless it was supported by probable cause and exigent circumstances. See 
    id.
     at
    587–90; United States v. Tovar-Rico, 
    61 F.3d 1529
    , 1534–35 (11th Cir. 1995);
    United States v. Tobin, 
    923 F.2d 1506
    , 1510 (11th Cir. 1991) (en banc). When an
    officer “conducts a warrantless search or seizure inside the home,” he bears the
    “burden of proving that his conduct was justified.” McClish v. Nugent, 
    483 F.3d 1231
    , 1241 (11th Cir. 2007).
    An officer has probable cause to search when there is a “fair probability that
    contraband or evidence of a crime will be found in a particular place.” Tobin, 
    923 F.2d at 1510
    . Probable cause is determined based on the totality of the
    circumstances. See Illinois v. Gates, 
    462 U.S. 213
    , 230 (1983). In general,
    association with a known drug dealer, without more, is insufficient to establish
    probable cause. See Ybarra v. Illinois, 
    444 U.S. 85
    , 91 (1979) (“[A] person’s mere
    propinquity to others independently suspected of criminal activity does not,
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    without more, give rise to probable cause to search that person.”). And “mere
    presence at a crime scene without more” is also not enough. United States v.
    Virden, 
    488 F.3d 1317
    , 1322 (11th Cir. 2007).
    Exigent circumstances exist when “the inevitable delay incident to obtaining
    a warrant must give way to an urgent need for immediate action.” United States v.
    Burgos, 
    720 F.2d 1520
    , 1526 (11th Cir. 1983). For example, courts have found
    exigent circumstances where officers entered a home to prevent the destruction of
    evidence, United States v. Mikell, 
    102 F.3d 470
    , 476 (11th Cir. 1996), to pursue a
    fleeing suspect, United States v. Santana, 
    427 U.S. 38
    , 42–43 (1976), and to break
    up a violent fight, Brigham City v. Stuart, 
    547 U.S. 398
    , 406 (2006).
    The exigent circumstances exception is “particularly compelling in narcotics
    cases” because courts recognize that drugs can be easily and quickly destroyed.
    United States v. Santa, 
    236 F.3d 662
    , 669 (11th Cir. 2000). However, the presence
    of contraband alone does not give rise to exigent circumstances. Id.; see also
    United States v. Lynch, 
    934 F.2d 1226
    , 1232 (11th Cir. 1991).
    Exigent circumstances may arise “when there is danger that the evidence
    will be destroyed or removed.” Tobin, 
    923 F.2d at 1510
    . To determine if there is
    exigency, we must ask whether the facts would lead an objectively “reasonable,
    experienced agent to believe that evidence might be destroyed before a warrant
    could be secured.” 
    Id.
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    Additionally, an officer may constitutionally secure a dwelling based on
    probable cause “to prevent the destruction or removal of evidence while a search
    warrant is being sought.” Segura v. United States, 
    468 U.S. 796
    , 810 (1984). In
    some circumstances, securing a residence can include refusing to allow a person to
    enter their residence alone or otherwise detaining them outside. See Illinois v.
    McArthur, 
    531 U.S. 326
    , 331–32 (2001).
    Even so, in cases involving warrantless searches or seizures, law
    enforcement officers will be entitled to qualified immunity if they had even
    “arguable probable cause.” Feliciano v. City of Miami Beach, 
    707 F.3d 1244
    ,
    1251 (11th Cir. 2013). Arguable probable cause exists if “reasonable officers in the
    same circumstances and possessing the same knowledge as the Defendants could
    have believed that probable cause existed.” Swint v. City of Wadley, 
    51 F.3d 988
    ,
    996 (11th Cir. 1995).
    Both parties filed motions for summary judgment on the unlawful entry
    claim. The district court granted Hardigree’s motion and denied Lofton’s motion.
    Lofton argues that the district court erred. Not only did Lofton not violate
    Hardigree’s constitutional rights, he contends, but even if he did, he is entitled to
    summary judgment based on qualified immunity. Accordingly, we first consider
    whether the district court erred by granting summary judgment on the unlawful
    entry claim to Hardigree. In doing so, we accept the facts in the light most
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    favorable to Lofton. We then consider whether the district court erred by denying
    summary judgment to Lofton, either on the merits or on qualified immunity. For
    that inquiry, we view the facts in the light most favorable to Hardigree.
    A. Hardigree’s Summary Judgment Motion
    Lofton claims that the district court erred by granting summary judgment to
    Hardigree. An officer can justify a warrantless entry by showing both that there
    was probable cause to believe evidence of a crime was in the house, and that
    exigent circumstances existed. See Tobin, 
    923 F.2d at 1510
    . Lofton contends that
    he has shown both. This not only defeats Hardigree’s summary judgment motion,
    according to Lofton, but also means that the district court should have granted
    summary judgment to Lofton on this claim.
    Lofton argues that he had probable cause to search the house and to secure it
    while he sought a warrant. 4 He based that determination on the following facts: 1)
    Rodgers was a known drug dealer under surveillance; 2) Rodgers left a suspected
    drug house to go to Hardigree’s home; 3) Rodgers and Hardigree met briefly out of
    public view which is common for illegal drug transactions; 4) Rodgers exited
    Hardigree’s home with a bag that was discovered to have 29 grams of
    4
    Lofton also argues that he was conducting a lawful in-home Terry stop, which is permissible
    when there is both reasonable suspicion and exigent circumstances. See Moore v. Pederson, 
    806 F.3d 1036
    , 1039 (11th Cir. 2015); see also Terry v. Ohio, 
    392 U.S. 1
     (1968). The district court
    relied on Moore to find that Lofton violated the Fourth Amendment even before he entered the
    home. But Hardigree’s complaint only alleges unlawful entry, so we need not address that issue
    here. Rather, our analysis centers on the lawfulness of the entry itself.
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    methamphetamines in it; 5) Lofton believed Hardigree had a connection with drugs
    based on a previous arrest for a drug DUI outside of a known drug house; and 6)
    the reason Hardigree gave for Rodgers’s visit (asking for work) was implausible.
    Noting that these activities are commonly associated with drug dealing,
    Lofton points to a case, though it is unpublished and nonbinding, to argue that it
    was reasonable to believe that Rodgers supplied, traded, or sold drugs during his
    interaction with Hardigree and that evidence of the transaction could be found
    inside the home. See United States v. Murray, 659 F. App’x. 1023, 1026 (11th Cir.
    2016) (per curiam) (where a search warrant was issued based on an affidavit that
    said (1) “several visitors entered and exited the house after only a few minutes,
    which the attesting officer believed was indicative of drug sales; and (2) that a
    traffic stop of a car leaving the house resulted in the seizure” of drugs, a gun, and
    more than “$500 in small bills”).
    Lofton further argues that he could lawfully detain Hardigree while seeking
    a warrant because he had probable cause to believe drugs were in the home and
    Hardigree knew a search was imminent. Courts have noted that drugs can easily be
    destroyed or disposed of when a suspect is given the opportunity and knows a
    search is imminent. See McArthur, 
    531 U.S. at 332
    . Lofton contends that was the
    case here. On that basis, the restraint he imposed on Hardigree (to remain at the
    door) while attempting to secure a warrant was lawful.
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    Once Hardigree fled into the home, Lofton argues that exigent circumstances
    permitted him to follow. For support Lofton cites Santana, where the Supreme
    Court held that an officer did not violate the Fourth Amendment when he arrested
    a suspect who had fled from her doorway into her home. 
    427 U.S. at 43
    . The Court
    reasoned that when the suspect was standing in her doorway, she was in a “public”
    place—making a warrantless arrest lawful. 
    Id. at 42
    . The act of retreating into her
    home initiated a “hot pursuit,” and justified a warrantless arrest in her house. 
    Id.
     at
    42–43. Lofton equates Santana to the situation here: his detention of Hardigree at
    the doorway was lawful, so when Hardigree fled into the house—raising
    destruction of evidence and officer safety concerns—his entry into the home, in hot
    pursuit of Hardigree, was similarly lawful. Thus, because probable cause and
    exigent circumstances existed, Lofton argues that he did not violate the Fourth
    Amendment.
    Hardigree disputes some of the facts that led Lofton to believe there was
    probable cause, most notably whether the drugs were found in the bag that Rodgers
    carried from Hardigree’s home and whether Hardigree “fled” into his home.
    Hardigree also argues that the DUI Lofton is referring to was for lawfully
    prescribed medications and was dismissed. He alleges that Lofton knew both of
    those facts, so he could not reasonably conclude that Hardigree was involved with
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    narcotics. But when considering Hardigree’s motion for summary judgment on his
    unlawful entry claim, we must view the facts in the light most favorable to Lofton.
    Hardigree also argues that association with a known drug dealer is not
    enough to establish probable cause, so Lofton did not have probable cause here.
    See Ybarra, 444 U.S. at 91. But Lofton did not rely only on the fact that Rodgers
    was near Hardigree or that Rodgers was a known drug dealer. Rather, Lofton
    assessed the totality of the circumstances: the existence of the drugs, that they were
    found in a bag just after Rodgers left from a short visit at Hardigree’s home, and
    that Hardigree’s explanation of the reason for Rodgers’s visit was suspicious based
    on what Lofton knew about both Rodgers and Hardigree. Lofton then interpreted
    Hardigree’s fleeing, after hearing that the officers wanted to search the house, as an
    indication that evidence could be destroyed. Taken together, a reasonable jury
    could find that this constitutes probable cause—or at least arguable probable
    cause—to believe a drug transaction had occurred and evidence was inside. Once
    Hardigree fled into the house, a jury could find exigent circumstances existed to
    enter. That is all Lofton must show at this stage to defeat Hardigree’s motion. See
    Feliciano, 707 F.3d at 1251.
    The district court erred in its analysis of this claim because it did not view
    the facts in the light most favorable to Lofton. Though the order acknowledges that
    the facts must be taken in that light, the district court seems to quibble with
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    Lofton’s version of the facts—and seemingly draws inferences in favor of
    Hardigree. Granted, Lofton included in his summary judgment brief at least one
    fact that cannot constitutionally be considered when determining whether
    reasonable suspicion or probable cause exist: the fact that Hardigree did not
    consent to a search. See United States v. Boyce, 
    351 F.3d 1102
    , 1110 (11th Cir.
    2003). But that aside, Lofton provided enough facts, as discussed above, to
    constitute at least arguable probable cause. For that reason, the district court erred
    in granting summary judgment to Hardigree on the unlawful entry claim. We
    reverse the district court to that extent.
    B. Lofton’s Summary Judgment Motion
    However, Lofton is not entitled to summary judgment on the unlawful entry
    claim either—even under qualified immunity. Once an official asserting qualified
    immunity establishes that he was acting within his discretionary authority—which
    is not in question here—the burden shifts to the plaintiff to show that qualified
    immunity is improper. Skop, 
    485 F.3d at
    1136–37. This requires showing that the
    defendant’s conduct violated a statutory or constitutional right and that the right
    was “clearly established.” Saucier, 533 U.S. at 201. When considering Lofton’s
    motion for summary judgment, we must view the facts in the light most favorable
    to Hardigree, the non-movant. Skop, 
    485 F.3d at 1136
    .
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    Qualified immunity recognizes that “reasonable mistakes can be made as to
    the legal constraints on particular police conduct.” Saucier, 533 U.S. at 205. “[I]t is
    inevitable that law enforcement officials will in some cases reasonably but
    mistakenly conclude that probable cause is present, and we have indicated that in
    such cases those officials . . . should not be held personally liable.” Anderson v.
    Creighton, 
    483 U.S. 635
    , 641 (1987). Therefore, even if we decide that an officer
    did not have probable cause, we consider whether “reasonable officers in the same
    circumstances and possessing the same knowledge as the Defendant[ ] could have
    believed that probable cause existed.” Lee v. Ferraro, 
    284 F.3d 1188
    , 1195 (11th
    Cir. 2002). If so, the officer had arguable probable cause, which is “all that is
    required for qualified immunity.” Scarbrough v. Myles, 
    245 F.3d 1299
    , 1302 (11th
    Cir. 2001) (per curiam).
    Though Lofton has asserted arguable probable cause—which would entitle
    him to qualified immunity—he relies on material facts that are disputed by
    Hardigree. Hardigree’s version of the facts tell a different story and prevent a
    finding of even arguable probable cause.
    As discussed above, the most notable disputes involve whether the drugs
    were found in the black bag and whether Hardigree “fled” into the home. But those
    are not the only disputed facts: Hardigree contends that Lofton did not even know
    that Rodgers was carrying a bag when he walked out of Hardigree’s home and that
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    Lofton did know Hardigree’s DUI was for lawfully prescribed medications and
    was dismissed. Hardigree also contends that there was nothing suspicious about
    him or his house; per Lofton’s deposition, he initially thought Rodgers might have
    burglarized Hardigree’s home. Finally, Hardigree argues that an officer told him to
    call his sister for permission, and that he announced he was going to do so when he
    walked away from the door. Thus, he was following police orders when he moved
    from the door, not disobeying them.
    Crediting Hardigree’s version of the facts, Lofton lacks even arguable
    probable cause. If the drugs were not found in the bag, as Hardigree asserts, it
    becomes much less clear what is suspicious about Hardigree’s home except its
    proximity to drugs and a known drug dealer. That alone is not enough to constitute
    arguable probable cause. Cf. Virden, 
    488 F.3d at 1321
    .
    Additionally, if the drugs were not in the bag, the interaction between
    Hardigree and Rodgers appears less like a common drug transaction and more like
    a quick conversation or visit amongst friends—especially considering that the
    police had been surveilling Rodgers and knew him to conduct drug deals
    exclusively at his own house. See Ybarra, 444 U.S. at 91.
    If Hardigree’s prior DUI was not related to narcotics and Lofton was aware
    of that, there is nothing to tie Hardigree himself to drugs either. Under Hardigree’s
    version of the facts, Lofton only knows that a drug dealer visited Hardigree’s home
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    and that Hardigree’s explanation of the reason for the visit seems unlikely. That
    does not constitute probable cause and no reasonable officer would believe that it
    does. See generally Madiwale v. Savaiko, 
    117 F.3d 1321
    , 1324 (11th Cir. 1997)
    (explaining that the court must determine that “reasonable officers in the same
    circumstances and possessing the same knowledge as the Defendants could have
    believed that probable cause existed” to grant qualified immunity); see also Gates,
    
    462 U.S. at 238
     (explaining that probable cause requires a “fair probability that
    contraband or evidence of a crime will be found in a particular place”). Though
    probable cause “is incapable of precise definition,” we know that “the belief of
    guilt must be particularized with respect to the person to be searched or seized.”
    Maryland v. Pringle, 
    540 U.S. 366
    , 371 (2003). Here, any belief of guilt was not
    particularized to either Hardigree or his home.
    Under Hardigree’s version of the facts, Lofton also lacked exigent
    circumstances, making his entry into the home plainly unlawful. See Payton, 
    445 U.S. at 585
    . Hardigree contends that he did not flee or furtively move into his
    home when he sought to invoke his Fourth Amendment right and close his door.
    Rather, he announced to the officers what he was doing (calling his sister to obtain
    permission for a search) and then walked inside at a normal pace. Hardigree
    explains that his announcement about calling his sister can be heard on the audio
    19
    USCA11 Case: 19-13352          Date Filed: 04/06/2021       Page: 20 of 31
    recording, and that he only did so because the officers asked him to call his sister
    for permission.
    Such acts do not even arguably arouse the same concerns about officer
    safety or destruction of evidence that “furtively fleeing” into the house do. It does
    not create the kind of “urgent need for immediate action” that existed in cases like
    Santana or Mikell. See McClish, 
    483 F.3d at
    1240–41. And because Hardigree says
    he was going inside to comply with the orders of an officer, the act is not
    suspicious.
    Assuming Hardigree’s version of the facts to be true, a reasonable officer
    would not believe that Hardigree was going to destroy alleged evidence—and
    would have no reason to even believe there was evidence inside to destroy. Such a
    finding is even more unreasonable considering other officers had already let
    Hardigree’s wife retreat into the house alone at the beginning of the knock-and-
    talk.5
    5
    Lofton’s cite to Minor v. State, 
    680 S.E.2d 459
     (Ga. Ct. App. 2009), does not convince us that
    his conduct was arguably lawful. The cases are wholly distinguishable when we take the
    disputed facts in the light most favorable to Hardigree—which we must at this stage. First, in
    Minor, the officers came to the house to investigate a report that Minor’s children were being
    exposed to illegal drug use at home. 
    Id. at 461
    . Here, the officers did not come to investigate
    Hardigree, nor did they know anything about Hardigree when they arrived because they were
    there pursuing Rodgers. Next, the officers smelled marijuana on Minor. 
    Id.
     In Hardigree’s case,
    the officers said in their deposition that they did not smell any drugs on Hardigree or in his
    house. Finally, Minor “bolted into his home and shut the door,” prompting pursuit by the
    officers. 
    Id. at 462
    . Here, Hardigree contends that he walked into the house pursuant to officer
    orders to call his sister.
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    Protecting against warrantless government entry into a person’s home is the
    core of the Fourth Amendment. See Payton, 
    445 U.S. at 585
    ; Jardines, 
    569 U.S. at 6
    . It was clearly established long before Lofton arrived at Hardigree’s door that
    without a warrant or consent, or probable cause and exigent circumstances, he
    could not enter the home. See Payton, 
    445 U.S. at
    587–90; Tovar-Rico, 
    61 F.3d at
    1534–35. Based on Hardigree’s version of the facts, Lofton lacked all of these.
    Accordingly, there are genuine disputes of material fact as to whether Lofton
    had even arguable probable cause, or exigent circumstances, justifying his entry
    into Hardigree’s home. We are constrained to conclude that summary judgment—
    even based on qualified immunity—is not appropriate on this claim. See Fed. R.
    Civ. P. 56(a); see also Carlin Commc’n, Inc. v. S. Bell Tel. & Tel. Co., 
    802 F.2d 1352
    , 1356 (11th Cir. 1986) (“[T]he court may not weigh conflicting evidence to
    resolve disputed factual issues; if a genuine dispute is found, summary judgment
    must be denied.”). These factual disputes can only be sorted out by a jury.
    V. False Arrest Claims
    Lofton next argues that the district court also erred by denying him
    summary judgment on the false arrest claims. For this claim, and all remaining
    claims, we view the facts in the light most favorable to Hardigree. See Skop, 
    485 F.3d at 1136
    .
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    USCA11 Case: 19-13352       Date Filed: 04/06/2021   Page: 22 of 31
    “There is no question that an arrest without probable cause to believe a
    crime has been committed violates the Fourth Amendment.” Madiwale, 
    117 F.3d at 1324
    . However, qualified immunity protects an officer from a false arrest claim
    if arguable probable cause existed for the arrest. See Storck v. City of Coral
    Springs, 
    354 F.3d 1307
    , 1315 (11th Cir. 2003). Arguable probable cause for any
    offense would bar Hardigree’s false arrest claim on all charges. See Grider v. City
    of Auburn, 
    618 F.3d 1240
    , 1257 (11th Cir. 2010); see also Marx v. Gumbinner,
    
    905 F.2d 1503
    , 1505–06 (11th Cir. 1990).
    In determining whether probable cause exists for an arrest, we consider
    whether the arresting officer’s actions were “objectively reasonable based on the
    totality of the circumstances.” Kingsland v. City of Miami, 
    382 F.3d 1220
    , 1226
    (11th Cir. 2004), abrogated on other grounds by Williams v. Aguirre, 
    965 F.3d 1147
     (11th Cir. 2020). “This standard is met when the facts and circumstances
    within the officer’s knowledge, of which he or she has reasonably trustworthy
    information, would cause a prudent person to believe, under the circumstances
    shown, that the suspect has committed, is committing, or is about to commit an
    offense.” 
    Id.
     (internal quotation mark omitted).
    Whether an officer possesses probable cause or arguable probable cause to
    arrest depends on the elements of the alleged crime and the operative facts. See
    Crosby v. Monroe County, 
    394 F.3d 1328
    , 1333 (11th Cir. 2004). Hardigree was
    22
    USCA11 Case: 19-13352        Date Filed: 04/06/2021    Page: 23 of 31
    arrested and charged with disorderly conduct, obstruction, and simple battery. We
    address each offense in turn. But because no arguable probable cause existed for
    any of these offenses, we affirm the district court’s denial of summary judgment
    and qualified immunity on these claims.
    A. Disorderly Conduct
    Disorderly conduct occurs when a person “[a]cts in a violent or tumultuous
    manner toward another person whereby such person is placed in reasonable fear of
    the safety of such person’s life, limb, or health.” O.C.G.A. § 16-11-39(a)(1).
    Lofton argues that Hardigree’s “spontaneous flight caused him to be concerned for
    his safety,” and that Hardigree “did not convey his intentions to the officers.”
    But Lofton errs by assuming that his facts are undisputed. Hardigree denies
    any “spontaneous flight” from the door. He contends that he announced where he
    was going before moving away from the door, which can be heard on the audio
    recording, and that he did so because an officer told him to. Accordingly, a genuine
    issue of material fact exists as to whether Hardigree fled into the house. As a result,
    we cannot say at this stage that there was even arguable probable cause for arrest
    for disorderly conduct.
    B. Obstruction
    In Georgia, “a person who knowingly and willfully obstructs or hinders any
    law enforcement officer . . . in the lawful discharge of his or her official duties
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    USCA11 Case: 19-13352            Date Filed: 04/06/2021       Page: 24 of 31
    shall be guilty of” the misdemeanor of obstruction. O.C.G.A. § 16-10-24(a).
    “[F]light, or attempted flight, after a command to halt constitutes obstruction of an
    officer.” Tankersley v. State, 
    273 S.E.2d 862
    , 866 (Ga. Ct. App. 1980).
    Lofton argues that Hardigree obstructed orders to stay put or come outside
    when he fled into the house. Under the language of this statute, if Hardigree had
    refused to obey a lawful order to remain where he was and instead fled into the
    home, Lofton may well have been able to arrest him. But Hardigree presented
    evidence sufficient to raise a genuine issue of material fact concerning the
    lawfulness of the order. The lawfulness of Lofton’s command rests on questions of
    fact about whether he had probable cause or arguable probable cause to detain
    Hardigree at the door. 6
    Hardigree also argues that he had conflicting orders from the officers
    because they had ordered him to get his phone and call his sister. When he moved
    from the door, he contends that he was not fleeing and had announced what he was
    doing. On those facts, Lofton did not have arguable probable cause to arrest him
    for obstruction. Therefore, summary judgment is inappropriate here. Determining
    what transpired, “on this highly disputed factual record, [is] exactly the sort of
    factual, credibility-sensitive task best left to the jury.” See Skop, 
    485 F.3d at 1141
    .
    6
    The Eleventh Circuit allows for Terry stops in the home when there is reasonable suspicion and
    exigent circumstances. See Moore, 806 F.3d at 1039. But the factual disputes also affect whether
    either of those existed at this point in the interaction (before Hardigree retreated into the home).
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    USCA11 Case: 19-13352           Date Filed: 04/06/2021        Page: 25 of 31
    C. Battery
    A simple battery is committed when someone “[i]ntentionally makes
    physical contact of an insulting or provoking nature with the person of another.”
    O.C.G.A. § 16-5-23(a)(1). Lofton claims that Hardigree shoved him after Lofton
    entered the home. But Hardigree disputes this fact, saying he never shoved or even
    touched Lofton. Under Hardigree’s version of the facts, there is no arguable
    probable cause to support an arrest for battery. We cannot weigh their conflicting
    testimony at this stage. Carlin Commc’n, Inc., 
    802 F.2d at 1356
    . Summary
    judgment must be denied.
    VI. Excessive Force Claim
    Lofton contends that the district court erred by denying him summary
    judgment on Hardigree’s excessive force claim. 7 He argues that his use of force
    was justified because Hardigree attempted to flee, did not comply with his
    commands, and Lofton was not familiar with his circumstances. We disagree with
    7
    Lofton also contends that an excessive force claim only exists if Lofton had arguable probable
    cause to arrest. See Bashir v. Rockdale County, 
    445 F.3d 1323
    , 1332 (11th Cir. 2006) (“[W]here
    an excessive force claim is predicated solely on allegations the arresting officer lacked the power
    to make an arrest, the excessive force claim is entirely derivative of, and is subsumed within, the
    unlawful arrest claim.”). But here, Hardigree argues not only that any force was excessive
    because of the lack of probable cause, but also that even if there was probable cause, the force
    was constitutionally unreasonable. Because the question of arguable probable cause has not been
    answered and Hardigree also asserts an independent claim, we cannot say this claim is subsumed
    by the unlawful arrest claims.
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    USCA11 Case: 19-13352       Date Filed: 04/06/2021    Page: 26 of 31
    Lofton and affirm the district court’s denial of summary judgment to Lofton on the
    excessive force claim.
    The Fourth Amendment’s freedom from unreasonable seizures includes the
    “right to be free from the use of excessive force in the course of an arrest.”
    Ferraro, 
    284 F.3d at 1197
    . To determine whether the force used was reasonable, a
    court must carefully balance “the nature and quality of the intrusion on the
    individual’s Fourth Amendment interests against the countervailing governmental
    interests at stake.” Graham v. Connor, 
    490 U.S. 386
    , 396 (1989) (internal
    quotation marks omitted). The inquiry is objective. See 
    id. at 397
    .
    A number of factors can contribute to this determination: the “severity of the
    crime at issue, whether the suspect poses an immediate threat to the safety of the
    officers or others, and whether he is actively resisting arrest or attempting to evade
    arrest by flight.” 
    Id. at 396
    . Additionally, courts can consider if the person subject
    to force is violent or dangerous, the possibility that they may be armed, “and the
    number of persons with whom the police officers must contend at one time.”
    Jackson v. Sauls, 
    206 F.3d 1156
    , 1170 n.18 (11th Cir. 2000). A court must view
    the use of force “from the perspective of a reasonable officer on the scene.”
    Graham, 
    490 U.S. at 396
    . Finally, courts must view the interaction with the
    understanding that “officers are often forced to make split-second judgments—in
    26
    USCA11 Case: 19-13352       Date Filed: 04/06/2021    Page: 27 of 31
    circumstances that are tense, uncertain, and rapidly evolving—about the amount of
    force that is necessary in a particular situation.” 
    Id. at 397
    .
    Again, the facts here are disputed. Hardigree contends that he did not resist
    being put in handcuffs, shove or touch Lofton, or square up to fight. Rather, he can
    be heard on the audio recording pleading not to be tasered again.
    We must consider what an objectively reasonable officer in Lofton’s
    situation would have believed, taking as true Hardigree’s testimony. See Brown v.
    City of Huntsville, 
    608 F.3d 724
    , 739 (11th Cir. 2010). Repeated uses of the taser
    through the prongs and again in drive stun mode on or around Hardigree’s genitals
    would be excessive. Certainly, once Hardigree was on the ground, immobilized,
    being arrested for a minor incident, and posed no threat, Lofton’s decision to again
    deploy the taser would be excessive force that violated Hardigree’s constitutional
    rights.
    It is clearly established that “[u]nprovoked force against a non-hostile and
    non-violent suspect who has not disobeyed instructions” violates a person’s Fourth
    Amendment right. See Fils, 
    647 F.3d at 1289, 1292
     (holding that officers should
    have known that tasering a suspect who “committed at most a minor offense; [ ]
    did not resist arrest; [and] did not threaten anyone” violated the Fourth
    Amendment). The district court was correct to deny summary judgment on this
    claim.
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    USCA11 Case: 19-13352       Date Filed: 04/06/2021   Page: 28 of 31
    VII. State Law Claims
    Hardigree also brought four state law claims against Lofton: false
    imprisonment, malicious prosecution, assault, and battery. Lofton argues that the
    district court erred in denying him summary judgment on these claims based on the
    merits, or alternatively based on official immunity.
    Lofton’s only argument for summary judgment on the merits of these claims
    is that he had probable cause or arguable probable cause. The essential elements of
    false imprisonment in Georgia “are [an] arrest or [a] detention and the
    unlawfulness thereof.” Kline v. KDB, Inc., 
    673 S.E.2d 516
    , 518 (Ga. Ct. App.
    2009). In the context of a warrantless arrest, probable cause and an exception to the
    warrant requirement (like the offense being committed in the officer’s presence)
    are required for the arrest to be lawful. See Collins v. Sadlo, 
    306 S.E.2d 390
    , 391–
    92 (Ga. Ct. App. 1983); O.C.G.A. § 17-4-20(a)(2)(A). Because the alleged events
    happened in front of Lofton, a showing of probable cause would defeat Hardigree’s
    false imprisonment claim. It would also defeat the malicious prosecution claim.
    See O.C.G.A. § 51-7-40 (defining malicious prosecution in part as a criminal
    prosecution carried on “without any probable cause”).
    Similarly, Lofton argues that if he had probable cause to make a lawful
    arrest, he would be entitled to summary judgment on the assault and battery claims
    because an officer is entitled to use force reasonably necessary to effectuate an
    28
    USCA11 Case: 19-13352       Date Filed: 04/06/2021    Page: 29 of 31
    arrest. See Mayfield v. State, 
    623 S.E.2d 725
    , 727 (Ga. Ct. App. 2005). Because
    probable cause and arguable probable cause depend on disputes of material fact, as
    explained throughout this opinion, summary judgment is improper on the merits of
    these claims.
    However, Lofton also contends that he is entitled to official immunity at this
    juncture. In Georgia, a government official “may be liable for injuries and damages
    if they act with actual malice or with actual intent to cause injury in the
    performance of their official functions.” Ga. Const. art. 1, § 2, ¶ IX(d). There is no
    dispute here that Lofton was performing discretionary duties as a state official
    during his encounter with Hardigree. Thus, the only question is whether Lofton
    acted with actual malice or intent to cause injury. Actual malice, in this context,
    “requires a deliberate intention to do wrong.” Adams v. Hazelwood, 
    520 S.E.2d 896
    , 898 (Ga. 1999). Proof of ill will alone is not enough. 
    Id.
    Hardigree offers several facts to support his allegations of actual malice.
    Most notably, in his deposition, Lofton testified that he did not have probable
    cause to arrest Hardigree when he entered the house, but that he entered anyway.
    Additionally, Lofton tasered Hardigree in the penis with the prongs from a short
    distance, and then again tasered him in his upper, inner thigh in drive stun mode
    after Hardigree had stopped moving. Hardigree also asserts that Lofton lied about
    Hardigree pushing him and resisting arrest, and then arrested him without any
    29
    USCA11 Case: 19-13352        Date Filed: 04/06/2021   Page: 30 of 31
    conceivable basis for doing so. Hardigree cites to a case where official immunity
    was denied when a jury could find that an officer acted with “knowledge that [a
    suspect] had not committed the crimes for which they accused her.” See Bateast v.
    Dekalb County, 
    572 S.E.2d 756
    , 758 (Ga. Ct. App. 2002).
    At this stage, Hardigree has asserted enough facts to allow a jury to find that
    Lofton intended to do wrong when he continually tasered Hardigree in the groin
    and arrested him on charges that, according to Hardigree, had no basis. Because a
    jury could find malice, the district court was correct to deny official immunity to
    Lofton.
    VIII. Conclusion
    In conclusion, the district court erred by granting summary judgment to
    Hardigree on unlawful entry. But taking the facts in the light most favorable to
    Hardigree, the district court correctly denied summary judgment, qualified
    immunity, and state law immunity to Lofton on that claim and the remaining
    claims. Lofton and Hardigree offer very different versions of the interaction. These
    questions belong in front of a jury.
    REVERSED IN PART; AFFIRMED IN PART.
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    ANDERSON, Circuit Judge, concurring:
    I concur in the result.
    31