The Eleventh Circuit rejected Austin Gates’ federal civil rights claim against three City of Atlanta Police officers for arresting him without probable cause during a protest in downtown Atlanta. Gates claimed the arrest was in violation of the Fourth and First Amendments of the Constitution as well as various Georgia state court laws. Gates participated in a march protesting a grand jury’s decision not to file charges in the Ferguson, Missouri police-shooting. During the protest he was given a “V for Vendetta” mask by another protester. The mask was a stylized image of the Guy Fawkes character from the movie “V for Vendetta” and designed to cover the entire face. He and other protesters wore the same masks to express his disagreement with the grand jury’s decision and to maintain anonymity during the protest. At some point during the protest Defendant police chief Whitmire ordered the protesters to remove their masks multiple times over a loudspeaker and warned that any mask-wearing protesters would be arrested. After the warning, Whitmore issued orders to arrest any protesters wearing masks and the plaintiff was arrested. When asked why he was being arrested, the defendant officer did not immediately respond and after conferring with other officers, he was told the arrest was for wearing a mask. Gates followed with this complaint against the City and the officers pursuant to section 1983.
The district determined that the defendant officers lacked arguable probable cause to arrest the defendant under the elements of the Georgia mask law because the law imposed a mens rea element that the wearer of the mask know or reasonably know that his actions give rise to a reasonable apprehension or intimidation, threats, or impending violence.
The appellate court disagreed with the plaintiff’s civil rights lawyer concluding that the defendants had actual probable cause to arrest plaintiff Gates for violating Georgia’s mask statute. But even if they lacked actual probable cause, the court found they had arguable probable cause under the circumstances alleged in the complaint.
Viewing the facts in a light most favorable to the plaintiff, the defendant officers were on the public streets of Atlanta as a crowd of demonstrators marched peacefully in protest of the decision in Ferguson, Missouri. Some wore masks that covered the entire face concealing the identity of the wearer. At one point the police began ordering the protesters to disperse and issued repeated orders for protesters to remove their masks or be subject to arrest. The plaintiff was arrested while still wearing the mask as he continued to march on public property.
The court noted that arguable probable cause does not require proving every element of a crime. Given the circumstances an objectively reasonable officer in the defendants’ position could have believed that the plaintiff was either actually trying to intimidate or reasonably would have known that his conduct would provoke a reasonable apprehension that he was doing so, which is the intent element of the statute according to a prior Georgia Supreme Court case decision. The court found also that the defendants had not violated a clearly established right. Therefore, the defendants prevailed in this federal civil rights section 1983 claim because they were entitled to qualified immunity .
In a well written dissent, District Court Judge Kathleen Williams (sitting by designations) argued that nothing in the plaintiff’s complaint supports a finding that a reasonable officer could have believed Gates’ conduct evidenced an intent to threaten or intimidate as required by the anti-mask law.