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Eleventh Circuit reverses district court, finds that arresting officers were entitled to qualified immunity in civil rights case for arresting protester wearing Guy Fawkes mask

On March 13, 2018, in Gates v. Khokar, No. 16-15118, the Eleventh Circuit Court of Appeals reversed the district court’s denial of the defendant police officers’ motion to dismiss plaintiff’s 42 U.S.C. Section 1983 complaint against them related to an alleged false arrest without probable cause. The plaintiff had participated in a march in downtown Atlanta protesting the police-shooting in Ferguson Missouri. According to his complaint, he wore a mask during the protest bearing a stylized image of the Guy Fawkes character from the movie “V for Vendetta.” He was arrested after the police announced over a loudspeaker that anyone wearing a mask would be arrested, although he denied having heard the announcement. In considering the defendants’ motion to dismiss on the grounds of qualified and statutory immunity, the district concluded that while the police had probable cause to arrest the plaintiff based on the statutory elements of Georgia’s mask statute, which criminalizes the wearing of masks in public places (subject to certain exceptions), the defendants’ claim failed because of an additional court-imposed mean rea requirement of Georgia law, requiring that the wearer of the mask knew or reasonably should have known that his actions would give rise to a reasonable apprehension of intimidation, threats, or impending violence.

The Eleventh Circuit disagreed, finding that the defendants had reason to feel a reasonable apprehension of intimidation, threats, or impending violence because of the plaintiff’s perceived unwillingness to remove his mask and the association of Guy Fawkes with violence. The Eleventh Circuit noted that a police officer is entitled to qualified immunity even where there is not actual probable if “arguable probable cause” exists, such that a reasonable officer in the same circumstances and possessing the same knowledge as the defendant could have believed probable cause existed. See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002); Redd v. City of Enterprise, 140 F.3d 1378, 1383-1384 (11th Cir. 1998).