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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12529
________________________
D.C. Docket No. 5:12-cv-00209-LJA

DAVID CARTER,
CLAYTON GRAHAM, JR.,
MITCHELL WEBSTER,
Plaintiffs - Appellees,
versus
BUTTS COUNTY, GEORGIA, et al.,
Defendants,
TIMOTHY FILBECK,
Individually and in his Official Capacity,

Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 3, 2016)

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Before TJOFLAT and ROSENBAUM, Circuit Judges, and GOLDBERG, * District
Judge.
ROSENBAUM, Circuit Judge:
Defendant-Appellant Timothy Filbeck was a lieutenant with the Butts
County Sheriff’s Office. When his house was foreclosed upon, he, like anyone
else who has been through foreclosure, had certain options available to him. But
arresting the new owner’s agents, Plaintiffs-Appellees David Carter, Clayton
Graham, Jr., and Mitchell Webster (collectively, “Plaintiffs”), who were lawfully
performing their jobs, was not one of them. And neither was ordering Plaintiffs
handcuffed and thrown in jail overnight. We think that should go without saying.
Yet Filbeck did these things, anyway. Now Filbeck tries to convince us that he is
immune from suit. We are not persuaded. Being a law-enforcement officer is not
a license to break the law. And it is certainly not a shield behind which Filbeck
may abuse his power with impunity.
I.
Filbeck worked as a deputy sheriff with the Butts County Sheriff’s Office.
In the Spring of 2005, he and his wife bought a home (the “Property”) for
themselves. In connection with the purchase, Filbeck executed a Security Deed,
which authorized the mortgage owner to enter the property to protect its interests if

*

Honorable Richard W. Goldberg, United States Court of International Trade, sitting by
designation.
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Filbeck abandoned the Property. 1 At the time relevant to this appeal, Ocwen Loan
Servicing LLC (“Ocwen”) was the mortgage holder with respect to the Property.
In July 2010, the Filbecks fell behind on their mortgage and defaulted on the
loan. Ocwen notified the Filbecks of their default and informed them that it was
opting to accelerate their loan, causing the entire amount of the outstanding
balance of the mortgage to become due. In addition, Ocwen advised the Filbecks
that it intended to sell the Property at a foreclosure sale. In September 2010,
Ocwen initiated foreclosure proceedings on the Property.
By letters dated September 22, 2010, and November 22, 2010, Ocwen
notified the Filbecks of the impending foreclosure. Attached to the letters were
Notices of Sale, which stated that the Property was scheduled to be sold on the first
Tuesday in January 2011.

Ocwen arranged for these Notices of Sale to be

published in the local paper in December 2010. Filbeck acknowledged that he
received the letters and saw the Notices.
In response to the foreclosure proceedings, in early November 2010, the
Filbecks moved out of the Property and into a family member’s home. They ate,
1

The Security Deed provided,
If . . . (c) Borrower has abandoned the Property, then the Lender
may do and pay for whatever is reasonable or appropriate to
protect Lender’s interest in the Property . . . including protecting
and/or assessing the value of the Property, and securing and/or
repairing the Property (as set forth below). . . . Securing the
Property includes, but is not limited to, making repairs, replacing
doors and windows, draining water from pipes, and eliminating
building violations or dangerous conditions.
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slept, and began receiving mail there. In November 2010, all utilities (electric,
water, and sewer) on the Property had been turned off. Ultimately, the Property
was foreclosed upon on January 4, 2011, and conveyed to U.S. Bank National
Association, by and through Ocwen, its duly appointed attorney-in-fact. Nothing
in the record suggests that the Filbecks ever sought to challenge the foreclosure.
But Filbeck claims that he was unaware that the foreclosure proceedings had been
finalized.
In the meantime, in mid-December 2010, Altisource Portfolio Solutions
(“Altisource”), Ocwen’s agent and property manager, contracted with MD
Maintenance, LLC (“MDM”), to prepare the Property for resale. Danny and Tina
Carter,2 who own MDM, explained that their standard procedure for preparing a
foreclosed home for resale includes first determining whether the home is still
occupied or whether, instead, it has been abandoned. If the home is still occupied,
MDM notifies Altisource, which then initiates eviction proceedings. But if the
home has been abandoned, MDM enters the home, changes the locks, takes
pictures, cleans out the home, and repairs any damage. MDM also places signs on
the home that state that the property is under the supervision of Ocwen, note that
MDM is the authorized representative of Ocwen, and provide contact information

2

Because Plaintiff David shares the last name “Carter” with Danny and Tina Carter, as
well as with Greg Carter, another witness in the case, we refer to the Carters by their first names
to avoid confusion.
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for MDM in case a reader needs to access the property or report a problem (the
“MDM Notice”). MDM followed this standard procedure with respect to the
Filbecks’ home.
Between December 12, 2010, and January 15, 2011, MDM’s representatives
visited the Property about four times to verify that no one resided in the home.
Although MDM found some personal items left by the Filbecks, it found no one
living at the Property. The heat and electricity were turned off, and “cobwebs
[extended] from wall to wall in almost every room.” MDM established that the
utilities on the Property had been discontinued in November 2010. Tina also
personally spoke with a neighbor of the Filbecks who confirmed that no one was
living at the Property. Against this background, MDM concluded that the Property
had been abandoned.
Around January 18, 2011, Danny and other MDM employees arrived at the
Property to begin preparing it for resale. During the visit, the men posted the
MDM Notice on the front door. One of the men took a picture of the MDM Notice
and sent it to Altisource. Eleven days later, when Graham, along with other MDM
employees, returned to the Property to continue cleaning it out, the MDM Notice
was still affixed to the front door.
The following day, Filbeck visited the Property and discovered that some of
his personal property was missing. Although the MDM Notice was still affixed to
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the front door, Filbeck did not contact anyone at Ocwen, Altisource, or MDM
regarding their entry into the home or the removal of any property. 3
Instead, Filbeck boarded up the windows, nailed the doors shut, and placed
four signs reading “KEEP OUT” on the Property. Filbeck also prepared and filed a
police report using fellow deputy Kenneth Mundy’s name 4 and submitted a claim
to Liberty Mutual Insurance for the missing property. 5

When Mundy later

discovered the police report, he demanded that his name be removed from it and
insisted that he had not prepared it, authorized it, or known anything about it at the
time that it was submitted.
On January 31, 2011, Graham and Greg returned to the Property to continue
their maintenance efforts. When they arrived, they discovered that the windows
had been boarded, the doors nailed shut, and the MDM Notice had been removed
and replaced by the “KEEP OUT” signs. Greg reported the circumstances to Tina,
who, in turn, called Altisource to confirm that the Property had been foreclosed
upon and that MDM was authorized to be there. Altisource assured her that
3

Filbeck contended that he never saw the notices affixed to the front door of the
Property. But Filbeck admitted to Tina that he had seen the MDM Notice posted on the
Property. According to Tina, Filbeck said that he tore down the MDM Notice and that it was not
worth “shit.” Graham similarly attested that Filbeck admitted in his presence to ripping the
Notice off the Property. Since we are reviewing Filbeck’s motion for summary judgment, we
construe the facts in the light most favorable to Plaintiffs and accept the statements of Tina and
Graham. See Bashir v. Rockdale Cty., 445 F.3d 1323, 1326-27 (11th Cir. 2006).
4
Filbeck told Mundy that he did not “feel right” taking the report on his own home and
thought it was alright for him to make the report in Mundy’s name.
5

Liberty Mutual subsequently made a $7,785.11 payment to satisfy the claim.
6

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everything was proper but suggested that she call the police to inform them of what
had occurred.
So Tina called the Butts County Sheriff’s Office, explained the situation to
the dispatcher, and requested that an officer visit the Property. Officer Thomas
Middleton arrived with another officer, and Greg explained to them that the
Property had been foreclosed upon by Ocwen, who, in turn, had hired MDM to
prepare the Property for resale. After Middleton looked around the Property and
concluded that no one was living there, he left the Property without incident.
Later, Middleton told Filbeck about his visit to the Property. In the course
of their conversation, Middleton informed Filbeck that he had seen paperwork that
appeared to authorize the entry into and cleaning out of the Property. A few weeks
later, on the morning of February 22, 2011, Plaintiffs went to the Property. The
“KEEP OUT” signs were still there. Because the doors remained nailed shut,
Graham and Webster entered the Property through a bathroom window. They
began removing items from the home and placing them on MDM’s trailer, which
was parked on the Property.
While Plaintiffs were working, Filbeck learned they were there and caused
Lieutenant Matthew Vaughan to go to the Property and confront them. 6 When

6

Mundy received a phone call from his father-in-law, who happened to live two houses
away from the Property. Apparently, Filbeck had asked Mundy’s father-in-law to let him know
if anyone showed up at the house. When Mundy’s father-in-law saw the men cleaning out the
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Vaughan arrived, Plaintiffs told him that they were cleaning out a “foreclosure
home.” David Carter gave Vaughan and other deputies who joined Vaughan on
the scene, documentation showing that the Property had been foreclosed upon and
that Plaintiffs were legally authorized to work there. The documentation also
instructed anyone with questions to contact Altisource at a provided phone
number.
Meanwhile, Filbeck arrived on the scene and assumed control of the
investigation.

Upon Filbeck’s arrival, Vaughn handed him a piece of

documentation. 7 David also attempted to show Filbeck an authorization letter on
his phone, but Filbeck refused to review it and retorted that the authorization letter
“and the rest of this paperwork don’t [sic] mean a damn thing.” Filbeck appeared
to be extremely angry, and he cursed and shouted at Plaintiffs.
In an effort to resolve the situation, David called Tina and asked her to speak
with Filbeck. Although Tina tried to explain to Filbeck why MDM was at the
Property, Filbeck refused to listen. Instead, Filbeck insisted that he owned the
house, that MDM had no right to be there, and that the foreclosure was “illegal.”
He also rejected Plaintiffs’ documentation and the MDM Notices posted at the

Property, he called Mundy and told him that men had returned. Mundy relayed the information
to Filbeck, who then instructed him to call Vaughan, the patrol commander. Vaughan responded
to the call.
7

Vaughan testified that he “may have” handed Filbeck a document that he had obtained
from the Plaintiffs. Mundy testified that he saw Vaughan provide Filbeck with a letter.
8

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Property, characterizing them as not worth “shit.”

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Finally, despite Tina’s

continuing attempts to reason with Filbeck, Filbeck rejoined, “Your boys are going
to jail and are staying there until I get my stuff back.” He also threatened to arrest
Tina.8
When Filbeck finished with Tina, he contacted the Clerk of Superior Court
of Butts County to ask whether any eviction notices had been filed or were pending
on the Property. He made the same inquiry of the Butts County Sheriff’s Office
Warrants and Civil Papers Division. After both agencies told Filbeck that no
eviction notices had been filed, Filbeck ordered the arrests of Carter, Graham, and
Webster for burglary.
The officers handcuffed and took Plaintiffs to the Butts County Detention
Center. There, they remained incarcerated for roughly 24 hours before they were
released without any charges filed.
When the officers carted Plaintiffs off to jail, the Butts County Sheriff’s
Office confiscated two cameras, silverware, and $20.00 in cash. MDM had used
the cameras to take pictures of the Property.
Filbeck later admitted that he had accessed MDM’s impounded vehicle,
retrieved a camera, and downloaded pictures onto his computer without a warrant

8

Though Filbeck claims that he never spoke with Tina on February 22, his own
colleague, Mundy, contradicted him.
9

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or authorization while the men were stuck in jail. The cameras, silverware, and
$20.00 in cash were never returned, despite demands for return of the property.
II.
Plaintiffs filed suit against Filbeck and Butts County Sheriff Gene Pope,
individually and in their official capacities. They also sued Butts County, Georgia.
In their complaint, Plaintiffs asserted a claim, against all Defendants, under 42
U.S.C. § 1983 for violation of Plaintiffs’ Fourth Amendment right to be free from
unreasonable searches and seizures. Besides the § 1983 claim, Plaintiffs alleged
conversion against all Defendants. Against just Pope and Butts County, Plaintiffs
averred causes of action for negligent hiring and retention and for ratification.
Defendants moved for summary judgment on all claims. With respect to the
§ 1983 claim, Filbeck asserted qualified immunity. The district court denied
summary judgment on the § 1983 claim against Filbeck, finding that he was not
entitled to qualified immunity.

It also denied summary judgment for all

Defendants on the conversion claim. As for all remaining claims, the district court
granted summary judgment.
Defendants now appeal all adverse summary-judgment rulings against them.
III.
We review de novo a district court’s denial of a motion for summary
judgment on qualified immunity grounds. Fils v. City of Aventura, 647 F.3d 1272,
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1287 (11th Cir. 2011). Summary judgment is appropriate only when the moving
party demonstrates that no disputed issue of material fact exists. Id. At this stage,
the Court “accept[s] the Plaintiffs’ version of the facts and draw[s] all justifiable
inferences in their favor.”

Id. (citation omitted).

The Court does not make

credibility determinations or choose between conflicting testimony. Bozeman v.
Orum, 422 F.3d 1265, 1267-68 (11th Cir. 2005) (per curiam). Instead, this Court
“resolve[s] all issues of material fact in favor of the plaintiff, and then determine[s]
the legal question of whether the defendant is entitled to qualified immunity under
that version of the facts.” Bashir, 445 F.3d at 1326-27. In making a qualified
immunity determination, this Court similarly reviews the facts in the light most
favorable to the Plaintiffs. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.
2007).
IV.
A. § 1983 Claim
We begin our review with the district court’s denial of qualified immunity
for Filbeck.

Qualified immunity protects police officers from suit in their

individual capacities for discretionary actions performed in the course of their
duties. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009);
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). It serves
the purpose of allowing “government officials to carry out their discretionary
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duties without the fear of personal liability or harassing litigation.” Durruthy v.
Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003) (citation omitted). Under qualified
immunity, “all but the plainly incompetent or one who is knowingly violating the
federal law” are shielded from litigation. Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002). Qualified immunity “does not offer protection if an official knew
or reasonably should have known that the action he took within his sphere of
official responsibility would violate the constitutional rights of the [plaintiff].”
Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir. 2003) (quoting Harlow, 457
U.S. at 815, 102 S. Ct. at 2737 (internal quotation marks omitted) (alteration
provided by Holmes)).
An official like Filbeck, who asserts entitlement to qualified immunity, must
first establish that he was acting within the scope of his discretionary authority.
Once he shows that, the burden shifts to the plaintiff to demonstrate that qualified
immunity is inappropriate. Lee, 284 F.3d at 1194. Overcoming the official’s
qualified-immunity defense requires a plaintiff to establish both that the officer’s
conduct violated a constitutionally protected right and that the right was clearly
established at the time of the misconduct. Pearson, 555 U.S. at 232, 129 S. Ct. at
816; Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010). We may
consider whether the plaintiff has satisfied his burden in any order. Pearson, 555
U.S. at 236, 129 S. Ct. at 818.
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Here, the parties agree that Filbeck was acting within the scope of his
discretionary authority as a police officer at the time of the incident. So we turn to
whether Plaintiffs showed that Filbeck violated Plaintiffs’ constitutional rights
when he arrested them and whether those rights were clearly established at the time
of the arrests.
The parties do not quarrel over the applicable law. Where an officer orders
the arrest of an individual, he may be liable for a Fourth Amendment violation.
See Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir. 2007).

The Fourth

Amendment guarantees “[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. An arrest is a seizure, and we assess the reasonableness of an
arrest by the presence of probable cause for the arrest. Skop, 485 F.3d at 1137. By
now it is well established that “[a] warrantless arrest without probable cause
violates the Fourth Amendment and forms a basis for a section 1983 claim.”
Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996). But where probable
cause supports an arrest, it acts as “an absolute bar to a section 1983 action for
false arrest.” Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004)
(citation omitted).
Probable cause to arrest exists if “the facts and circumstances within the
officer’s knowledge, of which he has reasonably trustworthy information, would
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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 marks and citation omitted). We assess probable cause based on the
“totality of the circumstances.” Id.; Skop, 485 F.3d at 1137.
If an officer lacked probable cause to arrest, we must consider whether
arguable probable cause supported the arrest at the time. See Case v. Eslinger, 555
F.3d 1317, 1326-27 (11th Cir. 2009). If so, the officer is still entitled to qualified
immunity, even in the absence of actual probable cause. Id. (citing Lee, 284 F.3d
at 1195); Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (per curiam).
As the Supreme Court has explained, “it is inevitable that law enforcement
officials will in some cases reasonably but mistakenly conclude that probable cause
is present, and . . . in such cases those officials . . . should not be held personally
liable.” Anderson v. Creighton, 483 U.S. 635, 641 107 S. Ct. 3034, 3039-40
(1987).
An officer has arguable probable cause to arrest “where reasonable officers
in the same circumstances and possessing the same knowledge as the Defendant
could have believed that probable cause existed to arrest.” Id. (citations and
internal quotation marks omitted). To determine whether an officer had arguable
probable cause, we ask “‘whether the officer’s actions are objectively reasonable . .
. regardless of the officer's underlying intent or motivation.’” Lee, 284 F.3d at
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1195 (quoting Vaughan v. Cox, 264 F.3d 1027, 1036 (11th Cir. 2001)). This
standard does not shield officers who unreasonably conclude that probable cause
exists. Skop, 485 F.3d at 1137. Where an officer arrests without even arguable
probable cause, he violates the arrestee’s clearly established Fourth Amendment
right to be free from unreasonable seizures. See Case, 555 F.3d at 1327 (11th Cir.
2009).
In evaluating whether arguable probable cause supported an arrest, we apply
this objective reasonableness standard to the facts as they relate to the elements of
the alleged crime for which the plaintiff was arrested. See Skop, 485 F.3d at 113738 (citing Crosby v. Monroe Cty., 394 F.3d 1328, 1333 (11th Cir. 2004)). Filbeck
contends that he had probable cause to arrest Plaintiffs for three crimes: burglary,
criminal trespass, and theft by taking. If probable cause or arguable probable cause
supported the arrest of Plaintiffs for any of these three crimes, Filbeck is entitled to
qualified immunity. So we consider the facts as they relate to the elements of each
of these three crimes.
We begin with burglary. Under Georgia law, as relevant here, a person
commits first-degree burglary when, “without authority and with the intent to
commit a felony or theft therein, he . . . enters or remains within an occupied,
unoccupied, or vacant dwelling house of another or any building . . . designed for
use as a dwelling of another.”

See O.C.G.A. § 16-7-1(b) (emphasis added).
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Second-degree burglary occurs when the structure entered or remained in is not the
dwelling of another. See O.C.G.A. § 16-7-1(c).
As for criminal trespass, as possibly relevant in this case, a person violates
the law if he “knowingly and maliciously interferes with the possession or use of
the property of another person without consent of that person.” O.C.G.A. § 16-721(a) (emphasis added).

Alternatively, a person commits this offense if he

“knowingly and without authority” either “[e]nters upon the land or premises of
another person . . . for an unlawful purpose,” O.C.G.A. § 16-7-21(b)(1) (emphasis
added), or “[e]nters upon the land or premises of another person . . . after
receiving, prior to such entry, notice from the owner [or] rightful occupant . . . that
such entry is forbidden . . . ,” O.C.G.A. § 16-7-21(b)(2) (emphasis added).
Finally, a person commits the offense of theft if he “unlawfully takes or,
being in lawful possession thereof, unlawfully appropriates any property of another
with the intention of depriving him of the property, regardless of the manner in
which the property is taken or appropriated.” See O.C.G.A. § 16-8-2 (emphasis
added).
The common thread running through all of these offenses is a lack of
authority: a lack of authority to be at or inside the Property and a lack of authority
to remove the Property’s contents.

So our analysis of whether Filbeck had

arguable probable cause to arrest Plaintiffs for any or all of these crimes
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necessarily focuses on whether a reasonable officer in Filbeck’s position should
have known that Plaintiffs were authorized to prepare the Property for sale
following the foreclosure. Case, 555 F.3d at 1327 (we review the officer’s conduct
based on all the information available to him). Because a reasonable officer should
have known both that Plaintiffs were authorized to enter the Property and that they
were authorized to remove its contents, Filbeck lacked even arguable probable
cause for his arrests of Plaintiffs.
Indeed, before Filbeck ever arrived at the Property on February 22, he knew
that MDM was authorized to enter and clean out the Property. He knew this from
at least two different sources. First, he admitted that he tore down the MDM
Notice from the Property before boarding the Property up and placing “KEEP
OUT” signs on it around January 19. The MDM Notice expressly stated that the
house was foreclosed upon, that Ocwen and Altisource controlled the property,9
and that anyone with questions or who needed access to the house, should contact
MDM at a designated phone number. From the MDM Notice alone, Filbeck had
enough information to know that Plaintiffs, MDM employees, were not engaged in
burglary, criminal trespass, or theft on February 22.
9

Filbeck had also agreed in his Security Deed that, upon his abandonment of the
Property, Ocwen could “do . . . whatever is reasonable or appropriate to protect Lender’s interest
in the Property,” including entering, securing, and repairing it. And Filbeck admitted receiving
Ocwen’s notices of foreclosure and seeing Ocwen’s advertisements advertising the sale of the
Property at foreclosure. In fact, he conceded that he left the Property in November 2010 at least
in part because of the foreclosure. Tina also attested that Filbeck admitted to her on the phone
on February 22 that he knew of the foreclosure.
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own

law-enforcement

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colleague,

Middleton,

independently told him that MDM’s paperwork appeared to be in order when,
before the February 22 incident, he informed Filbeck about his interaction with
David at the Property on January 31, 2011.
As if that were not enough, on February 22 at the time of the arrests,
Plaintiffs also attempted to provide Filbeck with everything he needed to know in
order to conclude that Plaintiffs were authorized to be at the Property and to clean
it out and that, as a result, he lacked probable cause to arrest them. 10 David
presented documentation to Vaughan demonstrating Plaintiffs’ authorization to
enter and clean out the Property. And Mundy testified that he saw Vaughan give
documentation to Filbeck. Filbeck’s refusal even to look at it does not somehow
excuse any ignorance he now claims to have had of its contents. A police officer
may not “conduct an investigation in a biased fashion or elect not to obtain easily
discoverable facts.” Kingsland, 382 F.3d at 1229 (internal quotation marks and
citations omitted). Nor may an officer “choose to ignore information that has been
offered to him or her.” Id. Here, it is clear that no reasonable officer with the
information that was readily available to Filbeck at the time he arrested Plaintiffs

10

For this reason, Filbeck’s reliance on various cases involving criminal defendants who
had illegally entered the premises, without any authorization at all, is entirely misplaced. See,
e.g., Harrison v. Georgia, 74 Ga. 801 (1885), and Davis v. State, 706 S.E.2d 710 (Ga. Ct. App.
2011). Here, Plaintiffs were clearly authorized to enter the Property.
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could have believed that he had probable cause to arrest them for burglary,
criminal trespass, or theft. 11
Instead, a jury could reasonably conclude that Filbeck arrested Plaintiffs to
retaliate against them for Ocwen’s lawful foreclosure upon and clean-up of
Filbeck’s former home. See, e.g., Motes v. Myers, 810 F.2d 1055 (11th Cir. 1987)
(reversing summary judgment in favor of officers and recognizing cause of action
under § 1983 for false arrest and imprisonment motivated by the desire to settle a
private dispute).

As we have previously explained, “The principles behind

qualified immunity would be rendered meaningless if such immunity could be
invoked to shelter officers who, because of their own interests, allegedly flout the
law, abuse their authority, and deliberately imperil those they are employed to
serve and protect.” Kingsland, 382 F.3d at 1234. If a jury believes Plaintiffs’
evidence, it will necessarily find that Filbeck did just that—flout the law and abuse
his authority because of his own interests.

Qualified immunity is neither

appropriate nor available under these circumstances.
Filbeck attempts to explain and excuse his behavior by claiming that he was
a tenant at sufferance at the Property, meaning that Ocwen and its agents legally

11

In fact, Mundy and Vaughn, other deputies who were present when Filbeck arrested
Plaintiffs, expressed their view to each other (though not to Filbeck) that no arrests should have
been made, and Mundy characterized the investigators who were present during the arrests, as
“hesitant.”
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could not have entered and cleaned out the Property without first evicting Filbeck.
We do not agree.
It is true that under Georgia law, “[w]here former owners of real property
remain in possession after a foreclosure sale, they become tenants at sufferance.”
Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843, 848 (Ga. Ct. App. 2009). When
this occurs, a landlord-tenant relationship exists between the legal title holder and a
tenant at sufferance, and dispossessory procedures set forth in O.C.G.A. § 44-7-50
provide the exclusive method by which a landlord may evict the tenant. Steed, 689
S.E.2d at 848.
But, significantly, when former owners of real property relinquish
possession of the property at some point after the foreclosure sale, they cease being
tenants at sufferance. Id. And if they later reenter the property, they are not tenants
at sufferance; instead, their status becomes that of intruders. Id. Georgia courts
have explained that the legal title holder need not follow the procedures articulated
in O.C.G.A. § 44-7-50 when former owners are intruders. Id.
On this record, a reasonable jury could easily find that the Filbecks
abandoned the Property in November 2010. By February 22, the Filbecks had not
lived at the Property for nearly four months. Instead, they lived with family
members at another address, where they received their mail. The Property lacked
electricity and water service beginning in November, and cobwebs enveloped
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almost every room. Filbeck’s fellow officer Middleton concluded no one lived at
the Property when he visited on January 31. And Filbeck’s neighbor separately
confirmed to MDM that no one lived at the Property. Even Filbeck admitted that
he had not resided at the Property since early November 2010.
Nor do Filbeck’s January 19 actions in tearing down the MDM Notices and
boarding up the windows, nailing the doors shut, and posting “KEEP OUT” signs
somehow change the fact that he abandoned the Property three months earlier.
Instead, they made him an intruder. See Steed, 689 S.E.2d at 848. Significantly,
Filbeck never contacted Ocwen or otherwise attempted to challenge the
foreclosure. Rather, he simply moved out. In short, a jury could reasonably
conclude on this record that Filbeck was never a tenant at sufferance after the
foreclosure had been finalized, and he—not Plaintiffs—was the intruder on
February 22.
For these reasons, we affirm the district court’s denial of summary judgment
to Filbeck on qualified-immunity grounds.
B. Conversion Claim
In addition to the § 1983 claim, Plaintiffs also alleged that $20.00, two
cameras, and silverware were taken from their truck at the time of their arrest and
were never returned to them. On appeal, the County and Sheriff Pope contend that
the district court erred in not granting them summary judgment on the conversion
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claim, as sovereign immunity allegedly protects them. The County and Sheriff
Pope, along with Filbeck, also assert that the district court erred substantively in
denying their motion for summary judgment because Plaintiffs (1) did not
demonstrate proof of ownership of the items they claim were taken, (2) did not
allege that any Defendants ever possessed the property, and (3) did not aver that
Defendants refused to return the property.
We first address the issue of sovereign immunity. In Georgia, “sovereign
immunity extends to the state and all of its departments and agencies.” Ga. Const.
art. I § 2, ¶ IX; Gilbert v. Richardson, 452 S.E.2d 476, 479 (Ga. 1994). This
includes sheriffs and counties. Id. A defendant sued in his official capacity is
entitled to the benefit of the sovereign-immunity defense, but only to the extent
that the County has not waived it. Id. at 754. As a result, both the County and
Sheriff Pope are entitled to sovereign immunity against the state-law tort of
conversion unless Plaintiffs can show that sovereign immunity has been waived.
See Seay v. Cleveland, 508 S.E.2d 159, 161 (Ga. 1998); Bd. of Regents of the Univ.
Sys. of Ga. v. Daniels, 446 S.E.2d 735 (Ga. 1994).
Plaintiffs, however, presented no argument or evidence that sovereign
immunity has been waived for the County or Sheriff Pope as to the conversion
claim. And we can find no basis for concluding that sovereign immunity has been
waived.
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In Georgia, sovereign immunity may be waived only if “a statute expressly
provides that sovereign immunity is waived and the extent of such waiver.” Grech
v. Clayton Cty., 335 F.3d 1326, 1341 (11th Cir. 2003) (citing Ga. Const. art. I, § 2,
¶ 9(e)). Here, none does. While the State of Georgia waived its immunity for tort
claims in the Georgia Tort Claim Act, it did so only with respect to Georgia state
employees, not to counties or county employees. See O.C.G.A. § 50-21-23(a)
(“The state waives its sovereign immunity for the torts of state officers and
employees acting within the scope of their official duties or employment.”)
(emphasis added); see also Lill v. Deal, No. CV 212-175, 2014 WL 3697356 at *8
(S.D. Ga. July 23, 2014), aff’d sub nom. Lill v. Governor of Ga., 604 F. App’x 911
(11th Cir. 2015). As a result, the Act’s sovereign-immunity waiver does not
extend to a county. Woodard v. Laurens Cty., 456 S.E.2d 581, 582 (Ga. 1995);
DeKalb Cty. Sch. Dist. v. Gold, 734 S.E.2d 466, 474 n.51 (Ga. Ct. App. 2012),
overruled on other grounds by Rivera v. Washington, Nos. S15Go887, S15Go912,
___ S.E.2d___, 2016 WL 1190390, *5 n.7 (Ga. Mar. 25, 2016).
And while Georgia law allows a county to waive immunity through the
purchase of liability insurance for which the defense of sovereign immunity would
otherwise have been available, see O.C.G.A. § 36-33-1, the record contains no
evidence that the County has, in fact, purchased liability insurance that would
waive sovereign immunity. The burden of demonstrating a waiver of sovereign
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immunity falls on the party seeking to benefit from it. See Smith v. Chatham Cty.,
591 S.E.2d 388, 389 (Ga. Ct. App. 2003). Because Plaintiffs have not satisfied this
burden, the County and Sheriff Pope were entitled to summary judgment on the
conversion claim.
As for the conversion claim brought against Filbeck individually, as we have
noted, Filbeck argues that he is entitled to summary judgment because Plaintiffs
failed to establish the necessary elements of the claim. Georgia codified the
common-law action of conversion at O.C.G.A. § 51-10-1. Georgia courts have
construed § 51-10-1 as authorizing the “recovery of damages when a government
official, without lawful authority, deprives an individual of his or her property on
even a temporary basis.” See Romano v. Ga. Dep’t of Corr., 693 S.E.2d 521, 524
(Ga. Ct. App. 2010). Typically, in order to establish a claim for conversion under
Georgia law, a plaintiff must prove the following: (1) proof of ownership or title to
the disputed property, or the right to immediate possession of the property; (2)
actual possession of the property by the defendant; (3) demand by the plaintiff for
the return of the property; (4) the defendant's refusal to return the property; and (5)
the value of the property. See Buice v. Campbell, 108 S.E.2d 339, 341 (Ga. Ct.
App. 1959) (citations omitted); Charter Mtg. Co. v. Ahouse, 300 S.E.2d 328, 330
(Ga. Ct. App. 1983) (citation omitted); City of College Park v. Sheraton Savannah
Corp., 509 S.E.2d 371, 374 (Ga. Ct. App. 1998).
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Filbeck contends that Plaintiffs did not sufficiently plead or establish
elements one, two, and four. We disagree.
With respect to the first element, ownership, the Amended Complaint
expressly alleges that Plaintiffs’ “camera, cash and other personal effects” were
“taken . . . by Defendants.” As for evidence, David attested that he owned the
camera that was taken.
Regarding the second element—actual possession by the defendant, David
testified that the camera was in his truck when Filbeck impounded it upon
Plaintiffs’ arrest. And Filbeck implicitly admitted that he actually possessed the
camera at some point when it was in the Sheriff’s Office’s custody, since he
acknowledged that he downloaded the disk from the camera onto his laptop.
Finally, Plaintiffs claim that they made a demand for the return of their
property, and they never received the items back.

But even if they hadn’t

demanded their property back, Georgia courts have recognized that demand and
refusal are not required where a person comes into possession of the property
unlawfully. See Williams v. Nat’l Auto Sales, Inc., 651 S.E.2d 194, 197 (Ga. Ct.
App. 2007). In this case, Filbeck admits that he took the camera without a warrant,
while the car was impounded.

This certainly raises the issue of unlawful

possession. Moreover, the circumstances under which the impounding occurred—
the alleged wrongful arrest of Plaintiffs—only add to the inference of unlawful
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possession. As the district court correctly noted, O.C.G.A. § 51-10-1 authorizes
“recovery of damages when a governmental official, without lawful authority,
deprives an individual of his or her property on even a temporary basis.” See
Romano, 693 S.E.2d at 524.
This evidence, if believed by a jury, could establish a substantive claim of
conversion under Georgia law, against Filbeck. For this reason, the district court
correctly denied summary judgment to Filbeck on the conversion claim.
IV.
In conclusion, we affirm the denial of Filbeck’s motion for summary
judgment based on qualified immunity. We also affirm the denial of Filbeck’s
summary judgment motion as it relates to the conversion claim against him. But
we reverse the denial of summary judgment with respect to the County and Sheriff
Pope on the conversion claim. The matter is remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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