Arresting Someone for Violating a Probation Condition That Doesn't Exist …

would violate the Fourth Amendment, holds the Eleventh Circuit.

A short excerpt from the long Gervin v. Florence, decided yesterday by the Eleventh Circuit (opinion by Judge Robin Rosenbaum, joined by Judges Nancy Abudu and Charles Wilson):

DeShawn Gervin has not been a model citizen. But he did do at least one thing right. As Gervin's sole condition of probation, a Georgia court kicked him out of its jurisdiction and banned him from returning. And Gervin followed that instruction. He moved to North Carolina.

But he didn't stay out of trouble there, either. North Carolina imprisoned Gervin for breaking and entering, larceny, and robbery and kidnapping.

Soon after, a probation officer with the Georgia Department of Community Supervision learned of Gervin's North Carolina transgressions. And she sought a warrant for his arrest in Georgia. In support, she swore that Gervin had "failed to report" and "absconded from probation supervision" in violation of his probation conditions. Another probation officer under her supervision then petitioned to revoke Gervin's probation based on his failure to report.

After the probation officer obtained the warrant, police officers in North Carolina arrested Gervin on the Georgia warrant. Then they extradited Gervin to Georgia. And Gervin spent 104 days in jail waiting for the court to resolve his probation-revocation charges.

But as we've recounted, the Georgia court's only probation condition for Gervin required him never to reenter its judicial circuit. And that's the one thing he had not done. So however else Gervin had broken the law, he had not violated his Georgia probation.

For that reason, the Georgia court concluded that the State failed to show that Gervin had violated his probation. So it ordered Gervin's release.

After his release, Gervin sued the two probation officers under 42 U.S.C. § 1983. He alleged violations of his Fourth, Eighth, and Fourteenth Amendment rights. The probation officers moved for summary judgment, and the district court denied their motion.

We now affirm the district court's ruling. When we view the evidence in the light most favorable to Gervin as the non-moving party, the probation officers recklessly swore that Gervin had violated his Georgia probation, even though it was clear that he had not. That violated Gervin's Fourth and Fourteenth Amendment right to be free from unreasonable seizures because the officers' misconduct caused his arrest and prolonged confinement. And because every reasonable state official would have understood that the Fourth and Fourteenth Amendments prohibit recklessly making false statements and material omissions to obtain an arrest warrant and prosecute a probation violation, the probation officers are not entitled to qualified immunity….

There's more, oh so much more, back to the Statute of Marlborough (1267). Zack Greenamyre (Mitchell Shapiro Greenamyre & Funt LLP) argued on behalf of plaintiffs, and Matthew Cavedon argued on behalf of amicus Cato Institute.