Probable Cause for Pedestrian-in-the-Roadway Arrest Bars Fourth and First Amendment Arrest-Claims Absent Objective Nieves Comparator Evidence

Introduction

In Donovan Schilling v. Michael Doherty (11th Cir. Feb. 13, 2026) (unpublished), Donovan Schilling sued Officer Michael Doherty and Captain Kevin Knapp under 42 U.S.C. § 1983 and Georgia law after his arrest during an Atlanta protest concerning the Kentucky grand jury decision in the Breonna Taylor case.

Schilling asserted: (1) unlawful seizure (Fourth Amendment); (2) malicious prosecution (Fourth Amendment); (3) First Amendment retaliation; and (4) Georgia malicious prosecution. The core legal issue across claims was whether the officers had probable cause to arrest Schilling for violating Georgia’s pedestrian-in-the-roadway statute, and—if so—whether any exception allowed the First Amendment retaliation claim to proceed despite probable cause.

Summary of the Opinion

The Eleventh Circuit affirmed summary judgment for the officers. It held that undisputed facts and video evidence established probable cause that Schilling violated Ga. Code Ann. § 40-6-96 (pedestrian in roadway when a sidewalk is available and vehicles are within 1,000 feet). Because probable cause existed:

  • Schilling’s Fourth Amendment unlawful seizure claim failed.
  • His Fourth Amendment malicious prosecution claim failed.
  • His Georgia malicious prosecution claim failed.
  • His First Amendment retaliation claim was barred by the general rule of Nieves v. Bartlett, and Schilling did not satisfy the “narrow exception” (no objective evidence of differential enforcement).

The court also noted that any district-court confusion about which of two videos depicted certain moments was immaterial because other videos clearly established the relevant conduct, and any debate about whether the protest was “violent” did not bear on the probable cause determination for the charged pedestrian offense.

Analysis

Precedents Cited

Shaw v. City of Selma, 884 F.3d 1093 (11th Cir. 2018)

Shaw supplied the de novo standard of review and the summary judgment lens—viewing facts in the nonmovant’s favor—while emphasizing the Eleventh Circuit’s rule that when video “obviously contradicts” a party’s account, courts accept the video’s clear depiction. This mattered because the court treated the video record as dispositive on whether cars were within 1,000 feet while Schilling walked in the roadway.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

Celotex undergirded the court’s conclusion that disputes must be “material” to defeat summary judgment. The panel used this principle to reject Schilling’s argument that the district court’s “violent protest” characterization created a triable fact: even if disputed, it did not affect the existence of probable cause under the pedestrian statute.

Garcia v. Casey, 75 F.4th 1176 (11th Cir. 2023)

Garcia stated the baseline Fourth Amendment rule: arrest without probable cause violates the Fourth Amendment. The panel’s analysis then turned on whether the facts met the probable cause threshold for a pedestrian-in-roadway offense.

Prospero v. Sullivan, 153 F.4th 1171 (11th Cir. 2025)

Prospero performed two functions. First, it linked probable cause to both Fourth Amendment seizure and malicious prosecution theories in the Eleventh Circuit’s modern framework. Second, it reinforced that probable cause generally defeats First Amendment retaliation claims “premised on [the] arrest,” aligning the circuit’s approach with Nieves.

Durruthy v. Pastor, 351 F.3d 1080 (11th Cir. 2003)

Durruthy supplied the operative probable cause definition—whether an officer reasonably believes an offense is being committed. The panel cited it after concluding Schilling’s sidewalk-adjacent roadway walking with cars nearby fit the elements of the Georgia statute.

Scott v. City of Miami, 139 F.4th 1267 (11th Cir. 2025)

Scott emphasized that probable cause is “not a high bar” and demands only a probability/substantial chance of criminal activity. This framing was important given Schilling’s attempt to contest probable cause based on peripheral factual disputes (which the court treated as insufficient in light of clear statutory elements shown by video).

Thompson v. Clark, 596 U.S. 36 (2022)

The panel cited Thompson for the proposition that malicious prosecution claims require absence of probable cause. Although Thompson is often discussed for its favorable-termination rule, the panel used it for the probable-cause component, harmonizing federal malicious prosecution doctrine with the conclusion that probable cause existed here.

Wal-Mart Stores, Inc. v. Blackford, 449 S.E.2d 293 (1994)

Blackford supported the Georgia-law analog: Georgia malicious prosecution similarly requires lack of probable cause. That symmetry allowed the court to dispose of the state claim using the same probable cause analysis.

Nieves v. Bartlett, 587 U.S. 391 (2019)

Nieves provided the controlling rule for retaliatory-arrest claims: as a “general matter,” probable cause to arrest bars a First Amendment retaliation claim based on that arrest. The opinion treated probable cause as the gatekeeping doctrine for Schilling’s retaliation theory, unless Schilling could meet the narrow exception.

DeMartini v. Town of Gulf Stream, 942 F.3d 1277 (11th Cir. 2019)

DeMartini supplied both (1) the Eleventh Circuit’s elements of a First Amendment retaliation claim and (2) the circuit’s articulation of what the Nieves exception demands: “objective evidence” that the plaintiff was arrested while similarly situated people who engaged in the same conduct, but not the protected speech, were not arrested.

Gonzalez v. Trevino, 602 U.S. 653 (2024)

Gonzalez clarified that a plaintiff invoking the Nieves exception does not need a “virtually identical and identifiable” comparator, but still must provide “objective” evidence of differential enforcement. The panel relied on Gonzalez to reject Schilling’s largely inferential claims that he was “singled out” and that a “jaywalker” outside a protest would not be arrested—because he offered no objective proof (e.g., data, records, survey, concrete examples) demonstrating non-arrest of similarly situated individuals.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014)

Sapuppo supported the court’s decision not to address issues not raised on appeal (here, official immunity under Georgia law), reflecting the court’s practice of treating such issues as abandoned.

Legal Reasoning

  1. Identify the arrest offense and its elements. The court focused on Ga. Code Ann. § 40-6-96, which makes it unlawful, where a sidewalk exists, for a pedestrian to stand or stride along an adjacent roadway unless either (a) no motor vehicle is within 1,000 feet or (b) the sidewalk presents an imminent threat of bodily injury.
  2. Apply record evidence (especially video) to those elements. The panel emphasized that it was undisputed Schilling was in the roadway alongside a usable sidewalk. Video evidence showed cars within the statutory distance while he was in the street. That satisfied probable cause.
  3. Treat probable cause as dispositive across related claims. Under Eleventh Circuit and Supreme Court precedent, probable cause defeats:
    • Fourth Amendment unlawful seizure (arrest) claims;
    • Fourth Amendment malicious prosecution claims (absence of probable cause required);
    • Georgia malicious prosecution (likewise requires absence of probable cause); and
    • First Amendment retaliatory-arrest claims under Nieves, subject only to the narrow exception.
  4. Reject the Nieves exception for lack of objective evidence. The court held that Schilling’s arguments were largely rhetorical—asserting he was singled out, and contrasting protest policing with “jaywalking” outside protests— without objective evidence that similarly situated non-speakers were not arrested. Under DeMartini and Gonzalez, that evidentiary gap is fatal.
  5. Decline to reach alternative defenses. Because the court found no constitutional violation, it did not decide qualified immunity, statute-of-limitations relation-back for Captain Knapp, or unraised official immunity issues.

Impact

Although unpublished and formally nonprecedential, the opinion has practical persuasive significance in several recurring contexts:

  • Protest-arrest litigation: It reinforces that even politically charged or protest-policing contexts do not dilute ordinary probable cause analysis when the charged offense has clear, video-verifiable elements (here, roadway presence + nearby vehicles + available sidewalk).
  • Retaliatory-arrest claims after Nieves: The decision illustrates that conclusory “singled out” arguments will not satisfy the exception. Plaintiffs must come forward with objective evidence of differential enforcement (e.g., citations/arrests data, bodycam patterns, testimony tied to specific non-arrests, agency policies showing non-enforcement, surveys like the one discussed in Gonzalez).
  • Video-evidence dominance at summary judgment: Consistent with Eleventh Circuit practice, video can collapse factual disputes and accelerate resolution where it clearly depicts the conduct relevant to probable cause.

Complex Concepts Simplified

  • Probable cause: A practical, commonsense standard—officers need only a reasonable belief that there is a substantial chance an offense occurred, not proof beyond a reasonable doubt.
  • Summary judgment: A case can end before trial if there is no genuine dispute about facts that matter under the governing law.
  • Malicious prosecution (federal/state): Both the federal Fourth Amendment version (as framed in modern doctrine) and Georgia’s statutory/common-law claim require, among other elements, that the prosecution/arrest lacked probable cause. If probable cause existed, the claim typically fails.
  • Retaliatory arrest and the Nieves rule: If police had probable cause to arrest, courts generally do not allow a First Amendment retaliation claim based on that arrest—because probable cause supplies a lawful basis independent of speech.
  • The Nieves “narrow exception”: Even with probable cause, a plaintiff may proceed if they can objectively show they were arrested while others committing the same conduct (but not engaging in the protected speech) typically were not. After Gonzalez v. Trevino, the comparator need not be “virtually identical,” but the evidence must still be objective.
  • Qualified immunity / relation back: These were raised but not decided. Qualified immunity can shield officers even if a right was violated unless it was clearly established. “Relation back” concerns whether an amended complaint naming a new defendant after limitations can be treated as filed earlier; the court bypassed this because it found no constitutional violation.

Conclusion

The Eleventh Circuit’s decision turns on a straightforward but powerful principle: when video-confirmed facts establish probable cause for an arrest under a clearly defined statute, that probable cause generally defeats Fourth Amendment seizure and malicious prosecution claims and bars retaliatory-arrest claims under Nieves. To escape Nieves, plaintiffs must do more than allege targeting; they must marshal objective evidence that similarly situated non-speakers were not arrested.