Georgia Court of Appeals Reaffirms Malice Required to Defeat Official Immunity under Georgia Law
In a recent case, Vidal v. Leavell, 2015 WL 4232361 (Ga. App. 2015), the Georgia Court of Appeals made it more difficult for plaintiffs to strip public officers of qualified immunity. Under Georgia law, public officers and employees, in their individual capacities, are only liable for (1) ministerial acts performed negligently or (2) discretionary acts taken within the scope of their official authority performed with malice or intent to injure. The Court in Vidal dealt with the level of malice necessary to allow a claim against a public officer to survive summary judgment.
In Vidal, the plaintiff, Ashley Leavell, sued an off-duty officer, Officer Jose Vidal, for, among other things, unconstitutional arrest using excessive force after she was arrested at an IHOP in the early morning hours of April 23, 2011. Leavell, observing Officer Vidal arresting other patrons, believed he was acting too aggressively and began to record the scene. During this interaction, Leavell grabbed Officer Vidal on the shoulder so he would see that he was videotaping her. Officer Vidal slapped Leavell in the face and Leavell violently swung at him several times. While another officer was holding her arm, Officer Vidal punched Levell in the side of the head, threw her to the floor, dragged her to the front entrance, handcuffed her, and placed her under arrest for obstruction and assault.
Officer Vidal asserted that Leavell’s claims against him should be dismissed because he was entitled to official immunity. Leavell responded that Officer Vidal should be stripped of his immunity because he acted with malice in hitting and forcibly arresting her. In dismissing Leavell’s claims against Officer Vidal, the Georgia Court of Appeals reiterated that “actual malice” or intent to injure sufficient to defeat official immunity requires “a deliberate intention to do wrong” and “actual intent to cause harm to the plaintiff.” It went on to say, “evidence demonstrating frustration, irritation, and possibly even anger is not sufficient to penetrate official immunity, nor is proof of ill will, unless the ill will is combined with the intent to do something wrongful or illegal.” Vidal, at *7 (quoting Selvy v. Morrison, 292 Ga. App. 702, 706 (2008). In finding that there was no evidence that Officer Vidal acted with malice toward Leavell, the Georgia Court of Appeals stated, “[a]lthough we do not condone the officer’s actions in this case, we do not find that the evidence creates a jury question concerning whether Officer Vidal exhibited actual malice toward Leavell.”
Though relying on prior case law, the Georgia Court of Appeals, in the Vidal decision has set up a difficult hurdle for plaintiffs to jump in order to survive summary judgment. Based on this decision, a plaintiff must have something close to an admission from the officer that he acted with specific intent to injure the plaintiff in order to create even a jury question of whether the officer acted with malice sufficient to strip him of his immunity. The true wisdom of this decision, however, is in the Court’s reaffirmation that “[p]olice officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” In light of the ever-evolving dangerous landscape police officers find themselves in, they should be free from the fear of personal liability except in the most extreme circumstances.