Court Emphasizes Factual Issues Related to Immunity

In a recent opinion by the Georgia Court of Appeals, the Court reversed the grant of summary judgment to a school resource officer and clarified ministerial versus discretionary duty. Hall v. Acker, A22A1309 (Ga. Ct. App. March 13, 2023). A high school student, Keurah Hall (“Hall”), allegedly failed to comply with an instruction by a school resource officer, Antwan Acker (“Acker”), and was handcuffed, slammed to the ground, and pepper sprayed. The trial court granted summary judgment to Acker based on official immunity. The Georgia Court of Appeals reversed in part. Though the Georgia Court of Appeals found that Acker was entitled to official immunity for handcuffing and slamming Hall to the ground, the court reversed on the issue of whether Acker was entitled to official immunity for the pepper spraying.

The Georgia Court of Appeals noted that the DeKalb County School Department of Public Safety Standard Operating Procedure Manual (“the Manual”) instructed officers in the use of pepper spray. Specifically, the Manual stated, “[a]ny affected persons should be removed from the contaminated area as quickly and safely as possible” and that “[o]fficers will flush the eyes and face of the affected subject with clean water as soon as possible after the subject is secured.” Where a question of fact regarding whether Acker was entitled to official immunity arose was whether he was negligent in failing to “flush the eyes and face of the affected subject with clean water.”

Acker argued that the Manual was discretionary because it allowed discretion to determine when “as soon as possible” meant. However, the Court disagreed stating that when there is an ambiguity in a policy, the ambiguity must be in determining “whether the policy applies to the situation in the first place.” Thus, the Court found that the phrase “as soon as possible” did not render the policy regarding pepper spray ambiguous to render it a discretionary policy.

While Acker pointed to the fact that Hall’s teacher had wiped Hall’s face and EMS later washed Hall’s eyes out, the Court found that this was an issue of fact for the jury to determine whether Acker acted negligently.

With regard to the force used against Hall in slamming her to the ground and handcuffing her, the Court of Appeals determined that such acts were discretionary and Hall failed to show that Acker acted with the requisite malice. Therefore, the Court of Appeals upheld the grant of summary judgment regarding Acker’s official immunity for those alleged actions.