STEPHENS Et Al. v. ZIMMERMAN

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

July 14, 2015

In the Court of Appeals of Georgia
A15A0297. STEPHENS et al. v. ZIMMERMAN.

RAY, Judge.

Joshua Zimmerman sued the Mayor and Aldermen of the City of Savannah (the

“City”) and Samantha Stephens, a police officer/detective trainee with the Savannah-

Chatham Metropolitan Police Department , raising State law claims of false

imprisonment, false arrest, and malicious prosecution. He amended his complaint to

allege a violation of 42 USC § 1983. These claims arise from Zimmerman’s

contention that he was wrongfully arrested and prosecuted for crimes related to an

incident of vandalism to vehicles in a downtown Savannah parking garage. The trial

court granted in part and denied in part the City and Stephens’s motions for summary
judgment as to their respective immunities. The City and Stephens appealed.1 For the

reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. On appeal
from the denial or grant of summary judgment, the appellate court is to
conduct a de novo review of the evidence to determine whether there
exists a genuine issue of material fact, and whether the undisputed facts,
viewed in the light most favorable to the nonmoving party, warrant
judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362, 362 (739

SE2d 801) (2013).

In brief, the underlying basis for Zimmerman’s claims is that some witnesses

told police that one of several perpetrators was a black male. Zimmerman is white.

He argues, inter alia, that he was wrongfully arrested and prosecuted because

Stephens failed to perform an adequate investigation, ignored facts, and testified

falsely. The City and Stephens counter that, under the applicable legal standard,

Stephens had probable cause to arrest Zimmerman and that there is no evidence of

1
The appellants requested that transcripts not be included in the record on
appeal.

2
actual malice triggering a waiver of their respective sovereign and official

immunities.

Viewed most favorably to Zimmerman as the nonmoving party, the record

reveals that some, but not all, of the witnesses to the crimes at issue identified the

suspects as two white males, a Hispanic male, and a black male. Other witnesses only

mentioned three suspects, none of whom was black. Three suspects, Michael Martin,

Remijio Botello, and Seth Stratton eventually tendered guilty pleas. Martin and

Stratton are white; Botello is Hispanic.

The record shows that at approximately 2:20 a.m. on June 25, 2011, a group

of men damaged five vehicles and a motorcycle in a Savannah parking garage.

Officer Amir Delic with the Savannah-Chatham Metropolitan Police Department

completed a police report on the damage and possible suspects, and handled initial

witness interviews. Stephens then began investigating the case.

Delic and Stephens both filed reports. Delic’s report states that eyewitness

Matthew Socienski saw four men – two white men, one Hispanic man, and one black

man – damaging multiple vehicles in the garage. Socienski saw the men leave the

scene in a gray Chevrolet Trailblazer with Georgia license tag number BIG 2415.

Stephens did not interview Socienski.

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 Delic’s report states that eyewitness Megan Neary, whose car was damaged,

told him that she saw three men – two white men and a Hispanic man – damaging

vehicles, and that they left the scene in a dark gray sport utility vehicle with the

license plate BIG 2415. By contrast, Stephens’s report says Neary saw four men get

on a garage elevator, then she heard smashing noises. Neary went to another floor to

look for her car, saw two men damaging a vehicle and a third in the driver’s seat of

a Trailblazer with the BIG 2415 tag. Stephens’s report says Neary stated that “all

three subjects who were damaging the vehicle” (emphasis supplied) then got into the

Trailblazer. She described the driver as white and one passenger as Latino, but could

not describe the person who got in the backseat.

Delic’s report states that Christina Birchfield, the garage attendant, saw a dark

sport utility vehicle leaving the garage around the time of the incident. She mentioned

three men – the driver, who was white; and two passengers, one white and one

Hispanic. Stephens’s report indicates that Birchfield described the men as “army

guys” with whom she was familiar, and that she had seen one of the suspects who

later pled guilty, Martin, arguing with people in another vehicle. Stephens’s report

does not mention the ethnicity or the number of men Birchfield observed.

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 Delic’s report indicates that he was then advised to contact Sean Young, who

owned the motorcycle that had been damaged during the incident. Young was not an

eyewitness. Young told Delic that he spoke with the parking attendant, Birchfield,

and based on that discussion believed he knew the perpetrators. Young was a bouncer

at a local club and said he saw the suspects most weekends. He identified them as

Martin, Botello, and Stratton – the men who eventually pled guilty. He also said he

saw a black man with them at the club, but did not know that man’s name. Stephens’s

report states that Young told her the men had been in the club that night, had left

together, and that “they had gotten drunk before and had done stupid stuff like that.”

Young also said he had called one of the men, Martin, who denied involvement but

admitted that his tag number was BIG 2415. Young described Martin as a white male

with tattoo “sleeves,” Stratton as a “possibly white Latino male,” Botello as a Latino

male, and the fourth suspect as “black.”

Stephens also interviewed the four suspects. Stratton denied damaging any

vehicles, but acknowledged that he was out with Martin, “Ray” Botello and “Josh”

Zimmerman on the night in question.

Martin told Stephens that although he was at the garage, he was intoxicated and

did not remember seeing his friends damage anything. He said he was with Stratton

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and “Josh Zimmerman,” whom he believed lived together, and that he was also with

“a Mexican kid named Ray.”

Botello told Stephens that he had been with Martin, and with “Seth” and “Josh”

whose last names he did not know. He said he knew about the damage but could not

remember well enough to know if he was involved. He later admitted that he and the

men he was with “kinda went crazy in the garage,” that he smashed a windshield, that

“Josh” and “Seth” pushed over a motorcycle and that the three of them were “running

around destroying stuff,” but that Martin did not do anything. Stephens’ report does

not indicate that Botello said anything about the ethnicity of the men he was with.

Using social media and other resources, Stephens found and interviewed

Zimmerman, who said he was not in downtown Savannah on the night in question.

He said his roommate could vouch for his being at home. He denied knowing

suspects Martin, Stratton, and Botello, or the victim Young, and said he had never

been to the club where Young worked.

According to Stephens’ report, Zimmerman later called her to say that he did

know Stratton because Stratton had been in a fight with his roommate, that he’d seen

Stratton the day he got a tattoo, and that Stratton was framing him because of the fight

with Zimmerman’s roommate. In his deposition, however, Zimmerman stated that he

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looked up Stratton and Martin on FaceBook and recognized them from the tattoo

parlor. However, he said he never told Stephens he knew Stratton from an altercation

with his roommate, but rather that he told her his roommate had a prior altercation

with the tattoo artist.

Stephens obtained warrants for the suspects’ arrest, after consulting with her

superior. Only after Zimmerman was arrested did Stephens contact Zimmerman’s

roommate, who confirmed his alibi.

1. The City and Stephens argue generally that the trial court should have found

Zimmerman’s claims barred by sovereign immunity as to the City and official

immunity as to Stephens. We agree.

(a) Applicable cause of action.

The trial court granted summary judgment to Stephens and the City on

Zimmerman’s claim of false imprisonment, leaving, as to his State law claims, only

the issues of false arrest and malicious prosecution. Our case law distinguishes

between these remaining torts: “false or malicious arrest is detention ‘under process

of law’ (OCGA § 51-7-1); and . . . malicious prosecution is detention with judicial

process followed by prosecution (OCGA § 51-7-40).” Ferrell v. Mikula, 295 Ga.

App. 326, 329 (2) (672 SE2d 7) (2008). The distinction is important because

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“[m]alicious prosecution and malicious arrest are mutually exclusive; if one right of

action exists, the other does not.” (Citation and punctuation omitted.) Perry v. Brooks,

175 Ga. App. 77, 78 (3) (332 SE2d 375) (1985) .

Where, as here, there has been an arrest pursuant to a warrant, the remedy

depends on whether the accused was prosecuted. “If after the arrest[,] the warrant is

dismissed or not followed up, the remedy is for malicious arrest. But if the action is

carried on to a prosecution, an action for malicious prosecution is the exclusive

remedy, and an action for malicious arrest will not lie.” (Citation omitted; emphasis

supplied.) Garner v. Heilig-Meyers Furniture Co., 240 Ga. App. 780, 781-782 (1)

(525 SE2d 145) (1999).2

Zimmerman was arrested pursuant to a warrant. He was jailed and released

about two days later after an initial video appearance before a judge. He was charged

with false statements and writings and with four counts of criminal damage to

property.

2
Although Zimmerman’s complaint uses the term “false arrest,” he in fact cites
to and states a claim under OCGA § 51-7-1, the statute addressing malicious arrest.
The torts of false arrest and malicious arrest are different. False arrest contains no
malice element. Zimmerman clearly averred that Stephens “maliciously caused” his
arrest. See Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 128-129 (2) (d) (488
SE2d 500) (1997) (where there was no averment as to malice, complaint did not
allege malicious arrest but rather alleged false arrest).

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 After a preliminary hearing on July 14, 2011, before the Chatham County

Recorder’s Court, the charges were dismissed. An inquiry before a “committing

court” is a required element of malicious prosecution claim. OCGA § 51-7-42; see

Renton v. Watson, 319 Ga. App. 896, 899 (1) (739 SE2d 19) (2013). The Chatham

County Recorder’s Court is authorized to take and entertain pleas of guilty and nolo

contendere in misdemeanor cases. Pough v. State, 162 Ga. App. 63, 64 (1) (290 SE2d

300) (1982). As the Recorder’s Court is a committing court, Zimmerman’s only claim

is for malicious prosecution. Perry, supra.

(b) Malicious prosecution.

The City and Stephens argue that the trial court erred in finding a fact question

as to whether Stephens had probable cause to arrest Zimmerman in the context of the

malicious prosecution claim. See Renton, supra at 898 (1) (defining the six elements

of a malicious prosecution claim). We agree.

Zimmerman essentially argues there was no probable cause and that this,

coupled with evidence of actual malice, necessitates the trial court’s denial of the City

and Stephens’s motion for summary judgment. To successfully prosecute a tort claim

for malicious prosecution, “a plaintiff must show that the defendant acted both

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without probable cause and maliciously[.]” (Citations omitted.) Anderson v. Cobb,

258 Ga. App. 159, 160 (2) (573 SE2d 417) (2002).

Malice is an element of malicious prosecution and may be inferred by
a total lack of probable cause.3 Our initial inquiry, however, is not
whether [Stephens] acted maliciously for purposes of the tort of
malicious prosecution, but whether she acted with actual malice that
would exempt her from official immunity. Official or qualified
immunity protects individual public agents from personal liability for
discretionary actions taken within the scope of their official authority,
and done without wilfulness, malice, or corruption. In Georgia, a public
officer may be personally liable . . . for discretionary acts performed
with malice or an intent to injure.

(Punctuation and footnotes omitted; emphasis in original.) Marshall v. Browning, 310

Ga. App. 64, 67 (712 SE2d 71) (2011). Zimmerman acted with discretionary authority

in investigating and obtaining arrest warrants. See Anderson, supra at 160 (2).

In the context of official immunity, “[a]ctual malice requires a deliberate

intention to do wrong[.] . . . Ill will alone is insufficient to establish actual malice;

3
See Joseph v. Home Depot, Inc., 246 Ga. App. 868, 871-872 (2) (542 SE2d
618) (2000) (“Want of probable cause is the gravamen of an action for malicious
prosecution; and there can be no recovery by the plaintiff when there was any
probable cause for the prosecution, even though it may appear that the prosecutor was
actuated by improper motives”) (citations omitted).

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[Zimmerman] must show that [Stephens] acted with the deliberate intent to commit

a wrongful act or with the deliberate intent to harm [him].” (Citation omitted.) Id.

Deliberate intent does not mean “merely an intent to do the act purportedly resulting

in the claimed injury” and “[a]ctual malice does not include implied malice or the

reckless disregard for the rights and safety of others.” (Footnotes omitted.) Marshall,

supra at 68.

Zimmerman argues that Stephens should have investigated further before

arresting him, and should have questioned witnesses and suspects about the race of

the fourth suspect. He also alleges that she made inconsistent, possibly untrue,

statements.

However, without more, “such actions do not show a deliberate intent to

commit a wrongful act or to harm [Zimmerman].” Anderson, supra. We find no

evidence that Stephens was motivated by personal malice toward Zimmerman.

Further, Stephens sought arrest warrants based on information that included

statements from one eyewitness who said four men were involved – two white men,

a Hispanic man, and a black man, and two other eyewitnesses who reported seeing

only two white males and a Hispanic male. The other person who told officers a black

male might be involved was not an eyewitness. Further, one perpetrator told Stephens

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he was with “Josh Zimmerman” on the night in question and the other two suspects

said they also were with “Josh.” Stephens testified that she could not find a black Josh

Zimmerman, and that she discussed her findings with her supervisor, who concurred

in her decision to arrest Zimmerman.

When Stephens interviewed Zimmerman, she noted that just as the other

suspects had done, he initially denied involvement. He also initially said he did not

know the other suspects, but later called Stephens to say he did know one of them. As

Stephens testified, “[T]he fact that Josh, just as the three of them tried to clear

themselves, Josh first denied knowing who any of them were, then had some sort of

relationships with Seth Stratton, would only make me believe that, you know, just as

they tried to disassociate themselves with things that occurred, why wouldn’t he?”

This Court has found that if a jury could reasonably infer that police officers

arrested the plaintiff despite knowing that the plaintiff did not commit the crimes at

issue and, thus, that the officers deliberately intended to do a wrongful act, the

officers were not entitled to summary judgment. Bateast v. DeKalb County, 258 Ga.

App. 131, 132-133 (572 SE2d 756) (2002).4 However, we also have determined that

4
We note that probable cause does not mandate absolute verification, but the
officer must act with a certain level of reasonableness in beginning the prosecution.
“The [officer] is not necessarily required to verify his information, where it appears

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 where an officer’s decision to seek warrants might be characterized as
“misguided” there was nevertheless no evidence that the actions were
taken with actual malice for purposes of official immunity. Similarly,
absent malice or intent to injure, no liability attaches to the officer’s
exercise of [her] lawful discretion even when the decision to effectuate
the arrest is flawed.

(Citations and punctuation omitted.) Marshall, supra at 69.

Based upon the foregoing, we further find that the City has not waived its

sovereign immunity. OCGA §§ 36-33-1 (b), 36-33-3. See Crisp County School

System v. Brown, 226 Ga. App. 800, 804 (2) (487 SE2d 512) (1997). For the

foregoing reasons, the trial court erred in denying the City’s and Stephens’s motion

for summary judgment.

2. Zimmerman alleged that his due process rights were violated under 42 USC

§ 1983 because he was arrested without probable cause. Stephens and the City argue

that Zimmerman raised this claim only against the City and not Stephens in her

to be reliable; but where a reasonable man would investigate further before beginning
the prosecution, he may be liable for failure to do so.” (Citations and punctuation
omitted; emphasis supplied.) Joseph, supra at 872 (2).

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individual capacity. As a result, they argue, the trial court erred in denying their

motion for summary judgment as to Stephens on this point.

“When issues not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as if they had been raised

in the pleadings.” OCGA § 9-11-15 (b). Because the appellants did not include

transcripts of the summary judgment hearing in the appellate record, we have no way

of knowing what matters or objections were raised. We must assume the trial court

had authority to consider the issue. See Johnson v. Ware, 313 Ga. App. 774, 776 (1)

(723 SE2d 18) (2012).

To survive the City and Stephens’s bid for summary judgment in a § 1983

action, Zimmerman bears the burden of proof in showing that genuine issues of

material fact exist as to whether Stephens’s “acts or omissions, performed under color

of [S]tate law, resulted in the deprivation of a right, privilege, or immunity protected

by the United States Constitution or the laws of the United States.” (Citations

omitted.) Means v. City of Atlanta Police Dept., 262 Ga. App. 700, 705 (2) (586 SE2d

373) (2003).

In the context, as here, of a § 1983 claim predicated on a lack of probable

cause, “[t]he Supreme Court has held that a police officer will be liable under Section

14
1983 if [s]he applies for a warrant and ‘a reasonably well-trained officer . . . would

have known that [her] affidavit failed to establish probable cause and that [s]he

should not have applied for the warrant.’” (Punctuation omitted.) Franklin v.

Consolidated Govt. of Columbus, Ga., 236 Ga. App. 468, 471 (2) (512 SE2d 352)

(1999), citing Malley v. Briggs, 475 U. S. 335, 345 (III) (106 SCt 1092, 89 LE2d 271)

(1986).

Zimmerman argues that Stephens’s investigation leading up to his arrest was

constitutionally deficient because she elected not to pursue easily ascertainable

information regarding the ethnicity of the fourth suspect, there was conflicting

information as to the fourth suspect’s residential address, and because she failed to

interview his alibi witnesses until after he was arrested. While in the § 1983 context

the Eleventh Circuit has found that “an officer may not choose to ignore information

that has been offered to him or her . . . or elect not to obtain easily discoverable

facts[,]” Kingsland v. City of Miami, 382 F.3d 1220, 1229 (2) (11th Cir. 2004), that

Court also recognized that police officers “are not required to perform error-free

investigations” or “investigate every proffered claim of innocence.” (Citation

omitted.) Id. at n. 10.

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 Probable cause exists if the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy information,
would cause a prudent person to believe, under the circumstances
shown, that the suspect has committed . . . an offense. However, the
appropriate inquiry for qualified immunity is not whether there was
probable cause, but whether there was “arguable” probable cause to
arrest. In other words, we must determine whether reasonable officers
in the same circumstances and possessing the same knowledge as the
Defendants could have believed that probable cause existed to arrest.

(Citations and punctuation omitted; emphasis omitted.) Pickens v. Hollowell, 59 F.3d

1203, 1206 (II) (A) (11th Cir. 1995). As outlined in Division 1, given the information

before her at the time of the arrest, we cannot say that no reasonable officer in the

same circumstances and with the same knowledge Stephens possessed could have

believed he or she had probable cause to arrest Zimmerman. Further, while

Stephens’s investigation was less than perfect, “[i]nadvertent errors, honest mistakes,

agency confusion, even negligence in the performance of official duties, do not

warrant redress under [42 USC § 1983].” (Citation and punctuation omitted.) Forney

v. Purvis, 190 Ga. App. 192, 195 (1) (378 SE2d 470) (1989).

3. Given our determinations in Divisions 1 and 2, we need not reach appellants’

remaining contentions of error.

Judgment reversed. Barnes, P. J., concurs. McMillian, J., concurs in judgment

only as to Division 1 and concurs fully otherwise.

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