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
A15A0566. VIDAL v. LEAVELL.
RAY, Judge.
Ashley Leavell filed a complaint against Officer Jose Vidal, Southern
Restaurant Management, Inc. d/b/a International House of Pancakes, and Buckhead
IHOP, Inc., alleging that Officer Vidal, an off-duty officer hired to provide security
at an IHOP restaurant, used excessive force when arresting her. Officer Vidal filed
this direct appeal pursuant to the collateral order doctrine1 seeking review of the trial
1
Official immunity, like sovereign immunity, “is an entitlement not to stand
trial rather than a mere defense to liability.” (Citation and punctuation omitted.)
Taylor v. Campbell, 320 Ga. App. 362, 363, n. 3 (739 SE2d 801) (2013). Our
appellate courts have
held that an order denying such an immunity claim is appealable under
the collateral order doctrine because the order conclusively determines
the disputed question, resolves an important issue completely separate
court’s denial of his motion for summary judgment filed on official immunity
grounds. For the following reasons, we reverse the denial of his summary judgment
motion.
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, supra at 362.
The record shows that in the early morning hours of April 23, 2011, Leavell
and a friend went to the Buckhead IHOP after having drinks at a bar. After being
seated, Leavell noticed Officer Vidal approach a nearby booth and begin to speak to
a group of young women seated there. Leavell stated in her affidavit that “I could not
from the merits of the action, and is effectively unreviewable on appeal
from a final judgment.
(Citation and punctuation omitted.) Id. Leavell’s motion to dismiss on the grounds
that this appeal did not fall under the collateral order doctrine is denied. See City of
Atlanta v. Shavers, 326 Ga. App. 95, 97 (2) (a) (756 SE2d 204) (2014).
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hear what was being said, but I saw the officer force himself into their booth and
begin pushing two of the women into the wall with the full weight of his body as the
women screamed hysterically.” Officer Vidal was engaged in an attempt to arrest the
IHOP patrons in the booth. Leavell testified that she began to video the scene with
her cell phone because she believed the officer was acting too aggressively. Officer
Vidal instructed the women in the booth, and all those around him, to stop touching
him. After another officer arrived and appeared to be engaged in stopping the officer
from his interactions with the women, Leavell testified that she grabbed Officer
Vidal’s shoulder “to get his attention so he would see that [she] was videoing him[,]”
and Officer Vidal slapped her in the face. Video footage of the incident reveals that
Leavell then violently swung at the officer several times before another officer
grabbed her arm.2 As the other officer was holding her arm, Officer Vidal punched
Leavell on the side of the head. Officer Vidal then “threw [Leavell] to the floor,
dragged [her] to the front entrance, and handcuffed” her. Leavell was placed under
arrest for obstruction and assault. An ambulance was called, and Leavell was
2
Although Leavell and Vidal’s recitations of the events differ to a degree as
to the characterization of Leavell’s first instance of touching the officer and her
subsequent swings at him, this Court must rely upon facts as depicted by the
videotape. See Scott v. Harris, 550 U. S. 372, 378-381 (III) (A) (127 SCt 1769, 167
LE2d 686) (2007).
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evaluated at the hospital. After the incident, Leavell learned that other IHOP
customers had videoed the incident and uploaded the videos to YouTube.com.
Leavell filed suit against Officer Vidal for, inter alia, battery, negligence and
unconstitutional arrest using excessive force. Officer Vidal filed a motion for
summary judgment alleging that the claims against him were barred by the doctrine
of official immunity. Without making any findings of fact or conclusions of law, the
trial court denied the motion.
Officer Vidal contends that no question of material fact exists as to whether
his actions against Leavell were done with malice or with an intent to injure her and,
thus, the trial court erred in denying his summary judgment motion on the grounds
of official immunity. We agree.
The doctrine of official immunity, also known as qualified immunity,
offers public officers and employees limited protection from suit in their
personal capacity. 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. Under Georgia law, a public officer or employee may be
personally liable only for ministerial acts negligently performed or acts
performed with malice or an intent to injure. The rationale for this
immunity is to preserve the public employee’s independence of action
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without fear of lawsuits and to prevent a review of his or her judgment
in hindsight.
(Citations omitted; emphasis supplied.) Williams v. Pauley, 331 Ga. App. 129, 130
(768 SE2d 546) (2015). Leavell does not dispute that Officer Vidal was engaged in
a discretionary act when arresting her, but she argues that he acted with actual malice
in striking her and forcibly arresting her. See Valades v. Uslu, 301 Ga. App. 885, 890
(2) (689 SE2d 338) (2009). (2) (“arresting a person for conduct occurring in an
officer’s presence is a discretionary act that will not give rise to personal liability
unless the officer acted with actual malice or actual intent to cause injury”)
(punctuation and footnote omitted).
To prove that Officer Vidal acted with actual malice or an intent to injure,
Leavell must show more than the officer’s ill will towards her. Rather, Leavell “must
show that [Officer Vidal] acted with the deliberate intent to commit a wrongful act
or with the deliberate intent to harm her.” (Citations omitted.) Anderson v. Cobb, 258
Ga. App. 159, 160 (2) (573 SE2d 417) (2002) Georgia Courts have distinguished this
actual malice from “implied malice, which . . . had been defined to mean conduct
exhibiting a reckless disregard for human life.” (Punctuation and footnote omitted.)
Phillips v. Hanse, 281 Ga. 133, 135 (2) (637 SE2d 11) (2006).
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Selvy v. Morrison, 292 Ga. App. 702 (665 SE2d 401) (2008), is instructive in
determining what constitutes malice in the context of an arrest for the purposes of
qualified immunity. In Selvy, the plaintiff alleged that she was brutally treated when
she was arrested for disorderly conduct. The plaintiff alleged that police officers had
come to her house to arrest her fiancé. After they had done so, she used profanity
when demanding that they leave her house and locked the door behind them. The
officers, also using profanity, decided to arrest her as well and threatened to break
down her door if she refused to open it. When she opened the door, the officers
grabbed her arm, twisted it behind her back and slammed her face into the wall. An
officer kicked her legs out from under her, and in the process, kicked her ten-year-old
son in the mouth. Id. at 702-704.
In affirming the trial court’s grant of summary judgment to the officers, this
Court rejected Selvy’s claim that the officers acted with actual malice. We held that
[i]n the context of official immunity, actual malice requires a deliberate
intention to do wrong and denotes express malice or malice in fact.
Actual malice does not include implied malice, or the reckless disregard
for the rights and safety of others. A deliberate intention to do wrong
such as to constitute the actual malice necessary to overcome official
immunity must be in the intent to cause the harm suffered by the
plaintiffs. Likewise, the phrase “actual intent to cause injury” has been
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defined in a tort context to mean an actual intent to cause harm to the
plaintiff, not merely an intent to do the act purportedly resulting in the
claimed injury. This definition of intent contains aspects of malice,
perhaps a wicked or evil motive.
(Punctuation and footnotes omitted.) Id. at 704-705. We concluded that “[e]vidence
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.” (Punctuation and footnotes
omitted.) Id. at 706. Although the officers “may have shown poor judgment . . . and
reckless disregard for the rights and safety of others[,]” id. at 705, there was no
evidence of actual malice when officers were at the plaintiff’s home to effectuate a
valid arrest warrant for her fiancé, there was evidence to support her arrest for
disorderly conduct, and because “the right to make an arrest necessarily carries with
it the right to use some degree of physical coercion[.]” (Punctuation and footnotes
omitted.) Id. at 706.
Similarly, in Tittle v. Corso, 256 Ga. App. 859, 860-862, 862-863 (1) (569
SE2d 873) (2002) (whole court), this Court held that an officer’s threats, use of
profanity, and act of slamming a motorist against his vehicle were insufficient to
establish actual malice. In Valades, supra, this Court held that an officer did not
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exhibit actual malice when he, after arguing with plaintiffs during a traffic stop,
pulled one plaintiff’s hair, lifted her up while handcuffed so as to cause soreness in
her shoulder and pointed a weapon at her neck, or when the officer asked the other
plaintiff if he wanted to die and kicked him in the knee because the officer’s actions
showed an effort to restrain an uncertain situation rather than a deliberate intent to
commit a wrongful act. Id. at 886-887, 892 (2).
“Police 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.” (Punctuation and footnote omitted.)
Valades, supra at 891-892 (2). Accord Tittle, supra at 863 (1) (“The right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it”) (punctuation and footnote omitted).
Although 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 towards Leavell. Leavell does not dispute that Officer Vidal was engaged in
an attempt to arrest an IHOP patron who refused to leave the premises when Leavell
came over to videotape the scene. Officer Vidal testified that Leavell’s arrest was
based on simple assault and obstruction because she was “grabbing on” him while he
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was attempting to arrest another IHOP patron and because she swung at him several
times. “[O]ur task is not to decide, with the benefit of hindsight, what [Officer Vidal]
should have done. We are concerned only with whether [his] behavior showed a
deliberate intention to commit a wrongful act.” (Punctuation and footnote omitted.)
Selvy, supra at 707. Because there was no evidence to support a finding of actual
malice, the trial court erred in concluding that Officer Vidal was not entitled to
official immunity and in denying Officer Vidal’s motion for summary judgment.
Judgment reversed. Barnes, P. J., and McMillian, J., concur.
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