The Court of Appeals of Georgia recently held that a citizen’s negligence claim against a city and a police officer was barred by immunity because the plaintiff failed to show malice on the part of the officer and proof that the city waived its immunity. Campbell v. Goode, 2010 WL 1172949 (Ga.App. Mar. 29, 2010).
On June 8, 2006, at approximately 3:30 a.m., Officer Johnny Campbell observed Jesse Goode walking near a McDonald’s restaurant in Conyers. Officer Campbell, who was aware of recent early-morning robberies at restaurants in the area, approached Goode, who was wearing a coat and carrying a backpack, and asked him what he was doing. Goode responded that he was throwing away some trash and provided identification. Officer Campbell then asked Goode if he had any weapons but Goode did not answer. After asking several additional times without an answer, Officer Campbell approached Goode from behind and attempted to frisk him for weapons. After Goode raised his right arm above his head, Officer Campbell grabbed his arm and pulled it in such a way that caused it to break. Goode sued the City of Conyers and Officer Campbell, personally and in his official capacity, asserting claims of negligence and intentional torts.
Under Georgia law, a police officer may be personally liable only for discretionary acts performed with malice. Decisions to investigate suspicious activity and conduct a search for weapons are discretionary functions of a police officer’s job. In the context of official immunity, malice requires a deliberate intention to do wrong or cause harm. While Goode acknowledged that he did not believe Officer Campbell intended to break his arm, he claimed that Officer Campbell called him an “a__hole.” However, such a statement, even if uttered by Officer Campbell, does not rise to the level of malice, and the Court held that Officer Campbell was entitled to official immunity.
Furthermore, the Court held that Goode’s claim against Officer Campbell in his official capacity was effectively a suit against the City. Therefore, even if a jury were to find that Officer Campbell acted negligently, sovereign immunity nevertheless bars the claim. Because the City did not waive its immunity by purchasing liability insurance, the City was entitled to summary judgment.
For more information, please contact Tim Buckley at (404) 633-9230.
