HART Et Al. v. SIRMANS

FORTH DIVISION

BARNES, P. J.

RAY and RICKMAN, 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

March 15, 2016

In the Court of Appeals of Georgia

A15A2327. JASON HART, et al. v. UNDRAY SIRMANS.

RICKMAN, Judge.

Undray Sirmans filed suit against law enforcement officers Capers Green and

Jason Hart, in their individual capacities, alleging claims of malicious prosecution,

false arrest, unreasonable force, and giving false information.1 Green and Hart appeal

the trial court’s denial of summary judgement as to their defense of official immunity

and as to all of Sirmans’ claims. Because we conclude that Officers Green and Hart

were entitled to official immunity from suit, we reverse.

To prevail at summary judgment, the moving party must demonstrate

that there is no genuine issue of material fact and that the evidence and

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“Giving false information” is not a tort recognized under Georgia law and

Sirmans’ withdrew the claim on appeal. Nonetheless, the trial court denied summary

judgment as to all claims.

all reasonable inferences and conclusions drawn therefrom, viewed in

the nonmovant’s favor, warrant judgment as a matter of law. We review

de novo the trial court’s ruling on a motion for summary judgment.

(Footnote omitted.) Marshall v. Browning, 310 Ga. App. 64-65 (712 SE2d 71)

(2011).

So viewed, the evidence showed that on the morning in question, Sirmans was

copying pirated music and movies in order to sell them at the barbershop. In the

afternoon, Green, a Special Agent with the Henry County Police Department’s

Narcotics Unit, received information from a confidential informant that a black male

known as “Dre,” approximately six feet and two inches tall, would be transporting

marijuana and pills on a bicycle in the area of Willow Lane in McDonough, Georgia.

The confidential informant told Special Agent Green that “Dre” had a criminal history

and could be violent.2

Special Agent Green informed Hart, an officer with the same police

department, of the information that the confidential informant provided and asked for

his assistance in locating the suspect. Shortly after speaking with Special Agent

2

Sirmans had previously pled guilty to second degree murder in Florida.

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Green, Officer Hart observed Sirmans, a black male, matching the physical

description given by the confidential informant, riding a bicycle near Willow Lane.

Officer Hart approached Sirmans and asked him if he knew anything about cars being

broken into at Walmart and Sirmans, by his own admission, “became very irate.”

Sirmans responded, “get the hell out of here, you crazy.” At some point, Sirmans

claims that Officer Hart used a racial epithet towards him.3

Officer Hart directed Sirmans to put his hands on the patrol car and asked him

for identification. Sirmans initially put his hands on the car but, by his own

admission, began “talking with his hands” and pulled his hands off of the hood of the

patrol car. Another officer4 arrived and he, along with Officer Hart, took Sirmans to

the ground after he refused to comply with their instructions to keep his hands on the

car. Sirmans’ cell phone and sunglasses fell to the ground.

After Officer Hart placed Sirmans in custody, he surveyed the scene and

observed a pair of sunglasses, a cell phone, and a paper bag on the ground. The paper

3

Sirmans’s testimony is in conflict as to when the epithet was said. We need

not resolve the issue as to when the epithet was used because it is not pertinent to our

holding.

4

The third officer is not part of this suit.

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bag contained two plastic bags with marijuana and prescription pills wrapped in foil.5

These drugs were consistent with the informant’s description of the drugs that “Dre”

would be transporting.

Sirmans was placed under arrest for violating the Georgia Controlled

Substances Act.6 He admitted that the sunglasses and cell phone found next to the

paper bag were his, but denied having knowledge of the paper bag.

Sirmans complained that his arm hurt, and EMS arrived on the scene and

evaluated him. Sirmans had an abrasion on his arm, but verbally refused treatment.

Officer Hart “vehemently” denied uttering a racial epithet towards Sirmans

during the encounter. However, in viewing the evidence in the light most favorable

to Sirmans, we must assume that the epithet was uttered.

Sirmans sued Special Agent Green and Officer Hart, alleging claims of

malicious prosecution, false arrest, unreasonable force, giving false information, and

seeking punitive damages. Special Agent Green and Officer Hart filed a motion for

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These pills were later identified by the crime lab as dihydrocodeinone

(hydrocodone), a schedule II controlled substance, and carisoprodol, a schedule IV

controlled substance. See OCGA § 16-13-26 (1) (A) (ix). OCGA § 16-13-27 (a)

(2025).

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See OCGA § 16-13-30(a) or et seq. Sirmans was prosecuted by the Henry

County District Attorney’s Office and was acquitted.

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summary judgement, asserting that official immunity precluded Sirmans’s claims. The

trial court denied their motion in a two-sentence order, which also did not dispose of

the claim of “ giving false information” which is not a tort recognized by Georgia

law. It is from this order that Special Agent Green and Officer Hart now appeal.

1. Special Agent Green and Officer Hart argue that the trial court erred in

denying summary judgement on their official immunity defense, which bars all

claims. We agree.

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 only for

ministerial acts negligently performed or for discretionary acts

performed with malice or an intent to injure.

(Punctuation and footnotes omitted.) Marshall, supra at 67.

It is undisputed that Special Agent Green and Officer Hart were acting in their

discretionary function as law enforcement officers when investigating Sirmans for

violations of the Georgia Controlled Substances Act. “Thus, [they are] entitled to

official immunity from [Sirmans’s] claims, absent a showing that [they] acted with

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actual malice or intent to cause injury.” (Footnote omitted.) Tittle v. Corso, 256 Ga.

App. 859, 861-862 (1) (569 SE2d 873) (2002).

Actual malice requires more than harboring bad feelings about

another. While ill will may be an element of actual malice in many

factual situations, its presence alone cannot pierce official immunity;

rather, ill will must also be combined with the intent to do something

wrongful or illegal. To hold otherwise would mean that any plaintiff

who suffers damages as the result of an act of a public officer or

employee can pierce that State defendants official immunity solely on

the basis of the defendants rancorous personal feelings towards the

plaintiff, even though the defendants actions in regard to the disliked

plaintiff may have been completely lawful and legally justified.

Equating actual malice with ill will would lead to this absurd result,

contrary to well-established rules of constitutional construction.

(Citations omitted.) Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896)

(1999). “The phrase ‘actual intent to cause injury’ has been 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 footnote

omitted.) Selvy v. Morrison, 292 Ga. App. 702, 705 (665 SE2d 401) (2008).

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Thus, it is not sufficient that Sirmans produce evidence from which a jury

could find ill will, or rancourous personal feelings towards him. Rather, any such

evidence must be combined with the intent to do something wrongful or illegal.

“[Special Agent Green and Officer Hart’s] subjective feeling[s] or mental

state[s] [are] irrelevant unless [they] prompt[] [them] to intend to do a ‘legally

unjustifiable action.’ We therefore must examine the record to determine whether

[Special Agent Green and Officer Hart’s] action[s] [were] ‘legally unjustifiable.’”

(Citation and punctuation omitted.) Delong v. Domenici, 271 Ga. App. 757, 759 (1)

(610 SE2d 695) (2005).

Prior to Sirmans arrest, Special Agent Green received information from a

confidential informant whom he considered to be reliable, that “Dre” would be

transporting marijuana and prescription pills on a bicycle near Willow Lane in

McDonough, Georgia. Special Agent Green communicated this information to

Officer Hart, and requested that Officer Hart assist him in locating and detaining this

individual. Officer Hart was entitled to rely on the information relayed to him by

Special Agent Green. See Brown v. GeorgiaCarry.org, Inc., 331 Ga. App. 890, 895

(770 SE2d 56) (2015); see also Gay v. State, 233 Ga. App. 738, 739 (2) (505 SE2d

29) (1998).

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Officer Hart subsequently went to the location where “Dre” was supposed to

be transporting the drugs and encountered Undray Sirmans. Sirmans matched the

physical description given by the confidential informant, was driving a bicycle as

described by the confidential informant, and was in the area near Willow Lane that

the confidential informant said “Dre” would be. Therefore, Officer Hart had

reasonable suspicion to believe Sirmans was transporting illegal drugs, and to detain

Sirmans for further investigation. See Gray v. State, 252 Ga. App. 301, 302-303 (556

SE2d 194) (2001) (tip from confidential informant and corroborated by arresting

officer that defendant would be driving specific vehicle at specific time on specific

road with specific amount of cocaine was sufficient to authorize an investigating stop

of defendants vehicle.); see also Gordon v. State, 242 Ga. App. 50, 52 (1) (528 SE2d

838) (2000).

Sirmans admits that when he was approached by Officer Hart, he “became very

irate” and told Officer Hart to “get out of here, you crazy.” Sirmans further admits

that when he was asked to stand with his hands on Officer Hart’s patrol vehicle, he

did not comply and moved his hands off of the hood of the vehicle. Officer Hart,

along with another officer, took Sirmans to the ground for not complying. “The right

to make an arrest or investigatory stop necessarily carries with it the right to use some

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degree of physical coercion or threat thereof to effect it.” (Punctuation and footnote

omitted.) Tittle, 256 Ga. App. at 863 (1).

After detaining Sirmans, illegal drugs consistent with the type that the

confidential informant stated that Sirmans would be carrying were found, with

Sirmans’ belongings. Sirmans admitted that the sunglasses and cell phone were his,

but denied knowledge of drugs. Under these circumstances, the arrest of Sirmans for

violations of the Georgia Controlled Substances Act and obstruction was legally

justifiable. See Sanchez v. State, 197 Ga. App. 470, 471 (1) (398 SE2d 740) (1990).

In the context of these facts, there is absolutely no evidence from which to

conclude that Special Agent Green or Officer Hart acted with actual malice or an

intent to injure Sirmans. It is undisputed that neither had interacted with Sirmans

before the date in question, and the sole evidence of malice asserted by Sirmans is

Officer Hart’s alleged use of a racial epithet.

Even after giving Sirmans’ evidence every benefit of the doubt, however, we

cannot conclude that his testimony regarding the use of a racial epithet, combined

with no other evidence of any intent to do something wrongful or illegal, could

authorize a finding of “actual malice” sufficient to pierce the shield of official

immunity. The trial court erred in denying Special Agent Green and Officer Hart’s

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motion for summary judgement on the basis of official immunity. See Delong, 271

Ga. App. at 759 (1) (reversing denial of summary judgement after finding the police

officer was entitled to official immunity); see also Stephens v. Zimmerman, 333 Ga.

App. 586, 591-593 (1) (b) (774 SE2d 811) (2015).

2. Because of our ruling in division (1), we need not address Special Agent

Green and Officer Hart ‘s remaining arguments.

Judgment reversed. Barnes, P. J. and Ray, J. concur.

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