Randall Jones, et al v. Officer Fransen, et al

Filing

Opinion issued by court as to Appellant A. A. Ayers, et al. Decision: Reversed and Remanded. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 05/19/2017

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 16-10715
_________________________
D.C. Docket No. 1:15-cv-02715-TWT

RANDALL KEVIN JONES,
Plaintiff-Appellee,
versus
OFFICER S. FRANSEN, in his individual capacity,
OFFICER TOWLER, in his individual capacity,
OFFICER ROSS, in his individual capacity,
K-9 DRACO, in his individual capacity,
CHIEF A.A. AYERS, and
GWINNETT COUNTY,

Defendants-Appellants.

__________________________
Appeal from the United States District Court
for the Northern District of Georgia
__________________________
(May 19, 2017)

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Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and URSULA
UNGARO, * District Judge.
ROSENBAUM, Circuit Judge:
In history and literature, the name “Draco” has been associated with some
notorious characters. Draco of ancient Greece is perhaps best known for the harsh
legal code he composed, which inspired the word “draconian.” Antonios Loizides,
Draco’s Law Code, ANCIENT HISTORY ENCYCLOPEDIA http://www.ancient.eu/
Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course,
is Harry Potter’s perpetually maleficent rival in the Harry Potter literary series.1
And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco
is a police canine who was involved in the apprehension of Plaintiff Randall Kevin
Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco
refused to release his bite.

Jones sued Draco, among others, for negligence.

Georgia law by its terms, however, does not provide for negligence actions directly
against dogs. We therefore hold as much today and reverse the district court’s
denial of Defendant-Appellants’ motion to dismiss Draco.

*

The Honorable Ursula Ungaro, United States District Judge for the Southern District of
Florida, sitting by designation.
1

See J.K. Rowling, Harry Potter and the Sorcerer’s Stone (1997); J.K. Rowling, Harry
Potter and the Chamber of Secrets (1998); J.K. Rowling, Harry Potter and the Prisoner of
Azkaban (1999); J.K. Rowling, Harry Potter and the Goblet of Fire (2000); J.K. Rowling, Harry
Potter and the Order of the Phoenix (2003); J.K. Rowling, Harry Potter and the Half-Blood
Prince (2005); J.K. Rowling, Harry Potter and the Deathly Hallows (2007).
2

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But while Georgia law does not allow for a negligence suit against a dog, it
does permit negligence claims against a state officer who is not entitled to official
immunity. Title 42, United States Code, Section 1983 likewise authorizes an
action against a police officer who employs a dog in an exercise of excessive force.
And Jones also sued the officers responsible for Draco’s encounter with Jones. In
response, Defendant-Appellant Officers invoked official and qualified immunity
and moved to dismiss. The district court summarily denied Defendant-Appellant
Officers’ motion. Today we must reverse that denial and dismiss the claims.
Jones has failed to allege facts establishing that the officer acted with malice, so
the officers are entitled to official immunity. Nor does binding precedent allow for
the conclusion that Defendant Officers’ employment of Draco in the circumstances
of this case violated Jones’s clearly established rights, so the officers have
qualified immunity.
I. 2
The trouble in this case began when Jones and his girlfriend broke up.
Following the split, on July 6, 2013, Jones’s ex-girlfriend called 911 to report that
Jones had broken into her apartment and was carrying a television to his car, which
was parked at her apartment complex.

2

We take the facts asserted here from the complaint and construe them in the light most
favorable to the plaintiff. Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir. 2016).
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Two of the officers who responded to the call included DefendantAppellants Gwinnett County Police Department Officers Brandon Towler and
Richard Ross. Towler and Ross searched the apartment-complex area for Jones.
Meanwhile, another officer claimed to have seen Jones carrying a bag and a
television near the apartment pool.
At some point, Defendant Officers believed that Jones had fled to a “steep
ravine pond area with high concert walls, boulders and vegetation.” DefendantAppellant Officer Scott Fransen, who worked with police-canine Draco, arrived on
the scene to look for Jones and issued what are known as K-9 warnings. After
hearing no response, Fransen and Draco entered the ravine to find Jones. Ross and
another officer provided backup.
During the search for Jones, Fransen saw Jones motionless, at the bottom of
the ravine. But Fransen had already released Draco, and Draco “r[a]n loose and
savagely attack[ed] and t[ore]” Jones’s left arm, even though Jones lay motionless
during the attack. Ross, who was also present, did nothing to protect Jones from
the attack.
After “a while” passed, which Jones described as “seem[ing] like a lifetime,”
Fransen tried to pull Draco from Jones’s arm, but Draco refused to yield. Finally,
however, Fransen was able to separate Draco from Jones. But unfortunately, the

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damage was done. This incident permanently disfigured and limited the use of
Jones’s arm.
II.
Jones filed suit against Fransen, Ross, Towler, Draco, Gwinett County, and
Gwinnett County Police Chief A.A. Ayers.3 In Count I, Jones alleged a claim
against Fransen under 42 U.S.C. § 1983 for the use of excessive force, in violation
of the Fourth Amendment to the United States Constitution. Count II asserted a
claim under § 1983 for excessive use of force, against the other officers, based on
their failure to intervene and stop the canine attack. In Count III, Jones brought a
claim for negligence against all Defendants. And finally, in Count IV, Jones set
forth a § 1983 claim against Gwinnett County, charging that through its allegedly
inadequate police training, it had violated his Fourth Amendment right to be free
from the use of excessive force.
Defendants moved to dismiss the case for failure to state a claim, invoking
qualified immunity with respect to Counts I and II. With regard to the state-law
negligence claim, Defendants contended, among other arguments, that the County
and Defendant Police Chief Ayers in his official capacity were entitled to
sovereign immunity, and Defendant Officers and Ayers in their individual
capacities were entitled to official immunity. The district court denied the motion.

3

Other officers were also sued, but they were not served.
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After setting forth the applicable law on the standard on a motion to dismiss, the
court wrote, “The Plaintiff has stated a plausible claim with respect to his
allegation that the canine officer subjected him to excessive force.

The

Defendants’ Motion to Dismiss . . . is DENIED. The issues of municipal liability
and qualified immunity may be revisited at the summary judgment stage.”
Defendants now appeal. Despite notice, however, Jones has not filed a brief
or otherwise appeared in the appeal proceedings.
III.
Title 28, United States Code, Section 1291 limits our appellate jurisdiction
to final decisions of the district courts. 28 U.S.C. § 1291. But we use a “practical
rather than a technical construction” to construe § 1291’s limitations. Royalty
Network, Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014) (citation and internal
quotation marks omitted). As a result, under what is known as the collateral-order
doctrine, § 1291 extends appellate jurisdiction over “not only judgments that
terminate an action, but also a small class of collateral rulings that, although they
do not end the litigation, are appropriately deemed ‘final.’” Id. (citation and
internal quotation marks omitted).

District-court decisions falling into this

category must meet three requirements: they must “(1) conclusively determine the
disputed question, (2) resolve an important issue completely separate from the

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merits of the action, and (3) be effectively unreviewable on appeal from a final
judgment.” Id. (citation and internal quotation marks omitted).
Here, Defendants appeal the district court’s denial of their motion to dismiss.
Generally, such an order does not qualify as a “final decision.” Parker v. Am.
Traffic Sols., 835 F.3d 1363, 1367 (11th Cir. 2016). But the Supreme Court has
long recognized that denial of a motion to dismiss on qualified-immunity grounds
“easily meets” the demands of the collateral-order doctrine because, among other
reasons, qualified immunity is an immunity not only from liability but also from
suit. See Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985).
For the same reason, defendants may immediately appeal an order denying
state official or sovereign immunity, provided that the applicable state law defines
the immunity at issue as one from suit instead of from just liability. Parker, 835
F.3d at 1367-68. Georgia law does. Griesel v. Hamlin, 963 F.2d 338, 341 (11th
Cir. 1992) (per curiam) (“sovereign immunity under Georgia law is an immunity
from suit”); Shekhawat v. Jones, 746 S.E.2d 89, 91 (Ga. 2013) (“official immunity
protects state employees from being sued in their personal capacities”) (emphasis
added and omitted); Ga. Code Ann. § 15-21-25(a) (“A state officer or employee
who commits a tort while acting within the scope of his or her official duties or
employment is not subject to lawsuit or liability therefor.”) (emphasis added).

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So we have jurisdiction to review the district court’s denial of qualified
immunity, sovereign immunity, and official immunity.

But that leaves the

question of whether we may review the district court’s decision to deny the
County’s motion to dismiss as it pertains to Jones’s § 1983 municipal-liability
claim. Decisions denying dismissal of such claims generally are not immediately
appealable in their own right, as they do not constitute “final decisions” within the
meaning of the collateral-order doctrine. Swint v. Chambers Cty. Comm’n, 514
U.S. 35, 43 (1995).
We therefore consider whether we may review the claim under the pendentappellate-jurisdiction doctrine. That doctrine allows us to “address [otherwise]
nonappealable orders if they are inextricably intertwined with an appealable
decision or if review of the former decision [is] necessary to ensure meaningful
review of the latter.” Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000)
(citation and internal quotation marks omitted) (alteration adopted). We have
explained that “[m]atters may be sufficiently intertwined when they implicate[] the
same facts and the same law.” Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir.
2016) (citation and internal quotation marks omitted) (alteration adopted).
Here, Gwinnett County makes no argument that the issue raised in the
municipal-liability claim under § 1983 is inextricably intertwined with the claims
of qualified, sovereign, or official immunity. Nor does it seem to us that the issue
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While the claims presented stem from a single

incident, the municipal-liability claim raises the wholly separate issue of whether
Gwinnett County had a policy, custom, or practice of deliberate indifference and
inadequate training of its officers regarding the use of police dogs. This is not an
issue that must be determined—or even considered—in resolving the immunity
claims.

Under these circumstances, we do not find the requirements of the

pendent-appellate-jurisdiction doctrine to be satisfied. See Swint, 514 U.S. at 51.
For this reason, we do not entertain Gwinnett County’s appeal as it relates to Count
IV, the § 1983 municipal-liability claim.
Our review of the district court’s denial of the various types of immunity
invoked in this case is de novo. Carollo v. Boria, 833 F.3d 1322, 1328 (11th Cir.
2016) (qualified immunity); Johnson v. Conner, 720 F.3d 1311, 1313 (11th Cir.
2013) (sovereign immunity); Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016)
(official immunity). In conducting our review, we accept as true all well-pled
factual allegations, and we view the facts in the light most favorable to the
plaintiff. Id. (citation and quotation marks omitted).
V.
A. The § 1983 Claims
We begin our discussion by considering Jones’s § 1983 claims against
Defendant Officers in their individual capacities. Defendants assert that the district
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court erred when it denied them qualified immunity under the facts of the
complaint as pled in this case. We agree.
The qualified-immunity defense reflects an effort to balance “the need to
hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
The doctrine resolves this balance by protecting government officials engaged in
discretionary functions and sued in their individual capacities unless they violate
“clearly established federal statutory or constitutional rights of which a reasonable
person would have known.” Keating v. City of Miami, 598 F.3d 753, 762 (11th
Cir. 2010) (quotation marks and brackets omitted).
As a result, qualified immunity shields from liability “all but the plainly
incompetent or one who is knowingly violating the federal law.” Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002). But the doctrine’s protections do not extend
to one who “knew or reasonably should have known that the action he took within
his sphere of official responsibility would violate the constitutional rights of the
[plaintiff].” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (internal quotation
marks and alteration omitted).
To invoke qualified immunity, a public official must first demonstrate that
he was acting within the scope of his or her discretionary authority. Maddox v.
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Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013). As we have explained the term
“discretionary authority,” it “include[s] all actions of a governmental official that
(1) were undertaken pursuant to the performance of his duties, and (2) were within
the scope of his authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)
(internal quotation marks omitted).

Here, it is clear that Defendant Officers

satisfied this requirement, as they engaged in all of the challenged actions while on
duty as police officers conducting investigative and seizure functions.
Because Defendant Officers have established that they were acting within
the scope of their discretionary authority, the burden shifts to Jones to demonstrate
that qualified immunity is inappropriate. See id. To do that, Jones must show that,
when viewed in the light most favorable to him, the facts demonstrate that
Defendant Officers violated Jones’s constitutional right and that that right was
“clearly established . . . in light of the specific context of the case, not as a broad
general proposition[,]” at the time of Defendant officers’ actions. Saucier v. Katz,
533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson, 555
U.S. 223. We may decide these issues in either order, but, to survive a qualifiedimmunity defense, Jones must satisfy both showings. Maddox, 727 F.3d at 112021 (citation omitted).
Here, we address the “clearly established” inquiry first.

Because we

conclude that Jones’s right was not clearly established in the specific context of the
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facts in this case, we do not reach the question of whether Defendants violated
Jones’s constitutional rights.
When we consider whether the law clearly established the relevant conduct
as a constitutional violation at the time that Defendant Officers engaged in the
challenged acts, we look for “fair warning” to officers that the conduct at issue
violated a constitutional right. Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir.
2011) (citations and quotation marks omitted). “Fair warning” comes in the form
of binding caselaw from the Supreme Court, the Eleventh Circuit, or the highest
court of the state (Georgia, here) that “make[s] it obvious to all reasonable
government actors, in the defendant’s place, that what he is doing violates a federal
law.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)
(citation omitted).
A plaintiff may demonstrate in any one of three ways that a defendant had
“fair warning” that the right he violated was clearly established. Loftus v. ClarkMoore, 690 F.3d 1200, 1204 (11th Cir. 2012) (citation and internal quotation
marks omitted). First, a plaintiff may point to binding precedent that is materially
similar. Id. This method requires us to consider “whether the factual scenario that
the official faced is fairly distinguishable from the circumstances facing a
government official in a previous case.” Id. (citation and internal quotation marks
omitted).
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Second, a plaintiff may invoke a “broader, clearly established principle” that
he asserts “should control the novel facts [of the] situation.”

Id. at 1204-05

(citation and internal quotation marks omitted). Because “fair warning” is the
driving force behind a determination that a right has been clearly established, when
a plaintiff proceeds in this way, he must show that caselaw demonstrated the
principle with “obvious clarity . . . so that every objectively reasonable government
official facing the circumstances would know that the official’s conduct did violate
federal law when the official acted.” Id. at 1205 (citation and internal quotation
marks omitted). The violation of a right may also fall into this category when
“[t]he reasoning, though not the holding of prior cases . . . send[s] the same
message to reasonable officers in novel factual situations.” Mercado v. City of
Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citation and internal quotation
marks omitted).
Finally, a right is “clearly established” when the defendant’s conduct “lies so
obviously at the very core of what the [Fourth Amendment] prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of case law.” Loftus, 690 F.3d at 1205 (citation and internal quotation
marks omitted).

Similarly, we recognize the obvious-clarity exception where

conduct is “so bad that case law is not needed to establish that the conduct cannot

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be lawful.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002). We have
described this category as “narrow.” Priester, 208 F.3d at 926-27.
Here, while we have relevant excessive-force precedent in this Circuit, no
binding case involves a factual scenario that is similar enough to the one here so as
to have put the officers on notice that what they did violated a clearly established
right.
In his complaint, Jones asserts that Defendant Officers violated his Fourth
Amendment right to be free from the use of excessive force.

We evaluate

excessive-force claims under the Fourth Amendment’s “objective reasonableness”
standard. Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. 2009) (per curiam)
(citation omitted). This standard directs us to ask “whether the officer’s conduct is
objectively reasonable in light of the facts confronting the officer.” Id. (quoting
Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)) (internal quotation marks
omitted). When we engage in our analysis, we must do so “from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,”
id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (internal quotation
marks omitted), and we keep in mind that “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.” Graham, 490 U.S. at 396 (citation
omitted).
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The standard requires us to carefully balance “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing government interests at stake.”

Crenshaw, 556 F.3d at 1290

(quoting Graham, 490 U.S. at 396) (internal quotation marks omitted). Factors we
account for include (1) the severity of the crime; (2) whether the individual “poses
an immediate threat to the safety of the officers or others”; (3) whether the
individual actively resists or tries to evade arrest by flight, id. (quoting Graham,
490 U.S. at 396); (4) the need for force to be applied; (5) the amount of force
applied in light of the nature of the need; (6) the severity of the injury; and (7)
whether officers applied force “in good faith or [rather did so] maliciously and
sadistically,” id. (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.
2008)).
And where, as in this case, police-canine bites are the form that the alleged
use of excessive force takes, we have some further guidance in our binding
precedent: Priester, 208 F.3d 919, and Crenshaw, 556 F.3d 1283. Priester and
Crenshaw fall near opposite ends of our dog-bite excessive-force spectrum. They
show how we have applied the Graham and Hadley factors to determine whether a
Fourth Amendment violation occurred in the context of police-dog-bite cases.
In Priester, the crime at issue was one of the more minor ones; Priester was
suspected of having stolen roughly $20’s worth of snacks from a golf shop.
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Priester, 208 F.3d at 927. Nor did anything suggest that Priester was armed or that
he otherwise posed an immediate threat to the officers or anyone else. Id. And
though Priester originally fled the officers, once they discovered him, he
immediately submitted to them. Id. Yet the officer who controlled the police dog
nonetheless ordered his dog to attack and bite Priester for at least two minutes and
threatened to kill Priester when Priester tried to resist the attack. Id. As a result of
the attack, Priester suffered fourteen puncture wounds to his legs. Id. at 924. We
easily concluded that the officer and his officer colleague who failed to intervene
violated Priester’s Fourth Amendment right to be free from the use of excessive
force.4 Id. at 927-28.
In Crenshaw, on the other hand, we found that the canine-controlling officer
and his colleague who did not intervene did not violate Crenshaw’s Fourth
Amendment right to be free from the use of excessive force, when the officer
unleashed his police dog on Crenshaw.

Crenshaw, 556 F.3d at 1293-94.

Considering the various evaluative factors, we noted that the crime at issue was far
4

Similarly, in Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012), another case
involving a dog bite, we concluded that Priester gave the officer fair warning that his actions
violated the plaintiff’s Fourth Amendment right to be free from the use of excessive force. In that
case, the subject was pulled over on suspicion of having a suspended driver’s license. He fled
his car, and officers used a police canine to find him. When the suspect saw the officers
approaching, he surrendered. The police dog began biting him, and the suspect pled, “I’m not
resisting” and begged the officers to call off the dog. Instead, the officers stood over the suspect
and the police dog as the dog continued to bite the suspect for five to seven minutes. Finally, the
officers cuffed the suspect and called off the dog. We explained that all “the same factors [from
Priester] weigh[ed] against the need for extraordinary force” in Edwards, yet the officer in
Edwards employed “greater force than did the officers arresting Priester.” Id. at 1298.
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more serious than that involved in Priester; Crenshaw was believed to have
committed at least one, and possibly two, armed robberies. Id. at 1292. Crenshaw
also violently fled police, crashing his car into a marked police vehicle before
running into very dense woods and hiding in brush. Id. As a result, officers
reasonably thought Crenshaw posed an immediate threat to at least themselves.
See id. And because it was dark and officers had lost track of Crenshaw before
Crenshaw yelled out, “I am over here,” we found it reasonable for the officers to be
concerned about a possible ambush and to continue to consider themselves at
immediate risk from Crenshaw when they released the dog. See id. at 1291-93.
The attack resulted in multiple puncture wounds to Crenshaw’s legs, including one
that required six stitches to close. Id. at 1287.
The facts in Jones’s case land somewhere between those involved in Priester
and those in Crenshaw.

The alleged crime arguably was more serious than

Priester’s yet less so than Crenshaw’s. Jones purportedly stole a television from
his former girlfriend’s residence. And while domestic-related crimes certainly
have the potential to be extremely serious and dangerous, nothing about this
particular incident indicated that it fell into that category. At the time Jones’s exgirlfriend reported the theft, Jones was already out of the apartment, and his exgirlfriend gave no indication that he had been violent or armed.

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On the other hand, when Jones fled police, unlike Priester, he did not
ultimately overtly surrender himself.

Instead, he led police into physically

challenging terrain with brush and boulders, similar to the place where Crenshaw
fled, and he did not respond in any way to Fransen’s K-9 warnings. 5 Like the
Crenshaw officers, a reasonable officer in one of Defendants’ places could have
been concerned, at the time Draco was released, about entering the heavy brush to
apprehend Jones and being met by a potential ambush.
So Jones’s case is not directly on all fours with either Priester or Crenshaw.
As a result, neither case alone could have provided Defendant Officers with the
type of “fair notice” necessary to breach qualified immunity. And considering the
cases together helps no more since Priester and Crenshaw reached opposite
conclusions concerning whether an excessive-force violation occurred.
We therefore turn to the second method for proving that the right in this case
was clearly established at the time of the violation. As we have noted, Jones filed
no appellate brief. In the district court, though, Jones appears to have attempted to
rely on this second way to demonstrate a clearly established right. He invoked the

5

Though the complaint asserts that Draco bit Jones for “a while,” which Jones described
as “seem[ing] like a lifetime,” nothing in the complaint suggests that the officers gratuitously
prolonged the attack under the circumstances. Rather, the complaint notes the steep ravine walls,
boulders, and vegetation that the officers had to navigate to reach Jones after Draco had caught
up with him. In the absence of any indication that the officers had the ability to shorten the
length of the bite period, we cannot conclude that the officers employed Draco sadistically or
gratuitously prolonged the attack.
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general principle that “[t]he Fourth Amendment’s freedom from unreasonable
searches and seizures encompasses the plain right to be free from the use of
excessive force in the course of an arrest.” (citations and internal quotation marks
omitted).
But the Supreme Court has repeatedly instructed us that “‘clearly established
law’ should not be defined ‘at a high level of generality” and must instead be
“‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552
(2017) (citation omitted). The fact that the Fourth Amendment protects against
the use of excessive force during an arrest does not provide an officer with any
guidance as to what constitutes an excessive use of force. So this general principle
is not the type of “broader, clearly established principle [that] should control the
novel facts [of the] situation” here. Loftus, 690 F.3d at 1204-05 (citation and
internal quotation marks omitted).
Finally, Jones did not argue—and particularly in light of Priester and
Crenshaw, we cannot find—that Defendants’ actions in this case “lie[] so
obviously at the very core of what the [Fourth Amendment] prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of case law.” Loftus, 690 F.3d at 1205 (citation and internal quotation
marks omitted).

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For these reasons, we must conclude that Jones’s constitutional right was not
clearly established when Defendant Officers engaged in the challenged behavior.
As a result, Defendant Officers are entitled to qualified immunity, and the district
court’s ruling to the contrary must be reversed.
B. The Negligence Claim
1. Sovereign Immunity
As we have mentioned, Jones brought a negligence claim against Gwinnett
County and Sheriff Ayers in his official capacity, and Defendants sought dismissal
of this claim on the basis of sovereign immunity. The County and Sheriff Ayers
appeal the district court’s denial of their motion to dismiss on the basis of
sovereign immunity.
The Georgia constitution endows “the state and all of its departments and
agencies” with sovereign immunity.

Ga. Const. art. I § 2, ¶ IX; Gilbert v.

Richardson, 452 S.E.2d 476, 478 (Ga. 1994).

Georgia’s sovereign-immunity

reservation also extends to counties. Gilbert, 452 S.E.2d at 479; see also O.C.G.A.
§ 36-1-4 (“A county is not liable to suit for any cause of action unless made so by
statute.”).
Nevertheless, under Georgia law, a statute may expressly waive sovereign
immunity and set forth the parameters of any such waiver. Grech v. Clayton Cty.,
335 F.3d 1326, 1341 (11th Cir. 2003) (citing Ga. Const. art. I, § 2, ¶ 9(e)). But the
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party seeking to impose liability bears the burden of proof in establishing waiver.
Effingham Cty. v. Rhodes, 705 S.E.2d 856, 858-59 (Ga. App. 2010).
In the district court, Jones did not assert a waiver in response to the County’s
and Sheriff Ayers’s invocation of sovereign immunity. And we have already noted
that he failed to file an appellate brief. Under these circumstances, Jones has not
met his burden to establish a waiver of sovereign immunity with respect to the
County and to Sheriff Ayers in his official capacity. For this reason, the district
court’s denial of the motion to dismiss the claims against the County and Ayers in
his official capacity must be reversed.
2. Official Immunity
Chief Ayers, Defendant Officers and Draco also assert that the negligence
claim filed against them in their individual capacities should have been dismissed.
We agree.
a.

The Claims Against Defendants Fransen, Towler, Ross, and
Ayers

The Georgia constitution bestows official immunity on county government
officers acting in a discretionary function and sued in their individual capacity
unless they “act with actual malice or with actual intent to cause injury in the
performance of their official functions.” Ga. Const. art. I, § 2, ¶ 9(d); Phillips v.
Hanse, 637 S.E.2d 11, 12 (Ga. 2006); see also O.C.G.A. § 36-33-4 (“Members of
the council and other officers of a municipal corporation shall be personally liable
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to one who sustains special damages as the result of any official act of such
officers if done oppressively, maliciously, corruptly, or without authority of law.”).
“Actual malice” requires a “deliberate intention to do wrong.” West v. Davis, 767
F.3d 1063, 1073 (11th Cir. 2014) (quoting Adams v. Hazelwood, 520 S.E.2d 896,
898 (Ga. 1999) (citations omitted)).
Here, Jones’s complaint sets forth no facts suggesting that the officers acted
maliciously or with an actual intent to cause harm. Indeed, beyond naming Chief
Ayers in his individual capacity as a defendant, the complaint makes no allegations
whatsoever against him in that capacity. As for the other Defendant Officers, the
law did not put them on notice of the wrongfulness of releasing Draco, and no
other facts alleged suggest that any of the officers harbored actual ill intentions
against Jones. Nor is the officers’ intent to release Draco and apprehend Jones, in
and of itself, sufficient under the circumstances of this case to establish a
“deliberate intention to do wrong.” As a result, the officers are entitled to official
immunity for the negligence claims against them in their individual capacities, and
Count III should have been dismissed. The district court’s ruling to the contrary
must be reversed.
b.

The Claim Against Draco6

6

We have jurisdiction to review this issue under the pendent-appellate-jurisdiction
doctrine because the question of whether a dog may be sued at all for negligence is inextricably
intertwined with the question of whether, if so, a dog may be entitled to official immunity. If we
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Jones did not limit himself to charging negligence against only Defendants
Fransen, Towler, Ross, and Ayers. Instead, Jones also alleged in his complaint that
“Officer K-9 Draco of the Gwinnett County Police Department” was liable for
negligence in his individual capacity. We are not persuaded.
Georgia has codified the tort of negligence. And under the express terms of
Georgia law, only a person may be held liable for breaching a legal duty:
When the law requires a person to perform an act for the
benefit of another or to refrain from doing an act which
may injure another, although no cause of action is given
in express terms, the injured party may recover for the
breach of such legal duty if he suffers damages thereby.”
O.C.G.A. § 51-1-6 (emphasis added); see also O.C.G.A. § 51-2-7 (“A person who
owns or keeps a vicious or dangerous animal of any kind and who, by careless
management or by allowing the animal to go at liberty, causes injury to another
person . . . may be liable in damages . . . .”) 7 (emphasis added).
Not surprisingly, O.C.G.A. § 50-21-22(4), which we use to determine the
meaning of words used in Georgia’s tort statutes, does not define the word

did not dispose of the claim against Draco on the ground that Georgia law does not authorize a
negligence action against a dog, we would have to determine whether Draco could claim official
immunity and, if so, how. In this section, we explain the problems with that scenario.
7

O.C.G.A. § 4-8-21(b) provides that “[n]o dog shall be classified as a dangerous dog or
vicious dog [for purposes of O.C.G.A. § 51-2-7] for actions that occur while the dog is being
used by a law enforcement . . . officer to carry out the law enforcement . . . officer’s official
duties.” See also Eshleman v. Key, 774 S.E.2d 96, 99 (Ga. 2015) (assuming for purposes of
argument that a police canine may qualify as a “vicious or dangerous animal” under O.C.G.A. §
51-2-7, while acknowledging that § 4-8-21(b) precludes that conclusion).
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“person” to include dogs. See id. Rather, it limits the definition of “person” to “a
natural person, corporation, firm, partnership, association, or other such entity.”
O.C.G.A. § 50-21-22(4). A dog does not qualify as any of these things. Cf. Miles
v. City Council of Augusta, 710 F.2d 1542, 1544 n.5 (11th Cir. 1983) (declining to
hear a claim that a cat’s right to free speech was infringed because a cat “cannot be
considered a ‘person’”).
But even if any ambiguity existed over whether a police dog may be sued in
tort for acts committed while serving as a police dog, the notion of a tort lawsuit
directly against a dog in these circumstances would create an abundance of
practical problems as well: even setting aside the issues of service on a dog and a
dog’s retention of legal representation, and even assuming that Draco can qualify
as a “[s]tate officer or employee” under Georgia law,8 how could we reasonably
apply Georgia’s concept of official immunity? How would we determine whether
the dog was acting in a discretionary or ministerial capacity when it bit the
plaintiff? If it were acting in a discretionary capacity, how would we discern
whether it had a “deliberate intention to do wrong”? And if it were acting in a
ministerial capacity and were somehow liable, could the individually liable dog be

8

Though O.C.G.A. § 50-21-22(7) defines “[s]tate officer or employee” to include “law
enforcement officers,” the remainder of the definition suggests that the term “law enforcement
officers” refers to “persons,” since the word “person” or “persons” is used three other times in
the definition, and the definition does not appear to contemplate the inclusion of animals.
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expected as a practical matter to pay damages? And if so, how? 9 These kinds of
issues, all of which flirt with holding a dog civilly liable in its own right—not as
the instrument or responsibility of another—are simply not suited for resolution in
9

Similarly, the Seventh Circuit rejected the notion that a dog could be sued under 42
U.S.C. § 1983. In reaching this conclusion, the Seventh Circuit identified numerous dilemmas
that would arise if the rule were otherwise:
Was [the dog] served with process? Did he retain as his lawyer
[the same attorney] who purports to represent all . . . defendants?
Was [the dog] offered the right of self-representation under 28
U.S.C. § 1654? What relief does [the plaintiff] seek from a dog—
[the dog’s] awards, perhaps? Could [the dog] claim qualified
immunity? If a reasonable person in the defendant’s position
would not have understood that what he was doing violated the
Constitution, damages are unavailable. Must we then ask whether
a reasonable dog in [the defendant dog’s] position should have
understood that he was violating [the plaintiff’s] constitutional
rights?
Dye v. Wargo, 253 F.3d 296, 299 (7th Cir. 2001) (citation omitted).
Draco suggests that Jones also seeks to recover against him under § 1983. We do not
read the complaint the same way. But to the extent that the complaint could be understood to sue
Draco under § 1983, that cause of action would also necessarily fail. In addition to the problems
that the Seventh Circuit identified, the terms of § 1983 do not appear to contemplate such an
action, either. Section 1983 creates a cause of action against “[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983
(emphasis added). The Dictionary Act, 1 U.S.C. § 1, which we use to “determin[e] the meaning
of any Act of Congress, unless the context indicates otherwise,” does not expressly include dogs
in its definition of “person.” See id. Instead, it defines the term “person” to “include
corporations, companies, associations, firms, partnerships, societies, and joint stock companies,
as well as individuals.” Id. A dog does not obviously fall into any of these categories. And
while the word “individual” can be ambiguous, the dictionary’s primary definitions for it refer
solely to a human being: “1a. A single human considered apart from a society or community . . .
. b. A human regarded as a distinctive or unique personality.” Individual, The American
Heritage Dictionary of the English Language (5th ed. 2011) (emphasis added). But see id. at
definition 2 (“A single organism as distinguished from a species, community, or group.”). Nor
does anything in the context of § 1983 suggest that Congress intended to authorize lawsuits
directly against dogs. And, as we have noted above, outside the context of § 1983, we have also
previously found that an animal does not qualify as a “person.” Miles, 710 F.2d at 1544 n.5.
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our adversarial process. For all of these reasons, we must conclude that Draco in
his individual capacity may not be sued for negligence under Georgia law, and the
district court’s denial of the motion to dismiss Draco must be reversed.
VI.
In summary, we conclude that Defendant Officers Fransen, Towler, and
Ross are entitled to qualified immunity because binding precedent does not clearly
establish that their actions in allowing Draco to apprehend Jones violated Jones’s
Fourth Amendment rights. So we REVERSE the order of the district court and
REMAND with instructions to dismiss Counts I and II of Jones’s complaint. We
also hold that a dog may not be sued individually for negligence since a dog is not
a “person.” And because we conclude that the County and Chief Ayers in his
official capacity have sovereign immunity, and Defendants Fransen, Towler, Ross,
and Ayers are entitled to official immunity for the claims against them in their
individual capacities, we REVERSE and REMAND with instructions that the
district court dismiss Count III. We decline to address the propriety of the district
court’s denial of dismissal on Count IV in the interlocutory posture of the case.
REVERSED and REMANDED.

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