HAYES v. FLOWERS

Filing 17

ORDER denying 12 Motion for Summary Judgment.Ordered by U.S. District Judge W LOUIS SANDS on 7/16/14 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
RICHARD HAYES,
Plaintiff,
v.
CHARLES FLOWERS,
Defendant.

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CASE NO.: 1:13-CV-25 (WLS)

ORDER
Presently pending before the Court is Defendant’s Motion for Summary Judgment
(Doc. 12). For the following reasons, Defendant’s Motion for Summary Judgment (Doc. 12)
is DENIED.
I.

PROCEDURAL HISTORY
On January 11, 2013, Plaintiff Richard Hayes filed a Complaint against Defendant

Charles Flowers in the State Court of Dougherty County, Georgia. (Doc. 1-3 at 5.) Therein,
Hayes asserted federal constitutional tort claims against Flowers for arrest without probable
cause, false imprisonment, and malicious prosecution, and state claims for false arrest and
false imprisonment. (Id.) On February 18, 2013, Flowers removed the case from state court
to this Court, asserting that the matter fell under the Court’s federal question jurisdiction and
supplemental jurisdiction. (See Doc. 1.) On December 9, 2013, after the close of discovery,
Flowers moved for summary judgment on Hayes’ claims on the ground that he is entitled to
qualified immunity. (See Doc. 12-1.) On January 2, 2014, Hayes filed a Response. (Doc.
13). On January 15, 2014, Flowers filed a Reply. (Doc. 15.) Thus, the above-referenced
Motion is ripe for review. See M.D. Ga. L.R. 7.3.1(a).

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II.

SUMMARY JUDGMENT STANDARD
A. Federal Rule of Civil Procedure 56
“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). “A genuine issue
of material fact does not exist unless there is sufficient evidence favoring the nonmoving
party for a reasonable jury to return a verdict in its favor.” Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). “An issue of fact is ‘material’ if it is a legal element of
the claim under the applicable substantive law which might affect the outcome of the case.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “It is ‘genuine’ if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965
F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Chapman, 229 F.3d at 1023. The movant can meet this burden by presenting evidence
showing that there is no dispute of material fact, or by demonstrating to the district court
that the nonmoving party has failed to present evidence in support of some element of its
case on which it bears the ultimate burden of proof. See Celotex, 477 U.S. at 322-24. Once
the movant has met its burden, the nonmoving party is required “to go beyond the
pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id. at
324. To avoid summary judgment, the nonmoving party “must do more than summarily
deny the allegations or ‘show that there is some metaphysical doubt as to the material
facts.’ ” Matsushita, 475 U.S. at 586 (citations omitted). Instead, the nonmovant must point
to competent record evidence that would be admissible at trial. See also Jones v. UPS Ground
Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322
(11th Cir. 1999)) (noting that hearsay may be considered on a motion for summary judgment

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only if it “could be reduced to admissible evidence at trial or reduced to admissible form.”).
Such evidence may include affidavits or declarations that are based on personal knowledge
of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).
On a motion for summary judgment, the Court must view all evidence and factual
inferences drawn therefrom in the light most favorable to the nonmoving party and
determine whether that evidence could reasonably sustain a jury verdict. See Celotex, 477 U.S.
at 322-23; Allen, 121 F.3d at 646. However, the Court must grant summary judgment if
there is no genuine issue of material fact and the movant is entitled to summary judgment as
a matter of law. Fed. R. Civ. P. 56(c).
B. Local Rule 56
Local Rule 56 requires the following:
The respondent to a motion for summary judgment shall attach to the
response a separate and concise statement of material facts, numbered
separately, to which the respondent contends there exists a genuine
issue to be tried. Response shall be made to each of the movant's
numbered material facts. All material facts contained in the moving
party's statement which are not specifically controverted by the
respondent in respondent's statement shall be deemed to have been
admitted, unless otherwise inappropriate.
M.D. Ga. L.R. 56.

Here, Flowers properly filed a summary judgment motion with a

statement of undisputed facts, as is required by the Federal Rules of Civil Procedure and the
Local Rules of this Court. (See Docs. 12-1 & 12-2.) Likewise, Hayes filed the proper
response to Flowers’ statement of material facts.

(Doc. 13.)

Having established the

applicable standards, the Court will proceed to the facts.
III.

RELEVANT FACTUAL BACKGROUND
The following facts are derived from the Complaint (Doc. 1-3); Flowers’ Answer

(Doc. 3); Flowers’ Statement of Undisputed Facts (Doc. 12-2); Hayes’ Response to Flowers’
Statement of Material Facts (Doc. 13); and the record in this case. Where relevant, the
factual summary also contains undisputed and disputed facts derived from the pleadings, the
discovery and disclosure materials on file, and any affidavits, all of which are construed in a

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light most favorable to Hayes as the nonmoving party. See Fed. R. Civ. P. 56; Celotex, 477
U.S. at 322-23.
At all times relevant to this case, Defendant Charles Flowers was acting in his role as
an Investigator for the City of Albany’s Police Department. (Docs. 12-2 at ¶ 1, 13 at ¶ 1.)
On or about September 13, 2009, Flowers began an investigation in response to a call from a
concerned citizen. (Docs. 12-2 at ¶ 2, 13 at ¶ 2.) Flowers began his investigation by
speaking with the concerned citizen on Johnny W. Williams Road in Albany, Georgia.
(Docs. 12-2 at ¶ 3, 13 at ¶ 3.) That person told Flowers that he personally witnessed several
male individuals gathered at a residence near South Madison Street and Urqhart Avenue.
(Doc. 12 at 5 ¶ 3.) The concerned citizen witnessed someone in the group say “oh no we
can’t have this” and 3-4 individuals in the group began walking toward Johnny W. Williams
Road on South Madison Street. (Id.) At that time, the concerned citizen observed several
gunshots originate from that group. (Id.)
Flowers was assisted by Investigator Tyrone Griffin of the Albany Police
Department. (Docs. 12-2 at ¶ 4, 13 at ¶ 4.) Griffin told Flowers that Dontavious Morris
a/k/a “Go’way” resided at the residence where the group congregated. (Doc. 12 at 5 ¶ 4; see
also Doc. 12 at 13 ¶ 8.) When confronted, Morris told Flowers that fifteen individuals were
on the front porch of his house at 2221 South Madison Street. (Id.) Morris identified
Plaintiff Richard Hayes a/k/a “Buddy” (“Hayes”), Robert Hayes a/k/a “Big Boo” (“Robert
Hayes”), and Antonio Williams as three individuals in the group on his porch. (Doc. 12 at 5
¶ 4, 13 ¶ 8.) Morris stated that, although Hayes was present at his house, Hayes was not
involved in the shooting, and that he was not with Antonio Williams when the shooting
occurred. 1 (Doc. 13-2 at 1.)
Based on the information obtained from Morris, Flowers and Griffin interviewed
Hayes, Robert Hayes, Antonio Williams, and Akeem Hines. (Docs. 12-2 at ¶ 5, 13 at ¶ 5.)
Morris’ affidavit states that he did not tell Flowers that Hayes was one of the individuals walking toward
Johnny W. Williams Road with the small group of individuals, whereas Flowers’ affidavit states that Morris
told him that Hayes was with that group. (Compare Doc. 12 at 4-5 ¶ 4 with Doc. 13-2 at 1.) Neither Party
introduced the audio recording, if any, of Morris’ interview with police. Because the facts must be construed
in a light most favorable to Hayes as the nonmovant on summary judgment, the Court construes the facts as
asserted by Morris.
1

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None of those individuals stated that Hayes was present with the small group when the
shots were fired, and none of those individuals stated that Hayes participated in the
shooting, other than being present. 2 (See Docs. 12-3—12-5, 14, 16.)
On October 22, 2009, Flowers arrested Hayes and took him into custody. (See Doc.
11-1 at 5 & 8.) On October 23, 2009, Flowers prepared an affidavit and presented it to
Magistrate Judge Victoria Darrisaw. 3 (Docs. 12 at 8 ¶ 11, 12-2 at ¶ 6, 13 at ¶ 6.) Judge
Darrisaw issued arrest warrants for Hayes for the offenses of “Aggravated Assault (party to a
crime)” under Ga. Code Ann. § 16-5-21 and “Gang Participation” under Ga. Code Ann.
§ 16-15-4 in that Hayes “did walk in the 2200 Blk. of S. Madison St. with Antonio Williams
(Southside Blood) while he shot an unknown caliber handgun at James Green (Gangsta
Disciple).” (See Doc. 11-1.) On December 2, 2009, Hayes, Robert Hayes, and Antonio
Williams were indicted by a Dougherty County Grand Jury for Aggravated Assault/Gang
Participation. (Docs. 11-1 at 2, 12-2 at ¶ 7, 13 at ¶ 7.) The District Attorney’s Office
declined to prosecute the referenced charges against Hayes. (Docs. 12-2 at ¶ 9, 13 at ¶ 9.)
VI.

DISCUSSION
A. Federal Law Claims
Flowers argues that he is entitled to qualified immunity because he had arguable

probable cause to arrest Hayes, and that his belief that he had probable cause is supported
by the arrest warrant and Grand Jury indictment. (Doc. 12-1 at 3.) Flowers does not state
the crime for which he had arguable probable cause to arrest Hayes. (See Doc. 12-1.) Also,
Flowers does not make any specific argument—that is, other than the referenced arguable
Morris’ affidavit and the audio recording of the interview with Williams contradict Flowers’ assertion that
Morris and Williams indicated that Hayes stood with Williams when he fired shots at James Green. (See
Docs. 12, 12-2, 13, 13-2, 14, 16.) Because the Court must construe the evidence in a light most favorable to
the nonmovant, the Court construes the evidence as showing that neither individual stated that Hayes was
with the small group when shots were fired. As to Hayes and Robert Hayes, the recordings do not clearly
establish whether either of those individuals stated that Hayes was with the small group. In any event, no one
stated that Hayes’ participation was any more than mere presence.
3 Although the arrest warrants do not specifically state that Hayes was arrested before the warrants were
issued, the warrants do state October 22, 2009 was the “date jailed.” (Doc. 11-1 at 5 & 8.) The applications
for the warrants bear Judge Darrisaw’s signature below the words “sworn to and subscribed before me on
this 23 day of Oct. 2009.” (Doc. 11-1 at 6 & 9.) Because the Court must construe the facts in a light most
favorable to Hayes as the nonmovant, the Court construes the facts as establishing that Hayes was arrested
before the arrest warrants were issued.
2

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probable cause argument—as to any of the particular federal claims. (See id. at 3-5.) Hayes
argues that Flowers did not have arguable probable cause that he committed any crime
because mere presence at the scene of a crime is not a crime. (See Doc. 13-1 at 3.) Hayes
asserts that the only fact allegedly known by Flowers at the time of the arrest was that Hayes
was present when Williams shot his gun. (Id.) Hayes submitted an audio recording of the
interview of Williams; Flowers submitted audio recordings of the interviews of Hayes and
Robert Hayes. (Docs. 14 & 16.)
“Section 1983 affords relief for individuals who have been deprived of a
constitutional right by an individual who was acting under color of state law.” Lowe v.
Aldridge, 958 F.2d 1565, 1569 (11th Cir. 1992) (citing Flagg Brothers, Inc. v. Brooks, 436 U.S.
149, 156-57 (1978)). “This seemingly broad protection notwithstanding, the defense of
qualified immunity eliminates the relief otherwise available under § 1983 in many cases.”
Herbig v. Kretzer, No. 13-14710, 2014 WL 1327926, *1 (11th Cir. Apr. 4, 2014). The Court
determines whether qualified immunity applies by following a two-step analysis. Id. First,
the official must demonstrate that he was acting within his discretionary authority. Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citing Courson v. McMillian, 939 F.2d 1479, 1487
(11th Cir. 1991)) (internal citations omitted).

“An officer acts within the scope of his

discretionary authority when his conduct is undertaken pursuant to the performance of his
official duties.” Clark v. City of Atlanta, 544 F. App’x 848, 852 (11th Cir. 2013) (citing Harbert
Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998)). Here, it is undisputed that Flowers
was acting within his discretionary authority when he arrested Hayes. (See Doc. 13 at ¶ 1.)
In the second step of the qualified immunity analysis, “ ‘the burden shifts to the
plaintiff to show lack of good faith on the defendant’s part,’ a burden that is met by proof
that the defendant’s conduct ‘violated clearly established constitutional law.’ ” Herbig, 2014
WL 1237926 at *1. To meet that burden, Hayes must establish (1) that the facts, “[t]aken in
the light most favorable to [him,] show the officer’s conduct violated a constitutional right”;
and (2) the right violated was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001). If
Hayes fails to establish either prong, Flowers is protected by qualified immunity. See Pearson
v. Callahan, 555 U.S. 223, 236 (2009).

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i.

Unlawful arrest

“[W]arrantless arrest without probable cause violates the Constitution and forms the
basis for a section 1983 claim.” Lindsey v. Storey, 936 F.2d 554, 562 (11th Cir. 1991) (citing
Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990)); see Wood v. Kesler, 323 F.3d 872, 828
(11th Cir. 2003). “Qualified immunity will shield [Flowers] from a claim of false arrest
without probable cause if there was arguable probable cause, i.e., if a reasonable officer,
knowing what [Flowers] knew [at the time of Hayes’ arrest], could have believed there was
probable cause for the warrantless arrest.” Jones, 174 F.3d at 1283 (citing Gold v. City of
Miami, 121 F.3d 1442, 1445 (11th Cir. 1997)) (emphasis supplied). For a reasonable officer
to believe the arrest was supported by probable cause, however, there must be an
“objectively reasonable” basis for such belief. United States v. Brazel, 102 F.3d 1120, 1148
(11th Cir. 1997) (citing United States v. Sledge, 650 F.2d 1075, 1079 (9th Cir. 1981)). In other
words, the officer’s belief cannot be based on a mistake of law. See United States v. Mariscal,
285 F.3d 1127, 1131 (9th Cir. 2002).

“This standard recognizes that law enforcement

officers may make reasonable but mistaken judgments regarding probable cause but does not
shield officers who unreasonably conclude that probable cause exists.” Skop v. City of Atlanta,
485 F.3d 1130, 1137 (11th Cir. 2007) (emphasis in original).
“Whether a particular set of facts gives rise to probable cause or arguable probable
cause to justify an arrest for a particular crime depends, of course, on the elements of the
crime.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1333 (11th Cir. 2004). It is undisputed that
Flowers had no reason to believe that Hayes shot a gun at Green. Thus, Flowers admittedly
did not have arguable probable cause to arrest Hayes for directly committing the crime of
aggravated assault. In the arrest warrant application, Flowers cited the Georgia criminal
statutes on aggravated assault—which Flowers believed applied under Georgia’s party to a
crime statute—and gang participation.

Without the benefit of a cogent or complete

argument by Flowers’ counsel, the Court is left to guess that Flowers seeks to rely on the
referenced crimes for the basis of arguable probable cause. Under Georgia law, “[e]very
person concerned in the commission of a crime is a party thereto and may be charged with
and convicted of commission of the crime.” Ga. Code Ann. § 16-2-20(a). “A person is

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concerned in the commission of a crime only if he: (1) Directly commits the crime;
(2) Intentionally causes some other person to commit the crime under such circumstances
that the other person is not guilty of any crime either in fact or because of legal incapacity;
(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises,
encourages, hires, counsels, or procures another to commit the crime.” Id. § 16-2-20(b).
The Court finds that Flowers did not have arguable probable cause to arrest Hayes
for aggravated assault under the party to a crime statute. The evidence is undisputed that
Flowers had no reason to believe that Hayes directly committed the crime of aggravated
assault. That conclusion is buttressed by Flowers’ need to reference Georgia’s party to a
crime statute in the arrest warrant application. Further, the evidence is undisputed that
Hayes did not cause, aid, abet, hire, counsel, or procure Williams or any other person to
commit the crime of aggravated assault. In Flowers’ affidavit, he states that “it was clear to
[him] that [Plaintiff] Hayes participated in the matter under investigation.” (Doc. 12 at 6
¶ 7.) The foundation of that belief, however, was upon shaky ground. Flowers asserts that
he held the referenced belief because Hayes “mentioned certain facts which he could know
of only if he was in fact present at time of the assault upon James Green” and that
“[Antonio] Williams stated [that Hayes] stood with him during the shooting.” (Id. at 6-7 ¶¶ 7
& 9.) Those facts support the belief that Hayes was present during the shooting, not that he
is liable under Georgia’s party to a crime statute. The Court notes that the issuance of an
arrest warrant in this case does nothing to shield Flowers from § 1983 liability because, as
the facts are construed on summary judgment, the arrest warrant was issued after Hayes’
arrest. However, even if Flowers relied on the arrest warrant, the Court finds that he is not
entitled to qualified immunity because “no reasonably competent officer would have
concluded that a warrant should issue” and “officers of reasonable competence could [not]
disagree on this issue.” Malley v. Briggs, 475 U.S. 335, 341 (1986). There is no dispute that
more is required than mere presence for criminal liability. 4
The Court finds it prudent to address one potential argument as to why Flowers could have had arguable
probable cause, although not raised by either Party. “While mere presence at the scene of a crime is not
sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence,
companionship, and conduct before, during and after the offense.” Belsar v. State, 577 S.E.2d 569, 570 (Ga.
2003) (citing Burks v. State, 491 S.E.2d 368 (Ga. 1997)). The arrest warrant stated that Hayes, a “member of
4

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The crime of gang participation under Georgia law requires the commission of a
predicate offense. See Ga. Code Ann. § 16-15-4. The predicate offense here presumably was
aggravated assault. See Ga. Code Ann. § 16-15-3(1)(J). For the reasons stated above,
Flowers did not have arguable probable cause to arrest Hayes for any predicate crime
necessary for a gang participation charge under Georgia law. Because Flowers had not
identified any other crime for which he could have had arguable probable cause to arrest
Hayes, the Court concludes that he is not entitled to summary judgment. As such, as to the
false arrest claim, Flowers’ Motion for Summary Judgment (Doc. 12) is DENIED.
ii.

False imprisonment

A § 1983 false imprisonment claim lies where the common law elements of false
imprisonment are accompanied by a Fourteenth Amendment due process violation. See
Cannon v. Macon Cnty., 1 F.3d 1558, 1562-63 (11th Cir. 1993).

“A detention on the basis of

a false arrest presents a viable 1983 action.” Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.
1996) (citing Reeves v. City of Jackson, 608 F.2d 644 (5th Cir. 1979)). “Where a police officer
lacks probable cause to make an arrest, the arrestee has a claim under section 1983 for false
imprisonment based on a detention pursuant to that arrest.” Id. at 1526 (citing Groman v.
Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). Because the Court has concluded,
the Southside Bloods Criminal Street Gang,” “did walk . . . with . . . Williams (Southside Blood) while
[Williams] shot an unknown caliber handgun at James Green (Gangsta Disciple).” (Doc. 11-1 at 6.) One
could therefore argue that, under Belsar, Flowers had arguable probable cause to arrest Flowers for aggravated
assault under Georgia’s party to a crime statute because Hayes’ criminal intent could be inferred by his
presence with a comrade gang member, Williams, as Williams shot a gun at a rival gang member. However,
such an argument would be unavailing. First, the Court has been unable to locate any case that suggests gang
affiliation standing alone is a circumstance from which criminal intent may be inferred. See, e.g., Jones v. State,
252 S.E.2d 394 (Ga. 1979). Second, if such were permissible, any time two or more gang members are
together, and one were to commit a crime of violence against a rival gang member, all companion gang
members in the offending crowd would be criminally liable for their comrade’s behavior. See also Jones v. State,
740 S.E.2d 590, 593 (Ga. 2013) (“conviction as a party to a crime requires proof that the defendant shared a
common criminal intent with the principal perpetrator of the crime”). During one of the interviews, Flowers
stated that he believed that a member of Green’s gang pointed a gun at Hayes, Hayes told Hines—who was a
high-ranking member of the Southside Bloods—and Hines directed Williams to shoot his gun at Green and
the rival gang members. Whether such a situation would be sufficient for arguable probable cause is not a
question properly before this Court because Flowers’ assertion during an interview is not evidence. See also
Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316,
1322 (11th Cir. 1999)) (noting that hearsay may be considered on a motion for summary judgment only if it
“could be reduced to admissible evidence at trial or reduced to admissible form.”). Without any evidence to
support that version of events, the Court concludes, as the record stands, there are no circumstances from
which Flowers could have inferred criminal intent under Georgia law. See Fed. R. Civ. P. 56.

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for the purpose of summary judgment, that Flowers lacked arguable probable cause to arrest
Hayes for any crime under Georgia law, and Hayes was detained in jail for a period of time,
the Court finds that Flowers is not entitled to summary judgment as to Hayes’ false
imprisonment claim. As such, as to the false imprisonment claim, Flowers’ Motion for
Summary Judgment (Doc. 12) is DENIED.
iii.

Malicious prosecution

“To establish a federal malicious prosecution claim under § 1983, the plaintiff must
prove a violation of his Fourth Amendment right to be free from unreasonable seizures in
addition to the elements of the common law tort of malicious prosecution.” Wood v. Kesler,
323 F.3d 872, 881 (11th Cir. 2003) (citing Uboh v. Reno, 141 F.3d 1000, 1002-04 (11th Cir.
1998)). For the reasons stated above, Hayes has raised a jury question as to whether his
Fourth Amendment right to be free from unreasonable seizures was violated. Thus, Hayes
has created a triable issue as to the malicious prosecution claim if he has raised a factual
dispute as to each element of the common law tort of malicious prosecution. The elements
of that claim are “(1) a criminal prosecution instituted or continued by the present
defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff
accused’s favor; and (4) caused damage to the plaintiff accused.” Id. at 881-82. The
evidence is undisputed that each of those elements is met, save whether Flowers arrested
Hayes “with malice and without probable cause.” “Malice may be inferred from want of
probable cause.” See Seaboard Oil Co. v. Cunningham, 51 F.2d 321 (1931) (citing Stewart v.
Sonneborn, 98 U.S. 187 (1878)). Because the Court has found that a jury question has been
raised as to whether Flowers arrested Hayes without probable cause, the Court finds that
Flowers is not entitled to summary judgment as to Hayes’ malicious prosecution claim. As
such, as to the malicious prosecution claim, Flowers’ Motion for Summary Judgment (Doc.
12) is DENIED.
B. State law claims
Flowers argues that he is entitled to official immunity under Georgia law because
there is no evidence that he acted with actual malice. (Doc. 12-1 at 6.) In response, Hayes
argues that malice may be inferred from a lack of probable cause and, because Flowers

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arrested Hayes without probable cause, Hayes is not entitled to official immunity under
Georgia law. (Doc. 13-1 at 8.)
Official immunity shields public officials from tort liability under Georgia law to the
extent that the official acts without malice. See Marshall v. Browning, 712 S.E.2d 71, 73-74
(Ga. Ct. App. 2011). “A total lack of probable cause is a circumstance from which malice
may be inferred.” Ga. Code Ann. § 51-7-44. For the reasons stated above, the Court finds
that Flowers’ arrest of Hayes, under the facts and circumstances presented, if believed by the
trier of fact, involved a total lack of probable cause. As such, malice may be inferred and
Flowers is not entitled to official immunity under Georgia law. The Court will therefore
proceed to Hayes’ state law claims.
i.

False arrest

“An arrest under process of law, without probable cause, when made maliciously,
shall give a right of action to the party arrested.” Ga. Code Ann. § 51-7-1. “An aggrieved
plaintiff must prove three elements in a false arrest claim: an arrest under process of law,
without probable cause and made maliciously.” McKissick v. S.O.A., Inc., 684 S.E.2d 24, 29
(Ga. Ct. App. 2009) (quoting Simmons v. Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga. Ct. App.
2002)). Because the elements for false arrest under Georgia law are the same as the elements
for malicious prosecution under the common law, and the Court has found that Hayes has
raised a genuine dispute as to each element of the common law tort of malicious
prosecution, Flowers’ Motion for Summary Judgment (Doc. 12) as to Hayes’ state law claim
for false arrest is DENIED.
ii.

False imprisonment

“False imprisonment is the unlawful detention of the person of another, for any
length of time, whereby such person is deprived of his personal liberty.” Ga. Code Ann.
§ 51-7-20. Under Georgia law, an officer may arrest a person “without a warrant if the
officer has probable cause to believe that the defendant has committed a felony.” Arnsdorff v.
State, 263 S.E.2d 176, 178 (Ga. Ct. App. 1979) (citations omitted). Although aggravated
assault is a felony, see Ga. Code Ann. § 16-5-21, there is sufficient evidence for the fact finder
to find that Flowers did not have arguable probable cause to believe that Hayes had

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committed that offense, or that his actions exposed him to criminal liability for any crime
under Georgia law. For that reason, Flowers’ Motion for Summary Judgment (Doc. 12) as
to Hayes’ state law claim for false imprisonment is DENIED.
CONCLUSION
For the foregoing reasons, Flowers’ Motion for Summary Judgment (Doc. 12) is
DENIED.
SO ORDERED, this 16th day of July 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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