HICKS v. KILGORE et al

Filing 63

ORDER granting 47 Motion for Summary Judgment; denying as moot 49 Motion for Summary Judgment; denying as moot 53 Motion for Partial Summary Judgment; denying 54 Amended Motion. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 8/16/2018. (tlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KELLY HICKS, individually and as next
friend of J.E.,
Plaintiffs,

CIVIL ACTION NO.
5:16-cv-00447-TES

v.
DAN KILGORE, et al.,
Defendants.

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Presently before the Court are the parties’ Cross-Motions for Summary Judgment
[Docs. 47, 54]. 1 For the reasons that follow, Defendants’ Motion for Summary Judgment
[Doc. 47] is GRANTED, and Plaintiffs’ Amended Motion for Partial Summary Judgment
[Doc. 54] is DENIED.
FACTUAL BACKGROUND
On December 3, 2014, JE, a nine-year-old autistic student at an Upson County,
Georgia elementary school, witnessed students at a nearby middle school evacuating due

Plaintiffs filed two nearly identical motions for summary judgment: one for total summary judgment
[Doc. 49] and the other for partial summary judgment [Doc. 54]. Because the motions are substantially
similar, the Court considers only Plaintiffs’ Amended Motion for Partial Summary Judgment [Doc. 54]. The
Court will, however, consider attachments to the original motion [Doc. 49] for the purposes of this ruling.
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to a bomb threat written on the wall in one of the middle school’s bathrooms. [Doc. 47-1,
¶ 1; Doc. 54-2, ¶ 2]. 2 On December 8, 2014, JE decided to emulate this behavior and wrote
“bone thrat [sic] 1PM” on the wall in a bathroom stall at his elementary school. [Doc. 471, ¶ 2]. JE told a student hall monitor that he discovered the bomb threat, and they both
went to tell a teacher. [Id. at ¶ 3]. The teacher told the school’s administrative personnel,
who then called 9-1-1. [Id. at ¶ 4].
Defendants Casey Clark and David Walker, investigators for the Upson County
Sheriff’s Office, responded to the call and went to the elementary school to investigate
the bomb threat. [Id. at ¶ 5]. Upon arriving at the school, Defendants Clark and Walker
requested to speak with JE because he discovered the bomb threat. [Id. at ¶ 6; Doc. 50-3,
Clark Dep., p. 10:15-21; Doc. 50-4, Walker Dep., p. 10:18-23]. School officials were present
during the subsequent questioning, but Ms. Hicks, JE’s mother, was not. [Doc. 47-1, ¶¶
7, 8]. Defendants Clark and Walker did not read JE his Miranda rights during the
questioning. [Id. at ¶ 8]. School officials did not inform Defendants Clark and Walker that
JE is autistic. [Id. at ¶ 9]. During the questioning, JE admitted that he wrote the bomb
threat on the bathroom wall. [Id. at ¶ 10].

Plaintiffs’ Response to Defendants’ Statement of Material Facts [Doc. 51-1] is misnumbered and omits
responses to two of Defendants’ facts; thus, the Court experienced difficulty determining the specific facts
to which Plaintiffs object. To the extent Plaintiff does not clearly object to Defendant’s facts, they are
deemed admitted. See LR 56, MDGa.
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2

After JE’s confession, Defendants Clark and Walker stopped questioning JE and
decided to transport him to the Upson County Sheriff’s Office to question him further
and to complete routine paperwork. [Id. at ¶ 12; Doc. 50-4, Walker Dep., p. 13:16-25]. At
around 1:45 p.m., approximately one hour and 45 minutes after Defendants Clark and
Walker arrived at the school, the school principal called JE’s mother Ms. Hicks, informed
her of the incident, and told her she could pick JE up at the Sheriff’s Office. [Doc. 47-1, ¶
11; Doc. 51-1, ¶ 11; Doc. 49-2; Doc. 50-1, Hicks Dep., p. 20:3-16]. Defendants Clark and
Walker transported JE to the Sheriff’s Office in the back of Defendant Walker’s patrol car,
but they never handcuffed him. [Doc. 50-3, Clark Dep., pp. 14:21—16:11].
When they arrived at the Sheriff’s Office, Defendant Clark read JE his Miranda
rights, which JE waived. [Doc. 47-1, ¶ 17]. Defendant Clark testified that he asked JE
whether he understood the Miranda waiver, and JE said he did. [Doc. 50-3, Clark Dep., p.
36:9-23]. Defendant Clark then questioned JE further, and JE provided a statement
regarding the bomb threat. [Doc. 47-1, ¶ 19]. Defendant Clark testified that it did not
occur to him that JE had autism until Ms. Hicks arrived to pick JE up and mentioned it.
[Doc. 50-3, Clark Dep., pp. 35:19—36:5].
Defendant Clark filled out an incident report, which noted in a box entitled
“CHARGES” that JE committed terroristic threats and acts in violation of Ga. Code Ann.

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§ 16-11-37. 3 [Doc. 49-2]. The same was noted on a juvenile complaint form dated
December 12, 2018. [Doc. 49-5]. The Upson County Sheriff’s Office referred the matter to
the juvenile court as one for a “child in need of services,” but the Sheriff did not file formal
charges against JE. [Doc. 62, Kilgore Dep., p. 15:10-21]. The juvenile court judge later
ordered JE to write three apology letters. [Doc. 47-1, ¶ 24].
Plaintiffs now bring the instant lawsuit pursuant to 42 U.S.C. § 1983, alleging that
Sheriff Dan Kilgore and Defendants Clark and Walker violated JE’s Fourth and Fifth
Amendment rights, and both Plaintiffs’ Fourteenth Amendment rights. Specifically,
Plaintiffs allege in Count I of their Amended Complaint that Defendants Clark and
Walker violated Ga. Code Ann. § 15-11-502(a) (in accordance with policies promulgated
by Defendant Kilgore) and thus violated JE’s procedural due process rights and Ms.
Hick’s substantive due process rights. [Doc. 13, ¶¶ 21, 22]. Ga. Code Ann. § 15-11-502
states:
(a) A person taking an alleged delinquent child into custody, with all
reasonable speed and without first taking such child elsewhere, shall:
(1) Immediately release such child, without bond, to his or her
parent, guardian, or legal custodian upon such person's promise to
bring such child before the court when requested by the court;
[. . . or]

Ga. Code Ann. § 16-11-37 states in relevant part that “[a] person commits the offense of a terroristic threat
when he or she threatens to: (A) commit any crime of violence; (B) release any hazardous substance; or (C)
burn or damage property. [ ] Such terroristic threat shall be made: . . . With the purpose of causing the
evacuation of a building, place of assembly, or facility of public transportation.”
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4

(3) Bring such child immediately before the juvenile court or
promptly contact a juvenile court intake officer. The court or juvenile
court intake officer shall determine if such child should be released
or detained. All determinations and court orders regarding
detention shall comply with the requirements of this article and shall
be based on an individual detention assessment of such child and his
or her circumstances.
(b) Notwithstanding subsection (a) of this Code section, a law enforcement
officer may detain an alleged delinquent child for a reasonable period of
time sufficient to conduct interrogations and perform routine law
enforcement procedures including but not limited to fingerprinting,
photographing, and the preparation of any necessary records.
In Count II, Plaintiffs allege that Defendants Clark and Walker violated Ga. Code
Ann. § 16-3-1 and falsely arrested JE without probable cause in accordance with policies
set by Defendant Kilgore. [Doc. 13, ¶¶ 26-34]. Ga. Code Ann. § 16-3-1 states that “[a]
person shall not be considered or found guilty of a crime unless he has attained the age
of 13 years at the time of the act, omission, or negligence constituting the crime.”
In Count III, Plaintiffs allege that Defendants Clark and Walker violated JE’s predeprivation due process and substantive due process rights by failing to have his
parent(s) present during questioning and failing to Mirandize him. [Id. at ¶¶ 35-41].
Plaintiffs also contend that such conduct “shocks the conscience,” and that Defendants
Clark and Walker did this in accordance with Defendant Kilgore’s policies. [Id. at ¶¶ 37,
38].
Finally, Plaintiffs allege in Count IV that Defendants violated Ga. Code Ann. § 1511-502 and Art. I, Sec. I, Para. XVI of the Georgia Constitution, which states that “[n]o
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person shall be compelled to give testimony tending in any manner to be selfincrimination.” [Doc. 13, ¶¶ 42-45].
DISCUSSION
A.

Standard of Review
A party is entitled to summary judgment “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). As to issues for which the movant
would bear the burden of proof at trial, the “movant must affirmatively show the absence
of a genuine issue of material fact and support its motion with credible evidence
demonstrating that no reasonable jury could find for the non-moving party on all of the
essential elements of its case.” Landolfi v. City of Melbourne, 515 F. App’x 832, 834 (11th
Cir. 2013) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to
issues for which the non-movant would bear the burden of proof at trial, the movant may
(1) simply point out an absence of evidence to support the non-moving party's case or (2)
provide “affirmative evidence demonstrating that the [non-movant] will be unable to
prove its case at trial.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa
Ctys., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).

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Once the movant satisfies its burden, the burden shifts to the non-movant, who
must “go beyond the pleadings and present affirmative evidence to show that a genuine
issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing
Fitzpatrick, 2 F.3d at 1115–17). “A factual dispute is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d
at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)).
The standard of review for cross-motions for summary judgment does not differ
from the standard applied when only one party files a motion. See Am. Banks Ins. Grp. v.
United States, 408 F.3d 1328, 1331 (11th Cir. 2005). “Cross-motions for summary judgment
will not, in themselves, warrant the court in granting summary judgment unless one of
the parties is entitled to judgment as a matter of law on facts that are not genuinely
disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (internal citations
omitted). The Court will consider each motion on its own merits, resolving all reasonable
inferences against the party whose motion is under consideration. See Am. Bankers Ins.
Grp., 408 F.3d at 1331. However, “[a] court need not permit a case to go to a jury . . . when
the inferences that are drawn from the evidence, and upon which the non-movant relies,
are implausible.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
B.

Qualified Immunity
Defendants assert qualified immunity on all of Plaintiffs’ claims. An officer is

entitled to qualified immunity when he acts within his discretionary authority and the
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conduct does not “violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Manners v. Cannella, 891 F.3d 959, 967-68 (11th
Cir. 2018) (quoting Hill v. Cundiff, 797 F.3d 948, 978 (11th Cir. 2015)).
The burden first lies with the defendant to show that he acted “within his
discretionary authority when the alleged wrongful acts occurred.” Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002). Once this is shown, the burden shifts to the plaintiff to prove
that qualified immunity is inappropriate. Id. The plaintiff satisfies this burden if the facts,
taken in the light most favorable to them, show that the officer’s conduct violated a clearly
established constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). To be clearly
established, the constitutional violation must be “apparent” when viewed “in light of preexisting law” from the United States Supreme Court, Eleventh Circuit Court of Appeals,
or Georgia Supreme Court, such that the offending officer has “fair warning that his
conduct deprived his victim of a constitutional right.” Hope v. Pelzer, 536 U.S. 730, 739-40
(2002).
C.

Plaintiffs’ Due Process Claims
Plaintiffs’ first cause of action is asserted against all Defendants for their alleged

violation of both Plaintiffs’ due process rights. Specifically, Plaintiffs allege that
Defendants violated Ga. Code Ann. § 15-11-502, which states in pertinent part:
(a) A person taking an alleged delinquent child into custody, with all
reasonable speed and without first taking such child elsewhere, shall:

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(1) Immediately release such child, without bond, to his or her
parent, guardian, or legal custodian upon such person's promise to
bring such child before the court when requested by the court;
[. . . or]
(3) Bring such child immediately before the juvenile court or
promptly contact a juvenile court intake officer. The court or juvenile
court intake officer shall determine if such child should be released
or detained. All determinations and court orders regarding
detention shall comply with the requirements of this article and shall
be based on an individual detention assessment of such child and his
or her circumstances.
(b) Notwithstanding subsection (a) of this Code section, a law enforcement
officer may detain an alleged delinquent child for a reasonable period of
time sufficient to conduct interrogations and perform routine law
enforcement procedures including but not limited to fingerprinting,
photographing, and the preparation of any necessary records.
Plaintiffs claim that Defendants Clark and Walker violated subsection (a) of this
statute by taking JE to the Upson County Sheriff’s Office and, in doing so, infringed on
JE’s procedural due process rights and Ms. Hicks’ parental substantive due process
rights. [Doc. 13, ¶ 21].
1.

Defendants did not violate Ga. Code Ann. § 15-11-502.

Plaintiffs claim that Defendants Clark and Walker violated Ga. Code Ann. § 15-11502(a) by taking JE to the Upson County Sheriff’s Office rather than immediately
releasing him to Ms. Hicks or immediately taking him to juvenile court. Subsection (b),
however, provides an exception to subsection (a) and allows officers to “detain an alleged
delinquent child for a reasonable period of time sufficient to conduct interrogations and

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perform routine law enforcement procedures including . . . the preparation of any
necessary records.” Ga. Code Ann. § 15-11-502(b) (emphasis added). Defendants Clark
and Walker’s conduct in transporting JE to the Upson County Sheriff’s Office for further
questioning and to complete an investigation report falls squarely within the exception
in subsection (b). Thus, the Court does not find that Defendants acted illegally by
transporting JE to the Sheriff’s Office rather than releasing him to Ms. Hicks or the
juvenile court.
2.

Defendants did not violate Plaintiffs’ due process rights.

Plaintiffs also allege that Defendants Clark and Walker violated JE’s procedural
due process rights and Ms. Hicks’ substantive due process “parental rights in her child”
by transporting JE to the Sheriff’s Office in violation of Ga. Code Ann. § 15-11-502. [Doc.
13, ¶ 21]. However, the violation of a state statute cannot, in itself, give rise to a Section
1983 claim. See Trujillo v. Williams, 465 F.3d 1210, 1214 n.2 (10th Cir. 2006) (“To the extent
that [the plaintiff] seeks relief for alleged violations of state statutes . . ., he has stated no
cognizable claim under § 1983, which establishes a cause of action only for deprivation
of rights secured by the Constitution or federal law.”); Collins v. City of Harker Heights, 503
U.S. 115, 119 (1992) (Section 1983 “does not provide a remedy for abuses that do not
violate federal law.”). Moreover, “[t]here is no federal right to not be arrested in violation
of state law.” Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002).

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Plaintiffs offers no legal basis for their allegation that “[t]he failure of Defendants
Clark and Walker to provide the procedural safeguards of O.C.G.A. § 15-11-502(a)
violated both [Ms. Hicks and JE’s] rights to procedural due process and . . . substantive
due process” under federal law. [Doc. 13, ¶ 21]. Thus, because this cause of action fails as
a matter of law, Defendants are entitled to summary judgment.
D.

Plaintiffs’ False Arrest Claims
In her second cause of action, Plaintiffs claim that Defendants Clark and Walker

arrested JE in violation of Ga. Code Ann. § 16-3-1, which states: “A person shall not be
considered or found guilty of a crime unless he has attained the age of 13 years at the
time of the act, omission, or negligence constituting the crime.” Plaintiffs further allege
that Defendants Clark and Walker acted in accordance with a policy implemented by
Defendant Kilgore in making the arrest in violation of Ga. Code Ann. § 16-3-1. Plaintiffs
also claim that Defendants Clark and Walker lacked arguable probable cause to arrest JE.
1.

Ga. Code Ann. § 16-3-1

Plaintiffs claim that Defendants violated Ga. Code Ann. § 16-3-1 when they
arrested JE. However, as previously discussed, the violation of a state statute cannot, by
itself, establish the violation of a federal constitutional right. Knight, supra. Plaintiffs
present no case law, federal statute, or constitutional provision—and diligent research by
the Court reveals none—stating that a police officer violates federal statutory or
constitutional law by arresting a child under the age of 13 for a crime. Moreover, the
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Georgia Supreme Court explicitly held that Ga. Code Ann. § 16-3-1 “provides neither a
constitutional nor an unwaivable proscription on the prosecution of persons under 13
years old.” Adams v. State, 707 S.E.2d 359, 362 (Ga. 2011).
Furthermore, Section 16-3-1 cannot mean that a child under the age of 13 can never
be arrested, especially since “[t]here is no authority that [the statute] provides immunity
from criminal prosecution.” Adams v. State, 707 S.E.2d 359, 362 (Ga. 2011). Moreover,
Plaintiffs’ interpretation of the statute cannot be reasonably reconciled with Ga. Code
Ann. § 15-11-501, which makes it lawful for a police officer to take “an alleged delinquent
child” into custody “pursuant to the laws of arrest.” Plaintiffs’ reading of Section 16-3-1
would significantly limit the applicability of Section 15-11-501 and render it completely
meaningless for children under the age of 13. No Georgia court has ever interpreted these
statutes to work in this fashion. Accordingly, Plaintiffs cannot sustain a claim under
Section 1983 for any of the Defendants’ alleged violations of Ga. Code Ann. § 16-3-1.
2.

Arguable Probable Cause

Plaintiffs also claim that Defendants Clark and Walker arrested JE without
probable cause. The Court assumes, without deciding, that the officers did actually arrest
JE (in the strictly legal sense) and finds that they had at least arguable probable cause to
do so.
Generally, an arrest must be supported by probable cause to be reasonable under
the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion).
12

However, when a police officer asserts qualified immunity against a claim for false arrest,
the question is not whether he had actual probable cause to arrest the plaintiff, but
whether he had arguable probable cause to do so. Grider v. City of Auburn, 618 F.3d 1240,
1257 (11th Cir. 2010). Arguable probable cause exists in the context of an arrest when
“reasonable officers in the same circumstances and possessing the same knowledge as
the Defendants could have believed that probable cause existed to arrest Plaintiff.” Id.
a.

JE’s Confession

Defendants argue that JE’s confession during his questioning at the school gave
them actual probable cause to arrest JE. Plaintiffs, on the other hand, appear to contend 4
that because Defendants Clark and Walker allegedly coerced JE’s confession, they could
not rely on it for the requisite probable cause to arrest. However, the Supreme Court has
clearly established that the Fifth Amendment right against self-incrimination is only
violated if incriminating statements are used against the suspect in a criminal trial. See
generally, Chavez v. Martinez, 538 U.S. 760 (2003) (plurality opinion). Moreover, the
Miranda exclusionary rule—which is the premier method by which coerced confessions
are dealt with under the Fifth Amendment—is merely prophylactic in nature and is not
meant to give rise to a civil cause of action. See Section E, infra. Put simply, coercive

Plaintiffs’ arguments on this point are not the model of clarity. The Court has done its best to decipher
the legal and factual bases of their claims.

4

13

interrogations are remedied by the court’s invocation of the Miranda exclusionary rule
during a criminal trial and not by civil lawsuits.
JE, like the plaintiff in Chavez, was not charged with a criminal offense, nor was he
ever prosecuted in a criminal trial. Therefore, a civil claim for his allegedly coercive
interrogation will not lie under the Fifth Amendment, and Plaintiffs cannot attempt to
transform such a claim into—or bootstrap it onto—a Fourth Amendment false arrest
claim. Thus, their argument that JE’s allegedly coerced confession cannot form the basis
for probable cause to arrest is without merit.
In the context of this Section 1983 claim, JE’s confession provided sufficient
probable cause for Defendants to arrest him. Once JE confessed to writing the bomb threat
on the school’s bathroom wall, Officers Clark and Walker had actual, and not merely
arguable, probable cause to arrest JE based on the confession. Thus, JE’s claim for false
arrest under Section 1983 fails as a matter of law.
b.

Ga. Code Ann. § 16-3-1 as an affirmative defense

Plaintiffs also contend that Ga. Code Ann. § 16-3-1 presents an affirmative defense
to JE’s arrest and that Defendants Clark and Walker’s awareness of Ga. Code Ann. § 163-1 negated any probable cause to arrest JE.
As previously discussed, Ga. Code Ann. § 16-3-1 states, “A person shall not be
considered or found guilty of a crime unless he has attained the age of 13 years at the
time of the act, omission, or negligence constituting the crime.” The Georgia Supreme
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Court explained that this statute is an affirmative defense designed to safeguard “the
social desirability of protecting those not more than 12 years of age from the
consequences of criminal guilt,” but it does not create an immunity from criminal
prosecution. Adams, 707 S.E.2d at 362. Moreover, as Plaintiffs state in their brief, the
statute does not prevent someone under the age of 13 from being “dealt with as the law
provides for juveniles who violate the law.” [Doc. 54-1, p. 8]; Adams, 707 S.E.2d at 366
(Hunstein, C.J., concurring) (quoting Committee Notes to § 26–701 of the 1968 Georgia
Criminal Code).
Plaintiffs rely on Williams v. Sirmons, an unreported case, which held that a police
officer lacks probable cause to arrest a suspect when he “actually has knowledge of facts
and circumstances conclusively establishing an affirmative defense.” 307 F. App’x 354,
358 (11th Cir. 2009). In that case, the court held that officers lacked arguable probable
cause to arrest a pregnant driver for fleeing the scene of a traffic stop where they knew
she was in premature labor and that her flight was precipitated by duress or necessity.
Id. at 389.
However, as Defendants point out, the Eleventh Circuit has carefully avoided
creating binding precedent as to whether the existence of an affirmative defense and an
officer’s knowledge of that defense negate probable cause. See, e.g., Sada v. City of
Altamonte Springs, 434 F. App’x 845, 851 (11th Cir. 2011) (“[G]iven the absence of binding
precedent holding that affirmative defenses must be considered in a probable cause
15

determination, we cannot say that the law regarding affirmative defenses [in Williams v.
Sirmons] was so clearly established as to have provided fair warning to the Defendants
that their actions were unconstitutional.”).
Thus, Plaintiffs cannot show that Defendants violated a clearly-established
constitutional right when they arrested JE without taking into consideration the
affirmative defense in Ga. Code Ann. § 16-3-1, and Defendants are entitled to qualified
immunity.
c.

JE’s conduct constituted a crime.

Finally, Plaintiffs argue that Defendants Clark and Walker lacked probable cause
to arrest JE because he did not commit a crime. Plaintiffs rely on KMS v. State, 200 S.E.2d
916, 918 (Ga. Ct. App. 1973), which states, “The juvenile court is a civil court, not a
criminal court, and an adjudication of delinquency is not a conviction of a crime.” They
also rely on the principle that probable cause is based on the elements of the crime for
which a suspect is arrested. See Brown v. City of Huntsville, 608 F.3d 724, 735 (11th Cir.
2010). From these two legal principles, Plaintiffs conclude that because a “crime” and a
“delinquent act” are not the same and because JE would only have been prosecuted for a
“delinquent act,” there was no “crime” that would have established the guidelines for a
probable cause determination. Plaintiffs’ reasoning is flawed.
The KMS court went on to explain that while “[t]he juvenile court cannot find
anyone guilty of a crime,” it “may well find that any act which is designated a crime under
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Georgia law is a delinquent act when committed by a juvenile.” KMS, 200 S.E.2d at 918
(emphasis added). Thus, although JE could have been found guilty of a delinquent act
rather than a crime, the elements to establish probable cause would have been the same
in the eyes of the juvenile court as they would have been in the eyes of a criminal court
for the same offense. That is, the only difference between a delinquent act and a crime is
the age of the accused, but the elements—and thus the parameters of probable cause—
are the same.
In this case, Defendants Clark and Walker had probable cause to believe that JE
made terroristic threats, an offense that would be a crime if committed by a person over
age 13 and a delinquent act if committed by a person under age 13, and for which the
elements are the same regardless of the suspect’s age. The facts they knew at the time of
JE’s arrest clearly satisfy the elements of the crime of terroristic threats. See n.3.
Accordingly, they had probable cause to arrest JE and are entitled to summary judgment
on Count II.
E.

Count III: Due Process and Miranda Violations
In their third cause of action, Plaintiffs allege that Defendants violated JE’s pre-

deprivation due process rights by questioning him without his parents present and
without providing Miranda warnings. Defendants are entitled to qualified immunity on
this claim if Plaintiffs cannot establish that Defendants violated a clearly-established
constitutional right. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
17

As to Plaintiffs’ contention that Defendants violated JE’s right to have a parent
present while Defendants questioned him, courts, including the Eleventh Circuit, have
routinely held that there is no clearly-established right for parents to be present during
police questioning of a minor or for them to even be notified of such questioning. See, e.g.,
Hall v. Thomas, 611 F.3d 1259, 1289 (11th Cir. 2010) (“Regardless of what Alabama law
requires, there is no clearly established federal constitutional requirement: (1) that police
officer advise juveniles, suspected of state crimes, of a right to have a parent present
during questioning, or (2) that interrogation cease upon a juvenile’s request for the
presence of a parent or guardian.”) (emphasis in original); Stone v. Farley, 86 F.3d 712, 717
(7th Cir. 1996) (“[N]either federal statutory nor constitutional law requires that a
juvenile’s parents be notified prior to obtaining a confession.”); United States v. Guzman,
879 F. Supp. 2d 312, 321 (E.D.N.Y. 2012) (“[T]here is no constitutional right for a juvenile
to have a parent or guardian present during questioning.”); Foley v. Carlsbad Mun. Schs.,
2011 WL 13286401, at *8 (D.N.M. Jan. 24, 2011) (“Plaintiffs do not point to any clearly
established constitutional right that juveniles must have their parents present during
questioning by police or school officials. . . . [T]he Tenth Circuit has never recognized
such a right, and the Fourth Circuit has specifically declined to recognize any such
constitutional requirement.”). Thus, Defendants did not violate JE’s due process rights
by failing to have his parent(s) present during questioning.

18

Plaintiffs also claim that Defendants violated JE’s due process rights by failing to
properly Mirandize him. As an initial matter, noncompliance with Miranda does not
create a cognizable claim under the Fifth Amendment or Section 1983. Wright v. Dodd, 438
F. App’x 805, 807 (11th Cir. 2011) (citing Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir.
1999)); see also Chavez v. Martinez, 538 U.S. 760, 772 (1994) (“[T]he Miranda exclusionary
rule [is] a prophylactic measure to prevent violations of the right protected by the text of
the Self–Incrimination Clause—the admission into evidence in a criminal case of
confessions obtained through coercive custodial questioning.”) (emphasis added). The
Supreme Court has said, however, that an officer’s improper methods for obtaining a
confession can run afoul of the Fourteenth Amendment Due Process Clause in certain
situations. See Chavez, 538 U.S. at 773. Despite Plaintiffs’ contentions, this is not one of
those situations.
In Chavez, the Supreme Court articulated a Fourteenth Amendment due process
violation where officers use methods “so brutal and so offensive to human dignity that
they shock the conscience.” Id. at 774 (quoting Rochin v. California, 342 U.S. 165, 172
(1952)). But such a violation is limited to “the most egregious conduct,” and “the official
conduct most likely to rise to the conscience-shocking level is the conduct intended to
injure in some way unjustifiable by any government interest.” Id. at 774, 775. (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998)) (emphasis added). Courts in
this circuit have found that not even excessive force will be conscience-shocking in every
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case; it must be used “maliciously and sadistically to cause harm.” Fennell v. Gilstrap, 559
F.3d 1212, 1217 (11th Cir. 2009). Other instances of conscious-shocking behavior include
police officers pumping a suspect’s stomach against his will, Rochin, 342 U.S. at 172, and
a high school teacher permanently blinding a student with a heavy object, Neal ex rel. Neal
v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000).
This case simply does not rise to the level laid out in the cases cited above. There
is no evidence that Defendants Clark and Walker acted maliciously or even with the
intent to harm JE, or that JE was even harmed at all. His detention was brief, and all of
Defendants’ actions served the state government’s interest in keeping schools and
students safe. Therefore, JE’s substantive due process claim fails, and Defendants are
entitled to summary judgment on Count III.
F.

State-Law Claims
Finally, Plaintiffs bring state-law claims against Defendants for alleged violations

of Article I, Section I, Paragraph XVI of the Georgia Constitution and for false
imprisonment due to their alleged violation of Ga. Code Ann. § 15-11-502. 5
Defendants argue that they are entitled to official immunity under Georgia law.
Public officials enjoy official immunity under Georgia law when they are sued “in their

In their reply to Defendants’ Motion for Summary Judgment, Plaintiffs confusingly assert that the crux
of this cause of action is “whether [D]efendants violated [O.C.G.A. §] 15-11-502(a)” but go on to say that
this cause of action is “not for violation of [Ga. Code Ann. § 15-11-502] but for false imprisonment.” [Doc.
52, p. 16].
5

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individual capacities for discretionary actions within the scope of their official authority
performed without actual malice or actual intent to cause injury.” Rodriguez v. Kraus, 619
S.E.2d 800, 802 (Ga. Ct. App. 2005). Actual malice is shown by more than ill will; it “must
also be combined with the intent to do something wrongful or illegal.” Adams v.
Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999). Moreover, to prove actual intent to cause injury,
a plaintiff must show that the defendant intended to harm the plaintiff, rather than
simply showing that the defendant intended to do the act that resulted in the harm. Hart
v. Sirmans, 784 S.E.2d 67, 69 (Ga. Ct. App. 2016).
Discretionary actions include police officers’ investigative decisions, Hutchinson v.
Whaley, 777 S.E.2d 251, 254 (Ga. Ct. App. 2015), as well as their decisions to arrest
suspects. Rodriguez, 619 S.E.2d at 802. In this case, Defendants were clearly acting within
their discretionary authority when they questioned and detained JE, and Plaintiff offers
no proof that they did so maliciously or with the actual intent to harm her or JE. Plaintiffs’
bare assertion that “there was no legitimate purpose for [Defendants’] actions” is
insufficient to defeat official immunity, especially in light of the Court’s decision that JE’s
questioning and transportation to the Upson County Sheriff’s Office were justified and
lawful. Accordingly, Defendants are also entitled to summary judgment on Plaintiffs’
state-law claims.

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CONCLUSION
For the reasons stated herein, the Court GRANTS Defendants’ Motion for
Summary Judgment [Doc. 47] and DENIES Plaintiffs’ Amended Motion for Partial
Summary Judgment [Doc. 54]. Plaintiffs’ Motion for Summary Judgment [Doc. 49] and
Motion for Partial Summary Judgment [Doc. 53] are DENIED AS MOOT. Accordingly,
this action is DISMISSED.
SO ORDERED, this 16th day of August, 2018.
S/Tilman E. Self, III
TILMAN E. SELF, III, Judge
UNITED STATES DISTRICT COURT

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