Watson v. Bradsher et al

Filing 11

ORDER re 1 Bankruptcy Notice of Appeal. The Order and Judgment of the Bankruptcy Court (Docs. 1-2, 1-3) are AFFIRMED IN PART AND REVERSED IN PART. The finding of the Order and Judgment that any debt arising from Plaintiffs' false imprisonment claims is nondischargeable is AFFIRMED, as is its finding that any debt from Plaintiffs slander claim resulted from a "malicious injury." However, given the Bankruptcy Court's finding that Defendant "genuinely believed Plaintiffs had taken his wallet," we must REVERSE the Order and Judgment with respect to the Bankruptcy Court's finding that the slander injury was "willful." It may yet be determined that the slander injury was indeed willful under § 5 23(a)(6). But further factual clarification is necessary, as the Court discusses above. See supra Part IIl(B)(3). The case is REMANDED to the Bankruptcy Court for further proceedings consistent with this opinion. Signed by Judge Sarah E. Geraghty on 08/12/2022. (rsg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STANLEY KAPPELL WATSON,
Appellant,
v.

CIVIL ACTION NO.
1:21-CV-1778-SEG

SHENEEKA BRADSHER and
ZARINAH ALI,
Appellees.
OPINION AND ORDER
Appellant Stanley Kappell Watson appeals the Bankruptcy Court’s
Order and Judgment (Docs. 1-2, 1-3) entered in part in his favor and in part in
favor of Appellees Sheneeka Bradsher and Zarinah Ali. (Doc. 1). For the
following reasons, the Court will affirm the judgment in part and reverse it in
part, and it will remand the case for further proceedings consistent with this
order.
I.

Background
This appeal arises out of an adversary proceeding brought in the

Bankruptcy Court of the Northern District of Georgia by Bradsher and Ali
(“Plaintiffs”), who hold a state court judgment against Watson (“Defendant”).
After Defendant filed a Chapter 7 bankruptcy petition on November 28, 2018,
Plaintiffs commenced an adversary proceeding seeking a determination that

the debt Defendant owes them is nondischargeable pursuant to 11 U.S.C. §
523(a)(6), which exempts from bankruptcy discharge any debt “for willful and
malicious injury by the debtor to another entity or to the property of another
entity.” Because § 523(a)(6)’s “willful and malicious injury” standard differs
from the state-law standards required for findings of slander, false
imprisonment, and battery—and the state court verdict was, in any event,
unspecific about which claims led to which damages—the Bankruptcy Court
held a trial in which it heard testimony from all parties and reviewed a variety
of evidence introduced by Plaintiffs. This evidence included the record and
transcripts of testimony from the state court trial.
The Court need not restate the Bankruptcy Court’s full account of the
events that led to Plaintiffs’ injuries, which can be found in its final Order in
the case.1 (Doc. 1-2 at 2-9). A relatively brief summary follows here.

On appeal, a district court reviews a bankruptcy court’s findings of fact
under a “clearly erroneous” standard. See Fed. R. Bankr. P. 7052 (making
Fed. R. Civ. P. 52 applicable to adversary proceedings); Fed. R. Civ. P.
52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not
be set aside unless clearly erroneous, and the reviewing court must give due
regard to the trial court’s opportunity to judge the witnesses’ credibility.”);
Kane v. Stewart Tilghman Fox & Bianchi, P.A. (In re Kane), 755 F.3d 1285,
1293 (11th Cir. 2014). The heavy burden for showing clear error falls on
appellants, and it is “an especially heavy burden . . . in a case in which the
evidence is largely testimonial,” as a significant portion of the evidence is
here. Thelma C. Raley, Inc. v. Kleppe, 867 F.2d 1326, 1328 (11th Cir. 1989).
“When we examine the facts adduced at trial, generally we will not disturb a

1

2

The relevant encounter between the parties occurred at the Tanqueray
Lounge in Decatur, Georgia.

At the time, Defendant Watson was a

commissioner for DeKalb County, Georgia, and was wearing a shirt that
identified him as such. He had gone to Tanqueray alone after having dinner
with a friend. Plaintiff Bradsher was visiting Plaintiff Ali from out of town,
and they went to the Tanqueray Lounge together.

At some point in the

evening, Defendant bought a drink or drinks for Bradsher, the two talked, and
Defendant propositioned her for sex, a suggestion that Bradsher testified
offended her and led her to reject Defendant in insulting terms.2
Not long after this, Defendant—needing to pay for the drinks he had
purchased for Bradsher and himself—discovered that he did not have his
wallet.

After the bartenders told him they had not seen it, Defendant

bankruptcy court’s credibility determinations.” In re Kane, 755 F.3d at 1288
(citing Englander v. Mills (In re Englander), 95 F.3d 1028, 1030 (11th Cir.
1996)). Defendant’s arguments on appeal do not challenge any of these
findings of fact, and the Court has found no indications of clear error. “Thus,
in summarizing the essential facts developed over the course of a . . . hearing
in the bankruptcy court, we accept as we must the bankruptcy court’s factual
findings in light of its credibility judgments.” Id.
Defendant denies soliciting Bradsher for sex, but the Bankruptcy Court
evidently found Bradsher’s testimony to be more credible on this point and
accepted her version of these events. (See Doc. 1-2 at 8.) At the state court
trial, two police officers testified that Bradsher and Ali separately told them
about the alleged solicitation during the incident. (See Doc. 4-9 at 75, 10304.)

2

3

concluded that Bradsher must have stolen it. In fact he had left the wallet in
his car, where he would discover it the next day.
What followed was an incident in which Defendant repeatedly accused
Bradsher and then Ali of having stolen his wallet, repeatedly called Plaintiffs
“bitches,” demanded that the police arrest Plaintiffs, and taunted Plaintiffs
that they were going to jail. The Bankruptcy Court found that Defendant
“genuinely believed Plaintiffs had taken his wallet.”

(Doc. 1-2 at 11.)

Bradsher, however, knew the accusations to be false, and she grew irate. The
situation escalated as she and Defendant had a heated exchange inside the
bar. One of the bar’s security staff was an off-duty police sergeant, and he took
the lead in handling the incident and attempted to control the situation. Early
in the episode, Plaintiffs allowed the off-duty officer to look in both of their
purses for the wallet. It was not there. Despite this, Defendant continued to
accuse both women of having the wallet, to demand that they be arrested, and
to taunt Plaintiffs. During this phase of the encounter, Defendant poked Ali’s
forehead while pointing his finger at her and telling her she was going to jail.3

Defendant denies poking Ali. The Bankruptcy Court found that he did, but
that he most likely meant merely to point at her and did not intend to make
physical contact. (Doc. 1-2 at 4, 12.)
3

4

The parties were moved outside into the Tanqueray parking lot. The offduty officer on the scene called two other officers to assist him. Throughout
the episode—but particularly at this stage, after things were moved to the
parking lot—Defendant attempted to wield his authority as a county
commissioner to get those around him to give into his demands. For example,
he threatened those at Tanqueray that he would tell “Dale, Annette, and Chief
O’Brien”4 what had happened, that the bar would lose its food license, and that
the people working there would lose their jobs. He apparently leveraged his
position to ensure that he would not be arrested, despite his “belligerent”
behavior and the fact that he briefly drove his car away in the middle of the
episode, even after an officer warned him that he should not drive because he
was intoxicated.5 When a police lieutenant arrived on the scene following
Defendant’s brief drive, the lieutenant called a police major and allowed
Defendant to talk to him on the phone. The Bankruptcy Court found that

The record suggests that “Chief O’Brien” referred to the then-chief of police
of DeKalb County, “Dale” referred to then-Assistant Chief of Police Dale
Holmes, and “Annette” referred to another member of the police department.
(Doc. 4-3 at 138.)
4

All three police officers on the scene and the Tanqueray security guard
“described Defendant as appearing intoxicated and being belligerent or irate
while insisting that Plaintiffs had his wallet and that he wanted them
to be arrested.” (Doc. 1-2 at 5.)

5

5

“[a]lthough the police wanted to arrest Defendant for his disorderly behavior,
they were directed by their superiors to allow Defendant to be taken
home, apparently in response to phone conversations between Defendant and
those superiors.” (Doc. 1-2 at 8.)
Bradsher, for her part, was handcuffed not long after the parties were
removed from the bar, informed that she was under arrest for disorderly
conduct, and placed into the back of a police car. The officer who ordered
Bradsher to be arrested testified that he did so not as a result of Defendant’s
accusations, but as a result of her disorderly conduct. He further testified that
he would not have investigated either plaintiff if Defendant had not accused
them, and that Bradsher was not disorderly prior to Defendant’s accusations.
While Bradsher was in the police car, Defendant walked “back and forth along
the police car saying that she had stolen his wallet and was going to jail.” (Id.
at 7-8.) Ali remained calm throughout the incident, and although she was not
permitted to leave the scene, she was not handcuffed or otherwise physically
detained by the police. The officers on the scene ultimately decided not to
arrest Bradsher, feeling it was unfair to arrest her for disorderly conduct while
allowing Defendant to be driven home, as the police lieutenant had instructed
was to be done with Watson.

6

A jury in the State Court of Dekalb County later found Defendant liable
to Plaintiffs for $110,000 in damages and $40,500 in fees and costs pursuant
to a complaint alleging slander, false imprisonment, and battery. (Id. at 2.)
The jury allocated $75,000 in compensatory and $5,000 in punitive damages to
Bradsher and $25,000 in compensatory and $5,000 in punitive damages to Ali.
(Id.) The jury verdict did not specify which claim or claims were the basis for
the damages. (Id. at 9.)
The Bankruptcy Court found nearly this entire amount to be
nondischargeable pursuant to the 11 U.S.C. § 523(a)(6) exception for debts for
“willful and malicious injury.” It found only the amount owing to Ali for the
battery count to be dischargeable, and it attributed $2,500 of her jury award
to this count. (Id. at 13.) This debt was dischargeable, it found, because
Defendant did not intend to make physical contact with Ali when he poked her
forehead, and therefore the injury could not have been “willful” within the
meaning of § 523(a)(6). (Id. at 12.) On appeal, Defendant argues that the
Bankruptcy Court erred in its finding that Plaintiffs’ other injuries were
“willful and malicious” within the meaning of § 523(a)(6).
II.

Standard of Review
United States district courts have jurisdiction to hear appeals “from final

judgments, orders, and decrees . . . of bankruptcy judges.”
7

28 U.S.C. §

158(a)(1). “In its appellate capacity, a district court may affirm, modify, or
reverse a bankruptcy judge’s judgment, order, or decree or remand with
instructions for further proceedings.” Choi v. Promax Invs., LLC, 486 B.R. 541,
543 (N.D. Ga. 2012) (quotation omitted).
A district court is required to accept the bankruptcy court’s factual
conclusions unless they are clearly erroneous. Id.; Fed. R. Bankr. P. 7052
(making Fed. R. Civ. P. 52 applicable to adversary proceedings); Fed. R. Civ.
P. 52(a)(6) (“Findings of fact, whether based on oral or other evidence, must
not be set aside unless clearly erroneous, and the reviewing court must give
due regard to the trial court’s opportunity to judge the witnesses’ credibility.”).
The bankruptcy court’s conclusions of law, by contrast, are reviewed de novo.
Reider v. FDIC (In re Reider), 31 F.3d 1102, 1104 (11th Cir. 1994).
With respect to the dischargeability exception at issue in this appeal—
11 U.S.C. § 523(a)(6)—“[w]e review de novo any legal interpretation of the
terms ‘willful’ and ‘malicious,’ but we review only for clear error the bankruptcy
court’s finding that a creditor showed a willful and malicious injury by a
preponderance of the evidence.” Kane v. Stewart Tilghman Fox & Bianchi,
P.A. (In re Kane), 755 F.3d 1285, 1293 (11th Cir. 2014) (citing Chrysler Credit
Corp. v. Rebhan, 842 F.2d 1257, 1264 (11th Cir. 1988), abrogated on other
grounds, Grogan v. Garner, 498 U.S. 279 (1991)). In other words, while “[a]
8

bankruptcy court’s determination that an injury was ‘willful and malicious’ is
a factual finding that we review only for clear error,” id., the reviewing court
must inquire anew into the legal meaning of a “willful and malicious injury” to
ensure that the correct standard was applied in making the relevant factual
determinations.
It is a general rule that exceptions to discharge are to be construed
strictly “in order to give effect to the fresh start policy of the Bankruptcy Code.”
Holland v. Villa (In re Villa), 261 F.3d 1148, 1152 (11th Cir. 2001) (citing Hope
v. Walker (In re Walker), 48 F.3d 1161, 1165 (11th Cir. 1995)). At the same
time, Congress enacted the exceptions to discharge to ensure that this “‘fresh
start’ policy is only available to the ‘honest but unfortunate debtor.’” United
States v. Mitchell (In re Mitchell), 633 F.3d 1319, 1326 (11th Cir. 2011) (quoting
United States v. Fretz (In re Fretz), 244 F.3d 1323, 1326 (11th Cir. 2001)).
III.

Discussion

A. The Issues on Appeal
This appeal requires the Court to interpret the meaning of “willful and
malicious injury” as applied to the torts of slander and false imprisonment.
The questions, broadly put, are these: Does a slanderer’s genuine but false
belief in the truth of his slander preclude the possibility that his victim’s
injuries were “willful”?

That they were “malicious”?
9

What about a false

imprisoner’s genuine but false belief in the lawfulness of the confinement he
causes?
Defendant makes a forceful argument that we should answer these
questions in the affirmative. The essence of his argument is that because the
Bankruptcy Court found that Defendant “genuinely believed Plaintiffs stole
his wallet,” it could only have found the injuries he caused to have been “willful
and malicious” if it misconstrued the legal standard.

Under the correct

standard, Defendant argues, his mistaken belief precludes a finding that the
injury was “willful” because the slander and false imprisonment torts he
committed were, at worst, reckless; he could not have intended the tortious
consequences of his actions as the controlling interpretations of § 523(a)(6)
require. According to Defendant, the mistaken belief also precludes a finding
that the injury was “malicious” because, “so long as Watson was acting under
this mistaken but genuine belief, his actions did not become ‘excessive’ [and
thus malicious] merely because he continued to encourage prosecution of
Plaintiffs[.]” (Doc. 7 at 21.) Defendant therefore urges this Court to reverse
the Bankruptcy Court’s conclusions as to the nondischargeability of most of the
relevant debt and to direct the Bankruptcy Court to enter a judgment that it
is dischargeable in its entirety.

10

Courts in the Eleventh Circuit evaluating the applicability of the 11
U.S.C. § 523(a)(6) discharge exception generally analyze the “willful” and
“malicious” elements separately. See Figueroa v. Barreto (In re Barreto), 514
B.R. 702, 714 n.13 (Bankr. S.D. Fla. 2013). The Court will do the same here,
but with one preliminary observation. As noted above, the state court verdict
did not specify the claims or claim on which the jury found for Plaintiffs, and
thus the Court cannot be certain which exact “injuries” gave rise to Defendant’s
debt. This puts a reviewing court in a strange position. For the Court cannot
say for certain whether Defendant committed slander, false imprisonment, or
both, although it can be certain that he was found to have committed at least
one of these torts.6 The exact nature of the “injury” giving rise to the relevant
debt is therefore uncertain.

The Court cannot ignore the nature of the

underlying claims, for without them it has no way of determining the “injury”
to which the “willful and malicious injury” standard must be applied. For the
sake of its analysis, the Court must therefore assume—without deciding—that
the state court jury found for Plaintiffs on both the false imprisonment and
slander counts. If, in the end, it appears that one injury was “willful and

We do not discuss the issue of battery, for the Bankruptcy Court’s finding
that $2,500 of the debt derived from this claim and that this amount was
dischargeable has not been challenged on appeal.
6

11

malicious” and the other was not, it will be up to the Bankruptcy Court to
determine what portion of the debt was allocated to each tort—something it
has already done with respect to the debt arising from Plaintiff Ali’s battery
claim.
B. Willful Injury
“A debtor is responsible for a ‘willful’ injury when he or she commits an
intentional act the purpose of which is to cause injury or which is substantially
certain to cause injury.” In re Kane, 755 F.3d at 1293 (quoting Maxfield v.
Jennings (In re Jennings), 670 F.3d 1329, 1334 (11th Cir. 2012)); see also
Kawaauhau v. Geiger, 523 U.S. 57, 61-62 (1998) (holding that § 523(a)(6)
requires the actor to intend the injury, not just the act that leads to the injury).
The Eleventh Circuit has not yet had occasion to decide “whether the term
‘substantial certainty’ is a subjective standard, requiring a creditor to prove
that a debtor actually knew that the act was substantially certain to injure the
creditor, or an objective standard, requiring a creditor to show only that a
debtor’s act was in fact substantially certain to cause injury.” In re Kane, 755
F.3d at 1293; see also PNC Bank, N.A. v. Nix (In re Nix), No. 17-81289-CRJ-7,
2018 WL 3339620, at *6 (Bankr. N.D. Ala. July 6, 2018) (“The Court of Appeals
has declined on at least two occasions to parse the distinction, finding each
time that even under the more stringent subjective standard that the evidence
12

in the cases before it supported a finding of nondischargeability.”). Other
circuits disagree on this question. Compare In re Ormsby, 591 F.3d 1199, 1206
(9th Cir. 2010) (debtor must actually know that injury is “substantially
certain” for finding of willfulness), with In re Scholnik, 670 F.3d 624, 630 (5th
Cir. 2012) (finding willfulness where creditor “showed an objective substantial
certainty of harm”).
In evaluating the parties’ arguments, this Court will have to apply this
relatively general standard to two torts that, with respect to § 523(a)(6), have
not received much attention in the Eleventh Circuit. Where necessary, the
Court has looked to other circuits’ application of the “willful and malicious
injury” standard to debts arising from defamation and false imprisonment.
Having done so, this Court must agree with the Seventh Circuit that “courts
are all over the lot” in defining the phrase. Jendusa-Nicolai v. Larsen, 677
F.3d 320, 322 (7th Cir. 2012).
The Bankruptcy Court found that Defendant “genuinely believed”
Plaintiffs had stolen his wallet. Defendant argues that, on the basis of this
finding, the degree of fault in the slander and false imprisonment torts he
committed was, at worst, recklessness.

He contends, therefore, that the

Bankruptcy Court’s finding that the injuries were “willful” was an error of law:
“nothing more than a recasting of the ‘reckless disregard’ standard expressly
13

rejected by Congress,” the Eleventh Circuit, and the Supreme Court. In re
Walker, 48 F.3d 1161, 1165 (1995)). The Court finds this argument persuasive
as to the “willfulness” of the slander injury, but not the false imprisonment
injury.
1. Slander
An action for slander in Georgia can be sustained on a showing of “fault
by the defendant amounting at least to negligence.” Mathis v. Cannon, 573
S.E.2d 376, 380 (Ga. 2002). Regardless of their content and their effects, words
are not actionable as defamatory if they are true, or if their utterance is
privileged in certain prescribed ways. See O.C.G.A. §§ 51-5-5, 51-5-6. The
lower fault requirement applied under state law meant that, here, the state
court jury’s findings could not have an issue preclusion effect with respect to
“willfulness.” (See Doc. 1-2 at 10.) The Bankruptcy Court was of course free
to make its own factual finding that the degree of fault in the relevant slander
amounted to a “willful . . . injury” under 11 U.S.C. § 523(a)(6). This Court,
however, is inclined to agree with Defendant regarding the application of the
legal standard to the slander injury. If Defendant never had actual knowledge
or substantial certainty of the falsity of his accusations, it would, as a matter
of law, preclude the finding that his slander amounted to “an intentional act

14

the purpose of which [was] to cause injury or which [was] substantially certain
to cause injury.” In re Kane, 755 F.3d at 1293.
Under Georgia law, “imputing to another a crime punishable by law” is
slander per se: “damage is inferred” from the act, meaning that no actual
damages need to be shown. O.C.G.A. § 51-5-4(a), (b); see Ingram v. Kendrick,
172 S.E. 815, 816 (Ga. Ct. App. 1934) (“To charge one orally with stealing is a
slander or defamation per se, and damage to the slandered person is inferred
therefrom.”). This creates an analytical wrinkle when it comes to deciding
whether the utterance of a slanderous per se statement is “willful”—that is,
whether it is “an intentional act the purpose of which is to cause injury or
which is substantially certain to cause injury.” In re Kane, 755 F.3d at 1293.
The difficulty arises because the distinction between act and injury on which
this standard is based is not present here: the nature of slanderous per se
statements is such that the law presumes injury from the act of speaking itself.
See In re Boland, 946 F.3d 335, 338 (6th Cir. 2020) (citations omitted).
Given this unique characteristic of defamation per se torts, the courts
that have most carefully considered the issue since Kawaauhau have
concluded that, with respect to defamation per se, the willfulness inquiry
should focus on the falsity of the statement. The Sixth Circuit offers the
clearest statement of the rationale for this rule:
15

As [Kawaauhau v. Geiger] emphasizes, a debtor might act
intentionally but simply not know that the act will cause injury.
That is typically the case with judgments involving negligence. In
such cases, the creditor will need to show that the debtor knew
injury would result from his actions to except the judgment from
discharge.
But the law will sometimes presume that injury results from
an act. Such is the case for false statements imputing a lack of
chastity, which are defamatory per se. The law presumes that
those statements will injure. Thus, all a creditor needs to prove to
except a defamation per se judgment from discharge is that the
debtor knew the facts which made his statements actionable: that
they were false and published without privilege to a third party.
The judgment precludes the debtor from arguing that he thought
his words weren’t harmful. Any debtor who makes a knowingly
false, defamatory per se statement is at least substantially certain
that his statement will injure.
Doe v. Boland (In re Boland), 946 F.3d 335, 338-39 (6th Cir. 2020) (citing
Kennedy v. Mustaine (In re Kennedy), 249 F.3d 576, 582-83 (6th Cir. 2001)); see
also Schrader v. Sangha, No. 6:13-bk-16964-MH, 2022 WL 987421, at *11-*12
(Bankr. C.D. Cal. Mar. 31, 2022) (reaching same conclusion after collecting
cases and conducting detailed analysis of the willfulness requirement in
context of defamation); In re Kennedy, 249 F.3d at 583 (knowledge of falsity
sufficient to find willfulness in cases of defamation per se, because courts
“presume that the speakers make such statements knowing that substantial
harm or injury will result”); Marshall v. Marshall (In re Marshall), 264 B.R.
609, 630 (C.D. Cal. 2001) (“Libel and defamation claims are nondischargeable
under § 523(a)(6) when the statements were made with actual knowledge of
16

their falsity.”); Pagones v. Mason (In re Mason), Nos. 95-B-41537-JLG,
95/1653A, 1999 WL 58579 at *3 (Bankr. S.D.N.Y. 1999) (“The intentional tort
of defamation [sic] may constitute ‘willful and malicious injury’ by the debtor
to another entity under § 523(a)(6) of the Bankruptcy Code, as long as the
debtor knew the published statements were false.”).

This rule is also

consistent with the view of the leading bankruptcy treatise. See 4 Collier on
Bankruptcy ¶ 523.12(5) (16th ed. 2019) (“A judgment obtained in an action of
slander or libel may also be excepted from the operation of a discharge, at least
when the cause of action requires knowledge of the falsity of the published
statements and not mere reckless disregard for the truth or falsity of the
statement.”).
The Court holds, therefore, that debts for slander per se are “willful”
under 11 U.S.C. § 523(a)(6) if a debtor knew or was “substantially certain” that
the defamatory statement was false and published without privilege.7 Cf. In
re Kane, 755 F.3d at 1293 (“A debtor is responsible for a ‘willful’ injury when
he or she commits an intentional act the purpose of which is to cause injury or

As noted above, the Eleventh Circuit has not yet had occasion to decide
“whether the term ‘substantial certainty’ is a subjective standard, requiring a
creditor to prove that a debtor actually knew that the act was substantially
certain to injure the creditor, or an objective standard, requiring a creditor to
show only that a debtor’s act was in fact substantially certain to cause
injury.” In re Kane, 755 F.3d at 1293.
7

17

which is substantially certain to cause injury.”) In the context of slander per
se, the focus of the willfulness inquiry is not on intent to injure because injury
is always, as a matter of law, “substantially certain” to result from such
statements: that is the essence of defamation per se.8

This rule avoids

disturbing the common law (and legislative where, as in Georgia, the common
law of defamation has been codified) determination that slanderous per se
statements have the natural and obvious consequence of injuring their targets.
See, e.g, Gordon Doc. Products v. Serv. Tech, 708 S.E.2d 48, 57 (Ga. Ct. App.
2011) (words constituting slander per se “are those which are recognized as
injurious on their face”); No Witness, LLC v. Cumulus Media Partners, LLC,
No. 1:06-cv-1733-JEC, 2007 WL 4139399, at *13 (N.D. Ga. Nov. 13, 2007)
(“Damage is assumed in situations involving slander per se because the
language itself is sufficient to automatically infer negative consequences.”); cf.
Alan v. Wells Fargo Bank, N.A., 604 F. App’x 863, 865 (11th Cir. 2015)
(observing, in applying Florida law, that “[p]er se defamatory statements are

The limited bankruptcy court cases in the Eleventh Circuit dealing with §
523(a)(6) dischargeability of defamation per se judgments do not clearly
adopt this reasoning, but they do not foreclose it. See, e.g., Peteghem v.
Kohler (In re Kohler), Nos. 12-24328-JRS, 13-02026-JRS, 2017 WL 1030724,
at *71-*72 (Bankr. N.D. Ga. Mar. 14, 2017) (finding jury judgment for slander
per se had collateral estoppel effect with respect to willfulness where the
undisputed testimony at trial showed that Plaintiffs knew their accusation
was false and that the statement was “made with the intent to injure”).
8

18

‘so obviously defamatory’ and ‘damaging to reputation’ that they ‘give[] rise to
an absolute presumption both of malice and damage’”) (quoting Wolfson v.
Kirk, 273 So. 2d 774, 776 (Fla. 4th DCA 1973)).
2. False Imprisonment
Regarding the tort of false imprisonment, the most generous reading of
Defendant’s argument on appeal is that because Defendant genuinely believed
Plaintiffs to have stolen his wallet, his actions leading to Plaintiffs’ “unlawful
detention,” O.C.G.A. § 51-7-20, could not have been actions “the purpose of
which is to cause injury or which [are] substantially certain to cause injury.”9
In re Kane, 755 F.3d at 1293.
The Court notes, as a preliminary matter, that false imprisonment—
unlike slander—is an intentional tort. Williams v. Smith, 713, 348 S.E.2d 50,
52 (Ga. Ct. App. 1986) (“False imprisonment is an intentional tort, not a tort
of negligence.”); Restatement (Second) of Torts, § 35 (categorizing “false
imprisonment” as an intentional tort and listing intention to confine as one of
its elements); cf. Kawaauhau, 523 U.S. at 62 (“[T]he (a)(6) formulation triggers
in the lawyer’s mind the category “intentional torts,” as distinguished from
negligent or reckless torts.”). In Georgia, “[t]he essential elements of the cause

Defendant’s briefing does not distinguish clearly between possible injuries
resulting from false imprisonment and those resulting from slander.
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19

of action for false imprisonment are a detention of the person of another for
any length of time, and the unlawfulness of that detention.” Fields v. Kroger
Co., 414 S.E.2d 703, 704 (Ga. Ct. App. 1992) (citing O.C.G.A. § 51-7-20). An
action for false imprisonment lies when the defendant acts “with the intention
of causing a confinement”; therefore, “there can be no such tort as a negligent
false imprisonment.” Stewart v. Williams, 255 S.E.2d 699, 701 (Ga. 1979).
There is no dispute that Defendant acted with the intention of having
Plaintiffs confined; this was a factual finding of the Bankruptcy Court. (See
Doc. 1-2 at 11). Defendant’s argument does not seem to contest this finding.
Rather, it seems to rest on the idea that while he may have had the requisite
intent to commit the state-law intentional tort of false imprisonment, this
intent was still insufficient for Defendant’s conduct to be “willful” as a matter
of federal law. He would, in other words, ask this Court to hold that a person
who commits the tort of false imprisonment only does so willfully—that is, acts
with the “purpose . . . to cause injury,” In re Kane, 755 F.3d at 1293—when he
both intends confinement and intends the confinement to be unlawful.
The Court is not persuaded that this view of the “willfulness”
requirement is consistent with the cases interpreting and applying § 523(a)(6).
In the context of debts arising from torts (as opposed to breaches of contract or
other non-tortious injuries), the cases have followed Kawaauhau and In re
20

Walker to construe the term “willful . . . injury” in general conformity with the
law of intentional torts, rather than to create a separate, more demanding
category. Kawaauhau identifies the “willful . . . injury” standard with “the
category [of] ‘intentional torts,’ as distinguished from negligent or reckless
torts.” Kawaauhau, 523 U.S. at 61. In this context, acting with “intent to
cause injury” means “intend[ing] ‘the consequences of an act,’ not simply ‘the
act itself.’” Id. at 61-62 (quoting Restatement (Second) of Torts § 8A, comment
a). The Eleventh Circuit has described the standard in essentially the same
way. See In re Walker, 48 F.3d at 1165 (“[U]nder the common law, the word
‘intent’ . . . denote[s] that the actor desires to cause the consequences of his act,
or that he believes that the consequences are substantially certain to result
from it.”) (quoting Conte v. Gautam (In re Conte), 33 F.3d 303, 308 (3rd Cir.
1994); Restatement (Second) of Torts, § 8A) (emphasis in original).

The

Eleventh Circuit’s leading decisions interpreting § 523(a)(6) contrast its
definition of willfulness, which we have quoted above, with “reckless disregard
of the rights of another” and “recklessly or negligently inflicted injuries,”
suggesting that the crucial distinction is that between intentional torts and
torts of negligence. See In re Walker, 48 F.3d at 1163; Maxfield v. Jennings (In
re Jennings), 670 F.3d 1329, 1334 (11th Cir. 2012). We cannot find support in
the cases for the idea that, to be found “willful,” an injury must be analogous
21

to a “specific intent” crime, in that there must be intent with respect to every
element that makes the injury actionable. Nor does this seem to be the way
that other courts have treated the application of the § 523(a)(6) willfulness
standard to judgments for false imprisonment. All have simply treated the
fact that it is an intentional tort as basically conclusive of the issue. See
Erickson v. Halverson (In re Halverson), 226 B.R. 22, 29 (Bankr. D. Minn. 1998)
(“Since

David

committed

three

intentional

torts

[including

false

imprisonment], his conduct was willful.”); Jendusa-Nicolai v. Larsen, 422 B.R.
913, 921 (Bankr. E.D. Wis. 2010), aff’d., 442 B.R. 905 (E.D. Wis. 2010), aff’d,
677 F.3d 320 (7th Cir. 2012).
To put things plainly, the Court’s analysis is the following.

False

imprisonment is an intentional tort. For an injury arising out of this tort to be
“willful” within the meaning of 28 U.S.C. § 523(a)(6)—to show that he acted
intentionally and with “the purpose . . . to cause injury”—it is enough that the
debtor acted with the purpose to confine his victim. The debtor need not act
with the specific purpose to unlawfully confine his victim, although of course
such confinement must in fact be found unlawful if the creditor is to have a
valid action for false imprisonment.
This approach is consistent with the plain language of the Georgia
Supreme Court’s statements about false imprisonment, namely that “[t]o
22

constitute a false imprisonment, the act of the defendant in confining the
plaintiff must be done with the intention of causing a confinement.” Stewart
v. Williams, 255 S.E.2d 699, 701 (1979). This suggests that intent is relevant
only with respect to the confinement, not its “unlawfulness.” This view is also
consistent with two circuit courts’ appraisal of the tort, including one from a
case that is binding on this Court as pre-1981 Fifth Circuit precedent.10 See
Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1479 (9th Cir. 1992)
(concluding, with respect to a statement of the Oregon law of false
imprisonment virtually identical to Georgia’s, that “the intent element relates
only to the fact of confinement, not the element of unlawfulness”); Bryan v.
Jones, 530 F.2d 1210, 1213 (5th Cir. 1976) (“[W]e surveyed the law of false
imprisonment and concluded that intent to imprison without legal authority
need not be proved as an element of the prima facie case. . . . [A] prima facie
case [for false imprisonment] is made out against a jailer even when he believes
he has legal authority to detain a prisoner. Accordingly, whatever impact his
good faith has, it must be as an element of a defense.”) (citing Whirl v. Kern,

The Eleventh Circuit has adopted as precedent the decisions of the former
Fifth Circuit handed down before October 1, 1981, unless Eleventh Circuit en
banc or Supreme Court decisions subsequently have considered the issue.
Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982); Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

10

23

407 F.2d 781 (5th Cir. 1968)); 1 Harper, James & Gray on Torts, § 3.7 (3d ed.
2006) (“[T]he defendant may be liable although he acted under a reasonable
but mistaken belief that he was privileged to imprison or arrest the plaintiff.”);
Restatement (Second) of Torts § 44 (1965) (“to make the actor liable . . . it is
only necessary that he intend to confine the other. . . . The actor’s motives in
so confining the other are immaterial.”).
To be sure, the foregoing discussion does not suggest that Defendant’s
genuine belief in the truth of his allegations is irrelevant to the analysis of false
imprisonment injuries under § 523(a)(6). It only means that these beliefs go to
the question of whether the injury was “malicious,” since obviously a genuine
belief that the consequences one intended were lawful is relevant to whether
an injury was “wrongful and without just cause or excessive.”11 In re Jennings,
670 F.3d at 1334 (quoting Hope v. Walker (In re Walker), 48 F.3d 1161, 1164
(11th Cir. 1995)). The Eleventh Circuit has consistently analyzed willfulness
and malice separately—and given them separate definitions—and the Court is
bound to follow this approach.

That it is relevant to this question does not necessarily mean that it is
dispositive of the issue as a matter of law. The Court discusses this below in
connection with its discussion of malice.
11

24

We hold, in conclusion, that debts resulting from the intentional tort of
false imprisonment are debts for “willful . . . injury” under 11 U.S.C. § 523(a)(6)
when the debtor intended to confine his victim. It is not necessary, for the
purpose of willfulness, that the debtor intended this confinement to be
unlawful.
3. The “Willfulness” Standard Applied by the Bankruptcy Court
Given the foregoing analysis, the Bankruptcy Court’s finding that the
injury from Defendant’s false imprisonment of Plaintiffs was “willful” must be
affirmed. The Bankruptcy Court observed, for example, that Defendant clearly
intended his accusations to cause Plaintiffs to be detained by the police; that
Defendant did much to “propel the investigation of Plaintiffs” beyond merely
report their conduct; and that his “own statements show he was aware that his
accusation would result, at a minimum, in an investigation of Plaintiffs by
police.” (See Doc. 1-2 at 11.) In other words, Defendant acted with the purpose
of having Plaintiffs confined.
However, the Bankruptcy Court’s willfulness determination with respect
to slander cannot be reconciled, on the present record, with its finding that
Defendant genuinely believed Plaintiffs stole his wallet.

To be sure, the

Bankruptcy Court correctly stated that “Defendant must have ‘intended the
consequences of an act, not simply the act itself,’” and that “neither
25

recklessness nor negligence are sufficient to establish willfulness.” (Doc. 1-2
at 9) (quoting Kawaauhau, 523 U.S. at 61-62, 64) (internal quotation omitted).
But, as Defendant points out, the Bankruptcy Court also states that Defendant
had a genuine belief in the truth of his accusations without mentioning if this
is relevant to whether the slander was “willful.”
The Court will reverse the judgment on this point and remand to the
Bankruptcy Court. The Court considers that the Bankruptcy Court’s factual
findings imply the possibility that at some point Defendant could no longer
have believed his wallet was stolen by Plaintiffs, or that he might have come
to know it was “substantially certain” that his statements were false. The
Bankruptcy Court noted, for example, that “Defendant’s behavior continued
even after Parker had looked in each of the women’s purses without finding
the missing wallet.” (Doc. 1-2 at 10.) Plaintiff Ali testified in the state court
trial that both Plaintiffs had no pockets, and the officer who checked the
women’s bags stated that, when he did not find the wallet in either one, he
thought they were “out of the equation” as suspects in any possible theft of the
wallet. (Doc. 4-9 at 158; id. at 111-112, 124.) It appears from the testimony in
the state court trial that Defendant most likely observed the purses being

26

checked.12 At the same time, the Bankruptcy Court made a relatively absolute
finding that Defendant “genuinely believed Plaintiffs had taken his wallet.”
(Doc. 1-2 at 11.) It did so without any clear qualification as to the timing of
this belief, although in the context of the malice analysis it seems to be
referring to the time when Defendant first made his accusations to the police.
(See id. at 11-12.) Given this ambiguity, the Court cannot be sure how to apply
the “genuine belief” finding to the question of whether Defendant knew his
statements to be false or whether he was substantially certain they were false
throughout the entire course of events, or only in the initial stages of the
incident. As the Court has said, the question of whether a preponderance of
the evidence shows willfulness is a question of fact. See In re Kane, 755 F.3d
at 1293. It is, for this reason, a question best left to the Bankruptcy Court,
particularly where answering it involves weighing the credibility of the parties’
testimony. See id. at 1288 (citing Englander v. Mills (In re Englander), 95 F.3d
1028, 1030 (11th Cir.1996)).

The Court will therefore remand to the

There is testimony at the state court trial to the effect that the Tanqueray
Lounge is a relatively small establishment. (See Doc. 4-9 at 149-150, 157.)
Plaintiff Ali also testified at trial that while the purses were checked,
Defendant was present, “walking back and forth calling us all kinds of
derogatory names.” (Doc. 4-9 at 159.)
12

27

Bankruptcy Court for a reexamination of the record in light of the legal
standard articulated above.
C. “Malicious Injury”
A “malicious” injury is one that is “wrongful and without just cause or
excessive even in the absence of personal hatred, spite or ill-will.” Maxfield v.
Jennings (In re Jennings), 670 F.3d 1329, 1334 (11th Cir. 2012) (quoting Hope
v. Walker (In re Walker), 48 F.3d 1161, 1164 (11th Cir. 1995)). “To establish
malice, ‘a showing of specific intent to harm another is not necessary.’” Id.
(quoting Lee v. Ikner (In re Ikner), 883 F.2d 986, 991 (11th Cir. 1989)).
The Bankruptcy Court based its finding of malice on the following
reasoning:
[R]eporting a crime cannot be said to be wrongful, excessive, or
without just cause, even if based on a mistaken belief. However,
reporting of an alleged crime did not require Defendant to continue
claiming that Plaintiffs had stolen his wallet and that they were
going to go to jail. After reporting that his wallet was missing and
the officers began investigating, Defendant’s civic duty was done
and his continued accusations using derogatory and profane
language became wrongful and without just cause and excessive.
(Doc. 1-2 at 11-12.)

Defendant argues that this reasoning manifests the

application of an erroneous legal standard on essentially the same grounds on
which he contested the finding of willfulness. There can be no finding of
malice, he argues, where Defendant was merely doing his “‘civic duty’ to report

28

a crime.” In doing so, he could not have caused an injury that was “wrongful
and without just cause.” (Doc. 7 at 19.) And that injury could not have been
“excessive” because, “so long as Watson was acting under [his] mistaken but
genuine belief, his actions did not become ‘excessive’ merely because he
continued to encourage prosecution of Plaintiffs after he first reported
believing he was the victim of a crime.” (Doc. 7 at 21.) The question put to this
Court is thus whether the finding that Defendant “genuinely believed” his
accusations precludes, as a matter of law, a finding that the injuries he caused
were “malicious.”
After a careful consideration of the record, the parties’ arguments, the
case law, and the reasoning of the Bankruptcy Court, this Court cannot agree
that it does. At least in the Eleventh Circuit, the “malicious injury” inquiry—
in contrast to that for willfulness—is not so exclusively focused on the debtor’s
state of mind. The debtor’s state of mind is obviously relevant, and often
central, to the inquiry. But the Court is not persuaded that, as a matter of law,
Defendant’s belief absolutely foreclosed any other finding with respect to
whether the injuries inflicted were malicious.
The Court believes this reading of “malicious injury” follows from the
Eleventh Circuit’s articulations and applications of the standard. Its definition
does not preclude findings of malice where the debtor’s actions might be
29

determined to be “wrongful and without just cause or excessive” despite the
debtor’s belief that he was justified or that his actions were not legally wrong.
This much is suggested by the fact that the Eleventh Circuit has specified that
an action may be “wrongful and without just cause or excessive even in the
absence of personal hatred, spite or ill-will,” and furthermore that “a showing
of specific intent to harm another” is not necessary to make a finding of malice.”
In re Jennings, 670 F.3d at 1334 (emphasis added). It has also explicitly
sanctioned findings of “[c]onstructive or implied malice,” where “the nature of
the act itself implies a sufficient degree of malice,” In re Ikner, 888 F.3d at 991.
This language suggests that the malice inquiry can look as much to the act
itself and the surrounding circumstances as to the subjectivity of the debtor.
The Eleventh Circuit’s application of the malice standard confirms this
interpretation. In re Kane, for example, involved a creditor who held a state
court judgment against the debtor arising out of claims for unjust enrichment
and quantum meruit. The parties were lawyers who had previously worked
together on complex litigation, which the debtors had secretly settled without
notifying the creditor law firm—which, under the terms of the settlement,
would receive nothing for its work. In evaluating the “malice” element, it
concluded that the bankruptcy court’s determination that each debtor had
“acted not merely to pad his own pocket but with ill will toward the [creditors]”
30

represented a correct application of the standard. Id. at 1294. It enumerated
several different reasons why “the bankruptcy court was free to imply malice.”
Id. First, the debtors’ acts were “wrongful and without just cause” because
they knew that the creditors were seeking to settle their part of the litigation
for about $12 million, but they attempted to allocate them no money at all as
part of their own secret settlement. Id. at 1295. Second, one of the debtors—
but not both—testified to his discomfort with the provision, and evidence
suggested he felt that what he was doing was not right. Id. Third, the debtors’
acts were “wrongful” and “excessive” because of the “attempt to utterly
obliterate any compensation” to the creditor, and because the debtors’ “efforts
to cover their tracks were excessive too.” Id.
The circuit court’s reasoning here reveals three things about the proper
scope of the “malice” inquiry. First, it is not limited to a consideration of the
debtor’s state of mind with respect to or at the time of the injury. The Kane
court looked as much (if not more) to what the facts might have implied about
whether the injury was without just cause or excessive as to whether the debtor
knew his actions to be so. Second, the inquiry is not as narrowly focused on
the injury itself, but looks to the broader circumstances in which the injury
was carried out, such as the prior relations of the parties and the debtors’

31

subsequent “efforts to cover their tracks.”13 Third, the word “excessive”—a
feature that distinguishes the Eleventh Circuit’s definition of “malicious
injury” from that of other circuits—is not, as Defendant argues, without effect.
(See Doc. 7 at 21.) On the contrary, the court’s language suggests that the fact
that a debtor “committed wrongful acts that were ‘excessive’” could be an
independent ground for a bankruptcy court to “imply malice.” In re Kane, 755
F.3d at 1295.
Defendant also makes a more specific argument regarding the legal
standard for malice that should govern defamation injuries, citing a handful of
cases where courts declined to find a defamation “willful and malicious” when
the debtor genuinely believed the truth of his words. See Merritt v. Rizzo, 337
B.R. 180, 189 (Bankr. N.D. Ill. 2006); Qui v. Zhou (In re Zhou), 331 B.R. 274,
277 (Bankr. E.D. Mich. 2005); Davis v. Davis (In re Davis), 334 B.R. 874, 888
(Bankr. W.D. Ky. 2005); Langan v. Evers (In re Evers), 212 B.R. 945, 949
(1997); In re Pereira, 44 B.R. 248 (Bankr. D. Mass. 1984).

The Court is

It seems to the Court that, for this reason, the inquiry into malice is
necessarily less focused on the elements of the specific tort or other injury
that is at issue. The willfulness inquiry, by contrast, requires an
examination of a debtor’s intent with respect to a specific injury, which
necessarily must be defined according to the law that makes such an injury
actionable. It therefore entails the kind of closer analysis of the relevant tort
causes of action that the Court has conducted above.

13

32

basically in agreement with Defendant that, with respect to defamation torts,
the issue of mistaken belief is relevant “in the context of analyzing the issue of
intent.” (Doc. 7 at 20.) For this reason, the Court held above that the debtor’s
knowledge of the truth or falsity of his statement matters, for the purposes of
willfulness, in considering whether a debt arising from a defamation is
nondischargeable under § 523(a)(6).

However, the cases just cited either

consider knowledge of falsity in relation to malice or do not distinguish the
willfulness and malice inquiries. They are, in any event, only persuasive
authority on this Court, but more importantly they all come from circuits that
use definitions of “malicious injury” different from the Eleventh Circuit’s. And
for the reasons just discussed, the Eleventh Circuit’s malice inquiry lends itself
to consideration of what the debtor actually did as well as what he knew or
intended. The willfulness inquiry, by contrast, is more specifically concerned
with the debtor’s state of mind. Thus, the Court is not persuaded that any
bright-line rule regarding the debtor’s knowledge of truth or falsity applies in
the context of determining whether defamation injuries are “malicious.”
Given this reading of the malice requirement, the Court cannot conclude
that Defendant’s mistaken belief necessarily precluded a finding of malice as
a matter of law. The Bankruptcy Court was free to consider other factors in
deciding whether a preponderance of the evidence showed that the injuries
33

Defendant caused were “wrongful and without just cause or excessive.” It
applied the correct legal standard. The Court therefore “review[s] only for clear
error the bankruptcy court’s finding that a creditor showed a willful and
malicious injury by a preponderance of the evidence.” In re Kane, 755 F.3d at
1293 (citing Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1264 (11th Cir.
1988), abrogated on other grounds, Grogan v. Garner, 498 U.S. 279 (1991)).
The Court also cannot find clear error in these factual findings of the
Bankruptcy Court. Even after finding that Defendant genuinely believed in
the truth of his accusations, the Bankruptcy Court was free to imply malice.
It might have determined that Defendant committed “wrongful acts that were
excessive” when he continued to repeat his allegations loudly to those in the
bar and parking lot, when he taunted and intimidated Plaintiffs “using profane
and derogatory language,” and when he put pressure on law enforcement to
arrest Plaintiffs even after the police were already investigating, had
handcuffed Plaintiff Bradsher, and had checked both women’s belongings.
Why, the Bankruptcy Court might have wondered, would someone who really
believed he had “just cause” for all of his actions also insist on special treatment
by threatening to have police and Tanqueray employees reprimanded if they
did not cooperate? The Bankruptcy Court might also have considered the
interactions of Defendant and Plaintiff Bradsher prior to the incident and
34

determined that Defendant acted with “ill will” that resulted from more than
just his mistaken belief that he was robbed. The Court does not think it was
clear error for the Bankruptcy Court, after weighing the credibility of the
parties’ testimony and carefully reviewing its own and the state court record,
to imply malice despite Defendant’s mistaken belief.
Finally, the Court cannot accept the argument that one cannot act
“excessively” so long as one is acting under a mistaken belief. (See Doc. 7 at
21.) If the only actions at issue in this case were Defendant’s “reporting a
crime,” he could not have been found liable for false imprisonment and slander.
For both torts, Georgia law draws lines beyond which the attempt to
“encourage prosecution” of a crime exposes one to liability. (Id.) An action for
false imprisonment could not have been sustained against Defendant if he had
merely reported something to the police, allowing them to make an
independent determination of whether to investigate and arrest Plaintiffs. See
Welton v. Ga. Power Co., 375 S.E.2d 108, 111 (Ga. Ct. App. 1988) (“The law
draws a fine line of demarcation between cases where a party directly or
indirectly urges a law enforcement official to begin criminal proceedings and
cases where a party merely relays facts to an official who then makes an
independent decision to arrest or prosecute.

In the former case there is

potential liability for false imprisonment or malicious prosecution; in the latter
35

case there is not.”). And Georgia law recognizes a conditional privilege defense
to defamation under O.C.G.A. § 51-5-7, as long as one “acted in good faith, had
an interest to uphold (in this case a public duty), gave a statement properly
limited in its scope and upon a proper occasion,” and made publication to
“proper persons.” See Examination Mgmt. Servs. v. Steed, 794 S.E.2d 678, 68182 (Ga. Ct. App. 2016). Defendant was susceptible to liability in the state
court—and the Bankruptcy Court was free to find malice—precisely because
Defendant did more than just report (what he believed to be) a crime. These
points of state law are by no means dispositive of the malice question. But they
do dispose of the idea that a belief that one has been robbed can license any
sort of response. One can certainly act “excessively” pursuant to genuine—and
indeed true—beliefs. More to the point, many of Defendant’s actions had little
plausible relationship with his civic duty to report a suspected crime. This
seems to have been central to the Bankruptcy Court’s reasoning.
It is of course true that the Bankruptcy Court would also have been free
to weigh the evidence differently and to find that Defendant’s mistaken belief
weighed against the other factors discussed above. But it did not do so, and
the “heavy burden” for showing clear error falls on appellants. Thelma C.
Raley, Inc. v. Kleppe, 867 F.2d 1326, 1328 (11th Cir. 1989). It is “an especially
heavy burden . . . in a case in which the evidence is largely testimonial,” as a
36