Hardigree v. Lofton et al

Filing 92

ORDER: Plaintiffs 63 Motion for Partial Summary Judgment is GRANTED in part and DENIED in part. The Motion is GRANTED as to Count One (illegal entry) as to Officer Lofton but is otherwise DENIED. Defendant Officer Loftons 57 Motion for Summary Ju dgment is GRANTED in part and DENIED in part. The Motion is DENIED as to Count One (illegal entry), DENIED as to Count Two (false arrest), GRANTED as to Count Three (malicious prosecution), DENIED as to Count Four (excessive force), and DENIED as to Count Five (state law claims). Defendant Deputy Norriss 60 Motion for Summary Judgment is GRANTED in part and DENIED in part. The Motion is GRANTED as to Count One (illegal entry) and DENIED as to Count Four (excessive force). Defendant Trooper Smi ths 55 Motion for Summary Judgment is GRANTED. Defendant City of Stathams 59 Motion for Summary Judgment is GRANTED. Plaintiff, Defendant Officer Lofton, and Defendant Deputy Norris are ORDERED to file a proposed consolidated pretrial order within thirty days of this order. Signed by Judge Richard W. Story on 07/30/2019.(rsg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
ANTHONY WAYNE HARDIGREE,
Plaintiff,

CIVIL ACTION NO.

v.

2:17-CV-236-RWS

MARC LOFTON, CITY OF
STATHAM, GARRETT SMITH, and
CHAD NORRIS,
Defendants.

ORDER
This case is before the Court on Defendants’ Motions for Summary Judgment
[Doc. Nos. 55, 57, 59, and 60] and Plaintiff’s Motion for Partial Summary Judgment
[Doc. No. 63].
I.

Factual Background
This is a civil action related to the allegedly unlawful arrest of Plaintiff

Anthony Wayne Hardigree on August 4, 2016, at a mobile home in Statham,
Georgia.
A.

Drug Investigation of Anthony Rodgers

Anthony Rodgers, known in the Statham community as “Antman” and/or
“Ant,” was the subject of a criminal drug investigation [Doc. No. 60-2, ¶ 1,

admitted]. Based upon information from a confidential informant, law enforcement
officers were conducting surveillance of a known drug house on Wall Road in
Statham, Georgia, on August 4, 2016 [Doc. No. 57-2, ¶ 1, admitted]. Defendant
Chad Norris, a Barrow County Sheriff’s Deputy, and Defendant Marc Lofton, a City
of Statham police officer, were involved in the surveillance operation [Doc. No. 602, ¶ 1, admitted]. Law enforcement observed Antman leaving the Wall Road
residence in a red Ford Explorer [Doc. No. 57-2, ¶ 2, admitted]. After losing
Antman, Defendant Norris made a call out on the radio to stop the Explorer [Id., ¶
3, admitted; Doc. No. 60-2, ¶ 2, admitted].
Nicole Geiman, another Barrow County Sheriff’s Deputy, followed up on the
radio traffic connected to Antman and joined the search for his Explorer [Doc. No.
60-2, ¶ 3, admitted]. After a few minutes, Deputy Geiman spotted the Explorer near
a mobile home located on McCarty Road in a mobile home park [Doc. No. 57-2, ¶¶
5-6, admitted]. This mobile home was Plaintiff’s residence [Id., ¶ 5, admitted]. As
she pulled up, Deputy Geiman observed Antman leaving Plaintiff’s residence
carrying a bag or backpack over his shoulder and getting back into his Explorer [Doc.
No. 60-2, ¶ 5, admitted]. Deputy Geiman approached the vehicle, and Defendant
Lofton arrived shortly thereafter [Doc. No. 63-2, ¶¶ 13-14, admitted]. Defendant

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Smith, a Georgia State Patrol Trooper, was also asked to assist with the traffic stop
[Doc. No. 55-1, ¶ 1, admitted].
Trooper Smith saw Deputy Geiman speaking with Antman through the
driver’s side door of the Ford Explorer [Id., ¶ 7, admitted]. Trooper Smith asked
Antman for his driver’s license and immediately noticed an odor of marijuana [Id.,
¶ 8, admitted]. Deputy Geiman and Officer Lofton then arrested Antman and a
female occupant of the Explorer [Doc. No. 63-2, ¶ 15, admitted]. Deputy Geiman,
Trooper Smith, and Officer Lofton then searched the Explorer [Id., ¶ 16, admitted].
Inside the vehicle, they found approximately 29 grams of methamphetamine, some
marijuana, and other drug paraphernalia [Doc. No. 55-1, ¶ 13, admitted]; Doc. No.
57-2, ¶ 12, admitted]. During the search and while waiting for Deputy Norris to
arrive at the scene, Deputy Geiman informed Officer Lofton and Trooper Smith that
she had seen Antman walking from Plaintiff’s residence [Doc. No. 57-2, ¶ 13,
admitted]. Deputy Norris arrived about twenty-five minutes after Deputy Geiman
initiated the stop of the Explorer [Id., ¶ 15, admitted].
B.

Interaction with Plaintiff

Trooper Smith then approached the mobile home to conduct a knock-and-talk
with the residents [Doc. No. 55-1, ¶ 15, admitted]. One of the female residents,
Torry Craig, answered the door [Id., ¶ 16, admitted]. Ms. Craig told Trooper Smith

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that she did not know Antman but that her husband, Plaintiff Hardigree, had spoken
with him [Id., ¶ 17, admitted]. Ms. Craig then left the doorway of the mobile home
to get Plaintiff Hardigree [Id., ¶ 18, admitted]. Officer Lofton also approached the
door to speak with Plaintiff [Doc. No. 57-2, ¶ 21, admitted]. Plaintiff stated that he
did not know Antman well and that he was at the house to ask about a job at
Plaintiff’s brother’s welding shop [Id., ¶ 19, admitted; Doc. No. 63-2, ¶ 25,
admitted]. Officer Lofton interjected that Plaintiff was “in the game, too” [Doc. No.
57-2, ¶ 23, admitted]. Deputy Norris then approached the mobile home [Id., ¶ 25,
admitted]. Trooper Smith then stepped away, returning to his patrol car for a short
period of time and then standing near the door of the mobile home [Id.].
Deputy Norris asked for permission to come inside the residence to search it,
but Plaintiff refused to give his consent [Id., ¶ 26, admitted]. He stated that the
residence belonged to his sister [Id., ¶ 27, admitted]. Plaintiff argued with Officer
Lofton and Deputy Norris about closing his door and terminating the police
encounter; they told Plaintiff that he needed to exit the residence [Id., ¶ 29, admitted].
Instead, Plaintiff turned around to go farther inside the residence; he states that he
did so to call his sister [Doc. No. 60-2, ¶¶ 19-20, admitted]. Deputy Norris then
shouted “10-10,” the code for a fight in progress. [Doc. No. 55-1, ¶ 26, admitted].

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Officer Lofton entered the residence, followed by Deputy Norris, and tried to
stop Plaintiff from continuing farther into the residence [Doc. No. 57-2, ¶ 38,
admitted]. Officer Lofton then unholstered his taser and deployed it while Plaintiff
was standing up and facing him [Id., ¶ 40, admitted]. Trooper Smith and Deputy
Geiman rushed into the mobile home to assist [Id., ¶ 42, admitted]. Plaintiff was on
the ground, and Officer Lofton ordered him to show his hands [Id., ¶ 43, admitted].
Plaintiff did not do so, and Officer Lofton used his taser in a “drive stun” [Id., ¶ 47,
admitted]. Upon entering, Trooper Smith saw Plaintiff face-down on the ground
while Officer Lofton deployed the taser prongs and Deputy Geiman attempted to
place handcuffs on Plaintiff [Doc. No. 55-1, ¶ 28, admitted]. Plaintiff was then
placed under arrest and charged with simple assault and battery (under O.C.G.A. §
16-5-23), disorderly conduct (under O.C.G.A. § 16-11-39), and obstructing law
enforcement officers (under O.C.G.A. § 16-10-24) [Doc. No. 55-1, ¶ 36, admitted].
Trooper Smith then conducted a protective sweep of the mobile home [Doc.
No. 55-1, ¶ 32, admitted]. Trooper Smith’s only interaction with Plaintiff during or
after the use of force was after he had been placed under arrest and taken outside of
the mobile home [Id., ¶ 37, admitted]. Trooper Smith did not use any hands-on force
against Plaintiff [Id., ¶ 39, admitted].

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C.

Procedural History

This case was filed on November 13, 2017 [Doc. No. 1]. Plaintiff filed a
Second Amended Complaint on March 16, 2018 [Doc. No. 27]. In Counts One,
Two, and Four, Plaintiff asserts claims under 42 U.S.C. § 1983 against the individual
Defendants for unlawful entry, false arrest, and excessive force [Id.]. In Count
Three, Plaintiff asserts a § 1983 claim against Defendant Lofton for malicious
prosecution [Id.].

In Count Five, Plaintiff asserts state law claims against

Defendants Lofton and City of Statham for false imprisonment, assault, battery, and
malicious prosecution [Id.]. All parties have now moved for summary judgment
[Doc. Nos. 55, 57, 59, 60 and 63].
II.

Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be

granted “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
“The moving party bears ‘the initial responsibility of informing the . . . court of the
basis for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting

6

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted)).
Where the moving party makes such a showing, 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 does exist. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 257 (1986). The applicable substantive law identifies which facts are material.
Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence is
such that a reasonable jury could return a verdict for the non-moving party. Id. at
249-50.
In resolving a motion for summary judgment, the court must view all evidence
and draw all reasonable inferences in the light most favorable to the non-moving
party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But,
the court is bound only to draw those inferences that are reasonable. “Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 (once the

7

moving party has met its burden under Rule 56(a), the nonmoving party “must do
more than simply show there is some metaphysical doubt as to the material facts”).
III.

Analysis
The Court will discuss the qualified immunity doctrine generally and then

address each party’s arguments in turn.
A.

Qualified Immunity Doctrine

The doctrine of qualified immunity protects governmental officials who are
sued under 42 U.S.C. § 1983 for money damages in their personal, or individual
capacities, but only so long as “their conduct violates no clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine requires that a defendant
claiming immunity must initially “prove that ‘he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.’” Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d
1479, 1487 (11th Cir. 1991)). If that threshold prerequisite is satisfied, courts
generally apply a two-part test. The initial inquiry requires the court to determine
whether the facts, viewed “in the light most favorable to the party asserting the
injury,” show that “the officer’s conduct violated a constitutional right.” Saucier v.
Katz, 533 U.S. 194, 201 (2001). If that initial inquiry is answered affirmatively, then

8

the court will proceed to analyze the second aspect of the two-part test: i.e., “whether
the right was clearly established.” Id. Strict adherence to the order of those two
inquiries is not required, however. See Pearson v. Callahan, 555 U.S. 223, 236
(2009) (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should not longer be
regarded as mandatory.”) Instead, in appropriate cases, it is within a district court’s
discretion to assume that a constitutional violation occurred in order to address, in
the first instance, the question of whether such a presumed violation was “clearly
established” on the date of the incident leading to suit. Id.
When determining whether the unlawfulness of an official’s actions was
“clearly established,” the pertinent question is whether the state of the law on the
date of the defendant’s alleged misconduct placed defendants on “fair warning that
their alleged treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536
U.S. 730, 741 (2002); Williams v. Consolidated City of Jacksonville, 341 F.3d 1261,
1270 (11th Cir. 2003). The Supreme Court has rejected the requirement that the
facts of previous cases must always be “materially similar” to those facing the
plaintiff. Hope, 536 U.S. at 739. Instead, for a constitutional right to be deemed
“clearly established,”
its contours “must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say
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that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful; but it is to say
that in the light of pre-existing law the unlawfulness must be apparent.
Hope, 536 U.S. at 741 (citations omitted). An officer can receive “fair notice” of his
or her unlawful conduct in various ways.
First, the words of the pertinent federal statute or federal constitutional
provision in some cases will be specific enough to establish clearly the
law applicable to particular conduct and circumstances and to
overcome qualified immunity, even in the total absence of case law.
This kind of case is one kind of “obvious clarity” case. For example,
the words of a federal statute or federal constitutional provision may be
so clear and the conduct so bad that case law is not needed to establish
that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for example, the
Fourth Amendment on its face, we then turn to case law. When looking
at case law, some broad statements of principle in case law are not tied
to particularized facts and can clearly establish law applicable in the
future to different sets of detailed facts. For example, if some
authoritative judicial decision decides a case by determining that “X
Conduct” is unconstitutional without tying that determination to a
particularized set of facts, the decision on “X Conduct” can be read as
having clearly established a constitutional principle: put differently, the
precise facts surrounding “X Conduct” are immaterial to the violation.
These judicial decisions can control “with obvious clarity” a wide
variety of later factual circumstances. These precedents are hard to
distinguish from later cases because so few facts are material to the
broad legal principle established in these precedents; thus, this is why
factual differences are often immaterial to the later decisions. But for
judge-made law, there is a presumption against wide principles of law.
And if a broad principle in case law is to establish clearly the law
applicable to a specific set of facts facing a governmental official, it
must do so “with obvious clarity” to the point that every objectively
reasonable government official facing the circumstances would know

10

that the official’s conduct did violate federal law when the official
acted.
Third, if we have no case law with a broad holding of “X” that is not
tied to particularized facts, we then look at precedent that is tied to the
facts. That is, we look for cases in which the Supreme Court or we, or
the pertinent state supreme court has said that “Y Conduct” is
unconstitutional in “Z Circumstances.” We believe that most judicial
precedents are tied to particularized facts and fall in this category. . . .
When fact-specific precedents are said to have established the law, a
case that is fairly distinguishable from the circumstances facing a
government official cannot clearly establish the law for the
circumstances facing that government official; so, qualified immunity
applies. On the other hand, if the circumstances facing a government
official are not fairly distinguishable, that is, are materially similar, the
precedent can clearly establish the applicable law.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (citations omitted,
emphasis in original). See also Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“We
do not require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.”).
B.

Defendant Statham Police Officer Marc Lofton

Plaintiff asserts federal claims against Defendant Statham Police Officer Marc
Lofton for illegal entry (Count One), false arrest (Count Two), malicious prosecution
(Count Three), and excessive force (Count Four), and state law claims for false
imprisonment, assault and battery, and malicious prosecution (Count Five). Officer
Lofton asserts that he is entitled to summary judgment for four reasons: (1) Plaintiff
cannot establish a malicious prosecution claim; (2) he did not violate Plaintiff’s
11

constitutional rights; (3) assuming he violated Plaintiff’s constitutional rights, he is
entitled to qualified immunity; (4) Plaintiff’s state law claims fail because there was
probable cause; and (5) he is entitled to official immunity for claims based on state
law. Plaintiff argues that he is entitled to summary judgment on Count One because
Officer Lofton violated his clearly established Fourth Amendment rights by illegally
entering his home. The Court will address the series of events that took place during
the encounter between Plaintiff and law enforcement and address qualified immunity
in turn.
1.

Knock and Talk to Terry Stop

Plaintiff’s encounter with law enforcement began with what appears to be a
run-of-the-mill “knock and talk” when Trooper Smith knocked on Plaintiff’s door.
Law enforcement “[o]fficers are allowed to knock on a residence’s door or otherwise
approach the residence seeking to speak to the inhabitants just as any private citizen
may.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006).
[W]hen a citizen is not detained by a Terry stop or otherwise lawfully
detained and chooses to speak with an officer, that citizen has the right
to cease answering questions and walk away from the officer; this
encounter is entirely voluntary. When this type of interaction occurs as
the result of a citizen’s decision to speak with officers after they knock
on the door of his home, provided that no warrant or probable cause and
exigent circumstances exist, the citizen has the right to terminate his
voluntary participation in the conversation by retiring into his home and
closing the door.

12

Moore, 806 F.3d at 1044, n.11.
At some point in time, Officer Lofton and Deputy Norris approached the
porch, and Trooper Smith moved away towards his patrol car. The audio recording
of the encounter1 from Officer Lofton’s dash camera captured the following
dialogue:
LOFTON:

How do you know this guy [Antman]?

PLAINTIFF:

I don’t really know him.

LOFTON:

He didn’t bring you anything?

PLAINTIFF:

Just now?

LOFTON:

Yes, just now.

PLAINTIFF:

No, sir.

LOFTON:

He came inside?

PLAINTIFF:

Yes, I gave him a water and sent him on his way.

LOFTON:

So, he didn’t bring you anything?

PLAINTIFF:

No, sir.

LOFTON:

What’d he do? What do you think he did?

1

The Court has transcribed the encounter as accurately as possible. At some points during
the audio recording, it is unclear whether Deputy Norris or Officer Lofton is speaking. At
such times, the Court will refer to the speaker as “Officer.” The parties have addressed
many of the statements in their Statements of Material Facts.
13

PLAINTIFF:

I don’t know.

LOFTON:

So you don’t know what he was doing?

PLAINTIFF:

No, I don’t know what he was doing.

LOFTON:

You do, too. You’re in the game, too, man. I’ve arrested
you. I’ve locked you up before. [referencing Plaintiff’s
previous DUI (less safe) arrest]

PLAINTIFF:

I was taking medication because I was sick.

LOFTON:

You were not sick.

PLAINTIFF:

I was too sick. I got the paperwork that shows I was sick.
I nearly died. I would’ve died if I would’ve stayed at that
jail over there. You can believe that or not . . .
[unintelligible]. Y’all do what y’all gotta do.

NORRIS:

Hey, buddy. What’s your name?

PLAINTIFF:

Anthony.

NORRIS:

Anthony who?

PLAINTIFF:

Hardigree.

NORRIS:

Can we come inside?

PLAINTIFF:

No, sir.

NORRIS:

No?

PLAINTIFF:

It’s not my house.

NORRIS:

It’s not your house?

PLAINTIFF:

No.
14

NORRIS:

Okay. Where do you live?

PLAINTIFF:

I live here. I stay here. But it’s not my house.

NORRIS:

Whose house is it then?

PLAINTIFF:

My sister’s.

NORRIS:

Can you call her then?

PLAINTIFF:

Uh, yeah, I’ll call her.

NORRIS:

Whoa, stay right there.

PLAINTIFF:

It’s my door. I can’t close my door? You can’t keep me
from shutting my door.

NORRIS:

Whoa, stay right there.

PLAINTIFF:

It’s my door. I can’t close my door? You can’t keep me
from shutting my door.

OFFICER:

Uh, yeah, we can.

PLAINTIFF:

What have I done?

NORRIS:

Let me explain it to you. . . . Calm down. The thing is,
we’ve got a known drug dealer coming to your house,
coming in with a backpack. Coming out with a backpack.
He got drugs all over him. See, you’re talking too fucking
much.

PLAINTIFF:

No, I’m not.

NORRIS:

Give me a second. Let me explain to you everything we
got right now so you can make an educated decision. The
more you talk, the worse it’s going to be. So just give me
a second. So, we got a drug dealer, coming in your house
15

and coming out, and he’s got a whole lot of drugs all over
him. That leads us to believe – would leave anybody to
believe – he picked em up or dropped em off here. Now,
listen, the whole way you’re acting leads us to believe, as
cops, that you’re hiding something. Wanting to shut the
door, not letting us into the house, we can’t do this, we
can’t do that.
PLAINTIFF:

You got no reason to come into the house.

OFFICER:

Why’s that?

HARDIGREE:

He [Antman] was wanting to get a job. He was wanting
to go to work. I work over there with my brother, Darryl
Hardigree.

OFFICER:

You want me to tell you a secret? He sells so much dope,
he does not want to go to work.

PLAINTIFF:

Nope. No way.

OFFICER:

Yes.

HARDIGREE:

I’m going to go and get the phone.

LOFTON:

No, you ain’t going nowhere. You’re being detained at
this time.

NORRIS:

Come out here and have a seat.

[Doc. No. 57-11, 34:00 to 37:44]. Plaintiff clearly attempted to terminate what was
a consensual police encounter when he said: “It’s my door. I can’t close my door?
You can’t keep me from shutting my door” [Doc. No. 57-11, (36:11)]. But he was
told by the police that he could not do so. He repeated his question, and he was
16

again told by the police that he could not shut the door. At this point, Plaintiff was
unquestionably detained. Officer Lofton contends that this was a Terry stop.
In Terry v. Ohio, 392 U.S. 1, 30 (1968), the Supreme Court held that an officer
does not violate the Fourth Amendment by conducting a “brief, investigatory stop
when the officer has a reasonable, articulable suspicion that criminal activity is
afoot.” A Terry stop is a type of seizure under the Fourth Amendment because it
restrains the freedom of the detainee to walk away or otherwise remove himself from
the situation. Terry, 392 U.S. at 16. The standard of “reasonable suspicion” that is
required to justify a Terry stop is significantly more lenient than that of “probable
cause,” which is necessary to support a warrant. Illinois v. Wardlow, 528 U.S. 119,
123 (2000).
“But when it comes to the Fourth Amendment, the home is first among
equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). At the Amendment’s “very core”
stands “the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505,
511 (1961). Thus, there is a heightened showing required before law enforcement
can conduct a Terry stop of a suspect in his or her home.
In Moore v. Pederson, 806 F.3d 1036, 1044 (11th Cir. 2015), the Eleventh
Circuit held that law enforcement may not conduct a Terry stop inside a residence

17

absent exigent circumstances. Therefore, two critical issues in this case are: (1)
whether reasonable, articulable suspicion existed, and (2) whether exigent
circumstances existed at the time of Plaintiff’s Terry stop.
a.

Reasonable, Articulable Suspicion

Officer Lofton lists twelve “facts” in support of his reasonable, articulable
suspicion:
(1)

Antman was a known drug dealer under surveillance by the Barrow
County Sheriff’s Department;
(2) Antman left the Wall Road residence and drove a short distance to
Plaintiff’s residence;
(3) Antman visited Plaintiff for a few minutes;
(4) Antman was seen leaving quickly from Plaintiff’s residence with a bag
that contained methamphetamine;
(5) Antman lied about his reason for being at Plaintiff’s home;
(6) Plaintiff’s explanation for why Antman was at the residence was not
credible because: Antman was a known drug dealer, Deputy Norris
knew Antman sold a large amount of drugs (which made it unlikely that
he would want to work), and Plaintiff was not a business owner or
operating a business;
(7) there was no other personal connection between Antman and Plaintiff;
(8) Officer Lofton believed Plaintiff had some connection with drugs based
on Plaintiff’s DUI (less safe) arrest that occurred near a known drug
house on Price Street;
(9) Plaintiff’s residence was in an area known for drug trafficking or drug
sales;
(10) Plaintiff was nervous, annoyed, and uncooperative;
(11) Plaintiff did not show an expected level of interest in the police activity
outside of his home; and
(12) Plaintiff was not willing to give consent to search the property.

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[Doc. No. 57-1, pp. 10-11]. The Court notes that Plaintiff takes issue with some of
these facts and argues that Officer Lofton is incorrect. For example, Plaintiff argues
that Antman’s bag may not have contained methamphetamine because during the
vehicle search, the drugs were found outside of the bag. But for purposes of this
analysis, the Court will assume that these facts are true.
The Court will address generally the facts in support of Officer Lofton’s
reasonable, articulable suspicion that criminal activity was afoot. The first few facts
(one through four) relate to the presence of Antman in Plaintiff’s residence. Officer
Lofton articulates: (1) Antman was a known drug dealer; (2) Antman left a drug
house and went to Plaintiff’s residence, which was a short distance away; (3)
Antman was inside for a few minutes; and (4) Antman left quickly. Indeed, Officer
Lofton first believed that Antman was burglarizing the home [Doc. No. 63-7, p. 15;
Doc. No. 57-11, 24:10-15]. The law is clear that even prolonged and frequent
association with a drug dealer, without more, is insufficient to establish probable
cause to believe that a person is engaged in criminal activity. See generally Ybarra
v. Illinois, 444 U.S. 85 (1979) (even though there was probable cause for a search
warrant for contraband in a bar, there was no probable cause to search each customer
because “mere propinquity” to suspect premises or persons could not suffice alone).
There was no reasonable basis upon which law enforcement could conclude that

19

Plaintiff was engaged in criminal activity or that drugs were located in the residence
based on Antman’s presence for a short time in the residence.
The next couple of facts (five and six) relate to Antman and Plaintiff’s
explanations for why Antman was at Plaintiff’s residence. The Court notes initially
that Antman and Plaintiff had no obligation to tell the truth in responding to the
officers’ questions. Also, Antman and Plaintiff may have conveyed their subjective
beliefs about the interaction and not necessarily lied. These facts would be more
compelling if the two had lied about Antman being in the residence at all–a more
objective fact that could have been testified to by Deputy Geiman.
As to the next fact (seven), any individual who is a stranger to both Antman
and Plaintiff has no factual basis to conclude that they were strangers to one another.
As to the next fact (eight), the Court notes that apparently this arrest did not
lead to a criminal conviction, although the timeline of the arrest and dismissal of the
DUI charge is unclear from the record. While this fact could certainly be reasonably
considered by Officer Lofton, his arrest history alone is insufficient to establish
reasonable, articulable suspicion. Additionally, a DUI (less safe) arrest does not
support a reasonable, articulable suspicion that Plaintiff is a drug purchaser,
especially when Plaintiff contends that Officer Lofton knew that the drugs Plaintiff

20

was taking at the time of his DUI arrest (prescription medications) are different from
those that Antman was selling.
As to the next fact (ninth), the fact that Plaintiff’s residence may be located in
an area known for drug trafficking or drug sales is not helpful for Officer Lofton.
This may be compelling for reasonable, articulable suspicion for an individual who
is exhibiting characteristics of drug dealing in an area particularly known for such.
Here, in contrast, Plaintiff was inside his residence, and any such observations about
the surrounding neighborhood are inappropriately made.
Finally, as to the remaining facts (ten through twelve), these are focused on
Plaintiff’s demeanor and failure to consent to a search of the home. As to his
“nervous, annoyed, and uncooperative” demeanor, the audio recording does not
necessarily support Officer Lofton’s characterization of Plaintiff’s behavior. In fact,
until Plaintiff turned to retreat further into the residence (after the Terry stop had
already occurred), Plaintiff appeared cooperative with law enforcement, short of
consenting to a search of his residence. Given that many people would be nervous,
annoyed, or uncooperative during such a police encounter, Officer Lofton would
need to better articulate how Plaintiff was exceptionally nervous, annoyed, or
uncooperative and why that mattered under these circumstances.

21

Finally, as to his failure to consent to a search of the residence, it is clearly
established law that an individual’s failure to consent to a search cannot be used to
establish the reasonable, articulable suspicion for a Terry stop or the probable cause
for a search warrant. See United States v. Boyce, 351 F.3d 1102, 1110 (11th Cir.
2003) (“police cannot base their decision to prolong a traffic stop on the detainee’s
refusal to consent to a search”); United States v. Massenburg, 654 F.3d 480, 491 (4th
Cir. 2011) (if suspect’s nervous behavior and repeated refusal to consent to a
voluntary pat-down “sufficed to create reasonable suspicion, then Terry’s reasonable
suspicion requirement would become meaningless); Graves v. City of Coeur
D’Alene, 339 F.3d 828, 842 (9th Cir. 2002) (defendant’s refusal to consent to search
“cannot correctly be a part of our probable cause determination”). Officer Lofton’s
argument otherwise reveals a fundamental misunderstanding of the Fourth
Amendment.
Taken all together and construing the facts favorably to Officer Lofton, it is
a very close question as to whether a reasonable officer would believe that he had
reasonable, articulable suspicion to detain Plaintiff. The Court finds that genuine
issues of material fact remain as to this issue. Even assuming Officer Lofton had
reasonable, articulable suspicion as required by Terry, at the time that he detained

22

Plaintiff, there were no exigent circumstances that would have allowed a Terry stop
in Plaintiff’s residence.
b.

Exigent Circumstances

The Fourth Amendment protects “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const., amend. IV. “The Fourth Amendment prohibits government searches
and seizures involving private residences absent a warrant supported by probable
cause.” United States v. Seidel, 794 F. Supp. 1098, 1101 (S.D. Fla. 1992). “It is a
‘basic principle of Fourth Amendment law’ that searches and seizures inside a home
without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980). This presumption may be overcome in some circumstances
because the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Accordingly, the warrant
requirement is subject to certain reasonable exceptions. Id.
One well-recognized exception applies when certain exigencies of the
situation “make the needs of law enforcement so compelling that [a] warrantless
search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona,
437 U.S. 385, 394 (1978). “[T]he Fourth Amendment has drawn a firm line at the
entrance to the house.

Absent exigent circumstances, that threshold may not

23

reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590
(1980).
Examples of exigent circumstances include, but are not limited to, hot pursuit
of a suspected felon, the possibility that evidence may be removed or destroyed, and
danger to the lives of officers or others. United States v. Mikell, 102 F.3d 470, 476
(11th Cir. 1996) (evidence); United States v. Santana, 427 U.S. 38 (1976) (hot
pursuit); United States v. Hill, 430 F.3d 939 (8th Cir. 2005) (officer safety). In these
limited situations, the need for effective law enforcement trumps the right of privacy
and an individual’s Fourth Amendment concerns. However, exigent circumstances
do not meet Fourth Amendment standards if the government deliberately creates
them. Kentucky v. King, 563 U.S. 452, 469 (2011).
The Court has found that Plaintiff was detained, at a minimum, at the time
when he was told by Officer Lofton and Deputy Norris that he could not shut his
door [Doc. No. 57-1, 36:11]. At this time, Officer Lofton and Deputy Norris
admittedly had no officer safety concerns. Instead, the only exigency could be the
need to prevent destruction of evidence. To determine whether a police officer faced
an emergency that justified acting without a warrant, the Court must look to the
totality of the circumstances and consider whether a reasonable officer would

24

believe that evidence of a crime is in danger of imminent destruction. Missouri v.
McNeely, 569 U.S. 141, 149 (2013); Cupp v. Murphy, 412 U.S. 291, 294-95 (1973).
The Court has considered the totality of the circumstances and finds these
facts particularly compelling:
(1)

(2)

(3)

Law enforcement was outside Plaintiff’s residence for over twenty
minutes before they approached the door. Law enforcement knew for
much of that time that Antman had left Plaintiff’s residence with a bag
that may have contained a substantial amount of methamphetamine.
Rather than urgently acting and immediately approaching Plaintiff’s
residence, a video recording portrays that they stood near Antman’s
vehicle, laughing and chatting about his arrest.
Officer Lofton’s first thought was that Antman had probably
burglarized the residence [Doc. No. 63-7, p. 15; Doc. No. 57-11, 24:1015].
When Trooper Smith finally did walk to the door, he spoke with another
occupant of the residence, Torry Craig, whom he allowed to leave the
doorway to walk into the home and get Plaintiff. Ms. Craig could have
easily destroyed evidence at that time.

Under these circumstances, law enforcement demonstrated by their own actions that
there was no “urgent need for immediate action” that would constitute an exigent
circumstance. McClish v. Nugent, 483 F.3d 1231, 1240 (11th Cir. 2007). Also,
significantly, as discussed above, law enforcement would had to have had a
reasonable belief that drugs were contained within the residence and that the drugs
were going to destroyed by Plaintiff. No such reasonable belief existed here. No
exigency existed, and no reasonable officer could believe that it did.

25

As a result, the Court finds that under Moore, Officer Lofton violated
Plaintiff’s clearly established constitutional rights by detaining him (even before law
enforcement’s entry into the home) in violation of the Fourth Amendment. This
detention was particularly egregious because Plaintiff attempted to terminate the
police encounter but was told that he could not do so. This behavior strikes at the
heart of rights protected by the Fourth Amendment.
2.

Entry into Residence (Count One)

After Deputy Norris ordered Plaintiff out of the residence, Plaintiff did not
comply with the order. At that time, Officer Lofton contends that he was allowed to
enter the home without a warrant due to exigent circumstances, specifically the
imminent destruction of drugs that were brought to the residence by Antman.
Specifically, Officer Lofton argues that he was entitled to secure the residence to
prevent the destruction or removal of evidence pending the issuance of a search
warrant.
Officer Lofton also appears to argue that he was attempting to secure the home
when he ordered Plaintiff to step outside. In Illinois v. McArthur, 531 U.S. 326, 331
(2001), the Supreme Court held that there was no constitutional violation when an
officer secured the premises by detaining an occupant outside of his home or by
imposing restrictions, such as requiring the occupant to be accompanied by a police

26

officer while inside the home, so that another officer could obtain a search warrant.
In determining if such a seizure is reasonable, courts should balance the occupant’s
privacy with law enforcement concerns. Id. The factors to weigh are: (1) probable
cause to believe the home contained evidence of a crime and contraband; (2) a good
reason to fear, unless restrained, the contraband would be destroyed; (3) the
restriction must be reasonable to balance the law enforcement needs with the
demands of personal privacy; and (4) the restriction must be limited in time. Id.
As discussed above, law enforcement had no reasonable belief that drugs
were contained within the residence and had no reasonable belief that evidence was
in danger of imminent destruction. Since they certainly had no reasonable belief,
they clearly had no probable cause. No exigency based on drug evidence destruction
existed, and no reasonable officer could believe that it did.
Officer Lofton also appears to assert that he was concerned for his safety and
the safety for other law enforcement officers on the scene. Officer safety concerns
may certainly create exigent circumstances that justify entry without a warrant. But
the officer’s concern must be reasonable, and Officer Lofton’s concern was not
reasonable here. As is evident from the audio recording of the incident, Plaintiff
appeared to be cooperative during his interaction with the police. When he moved
away from the door (whether he ran away as Officer Lofton states or simply walked),

27

he had done nothing that would indicate he was a safety risk to the officers. To the
contrary, he indicated that he was entering the residence to call his sister, which
Defendants had asked him to do earlier. Significantly, there was no evidence that
Plaintiff’s residence contained a firearm. Plaintiff made no threatening remarks to
law enforcement. Instead, Plaintiff merely attempted to retreat into his residence
and terminate the police encounter. There was no officer safety exigency here.
The Court also notes that the nature of the risk is an important part of the
calculus in determining whether a law enforcement officer may enter without a
warrant. See United States v. Shannon, 21 F.3d 77, 81-82 (5th Cir. 1994) (entry of
motel room to seize gun arrestee said was under mattress was proper, as “it would
be reasonable for the officers to believe that there was a possibility of danger to
themselves or other motel guests if an unknown suspect who might still be inside the
room were to gain access to the gun”); Elkins v. McKenzie, 865 So.2d 1065, 1087
(Miss. 2003) (where “Eddie had a loaded gun pointed at officers and refused to lower
the gun when repeatedly asked by the officers” and then backed into the house,
causing officers to believe the danger was increasing because Eddie could fire from
any of the many windows, exigent circumstances existed); United States v. Clarke,
564 F.3d 949, 959 (8th Cir. 2009) (where there was probable cause to believe meth
production was ongoing, warrantless entry justified because “there was potential

28

threat to the safety of the officers, anybody inside the house, and anyone in the
surrounding area”); State v. Smith, 199 P.3d 386, 389-90 (Wash. 2009) (where
police found stolen tanker “pressure filled with 1,000 gallons of an extremely
dangerous chemical” parked by house and then saw a rifle within house, but after
two occupants exited the rifle was no longer visible, entry justified because person
with missing gun might shoot at the officers or the tanker, “causing a grave health
risk for all those in the vicinity”); Edwards v. United States, 619 A.2d 33, 36 (D.C.
App. 1993) (where defendant had assaulted another with rifle and then seen by police
to enter apartment building with rifle, but was later stopped therein without a
weapon, police could make immediate warrantless entry into apartment, as “police
knew that there was an unattended rifle, which had been used in a recent crime, that
could be found by someone else in the building, including a child, and used again to
the detriment of the officers or the community”). Here, in contrast, there was nothing
to indicate that there was a substantial risk of harm to the officer or the public at
large.
The Court also notes that even if such an officer safety exigency existed,
Officer Lofton clearly created the exigency through his own conduct. Such policecreated exigencies are not true exigencies. In considering whether Officer Lofton
created the exigency, the Court must consider if his conduct prior to the entry was

29

entirely lawful, meaning that he “did not violate the Fourth Amendment or threaten
to do so” prior to the exigency. Kentucky v. King, 563 U.S. 452, 462 (2011). As
discussed above, Officer Lofton illegally detained Plaintiff even after Plaintiff
attempted twice to terminate the police encounter by closing his door. Officer
Lofton also attempted to illegally detain Plaintiff by ordering him to step outside of
his residence. Under these circumstances, the Court is confident in finding that
Officer Lofton did in fact violate the Fourth Amendment, and thereby created the
officer safety exigency that he claims justified his entry into the residence.
The Court finds that Officer Lofton violated Plaintiff’s clearly established
constitutional rights by illegally entering his residence, so Officer Lofton is not
entitled to qualified immunity. For that reason, Plaintiff’s Motion for Partial
Summary Judgment [Doc. No. 63] is GRANTED as to Officer Lofton, and Officer
Lofton’s Motion for Summary Judgment [Doc. No. 57] is DENIED as to Count One.
3.

Fruit of the Poisonous Tree

Before turning to the merits of Plaintiff’s remaining claims, the Court will
address Plaintiff’s argument that the “fruit of the poisonous tree” doctrine applies in
this case. If the doctrine does apply, according to Plaintiff, because Officer Lofton’s
entry into the residence was illegal, all later acts were also illegal.

30

The fruit of the poisonous tree doctrine is an evidentiary rule that operates in
the context of criminal procedure. See Wong Sun v. United States, 371 U.S. 471,
484-88 (1963); Costello v. United States, 365 U.S. 265, 280 (1961) (“the ‘fruit of
the poisonous tree’ doctrine excludes evidence obtained from or as a consequence
of lawless official acts.”). The doctrine is an extension of the long-recognized
exclusionary rule and as such has generally been held “to apply only in criminal
trials.” See Segura v. United States, 468 U.S. 796, 804 (1984); Pennsylvania Bd. of
Probation & Parole v. Scott, 524 U.S. 357 (1998). The Court finds no case, and
Plaintiff has cited no case, in which the doctrine has been successfully invoked to
support a § 1983 claim.
The fruit of the poisonous tree doctrine is calculated to deter future
unlawful police conduct and protect liberty by creating an incentive—
avoidance of the suppression of illegally seized evidence—for state
actors to respect the constitutional rights of suspects. Like the
exclusionary rule, the fruit of the poisonous tree doctrine is a judicially
created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved.
As with any remedial device, the application of the [exclusionary] rule
has been restricted to those areas where its remedial objectives are
thought most efficaciously served. If . . . the exclusionary rule does not
result in appreciable deterrence, then, clearly, its use . . . is unwarranted.
The Supreme Court has refused for that reason to extend the
exclusionary rule to non-criminal contexts, including civil tax
proceedings, habeas proceedings, grand jury proceedings, INS
deportation proceedings, and parole revocation proceedings. . . .

31

Civil actions brought under § 1983 are analogous to state common law
tort actions, serving primarily the tort objective of compensation.
A § 1983 action, like its state tort analogs, employs the principle of
proximate causation.
The fruit of the poisonous tree doctrine, however, disregards traditional
causation analysis to serve different objectives. To extend the doctrine
to § 1983 actions would impermissibly recast the relevant proximate
cause inquiry to one of taint and attenuation.
Townes v. City of New York, 176 F.3d 138, 145-46 (2d Cir. 1999) (quotations and
citations omitted).
For these reasons, the Court finds that the fruit of the poisonous tree doctrine
cannot be used to establish liability for Plaintiff’s other claims against Officer
Lofton. Instead, Plaintiff must still establish Officer Lofton’s liability for his
subsequent acts. The Court acknowledges that the fact that Officer Lofton was
illegally present within the residence and the fact that Officer Lofton was giving
Plaintiff illegal commands are relevant and important to the context of later decisions
made by both Plaintiff and Defendants in this case, but the Court will address these
claims independently.
This is consistent with authority from other Circuits. See, e.g., Townes, 176
F.3d at 145-46 (2d Cir. 1999) (“The fruit of the poisonous tree doctrine is not
available to elongate the chain of causation” in a § 1983 lawsuit). Even if the entry
was unlawful, under basic principles of tort law, law enforcement officers “would

32

be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.”
Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995). They would not, however,
“necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense
by the illegal entry.” Id.
This is also consistent with the Eleventh Circuit opinion in Black v.
Wigington, 811 F.3d 1259, 1268 (11th Cir. 2016), in which the Court held that the
exclusionary rule does not apply in a civil suit against police officers. In Black, the
Court was concerned with suppression of evidence of a crime would result in “an
overly truncated version of the evidence.” Id. Thus, the Court held that police
officers could “rely on illegally obtained evidence to defend themselves against
other types of claims,” including a § 1983 action. Id. Clearly, the Court of Appeals
emphasizes the distinction between application of the doctrine in the criminal and
civil contexts.
4.

Arrest (Count Two)

The Court will now address Plaintiff’s false arrest claim. Officer Lofton sets
forth three offenses for which he claims there was probable cause to arrest Plaintiff:
(1) disorderly conduct, in violation of O.C.G.A. § 16-11-39; (2) obstruction, in
violation of O.C.G.A. § 16-10-24; and (3) simple battery, in violation of O.C.G.A.
§ 16-5-23

33

“There is no question that an arrest without probable cause to believe a crime
has been committed violates the Fourth Amendment.” Madiwale v. Savaiko, 117
F.3d 1321, 1324 (11th Cir. 1997). Qualified immunity, however, will protect Officer
Lofton as to Plaintiff’s false arrest claim if arguable probable cause existed for him
to arrest Plaintiff. Storck v. City of Coral Springs, 354 F.3d 1307, 1315 (11th Cir.
2003). “ʻArguable probable cause exists when an officer reasonably could have
believed that probable cause existed, in light of the information the officer
possessed.’” Id. (quoting Durruthy v. Pastor, 351 F.3d 1080, 1092 (11th Cir. 1997)
(internal quotation marks omitted)).

“ʻEven law enforcement officials who

reasonably but mistakenly conclude that probable cause is present are entitled to
immunity.’” Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003) (quoting Hunter
v. Bryant, 502 U.S. 224, 227 (1991)). Moreover, qualified immunity applies so long
as an officer “ʻhas arguable probable cause to arrest for any offense.’” Merenda v.
Tabor, 506 Fed. App’x 862, 865 (11th Cir. 2003) (per curiam) (quoting Grider v.
City of Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010)). Thus, “ʻthe validity of
an arrest does not turn on the offense announced by the officer at the time of the
arrest.’” Id. (quoting Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty., 956 F.2d
1112, 1119, n.4 (11th Cir. 1992)).

34

When determining whether probable cause exists to support an arrest, the
Court considers whether the arresting officer’s actions were “objectively reasonable
based on the totality of the circumstances.” Kingsland v. City of Miami, 382 F.3d
1220, 1226 (11th Cir. 2004). “This standard is met when the facts and circumstances
within the officer’s knowledge, of which he or she has reasonably trustworthy
information, would cause a prudent person to believe, under the circumstances
shown, that the person has committed, is committing, or is about to commit an
offense.” Id. (internal quotation marks and citation omitted). “Although probable
cause requires more than suspicion, it does not require convincing proof, and need
not reach the [same] standard of conclusiveness and probability as the facts
necessary to support a conviction.” Wood, 323 F.3d at 878 (internal quotation marks
and citation omitted). The officer’s subjective intent is immaterial, and the Court
instead must consider the facts objectively. Williams v. City of Homestead, Fla.,
206 Fed. App’x 886, 888 (11th Cir. 2006) (per curiam).
“Whether an arresting officer possesses arguable probable cause depends on
the elements of the alleged offense and the facts of the case.” Turner v. Jones, 415
Fed. App’x 196, 199 (11th Cir. 2011) (per curiam). The Court will address the
elements of each offense and discuss arguable cause for each offense below.

35

i.

Disorderly Conduct

O.C.G.A. § 16-11-39 states that “[a] person commits the offense of disorderly
conduct when such person commits any of the following: (1) acts in a violent or
tumultuous manner toward another person whereby such person is placed in
reasonable fear of the safety of such person’s life, limb, or health.” Officer Lofton
argues that “Plaintiff’s spontaneous flight caused him to be concerned for his safety”
after “Plaintiff did not convey his intentions to the officers” [Doc. No. 57-1, p. 15].
Construing the facts in the light most favorable to Plaintiff, Plaintiff did not
“flee” from the doorway.

Instead, Plaintiff states that he walked away after

conveying his intentions. The audio recording supports Plaintiff’s testimony that he
stated that he was going to call his sister [Doc. No. 57-11, 37:39]. Under these
circumstances, the Court finds that Officer Lofton did not have a reasonable fear for
his safety and no arguable probable cause existed for Plaintiff’s arrest for disorderly
conduct. Officer Lofton’s Motion for Summary Judgment [Doc. No. 57] is DENIED
as to this claim.
ii.

Obstruction

Pursuant to O.C.G.A. § 16-10-24, “a person who knowingly and willfully
obstructs or hinders any law enforcement officer . . . in the lawful discharge of his
or her duties shall be guilty of a misdemeanor.” Officer Lofton contends that

36

Plaintiff obstructed his duties by “fleeing.” As discussed above, Plaintiff states that
he walked away after conveying his intentions. The audio recording supports
Plaintiff’s testimony that he stated that he was going to call his sister [Doc. No. 5711, 37:39]. This was, in fact, what Officer Lofton asked him to do.
Additionally, as discussed above, Officer Lofton was not in “lawful discharge
of his . . . duties.” His command to step outside was unlawful. A reasonable officer
would have known that he did not have the authority to detain Plaintiff in his
residence in these circumstances, neither under Terry nor McArthur. No probable
cause existed for Plaintiff’s arrest for obstruction, and Officer Lofton’s Motion for
Summary Judgment [Doc. No. 57] is DENIED as to this claim.
iii.

Simple Battery

Finally, a simple battery is committed when one “intentionally makes physical
contact of an insulting or provoking nature of the person of another.” O.C.G.A. §
16-5-23. Officer Lofton contends that Plaintiff shoved him between the time when
Officer Lofton entered the residence and when Plaintiff was tased/subdued. In
response, Plaintiff argues that he did not touch anyone. A reasonable jury could
accept Plaintiff’s version of the facts, so at a minimum, a genuine issue of material
fact exists as to whether such physical contact ever occurred.

37

The Court also notes that under Georgia law, Plaintiff was entitled to resist an
unlawful arrest. See Mullis v. State, 27 S.E.2d 91, 98 (Ga. 1943) (“Where an arrest
is not lawful, the person sought to be so arrested, contrary to his right if the arrest
had been lawful, has the right to resist, and in doing so has a right to resist force with
force proportionate to that being used in unlawfully detaining him.”); Traylor v.
State, 193 S.E.2d 876, 878 (Ga. Ct. App. 1972) (“The defendant had the right to
leave, and to ignore or defy the arrest, if said arrest was illegal.”); Collins v. State,
111 S.E. 733, 736 (Ga. 1922) (explaining that citizens are “authorized to use such
force as was necessary to resist the illegal search and arrest, and a homicide
committed in defending against the illegal arrest and search would be murder,
manslaughter, or justifiable homicide, according to whether there was malice,
unnecessary force, or only such force as was necessary in resisting the arrest”). Even
if such a shove took place, Officer Lofton was attempting to arrest Plaintiff for
disorderly conduct and for obstruction. As discussed above, such arrests would have
been made without arguable probable cause and were unlawful. Under these
circumstances, Plaintiff may have proportionally resisted arrest by shoving Officer
Lofton.
The Court is troubled by the circumstances of Plaintiff’s arrest for assault.
Although the fruit of the poisonous tree doctrine does not apply in this context,

38

Officer Lofton would not have been in the position to be shoved but for his unlawful
entry into Plaintiff’s residence and for his arrest of Plaintiff for other unfounded
charges. In this circumstance, it seems particularly unfair to arrest Plaintiff for
conduct that would not have occurred but for the unlawful conduct of law
enforcement.
Officer Lofton’s Motion for Summary Judgment [Doc. No. 57] is DENIED
as to this claim.
5.

Force (Count Four)

Plaintiff also claims that Officer Lofton violated his Fourth Amendment right
to be free from the use of force by repeatedly tasing him. Officer Lofton contends
that his use of force was justified because Plaintiff attempted to flee, Officer Lofton
was not familiar with his surroundings, and Plaintiff did not comply with Officer
Lofton’s commands.
“The Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the plain right to be free from the use of excessive force in the course
of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham
v. Connor, 490 U.S. 386, 394-95 (1989)). The reasonableness inquiry is an objective
one: “the question is whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their

39

underlying intent or motivation.” Graham, 490 U.S. at 397 (citations omitted). In
other words, “[a]n officer’s evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force constitutional.”

Id.

(citations omitted).
A court may consider a number of factors when determining whether the force
applied was “reasonable” under the circumstances, including: (1) the “severity, or
lack of severity, of the alleged crime in issue,” id. at 396; (2) “whether the person
against whom the force was used posed an immediate threat to the safety of the
police or others,” id.; (3) “the need for the application of force,” Jackson v. Sauls,
206 F.3d 1156, 1170 n.18 (11th Cir. 2000); (4) “the relationship between the need
and the amount of force used,” id.; (5) “the extent of the injury inflicted,” id.; (6)
“whether the force was applied in good faith or maliciously and sadistically,” id.; (7)
“the possibility that the persons subject to the police action are themselves violent
or dangerous,” id.; (8) “the possibility that the suspect may be armed,” id.; (9) “the
number of persons with whom the police officers must contend at one time,” id.; and
(10) “whether the suspect was resisting or fleeing.” Id.
The reasonableness of the force applied also is measured as of the precise
moment it is administered; events that occurred before that moment, though perhaps

40

giving factual context to the use of force, are not probative of the reasonableness of
the decision to use force. See Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.
1991). Additionally, “[u]se of the force must be judged on a case-by-case basis
‘from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir.
1993) (quoting Graham, 490 U.S. at 396). “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 396-97.
The audio recording of the encounter from Officer Lofton’s dash camera
captured the following dialogue:
NORRIS:

Come out here and have a seat.

LOFTON:

Yeah, come out here. If you don’t come out here – uh, uh,
uh, uh, uh, come here!

OFFICER:

10-10.

(First taser deployment at 37:50.2)

2

The Court notes that the taser deployment log is not attached as an exhibit, but it seems
that at least two of its uses (first with the prongs and then later in drive stun mode) are
audible in the recording. Defendants have not provided the taser deployment log to
41

PLAINTIFF:

God damnit. Oh, God damnit.

LOFTON:

Get on the ground.

(Plaintiff screams.)
LOFTON:

Get on the fucking ground.

(Plaintiff screams.)
WIFE:

You’re hurting him!

OFFICER:

Give me your hands! Hands! Hands!

NORRIS:

Drive stun him. Drive stun him.

(Another tase at 38:04.)
PLAINTIFF:

Please don’t do it again.

OFFICER:

Put your hands behind your back, or we’ll do it again.

GEIMAN:

Don’t fucking move.

WIFE:

He didn’t even run away.

LOFTON:

Yes, he did. Now shut up. You didn’t see shit. Now shut
up.

OFFICER:

You stay your ass right there, you got it? Are we clear?
You sure? Thank you.

PLAINTIFF:

Aw damn. That hurt. They got me three or four times.

Plaintiff in discovery, although Plaintiff appears to have requested it. This production
should be made as soon as possible, but within fourteen days.
42

OFFICER:

Yeah, you weren’t listening.

[Doc. No. 57-11, 37:40 to 39:40].
As an initial matter, the Court notes that if Plaintiff’s arrest was unlawful, the
force used by Officer Lofton was inherently excessive. See Bashir v. Rockdale City,
445 F.3d 1323, 1332 (11th Cir. 2006). Because genuine issues of material fact
remain as to the assault arrest, the Court cannot find as a matter of law that the force
was inherently excessive.
Officer Lofton relies upon three hotly contested facts to justify his use of force
against Plaintiff: (1) Plaintiff shoved him; (2) Plaintiff squared up to fight him; and
(3) once on the ground, Plaintiff did not comply with law enforcement commands
but instead fought with law enforcement. Plaintiff contests this version of events,
and a reasonable jury could find that Plaintiff did nothing that would justify any use
of a taser to ensure compliance with his potentially unlawful arrest. Officer Lofton’s
Motion for Summary Judgment [Doc. No. 57] is DENIED as to this claim.
6.

Malicious Prosecution (Count Three)

Plaintiff also asserts a malicious prosecution claim against Officer Lofton.
Officer Lofton argues that Plaintiff cannot prove the essential elements of this claim
because he was not “seized” pursuant to legal process and because the prosecution
did not terminate in his favor.

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Malicious prosecution is a violation of the Fourth Amendment and is a viable
constitutional tort under § 1983. See Kingsland, 382 F.3d at 1234. To establish such
a claim, a plaintiff must prove: (1) the elements of the common law tort of malicious
prosecution, and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures. Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). It is a
two-part showing, and to avoid summary judgment, a plaintiff “bears the burden of
proving that she was seized in relation to the prosecution, in violation of [his or] her
civil rights.” Kingsland, 382 F.3d at 1235. To the constituent elements of the
common law tort of malicious prosecution, the Court must look to both federal and
state law and determine how those elements have historically developed. Id. To
prove such a common law claim under federal law and Georgia law, a plaintiff must
establish the following: “(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.”
Kjellsen v. Mills, 517 F.3d 1232, 1237 (11th Cir. 2008) (quoting Wood, 323 F.3d at
881-82).
The Court will first address whether Plaintiff was “seized” within the meaning
of the Fourth Amendment. The parties’ analysis of this requirement was superficial
at best. Plaintiff argues that he was seized within the meaning of the Fourth

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Amendment when Officer Lofton issued a series of accusations and summonses that
initiated legal proceedings against him. According to Plaintiff, the “seizure” was his
arrest which was conducted pursuant to these charges.
But to establish a Section 1983 claim for malicious prosecution,
the deprivation of liberty—the seizure—must have been effected
“pursuant to legal process.” . . . Ordinarily, this “legal process” will be
either in the form of a warrant, in which case the arrest itself may
constitute the seizure, or a subsequent arraignment, in which case any
post-arraignment deprivations of liberty (such as being bound-over for
trial) might satisfy this constitutional requirement.
Love v. Oliver, 450 F.Supp.2d 1336, 1340 (11 Cir. 2006) (quoting Singer v. Fulton
County Sheriff, 63 F.3d 110, 116-17 (2d Cir. 1995)).
In the case of a warrantless arrest, the judicial proceeding does not
begin until the party is arraigned or indicted. Thus, the plaintiff’s arrest
cannot serve as the predicate deprivation of liberty because it occurred
prior to the time of arraignment and was not one that arose from
malicious prosecution as opposed to false arrest.
Kingsland, 382 F.3d at 1235 (quotation and citation omitted); see also Mejia v. City
of New York, 119 F.Supp.2d 232, 254 n. 26 (E.D.N.Y. 2000) (holding “plaintiff’s
arrest cannot serve as the predicate deprivation of liberty because it occurred prior
to his arraignment and without a warrant, and therefore was not pursuant to legal
process, i.e., not one that arose from malicious prosecution as opposed to false
arrest”) (quotation and citation omitted); Nieves v. McSweeney, 241 F.3d 46, 54 (1st
Cir. 2001) (“The tort of malicious prosecution permits damages for a deprivation of
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liberty—a seizure—pursuant to legal process. Generally, the offending legal process
comes either in the form of an arrest warrant (in which case the arrest would
constitute the seizure) or a subsequent charging document (in which case the sum of
post-arraignment deprivations would comprise the seizure).”) (citations omitted).
Additionally, the Eleventh Circuit has held that normal conditions of pre-trial release
do not constitute a continuing seizure barring some “significant deprivation of
liberty.” Kingsland, 382 F.3d at 1236.
The record is unclear as to the exact circumstances of Plaintiff’s arraignment
and subsequent release on bond. However, Officer Lofton represents to the Court
that Plaintiff was released on bond, and Plaintiff does not contest this representation.
While Plaintiff may have suffered anxiety and inconvenience, as did the plaintiff in
Kingsland, he has not shown that the conditions of his pretrial release (which are not
in the record) constituted a significant deprivation of his liberty. As such, the Court
finds that Plaintiff was not “seized” within the meaning of the Fourth Amendment,
and his malicious prosecution claim fails as a matter of law. Officer Lofton’s Motion
for Summary Judgment [Doc. No. 57] is GRANTED as to Count Three.
7.

State Law Claims (Count Five)

Plaintiff asserts four state law claims against Officer Lofton: (1) false
imprisonment pursuant to O.C.G.A. § 51-7-20; (2) malicious prosecution pursuant

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to O.C.G.A. § 51-7-40; (3) assault pursuant to O.C.G.A. § 51-1-13; and (4) battery
pursuant to O.C.G.A. § 51-1-14. Officer Lofton argues that he did not engage in
tortious conduct and that he is entitled to official immunity from these claims. The
Court will address the basis for the state law claims and then address official
immunity.
i.

False Imprisonment

Plaintiff asserts a false imprisonment claim against Officer Lofton under
Georgia law. Under Georgia law, false imprisonment is defined as “the unlawful
detention of the person of another, for any length of time, whereby such person is
deprived of his personal liberty.” O.C.G.A. § 51-7-20. “The essential elements of
the claim are the arrest or the detention and the unlawfulness thereof.” Kline v.
KDB, Inc., 673 S.E.2d 516, 518 (Ga. Ct. App. 2009). An arrest is “the taking,
seizing, or the detaining of the person of another...by any act indicating an intention
to take such person into custody” and “which subjects such person to the actual
control and will of the person making the arrest.” Conoly v. Imperial Tobacco Co.,
12 S.E.2d 398 (Ga. Ct. App. 1940).
In the context of warrantless arrests, an officer will be guilty of this tort unless
he can justify the arrest under one of the exceptions enumerated in O.C.G.A. § 174-20. Collins v. Sadlo, 306 S.E.2d 390, 391 (Ga. Ct. App. 1983) (emphasis omitted)

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(citations and internal quotations omitted). Based on the exceptions in O.C.G.A. §
17-4-20, “it is readily apparent that all...exceptions to the warrant requirement...in
essence presuppose the existence of sufficient probable cause.” Id. Thus,“to avoid
liability for false imprisonment it must be shown not only that arrest was valid but
also that the arresting officer had probable cause.” Amason v. Kroger Co., 420
S.E.2d 314, 316 (Ga. Ct. App. 1992).
As discussed above, viewing the evidence in the light most favorable to
Plaintiff, there is a genuine issue of material fact as to whether Plaintiff was
unlawfully detained.
ii.

Malicious Prosecution

Plaintiff asserts a malicious prosecution claim against Officer Lofton under
Georgia law. The elements of a malicious prosecution claim include: (1) prosecution
for a criminal offense; (2) the prosecution instigated under a valid warrant,
accusation, or summons; (3) termination of the prosecution in favor of the plaintiff;
(4) malice; (5) want of probable cause; and (6) damage to the plaintiff. O.C.G.A. §
51-7-40; Sizemore Security Int’l v. Lee, 287 S.E.2d 782, 783 (Ga. Ct. App. 1982).
As discussed above, genuine issues of material fact remain that preclude summary
judgment as to probable cause for the assault claim. There is also a genuine material
fact as to malice.

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iii.

Assault and Battery

A simple battery is committed when one “intentionally makes physical
contact of an insulting or provoking nature of the person of another.” O.C.G.A. §
16-5-23. A simple assault is committed when one “(1) [a]ttempts to commit a violent
injury to the person of another; or (2) [c]ommits an act which places another in
reasonable apprehension of immediately receiving a violent injury.” O.C.G.A. § 165-20. As discussed above, genuine issues of material fact remain that preclude
summary judgment. If Officer Lofton had no legal basis to use force to effectuate
his arrest of Plaintiff, his conduct towards Plaintiff could constitute assault and
battery under Georgia law.
iv.

Official Immunity

Even if Officer Lofton did engage in tortious conduct, he may still be entitled
to official immunity under Georgia law. The Georgia Constitution provides, in
relevant part, that State officers and employees “may be liable for injuries and
damages if they act with actual malice or with actual intent to cause injury in the
performance of their official functions.” Ga. Const., art. I, § II, ¶ IX(d). Thus, “[a]
suit against a public officer acting in his or her official capacity will be barred by
official immunity unless the public officer (1) negligently performed a ministerial
duty, or (2) acted with actual malice or an actual intent to cause injury while

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performing a discretionary duty.” Tant v. Purdue, 629 S.E.2d 551, 553 (Ga. Ct. App.
2006) (quoting Wanless v. Tatum, 536 S.E.2d 308, 309 (Ga. Ct. App. 2000)).
“In the context of official immunity, ‘actual malice’ means a deliberate intent
to do wrong.” Reed v. DeKalb Cnty., 589 S.E.2d 584, 587 (Ga. Ct. App. 2003)
(Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996)). Proof of ill will, standing
alone, is insufficient to establish actual malice. Adams v. Hazelwood, 520 S.E.2d
896, 898 (Ga. 1999). Instead, “in the context of official immunity, actual malice
means a deliberate intention to do a wrongful act.”

Id.

“Such act may be

accomplished with or without ill will and whether or not injury was intended.” Id.
The parties appear to agree that Officer Lofton was performing discretionary
duties during his encounter with Plaintiff. Thus, the Court must consider whether
he acted with actual malice or an intent to cause injury. Plaintiff has the burden to
establish actual malice, and points to the following record evidence in support of his
claims:
• Officer Lofton testified that he did not have probable cause to arrest Plaintiff
at the time but entered the house regardless.
• Officer Lofton falsely accused Plaintiff of being a drug dealer without any
reasonable basis.
• Officer Lofton arrested Plaintiff without an arguable basis for the second time
within a year.
• Officer Lofton tasered Plaintiff in the penis with the prongs from a short
distance. Officer Lofton also tasered Plaintiff in his upper thigh in drive stun

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mode. A reasonable jury could find that Officer Lofton targeted Plaintiff’s
groin area.
• Officer Lofton made up the fact that Plaintiff pushed or shoved him.
• Officer Lofton made up the fact that Plaintiff resisted arrest.
• Officer Lofton charged Plaintiff with disorderly conduct even though there
was no basis for that charge.
Officer Lofton, in response, insists that Plaintiff’s reasons are inadmissible,
misleading, or altogether false.
The Court finds that genuine issues of material fact exist that preclude a grant
of summary judgment in favor of Officer Lofton.

Some or all of Plaintiff’s

contentions, if true, could establish actual malice that would justify a denial of
official immunity. Accordingly, Officer Lofton’s Motion for Summary Judgment
[Doc. No. 57] is DENIED as to Count Five.
C.

Defendant Deputy Chad Norris

Deputy Norris has moved for summary judgment and asserts qualified
immunity [Doc. No. 60]. Plaintiff asserts claims against Deputy Norris for illegal
entry, false arrest, and excessive force. The Court will address the claims in turn.
1.

Entry (Count One)

Above, the Court found that Officer Lofton violated Plaintiff’s clearly
established constitutional rights by entering his residence. However, that analysis is
not as straightforward as to Deputy Norris. Deputy Norris argues that two exigent

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circumstances allowed his entry into Plaintiff’s residence: (1) officer safety, and (2)
the potential for destruction of evidence.

As discussed above, there was no

reasonable basis for Deputy Norris to conclude that drugs were in the residence and
that said drugs were in imminent danger of destruction. But the Court is persuaded
that the officer safety exigency applied.
Here, the parties agree that Deputy Norris entered the residence immediately
after Officer Lofton. Although Deputy Norris should have been skeptical of the
circumstances, Deputy Norris was unaware of what Officer Lofton may have seen
or heard that spurred Officer Lofton’s entry into the residence. Deputy Norris acted
reasonably when entering the residence after Officer Lofton to ensure the safety of
his fellow law enforcement officer, and this was not a Fourth Amendment violation.
The Court notes that even if it were, it would certainly not be a violation of clearly
established constitutional law, and Deputy Norris would be entitled to qualified
immunity as to Count One. Deputy Norris’s Motion for Summary Judgment [Doc.
No. 60] is GRANTED as to Count One.
2.

Arrest (Count Two)

Deputy Norris does not address the arrest claim in his Motion for Summary
Judgment.

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3.

Force (Count Four)

Deputy Norris argues that he is entitled to summary judgment on the excessive
force claim because he never made physical contact with Plaintiff. In response,
Plaintiff argues that Deputy Norris is subject to liability because he: (1) failed to
intervene in Officer Lofton’s excessive force, and (2) actively encouraged Officer
Lofton to use excessive force.
The Eleventh Circuit has held that an officer who is present at the scene and
fails to take reasonable steps to protect the victim of another officer’s use of
excessive force can be held liable for failure to act if the officer was “in a position
to interview yet failed to do so.” Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th
Cir. 2002); Priester v. City of Riviera Beach, Fla., 208 F.2d 919, 924 (11th Cir.
2000); O’Kelley v. Craig, No. 18-14512, 2019 WL 3202928, at *5 (N.D. Ga. July
16, 2019). This duty to intervene only applies if the force-using officer violated
clearly established law or if the force was so utterly disproportionate that “any
reasonable officer would have recognized that his actions were unlawful.” Oliver v.
Fiorino, 586 F.3d 898, 908 (11th Cir. 2009); Callwood v. Jones, 727 Fed. App’x
552, 560 (11th Cir. 2018).
As discussed above, there are genuine issues of material fact that preclude
summary judgment related to the use of any force against Plaintiff, much less

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reasonable force. Because the failure to intervene theory is a viable theory of
recovery, Deputy Norris’s Motion for Summary Judgment [Doc. No. 60] is DENIED
as to Count Four. Also, the Court notes that Plaintiff may have an actionable claim
against Deputy Norris for actively encouraging the use of excessive force, although
Plaintiff has cited no cases in support of this proposition. The Court will consider
the viability of this theory at trial.
D.

Defendant Trooper Garrett Smith

As an initial matter, Plaintiff has consented to the dismissal of Count Four
(the excessive force claim) as to Trooper Smith [Doc. No. 76, p. 31, n.18], and
Plaintiff has made no argument about Trooper Smith regarding Count Two (the false
arrest claim). Trooper Smith’s Motion for Summary Judgment [Doc. No. 55] is
GRANTED as to Counts Two and Four. The Court will now address Trooper
Smith’s arguments regarding Count One (the illegal entry claim).
Specifically, Trooper Smith argues that he is entitled to qualified immunity
on Count One. The parties agree that Trooper Smith entered the residence after the
force incident and after the arrest to perform a protective sweep. The parties also
seem to agree that Trooper Smith was acting within the scope of his discretionary
authority. Thus, the burden shifted to Plaintiff to prove that Trooper Smith violated
a clearly established constitutional right. Plaintiff has not addressed this issue as to

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Trooper Smith. As a result, the Court finds that Trooper Smith is entitled to qualified
immunity on Count One, and his Motion for Summary Judgment [Doc. No. 55] is
GRANTED as to Count One. Plaintiff’s Motion for Partial Summary Judgment
[Doc. No. 63] is DENIED as to Defendant Smith.
E.

Defendant City of Statham

As an initial matter, Plaintiff has consented to the dismissal of all federal
claims against the City of Statham [Doc. No. 76, p. 35]. Plaintiff has also consented
to the dismissal of his state law claims against the City for false imprisonment and
assault and battery [Doc. No. 76, p. 36]. Defendant City of Statham’s Motion for
Summary Judgment [Doc. No. 59] is GRANTED as to Counts One, Two, Four, and
the state law claims for false imprisonment and assault and battery contained within
Count Five. The Court will now address Plaintiff’s remaining claims against the
City, which are his negligent training/supervision claim and his malicious
prosecution claim.
1.

Negligent Training and Supervision

The City argues that it is entitled to summary judgment on Plaintiff’s negligent
training and supervision claim because Plaintiff failed to give timely and proper ante
litem notice of his claim. O.C.G.A. § 36-33-5(a) prohibits any claims for money
damages against municipal corporations “without first giving notice . . . [w]ithin six

55

months of the event upon which a claim against a municipal corporation is predicated
. . . in writing to the governing authority of the municipal corporation.” The purpose
of the ante litem requirement is to give the municipality “the opportunity to
investigate potential claims, ascertain evidence, and avoid unnecessary litigation.”
Davis v. City of Forsyth, 621 S.E.2d 495, 498 (Ga. Ct. App. 2005) (citation omitted).
Satisfaction of the ante litem notice requirement is a condition precedent to bringing
suit against a municipal corporation for damages resulting from injuries to person or
property. O.C.G.A. § 36-33-5(a); see, e.g., Harris-Jackson v. City of Cochran, 652
S.E.2d 607, 609 (Ga. Ct. App. 2007). Under Georgia law, failure to comply with
the statute is an absolute bar to a state law claim against a municipality. Fulton v.
City of Roswell, 982 F.Supp. 1472, 1475 (N.D. Ga. 1997).
Plaintiff’s claim for negligent training and supervision fails as a matter of law
because there is no evidence that Plaintiff provided the city with proper notice of his
claim within six months of August 4, 2016, the date Plaintiff was arrested and
charged pursuant to the citations issued by Officer Lofton. In fact, Plaintiff only
sent one purported ante litem notice to the City, which was dated July 6, 2017, well
outside the six-month period. There is no evidence that Officer Lofton took any
action following the date of the incident on August 4, 2016, that would bear on the
City’s training and supervision of him. Because the ante litem notice was untimely,

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the City is entitled to summary judgment. The Court also notes that Plaintiff’s ante
litem notice fails to substantially comply with the notice requirements of O.C.G.A.
§ 36-33-5(b) because it fails to explain how the City engaged in negligent training
and/or supervision, so his claim also fails for that reason. The City’s Motion for
Summary Judgment [Doc. No. 59] is GRANTED as to the negligent training and
supervision claim.
2.

Malicious Prosecution

The City argues that it is entitled to sovereign immunity on Plaintiff’s
malicious prosecution claim. The Georgia Constitution expressly provides that
immunity for tort claims can be waived only by a legislative act specifically
providing for such waiver and setting forth the extent thereof. Ga. Const., Art. I,
Sec. II, Par. IX(e); O.C.G.A. § 36-33-1 (“it is the public policy of the State of
Georgia that . . . municipal corporations shall be immune from liability for
damages”). O.C.G.A. § 36-33-3 provides that municipalities “shall not be liable for
the torts of policemen or other officers engaged in the discharge of the duties
imposed on them by law.” The parties agree that at the time Officer Lofton
performed the challenged actions, he was discharging the duties imposed upon him
as a law enforcement officer. Thus, the City argues that the plain language of
O.C.G.A. § 36-33-3 bars Plaintiff’s claim.

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In response, Plaintiff cites four cases in support of his contention that Georgia
courts are unanimous in holding that, notwithstanding the language of
O.C.G.A. § 36-33-3, a municipality’s purchase of liability insurance acts as a waiver
of sovereign immunity, such that the municipality can be held liable for the torts of
its police officer agents under general tort principles of respondeat superior and/or
vicarious liability. See Jordan v. City of Rome, 417 S.E.2d 730 (Ga. Ct. App. 1992);
Ekarika v. City of East Point, 420 S.E.2d 391 (Ga. Ct. App. 1992); Williams v.
Solomon, 531 S.E.2d 734 (Ga. Ct. App. 2000); McLemore v. City Council of
Augusta, 443 S.E.2d 505 (Ga. Ct. App. 1994). However, each of these cases arises
out of an employee’s negligent use of a motor vehicle and addresses a city’s waiver
of sovereign immunity under O.C.G.A. § 33-24-51(b). The City’s alleged liability
in this case is not premised on Officer Lofton’s negligent use of a motor vehicle and
instead exclusively arises out of torts while he was engaged in the discharge of law
enforcement duties. For that reason, O.C.G.A. § 33-24-51(b) does not apply.
The Court finds that sovereign immunity bars Plaintiff’s claim for malicious
prosecution against the City. Defendant City of Statham’s Motion for Summary
Judgment [Doc. No. 59] is GRANTED as to the malicious prosecution claim.
IV.

Conclusion
For the reasons discussed above,

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(1)

Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 63] is
GRANTED in part and DENIED in part. The Motion is GRANTED as
to Count One (illegal entry) as to Officer Lofton but is otherwise
DENIED.

(2)

Defendant Officer Lofton’s Motion for Summary Judgment [Doc. No.
57] is GRANTED in part and DENIED in part. The Motion is DENIED
as to Count One (illegal entry), DENIED as to Count Two (false arrest),
GRANTED as to Count Three (malicious prosecution), DENIED as to
Count Four (excessive force), and DENIED as to Count Five (state law
claims).

(3)

Defendant Deputy Norris’s Motion for Summary Judgment [Doc. No.
60] is GRANTED in part and DENIED in part.

The Motion is

GRANTED as to Count One (illegal entry) and DENIED as to Count
Four (excessive force).
(4)

Defendant Trooper Smith’s Motion for Summary Judgment [Doc. No.
55] is GRANTED.

(5)

Defendant City of Statham’s Motion for Summary Judgment [Doc. No.
59] is GRANTED.

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Plaintiff, Defendant Officer Lofton, and Defendant Deputy Norris are
ORDERED to file a proposed consolidated pretrial order within thirty days of this
order.
SO ORDERED this 30th day of July, 2019.

________________________________
RICHARD W. STORY
United States District Judge

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