Vidal v. Leavell
333 Ga. App. 159
Ga. Ct. App.2015Background
- Ashley Leavell was a patron at a Buckhead IHOP where off-duty Officer Jose Vidal, hired as security, attempted to arrest other patrons; Leavell began videotaping because she perceived excessive force.
- Vidal ordered bystanders to stop touching him; Leavell approached and touched his shoulder to get his attention while videotaping; videotape shows she then swung at Vidal multiple times.
- Another officer restrained Leavell’s arm; Vidal struck her, threw her to the floor, dragged her to the entrance, and handcuffed her; Leavell was arrested for obstruction and assault and evaluated at a hospital.
- Leavell sued Vidal for battery, negligence, and excessive force (constitutional claim). Vidal moved for summary judgment asserting official (qualified) immunity; the trial court denied the motion without findings.
- Vidal appealed under the collateral order doctrine seeking immediate review of the denial of official immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vidal is entitled to official immunity for conduct during the arrest | Leavell: Vidal struck and forcibly arrested her with actual malice and intent to injure, defeating immunity | Vidal: His actions were discretionary and not done with actual malice or intent to injure; immunity bars personal liability | Reversed: No evidence of actual malice; Vidal entitled to official immunity and summary judgment should have been granted |
| Whether the appeal is properly before the court under the collateral order doctrine | Leavell: The denial of immunity order is not collateral | Vidal: Denial of official immunity is appealable as a collateral order because it prevents the entitlement not to stand trial | Court: Appealable under collateral order doctrine; Leavell’s motion to dismiss appeal denied |
Key Cases Cited
- Williams v. Pauley, 331 Ga. App. 129 (recognizing official immunity scope and purpose)
- Selvy v. Morrison, 292 Ga. App. 702 (actual malice requires deliberate intent to do wrong; frustration/anger insufficient)
- Tittle v. Corso, 256 Ga. App. 859 (threats/profanity/force in arrest context insufficient for actual malice)
- Valades v. Uslu, 301 Ga. App. 885 (officer’s harsh restraint during arrest did not show actual malice)
- Anderson v. Cobb, 258 Ga. App. 159 (definition of deliberate intent to commit wrongful act for malice analysis)
- Phillips v. Hanse, 281 Ga. 133 (distinguishing actual malice from implied malice)
- Taylor v. Campbell, 320 Ga. App. 362 (denial of official immunity is appealable under collateral order doctrine)
- Scott v. Harris, 550 U.S. 372 (video evidence controls where it clearly depicts events)