This appeal concerns a grant of summary judgment to three law enforcement officers — Lincoln County Sheriff Gerald S. Lawson and Lincoln County Deputies James K. Foskey and Jack Hancock—in an action brought by Robert Jay Lagroon and Kelli Sue Barnett for false imprisonment, false arrest, and malicious prosecution. Lagroon and Barnett were charged in a special presentment with contributing to the delinquency of minors by being present at a party where minors were consuming alcohol, which was held at the home of another
Because we find that malicious prosecution is the exclusive remedy available to Lagroon and Barnett, we affirm the grant of summary judgment to the defendants on the claims for false imprisonment and false arrest. We reverse the grant of summary judgment on the malicious prosecution claims, however, because there are genuine issues of material fact as to whether the defendants were entitled to official immunity, whether they honestly and reasonably believed there was probable cause, and whether they acted with malice.
1. Facts.
Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.
Stolte v. Hammack,
So viewed, the evidence shows that Appellant Lagroon was a dentist in South Carolina and Appellant Barnett was his office employee and babysitter for his two young children. On January 6, 2007, the two embarked on a driving trip to Savannah where Lagroon would attend a professional meeting and Barnett would babysit the children. They were towing a camper. When the lights on the camper began to malfunction, they stopped at property adjacent to the house of Kathy Rhodes, an acquaintance of Barnett. Lagroon could not
Unbeknownst to Lagroon and Barnett, Kathy Rhodes’ two teenaged sons had arranged to have a party at her house to celebrate the older son’s 18th birthday. Teenagers began arriving on the property, bringing coolers, food and drinks. Wade Rhodes, who was Kathy Rhodes’ ex-husband and the father of the two boys, knew about the party and was concerned that the teenagers would be drinking alcohol. He and a friend watched the party through binoculars, became convinced that the party involved underage drinking, and reported the party to Sheriff Lawson.
Sheriff Lawson arrived at Kathy Rhodes’ house with two deputies, one of whom was Deputy Foskey. They saw cars parked everywhere and a large number of underage people outside of the house near a bonfire. Many of the partygoers were drinking alcohol. On the deck of the house, teenagers were getting beer from coolers, and there was alcohol available inside the house, as well. As the law enforcement officers approached, many partygoers scattered, but the officers corralled some of them into the house.
Deputy Foskey interviewed partygoers to determine who had provided the alcohol. Most of them said they did not know who had provided the alcohol, but some gave statements indicating that Lagroon and Barnett had been at the party, and four gave statements identifying “the dentist” as the alcohol source. Two out of those four witnesses, however, subsequently testified that they originally told law enforcement officers they did not know who provided the alcohol and that they gave the statements implicating Lagroon only after being coerced to do so. In one case, at Sheriff Lawson’s direction, Deputy Foskey tore up the witness’s original statement and told the crying teenager to sign a new statement implicating Lagroon or else the deputy would arrest him and take him to the Juvenile Detention Center. In another instance, when a teenaged witness refused to give a statement implicating Lagroon, the teenager’s father began “physically abusing” him and told him that he would “throw [the teenager] out of the house if [he] did not write a statement for the Sheriff stating that Dr. Lagroon had brought the beer to the party.” This occurred in front of Sheriff Lawson. According to another teenager, the law enforcement officers “were telling us basically what to write down, at the beginning, that night.... They were sitting there telling us that we needed to write this and we need to write that.”
After receiving the statements from the teenagers, Sheriff Lawson went to the camper, accompanied by his chief investigator, Deputy Hancock, whom he had called to the scene, as well as Wade Rhodes and Rhodes’ friend. Deputy Hancock knocked on the camper
Barnett was driven to the sheriff’s office and placed in a holding cell until the following morning, when Deputy Hancock interviewed her. He did not question her about what happened at the party; instead, he questioned her primarily about her estranged husband, whom she was divorcing. He told Barnett that he was the officer who had to “kick [her] husband out of the house” in response to a temporary restraining order that Barnett had obtained the month before, that he felt bad about kicking her husband out, that her husband was a “nice guy,” and that he had her husband’s cell phone number and would call him to “come up there” to the sheriff’s office. He also told Barnett that he would be testifying against her in her divorce action. Barnett provided Hancock with a written statement explaining why she had been in the camper on the property adjacent to the party, and she was returned to her cell.
Lagroon was taken separately to the sheriff’s office where, after waiting several hours, he was interviewed by Deputy Hancock. Deputy Hancock questioned him about an alcohol purchase he had made before leaving on his trip to Savannah. Deputy Hancock then asked Lagroon to sign a paper that set forth his Miranda rights, and when Lagroon asked whether he was under arrest replied, “I don’t know.” Deputy Hancock finally told Lagroon he was under arrest and demanded that he make a written statement. Lagroon refused and was placed in a cell.
Deputy Hancock also interviewed Kathy Rhodes at the sheriff’s office. In that interview, she repeatedly told Deputy Hancock that neither Lagroon nor Barnett provided alcohol for the party. She gave Deputy Hancock a written statement to that effect.
After the interviews, Deputy Hancock told Deputy Foskey that there was probable cause to arrest Lagroon and Barnett, and based
The sheriff’s office sent the case file to the district attorney’s office in February 2007. Later that spring, Kathy Rhodes gave Deputy Hancock a further written statement that neither Lagroon nor Barnett had provided alcohol at the party. In July 2007, she sought a copy of that statement, and Deputy Hancock told her that he had torn it up. He asked her to write another statement and she did, again stating that neither Lagroon nor Barnett provided alcohol at the party. Deputy Hancock did not forward Rhodes’ July 2007 statement to the district attorney’s office at that time.
Sheriff Lawson requested that the district attorney’s office seek indictments against Lagroon and Barnett on multiple counts. In January 2008, Deputy Foskey testified before a grand jury about the case against Lagroon and Barnett, and the grand jury returned a special presentment charging Lagroon and Barnett with seven counts each of contributing to the delinquency of a minor.
In April 2008, Deputy Hancock sent the district attorney’s office the statement he had obtained from Kathy Rhodes nine months before. The district attorney testified in his deposition that he thought the statement “completely exonerated” Lagroon and Barnett. He testified that he “really became angry” after receiving the statement from Hancock, and he testified, “it’s my career that this man [Hancock] was messing with, and I’m still upset about it.” The district attorney also testified that if he had known of the statement’s existence earlier he would have approached the case differently before the grand jury and might not have taken the case to the grand jury at all. On December 15, 2008, the district attorney obtained a order of nolle prosequi dismissing the charges against Lagroon and Barnett.
2. Official immunity.
As a threshold issue, we address the defendants’ argument that, as a matter of law, they are entitled to official immunity. See Marshall v. Browning,
Because the defendants’ actions challenged in this case are discretionary, they are immune from suit unless they acted with wilfulness or actual malice. See Marshall,
(a) Sheriff Lawson and Deputy Foskey.
As to Sheriff Lawson and Deputy Foskey, there is evidence that they were told at the scene that Lagroon and Barnett had no involvement with the alcohol available at the party. Nevertheless, there is evidence that they used or condoned threats to pressure teenaged eyewitnesses into giving statements to the contrary, and that they dictated the contents of some of those statements. Furthermore, there is evidence that Sheriff Lawson and Deputy Foskey used these improperly-procured statements as the basis for arresting and prosecuting Lagroon and Barnett despite knowing of the statements’ falsity, inaccuracy or unreliability.
From this evidence, a jury reasonably could infer that Sheriff Lawson and Deputy Foskey arrested Lagroon and Barnett and took steps to secure grand jury charges against them despite knowing that they had not committed any offenses, “thereby establishing that the officer [s] deliberately intended to do a wrongful act.” City of Atlanta,
(b) Deputy Hancock.
There is evidence that Deputy Hancock used his interview with Barnett to question her about her estranged husband, rather than the facts of the case, and then misrepresented to Deputy Foskey that the interview supported the decision to seek an arrest warrant. There is evidence that Deputy Hancock threatened to bring Barnett’s husband to the jail despite the protective order against him, and evidence that he bragged to Barnett about testifying against her in her upcoming divorce trial. And there is evidence that for nine months Deputy Hancock concealed from the district attorney exculpatory evidence favoring Barnett and Lagroon, failing to provide this information until after the grand jury proceedings. A jury could infer from this evidence that Deputy Hancock acted with actual malice. See Greenway,
3. Applicable cause of action.
Lagroon and Barnett brought claims for false imprisonment, false arrest, and malicious prosecution. These are three different, related torts. Because Lagroon and Barnett were arrested pursuant to a warrant and the action was carried on to a prosecution, the applicable cause of action is malicious prosecution.
Although the distinctions among the torts of false imprisonment, false arrest, and malicious prosecution are not always clear in our case law,
(1) false imprisonment... is “unlawful” detention without judicial process, or without the involvement of a judge at any point (OCGA § 51-7-20); (2) false or malicious arrest... is detention “under process of law” (OCGA § 51-7-1); and (3) malicious prosecution ... is detention with judicial process followed by prosecution (OCGA § 51-7-40).
the remedy of the accused depends on whether or not he is actually prosecuted under the warrant. If after the arrest the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie.
Garner v. Heilig-Meyers Furniture Co.,
The undisputed evidence in this case showed that law enforcement officials obtained warrants for the arrest of Lagroon and Barnett and that the state subsequently charged them with criminal offenses pursuant to a special presentment by the grand jury. See generally OCGA § 17-7-51 (“All special presentments by the grand jury charging defendants with violations of the penal laws shall be treated as indictments”). Consequently, the applicable cause of action in this case is malicious prosecution. McCord v. Jones,
4. Malicious prosecution.
“A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40. A plaintiff asserting malicious prosecution must show: “(1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff.” Willis v. Brassell,
About most of those elements, little more needs to be said. As discussed in Division 3, supra, Lagroon and Barnett have shown that they were prosecuted for criminal offenses, and there is evidence by which a jury could find that the three defendants instigated the prosecution. The evidence also established that Lagroon and Barnett were prosecuted under warrants obtained from the magistrate court
(a) Want of probable cause.
“Want of probable cause is the gravamen of an action for malicious prosecution[.]” Condon v. Vickery,
“Probable cause does not depend on the actual state of the case in point of fact, but on the honest and reasonable belief of the party commencing the prosecution.” Harmon v. Redding,
First, the presence of Lagroon and Barnett at the party, without more, does not support a reasonable belief that probable cause existed, because such behavior is not a crime. Although a minor’s consumption of alcohol fell within the definition of a delinquent act under former OCGA § 15-11-2 (6) (A) (2013),
In cases where we have found evidence to support the conviction of an adult for this offense for being in the presence of an unrelated minor who was consuming alcohol, there were circumstances beyond the adult’s mere presence when the alcohol was consumed. For example, in Boyd, supra, there was evidence that the defendant adult and the minor went together to a park where the minor proceeded to drink beer. We found that this evidence supported an inference that the two were at the park together for that specific purpose and, consequently, a jury could find that the adult had actively participated in “conniving” in the minor’s possession and consumption of alcohol. Boyd,
below, the defendants had no additional evidence that Lagroon or Barnett knowingly or willingly acted to encourage, cause, abet, connive, or aid any of the minors in drinking alcohol. None of the witness statements, upon which the defendants claim to have relied in finding probable cause, indicated that Barnett brought alcohol to the party or served or encouraged anyone there to use alcohol. And a question of fact exists as to whether the defendants formed an honest or reasonable belief that there was probable cause from the statements linking Lagroon to the alcohol. ., addressed
A defendant’s belief is not “honest” or “reasonable” where there is evidence that the defendant knew the information he supplied to commence the prosecution was false, failed to set forth a full, fair and complete statement of the facts, or concealed facts. Brooks v. H&H Creek,
Lagroon and Barnett have pointed to evidence from which a jury could find that Sheriff Lawson and Deputy Foskey knew at the time that the witness statements were false or unreliable, yet proceeded to obtain arrest warrants and pursue the prosecutions. In addition, Lagroon and Barnett have pointed to evidence from which a jury could find that Deputy Hancock instructed Deputy Foskey to obtain an arrest warrant for Barnett without questioning Barnett about the charged offense and kept from the district attorney potentially exculpatory evidence that would have altered the way in which the district attorney presented the case to the grand jury. This evidence rebuts the prima facie evidence of probable cause that arose upon the grand jury’s return of charges against them and creates a question of fact about the element of want of probable cause.
(b) Malice.
The malice needed for a malicious prosecution action may be inferred from circumstances such as a “total lack of probable cause,” OCGA § 51-7-44, or actions of a defendant “done with a reckless disregard for or conscious indifference to the rights of the plaintiff.” Willis,
Judgment affirmed in part and reversed in part.
Notes
A similar definition of “delinquent act” can be found in Georgia’s new Juvenile Code at OCGA § 15-11-2 (19).