POLICE LIABILITY FOR FALSE ARREST, FALSE IMPRISONMENT
AND MALICIOUS PROSECUTION
By: Harvey S. Gray
I. Analysis of False Arrest, False Imprisonment and Malicious Prosecution Claims Under Georgia Law
A. False Arrest
An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party injured. O.C.G.A. ' 51-7-1. This statute has general application and, therefore, private citizens, private corporations, police officers, cities and counties are all subject to potential liability for false arrest claims under Georgia law. Where a private individual or private corporation party directly or indirectly urges a law enforcement official to begin criminal proceedings potential liability arises for false arrest and/or malicious prosecution; however, liability does not exist where facts are merely relayed to a law enforcement official who thereafter makes an independent decision to arrest and/or prosecute. Willis v. Brassell, 220 Ga. App. 348, 469 S.E. 2d 733 (1996).
A false arrest claim is an intentional tort and requires a showing of (1) an arrest under process of law, (2) without probable cause, and (3) made maliciously. Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 532 S.E.2d 463 (2000); Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681, 541 S.E. 2d 74 (2000). A lack of probable cause exists Awhen the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. O.C.G.A. '51-7-3. Although O.C.G.A. '51-5-43 expressly provides that the lack of probable cause Ashall be a question for the jury, under direction of the court, it has been held that Athe burden of proof to show lack of probable cause is on the plaintiff and if the plaintiff does not raise any evidence creating an issue of fact to establish a lack of probable cause, there is no issue to present to the jury. Stanford v. City of Manchester, 346 Ga. App. 129, 539 S.E.2d 845 (2000); Franklin v. Consolidated Government of Columbus, 236 Ga. App. 468, 512 S.E. 2d 352 (1999). AThe question of what facts and circumstances amount to probable cause to arrest is a pure question of law for decision by the court, not the jury. Franklin v. Consolidated Government of Georgia, supra. Cf. Northern Telecom, Inc. v. Wilkerson, 219 Ga. App. 710, 466 S.E.2d, 221 (1995) (Aunless facts regarding probable cause are undisputed, existence of probable cause is a question for the jury).
AMalice is defined under Georgia law as Apersonal spite or in general disregard of the right consideration of mankind, directed by chance against the individual injured. O.C.G.A. '51-7-2. AA total lack of probable cause is a circumstance from which malice may inferred; however, the inference may be rebutted by proof. O.C.G.A. '51-7-44. The malice necessary to support a claim for false arrest or for malicious prosecution may also be inferred if the defendant's actions were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff. Fleming v. U-Haul, supra. Where there is no evidence of malice other than such inference as may be drawn from proof of the want for probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to allow recovery in an action for false arrest and malicious prosecution under Georgia law. Franklin v. Consolidated Government of Georgia, supra.
A police officer's liability for false arrest requires a slightly different analysis inasmuch as police officers are invested with statutory powers to make arrests and are shielded with constitutional immunity for exercise of their official functions in the absence of actual intent to injure or actual malice. Art. I, 'II, &IX, of the 1983 Const. Of Ga.; O.C.G.A. '17-4-20 Thus, a police officer has immunity from a civil suit for the discretionary act of arresting a plaintiff for disorderly conduct, for arguing with the police officer, and for failing to obey the police officer's commands in the absence of a showing of actual malice towards the plaintiff or actual intent to injure. Woodward v. Gray, 241 Ga. App. 847, 527 S.E. 2d 595 (2000). Thus, the Actual malice required to void official function immunity for the officer must be more than a mere inference from a lack of probable cause for the arrest as would be the case with private citizens. Id.
Where an alleged victim reported to the police that she had been raped by the plaintiff and where the police officer made an arrest based upon such allegation, the requisite element of malice was not established because the officer was not directed by personal spite or by chance against the individual who was arrested. Stanford v. City of Manchester, 246 Ga. App. 129, 539 S.E. 2d 245 (2000). Similarly, even where a police officer lacked probable cause to effect an arrest for robbery, absent evidence that the officer acted with malice in applying for the arrest warrant, the arrestee's recovery from the officer was precluded. Franklin v. Consolidated Government of Columbus, supra. Even assuming an absence of probable cause, Georgia law does not presume malice or animus against a police officer merely because in discharge of his legal functions the police officer performs an illegal act; rather, to establish a claim and raise an issue of false arrest for the jury, the arrestee must at least show some evidence of animus. Pinkston v. City of Albany, 196 Ga. App. 43, 395 S.E.2d 587 (1990).
An action for false arrest can be supported when there has been an arrest pursuant to a warrant or when an arrest is made without a warrant. Simmons v. Kroger Company, 218 Ga. App. 721, 463 S.E. 2d 159 (1995). In either case, where probable cause exists, a police officer has authority to make the arrest and his actions in this regard cannot give rise to a state tort action for false arrest. McQurter v. City of Atlanta, 572 F.Supp. 1401 (N.D. Ga. 1983).
In any action for false arrest or malicious prosecution, it is essential that the plaintiff demonstrate that the prosecution terminated in his favor. Desmond v. Troncolli Mitsubishi, supra.; Garner v. Helig-Meyers Furniture Company, 240 Ga. App. 780, 525 S.E.2d 145 (1999). A plea of nolo contendre to a charge on which the false arrest claim is predicated is not termination in favor of the plaintiff sufficient to support a false arrest claim against the police officer making the arrest. Houston v. Tucker, 137 F.Supp. 2d 1326, aff'd 251 F.3rd 162 (11th Cir. 2000).
Where a criminal process is sued out with probable cause and an arrest is made, if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy and an action for false arrest will not lie. Barnes v. Gossett Oil Co., 56 Ga. App. 220, 192, S.E. 254 (1937).
B. False Imprisonment
False imprisonment is defined as the A unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty. The elements of the cause of action are (1) the detention and (2) the unlawfulness thereof. Rbarbe v. Collins, 219 Ga. App. 63, 463 S.E.2d 922 (1995); Scott Housing Systems, Inc. v. Hickox, 174 Ga. App. 23, 329 S.E.2d 154(1985). It is not necessary to establish malice to support a claim for false imprisonment. Smith v. Holeman, 212 Ga. App. 158, 441 S.E.2d 487 (1994). An action for false imprisonment will lie where a person is unlawfully detained under void process or under no process at all. Miller v. Grand Union Company, 250 Ga. App. 751, 552 S.E.2d 491 (2001). When a detention is predicated upon no process, false imprisonment is an available remedy and liability depends on whether such detention without supporting process was legally authorized under the circumstances. Erfani v. Bishop, 251 Ga. App. 20, 553 S.E.2d 26 (2001).
Unlike most states, Georgia law provides that false imprisonment is an intentional tort, not a tort of negligence. Miller v. Grand Union Company, 250 Ga. App. 751, 552 S.E.2d 491 (2001); See also Brand v. Universal Hospital, 240 Ga. App. 24, 525 S.E.2d 374 (1999). AThere can be no such tort as negligent false arrest, negligent false imprisonment which of itself makes the defendants liable without proof of the invasion of some interest other than the bare interest in freedom from arrest and confinement. Corporate Property Investors v. Milon, 249 Ga.App.699, 549 S.E.2d 157(2001).
C. Malicious Prosecution
AA 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. O.C.G.A. '51-7-40. To prevail on a malicious prosecution claim under Georgia law, a plaintiff must show: (1) prosecution for a criminal offense instigated by the defendant, (2) issuance of a valid warrant, accusation, indictment, or summons, (3) termination of the prosecution in favor of the plaintiff, (4) malice, (5) want of probable cause, and (6) damage to plaintiff. Ashmore v. Foster, 254 Ga. App. 97, 561 S.E.2d 228 (2002); Kaiser v. Tara Ford, Inc. 248 Ga. App. 481, 546 S.E.2d 861 (2001); Sherill v. Stockel, 252 Ga. App. 276, 567 S.E.2d 8 (2001).
As is the case with false arrest, if probable cause exists for the prosecution, even where the prosecution is deemed malicious, there can be no recovery. Fleming v. U-Haul of Georgia, supra. An arrestee also cannot recover where he is found guilty on any one of the charges brought against him because the verdict establishes the existence of probable cause for the prosecution. Young v. City of Atlanta, 631 F. Sup.1498 (N.D. Ga. 1986). Similarly, a trial court's denial of a motion for directed verdict of acquittal on any one of the charges brought against the accused creates a binding determination of the existence of probable cause for the prosecution such that a civil action for malicious prosecution, even if the accused is subsequently acquitted by the jury, will not lie. Allen v. Montgomery Ward and Company, 186 Ga. App. 337, 367 S.E.2d 120 (1988).
As is also the case with regard to false arrest, a grand jury indictment constitutes prima facie evidence that probable cause existed for the prosecution, however, that presumption may be rebutted by the accused. Kelly v. Serna, 87 F.3d 1235 (N.D. Ga. 1996). Likewise, a magistrate's determination of probable cause is prima facie yet rebuttable evidence of the existence of probable cause for a prosecution. Zohoury v. Home Depot, Inc. 239 Ga. App. 454, 521 S.E.2d 389 (1999).
One essential element necessary to support a malicious prosecution claim is that a prosecution was commenced. Where a plaintiff, after his arrest, is brought before a magistrate who makes inquiry and then binds the case over for grand jury proceedings and sets a bond, this is a sufficient Aprosecution to support a claim for malicious prosecution. Branson v. Donalson, 206 Ga. App. 723, 426 S.E.2d 218, cert. denied (1992). A second element which must be established is that the prosecution was terminated in favor of the accused. O.C.G.A.'51-7-41, -42. As noted, a plea of nolo contendre does not constitute termination in favor of the accused to support a malicious prosecution claim. Houston v. Tucker, supra.
Significantly, in actions in actions for malicious prosecution actions it is stated that there exists no exact measure of damages for such claims except the enlightened conscience of impartial jurors and the worldly circumstances of the parties are admissible in evidence for consideration by the jury in awarding damages. Simmons v. Edge, supra. Only in punitive damages cases is worldly circumstance evidence typically allowed.
D. Municipal Liability
O.C.G.A. ' 36-33-3 provides that Aa municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law. Nevertheless, a city may be liable for the negligent acts of a police officer to the extent it has waived sovereign immunity, such as through the purchase of liability insurance. Williams v. Solomons, 274 Ga. 122, 549 S.E.2d 341 (2000); McLemore v. City Council of Augusta, 212 Ga. App. 862, 443 S.E.2d 505 (1994). In the absence of some waiver of immunity afforded to a city for torts committed by its police officers while engaged in their official duties, there is no municipal liability for a claim based on alleged reckless conduct by police. Williams v. Solomons, supra.
II. Analysis of False Arrest, False Imprisonment and Malicious Prosecution Claims under Federal Law
A. General Rules of Application and the Doctrine of Qualified Immunity
Claims for false arrest, false imprisonment and malicious prosecution under federal law are generally pursued under 42 U.S.C. '1983. Although private individuals can act in concert with public officials to satisfy the Acolor of state law requirement in section 1983, that is the rare exception and virtually all claims against private individuals and private corporations for false arrest, false imprisonment and malicious prosecution proceed solely under state law. Police officers, when performing their duties, act directly under color of state law and, therefore, a majority of such claims against police officer and their employees included federal claims brought under section 1983.
Section 1983 provides a civil remedy for persons whose federal constitutional or other federally-established rights are violated under color of state law. Section 1983 does not create a new cause of action but rather provides a means by which violations of a federally-protected rights can be converted into civil actions for damages. Butts v. Volusia, 222 F.3d 891 (11th Cir. 2000). Section 1983 is particularly attractive to plaintiffs' attorneys in light of 42 U.S.C. '1988 which provides for payment of the plaintiffs' attorneys fees in the event of a successful recovery.
The federal rights which are implicated in false arrest, false imprisonment and malicious prosecution cases are (1) the Fourth Amendment's prohibition against Aunreasonable searches and seizures and admonition that Ano warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be served, and the person and thing to be seized and the Fourteenth Amendment's prohibition against state action which Adeprive(s) any persons of life, liberty and property without due process. Before addressing the underlying constitutional issues arising from a federal claim alleging false arrest, false imprisonment or malicious prosecution it is necessary to address the concept of qualified immunity.
Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct Adoes not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). "The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). To receive qualified immunity, "the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee v. Ferraro, supra. "Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Id.
The U.S. Supreme Court has established a two-part test for the application of qualified immunity. "The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508 (2002) (citing 878 Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. However, "[i]f a constitutional right would have been violated under the plaintiff's version of the facts, 'the next, sequential step is to ask whether the right was clearly established.' " Vinyard, 311 F.3d at 1346 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151).
To receive qualified immunity protection in a false arrest claim pursued under federal law, "an officer need not have actual probable cause but only 'arguable probable cause.' " Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.1997). Because only arguable probable cause is needed, "the inquiry is not whether probable cause actually existed, but instead whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed." Id. "Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534 (1991).
Although the governmental entities which employ law enforcement officials cannot assert a qualified immunity defense to such claims, there is no respondeat superior liability under section 1983. Gold v. City of Miami, 151 F.3d 1346 (11th Cir. 1998). To hold the governmental employer liable for such claims it must be established that the actions of the governmental entity, either through an express or implied policy or custom, or through failure to properly train its officers, must be viewed as the Amoving force of the constitutional violation. Monell v. Dept. of Soc. Serv. 436 U.S. 658, 98 S.Ct. 2018 (1978). Where there is no underlying constitutional violation (ie, there was probable cause for an arrest), there is no liability on the part of the governmental employer. City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571 (1986).
With these concepts in mind, the discussion will address the constitutional framework for claims asserting false arrest, false imprisonment and malicious prosecution. As noted below, every case requires a determination of whether a constitutional right has been violated and whether qualified immunity applies to the actions of the law enforcement officials in arresting, detaining and prosecuting the plaintiff.
B. False Arrest and the Application of Qualified Immunity
A warrantless arrest without probable cause violates the Fourth Amendment and forms the basis for a ' 1983 claim. Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990). An arrest does not violate the Fourth Amendment if a police officer has probable cause for the arrest. See Lee, 284 F.3d at 1194-95; Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.1996); Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir.1990). "For probable cause to exist, ... an arrest must be objectively reasonable based on the totality of the circumstances." Lee, supra at 1195. "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 suspect has committed, is committing, or is about to commit an offense." Dahl v. Holley, 312 F.3d 1228, at 1233 (11th Cir. 2002); Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998) "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." Lee, 284 F.3d at 1195.
A police officer is entitled to qualified immunity if he had Arguable probable cause for the arrest or applied for an arrest warrant in Agood faith. Moore v. Gwinnett County, 967 F.2d 1495 (11th Cir. 1992). If qualified immunity exists, the officer is immune from a suit for damages although, as discussed below, the municipality may not assert the qualified immunity of the officer as a defense and the municipality cannot assert qualified immunity on its own behalf. Generally, if the underlying conduct did not violate a constitutional or other federal right, the municipality will not be held liable. City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571 (1986).
C. False Imprisonment and the Application of Qualified Immunity
An unlawful arrest and detention by a police officer effected under color of state law gives rise to an action under section 1983 for deprivation of a federally protected right. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961);Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967). A false imprisonment claim under ' 1983 is based on the protections of the Fourteenth Amendment against deprivations of liberty without due process of law as well as the Fourth Amendment's prohibition on unreasonable seizures. Baker v. McCollan, 443 U.S. 137, 142, 99 Sup.Ct. 2689, 2693-94 (1979). Where a police officer lacks probable cause to make an arrest, the arrestee has a claim under ' 1983 for false imprisonment based upon a detention pursuant to that arrest. Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996). Moreover, under certain circumstances, a detention following a valid arrest may present a viable section 1983 claim where the detainee protests the detention on the basis of misidentification. Cannon v. Macon County, 1 F.3d 1558, 1562 ( 11th Cir. 1993)(citing Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979)).
C. Malicious Prosecution and the Application of Qualified Immunity
Unlike some circuits, the 11th Circuit has determined that a malicious prosecution can constitute a violation of the Fourth Amendment and a viable constitutional tort cognizable under section 1983.[1] See Uboh v. Reno, 141 F.3d 1000, 1002-04 (11th Cir.1998); Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir.1996); Kelly v. Curtis, 21 F.3d 1544, 1554-55 (11th Cir.1994). To establish a federal malicious prosecution claim under section 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution. See Uboh, 141 F.3d at 1002-04; Whiting, 85 F.3d at 584-86; Kelly, 21 F.3d at 1553-55.
Both state and federal law identify the elements necessary to support a claim for malicious prosecution under federal law; however, a Fourth Amendment malicious prosecution claim under ' 1983 remains a federal constitutional claim, and its elements and whether they are met ultimately are controlled by federal law. See Green v. Montgomery, 219 F.3d 52, 60 n.2 (2d Cir.2000) ("[The] federal law of probable cause--not state law--should determine whether a plaintiff has raised a genuine issue of material fact with respect to a '' 1983 malicious prosecution claim."). When malicious prosecution is brought as a federal constitutional tort, the outcome of the case does not hinge on state law, but federal law, and does not differ depending on the tort law of a particular state. Id.
Whether pursued under federal or state law, to maintain a malicious prosecution action the prosecution giving rise to a suit must terminate in the plaintiff's favor. See, e.g., Singleton v. City of New York, 632 F.2d 185, 193-95 (2d Cir.1980), cert. denied 450 U.S. 920, 101 S.Ct. 1368 (1981); Cooper v. Public Finance Corp., 146 Ga.App. 250, 254, 246 S.E.2d 684 (1978).
D. Municipal Liability
Governmental entities may be held liable under 42 U.S.C. '' 1983 only when a governmental "policy or custom" is the "moving force" behind the constitutional deprivation. Farred v. Hicks, 915 F.2d 1530, 1532-33 (11th Cir.1990). See also Kentucky v. Graham, 473 U.S. 159,105 S.Ct. 3099 (1985) (the governmental entity's " 'policy or custom' must have played a part in the violation of federal law."). A local governmental entity may not be held liable for an employee's tortious acts "unless action pursuant to official municipal policy of some nature caused [the] constitutional tort." Collins v. City of Harker Heights, 503 U.S. 115,112 S.Ct. 1061, (1992) (quoting Monell, supra at 691). In other words, respondeat superior may not serve as the basis for imposing section 1983 liability on such an entity. Collins, supra; City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197 (1989); Monell, supra at 691, 694 ("[A] local government may not be sued under ' 1983 for an injury inflicted solely by its employees or agents.
It is only when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under ' 1983."). In addition, "not only must there be some degree of 'fault' on the part of the municipality in establishing or tolerating the custom or policy, but there also must exist a causal link between the custom or policy and the deprivation." Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir.1985) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808,105 S.Ct. 2427 (1985)). See also Vineyard v. County of Murray, Georgia, 990 F.2d 1207, 1211 (11th Cir.) ("To attribute liability to a municipality under '' 1983, the plaintiff must demonstrate that the municipality had an official policy that was 'the moving force of the constitutional violation.' " [citation omitted] ), cert. denied, 510 U.S. 1024, 114 S.Ct. 636, (1993).
The term "custom" includes "persistent and wide-spread. . .practices," "permanent and well settled" practices, and "deeply embedded traditional ways of carrying out policy." Adickes, supra at 167-68. A government need not formally adopt a custom for the custom to take on the force of law. It may take on such force by virtue of being sufficiently settled and permanent. Fundiller v. City of Cooper City, supra at 1442 (11th Cir.1985). "To have this effect, the custom must be 'created' by those whose 'edicts or acts may fairly be said to represent official policy.' " Id. (quoting Monell, supra at 694).
[1] In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994) (plurality opinion), the U.S. Supreme Court concluded that the substantive due process component of the Fourteenth Amendment did not provide the constitutional source of a right to be free from malicious prosecution but left open the possibility that the Fourth Amendment would be the appropriate source of the right to be free from malicious prosecution. Id. at 274-75, 114 S.Ct. 807. The 11th Circuit, joined by the First, Second and Seventh Circuits, recognize malicious prosecution as a potential section 1983 claims. See Lambert v. Williams, 223 F.3d 257, 261 (4th Cir.2000).
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