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Nov 10 17

Continuing Education Partial Notes – 42 USC 1983 Litigation

by merlin

LITIGATION UNDER 42 USC § 1983

November 9, 2017; State Bar HQ

 

Federal Constitutional and Statutory Protections for Non-Citizens:

Brian Spears (Law Offices of Brian Spears)

Michelle R. Lapointe (Southern Poverty Law Center)

 

4th Amendment Protections:

Regardless of immigration status, 4th Amendment applies (all persons) – Zadvydas v. Davis, 533 U.S. 678 (2001).

 

14th Amendment:

State has less power than feds because of plenary power

  • Ziglar v. Abbasi (2017): Limits Bivens remedy for claims of constitutional violations against high-ranking officials arising out of post-9/11 harsh detention policies and practices
  • Noncitizens are considered “discrete and insular minority” and strict scrutiny applies to classifications based on alienage. Graham v. Richardson, 403 U.S. 365 (1971)

 

“Important rights” (such as education, via Plyler) versus “fundamental rights” (life, liberty, etc.) – courts have struggled with trying to find the right level of scrutiny – INTERMEDIATE SCRUTINY

 

State Sovereign Immunity, Post-Lathrop

Craig Goodmark:

 

Seek declaratory/injunctive relief.

Lathrop limited the judicial branch power to grant relief; seek to sue the personal holder of the office in charge?  Defendants are the State and the official in their official capacity

 

Sovereign Immunity is limited ONLY by statutory or constitutional waivers

 

Could not even get them 1974 to 1983 beyond insurance purchased.  In 1983, legislature resumed waivers.

 

Georgia DNR v. Center for Sustainable Coast, 294 Ga. 593 (2014):

Overruled IBM v. Evans (which held that sovereign immunity bars suit for injunctive relief); expressly overruled Evans (since only the legislature can waive sovereign immunity, it’s actually an illegal waiver)

 

            Brian Spears is the best person to ask about the Sustainable Coast case.

 

Exceptions: Georgia Tort Claims Act?  Administrative Procedure Act?  What about CONSTITUTIONAL CHALLENGES?

  • Lathrop v. Deal says that sovereign immunity goes to constitutional challenges, too.  It extends “from the very nature of sovereignty itself”.
  • Can ONLY sue the actors in the INDIVIDUAL CAPACITIES (because of Lathrop and Sustainable Coast)

Name State Defendants in their individual capacity; sue under existing exemptions to sovereign immunity:

  • Breach of contract
  • GTCA
  • Georgia APA

 

Use extraordinary writs (mandamus, quo warranto)

Plead ministerial acts of individual state actor

Amend complaint to drop agency

 

CONTACT THE SOUTHERN CENTER FOR HUMAN RIGHTS ABOUT S.O.R. LITIGATION GOING ON NOW.

 

Offers of Judgment in Civil Actions (FRCP Rule 68)

Michael Caplan (Caplan, Cobb, LLP)

 

Rule 68(d) ONLY kicks in when a Plaintiff actually WINS the case

 

Defendants need to think about Rule 68 to limit Plaintiff recovery

Even if Plaintiff prevails and rejects it, they still have to prove the reasonableness of their fees at the time the offer was made.

 

Compare to § 9-11-68 (offers of settlement):

  • If Plaintiff loses or wins less than 75% of amount offered, they have to pay BOTH sides’ costs.
  • If the Plaintiff gets more than 125% of amount offered, then they can collect all costs and fees from the date of the rejection, too.
  • ONLY APPLIES TO TORT CASES

 

Remember that if only federal claims are brought in federal court, stuck with Rule 68, but if any State law claims are included then can include a § 9-11-68 claim in response

 

Pre-Suit Notice of Dispute:

  • For attorney’s fees, generally REQUIRED!

Getting Classy With Section 1983 (Class Actions)

Crystal Redd, Southern Center for Human Rights

404-688-1202

credd@schr.org

 

Building the Plaintiff Class:

  • Cold calls
  • Word of mouth
  • Local activists
  • Court-watching (and Court research)
  • Open Records requests

 

For the definition of the class, remember “ALL PERSONS WHO ARE NOW OR WILL BE IN THE FUTURE…”

 

Class representatives:

  • Compelling story for the class
  • Comfortable having story shared
  • They understand the remedy (ie – injunctive relief means no money)

 

Class certification:

 

Settlement: REMEMBER NOTICES if there are damages

 

 

Malicious Prosecution Claims

Jeffrey Filipovits (Filipovits Law Firm)

 

Malicious Prosecution claims are governed by 4th Amendment (Manuel). 

  • Must remind Court up front that it is controlled by federal law even if State law doesn’t recognize it.
  • Official Immunity is a nightmare, state tort claims confer immunity on them, and state policy frowns on malicious prosecution

 

  1. Initiation of a prosecution (must be pursuant to a “legal process”)
  • Remember: “False Arrest” versus “Malicious Prosecution”
  1. There must be a detention pursuant to the legal process that is ONGOING

(there are conditions on a bond such as not letting them leave the State that constitute a continuing seizure)

  1. Arrest must be made WITHOUT PROBABLE CAUSE
  • The Monroe rule: Monroe v. Seigler, 256 Ga. 759 (1987) – if judge denies directed verdict, no malicious prosecution suit unless denial was secured through fraud
  • Devenpeck – being subsequently charged with an offense less serious than the one the person was arrested for can absolve of liability
  • Admissibility of ultimate evidence of guilt – upholds validity of otherwise invalid arrest
  • What if Defendant is not a law enforcement officer?
  • Is the fact that a judge signed off on a warrant a defense? It shouldn’t be, especially if the officer has selectively omitted important facts
  1. Must be made WITH MALICE.
  • It can be inferred from lack of probable cause, and it runs contrary to the “objective” standard of the Fourth Amendment

 

PRETRIAL DIVERSION DOES NOT BAR FALSE ARREST CLAIMS.

 

DISMISSAL CANNOT BE BASED ON AGREEMENT WITH PROSECUTOR.

 

Perspectives from the Bench

Hon. Catherine Salinas

“Magistrate Judge in the United States District Court”

 

Consent to jurisdiction by Magistrate Court more often – they have the scheduling ability, etc., and want it.

 

“magistrate” is an ADJECTIVE, not a NOUN.

 

Protests: Speech and Signage Issues

Sean R. Young (ACLU)

 

Speech regulation: “content neutral” (intermediate scrutiny) versus content discrimination (strict scrutiny)

  • If you have to read the sign to enforce regulation, it isn’t content neutral.

 

Motive analysis: Look into the hearts of the legislators (good, or evil?):

If it’s intended to suppress a viewpoint, that’s NOT content-neutral and you need a neutral justification

 

Apply these tests except when you don’t.

 

When is it content-neutral?

  • Risk-sniffing test: Is there a RISK that the government will suppress speech it doesn’t like?
  • Strict scrutiny is UNWARRANTED when the risk is inconsequential.

 

Reed v. Town of Gilbert (2015):

  • Sign ordinance set size restrictions for signs, depending on whether they were “ideological”, “political”, or “temporary directional”
  • Court applied facial analysis and motive analysis to find the regulation unconstitutional under strict scrutiny
Oct 12 17

*Actual* Limits on Child Custody Modification and Contempt Actions

by merlin

An action to obtain a change legal custody (or modification of a determination made) is controlled in this State by the provisions of OCGA Section 19-9-23.  The text of the section follows:

  • 19-9-23. Actions to obtain a change of legal custody; how and where brought; limitations

(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.

(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.

(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:

(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or

(2) In response to any other action or motion seeking to enforce a child custody order.

(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.

 

These seem to be pretty inflexible limitations on what can and cannot be done regarding these kinds of actions.  However, for finer determination of the governing principles, the text of Colbert v. Colbert, 321 Ga.App. 841, 743 S.E.2d 505 (Ga. Ct. App. 2013), is below.  This case addresses contempt of the original divorce decree provisions and a reply of child custody modification brought in response to it.  It provides an informative response on the topic, and it is presented for better understanding of the manner of operation that Courts are bound by in these cases.

 

DOYLE, Presiding Judge.

Following their divorce in Fulton County, Shenita Colbert (“mother”) and Tramaine Colbert (“father”) shared joint legal custody of their two minor children, with the mother having primary physical custody. The mother filed a petition for contempt and modification of child support in Clayton County, and the father filed an answer, a counterclaim for modification of custody, and a motion for contempt. The trial court granted the father’s motion to modify custody, giving him primary physical custody, required the mother to pay child support, and denied both parties’ motions for contempt. The mother appeals, arguing lack of jurisdiction and improper venue with regard to the trial court’s rulings on contempt and custody. We affirm, for the reasons that follow.

The record shows that the parties were divorced in Fulton County in June 2007. Pursuant to the decree, the parties shared joint legal custody of their minor children, but the mother had primary physical custody. In July 2010, the mother filed a petition in Clayton County, the father’s county of residence, seeking a modification of child support and contempt. The father answered and counterclaimed, requesting a change of custody of the minor children and child support, and a motion for contempt. Following a two-day hearing, the trial court entered an order based “upon evidence submitted [at the hearing],” finding that neither party was in contempt, modifying physical custody of the children from the mother to the father, and ordering the mother to pay child support. This appeal followed.

1. The mother argues that the trial court erred by considering the father’s counterclaim for custody. We disagree.

2 Whether the father could seek a custody modification in the form of a counterclaim in the mother’s Clayton County action against him to modify child support and for contempt, as well as whether the mother waived her right to challenge this procedure, are legal issues.1 When a question of law is at issue, as here, we review the trial court’s decision de novo.2

34 In Georgia, “after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.”3 No custody modification complaint “shall be made: (1)[a]s a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or (2)[i]n response to any other action or motion seeking to enforce a child custody order.”4

[T]he language of OCGA § 19–9–23 is clear[,] unequivocal[,] and … mandatory [,] and … therefore a counterclaim seeking a change of custody in an action brought by the custodial parent in the county of the noncustodial parent’s residence is improper because (1) it is not a separate action and (2) it is not brought in the county of the custodial parent’s residence.5

“The defenses of lack of personal jurisdiction and improper venue [, however,] clearly may be waived, even in child custody cases.”6

Here, the mother did not file any pretrial written objection to venue or jurisdiction with regard to the father’s counterclaim for custody, and because there is no transcript of the bench trial7 or an authorized substitute,8 any objection she may have made at trial is not contained in the record on appeal.9 The mother bear[s] the burden of showing harmful error on appeal, and [she] must show this by the record, not merely by assertions appearing in [her] briefs or enumerations of error. Therefore, in the absence of a transcript, we must assume the trial court’s findings were supported by the evidence and the trial court’s actions during the trial were appropriate. Further, a presumption of regularity of all proceedings in a court of competent jurisdiction exists….10

Because the record does not show that the mother objected to the trial court’s consideration of the father’s counterclaim for custody before or during the trial, we must affirm the trial court’s ruling on this issue.11

2. The mother also argues that the Clayton County Superior Court was without jurisdiction to consider the parties’ motions for contempt because the divorce judgment was entered in Fulton County. This argument is without merit.

It has long been the rule in this state, as in other jurisdictions, that an application for contempt must be filed in the court which rendered the order or judgment in question. In divorce cases, this means that, generally speaking, a contempt application must be filed in the superior court which entered the divorce decree. The reason for this rule has been set forth succinctly as follows: The theory upon which the right of a court to punish for contempt is, that every court has power to compel obedience to its judgments, orders, and processes. It necessarily follows that only the court offended has power to punish for the contempt or to entertain proceedings to that end.12

There is an exception, however, to this rule:

We find it necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court. We now hold that where a superior court other than the superior court rendering the original divorce decree acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree.13

Further, “[w]here a nonresident voluntarily institutes a suit in a county in this State[, she] submits [herself], for all purposes of that suit, to the jurisdiction of the courts of the county in which the suit is pending.”14

Here, the mother filed a petition to modify child support in Clayton County, where the father resides. She also included a motion for contempt in the same action, and the father filed a counterclaim for contempt. Thus, “there is no dispute that the [Clayton] County court properly acquired jurisdiction to modify the divorce decree, independent of the contemporaneous motion for contempt. Accordingly, the [Clayton] County court also acquired jurisdiction to punish a contempt of the original decree,” and the trial court did not err by ruling on the parties’ motions for contempt.15

Judgment affirmed.

McFADDEN and BOGGS, JJ., concur.

All Citations

321 Ga.App. 841, 743 S.E.2d 505, 13 FCDR 1621

Footnotes

1

See Bailey v. Bailey, 283 Ga.App. 361, 362, 641 S.E.2d 580 (2007).

2

See Curtis v. Klimowicz, 279 Ga.App. 425, 426(1), 631 S.E.2d 464 (2006).

3

(Emphasis supplied.) OCGA § 19–9–23(a). The Supreme Court of Georgia has explained that “[t]his statute was enacted by the Legislature to curtail the practice [of] allowing the noncustodial parent to relitigate custody in his own jurisdiction.” Kapur v. Roach, 272 Ga. 767, 768, 534 S.E.2d 420 (2000).

4

OCGA § 19–9–23(c).

5

(Citations, punctuation, and footnotes omitted.) Bailey, 283 Ga.App. at 362–363, 641 S.E.2d 580, citing Jones v. Jones, 256 Ga. 742, 743, 352 S.E.2d 754 (1987).

6

Daust v. Daust, 204 Ga.App. 29, 31, 418 S.E.2d 409 (1992).

7

The Clerk of the Clayton County Superior Court indicates that there was not a transcript filed in the trial court.

8

See OCGA § 5–6–41(g).

9

The mother argues for the first time in her reply brief on appeal that she was not aware that the trial court was considering modifying custody as to the parties’ younger son until after the conclusion of the trial. We note, however, that this assertion was not made in the mother’s two post-trial motions in which she objected to venue and jurisdiction with regard to the father’s counterclaim for custody modification. In any event, the lack of a transcript requires us to affirm.

10

(Citation and punctuation omitted.) West v. Austin, 274 Ga.App. 729, 618 S.E.2d 662 (2005).

11

See, e.g., Ganny v. Ganny, 238 Ga.App. 123, 125(2), 518 S.E.2d 148 (1999) (mother waived her venue challenge to the father’s counterclaim for custody by failing to raise it until closing argument, after evidence was introduced on the issue); Houston v. Brown, 212 Ga.App. 834, 443 S.E.2d 3 (1994) (mother waived challenge to counterclaim for modification of custody by failing to move to dismiss until after the conclusion of the trial and a temporary order was issued).

12

(Punctuation omitted.) Ford v. Hanna, 292 Ga. 500, 502, 739 S.E.2d 309 (2013), quoting Jacob v. Koslow, 282 Ga. 51, 52, 644 S.E.2d 857 (2007).

13

(Punctuation omitted.) Ford, 292 Ga. at 503, 739 S.E.2d 309 citing Buckholts v. Buckholts, 251 Ga. 58, 61(1), 302 S.E.2d 676 (1983).

14

Biddinger v. Fletcher, 224 Ga. 501, 504, 162 S.E.2d 414 (1968).

15

Ford, 292 Ga. at 505, 739 S.E.2d 309. See also Corbett v. Corbett, 236 Ga.App. 299, 301–302, 511 S.E.2d 633 (1999).

End of Document© 2017 Thomson Reuters. No claim to original U.S. Government Works.

 

Sep 28 17

Harassing Communications, In Brief

by merlin

There is very little case law on this issue yet, as the law was only codified in 2015, the conduct which it addresses having been previously prosecuted under different statutes, including terroristic threats and harassing telephone calls.  However, with the advent of text messaging and e-mail as a common means of contact, and since said contact often walks a fine line between threatening as a consequence of said contact versus making overt threats, it is a logical extension.

 

The law itself is found at Section 16-11-39.1 of the Official Code of Georgia, and reads as follows:

“(a) A person commits the offense of harassing communications if such person:

(1) Contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person;

(2) Threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic communication;

(3) Telephones another person and intentionally fails to hang up or disengage the connection; or

(4) Knowingly permits any device used for telecommunication, e-mail, text messaging, or any other form of electronic communication under such person’s control to be used for any purpose prohibited by this subsection.

(b) Any person who commits the offense of harassing communications shall be guilty of a misdemeanor.

(c) The offense of harassing communications shall be considered to have been committed in the county where:

(1) The defendant was located when he or she placed the telephone call or transmitted, sent, or posted an electronic communication; or

(2) The telephone call or electronic communication was received.

(d) Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.

(e) This Code section shall not apply to constitutionally protected speech.”

 

Notice that the burden it discusses is that it must be proven that the person made the communication(s) “for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person”.

 

Because there is a scarcity of cases discussing the topic, perhaps the most informative appellate case on the topic is Nosratifard v. State, 320 Ga.App. 564 (Ga. App. 2013).  It actually dealt with Aggravated Stalking arising from violation of an existing protective order, but the points of law that it made (such as the fact that even one repetition of conduct that is forbidden by a stalking order would be repeated enough to trigger criminal penalties).  The case is below

“Sharon Lee Hopkins, for Appellant.

Penny Alane Penn, Dist. Atty., for Appellee.

McMILLIAN, Judge.

        Shahrokh Nosratifard appeals from the trial court’s denial of his motion for a new trial following his conviction on five counts of aggravated stalking based on five text messages sent to Karen Maxie. On appeal, Nosratifard asserts that the evidence was insufficient to support his convictions and further argues that the trial court erred in failing to merge the counts involving texts that occurred as part of a continuous course of conduct or conversation. Because we find that the evidence was sufficient to support Nosratifard’s convictions and that his convictions were not subject to merger, we affirm.

        “On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.)Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). This Court neither weighs the evidence nor determines the credibility of witnesses, but rather considers only whether, after viewing the evidence in the light most favorable to the jury’s verdict, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation, punctuation and footnote omitted.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

        So viewed, the evidence at trial showed that Karen Maxie met Nosratifard online in 2004, and they began a relationship. By 2006, Nosratifard “was practically living with [her].” During this time Maxie helped finance Nosratifard’s cabinet business. But by 2007, the relationship had deteriorated, and by May 2008, Maxie decided to end the relationship due to Nosratifard’s “mental abuse.” She said this abuse included possessiveness, watching her home, searching her home without consent, running a background check on her and threatening to distribute intimate pictures of her to her family, co-workers and the community in which she lived. When Maxie told Nosratifard that the relationship was over, he “exploded” and said that he would never let her go.

        Although Nosratifard never stayed at Maxie’s house again, he called her continuously and “pled and begged and screamed and cussed” for her to give him a second chance. Maxie said she kept talking to him and trying to persuade him that it would be better for them to be friends because she wanted to “do whatever it [took] to keep from provoking him, and I felt like if I got him to be friends that sooner or later he would get the message and leave me alone, but he never did.”

        On the few occasions when she agreed to meet Nosratifard, the meetings did not go well. One meeting in August 2008 occurred after Nosratifard demanded that Maxie get her belongings from his cabinet shop. Maxie’s adult daughter went with her to the shop, and became upset with Nosratifard’s treatment of her mother during the meeting. She shook her finger in Nosratifard’s face and told him to leave her mother alone. On the way home, Nosratifard called Maxie on her cell phone to complain about her daughter’s behavior and to threaten her family. The next day, Maxie and her children discovered that seven tires on their cars had been slashed. Maxie and Nosratifard met later in a public parking lot, and Nosratifard told Maxie that he had slashed the tires on her children’s cars. Maxie reported these incidents to the police.

        In January 2009, Nosratifard called Maxie repeatedly, screaming, cursing, and demanding that she return everything that he had ever bought for her. Maxie contacted police to report Nosratifard’s continuing behavior and subsequently obtained a Temporary Protective Order (“TPO”). On the day she obtained the TPO, Nosratifard called her beginning at 5:00 a.m. and continued throughout the day, even after the order was issued. Maxie decided to meet Nosratifard at a gas station on the way home from court to give him the things he wanted, hoping that would satisfy him. But he became upset and began tossing things around, so Maxie got in her car and drove away. A few days later, Maxie noticed Nosratifard following her to work at around 4:30 a.m., and she called and asked him to stop. In February 2009, a hearing was held on her request to extend the TPO, but after Nosratifard agreed to leave her alone, the judge denied her request.

        The next day, Maxie saw Nosratifard parked in an overlook near her house as she was driving home. He motioned her over, and she stopped because she was afraid of what might happen if she did not. Nosratifard gloated about beating her in court, and told her that she needed to get the TPO cleared from his record, or he was going to show her “what revenge is all about.” Later that month, Maxie saw Nosratifard again parked in the overlook. He waved her over, but she did not stop. He followed her, passing three vehicles to get directly behind her, and flashed his lights on and off signaling her to stop. Maxie called 911 to report his behavior. Maxie felt threatened by Nosratifard’s behavior. In February 2009, she installed a security fence, security lights and a camera at her home; she also purchased a gun and a dog.

        Maxie and her daughter began shopping in an adjacent county to avoid Nosratifard, but on March 1, 2009, they observed a white truck following them and were able to get the tag number. Police later identified the truck as a vehicle rented by Nosratifard. Two days later, on March 3, 2009, Maxie saw Nosratifard standing beside his truck, which, once again, was parked in the overlook.1 He tried to wave her over, but she kept driving. When Maxie saw Nosratifard pass a car so he could be directly behind her, she called police. He repeatedly closed in on her car, and she was afraid that he was going to hit her. When they came to a stop light, Nosratifard started to get out of his car, but the light changed to green, and Maxie sped off, taking a left turn from the right lane. Nosratifard pulled beside her car and began shaking his finger and screaming obscenities at her. She pulled into a gas station, and when police arrived Nosratifard was placed under arrest for aggressive driving.2 Maxie obtained a second TPO the next day. While Nosratifard was in jail, Maxie and her children all changed their cell phone numbers.

        Nosratifard posted bond for his release on or about March 9, 2009, and one of the special conditions of his bond order provided:

        The Defendant shall stay away, absolutely, directly or indirectly, by person, telephone, e-mail, messenger or any other means of communication from KAREN MAXIE hereinafter referred to as “victim.” That includes, but is not limited to, the victim’s home, school, and place of business or routes of travel to or from those locations. Violations connected with contacting/following the victim may subject the Defendant to a separate prosecution for the felony offense of Aggravated Stalking.

        Although Maxie and her family had been receiving text messages they believed to be from Nosratifard since 2008, they received no texts while Nosratifard was in jail on the driving charge. But after Nosratifard bonded out of jail, Maxie and her children began receiving hang-up calls on their home phone number. They did not recognize the numbers showing on the caller ID for these calls. In addition, they began receiving text messages on their cell phones from numbers they did not recognize. Maxie and her children testified that from the spelling, choppy English, certain phrases and the content of the texts, they believed that Nosratifard was sending these texts. For example, one text included the language “we need to talk face to face,” which Maxie and her son identified as a phrase Nosratifard used repeatedly. Another text states, “ask your mamy [sic] she knows,” and Maxie and her children testified that Nosratifard often referred to Maxie as her children’s “mammy” because he thought she babied them. Other texts referred to Maxie’s reports to the police, and Nosratifard was aware that Maxie had reported his actions to the police. Another text referred to voice recordings of phone messages from Nosratifard that Maxie had given police.

        The police were present when Maxie received some of these texts. Deputy Sheriff Brian Sadler of the Forsyth County Sheriff’s Office arrived at Maxie’s house at 8:19 p.m. on April 2, 2009,3after she notified police that she was receiving harassing phone calls. He observed that Maxie was extremely nervous and frightened. The house phone rang continuously, approximately 10 to 15 times while Sadler was there, and she was receiving text messages. At 8:32 p.m., she received the text at issue in Count IV, which stated, “I know you will show all off [sic] this text to the police but don’t because more trouble for you.” Because this text referred to the police within minutes after Sadler entered Maxie’s house, he became concerned that Nosratifard was keeping the house under surveillance. He called for back-up and searched outside, but the police did not locate anyone.

        When Investigator Matthew Starr of the Forsyth County Police Department attempted to trace the phone numbers from which the hang-up calls and text messages were sent, he discovered that most of the messages and calls came from prepaid phones,4 for most of which no provider could be identified, and thus he was unable to connect Nosratifard with any of those phone numbers. However, he was able to trace one of the numbers from the hang-up calls to a pay phone located approximately five to ten minutes from Nosratifard’s cabinet shop.

        Nosratifard was arrested on April 28, 2009 and charged with the five counts of aggravated stalking, arising out of five text messages sent to Maxie’s phone between March 21 and April 15, 2009. Maxie and her children received no further text messages after Nosratifard was arrested on these charges.

        1. Nosratifard asserts that the evidence was insufficient to support his convictions because the State produced only circumstantial evidence to prove that he sent the texts and failed to exclude every other reasonable hypothesis except that of his guilt. Nosratifard points to testimony from Maxie’s son that in October 2008, he received a large amount of texts and hang-up calls, which he attributed to Nosratifard, but Maxie’s son conceded that Nosratifard was at Maxie’s house in connection with his cabinet business when some of these calls and texts were received. Nosratifard also points to evidence that two Hispanic males were caught on the security camera slashing the tires on Maxie’s and her children’s cars in February 2009.5 He argues that this evidence demonstrates that someone else could have been harassing Maxie and her children.

         Nosratifard is correct that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24–4–6.6 But “the proved facts need exclude only reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else.” (Citation and punctuation omitted; emphasis in original.) Prather v. State, 293 Ga.App. 312, 313(1), 667 S.E.2d 113 (2008). And it is well settled that

        questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Citation omitted.) Robbins v. State, 269 Ga. 500, 501(1), 499 S.E.2d 323 (1998). “The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind.” (Citation omitted.) Giles v. State, 211 Ga.App. 594, 595(1), 440 S.E.2d 48 (1993).

       To prove that Nosratifard was guilty of aggravated stalking, the State was required to show

        (1) that a protective order prohibited [Nosratifard] from engaging in certain conduct with respect to [Maxie]; (2) that [Nosratifard] followed [Maxie], placed her under surveillance, or contacted her without her consent; (3) that such an act violated the protective order; and (4) that such an act was done for the purpose of harassing and intimidating [Maxie].

(Citation omitted.) Louisyr v. State, 307 Ga.App. 724, 728(1), 706 S.E.2d 114 (2011). See also OCGA § 16–5–91(a).

 

         Nosratifard’s March 9, 2009 bond order prohibited him from communicating with Maxie by telephone or any other means. Text messages clearly would be a prohibited form of communication in violation of the bond order, and the texts at issue were sent after the order was issued. Although the State was not able to connect Nosratifard directly to any of the numbers used to send these texts, Maxie and her children testified that the texts contained phrases often used by Nosratifard, references to information known by Nosratifard, and “broken English” similar to that employed by Nosratifard. Moreover, the text messages stopped when Nosratifard was in jail on the driving charge, resumed when he bonded out and stopped completely when he was arrested on the charges in this case. The jury considered the evidence cited by Nosratifard, which related to actions prior to the entry of the bond order, and determined that Nosratifard sent the text messages in this case. Because this finding “is not insupportable as a matter of law or outside the proven facts, we shall not disturb it.” (Citations omitted.) Giles v. State, 211 Ga.App. at 595(1), 440 S.E.2d 48.

         The State was also required to prove that Nosratifard sent the texts for the purpose of harassing and intimidating Maxie. The definition of “harassing and intimidating” in this context is found under the stalking statute, OCGA § 16–5–90(a)(1), and it involves four factors of its own:

        (1) a knowing and willful course of conduct directed at [Maxie] (2) which causes emotional distress by placing [Maxie] in reasonable fear for her safety (3) by establishing a pattern of harassing and intimidating behavior, and (4) which serves no legitimate purpose. OCGA § 16–5–90(a)(1).

(Punctuation omitted.) Burke v. State, 297 Ga.App. 38, 41–42, 676 S.E.2d 766 (2009). The evidence at trial supported a finding of a long and clear pattern of knowing and wilful, harassing and intimidating behavior by Nosratifard directed at Maxie for no legitimate purpose. The text messages themselves, sent on three separate days, establish such a pattern. And this evidence combined with Nosratifard’s other threatening behavior and Maxie’s testimony that she was so scared she felt compelled to undertake security measures was more than sufficient to establish the last element of the crime of aggravated stalking as to each count of the indictment.

 

        Thus, “[e]ven though there was no direct evidence that defendant committed the crime, we conclude that the evidence meets the standard set forth in Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560,] in that a rational trier of fact could find proof of guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.” (Citation omitted.) Giles v. State, 211 Ga.App. at 595–596(1), 440 S.E.2d 48.

         2. Nosratifard also argues that the trial court should have merged Count I, involving a text sent on March 21, 2009 at 6:56 p.m., with Count II, involving a text sent the same day at 7:18 p.m., for sentencing because they “are part and parcel of the same criminal act.” He makes the same contention as to Count III, involving a text sent April 2, 2009 at 7:08 p.m., and Count IV, involving a text sent the same day at 8:32 p.m., because he asserts that they were sent as part of an ongoing conversation that began at 6:43 p.m. that day.7

         “The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime. Whether offenses merge is a legal question, which we review de novo.” (Citations and punctuation omitted.) Louisyr v. State, 307 Ga.App. at 730(2), 706 S.E.2d 114. But even if we were to assume that the texts sent on the same day were part of a continuous course of conduct, merger would not necessarily be required under the facts of this case. Rather, “whether a course of conduct can result in multiple violations of the same statute … requires a determination of the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” (Footnotes omitted.) State v. Marlowe, 277 Ga. 383, 384(1), 589 S.E.2d 69 (2003).8 “Accordingly, the starting point must be the statute itself.” Id.

       OCGA § 16–5–91(a) provides:

        A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17–6–110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, good behavior bond, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

        Based upon the plain language of the statute, the prohibited conduct is following, placing under surveillance, or contacting another person without consent in violation of one of the enumerated orders or conditions for the purposes of harassing or intimidating that person. Thus, under the facts of this case, the unauthorized act of contacting Maxie in violation of the condition of the bond order forms the proper “unit of prosecution” under OCGA § 16–5–91(a). This interpretation is consistent with this Court’s prior decisions holding that “[e]ven a single violation of a [bond] order may violate OCGA § 16–5–91(a) if that violation is part of a pattern of harassing and intimidating behavior.” Brooks v. State, 313 Ga.App. 789, 792(1), 723 S.E.2d 29 (2012), citing Louisyr v. State, 307 Ga.App. at 729(1), 706 S.E.2d 114 (rejecting argument that aggravated stalking requires a pattern of violating a protective order).

        Nosratifard points to nothing in the record to indicate that the texts at issue in Counts I and II, sent on March 21, were part of any ongoing conversation with Maxie or anyone else. Rather, they represent two separate contacts with Maxie in violation of the special condition in his bond order, and the trial court correctly refused to merge them.

        Although the evidence does demonstrate that the text messages referenced in Counts III and IV are two of fifteen texts sent to Maxie on April 2, we find that they are separate contacts in violation of the aggravated stalking statute. The record shows that Nosratifard initiated the contact on April 2 to both Maxie and her daughter, who were sitting beside each other when they received the text. That text read simply, “What’s up?” and the daughter decided to respond on her phone to try to get Nosratifard to incriminate himself. Maxie testified, however, that she did not respond to any of the texts because she was too afraid. As the exchange of texts progressed, Nosratifard was apparently on notice that the person responding was not Maxie because at 6:52 p.m., he directed the other person to “ask your mamy[;] she knows,” although some of the other texts in the conversation appear to be directed to Maxie. The evidence indicates that Nosratifard sent the text message at issue in Count III at 7:08 p.m. to both Maxie and her daughter. 9 Nosratifard and Maxie’s daughter continued exchanging messages until the last message came from Nosratifard at 8:55 p.m.

        The evidence also shows that Nosratifard separately sent the text message at issue in Count IV, which referenced the police, to Maxie at 8:32 p.m. while Deputy Sadler was there. And that text does not appear in the text messages taken from the daughter’s phone. The evidence supports a finding, therefore, that the text message in Count IV was not part of any ongoing conversation, but was a separate and independent contact with Maxie. Thus, each of the texts at issue constituted a separate violation of Nosratifard’s bond order and each supported a separate charge of aggravated stalking.

        Accordingly, we find no error in the trial court’s decision not to merge any of the counts for sentencing. See Louisyr v. State, 307 Ga.App. at 731(2), 706 S.E.2d 114 (merger not required for one count of aggravated stalking based upon defendant’s following victim to hotel and second count based upon his attempt to enter her hotel room in violation of protective order). See also Smith v. State, 290 Ga. 768, 773–774(3), 723 S.E.2d 915 (2012) (finding no merger required for five counts of attempting to elude a police officer where defendant led police “on a dangerous high speed chase after being given clear signals by five separate police vehicles to stop” because unit of prosecution under OCGA § 40–6–395 was act of fleeing from an individual police vehicle or officer after being given the signal to stop by that vehicle or officer);

      Ledford v. State, 289 Ga. 70, 71–72(1), 709 S.E.2d 239 (2011) (three counts of aggravated battery did not merge where each count was predicated on a different injury and thus different conduct by the defendant and testimony of pathologist showed that each injury was caused by separate blows to the victim’s body); Eskew v. State, 309 Ga.App. 44, 48–49(4), 709 S.E.2d 893 (2011) (no merger required for two counts of aggravated battery where one count charged defendant with violently shaking six-month-old baby and second count charged defendant with fracturing his skull where expert testified that there must have been some kind of impact to the child’s head in addition to the shaking to account for the fractured skull). Compare Gonzales v. State, 298 Ga.App. 821, 824(1), 681 S.E.2d 248 (2009) (merger required for two counts of aggravated battery arising out of single act of pushing victim out of a moving car); McKee v. State, 275 Ga.App. 646, 651(5), 621 S.E.2d 611 (2005) (criminal conduct constituted a single course of conduct spanning several days, not a separate offense of cruelty to children for each day, where unit of prosecution was causing a child excessive physical or mental pain and statute did not define crime temporally).

        Judgment affirmed.

BARNES, P.J., and McFADDEN, J., concur.

——–

Notes:

        1. Earlier the same day, Maxie’s son saw Nosratifard following him when he left school for a work program, although the son was able to lose him when he turned into a school parking lot.

        2. Nosratifard was convicted of this charge in October 2009.

        3. The texts at issue in Counts III and IV were received on April 2.

        4. Starr described a prepaid phone as “basically an untraceable phone,” with no means of tracing it through records to a specific individual.

        5. Maxie and her children did not recognize the individuals shown on the tape. And Maxie testified that Nosratifard often hired Hispanic workers at his shop.

        6. Although this statute was repealed by Ga. L. 2011, p. 99, § 2 as of January 1, 2013, it was in effect at the time of Nosratifard’s trial. In any event, OCGA § 24–14–6 of the current evidentiary code contains identical language.

        7. The text message in Count V was sent on April 15, 2009 at 7:53 p.m., again at 7:56 p.m. and again at 9:09 p.m.

        8. “Because the instant case does not involve two distinct statutory provisions, the ‘required evidence’ test does not apply.” (Citation omitted.) Smith v. State, 290 Ga. 768, 773(3) n. 4, 723 S.E.2d 915 (2012). See also Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

        9. That text read, “I want to help you trust me. I am not that scarry [sic] am I?” Maxie felt the use of the word “scary” also helped Maxie identify Nosratifard as the sender because he used to tell her that people found him scary, and she also used to tell him that he had scary facial expressions.”

Aug 16 17

Redacted Domestic Violence Temporary Protective Order Answer

by merlin

As is my practice, when I have filed a document, I typically post a redacted copy of that document here on this site.  I do this to assist both fellow practitioners (who may find something useful, or who may shed better light on the flaws in a document) and persons facing a situation that it sheds some light on.

 

The Georgia Code provides for the issuance of a Domestic Violence Restraining Order at Section 19-13-4.  The law is below:

“(a) The court may, upon the filing of a verified petition, grant any protective order or approve any consent agreement to bring about a cessation of acts of family violence. The court shall not have the authority to issue or approve mutual protective orders concerning paragraph (1), (2), (5), (9), or (11) of this subsection, or any combination thereof, unless the respondent has filed a verified petition as a counter petition pursuant to Code Section 19-13-3 no later than three days, not including Saturdays, Sundays, and legal holidays, prior to the hearing and the provisions of Code Section 19-13-3 have been satisfied. The orders or agreements may:

(1) Direct the respondent to refrain from such acts;

(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;

(3) Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties’ child or children;

(4) Award temporary custody of minor children and establish temporary visitation rights;

(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent’s eviction has not been ordered;

(6) Order either party to make payments for the support of a minor child as required by law;

(7) Order either party to make payments for the support of a spouse as required by law;

(8) Provide for possession of personal property of the parties;

(9) Order the respondent to refrain from harassing or interfering with the victim;

(10) Award costs and attorney’s fees to either party; and

(11) Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.

(b) A copy of the order shall be issued by the clerk of the superior court to the sheriff of the county wherein the order was entered and shall be retained by the sheriff as long as that order shall remain in effect.

(c) Any order granted under this Code section shall remain in effect for up to one year; provided, however, that upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this Code section to an order effective for not more than three years or to a permanent order.

(d) A protective order issued pursuant to this Code section shall apply and shall be effective throughout this state. It shall be the duty of every superior court and of every sheriff, every deputy sheriff, and every state, county, or municipal law enforcement officer within this state to enforce and carry out the terms of any valid protective order issued by any court under the provisions of this Code section.”

I am especially interested in subsection (a)(10), in which the Court may “[a]ward costs and attorney’s fees to either party”.  When the filing is frivolous, this seems very appropriate.  

The following is a redacted Answer to a Domestic Violence TPO.  Note that it must be responded to within seven (7) days!

ANSWER TO PETITION FOR TEMPORARY PROTECTIVE ORDER,

MOTION FOR SANCTIONS, AND MOTION TO DISMISS

 

            COMES NOW Respondent XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Answer to Petition for Temporary Protective Order, Motion for Sanctions, and Motion to Dismiss in response to the misleading, redundant, and maliciously harmful Temporary Restraining Order that Petitioner has sought against XXXXX XXXXX, and in support thereof states the following:

IMMEDIATE RESPONSE TO FRAUDULENT PETITION

1.

            XXXXX XXXXX is suffering from déjà vu, because this is remarkably similar to Petitioner’s actions two years ago, when the issue of child custody was first litigated between the parties and Petitioner brought an ex parte Temporary Protective Order against him at that time to prevent him from seeing his child.  Similar to the situation that occurred last time, this can easily be shown to be fraudulent in every way and motivated not by fear for her safety but by transparent child custody motivations.  In support thereof, Respondent attaches a copy of the Petition for Temporary Protective Order that Petitioner sought at that time hereto as Exhibit “A”.  Noticeably, there is an incredible similarity between the two, even using the same threat in each document (“over his dead body”), so that Petitioner could remove the child of the parties from his care and custody using a falsely-obtained process of law.

2.

            Attached hereto and incorporated herein as Exhibit “B” is a copy of the Order as to Legitimation, Custody, and Support entered by the Superior Court of XXXXX County on the XXth day of XXXXX, 20XX, which specifically places the final decision as to all disagreements between the parties in child custody matters addressed by their agreement with Respondent.  The present Temporary Protective Order being sought arose following a dispute between the parties about Petitioner’s refusal to attend “orientation” (see Paragraph 4 of Petition for Temporary Protective Order), a dispute that concerns the entry of the child of the parties into a formal educational facility described in Paragraph A a) of Exhibit “B”.  However, as Petitioner informed Respondent, preschool is not mandatory, though she relied on this paragraph when bringing the police to his residence to forcibly take the child from his custody, prior to unilaterally cancelling her attendance at preschool without consulting Respondent.

3.

            Following the requisite hearing on this issue and the review of the parties’ proof, this Court should not hesitate to pursue all available charges against Tammy Head for the crime of false swearing, given that she has expressly lied to the Superior Court Judge that issued this Petition, and both incarceration and fines should be Ordered for her disingenuous actions against XXXXX XXXXX.

ITEMIZED ANSWER OF RESPONDENT

4.

            Respondent ADMITS that jurisdiction and venue for this action lies in White County, but DENIES each and every one of the other allegations made in the Petition for Temporary Protective Order, specifically denying that his telephone call to her described in Paragraph 4 of that document contained threats to her and further denying that he ever said he would kill her.  Though admittedly not valid evidence due to lack of consent, Respondent has recorded all telephone conversations with Petitioner given her established pattern of blatant falsehoods.  He has reviewed the conversation in question, and no such threats were ever made.

5.

            The statement made by Petitioner in Paragraph 5 of the Petition for Temporary Protective Order is hereby DENIED.

6.

            The allegations made by Petitioner in Paragraph 5 of the Petition for Temporary Protective Order is hereby ADMITTED.

Section 19-9-3(a)(1) of the Official Code of Georgia states that “[i]n all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother.“  In this case, however, the matter of custody has been judicially-established, and the terms that govern it are clear.  Petitioner’s behavior is indefensible. 

7.

The Domestic Violence Temporary Protective Order being sought by Petitioner arises directly from the Stalking Protective Order provided for by the Georgia Code, and is a specialized form of that law.  O.C.G.A. § 16-5-94(d) provides the Court with the power to do the following in the course of these proceedings:

(1)  Direct a party to refrain from such conduct;

 (2)  Order a party to refrain from harassing or interfering with the other;

 (3)  Award costs and attorney’s fees to either party; and

 (4) Order either or all parties to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of stalking.”

            This recommendation was not acted on in the petition filed and subsequently dismissed in XXXXX 20XX, but it would be appropriate to do this now.  She lied, and she did so knowingly, willfully, and maliciously.

Section 19-13-56(b) excuses the officers whose assistance was falsely obtained from being held liable, but each and every one of these potential forms of relief are appropriate against Petitioner for her behavior.  She violated a verified petition and enlisted the assistance of a Superior Court Judge in her perjury and she wrongfully took a child out of a safe environment to instead keep that child living under her thumb in a sordid and unhealthy situation. 

8.

            Section 16-5-94(d)(3) permits the Court “to award attorney’s fees and costs to either party” (emphasis supplied), and the action of Petitioner have necessitated substantial and diligent action by undersigned counsel.  The undersigned has agreed to this representation in addition to an action for modification of custody being initiated by Respondent in XXXXX County because it directly pertains to that representation.  This representation would not have been necessary but for the petty and fraudulent actions of Petitioner.  The undersigned hereby requests that he be paid attorney’s fees of $1,000, representing approximately five hours, and that a reasonable amount be assessed for costs against Petitioner.  The undersigned will gladly provide an itemized statement of work performed to the Court to substantiate this request, if such is deemed necessary.

            WHEREFORE, Respondent requests the following relief:

 

  • For the Court to dismiss the temporary protective order directed by it against Respondent;

 

 

  • For an Order granting $1,000 in attorney’s fees against Petitioner and in favor of the undersigned directly;

 

 

  • For an Order granting reasonable costs related to and arising from this action to Respondent and against Petitioner; and

 

 

  • For such other and further relief as the Court in its discretion deems fit to grant.

 

Respectfully submitted, this XXth day of XXXXX, 20XX.

 

Aug 9 17

Venue in Georgia for Child Custody Modification

by merlin

The proper venue for an action to modify child custody rights, including physical custody as well as legal custody, is an issue that is controlled by statute in Georgia, under the Intrastate Jurisdiction Act.

 

OCGA Section 19-9-23 [Action to Change Legal Custody] reads as follows:

“(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.

(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.

(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:

(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or

(2) In response to any other action or motion seeking to enforce a child custody order.

(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.” (emphasis supplied)

 

The issue of which party is the “legal custodian” of the child is controlled by reference to the custody agreement (or existing law, where such is unavailable) which should designate the party that is responsible.

Jul 17 17

ABA Blog Submission Form

by merlin

Now is the time for submission to the ABA’s Web 100 Amici, which are sites that get special recognition for content, user interest, and other reasons from the American Bar Association.  It’s an annual competition, and I am always interested in nominations!  I have embedded the link above, so it is a little easier if you should decide to nominate this or a different site.

 

Jul 17 17

Registries Aren’t Voluntary Probation Conditions, So Therefore…

by merlin

If a registry, such as the Sex Offender Registry, is not a voluntarily agreed-to condition of a sentence (as probation would be), they are necessarily only justified by the idea that they further a necessary goal of the criminal justice system.  In this case, the goal is one of public notification and deterrence.  If there is no voluntary agreement, would it not be logical that there must be a factual basis for continued Registration?

 

The case below is Goode v. Nobles, 271 Ga. 30, 518 S.E.2d 122 (Ga. 1999), which discusses the validity of a waiver of extradition as a condition of probation, upholding it because, while the legislation authorizing it is cloaked in a presumption of legal validity, the justification for it comes from the voluntary agreement by the person to probation in exchange for incarceration.  Logically, this same argument wouldn’t be available for a person on a Registry, and any such condition would necessarily require a factual basis for their continuing inclusion beyond the fact of their underlying conviction.

 Leaphart & Johnson, J. Alvin Leaphart, Jesup, for appellant.

        Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

        BENHAM, Chief Justice.

        Pursuant to a negotiated plea of guilty to one count each of “menacing” and assault in Colorado, Ronnie Eugene Goode was sentenced to four years of probation. Upon his request, he was permitted to serve that probation in Georgia. Shortly after Goode returned to Georgia, his wife, the victim of the Colorado offenses, demanded that he move out of the marital home, which he did. Although his Georgia probation officer instructed Goode to avoid contact with his wife after moving out, Goode returned at her invitation, but then had an altercation with her. That altercation ultimately served as the basis for a complaint for revocation of his probation and the issuance of an arrest warrant, both in Colorado. After Goode’s arrest in Georgia on that warrant, a Governor’s warrant was issued in response to a request from Colorado. Goode filed a petition for a writ of habeas corpus. Following a hearing at which Goode stipulated that the Governor’s warrant was in order and that he was the person sought, the trial court denied the petition and ordered Goode’s return to Colorado. This appeal is from that order. 1

        Among the findings made by the trial court in its order denying Goode’s petition for habeas corpus is that Goode had waived extradition to Colorado. Support for that finding is found in a document signed by Goode in which he requested that he be permitted to be supervised as a probationer in Georgia. In that document appears the following sentence: “I hereby waive extradition to the sending state from any state of the United States and also agree that I will not contest any effort by any jurisdiction to return me to the sending state.” Goode does not contest the fact that he signed the waiver of extradition, but contends the waiver is ineffective because it was not voluntary in that the alternative to signing the waiver was to be held hostage by the State of Colorado.

        Goode was not a hostage held by the State of Colorado, but was instead a person convicted of a crime in that State who was permitted as a matter of the grace of that State to serve his sentence on probation rather than in prison. Gehl v. People, 161 Colo. 535, 539, 423 P.2d 332 (1967). Georgia, too, views probation as a matter of grace, upon the granting of which conditions may be imposed.

“[A] person occupies a special status while on probation, during which time his private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances. The rationale for this power is basically, of course, that the person has been convicted of a crime and would be serving a sentence but for the grace of the court.” [Cit.]

        Staley v. State, 233 Ga.App. 597, 599, 505 S.E.2d 491 (1998). When the grace Colorado had granted Goode was extended to permit him to serve his period of probation in his home state, it required from him the reciprocal promise that he would return without protest to Colorado in the event he was summoned there. We do not agree with Goode that his promise to return was involuntary because he could not have returned to Georgia had he not given it.

In some instances a condition of probation involves a waiver of a defendant’s rights including those protected by state or federal constitutions. However, the conditions of probation are not imposed involuntarily, but are accepted by convicted criminals as a condition necessary to avoid incarceration in the penitentiary. [Cit.] Whether the waiver of rights required under the condition of probation amounts to an abuse of discretion depends upon whether it is “related to a legitimate purpose underlying the criminal justice system… [or whether defendant’s loss] of rights relates in a rational way to the purpose underlying the sentencing objective, to prevent his involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence.” [Cits.]

        Tuttle v. State, 215 Ga.App. 396(2), 450 S.E.2d 863 (1994). See also Mann v. State, 154 Ga.App. 677, 269 S.E.2d 863 (1980) (submission to polygraph examination valid condition);Parkerson v. State, 156 Ga.App. 440, 274 S.E.2d 799 (1980) (banishment from county valid condition); Biddy v. State, 138 Ga.App. 4, 225 S.E.2d 448 (1976) (restitution valid condition).

        We consider for the first time in this case whether a waiver of extradition may validly be imposed as a condition under which probation is granted or modified favorably to the probationer. That the waiver is “`related to a legitimate purpose underlying the criminal justice system'” (Tuttle, supra at (2), 450 S.E.2d 863) is beyond question in that the state granting probation has an undeniable interest in recalling a probationer to answer to allegations that the probationer has violated the terms of probation. We also note that our General Assembly has obviously concluded that such waivers are valid since it has expressly provided for such waivers as a condition of probation. OCGA § 42-8-35(12). Thus, the waiver is cloaked with the presumption of validity that accompanies all legislation. See Williams v. Ragsdale, 205 Ga. 274, 277, 53 S.E.2d 339 (1949) (“A statute is presumed to be valid and constitutional until the contrary appears….”). Courts in other states have found such waivers valid. People v. Velarde, 739 P.2d 845, 849 (Colo. 1987) (parole); State v. Maglio, 189 N.J.Super. 257, 459 A.2d 1209 (1983); White v. Hall, 15 Md.App. 446, 291 A.2d 694 (1972); Schwartz v. Woodahl, 157 Mont. 479, 487 P.2d 300 (1971);Swyston v. Hedman, 288 Minn. 530, 179 N.W.2d 282 (1970); Pierce v. Smith, 31 Wash.2d 52, 195 P.2d 112 (1948).

        Based on the foregoing, we conclude that a waiver of extradition as a condition of probation, and by extension, as a condition of a modification of probation favorable to the probationer, is valid. Accordingly, the trial court’s finding of the waiver’s validity is affirmed. That being so, issues regarding extradition are moot since proof of the waiver, of Goode’s identity, and of Colorado’s desire for his return sufficed to authorize the trial court to order the surrender of Goode to Colorado.

        Judgment affirmed.

        All the Justices concur.

     

——–

        

Notes:

1. Because the record of this case does not demonstrate that Colorado requested Goode’s return under the Uniform Act for Out-of-State Parole Supervision, we must consider the validity of the waiver under general principles of law rather than the straightforward provisions in that act for the return of probationers and parolees who are serving their sentences in a state other than the sentencing state.

——–

May 28 17

Discovery Should Happen First When Sovereign Immunity Facts are Disputed in 1983 Actions

by merlin

If the issue in a case involving an alleged violation of civil rights by a government agent/employee (such as a police officer or other governmental representative) involves a disputed version of facts (such as a disputed interpersonal conflict, as was the situation in the case below, or – hypothetically – a disputed factual situation, such as occurs in a guilty plea situation that does not provide factual testimony), the essence of the suit brought under 42 USC 1983 turns on the versions of facts that the opposite sides of the dispute present.  Therefore, it is inherently unfair to dismiss the suit under a Sovereign Immunity argument without first verifying that the sovereign did not act improperly, permitting recovery by the allegedly aggrieved party.  To discern whether they have an argument and could conceivably prevail, therefore, it is absolutely necessary that Discovery be permitted to happen.  The scope of the Discovery, plainly, must be narrowly tailored to focus on the question that potentially eliminates sovereign immunity.

The case below is a US Supreme Court case (an opinion by the late Justice Scalia), arising from an Alabama case heard in federal court.  There do not appear to be Georgia cases on point, but this represents the formal stance on the issue, as well as being a good analysis).  This is Anderson v. Creighton, 107 S.Ct. 3034 (1987):

Syllabus

Petitioner, a Federal Bureau of Investigation agent, participated with other law enforcement officers in a warrantless search of respondents’ home. The search was conducted because petitioner believed that one Dixon, who was suspected of a bank robbery committed earlier that day, might be found there, but he was not. Respondents filed a state-court action against petitioner, asserting a claim for damages under the Fourth Amendment. Petitioner removed the suit to Federal District Court and then filed a motion for dismissal or summary judgment, arguing that the Fourth Amendment claim was barred by his qualified immunity from civil damages liability. Before any discovery occurred, the court granted summary judgment on the ground that the search was lawful. The Court of Appeals reversed, holding that the search’s lawfulness could not be determined on summary judgment, because factual disputes precluded deciding as a matter of law that the search was supported by probable cause and exigent circumstances. The court also held that petitioner was not entitled to summary judgment on qualified immunity grounds, since the right he allegedly violated—the right of persons to be protected from warrantless searches of their homes unless the searching officers have probable cause and there are exigent circumstances—was clearly established.

          Held:

          1. Petitioner is entitled to summary judgment on qualified immunity grounds if he can establish as a matter of law that a reasonable officer could have believed that the search comported with the Fourth Amendment even though it actually did not. Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the time the action was taken. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. In order to conclude that the right which the official allegedly violated is “clearly established,” the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. The Court of Appeals which apparently considered only the fact that the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances was clearly established—erred by refusing to consider the argument that it was not clearly established that the circumstances with which petitioner was confronted did not constitute probable cause and exigent circumstances. The relevant question here is the objective question whether a reasonable officer could have believed petitioner’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Petitioner’s subjective beliefs about the search are irrelevant. Pp. 638-641.

          2. There is no merit to respondents’ argument that it is inappropriate to give officials alleged to have violated the Fourth Amendment—and thus necessarily to have unreasonably searched or seized—the protection of a qualified immunity intended only to protect reasonable official action. Such argument is foreclosed by the fact that this Court has previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. Also without merit is respondents’ suggestion that Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411, be overruled by holding that qualified immunity may never be extended to officials who conduct unlawful warrantless searches. Nor is there any merit to respondents’ contention that no immunity should be provided to police officers who conduct unlawful warrantless searches of innocent third parties’ homes in search of fugitives. Pp. 642-646.

          766 F.2d 1269, vacated and remanded.

          SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, POWELL, and O’CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 647.

          Andrew J. Pincus, for petitioner.

    John Patrick Sheehy, Minneapolis, Minn., pro hac vice, by special leave of Court, for respondents.

           Justice SCALIA delivered the opinion of the Court.

          The question presented is whether a federal law enforcement officer who participates in a search that violates the Fourth Amendment may be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment.

I

          Petitioner Russell Anderson is an agent of the Federal Bureau of Investigation. On November 11, 1983, Anderson and other state and federal law enforcement officers conducted a warrantless search of the home of respondents, the Creighton family. The search was conducted because Anderson believed that Vadaain Dixon, a man suspected of a bank robbery committed earlier that day, might be found there. He was not.

          The Creightons later filed suit against Anderson in a Minnesota state court, asserting among other things a claim for money damages under the Fourth Amendment, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1 After removing the suit to Federal District Court, Anderson filed a motion to dismiss or for summary judgment, arguing that the Bivens claim was barred by Anderson’s qualified immunity from civil damages liability. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Before any discovery took place, the District Court granted summary judgment on the ground that the search was lawful, holding that the undisputed facts revealed that Anderson had had probable cause to search the Creighton’s home and that his failure to obtain a warrant was justified by the presence of exigent circumstances. App. to Pet. for Cert. 23a-25a.

          The Creightons appealed to the Court of Appeals for the Eighth Circuit, which reversed. Creighton v. St. Paul, 766 F.2d 1269 (1985). The Court of Appeals held that the issue of the lawfulness of the search could not properly be decided on summary judgment, because unresolved factual disputes made it impossible to determine as a matter of law that the warrantless search had been supported by probable cause and exigent circumstances. Id., at 1272-1276. The Court of Appeals also held that Anderson was not entitled to summary judgment on qualified immunity grounds, since the right Anderson was alleged to have violated—the right of persons to be protected from warrantless searches of their home unless the searching officers have probable cause and there are exigent circumstances—was clearly established. Ibid.

          Anderson filed a petition for certiorari, arguing that the Court of Appeals erred by refusing to consider his argument that he was entitled to summary judgment on qualified immunity grounds if he could establish as a matter of law that a reasonable officer could have believed the search to be lawful. We granted the petition, 478 U.S. 1003, 106 S.Ct. 3292, 92 L.Ed.2d 708 (1986), to consider that important question.

II

          When government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S., at 814, 102 S.Ct., at 2736. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e.g., Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 1096, 89 L.Ed.2d 271 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id., at 344-345, 106 S.Ct., at 1097-1098 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806 2816, 86 L.Ed.2d 411 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012 3017, 82 L.Ed.2d 139 (1984); id., at 198, 104 S.Ct., at 3021 (BRENNAN, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, 457 U.S., at 819, 102 S.Ct., at 2738. Cf., e.g., Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action. Harlow, 457 U.S., at 819, 102 S.Ct., at 2739, assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818, 102 S.Ct., at 2738.

          The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties,” by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, supra, 468 U.S., at 195, 104 S.Ct., at 3019.2 It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell, supra, 472 U.S., at 535, n. 12, 105 S.Ct., at 2820, n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. See, e.g., Malley, supra, 475 U.S., at 344-345, 106 S.Ct., at 1097-1098; Mitchell, supra, 472 U.S., at 528, 105 S.Ct., at 2816; Davis, supra, 468 U.S., at 191, 195, 104 S.Ct., at 3017, 3019.

          Anderson contends that the Court of Appeals misapplied these principles. We agree. The Court of Appeals’ brief discussion of qualified immunity consisted of little more than an assertion that a general right Anderson was alleged to have violated—the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances—was clearly established. The Court of Appeals specifically refused to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did
not constitute probable cause and exigent circumstances. The previous discussion should make clear that this refusal was erroneous. It simply does not follow immediately from the conclusion that it was firmly established that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment that Anderson’s search was objectively legally unreasonable. We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials—like other officials who act in ways they reasonably believe to be lawful—should not be held personally liable. See Malley, supra, 475 U.S., at 344-345, 106 S.Ct., at 1097-1098. The same is true of their conclusions regarding exigent circumstances.

          It follows from what we have said that the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials. But contrary to the Creightons’ assertion, this does not reintroduce into qualified immunity analysis the inquiry into officials’ subjective intent that Harlow sought to minimize. See Harlow, supra, 457 U.S., at 815-820, 102 S.Ct., at 2736-2739. The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.

          The principles of qualified immunity that we reaffirm today require that Anderson be permitted to argue that he is entitled to summary judgment on the ground that, in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the Creightons’ home was lawful.3

III

          In addition to relying on the reasoning of the Court of Appeals, the Creightons advance three alternative grounds for affirmance. All of these take the same form, i.e., that even if Anderson is entitled to qualified immunity under the usual principles of qualified immunity law we have just described, an exception should be made to those principles in the circumstances of this case. We note at the outset the heavy burden this argument must sustain to be successful. We have emphasized that the doctrine of qualified immunity reflects a balance that has been struck “across the board,” Harlow, supra, 457 U.S., at 821, 102 S.Ct., at 2740 (BRENNAN, J., concurring). See also Malley, 475 U.S., at 340, 106 S.Ct., at 1096 (” ‘For executive officers in general, . . . qualified immunity represents the norm.’ ” (quoting Harlow, supra, 457 U.S., at 807, 102 S.Ct., at 2732)).4 Although we have in narrow circumstances provided officials with an absolute immunity, see, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), we have been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials’ duties or the precise character of the particular rights alleged to have been violated. An immunity that has as many variants as there are modes of official action and types of rights would not give conscientious officials that assurance of protection that it is the object of the doctrine to provide. With that observation in mind, we turn to the particular arguments advanced by the Creightons.

          First, and most broadly, the Creightons argue that it is inappropriate to give officials alleged to have violated the Fourth Amendment—and thus necessarily to have unreasonably searched or seized—the protection of a qualified immunity intended only to protect reasonable official action. It is not possible, that is, to say that one “reasonably” acted unreasonably. The short answer to this argument is that it is foreclosed by the fact that we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. See Malley, supra (police officers alleged to have caused an unconstitutional arrest); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (officials alleged to have conducted warrantless wiretaps). Even if that were not so, however, we would still find the argument unpersuasive. Its surface appeal is attributable to the circumstance that the Fourth Amendment’s guarantees have been expressed in terms of “unreasonable” searches and seizures. Had an equally serviceable term, such as “undue” searches and seizures been employed, what might be termed the “reasonably unreasonable” argument against application of Harlow to the Fourth Amendment would not be available—just as it would be available against application of Harlow to the Fifth Amendment if the term “reasonable process of law” had been employed there. The fact is that, regardless of the terminology used, the precise content of most of the Constitution’s civil-liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable, so that the Creightons’ objection, if it has any substance, applies to the application of Harlow generally. We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment. See, e.g., Malley, supra, 475 U.S., at 341, 106 S.Ct., at 1096. Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.

          For the same reasons, we also reject the Creightons’ narrower suggestion that we overrule Mitchell, supra (extending qualified immunity to officials who conducted warrantless wiretaps), by holding that qualified immunity may never be extended to officials who conduct unlawful warrantless searches.

          Finally, we reject the Creightons’ narrowest and most procrustean proposal: that no immunity should be provided to police officers who conduct unlawful warrantless searches of innocent third parties’ homes in search of fugitives. They rest this proposal on the assertion that officers conducting such searches were strictly liable at English common law if the fugitive was not present. See, e.g., Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (K.B.1765). Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the “common-law tradition,” 5 Malley, supra, at 342, 106 S.Ct., at 1096, we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow, where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. See Harlow, 457 U.S., at 815-820, 102 S.Ct., at 2736-2739. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied “across the board.”

          The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. See supra, at 642-643. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. Both the complexity and the unsuitability of this approach are betrayed by the fact that the Creightons’ proposal itself does not actually apply the musty rule that is purportedly its justification but instead suggests an exception to qualified immunity for all fugitive searches of third parties’ dwellings, and not merely (as the English rule appears to have provided) for all unsuccessful fugitive searches of third parties’ dwellings. Moreover, from the sources cited by the Creightons it appears to have been a corollary of the English rule that where the search was successful, no civil action would lie, whether or not probable cause for the search existed. That also is (quite prudently but quite illogically) not urged upon us in the Creightons’ selective use of the common law.

          The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, 468 U.S., at 195, 104 S.Ct., at 3019. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law. We are unwilling to Balkanize the rule of qualified immunity by carving exceptions at the level of detail the Creightons propose. We therefore decline to make an exception to the general rule of qualified immunity for cases involving allegedly unlawful warrantless searches of innocent third parties’ homes in search of fugitives.

          For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.6

          It is so ordered.

          

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

          This case is beguiling in its apparent simplicity. The Court accordingly represents its task as the clarification of the settled principles of qualified immunity that apply in damages suits brought against federal officials. Its opinion, however, announces a new rule of law that protects federal agents who make forcible nighttime entries into the homes of innocent citizens without probable cause, without a warrant, and without any valid emergency justification for their warrantless search. The Court stunningly restricts the constitutional accountability of the police by creating a false dichotomy between police entitlement to summary judgment on immunity grounds and damages liability for every police misstep, by responding to this dichotomy with an uncritical application of the precedents of qualified immunity that we have developed for a quite different group of high public office holders, and by displaying remarkably little fidelity to the countervailing principles of individual liberty and privacy that infuse the Fourth Amendment.1 Before I turn to the Court’s opinion, it is appropriate to identify the issue confronted by the Court of Appeals. It is now apparent that it was correct in vacating the District Court’s award of summary judgment to petitioner in advance of discovery.

I

          The Court of Appeals understood the principle of qualified immunity as implemented in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), to shield government officials performing discretionary functions from exposure to damages liability unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. Applying this principle, the Court of Appeals held that respondents’ Fourth Amendment rights and the “exigent circumstances” doctrine were “clearly established” at the time of the search. Creighton v. St. Paul, 766 F.2d 1269, 1277 (CA8 1985). Moreover, apparently referring to the “extraordinary circumstances” defense left open in Harlow for a defendant who “can prove that he neither knew nor should have known of the relevant legal standard,” 457 U.S., at 819, 102 S.Ct., at 2738, the Court determined that petitioner could not reasonably have been unaware of these clearly established principles of law. Thus, in reviewing the Court of Appeals’ judgment rejecting petitioner Anderson’s claim to immunity, the first question to be decided is whether Harlow v. Fitzgerald requires immunity for a federal law enforcement agent who advances the fact-specific claim that a reasonable person in his position could have believed that his particular conduct would not violate rights that he concedes are clearly established. A negative answer to that question is required, both because Harlow provides an inappropriate measure of immunity when police acts that violate the Fourth Amendment are challenged, and also because petitioner cannot make the showing required for Harlow immunity. Second, apart from the particular requirements of the Harlow doctrine, a full review of the Court of Appeals’ judgment raises the question whether this Court should approve a double standard of reasonableness—the constitutional standard already embodied in the Fourth Amendment and an even more generous standard that protects any officer who reasonably could have believed that his conduct was constitutionally reasonable. Because a careful analysis of the Harlow-related set of questions will be helpful in assessing the Court’s continuing embrace of a double standard of reasonableness, I begin with a discussion of petitioner’s claim of entitlement to Harlow immunity.

II

          Accepting for the moment the Court’s double standard of reasonableness, I would affirm the judgment of the Court of Appeals because it correctly concluded that petitioner has not satisfied the Harlow standard for immunity. The inquiry upon which the immunity determination hinges in this case illustrates an important limitation on the reach of the Court’s opinion in Harlow. The defendants’ claims to immunity at the summary judgment stage in Harlow and in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), were bolstered by two policy concerns that are attenuated in suits against law enforcement agents in the field based on the Fourth Amendment. One was the substantial public interest in allowing government officials to devote their time and energy to the press of public business without the burden and distractions that invariably accompany the defense of a lawsuit. Harlow, 457 U.S., at 816-817, 102 S.Ct., at 2737; Mitchell, 472 U.S., at 524, 105 S.Ct., at 2814. The second underpinning of Harlow was the special unfairness associated with charging government officials with knowledge of a rule of law that had not yet been clearly recognized. Harlow, 457 U.S., at 818, 102 S.Ct., at 2738; Mitchell, 472 U.S., at 535, 105 S.Ct., at 2820.2 Thus, if the plaintiff’s claim was predicated on a principle of law that was not clearly established at the time of the alleged wrong, both of those concerns would favor a determination of immunity not only in advance of trial, but of equal importance, before the time-consuming pretrial discovery process commenced. Concern for the depletion and diversion of public officials’ energies led the Court in Harlow to abolish the doctrine that an official would be deprived of immunity on summary judgment if the plaintiff alleged that the official had acted with malicious intent to deprive his constitutional rights. See, e.g., Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992 1000, 43 L.Ed.2d 214 (1975).

          The Court’s decision today, however, fails to recognize that Harlow’s removal of one arrow from the plaintiff’s arsenal at the summary judgment stage did not also preclude the official from advancing a good-faith reasonableness claim at trial if the character of his conduct as established by the evidence warranted this strategy. The rule of the Harlow case, in contrast, focuses on the character of the plaintiff’s legal claim and, when properly invoked, protects the government executive from spending his time in depositions, document review, and conferences about litigation strategy. Consistently with this overriding concern to avoid “the litigation of the subjective good faith of government officials,” 457 U.S., at 816, 102 S.Ct., at 2737, Harlow does not allow discovery until the issue whether the official’s alleged conduct violated a clearly established constitutional right has been determined on a motion for summary judgment. Id., at 818, 102 S.Ct., at 2738. Harlow implicitly assumed that many immunity issues could be determined as a matter of law before the parties had exchanged depositions, answers to interrogatories, and admissions.3

          The considerations underlying the formulation of the immunity rule in Harlow for Executive Branch officials, however, are quite distinct from those that led the Court to its prior recognition of immunity for federal law enforcement officials in suits against them founded on the Constitution. This observation is hardly surprising, for the question of immunity only acquires importance once a cause of action is created; the “practical consequences of a holding that no remedy has been authorized against a public official are essentially the same as those flowing from a conclusion that the official has absolute immunity.” Mitchell v. Forsyth, 472 U.S., at 538, 105 S.Ct., at 2822 (STEVENS, J., concurring in judgment). Probing the question of immunity raised in this case therefore must begin, not with a rote recitation of the Harlow standard, but with an examination of the cause of action that brought the immunity question now before us into play in the first instance.

          As every student of federal jurisdiction quickly learns, the Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999 2005, 29 L.Ed.2d 619 (1971), held that Bivens had a cause of action against federal agents “to recover money damages for any injuries he has suffered as a result of the agents’ violation of the [Fourth] Amendment.” In addition to finding that no cause of action was available, the District Court in that case had relied on the alternative holding that respondents were immune from liability because of their official position. Because the Court of Appeals for the Second Circuit had not passed on this immunity ruling, we did not consider it. Id., at 397-398, 91 S.Ct., at 2005. On remand, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1348 (1972), the Court of Appeals articulated a dual standard of reasonableness. As an initial matter, the Court rejected the agents’ claim under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), which had recognized immunity for an official who performs “discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.” Id., at 575, 79 S.Ct., at 1341. The Second Circuit wisely noted that it “would be a sorry state of affairs if an officer had the ‘discretion’ to enter a dwelling at 6:30 A.M., without a warrant or probable cause. . . .” 456 F.2d, at 1346. That court nevertheless recognized the need to balance protection of the police from “the demands of every person who manages to escape from the toils of the criminal law” against the “right of citizens to be free from unlawful arrests and searches.” Id., at 1347. According to the Second Circuit, the officer “must not be held to act at his peril”; to obtain immunity he “need not allege and prove probable cause in the constitutional sense.” Id., at 1348. Instead, an agent
should prevail if he could prove “not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable.” Ibid. Thus, an affirmative defense of reasonable good faith was available at trial.4 In contrast, an immunity claim of the Harlow type 5 that would foreclose any trial at all was not available and, in my view, was not appropriate. The strength of the reasonable good-faith defense in any specific case would, of course, vary with the trial evidence about the facts upon which the officer had relied when he made the challenged search or arrest.6

          As the Court of Appeals recognized, assuring police officers the discretion to act in illegal ways would not be advantageous to society. While executives such as the Attorney General of the United States or a senior assistant to the President of the United States must have the latitude to take action in legally uncharted areas without constant exposure to damages suits, and are therefore entitled to a rule of qualified immunity from many pretrial and trial proceedings, quite different considerations led the Second Circuit to recognize the affirmative defense of reasonable good faith in the Bivens case. Today this Court nevertheless makes the fundamental error of simply assuming that Harlow immunity is just as appropriate for federal law enforcement officers such as petitioner 7 as it is for high government officials.8 The doctrinal reach and precedential sweep of this moment of forgetfulness are multiplied because of the interchangeability of immunity precedents between § 1983 suits against state officials and Bivens actions against federal officials. Moreover, for the moment restricting my criticism of the Court’s analysis to the four corners of the Harlow framework, the Court errs by treating a denial of immunity for failure to satisfy the Harlow standard as necessarily tantamount to a ruling that the defendants are exposed to damages liability for their every violation of the Fourth Amendment.9 Such a denial would not necessarily foreclose an affirmative defense based on the Second Circuit’s thesis in Bivens that an officer may not be liable if his conduct complied with a lesser standard of reasonableness than the constitutional standard which it violated. The Court’s failure to recognize that federal agents may retain a partial shield from damages liability, although not necessarily from pretrial and trial proceedings, leads it to the erroneous conclusion that petitioner must have Harlow immunity or else none at all save the Fourth Amendment itself.10

          In Part III, I explain why the latter alternative is appropriate. For now, I assert the more limited proposition that the Court of Appeals quite correctly rejected Anderson’s claim that he is entitled to immunity under Harlow. Harlow does not speak to the extent, if any, of an official’s insulation from monetary liability when the official concedes that the constitutional right he is charged with violating was deeply etched in our jurisprudence, but argues that he reasonably believed that his particular actions comported with the constitutional command. In this case the District Judge granted Anderson’s motion for summary judgment because she was convinced that the agent had probable cause to enter the Creightons’ home and that the absence of a search warrant was justified by exigent circumstances. In other words, the District Judge concluded as a matter of law that there was no substantive constitutional violation. When respondents appealed, petitioner argued that even if the Constitution was violated, he was entitled to immunity because the law defining exigent circumstances was not clearly established when he searched the Creightons’ home.11 In setting aside the order granting summary judgment, the Court of Appeals concluded that many essential factual matters were sharply disputed and that if the Creightons’ version of the incident were accepted, there was neither probable cause nor an exigent-circumstances justification for the search. It was therefore necessary to try the case to find out whether the Fourth Amendment had been violated. Creighton v. St. Paul, 766 F.2d, at 1277. The Court of Appeals’ conclusion that summary judgment on the probable-cause and exigent-circumstances issues was not appropriate in advance of discovery was unquestionably correct.

          The Court of Appeals also was correct in rejecting petitioner’s argument based on the holding in Harlow that the qualified-immunity issue ought to be resolved on a motion for summary judgment before any discovery has taken place. 457 U.S., at 818-819, 102 S.Ct., at 2738.12 The Court of Appeals rejected this argument because it was convinced that the rule of law was clear. It also could have rejected the argument on an equally persuasive ground—namely, that the Harlow requirement concerning clearly established law applies to the rule on which the plaintiff relies, and that there was no doubt about the proposition that a warrantless entry into a home without probable cause is always unlawful.13 The court does not even reach the exigent-circumstances inquiry unless and until the defendant has shown probable cause and is trying to establish that the search was legal notwithstanding the failure of the police to obtain a warrant. Thus, if we assume that the Court of Appeals was correct in its conclusion that probable cause had not been established, it was also correct in rejecting petitioner’s claim to Harlow immunity, either because the exigent-circumstances exception to the warrant requirement was clearly established, or because a warrantless entry into a home without probable cause is always unlawful whether or not exigent circumstances are present.

          In this Court, Anderson has not argued that any relevant rule of law—whether the probable-cause requirement or the exigent-circumstances exception to the warrant requirement was not “clearly established” in November 1983. Rather, he argues that a competent officer might have concluded that the particular set of facts he faced did constitute “probable cause” and “exigent circumstances,” and that his own reasonable belief that the conduct engaged in was within the law suffices to establish immunity. But the factual predicate for Anderson’s argument is not found in the Creightons’ complaint, but rather in the affidavits that he has filed in support of his motion for summary judgment. Obviously, the respondents must be given an opportunity to have discovery to test the accuracy and completeness of the factual basis for the immunity claim. Neither this Court,14 nor petitioner,15 disagrees with this proposition. It is therefore pellucidly clear that the Court of Appeals was correct in its conclusion that the record before it did not support the summary judgment.

          The Court’s decision today represents a departure from the view we expressed two years ago in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We held that petitioner was entitled to qualified immunity for authorizing an unconstitutional wiretap because it was not clearly established that warrantless domestic security wiretapping violated the Fourth Amendment. We added in a footnote:

                    “We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law.” Id., at 535, n. 12, 105 S.Ct., at 2820, n. 12.

          Of course, the probable-cause requirement for an officer who faces the situation petitioner did was clearly established. In addition, an officer’s belief that his particular warrantless search was justified (by exigent circumstances, in this case) is analytically no different from a situation in which the warrant requirement has not been explicitly held to apply to the particular search undertaken by the officer—the precise situation in which, as the Court recognized in Mitchell v. Forsyth, there would certainly be no immunity. The good-faith argument advanced by petitioner might support a judgment in his favor after there has been a full examination of the facts, but it is not the kind of claim to immunity, based on the tentativeness or nonexistence of the constitutional rule allegedly violated by the officer, that we accepted in Harlow or in Mitchell.

III

          Although the question does not appear to have been argued in, or decided by, the Court of Appeals, this Court has decided to apply a double standard of reasonableness in damages actions against federal agents who are alleged to have violated an innocent citizen’s Fourth Amendment rights. By double standard I mean a standard that affords a law enforcement official two layers of insulation from liability or other adverse consequence, such as suppression of evidence. Having already adopted such a double standard in applying the exclusionary rule to searches authorized by an invalid warrant, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Court seems prepared and even anxious in this case to remove any requirement that the officer must obey the Fourth Amendment when entering a private home. I remain convinced that in a suit for damages as well as in a hearing on a motion to suppress evidence, “an official search and seizure cannot be both ‘unreasonable’ and ‘reasonable’ at the same time.” Id., at 960, 104 S.Ct., at 3445-3446.

(STEVENS, J., dissenting).

          A “federal official may not with impunity ignore the limitations which the controlling law has placed on his powers.” Butz v. Economou, 438 U.S. 478, 489, 98 S.Ct. 2894 2902, 57 L.Ed.2d 895 (1978). The effect of the Court’s (literally unwarranted) extension of qualified immunity, I fear, is that it allows federal agents to ignore the limitations of the probable-cause and warrant requirements with impunity. The Court does so in the name of avoiding interference with legitimate law enforcement activities even though the probable-cause requirement, which limits the police’s exercise of coercive authority, is itself a form of immunity that frees them to exercise that power without fear of strict liability. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

          The Court advances four arguments in support of the position that even though an entry into a private home is constitutionally unreasonable, it will not give rise to monetary liability if a reasonable officer could have believed it was reasonable: First, the probable-cause standard is so vague that it is unfair to expect law enforcement officers to comply with it; 16 second, the reasons for not saddling high government officials with the burdens of litigation apply equally to law enforcement officers; 17 third, there is nothing new in the Court’s decision today because “we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment,” ante, at 643, and finally, holding police officers to the constitutional standard of reasonableness would “unduly inhibit officials in the discharge of their duties,” ante, at 638. None of these arguments on behalf of a double standard of reasonableness is persuasive to me.

          Unquestionably, there is, and always has been, some uncertainty in the application of the probable-cause standard to particular cases. It is nevertheless a standard that has survived the test of time both in England and in America. See 2 M. Hale, History of the Pleas of the Crown 150 (1847); J. Jolowicz & T. Lewis, Winfield on Tort 579-580 (8th ed. 1967); Weber, The Birth of Probable Cause, 11 Anglo-Am.L.Rev. 155, 166 (1982). Except in cases in which an officer relies on the fact that a magistrate has issued a warrant, there is no reason to believe that the Court’s newly minted standard will provide any more certainty than the constitutional standard. Indeed, it is worth emphasizing that the probable-cause standard itself recognizes the fair leeway that law enforcement officers must have in carrying out their dangerous work. The concept of probable cause leaves room for mistakes, provided always that they are mistakes that could have been made by a reasonable officer. See 1 W. LaFave, Search and Seizure 567 (2d ed. 1987). I find nothing in this Court’s new standard that provides the officer with any more guidance than the statement in our opinion in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), almost four decades ago:

                    “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Id., at 176, 69 S.Ct., at 1311.

          The suggestion that every law enforcement officer should be given the same measure of immunity as a Cabinet officer or a senior aide to the President of the United States is not compelling. Testifying in court is a routine part of an officer’s job; his or her participation in litigation does not occasion nearly as great a disruption of everyday duties as it would with those of a senior government official. Moreover, the political constraints that deter high government officials from violating the Constitution 18 have only slight, if any, application to police officers, and may actually lead to more, rather than less, vigorous enforcement activity. It is thus quite wrong simply to assume that the considerations that justified the decision in Harlow v. Fitzgerald also justify an equally broad rule of immunity for police officers. As we reasoned in Scheuer v. Rhodes, 416 U.S. 232, 245-247, 94 S.Ct. 1683 1691, 40 L.Ed.2d 90 (1974):

                    “When a court evaluates police conduct relating to an arrest its guideline is ‘good faith and probable cause.’ . . . In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices—whether the formulation of policy, of legislation, or budgets, or of day-to-day decisions—is virtually infinite. . . . [S]ince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.”

          The Court supports its assertion that we have previously extended qualified immunity to officials who are alleged to have violated the Fourth Amendment, ante, at 643, by reference to two cases: Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), which involved a search pursuant to a warrant, and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), in which the plaintiff relied on a rule of law that was not clearly established at the time of the alleged wrong. Neither of these cases supports the proposition that a warrantless search should be evaluated under a standard less strict than the constitutional standard of reasonableness.19 Despite its protestations to the contrary, the Court makes new law today.

          The argument that police officers need special immunity to encourage them to take vigorous enforcement action when they are uncertain about their right to make a forcible entry into a private home has already been accepted in our jurisprudence. We have held that the police act reasonably in entering a house when they have probable cause to believe a fugitive is in the house and exigent circumstances make it impracticable to obtain a warrant. This interpretation of the Fourth Amendment allows room for police intrusion, without a warrant, on the privacy of even innocent citizens. In Pierson v. Ray, 386 U.S., at 555, 87 S.Ct., at 1218, we held that police officers would not be liable in an action brought under 42 U.S.C. § 1983 “if they acted in good faith and with probable cause. . . .” We explained: “Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (CA 8th Cir.1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Ibid.

          Thus, until now the Court has not found intolerable the use of a probable-cause standard to protect the police officer from exposure to liability simply because his reasonable conduct is subsequently shown to have been mistaken. Today, however, the Court counts the law enforcement interest twice 20 and the individual’s privacy interest only once.

          The Court’s double-counting approach reflects understandable sympathy for the plight of the officer and an overriding interest in unfettered law enforcement. It ascribes a far lesser importance to the privacy interest of innocent citizens than did the Framers of the Fourth Amendment. The importance of that interest and the possible magnitude of its invasion are both illustrated by the facts of this case.21 The home of an innocent family was invaded by several officers without a warrant, without the owner’s consent, with a substantial show of force, and with blunt expressions of disrespect for the law and for the rights of the family members. As the case comes to us, we must assume that the intrusion violated the Fourth Amendment. See Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642 1647, 68 L.Ed.2d 38 (1981). Proceeding on that assumption, I see no reason why the family’s interest in the security of its own home should be accorded a lesser weight than the Government’s interest in carrying out an invasion that was unlawful.22 Arguably, if the Government considers it important not to discourage such conduct, it should provide indemnity to its officers. Preferably, however, it should furnish the kind of training for its law enforcement agents that would entirely eliminate the necessity for the Court to distinguish between the conduct that a competent officer considers reasonable and the conduct that the Constitution deems reasonable.23 “Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v. Economou, 438 U.S., at 507, 98 S.Ct., at 2911. On the other hand, surely an innocent family should not bear the entire risk that a trial court, with the benefit of hindsight, will find that a federal agent reasonably believed that he could break into their home equipped with force and arms but without probable cause or a warrant.

IV

          The Court was entirely faithful to the traditions that have been embedded in our law since the adoption of the Bill of Rights when it wrote:

          “The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their          y(3)27 houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] 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 [81 S.Ct. 679, 5 L.Ed.2d 734, (1961)]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381-1382, 63 L.Ed.2d 639 (1980).24

          The warrant requirement safeguards this bedrock principle of the Fourth Amendment, while the immunity bestowed on a police officer who acts with probable cause permits him to do his job free of constant fear of monetary liability. The Court rests its doctrinally flawed opinion upon a double standard of reasonableness which unjustifiably and unnecessarily upsets the delicate balance between respect for individual privacy and protection of the public servants who enforce our laws.

          I respectfully dissent.

1. The Creightons also named other defendants and advanced various other claims against both Anderson and the other defendants. Only the Bivens claim against Anderson remains at issue in this case, however.

2. The dissent, which seemingly would adopt this approach, seeks to avoid the unqualified liability that would follow by advancing the suggestion that officials generally (though not law enforcement officials, see post, at 654, 661-662, and officials accused of violating the Fourth Amendment, see post, at 659-667) be permitted to raise a defense of reasonable good faith, which apparently could be asserted and proved only at trial. See post, at 653. But even when so modified (and even for the fortunate officials to whom the modification applies) the approach would totally abandon the concern—which was the driving force behind Harlow’s substantial reformulation of qualified-immunity principles—that “insubstantial claims” against government officials be resolved prior to discovery and on summary judgment if possible. Harlow, 457 U.S., at 818-819, 102 S.Ct., at 2738. A passably clever plaintiff would always be able to identify an abstract clearly established right that the defendant could be alleged to have violated, and the good-faith defense envisioned by the dissent would be available only at trial.

3. The Creightons argue that the qualified immunity doctrine need not be expanded to apply to the circumstances of this case, because the Federal Government and various state governments have established programs through which they reimburse officials for expenses and liability incurred in suits challenging actions they have taken in their official capacities. Because our holding today does not extend official qualified immunity beyond the bounds articulated in Harlow and our subsequent cases, an argument as to why we should not do so is beside the point. Moreover, even assuming that conscientious officials care only about their personal liability and not the liability of the government they serve, the Creightons do not and could not reasonably contend that the programs to which they refer make reimbursement sufficiently certain and generally available to justify reconsideration of the balance struck in Harlow and subsequent cases. See 28 CFR § 50.15(c) (1987) (permitting reimbursement of Department of Justice employees when the Attorney General finds reimbursement appropriate); 5 F. Harper, F. James, & O. Gray, Law of Torts § 29.9, n. 20 (2nd ed. 1986) (listing various state programs).

4. These decisions demonstrate the emptiness of the dissent’s assertion that “[t]oday this Court makes the fundamental error of simply assuming that Harlow immunity is just as appropriate for federal law enforcement officers . . . as it is for high government officials.” Post, at 654 (footnote omitted). Just last Term the Court unanimously held that state and federal law enforcement officers were protected by the qualified immunity described in Harlow. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). We see no reason to overrule that holding.

5. Of course, it is the American rather than the English common-law tradition that is relevant, cf. Malley, supra, at 340-342, 106 S.Ct., at 1095-1097; and the American rule appears to have been considerably less draconian than the English. See Restatement (Second) of Torts §§ 204, 206 (1965) (officers with an arrest warrant are privileged to enter a third party’s house to effect arrest if they reasonably believe the fugitive to be there).

6. Noting that no discovery has yet taken place, the Creightons renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before Anderson’s summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the Harlow qualified immunity standard is to protect public officials from the “broad-ranging discovery” that can be “peculiarly disruptive of effective government.” 457 U.S., at 817, 102 S.Ct., at 2737-2738 (footnote omitted). For this reason, we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation. Id., at 818, 102 S.Ct., at 2738. See also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 2815, 86 L.Ed.2d 411 (1985). Thus, on remand, it should first be determined whether the actions the Creightons allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. Cf. ibid. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Anderson’s motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson’s qualified immunity.

1. The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

2. This theme also pervades our pre-Harlow opinions construing the scope of official immunity in suits brought under 42 U.S.C. § 1983. Those precedents provide guidance for causes of action based directly on the Constitution, for “it would be ‘untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.’ ” Harlow v. Fitzgerald, 457 U.S., at 818, n. 30, 102 S.Ct., at 2783, n. 30 (quoting Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894 2909, 57 L.Ed.2d 895 (1978)). Accord, Malley v. Briggs, 475 U.S. 335, 340, n. 2, 106 S.Ct. 1092, 1095, n. 2, 89 L.Ed.2d 271 (1986). While it is unfair to expect officials to anticipate changes in the law with a prescience that escapes even the most able scholars, lawyers, and judges, our precedents recognize that qualified immunity is entirely consistent with the requirement that federal officials act in a way that is consistent with an awareness of the fundamental constitutional rights enumerated in the Bill of Rights of the Constitution. In Scheuer v. Rhodes, 416 U.S. 232, 247-248, 94 S.Ct. 1683 1692, 40 L.Ed.2d 90 (1974), we based the qualified immunity of high government officials for official acts upon “the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief.” In Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992 1001, 43 L.Ed.2d 214 (1975), we observed that a standard of “knowledge of the basic, unquestioned constitutional rights” of students “imposes neither an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system.” In O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), we ruled that the immunity inquiry was, in relevant part, whether a state hospital superintendent charged with unconstitutionally confining a patient knew or reasonably should have known that his action would violate the patient’s constitutional rights. And in Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978), the Court wrote:

“Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct ‘cannot reasonably be characterized as being in good faith.’ Wood v. Strickland, 420 U.S., at 322 [95 S.Ct., at 1001].”

Thus, even the immunity of officials whose discretionary duties are broader than those of a law enforcement officer does not extend to conduct which they should have known was contrary to a constitutional norm. Harlow did not change this rule. See 457 U.S., at 819, 102 S.Ct., at 2738. Even if it were appropriate to apply this standard of immunity to law enforcement agents in the field, it should certainly provide no shield for a warrantless nighttime search of a private home that was unsupported by probable cause.

3. “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S., at 818, 102 S.Ct., at 2738. Logically, this reasoning does not extend to cases such as this one in which both the constitutional command and an exception to the rule for conduct that responds to a narrowly defined category of factual situations are clearly established, and the dispute is whether the situation that the officer confronted fits within the category.

4. Cf. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920 1923, 64 L.Ed.2d 572 (1980) (defendant has the burden of pleading good faith as an affirmative defense).

5. “Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”Harlow, 457 U.S., at 818-819, 102 S.Ct., at 2738 (footnotes omitted).

6. The Court of Appeals in Bivens justified the defense on the basis of the need to protect the officer from the hazards associated with trying to predict whether a court would agree with his assessment that a particular set of facts constituted probable cause. The court explained:

“The numerous dissents, concurrences and reversals, especially in the last decade, indicate that even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause, with or without a warrant. As he tries to find his way in this thicket, the police officer must not be held to act at his peril.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1348 (CA2 1972) (citations omitted).

7. “Is it not inferable that the point of the remand [to the Court of Appeals in Bivens ] was to ventilate the question of the possible existence of the kind of qualified privilege the Court of Appeals sustained, rather than the issue of immunity?” P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 1421 (2d ed. 1973).

8. The Court asserts that this assumption merely reflects our holding last Term in Malley v. Briggs, 475 U.S., at 340, 106 S.Ct., at 1095. See ante, at 642, n. 4. The Malley case, however, rejected a police officer’s claim that he was entitled to absolute immunity because he had acted pursuant to an arrest warrant issued by a magistrate. We specifically declined to accept the petitioner’s invitation “to expand what was a qualified immunity at common law into an absolute immunity.” 475 U.S., at 342, 106 S.Ct., at 1097. We concluded that in “the case of the officer applying for a warrant” a rule of qualified immunity based on the Harlow standard would give “ample room for mistaken judgments.” 475 U.S., at 343, 106 S.Ct., at 1097. Our opinion carefully avoided any comment on warrantless searches or the proper application of Harlow in cases in which the claim of “qualified immunity” could not be evaluated in advance of discovery.

9. “But if the test of ‘clearly established law’ were to be applied at this level of generality, . . . [p]laintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability. . . .” Ante, at 639.

10. The Court does not consider the possibility that the “objective reasonableness” of the officer’s conduct may depend on the resolution of a factual dispute. Such a dispute may preclude the entry of summary judgment but, despite the Court’s intimation to the contrary, see ante, at 640, n. 2, should not necessarily prevent a jury from resolving the factual issues in the officer’s favor and thereafter concluding that his conduct was objectively reasonable.

11. He also made this argument in District Court. See Memorandum of Points and Authorities 29, 1 Record A-52.

12. The Harlow standard of qualified immunity precludes a plaintiff from alleging the official’s malice in order to defeat a qualified-immunity defense. By adopting a purely objective standard, however, Harlow may be inapplicable in at least two types of cases. In the first, the plaintiff can only obtain damages if the official’s culpable state of mind is established. See, e.g., Allen v. Scribner, 812 F.2d 426, 436 (CA9 1987); Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 Yale L.J. 126, 136-137 (1985). In the second, an official’s conduct is not susceptible to a determination that it violated clearly established law because it is regulated by an extremely general and deeply entrenched norm, such as the command of due process or probable cause. The principle is clearly established, but whether it would brand the official’s planned conduct as illegal often cannot be ascertained without reference to facts that may be in dispute. See Reardon v. Wroan, 811 F.2d 1025 (CA7 1987) (police officers denied qualified immunity on summary judgment because their conclusion of probable cause could be found objectively unreasonable when the facts are viewed in light most favorable to the plaintiffs); Jasinski v. Adams, 781 F.2d 843 (CA11 1986) (per curiam) (federal agent denied qualified immunity on summary judgment because of genuine issue of probable cause); Deary v. Three Unnamed Police Officers, 746 F.2d 185 (CA3 1984) (police officers denied qualified immunity on summary judgment because of genuine issue of probable cause).

13. The Court’s opinion reveals little, if any, interest in the facts of this case in which the complaint unquestionably alleged a violation of a clearly established rule of law. Instead, the Court focuses its attention on the hypothetical case in which a complaint drafted by a “passably clever plaintiff” is able to allege a “violation of extremely abstract rights.” Ante, at 3039, and n. 2. I am more concerned with the average citizen who has alleged that law enforcement officers forced their way into his home without a warrant and without probable cause. The constitutional rule allegedly violated in this case is both concrete and clearly established.

14. See ante, at 646—647, n. 6.

15. See Brief for Petitioner 33-34, n. 18.

16. “We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment.” Ante, at 644.

17. “Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.” Ibid.

18. “Intense scrutiny, by the people, by the press, and by Congress, has been the traditional method for deterring violations of the Constitution by these high officers of the Executive Branch. Unless Congress authorizes other remedies, it presumably intends the retributions for any violations to be undertaken by political action. Congress is in the best position to decide whether the incremental deterrence added by a civil damages remedy outweighs the adverse effect that the exposure to personal liability may have on governmental decisionmaking. However the balance is struck, there surely is a national interest in enabling Cabinet officers with responsibilities in this area to perform their sensitive duties with decisiveness and without potentially ruinous hesitation.” Mitchell v. Forsyth, 472 U.S. 511, 541, 105 S.Ct. 2806 2823, 86 L.Ed.2d 411 (1985) (STEVENS, J., concurring in judgment).

19. “The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” United States v. Leon, 468 U.S. 897, 924, 104 S.Ct. 3405 3421, 82 L.Ed.2d 677 (1984).

20. “The question whether they had probable cause depends on what they reasonably believed with reference to the facts that confronted them, as the judge instructed in the passage we quoted earlier. To go on and instruct the jury further that even if the police acted without probable cause they should be exonerated if they reasonably (though erroneously) believed that they were acting reasonably is to confuse the jury and give the defendants two bites at the apple.” Llaguno v. Mingey, 763 F.2d 1560, 1569 (CA7 1985) (Posner, J.) (en banc).

21. The Court of Appeals described the search of respondents’ home in some detail. Its opinion reads, in part, as follows:

“Because the case was dismissed on Anderson’s motion for summary judgment, we set out the facts in the light most favorable to the Creightons and draw all inferences from the underlying facts in their favor. Adickes v. Kress & Co., 398 U.S. 144, 158-59 [90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142] (1970). On the night of November 11, 1983, Sarisse and Robert Creighton and their three young daughters were spending a quiet evening at their home when a spotlight suddenly flashed through their front window. Mr. Creighton opened the door and was confronted by several uniformed and plain clothes officers, many of them brandishing shotguns. All of the officers were white; the Creightons are black. Mr. Creighton claims that none of the officers responded when he asked what they wanted. Instead, by his account (as verified by a St. Paul police report), one of the officers told him to ‘keep his hands in sight’ while the other officers rushed through the door. When Mr. Creighton asked if they had a search warrant, one of the officers told him, ‘We don’t have a search warrant [and] don’t need [one]; you watch too much TV.’

“Mr. Creighton asked the officers to put their guns away because his children were frightened, but the officers refused. Mrs. Creighton awoke to the shrieking of her children, and was confronted by an officer who pointed a shotgun at her. She allegedly observed the officers yelling at her three daughters to ‘sit their damn asses down and stop screaming.’ She asked the officer, ‘What the hell is going on?’ The officer allegedly did not explain the situation and simply said to her, ‘Why don’t you make your damn kids sit on the couch and make them shut up.’

“One of the officers asked Mr. Creighton if he had a red and silver car. As Mr. Creighton led the officers downstairs to his garage, where his maroon Oldsmobile was parked, one of the officers punched him in the face, knocking him to the ground, and causing him to bleed from the mouth and the forehead. Mr. Creighton alleges that he was attempting to move past the officer to open the garage door when the officer panicked and hit him. The officer claims that Mr. Creighton attempted to grab his shotgun, even though Mr. Creighton was not a suspect in any crime and had no contraband in his home or on his person. Shaunda, the Creighton’s ten-year-old daughter, witnessed the assault and screamed for her mother to come help. She claims that one of the officers then hit her.

“Mrs. Creighton phoned her mother, but an officer allegedly kicked and grabbed the phone and told her to ‘hang up that damn phone.’ She told her children to run to their neighbor’s house for safety. The children ran out and a plain clothes officer chased them. The Creightons’ neighbor allegedly told Mrs. Creighton that the officer ran into her house and grabbed Shaunda by the shoulders and shook her. The neighbor allegedly told the officer, ‘Can’t you see she’s in shock; leave her alone and get out of my house.’ Mrs. Creighton’s mother later brought Shaunda to the emergency room at Children’s Hospital for an arm injury caused by the officer’s rough handling.

“During the melee, family members and friends began arriving at the Creighton’s home. Mrs. Creighton claims that she was embarrassed in front of her family and friends by the invasion of their home and their rough treatment as if they were suspects in a major crime. At this time, she again asked Anderson for a search warrant. He allegedly replied, ‘I don’t need a damn search warrantwhen I’m looking for a fugitive.’ The officers did not discover the allegedly unspecified ‘fugitive’ at the Creightons’ home or any evidence whatsoever that he had been there or that the Creightons were involved in any type of criminal activity. Nonetheless, the officers then arrested and handcuffed Mr. Creighton for obstruction of justice and brought him to the police station where he was jailed overnight, then released without being charged.” Creighton v. St. Paul, 766 F.2d 1269, 1270-1271 (CA8 1985) (footnote and citation omitted).

22. Because this case involves the rule that should be applied to the conduct of a law enforcement officer employed by the Federal Government, Justice Jackson’s dissenting opinion in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed.2d 1879 (1949), is especially pertinent. He wrote, in part:

“These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Id., at 180, 69 S.Ct., at 1313.

23. The Court’s holding that a federal law enforcement officer is immune if a reasonable officer could have believed that the search was consistent with the Fourth Amendment raises the same difficulties in application as the Court’s creation in United States v. Leon of a good-faith exception to the exclusionary rule when the police officer’s reliance on an invalid warrant was objectively reasonable:

“Suppose, for example, that the challenge is to a search and seizure conducted by an FBI agent. The defendant shows that the agent was required to be aware of, and fully aware of, all relevant fourth amendment law. Would the reasonable reliance inquiry turn on whether a particular FBI agent’s conduct lived up to the standards expected from someone who was apprised of, or should have been apprised of, relevant fourth amendment law? Or is it enough that the agent’s conduct met the lower standard of the average well-trained police officer? . . . If th[e] individualized objective standard is to be the test under Leon, then motions to suppress may well require a far greater expenditure of judicial time than the Court seems to think should be devoted to protecting fourth amendment interests.” Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It A Fair Trial?, 22 Am.Crim.L.Rev. 85, 120 (1984) (footnotes omitted).

24. “It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091 2096, 80 L.Ed.2d 732 (1984) (quotingUnited States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125 2134, 32 L.Ed.2d 752 (1972)).

 
____________________________________________________________________________________________

For what it’s worth, I disagree wholly with Scalia’s conclusions in this case, though I am glad that Discovery can be conducted prior to the ruling on sovereign immunity. I think, though, that the dissent had the right of it when they opined that the rights enshrined in the Fourth Amendment are not Second-Class rights, and that no search should be valid without a warrant.

May 18 17

Search and Seizure on Watercraft and Boats in Georgia Waters, Generally

by merlin

The statute that governs search of watercraft under State law is Section 52-7-25 of the Official Code of Georgia.  In its entirety, it reads as follows (but pay especially close attention to subsection 4, which I have placed in bold letters and underlined for your benefit):

“(a) Any person empowered to enforce this article and any rule or regulation adopted pursuant hereto shall have the authority to stop and board any vessel subject to this article or any such regulation for the purpose of inspection or determining compliance with this article and is empowered to issue a summons for appearance in court or before a magistrate for all violations of this article or of the rules and regulations prescribed hereunder. Vessels of law enforcement personnel shall be marked to identify them as designated enforcement vessels.

(b) An officer empowered to enforce this article shall have the power:

(1) To arrest on view for any violation relating to boating and all rules and regulations prescribed by the board under this article;

(2) To execute all warrants and search warrants for violations of the boat laws and regulations;

(3) To serve subpoenas issued for the examination, investigation, and trial of all offenses against the laws and regulations relating to boats;

(4) To board vessels in use, for purposes of examining any documents and safety equipment, and to search without warrant any vessel which is not at its regular mooring or berth when he believes that any law of this state or any rule or regulation of the Board of Natural Resources relating to boating has been violated;

(4.1) To board vessels in use or floating, whether moored or not, for purposes of examining any marine toilets, holding tanks, and documents related to them, including records of pump-out and certificates of compliance, and to search without warrant any such vessel to determine compliance with the provisions of this article related to marine toilets when the officer believes that any of said provisions of this article relating to marine toilets have been violated;

(5) To detain the vessel and arrest the operator of a suspected stolen vessel;

(6) To enter upon any land or water in the performance of his duty;

(7) To demand and secure proper assistance in case of emergency;

(8) To exercise the powers and duties of peace officers; and

(9) To investigate any boating accident which occurs on the waters of this state.

(c) Every vessel subject to this article if underway and upon being hailed by a designated law enforcement officer shall stop immediately and lay to or shall maneuver in such a way as to permit the officer to come aboard.

(d) Any person employed or elected by this state or a political subdivision thereof, whose duty it is to preserve the peace or to make arrests or to enforce the law, including, but not limited to, members of the sheriffs’ departments, state patrolmen, and conservation rangers, are empowered to enforce this article. The Department of Natural Resources shall be primarily responsible for enforcement of this article and the rules and regulations issued under this chapter.

(e) It shall be unlawful for any person to resist or interfere by force, menace, threat, or in any other manner with any arrest for violation of this article. It shall also be unlawful for any person to refuse to go with any law enforcement officer of this state after an arrest has been made or to interfere with the officer in the performance of his duty.

(f) The department is authorized and empowered to identify by appropriate signs and markers those public waters in which certain activities may be prohibited or restricted.”

Several treatises have addressed this phenomenon, also.  Specifically, Daniels’ Georgia Criminal Trial Practice, by Jack Goger, in the December 2016 update, states the following information regarding the Georgia watercraft statute:

“In Jackson v. State,8 the Georgia Court of Appeals held that O.C.G.A. § 52-7-25(b)(4) clearly authorized an enforcement officer of the Georgia Department of Natural Resources to stop a boat on Lake Lanier. The court declined to consider the stop under Terry standards and pointed out that the officer need not suspect wrongdoing. Such an officer is authorized “to make investigatory stops of watercraft for the sole purpose of verifying that the operator has the proper documentation and safety equipment. . . . [T]he boating public does not necessarily have the same expectation of privacy on regulated waterways as does the motoring public.” In Peruzzi v. State,9 the Supreme Court turned back a constitutional challenge to the statute noting that Georgia now “joins a growing list of states that recognize the legitimacy of suspicionless boat safety inspections and their minimal impact on the privacy of boaters.””

One year after the Jackson case, described above, was decided, the Court of Appeals heard the case of Dalton v. State, 216 Ga.App. 411, 454 S.E.2d 554 (Ga. Ct. App. 1995), which was notable because the Court specifically described the statute as Constitutional (this issue was discussed very briefly in the Jackson case):

        “Winship E. Rees, Lawrenceville, for appellant.

        Jerry Rylee, Sol., Inez G. D’Entremont, Asst. Sol., Gainesville, for appellee.

        Michael J. Bowers, Atty. Gen., Robert S. Bomar, Isaac Byrd, Sr. Asst. Attys. Gen., Atlanta, amici curiae.

       BIRDSONG, Presiding Judge.

        Jerry Wayne Dalton appeals his conviction for boating under the influence of alcohol. He contends his boat was unlawfully stopped on Lake Lanier because the evidence showed the Department of Natural Resources’ rangers randomly stopped his boat without probable cause or reasonable suspicion that he had committed an offense. Held:

        The record shows that the rangers stopped the boat to conduct a safety inspection and only thereafter suspected that Dalton was under the influence. Dalton was then administered a breath test and two hours after he was stopped his blood alcohol content was .11 grams percent.

        Dalton asserts that the rangers stopped his boat without probable cause to conduct an inspection under OCGA § 52-7-25(a): “Any person empowered to enforce this article and any rule or regulation adopted pursuant hereto shall have the authority to stop and board any vessel subject to this article or any such regulation for the purpose of inspection or determining compliance with this article.” Dalton contends that randomly stopping boats under this article was unconstitutional because police cannot randomly stop and inspect automobiles under Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660.

        As Dalton challenged the constitutionality of OCGA § 52-7-25(a), this court transferred the appeal to the Supreme Court. The Supreme Court, however, returned the appeal to this court. As the Supreme Court returned this case to this court, there is no constitutional issue for resolution. “The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.” Krause v. Vance, 207 Ga.App. 615, 622, 428 S.E.2d 595.

        Therefore, the only issue for resolution by this court is whether the stop was lawful. As the evidence shows the stop of Dalton’s boat was authorized by OCGA § 52-7-25(a), the trial court correctly denied Dalton’s motion to suppress.

        Judgment affirmed.

        BLACKBURN and RUFFIN, JJ., concur.”

May 10 17

42 USC § 1983 or the Georgia Tort Claims Act?

by merlin

Someone facing victimization at the hands of a State actor has two possible avenues available for repairing their situation, depending on the nature of the harm that was done to them.  If it is something in the nature of a violation of their Constitutional rights, such as a Due Process violation, then 42 USC § 1983 is the proper vehicle.  If, on the other hand, the harm done was instead generally a non-Constitutional tort in nature, such as a vehicular collision by a State-run vehicle, or a theft by a State employee, the Georgia Tort Claims Act is implicated.  This issue was discussed in great detail in the 2007 Court of Appeals of Georgia case, Nichols v. Prather, 286 Ga.App. 889:

Hall, Booth, Smith & Slover, W. Scott Henwood, Atlanta, Phillip E. Friduss, for Appellant.

Weaver & Weaver, George W. Weaver, Atlanta, Davis, Kreitzer, Kemp, Joiner & Melton, John W. Davis, Jr., Rossville, F. Gregory Melton, Edmond & Jones, Craig T. Jones, Landrum & Friduss, Ellen L. Ash, Atlanta, David A. Webster, for appellees.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Devon Orland, Sr. Asst. Attys. Gen., amici curiae.

        ELLINGTON, Judge.

        Pickens County Deputy Sheriff Nicholas Nichols, Sheriff Billy Wofford, and Pickens County appeal from the denial of their motion to dismiss or, in the alternative, for summary judgment in this personal injury and wrongful death case. The appellants contend that the trial court erred in denying their motion, arguing that the Pickens County Sheriff’s Department is a state agency or department and, therefore, the department and its employees are entitled to the protections of the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq. They also argue that they were entitled to other statutory immunities. For the following reasons, we reverse the denial of summary judgment to Pickens County, but affirm the remainder of the court’s judgment.

        “On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.” (Citation omitted.) Brown v. Taylor, 266 Ga.App. 176, 596 S.E.2d 403 (2004). So viewed, the evidence showed the following relevant facts.

        Just after midnight on the morning of July 7, 2002, the decedent, Terri Prather, walked from the Blue Rodeo Café in Jasper toward her car, which was parked in a lot on the other side of the highway. There was no crosswalk in the immediate area. At the same time, Pickens County Sheriff’s Deputy Nicholas Nichols was driving down the highway in a marked patrol car. Deputy Nichols was driving approximately 75 mph in a 50 mph speed zone, was traveling in the center turn lane, and had not activated his siren or blue lights. According to Deputy Nichols, by the time he saw Ms. Prather in the highway in front of his car, he was unable to avoid striking her. There is no evidence that Deputy Nichols applied his brakes before the collision. Ms. Prather died as a result of the impact. The title to Deputy Nichols’ patrol car listed the Pickens County Sheriff’s Department as the owner, and the county carried liability insurance on the car.

        Ms. Prather’s widower, individually and as administrator of the decedent’s estate, filed a personal injury and wrongful death suit against Deputy Nichols, individually and in his official capacity as a Pickens County Deputy Sheriff. He also sued the Pickens County Sheriff, Billy Wofford, in his official capacity under a theory of respondeat superior, and the county, alleging that Deputy Nichols was acting as the county’s agent. The appellants moved to dismiss the suit or, in the alternative, for summary judgment, arguing that Deputy Nichols and Sheriff Wofford were immune from liability under the GTCA, that the county could not be held liable for Sheriff Wofford’s or Deputy Nichols’ acts, that the county had not waived its sovereign immunity, and that Deputy Nichols was entitled to official immunity. After a hearing,1 the trial court denied the motion. The trial court issued a certificate of immediate review, and this Court granted the appellants’ application for interlocutory review.

         1. The appellants claim that the Pickens County Sheriff’s Department is a state department or agency and, therefore, the department and its employees are subject to the provisions of the GTCA.2 They argue that the sheriff and his employees act on behalf of the state, not the county, and that the sheriff’s department is a separate entity from the county. The appellants argue that, as a result, the court should have granted their motion for summary judgment because Prather failed to give the required ante litem notice for claims that are subject to the GTCA. See OCGA § 50-21-26 (notice provisions for a claim against the state). In addition, the appellants argue that Deputy Nichols, as an employee of the sheriff’s department, cannot be held individually liable under the GTCA, so the trial court should have granted summary judgment on the claim against Deputy Nichols in his individual capacity. See OCGA § 50-21-25(a), (b) (state employees who commit torts while acting within the scope of their employment are not personally liable for their torts, and suits alleging torts by state employees must name the employer as the defendant, not the employee).

        In claiming that the Pickens County Sheriff’s Department, Sheriff Wofford, and Deputy Nichols are state entities, officers, or employees subject to the GTCA, the defendants primarily rely on this Court’s decision in Brown v. Dorsey, 276 Ga.App. 851, 625 S.E.2d 16 (2005), in which this Court held that DeKalb County was not liable under 42 USC § 19833 for Sheriff Sidney Dorsey’s coordination of the murder of Sheriff-elect Derwin Brown.4 Brown states that, in order to state a claim against DeKalb County under § 1983, Brown’s widow had to allege that a “County policymaker’s acts or omissions, done under color of state law,” resulted in a deprivation of Brown’s federal civil rights.5 Id. at 853, 625 S.E.2d 16. In other words, in order to recover under § 1983, she had to prove that, “through a deliberate and official policy, the local governmental entity was the moving force behind the constitutional tort.” (Footnote omitted.) Id. We then noted that sheriffs are elected constitutional officers, not employees of county commissions, and, therefore, counties lack control over their respective sheriffs’ departments and have no authority to alter the departments’ policies, even if those policies are unconstitutional. Id. at 855(1), 625 S.E.2d 16. We held that the question of whether a sheriff is a “policy-maker” for the county for purposes of holding the county liable for his actions under § 1983 must be assessed in light of the particular function in which he was engaged when taking such actions and by the allegations of the complaint. Id. at 856(1), 625 S.E.2d 16. Ultimately, we determined that Dorsey was not acting as a “policymaker” for DeKalb County when he used his department’s personnel and resources to kill Derwin Brown, so the county could not be held liable for Dorsey’s violation of Brown’s constitutional rights under § 1983. Id. at 856-857(1), 625 S.E.2d 16.

        The appellants argue that, pursuant to Brown and the Eleventh Circuit cases, Georgia’s sheriffs are always state actors, not county actors. Brown and the federal cases are inapplicable to the instant case, however, because they involved the issue of immunity from liability for a sheriff’s violations of the federal civil rights statute, 42 USC § 1983. In contrast, this case involves the sheriff’s liability under the doctrine of respondeat superior for his deputy’s negligence under Georgia’s tort laws, as well as the county’s liability under an agency theory. Further, contrary to the appellants’ arguments, the cases upon which they rely do not hold that Georgia’s sheriffs are always state officers, but stand for the proposition that, depending on the circumstances, sheriffs may be deemed state agents for the purpose of determining liability for constitutional violations under § 1983. None of the cases hold that Georgia’s sheriffs and their employees are “state officer[s] or employee[s]” under the GTCA.

        Instead, under the plain language of the Georgia Constitution and the GTCA, sheriffs are county officials, not state officers or employees. The Georgia Constitution specifically states that sheriffs are “county officers” who are elected by the voters of their respective counties, not through a statewide vote. Ga. Const. of 1983, Art. IX, Sec. I, Par. III(a). Further, the GTCA’s definition of “State” specifically excludes counties and “other units of local government.” OCGA § 50-21-22(5). It follows that the GTCA’s definition of “State officer or employee” excludes county officers and employees, and “State government entity” excludes county agencies and departments. OCGA § 50-21-22(6), (7).

        Moreover, since issuing our decision in Brown, this Court has decided Freeman v. Barnes, 282 Ga.App. 895, 640 S.E.2d 611 (2006), in which it considered whether the Fulton County sheriff was both a state and county employee for the purposes of the Workers’ Compensation Act, OCGA § 34-9-1 et seq. In Freeman, this Court distinguished Brown and found that the sheriff was a county officer under the Act, because sheriffs are defined as county officers in the Georgia Constitution, county officers are paid solely and exclusively from county treasuries, and each county commission funds its respective sheriff’s department. Id. at 899-900(2), 640 S.E.2d 611. Similarly, in this case, it is undisputed that Pickens County paid the salaries of the sheriff and his employees, provided their health insurance and retirement benefits, and funded the sheriff’s department.

        Accordingly, based upon the Georgia Constitution, the GTCA, and Freeman, we conclude that Sheriff Wofford is a county official, that neither the sheriff nor his employees are “[s]tate officer[s] or employee[s]” under the GTCA, and that the sheriff’s department is not a “state government entity” under the GTCA. Therefore, the appellants are not entitled to summary judgment on the basis that Prather failed to comply with the notice provisions of the GTCA.

        2. Having decided that the GTCA does not apply in this case, we turn to the issue of whether Sheriff Wofford and Deputy Nichols can be held liable in their official capacities for the decedent’s injuries. This issue is controlled by the Supreme Court of Georgia’s decision in Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994). In Gilbert, the Court held that a suit against a sheriff who is sued in his official capacity under respondeat superior6 for an employee’s negligent performance of official functions (either ministerial or discretionary acts) is essentially a suit against the county. Id. at 746(2), n. 4, 452 S.E.2d 476; see also Seay v. Cleveland, 270 Ga. 64, 65(1), 508 S.E.2d 159 (1998) (accord). In such circumstances, the sheriff is entitled to the county’s defense of sovereign immunity, but may be held liable under OCGA § 33-24-517 for an employee’s negligent use of a motor vehicle to the extent the county has waived its sovereign immunity by the purchase of automobile liability insurance. Gilbert v. Richardson, 264 Ga. at 754(7), 452 S.E.2d 476. Similarly, this Court has ruled that a deputy who is sued in his official capacity for his allegedly negligent use of a county-owned patrol car is entitled to the county’s sovereign immunity, but that the sovereign immunity is waived under OCGA § 33-24-51 to the extent the county purchased automobile liability insurance on the car. Standard v. Hobbs, 263 Ga.App. 873, 878(2), 589 S.E.2d 634 (2003).

        The appellants argue, however, that OCGA § 33-24-51 does not apply to the sheriff’s department or its employees. They rely on two Court of Appeals cases for the proposition that the purchase of liability insurance did not waive the sovereign immunity of two county school systems and the systems’ employees. See Crisp County School System v. Brown, 226 Ga.App. 800, 487 S.E.2d 512 (1997) (parent sued her daughter’s teacher and the county school system after the child fell off the monkey bars during gym class); Davis v. Dublin City Bd. of Ed., 219 Ga.App. 121, 464 S.E.2d 251 (1995) (parent sued her son’s principal and the county board of education after the child tripped on a rug and fell through a glass door at school). Neither of those cases, however, involved the use of an automobile that was covered by liability insurance, so the cases are clearly distinguishable from the instant case. In fact, in Crisp County School System v. Brown, we specifically distinguished Gilbert on the basis that the waiver of sovereign immunity provided by OCGA § 33-24-51 pertained only to automobile liability insurance purchased by the county and that no such insurance was involved in the Crisp County case. Further, as shown in the previous paragraph, the appellants’ argument conflicts with binding precedent from both the Supreme Court and this Court. Therefore, this argument lacks merit.

        Accordingly, Sheriff Wofford and Deputy Nichols were not entitled to summary judgment on Prather’s claims against them in their official capacities, because they could be held liable to the extent that the county waived its sovereign immunity by the purchase of automobile liability insurance, pursuant to OCGA § 33-24-51.

        3. The appellants contend that the trial court improperly denied summary judgment to Pickens County. They argue that the county cannot be held liable for Deputy Nichols’ acts under an agency theory, because the deputy was an employee of the sheriff’s department, not the county. Although the county’s liability insurer will necessarily pay for any judgment against Sheriff Wofford and Deputy Nichols in their official capacities in this case,8 we agree that it is improper to name Pickens County as a defendant in this suit.

        As this Court has held, “[d]eputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge. They have no duties save alone duties of the sheriff, which as his deputy and his agent they are by law authorized to perform. The sheriff, and not the county, is liable for the misconduct of his deputies.” (Citation and punctuation omitted.) Brown v. Jackson, 221 Ga.App. 200, 201(2), 470 S.E.2d 786 (1996). Therefore, the county cannot be held vicariously liable for Deputy Nichols’ alleged negligence. Lowe v. Jones County, 231 Ga.App. 372, 373(2), 499 S.E.2d 348 (1998); Brown v. Jackson, 221 Ga.App. at 201(2), 470 S.E.2d 786. Consequently, the trial court erred in denying summary judgment to Pickens County.

        4. Finally, the defendants argue that, even if the GTCA does not apply in this case, Deputy Nichols was performing a discretionary act at the time he collided with the decedent; that is, he was patrolling the area and looking for intoxicated drivers. Therefore, they contend that Deputy Nichols was entitled to official immunity from personal liability and that the trial court should have granted summary judgment to him on that basis.

        Generally, governmental employees who are sued in their individual capacities for discretionary acts performed within the scope of their employment are entitled to official immunity. Ga. Const.1983, Art. I, Sec. II, Par. IX(d); Gilbert v. Richardson, 264 Ga. at 752(6), 452 S.E.2d 476; Brown v. Taylor, 266 Ga.App. at 176-177, 596 S.E.2d 403; Standard v. Hobbs, 263 Ga.App. at 875(1), 589 S.E.2d 634.

        The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

        (Citation and punctuation omitted.) Standard v. Hobbs, 263 Ga.App. at 875(1), 589 S.E.2d 634.

        A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

        (Citation and punctuation omitted.) Id. “Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.” (Citation and punctuation omitted.) Brown v. Taylor, 266 Ga.App. at 177, 596 S.E.2d 403 (noting that the definition of “discretionary function” found in the GTCA does not apply to county employees because they fall outside the scope of the GTCA).

        Although the question of whether a governmental employee is entitled to official immunity is a question of law that must ultimately be decided by the trial court, when the relevant facts concerning the employee’s behavior at the time of the alleged tort are in dispute, the court cannot resolve the factual issues on a motion for summary judgment. Outlaw v. Nasworthy, 250 Ga.App. 362, 364(1), 551 S.E.2d 785 (2001). Instead, a jury must resolve the conflicts in the facts. Id. The trial court may then determine whether the employee’s acts were discretionary or ministerial and, thus, whether the employee is entitled to official immunity. Id.

        Under the facts presented in this case, a jury issue remains as to what Deputy Nichols was doing at the time he collided with Prather. See Outlaw v. Nasworthy, 250 Ga.App. at 364(1), 551 S.E.2d 785 (finding that a jury issue existed regarding the police officer’s actions at the time he arrested the plaintiff); McLemore v. City Council of Augusta, 212 Ga.App. 862, 865(4), 443 S.E.2d 505 (1994) (finding that a jury issue existed regarding the officer’s actions that led to the collision). Once the factual issues are resolved, the trial court can then determine whether Deputy Nichols is entitled to official immunity. Outlaw v. Nasworthy, 250 Ga.App. at 364(1), 551 S.E.2d 785; see McLemore v. City Council of Augusta, 212 Ga.App. at 865(4), 443 S.E.2d 505 (noting that “if [the officer] was responding to an emergency call of [another] officer his allegedly negligent act would be discretionary in nature; however, if he had returned to routine patrol his conduct would be considered ministerial in nature”) (citation omitted); see also Gilbert v. Richardson, 264 Ga. at 752(6), 452 S.E.2d 476 (finding that a deputy sheriff was exercising discretion when she rushed to back up another officer in response to an emergency call and, therefore, was immune from personal liability); Logue v. Wright, 260 Ga. 206, 207-208(1), 392 S.E.2d 235 (1990) (deputy’s decision to rush to the scene of a fight was a discretionary act for which he was immune from liability, even if he acted negligently by failing to activate his lights or siren).

        Accordingly, Deputy Nichols was not entitled to summary judgment on the basis of official immunity for Prather’s claims against him in his individual capacity.9

        Judgment affirmed in part, and reversed in part.

        ANDREWS, P.J., and ADAMS, J., concur.

—————

Notes:

1. There is no hearing transcript in the record.

2. The GTCA provides that the “state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment.” OCGA § 50-21-23(a). The GTCA also provides, however, that the state’s sovereign immunity is not waived for liability arising from the performance or failure to perform a discretionary function by a state officer or employee. OCGA § 50-21-24(2).

3. Under 42 USC § 1983, a person who acts under the color of law to deprive another of the “rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”

4. The defendants also rely upon two Eleventh Circuit cases: Manders v. Lee, 338 F.3d 1304, 1328(V) (11th Cir.2003) (finding that the Sheriff of Clinch County functioned as an arm of the state in establishing use-of-force training policies, that he was entitled to Eleventh Amendment immunity for those particular functions, and, therefore, he could not be sued by a Georgia citizen in federal court for 42 USC § 1983 federal rights violations without the state’s permission), and Grech v. Clayton County, 335 F.3d 1326, 1347-1348(V) (11th Cir.2003) (finding that Clayton County had no control over the sheriff’s policies or his use of computer-based warrant information and, therefore, the county could not be held liable for the sheriff’s negligence in using the system, which allegedly resulted in a § 1983 violation).

5. See Mladek v. Day, 293 F.Supp.2d 1297, 1303(I)(B) (M.D.Ga.2003) (“Section 1983 does not impute vicarious liability upon local governments for the unconstitutional conduct of their employees. To establish local government liability, Plaintiffs must establish that the constitutional violation resulted from a policy or custom of the local government.”) (citation omitted).

6. We note that a sheriff may only be sued in his official capacity under respondeat superior for his employees’ negligent performance of their official functions. Seay v. Cleveland, 270 Ga. 64, 65(1), n. 1, 508 S.E.2d 159 (1998).

7. OCGA § 33-24-51 provides as follows:

        (a) A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.

        (b) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.

        See also OCGA § 36-92-2(a) (waiving the sovereign immunity of local government entities for losses arising from the negligent use of a covered motor vehicle and setting the maximum amount for which immunity is waived; the statute applies to incidents occurring on or after January 1, 2005).

8. See Division 2, supra.

9. We note that, even if Deputy Nichols is entitled to official immunity for claims against him in his individual capacity, that immunity does not extend to Sheriff Wofford. Gilbert v. Richardson, 264 Ga. at 753-754(7), 452 S.E.2d 476 (“Under the doctrine of respondeat superior, a principal has no defense based on an agent’s [official] immunity from civil liability for an act committed in the course of employment.”) (citation omitted).

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