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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 an Alabama case heard in federal court, as there do not appear to be Georgia cases on point (and this is, therefore, a guide to the way such an issue might be decided in Georgia courts, 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.

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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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May 8 17

Is It Really Necessary For the Trial Court to Rule on Issue to Appeal That Issue?

by merlin

        

In the 2011 Supreme Court case of Tyner v. State ( 289 Ga. 592), the Court discussed an earlier case I have written about on this site, Wiggins v. State, 288 Ga. 169 (Ga. 2010), in which the Georgia Supreme Court dismissed the argument of the Defendant that inclusion on the Sex Offender Registry was a violation of his Sixth Amendment rights

(“guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you”)

because that argument was not raised at the trial court level.

The Supreme Court of Georgia 2011 case of Tyner v. State, 289 Ga. 592, 714 S.E.2d 577, below, involves the interesting issue of the entry of a guilty plea to an accused malice murder, followed by an allegation that the plea was not voluntarily entered.  However, there is no evidence of this involuntariness on the record that the Court has in front of it, so it has nothing to decide on (the Court instead decides to pursue important Constitutional issues implicated by the absence of a record).

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Charles H. Frier, Smyrna, for appellant.Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Marc A. Mallon, Paige R. Whitaker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

NAHMIAS, Justice.        
        

This is Curtis Tyner’s much delayed direct appeal of his 1984 malice murder conviction based on his guilty plea. Because the case is here on direct appeal and the record does not show that Tyner was advised of his right against self-incrimination as we have held is required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), his guilty plea was invalid and we must reverse his conviction.

1. According to the factual basis offered in support of the guilty plea, in April 1984, IBM executive Martha Anne Mickel hired Tyner to paint her apartment. On April 15, Tyner forced Ms. Mickel into a car, tied her up, sexually assaulted her, and then dumped her, unconscious, in a creek. The autopsy showed that the victim was still alive and breathing when she was put into the water and that the cause of death was drowning. The police identified Tyner as a suspect from evidence found in the victim’s apartment. He confessed to the police a few days later after being advised of his rights, even telling them where to find the victim’s purse. Tyner denied, however, knowing that the victim was still breathing when he threw her in the creek. On April 27, 1984, Tyner was indicted for malice murder, and Carl Greenberg from the Fulton County Public Defender Office was appointed to represent him.

        On September 25, 1984, Tyner pled guilty to malice murder. He later said that he pled guilty because the State had indicated that it would seek the death penalty if the case went to trial. The transcript of the plea hearing shows that Tyner was advised of and waived two of his three Boykin rights—the right to a jury trial and the right to confront the witnesses against him. However, he was not advised of his third Boykin right, the right against self-incrimination.

        The trial court accepted the guilty plea and sentenced Tyner to life in prison. At the close of the hearing, the prosecutor suggested that the court should “[a]dvise him of his rights I think,” apparently referring to Tyner’s limited right to appeal his conviction and sentence based on a guilty plea. The court responded, “I don’t think there’s any need,” and the hearing ended.

        Within three months of the guilty plea, Tyner began filing pro se pleadings seeking review of his sentence and documents related to his case so that he could “get it back in court” and prepare “his attack on the erroneous issue in his case.” Tyner noted in a 1987 filing that “[a]n indigent defendant is entitled to obtain free of charge a transcript of his trial for purposes of a direct appeal of his conviction,” and in another filing he complained that his letters to Greenberg had all come back marked “Return to Sender.”

        In 1986, 1987, and 1990, Tyner filed pro se petitions for habeas corpus, and the habeas court conducted an evidentiary hearing on each petition before denying relief. In 2008, Tyner filed a fourth habeas petition, which was dismissed as successive and procedurally barred. In 2009, Tyner filed a pro se motion for out-of-time appeal of his conviction, which the trial court summarily dismissed, and a pro se motion for new trial, which the court dismissed as untimely.

         In April 2010, Tyner filed a pro se notice of appeal of the order denying an out-of-time appeal, and the following month he filed a motion for appointment of counsel. The trial court granted the motion, and Tyner, now represented by counsel apparently for the first time since 1984, withdrew his notice of appeal and filed a second motion for out-of-time appeal on June 30, 2010. Tyner alleged that he was not told that he had a right to appeal his conviction, that the court’s remarks at the plea hearing gave him the impression that he could not appeal, and that his failure to file a timely appeal could not be attributed to any error or desire on his part. See Birt v. Hopper, 245 Ga. 221, 221 n. 1, 265 S.E.2d 276 (1980) (explaining that “[o]ut-of-time appeals are granted where a defendant in a criminal case is not advised of his right of appeal or his counsel fails to appeal” as directed). The State did not file a response to the motion or request a hearing, and on July 12, 2010, the trial court granted Tyner an out-of-time appeal. Tyner filed a timely notice of appeal of his conviction a week later.

         2. Tyner’s sole enumeration of error is that his guilty plea is invalid under Boykin because the State failed to meet its burden of showing that he knowingly and voluntarily waived his right against self-incrimination. With limited exceptions, the entry of a guilty plea waives all defenses except those that relate to the knowing and voluntary nature of the plea. See Moore v. State, 285 Ga. 855, 858, 684 S.E.2d 605 (2009). Once a defendant raises a question about the validity of a guilty plea, the State bears the burden to establish that the plea was knowingly and voluntarily entered. See King v. State, 270 Ga. 367, 369, 509 S.E.2d 32 (1998) (on direct appeal); Bazemore v. State, 273 Ga. 160, 161, 535 S.E.2d 760 (2000) (in habeas corpus). In reviewing a direct appeal from a guilty plea, this Court must evaluate the enumerated errors based solely on “the trial court record, including the record of the guilty plea and sentencing as well as any subsequent evidence that was properly presented to the reviewing court, assuming all of that is also properly included in the record on appeal.”

Smith v. State, 287 Ga. 391, 403, 697 S.E.2d 177 (2010).

        The State concedes the existing record does not show that Tyner was advised of his right against self-incrimination and acknowledges that our usual course where we find a Boykin violation on direct appeal is to reverse the invalid conviction and remand the case for further proceedings. The State nevertheless asks us not to decide the Boykin issue but first to remand the case to the trial court, where Tyner should be required to file a motion to withdraw the guilty plea, which would give the State the opportunity to try to show that Tyner’s attorney informed him of his right against self-incrimination before he pled guilty. See Bazemore, 273 Ga. at 161, 535 S.E.2d 760 (noting that the State may carry its burden of showing that the defendant was advised of and waived his Boykin rights not only with the plea hearing record but with extrinsic evidence properly in the record, including evidence from plea counsel). However, the State cites no authority supporting such a procedure, and we have explained that “a defendant who hopes to appeal successfully from a guilty plea is not required to first file a motion to withdraw the plea.” Smith, 287 Ga. at 403 n. 7, 697 S.E.2d 177.

         3. Shortly before oral argument, the State filed a motion to dismiss Tyner’s appeal. The State argued that the trial court erred in granting an out-of-time appeal and that Tyner’s unsuccessful habeas petitions should bar us from reversing his conviction. However, we see no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and it did neither. See OCGA § 5–7–1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).1 Likewise, the State has conceded that Tyner’s Boykin claim was dismissed for procedural default when he raised it for the first time in his fourth habeas petition, which was not an adjudication on the merits and thus is not res judicata as to his current claim. See Wiggins v. State, 288 Ga. 169, 170, 702 S.E.2d 865 (2010) (holding that claims raised on direct appeal are not barred by denial of a prior habeas petition raising the identical claims where the habeas court ruled that the claims were procedurally defaulted instead of denying the claims on the merits).

        4. We recognize that reversal of Tyner’s 27–year–old murder conviction may make it difficult for the State to try him or negotiate another plea. We also note that the record does not suggest that Tyner would have refused to go through with his guilty plea if during the plea hearing the prosecutor had added the words “and the right against compulsory self-incrimination” after advising Tyner of his “right to cross-examine witnesses called by the State or call witnesses in your own defense.” Nor has Tyner alleged any such prejudice. Instead, the record as a whole indicates that Tyner freely made an informed and very reasonable decision to plead guilty, with the assistance of able counsel and after colloquy in open court, because he understood that the evidence that he had committed a horrific abduction, sexual assault, and murder was strong and his guilty plea would prevent the State from seeking the death penalty if the case went to trial.

         Nevertheless, in a number of decisions over the past decade this Court has interpreted advice and waiver of the “three Boykin rights” as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred. See, e.g., Wilson v. Kemp, 288 Ga. 779, 780–781, 707 S.E.2d 336 (2011); Arnold v. Howerton, 282 Ga. 66, 67–68, 646 S.E.2d 75 (2007). Under those decisions, Tyner’s guilty plea was invalid, and his conviction must be reversed and the case remanded to the trial court for further proceedings.

        Presiding Justice Carley dissented in Wilson, arguing that the Court has interpreted Boykin too formalistically and more strictly than the majority of other courts in the country. See Wilson, 288 Ga. at 780, 782, 707 S.E.2d 336 (Carley, P.J., joined by Nahmias, J., dissenting). Moreover, in 1982 this Court unanimously held, in contradiction to Wilson, that “[w]e decline to adopt a rule which would demand that failure to advise an accused of his right against self-incrimination invalidates a guilty plea in a case where the record reflects that the central considerations of Boykin have otherwise been met.” Goodman v. Davis, 249 Ga. 11, 14, 287 S.E.2d 26 (1982). Compare Wilson, 288 Ga. at 780, 707 S.E.2d 336 (reversing Wilson’s guilty plea because there was no showing that he was specifically advised of the right to remain silent at trial, even though the trial court did advise Wilson that he had “a right to remain silent” at the guilty plea proceeding and Wilson’s counsel testified that he had advised Wilson of the “constitutional rights” he was waiving by pleading guilty). Under Goodman, Tyner’s guilty plea would likely be deemed valid and his conviction affirmed.

         It is not entirely clear how this Court got from Goodman to Wilson.2 Goodman remains on the books, having never been overruled or disapproved. But it was not cited by any party in this case, perhaps because it is so plainly inconsistent with our more recent precedent. The bottom line is this: Until the Supreme Court of the United States grants certiorari in this or a future case and tells us we are applying Boykin incorrectly, or a majority of this Court is convinced that we should re-examine our cases in this area and revert to our earlier understanding of Boykin, any defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the “three Boykin rights” and he properly presents the issue to a reviewing court.

        Finally, we should note that the State could have avoided the result in this case. The State could have ensured that the right against compulsory self-incrimination was discussed during Tyner’s plea hearing, and it could have ensured that he was advised of and had effective representation regarding his right to appeal his conviction. Indeed, had Tyner filed his direct appeal during the 15 or so years after his 1984 guilty plea, his conviction would likely have been affirmed under Goodman. In addition, while the State was entitled to rely on procedural bars and the successive petition statute to defeat Tyner’s habeas corpus petitions, including the final one in which he raised a Boykin claim, it could have sought alternatively to litigate the merits of his guilty plea in a habeas hearing, had it wanted to expand the record.

        Judgment reversed and case remanded.

        All the Justices concur, except HUNSTEIN, C.J., BENHAM, THOMPSON, HINES and MELTON, JJ., who concur in Divisions 1, 2, and 3, and in the judgment.

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Notes:

        1. Accordingly, the merits of the order granting this out-of-time appeal—including whether the trial court should have held a hearing to determine whether Tyner was at fault for the failure to timely appeal and the effect of the court’s order dismissing Tyner’s first motion for out-of-time appeal—are not before us for decision.

        2. It appears that the first time this Court even mentioned “the three Boykin rights” was in 1999—30 years after Boykin and 17 years after Goodman—as dicta in a decision involving the issue of who has the burden of proof when a recidivism defendant claims that a prior conviction by guilty plea was invalid under Boykin. See Nash v. State, 271 Ga. 281, 285, 519 S.E.2d 893 (1999). The Nash majority quoted a Louisiana case that said:

        If the State introduces anything less than a “perfect” transcript [of the prior guilty plea], … the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

        State v. Shelton, 621 So.2d 769, 780 (La.1993) (emphasis added). Interestingly, two years later the Court disavowed the immediately preceding portion of this quotation. See Motley v. State, 273 Ga. 732, 733 n. 3, 546 S.E.2d 468 (2001) (“The adoption [in Nash ] of the burden of proof set forth in Shelton was not an adoption of Louisiana’s requirement, if any, that a guilty plea must be made ‘with an articulated waiver of the three Boykin rights.’ ” (emphasis in original)). The “three Boykin rights” appear to have assumed their preeminent status in 2001, in Britt v. Smith, 274 Ga. 611, 556 S.E.2d 435 (2001). There a four-Justice majority held that to make a guilty plea valid, defendant must be advised only of the three constitutional rights mentioned in Boykin, and not the other rights enumerated in Uniform Superior Court Rule 33.8. See 274 Ga. at 614, 556 S.E.2d 435. The majority explained that “our decisions dealing with the validity of a guilty plea are generally couched in terms of the defendant’s waiver of the three Boykin rights,” id. at 614, 556 S.E.2d 435, although the only case cited for this proposition was Nash. Neither Nash nor Britt mentioned Goodman or similar precedent interpreting Boykin more flexibly. In any event, for the last decade the Court has focused strictly and solely on what the record shows regarding the “three Boykin rights.”

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        However, the Tyner case has since been overruled on that issue, because a procedural unfairness is still a fundamental unfairness.  There is much grumbling about the idea of lawyers dealing with technicalities, but substantive justice carries the day, ultimately.

        In other words, the Tyner case was not followed by subsequent cases, reaffirming the ability of a higher court to review an issue if that issue was preserved for the record – all for the purpose of achieving substantial Justice.

        Reviewing the case shows a likely answer for the Court’s stance, in that they disregarded the longstanding rule on preservation of an issue for appeal because they were seeking to ensure access to substantial justice in accordance with the Boykin rule, but they were not trying to “throw the baby out with the bathwater” or encourage frivolous appeals.

        The 2016 Court of Appeals of Georgia case, Raheem v. State,  339 Ga.App. 859, 794 S.E.2d 418 set the tone for subsequent decisions:

Gerard Bradley Kleinrock, Decatur, for Appellant.

Robert D. James Jr., Deborah D. Wellborn, for Appellee.

Barnes, Presiding Judge.

        In these companion appeals, the trial court granted Haneef Abdul Raheem’s motions for out-of-time appeals of his 1981 conviction for motor vehicle theft and his 1982 burglary conviction. Following our review and finding that the record does not establish that he was fully advised of his rights under Boykin v. Alabama , 395 U.S. 238, 243–244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we reverse the convictions.

        In Raheem v. State , 333 Ga.App. 821, 777 S.E.2d 496 (2015) (Raheem I ), Raheem appealed from the trial court’s denial of his motion for out-of-time appeals of his 1982 conviction for burglary, 1981 conviction for motor-vehicle theft, and 1985 conviction for armed robbery. The relevant facts as presented in Raheem I establish that

[i]n 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run. The next year, he pleaded guilty to burglary, and in 1985, to armed robbery. Decades later, in 2013, Raheem filed a pro se motion for an out-of-time appeal from all of these convictions, arguing that his guilty pleas were involuntary because, in each plea proceeding, he was not advised of his right to a jury trial, his right to confront the witnesses against him, or his right against self-incrimination. Raheem further argued that the essential elements of each of his offenses were not explained to him prior to entering his guilty pleas…. Raheem contend[ed] that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were not knowing and voluntary and neither the trial court nor his trial counsel advised him of his limited appellate rights. The State moved to dismiss Raheem’s motion, arguing that, as to at least two of his cases, the plea transcripts show that his guilty pleas were indeed freely and voluntarily entered. The trial court denied the State’s motion, noting that there were no transcripts of any of Raheem’s plea hearings. Raheem then amended his motion for an out-of-time appeal, reiterating the arguments he made in his original motion and asserting that his failure to file a timely appeal in each case was due to ineffective assistance of counsel, rather than any fault of his own. Thereafter, Raheem was appointed counsel to represent him at the hearing on his motion.

(Footnote omitted.) 333 Ga.App. at 822, 777 S.E.2d 496.

        Following a hearing on his motion for an out-of-time appeal, the trial court found that in the 1981 and 1982 cases, “Raheem had established a legitimate issue for appeal because there was no evidence that, during the plea proceedings, he was informed of his right to confront his accusers or his right against compulsory self-incrimination,” but found that the record demonstrated that the plea in the 1985 case was knowing and voluntary. Raheem I , 333 Ga.App. at 822–823, 777 S.E.2d 496. The trial court then “found that Raheem was not entitled to an out-of-time appeal from any of his convictions because he had not shown that he was prejudiced…. [because] there was no evidence that the result of the proceedings would have been different if Raheem had taken his case to trial rather than pleading guilty.” Id. at 823, 777 S.E.2d 496.

        Raheem appealed the denial of his motion. In Raheem I , we affirmed the trial court’s denial of Raheem’s motion for an out-of-time appeal of the 1985 armed-robbery conviction. 333 Ga.App. at 827–828 (2), 777 S.E.2d 496. We further agreed with the trial court that the record demonstrated that during Raheem’s 1981 and 1982 plea proceedings, he was only advised of one of the three constitutional rights he was waiving by pleading guilty pursuant to Boykin , namely, the right to a jury trial, but not informed of his right against self-incrimination or the right to confront his accusers. Raheem I , 333 Ga.App. at 824–825 (1), 777 S.E.2d 496. However, we reversed the trial court’s denial of Raheem’s motion to file an out-of-time appeal as to the 1981 and 1982 convictions, upon finding that the trial court had denied the motion “without resolving the determinative issue of whether the failure to pursue a timely direct appeal was attributable to trial counsel or to Raheem himself.”1 (Footnotes omitted.) Id. at 826 (1), 777 S.E.2d 496. We “remand[ed] the case with direction that the court conduct the requisite inquiry and make findings [as to the 1981 and 1982 convictions] regarding who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.” Id.

Upon remand, and following a hearing, the trial court found that Raheem’s failure to file a timely appeal of the 1981 and 1982 convictions was attributable to his attorney’s failure to advise him that he had the right to appeal and that he had a legitimate issue for appeal, given that the record failed to establish that he was informed of all three Boykin rights. Subsequently, the trial court granted Raheem’s motion for an out-of-time appeal of the two convictions.

        1. Although the State contends that the trial court erred in granting Raheem’s motion for an out-of-time appeal, the merits of the order on Raheem’s motion for an out-of-time appeal are not before us. Tyner v. State , 289 Ga. 592, 594 (3), 714 S.E.2d 577 (2011), overruled in part on other grounds, Lejeune v. McLaughlin , 296 Ga. 291, 297 (2), 766 S.E.2d 803 (2014). There is “no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and [in this case] it did neither. See OCGA § 5–7–1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).” Tyner, 289 Ga. at 594 (3), 714 S.E.2d 577.2

        2. Raheem raises identical arguments on appeal in cases A16A1362 and A16A1363. He maintains that the guilty pleas in his 1981 and 1982 convictions were not knowingly and voluntarily entered because he was not informed of the constitutional rights required under Boykin before he entered his plea. Raheem asserts that the State did not meet its burden of establishing by the record that he was advised of the three Boykin rights he was waiving by pleading guilty.

 

The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It is the duty of a trial court to establish that the defendant understands the constitutional rights being waived, and the record must reveal the defendant’s waiver of those constitutional rights….. [A]ny defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the three Boykin rights and he properly presents the issue to a reviewing court. Nevertheless, our Supreme Court has recognized that nothing in Boykin requires the State during a guilty plea proceeding to use any precisely-defined language or ‘magic words.

 

(Citations and punctuation omitted.) Childs v. State , 311 Ga.App. 891, 891–892 (1), 717 S.E.2d 509 (2011).

The State bears the burden on direct review to establish that the plea was knowingly and voluntarily entered. King v. State , 270 Ga. 367, 369, 509 S.E.2d 32 (1998).

The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

(Citation and punctuation omitted.) Nash v. State , 271 Ga. 281, 285, 519 S.E.2d 893 (1999).

        Here, there is no transcript of the plea hearing of the 1981 and 1982 cases. In both cases, there is a pre-printed form included in the record labeled “Transcript.” The only Boykin right acknowledged on the form is the right to a jury trial. Trial counsel for the 1982 plea testified that “the Boykin rights weren’t specifically considered at that time because the court system was unaware of it or didn’t use the Boykin case in their plea process.” The State concedes that the record on its face does not demonstrate that Raheem was advised of and waived all three Boykin rights, but asserts that any such deficiency was harmless because Raheem never claimed that he would have chosen to go to trial instead of taking a plea, had he be fully advised of all of his Boykin rights.3

Regardless of the practices in place at that time,

[t]he requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. Rather, the procedural element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. Thus, Boykin imposed a constitutional record-keeping requirement on the states if they hoped to insulate state guilty pleas from future attacks on federal constitutional grounds.*

(Footnotes and punctuation omitted; emphasis supplied). Wiley v. Miles , 282 Ga. 573, 575–576 (2), 652 S.E.2d 562 (2007) (establishing that Boykin applies to guilty pleas entered after June 2, 1969).

        Our appellate courts have “interpreted this advice and waiver of the three Boykin rights as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred.” Tyner , 289 Ga. at 595 (4), 714 S.E.2d 577.4 Here it is undisputed that the record does not disclose that Raheem was advised of his right against self-incrimination or the right to confront witnesses.

        Accordingly, because Raheem was not a fully advised of the rights he was waiving by pleading guilty in the 1981 and 1982 cases, the record does not substantiate that his pleas were knowingly and voluntarily. Thus, his guilty pleas are invalid, his 1981 and 1982 convictions are reversed, and both cases are remanded to the trial court for further proceedings consistent with this decision. See Vera v. State , 329 Ga.App. 177, 764 S.E.2d 427 (2014).

Judgments reversed.

Doyle, C.J., Andrews, P.J., Miller, P.J., Ellington, P.J., and Phipps, PJ., Dillard, McFadden, Boggs, Ray, Branch, McMillian, and Peterson, JJ concur. Rickman, and Mercier, JJ concur in judgment only.

——–

Notes:

1 “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” (Citation and punctuation omitted.) Simmons v. State , 276 Ga. 525, 526, 579 S.E.2d 735 (2003). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.”(Citations omitted.) Glass v. State , 248 Ga.App. 91, 92 (1), 545 S.E.2d 360 (2001).

2 We disapprove of the following cases to the extent that they could be relied upon to stand for the proposition that the State can timely appeal from an order granting an out-of-time appeal: Fineza v. State , 255 Ga.App. 835, 567 S.E.2d 17 (2002) ; Towns v. State , 228 Ga.App. 267, 491 S.E.2d 497 (1997).

3 The State asserts this argument within the context of its claim that trial counsel was not ineffective and thus that the motion for the out-of-time appeals should not have been granted. As noted in Division 1, any challenge to that order is not before us on review.

4 Per the holding in Lejeune v. McLaughlin , 296 Ga. 291, 766 S.E.2d 803 (2014), the burden now shifts in habeas corpus cases to the defendant to prove that his guilty plea was not knowing and voluntary, “[b]ut there is nothing in Lejeune remotely suggesting that the State no longer has the burden of demonstrating, in the context of a direct appeal from a judgment of conviction, that a defendant’s guilty plea was voluntary, knowing, and intelligent.” Raheem I , 333 Ga.App. at 821 (1) n. 13, 777 S.E.2d 496.

——–

This approach is consistent with the approach in Tyner.  Both cases provided justice to the person aggrieved and avoided an absurd result that would be repugnant to the goal of substantial justice.  One case required going beyond the wording of the pleadings to accomplish that end, but one case required staying strictly within the wording of the pleadings to achieve it.

 

Nonetheless, it seems that the safest approach for practitioners is to stick with preserving the issue for appeal!

May 4 17

About Attorney’s Fees in Georgia Child Custody/Visitation Cases

by merlin

Recently, I was asked about attorney’s fees in child custody and visitation matters, and I answered that they are possible, but the American view is generally against granting legal costs of the winner against the loser in civil matters and this attitude seems to carry over in child custody and visitation cases, as well.  In other words, they are theoretically provided for (and legal authority for such fees is there), but that Courts often seem reluctant to grant them.  This requires further explanation, but it is based on two things: 1) observation and experience, and 2) a legal provision that actually tends to control the willingness of the trial judge to grant fees against the parent that it found against.

Section 19-9-3 provides the child custody rules between parties.  It sets down a list of what factors constitute the best interests of the child; it provides for what happens when a parent changes their address; it grants continuing jurisdiction to a Court to make future child custody and visitation determinations; it provides for attorney’s fees, separately from the provision made in Section 19-6-2.

Section 19-9-3(g) reads as follows:

“Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney’s fees made pursuant to this subsection.”

The law expressly states that the determination of payment of attorney’s fees by the parties is to be determined in proportions determined by the judge themselves.  However, the subsection also expressly refers to the general domestic attorney’s fee provision, Section 19-6-2.  Subsection (1) of that Code Section puts the fees in the sound discretion of the court

except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party”.

(emphasis supplied).

The rules that bind the parties in this kind of contest allow for the attorney’s fees to be apportioned by the trial judge to the contest loser (and they are made more likely to be granted the nastier their conduct throughout the dispute has been; judges are human, too), but a poor person is a poor person, and economic punishment is actually contrary to the goals of the statute.

May 1 17

Security Certificate

by merlin

This site is now accessible via a higher degree of security, at https://www.merlinusmonroe.com (please note the addition of an “s” in the initial address).

 

At Merlinus Goodman Monroe, LLC, your well-being is of paramount importance!

Apr 27 17

Statute of Limitations for a State Action Under 42 U.S.C. § 1983 (2 Years)

by merlin

A question kept plaguing me with regard to claims brought in State of Georgia courts under 42 USC 1983.  I could not determine what statute of limitations was appropriate for such a claim!

In 1984, the Court of Appeals decided the case of Henson v. Am. Family Corp., 171 Ga. App. 724, 321 S.E.2d 205, 205–13 (1984), in which it decided that the statute of limitations that should be applied is “determined by reference to the limitation period governing analogous actions under state law.”  Henson, at 732.  the United States Supreme Court had decided this question before, and they specifically decided against using a state law limitations period which might better comport with the action involved  but to instead use the personal injury limitations period of two years.

 

“8. The trial court was also correct in granting summary judgment to the counterclaim defendants with respect to the civil rights claim. This cause of action was based on 42 U.S.C. § 1983 and was grounded on allegations of a malicious conspiracy between the counterclaim defendants and the judge who issued the TRO. Pretermitting any inquiry into the merits of this claim, we find that it is barred by the statute of limitation.

        Because Congress did not establish a statute of limitation for § 1983 actions, the applicable limitation period is determined by reference to the limitation period governing analogous actions under state law. See Bd. of Regents v. Tomanio, 446 U.S. 478, 483-484, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440, 447 (1980); Proctor v. Flex, 567 F.2d 635 (5th Cir.1978). In this state, “[a]ctions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right act of action accrues…” OCGA § 9-3-33. Henson first asserted his § 1983 claim in an amendment to his counterclaim filed on February 24, 1982, more than three years after the accrual of the cause of action. Thus, unless the amendment may be said to relate back to the date of filing of the original counterclaim, it is barred by the statute.

        In general, an amendment changing only the legal theory of the action or adding another claim arising out of the same conduct, transaction or occurrence which is the subject of the original pleading will relate back, while an amendment asserting an entirely new cause of action based on wholly different facts will not. See OCGA § 9-11-15 (c); Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga.App. 14 (2), 217 S.E.2d 358 (1975). See also Dover Place Apts. v. A & M Plumbing, etc., Co., 167 Ga.App. 732, 307 S.E.2d 530 (1983). Henson’s original counterclaim sought recovery for breach of contract, tortious interference with contractual rights, and indemnity. Each of these claims for relief is based on facts which are wholly different from those which are alleged in support of the § 1983 claim, and it cannot be gainsaid that the latter constitutes an entirely distinct and unrelated cause of action. Consequently, the amendment does not relate back, and the action is barred. Accord Cole v. Atlanta Gas Light Co., 144 Ga.App. 575, 241 S.E.2d 462 (1978).”

 

This standard of two years was then merely the general custom for such actions, but it was made more explicit, and was directly announced to be the 2-year statute of limitations for personal injury actions in Georgia, by Williams v. City of Atlanta, 794 F.2d 624 (11th Cir. 1986).  That case is presented in its entirety below, and it represents a very thorough example of legal reasoning.

        “Amy D. Levin, Asst. U.S. Atty., Atlanta, Ga., for U.S.A.

        W. Roy Mays, III, City Atty., George R. Ference, Marva Jones Brook, Atlanta, Ga., for City of Atlanta.

        Victoria H. Tobin, Asst. Atty. Gen., Atlanta, Ga., for State of Ga.

        Appeals from the United States District Court for the Northern District of Georgia.

        Before KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

        KRAVITCH, Circuit Judge:

        These appeals concern the retroactivity of the Supreme Court’s adoption of a new doctrine for statutes of limitation in actions under 42 U.S.C. Sec. 1983. The district court retroactively applied Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and dismissed the plaintiffs’ complaints.

BACKGROUND
        

On June 22, 1981, a Fulton County, Georgia magistrate issued a warrant for search and seizure at the home of the plaintiffs Homer and Faye Williams. Later that same day local, state and federal law enforcement officials executed the warrant. According to the complaint, the search virtually gutted the Williams home, and resulted in over $10,000 in damage to their property. The complaint also alleged that during the search, officials represented to the Williams that they would be compensated for the damage. The search yielded evidence which was used in the prosecution of the plaintiffs’ son for murder. See Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983).

        The Williams unsuccessfully sought compensation for the damage from the City of Atlanta. On June 21, 1985, they filed two identical lawsuits, one in the federal district court, and one in state court. The complaints named as defendants local, state and federal officers, and asserted claims under state law and section 1983. 1 In the case originally filed in the district court (No. 85-8852), the court ruled that the federal claims were barred by the statute of limitations and the district court declined to exercise pendent jurisdiction over the state claims. The federal defendants removed the case filed in the state court (No. 85-8905). The district court then dismissed this action on the same grounds.

Retroactivity of Wilson v. Garcia

        Section 1983 does not contain a statute of limitations; therefore courts must select and apply the most analogous state statute of limitations to section 1983 claims. In the past, this circuit has followed a two-step approach to selecting a statute.

        In this Circuit, the choice of an appropriate state statute has proceeded in two steps. First, the court determines the “essential nature” of the claim. Federal law determines the essential nature of the claim, yet federal law resolves question largely by reference to state law. Second, the court decides which statute of limitations a state court would apply if faced with a claim of the same type or class as the Section 1983 claim.

        Jones v. Preuit & Mauldin, 763 F.2d 1250, 1252-53 (11th Cir.1985) (citations omitted). Accordingly, different statutes of limitations may have applied to various section 1983 actions within a given state.

        Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), has simplified the problem of selecting the appropriate statute of limitations in section 1983 actions. Courts no longer need select the proper limitations statute for each individual section 1983 claim; rather, in each state the courts must select one appropriate limitations period for all section 1983 claims. 105 S.Ct. at 1945. The parties agree that after Wilson v. Garcia the proper limitations period for all section 1983 claims in Georgia is the two year period set forth in O.C.G.A. Sec. 9-3-33 for personal injuries. 2 Accordingly, under Wilson v. Garcia, the appellants’ section 1983 claims are barred.

        Appellants contend, however, that Wilson v. Garcia should not be retroactively applied, 3 and that under the prior law of this circuit the most appropriate limitations period would have been the four year period set forth in O.C.G.A. Sec. 9-3-32 for conversion or destruction of personal property. 4

        In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 355, 92 S.Ct. 349 (1971) the Supreme Court articulated a three-part test to determine whether a rule of law announced in a judicial decision should be retroactively applied:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must … weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

        (citations omitted).

        Appellees argue that Wilson did not overrule “clear past precedent,” in Georgia and that, in fact, Wilson is consistent with prior precedent concerning the appropriate statute of limitation for section 1983 actions in Georgia. They assert that cases prior to Wilson v. Garcia uniformly selected the two year personal injury statute for section 1983 actions in Georgia.

        Appellees’ description of the case law in Georgia before Wilson v. Garcia is flawed. Prior to Wilson v. Garcia there was not a uniform statute of limitations in section 1983 actions in Georgia; rather the appropriate statute varied from case to case. None of the cases cited by appellees involved a claim analogous to those advanced in the current case. See Shank v. Spruill, 406 F.2d 756 (5th Cir.1969) (wrongful arrest case; court applied personal injury statute); Wooten v. Sanders, 572 F.2d 500 (5th Cir.1978) (excessive force in arrest case; court applied personal injury statute); Neel v. Rehberg, 577 F.2d 262 (5th Cir.1978) (prisoner case; court applied personal injury statute); McMillian v. City of Rockmart, 653 F.2d 907 (5th Cir. Unit B 1981) (false arrest case; court applied personal injury statute); Sadiqq v. Bramlett, 559 F.Supp. 362 (N.D.Ga.1983) (injury to character and reputation; court applied personal injury statute); Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972) (wrongful arrest and detention; court applied personal injury statute), aff’d, 480 F.2d 805 (5th Cir.1973).

        Although the personal injury statute was uniformly applied in cases involving wrongful arrests or challenges to detention, in section 1983 cases involving claims of employment discrimination this court refused to apply the personal injury statute, and instead adopted O.C.G.A. Sec. 9-3-22, Georgia’s statute for enforcement of statutory rights and recovery of back pay and wages. 5 Under that statute section 1983 plaintiffs had two years in which to file a claim for back pay, but twenty years to file for injunctive relief. See, e.g., Whatley v. Department of Education, 673 F.2d 873 (5th Cir. Unit B 1982); Howard v. Roadway Express, 726 F.2d 1529 (11th Cir.1984); Solomon v. Hardison, 746 F.2d 699 (11th Cir.1984). The court specifically recognized that there was not a single statute of limitations for section 1983 in Georgia. Whatley, 673 F.2d at 878.

        We agree with appellees, however, that Wilson v. Garcia did not overrule clear past precedent applicable to the Williams’ case. The Williams cannot point to a single precedent which set forth the statute of limitations for a claim analogous to theirs. Moreover, as discussed above, there is not a single precedent applying the four year limitation period in O.C.G.A. Sec. 9-3-33, for damage to personal property to any section 1983 claim. Indeed, no case from Georgia had applied a period longer than two years to a section 1983 claim for money damages. The process of selecting the most analogous statute of limitations under our former doctrine was a tortuous and uncertain process. Jones v. Preuit & Mauldin, 763 F.2d 1250, 1253 & n. 1 (11th Cir.1985); see also Wilson v. Garcia, 105 S.Ct. at 1945 n. 24 (choice of one analogy over another is often arbitrary). Even if it appears that the most analogous statute would have been the four year period, in the absence of any precedent, it was not reasonable to wait more than two years to file suit. See Smith v. City of Pittsburgh, 764 F.2d 188, 195 (3d Cir.), cert. denied, — U.S. —-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); 6 cf. Orr v. General Finance, 697 F.2d 1011 (11th Cir.1983) (where decision established new law in Northern District of Georgia, but did not overrule prior circuit precedent, new rule may be applied retroactively). Because of the lack of precedential case law, any reliance on prior doctrine was unreasonable; thus it is not unfair to apply the new doctrine retroactively.

        Denying retrospective effect to Wilson v. Garcia would not serve the purpose of the Supreme Court’s new rule of uniformity. Different statutes of limitation would continue to apply to various section 1983 claims. Moreover, denying retroactive application in this case would be especially repugnant to the new rule because we would be applying an analogy never even made under the former doctrine. Wilson v. Garcia, 105 S.Ct. at 1945 (criticizing former practice of analogizing each section 1983 claim). Accordingly, the second factor of the Chevron test weighs in favor of retroactivity. Cf. Rogers v. Lockheed, 720 F.2d 1247, 1249 (11th Cir.1983) (prospective application of shorter limitations period would retard new rule), cert. denied, — U.S. —-, 105 S.Ct. 292, 83 L.Ed.2d 227 (1984).

        We also note that the third prong of the Chevron test speaks of “substantial inequity” (emphasis added). Retroactive application will defeat the appellants’ section 1983 claims, where before they may have prevailed. Nevertheless, not one precedent gave appellants reason to wait longer than two years, and accordingly applying a two year period would not work a “substantial inequity.”

        The majority of circuits that have considered the question have applied Wilson v. Garcia retroactively. See Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.), cert. denied, — U.S. —-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Wycoff v. Menke, 773 F.2d 983 (8th Cir.1985); Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), cert. denied, — U.S. —-, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986). But see Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984).

Other Claims

        Although we affirm the dismissal of the section 1983 claims, we must also address the district court’s disposition of the state law claims. In the case initially filed in federal court, the district court held that the state law claims were pendent, and it declined to retain jurisdiction over them after dismissal of the federal claims. Appellants provide no reason why this was an abuse of discretion under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The district court’s disposition of the state law claims in the removed case is a different matter. First we note that the district court did not even mention the state law claims. We assume, however, that the district court dismissed the claims for the same reason as it did in the companion case, as an exercise of discretion not to consider pendent state claims once the federal claims in a lawsuit are disposed of. See id. As we explain below, the district court misunderstood the scope of its discretion.

        The case filed in state court was removed under 28 U.S.C. Sec. 1442(a)(1), which allows federal officers to remove actions filed against them in state courts. Section 1442(a)(1) created a special ancillary jurisdiction over the state claims in this situation; that is, under section 1442(a)(1), the district court may take the entire case, even if it would not have jurisdiction over any of the claims against a codefendant. See IFMC Professional Services v. Latin American Home Health, 676 F.2d 152, 158-59 (5th Cir. Unit B 1982). If the federal defendants are dismissed, the district court has a residual ancillary jurisdiction over the state law claims against the nonfederal defendant. The district court may, in its discretion, decline to exercise this jurisdiction. If so, it must remand the case to state court as “removed improvidently and without jurisdiction” under 28 U.S.C. Sec. 1447(c). IFMC Professional Services, 676 F.2d at 160. The reason is simple; if the federal court acting in removal jurisdiction determines that federal jurisdiction does not exist, it remands rather than dismisses because removal was “improvident.” The scope of the district court’s discretion, therefore, was between adjudicating the state law claims or remanding them; it had no discretion to dismiss them. 7 Accordingly, on remand the district court should either adjudicate the remaining claims or remand them.

        Moreover, the district court did not address the state law claims against the federal defendants. These claims were not barred by the statute of limitations and the district court should consider them on remand.

Conclusion

        The order of the district court in No. 85-8852 is AFFIRMED. The order of the district court in No. 85-8905 is AFFIRMED with respect to the federal claims and REVERSED and REMANDED with respect to the remaining claims.

—————

1 The appellants also asserted claims under 42 U.S.C. Secs. 1981, 1985 and 1988. They concede on appeal, however, that the same statute of limitations should apply to these claims as to the section 1983 claim.

2 O.C.G.A. Sec. 9-3-33 provides:

Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.

3 In Jones the court applied Wilson v. Garcia retroactively. 763 F.2d at 1253 n. 2. Jones, however, retroactively applied a longer statute of limitations, and the court noted that the defendants did not challenge retroactive application. Moreover, as we discuss below, the propriety of retroactive application of Wilson v. Garcia may vary from state to state.

4 O.C.G.A. Sec. 9-3-32 provides:

Actions for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues.

5 O.C.G.A. Sec. 9-3-22 provides:

All actions for the enforcement of rights accruing to individuals under statutes or acts of incorporation or by operation of law shall be brought within 20 years after the right of action has accrued; provided, however, that all actions for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime shall be brought within two years after the right of action has accrued.

6 In Smith the plaintiff contended that prior to Wilson v. Garcia a six-year statute applied to his claim. Indeed, prior to Wilson v. Garcia, but after the plaintiff filed his action, the Third Circuit applied the six-year statute to a case analogous to the plaintiffs’. 764 F.2d at 195. Because that precedent was not established until after the plaintiff filed his action, appellant had no reason to rely on a six-year period, and Wilson v. Garcia could be applied retroactively. Id. We find the reasoning of the Smith court persuasive.

7 The appellants did not file a motion to remand the state law claims. The district court, however, sua sponte dismissed the claims against the state defendants after it dismissed the claims against the federal defendants. In any event, section 1447(c) requires the district court to remand if it finds no jurisdiction, regardless of whether a motion is filed.”

Apr 21 17

Seeking Employment

by merlin

Though I am compelled to continue with my ongoing quasi-pro bono effort to assist with Sex Offender reform in the State of Georgia, my current circumstances require that I pursue further third-party employment.

 

I will not seek a short-term job, but rather am seeking to find a place I can stay and do good over the long-term.  If you follow this blog and are in a position to do so, you are welcome to make a competitive offer.  I am applying to firms, and am in need of an actual, separate employer.

Apr 18 17

Connection Between Federal Rules and Georgia Statutory Interpretation?

by merlin

An issue that I have taken with the State’s position regarding the execution of its laws regarding removal from the Sex Offender Registry is the proper Discovery scheme to be applied, and I believe that my position is supported by the way that SORNA, the federal Sex Offender Registration and Notification Act, is handled as concerns Discovery efforts under the federal scheme.  The statute is unabashedly civil and, as such, is subject to the provisions of the Federal Rules of Civil Procedure.  Rule 26 provides the scope of information that is available under this broad statutory scheme and also appears to be the underlying model for the Civil Discovery scheme that I have urged the Courts to adopt regarding petitions for removal from the Georgia Sex Offender Registry.

 

FRCP 26 requires mandatory, up-front disclosures immediately (“without awaiting a discovery request”).  It sets a time limit for such disclosures and for objections to be made, and establishes what privileges are applicable.  It sets down certain requirements for the use of experts, which would seem to be absolutely relevant in the case of a person seeking removal from the Sex Offender Registry.  It establishes the scope of Discovery (and, as should be noted, this same standard is reflected in the Georgia Code).  Lastly, it requires that the attorney responsible for responding to the Discovery items put forward take personal responsibility for them.  This seems very, very important for establishing responsibility (such as responsibility for evaluating a person’s likelihood of future criminal sexual conduct).

 

The text of FRCP 26 is as follows (taken in part from the excellent legal information website operated by Cornell University).  It reads, in pertinent part, as follows:

“(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii) an action by the United States to collect on a student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the

court, if the witness is not required to provide a written report, this disclosure must state:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

(i) at least 90 days before the date set for trial or for the case to be ready for trial; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.

(E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).

(3) Pretrial Disclosures.

(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

(i) the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises;

(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and

(iii) an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.

(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause.

(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.

(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(3) Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or otherwise adopted or approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person’s oral statement.

(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:

(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and

(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.

(5) Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

(d) Timing and Sequence of Discovery.

(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.

(2) Early Rule 34 Requests.

Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) to that party by any other party, and

(ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unlessthe parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:

(A) methods of discovery may be used in any sequence; and

(B) discovery by one party does not require any other party to delay its discovery.

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.

(f) Conference of the Parties; Planning for Discovery.

(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).

(2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;

(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

(4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:

(A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and

(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.

(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name—or by the party personally, if unrepresented—and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) with respect to a disclosure, it is complete and correct as of the time it is made; and

(B) with respect to a discovery request, response, or objection, it is:

(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.

(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.”

Mar 25 17

What is a “Similar Transaction” Barring Release from the Georgia Sex Offender Registry?

by merlin

The Georgia Code statute providing qualifications for release from the Georgia Sex Offender Registry lists certain threshold requirements for eligibility.  One of these is that there be no “evidence of a relevant similar transaction”.  The intent behind such a rule seems evident, if the purpose of the statute is considered, since the Registry exists to keep the public notified about people who have an established propensity for sexual violence.  Otherwise, the Registry is forbidden ex post facto punishment; the law (as every defender of the Registry is fond of reminding its detractors) has been upheld provided it serves the purpose of public notification and is NOT punitive itself.

With this purpose in mind for the barring of persons that committed a “relevant similar transaction”, the rules that bind the Courts pertaining to statutory interpretation are applied to the statutory guidelines:

“In construing a statute, we must consider the legislative intent, “keeping in view at all times the old law, the evil, and the remedy.” Language in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute. Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.”

Echols v. Thomas, 265 Ga. 474, 475 (Ga. 1995).

The case that raises this issue of statutory interpretation is Yelverton v. State, 300 Ga. 312 (Ga. 2016).  Of particular note is the dissent’s insistence on a particular statutory interpretation which, as you may note, appears to bear substantial similarity to the particularly harsh approach to sex offender sentencing and rehabilitation taken in almost all cases by the State.  It is worth noting that the majority of the Court chose to pursue an interpretation that hinged on avoiding an unproven past allegation, insisting on a merciful bent to the law.  Probably the strongest authority for the stance they chose is found at Footnote 15, where it says

“We note that Yelverton’s trial took place before this Court’s decision in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), which clarified that, under our old Evidence Code, the admissibility of similar transaction evidence was governed by former Uniform Superior Court Rule 31.3 (B), and that the State had to make three affirmative showings before similar transaction evidence was admissible. Specifically, before any evidence of independent offenses or acts [could] be admitted into evidence, a hearing [had to be] be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state [had to] make three affirmative showings as to each independent offense or act it [sought] to introduce. The first of these affirmative showings [was] that the state [sought] to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which ha[d] been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing [was] that there [was] sufficient evidence to establish that the accused committed the independent offense or act. The third [was] that there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tend[ed] to prove the latter.”

Their interpretation, (in my opinion) improperly abandoned when the evidentiary Code was updated in 2013, helps the door to rehabilitation stay open, rather than focusing on wasted retribution.  I do not know whether reconsideration was sought for this outcome, but I do not think it was.  If you know, please contact me!  The opinion is below:

__________________________________________________________________

Atlanta November 30, 2016

        The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

        It appearing that the attached opinion decides a second-term appeal, which must be concluded by the end of the September Term, it is ordered that a motion for reconsideration, if any, must be received in the Supreme Court E-Filing/Docket (SCED) System by 4:30 p.m. on Monday, December 5, 2016.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

        I hereby certify that the above is a true extract from the minutes of the Supreme Court of Georgia

        Witness my signature and the seal of said court hereto affixed the day and year last above written.

        /s/, Chief Deputy Clerk

BLACKWELL, Justice.

        More than 25 years ago, Raymond Yelverton was convicted of child molestation and aggravated child molestation, see  Yelverton v. State, 199 Ga. App. 41 (403 SE2d 816) (1991), and as a result, he is required to register as a sexual offender. See OCGA § 42-1-12. Pursuant to OCGA§ 42-1-19 (a) (4), Yelverton filed a petition for release from the registration requirements. The court below denied his petition, noting that evidence of a similar transaction was admitted at his criminal trial, and concluding that the admission of that evidence rendered Yelverton ineligible for release. Yelverton appeals, asserting that the court below misconstrued the law concerning his eligibility for release.1 We agree, and we reverse the judgment below and remand for further proceedings consistent with this opinion.

  • In 1990, Yelverton was tried by a Tift County jury for the molestation of his daughter. The molestation involved fondling and oral sex, and it occurred between August 1984 and July 1987, when his daughter was between the ages of nine and 13 years. See Yelverton, 199 Ga. App. at 42. At trial, the State presented testimony about a contemporaneous sexual encounter between Yelverton and an adult woman, which the criminal court admitted as evidence of his “proclivity toward nonconsensual sexual conduct”:

[The woman] testified that she lived in [Yelverton’s] household for over a year, while she was 19 to 20 years old, and that in 1985 he attempted to have sexual relations with her. [She] testified that one night . . . she awoke suddenly from sleep because [Yelverton], who had entered her room, was touching her vagina. She testified that [Yelverton] left when she told him no.

Id. at 42 (1). According to his petition for release, Yelverton testified at his criminal trial that the sexual encounter with the adult woman happened, but he denied that she was asleep at the time, and he said that the encounter was consensual.2 The jury found Yelverton guilty of child molestation and aggravated child molestation of his daughter, but we do not know what, if anything, the jury thought about the sexual encounter with the adult woman. We have no reason to think that the jury made any finding about that encounter, and in the absence of such a finding, we cannot know whether the jury concluded that the encounter was consensual, concluded that it was not consensual, or disregarded it entirely.

        For the molestation of his daughter, Yelverton was sentenced to imprisonment for 20 years, and he was released on parole in May 2002. Upon his release, he registered as a sexual offender,3 and according to his petition for release, he subsequently was classified by the Sexual Offender Registration Review Board as a Level I offender, a classification that signifies that “the sexual offender is a low sex offense risk and low recidivism risk for future sexual offenses.” OCGA § 42-1-12 (a) (12). See also Gregory v. Sexual Offender Registration Review Board, 298 Ga. 675, 680-682 (1) (784 SE2d 392) (2016). Yelverton completed his sentence in February 2010.

        In March 2015, Yelverton filed his petition for release in the Superior Court of Tift County,4 alleging that he is eligible for release under OCGA § 42-1-19 (a) (4). In pertinent part, that paragraph provides as follows:

An individual required to register pursuant to Code Section 42-1-12 may petition a superior court for release from registration requirements . . . if the individual . . . [h]as completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) of Code Section 17-10-6.2. OCGA § 42-1-19 (a) (4).5 If the court in which the petition is filed finds that the petitioner satisfies these conditions and is, therefore, eligible for release, the court then must consider the likelihood that the petitioner will commit additional sexual offenses. If the court “finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense,”6 the court has discretion to release the petitioner from the registration requirements. OCGA § 42-1-19 (f). When presented with a petition for release, a court may consider “[a]ny evidence introduced by the petitioner,” OCGA § 42-1-19(d)(1), “[a]ny evidence introduced by the district attorney or sheriff,” OCGA § 42-1-19(d)(2), and “[a]ny other relevant evidence.” OCGA § 42-1-19(d)(3).

        In this case, the court below determined that Yelverton was not eligible for release under OCGA § 42-1-19 (a) (4) because he did not meet all of the criteria set forth in OCGA § 17-10-6.2 (c) (1). Originally enacted in 2006,7 OCGA § 17-10-6.2 concerns sentencing for certain sexual offenses.8 Subsection (b) requires a sentencing court to impose a mandatory minimum sentence, but subsection (c) permits a sentencing court to deviate from the mandatory minimum sentence if the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) are satisfied. Those criteria are as follows:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17-10-6.2 (c) (1) (A)-(F).

In 2010, the General Assembly incorporated these same criteria by reference into OCGA § 42-1-19, specifying that satisfaction of the criteria is a necessary condition of eligibility for release from the sexual offender registration requirements under OCGA § 42-1-19 (a) (4).9

        The court below determined that Yelverton failed to meet the criterion set forth in OCGA § 17-10-6.2 (c) (1) (C), and for that reason, he is not eligible for release under OCGA § 42-1-19 (a) (4). That determination appears to have been based entirely on the fact that evidence of the sexual encounter with an adult woman was admitted against Yelverton as a “similar transaction” at his criminal trial. The court below explained:

[Paragraph] (a) (4) specifically states a person seeking relief must meet the criteria set forth in OCGA § 17-10-6.2 (c) (1) (A) – (F). Because there was evidence of a similar transaction admitted at the trial of his case and deemed relevant by the original trial court, Petitioner does not meet the criteria in OCGA § 17-10-6.2 (c) (1) and thus cannot be granted relief from registration.

Based on that determination, the court below denied the petition for release.10

        Yelverton contends that the court below misconstrued OCGA § 17-10-6.2 (c) (1) (C), as that provision is incorporated by reference in OCGA § 42-1-19 (a) (4). In particular, Yelverton argues that a decision to admit evidence of an independent act against the accused in a criminal trial does not always and necessarily require a finding that there is “evidence of a relevant similar transaction” for the purposes of OCGA §§ 17-10-6.2 (c) (1) (C) and 42-1-19 (a) (4). For that reason, Yelverton says, a court considering a petition for release under OCGA § 42-1-19 (a) (4) must decide for itself whether the evidence presented against the petitioner in his criminal trial — or other evidence presented at the hearing on the petition for release — amounts to “evidence of a relevant similar transaction.” About these things, Yelverton is correct.

        Only a few days ago, this Court considered the meaning of OCGA § 17-10-6.2 (c) (1) (C) — albeit in the context of criminal sentencing, not a petition for release from sexual offender registration requirements — in Evans v. State, ___ Ga. ___ (Case No. S16G0280, decided Nov. 21, 2016). There, the defendant was tried and convicted of child molestation and the sexual exploitation of a child. When the trial court sentenced the defendant for the child molestation, the court concluded that it could not deviate from the mandatory minimum sentence because there was “evidence of a relevant similar transaction,” namely, the sexual exploitation of a child of which the defendant also was convicted. We upheld the imposition of the mandatory minimum sentence, notwithstanding that the evidence of the sexual exploitation was admitted at trial not as a “similar transaction,” but instead as evidence of a crime charged in the indictment. To begin, we explained that “[t]he term ‘relevant similar transaction’ is not defined in OCGA § 17-10-6.2, but when that statute was enacted in 2006, ‘similar transaction’ had a well established legal meaning, and referred to an act independent of the criminal charge at issue, but similar to it.” Id. at ___ (Slip Op. at 3-4) (citation omitted). Even so, we noted, “similar transaction” has differing usages in different contexts. In the context of criminal trials under our old Evidence Code, “similar transaction” commonly was used as shorthand to describe evidence of an act independent of the crimes charged in the indictment, which was offered and admitted for a particular purpose under the standard that this Court laid down in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). See Evans, ___ Ga. at ___ (Slip Op. at 10). But in the context of sentencing, we explained, “relevant similar transaction” — as that term is used in OCGA § 17-10-6.2 (c) (1) (C) with reference to the mandatory minimum sentence for a sexual offense — is most naturally and reasonably understood to mean an independent but similar sexual offense that shows the defendant to be a repeat sexual offender, whether or not that independent offense is charged in the same indictment, charged in a separate indictment, or uncharged. See id. at ___ (Slip Op. at 12). In reaching that conclusion, we drew heavily upon the context of OCGA § 17-10-6.2 (c) (1) (C), which suggests that the General Assembly meant by that provision to “prohibit any downward deviation from the mandatory minimum sentence when the defendant is one who commits multiple separate sexual offenses.” Id. Our reasoning in Evans is instructive here.

        Just as the statutory context of OCGA § 17-10-6.2 (c) (1) (C) suggests that the provision is most naturally and reasonably understood to prohibit deviations from the mandatory minimum sentence for repeat sexual offenders, the context of its incorporation by reference into OCGA § 42-1-19 (a) (4) suggests that it is likewise most naturally and reasonably understood to render a sexual offender ineligible for release from the registration requirements if he has committed independent but similar sexual offenses that show him to be a repeat offender.11 Indeed, even when a sexual offender is not categorically ineligible for release under OCGA § 42-1-19 (a) (4), a superior court properly may release the offender from the registration requirements only upon a finding “by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.” OCGA § 42-1-19 (f). Moreover, the likelihood of a sexual offender committing additional sexual offenses is the basis of the three-tiered classification that is integral to the sexual offender registration scheme as a whole. See, e.g., OCGA §§ 42-1-12 (a) (12), (a) (13), (a) (21) (B), 42-1-14 (a). As it is used in OCGA § 17-10-6.2 (c) (1) (C), “evidence of a relevant similar transaction” has the same meaning in both the sentencing and sexual offender registration contexts.

        Accordingly, as it is used in OCGA § 17-10-6.2 (c) (1) (C) and incorporated by reference in OCGA § 42-1-19 (a) (4), “evidence of a relevant similar transaction” does not simply mean evidence of an independent act that is admitted pursuant to the Williams standard (under the old Evidence Code) — or OCGA § 24-4-404 (b) (under the new Evidence Code) — in a case in which the defendant is charged with a sexual offense. Indeed, not all “similar transaction” evidence admitted pursuant to the Williams standard is, in fact, evidence of an independent sexual offense, inasmuch as “similar transaction evidence was not limited to a defendant’s previous illegal conduct.” State v. Ashley, 299 Ga. 450, 455 (2) (a) (788 SE2d 796) (2016) (citations omitted). See also Alatise v. State, 291 Ga. 428, 431 (4) (728 SE2d 592) (2012). Here, of course, the evidence offered by the State against Yelverton at his 1990 molestation trial about the encounter with an adult woman potentially demonstrates an independent and similar sexual offense, inasmuch as the woman testified that Yelverton touched her sexually and without her consent. See OCGA § 16-6-22.1. Nevertheless, Yelverton claimed that the encounter was consensual, and we do not know how the jury assessed that evidence, if at all. Nor do we know what the criminal trial court thought of the evidence. To admit it as a “similar transaction” at the 1990 molestation trial, the criminal trial court did not have to find that Yelverton actually touched the woman without her consent. Rather, the criminal trial court only had to find that the State had made a prima facie showing, such that the jury could find by a preponderance of the evidence that Yelverton had done so (even if the judge did not believe the witness). See Freeman v. State, 268 Ga. 185, 187-188 (4) (486 SE2d 348) (1997) (adopting standard of proof for admissibility of other acts evidence established under Federal Rule of Evidence 404 (b) by Huddleston v. United States, 485 U. S. 681, 685 (108 SCt 1496, 99 LE2d 771) (1988)). For that reason, neither the verdict nor the evidentiary ruling in the 1990 molestation trial can be interpreted as a definitive determination that Yelverton touched the woman without her consent and thereby committed a sexual offense. Accordingly, neither the verdict nor the evidentiary ruling conclusively establishes that the encounter with the woman is a “relevant similar transaction” for the purposes of OCGA §§ 17-10-6.2 (c) (1) (C) and 42-1-19 (a) (4).

        In these circumstances, it was for the court below — the court hearing the petition for release — to determine for itself whether there is “evidence of a relevant similar transaction” that would render Yelverton ineligible for release. The court below erred when it failed to make such a determination, and so, we must reverse its judgment. We remand the case to the court below for further proceedings consistent with this opinion.

      In light of our determination that the court below misconstrued the applicable statutory law and that its judgment must be reversed, we need not reach the constitutional issue raised by Yelverton. See note 1 supra.

        Judgment reversed and case remanded. All the Justices concur, except Thompson, C. J., and Melton, J., who dissent.

        MELTON, Justice, dissenting.

        Because the majority’s interpretation of OCGA § 17-10-6.2 (c) (1) (C) runs contrary to the plain meaning of the statute as expressed by the Legislature, I must respectfully dissent from the majority’s erroneous conclusion that the removal court erred by concluding that it could not remove Yelverton from the sex offender registry due to the existence of evidence of a relevant similar transaction that had been properly admitted into evidence at Yeleverton’s 1990 child molestation trial.

        As noted by the majority, after completing his twenty-year sentence for child molestation and aggravated child molestation, on July 15, 2011, Yelverton  filed a petition for removal from the sex offender registry under § 42-1-19 (a) (4), which allows removal only if the offender

[h]as completed all prison, parole, supervised release, and probation for the offense which required registration . . . and meets the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) of Code Section 17-10-6.2.

        If the offender meets all of the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) of OCGA § 17-10-6.2, [t]he [removal] court may issue an order releasing the individual from registration requirements or residency or employment restrictions, in whole or part, if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.

OCGA § 42-1-19 (f).

        On March 5, 2012, the removal court properly denied the petition for removal, finding that, because “evidence of a relevant similar transaction” had been properly introduced at Yelverton‘s original 1990 trial,12 the court could not “now second guess the admissibility or relevance” of that similar transaction for purposes of releasing Yelverton from the registration requirements. See OCGA § 17-10-6.2 (c) (1) (C) (sexual offender can only be removed from sex offender registry where “[t]he [removal] court has not found evidence of a relevant similar transaction”).

        Over two years later, on March 9, 2015, Yelverton filed a second petition for removal from the sex offender registry.13 However, on June 12, 2015, the removal court also denied this petition, explaining:

It is not necessary. . . for this Court to consider whether [Yelverton] meets the additional requirements of 42-1-19 (c) (2) or whether he poses a substantial risk of perpetrating any future dangerous sexual offense, because he does not meet the initial criteria for relief under 42-1-19 (a) (4) due to the similar transaction evidence admitted in the trial of his case. . . . Because there was evidence of a similar transaction admitted at the trial of his case and deemed relevant by the original trial court, [Yelverton] does not meet the criteria in OCGA § 17-10-6.2 (c) (1) and thus cannot be granted relief from registration.

        Additionally, the removal court rejected Yelverton’s constitutional argument that, as applied to him, the interplay of OCGA § 42-1-19 (a) (4) and OCGA § 17-10-6.2 (c) (1) resulted in the imposition of ex post facto punishment.

        The removal court was correct on both issues. With regard to its inability to remove Yelverton from the sex offender registry, because OCGA § 42-1-19 (a) (4) requires that all of the criteria of OCGA §§ 17-10-6.2 (c) (1) (A) through (c) (1) (F) be met before a sexual offender may be considered for removal from the registration requirements, and because “evidence of a relevant similar transaction” existed from Yelverton’s 1990 trial, the removal court properly concluded that Yelverton did not qualify for removal from the sex offender registry as a matter of law.

        Again, OCGA § 17-10-6.2 (c) (1) (C) provides that a sexual offender may only be considered for removal from the registration requirements where “[t]he court has not found evidence of a relevant similar transaction.” Id. In determining whether the removal court’s interpretation of this statute was correct, “we apply the fundamental rules of statutory construction that require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citations omitted.Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003). In this regard, “we must presume that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). We must also seek to effectuate the intent of the legislature. OCGA § 1-3-1 (a). In doing so, we must keep in mind that, while “[t]he common and customary usages of the words [in a statute] are important . . . so is their context.” (Citations omitted.) Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015). To find such context, a court “construing language in any one part of a statute . . . should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997).

        Bearing these principles in mind, a straightforward reading of OCGA § 17-10-6.2 (c) (1) (C) reveals that, where the removal court finds in the record in the defendant’s particular case that evidence of a relevant similar transaction already exists from the defendant’s original trial, that defendant may not be considered for removal from the registration requirements. OCGA § 17-10-6.2 (c) (1) (C) only allows a sexual offender to be considered for removal from the registration requirements where “[t]he [removal] court has not found evidence of a relevant similar transaction.” Where, as here, a relevant and admissible similar transaction had already been admitted into evidence in Yelverton’s 1990 trial, the removal court could not ignore the existence of this similar transaction and claim that the removal court itself “has not found evidence of a relevant similar transaction” simply because it was not the court that determined the initial relevance and admissibility of the similar transaction in the defendant’s case. Because “evidence” of a relevant similar transaction existed in the record from Yelverton’s trial, once the removal court found that it existed, the removal court was prohibited from further considering Yelverton’s removal from the sex offender registry.14 Id.

        Indeed, at the time of Yelverton’s trial in 1990, for similar transaction evidence to be admissible, the State had to make two showings:

       First, there [had to] be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there [had to be] sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tend[ed] to prove the latter. Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952); Howard v. State, 211 Ga. 186 (84 SE2d 455) (1954).15  French v. State, 237 Ga. 620, 621 (3) (229 SE2d 410) (1976).

     The State made these showings to the trial court with respect to a separate sexual offense committed by Yelverton, and the admission into evidence of this separate offense as a similar transaction at trial was upheld on appeal. Yelverton, supra, 199 Ga. App. at 43 (1). Therefore, there can be no dispute that “evidence” of a relevant similar transaction existed in connection with the child molestation case against Yelverton in 1990 that led to his conviction and his need to register as a sexual offender. The Legislature has made no distinction in the plain text of OCGA § 17-10-6.2 (c) (1) (C) between “relevant similar transaction[s]” admitted at trial under the standards that existed at the time of Yelverton’s trial and the standards that existed thereafter. See Williams, supra. See also OCGA § § 24-4-414 and 24-4-404 (b). Instead, the statute focuses on the mere existence of “evidence” of a relevant similar transaction under the specific circumstances of a particular defendant’s case. See OCGA § 17-10-6.2 (c) (1) (C). Once such a relevant similar transaction has been found, a removal court cannot ignore its existence to allow for the defendant to become eligible for removal from the sex offender registry. Id.

   Yelverton and the majority argue that OCGA § 17-10-6.2 (c)(1)(C) should be interpreted to find that the Legislature intended for the court reviewing a petition for removal to make an independent determination about whether a previously admitted similar transaction is still “relevant” to the case of the convicted sexual offender at the time that the offender has petitioned for removal. However, as shown above, this interpretation misconstrues the plain language of OCGA § 17-10-6.2 (c) (1) (C) indicating that a petitioner can only be considered for removal from the registration requirements where evidence of a relevant similar transaction does not already exist at the time that the defendant petitions for removal. Id. Also, as explained more fully below, when read in its proper context, OCGA § 17-10-6.2 (c)(1)(C) does not reveal a Legislative intent for the court reviewing a petition for removal to make a present and independent determination about similar transactions from the past that have already been determined to be relevant to a sexual offender’s case. Instead, the Legislature has revealed an intent for the reviewing court to accept the circumstances as they existed at the time of the sexual offender’s conviction when considering its determination as to whether the sexual offender may be appropriately removed from the sex offender registry.

        In this connection, the language of OCGA § 17-10-6.2 (c)(1)(C) must be read in conjunction with the provisions of OCGA § 17-10-6.2 (c)(1) as a whole to find the proper legislative context for that particular subparagraph. See Sikes, supra. This is especially true where, as here, a sexual offender cannot be considered for removal from the registry requirements if any of “the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of [OCGA §] 17-10-6.2” – including the requirement that the court has not found evidence of a relevant similar transaction under subparagraph (c) (1) (C) – have not been met. OCGA § 42-1-19 (a)(4). The remaining criteria that must be met under OCGA § 17-10-6.2 (c)(1) include:

A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 [i.e., “Sexual Offenses”] or Part 2 of Article 3 of Chapter 12 of Title 16 [i.e., “Obscenity and Related Offenses” pertaining to minors], nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

* * *

D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

(Emphasis supplied.) Id.

        Notably, every single factor to be considered for determining whether a sexual offender may be removed from the registration requirements looks backwards in time to the state of affairs that existed at the time that the offender engaged in the activities that gave rise to his or her conviction. If the offender has prior convictions for sexual offenses; used a deadly weapon during the crime that gave rise to his or her need to register as a sexual offender; physically harmed the victim during the crime in question; transported the victim during the crime; or physically restrained the victim during the crime; the offender cannot be removed from the sex offender registry. See OCGA § 42-1-19 (a)(4) and OCGA § 17-10-6.2 (c)(1). The court reviewing a petition for removal makes no independent determination about these factors that already existed at the time of the offense that led to the perpetrator’s need to register. If any the factors were present at the time of the conviction that led to the petitioner’s registration, the petitioner cannot be removed from the registration requirements. Id.

        As is the case with all of the other factors outlined in OCGA § 17-10-6.2 (c)(1), when the record before the removal court reveals the existence of evidence of a relevant similar transaction from the defendant’s trial, the existence of that similar transaction bars a petitioner from being removed from the sex offender registry. This shows a consistent Legislative intent in OCGA § 17-10-6.2 to ensure that those who have engaged in certain violent or other statutorily prohibited conduct in the past cannot take advantage of the opportunity to be removed from the sex offender registration requirements. Specifically, in the case of OCGA § 17-10-6.2 (c)(1)(C), if “evidence” exists to show that a petitioner has engaged in independent conduct in the past that was admissible as a relevant similar transaction in that sex offender’s trial, that defendant is not eligible to be removed from the sex offender registry. Such a scheme falls directly in line with the Legislature’s goal of reducing the likelihood that individuals who “pose a substantial risk of perpetrating any future dangerous sexual offense” will be released from the sexual offender registration requirements. OCGA § 42-1-19 (f).

        I therefore believe that the trial court properly interpreted OCGA § 42-1-19 (a)(4) and OCGA § 17-10-6.2 (c)(1)(C), and would find no error in the trial court’s denial of Yelverton’s petition for removal from the sex offender registration requirements.

        Because I disagree with the majority’s conclusion that the trial court erred in its interpretation of OCGA § 42-1-19 (a)(4) and OCGA § 17-10-6.2 (c)(1)(C), I also disagree with its failure to reach the constitutional issue addressed by the removal court regarding alleged ex post facto punishment being imposed by the denial of Yelverton’s petition for removal from the sex offender registry. With regard to this constitutional issue, I would conclude that OCGA § 42-1-19 simply is not an ex post facto law:

[A]n ex post facto law punishes conduct which was innocent when done; alters the quality or degree of, or inflicts a greater punishment for, a crime committed previously; requires less or different evidence than was required before the crime was committed; or deprives the offender of any substantial right possessed at the time the offender committed the act.  (Citations omitted.) 

Thompson v. State, 278 Ga. 394, 395 (603 SE2d 233) (2004).

           OCGA § 42 -1-19 does not impose any sort of criminal punishment or deprive Yelverton of any substantial right that he possessed at the time that he committed his offenses. Rather, the statute provides a means for certain qualified individuals to be removed from the sex offender registry – a registry which, itself, does not impose any punishment through an ex post facto law. See Smith v. Doe, 538 U. S. 84 (II) (A) (123 SCt 1140, 155 LE2d 164) (2003) (statutory requirement for retroactive registration of sex offenders was nonpunitive and did not itself constitute an ex post facto law).The fact that Yelverton has to remain on the sex offender registry in light of his failed petition does nothing to change the circumstances that existed prior to the filing of his petition. He was not being punished through an ex post facto law from having to register as a sex offender prior to filing his petition, nor is he being punished now through the law that would have allowed him to be removed from the sex offender registry had he been qualified for such removal.

        For all of the aforementioned reasons, I respectfully dissent from the majority.

        I am authorized to state that Chief Justice Thompson joins in this dissent.

——–

Footnotes:

  1. Yelverton filed an application for discretionary appeal, see OCGA § 5-6-35 (a) (5.2), and we granted his application. Besides his contention that the court below misconstrued the law concerning his eligibility, Yelverton also argues that the sexual offender registration requirements are unconstitutional as applied to him. Although we need not resolve the constitutional question to decide this appeal, we note that the constitutional question forms the basis for our exercise of appellate jurisdiction in this case. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1) (Supreme Court has appellate jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question”).
  2. The record of the criminal trial was not made a part of the record of the proceedings on the petition for release. For that reason, our only information about what happened at the criminal trial comes from the decision of the Court of Appeals in Yelverton and the petition itself. Because the facts alleged in the petition appear to be consistent with Yelverton and uncontroverted (at least at this point), we accept the truth of those allegations for the purposes of this appeal.
  3. General Assembly first adopted the sexual offender registration requirements in 1996. See Ga. L. 1996, p. 1520. Those requirements apply, however, to “any individual who . . . [h]as previously been convicted of a criminal offense against a victim who is a minor and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996.” OCGA § 42-1-12 (e) (3). An offense that “consists of . . . [c]riminal sexual conduct toward a minor” is a “criminal offense against a victim who is a minor,” OCGA § 42-1-12 (a) (9) (A), and child molestation and aggravated child molestation are “criminal offense[s] against a victim who is a minor.” See Spivey v. State, 274 Ga. App. 834, 837 (2) (a) (619 SE2d 346) (2005). Yelverton is, therefore, subject to the registration requirements.
  4. A petition for release under OCGA § 42-1-19 must be filed “in the superior court of the jurisdiction in which the [petitioner] was convicted [of the crime that renders him subject to the registration requirements],” unless the petitioner was convicted in a jurisdiction outside Georgia. OCGA § 42-1-19 (b) (1).
  5. To be eligible for release under OCGA § 42-1-19 (a) (4), a petitioner also must show either that ten years have elapsed since his completion of his sentence, see OCGA § 42-1-19 (c) (2) (A), or that he has been classified by the Sexual Offender Registration Review Board as a Level I sexual offender. See OCGA § 42-1-19 (c) (2) (B). As we noted earlier, Yelverton alleged in his petition he has been classified as a Level I sexual offender.
  6. In this context, a “[d]angerous sexual offense” is any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this paragraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:

(i)  Aggravated assault with the intent to rape in violation of Code Section 16-5-21;

(ii) Kidnapping in violation of Code Section 16-5-40 which involves a victim who is less than 14 years of age, except by a parent;

(iii) Trafficking a person for sexual servitude in violation of Code Section 16-5-46;

(iv) Rape in violation of Code Section 16-6-1;

(v) Sodomy in violation of Code Section 16-6-2;

(vi) Aggravated sodomy in violation of Code Section 16-6-2;

(vii) Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older;

(viii) Child molestation in violation of Code Section 16-6-4;

(ix) Aggravated child molestation in violation of Code Section 16-6-4, unless the person was convicted of a misdemeanor offense;

(x) Enticing a child for indecent purposes in violation of Code Section 16-6-5;

(xi) Sexual assault against persons in custody in violation of Code Section 16-6-5.1;

(xii) Incest in violation of Code Section 16-6-22;

(xiii) A second conviction for sexual battery in violation of Code Section 16-6-22.1;

(xiv) Aggravated sexual battery in violation of Code Section 16-6-22.2;

(xv) Sexual exploitation of children in violation of Code Section 16-12-100;

(xvi) Electronically furnishing obscene material to minors in violation of Code Section 16-12-100.1;

(xvii) Computer pornography and child exploitation in violation of Code Section 16-12-100.2;

(xviii) Obscene telephone contact in violation of Code Section 16-12-100.3; or

(xix) Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.

OCGA § 42-1-12 (a) (10) (B.1).

  1. See Ga. L. 2006, p. 379, § 21. The statute subsequently was amended in 2013. See Ga. L. 2013, p. 222, § 9.
  2. The sexual offenses to which OCGA § 17-10-6.2 applies are identified in subsection (a):

As used in this Code section, the term “sexual offense” means:

(1) Aggravated assault with the intent to rape, as defined in Code Section 16-5-21;

(2) False imprisonment, as defined in Code Section 16-5-41, if the victim is not the child of the defendant and the victim is less than 14 years of age;

(3) Sodomy, as defined in Code Section 16-6-2, unless subject to the provisions of subsection (d) of Code Section 16-6-2;

(4) Statutory rape, as defined in Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older;

(5) Child molestation, as defined in subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4;

(6) Enticing a child for indecent purposes, as defined in Code Section 16-6-5, unless subject to the provisions of subsection (c) of Code Section 16-6-5;

(7) Sexual assault against persons in custody, as defined in Code Section 16-6-5.1;

(8) Incest, as defined in Code Section 16-6-22;

(9) A second or subsequent conviction for sexual battery, as defined in Code Section 16-6-22.1; or

(10) Sexual exploitation of children, as defined in Code Section 16-12-100.

OCGA § 17-10-6.2 (a).

    1. See Ga. L. 2010, p. 168, § 15.

 

10.

  • This is Yelverton’s second petition for release. He filed his first petition in July 2011. That petition was denied upon the same ground as the second petition. Yelverton attempted to appeal from the denial of his first petition, but his appeal was dismissed by the Court of Appeals because he failed to file an application for discretionary review. We note that OCGA § 42-1-19 (b) (3) contemplates the filing of successive petitions for release, and in any event, the State does not contend in this appeal that the denial of the first petition is res judicata or otherwise works an estoppel to bar the second petition.

 

 

11.

  • If a sexual offender has a prior conviction for a sexual offense, he is rendered ineligible for release from the registration requirements by the incorporation of OCGA § 17-10-6.2 (c) (1) (A) into OCGA § 42-1-19 (a) (4). The incorporation of OCGA § 17-10-6.2 (c) (1) (C) deals with independent sexual offenses for which the sexual offender has not previously been convicted.

 

 

1.

  • Indeed, the Court of Appeals upheld the admissibility of the similar transaction introduced at Yelverton’s 1990 trial. Yelverton v. State, 199 Ga. App. 41 (1) (403 SE2d 816) (1991).

 

 

2.

  • OCGA § 42-1-19 (b) (3) says, “If a petition for release [from the sex offender registry] is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.”

 

 

3.

  • This is not to say that, in a situation where a similar transaction was not used at a defendant’s trial, a removal court cold not also find to be relevant evidence of a similar transaction that arose after the defendant’s trial and before that defendant petitioned for removal from the sex offender registry.

 

 

4.

  • We note that Yelverton’s trial took place before this Court’s decision in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), which clarified that, under our old Evidence Code, the admissibility of similar transaction evidence was governed by former Uniform Superior Court Rule 31.3 (B), and that the State had to make three affirmative showings before similar transaction evidence was admissible. Specifically,

 

before any evidence of independent offenses or acts [could] be admitted into evidence, a hearing [had to be] be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state [had to] make three affirmative showings as to each independent offense or act it [sought] to introduce. The first of these affirmative showings [was] that the state [sought] to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which ha[d] been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing [was] that there [was] sufficient evidence to establish that the accused committed the independent offense or act. The third [was] that there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tend[ed] to prove the latter.

Id. at 642 (2) (b).
Uniform Superior Court Rule 31.3 (B) was later deleted after the enactment of Georgia’s new Evidence Code, which took effect on January 1, 2013. The admissibility of similar transaction evidence in child molestation cases is now governed by OCGA § 24-4-414. See also OCGA § 24-4-404 (b).

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