Jane Doe v. Investigator Cheryl Smith ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11140
________________________
D.C. Docket No. 3:17-cv-00038-TCB
JANE DOE,
Plaintiff-Appellant,
versus
INVESTIGATOR CHERYL SMITH,
individually,
CAPTAIN TERESA PILCHER,
individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 15, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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This appeal involves a tragic case of three young girls who were molested by
their uncle and juvenile cousin while their mother, Jane Doe, was on vacation on a
cruise ship. After Doe returned from vacation, her daughters informed her of the
abuse, and she alerted the state authorities. During an investigation, Deputy Cheryl
Smith learned that the juvenile cousin, R.L., inappropriately touched all three girls
previously and that Doe knew of this prior abuse. Deputy Smith also learned that,
although Doe knew of the past incidents, she continued to allow her daughters to
play with R.L. Indeed, Deputy Smith uncovered evidence suggesting that Doe
permitted her daughters to spend the night at R.L.’s home while she was on
vacation. Based on her investigation, Deputy Smith obtained arrest warrants for
Doe for second-degree cruelty to children, Ga. Code Ann. § 16-5-70(c), for
permitting her daughters to stay with their previous molester while she was on
vacation. Eventually, the state court dismissed the charges against Doe for lack of
prosecution. Doe then sued Deputy Smith for malicious prosecution under federal
and state law. The district court granted summary judgment in favor of Deputy
Smith based on qualified immunity and official immunity. We affirm.
I. BACKGROUND
Ordinarily, we do not refuse to identify parties to a suit, especially the
parties who chose to initiate the suit in the first place. But the four young girls at
the center of this case did not ask for the horrible events of their lives to be
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unfurled before the public. For that reason, we address each of the children
involved by their initials, their mother by the pseudonym Jane Doe, and any other
adult family members by their first names. With that in mind, we first explain the
relevant individuals before proceeding to explain the series of events that gave rise
to this suit.
Jane Doe is the mother of three daughters: B.D., R.D., and A.D. At the time
of these events, Doe and her daughters lived with Doe’s father and brother. Doe’s
sister and her sister’s former spouse, Jimmy, had three children, including a
daughter named R.L., but those children have lived with Doe’s mother, Donna,
since 2010.
Donna obtained custody of R.L. and her brothers after Jimmy and his wife
neglected them. Jimmy had no contact with his children for years, but a few
months before these events, he began living with Donna and his children. Donna
also provided childcare for Doe, a single mom working full time to support her
daughters. This arrangement meant that Doe’s daughters often played with R.L.
In 2013, Doe learned from her daughters that R.L., then age six, touched
R.D., then age four, in her “No-No spot.” R.D. said that she tried to stop R.L but
R.L. “held her down.” B.D., then age seven, also said that R.L. tried to do the same
to her on a few occasions, but that she was able to stop R.L. Doe reported the
allegations to the children’s teacher and a school counselor. The school counselor
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referred the allegations to the Georgia Division of Family and Children Services.
The Division apparently investigated but took no action.
R.L. began to receive counseling from the school guidance counselor
following the 2013 incident. In 2014, R.L. also started therapy with another
“school-based therapist” who had a specialty in “sex therapy.” Donna says she told
Doe that R.L. was in counseling with both professionals, neither of whom told her
that R.L. could not be around other children. So Doe continued to allow her
daughters to play with R.L, although she says that she imposed a rule that they
could play together only while supervised.
A year later, Doe’s daughters told their paternal grandmother that the son of
a family friend inappropriately touched them. When the paternal grandmother told
Doe “about the situation, [Doe] stated that she did not want to get any agencies
involved and stated that the situation was just ‘kids being kids.’” So, the paternal
grandmother reported the allegations to the state authorities herself.
A forensic investigator with the Carroll County Child Advocacy Center
interviewed B.D. and R.D. about the allegations. During the interview, both girls
also disclosed that R.L. had inappropriately touched them. B.D. explained that R.L.
had pulled B.D. and her two sisters into a closet, forced them to take off their
clothes, and then performed oral sex on them. R.D. similarly disclosed that R.L.
performed oral sex on her and also forced her to reciprocate. After the interviews,
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the forensic investigator says she told Doe about her daughters’ allegations and
stressed that Doe should not leave her daughters unsupervised with R.L. Doe says
she knew something inappropriate happened but was unaware of the specifics. She
agrees that the forensic investigator stressed the need for supervision. Ultimately,
law enforcement and the Division “screened out” the report because the conduct
involved “child on child behaviors” and the “children [did] not reside in the same
household.” Following the 2014 reports, Doe again allowed her daughters to play
with R.L. under supervision at Donna’s home.
In February 2015, Doe and her boyfriend left for a five-day cruise with
Donna and her husband. Doe says she left her three daughters under her father and
brother’s care at her house, and Donna left the three cousins under their father
Jimmy’s care at her house.
While on the cruise, Doe gave permission for her daughters to play with
their cousins at Donna’s house under Jimmy’s supervision. Although Doe says she
did not give permission for her daughters to sleep over at Donna’s house, all six
children ended up staying there for three or four nights with Jimmy as the only
adult supervisor.
While Doe’s daughters stayed at Donna’s home, each of them was sexually
abused. Jimmy exposed his genitals to B.D. and molested A.D. And R.L. molested
R.D. When these molestations occurred, B.D. was age 9, R.L. was age 8, R.D. was
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age 7, and A.D. was age 6. About one week after she returned from her cruise, Doe
learned of the abuse from her daughters.
After communications between Doe, the school counselor, the forensic
investigator, the Division, and the sheriff’s office, Deputy Smith began her
investigation. During her investigation, Deputy Smith collected various documents,
interviewed several people, and observed the forensic interviews of Doe’s
daughters and R.L.
One document Deputy Smith collected was the intake report that the
Division created after the school counselor referred the latest allegations to it. The
intake report expressed “concern[] about [the] parental ability of mom to protect
the children due to this [being] the second time this has happened. There is
concerns about who is supervising the children . . . . This is the second time this
has happened and mom is still allowing the children to go back to this house.” The
report said “[i]mpending dangers have been identified . . . . The family needs
intervention to ensure that the mother follows through with consulting law
enforcement and has protective measures in place.”
Deputy Smith also collected copies of two documents the Division created
after speaking with Doe and her daughters about the new allegations, including a
safety plan and a comment log. The safety plan required Doe’s children to be
supervised at all times and to not have any connection with persons living at
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Donna’s home during the investigation. A Division investigator’s comment log
described her discussions with Doe and Doe’s daughters about the allegations.
According to the Division investigator, A.D. said that R.L. “will do nasty things to
her and Uncle Jimmy will touch her in the wrong place.” The Division investigator
also noted that Doe “gave approval for the girls to go over to [Donna’s] house.”
When Deputy Smith interviewed Doe, they discussed the previous
allegations and Deputy Smith repeatedly asked Doe why she allowed her daughters
to continue to play with R.L. despite R.L.’s history. Doe replied that R.L. was in
therapy, that the family had a rule that the children were to be supervised, that no
professional had told her the children could not play together, and that she
frequently spoke with her daughters about molestation to keep tabs on the
situation. Doe also told Deputy Smith that her daughters were to be at her house
while on vacation, not at Donna’s house. When Deputy Smith asked Doe about
Jimmy’s background, Doe admitted that Jimmy and her sister lost custody several
years beforehand because they neglected their children, and that Jimmy had only
recently returned to their lives.
Deputy Smith also interviewed Donna, who acknowledged the previous
inappropriate touching by R.L. and explained that she had reported the touching to
the school, police, and Division. Donna also admitted to having caught R.L.
inappropriately touching her brother once. Donna said that R.L. had been receiving
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counseling.
Deputy Smith also spoke to the paternal grandmother of Doe’s daughters
and the forensic investigator. Both the paternal grandmother and the forensic
investigator relayed to Deputy Smith what occurred in 2014. And Deputy Smith
obtained copies of various documents describing both the 2013 and the 2014
allegations.
Deputy Smith then observed the forensic investigator’s interviews of Doe’s
daughters and R.L. about the new allegations. R.D. reported having been abused by
R.L. every time she visited Donna’s house. A.D. and B.D. did not say R.L. did
anything to them during the sleepover, but both girls reported Jimmy’s sexual
abuse that weekend. B.D. also described molestation by R.L. two years earlier.
When the forensic investigator interviewed her, R.L. said that Doe permitted Doe’s
daughters to sleep over during the cruise.
Sometime after these interviews, Deputy Smith told the forensic investigator
that she was considering charging Doe as well as Jimmy. The forensic investigator
“supported” Deputy Smith’s inclination to charge Doe. The forensic investigator
believed Doe “had been negligent as a parent . . . and had knowingly and willingly
put her children back in harm’s way.”
Deputy Smith applied for arrest warrants for both Jimmy and Doe. In her
warrant affidavits, Deputy Smith requested warrants to arrest Doe on three counts
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of cruelty to children in the second degree and alleged that Doe “with criminal
negligence cause[d] [her children] . . . cruel or excessive physical or mental pain
by leaving th[e]se child[ren] for several days and nights in the residence with a
previous offender so that [Doe] could go on a cruise . . . .” Deputy Smith says she
orally “highlighted [to the magistrate judge] the facts of the case” and identified
the “previous offender” as the child R.L.
The magistrate judge issued three arrest warrants for Doe for second-degree
cruelty to children under Georgia law—one for each daughter. See Ga. Code Ann.
§ 16-5-70(c). A person commits this offense “when such person with criminal
negligence causes a child under the age of 18 cruel or excessive physical or mental
pain.” Id. Georgia defines “criminal negligence” as “an act or failure to act which
demonstrates a willful, wanton, or reckless disregard for the safety of others who
might reasonably be expected to be injured thereby.” Id. § 16-2-1(b); see also Scott
v. State, 834 S.E.2d 88, 92 (Ga. 2019) (“[C]riminal negligence is the reckless
disregard of consequences, or a heedless indifference to the rights and safety of
others, and a reasonable foresight that injury would probably result.” (internal
quotation marks omitted)).
The same magistrate judge also issued warrants to arrest Jimmy for child
molestation. Ga. Code Ann. § 16-6-4. Jimmy stated in his post-arrest interview that
Doe’s father, mother, and stepfather had approved the children staying with him,
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so he assumed Doe had given permission too.
Although a grand jury indicted Doe on three counts of cruelty to children,
the court later dismissed her criminal case because the state failed to comply with a
speedy trial demand. Because of these events, Doe lost primary custody of her
children.
Doe filed a complaint, 42 U.S.C. § 1983, against Deputy Smith and alleged a
claim of malicious prosecution in violation of the Fourth Amendment. She also
alleged that Deputy Smith maliciously prosecuted her in violation of Georgia law.
The district court granted summary judgment in favor of Deputy Smith on the basis
of qualified immunity and official immunity.
II. STANDARD OF REVIEW
We review de novo a summary judgment based on qualified immunity or
official immunity. See Black v. Wigington, 811 F.3d 1259, 1265 (11th Cir. 2016).
Because Deputy Smith “raised [these] defenses in a motion for summary judgment,
[she] should prevail if there is ‘no genuine dispute as to any material fact’ and [she
is] entitled to [each] immunity ‘as a matter of law.’” Id. (quoting Fed. R. Civ. P.
56(a)). “In making this determination, we view the evidence in the light most
favorable to [Doe] and draw all reasonable inferences in [Doe’s] favor.” Id.
III. DISCUSSION
Doe alleges that Deputy Smith is liable for malicious prosecution under both
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federal and state law, and Deputy Smith responds that she is entitled to qualified
immunity and official immunity. We agree with Deputy Smith.
A. Deputy Smith Is Entitled to Qualified Immunity.
A plaintiff asserting a federal claim for malicious prosecution must prove
both the common-law elements of malicious prosecution and a violation of the
right to be free from unreasonable seizures under the Fourth Amendment. See Paez
v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). The common-law elements of
malicious prosecution require Doe to prove that (1) Deputy Smith instituted or
continued a criminal prosecution, (2) “with malice and without probable cause,”
(3) that terminated in Doe’s favor and (4) caused her damage. Id. A police officer
violates a person’s right under the Fourth Amendment to be free from
unreasonable seizures if she “applies for an arrest warrant” and “should have
known that [her] application failed to establish probable cause.” Black, 811 F.3d at
1267 (internal quotation marks omitted); see also id. (explaining that a malicious
prosecution claim “requires a seizure pursuant to legal process,” which “includes
an arrest warrant” (internal quotation marks omitted)). Probable cause exists “when
the facts and circumstances within the officer’s knowledge, of which he or she has
reasonably trustworthy information, would cause a prudent person to believe,
under the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense.” Paez, 915 F.3d at 1285 (internal quotation marks
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omitted).
The Fourth Amendment prohibits officers from making “statements or
omissions in [a warrant] application that [are] material and perjurious or recklessly
false.” Black, 811 F.3d at 1267 (internal quotations marks omitted); see also Paez,
915 F.3d at 1287 (“Intentional or reckless material misstatements or omissions in a
warrant affidavit thus could violate the Fourth Amendment. Negligent
misstatements or omissions, on the other hand, do not.” (citation omitted)). But a
misstatement or omission does not violate the Fourth Amendment unless it is
“material.” Paez, 915 F.3d at 1287. That is, a violation occurs only if “probable
cause would be negated [once] the offending statement [is] removed or the omitted
information included.” Id.
State actors sued under section 1983 enjoy the protections of qualified
immunity. When an officer acts “within the scope of her discretionary authority at
the time of the alleged misconduct,” the officer can be held liable only if the
plaintiff establishes that the officer “violated a federal statutory or constitutional
right” and “the unlawfulness of [the officer’s] conduct was clearly established at
the time.” Id. at 1284 (internal quotation marks omitted). Although a police officer
who arrests a person without probable cause or who recklessly makes a material
misrepresentation or omission in an application for a warrant violates the Fourth
Amendment, the police officer does not lose the protection of qualified immunity if
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the unlawfulness of her action was not clearly established. See Case v. Eslinger,
555 F.3d 1317, 1327 (11th Cir. 2009). That is, qualified immunity shields a police
officer from suit if “arguable probable cause existed” for the arrest. Id.; see also
Paez, 915 F.3d at 1288 (“[I]f the affidavits (including the omitted information)
would have demonstrated even arguable probable cause . . . then the officers are
entitled to qualified immunity.”).
“Arguable probable cause exists where reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could have
believed that probable cause existed to arrest Plaintiff.” Grider v. City of Auburn,
618 F.3d 1240, 1257 (11th Cir. 2010) (internal quotation marks omitted).
“[I]nevitab[ly,]” an officer “will in some cases reasonably but mistakenly conclude
that probable cause is present, and in such cases those officials should not be held
personally liable.” Id. (internal quotation marks omitted). Although “arguable
probable cause depends on the elements of the alleged crime and the operative fact
pattern,” it does not “require proving every element of a crime.” Id.; accord
Scarbrough v. Myles, 245 F.3d 1299, 1302–03 (11th Cir. 2001). Doe does not
contest that Deputy Smith acted in the scope of her discretionary duties when
arresting her.
Doe argues that Deputy Smith should be denied qualified immunity for two
reasons. First, she argues that Deputy Smith made material misstatements and
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omissions when applying for the arrest warrants that vitiated probable cause. And
even if Deputy Smith made no material misstatement or omission, Doe contends
that Deputy Smith still lacked probable cause to arrest her. We address each
argument in turn.
1. Deputy Smith Made No Material Misrepresentations or Omissions.
Doe argues that Deputy Smith misrepresented or withheld five pieces of
information, any one of which she contends would have vitiated probable cause.
Doe argues that Deputy Smith (1) misrepresented to the magistrate judge that
Jimmy was a previous offender; (2) misrepresented to the magistrate judge that
Doe left her daughters with a previous offender; (3) omitted that Doe followed
professional guidance; (4) misrepresented that Jimmy was not “adequate
supervision”; and, (5) misrepresented that Doe caused two of her children harm.
For purposes of qualified immunity, if Deputy Smith made an intentional or
reckless misrepresentation or omission, we need only decide whether arguable
probable cause would have existed without any misrepresentation or with any
omission. See Paez, 915 F.3d at 1288.
Doe argues that Deputy Smith misrepresented that Jimmy was the previous
offender, but Deputy Smith’s uncontradicted testimony states that she told the
magistrate judge that the previous offender mentioned in the warrant affidavits was
R.L., a minor child. Doe argues that a jury could infer that Deputy Smith lied
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because Deputy Smith misrepresented Jimmy’s offender status to the prosecutor,
the Sherriff, the Division investigator, and the forensic investigator. But even if we
assume that at some point Deputy Smith told these other officials that Jimmy had a
previous record when he did not—an assumption the record does not support as to
all of them—we cannot infer that she also told the magistrate judge that Jimmy
was the previous offender. See Hammett v. Paulding Cty., 875 F.3d 1036, 1049
(11th Cir. 2017) (“[A]n inference based on speculation and conjecture is not
reasonable.” (internal quotation marks omitted)); Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 n.25 (11th Cir. 2011) (“[A]n inference[] is not a suspicion or
a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on
the basis of another fact.” (internal quotation marks omitted)).
Doe argues that telling the magistrate judge that R.L. was the previous
offender would be “recklessly misleading” because R.L. was too young under
Georgia law to be held criminally responsible. See Ga. Code Ann. § 16-3-1. But
see Adams v. State, 707 S.E.2d 359, 362 (Ga. 2011) (explaining that section 16-3-1
does not imply that children are “incapable of performing a[ criminal] act,” does
not “provide[] immunity from criminal prosecution,” and “sets forth [only] an
affirmative defense” (internal quotation marks omitted)). Deputy Smith testified
that she provided an overview of the facts to the magistrate judge when seeking the
warrants and that she told the magistrate judge that “the previous offender [she
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was] referencing was a child” and “explained to the judge what the children
relayed or revealed in their forensic interview[s].” And it is undisputed that R.L.
previously molested her cousins. That R.L. was never charged does not change the
risk she presented to her cousins. A reasonable officer could believe that Doe was
criminally negligent for leaving her children with their previous molester. See Ga.
Code Ann. §§ 16-2-1(b), 16-5-70(c).
Doe next argues that Deputy “Smith misrepresented the facts about the
physical location where Doe left her children.” In the warrant affidavit, Deputy
Smith said that Doe committed cruelty to children in the second degree by “leaving
[these children] for several days and nights in the residence with a previous
offender.” Doe asserts that she did not leave her daughters at Donna’s house where
R.L. lived and did not permit a sleepover. But Deputy Smith was not obliged to
credit Doe’s version of events.
The record is undisputed that Doe permitted at least a short visit during this
period and that Deputy Smith had evidence that Doe also permitted the sleepover.
Neither Deputy Smith nor the magistrate judge were required to credit Doe, her
father, and her brother over other evidence that Doe allowed her daughters to stay
overnight with R.L. at Donna’s home. See Paez, 915 F.3d at 1286. Deputy Smith
did not make an intentional or reckless misrepresentation based on the evidence
she had before her. Id.; see also Franks v. Delaware, 438 U.S. 154, 165 (1978)
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(“[T]ruthful” “does not mean . . . that every fact recited in the warrant affidavit is
necessarily correct [but] . . . that the information put forth is believed or
appropriately accepted by the affiant as true.”).
Next, Doe argues that Deputy Smith omitted from the warrant application
that Doe complied with professional guidance. But, even assuming that Deputy
Smith omitted that information “intentionally or with a reckless disregard for the
accuracy of the affidavit,” inclusion of the information would not have defeated
arguable probable cause. Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.
1997) (internal quotation marks omitted); id. (“[I]ntentional or reckless omissions
will invalidate a warrant only if inclusion of the omitted facts would have
prevented a finding of probable cause.”). No law establishes that following
professional guidance definitively vitiates the elements of second-degree child
cruelty, Ga. Code Ann. § 16-5-70(c). “[A] reasonable officer could have believed”
that Doe committed second-degree child cruelty despite that she allegedly acted in
accordance with professional guidance. Paez, 915 F.3d at 1288 (emphasis
omitted). Moreover, a reasonable officer could also have concluded that Doe did
not heed the professional guidance that the children could play together only with
supervision because it appeared that Doe gave permission for someone who lost
custody of his children due to neglect to supervise six children alone for a lengthy
period of time. See id. at 1286, 1289–90 (“Even if there was an affirmative defense
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. . . that defense does not negate the preliminary determination of probable cause”
because “police officers aren’t lawyers[, so] we do not expect them to resolve legal
questions.”); Scarbrough, 245 F.3d at 1303 n.8 (“Our inquiry in [a] qualified-
immunity analysis is . . . not whether an arrestee’s conduct is a crime or ultimately
will result in conviction.”).
Doe then argues that Deputy Smith misrepresented the adequacy of Jimmy’s
supervision of the children. Doe says that Deputy Smith told the magistrate judge
that Doe should have known that Jimmy was an inadequate caregiver. Doe says
that Deputy Smith should have instead told the magistrate judge that Jimmy had
been on his best behavior for the preceding eight months, had no previous record,
and was a trusted family member.
Even assuming that Deputy Smith intentionally or recklessly omitted those
alleged facts to the magistrate judge, those facts would not vitiate arguable
probable cause. A reasonable officer could still believe that allowing Doe’s
daughters to play and have a sleepover with their previous molester, R.L., was
criminally negligent, especially when the only adult supervisor was someone who
did not have custody of his own children because he neglected them and who had
only recently reentered their lives.
Doe finally argues that it was recklessly false for Deputy Smith to secure
two of the three arrest warrants because only one of her three daughters, R.D., said
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that R.L. touched her during the relevant time period. Deputy Smith alleged in her
warrant affidavits that Doe’s action of leaving each daughter with R.L. caused each
daughter harm. This argument fails too. Although second-degree child cruelty
requires a showing of harm, Deputy Smith could have reasonably believed that all
three girls suffered psychological harm by being left with their previous abuser for
such a significant period. See Ga. Code Ann. § 16-5-70(c) (defining second degree
child cruelty as occurring “when [a] person with criminal negligence causes a child
under the age of 18 cruel or excessive physical or mental pain” (emphasis added));
see also Grider, 618 F.3d at 1257 (explaining that arguable probable cause does
not “require proving every element of a crime”); Scarbrough, 245 F.3d at 1302–03.
Indeed, Deputy Smith told Doe during their first interview that she was concerned
about the psychological impact that R.L.’s molestation would have on Doe’s
daughters. So, even if Deputy Smith neglected to tell the magistrate judge that R.L.
did not physically harm two of the girls, arguable probable cause would still have
existed had she disclosed that fact. Paez, 915 F.3d at 1286 (explaining that
“[p]robable cause is not a high bar” and does not even require a belief that a crime
occurred by a “preponderance of the evidence”) (internal quotation marks
omitted)).
2. Deputy Smith Possessed At Least Arguable Probable Cause.
Doe argues that even if Deputy Smith did not make a misrepresentation or
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omission sufficient to overcome qualified immunity, Deputy Smith lacked
arguable probable cause to arrest her. Again we disagree. Deputy Smith had
arguable probable cause.
When she secured the warrants, Deputy Smith knew that Doe was aware that
R.L. had a history of inappropriately touching each of Doe’s daughters. The
forensic investigator told Doe after the second incident that she had to supervise
her daughters. Doe continued to allow her daughters to play with R.L., and R.L.
touched R.D. every time they played together despite that Doe said the family
followed the supervision rule. Doe admitted and the Division report stated that Doe
gave permission for her daughters to visit R.L. for at least part of the time she was
on the cruise. Doe’s daughters spent several days and nights with R.L., and R.L.
inappropriately touched R.D. during the visit. Jimmy, who had recently moved in
with Donna and had lost custody of his children because he neglected them,
provided the only supervision during the visit. The Division intake report
expressed concern about Doe’s failure to supervise her daughters. And the forensic
investigator familiar with the family history supported charging Doe for
negligence.
Based on these facts, arguable probable cause existed. All arguable probable
cause requires is that a reasonable officer possessing the same information “could
have believed that probable cause existed.” Grider, 618 F.3d at 1257 (internal
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quotation marks omitted). And a reasonable officer could have believed that Doe
acted in “reckless disregard of consequences” that could reasonably be foreseen to
occur by permitting her daughters to visit R.L. after learning that R.L
inappropriately touched her daughters on at least two previous occasions. Scott,
834 S.E.2d at 92 (internal quotation marks omitted).
The argument for arguable probable cause becomes stronger when we
consider R.L.’s statement that Doe allowed her daughters to sleep over. To be sure,
Doe disagrees with the credibility of R.L.’s statement and says that she, her
brother, and her father all told Deputy Smith that Doe did not allow the sleepover.
Although we credit Doe’s and her brother’s statements that they told Deputy Smith
that Doe did not give permission for a sleepover, Doe does not dispute that R.L.
made a statement to the contrary.
We do not ordinarily second guess an officer’s choice to credit one witness
over others. Paez, 915 F.3d at 1286. And it was reasonable for Deputy Smith to
believe R.L. over the adults. Unlike the adults, R.L. had no reason to lie. Doe and
her family, in comparison, were worried they might lose custody of the children if
they were found negligent. When the arrest warrants were secured, Deputy Smith
possessed information suggesting that Doe granted permission for her daughters to
sleep over because R.L. said that was the case, a Division report arguably
supported that statement, and Doe admitted to at least providing permission to visit
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during that time. Arguable probable cause existed.
B. Deputy Smith Is Entitled to Official Immunity.
Doe also brought a claim for malicious prosecution under Georgia law, Ga.
Code Ann. § 51-7-40. Like qualified immunity, “[o]fficial 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.” Bateast v. Dekalb Cty., 572 S.E.2d 756, 757 (Ga. Ct. App. 2002)
(alteration adopted) (internal quotation marks omitted). But Georgia official
immunity and federal qualified immunity do not rise and fall together because
Georgia law requires us to inquire into the official’s “subjective intent.” Jordan v.
Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007).
To overcome official immunity, a plaintiff must establish “actual malice”;
that is, the “deliberate intention to do wrong.” Selvy v. Morrison, 665 S.E.2d 401,
404–05 (Ga. Ct. App. 2008). This standard is “demanding,” Black, 811 F.3d at
1266, because it “requires more than harboring bad feelings or ill will about
another; rather, ill will must also be combined with the intent to do something
wrongful or illegal,” Wyno v. Lowndes Cty., 824 S.E.2d 297, 304 (Ga. 2019)
(internal quotation marks omitted). And because “actual malice” does not include
“implied malice, i.e., the reckless disregard for the rights or safety of others,”
Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga. 2007) (internal quotation marks
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omitted), we cannot “speculate and make assumptions” about improper motive,
Conley v. Dawson, 572 S.E.2d 34, 37 (Ga. Ct. App. 2002). “[A]n inference of
malice is insufficient to overcome [the] immunity defense.” Watkins v. Latif, 744
S.E.2d 860, 863 (Ga. Ct. App. 2013).
Doe argues that Deputy Smith lied to the Sheriff, the forensic investigator,
the prosecutor, and the Division investigator about Jimmy’s status as a previous
offender, but only one witness, the Division investigator, definitively stated that
she believed Deputy Smith told her Jimmy had a previous record. That single
statement is insufficient to establish actual malice. See Conley, 572 S.E.2d at 36–
38 (concluding that plaintiff failed to prove improper motive or actual malice
based on evidence that an officer discounted a witness’s statement and excluded
the statement from the police report).
Doe also argues that Deputy “Smith buried the exculpatory witness
statements of” Doe’s father and brother, who stated that they told Deputy Smith
that Doe did not provide permission for a sleepover. But that assertion is likewise
insufficient to overcome official immunity. See id. “Burying” these statements
does not establish that Deputy Smith deliberately intended to do wrong by
arresting Doe. See Selvy, 665 S.E.2d at 404–05; Conley, 572 S.E.2d at 37–38.
Doe finally argues that Deputy Smith made “statements demonstrat[ing] that
she was unreasonably angry towards Doe,” which motivated her arrest of Doe. But
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evidence of “frustration, irritation, and possibly even anger is not sufficient to
penetrate official immunity.” Tittle v. Corso, 569 S.E.2d 873, 876–878 (Ga. Ct.
App. 2002) (internal quotation marks omitted) (concluding that an officer’s acts of
slamming a suspect against his vehicle, threatening the suspect, and using profanity
in apprehending the suspect did not establish actual malice); see also Selvy, 665
S.E.2d at 406 (concluding that an officer’s use of a derogatory term to refer to the
suspect and derogatory references about the suspect’s boyfriend did not establish
actual malice). Neither “unreasonable conduct” nor “recklessly illegal conduct . . .
support an inference of actual malice” because the plaintiff must prove that the
motive for the conduct was the deliberate intent to take a wrongful action. Black,
811 F.3d at 1266. That Deputy Smith expressed anger and frustration because she
believed Doe inadequately protected her children does not establish an illicit
purpose or motive that can overcome official immunity. See Marshall v. Browning,
712 S.E.2d 71, 75 (Ga. Ct. App. 2011) (“If Browning was motivated by her
personal history and her perception that Marshall was guilty, this does not show an
intent to do wrong.”); Anderson v. Cobb, 573 S.E.2d 417, 419 (Ga. Ct. App. 2002)
(“Ill will alone is insufficient to establish actual malice . . . .”).
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Deputy Smith.
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