Georgia Trial Lawyer Blog

On Friday, the Georgia Bureau of investigation filed a report with the Chatham County District Attorney’s Office concerning the tasing of an autistic teenager. The report’s findings may determine whether the officers involved face criminal charges for using Taser against the teen.

WTOC has the story.

Clifford Grevemberg and his brother went to order food at the Rock House Bar and Grill after attending Tybee Island’s Beach Bum Parade on May 21. Clifford, who is 18 years old, suffers from autism. Because Clifford was under 21, he was forced to wait outside the grill while his brother ordered food inside. Tybee officers say they approached Clifford while he was waiting outside and asked to see his ID. At some point during the encounter, Clifford was forced to the ground and tased. According to police reports, officers believed that Clifford was intoxicated although his family denies that claim.

Jason Buelterman, Tybee Island’s mayor, asked the GBI to investigate the matter to determine if police violated the law. Since the tasing, Police Chief James Price and a supervisor have been suspended. In addition, three officers who were involved in the altercation have resigned.

The Chatham County District Attorney’s Office must now decide whether it will bring criminal charges against the officers for using excessive force. It is currently unclear as to when the DA’s Office will announce its decision.

In response to the incident, Clifford’s family has filed suit against the city and the officers involved in the tasing.

While Tasers can be a useful and non-lethal tool for law enforcement, they are all too often used excessively, improperly or on persons with sensitive medical conditions. Victims of such police abuse can file suit against the police department and individual officers in an effort to hold the police accountable and to recoup any damages that were sustained from psychological or physical injuries.

The Dunwoody Police Department is currently investigating how a suspected shoplifter died after being detained by Dunwoody Wal-Mart employees this afternoon. The suspected shoplifter, Marty Jones, apparently succumbed after several people pinned him to the ground in order to prevent him from fleeing the store.

The Atlanta Journal Constitution has the story.

The incident occurred around lunchtime at the Wal-Mart on Ashford Dunwoody Road. According to authorities, a Wal-Mart loss prevention officer initially grabbed Mr. Jones after suspecting him of shoplifting. A shopper then apparently intervened which led to an altercation. From that point, a “pile-up” ensured in which an undisclosed number of people attempted to pin Mr. Jones to the ground.

When police arrived at 1 p.m., Mr. Jones was receiving CPR from two bystanders. He was then transported to Northside Hospital where he was pronounced dead. Authorities hope that an autopsy will shed more light on the injuries that Mr. Jones sustained.

Our personal injury attorneys have helped several clients recover significant monetary damages after they were wrongfully detained or assaulted by private security employees. It is important for customers who have been assaulted by store employees to understand that a store, such as Wal-Mart, can detain a customer it reasonably suspects of shoplifting. However, under Georgia law, a store may generally only detain a suspected shoplifter in a manner and for a length of time that is reasonable. In our experience, detention by store security that results in grave bodily injury or death is almost never reasonable, and in those cases, the injured customer or the customer’s family may be able to recover a significant amount of money from the business and its employees.

The Georgia Court of Appeals recently reversed the grant of summary judgment to an Atlanta police officer on the claims of false arrest and malicious prosecution. The court ruled that a material issue of fact existed as to whether actual malice was involved and whether there was probable cause.

In Jones v. Warner, the plaintiff, Chastity Jones, was eating at a KFC in downtown Atlanta with two friends when she decided that she wanted to visit Atlantic Station. Jones noticed a police van outside in which Officer Adriane Warner was sitting. Jones walked to the van and asked Warner for directions to Atlantic Station while Warner was on the radio. Warner failed to respond and Jones asked for directions a second time. Warner raised her finger instructing Jones to wait. Warner then stated “17th Street” and pointed to the right. Jones asked, “Where is that?” to which Warner responded, “Can’t you see I am on my radio?” While walking back to the restaurant, Jones stated, “You didn’t have to be so rude about it.”

Warner followed Jones into the KFC and told her that she needed to speak with her. Jones apologized for disturbing the radio call and turned to walk to her table. Warner then stated, “Don’t walk away from me when I’m talking to you.” At that time, Warner pulled Jones out of the KFC and held her arm to the wall. Jones again apologized. Warner then put Jones in handcuffs and asked for an ID. Jones stated she didn’t have an ID but later found it on her person. At the precinct, Warner discovered that Jones had a warrant for failure to appear. Jones was then charged with violating the Atlanta City ordinance for disorderly conduct. The ordinance, which was later changed, prohibited the interference “by acts of physical obstruction, [with] another’s pursuit of a lawful occupation.” The Solicitor eventually moved to dismiss the charges which the municipal court granted.

Jones then sued for false arrest and malicious prosecution. Warner testified that Jones stated “damn officers” as she walked back to the KFC, and that once inside she cursed in front of children which gave her probable cause to arrest. However, Warner never mentioned any cursing in her initial report and even stated in her deposition that she had no reasonable grounds for believing a crime had been committed prior to Jones’ re-entry into the KFC. Furthermore, one of Jones’ friends testified that she was calm and never cursed. Nonetheless, the trial court granted Warner’s motions for summary judgment.

False arrest arises when an arrest occurs without probable cause and when made maliciously. A lack of probable cause exists when a reasonable man would believe that the officer had no grounds for proceeding with the arrest except out of a desire to injure the arrestee. The additional element of malice may be inferred from a total lack of probable cause. Because Warner could not provide any undisputed evidence showing that the arrest for disorderly conduct was justified, the appellate court ruled that the trial court should have allowed a jury to decide the question.

Moreover, the court ruled that the claim for malicious prosecution should have also reached the jury. Whether malicious prosecution exists depends on whether the facts, as they existed at the time of instituting the prosecution, were such as to lead a person of ordinary caution to entertain a belief that the accused was guilty of the offense charged. If probable cause existed, the malicious prosecution claim will fail. Since a question of fact remains as to whether there was probable cause and a prosecution had been initiated, the appellate court held that summary judgment was improper.

Our victims’ rights attorneys have successfully represented several clients who have fallen victim to abusive police practices. In our experience, false arrest and malicious prosecution are not uncommon occurrences and many victims fail to exercise their rights under Georgia and federal laws which are designed to protect and compensate those who have been wrongfully arrested or prosecuted. While it can often be a difficult task to get such a case to the jury stage, juries can and do award significant monetary damages in such cases. It is our hope that cases like this one will allow more victims to exercise their rights and eventually prevent future abusive police practices.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

On the night of September 10, nearly 50 officers of the Atlanta Police Department conducted a warrantless raid on the Atlanta Eagle, a local bar, in which the occupants were forced to the floor, searched and had their driver’s licenses seized while police ran background checks. Twenty of the people forced to the ground filed suit in federal court on Tuesday alleging federal civil rights violations and demanding a change in police department policy.

WABE News has the story.

According to the complaint, several undercover police officers were at the bar shortly before the raid occurred. Sometime after 11:00 PM the undercover officers yelled for everyone to “hit the floor” without identifying themselves as officers. Soon thereafter Atlanta police and members of the Red Dog Unit, a drug taskforce dressed in SWAT gear, rushed into the bar without verbally identifying themselves as officers. Witnesses say officers shoved some patrons to the ground, pressed boots on their backs, used handcuffs and even kicked some patrons for no legitimate reason. The patrons were then detained and searched. Police forcefully took identifying information from the patrons in order to determine if anyone had outstanding warrants. Some patrons were forced to lie in broken glass and not allowed to move for up to two hours. Officers also allegedly kicked down a door, entered a private residence, refused to answer questions about their presence and used anti-gay slurs during the raid.

Police say they conducted the warrantless raid after observing illegal sexual conduct on prior visits. However, no patrons were arrested during the raid and only eight employees were cited for code violations. Plaintiffs argue that police violated their rights by seizing, searching and running background checks on them. Under the Fourth Amendment to the Constitution, police generally need to have a particularized reasonable suspicion or probable cause to believe that an individual is involved in criminal activity before that person can be seized and searched.

Moreover, Police Chief Richard Pennington publicly announced that it was the department’s policy to have patrons lie on the floor, searched, and have their identifications taken during raids.

Many attorneys have called such a policy a clear violation of constitutional rights. WABE legal analyst Page Pate says that the Police Chief’s statements bolster the plaintiffs’ case. Pate explained that the statements show that the city has a long history of using these tactics, and that the city will have a hard time disowning the policy when it comes time to defend itself against the plaintiffs’ lawsuit.

The complaint lists the City of Atlanta, the Atlanta Police Department and 45 officers as defendants. Plaintiffs are suing primarily under 42 U.S.C. § 1983 which allows individuals who have been deprived of constitutional rights by state actors to bring suit against them in federal court. Specifically, plaintiffs allege violations of the Fourth and Fourteenth Amendments which guarantee the right to be free of unreasonable searches and seizures as well as the First and Fourteenth Amendments which guarantee the right of free speech. The complaint further alleges the same violations under the Georgia Constitution. Plaintiffs then go on to claim false imprisonment, assault, battery and trespass.

The Lambda Legal Defense Fund, the Southern Center for Human Rights and attorney Dan Grossman represent the plaintiffs. They are not only asking for monetary damages, including punitive damages, but for a change in the police department’s policy to ensure that the city does not infringe upon constitutional rights in the future.

Our victims’ rights attorneys have also successfully represented several citizens who have fallen victim to abusive police practices. Police brutality or abuse can come in many shapes or forms including excessive use of force, physical attacks, verbal threats, intimidation or false arrest. In our experience, police departments often have unofficial or official policies which violate constitutional rights guaranteed to all citizens. A good victims’ rights attorney will expose these illegal policies by suing the responsible police department, government entity and officers under various federal and state laws designed to protect citizens from police abuse. This will help to prevent future abuses and allow the victims to recover monetary damages.

The manufacturer of the most common brand of electroshock gun, Taser International, issued a warning last week for officers to stop stunning people in the chest. The company warns that shooting someone in the chest may cause an “adverse cardiac event.”

The Atlanta Journal Constitution has the story.

The warning came in the form of a training bulletin to all law enforcement officers that carry the company’s stun guns. Instead of shooting someone in the chest, face or neck, Taser International recommends shocking a person in the back, abdomen or thigh. The warning comes after numerous law enforcement agencies have faced law suits due to the device’s ability to cause heart attacks.

Taser International’s product delivers 50,000 volts to a victim’s body for the purpose of incapacitation. Normally, such a shock will incapacitate a suspect for about five seconds without causing permanent injury. However, more than 400 people have died after being shocked with a Taser since 2001. Of those deaths, medical examiners have found that Tasers contributed to more than 30. It is unclear how many more deaths may have been caused by Tasers.

Three such deaths happened in the Gwinnett County jail after deputies shocked inmates that they say were combative. In two of those cases, the cause of death was ruled to be cardiac arrest, however, the cause of the heart attacks were not determined.

The latest warning has not deterred officers in the Atlanta area from carrying Tasers, but many police departments pledge to retrain their officers including Atlanta, Gwinnett and Clayton. Cobb County has already implemented the recommendations with its officers. Fulton County Police say they are currently reviewing the warnings, and the DeKalb County Sheriff’s Office has stated that it is aware of the recommendations.

Our personal injury attorneys have reviewed several Taser cases. While Tasers may represent a non-lethal way for officers to subdue a suspect, they are often used improperly, excessively or on persons with underlying medical conditions. As this story highlights, the resulting medical complications can lead to permanent damage and even death.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

DeKalb County, Georgia was facing a lawsuit by a homeless man who complained that a police officer kicked him out of the county and then beat him. The county settled the case last week for $165,000.

The Atlanta Journal Constitution has the story.

The incident happened five years ago when Robert Williams was found sleeping behind a restaurant on Halloween by Officer Ronald Jones. Williams asked to be arrested in order to find warmth and food, but instead, the officer drove Williams to Rockdale County and ordered him out of the car. Williams refused and a fight ensued which left both men badly beaten. Williams was then arrested on false charges. Jones initially lied to authorities by saying that Williams had placed him in the trunk of the vehicle and drove him across county lines at gunpoint. Eventually, authorities learned the truth, and Jones was charged with kidnapping, aggravated assault and violating his oath of office.

According to some former officers, the practice of transporting a drunk or bothersome vagrant across county lines was an unofficial policy for years, since it was easier than executing an arrest. When an officer makes an arrest, he has to spend time booking the offender into jail, but because driving the offender across County lines saved time, many police supervisors simply turned a blind eye to the practice. In fact, Atlanta officials have accused DeKalb and other counties of dumping vagrants into the city for years. The practice went largely undetected until the fight between Williams and Jones occurred.

Williams and his attorney, Mike Puglise, argued that kicking Williams out of DeKalb County, beating him and filing false charges against him all violated his civil rights. DeKalb decided to settle the case before it proceeded to trial. The hope is that this case will shed light on the widespread problem and cause police supervisors to crack down on the practice.

Our victims’ rights attorneys have successfully represented several clients who have been abused and brutalized by police officers. Police abuse or brutality covers a wide range of actions including physical attacks, verbal threats, excessive use of force, false arrest, sexual abuse and intimidation. As seen in this case, some unofficial police policies or customs are often kept from public view. A good victims’ rights attorney will expose these practices by filing suit against the officer and department under various state and federal laws which are designed to help the victims of police abuse. Doing so will ensure that the illegal practices stop and that the victim receives the maximum amount of monetary damages allowed by law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

The Court of Appeals of Georgia recently had to determine whether Coweta County was immune from a lawsuit in which an inmate died from an exploding tractor tire. The court ruled that the county is not immune from suit, since the county had purchased the type of insurance which waived sovereign immunity under the applicable statute.

In McDuffie v. Coweta County, the estate of prisoner Terry Rhoades sued the county for wrongful death. Rhoades had been assigned to work as an auto mechanic in the Coweta County Correctional Institute. On August 11, 2003, a tractor tire came into the shop which needed a new tube. Rhoades replaced the tube and then placed the tire back onto the tractor. During this time, Rhoades was being supervised by a prison guard; however, the guard left to use the restroom after Rhoades put the tire back onto the tractor. While the guard was away, Rhoades was getting a hose to put air into the tire. The guard then heard a loud explosion and returned to find Rhoades dead on the ground. Rhoades’ estate sued for negligent supervision by the guard.

Generally, counties are immune from suit unless the state legislature waives immunity. The version of the applicable statute in this case waives immunity if the county purchases the type of insurance defined by the statute and if the claim falls within that type of coverage. The statute states that the county must have purchased “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.” Furthermore, the policy must provide “liability coverage for the negligence of any duly authorized . . . employee in the performance of his or her official duty.”

The appellate court found that the county did have such an insurance policy. The county’s policy covered “bodily injury. . . that results from ownership, maintenance, use, loading or unloading of a covered auto.” The policy only excluded injuries which were “intentional or expected.” The court found that negligence was included within the term “accident”, and that the term “auto” falls within the statute’s requirement of “motor vehicle.” The court then determined that a tractor does fall under “motor vehicle” for purposes of the statute. As a result, the appellate court reversed the trial court’s granting of summary judgment for the county.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

The Georgia Court of Appeals recently determined that a plaintiff’s failure to originally identify the correct governmental agencies in a personal injury suit against the state does not necessarily constitute grounds for dismissing the suit. The court held that the correct standard is to determine if the plaintiffs adequately investigated their claims or if the state had suffered prejudice.

In Young v. Georgia Dept. of Natural Resources, the plaintiff, Young, was injured at the Georgia National Fairgrounds in Perry, Georgia. Young brought suit for negligence and filed ante-litem notices with the Department of Administrative Services and the Georgia National Fairground. This ante-litem notice is a necessary step in suing the state for a tort. Upon realizing these were not the correct agencies sometime later, Young filed suit against the Department of Natural Resources (DNR) and the Georgia Agricultural Exposition Authority (GAEA) which were the correct agencies.

The DNR and GAEA asked for the case to be dismissed, since Young had failed to identify the DNR and GAEA as the target agencies as required by the anti-litem statute. The trial court granted the motion by reasoning that a plaintiff must strictly comply with the anti-litem statute which waives the state’s sovereign immunity. The court further explained that the failure to include the DNR and GAEA rendered the original anti-litem notices invalid, and the plaintiff could not remedy the problem by later attaching the correct agencies.

The Court of Appeals disagreed. It held that the trial court should have conducted an inquiry into whether Young adequately investigated his claim or whether the state had suffered prejudice as a result of originally naming the wrong agencies. In doing so, the judgment was overturned and sent back to the trial court for the correct analysis to be conducted.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims, people who have been defrauded by deceptive business practices, or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.

A former Fulton County Sheriff’s Detention Officer was arrested last week for allegedly beating two inmates. One of those inmates died as a result. The former officer, Curtis Jerome Brown Jr. of Lithonia, has been charged with violating civil rights, making false statements to federal agents, and obstructing a federal investigation. The arrest stems from an FBI investigation concerning the use of excessive force at the Fulton County Jail.

The Atlanta Journal Constitution has the story.

The complaint against the officer describes two incidents in which the officer used excessive force. The first incident occurred in August 2007 in which Brown allegedly beat an inmate while handcuffed. The inmate was later found bleeding and in need of medical care. The second incident happened in March 2008. Brown is accused of beating a mentally ill inmate in his cell. When the inmate was later found, he was not breathing and was unconscious. The inmate was taken to a hospital where he was pronounced dead. The complaint also alleges that Brown concealed his role in the beatings during a federal grand jury in August 2008. The U.S. Attorney prosecuting the case has said that investigations of other incidents are being frustrated by jailers who refuse to tell the truth.">Atlanta Journal Constitution has the story.

The complaint against the officer describes two incidents in which the officer used excessive force. The first incident occurred in August 2007 in which Brown allegedly beat an inmate while handcuffed. The inmate was later found bleeding and in need of medical care.

The second incident happened in March 2008. Brown is accused of beating a mentally ill inmate in his cell. When the inmate was later found, he was not breathing and was unconscious. The inmate was taken to a hospital where he was pronounced dead. The complaint also alleges that Brown concealed his role in the beatings during a federal grand jury in August 2008.

The U.S. Attorney prosecuting the case has said that investigations of other incidents are being frustrated by jailers who refuse to tell the truth.

Excessive force in custody can also lead to a successful federal civil rights lawsuit. Perhaps that's what will happen here after the criminal case is resolved.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims and people who have been defrauded by deceptive business practices or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The Court of Appeals recently had to determine if a contractor was liable for malicious prosecution for initiating the arrest of a client who disputed a bill. The court found that the contractor was liable, since he applied for an arrest warrant and made false statements in the supporting affidavit.

In Gooch v. Tudor, Tudor contracted with Gooch to have a fence built around her property. The parties agreed that Tudor would pay $10.25 per foot of fence. After a month, the job was completed, and Gooch presented Tudor with a bill for $27,277.50. Gooch claimed Tudor stated that she did not have the money to pay. Tudor claimed Gooch refused to offer her estimates and that she was unprepared for the large bill. However, Tudor sent Gooch $10,000 as a down payment.

Gooch went to a local magistrate judge for advice upon receiving the $10,000, and as a result, Gooch sent Tudor a letter saying the magistrate would set up an appointment in his office to talk. Gooch then applied for a criminal warrant for theft by deception. Gooch also completed an affidavit with the application stating that Tudor intentionally refused to pay. The magistrate judge then set up a show-cause hearing at which time the magistrate attempted to have the parties reach an agreement. When they could not agree, the magistrate told Gooch that he would “take care of it.” Gooch executed a second affidavit at the hearing, and the magistrate issued an arrest warrant based on the affidavit. Tudor was immediately arrested and spent two nights in jail before she could post bail.

The District Attorney believed the matter was civil in nature and refused to prosecute. Gooch then brought suit for breach of contract, trover, and a notice of lis pendens against Tudor’s property. Tudor brought a counterclaim for malicious prosecution with punitive damages. A bench trial found in favor of Gooch’s breach of contract claim and Tudor’s malicious prosecution claim. The trial court awarded Gooch $27,277.50 in actual damages. Tudor was awarded $21,615 in compensatory damages and $2,500 in punitive damages.

Gooch appealed on several grounds, but the Court of Appeals affirmed the trial court’s ruling. Gooch argued that Tudor failed to show he acted with malice when he applied for an arrest warrant. However, the appellate court noted that malice can be shown when a defendant knowingly gives a false statement to the police. Gooch stated in the affidavit that Tudor refused to pay. But the evidence showed that Tudor had paid $10,000 and the rest was simply in dispute. Thus, the trial court believed that she was not refusing to pay as the affidavit stated. The court noted that it does not matter if Gooch actually wanted Tudor arrested. The question is whether his actions initiated a criminal proceeding against Tudor. Gooch visited the magistrate at least twice prior to the hearing for advice and signed two affidavits to support arrest warrants. In addition, at the hearing, Gooch said he did not want Tudor arrested, but instead, he wanted the judge to force her to give him the money owed. Thus, it was clear that he initiated the criminal proceeding to force payment. It did not matter if unintended consequences resulted.

Gooch then argued that the trial court erred because the magistrate found probable cause to arrest. However, the appellate court found that to protect Gooch from liability the magistrate has to be a neutral and disinterested third-party. The evidence showed that the magistrate was actively working on Gooch’s behalf to pressure Tudor into paying. Specifically, the magistrate advised Gooch not to cash the $10,000 check and to file an application for a criminal warrant without a police report. The magistrate also had 4 or 5 ex parte meetings with Gooch between the filing of the first affidavit and the hearing. In addition, the magistrate had helped Gooch collect payments on two prior occasions. There was also evidence which showed that the magistrate knew the case was civil in nature. The District Attorney testified that the magistrate admitted this. The magistrate also attempted to mediate the parties at the hearing which is traditionally a civil practice. The law in Georgia is clear that criminal proceedings may not be used for the collection of debt, and the court noted that the magistrate should have been aware of this fact. All of this evidence pointed to the fact that Gooch was not protected by the magistrate’s finding of probable cause, since the magistrate was not a neutral party.

The Court of Appeals also found that there was sufficient evidence to award punitive damages. The court noted that the trial judge did not err when he found Gooch’s conduct was marked by malice, fraud, wantonness, oppression, or the entire want of care which would raise the presumption of conscious indifference to consequences.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims and people who have been defrauded by deceptive business practices or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

Court of Appeals upholds malicious prosecution judgment against contractor for causing a client who disputed a bill to be arrested for theft

The Georgia Court of Appeals recently had to determine if a contractor was liable for malicious prosecution for initiating the arrest of a client who disputed a bill. The court found that the contractor was liable, since he applied for an arrest warrant and made false statements in the supporting affidavit.

In Gooch v. Tudor, Tudor contracted with Gooch to have a fence built around her property. The parties agreed that Tudor would pay $10.25 per foot of fence. After a month, the job was completed, and Gooch presented Tudor with a bill for $27,277.50. Gooch claimed Tudor stated that she did not have the money to pay. Tudor claimed Gooch refused to offer her estimates and that she was unprepared for the large bill. However, Tudor sent Gooch $10,000 as a down payment.

Gooch went to a local magistrate judge for advice upon receiving the $10,000, and as a result, Gooch sent Tudor a letter saying the magistrate would set up an appointment in his office to talk. Gooch then applied for a criminal warrant for theft by deception. Gooch also completed an affidavit with the application stating that Tudor intentionally refused to pay. The magistrate judge then set up a show-cause hearing at which time the magistrate attempted to have the parties reach an agreement. When they could not agree, the magistrate told Gooch that he would “take care of it.” Gooch executed a second affidavit at the hearing, and the magistrate issued an arrest warrant based on the affidavit. Tudor was immediately arrested and spent two nights in jail before she could post bail.

The District Attorney believed the matter was civil in nature and refused to prosecute. Gooch then brought suit for breach of contract, trover, and a notice of lis pendens against Tudor’s property. Tudor brought a counterclaim for malicious prosecution with punitive damages. A bench trial found in favor of Gooch’s breach of contract claim and Tudor’s malicious prosecution claim. The trial court awarded Gooch $27,277.50 in actual damages. Tudor was awarded $21,615 in compensatory damages and $2,500 in punitive damages.

Gooch appealed on several grounds, but the Court of Appeals affirmed the trial court’s ruling. First, Gooch argued that he was entitled to summary judgment on Tudor’s claim for malicious prosecution. However, the Court of Appeals found that it is too late to review a summary judgment once a judgment has been rendered. Gooch next argued that Tudor failed to show he acted with malice when he applied for an arrest warrant. However, the appellate court noted that malice can be shown when a defendant knowingly gives a false statement to the police. Gooch stated in the affidavit that Tudor refused to pay. But the evidence showed that Tudor had paid $10,000 and the rest was simply in dispute. Thus, the trial court believed that she was not refusing to pay as the affidavit stated. The court noted that it does not matter if Gooch actually wanted Tudor arrested. The question is whether his actions initiated a criminal proceeding against Tudor. Gooch visited the magistrate at least twice prior to the hearing for advice and signed two affidavits to support arrest warrants. In addition, at the hearing, Gooch said he did not want Tudor arrested, but instead, he wanted the judge to force her to give him the money owed. Thus, it was clear that he initiated the criminal proceeding to force payment. It did not matter if unintended consequences resulted so long as he initiated a criminal proceeding.

Gooch also argued that he was not liable since Tudor could not prove a lack of probable cause to accuse Tudor of theft. Again, the court reasoned that Gooch knew his statements in the affidavits were untrue, and that he only made the statements to pressure Tudor into paying. As a result, the trial court was correct in finding that there was no probable cause to arrest.

Gooch next argued that the trial court erred because the magistrate found probable cause. However, the appellate court found that to protect Gooch from liability the magistrate has to be a neutral and disinterested third-party. The evidence showed that the magistrate was actively working on Gooch’s behalf to pressure Tudor into paying. Specifically, the magistrate advised Gooch not to cash the $10,000 check and to file an application for a criminal warrant without a police report. The magistrate also had 4 or 5 ex parte meetings with Gooch between the filing of the first affidavit and the hearing. In addition, the magistrate had helped Gooch collect payments on two prior occasions. There was also evidence which showed that the magistrate knew the case was civil in nature. The District Attorney testified that the magistrate admitted this. The magistrate also attempted to mediate the parties at the hearing which is traditionally a civil practice. The law in Georgia is clear that criminal proceedings may not be used for the collection of debt, and the court noted that the magistrate should have been aware of this fact. All of this evidence pointed to the fact that Gooch was not protected by the magistrate’s finding of probable cause, since the magistrate was not a neutral party.

The Court of Appeals also found that there was sufficient evidence to award punitive damages. The court noted that the trial judge did not err when he found Gooch’s conduct was marked by malice, fraud, wantonness, oppression, or the entire want of care which would raise the presumption of conscious indifference to consequences.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for crime victims and people who have been defrauded by deceptive business practices or injured through the fault of others. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

In Nguyen v. US, the 11th Circuit recently held that a doctor who was unlawfully arrested could sue the federal government for false arrest, false imprisonment, and malicious prosecution under the Federal Tort Claims Act.

The facts of the case are interesting. Dr. Nguyen was born in Vietnam and served in the South Vietnamese army as a combat physician during the Vietnam War. He was imprisoned and forced to do hard labor for a year after the Communists took control. Upon his release, he attempted to escape the country multiple times which resulted in additional arrests. Eventually, he made his way to America after spending months in a refugee camp in Thailand. He attained an American medical license, and in 1984, he bought a practice in Trenton, Florida. He was the only physician for the small town of 1,500 residents. Dr. Nguyen then became a US citizen in 1986.

In 2000, Dr. Nguyen was arrested for the delivery of a controlled substance that was not prescribed in good faith. Specifically, he was said to have given Valium and Lortab to a patient that was a confidential informant without first conducting a medical exam. But two months later the charges were dropped due to insufficient evidence.

The negative publicity and harm done to Dr. Nguyen’s practice was tremendous. Many health insurance companies canceled their contracts with him causing his practice to lose a crippling amount of patients. It also took months for Dr. Nguyen to reestablish his prescription privileges. The damage done to his practice was the same as if he had been found guilty of the charges.

The record clearly revealed that no crime existed. All evidence showed that a medical examination was conducted each time the confidential informant went to Dr. Nguyen for treatment. The evidence consisted in part of videotapes which actually captured each examination. The sheriff’s deputy who made the arrest made it clear that he relied on the statements from the DEA agent in charge of the case when typing the arrest affidavit. It was based on these false statements that an arrest warrant was issued.

Dr. Nguyen brought suit against the sheriff’s deputy, the sheriff, and the United States; however, the trial judge dismissed the claim against the U.S. based on sovereign immunity. A jury returned a verdict in favor of Dr. Nguyen for over $1.8 million against the other defendants. Dr. Nguyen then appealed arguing the US should not have been dismissed, because the US had waived its sovereign immunity in the Federal Tort Claims Act (FTCA). The 11th Circuit agreed.

We did not represent Dr. Nguyen, but our civil trial lawyers have assisted other clients who were falsely arrested and prosecuted for something they did not do. It is difficult to bring malicious prosecutions and false arrest cases because the amount of proof needed to win such a case is high. But, once the case gets to a jury, the verdict can be very large. Juries seems to understand that law enforcement should be certain that someone has committed a crime before they arrest that person and put them through the humiliation of a criminal prosecution. Dr. Nguyen's jury understood that.

Another victory in a false arrest trial in federal court. The verdict was $1.3 million, but the judge may add $300,000 to that amount for the plaintiff's attorneys' fees.

The arrest that led to this case happened in Athens, Georgia. The allegation was that a UGA employee lied when obtaining an arrest warrant for a co-worker. Although the criminal charges were later dropped, the arrest ended the person's career and caused long-lasting depression.

The Athens Banner Herald has the story.

Our trial lawyers also represent people in false arrest cases. Although these cases can be difficult to win, they become much easier when you can prove that the person seeking the arrest warrant, or reporting the incident to the police, actually made an intentionally false statement to get the person arrested.

Looks like that's exactly what happened here.

The Georgia Court of Appeals recently held that a person who was wrongfully arrested for not paying a restaurant bill could sue the restaurant and its manager for false imprisonment.

In Ferrell v. Mikula, 18 year-old Racquel Ferrell and 13 year-old Kristie Ferrell were arrested for not paying their bill after dining at Ruby Tuesdays. After eating, the girls left in their vehicle and were followed by an off duty police officer working as a security guard at Ruby Tuesday. Officers in marked police cars were notified and pulled the girls over. The girls were asked if they had any drugs or weapons in the vehicle and were then placed in the back of separate patrol cars in handcuffs. The arresting officers conferred with the security guard at which time they realized they had made a mistake. The security guard explained that he had been sent after Racquel’s vehicle by the restaurant’s manager, Christian Mikula, for not paying their bill, but Racquel and Kristie Ferrell did not match the description of the two people who had not paid their bill. After obtaining Racquel’s drivers license and information, the girls were set free.

Mikula had been tending to a man and woman around the age of 30 who were unhappy with their meals. Mikula briefly left their table at which time he was informed that the two had left without paying. He then saw a car leaving the parking lot and informed the security guard that he thought the occupants of the vehicle had not paid. The security guard followed the vehicle which turned out to be Racquel Ferrell’s. At the scene of the arrests, the security guard called the manager to get a description of the people who had not paid, and it was at that point that the mistake was realized. Racquel Farrell and Kristie Ferrell’s parents sued Ruby Tuesday and Mikula for false imprisonment, intentional infliction of emotional distress, and negligent hiring and training. The trial court granted Ruby Tuesday’s motion for summary judgment on the false imprisonment and negligent hiring claims and both defendants’ claims for emotional distress.

Ruby Tuesday argued that the claim of false imprisonment should be dismissed, since there was probable cause to arrest and no malice existed. The Georgia Court of Appeals disagreed by ruling that malice is not an element of false imprisonment. Furthermore, probable cause is not a defense to false imprisonment unlike the tort of malicious arrest which involves an arrest based on a warrant. Here, the alleged crime took place outside the officer’s immediate knowledge and without a warrant. This means there must be some exigent circumstance as proscribed by Georgia law for the arrest to be legal and for summary judgment to be proper. As there were no exigent circumstances, the Ferrells had established that the detention was unlawful.

The court then moved to the question of whether Mikula had caused the unlawful detention of the Ferrells. Generally, a defendant does not have to explicitly request an arrest to be liable of false imprisonment but only has to act in a way which procures an arrest. Mikula told the security guard that the people in the vehicle leaving the parking lot had not paid their bill although he did not know who was actually in the vehicle. He also knew that the security guard would detain the vehicle’s occupants but did nothing to stop that from happening. Thus, summary judgment for the defendants on the false imprisonment claim would be improper.

While the court granted the defendants’ motions for summary judgment on the claims for negligent hiring and emotional distress, the ruling reaffirms the principle that a person who is wrongfully arrested may have a claim of false imprisonment against those who assisted officers in making the arrest.

Our personal injury lawyers have also been involved in several false arrest and malicious prosecution cases in Georgia. While these cases can be difficult to win, this decision may help us hold businesses responsible when they jump to conclusions about someone's guilt before they check all the facts.

The Eleventh Circuit Court of Appeals in Atlanta recently held that a police officer is not entitled to qualified immunity for using significant force after making an arrest in which there was no danger.

In Galvez v. Bruce, the Eleventh Circuit held that a sheriff’s deputy who allegedly used excessive force after making an arrest was not entitled to qualified immunity. The decision stems from an incident that occurred at medical doctor Adolfo Galvez’s walk-in clinic in Florida. A teenage girl had pulled into Galvez’s parking lot with an overheated car and asked to use a water spigot to fill the vehicle’s radiator. In exchange, Galvez requested the girl’s driver’s license to copy in case the car was not removed. The girl gave Galvez the license, but a dispute then broke out in which Galvez refused to return the license.

Sheriff’s deputy Henry Bruce was dispatched to the scene. Bruce demanded Galvez to hand over the license, but Galvez refused. Bruce then grabbed Galvez’s right hand in an attempt to arrest him. Galvez resisted Bruce’s advancement while trying to retrieve the license from above a printer. Bruce pushed Galvez away from the printer and grabbed the license along with confidential patient information. Galvez then grabbed the license and confidential papers and placed the license in his pants pocket. At this point, Galvez was placed under arrest.

Galvez testified that after he was arrested Bruce dragged him outside. Bruce then slammed Galvez’s chest into the edge of the clinic’s car port several times. Galvez claims that his body was pinned between Bruce and the concrete wall while the slamming occurred. Finally, Bruce retrieved the license from Galvez’s pocket. Galvez was charged with petit theft and resisting arrest which were both later dropped. Galvez sustained two broken ribs and a leaking aneurysm from the incident. As a result, Galvez sued Bruce for violating his Fourth and Fourteenth Amendment rights to be free of excessive force by state police officers.

The trial court granted Bruce’s motion for summary judgment by determining that he was entitled to qualified immunity. For qualified immunity to exist, the officer must have been acting within his discretionary authority, and his actions must not have violated a statutory or constitutional right. Finally, if there was a violation of a right, qualified immunity exists if that right was not clearly established by the law. The trial court found that the law did not provide Bruce with clear notice that his conduct was unlawful, and thus, he was entitled to qualified immunity.

However, the appeals court disagreed with the trial court’s reasoning. First, the appeals court determined that that a jury could find that Galvez’s Fourth Amendment right to be free from excessive force during arrest was violated, since the use of force could be found to be disproportionate to the amount necessary for arrest. The court reasoned that the low severity of the crimes, the lack of danger to the officer, and the low risk of flight all led to this conclusion. Second, the court found that two prior cases should have put Bruce on notice that his actions were not legal. Prior cases demonstrate that qualified immunity does not exist for officers who use significant force after an arrest has taken place in which the arrestee has been secured and poses no danger to the officer. As a result, the trial court’s summary judgment was thrown out.

Our constitutional rights attorneys have assisted people in several false arrest and excessive force cases involving law enforcement officers. Although these cases can be incredibly difficult to win, we have been successful when we can show that the officer's actions violated clearly established law. This case will likely help us protect the constitutional rights of citizens when police officers get too far out of line.