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Posted by Susan J. Levy

Plaintiff’s decedent was arrested by the Pike County Sheriff’s Department for simple battery after an episode of domestic violence. At the Pike County Jail, officials determined that plaintiff’s decedent, Brandon Gish, was suicidal. Because Pike County lacked appropriate staff and medical personnel to handle detainees with mental health problems, they decided to transfer Gish to the Clayton County Jail. On December 10, 2003, Deputy William Gilmer transported Gish to the Clayton County Jail in his marked patrol car. At the time of the transfer, Deputy Gilmer was aware that Gish was being transferred to Clayton County specifically because officials thought he might be suicidal. Deputy Gilmer handcuffed Gish behind his back, placed him in the rear of his patrol car, fastened Gish’s seatbelt and drove to the Clayton County Jail. The front and back seats of the patrol car were separated by a partition bolted into place with a sliding Plexiglas window. When the deputy opened the door to unbuckle Gish upon arrival at the Clayton County Jail, Deputy Gilmer saw that Gish had managed to maneuver his hands, while cuffed, to the front of his body and unbuckle his seatbelt himself.

Two days later, Deputy Gilmer was assigned to transport Gish from the Clayton County Jail back to Pike County Magistrate Court to face the criminal charges against him. The deputy picked up Gish, handcuffed him in front of his body and placed him in the backseat of the patrol car. During the ride to Pike County, the detainee was calm. After Gish’s appearance in Magistrate Court, Deputy Gilmer was assigned to drive him back to the Clayton County Jail. He again appeared calm and normal. When Deputy Gilmer reached the Clayton County Jail, he parked, then placed his loaded gun and his duty belt on the front passenger seat because the Clayton County Sheriff’s Office did not permit firearms inside the jail. The parties did not agree as to how long Deputy Gilmer was gone after he exited the vehicle. When the deputy returned to his patrol car and opened the rear door, he found that Gish had managed to retrieve the deputy’s gun from the front seat, placed the gun in his mouth and pulled the trigger. Gish was pronounced dead on arrival to the hospital.

The threshold issue in this case was whether Pike County and the individual law enforcement officers were protected from suit by the doctrines of sovereign and official immunity. The Court concluded that the defendants were entitled to immunity and granted summary judgment in their favor.

The doctrine of official or qualified immunity does not protect law enforcement officers from personal liability for negligence in the performance of ministerial functions, or for discretionary acts taken within the scope of their official authority with willfulness, malice, or corruption. Gish, et al. v. Thomas, et al., 2010 Ga. App. LEXIS 254 (March 17, 2010). “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.” Id. (quoting Daley v. Clark, 282 Ga. App. 235, 238 (2006)).

In this case, plaintiff argued that Deputy Gilmer committed two negligent ministerial acts when he handcuffed Gish improperly and when he left his loaded service pistol on the front seat of the vehicle. The Court disagreed. The decision hinged on the Court’s distinction between ministerial and discretionary acts:

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 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. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” Gish at *9 (quoting Golden v. Vickery, 285 Ga. App. 216, 217-218 (2007))


Because the Pike County Sheriff’s Office did not have written departmental policies or procedures governing either the handcuffing of inmates during transport or the securing of weapons in a patrol car, the Court found that the deputy was performing a discretionary act, and in the absence of any malice, granted the individual law enforcement officers’ motions for summary judgment.

The Court also affirmed the officers’ motion for summary judgment in their official capacities on the grounds that sovereign immunity barred all claims. The County’s purchase of automobile liability insurance did not result in a waiver of that immunity since the act giving rise to liability did not relate to the use of the patrol car as a vehicle. Gish at *13. Finally, the Court found that O.C.G.A. § 42-5-2, which outlines the responsibility of governmental entities to provide inmates with medical care, did not provide for a waiver of sovereign immunity for claims brought pursuant to that section against the County for failure to provide such care.

This recent Georgia Court of Appeals decision constitutes a clear victory for governmental employees in general and law enforcement officials specifically.