King v. King

• Decision Date: 20 September 2018
• Docket Number: CIVIL ACTION NO. 5:17-CV-24 (MTT)
• Parties: Anne KING, Plaintiff, v. Corey KING, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

342 F.Supp.3d 1364

Anne KING, Plaintiff,

v.Corey KING, et al., Defendants.

CIVIL ACTION NO. 5:17-CV-24 (MTT)

United States District Court, M.D. Georgia, Macon Division.

Signed September 20, 2018

Andre T. Tennille, III, Ken Hodges Law LLC, Cynthia L. Counts, Kenneth B. Hodges, III, Atlanta, GA, for Plaintiff.

Timothy J. Buckley, III, Taylor Wayne Hensel, Buckley Christopher, P.C., Atlanta, GA, for Defendants.

ORDER

MARC T. TREADWELL, JUDGE

Anne King believed that her ex-husband, Corey King, was not doing his fair share in the care of their children. Frustrated, she vented on Facebook. Doc. 13 ¶ 14. That post led to her arrest. Ms. King alleges that her ex-husband and his friend, Trey Burgamy, were responsible for her unconstitutional arrest and thus she filed this action alleging claims pursuant to 42 U.S.C. § 1983 and Georgia law. The Defendants have moved for summary judgment. Corey King's motion is GRANTED in part and DENIED in part . Trey Burgamy's motion is DENIED .

I. BACKGROUND¹

On January 15, 2015, Anne King posted on Facebook: "That moment when everyone in your house has the flu and you ask your kid's dad to get them (not me) more Motrin

and Tylenol and he refuses." Doc. 13 ¶ 14. Her post referred to Captain Corey King, the father of Ms. King's children, her ex-husband, and an officer with the Washington County Sheriff's Department. See Docs. 29 at 11:2-7, 21:22-22:6; 33 at 8:20-9:17.

Later that morning, Captain King, feeling upset and "disrespected" over the post, contacted Washington County's magistrate court about initiating a criminal complaint against Ms. King. Docs. 33 at 15:24-16:4; 38-7. Captain King then went to the courthouse office of Washington County Sheriff's Department Investigator Trey Burgamy, his "[p]retty good friend" or "close friend," to begin the process for having Ms. King arrested. Docs. 32 at 14:2-11; 33 at 56:8-10.

As a part of that process, Captain King prepared an "application of issuance of criminal warrant." Doc. 38-7. Anyone can complete such an application, and Ralph Todd, Washington County's Chief Magistrate, testified that it was his practice to hear each one that came across his desk, regardless of who filed it. Doc. 31 at 8:5-9, 11:1-17. Under "tell what happened, in your own words (not what the police report says) and why you want this person arrested" on the warrant application, Captain King wrote "see attached report." Doc. 38-7 at 2. The attached report was an incident report prepared by Investigator Burgamy at Captain King's request. Docs. 32 at 14:12-18; 33 at 35:13-17; 38-8. Investigator Burgamy recorded that "Complainant Corey King reported that his former wife, Anne King, is harassing him via Facebook postings." Doc. 38-8 at 2. Although Investigator Burgamy had not seen Ms. King's Facebook post and did not know if it was true or false, he wrote, under "incident type" on the incident report form, "16-11-39.1 – Harassing Phone Calls."² Docs. 32 at 15:7-12, 25:5-18; 38-8 at 1. He later testified that he chose that charge because it was the only "remotely close charge" he found that could apply. Doc. 33 at 15:2-16. The same day, in conjunction with Captain King's application and Investigator Burgamy's incident report, Magistrate Todd issued Ms. King a notice that a hearing had been scheduled for January 21 to determine whether sufficient probable cause existed for her arrest. Doc. 38-9.

At the hearing, Magistrate Todd swore in Ms. King, and she testified that she made the Facebook post and explained why. Doc. 29 at 33:17-34:7. Captain King, wearing a polo shirt with an emblem of the Washington County Sheriff's Department, also attended the hearing. Id. at 38:2-6; 33 at 9-12. Investigator Burgamy was also present, although he testified in his deposition that he was asked to sit in as a bailiff "for security purposes." Doc. 32 at 18:21-24. It was at the hearing that Investigator Burgamy first saw the Facebook post. Id. at 25:5-13. Neither then nor at any other time did Investigator Burgamy make any effort to determine whether the post was false. See id. at 29:15-16 (Q: "Were any of [the Facebook posts shown at the hearing, including Ms. King's,] false?" A: "I couldn't tell you.").

After hearing Ms. King and Captain King testify, Magistrate Todd—whose legal training is limited to forty hours of training when he first became a magistrate and twelve hours annually since—told Ms. King that he "felt like the defamation of character fit the crime better than harassing phone calls." Docs. 29 at 34:8-35:3; 31 at 16:14-20. According to Investigator Burgamy, Magistrate Todd told Investigator Burgamy that "if you will take the warrant for defamation of character, I'll sign it." Doc. 32 at 15-17.

Of course, law enforcement officers do not actually "take a warrant." Rather, Magistrate Todd was clearly referring to a typical process that leads to the issuance of an arrest warrant. A law enforcement officer executes an affidavit swearing to facts that allow a judicial officer to determine whether a warrant will issue. Thus, Magistrate Todd effectively told Investigator Burgamy that if Investigator Burgamy would execute an affidavit supporting the issuance of an arrest warrant, he—Magistrate Todd—would issue the warrant.

Burgamy then executed an affidavit, swearing to the following facts:

Personally came INV. TREY BURGAMY, who on oath says that, to the best of his/her knowledge and belief, ANNE MARIE KING did in the County aforesaid, commit the offense of, TO WIT: CRIMINAL DEFAMATION (Misdemeanor) in said County, on the 15th Day of JANUARY 2015. The place of occurrence of said offense being WASHINGTON COUNTY, GEORGIA And against LAWS OF THE STATE OF GEORGIA ( O.C.G.A. 16-11-40 )

Said offense being described as SUBJECT DID, WITHOUT A PRIVILEGE TO DO SO AND WITH INTENT TO DEFAME ANOTHER, COMMUNICATE FALSE MATTER WHICH TENDS TO EXPOSE ONE WHO IS ALIVE TO HATRED, CONTEMPT, OR RIDICULE, AND WHICH TENDS TO PROVOKE A BREACH OF PEACE. SPECIFICALLY, SUBJECT DID MAKE DEROGATORY AND DEGRADING COMMENTS DIRECTED AT AND ABOUT COREY KING, FOR THE PURPOSE OF PROVOKING A BREACH OF THE PEACE.

And thus deponent makes this affidavit that a warrant may issue for his arrest.

Doc. 38-10 at 1. Under "affiant" below the above affidavit is the signature "Inv. T. Burgamy." Id. On the second page of the arrest warrant, under "Prosecutor" is written "INV. TREY BURGAMY." Id. at 2.

Ms. King then waited at the courthouse until a deputy arrested her and took her in a patrol car to be booked at the Washington County Sheriff's Department. Doc. 29 at 38:17-39:1. She was then fingerprinted, put in a holding cell, and released about five and a half hours later when her aunt signed her bond. Id. at 40:23-42:21.

"Criminal defamation" is not a crime under the laws of Georgia, and it has not been since the Georgia Supreme Court struck it down as unconstitutional in 1982. Williamson v. State , 249 Ga. 851, 851, 295 S.E.2d 305, 306 (1982). In fact, the Georgia Law Enforcement Handbook and the Official Code of Georgia that Investigator Burgamy used for his reference specifically stated that the criminal defamation statute "has been held unconstitutional in the case of Williamson versus State 1982."³ Doc. 32 at 8:14-25, 23:1-13. Indeed, when Investigator Burgamy was asked whether he "should have known" that criminal defamation had been held unconstitutional, he answered, "Yes, sir." Id. at 39:11-17. And when asked whether he was aware of "a single fact that supported" Ms. King's arrest, he answered, "No, sir." Id. at 32:1-12.

Not surprisingly, the charges against Ms. King were ultimately dismissed. Doc. 29 at 42:22-25.

On January 19, 2017, Ms. King filed suit against Captain King and Investigator Burgamy in their individual capacities. Docs. 1; 13.⁴ She alleges that the Defendants (1) violated her First Amendment right to free speech; (2) retaliated against her in violation of the First Amendment; (3) violated her Fourth Amendment right to be free from unreasonable seizures; and (4) maliciously prosecuted her, falsely arrested her, and committed "civil conspiracy," in violation of Georgia law. Doc. 13 ¶¶ 36-76. The Defendants have moved for summary judgment. Docs. 26; 27.

II. MOTION FOR SUMMARY JUDGMENT STANDARD

A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "When the nonmoving party has the burden of proof at trial, the moving party is not required to ‘support its motion with affidavits or other similar material negating the opponent's claim.’ " United States v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437 (11th Cir. 1991) (emphasis in original) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The moving party "simply may show ... that there is an absence of evidence to support the nonmoving party's case." Id. at 1438 (internal quotation marks and citation omitted). "Assuming the moving party has met its burden, the non-movant must then show a genuine dispute regarding any issue for which it will bear the burden of proof at trial." Info. Sys. & Networks Corp. v. City of Atlanta , 281 F.3d 1220, 1224-25 (11th Cir. 2002) (citing Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).

In determining whether a genuine dispute of material fact exists, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). A material fact is any fact relevant or necessary to the outcome of the suit, and a factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505.

III. FEDERAL CLAIMS

Ms. King's amended complaint alleges that the Defendants violated her First Amendment and Fourth Amendment rights. Doc. 13. Below, ...