Stephens v. Zimmerman

• Decision Date: 14 July 2015
• Docket Number: No. A15A0297.,A15A0297.
• Citation: 333 Ga.App. 586,774 S.E.2d 811
• Parties: STEPHENS et al. v. ZIMMERMAN.
• Court: Georgia Court of Appeals

333 Ga.App. 586

774 S.E.2d 811

STEPHENS et al.

v.ZIMMERMAN.

No. A15A0297.

Court of Appeals of Georgia.

July 14, 2015.

Reconsideration Denied July 30, 2015.

Weiner, Shearouse, Weitz, Greenberg & Shawe, Malcolm Mackenzie III, C. Helen, Bacon, Anthony R. Casella, for appellants.

Duffy & Feemster, Dwight T. Feemster, for Appellee.

Opinion

RAY, Judge.

Joshua Zimmerman sued the mayor and aldermen of the City of Savannah (the “City”) and Samantha Stephens, a police officer/detective trainee with the Savannah–Chatham Metropolitan Police Department, raising State law claims of false imprisonment, false arrest, and malicious prosecution. He amended his complaint to allege a violation of 42 USC § 1983. These claims arise from Zimmerman's contention that he was wrongfully arrested and prosecuted for crimes related to an incident of vandalism to vehicles in a downtown Savannah parking garage. The trial court granted in part and denied in part the City and Stephens's motions for summary judgment as to their respective immunities. The City and Stephens appealed.¹ For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga.App. 362, 362, 739 S.E.2d 801 (2013).

In brief, the underlying basis for Zimmerman's claims is that some witnesses told police that one of several perpetrators was a black male. Zimmerman is white. He argues, inter alia, that he was wrongfully arrested and prosecuted because Stephens failed to perform an adequate investigation, ignored facts, and testified falsely. The City and Stephens counter that, under the applicable legal standard, Stephens had probable cause to arrest Zimmerman and that there is no evidence of actual malice triggering a waiver of their respective sovereign and official immunities.

Viewed most favorably to Zimmerman as the nonmoving party, the record reveals that some, but not all, of the witnesses to the crimes at issue identified the suspects as two white males, a Hispanic male, and a black male. Other witnesses only mentioned three suspects, none of whom was black. Three suspects, Michael Martin, Remijio Botello, and Seth Stratton eventually tendered guilty pleas. Martin and Stratton are white; Botello is Hispanic.

The record shows that at approximately 2:20 a.m. on June 25, 2011, a group of men damaged five vehicles and a motorcycle in a Savannah parking garage. Officer Amir Delic with the Savannah–Chatham Metropolitan Police Department completed a police report on the damage and possible suspects, and handled initial witness interviews. Stephens then began investigating the case.

Delic and Stephens both filed reports. Delic's report states that eyewitness Matthew Socienski saw four men—two white men, one Hispanic man, and one black man—damaging multiple vehicles in the garage. Socienski saw the men leave the scene in a gray Chevrolet Trailblazer with Georgia license tag number BIG 2415. Stephens did not interview Socienski.

Delic's report states that eyewitness Megan Neary, whose car was damaged, told him that she saw three men—two white men and a Hispanic man—damaging vehicles, and that they left the scene in a dark gray sport utility vehicle with the license plate BIG 2415. By contrast, Stephens's report says Neary saw four men get on a garage elevator, then she heard smashing noises. Neary went to another floor to look for her car, saw two men damaging a vehicle and a third in the driver's seat of a Trailblazer with the BIG 2415 tag. Stephens's report says Neary stated that “all three subjects who were damaging the vehicle” (emphasis supplied) then got into the Trailblazer. She described the driver as white and one passenger as Latino, but could not describe the person who got in the back seat.

Delic's report states that Christina Birchfield, the garage attendant, saw a dark sport utility vehicle leaving the garage around the time of the incident. She mentioned three men—the driver, who was white; and two passengers, one white and one Hispanic. Stephens's report indicates that Birchfield described the men as “army guys” with whom she was familiar, and that she had seen one of the suspects who later pled guilty, Martin, arguing with people in another vehicle. Stephens's report does not mention the ethnicity or the number of men Birchfield observed.

Delic's report indicates that he was then advised to contact Sean Young, who owned the motorcycle that had been damaged during the incident. Young was not an eyewitness. Young told Delic that he spoke with the parking attendant, Birchfield, and based on that discussion believed he knew the perpetrators. Young was a bouncer at a local club and said he saw the suspects most weekends. He identified them as Martin, Botello, and Stratton—the men who eventually pled guilty. He also said he saw a black man with them at the club, but did not know that man's name. Stephens's report states that Young told her the men had been in the club that night, had left together, and that “they had gotten drunk before and had done stupid stuff like that.” Young also said he had called one of the men, Martin, who denied involvement but admitted that his tag number was BIG 2415. Young described Martin as a white male with tattoo “sleeves,” Stratton as a “possibly white Latino male,” Botello as a Latino male, and the fourth suspect as “black.”

Stephens also interviewed the four suspects. Stratton denied damaging any vehicles, but acknowledged that he was out with Martin, “Ray” Botello and “Josh” Zimmerman on the night in question.

Martin told Stephens that although he was at the garage, he was intoxicated and did not remember seeing his friends damage anything. He said he was with Stratton and “Josh Zimmerman,” whom he believed lived together, and that he was also with “a Mexican kid named Ray.”

Botello told Stephens that he had been with Martin, and with “Seth” and “Josh” whose last names he did not know. He said he knew about the damage but could not remember well enough to know if he was involved. He later admitted that he and the men he was with “kinda went crazy in the garage,” that he smashed a windshield, that “Josh” and “Seth” pushed over a motorcycle and that the three of them were “running around destroying stuff,” but that Martin did not do anything. Stephens's report does not indicate that Botello said anything about the ethnicity of the men he was with.

Using social media and other resources, Stephens found and interviewed Zimmerman, who said he was not in downtown Savannah on the night in question. He said his roommate could vouch for his being at home. He denied knowing suspects Martin, Stratton, and Botello, or the victim Young, and said he had never been to the club where Young worked.

According to Stephens's report, Zimmerman later called her to say that he did know Stratton because Stratton had been in a fight with his roommate, that he'd seen Stratton the day he got a tattoo, and that Stratton was framing him because of the fight with Zimmerman's roommate. In his deposition, however, Zimmerman stated that he looked up Stratton and Martin on Facebook and recognized them from the tattoo parlor. However, he said he never told Stephens he knew Stratton from an altercation with his roommate, but rather that he told her his roommate had a prior altercation with the tattoo artist.

Stephens obtained warrants for the suspects' arrest, after consulting with her superior. Only after Zimmerman was arrested did Stephens contact Zimmerman's roommate, who confirmed his alibi.

1. The City and Stephens argue generally that the trial court should have found Zimmerman's claims barred by sovereign immunity as to the City and official immunity as to Stephens. We agree.

(a) Applicable cause of action.

The trial court granted summary judgment to Stephens and the City on Zimmerman's claim of false imprisonment, leaving, as to his State law claims, only the issues of false arrest and malicious prosecution. Our case law distinguishes between these remaining torts: “false or malicious arrest, which is detention ‘under process of law’ (OCGA § 51–7–1 ); and ... malicious prosecution, which is detention with judicial process followed by prosecution (OCGA § 51–7–40 ).” Ferrell v. Mikula, 295 Ga.App. 326, 329(2), 672 S.E.2d 7 (2008). The distinction is important because “[m]alicious prosecution and malicious arrest are mutually exclusive; if one right of action exists, the other does not.” (Citation and punctuation omitted.) Perry v. Brooks, 175 Ga.App. 77, 78(3), 332 S.E.2d 375 (1985).

Where, as here, there has been an arrest pursuant to a warrant, the remedy depends on whether the accused was prosecuted. “If after the arrest [,] the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie.” (Citation omitted; emphasis supplied.) Garner v. Heilig–Meyers Furniture Co., 240 Ga.App. 780, 781 –782(1), 525 S.E.2d 145 (1999).²

Zimmerman was arrested pursuant to a warrant. He was jailed and released about two days later after an initial video appearance before a judge. He was charged with false statements and writings and with four counts of criminal damage to property.

After a preliminary hearing on July 14, 2011, before the Chatham County Recorder's Court, the charges were dismissed. An inquiry before a “committing court” is a required element of malicious prosecution claim. OCGA § 51–7–42 ; see Renton v. Watson, 319 Ga.App. 896,...