Barriers to Justice:
How Immunity Prevents Government Accountability
BY BILL ATKINS AND NATALIE WOODWARD
Since the death of George Floyd, the legal community has refocused attention on the procedural and substantive barriers to justice for victims of misconduct by government officials. All too often, government officials avoid criminal and civil accountability for even the most egregious misconduct. In civil rights litigation, summary judgment and interlocutory appeals frequently lead to dismissals, sometimes even in circumstances where an officer’s conduct is found to have violated the plaintiff’s constitutional rights.
Given the state of the law, civil rights cases are fact-intensive and require that practitioners have a thorough understanding of applicable law, especially immunity doctrines that so often serve to insulate public officials from liability.
This article introduces several common immunity doctrines that pose barriers to justice for citizens injured by governments and government officials.
GOVERNMENT IMMUNITY UNDER FEDERAL LAW
The doctrine of qualified immunity is a barrier to claims brought against a government actor for the violation of a person’s constitutional rights. In 1961, the Supreme Court first recognized that private citizens could use a federal statute from the 1800s (42 U.S.C. 1983) to sue state and local government officials for violations of constitutional rights.1 Monroe v. Pape, 365 U.S. 167, 203 (1961) offered a bridge to a meaningful remedy for individuals asserting civil rights claims, at least that was what the majority intended to do in 1961.2
Twenty-two years later, the United States Supreme Court in Harlow v. Fitzgerald invented the defense of qualified immunity.3 Rejecting common law principles that were well established when Congress enacted 42 U.S.C. § 1983, the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 4
This test is objective, even government officials with improper motives are entitled to the defense.5 So long as a defendant can prove they were acting in their discretionary capacity, they are entitled to qualified immunity unless a plaintiff establishes: (1) that the defendant violated a specific constitutional provision or statutory rule and (2) pre-existing law had given the officer fair warning that his or her conduct violated the Constitution.6 It is not enough that an officer violated a person’s constitutional rights; rather, plaintiffs must also prove that pre-existing law – a published decision from the US Supreme Court, local Circuit court, or the highest court of the State – would put every officer on notice that the conduct at issue violated the Constitution. In all but a few cases, the standard requires that the plaintiff produce a published decision with nearly identical facts. To make matters worse, appellate courts are no longer required to first determine whether an officer’s conduct violated the Constitution, meaning that the case will not “establish the law” for future cases.
If Monroe was meant to provide a bridge to a meaningful remedy, qualified immunity replaced it with a drawbridge that is rarely lowered by the courts. Since Harlow, the Supreme Court has addressed qualified immunity in over thirty cases. Plaintiffs prevailed in only two.7 And things have gotten much worse in the last 10 years. Until qualified immunity is scaled back by the courts or through legislation, we will continue to live in a country where most victims of government actors never get a chance to bring their case before a jury.
GOVERNMENT IMMUNITY UNDER GEORGIA LAW
Victims who are harmed by the act or omission of the State of Georgia, a county, city, state department or agency face a nearly insurmountable barrier to justice as the Georgia Constitution has granted sovereign immunity for any harms unless the immunity is waived by an Act of the General Assembly. Ga. Const. Art. I, Sec. II, Par. IX (e).
Cities are also entitled to sovereign immunity under common law and by statute; however, unlike counties,8 a municipality waives immunity by the purchase of insurance covering the claim.9 Thus, a municipality can be held liable under state law for torts committed by its employees by application of the doctrine of respondeat superior.10 If there is a basis for municipal liability that is independent of respondeat superior – negligent hiring, etc. – it should be pled. Respondeat superior liability is not equivalent to liability based upon an independent theory like negligent hiring and retention.11 Failing to plead an independent basis of liability can sometimes lead to a loss of insurance coverage, especially when the underlying act is egregious.12
WAIVER OF SOVEREIGN IMMUNITY
An act by the General Assembly to waive sovereign immunity must be clear and unambiguous, but “nothing requires the legislature to “use specific ‘magic words’ such as ‘sovereign immunity is hereby waived’” in order to create a specific statutory waiver.”13 Statutory language must indicate both the waiver of sovereign immunity and the extent of that waiver. Id. The Georgia Tort Claims Act (GTCA) lists the instances when sovereign immunity has been waived for claims.14
- Lawsuits involving Government Vehicles
The General Assembly passed legislation many years ago requiring that city and county governments maintain minimum levels of insurance to cover claims arising from the use of motor vehicles. Therefore, sovereign immunity is waived if the claim arises out of the negligent use of a motor vehicle.15 Claims involving injury from a motor vehicle accident involving a government owned vehicle are filed directly against the government entity, not the local government official involved in the accident.16 These cases include suits where the government vehicle was involved in the wreck, as well as police chase cases where the operation of the vehicle led to injury even without the government vehicle being damaged.
- Georgia Whistleblower Statute
The Supreme Court has concluded that the Georgia Whistleblower statute also provides a waiver of sovereign immunity even though the statute is far less explicit. An aggrieved party is entitled to collect money damages from the government in connection with a successful claim under the Georgia Whistleblower Statute. However, the Statute only allows for suits to be brought by public employees.17
Government officials, including officers and employees of the state, its departments and agencies, counties and cities have official immunity and shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. See Article I, Section II, Paragraph IX(d) of the Constitution of the State of Georgia. Therefore, the General
Assembly cannot waive or limit application of official immunity without amending the constitution.18
Official immunity protects government officials and employees for the negligent performance of discretionary acts within the scope of their authority.19 The notion is that, in the absence of official immunity, “it would be difficult to get responsible [people] to fill public office” and government employees would face “the constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced.” Id.20
“There are two ways around official immunity. Government employees may be held liable for: (1) negligent performance of, or negligent failure to perform their ministerial functions; or (2) if they act with actual malice or with actual intent to cause injury in the performance of their official functions.”21 Official immunity poses an even greater barrier to justice than qualified immunity.
MINISTERIAL DUTY CASES
One exception to official immunity is when a government official or employee has committed a ministerial act that caused harm. A ministerial act is: (1) simple, absolute, and definite; (2) arises under conditions admitted or proved to exist; and (3) requires execution of a specific duty. A discretionary act (of which immunity provides cover) entails personal deliberation and judgment, by examining the facts, reaching conclusions and deciding between alternatives.22
When an officer is equally permitted to choose to do anything or nothing at all – the officer is engaged in the performance of a discretionary function. Therefore, immunity will generally apply.
Even when an officer clearly owes a duty of care and is absolutely required to do something, unless she has been commanded by law or by the policy or directive of her employer – to do a particular thing, she still is engaged in the performance of a discretionary function.23
The inquiry of whether an act is discretionary or ministerial turns on the character of the specific act at issue. It is a fact-specific inquiry made on a case-by-case basis.
The ministerial duty exception to official immunity is exceedingly narrow. Most decisions by public employees involve a measure of discretion; they have some choice as to how they respond to a particular set of facts. But when “the shoe fits,” a public employee is left with no effective means of contesting liability. Many ministerial duty cases end up being litigated over damages.
THE FUTURE OF GOVERNMENT LITIGATION
As our society grapples with racial and social injustice, particularly with regard to police misconduct, the legal community should push to reform immunity doctrines so that persons injured by government officials have a realistic path to justice. The General Assembly could expand the Georgia Tort Claims Act or enact other legislation providing for a limited waiver of immunity akin to the statutory structure of O.C.G.A. § 36-92-1 et seq. Congress could pass legislation amending 42 U.S.C. § 1983 by, among other things, eliminating qualified immunity and providing for respondeat liability. The United States Supreme Court could revisit qualified immunity doctrine or do away with it entirely; it is, after all, a judgemade doctrine.
Immunity doctrines protecting government officials are inconsistent with the promise of our constitutional system. The people conferred power to government officials but preserved certain enumerated rights in the Bill of Rights. When government officials abuse the power the people conferred, there must be a meaningful way to hold them accountable.
ABOUT THE AUTHORS
Bill Atkins is a partner at Edmond, Lindsay & Atkins, LLP specializing in police misconduct, medical malpractice and serious personal injury matters. He is among Georgia’s most experienced civil rights attorneys and has won all of his police misconduct trials, including a $1 million false arrest verdict in a case he tried with his co-author.
Natalie Woodward is a founding partner of Shamp Speed Jordan Woodward, in Atlanta, Georgia. She has extensive experience in personal injury, product liability, medical malpractice, false arrest, and malicious prosecution. Natalie is a member of the Executive Committee for the Georgia Trial Lawyers Association, is a member the Atlanta Trial Lawyers Society, and serves on several non-profit boards.
1 42 U.S.C. § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe, 365 U.S. at 187.
2 The late Justice Scalia would describe its impact a bit differently. “Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law.” Crawford-El v. Britton, 523 U.S. 574, 611 (1998)(Scalia, dissenting).
3 Harlow v. Fitzgerald, 457 U.S. 800 (1982). See Baud, William, Is Qualified Immunity Unlawful? CA. L. Rev. Vol. 106:45, 62 (2018).
4 Harlow, 457 U.S. at 818.
6 Davis v. Williams, 451 F.3d 759 (11th Cir. 2006).
7 Hope v. Pelzer, 536 U.S. 730, 745-46 (2002) and Groh v. Ramirez, 540 U.S. 551, 563-66 (2004)
8 Kordares v. Gwinnett County, 220 Ga. App. 848 (1996)(“the doctrine of sovereign immunity applies to all state departments and agencies, including counties, regardless of the purchase of liability insurance.”)
9 O.C.G.A. § 36-33-1 et seq. extends sovereign immunity to municipalities; however, decisional law has interpreted the statute as allowing waiver up to the limits of any applicable insurance policy. See e.g. Rodriguez v. Kraus, 275 Ga. App. 118 (2005), accord Owens v. City of Greenville, 290 Ga. 557 (2012).
10 Durben v. Am. Materials, 232 Ga. App. 750 (1998); Kraus, 275 Ga. App. at 121.
11 TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 460-61(1)(b) 2003); Govea v. City of Norcross, 271 Ga. App. 36 (2004).
12 See Ga. Interlocal Risk Mgnt. Agency v. Godfrey, 1015947_Boyd.in dd 1 9/9/20 11:12 PM 273 Ga. App. 77, 83 (2005)(robbery and murder committed by police officer not covered acts under policy; respondeat superior insufficient basis to retain coverage where no independent basis for imposing municipal liability.)
13 Colon v. Fulton County, 294 Ga. 93, 95 (2013)(finding that Georgia Whistleblower Act sets forth a specific waiver of a County’s sovereign immunity and the extent of such waiver); but see Tricoli v. Watts, 336 Ga. App. 837 (2016)(finding that the RICO Act did not expressly waive sovereign immunity).
14 Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 598 (2014). Claims for injunctive relief may still be brought against government officials, in their individual capacities. Id. at 192; Toombs County v. O’Neal, 254 Ga. 390, 391 (1985); see also, Gilbert v. Richardson, 264 Ga. 744, 747 (1994); O.C.G.A. § 36-1-4.
15 O.C.G.A. § 36-92-2 (a) lists the minimum applicable waiver, while subpart (d) provides that the minimum “shall be increased” by the purchase of insurance in excess of the minimum amount.
16 O.C.G.A. § 36-92-3 provides the mechanism for bringing these claims.
17 Colon v. Fulton County, 294 Ga. at 95; O.C.G.A. 45-1-4.
18 See Cameron v. Lang, 274 Ga. 122 (2001)(extending official immunity under Paragraph IX(d) to municipal officials and employees.)
19 Schmidt v. Adams, 211 Ga. App. 156, 156 (1993.)
20 There is room for debate about whether this public policy concern is a valid one and whether it should trump the public’s concern in having government officials subject to scrutiny by ordinary people, i.e. a jury.
21 Ga. Const. Art. I, §II, ¶IX(d) (numbering added).
22 Grammens v. Dollar, 287 Ga. 618, 619 (2010)
23 Eshleman v. Key, 297 Ga. 364 (2015)(emphasis added.)