Delong v. Domenici, 2005 WL 418790, Ga. App.

The Georgia Court of Appeals recently found that an officer’s defense of official immunity was meritorious and that he was entitled to summary judgment in a lawsuit filed by an arrestee.  Officer Delong, a Cobb County police officer residing in Paulding County was in full uniform preparing to leave his home for work when he observed the defendant, Domenici having difficulty backing out of a driveway across the street.  Domenici who was visiting some old neighbors in that community left the first neighbor’s house and continued to drive erratically to the house of another neighbor.  Officer Delong thought that Domenici might have been intoxicated and followed him to the second home.  Officer Delong approached Domenici and inquired why he was there.  Domenici responded with slurred speech and Officer Delong noticed that his eyes were bloodshot and glossy; he was staggering and smelled of alcohol.  Officer Delong attempted to arrest Domenici, who resisted and tried to get into his car.  Domenici was extremely combative, trying to bite Officer Delong and struggling with him until Paulding County deputies arrived.  Officer Delong used minimum force to try to subdue Domenici.  It was not until Paulding County deputies arrived that pepper spray was used to subdue Domenici and place him in the patrol car.  Domenici filed suit alleging an unlawful arrest, and assault and battery during the arrest. 

At trial, Officer Delong argued that he was entitled to official immunity because as a county employee he performed a discretionary act within the scope of his duties without malice.  The Court of Appeals, citing Gilbert v. Richardson, 264 Ga. 744, 752, (1994), said,

“The doctrine of official immunity…provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are willful, wanton, or outside the scope of his authority.” 

The Court further noted that although Officer Delong was not in Cobb County nor on-duty, law enforcement officers do have a full time duty to maintain the peace.  The Court acknowledged that under Georgia law, a law enforcement officer may make a warrantless arrest for crimes committed in the officer’s presence.  The Court concluded that Officer Delong performed a discretionary act in the lawful performance of his duties.  However, the doctrine of official immunity has two prongs.  Not only did the court have to determine whether or not Officer Delong performed within the scope of his duties, it also had to determine whether or not the acts of discretion were willfully and wantonly committed.  The Court, quoting an amendment to the Georgia Constitution, said, “State officers and employees may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.”  In determining whether or not Officer Delong acted with malice, the Court said that the action required a deliberate intention to do wrong.  Along with that factor, the court examined whether Officer Delong’s actions were legally unjustifiable.  Examining the totality of the circumstances surrounding the arrest, the Court reasoned that the arrest of Domenici was legally justifiable.