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Stephens v. Zimmerman

Court of Appeals of Georgia

July 14, 2015

STEPHENS et al.
v.
ZIMMERMAN

Reconsideration denied July 30, 2015.

Page 812

Sovereign immunity. Chatham State Court. Before Judge Fowler.

Judgment reversed.

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

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

RAY, Judge. Barnes, P. J., concurs. McMillian, J., concurs fully in Divisions 2 and 3 and in judgment only in Division 1.

OPINION

Page 813

Ray, Judge.

Joshua Zimmerman sued the mayor and the 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 U.S.C. § 1983. These claims arise from Zimmerman's contention that he was wrongfully arrested and prosecuted for [333 Ga.App. 587] 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 [333 Ga.App. 588] 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

Page 814

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 ...


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