Opinion
CIVIL ACTION NO. 1:20-cv-4739-AT
2023-09-27
Douglas LIGGION, Plaintiff, v. UNITED STATES of America, Defendant.
Samantha L. Embry, Quinton George Washington, Washington, Dreyer and Associates, Atlanta, GA, William Elliott Stiles, Jr., W.E. Stiles Law, LLC, Atlanta, GA, for Plaintiff. R. David Powell, Office of the United States Attorney, Northern District of Georgia, Atlanta, GA, for Defendant.
Samantha L. Embry, Quinton George Washington, Washington, Dreyer and Associates, Atlanta, GA, William Elliott Stiles, Jr., W.E. Stiles Law, LLC, Atlanta, GA, for Plaintiff. R. David Powell, Office of the United States Attorney, Northern District of Georgia, Atlanta, GA, for Defendant. ORDER Amy Totenberg, United States District Judge
Plaintiff Douglas Liggion, a veteran, went to the Veterans Administration Hospital in Atlanta, Georgia, seeking mental health treatment following the death of his mother. During the course of the evening, Mr. Liggion was placed on an involuntary medical hold and, as alleged, was assaulted by VA Police Officers. Plaintiff brings a claim for battery against the United States under the Federal Tort Claims Act. Now before the Court is Defendant's Motion for Summary Judgment [Docs. 73, 78-1]. Because questions of fact exist regarding the circumstances of the alleged battery, summary judgment is not warranted and the Motion is DENIED. I. Background
This statement does not represent actual findings of fact. In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the Court has provided the statement simply to place the Court's legal analysis in the context of this particular case or controversy.
Plaintiff Douglas Liggion is a veteran and served in the U.S. Marine Corps from September 9, 1987, to September 6, 1991. (Def. SOMF, Doc. 73-1 ¶ 1.) He was a boxer for the Marine Boxing Team for two and a half years during that time period. (Id.) Plaintiff also boxed professionally after his service ended in the Marines. (Id. ¶ 2.)
As a veteran, Liggion is an established patient with the Atlanta Veterans Affairs Medical Center. (Id. ¶ 3.) He has a prior medical history of major depressive disorder and traumatic brain injury ("TBI") with a reported past suicide attempt. (Id.) Since 2014, Plaintiff has received disability benefits in connection with mental health conditions, bipolar disorder, and memory loss resulting from his time boxing in the military. (Id. ¶¶ 10-11, 13.)
This litigation arises from an incident that occurred on April 3, 2018. That day, Mr. Liggion arrived at the Atlanta VA at approximately 1:41 a.m. stating that he "need[ed] a break." (Id. ¶ 14.) Upon arrival, Mr. Liggion was seen by Triage Nurse Earnestine Lowe. (Medical Records, Doc. 73-5 at ECF 3.) Triage Nurse Lowe's medical notations indicate that Mr. Liggion denied "si / hi" — meaning suicidal intent or homicidal intent — but also noted that he was displaying "uncorporative [sic] behavior/ will not ans nsg [sic] questions[.]" (Id.) As a result of this behavior, and specifically the failure to answer questions, Nurse Lowe escorted Mr. Liggion to the Emergency Department. (Id. at ECF 4; see also VA Investigation Memo, Doc. 82-14 at ECF 11.)
As the Court understands it, this indicates that Mr. Liggion was uncooperative and was not answering the nurse's questions.
Although medical notations completed by Nurse Lowe indicate that the patient "denies si / hi," other evidence indicates that Mr. Liggion would "not tell the triage nurse if he was suicidal or not." (VA Investigation Memo, Doc. 82-14 at ECF 11.)
Once in the Emergency Department, Mr. Liggion saw Social Worker Courtney Jones. (VA Investigation Memo, Doc. 82-14 at ECF 11.) Ms. Jones spent "at least 30 to 40 minutes" with Mr. Liggion. (Id.) Ms. Jones's medical chart notes indicate that Mr. Liggion:
reports needing a time out due to experiencing depression earlier today and denies knowing what triggered the change in mood. He denies SI/HI. He presents futuristic in thoughts. Triage RN reported that Veteran presented with disorganized thoughts; however, to this Clinician, Veteran appeared alert, oriented, and coherent. Psychiatrist informed of Mr. Liggion's presence in the ER for evaluation.(Medical Records, Doc. 73-5 at ECF 11.) Ms. Jones's notes also indicate that Mr. Liggion had been drinking alcohol earlier that day. (Id.) Her notes further indicate that Mr. Liggion was not displaying any aggressive behaviors. (Id.) During his initial time in the Emergency Department, Mr. Liggion also interacted with an Emergency Department Registered Nurse, Linda Huffman. (VA Investigation Memo, Doc. 82-14 at ECF 9.) In a later interview regarding this incident, Nurse Huffman indicated that, upon initially arriving in the Emergency Department, Mr. Liggion was "alert, oriented, and talkative" and "denied being suicidal or homicidal." (Id.; see also Huffman Dep., Doc. 82-8 pp. 14:21-15:1.) Because Mr. Liggion was fine at that time, Nurse Huffman went on her meal break. (VA Investigation Memo, Doc. 82-14 at ECF 9.)
In his own deposition, Mr. Liggion explained that he had just come "back from Indiana, where we laid my mother's tombstone," and that he "kind of got depressed." (D. Liggion Dep., Doc. 82 - 1 p. 9:7-11) ("Normally, I've gotten depressed before, I go to the VA and surround myself around other veterans; I realize I'm go[od] to go.").
As noted above, after assessing Mr. Liggion in the Emergency Department, Social Worker Jones found that Mr. Liggion was not suicidal. (Id. at ECF 11) ("I did not feel like he was a danger to himself."). Where a veteran has presented for mental health treatment in the Emergency Department, the social worker must consult a psychiatrist before the veteran can be cleared and the psychiatrist "has to evaluate the patient and make the final disposition." (Id.) In accordance with this procedure, Social Worker Jones contacted the psychiatrist on duty, Dr. Oluseun Ajayi, to evaluate Mr. Liggion. (Id.)
At this point, things went south. Social Worker Jones explained in a later interview her observations regarding Mr. Liggion and Dr. Ajayi's interaction:
Dr. Ajayi went to speak with Liggion. I was at the computer putting in some notes. Then the doctor walked up to me and said, he's not answering. He's refusing to talk to me. I went over and spoke with Liggion. I told Liggion he need[ed] to tell the Doctor the information he told me. The Doctor needs to hear that you are not suicidal and that you are not a threat to yourself.(Id.) However, Mr. Liggion stated that he was not going to talk to Dr. Ajayi because Dr. Ajayi had disrespected him. (Id.) In his own deposition, Mr. Liggion explained that Dr. Ajayi and he "did not see eye-to-eye" because Dr. Ajayi repeatedly asked him if he was on drugs when he was not. (D. Liggion Dep., Doc. 82-1 p. 9:13-16.) Mr. Liggion explained that this was upsetting and triggered him because his sister was murdered in a drug-related incident. (Id. p. 9:16-20.) After being asked about drugs multiple times, Mr. Liggion requested to see a different doctor. (Id.) Dr. Ajayi's chart notes indicate that Mr. Liggion was "sarcastic and aggressive" and was slurring his words and also using profanity, including cursing at Dr. Ajayi. (Medical Records, Doc. 73-5 at ECF 12.) Dr Ajayi's notes indicated that he terminated the interview "due to concerns of patient's escalating behavior and violent threats in the context of possible intoxication." (Id.)
Around this time, VA Police Officers were called to the Emergency Department in response to Mr. Liggion's behavior. (Officer Wensell Dep., Doc. 82-7 p. 69:18-24.) Four VA Police Officers ultimately responded to the call: Zachary Bradford (officer), Milton Smith (officer), Joshua Wensell (lead officer), and Aaron Anderson (on-duty supervising lieutenant officer). (Id. p. 59:19-60:2.) Officers Bradford and Smith arrived first and began talking with Mr. Liggion, and then Officer Wensell and Lt. Anderson arrived. (Id. p. 70:7-13; 75:1-7.) When Officer Wensell arrived, Officers Bradford and Smith were standing over Mr. Liggion, who was sitting in a chair. (Id. p. 75:1-24.) They were having a conversation and Mr. Liggion was complaining about his care and asking for another doctor. (Id.) At the time, Officer Wensell noted that "[n]obody's voices were really raised any more than normal to accommodate the ambient noise in the room." (Id.) After some time, another call came in requesting VA Police assistance on the Eighth Floor; Lt. Anderson sent Officer Wensell to respond to that call. (Id. p. 77:1-17.) The other three officers remained with Mr. Liggion. At this time, Mr. Liggion was stating that he did not want treatment from Dr. Ajayi, that he wanted to leave, and that he was not suicidal or homicidal. (Anderson Dep., Doc. 82-6, p. 30:10-18.) Mr. Liggion was, over this time, "going back and forth with being calm and being agitated." (Id. p. 29:25-30:1.)
Some witnesses indicate that VA Police Officers were called in response to a "Code 44." (Wensell Dep., Doc. 82-7 pp. 69:18-70-6.) However, other witnesses indicate that a Code 44 had not been called at the time the VA Police initially arrived on scene. (Anderson Dep., Doc. 82-6 p. 16:5-18); (See also VA Investigation Memo, Doc. 82-14 at ECF 11) (noting that Nurse Huffman did not hear a call for a Code 44.) A Code 44 is called in response to "violent or potentially violent individual." (VA Memo on Code 44s, Doc. 73-7.) There are specific procedures followed when a Code 44 is called, including intervention of a "Behavioral Emergency Response Team," which is to occur before any VA Police intervention. (Id. at ECF 3) ("VA Police will take control of the situation only when danger is imminent.") "A Code 44 is a true emergency and should be called only after Level 1 de-escalation techniques have been attempted and/or when violence is perceived to be imminent." (Id. at ECF 3-4.) There is no evidence that any Behavioral Emergency Response Team ever engaged with Mr. Liggion.
Officer Wensell returned to the scene after about 45 minutes and saw that the other officers were still speaking with Mr. Liggion and Dr. Ajayi had moved away. (Wensell Dep., Doc.82-7 p. 87:8-22.) Officer Wensell was confused as to why the officers were still engaging with Mr. Liggion and believed "there was no more cause for interaction with Mr. Liggion" because there was "no crime, no warrants" and he was refusing medical treatment. (Id. p. 92:9-16; 95:2-17.) However, he also noted that, at that point, Mr. Liggion was standing and in a "defensive position." (Id. p. 95:20-23.)
Officer Wensell spoke to Dr. Ajayi and explained that "I'm just going to let him [Liggion] leave against medical advice. We're out of here. We're done." (Id. p. 99:12-18.) Dr. Ajayi responded and told Officer Wensell that he was "putting [Liggion] on a 1013." (Id.)
Some evidence indicates that Mr. Liggion was placed on a 1013 much earlier. For example, the incident report filed out by Officer Bradford — the officer who is alleged to have punched Mr. Liggion — states that the initial caller requesting police assistance stated that the patient was being placed on a 1013. (Bradford Report, Doc. 73-8 at ECF 4.) However, Officer Wensell indicated that when he returned from the Eighth Floor, no 1013 had been issued. (Wensell Dep., Doc. 82-7 p.8-13.)
A VA Medical Center Memorandum addresses "1013s." This Memo involves "the disposition of patients for involuntary treatment," and explains that any patient who is determined to be "[m]entally ill, alcohol or drug dependent and appearing to present a substantial risk of imminent harm to themselves or others" who refuses voluntary inpatient treatment "will be placed on a 1013 or 2013." (VA Involuntary Treatment Memo, at ECF 2.) A 1013 is issued for "mentally ill patients" and a 2013 is issued for "substance abusing patients." (Id.) The Memo also states that "[t]he least restrictive method will be used to prevent the patient from leaving or inflicting harm upon himself/herself or others while awaiting transportation." (Id.)
A 1013 form was completed by Dr. Ajayi regarding this incident. Dr. Ajayi checked a box on the form indicating that Mr. Liggion was mentally ill and "presents a substantial risk of imminent harm to self or others as manifested by recent overt acts or recent expressed threats of violence which present a probability of physical injury to self or other persons." (Medical Records, Doc. 73-5 at ECF 39.) Dr. Ajayi's written notes indicate that "[p]atient reports feeling unsafe at home. He has a h/o [history of] MDD [Major Depressive Disorder] and is aggressive on evaluation." (Id.) On the form, Dr. Ajayi also checked boxes indicating that Mr. Liggion: "Has committed/expressed recent overt acts/threats toward others" and "Presents an imminently life endangering crisis to self because he/she is unable to care for his/her own health and safety." (Id.) Finally, Dr. Ajayi's handwritten notes on the form indicate that Mr. Liggion "is verbalizing that he's minimizing symptoms to avoid hospitalization. He is belligerent, physically aggressive, and has slurred speech." (Id.) The time listed on the 1013 is 3:23 a.m. (Id.)
However, Nurse Huffman indicated in an interview that "Dr Ajayi had told me, the social worker, and the triage nurse that Liggion was not suicidal or homicidal." (VA Investigation Memo, Doc. 82-14 at ECF 11.) Nurse Huffman did not think Liggion should have been put on a 1013. (Id.)
At some point later, after Dr. Ajayi stated that he was placing Mr. Liggion on a 1013, Mr. Liggion stood up and "was trying to leave." (Anderson Dep., Doc. 82-6 p. 33:7-8.) Mr. Liggion did not push past any of the officers and did not attempt to hit or "swing on" any officer. (Id. p. 33:9-22.) Some officers assert that Mr. Liggion, when standing, took up a "defensive posture and had closed fists." (Id. p. 42:9-10.) However, Mr. Liggion attests that he was never violent or potentially violent while at the VA Hospital and "never balled up my fists or acted like I was getting ready to fight with anyone at VAMC." (Liggion Declaration, Doc. 74-2 ¶ 8.) Officer Bradford's report states that Mr. Liggion said that "if anyone put their hands on him" that he was going to defend himself." (Bradford Report, Doc. 73-8 at ECF 5.) Mr. Liggion denies making comments that he was going to "take all of them down." (Liggion Dec., Doc. 74-2 ¶ 8.)
Ultimately, the situation escalated and the VA officers then grabbed Mr. Liggion. The officers have slightly varying descriptions of exactly what occurred. Officer Bradford stated that he commanded Mr. Liggion to sit down, and, when Mr. Liggion did not sit down, he "grabbed Liggion and the other officers grabbed Liggion." (VA Investigation Memo, Doc. 82-14 at ECF 17.) Officer Bradford further explained, "I handcuffed Liggion and I went for his center/upper torso. [Officer] Smith was on the right side of Liggion. Later, I moved to the left side and Mr. Anderson took the middle and [Officer] Wensell went for the legs." (Id.) ("I immediately handcuffed Liggion to wherever I could get cuffs on until I can get some temporary restrains on Liggion. I cuffed Liggion to the chair. I cuffed Liggion's left wrist to the chair. I grabbed my other set of cuffs and I cuffed Liggion's right wrist to the chair."). Officer Smith stated that he grabbed Mr. Liggion's right hand and "sank his elbow into Mr. Liggion's collarbone." (VA Investigation Memo, Doc. 82-14 at ECF 15.) Officer Smith also confirmed that Officer Bradford handcuffed Mr. Liggion on both sides. (Id.)
Lt. Anderson stated that Mr. Liggion was "amped" and in a "fighting stance," so he (Lt. Anderson) "indicated to my officers with a little gesture that it's time for us to take control of the situation." (VA Investigation Memo, Doc. 82-14 at ECF 13.)
In an interview after the incident, Mr. Liggion states that "all four officers surrounded him and jumped him." (Id. at ECF 19.) Specifically, he states that Officer Bradford punched him in the eye during the attack and that Bradford punched him two more times after they had already placed him in handcuffs. (Id.) He also identified Officer Smith as the officer who hit him in the back of the head. (Id. at ECF 20.) Nurse Huffman — the ED nurse who saw Mr. Liggion upon his initial arrival in the Emergency Department and then spoke with him again after returning from her meal break — made statements corroborating portions of Mr. Liggion's account. (Id. at ECF 9-10.) Nurse Huffman stated that each officer grabbed one of Mr. Liggion's limbs and noted that "I saw the officer punch patient in the left side of his face 3 times." (Id.; see also Huffman Revised Statement, Doc. 91 at ECF 20.) The Officers themselves claim that no one punched Mr. Liggion, or that they never saw anyone punch Mr. Liggion. (VA Investigation Memo, Doc. 82-14 at ECF 14, 15) (noting that Lt. Anderson and Officer Smith stated that did they not observe Mr. Liggion being hit by anyone). Officer Bradford denied punching Mr. Liggion. (Bradford Dep., Doc. 82-5 p.63:23-64:6.)
However, as noted earlier, Officer Smith acknowledged that he grabbed Mr. Liggion's right hand and "sank his elbow into Mr. Liggion's collarbone." (VA Investigation Memo, Doc. 82-14 at ECF 15.)
After he was handcuffed, medical staff administered medication via an injection to Mr. Liggion. Mr. Liggion was then placed on a gurney and was placed in vinyl restraints. (VA Investigation Memo, Doc. 82-14 at ECF 7, 10, 20.)
Based on the Court's review of the record, it is not clear exactly who administered the medication to Mr. Liggion.
At this point, Nurse Huffman noted that Mr. Liggion had "blood across his mouth and blood across his left eye." (Id.) Later that morning, another Social Worker, Anita Dixon-Thomas, visited Mr. Liggion and included in her notes that he "had a fresh cut over his right eye sustained from an altercation he had with the VA Police last night." (Medical Records, Doc. 73-5 at ECF 20.) Other nursing notes indicate "[d]iscoloration and swelling noted to left eye, redness to sclera of left eye." (Id. at ECF 8.) Notes from another doctor, Dr. Viorica Pencea, the morning after the incident also state that Liggion reported that he "was hit by police in the face several times." (Id. at ECF 26.) Dr. Pencea then discontinued the 1013 as "veteran does not meet 1013 criteria," and discharged Mr. Liggion as free to go home. (Id. at ECF 27.) A Use of Force Review was conducted by the VA Law Enforcement Training Center. This review ultimately found that the force used by the VA Police Officers involved in the incident was reasonable. (Id. at 22.)
Subsequently, after exhausting his administrative remedies under the Federal Tort Claims Act, Mr. Liggion filed this lawsuit. The sole claim remaining in this case is a claim against the United States for battery under the Federal Tort Claims Act. Defendant filed a Motion for Summary Judgment on October 3, 2022 but failed to attach the correct brief in support. (Doc. 73, 73-2.) Upon notification by the Court, Defendant corrected this error and submitted the correct brief. (Doc. 78-1.) Plaintiff submitted a renewed response (Doc. 82) and Defendant replied (Doc. 87.) The Motion is now ripe for resolution.
II. Legal Standard for Summary Judgment
Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." FED. R. CIV. P. 56(c). The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting the Advisory Committee's note to FED. R. CIV. P. 56). "[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record before the court] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to establish, by going beyond the pleadings, that there is indeed a genuine issue as to the material facts its case. Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1583 n.16 (11th Cir. 1991). A dispute of material fact "is 'genuine' . . . [only] if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). The Court must avoid weighing conflicting evidence. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, the non-moving party's response to the motion for summary judgment must consist of more than conclusory allegations, and a mere "scintilla" of evidence will not suffice. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); But where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989).
The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505.
III. Analysis
A. The Government's Waiver of Sovereign Immunity Under the FTCA
The sole claim remaining in this case is for battery under the Federal Tort Claims Act ("FTCA"). The Court, as always, begins with the statute. Through the FTCA, the United States has waived sovereign immunity for certain injuries
caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). "This paragraph is a general waiver of sovereign immunity, but some of the waiver is taken back in the 'Exceptions' section of the FTCA." Nguyen v. United States, 556 F.3d 1244, 1250 (11th Cir. 2009) (citing 28 U.S.C. § 2680).
Understanding the interaction of two particular exceptions provides an important framework for the current dispute. The first relevant exception is the "discretionary function" exception, as outlined in section 2680(a) of the statute. This section provides that the waiver of sovereign immunity, as outlined in 28 U.S.C. § 1346(b), "shall not apply to":
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680 (a). This paragraph therefore "generally shields the government from tort liability based on the acts or omissions of federal agencies or employees when they are exercising or performing a discretionary function." Nguyen, 556 F.3d at 1250. However, under Eleventh Circuit precedent, this "discretionary function" exception may not always apply — even where discretionary functions may be at issue — in light of a different exception and the proviso included therein, as discussed below.
In determining whether conduct is discretionary, courts consider (1) whether the conduct involves an element of judgment or choice and (2) whether the judgment or choice is grounded in considerations of public policy. See Nguyen, 556 F.3d at 1250 n.2.
This second relevant exception is the "intentional torts" exception, laid out in 28 U.S.C. § 2680(h), which includes an important "proviso" that was added to the statute in 1974. Under subsection (h), the Government's general waiver of sovereign immunity "shall not apply" to certain intentional torts, including:
The Eleventh Circuit outlined the Congressional basis for this addition at length in Nguyen v. United States, 556 F.3d 1244, 1251-55 (11th Cir. 2009) (detailing the facts of two raids by federal agents in Collinsville, Illinois and stating that "Congress added the proviso to § 2680(h) to ensure that future victims of these kinds of torts inflicted by federal law enforcement officers or agents would have a damages remedy against the United States.").
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights[.]28 U.S.C. § 2680(h). However, this language is directly followed by an important proviso, which courts have deemed the "law enforcement proviso," which states:
Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) [the waiver provision] of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault,
battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.28 U.S.C. § 2680(h).
So, while the Government's waiver of sovereign immunity does not apply to the listed intentional torts generally, it does apply where such intentional torts are committed by federal "investigative or law enforcement officers." Id.; see also Millbrook v. United States, 569 U.S. 50, 54-55, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013) ("[O]n its face, the law enforcement proviso applies where a claim both arises out of one of the proviso's six intentional torts, and is related to the 'acts or omissions' of an 'investigative or law enforcement officer.' "); Nguyen, 556 F.3d at 1252 ("The straightforward meaning of subsection (h) as it now reads is that the United States has expressly waived its sovereign immunity for the claims listed in the proviso.").
Courts have grappled with the tension between the discretionary functions exception provided in § 2680(a) — which indicates that the United States has not waived sovereign immunity for discretionary acts of employees — and the law enforcement proviso, outlined in § 2680(h) — which indicates that the United States has waived sovereign immunity for certain intentional torts committed by law enforcement officers.
In addressing this tension, the Eleventh Circuit has provided clear direction. In Nguyen, the Eleventh Circuit held that, where a claim implicates both the discretionary function exception and the law enforcement proviso, the law enforcement proviso's waiver of sovereign immunity prevails. 556 F.3d at 1257 ("[I]f a claim is one of those listed in the proviso to subsection (h), there is no need to determine if the facts giving rise to it involve a discretionary function; sovereign immunity is waived in any event."). In so holding, the Eleventh Circuit rejected the logic of at least five other circuits which have held that the intentional torts outlined in the law enforcement proviso "are barred if they are based on the performance of discretionary functions within the meaning of § 2680(a)." Id. at 1257 (citing authority from the Fourth, Ninth, Third, Second, and D.C. Circuits). Thus, in this Circuit, binding precedent dictates that, where the law enforcement proviso applies, the discretionary functions exception does not.
See also Linder v. United States, 937 F.3d 1087, 1089 (7th Cir. 2019).
Here, the alleged battery at issue was committed by Veterans Administration Police Officers. It is undisputed that the VA Police Officers had authority to make arrests and are "investigative or law enforcement officers" within the meaning of the FTCA. See Celestine v. United States, 841 F.2d 851, 852 (8th Cir. 1988) (holding that VA officers are "investigative or law enforcement officers" within the meaning of § 2860(h)). Therefore, neither the discretionary exception nor the intentional torts exception applies.
Having determined that no statutory exceptions to the FTCA apply, the Court ends up back where it started — with the Government's waiver of sovereign immunity under § 1346(b) of the FTCA. To refresh, this section provides that the United States has waived sovereign immunity for injuries "caused by the . . . wrongful act[s]" of the employee officers "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with" Georgia law. See 28 U.S.C. § 1346(b)(1) (emphasis added).
The United States Supreme Court has explained that courts should "interpret these words to mean what they say, namely, that the United States waives sovereign immunity 'under circumstances' where local law would make a 'private person' liable in tort." United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (emphasis in original). Thus, when assessing FTCA claims, courts should determine whether, under "like circumstances," a private person would be liable, not whether a state or municipal entity would be liable. Id. at 45-46, 126 S.Ct. 510 (citing Indian Towing Co. v. U.S., 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier Inc. v. U.S., 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957)). Courts should adhere to this "private person" standard, even when "uniquely governmental functions are at issue." Olson, 546 U.S. at 43, 126 S.Ct. 510.
Here, Mr. Liggion asserts a claim for battery. Under Georgia law, the common law claim of battery has been codified at O.C.G.A. § 51-1-13. This section provides that
physical injury done to another shall give a right of action to the injured party, whatever may be the intention of the person causing the injury, unless he is justified under some rule of law.O.C.G.A. § 51-1-13 (emphasis added). Applying the facts of this case, viewed in the light most favorable to Plaintiff, Plaintiff was physically injured by the VA Police Officers, in particular by Officer Bradford who punched Plaintiff multiple times. Accordingly, a jury could determine that Plaintiff suffered a battery unless the VA Officers were justified to use such force under some rule of law.
Here, the Government raises two separate bases for legal justification: (1) official immunity provided to public employees under Georgia law and (2) O.C.G.A. § 37-3-41, a Georgia statute involving the involuntary treatment of individuals who have been determined to be suffering from mental illness. But, before determining whether the VA Officers' actions were legally justified under these two cited bases, the Court must first determine the appropriate "private person" analogy by which to measure the VA Officers' actions under state law. Olson, 546 U.S. at 46-48, 126 S.Ct. 510.
B. The Appropriate Private Person Analog
As outlined above, the Supreme Court has repeatedly and clearly emphasized that, for purposes of the liability of the United States under the FTCA, courts should assess whether a private entity would be liable for similar conduct. See Olson, 546 U.S. at 44, 46, 126 S.Ct. 510 (directing courts to adhere to private person standard, "even when uniquely governmental functions are at issue"). Courts should look for analogous private persons "in like circumstances," in evaluating the actions of the United States and its employees. Id. at 46-48, 126 S.Ct. 510.
In keeping with this directive, the Eleventh Circuit has assessed the actions of both the United States and its employees as if they were private parties. For example, in Turner ex rel. Turner v. United States, the Eleventh Circuit addressed an FTCA medical malpractice claim arising from emergency medical treatment provided at a military hospital in Florida. 514 F.3d 1194, 1196 (11th Cir. 2008). There, the court explained that, whether the United States was liable for the plaintiff's injuries "depends on whether a similarly situated private hospital would be liable for those injuries under Florida law," and further noted that the "most analogous private individual to an armed services doctor is a licensed physician practicing family medicine in the State of Florida." Id. at 1203, 1205 (internal citation and quotation omitted).
Relying on Turner as well as other authority, a Florida district court more recently rejected the Government's request to invoke defenses afforded to public officials in a case involving negligence claims brought based on the actions of the FBI and operators of its Public Access Line for alleged failures to appropriately respond to tips provided before a school shooting. See In re Marjory Stoneman Douglas High School Shooting FTCA Litig., 482 F. Supp. 3d 1273, 1284-88 (S.D. Fla. 2020). In particular, the district court found that the Government's reliance on the "public duty doctrine" and arguments regarding duties owed by state law enforcement officers were inapplicable under the governing legal standard, which requires courts to look to private person analogs. Id. at 1286-87 ("the appropriate inquiry under the FTCA is not whether state law would hold a police officer liable under the facts presented. Rather, the question is whether state law would hold a private person liable under the facts presented.") (quoting White v. United States, 2014 WL 4782855, at *25 (D.S.D. Sept. 24, 2014)).
Of course, unlike the above-cited cases, the present case does not arise in the context of a negligence claim against the United States or its employees. Instead, it arises in the context of a battery claim committed by federal police engaged in some measure of police functions. In this context of evaluating claims for assault or battery under the FTCA, courts have attempted to follow the Supreme Court's directive to look to private person analogs in applying the relevant state law. However, in doing so, courts have struggled to determine whether the actions of federal police officers should be viewed as similar to actions taken by state or local police officers — with the privileges and immunities afforded to such state employees — or rather as akin to actions committed by private citizens.
The Eleventh Circuit has not confronted this issue in a published decision. One unpublished decision, however, provides some guidance. In Williams v. United States, FBI agents were seeking to apprehend the plaintiff pursuant to a valid arrest warrant. 314 F. App'x 253, 254 (11th Cir. 2009). After surveilling the plaintiff, FBI agents in an unmarked car attempted to stop the SUV plaintiff was in and, when plaintiff attempted to flee on foot, one agent struck plaintiff with his vehicle. Id. at 255. The plaintiff, Mr. Williams, brought, inter alia, a battery claim against the United States under the FTCA. The district court held that "because the federal agents had probable cause to arrest Williams, Agent Campbell was entitled under Georgia law to use a reasonable amount of force to effectuate that arrest." Id. at 255. Yet, on review, the Eleventh Circuit adhered to its private party legal analysis prism and evaluated Agent Campbell's actions as if he were a private person, not as if he were a state or local police officer. Specifically, the Williams Court assessed Agent Campbell's actions through the lens of Georgia's citizen's arrest statute, which at the time provided that a "private person performing a lawful citizen's arrest has the right to use that force reasonably necessary to restrain the arrested individual." Id. at 259 (further explaining that a "citizen's arrest is authorized under reasonable and probable grounds of suspicion if the offense is a felony and the offender is escaping or attempting to escape" and "[a] private citizen has as much right to use 'reasonable force' to arrest a fugitive felon as does a police officer, and, while doing so, is equally under the protection of the law"). Because Agent Campbell's actions were justified as a private citizen's arrest, his use of force was deemed legally justified, and the United States could not be held liable for his actions. Id. Significantly, the Williams Court did not review the agent's actions through the lens of Georgia's official immunity for state employees. But see Gomez v. United States, 601 F. App'x 841, 851 (11th Cir. 2015) (assuming in passing that federal officer would be treated as comparable to Florida state law officer, where the issue was not raised by the pro se plaintiff and thus not directly presented to the court).
Outside of the Eleventh Circuit, courts have employed an array of different approaches when confronting whether federal police officers, and ultimately the United States, are entitled to benefit from state law immunities or privileges afforded to law enforcement officers. In the Sixth Circuit, courts have generally found that federal officers are entitled to individual governmental immunity, at least under Michigan law, and that the individual immunity afforded to state employees can be imputed to the United States. The governing Fourth Circuit authority, from 1978, does not evaluate the FTCA tort claims based on the relevant state law but instead finds that the liability of the United States under the FTCA is coterminous with the agents' individual liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Norton v. United States, 581 F.2d 390, 391-92 (4th Cir. 1978). The guiding Ninth Circuit authority is a splintered opinion in which there was no consensus reached on this issue. See Tekle v. United States, 511 F.3d 839 (9th Cir. 2007). In that case, one judge determined that, under Olson, federal officers could only rely on privileges afforded to private citizens. Another judge, in a concurrence, reasoned that federal officers should be able to rely on federal law enforcement privileges. And a third judge stated that the FTCA issue was not properly raised but, if it were, he agreed that federal officers would be entitled to rely on law enforcement privileges. Id. at 854-55, 859, 862.
For example, a district court in the Sixth Circuit held that FBI agents, who wrongfully identified the plaintiff as a fugitive and assaulted him, were entitled to governmental immunity provided to state employees under Michigan law and that the United States "retains the benefit of the same state law immunities available to the employees." King v. United States, 2017 WL 6508182, at *13 (W.D. Mich. Aug. 24, 2017), rev'd and remanded, 917 F.3d 409 (6th Cir. 2019), rev'd sub nom. Brownback v. King, 592 U.S. 209, 141 S. Ct. 740, 209 L. Ed. 2d 33 (2021), and aff'd, 49 F.4th 991 (6th Cir. 2022). Though not explicitly challenged on appeal, the portion of this decision allowing the United States, through its agents, to avail itself of Michigan state law immunities for individual government employees was reiterated and affirmed by the Sixth Circuit. See King, 917 F.3d 409, at 419. Another district court in the Sixth Circuit has similarly held that the United States can benefit from state law immunities provided to individual government employees in the context of an FTCA claim for battery committed by federal agents. See Valdez v. United States, 58 F. Supp. 3d 795, 827-29 (W.D. Mich. 2014).
The Fifth Circuit, taking a middle ground, has held that, under the FTCA, the United States may not invoke immunity defenses for the actions of federal officers but may invoke state law enforcement privileges. See Villafranca v. United States, 587 F.3d 257, 263-64 (5th Cir. 2009). In that case, the plaintiff brought a claim for assault and battery under Texas law. In defense, the United States argued that the officers' conduct was privileged under a Texas law "civil privilege defense" providing that peace officers are justified in using force "when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search . . ." Id. at 261 (citing TEX. PENAL CODE ANN. § 9.51(a)). The Fifth Circuit ultimately held that the federal agents could invoke the Texas statutory privilege but could not rely on state law immunity defenses. Id. at 263. The Villafranca Court explained this distinction between privileges and immunities as follows:
In Villafranca, the plaintiff was a patron at a hair salon when DEA agents arrived to execute a search warrant at the salon. Id. at 259. The plaintiff was on his cell phone and did not immediately comply with orders to end his call and an altercation ensued. Id. The plaintiff brought claims against the United States for assault, and also negligence, under the FTCA.
The distinction turns on the qualitative difference between an immunity and a privilege. Unlike an immunity, which affects liability but does not diminish the tort, a privilege protects the actor from a finding of tortious conduct.Id. at 263. The Villafranca Court reasoned that a finding that federal law enforcement officers could not rely on the civil defense privilege would "lead to the absurd result that all federal arrests would subject the Government to tort liability under the FTCA absent a finding that the Government's actions conformed with the state's specific law regarding 'private person' arrests." Id. at 264. Consequently, the Fifth Circuit determined that the appropriate FTCA " 'private person' analogy here is whether an individual, acting under color of state law would be personally liable for an assault in similar circumstances." Id. at 264 (emphasis added). ("Because that individual could invoke the § 9.51(a) privilege to avoid personal liability under Texas law, the Government can also invoke that privilege to avoid liability here.").
Put another way, an immunity insulates an individual from liability for public policy reasons, even when that individual has engaged in conduct that would otherwise be actionable. By contrast, a privilege recognizes that, because of the nature of their duties, some public officers may perform certain acts that might otherwise be tortious if committed by someone not having those duties.
See also, Hanson v. United States, 712 F. Supp. 2d 321, 328-29 (D.N.J. 2010) (determining that BOP officer who battered inmate could invoke New Jersey privileges for law enforcement officer but denying summary judgment where fact questions existed as to amount of force used).
Other courts evaluating FTCA claims based on intentional torts committed by federal police have simply applied the private analog of a private citizen effectuating a citizen's arrest, as the Eleventh Circuit did in Williams. In Lirzano v. United States, the Second Circuit weighed whether federal officers may be entitled to invoke privileges afforded to state law enforcement officers or whether the appropriate analog is a private person effectuating a citizen's arrest. 690 F.3d 78 (2d Cir. 2012). There, the Lirzano Court suggested that the private person analog was the appropriate analysis, but ultimately found that it need not decide as the result was the same, applying either option.
See Stroh v. United States, 2012 WL 4069354, at *7 (D. Colo. Sept. 17, 2012) (determining that the appropriate private analog for military police officers who engaged in a high-speed chase in attempts to detain a drunk driver was that of an individual making a citizen's arrest under Colorado law); Harris v. United States, 2012 WL 13326289, at *6-7 (N.D. Ala. Mar. 20, 2012) (applying Alabama's citizen's arrest statute to find that the officers' actions were justified in arresting and detaining the plaintiff).
After thorough review of these various avenues, the Court concludes that the Fifth Circuit's approach in Villafranca, which allows federal police to invoke state law privileges but not immunities, strikes the right balance. 587 F.3d at 263 ("Unlike an immunity, which affects liability but does not diminish the tort, a privilege protects the actor from a finding of tortious conduct.").
Here, the United States has expressly waived sovereign immunity for certain specific intentional torts committed by federal "investigative and law enforcement officers." See 28 U.S.C. § 2680(h). To allow the United States to avail itself of immunities afforded to individual state employees under state law would deprive the Government's immunity waiver in section (h) of its purpose and plain meaning. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 491-92, 126 S.Ct. 1252, 163 L.Ed.2d 1079, (2006) (explaining that the general rule that waivers of sovereign immunity should be strictly construed "is unhelpful in the FTCA context," where courts should be careful not to defeat the central purpose of the statute, which waives the Government's immunity from suit "in sweeping language").
Moreover, to allow the VA Officers here to rely on official immunity provided under Georgia law would be inconsistent with Supreme Court precedent in Olson, Indian Towing Co., and Rayonier Inc. In these cases, the Court explicitly held that the United States should not be afforded the immunities provided to state and local governmental entities and should instead be held liable as a private person or entity would be under state law operating under "like circumstances."
That said, as numerous courts have recognized, where claims involve federal officers acting as police, it does not necessarily make sense to treat federal police officers as strictly akin to private citizens. After all, the federal "investigative and law enforcement officers" — as defined in the FTCA's law enforcement proviso — necessarily have the power to effectuate arrests. And many lawful arrests conducted by federal agents would meet the elements for certain intentional torts, if committed by a private citizen. To hold the United States liable in tort "absent a finding that the Government's actions conformed with the state's specific law regarding 'private person' arrests" would render the United States liable for nearly every federal detention. Villafranca, 587 F.3d at 264; see also Tekle, 511 F.3d at 858 (Fisher, J., concurring) (reasoning that construing the FTCA as preserving "law enforcement privileges" would avoid an absurd result that "federal officers acting lawfully" would nonetheless render the United States liable "if they do not conform their conduct to what is required of private citizens").
As the above review of the relevant authority demonstrates, the trifecta of the FTCA's textual requirement that the United States be treated "as if a private person," the 1974 addition of the "law enforcement proviso," and Supreme Court authority interpreting these provisions has raised thorny issues in the context of FTCA claims involving intentional torts committed by federal law enforcement agents. Courts have struggled to interpret these cases in a manner that is consistent with the statute, Supreme Court precedent, and the unique obligations of law enforcement officers. Here, the Court believes that the balance struck by the Villafranca Court provides a workable framework, under the circumstances. Accordingly, the Court determines that the appropriate private person analog for the VA Officers are private individuals acting under color of state law.
C. Whether the Officers' Actions Were Justified by Official Immunity
As noted above, the Government argues that the VA Officers' actions were justified by the doctrine of official immunity. Georgia's doctrine of official immunity for state and local employees is outlined in the Georgia Constitution. The relevant section states:
Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and 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. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies 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. The provisions of this subparagraph shall not be waived.Ga. Const. art. I, § 2, para. IX (emphasis added). Thus, under the Georgia Constitution, state and local employees are "protected from suits against them in their individual capacities for discretionary acts performed within the scope of their public duties, as long as those discretionary acts were performed 'without malice.' " Hackett v. Fulton County School Dist., 238 F. Supp. 2d 1330, 1368 (N.D. Ga. 2002) (internal citation omitted). No official immunity is provided, however, for "ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or intent to injure." Id. (internal citations omitted).
As demonstrated by the relevant constitutional text, only an "officer or employee of the state or its departments or agencies" may rely on official immunity. As reasoned above, the appropriate analogue for the VA Officers in this case are private persons acting under color of state law, not state employees. As such, the VA Officers are not entitled to benefit from state law official immunity and such immunity cannot be imputed to the United States.
Moreover, as discussed above, courts have recognized important differences between privileges and immunities. As stated by the Villafranca Court, an immunity "insulates an individual from liability . . . even when that individual has engaged in conduct that would otherwise be actionable," whereas a "privilege recognizes that, because of the nature of their duties, some public officers may perform certain acts that might otherwise be tortious if committed by someone not having those duties." Id. at 263. Other courts have similarly explained that a privilege acknowledges the reasonableness of the act and thus "defeats the existence of the tort," while an immunity "does not deny the tort but the liability." Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1371 (9th Cir. 1987) (citing Restatement (Second) of Torts § 10 (1977); Waldon v. Covington, 415 A.2d 1070, 1077 n.23 (D.C. 1980); Restatement (Second) of Torts ch. 45A intro. note).
Georgia law instructs that a battery is committed when physical injury is done to another "unless he is justified under some rule of law." O.C.G.A. § 51-1-13 (emphasis added). Based on the distinctions outlined above, a privilege renders certain actions "justified" in a manner that "defeats the existence of the tort" in the first place. An immunity does not. Rather, an immunity insulates the tortfeasor from liability after-the-fact for the tort committed. Georgia's "official immunity" is an immunity rather than a privilege, in that it does not justify or diminish the tort committed but provides that state employees cannot be liable or cannot be sued for certain acts. For these reasons, the Court concludes that the VA Officers, and thus the United States, are not entitled to the benefit of official immunity provided to state employees under Georgia law.
D. Whether the Officers' Actions Were Justified Under O.C.G.A. § 37-3-41
Having determined that the VA Officers' actions were not justified by way of official immunity under Georgia law, the Court next assesses whether the VA Officers' actions were justified under O.C.G.A. § 37-3-41, a provision entitled "Admission to an emergency receiving facility" in the context of the "Examination, Hospitalization, and Treatment of Involuntary Patients." Under this code section, where a medical professional has executed a certificate finding that a patient requires involuntary treatment, a "peace officer" shall bring that patient into custody, as follows:
(a) Any physician within this state may execute a certificate stating that he or she has personally examined a person within the preceding 48 hours and found that, based upon observations set forth in the certificate, such person appears to be a mentally ill person requiring involuntary treatment. A physician's certificate shall expire seven days after it is executed. Any peace officer, within 72 hours after receiving such certificate, shall make diligent efforts to take into custody the person named in the certificate and to deliver him or her forthwith to the nearest available emergency receiving facility serving the county in which the patient is found, where he or she shall be received for examination.O.C.G.A. § 37-3-41 (emphasis added).
The statute does not define "peace officer." Other provisions of Georgia law, however, define a "peace officer" as someone who is "vested either expressly by law or by virtue of public employment or service with authority to enforce the criminal or traffic laws through the power of arrest and whose duties include the preservation of public order, the protection of life and property, and the prevention, detection, or investigation of crime." See United States v. Pendergrass, 995 F.3d 858, 871 (11th Cir. 2021) (citing O.C.G.A. 35-8-2(8)(A)). The Georgia Peace Officer Standards and Training Council uses the same definition for a "peace officer." See https://gapost.org/about-post/. Accordingly, this code section affords a "peace officer" the privilege to "make diligent efforts to take into custody" an individual for whom a commitment certificate has been issued. Georgia courts have emphasized that the custody order authorized by this provision is "plainly civil protective custody, not a criminal arrest." Lindsey v. State, 282 Ga.App. 644, 639 S.E.2d 584, 587 (2006) (emphasis in original) ("Under Georgia's Mental Health Code . . . taking a person into civil custody is not an arrest of a criminal offender based on probable cause.").
Under this definition, an individual does not necessarily have to be classified as a state employee to be deemed a "peace officer," as alternatively, such an individual could be vested by law or through "service" with the authority to arrest, preserve the public order, and the like. Here, the Court finds that, under the rationale provided in Section B. of this Order, the VA Officers can invoke O.C.G.A. § 37-3-41 to support that they were authorized to bring Mr. Liggion into custody.
Though O.C.G.A. § 37-3-41(a) provides that peace officers are authorized (and thus privileged) to perform the legal duty to take an individual into protective custody based on a physician's executed certificate relating to the medical or psychological needs for the individual's custody, it does not provide or grant peace officers with a privilege to use excessive force in doing so. This is particularly so where, as noted above, the custody authorized by the statute is civil protective custody, not criminal custody. Lindsey, 639 S.E.2d at 587.
The statute similarly authorizes a variety of other professionals in fields related to medicine and psychiatry to execute certificates permitting a peace officer to take an individual into custody. O.C.G.A. § 37-3-41(d).
In this case, there are a number of factual disputes related to the circumstances surrounding the VA Officers' use of force against Mr. Liggion. First, there are fact disputes as to the timing of exactly when the 1013 form was issued. The document itself notes a time of 3:23 a.m. (Medical Records, Doc. 73-5 at ECF 39.) The incident report filed out by Officer Bradford states that the initial caller from the Emergency Department requesting police assistance stated that the patient was being placed on a 1013. (Bradford Report, Doc. 73-8 at ECF 4.) However, Officer Wensell indicated that when he returned from the Eighth Floor, no 1013 had been issued. (Wensell Dep., Doc. 82-7 p.8-13.)
In order to get some rough notion of the time frame of events, the Court reviewed the VA Call Logs. The first entry relevant to this incident is from Officer Bradford at 3:26 a.m. stating that "Officer Bradford, officer Smith, and SGT Wensell conducted a patrol of the ER. all conditions is [sic] normal at this time. also the Officers was [sic] on stand by at the ER." (VA Phone Log, Doc. 73-9 at ECF 4-5.) These logs also indicate that Officer Wensell provided an entry at 3:50 a.m. stating that "SGT Wensell conducted a patrol of the lab . . ." (Id. at ECF 5.) The Court infers that Officer Wensell returned to the emergency department after his patrol of the lab. According to the VA Call Logs, this would have been after 3:50 a.m.
There are also fact disputes related to the amount of force used by the VA Officers — and particularly Officer Bradford — and the level of resistance Mr. Liggion was exhibiting. For example, there is a dispute as to whether Officer Bradford punched Mr. Liggion at all, and, if so, whether some of those punches occurred after Mr. Liggion was already handcuffed. There is also a fact dispute as to whether and when Officer Smith hit Mr. Liggion in the back of the head. There are additional disputes surrounding the question of the timing of any force used Mr. Liggion and whether it occurred when Mr. Liggion was sitting, standing, or moving, or effectively detained. Further, there are disputes about whether and when Mr. Liggion was in fact attempting to leave the VA, and, if so, what level of resistance he exhibited in doing so.
Upon review of these factual disputes, a jury could conclude that Mr. Liggion was punched multiple times, at a time when he was not attempting to leave or posed no threat or resistance. A jury could also find that he was hit in the back of the head when he was providing little to no resistance. Such conduct would not be privileged under O.C.G.A. § 37-3-41 because nothing in the statute privileges peace officers to use excessive force in taking an individual into custody or after the individual is already in custody. See also Ramirez v. State, 279 Ga. 569,619 S.E.2d 668, 674 (2005) (explaining that a "peace officer in making a lawful detention or arrest, is authorized to use only that degree of force that is reasonably necessary to accomplish the detention or arrest, and may not use excessive force"). As excessive force used against Mr. Liggion would not be privileged under O.C.G.A. § 37-3-41, this force would be viewed as if committed by a private citizen with no authorization to use force under the circumstances.
The Court again notes, however, that the detention at issue here is a civil detention, not an arrest.
Defendant has raised no other provision of state law that would allow a finding that the VA Officers' conduct here — viewing the facts in Plaintiff's favor — was privileged. Consequently, a jury could find that the Officers engaged in a battery against Mr. Liggion. Or, a jury could find that the amount of force used was both minimal and reasonable under the circumstances as well as incident to the civil detention and thus privileged. On the other hand, if excessive force was used after Defendants had in fact successfully first detained Mr. Liggion — even before he was handcuffed — the Court does not see a "privilege" basis pursuant to O.C.G.A. § 37-3-41 that could be invoked as an affirmative defense to the Plaintiff's claim. The Court, of course, does not know ultimately how the evidence may play out before the jury at this juncture. Thus, on the current record, as fact questions and disputes exist as to the circumstances and extent of the force used, as well as to whether Mr. Liggion was in fact attempting to leave or was exhibiting resistance, summary judgment is inappropriate.
IV. Conclusion
For the reasons articulated above, Defendant's Motion for Summary Judgment [Docs. 73, 78-1] is DENIED. The Court finds that mediation in this case may be productive. The Court accordingly ORDERS AND REFERS this case to the Chief Magistrate Judge for assignment to the next magistrate judge available on the wheel for mediation. The parties are DIRECTED to advise the Court of the results of the mediation within 10 days of its conclusion. If no settlement is reached, the parties are directed to submit a proposed pretrial order within 30 days of the conclusion of the mediation.
IT IS SO ORDERED this 27th day of September 2023.