Off-Duty Police Officer Immune from Excessive Force Claim


By: Brian Dempsey

In a recent opinion, the Georgia Court of Appeals granted official immunity to an off-duty police officer, Jose Vidal, who was providing security at an IHOP restaurant when he arrested a patron and allegedly used excessive force. 

These events occurred during the early morning hours, after plaintiff Ashley Leavell and some friends had drinks at a bar.   After being seated, Leavell noticed Officer Vidal approach a nearby booth and begin to speak to a group of young women seated there. Leavell began to video the scene with her cell phone because she believed that Vidal was acting too aggressively. Officer Vidal instructed the women in the booth, and all those around him, to stop touching him.

After another officer arrived and appeared to be engaged in stopping Vidal from his interactions with the women, Leavell admitted that she grabbed Vidal’s shoulder “to get his attention.” At this point, Officer Vidal slapped Leavell in the face. Video footage of the incident revealed that Leavell then violently swung at the officer several times before another officer grabbed her arm.

As the other officer was holding Leavell’s arm, Officer Vidal punched Leavell on the side of the head. Officer Vidal then threw Leavell to the floor, dragged her to the front entrance, and handcuffed her.

Leavell sued Officer Vidal for battery, negligence, and excessive force. Although Vidal was off duty, it was undisputed that he was engaged in a discretionary law enforcement function when he arrested Leavell.  As such, Vidal was entitled to claim the defense of official immunity

Noting that the doctrine of official immunity requires a plaintiff to prove that an officer acted with actual malice or an actual intent to injure, the court emphasized that a plaintiff must show more than the officer’s ill will towards her to meet that burden. Rather, the actual malice standard requires a showing that an officer “acted with the deliberate intent to commit a wrongful act or with the deliberate intent to harm.” Georgia courts have consistently distinguished actual malice from “implied malice,” which is defined as “conduct exhibiting a reckless disregard for human life.” The court reminded litigants that “evidence demonstrating frustration, irritation, and possibly even anger is not sufficient to penetrate official immunity, nor is proof of ill will, unless the ill will is combined with the intent to do something wrongful or illegal.”

While concluding that the officer’s actions did not rise to the level of “actual malice,” the court disapproved of the officer’s actions, stating that “we do not condone the officer’s actions in this case.”  This opinion underscores the reality that Georgia courts will adhere to the doctrine of official immunity — even when a court disagrees with an officer’s actions. 

The case is:  Vidal v. Leavell, 333 Ga. App. 159, 775 S.E.2d 633, 634-37 (2015).