Private University Campus Police Officers Not Entitled to Immunity Under Georgia Tort Claims Act


By: Wayne Melnick 

On Monday, June 16, 2014, the Georgia Supreme Court ruled that police officers working for private universities in Georgia are not entitled to immunity from suit under the Georgia Tort Claims Act (“GTCA”).  In Hartley v. Agnes Scott College et al., (Case No. S13G1152), a unanimous court reversed the decision of the Georgia Court of Appeals (which itself had reversed the trial court in a sharply divided 4-3 en banc decision).
The genesis of the case occurred when Agnes Scott College policy officers arrested Hartley on various charges.  Those charges were subsequently dropped and Hartley sued the college and officers for false arrest and other claims alleging that he would never have been arrested had a reasonable investigation been performed because Hartley was not even in the state at the time the alleged actions underlying the arrest (an assault) took place.  The trial court denied a motion to dismiss based on the GTCA finding the campus officers were not state officers or employees entitled to the immunity provided by that statutory scheme.
The Georgia Court of Appeals reversed and the case went up on certiorari to consider the following issue: “Did the Court of Appeals err in ruling that the campus police officers in this case qualify as State officials or employees within the meaning of O.C.G.A. § 51-21-22(7)?”
In reversing the Court of Appeals, Justice Nahmias, writing for a unanimous court, determined that the portions of the GTCA regarding campus police cannot be read in a vacuum.  Rather, the GTCA is a “unified scheme” which as a whole was designed to provide immunity for torts committed by state actors acting within the scope of their employment on behalf of the state while allowing for claims against the state government entity for which the state officer or employee was acting when he allegedly committed the tort.  As the Court noted, if the plaintiff does name the officer or employee individually as a defendant, the state government entity for which the state officer or employee was acting must be substituted as a party defendant.  This is perfectly consistent with the statutory immunity provided in O.C.G.A. § 36-92-3 providing immunity to local government officers or employees who commit torts involving the use of covered motor vehicles and requiring the local government entity for whom the officer or employee was working at the time be substituted as the party defendant in such a case where the officer or employee is sued individually.
The Court then determined that “[t]he statutory tort claims scheme simply cannot operate if there is no ‘state government entity for which the state officer or employee was acting’ when he committed the alleged tort to be named or substituted as the defendant, [O.C.G.A.]§ 50-21-25(b), so that there is no ‘state government entity” which can be notified of the claim, sued, served, assessed premiums by the Department and Office of Administrative Services to cover judgments.  Because the officers sued in this case were working for a private university and not the state, and there was no dispute that the Agnes Scott College did not satisfy the definition of being a “state government entity,” there was no state government entity for which the officers were performing their duties.  Consequently, the Court determined that the GTCA provided no immunity for the officers.
Most curious, though, is that the Georgia Supreme Court declined to consider whether those same officers would be entitled to official immunity as provided under Article I, Section II, Paragraph IX(d) of the Georgia Constitution (providing immunity for discretionary actions by “officers and employees of the state.”).  In noting the issue was not raised in or ruled on in the trial court on the subject motion to dismiss, ruled on by the Court of Appeals or fully briefed before the Supreme Court in this case, the court simply elected to “express no opinion on this issue, leaving for potential development and consideration as this case proceeds.”
So, while we know the GTCA provides no immunity for private campus police officers, the question of whether official immunity as provided for discretionary actions taken by state actors will provide safe harbor to those same officers will be answered another day.
If you would like a copy of the Georgia Supreme Court’s ruling, please contact the author.