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By: Ali Sabzevari
It is well-settled that when lawsuits arise under state law, a public officer can only be held personally liable for ministerial acts negligently performed or discretionary acts performed with actual malice or an intent to injure. Thus, the determination of whether a particular action or decision is ministerial or discretionary is crucial to liability.
O.C.G.A. § 16-13-49(I)(1)(E) provides that “if property is seized under this article, the district attorney may…[r]equire the sheriff…to take custody of the property and remove it to an appropriate location for disposition in accordance with law.” This statute has yet to be interpreted by any Georgia appellate court for purposes of official immunity, and no concrete determination has been made as to whether decisions regarding where to store or how to maintain and care for seized property are ministerial or discretionary.
Recently, however, a Georgia Superior Court held that O.C.G.A. § 16-13-49(I)(1)(E) only directs that the Sheriff take custody and remove seized items to an appropriate location, but that determining the appropriate location involves some degree of discretion and that the statute does not provide for instructions regarding the care of the seized property while in storage. See David Umberto Arreola-Soto v. Clayton County, et al., Civil Action File No. 2013-CV-04872-6 (Sup. Ct. Clayton Cnty., Aug. 19, 2015). Therefore, absent a Sheriff’s Office policy or standing order that establishes clear, definite and specific procedures or instructions regarding where to store and how to maintain and care for seized property, Georgia law, as it currently stands, places no ministerial duties upon a Sheriff and his deputies and they likely have complete discretion in the decisions they make.
For more information, contact A. Ali Sabzevari at 770.303.8633 or [email protected].