                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 19, 2015




In the Court of Appeals of Georgia

 A15A1398. ROBINSON v. METRO ATLANTA RAPID TRANSIT
     AUTHORITY et al.

      BARNES, Presiding Judge.

      Alex Robinson appeals from the trial court’s order granting summary judgment

to the Metropolitan Atlanta Rapid Transit Authority (“MARTA”), Officer Paris Swinson,

Officer V. Samuel, and Officer J. Boggs. (hereinafter, collectively “MARTA.”) Robinson

filed the underlying complaint against MARTA and the officers for personal injury

caused by the officers alleged use of excessive force, MARTA’s failure to properly train

and supervise the officers, and false arrest. In granting MARTA’s motion for summary

judgment, the trial court found that the officers were entitled to qualified immunity for

all claims arising under 42 USC §1983, that MARTA was not liable for any supervisory

claims under 42 USC §1983, and that Robinson had failed to state a false arrest claim.

      On appeal, Robinson contends that the trial court erred in granting summary

judgement to MARTA because there were issues of material fact as to whether there
existed probable cause for the officers to arrest him, the trial court erred in finding that

the officers were entitled to qualified immunity because the force exhibited on Robinson

was excessive and unwarranted, and summary judgment was not properly granted on the

negligent supervision and training claim because MARTA had concealed evidence

pertaining to Robinson’s arrest. Upon our review, we affirm.

       “On appeal from the grant of summary judgment, this [C]ourt conducts a de novo

review of the evidence to determine whether there is 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.” (Citation omitted.) Donovan v. State Farm Mut.

Auto. Ins. Co., 329 Ga. App. 609, 610 (765 SE2d 755) (2014). On December 31, 2011,

Robinson, an Atlanta police officer, was off duty and celebrating New Year’s Eve near

Underground Atlanta at the Peach Drop. Robinson became uncomfortable when he

smelled burning marijuana, heard gunshots coming from nearby, and the size of the

crowd increased, and decided to leave. At approximately 11:45 p.m., as he and his

companion walked through the crowd toward the Five Point MARTA station located

near a MARTA police precinct, a man, later identified as Christopher Williams, blocked

him and told him that “no one’s getting past me if you’re not the [expletive] police.”

Robinson told him that he was a police officer, but Williams refused to let the couple


                                             2
pass. When Williams, who appeared intoxicated, turned to argue with another person,

Robinson attempted to slip past him, but William hit Robinson in the back. Robinson and

Williams exchanged words, and as Robinson walked away, Williams followed the couple

and hit Robinson harder. Robinson attempted to walk away again, but Williams grabbed

his jacket and Robinson hit him, causing Williams to fall to the ground.

       Robinson recalled that, with no warning and within “a couple of seconds,” he was

tased by Officer Samuel. Robinson eventually fell to the ground after being tased, and

continued to be tased for “three to four seconds.” When the taser was turned off, three

or four officers piled on top of Robinson, which caused his face to hit the pavement.

After Robinson was handcuffed, as he walked to the MARTA precinct approximately

20 yards away, one of the officers twisted Robinson’s wrist. Robinson was later released

and not charged with any offense. Williams was also handcuffed, arrested and later

charged with disorderly conduct. Although Robinson told officers that he was not injured

and did not require medical treatment, he later alleged that he had suffered injuries to his

front left rib cage, right wrist, bruising to his face, and a fractured right patella.

       Officer Boggs and Officer Swinson were both on the scene and involved in

Robinson’s arrest. Officer Swinson did not see the fight between Robinson and Williams,

but responded to secure the scene and help out other officers after getting the call from


                                              3
dispatch of “a 29 fight.” He also escorted Robinson to the precinct after Robinson was

arrested. From his position on a nearby wall, Officer Boggs saw Williams grab Robinson

by the throat and throw him to the ground, but he “did not know who the primary

aggressor was.” Officer Samuel did not witness how the altercation started, but

“witnessed the fight itself.”

       1. Robinson first contends that the trial court erred in granting MARTA’s motion

for summary judgment because issues of material fact exist as to whether there was

probable cause to arrest him. Robinson alleges that his due process rights were violated

under 42 USC § 1983 because he was arrested without probable cause.

       “[C]ourts must consider the issue of a government employee’s qualified immunity

from liability as the threshold issue in a suit against the officer in his personal capacity.”

(Citation and punctuation omitted.) Anderson v. Cobb, 258 Ga. App. 159, 160 (2) (573

SE2d 417) (2002).

       Qualified immunity gives government officials performing discretionary
       functions complete protection from individual claims brought pursuant to
       42 USC § 1983, if their conduct does not violate clearly established
       statutory or constitutional rights of which a reasonable person would have
       known. Whether qualified immunity protects an official from suit is a
       question of law. We review the trial court’s ruling on summary judgment



                                              4
       de novo, viewing the facts in the light most favorable to the nonmoving
       party.

(Citations and punctuation omitted.) Whitten v. Wooten, 295 Ga. App. 281, 283 (671

SE2d 317) (2008). See also Thomas v. Holt, 221 Ga. App. 345, 347-48 (1) (471 SE2d

300) (1996).

        Robinson does not dispute that the officers were performing a discretionary

function when they arrested him the night in question. He claims that there are multiple

issues of material fact as to the probable cause for the officers to arrest him.

       Probable cause exists if the facts and circumstances within the officer’s
       knowledge, of which he or she has reasonably trustworthy information,
       would cause a prudent person to believe, under the circumstances shown,
       that the suspect has committed . . . an offense. However, the appropriate
       inquiry for qualified immunity is not whether there was probable cause, but
       whether there was “arguable” probable cause to arrest. In other words, we
       must determine whether reasonable officers in the same circumstances and
       possessing the same knowledge as the Defendants could have believed that
       probable cause existed to arrest.

(Citations and punctuation omitted; emphasis omitted.) Pickens v. Hollowell, 59 F.3d

1203, 1206 (II) (A) (11th Cir. 1995).

       Whether probable cause existed for an arrest is a jury issue to the extent
       that a dispute exists as to the facts known to the officer relevant to the


                                             5
      determination of probable cause. Where the facts known to the officer are
      not disputed, probable cause is an issue of law for the court. . . . [T]he
      standard does not require that officers correctly resolve conflicting
      evidence or that their determinations of credibility, were, in retrospect,
      accurate.«»

(Citations and punctuation omitted.) Kline v. KDB. Inc., 295 Ga. App. 789, 792 (1) (673

SE2d 516) (2009).

      Pursuant to OCGA § 17-4-20 (a) (2), a law enforcement officer is authorized to

make an arrest for a criminal offense without a warrant under the following exigent

circumstances:

      if the offense is committed in such officer’s presence or within such
      officer’s immediate knowledge; if the offender is endeavoring to escape; if
      the officer has probable cause to believe that an act of family violence, as
      defined in Code Section 19-13-1, has been committed; if the officer has
      probable cause to believe that an offense involving physical abuse has been
      committed against a vulnerable adult, who shall be for the purpose of this
      subsection a person 18 years old or older who is unable to protect himself
      or herself from physical or mental abuse because of a physical or mental
      impairment; or for other cause if there is likely to be failure of justice for
      want of a judicial officer to issue a warrant.

In Georgia, a person commits simple battery when he either “(1) intentionally makes

physical contact of an insulting or provoking nature with a person of another; or (2)


                                            6
intentionally causes physical harm to the other.” OCGA § 16-5-23 (a). Given the

circumstances known to the officers at the time they observed the incident – that

Robinson was involved in a physical altercation in an extremely crowded venue that

included families with children only minutes before midnight on New Year’s Eve – the

officers had probable cause to lawfully arrest Robinson for simple battery, if not other

charges. Although Robinson maintains that he acted in self-defense and was not a willing

participant in the fight, but an unarmed victim, “arresting officers, in deciding whether

probable cause exists, are not required to sift through conflicting evidence or resolve

issues of credibility, so long as the totality of the circumstances presents a sufficient basis

for believing that an offense has been committed.” Dahl v. Holley, 312 F. 3d 1228, 1234

(11th Circ. 2002). See also Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).

       2. Robinson also asserts that the trial court erred in granting MARTA summary

judgment because the force utilized in tasing him was excessive and unwarranted. He

maintains that the officers were not entitled to qualified immunity because he was not

acting in a violent or hostile manner before he was tased and physically attacked by the

officers.

       The threshold inquiry is whether, construing the facts in favor of
       [Robinson], the record shows that [the officers’] actions constituted
       excessive force in violation of the Fourth Amendment. A claim that an

                                              7
       officer used excessive force during an arrest is properly analyzed under the
       Fourth Amendment’s objective reasonableness standard.

(Citations and punctuation omitted) Kline v. KDB. Inc., 295 Ga. App. at 794. In such a

claim, “an arresting officer is entitled to qualified immunity if the officer’s actions were

objectively reasonable – in other words, if a reasonable officer under the same

circumstances would have believed the force used was not excessive.” Whitten v.

Wooten, 295 Ga. App. at 283. See also Bell v. City of Albany, 210 Ga. App. 371, 374

(436 SE2d 87) (1993).

       [T]he test of reasonableness under the Fourth Amendment is not capable
       of precise definition or mechanical application[;] however, its proper
       application requires careful attention to the facts and circumstances of each
       particular case, including the severity of the crime at issue, whether the
       suspect poses an immediate threat to the safety of the officers or others,
       and whether he is actively resisting arrest or attempting to evade arrest by
       flight.

(Emphasis supplied.) Id. at 374-375. Moreover,

       The reasonableness of a particular use of force must be judged from the
       perspective of a reasonable officer on the scene, rather than with the 20/20
       vision of hindsight. . . . With respect to a claim of excessive force, the same
       standard of reasonableness at the moment applies: Not every push or
       shove, even if it may later seem unnecessary in the peace of a judge’s
       chambers, violates the Fourth Amendment. The calculus of reasonableness

                                             8
       must embody allowance for the fact that police officers are often forced to
       make split-second judgments -- in circumstances that are tense, uncertain,
       and rapidly evolving -- about the amount of force that is necessary in a
       particular situation.

(Citations and punctuation omitted.) Bell v. City of Albany, 210 Ga. App. at 375. “[T]he

reasonableness inquiry in an excessive force case is an objective one” and “if a

reasonable officer under the same circumstances would have acted similarly, then [the

officers are ] entitled to the shield of qualified immunity.” Id.

       In these circumstances, it would not have been clearly evident to a reasonable

police officer that the officer’s use of force was excessive or unreasonable. Given that

there was no evidence that Officer Samuel knew who instigated the fight, under the

extreme circumstances, including the time, place, and the need to exercise quick

measures to control a violent altercation that may or may not have escalated, the officers

were entitled to qualified immunity for their actions.1 Thus, the trial court did not err in

so finding in its grant of MARTA’s motion for summary judgment.

       1
         According to the MARTA Police Department’s policy, tasing is “analogous to
oleoresin capsicum (OC) spray on the use of force continuum . . . and involve[s] the
same basic justification.” OC is more commonly known as pepper spray. Per the
department’s policy, the taser should not be used on handcuffed prisoners, absent certain
overt assaultive behavior, on a suspect who does not use violence or force against an
officer or another person, in potentially flammable environments, or in an environment
where the suspect’s fall could result in death. None of those situations apply here.

                                             9
       3. Robinson’s claim that MARTA is liable under 42 USC §1983 for its negligent

training and supervision of the officers is also meritless. “In the absence of any Fourth

Amendment violation by [the officers] during the arrest, there is no basis for

[Robinson’s] claim against [MARTA] under 42 USC § 1983.” Kline v. KDB. Inc., 295

Ga. App. at 795 (3).2 See also Bontwell v. Department of Corrections, 226 Ga. App. 524,

528-529 (5) (486 SE2d 917) (1997).

       Accordingly, the trial court correctly granted summary judgment in favor of

MARTA on this claim.

       Judgment affirmed. Ray and McMillian, JJ., concur.




       2
         “There is no respondeat superior liability under § 1983; rather, a plaintiff must
point to some official policy or custom which resulted in the injury. . . . [Robinson] must
prove that [MARTA] deprived him of a constitutional right pursuant to an impermissible
or corrupt policy which is intentional and deliberate.” Carter v. Glenn, 243 Ga. App.
544, 545 (1) (533 SE2d 109) (2000).

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