             Case: 13-14857   Date Filed: 09/02/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14857
                           Non-Argument Calendar
                         ________________________

                        Docket No. 1:11-cv-03163-AT


TONY SPEIGHT,
FELICE CUNNINGHAM,
Individually and as Parents and
Natural Guardians of D.M.C., a Minor,

                                                       Plaintiffs - Appellees,

versus

BENJAMIN W. GRIGGS,
Corporal,

                                                       Defendant - Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                              (September 2, 2014)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.



PER CURIAM:



      In this interlocutory appeal, Defendant Corporal Benjamin W. Griggs, an

officer with the Fulton County Police Department (“FCPD”), challenges the

district court’s partial denial of his motion for summary judgment. Corporal

Griggs contends that he is entitled to official immunity under Georgia law from

Plaintiffs’ state law claims. Reversible error has been shown; we vacate the

judgment, reverse and remand the case.

      Briefly stated, this case arises from Corporal Griggs’s accidental shooting of

Plaintiffs’ teenage son, D.M.C. On the night of the shooting, D.M.C. was riding as

a passenger in a stolen vehicle driven by his friend, Darden. Darden and D.M.C.

stopped at a gas station; and an officer, having identified the vehicle as stolen,

approached the car. While the officer was distracted, D.M.C. ran away from the

scene and into a wooded area. When the officer attempted to detain Darden,

Darden resisted physically the officer’s attempts to handcuff him; a struggle

ensued. Then, Darden also ran into the wooded area.




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          Several officers responded to the scene shortly thereafter, including Corporal

Griggs. Corporal Griggs and two other officers entered the wooded area where

both Darden and D.M.C. had run. Using a search dog, the officers located D.M.C.

and ordered D.M.C. to get on the ground. Because it was dark, Corporal Griggs

illuminated the scene using the tactical light on his gun. After D.M.C. dropped

only to one knee, Corporal Griggs push-kicked D.M.C. to the ground. Corporal

Griggs says he then intended to holster his gun, kneel on D.M.C. and handcuff

him. But, as Corporal Griggs approached D.M.C., while attempting to holster his

gun and pull out handcuffs, the gun went off. The bullet struck D.M.C. in the hand

and the back of the head. D.M.C. survived, but suffered extensive injuries as a

result.

          Plaintiffs, D.M.C.’s mother and father, filed this civil action against

Corporal Griggs and Fulton County, Georgia. Plaintiffs’ amended complaint

asserted (1) a Fourth Amendment claim against Corporal Griggs for unlawful use

of excessive and deadly force; (2) a federal constitutional claim against Fulton

County for defective customs and policies and failure to train; and (3) state law

claims against Corporal Griggs for negligence and battery.

          The district court granted summary judgment in favor of Corporal Griggs

and Fulton County on Plaintiffs’ federal constitutional claims, but denied summary

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judgment to Corporal Griggs on Plaintiffs’ state law claims, concluding that a

genuine issue of material fact existed about whether Corporal Griggs was

performing a ministerial or a discretionary act when he shot D.M.C.

       We review a district court’s denial of summary judgment based on official

immunity de novo. Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012). Because

official immunity entitles a public official to immunity both from liability and from

the risks of trial, issues of immunity must be resolved “as early as possible in the

legal proceedings.” See Cameron v. Lang, 549 S.E.2d 341, 344-45 (Ga. 2001).

When deciding issues of state law, “we are bound to decide the case the way it

appears the state’s highest court would.” Royal Ins. Co. of Am. v. Whitaker Contr.

Corp., 242 F.3d 1035, 1040 (11th Cir. 2001).

       Under Georgia law, county law enforcement officers are entitled to official

immunity from suit and liability unless they “negligently perform a ministerial act

or act with actual malice or an intent to injure when performing a discretionary

act.” Roper v. Greenway, 751 S.E.2d 351, 352 (Ga. 2013); see also Ga. Const. art.

I, § II, par. IX(d).

       Whether an official’s act is ministerial or discretionary is determined based

on the facts of each case. Grammens v. Dollar, 697 S.E.2d 775, 777 (Ga. 2010).

Georgia courts define a “ministerial act” as “commonly one that is simple,

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absolute, and definite, arising under conditions admitted or proved to exist, and

requiring merely the execution of a specific duty.” Id. “A discretionary act,

however, calls for the exercise of personal deliberation and judgment, which in

turn entails examining the facts, reaching reasoned conclusions, and acting on them

in a way not specifically directed.” Id.

      Plaintiffs argue that, although Corporal Griggs was performing a

discretionary act when he attempted to arrest D.M.C., he had a “simple, absolute

and definite duty” -- imposed by an established FCPD policy -- to keep his finger

off the trigger unless he intended to shoot. As a result, Plaintiffs contend that

Corporal Griggs was engaged in a ministerial act when he negligently put his

finger on the trigger and, thus, is unentitled to official immunity.

      Given the undisputed facts and as a matter of law, we reject Plaintiffs’

argument for two reasons. First, the FCPD policy at issue in this appeal did not

impose a ministerial duty on Corporal Griggs. Under Georgia law, for an

established policy to impose a ministerial duty on the part of an official, it “must

mandate simple, absolute, and definite action and require the execution of a

specific task without any exercise of discretion.” Grammens, 697 S.E.2d at 777-

78; see also Roper, 751 S.E.2d at 353 (“Procedures or instructions adequate to

cause an act to become merely ministerial must be so clear, definite and certain as

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merely to require the execution of a relatively simple, specific duty.”). “Where the

. . . policy requires the public official to exercise discretion in the implementation

of the . . . policy, the policy does not require the performance of a ministerial

duty.” Grammens, 697 S.E.2d at 778. In Grammens, the Supreme Court of

Georgia concluded that a school policy requiring the use of eye protection while

using “explosive materials” imposed no ministerial duty on a teacher, because the

policy did not define the term “explosive materials” and, thus, required the teacher

to use her discretion in determining whether the eye-protection policy applied to a

given situation.

      Here, the FCPD says it had an established policy “prohibiting officers from

placing their fingers inside the trigger guard of their firearms unless they

reasonably believe their life is in danger or that they will suffer serious bodily

injury.” (emphasis added). In other words, the policy requires an officer to keep

his finger off the trigger “unless he intends on using deadly force.” (emphasis

added). By its very nature, the FCPD policy requires an officer to weigh various

circumstances and to use his personal judgment and experience to determine

whether the policy is applicable. So, the policy imposes no ministerial duty on

FCPD officers.




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      Second and besides, even though Corporal Griggs admittedly violated an

established FCPD policy, the Supreme Court of Georgia has rejected expressly the

argument that an officer’s failure to comply with state law or department policy

while engaged in an otherwise discretionary act converts the officer’s conduct into

a ministerial act for purposes of official immunity. See Phillips v. Hanse, 637

S.E.2d 11, 12 (Ga. 2006) (affirming summary judgment based on official immunity

because officer had discretion to engage in high-speed chase, and the officer’s

violations of several provisions of the police manual during the chase did not turn

his discretionary act into a ministerial one); Cameron, 549 S.E.2d at 345-46

(officer entitled to summary judgment based on official immunity because his

failure to activate his lights and siren, in violation of state law, did not transform

his discretionary decision to engage in a high-speed chase into a ministerial act);

Logue v. Wright, 392 S.E.2d 235, 237 (Ga. 1990) (officer responding to

emergency was entitled to summary judgment based on official immunity even

though he acted negligently by failing to activate his light and siren, in violation of

state law). In Logue, the Supreme Court of Georgia reasoned that, although the

officer had no discretion to violate the law (and, thus, acted negligently in doing

so), official immunity protects officers “who perform discretionary acts in a




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negligent manner.” 392 S.E.2d at 237. To say otherwise “would render the rule

meaningless.” Id.

      In the light of the established precedent of the Supreme Court of Georgia,

we conclude that Corporal Griggs is entitled to official immunity. At the time of

the shooting, Corporal Griggs was engaged in the discretionary act of arresting

D.M.C. See Touchton v. Bramble, 643 S.E.2d 541, 545 (Ga. Ct. App. 2007)

(“Under Georgia law, an officer’s decision to effectuate a warrantless arrest

generally is a discretionary act . . . .”). That Corporal Griggs, in violation of FCPD

policy, placed his finger inside the trigger guard of his gun when he had no

intention of shooting D.M.C. did not render his otherwise discretionary act

ministerial. Instead, the fact that Corporal Griggs violated FCPD policy is

pertinent only to a determination of whether he performed a discretionary act

negligently or with actual malice. See Phillips, 637 S.E.2d at 12; Roper, 751

S.E.2d at 354.

      Because Corporal Griggs, as a matter of law, was engaged in a discretionary

act at the time of the shooting and because the district court has already determined

that nothing evidenced that Corporal Griggs acted with actual malice or intent to

injure D.M.C., Corporate Griggs is entitled to official immunity on Plaintiffs’ state




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law claims. We vacate the district court’s denial of summary judgment, reverse

and remand.

      VACATED; REVERSED AND REMANDED.




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