Full Opinion

FIFTH DIVISION BROWN, C. J., MERCIER, P. J., and EPPS, J. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules November 3, 2026 In the Court of Appeals of Georgia A26A1487. BURTON v. DAVIS et al. MERCIER, Presiding Judge. Isis Burton filed an excessive force action against David Davis, individually and in his capacity as Sheriff of Bibb County, and Shane Smith, individually and in his capacity as Deputy Sheriff of Bibb County, along with John Does, arising from injuries Burton sustained when she was arrested in the Bibb County Courthouse. Davis and Smith (collectively “the defendants”) moved for summary judgment, which the trial court granted. Burton appeals, arguing that the trial court erred by granting summary judgment on her 42 USC § 1983 and state law claims. Finding no error, we affirm. “On appeal from the grant of summary judgment, this Court 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.” Robinson v. Metropolitan Atlanta Rapid Transit Auth., 334 Ga. App. 746, 746 (780 SE2d 400) (2015) (quotation marks omitted). See OCGA § 9-11-56(c). So viewed, the evidence shows that, on July 15, 2022, Burton arrived at the Bibb County Courthouse to obtain a protective order, and she wore a hat in the courthouse. Hats, however, are not allowed to be worn inside the courthouse. While the officers’ and Burton’s accounts differ regarding how many times Burton was told to remove her hat,1 Burton testified that an officer at the security checkpoint told her that “they’re going to make you take your hat off” and “they’re going to make you take your hat off in the courtroom.” Burton walked to an elevator near the security checkpoint and kept the hat on her head as she waited. One of the officers at the security checkpoint requested that Smith, who was working as a deputy sheriff at the courthouse, provide assistance with Burton given her refusal to remove her hat. Smith approached Burton and told her to “leave the 1 The officers who were working at the security checkpoint averred that they told Burton numerous times to remove her hat, beginning before she went through the metal detector. According to the officers, Burton removed her hat to proceed through the metal detectors and then put her hat back on her head. She was again told to remove her hat, but she kept the hat on and walked towards the elevators. Smith approached and told Burton multiple times to remove her hat, but she refused. 2 courthouse premises for failure to obey instructions.”2 Burton took her hat off as she walked into the elevator. Smith followed Burton into the elevator and told her that she was committing “criminal trespassing.” Burton argued that she was not trespassing and that she had an appointment at the courthouse. Smith grabbed Burton, handcuffed one of her wrists, told her repeatedly that she was trespassing, and threatened to tase her. Smith and Burton walked out of the elevator, but Smith was unable to put the other handcuff on Burton because Burton had her arms in the front of her body, so two other officers came to assist. When the officers were unable to restrain Burton, Smith tased her in the back twice, Burton fell to the ground, and Smith was able to get the handcuff on Burton’s other wrist. Burton was arrested for willful obstruction of law enforcement, criminal trespass and disorderly conduct, but the charges were later dismissed. As a result of the underlying events, emergency medical services had to pull the taser prongs out of Burton’s back. In addition, one of her fingernails broke, and one 2 Burton testified that while she “heard yelling,” she could not “recall what [Smith] was saying.” 3 of her arms was bleeding from the handcuffs.3 Burton also suffered a sickle cell disease flare-up due to stress from the event, and she had to obtain corresponding medical treatment. Burton still has “a scar on [her] arm from how hard [Smith] was yanking on [her],” and she suffers from some numbness in her left wrist. In support of their motion for summary judgment, the defendants submitted a video, taken of a computer monitor playing a sped up, soundless surveillance video, which depicts the courthouse’s security checkpoint. The video begins after Burton had already proceeded through security and is standing next to the elevator wearing a baseball hat. An officer, who is standing next to the metal detector, faces Burton, and then turns around and looks off screen, while gesturing towards Burton. Smith enters the frame, points to the door used to enter and exit the courthouse, and approaches Burton. As Smith approaches, Burton, who was facing Smith, moves the hat on her 3 While Burton testified that “all [of her fingernails on her left hand] were ripped off from the impact of [her] hitting the ground[,]” a photograph in evidence reveals that only one fake fingernail came unattached from her real fingernail. See Smith v. Wal-Mart Stores East, 330 Ga. App. 340, 348(2)(b)(ii) (765 SE2d 518) (2014) (where a party’s account “is blatantly contradicted by” evidence such as a photograph or videotape, a court should not adopt the party’s “version of the facts for purposes of ruling on a motion for summary judgment”(quotation marks omitted)). 4 head, initially to wear the hat backwards, then appears to take off the hat, and enters the elevator.4 Smith follows Burton into the elevator, but his hand, which continues to point to the exit, initially remains visible while the rest of Smith’s body was in the elevator. Then, for a brief period, Smith and Burton are entirely inside the elevator and outside of the video’s view. Burton exits the elevator with her arms firmly clasped in front of her body, while Smith is behind her struggling to pull her arms back. As Smith struggles to apply handcuffs to Burton, another officer approaches, grabs one of Burton’s arms and tries to help Smith gain control. Burton continues to resist the officers, and a third officer approaches and tries to help gain control, but Burton continues to resist their attempts to handcuff her. Smith deploys his taser gun on Burton and she falls to the ground. Thereafter, Burton is placed in handcuffs and lifted off the ground. The trial court granted the defendants’ motion for summary judgment, and this appeal followed. 4 The video does not show the inside of the elevator. 5 1. Burton argues that the trial court erred by granting summary judgment on her 42 USC § 1983 claims. 42 USC § 1983 establishes a civil action against “[e]very person who, under color of any statute ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]”5 “To be entitled to relief under 42 USC § 1983, a plaintiff must show that she has been deprived of a right secured by the Constitution and laws of the United States, and that the defendant acted under color of state law.” Barrow v. Raffensperger, 308 Ga. 660, 689(5) (842 SE2d 884) (2020). “A claim based on the Fourth Amendment prohibition against unreasonable seizure of the person applies where alleged excessive force was used to seize a person during the process of arrest, prior to actual detention on the charges.” Whitten v. Wooten, 295 Ga. App. 281, 283 (671 SE2d 317) (2008). Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests 5 “Georgia courts can adjudicate 42 USC § 1983 claims[.]” Sullivan v. State, 279 Ga. 893, 895(1) n.3 (622 SE2d 823) (2005). 6 at stake. Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Because the 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. Graham v. Connor, 490 US 386, 396 (109 SCt 1865, 104 LE2d 443) (1989) (citations and punctuation omitted). We review reasonableness “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” keeping in mind 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.” Robinson, 334 Ga. App. at 750(2). Whether an officer’s actions were objectively reasonable under the facts construed in the plaintiff’s favor “is a pure question of law.”Kline v. KDB, Inc., 295 Ga. App. 789, 794(2) (673 SE2d 7 516) (2009) (quoting Scott v. Harris, 550 US 372, 381(III)(B) fn. 8 (127 SCt 1769, 167 LE2d 686) (2007)). Viewed in the light most favorable to Burton, she was told by an officer that she would need to remove her hat, but she did not remove the hat until Smith approached her as she was entering the elevator. Burton was informed by Smith, repeatedly, that she was committing criminal trespass, but she argued with him and refused to leave. As Smith was attempting to handcuff her with her hands behind her back, Burton locked her arms in front of her body, and, even after two other officers assisted, she resisted and could not be handcuffed. It was only after all three officers failed to handcuff Burton that Smith deployed his taser gun twice. While Burton’s crimes at issue when she was seized, criminal trespassing and disorderly conduct, were not severe, Burton actively resisted arrest by three officers. The defendants assert the defense of qualified immunity, “which 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.” Kline, 295 Ga. App. at 793(2) (quotation marks omitted). Given 8 both Burton’s refusal to leave the courthouse after Smith informed her that she was trespassing, and her adamant and forceful resistence to arrest, Smith was entitled to qualified immunity for his actions. See Robinson, 334 Ga. App. at 750-751(2) (trial court did not err in granting summary judgment to officers on qualified immunity grounds when they tased the plaintiff without warning, and continued to tase him while he was lying on the ground, after the officers witnessed the plaintiff hit someone on New Years Eve in a crowd, despite the fact that plaintiff was defending himself, given the officer’s need to exercise quick measures to avoid the possibility of escalating violence); Andrews v. Fuoss, 417 F3d 813, 818-19(II) (8th Cir. 2005)6 (Sheriff’s act of pushing defendant’s mother when she took steps near the defendant in the courtroom, when she had been told to not have physical contact with him, was not excessive force given “the rapidly developing nature of the incident”); Draper v. Reynolds, 369 F3d 1270, 1277(III)(D) (11th Cir. 2004) (the officer’s use of a taser gun once during a traffic stop for an inadequately illuminated tag light did not constitute excessive force given the circumstance, as the plaintiff yelled and refused to give the 6 “[W]hile not controlling, federal law interpreting Fourth Amendment excessive force claims are ... instructive[.]” Upshaw v. Columbus Consolidated Gov’t, 369 Ga. App. 524, 532(1) n.8 (894 SE2d 75) (2023). 9 officer requested items, despite numerous requests). Compare Byrd v. Cavenaugh, 269 Ga. App. 612, 615 (604 SE2d 655) (2004) (reversed trial court’s dismissal of excessive force claim because “we cannot say that the use of force powerful enough to break [the plaintiff’s] arm after she was handcuffed and on her knees was reasonably necessary in making her arrest”). Similarly, Burton’s related arguments regarding her negligent training and supervision claims against Davis under 42 USC § 1983 fail. “In the absence of any Fourth Amendment violation by [Smith] during the arrest, there is no basis for [Burton’s negligent training and supervision] claim against [Davis] under 42 USC § 1983.” Robinson, 334 Ga. App. at 751(3) (quotation marks omitted). 2. Burton claims that the trial court erred by finding that Smith and Davis were protected from her state law claims by official immunity as a matter of law.7 We disagree. The Georgia Constitution provides that: 7 Of note, Burton does not contend that the trial court erred by dismissing her state law claims against the defendants in their official capacity. See generally Gilbert v. Richardson, 264 Ga. 744, 750(4) (452 SE2d 476) (1994) (“While suits against public employees in their personal capacities involve official immunity, suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.” (quotation marks omitted)). 10 Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.... Ga. Const. of 1983, Art. I, Sec. II, Par. IX(d). It is undisputed that the defendants’ acts at issue were discretionary. As such, they are entitled to official immunity unless there is a question of material fact as to whether they acted with “actual malice” or “ actual intent to cause injury[.]” Id. “‘Actual malice,’” as that term is used in the constitutional provision, denotes express malice, i.e., a deliberate intention to do wrong, and does not include implied malice, i.e., the reckless disregard for the rights or safety of others.” Murphy v. Bajjani, 282 Ga. 197, 203(4) (647 SE2d 54) (2007) (quotation marks omitted). Smith informed Burton multiple times that she was trespassing, and he threatened to tase her multiple times before he actually tased her. Burton locked her arms and resisted being handcuffed, and Smith only deployed his taser when he, with the assistance of two other officers, was unable to handcuff Burton. As such, Burton 11 has failed to show that Smith acted with an actual intent to injure her. See Hall v. Acker, 367 Ga. App. 411, 417-18(2) (885 SE2d 266) (2023) (high school security officer, who approached a student, slammed her to the ground, put her in handcuffs and pepper sprayed her in the face while she was handcuffed after she belligerently refused to leave a classroom and go with him, was entitled to official immunity when student failed to show that the officer “acted with actual intent to injure her”). Compare DeKalb v. Bailey, 319 Ga. App. 278, 282-83(2) (736 SE2d 121) (2012) (officer was not entitled to official immunity when he shot the victim in the back as the victim was running away from the officers and “had dropped his cell phone (misperceived previously as a weapon), and was screaming for help”). Further, “[t]his Court has consistently held that the operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function as opposed to a ministerial, proprietary, or administratively routine function.” Russell v. Barrett, 296 Ga. App. 114, 120(3) (673 SE2d 623) (2009) (quotation marks omitted). As Burton has failed to 12 point to any evidence of malice, the trial court did not err by granting summary judgment on her state law claims against Davis. See id. Judgment affirmed. Brown, C. J., and Epps, J., concur. 13