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 theMetropolitanAtlantaRapidTransitAuthority(“MARTA”),OfficerParisSwinson,

OfficerV.Samuel, andOfficerJ.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’sfailure 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 onRobinson

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 fromthe grant ofsummary judgment, this[C]ourt conducts a de novo

review of the evidence to determine whether there is a genuine issue of material fact and

whetherthe undisputed facts, viewed in the light mostfavorable 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

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

Robinson attempted to slip past him, butWilliamhitRobinson in the back.Robinson and

Williams exchangedwords, andasRobinsonwalked away,Williamsfollowed the couple

and hitRobinson 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 ofseconds,” 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 ofthe officerstwistedRobinson’s wrist.Robinson waslaterreleased

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

chargedwith disorderly conduct.AlthoughRobinsontoldofficersthat hewas notinjured

and did notrequire medical treatment, he later alleged that he had suffered injuriesto 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.OfficerSwinson didnotsee the fight betweenRobinsonandWilliams,

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

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

arrested. Fromhis position on a nearbywall,OfficerBoggssawWilliams grabRobinson

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 contendsthat 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]ourtsmust considerthe issueof agovernment employee’s qualified immunity

from liability asthe 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

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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 notwhethertherewas probable cause, but

whether there was “arguable” probable cause to arrest. In other words, we

must determine whetherreasonable officersin the same circumstances and

possessing the same knowledge astheDefendants 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

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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’simmediate 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)

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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.AlthoughRobinsonmaintainsthat he acted in self-defense andwas not awilling

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 asthe totality ofthe 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

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officer used excessive force during an arrest is properly analyzed underthe

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 claimof 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, violatesthe FourthAmendment.The calculus ofreasonableness

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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

measuresto 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 tasershould 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.

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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 ofCorrections, 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.

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“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 himof a constitutionalright 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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