City of Cave Spring v. Mason

310 S.E.2d 892, 252 Ga. 3, 1984 Ga. LEXIS 564

• Court: Supreme Court of Georgia
• Decided: January 16, 1984
• Docket: 40155
• Status: Published

Opinions

Weltner, Justice.

Mason brought suit against the City of Cave Spring, its mayor and its police chief, seeking recovery for what he contends to be his wrongful arrest for the purported violation of a city ordinance. The police chief, acting on the instruction of the mayor, caused Mason to be served with a “Notice of Charges.” Subsequently, all contentions of the city were withdrawn, resulting in the initiation of Mason’s complaint.

Upon consideration of the city’s motions for summary judgment, the trial court entered an order, in part as follows: “An employee of the City may be liable for the illegal performance of a governmental function. . . . Under Davis v. City of Roswell . . . [250 Ga. 8(1) (295 SE2d 317) (1982)], a municipal corporation will be liable for the illegal performance of a purely governmental function if its actions deprive a person of federally guaranteed rights. This reasoning would also be applicable to the employees and officers of the municipal corporation. The right to be free from unlawful arrest or imprisonment is a federally guaranteed right. U. S. Constitution, Amendment IV. The arrest or imprisonment of an individual by a law enforcement officer at the direction of the Mayor of a municipal corporation without a warrant and without probable cause is an act done without authority of law.”

The city appealed, and the Court of Appeals affirmed on the basis of Davis. Dawson v. Mason, 167 Ga. App. 129, 132 (1) (305 SE2d 820) (1983). We granted certiorari to determine whether an action will lie under 42 USCA § 1983 against the city under the facts of this case.

In affirming the trial court, the Court of Appeals, through Presiding Judge McMurray, observed: “Despite all past decisions expressing interpretations of municipal governmental and ministerial functions and the application of sovereign or constitutional immunity of cities as subdivisions of this state, the recent decision of Davis v. City of Roswell. . . holds generally that claims by persons allegedly deprived of their constitutional rights under color of State law or custom may be maintained under 42 USCA § 1983 despite any governmental immunity claimed if facts are pleaded and proved in support of the claim under the above federal statute. Thus, while the defense of sovereign immunity is still viable in other cases, it is not viable in a case such as the two cases sub judice where the plaintiff contends he has been deprived of certain federally guaranteed rights. Under the authority of Davis v. City of Roswell . . . we hold that the trial court did not err in denying defendants’ combined motion for summary judgment based upon sovereign immunity.” 167 Ga. App. at 132.

It is likely that the trial court and the Court of Appeals based their rulings upon the broad language in Davis.

“In order to state a claim under 42 USCA § 1983 the plaintiff must allege that the defendant is a person who deprived him of a constitutional right while acting under color of state law or custom.” 250 Ga. at 9.

The significant inquiry here is, of course, the meaning of the terms “acting under color of state law or custom.” Obviously, every servant, agent, or employee of a governmental body, while in the course of employment, acts “under color of state law or custom.” “State law” is the progenitor of all public activity conducted within the bounds of our Georgia Constitution; “custom” is “state action,” lacking the express direction of “state law,” and “under color of’ is the equivalent of “in pursuit of.”

How, then, can we reconcile 42 USCA § 1983 with our traditional, constitutional, and statutory doctrine of sovereign immunity? See Constitution of Georgia of 1983, Art. 1, Sec. 2, Par. 9 (Code Ann. § 2-209), and OCGA § 36-33-3 (Code Ann. § 69-307): “A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.”

Assuredly, 42 USCA § 1983 is not a federally imposed doctrine of respondeat superior. “We agree that neither Monell [v. Dept. of Social Services, 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978)] nor Owen [v. City of Independence, 445 U. S. 622, 647 (100 SC 1398, 63 LE2d 673) (1980)] permit a municipality to be held liable under 42 USCA § 1983 solely on negligence or respondeat superior theories.” Davis, supra, 250 Ga. at 9.

Accordingly, the problem is centered not upon the act of the agent producing the harm, but upon the nature of the “state law or custom” as formulated by his principal — the term “principal” being understood to be the policy-making apparatus itself, e.g., the appointed or elected members of the several branches of state government, or the elected members of the governing body of a county or municipality, or the appointed governing body of any other agency of state, county, or municipal government.

We interpret 42 USCA § 1983 to create a cause of action, cognizable by the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right. Such a policy may be formal or informal, acknowledged or vigorously denied, persistent or intermittent, or implemented by but one single act. What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.

Decided January 16, 1984. Brinson, Askew & Berry, Robert M. Brinson, C. King Askew, for appellant. T. Peter O’Callaghan, Jr., for appellees. Walter Edwin Sumner, amicus curiae.

Because our holding in Davis made no delineation of these concerns, the case must be remanded to the trial court for reconsideration of the motion for summary judgment, and for further proceedings consistent herewith.

Judgment reversed.

All the Justices concur, except Hill, C. J., who concurs in the judgment only, and Smith, J., who dissents.