William Atkins (left) and Zack Greenamyre. (Courtesy photos)

The actions of the officers accused of killing George Floyd have been universally condemned by politicians, law enforcement officials and protesters worldwide. Virtually all agree that their actions should not be excused and cannot be justified as a legitimate use of police power in any civilized society.

Resulting conversation and protest has led to widespread calls for reform, including of the ways in which our civil justice system holds law enforcement accountable when officers violate citizens' rights. That dialogue got us to thinking about "official immunity," which acts as a defense for suits against government actors under Georgia state law and in many other states. In the years since protests against law enforcement killings have become endemic, and despite several high-profile deadly force cases here in Georgia, we know of no effort to reform our official immunity doctrine. We think that is a mistake.

Consider how a wrongful death case filed on behalf of George Floyd's family would fare in our courts. Official immunity would arguably shield the officer who put his knee on George Floyd's neck for nearly nine minutes, and certainly the officers who helped him, from ever facing a jury in a civil case, as a judge would probably be bound to grant summary judgment. Paradoxically, it is easier to secure a criminal conviction than it is to hold an officer liable for damages for the exact same conduct.

To overcome "official immunity," a plaintiff must prove that the defendant officer acted with "actual malice," that is, "a deliberate intention to cause the harm suffered by the plaintiff," not merely an intent to do the act that resulted in the harm. Malice requires evidence of a "wicked or evil motive." The standard expressly excludes "implied malice, or the reckless disregard for the right and safety of others."

Compare that to the standard for proving intent in a criminal malice murder case. Malice may be express—an intent to kill—or implied. "Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart." Consider also that a felony murder conviction requires no evidence of malice. All that is required is intent to commit the underlying felony.

In George Floyd's case, the state might not be able to prove express malice, but there is strong argument that the officer who kept his knee on Floyd's neck for 8 minute 43 seconds, while Floyd begged for his life, had an "abandoned and malignant heart." At minimum, the state could establish the intent necessary to conviction him for aggravated assault, and thus secure a conviction for felony murder.

What about the other officers involved in Floyd's death? At least for those who helped hold Floyd down, the state could make a compelling argument that they too demonstrated an abandoned and malignant heart. More likely, the state would pursue a felony murder conviction.

But in a wrongful death case, Floyd's family would confront official immunity's actual malice standard, needing to prove the officer acted with an evil and deliberate intention to cause the harm suffered by the plaintiff—the intent to kill. That standard is nearly indistinguishable from the "express malice" standard required to secure a malice murder conviction in Georgia.

Perhaps a judge would allow a civil case to get to a jury against the officer who kept Floyd under his knee, but as to the other officers who participated in the incident, without the ability to prove "implied malice," that judge would almost certainly have to grant summary judgment. Thus, despite the higher burden of proof for a criminal conviction, we submit that it would almost certainly be easier to secure criminal convictions for malice murder and felony murder than it would be to pierce official immunity in a civil case.

This example shows how the actual malice standard goes too far in protecting government officials from tort liability. That is not to say Georgia should abandon official immunity altogether. Rather we submit that government officials should be entitled to no greater protection than our tort law affords defendants in other contexts where plaintiffs must prove malice or an "intent to cause harm."

For false arrest or malicious prosecution cases brought against a business, the Civil Pattern Jury Instructions provide that "[m]alice may consist in personal spite or in a general disregard of the right consideration of people directed by chance against the individual injured." Similarly, it is well established that a jury can infer malice from a want of justification. Such a standard resembles the "implied malice" standard for a murder conviction.

In the punitive damages context, proving a specific intent to cause harm requires evidence that "the party desires to cause the consequence of its act or believes that the consequences are substantially certain to result from it." That too is a less demanding standard than "actual malice."

One final crucial distinction: Questions of malice in these contexts are nearly always reserved for the jury after hearing the evidence from the witness stand at trial. A jury may find intent "upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the alleged act." A jury "may presume a person of sound mind and discretion intends the natural and probable consequences of his acts."

But in the official immunity context, the question of actual malice is regularly decided by a judge on paper submissions at summary judgment. This is understandable given the heightened burden. But we submit that where a government official exercises power granted by "the people," those people—or at least 12 of them—should nearly always decide whether the government official abused the power granted to them.

The General Assembly should enact legislation eliminating the "actual malice" standard for overcoming official immunity in cases involving local government officials. The legislation should adopt the definition of malice found in the malicious prosecution jury charge and expressly permit proof of "implied malice." Finally, the legislation should codify that, in all but exceptional cases, questions of malice and the absence of justification are reserved for the jury.

We submit that the "malice" necessary to overcome official immunity should reflect common-sense background tort principles and not put officers beyond the reach of the courts.  Certainly, it should not be harder to obtain the gravest criminal conviction than it is to get a civil case to a jury.

William J. Atkins is a partner at Edmond, Lindsay & Atkins. A former prosecutor, he has represented law enforcement officers and victims of police misconduct in state and federal court for 20 years.

Zack Greenamyre is an attorney at Mitchell & Shapiro and frequently represents plaintiffs in civil rights actions against law enforcement.