Donald Morris “Administrator” is the administrator of the estate of Gregory Morris “Morris”, who died after he lost control of his motorcycle. The Administrator sued the mayor and police chief of Savannah, along with Officers Eugene Johnson and Rodney Gerido,1 alleging, among other things, that the decedent’s due process rights were violated when Johnson and Gerido ordered Morris to ride his motorcycle while he was inebriated. Johnson and Gerido filed motions for summary judgment, arguing that qualified and official immunity barred the Administrator’s claims.2 The Administrator appeals only the grant of summary judgment to the police officers on his federal claims. We affirm. In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.3 Viewed most favorably to the appellant, the evidence shows that Gregory Morris was a patron at the Huddle House Restaurant on the night of May 23, 1996. A restaurant employee called the police because Morris was creating a disturbance. The police arrived and summoned Morris to the outside of the restaurant. The employee who called the police and three restaurant patrons averred that Morris was obviously intoxicated and that despite his condition, the police officers ordered him to leave the premises on his motorcycle. Conversely, Officer Gerido deposed that he did not smell an odor of alcohol on Morris; that Morris’s speech was not slurred nor did he appear to be unsteady on his feet; that Morris did not appear to be under the influence of anything; that although Morris’s eyes were a little red and glassy, he assumed that it was an indication that Morris may have been tired; and that the officers simply told Morris that he could not go back into the restaurant. Morris died shortly thereafter when he lost control of his motorcycle and was hurled into a drainage ditch. “Government officials, including police officers, are entitled to immunity from personal liability under 42 U.S.C. § 1983 if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”4 The test is applied by considering the objective reasonableness of the official’s actions irrespective of his subjective beliefs in light of legal rules which were clearly established at the time the action was taken. Harlow , supra, 457 U.S. at 818-819. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . Anderson v. Creighton , 483 U.S. 635, 640 107 SC 3034, 97 LE2d 523 1987.5 The burden on the plaintiff to show a clearly established right is a strenuous one.6 And “if the law is not clearly established, the officer is entitled to summary judgment regardless of factual disputes.”7
The Administrator claims that the clearly established right violated by Gerido and Johnson was the right not to be ordered to commit a dangerous and suicidal act.8 Although the Administrator has cited no authority involving a civil rights claim after the police allegedly ordered a drunk to drive, we recognize that the right not to have one’s life taken away without due process of law is clearly established. It is also clearly established that driving while intoxicated is highly dangerous to the driver and to others. A factual issue exists about the intoxication because numerous witnesses deposed that the plaintiff’s decedent’s high state of intoxication should have been obvious to any observer while the two police officers, who had arrested persons for DUI in the past, testified that the motorcyclist did not appear to be intoxicated. Summary judgment for the defendants on the federal claims is possible, despite the factual dispute, if it appears as a matter of law that the evidence does not carry the “strenuous” burden of showing that the acts of the officers violated the decedent’s right.
