Dillard, Presiding Judge. Shantai Brooks appeals the trial court’s grant of Andrew Palmer’s motion to dismiss her complaint against him, which alleged claims of false arrest, false imprisonment, and excessive force.[1] In doing so, Brooks contends the trial court erred in finding that Palmer (a police officer) was entitled to qualified immunity as to her false-arrest claim, arguing that he lacked probable cause to arrest her. For the reasons set forth infra, we affirm. Construing the complaint in the light most favorable to Brooks with all doubts resolved in her favor,[2] the record shows that on June 12, 2017, she entered a C&C Beauty store to purchase two products. When Brooks was checking out, she realized that she had a product she previously purchased from the store in her purse, and she advised the cashier this product was “not useable.” The cashier then told the manager, John Kim, about Brooks’s complaint, and according to Brooks, Kim was “rude, disrespectful, and made accusatory statements” directed at her. At this point, Brooks decided to leave the store without buying anything because of Kim’s behavior. Brooks returned to her vehicle, but after a few minutes, she realized that she forgot to take the defective product back from the cashier, so she left her car running and went back inside the store to get it. When she did so, Kim gave her the product back, but continued to be rude and disrespectful. In response, Brooks asked Kim for his name and the store’s address, so she could report him to the Better Business Bureau. But Kim refused to provide Brooks with any information, and instead called 911.[3] Kim told the dispatcher, “[w]e have a customer here and she brought something back [unintelligible]. [S]he don’t even have a receipt. I was wondering if you could send an officer to resolve this problem.” Importantly, after Brooks returned to the store, neither Kim nor anyone else associated with C&C Beauty asked her to leave. Eventually, Brooks left the store to turn her car engine off, and at the same time she was walking back to her car, Palmer—the responding officer—arrived. Brooks stopped Palmer and explained that she needed his help in getting certain information from the store’s manager. Palmer then asked Brooks for identification, but she refused to provide it. As a result, Palmer arrested Brooks for obstruction of an officer. And according to Brooks, she was physically injured during the arrest and subsequently suffered emotional distress. On December 9, 2019, Brooks filed a complaint against Palmer under 42 USC § 1983,[4] alleging claims of false arrest, false imprisonment, and the use of excessive force. Palmer answered the complaint, claiming to lack knowledge as to whether to admit or deny the vast majority of the complaint’s allegations. In addition, Palmer filed a motion to dismiss the complaint for failure to state a claim under OCGA § 9-11-12 (b) (6),[5] asserting, inter alia, that he was entitled to qualified immunity from Brooks’s claims. And following a hearing on the matter,[6] the trial court granted Palmer’s motion to dismiss the complaint on that basis. This appeal follows. In her sole claim of error, Brooks argues the trial court erred in finding that Palmer was entitled to qualified immunity from her lawsuit under the circumstances of this case. In doing so, she claims the court failed to construe the pleadings and all reasonable inferences from those pleadings in her favor, thereby basing its ruling on inferences and speculation with no factual basis. We disagree. When considering the question of whether the trial court erred in granting a motion to dismiss based on qualified immunity, we are mindful that “[a] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.”[7] And if, within the framework of the complaint, “evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.”[8] Importantly, the issue of immunity is “a question of law and is reviewed de novo.”[9] The Supreme Court of Georgia has explained that the doctrine of official immunity—also known as qualified immunity[10]—”offers public officers and employees limited protection from suit in their personal capacity.”[11] And this type of immunity derives from a 1991 amendment to the Georgia Constitution, which provides, in relevant part: 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.[12] Furthermore, our Supreme Court has explained that “[t]he doctrine of [qualified] immunity, developed primarily in Georgia through [caselaw], provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.“[13] In this regard, a ministerial act is “commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.”[14] On the other hand, a discretionary act “calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”[15] With this guiding analytical framework in mind, we turn to Brooks’s specific arguments. As previously noted, Brooks claims the trial court erred in finding that Palmer was entitled to qualified immunity from her claims because he arrested her for obstruction of an officer without probable cause—i.e., due to her refusal to produce identification when there was nothing to suggest she had engaged in any criminal activity. We disagree. The decision to effectuate a warrantless arrest “generally is a discretionary act requiring personal judgment and deliberation on the part of the officer.”[16] And 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.”[17] Importantly, the Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution “both protect an individual’s right to be free of unreasonable searches and seizures . . . .”[18] And, of course, “[a]n arrest is a seizure of the person, and the reasonableness of an arrest is determined by the presence or absence of probable cause for the arrest.”[19] Moreover, as explained by our Supreme Court, “[w]hen considering whether a police officer had probable cause to arrest, a court must evaluate whether the facts and circumstances known to the police officer would have led a reasonable officer to believe that the suspect probably had committed, was committing, or was about to commit a crime.”[20] Nevertheless, the appropriate inquiry for qualified immunity is “not whether there was probable cause, but whether there was ‘arguable‘ probable cause to arrest.”[21] And arguable probable cause exists if “a reasonable police officer, knowing what [Palmer] knew, could have believed there was probable cause for the warrantless arrest.”[22] Further, even when an arresting officer “operates on a mistaken belief that an arrest is appropriate, [qualified] immunity still applies.”[23] Indeed, in the absence of malice or intent to injure, “no liability attaches to the officer’s exercise of his lawful discretion even when the decision to effectuate the arrest is flawed.”[24] Here, Palmer arrested Brooks for misdemeanor obstruction of an officer for failing to comply with his request for identification. OCGA § 16-10-24 (a), which criminalizes that offense, provides: “Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer . . . in the lawful discharge of his or her official duties shall be guilty of a misdemeanor.”[25] Significantly, a police officer is not discharging his lawful duties when “he arrests an individual without reasonable or probable cause.”[26] In claiming to be entitled to qualified immunity, Palmer contends Brooks’s failure to comply with his request for identification obstructed his attempt to “investigate the 911 call[,]” which involved her. But Palmer has not argued that attempting to return merchandise without a receipt is, without more, a crime. To the contrary, Palmer acknowledges that Brooks was not “ involved in any criminal or unlawful activity that led to the 911 call.” Nevertheless, Palmer maintains that, when he arrived at the scene, he knew only that “an emergency call had been placed implicating potential crime.” But he does not identify any particular emergency or specify the potential crime at issue, and—construing the allegations of Brooks’s complaint in her favor—Kim never suggested to the 911 operator that there was an emergency or expressed any concern about potential criminal conduct.[27] Moreover, Palmer does not identify any other source of information regarding the situation besides the 911 operator. Simply put, when he arrived at the store, Palmer knew he was there only to help resolve a non-violent, civil dispute between Kim and Brooks over her attempt to return merchandise, and it is unclear why law enforcement needed to be involved in such a dispute at all. Under these circumstances, Palmer’s interaction with Brooks—prior to her arrest—was a so called first-tier encounter between a police officer and a citizen in which “police may approach citizens, ask for identification . . . and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.”[28] Furthermore, a mere refusal to identify oneself to a police officer is “not a crime.”[29] Indeed, it is well settled that a citizen’s ability to walk away from or otherwise avoid a police officer is “the touchstone of [a first tier] encounter.”[30] In fact, “even running from police during a firsttier encounter is wholly permissible.”[31] Simply put, Georgia law does not authorize law enforcement officers to “request identification from citizens for no reason and charge them with obstruction if they fail to comply.”[32] So, while Palmer had every right to request Brooks’s identification in their first-tier encounter, Brooks also had the right to refuse his request or even walk away from that encounter. Thus, because Palmer had no reason to believe Brooks (or anyone else) had been involved in any potential criminal activity, he lacked probable cause, arguable or otherwise, to arrest Brooks for obstruction based solely on her refusal to identify herself.[33] Nevertheless, this does not end our inquiry into whether Palmer is entitled to qualified immunity from Brooks’s claims. Indeed, Brooks must also show that Palmer acted with actual malice and an intent to injure her when effectuating her unlawful arrest.[34] And in Georgia, malice consists of “personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.”[35] And in the absence of malice or intent to injure, “no liability attaches to the officer’s exercise of his lawful discretion even when the decision to effectuate the arrest is flawed.”[36] In this case, Brooks does not mention, much less present, a cognizable legal argument that Palmer acted with actual malice or a willful intent to harm her when he arrested her. As a result, she has abandoned any argument in this regard.[37] Additionally, in her brief in opposition to Palmer’s motion to dismiss, Brooks also did not acknowledge the malice requirement for defeating Palmer’s qualified-immunity claim, much less argue that when he arrested her, Palmer was acting with malice or the intent to harm her. Suffice it to say, Brooks cannot raise an argument for the first time on appeal after failing to do so before the trial court.[38] As a result, Brooks has not provided this Court with any purported error regarding the malice requirement for us to review. For all these reasons, we affirm the trial court’s grant of Palmer’s motion to dismiss Brooks’s complaint. Judgment affirmed. Mercier and Markle, JJ., concur.
