The Eleventh Circuit Court of Appeals has recently clarified the legal standard necessary to strip government officials of their entitlement to statutory immunity. The ruling clarifies the misunderstanding reflected in several lower court decisions. In reaching its conclusion, the Court conducted a thorough analysis of the statutory immunity provisions codified in Section 768.28(9)(a), Florida Statutes, which provides a limited waiver of sovereign immunity.

This case arises from a criminal investigation into a complaint of animal cruelty made to the Hillsborough County Animal Services Department. The investigation culminated in the issuance of a search warrant for the home of a man accused of mistreating animals. The alleged offender was arrested for, but later acquitted of, aggravated cruelty to animals, battery on a law enforcement officer, and resisting an officer without violence. He later sued multiple defendants, including several individual law enforcement officers, for claims including false arrest, false imprisonment, and battery pursuant to Florida law.

It was undisputed the officers were acting within the course and scope of their employment when they detained, searched, and arrested the alleged offender. The officers moved for summary judgment on sovereign immunity grounds, citing an entitlement to statutory immunity. As a general rule, all government officials, not just law enforcement officers, are immune both from being named in a suit and from damages for conduct occurring within the course and scope of their employment, unless they act in “bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” The entry of summary judgment is only appropriate where there are no materially disputed facts. The trial court in this case denied the officers’ motions, deciding that there were factual disputes about whether probable cause existed for the arrest. The officers filed an immediate appeal prior to the resolution of the case.

During the appeal of the denial of the officer’s entitlement to immunity, the alleged offender argued the appellate court lacked jurisdiction to hear the appeal of a non-final order before the case had been fully adjudicated in the trial court. The Eleventh Circuit denied the motion to dismiss, and held that the denial of the entry of sovereign immunity falls within the very narrow scope of non-final orders that may be immediately appealed, because in Florida, the immunity extends to the freedom to be free from having to participate in the lawsuit.

The primary focus of the appeal was the definition of the phrases “bad faith,” “malicious purpose,” and “wanton and willful disregard,” as these phrases are not defined by statute. After careful and thorough analysis, the Court rejected a common misunderstanding held by other federal trial courts that “malice” might be inferred from the absence of probable cause, the existence of which remained at issue in the trial court. Instead, the Court held that the legal malice inferred from the alleged absence of probable cause was insufficient as a matter of law to strip the officials of their immunity, and instead, the alleged offender was required to prove actual malice.

To more fully define the statutorily undefined phrases, the Court turned to cases where the phrases were evaluated by Florida courts under other circumstances. In other contexts, courts have equated “bad faith” with “actual malice.” The “actual malice” and “malicious purpose” exceptions apply when the conduct was committed with “ill will, hatred, spite, or an evil intent.” This is contrasted with the erroneous interpretation of the trial court, and other lower courts, which permits the inference of malice from an oversight or technical error. The difference is self-evident. The Court interpreted existing Florida law to define the “wanton and willful requirement” as describing conduct “much more reprehensible and unacceptable than mere intentional conduct.” Therefore, like with the bad faith and malicious purpose exceptions, government officials must act with specific state of mind, rather than an intentional act performed negligently or improperly, before they may lose their immunity.

An analysis of the specific facts of the case, which is required anytime an immunity defense is asserted, revealed that the alleged offender offered no evidence that any of the officers asserting the immunity defense had the culpable state of mind. The Court found that he offered only speculation and inferences, which were held to be insufficient to overcome the officials’ immunity. “Speculation is not evidence,” the Court succinctly noted. After clarifying the entitlement to immediate appeal, defining the statutorily undefined phrases, and applying the law to the facts, the Court held that no reasonable jury could possibly conclude that the officers’ conduct fell within the narrow exceptions to sovereign immunity. The Court held the officers were immune from suit and remanded the case for the resolution of the remaining claims.

This case is important to law enforcement officials specifically and government employees generally. As a threshold matter, it confirms the entitlement to an immediate review of the denial of sovereign immunity. An immunity from participating in a lawsuit would have little value if one had to wait until the conclusion of the suit to appeal the denial of the sovereign immunity defense. The Court also provided much needed clarification of the statutorily undefined phrases that establish the exceptions to immunity, as well as the state of mind of officials that must exist before their statutory immunity can be stripped from them.

Agency heads, their general counsel, litigation attorneys, and claims managers should familiarize themselves with this recent holding and recalibrate their understanding of the entitlement to sovereign immunity. This case re-casts the standard for federal trial courts within the Eleventh Circuit and offers much needed clarification to the critical issues impacting the application of sovereign immunity to individually named government officials.