Jesse Goode sued the City of Conyers and two of its police officers, personally and in their official capacities, after one of the officers broke his arm during what they allege was a valid Terry pat-down for weapons.1 The City and police officers filed a motion for summary judgment, which the trial court granted as to Goode’s claims for punitive damages and attorney fees, but denied as to Goode’s claims of negligence and intentional torts. The City and the police officers appeal, claiming that audio/video recordings of the encounter reveal that there is no genuine issue of material fact remaining as to their liability. For the reasons described below, we reverse. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review the grant of a motion for summary judgment de novo.2 So viewed, the record shows that on June 8, 2006 at approximately 3:30 a.m., Goode was walking in the vicinity of a McDonald’s restaurant and a LongHorn Steakhouse in Conyers. Officer Johnny Campbell, who was aware of recent early-morning robberies at restaurants in Conyers, observed Goode, exited his patrol car, and made verbal contact with Goode. The encounter between Campbell and Goode was recorded by the video camera in Campbell’s patrol car and by the audio microphone on Campbell’s shirt. Goode acknowledged in his deposition that the recording provided a fair and accurate depiction of the incident. The officer asked Goode, who was wearing a coat and carrying a backpack, what he was doing in the restaurant parking lot at that hour of the morning. Goode responded that he was throwing away some trash. After Goode provided the officer with identification, the officer asked Goode whether he had any weapons. Although Goode claims that he told the officer that he did not, it is difficult to hear any response in the audio recording of the incident. The officer asked Goode nine additional times if he had any weapons before Officer Scott Slater arrived at the scene approximately two minutes later.
Campbell asked Goode three more times if he had any weapons. When Goode failed to answer, Campbell approached him from behind and made physical contact with him in what Campbell alleges was an attempt to frisk Goode for weapons. After Goode raised his right arm above his head, Campbell grabbed that arm and pulled it such a way that caused it to break.
