WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on defendants' Motion for Summary Judgment (doc. 13). The Motion has been extensively briefed and is ripe for disposition. Also pending is defendants' Motion to Strike Affidavit of Faya Rose Toure (doc. 23), as to which plaintiff did not respond within the time allotted by Civil L.R. 7(c).
On the afternoon of December 4, 2013, City of Selma Police Officer Desmond Williams shot and killed Ananias Shaw, a 74-year old male wielding a hatchet, as he stood outside a residence in Selma, Alabama. Edward Shaw, acting in the capacity of personal representative for Shaw's estate,
The Complaint purports to assert no fewer than 22 causes of action against defendants, sounding in theories of wrongful death, unreasonable use of force, false arrest (Fourth Amendment violation), false imprisonment (pleaded twice), policy of inadequate training and supervision, custom of police abuse (pleaded twice), custom of deliberate indifference relating to hiring, deliberate indifference to repeated complaints (pleaded twice), civil conspiracy (pleaded twice), assault and battery, false arrest (without mention of Fourth Amendment), invasion of privacy, negligence, wantonness, negligent/careless/unskillful hiring, negligent/careless/unskillful training or supervision, tort of outrage, and violation of Article 1, Section 1 of the Alabama Constitution. (See doc. 1-1.)
Defendants now move for summary judgment on all claims and causes of action interposed in the Complaint against all defendants.
Antecedent to addressing the Motion for Summary Judgment, the Court pauses to consider defendants' Motion to Strike (doc. 23). As part of his summary judgment response, plaintiff submitted the "Affidavit
In her Affidavit, Toure touts her membership in an organization known as the "Due Process Committee," which "investigates complaints of due process violations and suspected inequities in the criminal justice system in Selma, Alabama." (Toure Aff., at 1.)
The Court agrees with defendants that the Toure Affidavit suffers from several significant defects that necessitate its deletion from the summary judgment record. As an initial matter, it is uncontroverted that plaintiff never disclosed Toure as a witness, whether in his initial disclosures pursuant to Rule 26(a)(1)(A), in discovery responses, or in supplemental disclosures pursuant to Rule 26(e). Of course, Rule 26(a) mandates disclosure of "the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Rule 26(a)(1)(A)(i), Fed.R.Civ.P. The Rule 16(b) Scheduling Order unambiguously directed that "[t]he initial disclosures required by Fed.R.Civ.P. 26(a)(1) are
By all appearances, the first notice defendants received that Toure is or might be a witness for plaintiff was the receipt of her summary judgment affidavit on February 3, 2017. That is simply too late. Under the circumstances, the Court concludes that plaintiff failed timely to disclose Toure as a witness. That omission implicates Rule 37(c)(1), which provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, ... unless the failure was substantially justified or is harmless." Rule 37(c)(1), Fed.R.Civ.P. Plaintiff has made no argument and no showing that his failure to identify Toure in a timely manner was substantially justified or harmless. Accordingly, the Court finds that striking the Toure Affidavit is an appropriate sanction pursuant to Rule 37(c)(1).
Even if plaintiff's nondisclosure of Toure as a witness did not warrant striking her affidavit pursuant to Rule 37(c)(1) (which it does), defendants' Motion to Strike would be properly granted for two independent reasons. First, insofar as Toure's Affidavit merely parrots back what Toure says witnesses told her, such testimony does not appear capable of being presented in admissible form at trial. See, e.g., Johnson v. Mobile Infirmary Medical Center, 2015 WL 1538774, *1 (S.D. Ala. Apr. 7, 2015) ("It is well settled that exhibits are properly considered for summary judgment purposes as long as they may be reduced to admissible form at trial."); Rule 56(c)(2), Fed.R.Civ.P. ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). The summary judgment record is devoid of any ground for concluding that plaintiff could present this evidence in admissible form at trial. Certainly, it would be impermissible hearsay for plaintiff to call Toure to the stand to testify to what other people told her as substantive evidence of what actually happened that day. Nor could plaintiff call certain of these witnesses (Sernica Walker and other unnamed employees at Church's Chicken) to testify about their observations at trial, because plaintiff never disclosed Walker or those other individuals as witnesses, pursuant to Rules 26(a)(1) and 26(e). Finally, plaintiff could not call Toure in his case-in-chief to reiterate the words of Betty Ford (who is listed as a plaintiff's witness and whose video interview has been separately
A second independent reason for striking the Toure Affidavit is that it includes substantial information that is irrelevant to the issues joined in this case for trial. For example, Toure's role in the Due Process Committee, that Committee's activities, and the Committee's discussions with the District Attorney concerning facts and testimony that were or were not known to the grand jury are simply not relevant to the claims and issues joined in the Complaint.
For all of these reasons, the Motion to Strike (doc. 23) is
Shortly after 2:00 p.m. on December 4, 2013, Aninias Shaw attempted to enter the Church's Chicken restaurant on Broad Street in Selma, Alabama. Shaw was known to the restaurant staff as a longtime customer who "had came in there other times and cursed us out and stuff." (Lindsey Dep. (doc. 13, Exh. 6), at 5-6, 8.) To the restaurant's general manager, Ricky Austin, Shaw was known as a customer who had caused problems necessitating police intervention in the recent past. (Austin Dep. (doc. 13, Exh. 7), at 5-6, 11.)
Back to the afternoon of December 4, Austin observed Shaw approaching the entrance of the Church's Chicken restaurant armed with a hatchet. (Austin Dep., at 6.) Austin reached the door first, and told Shaw, "[N]o, you cannot come in." (Id.)
One recipient of the dispatch was City of Selma Police Officer Desmond Williams, who was driving his patrol car approximately two minutes away from the Church's Chicken restaurant. (Williams Dep. (doc. 13, Exh. 2), at 10-11.) Officer Williams had been hired by the Selma Police Department in August 2009, and had completed a 480-hour course at the Alabama Criminal Justice Training Center in November 2009. (Doc. 13, Exh. 11.) He had also completed numerous continuing education courses on topics such as use of force, interviewing individuals with mental illnesses, search and seizure, and firearm safety. (Id.) Upon receiving the dispatch, Officer Williams was contacted via radio by Detective Ronald Jones, who was completing a traffic stop in that area and had spotted Shaw in an alley near the Church's Chicken hollering and screaming to himself. (Jones Dep. (doc. 13, Exh. 4), at 6, 10.) Detective Jones believed that Shaw had gone into an abandoned laundromat building at the corner of Griffin and Washington, and could hear a person who he thought was Shaw being loud and "raising Cain" inside that building. (Id. at 18.) Detective Jones notified Officer Williams by radio that Shaw was in that abandoned laundromat. (Williams Dep., at 11.) Altogether, three Selma Police officers (the third being Officer Daniel Boone) responded to the call and arrived at the laundromat almost contemporaneously.
Officer Boone was familiar with Shaw, having dealt with him several times and having arrested him for public intoxication and disorderly conduct in the past. (Boone Dep. (doc. 13, Exh. 13), at 11-12.) When all three officers had arrived and exited their vehicles, Officer Boone went inside the abandoned building alone "to try to talk to Mr. Shaw and get him out" so that the officers "can talk and see what's going on," particularly given that there had been multiple instances of Shaw being disorderly at Church's Chicken. (Id. at 11, 14, 16.) Officer Boone asked Shaw to come out and talk. (Id. at 18.) In response, Shaw bent down and picked up a hatchet. (Id.) Officer Boone felt threatened, reasoning, "Mr. Shaw had a hatchet in his hand and posed a threat to me. If I would have let him leave, he would have posed a threat to the community as well." (Id. at 19.) When he saw Shaw pick up the hatchet and begin walking towards him, Officer Boone immediately drew his weapon and backed out of the building. (Id. at 25, 27.) Both Officer Boone and Shaw, still wielding the hatchet, exited the building, coming outside to where Detective Jones and Officer Williams were.
At the 1:50 mark, Detective Jones says, "You see his shoes right there?" and Officer Williams (who is now bending down to peer into the opening) answers affirmatively, with both officers chuckling. Officer Boone can be heard inside telling Shaw, "I just want to talk to you." Moments later, at the 1:57 mark, Officer Boone is heard (still inside the building) saying firmly and clearly, "Put the axe down." Officer Williams loudly repeats the command, "Put the axe down," approximately five times over the next 10 seconds, by which time Shaw has emerged from the building, still carrying the axe, and is now close by the other officers. At the 2:12 mark, Officer Williams, still loudly and forcefully saying "put the axe down" over and over again, draws his service firearm and points it at Shaw with both hands. Shaw appears on the screen at around 2:14, and commences walking away from the building, cursing and yelling as he does so, and saying, "I ain't putting a goddamned thing down." As Officer Williams and the other officers repeat the command to put the axe
By the 3:00 mark, Shaw is walking through what appears to be a residential or mixed-use area. Several people can be seen standing outside a house a short distance from where Shaw is. The officers continue to command Shaw to put the axe down and reassure him "we want to talk to you." However, Shaw keeps walking away, still grasping the weapon in his right hand. At the 3:10 mark, Shaw has slowed down and almost stopped walking. Following from a close distance, Officer Williams raises his firearm with both hands and again commands him to put the axe down. Beginning at the 3:20 mark, the situation escalates at lightning speed. Shaw steps off the street and into a grassy strip in front of a house (where several people are seen sitting on a porch), wheels and yells at the officers. At 3:23, Shaw turns to face Officer Williams, then shouts, "Shoot it! Shoot it!" Officer Williams responds, "I will pop you," as Shaw faces him from just a few feet away. At 3:25, Shaw moves suddenly toward Officer Williams; however, Shaw's right arm and the exact position of the axe are out of the frame. At 3:26, Shaw — still moving toward, and by this time less than five feet away from, Officer Williams — yells, "Shoot it!" again. His right arm and the axe remain outside the frame. Immediately (and still at the 3:26 mark), Officer Williams fires a single gunshot at Shaw's chest from very close range. Shaw falls to the ground.
In his deposition, Officer Williams explained that Shaw "was a threat to myself and to the other people around us.... His intentions were to hurt myself and possibly other people around us." (Williams Dep., at 34.) When asked why he shot
Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11
In Count 2 of the Complaint, plaintiff asserts a § 1983 claim for excessive force, alleging that Officer Williams violated Shaw's Fourth Amendment right to be free from unreasonable searches and seizures. On summary judgment, Officer Williams invokes the doctrine of qualified immunity, which "offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Vinyard v. Wilson, 311 F.3d 1340, 1346 (11
"[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, the critical question for evaluating whether a particular application of force is excessive for Fourth Amendment purposes is whether it was objectively reasonable. See, e.g., Smith v. LePage, 834 F.3d 1285, 1294 (11
The uncontested summary judgment record establishes that, at the moment Officer Williams fired the fatal gunshot, Shaw would have appeared to reasonable police officers to be gravely dangerous. Shaw was holding a deadly weapon — the hatchet — in his right hand. He had refused to comply with literally dozens of pointed, direct commands by law enforcement officers during the previous 90 seconds to relinquish that deadly weapon. He had displayed open hostility and erratic behavior, including a stream of profanity and often incoherent invective directed at Officer Williams and his colleagues. At the decisive moment, Shaw abruptly stopped walking away from Officer Williams, wheeled around to face him, screamed "shoot it! shoot it!" and either charged or lunged toward Officer Williams, still holding the hatchet in his right hand at a distance of no more than a couple of feet away from the officer. Both Officer Williams and numerous other witnesses testified that Shaw was raising the hatchet as he did so, as if preparing to strike Officer Williams.
In so concluding, the Court has considered multiple counterarguments raised by plaintiff. First, plaintiff presents a series of arguments second-guessing the police officers' decisions to confront Shaw in the abandoned laundromat, to follow him down the street, and to point a firearm at him. Those contentions are rejected for the reasons set forth infra, in the context of plaintiff's false arrest/false imprisonment claims.
Fourth, plaintiff's assertion that Officer Williams "provoked the decedent to turn around, by following him unlawfully with a loaded weapon trained at the back of the decedent's head" (doc. 21, at 12) is factually and legally misguided. As a factual matter, no reasonable observer watching the video could conclude that Officer Williams provoked Shaw to attack him. Officer Williams was attempting to defuse a tense and rapidly evolving situation by directing an erratic, hostile, armed suspect to relinquish his deadly weapon. No one will ever know why Shaw refused the officers' instructions and instead lunged toward Officer Williams while still carrying his axe. But it does not matter. On this record, no reasonable finder of fact could attribute Shaw's conduct to "provocation" by defendants. Even if plaintiff could make a factual showing of provocation, this argument would fail to overcome Officer Williams' cloak of qualified immunity because there was no clearly established law declaring it unconstitutional for a police officer to approach a suspect or "provoke" a confrontation. See, e.g., Davidson, 675 Fed.Appx. at 959, 2017 WL 164315, at *3-4 (rejecting argument that "Davidson disputes that there was any rapidly developing, uncertain, and tense situation until Hancock created one," in light of binding authority forbidding courts from using hindsight to assess reasonableness); Rachel v. City of Mobile, Ala., 112 F.Supp.3d 1263, 1281 (S.D. Ala. 2015) (where plaintiff argued that officers "provoked a violent situation" by approaching an emotionally disturbed person, finding nothing in the language of the Fourth Amendment or Supreme Court or Eleventh Circuit decisions that "speak to the constitutionality of the antecedent act of approaching the suspect or `provoking' a confrontation"). Fifth, plaintiff would rely on other officers' testimony that he says disapproves of Officer Williams' actions or establishes that other officers "knew the decedent wouldn't hurt him." (Doc. 21, at 12, 15, 16.)
The fundamental defect in all of plaintiff's excessive force arguments is that they disregard the Supreme Court's admonition that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Penley, 605 F.3d at 850 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Courts "must be careful to evaluate the reasonableness of an officer's conduct on a case-by-case basis from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Penley, 605 F.3d at 850 (citations and internal quotation marks omitted). "Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer." Carr v. Tatangelo, 338 F.3d 1259, 1270 (11
Counts Three and Four of the Complaint set forth what appear to be § 1983 claims of false arrest and false imprisonment.
As to false arrest, plaintiff asserts that (in addition to the use of deadly force addressed supra) defendants violated Shaw's rights to be free from false arrest because "[p]ointing a weapon at a subject is also a seizure under the Fourth Amendment." (Doc. 21, at 16.) Plaintiff elaborates, with no citations to authority, that Shaw "was unlawfully seized the moment Williams trained his weapon on him... when Williams first arrived at the laundromat." (Id. at 17.) The threshold defect in this claim is that a § 1983 false arrest claim requires an arrest. See, e.g., Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11
Notwithstanding the foregoing, the Court will examine the entirety of the officers' interaction with Shaw from a Fourth Amendment standpoint, on the off-chance that plaintiff may be asserting a § 1983 claim predicated on an alleged unconstitutional, non-arrest seizure of Shaw preceding the fatal shooting. As an initial matter, plaintiff suggests that the officers violated the Fourth Amendment by merely speaking with Shaw on the day in question. Plaintiff posits that the underlying offense (disorderly conduct) was a misdemeanor, that the officers did not have authority to arrest Shaw, that they should not have gone into the abandoned laundromat to speak with Shaw, and that they should have left him alone as he walked down Griffin Avenue towards Church's Chicken wielding a hatchet. All of these assertions are flatly irreconcilable with well-settled Fourth Amendment principles.
"In Terry v. Ohio, the Supreme Court held that an officer does not violate the Fourth Amendment by conducting a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Moore v. Pederson, 806 F.3d 1036, 1044 (11
In short, nothing about the officers' conduct in the approximately two-minute interval spanning from Officer Boone's entrance into the abandoned laundromat until the moment when Shaw turned around and charged at Officer Williams constituted an unreasonable seizure under the Fourth Amendment that might support officer liability under § 1983.
Plaintiff also asserts a false imprisonment claim under § 1983 "based on the protection of the Fourteenth Amendment against deprivations of liberty without due process of law." (Doc. 21, at 16.) The Eleventh Circuit recently set forth the elements of a § 1983 false imprisonment claim as follows:
May v. City of Nahunta, Georgia, 846 F.3d 1320, 1329 (11
The most fundamental problem with plaintiff's false imprisonment claim is that there was no confinement in this case. To be sure, Officer Williams drew his firearm, pointed it at Shaw, and issued certain commands to him. But none of those directives operated as a "direct restraint" on Shaw, compelled him to remain in a specific place or to go to a specific place, or otherwise operated to confine his movement in any form or fashion. The officers never commanded Shaw to stop moving or to go someplace else, but instead simply instructed him to disarm himself. Indeed, the proof is in the pudding. Shaw continued walking down the street as he pleased, without regard to what the officers were telling him. His freedom of movement was untrammelled by anything the officers said or did. Given these circumstances, there was nothing that could rationally be deemed a "confinement" or a "direct restraint;" therefore, plaintiff's false imprisonment claim fails as a matter of law.
In Counts 5 through 9 of the Complaint, plaintiff appears to assert various claims of § 1983 municipal liability against defendant City of Selma, grounded in theories of a policy of inadequate training and supervision, a custom of police abuse, a custom of deliberate indifference in hiring, and deliberate indifference to repeated complaints. With respect to all of these causes of action, plaintiff includes only a grand total of one paragraph in his summary judgment brief, wherein he (i) acknowledges his obligation "to identify a policy or custom of the police department that contributed to his injury," and (ii) states that the Selma Police Department "never had consistent training in dealing with mentally ill," and (iii) indicates that Officer Williams "had only an 8 hour workshop on dealing with the mentally ill." (Doc. 21, at 17.)
The defects in plaintiff's § 1983 municipal liability claims are glaring. As an initial matter, the Court has already found that Officer Williams and his colleagues did not violate Shaw's Fourth Amendment or Due Process rights in connection with their investigatory stop, their acts of following him down the street with weapons drawn and telling him to put down the hatchet, or the fatal shooting
Even if plaintiff had shown a constitutional deprivation by Officer Williams, § 1983 liability could not attach to the City under these circumstances. The parties agree that the plaintiff must "identify a municipal policy or custom that caused his injury." Gold v. City of Miami, 151 F.3d 1346, 1350 (11
Even if plaintiff could overcome all of these problems, his § 1983 failure-to-train claims against the City of Selma would nonetheless fail as a matter of law. It is well-settled that "under § 1983, a supervisor can be held liable for failing to train his or her employees only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [officers] come into contact." Keith v. DeKalb County, Georgia, 749 F.3d 1034, 1052 (11
For all of these reasons, summary judgment is properly entered in favor of the City of Selma as to all claims seeking § 1983 municipal liability.
What remains of the Complaint is a grab-bag of state-law claims. The only such causes of action that plaintiff identifies in his summary judgment Response as
In Count 11, plaintiff asserts a cause of action against Officer Williams for assault and battery, stating that he was "careless and unskillful in shooting the Decedent." (Complaint, ¶ 56.) Under Alabama law, a police officer may use a reasonable amount of force and may be held liable only if he or she uses more force than is necessary. See Walker v. City of Huntsville, 62 So.3d 474, 494 (Ala. 2010) ("a police officer may use reasonable force and may be held liable only if more force is used than is necessary to effectuate the arrest") (citation omitted). "The evaluation of whether an assault and battery took place in regards to an arrest mirrors whether excessive force was used in a federal claim." Rogers v. City of Selma, 178 F.Supp.3d 1222, 1247 (S.D. Ala. 2016). Both parties concur in their summary judgment briefs that the assault and battery claim stands or falls using precisely the same analysis as plaintiff's Fourth Amendment excessive force claim. The Court has already determined, supra, that Officer Williams' use of deadly force against Shaw was reasonable under the totality of the circumstances for Fourth Amendment purposes. That reasonableness determination conclusively defeats plaintiff's state-law assault and battery claim.
In Count 15 of the Complaint, plaintiff purports to bring a state-law invasion of privacy claim, on the ground that "[t]he Defendant Officers intentionally intruded upon the solitude or seclusion of the Decedent by invading his emotional sanctum." (Complaint, ¶ 77.) Alabama law requires that a claim for invasion of privacy predicated on a wrongful intrusion requires a showing that "the thing into which there is intrusion or prying is entitled to be private," after which "the court will consider two primary factors in determining whether an intrusion is actionable: (1) the means used, and (2) the defendant's purpose for obtaining the information." Martin v. Patterson, 975 So.2d 984, 994 (Ala.Civ.App. 2007); see also Johnson v. Corporate Special Services, Inc., 602 So.2d 385, 388 (Ala. 1992) (once the court "finds that the purpose of the investigation was legitimate ... the only issue remaining is whether the means used was offensive or objectionable"). It is far from clear in this case that the officers intruded or pried into anything relating to Shaw that was entitled to be private. Even if they had, as discussed at great length supra, the officers were plainly empowered under applicable law to approach Shaw for the purpose of investigating the disorderly-conduct call. When Shaw immediately picked up a hatchet and started walking down the street while cursing the officers and otherwise behaving erratically, it was likewise both lawful and reasonable for the officers to follow him and endeavor to disarm him before he hurt himself or members of the public. In short, the Court finds no genuine issue of material fact that (i) the purpose of the officers' investigation of Shaw was entirely legitimate, and (ii) the means they used to conduct that investigation were neither offensive nor objectionable. Any intrusion that the officers may have made into Shaw's emotional sanctum (and the Court is not at all convinced that there was such an intrusion) was not wrongful and, therefore, is not actionable under Alabama law.
Count 21 of the Complaint purports to assert a cause of action for the Alabama tort of outrage, or intentional infliction of emotional distress. To prevail
In Count 14 of the Complaint, plaintiff purports to assert a claim of civil conspiracy against all defendants, theorizing that they "failed and refused to provide Plaintiffs [sic] with any facts, reports, information, videos, etc in an attempt to avoid litigation" and "failed to conduct an adequate investigation." (Complaint, ¶ 68.) Plaintiff further alleges that "[a]s a proximate result of the defendants' acts and omissions, Decedent was caused to suffer injuries resulting in death." (Id., ¶ 69.) As an initial matter, this claim is pleaded in a nonsensical manner because defendants' post-shooting conduct could not have proximately caused Shaw's injuries resulting in death. Moreover, any civil conspiracy claim predicated on allegations that these defendants (City of Selma, Chief Riley, Officer Williams) failed to conduct an adequate investigation suffers from an insuperable logical defect because the record unequivocally shows that the Alabama Bureau of Investigation ("ABI") assumed responsibility for investigating the Shaw shooting
For any state-law claims not addressed on the merits supra (such as the wrongful death, negligence and wantonness claims), and for any state-law claims asserted against Officer Williams that may be otherwise cognizable and supported by evidence in the record, entry of summary judgment in Officer Williams' favor remains appropriate pursuant to the doctrine of state-agent immunity.
An Alabama statute provides that "[e]very peace officer ... shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties." Ala. Code § 6-5-338(a). Acts performed within an officer's discretionary functions are those "as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Sheth v. Webster, 145 F.3d 1231, 1239 (11
Because Officer Williams was performing discretionary acts, he is entitled to state-agent immunity unless plaintiff shows "sufficient `bad intent' — willfulness, malice, fraud, bad faith, actions beyond authority, or actions taken under a mistaken interpretation of law." Grider, 618 F.3d at 1268; see also Ex parte Mason, 146 So.3d 9, 12 (Ala. 2013) (if state agent shows that claims arise from a function entitling state agent to immunity, "the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority"). Plaintiff posits that Officer Williams' immunity is erased by "his failure to discharge his duties pursuant to detailed rules and regulations, his acting beyond his authority in pursuing a misdemeanor suspect, and his acting willfully, maliciously and in bad faith in shooting the decedent." (Doc. 21, at 20.) None of these assertions can withstand scrutiny.
Without question, "[a] State agent acts beyond authority and is therefore not immune when he or she fails to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist." Mason, 146 So.3d at 12-13 (citations and internal marks omitted). The critical distinction is whether those rules or regulations "must be followed by an officer" or whether they are simply guidelines (in which case immunity remains intact). Ex parte Brown, 182 So.3d 495, 506 (Ala. 2015). The uncontroverted record evidence shows no failure by Officer Williams to abide by detailed rules or regulations. As a matter of the Selma Police Department's written policy, Officer Williams was authorized to use deadly force "in order to... protect the officer or others from what is reasonably believed to be an immediate threat of death or serious bodily harm." (Doc. 13, Exh. 3, § 3.11.19(1)(a).) As analyzed in great detail supra, at the moment he fired his weapon, Officer Williams reasonably believed it was necessary to do so to protect himself from an immediate threat of death or serious bodily harm (i.e., Shaw coming after him at close range armed with a hatchet). Thus, his conduct was fully compliant with departmental policy. Any suggestion that Officer Williams violated "detailed rules or regulations, such as those stated on a checklist" in his use of deadly force is devoid of evidentiary support.
In sum, the Court concludes that state-agent immunity protects Officer Williams from liability for all state-law claims and causes of action asserted herein. See Davidson v. City of Opelika, 675 Fed. Appx. 955, 960, 2017 WL 164315, *4 (11
Finally, plaintiff seeks to hold the City of Selma "liable for the negligent, careless, or unskillful acts of its agent officers" under Alabama law. (Doc. 21, at 21.) By statute, Alabama municipalities may be held liable on a theory of respondeat superior for any "injury or wrong ... done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty." Ala. Code § 11-47-190. The most immediate defect with this line of reasoning is that the Court has already concluded that Officer Williams is entitled to state-agent immunity pursuant to Alabama Code § 6-5-338(a) for the wrongs that plaintiff contends were the product of Officer Williams' neglect, carelessness or unskillfulness. Because Officer Williams is immune, the City of Selma is likewise immune. See, e.g., Harris, 216 So.3d at 1216, 2016 WL 4204837, at *12 ("to the extent that we have concluded above that Harris was entitled to State-agent immunity, the Town would also be immune from suit"); Ex parte Dixon, 55 So.3d 1171, 1179 (Ala. 2010) ("It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is also immune.") (citations omitted); Ala. Code § 6-5-338(b) ("This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers."). The City of Selma enjoys immunity from plaintiff's state-law claims asserted against it on a theory of respondeat superior for the purported neglect, carelessness or unskillfulness of Officer Williams.
For all of the foregoing reasons, it is
DONE and ORDERED this 15th day of March, 2017.