Ford v. City of Goodwater, Alabama et al

Filing 63

OPINION AND ORDER directing that defendant Jonathan Pitts's motion for summary judgment (Doc. No. 18 ) is denied as to the state-law assault and battery claim, but granted as to all other claims; the state-law assault and battery claim against defendant Pitts will go to trial; further ORDERED that defendant City of Goodwater's motion for summary judgment (Doc. No. 17 ) is denied as to the state-law negligent-hiring claim, but granted as to all other claims; the state-law negligent-hiring claim against defendant City of Goodwater will go to trial; the court retains supplemental jurisdiction over the case. Signed by Honorable Judge Myron H. Thompson on 1/6/14. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

BRIAN KEITH FORD,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF GOODWATER and
JONATHAN PITTS,
Defendants.

CIVIL ACTION NO.
2:12cv1094-MHT
(WO)

OPINION AND ORDER
Defendant

Jonathan

Pitts,

a

police

officer

for

defendant City of Goodwater, Alabama, shot plaintiff Brian
Keith Ford, causing him serious physical and psychological
harm.

Relying on 42 U.S.C. § 1983, Ford sued Officer

Pitts and the city asserting that Pitts violated his
Fourth Amendment right against the use of excessive force
and that the city failed to screen Pitts sufficiently
before hiring him; he also asserts several state-law tort
claims against both defendants.

Jurisdiction is properly

invoked pursuant to 28 U.S.C. § 1331 (federal question)
and § 1367 (supplemental).

This case is now before the court on the motions for
summary judgment filed by Officer Pitts and by the City of
Goodwater.

For the reasons discussed below, the motions

will be partially granted and partially denied.

I. LEGAL STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment 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.”
Fed. R. Civ. P. 56(a).

II. BACKGROUND
Ford went to the Goodwater Municipal Court to contest
a

misdemeanor

charge

of

harassment,

but

before

afternoon was over, Officer Pitts had shot him.
witnesses

to

the

intervening

2

events

offer

the
The

differing

accounts of what happened in the courtroom.
in

the

proceedings,

the

court

credibility of the various stories.

may

At this stage

not

weigh

the

Instead, the court

must view the facts in the light most favorable to Ford,
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986), but with one exception: the
court may adopt testimony contrary to Ford’s where that
part of Ford’s testimony is “blatantly contradicted by the
record, so that no reasonable jury could believe it.”
Scott v. Harris, 550 U.S. 372, 380 (2007).

A.
On the day in question, Ford’s mobility was limited.
Approximately one month earlier, he had broken his hip in
a car accident.

His doctor told him not to walk, and he

was supposed to use a walker for three months.

However,

because the Goodwater City courthouse has a number of
stairs at the entrance, he used a pair of crutches to get
to get into court and assist him with walking.

3

Ford came to court with his then-fiancée to stand
trial for a misdemeanor charge of verbal harassment.

When

his

came

case

forward.

was

called,

Ford

and

the

complainant

According to Ford, the exchange between him and

the trial judge was as follows:

The judge launched

directly into the substance of the case; he did not give
Ford

the

opportunity

to

request

a

court-appointed

attorney, despite the fact that such an attorney was
standing in the courtroom; the judge first asked the
complainant to describe the harassment that she alleged;
he then asked Ford for his side of the story, and Ford
entirely denied that the incident had occurred; however,
soon after Ford began talking, the judge cut him off.
The judge found Ford to be guilty and sentenced him to
a fine of $ 808 (including costs) or 30 days imprisonment
if he could not immediately pay the fine.

At this point,

according to Ford, Ford asked for an attorney and asked
for permission to go to the gallery to get cash from his
fiancée so that he could pay the fine, but the judge

4

became impatient and refused to allow Ford to get the
cash.

Since Ford was not immediately able to pay the

fine, the judge instructed him to sit along the wall of
the

courtroom

imprisoned.

with

other

defendants

who

were

to

be

Ford began to walk toward the chairs.

At this point, Ford became emotional.

He was anxious

that he would not receive adequate medical treatment for
his broken hip while he was in jail and upset that he
would be separated from his young daughter.

He slammed

one of his crutches on the ground and turned back to the
center of the courtroom.

He began to plead with the judge

that he was innocent and deserved a fair trial and a
lawyer:
“I said, man, I said, you're locking me
up for something I didn't do. You won't
even give me a chance to get a lawyer.
I
say,
you're
violating
my
constitutional rights. I said, I know
the law; you know, this is not my first
rodeo.
I know that I can have an
attorney present and you just can't
sentence me and give me 30 days in
jail.”

5

Ford Dep. (Doc. No. 17-1) at 106:3-11. In his excitement,
Ford gestured with one of his crutches and dropped the
other crutch.

He then tucked the crutch he continued to

hold under his arm and began to limp toward the judge.
Pitts was the security officer in the court that day.
At this point, Officer Pitts approached Ford and put his
hand on Ford’s shoulder. Pitts said, “come on, Ford,
you’re going to jail; let’s just get this over with.” Ford
Dep. (Doc. No. 17-1) at 110:12-13.

Ford shrugged his

shoulder away from Ford’s hand, saying, “no, I’m not going
to jail for something I didn’t do.” Id. at 110:19-20.

At

this point, Pitts backed away from Ford and pulled out his
gun.

Although Pitts was carrying a taser, he chose not

to use it.1

1. In a filing styled as a motion to strike (doc. no.
29), Officer Pitts suggests that the court should ignore
witness testimony that he had a taser because recognition
that an object was a taser would be an expert opinion and
the witnesses were not “qualified to determine the
identity of a taser.” Mot. to Strike (doc. no. 29) at 3.
Even accepting Pitts’s characterization that identifying
a taser would be opinion evidence, it is not an opinion
based on “scientific, technical, or other specialized
(continued...)

6

Ford

continued

to

approach

the

bench,

making

statements like, “I’m tired of this shit.” Id. at 116:2.
At this point, the trial judge “was getting loud and
confrontational with ... Ford.” Simpson Aff. (Doc. No. 264) at 2.
Suddenly, the trial judge pulled a gun out from
behind

the

bench

and

pointed

it

continued to approach the bench.

at

Ford,

but

Ford

When he reached the

bench, he dropped his second crutch and grabbed onto the
bench to hold himself up.

Ford said, “Oh, you gone shoot

me now?” Simpson Aff. (Doc. No. 26-4) at 1; Ford Dep.
(Doc. No. 17-1) at 121:1-3.

Ford continued to ask the

judge to reconsider his verdict, arguing that he had not
received a fair hearing and was entitled to a lawyer.

As

Ford talked, the judge moved the gun so that it was no

(...continued)

knowledge.”
Fed.
sufficiently common
of the weapon might
fact, familiar with

R.
Evid.
701(c).
Tasers
are
that a lay witness’s identification
be admissible if the witness is, in
tasers.
7

longer pointing at Ford.

But, throughout Ford’s time at

the bench, he was within close proximity to the gun.
At this point, Officer Pitts was behind Ford with a
gun pointed at him.

Pitts ordered Ford to get on the

ground, but Ford was not able to move to the ground
because of his broken hip.

Ford looked back at Pitts and

saw that Pitts was moving side to side with a gun pointed
at him.
After Ford did not get on the ground, Officer Pitts
fired two shots at Ford.

One shot went through his left

side and came out the right side of his stomach.

The

other shot went in his back and also went out the right
side of his stomach. One of these shots also went through

8

his hand.2

After the second shot, Ford collapsed to the

ground.
Ford

experienced

significant

psychological injury from the shooting.

physical

and

He lost one of

his kidneys and part of his liver, and his other kidney
is having difficulty functioning.

The nerves in his left

hand are damaged, so that he no longer has feeling in two
of his fingers and cannot extend those fingers.
digestive issues.

He has

He was diagnosed with Post-Traumatic

Stress Disorder, and he has developed delusions and aural

2. In his testimony, Ford says that he was shot a
third time, while he was on the ground and that this was
the shot that went through his hand. However, a forensic
examination of the site by the Alabama Bureau of
Investigation uncovered only two bullets and casings.
Furthermore, all of the other witnesses, including Ford’s
affidavit witnesses, testify that Pitts fired two shots.
Taken together, this evidence “utterly discredit[s]”
Ford’s testimony that he was shot a third time. See
Morton v. Kirkwood, 707 F.3d 1276, 1285 (11th Cir. 2013)
(finding that plaintiff’s testimony can be ignored at
summary judgment when the forensic evidence “utterly
discredit[s]” the plaintiff’s account of events). This
is not to say that the court necessarily believes that
Ford is lying about the third shot, but rather that he
may incorrectly remember the traumatic events of that
day.
9

hallucinations of gun shots. When he is around loud sounds
or bald white men, who resemble Pitts, he becomes very
afraid.

B.
The City of Goodwater hired Officer Pitts in late
2010. The mayor and city council are responsible for
hiring police officers.

At the time Pitts was hired, the

city clerk collected applications and performed a criminal
background check on each applicant. The clerk then passed
the application and background check results to the mayor
and council. The city performed no other reference checks
as part of the hiring process, and the police chief was
not consulted during the process.3

After an interview

3. The police chief testified:
“Q: So did you see the application at
all before the mayor made that decision
[to hire Pitts]?
“A: The--not at the council meeting. I
was able to look at his driver’s license
and the front page of the application
(continued...)

10

with the mayor and a committee of the council, the council
voted to authorize the mayor to hire Pitts, and he did.
Several of Pitts’s previous employers had criticized
and disciplined him for excessive force and overreactions
to criminal defendants and inmates.

When he was a

correctional officer for Tallapoosa County, Alabama, he
was

reprimanded

for

“angry

outbursts

with

inmates.”

Tallapoosa Cnty. Records (Doc. No. 40-4) at 1.

As a

police officer for the Town of Camp Hill, Alabama, he was
sued for excessive force while handcuffing a defendant.
Finally, Pitts was fired from his position as a
police officer with Bay Minette, Alabama, due to his use
of force.

A criminal defendant becam agitated in the

backseat of his police cruiser, where she was secure and
did not present a danger to an officer or others.

Pitts

“took it upon himself to open the back door of the patrol
car

and

drag

the

prisoner

out

by

the

(...continued)

the night of--that he was hired.”
Whetstone Dep. (Doc. No. 40-2) at 15:17-22.
11

neck

while

handcuffed; threw her on the pavement causing scratches
and bruises to the prisoner knees and elbows.” Bay Minette
Personnel File (Doc. No. 40-5) at 1.
Pitts had previously been ordered to take anger
management classes after other incidents.
The City of Goodwater knew nothing about Officer
Pitts’s previous employment when it hired him.

C.
Officer Pitts also had a history of involvement with
Ford, both before and during his employment by the City
of Goodwater.

Pitts and Ford first met while Ford was

incarcerated at the Tallapoosa County Jail. They got into
several arguments and verbal disagreements while Ford was
incarcerated, and Ford believes that Pitts singled him out
for punishment.

Later, when Pitts was an officer for the

Town of Camp Hill and City of Goodwater, he pulled Ford
over frequently and arrested him for several charges which
were later dismissed.

As a Goodwater police officer, he

12

would ride by Ford’s house slowly in a threatening manner
and follow Ford while he was driving.

III. DISCUSSION
A. Claims Against Pitts
1. § 1983: Excessive Force
Ford claims that, when Officer Pitts shot him, he
violated his Fourth Amendment right, as enforced by 42
U.S.C. § 1983, against the use of excessive force.4 Pitts
raises the defense of qualified immunity.
“[G]overnment

officials

performing

discretionary

functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a

4. In his complaint, Ford also pled that Pitts had
violated his Fourteenth Amendment right to due process.
However, he seems to have abandoned this claim. That
abandonment was wise, because Ford’s case sounds solely
in the Fourth Amendment. See Carr v. Tatangelo, 338 F.3d
1259, 1267 & n.15 (11th Cir. 2003) (plaintiff who was
shot by police officer could maintain only a Fourth
Amendment claim, while plaintiff who was not physically
injured during the shooting could maintain only a
Fourteenth Amendment substantive-due-process claim).
13

reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).

Since there is no dispute in

this case that Officer Pitts was acting within the scope
of his discretionary function when he shot Ford, the court
must address two questions:

Did Pitts violate Ford’s

constitutional right against excessive force? And, if so,
was it clearly established at the time of the shooting
that

the

answering

constitution
these

prohibited

questions,

Ford

such
bears

an

act?5

In

the

burden

of

showing qualified immunity is inappropriate.

Terrell v.

Smith, 668 F.3d 1244, 1250 (11th Cir. 2012).
“[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

5. In Pearson v. Callahan, 555 U.S. 223 (2009), the
Supreme Court held that a court does not necessarily need
to address the question of whether a constitutional
violation occurred if it holds that the right was not
clearly established. Id. at 236. Nonetheless, the court
retains the discretion to do so.
It is particularly
appropriate to address the presence of a constitutional
violation in this case, because there is also a question
of whether the City of Goodwater should be held liable
for any constitutional violation.
14

(1985). The court must “look at the fact pattern from the
perspective of a reasonable officer on the scene with
knowledge of the attendant circumstances and facts, and
balance the risk of bodily harm to the suspect against the
gravity of the threat the officer sought to eliminate.”
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir.
2009). The court must resist the temptation to indulge in
“the 20/20 vision of hindsight” and instead “allow[] 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.” Graham v.
Connor, 490 U.S. 386, 397 (1989).

The court also may not

inquire into the actual motivations for the use of force;
the only appropriate question is whether a reasonable
officer could have made the same decision. Whren v. United
States, 517 U.S. 806, 813 (1996)(holding that racial bias
cannot be considered during Fourth Amendment review of a
traffic stop). Therefore, although Ford presents evidence

15

that Officer Pitts had improper motives for shooting him,
the court cannot take those motives into account on the
constitutional claim.
A police officer may constitutionally use deadly
force when the officer “(1) has probable cause to believe
that the suspect poses a threat of serious physical harm,
either to the officer or to others ... (2) reasonably
believes that the use of deadly force was necessary to
prevent escape; and (3) has given some warning about the
possible use of deadly force, if feasible.” Morton v.
Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (quoting
Vaughan v. Cox, 343 F.3d 1323, 1329-30 (11th Cir. 2003)).
While these factors can be helpful, the court “must still
slosh

[its]

way

through

the

factbound

morass

of

‘reasonableness.’” Morton, 707 F.3d at 1281 (quoting Scott
v. Harris, 550 U.S. 372, 383 (2007)).
Even accepting Ford’s side of the story, the court
cannot find that Officer Pitts’s use of deadly force, by
pulling the trigger, was unreasonable.

16

Ford was visibly

agitated, and, even if he did not actually have his hand
on the trial judge’s gun (as Pitts maintains he did), he
was within easy reaching distance of a firearm.

He

therefore presented a serious danger to the officer and
all of the other people in the courtroom.

A reasonable

officer could therefore believe that deadly force was
necessary to protect the judge and others within the
courtroom.

“[T]he law does not require officers in a

tense and dangerous situation to wait until the moment a
suspect uses a deadly weapon to act to stop the suspect.”
Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007).6

6. To be sure, at oral argument Ford contended that
the judge, not he, was responsible for the gun’s presence
on the bench. Regardless as to whether it is prudent for
a judge, who may not be specifically trained in the use
of deadly force to protect the public and public
officials, to have a gun in a courtroom (for, as it can
be reasonably argued from the evidence here, there is a
strong possibility that the gun could be used against the
judge), the critical fact remains that Officer Pitts was
not responsible the gun’s presence on the bench, and thus
the court remains convinced that a police officer,
confronted with these circumstances, could reasonably
believe that deadly force was necessary to protect the
judge and others within the courtroom.
17

Furthermore, Pitts verbally commanded Ford to get down
before he pulled the trigger.
Since the court does not find that Officer Pitts
violated Ford’s constitutional rights, there is no need to
address

the

immunity.

clearly

established

prong

of

qualified

Pitts is entitled to qualified immunity on

Ford’s § 1983 claim.

2. State-Law Claims
In addition to his § 1983 claim against Officer
Pitts, Ford also brings claims of negligence, wantonness,
assault and battery, and false-arrest against him.

Pitts

responds that these claims are barred by state-agent
immunity under the 1975 Ala. Code § 6-5-338 and Ex Parte
Cranman, 792 So. 2d 392, 405 (Ala. 2000).

The Alabama

Supreme Court has held that the immunity provided to peace
officers under the statutory and common-law schemes are
coextensive. Hollis v. City of Brighton, 950 So.2d 300,
309 (Ala. 2004).

18

State-agent

immunity

shields

a

law-enforcement

officer from suit “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.” 1975 Ala.
Code § 6-5-338.
immune

from

capacity

...

However, “a State agent shall not be

civil
when

liability
the

in

State

his
agent

or

her

acts

personal

willfully,

maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law.”
Hollis, 950 So. 2d at 307.

Thus, where federal qualified

immunity is merely an objective test, Alabama state-agent
immunity looks through to the officer’s actual motives in
taking an action.
State-agent

immunity

would

protect

Pitts

from

liability for negligence and wantonness claims. Negligent
actions could not, by definition, have been willful or
malicious.
by

Similarly, Pitts’s wantonness claim is barred

state-agent

immunity:

“poor

judgment

or

wanton

misconduct, an aggravated form of negligence, does not

19

rise

to

the

level

of

willfulness

and

maliciousness

necessary to put the State agent beyond the immunity
recognized in Cranman.” Ex parte Randall, 971 So. 2d 652,
664 (Ala. 2007).
Ford’s false-arrest claim must fail as well.

He

claimed that Officer Pitts “rendered him unable to leave”
by

shooting

imprisonment.
No. 26) at 15.

him,

constituting

false

arrest

or

Resp. to Pitts’s Mot. For Summ. J. (Doc.
At the time that Ford was shot, he was

lawfully in state custody following the judge’s verdict
and sentence for his harassment charge. “When considering
whether an arrest is valid [for a false-arrest claim], a
police

officer's

subjective

intent

is

immaterial.”

Carruth v. Barker, 454 So. 2d 539, 540 (Ala. 1984).
Probable cause provides sufficient justification under
Alabama law to defeat false-arrest claims. Walker v. City
of Huntsville, 62 So. 3d 474, 493 (Ala. 2010).

When the

officer already has lawful custody of the plaintiff, there
can

be

no

ground

to

claim

20

that

the

plaintiff

was

additionally falsely arrested or imprisoned. Furthermore,
Ford’s purported false-arrest claim would overlap entirely
with his assault and battery claim.

For these reasons,

summary judgment will be granted as to the false-arrest
claim.
However, the court will not grant summary judgment on
the assault and battery claim.

Ford does raise a genuine

question of material fact as to whether Officer Pitts’s
actual motive in shooting him was willful, malicious, or
in bad faith. See Cranman, 792 So. 2d at 405.
forward

several

ways

in

which

Pitts

improperly motivated to shoot him.

may

Ford puts
have

been

Ford discusses a

years-long animosity between himself and Pitts that dates
back to Ford’s incarceration in the Tallapoosa County
Jail.

Alternatively, Pitts could have been expressing an

inappropriate and bad-faith desire to punish (with deadly
force) behavior that he perceived to be insolent.
If, as Ford argues, Officer Pitts had a taser as well
as a gun, that also raises questions about Pitts’s motive.

21

When Ford started to walk around the courtroom gesturing
with his crutch, Pitts approached him to try to calm him
down and escort him back to his seat.

Pitts put his hand

on Ford’s arm or shoulder, and Ford evaded Pitts’s grip.
At this point, before anyone knew that the judge had a
gun, Pitts backed away from Ford and prepared to shoot
him.

This chronology is supported by the trial judge’s

deposition testimony: “After Pitts had done pulled his
pistol, I grabbed mine.” Teel Dep. (Doc. No. 17-2) at
12:14-15.

Under this scenario, it could be reasonably

argued that Pitts was ready to shoot Ford before the judge
took out his gun, even though he had the option of using
his taser, a non-deadly weapon. Fils v. City of Aventura,
647 F.3d 1272, 1276 n.2 (11th Cir. 2011). Nonetheless, he
chose to use deadly force on Ford.

If Pitts’s actions

were improperly motivated, Ford would have a claim for
assault and battery.
For these reasons, Ford’s assault and battery claim
will go forward.

However, summary judgment will be

22

granted against him on his negligence, wantonness, and
false-arrest claims against Pitts.

B. Claims Against the City of Goodwater
1. § 1983: Municipal Liability
Ford seeks to hold the City of Goodwater liable for
its failure to investigate Officer Pitts’s background
before hiring him, as well as for its failures to train
and supervise him.
In order to prevail on the failure-to-screen claim,
Ford “must demonstrate that the municipal hiring decision
reflects

deliberate

indifference

to

the

risk

that

a

violation of a particular constitutional or statutory
right will follow the decision.” Griffin v. City of OpaLocka, 261 F.3d 1295, 1313 (11th Cir. 2001) (citing Board
of County Commissioners of Bryan County, Oklahoma v.
Brown, 520 U.S. 397, 411 (1997)).7

Similarly, for the

7. In the briefs, both parties seem to discuss this
claim as though evidence of a policy or custom beyond the
hiring of Pitts is necessary to establish municipal
(continued...)

23

failure-to-train-and-supervise claims, Ford “must show
that his constitutional rights were violated.” McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

Since Pitts

did not violate Ford’s federal constitutional or statutory
rights, the city cannot be held liable under § 1983 for
failure to screen, train, or supervise him.

2. State-Law Claims
Finally, Ford presents state-law claims against the
city: a respondeat-superior claim for Officer Pitts’s

(...continued)

liability. While this is often true, “a municipality may
be liable under § 1983 for a single decision by its
properly constituted legislative body ... [or] other
officials ‘whose acts or edicts may fairly be said to
represent official policy.’” Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986) (quoting Monell v.
Dept. of Social Services, 436 U.S. 658, 694 (1978)).
This rule encompasses hiring decisions made by an officer
with “final authority to act for the municipality in
hiring matters.” Brown, 520 U.S. at 408. The mayor and
city council jointly hired Pitts, and the city has
presented no evidence that these officials did not have
final authority to hire.
As a result, the hiring of
Pitts itself was an act of the municipality qua
municipality, allowing for liability if Ford can show
sufficient causation.
24

actions and claims for negligent hiring, training, and
supervision of Pitts.
Two statutes combine to preclude respondeat-superior
liability for Pitts’s actions. First, cities are liable
for the acts of an employee, such as Pitts, only if the
“injury or wrong was done or suffered through the neglect,
carelessness, or unskillfulness” of the employee. 1975
Ala. Code § 11-47-190. However, “[i]t 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.”
3d at 298.

Montgomery, 99 So.

Section 6-5-338(a) bars a negligence claim

against a police officer unless state or federal law or
regulations
“beyond

his

“require
or

her

otherwise”

or

the

authority

or

under

officer
a

acts

mistaken

interpretation of the law.” Hollis, 950 So. 2d at 307.
Pitts does not fall within either of these categories; if
he is liable for Ford’s injuries, it is because he was
improperly motivated.

One statute bars all claims except

25

negligence claims and the other bars nearly all negligence
claims arising out of police-officer behavior.

Since

Ford’s claim does not fit through the narrow gap left
between

the

statutes,

the

court

will

grant

summary

judgment on his respondeat-superior claim.
Similarly, Ford cannot present viable claims for
negligent training and supervision. Pitts was trained and
supervised within the Goodwater Police Department by other
police officers and the police chief.

These other law-

enforcement officials are state agents under § 6-5-338.
Furthermore, the Alabama Supreme Court has held that
training and supervision are discretionary functions and
thus fall within the scope of state-agent immunity. Ex
parte City of Montgomery, 99 So. 3d 282, 299 (Ala. 2012).
Therefore,

Ford’s

training

and

supervision

claims

encounter the same problem as his respondeat-superior
claim.

Under § 11-47-190, the city would be liable for

only the negligent acts of the chief and other officers in
training and supervising Pitts, but under § 6-5-338(b) the

26

city

is

immune

from

suit

for

nearly

all

claims

of

negligence by those individuals. Ford’s claims are barred
by these statutes.
Nonetheless,

one

claim

negligent-hiring claim.

remains

viable:

Ford’s

This court recently had cause to

examine a similar claim in Hughes v. City of Montgomery,
___ F. Supp. 2d ___, 2013 WL 5945078 (M.D. Ala. Nov. 6,
2013) (Thompson, J.).

In that case, the court noted that

a recent opinion from the Alabama Supreme Court “seems to
show that [negligent-hiring] claims may be viable against
municipalities under Alabama law.” Id. at *2 (citing
Montgomery, 99 So. 3d at 299); cf. Floyd v. Macon Cnty
Comm’n, 707 So. 2d 262 (Ala. Civ. App. 1997) (addressing
a

negligent

hiring

claim

sexual-harassment case).

against

a

county

in

a

In both Montgomery and Hughes,

the negligent-hiring claim was barred because the hiring
was

a

discretionary

activity

performed

by

a

law-

enforcement officer, entitling both the officer and the
city to § 6-5-338 state-agent immunity.

27

In this case,

however, Officer Pitts was hired by the city’s mayor and
council, with assistance from the city clerk.

The police

chief testified that he was not involved in the hiring
process at all.

Since neither the mayor, the clerk, nor

the council members are protected by § 6-5-338, the city
may be held liable for their negligent acts, including
acts of hiring, under § 11-47-190.
Furthermore,

there

is

sufficient

evidence

state-law negligent-hiring claim to go forward.

for

a

Alabama

law establishes two prerequisites to a negligent-hiring
claim, in order to ensure that a plaintiff’s injury was
proximately caused by the alleged negligence: a plaintiff
must show that the underlying conduct by the employee was
wrongful,

Flying

J

Fish

Farm

v.

Peoples

Bank

of

Greensboro, 12 So. 3d 1185, 1196 (Ala. 2008), and that the
wrongful conduct was undertaken “within the line and scope
of his employment,” Nash v. Segars, 682 So. 2d 1364, 1365
(Ala. Civ. App. 1996).

As illustrated by the excessive-

force analysis, Officer Pitts shot Ford in the line and

28

scope of his employment. Therefore, if a jury finds Pitts
liable for assault and battery, the evidence would satisfy
both requirements.
The city may then be held liable for negligent hiring
if the city “actually knew, or should have discovered in
the exercise of due diligence, that [Officer Pitts] was
likely to be abusive to” Ford and others like him. Sanders
v. Shoe Show, Inc., 778 So. 2d 820, 824 (Ala. Civ. App.
2000); see also Voyager Ins. Cos. v. Whitson, 867 So. 2d
1065, 1073 (Ala. 2003).

A jury could find that the City

of Goodwater should have discovered that Pitts was likely
to be abusive to people in Ford’s position.

The city did

not contact any of Pitts’s prior employers or obtain his
employment files.

The city merely performed a criminal

background check on Pitts and did not take any effort to
contact his previous employers.
the

city

acted

with

sufficient

The question of whether
due

diligence

before

putting Pitts in a position of authority with permission

29

to use lethal force is appropriately for the jury to
decide.
Had the city looked into Officer Pitts’s employment
history, it would have found several previous incidents in
which

he

overreacted

to

perceived

insolence

from

an

arrestee or criminal defendant, often using excessive
force. Most notably, it appears that Pitts was terminated
from the Bay Minette police department for using excessive
force on an arrestee who was already secured.
Minette

incident

occurred

after

Pitts

had

The Bay
received

warnings from his supervisors and had undergone angermanagement treatment.

While none of Pitts’s previous

incidents was as serious as the shooting of Ford, a jury
could

find

that

they

show

a

pattern

of

violent

overreaction that would predict Pitts’s fateful actions in
the courtroom.
The City of Goodwater argues that it would not have
learned

of

the

Bay

Minette

incident

even

if

it

had

performed a reference check on Officer Pitts. In support,

30

the city points to a letter in Pitts’s personnel file from
a lawyer representing him to Bay Minette, dated before
Pitts was hired by the city.

The letter states that Bay

Minette had provided information about Pitts’s violent
history to the Atmore Police Department when Pitts had
applied for a job there.

The letter goes on to argue that

such intentional disclosure of Pitts’s previous uses of
excessive force “violates the agreement between [Pitts and
Bay

Minette]

as

well

as

violates

employment

laws.”

Williams Letter (Doc. No. 41-1) at 2.
This letter alone cannot establish what Bay Minette
would have told Goodwater officials if they had performed
any sort of basic reference check.

In the first place,

the letter actually provides evidence against the city’s
position; it shows that Bay Minette had told another
employer

about

Pitts’s

previous

violent

behavior,

in

response to a reference check, mere months before the City
of Goodwater hired Pitts.

More importantly, the letter

merely presents an attorney’s interpretation of employment

31

law and of the purported termination agreement between
Pitts and the city.

There is no way to know from the

evidence provided whether the attorney’s interpretation of
the agreement is accurate and, therefore, what Bay Minette
could lawfully have told the City of Goodwater, had any
city official performed a reference check.
Ford has presented a genuine issue of material fact
on the negligent-hiring claim, and therefore the claim
should go forward to the jury.

C. Jurisdiction
While no party has raised the issue, the court notes
that,

since

dismissed,
jurisdiction

all
it

has

over

of

Ford’s
discretion

this

case.

federal
to
28

claims

decline
U.S.C.

will
to
§

be

retain
1367(c)

“describes the occasions on which a federal court may
exercise its discretion not to hear a supplemental claim
... despite the power of the court to hear such a claim.”

32

Palmer v. Hospital Auth. of Randolph Cnty., 22 F.3d 1559,
1566 (11th Cir. 1994) (emphasis in original):
“The district courts may decline to
exercise supplemental jurisdiction over
a claim ... if-(1) the claim raises a novel or complex
issue of State law,
(2) the claim substantially predominates
over the claim or claims over which the
district
court
has
original
jurisdiction,
(3) the district court has dismissed all
claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there
are
other
compelling
reasons
for
declining jurisdiction.”
28 U.S.C. § 1367(c). When one of these subsection (c)
prerequisites is present, the court’s discretion should be
guided by “judicial economy, convenience, fairness to the
parties, and whether all the claims would be expected to
be tried together.” Palmer, 22 F.3d at 1569 (citing United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).

33

In this case, judicial economy, convenience, and
fairness to the parties all weigh in favor of this court’s
retaining jurisdiction. The case originated in this court
and is less than a month away from trial; discovery is
complete; and the questions of fact for the jury are very
similar to those questions that would have been asked if
the federal claims remained.

To decline jurisdiction at

this point would be unnecessary formalism, lengthening the
amount of time before Ford can receive relief for his
injuries or Pitts and the city can clear their names.
The court will retain supplemental jurisdiction over
the case.
* * *
Accordingly, it is ORDERED that defendant Jonathan
Pitts’s motion for summary judgment (Doc. No. 18) is
denied as to the state-law assault and battery claim, but
granted as to all other claims. The state-law assault and
battery claim against defendant Pitts will go to trial.

34

It

is

further

ORDERED

that

defendant

City

of

Goodwater’s motion for summary judgment (Doc. No. 17) is
denied as to the state-law negligent-hiring claim, but
granted

as

to

all

other

claims.

The

state-law

negligent-hiring claim against defendant City of Goodwater
will go to trial.
The court retains supplemental jurisdiction over the
case.
DONE, this the 6th day of January, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE