Williford v. Birmingham, Alabama, City of et al

Filing 65

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/28/2012. (KAM, )

FILED
2012 Sep-30 PM 01:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELIZABETH W. McELROY, as )
Administratrix of the Estate of Reginald )
W. Osby,
)
)
Plaintiff,
)
)
v.
)
)
CITY OF BIRMINGHAM, )
ALABAMA; MATTHEW HUTCHINS, )
in his Official Capacity as an Agent for )
the City of Birmingham and in his )
individual capacity,
)
)
Defendants.
)

CASE NO. 2:09-CV-0246-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendants’ Motion for Summary
Judgment. (Doc. 30.)1 Plaintiff Elizabeth W. McElroy, as Administratrix of the Estate of
Reginald W. Osby, has sued the City of Birmingham and its police officer, Matthew
Hutchins, alleging violations of Mr. Osby’s Fourth Amendment rights and Fourteenth
Amendment/Equal Protection rights. She also alleges a state-law wrongful death claim.
These claims are based on the shooting death of Mr. Osby on October 12, 2008. Upon
consideration of the record, the submissions of the parties, the arguments of counsel, and the

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

relevant law, the court is of the opinion that defendants’ Motion for Summary Judgment,
(doc. 31), is due to be granted in part and denied in part.
I. SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate “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.”2 Fed. R. Civ. P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once
the moving party has met its burden, the non-moving party must go beyond the pleadings and
show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or

2

Effective December 1, 2010, Rule 56 was “revised to improve the procedures for
presenting and deciding summary-judgment motions.” Fed. R. Civ. P. 56 Advisory
Committee Notes.
Under this revision, “[s]ubdivision (a) carries forward the
summary-judgment standard expressed in former subdivision (c), changing only one
word-genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a
summary-judgment determination.” Id. The substance of Rule 56 is unchanged; therefore,
cases citing prior versions of Rule 56 remain applicable to the current rule.
2

(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state
that the non-moving party cannot meet its burden at trial”).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Id. at 249. “[C]ourts are required to view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing the [summary judgment]
motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc.,
369 U.S. 654, 655(1962) (per curiam)). Nevertheless, the non-moving party “need not be
given the benefit of every inference but only of every reasonable inference.” Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of
Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380
(“When opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.”).

3

III. STATEMENT OF FACTS3
Exhibit A to the Scheduling Order states, “All statements of fact must be supported
by specific reference to evidentiary submissions.” (Doc. 10, Ex. A at 3.) Also –
Any statements of fact that are disputed by the moving party must be followed
by a specific reference to those portions of the evidentiary record upon which
the disputation is based. All additional material facts set forth in the statement
required of the opposing parties will be deemed to be admitted for summary
judgment purposes unless controverted by the statement of the movant.
(Id. at 6 [original emphasis deleted].) “The court reserves the right sua sponte to strike any
statements of fact or responsive statements that fail to comply with these requirements.” (Id.
[original emphasis deleted].)
A number of defendants’ responses to plaintiff’s undisputed facts do not comply with
the court’s Exhibit A; therefore, these facts are deemed admitted for purposes of summary
judgment.
A. BACKGROUND
Defendant Matthew Hutchins is a Police Officer with the City of Birmingham Police
Department. He graduated from the Birmingham Police Academy in 2003. (Doc. 31, Ex.
1 at 9-12; id., Ex. 7 at 18.) After a month of training, Officer Hutchins was assigned to the
Patrol Division in the West Precinct. (Id., Ex. 1 at 11.)

3

The “facts” as stated herein and throughout this opinion may not be the actual facts.
As required for purposes of deciding the Motion for Summary Judgment, the facts and all
reasonable inferences therefrom are drawn in favor of the non-movant.
4

Officer Hutchins received training at the Police Academy on dealing with a person
with a mental illness and on the City’s Use-of-Force Policy. (Ex. 1 at 16, 156-57, 160-62,
224.) The City’s Use-of-Force Policy establishes and regulates the amount of force a
Birmingham police officer is allowed to use in various situations. (See doc. 31, Exs. 3 and
4.) The policy defines “lethal force” as “Physical force which is readily capable of causing
death or serious bodily injury,” and “any force which the officer believes could result in
serious injury or death.” (Id., Ex. 3 at §§ IB and IIF.) An officer’s justification for the use
of lethal force “must be limited to what reasonably appears to be the facts known or
perceived by the officer at the time he decides to use such force.” (Id. § VIIC.) A suspect
using a deadly weapon is a Level VI incident and allows the use of firearms by the police
officer. (Id., Ex. 3, §§ IIIF and IVF.)
Officer Hutchins was trained how and when to use a taser versus a firearm when
dealing with someone with a deadly weapon. (Id., Ex. 1 at 29, 32-35; id., Ex. 2.) The taser
is a Level IV Force weapon. (Id., Ex. 2 § IIA.) Because tasers do not always work properly,
Officer Hutchins was trained to use a firearm, not a taser, against persons who are armed
with a deadly weapon and are threatening deadly force against the officer or another person.
(Id., Ex. 1 at 33-34.) The policy states a taser is “an additional tool” and so it does not
replace firearms; it is used to control dangerous or violent people when deadly force does not
appear to be justified and/or necessary, or when there is a reasonable expectation that it is
unsafe for officers to approach within contact range of the subject. (Id., Ex. 2, § IIG.)

5

Hutchins testified that he is a Native American of the Echota Cherokee Tribe, but he
stated he was white on forms completed in his capacity as a police officer. (Doc. 31, Ex. 1
at 27, 37; id., Ex. 13; doc. 34, Exs. 3-7 and 58.)
B. PRIOR CALLS TO CITY’S POLICE DEPARTMENT BY CHRISTINE LEATH
The following facts are deemed undisputed:4
1. On June 19, [2008], Christine Leath[, the wife of decedent Reginald
Osby,] called the police about her 27-year-old schizophrenic son, Deron Cook,
not taking his medication and behaving violently. The dispatcher coded that
call as a “signal 78” (for mentally disturbed persons) and sent the police to her
residence. [(Doc. 34, Ex. 1 ¶¶ 2-3; id., Ex. 17; doc. 31, Ex. 10 at 69-71.)]
2. Subsequently, Deron went to Brookwood Hospital for three weeks
for treatment for mental illness, and Christine moved to 1917 Avenue J in
Ensley. [Doc. 34, Ex. 1 ¶ 4; id., Ex. 18.)]
3. After Deron’s hospital discharge, Christine called the police again
on August 5, 2008 about Deron’s erratic behavior relating to his mental illness,
and the police again responded to this signal 78 call. [(Id., Ex. 1 ¶ 5; id., Ex.
19.)]
4. Next, on September 26, 2008 Christine called the police yet again
about Deron being off his medication and behaving very aggressively due to
his mental illness, and the police again responded to this signal 78 call. [(Id.,
Ex. 1 ¶ 6; id., Ex. 14.)]
(Doc. 35 at 6.) The responding officer on these calls did not “flag” this residence in police
records to alert other officers to reoccurring problems with someone who is mentally ill at
this address. (Doc. 31, Ex. 7 at 16-17; doc. 34, Ex. 50 at 31.)

4

See, supra, pp. 3-4.
6

C.

EVENTS OF OCTOBER 12, 2008
The following faces are deemed undisputed:5
45. On Sunday October 12, 2008, Christine was cooking dinner at her
1917 Ave. J. home in Ensley AL while her husband, 59 year old Reginald
Osby, (“Osby”) the decedent in this case, was in the bedroom. [(Doc. 34, Ex.
1 ¶ 9.)]
46. Deron burst into the house in a rage. Although Christine had been
feeding Deron and at times allowing him to sleep at her home, Christine had
told Deron to leave because he had not been taking his mental illness
medication. [(Id. ¶¶ 8, 10.)]
47. When Christine told Deron to leave, Deron became aggressive
towards Christine, cursing and slapping her; therefore, Christine called the
police, yet again, on Deron. [(Id. ¶¶ 10-12.)]
48. Osby came out of the back room and Deron behaved aggressively
towards him. Christine’s 13 year old son, Reginald Cook, came into the house
and told Deron to leave his parents alone. Deron reacted by chasing Reginald,
grabbing him and stabbing him with a knife in the hand. [(Id. ¶¶ 14-17.)]
49. Osby stepped in to protect his son from Deron, and Deron started
trying to attack Osby, but others arrived to help, including Diontez Cook (age
14) and Jarvis Harris (age 17), and they managed to wrestle the knife from
Deron. [(Id. ¶¶ 20-22, 32.)]
50. Christine called the police again to find out where they were,
because the station is only a block and a half from her house. [(Id. ¶ 18.)]
51. In one of her calls to the police, Christine mentioned that Deron
was mentally ill, as she had done in her previous call to the police on the
previous occasions. However, the recordings of her calls are unclear, sound
altered, and omit her reference to Deron’s mental illness. [(Id. ¶ 19.)]

5

See, supra, pp. 3-4.
7

52. Meanwhile, Deron, had grabbed a fork and used it to stab Osby; the
autopsy report confirms Osby was stabbed with the fork. [(Id.; id., Ex. 2; id.,
Ex. 27 at 2.)]
53. Although Christine’s house (1917 Avenue J) falls outside their
regular beat, [(doc. 31, Ex. 11 at 53)], the dispatcher sent Hutchins and Mays
to Christine’s house at approximately 3:34 p.m. On this occasion, dispatch
coded the call as a signal 38, a domestic call. Officers Ryan and Barron, Unit
437, were also sent, but Hutchins and Mays arrived first. [(Id., Ex. 1 at 13-14;
id., Ex. 7 at 11; doc. 34, Ex. 13; id., Ex. 29.)]
54. Violent signal 38 calls require supervisory notification.[footnote]
[(Doc. 34, Ex. 13; id., Ex. 30 at 2.)]
[Footnote] Defendants’ expert, Cooley, testified he was an expert on
Defendants’ policies surrounding domestic disturbance calls and that
the dispatchers were not supposed to notify a supervisor about a
domestic disturbance call that involves potential violence; however,
upon being shown this policy requiring the supervisor to be notified,
Cooley changed his testimony and admitted that dispatch should have
notified the supervisor on the October 12, 2008 call at issue, but the
records indicates dispatch did not notify a supervisor until after the
shooting when the Officer, after the shooting, put in an emergency call
for supervision and all units. [(Doc. 31, Ex. 10 at 52-53; doc. 34, Ex.
30 at 2.)]
55. When Officers Hutchins and Mays pulled up to the house they
noticed a kid with a butcher knife standing in the doorway. [(Doc. 31, Ex. 1
at 97-99; id., Ex. 7 at 29.)]
56. As the Officers approached, the kid put down the knife inside the
house, and, according to Hutchins, the boy walked out onto the porch and
opened the door for the officers. [(Doc. 31, Ex. 1 at 99-100.)] Mays stated the
boy stayed inside and moved to the side as he and Hutchins entered the house.
[(Id. at 29-31.)]
(Doc. 35 at 15-17.)

8

Officer Hutchins had no knowledge of any earlier problems at this residence involving
Deron Cook or that Deron Cook suffered from a mental illness. (Doc. 31, Ex. 1 at 86, 172,
225.)
When Officers Hutchins and Mays arrived at the house, they heard yelling coming
from inside the house. (Id., Ex. 1 at 99-100; id., Ex. 7 at 29-30, 86, 100.) Although Officer
Mays testified that he announced, “Birmingham Police, upon entering the home, Ms. Leath
testified that the officers did not announce their presence. (Doc. 34, Ex. 1 ¶ 23.) For
purposes of summary judgment, the court assumes that Officer Mays did not announce,
“Birmingham Police.” Defendants also contend that their presence was obvious because they
were in uniform and their badges were displayed. However, the evidence indicates that Mr.
Osby had his back to the officers. (Doc. 31, Ex. 1 at 116; id. Ex. 7 at 31, 67-68.)
Ms. Leath testified that she told the officers her son, Deron, was responsible for the
altercation and that Deron was “retarded.” (Doc. 34, Ex. 1 ¶ 24; id., Ex. 10; doc. 31, Ex. 1
at 18, 87-88, 101-07, 179-80, 217; id., Ex. 7 at 31-32, 34-35, 39-43, 51, 68, 86.) Officer
Hutchins contends that he did not know which man was Deron Cook. (Doc. 31, Ex. 1 at 90.)
He testified that Deron Cook, who was 27 years old, looked older than Mr. Osby, who was
59. (Doc. 31, Ex. 1 at 117, 130-32, 218-19; doc. 34, Ex. 8 at 4.) Defendants’ expert, George
Cooley, testified that anyone could tell that Mr. Osby was older than Deron Cook. (Doc. 31,
Ex. 10; doc. 34, Ex. 9.)

9

The following facts are deemed undisputed:6
61. Mays did not follow Hutchins into the kitchen because he had
grabbed Christine’s arm to hold her back; in doing so, Mays stood behind the
wall separating the den from the kitchen, which blocked his view into the
kitchen, but Christine stood in the doorway and could see into the kitchen.
(Doc. 31, Ex. 1 at 116; id., Ex. 7 at 35-37, 41-42, 76, 85, 90-91; doc. 34, Ex.
10; id., Ex. 31; id., Ex. 32 at 5-6.)]
62. In his initial statement, Officer Mays noted the children were also
present, stating: “I’m getting extremely panic from the children and – right
there with the mother.” [(Doc. 31, Ex. 7 at 88; doc. 34, Ex. 32 at 5.)]
(Doc. 35 at 18.)
According to plaintiff, Deron Cook left the kitchen when the officers approached.
(Doc. 34-1 at 5; doc. 34-2 at 3).7 Officer Hutchins testified that he saw Osby with a weapon,
which he thought was a knife, and ordered him to drop it. Ms. Leath and Reginald Cook
both testified that Officer Hutchins did not give Osby any commands. (Doc. 34, Ex. 1 ¶ 27;
id., Ex. 2 ¶ 15.) Officer Mays testified that he heard Officer Hutchins say something to Osby,
but he could not hear what was said because Ms. Leath was screaming. Mr. Osby was
beginning to stand and put down the fork when Officer Hutchins shot him in the back. (Doc.

6

See, supra, pp. 3-4.

7

Reginald Cook’s Declaration states in part:

“Deron took off out and ran into the bathroom at [sic] that was attached to the
back side of the kitchen. My father was alone in the kitchen when Police
Officer shot him in the back. My father was not fighting with Deron or
anybody when the Police Officer shot him.”
(Doc. 34-2 at 3.)
10

34, Ex. 1 ¶ 28; id., Ex. 2 ¶¶ 13-14.) Officer Hutchins testified that he saw Mr. Osby look at
him before he fired, but Mr. Osby did not drop his weapon, a fork. (Doc. 31, Ex. 1 at 218.)
Officer Mays testified that Officer Hutchins fired less than one second after he heard Officer
Hutchins say something to Mr. Osby. [(EXs. 1, 2.)(Ex. 1 at 106-07, 124, 139-40, 144.) doc.
31, Ex. 7 at 38-39, 85.]
The City awarded Officer Hutchins a Combat Cross Award for shooting Mr. Osby.
(Doc. 34, Exs. 1-2, 26 at 5; doc. 31, Ex. 1 at 79-82; id., Ex. 9 at 85, 93-94.)
D.

HUTCHINS’S ALLEGED HISTORY OF RACIAL PROFILING AND USING
FORCE AGAINST BLACKS
The following facts are deemed undisputed:8
77. Hutchins has been the subject of a racial profiling complaint due
to a stop he did of a black man driving a nice car. The man, Willie J. Murphy,
submitted a statement indicating that “Officer Hutchins and his partner (have)
serious issues with the African American race (and they) . . . hate and despise
black people.” [(Doc. 34, Ex. 16.)]

78. However, [the City’s] combined report of complaints on Officer
Hutchins ignores the true nature of this racial profiling complaint and
summarizes the complaint only as: “Alleges [officer] was rude towards
him”.[footnote] [(Doc. 34, Ex. 16.)]
[Footnote]
The man filed a lawsuit, not mentioning race
discrimination, his attorney took no depositions and the case was
dismissed on Summary Judgment. [(Doc. 34, Ex. 38; doc. 31, Ex. 1 at
19-22, 47-48.)]

8

See, supra, pp. 3-4.
11

79. Hutchins now says he is Native American because each of his
parents were partial Native American;[footnote omitted] however, on the Use
of Force reports he signed, Hutchins indicates his race is white. According to
Sgt. Powrzanas, Officers fill out those forms. [(Doc. 31, Ex. 1 at 27, 37; doc.
34, Exs. 3-7; id., Ex. 28; id., Ex. 50 at 5-8.)]
...
81. Hutchins has a history of using force against African-Americans:
in February 2004 he tased a black male; in May 2005 he tased a black male;
in October 2006 he kneed a black male; in June 2007 he tased a black male;
in April 2007 he tased a black male; and in April 2009 he tased a black male.
[(Doc. 31, Ex. 1 at 35-37, 67-68, 73-74; id., Ex. 3; id., Ex. 7; id., Exs. 23-25;
id., Ex. 28.)
82. Hutchins could not identify or point to any record indicating he had
used force against a white male, but he volunteered in his deposition that he
had shot a white person’s dog. [(Doc. 31, Ex. 1 at 66-67, 71-72.)]
(Doc. 35 at 20-21.)
E.

CUSTOM AND/OR POLICY OF IGNORING BIRMINGHAM POLICE
DEPARTMENT POLICIES TO DOCUMENT, TO INFORM, AND TO
PREPARE OFFICERS WHEN DEALING WITH MENTALLY DISTURBED
PERSONS
The following facts are deemed admitted:9
5. The City’s policy for “Responding to Persons with Mental Illness,”
dated December 19, 2006, requires officers to “complete an incident report
after answering calls involving a mentally ill person”. [(Doc. 31, Ex. 9, Vol.
II at 16; doc. 34, Ex. 20 at 7.)]
6. When a Community Service Officer (CSO) is not called to the scene,
the Policy requires Officers to leave a copy of the incident report with the
CSO. [(Doc. 31, Ex. 9, Vol. II at 16; doc. 34, Ex. 20 at 7.)] The incident

9

See, supra, pp. 3-4.
12

report must first go to the supervisor for approval and coding, and then it goes
to the CSO. [(Doc. 31, Ex. 1 at 199-200.)]
7. The written incident report is required regardless of whether the
mentally ill person resides at the residence where the officers are called.
[(Doc. 31, Ex. 14 at 50-51.)]
8. Lt. [Carolyn] Lavender, the Officer in charge of communications,
confirmed that when an Officer responds to a call concerning a mentally
disturbed person, the Officer must complete a written report and “always
notify their Supervisor on a 78.” [(Doc. 31, Ex. 11 at 38.)]
9. The City’s policy requires a Patrol Supervisor to be sent to the signal
78 scene by dispatch or called to the scene by the Officer, if, upon arriving on
the scene, he or she realizes the person is mentally ill. When the supervisor
arrives he has several steps to complete. [(Doc. 34, Ex. 20 at 3; doc. 31, Ex.
9 at 37, Vol. II at 84-87.)]
1.

Requirement to Complete Written Incident Report and Notify Supervisor
Not Followed

10. It is the custom and de facto policy of the City to not prepare or file
incident reports on signal 78 calls or notify the supervisor. Indeed, in 2008,
Defendants had 790 Signal 78 calls (excluding K and L),[footnote] but
incident reports were not done 82% of the time, and Supervisors were not
notified 97% of the time.[footnote] [(Doc. 34, Ex. 53.)]
[Footnote:] Calls ending in disposition (K) or (L) involve an Officer
assisting, so that Officer does not do a report; that is one reason that not
all the 3,433 signal 78’s have incident reports. [(Id., Ex. 29; id., Ex. 49;
id., Ex. 53.)]
Footnote: Whenever Officers respond to signal 78 calls that turn out
to be something else, the dispatch log indicates the code change;
therefore, a comparison between the signal 78 dispatch reports and the
mentally disturbed person incident reports, a determination can be
reached indicating what percent of the signal 78 calls are actually
recorded onto incident reports, as Defendants’ policy directs its
Officers to do. [(Doc. 31, Ex. 9, Vol. II at 23-24.)]

13

11. Chief Roper and Lt. Lavender admitted that the policy requiring
incident reports and supervisor notification is not always followed. [(Doc. 31,
Ex. 9 at 67-68, 77; id., Ex. 11 at 43.)]
11.[sic] In the instant case, the supervisor over the beat where the
shooting occurred, Sgt. Powrzanas, was not notified about Christine’s
September 26th call regarding Deron (he was not the supervisor for the August
5th call), and he admitted the Officers on those calls should have called their
supervisors, filled out incident reports, and sent those reports to the CSO.
However, no incident report was done for either prior signal 78 call regarding
Deron. [(Doc. 34, Ex. 50 at 28-29, 35-36; 45-47, 57; id., Ex. 14; id., Ex. 52
at 21; doc. 31, Ex. 9 at 70.)]
2.

Failure to Notify Officers about Prior 78 Calls to Residence
Resulted in Officers Being Not Prepared on October 12, 2008

12. Although dispatchers have the capability to search prior calls from
a residence to see its history, it is the policy and practice of the City not to train
them how to do so. This is the practice for “no particular reason. It just takes
too much time” – a couple of minutes. [(Doc. 31, Ex. 11 at 17-18, 23-25, 10809; id., Ex. 10 at 57-58.)]
13. In this case, Officers Matthew Hutchins and Marvin Mays were
dispatched to a location off their regular beat, and the City has no policy or
procedure for updating Officers new to an area about the history of a residence
where they are sent. If the Officers wanted that information, it is available.
[(Doc. 31, Ex. 11 at 27-28.)]
14. In order for Officers to alert each other to a residence with
reoccurring problems with someone who is mentally ill, the officer or his
supervisor should complete out an alert form so that dispatch can “flag” the
residence. [(Doc. 31, Ex. 7 at 16-17; doc. 34, Ex. 50 at 31.)]
15. When a call comes in from a residence that has been flagged due
to prior calls regarding a mentally ill person at the address, information
regarding the person, including a physical and behavioral description, would
automatically pop up so the dispatcher can then promptly inform the
responding officer en route. [(Doc. 31, Ex. 11 at 35-36, 39-45; doc. 34, Ex. 52
at 103-04.)]

14

16. In order to get a residence flagged, the Officer on the scene must
fill out an alert form kept at the precinct or at police headquarters, give it to his
or her supervisor for approval and then send it to the dispatch center to be
inputted into the database. [(Doc. 31, Ex. 11 at 36-37; doc. 34, Ex. 52 at 7984.)
17. Documents produced by Defendants indicate Officers can also
directly notify dispatch of the need for a flag as shown by a dispatch report
stating “the OFCR observed several disturbing characteristics about this
subject and feels this house needs to be put on alert to prevent any danger to
the home owner or any officer.” [Doc. 34, Ex. 48.)] No such call was made
by any officer on the prior visits to the residence. [(Id.)]
18. Chief Roper and Lt. Lavender, who is in charge of dispatch,
confirmed that there is no policy or procedure governing when to flag events.
[(Doc. 31, Ex. 9 at 29-33; id., Ex. 11 at 36, 96-97, 109, 115; doc. 34 at 72-74,
84.)] However, Lavender testified that signal 78s are generally flagged, and
she admitted that Christine’s house should have been flagged with an alert
because of its repeated history of signal 78 calls. She could not explain why
it was not flagged. [(Doc. 31, Ex. 11 at 36, 96-97,109, 115.)]
19. Lt. Lavender testified that she would enter a flag on an address with
a prior signal 78, including a description of the mentally disturbed person and
his prior violent behavior in order to better prepare Officers for their next
encounter with that individual. [(Id. at 43-44.)]
20. Sgt. [Rodney] Powrzanas, the supervisor of the beat where
Christine’s house is located, reviewed the September 26, 2008 call (which
stated Deron was behaving very aggressively and not taking his medication),
and testified he would have “flagged” that residence in order to better prepare
Officers responding to future calls there. [(Doc. 34, Ex. 14; id., Ex. 50 at 32,
41-42, 49.)]
21. Sgt. Powrzanas did not know why the 78 call was not properly
recorded in an incident report, nor did he know why it was not flagged. He has
never asked his Officers why they failed to properly document the calls. [(id.,
Ex. 50 at 32-33.)]
22. Chief Roper does not know of any signal 78s that have been
flagged. [(Doc. 31, Ex. 9 at 29-33; doc. 34, Ex. 52 at 72-74, 84.)]
15

23. Roper testified that he would flag a residence “when it rises to a
certain level of criticality of violence,” but he does not know of any training
provided to officers on the requisite level of violence to warrant a flag. [(Doc.
34, Ex. 52 at 75.)]
24. The fact that mentally ill person does not reside at the residence in
question, does not affect whether the residence should be flagged. [(Id. at
76.)]
25. Lt. Lavender admitted the deficiency in the City’s policy on
informing officers about prior incidents with the mentally ill.[footnote omitted]
(Doc. 31, Ex. 11 at 82-83.)]
26. Chief Roper agreed it is always best for Officer to know the history
of the residence they are being called to. [Doc. 34, Ex. 52 at 100-01.)]
27. Neither Hutchins nor Mays had knowledge that anyone on the
scene was mentally ill. [(Doc. 31, Ex. 1 at 16; id., Ex. 7 at 103.)]
28. Before the shooting, neither Hutchins nor Mays knew that officers
had been sent the same address to deal with Deron in a mentally disturbed state
twice in the last two months. [(Id., Ex. 1 at 172-74, 190, 225; id., Ex. 7 at 12,
23-24, 99, 106.)]
29. Had Hutchins known that he would be dealing with a mentally ill
person, he would have called a supervisor as the policy directs. [(Id., Ex. 1 at
195.)]
30. Mays would have liked to have this information, because it is
helpful to know someone’s reasoning may not be normal. Had that residence
been flagged the dispatcher would have properly informed him. [(Id., Ex. 7
at 12, 23-24, 99, 106; doc. 34, Ex. 52 at 106-07.)]
3.

The Failure to Notify CSO about Prior Incidents and the General
Policy of Excluding CSO’s from Information Prevented CSO’s
Ability to Address Deron’s Needs and Find Him a Place to Live

31. Due to the de facto policy of Officers only completing incident
reports 18% of the time (discussed supra), CSO’s are only notified on 9% of

16

calls dealing with mentally disturbed persons despite the City policy requiring
them to be notified of all such calls. [(Doc. 34, Ex. 21; id., Ex. 53.)]
32. It is up to the Officer on the scene to notify the CSO. [(Doc. 11 at
61-62.)]
33. When the CSO receives referrals, they generally go out to the home
and talk with the mentally ill person and others involved, and if the mentally
ill person does not have a place to live, help him find one. [(Doc. 34, Ex. 51
at 42-43.)] The CSO must have a copy of the incident report to have the
mentally ill person committed to get help. [(Id. at 36-37.)]
34. Sgt. Powrzanas admitted the policy requiring all signal 78 incident
reports be submitted to the CSO was not and is not followed. [(Id., Ex. 50 at
37-38.)]
35. CSO Nolan also admitted that although policy requires officers to
complete an incident report so the CSO can determine whether the person at
issue poses a safety risk, that policy is not always followed. [(Id., Ex. 20 at 7;
id., Ex. 21 at 1-2; id, Ex. 51 at 29-33.)]
36. Chief Roper admitted a CSO should have been notified about the
most recent occasions [(August 5, 2008 and September 26, 2008)] where
Christine had called the police about Deron in a mentally disturbed state;
however, no CSO was notified. [(Id., Ex. 52 at 89.)]
37. The City denies CSO’s access to the data base that shows prior
incidents involving a particular mentally ill person at a specific residence.
[(Doc. 34, Ex. 51 at 47-48.)
38. When the CSO receives an incident report on a mentally ill person,
the CSO keeps the person’s file for a couple of months and then destroys it.
She does not have access the data to look into the prior history of that person;
rather, she must commit to memory the mentally ill individuals she encounters
and the services she provides them. Other CSO’s filling in for her or replacing
her have no method of knowing which mentally ill person she has dealt with
and what services she provided because they have no system of keeping up
with or sharing that information. [(Id. at 49-52.)]

17

39. One of the two CSO’s assigned to the area of the shooting, Nolan,
had not heard of Deron Cook or any incidents at the residence, and had the
other CSO dealt with Deron, Nolan would have known. [(Id. at 9, 19-20, 2930.)]

4.

Failure to Provide Documented Training to Officers on Dealing
with Mentally Ill or Flagging Addresses

40. Police Officers receive only perfunctory training at the police
academy regarding how to deal with the mentally ill or mentally disturbed.
[(Doc. 31, Ex. 9 at 40.)]
41. Although it is the policy to provide refresher training on how to
handle mentally disturbed persons every three years, the City offers no such
training. Refresher training is offered on other subjects, however. (Doc. 31,
Ex. 9 at 40-42, 83; doc. 34, Ex. 20 at 8; id., Ex. 52 at 16.)][footnote]
[Footnote]: Roper later said in the fall of 2005 they conducted
department training on responding to mentally ill, but he does not know
where the training was conducted, who attended and what subjects were
covered in that training. [(Doc. 34, Ex. 52 at 5-9.)]
42. Neither Officers Hutchins, Mays, Ryan, nor their supervisor, Sgt.
Powrzanas, had received any training on handling persons with mental illness
since they attended the academy, which, for Powrzanas, was 14 years ago.
[(Doc. 31, Ex. 1 at 16-17, 87, 176; id., Ex. 7 at 17-20; id., Ex. 14 at 52; doc.
34, Ex. 50 at 11-12, 39-40, 42-43.)]
43. Officers are not provided training on how to get an address flagged.
Officer Ryan testified he has received no training on how to get an address
flagged; he does not know how to get a residence flagged, where to get the
paperwork or where to send it. [(Doc. 31, Ex. 14 at 41-42.)]
44. Even if a residence is not flagged, Officers are able to check its
history by checking with the dispatcher or, if they know how to do that, check
the computers in their vehicles, but Sgt. Powrzanas (Hutchins’s supervisor)
does not know how to do this. [(Doc. 34, Ex. 50 at 50-51.)]
18

(Doc. 35 at 7-15 [emphasis in original].)

F.

CITY’S CUSTOM AND PRACTICE OF FAILING TO INVESTIGATE
OFFICER SHOOTINGS
The City has an agreement with the Alabama Bureau of Investigation [“ABI”] to

investigate all on-duty shootings of suspects by officers of the Birmingham Police
Department. (Doc. 31, Ex. 9 at 101, 110.)
The following facts are deemed undisputed:10
85. ABI “investigates the shooting from the standpoint of criminal law,
did [the Birmingham Police Department] violate State code . . . .” [(Doc. 31,
Ex. 9 at 110.)] According to that policy, the ABI does not render an opinion
or conclusion as to whether the shooting was justified; rather, the results of the
investigation are turned over to the District Attorney (“DA”), who determines
whether there has been a criminal law violation. [(Id. at 101; doc. 34, Ex. 35;
id., Ex. 52 at 30-33, 66.)]
86. Here, the DA’s letter indicates the DA is not going forward with
the case against Officer Hutchins because the DA would have to prove beyond
reasonable doubt that Hutchins committed a felony in killing Osby. The DA’s
letter does not indicate whether Hutchins violated any police policies. [(Doc.
31, Ex. 10 at 125; doc. 34, Ex. 36.)]
87. The City uses a Firearm Review Committee, (“FRC”) to conduct
an internal investigation of an officer’s shooting and to review facts
surrounding the incident to determine if the shooting was within department
policy. [(Doc. 34, Ex. 37; id., Ex. 52 at 34; doc. 31, Ex. 9 at 108-109, 111.)]
88. The FRC’s conclusion in fatal shootings relies on the ABI/DA’s
determination of whether there has been a criminal law violation. Chief Roper
and the City’s expert could not identify any occasion where the DA cleared an

10

See, supra, pp. 3-4.
19

Officer shooting of criminal wrongdoing, but the FRC found the shooting in
violation of policy. Chief Roper explained that it would be very difficult to
violate one and not the other. [(Doc. 34, Ex. 52 at 37-38; doc. 31, Ex. 10 at
126.)]
89. From 2004 to the present, anytime the FRC determined a policy had
been violated, ABI had no involvement in the investigation. [(Doc. 34, Ex. 52
at 52-60; id., Exs. 40-46.)]
90. Other than possibly talking to the Officers involved in the shooting,
the FRC does not interview other witnesses. [(Doc. 31, Ex. 9 at 109.)]
(Doc. 35 at 22-23.)
Although the ABI interviewed Ms. Leath and the FRC identified her as a witness, the
FRC report did not contain her statement or a summary of her statement. (Doc. 34, Ex. 37;
id., Ex. 52 at 24, 95-96, 126; doc. 31, Ex. 9 at 112-113.) The following facts are deemed
admitted:11
96. As is the custom and practice, the FRC waited for the DA to issues
its finding in order to rely on the DA’s determination in completing its own
report: on March 17, 2009, the DA finished its investigation and issued its
finding that Hutchins violated no criminal law; the FRC then came out with its
report on April 20, 2009, clearing Hutchins of any wrongdoing. [(Doc. 34, Ex.
52 at 32, 40-41, 45; id., Ex. 36.)]
97. Chief Roper admitted that in order to find that Hutchins shot Osby
to protect Deron from serious physical harm, he had to rely solely on
Hutchins’[s] version of events, because no other witness statement supported
that finding. [(Doc. 31, Ex. 9 at119.)]
98. Chief Roper has not read all the statements. [(Id. at 95.)]

11

See, supra, pp. 3-4.
20

99. Chief Roper admits that the evidence does not show that Mr. Osby
had threatened Officer Hutchins with a fork. [(Id. at 118-119.)]
100. If Hutchins shot Osby when he was not threatening anyone, then
the shooting would be a violation of policy. [(Id. at 121.)]
(Doc. 35 at 24-25.)
IV. DISCUSSION
Plaintiff’s Amended Complaint contains three claims: use of excessive force in
violation of Mr. Osby’s Fourth Amendment rights and violation of Mr. Osby’s rights under
the Equal Protection Clause of the Fourteenth Amendment, which are actionable pursuant
to 42 U.S.C. § 1983, and a claim of wrongful death pursuant to Alabama law. For the
reasons set forth below, the court finds that defendant’s Motion for Summary Judgment is
due to be granted as to plaintiffs’ claims against Officer Hutchins in his official capacity, her
excessive force claim against the City, and her equal protection claims against both
defendants; it is due to be denied as to her § 1983/excessive force claim against Officer
Hutchins in his individual capacity and her state-law wrongful death claim.
A. EXCESSIVE FORCE
In her Amended Complaint, plaintiff alleges that defendants used “excessive and
unreasonable” force against Mr. Osby in violation of his Fourth Amendment right to be free
from unreasonable seizure. (Doc. 14 ¶¶ 28-29.) Specifically, plaintiff contends that Officer
Hutchins shot Mr. Osby, who was unarmed and did not pose a threat to Officer Hutchins or

21

to any other person, in the back without warning and that this conduct was unreasonable.
Also, she claims the City’s policy and or custom, or lack thereof, caused Mr. Osby’s death.
1. Officer Hutchins
a. Official Capacity
Plaintiff has sued Officer Hutchins in his official capacity as an officer of the
Birmingham Police Department; she has also sued the City of Birmingham. In Kentucky v.
Graham, the Supreme Court clarified the distinction between a suit against an individual in
his personal capacity and a suit against that individual in his official capacity:
Personal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law. Official-capacity suits,
in contrast, generally represent only another way of pleading an action against
an entity of which an officer is an agent. As long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.
Graham, 473 U.S. 159, 166 (1985)(internal citations and quotations omitted). The Eleventh
Circuit has recognized this principle’s application to local government entities: “For liability
purposes, a suit against a public official in his official capacity is considered a suit against
the local government entity he represents.” Owens v. Fulton County, 877 F.2d 947, 951 n.5
(11th Cir.1989). When suit is also filed against the local government entity, the court should
dismiss the individual defendant in his official capacity as “redundant and possibly confusing
to the jury.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991).

22

In this case, the claims against Officer Hutchins in his official capacity are duplicative
of the claims against the City. Therefore, plaintiff’s claims against Officer Hutchins in his
official capacity are due to be dismissed.
Defendants’ Motion for Summary Judgment as to all claims against Officer Hutchins
in his official capacity will be granted.
b. Personal Capacity
Officer Hutchins contends that the § 1983 claims against him in his personal or
individual capacity are due to be dismissed on the basis of qualified immunity. (Doc. 2 ¶ 10.)
When government officials act in a way that knowingly violates a clearly
established statutory or constitutional right of which a reasonable person
would have known, they are not immune from suit and may be held liable for
the damage their actions caused. Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982). But when these same officials make decisions that do not knowingly
violate such rights, they are not required to defend themselves in a lawsuit
seeking damages. Id. They are “immune” from suit. Id. We call this defense
“qualified immunity” because the official is immune from a damage lawsuit,
qualified upon his ability to show that he did not knowingly violate the
plaintiff’s clearly established constitutional right. Id.
Ray v. Foltz, 370 F.3d 1079, 1081-82 (11th Cir. 2004). “Qualified immunity operates to
ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.”
Carr v. Tatangelo, 338 F.3d 1259, 1266 (11th Cir. 2003)(quoting Hope v. Pelzer, 536 U.S.
730, 739 (2002)(quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)))(internal citations and
quotations omitted.).
The Eleventh Circuit uses a two-step analysis to determine whether a public official
has qualified immunity: (1) the public official must establish that he was acting within the
23

scope of his discretion; and (2), if the public official establishes that he was acting within his
discretion, the plaintiff must show that the public official violated clearly established
statutory or constitutional law. Wood v. Kesler, 323 F.3d 872, 877-78 (11th Cir. 2003); Sims
v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir. 1992). For purposes of the §
1983 claims, the parties do not dispute that Officer Hutchins was acting within his discretion;
therefore, the issue for the court is whether his actions violated clearly established
constitutional law.
Whether Officer Hutchins’s actions violated clearly established constitutional law also
“consists of a two-part inquiry.” Harris v. Coweta County, Ga., 433 F.3d 807, 812 (11th Cir.
2005)(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
First we ask, “[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer's conduct violated a constitutional
right?” [Saucier, 533 U.S. at 201] If, assuming the plaintiff’s allegations were
true, no such right would have been violated, the analysis is complete.
However, if a constitutional violation can be made out on the plaintiff’s facts,
[the court] then must determine “whether, at the time of the incident, every
objectively reasonable police officer would have realized the acts violated
already clearly established federal law.” Garrett v. Athens-Clarke County, 378
F.3d 1274, 1278-79 (11th Cir. 2004)(citing Saucier, 533 U.S. at 201-02).
Id.
“The threshold inquiry a court must undertake in a qualified immunity analysis is
whether plaintiff's allegations, if true, establish a constitutional violation.” Hope, 536 U.S.

24

at 736.12 In a civil action brought pursuant to § 1983, the plaintiff bears the burden of
demonstrating a constitutional violation. Harris, 433 F.3d at 811(citing Lee v. Ferraro, 284
F.3d 1188, 1193-94 (11th Cir. 2002)); Kesler, 323 F.3d at 877-78.
“[A] claim of excessive force in the course of making a seizure of the person is
properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.”
Scott v. Harris, 550 U.S. 372, 381 (2007)(quoting Graham v. Connor, 490 U.S. 386, 388
(1989))(internal quotations omitted). “A Fourth Amendment seizure occurs when there is
a governmental termination of freedom of movement through means intentionally applied.”
Id. (quoting Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989))(internal quotations
omitted). “The Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the right to be free from excessive force during the course of a criminal
apprehension.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)(citing Graham, 490
U.S. at 394).
In determining whether an officer’s use of force is excessive, “[t]he question is
whether the officer’s conduct is objectively reasonable in light of the facts confronting the

12

The Supreme Court has limited Saucier’s mandate that a district court must decide
the question of qualified immunity by deciding first if there has been a constitutional
violation. Pearson v. Callahan, 555 U.S. 223, 236 (2009)(“On reconsidering the procedure
required in Saucier, we conclude that, while the sequence set forth there is often appropriate,
it should no longer be regarded as mandatory. The judges of the district courts and the courts
of appeals should be permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.”). In this case, the court finds the Saucier
sequence is appropriate.
25

officer.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (citing Graham, 490 U.S.
at 394)). The reasonableness of the use of force is measured objectively and it is “judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Graham, 490 U.S. at 397; Penley v. Eslinger, 605 F.3d 843, 852 (11th Cir.
2010); Crenshaw v. Lister, 556 F.3d 1286, 1290 (11th Cir. 2009). Examination of the
objective reasonableness of the force used allows for consideration of the circumstances in
light of 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.” Oliver, 586 F.3d at 905-06 (citing Graham, 490 U.S.
at 396-97).
Because the test of reasonableness under the Fourth Amendment is not capable
of precise definition or mechanical application, however, its proper application
requires careful attention to the facts and circumstances of each particular case,
including [1] the severity of the crime at issue, [2] whether the suspect poses
an immediate threat to the safety of the officers or others, and [3] whether he
is actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)(quoting United
States v. Place, 462 U.S. 696, 703 (1983))(internal citations and quotations omitted). “As
[the Eleventh Circuit] has clarified, the second factor [– whether the suspect poses an
immediate threat to the safety of the officers or others –] can be reduced to a single question:
whether, given the circumstances, [the suspect] would have appeared to reasonable police
officers to have been gravely dangerous.” Penley, 605 F.3d at 851 (quoting Pace v.
Capobianco, 283 F.3d 1275, 1281 (11th Cir. 2002)).
26

[T]he use of deadly force is more likely reasonable if: the suspect poses an
immediate threat of serious physical harm to officers or others; the suspect
committed a crime involving the infliction or threatened infliction of serious
harm, such that his being at large represents an inherent risk to the general
public; and the officers either issued a warning or could not feasibly have done
so before using deadly force. But . . . none of these conditions are
prerequisites to the lawful application of deadly force by an officer seizing a
suspect.
Id. at 851 (citing Scott, 550 U.S. at 382; Tennessee v. Garner, 471 U.S. 1, 11-12
(1985))(internal citations omitted); see also Robinson v. Arrugueta, 415 F.3d 1252, 1255
(11th Cir. 2005).
Defendants contend that Officer Hutchins saw Mr. Osby attack Deron Cook with a
deadly weapon and that he ordered Mr. Osby to drop the weapon. When Osby did not drop
the weapon, Officer Hutchins shot him in the back and killed him. However, plaintiff’s
evidence disputes defendants’ recitation of the events surrounding the shooting.
Plaintiff has presented evidence from which a jury could find that Officer Hutchins
knew Deron Cook was the aggressor, not Mr. Osby. Plaintiff’s evidence also supports a
finding that Officer Hutchins did not give any warning before shooting Mr. Osby. Also, even
if the jury found Officer Hutchins had commanded Mr. Osby to drop the fork, he shot him
less than a second later, not giving Mr. Osby time to acquiesce. Moreover, a reasonable jury
could find Mr. Osby posed no threat to anyone at the time of the shooting because Deron
Cook had left the room and, at the time, Mr. Osby was trying to stand up and put down the
weapon – facts that would be evident to a reasonable officer in the position of Officer
Hutchins. Based on this evidence, a jury could find that any reasonable police officer in the
27

same position as Officer Hutchins would not have exercised deadly force in violation of Mr.
Osby’s Fourth Amendment rights.
Having found that plaintiff has made a sufficient showing of unconstitutional
excessive force, the second step in the Saucier analysis requires the court to determine
whether Officer Hutchins is entitled to qualified immunity because the law was not clearly
established at the time of the shooting that use of such force under the circumstances was
excessive. Officer Hutchins is not entitled to qualified immunity if, “at the time of the
incident, every objectively reasonable police officer would have realized the acts violated
clearly established federal law.” Harris, 433 F.3d at 812 (citations omitted). The Eleventh
Circuit has held that a plaintiff can establish that the law was clearly established in two ways:
The first is to point to a materially similar case that has already decided that
what the police officer was doing was unlawful. Because identifying factually
similar cases may be difficult in the excessive force context, [the Eleventh
Circuit has] recognized a narrow exception also allowing parties to show that
the official’s conduct lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily
apparent to the official, notwithstanding the lack of case law. Under this test,
the law is clearly established, and qualified immunity can be overcome, only
if the standards set forth in Graham and [Eleventh Circuit] case law inevitably
lead every reasonable officer in the defendant’s position to conclude the force
was unlawful.
Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002)(internal quotations and citations
omitted.)
“In the context of Fourth Amendment excessive force claims, [the Eleventh Circuit
has] noted that generally no bright lines exists for identifying when force is excessive; [the

28

Eleventh Circuit has] concluded that unless a controlling and materially similar case declares
the official’s conduct unconstitutional, a defendant is usually entitled to qualified immunity.”
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000) (citing Smith v.
Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)). The narrow exception to this rule is where
the plaintiff shows that “the official’s conduct lies so obviously at the core of what the Fourth
Amendment prohibits,” and “was so far beyond the hazy border between excessive and
acceptable force that the official had to know he was violating the Constitution even without
caselaw on point.” Id. (citations omitted). Under either test, “pre-existing law must dictate,
that is, truly compel (not just suggest or raise a question about), the conclusion” that every
like-situated reasonable officer would consider the officer’s actions, in question, constituted
a violation of the law. Id. When reviewing caselaw, in this context, the court is limited to
decisions of the United States Supreme Court, the Eleventh Circuit, or the highest court of
the relevant state that were issued as of the date of the conduct in question. Vinyard, 311
F.3d at 1351-52 and n.22.
Viewing the evidence in the light most favorable to plaintiff, any reasonable officer
on the scene would have known that Mr. Osby was a victim and not the aggressor. Also, Mr.
Osby was not threatening anybody, the altercation with Deron Cook had ended, and Deron
Cook was no longer in the kitchen when Officer Hutchins shot Mr. Osby. Moreover, Officer
Hutchins and his partner, Officer Mays, were within feet of Mr. Osby, with their guns drawn,
presumably capable of stopping Mr. Osby should he suddenly pose a threat. The court notes

29

that Officer Mays testified that Officer Hutchins shot Mr. Osby less than a second after
saying something to him; he did not give Mr. Osby sufficient time to comply before shooting
him. Therefore, viewing the evidence in the light most favorable to the plaintiff, a reasonable
officer would not have deemed Mr. Osby to be an immediate threat to his safety or the safety
of others. Also, because Mr. Osby had only a fork, which Officer Hutchins testified he
thought was a knife, and because Deron Cook was no longer in the room, any reasonable
officer in Officer Hutchins position, must have known that the situation did not call for the
use of deadly force.
The Supreme Court has held:
Specifically with regard to deadly force, we explained in Garner13 that
it is unreasonable for an officer to seize an unarmed, nondangerous suspect by
shooting him dead. But where the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape by using deadly
force.
Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004)(quoting Tennessee v. Garner, 471 U.S.
1, 11 (1985))(internal citation and quotations omitted). Specifically, the Supreme Court in
Garner held:
Where the officer has probable cause to believe that the suspect poses a threat
of serious physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force. Thus,
if the suspect threatens the officer with a weapon or there is probable cause to
believe that he has committed a crime involving the infliction or threatened

13

Tennessee v. Garner, 471 U.S. 1 (1985).
30

infliction of serious physical harm, deadly force may be used if necessary to
prevent escape, and if, where feasible, some warning has been given.
Garner, 471 U.S. at 11-12. “[A]n officer will be entitled to qualified immunity if he had
“arguable probable cause” to employ deadly force; [therefore, the court must] decide whether
“the officer reasonably could have believed that probable cause existed” to use deadly force.
Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003)(citations omitted).
At the time of the shooting in 2008, the Eleventh Circuit, for over twenty years, had
recognized “that shooting a suspected felon who was apparently neither fleeing nor
threatening the officers or others was – even in July, 1983 – an unreasonable seizure and
clearly violated fourth amendment law.” See Lundgren v. McDaniel, 814 F.2d 600, 603
(11th Cir. 1987)(footnote omitted).14

14

In the Lundgren case, a police officer had shot and killed a store owner under the
following circumstances:
On July 10, 1983, a front window of the Marianna Video Store was
broken. Owner Richard Lundgren cleared the broken glass and replaced it
with a sheet of plywood. That night, Richard and his wife, Margaret, slept in
the store behind a desk.
At around 2:00 a.m. on July 11, 1983, deputy sheriffs Davis and Cloud
noticed the broken window, and suspected that a burglary was in progress.
They entered the store without announcing themselves. The store was only
faintly illuminated by a television.
What happened next is sharply disputed by the parties. At trial, deputy
Davis testified that he saw a large shadow or silhouette rise up from behind a
desk, saw a flash of light from a gun, and felt a blast of hot air on his forehead.
After being shot at, Davis testified, he fired three times in return. When the
shooting stopped, Davis went around the desk, shining his flashlight. He saw
31

Richard lying with blood trickling from his head and saw a gun on the floor.
Davis testified that Margaret then reached for this gun and that he told her not
to touch it. Although Davis testified at trial that Margaret Lundgren fired the
initial shot, in a prior statement to an investigator, Davis indicated that Richard
Lundgren fired the first shot.
...
On direct examination at trial, Margaret Lundgren testified that she
woke up her husband when she heard someone walking on the broken glass
outside the store. Margaret testified that as her husband Richard “was raising
up someone started shooting and [Richard] was shot.” According to
Margaret’s testimony on direct examination, Richard did not get “all the way
above the desk” before he was shot; Richard never fired a shot; and she never
fired a shot. Also, Margaret denied having later reached for a gun.
On cross examination, Margaret testified that she never saw Richard
reach for a gun. When confronted by her prior deposition statement that “I
recall him reaching for his gun,” Margaret retracted, saying that she did not
know whether Richard reached for a gun and that Richard could have fired a
shot. Margaret also testified that Richard “never really had a chance to get up
off the floor.”
Forensic examination revealed that Richard Lundgren had been struck
by one bullet in the right temple and that this bullet had first passed through
the desk. Investigators found no physical evidence suggesting that Richard or
Margaret had fired a shot. The pistol found in the store had lint in the barrel.
No ejected shell casings were found. No gunshot residues were found on
Richard’s hands.
...
. . . Whether plaintiff or the decedent stood up behind the desk,
threatened the officers with a weapon, or fired a shot, were and are sharply
contested by the parties.
The jury could have reasonably believed that the officers were neither
threatened by a weapon, nor appeared to be threatened by a weapon, nor were
fired upon, but rather that the officers without provocation shot at a
32

In this case, as set forth above, the facts, viewed in the light most favorable to
plaintiff, support a finding that Hutchins knew that Osby was not suspected of any crime and
was actually a victim; that he did not pose a threat to Hutchins, another officer, or other
person; that he was not resisting arrest or attempting to escape; and that a warning and
chance to comply were feasible under the circumstances. A reasonable jury could find that
Officer Hutchins “without provocation shot at a nondangerous suspect.” Lundgren, 814 F.2d
at 603. Since 1983, every reasonable officer in Officer Hutchins’s position would have
known that the use of deadly force against Mr. Osby under the circumstances was
unconstitutional.
The court finds that Officer Hutchins is not entitled to qualified immunity. Therefore,
defendants’ Motion to Dismiss on the grounds of qualified immunity will be denied.
2. City’s Liability
The Supreme Court has strictly limited a municipality’s liability under Section 1983.
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citing Monell v. Dept. of Social
Servs., 436 U.S. 658, 694 (1978)). In Monell, the Supreme Court held that municipalities are
“persons” within the meaning of § 1983 and “may only be held liable under 42 U.S.C. § 1983
when the injury caused was a result of municipal policy or custom.” Monell, 436 U.S. at 691;

nondangerous suspect. Indeed, this is apparently what the jury did conclude
....
Lundgren v. McDaniel, 814 F.2d 600, 602-03 (11th Cir. 1987).
33

Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir. 2009). A city may not be
held vicariously liable for the unconstitutional acts of its employees under the theory of
respondeat superior. Monell 436 U.S. at 691. A plaintiff may establish municipal liability
in three ways:
First, the plaintiff may prove that a city employee committed the alleged
constitutional violation pursuant to a formal governmental policy or a
longstanding practice or custom which constitutes the standard operating
procedure of the local governmental entity. Second, the plaintiff may establish
that the individual who committed the constitutional tort was an official with
final policy-making authority and that the challenged action itself thus
constituted an act of official governmental policy. Whether a particular
official has final policy-making authority is a question of state law. Third, the
plaintiff may prove that an official with final policy-making authority ratified
a subordinate’s unconstitutional decision or action and the basis for it.
Gillette v. Delmore 979 F.2d 1342, 1346 -1347 (9th Cir. 1992)(quoting Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 737 (1989) and citing, inter alia, City of St. Louis v. Praprotnik, 485
U.S. 112, 123-24 (1988)(plurality opinion); Pembaur v. City of Cincinnati, 475 U.S. 469,
480-81 (1986); Monell, 436 U.S. at 690-91 )(internal citations and quotations omitted).
Plaintiff alleges that the City is liable because of its policies and/or customs of police
interaction with mentally-ill individuals and of not investigating the use of deadly force by
its police officers.
a. Custom or policy – Mentally-Ill Suspects
Plaintiff contends:
[T]he City [has] failed to train officers on how, specifically, to handle
persons with mental illness when they encounter them, [and] the City has also
utterly failed to adopt and implement a policy that tracks its encounters with
34

mentally ill persons requiring repeated intervention, so that its police officers
and social workers (CSO’s) can properly and safely respond to disturbances
caused by such persons and issue the appropriate corrective action. The failure
to adopt and implement a policy or practice of adequately preparing first
responders to these situations, combined with the failure to train officers in the
first place, results in a standard of care well below the contemporary standard
for police departments and leads to the entirely foreseeable consequence of
unnecessarily violent and deadly encounters between the police and the
mentally disturbed and their families, as with Osby.
(Doc. 35 at 34-35.) Based on the evidence presented, the court assumes, for purposes of
summary judgment only, that “neither the police officers, police dispatch CSO’s, nor
supervisors are trained on how to properly interact with, respond to, prepare for, or keep
track of persons with mental illness at residences repeatedly requiring police intervention,”
and, “[i]n addition to failing to keep its Officers informed about potentially violent mentally
ill people they may encounter at certain residences, the City also fails to notify the very
employees it hires to assist its mentally ill citizens – the CSOs, thus preventing them from
doing their job.” (See id. at 37.) Plaintiff contends that these failures directly caused Mr.
Osby’s death; she argues:
Here, the city’s complete failure to train or otherwise prepare its officers to
approach a potentially violent situation involving a mentally ill person, and to
even apprise the officers that they were entering a residence where a mentally
ill person had repeatedly exhibited violent and erratic behavior of which the
city had been repeatedly made aware, led to the entirely foreseeable
consequence that the officers, believing they had been called to stop a
domestic dispute, entered the residence, guns ablaze, and responded with
excessive, deadly force. Had they been aware that the call was regarding a
mentally ill person with a history of aggressive behavior and had they been
properly trained on how to deal with such persons, then the situation would
likely not have resulted in the tragic death of Reginald Osby. Had the CSOs
been properly notified regarding the multiple instances of Deron’s erratic
35

behavior based on Christine’s previous emergency calls, he may have been in
a proper home or involuntarily committed, removing him, and Osby, from the
dangerous situation leading to Osby’s death.
(Id. at 43.)
In order for the City to be liable, plaintiff must prove a direct causal link between the
policy and/or custom at issue and Mr. Osby’s death. Brown, 520 U.S. at 404; Jett v. Dallas
Independent School Dist., 491 U.S. 701, 737 (1989); City of Canton, 489 U.S. at 385. The
policy and/or custom – or lack thereof – “must be closely related to the ultimate injury” – Mr.
Osby’s death. City of Canton, 489 U.S. at 391. “The connection between conduct and harm
must be legally sufficient to satisfy notions of common fairness and policy.” Dixon v. Burke
County, 303 F.3d 1271, 1275 (11th Cir. 2002). The City’s “deliberate conduct” must be “the
moving force behind the injury.” Brown, 520 U.S. at 404.
The court finds that the City’s lack of a policy for handling mentally-ill suspects or
its custom of not flagging residences or contacting CSOs did not cause Officer Hutchins to
use excessive force in this case. Mr. Osby was not mentally ill and he did not have a history
of mental illness. Officer Hutchins thought, erroneously, that Mr. Osby was the aggressor
and that he had a weapon. The evidence indicated that Officer Hutchins had been told that
Ms. Leath’s son was mentally ill and that he was the aggressor. Officer Hutchins shot Mr.
Osby without warning him in spite of the fact that Deron Cook had left the area and Mr.
Osby was only moving to put down the fork. The evidence does not support an inference that
Officer Hutchins contemplated his course of action and nothing in the record supports a

36

finding that he would have behaved any differently if he had known before arriving on the
scene that Deron Cook was mentally ill. The argument that Deron Cook was mentally ill and
may have been institutionalized at the time of the incident had officers responded differently
on prior occasions is too remote and too speculative to support a finding that such failure to
act caused Officer Hutchins to shoot Mr. Osby on October 12, 2008.
Accordingly, the court finds that plaintiff has not submitted sufficient evidence from
which a jury could infer that Hutchins’s use of excessive force was caused by or resulted
from a policy or custom of the City regarding mentally ill individuals. Thus, as to those
claims, the City is entitled to an entry of judgment in its favor, as a matter of law, and
defendants’ Motion for Summary Judgment as to plaintiff’s excessive force claim against the
City is due to be granted.
b.

Failure to Investigate Prior Uses of Deadly Force by Birmingham
Police Officers.

Plaintiff contends, “The City of Birmingham is also responsible for Hutchins’[s] use
of excessive deadly force because it failed to formulate and execute an internal administrative
review of officer shootings and to discipline those who have been found to unreasonably use
deadly force.” (Doc. 35 at 45 [citing Fields v. Nawotka, No. 03-CV-1450, 2008 WL 746704
(E.D. Wis. Mar. 18, 2008)].) She contends:
In Fields, the plaintiffs’ Monell claims were also based upon the failure
of the Police Department’s policy makers to formulate and execute an internal
administrative review of officer shootings and discipline those that have been
found to unreasonably use deadly force. 2008 WL 746704, *8. The District
Court held that the plaintiffs had presented sufficient evidence of the
37

programs’ inadequacy to survive summary judgment. Namely, the plaintiffs’s
evidence indicated that, inter alia, the Police Department’s “inquest” process
after fatal shootings was inadequate because its “reliance on criminal
proceedings and the prosecutor’s filing decision – which utilize a much higher
standard burden of proof – is unreasonable and inconsistent with generally
accepted police supervisory practices.” Id. This inadequate inquest process
allowed an environment for the use of unreasonable force, because officers
may have believed they will not be held accountable for the consequences of
using deadly force. In addition, this failure to conduct an internal
administrative investigation after the use of deadly force constituted deliberate
indifference against citizens by the ratification of egregious police field
practices known within the law enforcement industry to result in unreasonable
uses of force and deadly force resulting in fatal injuries to citizens. Id. “These
acts, omissions, and acquiesces . . . created an environment which would allow
an officer to engage in improper use of deadly force [and were factors that]
were significant and causal” in the civilian death at issue in that case. Id. at
*8-9.

(Doc. 35 at 45-46.)
The Fields decision, which is not binding on this court, found that plaintiff had
established a question of fact regarding causation based on the testimony of an expert
witness. The Wisconsin district court held:
The plaintiffs argue that the City of Milwaukee and former Milwaukee
Police Department Chief Arthur Jones failed to institute an authentic
administrative review of officer-involved shootings of civilians and failed to
discipline officers for unreasonable uses of deadly force. The plaintiffs’
expert, Lou Reiter, states that the defendants’ internal affairs investigation was
contingent on the outcome of the district attorney’s office criminal
investigation and that this practice is unreasonable and inconsistent with
generally accepted police supervisory practices.
A municipality may only be constitutionally liable under § 1983 for
violations caused by the municipality itself through its own policies and
customs. Monell, 436 U.S. at 694. Although a municipality may be liable
under this “policy or custom” theory, there must be a causal link between the
38

constitutional violations and the municipality's actual policies or customs. See
id. A municipal practice may be actionable under § 1983 if a plaintiff can
establish that the policy or decision making acquiesced in a pattern of
unconstitutional conduct. Cornfield v. Consolidated High School Dist. No.
230, 991 F.2d 1316, 1326 (7th Cir.1993).
The plaintiffs set forth that their claims are not based upon a failure to
train; rather, they are based upon the failure of the Milwaukee Police
Department’s policy makers to formulate and execute an internal
administrative review of officer shootings and discipline those that have been
found to unreasonably use deadly force. Plaintiffs argue this failure amounts
to a constitutional deprivation because: (1) it creates a de facto custom of
unreasonable use of deadly force; (2) it is contrary to written policy and
accepted police practices; and (3) it authorizes the unreasonable use of deadly
force. The plaintiffs argue that the Milwaukee Police Department’s
shortcomings amount to “deliberate indifference” and an actionable § 1983
municipality claim. See Canton v. Harris, 489 U.S. 378, 388-89 (1989).
The court determines that, based upon this theory, there is a genuine
issue of material fact that precludes summary judgment. Viewing the evidence
in the light most favorable to the plaintiffs, the court determines that there is
a material factual issue regarding the police department customs. Unlike this
court’s previous decisions relating to Monell claims for a failure to investigate,
the plaintiffs articulate and present evidence about Milwaukee Police
Department’s investigation practices that could establish their inadequacy.
See Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007).
The plaintiffs’ retained expert, Lou Reiter, averred that the
Milwaukee Police Department has a policy of inadequate investigation that
allows an environment for the use of unreasonable force because officers
may believe they will not be held accountable for the consequences of using
deadly force. (Reiter Aff’d ¶ 5.) Reiter further states that the Milwaukee
Police Department may have had notice of this inadequate policy as early as
1992, and, in spite of opportunities to amend its policies, it has not done so.
(Id. ¶¶ 7-10.) Reiter also criticizes the “inquest” process after fatal shootings
because this process involves a burden of proof beyond a reasonable doubt and
argues that the “reliance on criminal proceedings and the prosecutor’s filing
decision – which utilize a much higher standard burden of proof – is
unreasonable and inconsistent with generally accepted police supervisory

39

practices.” (Id. ¶ 14.) Finally, Reiter concludes that the failure to conduct an
internal administrative investigation after the use of deadly force incidences
constitutes deliberate indifference against citizens by the ratification of
egregious police field practices known within the law enforcement
industry to result in unreasonable uses of force and deadly force
resulting in fatal injuries to citizens . . . . These acts, omissions, and
acquiesces . . . created an environment which would allow an officer to
engage in improper use of deadly force [and were factors that] were
significant and causal in the death of Justin Fields.

(Id. ¶ 15.) The defendants claim that the internal review process is adequate
and even if it were not, there was no causal link between the Milwaukee Police
Department’s failure to investigate and Fields’[s] death. However, the court
finds that the plaintiffs’ record evidence and supporting affidavits create
genuine issues of material fact as to whether or not the investigation process
did create a de facto policy of ratifying officer use of deadly force; the court
further finds that the plaintiffs’ submissions create a genuine issue for trial
regarding the causal link between the review process and the fatal shootings.
In sum, given the material factual disputes, summary judgment on the
plaintiffs’ Monell claims is inappropriate.
Estate of Fields v. Nawotka, 2008 WL 746704, 7-9 (E.D. Wis. 2008)(emphasis added).
Plaintiff has not presented expert testimony of an “affirmative link” between the
City’s investigation of its officers’ use of deadly force and Officer Hutchins’s shooting of
Mr. Osby. See Brooks v. Scheib, 813 F.2d 1191, 1195 (11th Cir. 1987). Plaintiff must show
some evidence that a different system for investigating officers’ use of deadly force would
have prevented Mr. Osby’s death. Id.; see also Gold v. City of Miami, 151 F.3d 1346, 1353
(11th Cir. 1998)(citing Brooks). Such evidence is not before the court.

40

Therefore, as to the claims that the City’s policy or custom of investigating on-duty
shootings caused Officer Hutchins to use excessive force in this case, defendants’ Motion
for Summary Judgment will be granted.
B. EQUAL PROTECTION
Plaintiff’s Amended Complaint alleges:
39. The Birmingham City Police Officers who responded in person to
a call to Mr. Osby’s residence on October 12, 2008, are all white males. [Mr.]
Osby was a black male.
40. Defendant City ratified, sanctioned and/or condoned the conduct
of the white police officers who responded in person to [Mr.] Osby’s home on
October 12, 2008, including the fatal shooting of [Mr.] Osby and thus
Defendants unlawfully subjected [Mr.] Osby to discrimination on the basis of
his race. Defendants’ actions deprived [Mr.] Osby of his right to equal
protection of the laws in violation of the Fourteenth Amendment of the
Constitution of the United States and 42 U.S.C. [§] 1983.
41. The actions and inactions of Defendants in relation to the events of
October 12, 2008, and the fatal shooting of [Mr.] Osby were part of a pattern
and practice and custom of denying appropriate protective services to
minorities and, as such, constitute a denial of [Mr.] Osby’s right to equal
protection of the laws in violation of the Fourteenth Amendment of the
Constitution of the United States.
(Doc. 14 ¶¶ 39-41.)15

15

Defendants argue that plaintiff has raised an equal protection claim based on the
disparate treatment of mentally-ill individuals. The court notes that plaintiff did not “claim
an Equal Protection violation based on mental illness.” (Doc. 42 at 8.)
41

1. Officer Hutchins
a. Official Capacity
For the reasons set forth, the court finds that claims against Officer Hutchins in his
official capacity are redundant of claims against the City for violations of Mr. Osby’s equal
protection rights. Therefore such claims will be dismissed.
b. Individual Capacity
“The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike. City of
Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985)(quoting U.S. Const.,
amend. XIV; citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). To prove a claim based on a
violation of the Equal Protection Clause of the Fourteenth Amendment, plaintiff must allege
and prove that “‘through state action, similarly situated persons have been treated
disparately,’” and “that [Officer Hutchins’s] actions were motivated by race.” Draper v.
Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004)(quoting Thigpen v. Bibb County
Sheriff’s Department, 223 F.3d 1231, 1237 (11th Cir. 2000), abrogated on other grounds by
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)); citing Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 (1977)); see also
Austin v. City of Montgomery, 353 Fed. Appx. 188, 191 (11th Cir. 2009) GJR Investments,
Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367-68 (11th Cir. 1998). “Evidence which

42

merely indicates disparity of treatment or even arbitrary administration of state powers, rather
than instances of purposeful or invidious discrimination, is insufficient to show
discriminatory intent.” Hope v. Allen, Civil Action No. 2:07cv210-MHT, 2009 WL 1688177,
*010 (M.D. Ala. June 16, 2009)(citing McKleskey v. Kemp, 481 U.S. 279, 292
(1987))(Walker, M.J., Report and Recommendation).
Defendants contend that plaintiff’s equal protection claim against Officer Hutchins
is due to be dismissed because Officer Hutchins is not white, but he is a Native American.
(Doc. 31 at 30.) However, Officer Hutchins’s race, which is not the same as Mr. Osby’s
race, which is African-American, is not particularly relevant to whether plaintiff’s equal
protection claim can survive defendants’ Motion for Summary Judgment. See Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998)(the Supreme Court held
“[b]ecause of the many facets of human motivation, it would be unwise to presume as a
matter of law that human beings of one definable group will not discriminate against other
members of their group”)(quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)). Nothing
in this record creates a presumption that Officer Hutchins would not discriminate against
African-Americans because he is of Native American descent and not white.
Defendants also contend that plaintiff has not presented evidence of similarly-situated
individuals or that Officer Hutchins was motivated by racial animus. Plaintiff contends,
“There is ample evidence that Hutchins treated black suspects much less favorably that [sic]

43

whites and that the City was aware of his discriminatory actions but took no steps to stop
them.” (Doc. 35 at 53-54.) She contends:
For example, Hutchins has been accused of racial profiling related to a stop he
conducted of an African-American man driving a nice car. This man
submitted a statement stating “Officer Hutchins and his partner (have) serious
issues with the African American race (and they) . . . hate and despise black
people”. (EX. 16; Hutchins at 19-22, 47-48.) The man filed a lawsuit as a
result of this stop, but it was dismissed because his attorney took no
depositions and presented no response to defendants’ Motion for Summary
Judgment. The issue of racial profiling was not mentioned in the Complaint
or the Opinion. (EX. 16; Hutchins at 19-22, 47-48.) Therefore, contrary to
Defendants’ suggestion otherwise, no finding was reached regarding whether
Hutchins stopped the man because of his race. (EX. 38, Def. EX. 15.) The
City was aware of this complaint against Hutchins, but either ignored it or took
steps to conceal its true nature: Defendants’ combined report of complaints on
Officer Hutchins states only that this complaint regarded “Alleges ofcr was
rude towards him”; it fails to mention the allegation of racial profiling. (EX.
39.)
In addition, Hutchins has a history of using force against African
Americans: in February 2004 he tased a black male; in May 2005 he tased
another black male; in October 2006 he kneed a black male; in June 2007 he
tased a third black male; in April 2007 he tased a fourth black male; and in
April 2009 he tased a fifth black male. (Hutchins at 35-37, 67-68, 73-74; EXs
3, 7, 23, 24, 25, 28.) Hutchins could not identify a single instance of using
force against a white male. (Hutchins at 66-67, 71-72.)
This evidence is sufficient for a jury to conclude that Hutchins’s
unjustified use of excessive, lethal force against Osby was motivated by his
demonstrated racial animus, known to the Police Department but ignored
and/or condoned. This claim should go to a jury.
(Doc. 35 at 54-55.)
One incident of alleged racial profiling and seven incidents of Officer Hutchins’s use
of force against black males over a six-year period, without any evidence regarding similar

44

incidents involving white males where force was not used, does not provide sufficient
evidence from which a reasonable jury could infer that Officer Hutchins shot Mr. Osby
because he was African-American. See Swint v. City of Wadley, 51 F.3d 988, 1000 (11th Cir.
1995)(“Absent some evidence of racially disproportionate arrests compared to the actual
incidence of violations by race, there is no basis for inferring racially selective law
enforcement.”); see also Urbanique Production v. City of Montgomery, 428 F. Supp. 2d
1193, 1224 (M.D. Ala. 2006)(citing Swint, 51 F.3d at 1000; also citing United States v. Bell,
86 F.3d 820, 823 (8th Cir.1996); United States v. Duque-Nava, 315 F. Supp. 2d 1144, 1152
n.15 (D. Kan. 2004)). Without evidence that Officer Hutchins encountered white males
under the same or similar circumstances and did not use the same or similar force, plaintiff
cannot show that Officer Hutchins treated white individuals more favorably than black
individuals with regard to his use of force.
Based on the foregoing, the court finds plaintiff has not shown Officer Hutchins
violated Mr. Osby’s equal protection rights. Therefore, defendants’ Motion for Summary
Judgment as to Count II of plaintiff’s Complaint against Officer Hutchins in his individual
capacity will be granted.
2. The City
Because the court has found that plaintiff has not established a violation of Mr. Osby’s
equal protection rights by Officer Hutchins, summary judgment is due to be granted as to her
Equal Protection Clause claim against the City. See Urbanique Production, 428 F. Supp. 2d

45

at 1225 (“Municipal liability is foreclosed on Plaintiffs’ Fourteenth Amendment claim
against the City because the court has concluded that no underlying equal protection violation
was committed by [the individual defendants] as to the events at issue in this case.”); see also
Rooney v. Watson, 101 F.3d 1378, 1380 (11th Cir. 1996)(“An inquiry into a governmental
entity’s custom or policy is relevant only when a constitutional deprivation has occurred.”);
Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir. 1993) (“Only when it is
clear that a violation of specific rights has occurred can the question of § 1983 municipal
liability for the injury arise.”).
Therefore, defendants’ Motion for Summary Judgment as to Count II of plaintiff’s
Complaint against the City will be granted and plaintiff’s Equal Protection claim will be
dismissed.
C. WRONGFUL DEATH
Plaintiff alleges:
44. This is a claim brought pursuant to 6-5-410 of the Code of
Alabama for the wrongful death of Reginald W. Osby.
45. Osby died on October 12, 2008, at the age of 59 years. The direct
proximate cause of Osby’s death was the Defendants’ negligent, wanton or
willful acts and omissions.
46. Defendant Hutchins’[s] shooting of Osby in the back was the direct
proximate cause of Osby’s death. Hutchins’[s] actions were negligent,
careless, unskillful, reckless, willful and/or wanton. Defendant City is
responsible for the actions of its actions, including Officer Hutchins, under
respondeat superior. Defendant City is also responsible itself for negligently
training and supervising its employees, including Officer Hutchins. The City’s
actions and omissions were negligent, careless, unskilled, reckless, willful
46

[and/or] wanton. These acts and failures to act resulted in Osby’s wrongful
death.
(Doc. 14 ¶¶ 44-46.) Defendants contends that they “are entitled to state-agent immunity.”
(Doc. 30 ¶ 13.) They argue:
Alabama law provides immunity from liability to law enforcement officers for
discretionary acts while acting in the line and scope of their duties. Hutchins
is treated as an officer of the state and has immunity from tort liability arising
out of his performance of discretionary functions within the line and scope of
his law enforcement duties. This law extends immunity to peace officers, and
as Hutchins’[s] employer, the City is afforded the benefit of his immunity.
(Doc. 31 at 44 [citing Ala. Code § 6-5-338; Ex parte City of Gadsden, 781 So. 2d 936, 940
(Ala. 2000).
Alabama’s law of immunity for municipalities and their peace officers is not a model
of clarity. The Eleventh Circuit recently discussed the basics:
Under Alabama law, “[s]tate-agent immunity protects state employees,
as agents of the State, in the exercise of their judgment in executing their work
responsibilities.” Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 2002). In Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000), a plurality of the Alabama
Supreme Court restated and clarified the scope of Alabama’s state-agent
immunity doctrine, which bars suit against law enforcement officers effecting
arrests, except to the extent the officer acted willfully, maliciously,
fraudulently, in bad faith, beyond his legal authority, or under a mistaken
interpretation of law, or if the Constitution or laws of the United States or
Alabama require otherwise. Id. at 405.
There is also statutory, discretionary-function immunity in Alabama.
Specifically, § 6–5–338 of the Alabama Code contains a provision immunizing
law enforcement officers from tort liability for conduct within the scope of

47

their discretionary law enforcement duties.16 Ala. Code § 6–5–338(a) (1994)
(“Every 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.”). Cranman’s test for
state-agent immunity governs whether law enforcement officers are entitled to
statutory, discretionary-function immunity under § 6–5–338(a). Ex parte City
of Tuskegee, 932 So. 2d 895, 904 (Ala.2005) (“The restatement of State-agent
immunity as set out in Cranman, 792 So. 2d at 405, now governs the
determination of whether a peace officer is entitled to immunity under §
6–5–338(a).”). . . .
The Alabama Supreme Court established a burden-shifting framework
for application of the state-agent immunity test. A defendant initially bears the

16

Section 6-5-338(a) and (b) state:

(a) Every peace officer, except constables, who is employed or appointed
pursuant to the Constitution or statutes of this state, whether appointed or
employed as such peace officer by the state or a county or municipality thereof,
or by an agency or institution, corporate or otherwise, created pursuant to the
Constitution or laws of this state and authorized by the Constitution or laws to
appoint or employ police officers or other peace officers, and whose duties
prescribed by law, or by the lawful terms of their employment or appointment,
include the enforcement of, or the investigation and reporting of violations of,
the criminal laws of this state, and who is empowered by the laws of this state
to execute warrants, to arrest and to take into custody persons who violate, or
who are lawfully charged by warrant, indictment, or other lawful process, with
violations of, the criminal laws of this state, shall at all times be deemed to be
officers of this state, and as such 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.
(b) This section is intended to extend immunity only to peace officers and
governmental units or agencies authorized to appoint peace officers. No
immunity is extended hereby to any private non-governmental person or entity,
including any private employer of a peace officer during that officer's off- duty
hours.
Ala. Code § 6-5-338 (a) & (b)(emphasis added).
48

burden of demonstrating that he was acting in a function that would entitle the
agent to immunity. Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala.
2006). “If the State agent makes such a showing, 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.” Id.
Brown v. City of Huntsville, 608 F.3d 724, 740-41 (11th Cir. 2010).
The Alabama Supreme Court has “held that officers do not have discretion, in the
exercise of their judgment, to make an arrest if there is no arguable probable cause.” Mann
v. Darden, 630 F.Supp. 2d 1305, 1317 (M.D. Ala. 2009)(citing Borders v. City of Huntsville,
875 So. 2d 1168, 1180 (Ala. 2003)). “[M]uch like making an arrest without arguable
probable cause, using an unreasonable amount of force is not within the discretion of an
officer.” Id. at 1318 (citing Franklin, 670 So. 2d at 852 [“motion for summary judgment
should have been granted [in favor of the peace officer defendant] only if [plaintiff]
presented no substantial evidence to create a genuine issue of material fact as to whether
probable cause existed to make a lawful arrest or as to whether the force used was
excessive” (emphasis added)].) “While the use of force is typically within the discretion of
an officer . . ., the use of unreasonable and egregious levels of force is not.” Id. Therefore,
“if the evidence seen in the light most favorable to [plaintiff] suggests that no reasonable
officer could have thought the degree of force was acceptable, then [Hutchins] was not acting
within his discretion and is not entitled to discretionary-function immunity.”17 Id.

17

The Mann court recognized that this analysis of the scope of the agent’s discretion
differs from the federal court qualified immunity analysis. Mann, 630 F. Supp. 2d at 1318
n.8.
49

As set forth above, viewing the facts in the light most favorable to plaintiff, a
reasonable jury could find “that no reasonable officer could have thought the degree of force
[used by Hutchins] was acceptable, and therefore, he acted outside his authority. Id. As a
result, Hutchins is not immune under § 6-5-338 and the Cranman doctrine. Because
Hutchins is not immune, the City is not entitled to immunity pursuant to § 6-5-338.
Defendants cite Ala. Code § 11-47-190, as support for their argument that the
plaintiff’s claim for punitive damages should be dismissed.18 (See doc. 31 at 49.) However,
they do not argue that this section provides immunity to the City for Hutchins’s actions. (See
id. at 35-40.) Therefore, the court is not called upon to decide whether the City, as a matter
of law, is entitled to immunity under § 11-47-190.19
18

Defendants argue:

Punitive damages are not recoverable against a municipality for federal
claims. The U.S. Supreme Court has consistently held that public policy does
not support punitive damages against a city for the bad-faith actions of its
officials. City of Newport News v. Fact Concerts, Inc., 453 U.S. 247, 271
(1981). Hutchins is due qualified immunity. For state law claims, they are
also, as a general rule, prohibited by statute. §§ 6-11-26, 6-11-29, and § 1147-190, Ala. Code (1975). In any event, Alabama law limits the City’s
liability for tort claims, including wrongful death actions to $100,000.00 for
bodily injury or death to one person. §§ 11-93-2, 11-47-190, 6-11-29. Based
on the above arguments, Hutchins and the City are also due state agent
immunity.
(Doc. 31 at 49.)
19

The court notes that, pursuant to Ala. Code § 11-47-190, the City is liable for
injuries caused by “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.” The Alabama courts have held that a claim against a municipality alleging that its
50

D. PUNITIVE DAMAGES
Defendants contend the City is not liable for punitive damages under federal law,
which plaintiff concedes. Defendants also contend that the City is not liable for punitive
damages under state-law. The only state-law claim against the City is for wrongful death;
section 11-93-2 of the Alabama Code limits damages to “$100,000.00 for . . . death for one
person in any single occurrence.” Ala. Code § 11-93-2. Therefore, although only punitive
damages are available in a wrongful death case under Alabama law and punitive damages
against a municipality are limited under Alabama law, section 11-93-2 expressly provides
that the City may be liable in a wrongful death case for up to $100,000.
Defendants’ Motion for Summary Judgment as to plaintiff’s federal claim for punitive
damages against the City is granted; the Motion is denied as to plaintiff’s state law claim
against the City and all claims against Officer Hutchins.

police officer used excessive force in effecting an arrest may be cognizable under § 11-47190 as a “negligent assault and battery” – a claim that the amount of force used by the officer
was greater than that which a skilled or proficient officer would use in similar circumstances.
See Franklin v. City of Huntsville, 670 So. 2d 848, 852-53 (Ala. 1995); see also City of
Birmingham v. Thompson, 404 So. 2d 589 (Ala. 1981) (“This case was submitted to the jury
on the theory that an agent of the City of Birmingham had used ‘excessive force’ upon the
plaintiff . . . .
The record in this case contains sufficient evidence to support a reasonable jury
finding that Officer Hutchins’s conduct was “not measured or patterned for the
circumstances, or [was] an unskilled response . . .,” and that his use of force under the
circumstances was not the “response [that] a skilled or proficient officer would exercise in
similar circumstances.” City of Birmingham v. Thompson, 404 So. 2d 589, 592 (Ala. 1981).
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CONCLUSION
For the foregoing reasons, the court is of the opinion that there are material facts in
dispute and defendants are not entitled to judgment as a matter of law as to plaintiff’s
excessive force claim against Officer Hutchins in his individual capacity and her wrongful
death claims against the City and Officer Hutchins in his individual capacity. The court is
of the opinion that there are no material facts in dispute and defendants are entitled to
judgment as a matter of law as to plaintiff’s excessive force claim against the City, her equal
protection claim against the City and Officer Hutchins in his individual capacity, and all
claims against Officer Hutchins in his official capacity. An Order granting in part and
denying in part defendants’ Motion for Summary Judgment, (doc. 30), will be entered
contemporaneously with this Memorandum Opinion.
DONE, this 28th day of September, 2012.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE