James v. City of Birmingham, Alabama et al

Filing 62

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 02/19/13. (CVA)

FILED
2013 Feb-19 AM 10:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTONIO JAMES,
Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action Number
2:10-cv-02082-JEO

MEMORANDUM OPINION
This case is before the court on defendants’ Motion for Summary Judgment. (Doc. 53).1
The motion has been fully briefed and is properly under submission before the court. (Docs. 54,
57 & 58). This case stems from an interaction between plaintiff and several City of Birmingham
police officers that resulted in plaintiff being hit with a Taser and arrested for drinking in public.
After the dismissal of two defendants and Count I (the excessive force claim),2 the following
claims remain: false imprisonment brought pursuant to § 1983 (Count II); malicious prosecution
brought pursuant to § 1983 (Count III); negligence in hiring, training, supervision, and retention
brought pursuant to § 1983 (Count IV); state law claim for assault and battery (Count V); state
law claim for false arrest (Count VI); and state law claim for malicious prosecution (Count VII).
(Doc. 1). Defendants contend that they are entitled to judgment as a matter of law on all
remaining claims. (Doc. 1 at 1–2, 5). For the reasons set forth below, the motion is due to be
1

References herein to “Doc. ___” are to the electronic numbers assigned by the Clerk of the Court.
References to page numbers are to the electronic page numbers found at the top of the document. References to the
depositions are to the page numbers and lines on the original document, not the electronic numbers.
2

Specifically, Count I was dismissed as being barred by the statute of limitations on February 16, 2012.
(Doc. 49). Further, the claims against defendants Eric Turner and Christopher Robinette were dismissed with
prejudice on April 30, 2012. (Doc. 55).

granted in part and denied in part.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY3
Around 6:30 p.m. on July 28, 2008, plaintiff, Antonio James, left his job and went to a
friend’s house in Birmingham, Alabama. (Doc. 56 at ¶¶ 3-4). James’s friend left the house
shortly after James arrived, and, at approximately 7:30 p.m., James answered a knock at the front
door. Upon opening the door, he saw a male police officer for the city of Birmingham, Jacorey
Foster, standing on the front porch. (Id. at ¶ 5). Unbeknownst to James, the police had received
a tip that “a possible felony suspect was located at the residence.” (Doc. 54-1 at 1).
James testified that he was holding a beer as he opened the door but that he “had not
drunk from it,” and he did not drink alcohol at any time while the police were on the porch.
(Doc. 56 at ¶¶ 5, 11). James testified that he remained in the doorway of the residence at all
times and at no time stepped onto the front porch. (Id. at ¶ 12). The officer instructed James to
get down. (Id.) James asked if he could help the officer or if the officer had a search warrant or
if he was chasing someone, but again the officer ordered him to get down.4 (Id.) At that time,
James noticed a female officer, Katrina Looney, approach and stand next to Foster, and Foster
instructed Looney to “hit him.” (Id. at ¶ 6). James responded, “what do you mean, hit me?”
(Id.) Looney then fired the taser two times, hitting James in the right hand and stomach. (Id.)
James fell and lost consciousness. (Id. at ¶ 7). The officers then took James to Cooper Green
Hospital in Birmingham, Alabama. (Doc. 54-1 at 2). Upon his release from the hospital, the
3

The facts are presented in the light most favorable to the plaintiff for purposes of summary judgment.

4
Officer Looney testified that she and Officer Foster warned James to get on the ground approximately
twelve times (doc. 54-1 at 2), but James testified that he was given only two warnings. (Doc. 56 at ¶ 17). In the
arrest report, however, Officer Looney documented that they had warned James to get down approximately seven
times. (Doc. 54-2 at 2).

2

officers transferred James to the Birmingham jail and charged him with drinking in public. (Id.)
James testified that he was not told that he was charged with drinking in public until he was
released on bond on July 29, 2008. (Id. at ¶ 10).
While Officer Looney testified that James made statements such as: “I have been
drinking all day, since 10:00 this morning, and y’all messed up my high;” “Regular beer doesn’t
do anything for me, I drink 211's and I’ve had over a case today;” and “I was drunk when y’all
tased me.” (Doc. 54-1 at 2). James testified that he did not make any of those statements. (Doc.
56 at ¶¶ 13-15). On January 26, 2010, when James appeared in court for the drinking in public
charge, the case was dismissed. (Id. at ¶ 24; see also Doc. 1 at ¶ 28).
James filed his complaint against three police officers (Katrina Looney, Eric Turner, and
Christopher Robinette),5 A.C. Roper (chief of police of the City of Birmingham), and the City of
Birmingham on July 29, 2010, pursuant to 42 U.S.C. §§ 1983 and 1988, the Fourth and
Fourteenth Amendments to the United States Constitution, and state law claims for assault and
battery, false arrest, and malicious prosecution. (Doc. 1 at ¶ 2). The court previously dismissed
plaintiff’s § 1983 claim of excessive force as barred by the two-year statute of limitations. (Doc.
49 at 8). The court later dismissed defendants Christopher Robinette and Eric Turner because
those officers were not present during the incident. (Doc. 55). The following claims remain
pending before the court: (1) false imprisonment against Looney pursuant to § 1983;
(2) malicious prosecution against Looney and the City of Birmingham pursuant to § 1983;

5
Plaintiff’s response to summary judgment makes several arguments related to whether officer Jacorey
Foster is entitled to qualified immunity or state agent immunity. (Doc. 57 at 7-9). However, Foster is not a party to
this action. He was not named in the style of the Complaint nor was he ever served. (Doc. 1). Accordingly, there
are no claims pending against officer Foster.

3

(3) negligence in hiring, training, supervision, and retention against Roper and the City of
Birmingham pursuant to § 1983; (4) a state law claim for assault and battery against Looney; (5)
a state law claim for false arrest against Looney; and (6) a state law claim for malicious
prosecution against Looney and the City of Birmingham. (Doc. 1 at 4-9).
SUMMARY JUDGMENT STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a
matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007)
(per curiam ) (citation to former rule omitted); FED. R. CIV. P. 56(a) (“The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”).6 The party moving for summary
judgment “always bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the [record, including pleadings, discovery materials
and affidavits], which it believes demonstrate the absence of a genuine issue [-now dispute-] of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this
burden by presenting evidence indicating there is no dispute of material fact or by showing that
the nonmoving party has failed to present evidence in support of some element of its case on

6

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. “‘Shall’ is also restored to express the direction to grant summary judgment.” Id. Thus,
although Rule 56 underwent stylistic changes, its substance remains the same and, therefore, all cases citing the prior
versions of the rule remain equally applicable to the current rule.

4

which it bears the ultimate burden of proof. Id. at 322–24. “[T]he judge’s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A
judge’s guide is the same standard necessary to direct a verdict: “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
(quoting Anderson, 477 U.S. at 251-52). However, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the evidence is merely colorable,
or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249;
accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must “view
the evidence presented through the prism of the substantive evidentiary burden” so there must be
sufficient evidence on which the jury could reasonably find for the plaintiff. Cottle v. Storer
Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988) (quoting Anderson, 477 U.S. at 254).
Nevertheless, “the evidence of the nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255. The nonmovant need not be given the
benefit of every inference, but only of every reasonable inference. Brown v. Clewiston, 848 F.2d
1534, 1540 n.12 (11th Cir. 1988). “If reasonable minds could differ on the inferences arising
from undisputed facts, then a court should deny summary judgment.” Allen, 121 F.3d at 646.
ANALYSIS
I.

Section 1983 Claims
Plaintiff brings three claims pursuant to § 1983: (1) a false imprisonment claim against
5

defendant Looney; (2) a malicious prosecution claim against defendants Looney and the City;
and (3) a “negligence in hiring, training, supervision and retention” claim against defendants
Roper and the City. (Doc. 1 at 4-7).7 The court will first address plaintiff’s claims against the
City before addressing those claims against Roper and finally the claims against Looney.
A.

The City of Birmingham

Plaintiff’s Complaint raises two § 1983 claims against the City – a claim for malicious
prosecution and a claim for negligence in hiring, training, supervision, and retention. As a
preliminary matter, plaintiff failed to respond to defendants’ Motion for Summary Judgment as
to the claims against the City. (Doc. 57). By not responding, plaintiff abandoned his § 1983
claims against the City. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 971 n. 36 (11th
Cir. 2008) (“[Plaintiff] did not defend the claim on summary judgment; he thus abandoned it.”);
Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th
Cir. 1994) (holding that claims not addressed in response to motion for summary judgment are
deemed abandoned).
However, even assuming plaintiff had not abandoned his claims against the City, the City
would still be entitled to summary judgment as to the § 1983 claims. It is well settled that a
municipality cannot be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior,
7

As addressed in more detail below, a municipality cannot be held liable for the actions of its employees.
Rather, to hold a municipality liable under § 1983, a plaintiff must show that his injuries were caused by a policy or
custom of the City. However, “[i]n limited circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government
policy for purposes of § 1983.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). Thus, the court can only
assume that by including a count for “Negligence in Hiring, Training, Supervision and Retention by Roper and
Birmingham,” plaintiff sought to include language seeking to hold Roper and the City liable under § 1983 for the
claims of false imprisonment and malicious prosecution. (See Doc. 1 at ¶ 43) (“The foregoing acts, omission, and
systematic deficiencies are policies and customs of defendants, Roper and Birmingham, and such deficiencies
cause[d] its police officers to be unaware of proper rules for arrest and imprisonment, all with the foreseeable results
that officers are more likely to engage in false arrests, imprisonments and malicious prosecutions.”)

6

meaning that “a municipality cannot be held liable solely because it employs a tortfeasor.”
Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658, 691 (1978)(emphasis in original).
Rather, before a municipality can be held accountable for the conduct of a police officer, a
plaintiff must show that the execution of the local government’s official “policy” or “custom”
was the cause of the injury. Id. at 694. In other words, “[a] local government may be held liable
under § 1983 only for acts for which it is actually responsible, ‘acts which the [local government]
has officially sanctioned or ordered.’” Turquitt v. Jefferson Cnty, 137 F.3d 1285, 1287 (11th Cir.
1998) (citing Pembarr v. City of Cincinatti, 475 U.S. 469, 479–480 (1986)).
Here, plaintiff has not offered any evidence that the City of Birmingham has any policy or
ordered any unlawful act related to the alleged false imprisonment and malicious prosecution of
plaintiff. Further, there is no evidence that establishes a causal link between any policy or failure
to train or enforce its policies by the City of Birmingham and plaintiff’s imprisonment and
subsequent prosecution. Accordingly, the City of Birmingham cannot be held liable on
plaintiff’s claims under § 1983, and thus, summary judgment for the § 1983 claims against the
City of Birmingham is due to be granted in favor of the City.
B.

Chief Roper

Plaintiff also claims that Roper, Chief of Police of the City of Birmingham, was negligent
in the hiring, training, supervision, and retention of Officer Looney. (Doc. 1 at 6). Like with the
City, plaintiff failed to respond to these claims; thus, they are abandoned. However, even if the
claim was not waived, it fails as a matter of law because there is no liability for supervisory
officials based on respondeat superior or vicarious liability. Hardin v. Hayes, 957 F.2d 845, 849
(11th Cir. 1992). A supervisory official is not liable for an injury that results from his failure to
7

train subordinates unless his “failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” Popham v. City of Talledega, 908 F.2d 1561,
1565 (11th Cir. 1990). Thus, the question here is whether plaintiff can show that Roper failed to
train the officers and that this failure to train amounted to deliberated indifference of the rights of
others. Plaintiff shows no evidence of either. The claim of negligence in hiring, training,
supervision, and retention by Roper is, therefore, due to be dismissed and summary judgment as
to this claim is due to be granted.
C.

Officer Looney

Plaintiff claims that Officer Looney violated his constitutional rights by falsely
imprisoning and maliciously prosecuting him. (Doc. 1 at 4–5). Defendants moved for summary
judgment on each claim, arguing both that plaintiff’s claims fail on the merits and that Looney is
entitled to qualified immunity.
1.

False Imprisonment

Plaintiff argues that Looney deprived him of liberty without due process of law, in
violation of the Fourth and Fourteenth Amendments, when she detained him in a patrol car, at the
hospital, and in jail for a day. (Doc. 1 at 4). “A § 1983 claim of false imprisonment requires a
showing of common law false imprisonment and a due process violation under the Fourteenth
Amendment.” Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009) (citations omitted). The
required elements of a common law false imprisonment claim are: an intent to confine, an act
resulting in confinement, and the victim’s awareness of the confinement. Id. (citations omitted).
“The Fourteenth Amendment Due Process Clause includes the ‘right to be free from continued
detention after it was or should have been known that the detainee was entitled to release.’” Id.
8

(citations omitted).
There is no question that the common law elements of false imprisonment are met here –
plaintiff was arrested and confined. Clearly there was an intent to do so, an act resulting in the
confinement, and plaintiff was obviously aware of said confinement. Thus, the question that
remains before the court is whether plaintiff was detained after “it was or should have been
known that the detainee was entitled to release.” Id. Here, the question turns on whether the
initial arrest was proper and, if so, whether Looney later discovered that “the probable cause
which formed the basis of the arrest was unfounded.” See Strickland v. City of Dothan, 399 F.
Supp. 2d 1275, 1291 (M.D. Ala. 2005).
“In order to prevail on a section 1983 claim alleging that his warrantless arrest was
unconstitutional, a plaintiff has the burden at trial to prove the absence of probable cause.”
Walker v. Briley, 140 F. Supp. 2d 1249, 1257 (N.D. Ala. 2001). Probable cause to arrest an
individual “exists when law enforcement officials have facts and circumstances within their
knowledge sufficient to warrant a reasonable belief that the suspect had committed or was
committing a crime.” United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). Whether
a particular set of facts gives rise to probable cause or arguable probable cause to justify an arrest
for a particular crime depends, of course, on the elements of the crime.” Crosby v. Monroe
Cnty., 394 F.3d 1328, 1333 (11th Cir. 2004). Plaintiff was arrested for violating Birmingham
City Code § 12-10-9 (1980), which states:
(a)

It shall be unlawful for any person to drink or have in open or unconcealed
possession or custody for drinking any liquor or wine, at or in any public
place in the city other than a licensed liquor place, which shall include
outdoor cafes authorized for the sale of alcoholic beverages by resolution
of the city council.
9

(b)

It shall be unlawful for any person to drink, or have in open or
unconcealed possession or custody for drinking, any malt beverage or
brewed beverage at or in any public place in the city other than a licensed
beer place or licensed liquor place, which shall include outdoor cafes
authorized for the sale of alcoholic beverages by resolution of the city
council.

Birmingham City Code § 12-10-9 (1980) (as amended by Ord. No. 91-103, 5/28/91). Thus, the
question is whether Looney had probable cause to believe that plaintiff was drinking, or had in
his unconcealed possession, beer at or in a public place.8
As this case is before the court on defendants’ motion for summary judgment, the court
must consider the facts in the light most favorable to the plaintiff. In plaintiff’s version of the
events, he was standing inside the doorway of a residence holding a can of beer (plaintiff asserts
that he did not drink from the beer during his interaction with the police officers). (Doc. 56 at ¶
5). Plaintiff contends he never stepped on the front porch while talking to the officers and that at
all times he “remained inside of the doorway” to the house. (Id. at ¶ 12). Because plaintiff never
left the confines of the house, he could not have been considered by defendant Looney to be in
public.9 The ordinance only criminalizes drinking any malt or brewed beverage “at or in any
8

It is undisputed that the alcoholic beverage in question was a beer.

9

Defendants assert that if plaintiff had stepped on to the front porch he would have been in public. (Doc.
54 at 22). This contention is arguably supported by Alabama law, which the Alabama Court of Criminal Appeals
summarized in Schultz v. State, 437 So. 2d 670 (Ala. Crim. App. 1983): “Compare Warren v. City of Auburn, 337
So.2d 1319 (Ala. 1976) (the defendant drinking beer in yard of his apartment house was in a “public place”, for
purposes of public intoxication ordinance, because he and his beer can could be observed from a public street); Lee
v. State, 136 Ala. 31, 33 So. 894 (1903) (dice players forty yards from highway were in a “public place”, within the
meaning of gaming statute, because their activities were visible to persons traveling the highway); and Henderson v.
State, 59 Ala. 89 (1877) (gamblers in bushes on edge of field forty yards from road were in a “public place” because
they were in view of a path used by schoolchildren); with Smith v. State, 23 Ala. 39 (1853) (hollow located 100-115
yards from main road and not visible from highway was not a “public place”); Taylor v. State, 22 Ala. 15 (1853)
(field surrounded by forest one mile from highway not a “public place” because not visible from public roadway);
and Bythwood v. State, 20 Ala. 47 (1852) (hollow in the woods 400 yards from highway and out of sight not a
“public place”). Id. at 673.
However, accepting plaintiff’s version of events as true, plaintiff was not on the front porch, rather, the facts

10

public place.” Birmingham City Code § 12-10-9(b). Thus, under plaintiff’s version of the
events, defendant Looney did not have probable cause for the arrest because she could not have
reasonably believed that plaintiff was committing the crime of drinking in public. Of course,
whether plaintiff stepped outside of the house is disputed by defendants. (Doc. 54-2) (“[T]he
defendant staggered on to the front porch drinking a 12 oz 211 beer.”), (Doc. 54-4) (“Antonio
James opened the door and came outside the house onto the porch.”). Plaintiff’s actions prior to
his arrest are clearly in dispute. However, viewing the facts in the light most favorable to
plaintiff, defendant Looney lacked probable cause to arrest plaintiff, which means plaintiff’s
subsequent detention was in violation of his rights. Accordingly, defendant Looney is not
entitled to summary judgment on the merits of the false imprisonment claim.10
2.

Malicious Prosecution

Plaintiff’s claim for malicious prosecution alleges that Looney disregarded plaintiff’s
right to be free from unreasonable, unwarranted prosecution. (Doc. 1 at 5). “To establish a
federal malicious prosecution claim under § 1983, the plaintiff must prove a violation of his
Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the
common law tort of malicious prosecution.” Wood, 323 F.3d at 881 (emphasis in original).

show that plaintiff was inside the doorway of the home at all times. See ALA. CODE. § 13A-11-1 (“PUBLIC PLACE.
A place to which the public or a substantial group of persons has access, and includes but is not limited to highways,
transportation facilities, schools, places of amusement, parks, playgrounds and hallways, lobbies and other portions
of apartment houses not constituting rooms or apartments designed for actual residence; provided, that no private
dwelling and no place engaged for a private gathering is included within the meaning of public place with respect to
any person specifically invited therein.”). To the extent plaintiff may have been visible from the street while the
door was open and he was interacting with the police, that circumstance was initiated by the police when they
knocked on the door and cannot constitute being willingly in public. See Martin v. State, 17 So. 2d 427 (Ala. Ct.
App. 1944).
10

Looney also argues that she is entitled to qualified immunity on this claim, which the court will address

below.

11

Plaintiff must establish the following elements to support a claim of malicious prosecution: “(1)
a criminal prosecution instituted or continued by the present defendant; (2) with malice and
without probable cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused
damage to the plaintiff accused.” Wood, 323 F.3d at 882. “In an action for malicious
prosecution after an acquittal, a plaintiff must show that the criminal action was begun without
probable cause for charging the crime in the first place.” Hartman v. Moore, 547 U.S. 250, 258
(2006).
Here, plaintiff satisfies three of the four elements of a malicious prosecution claim. It is
undisputed that defendant Looney instituted a criminal prosecution against him (doc. 1 at ¶
27–32), (see Doc. 54 at 10-11), that the prosecution was terminated in plaintiff’s favor. (Doc. 56
at ¶ 24), and that the prosecution against plaintiff caused damage to him in the form of a lost job
and financial loss, physical pain, and emotional distress. (Id. at ¶¶ 25-26). The only element in
dispute is whether the prosecution was instituted with malice and without probable cause. This
is further limited by the fact that Defendants only argue the issue of whether there was probable
cause. (Doc. 54 at 10-11). Thus, the question here is whether defendant Looney had probable
cause to institute the criminal prosecution. The court has already established that, under
plaintiff’s version of the events, there was no probable cause for the arrest. (See § I.C.1).
Accordingly, it follows that there was no probable cause for the prosecution. Absent a showing
that there was probable cause for the prosecution, defendant Looney cannot establish she is
entitled to judgment as a matter of law on the merits of the malicious prosecution claim.
3.

Qualified Immunity

In addition to arguing that defendant Looney is entitled to summary judgment on the
12

merits of the two constitutional claims, defendants also argue that she is entitled to qualified
immunity. (Doc. 54 at 9). Qualified immunity “offers complete protection for government
officials sued in their individual capacities if their conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). To receive qualified immunity, Looney must first prove that she “was acting within the
scope of [her] discretionary authority when the allegedly wrongful acts occurred.” Wood v.
Kesler, 323 F.3d 872, 877 (11th Cir. 2003), cert. denied, 540 U.S. 879 (2003).
Once defendants have asserted that defendant Looney is entitled to qualified immunity,
the burden shifts to the plaintiff to show: (1) that the officer violated a constitutional right and (2)
that this right was clearly established at the time. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002). “The threshold inquiry a court must undertake in a qualified immunity analysis is whether
plaintiff’s allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730,
736 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Under plaintiff’s version of the

facts, if there would have been a violation of a constitutional right, the next step “is to ask
whether the right was clearly established.” Saucier, 533 U.S. at 201.
It is uncontested that Looney was acting within the scope of her discretionary authority
when she arrested plaintiff. (See Doc. 57). Thus, the preliminary question before the court is
whether plaintiff’s allegations, if true, establish a constitutional violation. The central issue to
both claims is whether there was probable cause to arrest plaintiff. See Atterbury v. City of
Miami Police Department, 322 Fed. App’x 724, 727 (11th Cir. 2009). As established above, the
court finds that under the facts asserted by plaintiff, defendant Looney did not have probable
13

cause to arrest plaintiff. However, “[a]bsent probable cause, an officer is still entitled to
qualified immunity if arguable probable cause existed.” Case v. Eslinger, 555 F.3d 1317, 1327
(11th Cir. 2009). In other words, Looney is entitled to qualified immunity if she had arguable
probable cause for the arrest. Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004).
Arguable probable cause is present where “reasonable officers in the same circumstances and
possessing the same knowledge as the Defendant[] could have believed that probable cause
existed to arrest Plaintiff.” Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990).
The question here is whether a reasonable officer would believe that probable cause
existed to arrest a person for drinking in public when the person in question was holding a beer
inside a private residence. The court finds that a reasonable officer would not believe there was
probable cause in such a situation. As addressed in detail above, no reasonable officer would
believe that actions taken inside of a private residence were in public. Thus, there was no
arguable probable cause. Because there was no arguable probable cause under plaintiff’s version
of the events, plaintiff has established that were constitutional violations and the court must turn
to the next prong of the analysis, whether the rights that were allegedly violated were clearly
established.
“The relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Vinyard, 311 F.3d at 1350 (emphasis omitted) (internal quotation marks omitted).
“This is not to say that an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful ..., but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting
14

Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In addressing whether a violation was clearly established, the Eleventh Circuit has stated
the following:
We recognize three sources of law that would put a government official on notice
of statutory or constitutional rights: specific statutory or constitutional provisions;
principles of law enunciated in relevant decisions; and factually similar cases
already decided by state and federal courts in the relevant jurisdiction. See Hope,
536 U.S. at 741, 122 S. Ct. at 2516 (“[G]eneral statements of the law are not
inherently incapable of giving fair and clear warning, and in other instances a
general constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though the very action in
question has [not] previously been held unlawful.” (alteration in original) (internal
quotation marks omitted)); Marsh v. Butler County, Ala., 268 F.3d 1014, 1032 n.
9 (11th Cir. 2001) (en banc) (“[P]reexisting case law, tied to the precise facts, is
not in every situation essential to establish clearly the law applying to the
circumstances facing a public official so that a reasonable official would be put on
fair and clear notice that specific conduct would be unlawful in the faced, specific
circumstances.”); see also Vinyard v. Wilson, 311 F.3d 1340, 1351-52 (11th Cir.
2002) (explaining the relationship of the three sources of law in an excessive force
case). The more general the statement of law is that puts the official on notice, the
more egregious the violation must be before we will find that the official is not
entitled to qualified immunity. See Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.
Ct. 596, 599, 160 L. Ed. 2d 583 (2004) (per curiam) (finding, in a Fourth
Amendment excessive force case, that although “in an obvious case, [general
tests] can ‘clearly establish’ the answer, even without a body of relevant case
law,” reference to specific cases is necessary where the question is closer); Hope,
536 U.S. at 740-41, 122 S. Ct. at 2516 (“This is not to say ... that the single
warning standard points to a single level of specificity sufficient in every instance
.... [When considering] a general rule ... a very high degree of prior factual
particularity may be necessary.” (internal quotation marks omitted)); Vinyard, 311
F.3d at 1351-52 (requiring more obvious violations of rights the more generally
the rights are framed).
Goebert v. Lee County, 510 F.3d 1312, 1330 (11th Cir. 2007)
Here, there is no question that it was obvious from the text of the ordinance at issue
Birmingham City Code § 12-10-9 only prohibits drinking, or having in open or unconcealed
possession or custody for drinking, any malt or brewed beverage, in a public place. The language
15

“public place” obviously excludes a private residence. See ALA. CODE. § 13A-11-1. To say
otherwise would be absurd. No reasonable officer would think that drinking or holding a beer in
a private residence constitutes drinking in public. Accordingly, it was clearly established at the
time of the arrest that drinking in a private residence does not provide probable cause for
drinking in public. Thus, defendant Looney is not entitled to qualified immunity on the § 1983
claims.
II.

State Claims
The remaining claims are all based in state law: a claim for assault and battery against

defendant Looney11, a claim for false arrest against defendant Looney, and a claim for malicious
prosecution against defendants Looney and the City. (Doc. 1 at 8-9). As a preliminary matter,
because plaintiff failed to respond to the motion for summary judgment as to the malicious
prosecution claim against the City, that claim is deemed abandoned and the City is entitled to
summary judgment on that claim. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 995,
971 n. 36 (11th Cir. 2008). Having addressed the claim against the City, the court now turns to
the remaining claims against defendant Looney. Defendant Looney argues she is entitled to
discretionary function immunity under ALABAMA CODE § 6-5-338 on the assault and battery
claim and entitled to summary judgment on the merits of the false arrest and malicious
prosecution claims. The court will address each argument in turn.

11

The court has serious doubts about whether Count V of plaintiff’s Complaint (doc. 1) actually states a
claim against defendant Looney. (Doc. 1 at 7). Specifically, the title of the claim states “Count V: Pendent State
Claim for Assault and Battery by Defendant Turner or Robinett.” There is no reference to defendant Looney in that
count except for in paragraph 48 when plaintiff alleges, “Defendant, Looney, Turner and Robinett, assaulted and
battered plaintiff by hitting him with a Taser.” (Doc. 1 at ¶ 48). However, because defendants addressed this claim
at length in their motion for summary judgment (doc. 54 at 18-20), the court will also address it.

16

A.

Discretionary Function Immunity on the Assault and Battery Claim

Unlike the other claims before the court, plaintiff’s claim for assault and battery stems not
from his arrest, but from the fact that prior to being arrested, Defendant Looney hit plaintiff with
a Taser. (Doc. 56 at ¶¶ 6-7). Defendants argue that Officer Looney is entitled to discretionary
function immunity under ALABAMA CODE § 6-5-338 (1975). (Doc. 54 at 15-24). The Eleventh
Circuit recently summarized Alabama’s law concerning immunity for police officers as follows:
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 their discretionary law
enforcement duties. 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).”). So for our purposes, the question of whether
City police officers [] receive immunity for Plaintiffs' state-law claims depends on
application of Cranman’s state-agent immunity test.
The Alabama Supreme Court established a burden-shifting framework for
application of the state-agent immunity test. A defendant initially bears the
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
17

beyond his or her authority.” Id.
Brown v. City of Huntsville, Ala., 608 F.3d 724, 740-41 (11th Cir. 2010)
Here, plaintiff does not dispute that when defendant Looney subdued plaintiff with the
Taser that she was performing a discretionary function in the line and scope of her law
enforcement duties. (See Doc. 57 at 7-9). Rather, plaintiff argues that Looney “acted in bad faith
by demanding entry without a warrant,” “acted beyond [her] authority when [she] arrested James
for possessing an alcoholic beverage in a residence,” and “acted under a mistaken interpretation
of the law when [she] thought that a person responding to a knock at a door is in the public.” (Id.
at 9). However, none of these arguments has anything to do with whether defendant Looney
acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority when she hit
plaintiff with the Taser. Further, upon independent review of the facts presented by plaintiff, the
court finds there is not sufficient evidence to show that defendant Looney acted in such a manner
as to strip her of immunity. Specifically, the record --viewed in the light most favorable to
plaintiff--shows that officers Looney and Foster received a report that a felony suspect might be
at 7808 Division Avenue; that plaintiff answered the door to 7808 Division Avenue after Officer
Foster knocked; that Officer Foster told plaintiff twice to get down, but plaintiff did not get
down; that Officer Foster told defendant Looney to “hit him”; to which plaintiff responded,
“what do you mean, hit me?”; and finally that defendant Looney hit plaintiff with the Taser.
Simply put, there is nothing in the above series of events to show that defendant Looney acted
willfully, maliciously, fraudulently, in bad faith, beyond her authority, or under a mistaken
interpretation of law. Thus, she is entitled to discretionary function immunity with respect to the
assault and battery claim. Because defendant Looney has immunity with respect to this claim,
18

summary judgment is due to be granted in her favor.
B.

False Arrest and Malicious Prosecution Claims

Like the federal claims, both state claims turn on whether defendant Looney had probable
cause to arrest plaintiff.12 See Delchamps, Inc. v. Bryant, 738 So.2d 824, 831–32 (Ala. 1999),
Franklin v. City of Huntsville, 670 So.2d 848, 852 (Ala. 1995). “Alabama’s standard for the
existence of probable cause is the same as the federal standard.” Walker, 140 F. Supp. 2d at
1262 (citing Nesmith v. Alford, 318 F.2d 110, 122 (5th Cir. 1963)). Thus, the court’s analysis
with respect to whether there was probable cause for the arrest with respect to plaintiff’s § 1983
claims, applies here. Accordingly, the court finds there is an issue of fact as to whether plaintiff
voluntarily stepped outside of the house, thus precluding a finding that defendant Looney had
probable cause to arrest plaintiff. Accordingly, defendant Looney is not entitled to summary
judgment on these claims.13

12

To prove that defendant Looney maliciously prosecuted plaintiff, plaintiff would have to show, among
other things, that the prosecution was instituted with malice and without probable cause. (Delchamps, Inc. v. Bryant,
738 So.2d 824, 831–32 (Ala. 1999)). However, in their motion for summary judgment, defendants did not address
the malice requirement. (Doc. 54 at 23)(“If probable cause is shown to exist, then all the malice in the world is
irrelevant to the claim.”). Accordingly, the court must find that defendants conceded the malice requirement for
purposes of summary judgment.
13

It is not clear from defendants’ brief whether they are also arguing that Looney is entitled to summary
judgment because she has discretionary function immunity for the false arrest and malicious prosecution claims.
Nevertheless, any such assertion must fail. It is established that “[m]alice is an inference of fact, and it may be
inferred from a lack of probable cause or from mere wantonness or carelessness if the actor, when doing the act,
knows it to be wrong or unlawful.” Walker, 140 F. Supp. 2d at 1263 (citing Bryant, 738 So.2d at 833). Notably,
“[p]ersonal ill will or a desire for revenge is not essential to the existence of malice.” Delchamps, Inc. v. Larry, 613
So. 2d 1235, 1239 (Ala. 1992). Because malice can be inferred from the facts or from a lack of probable cause, that
inference of malice “may be rebutted by evidence showing that the defendant acted in good faith.” Bryant, 738
So.2d at 833. Thus, this court can infer malice from the lack of probable cause plaintiff has established at summary
judgment. Further, defendants have not rebutted this inference by showing that Officer Looney was acting in good
faith. Consequently, the inference of malice precludes a finding that Officer Looney is entitled to discretionary
function immunity on this claim. See also, Brown v. City of Huntsville, Ala., 608 F.3d at 41 (finding that officers are
not entitled to discretionary function immunity when the officers did not have arguable probable cause for an arrest).

19

CONCLUSION
For the foregoing reasons, defendants’ Motion for Summary Judgment (doc. 53) is due to
be granted in part and denied in part. All claims against the City and defendant Roper are due to
be dismissed with prejudice. Additionally, Count V is also due to be dismissed with prejudice.
The following claims remain: (Count II) false imprisonment against Looney pursuant to § 1983;
(Count III) malicious prosecution against Looney pursuant to § 1983; (Count VI) the state law
claim for false arrest against Looney; and (Count VII) the state law claim for malicious
prosecution against Looney.
DONE, this 19th day of February, 2013.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

20