Glasscox v. Argo, City of et al

Filing 35

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/27/16. (SAC )

FILED
2016 Sep-27 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

BOB GLASSCOX,
Plaintiff,
v.
CITY OF ARGO; OFFICER DAVID
RAMSAY MOSES, in his Individual
Capacity,
Defendants.

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CIVIL ACTION NO:
2:15-cv-1487-KOB

MEMORANDUM OPINION
Plaintiff Bob Glasscox sued Argo Police Officer David Moses for using excessive force
during an arrest in violation of his constitutional rights and for assault and battery under state
law. Officer Moses responded by claiming he was entitled to qualified immunity and moved to
dismiss the complaint. (Doc. 19). Officer Moses attached video of the incident from his body
camera as an exhibit to his motion. Because Officer Moses's motion presented material outside of
the complaint, the court converted the motion into one for summary judgment. See (Doc. 25).
The court DENIES the motion because questions of fact exist about whether Officer Moses used
excessive force.
I.

STANDARD OF REVIEW
Summary judgment allows a trial court to decide cases when no genuine issues of

material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must determine

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two things: whether any genuine issues of material fact exist, and whether the moving party is
entitled to judgment as a matter of law. Id.
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
In response, the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party must “go beyond the pleadings and by [its] own
affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting
Fed. R. Civ. P. 56(e)) (emphasis added).
The court must “view the evidence presented through the prism of the substantive
evidentiary burden,” to determine whether the non-moving party presented sufficient evidence on
which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254. The
court must refrain from weighing the evidence and making credibility determinations because
these decisions belong to a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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Further, all evidence and inferences drawn from the underlying facts must be viewed in
the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co., 193
F.3d 1274, 1282 (11th Cir. 1999). After both parties have addressed the motion for summary
judgment, the court must grant the motion only if no genuine issues of material fact exist and if
the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.
II.

STATEMENT OF THE FACTS
This case arises out of a confrontation between Mr. Glasscox and Officer Moses on July

24, 2014.1 The parties do not dispute the fundamental facts of this case, but they greatly dispute
their interpretation.
On that day, Mr. Glasscox was driving erratically on Interstate 59 South near the city of
Argo. Mr. Glasscox is a Type I diabetic, and his doctor stated in an affidavit that he believed was
suffering from a hypoglycemic episode during the incident. The Argo City Police dispatched
Officer Moses to intercept Mr. Glasscox after they received reports of a reckless driver on the
freeway. Officer Moses located Mr. Glasscox's vehicle and engaged his emergency lights and
sirens, signaling for Mr. Glasscox to pull over.
Mr. Glasscox did not comply. Officer Moses pursued Mr. Glasscox for nearly five miles.
During the pursuit, Mr. Glasscox swerved his vehicle, often straddling the shoulder of the road
and the median. Eventually, Mr. Glasscox drove completely onto the median, crossing towards
the northbound side of the interstate. The vehicle stopped right alongside the northbound lefthand lane.

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These facts are stated in the light most favorable to Mr. Glasscox, the non-movant. The
facts proven at trial may be different.
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Officer Moses exited his police car and approached Mr. Glasscox's vehicle with his
weapon drawn. Although Officer Moses had called in the vehicle's license plate number, he had
not received any information concerning Mr. Glasscox's identity or whether any outstanding
warrants for his arrest.
Officer Moses opened Mr. Glasscox's driver side door and ordered Mr. Glasscox to lift
his hands, unbuckle his seatbelt, and get out of the car. Mr. Glasscox raised his hands but did not
comply with the other two instructions. Mr. Glasscox told Officer Moses, “I'm sorry, man.”2
Officer Moses repeated his instruction to unbuckle the seatbelt and get out of the car. Mr.
Glasscox unbuckled his seatbelt. Once again, Officer Moses told Mr. Glasscox to “get out.” Mr.
Glasscox responded, “I'm going to get out. Shut up . . ..” Officer Moses then fired his taser,
shooting the electric probes into Mr. Glasscox's body. Officer Moses states he deployed his taser
because Mr. Glasscox's right arm reached out of view towards the middle seat console and he
feared for his own safety.
A tase conveys electricity into the target's body for five seconds. Mr. Glasscox attempted
to pull the probes out of his body. Officer Moses ordered him to “stop it” and fired his taser a
second and third time, during which he warned Mr. Glasscox that he will “give it to him again”
and once again ordered him out of the car. Officer Moses testified he tased Mr. Glasscox again
because he was “actively resisting my ability to take him into custody.” (Doc. 31-1 at 80). Officer
Moses also testified that he could see Mr. Glasscox's hands after the first tase.
Officer Moses then reached into the vehicle and grabbed Mr. Glasscox's wrist. Officer

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Mr. Glasscox also says something that is difficult to decipher. The parties agree that Mr.
Glasscox said either “God damn, man” or “God darn, man.”
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Moses repeated his instruction for Mr. Glasscox to get out of the car and Mr. Glasscox said, “I
will.” Approximately two seconds later, Officer Moses again ordered Mr. Glasscox to “stop it.”
Officer Moses appears to place the taser against Mr. Glasscox’s leg to administer a contact tase.
Mr. Glasscox placed his hand on the taser as Officer Moses tased him for a fourth time. Officer
Moses told him to “stop fighting” and to “get out.” Officer Moses testified that he tased Mr.
Glasscox a fourth time because he “was trying to take the taser out of my hand when it was
pressed up against his leg.” (Doc 31-1 at 81). Mr. Glasscox contends that he was not actively
resisting arrest, but that his physical reactions were a natural reaction to being tased.
Mr. Glasscox then said, “Okay,” and exited the vehicle as Officer Moses was holding Mr.
Glasscox's left wrist. The total time elapsed from when Officer Moses opened the vehicle door
until Mr. Glasscox exited was approximately one minute. Officer Moses then took Mr. Glasscox
into custody without incident.
Officer Moses cited Mr. Glasscox for reckless driving, eluding a police officer, and
resisting arrest. An Argo Municipal Court convicted Mr. Glasscox on all three offenses. Mr.
Glasscox has appealed his conviction to Jefferson County Circuit Court.
III.

DISCUSSION
A.

§ 1983 Excessive Force Claim

Officer Moses argues that he is entitled to qualified immunity from Mr. Glasscox's §
1983 claim. Qualified immunity protects government officials performing discretionary, jobrelated functions from litigation unless the official violates “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S.
730, 739 (2002). Qualified immunity is designed to “allow government officials to carry out their
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discretionary duties without the fear of personal liability or harassing litigation, protecting from
suit all but the plainly incompetent or one who is knowingly violating the federal law.” Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citation omitted).
Whether an official is entitled to quailed immunity “is a question of law to be decided by
the court.” Willingham v. Loughnan, 261 F.3d 1178, 1184 (11th Cir. 2001). To receive qualified
immunity, a government official “must first prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.” Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002). If the officer establishes that he has acting within his discretionary
authority, the burden then shifts to the plaintiff to demonstrate that the officer is not entitled to
qualified immunity. Lee, 284 F.3d at 1194.
A two-prong test determines whether qualified immunity is appropriate. See Saucier v.
Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that the
Saucier analysis may be performed in any order). First, the court considers whether the facts,
taken in the light most favorable to the plaintiff, show that the officer’s conduct violated the
plaintiff's constitutional rights. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citing
Saucier, 533 U.S. at 201). Second, the court asks whether the plaintiff's rights were clearly
established under the law. Gonzalez, 325 F.3d at 1234.
Mr. Glasscox does not dispute that Officer Moses was acting within his discretionary
authority. Therefore, Mr. Glasscox bears the burden to show that Officer Moses violated his
clearly established constitutional rights.
1.

Constitutional Violation

The Fourth Amendment provides the right to be “free from excessive force in the course
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of an investigatory stop or other ‘seizure’ of the person.” Kesinger v. Herrington, 381 F.3d 1243,
1248 (11th Cir. 2004). Once the plaintiff establishes that a seizure occurred, the next inquiry is
“whether the force used to effectuate the seizure was reasonable.” Beshers v. Harrison, 495 F.3d
1260, 1266 (11th Cir. 2007). An objective standard governs whether an officer has used
excessive force; the court asks what a reasonable officer would have done under the same
circumstances. Kesinger, 381 F.3d at 1248 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).
The right to make an arrest “carries with it the right to use some degree of physical
coercion or threat.” Graham, 490 U.S. at 396. To determine whether an officer's use of force was
reasonable, a court must carefully balance the intrusion on the individual's rights against the
government's interest Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). This “careful
balancing” requires the court to consider such factors as the “severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Id. (colloquially referred to
as the “Graham factors”); see also Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)
(holding that in determining if force was reasonable, courts must examine the need for the
application of force, the proportionality of the need and amount of force used, and the extent of
the injury inflicted).
The parties do not dispute that a seizure occurred, but Officer Moses argues that the video
of the incident from his body camera clearly establishes that he did not use unreasonable force
during the arrest. When “an accurate video recording completely and clearly contradicts a party's
testimony, that testimony becomes incredible.” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th
Cir. 2013) (emphasis added). Officer Moses contends that the video makes Mr. Glasscox's
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allegations of excessive force implausible.
The video will simply not bear the weight Officer Moses places on it. It raises more
questions than answers, and those questions are properly put to a jury. See Ayers v. Harrison, No.
14-12250, 2016 WL 3018690, at *2 (11th Cir. May 26, 2016) (affirming denial of judgment as a
matter of law when“[e]ven with the video, the jury still had to make numerous and critical factual
findings, including some based on credibility choices”). Here, a jury is necessary to make factual
findings about the threat Mr. Glasscox posed, whether he was resisting arrest, and whether the
force Officer Moses chose to deploy was proportionate and reasonable. None of the Graham
factors weigh unequivocally in Officer Moses's favor.
First, the court considers the seriousness of the underlying offense. Mr. Glasscox's
conduct was undoubtedly reckless and dangerous, but Officer Moses only charged him with
misdemeanors under Alabama law. See Ala. Code. § 13A-10-41; § 32-5A-190; § 32-5A-193.
However, “the government has a significant interest in enforcing the law on its own terms.”
Buckley v. Haddock, 292 F. App'x 791, 794 (11th Cir. 2008). Accordingly, the first factor is a
stalemate. It supports neither Officer Moses nor Mr. Glasscox.
Next the court considers whether Mr. Glasscox posed a threat to the safety of Officer
Moses or others. Officer Moses argues that Mr. Glasscox's driving “posed a lethal threat to
himself, his fellow motorists, and [to himself].” (Doc. 19-1 at 8). However, viewing the facts in
the light most favorable to Mr. Glasscox, that threat ceased, or at least diminished, when Mr.
Glasscox stopped his vehicle. Officer Moses's use of force was not aimed at ending a dangerous
highway pursuit.

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Officer Moses testified that he administered the first tasing because Mr. Glasscox reached
his right hand out of view. However, in the three additional tasings, Officer Moses could see Mr.
Glasscox's hands. The threat posed to Officer Moses subsided over the course of the incident, but
he continued to apply the same force. A jury could find such conduct unreasonable. See Fils v.
City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (“[R]esisting arrest without force does
not connote a level of dangerousness that would justify a greater use of force.”). Therefore,
taking the facts in the light most favorable to Mr. Glasscox, the second factor supports a finding
that Officer Moses used excessive force.
Finally, the court considers whether Mr. Glasscox was resisting arrest or otherwise
attempting to elude capture. While Officer Moses correctly observes that Mr. Glasscox did not
immediately comply with his instruction to exit the vehicle, Mr. Glasscox did comply with his
order to raise his hands and unbuckle his seatbelt. Notably, Mr. Glasscox was being tased for
approximately one-third of the time from when Officer Moses opened the door until Mr.
Glasscox exited the vehicle.
A reasonable jury could draw a number of conclusions from these facts. A jury could
draw a reasonable inference that Mr. Glasscox simply did not have the time to comply with the
orders Officer Moses was issuing. A jury may also draw a reasonable inference that Mr.
Glasscox's noncompliance was due to confusion or physical inability because he was being tased
rather than belligerence, and did not warrant a repeated use of force. The simple truth is that the
video does not settle the question of whether Officer Moses's actions were objectively
reasonable. The video does not completely and clearly discredit Mr. Glasscox's allegations.

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Therefore, the third factor, viewing the facts in the light most favorable to Mr. Glasscox,
supports finding that Officer Moses used excessive force.
The extent of the plaintiff's injury also factors into the analysis. See Draper v. Reynolds,
369 F.3d 1270, 1278 (11th Cir. 2004) (considering whether a taser inflicted serious injury as
relevant to whether the force utilized by the officer was proportional and reasonable). Officer
Moses argues that the only injury Mr. Glasscox suffered was “bleeding allegedly from the
probes.” (Doc 19-1 at 9). However, Mr. Glasscox's physician testified that he “has become
severely depressed, anxious, and emotionally unstable” since the incident. (Doc 31-3 at 3). The
doctor referred Mr. Glasscox for treatment for Post-Traumatic Stress Disorder. As evidenced by
these competing characterization, the parties genuinely dispute the extent of Mr. Glasscox's
injuries.
Whether an officer used excessive force is “necessarily [a] fact specific” inquiry.
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). Accordingly, the court must
“slosh [its] way through the factbound morass of 'reasonableness.'” Scott v. Harris, 550 U.S. 372,
383 (2007). As another step in this journey, the court now considers how the facts of this case
compare to other Eleventh Circuit cases.
The Eleventh Circuit has found several instances where an officer's use of a taser was not
excessive force, but each case is distinguishable. For example, in Draper v. Reynolds, the
Eleventh Circuit held that an officer did not use excessive force when he administered a single
tase of an unrestrained suspect who was “hostile, belligerent, and uncooperative.” 369 F.3d at
1278. Here in contrast, Officer Moses deployed his taser multiple times in a short interval, and,

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viewing the facts in the light most favorable to Mr. Glasscox, on a suspect who was not hostile,
belligerent, or uncooperative.
In Mann v. Taser Int'l, Inc., the Eleventh Circuit held that an officer did not use excessive
force when he tased an arrested suspect multiple times in the back of a police car. 588 F.3d 1291,
1306 (11th Cir. 2009). The suspect had kicked out the back window of the car and threw herself
out of the car when officers opened the door. Id. at 1300. Such “violent” and “aggressive”
behavior demonstrated that the suspect was a threat to the officers and herself. Id. Here, Mr.
Glasscox's noncompliance was not of a violent or aggressive nature.
As evidence of the continuing threat Mr. Glasscox posed, Officer Moses points out that
Mr. Glasscox attempted to remove the probes from his chest, reached towards Officer Moses,
and held the taser when Officer Moses administered a contact tase. However, these actions could
be construed as natural reactions to being tased and not deliberate, willful acts of threatening
resistance. While bodily contact did occur, Mr. Glasscox appears limp, and does not seem to
offer physical resistance. A reasonable fact-finder could watch the video and conclude that Mr.
Glasscox's arm was flailing as a result of having just been tased rather than aggression towards
Officer Moses.
Mr. Glasscox was not restrained when Officer Moses tased him, and Circuit precedents
do “demonstrate that the point at which a suspect is handcuffed and poses no risk of danger to the
officer is often the pivotal point for excessive-force claims.” Mobley v. Palm Beach Cnt'y Sheriff
Dept., 783 F.3d 1347, 1356 (11th Cir. 2015) (internal citations omitted). However, this insight
does not mean that an officer is incapable of using excessive force prior to restraining and
neutralizing a suspect. The evidence here, taken in the light most favorable to Mr. Glasscox,
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demonstrates that Officer Moses used a disproportionate amount of force relative to the threat
Mr. Glasscox posed.
This case is factually more similar to the cases where the Eleventh Circuit has found that
a plaintiff's constitutional right to be free from excessive force was violated. For example, in
Oliver v. Fiorino, the Eleventh Circuit held that an officer who tased a person multiple times
utilized force that “was grossly disproportionate to any threat posed.” 586 F.3d 898, 907 (11th
Cir. 2009). The officer approached an apparently mental unstable man who was standing in the
median of a road. See id. at 902–03. The man was “very fidgety” but not belligerent with the
officer. Id. at 902. The officer tried to get the man to walk across the street away from traffic. Id.
at 903. The officer put his hand on the man's shoulder, who responded by backing away. Id. The
man stopped in a lane of traffic and “babbled incoherently.” Id. The officer tried to force the man
across the street, but he pulled away. Id. While holding onto the man's shirt, the officer tased the
man. Id. When the man tried to get up off the ground, the officer tased him again. Id.
Although the court acknowledged that the first tase arguably may have been justified, it
noted that “the officers did not merely shock [the suspect] and then attempt to engage him, arrest
him, or 'Baker Act' him,” but instead continued to tase him. Oliver, F.3d at 906. While being
tased, the suspect never “hit, kicked, punched, or threatened the officers.” Id. at 903. The court
concluded that the justification for the subsequent tasings was “minimal.” Id. at 906.
The facts in this case, although somewhat different, are analogous. While some
justification may have existed for the first tase because Officer Moses could not see what Mr.
Glasscox was reaching for with his right hand, that justification faded when Officer Moses could
see Mr. Glasscox's hands after the first tase. But Officer Moses continued to tase Mr. Glasscox,
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even though Officer Moses's hand was on Mr. Glasscox's wrist. Officer Moses testified that the
purpose of the tasing was to get Mr. Glasscox to comply with his order to exit the vehicle.
Although Officer Moses states that Mr. Glasscox was preventing him from taking him into
custody, the video does not show that to clearly be the case. Taking the facts in the light most
favorable to Mr. Glasscox, there is a genuine issue of material fact over whether tasing Mr.
Glasscox multiple times when he was not actively resisting was excessive force to accomplish
this objective.
A right of force does accompany the right to arrest. However, such a right is not
unqualified. Use of a taser is not excessive when use of other physical force or verbal commands
would have “escalated a tense and difficult situation into a serious physical struggle.” Draper,
369 F.3d at 1278. The video does not demonstrate completely and clearly that Officer Moses's
use of force was reasonably calculated to avoid such a conflict. In fact, a reasonable
interpretation of the events is that Officer Moses is the one who escalated the incident. In the
court's view, “a violation could be made out on a favorable view of the parties’ submissions.”
Gonzalez, 325 F.3d at 1234. Therefore, the question of whether Officer Moses's force was
reasonable under the circumstances is properly reserved for a jury.
2.

Clearly Established

For a right to be considered clearly established, the unlawfulness of the act must be
apparent “in the light of preexisting law.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).3

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Officer Moses does not appear to dispute that Mr. Glasscox's rights and the relevant law
are clearly established: “Since the Fourth Amendment contains a right to be free from excessive
force the analysis in this case turns on whether or not Officer Moses' conduct violated Glasscox's
right to be free from excessive force.” (Doc. 19-1 at 4).
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Apparent unlawfulness may be demonstrated in two ways. Fils, 647 F.3d at 1291. First, the court
determines whether the right was clearly established under the relevant case law at the time of the
incident. Id. A court considers whether a reasonable officer could have believed the conduct to be
lawful given the relevant precedents. Anderson, 483 U.S. at 641. The Supreme Court has
cautioned courts “not to define clearly established law at a high level of generality.” Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011).
Second, a right is also clearly established if the 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 officer], notwithstanding the lack of fact-specific case law.” Fils, 647 F.3d at
1291 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002)).
The Eleventh Circuit has found that an officer's repeated use of a taser constituted
excessive force with only minimal justification for the subsequent tasings. Oliver, 586 F.3d at
906. In Oliver, the Eleventh Circuit held that “it would be clear to every reasonable officer, even
in the absence of case law, that . . . repeatedly tasering . . . over a two-minute period without
warning . . . was excessive under the circumstances.” Id. The Eleventh Circuit made this decision
despite the fact that at the time, no decision had clearly established that disproportionate,
repeated tasering was excessive force. See Id. at 907 (“[T]he force employed was so utterly
disproportionate to the level of force reasonable necessary . . . any officer would have recognized
that his actions were unlawful.”) Given that the Oliver decision was established case law at the
time of the incident, a reasonable officer in Officer Moses's situation should have known that
utilizing a taser in the manner he did constituted excessive force under Circuit precedents.
B.

State Law Assault and Battery Claims
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Officer Moses argues that Mr. Glasscox's state law assault and battery claims are barred
under Alabama law by both the doctrines of state-agent immunity and peace-officer immunity.
Under the state-agent immunity doctrine, an agent of the state is immune from civil liability
when exercising judgment in enforcing the criminal laws of the state. See Ex parte Kennedy, 992
So. 2d 1276, 1280–81 (Ala. 2008). However, a state agent is denied immunity if he acted
“willfully, maliciously, fraudulently, in bad faith, beyond his . . . authority, or under a mistaken
interpretation of law.” Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000). These factors
compose what is often termed the “Cranman test.”
Officer Moses contends that his body camera video clearly establishes that he did not act
in such a manner. The court disagrees. As the court has already discussed, a genuine dispute of
material fact exists concerning whether Officer Moses utilized a proportionate and appropriate
amount of force in his arrest of Mr. Glasscox. Because a question of fact exists regarding
whether Officer Moses acted willfully or beyond his authority, he is not eligible for state-agent
immunity under Alabama law.
Even if Mr. Glasscox's claims are not barred by state-agent immunity, Officer Moses
argues they are precluded by the immunity afforded peace officers under Ala. Code § 6-5-338
(1975). Pointing to language in the statute providing immunity for performance of “any”
discretionary function, Officer Moses argues that Alabama law differentiates between the
judicially-created doctrine of state-agent immunity and the statutory protection afforded under §
6-5-338. Specifically, Officer Moses argues that peace-officer immunity must be broader than
state-agent immunity, and that the limitations on eligibility for state-agent immunity are
inapplicable to peace-officer immunity. Officer Moses reads § 6-5-338 to provide immunity to
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any officer exercising any discretionary function, even if his actions were willful, malicious, in
bad faith, or beyond his authority. Put simply, Officer Moses argues that the Cranman test is
inapplicable to peace-officer immunity.
Officer Moses's argument has been roundly rejected by Alabama courts. The Alabama
Supreme Court has explicitly stated that peace-officer immunity is analyzed “under the principles
set forth in Cranman.” Swan v. City of Hueytown, 920 So. 2d 1075, 1078 (Ala. 2005). Officer
Moses cites Lee v. Minue Stop, Inc., 874 So. 2d 505, 514 (Ala. 2003), for the proposition that
state-agent and peace-officer immunity are analyzed under separate frameworks. However, the
Alabama Supreme Court in Swan explicitly acknowledged Lee but declined to follow it. See
Swan, 920 So. 2d at 1078 n.4.
When applying state law, federal courts “are bound by the decisions of the state supreme
court.” World Harvest Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d 950, 957 (11th Cir.
2009). Therefore, the court finds that the same exceptions that exist for state-agent immunity
exist for peace-officer immunity under Alabama law. Because a question of material fact exists
regarding whether Officer Moses acted willfully or beyond his authority, Officer Moses is not
entitled to summary judgment on Mr. Glasscox's state law claims based on peace-officer
immunity.
IV.

CONCLUSION
The court DENIES Officer Moses's Motion for Summary Judgment. (Doc. 19).

DONE this the 27th Day of September, 2016.

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____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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