Rigas v. The City of Rogersville, Alabama et al

Filing 36

MEMORANDUM OPINION AND ORDER that it is ORDERED that defendant's motion for summary judgment is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/17/2013. (AHI)

FILED
2013 Sep-17 PM 03:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
SPIROS PETE RIGAS,
Plaintiff,
vs.
THE CITY OF ROGERSVILLE,
ALABAMA, et al.,
Defendants.

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Civil Action No. CV-12-S-2401-NW

MEMORANDUM OPINION AND ORDER
This action is before the court on a motion for summary judgment filed by
defendant, Jason Shireman.1 Plaintiff, Spiros Pete Rigas, commenced this action in
the Circuit Court of Lauderdale County, Alabama, on June 8, 2012, and named as
defendants the Town of Rogersville, Alabama,2 and Rogersville Police Officer Jason
Shireman.3 Both defendants timely removed the case to this court on July 6, 2012,
based on federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441, 1446.
The plaintiff’s complaint contained four counts: a claim for assault and battery
1

Doc. no. 27 (Motion for Summary Judgment), at 1.

2

A careful reader will notice that the caption of this action references the “City of
Rogersville” (emphasis supplied). In the motion to dismiss filed by that municipal corporation,
however, this court was informed that “[t]he Town is incorrectly referred to in the complaint as [the]
‘City of Rogersville, Alabama.’” Doc. no. 2, at 1 n.1 (alterations supplied) (emphasis in original).
3

See doc. no. 1 (Notice of Removal), at ECF 11-23 (hereafter, “Plaintiff’s Complaint”).

against Officer Shireman; a claim for false imprisonment and/or false arrest against
both defendants; a claim for negligence against the Town; and a claim that both
defendants violated rights guaranteed to plaintiff by the Fourth Amendment,4 as made
applicable to the states by incorporation into the Fourteenth Amendment to the United
States Constitution.5 All claims against the Town were dismissed on January 31,
2013, for failure to state a claim upon which relief could be granted.6 Accordingly,
only plaintiff’s claims against Officer Shireman remain at issue.
The fourth count of plaintiff’s complaint — alleging that Officer Shireman
violated plaintiff’s Fourth Amendment rights — is asserted through 42 U.S.C. §
1983.7 This court has original jurisdiction of that claim under the federal question
4

The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const., amend. IV (1791).
5

The “incorporation” of the Fourth Amendment into the Due Process Clause of the
Fourteenth Amendment and, thereby, its application to the various states was finalized by the
Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961). See also, e.g., Ker v. California,
374 U.S. 23 (1963); and Wolf v. Colorado, 338 U.S. 25 (1949). Note well that, despite the Fourth
Amendment’s language prohibiting “unreasonable” searches of places (“houses”) and seizure of
things (“papers[] and effects”), modern jurisprudence clearly establishes that the Fourth Amendment
“protects individuals.” United States v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir. 2003)
(quoting United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir.2001)).
6

See doc no. 21 (Memorandum Opinion and Order of Dismissal), at 11–12.

7

See Complaint ¶¶ 35-41.

2

statute,8 and has supplemental jurisdiction over the state-law tort claims asserted by
plaintiff in Counts One and Two.9 Officer Shireman moves for summary judgment
on all claims, alleging that: he is subject to “qualified immunity” under 42 U.S.C. §
1983; that he did not violate plaintiff’s Fourth Amendment rights; and that he is
subject to “State-agent immunity” for all of plaintiff’s state-law tort claims.10
Summary judgment should be entered “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
8

Section 1983 provides a means of seeking redress against governmental entities and
officials whose conduct under color of state law deprives a plaintiff of rights, privileges, or
immunities secured by the United States Constitution or federal statutes. The statute was enacted
for the express purpose of enforcing the Fourteenth Amendment. See Mitchum v. Foster, 407 U.S.
225, 238–39 (1972); see also, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 834 (1985);
Monroe v. Pape, 365 U.S. 167, 171 (1961).
Section 1983 is not jurisdictional, however, and it is not “itself a source of substantive rights,
but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver,
510 U.S. 266, 271 (1994) (citations and internal quotation marks omitted). Two jurisdictional
statutes apply to § 1983 litigation in federal court: 28 U.S.C. § 1343(a)(3), the jurisdictional
counterpart of 42 U.S.C. § 1983; and, 28 U.S.C. § 1331, the general federal question statute. Of the
two statutes, § 1331 provides for more expansive jurisdiction, because it affords jurisdiction in cases
raising a federal question. In contrast, § 1343(a)(3) limits federal jurisdiction to suits involving
“equal rights.” Neither statute sets an amount that must be in controversy for jurisdiction to attach.
Furthermore, actions that were, as in the present case, commenced in state court, and which assert
a claim based upon 42 U.S.C. § 1983, are removable pursuant to 28 U.S.C. §§ 1441, 1443, and
1446(a), within the time allowed by § 1446(b).
9

With jurisdiction over federal claims, district courts also have jurisdiction to adjudicate state
law claims that arise out of “a common nucleus of operative fact.” United Mine Workers of America
v. Gibbs, 383 U.S. 715, 725 (1966). Formerly known as “ancillary” and “pendent jurisdiction,”
supplemental jurisdiction under 28 U.S.C. § 1367 permits both pendent claim and pendent party
jurisdiction. See, e.g., Williams v. Ragnone, 147 F.3d 700, 702–03 (8th Cir. 1998) (holding that
§ 1983 claims asserted in state court are removable, together with state law claims forming part of
the same case or controversy).
10

Doc no. 28 (Brief in Support of Defendant’s Motion for Summary Judgment [hereinafter
Defendant’s Brief]), at 12, 29.

3

matter of law.” Fed. R. Civ. P. 56(a). A motion for summary judgment may properly
be granted against a nonmoving party who “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
Under Federal Rule of Civil Procedure 56(c), summary judgment
is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). The party asking for
summary judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those portions of the
pleadings or filings which it believes demonstrate the absence of a
genuine issue of material fact. See id. at 323, 106 S.Ct. 2548. Once the
moving party has met its burden, Rule 56(e) requires the nonmoving
party to 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. See id. at
324, 106 S. Ct. 2548.
Zann v. Whidby, 904 F. Supp. 2d 1229, 1234 (N.D. Ala. 2012) (Hancock, J.). Any
reasonable dispute or doubt as to any material fact, and all justifiable inferences, are
resolved in favor of the non-moving party. See Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993) (quoting United States v. Four Parcels of Real Property,
941 F.2d 1428, 1437 (11th Cir. 1991)). The materiality of a fact is determined by the

4

substantive law at issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine” dispute is one in which a reasonable jury could find for the nonmoving party. Id.
I. FACTS AS ALLEGED
Plaintiff resides in Rogersville, Alabama, and was inside his home on the
evening of March 14, 2011.11 Around 9:00 p.m., Rogersville Police Officer Jason
Shireman loudly knocked on plaintiff’s front door.12 Plaintiff answered the door and
asked why defendant was pounding on his door.13 Defendant informed plaintiff that
he must stop discharging his firearm within the corporate limits of the Town of
Rogersville, because such actions violated a town ordinance.14 Plaintiff admits that
he had fired a gun on his property, but contends that the defendant had never
observed him holding or discharging the weapon.15 Plaintiff then began to lecture
defendant on the scope of Second Amendment rights and the sanctity of his property
rights.16 During that discourse, defendant “suspected [that plaintiff] may have been

11

Id. ¶¶ 5, 9–11.

12

Id. ¶¶ 6–8.

13

Id. ¶ 11.

14

Id. ¶ 12.

15

Compare doc. no. 29-1 (Rigas Deposition), at 229–30, with doc. no. 29-2 (Shireman
Affidavit) ¶¶ 4–20.
16

See doc. no. 28 (Defendant’s Brief) ¶ 13; doc. no. 29-1 (Rigas Deposition), at 125–26,

136–41.

5

under the influence of some intoxicant or else was on some medication.”17 Plaintiff
later admitted to having taken three legal, prescribed medications prior to the
incident.18 In any event, what happened next is a matter of significant dispute.
Defendant and an alleged eyewitness claim that plaintiff physically shoved
defendant, then turned to re-enter his home.19 Plaintiff denies that.20
Both parties agree that, at some point, defendant shoved plaintiff, causing his
head to strike a brick wall.21 Plaintiff maintains he never touched defendant until
after defendant had pushed him and attempted to place him under arrest.22
Defendant attempted to formally arrest plaintiff, but plaintiff refused to be
arrested, and scrambled for the door “to escape further harm.”23 Defendant leveraged
himself inside the door, and began bludgeoning the tempered glass window of the
door with a metal baton, in an attempt to break the glass and reach through the
opening to “get control” of plaintiff.24 Defendant ultimately succeeded in breaking
the door’s glass window, and admitted that he repeatedly struck plaintiff’s hand and

17

Doc no. 28 (Defendant’s Brief) ¶ 11 (alteration supplied).

18

Doc. no. 29-1 (Rigas Deposition), at 113–15.

19

See doc. no. 29-2 (Shireman Affidavit) ¶ 10; doc. no. 29-3 (Holden Affidavit) ¶ 9.

20

Doc. no. 29-1 (Rigas Deposition), at 125, 137, 141.

21

Doc. no. 29-1 (Rigas Deposition), at 141; doc. no. 29-2 (Shireman Affidavit) ¶ 10.

22

See doc. no. 29-1 (Rigas Deposition), at 204, 303.

23

Doc no. 28 (Defendant’s Brief) ¶ 19 (quoting doc. no. 29-2 (Shireman Affidavit) ¶ 13).

24

Id.

6

arm with the baton because he believed that plaintiff was attempting to reach his
holstered firearm.25
Plaintiff “bull-rushed” defendant out of the doorway and off his porch, locked
the door, and called 911 to request deputies from the Lauderdale County Sheriff’s
Office.26 Plaintiff also called his mother. When plaintiff’s mother and the sheriff’s
deputies arrived, plaintiff walked out of his residence and was arrested.27 An
ambulance transported plaintiff to the Eliza Coffee Memorial Hospital, where he
received treatment for the injuries inflicted during the fracas.28 Defendant claims that
he also suffered injuries.29
On March 16, 2011, two days after the altercation, defendant swore out a
complaint against plaintiff for assault, escape, and resisting arrest.30 Ultimately, a
Lauderdale County grand jury refused to return an indictment.31 Defendant is no
longer employed by the Rogersville Police Department.32
II. DISCUSSION

25

Id. ¶ 20.

26

Id. ¶¶ 22, 25.

27

Complaint ¶¶ 19–20.

28

Doc. no. 28 (Defendant’s Brief) ¶ 28.

29

Id.

30

Id. ¶ 29.

31

Doc. no. 29-5 (Letter from Lauderdale County District Attorney).

32

See doc. no. 29-2 (Shireman Affidavit) ¶ 2.

7

The summary judgment requirement to “review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment,” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000), takes on even greater force
when, in an action founded upon 42 U.S.C. § 1983, a state governmental official files
a Rule 56 motion interposing the affirmative defense of qualified immunity. In such
cases, the court must answer the legal question of whether the governmental official
is entitled to qualified immunity under the plaintiff’s version of the facts. As the
Supreme Court observed in Saucier v. Katz, 533 U.S. 194 (2001), a court that is
“required to rule upon the qualified immunity issue must consider . . . this threshold
question: Taken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201
(emphasis supplied).
Indeed, we approach the facts from the plaintiff’s perspective
because “[t]he issues . . . concern ‘not which facts the parties might be
able to prove, but, rather, whether or not certain given facts showed a
violation of clearly established law.’” Sheth [v. Webster], 145 F.3d
[1231,] 1236 [(11th Cir. 1998)] (quoting Johnson v. Jones, 515 U.S.
304, 311, 115 S. Ct. 2151, 2155, 132 L. Ed. 2d 238 (1995)). As this
Court has repeatedly stressed, the “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the
case.” Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th
Cir. 2000). Nevertheless, for summary judgment purposes, our analysis
must begin with a description of the facts in the light most favorable to
the plaintiff. See Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir.
2002).
8

Lee v. Farraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (alterations supplied).
Here, according to the facts pled by defendant, the plaintiff shoved him during
the heat of their confrontation, at which point defendant attempted to place plaintiff
under arrest.33 Plaintiff denies that allegation, however, charging instead that
defendant first pushed him violently into a wall, then attempted to place him under
arrest. Plaintiff alleges that he neither touched nor threatened defendant until after
defendant attempted to arrest him.34
In response, defendant draws this court’s attention to the fact that plaintiff’s
brief in opposition to defendant’s motion for summary judgment failed to comply
with the Uniform Initial Order entered in this case; specifically, plaintiff failed to
present the disputed facts in clearly numbered paragraphs, failed to present distinct
legal arguments, and generally failed to cite to the record or to applicable statutory
or case law authorities.35 For those reasons, defendant asks this court to consider
plaintiff as having admitted all facts set out in defendant’s brief in support of his
motion for summary judgment.36 In view of plaintiff’s pro se status, however, this
court declines to do so.
33

Doc. no. 28 (Defendant’s Brief) ¶ 14.

34

See, e.g., doc. no. 29-1 (Rigas Deposition), at 127, 137, 142, 147–48, 204, 303.

35

Compare generally doc. no. 6 (Uniform Initial Order), Appendix II, with doc. no. 32
(Response to Motion for Summary Judgment).
36

Doc. no. 35 (Reply Brief in Support of Motion for Summary Judgment), at 4.

9

Among other considerations, district courts are instructed to “liberally
construe” pleading requirements for parties who proceed pro se, as they cannot be
expected to possess the expertise of practicing attorneys in conforming with the
procedural rules of court. See, e.g., Trawinski v. United Technologies, 313 F.3d 1295,
1297 (11th Cir. 2002) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.”)). The
factual narrative contained in plaintiff’s response brief does nothing to advance the
substantive merits of his case, but his central allegation is clear: defendant initiated
physical contact with him, and not the other way around.37 To rob a pro se plaintiff
of that singular allegation as a penalty for a defective pleading is a step too far.
In addition, plaintiff’s sworn deposition testimony (attached as Exhibit A to
defendant’s brief in support of summary judgment) flatly denies initiating contact
with defendant prior to the attempted arrest.38 That account of events is controlling
for purposes of summary judgment.
A.

Qualified Immunity

37

See doc. no. 32 (Response to Motion for Summary Judgment), at ECF 1–2, 8.

38

See, e.g., doc. no. 29-1 (Rigas Deposition), at 127, 137, 142, 147–48, 204, 303.

10

The doctrine of qualified immunity provides “immunity from suit to
governmental officials performing discretionary functions as long as ‘their conduct
violates no clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Green v. Brantley, 941 F. 2d 1146, 1148 (11th Cir.
1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of the
doctrine is to allow government officials to carry out their discretionary duties
without the fear of personal liability or harassing litigation. Anderson v. Creighton,
483 U.S. 635, 638 (1987); Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002).
The doctrine protects from suit “all but the plainly incompetent or one who is
knowingly violating the federal law.” Hope v. Pelzer, 536 U.S. 730, 752 (2002)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also, e.g., Lee, 284 F.3d at
1193–94; Chesser v. Sparks, 248 F.3d 1117, 1121–22 (11th Cir. 2001).
In order to be eligible to claim the benefits of the doctrine, the public official
“must first prove that ‘he was acting within the scope of his discretionary authority
when the allegedly wrongful acts occurred.’” Courson v. McMillian, 939 F.2d 1479,
1487 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)).
Here, defendant has established that he was acting within his discretionary authority
as a police officer for the Town of Rogersville.39 Thus, “the burden shifts to the
39

See doc. no. 28 (Defendant’s Brief) ¶¶ 5–6; doc. no. 29-2 (Shireman Affidavit) ¶¶ 3–4.

11

plaintiff to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194.
1.

Probable cause for arrest

To establish a violation of the Fourth Amendment when making an arrest, the
plaintiff must show that the arrest was unreasonable. See, e.g., Brower v. County of
Inyo, 489 U.S. 593, 599 (1989) (“Seizure alone is not enough for § 1983 liability; the
seizure must be unreasonable.”) (internal quotation marks and citation omitted). An
arrest is unreasonable when it is not supported by probable cause. See, e.g., Crosby
v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). “Probable cause is defined
in terms of facts and circumstances sufficient to warrant a prudent man in believing
that the suspect had committed or was committing an offense.” Id. (citing Gerstein
v. Pugh, 420 U.S. 103, 111 (1975)). “If an officer has probable cause to believe that
an individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City
of Lago Vista, 532 U.S. 318, 354 (2001).
Further, actual probable cause is not required for purposes of claiming the
benefits of the doctrine of qualified immunity. See Lee v. Ferraro, 284 F.3d 1188,
1195 (11th Cir. 2002). Rather, only arguable probable cause is required: that is,
whether “reasonable officers in the same circumstances and possessing the same
knowledge as the Defendant[] could have believed that probable cause existed to
12

arrest the plaintiff[].” Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir.
1998) (alterations and emphasis supplied) (quoting Von Stein v. Brescher, 904 F.2d
572, 579 (11th Cir. 1990)). “Arguable probable cause does not require an arresting
officer to prove every element of a crime or to obtain a confession before making an
arrest, which would negate the concept of probable cause and transform arresting
officers into prosecutors.” Scarbrough v. Myles, 245 F.3d 1299, 1302–03 (11th Cir.
2001) (footnote omitted).40 The key inquiry in determining whether arguable
probable cause existed is the question of whether the information known by the
officer at the time of the arrest was sufficient to warrant a reasonable person in
forming the belief that the suspect had committed a crime. Gernstein v. Pugh, 420
U.S. 103, 111 (1975); Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998).

40

The omitted footnote from Scarbrough reads as follows:

Our inquiry in qualified-immunity analysis is whether the government actor’s
conduct violated clearly established law and not whether an arrestee’s conduct is a
crime or ultimately will result in conviction. Police officers are not expected to be
lawyers or prosecutors. See Lassiter, 28 F.3d at 1152 n. 8 (recognizing that it is
“‘unfair and impracticable’ to hold public officials to the same level of knowledge
as trained lawyers”) (quoting Davis v. Scherer, 468 U.S. 183, 196 n. 13, 104 S. Ct.
3012, 3020 n.13, 82 L. Ed. 2d 139 (1984)). The district judge focused on the
arrestees instead of the arresting officer in his decision to deny Hall qualified
immunity. The issue should have been whether Hall violated clearly established law
in making the arrests based on the objective factors that gave rise to his
probable-cause determination and not whether the arrestees’ actions actually
constituted a crime.
Scarbrough v. Myles, 245 F.3d 1299, 1303 n.8 (11th Cir. 2001).

13

Further, “[w]hen an officer makes an arrest, which is properly supported by probable
cause to arrest for a certain offense, neither his subjective reliance on an offense for
which no probable cause exists nor his verbal announcement of the wrong offense
vitiates the arrest.” United States v. Saunders, 476 F.2d 5, 7 (1973) (citing United
States v. Bowers, 458 F.2d 1045 (5th Cir. 1972)); United States v. Brookins, 434 F.2d
41 (5th Cir. 1972)41 ; Klingler v. United States, 409 F.2d 299 (8th Cir. 1969)
(alteration supplied).
Defendant argues that, at the time of the contested arrest, he had actual
probable cause to arrest plaintiff for the offenses of assault, resisting arrest, escape
in the third degree, and reckless endangerment (for discharging a firearm). In the
alternative, he argues that he had, at a minimum, arguable probable cause to effect
arrests for those offenses. “Whether a particular set of facts gives rise to probable
cause or arguable probable cause to justify an arrest for a particular crime depends . . .
on the elements of the crime.” Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th
Cir. 2004). A brief analysis of the legal standards for each offense leads to the
conclusion that there are genuine issues of material fact precluding a conclusion that
defendant possessed either actual or arguable probable cause for arresting plaintiff.

41

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.

14

a.

Assault

A person commits an assault in the second degree under Alabama law if, “with
intent to prevent a peace officer . . . from performing a lawful duty, he or she intends
to cause physical injury and he or she causes physical injury to any person.” Ala.
Code § 13A-6-21 (1975) (2005 Replacement Vol.) (alteration supplied). Actual
physical injury to a victim is required. Id.; see also, e.g., Miller v. State, 645 So. 2d
363, 364 (Ala. Crim. App. 1994) (“Some degree of physical injury is an element of
each degree of assault.”).42
Defendant relies on plaintiff’s act of shoving defendant off his porch as the sole
incident giving rise to probable cause for arresting plaintiff for assault in the second
degree.43 Construing the contested facts in the light most favorable to the plaintiff,
however, it is clear that a genuine issue of material fact exists as to whether plaintiff

42

Each probable cause determination turns on an interpretation of Alabama state law. Where
the highest state court — here, the Alabama Supreme Court — has ruled on the issue, the federal
court will follow its rule. See, e.g., Molinos Valle Del Cibao, C., por A. v. Lama, 633 F.3d 1330,
1348 (11th Cir. 2011). Where the highest state court has not yet ruled on a precise issue, however,
a federal court must follow the decisions of state intermediate appellate courts, unless “persuasive
evidence demonstrates that the highest court would conclude otherwise.” Id.; accord Auto-Owners
Insurance Co. v. E.N.D. Services, Inc., 506 F. App’x 920, 924 n.4 (11th Cir. 2013); Allstate Life
Insurance Co. v. Miller, 424 F.3d 1113, 1116 (11th Cir. 2005). Thus, absent “persuasive evidence”
to the contrary, where the Alabama Supreme Court has not spoken on an issue, this court must accept
the decisions of the Court of Criminal Appeals of Alabama as definitive authority on the
interpretation of Alabama criminal law.
43

Doc. no. 28 (Defendant’s Brief), at 14–15.

15

made physical contact with defendant prior to the attempted arrest.44
By the time defendant effectuated plaintiff’s arrest, it is undisputed that
plaintiff had “bull-rushed” defendant off the porch, which could have caused the
physical injuries defendant complained of in his affidavit.45 Without physical contact
prior to the attempted arrest, however, defendant could not have suffered an injury
and, therefore, neither actual nor probable cause to arrest for assault could have
possibly existed at the time the arrest began. See Crosby v. Monroe County, 394 F.3d
1328, 1332 (11th Cir. 2004) (“Probable cause is defined in terms of facts and
circumstances sufficient to warrant a prudent man in believing that the suspect had
committed or was committing an offense.”) (citing Gerstein v. Pugh, 420 U.S. 103,
111 (1975)); Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990) (“[A]pplying
the qualified immunity test in the context of Plaintiff’s alleged unlawful arrest, we
must determine whether reasonable officers in the same circumstances and possessing
the same knowledge as the Defendants could have believed that probable cause
existed to arrest Plaintiff . . . .” (alterations supplied)).
b.

Resisting arrest and escape in the third degree

44

Compare id., doc. no. 29-2 (Shireman Affidavit) ¶ 10, and doc. no. 29-3 (Holden Affidavit)
¶ 8, with doc. no. 29-1 (Rigas Deposition), at 127, 137, 142, 147–48, 204, 303 and doc. no. 32
(Response to Motion for Summary Judgment), at ECF 1–2, 8.
45

Doc no. 28 (Defendant’s Brief) ¶¶ 22, 25; doc. no. 29-1 (Rigas Deposition), at 204, 303,

308.

16

Under Alabama law, a person commits the crime of resisting a lawful arrest by
preventing or “attempting to prevent a peace officer from affecting [sic] a lawful
arrest of himself or of another person.” Ala. Code § 13A-10-41. An arrest without
a warrant, as here, may be effected “if a public offense has been committed or a
breach of the peace threatened in the presence of the officer.”46 Ala. Code § 15-103(1).
There is no Alabama law or practice criminalizing resistance of an unlawful
arrest, however. See Shinault v. City of Huntsville, 579 So. 2d 696, 698 (Ala. Crim.
App. 1991); see also id. at 699–700 (Bowen, J., concurring). Indeed, Alabama law
has historically permitted use of reasonable force to resist an unlawful arrest. Ala.
Code § 13A-3-28 Commentary (1975) (“Alabama law . . . allows a person to use
unreasonable force to resist an unlawful arrest.” (alteration supplied)) (citing Spooney
v. State, 217 Ala. 219, 225 (Ala. 1928); Brown v. State, 109 Ala. 70, 91 (Ala. 1895);
Tarwater v. State, 75 So. 816, 817 (Ala. Crim. App. 1917)); see also, e.g., Brown, 109
Ala. at 91 (“It is not the duty of the citizen to submit to any other than a lawful arrest.
It has been said the duty ‘is found in the law side by side with the right of resistance

46

Ala. Code §15-10-3 contains seven additional scenarios in which an arrest without a
warrant may be effected, including the commission or suspected commission of a felony, Ala. Code
§ 15-10-3(2)–(5), issuance of a warrant, §15-10-3(6), issuance of a protective order, § 15-10-3(7),
and offenses involving domestic violence, § 15-10-3(8). None of those scenarios are applicable to
the case at issue.

17

to an unlawful one . . . .’” (alteration supplied) (quoting Drennan v. People, 10 Mich.
169, 186 (Mich. 1862)).
Escape in the third degree similarly requires an underlying lawful arrest. See
Ala. Code § 13A-10-33; id. Commentary (1975). Escape in the third degree occurs
where a person “escapes or attempts to escape from custody.” Ala. Code § 13A-1033. “Custody” refers to “any detention pursuant to a lawful arrest or court order.”
See, e.g., Abernathy v. State, 462 So. 2d 960, 961 (Ala. Crim. App. 1984) (quoting
Ala. Code § 13A-10-33 Commentary (1975)) (emphasis supplied). Absent an initial
lawful arrest, then, neither arguable nor actual probable cause to arrest may exist for
either resisting arrest or escape in the third degree.
Defendant has not met his burden of showing that the attempted warrantless
arrest was “lawful.” See, e.g., Celotex, 477 U.S. at 323. The lawfulness of the arrest
turns, again, on whether plaintiff initiated physical contact with defendant prior to the
attempted arrest.47 Taking plaintiff’s version of events — that defendant initiated
physical contact with plaintiff in anger, then tried to arrest plaintiff when he
attempted to extricate himself from the fracas — no reasonable person in defendant’s
position could have believed the underlying arrest was lawful. Because a lawful
arrest is the prerequisite for the crimes of resisting arrest and escape in the third
47

See doc. no. 28 (Defendant’s Brief), at 16.

18

degree, see Ala. Code § 13A-10-41; § 13A-10-33 Commentary (1975), no reasonable
person could believe probable cause to arrest existed for those crimes. Therefore,
defendant is not entitled to summary judgment on the issue of qualified immunity on
those grounds.
c.

Reckless endangerment

Defendant argues in the alternative that, even if arguable probable cause did
not exist to arrest plaintiff for any of the charged offenses, he nevertheless had
arguable probable cause to arrest plaintiff for reckless endangerment, based on the
sole fact that defendant admitted to firing a gun on his property.48 Although plaintiff
was never charged with reckless endangerment, if arguable probable cause existed for
plaintiff’s arrest on those grounds, defendant would be entitled to qualified
immunity.49 See Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (“[A]ll
that is required for qualified immunity to be applicable to an arresting officer is

48

Doc. no. 28 (Defendant’s Brief), at 15 n.8.

49

Defendant acknowledges that reckless endangerment is a misdemeanor, and that a
warrantless arrest for a misdemeanor is not permitted under Alabama law unless the misdemeanor
is committed in the officer’s presence. See doc. no. 28 (Defendant’s Brief) at 15 n.8; Crosby v.
Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Nevertheless, the Eleventh Circuit has
repeatedly held that, for purposes of false arrest claims made under § 1983, it is not necessary that
the arrest be permissible under state law, only that probable cause exist for the arrest: i.e., that a
reasonable person in the officer’s position, based on the facts and circumstances known to the officer
at the time, would believe the suspect was committing or had committed a crime. See Crosby, 394
F.3d at 1333; Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002). Therefore the only legal
issue is whether defendant had probable cause to believe plaintiff had committed the misdemeanor
offense of reckless endangerment.

19

‘arguable probable cause to believe that a person is committing a particular public
offense.’”) (quoting Redd v. City of Enterprise, 140 F.3d 1378, 1384 (11th Cir.
1998)). Here, the bare admission of an earlier discharge of a firearm, without more,
is not enough information for this court to conclude as a matter of law that a
reasonable person could have believed probable cause existed to effectuate an arrest
for reckless endangerment. See Redd, 140 F.3d at 1382.
Reckless endangerment requires a person to recklessly engage in conduct
creating a substantial risk of serious physical injury to another. See Ala. Code § 13A6-24. Alabama Code § 13A-2-2 defines “recklessly” as a person being “aware of and
consciously disregard[ing] a substantial and unjustifiable risk that the result will
occur or that the circumstance exists.” Ala. Code § 13A-2-2 (alteration supplied).
Plaintiff admits that firing a gun can cause serious physical injury to another.50 Even
so, more specific and egregious facts are required for the use or threatened use of a
firearm to rise, even arguably, to the level of recklessness and conscious disregard.
See, e.g., Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Such
facts typically involve the arrested individual aiming or discharging the firearm in the
direction of a person or a group of people in order to create a “substantial and
unjustifiable risk” of injury. See, e.g., Crosby, 394 F.3d at 1333 (finding arguable
50

Doc. no. 29-1 (Rigas Deposition), at 133.

20

probable cause for reckless endangerment where police officer responded to a report
of shots fired toward a residence, heard a shot, saw plaintiff holding a shotgun, and
heard plaintiff eject a shell from the shotgun); Robinson v. McPherson, 602 So. 2d
352, 354 (Ala. 1992) (finding probable cause for reckless endangerment where
plaintiff pointed a gun at defendant and “cocked” it, and plaintiff had been involved
in altercations with defendant in the past); Hale v. State, 654 So. 2d 83, 86 (Ala.
Crim. App. 1994) (finding the elements of reckless endangerment satisfied where
appellant and his brother emerged from a house brandishing guns, chased a group of
people into and behind a barn, and then began firing a high-powered rifle into the
barn); M.S. v. State, 625 So. 2d 1187, 1189 (Ala. Crim. App. 1993) (finding the
elements of reckless endangerment satisfied where appellant fired a BB gun at
complainant, her daughter, and her granddaughter).
Here, defendant had no knowledge or reason to believe that plaintiff had aimed,
much less discharged, the gun at anyone. Defendant did not witness plaintiff aiming
(or even holding) a gun, did not hear a shot, and had no reason to believe anyone was
fearful of death or serious injury as a result of plaintiff’s conduct. See Ala. Code §
13A-6-24. In fact, plaintiff contends in his deposition that he had minimized the risk
of danger to others by firing at a target he had constructed that was surrounded by
thick wood and rubber tires, and specifically chose a gun with “very little risk of
21

ricochet.”51 Unlike the facts of Crosby, defendant was not responding to a report
filed by a frightened citizen that plaintiff was in the act of firing a gun at anyone, but
rather to a request by the Mayor of Rogersville to appease complaints made by
plaintiff’s neighbor.52 In fact, plaintiff’s neighbor admitted in her deposition that she
had to ask a police officer whether plaintiff’s actions were even in violation of an
ordinance.53 Those few facts cannot reasonably constitute even arguable probable
cause for reckless endangerment, and certainly cannot sustain defendant’s motion for
summary judgment on the issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (placing the burden on the moving party to show the court, by reference to
materials on file, that there are no genuine issues of material fact to be decided at
trial).
This court cannot agree that a reasonable officer, in the position of defendant,
and possessing only the knowledge defendant possessed at the time, would conclude
that arguable probable cause for reckless endangerment existed at the time of the
initial arrest attempt. See Redd, 140 F.3d at 1382. Thus, defendant is not entitled to
summary judgment on the ground of qualified immunity.
2.

Excessive force

51

See id. at 133–34.

52

See doc. no. 28 (Defendant’s Brief) ¶ 3.

53

Doc. no. 29-3 (Holden affidavit) ¶ 5.

22

Plaintiff also alleges that defendant used excessive force while effectuating the
arrest.54 Specifically, plaintiff points to: defendant’s initial shove, which resulted in
two knots on the back of plaintiff’s head; defendant’s act of striking plaintiff’s hand
and arm with a police baton, resulting in multiple bruises; and defendant’s act of
shattering the window of plaintiff’s door with his baton, injuring plaintiff’s forearm.55
When an excessive force claim arises in the context of an arrest, it is most
properly characterized as one invoking the protections of the Fourth Amendment,
which guarantees citizens the right to be “secure in their persons . . . against
unreasonable . . . seizures of the person.” Graham v. Connor, 490 U.S. 386, 394
(1989) (quoting U.S. Const., amend. IV (1791)) (internal quotation marks omitted).
Under the law of the Eleventh Circuit, however, “a claim that any force in an
illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and
is not a discrete excessive force claim.” Lee v. Ferraro, 284 F.3d 1188, 1193 (11th
Cir. 2002) (quoting Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000) (in turn
citing Williamson v. Mills, 65 F.3d 155, 158–59 (11th Cir. 1995))). The logic of the
rule is evident: if an arrest was illegal, i.e., lacking in probable cause, then any force
used in effecting the arrest would be excessive. See Jackson, 206 F.3d at 1171; see

54

Complaint ¶¶ 24, 25, 37.

55

See, e.g., doc. no. 29-1 (Rigas Deposition), at 157–58, 213–16, 221–27.

23

also Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000) (reaffirming that any force
used while effectuating an arrest lacking probable cause is excessive); Sheth v.
Webster, 145 F.3d 1231, 1238 (11th Cir. 1998); Thornton v. City of Macon, 132 F.3d
1395, 1398 (11th Cir. 1998). Further, any potential damages recoverable from an
excessive force claim would be recovered in a successful false arrest claim. See
Williamson, 65 F.3d at 159 (“[D]amages recoverable on [plaintiff’s] false arrest claim
include damages suffered because of the use of force in effecting the arrest.”
(alterations supplied)).
In the present case, the language of the complaint clearly connects the alleged
assault, battery, and physical abuse with the unlawfulness of the arrest.56 As plaintiff
does not allege excessive force during commission of a legal arrest, even as an
alternative basis for recovery, any claim for excessive force is subsumed under
plaintiff’s false arrest claims and the court need not reach a separate answer on the
motion for summary judgment.57 See Jackson, 206 F.3d at 1171 (“The correct
analysis is that the excessive force claim is subsumed in the illegal stop or arrest
claim, as recognized in Williamson, where a plaintiff contends the force was
excessive because there was no basis for any force.”).
56

See Complaint ¶ 37.

57

A claim for excessive force during a legal arrest, in contrast, is an independent claim.
Jackson, 206 F.3d at 1171.

24

The court now turns to defendant’s motion for summary judgment on plaintiff’s
state law claims.
B.

State-Agent Immunity for State-Law Tort Claims
Defendant asserts that he is entitled to summary judgment on the basis of State-

agent immunity from plaintiff’s state-law claims of false arrest, false imprisonment,
and assault and battery.58
When exercising supplemental jurisdiction over a state-law issue under 28
U.S.C. § 1367, a federal district court is required to apply the law of the forum state.
See 28 U.S.C. § 1367; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938); see
also Flava Works, Inc. v. City of Miami, 609 F.3d 1233, 1237 (11th Cir. 2010) (“In
the instant case, the district court exercised supplemental jurisdiction over the petition
for writ of certiorari, pursuant to 28 U.S.C. § 1367. As such, state law applies to any
issue not governed by the Constitution or treaties of the United States or Acts of
Congress.”).
In Alabama, a municipal police officer is immune from tort liability “arising
out of his or her conduct or performance of any discretionary function within the line
and scope of his or her law enforcement duties.” Ala. Code § 6-5-338(a). This
immunity rule was articulated in Hollis v. City of Brighton, 950 So. 2d 300 (Ala.
58

See Plaintiff’s Complaint, at ECF 11-23; doc. no. 28 (Defendant’s Brief), at 12, 29.

25

2006), which revised a similar formulation in Ex parte Cranman, 792 So. 2d 392
(Ala. 2000), as follows:
A State agent shall be immune from civil liability in his or her
personal capacity when the conduct made the basis of the claim against
the agent is based upon the agent’s
...
(4) exercizing judgment in the enforcement of the criminal laws
of the State, including, but not limited to, law-enforcement officers’
arresting or attempting to arrest persons, or serving as peace officers
under circumstances enlisting such offers to immunity pursuant to § 6-5338(a), Ala. Code (1975).
Hollis, 950 So. 2d at 309 (emphasis in original) (revising Cranman, 792 So. 2d at
405). A State agent will not be immune from civil liability, however, when required
by law, or “when the State agent acts willfully, maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a mistaken interpretation of the law.” Cranman,
792 So. 2d at 405.
The first step in a State-agent immunity analysis is to determine whether the
police officer whose conduct is challenged was engaged in the performance of a
discretionary function (as defined in Cranman and revised in Hollis) at the time the
alleged tort occurred.59 See Ex parte Kennedy, 992 So. 2d 1276, 1282 (Ala. 2008)
59

Formerly, State-agent immunity was referred to as “discretionary function immunity.” See,
e.g., Sheth v. Webster, 145 F.3d 1231, 1236–38 (11th Cir. 1998). Following Cranman, however, the
Alabama Supreme Court definitively stated that it will follow the State-agent immunity standard
articulated in Cranman, rather than the older discretionary function standard. See, e.g., Ex parte

26

(citing Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)). Should
defendant demonstrate that such discretionary actions form the basis for plaintiff’s
claims, the burden shifts to plaintiff to show that one of the two Cranman categories
of exceptions is applicable. Of course, on motion for summary judgment by the
defendant, all reasonable questions of fact and inferences still are resolved in favor
of the plaintiff. See Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000)
(en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)); see
also Saucier v. Katz, 533 U.S. 204, 201 (2001) (“A court required to rule upon the
qualified immunity issue must consider . . . this threshold question: Taken in the light
most favorable to the party asserting the injury, do the facts alleged show the officers
conduct violated a constitutional right?”) (emphasis supplied).
Here, there is no factual dispute that defendant was acting within his
discretionary function to enforce Alabama criminal law.60 Defendant’s presence at
plaintiff’s home and subsequent actions all stemmed from his position as a police
officer for the Town of Rogersville. Therefore, the burden shifts to plaintiff to
demonstrate that defendant acted “willfully, maliciously, fraudulently, in bad faith,
beyond his . . . authority, or under a mistaken interpretation of law.” Cranman, 792
Kennedy, 992 So. 2d 1276, 1282 (Ala. 2008) (citing Blackwood v. City of Hanceville, 936 So. 2d
495, 504 (Ala. 2006) (citing Howard v. City of Atmore, 887 So. 2d 201, 203 (Ala. 2003))).
60

See doc. no. 28 (Defendant’s Brief) ¶¶ 5–6; doc. no. 29-2 (Shireman Affidavit) ¶¶ 3–4.

27

So. 2d at 405 (alteration supplied); see Ex parte Kennedy, 992 So. 2d at 1282 (citing
Ex parte Estate of Reynolds, 946 So. 2d at 452). In the context of a warrantless
arrest, the absence of arguable probable cause defeats an officer’s claim to immunity
under Alabama Code § 6-5-338. Borders v. City of Huntsville, 875 So. 2d 1168, 1179
(Ala. 2003) (“Although this Court has not directly addressed the issue of the
relationship between probable cause and discretionary-function immunity [under
Alabama Code § 6-5-338], we agree that the standard of ‘arguable probable cause’
should govern further proceedings in this case.” (alteration supplied)). Therefore,
defendant cannot be entitled to State-agent immunity as a matter of law if a genuine
issue of material fact exists as to whether defendant had arguable probable cause to
effect an arrest of plaintiff under state law. See id. at 1180 (“The district court denied
the summary-judgment motion in [Micalizzi v. Ciamarra, 206 F. Supp. 2d 564, 576
(S.D. N.Y. 2002)] because, under the evidence, when viewed most favorably to the
plaintiff, ‘no reasonable police officer could have believed that he had probable cause
to arrest plaintiff.’ 206 F. Supp. 2d at 576. We must determine whether the same can
be said of this case.” (alteration supplied)).
1.

False arrest and imprisonment

“False imprisonment consists in the unlawful detention of the person of another
for any length of time whereby he is deprived of his personal liberty.” Ala. Code §
28

6-5-170. A false arrest will support a claim for false imprisonment. E.g., Upshaw v.
McArdle, 650 So. 2d 875, 878 (Ala. 1994). As previously discussed, a genuine issue
of material fact remains as to whether defendant possessed either actual or arguable
probable cause to arrest plaintiff for assault, resisting arrest, escape, or reckless
endangerment.61 The same analysis applies to defendant’s state law claims.62 As
defendant cannot demonstrate that either actual or arguable probable cause for his
attempted arrest of plaintiff existed as a matter of law,63 defendant is not entitled to
State-agent immunity for plaintiff’s false arrest and false imprisonment claim.
2.

Assault and battery

Under Alabama law, excessive force when effecting an arrest constitutes
assault and battery. See Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000);
Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000); Sheth v. Webster, 145 F.3d
61

See supra Part III.A.

62

In addition, reckless endangerment is a misdemeanor under Alabama law. Ala. Code §
13A-6-24. An individual may not be arrested for a misdemeanor under Alabama law unless the
misdemeanor is committed in the presence of the arresting officer. Crosby v. Monroe County, 394
F. 3d 1328, 1333 (11th Cir. 2004). Defendant’s contention that probable cause existed for plaintiff’s
arrest for reckless endangerment is based entirely on behavior that occurred out of defendant’s
presence; therefore, it is indisputable as a matter of state law, based on facts alleged by defendant
and admitted by plaintiff, that no actual or arguable probable cause existed for the arrest of plaintiff
for reckless endangerment. See supra note 48.
63

It is true that plaintiff bears the burden “to show that one of the two categories of
exceptions to State-agent immunity recognized in Cranman is applicable.” Ex parte Kennedy, 992
So. 2d 1276, 1282 (Ala. 2008). But by alleging in both his sworn deposition and in his response
brief that he did not strike defendant before defendant attempted to place him under arrest, plaintiff
has created a genuine issue of material fact sufficient to defeat defendant’s claim of immunity at the
summary judgment stage.

29

1231, 1238 (11th Cir. 1998); Thornton v. City of Macon, 132 F.3d 1395, 1398 (11th
Cir. 1998); Franklin v. City of Huntsville, 670 So. 2d 848, 852–53 (Ala. 1995).
Absent probable cause, then, the use of any force at all is considered excessive in
effectuating an unlawful arrest. See Ala. Code § 13A-3-27(a) (“A police officer is
justified in using that degree of physical force which he reasonably believes to be
necessary . . . unless the peace officer knows that the arrest is unauthorized.”
(alteration supplied)). A genuine issue of material fact exists as to whether the initial
attempted arrest of plaintiff was lawful (that is, based on probable cause). Therefore,
without reaching the merits of plaintiff’s assault and battery claim, defendant cannot
be entitled to summary judgment on the issue of State-law immunity or the
substantive issue of whether defendant utilized excessive force in effecting the arrest
of plaintiff, as both determinations turn on whether or not plaintiff initiated contact
with defendant prior to the attempted arrest. The same genuine issue of material fact
that precludes summary judgment for defendant on defendant’s qualified immunity
claims therefore also precludes summary judgment for defendant on defendant’s
State-law immunity claims.
III. CONCLUSION AND ORDER
For the reasons discussed herein, it is ORDERED that defendant’s motion for
summary judgment be, and it hereby is, DENIED. The action will be set for pretrial
30

conference by separate order.
DONE and ORDERED this 17th day of September, 2013.

______________________________
United States District Judge

31