Gaillard v. Commins et al

Filing 48

ORDER granting 25 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment. Signed by Chief Judge William H. Steele on 3/25/2013. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WINSTON GAILLARD, etc.,

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) CIVIL ACTION 12-0228-WS-N
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Plaintiff,
v.
CITY OF SATSUMA, et al.,
Defendants.

ORDER
This matter is before the Court on the defendants’ motions for summary
judgment. (Docs. 25, 26). The parties have filed briefs and evidentiary materials
in support of their respective positions, (Docs. 25, 27-30, 33, 35-37, 40-42), and
the motions are ripe for resolution. After careful consideration, the Court
concludes that the City’s motion is due to be granted and that Commins’ motion is
due to be granted in part and denied in part.
BACKGROUND
According to the first amended complaint, (Doc. 2, Exhibit 80 at 899-905),
the plaintiff’s decedent (“Jermaine”) was a passenger in a vehicle driven by
Hillary Baldwin on July 29, 2008. Baldwin’s vehicle was being pursued by law
enforcement vehicles from three different jurisdictions. Once Baldwin’s vehicle
was stopped, Jermaine exited and ran across the road, in the course of which
Officer Commins of the Satsuma Police Department (“the Department”) ran him
over, killing him. The defendants are Commins and the City of Satsuma (“the
City”).1 The four counts, each asserted against both defendants, allege state
1

The style of the amended complaint reads, “City of Satsuma; Officer Samuel
Peter Commins; of the City of Satsuma Police Department, et al., Defendants.” (Doc. 2,

claims of negligence and wrongful death; state constitutional claims under Section
1983; and federal constitutional claims under Section 1983. The plaintiff
concedes that the City is entitled to summary judgment with respect to the Section
1983 claims. (Doc. 36 at 12, 22, 24).
DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)

Exhibit 80 at 899). Despite this unfortunate wording, it is clear from the amended
complaint that the Satsuma Police Department is not a defendant and that there no other
defendants. No party argues otherwise.
2

(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position. Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.

3

I. Federal Claims.
Count Four alleges that Commins violated Jermaine’s Fourth Amendment
right to be free of unreasonable searches and seizures, due to the application of
excessive force. Count Three asserts a welter of other constitutional claims. (Doc.
2, Exhibit 80 at 903-04).
A. Excessive Force.
“The Fourth Amendment’s [right to] freedom from unreasonable searches
and seizures encompasses the plain right to be free from the use of excessive force
in the course of an arrest.” Brown v. City of Huntsville, 608 F.3d 724, 737 (11th
Cir. 2010) (internal quotes omitted). Commins denies that any seizure occurred or
that any constitutional violation occurred. Commins argues further that he is
entitled to qualified immunity as to any constitutional violation. (Doc. 29 at 1722).
1. Seizure.
“The Fourth Amendment covers only searches and seizures ….” County of
Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (internal quotes omitted). “A
Fourth Amendment seizure occurs when there is a governmental termination of
freedom of movement through means intentionally applied.” Beshers v. Harrison,
495 F.3d 1260, 1265 (11th Cir. 2007) (internal quotes omitted); see also Tennessee
v. Garner, 471 U.S. 1, 7 (1985) (“[T]here can be no doubt that apprehension by
the use of deadly force is a seizure subject to the reasonableness requirement of
the Fourth Amendment.”). Thus, “if a police cruiser pulls alongside a fleeing car
and sideswipes it, thereby producing a crash, a seizure occurs.” Beshers, 495 F.3d
at 1265-66. But “no Fourth Amendment seizure would take place where a
pursuing police car sought to stop the suspect only by the show of authority
represented by flashing lights and continuing pursuit, but accidentally stopped the
suspect by crashing into him.” Lewis, 523 U.S. at 844 (internal quotes omitted).
4

Commins argues that no seizure occurred, on the grounds that he struck
Jermaine by accident. (Doc. 29 at 18). After reviewing the video recording made
from Commins’ vehicle, (Doc. 37, Exhibit 5), and other evidence identified by the
plaintiff, the Court concludes that a genuine issue of material fact exists as to
whether Commins deliberately ran over Jermaine for the purpose of preventing his
escape, thereby effecting a seizure.
The video shows Jermaine plainly visible in a white T-shirt, running along
Bay Bridge Road from Commins’ right to his left and beginning to cross the
service road on which Commins was traveling, well in front of Commins.
Commins admits he had seen Jermaine by this point. (Commins Deposition at 83,
85). The video shows Jermaine running at least nine strides before being struck,
and it shows Commins turning his vehicle softly to the left (the direction of
Jermaine’s travel), all but ensuring a direct strike. Commins admits that he
accelerated before striking Jermaine, and he admits he did not apply the brakes
until after striking him. (Commins Deposition at 83-84). There is evidence that
Commins was traveling 22 miles per hour as he entered the intersection and that
he was traveling 27 miles per hour at the point of impact. (Sasso Deposition at 7879).
Commins asserts that Jermaine tripped and began to fall just before being
struck by the police vehicle, but the video can reasonably be viewed as reflecting
that Jermaine fell only when struck. At any rate, the video supports a reasonable
inference that Commins would have struck Jermaine even had he not stumbled.
There is also evidence that the collision was not inevitable but could have
been avoided by Commins had he tried to do so by braking and/or swerving.
(Sasso Deposition at 77). The vehicle’s relatively slow speed as it entered the
intersection, and the space between the vehicle and Jermaine at that point, support
this view. That Commins attempted neither braking nor swerving but, on the
contrary, accelerated and turned his vehicle directly into Jermaine’s path, is

5

consistent with an intentional application of force to stop Jermaine and thus a
seizure.
Commins urges the Court to follow Beshers, in which the Eleventh Circuit
rejected the plaintiff’s version of events “to the extent [that version] is clearly
contradicted by the videotapes, such that no reasonable jury could believe it.” 495
F.3d at 1262 n.1. As discussed above, however, the plaintiff’s version is not
contradicted by the video evidence but supported by it. Commins mounts no
argument to the contrary.
For the reasons set forth above, Commins is not entitled to summary
judgment on the plaintiff’s Fourth Amendment claim for want of a seizure.
2. Constitutional violation.
“[A]ll claims that law enforcement officers have used excessive force –
deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a
free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness standard ….” Graham v. Connor, 490 U.S. 386, 395 (1989)
(emphasis omitted). “Determining whether the force used to effect a particular
seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing
of the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Id. at 396
(internal quotes omitted). “[P]roper application [of the reasonableness test]
requires careful attention to the facts and circumstances of each particular case,
including 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. Moreover, “[t]he
‘reasonableness’ of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. Finally, “[t]he calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second judgments –
6

in circumstances that are tense, uncertain, and rapidly evolving – about the amount
of force that is necessary in a particular situation.” Id. at 396-97.
Commins acknowledges that he applied deadly force. (Doc. 29 at 20-21).
In applying the Fourth Amendment’s balancing test, “[t]he intrusiveness of a
seizure by means of deadly force is unmatched. The suspect’s fundamental
interest in his own life need not be elaborated upon. The use of deadly force also
frustrates the interest of the individual, and of society, in judicial determination of
guilt and punishment.” Tennessee v. Garner, 471 U.S. 1, 9 (1985). The
individual’s side of the Fourth Amendment scale is thus at its very weightiest
when deadly force is applied, such that both the countervailing governmental
interest and the attendant circumstances must be correspondingly weighty in order
to tilt the scale in the defendant’s favor.
Commins suggests he struck Jermaine in order to avoid striking others,
rather than in order to seize Jermaine. (Commins Deposition at 83, 86). As noted
in Part I.A.1, however, the evidence presented would allow a jury to find that
Commins struck Jermaine in order to seize him. Therefore, for purposes of this
motion the Court must limit the countervailing governmental interest at stake to
that of preventing a felony suspect from escaping.
“The use of deadly force to prevent the escape of all felony suspects,
whatever the circumstances, is constitutionally unreasonable.” Garner, 471 U.S.
at 11. Commins, invoking the circumstances found relevant in Graham, asserts –
though without any analysis, authority or argument – that his use of deadly force
to prevent Jermaine’s escape was constitutionally reasonable due to the severity of
the crime of which Jermaine and Baldwin were suspected, their past and
continuing efforts to evade arrest by flight, and the danger posed by the car chase.
In addition, he points to the suspects’ criminal history. (Doc. 29 at 21-22; Doc. 41
at 8).
Before addressing these circumstances, the Court must point out that the
freedom of a law enforcement officer to employ deadly force in order to prevent
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escape has been restricted by Garner. “This case requires us to determine the
constitutionality of the use of deadly force to prevent the escape of an apparently
unarmed suspected felon. We conclude that such force may not be used unless it
is necessary to prevent the escape and the officer has probable cause to believe
that the suspect poses a significant threat of death or serious physical injury to the
officer or others.” 471 U.S. at 3.2
The Supreme Court in Garner repeatedly drove home the central
proposition that the use of deadly force to stop a fleeing suspected felon is
constitutionally unjustified unless the suspect is armed or the officer has probable
cause to believe the suspect otherwise poses a sufficient danger to the officer or to
others. For example, “[w]here the suspect poses no immediate threat to the officer
and no threat to others, the harm resulting from failing to apprehend him does not
justify the use of deadly force to do so.” 471 U.S. at 11. Similarly, “we are not
convinced that the use of deadly force is a sufficiently productive means of
accomplishing [the government’s law enforcement] goals to justify the killing of
nonviolent suspects,” id. at 10, and “[p]etitioners and appellant have not persuaded
us that shooting nondangerous fleeing suspects is so vital as to outweigh the
suspect’s interest in his own life.” Id. at 11. Thus, “[a] police officer may not
seize an unarmed, nondangerous suspect by shooting him dead,” and a statute
authorizing deadly force against such a fleeing suspect “is unconstitutional” to that
extent. Id. On the flip side, “[w]here the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape by using deadly
force.” Id. For example, “if the suspect threatens the officer with a weapon or
there is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly force may be
2

The threat required by Garner is an “immediate threat.” Vaughan v. Cox, 343
F.3d 1323, 1330, 1332 (11th Cir. 2003). This is consistent with Graham, which focuses
on “whether the suspect poses an immediate threat to the safety of the officers or others.”
490 U.S. at 396.
8

used if necessary to prevent escape,” at least if any feasible warning has been
given. Id. at 11-12.
Commins argues that, in light of Scott v. Harris, 550 U.S. 372 (2007),
Garner no longer applies. (Doc. 29 at 21). The Scott Court did rule that “Garner
did not establish a magical on/off switch that triggers rigid preconditions
whenever an officer’s actions constitute ‘deadly force.’” 550 U.S. at 382. Instead,
“Garner was simply an application of the Fourth Amendment’s ‘reasonableness’
test … to the use of a particular type of force in a particular situation.” Id. at 382.
This is no doubt correct, but the “particular situation” which Garner addresses is
“the flight on foot of an unarmed suspect,” id. at 383, which is the situation
presented here. Garner thus applies.3
The video shows that Jermaine was wearing a T-shirt and shorts and that he
had no weapon in either hand. Moreover, the exhaustive internal investigation
report and attachments contain no hint that Jermaine was armed. (Doc. 27, Exhibit
8). Commins admits that Jermaine “wasn’t brandishing a weapon, putting a third
party at risk [or] another officer at risk.” (Commins Deposition at 93). This case
3

Scott involved a motorist, not a pedestrian. Even in this context, the Scott Court
did not hold that the use of deadly force to stop a fleeing suspect could be justified absent
any threat of harm posed by the suspect; instead, the Court relied on the “substantial and
immediate risk of serious physical injury to others” posed by the plaintiff’s high-speed
flight. 550 U.S. at 386.
Eleventh Circuit cases applying Scott likewise have found such a threat of
physical harm when upholding the application of deadly force. See Terrell v. Smith, 668
F.3d 1244, 1249, 1254-55 (11th Cir. 2012) (where the plaintiff’s decedent was shot by a
pedestrian officer as he attempted to drive away, “at least three individuals … faced the
immediate and utterly foreseeable risk of being struck by Zylstra’s fleeing car”); Penley
v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (where the decedent brought a realistic
plastic gun to school and refused to drop it when commanded, he posed a “grave
danger”); Sharp v. Fisher, 532 F.3d 1180, 1184 (11th Cir. 2008) (the decedent’s highspeed motor vehicle flight “posed a substantial and immediate risk of serious physical
injury to others”); Beshers, 495 F.3d at 1268 (similar); Long v. Slaton, 508 F.3d 576,
581-82 (11th Cir. 2007) (the mentally unstable decedent’s conduct in taking control of a
police cruiser and beginning to drive it made him appear “gravely dangerous”).

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is thus like Garner, where the defendant “saw no sign of a weapon and, though not
certain, was ‘reasonably sure’ and ‘figured’ that [the suspect] was unarmed.” 471
U.S. at 3. “Restated in Fourth Amendment terms, this means [the defendant] had
no articulable basis to think [the suspect] was armed.” Id. at 20. Thus, as in
Garner, the suspect was “apparently unarmed,” and the use of deadly force to
prevent his escape was constitutionally permissible only if Commins “ha[d]
probable cause to believe that [Jermaine] pose[d] a significant threat of death or
serious physical injury to [Commins] or others.” Id. at 3.
With this proper context in mind, the Court now turns to Commins’
argument that the severity of the crime of which Jermaine and Baldwin were
suspected; their efforts to evade arrest by flight; the danger posed by the car chase;
and/or their criminal history made it constitutionally reasonable to kill the
unarmed Jermaine to prevent his escape. The relevant inquiry is whether these
matters furnished Commins with probable cause to believe that Jermaine, although
unarmed, nevertheless posed the requisite threat to Commins or to others.
The starting point of this inquiry must be Commins’ own testimony. As
noted, Commins concedes that Jermaine “wasn’t … putting a third party at risk,
another officer at risk.” (Commins Deposition at 93). Because “the question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them,” Graham, 490 U.S. at 397, Commins’ admission
that the facts and circumstances confronting him reflected no threat to anyone
weighs heavily against him.
Jermaine and Baldwin were suspected of being in the process of
transporting two to three kilograms of cocaine from Atlanta to Mobile. (Burch
Affidavit at 2-3). Commins did not know the quantity involved, but Sergeant Guy
had informed him “that there was some dope coming southbound on 65.”
(Commins Deposition at 57, 69-70). For present purposes, the Court assumes

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Commins understood that Jermaine and Baldwin were suspected of conspiring to
possess cocaine with intent to distribute.4
As noted, Graham includes “the severity of the crime at issue” in the
calculus of the reasonableness of the force employed. But in the deadly force
context, the relevant characteristic of the crime is not some abstract notion of
severity but whether that crime portends a real risk of impending violence
sufficient to justify death as a prophylactic measure. The crime at issue in Garner
was burglary, which the Supreme Court acknowledged to be “a serious crime,” yet
the Court said it “cannot agree that it is so dangerous as automatically to justify
the use of deadly force.” 471 U.S. at 21. Thus, despite the defendant’s awareness
that the decedent was a burglary suspect, he “did not have probable cause to
believe that Garner, whom he correctly believed to be unarmed, posed any
physical danger to himself or others.” Id.
A crime “involving the infliction or threatened infliction of serious physical
harm” will support probable cause to employ deadly force. Garner, 471 U.S. at
11. In such a case, the suspect’s “mere being at large poses an inherent danger to
society.” Scott, 550 U.S. at 382 n.9. Commins does not suggest that Jermaine’s
act of transporting cocaine involved the actual or threatened infliction of serious
physical harm, and nothing in the record even remotely suggests that Jermaine or
Baldwin had engaged in violence, or had threatened to engage in violence,
incident to their drive from Atlanta.5 The crime of which Jermaine and Baldwin
4

This is the charge on which Baldwin was indicted and to which he pleaded
guilty. (Doc. 27, Exhibit 7 at 11-12, 34).
5

The connection between drug trafficking and violence depends on the presence
of weapons. E.g., United States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011) (“Guns
and violence go hand-in-hand with illegal drug operations.”) (internal quotes omitted).
Just as an armed burglar “would present a different situation,” Garner, 471 U.S. at 21, an
armed drug dealer would as well. But, as already discussed, there is evidence that
Jermaine was unarmed, that he was obviously unarmed, and that Commins realized he
was unarmed.

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were suspected does not support the existence of probable cause to believe
Jermaine posed a significant and immediate threat of death or serious physical
injury.
Commins next relies on the fact that Jermaine was attempting to elude
capture when he was struck by Commins’ vehicle. That fact, however, merely sets
the stage for the constitutional analysis; it does not constitute a factor supporting
Commins’ application of deadly force to prevent escape, any more than did the
flight of the unarmed burglary suspect in Garner.
Commins also points to the danger posed by the suspects’ recent highspeed flight from pursuing law enforcement vehicles. Had Commins or another
officer employed appropriate means to force Baldwin’s vehicle to stop, thereby
protecting the lives of citizens and the officers, and had Baldwin or Jermaine been
injured or killed in the attempt, such action might well have proved
constitutionally reasonable, under the reasoning of Scott and like cases.6 But the
danger posed by Baldwin’s driving completely ended when his vehicle stopped,
and Commins cannot rely on that past, historical danger to justify his later use of
deadly force. Garner requires that there be a present threat of serious physical
harm, and nothing about the car chase suggested that a running, unarmed Jermaine
posed such a present threat. Nor can Baldwin’s reckless driving be treated as an
underlying crime involving the infliction or threatened infliction of serious
physical harm, since the Scott Court ruled that the plaintiff’s high-speed flight “did
not pose that type of inherent threat to society” demanded by Garner’s focus on
crimes involving the actual or threatened infliction of serious physical harm. 550
U.S. at 382 n.9.
Finally, Commins points to the suspects’ criminal history. Although Garner
did not mention this as a factor, the Scott Court noted that, “so far as the police
6

See Scott, 550 U.S. at 382 n.9 (“[I]t was respondent’s flight itself (by means of a
speeding automobile) that posed the threat of ‘serious physical harm … to others.’”)
(quoting Garner, 471 U.S. at 11).
12

were aware, [the plaintiff] had no prior criminal record.” 550 U.S. at 382 n.9. The
Court thus assumes that criminal history could in a proper case provide probable
cause to believe that a particular suspect poses the requisite threat of death or
serious physical injury if allowed to escape.
The threshold problem with Commins’ argument is that, when he struck
Jermaine, he had no idea what criminal history, if any, Jermaine or Baldwin had.
(Commins Deposition at 69-72, 75-76; Doc. 41 at 3-4). Commins says this is
immaterial because officers from other participating jurisdictions were aware of
this history, and their awareness is imputed to him. (Id.).
“Where there is at least minimal communication between different officers,
the collective knowledge of the officers determines probable cause.” United
States v. Allison, 953 F.2d 1346, 1350 (11th Cir. 1992); accord Grider v. City of
Auburn, 618 F.3d 1240, 1257 (11th Cir. 2010) (“Probable cause may exist based on
the collective knowledge of law enforcement officials derived from reasonably
trustworthy information.”). Commins was in communication only with Sergeant
Guy, and that minimally. There is no evidence that Sergeant Guy was aware of
the suspects’ criminal histories, but there is evidence that, at least prior to his
joinder in the pursuit, he had been in at least minimal communication with one or
more other participating officers. Though far from clear, the Court will assume
for present purposes that the evidence supports the “minimal communication”
prerequisite for invoking the collective knowledge rule.
But in the cases noted above and in others cited by Commins, at issue was
probable cause to search or arrest, not the reasonableness of a decision to use
deadly force to effect an arrest (as measured by the existence of probable cause to
believe the suspect posed a significant and immediate threat of death or serious
physical injury). This is not an idle distinction. As noted, the intrusion visited by
death is “unmatched” and irreversible. A rule that would allow defendants to kill
unarmed, nondangerous fleeing suspects with impunity so long as – unknown to
the defendant – some other involved officer happens to have information about the
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suspect’s criminal history would only encourage such intrusions, with resulting
unconstitutional deprivations of life when it turns out that no involved officer had
such information. Commins has offered no authority supporting his argument and
no explanation why the Court should embrace such a perverse result. As
discussed below, the case law is contrary to his position.
First, the Graham Court requires that “[t]he ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” 490 U.S. at 396. To credit
Commins with information he did not possess is to violate this requirement,
shifting the focus from the perspective of a reasonable officer on the scene to the
20/20 vision of hindsight.
Second, the Eleventh Circuit has confirmed that whether an officer’s
employment of deadly force was objectively reasonable “must be evaluated from
the perspective of a reasonable officer possessing the same particularized
information as the subject officer.” Penley v. Eslinger, 605 F.3d 843, 852 (11th
Cir. 2010) (internal quotes omitted). The particularized information Commins
possessed when he struck Jermaine did not include information concerning the
suspects’ criminal history.
Finally, the Second Circuit has directly considered and rejected Commins’
argument. In Little v. Davis, 851 F.2d 605 (2nd Cir. 1988), the suspect had escaped
from a police car by assaulting his captors. The officer who re-captured the
suspect (by shooting him several times) knew nothing of this assault but argued
such knowledge should be attributed to him for purposes of the Garner analysis.
Id. at 606-07. The Second Circuit disagreed, holding that “[t]he collective
knowledge of the police may bear directly on the legality of a decision to arrest a
suspect, but reasonableness [of the decision to use deadly force to effect the arrest]
is to be determined in reference to the specific circumstances, acts, and individuals
involved in effecting the arrest.” Id. at 607. Thus, “the magistrate was perfectly
correct in looking at the circumstances as a person in [the defendant’s] shoes saw
14

them, as opposed to considering all the information that all the other officers
possessed, in determining whether [the defendant’s] conduct was reasonable”
under Garner.
For these reasons, the Court concludes that Commins cannot rely on the
suspects’ unknown criminal history to establish probable cause to believe
Jermaine posed the requisite threat of death or serious physical injury.7
Even were awareness of the suspects’ criminal history to be imputed to
Commins, it would not establish the necessary probable cause to believe that
Jermaine posed the requisite threat of violence. Most of that history involves drug
offenses,8 which adds nothing to what Commins already knew. Baldwin has not
been shown to have had any violent criminal history at all. Jermaine’s only
conviction of a crime of violence was for manslaughter, for which he was arrested
in June 1994. (Doc. 27, Exhibit 8 at 81). It strains credulity to suggest that,
because Jermaine once killed someone either recklessly or in the heat of passion,9
he posed to others a significant and immediate threat of death or serious physical
injury on a specific day over 14 years later, while on foot and unarmed. Commins
presents no argument or authority to the contrary.10

7

The collective knowledge rule is sometimes invoked where the arresting officer
has no personal information but has been directed to effect the seizure by others who do
have such knowledge. E.g., United States v. Glinton, 154 F.3d 1245, 1257 (11th Cir.
1998). An officer who is directed to apply deadly force perhaps could rely on collective
knowledge in such a situation, since he has been given some basis for employing deadly
force. Here, however, Commins acted completely on his own in using deadly force.
8

(Doc. 27, Exhibit 7 at 17; id., Exhibit 8 at 80-94).

9

Ala. Code § 13A-6-3.

10

Jermaine was convicted in 1991 of menacing, (Doc. 27, Exhibit 8 at 80), which
indicates he “intentionally place[d] or attempt[ed] to place another person in fear of
imminent serious physical injury.” Ala. Code § 13A-6-23. This conduct is even more
remote, and it involves no actual violence. It cannot support probable cause to believe
Jermaine posed a threat of serious violence on a specific day some 17 years later.

15

Even if Commins had possessed probable cause to believe that Jermaine
posed a significant and immediate threat of death or serious physical injury if
allowed to escape, his use of deadly force to effect a seizure would be
unconstitutional under Garner unless he “reasonably believe[d] that the use of
deadly force was necessary to prevent escape.” Vaughan v. Cox, 343 F.3d 1323,
1329-30 (11th Cir. 2003). By Commins’ own count, three other officers (from the
police vehicles arriving before him) were already hot on the heels of Jermaine and
Baldwin, who were running along Bay Bridge Road, a four-lane paved
thoroughfare. (Guy Affidavit at 3; Eiland Affidavit at 3; Gifford Affidavit at 2;
Doc. 41 at 7). Indeed, Baldwin was apprehended on Bay Bridge Road. (Guy
Affidavit at 3). As in Vaughan, a properly functioning jury could find that the use
of deadly force was not necessary to prevent Jermaine from escaping capture.
For the reasons set forth above, Commins is not entitled to summary
judgment on the plaintiff’s Fourth Amendment claim for want of a constitutional
violation.
3. Qualified immunity.
“[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he
burden is first on the defendant to establish that the allegedly unconstitutional
conduct occurred while he was acting within the scope of his discretionary
authority.” Harbert International, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir.
1998). The burden then shifts to the plaintiff to show that the defendant’s conduct
“violated a clearly established statutory or constitutional right.” Grayden v.
Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003). As discussed below, Commins has
failed to carry his initial burden, and his bid for qualified immunity must therefore
fail.
16

“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority. ... If, and only if, the defendant does that will the burden
shift to the plaintiff to establish that the defendant violated clearly established
law.” Harbert International, 157 F.3d at 1281 (emphasis added). The reason is
that an official acting outside the scope of his discretionary authority “ceases to act
as a government official and instead acts on his own behalf,” so that “the policies
underlying the doctrine of qualified immunity no longer support its application.”
Id.
For purposes of federal qualified immunity analysis, a defendant acts
within his discretionary authority when “his actions were undertaken pursuant to
the performance of his duties and within the scope of his authority.” Rich v.
Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (internal quotes omitted). For this
inquiry, “[w]e ask whether the government employee was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).
The first prong of this test requires that the defendant “have been
performing a function that, but for the alleged unconstitutional infirmity, would
have fallen within his legitimate job description.” Holloman, 370 F.3d at 1266
(emphasis omitted). “The inquiry is not whether it was within the defendant’s
authority to commit the allegedly illegal act,” but “whether the act complained of,
if done for a proper purpose, would be within, or reasonably related to, the outer
perimeter of an official’s discretionary duties.” Harbert International, 157 F.3d at
1282 (internal quotes omitted).11

11

For example, the issue is not whether a marshal has the authority to deliver a
prisoner into unconstitutional conditions but whether he has the authority to transport and
deliver prisoners. Harbert International, 157 F.3d at 1282 (describing Jordan v. Doe, 38
F.3d 1559, 1566 (11th Cir. 1994)).
17

As for the second prong, “[e]ach government employee is given only a
certain ‘arsenal’ of powers with which to accomplish her goals.” Holloman, 370
F.3d at 1267. “Pursuing a job-related goal through means that fall outside the
range of discretion that comes with an employee’s job is not protected by qualified
immunity.” Id.
“[A] government official can prove he acted within the scope of his
discretionary authority by showing objective circumstances which would compel
the conclusion that his actions were undertaken pursuant to the performance of his
duties and within the scope of his authority.” Roberts v. Spielman, 643 F.3d 899,
903 (11th Cir. 2011) (internal quotes omitted). The Court must “interpre[t] the
evidence in the light most favorable to the plaintiff.” Townsend v. Jefferson
County, 601 F.3d 1152, 1158 (11th Cir. 2010). The quantum and quality of
evidence necessary to meet the defendant’s burden “vary in proportion to the
degree of discretion inherent in the defendant’s office,” Harbert International,
157 F.3d at 1282 (internal quotes omitted), but ordinarily “there must be a
showing by competent summary judgment materials of objective circumstances
that would compel th[e] conclusion” that the defendant acted within his
discretionary authority. Id. (internal quotes omitted). Certainly “[a] bald assertion
that the acts were taken pursuant to the performance of duties and within the scope
of duties will not suffice” to meet the defendant’s burden of proof. Id. (internal
quotes omitted).
Commins’ entire effort to satisfy his burden of showing that he was acting
within his discretionary authority consists of the unadorned assertion in his brief,
parroting Rich, that his actions “were undertaken pursuant to the performance of
his duties and within the scope of his authority as an officer for the Satsuma Police
Department.” (Doc. 29 at 11). This non-evidentiary ipse dixit is but a “bald
assertion,” inadequate to meet Commins’ threshold burden. While it may be
assumed that pursuing and arresting suspects, including by employing deadly
force, generally falls within a police officer’s legitimate job description, it is far
18

from obvious that Commins did so through means that were within his power to
utilize.
Although the plaintiff is under no burden to disprove that Commins was
acting within his discretionary authority, he has identified several points that raise
legitimate questions in that regard. First, Commins was off duty at the time of the
vehicle pursuit and use of force. (Commins Deposition at 57).12 Second,
Commins was acting outside the corporate limits of the City; indeed, he applied
force at the boundary between the cities of Prichard and Mobile, several
jurisdictions beyond Satsuma.13 Third, the Department has a written policy
governing vehicle pursuits, which includes the following language:
A unit may become directly involved in the pursuit [initiated
by another police agency, as was the pursuit of Baldwin and Jermaine]
if authorized by the supervisor as long as the pursuit remains within our
corporate limits. To continue outside of our corporate limits, authorization
to do so must be received from the supervisor.
(Doc. 37, Exhibit 4 at 4). Commins was required by his employer to act “in strict
accordance” with this policy. (Id. at 1). Commins, who ignores the policy, has
failed at several points to demonstrate that it was satisfied.
First, the policy requires that, in order to participate in a vehicle pursuit not
initiated by the Department, Commins must have been authorized to do so by “the
supervisor,” defined as “[t]he on duty patrol shift watch commander.” (Doc. 37,
Exhibit 4 at 1). The only person with whom Commins had any contact was
Sergeant Guy, (Commins Deposition at 68-69), so the question is whether Guy
was the on duty patrol shift watch commander at the relevant time.
12

See Courson v. McMillian, 939 F.2d 1479, 1488 (11th Cir. 1991) (relying on the
defendant’s “on duty” status in concluding he was acting within his discretionary
authority); German v. Sosa, 399 Fed. Appx. 554, 555 (11th Cir. 2010) (same). An offduty officer may still act within his discretionary authority, but that circumstance calls for
an explanation, which Commins does not provide.
13

In order from north to south lie the incorporated municipalities of Satsuma,
Saraland, Chickasaw, Prichard and Mobile.

19

Commins has not addressed this requirement or whether it was satisfied.
Nevertheless, the Court has reviewed his deposition to see if it resolves the
question. Commins testified that Sergeant Guy was the oncoming supervisor
when Commins went off duty. (Commins Deposition at 57, 67). But Commins
explained that Guy was his supervisor because “[h]e was the only one on shift that
was a sergeant,” (id. at 67), not because he was the patrol shift watch commander.
Commins identified Lieutenant Dukes and the Chief of Police as Sergeant Guy’s
supervisors, (id. at 67-68), but he did not testify that neither was on duty.
Therefore, the record is inconclusive as to whether Sergeant Guy was the on duty
patrol shift watch commander. If he was not, he could not have authorized
Commins to participate in the pursuit.
Second, the policy requires that the officer’s participation in the pursuit be
“authorized” by the appropriate supervisor. The term is undefined, and Commins
has offered no explanation of its reach. It is at least reasonable to construe the
provision as requiring a verbal direction or assent, and there is no evidence that
Sergeant Guy verbally authorized Commins to participate in the pursuit.14
Third, the policy appears to require that, in order to participate in a vehicle
pursuit outside the City’s corporate limits, the officer must have already joined the
pursuit (with proper authorization) within the City’s corporate limits.15 But
Commins has testified that he did not join the other pursuing vehicles until
entering Interstate 65 at Exit 15. (Commins Deposition at 69-70). The Court

14

There is evidence that Commins heard Guy call over the police radio that he
was in pursuit, that Commins asked Guy where he was, that Guy said he was at Exit 19,
and that Commins said “10-4.” (Commins Deposition at 64-66). The two had no further
communication before Commins joined the chase at Exit 15. (Id. at 69-70).
15

The policy provides for an officer’s pursuit outside the city limits only as a
“continu[ance],” which indicates the officer must have joined the pursuit while “the
pursuit remains within our corporate limits.”

20

takes judicial notice that Exit 15 lies almost a mile beyond the City’s corporate
limits.16
Fourth, the policy requires that, in order to participate in a vehicle pursuit
outside the City, the officer must receive fresh authorization from the appropriate
supervisor. Just as Commins has no evidence that Sergeant Guy verbally
authorized him to join the pursuit, he has no evidence that Guy verbally authorized
him to engage in pursuit beyond the City’s corporate limits.
As noted, Commins makes no effort to square his conduct with the
Department’s vehicle pursuit policy. Instead, he argues that any violation of the
policy is irrelevant because the policy defines vehicle pursuit as “[a]n active
attempt by one or more officers to apprehend a suspect operating a motor vehicle
…,” (Doc. 37, Exhibit 4 at 2), and because Baldwin and Jermaine had stopped
operating a motor vehicle seconds before Commins struck Jermaine. (Doc. 41 at
2).17 But Commins has not attempted to support the unlikely proposition that he
had authority to effect a seizure in another jurisdiction immediately upon the
conclusion of the unauthorized vehicle pursuit that took him there, especially
when that seizure was effected by using his pursuit vehicle as a deadly weapon.18

16

Commins testified that he “felt” as though he were part of the pursuit from the
moment he got in his patrol car at his house (which appears to have occurred before the
pursuit left the City). (Commins Deposition at 67). His feelings, of course, are not
sufficient to establish the meaning of the policy. Because the policy speaks of becoming
“directly involved” in the pursuit, it is doubtful that travel through town on the way to
join the pursuing vehicles constitutes pursuit under the policy.
17

According to the video evidence, Commins struck Jermaine within 15 seconds
after the Baldwin vehicle stopped.
18

Indeed, Commins’ effort to draw a line of demarcation between the pursuit of
Baldwin’s vehicle and his striking of Jermaine, if accepted, would be independently fatal
to his invocation of discretionary authority. This is so because Commins explicitly limits
his assertion of discretionary authority to his actions “in pursuing the fleeing vehicle.”
(Doc. 29 at 11). If striking Jermaine immediately after he exited the fleeing vehicle was
not part of Commins’ pursuit of the fleeing vehicle, then Commins has not asserted
discretionary authority as to the conduct for which he has been sued.
21

The Court does not rule that Commins could not meet his burden of
showing that he acted within his discretionary authority. The Court rules only
that, given his off-duty status, his application of deadly force far from his home
jurisdiction, and his apparent violations of the Department’s vehicle pursuit policy,
his mere non-evidentiary ipse dixit that he acted within his discretionary authority
is inadequate to meet that burden.
Because Commins has not carried his threshold burden, the Court does not
consider whether his conduct violated a clearly established constitutional right.
For the reasons set forth above, Commins is not entitled to summary judgment on
the plaintiff’s Fourth Amendment claim on the grounds of qualified immunity.
B. Other Constitutional Rights.
Count Three alleges that Commins’ conduct violated Jermaine’s rights to
substantive due process, procedural due process, equal protection, free speech and
petitioning the government. (Doc. 2, Exhibit 80 at 903-04). The Court considers
these claims in turn.
1. Substantive due process.
“Today we ... hold that all claims that law enforcement officers have used
excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’
of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a ‘substantive due process’
approach.” Graham, 490 U.S. at 395. As discussed in Part I.A.1, there is
evidence that Commins struck Jermaine intentionally, in order to prevent his
escape, and thus effected a seizure. Under this construction of the evidence, the
plaintiff can have no claim for deprivation of life without substantive due process.
But Commins offers two other explanations for his conduct: (1) that he
struck Jermaine by accident, because he didn’t see him in time to avoid him; and
(2) that he struck him intentionally, but for the purpose of avoiding hitting
22

Baldwin or Sergeant Guy rather than for the purpose of preventing Jermaine’s
escape. (Commins Deposition at 83, 86; Doc. 29 at 18). A properly functioning
jury could accept either version, which would remove the case from the strictures
of Graham and make possible a substantive due process claim. Commins makes
no argument to the contrary. Instead, he argues that the plaintiff cannot prove he
acted with the mental state required to support such a claim.
In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the plaintiff’s
decedent was a passenger on a motorcycle fleeing the police at high speeds. When
the motorcycle tipped over during a high-speed turn, the defendant’s pursuing
patrol car struck the dismounted passenger, killing him. Id. at 837. The Court
first held that no seizure had occurred, since the defendant had neither struck the
passenger intentionally nor desired to arrest his movement by doing so. Id. at 844.
Thus, a substantive due process claim was possible. Id. at 843-44.
The Lewis Court then explored the requirements for such a claim. “Since
the time of our early explanations of due process, we have understood the core of
the concept to be protection against arbitrary action.” 523 U.S. at 845.
Arbitrariness is a restrictive standard, and “[o]ur cases dealing with abusive
executive action have repeatedly emphasized that only the most egregious official
conduct can be said to be arbitrary in the constitutional sense ….” Id. at 846
(internal quotes omitted). Specifically, “for half a century now we have spoken of
the cognizable level of executive abuse of power as that which shocks the
conscience.” Id. “Thus, in a due process challenge to executive action, the
threshold question is whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Id. at 847 n.8.
The degree of culpability needed to shock the conscience depends on the
context of the behavior. In the context of prison administration in a nonemergency context, where time and incentives exist for reflection before acting,
deliberate indifference may be sufficiently egregious. 523 U.S. at 849, 851. But
23

“[d]eliberate indifference that shocks in one environment may not be so patently
egregious in another ….” Id. at 850. Thus, force applied in the context of a prison
riot does not support a substantive due process claim unless it is applied
“maliciously and sadistically for the very purpose of causing harm.” Id. at 852-53
(internal quotes omitted).
In the context of “a high-speed automobile chase aimed at apprehending a
suspected offender,” the Lewis Court held that “only a purpose to cause harm
unrelated to the legitimate object of arrest will satisfy the element of arbitrary
conduct shocking to the conscience.” 523 U.S. at 836. Commins argues there is
no evidence that he acted with such a purpose. (Doc. 29 at 15). The Court is
unable to agree.
Were the jury to find that Commins struck Jermaine unintentionally, as he
sometimes argues, there would be no purpose to cause harm, and the plaintiff’s
substantive due process claim would fail. Were the jury to find that Commins
struck Jermaine intentionally but in order to avoid striking Baldwin and/or
Sergeant Guy, as he sometimes claims, it is doubtful that he could be found to
have acted with a purpose to cause harm or that such a Sophie’s choice would
shock the conscience at the constitutional level.
The evidence, however, supports another construction. As noted, the video
evidence and Commins’ own testimony reflect that he saw Jermaine in time to
avoid him but, rather than braking and/or swerving away from Jermaine, he
accelerated and made a soft turn directly into Jermaine’s path, ensuring a harmful
collision. Although Commins claims he struck Jermaine in order to avoid striking
Sergeant Guy, the video evidence reflects that Guy had not exited his vehicle at
the moment of collision. And although Baldwin does appear in the video, running
about six feet behind Jermaine, a properly functioning jury could find, from the
video evidence and the experts’ opinions, that Commins easily could have avoided
both Jermaine and Baldwin by braking and/or making a hard turn. Thus, the jury
could find that Commins intentionally struck Jermaine, but neither to effect an
24

arrest nor to avoid striking Baldwin or Sergeant Guy. The absence of any other
reason for striking Jermaine would enable the jury to find that Commins struck
Jermaine for the purpose of gratuitously harming him.
Commins offers no other argument in opposition to the plaintiff’s claim
that he deprived Jermaine of his life without substantive due process. For the
reasons set forth above, Commins is not entitled to summary judgment on this
claim.
2. Procedural due process.
In a two-sentence argument opposing this claim, Commins does no more
than list the elements of such a claim19 and note that “mere lack of due care on the
part of a state official does not state a claim for Procedural Due Process.” (Doc.
29 at 15). The evidence favorable to the plaintiff, of course, reflects much more
than mere lack of due care.
As promised, the Court will not articulate or develop arguments on the
parties’ behalf. On the single ground asserted, Commins is not entitled to
summary judgment as to this claim.20
19

“In this circuit, a § 1983 claim alleging a denial of procedural due process
requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty
or property interest; (2) state action; and (3) constitutionally-inadequate process.”
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
20

In his reply brief, Commins asserts that he must be granted summary judgment
on this claim because the plaintiff offered no argument in opposition. (Doc. 41 at 4-5 &
5 n.4). The law is to the contrary. “[T]he district court cannot base the entry of summary
judgment on the mere fact that the motion was unopposed, but, rather, must consider the
merits of the motion.” United States v. One Piece of Real Property, 363 F.3d 1099, 1101
(11th Cir. 2004). This statement constitutes a holding. Trustees of Central Pension Fund
v. Wolf Crane Service, Inc., 374 F.3d 1035, 1039 (11th Cir. 2004).
Commins insists his position that the plaintiff’s silence is fatal is supported by this
Court’s decision in Godfrey v. Nationwide Vinyl Siding & Home Improvement, LLC, ___
F. Supp. 2d ___, 2012 WL 6569292 (S.D. Ala. 2012). In fact, the Court said in Godfrey
precisely what it says now: “On summary judgment, the Court cannot ‘fill in the blanks’
to formulate a legal argument that a party has not.” Id. at *6. Commins having presented
25

3. Equal Protection.
The Equal Protection Clause “prohibits selective enforcement of the law
based on considerations such as race.” Whren v. United States, 517 U.S. 806, 813
(1996). Such a claim may be raised in the context of the use of force against a
citizen. E.g., McElroy v. City of Birmingham, ___ F.Supp. 2d ___, 2012 WL
4711918 at *12, *22 (N.D. Ala. 2012). “To prove a claim based on a violation of
the Equal Protection Clause of the Fourteenth Amendment, plaintiff must allege
and prove that through state action, similarly situated persons have been treated
disparately, and that [the defendant’s] actions were motivated by race” or some
other protected characteristic. Id. at *23 (internal quotes omitted); accord Benton
v. Roussean, 2011 WL 5592859 at *3 (M.D. Fla. 2011).
As Commins correctly points out, (Doc. 29 at 13-14), the plaintiff has
presented no evidence that Commins treated any similarly situated person more
favorably than Jermaine, much less that he did so because of some protected
characteristic. That lack of evidence is fatal.
Commins assumes that the plaintiff could proceed under a “class of one”
theory. (Doc. 29 at 14 n.3). “To prevail on a ‘class of one’ equal protection claim,
Plaintiffs must show they were intentionally treated differently from others who
were ‘similarly situated’ and that there is no rational basis for the difference in
treatment.” Grider, 618 F.3d at 1263-64. Again, the plaintiff identifies no
similarly situated person treated more favorably than Jermaine.
Count Three indicates that one aspect of the plaintiff’s equal protection
claim is that Commins’ conduct precluded Jermaine from petitioning the
government or seeking access to the courts on an equal basis. (Doc. 2, Exhibit 80
at 903-04). Here again, the plaintiff’s failure to identify any similarly situated
person treated more favorably dooms his claim.
no viable argument against the plaintiff’s procedural due process claim, the Court will not
do so for him.
26

For the reasons set forth above, Commins is entitled to summary judgment
as to the plaintiff’s equal protection claim.
4. Free speech/petitioning the government.
Count Three alleges that Jermaine “was denied the opportunity to petition
the government for a redress of grievances, thereby … denying him free speech
rights.” (Doc. 2, Exhibit 80 at 903). This peculiar claim apparently asserts that,
by killing him, Commins kept Jermaine from seeking redress for Commins’
conduct and from exercising the free speech that such a petition would have
entailed.
Commins’ only response to this claim is the assertion that “the civil rights
of an individual die with that individual and there is no valid claim for inability to
exercise civil rights subsequent to that individual’s death.” (Doc. 29 at 17). The
cases to which he cites, however, stand only for the proposition that, once
someone is deceased, he is no longer a “person” under the Constitution or Section
1983, such that a defendant’s conduct occurring after that death cannot support a
claim in favor of the decedent. E.g., Whitehurst v. Wright, 592 F.2d 834, 840 (5th
Cir. 1979). Commins’ conduct, however, did not follow Jermaine’s death but
preceded it; thus, his cited authority is inapposite and does not support his motion.
Nor does it appear that Jermaine expired before his rights arising from
Commins’ conduct accrued. Jermaine presumably had the right to seek redress for
Commins’ conduct (and to engage in free speech in support of such effort) from
the instant Commins struck him, and Jermaine survived that impact by several
hours. (Doc. 27, Exhibit 8 at 11).
As with the plaintiff’s procedural due process claim, Commins has
presented a single, unsupported argument. As with that claim, the Court will not
develop this argument or propose others that might carry more hope of success.

27

On the single ground asserted, Commins is not entitled to summary judgment as to
this claim.21
II. State Claims.
Count Three includes, in addition to the federal constitutional claims
discussed in Part I.B, several claims under the Alabama Constitution. Count One
asserts a claim of negligence and Count Two a claim for wrongful death. (Doc. 2,
Exhibit 80 at 901-04).
A. Commins.
Commins invokes discretionary function immunity as to the claims in
Counts One and Two and the state claims in Count Three. (Doc. 29 at 22, 27).
The parties agree that this immunity, and the related peace officer immunity
granted by Ala. Code § 6-5-338, is governed by the analysis set forth in Ex parte
Cranman, 792 So. 2d 392 (Ala. 2000). They also agree that Commins has met his
initial burden of showing that, at the relevant time, he was a peace officer engaged
in a function as to which the statute and the doctrine provide immunity. (Doc. 29
at 25-25; Doc. 36 at 17-18). The question thus becomes whether the plaintiff has
presented evidence that Commins acted willfully, maliciously and/or beyond his
authority so as to forfeit his immunity. Cranman, 792 So. 2d at 405.22
As this Court has previously noted, “[f]or purposes of the immunity issue,
‘willful,’ ‘malicious’ and ‘bad faith’ all require evidence that the defendant acted
with the intent to injure or with ill will towards the plaintiff.” Lawrence v. City of
Fairhope, 2010 WL 1658786 at *13 (S.D. Ala. 2010). Commins concurs. (Doc.
21

Commins repeats his position that the Court must grant him summary judgment
because the plaintiff did not respond to his argument. (Doc. 41 at 4-5 & 5 n.4). As
discussed in note 20, supra, this is not a valid ground for granting summary judgment.
22

Cranman identifies other means of defeating immunity, but the plaintiff does
not invoke them. (Doc. 36 at 18).

28

29 at 26). As discussed in Part I.B.3, the evidence would allow a properly
functioning jury to find that Commins harbored ill will and/or an intent to injure
Jermaine, untainted by any desire to prevent his escape or achieve any legitimate
objective. Commins’ denial of any such mental state, (id.), is inadequate to
eliminate this fact issue. The evidence that Commins acted willfully and/or
maliciously precludes summary judgment with respect to all claims not based on
negligence or wantonness.23
“A State agent acts beyond authority and is therefore not immune when he
or she fails to discharge duties pursuant to detailed rules or regulations, such as
those stated on a checklist.” Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala.
2003) (internal quotes omitted). The plaintiff argues that Commins’ apparent
violations of the Department’s vehicle pursuit policy satisfy this definition and
thus strip him of immunity. (Doc. 36 at 18-22).
The Court assumes without deciding that the policy is mandatory and
sufficiently detailed to satisfy Giambrone, such that Commins’ apparent violations
mean he acted beyond his authority in engaging in the pursuit of Baldwin’s
vehicle. The problem, as Commins points out, (Doc. 41 at 10-11), is that the
plaintiff is not suing him for his conduct in participating in a vehicle pursuit but
for his subsequent act of running over Jermaine.24 The plaintiff himself concedes
that Commins’ violations of the vehicle pursuit policy are relevant to his state
claims only in that they “put [Commins] in the position where he ended up striking
23

“This Court has previously held that poor judgment or wanton misconduct, an
aggravated form of negligence, does not rise to the level of willfulness and maliciousness
necessary to put the State agent beyond the immunity recognized in Cranman.” Ex parte
Randall, 971 So. 2d 652, 664 (Ala. 2007).
24

“At that time, Jermaine Gaillard exited the passenger door and ran across the
road on foot whereupon officer Samuel Peter Commins … negligently or wantonly ran
over Jermaine Gaillard and did cause the wrongful death of Plaintiff’s decedent, Mr.
Gaillard.” (Doc. 2, Exhibit 80 at 901). Commins “did negligently operate his patrol car
… so as to strike and run over Jermaine Gaillard.” (Id. at 901-02).

29

Gaillard with his vehicle and killing him.” (Doc. 36 at 22). As discussed in Part
I.A.3, that may be a sufficiently close connection to impact Commins’
discretionary authority, but it does not strip Commins of immunity for his alleged
negligence and/or wantonness in striking Jermaine.
For the reasons set forth above, Commins is entitled to summary judgment
with respect to Count One (which sounds only in negligence), Count Two to the
extent it sounds in negligence or wantonness, and the state constitutional claims in
Count Three, to the extent they sound in negligence or wantonness.
B. The City.
Count Three alleges that the defendants’ conduct violated Jermaine’s rights
under Article I, Sections 4, 6 and 13 of the Alabama Constitution. (Doc. 2,
Exhibit 80 at 903-04). The plaintiff asserts these claims “[p]ursuant to 42 U.S.C. §
1983.” (Id. at 903).25 As noted, the plaintiff “concedes … that the claims brought
against [the City] pursuant to §1983 are due to be dismissed.” (Doc. 36 at 22).
Since the plaintiff purports to bring his state constitutional claims pursuant to
Section 1983, his concession extends to those claims. Accordingly, the City is
entitled to summary judgment as to the state constitutional claims embedded in
Count Three.
“It is well established that, if a municipal peace officer is immune pursuant
to § 6-5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is
also immune.” Ex parte City of Montgomery, 99 So. 3d 282, 298 (Ala. 2012)
(internal quotes omitted). The plaintiff accepts this principle. (Doc. 36 at 22).
The City is thus entitled to summary judgment on Count One, and on Count Two
to the extent based on Commins’ alleged negligence or wantonness.
25

The plaintiff’s invocation of Section 1983 appears misguided. “Section 1983
does not create a remedy for every wrong committed under the color of state law, but
only for those that deprive a plaintiff of a federal right.” Knight v. Jacobson, 300 F.3d
1272, 1276 (11th Cir. 2002). “While the violation of state law may (or may not) give rise
to a state tort claim, it is not enough by itself to support a claim under section 1983.” Id.
30

That leaves for consideration the plaintiff’s claim under Count Two for
wrongful death based on “willful[ness], malicious[ness] and/or inten[t].” (Doc. 2,
Exhibit 80 at 902). Pursuant to statute, the City cannot be held liable for a
person’s injury “unless said injury or wrong was done or suffered through the
neglect, carelessness or unskillfulness of some agent, officer or employee of the
municipality engaged in work therefor and while acting in the line of his duty ….”
Ala. Code § 11-47-190. As the plaintiff concedes, (Doc. 36 at 22), this statute
precludes municipal liability based on the willful, malicious or intentional
misconduct of its agents, officers and employees.26 The City has invoked its
protection, (Doc. 25 at 19-20), and it requires judgment in the City’s favor.
CONCLUSION
For the reasons set forth above, the City’s motion for summary judgment is
granted in its entirety. Commins’ motion for summary judgment is granted with
respect to Count One; granted with respect to Count Two to the extent based on
negligence or wantonness; granted with respect to the state constitutional claims
embedded in Count Three to the extent based on negligence or wantonness; and
granted with respect to the federal equal protection claim embedded in Count
Three. In all other respects, Commins’ motion for summary judgment is denied.
DONE and ORDERED this 25th day of March, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
26

E.g., Wheeler v. George, 39 So. 3d 1061, 1085 (Ala. 2009) (“[A] municipality
cannot be held liable for the intentional torts of its employees.”); Ex parte City of
Tuskegee, 932 So. 2d 895, 910 (Ala. 2005) (“Section 11-47-190 provides a municipality
immunity from liability for the acts of its agents that are carried out in bad faith or with
malice.”); Altmayer v. City of Daphne, 613 So. 2d 366, 369 (Ala. 1993) (Section 11-47190 “absolves a municipality from liability” for “claims alleging willful and reckless
misrepresentation”).
31