Moore v. City of Selma, Alabama et al

Filing 32

ORDER, GRANTING Defendants' 24 Motion for Summary Judgment. Signed by Judge Callie V. S. Granade on 7/6/2015. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JEANETTE T. MOORE,
individually and as personal
representative of the Estate of
J.M., a minor,

)
)
)
)
)
)
)
) CIVIL ACTION NO. 14-212-CG-C
)
)
)
)

Plaintiff,
vs.
CITY OF SELMA, ALABAMA, et
al.,
Defendants.

ORDER

This matter is before the Court on Defendants’ Motion for Summary
Judgment (Doc. 24) and supporting exhibits, Plaintiff’s (“Mrs. Moore’s”)
response in opposition (Doc. 29) and supporting exhibits, and Defendants’
Reply (Doc. 30) and supporting exhibits. The Court finds that both Officer
Jonathan McGuire and Chief William T. Riley, III are entitled to qualified
immunity. For the reasons set forth herein, Defendants’ Motion for Summary
Judgment (Doc. 24) is due to be GRANTED.
STATEMENT OF THE FACTS
On May 10, 2012, J. M., a seventeen-year-old boy, got into an
argument with his mother, Jeanette Moore, over household chores. J. M. took
his stepfather’s gun from a drawer and stormed out of the house. J. M.’s
mother and stepfather called the police and, during the ensuing standoff,
1

police officer Jonathan McGuire (“Officer McGuire”) fired a single shot,
striking J. M. in the chest. The wound proved fatal. Jeanette T. Moore, acting
as personal representatives of her son’s estate, filed suit, seeking relief under
both federal and state law. (Doc. 1). In her amended complaint, Mrs. Moore
alleged that lethal force was unnecessary and excessive, and therefore, that
Office McGuire deprived her son of his Fourth Amendment rights (“Count 1”).
(Doc. 22). Moore also alleged several state law claims against both Officer
McGuire and Chief Riley: (1) negligence against Officer McGuire (“Count 2”);
(2) wantonness against Officer McGuire (“Count 3”); (3) assault and battery
against Officer McGuire (“Count 4”); (4) negligence against Chief Riley
(“Count 5”); (5) wrongful death against Officer McGuire (“Count 6”) and the
tort of outrage against Officer McGuire (“Count 7”). (Doc. 22).
On May 10, 2012, Mrs. Moore and her son, J. M., argued over chores
that Mrs. Moore assigned J. M. (Doc. 22, ¶ 3; Exh. 4, p. 84; Doc. 25, Exh. 1).
Upset because he did not want to complete the chores, J. M. began mumbling
and complaining. (Doc. 22, ¶4). Mrs. Moore required J. M. to leave the house
until he calmed down. (Doc. 22, ¶4).
J. M. left the house and walked up the street. (Doc. 22, ¶5). A few
minutes later, J.M. returned to the house and Mrs. Moore reiterated that he
had to leave until he calmed down. (Doc. 22, ¶5). J. M. walked straight past
his mother, entered her bedroom and locked the door behind him. (Doc. 22,
¶5). Mrs. Moore asked J. M. to come out of her bedroom. While in the
2

bedroom, J. M. removed a handgun, belonging to his stepfather, Roderick
Moore (“Mr. Moore”), from a top drawer. (Doc. 25, Exh. 4, p. 95). After about a
minute, J. M. came out of the bedroom carrying in the handgun in his right
hand. (Doc. 22, ¶6; Doc. 25, Exh. 4, p. 96). J. M. proceeded to the carport door
(Doc. 22, ¶6). Mrs. Moore then told her daughter, Mon’Shaay Smith, and the
children, Mrs. Moore’s grandchildren, to leave because J.M. had a gun. (Doc.
25, Exh. 4, p. 96). J. M. left the home carrying the handgun and stopped in
the front yard next to the fence. (Doc. 22, ¶7). Mrs. Moore followed him and
requested that he give her the gun. (Doc. 22, ¶7). J. M. refused, stating “that
he felt as though he was being treated like a child and that nobody loved
him.” (Doc. 22, ¶7).
After unsuccessfully attempting to disarm J. M., Mrs. Moore asked Mr.
Moore to call the police and request the Selma Police Department’s
assistance in disarming J. M. (Doc. 22, ¶9). Mr. Moore called for police
assistance, advising the dispatcher that J.M. had taken his gun. (Doc. 25,
Exh. 5, p. 6; Doc. 25, Exh. 1). Mon’Shaay Smith, J.M.’s sister, also called 911
and requested police assistance. (Doc. 25, Exh. 1; Doc. 25, Exh. 7).
Meanwhile, J. M. repeatedly refused to relinquish the handgun and
continued crying and stating “y’all ain’t real with me” and other phrases that
Ms. Moore was unable to understand. (Doc. 22, ¶10).
In a matter of minutes of receiving the call, Officer Jonathan McGuire
arrived at the Moores’ home. (Doc. 22, ¶11; Doc. 25, Exh. 2, p. 62). Officer
3

McGuire got out of his patrol car and did not turn on his VIDMIC. (Doc. 25,
Exh. 2, p. 62). Officer McGuire walked up to the carport, where he met with
Mr. Moore. (Doc. 25, Exh. 2, p. 55). Mr. Moore informed Officer McGuire
about the events leading up to Officer McGuire’s arrival. (Doc. 25, Exh. 2, p.
54; Doc. 22, ¶12). Specifically, that J.M. had a firearm and had threatened to
kill everyone in the house. (Doc. 25, Exh. 2, p. 55). Mr. Moore told Officer
McGuire that J.M. had walked to the left side of the house. (Doc. 25, Exh. 2,
p. 55). Officer McGuire told Mr. Moore to “hang tight” and he would go check
it out. (Doc. 25, Exh. 2, p. 55). Officer McGuire jogged to the other side of the
house and during that jog, his VIDMIC fell off. (Doc. 25, Exh. 2, p. 56). Officer
McGuire did not see J.M. and returned to Mr. Moore on the left side of the
house. (Doc. 25, Exh. 4, pp. 57-58).
Mr. Moore, Mrs. Moore, and Officer McGuire then walked towards the
backyard where J.M. was last seen and discovered that J. M. had jumped
over the fence and was standing behind a storage unit in the adjacent
neighbor’s backyard. (Doc. 22, ¶12; Doc. 25, Exh. 2, p. 57). Still armed, J. M.
then jumped back over the fence into his backyard. (Doc. 22, ¶13; Doc. 25,
Exh. 5, p. 17). Officer McGuire asked J. M. to drop the weapon. (Doc. 22,
¶13; Doc. 25, Exh. 5, p. 17). J. M. did not drop the handgun and said that he
did not “do anything” and was “not going anywhere.” (Doc. 25, Exh. 5, p. 17).
Both Mr. and Mrs. Moore asked J. M. to put down the gun. (Doc. 25, Exh. 4,
p.41; Exh. 5, pp. 24, 25, 45). J. M. responded that he “was tired” and did not
4

“want to do this no more.” (Doc. 25, Exh. 4, pp. 43, 112).
At this point, Officer McGuire removed his gun from the holster. (Doc.
25, Exh. 2, pp. 59 – 60). Officer McGuire ordered J.M. to drop the weapon
three times. (Doc. 25 Exh. 1; Doc. 25, Exh. 4, p. 46). Suddenly, someone
screamed causing J. M. to abruptly turn. (Doc. 25, Exh. 4, p. 47). Officer
McGuire then fired a single shot, striking J. M. in the chest. (Doc. 25, Exh. 1;
Exh. 4, p. 46; Exh. 2, p. 60). Once J. M. fell to the ground, Officer McGuire
started running. (Doc. 25, Exh. 2, p. 60). Officer McGuire picked up his
VIDMIC and continued to run towards the residence, calling for both backup
and an ambulance. (Doc. 25, Exh. 1; Doc. 25, Exh. 2, p. 60).
Mrs. Moore began screaming “You shot him! You shot him!” and
rushed to J. M., who was lying on his back. (Doc. 22, ¶16). J. M. had fluid
draining from his mouth. (Doc. 22, ¶17). Officer McGuire’s shot had struck an
artery. (Doc. 25, Exh. 4, p. 146). Mrs. Moore, a nurse, leaned over J.M. and
began CPR. (Doc. 22, ¶ 17). Mrs. Moore yelled at Officer McGuire that he had
shot her only son and Officer McGuire began apologizing. (Doc. 22, ¶18).
Within minutes, Selma police officers arrived at the scene, and one of the
officers began assisting Mr. and Mrs. Moore in attempting to save J. M.’s life.
(Doc. 22, ¶19).
Approximately ten to fifteen minutes after the additional officers
arrived, an ambulance arrived and transported J. M. to the hospital. (Doc. 25,
Exh. 4, p. 146). J. M. was pronounced dead at the hospital as a direct result of
5

the gunshot wound inflicted by Officer McGuire. (Doc. 22, ¶21; Doc. 25, Exh.
1).
At the scene, officers recovered the 9-millimeter Smith & Wesson
handgun and a magazine with fifteen rounds of ammunition, which was in J.
M.’s possession at the time of the shooting. (Exh. 1).
SUMMARY JUDGMENT STANDARD
A party is entitled to summary judgment when the party can show
that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c).
Which facts are material depends on the substantive law applicable to the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the burden of showing that no genuine issue of material fact
exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
When a party moving for summary judgment points out an absence of
evidence on a dispositive issue for which the non-moving party bears the
burden of proof at trial, the nonmoving party must “go beyond the pleadings
and by [his] own affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324–25 (1986)
(internal quotations and citation omitted). Thereafter, summary judgment is
mandated against the nonmoving party who fails to make a showing
sufficient to establish a genuine issue of fact for trial. Id. at 322, 324–25. The
party opposing a motion for summary judgment must rely on more than
6

conclusory statements or allegations unsupported by facts. Evers v. Gen.
Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) (“conclusory allegations
without specific supporting facts have no probative value”).
The Court must consider all inferences drawn from the underlying
facts in a light most favorable to the party opposing the motion, and resolve
all reasonable doubts against the moving party. Anderson, 477 U.S. at 255.
The Court is not, however, required to accept all of the non-movant's factual
characterizations and legal arguments. Beal v. Paramount Pictures Corp., 20
F.3d 454, 458–59 (11th Cir. 1994).
LEGAL ANALYSIS
A. Federal Claim
Mrs. Moore argues that Officer McGuire used excessive force when he
shot J.M., depriving her son of a clearly established constitutional right. Mrs.
Moore contends she is entitled to relief under 42 U.S.C. § 1983 because
Officer McGuire used excessive force against her son, violating his Fourth
Amendment rights.
In civil rights actions brought under § 1983, the doctrine of qualified
immunity “offers complete protection for government officials sued in their
individual capacities if their conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’ ” Vineyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting
Harlow, 457 U.S. 800, 818 (1982)). The Eleventh Circuit applies a multi-step,
7

burden shifting qualified immunity analysis:
In order to receive qualified immunity, the public
official must first prove that he was acting within the scope
of his discretionary authority when the allegedly wrongful
acts occurred.... Once the defendant establishes that he was
acting within his discretionary authority, the burden shifts to
the plaintiff to show that qualified immunity is not
appropriate.
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citations and internal
quotation marks omitted). In evaluating whether a plaintiff has met her
burden, “[t]he threshold inquiry ... is whether [the] plaintiff's allegations, if
true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736,
122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002) (citing Saucier, 533 U.S. at 201,
121 S.Ct. at 2156).
Mrs. Moore claims Officer McGuire violated J.M.’s Fourth Amendment
right to be free from unreasonable seizure. See Lee, 284 F.3d at 1197. But,
“Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). However, the level of force applied must
not exceed that which a “ ‘reasonable officer would believe ... is necessary in
the situation at hand.’ ” Mercado v. City of Orlando, 407 F.3d 1152, 1157
(11th Cir. 2005) (quoting Lee, 284 F.3d at 1197).
The Fourth Amendment's “objective reasonableness” standard supplies
the test to determine whether the use of force was excessive. Crenshaw v.
8

Lister, 556 F.3d 1283, 1290 (11th Cir. 2009). Accordingly, courts must
“careful[ly] balanc[e] ... the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham, 490 U.S. at 396 (internal
quotation marks omitted). The Eleventh Circuit distilled from Supreme Court
jurisprudence several factors to aid our effort to “slosh ... through the
factbound morass of [this] ‘reasonableness' ” analysis. Scott, 550 U.S. at 383,
127 S.Ct. at 1778. The Eleventh Circuit highlights three factors set out by
Graham v. Connor:
The analysis requires careful attention to the facts and
circumstances of each particular case, including the severity
of the crime at issue, whether the suspect pose[d] an
immediate threat to the safety of the officers or others, and
whether [the suspect] ... actively resist[ed] arrest or
attempt[ed] to evade arrest by flight.
Crenshaw, 556 F.3d at 1290 (citation and internal quotation marks omitted).
A mechanical application of these factors, however, is not appropriate. See
Scott, 550 U.S. at 383. Instead, courts must be careful to evaluate the
reasonableness of an officer's conduct “on a case-by-case basis ‘from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’ ” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th
Cir.1993) (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1872), modified, 14
F.3d 583 (11th Cir.1994). Further, the Supreme Court cautioned that “[t]he
calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances
9

that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” Graham, 490 U.S. at 396–97, 109
S.Ct. at 1872.
Use of deadly force indisputably implicates weighty individual
interests. See Garner, 471 U.S. at 9. For over twenty years, Tennessee v.
Garner has guided courts Fourth Amendment reasonableness analysis where
officers used lethal force. However, the Supreme Court has explicitly
cautioned against an interpretation of Garner as “a magical on/off switch that
triggers rigid preconditions whenever an officer's actions constitute ‘deadly
force.’ ” Scott, 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. (citation omitted). Accordingly, as set
out in Garner, the use of deadly force is more likely reasonable if: the suspect
poses an immediate threat of serious physical harm to officers or others; the
suspect committed a crime involving the infliction or threatened infliction of
serious harm, such that his being at large represents an inherent risk to the
general public; and the officers either issued a warning or could not feasibly
have done so before using deadly force. See 471 U.S. at 11–12. Again, none of
these conditions are prerequisites to the lawful application of deadly force by
an officer seizing a suspect. Scott, 550 U.S. at 382.
To satisfy the objective reasonableness standard imposed by the
Fourth Amendment, Officer McGuire must establish that the countervailing
10

government interest was great. See Crenshaw, 556 F.3d at 1290. As noted
above, analysis of this balancing test is governed by (1) the severity of the
crime at issue; (2) whether J. M. posed an immediate threat to the officers or
others; and (3) whether he actively resisted arrest. See id. In this case, the
reasonableness analysis turns on the second of these factors: presence of an
imminent threat.
Both the first and third factors weigh in Officer McGuire’s favor.
Stealing a firearm, threatening the lives of others, and refusing to comply
with the officer’s commands to drop the weapon are undoubtedly serious
crimes. See Penley v. Eslinger, 605 F.3d 834, 850-51 (11th Cir. 2010). The
third factor favors a finding of reasonableness as well. Mrs. Moore does not
dispute that J. M. refused to comply with the Officer’s multiple commands to
drop the weapon and surrender. J. M.’s noncompliance supports the
conclusion that use of deadly force was reasonable. See Garczynski, 573 F.3d
at 1168–69 (concluding that refusal to comply with repeated commands to
show one's hands, to drop a cell phone, and then to drop the weapon pointed
at the suspect's own head together justified officers' “escalation into deadly
force”).
This case turns on the second factor, whether J. M. posed an
immediate threat to Officer McGuire and others. Though a closer call, the
second factor also supports Officer McGuire’s argument that he acted
reasonably under the circumstances. The government has a weighty interest
11

in protecting members of the public and police officers from the threat of
force. See id. at 1166. Thus, “[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,” use of deadly force does not violate the Constitution. Garner,
471 U.S. at 11 (noting that this is the case even where an officer uses deadly
force merely to prevent the suspect's escape); see also Carr v. Tatangelo, 338
F.3d 1259, 1268 (11th Cir. 2003). The Eleventh Circuit Court clarified that
the second factor can be reduced to a single question: “whether, given the
circumstances, [the suspect] would have appeared to reasonable police
officers to have been gravely dangerous.” Pace v. Capobianco, 283 F.3d 1275,
1281 (11th Cir. 2002).
J. M. demonstrated his dangerous proclivities by stealing his
stepfather’s gun, storming out of the house and refusing to comply with
Officer commands to drop the weapon. Mrs. Moore claims that J. M. never
pointed the weapon at Officer McGuire. Even if the Court construes this
assertion as true, it does not change the outcome of this case. “[U]nder the
law, the threat of danger to be assessed is not just the threat to officers at the
moment, but also to the officers and other persons if the chase went on.” Pace
v. Capobianco, 283 F.3d 1275, 1280 n. 12 (11th Cir. 2002). “[T]he question
then is whether, given the circumstances, [the suspect] would have appeared
to reasonable police officers to have been gravely dangerous.” Id. at 1281.
Considering the circumstances surrounding the shooting, including the
12

threat J. M. posed to his own family and other officers if the standoff
continued, this question must be answered “yes.” See Long v. Slaton, 508
F.3d 576, 581 (11th Cir. 2007) (finding reasonableness when an officer shot
and killed a mentally unstable man who attempted to steal a police cruiser).
Mrs. Moore disputes the immediacy of the harm that J. M. posed to
bystanders, herself included, and Officer McGuire. She argues that J. M. was
alone in a neighboring backyard, was 70 feet away and therefore, did not pose
an immediate threat to Officer McGuire and the other bystanders. This
argument is misplaced and a ruling along that line would set a dangerous
precedent for future police interactions. Police should not have to wait until
suspects fire or might fire a weapon before using deadly force. It is not the
duty of the Court to conduct a 20/20 hindsight analysis of the circumstances.
See Penley, 605 F.3d at 846. Rather, when examining whether an officer's use
of deadly force is reasonable, Courts recognize that “police officers are often
forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 397. So, “[w]e are loath to
second-guess the decisions made by police officers in the field.” Vaughan v.
Cox, 343 F.3d 1323, 1331 (11th Cir. 2003). Though factual inferences are
made in the Moores’ favor, this rule applies only “to the extent supportable by
the record.” Scott, 550 U.S. at 381 n. 8. In this case, Officer McGuire was
faced with a situation involving an armed young man, who repeatedly
13

disobeyed police commands to drop the gun. J. M. moved suddenly and
Officer McGuire shot him. Under these circumstances, this Court is not
inclined to second-guess this decision.
Even still, the relevant inquiry remains whether Office McGuire “had
probable cause to believe that [J.M.] posed a threat of serious physical harm.”
See Robinson, 415 F.3d at 1256. In other words, would J.M. “have appeared
to reasonable police officers to have been gravely dangerous”? See Pace, 283
F.3d at 1281. Recalling the incident, Officer McGuire stated in the
affirmative that he feared for his life and that the lives others were in
imminent danger during the standoff. (Doc. 25, Exh. 2, p. 73). Under the
tragic circumstances of this case and in light of this Circuit’s binding
precedent, the Court must answer this question in the affirmative. The Court
therefore holds that Officer McGuire did not violate J. M.’s constitutional
rights, thereby ending the qualified immunity analysis. See Saucier, 533 U.S.
at 201.
Even construing facts in a light most favorable to Mrs. Moore, the
Court finds that there is no genuine dispute of material fact and the Court
grants Officer McGuire’s motion for summary judgment on the § 1983 claim.
B. State Law Claims
Mrs. Moore also alleges the following state-law claims against Officer
McGuire and Chief Riley: (1) negligence against Officer McGuire (Count 2);
(2) wantonness against Officer McGuire (Count 3); (3) assault and battery
14

against Officer McGuire (Count 4); (4) negligence against Chief Riley (Count
5); (5) wrongful death against Officer McGuire (Count 6); and (6)
outrage/emotional distress against Officer McGuire. (Count 7).
1. Negligence, wantonness and wrongful death
Plaintiff claims that Officer McGuire negligently and wantonly deprived her
son of his Constitutional rights by shooting J.M. without legal justification. (Doc.
22, pp. 6 -8, ¶¶ 39, 45). Officer McGuire claims that he is entitled to qualified
immunity from the state law claims asserted against him.
Alabama law recognizes at least two types of immunity from suit or liability
for the individual executive acts of public officers. Sheth v. Webster, 145 F.3d 1231,
1236 (11th Cir. 1998). The first is absolute “state-agent” immunity, which is
afforded to certain state constitutional officers. Id. The second type of immunity,
described as “discretionary function” immunity, is not absolute and applies when a
state officer or employee commits a tort while engaged in the exercise of a
discretionary function. Taylor v. Shoemaker, 605 So.2d 828, 831 (Ala. 1992) (citing
Sellers v. Thompson, 452 So.2d 460 (Ala. 1984).
The relevant Alabama statute establishing discretionary function
immunity is Ala. Code 6-5-338(a) (1975), which reads:
Every peace officer…who is employed or appointed pursuant to
the Constitution or statutes of this state, whether appointed or
employed as such peace officer by the state or a county or
municipality thereof…shall at all times be deemed to be officers
of this state, and as such shall have immunity from tort liability
arising out of his or her conduct in performance of any
discretionary function within the line and scope of his or her law
enforcement duties.
15

Under the discretionary function immunity analysis, the threshold
requirement is determining whether Officer McGuire was performing a
discretionary function when the alleged wrong occurred. Wood v. Kesler, 323
F.3d 982, 883 (11th Cir. 2003). Discretionary acts are “those acts as to which
there is no hard and fast rule as to the course of conduct that one must or
must not take and those acts requiring exercise in judgment and choice and
involving what is just and proper under the circumstances.” Id. at 2. See also
L.S.B. v. Howard, 659 So.2d 43, 44 (Ala. 1995). If the court finds that
McGuire was performing a discretionary function, then the burden shifts to
Mrs. Moore to demonstrate that McGuire acted in “bad faith, with malice or
willfulness.” See Wood v. Kesler, 323 F.3d 872, 883 (11th Cir. 2003); See also
Sheth, 145 F.3d at 1238-1239. “Acts of such a nature are not considered to be
discretionary.” Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996).
Here, Officer McGuire arrived at the house, within the scope of his
duties, to diffuse an intense family situation. When J. M. refused to disarm, a
standoff ensued, resulting in Officer McGuire shooting J.M. The Court finds
that McGuire’s shooting of J.M. was a discretionary act within the scope of
his employment for immunity purposes. See Hollis v. City of Brighton, 950
So.2d 300, 309 (Ala. 2006) (explaining that state-agent immunity applies
when the agent is “exercising 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
16

circumstances entitling such officers to immunity pursuant to § 6–5–338(a),
Ala. Code 1975”); see also Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000).
But cf. Mann v. Darden, 630 F.Supp.2d 1305, 1318 (M.D. Ala. 2008) (“using
an unreasonable amount of force is not within the discretion of an officer”
(internal citation omitted)). Therefore, McGuire established his entitlement
to immunity based on the allegations of the Amended Complaint—i.e. that he
was exercising discretion and judgment.
Alabama Code § 6-5-338 extends immunity to a municipal police officer
unless his actions were conducted in bad faith. See Cranman, 792 So.2d at
405 (holding that a State agent is not entitled to immunity “when the State
agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law”). Thus, to recover
Mrs. Moore needs to demonstrate that Officer McGuire acted in bad faith,
with malice or willfulness in shooting J.M. See Wood, 323 F.3d at 883.
Mrs. Moore’s response to Defendant’s motion for summary judgment
states outright “Officer McGuire was acting in line and in the scope of his
duties as a law enforcement officer, as the Defendants state, for the City of
Selma.” (Doc. 29, p. 7). Mrs. Moore’s arguments then center around whether
or not J.M. pointed the weapon at Officer McGuire, which, as explained
above, does not change Officer McGuire’s immunity. As to the issue of bad
faith, Mrs. Moore claims Officer McGuire acted with ill will in shooting J.M.
Yet, Mrs. Moore’s response lacks legal authority for the proposition that
17

shooting an armed suspect immediately amounts to bad faith.1
The Court finds that Officer McGuire’s actions under the
circumstances fall in line both with Alabama law and the Selma Police
Department’s policies. Alabama law allows an officer to use deadly force
“when and to the extent that he reasonably believes it necessary in order…to
defend himself or a third person from what he reasonably believes to be in
the use or imminent use of deadly physical force.” Ala. Code § 13A-3-27
(1975). Furthermore, Officer McGuire’s actions also fall in line with the
Selma Police Department’s policy on the use of deadly force. That policy
states that officers “are authorized to fire their weapons in order to: (a)
protect the officer or others from what is reasonably believed to be an
immediate threat of death or serious bodily harm.” (Doc. 25, Exh. 3, ¶
3.11.19).
Officer McGuire is entitled to discretionary immunity and there is no
evidence of bad faith that would negate that immunity. Therefore, the Court
finds that Officer McGuire is entitled to summary judgment on the state-law
claims of negligence (Count 2), wantonness (Count 3), and wrongful death
(Count 6).
2. Assault and Battery Claims against Officer McGuire
As mentioned above, Alabama also recognizes state-agent immunity.
See Sheth v. Webster, 145 F.3d at 1236. Under Alabama's state-agent
Rather, the response repetitiously states that Officer McGuire shot J.M. and fails to offer
any legal arguments supported by statutory or case law.
1

18

immunity doctrine:
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 ...
(2) exercising his or her judgment in the
administration of a department or agency of government [or]
...
(4) exercising judgment in the enforcement of the
criminal laws of the State, including, but not limited to, lawenforcement officers' arresting or attempting to arrest
persons; ...
Notwithstanding anything to the contrary in the
foregoing statement of the rule, a State agent shall not be
immune from civil liability in his or her personal capacity
(1) when the Constitution or laws of the United States,
or the Constitution of this State, or laws, rules, or
regulations of this State enacted or promulgated for the
purpose of regulating the activities of a governmental agency
require otherwise; or
(2) when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law.
Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000); Ex parte Butts, 775 So.2d
173, 177–78 (Ala. 2000) (majority of court adopting Cranman restatement).
The Cranman restatement of state-agent immunity includes all
circumstances entitling officers to immunity under Ala. Code § 6–5–338(a).
See Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala.2006).
State-agent immunity does have important limitations, which the
Alabama Supreme Court recognized as:
“[However,] a State agent shall not be immune from
civil liability in his or her personal capacity
19

(1) when the Constitution or laws of the United States,
or the Constitution of this State, or laws, rules, or
regulations of this State enacted or promulgated for the
purpose of regulating the activities of a governmental agency
require otherwise; or
(2) when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law.”
Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000). The test for state-agent
immunity is analogous to federal qualified immunity. Brown v. City of
Huntsville, Ala., 608 F.3d 724, 741 (11th Cir. 2010). “If the State agent
makes such a showing [of state-agent immunity], the burden then shifts to
the plaintiff to show that the State agent acted willfully, maliciously,
fraudulently, in bad faith, or beyond his or her authority.” Ex parte Estate of
Reynolds, 946 So.2d 450, 452 (Ala. 2006). Under Alabama law, a state
employee is entitled to substantive immunity from intentional torts if his or
her actions fall within the exercise of a discretionary function. Parker v.
Downing, 547 So.2d 1180, 1184 (Ala. Civ. App. 1988) (extending substantive
immunity to intentional torts).
Officer McGuire is immune from suit when “exercising judgment in the
enforcement of the criminal laws of the State, including ... arresting or
attempting to arrest persons.” Ex parte Cranman, 792 So.2d at 405. As
discussed at length above, Officer McGuire acted within his capacity as a
Selma police officer and, acted objectively reasonably to apprehend J.M.
Recalling the stand-off, Officer McGuire stated that J.M. “was steadily
20

showing aggression” and refused to drop the weapon despite commands to do
so. (Doc. 25, Exh. 2, p. 60). Officer McGuire stated J.M repeatedly threatened
to “burn his ass” and that J.M. kept repeating that he did not “give a fuck
about the police.” (Id. at p. 73). As the Court described in Section A, Officer
McGuire’s use of deadly force was reasonable under the circumstances and he
was acting in his discretion in accordance with both the law and the policies
of the Selma Police Department. There is no showing of bad faith or
malicious intent in the shooting. Officer McGuire has state-agent immunity
for his action of shooting J.M. because he was “exercising judgment in the
enforcement of the criminal laws of the State,” and there is no evidence of bad
faith or malicious intent. Therefore, Mrs. Moore’s assault and battery claims
against Officer McGuire also fail.
3. Tort of Outrage
Count 7 of the Amended Complaint asserted a claim for the tort of
outrage/intentional infliction of emotional distress. (Doc. 22). The basic
standard for the tort of outrage is, “the conduct made the basis of the claim
must have been so outrageous in character and so extreme in degree as to be
regarded as atrocious and utterly intolerable in a civilized society.” Newton v.
Town of Columbia, 695 So.2d 1213, 1218 (Ala. Civ. App. 1997) (internal
quotes omitted). Conduct meeting this stringent standard is “rare.” Jenkins
v. United States Fid. & Guaranty Co., 698 So.2d 765, 768 (Ala. 1997). Officer
McGuire argues this is not one of those rare cases. (Doc. 25 at 22-23).
21

In order to recover, a plaintiff must demonstrate that the defendant's
conduct “ ‘(1) was intentional or reckless; (2) was extreme and outrageous;
and (3) caused emotional distress so severe that no reasonable person could
be expected to endure it.’ ” Green Tree Acceptance, Inc. v. Standridge, 565
So.2d 38, 44 (Ala. 1990) (citing Am. Road Serv. Co. v. Inmon, 394 So.2d 361
(Ala. 1980)); see also Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000).
The Alabama Supreme Court has held that the tort of outrage is so
limited, that it recognized it in regard to only three kinds of conduct: “(1)
wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So.2d 901
(Ala. 1987); (2) barbaric methods employed to coerce an insurance settlement,
Nat’l Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133 (Ala. 1983); and (3)
egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So.2d 322
(Ala. 1989).” Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011)
However, the tort of outrage is not limited to those scenarios. Recently,
the Alabama Supreme Court affirmed a judgment on a tort-of-outrage claim
asserted against a family physician who, when asked by a teenage boy's
mother to counsel the boy concerning his stress over his parents' divorce,
instead began exchanging addictive prescription drugs for homosexual sex for
a number of years, resulting in the boy's drug addiction. See O'Rear v. B.H.,
69 So.3d 106 (Ala. 2011). It is clear, however, that the tort of outrage is viable
only when the conduct is “‘so outrageous in character and so extreme in
degree as to go beyond all possible bounds of decency, and to be regarded as
22

atrocious and utterly intolerable in a civilized society.’” Horne v. TGM
Assocs., L.P., 56 So.3d 615, 631 (Ala. 2010) (quoting Inmon, 394 So.2d at 365).
This case arises from the tragic loss of a young life, but even construing the
facts in a light most favorable to the plaintiff, the Court finds that she cannot
recover under the tort of outrage.
Even in cases of excessive force, that alone does not trigger the
“extreme and outrageous” requirement. See McCray v. City of Dothan, 169
F.Supp.2d 1260, 1300 (M.D. Ala. 2001) (officers' actions of attacking plaintiff
in presence of his children, choking him, falsely arresting him, and leaving
his distraught children with strangers was unseemly, but not so extreme in
degree as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized society); Newton v. Town of
Columbia, 695 So.2d 1213, 1218 (Ala. Civ. App. 1997) (assault by officer does
not “necessarily constitute[ ] extreme and outrageous conduct sufficient to
support an action for intentional infliction of emotional distress.”) Defendants
made an adequate showing that the essential elements of the tort are absent
from Mrs. Moore’s allegations. Mrs. Moore had an affirmative duty to respond
to demonstrate the existence of genuine issues of material fact. Instead, Mrs.
Moore’s brief repeated the elements of immunity and stated, “Officer
McGuire was acting under the color of law and within his discretionary
functions at the time of the incident involving [J.M.].” (Doc. 29, p. 13). Mrs.
Moore’s argument fails to coherently articulate how the Officer’s actions rise
23

to the level of tort of outrage. Particularly, it is unclear to this Court how an
officer’s actions can be entirely “within the color of the law” (Doc. 29, p. 13),
yet also simultaneously rise to conduct “so outrageous in character and so
extreme in degree as to go beyond all possible bounds of decency.” Horne, 56
So.3d at 631. Therefore, on the authority and argument presented, the Court
concludes that Officer McGuire’s conduct is insufficient as a matter of law to
support a claim for the tort of outrage.
Accordingly, McGuire’s motion for summary judgment is granted as to
the state law claims against Officer McGuire.
4. Claims Against Chief Riley
Moore also brought suit against Chief William Riley in his official
capacity as Chief of Police for the City of Selma. In her amended complaint,
Mrs. Moore asserts Chief Riley negligently trained and supervised Officer
McGuire and should be held responsible for her son’s death. (Doc. 22, p. 9).
For years, federal courts in Alabama routinely held that there was no
cause of action against a municipality for its supervisors’ negligent hiring,
supervision, and training of subordinate employees under Alabama law. See
Borton v. City of Dothan, 734 F.Supp.2d 1237, 1258–59 (M.D. Ala. 2010)
(finding that Alabama does not recognize a cause of action against a
supervisor or municipality for negligent supervision/training/hiring); see also
Grider v. City of Auburn, 628 F.Supp.2d 1322, 1351–52 (M.D. Ala. 2009);
Hamilton v. City of Jackson, 508 F.Supp.2d 1045, 1058 (S.D. Ala. 2007); Doe
24

v. City of Demopolis, 799 F.Supp.2d 1300, 1310–11 (S.D. Ala. 2001). A recent
Alabama Supreme Court decision, Ex Parte Montgomery, 99 So.3d 282 (Ala.
2012), casts doubt on this proposition. See Hughes v. City of Montgomery,
2013 WL 5945078 at *3, (M.D. Ala. Nov. 6, 2013). However, the holding of Ex
Parte Montgomery is not clear and is not persuasive for the Court to depart
from long held, existing precedent.
Mrs. Moore’s brief lacks legal authority to support the proposition that
supervisors may be held liable for negligent training, hiring, or supervision.
Rather, Mrs. Moore’s brief repeats the summary judgment standard and
ironically, cites case law stating, “conclusory allegations without specific
supporting facts have no probative value.” Evers v. Gen. Motors Corp., 770
F.2d 984, 986 (11th Cir. 1985); see also, Gordon v. Terry, 684 F.2d 736, 744
(11th Cir. 1982), cert. denied, 459 U.S. 1203 (1983). Mrs. Moore’s brief
restates that Officer McGuire shot J. M. in the backyard. However, at no
point, does the brief draw a coherent connection between Chief Riley’s actions
and the shooting. Mere conclusory statements have no probative value.
Therefore, Chief Riley is entitled to summary judgment on the claim of
failure to train and supervise.
CONCLUSION
The loss of such a young life is an undeniable tragedy. However, with
her suit, Mrs. Moore asks the Court to conduct precisely the type of 20/20
hindsight inquiry which the Supreme Court and the Eleventh Circuit have
25

repeatedly cautioned against. Therefore, based on the foregoing, it is
ORDERED that Defendants’ Motion for Summary Judgment (Doc. 25) is
hereby GRANTED.
DONE and ORDERED this 6th day of July, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

26