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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION VELMA JEAN HUMPHREY, individually and as personal representative of the Estate of O’Patrick Humphrey, et al., Plaintiffs, v. THE CITY OF HEADLAND, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1:12-cv-366-WHA-WC

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendants the City of Headland, the City of Headland Police

Department, Chief Mark Jones, Officer Tony Smith and Officer Tony Franks submit this memorandum in support of their Motion to Dismiss for Failure to State a Claim. I. INTRODUCTION According to the complaint, this lawsuit arose from the fatal shooting of O’Patrick Humphrey by officers of the Headland Police Department on January 31, 2012. (Doc. 1 at 2, ¶¶ 1, 3.) This memorandum demonstrates that the complaint should be dismissed for failure to state a claim upon which relief can be granted. With one exception, the factual allegations that follow are just that – allegations. They are lifted directly from the complaint. The defendants

dispute some of the complaint’s allegations, but for purposes of their motion to 1

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dismiss, the defendants will address the allegations as if they were true. The defendants examine the factual allegations in this light only because that is required at the motion-to-dismiss stage. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (“for the purposes of this motion to dismiss we must take all the factual allegations in the complaint as true”). The defendants have also attached the recorded statement of plaintiff Velma Jean Humphrey. (Duhaime decl. Ex. A.) Velma Jean made this

statement to Sergeant Eric Duhaime at 5:13 a.m. on the morning of the shooting. (Duhaime decl. at 1, ¶ 3.) “In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see also Maxcess, Inc. v. Lucent Tech., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“a document outside the four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of authenticity”); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (“the court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff’s claim and (2) undisputed. In this context, ‘undisputed’ means that the authenticity of the document is not challenged.”). II. FACTUAL ALLEGATIONS The plaintiffs are Velma Jean Humphrey and Robert Lowe. (Doc. 1 at 3, ¶¶ 8-9.) According to the complaint, Velma Jean and Robert are the parents of 2

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O’Patrick Humphrey and are co-personal representatives of O’Patrick’s estate. (Doc. 1 at 3, ¶¶ 8-9.) The style of the complaint states that Velma Jean and Robert bring this lawsuit both in their individual capacities and as personal representatives of O’Patrick’s estate. (Doc. 1 at 1.) O’Patrick was thirty-three years old at the time of his death. (Doc. 1 at 4, ¶ 10.) The defendants are the City of Headland, the City of Headland Police Department, Mark Jones, Tony Smith and Tony Franks. (Doc. 1 at 4-5, ¶¶ 1216.) During the events in question, Jones was Headland’s police chief, (Doc. 1 at 4, ¶ 12), and Smith and Franks were Headland police officers. (Doc. 1 at 4, ¶¶ 12-14.) On January 31, 2012, Velma Jean placed a 911 call for paramedics to respond to O’Patrick’s home. (Doc. 1 at 5, ¶ 17.) Velma Jean told the 911 operator that O’Patrick suffered from schizophrenia, was off his medication, and needed treatment. (Doc. 1 at 5, ¶ 17.) When the paramedics arrived and tried to treat O’Patrick, he became combative. (Doc. 1 at 5, ¶ 18.) According to Velma Jean, “They were asking him if he was alright, and then he got up, and he come out, and he attacked them.” (Ex. A at 00:50 to 00:56.) Velma Jean repeated, “When they went in and tried to talk to him, he come out and attacked them.” (Ex. A at 01:10 to 01:14.) According to Velma Jean, O’Patrick was hitting the medics. (Ex. A at

01:49 to 01:53.) Due to O’Patrick’s violent attack, the medics were forced to evacuate the scene. (Ex. A at 01:57 to 02:04.) The medics called for the police 3

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to respond because they needed help. (Ex. A at 02:10 to 02:16.) Officer Franks arrived first. (Doc. 1 at 5, ¶ 18.) O’Patrick ran up to Officer Franks’ patrol car and starting hitting it. (Ex. A. at 02:15 to 02:26.) O’Patrick then opened the car door and started attacking Officer Franks while he was still inside the patrol car. (Ex. A at 02:26 to

02:34.) Officer Franks fired a shot at O’Patrick, which grazed him. (Doc. 1 at 5, ¶ 18; Ex. A. at 02:34 to 02:43.) O’Patrick ran off. (Ex. A at 02:43 to 02:45.) After Officer Franks fired the shot, Officer Smith arrived. (Doc. 1 at 5, ¶ 18.) Officer Smith asked Officer Franks if O’Patrick was armed and did not receive a reply. (Doc. 1 at 5, ¶ 18.) In other words, when Officer Smith arrived, a shot had already been fired and Officer Franks was unresponsive. (Doc. 1 at 5, ¶ 18.) According to Velma Jean, O’Patrick soon returned and was even more aggressive. (Ex. A at 02:45 to 02:50.) O’Patrick rounded the corner of a

residence and approached Officer Smith. (Doc. 1 at 5, ¶ 19.) O’Patrick was waving his arms up and down and advancing on Officer Smith. (Doc. 1 at 5, ¶ 19.) According to Velma Jean, Officer Smith commanded O’Patrick, “Get on the ground! Get on the ground!” (Ex. A. at 02:52 to 03:01.) O’Patrick ignored Officer Smith’s verbal commands and “came right up to him.” (Ex. A. at 02:54 to 03:01.) Although the complaint alleges O’Patrick was unarmed, Officer

Smith could not have known that.1 (Doc. 1 at 5, ¶ 19). To the contrary, Officer

1

The defendants do not agree that O’Patrick was unarmed.

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Smith knew that a shot had been fired and that Officer Franks was unresponsive. (Doc. 1 at 5, ¶ 18.) When O’Patrick continued to approach, Officer Smith fired one shot, which struck O’Patrick in the groin. (Doc. 1 at 5, ¶ 20.) According to Velma Jean, Officer Smith and Officer Franks “had no other choice.” (Ex. A at 03:01 to 03:10.) Velma Jean reiterated, “He’s my son, but they had no other choice.” (Ex. A at 03:10 to 03:14.) O’Patrick died from the gunshot wound that Officer Smith inflicted. (Doc. 1 at 7, ¶ 30.) The plaintiffs filed this lawsuit on April 23, 2012. (Doc. 1 at 1.) The complaint contains three counts:  Count I asserts a section 1983 claim against Officers Smith and Franks for excessive force under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. (Doc. 1 at 6-7, ¶¶ 21-31.) Count II asserts a section 1983 claim against Chief Jones, the City of Headland, and the City of Headland Police Department for excessive force and cruel and unusual punishment under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. (Doc. 1 at 7-9, ¶¶ 32-41.) Count III asserts a state law claim against Chief Jones, the City of Headland, and the City of Headland Police Department under Alabama’s wrongful death statute. (Doc. 1 at 9-10, ¶¶ 42-45.)

The complaint does not state a claim upon which relief can be granted. Officers Smith and Franks invoke the qualified immunity defense against the section 1983 claim in Count I. Chief Jones invokes the qualified immunity

defense against the section 1983 claim in Count II. Chief Jones invokes stateagent immunity against the state law claim in Count III. See Ala. Code § 6-5338 (1975). The City of Headland and the City of Headland Police Department 5

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invoke state-agent immunity and statutory municipal immunity against the state law claim in Count III. See Ala. Code §§ 6-5-338, 11-47-190 (1975). III. ANALYSIS A. The Motion-to-Dismiss Standard “A pleading that states a claim for relief must contain … a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me allegation.” 1937, 1949 (2009). Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to raise by motion the defense of “failure to state a claim upon which relief can be granted.” “A district court considering a motion to dismiss shall begin by Ashcroft v. Iqbal, 129 S. Ct.

identifying conclusory allegations that are not entitled to an assumption of truth – legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic 6

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Plausibility is the key.” 1327, 1333 (11th Cir. 2010). Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d “Determining whether a complaint states a

plausible claim for relief” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). When the allegations of a complaint stop short of excluding “more likely explanations” or an “obvious alternative explanation,” the complaint does not state a plausible claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951-52 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 567 (2007). A pleading also does not satisfy the requirements of Rule 8 when it 7

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merely “le[aves] open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). B. Preliminary Issues As a preliminary matter, three aspects of the plaintiffs’ claims should be summarily dismissed with prejudice. First, the claims against the City of

Headland Police Department should be dismissed because the police department is not a separate legal entity from the city itself. Second, the

official capacity claims against the individual defendants should be dismissed because they are redundant to the claims against the city. Third, the section 1983 punitive damages claim against the city should be dismissed because punitive damages are not recoverable against a municipality under section 1983. 1. The Claims Against the City of Headland Police Department

The defendants move to dismiss the claims against the City of Headland Police Department because the police department is not a separate legal entity. See Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Hawkins v. City of Greenville, 101 F. Supp.2d 1356, 1363 (M.D. Ala. 2000) (Albritton, C.J.). 2. The Official Capacity Claims

The defendants move to dismiss the official capacity claims against Chief Jones, Officer Smith and Officer Franks because those claims are redundant to the claims against the city. “A claim asserted against an individual in his or her official capacity is, in reality, a suit against the entity that employs the 8

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individual.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1309 (11th Cir. 2009); see also Parker v. Williams, 862 F.2d 1471, 1476 n.4 (11th Cir. 1989) (“suits against an official in his or her official capacity are suits against the entity the individual represents”). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official

personally, for the real party in interest is the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal citation omitted); see also Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“Because suits against a municipal officer sued in his official capacity and direct suits against municipalities are functionally equivalent, there no longer exists a need to bring official-capacity actions against local government officials, because local government units can be sued directly (provided, of course, that the public entity receives notice and an opportunity to respond).”); Hooper v. City of Montgomery, 482 F. Supp.2d 1330, 1340 (M.D. Ala. 2007) (DeMent, J.); Key v. City of Cullman, 826 So. 2d 151, 156 (Ala. Civ. App. 2001) (as to state law claims). 3. The Section 1983 Punitive Damages Claims Against the City

The defendants move to dismiss the section 1983 punitive damages claims against the city because punitive damages are not recoverable against a municipality under section 1983. See City of Newport v. Fact Concerts, Inc.,

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453. U.S. 247, 271 (1981) (holding punitive damages not recoverable against municipality for section 1983 claims). C. Claim-by-Claim Analysis 1. Count I: The Section 1983 Excessive Force Claim Against Officers Smith and Franks

Count I asserts section 1983 claims against Officers Smith and Franks for excessive force under the Fourth, Fifth and Fourteenth Amendments. (Doc. 1 at 6, ¶¶ 23-24.) Officers Smith and Franks invoke the qualified immunity defense. a. Inapplicable Constitutional Amendments

It is beyond dispute that the Fifth Amendment does not apply in this context, because it only regulates conduct by the federal government. See

Knoetze v. United States, 634 F.2d 207, 211 (5th Cir. 1981) (“fifth amendment protection attaches only when the federal government seeks to deny a liberty or property interest”). The Fourteenth Amendment also does not apply, except to the extent the plaintiffs rely upon its incorporation clause. The Supreme Court in Graham made explicit what was implicit in Garner’s analysis, that is, “all 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, rather than under a ‘substantive due process’ approach.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248 n.2 (11th Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Accordingly, the Fourth Amendment alone governs the plaintiffs’ excessive force claim. The 10

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defendants move to dismiss the Fifth and Fourteenth Amendment claims for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). b. The Fourth Amendment Claim Against Officer Franks

In Count I, the plaintiffs assert excessive force claims against Officers Smith and Franks. (Doc. 1 at 6, ¶ 22.) Because the complaint alleges Officer Franks’ shot only “grazed” O’Patrick, (Doc. 1 at 5, ¶ 18), while Officer Smith’s shot allegedly caused his death, (Doc. 1 at 7, ¶ 30), these claims must be analyzed separately. The complaint alleges Officer Franks fired one shot, which “grazed” O’Patrick. (Doc. 1 at 5, ¶ 18.) The complaint alleges Officer Smith’s shot

caused the fatal wound. (Doc. 1 at 7, ¶ 30.) Accordingly, O’Patrick’s section 1983 personal injury claim against Officer Franks did not survive O’Patrick’s death. See Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1047 (11th Cir.), cert. denied 132 S. Ct. 817 (2011) (holding unfiled section 1983 personal injury claim abates upon death of injured party when injury did not proximately cause death). In Estate of Gilliam ex rel. Waldroup v. City of Prattville, the United States Court of Appeals for the Eleventh Circuit considered whether an unfiled section 1983 personal injury claim survived the death of the injured party when the personal injury did not proximately cause the death. 639 F.3d 1041 (11th Cir.), cert. denied 132 S. Ct. 817 (2011). In Gilliam, the plaintiff’s

decedent died from hypertensive cardiovascular disease seven hours after a 11

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violent drug arrest during which an officer applied a Taser to the decedent multiple times. Id. at 1043. The plaintiff filed suit against two officers Id. The plaintiff brought two section

approximately a year after the death.

1983 excessive force claims. Id. One claim specifically alleged that the death resulted from the officers’ use of force, while the other claim did not allege that the use of force caused the death. Id. The plaintiff was ultimately unable to prove that the use of force proximately caused the death. Gilliam, 639 F.3d at 1044. Accordingly, the district court entered summary judgment on the section 1983 wrongful death claim. Id. However, the district court denied summary judgment on the

section 1983 claim which did not allege that the use of force caused the death. Id. After a trial, the jury returned a verdict in favor of the plaintiff and against one of the officers. Id. The officer appealed the verdict to the Eleventh Circuit based on her contention that the excessive force claim did not survive the death. Id. The Eleventh Circuit held the unfiled section 1983 excessive force personal injury claim did not survive the death. Gilliam, 639 F.3d 1047. The Eleventh Circuit explained that, “By its terms, 42 U.S.C. § 1983 does not provide for the survival of civil rights actions.” Id. at 1045. Therefore, 42

U.S.C. § 1988(a) governs the survival of civil rights claims: The jurisdiction in civil and criminal matters conferred on the district courts ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or 12

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are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....” 42 U.S.C. § 1988(a) (Westlaw 2012). Section 1988(a) instructs the courts to look to the laws of the forum state, unless those laws are inconsistent with the Constitution and laws of the United States. Code of Alabama section 6-5-462 governs the survival of actions in Alabama: In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tort-feasor. Ala. Code § 6-5-462 (1975). Section 6-5-462 provides that “a deceased’s unfiled tort claims do not survive the death of the putative plaintiff.” Gilliam, 639 F.3d at 1046 (quoting Bassie v. Obstetrics & Gynecology Assocs. of Northwest Ala., P.C., 828 So. 2d 280, 282 (Ala. 2002) (internal quotation marks omitted)). In Gilliam, the

Eleventh Circuit held this rule is not inconsistent with the Constitution and laws of the United States. See Gilliam, 639 F.3d at 1047. Accordingly, the decedent’s unfiled section 1983 personal injury claim did not survive his death.

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The plaintiffs may argue that their complaint alleges Officer Franks’ shot “caus[ed] unnecessarily escalated police activity at the scene” and thereby contributed to Officer Smith’s decision to fire the fatal shot. (Doc. 1 at 5, ¶ 18.) The Eleventh Circuit rejected this theory in Gilliam: “The dissent proposes that § 1983 claims should survive in Alabama when based on allegations that the unconstitutional conduct ‘immediately contributes to’ but does not cause a person’s death.” Gilliam, 639 F.3d at 1048 n.12. [W]ith no inconsistency between Alabama law and federal law, we cannot, as the dissent proposes, craft a highly specific federal common law rule of survivorship that applies to the unique facts of this case. Under that analysis, almost every § 1983 claim would survive, even though § 1988(a) clearly instructs us to refer to an Alabama statute that does not provide for the survivorship of unfiled tort claims. Because the Alabama survivorship statute is not inconsistent with federal law, we must apply the statute as written to the facts of this case. Id. at 1048-49. The section 1983 personal injury claim against Officer Franks was not filed before O’Patrick’s death. Therefore, it did not survive his death. Officer Franks moves to dismiss the section 1983 excessive force claim against him for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). In the alternative, Officer Franks moves to dismiss the Fourth Amendment excessive force claim based upon the qualified immunity defense. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement 14

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of discovery.”). Officer Franks adopts the arguments concerning the absence of clearly established law as stated in the following analysis of the Fourth Amendment claim against Officer Smith. c. The Fourth Amendment Claim Against Officer Smith

Officer Smith moves to dismiss the Fourth Amendment excessive force claim based upon the qualified immunity defense. “Government officials sued for acts committed in the course of their official duties may invoke the defense of qualified immunity.” Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004). O’Rourke v.

“Qualified immunity is an McClish v.

immunity from suit rather than a mere defense from liability.”

Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007). “The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Qualified immunity “is a powerful constraint on causes of action under section 1983.” Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989). “In

order to spare officials who are entitled to immunity from the burden of litigation, the availability of qualified immunity should be evaluated early in the proceedings.” McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).

Indeed, “the defense of qualified immunity should be resolved at the earliest possible procedural moment.” (11th Cir. 2009). Amnesty Int’l v. Battle, 559 F.3d 1170, 1179

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“[I]f the defendant does plead the immunity defense, the district court should resolve that threshold question before permitting discovery.” CrawfordEl v. Britton, 523 U.S. 574, 598-600 (1998). “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). “Until this threshold immunity question is resolved, discovery should not be allowed.” Fitzgerald, 457 U.S. 800, 818 (1982). “It is … appropriate for a district court to grant the defense of qualified immunity at the motion to dismiss stage if the complaint ‘fails to allege the violation of a clearly established constitutional right.’” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001)). ”In reviewing a motion to dismiss based on qualified immunity, the district court is required to accept the factual allegations in the plaintiff’s complaint as true and draw all reasonable inferences in favor of the plaintiff.” Wilson v. Strong, 156 F.3d 1131, 1133 (11th Cir. 1998). However, “legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “The qualified immunity inquiry involves three steps: (1) the alleged conduct must fall within the scope of the discretionary authority of the actor; (2) if it does, we must then determine whether that conduct violates a constitutional right; (3) if so, we must inquire whether the asserted right was Harlow v.

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clearly established at the time of the alleged violation.” Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005). “To determine whether an official was engaged in a discretionary function, we consider whether the acts the official undertook ‘are of a type that fell within the employee’s job responsibilities.’” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004)). “In many areas other than qualified immunity, a ‘discretionary function’ is defined as an activity requiring the exercise of independent judgment, and is the opposite of a ‘ministerial task.’ In the qualified immunity context, however, we appear to have this ‘discretionary function / ministerial task’ dichotomy.”

abandoned

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “For purposes of qualified immunity, a governmental actor engaged in purely ministerial activities can nevertheless be performing a discretionary function.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “Instead of focusing on whether the acts in question involved the exercise of actual discretion, we assess whether they are of a type that fell within the employee’s job responsibilities. Our inquiry is two-fold. We 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).

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“In applying each prong of this test, we look to the general nature of the defendant’s action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate

circumstances.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). “In assessing whether a police officer may assert qualified immunity against a Fourth Amendment claim, we do not ask whether he has the right to engage in unconstitutional searches and seizures, but whether engaging in searches and seizures is a part of his job-related powers and responsibilities.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). “In considering whether an act of allegedly excessive force fell within a police officer’s duties, for example, we do not ask whether police have the right to use excessive force. We also do not immediately jump to a high level of generality and ask whether police are responsible for enforcing the law or promoting the public interest. We instead ask whether they have the power to attempt to Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,

effectuate arrests.”

1266 (11th Cir. 2004). Officer Smith was a police officer for the Headland Police Department (Doc. 1 at 4, ¶ 13.) He responded to a call for assistance regarding a combative schizophrenic man who was off his medication. (Doc. 1 at 5, ¶¶ 17-18.)

Accordingly, Officer Smith was performing a discretionary function during the events in question. 18

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“Once discretionary authority is established, the burden then shifts to the plaintiff to show that qualified immunity should not apply.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). “[T]he burden is on the plaintiff to show that, when the defendant acted, the law established the contours of a right so clearly that a reasonable official would have understood his acts were unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). “In order to prevail on a 42 U.S.C. § 1983 claim against a government official acting within his/her discretionary authority, Plaintiffs must show (1) the defendant’s conduct violated a constitutional or statutory right and (2) that the right violated was clearly established.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1305 (11th Cir. 2009). “Both elements of this test must be present for an official to lose qualified immunity, and this two-pronged analysis may be done in whatever order is deemed most appropriate for the case.” Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). It is clear that Officer Smith’s actions did not violate the Fourth Amendment. In Graham v. Connor, the Supreme Court provided three factors for courts to consider when they evaluate the constitutionality of force under the Fourth Amendment: Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ however, its proper application 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. 19

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Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). All three factors support Officer Smith’s decision. The first Graham factor is the severity of the crime. See Graham, 490 U.S. at 396. In this case, O’Patrick had already assaulted one police officer and two paramedics. (Ex. A at 01:49 to 01:53, 02:26 to 02:34.) Code of

Alabama section 13A-6-21(a)(4) makes it a felony to assault police officers and emergency medical personnel during the performance of their duties. Thus, the first Graham factor is satisfied by O’Patrick’s commission of three violent felonies before Officer Smith fired. The second Graham factor is whether the suspect poses an immediate threat to the safety of the officers or others. See Graham, 490 U.S. at 396. In this case, O’Patrick had already assaulted three public safety officials, (Ex. A at 01:49 to 01:53, 02:26 to 02:34.), and was advancing on Officer Smith. (Doc. 1 at 5, ¶ 19.) O’Patrick ignored Officer Smith’s commands to, “Get on the

ground! Get on the ground!” and “came right up on him.” (Ex. A at 02:52 to 03:01.) Officer Smith knew that one shot had already been fired and that

Officer Franks was left unresponsive. (Doc. 1 at 5, ¶ 18.) No rational person could believe anything other than that O’Patrick intended to launch another violent and felonious attack on Officer Smith. Accordingly, the second Graham factor is also satisfied. The third Graham factor is whether the suspect is actively resisting arrest or attempting to evade arrest by flight. See Graham, 490 U.S. at 396. Again, O’Patrick ignored verbal commands to get down on the ground and 20

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continued to advance on Officer Smith. (Ex. A at 02:52 to 03:01.) O’Patrick’s failure to submit to Officer Smith’s verbal commands satisfies the third Graham factor. The facts clearly establish that Officer Smith’s decision to

shoot O’Patrick Humphrey did not violate the Fourth Amendment. If a court has reservations about the lack of information in a complaint, those reservations must be resolved in favor of dismissal. See Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”). Likewise, when a court faces a close call on the question of qualified immunity, dismissal is required. See Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (“qualified immunity is appropriate in close cases where a reasonable officer could have believed that his actions were lawful.”). [T]he Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases. And in close cases, a jury does not automatically get to second-guess these life and death decisions, even though the plaintiff has an expert and a plausible claim that the situation could have been handled differently. Roy v. Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). The qualified immunity standard is high: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal punctuation omitted and 21

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emphasis added); see also Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002) (“Qualified immunity protects government officials, in their individual capacities, from suit unless the law preexisting the defendant official’s supposedly wrongful act was already established to such a high degree that every objectively reasonable official standing in the defendant’s place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances.”) (emphasis added). “If reasonable public officials could differ on the lawfulness of the defendants’ actions, the defendants are entitled to immunity.” City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004). Kingsland v.

In the words of the

Supreme Court, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). “A right may be clearly established for qualified immunity purposes in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right, or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291-92 (11th Cir. 2009) (internal citations omitted). Courts are sometimes tempted to default to the “broad statement of principle” level of analysis when a complaint fails to include sufficient factual detail for an evaluation under the “indistinguishable facts” standard. 22 “The

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Supreme Court, however, has emphasized that the inquiry into whether the law is clearly established ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’” Robinson v. Arrugueta, 415 F.3d 1252, 1256-57 (11th Cir. 2005) (quoting Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004)). Officer Smith objects to any attempt to invoke the “broad

statement of principle” standard to strip him of qualified immunity. In Saucier v. Katz, the Supreme Court wrote, “there is no doubt that Graham v. Connor clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough.” 533 U.S. 194, 202 (2001) (emphasis added). The Supreme Court “ha[s] repeatedly told courts … not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). “The general proposition, for example, that an

unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). The Eleventh Circuit has also rejected the “broad statement of principle” approach for cases in which the reasonableness of an officer’s conduct depends upon the factual context in which it occurred: The line between lawful and unlawful conduct is often vague. Harlow’s “clearly established” standard demands that a bright line be crossed. The line is not found in abstractions – to act reasonably, to act with probable cause, and so on – but in studying how these abstractions have been applied in concrete circumstances. If case law, in factual terms, has not staked out a 23

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bright line, qualified immunity almost always protects the defendant. Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993) (referring to Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In Vinyard v. Wilson, the Eleventh Circuit explained the limited circumstances in which “broad statement of principle” standard applies: Second, if the conduct is not so egregious as to violate, for example, the Fourth Amendment on its face, we then turn to case law. When looking at case law, some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable in the future to different sets of detailed facts. See Marsh, 268 F.3d at 1031-32 n.9. For example, if some authoritative judicial decision decides a case by determining that “X Conduct” is unconstitutional without tying that determination to a particularized set of facts, the decision on “X Conduct” can be read as having clearly established a constitutional principle: put differently, the precise facts surrounding “X Conduct” are immaterial to the violation. These judicial decisions can control “with obvious clarity” a wide variety of later factual circumstances. These precedents are hard to distinguish from later cases because so few facts are material to the broad legal principle established in these precedents; thus, this is why factual differences are often immaterial to the later decisions. But for judge-made law, there is a presumption against wide principles of law. And if a broad principle in case law is to establish clearly the law applicable to a specific set of facts facing a governmental official, it must do so “with obvious clarity” to the point that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted. 311 F.3d 1340, 1351 (11th Cir. 2002) (emphasis added). In short, Vinyard

holds that “broad statement of principle” analysis is only appropriate for cases in which the challenged police conduct would be unlawful under any set of facts. In Grider v. City of Auburn, the Eleventh Circuit confirmed that, “broad statements of principle in case law are not tied to particularized facts and can 24

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clearly establish law applicable in the future to different sets of detailed facts.” 618 F.3d 1240, 1267 n.39 (11th Cir. 2010) (quoting Vinyard, 311 F.3d at 1351). In this case, the plaintiffs have not alleged the sort of police conduct that would be unreasonable under any circumstances. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002) (inmates chained to hitching posts). Instead of invoking a broad statement of principle, the plaintiffs must identify pre-existing case law with materially similar facts that would have placed every officer on notice that the particular use of force was unlawful. See Pace v. Capobianco, 283 F.3d 1275, 1283 (11th Cir. 2002) (“We look for cases in which Fourth Amendment violations have been ascertained; and we look for fair warning, by studying whether the cases involved facts materially similar to those in this case: cases not fairly distinguishable from the case at hand.”) (emphasis added). The complaint does not meet that burden. Officer Smith responded to a call involving a thirty-three year old schizophrenic man. (Doc. 1 at 4-5, ¶¶ 10, 17.) The man was reportedly off his medication. (Doc. 1 at 5, ¶ 17.) The man was combative. (Doc. 1 at 5, ¶ 18.) The man had attacked two paramedics and another police officer. (Ex. A at 01:49 to 01:53, 02:26 to 02:34.) The altercation with the other officer resulted in a shot being fired and left the officer unresponsive. (Doc. 1 at 5, ¶ 18.) The man suddenly rounded a corner and advanced toward Officer Smith. (Doc. 1 at 5, ¶ 19.) The man was waving his arms up and down. (Doc. 1 at 5, ¶ 19.) Officer Smith yelled, “Get on the ground! Get on the ground!” (Ex. A at 02:52 to 03:01.) Officer Smith had not searched the man, knew that a shot 25

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had been fired, and knew that Officer Franks was unresponsive. (Doc. 1 at 5, ¶¶ 18-19.) As the man continued to advance, Officer Smith shot him once in the groin. (Doc. 1 at 5, ¶ 20.) According to the plaintiff who was present,

Officer Smith “had no other choice.” (Ex. A at 03:01 to 03:10.) Because Velma Jean Humphrey’s post-shooting interview occurred at 5:13 a.m., the shooting must have occurred either in darkness or, at best, low light conditions. (Ex. A at 00:07 to 00:10.) The complaint alleges O’Patrick was unarmed, (Doc. 1 at 5, ¶ 19), but that alleged fact cannot be considered because Officer Smith could not have known that. See Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (“Also irrelevant is the fact that Crawford was actually unarmed.”); Sherrod v. Berry, 856 F.2d 802, 802 (7th Cir. 1988) (“evidence establishing that Sherrod was unarmed is immaterial to the question of the reasonableness of the officers’ actions under the totality of the circumstances”); see also Graham v. Connor, 490 U.S. 386, 396 (1989) (“The ‘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.”). “A reasonable but mistaken belief that probable cause exists for using deadly force is not actionable under § 1983.” Tatangelo, 338 F.3d 1259, 1269 (11th Cir. 2003). On January 31, 2012, it was not clearly established in the Eleventh Circuit that a lone police officer could not shoot a combative schizophrenic man who was advancing on the officer after having just been involved in an Carr v.

26

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altercation with another officer in which a gunshot had been fired and the other officer was left unresponsive. The plaintiffs have the burden to identify a pre-existing decision by the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit or the Alabama Supreme Court which holds that the use of deadly force under facts materially similar to these is unconstitutional. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007) (“The law clearly establishing the violation also must be ‘pre-existing’ – that is, in effect at the time of the alleged violation.”); Lee v. Ferraro, 284 F.3d 1188, 1197 n.5 (11th Cir. 2002) (“In this circuit, the law can be clearly established for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.”). “[T]he Supreme Court’s standard of reasonableness is comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present.” Roy v. Inhabitants of City of

Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). “Faced with these kinds of splitsecond judgments, police officers, it is clear, have a much more difficult job than we judges, who may take several weeks (if not months) to resolve these kinds of issues. That is why we do not ‘require that police officers take unnecessary risks in the performance of their duties.’” United States v.

Walker, 615 F.3d 728, 734 (6th Cir. 2010) (quoting Terry v. Ohio, 392 U.S. 1, 23 (1968)). “Because an officer’s perspective in the field differs from that of a 27

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judge sitting peacefully in chambers, we must resist the temptation to judge an officer’s actions ‘with the 20/20 vision of hindsight.’” Garczynski v. Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “In making an excessive force inquiry, we are not to view the matter as judges from the comfort and safety of our chambers, fearful of nothing more threatening than the occasional paper cut as we read a cold record accounting of what turned out to be the facts. We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make a split-second decision between action and inaction in circumstances where inaction would prove fatal.” Crosby v. Monroe County, 394 F.3d 1328, 1333-34 (11th Cir. 2004). “Government officials are not required to err on the side of caution.” Marsh v. Butler County, 268 F.3d 1014, 1030 n.8 (11th Cir. 2001) (en banc). “The Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm.” Elliott v. Leavitt, 99 F.3d 640, 641 (4th Cir. 1996). “Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer.” Carr v. Tatangelo, 338 F.3d 1259, 1270 (11th Cir. 2003) (citation omitted). “From the vantage of an officer whose life is jeopardized, a potential arrestee who is neither physically subdued nor compliantly yielding remains capable of generating surprise, aggression, and death.” 28 Menuel v. City of

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Atlanta, 25 F.3d 990, 995 (11th Cir. 1994). “We must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.” Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992). “The excessive force inquiry provides a buffer for officers who are often acting on incomplete information and making split-second decisions.” McCall v. Crosthwait, 590 F. Supp.2d 1337, 1345 (M.D. Ala. 2008) (Watkins, J.). “Our task is not to evaluate what the officers could or should have done in hindsight.” Garczynski v. Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009)

(addressing plaintiff’s criticisms of tactics leading up to fatal shooting). A court cannot evaluate each event in isolation. See Ryburn v. Huff, 132 S. Ct. 987, 991 (2012) (“The majority looked at each separate event in isolation and concluded that each, in itself, did not give cause for concern. But it is a matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint an alarming picture.”). Attributing O’Patrick’s violent aggression to mental illness does not obviate the need for deadly force. The Seventh Circuit recognized the potential lethality of a mentally deranged assailant in Pena v. Leombruni: Very little mentation is required for deadly action. A rattlesnake is deadly but could not form the mental state required for conviction of murder. Whatever Pena’s mental problems (apparently he was high on cocaine), they were not such as to prevent him from beating Leombruni’s brains out with a chunk of concrete. Leoumbruni was entitled to defend himself whether or not Pena, had he assaulted him, and been prosecuted for the offense, would have been acquitted on the ground of insanity. 29

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200 F.3d 1031, 1034 (7th Cir. 1999). The Eleventh Circuit’s opinion Kesinger ex rel. Kesinger v. Herrington, 381 F.3d 1243 (11th Cir. 2004), is instructive. In Kesinger, a police officer who was on his way to work on Interstate 95 in Jacksonville, Florida, encountered a deranged unarmed man who was attempting suicide by walking in traffic. Id. at 1246. The man “turned and started moving quickly toward [the officer],

appearing angry and ready to fight, with his arms raised, palms out, screaming obscenely… .” Id. The officer locked himself in his car and radioed for

assistance. Id. The deranged man began to attack the police car. Id. The officer thought he heard a gunshot, so he shot the deranged man. Id. The United States District Court for the Middle District of Florida denied qualified immunity, and the officer appealed. Kesinger, 381 F.3d at 1245. The Eleventh Circuit reversed. Id. at 1250. The Eleventh Circuit held the officer’s decision to shoot the man did not violate the Fourth Amendment. Id. 124950. The Eleventh Circuit added that even if the shooting had hypothetically violated the Fourth Amendment, the violation was not clearly established: Even if we were to assume hypothetically that Herrington actually did violate Kesinger’s Fourth Amendment rights, it could not be said however that Herington violated any clearly established law. Before qualified immunity is surrendered by an officer, he or she is entitled to fair and clear warning that the challenged conduct violates federally protected rights. We have found no preexisting case law involving materially similar facts that would give a reasonable police officer fair and clear warning that shooting a crazed man, intent upon causing harm to himself and others, including the officer who had retreated as far as possible, and has acted in self defense, violated the Constitution. Here Herrington acted in self defense. He did not 30

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violate the Constitution or any clearly established law. entitled to qualified immunity. Kesinger, 381 F.3d at 1250.

He is

It would be incongruous for this Court to analyze O’Patrick’s shooting under the “broad statement of principle” standard, when the Eleventh Circuit applied the “materially similar facts” standard to a similar fact pattern and determined that qualified immunity applied. Additionally, the case of Btesh v. City of Maitland, No. 6:10-cv-71-Orl19DAB, 2011 WL 3269647 (M.D. Fla. July 29, 2011) (Fawsett, J.) weighs in favor of qualified immunity. Btesh also involved the shooting of an unarmed combative schizophrenic man. Id. at *2. In Btesh, officers responded to the apartment of a combative

schizophrenic man in response to a 911 call from his caregiver. See Btesh, 2011 WL 3269647, at *3-4. When the officers arrived, they encountered the man’s caregiver, who told the officers the man was “crazy” and was inside the apartment. Id. at *6. Shortly after the officers entered the apartment, the man emerged from a bedroom. Id. at *7. The man “walked quickly” toward one of the officers. Id. at *7. The officer could see that the man was not holding a weapon and retreated out of the apartment. Id. at *7-8. The man closed and locked the apartment door, which isolated the other officer inside the apartment with him. Id. at *7. The man then turned toward the officer who remained inside the apartment and “aggressively and quickly walked” toward her “with his hands

31

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closed together near his chest.” Btesh, 2011 WL 3269647, at *8. As the man continued to approach the officer, she shot the man three times. Id. at *8. Officer Denicola explained that based on Btesh’s walking toward her aggressively with his hands close together near his chest, Btesh’s failure to obey commands, the suspected sexual battery, and the fact that Officer Payne was locked outside the apartment, she “had no other choice” but to fire upon Btesh. Officer Denicola surmised that had Btesh grabbed her, he could have taken her gun away and seriously injured or killed her or others. … Officer Denicola further maintained that at the time she shot Btesh, she did not know that he was unarmed or that he had any mental incapacity. Id. at *9. The plaintiff offered the testimony of an expert witness who “emphasized that Btesh ‘offered no physical violence toward[ ] either officer,’ did not threaten to harm the officers, and did not present a weapon.” Btesh, 2011 WL 3269647, at *12. The plaintiff’s expert “based his finding of excessive force on the fact that Officer Denicola was confronted by an unarmed subject.” Id. The expert “maintained that the use of deadly force was not justified because Btesh offered no indication that he had a weapon in his hands.” Id. The United States

District Court for the Middle District of Florida held these facts did not established a violation of either the Fourth Amendment or clearly established law. The district court explained that, “the circumstances surrounding Officer Denicola at the moment she shot Btesh reasonably indicated that Btesh posed a serious threat of physical injury to Officer Denicola.” 32 Btesh, 2011 WL

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3269647, at *19.

Regarding the “clearly established” prong of qualified

immunity analysis, the court wrote, “Plaintiff does not argue that the facts presented here are materially similar to another case finding a violation of the right to be free from excessive force, and the Court found no such case upon conducting its own research.” Btesh, 2011 WL 3269647, at *25. The Btesh opinion was issued only six months before the incident made the basis of this lawsuit. There have been no intervening decisions by the

Eleventh Circuit with materially similar facts. In Btesh, the court noted that, “Failure to cite a materially similar case finding an excessive use of force is generally fatal to a Section 1983 excessive force claim.” Id. at *25 n.29. The plaintiff in Btesh attempted to rely on “broad statement of principle” analysis to overcome the qualified immunity defense. 3269647, at *25. The district court rejected that approach: Plaintiff does not argue that the facts presented here are materially similar to another case finding a violation of the right to be free from excessive force, and the Court found no such case upon conducting its own research. Rather, Plaintiff solely relies on the second method of proving a violation of clearly established law by citing Mercado for the proposition that “the right to be free from the unreasonable use of deadly force in a situation that required less-than-lethal force was a clearly established principle that any reasonable officer would have” known on December 22, 2008. (Doc. No. 134 at 12–13.) However, “the principle that officers may not use excessive force to apprehend a suspect is too broad a concept to give officers notice of unacceptable conduct.” Mercado, 407 F.3d at 1159 (citing Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997)); see also Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011) (“To find that a broad principle of law clearly establishes the law as to a specific set of facts, ‘it must do so ‘with obvious clarity’ to the point that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.' ” (quoting Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002))). 33 Btesh, 2011 WL

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Further, Plaintiff does not cite, and the Court does not find, any authority suggesting, that Officer Denicola’s actions under the circumstances “so obviously violate[d] the constitution that prior case law in unnecessary.” Mercado, 407 F.3d at 1159. Accordingly, Plaintiff has failed to meet his burden of demonstrating that Btesh’s clearly established rights were violated by Officer Denicola. Btesh, 2011 WL 3269647, at *25. In light of the Kesinger and Btesh decisions, the plaintiffs cannot carry their burden to demonstrate that the factual allegations of their complaint depict a clearly established Fourth Amendment violation. According, Officer

Smith moves to dismiss the section 1983 excessive force claim based upon the qualified immunity defense. 2. Count II: The Section 1983 Excessive Force Claim Against The City of Headland and Chief Jones

Count II asserts section 1983 claims against Chief Jones and the City of Headland for alleged violations of O’Patrick’s Fourth, Fifth and Fourteenth Amendment rights against excessive force and cruel and unusual punishment. Paragraphs 37 and 38 state: 37. The City of Headland and the City of Headland Police Department, acting by and through Defendant, Police Chief Mark Jones, individually and in his official capacity, acting under color of law, failed to adequately supervise, train and manage, in particular train, supervise and manage officers regarding standard operating procedures for use of deadly force and dealing with mentally ill subjects; thereby causing foreseeable harm to Decedent O’Patrick Humphrey’s constitutional rights. 38. Defendants, Police Chief Mark Jones, individually and in his official capacity, and/or the City of Headland, and/or the City of Headland Police Department, by and through its policy makers, failed to adequately investigate complaints of previous incidents of wrongful and excessive use of force by officers and instead caused its officers to believe such conduct is permissible; thereby causing 34

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foreseeable harm to Decedent O’Patrick Humphrey’s constitutional rights. (Doc. 1 at 8-9, ¶¶ 10-11.) (a) Inapplicable Constitutional Amendments

As previously discussed, the substantive provisions of the Fifth and Fourteenth Amendments do not apply in this context. See Kesinger ex rel.

Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248 n.2 (11th Cir. 2004) (holding Fourth Amendment, not Fourteenth, governs claims alleging use of excessive force against free citizens); Knoetze v. United States, 634 F.2d 207, 211 (5th Cir. 1981) (“fifth amendment protection attaches only when the federal government seeks to deny a liberty or property interest”). Similarly, the prohibition against cruel and unusual punishment, which appears in the Eighth Amendment, only attaches upon a conviction. See

United States v. Myers, 972 F.2d 1566, 1571 (11th Cir. 1992) (“It is beyond cavil that the Eighth Amendment applies only after a prisoner is convicted.”). Accordingly, the plaintiffs must proceed – if at all – under a Fourth Amendment theory. (b) The Municipal Liability Claim

“The Supreme Court has placed strict limitations on municipal liability under § 1983.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). “Respondeat superior or vicarious liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). “A municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” County Commr.’s v. Brown, 520 U.S. 397, 403 (1997). 35 Board of the

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“To impose section 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). The complaint does not contain factual allegations which plausibly demonstrate the three requirements for municipal liability under section 1983. (i) The complaint No Underlying Constitutional Violation does not plausibly demonstrate an underlying

constitutional violation.

As explained in Section III(C)(1), supra, the claim

against Officer Franks did not survive O’Patrick’s death, and Officer Smith did not violate the constitution.2 “Although [§ 1983] provides the citizen with an effective remedy against those abuses of state power that violate federal law, it does not provide a remedy for abuses that do not violate federal law.” Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992). “[A]n inquiry into a governmental entity’s custom or policy is relevant only when a constitutional deprivation has occurred.” Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996). Because there is no underlying constitutional violation upon which to predicate municipal liability, the city moves to dismiss Count II for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

2

Officer Franks did not violate the constitution either.

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(ii)

No Unconstitutional Custom or Policy

“A city may only be held liable under 42 U.S.C. § 1983 when the injury caused was a result of municipal policy or custom.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir. 2009). “We have required a plaintiff

seeking to impose liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Board of the County Commr.’s v. Brown, 520 U.S. 397, 403 (1997). “The threshold

identification of a custom or policy ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. isolated incident. This prevents the imposition of liability based upon an Rather, the incident must result from a demonstrated

practice.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (quoting Board of the County Commr.’s v. Brown, 520 U.S. 397, 403-04 (1997)) (internal punctuation and citations omitted). To the extent that the allegation of “fail[ure] to adequately investigate complaints of previous incidents of wrongful and excessive use of force” could be construed to allege a custom, (Doc. 1 at 9, ¶ 38), the complaint lacks factual allegations which plausibly demonstrate that any prior complaints of excessive force existed. “[C]onclusory allegations that are not entitled to an assumption of truth.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 37

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The city moves to dismiss Count II based upon its failure to plead factual allegations which plausibly demonstrate an unconstitutional custom or policy. See Fed. R. Civ. P. 12(b)(6). (iii) Lack of Causation

“A municipality can be liable under § 1983 only where its policies are the moving force behind the constitutional violation.” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal punctuation omitted). The complaint also fails to demonstrate a causal link between an unconstitutional municipal custom or policy, on the one hand, and a constitutional violation, on the other. The city moves to dismiss Count II based upon its failure to plead factual allegations which plausibly demonstrate causation. See Fed. R. Civ. P. 12(b)(6). (c) The Supervisor Liability Claim

Count II also asserts a section 1983 supervisor liability claim against Chief Jones. (Doc. 1 at 9, ¶¶ 38-39.) Chief Jones invokes the qualified

immunity defense. “The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous.” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (quoting Braddy v. Florida Dep’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998)). In this case, there is no underlying constitutional violation upon which to base a supervisor liability claim against Chief Jones. See Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005) (“Because we conclude that Plaintiff's constitutional rights were not violated by the search, Plaintiff cannot maintain 38

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a § 1983 action for supervisory liability against Sheriff Moore, Captain Ausburn, or Sergeant Gosnell for failure to train.”). Even if an underlying constitutional violation had occurred, however, the elements of supervisor liability are not present. “A supervisor can be held

liable for the actions of his subordinates under § 1983 if he personally participates in the act that causes the constitutional violation or where there is a causal connection between his actions and the constitutional violation that his subordinates commit.” American Fed’n of Labor and Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1190 (11th Cir. 2011). In this case, there is no allegation that Chief Jones personally participated in the shooting. There are three varieties of supervisor liability under the “causal connection” theory: (1) a history of widespread abuse, (2) the supervisor directed or knowingly allowed the alleged constitutional violation, (3) the supervisor’s custom or policy caused the alleged constitutional violation. “The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fails to do so.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). To maintain a supervisor liability claim under a “history of widespread abuse” theory, however, a plaintiff must allege and prove that the alleged prior constitutional violations were (a) obvious, flagrant, and rampant, (b) of a continued duration, and (c) sufficient to notify the supervisor of the need to take corrective action. See Sanders v. City of Dothan, No. 1:07cv-0008-MEF, 2008 WL 4277818, at *5 (M.D. Ala. Sept. 17, 2008) (Fuller, C.J.). 39

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“Vague and conclusory” allegations of a history of widespread abuse will not survive a motion to dismiss. See Sanders v. City of Dothan, No. 1:07-cv-0008MEF, 2008 WL 4277818, at *5 (M.D. Ala. Sept. 17, 2008) (Fuller, C.J.). In Cottone v. Jenne, the United States Court of Appeals for the Eleventh Circuit held that a complaint did not state a supervisor liability claim when it “d[id] not allege any specific facts at all” connecting the supervisor to the allegedly unconstitutional conduct. 326 F.3d 1352, 1361 (11th Cir. 2003). There are no non-conclusory factual allegations in the complaint which plausibly meet the supervisor liability standard. A complaint falls short when it “does not allege any specific facts at all” to show notice of “even one prior incident.” Cottone v. Jenne, 326 F.3d 1352, 1361-62 (11th Cir. 2003). Although paragraph 38 conclusorily alleges that Chief Jones “failed to adequately investigate complaints of previous incidents of … excessive force,” it does not actually identify any prior incidents. (Doc. 1 at 9, ¶ 38.) “These vague and conclusory allegations do not establish supervisor liability. Plaintiffs make bold statements and legal conclusions without alleging any facts to support them.” Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003). Accordingly, Chief Jones moves to dismiss Count II for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Chief Jones is also entitled to qualified immunity. Even if Count II could somehow be construed to state a section 1983 supervisor liability claim, it does not depict a violation of clearly established law by Chief Jones. “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a 40

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defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Chief Jones moves to dismiss Count II based upon the qualified immunity defense. 3. Count III: The State Law Wrongful Death Claim Against The City of Headland and Chief Jones

Count III asserts state law wrongful death negligence, wantonness and willfulness claims against Chief Jones and the City of Headland arising from the Headland Police Department’s policies, training and supervision. (Doc. 1 at 10, ¶ 43.) Paragraph 43 alleges: Defendants, Police Chief Mark Jones, individually and in his official capacity, and/or the City of Headland, and/or the City of Headland Police Department, by and through its policy makers, failed to establish a proper policy to implement, train and supervise regarding the use of deadly force and the handling of mentally ill subjects and failed to establish policies, procedures, and customs, and/or failed to implement policies, procedures and customs related to the use of deadly force and the handling of mentally ill subjects. The negligent, willful and/or wanton acts proximately caused or contributed to the injuries, damages, and death suffered by Decedent O’Patrick Humphrey on the occasion made the basis of this action. (Doc. 1 at 10, ¶ 43.) Count III does not state a claim against Chief Jones upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Chief Jones and the City of

Headland invoke the state-agent immunity defense under Code of Alabama section 6-5-338. The City of Headland invokes statutory municipal immunity under Code of Alabama section 11-47-190.

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(a)

Failure to State a Claim Against Chief Jones

Count III does not state a claim against Chief Jones because he was not the employer of Officers Franks and Smith. Both officers were employees of the City of Headland. (Doc. 1 at 4, ¶¶ 13-14.) Alabama law does not impose a legal duty upon supervisory co-employees to supervise subordinate coemployees. That duty lies exclusively with the employer. These claims are not cognizable under Alabama law. Judge Butler explained this principle in Ott v. City of Mobile: Alabama law is clear that the tort of negligent supervision or training requires as an element the existence of a master-servant relationship. “We are mindful of ... the fact that this Court recognizes a cause of action against the master based upon the incompetence of the servant.” Lane v. Central Bank, N.A., 425 So. 2d 1098, 1100 (Ala. 1983) (emphasis added); accord Big B, Inc. v. Cottingham, 634 So. 2d 999, 1002-03 (Ala. 1993). A supervisor is not the master of a subordinate, nor is the subordinate the servant of the supervisor; rather, as Alabama cases make plain, the status of “master” is restricted to one who is actually or essentially the employer of the servant. E.g., Tyson Foods, Inc. v. Stevens, 783 So. 2d 804, 807-08 (Ala. 2000) (a contractor becomes the master of a subcontractor by retaining sufficient right to control the manner in which the subcontractor works); Hauseman v. University of Alabama Health Services Foundation, 793 So. 2d 730, 735-36 (Ala. 2000) (using “master” interchangeably with “employer”). Indeed, the plaintiffs recognize as much, admitting that their theory does not depend on negligence of the “employer or master” but of a supervisor. (Doc. 68 at 27). Accordingly, because Alabama recognizes no cause of action against a supervisor for negligent failure to supervise or train a subordinate, Count Four is due to be dismissed. 169 F. Supp. 2d 1301, 1315 (S.D. Ala. 2001). Judge Thompson cited Ott when he granted summary judgment on state law claims alleging negligent hiring, training, and supervision against municipal supervisors in Grider v. City of Auburn, 628 F. Supp. 2d 1322, 42

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1351-52 (M.D. Ala. 2009) (Thompson, J.). United States District Judge Dubose of the Southern District of Alabama followed Ott in Hamilton v. City of Jackson: “Police Chief Burge cannot be liable for negligent training or supervision because no such cause of action exists under Alabama law.” 508 F. Supp. 2d 1045, 1058 (S.D. Ala. 2007). Ott is also consistent with the Restatement (Third) of Agency. Section 7.05(1) states, “A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.” Restatement (Third) of Agency § 7.05(1) (2006). A subordinate employee, however, is not an agent of a supervisory co-employee. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) of Agency § 1.01 (2006). Although a subordinate employee may be subject to the supervisor’s control, the subordinate employee does not act on the supervisor’s behalf. The Restatement labels the supervisory employee a “superior coagent.” See Restatement (Third) of Agency § 1.04(9) (2006). “Coagents have agency

relationships with the same principal.” Restatement (Third) of Agency § 1.04(1)

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(2006). “A superior coagent has the right, conferred by the principal, to direct a subordinate coagent.” Restatement (Third) of Agency § 1.04(9) (2006). “A superior coagent’s right to direct a subordinate coagent does not itself create a relationship of agency between them.” Restatement (Third) of Agency § 1.04 cmt. i (2006). Comment g to § 1.01 illustrates this rule: An actor who acts under the immediate control of another person is not that person’s agent unless the actor has agreed to act on the person’s behalf. For example, a foreman or supervisor in charge of a crew of laborers exercises full and detailed control over the laborers’ work activities. The relationship between the foreman and the laborers is not an agency relationship despite the foreman’s full control, nor is their relationship one of subagency. Section 1.04(8) defines subagency. The foreman and the laborers are coagents of a common employer who occupy different strata within an organizational hierarchy. See § 1.04(9), which defines “superior” and “subordinate” coagents. The foreman’s role of direction, defined by the organization, does not make the laborers the foreman’s own agents. The laborers act on behalf of their common employer, not the foreman. Likewise, the captain of a ship and its crew are coagents, hierarchically stratified, who have consented to act on behalf of their common principal, the ship’s owner. Restatement (Third) of Agency § 1.01 cmt. g (2006). The Alabama Supreme Court explained the legal standard for a negligent supervision claim in Armstrong Business Services, Inc. v. AmSouth Bank: In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due 44

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care, must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care. 817 So. 2d 665, 682 (Ala. 2001) (citations and internal punctuation omitted) (emphasis added). This standard requires the existence of a master and

servant relationship before supervisory liability can arise. Accordingly, Chief Jones moves to dismiss Count III for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). (b) Municipal Immunity Against Direct Tort Claims

As explained above, under Alabama law the duty to train and supervise employees rests exclusively with the employer. However, subject to certain

exceptions which do not apply here, municipal employers have statutory immunity against direct tort actions: No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such 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 or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings… . Ala. Code § 11-47-190 (1975). In construing section 11-47-190’s predecessor, which was substantially identical, the Alabama Supreme Court held, “It seems to us that the limitation of liability in that statute necessarily means to exclude liability on any other account.” City of Bessemer v. Chambers, 8 So. 2d 163, 165 (Ala. 1942). 45

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In City of Lanett v. Tomlinson, the Alabama Supreme Court confirmed that interpretation of the modern statute: This Court has long interpreted § 11-47-190 to limit municipal liability to two distinct classes. The municipality may be liable (1) under the doctrine of respondeat superior for injuries that result from the wrongful conduct of its agents or officers in the line of duty. The municipality may also be liable (2) for injuries that result from its failure to remedy conditions created or allowed to exist on the streets, alleys, or public ways by a person or corporation “not related in service” to the municipality. City of Lanett v. Tomlinson, 659 So. 2d 68, 70 (Ala. 1995). In a long line of cases, this Court has interpreted the statute to limit municipality liability to two distinct classes. In the first classification, the municipality may be liable, under the doctrine of respondeat superior, for injuries resulting from the wrongful conduct of its agents or officers in the line of duty. In the second classification, the municipality may be liable for injuries resulting from its failure to remedy conditions created or allowed to exist on the streets, alleys, public ways, etc., by “a person or corporation not related in service to the municipality.” Ellison v. Town of Brookside, 481 So. 2d 890, 891-92 (Ala. 1985). Consistent with these holdings, the Alabama Supreme Court and the United States District Court for the Southern District of Alabama have rejected direct negligence claims against municipalities. In City of Crossville v. Haynes, the Alabama Supreme Court held that the plaintiff could not bring a direct claim against the city for negligent training. 925 So. 2d 944, 956 (Ala. 2005) (“Haynes was not entitled to assert a ‘direct’ claim against the City of Crossville under § 11-47-190.”). The Alabama

Supreme Court held that the city was entitled to a judgment as a matter of law and reversed a jury verdict for the plaintiff. See id.

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In Styron v. City of Foley, United States District Judge Granade of the Southern District of Alabama held, “Alabama does not recognize an action against a municipality for negligent hiring, supervising, or training.” No. 03572-CG-L, 2005 WL 3098926, at *4-5 (S.D. Ala. Nov. 18, 2005) (Granade, C.J.). United States District Judge Butler, also of the Southern District of Alabama, reached the same holding in Ott v. City of Mobile. 169 F. Supp.2d 1301, 1314-15 (S.D. Ala. 2001) (Butler, C.J.) (holding direct action will not lie against municipality for negligent training of police officer). In light of section 11-47-190, the plaintiffs may not assert a direct tort claim against the City of Headland. The city moves to dismiss the plaintiffs’ direct state law tort claims based upon municipal immunity. See Ala. Code § 11-47-190 (1975). (c) State-Agent Immunity for Chief Mark Jones

Even if the plaintiffs could assert claims against Chief Jones based upon his supervision, training and policymaking for subordinate co-employees, Chief Jones has state-agent immunity under Code of Alabama section 6-5-338: (a) Every peace officer … 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. (b) This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. Ala. Code § 6-5-338 (1975).

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“The restatement of State-agent immunity as set out in Cranman, 792 So. 2d at 405, now governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a).” Ex parte City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005) (citing Ex parte Cranman, 792 So. 2d 392 (Ala. 2000)). As later modified by Hollis v. City of Brighton, the Cranman standard states: 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 (1) formulating plans, policies, or designs; or (2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as: (a) making administrative adjudications; (b) allocating resources; (c) negotiating contracts; (d) hiring, firing, transferring, assigning, or supervising personnel; or (3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; 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, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975; or (5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, 48

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counseling or releasing educating students.

persons

of

unsound

mind,

or

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) (Category 4 modified by Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006)). Sections (1) and (2) of the Cranman standard explicitly confer state-agent immunity for policymaking and supervision. Although the Cranman standard does not explicitly mention training, in Howard v. City of Atmore the Alabama Supreme Court held that category (2)(d) of the Cranman standard also encompasses training: In this connection, Howard argues that category (2) does not specifically mention “training.” She says: “In category (2)(d), this Court identified certain conduct of supervisory personnel such as Chief McKinley as immune. This Court included hiring, firing, transferring, assigning or supervising. It did not include training.” Howard’s appellate brief, at 41 (emphasis added). Thus, she argues, “the conduct that is challenged in this case, i.e., training, implementing/enforcing procedures, and identification and handling of potentially suicidal persons in confinement, [does] not fit within any category of conduct recognized by [Cranman] as immune.” Id. Once again, Howard reads Cranman too rigidly. “The situations listed in subparagraphs (2)(a)-(d) of the Cranman immunity rule are expressly only ‘examples’ of the general principle stated in paragraph (2) itself.” Ryan v. Hayes, 831 So. 2d 21, 31 49

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(Ala. 2002). Category (2)(a)-(d) includes “training,” as well as “supervising.” 887 So. 2d 201, 210 (Ala. 2003). A police officer qualifies as a peace officer for purposes of § 6-5-338. See Borders v. City of Huntsville, 875 So.2d 1168, 1178 (Ala. 2003) (“As a police officer, Earle qualifies as a peace officer for purposes of § 6-5-338.”). “Under § 6-5-338, a law enforcement officer is entitled to State-agent immunity if the officer was performing a discretionary function.” Swan v. City of Hueytown, 920 So. 2d 1075, 1078 (Ala. 2005). Policymaking by a police chief is shielded by State-agent immunity under section 6-5-338. See City of Crossville v. Haynes, 925 So. 2d 944, 954 (Ala. 2005) (“The establishment of such policies and procedures is within the exercise of the chief of police’s judgment in the administration of the department. Acts or omissions dealing with the establishment of such policies or procedures fall within the State-agent-immunity protections discussed in Ex parte Cranman.”). Likewise, “Training and supervision … fall squarely within category (2) of the Cranman formula.” Howard v. City of Atmore, 887 So. 2d 201, 209-10 (Ala. 2003). Upon a showing that the chief’s alleged acts or omissions involved discretionary functions, “the burden shift[s] to the plaintiff to establish that the [chief] acted fraudulently, in bad faith, or with malice or willfulness, in order to deny the defendants the immunity from suit otherwise provided them by § 6-5338.” Moore v. Adams, 754 So. 2d 630, 632 (Ala. 1999). The complaint

contains absolutely no factual allegations to support any of these exceptions. 50

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Allegations of wantonness will not overcome State-agent immunity under § 6-5-338. See Norris v. City of Montgomery, 821 So. 2d 149, 156 (Ala. 2001) (“Even more significantly, § 6-5-338(a), which immunizes peace officers from tort liability for conduct involving the exercise of discretion, makes no exception for wantonness.”). Although paragraph 43 invokes the term “willful,” it does not allege any facts which plausibly demonstrate that Chief Jones willfully injured O’Patrick Humphrey. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). It is utterly implausible to believe Chief Jones – who is not even alleged to have been present during the shooting – willfully injured O’Patrick Humphrey. Chief Jones moves to dismiss Count III based upon the state-agent immunity defense under Code of Alabama section 6-5-338(a). (d) State-Agent Immunity for the City of Headland

Chief Jones’ state-agent immunity under section 6-5-338(a) also immunizes the city under section 6-5-338(b). “In cases such as this where the ‘municipal employee’ is a law enforcement officer, Alabama’s statutory, discretionary function immunity explicitly extends an officer’s immunity to the employing municipality.” Brown v. City of Huntsville, 608 F.3d 724, 742 (11th Cir. 2010) (citing Ala. Code § 6-5-338(b) (1975)). “It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to

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§ 6-5-338(b), the city by which he is employed is also immune.” Howard v. City of Atmore, 887 So. 2d 201, 211 (Ala. 2003). Accordingly, the City of Headland moves to dismiss Count III based upon state-agent immunity. See Ala. Code § 6-5-338(b) (1975). 4. The Overly Broad Ad Damnum Clauses

The ad damnum clauses at the end of each count appear to have been cut and pasted without regard to the parties actually identified in the body of the count. To the extent these clauses purport to seek relief from defendants who are not identified, or who are not the subject of factual allegations, in the body of each count, the defendants move to dismiss for failure to state a claim upon which relief can be granted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Fed. R. Civ. P. 12(b)(6). IV. CONCLUSION For the foregoing reasons, defendants the City of Headland, the City of Headland Police Department, Police Chief Mark Jones, Officer Tony Smith and Officer Tony Franks move to dismiss all claims with prejudice.

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s/ James H. Pike James H. Pike (PIK003) Attorney for Defendants The City of Headland, The City of Headland Police Department, Police Chief Mark Jones, Officer Tony Smith, and Officer Tony Franks OF COUNSEL: SHEALY, CRUM & PIKE, P.C. P.O. Box 6346 Dothan, Alabama 36302-6346 Tel. (334) 677-3000 Fax (334) 677-0030 Email: jpike@scplaw.us CERTIFICATE OF SERVICE I, James H. Pike, certify that on May 15, 2012, I electronically served this document, via the CM/ECF system, upon: Carl E. Underwood, III Lance H. Swanner JACOBY & MEYERS, L.L.C. P.O. Box 5551 Dothan, Alabama 36302 s/ James H. Pike James H. Pike

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