Witt v. Brookside, Alabama, the town of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VINCENT L. WITT, et al., )

)

Plaintiffs, )

) Civil Action Number

v. ) 2:21-CV-00773-AKK

)

TOWN OF BROOKSIDE, et al., )

)

Defendants. )

MEMORANDUM OPINION

This case began with a traffic stop of Vincent Witt (“Pastor Witt”) and Brenda

Witt (“Mrs. Witt”) by a Town of Brookside police officer and the subsequent

publication of photographs and information online by the police department

claiming that Pastor Witt and his sister, Tareya Witt (“Ms. Witt”), who was not in

the car during the traffic stop, were charged with and wanted for the felony of

impersonating a police officer—charges that Pastor Witt and Ms. Witt deny and that

were later dropped. Pastor Witt, Mrs. Witt, and Ms. Witt each plead federal and

state claims against the Town and the three officers allegedly involved in these

events. The defendants move to dismiss all of the claims pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. See docs. 9–12. These motions are briefed,

docs. 14–17, and ripe for review. As explained below, the motions are due to be

granted except as to the following claims, which will proceed to discovery: Pastor

Witt’s and Mrs. Witt’s Fourteenth Amendment equal protection § 1983 claims

against Officer Sellers, Pastor Witt’s Fourteenth Amendment due process § 1983

claims for defamation against Officer Savelle and Officer Jones, Pastor Witt’s state-

law claims for malicious prosecution and defamation against Officer Savelle and

Officer Jones, and Ms. Witt’s state-law claims for malicious prosecution and

defamation against Officer Savelle and Officer Jones.

I.

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading 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,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere

“labels and conclusions” or “a formulaic recitation of the elements of a cause of

action” are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation

marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (citing Twombly, 550 U.S. at 557).

The Federal Rules of Civil Procedure also permit dismissal when a complaint

fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). “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.” Iqbal, 556

U.S. at 678 (citations and internal quotation marks omitted). A complaint states a

facially plausible claim for relief “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citation omitted). The complaint must establish “more

than a sheer possibility that a defendant has acted unlawfully.” Id.; see also

Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to

relief above the speculative level.”). This context-specific inquiry “requires the

reviewing court to draw on its judicial experience and common sense.” Iqbal, 556

U.S. at 679.

II.1

On June 12, 2019, Brookside Police Officer Marcus Sellers stopped Pastor

Witt while he was driving on Interstate 22 with his wife, Brenda Witt. Doc. 7 at ¶¶

12, 15. Officer Sellers told Pastor Witt that he stopped the vehicle “because [he] felt

like it” and because the car had a temporary “paper tag.” Id. ¶¶ 12, 16. Pastor Witt

had purchased the vehicle about one week prior to the stop. Id. ¶ 12. Officer Sellers

did not issue Pastor Witt a citation. Id. ¶ 19. However, Officer Sellers “degrade[d]

1 The plaintiff’s allegations are presumed true for purposes of Rule 12(b)(6). See Grossman v.

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cty., 999

F.2d 1508, 1510 (11th Cir. 1993)). The facts are thus taken from the plaintiffs’ amended

complaint, doc. 7.

and harass[ed]” Pastor Witt by calling him a racist epithet and telling him to “[s]tay

out of Brookside.” Id.

The next day, Pastor Witt contacted the Town’s police department and

complained to an unknown officer about the incident. Id. ¶ 20. Officer James

Sebastian “Bo” Savelle called Pastor Witt back the day after and asked to speak to

“Officer Witt.” Id. ¶ 21. Pastor Witt informed Officer Savelle “he was not an

officer but the chaplain for the city of Lipscomb.” Id. During one of these phone

calls, Pastor Witt was told that Officer Sellers made the traffic stop due to a report

of a stolen car that fit the description of his vehicle. Id. ¶ 22.

After Pastor Witt lodged his complaint, the Town issued warrants for his arrest

and the arrest of his sister, Tareya Witt, for the felony of impersonating a police

officer, id. ¶¶ 23–24, even though Ms. Witt had not been in the vehicle at the time

of the stop, id. ¶¶ 15, 24. The Town’s police department posted photographs of

Pastor Witt and Ms. Witt on the department’s Facebook page and on the website

Crime Stoppers with captions that stated that the two individuals were wanted in

Jefferson County on felony warrants for impersonating police officers. Id. ¶ 25. It

was only after a member of Pastor Witt’s church congregation showed Pastor Witt

the Crime Stoppers images that Pastor Witt and Ms. Witt discovered the allegations

against them. Id. ¶ 26.

Ms. Witt then contacted the Town’s police department, and officers told her

to come to the station and sign an affidavit swearing that either Pastor Witt or Mrs.

Witt had used her name during the traffic stop. Id. ¶¶ 27, 30. Ms. Witt refused

because she knew Pastor Witt and Mrs. Witt had not given her name to the police,

and she believed officers would arrest her if she went to the station. Id. Ms. Witt

also contacted Jefferson County Sheriff Mark Pettway, who immediately had the

online posts with Ms. Witt’s photograph removed. Id. ¶ 26. Eventually, Sheriff

Pettway was able to do the same for Pastor Witt, and the warrants for Pastor Witt’s

and Ms. Witt’s arrests were later dropped after Pastor Witt and Ms. Witt met with

Sheriff Pettway. Id. ¶¶ 31, 34.

Pastor Witt alleges that, because his occupation “naturally requires

maintaining a good reputation in the community,” his present position was

“compromised” when his parishioners learned of the criminal charges on Crime

Stoppers. Id. ¶ 32. He further states that his “opportunity to advance his career and

join another church with a larger congregation was rescinded due to the defamation

suffered.” Id. ¶ 33. Allegedly, if not for the charge against Pastor Witt, he would

have “received an offer of employment from this church.” Id. Pastor Witt also

pleads that he suffered “shame, embarrassment, and humiliation of having his

reputation subjected to false accusations.” Id. ¶ 32. For her part, Ms. Witt alleges

that, because she works for the federal government, she had to inform her managers

of the false charge against her. Id. ¶ 28. She also alleges that she “suffered anxiety

over the uncertainty of whether she would in fact be arrested” and was therefore

“unable to be at ease either at her home or while driving in the car.” Id.

In addition, around this same time, Pastor Witt received a message from the

police department’s Facebook page. Id. ¶ 29. The message told Pastor Witt that he

“had made public false claims of racism which is illegal,” “[had] been charged

appropriately and [would] have his day in court,” “[would be] held accountable” for

“slander[ing] false claims,” and “[needed to] exercise [sic] racism from [his] life.”

Id.

III.

The Witts raise federal and state claims against the Town; Officer Sellers;

Officer Savelle; and the Town’s then-chief of police, Officer Jones. Doc. 7. Pastor

Witt pleads that the Town and Officer Sellers violated his Fourth Amendment rights

(Count I); that Officer Sellers falsely imprisoned him (Count III); that the defendants

violated his Fourteenth Amendment equal protection rights (Count V); that Officers

Sellers, Savelle, and Jones maliciously prosecuted him (Count VIII);2 that the Town

and Officers Savelle and Jones defamed him under state law (Count X); that the

Town and Officers Savelle and Jones defamed him in violation of his Fourteenth

2 The plaintiffs abandoned their claim for the tort of outrage, Count VII. See docs. 7 at 13; 14 at

10.

Amendment due process rights (Count XII); and that the Town and Officer Jones

failed to train officers with the police department in violation of 42 U.S.C. § 1983

(Count XIII). Id.

Mrs. Witt pleads that the Town and Officer Sellers violated her Fourth

Amendment rights (Count II), that Officer Sellers falsely imprisoned her (Count IV),

that Officer Sellers violated her Fourteenth Amendment equal protection rights

(Count VI), and that the Town and Officer Jones failed to train the police department

in violation of 42 U.S.C. § 1983 (Count XIV). Id.

Ms. Witt pleads that Officers Sellers, Savelle, and Jones maliciously

prosecuted her (Count IX); that the Town and Officers Savelle and Jones defamed

her under state law (Count XI); and that the Town and Officer Jones failed to train

the police department in violation of 42 U.S.C. § 1983 (Count XV). Id.

The defendants move to dismiss these claims. See docs. 9–12. Generally, all

of the defendants contend that Officer Sellers had reasonable suspicion to stop Pastor

Witt and Mrs. Witt due to the paper tag affixed to Pastor Witt’s vehicle. See id.

They also argue that the online posts were both truthful and privileged. See id.

The Town asserts that the plaintiffs do not plausibly allege a policy or custom

that resulted in constitutional injuries, as required for the alleged Fourth or

Fourteenth Amendment violations. See doc. 9. The Town also asserts it is immune

from liability for the state-law claims and that the plaintiffs have failed to comply

with requirements under Alabama Code §§ 11-47-23 and 11-47-192. See id.

The individual officers each assert the doctrines of qualified immunity and

state-agent immunity. See docs. 10–12. In addition, Officer Jones, the then-chief of

the department, argues that the plaintiffs fail to plausibly allege more than a single

incident of potentially unconstitutional conduct by his subordinates, and so the

claims of supervisory liability must fail. See doc. 10.

Given the variety of claims and the multitude of parties involved, the court

provides a brief roadmap of its analysis. First, the court addresses the federal claims,

beginning with Pastor Witt’s and Mrs. Witt’s Fourth Amendment claims, which

compose or underlie Counts I, II, XIII, and XIV. Infra § III.A. Then, the court

addresses Pastor Witt’s and Mrs. Witt’s Fourteenth Amendment claims against all

of the defendants (in Pastor Witt’s case) and Officer Sellers (in Mrs. Witt’s case),

which compose or underlie Counts V, VI, and XII–XIV. Infra § III.B. In discussing

these federal claims, the court addresses the failure-to-train claims predicated on the

alleged constitutional injuries, including Ms. Witt’s § 1983 failure-to-train claim

against Officer Jones and the Town, Count XV. The court then shifts to the state

claims: Pastor Witt’s and Mrs. Witt’s false imprisonment claims against Officer

Sellers, Counts III and IV, infra § III.C; Pastor Witt’s and Ms. Witt’s malicious

prosecution claims, Counts VIII and IX, infra § III.D; and finally, Pastor Witt’s and

Ms. Witt’s defamation claims, Counts X and XI, infra § III.E.

A.

The defendants claim Officer Sellers had reasonable suspicion to stop Pastor

Witt and Mrs. Witt. Therefore, they contend that none of them are liable under

§ 1983 for the initiation of the traffic stop. The court agrees.

1.

“Section 1983 provides a federal remedy for ‘the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws.’” Martin v. Wood,

648 F. App’x 911, 913–14 (11th Cir. 2016) (citing 42 U.S.C. § 1983). Pastor Witt

and Mrs. Witt allege § 1983 claims for Fourth Amendment injuries against Officer

Sellers, the Town, and Officer Jones as the supervisor of Officer Sellers.

The court begins with the § 1983 Fourth Amendment claims against Officer

Sellers, who asserts his entitlement to qualified immunity. “Qualified immunity

shields public officials from suits against them in their individual capacities for torts

committed while performing discretionary duties unless the tortious act violates a

clearly established statutory or constitutional right.” Zivojinovich v. Barner, 525

F.3d 1059, 1071 (11th Cir. 2008). The doctrine is designed to render immune from

liability “all but the plainly incompetent or one who is knowingly violating the

federal law.” See Patel v. City of Madison, 959 F.3d 1330, 1337 (11th Cir. 2020)

(internal quotation marks omitted). Qualified immunity, a judge-made invention,

thus prevents plaintiffs from holding officers accountable for misconduct unless the

misconduct violates plaintiffs’ “clearly established” rights.

To invoke the doctrine, an officer must first establish that he or she “act[ed]

within the scope of his or her discretionary authority when the challenged action

occurred.” Id. “The term ‘discretionary authority’ ‘include[s] all actions of a

governmental official that (1) were undertaken pursuant to the performance of his

duties, and (2) were within the scope of his authority.’” Id. (finding officer acted

within discretionary authority when he performed “takedown” of plaintiff “while on

duty as a police officer conducting investigative functions”). Here, Officer Sellers

engaged in investigative functions as an on-the-job officer when he effectuated the

traffic stop, and so he acted within his discretionary authority.

The burden thus shifts to Pastor Witt and Mrs. Witt to sufficiently allege (1) a

violation of their constitutional rights and (2) that these rights were “clearly

established” at the time of the misconduct. See Perez v. Suszczynski, 809 F.3d 1213,

1218 (11th Cir. 2016) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Though courts may consider these two factors in either order, the “traditional

approach” instructs (but does not mandate) the court to begin with whether Pastor

Witt’s and Mrs. Witt’s constitutional rights were violated under the Fourth

Amendment, as they allege. See Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th

Cir. 2009); Pearson v. Callahan, 555 U.S. 223, 236 (2009).

a.

The Fourth Amendment protects individuals against unreasonable searches

and seizures. U.S. CONST. AMEND. IV. Traffic stops undoubtedly constitute

“seizures” under the Fourth Amendment. United States v. Perkins, 348 F.3d 965,

969 (11th Cir. 2003); Delaware v. Prouse, 440 U.S. 648, 653 (1979). When an

officer stops and “seizes” a vehicle, the officer also seizes the driver and any

passengers. Prouse, 440 U.S. at 653; Brendlin v. California, 551 U.S. 249, 255–56

(2007). There is thus no doubt that Officer Sellers seized Pastor Witt and Mrs. Witt

when he pulled them over.

“Because a routine traffic stop is only a limited form of seizure, it is more

analogous to an investigative detention than a custodial arrest.” United States v.

Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001) (citing Berkemer v. McCarty, 468

U.S. 420, 439 (1984)). The standard articulated in Terry v. Ohio, 392 U.S. 1 (1968),

governs the constitutionality of traffic stops. Id. Under Terry, an officer “can detain

a motorist for a brief investigation when the officer has a ‘reasonable, articulable

suspicion based on objective facts that the person has engaged in, or is about to

engage in, criminal activity.’” United States v. Byron, 817 F. App’x 753, 757 (11th

Cir. 2020) (quoting United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000)).

Reasonable suspicion requires at least a “minimal level of objective

justification,” id., and the officer’s actions must be reasonably related in both scope

and duration to the circumstances that justified the stop and the time necessary to

effectuate it, Purcell, 236 F.3d at 1277. The court must “look at the totality of the

circumstances of each case to see whether the detaining officer ha[d] a particularized

and objective basis for suspecting legal wrongdoing.” Perkins, 348 F.3d at 970

(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)) (internal quotation

marks omitted). Applying these standards, for example, the Eleventh Circuit

previously held that an officer had probable cause to stop a vehicle after watching

the driver fail to signal while making a lane change, as required under state law.

United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008). Moreover, the

Supreme Court has held that an officer’s “subjective motivations for conducting a

stop” do not bear on “the objective inquiry into whether the stop [was] reasonable

under the Fourth Amendment.” See Byron, 817 F. App’x at 757 (quoting United

States v. Lewis, 674 F.3d 1298, 1304 n.3 (11th Cir. 2012)); Whren v. United States,

517 U.S. 806, 812–13 (1996).

b.

Pastor Witt and Mrs. Witt contend that Officer Sellers stopped their vehicle

without “the objective, reasonable suspicion of criminal activity as required by Terry

v. Ohio to justify a traffic stop and thus a Fourth Amendment seizure.” Doc. 7 at

¶ 40 (citing Perkins, 348 F.3d at 969). The Witts do not argue that Officer Sellers

unjustifiably prolonged or exceeded the scope of the traffic stop but rather that

Officer Sellers lacked the reasonable basis required to initiate the stop at all. They

allege Officer Sellers stopped Pastor Witt and Mrs. Witt “for having a paper tag on

[Pastor Witt’s] new black Cadillac vehicle, which he had purchased roughly a week

prior” to the stop. Id. ¶ 12. They further allege that Officer Sellers told Pastor Witt

that “[Officer Sellers] had stopped him ‘because [he] felt like it’ and because [Pastor

Witt’s] car had a paper tag,” but Officer Sellers did not issue Pastor Witt a citation.

Id. ¶¶ 16, 19. Rather, Officer Sellers allegedly told Pastor Witt to “[s]tay out of

Brookside” and called him a racist slur. Id. ¶ 19.

This alleged conduct is reprehensible, and it harkens back to the dark period

in our nation’s history when officers blatantly displayed racist tendencies and

weaponized their badges to keep minorities from certain communities under the

guise of “law enforcement.” It was shameful then and more so now for law

enforcement to continue to allegedly behave in this manner. The court, however,

can evaluate only the objective totality of the circumstances surrounding the stop to

determine whether Officer Sellers had at least reasonable suspicion to effectuate it.

See Perkins, 348 F.3d at 970. Frustratingly, precedent does not permit the court to

consider Officer Sellers’ “subjective motivations” for pulling over Pastor Witt’s

vehicle in the court’s Fourth Amendment analysis, however blatant Officer Sellers’

motivations may appear based on his alleged comments to Pastor Witt. See Whren,

517 U.S. at 812–13; Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

Relevant here, the parties agree that Pastor Witt drove a car that displayed a

paper tag. Alabama law requires every motor vehicle operator driving on city streets

or public highways to “at all times keep attached and plainly visible on the rear end

of such motor vehicle a license tag or license plate as prescribed and furnished by

the Department of Revenue at the time the owner or operator purchases his license.”

ALA. CODE § 32-6-51. A new owner of a motor vehicle has 20 days to purchase a

license plate or transfer an existing license plate to the new vehicle. United States

v. Smith, 164 F. App’x 825, 826 n.3 (11th Cir. 2006) (citing ALA. CODE § 40-12-

260(a)(4)). In Smith, the Eleventh Circuit affirmed the district court’s ruling that an

officer had probable cause to stop a vehicle with a “paper car lot tag” in part because

the vehicle lacked the license required by law and the officer sought to confirm the

driver was within the 20-day grace period. Id. Working on the nighttime “burglary

detail,” the officer also noticed the vehicle was parked next to a closed office

building at a complex experiencing “problems with vandalism and car burglary,”

and the officer “did not recognize the vehicle as belonging to a resident” of the

complex. Id. at 827–28. The Circuit concluded that “the initial stop of the vehicle

was based upon a potential traffic violation, as well as a reasonable suspicion that

the occupants of the vehicle were involved in criminal activity.” Id. at 828.

The court likewise concludes that, on the facts alleged, Officer Sellers had at

least a reasonable basis to conduct a brief investigative stop of Pastor Witt’s vehicle

for the limited purpose of determining whether the paper dealership tag affixed to

his car was legal under Alabama law. See id.; Harris, 526 F.3d at 1338. Moreover,

the complaint does not insinuate that Officer Sellers extended the stop beyond the

scope and duration necessary to make this assessment. Again, precedent does not

allow the court to inquire into Officer Sellers’ subjective intentions, however

apparent these intentions may be surmised from the racist comments he allegedly

made. Thus, Pastor Witt’s and Mrs. Witt’s Fourth Amendment rights were not

violated by the traffic stop, and their Fourth Amendment § 1983 claims against

Officer Sellers are due to be dismissed.

2.

Pastor Witt and Mrs. Witt also allege § 1983 claims against the Town and

Officer Jones for failing to train officers within the police department, resulting in

the allegedly unconstitutional traffic stop. The court begins with the § 1983 claims

against the Town before turning to the allegations against Officer Jones.

a.

The § 1983 claims against the Town cannot rest on Officer Sellers’ traffic stop

for the paper tag on Pastor Witt’s vehicle. Again, as discussed, because Officer

Sellers had reasonable suspicion to stop the car in order to validate its paper tag, the

Town cannot be liable for a constitutional violation that did not occur.

Rather, to hold a municipality liable for a constitutional violation under

§ 1983, a plaintiff must establish that the officers committed a constitutional

violation pursuant to a municipal “policy” or “custom.” Griffin v. City of Opa-

Locka, 261 F.3d 1295, 1307 (11th Cir. 2001). A plaintiff must “identify either (1) an

officially promulgated [municipal] policy or (2) an unofficial custom or practice of

the [municipality] shown through repeated acts of a final policy maker for the

[municipality].” Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003).

And, relevant here, “the inadequacy of police training may serve as the basis

for § 1983 liability” for municipalities “where the failure to train amounts to

deliberate indifference to the rights of persons with whom the police come into

contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). Put another way, if a

municipality’s failure to train its police officers evidences a “deliberate indifference”

to the rights of the municipality’s residents, “[the] shortcoming [can] be properly

thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id. at 389.

However, the plaintiff must identify a deficiency in the municipality’s training

program and connect the deficiency to the alleged constitutional violation. See id.

at 391–92. “[A] pattern of similar constitutional violations by untrained employees

is ordinarily necessary to demonstrate deliberate indifference for purposes of failure

to train.” Vielma v. Gruler, 808 F. App’x 872, 882 (11th Cir. 2020) (internal

quotation marks omitted).

Here, Pastor Witt and Mrs. Witt allege that the Town’s police department has

a regular custom, policy, and practice of stopping motorists on this

section of I-22 on pretextual or disallowable bases in order to make

money from motorists who may have neither the time nor the money to

fight an improper ticket in court. This includes unauthorized stops for

left lane driving purporting to be under the authority of Ala. Code § 32-

5-77 as well as stops for alleged speeding violations outside of the city’s

municipal jurisdiction which the city is barred from making under Ala.

Code § 32-5A-171(9).

Doc. 7 at ¶ 14; see also id. ¶¶ 43, 53. Pastor Witt and Mrs. Witt add in support a

news article from 2019 in which Alabama drivers complained of allegedly bogus

tickets, especially for left-lane driving, issued by the Town’s police officers who

patrolled I-22 outside of the Town’s municipal limits. See id. ¶ 43. To be sure, what

Pastor Witt and Mrs. Witt reference, if true, reflects a common and exploitative

practice among many resource-strapped municipalities, which often seek revenue

from drivers passing through.3 But the practice Pastor Witt and Mrs. Witt cite is

different from the conduct they allegedly experienced. In particular, the complaint

3 See, e.g., Fees, Fines, and the Funding of Public Services: A Curriculum for Reform, ARTHUR

LIMAN CTR. FOR PUB. INTEREST LAW AT YALE LAW SCHOOL (Aug. 2020),

https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1026&context=amlaw

(compiling research and scholarly articles regarding relationship between municipal revenue

collection, traffic citations, and low-income residents, including in the rural South); Nick Sibilla,

Nearly 600 Towns Get 10% Of Their Budgets (Or More) From Court Fines, FORBES (Aug. 29,

2019), https://www.forbes.com/sites/nicksibilla/2019/08/29/nearly-600-towns-get-10-of-their-

budgets-or-more-from-court-fines (noting many municipalities that use fines to generate revenue

“are closely clustered around highways or heavily rely on traffic tickets”).

states that Officer Sellers stopped them outside of the Town’s municipal jurisdiction

but within its police jurisdiction due to the paper tag on their vehicle. The complaint

does not state that Officer Sellers stopped Pastor Witt and Mrs. Witt due to a

purported speeding violation, as would be unlawful under Alabama Code § 32-5A-

171(9),4 or for allegedly unlawful left-lane driving. See doc. 7 at ¶ 13. Pastor Witt

and Mrs. Witt also do not plausibly plead that stopping a motorist to verify a paper

dealership tag is unlawful when done outside of a city’s municipal jurisdiction but

within its police jurisdiction.5 And though they argue that the stop lacked reasonable

suspicion, Officer Sellers had the authority to stop their vehicle for the limited

purpose of validating its tag. Therefore, the Town’s alleged practice of pretextually

stopping motorists to generate revenue, while predatory, does not align with the

conduct alleged in the complaint. As pleaded, the complaint fails to state that the

plaintiffs experienced a constitutional violation mirroring a pattern of

unconstitutional conduct that would either constitute a policy or practice or put the

Town on notice of the need to train its officers. Therefore, Pastor Witt’s and Mrs.

4 “Any speed limit set pursuant to this section shall be enforced by any municipality or any law

enforcement officer of a municipality only within the corporate limits of the municipality and not

within the police jurisdiction of the municipality.” ALA. CODE § 32-5A-171(9).

5 The complaint states that Officer Sellers “conducted a seizure outside of his jurisdiction, doing

so without the proper authority and without any reasonable suspicion or probable cause.” Id. ¶ 17.

However, the plaintiffs do not provide additional information regarding Officer Sellers’ alleged

lack of authority to stop the vehicle for a paper tag outside of Brookside’s municipal jurisdiction

but inside its police jurisdiction.

Witt’s Fourth Amendment § 1983 municipal-liability and failure-to-train claims

against the Town are due to be dismissed.

b.

Pastor Witt and Mrs. Witt also plead § 1983 failure-to-train claims against

Officer Jones for the alleged Fourth Amendment violations.6 A supervisor can be

held liable under § 1983 for failing to train employees “where the failure amounts to

deliberate indifference to the rights of persons with whom the [officers] come into

contact.” Keith v. DeKalb Cty., 749 F.3d 1034, 1052 (11th Cir. 2014) (citing Belcher

v. City of Foley, 30 F.3d 1390, 1397 (11th Cir. 1994)). “To establish that [a]

supervisor was on actual or constructive notice of the deficiency of training, ‘[a]

pattern of similar constitutional violations by untrained employees is ordinarily

necessary.’” Id. (citing Connick v. Thompson, 563 U.S. 51, 58 (2011)).

However, as explained, Officer Sellers did have the authority to make the stop

at issue, and so there was no Fourth Amendment violation with regard to the traffic

stop. And, though the plaintiffs allege Officer Jones permitted the Town’s police

6 Supervisory officials cannot be held liable under § 1983 for the unconstitutional acts of their

subordinates on the basis of vicarious liability. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.

1999). Instead, a plaintiff must show either the supervisor “personally participated” in the

constitutional violation or that there is a “causal connection between the supervisor’s actions and

the constitutional violation.” Quinette v. Reed, 805 F. App’x 696, 705 (11th Cir. 2020). A causal

connection is established by “facts which support an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to

stop them from doing so.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). Here,

the plaintiffs do not allege facts showing that Officer Jones personally participated in Officer

Sellers’ stop or otherwise caused the alleged constitutional violation.

department’s “common practice of making traffic stops in or near its police

jurisdiction that it does not have authority to make,” the facts pleaded do not amount

to such a stop here. Thus, the Fourth Amendment § 1983 failure-to-train claims

against Officer Jones are also due to be dismissed.

B.

The three plaintiffs also assert § 1983 claims on the basis of Fourteenth

Amendment violations, including due process and equal protection violations,

against all of the defendants. Specifically, (1) Pastor Witt asserts that all of the

defendants violated his equal protection rights (Count V) and that Officer Savelle,

Officer Jones, and the Town defamed him in violation of his due process rights

(Count XI); (2) Mrs. Witt pleads that Officer Sellers violated her equal protection

rights (Count VI); and (3) Pastor Witt, Mrs. Witt, and Ms. Witt bring § 1983 failure-

to-train claims against Officer Jones and the Town for the officers’ Fourteenth

Amendment violations (Counts XII–XIV)—Mrs. Witt for Officer Sellers’ conduct

at the traffic stop, Ms. Witt for the false charges and publication of the false charges,

and Pastor Witt for both of these incidents.

1.

The court turns first to Pastor Witt’s and Mrs. Witt’s Fourteenth Amendment

equal protection § 1983 claims against Officer Sellers for his conduct during the

traffic stop. Officer Sellers asserts his entitlement to qualified immunity. Doc. 12

at 11. Certainly, if the Witts’ equal protection challenge were to the traffic stop

itself, Officer Sellers would be correct because he was engaged in investigative

functions when he effectuated the stop. See Patel, 959 F.3d at 1337. But the Witts’

equal protection claim against Officer Sellers is based on Officer Sellers’ conduct

during the stop—namely, his alleged use of a racist epithet, coupled with a

disgraceful warning to “stay out of Brookside,” see doc. 7 at ¶¶ 67, 74—rather than

the actual initiation of the stop itself.

An officer is not entitled to qualified immunity if the officer’s action “is so

obviously wrong, in the light of pre-existing law, that only a plainly incompetent

officer or one who was knowingly violating the law would have done such a thing.”

Rehberg v. Paulk, 611 F.3d 828, 838 (11th Cir. 2010) (internal quotation marks

omitted). Simply put, neither a uniform nor a badge can convert intolerable conduct

into an exercise of “discretionary authority.”7 Here, no reasonable officer, including

Officer Sellers, could have believed that Officer Sellers behaved lawfully when he

deployed bigotry in an attempt to intimidate and prevent two African American

citizens from traveling through the Town. In light of the obviously wrong conduct

7 To establish that his actions were within his discretionary authority, Officer Sellers must show

that “those actions were (1) undertaken pursuant to the performance of [his] duties, and (2) within

the scope of [his] authority.” Id. (quoting Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th

Cir. 1998)). Put another way, he must have been “performing a legitimate job-related function

(that is, pursuing a job-related goal)” while using “means that were within [his] power to utilize.”

Id. (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004)). An

officer’s “bald assertion” is insufficient to meet this burden. Id.

alleged, Officer Sellers’ contention that he is entitled to qualified immunity is

unavailing.

Although Officer Sellers is not entitled to qualified immunity, the court must

still address whether the plaintiffs have pleaded a viable claim. The Equal Protection

Clause of the Fourteenth Amendment precludes a state from “deny[ing] to any

person within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND.

XIV. To state an equal protection violation, a plaintiff must “demonstrate that

similarly situated persons outside his protected class were treated more favorably

and that ‘the state engaged in invidious discrimination against him based on race,

religion, national origin, or some other constitutionally protected basis.’” Watson v.

Div. of Child Support Servs., 560 F. App’x 911, 913 (11th Cir. 2014) (quoting Sweet

v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318–19 (11th Cir. 2006)); McCants v. City

of Mobile, 752 F. App’x 744, 750 (11th Cir. 2018). “[T]he isolated use of

a racial epithet, while deplorable, does not rise to the level of a constitutional

violation”; however, the use of a racist slur “accompanied by other harassment or

misconduct” will state an equal protection violation. See Brims v. Barlow, 441 F.

App’x 674, 678 (11th Cir. 2011); Watson, 560 F. App’x at 913–14. Here, because

Pastor Witt and Mrs. Witt allege equal protection violations on the basis of their

race, they must plausibly allege that Officer Sellers treated similarly situated

individuals outside their race more favorably or that he engaged in racist harassment

when he performed the traffic stop. McCants, 752 F. App’x at 750; Mahoney v.

Owens, 818 F. App’x 894, 899 (11th Cir. 2020).

Three cases are instructive. In McCants, the Eleventh Circuit affirmed the

dismissal of a § 1983 equal protection claim in which two African American drivers

alleged that their race “was a motivating factor” in a police officer’s decision to use

excessive force against one of them, “[the officer’s] attitude toward both of them

was racially biased,” and “[the officer’s] attitude toward the white male driver was

dramatically different.” 752 F. App’x at 749–50. One plaintiff, Greene, was

involved in an automobile accident with Manning; the other plaintiff, McCants,

witnessed the accident and stopped to check on Greene. Id. They alleged that the

responding officer “laughed and chatted with Manning, the white male driver, but

became very angry and screamed” at the plaintiffs before “punch[ing] McCants in

the chest.” Id. at 747 (internal quotation marks omitted).

The Circuit held that the plaintiffs were unable to show the officer treated

similarly situated people disparately through state action. Id. at 750. Specifically,

Greene “[did] not allege that Officer Chandler failed to ask the white male driver for

his license and insurance information although he requested it from her,” and “there

were no allegations that McCants, who was not involved in the accident, was

similarly situated to the white male driver, who was involved in the accident.” Id.

In addition, “[n]either plaintiff . . . offered any comments, statements, or facts from

which one could infer that Officer Chandler performed all these tasks with a racial

animus.” Id.

In Watson, the Circuit affirmed the dismissal of the plaintiff’s equal protection

claim against a Georgia Division of Child Support Services (DCSS) agent, noting

the agent’s “offensive or derogatory statements, even if racially tinged or racially

motivated, [could] not violate equal protection guarantees unless they [were] so

pervasive as to amount to racial harassment or [were] accompanied by some other

conduct that deprive[d] a person of the equal protection of the laws.” 560 F. App’x

at 913–914 (citing Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999)). Watson

alleged the DCSS agent discriminated against him by suggesting that African

Americans should work in “inferior” jobs and insinuating that “all black men are the

same.” Id. at 912. The Circuit held that this discriminatory speech must have been

accompanied by discriminatory conduct in order for Watson to state an equal

protection violation. Id. at 914 (citing Williams, 180 F.3d at 706 (“[A]n officer’s

use of a racial epithet, without harassment or some other conduct that deprives the

victim of established rights, does not amount to an equal protection violation.”)).

Finally, in Brims, the Circuit affirmed the district court’s grant of summary

judgment to the defendants where the plaintiff, Brims, asserted an equal protection

claim against an officer who used a racist epithet while arresting him. 441 F. App’x

at 678. After Brims provided the officer, Barlow, with a letter from the Georgia

Department of Motor Vehicles demonstrating his car was validly registered, Barlow

proceeded to “put his hands on [Brims] in an assaultive manner,” pulled him out of

the car, and used a racist slur before handcuffing him and performing a warrantless,

non-consensual car search. Id. at 675. The Circuit held that Brims had not stated an

equal protection claim because, accepting that “Barlow used a racial epithet, Brims

ha[d] not established that Barlow engaged in any other misconduct.” Id. at 678.

In this case, Pastor Witt and Mrs. Witt assert more than just that “were [they]

not Black, the unlawful stop would not have occurred.” Doc. 7 at ¶¶ 66, 73. In

particular, they also challenge Officer Sellers’ conduct during the stop as an equal

protection violation. Id. ¶¶ 67, 74. Because they do not point to similarly situated

motorists outside their race as comparators, the court assesses whether the

allegations plausibly state that Officer Sellers behaved with racial animus that goes

beyond discriminatory speech and shows additional discriminatory conduct on the

basis of Pastor Witt’s and Mrs. Witt’s race. See McCants, 752 F. App’x at 750;

Watson, 560 F. App’x at 913–914.

The plaintiffs agree with this framework and assert they have satisfied its

requirements.8 And indeed, Pastor Witt and Mrs. Witt assert conduct that, at this

pleading stage, goes beyond the conduct alleged in McCants, Watson, and Brims.

8 See doc. 7 at ¶¶ 67, 74 (“The use of the racial epithet alone is perhaps not a sufficient cause for

an equal protection claim, but the harassing behavior of the unlawful stop itself as well as the

warning to ‘stay out’ of the city provide the necessary further step required.”).

Unlike the plaintiffs in McCants, the Witts plead “comments, statements, [and] facts

from which one could infer that Officer [Sellers] performed [the traffic stop] with a

racial animus.” See McCants, 752 F. App’x at 750. Also, unlike the plaintiff in

Watson, the Witts plead more than “just” the use of a racist slur—they also plead

that Officer Sellers told them to “[s]tay out of Brookside,” providing evidence of

harassment. See Watson, 560 F. App’x at 914. And finally, unlike the plaintiff in

Brims, the Witts not only allege further harassment, but this case is also at the

motion-to-dismiss stage, not at summary judgment. See Brims, 441 F. App’x at 678.

Whether Pastor Witt and Mrs. Witt can ultimately prove their claims is a

matter for another day. At this juncture, based on these allegations, they have

pleaded sufficient facts to survive a motion to dismiss. Therefore, Pastor Witt and

Mrs. Witt have stated Fourteenth Amendment equal protection § 1983 claims against

Officer Sellers, and these claims are not due to be dismissed.

2.

Pastor Witt also pleads Fourteenth Amendment equal protection § 1983

claims against Officer Savelle, Officer Jones, and the Town in connection with the

charge lodged against him and the publication of his photograph with the charge.

First, Pastor Witt asserts Officer Savelle “is liable due to his suspected

involvement with placing the plaintiffs’ photos and improper charges on Crime

Stoppers and on Facebook,” which “would not have occurred had [Pastor Witt and

Ms. Witt] not been Black.” Doc. 7 at ¶ 68. Next, Pastor Witt alleges Officer Jones

“is liable due to his having signed off on the improper charges, which would not

have been brought had Pastor Witt not been Black.” Id. ¶ 69. And finally, Pastor

Witt claims the Town “is liable due to [Officer] Jones having final policymaking

authority to decide whether charges are brought, and as such his decision to sign off

on charges represent official city policy.” Id. ¶ 70 (citing Todd v. Kelley, 783 So. 2d

31, 40 (Ala. Civ. App. 2000)). The court begins with the crux of the issue: whether

bringing improper charges against Pastor Witt and/or posting his photograph, along

with the charges, on Crime Stoppers and Facebook—which Pastor Witt asserts

would not have occurred but for his race—constitute(s) an equal protection violation.

As explained, a plaintiff can establish an equal protection violation by

plausibly alleging “that similarly situated persons outside his protected class were

treated more favorably and that ‘the state engaged in invidious discrimination

against him based on race, religion, national origin, or some other constitutionally

protected basis.’” Watson, 560 F. App’x at 913; see also Mann v. Joseph, 805 F.

App’x 779, 785 (11th Cir. 2020). Here, although the plaintiffs assert the improper

charges “would not have been brought had Pastor Witt not been Black,” see doc. 7

at ¶¶ 68–70, they do not identify similarly situated individuals who are outside their

race and who were treated more favorably by the Town’s police officers. The

defendants argue these allegations are thus insufficient to state an equal protection

claim, see, e.g., doc. 11 at 4–5, and the plaintiffs do not appear to respond to this

contention, focusing instead on the equal protection allegations against Officer

Sellers. In light of the foregoing, Pastor Witt’s equal protection § 1983 claim against

Officer Savelle is due to be dismissed because no equal protection violation has been

plausibly alleged on the basis of the improper charges and online posts.

Moreover, as with the Fourth Amendment § 1983 claims, there can be no

supervisory liability, municipal liability, or failure-to-train liability against Officer

Jones or the Town without an underlying constitutional violation or pattern or policy

of unconstitutional practices alleged. See Quinette, 805 F. App’x at 705; Connick,

563 U.S. at 58; Griffin, 261 F.3d at 1307; City of Canton, 489 U.S. at 388. Thus,

Pastor Witt’s Fourteenth Amendment equal protection § 1983 municipal-liability

and failure-to-train claims against Officer Jones and the Town are also due to be

dismissed.

3.

Pastor Witt also asserts that Officers Savelle and Jones and the Town defamed

him in violation of his Fourteenth Amendment due process rights. Specifically,

Pastor Witt contends he was “deprived of a liberty interest without due process of

law because he was denied private employment that he had otherwise been certain

to receive” as a result of the publication of the charge against him. Doc. 7 at ¶ 108.

a.

The court begins with Pastor Witt’s due process § 1983 claims against

Officers Savelle and Jones,9 who assert they are entitled to qualified immunity. As

discussed, the two officers bear the initial burden of establishing they acted within

their discretionary authority. See Estate of Cummings v. Davenport, 906 F.3d 934,

940 (11th Cir. 2018). To meet this burden, Officers Savelle and Jones must show

that their actions “were (1) undertaken pursuant to the performance of [their] duties,

and (2) within the scope of [their] authority.” Id. (quoting Harbert Int’l, 157 F.3d at

1282). The officers must have been “performing a legitimate job-related function

(that is, pursuing a job-related goal)” while using “means that were within [their]

power to utilize.” Id. (quoting Holloman, 370 F.3d at 1265). In assessing these

claims, the court looks to state law to determine the scope of the officers’ authority

and “temporarily put[s] aside” the fact that the conduct “may have been committed

for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional

extent, or under constitutionally inappropriate circumstances.” Id.; Harbert Int’l,

157 F.3d at 1283; Mikko v. City of Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017).

9 In the defendants’ collective reply, Officer Jones contends that he is not liable for any of the

§ 1983 claims because the complaint “makes no plausible allegations that [he] was directly

involved in anything that causally resulted in the Plaintiffs’ claimed injuries.” Doc. 17 at 7.

However, Pastor Witt specifically alleges that Officer Jones “signed off” on Officer Savelle’s

alleged posting of the Witts’ photographs online and that Officer Jones was, at least during the

relevant incidents, “in charge” of the department’s “social media efforts.” Docs. 7 at ¶¶ 104, 108;

15 at 6. Thus, Pastor Witt appears to allege that Officer Jones is liable directly, not solely as a

supervisor or on a failure-to-train theory, for the alleged defamation.

But an officer’s “bald assertion” that his or her actions were within his or her

discretionary authority is insufficient. Id. And, as mentioned, an officer is not

entitled to qualified immunity if the action “is so obviously wrong, in the light of

pre-existing law, that only a plainly incompetent officer or one who was knowingly

violating the law would have done such a thing.” Rehberg, 611 F.3d at 838.

Given the above, and taking the facts alleged as true, the court concludes that

Officers Savelle and Jones are not entitled to qualified immunity. The plaintiffs

assert that the officers’ alleged conduct—“attacking citizens on social media [and]

issuing felony warrants in retaliation for constitutionally protected speech”—is not

“protected discretionary authority.” Doc. 15 at 9. Both of the affected plaintiffs

deny impersonating a police officer; Pastor Witt in fact alleges he corrected Officer

Savelle when Officer Savelle returned his call regarding the traffic stop with Officer

Sellers. See doc. 7 at ¶ 21 (“Savelle asked for ‘Officer Witt,’ to which Pastor Witt

informed him that he was not an officer but the chaplain for the city of Lipscomb.”).

And, allegedly, Ms. Witt was not even present at the traffic stop that led to the felony

charges. Id. ¶ 15.

Neither the plaintiffs nor the defendants provide factual matter suggesting the

officers had probable cause or even arguable probable cause10 to issue the charges

10 Arrests, and thus arrest warrants, require probable cause. See Jones v. Cannon, 174 F.3d 1271,

1283 (11th Cir. 1999). But an officer who makes an arrest lacking in probable cause is still entitled

to qualified immunity “if there was arguable probable cause for the arrest.” Id. Arguable probable

against these two plaintiffs for impersonation of a police officer. Further still, the

officers fail to support their “bald assertion[s]” that they acted within their

discretionary authority with factual allegations showing they are actually entitled to

immunity. See docs. 10 at 9–12; 11 at 11–13. Given the alleged and, truthfully,

bizarre conduct—issuing and approving fabricated charges against Pastor Witt and

Ms. Witt for impersonating police officers, without probable cause, and publicizing

the charges on Facebook and Crime Stoppers in retaliation for Pastor Witt’s

complaint—the court is unconvinced that Officers Savelle and Jones are entitled to

qualified immunity.

b.

The court thus turns to whether Pastor Witt plausibly alleges a due process

violation by Officers Savelle and Jones based on his contention that he lost an

employment opportunity as a result of the officers’ defamatory conduct. Under

Supreme Court precedent, Pastor Witt’s claim must satisfy the “stigma-plus” test,

which states that defamatory speech plus an injury to recognized rights or interests

or those provided by law can violate the Due Process Clause.11 See Paul v. Davis,

424 U.S. 693, 711 (1976).

cause exists “if a reasonable police officer, knowing what [the officer at issue] knew, could have

believed there was probable cause for the warrantless arrest.” Id. (citing Gold v. City of Miami,

121 F.3d 1442, 1445 (11th Cir. 1997), cert. denied, 525 U.S. 870 (1998)).

11 “No State shall . . . deprive any person of life, liberty, or property, without due process of law[.]”

U.S. CONST. AMEND. XIV.

In Paul, the Court held that the plaintiff could not bring a § 1983 claim for

defamation based on police officers’ distribution of flyers to local businesses

publicizing mugshots and names of “active shoplifters,” including the plaintiff,

whose charges were later dropped. 424 U.S. at 695. The due process claim

[was] grounded upon his assertion that the flyer, and in particular the

phrase ‘Active Shoplifters’ appearing at the head of the page upon

which his name and photograph appear[ed], impermissibly deprived

him of some ‘liberty’ protected by the Fourteenth Amendment. His

complaint asserted that the ‘active shoplifter’ designation would inhibit

him from entering business establishments for fear of being suspected

of shoplifting and possibly apprehended, and would seriously impair

his future employment opportunities.

Id. at 697. Acknowledging “such consequences may [have] flow[ed] from the flyer

in question,” the Court remarked that the plaintiff “appear[ed] to state a classical

claim for defamation action in the courts of virtually every State.” Id. Yet the

plaintiff had brought a Fourteenth Amendment claim, and the Court held that

defamation, standing alone, does not violate federal due process rights without injury

to tangible interests or rights previously recognized by law. See id. at 710–11.

Similar to Paul, the instant case involves the publication of a criminal charge

against Pastor Witt, with his name and photograph, before adjudication of a charge

that was subsequently dropped.12 These online posts, like the flyers in Paul, were

stigmatizing to Pastor Witt, as they labeled him as “wanted in Jefferson County” on

12 Because only Pastor Witt, and not Ms. Witt, brings a Fourteenth Amendment due process § 1983

claim for defamation, the court discusses here only the conduct as it pertains to Pastor Witt.

a criminal charge for the felony of impersonating a police officer. The question is

whether Pastor Witt experienced the denial of a tangible interest or a right or status

previously recognized and protected by law. See Paul, 424 U.S. at 701; Cannon v.

City of W. Palm Beach, 250 F.3d 1299, 1302 (11th Cir. 2001); Behrens v. Regier,

422 F.3d 1255, 1261 (11th Cir. 2005); Smith v. Siegelman, 322 F.3d 1290, 1296

(11th Cir. 2003).

The Court in Paul noted that precedent “[did] not establish the proposition

that reputation alone, apart from some more tangible interests such as employment,

is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection

of the Due Process Clause.” 424 U.S. at 701 (emphasis added). This language

suggests that obstacles to continued employment, and especially discharge,

constitute due process violations when paired with defamatory conduct by the

government. But a discharge is not strictly necessary. Following Paul, the Eleventh

Circuit has rejected, for example, a due process claim in which a plaintiff “ha[d] not

contended that he was discharged, demoted, or rejected from a job” due to the stigma

of his designation as a sexual abuser, Smith, 322 F.3d at 1297, and a due process

claim in which a plaintiff did not allege “that he had suffered any loss of

employment, any diminution of salary, or anything else that would in our view

qualify as some more tangible interest, as required by Paul” following the issuance

of two Eleventh Circuit opinions criticizing his conduct as an attorney, United States

v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (cleaned up).

Pastor Witt alleges that a specific employment opportunity with a different

church, one that would have “advance[d] his career,” was “rescinded” following

Officers Savelle’s and Jones’ publication on Facebook and Crime Stoppers of

charges that were never adjudicated and were later dropped. Doc. 7 at ¶ 33. Because

Pastor Witt goes a step further than the plaintiffs in Paul, Smith, and Sigma

International by pleading that he lost the specific chance “to join another church

with a larger congregation” as a result of the defendants’ stigmatizing posts, id. ¶ 33,

the complaint plausibly states a Fourteenth Amendment due process violation. Thus,

Pastor Witt’s due process § 1983 claims against Officers Savelle and Jones

individually are not due to be dismissed at this stage.

c.

The court turns to Pastor Witt’s Fourteenth Amendment § 1983 claims against

the Town and Officer Jones. These claims appear to be predicated on Pastor Witt’s

Fourteenth Amendment due process § 1983 claim. Read together, the claims seem

to allege that but for the Town’s “policy of failing to confirm necessary facts and

truths before publicly defaming individuals,” and but for the Town’s and Officer

Jones’ “deliberate indifference toward the constitutional rights” of people traveling

through the Town, the false charges and publication would not have occurred. See

id. ¶¶ 105–15. The court addresses the claims against the Town and Officer Jones

in turn.

i.

Pastor Witt’s § 1983 claim against the Town is twofold. First, Pastor Witt

contends that the Town is liable “because the defamation was done by the city’s

police department and on the city police department’s official Facebook page, and

because posting the unsubstantiated allegations demonstrates a policy of failing to

confirm necessary facts and truths before publicly defaming individuals.” Id. ¶ 105.

Second, Pastor Witt claims the Town is liable “due to a deliberately indifferent

failure to train its officers to respect citizens’ constitutional rights.” Id. ¶ 109. Pastor

Witt thus alleges municipal liability—for the Town’s alleged “policy of failing to

confirm necessary facts and truths”—and failure-to-train liability.

Pastor Witt can establish the officers committed a constitutional violation

pursuant to a Town “policy” or “custom,” Griffin, 261 F.3d at 1307, by pleading

facts to identify an official policy or an unofficial practice of the Town shown

through repeated acts of a final policy maker for the Town, Grech, 335 F.3d at 1329.

However, Pastor Witt fails to plausibly allege such a policy or practice with respect

to “failing to confirm necessary facts and truths before publicly defaming

individuals” on the Department’s Facebook page. See doc. 7 at ¶ 105. Pastor Witt

pleads only this specific instance in which allegedly improper charges were brought

against him and publicized. He does not identify an official Town policy or a pattern

of such acts, particularly by individuals in final policy-making positions for the

Town. The single instance alleged is insufficient to establish municipal liability.

Grech, 335 F.3d at 1330 n.6.

A municipality can also be held liable for failures in police training “where

the failure to train amounts to deliberate indifference to the rights of persons with

whom the police come into contact.” City of Canton, 489 U.S. at 388. To establish

this, an identified deficiency in the Town’s training program must be connected to

Pastor Witt’s alleged constitutional injury. See id. at 391–92. However, Pastor Witt

pleads only that the Town exhibited “a deliberately indifferent failure to train its

officers to respect citizens’ constitutional rights,” doc. 7 at ¶ 109, and the court finds

that this allegation, without more, is insufficient to establish failure-to-train liability.

The due process § 1983 claims against the Town are due to be dismissed.

ii.

Pastor Witt also asserts a § 1983 failure-to-train claim against Officer Jones

due to the alleged defamation. See doc. 7 at ¶ 111. But Pastor Witt does not allege

a pattern of unconstitutional conduct such that Officer Jones was on actual or

constructive notice of a failure in his officers’ training resulting in the defamation.

See Keith, 749 F.3d at 1052. Rather, Pastor Witt only alleges facts supporting a

theory of individual § 1983 liability against Officer Jones on this basis. Pastor Witt’s

§ 1983 failure-to-train claim against Officer Jones is thus due to be dismissed.

4.

The court briefly addresses Ms. Witt’s § 1983 failure-to-train claims against

Officer Jones and the Town. As explained, a supervisor or municipality is liable

under § 1983 for failing to train employees “where the failure amounts to deliberate

indifference to the rights of persons with whom the [officers] come into contact.”

Keith, 749 F.3d at 1052; City of Canton, 489 U.S. at 388. To establish supervisory

liability, “[a] pattern of similar constitutional violations by untrained employees is

ordinarily necessary.” Keith, 749 F.3d at 1052 (citing Connick, 563 U.S. at 58)

(internal quotation marks omitted). And to establish municipal liability, an

identified deficiency in a municipality’s training program must be connected to the

alleged constitutional injury. See City of Canton, 489 U.S. at 391–92.

Ms. Witt, however, does not plead an underlying constitutional violation to

support her § 1983 failure-to-train claim. See doc. 7 at ¶¶ 122–27. Moreover, Ms.

Witt does not allege facts stating a pattern of unconstitutional conduct such that

Officer Jones was on actual or constructive notice of a failure in his officers’ training

resulting in a constitutional violation. See Keith, 749 F.3d at 1052. Rather, for her

part, Ms. Witt alleges only state-law claims (malicious prosecution and defamation,

Counts IX and XI, respectively), id. ¶¶ 87–93, 100–06, and a § 1983 failure-to-train

claim. The court assumes that Ms. Witt’s § 1983 failure-to-train claim is predicated

on the Fourteenth Amendment, but without an alleged constitutional injury to Ms.

Witt, the court cannot determine whether Ms. Witt plausibly states a § 1983 failure-

to-train claim. Therefore, Ms. Witt’s failure-to-train claims against Officer Jones

and the Town are due to be dismissed.

C.

The court turns now to the state-law claims, beginning with Pastor Witt’s and

Mrs. Witt’s contention that Officer Sellers falsely imprisoned them.13 Officer

Sellers asserts his entitlement to state-agent immunity.

“Under Alabama law, ‘[s]tate-agent immunity protects state employees, as

agents of the State, in the exercise of their judgment in executing their work

responsibilities.” Brown v. City of Huntsville, 608 F.3d 724, 740 (11th Cir. 2010).

To claim immunity, the officer must first demonstrate that the plaintiff’s claims arise

from a function that would entitle the officer to immunity. Id.; Ex parte Estate of

Reynolds, 946 So. 2d 450, 452 (Ala. 2006). An officer is immune when the conduct

alleged is based upon “exercising judgment in the enforcement of the criminal laws

of the State, including, but not limited to, law-enforcement officers’ arresting or

13 “False imprisonment consists in the unlawful detention of the person of another for any length

of time whereby he is deprived of his personal liberty.” ALA. CODE § 6-5-170.

attempting to arrest persons.” Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000).14

If an officer establishes that the claims arise from the officer’s discretionary

functions, the burden shifts to the plaintiff to show that the officer acted willfully,

maliciously, fraudulently, in bad faith, beyond his or her authority, or under a

mistaken interpretation of the law. Brown, 608 F.3d at 741 (citing Estate of

Reynolds, 946 So. 2d at 452).

Here, Officer Sellers asserts that “performing traffic stops is a quintessential

discretionary function.” Doc. 12 at 8–9. He also argues that the court is not required

to accept the plaintiffs’ “conclusory allegations” that Officer Sellers acted willfully,

maliciously, fraudulently, or in bad faith. Id. However, while Officer Sellers’

conduct presumptively falls within the scope of his discretionary functions under

Cranman, the plaintiffs indeed plead factual matter supporting their allegations of

willfulness, maliciousness, or bad faith. The plaintiffs plainly allege that Officer

Sellers used a racist epithet and told Pastor Witt and Mrs. Witt to “[s]tay out of

Brookside,” which “indicate[d] a malicious hostility toward Pastor Witt.” Doc. 7 at

¶ 42. Therefore, Pastor Witt’s and Mrs. Witt’s false imprisonment claims against

Officer Sellers are not due to be dismissed on state immunity grounds.

14 See also ALA. CODE § 6-5-338(a) (police officers “shall have immunity from tort liability arising

out of [their] conduct in performance of any discretionary function within the line and scope of

[their] law enforcement duties”); Brown, 608 F.3d at 741 (“Cranman’s test for state-agent

immunity governs whether law enforcement officers are entitled to statutory, discretionary-

function immunity under § 6-5-338(a).”).

However, false imprisonment requires an “unlawful detention,” ALA. CODE

§ 6-5-170, and the complaint does not plausibly allege the stop was unlawful. As

the parties agree,15 Officer Sellers initiated the stop ostensibly after noticing the car’s

paper tag. See, e.g., doc. 7 at ¶¶ 12, 16. The paper tag gave Officer Sellers a

reasonable basis to temporarily detain the vehicle; the Witts do not cite authority

demonstrating Officer Sellers was not permitted to perform the stop outside of the

Town’s corporate limits. The false imprisonment claims are thus due to be

dismissed.

D.

Pastor Witt and Ms. Witt also plead malicious prosecution claims against

Officers Sellers, Savelle, and Jones. The defendants argue that they are entitled to

state-agent immunity, see, e.g., doc. 11 at 7, and that they never initiated “judicial

proceedings” against the plaintiffs, see, e.g., id. at 6.

15 In response to Officer Sellers’ motion, the plaintiffs assert that “[t]he defense avers that the stop

was for [Pastor Witt’s] vehicle having a ‘paper tag,’” but this “ignores the allegation that [Officer

Savelle] told Pastor Witt that the traffic stop was made because of a report of a stolen car bearing

that description.” Doc. 14 at 1. Though the plaintiffs argue that the paper tag was not the real

reason Officer Sellers pulled the car over, they do not dispute that the car displayed a paper tag.

Doc. 7 at ¶ 12. And the complaint alleges that during the stop, Officer Sellers told Pastor Witt he

stopped them, in part, because the car had a paper tag. Id. ¶ 16. That Officer Sellers and/or Officer

Savelle also believed the car was the subject of a stolen-car report, if true, does not contradict

Officer Sellers’ contention that the paper tag gave him the authority to stop the car.

1.

Officers are immune from civil liability under Alabama law where their

alleged conduct is based on “exercising judgment in the enforcement of the criminal

laws of the State, including, but not limited to, law-enforcement officers’ arresting

or attempting to arrest persons.” Cranman, 792 So. 2d at 405; Estate of Reynolds,

946 So. 2d at 452. In this case, because attempting to make an arrest constitutes a

“discretionary function” under Cranman, the officers here have met their initial

burden of establishing entitlement to state-agent immunity. 792 So. 2d at 405.

However, officers lose this entitlement to state-agent immunity if the plaintiff

plausibly alleges that the officer acted “willfully, maliciously, fraudulently, in bad

faith, beyond his or her authority, or under a mistaken interpretation of the law.” Id.;

see also Brown, 608 F.3d at 741. And here, on the facts alleged, the plaintiffs have

met their burden with respect to Officers Savelle and Jones, but not Sellers.

Pastor Witt and Ms. Witt allege that Officers Savelle and Jones each played a

role in lodging, approving, and publicizing the allegedly false charges for

impersonating police officers. But though they claim that “[a]ll individual

defendants were involved with the initiation of the charges filed and warrant[s]

issued” against them, nowhere do the pleadings describe actions by Officer Sellers

indicating he had a role in the charges, warrants, or online posts. See doc. 7 at ¶¶ 82,

89. Rather, the plaintiffs assert that (1) only after Pastor Witt spoke with Officer

Savelle were the allegedly false warrants issued, id. ¶ 84; (2) they suspect the

publication of the charges and photographs online “[was] committed by Savelle,” id.

¶ 97; and (3) Officer Jones “signed off” on the actions that led to the charges and

online posts, id. They further assert that Officer Jones was “in charge of

Brookside’s . . . social media efforts,” and that the officers “embarked on a social

media campaign and obtained baseless arrest warrants” after Pastor Witt complained

of Officer Sellers’ behavior during the traffic stop. Doc. 15 at 6.

Taken together, at this stage, the complaint plausibly alleges that Officers

Savelle and Jones pursued and publicized charges against Pastor Witt and Ms. Witt

willfully, maliciously, fraudulently, in bad faith, and/or beyond their authority, and

so they are not entitled to claim state-agent immunity. See Cranman, 792 So. 2d at

405; Grider v. City of Auburn, 618 F.3d 1240, 1259 (11th Cir. 2010) (where

plaintiff’s version of events showed lack of arguable probable cause and malice by

officer, officer was not entitled to state-agent or discretionary-function immunity

from malicious prosecution claim). The claims against Officer Sellers, however, do

not evidence such conduct—or, potentially, any conduct—with respect to bringing

and publicizing the allegedly improper charges. The malicious prosecution claims

against Officer Sellers are therefore due to be dismissed.

2.

Under Alabama law, malicious prosecution requires (1) a judicial proceeding

or prosecution instituted or continued by the defendant, (2) lack of probable cause,

(3) malice, (4) termination in the plaintiff’s favor, and (5) injury or damage. Moon

v. Pillion, 2 So. 3d 842, 845 (Ala. 2008); Heining v. Abernathy, 295 So. 3d 1032,

1039 (Ala. 2019). See also Wood v. Kesler, 323 F.3d 872, 881–82 (11th Cir. 2003)

(listing elements of common-law malicious prosecution and noting “these are also

the same elements required under Alabama law for the tort of malicious

prosecution”); Grider, 618 F.3d at 1256.

Officers Savelle and Jones dispute that judicial proceedings were initiated

against Pastor Witt and Ms. Witt. In support, the officers cite Rule 2.1 of the

Alabama Rules of Criminal Procedure, which states that “[a]ll criminal proceedings

shall be commenced either by indictment or by complaint.” ALA. R. CRIM. P. 2.1.

They argue this “either/or” language excludes from the definition of “judicial

proceeding” the bringing of criminal charges and arrest warrants. See, e.g., doc. 10

at 5. The plaintiffs counter with § 15-3-7 of the Alabama Code, which states that

“[a] prosecution may be commenced within the meaning of this chapter by finding

an indictment, the issuing of a warrant or by binding over the offender.” ALA. CODE

§ 15-3-7 (emphasis added).16 It is true that many malicious prosecution cases

involve the filing or continuing of ostensibly baseless lawsuits in Alabama courts,

which Pastor Witt and Ms. Witt do not clearly allege.17 But the defendants do not

cite to and the court has not located any cases expressly limiting a “malicious

prosecution” claim only to those that involve proceedings in court. On the contrary,

the Eleventh Circuit has suggested a malicious prosecution claim can be more

expansive than that. See Grider, 618 F.3d at 1253.

In Grider, the Circuit remanded for trial a case in which the plaintiff filed a

malicious prosecution claim against an officer for issuing a warrant against him

without probable cause. Id. The officer allegedly signed an affidavit and issued an

arrest warrant charging the plaintiff with bribery for trying to pay the officer not to

16 As the defendants point out, this provision of the Alabama Code is nestled in a subsection

regarding the time limitations within which a prosecution must be commenced for certain offenses.

Doc. 17 at 5; see, e.g., ALA. CODE § 15-3-5 (listing offenses that do not have time limitations on

prosecution). However, the defendants do not explain why this fact renders § 15-3-7 irrelevant to

the question of whether the issuing of arrest warrants falls within the meaning of “malicious

prosecution.” Doc. 17 at 5 (“What the Plaintiffs neglect to include in citing that Code section,

however, is that any meaning ascribed to the commencement of a prosecution is limited to that

chapter, which governs limitations periods for criminal violations. Thus, § 15-3-7 offers no support

for the Plaintiffs’ position that judicial proceedings were initiated against them, and they have still

not shown even where any judicial proceedings were commenced in an Alabama court.”).

17 See, e.g., Delchamps, Inc. v. Bryant, 738 So. 2d 824, 832 (Ala. 1999) (“judicial proceeding”

element “undisputed” in malicious prosecution case where store continued to pursue case against

alleged shoplifter despite potentially unassailable alibi); Ford New Holland, Inc. v. Beaty, 602 So.

2d 1198, 1199, 1202–03 (Ala. 1992) (reversing malicious prosecution determination because

probable cause existed where defendant swore facts to clerk regarding physical altercation with

plaintiff, leading to arrest warrant for assault for which plaintiff was found not guilty due to “razor-

thin distinction” between “assault” and “harassment”).

enforce an alcohol ordinance, despite the lack of evidence that the plaintiff had

violated the ordinance. Id. at 1249–50. At a preliminary hearing, the Alabama trial

court in the underlying criminal action dismissed the charge for lack of probable

cause. Id. at 1250. The Circuit permitted the malicious prosecution claims to

proceed to trial, finding that the district court properly denied the officer qualified

immunity and Alabama state-law immunity. Id. at 1253. In so holding, the Circuit

stated that “[t]he elements under Alabama law for the common-law tort of malicious

prosecution are the same [as a § 1983 malicious prosecution claim], except that they

require only a ‘judicial proceeding[,]’ not a ‘criminal prosecution.’” Id. at 1256

(emphasis added).

Grider suggests that, under Alabama law, a plaintiff may pursue a malicious

prosecution claim against an officer who brings a criminal charge or an arrest

warrant against the plaintiff without probable cause.18 The Circuit’s language also

suggests that the term “judicial proceeding” is not meant to exclude the initiation of

criminal charges but, to the contrary, may include something less than a full criminal

prosecution. Moreover, it defies logic to suggest that the conduct alleged in the

instant case could not support a malicious prosecution claim solely because the

18 See also Williams v. City of Abbeville, No. 1:12-CV-263-WKW, 2013 WL 1117297, at *9 (M.D.

Ala. Mar. 18, 2013) (rejecting Alabama malicious prosecution claim where allegations established,

“at most,” that officers knew other officer coerced individual into making false statement

implicating plaintiff in false crime, “not that they signed the criminal complaint in support of the

arrest warrant”).

charges and warrants were dropped before the plaintiffs stepped foot in an Alabama

court—and after the plaintiffs went to considerable lengths to assert their innocence

and have public announcements of the warrants taken down. Under the defendants’

reasoning, private individuals or law enforcement officers could fabricate factual

allegations underlying a criminal charge, use the fabricated information to seek an

arrest warrant, and pursue an arrest, knowing the factual allegations were false but

avoiding liability so long as law enforcement dropped the charges just before the

court proceeding, no matter the damage that occurred in the interim. The law, as

Grider and Williams note, does not support the defendants’ position. Accordingly,

Pastor Witt and Ms. Witt plausibly allege that Officers Savelle and Jones initiated

“judicial proceedings” against them.

Elements two, four, and five also appear to be met on the facts alleged. Taking

the plaintiffs’ factual allegations as true, Pastor Witt and Ms. Witt did not

impersonate police officers, doc. 7 at ¶¶ 21, 24, and so the officers lacked probable

cause to issue charges or arrest them. See Heining, 295 So. 3d at 1039 (“probable

cause” is “reasonable ground for suspicion, supported by circumstances sufficiently

strong in themselves to warrant a cautious man in the belief that the person accused

is guilty of the offense charged”).19 The prosecution terminated in Pastor Witt’s and

19 In fact, Ms. Witt alleges that she was not even present during the traffic stop involving Pastor

Witt and Mrs. Witt and thus could not have engaged in conduct impersonating a police officer

before the officers brought the charge against her. Doc. 7 at ¶ 24.

Ms. Witt’s favors when Sheriff Pettway later had the warrants dropped. Id. ¶¶ 31,

34. And Pastor Witt and Ms. Witt assert “damage” due to the malicious prosecution:

for Pastor Witt, “shame, embarrassment, and humiliation”; reputational harm; and

the loss of a specific career opportunity at a larger church; and for Ms. Witt, “anxiety

over the uncertainty of whether she would in fact be arrested.” Id. ¶¶ 28, 32–33; cf.

Delchamps, 738 So. 2d at 835 (discussing damages related to “mental anguish” and

reputational injury in malicious prosecution).

Given the above, the only remaining element at issue is malice. See

Delchamps, 738 So. 2d at 832. “When no other reasonable explanation exists for the

conduct of the defendant, malice may be inferred.” Id. at 833. The defendant can

defeat this inference by demonstrating good faith. See id. at 833–34. The officers

here provide no reasonable explanation for their charging and issuing of arrest

warrants against Pastor Witt and Ms. Witt for impersonating police officers. Under

the plaintiffs’ version of events, Pastor Witt and Mrs. Witt were stopped for a paper

tag; they left after receiving no citation; Pastor Witt called later to complain about

Officer Sellers’ conduct during the stop; and Pastor Witt and his sister, who was not

even in the car, subsequently learned that felony charges had been brought against

them for impersonating police officers when their images were posted online. See

doc. 7. The court is left with no reasonable explanation for the officers’ strange and

harmful conduct. Pastor Witt and Ms. Witt have plausibly alleged malice, and their

malicious prosecution claims against Officers Savelle and Jones can proceed.

E.

The court turns finally to Pastor Witt’s and Ms. Witt’s defamation claims

against the Town, Officer Savelle, and Officer Jones.

1.

The Town contends that it cannot be liable for Officers Savelle’s and Jones’

intentional conduct. Under Alabama law, a municipality may be liable for injuries

resulting from the neglectful, careless, or unskillful conduct of its officers under the

doctrine of respondeat superior. ALA. CODE § 11-47-190; City of Lanett v.

Tomlinson, 659 So. 2d 68, 70 (Ala. 1995). However, no liability exists for

intentional torts, including actions carried out in bad faith or with malice or

wantonness. See Ex parte Harris, 216 So. 3d 1201, 1216 (Ala. 2016) (citing Ex

parte City of Tuskegee, 932 So. 2d 895, 910 (Ala. 2005); Cremeens v. City of

Montgomery, 779 So. 2d 1190, 1201 (Ala. 2000)).

Here, the complaint alleges that the officers “were aware the accusations were

not true when publishing the information and acted beyond reckless disregard for

the truth and beyond mere negligence, proving [they] published these falsehoods to

the public with actual malice.” Doc. 7 at ¶ 99. Though in other places and filings

the plaintiffs also state that the officers’ actions “[were] at least negligent,” see id.

¶ 95; doc. 16 at 5, the crux of their allegations is that the officers knowingly and

maliciously filed false charges against Pastor Witt and Ms. Witt and engaged in

“widespread publication of defamatory information and personal photos of innocent

individuals, one of whom had no contact with Brookside whatsoever,” docs. 7 at

¶¶ 96–99; 16 at 5. Because the pleadings indicate that the officers’ conduct was

intentional, the state-law defamation claims against the Town are due to be

dismissed under Alabama Code § 11-47-190.

2.

In response to the state-law defamation claims, Officers Savelle and Jones

contend they are entitled to state-agent immunity, see docs. 10 at 10; 11 at 11, and

that the publication of the charges cannot constitute defamation because the

statements publicized were truthful and privileged under Alabama Code § 13A-11-

161, see docs. 10 at 8–9; 11 at 10–11. The court disagrees on both fronts.

a.

Officers Savelle and Jones presumptively acted within their discretionary

authority when they pursued charges and sought to arrest Pastor Witt and Ms. Witt

for impersonating police officers. See Cranman, 792 So. 2d at 405. The burden thus

shifts to Pastor Witt and Ms. Witt to demonstrate that the officers acted “willfully,

maliciously, fraudulently, in bad faith, beyond [their] authority, or under a mistaken

interpretation of the law.” Id.; see also Brown, 608 F.3d at 741.

For the same reasons outlined with regard to the malicious prosecution claim,

Pastor Witt and Ms. Witt have met their burden. Officers Savelle and Jones

allegedly played roles in lodging, approving, and publicizing false charges, knowing

the charges lacked a factual basis, and retaliated against Pastor Witt.20 At this stage,

the complaint plausibly alleges that Officers Savelle and Jones acted willfully,

maliciously, fraudulently, in bad faith, and/or beyond their authority, and they are

not entitled to state-agent immunity. See Cranman, 792 So. 2d at 405.

b.

Under Alabama law, defamation requires (1) a “false and defamatory”

statement about the plaintiff, (2) an “unprivileged communication” of the statement

to a third party, (3) “fault amounting at least to negligence on the part of the

defendant,” and (4) either “actionality of the statement irrespective of special harm”

or “the existence of special harm caused by the publication of the statement.”

McCaig v. Talladega Pub. Co., Inc., 544 So. 2d 875, 877 (Ala. 1989). The officers

here claim that the published statements were truthful and privileged.

“Truth is an absolute defense to defamation.” Drill Parts & Serv. Co. v. Joy

Mfg. Co., 619 So. 2d 1280, 1289 (Ala. 1993) (quoting Liberty Loan Corp. of

20 As mentioned, Pastor Witt and Ms. Witt assert that (1) after Pastor Witt spoke with Officer

Savelle, the warrants were issued, doc. 7 at ¶ 84; (2) they suspect the publication of the charges

and their photographs “[was] committed by Savelle,” id. ¶ 97; and (3) Officer Jones “signed off”

on the actions that led to the charges and posts, id. Allegedly, Officer Jones was “in charge of

Brookside’s . . . social media efforts,” and the officers “embarked on a social media campaign and

obtained baseless arrest warrants” after Pastor Witt complained. Doc. 25 at 6.

Gadsden v. Mizell, 410 So. 2d 45, 49 (Ala. 1982)). While the defendants “ultimately

bear[] the burden of showing that the defamatory words [were] true,” the plaintiffs

“[bear] the initial burden of showing a false communication.” Crutcher v. Wendy’s

of North Ala., Inc., 857 So. 2d 82, 95 (Ala. 2003). Here, Pastor Witt and Ms. Witt

do not dispute that they were charged with felonies for impersonating police officers,

leading to the warrants for their arrest. Doc. 7 at ¶¶ 23–24. But they deny that they

engaged in conduct that gave the officers probable cause to seek the charges and

warrants. See id. Allegedly, the officers fabricated the charges in response to Pastor

Witt’s complaint, and then the officers publicized the charges—which they knew to

be false—using Facebook and Crime Stoppers. See id. ¶ 25.

The defendants’ argument that the Facebook and Crime Stoppers posts cannot

be defamatory because they truthfully report the existence of the arrest warrants is

well-taken at first blush. Yet their argument would lead to illogical results. It would

permit officers to invent false charges, which would support the issuance of actual

arrest warrants, and then escape liability for defamation because a publication that

they created, asserting that arrest warrants were indeed issued, would be technically

true. Accordingly, at this pleading stage, Pastor Witt and Ms. Witt have plausibly

alleged that a “false communication” occurred, and the officers have not met their

burden of showing the communications were truthful.

In addition, Alabama law provides that “[t]he publication of a fair and

impartial report of . . . the issuance of any warrant . . . shall be privileged, unless it

be proved that the same was published with actual malice[.]” ALA. CODE § 13-A-11-

161; see Wiggins v. Mallard, 905 So. 2d 776, 782 (Ala. 2004) (Ҥ 13A-11-161 is an

‘explicit statutory privilege protecting fair and accurate reports of criminal charges

and official investigations’”) (citing Wilson v. Birmingham Post Co., 482 So. 2d

1209, 1211 (Ala. 1986)). “[T]he application of the privilege turns on whether the

alleged defamatory statement was an accurate, or ‘substantially accurate,’

publication of the [warrant].” Wiggins, 905 So. 2d at 783 (internal citations omitted)

(emphasis in original). Moreover, a private individual can defeat the privilege by

showing that “the communication was made with actual or common law malice

(shown by evidence of previous ill will, hostility, threats, other actions, former libels

or slanders, and the like, emanating from the defendant, or by the violence of the

defendant’s language, the mode and extent of the publication, and the like).” Wilson,

482 So. 2d at 1213. Common-law malice may be shown “by proof of ‘the

recklessness of the publication and prior information regarding its falsity.” Wiggins,

905 So. 2d at 788.

The complaint here plausibly alleges that the officers, who filed purportedly

false charges against Pastor Witt and Ms. Witt for impersonating police officers,

publicized the existence of the charges to third parties through the internet with the

awareness that their factual support was wanting, at best, and completely fabricated,

at worst. See doc. 7 at ¶¶ 99, 106. The plaintiffs have plausibly alleged that Officers

Savelle and Jones acted with malice. This, in turn, renders the publication of the

charges unprivileged.

The plaintiffs further allege that the statements were defamatory, in that they

suggested criminal wrongdoing;21 were made with at least negligence (actual or

common-law malice); and caused damage in the form of anxiety (for Ms. Witt), harm

to a specific employment opportunity (for Pastor Witt), and reputational harm and

embarrassment (for both).22 See id. ¶¶ 28, 32–34, 99, 106. The defendants make no

arguments to rebut these contentions. Thus, Pastor Witt’s and Ms. Witt’s state-law

defamation claims against Officers Savelle and Jones are not due to be dismissed.

IV.

To close, officers with the Brookside Police Department allegedly subjected

Pastor Witt and Mrs. Witt first to racist, reprehensible conduct during a traffic stop

before lodging fabricated charges against Pastor Witt and his sister, Ms. Witt, in

21 “Generally, any false and malicious publication, when expressed in printing or writing, or by

signs or pictures, is a libel [if it] . . . charges an offense punishable by indictment or . . . tends to

bring an individual into public hatred, contempt or ridicule or charges an act odious and disgraceful

in society.” Drill Parts & Serv. Co., 619 So. 2d at 1289 (quoting McGraw v. Thomason, 93 So.

2d 741, 744 (Ala. 1957)).

22 Falsely imputing the commission of a felony—here, impersonating a police officer—may

constitute defamation per se, entitling the plaintiffs to presumed damages. See Drill Parts & Serv.

Co., 619 So. 2d at 1289 (citing Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091 (Ala.

1988)).

apparent retaliation for Pastor Witt’s complaint. Given the clarity of the

wrongfulness of this conduct, qualified immunity will not operate as “an absolute

shield for law enforcement officers” in this case. See Kisela v. Hughes, 138 S. Ct.

1148, 1162 (2018) (Sotomayor, J., dissenting).

As explained above, Pastor Witt’s and Mrs. Witt’s Fourteenth Amendment

equal protection § 1983 claims against Officer Sellers, Pastor Witt’s Fourteenth

Amendment due process § 1983 claims against Officer Savelle and Officer Jones,

and Pastor Witt’s and Ms. Witt’s state-law claims for malicious prosecution and

defamation against Officer Savelle and Officer Jones are not due to be dismissed.

Thus, as to those claims, Officer Sellers’, Officer Savelle’s, and Officer Jones’

motions, docs. 10–12, are due to be denied.

However, the officers’ motions to dismiss are due to be granted as to the

§ 1983 claims predicated on alleged Fourth Amendment violations, the § 1983

claims predicated on alleged Fourteenth Amendment equal protection violations

against Officer Savelle and Officer Jones, the § 1983 supervisory and failure-to-train

claims against Officer Jones, and the malicious prosecution claims against Officer

Sellers. In addition, the Town’s motion to dismiss, doc. 9, is due to be granted in

full. The Order in accordance with this Memorandum Opinion follows.

DONE the 15th day of October, 2021.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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