Moncrief v. City of Montgomery (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JANICE MONCRIEF, as Administratrix )

of the Estate of Gary Moncrief, deceased, )

and in her individual capacity, BENITA )

MONCRIEF, and TAMARA ACREE, )

)

Plaintiffs, )

)

v. ) CASE NO. 2:23-cv-331-JTA

) (WO)

CITY OF MONTGOMERY, a municipal )

corporation of the State of Alabama, )

ERNEST N. FINLEY, JR., in his )

individual capacity as former Police Chief )

of the City of Montgomery Police )

Department, CHRISTOPHER BROWN, )

and JAMES ALBRECHT )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion to Dismiss Amended Complaint. (Doc. No.

34.) For the reasons stated below, the motion will be granted in part and denied in part.

I. JURISDICTION AND VENUE

The parties have consented to the exercise of dispositive jurisdiction by a magistrate

judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 22, 23.) This Court has subject matter

jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343, and

supplemental jurisdiction over their state law claims pursuant to 28 U.S.C. § 1367. The

parties do not contest personal jurisdiction or venue, and there are adequate allegations to

support both. See 28 U.S.C. § 1391.

II. STANDARD OF REVIEW

When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the court takes the facts alleged in the complaint as true and construes them in

the light most favorable to the plaintiff. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–

22 (11th Cir. 2012). To avoid dismissal, the complaint must “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

facially plausible “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, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). That is, “[f]actual

allegations must be enough to raise a right to relief above the speculative level on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (internal citations omitted). While Federal Rule of Civil

Procedure 8(a) “does not require ‘detailed factual allegations’... it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555). A complaint is insufficient if it “offers labels and

conclusions or a formulaic recitation of the elements of a cause of action,” or if it “tenders

naked assertions devoid of further factual enhancement.” Id. (internal quotations omitted)

(quoting Twombly, 550 U.S. at 555, 557). In short, a complaint must provide a “‘plain

statement possess[ing]’ enough heft to ‘show that the pleader is entitled to relief.’”

Twombly, 550 U.S. at 557 (internal quotations omitted) (quoting Fed. R. Civ. P. 8(a)(2)).

III. PROCEDURAL HISTORY

This case arises out of an incident on May 18, 2021, in which Defendants James

Albrecht and Christopher Brown, police officers for the City of Montgomery, used deadly

force by firing into a vehicle that was occupied by four people. In the incident, one of the

occupants, Gary Moncrief, died due to a gunshot wound. On May 17, 2023, Plaintiff Janice

Moncrief, Gary Moncrief’s mother and next of kin who sues in both her representative and

individual capacities, along with Plaintiffs Benita Moncrief and Tamara Acree, filed this

suit against the two officers,1 the City of Montgomery (“the City”), and Ernest N. Finley,

in his individual capacity as a former police chief of the City of Montgomery Police

Department. (Doc. No. 1.)

On November 28, 2023, Plaintiffs filed an amended complaint.2 (Doc. No. 29.)

Plaintiffs assert the following claims in the amended complaint:

• Count I: a claim pursuant to 42 U.S.C. § 1983 against Officers Brown and Albrecht

for unlawful use of excessive force;

• Count II: a claim pursuant to 42 U.S.C. § 1983 against the City and Finley for

unlawful use of excessive force;

1 Plaintiffs originally filed suit against the two officers under fictitious names. (Doc. No. 1.) Prior

to the filing of the amended complaint, the Court allowed a period of limited discovery for

Plaintiffs to discover the names of the two officers. (Docs. No. 28, 29.) Moncrief v. City of

Montgomery, No. 2:23-CV-331-JTA, 2023 WL 5444654 (M.D. Ala. Aug. 23, 2023).

2 Defendants consented in writing to the filing of the amended complaint. (Doc. No. 29-4.)

• Count III: a claim pursuant to 42 U.S.C. § 1983 against the City for failure to

properly train and supervise;

• Count IV: a claim pursuant to 42 U.S.C. § 1983 against Finley for failure to properly

train and supervise;

• Count V: a state law claim against the City for wrongful death; and

• Count VI: a state law claim against Officers Brown and Albrecht for negligence.

On November 14, 2023, Defendants filed a motion to dismiss.3 (Doc. No. 34.)

Plaintiffs filed a brief in response to the motion to dismiss, and Defendants filed a reply.

(Docs. No. 37, 40.) The motion to dismiss is ripe for disposition.

IV. FACTS4

In the summer of 2020, “[i]n the wake of nationwide and local police brutality

protests,” Montgomery’s Mayor, Stephen Reed, vowed to implement eight

recommendations (the “8 Can’t Wait” policies) designed to curb unnecessary injuries and

deaths at the hands of police, including “banning choke and strangleholds, requiring de-

escalation, requiring a warning before shooting, exhausting all alternatives before using

deadly force, implementing a duty for officers to intervene when unnecessary force is used,

banning shooting at moving vehicles, requiring a use of force continuum, and requiring an

3 Additionally, on November 30, 2023, Officers Christopher Brown and James Albrecht filed

answers to the amended complaint. (Docs. No. 38, 39.)

4 The facts set forth herein are taken from Plaintiffs’ amended complaint and supporting exhibits

attached thereto (Doc. No. 29), and are construed in the light most favorable to Plaintiffs. See

Resnick, 693 F.3d at 1321–22, 1324–25 (discussing the standard of review in an appeal from an

order granting a motion to dismiss for failure to state a claim upon which relief can be granted).

officer to report each time they use or threaten deadly force.” (Doc. No. 29 at 4-5 ¶ 15.)

Mayor Reed was quoted saying, “[t]hese were some things [my staff] thought we should

look into, and I agreed with it, and then I spoke with [Finley] and [MPD] were already

probably doing 75 to 80% of [the recommendations] . . . [s]o they were all for it. We wanted

to send a message by signing on to that.” (Id. at 5 ¶ 16.) According to the same reporting,

Finley “said during a virtual town hall meeting with [Mayor Steven Reed] that the

department currently follows seven of the eight recommendations…. [T]he only

recommendation not in place at the department was the duty to intervene, a point they’d be

sure to correct.” (Id. at 5 ¶ 17.)

At approximately 8:15 p.m. on May 18, 2021, Plaintiffs went to the Microtel Hotel

in a vehicle driven by Benita Moncrief to pick up Gary Moncrief.5 (Id. at 6 ¶¶ 20-21.)

Tamara Acree was in the front passenger seat and Janice Moncrief was in the back seat.

(Id.) After circling the parking lot once, Benita Moncrief parked in the second parking

space on the right side of the lobby entrance. (Id. at 6 ¶ 22.) At that time, Officers Brown

and Albrecht were parked where they could see the front door of the hotel and the sole

entrance/exit to the parking lot. (Id. at 6 ¶ 23.) Officer Brown was in the driver seat of the

police vehicle and Officer Albrecht was in the front passenger seat. (Id.)

Approximately one minute later, at 8:16 p.m., Gary Moncrief exited the hotel and

entered Plaintiffs’ car, sitting in the back seat on the driver’s side as the police vehicle

approached. (Id. at 6 ¶¶ 24-26.) Officer Brown parked the police vehicle immediately

5 Plaintiffs indicate that Gary Moncrief was suspected of kidnapping. (Doc. No. 29 at 4 n.1.)

behind Plaintiffs’ vehicle, blocking Plaintiffs’ vehicle so that it could not move. (Id. at 6 ¶

26.)

Seconds later, Officer Albrecht exited the police vehicle holding a rifle. (Id. at 6-7

¶¶ 27-28.) Officer Brown opened his door, and Benita Moncrief opened her door and exited

the car with her hands up. (Id.) Without provocation,6 Officer Albrecht fired twice while

backing up, then began firing into the passenger side of Plaintiffs’ vehicle. (Id. at 7 ¶ 28;

Doc. No. 29-1 at 1-4.) One of the bullets struck Gary Moncrief in the head, causing his

death. (Id. at 4 ¶ 13; Doc. No. 29-1 at 4.) One second after Officer Albrecht opened fire,

Gary Moncrief slumped to his right, toward his mother, as Benita Moncrief ran toward the

hotel lobby. (Doc. No. 29 at 7 ¶ 29.) Janice Moncrief and Tamara Acree narrowly avoided

being struck by bullets. (Id.) Officer Albrecht then ran behind the police vehicle on the

driver’s side. (Id. at 7 ¶ 30.) Soon thereafter, the officers removed Janice Moncrief and

Tamara Acree from Plaintiffs’ vehicle, handcuffed them, and separated them. (Id. at 7 ¶

31.)

Surveillance camera footage of the incident contains no evidence that Plaintiffs

actively resisted or threatened the officers before the shooting or that the officers faced any

6 Defendants dispute the allegation that Gary Moncrief died of a gunshot wound inflicted without

provocation by one of the officers. They argue instead that he shot himself and the officers fired

in response to hearing Gary Moncrief’s gun discharge. However, as Defendants recognize, in

considering a motion to dismiss, “the Court accepts the factual allegations in the complaint as true

and construes them in the light most favorable to” Plaintiffs. (Doc. No. 34 at 3 (Defendants’ motion

to dismiss (citing Hill v. White, 321 F.3d 1334 (11th Cir. 2003)).) Assuming they are true, the

allegations in the complaint, construed in the light most favorable to Plaintiffs, are sufficient to

support the conclusion that Gary Moncrief’s death was caused by a bullet fired without

provocation by Officer Albrecht, who was acting in concert with Officer Brown. (Doc. No. 29 at

4 ¶ 13; Doc. No. 29 at 7 ¶ 29; Doc. No. 29-1 at 4.)

articulable threat before they began firing. (Doc. No. 29 at 7-8 ¶¶ 32-34.) Nevertheless,

Plaintiffs allege, Officers Brown and Albrecht opened fire without provocation pursuant to

an unspecified custom and policy of the Montgomery Police Department, which was

known and ratified by Finley.7 (Id. at 8 ¶ 35; Doc. No. 29-1 at 1-4.)

After the shooting, Finley, who was then chief of Montgomery police, stated to local

reporters that Officers Brown and Albrecht and Gary Moncrief “exchanged gunfire after

the police confronted the suspect.” (Doc. No. 29 at 4 ¶ 14.)

“On May 26, 2021, eight days after the officer-involved shooting, Montgomery

County District Attorney Daryl Bailey and Montgomery City Mayor Steven Reed held an

almost 45-minute press conference purporting to update the community on the

investigation into the shooting.” (Id. at 5 ¶ 18.) At the press conference, the Montgomery

County District Attorney “purported to describe the events of the officer-involved

shooting; however, the source of [his] information is unclear.” (Id. at 5 ¶ 19.) Finley and

the state investigating agency, the State Bureau of Investigation, did not participate in the

press conference. (Id. at 5 ¶ 18.)

V. DISCUSSION

A. Count I

7 In addition, in response to the motion to dismiss, Plaintiffs argue that Officers Albrecht and

Brown violated the City’s policing policies that required “de[-]escalation, a warning before

shooting, exhausting all alternatives before using deadly force, banning shooting at moving

vehicles, requiring a use of force continuum, and requiring an officer to report each time they use

or threaten deadly force.” (Doc. No. 37 at 5.)

Officers Brown and Albrecht argue that Plaintiffs’ § 1983 claim against them for

unlawful use of excessive force is due to be dismissed due to immunity afforded by

Alabama state law pursuant to Ala. Code 1975 § 6-5-338, as well as Ex parte Cranman,

792 So. 2d 392 (Ala. 2000) and its progeny.8 (Doc. No. 34 at 4-5.) However, Officers

Brown and Albrecht do not explain9 how state-granted immunity applies to Plaintiffs’

§ 1983 claim of excessive force against them, a claim that arises under federal

constitutional and statutory law. Cf. Martinez v. Hudson, No. 2:17-CV-00256-RDP, 2017

8 In their motion to dismiss, Officers Brown and Albrecht do not assert that Count I is due to be

dismissed on grounds of federal qualified immunity principles. Qualified immunity is not identical

to (but shares some similarities with) Alabama state agent immunity under Cranman and Alabama

state statutory discretionary function immunity. See Martinez v. Hudson, No. 2:17-CV-00256-

RDP, 2017 WL 2687472, at *6 (N.D. Ala. June 22, 2017) (noting some differences); see also

Hunter v. Leeds, 941 F.3d 1265 (11th Cir. 2019) (analyzing whether qualified immunity applied

to § 1983 claims, analyzing whether state law discretionary function/state agent immunity applied

to state law claims, and noting the similarities between the two different types of immunity); Brown

v. City of Huntsville, Ala., 608 F.3d 724 (11th Cir. 2010) (applying federal qualified immunity

principles to § 1983 excessive force claims and applying Alabama’s statutory and Cranman

immunity principles to state-law claims). Cf. Jeancharles v. Augustus, No. 13-60723-CIV, 2014

WL 4824371, at *3 (S.D. Fla. Sept. 26, 2014) (“Qualified immunity is a federal concept that

applies only to federal claims brought under [§] 1983.”).

9 In their brief in support of the motion to dismiss, Defendants include a remark that “[i]t is

important to note that state agent immunity isn’t limited to a claim of negligence.” (Doc. No. 34

at 5 (sic).) However, Defendants do not affirmatively assert that state law immunity applies to

§ 1983 claims, explain the mechanics of applying state law immunity to Plaintiffs’ § 1983 claims,

or even cite authority to the effect that state law immunity is a bar to § 1983 claims. In support of

their comment that “state agent immunity is” not “limited to claims of negligence,” Defendants

cite a passage from Ex Parte City of Montgomery, 272 So. 3d 155, 168 (Ala. 2018), which is a

block quote from Ex parte Randall, 971 So. 2d 652, 664 (Ala. 2007). That block quote, as used in

both Ex parte City of Montgomery and Randall, related to the applicability of state law immunity

to state law claims other than negligence claims. Ex parte City of Montgomery, 272 So. 3d at 158,

168 (noting that the plaintiff’s claims were premised on negligence, wantonness, and respondeat

superior); Randall, 971 So. 2d at 661 (outlining the claims and defenses, clearly indicating that the

defendant “assert[ed] State-agent immunity as a defense” to the plaintiffs’ state law claims for

fraud and negligent and wanton infliction of wrongful death).

WL 2687472, at *6 (N.D. Ala. June 22, 2017) (“Defendants have not cited (and the Court

has not found) any authority to support the proposition that Alabama statutory

discretionary-function immunity applies to federal § 1983 claims.”). District courts faced

with this issue have concluded that “[s]tate-law immunity defenses have no bearing on

liability under § 1983. Rather, federal law controls whether an individual is immune from

§ 1983 liability.” Williams v. City of Abbeville, No. 1:12-CV-263-WKW, 2013 WL

1117297, at *6 (M.D. Ala. Mar. 18, 2013) (rejecting an argument that state-agent immunity

under Alabama law entitled the defendant police officer to immunity from a § 1983

malicious prosecution claim); see also Martinez, 2017 WL 2687472, at *6 (explaining that,

pursuant to Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1045

(11th Cir. 2011) and § 1988(a), the court likely would conclude that “Alabama’s

discretionary-function immunity is inapplicable to a § 1983 claim”); J.P.M. v. Palm Beach

Cnty. Sch. Bd., No. 10-80473-CIV, 2011 WL 13281800, at *3 (S.D. Fla. Mar. 29, 2011)

(rejecting the application of Florida statutory state agent immunity on grounds that “state-

law immunities are irrelevant in § 1983 cases”). Cf. Howlett By & Through Howlett v.

Rose, 496 U.S. 356, 375 (1990) (“If the [Florida] District Court of Appeal meant to hold

that governmental entities subject to § 1983 liability enjoy an immunity over and above

those already provided in § 1983, that holding directly violates federal law. The elements

of, and the defenses to, a federal cause of action are defined by federal law.”); Cranman,

792 So. 2d 392, 405 (“[A] State agent shall not be immune from civil liability in his or her

personal capacity … when the Constitution or laws of the United States … require

otherwise.”).

Because it does not appear that Alabama state statutory and Cranman immunity

principles apply to § 1983 claims, and because Officers Brown and Albrecht have not

indicated why this Court should conclude otherwise, the Court concludes that state agent

immunity does not shield Officers Brown and Albrecht from liability in a § 1983 excessive

force claim brought pursuant to federal law. Consequently, the motion to dismiss is due to

be denied in relation to Count I.

B. Count II and Count IV

Finley argues that Counts II and IV are due to be dismissed against him10 on grounds

of qualified immunity. (Doc. No. 34 at 6-8.) “Qualified immunity ‘shields officials from

civil liability so long as their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”’” Odom v. Boisvert,

No. 23-11226, 2024 WL 3649048, at *2 (11th Cir. Aug. 5, 2024) (unreported) (quoting

Crocker v. Beatty, 995 F.3d 1232, 1239 (11th Cir. 2021) (quoting in turn Mullenix v. Luna,

577 U.S. 7, 11 (2015))). The Court employs a burden-shifting analysis to the issue of

qualified immunity. A defendant seeking dismissal on grounds of qualified immunity “first

must prove that he was ‘acting within his discretionary authority.’” Id. (quoting Piazza v.

Jefferson County, 923 F.3d 947, 951 (11th Cir. 2019) (quoting in turn Skop v. City of

Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007))). If the defendant satisfies this initial

burden, then “the burden shifts to the plaintiff to prove that ‘(1) the officer violated a

10 Defendants do not argue that Count II is due to be dismissed to the extent that it is asserted

against the City.

constitutional right and (2) the right was clearly established at the time of the alleged

violation.’” Id. (quoting Piazza, 923 F.3d at 951).

Finley points out that, to the extent Plaintiffs may have any § 1983 claim against

him under Count II, that claim rests on their allegations that he is liable to them for

(1) … creat[ing], maintain[ing], or implement[ing] a policy or custom under

which individuals being detained or arrested would be subject to the use of

excessive and unreasonable force and (2) … [being] deliberately indifferent

in supervising and training Defendant [Brown] and Defendant [Albrecht].

(Doc. No. 29 at 10 ¶ 49.)

Similarly, Finley points out that, to the extent Plaintiffs may have any § 1983 claim

against him under Count IV, that claim rests on their allegation that he is liable to them for

breaching a known duty “to train and supervise his agents/employees adequately”

“regarding the use of excessive force.” (Id. at 29 ¶¶ 61-62.)

Finley argues that insofar as he had any responsibility for creating, maintaining, and

implementing police department policies or customs, or any responsibility for the training

and supervision of police officers, those responsibilities were inherently wholly within his

discretionary authority and duties as chief of police. (Doc. No. 34 at 6-8.) See Harbert Int’l,

Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (“To establish that the challenged

actions were within the scope of his discretionary authority, a defendant must show that

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

the scope of his authority.”).

In their response brief (Doc. No. 37 at 6-7), Plaintiffs do not disagree with Finley’s

argument; nor do they contend that Finley failed to meet his initial burden to demonstrate

that he was “acting within his discretionary authority.’” Piazza, 923 F.3d at 951.

Accordingly, for purposes of analyzing Finley’s qualified immunity defense, the Court

concludes that Finley met his initial burden. See Holloman ex rel. Holloman v. Harland,

370 F.3d 1252, 1266 (11th Cir. 2004) (“[T]o pass the first step of the discretionary function

test for qualified immunity, the defendant must have been performing a function that, but

for the alleged constitutional infirmity, would have fallen with his legitimate job

description.”).

In response to Finley’s qualified immunity defense, Plaintiffs offer only the

following paragraph,

Qualified immunity is a burden-shifting principle. “The qualified immunity

analysis thus shifts the burden to [Plaintiffs], who must show that

[Defendant] does not merit qualified immunity.[“] Morton v. Kirkwood, 707

F.3d 1276, 1281 (11th Cir. 2013). “Qualified immunity does not apply where

the facts show that the official violated the plaintiff’s constitutional rights

and where the law established those rights at the time of the alleged

misconduct.” Pearson v. Callahan, 555 U.S. 223, 232[] (2009). As explained

in the analysis above, the Plaintiffs’ constitutional rights were clearly

established law at the time of the shooting, and the Defendants acted with

deliberate indifference; thus, Counts II and IV of the Plaintiffs’ Complaint

should not be dismissed.

(Doc. No. 37 at 7.)

Although Plaintiffs acknowledge that the burden shifted to them, their response is

cursory and inadequate. Plaintiffs argue that “the analysis above” establishes that

“Defendants” violated Plaintiffs’ clearly established rights, but nothing in the quoted

paragraph or “the analysis above” specifies, beyond repeating the conclusory allegations

of the complaint, how Finley violated Plaintiffs’ clearly established rights through

unspecified policies he personally promulgated or through his provision of allegedly

inadequate police training. In “the analysis above,” (i.e., the argument at Doc. No. 37 at 6),

Plaintiffs argue that supervisory liability attaches where there is a causal connection

between the supervisor’s conduct and the action of the subordinate’s unconstitutional

conduct. (Doc. No. 37 at 6 (citing Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1236

(11th Cir. 2010)).) A causal connection can be established in several ways, including

establishing that “‘“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.”’” (Id. (quoting Harper,

592 F.3d at 1236 (quoting in turn Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003),

abrogated on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010))).)

Plaintiffs argue that four cases provide evidence of a history of widespread abuse

that would have put Finley on notice of the need to correct the abuse. (Id.) Yet, Plaintiffs

fail to explain11 how the four cases they cite establish a historical pattern of widespread

11 The four cases Plaintiffs reference are listed (without commentary) in a footnote to the factual

allegations in the amended complaint. (Doc. No. 29 at 8 n.6.) Plaintiffs do not discuss how the

facts of the four cases establish a historical pattern that would have put Finley on notice of the

need to implement policy and train officers to avert the particular constitutional deprivation at

issue in this case. Further, those cases are not so factually or temporally related to this one that

such an explanation would be unnecessary. Gunn v. City of Montgomery, Alabama, et al., Case

No. 2:16-CV-557-WKW-JTA, involved allegations that, in the early morning hours of February

25, 2016, a Montgomery city police officer conducted a “stop and frisk” of an unarmed citizen

who was walking along the street, then chased, tazed, and shot the citizen when the citizen fled,

killing him. Gunn v. City of Montgomery, Alabama, Case No. 2:16-CV-557-WKW, 2018 WL

1740933, at *2 (M.D. Ala. Apr. 11, 2018) (Watkins, J.); see also Gunn v. City of Montgomery,

Alabama, No. 2:16-CV-557-WKW, 2018 WL 1740933, at *2 (M.D. Ala. Apr. 11, 2018). Pettaway

v. Barber, Case No. 2:19-cv-8-ECM-JTA, which is currently on appeal, involves allegations that,

on July 8, 2018, Montgomery police officers unconstitutionally used a K-9 to attack a burglary

suspect who was purportedly hiding in a vacant house, then failed to render first aid to prevent the

suspect from bleeding to death from the wounds the dog inflicted. See Pettaway v. Barber, 645 F.

Supp. 3d 1269 (M.D. Ala. 2022). Canty v. City of Montgomery, Case No. 2:20-cv-332-SMD,

involved allegations that the Montgomery police department harassed and invaded the privacy of

a Montgomery police officer because she divorced and filed domestic violence charges against her

abuse that would put Finley on notice that any particular policy or training was needed to

prevent officers from engaging in the alleged conduct at issue in this case, i.e., firing,

unprovoked, into a stationary vehicle that contained individuals who were not giving any

indication of fleeing, fighting, or resisting arrest. Hence, Plaintiffs’ argument is unavailing

to overcome Finley’s qualified-immunity showing because Plaintiffs failed to establish a

causal connection between Finley’s conduct and the conduct of Officers Albrecht and

Brown.

Because Plaintiffs failed to carry their burden to establish that Finley violated their

constitutional rights, Finley is entitled to qualified immunity on Counts II and IV.

C. Count III

The City argues that it is entitled to dismissal of Plaintiffs’ § 1983 claim for failure

to properly train and supervise Officers Albrecht and Brown. (Doc. No. 34 at 8-10.) “[A]

municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell

v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Rather, “[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 W. Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir.

ex-husband, who was a friend of Finley’s and a former officer of the Montgomery police

department. (Doc. No. 1 in Case No. 20-cv-332.) Hill v. City of Montgomery, Case No. 20-cv-116-

KFP, which is also currently on appeal, was dismissed on summary judgment on several grounds,

including that no constitutional rights were violated and certain defendants were entitled to

qualified and state-agent immunity. Hill v. City of Montgomery, Alabama, No. 2:20-CV-116-KFP,

2022 WL 17672617, at *16 (M.D. Ala. Dec. 14, 2022). Hill involved an incident that occurred on

February 21, 2018, in which police allegedly attempted to stop and question an individual

suspected of shooting another person, pursued the suspect after the suspect fired at one of the

officers (hitting the officer in the foot), and ultimately fired at the suspect during the pursuit, killing

him. See id.

2009). Therefore, to prevail on a § 1983 claim against a city, “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)

(citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

As Plaintiffs correctly argue, they can establish the existence of an “official policy”

by “identify[ing] either (1) an officially promulgated [City] policy or (2) an unofficial

custom or practice of the [City] shown through the repeated acts of a final policymaker for

the [City].” Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (citations

omitted). Plaintiffs provide two sentences of argument to establish the source of their

allegation that a municipal policy existed pursuant to which Officers Albrecht and Brown

opened fire on Plaintiffs:

The same analysis applied above to Defendant Ernest N. Finley, Jr.[,] applies

to the actions of the Defendant municipality the City of Montgomery. As was

stated in the Plaintiffs’ complaint, both the City of Montgomery and

Defendant Ernest N. Finley, Jr., sought to implement or further implement

policies relating to the use of excessive force.

(Doc. No. 37 at 9.)

The problem with the first sentence of Plaintiffs’ argument is, assuming “the same

argument” they used to attempt to establish the existence of a policy promulgated by Finley

applies equally to establishing the municipality’s policy, that argument fails for the reasons

stated in Section V.B. of this Memorandum Opinion and Order. The problem with the

second sentence is, to the extent the complaint alleges that Finley and the City sought to

implement policies relating to the use of excessive force, the only specific policies

referenced in the complaint are the “8 Can’t Wait” policies designed to prevent unlawful

police violence, policies Plaintiffs do not criticize.12 And, as stated in the first sentence of

their argument, Plaintiffs make clear that, to the extent they make allegations in their

complaint of the existence of an unspecified municipal policy upon which they base their

claims, they rely on their arguments against Finley to establish the existence of that

municipal policy (i.e., they contend that the City lacked an appropriate policy to remediate

a known history of unconstitutional acts by police officers). Again, those arguments are

unavailing for the reasons stated in Section V.B. of this Memorandum Opinion and Order.

Accordingly, the City is entitled to dismissal of Count III.

D. Count V

12 Although ambiguous on this point, when viewed in a light that is generously favorable to

Plaintiffs, their complaint indicates that, by the time of the shooting, the City had adopted seven

“8 Can’t Wait” policies, and was in the process of adopting the eighth, which requires officers to

intervene if another officer is committing an unconstitutional act. (Doc. No. 27 at 5 ¶ 17.) Plaintiffs

do not at any point specifically allege in their complaint or argue in their response to the motion

to dismiss that the lack of the eighth “8 Can’t Wait” policy forms the basis of their claims. It is not

the Court’s duty to flesh out all possible arguments for Plaintiffs when considering a motion to

dismiss, nor would it be appropriate for the Court to attempt to do so in the adversarial system

upon which the federal judiciary operates. See McCall Est. of McCall v. SSC Montgomery S. Haven

Operating Co., LLC, No. 2:14-CV-588-MHT-PWG, 2015 WL 13603823, at *5 (M.D. Ala. Aug.

6, 2015) (“In keeping with the maxim that ‘the onus is upon the parties to formulate arguments,’

the motion to dismiss is due to be denied.” (quoting Resolution Trust Corp. v. Dunmar Corp., 43

F.3d 587, 599 (11th Cir. 1995)). Further, the Court notes that the amended complaint does not

contain allegations that the “8 Can’t Wait” policies were being adopted to address specific

problems particular to the Montgomery police department of which the City and Finley were

aware; rather, the amended complaint indicates the City adopted the “8 Can’t Wait” policies “to

send a message” “[i]n the wake of nationwide and local police brutality protests in the summer of

2020.” (Doc. No. 29 at 4 ¶¶ 15-16.)

If true, the allegations in the complaint, construed in the light most favorable to

Plaintiffs, support the conclusion that Gary Moncrief’s death was caused by a bullet fired

by Officer Albrecht, who was acting in concert with Officer Brown. (Doc. No. 29 at 4 ¶

13; Doc. No. 29 at 7 ¶ 29; Doc. No. 29-1 at 4.) Yet, the City argues that it cannot be liable

for Gary Moncrief’s death because Gary Moncrief died from a self-inflicted gunshot

wound to the head. (Doc. No. 34 at 10.) In support of this argument, the City refers to Gary

Moncrief’s death certificate. While acknowledging on a motion to dismiss13 the Court is

ordinarily “restricted to the four corners of the complaint,”14 the City contends that the

death certificate constitutes “[e]xtrinsic evidence [that] may be considered if it is central to

the Plaintiff[s’] claim and if it[]s authenticity is not challenged.” (Doc. No. 34 at 10 (citing

ThermoLife Int’l, LLC v. Hi-Tech Pharms., Inc., No. 1:15-CV-00892-ELR, 2018 WL

7077163, at *2 (N.D. Ga. Oct. 2, 2018), report and recommendation adopted, No. 1:15-

13 When a party introduces matters outside the pleadings on a Rule 12(b)(6) motion to dismiss, the

Court may treat the motion as if it were a motion for summary judgment under Rule 56. Fed. R.

Civ. P. 12(d). In doing so, the court must give the parties “a reasonable opportunity to present all

the material that is pertinent to the motion,” Fed. R. Civ. P. 12(d), and “such a conversion requires

notice to the parties and an opportunity for mutual discovery.” Adinolfe v. United Techs. Corp.,

768 F.3d 1161, 1168 (11th Cir. 2014). Defendants have conspicuously avoided asking the Court

to convert the motion to one for summary judgment. Any such conversion will unnecessarily

interpose significant delay while the parties conduct extensive discovery from both fact and expert

witnesses as to Gary Moncrief’s cause of death, as well as discovery related to pertinent records,

such as police records and Gary Moncrief’s medical records. Furthermore, on this record, there is

no reason to conclude that such discovery may eliminate the factual dispute over the cause of

death, as would be necessary to support a motion for summary judgment. Therefore, the Court, in

its discretion, will not convert the motion to dismiss into a motion for summary judgment.

14 See Resnick, 693 F.3d at 1321–22, 1324–25 (discussing the appropriate standard of review for

considering a motion to dismiss).

CV-00892-ELR, 2019 WL 1225097 (N.D. Ga. Jan. 17, 2019) (citing in turn SFM Holdings,

Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); Trustmark Ins. Co.

v. ESLU, Inc., 299 F.3d 1265, 1267-68 (11th Cir. 2002)).)

The Court cannot even begin to consider the death certificate as grounds for

dismissal because the City failed to submit the death certificate as an exhibit.15 Further,

assuming for the sake of the argument that the death certificate indicates “Gary Moncrief

died from a self-inflicted gunshot wound to the head” (Doc. No. 34 at 10), that still would

not entitle the City to dismissal of the wrongful death claim at this stage of the litigation.

In Thermolife, upon which the City relies, the court concluded that it would be

inappropriate to consider extrinsic materials the defendants had submitted on a motion to

dismiss because “the facts asserted in those documents could be disputed by the [p]laintiff,

if given the opportunity.” ThermoLife, 2018 WL 7077163, at *4; see also Kennedy v. Dep’t

of Transp., No. 3:22-CV-645-RAH-JTA, 2024 WL 1602846, at *4 n.2 (M.D. Ala. Feb. 8,

2024), report and recommendation adopted, No. 3:22-CV-645-RAH, 2024 WL 965612

(M.D. Ala. Mar. 6, 2024) (noting the impropriety of granting a Rule 12(b)(6) motion in

reliance on the contents of documents that the plaintiff had attached to his complaint while

he simultaneously contested the veracity of those documents (citing Hoefling v. City of

Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) and Gross v. White, 340 F. App’x 527, 534

(11th Cir. 2009))). Plaintiffs’ response to the motion to dismiss demonstrates that, while

15 The City states in its motion that the death certificate is “attached” to the motion “as Exhibit 2.”

No exhibits are attached to the City’s motion.

Janice Moncrief may not dispute the authenticity of the death certificate, she most certainly

disputes the reliability of the conclusions stated therein and plans to do so even more

vigorously after an opportunity for discovery. (Doc. No. 37 at 10-13; Docs. No. 37-1

through 37-3.) Moreover, the death certificate itself is not “central” to the wrongful death

claim in the sense that it could not serve as grounds for a Rule 12(b)(6) dismissal of that

claim. See Sprengle v. Smith Mar. Inc., 660 F. Supp. 3d 1337, 1351 (M.D. Fla. 2023)

(collecting cases and explaining that the incorporation-by-reference doctrine “is

inapplicable when the plaintiff neither references nor relies upon the extrinsic document in

the complaint…. [n]or does it apply unless the documents are so central to the claim that

they serve as a basis for the complaint, such that the plaintiff must have been aware of their

existence”).

For these reasons, the Court will not consider the death certificate’s alleged contents

at this stage of the litigation. Because the City’s motion to dismiss the wrongful death claim

is wholly reliant on the death certificate to contest Gary Moncrief’s cause of death, the City

is not entitled to a Rule 12(b)(6) dismissal of the wrongful death claim.

E. Count VI

In Count VI of the complaint, Plaintiffs allege that Officers Brown and Albrecht

negligently breached “a duty to provide ordinary care to all Plaintiffs” when they

“commit[ed] such horrendous actions against the Plaintiffs, including, but not limited to,

shooting at close range into the vehicle that they occupied, using deadly force without

warning, and failing to attempt an alternative to the use of deadly force.” (Doc. No. 29 at

14.) Officers Brown and Albrecht argue that Count VI is due to be dismissed due to

discretionary function immunity afforded by Ala. Code 1975 § 6-5-338 and state agent

immunity afforded by Ex parte Cranman, 792 So. 2d 392 (Ala. 2000) and its progeny.

(Doc. No. 34 at 4-5.) “Cranman’s test for state-agent immunity also governs whether law

enforcement officers are entitled to statutory, discretionary-function immunity under § 6–

5–338(a).” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1255 (11th Cir. 2010) (citing

Hollis v. City of Brighton, 950 So. 2d 300, 307–09 (Ala. 2006)); see also Hunter v. Leeds,

941 F.3d 1265, 1283 (11th Cir. 2019) (noting that “[t]he restatement of state-agent

immunity set out by the Alabama Supreme Court in [Cranman],” as modified by Hollis,

“governs whether the [police] officers are entitled to immunity under § 6–5–338(a)” (citing

Brown v. City of Huntsville, 608 F.3d 724, 741 (11th Cir. 2010) (citing in turn Ex parte

City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005)))).

In asserting the defense of state agent and discretionary function immunity, Officers

Brown and Albrecht bear the initial burden of demonstrating that they were “acting within

the ambit of [their] discretionary functions” as state actors when they fired into Plaintiffs’

vehicle. Grider, 618 F.3d at 1256. Section 13A-3-27, Ala. Code 1975, provides that “[a]

peace officer is justified in using deadly physical force upon another person when and to

the extent that he reasonably believes it necessary in order … [t]o make an arrest for a

felony or to prevent the escape from custody of a person arrested for a felony, unless the

officer knows that the arrest is unauthorized.” Ala. Code 1975 § 13A-3-27(b). Plaintiffs do

not appear to dispute that, pursuant to § 13A-3-27(b), Officers Brown and Albrecht were

acting within the scope of their authority to use deadly force to apprehend Gary Moncrief,

who was suspected of kidnapping. (Doc. No. 37 at 5 (Plaintiffs’ arguments that Officers

Brown and Albrecht “were not acting in their discretionary duties towards the three

passengers [sic] that survived the encounter” because “none of the … situations” outlined

in § 13A-3-27 for justified use of deadly force “apply to the three passengers [sic]”).)

Plaintiffs do not explain how the presence of the three survivors of the shooting somehow

removes the use of deadly force against Gary Moncrief from within the ambit of the

officers’ discretionary functions otherwise allowed under § 13A-3-27. Accordingly, for

purposes of analyzing the motion to dismiss, the Court will presume that the use of deadly

force fell within the ambit of the two officers’ discretion to use deadly force they

reasonably believed necessary to make a valid arrest for a felony.

When evaluating the applicability of state agent and discretionary function

immunity, once a defendant police officer makes the requisite showing that the challenged

conduct falls within the ambit of his or her discretion, the burden shifts “to the plaintiff to

show ‘bad intent’—that the officer acted willfully, maliciously, fraudulently, in bad faith,

or beyond his or her authority—in order to defeat the officer’s discretionary-function” or

state-agent immunity. Grider, 618 F.3d at 1255-56. That is, “Plaintiffs can pierce both

state-agent immunity and discretionary-function immunity by showing that Defendants

[Brown and Albrecht] acted ‘willfully, maliciously, fraudulently, in bad faith, beyond his

or her authority, or under a mistaken interpretation of the law.’” Id. (quoting Hollis, 950

So. 2d at 307).

Plaintiffs argue that, pursuant to Montgomery Police Department policy as

confirmed to the public by Mayor Reed and Finley, Officers Brown and Albrecht were

barred from shooting into an occupied vehicle when that vehicle was blocked in and could

not move, when deadly force was not necessary to stop a fleeing felon, and when the

officers had no reason to believe that their safety or the safety of others was endangered.

(Doc. No. 37 at 3-6.) In response, Officers Brown and Albrecht do not deny that shooting

into an occupied, stationary vehicle without provocation or reason to fear danger was

unauthorized under Montgomery Police Department policy. Nor do they argue that the

shooting was justified by the need to stop a fleeing felon. Instead, they argue that they had

reason to believe that they were in danger (or that others were in danger) because, before

opening fire, they heard a gunshot that later turned out to have been Gary Moncrief

shooting himself in the head. (Doc. No. 40 at 2-3.)

The problem with the officers’ argument is that it is premature and not appropriate

at the motion-to-dismiss stage. As discussed in more detail above in Section V.D. of this

Memorandum Opinion and Order, when evaluating a Rule 12(b)(6) motion to dismiss, the

Court takes the facts alleged in the complaint as true and construes them in the light most

favorable to Plaintiffs. Resnick, 693 F.3d at 1321–22. (See also Doc. No. 34 at 3

(Defendants’ motion to dismiss acknowledging the appropriate standard of review).) The

amended complaint, construed in the light most favorable to Plaintiffs, contains allegations

that, if true, are sufficient to establish that Gary Moncrief’s death was caused by a bullet

fired by Officer Albrecht, who was acting in concert with Officer Brown. To the extent

that there is an evidence-based, factual dispute whether Gary Moncrief fired a gun before

the officers opened fire, as explained in Section V.D., that issue is appropriately one for

resolution at a later stage of this litigation. It follows, then, that Officers Brown and

Albrecht are prematurely arguing that they are entitled to state agent and discretionary

function immunity on grounds that Montgomery Police Department policy permitted them

to open fire in response to Gary Moncrief first discharging a firearm.

Accordingly, state law immunity principles do not entitle Officers Brown and

Albrecht to dismissal of Plaintiffs’ negligence claim against them at this time.

VI. CONCLUSION

Accordingly, it is ORDERED that the motion to dismiss (Doc. No. 34) is

GRANTED IN PART and DENIED IN PART as follows:

1. The motion is DENIED as to Count I, Plaintiffs’ § 1983 excessive force claim

against Officers Brown and Albrecht.

2. The motion is GRANTED as to Count II only16 against Defendant Finley in

his individual capacity for unlawful use of excessive force in violation of

§ 1983.

3. The motion is GRANTED as to Count III, Plaintiffs’ § 1983 claim against

the City for failure to properly train and supervise.

4. The motion is GRANTED as to Count IV with respect to Plaintiffs’ § 1983

claim against Defendant Finley in his individual capacity for failure to

properly train and supervise;

5. The motion is DENIED as to Count V, Plaintiffs’ state law claim against the

City for wrongful death.

16 Defendants did not move for dismissal of the § 1983 claim against the City for unlawful use of

excessive force, which is alleged in Count II. That claim remains pending.

6. The motion is DENIED as to Count VI, Plaintiffs’ state law negligence claim

against Officers Brown and Albrecht.

DONE this 10th day of September, 2024.

JERWSHA T. ADAMS

TED STATES MAGISTRATE JUDGE

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