Perkins v. City of Decatur Alabama

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

CATRELA PERKINS,

Individually and as administrator of

the Estate of Stephen Clay Perkins,

deceased, et al.,

Plaintiffs, Case No. 5:23-cv-1685-CLM

v.

CITY OF DECATUR, ALABAMA,

et al.,

Defendants.

MEMORANDUM OPINION

Decatur police officer Bailey Marquette shot and killed Stephen Clay

Perkins in his front yard as a towing company tried to repossess Perkins’ truck.

Perkins’ widow, Catrela, and child, A.P., sue many individuals and entities

they claim contributed to Perkins’ death. Many defendants move to dismiss

Perkins’ claims:

• The shooting officer: Bailey Marquette (doc. 45);

• The non-shooting officers: Christopher Mukkadam, Joey Williams,

and Vance Summers (doc. 15);

• The towing company defendants: Allstar Recovery, LLC, Richie

Brady, and Caleb Combs (doc. 17); and,

• The City of Decatur (doc. 18).

The towing company defendants and the truck’s creditor (Pentagon Federal

Credit Union) also move to compel arbitration. (Docs. 52, 68, 73). The court will

rule on the arbitration motions in a future order and will not address the

towing company defendants’ motion to dismiss before ruling on arbitration in

case the court agrees that their claims must be arbitrated.

That leaves the motions filed by the City and the officers. For the reasons

explained within, the court GRANTS IN PART AND DENIES IN PART

Marquette’s motion and GRANTS the City’s and non-shooting officers’

motions. The court will dismiss those counts without prejudice, meaning the

court will give Perkins one chance to replead her claims—after the court rules

on the remaining motions to compel arbitration and motion to dismiss.

BACKGROUND

Because the defendants seek to dismiss Perkins’ case under Rule 12, the

court states the facts as Perkins pleads them in her Complaint and assumes

all of her alleged facts are true. See FED. R. CIV. P. 12(b)(6); Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984).

A. The repossession and shooting

Pentagon Federal Credit Union collects debts. Pentagon hired Allstar

Recovery to repossess Stephen Perkins’ truck.

Combs works for Allstar Recovery. On September 29, 2023, Combs alone

drove to Perkins house in Decatur to repossess Perkins’ truck. Perkins was

home, and he objected to Combs taking his truck.

So Combs left to get reinforcements. He returned with Brady, a fellow

Allstar Recovery employee, and four Decatur police officers: Marquette,

Mukkadam, Summers, and Williams. Rather than tell Perkins that they were

present, the four officers hid around Perkins’ house as Combs and Brady tried

to tow Perkins’ truck.

Perkins came out of his house to confront Combs. Perkins again objected

to Combs taking his truck. Officer Marquette then identified himself as a police

officer and ordered Perkins to the ground. Officer Marquette then shot Perkins

multiple times before giving Perkins a chance to comply. The shots killed

Perkins.

B. The lawsuit

Perkins’ wife and child sued the four officers, the two tow truck drivers,

the City, Allstar Recovery, and Pentagon Federal. Perkins’ complaint pleads

eight counts. Counts 4, 7, and 8 plead claims against Pentagon Federal,

Allstar, and the Allstar employees, so the court does not address them here

thanks to the motions to compel arbitration. Counts 1-3 and 5-6 are pleaded

against the City and the four officers. The court addresses the pending motions

to dismiss these five counts in the Discussion section.

STANDARD OF REVIEW

A complaint 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). Rule 8

does not require “detailed factual allegations,” but does demand 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. Id.

Rule 12(b)(6) permits 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. A complaint states a facially plausible claim for relief when the plaintiff

pleads facts that permit a reasonable inference that the defendant is liable for

the misconduct alleged. Id.

DISCUSSION

The court addresses the five counts against the City and four officers in

the order Perkins pleaded them.

Count I: Section 1983 (Officer Marquette)

The Fourth Amendment protects citizens from “unreasonable searches

and seizures,” including excessive use of force by law enforcement. U.S. Const.

amend. IV. Section 1983 allows a person to seek remedies for a violation of this

and other Constitutional rights.

In Count I, Perkins alleges that Officer Marquette used excessive force

when he shot her husband outside their home and § 1983 provides the remedy.

Marquette responds in three ways. First, he claims qualified immunity, which

offers complete protection for government officials if they haven’t violated a

clearly established constitutional right. See Vinyard v. Wilson, 311 F.3d 1340,

1346 (11th Cir. 2002). Second, if he is not immune, Marquette says that he can

be sued only by Mr. Perkins’ estate—not by his wife and child personally.

Third, Marquette argues that the estate’s claim is limited to punitive damages

based on the borrowing of Alabama law that contains that limitation. The court

addresses each contention below.

1. Qualified immunity: The court applies a two-part test for qualified

immunity. First, the officer must show “that he was acting within the scope of

his discretionary authority when the alleged wrongful acts occurred.” Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). If the officer meets this first

burden, then the plaintiff must show that the officer violated a constitutional

right that was clearly established at the time of the wrongful act. Griffin

Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007).

In her complaint, Perkins alleges that Marquette was “at all times

relevant . . . acting within the scope of said agency, service, and/or employment”

with the City of Decatur. (Doc. 1, ¶ 4). And Perkins does not contest

Marquette’s assertion that he was acting within the scope of his duties as a

police officer when he shot her husband. So the court finds that Marquette has

met his burden in this first step.

The court finds that Perkins also meets her burden in the second step. It

was clearly established at the time of Mr. Perkins’ death that an officer cannot

use deadly force unless the officer (1) has probable cause to believe that the

person poses a threat of serious physical harm, either to the officer or to others;

(2) reasonably believes that the use of deadly force is necessary to prevent

escape; and, (3) gave some warning about the possible use of deadly force, if

feasible. Vaughan v. Cox, 343 F.3d 1323, 1329-30 (11th Cir. 2003). In relevant

part, Perkins pleads these facts about the shooting:

25. At no time did Stephen Clay Perkins pose a threat of death or

great bodily harm to Defendants Caleb Combs, Richie Brady,

Bailey Marquette, Christopher Mukkadam, Joey Williams, or

Vance Summers, or any other person present.

26. After Stephen Clay Perkins objected to Combs and/or Brady’s

repossession, Defendant Bailey Marquette identified himself as a

police officer and ordered Plaintiffs decedent to the ground.

27. Giving Stephen Clay Perkins no time to respond to his verbal

commands, Defendant Bailey Marquette fired multiple gunshots

which struck Plaintiffs decedent.

(Doc. 1, ¶¶ 25-27). Assuming these facts are true, Officer Marquette would not

be entitled to qualified immunity because, when Marquette used deadly force,

Perkins was neither trying to leave the scene nor posing a serious threat of

physical harm to others. Nor did Marquette warn Perkins that he might use

deadly force before he shot him.

Marquette responds by saying there are “obvious holes” in Perkins’

factual narrative, calling it “so one-sided as to be purely conclusory rather than

factual.” (Doc. 46 at 8). While Marquette may provide more context after

discovery, at this stage, the court is bound to Perkins’ factual recitation. And

while the narrative may be one-sided, Perkins pleads enough facts to establish

that Marquette knew that he was violating Perkins’ clearly established legal

right against excessive force when he shot him. So the court will deny

Marquette’s claim of qualified immunity on Count I.

2. Estate-only claim: Marquette argues that Alabama law allows only the

“personal representative” of Perkins’ estate to raise a § 1983 claim on his

behalf. Ala. Code § 6-5-410(a). Perkins agrees and asks the court for permission

to replead the complaint to match the parties’ agreement. So the court will

grant Marquette’s motion to dismiss Count I to the extent that it was brought

by Catrela Perkins and A.P. in their individual capacities.

3. Punitives-only claim: Marquette argues that because Alabama law

limits the estate’s recovery to punitive damages, only punitive damages are

available to the estate under § 1983. Perkins points to district court precedent

saying that compensatory damages are available. (Doc. 58 at 8) (citing

Robinson v. City of Hueytown, 2015 U.S. Dist. Lexis 132417 (N.D. Ala. Sept.

30, 2015)). And the parties agree that the Eleventh Circuit has yet to squarely

answer the question. See Gilmere v. City of Atlanta, 864 F.2d 734, 739 n.7 (11th

Cir. 1989) (indicating that borrowing Alabama law to limit § 1983 relief to

punitive damages would violate 42 U.S.C. § 1988(a)).

The court needn’t—and thus doesn’t—answer this question at the Rule

12 stage. As explained, the court holds that the personal representative of the

estate has pleaded a claim upon which relief can be granted under Rule

12(b)(6), and the individual plaintiffs (Catrela Perkins and A.P.) have not. The

court reserves a ruling on the scope of the relief for future motions. Mrs.

Perkins, as the estate’s personal representative, may thus plead multiple

forms of relief in her amended complaint, and Marquette may to object to the

forms of relief he believes are precluded.

—

To sum up, Catrela Perkins, in her role as the personal representative of

her husbands’ estate, has pleaded a claim that could entitle the estate to relief.

But Mrs. Perkins and her daughter A.P. fail to state a claim that would entitle

them to relief. So the court will grant Marquette’s motion to dismiss Count I

as to the individual plaintiffs.

Count II: Section 1983 (Non-shooting officers)

Perkins next alleges a § 1983 claim against the remaining officers at the

scene, Mukkadam, Williams, and Summers. The non-shooting officers claim

qualified immunity. Everyone agrees that these officers were acting within the

scope of their discretionary authority when Perkins was shot, so the only

question is whether Perkins can show that the non-shooting officers violated a

constitutional right that was clearly established at the time of the shooting.

Irvin, 496 F.3d at 1199.

1. The law: When Marquette shot Perkins, it was clearly established that

the Fourth Amendment required officers “to intervene in the use of excessive

force when they have the ability to intervene.” Helm v. Rainbow City, Ala., 989

F.3d 1265, 1278 (11th Cir. 2021) (noting this right was clearly established as

far back as February 1994). Having found in Count I that Marquette used

excessive force (at least as pleaded), the court must now decide whether

Perkins pleads facts that would prove the non-shooting officers could have

intervened but didn’t. See Marantes v. Miami-Dade Cnty., 649 F. App’x 665,

672 (11th Cir. 2016) (“Whether the officer had time to intervene is a relevant

consideration.”).

2. Discussion: Perkins pleads the events like this:

21. On September 29, 2023, Defendants, Marquette, Combs, and

Brady went to Decedent’s home.

22. When Defendants, Marquette, Combs, and Brady arrived at

Decedent’s home, they did not announce their presence or office.

Rather, Defendants and Marquette concealed themselves around

Decedent’s home.

23. At that time, Combs and/or Brady attempted to attach their

tow truck to Decedent’s vehicle. At this time, Combs and Brady

knew or should have known they lacked legal authority to

repossess Decedent’s vehicle.

24. Subsequently, Decedent exited his home and confronted Combs

and/or Brady and objected to the repossession attempt.

25. At no time did Decedent pose a threat of death or great bodily

harm to Defendants, Marquette, Combs, and Brady, or any other

person present.

26. After Decedent objected to Combs and/or Brady’s repossession,

Marquette identified himself as a police officer and ordered

Decedent to the ground.

27. Giving Decedent no time to respond to his verbal commands,

Marquette fired multiple gunshots which struck Plaintiffs

decedent.

28. As a direct and proximate result of the gunshots fired by

Marquette, Decedent died.

(Doc. 1, ¶¶ 21-28 (cleaned up)). Perkins adds the following in Count II:

36. At all times relevant, Defendants acted under color of state law.

37. At all times relevant, Defendants had a duty to prevent

Marquette from inflicting unlawful and unconstitutional deadly

harm to Decedent.

38. Notwithstanding said duty, Defendants failed to stop the

unprovoked and unjustified use of excessive and deadly force

against Decedent by Marquette.

39. The conduct of Defendants was done intentionally and willfully

and exhibited a flagrant disregard for Decedent’s federally secured

constitutional rights and deprived Decedent of his rights in

violation of the Fourth and Fourteenth Amendments to the United

States Constitution.

40. As a direct and proximate result of the unconstitutional and

unreasonable conduct of Defendants, Decedent died.

(Doc. 1, ¶¶ 36-40 (cleaned up)).

Even if you consider these facts in a light most favorable to Perkins, the

facts do not show that the non-shooting officers had the chance to intervene

once they knew Marquette might use excessive or deadly force. Perkins does

not plead that the officers discussed shooting Perkins before they took positions

hiding around the house. Perkins does not plead that the non-shooting officers

came out before the shooting. Perkins does not plead that any of the officers

heard Marquette’s warning or saw him draw his gun. Most importantly,

Perkins pleads that no one had time to react:

26. After Decedent objected to Combs and/or Brady’s repossession,

Marquette identified himself as a police officer and ordered

Decedent to the ground.

27. Giving Decedent no time to respond to his verbal commands,

Marquette fired multiple gunshots which struck Plaintiffs

decedent.

(Doc. 1, ¶¶ 26-27 (highlight added)). If Perkins did not have time to respond to

Marquette’s verbal commands before Marquette shot him, then neither did the

other officers. And if the non-shooting officers had no opportunity to intervene,

they are entitled to qualified immunity. See Irvin, 496 F.3d at 1199.

The court will thus grant the non-shooting officers’ motion to dismiss

Count II based on qualified immunity. The dismissal will be without prejudice

to give Perkins one opportunity to plead facts that would establish that one or

more of the non-shooting officers had the opportunity to intervene but did not.

Count III: Section 1983 (City of Decatur)

Perkins next pleads a § 1983 claim against the City of Decatur, for whom

the four officers were on duty at the time of the shooting.

1. The law: Municipalities are only liable for their employees’ acts under

§ 1983 if the employee was executing an official policy or custom. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658 (1978). That means, “to impose § 1983 liability

on a municipality, a plaintiff must show: (1) that his constitutional rights were

violated; (2) that the municipality had a custom or policy that constituted

deliberate indifference to that constitutional right; and (3) that the policy or

custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th

Cir. 2004).

The court found in Count 1 that Perkins pleads enough facts to prove a

constitutional right was violated. So to make the City liable under § 1983, Mrs.

Perkins must also plead facts that would show the City had a custom or policy

that was deliberately indifferent to Mr. Perkins’ right against excessive force

and that policy caused Marquette to shoot Perkins.

2. Discussion: Perkins pleads the following custom or policy in her

statement of the facts:

10. On and prior to September 29,2023, Defendant City of Decatur,

Alabama employed a policy, procedure, or custom, of assessing

Decatur police officers’ performance. The results of this

assessment were used by Defendant City of Decatur, Alabama, in

various employment decisions related to its police officers,

including pay, promotion, and assignment decisions.

1l. Under this policy, practice, or custom, particular police actions

of each officer, including issuing tickets and making arrests, were

recorded and assigned numerical values. Under this system, less

invasive citizen interactions, such as issuing a citizen a ticket,

were assigned a lower value than more invasive citizen

interactions, such as arresting the citizen.

12. Under this policy, practice, or custom, the police officers who

engaged in more invasive citizen interactions were given

preference in pay, promotion, and assignment decisions, to those

officers who engaged in less invasive citizen interactions.

13. The effect of Defendant City of Decatur, Alabama’s policy,

practice, or custom, was to encourage their police officers to

escalate officers’ use of force during citizen interactions. A further

effect of this policy, procedure, or custom was to promote the use

of excessive and unconstitutional force against citizens during

arrests and other citizen interactions.

14. The stated policy of Defendant City of Decatur, Alabama’s

police department is to use de-escalation techniques during citizen

interactions.

15. On September 29, 2023, Defendants Marquette, Mukkadam,

Williams, and Summers were acting pursuant to the above-

mentioned policy, practice, or custom of Defendant City of Decatur,

Alabama.

(Doc. 1, ¶¶ 10-15) (cleaned up). Mrs. Perkins then—in a conclusory manner—

pleads in Count III that Perkins’ death resulted from this policy:

42. The policy, procedure, or custom described in paragraphs l0-

14, supra, was a widespread practice that was permanent and

well-settled so as to constitute a custom and usage of Defendant

City of Decatur, Alabama so as to have the force of law.

43. Defendant City of Decatur, Alabama had actual and/or

constructive knowledge of the practice yet did nothing to end the

practice.

44. As a direct and proximate result of the unconstitutional policy

of Defendant City of Decatur, Alabama, Stephen Clay Perkins

was deprived of his federally secured constitutional rights in

violation of the Fourth and Fourteenth Amendments to the

United States Constitution.

45. As a direct and proximate result of the unconstitutional policy

of Defendant City of Decatur, Alabama, Stephen Clay Perkins

died.

(Doc. 1, ¶¶ 42-45) (cleaned up).

The parties disagree whether the policy described in Paragraphs 10-14,

if proved true, would constitute deliberate indifference to the constitutional

right against excessive force. But the court needn’t resolve that debate because,

even if Perkins is right, Perkins pleads no facts that would prove Officer

Marquette shot Perkins because of the pleaded policy.

According to Perkins, Decatur officers are supposed to use “de-escalation

techniques” when dealing with citizens (Id., ¶ 14), but are rewarded with extra

points toward pay and promotions if they instead use more invasive

techniques—for example, arrest rather than a ticket (Id., ¶¶ 11-13).

But Perkins pleads no facts that links the ‘extra point’ reward to

Marquette’s actions. Perkins does not plead that using deadly force rewards

extra points, rather than demerits. Perkins does not plead that the City knew

that its point system led to other officers using deadly force before Marquette

shot Perkins. Perkins does not plead that the City has ever awarded an officer

extra points for using deadly force, thus providing the incentive to escalate

citizen interactions to a lethal level. Perkins does not plead that Marquette

pulled the trigger because he wanted extra points for escalating the situation—

or even thought about the policy before acting.

In short, Perkins pleads no facts that would link Decatur’s (alleged)

extra-points policy to Marquette shooting Perkins. The court will thus grant

the City’s motion to dismiss Count III for failure to state a claim that entitles

Perkins to relief. This dismissal will be without prejudice, meaning that the

court will give Perkins one chance to amend her complaint to sufficiently allege

both that the City’s policy constituted deliberate indifference and that policy

caused Perkins’ death.

Count V: Wrongful Death (Officer Marquette)

In Count V, Perkins sues Marquette and the City of Decatur for wrongful

death under Ala. Code. § 6-5-410. For the same reasons discussed in Count 1,

the court finds that only Mrs. Perkins, as personal representative of her

husband’s estate, can raise a claim under Alabama’s wrongful death statute.

And the court will separate its discussion of each Defendant’s motion to dismiss

Count V, starting with Officer Marquette.

1. Immunity: Marquette pleads two types of immunity: (a) state-agent

immunity, as defined by state common law, and (b) peace officer immunity,

under Ala. Code § 6-5-338(a). Recently, the Alabama Supreme Court affirmed

that the same test governs both types of immunity: “The restatement of State-

agent immunity as set out by this Court in Ex parte Cranman ... governs the

determination of whether a peace officer is entitled to immunity under § 6-5-

338(a).” Ex parte City of Montgomery, 2024 WL 1685063, at * 3 (Ala. Apr. 19,

2024) (quoting Ex parte City of Montgomery, 272 So. 3d 155, 160 (Ala. 2018),

and referencing Ex parte Cranman, 792 So. 2d 392 (Ala. 2000)). The test has

two parts. First, the officer has the burden of proving that he (1) was a peace

officer, (2) performing his law-enforcement duties at the time of the incident,

and (3) exercising judgment and discretion. Montgomery, 2024 WL 1685063, at

*3 (citing Ex parte City of Homewood, 231 So. 3d 1082, 1087 (Ala. 2017)). The

facts pleaded in Perkins’ complaint undisputedly satisfy these elements, so

Marquette meets his burden.

Second, the burden shifts to Perkins to prove at least one of the two

“Cranman exceptions”:

In certain circumstances, a peace officer is not entitled to such

immunity from an action seeking liability in his or her individual

capacity:

(1) when the Constitution or laws of the United States, or the

Constitution of this State, or laws, rules, or regulations of this

State enacted or promulgated for the purpose of regulating the

activities of a governmental agency require otherwise; or

(2) when the State agent acts willfully, maliciously, fraudulently,

in bad faith, beyond his or her authority, or under a mistaken

interpretation of the law.

Montgomery, 2024 WL 1685063, at * 3 (quoting Montgomery, 272 So. 3d at

160)). The court applies this standard below and reaches a different conclusion

based on the particular allegation in Count V—i.e., failure to announce versus

excessive force/shooting.

2. Announcement-related claim: Perkins starts Count V by alleging that

Marquette’s failure to announce his presence when he arrive at Perkins’ house

proximately caused Perkins’ death:

55. Notwithstanding said duty, Defendants City of Decatur,

Alabama, by and through its authorized agent, servant, and/or

employee Bailey Marquette, committed one or more of the

following neglectful, careless, and/or unskillful acts and/or

omissions

(a) Neglectfully, carelessly, and unskillfully failed to announce his

office when he arrived at Plaintiff s decedent’s home . . .

56. As a direct and proximate result of one or more of the

aforementioned acts and/or omissions, Stephen Clay Perkins died.

(Doc. 1, ¶¶ 55-56) (cleaned up). Marquette is immune from liability for this

claim because Perkins can meet neither Cranman exception.

First, Perkins does not point to any federal case or statute that requires

a law enforcement official to announce his presence when arriving at a home

to monitor a repossession. So the court finds that no federal law, rule, or

regulation requires stripping Marquette of his state-law immunity.

Second, Perkins alleges that Marquette acted “neglectfully, careless, and

unskillfully” (¶ 55(a)) and within the scope of his employment (¶ 53) when he

failed to announce. Perkins thus fails to plead facts that would show that

Marquette instead acted “willfully, maliciously, fraudulently, in bad faith,

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

Montgomery, 2024 WL 1685063, at * 3

Because Marquette meets his burden of proving that he was a peace

officer acting within the scope of his duty, and Perkins fails to meet either

Cranman exception, Marquette is immune from state-law liability for wrongful

death based on his failure to announce. So the court will grant Marquette’s

motion to dismiss the claim pleaded in ¶ 55(a) without prejudice, thus giving

Perkins one chance to re-plead the claim to address this deficiency.

3. Shooting-related claim: The rest of Perkins’ allegation focuses on the

events surrounding Marquette shooting Perkins:

55. Notwithstanding said duty, Defendants City of Decatur,

Alabama, by and through its authorized agent, servant, and/or

employee Bailey Marquette, committed one or more of the

following neglectful, careless, and/or unskillful acts and/or

omissions . . .

(b) Negligently, carelessly, and unskillfully failed to de-escalate

the citizen interaction with Stephen Clay Perkins when Defendant

knew or should have known Perkins did not present a threat of

injury to himself or others;

(c) Negligently, carelessly, and unskillfully failed to allow Stephen

Clay Perkins an opportunity to respond to Defendant's verbal

commands prior to discharging his firearm at Plaintiff’s decedent;

(d) Neglectfully, carelessly, and unskillfully discharged his firearm

at Stephen Clay Perkins when Perkins did not pose a threat of

death or serious bodily injury to others; and

(e) Negligently, carelessly, and unskillfully failed to warn Stephen

Clay Perkins that he intended to use deadly force prior to

discharging his firearm at Perkins.

56. As a direct and proximate result of one or more of the

aforementioned acts and/or omissions, Stephen Clay Perkins died.

(Doc. 1, ¶¶ 55-56) (cleaned up). Perkins meets the first Cranman exception for

these allegations. In Count 1, the court found that Marquette may have

violated Perkins’ constitutional rights if Perkins can prove that Marquette

used lethal force even though Marquette had not warned Perkins that he might

use deadly force; Perkins was not trying to leave the scene; and Perkins was

not posing a serious threat of physical harm to others. Because state-agent

immunity does not apply if the state agent violated a federal constitutional

right under the first Cranman exception, Marquette is not entitled to state-

agent or peace officer immunity on Count V. See Taylor v. Hughes, 920 F.3d

729, 734-35 (11th Cir. 2019) (“state-agent immunity do[es] not immunize the

guards from liability under state law if they violated Almus’s constitutional

rights”); Ex parte Rizk, 791 So. 2d 911, 913-14 (Ala. 2000) (state-agent

immunity doesn’t apply “when the Constitution or laws of the United States …

require otherwise”).

4. Punitives-only claim: Like Count 1, Marquette argues that the estate’s

wrongful death claim is limited to punitive damages. Unlike Count 1, however,

Perkins agrees. (Doc. 58 at 8, n.3). So the court will limit any recovery against

Marquette under Count V to punitive damages.

Count V: Wrongful Death (City of Decatur)

Perkins alleges that the City is also liable to pay punitive damages for

Marquette’s actions. The City claims state-law immunity from two statutory

sources: (1) Ala. Code § 6-5-338(b) and (2) Ala. Code § 11-47-190. The court

considers each below. Combined, these statutes immunize the City from state-

law liability under Count V.

1. Section 6-5-338(b) & Failure-to-announce claim: As discussed, Section

6-5-338(a) grants immunity to peace officers who act within the line and scope

of their duties. The next provision, § 6-5-338(b), extends that immunity to

“governmental units or agencies authorized to appoint peace officers.” This

creates a simple rule: If the peace officer gets immunity under subsection (a),

then his governmental employer gets vicarious immunity under subsection (b).

If the officer doesn’t get immunity, then neither does his employer (at least

under this statute). See City of Bayou La Batre v. Robinson, 785 So.2d 1128,

1131 (Ala.2000); Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala.2000);

Borders v. City of Huntsville, 875 So.2d 1168, 1183 (Ala. 2003).

As discussed in the previous section, Section 6-5-338(a) immunizes

Officer Marquette from wrongful-death liability for his alleged failure to

announce. Section 6-5-338(b) thus immunizes the City from liability stemming

from the same allegation.

The court found, however, that Section 6-5-338(a) does not immunize

Marquette from liability stemming from his use of lethal force. That means

Section 6-5-338(b) cannot immunize the City from liability for acts stemming

from the same allegation. See Borders, supra (denying city’s claim of immunity

because the officer was not entitled to immunity). The court thus turns to § 11-

47-190.

2. Section 11-47-190 & Shooting-related claim: Section 11-47-190 states

that “[n]o city or town shall be liable for damages for injury done to or wrong

suffered by any person or corporation, unless such injury or wrong was done or

suffered through the neglect, carelessness, or unskillfulness of some agent,

officer, or employee of the municipality[.]” Section 11-47-190 thus gives cities

immunity when their employees act intentionally and withholds it when they

act negligently—i.e., with “neglect, carelessness, or unskillfulness.” See, e.g.,

Franklin v. City of Huntsville, 670 So.2d 848, 850 (Ala.1995) (“Section 11–47–

190 provides for an action against a municipality for the ‘neglect, carelessness

or unskillfulness' of its agents, not for their intentional torts”); Ex parte City of

Gadsden, 718 So.2d 716, 721 (Ala.1998) (“Section 11–47–190 ... absolves a city

from liability for an intentional tort committed by one of its agents”); see also

Brown v. City of Huntsville, 608 F.3d 724, 743 (11th Cir. 2010) (“In sum, under

§ 11–47–190, a city is liable for negligent acts of its employees within the scope

of their employment, but not intentional torts of its employees.”).

The court finds that, if you assume the facts Perkins pleads are true,

then the City is entitled to immunity under § 11-47-190 because Marquette

didn’t shoot Perkins out of “neglect, carelessness, or unskillfulness,” he

intentionally shot Perkins. The Eleventh Circuit’s opinion in Brown illustrates

this distinction.

Plaintiff Brown was sitting in a parked car in a Wal-Mart parking lot

when officers approached her for playing her music too loud. Brown and one of

the officers (Officer Norris) got into a verbal disagreement. Brown then tried

to get out of the car; Brown says because Norris told her to, while Norris said

she was trying to flee. Norris then pepper sprayed Brown in the face and took

her to the ground. While Brown alternatively pleaded that Norris acted

negligently or willfully, Brown, 608 F.3d at 743, n.27, the Eleventh Circuit

found that “all of Brown’s evidence indicated that Norris’s use of pepper spray

and other force against her was intentional, as opposed to neglectful or

careless.” Id. at 743. The court added: “The factual issues in this case are not

over whether Norris’s acts were intentional, but over what Brown did or did

not do before Norris acted, the extent of force Norris used, and whether

Brown’s actions justified Norris’s use of force in response.” Id. Because Officer

Norris acted intentionally—not negligently—the Circuit Court affirmed the

district court’s granting of immunity under § 11-47-190.

The same is true here. Perkins pleads in Count V that Marquette acted

“negligently, carelessly, and unskillfully” in an attempt to defeat the City’s

immunity claim. (Doc. 1, ¶ 55). But that pleading is conclusory and is refuted

by the facts Perkins pleads in her statement of facts:

21. On September 29, 2023, Defendants, Marquette, Combs, and

Brady went to Decedent’s home.

22. When Defendants, Marquette, Combs, and Brady arrived at

Decedent’s home, they did not announce their presence or office.

Rather, Defendants and Marquette concealed themselves around

Decedent’s home.

23. At that time, Combs and/or Brady attempted to attach their

tow truck to Decedent’s vehicle. At this time, Combs and Brady

knew or should have known they lacked legal authority to

repossess Decedent’s vehicle.

24. Subsequently, Decedent exited his home and confronted Combs

and/or Brady and objected to the repossession attempt.

25. At no time did Decedent pose a threat of death or great bodily

harm to Defendants, Marquette, Combs, and Brady, or any other

person present.

26. After Decedent objected to Combs and/or Brady’s repossession,

Marquette identified himself as a police officer and ordered

Decedent to the ground.

27. Giving Decedent no time to respond to his verbal commands,

Marquette fired multiple gunshots which struck Plaintiffs

decedent.

28. As a direct and proximate result of the gunshots fired by

Marquette, Decedent died.

(Doc. 1, ¶¶ 21-28 (cleaned up)). These facts, if assumed true, show that

Marquette intentionally ordered Perkins to the ground, then intentionally shot

Perkins before he could comply. Marquette didn’t act out of negligence or

mistake. Perkins even says so when pleading her count against Marquette:

33. The conduct of Defendant Bailey Marquette was done

intentionally and willfully, and exhibited a flagrant disregard for

Stephen Clay Perkins’ federally secured constitutional rights and

deprived Stephen Clay Perkins of his rights in violation of the

Fourth and Fourteenth Amendments to the United States

Constitution.

(Doc. 1, ¶ 33) (cleaned up, highlight added).

Like Brown, the fact questions here will center on excessive force and

justification, not intent. Just like Officer Norris intentionally sprayed Brown

with pepper spray, Officer Marquette intentionally shot Perkins with his

firearm. And because Marquette’s intent is clear from the face of the complaint,

the City is entitled to immunity under Ala. Code § 11-47-190.

—

To sum up, the court will grant the City’s motion to dismiss Count V.

While the court doubts that Perkins can replead the facts in a way that

transforms the shooting from intentional to negligent, especially without

impacting the viability of her other claims, the court will make the dismissal

without prejudice to give Perkins one chance to amend her shooting-related

allegations—mindful of her obligations under Rule 11.

Count VI: Wrongful Death (Non-shooting officers)

Perkins alleges that the three non-shooting officers are also liable under

Alabama’s wrongful death statute.1 The officers argue (a) that they are

immune under state law and (b) Perkins fails to state a claim that entitles her

to relief. The court addresses both arguments below.

1. Immunity: The non-shooting officers claim the same two types of

immunity that Marquette claimed: state-agent immunity and peace officer

immunity, under Ala. Code § 6-5-338(a). As explained, the test for both

immunity types is the same.

First, each officer has the burden of proving that he (1) was a peace

officer, (2) performing his law-enforcement duties at the time of the incident,

and (3) exercising judgment and discretion. Montgomery, 2024 WL 1685063, at

*3 (citing Ex parte City of Homewood, 231 So. 3d 1082, 1087 (Ala. 2017)). The

facts pleaded in Perkins’ complaint satisfy these elements for each officer, see

(doc. 1, ¶ 60), so each non-shooting officer meets his burden.

Second, the burden shifts to Perkins to prove at least one of the two

“Cranman exceptions”:

1 For the reasons already stated, this claim can be raised only by the personal representative

of Perkins’ estate and is limited to punitive damages.

In certain circumstances, a peace officer is not entitled to such

immunity from an action seeking liability in his or her individual

capacity:

(1) when the Constitution or laws of the United States, or the

Constitution of this State, or laws, rules, or regulations of this

State enacted or promulgated for the purpose of regulating the

activities of a governmental agency require otherwise; or

(2) when the State agent acts willfully, maliciously, fraudulently,

in bad faith, beyond his or her authority, or under a mistaken

interpretation of the law.

Montgomery, 2024 WL 1685063, at * 3 (quoting Montgomery, 272 So. 3d at

160). The court found in Count II that Perkins fails to adequately plead that

the non-shooting officers violated a clearly established federal right. So

Perkins cannot meet her burden of establishing the first Cranman exception.

Perkins must therefore plead facts that would show the individual non-

shooting officers “act[ed] willfully, maliciously, fraudulently, in bad faith,

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

Montgomery, 2024 WL 1685063, at * 3. But in Count VI, Perkins pleads that

the non-shooting officers acted “negligently, carelessly, and unskillfully,” not

willfully or maliciously:

62. Notwithstanding said duty, the City of Decatur, Alabama, by

and through its authorized agents, servants, and/or employees,

Defendants, committed one or more of the following neglectful,

careless, and/or unskillful acts and/or omissions:

(a) Neglectfully, carelessly, and unskillfully failed to

announce their office when they arrived at Decedent’s home;

(b) Negligently, carelessly, and unskillfully failed to de-

escalate the citizen interaction with Decedent when Defendants

knew or should have known Decedent did not present a threat of

injury to himself or others;

(c) Negligently, carelessly, and unskillfully failed to prevent

Marquette from discharging his firearm at Decedent when

Decedent did not pose a threat of death or serious bodily injury to

others; and

(d) Negligently, carelessly, and unskillfully failed to warn

Decedent that Marquette intended to use deadly force against

Decedent when Decedent did not pose a threat of death or serious

bodily injury to others.

63. As a direct and proximate result of one or more of the

aforementioned acts and/or omissions, Decedent died.

(Doc. 1, ¶ 62-63). If you take Perkins’ conclusory allegations as true, Perkins

essentially admits the non-shooting officers are entitled to state-law immunity.

Further, as pleaded, the facts would not establish that the non-shooting

officers could have willfully, maliciously, fraudulently, or in bad faith failed to

(a) de-escalate the situation between Perkins and Marquette, (b) prevent

Marquette from firing his weapon, or (c) warn Perkins that Marquette was

about to shoot him. As explained, Perkins fails to plead what the non-shooting

officers were doing, or where they were, when Marquette shot Perkins. And

Perkins affirmatively pleads facts that would show the non-shooting officers

had no time to intervene or warn Perkins.

The only allegation Perkins pleads that might have been intentional or

willful was the officers’ failure to announce their presence to Perkins when

they arrived at his home. But again, Perkins pleads that the officers did this

negligently and carelessly, not willfully or maliciously. See (Doc. 1, ¶ 62(a)).

Plus, as discussed below, Perkins fails to plead facts that show the officers’

failure to announce their presence proximately caused Perkins’ death. So the

court finds that Perkins fails to meet her burden of proving a Cranman

exception, and the non-shooting officers are therefore immune under Alabama

law. See Ala. Code § 6-5-338(a).

2. Failure to state a claim: Even if the non-shooting officers were not

immune, the court would still dismiss Count VI because Perkins fails to plead

facts that establish liability under Alabama’s Wrongful Death statute.

Causation is an essential element in a wrongful death action. See Ala.

Code §6-5-410 (noting that a party must show that the “wrongful act, omission,

or negligence of any person…caused” the death of the testator or intestate).

The Alabama Supreme Court has stated that “the proximate cause of a

negligent injury is established where an injury is the natural and probable

consequence of the negligent act or omission (or a direct wrongful act) which

an ordinary prudent person ought reasonably to foresee would result in injury.”

Peevy v. Ala. Power Co., 393 So. 2d 971, 973 (Ala. 1981). “Foreseeability does

not require that the particular consequence should have been anticipated, but

rather that some general harm or consequence should have been anticipated.”

Lands v. Ward, 349 So. 3d 219, 226 (Ala. 2021).

Again, in Count VI, Mrs. Perkins pleads four acts that she says

proximately caused her husband’s death: (1) failure to announce the officers’

presence, (2) failure to de-escalate, (3) failure to prevent Officer Marquette

from firing his weapon, and (4) failure to warn Perkins that Officer Marquette

intended to shoot him. (Doc. 1, ¶¶ 62-63 (cleaned up)). The court can summarily

dispose of the final three because, as explained throughout, Perkins pleads that

Marquette gave no time between his warning and his shots—making it

factually impossible for the non-shooting officers to warn Perkins that he

would be shot or to de-escalate the situation and stop Marquette from shooting

Perkins. Again, Perkins doesn’t even allege that the non-shooting officers saw

or heard the brief interaction between Marquette and Perkins.

As for the failure to announce their arrival, the court finds that the

pleaded facts do not link the failure to announce to the shooting. Under

Alabama law, “the proximate cause of a negligent injury is established where

an injury is the natural and probable consequence of the negligent act or

omission (or a direct wrongful act) which an ordinary prudent person ought

reasonably to foresee would result in injury.” Peevy, 393 So. 2d at 973. Perkins

pleads no facts that would establish that the failure to tell Perkins that police

were present would naturally or probably result in one of the officers shooting

Perkins. Some event or events had to occur in between to cause Marquette to

fire his weapon, and those events broke the causal chain.

Accordingly, the court finds that Mrs. Perkins fails to plead facts that

would establish any act of the non-shooting officers proximately caused her

husband’s death. The court will thus grant the non-shooting officers’ motion

to dismiss Count VI without prejudice, meaning that Perkins will get one

chance to replead this count if she chooses.

Count VI: Wrongful Death (City of Decatur)

Also in Count VI, Perkins pleads that the City is vicariously liable for

the acts of the non-shooting officers. As explained in the last section, Ala. Code

§ 6-5-338(a) provides the non-shooting officers with immunity from liability

under Count VI. And as explained in the section about Count V, if a peace

officer gets immunity under subsection (a), then his governmental employer

gets vicarious immunity under subsection (b). See City of Bayou La Batre v.

Robinson, 785 So.2d 1128, 1131 (Ala. 2000); Ex parte City of Gadsden, 781

So.2d 936, 940 (Ala. 2000); Borders v. City of Huntsville, 875 So.2d 1168, 11838

(Ala. 2003). Because the court granted each non-shooting officer’s claim of

peace officer immunity on Count VI, the court must also grant the City’s claim

of vicarious immunity on the same count. The court thus grants the City’s

motion to dismiss Count VI without prejudice, meaning that the court will give

Perkins one chance to replead the claim to make it viable.

CONCLUSION

For these reasons, the court GRANTS the Motions to Dismiss filed by

Mukkadam, Williams, and Summers (doc. 15) and the City of Decatur (doc.

18). The court GRANTS IN PART and DENIES IN PART Marquette’s

Motion to Dismiss (doc. 45).

All dismissals are without prejudice, meaning that the court will give

Perkins one chance to replead her complaint to address the issues outlined in

this and future opinions after the court rules on the pending motions to compel

arbitration. Once the court enters a schedule for amending Perkins’ complaint,

the failure to timely amend the complaint, or to replead a claim in a viable

manner, will result in the dismissal of Perkins’ claim(s) with prejudice.

DONE and ORDERED on August 6, 2024.

Logi Hage

COREY L. MAZE

UNITED STATES DISTRICT JUDGE

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