# Perkins v. City of Decatur Alabama

> District Court, N.D. Alabama · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10631144

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** August 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10631144

## Opinion text

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

22

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10631144. Public record. Not legal advice.