April Pipkins v. City of Hoover, Alabama

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10814

____________________

APRIL PIPKINS,

individually, and as the Personal Representative

of the estate of Emantic Fitzgerald Bradford, Jr.,

Plaintiff-Appellant,

versus

CITY OF HOOVER, ALABAMA,

DAVID ALEXANDER,

JOHN DOE,

RIVERCHASE GALLERIA MALL,

BROOKFIELD ASSET MANAGEMENT, INC., et al.,

Defendants-Appellees.

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2 Opinion of the Court 23-10814

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:19-cv-01907-RDP

____________________

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

JORDAN, Circuit Judge.

“In the mind of the police officer, the lawfully-carried gun can

kill just as easily as the illegal one; it is never more than a mo-

ment away from doing so.” Brandon de Pozo & Barry Fried-

man, Policing in the Age of the Gun, 98 N.Y.U. L. Rev. 1831, 1867

(2023).

On Thanksgiving night in 2018, David Alexander—a police-

man with the City of Hoover—was on foot patrol with his partner

in the Galleria Mall in Birmingham, Alabama. During a suspected

active shooting situation, and within seconds after gunshots had

been fired in the Mall, Officer Alexander saw Emantic “E.J.” Fitz-

gerald Bradford moving towards two men (who appeared to be

shooting victims) with a gun in his hand and at his side. Without

issuing a verbal warning, Officer Alexander shot and killed Mr.

Bradford when he was about ten feet away from the two men. It

turns out that Mr. Bradford was legally authorized to carry his gun

pursuant to a permit issued under Alabama law and was going to-

wards the sound of the shots in an attempt to provide assistance.

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23-10814 Opinion of the Court 3

I

April Pipkins, the mother of Mr. Bradford and the repre-

sentative of his estate, filed suit against Officer Alexander, the City

of Hoover, Hoover Mall Ltd. (which owned the Galleria Mall), and

Brookfield Asset Management (which operated the Galleria Mall).

She asserted Fourth Amendment claims under 42 U.S.C. § 1983 and

negligence and wantonness claims under Alabama law for her son’s

death. 1

The district court dismissed the state law claims under Rule

12(b)(6) and granted summary judgment against Ms. Pipkins on the

§ 1983 claims. In part, the court ruled that Officer Alexander’s use

of deadly force was reasonable under the Fourth Amendment and

that, under the circumstances, providing a verbal warning was not

feasible.

This is Ms. Pipkins’ appeal from the dismissal order and the

summary judgment order. We begin with the § 1983 claims and

then turn to the state law claims.

II

Summary judgment is appropriate where “there is no gen-

uine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Our review of

the district court’s summary judgment order is plenary, and we

1 We refer to Hoover Mall Ltd. and Brookfield Asset Management collectively

as the “Mall defendants.”

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4 Opinion of the Court 23-10814

look at the evidence in the light most favorable to Ms. Pipkins, the

non-movant. See Butler v. Smith, 85 F.4th 1102, 1111 (11th Cir.

2023).

A

We summarized the facts at the beginning, but now set

them out with more detail. In doing so we note that the record

includes a video clip from a mall surveillance camera. The clip,

which we have reviewed, depicts the shooting of Mr. Bradford and

supports the version of events we provide. See Scott v. Harris, 550

U.S. 372, 379–81 (2007).

On Thanksgiving night in 2018, the Galleria Mall in Birming-

ham, Alabama, was crowded with holiday shoppers. As relevant

here, two City of Hoover policemen, Officer Alexander and his

partner, were assigned to foot patrol at the Mall that evening and

were stationed on the second floor. They were wearing their uni-

forms.

At 9:51 p.m., Officer Alexander and his partner heard two

gunshots and the screams of a woman. They drew their firearms

and moved towards the sound of the gunshots, which was about

75 feet from their location. They saw a crowd of shoppers near a

Foot Action store running away from the sound of the gunshots.

They also observed two men near a railing who were not running

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23-10814 Opinion of the Court 5

away. One of the men was clutching his stomach and appeared to

be injured. 2

Officer Alexander also noticed a man—Mr. Bradford—run-

ning in the direction of the two men while holding a gun in his

hand and at his side. Though he was carrying a gun, Mr. Bradford

was not in a “ready fire” position. But Mr. Bradford was between

Officer Alexander and his partner and the two men near the railing,

and would have reached them first. In other words, Officer Alex-

ander was behind Mr. Bradford as they both moved towards the

two men.

Approximately five seconds after hearing the initial gun-

shots, Officer Alexander shot and killed Mr. Bradford, mistakenly

believing he was going to shoot the two men who were near the

railing. Officer Alexander did not issue a verbal warning to Mr.

Bradford before firing.

The video clip from the mall surveillance camera indicates

that Officer Alexander discharged his weapon about two to three

seconds after seeing Mr. Bradford running with a gun in his hand.

At the time of the shooting, Mr. Bradford was about ten feet away

from the two men, and Office Alexander was about ten feet behind

Mr. Bradford.

2 The man clutching his stomach, Brian Wilson, had been shot by Erron

Brown.

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As noted, Mr. Bradford was a Good Samaritan who was go-

ing toward the sound of gunshots and was legally authorized to

carry his gun. Mr. Brown, who had fired the initial two shots at the

Galleria Mall and injured Mr. Wilson, was charged with first-de-

gree assault in February of 2021.

Nicholas Bloomfield, an expert for Ms. Pipkins, provided an

opinion on the use of deadly force by Officer Alexander. As rele-

vant here, he opined that Officer Alexander’s failure to provide a

verbal warning before shooting Mr. Bradford was “unreasonable,

tactically unsound, and contrary to generally accepted police prac-

tices.”

B

The Fourth Amendment guarantees the “right of the people

to be secure in their persons . . . against unreasonable searches and

seizures.” U.S. Const. amend. IV. “[A]pprehension by the use of

deadly force is a seizure[.]” Tennessee v. Garner, 471 U.S. 1, 7 (1985).

Officer Alexander’s use of deadly force is reviewed under an

“objective reasonableness” standard, which “requires a careful bal-

ancing of the nature and quality of the intrusion on [Mr. Bradford’s]

Fourth Amendment interests against the countervailing govern-

mental interests at stake.” Graham v. Connor, 490 U.S. 386, 396

(1989) (internal quotation marks and citations omitted). Reasona-

bleness is assessed “from the perspective of a ‘reasonable officer on

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the scene.’” Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1229 (11th

Cir. 2020) (quoting Graham, 490 U.S. at 396). 3

“The operative question in excessive force cases is ‘whether

the totality of the circumstances justifie[s] a particular sort of . . .

seizure.’” Cnty. of L.A. v. Mendez, 581 U.S. 420, 427–28 (2017) (quot-

ing Garner, 471 U.S. at 8–9). Generally speaking, a law enforcement

officer is permitted to use deadly force if he “(1) has probable cause

to believe that the suspect poses a threat of serious physical harm,

either to the officer or to others, (2) reasonably believes that the

use of deadly force was necessary to prevent escape, and (3) has

given some warning about the possible use of deadly force, if feasi-

ble.” Perez v. Suszcynski, 908 F.3d 1213, 1218–19 (11th Cir. 2016)

(internal quotation marks and citation omitted).

Ms. Pipkins asserts that the district court improperly granted

summary judgment in favor of Officer Alexander because (1) he

lacked probable cause to believe that Mr. Bradford presented a se-

rious or deadly threat, and (2) there is a genuine dispute of material

fact as to whether a verbal warning was feasible. Given the totality

of the circumstances, we reject both arguments.

3 At summary judgment, of course, any conflicts in the evidence are resolved

in favor of Ms. Pipkins when deciding whether Officer Alexander’s conduct

violated the Fourth Amendment. See Tolan v. Cotton, 572 U.S. 650, 655–56

(2014).

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8 Opinion of the Court 23-10814

As noted,

[w]e analyze th[e] question [of Fourth Amendment

reasonableness] from the perspective “of a reasonable

officer on the scene, rather than with the 20/20 vision

of hindsight.” We thus “allo[w] for the fact that po-

lice officers are often forced to make split-second

judgments—in circumstances that are tense, uncer-

tain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.”

Plumhoff v. Rickard, 572 U.S. 765, 775 (2014) (citations omitted).

Here the suspected crime—the shooting of a patron at the

Galleria Mall—was a serious one. Under the circumstances, and

given the short amount of time available to him, Officer Alexander

reasonably perceived Mr. Bradford to be the shooter and therefore

a person who posed an immediate danger to others. To recap, Of-

ficer Alexander was in a crowded Galleria Mall, heard two gun-

shots, saw shoppers at the Foot Action store running away from

the sound of the gunshots, and observed two men near a railing

who were not running away (one of them clutching his stomach as

if injured). While moving with his partner toward the sound of the

gunshots, Officer Alexander saw Mr. Bradford running towards the

two men with a gun in his hand and at his side. Mr. Bradford was

between Officer Alexander and his partner and the two men, mean-

ing that he (Mr. Bradford) would reach the two men before the po-

licemen. Officer Alexander, with only seconds to react, then fatally

shot Mr. Bradford when he was just ten feet away from the men.

Only five seconds elapsed from the time of the first two gunshots

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to the time that Officer Alexander discharged his weapon, and only

about two to three seconds elapsed from the time Mr. Bradford

came into Officer Alexander’s line of sight to the fatal shots.

In our view, Officer Alexander was “‘forced to make [a] split-

second judgment[ ]’” as to whether Mr. Bradford posed a threat of

serious physical harm to others. See Kisela v. Hughes, 584 U.S. 100,

103 (2018) (quoting Graham, 490 U.S. at 396–97). “Perspec-

tive . . . is crucial to the analysis, and the only perspective that

counts is that of a reasonable officer on the scene at the time the

events unfolded.” Tillis ex rel. Wuenschel v. Brown, 12 F.4th 1291,

1299 (11th Cir. 2021) (internal quotation marks and citation omit-

ted). To a reasonable officer under the circumstances, Mr. Brad-

ford was not a “fleeing non-dangerous suspect in a non-violent

crime,” Powell v. Snook, 25 F.4th 912, 923 (11th Cir. 2022), or a Good

Samaritan trying to render assistance, but rather an armed man in

an enclosed crowded space, where gunshots had just been fired,

moving toward two men, one of whom appeared injured. Officer

Alexander, in other words, had probable cause to believe that Mr.

Bradford was the shooter and a serious threat even though he was

not in a “ready fire” position. See District of Columbia v. Wesby, 583

U.S. 48, 57 (2018) (explaining that probable cause is satisfied when

there is a “substantial chance of criminal activity”) (internal quota-

tion marks and citation omitted). Mr. Bradford was holding a gun

in his hand and at his side, and “there was nothing to prevent him

from shooting at the [two men] in an instant.” Garczynski v. Brad-

shaw, 573 F.3d 1158, 1169 (11th Cir. 2009).

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As to the need for a prior warning, we “have declined to

fashion an inflexible rule that, in order to avoid civil liability, an

officer must always warn his suspect before firing—particularly

where such a warning might easily have cost the officer his life.”

Penley v. Eslinger, 605 F.3d 843, 854 n.6 (11th Cir. 2010) (internal

quotation marks and citations omitted). Nevertheless, sometimes

the feasibility of providing a warning constitutes a disputed issue of

fact that a factfinder must resolve. For example, in Vaughan v. Cox,

343 F.3d 1323 (11th Cir. 2003), where the officer drove next to a

suspected stolen truck for 30 to 45 seconds, we held that a “reason-

able jury could conclude that [he] had the time and opportunity to

warn [the occupants of the truck] that he was planning to use

deadly force before he opened fire.” Id. at 1331. See also Adams v.

City of Cedar Rapids, 74 F.4th 935, 940 (8th Cir. 2023) (“Whether

Officer Trimble was able to forego the warning requirement be-

cause of a risk to his safety was a factual question in this case.”).

But feasibility is not always a disputed issue of fact. Our de-

cision in Davis v. Waller, 44 F.4th 1305 (11th Cir. 2022), is instructive

in this regard. In that case, an armed fleeing felon who had shot

his pregnant girlfriend hijacked a logging truck and kidnapped its

driver, forcing him to drive the truck toward a number of police

officers. The officers opened fire and shot the driver, who was the

hijacking victim. The driver sued the officers who shot him under

§ 1983, alleging excessive force. We affirmed the grant of summary

judgment in favor of the officers, holding that a warning was not

feasible under the circumstances and therefore not constitutionally

required: “Nor, on these facts, were the officers required first to

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issue a warning before using lethal force . . . To require an officer

to give a warning before firing a shot would have forced the officer

to place himself in the immediate path of an oncoming 84,000-

pound truck or the path of a potential bullet.” Id. at 1315.

We conclude that, under the circumstances he faced, Officer

Alexander did not have to issue a warning to Mr. Bradford. Stated

differently, the lack of a warning did not make the use of deadly

force excessive under the Fourth Amendment.

Officer Alexander testified at his deposition that it was phys-

ically possible to provide a warning in the span of a three-to-five

second timeframe, but a warning was not feasible under the cir-

cumstances. The feasibility of a warning is dependent on many

variables, two of which are the proximity of the danger to the of-

ficer or others and the time available to the officer. See, e.g., Salvato

v. Miley, 790 F.3d 1286, 1293 (11th Cir. 2015) (holding that an of-

ficer’s use of deadly force was excessive because the suspect was

“retreating, apparently unarmed, and outside of striking range”);

Robinson v. Arrugueta, 415 F.3d 1252,1256 (11th Cir. 2005) (uphold-

ing the use of deadly force against a person who was driving a car

towards the officer: “At the most, [Officer] Arrugueta had only 2.72

seconds to react to what he perceived as a threat of using physical

harm from Walters.”). Accord Seth W. Stoughton, Jeffrey J. Noble,

and Geoffrey P. Alpert, Evaluating Police Uses of Force 159, 167

(2020) (explaining that “[t]ime is the single most important tactical

concept in policing,” and that “[g]enerally speaking, the distance

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between the officer and the subject is inversely correlated with the

threat of physical harm”).

Here, both of these variables weigh against the feasibility of

a warning. First, at the time Officer Alexander fired his weapon,

Mr. Bradford was just ten feet away from the two men near the

railing and was running in their direction with a gun ahead of Of-

ficer Alexander and his partner. Second, Officer Alexander had

very little time to react; only five seconds elapsed from the sound

of the first two gunshots to his use of deadly force, and only two to

three seconds elapsed from the time Officer Alexander saw Mr.

Bradford running with a gun towards the two men. Mr. Bradford

was armed with a gun, and nothing prevented him from shooting

at the two men (or anyone else) in an instant. Cf. Swiford v. Santos,

121 F.4th 179, 190 (11th Cir. 2024) (“The officers did not use deadly

force until Thomas raised his gun in their direction. At that point

it was not feasible for them to warn Thomas because they were

forced to act. Given the circumstances and the split second that

officers had to decide whether to fire their weapons, we find no

error in the officers’ failure to verbally warn Thomas that they

would open fire.”).

We have not overlooked the opinion of Mr. Bloomfield, Ms.

Pipkins’ use-of-force expert. In an excessive force case a qualified

expert can testify about matters like the “prevailing standards in the

field of law enforcement.” Samples v. City of Atlanta, 916 F.2d 1548,

1551 (11th Cir. 1990). But in a summary judgment posture, “once

we have determined the relevant set of facts and drawn all

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inferences in favor of the nonmoving party to the extent supported

by the record, . . . the reasonableness of [the officer’s] actions . . . is

a pure question of law.” Scott, 550 U.S. at 381 n.8 (emphasis omit-

ted). Mr. Bloomfield’s opinion does not bind us on whether Officer

Alexander’s use of deadly force was constitutionally reasonable.

See Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013) (“The

Myers contend that a genuine issue of material fact barred a sum-

mary judgment because their expert testified that the force used by

Evans was excessive, but whether the force that Evans used was

excessive is a ‘pure question of law.’”) (citation omitted).

In sum, Officer Alexander did not violate the Fourth Amend-

ment when he fatally shot Mr. Bradford. The shooting was, as the

district court noted, undoubtedly tragic. But under governing

precedent it was not unconstitutional. 4

III

Ms. Pipkins also challenges the district court’s dismissal of

her state-law claims (negligence/wantonness and negligent/wan-

ton hiring, training, and supervision) against the Mall defendants.

She argues that the Mall defendants (1) violated their duty of care

4 Because there is no underlying constitutional violation , all of Ms. Pipkins’

other § 1983 claims (e.g., the municipal liability claims) “fail[ ] as a matter of

law.” Baker v. City of Madison, 67 F.4th 1268, 1282 (11th Cir. 2023) (citing cases).

And because his use of deadly force was reasonable under the Fourth Amend-

ment, Officer Alexander is entitled to state-law immunity for the state-law

claims against him. See Ala. Code §§ 6-5-338(a), 13A-3-23(d)(1); Ex parte Cran-

man, 792 So.2d 392, 405 (Ala. 2000).

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to protect Mr. Bradford as a shopper and invitee at the Galleria Mall

and (2) should have known that Officer Alexander and his partner

were incompetent in their roles as mall security guards.

We review a Rule 12(b)(6) dismissal de novo. See Colon v.

Twitter, Inc., 14 F.4th 1213, 1217 (11th Cir. 2021). We accept the

factual allegations in the operative complaint as true and view

them in the light most favorable to Ms. Pipkins. See Saunders v.

Duke, 766 F.3d 1262, 1266 (11th Cir. 2014). The question is whether

she has pled facts sufficient to make her state-law claims “substan-

tive[ly] plausibl[e].” Johnson v. City of Shelby, 574 U.S. 10, 12 (2014).

In Count V of the operative complaint, Ms. Pipkins alleged

on information and belief that Officer Alexander was hired by the

Mall defendants (by way of a contract with the City of Hoover) to

“provide security” at the Galleria Mall. See D.E. 46 at ¶¶ 75, 129.

We accept this allegation to be true, as a plaintiff can plead in the

alternative even if her claims are inconsistent. See Fed. R. Civ. P.

8(d)(2)–(3); Adinolfe v. United Tech. Corp., 768 F.3d 1161, 1175 (11th

Cir. 2014). With respect to the state-law claims we therefore treat

Officer Alexander as an off-duty policeman who was providing pri-

vate security at the Galleria Mall.

A

Ms. Pipkins alleged that the Mall defendants negligently and

wantonly breached their duty to protect Mr. Bradford, who was an

invitee at the Galleria Mall, from the unlawful conduct of Officer

Alexander. See D.E. 46 at ¶ 130. According to the complaint, the

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Mall defendants failed to, among other things, provide adequately

trained security; screen tenants, guests, and invitees so that security

would know who was lawfully carrying a weapon in the Galleria

Mall; or implement or enforce rules as to who could possess weap-

ons at the mall. The Mall defendants also allegedly failed to check

Officer Alexander’s training and background. See id. ¶¶ 132–33.

The district court dismissed Count V because the Mall de-

fendants owed no duty to Mr. Bradford. It explained that under

Alabama law there is no general duty to protect another from the

criminal acts of a third person. See D.E. 59 at 7–9. We agree with

the district court. 5

1

Ms. Pipkins alleged in conclusory fashion that the Mall de-

fendants “had a duty to protect patrons” at the Galleria Mall, in-

cluding Mr. Bradford, from harm “inside the premises.” D.E. 46 at

¶ 130. But under Alabama law the Mall defendants did not have a

general duty to protect Mr. Bradford from the allegedly wrongful

acts of Officer Alexander. In a number of premises liability cases,

the Alabama Supreme Court has consistently held that, absent spe-

cial relationships or circumstances, a business owner has no duty

5 We recognize that under Alabama law negligence and wantonness are dis-

tinct torts, with wantonness requiring a higher mental state. See T & J White,

LLC v. Williams, 375 So.3d 1225, 1230 (Ala. 2022); Smith v. Davis, 599 So.2d 586,

588 (Ala. 1992). But Ms. Pipkins has challenged the dismissal of Count V with-

out distinguishing between the two torts. We therefore do not address negli-

gence and wantonness separately with respect to Count V.

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16 Opinion of the Court 23-10814

to protect an employee, patron, or invitee from the criminal acts of

a third party. See, e.g., Latham v. Aronov Realty Co., 435 So.2d 209,

212–14 (Ala. 1983); Henley v. Pizitz Realty Co., 456 So.2d 272, 274–77

(Ala. 1984); Saccuzzo v. Krystal Co., 646 So.2d 595, 596–97 (Ala.

1994); Broadus v. Chevron USA, Inc., 677 So.2d 199, 202–04 (Ala.

1996); Baptist Mem’l Hosp. v. Gosa, 686 So.2d 1147, 1149–53 (Ala.

1996); Carroll v. Shoney’s Inc., 775 So.2d 753, 755–57 (Ala. 2000); Ex

parte Wild Wild West Soc. Club, Inc., 806 So.2d 1235, 1239–41 (Ala.

2001); New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 73–76 (Ala.

2004).

“For the ‘special relationship’ exception to apply, there must

be a relationship either between the premises owner and the third

party or between the premises owner and the plaintiff.” Saccuzzo,

646 So.2d at 596. Special circumstances exist only “where the ‘par-

ticular criminal conduct was foreseeable,” and the “number and

frequency of prior criminal acts at the place where the injury oc-

curred are used in determining whether a particular criminal act

was reasonably foreseeable. . . . When the number and frequency

of the crimes on the premises rises, and notice is shown on the part

of the owner, then, and only then, would criminal activity become

reasonably foreseeable.” Moye v. A.G. Gaston Motels, Inc., 499 So.2d

1368, 1317, 1372–73 (Ala. 1986) (citations omitted). The complaint

contained no factual allegations suggesting special relationships or

circumstances.

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2

Alabama courts have recognized a special relationship in a

few rare instances, such as where “the plaintiffs were completely

dependent upon the defendants for protection.” Finley v. Patterson,

705 So.2d 826, 828 (Ala. 1997). For example, in Young v. Huntsville

Hosp., 595 So.2d 1386, 1390 (Ala. 1992) (on rehearing), the Alabama

Supreme Court held that a special relationship exists between a

hospital and its sedated or anesthetized patient: “A hospital or

health care provider owes a duty to a sedated or anesthetized pa-

tient, who, because of such condition and the circumstances sur-

rounding it, is dependent upon the hospital or health care pro-

vider.” Ms. Pipkins has not alleged that Mr. Bradford, who was

lawfully armed while at the Galleria Mall, was wholly dependent

on the Mall defendants for protection.

The district court correctly ruled that, under Alabama law,

Mr. Bradford’s mere status as an invitee did not create a special re-

lationship with or duty on the part of the Mall defendants. Ala-

bama courts have expressly held that there is no special relationship

between a premises owner and its invitee. See Broadus, 677 So.2d

at 204 (“Broadus also argues that he was a business invitee of Chev-

ron and Larry Ayres d/b/a Regency Chevron and argues that a

‘special relationship’ existed between him and the defendants. As

above noted, no special relationship was established by the facts of

this case.”); Johnston v. Mr. Mini Mart No. 50, 744 So.2d 922, 926 (Ala.

Civ. App. 1999) (“As the trial court noted, there is no evidence in

this case of any ‘special relationship’ between the parties. A special

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18 Opinion of the Court 23-10814

relationship is not created by the fact that Mrs. Johnston and Sam-

ple were invitees at the Mini Mart store.”).

3

In her brief, Ms. Pipkins argues that there were special cir-

cumstances because it was foreseeable to the Mall defendants that

an untrained security officer would improperly respond to a person

with a gun at the Galleria Mall and cause injuries to others. But

Count V, which incorporated paragraphs 1–81 of the complaint,

contains no allegations whatsoever about foreseeability or about

any prior incidents of misconduct of any kind by either patrons or

visitors of the Galleria Mall or security guards who worked there.

Ms. Pipkins therefore has not plausibly pled foreseeability.

In Alabama foreseeability exists only when the owner of the

premises “knew or had reason to know of a probability of conduct

by [a third person] that would endanger the plaintiff.” Tenn Tom

Bldg. v. Olen, Nicholas & Copeland, P.C., 908 So.2d 230, 233 (Ala.

2005) (internal quotation marks and citation omitted). “Alabama

law requires a plaintiff to show three elements to establish a duty

that would be the basis” for a claim like the one here: “First, the

particular criminal conduct must have been foreseeable. Second,

the defendant must have possessed ‘specialized knowledge’ of the

criminal activity. Third, the criminal conduct must have been

a probability.” Id. (internal quotation marks and citation omitted)

(emphasis in original).

Under this demanding standard, notice of different illegal be-

havior at the premises, even if frequent, is insufficient. As we

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23-10814 Opinion of the Court 19

understand Alabama law, there must be notice of the specific crim-

inal conduct at issue. See Henley, 456 So.2d at 277 (holding that a

parking garage owner's notice of one battery upon an owner of a

car, six incidents of breaking and entering of cars, two robberies,

and seven thefts over a ten year period was insufficient to give rise

to a duty to protect a customer who was abducted from the park-

ing deck and raped); Ortell v. Spencer Companies, Inc., 477 So.2d 299,

300 (Ala. 1985) (holding that a convenience store owner’s notice of

five robberies, one assault with a weapon, one theft, and one bur-

glary on the premises in a three-year period was not sufficient to

impose a duty to protect a patron from a criminal’s kidnapping and

sexual assault); Moye, 499 So.2d at 1372 n.1 (holding that evidence

of one murder and one robbery of a guest in a hotel room in the 18

months preceding the homicide of an invitee outside the hotel after

a teen dance “would be insufficient as a matter of law to give rise

to a duty to protect [the invitee]”); Saccuzzo, 646 So.2d at 596–97

(holding that although “[i]n the 18 months preceding the shooting

of [the decedent], the police had been called to [the defendant's]

restaurant more than 160 times,” this “extremely high level of crim-

inal activity at [the restaurant] . . . could not impute knowledge to

[the defendant] of the probability of a criminal attack on [the dece-

dent],” particularly given that “[t]here had been no other shootings

in the 18 months”).

Under Alabama law, “[t]he bare chance that [a Good Samar-

itan] might be attacked by a security guard is not sufficient to im-

pose liability[.]” Wild Wild West Soc. Club, 806 So.2d at 1241. Given

that Count V does not mention foreseeability, and is bare of any

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20 Opinion of the Court 23-10814

allegations of past criminal activity (regardless of type) at the Gal-

leria Mall, Ms. Pipkins has not made out a plausible claim of special

circumstances.

B

The district court also dismissed Count VI, in which Ms. Pip-

kins alleged that the Mall defendants were negligent and wanton in

hiring, training, and supervising Officer Alexander as a security

guard. See D.E. 46 at ¶ 143. The district court reasoned that the

complaint “failed to allege any prior incompetence by [Officer] Al-

exander, much less that the [Mall defendants] were aware of [his]

alleged incompetence.” D.E. 59 at 11.

Ms. Pipkins argues that she included allegations concerning

“a host of training and policy deficiencies that resulted in the [Gal-

leria Mall’s] security personnel being collectively incompetent.”

Appellant’s Br. at 31. Again, we agree with the district court.

To state a claim for negligent hiring, training, and supervi-

sion, Ms. Pipkins had to sufficiently plead that “(1) the [Mall defend-

ants] hired, trained, or supervised an employee [Officer Alexander]

with an incompetency; (2) the [Mall defendants] knew of the in-

competency or would have learned of it by exercising due care; and

(3) the employee [Officer Alexander] caused [Mr. Bradford] harm

due to the incompetency.” Motley v. Express Services, 386 So.3d 766,

772–73 (Ala. 2023). “A mistake or single act of negligence on the

part of an employee does not establish incompetency[.]” Southland

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23-10814 Opinion of the Court 21

Bank v. A & A Drywall Supply Co., Inc., 21 So.3d 1196, 1216 (Ala.

2008). 6

Like Count V, Count VI incorporated the allegations set out

in paragraphs 1–81 of the complaint. The problem is that those

paragraphs do not come close to alleging that Officer Alexander

was incompetent when hired (or retained) as a security guard.

Officer Alexander was a policeman with the City of Hoover,

and the complaint alleges that law enforcement officials in Ala-

bama are taught that (a) citizens may lawfully possess concealed

handguns in the state with a permit, (b) citizens are lawfully per-

mitted to use deadly force to protect themselves and others from

serious injury or death, and (c) first responders and Good Samari-

tans usually move toward victims to assist them. See D.E. 46 at

¶¶ 54–55, 59. They are also taught to give clear verbal warnings

and/or commands to de-escalate and control possibly dangerous

situations. See id. ¶ 62. If Officer Alexander received all of this

training, it is difficult to see how the complaint plausibly alleged

that he—the employee who shot Mr. Bradford—was incompetent

or that the Mall defendants knew (or should have known) of the

incompetency.

6 With respect to wantonness, Ms. Pipkins had to sufficiently plead that “the

[Mall defendants] wantonly disregard[ed] [Officer Alexander’s] incompe-

tence[.]” Armstrong Bus. Services, Inc. v. AmSouth Bank, 817 So.2d 665, 682 (Ala.

2001). As with Count V, Ms. Pipkins has presented a single argument in favor

of reversal on Count VI and does not discuss negligence and wantonness sep-

arately.

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22 Opinion of the Court 23-10814

The complaint does allege, without any specifics, that the

Mall defendants “permitted [an] untrained [Officer] Alexander to

work as security without adequately checking his training and

background which in turn allowed [him] to shoot a first responder

and Good Samaritan,” i.e., Mr. Bradford. See id. ¶ 80.i. But it is

silent on what a more searching background check and investiga-

tion would have revealed about Officer Alexander’s purported in-

competency. As a result, the negligent/wanton hiring and reten-

tion claim in Count VI is not plausible. See Lane v. Cent. Bank of

Ala., N.A., 425 So.2d 1098, 1100 (Ala. 1983) (“‘Liability depends

upon its being established by affirmative proof that such incompe-

tency was actually known by the master or that, had he exercised

due and proper diligence, he would have learned that which would

charge him in the law with such knowledge.’”) (citation omitted).

IV

Christopher Fry, the English playwright, remarked that “[i]n

tragedy every moment is eternity[.]” Comedy, 4 Tulane Drama Re-

view 77, 77 (March 1960). Those words are both an accurate com-

ment about the human condition and a poignant truth about those

who have to bear the weight of calamity. But they do not negate

the undeniable reality that, as here, tragedy can strike in an instant.

In an effort to prevent harm to others, Officer Alexander

shot and killed Mr. Bradford, whom he mistakenly thought was the

shooter at the Galleria Mall. That use of deadly force, within sec-

onds of the initial gunshots, unfortunately and tragically took the

life of a Good Samaritan who was trying to render assistance.

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23-10814 Opinion of the Court 23

Given the circumstances, however, Officer Alexander acted rea-

sonably and did not violate the Fourth Amendment. The operative

complaint, moreover, did not state plausible claims against the

Mall defendants under Alabama law. The district court’s dismissal

and summary judgment orders are affirmed.

AFFIRMED.