Opinion
No. 1031058.
Decided November 5, 2004.
Appeal from Jefferson Circuit Court, Bessemer Division (CV-02-626).
Michael Swan appeals from a summary judgment entered by the Jefferson Circuit Court in favor of the City of Hueytown based on Hueytown's defense of municipal immunity. We reverse and remand.
I. Facts and Procedural Background
On May 3, 2000, Michael Brandon Swan was a passenger in a pickup truck being driven by another person. Officer Ben Williams of the Hueytown Police Department pulled the vehicle over for a traffic stop. According to Swan, Officer Williams asked Swan for his driver's license, and Swan complied with Williams's request. Officer Williams testified in his deposition that he does not remember whether he took Swan's driver's license. Officer Williams radioed Swan's identifying information to the police dispatcher, who ran the information through the National Crime Information Center ("NCIC") database. The dispatcher told Officer Williams that the City of Birmingham had warrants outstanding on a Michael Swan.
In his deposition, Officer Williams claims he does not remember what information he gave the dispatcher. He states that it was either Swan's driver's license number, his name and date of birth, or his Social Security number.
Officer Williams then placed Swan under arrest and transported him to the Hueytown jail. Later, a Birmingham police officer arrived at the Hueytown jail and transported Swan to the Birmingham jail. After Swan had been waiting at the Birmingham jail, an officer informed Swan that there was in fact no valid outstanding warrant for his arrest. Accordingly, the Birmingham officer transported Swan back to the Hueytown jail, where he was released. Swan's incarceration lasted approximately four hours.
On May 3, 2002, Swan sued the City of Hueytown, alleging assault and battery, unlawful arrest and imprisonment, conversion of personal property, negligence, unskillfulness, and wantonness. During the course of the litigation, an arrest warrant issued by the City of Birmingham for a "Michael Swann" (with two n's) was produced, indicating a possible mistake on the part of the Hueytown police in arresting Swan. Hueytown moved for a summary judgment based on its claims of peace-officer immunity pursuant to § 6-5-338, Ala. Code 1975, and substantive immunity pursuant to § 11-47-190, Ala. Code 1975. The trial court, relying solely on § 6-5-338, granted Hueytown's motion, and Swan appealed.
The City of Birmingham and two fictitiously named parties were also named as defendants in Swan's complaint. Swan has since settled his claim against the City of Birmingham. He has not substituted any names for the fictitiously named parties, and, in his appellate brief, he does not address the liability of any party other than the City of Hueytown.
II. Standard of Review
In reviewing an order granting a motion for a summary judgment, we apply the same standard the trial court applied in ruling on the motion.Hoover, Inc. v. State Dep't of Revenue, 833 So.2d 32, 34 (Ala. 2002).
"`"To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present `substantial evidence' creating a genuine issue of material fact."'"
833 So.2d at 34 (quoting Payton v. Monsanto Co., 801 So.2d 829, 833 (Ala. 2001), quoting in turn Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala. 1999)). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).
III. Analysis A. Immunity Pursuant to § 6-5-338 i. Actions of Arresting Officer
Swan argues that his injuries resulted from Officer Williams's "failure to inspect and determine the true identity of the arrestee. . . ." (Swan's brief at 21-22.) Hueytown argues it is immune from liability pursuant to § 6-5-338, Ala. Code 1975. Section 6-5-338 provides, in relevant part:
"(a) Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.
"(b) This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. No immunity is extended hereby to any private non-governmental person or entity, including any private employer of a peace officer during that officer's off-duty hours."
Section 6-5-338 immunity, if applicable, extends not only to the individual officers, but to the governmental units employing those officers as well. Telfare v. City of Huntsville, 841 So.2d 1222, 1227 (Ala. 2002) ("Subsection (b) makes it clear that this immunity is extended to `governmental units or agencies authorized to appoint [law-enforcement] officers.'").
Section 6-5-338 gives municipal law-enforcement officers the same immunity afforded "officers of this state." The rules regarding such immunity were restated in Ex parte Cranman, 792 So.2d 392 (Ala. 2000). Therefore, the Cranman standard governs our analysis of § 6-5-338. SeeHoward v. City of Atmore, [Ms. 1021312, Dec. 12, 2003] ___ So.2d ___, (Ala. 2003) ("Since Cranman, we analyze immunity issues in terms of `State-agent' immunity, rather than `under the dichotomy of ministerial versus discretionary functions.' . . . Thus, we will address the applicability of peace-officer immunity under the principles set forth inCranman.") (quoting Ex parte Hudson, 866 So.2d 1115, 1117 (Ala. 2003)); but see Lee v. Minute Stop, Inc., 874 So.2d 505, 514 (Ala. 2003) ("Cranman applies to State-agent immunity, not to the immunity granted to police officers by § 6-5-338, Ala. Code 1975, but, assuming without deciding that the Cranman principles applied, we believe that the municipal police officers would be immune under the facts of this case."). So while § 6-5-338, which was adopted before Cranman was decided, speaks of "discretionary function[s]," our analysis is based on the factors defining the parameters of State-agent immunity as set forth in Cranman.
In Cranman, we restated the law of State-agent immunity as follows:
"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"(1) formulating plans, policies, or designs; or
"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
"(a) making administrative adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students."
Cranman, 792 So.2d at 405 (first emphasis original; second emphasis added). Accordingly, we must determine whether the conduct forming the basis of this action fits within the relevant category of the Cranman standard.
Paragraph 4 of the Cranman standard provides immunity to officers "exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons." 792 So.2d at 405 (emphasis added). At first glance, Officer Williams's conduct might appear to fit into this category. However, it is not only the decision to arrest that Swan states as the basis of Hueytown's liability, but also Officer Williams's alleged negligence in gathering and processing information that led up to the arrest. Therefore, the issue becomes whether Officer Williams was "exercising judgment in the enforcement of the criminal laws of the State" in gathering information to be run through the NCIC database, and in subsequently processing the results of that NCIC check. Because theCranman standard necessarily requires us to determine if the agent in question exercised judgment, cases applying the discretionary/ministerial dichotomy are helpful, but only if considered within the framework supplied by Cranman. This Court has defined discretionary functions as "those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996). It could be argued that there is no hard and fast rule as to how a law-enforcement officer is to proceed when gathering and relaying information to complete an NCIC check on a person the officer has stopped and how to proceed in comparing the results of an NCIC check with the characteristics of the suspect. However, it is possible to reduce almost any action to some sort of an exercise of judgment. See Ex parte Cranman, 792 So.2d at 404 ("[A]s long as the agent has not disobeyed clear instructions, almost any challenged conduct can be reduced to the exercise of some degree of judgment or discretion."). For example, inCity of Bayou La Batre v. Robinson, 785 So.2d 1128 (Ala. 2000), we held that a magistrate's error in faxing a warrant-recall order upside down, so that the recipient received only a blank sheet of paper, was not a discretionary action for purposes of immunity. In theory, one could argue, albeit unpersuasively, that the magistrate did indeed exercise judgment when she determined in what direction to insert the paper into the fax machine. See also Town of Loxley v. Coleman, 720 So.2d 907 (Ala. 1998), in which this Court held that a driver who was trying to avoid potholes in the road as she transported inmates from a work site to a prison was not engaged in a discretionary function. Town of Loxley preceded Cranman and was cited in that case as illustrative of a circumstance where neither judgment nor discretion was involved.Cranman, 792 So.2d at 404.
How an officer should proceed when gathering and relaying information in order to run an NCIC check on a suspect and how the officer should proceed in comparing the results of the NCIC check with the characteristics of the suspect are not the sorts of judgment contemplated by the Cranman standard. In Cranman, we expressed a dissatisfaction with such an interpretation of what constitutes a discretionary function, stating: "We cannot, in blind obedience to the doctrine of stare decisis, continue to accept an expansive application of caselaw characterizing as a discretionary function conduct remote from the execution of governmental policy; to do so would perpetuate an erroneous construction of the Constitution."
We therefore restated the law of State-agent immunity with an eye toward preserving its purpose of promoting a smoothly functioning government, while at the same time recognizing the right of citizens to seek redress for their injuries. The doctrine of immunity is not intended to give law-enforcement officers a free pass to act negligently and to disregard all procedural safeguards. It is intended to ensure that law-enforcement officers are free to make split-second decisions without fear of liability and thereby to protect the functionality of government. The conduct complained of in this case, i.e., Officer Williams's alleged misuse of the NCIC database, on which he based his arrest of Swan, did not involve the type of "split-second identification under difficult circumstances" law-enforcement officers are sometimes required to make in performing their duties, and for which they are immune from civil liability. Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996) (holding that an officer who made a decision as to whether the plaintiff was the suspect the officer was pursuing was entitled to immunity). See also Montgomery v. City of Montgomery, 732 So.2d 305 (Ala.Civ.App. 1999) (upholding immunity for an officer's decision to arrest the plaintiff after attempting to verify that the suspect named in the warrant was indeed the plaintiff). Because Officer Williams's actions did not involve the judgment contemplated by Cranman, Hueytown is not entitled to immunity from those actions under § 6-5-338.
ii. Actions of the Dispatcher
Swan also claims that the actions of the Hueytown Police Department dispatcher in using the NCIC database caused his unlawful arrest. Swan has not argued that a police dispatcher does not fit within the definition of "peace officer" to whom immunity is available under § 6-5-338. Therefore, we assume, without deciding, that a police dispatcher is a "peace officer."
See generally Howard v. City of Atmore, supra (holding that a sworn law-enforcement officer who was serving as a jailer/dispatcher while recuperating from surgery was a "peace officer" in the context of § 6-5-338).
In City of Bayou La Batre v. Robinson, supra, we held that a magistrate's failure to properly fax a warrant-recall order did not involve the type of judgment contemplated by Cranman that would shield the municipality from liability. We held that "the magistrate . . . was, when she faxed the warrant-recall order to the police department upside down, executing an administrative duty that did not involve the exercise of judgment." Bayou La Batre, 785 So.2d at 1133. As previously noted, we have also held that steering a police vehicle around potholes also does not involve judgment. Town of Loxley, 720 So.2d at 909. Accordingly, we hold that even if the dispatcher here is treated as a "peace officer," the dispatcher was executing an administrative duty not involving the type of judgment that would entitle Hueytown to immunity.
B. Substantive Immunity
In its motion for a summary judgment and in its brief to this Court, Hueytown argues that it is entitled to substantive immunity as set forth in Rich v. City of Mobile, 410 So.2d 385 (Ala. 1982). The Court in Rich created an exception to § 11-47-190; that Code section provides:
"No 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 engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. However, no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section 11-47-24, or otherwise, arising out of a single occurrence, against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total $100,000 per injured person up to a maximum of $300,000 per single occurrence, the limits set out in the provisions of Section 11-93-2 notwithstanding."
While the trial court based its summary judgment on § 6-5-338, and not on substantive immunity, "an appellate court can affirm a summary judgment on any valid argument, regardless of whether the argument was presented to, considered by, or even rejected by the trial court." Ex parte Ryals, 773 So.2d 1011, 1013 (Ala. 2000). This rule is subject to the exception that an appellate court will not affirm a summary judgment for a failure of the nonmoving party's evidence unless the summary-judgment motion properly challenged that failure of evidence. See Ex parte McCord-Baugh, [Ms. 1011067, April 2, 2004] ___ So.2d ___, (Ala. 2004); McKenzie v. Killian, [Ms. 1021616, March 5, 2004] ___ So.2d ___, (Ala. 2004); Hollis v. City of Brighton, [Ms. 1012381, January 9, 2004] ___ So.2d ___, (Ala. 2004); Liberty Nat'l Life Ins. Co. v. University Health Servs. Found., P.C., [Ms. 1012346, September 19, 2003] ___ So.2d ___, (Ala. 2003); andTanner v. State Farm Fire Cas. Co., 874 So.2d 1058, 1068 n. 3 (Ala. 2003). This exception is not applicable here. Accordingly, we address the substantive-immunity issue.
Historically, municipalities were considered immune from liability for the negligence of their agents in the performance of governmental functions, but not in the performance of proprietary functions. SeeDowney v. Jackson, 259 Ala. 189, 194, 65 So.2d 825, 828 (1953);McSheridan v. City of Talladega, 243 Ala. 162, 164, 8 So.2d 831, 832 (1942); and Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320 (1931). Acts that were considered exercises of governmental functions were those acts that were performed "for the common good of all." City of Bay Minette v. Quinley, 263 Ala. 188, 190, 82 So.2d 192, 194 (1955). See also Parr v. City of Birmingham, 264 Ala. 224, 226, 85 So.2d 888, 889 (1956).
This Court rejected the proprietary/governmental-function distinction and abolished municipal immunity in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). The Jackson Court, interpreting the predecessor to § 11-47-190, gave that statute its plain meaning. However, seven years later, this Court created a new exception to municipal liability. The exception the Court created applies to activities of governmental entities that are "so laden with the public interest as to outweigh the incidental duty to individual citizens." Rich, 410 So.2d at 387-88. That exception is to be applied "where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide . . . public services." 410 So.2d at 387.
The Rich Court emphasized the narrow application of the newly created exception to municipal liability, stating: "We emphasize . . . that only the narrowest of constructions of our instant holding will avoid violence to § 11-47-190 and its Jackson interpretation. . . ." 410 So.2d at 387. Because the exception to § 11-47-190 created in Rich is to be very narrowly applied, we decline to apply it in the instant case.
Hueytown relies upon Montgomery v. City of Montgomery, supra, for its argument that substantive immunity applies in this case. That case, however, is distinguishable from the instant one. In Montgomery, the Court of Civil Appeals held that the City of Montgomery was immune from liability based on its police officers' decision to arrest the plaintiff after the officers were confronted with conflicting evidence as to whether the plaintiff was indeed the suspect named in the warrant. The court stated:
"`[P]rinciples of substantive immunity are particularly applicable to a case such as this one, where an officer is required to make difficult decisions on the spur of the moment.' Flint v. City of Ozark, 652 So.2d 245, 246 (Ala. 1994). Officers must be allowed to make decisions based on the circumstances of the case rather than on the potential for personal liability."
732 So.2d at 312 (emphasis added).
In the instant case, Officer Williams was not required to make a split-second decision, and, in any event, it is not only Officer Williams's decision to arrest Swan that forms the basis of Swan's claim. It is also Officer Williams's alleged failure to make proper use of the NCIC database that resulted in Swan's injuries. Regardless, the Court of Civil Appeals' application of substantive immunity to the facts inMontgomery is not binding on this Court. See also Hollis v. City of Brighton, [Ms. 1012381, Jan. 9, 2004] ___ So.2d ___, (Ala. 2004) ("Substantive immunity, as it applies to police services . . . immunizes only decisions of the governing authorities of a municipality not to deploy police officers or not to deploy more police officers for a particular service. Substantive immunity does not immunize a municipality from vicarious liability for the tortious act of a particular police officer." (citations omitted)).
IV. Conclusion
Because the acts forming the basis of Swan's action against Hueytown do not involve the type of judgment contemplated by Cranman, the agents who committed those acts are not entitled to immunity under § 6-5-338, Ala. Code 1975. Because the agents who committed the acts complained of are not entitled to immunity, neither is Hueytown. Therefore, Hueytown was not entitled to summary judgment based on § 6-5-338. Likewise, because the acts forming the basis of Swan's action do not fit within the narrow substantive-immunity rule of Rich v. City of Mobile, Hueytown was not entitled to substantive immunity.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion. Whether Hueytown is ultimately liable for the conduct of Officer Williams and the dispatcher based on the facts submitted in the motion for a summary judgment is not before us, and our reversal of the summary judgment should not be read as an intimation of this Court's view on the merits of the ultimate issue of liability.
REVERSED AND REMANDED.
Nabers, C.J., and Houston, Johnstone, and Woodall, JJ., concur.
See, J., concurs in part and dissents in part.
Brown, Harwood, and Stuart, JJ., dissent.
I concur in that part of the main opinion that holds that the police dispatcher, who was executing an administrative duty, is not entitled to State-agent immunity. Otherwise, I would hold that the doctrines of State-agent immunity and substantive immunity apply in this case and that under those doctrines Hueytown is immune from liability; therefore, insofar as the main opinion holds otherwise, I respectfully dissent.
On May 3, 2000, Officer Ben Williams of the Hueytown Police Department pulled over a vehicle in which Michael Swan, the plaintiff, was a passenger. Officer Williams asked to see the driver's licenses of both the driver of the vehicle and Swan. Officer Williams radioed the police dispatcher who, using the information Williams gave him, searched the National Crime Information Center ("NCIC") database to determine whether there were any outstanding warrants on Swan. Officer Williams received from the dispatcher information that the City of Birmingham had two outstanding warrants on a Michael Swan. Later evidence indicated that the outstanding warrants were for a "Michael Swann." The dispatcher and Officer Williams apparently failed either to recognize or to react to the disparity in spelling between the two last names. Officer Williams arrested Swan and took him to the Hueytown jail. From there Swan was taken to the Birmingham jail. Sometime later, the City of Birmingham determined that there was no arrest warrant outstanding for Michael Swan and took him back to the Hueytown jail so that he could be released. Swan was released approximately four hours after the initial stop.
On May 3, 2002, Swan sued the City of Birmingham and the City of Hueytown. The City of Hueytown responded, asserting that it was immune from liability pursuant to §§ 6-5-338 and 11-47-190, Ala. Code 1975. On March 5, 2003, Hueytown moved for a summary judgment, and, on October 27, 2003, the trial court entered a summary judgment for Hueytown, relying solely on § 6-5-338, Ala. Code 1975. Hueytown appeals.
Swan has since settled his claims against the City of Birmingham.
Hueytown argues (1) that Officer Williams and the dispatcher are entitled to State-agent immunity pursuant to § 6-5-338, Ala. Code 1975, and (2) that Hueytown is entitled to substantive immunity as set forth inRich v. City of Mobile, 410 So.2d 385 (Ala. 1982).
Section 6-5-338(a), Ala. Code 1975, provides immunity from tort liability for any peace officer whose duties include
"the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state. . . ."
Such immunity from tort liability must arise out of the peace officer's performance of a discretionary function. § 6-5-338(a), Ala. Code 1975. Section 6-5-338(b), Ala. Code 1975, makes it clear that the immunity offered by that Code section is extended "only to peace officers and governmental units or agencies authorized to appoint peace officers.'"
The main opinion quotes Howard v. City of Atmore, [Ms. 1021312, Dec. 12, 2003] ___ So.2d ___, ___ (Ala. 2003), for the proposition that "`[s]ince [Ex parte] Cranman, [ 792 So.2d 392 (Ala. 2000),] we analyze immunity issues in terms of "State-agent" immunity, rather than "under the dichotomy of ministerial versus discretionary functions."'" This Court, in Ex parte Cranman, 792 So.2d 392 (Ala. 2000), held:
Under the discretionary-function/ministerial-act test, the Court had previously posed the immunity issue as follows:
"1) Is the suit against the individual State employee, in effect, a suit against the State? and 2) Under the allegations of tortious injury, is the employee defendant entitled to substantive immunity because she was engaged in the exercise of a discretionary public function?"
DeStafney v. University of Alabama, 413 So.2d 391, 395 (Ala. 1981).
"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"(1) formulating plans, policies, or designs; or
"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
"(a) making administrative adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
"(4) exercising judgment in the criminal laws of the State, including but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students."
792 So.2d at 405 (first emphasis in original; second emphasis added). The main opinion, however, applies a two-step test that I believe undercuts Cranman. See Ex parte Hudson, 866 So.2d 1115, 1122 (Ala. 2003) (See, J., dissenting).
"I dissented in Cranman because I was concerned that its application would intrude on the constitutional balance of powers embodied in the Constitution of Alabama 1901. Nonetheless, because the pre-Cranman discretionary function/ministerial duty test was itself a court-created test, when it became clear that the test set out inCranman had become the law of Alabama, I ceased dissenting in `Cranman cases.'" Ex parte Hudson, 866 So.2d 1115, 1122-23 (Ala. 2003) (See, J., dissenting) (footnote omitted). I now find myself dissenting when this Court effectively returns to the pre-Cranman discretionary-function/ministerial-act test Cranman purported to replace.
The main opinion states that Officer Williams's actions in arresting Swan are, at first glance, subject to immunity pursuant to paragraph 4 of the Cranman standard, which provides immunity to State agents "exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons." Cranman, 792 So.2d at 405. I agree.
The main opinion goes further, however, stating that "[h]ow an officer should proceed when gathering and relaying information in order to run an NCIC check on a suspect and how the officer should proceed in comparing the results of the NCIC check with the characteristics of the suspect are not the sorts of judgment contemplated by the Cranman standard." ___ So.2d at ___. Thus, the main opinion dissects a law-enforcement officer's actions, effectively applying the discretionary-function/ministerial-act test Cranman purported to replace.
Indeed, the main opinion states: "Because the Cranman standard necessarily requires us to determine if the agent in question exercised judgment, cases applying the discretionary/ministerial dichotomy are helpful, but only if considered within the framework supplied byCranman." ___ So.2d at ___.
"`A ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. It is performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.'" Ex parte Alabama Dep't of Forensic Sciences, 709 So.2d 455, 458 (Ala. 1997) (quoting 57 Am. Jur.2d Municipal, County, School and State Tort Liability § 119 (1988)). On the other hand,
"`[p]erformance of a discretionary function requires an exercise in judgment and choice as to what is proper and just under the circumstances. It involves the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. . . . A function is discretionary when it devolves to the officer to determine whether he should perform a certain act and, if so, in what particular way. If a public employee is required to decide and act without fixed or readily ascertainable standards, that act is a discretionary function."
709 So.2d at 458 (quoting 57 Am. Jur.2d Municipal, County, School and State Tort Liability § 119). Officer Williams's gathering of information in this case at least arguably entailed his use of discretion under that test. As I stated in my dissenting opinion in Hudson, the Cranman analysis "appeared to offer the benefit of an easy-to-apply, `bright-line' standard for determining whether an individual was covered by State-agent liability." 866 So.2d at 1123. The Court's decision today removes that benefit.
The main opinion recognizes that "it is possible to reduce almost any action to some sort of an exercise of judgment." ___ So.2d at ___. Similarly, I noted:
"[A]pplication of this two-part Cranman test as it is being applied today will mean that after sufficient discovery, a well-drafted pleading will survive a motion to dismiss on State-agent immunity grounds because some aspect of the State-agent's job will always be found to be ministerial. . . ."
Hudson, 866 So.2d at 1126 (See, J., dissenting).
In Hudson, according to this Court, the defendant "Hudson's activities [as purchasing foreman were] comparable to the activities referred to inCranman as a state agent's `exercising his or her judgment . . . [in] . . . allocating resources [or] negotiating contracts.'" 866 So.2d at 1119 (quoting Cranman, 792 So.2d at 405). Nonetheless, this Court held that Hudson's specific act of "[f]orwarding a maintenance manual [did] not fall within the parameters of the exercise of judgment" as set forth in Cranman. 866 So.2d at 1120. Similarly, in this case the main opinion states that Officer Williams's arrest of Swan would be subject to State-agent immunity pursuant to Cranman; however, the main opinion concludes that because Swan does not challenge his arrest and instead challenges Officer Williams's gathering of information leading up to his arrest, that act is not a discretionary duty contemplated by Cranman. This artful pleading is precisely what I was referring to when I stated in Hudson that "a well-drafted pleading will survive a motion to dismiss on State-agent immunity grounds because some aspect of the State-agent's job will always be found to be ministerial. . . ." Hudson, 866 So.2d at 1126 (See, J., dissenting).
The main opinion cites no authority or offers no guidelines clarifying what part of effectuating an arrest is or is not subject to Cranman. See Cranman, 792 So.2d at 405-06 (recognizing the need to balance the policies of promoting a smoothly functioning government with the citizens' right to seek redress for injuries). The main opinion does state that the law of State-agent immunity as stated in Cranman "is intended to ensure that law-enforcement officers are free to make split-second decisions without the fear of liability and thereby to protect the functionality of government." ___ So.2d at ___. I do not interpret Cranman as applying only to those situations where a police officer is required to make a split-second decision. Furthermore, I fail to see how Officer Williams's gathering of information in order to arrest Swan is "conduct remote from the execution of governmental policy." Cranman, 792 So.2d at 404. The main opinion cites no law, rule, or regulation to which Officer Williams did not adhere in arresting Swan. Moreover, it does not appear that Officer Williams acted willfully, maliciously, in bad faith, or otherwise beyond his authority in effectuating the arrest. See Hudson, 866 So.2d at 1119. Therefore, I believe that Officers Williams's arrest of Swan is entitled to State-agent immunity as provided in Cranman.
In Hudson, this Court stated:
"Under Cranman, a plaintiff attempting to pierce a defense of State-agent immunity would have to demonstrate that a State agent was not exercising his or her judgment in the manner set forth in the examples in Cranman; that the agent had violated the Constitution or the laws of the United States, or the Constitution or laws of Alabama or some regulation of this State; or that the agent had acted `willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.'"
866 So.2d at 1118 (quoting Cranman, 792 So.2d at 405).
Hueytown argues that it is entitled to substantive immunity as provided in Rich v. City of Mobile, 410 So.2d 385 (Ala. 1982). Rich affords immunity to municipalities "in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide . . . public services." 410 So.2d at 387. Hueytown also cites Montgomery v. City of Montgomery, 732 So.2d 305 (Ala.Civ.App. 1999), in which the Court of Civil Appeals held that a police officer who arrested the wrong person was entitled to substantive immunity because the officer was required to make his decision to arrest or to not arrest "`on the spur of the moment.'"Montgomery, 732 So.2d at 312 (quoting Flint v. City of Ozark, 652 So.2d 245, 246 (Ala. 1994)).
The main opinion distinguishes Montgomery from this case based on the conclusion that it is not solely Officer Williams's decision to arrest that forms the basis of Swan's claims and that Officer Williams was not required to make a split-second decision in this case. I do not interpretRich to apply only to split-second decision-making. Certainly, a substantial number of arrests made by police officers do not require split-second decision-making. Nonetheless, such an "imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide . . . public services." Rich, 410 So.2d at 387. Therefore, I would hold that Hueytown is entitled to substantive immunity.
Because I believe that Officer Williams is entitled to State-agent immunity and that Hueytown is entitled to substantive immunity, I respectfully dissent from that part of the main opinion holding otherwise.