In January 1996, Robert Avery Montgomery filed a five-count complaint against the City of Montgomery, numerous law enforcement officers, Gayfers Department Stores, Inc., and David Malcom. The complaint alleged false arrest, false imprisonment, malicious prosecution, a violation of Ala.Code 1975, § 15-10-3,
At about 5:00 p.m. on September 27, 1995, officers J.L. Burch and D.M. Sellers of the City of Montgomery Police Department went to 5740 Bridle Path Lane to execute warrants for the arrest of Robert E. Montgomery. These warrants charged Robert E. Montgomery with theft of property in the third degree and criminal trespass in the third degree.
The arrest warrants for Malcom's complaints were issued by Magistrate Heaton. Malcom wrote "Robert Emit Montgomery, 5740 Bridle Path Lane," on the affidavits/complaints. However, Heaton typed the name "Robert E. Montgomery" on the affidavits/warrants of arrest. Heaton stated in his deposition that the use of a middle initial in place of the full name is common practice in the Montgomery Municipal Court. Heaton explained that the abbreviation would usually be of little consequence, since the supporting affidavit always accompanies the warrant.
In fact, Robert Avery Montgomery resided at 5740 Bridle Path Lane. When the two officers arrived at Montgomery's house and came to the door, they were met by his mother, Carolyn Montgomery. Officer Burch asked if Robert Montgomery was home and his mother responded, "Robert Montgomery does live here," but she said that he was not at home at that time. Carolyn Montgomery then asked if there was a problem, and Burch explained to her that they had two warrants for her son's arrest. Thereafter, Mrs. Montgomery invited the men inside and said that she would call her son on the cell telephone and have him come home. Burch, who overheard Mrs. Montgomery's telephone call, stated in his deposition that she referred to her son as "Avery." In fact, he testified that Mrs. Montgomery used the name "Avery" several times in his presence. Burch concluded, however, that Mrs. Montgomery's son was, in fact, the person named in the arrest warrants because Mrs. Montgomery clearly understood who the officers were seeking when they first asked if Robert Montgomery lived there.
Both out of courtesy to Mrs. Montgomery and because the documents he carried did not contain a date of birth or a physical description of the suspect, Officer Burch telephoned David Malcom at Gayfers department store to get a physical description of the Robert Montgomery for whom the warrants had been issued. Malcom told Burch that Montgomery was a white male who stood about 5'11" and weighed roughly 170 pounds. Malcom further indicated that Montgomery had black hair that "was kind of curly and hung down" and that he frequently wore a baseball cap. Burch testified that Robert Avery Montgomery was wearing a baseball cap when they arrested him, and he noted that Malcom's description of the man to be arrested "matched [Robert Avery Montgomery] to a T." When the officers told Robert Avery Montgomery that they were there to arrest him, he claimed he had not stolen anything and that they were arresting the wrong man. Officer Sellers acknowledged that he and the Montgomerys may have had a discussion about Robert Montgomery's middle initial. Sellers, however, did not believe he could clarify this question by requesting further identification, since the young man admitted that he was Robert Montgomery and the officers found him at the address on the warrants. The policemen placed Robert Avery Montgomery in custody and transported him to the police station. He spent about four hours in jail while his mother made his bond.
The theft-of-property and criminal-trespass cases were called for trial in the Montgomery Municipal Court on December 5, 1995. At that time, David Malcom informed the trial court that Montgomery was not the person depicted in his store's security videotape and was not the person named in the arrest warrant. Thereafter, the court dismissed both charges against Robert Avery Montgomery.
Whether the Defendants Were Entitled to a Summary Judgment
Montgomery contends that the trial court erred by entering a summary judgment in favor of the defendants on the various causes of action raised in his complaint.
Ennis v. Beason, 537 So.2d 17, 19 (Ala. 1988).
Each of Montgomery's remaining causes of action arises out of his malicious-prosecution claim. As Roberts and Cusimano observe:
M. Roberts and G. Cusimano, Alabama Tort Law Handbook, § 27.0, p. 912 (1990). Accordingly, because the only cause of action properly raised in Montgomery's complaint is his malicious-prosecution claim, we need only to determine whether the trial court properly entered a summary judgment on that count.
Malicious prosecution is established by proving
Eidson v. Olin Corp., 527 So.2d 1283, 1284 (Ala.1988). The Eidson court further noted:
Id. For this reason,
Ford New Holland, Inc. v. Beaty, 602 So.2d 1198, 1202 (Ala.1992) (citing Eidson, supra, at 1285) (emphasis added).
Concerning the second element of a malicious-prosecution claim, the supreme court has explained:
Lynch v. Green Tree Acceptance, Inc., 575 So.2d 1068, 1069-70 (Ala.1991).
Where a claim of malicious prosecution originates from a prior criminal case, malicious or evil intent may be implied from circumstances in which a prosecution was begun for any purpose other than a bona fide purpose to bring an accused to punishment as a violator of the criminal law. National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133, 140 (Ala. 1983); Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969).
Viewing the evidence set out above in the light most favorable to Montgomery, we find it clear that Officers Burch and Sellers had probable cause to arrest Robert Avery Montgomery and that the trial court properly granted their motion for summary judgment. Eidson, supra; Ford New Holland, supra. His first name, last name, and address corresponded with the information shown on the arrest warrants and complaints, and his mother confirmed that "Robert Montgomery lived there." Finally, Robert Avery Montgomery closely matched the physical description that David Malcom gave to Officer Burch.
The trial court also properly entered the summary judgment in favor of the individual defendant D.E. Fike, who the plaintiff Montgomery alleged assisted in his arrest. Montgomery admitted in his deposition that Fike was not one of the officers who initially took him into custody, and Montgomery conceded that he did not even know who Fike was. The record reflects that the Fike was a correctional officer at the Montgomery Police Department. His job is processing inmates, booking and fingerprinting them, and serving them dinner. In fact, Fike had no involvement in Montgomery's arrest. Furthermore, a malicious-prosecution action cannot lie against a municipality, because a municipality cannot act with malice. Caldwell v. City of Tallassee, 679 So.2d 1125 (Ala.Civ.App.1996).
Whether The Defendants Are Entitled to Immunity Under § 6-5-338
Montgomery contends that the City of Montgomery and its police officers were not entitled to immunity under Ala.Code 1975, § 6-5-338, for their discretionary acts. He first argues that the acts of Officers Burch and Sellers were willful, were malicious, were taken in bad faith, or were simply illegal, and that these acts were not entitled to immunity under § 6-5-338. Finally, Montgomery appears to argue that § 6-5-338 grants immunity only to peace officers, but does not actually grant immunity to municipalities.
State officers and employees, individually and in their official capacities, are absolutely immune from suit when the action is, in effect, one against the state. Art. I, § 14, Ala. Const.1901; Phillips v. Thomas, 555 So.2d 81 (Ala.1989). The Alabama Constitution does not grant such immunity to municipalities and their agents. However, in 1994 the legislature enacted Ala. Code 1975, § 6-5-338, which provides, in pertinent part, as follows:
Id. (emphasis added).
Alabama law has defined "discretionary acts" as "`[t]hose acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take' and those requiring `exercise in judgment and choice and [involving] what is just and proper under the circumstances.' Black's Law Dictionary 467 (6th ed.1990); see
In White v. Birchfield, 582 So.2d 1085 (Ala.1991), a case decided before the enactment of Ala.Code 1975, § 6-5-338, the supreme court identified a number of factors a trial court may consider in determining whether a law-enforcement officer was performing a discretionary function. Those factors included: (1) the nature and importance of the function that the officer was performing; (2) the extent to which the imposition of liability would impair the free exercise of discretion by the officer; and (3) the likelihood that harm would result to members of the public if the action was taken. Employing this analysis, we think it clear that the decision to arrest the plaintiff was a discretionary function and that § 6-5-338 gave Officers Burch and Sellers immunity from liability.
In Couch v. City of Sheffield, 708 So.2d 144 (Ala.1998), a police officer arrested Couch for public intoxication. Couch was acquitted of the charge in the municipal court; he sued the officer and the City of Sheffield for intentional and malicious false imprisonment and false arrest, malicious prosecution, and a violation of his civil rights, seeking damages under 42 U.S.C. § 1983. The supreme court affirmed the trial court's entry of a summary judgment in favor of the defendants, noting that Couch had failed to rebut the officer's affidavit alleging that Couch's demeanor, his appearance, and his location outside a lounge reputed to be a hangout for drug users and dealers provided probable cause for the officer to arrest him. The supreme court further noted that § 6-5-338 extended discretionary immunity to a municipal police officer "unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in bad faith." Id. (citation omitted).
In Wright v. Wynn, 682 So.2d 1 (Ala. 1996), Wynn stopped in his daughter's driveway, got out of his vehicle, and walked onto her porch. At about the same time, Wright, a state trooper, had begun pursuing a speeding truck whose driver was trying to elude him. The truck pulled behind Wynn's vehicle and the driver got out and ran toward Wynn. Wynn called to the man, who did not stop; Wynn then chased him and threw a sling blade at him. Wright then got out of his car and ran toward Wynn with his gun aimed at him, and he threatened to shoot Wynn if he did not raise his hands. Wright cursed Wynn and prevented him from explaining what had happened, and when Wynn's son-in-law tried to explain who Wynn was, Wright told him to "`shut up and get [his] ass back in the house,'" or else that Wright would lock him up, as well. Thereafter, Wynn sought damages for false imprisonment and assault and battery. After a jury trial, Wynn was awarded $20,000.
In reversing the judgment of the trial court, the supreme court wrote, in pertinent part, as follows:
Id. (emphasis added).
We therefore hold that Officers Burch and Sellers were engaging in a discretionary function when they arrested the plaintiff and that therefore, under Ala. Code 1975, § 6-5-338, immune from liability. The facts relating to the identity of Montgomery that were available to the officers at the time of the arrest were conflicting. This sort of difficult identification is precisely the type of activity that the supreme court considered to be a "discretionary function" in Wynn, supra, and it will not give rise to liability. Furthermore, for the reasons set forth in Part I of this opinion, we hold that Burch and Sellers had probable cause to arrest the plaintiff. They did not act willfully, maliciously, or in bad faith, and their conduct was not illegal. Accordingly, Burch and Sellers were immune from liability pursuant to § 6-5-338. Furthermore, contrary to the arguments of Montgomery, the plain language of Ala.Code 1975, § 6-5-338(b), clearly extends discretionary-function immunity to the City of Montgomery, Burch and Sellers's employer.
City of Mobile v. Sullivan, 667 So.2d 122, 125-26 (Ala.Civ.App.1995).
Alabama courts have recognized that the "principles 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. Accordingly, we conclude that the City of Montgomery was also immune from liability under the provisions of Ala. Code 1975, § 11-47-190.
Therefore, the trial court's summary judgment in favor of the City of Montgomery and the police officers is affirmed.
YATES and THOMPSON, JJ., concur.
MONROE, J., concurs in the result.
ROBERTSON, P.J., concurs in the result only.