The City of Birmingham (hereinafter referred to as "the City") appeals the trial court's denial of its preverdict and postverdict motions for judgments as a matter of law as to certain claims that had been asserted against it by John Charles Sutherland. Sutherland cross-appeals the trial court's judgment as a matter of law in favor of the City on other claims that he asserted. We reverse and remand as to the City's appeal and affirm as to Sutherland's cross-appeal.
On December 22, 1998, Sutherland sued the City, seeking to recover damages on claims of false imprisonment, "public ridicule" and defamation, and assault and battery arising from a June 27, 1997, incident at a Colonial Bank (hereinafter referred to as "the bank") located in Birmingham, in which Sutherland was accused by the bank's manager, Mark Renda, of passing two counterfeit checks. After an initial confrontation with Renda, Sutherland left the bank; he returned soon thereafter to discuss the accusation with Renda. When Sutherland returned, Renda was reporting to the University of Alabama at Birmingham ("UAB") Police Department, by telephone, his suspicion that Sutherland had passed counterfeit checks. The UAB Police Department then sent a radio dispatch to the Birmingham Police Department stating that there was a forgery suspect at the bank.
A "plain-clothes" police officer, Michael Wooten, was the first officer to arrive at the bank. When he arrived, Renda was still in his office and Sutherland was standing outside the office. Officer Wooten went to Renda's office, and Renda identified Sutherland as the suspect. Officer Wooten then arrested Sutherland by drawing his handgun, pointing it at Sutherland, and instructing him not to move. When additional officers arrived, Sutherland was handcuffed and seated in the bank lobby. He was later taken to the Birmingham Police administration building, where he was questioned and released within an hour; no charges were ever filed against him as a result of the arrest.
On January 20, 1999, the City filed an answer that asserted numerous defenses to Sutherland's complaint, including immunity under §§ 6-5-338 and 11-47-190, Ala. Code 1975. The City also asserted that there was no basis for liability on its part because, it argued, Wooten had probable cause to arrest Sutherland. Following discovery and court-ordered mediation, the City filed a motion for a summary judgment on August 11, 2000, with a supporting brief and exhibits. On August 29, 2000, Sutherland filed a response and a memorandum in opposition to the City's motion for a summary judgment, with attached exhibits. On October 31, 2000, the trial court entered an order on its case action summary that stated, in pertinent part:
On November 6, 2000, the City filed a motion requesting that the trial court reconsider its motion for a summary judgment; on January 8, 2001, it filed what it termed a "supplemental reply" to its motion to reconsider. On January 17, 2001, the City filed a motion to stay the trial of the case, which was set for January 22, 2001, to await a ruling by this Court on a writ of mandamus the City had also filed on January 17, 2001, in regard to the trial court's denial of a summary judgment to the City on all of Sutherland's claims. On January 22, 2001, this Court entered an order denying the City's petition for writ of mandamus.
The trial of the case began on January 22, 2001. At the close of Sutherland's case-in-chief, the City filed a motion for a judgment as a matter of law; the trial court denied that motion. The trial transcript shows that the City again made a motion for a judgment as a matter of law at the close of all evidence, and the trial judge granted it as to Sutherland's falseimprisonment claim, stating, in pertinent part:
On January 25, 2001, the jury returned a verdict for Sutherland in the amount of $115,000. Those damages were reduced by $50,000, the amount of a pro tanto settlement paid by Colonial Bank and Renda. (See footnote one of this opinion.) On February 23, 2001, the trial court entered a judgment against the City in the amount of $65,000. On that same day, the City filed a renewed motion for a judgment as a matter of law, or in the alternative, a motion to vacate the verdict, or a motion for a new trial; on March 9, 2001, the City amended its postjudgment motions to include additional grounds supporting its argument that it was entitled to a judgment as a matter of law based on the defenses of probable cause and discretionary immunity, and to include additional grounds supporting its argument that it was entitled to a new trial. On March 27, 2001, the trial court denied the City's renewed motion for a judgment as a matter of law and other postjudgment motions. On April 23, 2001, the City filed a notice of appeal; Sutherland filed a notice of cross-appeal on May 7, 2001.
In its appeal, the City argues that the trial court erred by not entering a summary judgment for it on all claims and by not granting its preverdict or postverdict motions for a judgment as a matter of law, on the grounds (1) that § 6-5-338, Ala. Code 1975, provides immunity to the City for what, it says, was Officer Wooten's exercise of a discretionary function; (2) that § 11-47-190, Ala.Code 1975, provides the City substantive immunity because, it says, Officer Wooten did not act negligently; (3) that the defense of probable cause is a defense to its liability, citing Couch v.
Sutherland cross-appeals the trial court's judgment as a matter of law for the City on his claim of false imprisonment. Sutherland argues that the trial court erred because, he says, the evidence concerning Officer Wooten's actions in making the arrest was in dispute.
Our review of the trial court's rulings on the City's preverdict and postverdict motions for a judgment as a matter of law is dispositive of this case. See Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994)("Ordinarily, any issue as to the denial of [a] summary judgment motion would be moot, because the sufficiency of the evidence at trial would be the significant question on appeal."). Our review of the grant or denial of a motion for a judgment as a matter of law is governed by the following standard:
"`The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as preverdict and postverdict motions for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court's ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.'"
The City first argues that § 6-5-338, Ala.Code 1975, provides it immunity for what, it says, was Officer Wooten's exercise of a discretionary function in arresting Sutherland. Section 6-5-338 states, in pertinent part:
(Emphasis added.) This Court has stated that "subsection (b) makes it clear that
In Telfare, supra, this Court further observed:
"`A State agent shall be immune from civil liability in his or her capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"`. . . .
"`(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 ....'
"Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000)(second emphasis added)."
___ So.2d at ___. "This Court has also held, however, that acts taken in bad faith, or willful or malicious conduct, will not be considered discretionary in nature." Ex parte City of Montgomery, 758 So.2d 565, 569 (Ala.1999)(citing Couch v. City of Sheffield, 708 So.2d 144, 153 (Ala.1998); see Wright v. Wynn, 682 So.2d 1 (Ala.1996); Barnes v. Dale, 530 So.2d 770 (Ala.1988); DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981)).
As a law-enforcement officer, Officer Wooten's power to arrest is governed by the laws of this State. This power is recognized in § 6-5-338(a), and the laws of this State provide reasonably well-defined rules governing when an officer may make a warrantless arrest—such as Officer Wooten's arrest of Sutherland. Rule 4.1(a), Ala. R.Crim. P., and § 15-10-3, Ala.Code 1975, provide the limited circumstances under which an officer may make a warrantless arrest. Rule 4.1(a) states:
"(a) Arrest by a Law Enforcement Officer.
in the law enforcement officer's presence or view, or
(Emphasis added.) Similarly, § 15-10-3(a), Ala.Code 1975, states:
We, therefore, apply these rules to our initial determination of whether Officer Wooten had the discretion to make a warrantless arrest of Sutherland. We note that these rules do not afford an opportunity to exercise discretion under certain circumstances (i.e., no probable cause to believe that a felony has been committed and that the person arrested committed it, or if no offense has been committed in the officer's presence). If the initial criteria for making a warrantless arrest were satisfied in this case, we would conclude that Officer Wooten's choices as to whether to make a warrantless arrest, and how to effect that arrest, represent discretionary functions. Accordingly, we consider whether Officer Wooten had probable cause to make a warrantless arrest of Sutherland.
Section 15-10-3(a) provides guidance in determining whether Officer Wooten had probable cause to arrest Sutherland. We note that our consideration of probable cause is also critical to Sutherland's cross-appeal, because the trial court's finding that Officer Wooten had probable cause for the arrest was the basis of its judgment as a matter of law for the City on Sutherland's claim of false imprisonment. Therefore, we will address both the discretionary-immunity subpart of the City's argument on appeal and Sutherland's cross-appeal.
The Court of Criminal Appeals, in Owen v. State, 418 So.2d 214 (Ala.Crim.App. 1982), equated the term "probable cause" with "reasonable cause," as that latter term is used in § 15-10-3. In Owen, the Court of Criminal Appeals observed:
"`An officer may arrest without a warrant when "a felony has been committed and he has reasonable cause to believe
"`"Probable cause exists where `the facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been committed...." (Citations omitted)
"`In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused committed or was committing an offense.'"
418 So.2d at 220 (quoting Tice v. State, 386 So.2d 1180, 1183 (Ala.Crim.App.1980)). See also Ex parte City of Montgomery, 758 So.2d at 570.
The record in this case shows that Officer Wooten went to the bank as a result of a dispatch sent out by the UAB Police Department. At trial, Rose Marie Sanders, the communications supervisor at the UAB Police Department who was the custodian of the department's radio logs and audio-tapes, testified as follows concerning the dispatch sent out to the Birmingham Police Department to which Officer Wooten was responding when he arrived at the bank:
Officer Wooten further testified as follows at trial, after a recording of the dispatch tape had been played:
Renda, the manager of the bank, also testified at one point that Officer Wooten, when he arrived at Renda's office, identified himself to Renda as a police officer, but later testified that Officer Wooten did
Under these circumstances, we conclude that Officer Wooten had probable cause to believe that a felony had been committed and that Sutherland had committed it.
Thus, the trial court erred in not finding that the City had discretionary-function immunity, i.e., immunity from tort liability arising out of Officer Wooten's conduct in the performance of a discretionary function within the line and scope of his lawenforcement duties in accordance with § 6-5-338, Ala.Code 1975, as a matter of law. The judgment of the trial court is therefore reversed, and the cause is remanded for the trial court to enter a judgment as a matter of law for the City on Sutherland's negligence and assault-and-battery claims. As to Sutherland's cross-appeal, we affirm the trial court's judgment as a matter of law for the City on Sutherland's false-imprisonment claim based on its finding, supported by the record, that Officer Wooten had probable cause to arrest Sutherland.
1001327—REVERSED AND REMANDED.
MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.
". . . .
"(b) Forgery in the second degree is a Class C felony."