HULL, Circuit Judge:
In this 42 U.S.C. § 1983 action, Plaintiffs-Appellants Joi Brown and Shaun Sonia bring federal and state claims for false arrest and excessive force. Plaintiffs appeal the district court's grant of summary judgment to the Defendants-Appellees— the City of Huntsville, Alabama (the "City"), and two police officers—on the basis of qualified immunity and state-law immunity. After review and oral argument, we affirm in part and reverse in part.
I. FACTUAL BACKGROUND
At this juncture, we outline the Plaintiffs' version of the events.
A. Brown's Arrest
On June 2, 2005, at around 8:30 p.m., Plaintiff Shaun Sonia arrived in his SUV at a Wal-Mart in Huntsville, Alabama. Several other passengers were in the SUV, including Travis Jones. Plaintiff Sonia parked near the entrance of the Wal-Mart. Sonia and his passengers went into the
Around 9:30 p.m., Plaintiff Brown arrived at the Wal-Mart to meet Travis Jones. Brown was driving a car actually owned by Jones. Brown admits she was playing "loud" music in the car as she arrived.
Around this time, members of the Madison-Morgan County Strategic Counterdrug Team (the "STAC Team"), including Defendants Sergeant Norris and Investigator Anderson, were conducting a drug bust resulting from an undercover drug buy in the Wal-Mart parking lot. The STAC Team was approximately 5-6 parking spots away from Brown's vehicle and could hear music coming from her car.
After speaking for a minute or two with Plaintiff Sonia and Travis Jones, Plaintiff Brown was told by a law enforcement officer to turn her music down. It is not clear which officer ordered Brown to turn down her music or how many times he made the request (witness accounts varied from one to three).
According to Plaintiff Brown, Norris then began yelling and acting "unprofessional[ly]" towards Brown. Brown "panicked" and started an audio recording of Norris's actions with her mobile phone. Brown informed Norris that she was recording him, stating, "[S]ir, I'm not recording your face, I'm recording the way you're talking to me, I'm a female, you don't have to talk to me like that."
Defendant Norris gave Plaintiff Brown clear instructions at least twice to step out of the vehicle, stating she was under arrest and should "get the fuck out the car." Brown initially had some trouble unlocking
At some point during the time in which Plaintiff Brown was attempting to get out of the car, Defendant Norris reached into the car window to retrieve Brown's mobile phone, including reaching between Brown's legs, where she had placed the phone. At around the same time, Travis Jones tried to help Brown get out of his vehicle. Norris told Jones that, "if he c[ame] any further, he w[ould] arrest him." Plaintiff Brown asked Plaintiff Sonia to "use [his] phone and record" Defendant Norris's actions.
Brown also told Norris that, "if you'll let me out of the vehicle—if you'll let me turn the car on, put it in park, I will get out of the vehicle." According to Brown, Norris then "paused for a minute." Brown eventually turned on the car's electrical system, put the car in park, and opened the door.
Plaintiff Brown put her foot and arm outside the car door, trying to get out of the vehicle.
Defendant Norris then sprayed Plaintiff Brown with pepper spray in her mouth,
Plaintiff Brown's phone was broken during this scuffle. Sonia and Brown both testified that Norris broke Brown's phone. Defendant Anderson testified that Brown held the phone in her hands under her body as she was placed face-down on the ground. Defendant Norris grabbed at the phone as he was trying to place handcuffs on Brown, and the phone snapped into two pieces. Sonia testified that he saw Norris take Brown's broken phone, put it in a bag with Sonia's phone, and place the bag on top of a car. According to Brown, an audio recording of her exchanges with Norris was saved to her cell phone. Brown was later told by someone in the police department that her phone was being held in evidence. The phone, including its recordings, was not returned to her.
Brown sustained burns to her face from the pepper spray and scrapes to her knee and elbows. Brown did not seek medical treatment for her injuries.
Defendant Norris arrested Plaintiff Brown for disorderly conduct and resisting arrest and transported her to jail. Brown was found guilty in the District Court of Madison County, Alabama of resisting arrest but not guilty of disorderly conduct. Brown appealed her conviction to the Circuit Court of Madison County. On November 29, 2006, while on appeal, state prosecutors nolle prossed Brown's resisting arrest charge.
B. Sonia's Arrest
Plaintiff Sonia also was arrested and claims his arrest violated his constitutional rights. Sonia walked out of Wal-Mart around 9:10 p.m. and noticed the STAC team conducting an undercover drug bust. Police Investigator Hudson, the agent in charge of the undercover drug buy, believed that the arrested drug suspects' supplier would be nearby. Sonia was standing near Brown's car when Defendant Norris told Brown to get out of the car.
Brown instructed Plaintiff Sonia to record what Defendant Norris was doing to her. Sonia complied by recording three 10-second video clips on his mobile phone. Investigator Hudson approached Sonia and requested the phone. Sonia told Hudson
Sonia does not dispute that Investigator Hudson was the one who told Sonia he was under arrest and that Hudson handcuffed Sonia. Travis Jones testified that, prior to Sonia's arrest, he saw Norris point at Sonia and say, "Arrest him, too." Sonia heard Norris state that both Sonia and Brown were "going to jail[.]" Sonia also testified, however, that he did not have any information suggesting that Norris knew at the time of the arrest that Sonia was being arrested.
Defendants Norris and Anderson both deny involvement in the decision to arrest Plaintiff Sonia. Norris contends he was focused on arresting Brown and was unaware of what was said between Sonia and Investigator Hudson.
Plaintiff Sonia claims Norris, Anderson, or Hudson deleted video evidence from his cell phone after it was taken during the arrest. Neither Defendants Norris nor Anderson took Sonia's cell phone from him at the scene; however, Sonia claims he witnessed Defendant Norris eventually obtain possession of his cell phone. When Investigator Hudson returned Sonia's cell phone to him the next day, two of the three video clips that Sonia had recorded of Brown's arrest were gone. Sonia testified, "I don't know who deleted it but I know when I got the phone back I only had one video." Investigator Hudson denies deleting, or even knowing of, any video clips.
Plaintiff Sonia was arrested and transported to jail. Investigator Hudson was the only officer who physically arrested and handcuffed Sonia at the Walmart parking lot. Once at the jail, however, Defendant Norris was the only officer present during Sonia's booking, and he completed the paperwork. Norris "initially  wrote harassment" as the charge against Sonia but changed the charge to "disorderly conduct." Both Investigator Hudson and Norris are listed as arresting
The disorderly conduct charge against Sonia was nolle prossed two months after Sonia's arrest.
C. District Court Proceedings
On May 31, 2007, Plaintiffs Brown and Sonia filed this § 1983 action against Defendants Norris and Anderson, individually, and against the City. Plaintiffs did not sue Investigator Hudson.
Plaintiffs' current amended complaint alleges four counts: (1) Brown's and Sonia's § 1983 claims for false arrest against Norris and Anderson;
Defendants moved for summary judgment on the basis of qualified immunity for Plaintiffs' § 1983 claims and state-law immunity for Plaintiffs' state-law claims. On May 14, 2009, the district court granted the Defendants' summary judgment motions. Brown v. City of Huntsville, No. 07-1013, slip. op. (N.D.Ala. May 14, 2009). Plaintiffs timely appealed.
We first outline the qualified immunity defense to § 1983 claims, then address each Plaintiff's § 1983 claims, and close by considering the Defendants' immunity from the state-law claims.
A. Qualified Immunity
"Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). A law enforcement officer is entitled to qualified immunity if "an objectively reasonable officer in the same situation could have believed that the force used was not excessive." Id. Qualified immunity from suit is intended to "allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citations omitted).
B. Brown's § 1983 False Arrest Claims
Plaintiff Brown argues Norris's arrest of her was not supported with arguable probable cause. The district court disagreed and granted qualified immunity to Norris for Brown's arrest. We affirm.
An arrest without a warrant and lacking probable cause violates the Constitution and can underpin a § 1983 claim, but the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.
To receive qualified immunity, an officer need not have actual probable cause, but only "arguable" probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir.2003); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.1997). Arguable probable cause exists where "reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest Plaintiff." Kingsland, 382 F.3d at 1232 (quotation marks omitted); accord Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir.1998); Gold v. City of Miami, 121 F.3d 1442, 1445-46 (11th Cir.1997) (disorderly conduct under Florida law); Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990). "Indeed, it is inevitable that law
Whether an officer possesses probable cause or arguable probable cause depends on the elements of the alleged crime and the operative fact pattern. Skop v. City of Atlanta, 485 F.3d 1130, 1137-38 (11th Cir.2007); Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Showing arguable probable cause does not, however, require proving every element of a crime. Scarbrough v. Myles, 245 F.3d 1299, 1302-03 (11th Cir.2001). If the arresting officer had arguable probable cause to arrest for any offense, qualified immunity will apply. Skop, 485 F.3d at 1138. Accordingly, we consider whether Defendant Sergeant Norris had arguable probable cause to arrest Plaintiff Brown for disorderly conduct.
Alabama law defines disorderly conduct as:
Ala.Code § 13A-11-7 (1975). Disorderly conduct is a Class C misdemeanor.
Defendant Norris had at least arguable probable cause to arrest Brown for disorderly conduct. The facts, even when viewed in the light most favorable to Brown, are that Brown arrived in the Wal-Mart parking lot in a vehicle playing admittedly "loud" music, stopped her car in the parking lot, rolled down the driver's side window to some extent, and spoke out of the window to Jones while the music still was playing. Brown's music was loud enough that Sergeant Norris and Investigator Anderson, who were at the time several parking spots away from her vehicle, heard the music. Lieutenant Winn, Investigator Hudson, and Investigator Leftwich also heard loud music. The playing of loud music is a willful act. Sergeant Norris testified that he had to tell Brown three times to turn her music down. Brown admits she was told once and that her music was loud and that it was possible she was told a second or third time, but she did not hear it. Brown at least once had to ask Travis Jones to repeat what was said to her by a law enforcement officer outside her car, providing some context for how loud her music must have been.
In short, we look only to whether a reasonable officer, knowing what Sergeant Norris knew at the time, objectively could have believed probable cause existed. We conclude Brown's actions in playing loud music, stopping her car, and rolling her window down could have indicated to an objectively reasonable officer at the scene that Brown was making unreasonable noise with intent to create public annoyance, even if those circumstances were insufficient to prove an actual violation of § 13A-11-7. See, e.g., Hutchins v. City of Alexander City, 822 So.2d 459, 462 (Ala. Crim.App.2000) (finding prima facie case of disorderly conduct where defendant made unreasonable noise in public area of police station). The district court consequently did not err in determining Sergeant Norris was entitled to qualified immunity on Plaintiff Brown's § 1983 claim for false arrest.
Plaintiff Brown's false arrest claim against Defendant Anderson also fails. Norris, not Anderson, made the decision to arrest Brown. Brown does not identify any conduct of Defendant Anderson that would support a false arrest claim against him. In any event, there was arguable probable cause for Brown's arrest. While Anderson also assisted Norris in removing Brown from the vehicle, we consider that conduct in our discussion of Brown's excessive force claim. Qualified immunity applies to Defendant Anderson for Brown's false arrest claim.
C. Sonia's § 1983 False Arrest Claims
It is undisputed that Investigator Hudson, whom Sonia did not sue, was the officer who witnessed Sonia's behavior and actually arrested and handcuffed Sonia and signed the criminal complaint against Sonia. The district court did not err in granting qualified immunity to Defendants Norris and Anderson because they did not participate in Sonia's arrest and were not
To establish § 1983 liability, a plaintiff must show "proof of an affirmative causal connection" between a government actor's acts or omissions and the alleged constitutional violation, which "may be established by proving that the official was personally involved in the acts that resulted in the constitutional deprivation." Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir.1986). Merely being present with the arresting officers at the scene is not enough, unless the plaintiff can show that the defendant officer was part of the chain of command authorizing the arrest action.
Here, the facts do not show personal participation by Defendants Norris or Anderson in Sonia's arrest. Viewed in the light most-favorable to Plaintiff Sonia, while Defendant Norris was arresting Plaintiff Brown, he said "arrest [Sonia], too."
Accordingly, the district court did not err in granting qualified immunity to Defendants Norris and Anderson on Sonia's § 1983 claims for false arrest.
D. Brown's § 1983 Excessive Force Claim
Plaintiff Brown claims Defendants Norris and Anderson used excessive force during her arrest.
"The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest." Lee, 284 F.3d at 1197 (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989)). "`Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.'" Lee, 284 F.3d at 1197 (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1871-72). But while some force is permitted in effecting an arrest, whether the force is reasonable depends on "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental
A law enforcement officer receives qualified immunity for use of force during an arrest if an objectively reasonable officer in the same situation could have believed the use of force was not excessive. Id.; Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872; Lee, 284 F.3d at 1197. "Use of force must be judged on a case-by-case basis `from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir.1993) (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1872), modified, 14 F.3d 583 (11th Cir.1994). We judge use of force solely on an objective basis, and we do not consider an officer's subjective belief. Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir.2008).
"To balance the necessity of the use of force ... against the arrestee's constitutional rights, a court must evaluate several factors, including ` the severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight.'" Vinyard, 311 F.3d at 1347 (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1872). "Our cases hold that gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force." Hadley, 526 F.3d at 1330.
On several occasions, this Court has evaluated the use of pepper spray during an arrest. In Vinyard v. Wilson, we reversed a grant of qualified immunity to an officer who used pepper spray on an arrestee. The plaintiff was under arrest for disorderly conduct and detained in the back of a police car, with her hands cuffed behind her back and with a glass or plastic partition separating the officer from the arrestee. Vinyard, 311 F.3d at 1349, 1355. To stop the arrestee from returning the officer's exchanges of obscenities and insults during a four-mile ride to the jail, the officer stopped his car, grabbed the arrestee's arm and hair, and sprayed her in the face with two or three bursts of pepper spray. Id. at 1343. This Court held that this use of force clearly exceeded the Fourth Amendment's excessiveness threshold. Id. at 1348, 1355 ("Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else."). We based our holding on all Graham factors weighing in favor of the plaintiff arrestee: (1) her crime of disorderly conduct was minor; (2) under her version of the facts, she was secured and was not posing a safety threat to the officer, herself, or others; and (3) she did not resist arrest or attempt to flee. Id. at 1347-48.
We later applied Vinyard's holdings in Reese v. Herbert, 527 F.3d 1253, 1273-74 (11th Cir.2008), denying qualified immunity to officers who used pepper spray in the face of an arrestee who "was lying face down on the ground, was not suspected of having committed a serious crime, did not pose an immediate threat of harm to anyone, and was not actively resisting or evading arrest...." Id.
Given the facts in the light most favorable to Brown, the district court improperly granted summary judgment to Defendant Norris on Brown's excessive force claim. Under Brown's version, Norris's actions in effecting the arrest constitute excessive force. Each Graham factor supports Brown. First, Brown was not arrested for a serious crime. Second, Brown did not pose a threat to anyone's safety. Third, under Brown's account of the facts, she was cooperative, was not resisting arrest, and was not attempting to flee. She complied with Defendant Norris's requests and attempted to get out of the vehicle but was delayed by the door locks, which she clearly communicated to Norris. Brown then had actually opened the door and was getting out when Norris pushed her back in the car and sprayed her. Norris's subjective beliefs are not relevant. What we consider instead is what an objectively reasonable officer in Norris's situation would have believed, taking as true Brown's testimony. Given that Brown had submitted to Norris's authority, was getting out of the car to be arrested, and posed no threat, Norris's conduct in pushing her back into the car, gratuitously using pepper spray, and then slamming her to the pavement, was excessive force that violated Brown's constitutional rights.
Furthermore, an objectively reasonable police officer would have known it was unlawful to use pepper spray and other force against an arrestee who was suspected only of a minor offense (playing music too loud), was not threatening the officer or the public, was not attempting to flee, and who had communicated her willingness to be arrested. Although the law
The district court accordingly erred in granting qualified immunity to Defendant Norris on Brown's excessive force claim.
As to Defendant Anderson, however, there is some question over whether Plaintiff Brown even sued Anderson for excessive force. We need not resolve that issue. There is no evidence that Anderson used any pepper spray. Anderson at most assisted Norris in pulling Brown out of the car, which in this case is a permissible use of force in effecting an arrest. A law enforcement officer's right to arrest necessarily carries with it the ability to use some force in making the arrest. Lee, 284 F.3d at 1197-98. For even minor offenses, permissible force includes physical restraint, use of handcuffs, and pushing into walls. See Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir.2000) ("[T]his Circuit has established the principle that the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment."); Lee, 284 F.3d at 1200 (citing cases permitting use of handcuffs); Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir.1997) (no constitutional violation to slam plaintiff against wall, kick plaintiff's legs apart, and require plaintiff to raise arms above his head); Gold, 121 F.3d 1442 at 1446-47 (no constitutional violation for arresting plaintiff for disorderly conduct and affixing handcuffs too tightly); Post, 7 F.3d at 1559-60 (not excessive force to arrest plaintiff for building code violation by pushing him up against wall and applying chokehold to unresisting plaintiff while affixing handcuffs). Because Anderson was permitted to use some force in arresting Brown, Brown has not shown Anderson's conduct in forcibly removing Brown from the car violated her constitutional rights.
E. Plaintiffs' State-Law Claims
Plaintiffs Brown and Sonia argue the district court erred in granting the Defendants immunity from Plaintiffs' state-law claims. Brown and Sonia asserted state-law claims for false arrest/false imprisonment against Defendants Norris, Anderson, and the City. Brown also asserted a claim for assault and battery/excessive force against these Defendants.
Under Alabama law, "[s]tate-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities." Ex parte Hayles, 852 So.2d 117, 122 (Ala.2002). In Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality of the Alabama Supreme Court restated
There is also statutory, discretionary-function immunity in Alabama. Specifically, § 6-5-338 of the Alabama Code contains a provision immunizing law enforcement officers from tort liability for conduct within the scope of their discretionary law enforcement duties. Ala.Code § 6-5-338(a) (1994) ("Every peace officer ... 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."). Cranman's test for state-agent immunity governs whether law enforcement officers are entitled to statutory, discretionary-function immunity under § 6-5-338(a). Ex parte City of Tuskegee, 932 So.2d 895, 904 (Ala.2005) ("The restatement of State-agent immunity as set out in Cranman, 792 So.2d at 405, now governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a)."). So for our purposes, the question of whether City police officers Defendants Norris and Anderson receive immunity for Plaintiffs' state-law claims depends on application of Cranman's state-agent immunity test.
The Alabama Supreme Court established a burden-shifting framework for application of the state-agent immunity test. A defendant initially bears the burden of demonstrating that he was acting in a function that would entitle the agent to immunity. Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006). "If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority." Id.
Turning to the claims against Defendants Norris and Anderson, there is no dispute that both Norris and Anderson were acting within the scope of their discretionary functions as law enforcement officers; Plaintiffs admitted as much in their brief opposing summary judgment. ("Making an arrest is a discretionary function."). Plaintiffs thus bear the burden of showing that Defendants Norris and Anderson acted willfully, maliciously, fraudulently, in bad faith, beyond their legal authority, or under a mistaken interpretation of the law.
As to Plaintiff Brown's false arrest/false imprisonment claim, we conclude Brown has not met this burden. The Alabama Supreme Court has applied the same "arguable probable cause" standard utilized in this Court's federal qualified immunity cases for determining whether a city police officer receives state-agent immunity for his role in an arrest. Borders v. City of Huntsville, 875 So.2d 1168, 1180 (Ala.2003) ("If ... a jury question exists as to whether [the officer] acted with arguable probable cause, [then] the summary judgment [to the officer] must be reversed."). As held above, Defendants Norris and Anderson receive qualified immunity for their conduct in arresting Brown because the facts, construed in the light most favorable to Brown, show that they had arguable probable cause to arrest Brown. Defendants Norris and Anderson receive both state-agent and statutory, discretionary-function
Plaintiff Brown's assault and battery/excessive force claim against Defendants Norris and Anderson presents a closer question, but, similar to our reasoning for denying Defendant Norris qualified immunity for his use of pepper spray and other force against Brown, Defendant Norris also does not receive state-agent or statutory, discretionary-function immunity for that conduct. Construing the facts in the light most favorable to Plaintiff Brown, Defendant Norris's use of pepper spray and other force against Plaintiff Brown was done intentionally, gratuitously, and in violation of Plaintiff Brown's clearly established constitutional rights, supporting an inference that Norris acted willfully and in bad faith. In contrast, Defendant Anderson's use of force against Plaintiff Brown does not constitute a constitutional violation, and neither does it show the required willfulness, maliciousness, fraud, or bad faith necessary to deny Anderson state-agent and statutory, discretionary-function immunity.
As to Plaintiff Sonia's false arrest/false imprisonment claim, Sonia has not carried his burden to show facts supporting willful, malicious, or bad faith actions by Defendants Norris and Anderson. Hudson, not Norris or Anderson, actually arrested and handcuffed Sonia. At most, Norris allegedly said "arrest" Sonia, but given that Norris had no authority over Hudson, that alone is insufficient to strip away Norris's state-agent and statutory, discretionary-function immunity.
Finally, the district court correctly granted summary judgment to the City from both Plaintiffs' state-law false arrest/false imprisonment claims and Brown's state-law assault and battery/excessive force claim. "[U]nder principles of vicarious liability, where a municipal employee enjoys immunity, the municipality likewise is immune as to claims based on the employee's conduct." City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala.2000). In cases such as this where the "municipal employee" is a law enforcement officer, Alabama's statutory, discretionary-function immunity explicitly extends an officer's immunity to the employing municipality. Ala.Code § 6-5-338(b) ("This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers.") (emphasis added); Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala.2000) (concluding § 6-5-338(a) gave officer discretionary-function immunity and "[t]he plain language of § 6-5-338(b)... extends that discretionary-function immunity to the City"); Borders, 875 So.2d at 1183. Because we find that Norris and Anderson are entitled to statutory, discretionary-function immunity for Brown's and Sonia's false arrest/false imprisonment claims, § 6-5-338(b) extends that immunity to the City as well.
As to Brown's assault and battery/excessive force claim, however, Norris is not entitled to statutory, discretionary-function immunity, and thus § 6-5-338(b) cannot immunize the City. The City instead relies on another statute providing that Alabama cities are not vicariously liable for the torts of their agents, unless the agent acted with "neglect, carelessness, or unskillfulness." Ala.Code § 11-47-190 ("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 ...."); see Hardin v. Hayes, 52 F.3d 934, 939 n. 9 (11th Cir.1995) ("§ 11-47-190 imposes respondeat
Complicating matters is Borders, 875 So.2d at 1183, where the Alabama Supreme Court held that where it was unclear whether the plaintiff's claims for "assault and battery, false imprisonment and false arrest," actually asserted "vicarious liability for an intentional tort against the City," § 11-47-190 would not immunize the City "where a plaintiff alleges a factual pattern that demonstrates neglect, carelessness, or unskillfulness." Id. (quotation marks omitted). In this case, however, all of Brown's evidence indicated that Norris's use of pepper spray and other force against her was intentional, as opposed to neglectful or careless. The factual issues in this case are not over whether Norris's acts were intentional, but over what Brown did or did not do before Norris acted, the extent of force Norris used, and whether Brown's actions justified Norris's use of force in response.
In sum, we affirm in part and reverse in part the district court's order, dated May 14, 2009, granting qualified and state-law immunities to Defendants Norris and Anderson and the City. We conclude: (1) Defendants Norris and Anderson are entitled to qualified immunity from Plaintiffs Brown's and Sonia's federal false arrest claims and state-agent and statutory, discretionary-function immunity from Brown's and Sonia's state-law false arrest/false imprisonment claims; and (2) Defendant Anderson is entitled to qualified immunity from Brown's § 1983 excessive force claim and to state-agent and statutory, discretionary-function immunity from Brown's state-law claim for assault and battery/excessive force. We reverse the district court's summary judgment order granting to Norris (1) qualified immunity from Brown's § 1983 excessive force claim and (2) state-agent and statutory, discretionary-function immunity from her state-law assault and battery/excessive force claim. Finally, we affirm the district court's grant of immunity to the City from Plaintiffs' state-law false arrest/false imprisonment and assault and battery/excessive force claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.