This is a classic example of judicial incompetence, crookedness (or both), the kind of thing we've experienced over and over from judges in the Northern District of Alabama. Our journey into the murky world of immunity begins on page 26 of Hopkins' Corrected Memorandum Opinion. (The opinion, our Rule 59 motion, and our two amendments to the Rule 59 are embedded at the end of this post.) Writes Hopkins:
Plaintiffs do not dispute that the defendants (Sheriff [Chris] Curry, Deputy Sheriff [Chris]Blevins, and Deputy Sheriff [Jason Valenti]) were acting in the course and scope of their employment when the complained-of touching allegedly occurred.
Hopkins is putting the burden of proof on the plaintiffs -- my wife, Carol, and me. The judge is claiming it was up to us to dispute that the sheriff and his deputies were acting in the "course and scope of their employment." (BTW, isn't it charming that Hopkins refers to Chris Blevins shoving me to a concrete floor three times and dousing me with pepper spray as "complained-of touching" that "allegedly occurred"?)
In essence, Hopkins turns the real law on its head, ruling in a way that is the opposite of what she is obligated to find under the law. We explain on page 2 of the Second Amendment to our Rule 59 Motion:
The Alabama Supreme Court, however, has adopted a burden-shifting framework for establishing a right to immunity, per Ex parte Estate of Reynolds, 946 So. 2d 450 (Ala., 2006): “A defendant initially bears the burden of demonstrating that he was acting in a function that would entitle him to immunity.” In this case, the defendants hold the burden of proving they were acting within the line and scope of their employment, and they have not come close to doing that, making dismissal on this issue improper.
Because the burden is on the deputies to prove they were operating within the line and scope of their employment, Alabama courts have held that immunity issues, such as those present in the Jail Case, cannot be determined without discovery. From our Second Amendment to the Rule 59 Motion:
In fact, the Alabama Supreme Court has held that a determination on immunity for deputies cannot be made without discovery, so again, dismissal is improper and outside the law. From Ex parte Haralson, 853 So. 2d 928 (Ala., 2009): “The Court cannot conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident, [the deputy] was acting within the line and scope of his employment, that [the deputy] is entitled to immunity.” No such evidence has been produced in the instant case, so the Shelby County sheriff officials are not entitled to a finding in their favor on immunity. At this early point in the proceedings, they definitely are not protected by any form of state immunity.
Blevins was wearing a uniform and driving a patrol car at the time he entered our property, so he had to be within the "line and scope" of his employment, right? Not necessarily, as these words from the Haralson opinion show. The case involved allegations that Officer Rufus Haralson caused a motor-vehicle crash that injured Lubie W. Griffith:
Deputy Haralson argues that he is entitled to immunity under the holding of Parker with respect to the performance of his official duties. In his reply brief to this Court, Deputy Haralson contends that he was "operating a [sheriff's department] vehicle, in uniform, and on sheriff's department business" at the time of the accident. However, the record presently contains no evidence as to whether Deputy Haralson was acting in his official capacity as a deputy sheriff at the time of the accident. As Griffith argues in her brief:
|Virginia Emerson Hopkins|
We cannot conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident he was acting within the line and scope of his employment, that Deputy Haralson is entitled to immunity. No State officer, such as a deputy sheriff, can avoid tort liability simply by claiming that his "`mere status as a [S]tate official cloaks him with the [S]tate's constitutional immunity.'" Phillips, 555 So.2d at 83 (quoting Barnes v. Dale, 530 So.2d 770, 781 (Ala.1988)); see also Mitchell, 598 So.2d at 806. It is conceivable that Griffith could prove facts that would show that at the time of the accident Deputy Haralson was on a personal errand or otherwise had departed from the line and scope of his employment. If so, Griffith "may possibly prevail" on her claims. See Nance, 622 So.2d at 299. Given the question presented by this mandamus petition—whether the trial court should have dismissed Griffith's claims against Deputy Haralson on the ground that he is entitled to State immunity—we conclude that Deputy Haralson has not shown that he has "`a clear legal right ... to the order sought.'" Butts, 775 So.2d at 178 (quoting Ex parte United Serv. Stations, Inc., 628 So.2d at 503).
Blevins and Co. have not shown a "clear legal right" to the order sought either, but Hopkins gave them one anyway. The Shelby County officers' actions were particularly egregious because they unlawfully entered our home to make an arrest. This violates U.S. Supreme Court precedent, as shown in our Second Amendment to Rule 59:
Speaking of warrants, the U.S. Supreme Court’s finding in Payton v. New York, 455 U.S. 537 (1980) “prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. The deputies’ entry into the Shulers’ home was warrantless and nonconsensual and did not involve a criminal arrest, much less a felony arrest.”
State law, at Code of Alabama 36-22-3(4), spells out the duties of sheriffs and their deputies -- and it shows officers in the Jail Case were operating way outside the line and scope of their employment. From our Second Amendment to Rule 59:
We already have evidence that Curry, Blevins, and Valenti acted outside the line and scope of their employment in the Shuler case. Code of Alabama 36-22-3(4) states: “It shall be the duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals and, insofar as within their power, to secure evidence of crimes in their counties and to present a report of the evidence so secured to the district attorney or assistant district attorney for the county." The duties of a sheriff and his deputies are described fully as involving crime – to “ferret out crime,” “apprehend and arrest criminals,” and to “secure evidence of crime.”
The relevant Alabama statute states in three places that, generally, the duties of sheriffs and deputies involve dealing with crime. Were Blevins and Co. dealing with crime when they broke into our home and beat me up? Not in the slightest:
In the instant matter, there was not even a whiff of a criminal allegation against Roger Shuler. He was targeted because of a complaint that was 100 percent civil – a bogus defamation claim brought by defendants Rob Riley and Liberty Duke, and their various lawyers. He was targeted because of a temporary restraining order and preliminary injunction that have been prohibited as unlawful prior restraints under more than 200 years of First Amendment law. (See Near v. Minnesota, 283 U.S. 697, 1931.) Nothing in Sec. 36-22-3(4) suggests it is within the deputies’ line and scope of employment to break into a citizen’s home, beat him up and douse him with pepper spray, and arrest him on a totally non-criminal matter – while never stating his purpose for being on the property (a violation of state law, under Code of Alabama 15-10-2) and never showing or stating that he possessed a warrant.
Blevins and Co. certainly have not shown, so far, that they were acting in the line and scope of their employment, in a manner that might merit state immunity. Sec. 36-22-3(4) suggests they are going to have a hard time proving that in the future -- assuming Hopkins or another judge in the Northern District is capable of acting with integrity.
The latest case law we can find from the U.S. Eleventh Circuit Court of Appeals shows the Alabama deputies will not be entitled to immunity at any point in the Jail Case. And a long line of Alabama case law shows that they cannot be immune for intentional wrongdoing.
(To be continued)
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