Ex parte Purvis
- Reporters:
- , ,
- Before:
- Maddox
MADDOX, Justice.
There is but one legal question presented in these mandamus petitions filed by former Mobile County Sheriff Thomas J. Purvis and former Deputy Sheriff Allan Scott: Are they immune from liability in an action filed by a woman who was shot by a fugitive who had avoided capture?
The facts are not seriously disputed. On June 28, 1994, Jimmie Whitt shot and killed a Mississippi law enforcement officer. A BOLO (“be on the lookout“) radio message was broadcast and was received by Alabama law enforcement officers in and around Mobile.
Whitt later went to Bay Minette, where he attacked Donna Akers while she sat in her automobile with her mother and daughter at a McDonald‘s restaurant drive-through line. Mrs. Akers was shot in the head and suffered severe permanent injuries. She sued Sheriff Purvis and Deputy Scott, claiming that both were responsible for implementing and enforcing appropriate policies and procedures for approaching, detaining, and apprehending dangerous fugitives; that they had failed to carry out their duties; and that their failure had proximately caused her injuries. Mrs. Akers‘s husband, Mark Hankins Akers also sued, alleging a loss of consortium.
In response to a motion to dismiss, the trial court entered an order on April 18, 1996, dismissing four counts of the first amended complaint, which sounded in negligence and wantonness. However, citing Spring Hill Lighting & Supply Co. v. Square D Co., 662 So. 2d 1141 (Ala.1995), the court refused to dismiss counts five, six, seven, and eight, which allege willful conduct by Sheriff Purvis and Deputy Scott.1
Defendants Purvis and Scott both have petitioned for a writ of mandamus directing the trial court to grant their motions to dismiss the remaining counts of the plaintiffs’ complaint. They argue in their petitions that they are entitled to sovereign immunity as to those counts. The plaintiffs have moved to dismiss Purvis and Scott‘s petitions, arguing that the trial court correctly held that sovereign immunity did not apply to the claims of willful conduct, and that mandamus is not the appropriate remedy for reviewing the trial court‘s ruling, citing this Court‘s decision in Ex parte Franklin County Department of Human Resources, 674 So. 2d 1277 (Ala. 1996).
We first address the Akerses’ claims that a mandamus petition is not the appropriate method for seeking review of the trial court‘s action. Purvis and Scott asked the trial court to give the certification required by
It is undisputed that Purvis and Scott were both acting within the line and scope of their employment when Whitt made his escape that led to the shooting of Mrs. Akers. Based on the record, we must conclude that Purvis and Scott have clearly shown that each of them is immune from suit under the provisions of
Although we recognize that this Court, in Spring Hill Lighting did reaffirm the principle that “`a state officer or employee is not protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law,‘” 662 So. 2d at 1148, quoting Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.1989), none of the exceptions to sovereign immunity listed in Spring Hill Lighting applies here. In the first place, Spring Hill Lighting did not deal with claims against a sheriff and a deputy sheriff or other constitutional officer, but instead
In Alexander v. Hatfield, 652 So. 2d 1142 (Ala.1994), this Court held that a deputy sheriff is afforded the same immunity from suit as a sheriff in regard to claims for monetary damages stemming from activities performed while working in the line and scope of his or her employment.
Based on the foregoing, the petitions are due to be granted.
MOTIONS TO DISMISS PETITIONS DENIED; WRITS GRANTED.
HOOPER, C.J., and ALMON, SHORES, and COOK, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
“The wall of `government immunity’ [i.e., sovereign immunity under
Art. I, § 14, Constitution of Alabama of 1901 ] is almost invincible, made so by the people through their Constitution as interpreted by this Court.”
In Parker v. Amerson, 519 So. 2d 442, 442-43 (Ala.1987), this Court specifically held:
“[U]nder
Article I, § 14, Alabama Constitution of 1901 , [the only exceptions to the sovereign immunity of a sheriff are actions] brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.”2Accord, Karrick v. Johnson, 659 So. 2d 77, 79 (Ala.1995); Alexander v. Hatfield, 652 So. 2d 1142, 1143-44 (Ala.1994); Drain v. Odom, 631 So. 2d 971, 972 (Ala.1994); King v. Colbert County, 620 So. 2d 623, 626 (Ala.1993); Boshell v. Walker County Sheriff, 598 So. 2d 843, 844 (Ala.1992); and Hereford v. Jefferson County, 586 So. 2d 209, 210 (Ala.1991).
In this case, the plaintiffs are not seeking injunctive relief or a declaration under the Declaratory Judgment Act. Rather, they are seeking money damages. Therefore, none of the exceptions to a sheriff‘s or deputy sheriff‘s sovereign immunity under
Therefore, I concur to grant the petitions for the writ of mandamus.
Notes
“Under Alabama law, sheriffs and deputy sheriffs, in their official capacities and individually, are absolutely immune from suit when the action is, in effect, one against the state. [Citations omitted.] The district court noted, though, that Phillips [v. Thomas, 555 So. 2d 81, 83 (Ala.1989)] and Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala.1978), identify a number of exceptions to Section 14 immunity. Specifically, the district court held that sovereign immunity does not protect state officials who act under a mistaken interpretation of law. Based on this exception, the district court found that Appellants were not entitled to sovereign immunity.
“Recent Alabama case law makes it clear, however, that the exception relied upon by the district court is inapplicable in this case. In Alexander v. Hatfield, 652 So. 2d 1142, 1143 (Ala.1994), the plaintiff sued the sheriff for negligence and bad faith service of process. The Alabama Supreme Court explained that under Article I, § 14, the only exceptions to a sheriff‘s immunity from suit are actions brought to enjoin the sheriff‘s conduct. Id. at 1143. [Citation omitted.] Because the sheriff in Alexander was being sued for damages and not injunctive relief, the court held that the exceptions to Section 14 were inapplicable and therefore the sheriff was immune from suit. Id.
“Like Alexander, Appellants in this case are being sued for damages, based upon claims of conversion and trespass, and not for injunctive relief. Therefore, Appellants are entitled to sovereign immunity from the state law claims.”