Grider v. City of Auburn, Ala.

Trey Crook, Neal, III, Jason v. all.” Texas United James not occur may Maddox, 1257, Christopher Carver, States, Slone 118 S.Ct. 523 U.S. (internal Meeks, ca- quo- Andrew in their individual L.Ed.2d omitted). Defendants-Appellants. pacities, final order of marks The tation more than state nothing did disgorgement No. 09-13261. “may apply” that the Commission monetary into a to be converted order Appeals, States United Court added). The order (Emphasis judgment. Eleventh Circuit. into a mone- not convert the sanction did Sept. Furthermore, the con- judgment. tary may inability pay be tempt defendants’ provide to and a defense for con-

relevant if fail with the order

tempt comply it not relevant to disgorgement, but Chairs, See appeal. current

at 1436.

TV. CONCLUSION no in the well-

We find reversible error thorough

reasoned and orders of dis- order

trict court. We AFFIRM the disgorgement.

contempt final order of

AFFIRMED. GRIDER, Joseph

Patrick James Daniel Quarter, Inc.,

Grider, The an Fourth Sky Corporation The

Alabama d.b.a.

bar, Plaintiffs-Appellees, Grid, Inc., Corpora an Alabama Highlands,

tion f.k.a. The d.b.a.

Pulse, Plaintiffs, al., et ALABAMA, AUBURN,

CITY OF Corporation, Municipal

Alabama al., Defendants,

et Carter, Randall C.

Elizabeth Brannen Hill, Hill, Carter, Franco, Cole Morgan, & Black, AL, Montgomery, for Defendants- Appellants. Poole, B. Whittelsey,

Davis Robert G. Corley, K. David Daw- Jonathan William son, Poole, P.C., Whittelsey, Whaley & AD, Plaintiffs-Appellees. Opelika, BLACK, Before HULL KRAVITCH, Judges. Circuit HULL, Judge: Circuit Plaintiffs own a Au- bar/restaurant burn, City of Alabama and sued the Au- (the “City”) City employees un- burn der state tort law 42 U.S.C. 1983 for of the Fourth and Fourteenth violations primarily Amendments. Plaintiffs claim agents City bribery the and its filed false regulato- charges selectively and enforced in Plaintiffs’ ry laws order to harm the for summary business. Defendants moved based judgment qualified immunity on from the 1983 claims and state-law im- claims, munity from the which state-law review, Upon court the district denied. we affirm part, part, in in and re- reverse mand.

I. BACKGROUND in light We review the facts the favorable to most Plaintiffs.1 qualified immunity ques- qualified immunity, denial of is a ment on we view the 1. The facts City law we de. Swint v. light plaintiff. tion of review novo. the most favorable to the Id. Cir.1995). 988, (11th Wadley, 51 F.3d Summary judgment appropriate when summary judg- aWhen defendant moves for (“Gri Codes, Patrick for Plaintiff-Appellees Grider Administration and and Officers (col der”) Terry III, Crook, Daniel and his brother Grider James Neal Jason Chris “Griders”) Carver, Maddox, lectively, operate topher the own and and City Slone all Auburn, and restaurant businesses Each policemen. bar Defendant is sued in his Alabama, Quarter, The Fourth including capacity.3 individual Plaintiffs’ claims on Inc., a Plaintiff-Appellee. which is also appeal primarily concern two sets of Quarter Fourth owns and operates (1) The during events law 2005-2006: enforce Skybar (“Skybar”), the Café 29, 2005, bar/res ment on September surveillance taurant at issue.2 culminating in a bribery charge against Grider; Plaintiff and Defendant premises In the leased the Griders Skybar’s Meeks’s calculations of occupancy City. Magnolia at West Avenue 2005-2006, culminating limit in in an occu several operated The Griders successive pancy persons. limit of 999 We describe location, culminat- establishments at that each events in set of turn. ing Skybar, opened August which on 2005. Since owned the Gri- bars Bribery A. Charge Surveillance and ders, including Skybar, have been the sub- Sergeant Defendants Maddox and private warnings by Offi- ject complaints, and cer City City Neal went Prosecutor Department of Auburn Police and (“APD”), underage asked could drinking, fighting, for how curtail the citizens’ patrons consuming beverages complaints Skybar and alcoholic about underage al- Sunday 2:00 a.m. mornings. consumption after cohol and alcohol consump- Sunday tion 2:00 a.m. on mornings. after filed Plaintiffs suit APD Lieutenant Howell authorized sur- City City employees and ten alleging Skybar at potential veillance to monitor City enforcing its laws in a discrimina- illegal Sergeant behavior. Maddox direct- tory try put manner to to harass them and ed Officer Neal to begin surveillance. allege them out of business. Plaintiffs up Neal video set surveillance across the its employees placed and Skybar building street from in a that was surveillance, their businesses under im- part University Auburn campus. num- properly occupancy calculated low The surveillance video covered thus codes, pursuant building safety bers the front its rear. improper issued criminal citations charges, legislation concerning passed At time of the on Sep- surveillance targeted alcohol sales Plaintiffs. 29, 2005, Corporal tember Defendants

This Crook Officer on a appeal involves certain claims and Carver were foot patrol early An- Defendants-Appellants: morning these downtown. On the of Meeks, City’s Deputy September Corporal drew the Director and Officer Crook Ham, Jr., genuine any Jerry Sparks, City “there is no issue as to APD material Officer Fire judg- fact and ... the movant is entitled to Inspector Massey, City Safety Thomas Public 56(c). ment as a matter law.” Fed.R.Civ.P. of James, City Manag- William Director current Jr., Duggan, City. er Charles and the The The sole The 2. Griders are the stockholders of granted summary judgment district court Quarter. Quarter Fourth The Fourth has ex- and these defendants dismissed them from 1996, doing isted the since business under Auburn, the Grider v. case. of names of several different bars/restaurants (M.D.Ala.2009). F.Supp.2d Plain- purposes owned the Griders. For the of appeal judgments those and dis- tiffs do not appeal, only Skybar is relevant. juncture. missals at this Defendants-Appellants addition to the here, City Mayor sued Plaintiffs also William Sky serving fact Bar alcohol call from Officer that the was received a radio Carver Sergeant that Mad- them after a.m. on a Crook and informing Sunday.”5 Neal 2:00 to the go and Carver to dox wanted Crook point that of Carver state Grider at this Skybar and see whether back room of if money they agree fered would to them report alcohol anyone “drinking” was and “the violation.” Carver overlook Officer approximately to At 3:00 back Maddox. told that he was to do some Grider about n .m., and made Officers Carver Crook thing “very stupid.” According Crook Skybar of way the back the their around Carver, them and Grider continued to ask building patrons cups and observed violation, the that overlook stated he hands the bar. The officers their inside everyone Skybar in ten would have out of alleyway Skybar, behind entered minutes, then cash in and offered them bar, the fire door of the and opened rear exchange cooperation. for their holding patrons observed several inside allegedly left three bills on Grider $50 containing plastic cups ap- what clear alleyway’s the sidewalk rear of at the the drinking to be alcohol and peared others Wright bar and then walked via Street from beer bottles. front around the bar back into its door time, Grider, Around this Plaintiff who Neal, Magnolia on West Avenue.6 Officer Skybar, that APD was learned Officers surveilling Skybar who was the front of at the Crook and Carver were back door of street, Special from the in a across stated building. exited front of Grider Report that he Patrick Grider observed Avenue, building Magnolia on West bar, exit front door of walk via which Wright along walked Street ran Wright around Street to the back building, the side bar, via Wright and return Street “few Skybar. the back walked around to later.” Video taken minutes surveillance approached the officers Grider and asked point from Neal’s vantage Officer shows everything okay.” if “was The officers walking Grider out of the front of the things responded “checking that were building at 3:15 a.m. going around out.” Grider informed officers bribery towards the back the bar. The Earnhardt, Jr., inside Dale the bar.4 alleged place to have taken at 3:20 a.m.7 parties’ sharp diverge recollections Grider denies these events. Grider point. three ly at this While the men were agrees he informed the officers Mr. Skybar building, at the back of the Offi However, was in the Gri- Earnhardt bar. cers Crook and Carver state that after categorically attempting der denies told Mr. Grider them about Earnhardt’s officers, money, bribe the them offering presence, peo he told them that he knew money ground, asking on the leaving them ple appreci still were at the bar but would any laws, any way to enforce if ate it Crook and Carver overlook would interfering violation.” with the officers’ activities or “the Officer Carver states he told Grider that could not “the states he he overlook duties. Grider that neither nor 4. Mr. Earnhardt is a NASCAR video surveillance cuts off at 3:17 well-known 7.The a.m. racing earlier, however, driver. As the video surveil- noted captured lance and not the rear front September early morning 5. thus the bar and would not have recorded question, Thursday, Sunday. was not a a the incident. 6. Officer re Crook states he "realized” after turning police to the station that Grider had $50 three left bills on sidewalk. prohibits

his brother Daniel Grider has ever sold which alcohol sales 2:00 after by alcohol after the time allowed law. Gri- a.m.9 that he der admitted did not know at the day, On the same the APD contacted Skybar time that was under video surveil- requested Grider and that he come to the lance Officers Neal and Maddox. police station. Grider arrived and stated Sergeant Defendant Maddox was not at his concern that Officer Neal showing was Skybar during scene the surveillance up Skybar a disproportionate amount or the operation alleged bribery. Officer compared to other bars. Grider was ar- alleged Carver notified Maddox of the inci rested and charged bribery. with occurred, dent soon after it and Maddox informed money, Carver to collect arrest, After his signed Grider a writ- complete report, an incident and enter the statement, ten prepared by an APD de- money into evidence.8 Officer Crook later tective. Grider’s explained statement that Special Report filled out a about Grider’s at around 3:00-3:30 a.m. September actions. At the time of the alleged brib 29, 2005, spoke he with an APD officer ery, continuing Officer Neal was the sur Skybar, behind explaining to him that a operation Skybar veillance at the front of total of about 10 people were in Sky- consequently present was not bar, including Earnhardt, Mr. that “noth- Carver and Crook at the Skybar. rear of ing illegal there,” going was on in Neal was informed of alleged bribery bar, the officers could enter the but that after it occurred. preferred they he go not in because Mr. Shortly Skybar after Grider re-entered Earnhardt and those with him likely speaking after with Officers Crook and would leave. Grider’s says, statement “I Carver, Skybar Officer Neal entered give did not anybody any money.” Grider, got you,” told you “We and “I told get your 29, 2005, that we would license.” On November When the state trial meant, Grider asked what that Neal stat- court held a preliminary hearing on the ed, ‘You will find out.” bribery charge against Grider. Officers Carver they and Crook testified peo- saw day, 30, 2005, The next September Offi ple Skybar inside holding plastic clear cups signed cer Carver charging affidavit appeared of what to be alcoholic beverages “Bribery Servant,” Grider with of a Public drinking bottles, from they beer but 13A-10-61, § violation of Alabama Code also admitted any did not have proof and warrant was issued for ar Grider’s Skybar selling rest. alcohol after Carver’s affidavit 2:00 stated Grider at tempted September a.m. on bribe Officers 2005 and did Carver and Crook so that they anyone would see in Skybar serving overlook viola alcohol to City 3-1(11), § tion of Auburn Ordinance anyone. Neal acknowledged that he had fingerprints The bills were not tested for The current version of the Auburn code during proceedings the Alabama state-court prohibits beverages sales of alcoholic after against Grider. The bills later were tested for Sundays 2:00 a.m. on and 2:30 a.m. on other fingerprints and did not contain Grider's days. 3-51(b)(1), (2). City Auburn Code prints. prohibits Alabama selling state law serving of Sundays, alcohol after 2:00 a.m. on bar, “Option 9. The is an B” for which apply any but day does not other then-current Auburn Ordinance 3- 28-3A-25(a)(20), week. Ala.Code B)(d) l(ll)(Option provided, “No sales of al- (1975). beverages coholic shall be made after 2:00 a.m.” occasions, Skybar’s calculated occu- past in the of his desire Meeks

told officers other pancy limits. Skybar to shut down. have 2005, began In the Griders renovation probable that no cause argued Grider Skybar Dur- repairs building. and to the bribery him for because to arrest existed (1) ing opening its as preceding of renovations not show a violation the facts did (2) 3-1(11); Skybar, remodeled approxi- the Griders City Auburn’s Ordinance 3-1(11) location, mately Skybar the re- of 14% of prohibits only “sales” section a.m.; portion moved roof in the front and there was 30% of the 2:00 alcohol after replaced and the Skybar building, at or of the anyone Skybar sold no evidence that with a.m., existing flooring that outdoor plywood after 2:00 alcohol served decking Skybar of the portion alcohol in in the front to consume patrons continued 19, 2005, day building. August trial the time. state On the after The bar Skybar City Inspector Fire Thom- bribery charge against opened, the court dismissed Massey Skybar as informed Grider that probable lack of cause.10 Grider for portion could its rear until the open not APD’s of Throughout investigation a fire alarm the entire Griders installed 2005, APD or 11 Skybar compiled building. response, In Griders install- (“I/O”) Reports vari- Incident/Offense system. ed a fire alarm 2005, of alleged ous violations law. in- APD Howell called off the Skybar’s reopening August Lieutenant Prior to Skybar issuing cita- vestigation without requested that officials Grider tions, than warnings, prosecutions or other a assign occupancy maximum number. new charge bribery Gri- dismissed number occupancy 603 was the set for the der. building August In late since 1998. again occupancy Defendant set the Meeks B. Occupancy Meeks’s Calcu- Defendant at Skybar number for 603. Meeks arrived lations Skybar by splitting at this calculation into and rear. as- allege Plaintiffs also that Defendant two sections—front Meeks signed persons a City’s plan in the to load value of 203 to participated Meeks portion Skybar persons front and 400 harm business intentional the Griders’ Skybar. ly arbitrarily assigning Skybar portion an arti the rear load, occupancy maximum while ficially low re-calculation, After initial Defen- this assigned bars inspectors other similar dant informed Grider he could Meeks loads, in higher occupancy violation Skybar’s occupancy not maximum raise rights.11 equal protection Plaintiffs’ until the Griders a classification installed Deputy sprinkler system throughout Ad- the entire City’s As the Director for Codes, building. July Meeks ministration Defendant On Griders occupancy completed installing required sprinkler maximum building calculated Skybar. system requested occupancy a new facilities like On several loads for Court, time, court stated: the defen- I don't see where I have The state trial "If this any say charged bribing probable there’s no police with officer choice but dant was offense, cause investigation to believe this described prevent of an alcohol of- fense, complaint, has been committed. And that certainly were entitled which ruling.” do, will be the Court’s probable cause would I think the issue met, complaint be but it doesn’t. states charged bribing participated that the defendant was 11. There claim that Meeks is no public police he would enforce an in the surveillance of official so officers’ bribery prosecution there's no he was of Grider on the ordinance which evidence charge. committing. as the case So is before

1251 alarm system are; calculation. The fire was Some of these violations [sic] four 1,000 a maximum designed peo- for load of of the five exits do not a landing have ple. the exterior side of the door at the same inside, elevation as the floor these land- physically inspected

Meeks then the ings are required to have a width-equal exits, alarm, Skybar’s fire sprinkler to the door and have a system and travel Skybar’s re-calculated occu distance pancy persons August load as 933 at least inches. The main exit ramp number, 2006.12 To arrive at this Meeks exceeds the maximum slope require- used, calculations, part as of his a 7 ment, none of the exits have emergency square-feet-per-person standard for stand lighting on the exterior. There are also ing open areas. egress code violations inside the building egress on older main elements to Griders’ claim is that the dance Meeks should have used floor and square-feet-per-per- platforms to raised which oc- son calculation for standing areas. Meeks curred in the adoption of the IFC. Two did not use the 5 square-feet-per-person exits also open alley way to an that acts in evaluating Skybar standard because as a get corridor to the occupants to a Meeks concluded the resultant number public way. delays This occupants the permitted would have occupancy exceeding getting open to an and safe area away capacity Skybar’s the exits and fire building. from the system. alarm In August his 2006 letter Meeks later testified that because Sky- to the Griders’ attorney, explains Meeks bar’s exits were “severely impacted,” he safety his Skybar’s concerns about exits “reasoned that the capacity was less than system. and fire-alarm August Meeks’s any published quotient by Code that had letter in part, system states “the fire alarm by ever been allowed Code.”13 sky installed bar is not type August an response, system required occupancies [sic] over attorney Griders’ states: Sky “What The persons.” exits, Skybar’s As for Bar primarily takes issue with is the use of Meeks’s August 7 letter states his concern square the 7 per occupant feet verse [sic] “the about risk of accidents to occupants square per the 5 feet trying occupant ... panic required evacuate in a situa- tion,” by Sky- applicable discusses the violations code.” The at- Griders’ exits, bar’s as follows: torney explains in why detail then. 4, 2006, August In a letter dated the Gri- occupancy maximum calculation is attorney upon ders’ comprising states: "Based our calcu- persons portion in the front lations, bar, provided persons calculations and 892 por- to us in the rear Quarter, tion independent experts, bar. it is the Fourth Sky position Inc. dba The Bar’s that the total opinion 13. Meeks testified that his of the in- occupancy ‘Sky Building’ number for the Bar adequacy Skybar’s part exits in led him to be, minimum, should at a 1097.” The letter occupancy set this calculation: “I had to by saying Skybar’s expert continues calculat- up come something after I went and ed that the front area "should have an occu- looked at the basically thought exits. And I I pancy level of a bare minimum of 417” and going giving out aon limb them what I building "[t]he back area of the should have thought sticking my did. I I was neck out occupancy level of a bare minimum of pretty giving far them nine hundred —whatev- 680.” gave initially er I them nine hundred and letter, August In an because, mean, Griders’ something with those exits I I attorney argues then the total limit should be have heard of several noncompliant cases of 1262, consisting of 408 in the front and 854 in causing major problems exits buildings, argue the rear. people Plaintiffs now actually getting correct killed.”

1252 argue arbitrarily ap- Plaintiffs Meeks per person 5 feet square believe Griders for areas. standing Skybar used to plied should be more-restrictive standards bars, “In to two other A-2 classified than letter to August response 2006 In an Italy” “1716.” These two other bars and further ex attorney, Meeks the Griders’ City inspectors evaluated other were Skybar’s his concerns about the plained Meeks) (not occupancy classi- and received affect how concerns the exits and those square-feet- August fications based on the lowest 5 occupancy capacity. Meeks’s total that he “did not state Italy” letter reiterated “In per-person 31 standard. and system fire alarm did not enhance that the compliant City with all codes “1716” were only that it building, of the occupancy the time, having adequate fire including at the it to over used to enhance could not be systems. Plaintiffs do not sprinkler and letter August 31 persons.” 1000 Meeks’s record point anything to the that us square-feet-per-per that noted the 5 also occu- square footage shows the actual and any changed minimum standard was son Italy” of “In and “1716.” All pancy limits in the way square-feet-per-person 7 new to Italy” that and “1716” we know is “In were code, City the edition of the which occu- square footage and total smaller month, adopt because planned to the next than that pancy limit and load the lower 5- occupant the under regulators other than Meeks used found to standard had been be square-feet part square-feet-per-person standard hazard.14 not identi- their calculations. Plaintiffs do happy not The Griders were any showing layout the fy record evidence requested Meeks’s revised calculation and “1716,” many Italy” of “In or how total that the at least twice Meeks re-evaluate type or the of exits and fire alarm exits load. In the Gri- occupancy October had, systems they any other details of improved had ders notified Meeks inspectors’ the other calculations as to “In Skybar. rear exits of Italy” and “1716.” yet inspection, physical After another September From 2006 to October Skybar’s occupancy increased load Meeks employees and Griders their received persons for allotting from 933 citations, but no overcrowding several one portion per and 599 the front the bar punished overcrowding ever for an was the rear Meeks portion.15 sons for avers 14, 2006, offense. On Fire In October Skybar’s occupancy he could not raise limit Massey overcrowding ci spector issued 1,000 beyond persons that was because municipal judge tation to Grider. A found Skybar’s system. limit alarm fire guilty Grider of the offense. When Grider dispute Skybar’s do not occu Griders court, to the circuit appealed Alabama persons largest at 999 bar in pancy City. charge prossed.16 nolle provide safety the built and to 14.Meeks asserts his decision to use environment square-feet-per-person fighters emergency respondents standard furthered the to fire City's purpose building We codes. note during emergency operations.” the 2003 version of the International ("IBC”) Inspector Building purpose 15. Grider's affidavit states that Fire Code states: "The Meeks, Massey, is to the minimum re- the October of this code establish made health, public quirements safeguard appears persons. to 999 This recalculation general through safety and typographical welfare structural be a error. facilities, stability, strength, egress means of ventilation, Inspector sanitation, originally 16. Plaintiffs sued Fire adequate light and en- conservation, Massey §for arrest and ergy safety prop- false malicious to life and corollary erty prosecution, and state-law claims from hazards attributable fire other Court Proceedings bribery District Grider without proba C. cause; conspiracy Carver, ble against 2007, Plaintiffs this suit In late filed (but Crook, Maddox, Meeks) and Neal not § 1983 and claims. De- raising state-law regarding for conspiring bribery the 2005 dismiss, moved to Plaintiffs fendants but (3) charge; equal protection and against a motion to initial then filed amend their selectively Meeks for calculating the occu granted. which the district complaint, court pancy Skybar. for filed a motion numbers See at Defendants to dismiss id. Complaint, pend- which Amended remains 1334-51. Defendants also appeal the deni ing. al of immunity state-law on these state-law (1) claims: malicious prosecution against later summary Defendants moved for (2) bribery charge; Carver for the tortious on, alia, qualified based judgment inter interference with contractual and business immunity immunity. and state-law The against Carver, relationships Crook, Mad granted summary judgment court district dox, Meeks; (3) Neal, claims, and and three fraud on certain dismissed certain claims (deceit, by suppression, § claims fraudulent two-year as barred 1983’s statute of and limitations, and and sum- immunity misrepresentation) denied fraudulent against mary judgment on other Grider v. claims. occupancy Meeks for the number calcula Auburn, City F.Supp.2d 628 1322 tions. See id. 1352-55.17 of (M.D.Ala.2009). appealed, challenging Defendants II. DISCUSSION qualified immunity

denial of on the follow- (1) prosecu- § first ing immunity 1983 claims: malicious We review the Carver issuing tion for a warrant appeal.18 doctrines involved this overcrowding pending related to three citations. motion dismiss the Amended granted summary judgment court district Complaint. argument beyond This case, Massey Massey and dismissed from scope appeal of the Defendants' notice of and concluding Massey's 2006 October cita- properly presented thus is not in this limited Grider tion to was not a Fourth Amendment Bank, interlocutory appeal. Nippon Credit purposes § for the seizure 1983 Grider's Matthews, 738, (11th Ltd. v. 291 F.3d 754 claims, Massey false and state-law arrest Cir.2002). probable cause had to issue the October 2006 qualified and thus citation was entitled to argue jurisdiction we Plaintiffs lack over immunity from Grider’s 1983 state-law interlocutory appeal because the re- claims, prosecution malicious and that Grider maining issues for certain claims are factual enough did offer a mali- not detail to show by jury. reject issues for resolution We prosecution arising cious claim out of Mas- argument. presents Plaintiffs’ This case Grider, sey’s November 2005 628 citations. qualified immunity” analysis "core of wheth- 1330-34, 1352-53, F.Supp.2d at 1355. Gri- facts, light er the in the viewed most favorable appeal rulings not der did the district court’s Plaintiffs, establish that Defendants violat- Massey, so these as to issues tire not before us rights. ed Plaintiffs’ constitutional McMillian appeal. in this Johnson, 1554, (11th v. F.3d 88 1563 Cir. spe- 17. Defendants' notice six appeal raises 1996); Forsyth, accord Mitchell v. 472 U.S. grounds: cific the district denial court’s 511, 530, 2806, 2817, S.Ct. 105 86 L.Ed.2d qualified immunity from 1983 Plaintiffs’ Caldwell, (1985); 1480, 411 Cottrellv. 85 F.3d (1) (2) prosecution, equal for claims malicious (11th 1996). Likewise, Cir. this Court (3) protection, conspiracy, and the dis- jurisdiction interlocutory has to review on immunity trict court's denial of state-law appeal discretionary-function the denial of (4) from Plaintiffs’ state-law mali- claims for immunity under Alabama law. Sheth v. Web- fraud, (6) prosecution, cious tortious ster, (11th Cir.1998). 145 F.3d argue interference. Defendants also now ruling court erred district their qualified immunity, cial and this Immunity to lose Qualified and State-Law A. analysis may be done two-pronged Doctrines appropri- whatever order is deemed most claims, As Plaintiffs’ Callahan, ate the case. v. for Pearson immunity complete pro offers “[qualified -, 555 U.S. S.Ct. government officials sued tection (2009); L.Ed.2d 565 Brown if capacities their conduct individual their (11th Huntsville, Cir. clearly established statu not violate ‘does rights of which a constitutional tory or 2010). have person would known.’” reasonable claims, forAs Plaintiffs’ state-law Wilson, 1340, F.3d 311 1346 v. Vinyard recognizes Alabama of state-law types two Cir.2002) (11th (quoting Fitzger Harlow v. immunity: “state-agent immunity” and 2738, ald, 800, 818, 102 2727, S.Ct. 457 U.S. immunity.” “discretionary-function (1982)). Qualified immuni L.Ed.2d 396 73 Brown, (discussing at 741 Ala 608 F.3d govern is to “allow ty from suit intended immunity).20 types two of state-law bama’s carry out their discretion ment officials to First, immunity under Ala state-agent fear of ary personal duties without the common law state em “protects bama’s liability harassing litigation, protecting or State, in ployees, agents as of the the plainly incompetent all but or from suit the judgment executing of their in exercise violating knowingly who is the federal one responsibilities.” parte their work Ex Ferraro, Lee v. 1194 law.” (Ala.2002). Hayles, 852 So.2d 122 Cir.2002) (internal (11th quotation marks Cranman, (Ala. parte Ex 792 So.2d 392 omitted). citations 2000), plurality Supreme Alabama two-part utilize a frame Courts scope Court the of restated clarified qualified immunity to evaluate def work state-agent immunity doctrine, Alabama’s in a im qualified One inquiry enses.19 may which to all apply Defendants: munity analysis whether the plaintiffs is A agent shall immune from State be true, if establish a allegations, constitu liability personal civil in his ca- or her Pelzer, violation. v. Hope tional 536 U.S. ... pacity [for] 730, 736, 2508, 2513, 122 S.Ct. 153 (2) his or in exercising judgment her (2002) (citing 666 L.Ed.2d Saucier agen- of a or department administration

Katz, 194, 201, 533 U.S. S.Ct. cy including, but not lim- government, of (2001)). 2156, 150 If the L.Ed.2d to, examples ited such as: facts, light in the construed most favor (a) adjudica- making administrative plaintiff, able to the show that a constitu ...; tions or violated, right in tional has been another (3) discharging imposed on a duties de- quiry right is whether the violated was statute, rule, partment agency Saucier, or or “clearly established.” U.S. statute, rule, regulation, insofar S.Ct. at 2156. Both elements this test or regulation prescribes must be satisfied for an offi- the manner for qualified immunity broadly inquiry opinion The initial in a 20. we refer In this when 19. public proves is immunity, case whether official we Alabama "state-law” mean acting scope "that he was within the of his “state-agent both Alabama's common-law im- discretionary authority allegedly when the munity” statutory "discretionary-function Lee, wrongful acts F.3d at occurred.” type immunity.” When we one refer (internal omitted). quotation marks For designate immunity, we which one. here, parties § 1983 claims do not acting contest that Defendants were within discretionary scope authority. their faith, and the performing fraudulently, beyond the duties State in bad or his or performs authority.” the duties that man- her Id. agent ner; or Second, there statutory, discretionary- (4) exercising judgment the enforce- immunity function for law enforcement of- State, the criminal laws of the ment of Brown, ficers Alabama. 608 F.3d at to, including, but not limited law-en- Specifically, 6-5-338 the Ala- arresting attempt- forcement officers’ provision bama Code contains a immuniz- .... ing persons to arrest ing law enforcement officers from tort lia- Notwithstanding anything to the con- bility for conduct within scope of their trary in foregoing statement of the discretionary law enforcement duties. rule, agent State shall be immune 6-5-338(a) Ala.Code (“Every liability personal from civil his or her peace ... immunity officer shall have from capacity liability tort arising out of his or her con- (1) when the Constitution or laws of the performance duct in any discretionary of States, or the of United Constitution function within the line scope and of his or State, laws, rules, regulations or or of duties.”); id.; her law enforcement Wood promulgated this State enacted or Kesler, 872, (11th v. 323 F.3d 883 Cir. purpose regulating of the activities 2003). 6-5-338(a) protects Section peace governmental agency require of a other- officers, Carver, such as Defendants wise; or Crook, Maddox, Neal, and but not Defen- (2) agent when the willfully, State acts dant Meeks. maliciously, fraudulently, faith, in bad state-agent Cranman’s test for immuni- beyond authority, his or her or under a ty governs also whether law enforcement interpretation mistaken the law. of officers are statutory, entitled to discre- Cranman,

Ex Parte 792 So.2d at 405 tionary-function immunity § under 6-5- (third emphasis supplied).21 338(a). City Brighton, Hollis v. 950 of (Ala.2006).22 So.2d 307-09 This in- Supreme Alabama Court es Reynolds burden-shifting cludes a burden-shifting tablished framework for framework, requiring first the defendant application state-agent immunity law enforcement officer to show that test. A he initially defendant bears the bur acting was within the ambit of demonstrating den of that he his discre- acting tionary functions and shifting function that would him then entitle to immu nity. parte plaintiff burden to the in- Reynolds, Ex Estate 946 show “bad of (Ala.2006). tent” —that willfully, So.2d 452 “If the the officer acted mali- State faith, agent showing, ciously, fraudulently, makes such a the burden bad or be- plaintiff yond then shifts to the to show that authority his or her order to —in agent willfully, State acted maliciously, discretionary-function defeat the officer’s Supreme formally 21. The Alabama statutory, discretionary Court receive im- function adopted plurality’s 6-5-338(a). state-agent the Cranman munity through § 950 So.2d at Butts, immunity ("Because parte test in Ex 775 So.2d peace immunity 309 officers’ (Ala.2000). 177-78 availability statute does not limit the of immu- laws,' nity to 'enforcement of the criminal we (4) City today modify category Brighton, In Hollis v. of Cranman to [in- the Alabama of Supreme expanded ‘serving peace ... category clude]: Court the fourth under officers state-agent immunity entitling of for law circumstances such to immu- enforcement officers 6-5-338(a), quoted nity pursuant officers above from Cranman to in- Ala.Code ”) (emphasis original). clude conduct for which the officers would 1975.’ Wood, remains a federal constitu- 741; under Brown, at 608 F.3d immunity. claim, whether its elements and tional 883; City Tuske- parte at Ex F.3d by controlled (“The ultimately are (Ala.2005) they are met 895, 904 932 So.2d gee, Wood, at 882. law.” federal immunity as State-agent restatement Cranman, at now 792 So.2d out in set malicious To establish whether a the determination governs claim, prove plaintiff must prosecution immunity under officer is entitled peace (1) of the com things: the elements two 5—338(a).”)- Thus, can Plaintiffs § 6— prosecution; tort of malicious mon law immunity and dis- state-agent both pierce (2) of his Fourth Amendment a violation by showing immunity cretionary-function from unreasonable sei right to be free Crook, Maddox, Carver, Defendants Miami, Kingsland zures. maliciously, “willfully, acted and Neal (11th Wood, Cir.2004); 1220, 1234 F.3d faith, beyond his fraudulently, bad prong, As to the first F.3d at 881. inter- under a mistaken authority, or her of the common law constituent elements Hollis, 950 So.2d of the law.” pretation “(1) a prosecution malicious are: tort of omitted). marks (quotation instituted or contin prosecution criminal (2) defendant; present ued Against Car- B. Malicious Prosecution (3) cause; probable malice and without Qualified Immu- and State-Law ver— plaintiff in the accused’s that terminated nity favor; damage plain to the caused mali brought Patrick Grider Plaintiff Wood, at 323 F.3d 882.24 tiff accused.” § claims under 1983 and prosecution cious law for the elements under Alabama Defendant Officer Car against state law prosecution of malicious common-law tort argues Defendant Carver appeal, ver. On same, except require are denying him court erred the district “judicial proceeding” not a “criminal immunity state-law qualified and Alabama Delchamps, Bryant, Inc. v. prosecution.” immunity.23 (Ala.1999). 824, 831-32 738 So.2d mali “has identified

This Circuit it prong, to the second is As a violation of the prosecution cious that an arrest without well established constitu Amendment and a viable Fourth an unreasonable seizure probable cause is § cognizable tort under 1983.” tional that violates the Fourth Amendment. Wood, 881; Wood, Kjellsen Brown, 734; v. 323 F.3d at accord at 323 F.3d 608 F.3d (11th Cir.2008). Mills, 1232, 882; County, Crosby 517 F.3d 1237 at v. Monroe 394 (11th Cir.2004). 1328, and federal law Conse “[Although both state law F.3d 1332 cause probable of the common the existence of help quently, inform the elements § prosecution a Fourth 1983 malicious prosecution, law tort of malicious defeats Wood, 1237; at Kjellsen, claim claim. 517 F.3d prosecution malicious Amendment status, clarify any, if Complaint does not district court should 23. Plaintiffs’ Amended clearly allege who asserts 1983 and state- Daniel Grider and Fourth of co-Plaintiffs Quarter prosecution Count I malicious claims. remaining law claims. in the by claim all Plaintiffs asserts a blanket 1983 However, only Pat- against all Defendants. prosecution brought as malicious 24. "When bribery charged or ar- rick Grider was tort, the outcome of a federal constitutional rested, and the court characterized district law, hinge on state but the case does not prosecution this claim as a 1983 malicious law, depending on and does not differ federal Car- Patrick Grider Officer claim Wood, particular 323 law of a state.” the tort Grider, ver, dispute. parties do not which F.3d at 882 n. 17. remand, F.Supp.2d 628 at 1334-35. On

1257 227, 534, 536, “Probable cause” 112 323 F.3d 882. is de- S.Ct. 116 L.Ed.2d 589 (1991) (“Even fined as “facts and circumstances sufficient law enforcement officials prudent believing to warrant a man in reasonably who mistakenly but conclude suspect had committed or was commit- that probable cause is present are entitled Pugh, an offense.” v. 420 ting Gerstein immunity.” omitted)); (quotation marks 103, 111, 854, 862, U.S. 95 S.Ct. 43 L.Ed.2d Montoute, 114 (“Thus, F.3d at 184 (1975) (internal marks, quotation paren- 54 qualified immunity standard is broad omitted). theses, and citations Probable enough to cover some ‘mistaken judgment may exist cause based the collective []’....”). objective The standard is an knowledge of law enforcement officials de- one and does not include an inquiry into reasonably trustworthy rived from infor- subjective the officer’s intent or beliefs. Savaiko, mation. Madivale v. 117 F.3d Parker, Rushing 1263, v. 599 F.3d (11th Cir.1997). 1321, 1324 (11th Cir.2010). qualified immunity, To receive possesses Whether an officer ar actual probable officer need have guable probable cause depends on the ele cause, only “arguable” probable but cause. alleged ments of the opera crime and the Brown, 735; F.3d at Holmes v. Ku fact pattern. Skop City Atlanta, tive v. (11th Cir.2003); cynda, 321 F.3d (11th 485 F.3d Cir.2007); 1137-38 Carr, (11th Montoute v. F.3d Crosby, 394 F.3d at Showing argua Cir.1997).25 Arguable probable cause ex probable not, however, ble cause does re ists where “reasonable officers in the same quire proving every element of a crime. circumstances and possessing the same Scarbrough Myles, 1302- knowledge as the Defendants could have (11th Cir.2001). If arresting officer believed that probable cause existed to arguable had probable cause to arrest for Plaintiff.” Kingsland, arrest 382 F.3d at offense, any qualified immunity apply. will omitted); (quotation marks accord Skop, 485 F.3d at 1138. City 1378, Redd v. Enterprise, 140 F.3d Here, Officer Carver arrested Grider for (11th Cir.1998); Gold v. Mia bribery, in violation of Alabama Code mi, (11th Cir.1997) 121 F.3d 1445-46 13A-10-61, § provides: which law); (disorderly conduct under Florida (a) A person commits the crime of brib- Brescher, v. Von Stein 904 F.2d ery if: (11th Cir.1990). “Indeed, it is inevitable (1) offers, He agrees confers or to that law enforcement in officials will some any confer thing upon pub- of value reasonably mistakenly cases but conclude lic servant with the intent that probable present, that cause is in and such vote, public opinion, servant’s judg- cases those officials should not be held Stein, ment, personally liable.” exercise of discretion or other Von F.2d at omitted); in (quotation ellipses marks and action his official capacity will Bryant, thereby influenced; see also Hunter v. 502 U.S. corruptly be or 1195; Cannon, precedent discussing "arguable proba- 25. Our 284 F.3d at Jones (11th Cir.1999). specific ble cause” does so in the context of 1283 n. 3 We there- § "arguable 1983 false arrest probable claims also in the fore use the same cause” general qualified immunity context of Fourth Amendment claims. standard in the context for Wood, E.g., (“[AJrguable § 323 F.3d at 881 n. 13 1983 claims for both false arrest and mali- probable required cause ... all that prosecution, require is for cious as both a violation arresting qualified an officer to be entitled parties agree to of the Fourth Amendment. The immunity "arguable probable from a Fourth Amendment cause” controls in claim.”); 1332-33; Lee, Crosby, 394 F.3d at this case. occurred, solicits, bribery knew he had no (2) servant, knew no he public aWhile Grider, to arrest probable cause arguable accept any pecu- accepts agrees or maliciously in intentionally acted or agreement niary upon benefit Skybar. Grider has an effort to close vote, opinion, understanding that his shown, juncture, at a Fourth at least this of discretion judgment, exercise violation for his Amendment constitutional will public action as a servant other cause. arguable probable without seizure influenced. thereby corruptly be context, immunity it is qualified in the And 13A-10-61(a) (1975). Ala.Code prob- that arrests without well established Gri- charging affidavit Officer Carver’s Amendment. cause violate the Fourth able al- bribery stated Grider’s der Wood, 882-83; Crosby, 394 323 F.3d at See bribery committed leged act of F.3d City Or- enforcement of influence Carver’s facts, light in the most favorable 3-1(11), prohibited “sales dinance which Grider, elements of required also show a.m. Of- beverages” after 2:00 of alcoholic prosecu- tort of malicious the common-law court argues ficer that the district Carver tion Officer Carver. Under Grider’s probable finding arguable no erred events, whol- Officer Carver version (2) in bribery charge, and cause for the bribery charge against ly fabricated to arrest finding arguable probable cause cause, him, and had a probable lacked “closely related” crime Grider for bribery charge malicious intent. Carver’s government of a function obstruction against Grider was dismissed Grider’s damage. and caused him Because Ala.Code 13A-10-2. favor §of claim for malicious type Taking light the facts in the most established, the district prosecution is well Grider, the district court cor favorable to im- denying qualified court did not err immunity and state- rectly qualified denied summary munity judgment stage at this and Car immunity law to Carver. Grider Carver. completely different versions of ver offer reliance Officer Carver’s on Alabama’s bribery events. Grider admits to government of a function stat obstruction Skybar and to speaking to Carver outside misplaced. argues ute is Carver Grider asking scaring to leave to avoid off Carver ability with his to arrest interfered patrons. and other How Mr. Earnhardt violating City’s alcohol Griders ever, unambiguously denies offer Grider However, version of events laws. Grider’s money Absent ing any to Carver. illegal “nothing was that he told Carver funds, bribery is no offering of there Skybar, in” that the officers going arguable probable no cause for Carver bar, pre and that Grider could enter Furthermore, Grider arrest Grider. Earn they go ferred not in because Mr. the officers wanted to close claims likely him would hardt and those with up video surveillance of the Skybar and set Thus, any prohibit leave. Grider did not not uncover viola front of bar but did entering from the bar. Additional officers law, and Officer tions of therefore Carver offense does not ly, Alabama’s obstruction bribery at the rear as an obstruction, fabricated impairment or apply to “the Thus, Skybar. assuming to close of an making effort arrest.” hindrance 13A-10-2(b).26 events, § version of Officer Carver Ala.Code Grider’s (a) person the crime of obstruct- Code of a A commits 26. The Alabama defines obstruction if, by ing governmental operations means of government function as: intimidation, physical force or interference Therefore, also does not re law. Officer Carver we remand this case for immunity. type either of state-law trial on prosecution ceive Grider’s malicious earlier, state-agent Alabama’s against § As noted claims Carver under 1983 and statutory, discretionary- immunity and state law. immunity

function for law enforcement of Carver, Conspiracy Against C. Claim apply willfully, for acts taken ficers do Crook, Neal, Qualified faith, fraudulently, in maliciously, bad be Maddox — Immunity in yond authority, or under a mistaken parte City of law. Ex terpretation The district court qualified denied im (discussing at 904 Tuskegee, 932 So.2d Carver, Crook, munity to Defendants Sheth, discretionary-function immunity); Neal, and Maddox from Plaintiffs’ claim of (same); Wood, at 1238-40 323 conspiracy maliciously prosecute Grider (same); Cranman, parte F.3d at 883 Ex bribery.27 appeal, On the Defendants (discussing at state-agent So.2d argue the district court erred three immunity). Because Grider’s version of (1) ways: incorrectly it determined that an arguable lack of probable events shows underlying existed; constitutional violation malice, cause and Officer Carver is not (2) erroneously it found that the evidence discretionary-func entitled to Alabama’s was sufficient to conspiracy show a immunity. tion Borders v. Crook, Maddox, Cf. and Neal Carver’s pros Huntsville, 1168, 1180, 875 So.2d (3) ecution of Grider for bribery; and it (Ala.2003) (police officer would not be en misapplied intracorporate conspiracy statutory, discretionary-function titled to doctrine. arguments Defendants’ over the immunity prosecution from malicious non-existence of an underlying constitu claim if without arguable proba he acted tional violation are a rehash of Defendant malice). ble cause and with Alabama’s argument Carver’s against the 1983 and state-agent immunity also not apply does state-law prosecution. claims for malicious to Carver for the same reasons. Hol See above, explained As we Grider’s version of lis, 950 So.2d adequately the events establishes reasons, and state-law claims for prosecu

For all these the district court malicious against tion properly qualified immunity question denied Carver. The now immunity Crook, Alabama state-law whether Grider’s Defendant evidence shows Neal, prosecution Carver for Grider’s malicious conspired and Maddox with Carver brought claims under up bribery 1983 and state to make charge. act, by any independently or other unlawful (Ala.Crim.App.1995) (emphasis he: original). obstructs, Intentionally impairs or hinders the law administration of or oth- argument, 27. At oral Plaintiffs conceded that function; governmental er conspiracy do not assert a claim (2) Intentionally prevents public a serv- fact, Defendant Meeks. In the district court performing governmental ant from a summary judgment against entered the Plain- function. conspiracy tiffs on their claim De- all (b) apply This section does not to the ob- respect alleged improper fendants with to the struction, impairment or hindrance of the Grider, occupancy calculations. 628 making of an arrest. F.Supp.2d at 1351. The district court denied 'governmental

Ala.Code 13A-10-2. "A summary judgment only respect "with to Offi- 13A-10-1, function’ is defined at Ala.Code Carver, Crook, Maddox, cers and Neal for the 1975, '[a]ny activity public a which servant conspiracy bribery claim based on the 2005 legally is to undertake on behalf of authorized charge.” Id. ” State, government.' a A.A.G. v. 668 So.2d 1260 Skybar Septem- the on gating § 1983 Griders may

A state a plaintiff 29, showing to constitution But that Maddox conspiracy for violate ber claim showing conspiracy Sky- a existed rights by “conspired” investigate al to and Neal of some in the actual denial bar, that resulted their duties part which is lawful and underlying right. constitutional GJR officers, cry is a far as law enforcement Escambia, Invs., County Inc. v. that Maddox and Neal showing from (11th Cir.1998). “The F.3d fabricate, maliciously agreed to and then a con attempting prove such plaintiff for, bribery crime he prosecute Grider a parties that the spiracy must show did not commit. understanding’ deny ‘reached an Likewise, al- happened what after the rights. conspirato his or her plaintiff not show involvement leged bribe also does impinge upon rial acts must the federal bribery conspira- Neal in a by Maddox and prove must an action right; plaintiff Skybar fact that Neal went into cy. The wrong support conspiracy.” able got you” “we does not and told Grider Bendiburg Dempsey, 909 F.2d wrongfully suggest conspired that Neal Cir.1990) (citations omitted). (11th A bribery, rather prosecute Grider for but claiming conspiracy must plaintiff re- simply that he was aware of Carver’s an the defendants “reached under prove best, At Maddox port alleged of the bribe. standing” plaintiffs to violate the constitu alleged and Neal became aware of the rights. Bailey Cnty. v. Bd. tional occurred, it which is not bribe after Cnty., 956 F.2d Comm’rs Alachua no sufficient. Maddox and Neal also had Cir.1992) (“[T]he (11th linchpin for bribery af- prosecution involvement agreement.”). proof Factual conspiracy Rather, ter Grider’s arrest. Carver filed conspiracy §a of the existence of supporting an arrest affidavit Grider’s may circumstantial evidence. be based on earlier, it warrant. And as noted was not Coll., Military Burrell v. Bd. of Trs. of Ga. unlawful to surveil the front build- (11th Cir.1992). ing. problem The first for the Plain Crook, however, As for Grider’s the lack of that Neal and tiffs is evidence evidence, juncture, true at this accepted as conspired to mali Maddox with Carver indicates that was involved Car Crook ciously prosecute Plaintiff Grider. The bribery charge against Grider.' ver’s record does not indicate that either Mad affidavit, states that Grider told his Crook alleged knew about the dox or Neal brib that for Crook and Carver “he had dollar ery reported before it was to them if they each of’ them would overlook the Maddox was not at the Carver. law, violations of that Grider told the offi alleged bribery. scene the time of the money would leave on the sidewalk cers he nothing suggesting There is the record them, left three Grider $50 agree Maddox and Neal reached (which bills for the officers Crook states he Carver, understanding ment or before station). police afterward at the realized alleged bribery, to the brib fabricate stating that Special Report, Crook filed a best, ery charge against Grider.28 At money Crook observed Grider “set record shows that Maddox and Neal assist ” officers) (and .... ground ed other in investi- Carver shortly timing before the al- 28. Grider contends the of Neal's sur- the video surveillance bribery, leged Neal’s surveillance recorded veillance constitutes circumstantial evidence building agreed fabricating only a the front of the and thus would that he to assist Carver in allegations. bribery charge. Although disproved Neal did turn off not have Carver's

1261 2000) (concluding intracorporate conspira evidence Although Grider’s 1985(3) § cy plaintiffs doctrine barred Carver’s was involved with shows Crook conspiracy claim for interference with claim his conspiracy Grider’s bribery charge, Foote, rights); civil Chambliss v. 562 F.2d intra of the Crook fails because against (5th Cir.1977)31 (affirming 1015 421 Specifi conspiracy doctrine.29 corporate (E.D.La.) F.Supp. 12 district court’s sum intracorporate conspiracy doc cally, “[t]he mary judgment opinion applying the intra agents corporate holds that acts of trine corporate conspiracy doctrine to bar a itself, corporation to the are attributed 1985(3) against claim a public university multiplicity of actors thereby negating the officials). and its conspira the formation of a necessary for cy.” McAndrew v. Lockheed Martin Both Defendants Carver Cir.2000) (11th 1031, Corp., 206 F.3d 1036 are law enforcement Crook officers with (en banc). doctrine, a corpo “[U]nder the APD. No are outsiders involved. The employees, with its conspire ration cannot subject alleged of their conspiracy prose — acting in the employees, and its when cution of Plaintiff Patrick Grider mak employment, cannot con scope of their ing bribery charge job- a false —involves Id.;30 among themselves.” accord spire related functions well within Defendants’ 1172, Albany, 247 F.3d Denney City v. of scope employment police of as officers. Cir.2001) (11th (stating “the 1190-91 recognize that might reasonably We one ... conspirators identified are both two violating believe someone’s constitu alleged City employees; no outsiders are job-related tional a rights never function concluding intracorpo be involved” and scope police or within the of a officer’s conspiracy plaintiffs’ rate doctrine barred However, employment. question of 1985(3) conspiracy deprivation claims for whether defendant acted within the rights). “The equal protection of their scope employment of his is distinct from as applies public doctrine entities such whether the defendant acted unconstitu 247 City personnel.” Denney, and its tionally. The scope-of-employment inquiry 1190; Paulk, 611 Rehberg F.3d at see v. employee police is whether the officer was Cir.2010) (11th 828, (concluding F.3d that, performing a function but intracorporate conspiracy doctrine barred alleged infirmity, constitutional was within county conspiracy claim of scope authority the ambit the officer’s of duties) (i.e., Cnty. job-related employee); Dickerson Alachua and in furtherance (11th Comm’n, employer’s 767-68 Cir. of the business.32 McAndrew, conspiracy itself. See 206 F.3d at 29. claim fails as to Maddox doctrine too, rely 1036. and Neal but we also on lack of evidence to those defendants. as adopted binding precedent 31. This Court as prior all Fifth Circuit decisions to October employment” “scope of 30. Some courts treat Prichard, 1981. See Bonner v. of to, of, part exception than as an rather (11th Cir.1981) (en banc). F.2d intracorporate conspiracy doctrine itself. See Hospital,

Johnson v. Hills & Dales Gen. Traditionally, scope employment in- (6th Cir.1994) ("Aware F.3d of this quiry employee's scope has looked to the ‘scope possibility, courts have created a authority. Compare Dictionary Black's Law recognizes employment' exception a dis- (9th ed.2009) (defining “scope of em- tinction collaborative acts done in between ployment” range "[t]he as of reasonable and private pursuit employer's of an business employee foreseeable activities that an en- by persons happen acts done who to work gages carrying employer's in while out However, business; place”). our Court treats the same the field of in which a serv- action part scope employment more to act in master-servant ant is authorized conspiracy relationship”), (defining "scope of intracorporate with id. formulation of the 1262 course, And, ease, sibilities. of law enforcement

In we thus ask Grider’s empowered precisely prose- are to officers job Officer Crook’s it was within whether Therefore, of law. the in- cute violations authority to make scope of brib duties or conspiracy doctrine bars tracorporate Grider, he ery against not whether charges conspiracy § 1983 claims Plaintiffs’ file false employed authorized or to was APD Officers Carver and Crook. charges in furtherance bribery only remaining question The is whether All of acts were City’s business.33 Crook’s any exceptions there are to this doctrine. scope employment of his clearly within the Dickerson, that cir- In we observed other officer. In further as a law enforcement cuits, applying intracorporate while the business, City’s visited ance of the Crook §in conspiracy rights doctrine 1985 civil in Skybar culminating discussions (1) cases, recognized exceptions have bar, at rear the and Patrick Grider the of charges criminal involving “convictions of Report” regarding Patrick “Special filed a (2) conspiracy,” where the has employee Crook, Carver, actions. Grider’s “independent personal an stake” in his un- signed bribery the the affidavit which acting constitutional acts and is not to corporation’s illegal objective, is further inquiry arrest warrant issued. Our employees “engage or in a where authori not whether Officer Crook had the discriminatory opposed series of acts as to ty in an man prosecute unconstitutional a a single significant period action” over of intent, ner malicious but instead and with Dicker employment setting. time in the prosecutions part engaging whether is son, (collecting 200 at & n. F.3d 768-70 9 job-related powers respon- of and Crook’s circuits).34 discussing cases from other authority” range pow- police right of reasonable not ask whether have the to use "[t]he agent delegated might .... We er an has been excessive force instead ask whether foreseeably delegated carrying they power attempt be out the have the to effectuate business,” arrests”); O’Rourke, principal's cross-referencing accord 378 F.3d at 1205 definition). (" "scope employment” police [a 'we do not ask whether officer] right engage has the in unconstitutional seizures, cases, engaging searches and but whether Similarly, qualified-immunity 33. we general part in searches and seizures in is a public examine whether a official's acts fall ”) job-related powers responsibilities' his "scope authority” within his and thus his Holloman, 1266); functions,” (quoting 370 F.3d at see "discretionary not whether he was 1230, Cnty., Sims v. Metro. Dade 972 F.2d illegal authorized to commit an act. See (11th Cir.1992) (rejecting contention Hayes, O’Rourke v. 378 F.3d 1205-06 "any government (11th Cir.2004); time a official violates Holloman ex rel. v. Holloman Harland, clearly beyond (11th established law he acts 370 F.3d 1265-66 Cir. scope discretionary authority” 2004); of his as "un- Maggio Sipple, explaining question (11th Cir.2000); Int’l, tenable” and that "the 1350-51 n. 2 Harbert James, lawfully whether the acted (11th [is defendants dis- Inc. v. F.3d 1282-83 " question 1998). from] tinct of whether acted scope-of-authority 'inquiry Cir. discretion”). scope within the of their is not whether it was within the defendant's authority allegedly illegal to commit act. cases, way, inquiry noteworthy § Framed that is no more than It is that in con- ” Holloman, tautology.’ spiracy statutory an a the 42 untenable is element of U.S.C. Int'l, Inc., action, (quoting intracorpo- § F.3d Harbert 1985 cause of and the 1282). Rather, doctrine, gener- applicable, conspiracy F.3d at "we look to rate if thus action, temporari- al nature of the defendant's would bar relief in certain 1985 cases. The ly putting may exceptions appear developed aside the fact that it been to have to re- have impact purpose, committed for an unconstitutional duce the of the doctrine in manner, contrast, cases. 1983 case unconstitutional an unconstitu- extent, element, constitutionally inap- conspiracy required tional or under where is not propriate (noting may proceed against circumstances.” Id. "we do and Plaintiffs' claims

1263 fact, exceptions ap setting. of those ment Because none Plaintiffs do not Dickerson, we plied any “[did] to the facts show “series of discriminatory acts” adopt not reach the issue whether underlying bribery the 2005 charge—all circuit.” Id. at 770.35 them in this Subse that is claimed is the fabrication of a bribe. 1985(2) § in in the context quently, exceptions Because none discussed McAndrew, clearly recognized this Court in apply Dickerson would on the facts of criminal exception to the doctrine for case, we, Dickerson, this like the Court in where the conduct violates conspiracies do not reach adopt the issue of whether to McAndrew, criminal code. the federal them. (“Accordingly, 206 F.3d at 1034 we hold reasons, For all these we reverse the just intracorporate conspiracy denying qualified district court’s order im- conspira cannot shield a criminal doctrine Carver, Crook, Neal, munity to and Mad- cy prosecution from under the federal § conspiracy dox for Grider’s 1983 claim. code, criminal the doctrine cannot shield conspiracy, alleging the same the same D. Equal Against Protection Claim wrongdoing, liability criminal from civil Qualified Immunity Meeks— 1985(2)” (em § arising under U.S.C. Plaintiffs claim a Fourteenth Amend- added)). phasis Equal ment Protection violation first, in- Taking McAndrew this case Meeks for improperly calculating occupan- alleged civil conspiracy among volves an cy Skybar in numbers for a different man- Officers Crook and Carver and does not ner from other ap- establishments. On constituting evidence of involve conduct peal, argues Officer Meeks the district criminal in violation of the fed- conspiracy court in denying qualified erred him immu- excep- criminal code. As to the other eral nity. Dickerson, in tions discussed there is no parties agree evidence Officers Crook or Carver had an equal protection “class of one” claim. See “independent personal charging stake” in Olech, Village Willowbrook v. 528 U.S. bribery. Grider with As to the “series of 562, 564, 1073, 1074-75, 120 S.Ct. discriminatory exception, acts” the district (2000). prevail L.Ed.2d 1060 To on a summary granted judgment court on all claim, equal protection “class of one” conspiracy except claims for con- they Plaintiffs must show were intentional spiracy bribery to file the unfounded 2005 ly charge. differently This case does not involve a treated from ser- others who discriminatory ies of in an employ- “similarly acts were situated” and that there is Grider, police they supported by officers if violated constitutional the facts of that case.” rights, conspiracy F.Supp.2d even if no is shown. For at 1350. The district court did opinion, purposes of this we appear apply any also assume but exceptions of these Rather, excep- do not decide that the other circuits’ either. the district court stated ”[a]ll cases, apply tions cases of the officers’ actions—culminat- combined later, explain because as we ing bribery charge toward, facts of this unlawful — any exception. perhaps, case do not fit goal involving a common separate discretionary exercise of their au- Further, allegation there is no in this case thority, fairly city cannot be attributed to the corporate entity that the here was formed for meeting such that the of the minds crucial to illegitimate purposes. conspiracy liability is absent.” Id. After dis- quoted potential cussing policy problems 35. The court district ex- its view of with the doctrine, ceptions pointed intracorporate conspiracy listed in Dickerson and out the dis- any apply that Dickerson “did not reach of these trict court the doctrine to ”refuse[d] potential exceptions because were un- this set Id. at of facts.” 1350-51. 2146, 2153, 170 L.Ed.2d 975 128 S.Ct. for the difference no rational basis Olech, 564, (2008). 120 similarity 528 U.S. at “The between Olech treatment. Irvin, 1074; 496 Indus. v. at was obvious because the neighbors S.Ct. her Griffin Cir.2007). (11th 1189, 1202 To be F.3d governmental the decisionmak- Village, as situated,” comparators must “similarly the er, large a policy had a that did not involve “ identical in all relevant ‘prima be in application.” of factors its number facie Grif- ” at 1204 respects.’ Griffin, 496 F.3d fin, 496 F.3d at 1203. Campbell City, v. Rainbow (quoting re Supreme Court’s Olech decision Cir.2006)).36 (11th 1306, 1314 F.3d precursors that were lied on two cases court concluded Plaintiffs The district of one” formulation. In Al Olech’s “class disparate treatment between had shown County legheny Pittsburgh Coal Co. Skybar “similarly and its two situated” County, Webster 488 U.S. Commission of Italy” “In and “1716.” competitors, Gri- (1989), 336, 633, 102 109 S.Ct. L.Ed.2d 688 der, at F.Supp.2d 1338-41. Supreme the Court concluded the defen Previous “class of one” decisions from county plaintiffs equal pro denied the dant compel Supreme the Court and this Court by setting property tection their tax as that Plaintiffs have not our conclusion sessment at 50% of market value based on similarity between shown sufficient purchase prices, taxing recent sale but oth Italy” a “class and “In and “1716” state property er owners at 50% of market value Olech, in a example, of one” claim. For appraisal on old values their land based of plaintiff village landowner asked the of (that sold). recently at had not been Id. property connect her Willowbrook to 338-42, prac at 109 S.Ct. 635-37. “This Olech, municipal supply. the water gross disparities tice resulted the 563, Although at U.S. at 120 S.Ct. 1074. generally comparable assessed value of a village required the 15-foot easement thereby property,” denying plaintiffs the connect, it property from other owners to equal protection. Id. at 109 S.Ct. at the demanded a 33-foot easement from 635. sued, claiming plaintiff. plaintiff Id. The In City Bridge Sioux Co. v. Dakota village’s disparate requirement the of a County, 260 U.S. 43 S.Ct. larger equal protec- easement violated her (1923), Supreme L.Ed. 340 the Court rec- Olech, rights. Supreme In tion Id. ognized equal protection claim where plaintiff adequately held that Court at taxpayer’s property one was assessed equal protection stated a “class of one” of while all were 100% its value others claim. at at Id. 120 S.Ct. 1075. 55%, at government assessed without the Olech, there a single, one-dimensional articulating any proper- differences standard-—-a 15-foot vs. 33-foot ease- justify disparate ties that would as- -“against departures, which even for ment-— 445-47, sessments. Id. at 43 S.Ct. at 191- single plaintiff, readily a could be assessed. at Engquist, 92. See also 128 S.Ct. subjective, There was no indication ... [of] (interpreting Allegheny Pittsburgh ....” individualized determinations Engquist Dep’t Agric., Bridge). v. Ore. 553 U.S. Sioux of degree effectively perform Conversely, "The their duties. central issue here is what similarity required be 'similarly for two entities to situated’ too narrow definition 'similarly Too broad a considered situated.’ equal protec- exclude the zone could from subject 'similarly definition of situated’ could plainly disparately tion those who are treated nearly regulatory all state to consti- decisions Griffin, and without rational basis.” deny tutional review federal court state F.3d at 1203. regulators discretion need to critical Olech, light “must be evaluated in Pittsburgh, decision Allegheny In each variety objectively full of factors that an Supreme Court City Bridge, and Sioux governmental reasonable decisionmaker analyze ‘similarly situated’ able to “was in making would have found relevant succinctly high and at a order requirement challenged the chal- decision.” Id. at 1203. This is This was because of abstraction. were ulti- a more difficult standard to meet. Id. decisions lenged governmental 1204; Hillsborough Cnty. Pub. -they involved a Leib v. mately one-dimensional-— Comm’n, F.3d single question.” Transp. single answer to Grif- (11th Cir.2009) However, (affirming dismissal of at 1203. later fin, 496 F.3d “[tjhere regulatory “class of one” claim com- recognize that are some over cases variegated ... their mission’s consideration of “a set of state action which forms factors,” discretionary including decisionmak- of aesthetics and com- nature involve standards, array subjective, parison industry with to deter- ing based on vast Engqivist, Toyota qualified mine whether Prius as a individualized assessments.” (“class limousine); “luxury” Douglas Asphalt at of one” Co. 128 S.Ct. (11th Qore, Inc., in claims not viable equal protection context). Cir.2008) (plaintiff paving This Court’s contractor failed public employment allege similarly illustrates such a other contractors were recent decision Griffin “in discretionary, inquiry. light multi-dimensional situated of all the factors that objectively been would have reasonable” to Griffin, plaintiff owned a chicken officials). government subject rendering plant that was to stricter case, Similarly, than in regulations by city occupancy and state officials regulations Skybar odor calculation for reflected a multi- plants, including other imposed decisionmaking process. than those on dimensional stringent “more facility required in the Meeks to consider any rendering other chicken various including quality and new water controls. factors establishment’s state” footage, Griffin, plaintiff square segments, emergen- 496 F.3d at 1195. The its its regulators, pressured by city cy capacity, sprinkler sys- exit its fire and claimed state tems, officials, selectively enforcing regula- compliance were and its overall with the testified, animosity regulations. As tions towards the codes and Meeks based 999-person occupancy calculation of a plaintiff alleged Id. The another his plant. partly in limit is formulaic but also competitor Georgia process- chicken involves ing similarly judgment part was a situated com- discretion and on the business regulator determining Id. at 1202. that the overall parator. occupancy adequately classification com- distinguished This Court Olech’s “one- plies provisions all of the codes and inquiry from the “multi-di- dimensional” regulations. importantly, More the overall inquiry presented mensional” Griffin. goal occupancy of an number is safe occu- government’s Id. at 1203. “the Where pancy buildings. undeniably regulatory action was multi- dimensional, argue involving varied decisionmak- Plaintiffs Meeks miscalculated the occupancy criteria in a of discre- maximum limits in several ing applied series tionary ways. problem decisions made over an extended for the Griders is time,” calcula- period “similarly appeal situated” this is not of Meeks’s “ City or comparators prima ‘must be identi- tions to the courts relevant facie ” authorities, but rather it is a 1983 claim respects.’ cal in all relevant Id. 1203- 1314). against capacity in his for (quoting Campbell, 434 F.3d at Meeks individual cases, equal challenged denial of Plaintiffs’ constitutional government’s In such or “1716” had such constraints. Im prevail, Italy” To Plaintiffs rights. protection intentionally portantly, there is no evidence of the total Defendant Meeks must show Italy” of “In or “1716” differently occupancy limits arbitrarily treated let inspectors and no evidence the other similarly situated entities from other Italy” occupants “In or “1716” exceed 1000 for this no there is rational basis type system with the same of fire alarm in treatment. difference Third, Skybar had. Meeks articulated a protection equal Plaintiffs’ calculations, rational basis his First, oth for several reasons. claim fails have not shown ar Plaintiffs Meeks acted calcu made the on-site City inspectors er bitrarily intentionally denied Plaintiffs for “In standing to the areas lations as equal protection rights. their The evi This difference cal Italy” and “1716.” overwhelmingly dence this case shows enough negate a “class culators alone safety had genuinely Meeks concerns Second, evi claim.” the record of one safely exiting Skybar about customers event, dence, any is insufficient to show in capacity system. of its fire alarm It is Italy” the two other establishments —“In allowing difficult to fathom how a late- similarly Sky- situated to and “1716”—are night persons at bar to have 999 one time instance, parties For do not offer bar. putting is it out of business.38 (1) showing: citations how the record sum, In Plaintiffs have not shown fire-suppression sys emergency exits and equal protection by violation Defendant Italy” compared in “In “1716” tems or (sued individually), Meeks and the district (2) Skybar; layout of the exterior or accordingly denying court erred in Meeks “1716,” Skybar, Italy,” “In or or interior qualified immunity equal pro- on Plaintiffs’ how the other two facilities were even tection claim. square footage organized; and “1716,” how it Italy” “In much less Alternatively, minimum, at a Rather, compared Skybar. the record Plaintiffs have not shown Meeks violated evidence, cited, any that where is shows clearly established federal law. In deter Skybar Italy” from “In was mining a constitutional right whether was different “1716” at the time of Meeks’s calculations violation, clearly at established the time of Italy” “In relevant, because and “1716” were ... dispositive inquiry “[t]he Skybar fully compli smaller than and were whether it would be clear to a reasonable City.”37 Sky- all ant “with Codes of the officer that his conduct was unlawful in the Saucier, occupancy bar’s level constrained was situation he confronted.” 2156; emergency capacity its exit and fire alarm at U.S. S.Ct. see also Pelzer, “In system Hope but there is no evidence that 536 U.S. at 122 S.Ct. Italy portion 37. Meeks's Affidavit states: “In to the front of the bar that was compliance were in with all Codes portion remodeled and that the rear was City, having sprinkler such as a fire and grandfathered ignores, among in. This other such, system, permitted and as was [sic] things, system that this one fire alarm is for square per person the 5 calcula- to use foot Skybar the entire structure. Plaintiffs cite no Italy tion. and 1716 were smaller estab- system evidence of a second fire alarm in the Sky ... lishments than Bar." Even Plaintiffs Skybar. rear of Italy” that do not claim either “In or "1716” occupancy exceeding persons had limits 38. The district court found that “the evidence or even that these had the fire bars same is insufficient for a factfinder to conclude that Rather, system Skybar. alarm Plaintiffs conspired any person Meeks other por- differentiate between the front and rear improperly occupancy calculate numbers person tions of and claim the 1000 Grider, Skybar.” F.Supp.2d at 1348. Skybar's system applies limit as to fire alarm (“the officer, a law enforcement so he question ... is wheth cannot salient at 2516 rely statutory, discretionary-function the time of [at of the law er the state However, fair gave immunity. “state-agent” ... immu- [the defendants] violation] Meeks, alleged treatment of warning nity may their extend to which the dis- unconstitutional”).39 recognized by plaintiff] implicitly trict court also [the Supreme law in the U.S. state-agent immunity There is no case citing Cranman’s Court, Court, Alabama Su or the denying immunity standards Meeks. circum Grider, with similar factual preme Court F.Supp.2d (citing at 1354 Ex (or addressing any way 405). Cranman, even stances parte 792 So.2d at To be Alabama) for bars in occupancy clear, limits immunity potentially we refer to the Meeks on notice of a clear put would have immuni- “state-agent available to Meeks as have right that Plaintiffs ly established ty.” Plaintiffs in this case. Nor have claimed As to Plaintiffs’ tortious interference authority that would any precedential cited claims, summary court the district denied that, given the

have made clear to Meeks explicitly any judgment discussing without safety buildings, he was violat need for immunity state-law defenses Defend equal protec ing Plaintiffs’ constitutional denying effect im ants40 —in Defendants’ accordingly The district court rights. tion munity argument sub silentio. See Gri immunity to denying qualified erred der, Supp.2d. 628 F. at 1353. equal protection claim. Meeks on Plaintiffs’ type immunity For either of state-law apply, they Defendants first must show E. Claims State-Law performing were duties within their discre- brought also state-law claims Plaintiffs tionary alleged functions when the torts against fraud Meeks and for tortious for parte Reynolds, occurred. Ex Estate of interference with contractual and business (state-agent immunity); 946 So.2d at 452 Carver, Crook, Maddox, against relations Wood, (discretionary-func- 323 F.3d at 883 Neal, As to Plaintiffs’ fraud and Meeks. immunity). argue Plaintiffs Defen- tion Meeks, the district court claims require- dants cannot meet this threshold “discretionary-function im- denied Meeks prove can ment because “[n]o [Defendant] pro- have munity” because “the Griders committing various tortious acts willfully, evidence that Meeks acted duced conspiracy put of a furtherance faith, be- maliciously, fraudulently, bad Griders out of business is within the line a mistaken yond authority, his or under ” .... scope any and of of their duties Grider, of the law.” interpretation the APD Considering officers F.Supp.2d (quotation at 1354-55 marks omitted). earlier, first, investigating prosecuting Meeks was not and viola- As noted holdings, requirement may we look to and clear notice ments and broad case 39. This fair (1) partic- precedential that are tied to their ways: cases be met in three the words pro- ular facts. Id. at 1351-52. When caselaw is pertinent or constitutional federal statute needed, we look to decisions of the U.S. Su- may specific clearly so as to estab- vision be Court, Court, and, applica- preme where judicial the law in total absence of lish even ble, law, highest pertinent court of the state. Vinyard interpreting v. Wil- decisions Ala., Cnty., Butler 268 F.3d son, (11th Cir.2002); (2) Marsh v. (11th Cir.2001). 1032-33 n. 10 principle broad statements of in case "some particularized are not facts and law tied applicable summary judgment clearly law in the motion for can establish 40. Defendants' facts,” immunity expressly argued id. at from to different sets of detailed for state-law future 1351; commonly, pursuant claim when we lack the tortious interference and most statutory pronounce- both Cranman and Ala.Code 6-5-338. explicit or constitutional clearly prescribes performing law fall within the tión the manner tions of the agent performs the duties and State of a law enforce- scope of official duties ” .... the duties that manner Cran- ar- investigations ment officer. Police and man, 405; Wood, 792 So.2d at see also usually “discretionary are considered rests (“Discretionary at acts are ‘those F.3d scope the line and of ... within functionfs] to which there is acts as no hard and fast purposes enforcement duties” for the law rule as to the course of conduct that one immunity. discretionary-function Swan not take must must and those acts City of Hueytown, v. 920 So.2d requiring judgment exercise in choice and (Ala.2005) (law 1078-79 enforcement officers involving just proper what is un- perform “discretionary functions” under “ ”) Sheth, (quoting der the circumstances.’ judg- when ‘exercis[e] 6-5-338 1239). occupancy 145 F.3d at Meeks’s de- criminal ment the enforcement ” easily fall terminations within the adminis- laws,’ including “gathering of information adjudications trative over which he was arrest”) subsequent (quoting Cran given responsibility by City. man, 405); Sheth, 792 So.2d 145 F.3d at Thus, all per- because Defendants were (police 1238-39 officers’ use of force and acts, forming discretionary Plaintiffs must qualify discretionary arrest of plaintiff willfulness, show sufficient “bad intent” — law); functions under Alabama Telfare malice, fraud, faith, beyond bad actions Huntsville, 841 So.2d authority, or actions taken under a mistak- (Ala.2002) (“Generally, arrests and at- interpretation en of law. See Ex Parte tempted arrests are classified as discre- Cranman, 792 So.2d at 405. For the rea- tionary purposes functions” for the 6- above, sons outlined Grider’s version of (law 5-338); Wood, 323 F.3d at en- requirement events meets that for Officers driving forcement officer’s issuance of cita- Crook, Carver and but not for Officers discretionary tion and arrest were acts for Thus, Maddox and Neal. as to Plaintiffs’ § immunity). 6-5-338 claim, tortious interference we affirm the Meeks, As to Alabama’s com state-agent immunity denial of both and state-agent immunity protects mon-law statutory, discretionary-function immunity immunity him. and State-agent requires that Carver Crook and reverse the deni- al as to Maddox and Neal. acting Meeks first show he was within a discretionary defined of class acts. Ex Meeks, As to Plaintiffs have not parte Reynolds, Estate 946 So.2d at 452. of regulating Sky- shown Meeks’s actions in State-agent immunity protects a state malicious, willfully wrong, bar were in bad for, agent among things, other “exercising faith, beyond authority, his or were made judgment his or her in the administration interpretation under mistaken of law. a department agency government, or occupancy Meeks’s calculations were the to, including, making but not limited ... product complex, of a multi-dimensional adjudications; administrative ... [and] evaluation. There is no evidence that discharging imposed depart duties on a fraudulently, maliciously, Meeks acted or statute, rule, agency by ment or regula or in making occupancy in bad faith his calc tion, statute, rule, regula- insofar as the replete ulations.41 The record is with ev- (deceit); representation); § 41. Each of the three fraud theories on which Ala.Code 6-5-103 Ala., Inc., rely requires misrepre parte Plaintiffs the willful Ex Dial Kennels 771 So.2d (Ala.1999) (fraudulent suppression suppression). sentation or willful of a material parte DaimlerChrysler Corp., interlocutory appeal fact. Ex Because our limited ad (Ala.2006) (fraudulent issues, only immunity So.2d mis dresses we limit this prose- Plaintiff 1983 malicious safety relevant Grider’s that Meeks had idence claim, against cution Defendant Carver 1000 oc Skybar exceeding about concerns prose- Plaintiff Grider’s state law malicious sys and fire alarm to its exits cupants due claim, against cution and Defendants Car- his discre he acted within tem and that ver and Crook on Plaintiffs’ tortious inter- also have not authority. Plaintiffs tionary ference claims under state law. Italy” and “1716” Skybar and “In shown PART, AFFIRMED IN REVERSED Accordingly, we similarly situated. are PART, AND REMANDED. IN state- court’s denial of reverse the district immunity to Meeks on Plaintiffs’ agent KRAVITCH, Judge, concurring Circuit and fraud claims.42 tortious interference dissenting part: part and A, B, parts I concur in and C of the III. CONCLUSION majority opinion’s discussion I section. sum, affirm the district court’s we dissent, however, respectfully from the immunity as to Grider’s qualified denial of majority’s D E that parts conclusion and claim prosecution § 1983 malicious qualified Andrew Meeks was entitled to qualified state-agent immunity. reverse denial and Carver. We (1) Crook, Maddox, Carver, immunity Determining whether Meeks is entitled conspiracy Neal from Grider’s immunity inquiry. is a fact-intensive (2) claims, from Plaintiffs’ to Meeks interlocutory appeal Because this is an claim. equal protection from an order on the defendants’ motion summary my judgment, dissent relies claims, we af- to Plaintiffs’ state-law As on the version of these facts that is most firm the district court’s denial of state-law favorable to the Griders. (1) immunity to Carver from Grider’s First, the record contains evidence claim, and prosecution malicious state-law square-footage Meeks calculated the stan from Plaintiffs’ to Carver and Crook standing space dard for differ reverse tortious interference claim. We ently than for comparator the two estab im- court’s of state-law the district denial Although majority opinion lishments. from Plain- munity to Maddox and Neal correctly inspectors states that other made tiffs’ tortious interference claim. We re- comparator calculations for the on-site immunity state-agent verse the denial of (In 1716), Italy establishments Meeks Meeks from Plaintiffs’ tortious interfer- deposition testimony in admitted his to ence and fraud claims. ultimately approving five-square-feet- proceed The bottom line is the case will per-person standing space standard for against comparator on remand Defendant Carver on the two establishments.1 interlocutory Nippon, solely appeal. discussion to whether Meeks had fraud- F.3d intent, ("We and we do whether at 754 will not address claims that are ulent not consider scope sufficiently beyond the of the issue certified the record evidence shows the for an interlocutory appeal.”) (quotation required elements of a fraud claim. We marks other omitted). any alterations also do not consider the merits of other state law claims. stated that he made the 1. Meeks decision five-square-feet-per-person argue two-year use a standard for also that the Defendants comparator fraud in Ala- the "concentrated areas” in the statute of limitations for claims requires later clarified that his dismissal of the fraud claim establishments. Meeks bama application the five- portion of Meeks’s discussion of the Meeks because filing square-feet-per-person years standard to concen- conduct occurred two before the 21, 2007). (November talking argu- "that been [he had] This trated areas of this suit corresponded standing space beyond scope about” to “the ment is of Defendants' no- appeal properly presented in for the concentrated areas.” tice of and is not Skybar’s assigned admitted that he a number to calculate maximum oc- Meeks also stan- higher seven-square-feet-per-person cupancy. Skybar, “standing space” dard to even Second, the argue Skybar’s Griders that IBC(2003) assigns a five-

though the systems fire-suppression up were to code square-feet-per-person standard to stand- Skybar existing building because was an § ing space. See IBC 1004 tbl.1004.1.2. “grandfathered that was in” under August in an explained Meeks IBC(2003) § 3401.1 of the and because that he letter the Griders derived the they sprinkler had added a fire alarm and higher seven-square-feet-per-person stan system. They argue also Skybar’s standing space dard for from the IBC(2003) only required a fire alarm for (SBC).2 Building 1997 Standard Code portion Skybar the front only because high Meeks stated that he used the SBC’s that section had been recently altered. Skybar’s er standard because exits and § 3401.1. They See IBC thus conclude fire-suppression systems were not up building only that the code limit- properly IBC(2003). standards of He later 1,000 portion Skybar ed the front explained ground- that four out of the five people. any quo floor exits “were worse than stair facts, On these construed in the Gri- any published tient code” and that the favor, ders’s Andrew Meeks both violated fire alarm installed the Griders could clearly established federal law and acted 1,000 only accommodate people. Meeks beyond authority. Accordingly, his I re- also testified 104.10 of spectfully dissent majority opin- from the IBC(2003) authorized him to apply the ion and submit that Meeks is not entitled Skybar. Finally, SBC’s standards to he qualified to either or state-agent immunity. IBC(2003) claimed that the him gave ultimate discretion to make determinations Qualified A. Immunity public safety. the interests of majority concludes that Meeks was identify The Griders problems several qualified immunity entitled to because the First, explanations. Meeks’s ar- Griders failed to state a valid class-of-one gue IBC(2003), Skybar’s that under the equal-protection claim. See Vill. Wil- exit capacity square- has no effect on the Olech, lowbrook v. 528 U.S. 120 S.Ct. footage standing They standard for space. (2000). 145 L.Ed.2d 1060 In particu- IBC(2003) point out that 1005.1 of the lar, majority concludes that the Gri- requires the building inspector to factor in ders did establish that and its exit capacity calculating when an al- comparator two Italy establishments —In ternative maximum occupancy figure “prima and 1716—are in all identical based on the “minimum facie required egress Irvin, aspects.” relevant Indus. v. width.” See IBC 1005.1. If this Griffin alter- (11th Cir.2007). 1203-04 native number is lower than the maximum however, majority, The fails to limit its occupancy based on a square-footage stan- analysis to evidence relevant to IBC(2003) whether dard, the requires the building Skybar similarly was situated to the two inspector to calculate the maximum occu- comparator establishments pancy pur- for the structure for the based on this “egress-width” case, assigning In a poses square-footage number. this it stan- is undisputed that Meeks did not use dard to standing space. particular, In the Building 2. The Standard Code inwas effect in in late 2003. IBC(2003) City adopted Auburn until the the failing produced to The Griders have otherwise the for majority faults Griders (1) all emergen- evidence that three businesses have the about the information provide classification, zoning same have areas of systems In cy fire-suppression exits and (2) 1716; standing space, “existing buildings,” are layout the of the exterior Italy or 1716; assigned maximum-occupancy Skybar, Italy, or and were interior of or IBC(2003) (3) Italy by Meeks while the footage of In loads was square enough to effect. These facts are convince juror Skybar that a reasonable warranted information, however, is of this Most Italy to In 1716 for similar treatment determining square-foot- to irrelevant a purposes assigning square-footage First, standing space. for age standard standing space. standard to IBC(2003) that the over- does not state majority to the The also concludes that facility of a is relevant Meeks all size treating Skybar a a rational applied standard to be to had basis for square-footage Second, differently similarly from standing space. the ex- its two situated building’s Oleeh, layout comparators. of the exterior or interior of See 528 U.S. at act majority accepts because it is undis- 120 S.Ct. 1073. The two Skybar is not relevant applied purportedly that Meeks a different stan- rational bases for Meeks’s cal- puted (1) than Skybar’s standing space Skybar’s poor capacity, he culations: exit dard standing space Skybar’s fire-suppression system. kind of in and did to the same persuasive Fi- The first of these is not comparator the two establishments. because IBC(2003) juror nally, table 1004.1.2 of the ex- reasonable could conclude that exit building inspector capacity any bearing that the does not have on the plicitly states assign five-square-feet-per-person square-footage standard standing should standing space; capacity space. similarly exit The second reason is una- standard only vailing dispute relevant to the alternative maxi- because Meeks did not that is “egress sprin- the installation of the fire alarm and mum-occupancy load based ultimately brought Skybar’s fire-prevention sys- that did not control kler width” up tems to code. Meeks’s calculations. only Finally, qualified immunity, factor cited to avoid arguably

The relevant majority Skybar’s alleg- is whether fire- must that Meeks’s Griders establish suppression systems edly discriminatory are similar to those of calculations violated Vinyard It law. comparators. undisputed clearly the two established See Wilson, (11th fire-suppression systems that 1351-52 Cir. 2002). comparator up point, question two were On this “the salient establishments Griders, however, ... cited the ... is whether the state of the law code. The IBC(2003) warning fair gave [the officers] to assert that their installation their system plaintiff] treatment un- sprinkler alleged of a fire alarm and [the Pelzer, Skybar brought Skybar’s fire-prevention Hope v. 536 U.S. constitutional.” 730, 741, fire alarm 153 L.Ed.2d systems up to code and S.Ct. (2002). Supreme part limited the front Court has held that 1,000 Clause, dispute Equal per- these under the Protection “a people. Meeks did not Thus, right free from intentional provid- the Griders have son has a to be assertions. discrimination, stage arbitrary at this in the whether oc- enough ed information Skybar’s by express terms of a statute or litigation to establish that fire- casioned improper through duly execution suppression systems were similar to those its Olech, agents.” 528 U.S. at comparator of the two establishments. constituted Here, Furthermore, Skybar fair even if not Meeks had had S.Ct. allegedly discriminatory warning code, that the nothing to up been the record building uniform application of Auburn’s that Meeks the suggests had discretion to Equal regulations would the Pro- violate IBC(2003) completely ignore the and select Clause, and he should not have tection a from square-footage standard the SBC. immunity. granted qualified been initially Meeks testified that he. was au- IBC(2003) depart thorized to from the un- State-Agent Immunity B. § But der 104.10. this section would majority also concludes that Meeks if peti- have mattered the Griders had state-agent immunity to because is entitled a tioned for modification. See IBC occupancy his calculations were discretion- (allowing “upon 104.10 for modifications ary allege and the did not facts Griders application of the owner or the owner’s sufficient to establish that his actions were Furthermore, representative”). although malicious, faith, “willfully wrong, bad IBC(2003)’s “purpose” safeguard the is to beyond authority, ... his made under health, safety “public general and wel- interpretation mistaken of law.” Ex Parte fare,” 101.3, id. it see does allow (Ala.2000). Cranman, I 792 So.2d building inspector completely ignore to its however, believe, that the Griders have fact, provisions. although 104.1 of provided enough to evidence establish IBC(2003) building affords officials the beyond authority Meeks acted his in deter- authority “interpretations” to render mining square-footage standard for IBC(2003) adopt pro- and to and “policies Skybar. cedures,” it specifically states that those beyond “A agent State acts authori- [his] policies procedures “shall not have the ty and is therefore not immune when he or waiving requirements specifically effect of discharge pursuant she duties ‘fail[s] provided for this code.” Id. Construed regulations, detailed rules or such as those ” favor, provision sug- the Griders’s on a stated checklist.’ Giambrone v. gests authority that Meeks exceeded his (Ala.2003) Douglas, 874 So.2d square-footage when he chose a standard Butts, (quoting parte Ex 775 So.2d from the SBC. (Ala.2000)). undisputed It is that all of Skybar’s maximum calculations oc- Thus, view, in my al- Griders have cupancy in governed 2005 and 2006 were leged sufficient evidence to show that IBC(2003). Meeks, however, by ad- authority, Meeks acted outside of his mits to the SBC to calculate employing state-agent he is therefore not entitled to maximum occupancy Skybar’s number for immunity. standing space. deposition, In his Meeks claimed that he from departed

IBC(2003) Skybar up because was not But, above, explained

code. there is suggesting

evidence was not IBC(2003)

in violation of the that its capacity

exit should not have affected the Thus,

square-footage standard. under the

version of the facts most favorable to the

Griders, safety there was no relevant rea-

son for depart Meeks from the

IBC(2003) calculating Skybar’s when

square-footage standard.

Case Details

Case Name: Grider v. City of Auburn, Ala.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 7, 2010

Citation: 618 F.3d 1240

Docket Number: 09-13261

Court Abbreviation: 11th Cir.