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In re: Angel Morales Cuin, as personal representative of the Estate of Ricardo Morales Cuin v. The City of Birmingham and Alonzo Cornelious Coleman IV

2026-10-16

Authorities cited

Opinion

majority opinion

Rel: October 16, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2026-2027

SC-2025-0482

Ex parte Alonzo Cornelius Coleman IV and The City of

Birmingham

PETITION FOR WRIT OF MANDAMUS

(In re: Angel Morales Cuin, as personal representative of the

Estate of Ricardo Morales Cuin, deceased

v.

The City of Birmingham and Alonzo Cornelius Coleman IV)

(Jefferson Circuit Court: CV-22-901939)

SC-2025-0482

BRYAN, Justice.1

Alonzo Cornelius Coleman IV, a police officer employed by the

Birmingham Police Department ("the police department"), and the City

of Birmingham ("the city") petition this Court for a writ of mandamus

directing the Jefferson Circuit Court to enter a summary judgment in

their favor on the ground that they are entitled to immunity. We grant

the petition and issue the writ.

Factual Background and Procedural History

Officer Coleman was on patrol on the night of January 15, 2022,

when the police car that he was driving struck Ricardo Morales Cuin

("Ricardo") as he was walking on Tarrant-Huffman Road in Birmingham.

Ricardo died as a result of the collision. The accident occurred slightly

after 11:00 p.m. during a rainfall. At the time of the accident, Officer

Coleman was listening to a podcast playing on his personal cell phone;

the cell phone was resting on his bag on the passenger seat. In his

deposition, Officer Coleman testified that he had recently begun his

patrol and that he had started playing the podcast when he had been at

1This case was previously assigned to another justice on this Court

before it was reassigned to Justice Bryan on June 15, 2026.

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the police station earlier. He testified that he did not see Ricardo before

the collision. The speed limit on Tarrant-Huffman Road at the location

of the accident was 35 miles per hour; as we will discuss below, there is

conflicting evidence regarding whether Officer Coleman was speeding at

the time. Ricardo was wearing dark clothing, and the coroner's report

indicates that he was intoxicated.

Ricardo's brother, Angel Morales Cuin ("Angel"), as the personal

representative of Ricardo's estate, sued Officer Coleman and the city,

alleging a claim of wrongful death against each defendant. Angel sued

Officer Coleman in both his official and individual capacities. The

wrongful-death claim against Officer Coleman was based on theories of

negligence and wantonness, and the wrongful-death claim against the

city was based on the theory of vicarious liability. Officer Coleman and

the city each moved for a summary judgment, asserting various grounds.

In relevant part, Officer Coleman and the city asserted that the officialcapacity claim against Officer Coleman is barred by State immunity and

that the individual-capacity claim against him is barred by State-agent

immunity. The city further asserted that it is not vicariously liable for

Ricardo's death because, the city said, Officer Coleman is immune. The

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circuit court entered a partial summary judgment in favor of Officer

Coleman on the wrongful-death claim filed against him in his official

capacity, concluding that that claim is barred by State immunity. The

circuit court denied the summary-judgment motion as to the wrongfuldeath claim filed against Officer Coleman in his individual capacity and

as to the wrongful-death claim against the city. In relevant part, the

circuit court concluded that Officer Coleman is not entitled to State-agent

immunity regarding the individual-capacity claim. Officer Coleman and

the city then filed a mandamus petition with this Court, arguing that

Officer Coleman is entitled to State-agent immunity and that the circuit

court erred by not entering a summary judgment on all claims.

Standard of Review

The general rule is that the denial of a summary-judgment motion

is not reviewable. However, an exception to that general rule exists here:

the denial of a summary-judgment motion grounded on a claim of

immunity is reviewable by a mandamus petition. Ex parte Turner, 840

So. 2d 132, 135 (Ala. 2002).

" A writ of mandamus is an extraordinary remedy, and

it will be 'issued only when there is: 1) a clear legal right in

the petitioner to the order sought; 2) an imperative duty upon

the respondent to perform, accompanied by a refusal to do so;

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3) the lack of another adequate remedy; and 4) properly

invoked jurisdiction of the court.' Ex parte United Serv.

Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)."

Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998).

"In reviewing a trial court's ruling on a motion for a

summary judgment, we apply the same standard the trial

court applied initially in granting or denying the motion. Ex

parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999).

" 'The principles of law applicable to a motion

for summary judgment are well settled. To grant

such a motion, the trial court must determine that

the evidence does not create a genuine issue of

material fact and that the movant is entitled to

judgment as a matter of law. Rule 56(c)(3), Ala. R.

Civ. P. When the movant makes a prima facie

showing that those two conditions are satisfied,

the burden shifts to the nonmovant to present

"substantial evidence" creating a genuine issue of

material fact.'

"742 So. 2d at 184. '[S]ubstantial evidence is evidence of such

weight and quality that fair-minded persons in the exercise of

impartial judgment can reasonably infer the existence of the

fact sought to be proved.' West v. Founders Life Assurance

Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)."

Swan v. City of Hueytown, 920 So. 2d 1075, 1077-78 (Ala. 2005). " 'Our

review [of the circuit court's ruling on a summary-judgment motion] is

further subject to the caveat that this Court must review the record in a

light most favorable to the nonmovant and must resolve all reasonable

doubts against the movant.' " Harper v. Coats, 988 So. 2d 501, 503 (Ala.

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2008) (quoting Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341,

344 (Ala. 1997)).

Discussion

I.

Officer Coleman and the city argue that Officer Coleman is entitled

to State-agent immunity as defined by Ex parte Cranman, 792 So. 2d 392

(Ala. 2000), and § 6-5-338(a), Ala. Code 1975.2

"[P]eace officers are afforded immunity by Ala. Code 1975, §

6-5-338(a), and the test for State-agent immunity set forth in

Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), as modified in

Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006)

(incorporating the peace-officer-immunity standard provided

in § 6-5-338(a) into the State-agent-immunity analysis found

in Cranman). See Ex parte Kennedy, 992 So. 2d 1276 (Ala.

2008), and City of Birmingham v. Brown, 969 So. 2d 910, 916

(Ala. 2007) ('Immunity applies to employees of municipalities

in the same manner that immunity applies to employees of

the State.' (citing Cranman, supra))."

2Cranman was a plurality decision, but a majority of this Court

later adopted the Cranman standard in Ex parte Butts, 775 So. 2d 173

(Ala. 2000). In 2025, the Legislature repealed § 6-5-338 and replaced it

with § 6-5-338.1 et seq., Ala. Code 1975. The new law applies "to any

cause of action that accrued on or after October 1, 2025." § 6-5-338.4(a),

Ala. Code 1975. Because this action accrued before that date, the new

law does not apply here.

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Suttles v. Roy, 75 So. 3d 90, 94 (Ala. 2010). In relevant part, Cranman,

as modified by this Court in Hollis v. City of Brighton, 950 So. 2d 300

(Ala. 2006), provides:

"[A] State agent shall be immune from civil liability in

his or her personal capacity when the conduct made the basis

of the claim against the agent is based upon the agent's

"….

"(4) exercising judgment in the enforcement of the

criminal laws of the State, including, but not limited to, lawenforcement officers' arresting or attempting to arrest

persons[, or serving as peace officers under circumstances

entitling such officers to immunity pursuant to § 6-5-338(a),

Ala. Code 1975]."

792 So. 2d at 405 (the bracketed language is the modification added by

Hollis, see 950 So. 2d at 309).

However, there are two exceptions to State-agent immunity. Even

if a State agent's conduct falls within a Cranman category of immunity

(such as the fourth category quoted above), a State agent will not be

entitled to immunity

"(1) when the Constitution or laws of the United States,

or the Constitution of this State, or laws, rules, or regulations

of this State enacted or promulgated for the purpose of

regulating the activities of a governmental agency require

otherwise; or

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"(2) when the State agent acts willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or

under a mistaken interpretation of the law."

Cranman, 792 So. 2d at 405 (emphasis added).

A defendant asserting State-agent immunity has the initial burden

of establishing that his or her relevant conduct falls under one of the

enumerated categories of State-agent immunity established by

Cranman. Ex parte Kennedy, 992 So. 2d 1276, 1282 (Ala. 2008). If the

defendant establishes that the relevant conduct falls under a Cranman

category, the burden then shifts to the plaintiff to show that one of the

exceptions under Cranman applies. Id. In this case, the parties dispute

whether Officer Coleman's conduct is covered by a Cranman category

and, if a Cranman category applies, whether Angel established an

exception. Angel asserts that, if Officer Coleman's conduct falls under a

Cranman category, one of the exceptions would apply, i.e., that he was

acting beyond his authority at the time of the accident. Although it is

unclear, the circuit court appears to have implicitly concluded that a

Cranman category applies, because the court explicitly concluded that

there is substantial evidence indicating that an exception to immunity

applies, i.e., that Officer Coleman exceeded his authority by "fail[ing] to

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follow mandatory rules and procedures by using his personal phone to

play and listen to a YouTube video" when the accident occurred. That is,

the circuit court evidently determined that Officer Coleman had met his

burden and, thus, that the burden had shifted to Angel to show that an

exception applies.

II.

Officer Coleman and the city argue that Officer Coleman's conduct

at the time of the accident was covered under the fourth Cranman

category, quoted above. Insofar as the circuit court may have implicitly

determined that Officer Coleman's conduct was covered under the fourth

Cranman category, the circuit court was correct. As noted, under the

fourth Cranman category, a State agent is immune from liability in his

or her individual capacity when the conduct underlying the claim is based

on the State agent's "exercising judgment in the enforcement of the

criminal laws of the State, including, but not limited to, law-enforcement

officers' arresting or attempting to arrest persons[, or serving as peace

officers under circumstances entitling such officers to immunity

pursuant to § 6-5-338(a), Ala. Code 1975]." 792 So. 2d at 405 (the

bracketed language is the modification added by Hollis, see 950 So. 2d at

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309). Thus, this Court has incorporated the peace-officer-immunity

standard provided in § 6-5-338(a) into the State-agent-immunity analysis

found in the fourth Cranman category. Section 6-5-338(a) provides, in

part: "Every peace officer … shall at all times be deemed to be officers of

this state, and as such shall have immunity from tort liability arising out

of his or her conduct in performance of any discretionary function within

the line and scope of his or her law enforcement duties." Here, the parties

dispute whether the claim against Officer Coleman arises out of "conduct

in performance of a discretionary function."

The question of what constitutes a discretionary function in this

context must be evaluated in light of the specific and unique job

responsibilities of law-enforcement officers. Officer Coleman and the

city argue that the relevant function here is the "act of patrolling" and

that the exercise of discretion is inherent in that act. Conversely, Angel

argues that a "routine patrol" is not a discretionary function under the

fourth Cranman category; he seems to contend that the relevant function

here is simply driving a car under routine, nonemergency conditions, a

common activity that ordinary people do daily. Angel's answer at 10. We

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find Officer Coleman and the city's argument on this issue to be

persuasive.

Officer Coleman and the city argue:

"The Rules and Regulations of the Birmingham Police

Department required Officer Coleman to 'constantly patrol'

the East Precinct, 'familiarize himself with the everyday

routine of people' in the East Precinct, to monitor his beat 'for

conditions requiring police attention,' to '[g]ive attention to

crime hazards,' and to 'render all necessary police service in

his assigned area' -- all of which require some degree of

judgment and discretion. …

"... The Department's Rules and Regulations allow

Officer Coleman to use his discretion in furtherance of the end

goal to 'achieve voluntary compliance with traffic laws and

regulations.' "

Officer Coleman and the city's petition at 23-24. We agree with Officer

Coleman and the city's argument insofar as they argue that "[t]he act of

patrolling naturally involves the exercise of an officer's judgment and

discretion" and requires "more than the everyday conduct of driving a

motor vehicle." Officer Coleman and the city's petition at 24. Certainly,

officers patrolling are doing more than just driving; they are persistently

exercising judgment and discretion in a manner that non-lawenforcement drivers do not. The relevant standard here is broad: "Every

peace officer ... shall have immunity from tort liability arising out of his

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or her conduct in performance of any discretionary function within the

line and scope of his or her law enforcement duties." § 6-5-338(a). In

light of this broad language, we conclude that the act of patrolling, which

Officer Coleman was doing when the accident occurred, is a discretionary

function and is thus covered under the fourth Cranman category, which

incorporates § 6-5-338(a). This conclusion is consistent with "our

recognition that police officers have to be accorded a high degree of

discretion in the performance of their duties." Blackwood v. City of

Hanceville, 936 So. 2d 495, 507 (Ala. 2006).

Angel cites Walters v. De'Andrea, 312 So. 3d 430 (Ala. 2020), and

Ex parte Venter, 251 So. 3d 778 (Ala. 2017), in support of his argument

that Officer Coleman's conduct is not covered under the fourth Cranman

category. However, those cases are distinguishable from the current

case. In Walters, like this case, a police officer was involved in an

automobile accident. In concluding that the police officer's conduct was

not covered under the fourth Cranman category, this Court placed

significance on the fact that the officer was not patrolling. Unlike in this

case, the police officer in Walters "admitted in her own testimony that

she had completed her patrol shift and that she was simply returning to

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her precinct to turn in paperwork, not performing any patrol duties." 312

So. 3d at 435. This Court concluded that the officer was not entitled to

immunity under the fourth Cranman category:

"[The plaintiff] contends, correctly in our view, that this

case presents a very similar situation to the one presented in

[Ex parte] Venter[, 251 So. 3d 778 (Ala. 2017),] because [the

police officer], by her own admission, was not responding to

an emergency call or engaged in the act of patrolling when the

accident occurred. Rather, she was simply returning to her

precinct at the end of her shift to turn in paperwork. As the

Venter Court observed: '[S]uch action can be characterized

only as a routine action requiring the exercise of due care.' Ex

parte Venter, 251 So. 3d at 783."

Walters, 312 So. 3d at 436.

The case cited by the Court in Walters, Venter, concerned a traffic

accident involving a firefighter; the relevant Cranman immunity

category in that case was the first Cranman category, which concerns

" formulating plans, policies, or designs." Cranman, 792 So. 2d at 405.

Regarding whether a firefighter's "patrolling" could be covered by the

first Cranman category, the Court stated:

"[A]ssuming, without deciding, that the act of 'patrolling'

could somehow be equated with formulating policy or

procedure, [the firefighter], by his own admission, was not

engaged in the act of patrolling when the accident occurred.

Rather, [the firefighter] stated in his affidavit that, at the

time of the accident, he was 'returning' to the fire department

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'after riding around assigned territory within the City of

Selma.' "

Venter, 251 So. 3d at 782-83.

In denying State-agent immunity to the defendants in Walters and

Venter, this Court placed significance on the fact that the officer in

Walters and the firefighter in Venter were no longer on patrol when the

accident occurred. Here, Officer Coleman was on patrol when the

accident occurred, and, thus, this case presents a distinct issue. Because

we conclude that discretion is inherent in the act of patrolling, Officer

Coleman's conduct is covered under the fourth Cranman category.

Walters and Venter are materially distinguishable and are not

controlling here.

Angel also cites Town of Loxley v. Coleman, 720 So. 2d 907 (Ala.

1998), but Loxley is not controlling either. In Loxley, a town employee

was driving a truck transporting prisoners when a prisoner fell out of the

back of the truck; the driver was maneuvering around potholes at the

time. The Court in Loxley stated: " '[D]iscretionary functions are

characterized by planning and decision-making, while ministerial

functions are characterized by operational tasks.' … Where the exercise

of the defendant's function requires due care, rather than difficult

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decision-making, the function is merely ministerial." 720 So. 2d at 909

(quoting Ex parte Alabama Dep't of Forensic Scis., 709 So. 2d 455, 458

(Ala. 1997)). In denying the employee immunity, this Court stated that

"trying to avoid potholes while driving a motor vehicle is a ministerial,

not a discretionary, function." 720 So. 2d at 909. However, the analysis

in Loxley must be read in the context of that case. Loxley did not concern

a police officer on patrol and whether that conduct was covered under the

broad immunity provided to peace officers. Further, Loxley was a preCranman decision that was controlled by this Court's previous

"discretionary/ministerial" distinction. As former Justice Murdock has

noted, Cranman shifted the focus of our inquiry somewhat: "In 2000, this

Court [in Cranman] attempted to articulate five defined categories

within which allegedly wrongful conduct must fit to qualify for Stateagent immunity, abandoning the general 'discretionary public function'

standard against which State-employee conduct had been measured up

until that time." Ex parte Terry, 239 So. 3d 1125, 1137 (Ala. 2017)

(Murdock, J., concurring in the result).

Under the framework established by Cranman, a court simply

examines the relevant conduct to determine whether it falls under a

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category of immunity. Sometimes that conduct may involve high-level

and "difficult decisionmaking," such as "formulating plans, policies, or

designs" under the first Cranman category. However, at other times

immunity is provided for conduct that may actually appear to be

ministerial, such as the third Cranman category, which provides

immunity for "discharging duties imposed on a department or agency by

statute, rule, or regulation, insofar as the statute, rule, or regulation

prescribes the manner for performing the duties and the State agent

performs the duties in that manner." 792 So. 2d at 405. Here, the issue

is merely whether Officer Coleman's conduct is covered by the fourth

Cranman category, as modified to incorporate § 6-5-338(a). That is, the

issue is whether Officer Coleman's "conduct [was] in performance of any

discretionary function within the line and scope of his ... law enforcement

duties." § 6-5-338(a). As discussed above, we conclude that the act of

patrolling inherently involves discretion and is covered under the broad

protection provided by the fourth Cranman category. Unlike Officer

Coleman, the town employee in Loxley was not a police officer patrolling,

an act that involves unique, job-specific judgment and discretion in which

ordinary drivers are not engaged.

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Angel also relies on Horton v. Briley, 792 So. 2d 432 (Ala. Civ. App.

2001), but Horton is distinguishable also. In Horton, the plaintiff sued a

school-bus driver who was involved in an automobile accident. The Court

of Civil Appeals succinctly determined that the school-bus driver's duties

were not covered by any of the categories of immunity described in

Cranman. Like Loxley, Horton did not concern a police officer on patrol

and, thus, is different from the current case.

III.

A.

Thus, Officer Coleman and the city met their burden of establishing

that Officer Coleman's conduct is covered by a Cranman category of

immunity, in this case the fourth category. The burden then shifted to

Angel to show that an exception to State-agent immunity applies.

Kennedy, 992 So. 2d at 1282. Angel argues, as he did before the circuit

court, that he presented substantial evidence indicating that the second

exception under Cranman applies, specifically that part of the exception

denying immunity to a State agent who acts beyond his or her authority.

Angel argues that he demonstrated that Officer Coleman acted beyond

his authority because, Angel says, he presented substantial evidence

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indicating (1) that Officer Coleman violated the police department's rules

and regulations regarding the personal use of cell phones when the

accident occurred and (2) that Officer Coleman was speeding when the

accident occurred. We will address these two arguments in turn.

B.

Angel argues that he presented substantial evidence demonstrating

that Officer Coleman exceeded his authority by violating the police

department's rules and regulations regarding the personal use of cell

phones when the accident occurred. "One of the ways in which a plaintiff

can show that a State agent acted beyond his or her authority is by

proffering evidence that the State agent failed ' "to discharge duties

pursuant to detailed rules or regulations, such as those stated on a

checklist." ' " Kennedy, 992 So. 2d at 1282-83 (quoting Giambrone v.

Douglas, 874 So. 2d 1046, 1052 (Ala. 2003), quoting in turn Ex parte

Butts, 775 So. 2d 173, 178 (Ala. 2000)). The facts regarding this issue

appear to be undisputed; thus, the issue is whether those undisputed

facts demonstrate that Officer Coleman actually violated the rules and

regulations. The circuit court agreed with Angel's argument below,

concluding that he had demonstrated that Officer Coleman had acted

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beyond his authority by "fail[ing] to follow mandatory rules and

procedures by using his personal phone to play and listen to a YouTube

video" when the accident occurred. Therefore, the circuit court concluded

that the second Cranman exception to immunity applies and, thus, that

Officer Coleman is not entitled to State-agent immunity. See Cranman,

792 So. 2d at 405 (stating that a defendant is not immune if he or she

acts "willfully, maliciously, fraudulently, in bad faith, beyond his or her

authority, or under a mistaken interpretation of the law").

In his deposition, Officer Coleman testified that, while on patrol on

the night of the accident, he was listening to a YouTube podcast on his

cell phone. When the podcast was playing on the cell phone, the cell

phone was resting on Officer Coleman's bag on the passenger seat.

Officer Coleman testified that he had started playing the podcast earlier

when he was still at the police station. Regarding personal cell-phone

use, the police department's rules and regulations prohibit an officer from

"read[ing] emails, surf[ing] the internet, play[ing] games, [using an] Ipod, post[ing] and/or read[ing] social media sites while operating a city

owned vehicle." The rules and regulations also allow an officer to use a

personal cell phone if done "in a reasonable, safe, and sensible manner."

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We conclude that Officer Coleman did not violate the police department's

rules and regulations by listening to the podcast while on patrol and,

thus, did not exceed his authority. The rules and regulations provide a

detailed checklist of prohibited actions regarding personal cell-phone use,

but those rules and regulations do not prohibit the precise conduct here.

Further, simply listening to a podcast on a phone is a passive activity

that is distinct from the more active conduct prohibited. Listening to the

podcast in this manner is tantamount to simply listening to a car radio,

which is not prohibited. Angel failed to meet his burden of showing that

Officer Coleman exceeded his authority by listening to the podcast on his

cell phone.

C.

1.

Before the circuit court, Angel also asserted that Officer Coleman

had acted beyond his authority because, Angel said, Officer Coleman was

speeding when the accident occurred. The circuit court rejected this

argument by concluding that there is no substantial evidence indicating

that Officer Coleman was speeding. Angel presents to this Court the

same argument on this issue that he made to the circuit court. Although

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the circuit court rejected Angel's argument, we may consider it as a

possible ground for denying the mandamus petition. Subject to

exceptions that are inapplicable here, when considering whether to

affirm a judgment or to deny mandamus relief, we may affirm or deny

mandamus relief on any "valid legal ground presented by the record,

regardless of whether that ground was considered, or even if it was

rejected, by the trial court." Liberty Nat'l Life Ins. Co. v. University of

Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003).3

See, e.g., Ex parte Moulton, 116 So. 3d 1119, 1133-34 (Ala. 2013)

3Liberty National states the exceptions to this general rule:

"This rule fails in application only where due-process

constraints require some notice at the trial level, which was

omitted, of the basis that would otherwise support an

affirmance, such as when a totally omitted affirmative

defense might, if available for consideration, suffice to affirm

a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So. 2d

458 (Ala. 2002), or where a summary-judgment movant has

not asserted before the trial court a failure of the nonmovant's

evidence on an element of a claim or defense and therefore has

not shifted the burden of producing substantial evidence in

support of that element, Rector v. Better Houses, Inc., 820 So.

2d 75, 80 (Ala. 2001) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), and

Kennedy v. Western Sizzlin Corp., 857 So. 2d 71 (Ala. 2003))."

881 So. 2d at 1020.

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(applying the principle stated in Liberty National in the context of a

mandamus petition). Thus, we will consider Angel's argument on this

issue as a possible ground for denying the petition and allowing the

circuit court's denial of the summary-judgment motions to stand.

Citing conflicting evidence regarding whether Officer Coleman was

speeding, Angel argues that Officer Coleman is not entitled to a summary

judgment on State-agent immunity grounds because, he says, there is a

genuine issue of material fact regarding whether Officer Coleman

exceeded his authority by speeding when the accident occurred. Angel's

argument presents two considerations: (1) whether there is substantial

evidence indicating that Officer Coleman could in fact have been

speeding when the accident occurred and (2) if such substantial evidence

exists, is the question whether he was speeding a material issue that

must be decided by a jury?

2.

We first address whether there is substantial evidence indicating

that Officer Coleman could have been speeding at that time of the

accident. Angel argues that he presented substantial evidence indicating

that Officer Coleman was exceeding the 35-miles-per-hour speed limit

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when the accident occurred. Specifically, Angel cites the deposition

testimony of Officer Omar El-Husari, an officer with the police

department who investigated the crash. Officer El-Husari testified that

Officer Coleman told him that he was traveling "about 45 -- or 40 to 45

[miles per hour], not faster." Angel also relies on the body-camera footage

of an "Officer Tolliver," a police-department officer who responded to the

accident. When Officer Tolliver asked Officer Coleman how fast he was

driving, Officer Coleman at first said that he did not know, but he then

stated that he thought he "was doing maybe 40 [miles per hour]." On the

other hand, Officer Coleman and the city note that Angel's accidentreconstruction expert, Kelly Kennett, testified that, in reconstructing the

accident, he "[did not] have any evidence that [Officer Coleman] was

speeding" and that "the evidence does not support [a finding of] excessive

speed." However, later in his deposition, Kennett testified that the

calculations that he used in reconstructing the accident revealed "an

average indicated speed of thirty-five and then a range from thirty to

forty-one," indicating the possibility that Officer Coleman could have

been speeding. In his deposition, Officer Coleman at first testified that

he did not know how fast he was going as he approached the scene of the

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accident. When asked in a follow-up question if he could "bookend" how

fast he was going, Officer Coleman testified that he was traveling

"somewhere around 35 [miles per hour]."

Conflicting evidence exists regarding whether Officer Coleman was

speeding when the accident occurred. Officer El-Husari's testimony and

Officer Coleman's statement recorded on the body-camera footage

constitute substantial evidence indicating that Officer Coleman could

have been speeding. Further, Kennett's testimony providing a range of

speeds at which Officer Coleman may have been traveling indicates that

he could have been speeding. This evidence is "of such weight and quality

that fair-minded persons in the exercise of impartial judgment can

reasonably infer" that Officer Coleman was speeding when the accident

occurred; thus, this evidence constitutes substantial evidence that would

support a finding of speeding. West v. Founders Life Assurance Co. of

Florida, 547 So. 2d 870, 871 (Ala. 1989). Accordingly, the circuit court

incorrectly concluded that there is no substantial evidence that would

support a finding of speeding.

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3.

We next address whether the existence of substantial evidence

indicating that Officer Coleman may have been speeding when the

accident occurred creates a material factual issue that must be resolved

by the trier of fact. Put another way, even if a jury were to find that

Officer Coleman was speeding, we must consider whether that finding

would deprive Officer Coleman of State-agent immunity. Angel argues

that, if a jury were to find that Officer Coleman was speeding, he

exceeded his authority by speeding and, thus, would not be entitled to

State-agent immunity. As noted, even if a State agent's conduct falls

within a Cranman immunity category, an exception to State-agent

immunity exists for conduct committed beyond a State agent's authority.

Cranman, 792 So. 2d at 405. In evaluating whether a State agent acted

beyond his or her authority, "there must be a fact-intensive inquiry into

whether a relevant guideline leaves room for the exercise of any

discretion or professional judgment by the [State agent] in relation to the

particular circumstances with which the [State agent] may be

presented." Ex parte Ingram, 229 So. 3d 220, 229 (Ala. 2017) (plurality

opinion). Under the particular facts here, we conclude that, even if a jury

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were to find that Officer Coleman was speeding, the acting-beyondauthority exception would not apply. We have already concluded that

the act of patrolling cloaked Officer Coleman in State-agent immunity.

At most, Officer Coleman was driving slightly above the speed limit late

at night while on patrol; we decline to conclude that a finding of speeding

under the specific circumstances here would strip him of State-agent

immunity.

Tellingly, Angel's own accident-reconstruction expert, Kennett,

testified that the accident most likely occurred because Officer Coleman

was distracted, not because of the speed he was driving. As noted,

Kennett testified that the "evidence does not support [a finding of]

excessive speed on the part of Officer Coleman." When Kennett was

asked whether he "believe[s] this accident occurred because [Officer

Coleman] was distracted while driving," Kennett agreed and explained

that his conclusion was based on the time and distance that Officer

Coleman had to react given the speed he was traveling. Kennett stated

that, given "all of the evidence and even [Officer] Coleman's own

testimony … that he [did not] see [Ricardo] until the impact [had]

occurred … plus the modest or, you know, appropriate speed for the road,

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that's kind of how you get to the only leftover possibility, [which] is some

form of distraction." He testified that "the most likely probability is one

of distraction." Even if a jury were to decide that Officer Coleman was

driving slightly above the speed limit, that would not be a material issue

sufficient to deprive Officer Coleman of immunity given the

circumstances here, including testimony from Angel's own expert about

the relevance of Officer Coleman's speed in this case.

Our conclusion is further supported by this Court's decision in Ex

parte City of Montgomery, 272 So. 3d 155 (Ala. 2018). In Montgomery,

a police officer was involved in an automobile accident while responding

to an emergency dispatch. After activating her emergency lights and

sirens, the officer attempted to cross a large intersection against a red

light. Before she entered the intersection, the vehicles traveling in the

two lanes closest to the officer stopped to allow her to cross. Although

the officer's view of the third lane was blocked by the vehicles stopped in

the first two lanes, she proceeded through the intersection, and she

collided with a vehicle traveling in the third lane.

After concluding that the police officer had satisfied the

requirements of § 32-5A-7, Ala. Code 1975, concerning the use of an

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emergency vehicle, the Court in Montgomery addressed the plaintiff's

argument that an exception to State-agent immunity applied because,

the plaintiff said, the officer had exceeded her authority.4 Specifically,

the plaintiff argued that the officer had exceeded her authority by

violating her "police training." 272 So. 3d at 168. The Court noted that

the officer had "admitted that she had violated her police training by

entering the third lane of the intersection without knowing that the

traffic in that lane had stopped." 272 So. 3d at 167. The Court also

observed that the officer had admitted that the City of Montgomery had

concluded that she was "at fault" for the collision. Regardless of those

admissions, this Court concluded that the officer

"was engaged in a discretionary act (proceeding through an

intersection while responding to an emergency dispatch) that

is regularly performed by police officers who are carrying out

their law-enforcement duties. Even assuming [the officer]

violated her police training while exercising her discretion,

she did not act beyond her authority in attempting to slowly

proceed through an intersection, with the emergency lights

and siren activated on her patrol car, in response to an

emergency dispatch."

4Section 32-5A-7(a) provides that "[t]he driver of an authorized

emergency vehicle, when responding to an emergency call or when in the

pursuit of an actual or suspected violator of the law or when responding

to but not upon returning from a fire alarm, may exercise the privileges"

established in that section "subject to the conditions" stated in that

section.

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272 So. 3d at 167-68.

In Montgomery, the conduct that was allegedly done beyond the

officer's authority directly resulted in the accident. Although the officer

admitted that she had been found at fault for the collision and that she

had violated her police training in taking the action that caused the

accident, she did not exceed her authority under the second Cranman

exception. In this case, Angel argues that, if a jury were to find that

Officer Coleman was speeding, he exceeded his authority and, thus, does

not have State-agent immunity. However, Angel's own expert testified

that the accident most likely occurred because Officer Coleman was

distracted, not due to the speed he was driving. That is, the conduct at

issue here is much more tangential to the accident than the conduct in

Montgomery was to the accident in that case. Given that the officer in

Montgomery was entitled to State-agent immunity, Officer Coleman

should be as well. Under the specific facts of this case, even if Officer

Coleman was slightly speeding while on patrol late at night, that would

not deprive him of State-agent immunity.

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Conclusion

We conclude that the act of police patrolling is a discretionary

function and is thus covered under the fourth Cranman category of Stateagent immunity, which incorporates § 6-5-338(a). Because Officer

Coleman was patrolling at the time of the accident underlying this action,

his conduct is covered under the fourth Cranman category. The circuit

court erred by concluding that Officer Coleman acted beyond his

authority and thus that the second exception to immunity under

Cranman applies. Regarding that exception, the circuit court erred by

concluding that Officer Coleman violated the police department's rules

and regulations; Officer Coleman was not acting beyond his authority in

the personal use of his cell phone on the night of the accident.

Substantial evidence exists that would support a finding by a jury that

Coleman was speeding when the accident occurred; however, even if he

was speeding, the beyond-authority exception would not apply under the

specific facts of this case. Officer Coleman is entitled to a summary

judgment on the ground of State-agent immunity. Because Officer

Coleman is immune, the city is also immune and entitled to a summary

judgment in its favor as well. See City of Bayou La Batre v. Robinson,

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785 So. 2d 1128, 1131 (Ala. 2000) ("[U]nder principles of vicarious

liability, where a municipal employee enjoys immunity, the municipality

likewise is immune as to claims based on the employee's conduct.");

Hollis, 950 So. 2d at 306 ("[I]f Officer Davis is immune, then so is the

City, which employed him.").

PETITION GRANTED; WRIT ISSUED.

McCool, J., concurs.

Cook, J., concurs in part and concurs in the result, with opinion,

which Wise and Parker, JJ., join.

Shaw and Sellers, JJ., concur in the result.

Mendheim, J., dissents, with opinion, which Stewart, C.J., joins.

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COOK, Justice (concurring in part and concurring in the result).

I concur with the main opinion's analysis and conclusion in Part II

of the "Discussion" section that Officer Coleman and the city met their

burden of establishing that Officer Coleman's conduct is covered by the

fourth category of immunity provided in Ex parte Cranman, 792 So. 2d

392 (Ala. 2000), as modified by this Court in Hollis v. City of Brighton,

950 So. 2d 300 (Ala. 2006). As explained in the main opinion, because

Officer Coleman and the city met their burden, the burden then shifted

to Angel to show that an exception to State-agent immunity applies.

I. Whether Angel Met His Burden of Showing that An Exception to

Immunity Applied

Angel argues that he presented substantial evidence indicating

that the second exception under Cranman -- denying immunity to a State

agent who acts beyond his or her authority -- applies here. I concur with

the main opinion's analysis and conclusion in Part III.B. that Angel failed

to meet his burden of showing that Officer Coleman exceeded his

authority by listening to the podcast on his cell phone. However, I

disagree with the main opinion's reasoning underlying its conclusion in

Part III.C. that there is a genuine issue of fact as to whether Officer

Coleman was speeding when the accident occurred. As I explain below,

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because Angel's own expert agrees that Officer Coleman was not

speeding, the main opinion need not go any further. Moreover, I fear that

the additional analysis in the main opinion on this issue may cause

confusion, and it is for this reason that I concur in the result.

A. Angel's Expert Agrees There Was No Evidence of Speeding

As noted in the main opinion, Angel's own expert provided no

evidence that Officer Coleman was speeding at all, much less whether his

speed was the cause of the accident. Specifically, Angel's expert, Kelly

Kennett, testified that the "evidence does not support [a finding of]

excessive speed on the part of Officer Coleman." (Emphasis added.) He

further testified that, in reconstructing the accident, he "[did not] have

any evidence that [Officer Coleman] was speeding." (Emphasis added.)

In their petition for a writ mandamus, Officer Coleman and the city

specifically argue that this testimony by Kennett "forecloses" any

argument by Angel that any alleged speeding by Officer Coleman

provides an exception to immunity in this case. See Petition at 26 ("The

testimony of the estate's own accident reconstructionist forecloses such

an argument. (Att. C-7 at 33:21 to 34:4).").

Moreover, in its summary-judgment order, the trial court agreed

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with Officer Coleman and the city when it expressly stated that it found

Angel's argument regarding speeding unpersuasive in light of Kennett's

testimony. Specifically, the trial court wrote:

"Given the testimony from [Angel's] own accident

reconstructionist, this Court finds [Angel's] allegation that

Officer Coleman was speeding, as wholly unpersuasive.

[Officer Coleman and the city] have therefore made a prima

facie showing that Officer Coleman was not speeding, and

[Angel] has not offered substantial evidence that Officer

Coleman was speeding."

(Emphasis added.)

Despite this specific argument by Officer Coleman and the city

regarding Kennett's concession and despite the trial court's conclusion on

this same issue, Angel provides no response to Kennett's admissions in

his answer to the petition for a writ of mandamus.

Given the admissions by Angel's expert and the trial court's own

determination that Angel's position was "unpersuasive" in light of that

testimony, I do not agree with the main opinion that there is "substantial

evidence that would support a finding of speeding" and that the trial

court, therefore, "incorrectly concluded that there is no substantial

evidence that would support a finding of speeding." ____ So. 3d at ___.

B. There is No Need To Compare This Case to Ex parte City

of Montgomery, 272 So. 3d 155 (Ala. 2018), and the

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Comparison May Cause Confusion

After reaching this conclusion, the main opinion then goes a step

further to address "whether the existence of substantial evidence

indicating that Officer Coleman may have been speeding when the

accident occurred creates a material factual issue that must be resolved

by the trier of fact." ____ So. 3d at ____. The main opinion says: "[E]ven

if a jury were to find that Officer Coleman was speeding, we must

consider whether that finding would deprive Officer Coleman of Stateagent immunity." ____ So. 3d at ____.

The main opinion ultimately rules for Officer Coleman on this issue.

It states: "Under the particular facts here, we conclude that, even if a jury

were to find that Officer Coleman was speeding, the acting-beyondauthority exception would not apply." ____ So. 3d at ____. It further states

that, "[a]t most, Officer Coleman was driving slightly above the speed

limit late at night while on patrol; we decline to conclude that a finding

of speeding under the specific circumstances here would strip him of

State-agent immunity." ____ So. 3d at ____ (emphasis added).

The main opinion appears to bolster this conclusion about driving

"slightly above the speed limit" by comparing this case to our Court's

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prior decision in Ex parte City of Montgomery, supra, stating:

"In Montgomery, the conduct that was allegedly done

beyond the officer's authority directly resulted in the accident.

Although the officer admitted that she had been found at fault

for the collision and that she had violated her police training

in taking the action that caused the accident, she did not

exceed her authority under the second Cranman exception. In

this case, Angel argues that, if a jury were to find that Officer

Coleman was speeding, he exceeded his authority and, thus,

does not have State-agent immunity. However, Angel's own

expert testified that the accident most likely occurred because

Officer Coleman was distracted, not due to the speed he was

driving. That is, the conduct at issue here is much more

tangential to the accident than the conduct in Montgomery

was to the accident in that case. Given that the officer in

Montgomery was entitled to State-agent immunity, Officer

Coleman should be as well. Under the specific facts of this

case, even if Officer Coleman was slightly speeding while on

patrol late at night, that would not deprive him of State-agent

immunity.

____ So. 3d at ____ (emphasis added).

The purpose for which the main opinion is comparing this case to

our decision in Montgomery is unclear to me. If, on the one hand, the

main opinion is relying on Montgomery to say that "slightly" violating

the speed limit should not fit within existing exceptions to State-agent

immunity, I believe this conclusion is likely mistaken, is not supported

by Montgomery, and, in any event, is not necessary to grant Officer

Coleman and the city mandamus relief here.

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In Montgomery, our Court, in examining whether the "beyond the

authority" exception to State-agent immunity applied, noted that the

officer in that case had admitted in her deposition that (1) the city had

concluded that she was "at fault" for the collision underlying the

plaintiff's lawsuit, (2) that she had violated her police training by

entering the third lane of the intersection without knowing that the

traffic in that lane had stopped, and (3) that five seconds was not a

reasonable amount of time in which to clear the intersection.

Nevertheless, because the officer was engaged in a discretionary act --proceeding through an intersection while responding to an emergency

dispatch -- that is regularly performed by police officers who are carrying

out their law-enforcement duties, our Court held that she was still

entitled to State-agent immunity. 272 So. 3d at 167-68. Specifically, we

held that, "[e]ven assuming [the officer] violated her police training while

exercising her discretion, she did not act beyond her authority in

attempting to slowly proceed through an intersection, with the

emergency lights and siren activated on her patrol car, in response to an

emergency dispatch." Id. at 168.

It is my understanding that our holding as to State-agent immunity

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in Montgomery rested on the conclusion that the officer was exercising

her discretion when she slowly entered the third lane of the intersection

at issue with her emergency lights and siren activated on her patrol car

in response to an emergency dispatch.

Here, however, we must look to a more concrete set of rules -- the

Rules of the Road -- which, among other things, govern speeding. Such

rules leave little room for discretion on the part of a police officer, and,

therefore, a violation of such rules is more likely to trigger the application

of an exception to State-agent immunity.5 In my view, because of this

difference, drawing such parallels between Montgomery and this case

runs the risk of creating confusion.

On the other hand, if the main opinion is merely relying on

Montgomery to hold that there must be evidence of causation between

the violation of a law -- here, speeding -- and the accident to overcome

5To avoid any confusion, I note that law-enforcement officers have

express permission in some circumstances to violate speed limits. See,

e.g., § 32-5A-7, Ala. Code 1975. There is no argument in this case that

Officer Coleman had such authority to exceed the speed limit in this

situation.

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immunity, then I agree with that conclusion.6 A violation of the law (or

a department policy) that is not causally related to the accident cannot

be used as a basis for an exception to State-agent immunity. Without

reaching the ultimate issue, I observe that, based upon Kennett's

testimony, there is reason to believe that summary judgment would be

due on this basis also.

II. Conclusion

In sum, I concur with the main opinion's conclusions (1) that Officer

Coleman and the city met their burden of establishing that Officer

Coleman's conduct is covered by the fourth category of State-agent

immunity and (2) that Angel failed to meet his burden of showing that

the second exception to State-agent immunity applied in this case. In my

view, we need go no further to grant mandamus relief to Officer Coleman

and the city in this case.

However, the main opinion does go a step further in Part III.C. to

6For instance, I note that the main opinion includes a sentence that

could be read as discussing causation. It states: "That is, the conduct at

issue here is much more tangential to the accident than the conduct in

Montgomery was to the accident in that case." ____ So. 3d at ____

(emphasis added). While this is certainly correct, I am not sure that

Montgomery is a causation decision.

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address whether the existence of substantial evidence indicating that

Officer Coleman may have been speeding when the accident occurred

creates a material factual issue that must be resolved by the trier of fact

and, for reasons that are unclear to me, uses our Court's prior decision in

Montgomery as a basis for doing so. Because I do not believe that this

was necessary, I must concur in the result.

Wise and Parker, JJ., concur.

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MENDHEIM, Justice (dissenting).

Based on Officer Alonzo Cornelius Coleman IV's body-cam footage

immediately following the incident involving Ricardo Morales Cuin, and

on the other materials before us, a question of fact exists regarding

whether a driver satisfying the normal standard of care would have hit,

rather than avoided hitting, Cuin, who was apparently walking across

the road from an adjacent lane. Officer Coleman and the City of

Birmingham argue in their petition that that question of fact, and other

questions of fact, need not be answered at trial because Officer Coleman

"was unquestionably on patrol at the time of the accident and was within

his assigned beat when Mr. Cuin walked into his lane of travel while

intoxicated and clad in dark clothing from head to toe." Petition at 7.

According to Officer Coleman and the City, he was "on patrol," "not

speeding, … not physically using either of his mobile phones, and

ha[ving] his eyes on the road" while listening to a podcast and driving in

the rain at night.7 Id. Thus, they contend, immunity allowed him to

7Officer Coleman also stated in his deposition that he had a bag of

chips on his book bag or in the cup holder and that he was eating the

chips. Officer Coleman asserted that it was "raining heavily," and his

answers to interrogatories described it as a "torrential downpour,"

though his body-cam footage immediately following the incident does not

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potentially negligently cause the death of Cuin, without liability in his

individual capacity.8 I disagree. And the fact that being on patrol -- a

duty in the line and scope of Officer Coleman's employment that includes

several functions that may involve the exercise of discretion -- might

include Officer Coleman's " 'familiariz[ing] himself with the everyday

routine of people' in the East Precinct, in inspecting his beat 'for

conditions requiring police attention,' in '[g]iv[ing] attention to crime

hazards,' and in 'render[ing] all necessary police service in his assigned

indicate a visually obstructive rain and the windshield-wiper speed on

his vehicle was intermittent. Officer Coleman also asserted that the

scene was " 'pretty dark' … other than a flashing yellow traffic signal at

the intersection"; the body-cam footage reflects that there also were

streetlights nearby, though not illuminating the actual scene of the

incident. Officer Coleman asserted "that his eyes were on the road when

the [incident] occurred," and he described Cuin as walking into his lane

"from left to right," stating that he was "not visible until" the patrol car struck him. But how would Officer Coleman know Cuin was walking, not

running or stumbling, into his lane if Cuin was not visible until he was

struck while Officer Coleman's eyes were on the road? And Officer

Coleman testified in his deposition that he first saw Cuin "when [Officer

Coleman] got out of the vehicle" and that he knew he hit something but

did not see Cuin at all before he realized he had hit something, at which

point Cuin's body came onto the hood and rolled off to the side.

8As the main opinion notes, there is an issue of fact regarding

whether Officer Coleman was speeding, and that issue takes on

additional import given that it was raining, it was night, Officer Coleman

had trouble seeing a figure such as Cuin who might step into the

roadway, and he had chosen to listen to a podcast.

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area …., ' " id. at 20, is of no help to Officer Coleman because he does not

assert that he was engaged in any of those functions while on patrol duty.

Officer Coleman was simply listening to a podcast, eating chips, while

driving at night in his assigned area with his eyes on the road. By his

own admission, Officer Coleman was looking straight ahead while

driving and had been doing so for 5 to 10 seconds before the incident. He

did not present evidence indicating that he was, for example, "giving

attention to crime hazards" while driving, which may involve the exercise

of discretion to elevate a function associated with patrol duty over the

duty to drive in a manner applicable to all drivers. And while Officer

Coleman undoubtedly had discretion in driving as all drivers do, the

question is whether simply having discretion in driving authorizes a

violation of the standard of care applicable to drivers, regardless of

circumstance. The answer is no. See Ex parte Cranman, 792 So. 2d 392,

404 (Ala. 2000).

Based on the rationale of Ex parte Cranman, 792 So. 2d at 404-405,

as modified by Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006),

I do not agree that, because he was driving on patrol, Officer Coleman

was any more empowered to violate the standard of care applicable to all

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drivers than he might have been if he had been conducting an

investigation or returning to the precinct to clock out. See Walters v.

De'Andrea, 312 So. 3d 430, 435-37 (Ala. 2020). Officer Coleman has not

established that he was confronted with the necessity of making a

decision between fulfilling a function of his patrol duty -- such as

" '[g]iv[ing] attention to crime hazards' " by further observing suspicious

activity on a street corner he was about to pass -- or abiding by the

standard of care applicable to all drivers. If he was, he may be entitled

to immunity for engaging in conduct that might otherwise constitute

negligent conduct; an officer has the discretion to prioritize certain duties

over his or her driving duties in appropriate circumstances. But, as this

Court has determined, immunity is not a blanket authorization for

negligent driving when the need for making such a discretionary decision

is not involved.

In Walters, Officer Jessica De'Andrea attempted to qualify for

immunity using the third category described in Cranman, " 'discharging

duties imposed on a department or agency by statute, rule, or regulation,

insofar as the statute, rule, or regulation prescribes the manner for

performing the duties and the State agent performs the duties in that

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manner.' " 312 So. 3d at 434 (quoting Cranman, 792 So. 2d at 405).

De'Andrea argued that " '[o]ne of the daily duties of the patrol officers was

to report to their precinct at the end of their shift to turn in daily activity

logs.' " Id. (quoting De'Andrea's brief). The Court rejected that argument

because the policy at issue did not " 'prescribe[] the manner for

performing [that] dut[y]' other than that it had to be done at the end of a

shift. Cranman, 792 So. 2d at 405. The policy in question had nothing

to do with how De'Andrea drove her police vehicle on public roadways."

312 So. 3d at 435.

De'Andrea likewise made an argument using the fourth Cranman

category, " 'exercising judgment in the enforcement of the criminal laws

of the State, including, but not limited to, … [… serving as peace officers

under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975].' " 312 So. 3d at 434 (quoting Cranman, 792 So.

2d at 405, as modified by Hollis, 950 So. 2d at 309). De'Andrea quoted to

the Court a lengthy list of "patrol duties" from "The Standard Operating

Procedure for the Montgomery Police Department Patrol Division." See

Walters, 312 So. 3d at 434-35. But the Court dispatched that argument

with the observation that De'Andrea had been unable to "point to a single

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patrol duty she was actually performing at the time the accident

occurred. In fact, De'Andrea admitted in her own testimony that she ...

was ... not performing any patrol duties." Id. at 435.

The main opinion attempts to distinguish Walters, essentially

indicating that the Walters Court implicitly was stating that if

De'Andrea had not been ending her shift, but had been "on patrol," and

had caused the accident, she would have been immune under the fourth

Cranman category. But the Walters opinion neither said nor implied any

such thing. In fact, the opinion repeatedly emphasized that the duty at

issue was "how De'Andrea drove her police vehicle on public roadways."

Id. at 435. Near the conclusion of the opinion, the Court said it this way:

"The duty at issue here -- 'the conduct made the basis of the

claim against [De'Andrea]' -- was nothing more or less than

the duty of due care that every driver on the roadway owes to

other motorists. Cranman, 792 So. 2d at 405. Under [Ex parte]

Venter[, 251 So. 3d 778 (Ala. 2017),] and other authorities,

such an action is not clothed with State-agent immunity."

Walters, 312 So. 3d at 437 (emphasis added).9

9I question whether a police department or a municipality may,

absent authorization by the legislature, institute a policy that a police

officer may deviate from the normally applicable standard of care for

drivers regardless of whether the circumstances under which the officer

must make a decision present a duty-related reason that might justify

such deviation. The main opinion would apparently conclude that if the

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This Court has already decided in Walters that a municipal police

officer must act in accord with the standard of care applicable to all

drivers absent a duty-related function that requires him or her to exercise

discretion to deviate from that standard of care in order to fulfill such

function. The legislature has even acknowledged such limits when

addressing another area involving the fulfillment of a law-enforcement

officer's duty, see Ala. Code 1975, § 32-5A-7 (providing conditional

privileges for "[t]he driver of an authorized emergency vehicle, when

responding to an emergency call or when in the pursuit of an actual or

suspected violator of the law or when responding to but not upon

returning from a fire alarm," § 32-5A-7(a)). And the rationale of the main

opinion presents an odd contrast to that section.

Section 32-5A-7 mandates the use of audio and visual signals that

would warn the public that the officer is responding to an emergency call

or in pursuit of a suspected violator and may violate certain otherwise

applicable laws related to the standard of care for driving. See § 32-5AMontgomery Police Department had said a patrol officer is "on patrol"

until he or she clocks out, it would have made a difference in Walters.

But that is inconsistent with the rationale in that case, which the main

opinion is essentially overruling under the guise of distinguishing.

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7(c). Under the rationale of the main opinion, however, the public must

be on alert at all times that any officer on patrol may negligently violate

such laws at any time, without providing any notice and without any

apparent need to do so. And, more importantly, even the high-stress

circumstances described in § 32-5A-7 have limits. When an officer

responding to an emergency call or in pursuit of a suspected violator of

the law is using required audible and visual signals, the officer

"(b) … may

"…

"(2) Proceed past a red or stop signal or stop

sign, but only after slowing down as may be

necessary for safe operation;

"(3) Exceed the maximum speed limits so

long as he does not endanger life or property[.]

"….

(d) The foregoing provisions shall not relieve the driver

of an authorized emergency vehicle from the duty to drive

with due regard for the safety of all persons, nor shall such

provisions protect the driver from the consequences of his

reckless disregard for the safety of others."

Thus, the legislature provided no carte blanche for negligent driving,

even under the circumstances described in § 32-5A-7. Yet, under the

rationale of the main opinion, by simply being on patrol Officer Coleman

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was relieved of the requirement to drive with due regard for the safety of

all persons, a privilege he would not have had had he been pursuing a

suspected violator when he hit Cuin. And, as the materials before us

reflect, even the patrol techniques of the Birmingham Police Department

require that an officer in a marked vehicle and on traffic patrol must

"operate [his or her] patrol vehicle[] in accordance with existing laws and

in such a manner as to demonstrate exemplary driving behavior.

Extreme emergency conditions will be the only exceptions to this

practice."

I respectfully dissent.

Stewart, C.J., concurs.

49