Arethea Hurbert, an incompetent person, by and through her guardian ad litem and next friend, Leslie Barineau v. Stephon Green and The City of Birmingham

Rel: September 5, 2025

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
SPECIAL TERM, 2025

_________________________

SC-2024-0589
_________________________

Arethea Hurbert, an incompetent person, by and through her
guardian ad litem and next friend, Leslie Barineau

v.

Stephon Green and The City of Birmingham

Appeal from Jefferson Circuit Court
(CV-21-902052)

PER CURIAM.

In 2019, Arethea Hurbert was transported to UAB Hospital
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("UAB") for a psychological evaluation after being arrested following

disruptive public behavior. She was accompanied by Birmingham Police

Department patrol officer Stephon Green ("Officer Green"). Once at UAB,

Hurbert was placed on a gurney and each of her limbs were restrained.

At some point, Officer Green was asked to remove one of the

restraints from one of Hurbert's arms so that a UAB staff member could

administer an IV. What happened next is significantly disputed by the

parties. What is not in dispute, however, is that Officer Green punched

Hurbert two or three times in the face and that Hurbert sustained serious

injuries, including a broken orbital socket, as a result of Officer Green's

actions.

Following that incident, an internal investigation was conducted by

the Birmingham Police Department ("the BPD"), which resulted in

Officer Green being fired. 1 Officer Green was later indicted for second-

1We note that Officer Green later sought review of the termination

of his employment before the Jefferson County Personnel Board, which
upheld the termination. Officer Green thereafter sought review of the
termination of his employment through a petition for a writ of certiorari
before a three-judge panel of the Jefferson Circuit Court. The panel
allowed the City of Birmingham to intervene in that proceeding. After
reviewing the record, the panel entered a judgment on September 11,
2024, reversing the termination. The City then sought review of that

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degree assault.

Hurbert sued Officer Green and the City of Birmingham ("the City")

in the Jefferson Circuit Court ("the trial court"), alleging claims of

negligence and wantonness. While Hurbert's civil action against Officer

Green was pending, his criminal case began.

After conducting a pretrial evidentiary hearing pursuant to § 13A-

3-23(d), Ala. Code 1975, in which the "preponderance of the evidence"

standard applied, the trial court in the criminal case ("the criminal

court") ultimately entered a judgment dismissing the second-degree-

assault charge against Officer Green after concluding that he was

entitled to statutory stand-your-ground immunity. Neither Hurbert nor

her lawyer took part in that pretrial evidentiary hearing.

Later, in Hurbert's civil case, the trial court entered a summary

judgment in favor of Officer Green after concluding that the criminal

court's judgment "created" a "presumption" that he had acted in self-

defense when he struck Hurbert. The trial court wrote: "[T]his Court

judgment through a petition for a writ of certiorari to the Court of Civil
Appeals, which affirmed the panel's judgment. The City has now filed a
petition for a writ of certiorari with our Court asking us to review the
Court of Civil Appeals' decision.
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finds and holds that Ms. Hurbert has not met her burden of producing

substantial evidence as to the existence of a genuine issue of material

fact that would call into question the Criminal Court's Order Granting

Immunity." Based upon that ruling, the trial court also entered a

summary judgment in favor of the City.

Hurbert, by and through her guardian ad litem and next friend,

Leslie Barineau, appeals the trial court's summary judgments in favor of

Officer Green and the City. Officer Green has filed no brief with this

Court, and the City makes no argument in support of the summary

judgment for Officer Green in its brief on appeal.

Because we hold that the trial court departed from the summary-

judgment standard, we reverse those judgments. In doing so, we express

no opinion on the merits of whether Officer Green is entitled to stand-

your-ground immunity in this action.

Facts and Procedural History

A. The Underlying Incident

In August 2019, Officer Green was temporarily assigned to work at

the Birmingham jail. At that time, 51-year-old Hurbert was in the

custody of the BPD for loitering and for disruptive public behavior after

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experiencing a schizophrenic episode. While at the jail, Hurbert was

allegedly behaving aggressively and violently toward the staff. Officer

Green was told to transport Hurbert to UAB for a psychological

evaluation.

According to Hurbert, Officer Green placed her in leg irons before

putting her in the police car for transport. Although Hurbert says that

she told Officer Green multiple times that the leg irons were too tight and

her ankles were bleeding, Officer Green allegedly refused to adjust them.

As stated previously, once at UAB, Hurbert was placed on a gurney

and her limbs were placed in restraints. At some point, Officer Green

placed Hurbert's sandals on her chest and removed a restraint from one

of her arms so that a UAB staff member could administer an IV. He then

left the room.

When Officer Green reentered the room, Hurbert again complained

that the shackles were too tight. According to Hurbert, at that point

Officer Green began walking toward her and, because she did not know

why he was approaching her, Hurbert picked up one of her sandals and

acted as if she was going to throw it. Although she says that she did not

throw the shoe, Hurbert alleges that Officer Green took the shoe from her

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and then began hitting her in the face and body.

According to Officer Green, however, as he approached her, Hurbert

struck him with her shoe and then began hitting him with a closed fist.

To subdue her, Officer Green struck Hurbert in the face "two or three"

times.

UAB personnel then intervened and pulled Officer Green away

from Hurbert. As a result of the incident, Hurbert suffered serious

injuries, including a broken orbital socket. Officer Green was

subsequently investigated by the City for his use of force and, at some

point, was fired by the BPD. 2 He was also arrested and charged with

second-degree assault.

B. Hurbert's Lawsuit Against Officer Green and The City

On July 16, 2021, Hurbert sued Officer Green, in his individual

capacity, and the City in the trial court, alleging claims of negligence and

wantonness. She also sought damages.

On August 25, 2021, the City filed its answer to Hurbert's

complaint, in which it denied Hurbert's allegations against it. It also

asserted various affirmative defenses, including immunity pursuant to §

2See footnote 1, supra.

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11-47-190, Ala. Code 1975.3

That same day, Officer Green filed a motion to dismiss, in which he

argued that he was entitled to peace-officer immunity pursuant to § 6-5-

338, Ala. Code 1975, 4 because, he said, "it is undisputed that [he] was

acting within the line and scope of his duties and employment" with the

City when the alleged incident with Hurbert occurred. He also filed a

3That Code section states, in relevant part:

"No city or town shall be liable for damages for injury
done to or wrong suffered by any person or corporation, unless
such injury or wrong was done or suffered through the
neglect, carelessness, or unskillfulness of some agent, officer,
or employee of the municipality engaged in work therefor and
while acting in the line of his or her duty …."

4That Code section states, in relevant part:

"(a) Every peace officer … who is employed or appointed
pursuant to the Constitution or statutes of this state … and
whose duties prescribed by law, or by the lawful terms of their
employment or appointment, include the enforcement of, or
the investigation and reporting of violations of, the criminal
laws of this state, and who is empowered by the laws of this
state to execute warrants, to arrest and to take into custody
persons who violate, or who are lawfully charged by warrant,
indictment, or other lawful process, with violations of, the
criminal laws of this state, 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."
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counterclaim against Hurbert alleging assault and battery. As part of his

counterclaim, Officer Green "demand[ed] judgment against [Hurbert] for

damages in an amount to be determined by a jury, and for such other and

further relief to which [he] may be entitled."

In response, Hurbert argued that Officer Green had failed to meet

his burden that he was entitled to statutory stand-your-ground

immunity. According to Hurbert, in his motion to dismiss, Officer Green

had only made "the broad assertions that [he had been] 'performing a

discretionary function, i.e., effectuating an arrest and transporting a

suspect, during the incident,' " and, she asserted, that this was

insufficient to shift the burden to her to refute his claim of immunity.

Even if Officer Green had met his burden, Hurbert argued, she had

adequately demonstrated that he had acted beyond his authority in the

way he treated her after she was restrained at UAB and that he had

violated her constitutional rights.

Following a hearing, on October 29, 2021, Officer Green's motion to

dismiss was denied. Thereafter, Officer Green filed his answer to

Hurbert's complaint, in which he denied the allegations against him but

did not assert any affirmative defenses.

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C. Civil Proceedings Stayed Pending Outcome of Officer Green's
Criminal Case

Following the completion of some discovery, on January 31, 2022,

Officer Green moved to stay any further discovery in Hurbert's lawsuit

pending the outcome of the criminal proceedings against him in the

criminal court. In support of his motion, Officer Green alleged that any

responses he may be required to give during discovery in Hurbert's civil

case could violate his right against self-incrimination under the Fifth

Amendment to the United States Constitution. That motion was granted.

In his criminal action, Officer Green filed a motion to dismiss the

second-degree-assault charge against him on the basis that he was

entitled to statutory stand-your-ground immunity under § 13A-3-23(d).

According to Officer Green, he was entitled to immunity because he

struck Hurbert in self-defense.

An evidentiary hearing was held on Officer Green's motion, during

which Officer Green testified that he was asked to transport Hurbert to

UAB for a psychological evaluation. While Hurbert was initially calm

after they arrived at UAB, Officer Green said, she suddenly became

aggressive toward him and the nursing staff as they tried to administer

an IV. He said that she then threw her shoe and struck him. As he tried
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to restrain Hurbert, Officer Green said, she slapped him on the side of

his face, which then led him to strike her in the face.

In opposition to Officer Green's motion, the State offered testimony

from a UAB staff member who witnessed the incident between Hurbert

and Officer Green. She testified that she saw Hurbert hit and kick Officer

Green, which then led to his punching her in the face "two or three" times.

After hearing the above testimony, on December 12, 2022, the

criminal court issued a judgment dismissing the criminal case against

Officer Green. That judgment stated:

"The statute and the case law appears very clear in this
matter; therefore, this Court finds that under Alabama law, a
person has the right to use reasonable force to protect or
defend themselves from unlawful physical force, or what they
reasonably believe to be the imminent use of unlawful
physical force by another person. In the instant matter, this
court finds that [Officer Green] had already been subjected to
unlawful physical force by [Hurbert] when she kicked him, hit
him with a shoe, and then punched him in the face. Further,
it does not seem unreasonable that [Officer Green] could
reasonably believe that if he did not immediately regain
control of [Hurbert], that he was going to be further subjected
to the continued use of imminent unlawful physical force. This
Court finds nowhere in Alabama law that a person looses [sic]
their ability to reasonably defend, [or] protect themselves[,]
from someone's use of unlawful physical force simply because
of their employment status with any particular entity. Thus,
the fact that [Officer Green] was employed as a Birmingham
Police Officer did not strip him of his statutory rights to
defend himself.
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"Additionally, this Court not only believes that [Officer Green]
was justified to use reasonable physical force to defend
himself, this Court also believes that as an officer sworn to
protect the community, it was this officer's duty to
immediately regain control of a prisoner/inmate, situated in
the middle of a public medical facility, who was suspected of
having a mental illness, and perhaps undergoing a psychotic
incident.

"Based on the facts presented at the hearing, this Court finds
by a preponderance of the evidence that [Officer Green's]
actions were reasonable and justified under the
circumstances, and that he acted in self-defense.

"[Officer Green's] Motion to Dismiss is hereby GRANTED.

"The Case is hereby DISMISSED."

(Capitalization in original.)

D. Civil Proceedings Recommence

After the criminal case against Officer Green was dismissed, the

proceedings in Hurbert's civil action recommenced.

On April 24, 2023, Officer Green filed a "Renewed Motion to

Dismiss as a Matter of Law," in which he asserted, for the first time, that

he was entitled to statutory stand-your-ground immunity pursuant to §

13A-3-23(d). Because he had been granted immunity on that basis in his

criminal case, Officer Green argued that he was likewise entitled to

statutory stand-your-ground immunity in Hurbert's civil action and,
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thus, that her claims against him were due to be dismissed. In support of

his renewed motion, Officer Green attached only a copy of the criminal

court's judgment.

At the request of the trial court, on May 16, 2023, Hurbert filed an

initial and limited response to Officer Green's motion to address the issue

of whether the criminal court's judgment entitled him to that same

statutory stand-your-ground immunity in her civil action. In that limited

response, Hurbert argued that the criminal court's judgment did not, by

itself, dispose of her civil claims because, she said, Officer Green had

failed to establish that either the doctrine of res judicata or the doctrine

of collateral estoppel applied. She also argued, among other things, that

the plain language of the procedure set forth in subsections (d)(2) and

(d)(4) of § 13A-3-23 "only applies in criminal actions and has no

application to civil actions." Finally, Hurbert argued that "any

construction of Alabama's [self-defense] statute that would allow [the

holding in the criminal court's judgment] to dispose of this civil action

would violate the Alabama Constitution of 1901 …."

On June 28, 2023, the trial court denied Officer Green's motion. In

support of its decision, the trial court acknowledged that "the

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impact/interplay of stand your ground rulings in parallel civil and

criminal legal proceedings has not yet been considered by Alabama's

Appellate Courts," but it noted that the issue had been decided by the

Florida Supreme Court in Kumar v. Patel, 227 So. 2d 557 (Fla. 2017).

According to the trial court, the Florida Supreme Court has held that,

even when a criminal-immunity determination is made before the filing

of a civil suit, " 'that determination cannot bind a potential civil plaintiff

who is not a party to the criminal proceeding … because the law does not

generally sanction binding a person to judicial determinations made in a

proceeding to which he or she was not a party ….' " (quoting Kumar, 227

So. 3d at 560.)

Even after finding the Florida Supreme Court's reasoning to be

persuasive, however, the trial court determined that it would hold an

evidentiary hearing at which Hurbert could present evidence to "rebut

the presumption of immunity created by the [criminal court's] ruling."

(Emphasis added.) The trial court then stated that

"it is this court's opinion and ruling that the [criminal court's]
'Order Granting Defendant's Motion for Immunity From
Prosecution' by itself meets [Officer] Green's burden of proof
for receiving civil stand your ground immunity. Thus, if Ms.
Hurbert produces no evidence, or if she produces insufficient
evidence to rebut that presumption this court will grant the
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relief [Officer] Green seeks and dismiss this case."

(Emphasis in original.) The trial court thereafter set the case for a

pretrial evidentiary hearing pursuant to § 13A-3-23(d)(2). 5

E. Conversion of the Pretrial Evidentiary Stand-Your-Ground
Hearing to a Summary-Judgment Hearing

About a month later, Hurbert moved to convert the "pretrial

evidentiary hearing" to a summary-judgment hearing, arguing that

Officer Green's stand-your-ground immunity defense in her civil case

should not be decided by a judge in a bench trial or evidentiary hearing

but, instead, should be decided under the summary-judgment standard

in Rule 56, Ala. R. Civ. P. Hurbert further argued that, because she had

demanded a jury trial on all disputed issues of fact, under Rule 56 the

trial court must deny any attempt by Officer Green to obtain a pretrial

5That Code section states, in relevant part:

"(2) Prior to the commencement of a trial in a case in
which a defense is claimed under this section, the court
having jurisdiction over the case, upon motion of the
defendant, shall conduct a pretrial hearing to determine
whether force, including deadly force, used by the defendant
was justified or whether it was unlawful under this section.
During any pretrial hearing to determine immunity, the
defendant must show by a preponderance of the evidence that
he or she is immune from criminal prosecution."
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judgment on the defense and let the jury decide the defense along with

all other disputed factual issues at trial.

It does not appear from the record that Officer Green or the City

filed a response or opposition to Hurbert's motion. Following additional

filings, on September 1, 2023, the trial court entered an order granting

Hurbert's motion and converted the hearing to a summary-judgment

hearing.

During that summary-judgment hearing, when asked for Officer

Green's position on applying the summary-judgment standard, his

counsel stated:

"I came prepared today to listen to [Hurbert's] evidence as you
indicated in your ruling that if they present no evidence it's
dismissed or if they present insufficient evidence it's
dismissed.

"….

"… The statute is very clear on stand your ground. It
includes civil immunity as you have stated. Not much more I
can say. … We have a counterclaim, but we're here today as
for [Officer] Green on a stand your ground. Burden has
shifted to [Hurbert]. We're here today to listen to [Hurbert]."

(Emphasis added.) Thereafter, Officer Green's counsel also did not object

to the use of the summary-judgment procedure or otherwise change his

position when the trial court stated:
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"[I]t seems to me that the defense doesn't seem to have a real
concern over evidentiary hearing or summary judgment so
why don't I rule on the record and with everybody's agreement
I'll go into Alacourt after the hearing and enter a written
order on the written motion saying I will rule that this is a
summary judgment proceeding where at the beginning of the
-- even before the proceeding begins I have ruled that [the
criminal court's] order meets the defense burden of proving
their affirmative defense of stand your ground.

"So defense doesn't need to say anything further on that
defense. The burden shifts to [Hurbert] to provide substantial
evidence or … genuine issues of material fact and then of
course I'll hear defense out after [Hurbert] gets an
opportunity to go over that evidence."

Hurbert submitted over 24 exhibits in opposition to Officer Green's

motion. Among those exhibits were the transcript from Officer Green's

criminal proceedings; Officer Green's deposition; an affidavit of Ebony

Griffin, a UAB employee that witnessed the incident between Hurbert

and Officer Green; and an affidavit of Officer Demarko Gaines, who was

part of the team that investigated Officer Green's conduct following the

incident.

Other than submitting the criminal court's judgment, Officer Green

submitted no additional evidence in support of his summary-judgment

motion.

After the hearing, on November 29, 2023, the trial court entered a

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summary judgment in favor of Officer Green. In its judgment, the trial

court stated:

"The vast majority of evidence submitted by Ms. Hurbert in
opposition to [Officer] Green's motion for summary judgment
in this case was taken before the Criminal case immunity
hearing took place. … This Court holds that the pre-Criminal
Case immunity hearing evidence does not change the
immunity analysis in this case because (a) that information
was, or could have been, presented to [the criminal court]
before he made his immunity decision, and (b) the material
facts contained in that evidence are not significantly different
from the facts presented to [the criminal court].

"The post-Criminal Case immunity hearing evidence
presented in this case consists of: (a) the deposition of [Officer]
Green in this case [Documents 173 and 175]; (b) an affidavit
of Ebony Griffin in this case, taken in June 2023 [Document
188]; and (c) an affidavit of Demarko Gaines in this case,
taken in June 2023 [Document 193]. The Court will analyze
each of these items of evidence, in turn.

"(a) Mr. Green's testimony supports his claim of
statutory stand your ground immunity.

"(b) Ms. Griffin's June 2023 affidavit testimony is
substantially the same as the testimony she gave on August
1, 2019 [Document 152], on August 5, 2019 [Document 156],
and in November 2022 at the Criminal Case immunity
hearing [Document 171]. As a result, this Court holds that Ms.
Griffin's affidavit testimony does not provide substantial
evidence as to the existence of a genuine issue of material fact
that would call into question the Criminal Court's Order
Granting Immunity.

"(c) Mr. Gaines'[s] June 2023 affidavit testimony is
substantially the same as the testimony he gave in a sworn
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statement on August 6, 2019, prior to the Criminal Case
immunity hearing [see Documents 159, 193, and 194]. In
addition, the material facts presented by Mr. Gaines in his
testimony (both the 2019 testimony and the 2023 testimony)
are consistent with the material facts [the criminal court] took
into account in [its] immunity analysis in the Criminal Case
immunity hearing. Such material facts include (i) that Ms.
Hurbert was confined to a hospital gurney during the incident
in question; (ii) that Ms. Hurbert was in leg irons and had only
one arm free during the incident; (iii) that Mr. Green is a
significantly larger person than Ms. Hurbert; (iv) that in Ms.
Hurbert/the State's view, Ms. Hurbert did not present a
threat to Mr. Green because of her size and the fact that she
was substantially restrained during the incident; (v) that Mr.
Green struck/punched Ms. Hurbert hard, in the eye, several
times; and (vi) that Mr. Green's strikes/punches caused
significant swelling to Ms. Hurbert's eye. After considering all
of this evidence, [the criminal court] concluded that Mr.
Green's actions 'did not amount to any sort of excessive or an
unreasonable act,' that the actions were 'reasonable and
justified under the circumstances,' and 'that he acted in self
defense.' … As a result, [the criminal court] granted Mr.
Green statutory stand your ground immunity and dismissed
the Criminal Case. …

"After considering the arguments and legal briefs of counsel
in this case, and the evidence presented, this Court finds and
holds that Ms. Hurbert has not met her burden of producing
substantial evidence as to the existence of a genuine issue of
material fact that would call into question the Criminal
Court's Order Granting Immunity.

"WHEREFORE, this Court rules consistent with the Criminal
Court and GRANTS Stephon Green's motion for summary
judgment on grounds of statutory stand your ground
immunity. Plaintiff Arethea Hurbert's claims against
Defendant Green are DISMISSED, WITH PREJUDICE, and
with costs taxed as paid."
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(Capitalization in original; emphasis added.)6

F. The City's Summary-Judgment Motion

The City thereafter moved for a summary judgment. Because the

trial court had found that Officer Green was immune from civil liability

in this case based on Alabama's self-defense statute, the City argued that

it was likewise entitled to a judgment in its favor on Hurbert's vicarious-

liability claims against it. In support of its motion, the City attached a

copy of the criminal court's judgment and a copy of the trial court's

November 29, 2023, summary judgment in favor of Officer Green on the

ground that he was entitled to statutory stand-your-ground immunity.

In her response to the City's motion, Hurbert sought

reconsideration of the summary judgment in favor of Officer Green

because, she said, she had presented substantial evidence that a jury

could have used to conclude that Officer Green had acted beyond the

6Hurbert thereafter petitioned this Court for a writ of mandamus,

in which she argued extensively that the procedure applied to her civil
action below, as it relates to a statutory stand-your-ground immunity
defense under § 13A-23-3(d) asserted by Officer Green, was erroneous.
Accordingly, Hurbert asked this Court to issue a writ of mandamus
directing the trial court to vacate its summary judgment in favor of
Officer Green on the ground of stand-your-ground immunity. Our Court
unanimously denied the petition by order. Ex parte Hurbert (No. SC-
2024-0015, Mar. 22, 2024).
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scope of his authority. Accordingly, she also argued that the City could

not be entitled to a judgment in its favor on her vicarious-liability claims.

After holding a hearing, on February 9, 2024, the trial court denied

Hurbert's motion for reconsideration. In a separate order, it granted the

City's motion for a summary judgment. 7

Hurbert then filed a motion in which she asked the trial court to

vacate its judgments in favor of Officer Green and the City. That motion

was denied by operation of law.

G. The Present Appeal

At some point during the pendency of this litigation, Hurbert

became unable to handle her own affairs. In September 2024, the trial

court appointed Leslie Barineau to serve as Hurbert's guardian ad litem.

This appeal challenging the summary judgments entered in favor of

Officer Green and the City followed.

Discussion

7Hurbert thereafter petitioned this Court for a writ of mandamus

directing the trial court to vacate its summary judgments in favor of
Officer Green and the City and to allow a jury to consider the merits and
defenses on Hurbert's claims. Our Court unanimously denied the petition
by order. Ex parte Hurbert (No. SC-2024-0144, Apr. 18, 2024).

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On appeal, Hurbert argues, among other things, that the trial court

misapplied the summary-judgment standard under Rule 56, Ala. R. Civ.

P., when it entered a judgment in favor of Officer Green. As a result,

Hurbert argues that the summary judgment in favor of Officer Green was

erroneous and is thus due to be reversed. Because the summary judgment

in favor of Officer Green must be reversed, Hurbert contends, the

summary judgment in favor of the City must also be reversed. We will

address each of Hurbert's arguments in turn.

A. The Trial Court's Summary Judgment in Favor of Officer Green

Rule 56 sets forth a two-tiered standard for determining whether a

summary judgment should be entered. To be entitled to a summary

judgment, a movant must make a prima facie showing (1) that no genuine

issue of material fact exists and (2) that the movant is entitled to a

judgment as a matter of law. See Blue Cross & Blue Shield of Alabama

v. Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). Once the movant makes

a prima facie showing that there is no genuine issue of material fact, the

burden then shifts to the nonmovant to produce "substantial evidence" as

to the existence of a genuine issue of material fact. Bass v. SouthTrust

Bank of Baldwin Cnty., 538 So. 2d 794, 797-98 (Ala. 1989).

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" ' "[A]n issue [of material fact] is genuine if reasonable persons

could disagree." ' " Black v. Comer, 920 So. 2d 1083, 1089 (Ala. 2005)

(quoting Brigman v. Dejute, 593 So. 2d 51, 53 (Ala. 1991), quoting in turn

William N. Schwarzer, Summary Judgment Under the Federal Rules:

Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982)).

When, as in this case, the defendant moves for a summary judgment

based on an affirmative defense, our Court has explained that it is only

" ' "[w]hen there is no genuine issue of material fact as to any element of

an affirmative defense, … and it is shown that the defendant is entitled

to a judgment as matter of law," ' " that summary judgment is proper.

Caton v. City of Pelham, 329 So. 3d 5, 18 (Ala. 2020) (quoting Wal-Mart

Stores, Inc. v. Smitherman, 743 So. 2d 442, 445 (Ala. 1999), overruled on

other grounds, Ex parte Rogers, 68 So. 3d 773 (Ala. 2010), and quoting in

turn Bechtel v. Crown Cent. Petroleum Corp., 495 So. 2d 1052, 1053 (Ala.

1996)). " ' "In determining whether there is a genuine issue of material

fact as to each element of an affirmative defense, this Court must review

the record in a light most favorable to the plaintiff (the nonmoving party)

and must resolve all reasonable doubts against the defendant (the

movant)." ' " Id.

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In its summary judgment in favor of Officer Green, the trial court

found that the criminal court's judgment holding that Officer Green was

entitled to stand-your-ground immunity and dismissing the criminal

charges against Officer Green "bears great weight[] and by itself meets

[Officer] Green's summary judgment burden of making a 'prima facie

showing that no genuine issue of material fact exists and that [Officer

Green] is entitled to a judgment as a matter of law." (Quoting Owens v.

Ganga Hospitality, LLC, 352 So. 3d 1172, 1174 (Ala. 2021) (emphasis

added).) As a result, the trial court explained that the burden had shifted

to Hurbert to produce substantial evidence that would "call into question

the Criminal Court['s] order."

The trial court found that the evidence that Hurbert produced was

not enough to rebut the presumption created by the criminal court's

judgment. Specifically, the trial court concluded that she had failed to

meet her burden of showing that a "genuine issue of material fact that

would call into question the Criminal Court's order granting immunity"

existed. Thus, "consistent with the Criminal Court," the trial court

entered a summary judgment in favor of Officer Green on the ground of

statutory stand-your-ground immunity.

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The trial court cited no authority in support of the proposition that

the criminal court's ruling created a presumption that no genuine issue

of material fact existed as to whether Officer Green was entitled to stand-

your-ground immunity. Moreover, in his filings at the trial level, Officer

Green cited no legal authority for that proposition. And, as noted above,

he also has not filed a brief on appeal providing such authority. The City

likewise cites no legal authority in support of that proposition and, in

fact, makes no attempt whatsoever to support the trial court's ruling in

favor of Officer Green.

1. The Preclusive Effect of the Criminal Court's Judgment

Hurbert contends that the trial court erred by concluding that the

criminal court's judgment, by itself, created a presumption that no

genuine issue of material fact existed as to whether Officer Green was

immune from suit based on self-defense, thus shifting the burden to her

to provide substantial evidence calling the findings of that judgment into

question. In giving such deferential treatment to the criminal court's

judgment, Hurbert contends, the trial court applied what she describes

as a "species of res-judicata/collateral-estoppel" regarding the effect of the

criminal court's judgment. Hurbert's brief at 49. According to Hurbert,

24
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for a prior judgment to have the effect of precluding claims asserted in a

later action, the requirements of res judicata or collateral estoppel must

be met, including the requirement that both actions involve the same

parties. Because she was not a party to the criminal action, Hurbert

contends, the "same parties" element of res judicata and collateral

estoppel has not been met and, thus, the criminal court's judgment

cannot have a preclusive effect on the question of whether Officer Green

is entitled to a summary judgment based on stand-your-ground

immunity.

It is well settled that res judicata precludes "the relitigation of a

claim that was, or could have been, adjudicated in a prior action."

Bradberry v. Carrier Corp., 86 So. 3d 973, 985 (Ala. 2011). For res

judicata to apply, there must be "(1) a prior judgment on the merits, (2)

rendered by a court of competent jurisdiction, (3) with substantial

identity of the parties, and (4) with the same cause of action presented in

both actions." Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala.

1998).

Collateral estoppel bars the relegation of issues that were litigated

in a prior action. For that doctrine to apply, the following elements must

25
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be met: " ' " ' (1) that an issue in a prior action was identical to the issue

litigated in the present action; (2) that the issue was actually litigated in

the prior action; (3) that resolution of the issue was necessary to the prior

judgment; and (4) that the same parties are involved in the two

actions.' " ' " Stewart v. Brinley, 902 So. 2d 1, 10 (Ala. 2004) (quoting Lee

L. Saad Constr. Co., v. DPF Architects, P.C., 851 So. 2d 507, 520 (Ala.

2002))(additional citations omitted).

As relevant here, our Court has recognized that a judgment in a

criminal case cannot, under res judicata or collateral estoppel, have a

preclusive effect in a civil action because, among other reasons, the

parties to the actions are different. See, e.g., City of Gadsden v. Head,

429 So. 2d 1005, 1007 (Ala. 1983) (citing Bredeson v. Croft, 295 Ala. 246,

326 So. 2d 735 (1976)). A criminal proceeding " ' " is between the state and

the accused party, and seeks vindication of a public right, while in the

civil suit the purpose sought is vindication of purely private rights and

interests." ' " Bredeson, 295 Ala. at 249, 326 So. 2d at 736 (quoting

Sovereign Camp W.O.W. v. Gunn, 224 Ala. 444, 449, 140 So. 410, 415

(1932)) (additional citation omitted).

Here, it is undisputed that the parties to the underlying parallel

26
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criminal and civil proceedings were not the same. In Officer Green's

criminal proceedings, the State was the party bringing charges against

him, not Hurbert. In Hurbert's civil action, Hurbert -- not the State -- was

the one bringing the action against Officer Green. Additionally, unlike in

the criminal proceeding, in the civil proceeding Hurbert sought

vindication of her private rights, not a public right on behalf of the State.

Thus, based on the foregoing, to the extent the trial court intended to give

any kind of preclusive effect to the criminal court's judgment, we agree

with Hurbert that it did so in error. 8

2. The Trial Court's Failure to Correctly Apply the Summary-
Judgment Standard

Hurbert next contends that, by giving the criminal court's judgment

such great deference and concluding that it alone met Officer Green's

8We note briefly that there are also due-process concerns associated

with using a judgment in a criminal proceeding against a civil plaintiff
who was not a party in the criminal proceeding. For instance, in this case,
the trial court's summary judgment in favor of Officer Green placed some
emphasis on the fact that the evidence submitted by Hurbert at the
summary-judgment hearing "could have been" submitted during the
criminal proceeding. We fail to see why this point is relevant given that
the State was the opposing party in Officer Green's criminal proceeding.
As a result, Hurbert had no say in what evidence was or was not
presented to the criminal court.

27
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burden of establishing that no genuine issue of material fact existed as

to whether he acted in self-defense in this case, the trial court placed a

higher burden on her than what must be imposed on a nonmovant under

Rule 56 and our caselaw applying that rule. She also contends that it

forced her to "start [from] behind" because the criminal court's judgment

"carried the defense across the goal line on the evidentiary burden" such

that Hurbert had to "try to push back an already met burden." Hurbert's

brief at 52. 9

Our Court has never had the occasion to address exactly what

impact, if any, an adjudication in favor of a defendant on a stand-your-

ground affirmative defense in a criminal case should have on the

defendant's burden in a civil case, especially at a summary-judgment

hearing. However, our Court has previously acknowledged that while a

criminal court's findings may be used for certain limited evidentiary

9Because it is undisputed that Officer Green did not object to the

use of a summary-judgment proceeding in lieu of a pretrial evidentiary
stand-your-ground hearing under § 13A-3-23(d), he waived his right to
such a hearing. Likewise, at no point did the City object to the use of the
summary-judgment procedure, either at that hearing or thereafter.
Thus, any failure to follow the procedure in § 13A-3-23(d) as described by
our Court in Ex parte Teal, 392 So. 3d 992 (Ala. 2023), and Ex parte Teal,
336 So. 3d 165 (Ala. 2021), is not at issue.

28
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purposes in a civil proceeding, they are not "dispositive" of any issues

raised in that proceeding and, thus, cannot establish that no genuine

issue of material fact exists.

Our Court's prior decision in Bredeson v. Croft provides the best

illustration of this. In that case, Ruth Croft, the beneficiary of two

insurance policies with two different companies, filed suit against each

company, seeking a judgment declaring that she was entitled to the

proceeds of each as the wife of her deceased husband. Croft later moved

for summary judgments in her favor pursuant to Rule 56.

In opposition to Croft's summary-judgment motions, the insurance

companies offered affidavits recounting testimony from a criminal trial

on charges that Croft had killed her husband. In response, Croft amended

her Rule 56 motion to include, among other things, the circuit-court

records finding her not guilty by reason of insanity. The trial court in the

declaratory-judgment action ultimately granted Croft's summary-

judgment motions.

On appeal, our Court held that genuine issues of material fact

remained and, thus, reversed the trial court's summary judgments in

favor of Croft. Specifically, we explained:

29
SC-2024-0589

"In Sovereign Camp W.O.W. v. Gunn, (I), 224 Ala. 444,
140 So. 410 [(1932)], this court cited the following from a West
Virginia case with approval:

" 'In the case of Interstate Dry Goods Stores
v. Williamson, 91 W. Va. 156, 112 S.E. 301, 302, 31
A.L.R. 258 [(1922)], it is said: "It is uniformly held
that a judgment of conviction or acquittal in a
criminal case is not proper evidence in a civil case,
to establish the facts which were necessary to be
established in order to secure such conviction or
acquittal. The parties to the criminal prosecution
are different. The rules of evidence are different in
the two classes of cases, and the purposes and
objects sought to be accomplished are essentially
different. … The criminal proceeding is between
the state and the accused party, and seeks
vindication of a public right, while in the civil suit
the purpose sought is vindication of purely private
rights and interests." -- Freemen, Judgments, §
319; Black, Judgments, § 529; R.C.L. (title
Judgments) §§ 476-7; Micks v. Mason, 145 Mich.
212, 108 N.W. 707, 9 Ann. Cas. 291, 11 L.R.A.
(N.S.) 653 [(1906)], and note.'

"One year later, 1933, the same case, [Sovereign Camp
W.O.W. v. Gunn,] Gunn, (II), 227 Ala. 400, 150 So. 491
[(1933)], was here again and this court said:

" ' But, it must be borne in mind, that the
record of conviction is a solemn judicial finding,
and should be clothed with a prima facie
presumption of verity. Upon the introduction of
such record, the burden of proof shifts to plaintiff
on that issue.

" ' The evidence to overcome such prima facie
showing is not to be limited to an attack on the
30
SC-2024-0589

judgment of conviction on grounds of fraud or
perjury, but all evidence tending to prove the
innocence of the beneficiary in fact is to be
admitted, and weighed under proper instructions
from the court.'

"The case of Fidelity-Phenix Fire Ins. Co. of N.Y. v.
Murphy, (II), 231 Ala. 680, 166 So. 604, (1936), and Gunn, (II),
supra, are cited, among others, in Roden & Son v. State, 30
Ala. App. 229, 3 So. 2d 420 [(1941)], as authority for the
statement of the general principle that '… a judgment in a
civil case is not conclusive as res judicata in a criminal case,
or vice versa, there being no mutuality of parties and a
different degree of proof, respectively, being required. …' "

295 Ala. at 249, 326 So. 2d at 736-37 (emphasis added).

Our Court explained that the trial court had erred in accepting

Croft's acquittal as a basis for the summary judgments. Specifically, we

explained that by entering the summary judgments, "the trial court was

implying that all issues in the civil cases were resolved by the facts that

evolved in the criminal case, and that no issue of fact continued to exist."

295 Ala. at 249, 326 So. 2d at 737. Our Court also explained:

"By definition, an acquittal in a criminal case does not resolve
all factual issues, but leaves factual issues doubtful, as noted
by this court in Fidelity-Phenix Fire Ins. Co. of N.Y. v.
Murphy, (I), 226 Ala. 226, 146 So. 387, at 392 [(1933)], citing
Schindler v. Royal Ins. Co., 258 N.Y. 310, 179 N.E. 711, 80
A.L.R. 1143 (1933):

" ' … a judgment of acquittal is only a
determination that guilt has not been established
31
SC-2024-0589

beyond a reasonable doubt, although a
preponderance of evidence might point thereto, …'

"Summary judgment 'is not a substitute for a trial of
disputed issues of fact.' 3 Barron and Holtzoff, Federal
Practice & Procedure, § 1231."

295 Ala. at 249-50, 326 So. 2d at 737 (emphasis added).

Our Court then concluded (1) that the trial court had erred by

determining that the judgment of acquittal was "dispositive" for purposes

of summary judgment and (2) that genuine "issues as to material facts

remained when the summary judgments were entered." 295 Ala. at 250,

326 So. 2d at 737. Our Court also emphasized that "[s]ummary judgment

'is not a substitute for a trial of disputed issues of fact.' " Id. (citation

omitted).

In short, Bredeson stands for the proposition that the " ' record of

conviction' " from a criminal case may have evidentiary value in a

subsequent civil case and, thus, may be used as evidence in the civil case.

295 Ala. at 249, 326 So. 2d at 736 (emphasis added). However, Bredeson

does not stand for the proposition that a particular result in a criminal

case is dispositive of whether a genuine issue of material fact exists in a

separate civil case.

This reasoning is consistent with decisions of courts in other
32
SC-2024-0589

jurisdictions that have decided the question now before us. See, e.g.,

Kumar v. Patel, 227 So. 3d 557, 560 (Fla. 2017) (holding that, even when

a stand-your-ground criminal-immunity determination is made in a

criminal case, "that determination cannot bind a potential civil plaintiff

who is not a party to the criminal proceeding … because the law does not

generally sanction binding a person to judicial determinations made in a

proceeding to which he or she was not a party").

In the present case, we need not reach the question of whether the

criminal court's judgment was admissible evidence. Even if it was, as the

legal principles above make clear, it is not dispositive as to whether no

genuine issue of material fact exists in Hurbert's civil case.

Regardless, here, the trial court did not apply the normal summary-

judgment standard. In fact, during the hearing on Hurbert's motion to

convert the pretrial evidentiary hearing into a summary-judgment

hearing, the trial court stated that, because of the ruling in the criminal

case as to Officer Green's entitlement to stand-your-ground immunity, it

believed that "it's a higher burden than that. I don't know how to define

that burden because I don't see a lot of guidance in the court cases."

(Emphasis added.) At another point during that hearing, the trial court

33
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appeared to state yet another standard: "I have found as a matter of law

to be clear [Officer Green] has met [his] burden proving as a matter of

law [the criminal court]'s order proves the affirmative defense."

(Emphasis added.) In later describing what it had done in ruling on

Officer Green's motion, the trial court stated as follows: "I didn't look at

it de novo, I looked at it in some different standard, which, hopefully,

eventually, the appellate courts will give us an answer on exactly how

that should go." (Emphasis added.) It further stated: "I would have to

undo that ruling more or less to grant [Hurbert's] relief sought in my civil

case."

If a summary judgment is being considered, the trial court must

apply the summary-judgment standard. Under Rule 56, it is the burden

of a defendant moving for a summary judgment to establish (1) that no

genuine issue of material fact exists regarding the claims in the

complaint and (2) that the defendant is entitled to a judgment as a matter

of law. See Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d

949, 952-53 (Ala. 2004).

Summary judgment is fundamentally different from what the

criminal court was being asked to consider in Officer Green's criminal

34
SC-2024-0589

case.

The criminal court, applying the "preponderance of the evidence"

standard, as required by § 13A-3-23(d), determined, based on the

evidence before it, that it was more likely than not that Officer Green's

conduct satisfied the elements of a stand-your-ground defense. That was

a decision based upon weighing the facts and determining credibility --

something that the criminal court was authorized to do at that stage.

In contrast, "[a]t the summary judgment stage, it is not the trial

court's function ' " to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial." ' " Nix

v. Franklin Cnty. Dep't of Hum. Res., 234 So. 3d 450, 456 (Ala. 2017)

(quoting Camp v. Yeager, 601 So. 2d 924, 927 (Ala. 1992), quoting in turn

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Furthermore,

" ' " [ a] court may not determine the credibility of witnesses on a motion

for summary judgment." ' " Wilson v. Teng, 786 So. 2d 485, 498 (Ala. 2000)

(quoting Ex parte Usrey, 777 So. 2d 66, 68 (Ala. 2000), quoting in turn

Phillips v. Wayne's Pest Control Co., 623 So. 2d 1099, 1102 (Ala. 1993)).

In concluding that the criminal court's judgment created a

presumption that Officer Green had acted in self-defense, the trial court

35
SC-2024-0589

impermissibly gave both weight and credibility to the criminal court's

judgment and the facts underlying it. Further, the trial court appears to

have to precluded consideration of certain evidence presented by

Hurbert, and, in doing so, the trial court also applied some higher,

undefined evidentiary standard against Hurbert. As the legal principles

discussed above make clear, the findings by a criminal court are not

dispositive of whether a genuine issue of material fact exists in a separate

civil case and, thus, do not create a presumption that summary judgment

is due.

At this point, having determined that the trial court admittedly

applied some higher, undefined evidentiary standard against Hurbert

during the summary-judgment hearing below, we are compelled to

reverse the summary judgment in favor of Officer Green and to remand

this case to the trial court for it to consider whether, based on the totality

of the evidence before it and without according any presumptions in favor

of the criminal court's judgment, a genuine issue of material fact existed

as to the claims and defenses in this action. As a result, we need not and

will not address whether the evidence presented by either Officer Green

or Hurbert warrants summary judgment. Therefore, the trial court's

36
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summary judgment in favor of Officer Green is reversed. 10

B. The Trial Court's Summary Judgment in Favor of the City

As stated previously, the City moved for a summary judgment after

the summary judgment in favor of Officer Green based on stand-your-

ground immunity was entered. In its motion, the City argued that

"Alabama law is clear that a municipal peace officer's immunity likewise

benefits the municipality." Because the trial court found Officer Green to

be immune from civil liability in this case based on self-defense, the City

argued, it was entitled to a judgment in its favor on Hurbert's vicarious-

liability claims against it. On appeal, the City maintains this position in

support of its contention that the trial court's summary judgment in its

favor should be upheld.

In her brief on appeal, Hurbert states that she does not take issue

with the rule that when an agent or employee of a municipality is found

to be immune, the municipality likewise cannot be held liable to a

plaintiff. However, because the trial court applied the wrong standard in

10We note that Hurbert also briefly contends that, to the extent they

apply, the principles articulated in our Court's decision in Ex parte Teal,
392 So. 3d 992 (Ala. 2023), violate her constitutional rights to a jury trial.
Thus, Hurbert contends that that case should be overruled. Given our
decision here, we need not reach this issue.
37
SC-2024-0589

entering a summary judgment in Officer Green's favor, Hurbert likewise

contends that the City was not entitled to a summary judgment.

Because we are reversing the trial court's summary judgment in

favor of Officer Green, we agree that we must also reverse the summary

judgment in favor of the City for the reasons set forth in this opinion.

Conclusion

Based on the foregoing, we reverse the trial court's summary

judgments in favor of Officer Green and the City. We remand the case for

proceedings consistent with this opinion. 11

REVERSED AND REMANDED.

Stewart, C.J., and Mendheim, Cook, and McCool, JJ., concur.

Shaw and Bryan, JJ., concur in the result, with opinions.

Wise and Lewis, JJ., concur in the result.

Sellers, J., dissents, with opinion.

11Because the resolution of these issues is dispositive in this case,

we pretermit discussion of any other issues raised by the parties. See
Jackson Hosp. & Clinic, Inc. v. Murphy, 343 So. 3d 490, 498 n.3 (Ala.
2021) (stating that the Court would pretermit discussion of remaining
issues in light of the dispositive nature of another issue).
38
SC-2024-0589

SHAW, Justice (concurring in the result).

I respectfully concur in the result.

It appears that the plaintiff below, Arethea Hurbert, acquiesced, at

least in part, to the manner in which the Jefferson Circuit Court in this

civil action ("the trial court") considered the judgment entered by a court

in a separate criminal prosecution ("the criminal court") of one of the

defendants, Officer Stephon Green, when the trial court entered

summary judgments for Officer Green and the City of Birmingham.

However, I believe that the trial court incorrectly concluded that there

was no genuine issue as to any material fact and that it therefore erred

in entering the summary judgments. Rule 56(c), Ala. R. Civ. P.

"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is
no genuine issue of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to the
existence of a genuine issue of material fact. Bass v.
39
SC-2024-0589

SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); Ala. Code 1975, § 12-21-12. '[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 Assur. Co. of Fla., 547 So. 2d 870, 871
(Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).

See also Price v. Alabama One Credit Union, 397 So. 3d 549, 553 (Ala.

2023).

An acquittal in a criminal case is of questionable value in a civil

case; an acquittal generally shows only that the State failed to meet its

burden of proof. "By definition, an acquittal in a criminal case does not

resolve all factual issues, but leaves factual issues doubtful …." Bredeson

v. Croft, 295 Ala. 246, 249, 326 So. 2d 735, 737 (1976). See also City of

Gadsden v. Head, 429 So. 2d 1005, 1007 (Ala. 1983), and Cantrell v.

Cantrell, 367 So. 3d 426, 447 (Ala. Civ. App. 2022). Generally, an

acquittal shows that the State failed to prove all the elements of the crime

beyond a reasonable doubt.

A conviction of a criminal offense, however, can be considered as a

factual determination subject to rebuttal:

40
SC-2024-0589

" 'But, it must be borne in mind, that the record of
conviction is a solemn judicial finding, and should be clothed
with a prima facie presumption of verity. Upon the
introduction of such record, the burden of proof shifts to
plaintiff on that issue.

" 'The evidence to overcome such prima facie showing is
not to be limited to an attack on the judgment of conviction on
grounds of fraud or perjury, but all evidence tending to prove
the innocence of the beneficiary in fact is to be admitted, and
weighed under proper instructions from the court.' "

Bredeson, 295 Ala. at 249, 326 So. 2d at 736 (quoting Sovereign Camp

W.O.W. v. Gunn, 227 Ala. 400, 403, 150 So. 491, 493 (1933)).

A court's determination that one is immune to a criminal charge

under § 13A-3-23, Ala. Code 1975, is not a mere acquittal. Under § 13A-

3-23(d)(1), "[a] person who uses force, including deadly physical force, as

justified and permitted in this section is immune from criminal

prosecution and civil action for the use of such force, unless the force was

determined to be unlawful." (Emphasis added.) To establish such

immunity in a criminal action, the defendant "must show by a

preponderance of the evidence that he or she is immune from criminal

prosecution." § 13A-3-23(d)(2). Under § 13A-3-23(d)(3), "[i]f … the court

concludes that the defendant has proven by a preponderance of the

evidence that force, including deadly force, was justified, the court shall

41
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enter an order finding the defendant immune from criminal prosecution

and dismissing the criminal charges." Establishing immunity under §

13A-3-23 is something that must be proven by the defendant by a

preponderance of the evidence; it is not a finding of an absence or

insufficiency of proof. Officer Green met that burden in his criminal case,

and the criminal court held: "[T]his Court finds by a preponderance of

the evidence that the Defendant's actions were reasonable and justified

under the circumstances, and that he acted in self defense." The

dismissal was not an acquittal, but a finding of the facts necessary to

establish immunity under § 13A-3-23. Officer Green's burden of proof for

establishing immunity under § 13A-3-23 in his civil case is the same

burden of proof as in his criminal case.

After his criminal charge was dismissed, Officer Green filed a

"renewed motion to dismiss" in the civil action, arguing that his use of

force was "determined to be lawful" and that he was entitled to immunity

from Hurbert's civil claims. Attached to that motion was the judgment

of the criminal court finding immunity. Apparently, no evidence from the

criminal proceeding was included with the judgment at that time. The

trial court denied that motion. In its order, it stated:

42
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"… Hurbert agrees that the [immunity ruling in the
criminal case] bears weight and can be considered in regard
to the question of whether Mr. Green is entitled to immunity
in this case. However, Ms. Hurbert disagrees that the
Criminal Division ruling is automatically dispositive of this
case. Specifically, Ms. Hurbert objects to automatic immunity
for Mr. Green in this case because neither she nor her civil
lawyers participated in the stand your ground evidentiary
hearing and related proceedings in the Criminal Division.

"….

"… Hurbert must be provided an evidentiary hearing in
this case where she can present evidence to rebut the
presumption of immunity created by the Criminal Division's
ruling. Mr. Green shall, of course, also have the opportunity
to present evidence at that hearing….

"….

"To be clear, it is this Court’s opinion and ruling that the
Criminal Division's 'Order Granting Defendant's Motion for
Immunity from Prosecution' by itself meets Mr. Green's
burden of proof for receiving civil stand your ground
immunity. Thus, if Ms. Hurbert produces no evidence, or if
she produces insufficient evidence, to rebut that presumption
this Court will grant the relief Mr. Green seeks and dismiss
this case."

(Emphasis added.)

Hurbert filed a motion requesting that the hearing be considered a

summary-judgment hearing. She further stated:

43
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"[The trial court] correctly recognized that [the criminal
court's] order granting the defendant, Stephon Green, the
stand-your-ground ('SYG') affirmative defense as a matter of
law in the criminal action does not collaterally estop Hurbert,
the plaintiff in this action, from prosecuting her tort claims in
this case. This Court also correctly held that [the immunity
ruling in the criminal case] is just evidence, which should be
considered with all the other evidence produced by the
parties."

(Emphasis added.)12

I agree that a criminal court's finding of immunity under § 13A-3-

23 is not "dispositive" for purposes of a civil case. Here, Hurbert was not

a party in the criminal case, she was not able to produce evidence to show

that Officer Green was not entitled to immunity in that case, and she was

unable to present legal arguments in that case. Her evidence and

strategy may be completely different from the State's in the criminal

case.

The trial court clearly struggled with the significance of the

criminal court's decision and how it should impact the civil case. It

appears that the trial court ultimately considered the criminal court's

12In a hearing below, counsel for Hurbert indicated: "I think [the

immunity ruling in the criminal case] is evidence of a certain position,"
and "[s]o what happened in [the] order is evidence, but we get to submit
evidence as well."
44
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judgment as substantial evidence for the purpose of deciding whether to

enter a summary judgment on the basis that Officer Green had met the

elements to establish immunity under § 13A-3-23. Hurbert requested

that Officer Green's motion be considered as one for a summary

judgment, and Hurbert acknowledged that the criminal court's judgment

was "evidence" that "should be considered with all the other evidence

produced by the parties." In its summary judgment in favor of Officer

Green, the trial court stated: "Officer Green's request is styled as a

motion to dismiss pursuant to [Rule 12, Ala. R. Civ. P.,] but this Court is

treating the motion as one for summary judgment pursuant to [Rule 56,

Ala. R. Civ. P.]" The trial court also stated:

"This Court has previously ruled that the Criminal
Division Immunity Order bears great weight, and by itself
meets Mr. Green's summary judgment burden of making a
'prima facie showing that no genuine issue of material fact
exists and that the movant [Officer Green] is entitled to a
judgment as a matter of law.' Owens v. Ganga Hospitality,
LLC, 352 So. 3d 1172, 1174 (Ala. 2021) (internal citations
omitted). However, this Court has also ruled that Ms.
Hurbert is entitled to an evidentiary hearing in this case to
determine whether she can overcome the presumption
created by the Criminal Division Immunity Order by
providing substantial evidence as to the existence of a genuine
issue of material fact that would call into question the
Criminal Court Order."

45
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(Emphasis added; citations omitted.)

Given that Officer Green was required to prove immunity in his

criminal case and that the criminal court found that he did so by a

preponderance of the evidence, it is not clear that the criminal court's

judgment would not constitute at least substantial evidence that he had

met the elements to establish immunity under § 13A-3-23. Further, it

appears that the trial court required Hurbert only to produce substantial

evidence to defeat Officer Green's motion, clearly showing that it

considered the criminal court's judgment as mere substantial evidence

itself. It ultimately found, however, that Hurbert did not demonstrate a

question of fact:

"[T]his Court finds and holds that Ms. Hurbert has not met
her burden of producing substantial evidence as to the
existence of a genuine issue of material fact that would call
into question the Criminal Court's Order Granting
Immunity."

It might be argued that the trial court gave a heightened

presumption in favor of the criminal court's judgment, but the trial court

stated that the criminal court's judgment created only a "'prima facie

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showing."13 However, reviewing the ruling de novo, as the standard of

review requires, I would agree that, without any presumption, the

criminal court's judgment simply amounts to substantial evidence -- a

prima facie showing -- that Officer Green was entitled to immunity. The

burden thus shifted to Hurbert to produce substantial evidence to create

a genuine issue as to any material fact.

After a review of the evidence submitted by Hurbert, I believe that

she demonstrated a genuine issue of material fact as to whether Officer

Green's use of force was justified. Section § 13A-3-23(a) states:

"A person is justified in using physical force upon another
person in order to defend himself or herself or a third person
from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by that other person,
and he or she may use a degree of force which he or she
reasonably believes to be necessary for the purpose."

13The decision in Kumar v. Patel, 227 So. 3d 557, 561 (Fla. 2017),

held that Florida's stand-your-ground statute did "not confer civil
liability immunity to a criminal defendant who is determined to be
immune from prosecution in the criminal case." The trial court cited this
case in denying Officer Green's renewed motion to dismiss and holding
that Hurbert was entitled to present evidence to rebut any presumption
that the criminal court's judgment created. Kumar does not address
whether a criminal court's determination can be considered as
substantial evidence for purposes of determining immunity in a related
civil proceeding.
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Hurbert submitted the affidavits of two witnesses to the incident. 14

Ebony Griffin, a patient-care technician at the hospital where the

incident occurred, witnessed Officer Green punch Hurbert "several times

to the face and chest while she was shackled to her hospital bed." Griffin

testified that Hurbert "had been complaining that her leg irons/cuffs were

too tight," that she was "immobile," and that it "was not necessary that

Officer Green go into her room." Further, Griffin stated: "Officer Green

was literally holding her with his right hand and punching her with his

left hand. He was whaling on her. On a scale of 1 out of 10, 10 being

hitting her as hard as he can, Officer Green was giving it to her all the

way." Griffin also stated: "I do not believe Ms. Hurbert was a threat to

Officer Green nor could she have injured him in any way being attached

to the bed the way she was. She is tiny woman and he is huge."

Demarko Gaines, who was on duty with the UAB Police

Department during the incident, witnessed Officer Green punch Hurbert

"while she was cuffed to her hospital bed." Officer Gaines indicated that

he did not see Hurbert hit Officer Green with a shoe, as Officer Green

14Hurbert also submitted transcripts of witness statements given

after the incident. It is unclear whether those statements were given
under oath or are otherwise admissible evidence.
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alleged, and that "[s]he was not striking him or anything like that. I

never saw her kick him at any time. She was not able to kick with her leg

irons on. It was not possible."

This testimony, if true, calls into question whether Officer Green

was reasonable in believing that Hurbert was using unlawful physical

force against him and whether it was reasonable for him to believe that

the degree of force he used was necessary. Summary judgment was thus

inappropriate.

For the reasons stated above, I would reverse the trial court's

summary judgment in favor of Officer Green, as well as the judgment in

favor of the City of Birmingham. Because the standard of review is de

novo, and because I believe that the motions for a summary judgment

should not be granted, I disagree with any directive in the main opinion

"to remand this case to the trial court for it to consider" those motions a

second time. ___ So. 3d at ___.

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BRYAN, Justice (concurring in the result).

I concur in the result regarding the Court's decision to reverse the

summary judgments entered by the Jefferson Circuit Court ("the trial

court"). Section 13A-3-23(d), Ala. Code 1975, provides, in pertinent part:

"(1) A person who uses force, including deadly physical
force, as justified and permitted in this section is immune
from criminal prosecution and civil action for the use of such
force, unless the force was determined to be unlawful.

"(2) Prior to the commencement of a trial in a case in
which a defense is claimed under this section, the court
having jurisdiction over the case, upon motion of the
defendant, shall conduct a pretrial hearing to determine
whether force, including deadly force, used by the defendant
was justified or whether it was unlawful under this section.
During any pretrial hearing to determine immunity, the
defendant must show by a preponderance of the evidence that
he or she is immune from criminal prosecution.

"(3) If, after a pretrial hearing under subdivision (2), the
court concludes that the defendant has proven by a
preponderance of the evidence that force, including deadly
force, was justified, the court shall enter an order finding the
defendant immune from criminal prosecution and dismissing
the criminal charges."

The present appeal involves a civil action initiated in the trial court

by Arethea Hurbert against Stephon Green and the City of Birmingham

("the City"). During a stay of this civil action, Green obtained, in a

separate, criminal action based on the same general factual

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circumstances, a pretrial hearing and a resulting judgment finding him

immune from criminal prosecution under § 13A-3-23(d) ("the criminal-

court judgment"). The basic issue presented by this appeal is the effect

of an intervening criminal-immunity order under § 13A-3-23(d) in a civil

action based on the same general factual circumstances.

The language of § 13A-3-23(d) clearly provides for immunity both

from criminal actions and from civil actions. One reading of § 13A-3-

23(d) might suggest that a defendant's acquisition of a criminal-

immunity order using the procedure provided by the statute also renders

the defendant immune from civil liability as well.

However, as explained in the main opinion, even if they are based

on the same general factual circumstances, a criminal action and a civil

action are not the same thing. Thus, this Court cannot interpret the

language of § 13A-3-23(d) to mean that a defendant's acquisition of a

criminal-immunity order also bestows upon the defendant immunity

from a civil action based on the same general factual circumstances. For

the same reason, it seems that we could not interpret the language of §

13A-3-23(d) to mean that, after having received a pretrial hearing under

that statute in a criminal action, such a pretrial hearing is then

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unavailable in a civil action that is based on the same general factual

circumstances. Indeed, if Green had instead failed in his endeavor to

obtain the criminal-court judgment in this case, nothing in the language

of § 13A-3-23(d) indicates that he would be deprived of an opportunity to

also request such a hearing and a resulting immunity order in this civil

action. As noted, the two actions are just not the same thing.

Thus, what effect did the intervening criminal-court judgment have

on the civil action in this case? Based on my reading of § 13A-3-23(d),

Green could have requested a pretrial hearing in the civil action, too.

Instead, however, Green moved to dismiss Hurbert's claims based on the

criminal-court judgment. The trial court denied that motion. Instead of

a dismissal, the trial court determined that a pretrial evidentiary hearing

should also be conducted in the civil action pursuant to § 13A-3-23(d). As

noted above, the trial court's decision to conduct a pretrial hearing

appears to be consistent with the language of § 13A-3-23(d). See Ex parte

Teal, 392 So. 3d 992, 995 (Ala. 2023)(" '[T]he general purpose of immunity

is not just to prevent one from having the burden to "stand trial," but also

to prevent one from having the burden of "being subjected to suit" and of

litigation in the first place.' Ex parte Watters, 220 So. 3d 1093, 1099 (Ala.

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2016)(quoting Ex parte Auburn Univ., 6 So. 3d 478, 484 (Ala. 2008)).

Accordingly, 'a proceeding to test a defendant's entitlement to immunity

should occur as soon as practicable, with due regard to the trial court's

authority to manage its docket and both sides' ability to prepare for the

proceeding.' 220 So. 3d at 1099."). However, a question remained

regarding the evidentiary effect of the criminal-court judgment on the

justification issue to be proved at the pretrial hearing in the civil action.

In its order scheduling the pretrial hearing, the trial court made

clear that it was treating the criminal-court judgment as creating a

rebuttable presumption that Green was immune from civil liability as

well. See Black's Law Dictionary 1437 (12th ed. 2024)(defining

"rebuttable presumption" as: "An inference drawn from certain facts that

establish a prima facie case, which may be overcome by the introduction

of contrary evidence."). The language of § 13A-3-23(d) itself does not

dictate the evidentiary value of a criminal-immunity order for the

purposes of a subsequent pretrial hearing conducted in a separate civil

action under the statute; consequently, some construction of the statute

may be necessary to resolve that question.

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In this case, however, we need not reach such a resolution because,

before the pretrial hearing, Hurbert filed a motion to convert the pretrial

hearing under § 13A-3-23(d) into a summary-judgment hearing. The

trial court granted Hurbert's motion, apparently without objection from

Green or the City. Moreover, as Justice Shaw's writing observes, Hurbert

has agreed in this case that the criminal-court judgment has evidentiary

value for the purposes of the summary-judgment procedure that the

parties decided to use in the trial court. Therefore, this Court's opinion

in this case has analyzed the evidentiary consequence of the criminal-

court judgment within the summary-judgment framework.

However, doing so is not an easy task because the pretrial-hearing

procedure created by § 13A-3-23(d) is simply quite different from the

summary-judgment procedure, with the most obvious difference being

that the clear purpose of § 13A-3-23(d) is to obtain a pretrial factual

determination regarding the issue of justification that would provide

immunity from suit altogether. By contrast, the summary-judgment

procedure is used to evaluate whether a genuine issue of material fact

exists for the purposes of conducting a trial. See Dow v. Alabama

Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).

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Thus, I write specially to emphasize my view that nothing in this

Court's opinion should be construed as approving of the parties' decision

to litigate this case using the summary-judgment procedure. The

legislature has created a pretrial-hearing procedure for the immunity

afforded by § 13A-3-23(d) that is starkly different from the normal

summary-judgment procedure used in civil actions. As this case

illustrates, further attempts to meld the two procedures will no doubt

continue to present novel challenges for the judiciary.

I acknowledge that, on appeal, Hurbert argues that certain

constitutional problems may be implicated by applying the pretrial-

hearing procedure provided by § 13A-3-23(d) to civil actions. However,

on Hurbert's own motion, the pretrial-hearing procedure set forth in §

13A-3-23(d) was not utilized in this case. Therefore, we have no reason

to consider Hurbert's constitutional arguments, and the Court has

reached no holding regarding those issues. Thus, the fact remains that

the legislature's chosen pretrial-hearing procedure set forth in § 13A-3-

23(d) still stands.

Briefly, I also emphasize my view that nothing in the main opinion

should be construed as foreclosing Green and the City from moving for a

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summary judgment on remand. By reversing the trial court's summary

judgments in this case, this Court has essentially concluded that the trial

court has improperly evaluated the evidentiary value of the criminal-

court judgment. As noted in the main opinion, for the purposes of the

summary-judgment procedure adopted by the parties and with regard to

the criminal-court judgment, the trial court concluded that the " 'defense

doesn't need to say anything further on that defense.' " ____ So. 3d at

____. Because this Court's decision has effectively adjusted the

evidentiary value to be accorded the criminal-court judgment, Green and

the City should be afforded an opportunity to move for a summary

judgment with this corrected understanding and an opportunity to

support their motions with whatever evidence they deem necessary in

that pursuit.

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SELLERS, Justice (dissenting).

I respectfully dissent from the decision to reverse the summary

judgments entered by the Jefferson Circuit Court ("the trial court"). The

events surrounding Officer Stephon Green's alleged assault on Arethea

Hurbert have been considered by four different tribunals. The criminal

division of the Jefferson Circuit Court ("the criminal court") determined

that Green had acted in self-defense and was entitled to "stand-your-

ground" immunity from prosecution for his alleged assault on Hurbert

and therefore dismissed a criminal charge that had been levied against

Green. In addition, a three-judge panel determined that Green should

not have been discharged from his employment as a police officer based

on the alleged assault because the discharge decision was not supported

by substantial and legal evidence, and that panel's decision was upheld

by the Alabama Court of Civil Appeals. Ex parte City of Birmingham

(No. CL-2024-0748, Apr. 25, 2025) ___ So. 3d ___ (Ala. Civ. App. 2025)

(table). Finally, in this civil case, the trial court entered summary

judgments in favor of Green and the City of Birmingham.

In the criminal proceedings against Green, the criminal court

determined that Green had met the requirements of § 13A-3-23, Ala.

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Code 1975, which provides immunity from criminal prosecution under

Alabama's stand-your-ground policy. In the present civil case, the trial

court concluded that the dismissal of the criminal charge against Green

created a presumption, for purposes of civil liability, that Green had

acted in self-defense and was entitled to stand his ground when he struck

Hurbert, a presumption that Hurbert did not sufficiently rebut. Section

6-5-338(a), Ala. Code 1975, is also implicated in this case. That statute

provides "immunity from tort liability arising out of [the] conduct [of a

peace officer] in performance of any discretionary function within the line

and scope of his or her law enforcement duties."

In essence, Green has had a total of five judges in criminal and civil

proceedings, in addition to the Court of Civil Appeals, determine, or

uphold a determination, that Green's actions were properly taken in the

line and scope of his duties as a police officer and in self-defense. Yet, in

spite of this, the Court reverses the trial court's summary judgments in

the present case on the basis that it improperly departed from the

summary-judgment standard. The opinions of each of the referenced

tribunals stand for something, and while I do not believe principles of res

judicata bind Hurbert in this case, I do believe that the decisions from

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the other tribunals deserve consideration. In my view, the trial court in

this case properly allowed the judgment dismissing the criminal charge

against Green to create a presumption that Green acted in self-defense

and was entitled to stand his ground, and Hurbert did not sufficiently

rebut that presumption. I would affirm the summary judgments of the

trial court.

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