Ex parte City of Anniston, Daniel Price, and Dustin Handling PETITION FOR WRIT OF MANDAMUS (In re: Kimberly D. Ervin, as the personal representative of the Estate of Candi Jean Ward v. City of Anniston, Daniel Price, and Dustin Handling) (Calhoun Circuit Court: CV-16-900205).

Rel: August 30, 2024

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,
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024

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SC-2023-0873
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Ex parte City of Anniston, Daniel Price, and Dustin Handling

PETITION FOR WRIT OF MANDAMUS

(In re: Kimberly D. Ervin, as the personal representative of the
Estate of Candi Jean Ward, deceased

v.

City of Anniston, Daniel Price, and Dustin Handling)

(Calhoun Circuit Court: CV-16-900205)

STEWART, Justice.
SC-2023-0873

PETITION DENIED. NO OPINION.

Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur.

Sellers, J., dissents, with opinion, which Mendheim, J., joins.

Wise and Cook, JJ., recuse themselves.

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SELLERS, Justice (dissenting).

I respectfully dissent from the Court's decision to deny the petition

for a writ of mandamus in this matter. In my view, the petitioners have

demonstrated that the trial court erred in concluding that there is

sufficient evidence indicating that the police-officer defendants in this

case acted willfully, maliciously, fraudulently, in bad faith, beyond their

authority, or under a mistaken interpretation of the law such that they

were precluded from relying on peace-officer immunity.

In September 2015, several drivers passing through Anniston on

Highway 202 called 911 emergency services and reported that they had

seen a person in dark clothing, later identified as Candi Jean Ward, lying

on the shoulder of the highway. Police officers Daniel Price and Dustin

Handling, who were employed by the City of Anniston ("the City"), as well

as emergency-medical-services ("EMS") workers, arrived at Ward' s

location. The EMS workers informed the officers that they had found on

the ground nearby a bottle of pills, later identified as Diazepam, and that

they also believed that Ward was intoxicated. Ward admitted to the

officers that she had been drinking and that she had taken one of the

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pills, although a toxicology report later showed that Ward had little

alcohol and Diazepam in her system.

The EMS workers also informed the officers that Ward was

suffering from road rash and that Ward had told them that she "fell out

of the truck" that was being driven by her "live-in partner," Shaneyfelt

Troy Robinson. Ward suggested to the officers that Robinson had been

"hitting" Ward at the time. It appears that the officers had previously

responded to a disturbance involving Ward and Robinson at a local

business approximately 15 minutes earlier.

When the officers asked Ward if she wanted medical treatment, she

refused treatment. Instead, she told the officers that her nearest relative

was her aunt, who lived in Talladega, and that her aunt could come and

pick her up. Ward, however, did not have a telephone and did not know

her aunt's phone number. Ward explained to the officers that she did,

however, know Robinson's phone number, that Robinson knew her aunt's

phone number, and that the officers could call Robinson to retrieve her

aunt's phone number. Instead, the officers recommended that Ward walk

to Dee Ford's, a nearby bar, to find someone that she knew or to use the

bar's phone to call Robinson and, in turn, her aunt. Price testified that

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he also suggested to Ward that he could call her a cab, but it is disputed

as to whether that conversation occurred. Price and Handling made no

attempt to call Robinson or to have their police dispatcher call Robinson.

Handling told Ward that he could arrest her for possession of a

controlled substance or for public intoxication but that he did not want to

do so because he had "something he need[ed] to do first thing in the

morning." He also told her that he did not want to have to spend the

night at the hospital with Ward if she was arrested for public

intoxication. After additional attempts to persuade Ward to walk to Dee

Ford's failed, the officers allowed Ward to leave the scene and walk

toward Talladega along Highway 202. They warned Ward to stay to the

right of the asphalt, and they told her that, if they caught her on the

asphalt, they would take her to jail. Shortly thereafter, 911 emergency

services received a call from a driver on Highway 202 reporting that he

had fatally struck a woman who was in the middle of the road wearing

dark clothes and who was later identified as Ward. Following an internal

investigation of the incident by the Anniston Police Department, the

officers resigned their employment.

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Kimberly D. Ervin, as the personal representative of Ward' s estate,

sued the City and the officers in the Calhoun Circuit Court, asserting

that the officers had acted negligently, wantonly, maliciously, or in bad

faith and had caused Ward' s death. The City and the officers moved for

a summary judgment, asserting peace-officer immunity pursuant to § 6-

5-338, Ala. Code 1975. The trial court denied that motion, and this

petition followed.

In deciding whether a police officer is entitled to immunity under §

6-5-338, courts consider the factors set out in Ex parte Cranman, 792 So.

2d 392 (Ala. 2000) (plurality opinion), as modified in Hollis v. City of

Brighton, 950 So. 2d 300 (Ala. 2006). The officers in this case are entitled

to immunity if the basis of their alleged liability consists of actions they

took in exercising judgment in the enforcement of the criminal laws of

the State. Id. It is undisputed that the officers were enforcing those laws

when they took the actions that allegedly led to Ward's death. There are,

however, some exceptions to peace-officer immunity that Ward claims

apply here. Specifically, she asserts that the officers acted willfully,

maliciously, fraudulently, in bad faith, beyond their authority, or under

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a mistaken interpretation of the law. See Cranman, 792 So. 2d at 405;

Hollis, 950 So. 2d at 307.

In specifically asserting that the officers acted beyond their

authority, Ervin claims that they breached duties set out in detailed

"rules or regulations" such as those embodied by a "checklist." See

Giambrone v. Douglas, 874 So. 2d 1046, 1053 (Ala. 2003). However, for

a particular rule or regulation to serve as the basis for an exception to

State-agent or peace-officer immunity, it must be so specific that it

removes any discretion that a State agent or peace officer otherwise

would have and puts the agent or officer on notice that certain behavior

is prohibited. Odom v. Helms, 314 So. 3d 220, 229 (Ala. 2020). The

administrative order upon which Ervin relies in the present case provides

broadly that Anniston police officers should "provide a safety net" for

"victims" of domestic violence. Examples of safety nets recognized in the

administrative order include "mak[ing] telephone calls or physical

contacts with persons" who can provide support to victims and providing

victims with "information" regarding people who can assist them. The

administrative order does not expressly direct officers to contact any

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specific persons, and it is noteworthy here that 911 emergency-services

personnel contacted EMS workers to assist Ward.

I agree with the officers' and the City's position that the

administrative order "is a general, broad policy 'instituted to ensure that

all personnel consider the fact that victims feel hopeless, vulnerable,

frightened and traumatized ….' " Petition at 15. There are a myriad of

potential situations involving victims of domestic violence that police

officers might be confronted with, and I do not consider a broad policy

regarding the provision of a "safety net" by, for example, contacting

unnamed persons who might assist a victim to be the sort of detailed

checklist that would remove the discretion that an officer must have in

dealing with each particular situation based on its own unique

circumstances. I also agree with the police officers and the City that the

initial determination of whether Ward was a "victim" in the first place

also required some degree of discretion on the officers' part. Cf. Howard

v. City of Atmore, 887 So. 2d 201, 207 (Ala. 2003) (concluding that a police

officer acting as a jailer had discretion to determine whether an inmate

was intoxicated, was an addict, or was a suicide risk with respect to

complying with a policy requiring regular frequent checks of such

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inmates); Walker v. City of Huntsville, 62 So. 3d 474, 498 (Ala. 2010)

(holding that police officers had discretion to determine whether a

prisoner was injured before or during an arrest with respect to complying

with a policy requiring the officers to take injured prisoners for medical

attention). A police officer's alleged negligence or wantonness is not

enough to establish that the officer violated a detailed mandatory

directive that removed the officer's discretion while engaging in police

activity. See Ex parte City of Montgomery, 272 So. 3d 155, 168 (Ala.

2018) ("[N]egligent or wanton conduct will not support the conclusion

that a police officer has acted beyond his or her authority when he or she

is exercising discretion in the discharge of his or her law-enforcement

duties.").

I also do not believe that there is substantial evidence indicating

that the police officers acted willfully, maliciously, fraudulently, in bad

faith, or under a mistaken interpretation of the law. Again, negligence

or wantonness is not enough. Ex parte City of Montgomery, 272 So. 3d

at 168. The evidence does not indicate that the officers intended to injure

Ward or that they otherwise acted with ill intent or bad faith. To the

contrary, although the officers arguably acted negligently, the evidence

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establishes that the officers tried to help Ward, not harm her. That they

were unsuccessful does not subject them to liability.

Because, in my view, there is not substantial evidence showing the

existence of an exception to peace-officer immunity, I would grant the

petition and issue a writ of mandamus directing the trial court to dismiss

Ervin's claims against the police officers and Ervin's claims against the

City grounded on those officers' actions. See City of Crossville v. Haynes,

925 So. 2d 944, 954-55 (Ala. 2005) (indicating that, if a police officer is

entitled to immunity, then so is the city employing the officer).

Mendheim, J., concurs.

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