Ex parte City of Birmingham, Bryan Smith, and DeAris Richardson, [Ms. SC-2023-0819, Nov. 1, 2024]. The Court (Wise, J.; Parker, C.J., and Shaw, Bryan, Stewart, and Mitchell, JJ., concur; Cook, J., concurs specially; Sellers and Mendheim, JJ., dissent) denies a petition for a writ of mandamus arguing peace officer immunity filed by the City of Birmingham and Birmingham Police Officers Smith and Richardson.
In his special concurrence, Justice Cook reluctantly agrees that given the mandatory nature of the Birmingham Police Department’s policy prohibiting high-speed pursuit of traffic offenders genuine issues of fact precluded entry of summary judgment for Birmingham and its officers. Justice Cook explains that the strict no-pursuit policy appears to be a “detailed rule,” creating a fact issue as to whether Officers Smith and Richardson exceeded their authority by engaging in a pursuit contrary to the BPD policy. Ms. *11. Justice Cook posits that such policies hamstring officers’ ability to respond effectively to threats, potentially emboldening offenders to flee, knowing they will not be pursued. Ms. * 4, n.1.
Justice Cook offered the following observations concerning how genuine issues of fact are properly resolved at trial in the context of an immunity defense:
I am unaware of any existing Alabama precedent directly addressing how the immunity determination should be made in the rare cases in which the availability of immunity depends on specific factual findings and when a trial has actually occurred. In Ex parte City of Muscle Shoals, 257 So. 3d 850 (Ala. 2018), we generally stated that disputed issues of fact “implicating whether immunity applies in a given case … may be submitted to a jury,” id. at 856 (citing Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002)), but noted that “the availability of immunity ‘is ultimately a question of law to be determined by the court.’” Id. (quoting Suttles v. Roy, 75 So. 3d 90, 100 (Ala. 2010)). However, our decision in Ex parte City of Muscle Shoals concerned a summary judgment proceeding – the submission of a disputed factual question (that was dispositive of the immunity inquiry) to the jury was not at issue. Although I need not, and do not, reach this issue at this time, I note that – in the qualified-immunity context – federal courts have adopted various approaches to submitting immunity questions to juries when factual disputes are present. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996) (“Where the defendant’s pretrial motions are denied because there are genuine issues of fact that are determinative of the qualified immunity issue, special jury interrogatories may be used to resolve those factual issues.”); Swain v. Spinney, 117 F.3d 1, 10 n.3. (1st Cir. 1997) (“[T]he proper division of functions between judge and jury on the objective reasonableness inquiry may be accomplished either through special interrogatories or through carefully structured jury instructions.”)
Ms. **13-14, n. 4.