                                United States Court of Appeals,

                                        Eleventh Circuit.

                                    Nos. 97-6063, 97-6064.

                           Sulata Umed SHETH, Plaintiff-Appellant,

                                               v.

                       Jimmie WEBSTER, Officer, Defendant-Appellee.

                            Sulata Umed SHETH, Plaintiff-Appellee,

                                               v.

                 Michael Tyrone WILLIAMS, Sergeant, Defendant-Appellant.

                                         April 2, 1998.

Appeals from the United States District Court for the Southern District of Alabama. (No. 96-0041-
CB-C), Charles R. Butler, Jr., Judge.

Before TJOFLAT and BARKETT, Circuit Judges, and PROPST*, Senior District Judge.

       PER CURIAM:

       Mobile Police Officer Jimmie Webster (Webster) and Mobile Police Sergeant Michael

Tyrone Williams (Sergeant Williams) separately appeal from the rulings of the district court. The

district court denied these defendants' motions for summary judgment based on assertions of

discretionary function immunity from the state law torts of assault and battery, false arrest and

malicious prosecution. The district court also denied Webster qualified immunity from some of the

federal claims asserted against him. We affirm the denial of summary judgment on the federal and

state law claims with respect to Officer Webster. We reverse the denial of summary judgment on

the state law claims with respect to Sergeant Williams.


   *
     Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
                                             I. FACTS1

       This case arose out of a dispute on October 28, 1994 between the plaintiff-appellee Sulata

Armed Sheth (plaintiff) and Avon Williams. Avon Williams had occupied a room, along with

Aquilla Thomas, at the Beverly Motel in Mobile, Alabama which was owned by plaintiff and her

husband. At about 7:30 a.m. on October 28, Avon Williams demanded a refund from the motel

manager for the remainder of a week's rent which Thomas had paid in advance. He was told that

the motel had a no refund policy, but that he could return at 10:00 a.m. to discuss it with the

plaintiff. Avon Williams was upset. Shortly after 7:30 a.m., Webster arrived at the motel pursuant

to a dispatch call which suggested a dispute at the motel. Webster suggested that the manager give

a refund to resolve the dispute, but advised Avon Williams that the issue was a civil matter to be

resolved "through Small Claims Court."

       After plaintiff arrived at the scene, Avon Williams again demanded a refund. Webster again

arrived, pursuant to another dispatch call. We will not repeat all the alleged discussions which took

place. During the course of the discussions, Webster became angry at plaintiff and arrested her,

placing a handcuff on one wrist and pulling her toward his police car. Plaintiff advised Webster that

she was ill, taking medication and extremely claustrophobic.

       After the arrest, defendant-appellant Mobile police Sergeant Williams arrived on the scene,

pursuant to another dispatch call.2 Webster told Sergeant Williams that plaintiff was resisting arrest.

Sergeant Williams then assisted Webster in further cuffing plaintiff and placing her in the police car.




   1
    The "facts" are stated most favorably to the plaintiff and may or may not be the actual facts.
   2
    The trial court found that Sergeant Williams was dispatched pursuant to the called in request
of a motel employee.

                                                  2
Plaintiff repeatedly requested that Webster and Williams allow her to go to the bathroom. They,

after what plaintiff says was thirty minutes, allowed her to go to the bathroom with a female

housekeeper for the motel, but did not remove her handcuffs. Plaintiff was charged by Webster with

interfering with a police officer, refusing to obey a police officer and resisting arrest. She was

acquitted.

                              II. PROCEDURAL BACKGROUND

A. Plaintiff's Claims

       Plaintiff filed her complaint in this action on December 22, 1995. She makes the following

state law claims against both Webster and Sergeant Williams: assault and battery, false arrest,

malicious prosecution and outrage. She also makes the following federal claims against both

Webster and Sergeant Williams: excessive force and unlawful search and seizure in violation of the

Fourth and Fourteenth Amendments, denial of due process in violation of the Fifth and Fourteenth

Amendments and denial of equal protection in violation of the Fourth (sic) and Fourteenth

Amendments.3

B. Defendants-Appellants' Motions For Summary Judgment and District Court Order

       Each defendant-appellant filed a motion for summary judgment. The court will not repeat

the well established standards applicable to the consideration of motions for summary judgment.

The district court appropriately recited them. Our review is de novo.

       The district court granted both defendants-appellants' motions for summary judgment on the

merits as to the plaintiff's claim of outrage. With regard to the plaintiff's claims of assault and



   3
    Plaintiff also makes claims against the City of Mobile. No issues directly related to that
party are before this court.

                                                 3
battery, false arrest, and malicious prosecution, the district court considered the

defendants-appellants' assertions of discretionary function immunity under state law. The district

court concluded that a reasonable jury could find that both Webster and Sergeant Williams acted

willfully, maliciously and in bad faith with regard to their treatment of plaintiff. The district court

thus concluded that it was not necessary to attempt to precisely define the term "discretionary

function" under state law because, in any event, Webster and Sergeant Williams had "forfeited"

discretionary immunity because they had acted willfully, maliciously and in bad faith. The district

court denied both the defendants-appellants' motions with regard to the claims of assault and battery,

false arrest and malicious prosecution.

       The district court granted both defendants-appellants' motions as to the federal claims of

denial of due process and equal protection. The district court denied Webster's motion as to

unlawful search and seizure and excessive force. The district court granted Sergeant Williams'

motion as to unlawful search and seizure and excessive force based upon qualified immunity.

C. Issues On Appeal

       Sergeant Williams appeals from the district court's denial of state law discretionary function

immunity on the state law claims against him. Webster appeals from the district court's denial of

qualified immunity as to federal law claims against him and from the district court's denial of

discretionary function immunity as to the state law claims against him. The following issues are

presented for appeal: (1) Does this court have jurisdiction to consider Webster's interlocutory appeal

of denial of qualified immunity under federal law? (2) Is Webster entitled to such immunity? (3)

Does this court have jurisdiction to consider an interlocutory appeal of a denial of discretionary




                                                  4
function immunity under Alabama law? (4) Are Webster and Sergeant Williams entitled to such

immunity?

                                     III. COURT'S ANALYSIS

A. Jurisdiction of Appeal

1. Qualified Immunity

        Since both the district court and the defendants rely on the facts as alleged by the plaintiff,

there are, at this stage, no disputed facts. We thus conclude that we have jurisdiction to consider

Webster's appeal of denial of qualified immunity with regard to the federal claims against him.

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This is not a case such

as is addressed in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) where

the court "resolved a fact-related dispute." Id. at 307, 115 S.Ct. at 2153. In Johnson, the defendants

contended that "we didn't do it." Id. at 308, 115 S.Ct. at 2154. The issues appealed here concern

"not which facts the parties might be able to prove, but, rather, whether or not certain given facts

showed a violation of "clearly established' law". Id. at 311, 115 S.Ct. at 2155, citing Mitchell. "[A]

qualified immunity ruling ... is ... a legal issue that can be decided with reference only to undisputed

facts and in isolation from the remaining issues of the case." Id. at 313, 115 S.Ct. at 2156, quoting

Mitchell. "We review such orders de novo, and resolve all issues of material fact in favor of the

plaintiff.... We then answer the legal question of whether the defendants are entitled to qualified

immunity under that version of the facts." Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th

Cir.1998). See also Foy v. Holston, 94 F.3d 1528 (11th Cir.1996).

2. Discretionary Function Immunity




                                                   5
        The issue of whether interlocutory appeals can be taken from the denial of "discretionary

function" immunity under Alabama law is one of first impression in this circuit. Alabama law

recognizes at least two types of immunity from suit or liability for the individual executive acts of

public officers. Not applicable here is the absolute "sovereign" immunity, except for injunctive

relief, afforded to certain state constitutional officers, including sheriffs and deputy sheriffs. See

Tinney v. Shores, 77 F.3d 378 (11th Cir.1996). This constitutional officer sovereign immunity is

pursuant to Article I, Section 14 of the Alabama Constitution of 1901. Alabama law also extends

a form of immunity, not absolute, to state, as opposed to municipal and county, executive officers

who do not hold constitutional offices. This form of immunity is described as "discretionary

function" immunity. Taylor v. Shoemaker, 605 So.2d 828 (Ala.1992).

       Apparently recognizing that certain state police officers are entitled to absolute immunity

as constitutional officers and that other state police officers are entitled to discretionary function

immunity, but that county and municipal police officers arguably had no immunity, the Alabama

Legislature adopted § 6-5-338(a), Code of Alabama 1975. This provision became effective on April

26, 1994. Crouch v. Whatley, 900 F.Supp. 1567, 1572 (M.D.Ala.1995). It provides as follows:

       Every peace officer, except constables, who is employed or appointed pursuant to the
       Constitution or statutes of this state, whether appointed or employed as such peace officer
       by the state or a county or municipality thereof, or by an agency or institution, corporate or
       otherwise, created pursuant to the Constitution or laws of this state and authorized by the
       Constitution or laws to appoint or employ police officers or other peace officers, 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.


                                                  6
        In initially determining whether this court has appellate jurisdiction over the denial of

immunity from state law claims, we are guided by the approach and analysis used in Griesel v. B.D.

Hamlin, 963 F.2d 338, 340 (11th Cir.1992). According to Griesel, while state law governs the

applicability of immunity to state law claims, "federal law determines the appealability of the district

court's order denying summary judgment." Id. (citing Napolitano v. Flynn, 949 F.2d 617, 621 (2nd

Cir.1991)). While this court normally only has jurisdiction over appeals from final decisions of the

district courts, there are some decisions, not final on the merits, that must be heard by this court.

The Supreme Court, in Cohen v. Beneficial Industrial Loan Corp., described "that small class which

finally determine claims of right separable from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated." 337 U.S. 541, 546, 69 S.Ct. 1221,

1225-26, 93 L.Ed. 1528 (1949). The Supreme Court has identified at least one type of case that fits

this appealable class. In Mitchell v. Forsyth, supra, the Court held that a denial of summary

judgment, based on the denial of qualified immunity for alleged federal constitutional deprivations,

is immediately appealable.

         In Tinney v. Shores, this court concluded that, under Alabama law, a claim of state

"sovereign" immunity (Article I Section 14) by state constitutional officers is an immunity from suit.

77 F.3d at 383. The court held, following the precedent set forth in Griesel, that a denial of

summary judgment based on such immunity was properly before the court on interlocutory appeal.

Id. The court relied, in part, on the language found in Section 14 of the Alabama Constitution. ("The

State of Alabama shall never be made a defendant in any court of law or equity.") Constitutional

officers of the state, such as sheriffs and deputies, are immune from suit under Section 14. See


                                                   7
Drain v. Odom, 631 So.2d 971, 972 (Ala.1994); Parker v. Amerson, 519 So.2d 442, 443 (Ala.1987);

Parker v. Williams, 862 F.2d 1471, 1475 (11th Cir.1989). Since this is not a "sovereign" immunity

case, Tinney is not directly applicable here.

       Municipal peace officers performing discretionary functions, "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." § 6-5-338(a), Code of Alabama 1975. The Alabama legislature enveloped

municipal peace officers under the same cloak of immunity as state troopers and other state police

officials who are not constitutional officers. Griesel emphasizes that the "crucial issue ... is whether

the ... immunity ... is an immunity from suit rather than simply a defense to substantive liability."

963 F.2d at 340. In Taylor v. Shoemaker, involving state law claims against state officers, who were

not constitutional officers, in their individual capacities, the court stated that "The specific issue

presented in this case is whether [the defendants] are immune from suit because they were engaged

in a discretionary function." (emphasis added) 605 So.2d at 830. The court considered "the "threat

of vexatious suit[s], with the attendant ... possible need of testifying as to the basis on which the

decision was made'...." Id. 605 So.2d at 832. The court further stated "to permit such suits as this

would, without question, affect those officials in the exercise of their discretion." (emphasis added)

Id. 605 So.2d at 832. The court concluded, "Therefore, discretionary function immunity should be

afforded to these defendants...." Id. 605 So.2d at 833. The court affirmed a summary judgment

dismissal of the claims against the individual defendants. Id. See also Ex Parte City of Birmingham,

624 So.2d 1018 (Ala.1993) and Marnon v. City of Dothan, 677 So.2d 755 (Ala.Civ.App.1995). In

both of the latter cases, the court referred to "qualified or discretionary immunity" as if "qualified"


                                                   8
and "discretionary function" immunity are one and the same ("Thus as a general rule, city officials

are immune from suit unless they violate clearly established law"). Ex Parte City of Birmingham,

624 So.2d at 1021 and Marnon, 677 So.2d at 761.4 In Phillips v. Thomas, 555 So.2d 81, 86

(Ala.1989), the court stated:

       The summary judgment stage, then, becomes the step at which the court must determine
       whether the case should proceed forward, and at which the defendant must meet his burden
       of showing that the alleged negligence arose out of a discretionary or non-ministerial act, in
       order to avail himself of qualified immunity from suit (emphasis added).

Pursuant to § 6-5-338(a), Webster and Sergeant Williams, as municipal police officers, are entitled

to the same discretionary function immunity as are state officers who are not constitutional officers.

       We further note that the immunity afforded to Alabama municipal police officers is very

similar, if not the same, as the immunity afforded the officials under Georgia law in Griesel. Both

involve "authority", "discretion" and the absence of willful conduct. The Griesel court noted that

the immunity at issue "is akin to qualified immunity." Id. at 341. We find no reasonable basis for

allowing an interlocutory appeal in Griesel and denying it here.5 We conclude that we have


   4
    We recognize that these cases also refer to immunity from "tort liability" but we conclude
that the Alabama Supreme Court intends the immunity to be immunity from suit, not merely a
defense. The Supreme Court has referred to "shielding from liability" in discussing qualified
immunity under federal law. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,
73 L.Ed.2d 396 (1982) and Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97
L.Ed.2d 523 (1987).
   5
    We note that both the district court and the appellate court in Griesel referred to the
applicable immunity as "sovereign" immunity. We note that in Hennessy v. Webb, 245 Ga. 329,
332, 264 S.E.2d 878, 881 (1980), the court referred to discretionary immunity as "governmental"
immunity. In Hemak v. Houston County School District, 220 Ga.App. 110, 469 S.E.2d 679, 681
(1996) discretionary immunity is distinguished from "sovereign or governmental immunity" and
is called "official" immunity. In any event it involves, under Georgia law, "discretionary acts
undertaken in the course of their duties and without willfulness, malice or corruption." Hemak at
681. There is no significant difference between the immunity involved in Griesel under Georgia
law and discretionary function immunity under Alabama law.

                                                  9
jurisdiction to review the denial of discretionary function immunity provided for under Alabama

law.

B. Entitlement to Immunity

1. Qualified Immunity

        We affirm the denial of qualified immunity to Webster on plaintiff's false arrest and

excessive force claims. The district court correctly concluded that the facts alleged by plaintiff, as

they relate to Webster, established a violation of clearly established law. Viewing the facts in the

light most favorable to plaintiff, Webster lacked the arguable probable cause necessary to succeed

on a qualified immunity defense. Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir.1997). We

cannot conclude that a reasonable police officer could have believed that probable cause existed to

arrest plaintiff. When plaintiff objected to Webster's attempt to dictate the motel's refund policy and

challenged his knowledge of the law, Webster became incensed and placed her under arrest. We

reject Webster's claim that plaintiff unlawfully interfered with his duties and committed a crime by

demanding that Williams vacate the premises if he wanted a refund.

        The district court was likewise correct in holding that Webster was not entitled to qualified

immunity on plaintiff's excessive force claim. Under plaintiff's allegations, Webster pushed her

against a soda machine, handcuffed her, and dragged her to the police car. There is no evidence in

the record to suggest that plaintiff posed a danger to the officer or others. Accordingly, because of

the absence of any justification for Webster's use of force, application of the Fourth Amendment

reasonableness standard "would inevitably lead every reasonable officer ... to conclude that the force

was unlawful." Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir.1993). See also

Thornton v. City of Macon, supra.


                                                  10
2. Discretionary Function Immunity.

        The court next determines whether the defendants were engaged in the performance of

discretionary functions at the time the alleged torts occurred. If their acts were discretionary acts,

the burden shifts to the plaintiff to demonstrate that the defendants acted in bad faith, with malice

or willfulness in order to deny them immunity. "Acts of such nature are not considered by Alabama

law to be discretionary." Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996). Discretionary acts have been

defined as "those acts as to which there is no hard and fast rule as to the course of conduct that one

must or must not take and those acts requiring exercise in judgment and choice and involving what

is just and proper under the circumstances." Id. at 2. See also L.S.B. v. Howard, 659 So.2d 43, 44

(Ala.1995). The defendants' alleged acts and/or omissions were discretionary.6

        The evidence before the court does not support claims of willfulness, bad faith or malice on

the part of Sergeant Williams, as it pertains to the specific claims of assault and battery, false arrest

and malicious prosecution. Sergeant Williams did not make the decision to arrest the plaintiff.

There is no evidence that he knew that the arrest was unlawful, or that he knew that the use of force

in subduing and handcuffing the plaintiff was unreasonable, or that he had any hand in the

prosecution of the plaintiff. Sergeant Williams merely assisted Officer Webster. The district court

found that "Officer Webster told Sergeant Williams that the plaintiff was resisting arrest." The

district court further found,

               While the court finds that Officer Webster's conduct violated clearly established law,
        the court cannot make the same determination with respect to Sergeant Williams. When
        Sergeant Williams arrived on the scene, Officer Webster had already determined, albeit
        erroneously, that probable cause existed to make an arrest and employed the aforementioned


   6
    The district court found that the plaintiff conceded that the defendants acted within the scope
of their discretionary authority.

                                                   11
        force against the plaintiff. Officer Webster and the plaintiff were standing beside officer
        Webster's police car, and when Sergeant Williams approached them, Officer Webster
        allegedly informed Sergeant Williams that the plaintiff was resisting arrest. At that point,
        Sergeant Williams assisted officer Webster in placing the remaining handcuff on the plaintiff
        and putting the plaintiff in the back of the police car. Sergeant Williams appears to have
        played little, if any, role in making the initial determination as to the existence of probable
        cause and the appropriate amount of force to use in arresting the plaintiff. Sergeant Williams
        assisted Officer Webster when Officer Webster allegedly claimed that plaintiff was resisting
        arrest. Based upon these facts and Sergeant Williams' more limited role in this incident, the
        court cannot conclude that Sergeant Williams violated clearly established law.

        For the same reasons earlier discussed, we conclude that the holding in Johnson v. Jones,

supra, does not defeat our jurisdiction of this state law appeal. Again, the district court's ruling was

based upon facts which are not now disputed. Under both Alabama law and federal law, the core

issue is whether a defendant violated clearly established law. See Ex Parte City of Birmingham and

Marnon, supra. In any event, we can review the legal issue of whether a defendant can lose his

entitlement to discretionary function immunity for malice, willfulness or bad faith which does not

cause or lead to the alleged acts of assault and battery, false arrest and malicious prosecution. It is

certainly not clear that Sergeant Williams should have known that his actions violated the state laws

he is accused of violating. We have jurisdiction to address this core issue. See Dolihite v. Maughon,

74 F.3d 1027 (11th Cir.1996) and Walker v. Schwalbe, 112 F.3d 1127 (11th Cir.1997).

        We affirm the district court's denial of discretionary function immunity as to Webster. There

is an issue of fact as to whether he acted maliciously, willfully or in bad faith with regard to the very

acts leading to assault and battery, false arrest and malicious prosecution.7 We reverse the court's

ruling denying discretionary function immunity to Sergeant Williams. Cf. Gold v. City of Miami,


   7
    The Alabama law is certainly not clearly established that such conduct can result in liability
for assault and battery, false arrest or malicious prosecution. We have interlocutory jurisdiction
where the denial of immunity is based even in part on a disputed issue of law. Behrens v.
Pelletier, 516 U.S. 299, 312-14, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996).

                                                   12
121 F.3d 1442 (11th Cir.1997) and Jones v. City of Dothan, Alabama, 121 F.3d 1456 (11th

Cir.1997). The same facts which establish Sergeant Williams' entitlement to qualified immunity

establish that his acts were not willful, malicious or in bad faith. The Alabama Supreme Court has

equated qualified immunity with discretionary function immunity.8

                                      IV. CONCLUSION

       We AFFIRM the rulings of the district court as they relate to Webster. We REVERSE the

district court's denial of summary judgment as to Sergeant Williams. We REMAND for further

proceedings as to Webster and dismissal of the action, with prejudice, as to Sergeant Williams.




   8
    We do not suggest that entitlement to qualified immunity under federal law will always
entitle a defendant to discretionary function immunity. Qualified immunity under federal law
would not necessarily be defeated by willfulness, malice or bad faith.

                                               13
