                                                                          PUBLISH
                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT


                                        No. 97-6063

                                  D.C. Docket No. 96-00041

SULATA UMED SHETH,
                                                   Plaintiff-Appellant,

       versus


JIMMIE WEBSTER, Officer,
                                                   Defendant-Appellee.

                                     _________________

                                        No. 97-6064
                                    __________________
                               D.C. Docket No. 96-0041-CV-C

SULATA UMED SHETH,

                                                   Plaintiff-Appellee,

       versus

MICHAEL TYRONE WILLIAMS, Sergeant,

                                                   Defendant-Appellant.

                         Appeals from the United States District Court
                            for the Southern District of Alabama


                                        (April 2, 1998)

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

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

                                             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.”



         1
          The “facts” are stated most favorably to the plaintiff and may or may not be the actual
facts.

                                                  2
       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. 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



       2
        The trial court found that Sergeant Williams was dispatched pursuant to the called in
request of a motel employee.

                                                 3
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 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



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

                                                  4
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 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 (1985). This is not a case such as is addressed in

Johnson v. Jones, 515 U.S. 304 (1995) where the court “resolved a fact-related dispute.” Id. at

307. In Johnson, the defendants contended that “we didn’t do it.” Id. at 308. The issues

appealed here concern “not which facts the parties might be able to prove, but, rather, whether or


                                                  5
not certain given facts showed a violation of ‘clearly established’ law. Id. at 311, 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, 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, (11th

Cir. Ga.) at 1. See also Foy v. Holston, 94 F.2d 1528 (11th Cir. 1996).

                2.      Discretionary Function Immunity

         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


                                                  6
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.


       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


                                                  7
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 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


                                                   8
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. 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. at 832. The court

concluded, “Therefore, discretionary function immunity should be afforded to these defendants .

. . .” Id. at 833. The court affirmed a summary judgment dismissal of the claims against the

individual defendants. Id. See also Ex Parte City of B’ham, 624 So. 2d 1018 (Ala. 1993) and

Marnon v. City of Dothan, 677 So. 2d 755 (Ala. 1995). In both of the latter cases, the court

referred to “qualified or discretionary immunity” as if “qualified” 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 B’ham at 1021 and Marnon 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).


       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 (1982) and
Anderson v. Creighton, 438 U.S. 635, 638 (1987).

                                                  9
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 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


       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.

                                                 10
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.

          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


                                                  11
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 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.


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

                                                 12
       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, 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 Webster’s entitlement



       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,     U.S. , 116 S.Ct. 834, 842 (1996).

                                                 13
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.

                                                14
