                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                              U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            June 14, 2005
                             No. 04-15311                THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 03-00463-CV-BH-B

RUFUS L. JACKSON,

                                                     Plaintiff-Appellee,

                                  versus

CITY OF CHICKASAW,
BRADFORD J. PENTON, et.al,

                                                     Defendants-Appellants.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                              (June 14, 2005)


Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       Officer Bradford J. Penton and Chief Perry Matthews of the Chickasaw,

Alabama Police Department appeal the district court’s denial of summary

judgment in Rufus L. Jackson’s action against them, claiming they have

discretionary function immunity under Ala. Code § 6-5-338(a).1 We reverse the

district court’s denial of summary judgment to Matthews, but affirm the denial of

summary judgment to Penton.

                                      I. BACKGROUND2

       On the evening of May 5, 2001, Rufus L. Jackson took his stepson, Kentrell

Lett, Kentrell’s cousin, Chadrick Lett, and two of Kentrell’s friends to a skating

rink in Saraland, Alabama. At approximately 10:30 p.m. on May 5, 2001, Jackson

went to pick up the children from the skating rink. On his return from the skating

rink, he headed down Craft Highway toward his brother-in-law’s home, located in

the Alabama Village Community of Prichard, Alabama. This route took Jackson

through Chickasaw, Alabama.

       Jackson turned off Craft Highway onto 12th Avenue. He proceeded through

the intersections of 12th Avenue and Kansas Street. At this time, Officer Penton


       1
         This Court has held it has jurisdiction to review the denial of discretionary function
immunity under Ala. Code § 6-5-338(a) before a final judgment is entered. Sheth v. Webster,
145 F.3d 1231, 1238 (11th Cir. 1998).
       2
           The facts are considered most favorably to the Plaintiff-Appellee, Rufus L. Jackson.

                                                 2
got behind Jackson’s car. Penton claims he was following Jackson’s car because it

appeared to be speeding and the tag light was inoperative. Penton followed

Jackson through the intersection of 12th Avenue and Iriquois Street. At this time,

Penton turned on his blue lights and did a license check through dispatch. Jackson

did not immediately pull over. Jackson claims he thought the officer was in

pursuit of someone else because he had not violated any laws.

      Jackson proceeded and turned on Escambia Street. As Jackson turned on

Escambia Street, Penton ran into the back of Jackson’s vehicle. Penton again

made contact with Jackson’s car when he pushed the vehicle to a stop in front of

Jackson’s brother-in-law’s home. Upon stopping, Jackson got out of the car with

his hands in the air. Penton told Jackson to get back in the car and turn the

ignition off. Penton yelled at Jackson to get back in the car or “I’ll shoot you.”

Jackson reached into the car to turn off the ignition, but did not get back into the

car as directed by Penton. Jackson again faced Penton’s direction, with his hands

in the air, palms facing Penton. Penton again advised Jackson to get in the car.

Penton fired his gun, shooting Jackson in the neck.

      Jackson collapsed to the ground. At this time, Kentrell Lett got out of the

vehicle to attend to his stepfather. After seeing Penton with a gun drawn and still




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yelling at Jackson, Kentrell ran to get back into the vehicle. Penton proceeded to

detain Jackson by placing handcuffs on him.

       Jackson was transported by ambulance to the University of South Alabama

Medical Center where he was treated for a gunshot wound to the neck.3 Following

his release from the hospital, Jackson claims he experienced pain, inconvenience,

medical expenses, emotional distress, humiliation, and embarrassment.

       Neither Jackson nor any minors inside the vehicle were found to be in

possession of any weapons. At an inspection done of the car at the Chickasaw

Police Department, the tag light was found to be in working condition.

       Jackson sued the City of Chickasaw, Penton, and Matthews asserting the

following: Count One–negligent training, and/or supervision, Count

Two–wantonness, recklessness, and/or maliciousness, Counts Three and

Four–violations of 42 U.S.C. § 1983, Count Five–assault and battery, and Count

Six–false imprisonment. The district court dismissed Counts One through Four,

and allowed the case to proceed as to Counts Five and Six. The City, Penton, and

Matthews moved for summary judgment on Counts Five and Six. The district

court denied summary judgment, concluding that material issues of fact existed



       3
          Chief Matthews was not at the scene when the alleged torts occurred, and only arrived
at the scene when Jackson was leaving the scene in the ambulance.

                                               4
which precluded summary judgment. Penton and Matthews now appeal the denial

of summary judgment, claiming they have discretionary function immunity under

Ala. Code § 6-5-338(a).

                                   II. DISCUSSION

      Our review of the denial of summary judgment is de novo. Sheth v.

Webster, 145 F.3d 1231, 1235 (11th Cir. 1998). Ala. Code § 6-5-338(a) 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.

Thus, we must determine whether Penton and Matthews 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

                                          5
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.’” Sheth, 145 F.3d at 1238–39 (citation omitted). Discretionary acts

are “‘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. (citation omitted).

      The acts which form the basis of Jackson’s claim against Penton are

(1) assault and battery from both shooting Jackson and running into Jackson’s

vehicle, and (2) false imprisonment from shooting Jackson and handcuffing him.

The act which forms the basis of Jackson’s claim against Matthews is his failure to

enforce policies regarding Penton’s use of force against Jackson. All of these acts

typically are within the line and scope of the officers’ law enforcement duties and

require the exercise of judgment in particular circumstances. See Hardy v. Town

of Hayneville, 50 F. Supp. 2d 1176, 1195 (M.D. Ala. 1999).

      Because the acts were discretionary, the burden shifts to Jackson to show

that Penton and Matthews acted willfully, maliciously, or in bad faith. See Sheth,

145 F.3d at 1238–39.




                                           6
       Jackson offers no support for the contention that Matthews’ actions were

willful, malicious, or in bad faith. Because Jackson cannot meet this burden, we

find Matthews is entitled to discretionary function immunity and reverse the

district court as to this issue.

       We agree with the district court, however, as to Penton. There is a genuine

issue of fact as to whether Penton acted willfully, maliciously, or in bad faith in

running into Jackson’s car, shooting and handcuffing him. Thus, the district court

did not err in denying summary judgment to Penton.

                                   III. CONCLUSION

       Matthews is entitled to discretionary function immunity under Ala. Code

§ 6-5-338(a), and we reverse and remand on this issue. There is a genuine issue of

material fact as to whether Penton is entitled to discretionary function immunity,

and we affirm the district court’s denial of summary judgment to Penton.

       AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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