Rel: June 27, 2025
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, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2024-2025
_________________________
SC-2024-0419 _________________________
Ex parte Devon McGuire and Spencer Collier
PETITION FOR WRIT OF MANDAMUS
(In re: Faya Rose Toure
v.
Spencer Collier et al.)
(Dallas Circuit Court: CV-19-900204)
STEWART, Chief Justice. SC-2024-0419
Devon McGuire and Spencer Collier have petitioned this Court for
a writ of mandamus directing the Dallas Circuit Court ("the trial court")
to enter a summary judgment on the basis that the claims asserted
against them by Faya Rose Toure are barred by immunity. For the
following reasons, we grant the petition and issue a writ directing the
trial court to enter a summary judgment in favor of McGuire and Collier.
Background
On July 2, 2019, Toure sued the City of Selma ("the City"); Collier,
the Chief of Police for the City; and McGuire, a police officer for the City,
in relation to her arrest for charges of fourth-degree theft of property and
attempting to elude. Toure asserted against McGuire and Collier
numerous claims, including assault and battery; false arrest; unlawful
imprisonment; invasion of privacy; "negligence, carelessness, and
unskillfulness"; wantonness; abuse of legal process; "unreasonable
seizure"; and "defamation/libel." Toure asserted against the City claims
of negligent, careless, and "unskillful" hiring, training, and/or
supervision and "custom of police abuse." Toure sought compensatory
damages in the amount of $1,000,000 and punitive damages in the
amount of $3,000,000.
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McGuire, Collier, and the City ("the defendants") filed an answer
and asserted numerous affirmative defenses, including peace-officer and
State-agent immunity. The defendants later filed a motion for a summary
judgment based on peace-officer immunity under § 6-5-338, Ala. Code
1975, and State-agent immunity, among other grounds. The defendants
submitted in support of their motion deposition testimony from McGuire,
Collier, and Toure, along with an incident report, an arrest report, and
video from McGuire's body camera of the incident underlying Toure's
claims.
The evidence submitted by the defendants showed the following: On
July 16, 2018, McGuire was employed as a police officer for the City and
was traveling in an unmarked patrol vehicle owned by the City. McGuire
observed Toure remove a campaign sign from property adjacent to
Tabernacle Baptist Church. McGuire witnessed Toure place the sign in
her vehicle and drive off. McGuire lost sight of Toure's vehicle, but when
he spotted her again later in her vehicle, he activated his patrol vehicle's
lights, pulled his patrol vehicle alongside Toure's vehicle, and asked her
to return the campaign sign she had removed. Toure told McGuire to "go
to hell" and drove off, running a red light in the process.
3 SC-2024-0419
According to McGuire, he then initiated a traffic stop. Toure exited
her vehicle and approached McGuire's patrol vehicle. McGuire exited his
patrol vehicle to retrieve his body camera from the backseat. At that
point, Toure reentered her vehicle and again drove off. McGuire activated
his patrol vehicle's siren and his body camera, requested additional
officers' assistance, and pursued Toure, who pulled her vehicle over after
driving approximately three and a half blocks.
The ensuing interaction was captured on the body-camera video
that was submitted with the defendants' summary-judgment motion and
is contained as an exhibit to McGuire and Collier's mandamus petition.
The video shows McGuire approach Toure, who was sitting in her vehicle.
A girl, identified as Toure's granddaughter, was sitting in the passenger
seat. McGuire asked Toure to provide him with her identification no less
than eight times before she provided it. Meanwhile, several more police
officers arrived on scene. Throughout the interaction, Toure can be seen
purportedly recording the surrounding scene with her cellular telephone,
and she made numerous statements indicating her dissatisfaction with
officers of the Selma Police Department choosing to detain her. McGuire
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stepped away to radio Toure's driver's license number in to dispatch, and
then he told a group of people on the sidewalk to back up.
After McGuire had walked away, Toure exited her vehicle and
walked around while recording and commenting to the officers and to the
crowd with statements like: "You would think I committed a murder" and
"Do y'all see all these cops?" Toure can also be heard telling her
granddaughter to go around the corner to an office to ask someone to call
Toure's husband. Approximately five minutes elapsed between Toure's
pulling her vehicle over and McGuire's advising her that she was under
arrest. While McGuire attempted to place handcuffs on Toure, she
continued to turn and resist the handcuffs, and she asked McGuire to
handcuff her with her wrists in the front of her body because her wrist
had previously been broken. McGuire refused, eventually got the
handcuffs secured behind Toure's back, and placed Toure in the back of
a police vehicle.
In Toure's deposition, she acknowledged that she had removed a
political sign that did not belong to her from public property. Toure also
acknowledged in her testimony that she had driven three blocks after
realizing McGuire was a police officer.
5 SC-2024-0419
Collier's deposition testimony indicated that Selma Police
Department policy requires officers to handcuff a person upon arrest
before transporting them and that there is no policy prohibiting
handcuffs behind the back, regardless of the circumstances. Collier also
testified that Selma Police Department policy requires officers to use
body cameras during traffic stops or calls for services and that McGuire
had complied with that policy by activating his body camera during his
pursuit of Toure. Collier specifically testified that he did "not disagree
with Detective McGuire's actions" and "did not see anything that
[McGuire] did that violated policy or a good practice of a law enforcement
officer." When Toure asked Collier if he really believed that a person
stopping in three and a half blocks was attempting to elude, Collier
replied that he had actually written that law in Alabama and that this
scenario was a "textbook case."
Collier testified that the Selma Police Department had held a press
conference relating to Toure's arrest in response to multiple inquiries
from different media outlets and to respond to a press conference that
Toure's husband had held regarding the incident. Collier testified that
both he and the detective division of the police department had authority
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to release mug shots to the media, and he could not recall who had
released Toure's mug shot.
In opposition to the defendants' summary-judgment motion, Toure
presented affidavit testimony from Samuel Coleman, a deacon at
Tabernacle Baptist Church, stating that he had observed Toure remove
the campaign sign from the street side of the sidewalk that was not on
church property. Toure also submitted a copy of Local Ordinance, § 6-83,
which prohibits the posting of political signs and posters to utility poles
or other structures on public property or rights-of-way.
Toure also submitted her own affidavit in which she explained that
she had removed the sign, which she believed had been illegally placed
on public property. She stated that, when McGuire initially spoke to her,
he was not in uniform and was in an unmarked police vehicle, she did not
know who he was, and had felt "intimidated" by him. She explained that
when he had later attempted to pull her over, she had not attempted to
elude, but had believed that she was facing possible harassment, and,
thus, had traveled several blocks to a location where witnesses were
present. Toure also submitted an affidavit of her husband, who had
appeared at the scene of her arrest. Toure also submitted a copy of an
7 SC-2024-0419
article from the Selma Times Journal regarding her arrest and a copy of
the front page of the Selma Times Journal with a headline regarding
Toure's theft charges and a picture of her mug shot.
The trial court entered a summary judgment in favor of the City
but denied the motion for a summary judgment as to McGuire and
Collier. Collier and McGuire then petitioned this Court for a writ of
mandamus.
Standard of Review
A petition for a writ of mandamus is an appropriate method by
which an appellate court may review the denial of a summary-judgment
motion that was premised on the defense of immunity. Ex parte Nall, 879
So. 2d 541, 543 (Ala. 2003) (citing Ex parte Rizk, 791 So. 2d 911, 912 (Ala.
2000)). To obtain the extraordinary remedy of a writ of mandamus, the
petitioner must demonstrate: " '(1) a clear legal right to the order sought;
(2) an imperative duty upon the respondent to perform, accompanied by
a refusal to do so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court.' " Id. (quoting Ex parte BOC
Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001)).
8 SC-2024-0419
In reviewing the denial of a summary-judgment motion based on
peace-officer and State-agent immunity, this Court first considers the
evidence surrounding the activities of the defendant in a light most
favorable to the plaintiff. If the defendant presented evidence
demonstrating that he or she was engaged in conduct that would entitle
the defendant to immunity, we then consider whether the plaintiff met
his or her burden of demonstrating by substantial evidence the
applicability one of the exceptions to State-agent immunity set forth in
Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)(plurality
opinion)(setting forth a restatement of State-agent immunity that was
adopted by a majority of the Court in Ex parte Butts, 775 So. 2d 173, 178
(Ala. 2000)). See Ex parte Utilities Bd. of Foley, 265 So. 3d 1273, 1281
(Ala. 2018); Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006);
and Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).
Discussion
Collier and McGuire argue, as they did in support of their
summary-judgment motion, that Toure's claims against them are barred
by the immunity afforded to municipal peace officers by § 6-5-338(a), Ala.
Code 1975, and by the doctrine of State-agent immunity, as restated in
9 SC-2024-0419
Ex parte Cranman. Section 6-5-338(a) provides peace officers with
"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." See also Ex parte Tucker, 303 So. 3d 467,
472 (Ala. 2019)(explaining that immunity extends " 'to employees of
municipalities in the same manner that immunity applies to employees
of the State' " (citation omitted)). "The restatement of State-agent
immunity as set out by this Court in Ex parte Cranman, supra, governs
the determination of whether a peace officer is entitled to immunity
under § 6-5-338(a)." Ex parte City of Montgomery, 99 So. 3d 282, 292
(Ala. 2012)(citing Ex parte City of Tuskegee, 932 So. 2d 895, 904 (Ala.
2005)).
As relevant here, " '[a] State agent shall be immune from civil
liability in his or her personal capacity' " if his or her conduct involved,
among other things, " '(2) exercising his or her judgment in the
administration of a department or agency of government, including, but
not limited to … (d) hiring, firing, transferring, assigning, or supervising
personnel' " or " ' "(4) exercising judgment in the enforcement of the
criminal laws of the State, including, but not limited to, law-enforcement
10 SC-2024-0419
officers' arresting or attempting to arrest persons, or serving as peace
officers under circumstances entitling such officers to immunity
pursuant to § 6-5-338(a), Ala. Code 1975." ' " Ex parte City of
Montgomery, 99 So. 3d at 292 (quoting Ex parte Cranman, 792 So. 2d at
405, and Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala.
2006))(emphasis omitted).1
As mentioned above, after the defendant successfully demonstrates
engagement in conduct that would entitle the defendant to immunity, the
burden then shifts to the plaintiff to demonstrate by substantial evidence
the applicability of one of the two following exceptions to State-agent
immunity:
" '(1) … the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
" '(2) … the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.' "
1In Hollis, this Court expanded category 4 of the Cranman restatement to encompass the peace-officer immunity set forth in § 6-5- 338(a). 11 SC-2024-0419
Suttles v. Roy, 75 So. 3d 90, 94 (Ala. 2010) (quoting Ex parte Cranman,
792 So. 2d at 405).
McGuire and Collier (insofar as his liability is premised upon
McGuire's actions), undisputedly both qualify as peace officers
performing law-enforcement duties at the time of the conduct underlying
Toure's claims against them. McGuire and Collier presented undisputed
evidence indicating that McGuire witnessed Toure remove a campaign
sign that did not belong to her, from property that, likewise, did not
belong to her, and that, when McGuire attempted to conduct a traffic
stop, Toure drove approximately three and a half blocks despite knowing
that McGuire was a police officer. McGuire arrested Toure for fourth-
degree theft of property and attempting to elude a police officer. 2 Without
question, by investigating Toure and attempting to arrest her for
potential crimes he had witnessed, McGuire was performing a
2See § 13A-8-5(a), Ala. Code 1975 (defining fourth-degree theft of
property as: "The theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another …."); and § 13A-10-52(b), Ala. Code 1975 ("It shall be unlawful for a person while operating a motor vehicle on a street, road, alley, or highway in this state, to intentionally flee or attempt to elude a law enforcement officer after having received a signal from the officer to bring the vehicle to a stop."). 12 SC-2024-0419
"discretionary function within the line and scope of his … law
enforcement duties," § 6-5-338(a), and was " ' "exercising judgment in the
enforcement of the criminal laws of the State." ' " Ex parte City of
Montgomery, 99 So. 3d at 292 (citations omitted). See Downing v. City of
Dothan, 59 So. 3d 16, 20 (Ala. 2010)(holding that police officers met
initial burden of showing application of immunity to their actions
because, in deciding whether to arrest someone, they "were engaged in a
law-enforcement function for which State-agent immunity would be
available"); Ex parte City of Tuskegee, 932 So. 2d at 906 (holding that
officers were "entitled to immunity because they were engaged in an
'arrest or attempted arrest,' which is a discretionary function requiring
the exercise of judgment"); Swan v. City of Hueytown, 920 So. 2d 1075,
1079 (Ala. 2005) (explaining that "arrests and attempted arrests," which
require officers to exercise judgment, "clothe[] the officer in State-agent
immunity"); Telfare v. City of Huntsville, 841 So. 2d 1222, 1228 (Ala.
2002)("Generally, arrests and attempted arrests are classified as
discretionary functions."); and Ex parte Duvall, 782 So. 2d 244, 248 (Ala.
2000)(plurality opinion)(holding that arresting a driver "for refusing to
13 SC-2024-0419
comply with a lawful order or direction of a police officer" is "clearly a
discretionary function").
Furthermore, to the extent that Toure's claims against Collier are
based on his own conduct as chief of police, Collier is shielded by category
(2) of the Cranman restatement -- exercising judgment in the
administration of the police department in allocating resources and in
hiring, firing, and supervising police officers.
Because McGuire and Collier presented evidence in support of their
summary-judgment motion demonstrating that McGuire and Collier
were engaged in conduct that would entitle them to peace-officer and
State-agent immunity, the burden shifted to Toure to demonstrate, by
substantial evidence, that one of the two exceptions to that immunity
applied to McGuire's and Collier's conduct underlying any of the claims
that she asserted against them.
Toure argues the applicability of both exceptions. Toure first
asserts that McGuire's and Collier's actions violated her constitutional
right to free speech because, she says, she "had a First Amendment right
to remove the sign." Toure's brief at 12. Toure, however, did not identify
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any authority indicating that their conduct violated the United States
Constitution.
Toure also argues that McGuire and Collier " 'act[ed] willfully,
maliciously, fraudulently, in bad faith, beyond [their] ... authority, or
under a mistaken interpretation of the law.' " Suttles, 75 So. 3d at 94
(citation omitted). Toure contends that they "failed to discharge their
duties pursuant to detail[ed] rules and regulations. The officers failed to
follow clear departmental protocol in investigating an[d] arresting
[Toure]." Toure's brief at 29-30. Toure does not identify what "clear
departmental protocol" McGuire or Collier failed to follow, but she
asserts that there was no investigation and that McGuire failed to timely
activate his body camera.
This Court has explained that if an arrest is made with at least
arguable probable cause, "we cannot say that [the officer] acted 'willfully,
maliciously, fraudulently, [or] in bad faith' so as to remove him from the
umbrella of State-agent immunity afforded him under Ex parte
Cranman." Ex parte Harris, 216 So. 3d 1201, 1214 (Ala. 2016).
" '[P]robable cause exists where the facts and circumstances within the
officer's knowledge and of which he has reasonable trustworthy
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information are sufficient to warrant a man of reasonable caution in the
belief that an offense has been or is being committed.' " Harris, 216 So.
3d at 1213 (quoting Walker v. City of Huntsville, 62 So. 3d 474, 492 (Ala.
2010))(discussing false-arrest and false-imprisonment claims). "Arguable
probable cause exists 'when an officer makes an arrest lacking probable
cause if officers of reasonable competence in the same circumstances and
with the same knowledge would disagree as to whether probable cause
existed.' " Id. (quoting Borders v. City of Huntsville, 875 So. 2d 1168, 1179
(Ala. 2003)).
As explained above, the evidence McGuire and Collier presented
established that McGuire had witnessed Toure take a sign that did not
belong to her, which, they testified, constituted fourth-degree theft of
property. After Toure ignored McGuire's request that Toure return the
sign, McGuire attempted to initiate a traffic stop, which devolved into an
arrest after Toure continued driving her vehicle for over three blocks
before pulling her vehicle cover -- circumstances that Collier testified
constituted a "textbook case" of attempting to elude. Collier further
testified that he did "not disagree with Detective McGuire's actions" and
16 SC-2024-0419
"did not see anything that [McGuire] did that violated policy or a good
practice of a law enforcement officer."
Toure argues that Local Ordinance, § 6-83, implicitly
decriminalized her conduct because, she says, she removed what she
claims was an illegally placed campaign sign from public property and
had no intent to keep the sign. 3 However, whether Toure believed that
she was permitted to remove the sign, whether anyone else has been
arrested for such an offense, and whether Toure is ultimately found
guilty of the crimes for which she was arrested are irrelevant to the
inquiry here: whether McGuire had arguable probable cause to arrest
her. See Harris, 216 So. 3d at 1213 (citing Dixon v. State, 588 So. 2d 903
(Ala. 1991))("[A] showing of probable cause does not require evidence or
information sufficient to support a conviction."). Because McGuire and
3The ordinance, by its title, applies to "[s]igns and posters attached
to utility poles and structures on public property or right-of-way," and the ordinance makes it "unlawful for any person to affix, post, paint, tack, attach or support" certain signs "to any telephone or utility pole, tree, pipe, or other structure, support, or object on, within, upon or over any public street, sidewalk, right-of-way or public property in the City of Selma." It is not clear that the ordinance even applies to signs simply placed in grass and not affixed to objects. Furthermore, it specifically authorizes only the police chief, his staff, the code-enforcement department, and the city council to remove an unlawful sign. 17 SC-2024-0419
Collier presented evidence demonstrating that McGuire had probable
cause, or at least arguable probable cause, to arrest Toure, and because
Toure failed to present substantial evidence establishing otherwise, "we
cannot say that he acted 'willfully, maliciously, fraudulently, [or] in bad
faith' so as to remove him from the umbrella of State-agent immunity
afforded him under Ex parte Cranman." Harris, 216 So. 3d at 1214.
Accordingly, McGuire and Collier are entitled to immunity on Toure's
claims of negligence, wantonness, assault and battery, false arrest,
unlawful imprisonment, invasion of privacy, abuse of process, and
"unreasonable seizure" -- all of which are based on alleged conduct that
occurred during the course of Toure's arrest. 4
4Toure also presents allegations and arguments in her response brief relating to malicious prosecution, but she did not assert that claim in her complaint. Instead, Toure asserted abuse-of-process claims, and such a claim is distinct from a malicious-prosecution claim. See Willis v. Parker, 814 So. 2d 857, 865 (Ala. 2001) (quoting C.C. & J., Inc. v. Hagood, 711 So. 2d 947, 950 (Ala. 1998))(emphasis omitted)(" 'Malicious prosecution concerns the wrongful issuance of process; abuse of process concerns the wrongful use of process after it has been issued.' "). Toure does not address her abuse-of-process claims against McGuire and Collier, and, in any event, Toure did not present substantial evidence establishing that McGuire's or Collier's conduct fell within an exception to immunity. Thus, McGuire and Collier are also immune from Toure's abuse-of-process claims. 18 SC-2024-0419
Toure also asserted defamation and libel claims against McGuire
and Collier. It appears that Toure bases those claims on Collier's decision
to call "a press conference to defame and portray [Toure] as a 'criminal'
to the public" and on his alleged decision to provide a mug shot to the
local press. Toure's brief at 16. Toure alleges, for instance, that Collier
incorrectly informed the press that she had reached speeds of 50 miles
per hour while attempting to elude McGuire -- a claim she denies. Toure
asserts that McGuire's and Collier's "actions were clearly personally and
politically motivated." Toure's brief at 26. Collier, however, testified that
his decision to call a press conference was because of the public interest
in the case, which included numerous requests for information from
various media outlets. The decision to call a press conference and release
information about the case concerned Collier's judgment as police chief
regarding the administration of his department. Toure, however, did not
provide substantial evidence demonstrating that Collier's decision to call
a press conference or that any of the statements made by Collier or
McGuire concerning the incident were made willfully, maliciously,
fraudulently, in bad faith, beyond their authority. Accordingly, Toure did
not present substantial evidence demonstrating that McGuire's and
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Collier's conduct fell within an exception to immunity, and the trial court
should have entered a summary judgment on Toure's claims of
defamation and libel as well.
Conclusion
McGuire and Collier presented evidence in support of their
summary-judgment motion demonstrating that they were engaged in
conduct that would entitle them to peace-officer and State-agent
immunity in relation to Toure's claims against them. Because Toure
failed to present substantial evidence establishing that McGuire's or
Collier's conduct fell within one of the exceptions to that immunity, the
trial court should have entered a summary judgment in McGuire's and
Collier's favor. Accordingly, we grant McGuire and Collier's petition and
issue a writ directing the trial court to enter a summary judgment on the
basis of immunity in favor of McGuire and Collier. See § 6-5-338.
PETITION GRANTED; WRIT ISSUED.
Shaw, Wise, Bryan, Sellers, Mendheim, Cook, McCool, and Lewis,
JJ., concur.