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Have you seen the recent news stories regarding Albuquerque police shooting a homeless man.  Here is a link to the most recent CNN article.  These types of incidents raise many questions regarding the civil claims which emanate from such activity.  Questions such as absolute immunity, qualified immunity and caps on damages.

Typically, these cases are brought under common law negligence and wantonness claims in Alabama.  Similar to a claim in a car accident.  In addition, Section 1983 claims are brought under Federal statutory law which incorporates civil claims under the U.S. Constitution.  Finally, if there is a death, the claim may be brought pursuant to Alabama’s wrongful death statutes.

Setting aside the Section 1983 claim for a moment, the problem with the State common law claims for negligence and wantonness as well as the State wrongful death claims is that you are confronted with caps on damages.  Under Alabama law, there is a $100,000.00 cap on any claim against a city or county (and its employees):

 Section 11-93-2

Maximum amount of damages recoverable against governmental entities; settlement or compromise of claims not to exceed maximum amounts.

The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth.

(Acts 1977, No. 673, p. 1161, §2.)

In order to obtain compensation beyond the cap, you must be able to carry the burden under a Section 1983 claim which requires the showing of “deliberate indifference”.  This is a very strong burden to carry when trying to prove an excessive force case.

Section 1983 provides as follows:

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding  for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Not only does the injured party or her family have to show that the officer or City/County acted with deliberate indifference, the plaintiff must also show there was no qualified or absolute immunity.  This can be a very complicated topic which I will not address here, but suffice it to say, if the City/County/State can show they had qualified or absolute immunity, there will be no compensation.

In Alabama, the State has absolute immunity under the State Constitution so you cannot sue the State under Alabama law.


State not to be made defendant.

That the State of Alabama shall never be made a defendant in any court of law or equity.

But, Federal law (Section 1983) trumps State law.  In that situation, if you can show that the State defendant did not have Absolute or Qualified immunity as defined in the case law, you can get around the State Constitution.

What’s the rational for these caps and immunities?  With regard to caps, the limits are due to that fact that the governmental entities receive their money from our tax dollars, and we should limit what “we” have to pay in these claims (even though insurance is readily available).  With regard to immunities, the rationale is that government employees and officers should not be easily sued so that they can carry out their duties without fear of civil reprisals.  But, again, insurance is readily available to cover any such claims.

Personally, I don’t see where these arbitrary caps and immunities make sense, especially when the caps have not be adjusted for cost of living increases.  What do you think?


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