Rel: March 3, 2023

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, 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

SC-2022-0525

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Ex parte Lester Lee Thomas

PETITION FOR WRIT OF MANDAMUS

(In re: Jennifer Dell Peach 

v. 

Lester Lee Thomas et al.) 

(Mobile Circuit Court: CV-18-901977)
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PER CURIAM.

Jennifer Dell Peach sued, among others, Lester Lee Thomas in the 

Mobile Circuit Court ("the trial court"), asserting claims arising from a 

multivehicle accident that took place after Thomas, a State trooper with 

the Alabama Law Enforcement Agency, allegedly blocked both lanes of a

highway to perform traffic stops of speeding drivers. Thomas moved for 

a summary judgment, arguing, among other things, that he was entitled 

to State-agent immunity. The trial court denied that motion. Thomas 

petitions this Court for a writ of mandamus directing the trial court to

enter a summary judgment in his favor on the ground of State-agent 

immunity. For the following reasons, we deny the petition. 

Facts and Procedural History

At approximately 10:00 a.m. on August 13, 2016, Thomas initiated 

a traffic stop of a speeding driver ("the first speeder") traveling north on 

Interstate 65 ("I-65") near mile marker 22. Thomas initiated the stop 

along a stretch of I-65 that has two northbound travel lanes ("the left 

inside lane" and "the right outside lane") with a speed limit of 70 miles 

per hour. 
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Thomas was parked in his police vehicle on the right shoulder of I65 when his radar recorded the first speeder drive past him at 83 miles 

per hour in the left inside lane. Thomas activated his vehicle's emergency 

lights, merged into the left inside lane, and began to pursue the first 

speeder. As Thomas accelerated his vehicle in pursuit of the first 

speeder, he noticed, in his rearview mirror, another speeding driver ("the 

second speeder") traveling behind him in the left inside lane. The first 

speeder pulled his vehicle off the highway, coming to a stop on the right 

shoulder of I-65 near mile marker 33. Shortly thereafter, Thomas stopped 

his police vehicle, in the right outside lane next to the first speeder's 

vehicle, obstructing access to one of only two travel lanes, and 

disembarked from his vehicle. 

After exiting his police vehicle, Thomas walked into the left inside 

lane and, facing the second speeder's oncoming vehicle, gestured for the 

second speeder to stop and pull over.1 The second speeder applied his 

1Whether Thomas stepped into the left inside lane is disputed. At 

his deposition, Thomas denied stepping into or doing anything to obstruct 

the left inside lane. Other witness testimony, however, indicated that 

Thomas stepped into the left inside lane, trying to physically wave down 

cars to get them to stop or slow down, and that had the second speeder

not stopped he would have struck Thomas. For the purposes of our 

analysis, we must assume that Thomas stepped into the left inside lane.
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vehicle's brakes and came to a sudden halt in the left inside lane. Upon 

seeing the blockade of both travel lanes ahead, the five motorists 

traveling behind the second speeder applied their vehicles' brakes to 

avoid colliding with the vehicles in front of them. The driver in the first 

vehicle behind the second speeder diverted his vehicle to the left and into 

the grass median, while the driver in the second vehicle behind the 

second speeder came to a halt. Peach was a passenger in the third vehicle 

behind the second speeder when her daughter, the driver of that vehicle, 

hit her vehicle's brakes in response to the sudden stop in traffic flow but 

lost traction and control of her vehicle, which then slid and crashed into 

the vehicles ahead. Peach suffered serious injuries in the crash.

In August 2018, Peach sued Thomas in the trial court, alleging that 

Thomas had negligently or wantonly caused the chain-reaction collision 

that led to her injuries. Thomas filed a motion for a summary judgment, 

asserting, among other things, that he was entitled to State-agent 

See Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002) (citing Ex parte Rizk, 

791 So. 2d 911, 912 (Ala. 2000)) ("[C]ourts, both trial and appellate, must 

view the record in the light most favorable to the nonmoving party, accord 

the nonmoving party all reasonable favorable inferences from the 

evidence, and resolve all reasonable doubts against the moving party

....").
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immunity pursuant to § 6-5-338(a), Ala. Code 1975, and Ex parte 

Cranman, 792 So.2d 392 (Ala. 2000) (plurality opinion),2 as modified by 

Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006). The trial court 

denied the summary-judgment motion. Thomas now petitions this Court 

for a writ of mandamus directing the trial court to enter a summary 

judgment in his favor on the basis of State-agent immunity.3

Standard of Review

The denial of a motion for a summary judgment grounded on a 

claim of immunity is reviewable by petition for writ of mandamus. Ex 

parte Purvis, 689 So. 2d 794 (Ala. 1996). Mandamus is a drastic and 

extraordinary remedy, and it will be issued only when there is "(1) a clear 

2Cranman, a plurality decision, was adopted by a majority of this 

Court in Ex parte Butts, 775 So. 2d 173 (Ala. 2000), and was later codified 

at § 36-1-12, Ala. Code 1975.

3In his petition, Thomas alternatively claims that he is entitled to 

a writ of mandamus directing the trial court to enter a summary 

judgment in his favor based on other, nonimmunity grounds. However, 

although this Court "will consider a challenge to a denial of a summaryjudgment motion that is 'grounded on a claim of immunity,'" we "will not 

consider secondary arguments that a summary judgment was 

appropriate on other grounds." Ex parte Smith, 327 So. 3d 184, 187 (Ala. 

2020). For this reason, we address only matters relevant to the issue of 

Thomas's entitlement to a summary judgment based on State-agent 

immunity.
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legal right in the petitioner 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) properly invoked 

jurisdiction of the court." Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998) 

(citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)). 

"In determining, on mandamus review, whether the trial court exceeded 

the limits of its discretion, 'the appellate courts will not reverse the trial 

court on an issue or contention not presented to the trial court for its 

consideration in making its ruling.'" Ex parte Ebbers, 871 So. 2d 776, 

786 (Ala. 2003) (quoting Ex parte Wiginton, 743 So. 2d 1071, 1073 (Ala. 

1999)).

When reviewing the denial of a summary-judgment motion 

asserting State-agent immunity, this Court asks whether there is a 

genuine issue of material fact as to whether the movant is entitled to 

immunity. Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002). In making 

that determination, we "view the record in the light most favorable to the 

nonmoving party, accord the nonmoving party all reasonable favorable 

inferences from the evidence, and resolve all reasonable doubts against 

the moving party." Id. (citing Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 
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2000)). If a genuine issue of material fact exists with respect to whether 

the movant is entitled to State-agent immunity, summary judgment is 

not appropriate. Id.

Discussion

Thomas contends that Peach's claims against him are barred by the 

doctrine of State-agent immunity. In Ex parte Cranman, this Court 

restated the doctrine of State-agent immunity. The Cranman

restatement, as modified by Hollis v. City of Brighton, provides, in 

pertinent part:

" 'A State agent shall be immune from civil liability in 

his or her personal capacity when the conduct made the basis 

of the claim against the agent is based upon the agent's

" '....

" '(4) exercising judgment in the enforcement of the 

criminal laws of the State, including, but not limited to, lawenforcement 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. '"

950 So. 2d at 309 (second emphasis omitted). Thomas also asserts "peaceofficer immunity" pursuant to § 6-5-338(a). In Hollis, this Court modified 

category (4) of the Cranman restatement to incorporate the immunity for 

peace officers set forth in § 6-5-338(a). Accordingly, this Court now 
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recognizes that the restatement of State-agent immunity as set out by 

this Court in Cranman, and as modified by Hollis, "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); see also Howard v. City of Atmore, 887 So. 2d 201, 204 (Ala. 2003)

and Ex parte Kennedy, 992 So. 2d 1276, 1281-82 (Ala. 2008).

There are two exceptions to the immunity recognized in Cranman:

"Notwithstanding anything to the contrary in the 

foregoing statement of the rule, a State agent shall not be 

immune from civil liability in his or her personal capacity

"(1) when 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) when the State agent acts willfully, maliciously, 

fraudulently, in bad faith, beyond his or her authority, or 

under a mistaken interpretation of the law."

792 So. 2d at 405.

Furthermore, this Court has established a "burden-shifting" 

process when a party raises the defense of State-agent immunity. Ex 

parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). A party who 

asserts the defense of State-agent immunity bears the burden of 
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demonstrating that the plaintiff's claims arise from a function that would 

entitle the State agent to immunity. Id. If the State agent satisfies that 

initial burden, the burden then shifts to the plaintiff, who must 

demonstrate that one of the two exceptions to State-agent immunity 

applies. Id. "One of the ways in which a plaintiff can show that a State 

agent acted beyond his or her authority is by proffering evidence that the 

State agent failed '"to discharge duties pursuant to detailed rules or 

regulations, such as those stated on a checklist. "'" Kennedy, 992 So. 2d 

at 1282-83 (quoting Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 

2003), quoting in turn Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000)).

A State agent also acts beyond his or her authority by violating a rule or

statute that imposes a mandatory duty upon the State agent and is " ' so 

specific that it removes the [S]tate agent's discretion and puts him on 

notice that certain, specific acts are unacceptable. '" Odom v. Helms, 314 

So. 3d 220, 229 (Ala. 2020) (quoting King v. Archer (No. 2:17-CV-174-

KOB, Sept. 6, 2018) (N.D. Ala. 2018) (not reported in F. Supp. 3d)); see

also, e.g., Norris v. City of Montgomery, 821 So. 2d 149, 155 (Ala. 2001) 

(holding that police officer was not entitled to discretionary-function 
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immunity under § 6-5-338(a) because evidence demonstrated that officer 

had violated statute imposing a mandatory duty).

We conclude that Thomas met his initial burden of demonstrating

that he was engaged in law-enforcement activities for which State-agent 

immunity would be available. It is undisputed that Thomas was acting 

generally within the line and scope of his law-enforcement duties and 

was attempting to enforce the traffic laws of the State when he initiated 

the double traffic stop giving rise to this action. See, e.g., Kennedy, 992 

So. 2d at 1283 (holding that police officers met initial burden under 

Cranman upon showing that, while serving warrant, they were 

attempting to generally enforce the criminal laws of the State and were 

performing a function within the line and scope of their law-enforcement 

duties). The question then becomes whether Thomas's conduct fell within 

an exception to State-agent immunity.

Peach contends that Thomas acted beyond his authority in 

performing the traffic stops at issue, because, she argues, his conduct 

violated various provisions of the Alabama Rules of the Road Act, § 32-

5A-1 et seq., Ala. Code 1975. Specifically, Peach contends that Thomas 

violated §§ 32-5A-212(a), 32-5A-215(b), and 32-5A-215(d), Ala. Code 1975 
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(collectively referred to as "the pedestrian statutes"), when he allegedly 

walked into the left inside lane of I-65 to stop the second speeder. The 

relevant portion of § 32-5A-212(a) provides that "[e]very pedestrian 

crossing a roadway ... shall yield the right-of-way to all vehicles upon the 

roadway." (Emphasis added.) Section 32-5A-215(b) provides, in relevant 

part, that "any pedestrian walking along and upon a highway shall walk 

only on a shoulder ...." (Emphasis added.) Finally, § 32-5A-215(d)

mandates that "any pedestrian upon a roadway shall yield the right-ofway to all vehicles upon the roadway." (Emphasis added.) We agree that

a "pedestrian" who suddenly steps into a lane of fast-moving interstate 

traffic, as Thomas is alleged to have done, has at least violated § 32-5A215. Furthermore, § 32-5A-215(d) imposes a mandatory duty on all 

pedestrians -- i.e., "[a]ny individual afoot," § 32-1-1.1(43), Ala. Code 1975 

-- to yield to vehicles on the roadway.4 Thus, if that section applies to 

Thomas, its violation would indicate that Thomas acted beyond his 

authority by failing to yield to oncoming traffic. See Norris v. 

Montgomery, 821 So. 2d at 155 (holding that discretionary-function 

4As noted in several of the special writings, at the time of the 

collision made the basis of Peach's claims, former § 32-1-1.1(41), Ala. 

Code 1975, defined "pedestrian" as "any person afoot." (Emphasis added.)
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immunity under §6-5-338(a) "evaporates upon the violation of a statute 

imposing a mandatory duty"). The question, however, is whether the 

pedestrian statutes applied to Thomas at the time he attempted the 

double traffic stop. Thomas contends they did not.

In the trial court, Thomas made two arguments as to why the 

pedestrian statutes did not apply to him. First, he argued that § 32-5A7, Ala. Code 1975, excused his noncompliance with the pedestrian 

statutes. That section exempts drivers of authorized emergency vehicles

who are responding to an emergency or pursuing a suspected law violator

from complying with certain traffic laws -- such as those concerning

speeding, illegal parking, and obeying traffic signals. Section 32-5A-7 

provides:

"(a) The driver of an authorized emergency vehicle, 

when responding to an emergency call or when in the pursuit 

of an actual or suspected violator of the law or when 

responding to but not upon returning from a fire alarm, may 

exercise the privileges set forth in this section, but subject to 

the conditions herein stated.

"(b) The driver of an authorized emergency vehicle may:

"(1) Park or stand, irrespective of the 

provisions of [the Alabama Rules of the Road Act];
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"(2) Proceed past a red or stop signal or stop 

sign, but only after slowing down as may be 

necessary for safe operation;

"(3) Exceed the maximum speed limits so 

long as he does not endanger life or property;

"(4) Disregard regulations governing 

direction of movement or turning in specified 

directions.

"(c) The exemptions herein granted to an authorized 

emergency vehicle shall apply only when such vehicle is 

making use of an audible signal meeting the requirements of 

Section 32-5-213[, Ala. Code 1975,] and visual requirements 

of any laws of this state requiring visual signals on emergency 

vehicles.

"(d) The foregoing provisions shall not relieve the 

driver of an authorized emergency vehicle from the duty to 

drive with due regard for the safety of all persons, nor shall 

such provisions protect the driver from the consequences of 

his reckless disregard for the safety of others."

Section 32-5A-7, however, provides no exemption, express or implied, to 

the pedestrian statutes. Moreover, even if such an exemption could be 

read into that statute, there is a question of fact in this case regarding 

whether Thomas was "making use of an audible signal," which also 

precludes entering a summary judgment in his favor. See Kendrick v. 

City of Midfield, 203 So. 3d 1200, 1206 (Ala. 2016) (holding that existence 

of a genuine issue of material fact as to whether officer used siren 
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precluded entering a summary judgment in favor of officer on peaceofficer-immunity grounds).

Thomas also argued that § 32-5A-4, Ala. Code 1975, generally 

exempted him from having to comply with the pedestrian statutes. That 

statute provides that "[n]o person shall willfully fail or refuse to comply 

with any lawful order or direction of any police officer or fireman invested 

by law with authority to direct, control or regulate traffic." That statute, 

however, regulates the conduct of members of the public who interact 

with peace officers; it does not appear to give officers extra authority to 

act contrary to otherwise applicable traffic laws, and Thomas made no 

specific arguments explaining why that statute exempted him from 

having to comply with the pedestrian statutes. 

At oral argument, Thomas proffered several new arguments as to 

why his conduct was not controlled by the pedestrian statutes. For 

example, Thomas contended that he was not a "pedestrian" within the 

meaning of the pedestrian statutes. As noted earlier, § 32-1-1.1(43)

defines a pedestrian as "[a]ny individual afoot." Thomas noted, however, 

that § 32-1-1.1 also provides that the definitions in that statute will not 

apply "when the context otherwise requires" and contended that, in the 
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context of this case, he was not a "pedestrian" under the pedestrian 

statutes. Because this argument was not made below, we may not now 

consider it. See, e.g., Ex parte Volvo Trucks N. Am., Inc., 954 So. 2d 583, 

587 (Ala. 2006) (quoting State v. Reynolds, 887 So. 2d 848, 851-52 (Ala. 

2004)) ("It is well settled that we 'will not ... issue a writ of mandamus 

commanding a trial judge to rescind an order, based upon a ground 

asserted in the petition for the writ of mandamus that was not asserted 

to the trial judge, regardless of the merits of a petitioner's position in the 

underlying controversy. '").

Thomas also invoked the predicate-act canon of statutory 

construction by asserting for the first time at oral argument that certain 

statutes granting general law-enforcement powers to State troopers --

see, e.g., Ala. Code 1975, §§ 32-2-22 and 32-5-310 -- implicitly authorized 

his conduct, notwithstanding the prohibitions of the pedestrian statues. 

Under the predicate-act canon, whenever a power is given by a statute, 

everything reasonably necessary to effectuate that power is also granted. 

See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation 

of Legal Texts 192 (Thomson/West 2012). Again, because this argument 
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was not raised before the trial court, we may not consider it. Volvo 

Trucks, 954 So. 2d at 587. 

Conclusion

In short, based solely on the arguments and evidence presented to 

the trial court, Thomas has not established a clear legal right to an order 

granting his motion for a summary judgment based on State-agent 

immunity. Therefore, Thomas's petition for the writ of mandamus must 

be denied. In denying the petition, we do not address arguments that 

were not specifically presented to the trial court.

PETITION DENIED.

Parker, C.J., and Wise, Stewart, and Mitchell, JJ., concur. 

Shaw and Cook, JJ., concur in the result, with opinions.

Bryan, J., concurs in the result. 

Sellers, J., dissents, with opinion, which Mendheim, J., joins. 
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SHAW, Justice (concurring in the result).

I am not convinced that the petitioner, State Trooper Lester Lee 

Thomas, is not immune from suit. Specifically, I do not believe that a 

driver subject to a lawful stop by a law-enforcement officer on foot has 

the right-of-way over that officer. My rationale for that conclusion, 

however, is not raised in the petition; thus, the petition cannot be granted 

on that ground. I therefore reluctantly concur in the result. 

This Court's formulation of State-agent immunity provides, among 

other things, that law-enforcement officers like Thomas are entitled to 

immunity from tort claims when those claims are based upon those lawenforcement officers' "'exercising judgment in the enforcement of the 

criminal laws of the State, including, but not limited to, ... 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.'" Hollis v. City of Brighton, 950 So. 2d 300, 309 

(Ala. 2006) (quoting and modifying restatement of State-agent immunity 

set forth in Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (plurality 

opinion; see note 2, supra)) (emphasis omitted). Clearly, Thomas, in 
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attempting to effectuate a stop of one who was speeding, was exercising 

judgment in the enforcement of the laws.

A State agent is not immune "when the State agent acts willfully, 

maliciously, fraudulently, in bad faith, beyond his or her authority, or 

under a mistaken interpretation of the law." Cranman, 792 So. 2d at 405 

(emphasis added). The allegation that Thomas was acting negligently or 

wantonly does not demonstrate that he acted beyond his authority: 

"[N]egligent or wanton conduct will not support the conclusion that a 

police officer has acted beyond his or her authority when he or she is 

exercising discretion in the discharge of his or her law-enforcement 

duties." Ex parte City of Montgomery, 272 So. 3d 155, 168 (Ala. 2018). 

However, it is argued in this case that a violation of the law shows 

an act "beyond [one's] authority." Specifically, the plaintiff below, 

Jennifer Dell Peach, argues that Thomas violated Alabama's Rules of the 

Road, see § 32-5A-1 et seq., Ala. Code 1975 -- namely, certain Code 

sections regulating the conduct of pedestrians. Section 32-5A-212(a), 

Ala. Code 1975, provides: "Every pedestrian crossing a roadway at any 

point other than within a marked crosswalk or within an unmarked 

crosswalk at an intersection shall yield the right-of-way to all vehicles 
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upon the roadway." (Emphasis added.) This Code section appears 

inapplicable; the facts do not suggest that Thomas was attempting to 

"cross" the road. Section § 32-5A-215(b), Ala. Code 1975, provides: 

"Where a sidewalk is not available, any pedestrian walking along and 

upon a highway shall walk only on a shoulder, as far as practicable from 

the edge of the roadway." (Emphasis added.) This Code section appears 

inapplicable; the facts do not suggest that Thomas was "walking along 

and upon a highway" in such a manner that he should have used a 

sidewalk or walked on the shoulder. Instead, he was, according to Peach, 

standing in the lane attempting to stop traffic. 

Peach further contends that Thomas violated § 32-5A-215(d), which 

provides: "Except as otherwise provided in [the Alabama Rules of the 

Road Act], any pedestrian upon a roadway shall yield the right-of-way to 

all vehicles upon the roadway." This Code section is more troublesome. 

The ultimate issue, in my view, hinges on whether Thomas was a 

pedestrian and whether he was required to "yield the right-of-way" to a 

driver he was stopping because of a criminal violation. 
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Former § 32-1-1.1(41), Ala. Code 1975, the applicable Code section 

that existed in 2016 (the Code section has since been amended; see note 

4 and accompanying text, supra), stated:

"The following words and phrases when used in this title 

shall, for the purpose of this title, have meanings respectively 

ascribed to them in this section, except when the context 

otherwise requires:

"....

"(41) Pedestrian. Any person afoot."

(Emphasis added.) See also Pruitt v. Oliver, 331 So. 3d 99, 111 (Ala. 

2021) ("The definition of 'pedestrian' in the applicable Alabama Code 

section is '[a]ny person afoot.'"). 

Thomas was "afoot"; he was standing upon the road as opposed to 

occupying a vehicle. I am not convinced, however, that the "context" of 

this case requires the legal conclusion that he was a pedestrian.5

Under § 15-5-30, Ala. Code 1975, "any highway patrolman or state 

trooper may stop any person abroad in a public place whom he reasonably 

suspects is committing, has committed or is about to commit a ... public 

5Thomas stated in his deposition, when questioned, that he was a 

pedestrian, but it does not appear that he was conceding the legal point 

in relation to § 32-1-1.1. 
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offense." This includes stopping a traveling vehicle. Manning v. State, 

612 So. 2d 1262, 1264 (Ala. Crim. App. 1992); see also White v. State, 479 

So. 2d 1368, 1375 (Ala. Crim. App. 1985) (holding that "a public roadway 

is a public place within the meaning of § 15-5-30"). Section 32-5A-4, Ala. 

Code 1975, provides that drivers must obey orders from law-enforcement 

officers directing or controlling traffic. Drivers may even violate certain 

Rules of the Road at the direction of law-enforcement officers. § 32-5A137, Ala. Code 1975. Thomas had the lawful authority to stop the second 

speeding vehicle; the driver of the vehicle had a duty to comply. In 

allegedly stepping into the road to effectuate that stop, Thomas was 

exercising judgment in the enforcement of the criminal laws regarding 

speeding. 

However, Thomas was not one simply "afoot" while traveling on, 

near, or across a road. He was not using the road on foot as opposed to 

using the road while driving a vehicle. He was not merely present upon 

the road. The context of the pedestrian statutes involves the regulation 

of vehicles and those on foot in the normal course of traffic interaction. I 

find it difficult to conclude that the context of the pedestrian statutes 

includes regulating the manner in which law-enforcement officers, on 
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foot, enforce traffic laws or otherwise stop persons committing public 

offenses, the authority for which is specifically provided by law. The 

legislature, in specifying that the meaning of the term "pedestrian" may 

change depending on the context, clearly indicated that its definition of 

the term is not always applicable; the definition provided by § 32-1-1.1 

does not always control. 

Further, § 32-5A-215(d) provides that pedestrians "shall yield the 

right-of-way to all vehicles upon the roadway." "Right-of-way" was 

defined in former § 32-1-1.1(54), the applicable Code section that existed 

in 2016, as follows:

"The right of one vehicle or pedestrian to proceed in a lawful 

manner in preference to another vehicle or pedestrian 

approaching under such circumstances of direction, speed, 

and proximity as to give rise to danger of collision unless one 

grants precedence to the other."6

The context of this section is governing the safe movement of 

vehicles verses pedestrians. Again, Thomas was performing a lawful stop 

of a speeder, which he had the power to do; he "may stop any person 

abroad in a public [road] whom he reasonably suspects is committing ... 

6Section 32-1-1.1 was amended in 2021. Although the definition of 

"right-of-way" has not changed, that definition is now located in § 32-1-

1.1(56). 
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[a] public offense," § 15-15-30, and the Rules of the Road require drivers 

to obey his directions. § 32-5A-4. When an officer, on foot, attempts to 

exercise a lawful stop of a vehicle, can it be said that the offending driver 

nevertheless has the "right-of-way" to proceed in preference to the officer? 

Does this section deem that drivers who are, as in this case, speeding or 

who are, possibly in other situations, driving while intoxicated or fleeing 

arrest have the right-of-way to proceed in the face of an officer on foot 

attempting to perform a lawful stop? Do the Rules of the Road give 

"preference" to violators of those rules over those who are enforcing them 

against those violators? 

The idea that an officer on foot attempting to control traffic or to 

effectuate the stop of a criminal suspect driving a vehicle must yield the 

right-of-way to that suspect is troubling. In contrast, drivers must yield 

the right-of-way to pedestrian highway road workers and garbage 

collectors. § 32-5A-116(a) and § 32-5A-58.3(a), Ala. Code 1975. But 

apparently there is no specific Code section affording law-enforcement 

officers who happen to be on foot in the road the right-of-way when 

stopping criminal suspects. Either this is a serious gap in the law or the 

legislature thought, given the "context," no such special provisions were 
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required. I believe it is the latter: the context of Thomas's actions shows 

that the meaning of the terms "pedestrian" and "right-of-way" as defined 

in § 32-1-1.1 do not apply in this case. Thomas was not violating the 

Rules of the Road. 

The above analysis is not advanced in the petition, and so it cannot 

form a basis to issue the writ. Ex parte Wilcox Cnty. Bd. of Educ., [Ms. 

1200775, June 10, 2022] ___ So. 3d ___, ___ n.9 (Ala. 2022) (refusing to

consider an issue not raised in a petition for a writ of mandamus). 

Although Thomas's motion for a summary judgment and various followup filings questioned whether he should be considered a pedestrian, the 

issue whether he fit the statutory definition of "pedestrian" was not 

submitted to the trial court. State v. Reynolds, 887 So. 2d 848, 851-52 

(Ala. 2004) (holding that this Court will not issue a writ of mandamus 

based upon a ground that was not asserted to the trial court). I therefore 

concur in the result. This issue must await further litigation in the trial 

court or on appeal. 
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COOK, Justice (concurring in the result).

Like Justice Shaw, I reluctantly concur in the result. As explained 

in the main opinion, the key issue in this case is whether there is 

sufficient evidence for a jury to conclude that State Trooper Lester Lee 

Thomas violated Alabama law when he allegedly blocked both 

northbound lanes of Interstate 65 to perform traffic stops of two speeding 

drivers. Trooper Thomas contends that he was entitled to State-agent 

immunity for his discretionary actions as a peace officer. Plaintiff 

Jennifer Dell Peach argues, however, that Trooper Thomas was not 

entitled to State-agent immunity because he became a "pedestrian" when 

he exited his vehicle and was, therefore, subject to Alabama's Rules of 

the Road, see § 32-5A-1 et seq., Ala. Code 1975. Specifically, she argued 

that Trooper Thomas "could not have been 'exercising judgment in the 

enforcement of the criminal laws of the State' because he violated three 

statutes found in the Rules of the Road that 'remove[d] the discretion on 

which the immunity is based'" -- §§ 32-5A-212(a), 32-5A-215(b), and 32-

5A-215(d), Ala. Code 1975 ("the pedestrian statutes"). 

In 2016, the applicable definition of "pedestrian" was "[a]ny person 

afoot." Former § 32-1-1.1(41), Ala. Code 1975 (see note 4 and 
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accompanying text, supra). First, Peach argues that §§ 32-5A-212(a) and 

32-5A-215(d)7 required Trooper Thomas, as a pedestrian, to "yield" to the 

right-of-way to the oncoming traffic, including the speeding vehicle at 

issue, on Interstate 65 rather than stepping into the middle of the left 

lane to stop the alleged second speeder.8

As I see it, the problem with applying these two "shall yield" 

statutes to Trooper Thomas is that doing so ignores a more specific 

statute applicable to law-enforcement officers in Alabama -- § 32-5A-4, 

Ala. Code 1975. That statute provides that "[n]o person shall willfully fail 

or refuse to comply with any lawful order or direction of any police officer 

... invested by law with authority to direct, control or regulate traffic" 

(emphasis added), meaning that everyone must yield to the lawenforcement officer. The speeder must yield to the State trooper -- not 

7Section 32-5A-212(a) requires that pedestrians "shall yield the 

right-of-way to all vehicles upon the roadway." (Emphasis added.) 

Likewise, § 32-5A-215(d) requires that "any pedestrian upon a roadway 

shall yield the right-of-way to all vehicles upon the roadway." (Emphasis 

added.) 

8I note briefly that the evidence is disputed as to whether, and how 

far, Trooper Thomas stepped into the left-hand lane. For the purposes of 

summary judgment, however, we must view the evidence in the light 

most favorable to the nonmovant. 
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the other way around. The main opinion dismisses the applicability of 

this statute because it is directed to the public and not peace officers. 

This is a mistake in logic. If the public must "comply" with a police 

officer's "lawful order," then, in the case of a traffic stop, the officer is not 

the one who must "yield" the right-of-way; it is the speeder who must 

yield the right-of-way. The specific statute governing the public's 

adherence to lawful orders from police officers necessarily must govern 

over the general pedestrian statutes. See Ex parte Jones Mfg. Co., 589 

So. 2d 208, 211 (Ala. 1991) (noting that, "[i]n the event of a conflict 

between two statutes, a specific statute relating to a specific subject is 

regarded as an exception to, and will prevail over, a general statute 

relating to a broad subject"). 

However, I come to a different conclusion as to the claim that 

Trooper Thomas violated § 32-5A-215(b). The most significant arguments 

asserted by Trooper Thomas as to this claim were made for the first time 

at oral argument.9 Specifically, he argued that he was not a "pedestrian" 

9Thomas also argues that § 32-5A-7, Ala. Code 1975, provides an 

exception to the pedestrian statutes. This statute provides exemptions 

from following certain Rules of the Road to emergency vehicles under 

certain circumstances. However, as the main opinion correctly notes, it 
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as that term is defined in § 32-1-1.1 because, he said, that statute states 

that the definitions therein do not apply "when the context otherwise 

requires." Trooper Thomas also claimed for the first time at oral 

argument that two statutes dealing with the general police powers 

granted to Alabama's State troopers -- Ala. Code 1975, §§ 32-2-2210 and 

32-5-31011 -- authorized (or at least implicitly authorized) his conduct and 

thus constitute specific exceptions to the Rules of the Road. Neither of 

these statutes are even mentioned in Trooper Thomas's mandamus 

petition or his reply brief. 

As the main opinion correctly notes, because these arguments were 

not raised until oral argument, we may not consider them at this point.

There are good reasons that, normally, entirely new arguments 

does not mention the pedestrian statutes, and there is also a factual 

dispute over one of the preconditions for that statute's application.

10Section 32-2-22 provides: "Members of the state highway patrol, 

when duly appointed, shall have the powers of peace officers in this state

and may exercise such powers anywhere within the state." 

11Section 32-5-310 provides: "Any peace officer, including state 

troopers, ... shall be authorized, and it is hereby made the duty of each 

of them to enforce the provisions of this chapter and to make arrests for 

any violation or violations thereof ...."
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introduced during oral argument should not be considered. These reasons 

are even stronger in the mandamus context, when additional 

development of those arguments is still possible later at the trial-court 

level and before this Court (as opposed on appeal from a final judgment 

at the end of the case). It is also true that fundamental fairness requires 

that the opposing party not be surprised at oral argument and, thus, 

deprived of the opportunity to research and respond to entirely new 

arguments being made. Given that this case is before this Court on a 

mandamus petition -- in which the petitioner bears of burden of showing 

a "clear" right to the relief sought -- this Court should not consider these 

entirely new arguments in these particular circumstances.

Although I do not agree with how the main opinion reached the 

ultimate result in this case, I nevertheless agree that Trooper Thomas's 

mandamus petition is due to be denied and, thus, concur in the result. 
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SELLERS, Justice (dissenting).

I respectfully dissent. Lester Lee Thomas, a State trooper with the 

Alabama Law Enforcement Agency, has petitioned this Court for a writ 

of mandamus directing the trial court to enter a summary judgment in 

his favor based on peace-officer immunity pursuant to § 6-5-338(a), Ala. 

Code 1975, and the restatement of State-agent immunity set forth in Ex 

parte Cranman, 792 So. 2d 392 (Ala. 2002) (plurality opinion; see note 2, 

supra), as modified in Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 

2006). It is undisputed that, at the time of the accident giving rise to this 

litigation, Thomas was performing a law-enforcement duty for which 

State-agent immunity would be available. Therefore, the burden shifted 

to the plaintiff, Jennifer Dell Peach, to demonstrate that one of the two 

categories of exceptions to State-agent immunity recognized in Cranman

is applicable. As the main opinion points out, one such exception is when 

a State agent acts beyond his or her authority by violating a statute that 

imposes a mandatory duty upon the State agent; this is so because such 

a statute removes the discretion upon which the immunity is based. 

Odom v. Helms, 314 So. 3d 220, 229 (Ala. 2020). Peach contends that 

Thomas acted beyond his authority by allegedly violating the Alabama 
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Rules of the Road Act ("the Act"), § 32-5A-1 et seq., Ala. Code 1975, 

specifically those statutes regarding a pedestrian's use of roadways. See 

§ 32-5A-212(a), Ala. Code 1975 (A pedestrian crossing a roadway "shall 

yield the right-of-way to all vehicles upon the roadway."); § 32-5A-215(b), 

Ala. Code 1975 (A pedestrian "shall walk only on a shoulder" of a 

roadway.); and § 32-5A-215(d), Ala. Code 1975 (A pedestrian "upon a 

roadway shall yield the right-of-way to all vehicles upon the roadway."). 

However, Peach has offered no authority to indicate that those specific 

statutes are applicable to the facts presented. In fact, it appears that the 

statutes upon which Peach relies relate merely to a pedestrian's duty to 

use reasonable care for his or her own safety and, thus, bear no relation 

to a law-enforcement officer's attempting to enforce the traffic laws of the 

State. I point out that other statutes under the Act include qualifying 

language regarding police officers, further indicating that the Act, when 

read as a whole, operates to regulate the actions of pedestrians, and not 

to constrain the actions of police officers. See, e.g., § 32-5A-4, Ala. Code 

1975 ("No person shall willfully fail or refuse to comply with any lawful 

order or direction of any police officer ... with authority to direct, control 

or regulate traffic."); § 32-5A-31(a), Ala. Code 1975 ("The driver of any 
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vehicle shall obey the instructions of any official traffic-control device ... 

unless otherwise directed by a police officer ...."); and § 32-5A-137(a), Ala. 

Code 1975 (prohibiting stopping, standing, or parking in specified places, 

"[e]xcept when necessary to avoid conflict with other traffic, or in 

compliance with law or the directions of a police officer ...."). Based on 

the foregoing, I conclude that Peach has failed to meet her burden of 

presenting substantial evidence to show that Thomas acted beyond his 

authority by violating any statute designed to regulate his actions in 

stopping speeding motorists. I also conclude that Peach has presented 

no substantial evidence indicating that Thomas acted willfully, 

maliciously, fraudulently, or in bad faith in attempting to stop the 

speeding motorists. Accordingly, I would issue the writ of mandamus 

directing the trial court to enter a summary judgment in favor of Thomas 

on the basis of State-agent immunity. 

Mendheim, J., concurs.