* Honorable Robert B. Propst, Senior U.S. Distri ct Judge for the Northern District of Alabama, sitting by designation. United States Court of Appeals, Eleventh Circuit. Nos. 97-6063, 97-6064. Sulata Umed SHETH, Plaintiff-Appellant,

v. Jimmie WEBSTER, Officer, Defendant-Appellee. Sulata Umed SHETH, Plaintiff-Appellee,

v. Michael Tyrone WILLIAMS, Sergeant, Defendant-Appellant. April 2, 1998. Appeals from the United States Di strict Court for the Southern District of Alabama. (No. 96-0041- CB-C), Charles R. Butler, Jr., Judge. Before TJOFLAT and BARKETT, Circuit Judges, and PROPST * , Senior District Judge.
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' moti ons 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 deni ed 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.1 The "facts" are stated most favorably to the plai ntiff and may or may not be the actual facts.

2 The trial court found that Sergeant Williams was dispatched pursuant to the called in request of a motel employee. 2 I. FACTS 1 This case arose out of a dispute on Octobe r 28, 1994 between the plaintiff-appellee Sulata Armed Sheth (plaintiff) and Avon Williams. Avon Williams ha d 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, A von 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 afte r 7:30 a.m., Webster arrived at the motel pursuant to a dispatch call which suggested a dispute at th e 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." After plaintiff arrived at the scene, Avon W illiams again demanded a refund. Webster again arrived, pursuant to another dispatch call. We w ill not repeat all the alleged discussions which took place. During the course of the discussions, We bster became angry at plaintiff and arrested her, placing a handcuff on one wrist and pulling her toward his police car. Plain tiff 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 th at plaintiff was resisting arrest. Sergeant Williams then assisted Webster in furthe r cuffing plaintiff and placing her in the police car.3 Plaintiff also makes claims against the City of Mobile. No issues directly related to that party are before this court. 3 Plaintiff repeatedly requested that Webster and Williams allow her to go to the bathroom. They, after what plaintiff says was thirty minutes, a llowed her to go to the bathroom with a female housekeeper for the motel, but did not remove her handcuffs. Plaintiff wa s 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 Sergean t 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 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 th e consideration of motions for summary judgment. The district court appropriately recited them. Our review is de novo. The district court granted both defendants-a ppellants' motions for summary judgment on the merits as to the plaintiff's claim of outrage. With rega rd to the plaintiff's claims of assault and4 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 willf ully, maliciously and in bad faith. The district court denied both the defendants-appellants' motions w ith 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 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 la w claims against him. The following issues are presented for appeal: (1) Does this court have ju risdiction to consider Webs ter'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 discretionary5 function immunity under Alabama law? (4) Ar e 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 f acts 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This is not a case such as is addressed in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) where the court "resolved afact -related dispute." Id. at 307, 115 S.Ct. at 2153. In Johnson, the defendants contended that "we didn't do it." Id. at 308, 115 S.Ct. at 2154. The issues appealed here concern "not which facts the parties might be able to pr ove, but, rather, whether or not certain given facts showed a violation of "clearly established' law". Id. at 311, 115 S.Ct. at 2155, 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, 115 S.Ct. at 2156, 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 , 132 F.3d 1395, 1397 (11th Cir.1998). See also Foy v. Holston, 94 F.3d 1528 (11th Cir.1996). 2. Discretionary Function Immunity6 The issue of whether interlocutory appeals can be taken from the denial of "discretionary function" immunity under Alabama law is one of fi rst 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 stat e 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 Alab ama 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 Legislature adopted § 6-5-338(a), Code of Alabama 1975. This pr ovision 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, whethe r appointed or employed as such peace officer by the state or a county or muni cipality thereof, or by an agen cy 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 poli ce officers or other peace officers, and whose duties prescribed by law, or by the lawful te rms of their employment or appointment, include the enforcement of, or the investigation and re porting 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 violati ons of, the criminal laws of this state, shall at all times be deemed to be officers of this st ate, and as such shall have immunity from tort liability arising out of his or her conduct in pe rformance of any discretionary function within the line and scope of his or her law enforcement duties.7 In initially determining whether this court has appellate jurisdiction over the denial of immunity from state law claims, we are gui ded 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 juri sdiction 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 independe nt of the 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 id entified 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 immunityfor 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 stat e 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 prope rly 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. See8 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 th is is not a "sovereign" immunity

case, Tinneyis 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 func tion within the line and scope of his or her law enforcement duties." § 6-5-338(a), Code of Al abama 1975. The Alabama legislature enveloped municipal peace officers under the same cloak of i mmunity 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 immunityfrom suit rather than simply a defense to substantive liability." 963 F.2d at 340. In Taylor v. Shoemaker, involving state law claims ag ainst state officers, who were not constitutional officers, in their individual capac ities, 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. 605 So.2d at 832. The court further stated "to permit such suits as this would, without question, affect those officials in th e exercise of their discretion." (emphasis added) Id. 605 So.2d at 832. The court concluded, "Therefo re, discretionary function immunity should be afforded to these defendants...." Id. 605 So.2d at 833. The court affirmed a summary judgment dismissal of the claims against the individual defendants. Id. See also Ex Parte City of Birmingham, 624 So.2d 1018 (Ala.1993) and Marnon v. City of Dothan, 677 So.2d 755 (Ala.Civ.App.1995). In both of the latter cases, the court referred to "qualif ied or discretionary immunity" as if "qualified"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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) and Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

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. 9 and "discretionary function" immunity are one and th e same ("Thus as a general rule, city officials

are immune from suit unless they violate clearly established law"). Ex Parte City of Birmingham, 624 So.2d at 1021 and Marnon, 677 So.2d 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 outof a discretionary or non-ministerial act, in order to avail himself of qualified immunity from suit (emphasis added). Pursuant to § 6-5-338(a), Webster and Sergeant Williams, as municipal police officers, are entitled to the same discretionary function immunity as ar e 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 have10 jurisdiction to review the denial of discreti onary function immunity provided for under Alabama law. B. Entitlement to Immunity 1. Qualified Immunity We affirm the denial of qualified immunityto Webster on plaintif f's false arrest and excessive force claims. The district court correctlyconcluded 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 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 c ould have believed that probable cause existed to arrest plaintiff. When plainti ff 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 dra gged 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.6 The district court found that the plaintiff con ceded that the defendants acted within the scope of their discretionary authority. 11 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. "A cts of such nature are not considered by Alabama law to be discretionary." Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996). Disc retionary acts have been defined as "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. 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 th at 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 aforementioned7 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, 516 U.S. 299, 312-14, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996). 12 force against the plaintiff. Officer Webster and the plaintiff were standing beside officer Webster's police car, and when Sergeant W illiams approached them, Officer Webster allegedly informed Sergeant Williams that the pl aintiff 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. For the same reasons earlier discusse d, 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 violat ed 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 discre tionary function immunity as to Webster. There is an issue of fact as to whether he acted malicious ly, willfully or in bad faithwith regard to the very acts leading to assault and battery, fa lse arrest and malicious prosecution. 7 We reverse the court's ruling denying discretionary function immunity to Sergeant Williams. Cf. Gold v. City of Miami,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. 13 121 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 Williams' entitlement 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.