Hurbert, etc. v. Green, et al., [Ms. SC-2024-0589, Sept. 5, 2025] __ So. 3d __ (Ala. 2025). In a plurality per curiam opinion, the Court (Stewart, C.J., and Mendheim, Cook, and McCool, JJ., concur; Shaw and Bryan, JJ., concur in the result; Wise and Lewis, JJ., concur in the result; Sellers, J., dissents) reverses the Jefferson Circuit Court’s summary judgment dismissing negligence and wantonness claims against the City of Birmingham and Birmingham Police Department patrol officer Stephon Green (“Officer Green”) on the ground of statutory stand-your-ground immunity under § 13A-3-23(d), Ala. Code 1975.
Arethea Hurbert was transported by Officer Green to UAB when she began to act erratically while incarcerated at the Birmingham jail. At UAB, Hurbert was placed on a gurney and her limbs were restrained. After Officer Green removed the restraints from one of her arms so that a UAB staff member could administer an IV, Hurbert threw a shoe at Officer Green and allegedly slapped him. “Officer Green [then] punched Hurbert two or three times in the face and Hurbert sustained serious injuries, including a broken orbital socket.” Ms. *2.
Officer Green was prosecuted for second-degree assault. The criminal court conducted a pre-trial evidentiary hearing and ruled that Green was entitled to stand-your-ground immunity from criminal prosecution. The circuit court’s order granting Officer Porter’s motion for summary judgment reasoned that “the [criminal court’s] ‘Order Granting Defendant’s Motion for Immunity From Prosecution’ by itself meets [Officer] Green’s burden of proof for receiving civil stand-your-ground immunity.” Ms. *13.
In reversing, the main opinion holds the trial court erred in failing to apply the correct standard in adjudicating the motion for summary judgment:
The criminal court, applying the “preponderance of the evidence” standard, as required by § 13A-3-23(d), determined, based on the evidence before it, that it was more likely than not that Officer Green’s conduct satisfied the elements of a stand-your-ground defense. That was a decision based upon weighing the facts and determining credibility – something that the criminal court was authorized to do at that stage. In contrast, “[a]t the summary judgment stage, it is not the trial court’s function ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Nix v. Franklin Cnty. Dep’t of Hum. Res., 234 So. 3d 450, 456 (Ala. 2017) ... Furthermore, “[a] court may not determine the credibility of witnesses on a motion for summary judgment.” Wilson v. Teng, 786 So. 2d 485, 498 (Ala. 2000)... In concluding that the criminal court’s judgment created a presumption that Officer Green had acted in self-defense, the trial court impermissibly gave both weight and credibility to the criminal court’s judgment and the facts underlying it. Further, the trial court appears to have precluded consideration of certain evidence presented by Hurbert, and, in doing so, the trial court also applied some higher, undefined evidentiary standard against Hurbert.
Ms. **35-36, some internal quotation marks and citations omitted.