author: MAIN, Justice. WISE, Justice MURDOCK, Justice SHAW, Justice

text:
    Ex parte Luther Stancel PATE IV. (In re Luther Stancel Pate IV v. City of Tuscaloosa).
    1111448.
    Supreme Court of Alabama.
    July 3, 2013.

      Mary Virginia Buck, Northport; and Joel L. Sogol, Tuscaloosa, for petitioner.
    Kristen L. Love, asst, city atty., Tuscaloosa, for respondent.
    James W. Porter II of Porter, Porter & Hassinger, P.C., Birmingham; James W. Porter III of Haskell Slaughter Young & Rediker, LLC, Washington, DC; and Robert Dowlut, Fairfax, VA, as “of counsel” for amicus curiae NRA Civil Rights Defense Fund, in support of the petitioner.
   MAIN, Justice.

Luther Stancel Pate IV petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals, affirming Pate’s conviction for menacing. We granted Pate’s petition to consider, as questions of first impression, whether lawfully arming oneself is a “physical action” so as to fulfill an element of Alabama’s menacing statute, see § 13A-6-23(a), Ala.Code 1975, and whether the defense-of-premises statute, see § 13A-3-25, Ala.Code 1975, is applicable in this case. The Court of Criminal Appeals, in its unpublished memorandum, held that there was sufficient evidence of the “physical-action” element of menacing to present the question to the fact-finder. The Court of Criminal Appeals also held that Pate’s conduct was not excused by the defense-of-premises statute. Pate v. City of Tuscaloosa (No. CR-10-0843, June 22, 2012), 144 So.3d 519 (Ala.Crim.App.2012) (table). For the reasons discussed below, we reverse and remand.

I. Factual Background and Procedural History

Pate leased a building he owned in Tuscaloosa to the owner of a restaurant called the Santa Fe Cattle Company (“Santa Fe”). The lease for Santa Fe was terminated for nonpayment of rent, and its parent company subsequently declared bankruptcy. Santa Fe closed on or around September 27, 2009. Santa Fe had been ordered to vacate the premises by September 29, 2009, but on September 30, 2009, Pate was alerted by one of his associates that Santa Fe employees were trespassing on the property. Pate directed his associate to contact the police.

On September 30, Walter Bryan Hart, Reneta Lawless, and Joseph Thompson, all Santa Fe employees, were at the building leased from Pate. They had been instructed by their supervisors to oversee the removal of leased restaurant equipment that remained inside Pate’s building and also to clean the building in preparation for turning it over to Pate. One of Pate’s associates, Chris Dobbs, followed by several police officers, arrived at the property while Hart, Lawless, and Thompson were there. After Hart and others discussed their presence in the building with the police, the police determined that it was a civil matter and they were not going to get involved.

Shortly thereafter, Pate arrived at the building and ordered everyone to leave the premises. According to Hart and Thompson, when the police officers, who were still on the premises, seemed reluctant to get involved, Pate told them that if they were unable to prevent these people from trespassing on his property, he had a shotgun in his truck and he could get rid of the trespassers himself. At some point, the police did ask Hart and the other Santa Fe employees to leave the premises. Everyone initially obliged and left, but Hart reentered the premises for the purpose of, according to his testimony, retrieving his personal laptop computer. Pate, who had walked to the back of the premises to assess the damage to the premises after Hart and the others had initially left, returned to the front area where he saw Hart, once again, inside the premises.

According to Hart, Pate yelled at him and told him to get out of the building or he was going to “stomp [Hart’s] a * Hart said that Pate continued yelling at him as he walked outside. Hart testified that he went straight to his car, got in, and looked up to see Pate standing in front of his car pointing a shotgun at him and telling him to get off his property. Hart indicated that he left as quickly as possible because he was afraid Pate was going to hurt him physically.

Pate’s version was that, when he returned to the front of the building and noticed Hart, he sent Dobbs to summon the police, who were still in another part of the building. Pate said that he ordered Hart, once again, to leave his property. Pate testified that Hart began to argue with him and then turned and proceeded toward his vehicle with Pate following behind him. As Hart walked toward his vehicle, Pate said that he went to his truck to retrieve his shotgun. Although Hart testified that Pate aimed the gun at him, Pate denied ever pointing the gun at Hart and stated that he only motioned with a pointing finger for Hart who was in his car, to leave the premises while Pate was holding the gun pointed down toward the ground.

Thompson testified, in pertinent part, that he, Lawless, and Hart left the restaurant as Pate and the officers requested, but after they left Hart told Thompson and Lawless that he was going back inside to get his laptop. Then, according to Thompson, as he and Lawless walked to their vehicle, Hart walked back toward the restaurant and yelled for the officers to get his computer. When Hart walked out of the restaurant the second time, Thompson saw Pate go to his truck and get a shotgun out of his truck. Thompson testified that Pate held the gun in an upright position and pointed his finger at Lawless and Thompson, motioning for them to leave the property. According to Thompson, as Lawless started the vehicle, Pate directed his attention to Hart. Thompson stated that Pate lowered the gun to his side when the police came out of the building into the parking lot.

According to Officer R.B. Phillips of the Tuscaloosa Police Department, one of the officers who responded to the call made by Pate’s employee, Pate was very angry and agitated when he arrived at the restaurant. Officer Phillips stated that Pate was yelling and saying that he wanted everybody out of the building. Officer Phillips testified that Pate indicated that he had a gun in his truck and that if the police could not get everybody out that he would “take care” of it. Officer Phillips testified that he never saw Pate point the shotgun anywhere but toward the ground. Officer Phillips said that he eventually took the shotgun from Pate. Tuscaloosa Police Officer Jeremy Todd testified that Pate stated that if the police could not get Hart and the others out of his building that he would get his gun from his truck and take care of the situation himself. Officer Todd also stated that when he saw Pate the shotgun was angled toward the ground.

Pate was charged with and convicted in the Tuscaloosa Municipal Court of menacing, a violation of Tuscaloosa City Ordinance § 17-1 and § 13A-6-23, Ala.Code 1975. Pate appealed to the Tuscaloosa Circuit Court for a trial de novo. After a bench trial, Pate was again convicted of menacing. The trial court stated:

“THE COURT: But I assume that the hunter’s position is that you did not — it was not pointed. So there’s some dispute regarding whether or not you actually pointed it at Mr. Hart. However, the statute states that if you intentionally place or attempt to place another person in fear of imminent serious physical injury by a physical action that that still amounts to the crime of menacing. By your testimony, by getting the gun and by your testimony to the effect that he was getting away rapidly because he was scared based upon you getting the gun, that would be physical action which the Court is of the opinion would amount to the crime of menacing.
“And so for that reason, the Court finds you guilty of the crime of menacing.”

(Emphasis added.)

The trial court sentenced Pate to 60 days in the municipal jail but suspended the sentence and placed Pate on probation for one year. The trial court also ordered Pate to pay fines and other fees. Pate appealed to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed the conviction, without an opinion. Pate v. City of Tuscaloosa (No. CR-10-0843, June 22, 2012), 144 So.3d 519 (Ala.Crim.App.2012) (table). This Court granted certio-rari review.

II. Analysis

Although this Court recognizes that this case involves the interplay of Alabama’s menacing statute, § 13A-6-23(a), Ala.Code 1975, and a property owner’s right to defend his premises from a trespasser under § 13A-3-25, Ala.Code 1975, we need not reach both of these issues to resolve this matter. Because of our construction of the menacing statute, we pretermit consideration of the defense-of-premises issue. Pate argued below, as he does on certiora-ri review, that the trial court should have granted his motion for a judgment of acquittal because, he argues, merely arming himself, without any accompanying action, is not a “physical action” that could form the basis of a charge of menacing.

Menacing is defined in § 13A-6-23(a), Ala.Code 1975: “A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.” (Emphasis added.) The Commentary to § 13A-6-23 states that menacing encompasses the situation where “ ‘physical injur/ is neither inflicted nor intended.” There is no statutory definition for the term “physical action.” In this case, the trial court found that getting the gun was sufficient “physical action” to constitute the offense of menacing.

In examining the menacing statute, we must apply the following principles of statutory construction:

“ ‘ “[I]t is well established that criminal statutes should not be ‘extended by construction.’ ” ’ Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983), quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)).
“ ‘A basic rule of review in criminal cases is that criminal statutes are to be strictly construed, in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“‘Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
“‘One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State ], 58 Ala. 358 (1877).
“ ‘No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.’
“Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997)) (emphasis added).
“ ‘ “Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the loords used....” United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952).’
“Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). ‘[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).’ Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (emphasis added). The ‘rule of lenity requires that “ambiguous criminal statute[s] ... be construed in favor of the accused.” ’ Castillo v. United, States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)).”

Ex paiie Bertram, 884 So.2d 889, 891-92 (Ala.2003).

“ ‘Moreover, “one ‘is not to be subjected to a penalty unless the words of the statute plainly impose it,’ Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L.Ed. 790 [ (1905) ]. ‘[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’ United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229-230, 97 L.Ed. 260 [ (1952) ].” United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971).’
“[United States v.] Bridges, 493 F.2d [918] at 923 [ (5th Cir.1974) ].
“ ‘Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning.’ Alabama Farm Bureau Mut. Casualty Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). The general rule of construction for the provisions of the Alabama Criminal Code is found in Ala.Code 1975, § 13A-1-6: ‘All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in section 13A-1-3.’ Among the purposes stated in § 13A-l-[3] is that found in subsection (2): ‘To give fair warning of the nature of the conduct proscribed.’ ”

Carroll v. State, 599 So.2d 1253, 1265 (Ala.Crim.App.1992). In determining the proper application of a statute, this Court has a duty to “ ‘ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.’ ” Hunt v. State, 642 So.2d 999, 1028 (Ala.Crim.App.1993), affd, 642 So.2d 1060 (Ala.1994) (quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985)); see also Rutledge v. State, 745 So.2d 912 (Ala.Crim.App.1999).

Consistent with the foregoing and applying the principles of statutory construction, we conclude that Pate’s getting the gun, without more, was not sufficient to establish the physical-action element of menacing. Therefore, we conclude that the Court of Criminal Appeals erred in determining that there was sufficient evidence of the physical-action element of menacing. In light of our resolution of the first ground on which we granted certiora-ri review — whether getting the gun constituted “physical action” under the facts of this case — we pretermit discussion of the second ground on which we granted certio-rari review — whether the defense-of-premises statute is applicable in this case.

III. Conclusion

For the foregoing reasons, we reverse the judgment of the Court of Criminal Appeals and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART and BOLIN, JJ., concur.

WISE, J., concurs specially.

PARKER, J., concurs in the result.

MURDOCK and SHAW, JJ., dissent.

WISE, Justice

(concurring specially).

I concur with the majority’s conclusion that Luther Stancel Pate’s action of getting a shotgun from his vehicle, without more, did not constitute a “physical action” that would support a conviction for menacing. In footnote 6 of his dissent, Justice Murdock points out that in Hiler v. State, 44 So.3d 535 (Ala.Crim.App.), rev’d on other grounds, 44 So.3d 543 (Ala.2009), a case I authored while serving as the presiding judge on the Alabama Court of Criminal Appeals, the Court of Criminal Appeals found “that there was sufficient evidence to sustain a charge of menacing in light of the context in which the defendant’s physical actions occurred; part of the context considered relevant by the Court of Criminal Appeals was the defendant’s oral representation that the device was a bomb.” 145 So.3d at 742 n. 6. I write simply to explain why I believe Hiler is factually distinguishable from the present case.

In Hiler, Hiler had been staying at the residence of his ex-wife, Michelle Noble, and her then husband, Greg Noble. The evidence indicated that, on the day of the incident, Hiler and Michelle had argued and that law-enforcement officers had been called to the residence. Deputy Mike Hill of the Franklin County Sheriffs Department testified that he went to the Noble residence; that, when he arrived, Hiler was sitting on a chair at an outbuilding that was approximately 100 meters from the house; that he went to the residence and talked to the Nobles; and that Michelle told Deputy Hill that Hiler had been under the influence of some type of drug that morning and that she wanted Hiler removed from the residence.

Deputy Hill then went back to his patrol vehicle and drove to the outbuilding. When he pulled up, Hiler went inside the outbuilding and later came back out with a device. Hiler then held up the device and showed it to Deputy Hill. Deputy Hill testified that, based on his training, it appeared to him that Hiler was holding some type of explosive device. Also, when he asked Hiler what the device was, Hiler told him it was a bomb. After Deputy Hill left and went back to the residence to telephone his supervisor and dispatch, Hiler began walking toward the Nobles’ residence with the explosive device in his hand. Hiler initially refused to stop when Deputy Hill ordered him to do so, but he then went back to the outbuilding after Deputy Hill drew and pointed his weapon at Hiler.

After other officers arrived at the scene, they attempted to talk to Hiler. At one point, Hiler came out of the outbuilding with the device attached to his waist. He also indicated that he had a mercury switch on the device. Subsequently, Hiler agreed to put the device down after another officer, Jerry Holcomb, agreed to put his gun in his vehicle. After Hiler laid the device down, Officer Holcomb attempted to use a stun gun on Hiler but was not able to do so, and Hiler ran toward the device.

On appeal, Hiler argued that the trial court should have granted his motion for a judgment of acquittal on the menacing charge because, he argued, he did not make any threats of bodily harm or take any physical action toward Deputy Hill, who was the alleged victim of the offense. In addressing this argument, the Court of Criminal Appeals stated:

“Based on the evidence presented, the jury could have reasonably concluded that Hiler took physical action when he showed the device to Hill and told him it was a bomb and when he ran toward the device after Holcomb unsuccessfully attempted to use a stun gun on him. See Oliver v. City of Opelika, 950 So.2d 1229 (Ala.Crim.App.2006) (holding that there was sufficient evidence of physical action where the defendant pointed a gun at an officer).”

44 So.3d at 542.

The present case does not involve a situation where law-enforcement officers were present based on a homeowner’s request to remove Pate from their property. Rather, in this case, Pate was on his own property. Additionally, there was evidence indicating that the employees of the Santa Fe restaurant were trespassers on Pate’s property and that they were removing equipment owned by Pate from the property, even though the time for Santa Fe to vacate the premises had passed. Further, there was evidence indicating that Walter Bryan Hart and the other Santa Fe employees had initially agreed to leave the premises at the request of law-enforcement officers but that Hart later reentered the premises. Pate did not actually retrieve the shotgun from his vehicle until after he came back to the front of the building and saw Hart inside the premises again. Pate then went to his vehicle, retrieved the shotgun, and walked toward Hart’s vehicle. This is vastly different from the physical actions involved in Hiler. Here, it appears that the trial court based its decision solely on the fact that Pate obtained a weapon. However, in Hiler, it was the combination of Hiler’s showing the device to Deputy Hill, telling him it was a bomb, strapping the device to his waist, indicating the device had a mercury switch, and then running toward the device, which he had laid down, after the officer unsuccessfully tried to subdue him with a stun gun, that constituted the physical action in Hiler. Thus, I believe that this case is factually distinguishable from Hiler.

MURDOCK, Justice

(dissenting).

I am reminded that this is but a mere misdemeanor case. Our duty is made no less by this fact. Over the years, some of our most important constitutional rights have been addressed by the United States Supreme Court in misdemeanor cases. Although no fundamental constitutional right is addressed in the present case, important and fundamental principles of Alabama law are at stake. These include the viability of the ore tenus rule and the continued viability of the crime of menacing. And then there is the question of the ability of law enforcement to act confidently and without hesitation, and with all the tools that should be available to them, to secure the scene of any dispute to which they have been summoned, whether civil or criminal, and whether or not on private property.

The statute at issue reads simply as follows:

“A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.”

Ala.Code 1975, § 13A-6-23(a). I see only two elements prescribed by this statute: (1) “physical action” and (2) a mind-set of using that physical action to “intentionally place[ ] or attempt[ ] to place” another in fear of imminent serious physical injury. If the defendant in this case was entitled to a judgment of acquittal, it must be because there was not sufficient evidence in the record to allow the fact-finder to reasonably find the existence of one of these two elements.

As I read the defendant’s brief to this Court and the main opinion, it appears to me that both address only the “physical-action” element. Yet, clearly, there was physical action. The mere winking of an eye constitutes physical action. Even the “mere” act of “getting the gun” in this case entailed walking out of a building to a truck in a parking lot, opening the door of that truck, retrieving from inside that truck a shotgun, and exercising physical control over that shotgun.

But even this “getting the gun” was not “without more.” First, there was “more” purely physical action by the defendant. Second, as discussed in subsequent paragraphs, there was “more” in the form of the defendant’s demeanor and verbal threats that provided the context for the fact-finder to assess the import of the defendant’s physical actions.

As to the additional physical action, following the retrieval of his shotgun, the defendant did not simply stand stationary beside his truck, bearing the retrieved weapon. Instead, with the weapon in hand, he physically advanced toward a victim he had threatened only moments earlier. If I have understood correctly the issue here to be whether there was evidence to satisfy the “physical-action” element of the menacing statute, then I find myself on the other side of “the looking glass” — confused.

Perhaps, however, I misunderstand the issue before us. Perhaps it is not the physical-action element of the menacing statute, but the other element — the intent vel non of the defendant to place another in fear of imminent serious physical injury — that we attempt here to address. The problem with this supposition, however, is that this too is a factual issue — a factual issue as to which the trial court made a finding based on ore tenus evidence.

The Court of Criminal Appeals wrote a 23-page unpublished memorandum parsing all the substantial evidence received in this case. The Court of Criminal Appeals quoted and discussed at length the application of well established ore tenus principles to the trial court’s findings based on this evidence. The evidence not received by the trial court ore tenus was in the form of security recordings that contain a partial, but undisputable, audio record of the events. The following synopsis of the evidence (amply supported by the evidence of record) was offered by the Court of Criminal Appeals below:

“Here, evidence that Pate was irate and that he walked toward [Walter Bryan] Hart with a shotgun after having implied that he would shoot the trespassers and having stated that he would assault Hart was sufficient to support a finding by the fact-finder that Pate’s conduct was intentional and intended to place or attempt to place Hart in fear of imminent serious physical injury.”

(Emphasis added.)

At one point, the trial court did criticize the defendant’s action in “getting the gun.” Surely, however, the use of the three words “getting the gun” was merely a shorthand description by the trial court of what the defendant did in this case. Given all the evidence before it, part of which was ore tenus testimony to which the trial court could and did assign credibility and weight, and the balance of which was indisputable audio and video recordings of the defendant’s actions and words, it cannot reasonably be assumed that the trial court found the defendant guilty of menacing based merely on the physical act of “getting the gun” removed entirely from his subsequent action of advancing toward the victim with that gun and from any of the conflict, anger, and threats that provide context and import for the defendant’s actions.

Moreover, if in fact we are ignoring this context for the defendant’s actions, then we are ignoring common sense and life experience. Further still, we ignore standards of appellate review that require us under circumstances such as this to assume the trial court knows and applied the law to the evidence before it. E.g., Ex parte Slaton, 680 So.2d 909 (Ala.1996). Part of that law is that the general demeanor of a defendant and verbal threats made by a defendant can and do provide context within which to evaluate and determine the import of a defendant’s purely physical actions.

In addition to the foregoing, the trial court itself made clear that it was not finding the defendant guilty based merely on the physical act of retrieving his shotgun:

“[T]he Court is convinced that your physical action, coupled with the testimony regarding what was said inside about having the weapon, indicates that you did intentionally place Mr. Hart in fear.”

(Emphasis added.)

The Court of Criminal Appeals followed the ore tenus rule in affirming the judgment of the trial court. I find no basis in this case for us not to do the same.

Finally, I note that, although the main opinion states that it pretermits consideration of the issue, it contends that this case does involve the issue of “a property owner’s right to defend his premises from a trespasser under § 13A-3-25, Ala.Code 1975.” 145 So.3d at 736. I disagree that this issue is even “presented.” Section 13A-3-25 states that “[a] person in lawful possession or control of premises ... may use physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person....” (Emphasis added.) First, this statute is inapposite because no “physical force” was used “upon another person,” only the threat of such force.

Second, the defendant could not have “reasonably believe[d]” that the assertion of physical force by him against the victim, Walter Bryan Hart, was necessary to defend his premises. The police were in control of the scene. In contrast to the defendant, at no point can Hart be heard to threaten the defendant or anyone else, and there was no testimony that he ever did, even before the police arrived. To the contrary, Hart can be heard on the security tape being polite and compliant. Hart plainly did not pose a physical threat to the defendant or to the defendant’s property at the point that the defendant retrieved his weapon and advanced toward Hart with it. Further, for the sake of their safety and others present, the police needed to maintain control of that scene. In this regard, the Court of Criminal Appeals aptly quoted with approval the following excerpt from the trial court’s order denying the defendant’s postjudgment motion for judgment of acquittal:

“4. Here, the police presence, the minor threat of physical confrontation and the trespasser’s retreat from the building toward his car lead this Court to find that the Defendant’s injection of a firearm into the conflict was an unreasonable use of non-deadly physical force.”

See generally District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (discussing the fact that the right to keep and bear arms does not extend to all circumstances, including the commission of a crime or the use of unjustified force).

Conclusion

Given the holding of the main opinion, it is unclear to me and, I suspect, to law enforcement and the bench and the bar as well, as to what now constitutes an offense under § 13A-6-23(a). At the least, it is now unclear who, as between the fact-finder and the appellate court, is to decide whether the actions (and related threats) of a defendant are sufficient to support a factual finding of an intent to place someone in fear of imminent injury.

I therefore respectfully dissent.

SHAW, Justice

(dissenting).

I respectfully dissent. I originally concurred to grant the petition for the writ of certiorari; after reviewing the record and the materials on appeal, I would quash the writ.

      . We note that the Court of Criminal Appeals affirmed the trial court’s judgment without an opinion. Presiding Judge Windom and Judge Kellum recused themselves. On May 16, 2012, then Chief Justice Charles R. Malone of the Alabama Supreme Court appointed retired Alabama Supreme Court Associate Justice Patricia M. Smith to sit specially on this case pursuant to § 12-13-17, Ala.Code 1975. Judge Welch, Judge Joiner, and Special Judge Smith concurred in affirming the menacing conviction. Judge Burke dissented, without writing.

      . A video disc containing the videos from four security tapes (three from the security camera at Santa Fe and one from a camera located in the police vehicle) was introduced into evidence at the trial, showing the sequence of events that occurred after Hart reentered the building. The tapes show Hart leaving the building with Pate and Dobbs behind him. Dobbs then goes back inside while Pate walks toward his truck, and Hart enters his vehicle. Pate retrieves his shotgun from his truck, and Hart is backing his vehicle out of his parking space while Pate begins walking toward Hart's parking space. The shotgun is in Pate’s right arm pointed at the ground. Hart is shown backing out and driving toward the parking lot exit before Pate even reaches the vicinity of Hart’s vehicle. No police officer is shown as being present in the vicinity until after Hart had left the parking lot.

      . It has been urged upon this Court that the Second Amendment rights should be addressed in this case. No issue regarding the Second Amendment was preserved in the trial court, however.

      . Lewis Carroll, Through the Looking-Glass, and What Alice Found There (Macmillan and Co.; London 1872).

      . The analysis of the main opinion consists mostly of a long quote concerning principles of statutory construction. Following this quote the main opinion simply states that, in light of these principles, the defendant's actions in this case cannot be considered menacing. There is no discussion of the quoted principles and specifically how they mandate such a conclusion. Moreover, I see no function in this case for the principles of statutory construction quoted in the main opinion. In light of what appears to me to be simple and straightforward language employed in the statute to define "menacing,” I find these principles inapposite.

      . In Henry v. State, 714 So.2d 1002, 1006 (Ala.Crim.App.1998), the Court of Criminal Appeals held that the evidence was sufficient to prove "menacing” where the defendant banged on the roof of his car and held a gun without pointing it at the victims in light of the context in which this action occurred, including specifically the fact that the defendant verbally threatened to harm the victims if they behaved in a certain manner. In Hiler v. State, 44 So.3d 535, 542 (Ala.Crim.App.2009) rev'd on other grounds, 44 So.3d 543 (Ala.2009), then Presiding Judge Wise wrote for the Court of Criminal Appeals that there was sufficient evidence to sustain a charge of menacing in light of the context in which the defendant's physical actions occurred; part of the context considered relevant by the Court of Criminal Appeals was the defendant's oral representation that the device was a bomb. Compare Mihas v. United States, 618 A.2d 197, 200 (D.C.1992)(making clear that verbalized threats provide important context for assessing the import of physical actions):
      "[I]ntent-to-frighten assault ... requires proof of ‘threatening conduct intended either to injure or frighten the victim.' Robinson [v. United States ], 506 A.2d [572] at 574 [(D.C.1986)]_We are satisfied that the record here clearly supports the trial court's conclusion that Mihas had engaged in this type of assault, and that the findings of fact provided an adequate basis for that conclusion. The actions of Mihas included initiating the conversation between the two with the hostile question 'What are you looking at?’ followed by the appellation 'Jocko' or 'punk,' and further followed by Mihas’ instruction to Rinehart that he should ‘get out of here.' These utterances were combined with Mihas' approach from ten to twelve feet away to within four or five feet of Rinehart, while holding a knife pointed in the direction of Rinehart belt high, and pointed downward at a 45 degree angle.”
      See also Matter of Monay W., 822 N.Y.S.2d 613, 33 A.D.3d 809, 810 (2006) (indicating that verbalized threats provide relevant context for assessing the import of physical acts by explaining that evidence that the defendant waved a knife in the air while standing four feet away from the complainant and asking if she wanted to fight establishes that the defendant intentionally placed another person in fear of imminent injury by physical menace).


source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    Luther Stancel PATE IV v. CITY OF TUSCALOOSA.
    CR-10-0843.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.

      Joel L. Sogol, Tuscaloosa; and M. Virginia Buck, Northport, for appellant.
    Kristen L. Love and Ashley McDavid, Tuscaloosa, for appellee.
    James W. Porter II, Birmingham; and James W. Porter III, Birmingham, for amicus curiae NRA Civil Rights Defense Fund, in support of the appellant.
   On Remand from the Alabama Supreme Court

WELCH, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Pate, 145 So.Bd 733 (Ala.2013), we reverse the trial court’s judgment and remand this case to the trial court for proceedings consistent with that opinion.

REVERSED AND REMANDED.

BURKE and JOINER, JJ., concur.

WINDOM, P.J., and KELLUM, J., recuse themselves.


author: BOLIN, Justice.

text:
    Ex parte Del MARSH et al. (In re Lynn Pettway v. Del Marsh et al.)
    1120781.
    Supreme Court of Alabama.
    Sept. 20, 2013.
    As Modified on Denial of Rehearing Nov. 22, 2013.

      Mare James Ayers and R. Aaron Chas-tain of Bradley Arant Boult Cummings LLP, Birmingham; and J. Rudy Hill of Bradley Arant Boult Cummings LLP, Montgomery, for petitioners Del Marsh and Gerald Dial; and Christopher W. Weller of Capell & Howard, P.C., Montgomery, for petitioners Chad Fincher and Jay Love.
    James H. Anderson and William F. Patty of Jackson, Anderson & Patty, P.C., Montgomery; Robert Segall of Copeland, Franco, Screws & Gill, P.C., Montgomery; Samuel H. Heldman of The Gardner Firm, P.C., Washington, D.C.; Theron Stokes and Clint Daughtrey of Alabama Education Association, Montgomery; and Edward Still, Birmingham, for respondent.
   BOLIN, Justice.

Del Marsh, Gerald Dial, Jay Love, and Chad Fincher (hereinafter collectively referred to as “the defendants”) were members of the Alabama Legislature during its 2013 Regular Session. The defendants seek a writ of mandamus ordering the Montgomery Circuit Court to set aside its order denying their motion to dismiss an action against them filed by Lynn Pettway and to enter an order granting the motion.

Facts and Procedural History

The Alabama House of Representatives approved House Bill 84 (“HB 84”), relating to education, and the bill was sent to the Senate, where the Senate Education Committee gave it a favorable report. On February 28, 2013, during the third reading of HB 84 on the floor of the Senate, an amendment was proposed and approved, and HB 84 was passed by the Senate. The amended version of HB 84 was then sent to the House, but the House voted to “non concur,” and HB 84 was sent to a conference committee. Representative Chad Fincher and Representative Jay Love were appointed to the conference committee, and, pursuant to Rule 21 of the Joint Rules of the Alabama Legislature, Representative Laura Hall was the house minority appointee. Senator Del Marsh and Senator Gerald Dial were appointed to the conference committee, and Senator Quinton Ross was appointed as the Senate minority appointee.

Notice was issued announcing that the conference committee would meet at 8:15 p.m. The meeting was called to order but was immediately recessed to reconvene at 4:15 p.m. The minority appointees, interested citizens, and media representatives returned at 4:15; however, the defendants did not return until 5:00 p.m., at which time they distributed a “substitute” version of HB 84. The substitute version was 21 pages longer than the original, the name had been changed to the “Alabama Accountability Act of 2013,” and multiple new provisions had been added. The defendants’ votes in favor of the substitute version carried, and the defendants signed the committee report stating that the substituted HB 84 was passed by the committee. Subsequently, HB 84 was then sent to the House and the Senate for approval. The House and the Senate adopted the substitute version of HB 84.

Rule 21 provides, in pertinent part:

“A Committee on Conference on an appropriation bill shall address differences in monetary amounts or language differences between the House-passed and Senate-passed versions of the pending legislation. The Committee on Conference shall not introduce a new appropriation item, earmark funds for any item that did not appear in either the House-passed or Senate-passed version, or propose new language that did not appear in either the House-passed or Senate-passed version. The conference committee shall not increase the appropriation to any entity above the higher amount passed by either the House or Senate. The provisions in this paragraph may be suspended as to particular items of appropriation or language by a majority recorded vote of the House membership and a majority recorded vote of the Senate membership.”

On March 4, 2013, Pettway sued the defendants in the Montgomery Circuit Court seeking injunctive and declaratory relief. Pettway alleged that HB 84 was passed in violation of Rule 21 and Alabama’s Open Meetings Act (§ 36-25A-1 et seq., Ala.Code 1975). The circuit court issued a temporary restraining order (“TRO”) prohibiting the clerk of the House of Representatives from sending HB 84 to the governor for his signature, and the defendants appealed. On March 13, 2013, this Court issued an order vacating the TRO, dismissing the underlying action, and dismissing the appeal on the ground that the dispute was not ripe for adjudication because HB 84 had not been signed into law or even taken on the color of law. Chief Justice Moore issued an opinion concurring specially with the Court’s order. See Marsh v. Pettway, 109 So.3d 1118 (Ala.2013) (Moore, C.J., concurring specially). On March 14, 2013, the governor signed HB 84, making the Alabama Accountability Act law.

On March 18, 2013, Pettway filed a new complaint seeking injunctive and declaratory relief and filed a motion for leave to serve the defendants, which the circuit court granted. Pettway named the same defendants and alleged that because they constituted a majority of the conference committee, the private meeting at which HB 84 was revised was a de facto meeting of the conference committee. Therefore, alleged Pettway, that private meeting was an “unannounced executive session” and violated both the Open Meetings Act and Rule 21. The new complaint asked for a judgment declaring the Alabama Accountability Act void as the result of multiple violations of the Open Meetings Act and Rule 21. The defendants moved to dismiss the complaint and to quash service. The circuit court denied the defendants’ motion but issued a stay of the proceedings and certified the following issue for permissive appeal:

“Whether a circuit court must dismiss and quash service of a complaint — filed during a legislative session and naming as defendants sitting Alabama legislators — based on principles of absolute legislative immunity and non-justiciability (i.e., lack of subject matter jurisdiction) where the complaint, on its face, raises claims challenging acts that are indisputably legislative activities.”

Because the proceedings have been stayed, the defendants have not been served with notice of the new complaint.

On April 4, 2013, the defendants filed a petition for permissive appeal pursuant to Rule 5, Ala. R. Civ. P. That same day, the defendants filed a petition for a writ of mandamus as an alternative to their permissive-appeal petition. The defendants contended that the circuit court exceeded its discretion in refusing to dismiss Pett-way’s new complaint for lack of subject-matter jurisdiction based on their absolute immunity as legislators and because Pett-way’s claims cannot be addressed without violating the separation-of-powers doctrine. On April 23, 2013, this Court denied the defendants’ petition for a permissive appeal. Ex parte Marsh (No. 1120779, April 23, 2013). That same day, we ordered answer and briefs in the mandamus proceeding.

Standard of Review

The defendants seek a writ of mandamus on the grounds of immunity and subject-matter jurisdiction. A writ of mandamus is an appropriate means for seeking review of an order denying immunity. Ex parte Simpson, 36 So.3d 15 (Ala.2009)(holding that mayor was entitled to legislative immunity for post-election participation in the passing of a zoning ordinance). Likewise, subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478 (Ala.2003). However, for the writ to be issued, “ ‘ “[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief.” ’ ” Ex parte Vance, 900 So.2d 394, 398-99 (Ala.2004)(quoting Goolsby v. Green, 431 So.2d 955, 958 (Ala.1983), quoting in turn Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981)).

“This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997).”

Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000).

Discussion

The defendants argue that the separation of the branches of Alabama government (Ala. Const.1901, Art. Ill, §§ 42, 43) is the basis for providing a specific protection to Alabama legislators in the Alabama Constitution:

“Members of the legislature shall, in all cases, except treason, felony, violation of their oath of office, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house shall not be questioned in any other place.”

Art. IV, § 56. Additionally, § 29-1-7, Ala.Code 1975, provides:

“(a) Members of the Legislature of Alabama shall in all cases, except treason, felony and breach of the peace, be privileged from arrest and shall not be subject to service of any summons, citation or other civil process during their attendance at the session of their respective houses and in going to and returning from the same.
“(b) Whoever knowingly and willfully denies to any member of the Legislature the privilege and immunity granted herein is guilty of a misdemeanor and, upon conviction, shall be punished by fine not exceeding $1,000.00 or by imprisonment for not more than one year, or by both.”

The defendants assert that the purpose of the “speech or debate clause” of § 56 is the protection of legislators from distractions and loss of time, energy, and attention needed for performing legislative tasks; therefore, the speech or debate clause protects legislators not only from liability (i.e., the ultimate consequence of litigation), “but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). The defendants contend that all the allegations in Pettway’s new complaint directly concern and challenge internal legislative activities.

The “speech or debate clause” of § 56 “ ‘protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.’ ” Marion v. Hall, 429 So.2d 937, 944 (Ala.1983) (Torbert, C.J., concurring specially, and quoting United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1971)). In Brewster, the Supreme Court addressed an issue involving the “Speech or Debate” Clause, U.S. Const., Art. I, § 6, which provides, in pertinent part: “[F]or any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” The Supreme Court, interpreting the federal constitutional provision, has observed that a member of Congress is immune from suit if the basis of the prosecution is a legislative act or the motivation for a legislative act. In thus defining what constitutes a legislative act, the Supreme Court stated:

“A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.”

408 U.S. at 512.

In Bogan v. Scott-Harris, 523 U.S. 44, 52, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), the Supreme Court stated:

“The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v. United States, 493 U.S. 265, 279 (1990)(noting, in the context of addressing local legislative action, that ‘any restriction on a legislator’s freedom undermines the “public good” by interfering with the rights of the people to representation in the democratic process’); see also Kilbourn v. Thompson, 103 U.S. [168], at 201-204 [(1881)] (federal legislators); Tenney [v. Brandhove, 341 U.S. 367], at 377 [(1951)] (state legislators); Lake Country Estates[ Inc., v. Tahoe Reg’l Planning Agency], 440 U.S. [391], at 405 [(1979)] (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377 (citing ‘the cost and inconvenience and distractions of a trial’). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).”

In Hillman v. Yarbrough, 936 So.2d 1056 (Ala.2006), a consulting engineer sued a county commissioner, the county commission, and a local newspaper, alleging that the commissioner’s comments relating to the engineer’s performance on a county project were slanderous. This Court adopted the Supreme Court’s reasoning in Brewster and Bogan. “In order to promote the public welfare, Alabama law has conferred upon members of legislative bodies an absolute privilege from certain causes of action stemming from the performance of their legislative functions.” Butler v. Town of Argo, 871 So.2d 1, 23 (Ala.2003). Legislative immunity prevents probes “for evidence with which to support the litigant’s challenge to a legislative decision as improperly motivated, procedurally defective, or otherwise infirm.” Dyas v. City of Fairhope, No. 08-0232, Sept. 24, 2009 (S.D.Ala.2009) (not reported in F.Supp.2d).

In the present case, Pettway’s new complaint concerns allegations regarding the procedural history of the Alabama Accountability Act. The allegations challenge the actions of legislators during the conference-committee hearing; the substitute version of HB 84; and the passage of the substitute version of HB 84. The defendants’ actions are clearly within the “sphere of legitimate legislative activity,” Bogan, 523 U.S. at 54, i.e., those matters that are “an integral part of the deliberative and communicative process by which [legislators] participated in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation.” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Conduct at legislative meetings such as the conduct involved here falls within the penumbra of the speech or debate clause of § 56.

We recognize that § 29-1-7 is an extension of the legislative immunity set out in § 56 and provides that legislators are protected from service of process during the legislative session. In arguing that they are immune from suit, the defendants also contend that the circuit court exceeded its discretion in granting Pettway’s motion for leave -to serve them with process during the legislative session. Although the circuit court granted Pettway’s motion for leave to serve, it subsequently stayed the proceedings. Because the defendants have not been served and because the legislature adjourned sine die on May 20, 2013, we find that the issue of service of process is now moot.

The defendants’ second argument is that the circuit court lacks subject-matter jurisdiction over this matter because Pettway’s claims are nonjusticiable. The defendants contend that for the circuit court to consider and rule on Pettway’s claims involving Rule 21 would involve “judicial second-guessing” of the legislature’s internal actions, motivations, and procedural decisions. Further, they argue that when the interpretation and application of the Open Meetings Act appears to controvert constitutional principles, the Act must give way because “ ‘the Alabama constitution has priority over the State Code.’ ” Pettway, 109 So.3d at 1123 (Moore, C.J., concurring specially, and quoting Bassett v. Newton, 658 So.2d 398, 400 (Ala.1995)).

Under the separation-of-powers provision, the Alabama Constitution gives the legislature the unlimited power to determine the rules governing its own proceedings unless another provision of the Alabama Constitution provides otherwise. Ala. Const. 1901, Art. IV, § 53; Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 217 (Ala.2005)(“The power of the legislature to determine the rules of its own proceedings is ‘unlimited except as controlled by other provisions of our Constitution.’ ...”). “[U]nless controlled by other constitutional provisions, the courts cannot look to the wisdom or folly, the advantages or disadvantages of the rules which a legislative body adopts to govern its own proceedings.” ' Opinion of the Justices No. 185, 278 Ala. 522, 525, 179 So.2d 155, 158 (1965)(seeking an opinion relating to the validity of a Senate rule governing the procedure for terminating debate or invoking cloture).

In Goodwin v. State Board of Administration, 212 Ala. 453, 102 So. 718 (1925), the plaintiff alleged that an act was not legally passed because it violated a rule of the House of Representatives. This Court held that “[t]he rule not being required by the Constitution, but adopted by the House for its own convenience, the fact that it may have been overlooked or violated in the passage of the act did not impair its validity.” 212 Ala. at 455, 102 So. at 719. The rules controlling legislative procedure are usually formulated or adopted by legislative bodies themselves, and the observance of such rules is a matter that is entirely subject to legislative control and discretion and is not subject to review by a court unless the rules conflict with the constitution. Town of Brilliant v. City of Winfield, 752 So.2d 1192, 1198 (Ala.1999).

The Alabama Open Meetings Act provides that it is the public policy of this State that the deliberative process of governmental bodies shall be open to the public during meetings; it is applicable to the Alabama Legislature. § 36-25A-2(4), Ala. Code 1975. However, the question before us is whether the legislature’s alleged violation of the Opening Meetings Act is justi-ciable. Section 36-25A-8, Ala.Code 1975, recognizes that,

“[i]n addition to any existing applicable immunity, members of a governmental body and any of its employees participating in a meeting conducted in conformance with this chapter shall have an absolute privilege and immunity from suit for any statement made during the meeting which relates to an action pending before the governmental body.”

(Emphasis added.) Existing applicable immunity for the legislature is legislative immunity conferred on the legislature by § 56. The Alabama Constitution does not require the legislature to conduct its meetings in public. Because the Alabama Constitution gives the legislature the authority to establish its own procedural rules and because the Open Meetings Act must yield to the Alabama Constitution, the legislature’s alleged violation of the Open Meetings Act or Rule 21 in this case is not justiciable. It is not the function of the judiciary to require the legislature to follow its own rules.

Conclusion

Based on the foregoing, we find that the defendants are entitled to a writ of mandamus ordering the circuit court to grant their motion to dismiss Pettway’s new complaint on the related grounds that legislators are immune from suit regarding acts undertaken within the sphere of legitimate legislative activity and because the substance of Pettway’s new complaint involves nonjusticiable claims that would lead to judicial second-guessing of the legislature’s internal actions, motivations, and procedural decisions regarding its actions.

PETITION GRANTED; WRIT ISSUED.

MOORE, C.J., and STUART, PARKER, MAIN, WISE, and BRYAN, JJ„ concur.

MURDOCK and SHAW, JJ„ concur in the result.


author: PARKER, Justice. MURDOCK, Justice

text:
    Ex parte Jerome COLEMAN and City of Birmingham (In re Eric Whatley v. James Higginbotham et al.).
    1120873.
    Supreme Court of Alabama.
    Oct. 25, 2013.

      James D. Love, asst, city atty., City of Birmingham, Law Department, for petitioners.
    Rip Andrews and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for respondent.
   PARKER, Justice.

Jerome Coleman and the City of Birmingham (“the City”) (hereinafter collectively referred to as “the petitioners”) petition this Court for a writ of mandamus directing the Jefferson Circuit Court (“the circuit court”) to vacate its judgment denying the petitioners’ motion for a summary judgment and to enter a judgment in their favor based on State-agent immunity. We grant the petition and issue the writ.

Facts and Procedural History

The facts are undisputed. Coleman is employed by the City as a police officer with the Birmingham Police Department (“the BPD”). On May 29, 2010, the BPD received a report that a vehicle was on fire on Interstate 459 (“1-459”). Coleman responded in a marked BPD vehicle that was equipped with emergency lights and a siren. Coleman was traveling west on Highway 280 toward the intersection of Highway 280 and the south access ramp of I-459 (“the intersection”) making continuous use of the BPD vehicle’s emergency lights; Coleman did not make use of the siren on the BPD vehicle while driving west on Highway 280. James Higginbotham, a firefighter employed by the Birmingham Fire and Rescue Service (“BFRS”), was responding to the same report in a BFRS engine and was following approximately 500 feet behind Coleman also heading west on Highway 280 toward the intersection; the emergency lights and siren on the BFRS engine were continuously on while Higginbotham was traveling west on Highway 280.

Coleman reached the intersection and proceeded to drive “up to the median (center) in front of the turn lanes in the direction of the I[-]459 South access ramp.” Petition, Exhibit A, at pp. 3-4. Coleman did not drive through the intersection at that time, but stopped short of the eastbound lanes of Highway 280 in the median. The traffic lights controlling the westbound Highway 280 turn lanes leading to the 1-459 south access ramp, upon which Coleman was traveling, were red; Coleman had to drive through a red light in order to enter the median. Coleman “had [his] emergency lights on and had [his] siren make a yelping sound to alert oncoming traffic.” Whatley’s response, Tab D, unmarked exhibit A, at p. 4. Coleman made use of the siren on the BPD vehicle, but he did not make continuous use of the siren. In response to Coleman’s maneuver, the eastbound oncoming traffic on Highway 280 came to a halt in all but one of the eastbound lanes. Coleman sought to stop the eastbound traffic of Highway 280 so that Higginbotham, who was making continuous use of the emergency lights and siren on the BFRS engine, could navigate the BFRS engine he was driving into the intersection, across the eastbound lanes of Highway 280, and onto the south access ramp of 1-459.

Higginbotham approached the intersection making continuous use of the BFRS engine’s emergency lights and siren and entered the intersection, passing the BPD vehicle Coleman was driving, which was stopped in the median. As Higginbotham was passing through the intersection, the BFRS engine Higginbotham was driving was struck by a large commercial truck owned by Allen Tree Service and being driven by Eric Whatley. The traffic signal controlling the eastbound Highway 280 traffic, from which direction Whatley was traveling, was green at the time of the accident. In his deposition testimony, Coleman testified that it was possible that Whatley could have been too far away from the intersection at the time Coleman “yelped” the siren of the BPD vehicle he was driving to hear the “yelp” of the siren. There is nothing in the record to indicate whether Whatley actually heard the “yelp” of the siren of the BPD vehicle Coleman was driving or the continuous siren of the BFRS engine Higginbotham was driving. Whatley sustained injuries as a result of the accident.

Coleman never drove the BPD vehicle into the path of the large commercial truck Whatley was driving. Neither did the BPD vehicle Coleman was driving ever come into contact with the truck Whatley was driving.

On February 2, 2011, Whatley sued Higginbotham, the City, and several fictitiously named defendants. Whatley asserted claims of negligence and wantonness against Higginbotham and vicarious liability against the City. On September 7, 2011, Whatley filed an amended complaint adding Coleman as a defendant and asserting claims of negligence and wantonness against Coleman. On October 10, 2011, Coleman filed an answer denying all the allegations in Whatley’s complaint and raising the affirmative defense of State-agent immunity.

On February 4, 2013, the petitioners filed a motion for a summary judgment. The petitioners argued that Coleman was immune from Whatley’s action against Coleman pursuant to § 6-5-338, Ala.Code 1975, and the doctrine of State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), as modified by Hollis v. City of Brighton, 950 So.2d 300 (Ala.2006). Specifically, the petitioners argued that Coleman was entitled to State-agent immunity because he was acting in accordance with § 32-5A-7, Ala.Code 1975, which states, in pertinent part:

“(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 this chapter;
“(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 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.”

The petitioners alternatively argued that, even if Coleman is not entitled to State-agent immunity, the petitioners were entitled “to judgment as a matter of law because [Whatley] cannot produce substantial evidence proving each element of negligence,” specifically the element of proximate causation. On February 27, 2013, Whatley filed a response to the petitioners’ summary-judgment motion arguing that Coleman was not entitled to State-agent immunity because he did not comply with § 32-5A-7 by simply “yelping” the siren of the BPD vehicle he was driving; Whatley argued that § 32-5A-7 required Coleman to make continuous use of the siren of the BPD vehicle Coleman was driving.

On March 12, 2013, the circuit court denied the petitioners’ summary-judgment motion, stating:

“Pending is a motion for summary judgment, filed by defendant Jerome Coleman, a Birmingham police officer, and defendant the City of Birmingham. [Whatley] opposes this motion.
“The defendants’ motion for summary judgment is first based on the doctrine of State-agent immunity, Ala.Code [1975,] § 6-5-338, has long provided such immunity to peace officers of this State. As made clear in Hollis v. City of Brighton, 950 So.2d 300, 308-09 (Ala.2006), the analysis of immunity under this statute blends with the State-agent immunity analysis that comes from Ex parte Cranman, 792 So.2d 392 (Ala.2000), and Ex parte Butts, 775 So.2d 173 (Ala.2000).
“As recognized in Hollis, ‘immune category 4 of the Cranman restatement’ provides that ‘[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 ... exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement 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.’ Hollis v. City of Brighton, 950 So.2d at 309.
“Given the particular circumstances of this dispute, this [c]ourt also looks to Blackwood v. City of Hanceville, 936 So.2d 495 (Ala.2006). While it predates the synthesis of analyses recognized in Hollis, the Blackwood case was very similar to the case here, as it was a suit brought by a passenger against a city police officer, relating to a collision that occurred while the officer was responding to an emergency call to report to the scene of an automobile accident.
“In reversing summary judgment, the Blackwood court provided the following framework that guides this [cjourt here:
“ ‘We need not decide whether or how the difference between the language of § 6-5-338(3) and the language of the Cranman restatement might need to be further reconciled, because the conduct for which Conner is seeking immunity is the driving of an authorized emergency vehicle in response to an emergency call. In such a case, the immunity afforded the peace officer under either description of immune conduct is subject to, and limited by, the conditions imposed by [Ala. Code 1975,] § 32-5A-7. In the particular settings described by § 32-5A-7(a), the legislature has acted to restrain the manner in which the driver of the emergency vehicle may exercise his or her discretion and judgment.’
“Blackwood, 936 So.2d at 505-06.
“This [c]ourt thus turns to Ala.Code [1975,] § 32-5A-7, which provides that a police officer, ‘when responding to an emergency call,’ may park in an intersection and halt traffic, but only if his police vehicle ‘is making use of an audible signal meeting the requirements of Section 32-5-213 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.’
“The fact is undisputed that defendant Coleman’s siren was not continually on while he was stopped; rather, he had the siren emit only one short burst, or ‘yelp,’ to stop oncoming traffic. The legal question comes down to whether a single siren ‘yelp’ meets the requirement of Ala.Code [1975,] § 32-5A-7. This [c]ourt finds that at least under the circumstances of this case, an isolated yelp does not suffice.
“This conclusion may well be different had the collision occurred on a two-lane secondary road, where many fewer vehicles go much more slowly. On Highway 280, however, which is a very wide, mul-ti-lane U.S. highway bearing many, many vehicles at any time, one yelp may well not be reasonable and thus may not be sufficient to meet the requirements of the law.
“This [c]ourt therefore finds that summary judgment in favor of these defendants cannot be based on immunity grounds.
“The defendants also argue that summary judgment in their favor is proper because any negligence on the part of defendant Coleman could not have been the proximate cause of the accident. It is true that [Whatley] did not collide with Coleman’s vehicle, crashing instead into a fire engine driven by codefendant Higginbotham. Summary judgment on this basis is also improper, however, because this may well have been a situation in which the alleged negligence of Coleman combined and concurred with the possible negligence of other parties to cause the accident. The question of proximate cause almost always is for a jury, and this [e]ourt sees no basis here to deviate from that general rule.
“These defendants’ pending summary judgment motion must therefore be denied.”

The petitioners then petitioned this Court for a writ of mandamus.

Standard of Review

“‘Mandamus is an extraordinary writ and will be issued “ ‘only when there is: (1) a clear 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 Land, 775 So.2d 847, 850 (Ala.2000) (quoting Ex parte HoHon, 711 So.2d 979, 983 (Ala.1998)). When we consider a mandamus petition, the scope of our review is to determine whether the trial court clearly exceeded its discretion. Ex parte Tegner, 682 So.2d 396 (Ala.1996).’
“State v. Bui, 888 So.2d 1227, 1229 (Ala.2004). We further note this Court’s general rule that we will not review the denial of a motion for a summary judgment on a petition for the -writ of mandamus because an adequate remedy exists by way of an appeal. Ex parte Par Pharm., Inc., 58 So.3d 767, 775-76 (Ala.2010). However, an exception to that general rule is ‘that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citing Ex parte Purvis, 689 So.2d 794 (Ala.1996)).”

Ex parte Thomas, 110 So.3d 363, 365-66 (Ala.2012).

Discussion

This Court set forth the law applicable to police officers seeking State-agent immunity in Ex parte City of Montgomery, 99 So.3d 282 (Ala.2012), as follows:

“Section 6-5-338(a) provides:
“ ‘Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency 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 police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting 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 violations of, the criminal laws of this state, 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 function within the line and scope of his or her law enforcement duties.’
“The restatement of State-agent immunity as set out by this Court in Ex parte Cranman, [792 So.2d 392 (Ala.2000) ], governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a). Ex parte City of Tuskegee, 932 So.2d 895, 904 (Ala.2005). This Court, in Cranman, stated the test for State-agent immunity as follows:
“ ‘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
“ ‘(1) formulating plans, policies, or designs; or
“ ‘(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“ ‘(a) making administrative adjudications;
“ ‘(b) allocating resources;
“ ‘(c) negotiating contracts;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel; or
“ ‘(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“ ‘(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“ ‘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.’
“Cranman, 792 So.2d at 405. Because the scope of immunity for law-enforcement officers set forth § 6-5-338(a) was broader than category (4) of the restatement adopted in Cranman, this Court, in Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala.2006), expanded and modified category (4) of the Cranman test to read as follows:
“ ‘ “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, law-enforcement 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.”
“Hollis, 950 So.2d at 309. Additionally:
“ ‘ “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 State agent asserting State-agent immunity “bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity.” 946 So.2d at 452. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable. The exception being argued here is that “the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.” 946 So.2d at 452. 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.’ ” Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003) (quoting Ex parte Butts, 775 So.2d [173,] 178 [(Ala.2000)]).’
“Ex parte Kennedy, 992 So.2d 1276, 1282-83 (Ala.2008).”

99 So.3d at 292-94.

It is undisputed that Coleman is a peace officer entitled to the immunity established in § 6-5-338(a) and that at the time of the accident he was performing a function— responding to an emergency call — that entitles Coleman to immunity. Therefore, the only question before this Court is whether Whatley carried his burden of showing that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable. Whatley agues, and the circuit court held, that Coleman acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority by failing to comply with § 32-5A-7. As set forth above by the circuit court in its order denying the petitioners’ summary-judgment motion, § 32-5A-7

“provides that a police officer, ‘when responding to an emergency call,’ may park in an intersection and halt traffic, but only if his police vehicle ‘is making use of an audible signal meeting the requirements of Section 32-5-213 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.’ ”

The circuit court determined that Coleman acted outside his discretion by failing to comply with § 32-5A-7 because Coleman failed to make continuous use of the siren of the BPD vehicle while he was in the median of Highway 280 attempting to stop the eastbound traffic on Highway 280 so that Higginbotham, who was making continuous use of the emergency lights and siren on the BFRS engine, could drive through the intersection. Essentially, the circuit court determined that Coleman was not “making use of an audible signal,” as that term is defined in § 32-5A-7, because Coleman did not make continuous use of the siren of the BPD vehicle he was driving. We disagree.

As the petitioners argue, “Coleman had his emergency lights on and had his siren make a yelping sound to alert oncoming traffic. Therefore, ... Coleman was ‘making use of an audible signal ... and visual requirements’ pursuant to § 32-5A-7(c) ... and is immune from liability under § 6-5-338(a).” Petition, at p. 18. Nothing in § 32-5A-7 dictates the manner in which a siren must be used; it requires only that a siren be used. The legislature certainly could have inserted the adjective “continuous” in § 32-5A-7 to modify “audible signal” had it so intended. “The judiciary will not add that which the Legislature chose to omit.” Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993). In this case, although Coleman did not make continuous use of the siren, that is not what the statute requires. Coleman exercised the discretion given him under § 32-5A-7 in making use of the siren on the BPD vehicle he was driving when he stopped the eastbound traffic on Highway 280 so that Higginbotham, who was making continuous use of the emergency lights and siren on the BFRS engine, could drive the BFRS engine through the intersection; thus, Coleman is entitled to immunity under § 6-5-338(a) and under the doctrine of State-agent immunity set forth in Cran-man, supra, as modified by Hollis v. City of Brighton, 950 So.2d 300 (Ala.2006).

Our interpretation of § 32-5A-7 in this case is supported when compared with Williams v. Crook, 741 So.2d 1074 (Ala.1999), a prior decision of this Court’s applying § 32-5A-7. In Blackwood v. City of Hanceville, 936 So.2d 495 (Ala.2006), this Court summarized Williams as follows:

“In Williams, supra, a municipal police officer responding to a domestic-disturbance call on a rainy night elected to exceed the speed limit but not to turn on his patrol car’s flashing blue lights and siren. 741 So.2d at 1075. A vehicular collision occurred, and the officer and the municipality by whom he was employed were sued. The trial court entered a summary judgment for the officer and the municipality, under § 6-5-338, based on the officer’s explanation that he had exercised his discretion in deciding not to use his emergency signals ‘because he was concerned that using them might alert anyone at the site of the domestic disturbance to the imminent arrival of the police and that anyone seeking to evade the police might thus have an opportunity to flee.’ 741 So.2d at 1075. This Court reversed the summary judgment, agreeing that § 32-5A-7 gave the officer discretion to drive at a speed in excess of the speed limit but determining that, under the language of that statute, the officer did not have the discretion to exceed the speed limit without using his emergency signals. Section 32-5A-7(c) expressly states that the various exemptions granted an authorized emergency vehicle by that Code section would apply only when the vehicle is using acceptable audible and visual signals. ‘Although [the officer] did have the discretion to decide whether he would drive in excess of the speed limit, once he made that decision he did not have the discretion to further decide whether he would comply with the audible- and visual-signal requirements of § 32-5A-7(c).’ 741 So.2d at 1077.”

936 So.2d at 506 (discussing Williams, supra). The police officer in Williams was not entitled to immunity under § 6-5-338 because he failed to make any use of his emergency signals. In the present case, Coleman, exercising the discretion afforded him, made continuous use of the BPD vehicle’s emergency lights and, although not continuous, he did make use of the siren on the BPD vehicle in stopping the oncoming traffic so that Higginbotham, who was making continuous use of the emergency lights and siren on the BFRS engine, could drive the BFRS engine through the intersection. Our conclusion in this case that “making use of an audible signal” does not necessarily require continuous use is not inconsistent with this Court’s holding in Williams.

Whatley argues that whether the single “yelp” Coleman used to stop the eastbound traffic on Highway 280 so that Higginbotham, who was making continuous use of the emergency lights and siren on the BFRS engine, could drive through the intersection satisfies the statutory requirement of § 32-5A-7 is a question for the jury; thus, he asserts, the circuit court properly denied the petitioners’ summary-judgment motion. However, whether a single “yelp” of a siren constitutes “making use of an audible signal” under § 32-5A-7 is a question of statutory interpretation, which presents only a question of law. See Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003) (“This Court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.”). Therefore, Whatley’s argument is without merit.

We note that the petitioners also argue that their summary-judgment motion was due to be granted because “Whatley cannot produce substantial evidence showing [that] ... Coleman is the proximate cause of the accident for which Whatley complains.” Petition, at p. 21. However, our holding that Coleman is entitled to State-agent immunity pretermits discussion of this issue.

Conclusion

The petitioners have demonstrated a clear legal right to a summary judgment based on State-agent immunity. Therefore, we grant the petition and issue the writ directing the circuit court to enter a summary judgment for Coleman and for the City as to its liability based on the claims against Coleman.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result.

MOORE, C.J., and SHAW, J., dissent.

MURDOCK, Justice

(concurring in the result).

Although the parking of a vehicle in the median of a roadway normally is not permitted under the law of Alabama, § 32-5A-7, Ala.Code 1975, describes certain circumstances under which a police vehicle is permitted to do so. I am inclined to disagree with the conclusion of the main opinion that the single “yelp” of his siren qualified Jerome Coleman for the exemption from the general prohibition of parking in a median provided to a police vehicle by § 32-5A-7 when, among other things, that vehicle “is making use of an audible siren.” (Emphasis added.)

The fact that Coleman’s conduct was not specifically exempted by § 32-5A-7 from constituting a violation of this State’s traffic laws, however, does not lead me to conclude that he is not protected by the doctrine of State-agent immunity. The fact remains that Coleman was engaged in a discretionary police function and therefore is entitled to the protection of § 6-5-338(a), Ala.Code 1975, as well as the fourth category of State-agent immunity as articulated in Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala.2006). Nor does Coleman lose this immunity because of his failure to satisfy all the prerequisites for parking his vehicle in a median as prescribed in § 32-5A-7. As I stated recently in L.N. v. Monroe County Board of Education, 141 So.3d 466, 473 (Ala.2013) (Murdock, J., concurring specially):

“I remain of the view that, in recent years, this Court has ‘ballooned’ the ‘beyond authority’ exception to State-agent immunity identified in Ex part Cranman, 792 So.2d 392 (Ala.2000), and Ex parte Butts, 775 So.2d 173, 178 (Ala.2000), into something that threatens to, and that taken to its logical conclusion does, swallow the rule of State-agent immunity also identified in those cases. By this reference, I incorporate herein the position I expressed as to this issue in Ex parte Watson, 37 So.3d 752, 765-66 (Ala.2009) (Murdock, J., concurring in part and dissenting in part). Furthermore, I also incorporate by this reference the analysis provided by the United States Court of Appeals for the Eleventh Circuit in Holloman v. Harland, 370 F.3d 1252 (11th Cir.2004), a case I have only recently noticed, but one that perhaps offers a more erudite explanation than have I thus far as to what that court would call the ‘untenable tautology’ created by a ‘beyond authority’ exception to immunity that has been ‘framed’ by this Court.
“Specifically, my understanding of the purpose and nature of the ‘beyond authority’ exception in Alabama law finds a parallel in the federal law’s inquiry into whether a state official is entitled to ‘qualified immunity’ from certain federal-law claims. In Holloman, the Eleventh Circuit explained how it is that a state official might be considered to be acting within his or her authority, even in the course of violating the constitution, which of course the official ultimately is not authorized to do.”

I take this opportunity to share those portions of the Eleventh Circuit’s opinion in Holloman that I find well explain the “ ‘untenable tautology’ created by a ‘beyond authority’ exception to immunity that has been ‘framed’ by this Court.” L.N., 141 So.3d at 468 (Murdock, J., concurring specially and citing Holloman v. Harland, 370 F.3d 1252 (11th Cir.2004)). If one substitutes for the concept of violating another’s “constitutional rights” as referenced in Holloman the concept of simply violating another’s legal rights (which, of course, also may be said to be “beyond the authority” of a State employee), it readily becomes apparent that this Court’s interpretation of the “beyond authority” exception inevitably collapses the immunity determination into the determination of whether the State employee has committed a tort or any other wrong actionable under state or federal law.

The court in Holloman explained that it employed a two-part test in determining whether a government employee was entitled to qualified immunity:

“Our inquiry is two-fold. We ask whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize. See Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185 n. 17 (11th Cir.1994) (‘A government official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official’s duties and within the scope of this authority.’ (emphasis added)).
“One might reasonably believe that violating someone’s constitutional rights is never a legitimate job-related function or within the scope of a government official’s authority or power. As we explained in Harbert Int’l, Inc. v. James, 157 F.3d 1271,1282 (11th Cir.1998) (quotation marks and citation omitted), however, ‘the inquiry is not whether it was within the defendant’s authority to commit the allegedly illegal act. Framed that way, the inquiry is no more than an untenable tautology.’ In applying each prong of this test, we look to the general nature of the defendant’s action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.
“Consider the first prong of the test— whether the official is engaged in a legitimate job-related function. In Sims v. Metropolitan Dade County, 972 F.2d 1230 (11th Cir.1992), ‘we did not ask whether it was within the defendant’s authority to suspend an employee for an improper reason; instead, we asked whether [the defendant’s] discretionary duties included the administration of discipline.’ Harbert, 157 F.3d at 1282. Similarly, in assessing whether a police officer may assert qualified immunity against a Fourth Amendment claim, we do not ask whether he has the right to engage in unconstitutional searches and seizures, but whether engaging in searches and seizures in general is a part of his job-related powers and responsibilities. See, e.g., Madiwale v. Sa-vaiko, 117 F.3d 1321, 1324 (11th Cir.1997). Put another way, to pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen with his legitimate job description.
“Of course, we must be sure not to characterize and assess the defendant’s act at too high a level of generality. Nearly every act performed by a government employee can be described, in general terms, as ostensibly ‘furthering the public interest.’ If we jump to such a high level of abstraction, it becomes impossible to determine whether the employee was truly acting within the proper scope of his job-related activities. Consequently, we consider a government official’s actions at the minimum level of generality necessary to remove the constitutional taint. In considering whether an act of allegedly excessive force fell within a police officer’s duties, for example, we do not ask whether police have the right to use excessive force. We also do not immediately jump to a high level of generality and ask whether police are responsible for enforcing the law or promoting the public interest. We instead ask whether they have the power to attempt to effectuate arrests. See, e.g., [Lee v.] Ferraro, 284 F.3d [1188] at 1194 [(11th cir.2002)] (holding, in an excessive force suit, ‘there can be no doubt that [the police officer defendant] was acting in his discretionary capacity when he arrested [plaintiff]’).
“After determining that an official is engaged in a legitimate job-related function, it is then necessary to turn to the second prong of the test and determine whether he is executing that job-related function — that is, pursuing his job-related goals — in an authorized manner. The primary purpose of the qualified immunity doctrine is to allow government employees to enjoy a degree of protection only when exercising powers that legitimately form a part of their jobs. See, e.g., Harlow [v. Fitzgerald ], 457 U.S. [800] at 819 & n. 34, 102 S.Ct. at 2739 & n. 34 [ (1982) ] (limiting the availability of qualified immunity to situations where ‘an official’s duties legitimately require action’ and to ‘actions within the scope of an official’s duties’). Each government employee is given only a certain ‘arsenal’ of powers with which to accomplish her goals. For example, it is not within a teacher’s official powers to sign her students up for the Army to promote patriotism or civic virtue, or to compel them to bring their property to school to redistribute their wealth to the poor so that they can have firsthand experience with altruism.
“Employment by a local, county, state, or federal government is not a carte blanche invitation to push the envelope and tackle matters far beyond one’s job description or achieve one’s official goals through unauthorized means. Pursuing a job-related goal through means that fall outside the range of discretion that comes with an employee’s job is not protected by qualified immunity.
“Under this standard, Allred — as a matter of law — was undoubtedly engaged in a discretionary function in chastising Holloman for raising his fist during the Pledge of Allegiance and later referring him to Harland for punishment. Though Allred is not empowered to violate constitutional rights as part of her official duties, she did have the responsibility of maintaining decorum in the classroom. The fact that she may have attempted to keep order in the classroom in an unconstitutional manner does not change the fact that she was fulfilling a legitimate job-related function. Moreover, the ways in which she attempted to pursue this job-related goal (chastising Holloman and reporting him to the principal) — examined on a general level rather than in this specific application — were legitimate prerogatives of her job. From an alternate perspective, putting aside Holloman’s First Amendment claim, Allred’s actions would undoubtedly be considered part of her duties and legitimate exercises of her authority. Consequently, under the two-prong test articulated above, her activities in relation to the flag salute incident were discretionary acts for which she may seek qualified immunity.”

370 F.3d at 1265-67 (final emphasis added).

      . Higginbotham did not join the petitioners' summary-judgment motion.