Police Officers’ Defense-of-Persons Immunity Must Be Assessed Under § 13A-3-23

1. Introduction

This decision separates two distinct statutory protections governing the use of force in Alabama: the defense-of-persons immunity available to any qualifying person under § 13A-3-23, Ala. Code 1975, and the separate justification for a peace officer’s use of force under § 13A-3-27. The central holding is that an officer seeking pretrial immunity under the former statute must have that claim evaluated under its own requirements—not under the different standards governing the latter.

The case arose from Decatur Police Officer Mac Bailey Marquette’s fatal shooting of Stephen Perkins during an attempted vehicle repossession. After being indicted for murder, Marquette requested dismissal on statutory immunity grounds. The circuit court denied relief after treating the peace-officer statute as the proper framework, and the Court of Criminal Appeals accepted that approach.

The Supreme Court held that the lower courts used the wrong statutory framework. It did not decide that the shooting was justified, declare Marquette immune, or dismiss the indictment. Instead, it directed the circuit court to vacate its order and reconsider immunity under § 13A-3-23.

Temporal limitation: The opinion interprets the statutes in effect during September 28–29, 2023. It expressly notes subsequent amendments to the peace-officer statute in 2025 and the defense-of-persons statute in 2026. Its analysis therefore should not be assumed to resolve questions arising under those amended versions.

2. Background and Procedural History

The attempted repossession and shooting

Tow-truck driver Caleb Combs initially attempted to repossess Perkins’s truck from his driveway. According to the opinion’s account, Perkins confronted Combs, pointed a firearm approximately six to eight inches from his chest, and demanded that he leave. Combs withdrew and subsequently requested police assistance.

Responding officers told Combs that they could not directly assist with repossession or compel Perkins to surrender the vehicle. They nevertheless agreed to position officers near the residence to protect Combs during another attempt.

During that second attempt, Perkins emerged carrying a firearm equipped with a mounted flashlight. When Perkins pointed the weapon at Combs, Marquette shouted, “Police! Get on the ground!” The circuit court described Perkins as then swinging the gun toward Marquette and afterward upward above the roof. Marquette shot Perkins, causing his death. The Supreme Court did not resolve whether these circumstances ultimately satisfied the requirements for justified deadly force.

The immunity proceedings

Marquette moved for a pretrial immunity hearing and dismissal under § 13A-3-23. His arguments concerned defensive deadly force under subsection (a)(1) and the retreat provisions in subsection (b).

The circuit court held the required hearing but concluded that § 13A-3-23 was “not the proper statute to analyze this case.” It instead applied § 13A-3-27(b)(2), examining whether Marquette acted as a reasonable police officer and whether he was acting within his official capacity. The court denied immunity and stayed the prosecution to permit appellate review.

In Ex parte Marquette (No. CR-2025-0369, Aug. 15, 2025), ___ So. 3d ___ (Ala. Crim. App. 2025) (table), the Court of Criminal Appeals declined to order dismissal. Its unpublished memorandum likewise treated the peace-officer statute as the appropriate framework and considered official capacity a condition of immunity. That ruling was the immediate procedural antecedent to the Supreme Court petition, rather than an independent authority supporting the Supreme Court’s analysis.

3. Summary of the Opinion

The Court identified three material differences between the statutes:

1. Who is protected: Section 13A-3-23 applies to “a person,” including a police officer; § 13A-3-27 principally addresses peace officers and specified related situations.
2. What protection is available: Section 13A-3-23 expressly authorizes pretrial immunity and dismissal. Under the statutory versions governing this case, § 13A-3-27 supplies a defense, not that independent immunity remedy.
3. What triggers defensive deadly force: Section 13A-3-23(a)(1) refers to reasonably perceived unlawful deadly force, whereas § 13A-3-27(b)(2) does not contain that qualifier. Section 13A-3-23 also supplies additional predicates, including reasonably perceived imminent first- or second-degree assault.

Because these differences affect both entitlement and procedure, the lower courts could not substitute the peace-officer framework for the defense-of-persons analysis. Marquette established a clear legal right to application of the correct statute, but not an established right to immediate dismissal.

The Court therefore required a new circuit-court order applying § 13A-3-23. Justice Parker’s opinion was joined by Justices Wise, Bryan, Sellers, and Cook. Chief Justice Stewart and Justice Shaw concurred in the result. Justice Mendheim dissented, joined by Justice McCool.

4. Legal Reasoning

A. Statutory protection depends on the particular justification invoked

Alabama’s Criminal Code recognizes several justifications for force, including parental discipline, protection of premises or property, execution of public duties, and law-enforcement activities. Section 13A-3-21 generally makes such justifications defenses unless another provision expressly supplies different protection.

Section 13A-3-23 supplies that additional protection. A person whose force was justified and permitted under that section may obtain immunity from criminal prosecution and civil action, subject to its terms. Its pretrial procedure requires the defendant to establish criminal immunity by a preponderance of the evidence. If that showing is made, the court must dismiss the criminal charges.

The majority accordingly treated the statutory cross-reference—force “justified and permitted in this section”—as decisive. Immunity under § 13A-3-23 depends on compliance with that section, not with a separate justification elsewhere in the Code.

B. Police status does not displace the generally available statute

The defense-of-persons statute repeatedly refers to “a person,” without excluding police officers or conditioning its availability on official capacity. A police officer can therefore invoke that statute even though another provision separately addresses police uses of force.

This defeated the lower courts’ treatment of questions about reasonable police conduct, departmental policy, investigative authority, and assistance with repossession as controlling the immunity inquiry. Those questions arose from substituting the peace-officer framework for the statute Marquette invoked.

The holding does not eliminate reasonableness from the analysis. Section 13A-3-23 itself repeatedly requires reasonable beliefs about danger and necessary force. The error was importing a distinct reasonable-police-officer standard as the governing statutory test.

Nor does the decision establish that all potentially unlawful conduct preceding a shooting is irrelevant. The statute expressly addresses unlawful activity, lawful presence, provocation, and aggression. Those statutory requirements remain operative; an inquiry into them is different from making compliance with police authority or departmental policy an independent condition of defense-of-persons immunity.

C. Immunity is procedurally different from a trial defense

Under the governing versions, the peace-officer statute could support a justification defense at trial but did not independently authorize the requested pretrial dismissal. Section 13A-3-23 did.

This distinction matters because immunity protects against prosecution itself, not simply against an eventual conviction. An erroneous denial can therefore require intervention before trial. Conversely, failing to establish immunity does not eliminate the defendant’s opportunity to present self-defense or defense of another at trial.

The burden at the immunity hearing is also distinct from the trial burden. Marquette must prove immunity by a preponderance of the evidence. Under § 13A-3-23(d)(4), if immunity is denied and the defense is later raised at trial, the State continues to bear the burden of proving the elements of the charged conduct beyond a reasonable doubt.

D. The threatened force’s unlawfulness requires attention

Section 13A-3-23(a)(1) concerns a reasonable belief that another person is using or about to use unlawful deadly physical force. The circuit court had not examined the lawfulness of Perkins’s threatened force against Combs because it believed the other statute governed.

The majority also identified § 13A-3-23(a)(3), concerning specified serious offenses, as potentially relevant. In this case, that required considering whether Marquette reasonably believed Perkins was committing or about to commit first- or second-degree assault against Combs.

These are unresolved inquiries, not appellate findings that Perkins’s conduct was unlawful or that either statutory predicate was established. The Court likewise did not decide the legality of the attempted repossession or the parties’ underlying property rights.

5. The Four-Step Framework for Reconsidering Immunity

Step 1: Identify a statutory predicate for deadly force

The circuit court must determine whether the evidence establishes a qualifying basis under § 13A-3-23(a). The majority identified two particularly relevant possibilities: Marquette reasonably believed Perkins was using or about to use unlawful deadly force, or reasonably believed Perkins was committing or about to commit first- or second-degree assault.

The inquiry remains governed by the statutory requirements concerning reasonable belief and necessary force. The opinion does not establish an automatic entitlement to immunity whenever the other person possesses or points a firearm.

Step 2: Address retreat and stand-your-ground requirements

Under § 13A-3-23(b), a person otherwise justified in using force has no duty to retreat if the person is not engaged in unlawful activity and is somewhere the person has a right to be.

Relying on an existing Court of Criminal Appeals decision, the majority assumed that common-law retreat rules apply unless those statutory requirements are satisfied. It did not independently settle the full scope of the common-law rule. The circuit court must address the applicable retreat question on the facts and governing law.

Step 3: Consider statutory disqualifications

Section 13A-3-23(c) excludes justification in specified circumstances involving:

• Provoking unlawful force with the intent to cause physical injury or death;
• Being the initial aggressor, subject to the statutory exception for withdrawal, effective communication, and continued or threatened unlawful force by the other person; and
• Combat by agreement not specifically authorized by law.

The majority did not understand the State to rely on these exclusions, but included them to provide a complete analytical framework. It made no finding that any applied.

Step 4: Consider any other unlawfulness

Section 13A-3-23(d)(1) provides immunity unless the force was determined to be “unlawful.” The majority treated this language as requiring consideration after the preceding steps.

However, neither the parties nor the lower courts had addressed the term’s meaning in this context. The Court therefore left it largely uninterpreted. Its express limitation was that the inquiry is narrower than asking whether an officer acted unreasonably as an officer or outside official authority.

This part of the framework leaves an important question open: what independent work does “unlawful” perform after the statute’s other requirements have been satisfied? The opinion identifies the issue without resolving it.

6. Precedents Cited and Their Influence

A. Darby v. State, 383 So. 3d 691 (Ala. Crim. App. 2023)

Darby v. State was the principal substantive precedent behind the lower courts’ approach. It addressed a requested jury instruction evaluating an officer’s force from the perspective of a reasonable police officer in the same situation, rather than relying solely on a general defense-of-persons instruction.

The Supreme Court distinguished, rather than overruled, that decision. Darby v. State involved appellate review after a final judgment and a requested instruction grounded in the peace-officer statute. Both statutory defenses could be relevant in that setting. It also acknowledged that the defense-of-persons statute applies whether the defendant is a police officer or not.

The error here was extending that officer-specific standard into a pretrial immunity claim governed by another statute. The decision thus preserves the precedent’s relevance to the peace-officer justification while rejecting its use to displace § 13A-3-23.

B. Ex parte Martin, 415 So. 3d 1014 (Ala. 2024)

Ex parte Martin supplied the demanding mandamus framework: the petitioner must establish a clear legal right, a corresponding failure to provide relief, the need for immediate intervention rather than an adequate alternative remedy, and properly invoked jurisdiction.

Only the clear-legal-right requirement was disputed here. The Court found that right at a narrower level than Marquette requested: entitlement to the correct statutory analysis, rather than established entitlement to dismissal.

C. Ex parte Perkins, 646 So. 2d 46 (Ala. 1994)

Ex parte Perkins established the remedial restraint central to the result: a trial court’s clear use of the wrong law does not authorize an appellate court to examine the evidence in the first instance.

This principle prevented the Supreme Court from moving directly from identifying legal error to declaring Marquette immune. The necessary fact-sensitive analysis had to occur under the correct framework in the circuit court.

D. Hood v. McElroy, 127 So. 3d 325 (Ala. 2011)

The majority cited the plurality opinion in Hood v. McElroy for the proposition that mixed questions of law and fact should ordinarily be addressed first by the trial court.

Its plurality status is a qualification on the authority cited. Nevertheless, the majority used its reasoning to reinforce the decision to return the matter to the judge who had personally heard the immunity testimony, rather than resolve the remaining questions on appellate review.

E. Malone v. State, 221 So. 3d 1153 (Ala. Crim. App. 2016)

Malone v. State supplied the retreat proposition used in the second step: a defendant claiming justified deadly force must comply with common-law retreat rules unless the statutory stand-your-ground requirements apply.

The Supreme Court expressly assumed that proposition rather than independently deciding it. The opinion therefore incorporates the rule as a working premise without comprehensively resolving retreat doctrine.

F. Authorities underlying the dissent

Magers v. Alabama Women's Ctr. Reprod. Alternatives, LLC., 325 So. 3d 788 (Ala. 2020), supplied Justice Mendheim’s central objection: appellate courts should decide the arguments presented, not search for unasserted error or construct arguments for a party. He viewed the majority’s distinction between the two statutory standards as a theory neither party had advanced.

Ex parte Integon Corp., 672 So. 2d 497 (Ala. 1995), supplied the dissent’s formulation of the clear-legal-right requirement. Justice Mendheim would have examined whether Marquette demonstrated entitlement to an order declaring immunity on the arguments actually presented to the circuit court.

Kyser v. State, 513 So. 2d 68 (Ala. Crim. App. 1987), and Bigham v. State, 203 Ala. 162, 82 So. 192 (1919), appeared in the dissent’s footnote concerning Marquette’s argument that retreat would actually or reasonably appear to increase his peril. The dissent observed that he had not made that argument to the circuit court. These authorities therefore illustrated a preservation concern; the majority did not use them to decide whether Marquette had a duty to retreat.

7. The Dissent: Party Presentation and Appellate Restraint

Justice Mendheim emphasized that both parties had invoked § 13A-3-23 while arguing for evaluation from a reasonable police officer’s perspective under Darby v. State. In his view, neither party had asked the Supreme Court to reject that perspective or return the matter for a new immunity order.

He also questioned whether treating an officer like a layperson overlooked special training, knowledge, duties, and rights relevant to assessing the encounter. That was the dissent’s characterization of the majority’s approach; the majority did not separately resolve every possible role that an officer’s knowledge or experience might play within § 13A-3-23’s reasonable-belief inquiry.

The disagreement therefore extended beyond statutory interpretation to judicial method. The majority corrected what it regarded as a threshold legal error and left factual application to the trial court. The dissent believed the Court should decide whether the arguments actually preserved and presented established the requested right to immunity.

The dissent did not itself conclusively determine that Marquette was or was not immune. Its objection concerned the majority’s analytical route and remedy.

8. Potential Impact

Separate statutory tracks for police defendants

Courts applying the statutory versions addressed here must distinguish a police defendant’s defense-of-persons immunity claim from any peace-officer justification. Police status does not remove a defendant from the generally available immunity statute, but it also does not establish immunity automatically.

More focused pretrial findings

The four-step framework should encourage orders addressing the statutory predicates, retreat, exclusions, and any remaining unlawfulness separately. This makes appellate review more precise and reduces the risk that broad conclusions about police conduct will substitute for statutory findings.

Preserved importance of trial-level factfinding

The remedy illustrates a distinction useful beyond use-of-force litigation: a clear legal error may justify appellate intervention without establishing the ultimate substantive entitlement. Correcting the governing law does not authorize an appellate court to replace the trial court’s initial factual evaluation.

Continuing uncertainty and limited reach

Future litigation may address the residual meaning of “unlawful,” the interaction between the two justification statutes at trial, and the proper treatment of officer-specific knowledge within the general statute. Those questions were not comprehensively settled here.

The decision also does not adjudicate federal constitutional standards, civil damages, other police-immunity doctrines, or the consequences of the later statutory amendments. Although § 13A-3-23 refers to civil immunity, the proceeding concerned a criminal indictment.

9. Complex Concepts Simplified

Justification

A legal rule allowing force in circumstances where it would otherwise be criminal, such as reasonably necessary defense against qualifying unlawful force.

Immunity versus a defense

Immunity can stop a prosecution before trial. A defense allows the accused to contest criminal liability at trial. The distinction determines both procedure and available relief.

Preponderance of the evidence

The defendant must show that entitlement to immunity is more likely than not. This differs from the State’s much higher trial burden of proof beyond a reasonable doubt.

Mandamus

An extraordinary order directing a lower court to perform a clear legal duty. Here, it required application of the correct statute, not dismissal of the prosecution.

Stand your ground

A rule removing the duty to retreat when statutory conditions are met. It does not independently authorize force or excuse failure to satisfy the other requirements for justification.

Mixed question of law and fact

A question requiring application of legal standards to particular events—for example, whether the circumstances supported a reasonable belief that unlawful deadly force was imminent.

Issue preservation

The requirement, emphasized by the dissent, that arguments ordinarily be raised in the trial court before they become grounds for appellate relief.

10. Conclusion

Ex parte Mac Bailey Marquette establishes that a police officer’s pretrial immunity claim under § 13A-3-23 must be decided under that statute’s requirements, not by substituting the separate peace-officer justification.

Its immediate effect is reconsideration, not exoneration: the circuit court must vacate its prior order and decide immunity under the correct framework. Its broader significance lies in preserving the distinction between immunity and a trial defense, enforcing statutory boundaries, and leaving unresolved factual determinations to the court that heard the evidence.