By james art 
A lawsuit against the city of Birmingham related to the 2020 death of a 5-year-old Birmingham boy who was killed in a hit-and-run while the driver was fleeing from police can proceed, according to a ruling Friday by the Alabama Supreme Court.
The justices, without ruling, rejected Birmingham’s request to overturn a lower court ruling denying immunity to police officers from being sued in the case.
But one of the judges opposed the Birmingham Police Department’s prosecution policy, saying in a special letter that it had no legal choice but to rule with the majority against the city’s request for immunity from prosecution because of the city’s policy criteria for persecution.
“In my view, this absolute policy of not pursuing fleeing drivers is deeply flawed,” Judge Greg Cook wrote, “and I am deeply concerned about the extent to which it limits the ability of BPD officers to apprehend offenders and protect public safety.”
Birmingham city officials did not immediately respond to a request for comment.
Cameryn Young, 5, died on April 1, 2020, when she was in a vehicle that was struck by Dustin Cody Martin, who police say was driving erratically on I-59/20 and fled as police pursued him in Birmingham.
Martin fled from officers when his Ford F-150 pickup struck another vehicle in which Cameryn was riding with her family at Springville Road and Roebuck Parkway, police said.
Martin then left the scene and was arrested hours later in north Birmingham.
He pleaded guilty to manslaughter in 2022 and was sentenced to 17 years in prison.
Kameryn’s family filed a wrongful-death lawsuit four years ago against Martin, his employer Procomm Advanced Quality Solutions, based in Georgia, which owns the pickup Martin was driving, and the city of Birmingham and the two officers, who are no longer on the police force.
On July 26, 2023, the city officials and police officers filed a motion for summary judgment dismissing the claims against them in the lawsuit—arguing, among other things, that they are legally exempt and on September 28, 2023, the Jefferson County Judge Javan Patton denied the city’s request.
On November 8, 2023, the city filed a writ petition with the Alabama Supreme Court, asking the Supreme Court to issue an order directing the trial court judge—Patten—to dismiss all claims against the city and grant summary judgment.
On Friday, the Supreme Court, in a 7-2 decision, denied Birmingham’s request without an opinion.
Shortly after the decision was made public, Patton scheduled a Nov. 14 scheduling conference to continue the case and said he wanted an exact trial date set.
Judge Cook, although concurring with the majority, issued a written opinion questioning the police department’s pursuit policy.
The BPD has a written policy that prohibits its officers from pursuing traffic violators, including drivers fleeing from police.
Specifically, the relevant parts of the policy state that it “shall not initiate or engage in a vehicle pursuit” when “the decision to pursue is based solely on a traffic violation or evading violation (including failure to yield or reckless driving in response to enforcement actions taken by department personnel)’.
Despite his “extraordinary concerns” about the no-pursuit policy making it difficult for officers, Judge Cook wrote, “We have no right to rewrite that policy. Any changes to this policy are the responsibility of the City of Birmingham and BPD. And any changes in state law regarding police pursuit policies (or immunity law) belong to our legislature. At this point, our court’s only role is to apply the procedural limitations of mandate review to invocation of the well-settled doctrine of peacekeeper immunity.
The plaintiffs argued that the city and employees were not entitled to immunity because they alleged that the employees violated BPD policy.
Cook wrote “specifically to express my opinion that denying the petition under the circumstances of this case might be inconsistent with the basic purpose of our doctrine of peacekeeper immunity. Here, Officers Smith and Richardson assert that they perceived a threat to public safety and made efforts to fulfill their duty to protect the public from that threat. In my view, this is precisely the conduct that peacekeeper immunity is designed to protect.
Cook also believes the court has ruled differently in similar cases.
“In cases where other Alabama municipalities have enacted guidelines—not absolute prohibitions—as to when an officer may engage in such prosecutions,” Judge Cook wrote, “our court has reached the opposite result in the immunity analysis from that, to which we reach in this case today.”
“However, due to the absolute nature of the stalking policy enacted by BPD, I am compelled to agree to dismiss the petition for a writ of mandate based on the evidence indicating that (the officers) violated the provisions of that policy,” he wrote .
“While I believe that this policy is flawed and the result it has produced may be inconsistent with the purpose of our doctrine of peacekeeper immunity, I must reluctantly agree with our court’s decision today.”