11th Circuit Allows Malicious Prosecution Suit Against Alabama Deputy to Proceed

ATLANTA (LN) — The 11th Circuit affirmed the denial of a motion to dismiss a malicious prosecution claim against an Alabama deputy sheriff, ruling that allegations he acted with personal animus and outside the scope of his employment allow the suit to proceed.

The court rejected Deputy Kevin Emberg’s argument that he is entitled to state sovereign immunity as a constitutional officer’s alter ego, distinguishing his case from prior Alabama Supreme Court precedent that broadly shields deputies.

Instead, the panel relied on Ex parte Haralson, finding it plausible that Emberg departed from his duties when he arrested Chantele and Jeremy Foster based on alleged fabricated grounds and personal motives.

The dispute began on October 14, 2020, when the Fosters, a married couple residing in Walker County, returned home after canceling dinner plans due to an argument.

Ms. Foster, a paralegal, told her husband her authorized service weapon did not scare her. One of her sons called 911, but she later told the operator all was well and attempted to leave with her children.

Four sheriff’s patrol cars blocked her driveway. Deputy Emberg, the senior deputy, told Ms. Foster they were not leaving because of a domestic call involving a weapon.

According to the Fosters’ amended complaint, Emberg appeared agitated, believed Ms. Foster was the aggressor, and ordered her to leave or face jail.

Emberg did not file a report as required by department policy. Deputy Legg, a junior deputy, turned off his body camera inside the house and apologized for Emberg’s behavior.

The next day, the couple separated. Ms. Foster contacted a friend at the city police department who informed her Emberg should have filed a report. She left a message for Emberg’s commanding officer, Captain Shane Taylor.

On October 16, 2020, Deputy Legg visited the Fosters’ home to make a report. Later that evening, Ms. Foster called 911 when she saw Mr. Foster preparing to take a lawnmower from the house.

She asked for Deputy Legg but was told Emberg was on the way. She told the operator she did not want Emberg on her property and ended the call.

Emberg and Legg arrived. Emberg overheard Ms. Foster on the phone with her mother saying Mr. Foster wanted to stay married but she did not.

Ms. Foster alleged Emberg told her she should not have called 911 because the situation was civil. When she mentioned Legg had told her to call him with problems, Emberg chastised Legg.

Mr. Foster told Emberg Ms. Foster was filing a complaint because he “bullied” her. Emberg responded, “oh really,” and arrested Ms. Foster.

Emberg ordered Legg to arrest Mr. Foster as well. The Fosters were transported to the county jail, where a senior investigator argued with Emberg about the wrongful arrests.

The Fosters were released on a signature bond the next day. Emberg filed criminal charges against them for domestic violence/harassment.

The charges were dismissed with prejudice after a hearing where Emberg explained his version of events.

The Fosters then filed a § 1983 complaint against Emberg individually, alleging he acted with personal animus.

Emberg appealed the denial of his motion to dismiss, arguing deputy sheriffs are immune from suit to the same extent as sheriffs under Alabama law.

The 11th Circuit acknowledged the district court relied on Ex parte Pinkard, which dealt with a state employee whose position was created by legislative enactment, not a deputy sheriff.

However, the panel concluded the result would be the same under the correct standard, citing the Alabama Supreme Court’s 2025 decision in Ex parte Underwood.

Underwood reiterated that deputy sheriffs are immune from suit for acts within the line and scope of employment but noted the plaintiff’s complaint did not suggest the deputy acted pursuant to a personal motive.

The 11th Circuit found Underwood distinguishable because the Fosters alleged Emberg acted outside the scope of his employment with personal animus.

The court noted it is conceivable the Fosters could prove Emberg arrested them as punishment for Ms. Foster telling his supervisor he failed to file a report.

Emberg referred to the conflict as “civil” in nature, not criminal, and the Fosters alleged the arrest and charges were based on false and contrived grounds.

The 11th Circuit affirmed the district court’s order, leaving open the possibility that Emberg could file a motion for summary judgment after discovery to contest the factual allegations.

The panel included Judges Kidd, Dubina, and Wilson.