A lawsuit against the City of Birmingham involving the 2020 death of a Birmingham 5-year-old who was killed in a hit-and-run as the driver fled police can move forward, according to a ruling Friday by the Alabama Supreme Court.

Justices, without issuing an opinion, denied Birmingham’s request to reverse a lower court ruling denying police officers immunity from being sued in the case.

But one of the justices took issue with the Birmingham Police Department’s chase policy, saying in a special writing that he legally had no choice but to rule with the majority against the city’s request for immunity from prosecution because of the criteria of the city’s pursuit policy.

“In my opinion, this absolute policy of not pursuing fleeing drivers is badly misguided,” Justice Greg Cook wrote, “and I am deeply concerned with the degree to which it limits BPD police officers’ abilities to apprehend lawbreakers and protect public safety.”

City of Birmingham officials did not immediately respond to a request for comment.

Kamerynn Young, 5, died 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 evaded officers when his Ford F-150 pickup truck struck another vehicle Kamerynn was riding in with her family at Springville Road and Roebuck Parkway, police have said.

Martin then left the scene and was taken into custody hours later in north Birmingham.

He pleaded guilty to manslaughter in 2022 and was sentenced to 17 years in prison.

Kamerynn’s family filed the wrongful death lawsuit four years ago against Martin, his employer Georgia-based Procomm Advanced Quality Solutions, which owns the pickup truck Martin was driving, and the City of Birmingham and the two officers who are no longer on the force.

On July 26, 2023, the city and police officers filed a motion for summary judgment to dismiss the claims against them in the case – asserting, among other things, that they were immune from liability under statute and on Sept. 28, 2023, Jefferson County Circuit Judge Javan Patton denied the city’s motion.

On Nov. 8, 2023, the city filed a petition for writ of mandamus with the Alabama Supreme Court asking the high court to issue an order directing the trial court judge – Patton- to dismiss all claims against the city and to grant summary judgment.

On Friday, the Supreme Court in a 7-2 ruling denied Birmingham’s request without an opinion.

Shortly after the ruling was made public, Patton set a scheduling conference for Nov. 14 to proceed with the case and said he wants a firm trial date set.

Justice Cook, though he concurred with the majority, did issue a written opinion questioning the police department’s pursuit policy.

The BPD has a written policy that bars its police officers from pursuing traffic offenders, including drivers fleeing from the police.

Specifically, the relevant portions of the policy state that “will not initiate or participate in a vehicle pursuit” when “the decision to pursue is based only on a traffic violation or misdemeanor evading (including failure to yield or reckless driving in response to an enforcement action taken by Department personnel).”

Despite his “extraordinary concerns” about having a no-chase policy that hamstrings officers, Justice Cook wrote, “We have no authority to rewrite this policy. Any changes to this policy lie with the City of Birmingham and the BPD. And, any changes to state law regarding police-pursuit policies (or immunity law) lie with our Legislature. At this stage, our Court’s only role is to apply the procedural limitations of mandamus review to the invocation of the well-settled doctrine of peace-officer immunity.”

The plaintiffs have argued that the city and officers were not entitled to immunity because, they contend, the officers had violated BPD’s policy.

Cook wrote “specially to express my view that denying the petition given the circumstances in this case may be inconsistent with the underlying purpose of our peace-officer-immunity doctrine. Here, Officers Smith and Richardson contend that they observed a threat to public safety and made efforts to discharge their duty to protect the public from that threat. In my view, that is precisely the kind of conduct peace-officer immunity is designed to shield.”

Cook also believes the court has ruled differently in similar cases.

“In cases in which other Alabama municipalities have enacted guidelines – not absolute prohibitions – on when an officer may engage in such pursuits,” Justice Cook wrote, “our Court has reached the opposite result on the immunity analysis than the one we reach in this case today.”

“However, because of the absolute nature of the pursuit policy enacted by the BPD, I am constrained to concur in denying the petition for a writ of mandamus based on the evidence indicating that (the officers) violated the provisions of this policy,’’ he wrote.

“Although I believe that this policy is misguided and the outcome it has produced may be inconsistent with the purpose of our peace-officer-immunity doctrine, I must reluctantly concur with our Court’s decision today.”