Massasoit v. Carter ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1929
CODY HASTINGS MASSASOIT, Executor for Tallas
Hastings Tomeny, Deceased; STEPHEN PHELPS,
Plaintiffs - Appellees,
versus
LANE CARTER, Sheriff, In his official
capacity; FIDELITY AND DEPOSIT COMPANY OF
MARYLAND; RANDALL BUTLER, Deputy, In his
individual and official capacity,
Defendants - Appellants,
and
MOORE COUNTY SHERIFF DEPARTMENT,
Defendant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Russell A. Eliason,
Magistrate Judge. (1:04-cv-00151)
Argued: September 27, 2007 Decided: November 15, 2007
Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Samuel G. WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE &
RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellants.
Stewart Wayne Fisher, GLENN, MILLS & FISHER, Durham, North
Carolina; Robert Mauldin Elliot, ELLIOT, PISHKO & MORGAN, P.A.,
Winston-Salem, North Carolina, for Appellees. ON BRIEF: Bradley O.
Wood, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem,
North Carolina, for Appellants. Carlos E. Mahoney, GLENN, MILLS &
FISHER, P.A., Durham, North Carolina, for Appellee Stephen Phelps.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
During a traffic stop, Moore County (N.C.) Deputy Sheriff
Randall Butler shot and killed Tallas Tomeny and shot and seriously
wounded Stephen Phelps. Phelps and Tomeny’s estate (collectively,
“appellees”) filed an action under 42 U.S.C. § 1983 and North
Carolina state law against Butler, Lane Carter, and Fidelity and
Deposit Company of Maryland (“Fidelity”) (collectively,
“appellants”).* The appellants moved for summary judgment, arguing
that Butler’s actions were (1) reasonable or, alternatively, (2)
protected by qualified immunity. The district court denied the
motion, and the appellants now appeal. Finding no error, we
affirm.
I
In their complaint, the appellants claim that (1) Butler
violated their right to be free from the use of excessive force and
(2) Carter and Fidelity have derivative liability for Butler’s
actions. The appellees moved for summary judgment, arguing that
(1) Butler’s use of force was reasonable because he had probable
cause to believe that the appellants posed a serious threat to
Butler’s safety or the safety of others, or alternatively, (2) if
Butler’s use of force was unreasonable, he is nonetheless entitled
to qualified immunity because the right violated was not “clearly
*
Carter is the sheriff of Moore County and Fidelity is the
surety on Carter’s bond, which North Carolina law requires that
sheriffs purchase. N.C. Gen. Stat. § 162-8.
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established.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see
Tennessee v. Garner, 471 U.S. 1, 11 (1985). The district court
denied the appellants’ motion because the appellees’ version of the
facts would not entitle the appellants to summary judgment on
either the question of reasonableness or qualified immunity.
We review de novo the district court’s denial of a motion for
summary judgment. Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.
2007). On a motion for summary judgment, we view the facts in the
light most favorable to the non-moving party. See Scott v. Harris,
127 S. Ct. 1769, 1776 (2007). Under this standard, the record
indicates the following facts.
As part of their training for the Green Beret Special Forces,
Tomeny and Phelps participated in an exercise termed “Operation
Robin Sage.” Operation Robin Sage has been conducted for over
forty years in and around Moore County. During the exercise,
soldiers join with civilian volunteers to overthrow the government
of the fictional country of “Pineland.” The soldiers must
accomplish their mission, avoid capture, and maintain their roles
throughout the exercise.
On February 23, 2002, civilian volunteer Charles Leiber drove
a Ford Ranger pick-up truck with Tomeny in the passenger seat and
Phelps in the truck bed. Tomeny possessed a bag, which contained
an M-4 assault rifle. While on patrol, Butler pulled over the
pick-up truck because he felt the occupants’ behavior indicated
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that they might be searching for robbery targets. Butler led
Leiber to his patrol car for questioning. After leaving Leiber in
the patrol car, Butler led Tomeny from the pick-up truck passenger
seat to the truck bed so that he could search Tomeny’s bag. Butler
never saw the gun in the bag because the compartment containing the
gun remained closed. During the search, Tomeny and Butler tussled
for the bag. Butler pushed Tomeny away and threw the bag to one
side. Tomeny raised his hands and did not bump Butler or reach for
Butler’s service weapon. Butler drew his service weapon with the
safety off. Then, Butler reholstered his service weapon and
sprayed Tomeny in the eyes with pepper spray until the pepper spray
appeared to run out. Tomeny yelled and screamed when sprayed, but
did not threaten Butler with physical force. As Tomeny rubbed his
eyes from the pepper spray with both hands at his head, Butler
pulled his service weapon and shot Tomeny twice. While Butler
pepper sprayed Tomeny, Phelps fled the pick-up truck bed, grabbed
the bag, and ran toward the woods. As he was running, Phelps heard
the shots fired at Tomeny and turned suddenly. Because of the wet
pavement, Phelps slipped and fell to his hands and knees. Phelps
did not attempt to open the bag. Without warning Phelps, Butler
shot him twice.
Under these facts, which we reiterate are in the light most
favorable to Tomeny and Phelps, Butler’s actions were (1) neither
reasonable because he had insufficient justification for his use of
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deadly force, (2) nor protected by qualified immunity because, at
the time of the shootings, it was clearly established that the use
of deadly force was not justified under these facts. Accordingly,
we affirm the decision of the district court. Massasoit v. Carter,
439 F. Supp. 2d 463 (M.D.N.C. 2006).
AFFIRMED
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