Mills v. Duke Univ.

NO. COA13-1164
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
WILLIAM S. MILLS, Ancillary
Administrator of the Estate of
AARON LORENZO DORSEY, Deceased,
Plaintiff-Appellant,
v. Durham County
No. 11 CVS 004886
DUKE UNIVERSITY, a Not for Profit
Corporation, LARRY CARTER, and
JEFFREY LIBERTO, Jointly and
Severally,
Defendants-Appellees.
Appeal by Plaintiff from judgment entered 6 June 2013 by
Judge Paul G. Gessner in Superior Court, Durham County. Heard
in the Court of Appeals 17 March 2014.
Law Office of Michael R. Dezsi, PLLC, by Michael R. Dezsi,
pro hac vice; and Tin Fulton Walker & Owen, PLLC, by Adam
Stein, for Plaintiff-Appellant.
Cranfill Sumner & Hartzog, LLP, by Dan M. Hartzog and Katie
Weaver Hartzog, for Defendants-Appellees.
McGEE, Judge.
Aaron Lorenzo Dorsey (“Mr. Dorsey”) was shot and killed by
a Duke University Police officer at approximately 1:00 a.m. on
13 March 2010, just outside the main entrance to Duke University
Hospital in Durham (“the hospital”). When the shooting
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occurred, Preston Locklear was being treated for a serious
injury in the intensive care unit of the hospital. A number of
members of Preston Locklear’s family (“the Locklear family”)
were at the hospital that morning visiting him. The Locklear
family members included: Charles Brayboy, Krecia Ann Brayboy,
Alena Hull, Christine Locklear, Debbie Locklear, Justin
Locklear, Shawn Locklear, Lenora Locklear, and Billie Jo
Locklear.
In his deposition, Mondrez Pamplin (“Mr. Pamplin”),
testified that he was a hospital security guard working in the
front lobby of the hospital on the night shift between 12 and 13
March 2010. Shortly before 1:00 a.m. on 13 March 2010, a member
of the Locklear family approached him to complain about a man
panhandling near the entrance of the hospital. Mr. Pamplin went
outside and saw Mr. Dorsey. He asked Mr. Dorsey if he was
visiting someone in the hospital, and Mr. Dorsey replied that he
was not. Mr. Pamplin then suggested to Mr. Dorsey that he leave
Duke University property. Mr. Dorsey did not leave, so Mr.
Pamplin contacted Duke University Police to report Mr. Dorsey as
a suspicious person. Duke University Police officers Larry
Carter (“Officer Carter”) and Jeffrey Liberto (“Officer
Liberto”) (together, “the officers”) responded, arriving at the
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entrance of the hospital shortly after 1:00 a.m. Mr. Pamplin
asked the officers to “check [Mr. Dorsey] out.”
The officers approached Mr. Dorsey and asked for
identification. Mr. Dorsey turned away from the officers and
started walking away. At this point, according to the officers’
testimony, Officer Liberto grabbed Mr. Dorsey and a struggle
ensued. Officer Carter went to assist Officer Liberto, and Mr.
Dorsey grabbed Officer Carter’s holstered weapon and attempted
to remove it from Officer Carter’s holster. Officer Carter
pressed down on Mr. Dorsey’s hand or hands, attempting to
prevent Mr. Dorsey from obtaining the weapon. Officer Carter
was yelling: “He’s got my gun. He’s getting my gun.” Officer
Liberto let go of Mr. Dorsey and first began hitting Mr. Dorsey
with his fists and then with his police baton. Officer Carter
ended up struggling with Mr. Dorsey on the ground. Officer
Liberto repeatedly asked if Mr. Dorsey had Officer Carter’s gun,
and both officers commanded Mr. Dorsey to let go of the weapon.
Some members of the Locklear family testified by deposition
that they saw Mr. Dorsey grab Officer Carter’s weapon and
struggle with Officer Carter in an attempt to take that weapon.
Other members of the Locklear family testified they could not
see Mr. Dorsey’s hands and, therefore, could not say if Mr.
Dorsey was grabbing Officer Carter’s weapon. However, they did
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hear someone yelling things like: “He’s grabbed the gun[,]”
“[l]et go; let go; let go,” and “let go of the gun.” Some of the
Locklear family deposition testimony differed from State Bureau of
Investigation (“SBI”) reports written after SBI agents had interviewed
those family members immediately following the shooting. The
officers were not able to subdue Mr. Dorsey and, at some point
during the struggle, Officer Liberto drew his service weapon and
shot Mr. Dorsey in the head at close range. Mr. Dorsey died at
the scene.
This action was filed on 16 September 2011 by William S.
Mills, administrator of Mr. Dorsey’s estate (“Plaintiff”).
Plaintiff’s complaint named as defendants Duke University
(“Duke”), Officer Carter, and Officer Liberto (together,
“Defendants”). Plaintiff’s complaint included as causes of
action: (1) wrongful death/negligence, (2) wrongful
death/assault and battery, and (3) wrongful death/willful and
wanton conduct. Defendants filed a motion for summary judgment
on 2 May 2013, alleging that the officers: (1) were “legally
justified in using reasonable force to protect the lives and
safety of themselves and other innocent bystanders[,]” (2) were
“entitled to public official immunity[,]” (3) “acted reasonably
at all times and there [was] no negligence or other grounds for
liability which can be imputed to Duke[,]” (4) committed no acts
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justifying punitive damages, and (5) that “[Mr.] Dorsey’s
actions at the time of the incident . . . were the sole
proximate cause of his death and constitute contributory
negligence[.]”
The trial court entered judgment on 6 June 2013 granting
summary judgment in favor of Defendants on all claims, and
dismissing the action with prejudice. Plaintiff appeals. There
are additional relevant facts that will be discussed in the body
of the opinion.
I.
Plaintiff argues that the trial court erred in granting
summary judgment in favor of Defendants. We disagree.
We first note that all Plaintiff’s arguments on appeal
concern Officers Carter and Liberto in their individual
capacities, and that Plaintiff does not argue that summary
judgment, with respect to Duke, was improper. Therefore,
summary judgment in favor of Duke is affirmed. Likewise, to the
extent, if any, that Plaintiff’s complaint contained claims
against Officers Carter and Liberto in their official
capacities, summary judgment on those claims is affirmed.
Summary judgment is proper only “‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
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genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.’” Liberty Mut. Ins.
Co. v. Pennington, 356 N.C. 571, 578-79, 573 S.E.2d 118, 123
(2002) (citation omitted).
This Court has recognized that deciding what
constitutes a bona fide issue of material
fact is seldom an easy task. Nonetheless,
we have instructed that “an issue is genuine
if it is supported by substantial evidence,”
which is that amount of relevant evidence
necessary to persuade a reasonable mind to
accept a conclusion. Further, we have said
that “[a]n issue is material if the facts
alleged would constitute a legal defense, or
would affect the result of the action, or if
its resolution would prevent the party
against whom it is resolved from prevailing
in the action.” The party seeking summary
judgment bears the initial burden of
demonstrating the absence of a genuine issue
of material fact. If the movant
successfully makes such a showing, the
burden then shifts to the nonmovant to come
forward with specific facts establishing the
presence of a genuine factual dispute for
trial. “When considering a motion for
summary judgment, the trial judge must view
the presented evidence in a light most
favorable to the nonmoving party.” “All
inferences of fact must be drawn against the
movant and in favor of the nonmovant.”
Id. at 578-79, 573 S.E.2d at 123-24 (citations omitted).
II.
We must first address whether Officers Carter and Liberto
are protected by public official immunity. “‘[P]ublic officials
cannot be held individually liable for damages caused by mere
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negligence in the performance of their governmental or
discretionary duties.’ Police officers are public officials.”
Clayton v. Branson, 153 N.C. App. 488, 492, 570 S.E.2d 253, 256
(2002) (citations omitted). “A public official can be held
individually liable if it is prove[n] that his act, or failure
to act, was corrupt or malicious, or that he acted outside of
and beyond the scope of his duties.” Id. (citation and
quotation marks omitted).
Plaintiff contends that the officers cannot be covered by
public official immunity because they were hired by, and were
working for, a private institution – Duke University. We
disagree.
“[A] policeman is an officer of the State.” State v. Hord,
264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965) (citations
omitted). “It is not the method by which a policeman becomes a
member of the police force of a municipality that determines his
status but the nature and extent of his duties and
responsibilities with which he is charged under the law.” Id.“To constitute an office, as distinguished from employment, it
is essential that the position must have been created by the
constitution or statutes of the sovereignty, or that the
sovereign power shall have delegated to an inferior body the
right to create the position in question.” Id. “An essential
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difference between a public office and mere employment is the
fact that the duties of the incumbent of an office shall involve
the exercise of some portion of the sovereign power.” Id.; see
also State v. Ferebee, 177 N.C. App. 785, 788, 630 S.E.2d 460,
462 (2006) (citation omitted) (“Under . . . the Campus Police
Act, campus police officers have the same statutory authority
granted to municipal and county police officers to make arrests
for both felonies and misdemeanors and to charge for infractions
within their jurisdictions. As such, they qualify as ‘public
officers’ pursuant to N.C. Gen. Stat. § 14–223.”).
Our General Assembly granted certain private universities
the power to create campus police agencies through the enactment
of Chapter 74G, the Campus Police Act. N.C. Gen. Stat. §§ 74G-1
to 13 (2013). “As part of the Campus Police Program, the
Attorney General is given the authority to certify a private,
nonprofit institution of higher education . . . as a campus
police agency and to commission an individual as a campus police
officer.” N.C.G.S. § 74G-2(a). “The principal State power
conferred on campus police by this Chapter is the power of
arrest[.]” N.C.G.S. § 74G-2(b)(6). “In exercising the power of
arrest, these officers apply standards established by State and
federal law only[.]” N.C.G.S. § 74G-2(b)(8). “Campus police
officers, while in the performance of their duties of
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employment, have the same powers as municipal and county police
officers to make arrests for both felonies and misdemeanors and
to charge for infractions” on campus and other property as
allowed by the Campus Police Act. N.C.G.S. § 74G-6(b).
It is clear that campus police such as Officers Carter and
Liberto, like municipal police officers, act pursuant to
authority granted by our General Assembly, and that their duties
involve “the exercise of some portion of the sovereign power.”
Hord, 264 N.C. at 155, 141 S.E.2d at 245. We hold that Officers
Carter and Liberto are entitled to public official immunity for
their acts in furtherance of their official duties so long as
those acts were not corrupt, malicious, or outside of and beyond
the scope of their duties. Clayton, 153 N.C. App. at 492, 570
S.E.2d at 256.
III.
Plaintiff first contends there existed “genuine issues of
material fact such that summary judgment was improper.” All
three of Plaintiff’s claims were for wrongful death.
Specifically, Plaintiff argues:
A genuine issue of fact clearly exists here,
where one witness is claiming that Mr.
Dorsey had a hold of Officer Carter’s gun
throughout the entire duration of the
struggle, which was said to last more than
three minutes, and where several other
witnesses, those who were in close proximity
to the events, testified that Mr. Dorsey did
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not, at any time, reach for or grab Officer
Carter’s gun. The contradictory nature of
the testimony of these witnesses is simply
too glaring.
Plaintiff contends in his brief that the deposition
testimony of Mr. Pamplin, Duke security guard Mark Golby, and
Christine Locklear support the above argument. However, none of
these witnesses testified that: “[Mr.] Dorsey did not, at any
time, reach for or grab Officer Carter’s gun.” None of these
witnesses testified in any manner to even a suspicion that Mr.
Dorsey never grabbed Officer Carter’s gun. These witnesses
testified that, from where they were located during the
incident, they could not see Mr. Dorsey’s hands or Officer
Carter’s weapon. Because they could not see what was happening
with Officer Carter’s weapon during the struggle, they could not
honestly state that they ever saw Mr. Dorsey grab Officer
Carter’s weapon. They did, however, provide the following
testimony.
Mr. Pamplin testified, inter alia, that during the several-
minute struggle, he heard the officers yell “[s]top
resisting[,]” heard Officer Carter say: “He has my gun[,]” saw
Officer Carter and Mr. Dorsey struggling ‒ both standing up and
on the ground ‒ and heard the officers repeatedly command Mr.
Dorsey to: “Let go of the gun; let go of the gun.” When Mr.
Pamplin was asked if he had “any reason to doubt that Mr. Dorsey
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was holding the gun,” he answered: “No.” When asked if he
thought Mr. Dorsey did grab Officer Carter’s weapon, he
answered: “Yes.” Mr. Pamplin’s testimony was generally
consistent with that of both Officer Carter and Officer Liberto.
This testimony is directly contrary to the following statement
made by Plaintiff in his brief: “[Mr.] Pamplin testified that
. . . Officer Carter yelled to Officer Liberto that Mr. Dorsey
had a hold of Officer Carter’s weapon, although [Mr.] Pamplin
denied that Mr. Dorsey ever actually had a hold of Officer
Carter’s gun. (Pamplin Dep., p. 45).” (Emphasis added).
Nowhere on page forty-five ‒ or anywhere else in Mr. Pamplin’s
deposition ‒ does he testify that Mr. Dorsey never “had a hold”
of Officer Carter’s weapon.
In his deposition, Duke security guard Mark Golby (“Mr.
Golby”), testified as follows:
Q. Okay. You gave some testimony in which
you said you never saw [Mr.] Dorsey’s hands
on the gun; you never saw those sorts of
things. From [where] you were standing, you
were not able to see [Officer] Carter’s gun,
were you?
A No.
Q. And you were not able to see [Mr.]
Dorsey’s hands or [Officer] Carter’s hands
at that time, were you?
A. No, I couldn’t see.
Q. So when you’re saying you never saw
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this, what you’re really saying is you
couldn’t see it?
A. Right.
Mr. Golby further testified that, during the struggle,
Officer Carter said Mr. Dorsey had a hold of Officer Carter’s
weapon, that Officer Liberto told Mr. Dorsey several times to
let go of the weapon, and that Officer Liberto finally told Mr.
Dorsey that if he did not release the weapon, Officer Liberto
would shoot him. Nowhere did Mr. Golby indicate that Mr. Dorsey
did not reach for or grab Officer Carter’s weapon. Mr. Golby’s
deposition testimony is generally consistent with that of both
Officer Carter and Officer Liberto.
Christine Locklear testified she saw the officers talking
to Mr. Dorsey, but did not hear what was said. She saw them
begin to scuffle and saw Mr. Dorsey and Officer Carter fall to
the ground. She then went inside the hospital, and was inside
when the shot was fired. As she was about to enter the
hospital, immediately before she heard the shot, she “heard
somebody say ‘he’s got his hands on the [weapon.]’” At
Christine Locklear’s deposition, when asked, she agreed she did
not “know whether or not Mr. Dorsey got his hand on the
officer’s weapon[,]” she “just didn’t see that[,] . . . if when
he fell, that was going on – if when he fell that Mr. Dorsey did
reach for it, I did not see it. Honey, I got away from that.”
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Christine Locklear did not say it did not happen. Plaintiff’s
attorney asked her if, when Mr. Dorsey and the officers were
struggling on the ground, she thought “that Mr. Dorsey presented
a serious risk of harm to the police officers?” She answered:
I did. . . . I thought he could have
grabbed his gun. . . . I mean, it was like
he got in a rage or something when they
asked him. You know, or I assumed they
asked him to leave the premises, and it was
like he got in a rage and real angry, I
mean, just because of the assumptions or
whatever. He was real, real upset. He was
really angry.
Christine Locklear testified that, immediately after the
shooting, she heard people talking about what had just happened,
and she heard people saying things like:
Yeah, that he did grab the Law’s gun and
that’s the reason and I heard that – I
assumed that the white man did hit him with
the baton to get him off the Law but no way
– I mean, it was said that he was beat with
the baton, and he would not let go of the
officer’s gun that he had; so after [the
officer] beat [him] so long and he wouldn’t
let go, that’s when, I reckon, they drew the
gun. And it was said that, you know, they
told him to let go and he wouldn’t and so he
shot him.
Christine Locklear stated she didn’t specifically remember if
any of her family members said they saw Mr. Dorsey grab the gun.
Nowhere in the testimony of Mr. Pamplin, Mr. Golby, or Christine
Locklear did either of them state that Mr. Dorsey did not grab
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Officer Carter’s weapon, or that they believed Mr. Dorsey never
grabbed Officer Carter’s weapon.
Multiple other witnesses testified by deposition that they
did see Mr. Dorsey attempting to take Officer Carter’s weapon
from Officer Carter’s holster. Alena Hull (“Ms. Hull”)
testified:
A And they went to fighting and stuff, and
the black officer [Carter], he was down on
the ground; but the white officer [Liberto],
now, he had out his gun.
. . . .
A And telling the boy [Mr. Dorsey] to give
up – he kept telling the boy to give up
because they were already fighting him and
beating him and he never would give up, and
the black Law and him, they went down to the
ground; and he had his hand on the Law’s
pistol.
Q Okay. Who did?
A The guy that was shot.
. . . .
Q Okay. When you saw that, did you think
he [Mr. Dorsey] was trying to take [Officer
Carter’s] gun?
A Yes, sir because he was in a rage.
. . . .
A My opinion, the black guy that was down
on the ground and the one that was shot, the
white officer had no other choice but to
shoot him where he shot, being honest,
because if he would have done anything else,
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he would have shot the other officer.
. . . .
A He was hitting him in his back, his head,
[with what looked like a “blackjack”] and he
never would turn loose.
It is true that a report made by SBI Special Agent B.S.
Fleming following an on-site interview with Ms. Hull shortly
after the incident does not include the same detail. According
to Agent Fleming’s report, Ms. Hull told him “she heard someone
scream that someone had a gun[,]” saw two officers fighting with
a man, and saw a white officer with his weapon drawn. According
to this report, Ms. Hull could not see what was happening with
Officer Carter’s weapon or Mr. Dorsey’s hands.
Krecia Ann Brayboy (“Ms. Brayboy”) testified that Mr.
Dorsey grabbed the black officer’s weapon with his right hand
and she thought at that time the black officer “threw his hand
on top of [Mr. Dorsey’s] hand trying to keep [Mr. Dorsey] from
pulling [the officer’s weapon]; getting it out of [the
holster].” Ms. Brayboy testified,
to me, if he would have fired anywhere else
below the shoulders, the black officer would
have gotten shot. . . . . Truthfully, to
be honest, I’m sorry for what happened, but
the officer really had no other choice
because if this man would have gotten this
weapon unhooked, it would have been chaos
there. There isn’t any telling who all
would have been killed[.]
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Ms. Brayboy heard the white officer saying: “Let it go, let it
go. Let it go, let it go.” Further, according to Ms. Brayboy,
Mr. Dorsey
just would not let that weapon go. . . . .
[t]hey could not get him to break that grip.
. . . . All I know is Mr. Dorsey had a grip
of that man’s weapon and would not let go.
They begged and begged and begged this man
to let this weapon go and he wouldn’t.
Ms. Brayboy admitted she had withheld most of this information
from the SBI agent who interviewed her on the night of the
incident; instead, stating that she had been inside at the time
and had not seen anything.
Charles Brayboy (“Mr. Brayboy”) testified that Mr. Dorsey
grabbed Officer Carter’s weapon and would not let it go.
I don’t know how in the world [Officer
Carter] held onto that guy and held his
hand. The cop was telling him to let it go,
man; let it go. . . . . He begged him,
man. He begged him to let it go, man. He
tried his best. . . . He told him to let
it go, man. He said let it go, man; let it
go; let it go, man; let it go. He didn’t
want to do it, man. . . . . I was scared
if he got that gun out, man, there wasn’t
any telling what he might have done.
Mr. Brayboy testified he had withheld information from the
original investigating officer, but, after thinking about the
situation, he realized had it been his child who had been shot,
he would have wanted to know why it happened.
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Debbie Locklear first told investigators she saw the
officers struggling with Mr. Dorsey, and heard them yelling,
“‘put it down’ and ‘let it go’ over and over again.” She told
investigators she did not see what was in Mr. Dorsey’s hands.
In her opinion, the officers “did what they had to do” because
Mr. Dorsey “refused to surrender” and the officers were “in
danger.” In her deposition testimony, Debbie Locklear stated:
[Mr. Dorsey] was very, very – he was on
something. This black guy, his eye balls
were that big. They tussled. They fought.
They tussled. I mean, they had a black –
some kind of thing. I mean, they were just
trying to make him – you know. When he got
his hand on that gun – his gun was in the
holster. The black guy got his hand on that
gun and would not let that gun go, and when
I gave this statement, I was throwing up. I
was so disgusted. I was scared, crying, and
everything else, and when you get in a state
of mind like that there and you know when
your life is on the line, too, your mind
goes blank.
Plaintiff agrees that Mr. Dorsey and Officer Carter became
engaged in a struggle; that Officer Liberto hit Mr. Dorsey
multiple times with his fist and his standard issue baton; that
Mr. Dorsey and Officer Carter fell to the ground, still locked
in a struggle; and that Officer Liberto finally drew his service
weapon and shot Mr. Dorsey in the head. Both officers testified
that Mr. Dorsey grabbed Officer Carter’s weapon and would not
let it go. They both testified that Officer Liberto attempted
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to get Mr. Dorsey to release the weapon by hitting Mr. Dorsey
with his fist. Officer Liberto testified when that did not
work, he removed his baton and began hitting Mr. Dorsey with the
baton, but that Mr. Dorsey still would not release Officer
Carter’s weapon. The officers testified that Officer Liberto
repeatedly commanded Mr. Dorsey to let go of the weapon.
According to both officers, after Officer Carter and Mr. Dorsey
fell to the ground, Officer Carter called out that Mr. Dorsey
was pulling on the weapon. Officer Carter testified that his
weapon was pulled partially out of his holster. Officer Liberto
testified that Officer Carter yelled that Mr. Dorsey was
“getting [his] gun.” Both officers testified they believed Mr.
Dorsey was an immediate threat because he was pulling on the
weapon, would not release it, and might have gained control of
it.
Plaintiff’s own expert, Francis Murphy (“Mr. Murphy”),
testified he believed Mr. Dorsey grabbed Officer Carter’s
weapon, though he believed it happened after Officer Liberto had
hit Mr. Dorsey with his fists and the baton. Mr. Murphy also
testified he believed the reason Officer Liberto shot Mr. Dorsey
“was because he was inadequately trained. He didn’t know how to
control the situation. He didn’t know how to break the
situation up.” Mr. Murphy testified he didn’t believe Officer
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Liberto wanted to shoot Mr. Dorsey; his opinion was that the
officers were trying to arrest Mr. Dorsey without legal
justification and that, due to poor training, the officers used
unnecessary force and Mr. Dorsey responded. When asked: “But
once [attempts to subdue Mr. Dorsey] had failed and they got to
this point where the deadly force appeared to be imminent to be
used against them, that’s why [Officer Liberto] shot [Mr.
Dorsey]?” Mr. Murphy replied: “Sure.”
Viewing the evidence in the light most favorable to
Plaintiff, Plaintiff provided no evidence tending to show that
Mr. Dorsey did not attempt to gain control of Officer Carter’s
weapon. “At the summary judgment stage, plaintiffs cannot rely
on the allegations of the complaint; rather, plaintiffs need to
present specific facts to support their claim.” Haynes v. B & B
Realty Grp., LLC, 179 N.C. App. 104, 109, 633 S.E.2d 691, 694
(2006) (citation omitted).
Our Supreme Court has long held:
It is axiomatic that every person has the
right to resist an unlawful arrest. In such
case the person attempting the arrest stands
in the position of a wrongdoer and may be
resisted by the use of force, as in self-
defense. True the right of a person to use
force in resisting an illegal arrest is not
unlimited. He may use only such force as
reasonably appears to be necessary to
prevent the unlawful restraint of his
liberty. And where excessive force is
exerted, the person seeking to avoid arrest
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may be convicted of assault, or even of
homicide if death ensues[.]
In applying this rule of law, this Court has
engaged in the following analytical
framework:
Since the initial arrest . . . [was]
illegal, plaintiff was entitled to use
a reasonable amount of force to resist.
Under this analysis, if the amount of
force used by plaintiff was
unreasonable . . ., then the officers
had probable cause to arrest him under
G.S. § 14–33(b)(8) [the statute
criminalizing an assault on a law
enforcement or government officer].
Moreover, the General Assembly has also
provided that an individual “is not
justified in using a deadly weapon or deadly
force to resist an arrest by a law-
enforcement officer using reasonable force,”
when the individual knows that it is a true
law enforcement officer who is attempting to
make the arrest. N.C. Gen. Stat. § 15A–
401(f)(1) (2005).
State v. Branch, 194 N.C. App. 173, 177, 669 S.E.2d 18, 20-21
(2008) (citations omitted). This Court has applied the same
analysis when reviewing detentions not amounting to arrest. Id.
at 178, 669 S.E.2d at 21.
Assuming, arguendo, the officers had no legal basis to
detain Mr. Dorsey, Mr. Dorsey was not justified to resort to
deadly force in response to that detention. Once Mr. Dorsey
grabbed Officer Carter’s weapon, he exceeded any “force as
reasonably appear[ed] to be necessary to prevent the unlawful
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restraint of his liberty.” Id. at 177, 669 S.E.2d at 20. Mr.
Dorsey’s response was excessive, and became unlawful. Id. at
177, 669 S.E.2d at 20-21. Had the officers managed to subdue
Mr. Dorsey without the use of deadly force, they could have, and
almost certainly would have, arrested Mr. Dorsey.
An officer may resort to the use of deadly force “[t]o
defend himself or a third person from what he reasonably
believes to be the use or imminent use of deadly physical
force[.]” N.C. Gen. Stat. § 15A-401(d)(2)(a) (2013). “This
portion of the statute ‘was designed solely to codify and
clarify those situations in which a police officer may use
deadly force without fear of incurring criminal or civil
liability.’” Turner v. City of Greenville, 197 N.C. App. 562,
567, 677 S.E.2d 480, 484 (2009) (citation omitted).
Although Plaintiff presented expert testimony in support of
his claim that Mr. Dorsey’s hands were not on Officer Carter’s
weapon at the time Officer Liberto shot Mr. Dorsey, “[a] public
official can [only] be held individually liable if it is
‘prove[n] that his act, or failure to act, was corrupt or
malicious, or that he acted outside of and beyond the scope of
his duties.’” Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256(citations omitted). John Eric Combs (“Mr. Combs”), an
instructor for the North Carolina Justice Academy, testified
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concerning the required “subject control and arrest techniques
lesson plan for law enforcement officers” in North Carolina.
Mr. Combs testified he did not know if Mr. Dorsey’s hands were
on the gun at the time Officer Liberto fired the shot, but it
would not have changed his opinion that Officer Liberto’s use of
deadly force was justified. Mr. Combs stated: “We specifically
teach in the subject control arrest techniques training program
that any attack that includes an attempt to disarm an officer is
a deadly force attack.” Mr. Combs was asked: “So an officer
would be entitled to counter that deadly force with the use of
deadly force?” Mr. Combs responded: “Yes, sir.” Mr. Combs
further opined: “As far as a situation where two officers are
around, an assailant grabs an officer’s weapon, my suggestion at
that point is for the other officer to do exactly what [Officer]
Liberto did and use deadly force.”
Former SBI Agent Steven Carpenter testified that in his
opinion:
Looking at all the depositions and stuff,
and applying North Carolina’s General
Statute 15a-401, they very, very early in
this struggle had every reason in the world
to believe [Mr. Dorsey] intended to take
that gun and harm somebody. They were
responsible for protecting a large number of
citizens around them that night. . . . .
As a police officer they had a
responsibility to protect those people, and,
if anything, I don’t think they reacted
quick enough to ensure that these people did
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not meet with serious injury or death.
We hold that the evidence, viewed in the light most
favorable to Plaintiff, does not show that the acts of the
officers leading to Mr. Dorsey’s death were “‘corrupt or
malicious, or . . . outside of and beyond the scope of [their]
duties.’” Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256(citations omitted). We affirm the grant of summary judgment in
favor of Officer Carter and Officer Liberto on Plaintiff’s
claims of wrongful death against the officers in their
individual capacities.
Plaintiff also argues the trial court erred in granting
summary judgment on Plaintiff’s claim of false arrest.
Plaintiff’s complaint did not contain a claim for false arrest.
Plaintiff filed a motion for leave to file first amended
complaint, adding a claim for false arrest, four days before the
hearing on Defendants’ motion for summary judgment. The trial
court heard Plaintiff’s motion after it had heard Defendants’
motion for summary judgment and, at the close of the hearing,
stated: “I’m going to take the motion to amend the complaint, as
well as the motion for summary judgment under advisement.” As
Plaintiff acknowledges in his brief, “the [trial court] failed
to rule on the motion to amend.” “[G]enerally, the failure to
obtain a ruling on a motion presented to a trial court renders
-24-
the argument raised in the motion unpreserved on appeal. See
N.C.R. App. P. 10(a)(1) (2012).” Dep't of Transp. v. Webster,
__ N.C. App. __, __, 751 S.E.2d 220, 223 (2013) disc. review
denied, __ N.C. __, 755 S.E.2d 618 (2014). The present issue
does not fall outside the general rule. Plaintiff has failed to
preserve this argument for appellate review. Id.Because of our holdings above, we do not reach Plaintiff’s
argument concerning contributory negligence.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.