LOUISE W. FLANAGAN, District Judge.
This matter is before the court on motion for summary judgment (DE 110), filed by defendants Ricky J. Spivey ("Spivey"), Casey L. Miller ("Miller"), and Joshua K. Legan ("Legan"), (collectively, "Sheriff Defendants")
Plaintiff commenced this action against Sheriff Defendants and Wake County, North Carolina on June 10, 2016, alleging various claims against the parties including: negligence, gross negligence, violation of civil rights pursuant to 42 U.S.C. §1983, suit on sheriff's bond, assault and battery, false imprisonment, malicious prosecution, and civil conspiracy. All claims stem from events that occurred on July 5, 2014, wherein, in part, defendant Spivey conducted a traffic stop of plaintiff and passenger Charles Johnson ("Johnson") and issued citations to plaintiff for traffic violations; an altercation ensued where defendant Miller shot plaintiff twice; and SheriffDefendants arrested plaintiff on various charges that were eventually dismissed, some following criminal trial.
On September 6, 2016, defendant Wake County, North Carolina voluntarily was dismissed from this case. On September 15, 2016, Sheriff Defendants filed a motion for partial judgment on the pleadings, which plaintiff responded to on October 6, 2016, also filing a motion to amend complaint, in order to join Ohio Casualty. On November 14, 2016, this court granted plaintiff's motion to amend and denied as moot Sheriff Defendants' motion for partial judgment on the pleadings. On November 23, 2016, plaintiff filed amended complaint.
On January 20, 2017, defendant Ohio Casualty filed motion to dismiss. On February 15, 2017, Sheriff Defendants filed motion for partial judgment. On September 29, 2017, the court granted in part and denied in part both Ohio Casualty's motion to dismiss and Sheriff Defendants' motion for partial judgment, finding the following claims to remain:
Plaintiff and defendants Spivey, Miller, and Legan filed consent motions for protective orders regarding production of plaintiff's tax returns and production of defendants Spivey, Miller, and Legan's personnel records, respectively. The court granted both motions on August 29, 2017. On October 16, 2017, defendants filed motion to compel, related to plaintiff's treatment at Western Wake Treatment Center, to which plaintiff responded in opposition with motion for protective order. On December 8, 2017, the court denied defendants' motion to compel and granted plaintiff's motion for protective order.
On March 28, 2018, defendants' filed the instant motion for summary judgment, relying on statement of material facts
Plaintiff filed opposition, relying on statement of material facts as well as the following: crime scene photos and drawing; illustrative demonstration videos and photos; dash cam video from patrol car of defendant Miller; various photos of the field where the alleged events took place; state bureau of investigation ("SBI") interview of defendant Legan; affidavits of James Smith, Sr., plaintiff's father in law, as well as affidavits from people who live or work in Apex, North Carolina and are familiar with defendant Spivey; expert reports of W. Ken Katsaris ("Katsaris"), Dave F. Cloutier ("Cloutier"), and Jimmy Henley, Jr. ("Henley"); arrest warrants for plaintiff; deposition excerpts including from plaintiff, Sheriff Defendants, Johnson, Cox, expert witnesses Sutton and John Combs, as well as people familiar with defendant Spivey; and excerpts from criminal trial tr., including testimony of Johnson and Sheriff Defendants.
As defendants have moved for summary judgment, the court recounts the facts in light most favorable to plaintiff except as otherwise noted below.
Plaintiff was the owner and chief operator of "Mike's Tree Service," a business which provides tree and brush removal services for customers in and around the Wake County area. (DE 111 ¶ 1; DE 115 ¶¶ 1, 107).
On July 5, 2013, plaintiff and his employee, Johnson, were working a tree and brush removal job for a customer who lived on Wimberly Road in Apex, North Carolina. (DE 111 ¶ 1; DE 115 ¶¶ 1, 108). This job required plaintiff and Johnson to cut down large amounts of tree limbs and brush and remove them from customer's property. (DE 115 ¶ 108). Plaintiff and Johnson were using a Dodge Ram diesel truck to haul loads of debris from the property to a large field located at 1116 Wimberly Road, a field plaintiff regularly uses for his business as a brush and debris dumping site. (DE 111 ¶ 2; DE 115 ¶¶ 2, 108).
Plaintiff did not have a valid driver's license on July 5, 2013, and the truck involved in the incident was not titled in plaintiff's name. (DE 111 ¶¶ 2, 9-10; DE 115 ¶¶ 2, 9-10, 108). Additionally, the truck involved in the incident was never titled in plaintiff's name, tags were never issued for the truck in plaintiff's name, and plaintiff did not have insurance on the truck. (DE 111 ¶ 11; DE 115 ¶ 11).
The field at 1116 Wimberly Road is private land, titled in the name of plaintiff's father in law, James Smith, and plaintiff is allowed use of the property "as if he is the title owner." (Aff. James Smith (DE 116-9) at 1; DE 111 ¶ 12; DE 115 ¶¶ 12, 108). This field is approximately 300 yards in length, with the south end being the widest part containing about 7,500 square feet of surface and the end where the two vehicles are found parked on the right-hand side in the distance in the below picture. (DE 115 ¶ 109).
(DE 116-7 at 14).
Plaintiff alleges the field has multiple vehicle entrance points that were and are regularly used by cars and trucks, including a northern entrance, not pictured above, a middle entrance, and a southern entrance. (DE 115 ¶ 13; DE 111 ¶ 13). The parties agree that in order to access the northern entrance on the day in question, a ditch would have to be driven over, although plaintiff alleges this "grassy ditch is shallow and can be easily driven over by cars or trucks." (DE 111 ¶ 14; DE 115 ¶¶ 14, 110). Plaintiff additionally alleges that Sheriff Defendants were familiar with plaintiff, knew that he regularly utilized his family's private field on Wimberly road for his tree removal business, and knew of the multiple entrances and exit points to the field. (DE 111 ¶ 14; DE 115 ¶¶ 14, 111).
As part of a several hour job on the day in question, plaintiff and Johnson hauled numerous loads of debris in the truck from the job site to the field for dumping. (DE 115 ¶ 112). During the tree removal job, a patrol car drove by plaintiff and Johnson multiple times driven by defendant Spivey. (
At approximately 7:00 p.m., plaintiff was driving with passenger Johnson southeast on Wimberly Road, towards the field, when they passed defendant Spivey in his patrol car in the opposite lane of travel. (DE 111 ¶¶ 2, 18, 114; DE 115 ¶¶ 2, 18, 114). Defendant Spivey knew that plaintiff previously had his driving license suspended. (DE 111 ¶ 45; DE 115 ¶ 45). Plaintiff saw defendant Spivey slow down and begin to use a side road to turn around, and plaintiff proceeded around the curve in the road and turned onto the north end of the field. (DE 115 ¶ 114).
Defendant Spivey drove to the south end of the field in order to enter the field. (DE 111 ¶ 20; DE 115 ¶¶ 20, 115). Once on the field, defendant Spivey drove from the south end of the field to the north end where plaintiff and Johnson were already outside of the truck, unloading the bed of the truck. (DE 111 ¶ 20; DE 115 ¶¶ 20, 115-16). When defendant Spivey initiated the traffic stop, he informed the Wake County law enforcement dispatcher of the stop. (DE 111 ¶ 2; DE 115 ¶ 2).
When Spivey pulled his patrol car up to plaintiff's location, he told plaintiff to walk over and produce his license and registration, which plaintiff did. (DE 115 ¶ 116). Defendant Spivey, plaintiff, and Johnson remained calm throughout the stop, in which defendant Spivey issued plaintiff citations for an expired registration, expired inspection, driving while license revoked, and for careless and reckless driving and went over court dates with plaintiff. (DE 111 ¶¶ 3, 21; DE 115 ¶¶ 3, 22, 116).
Defendants Legan and Miller were 20 miles away from the scene when they heard over their radio systems that defendant Spivey was initiating a traffic stop with plaintiff. (DE 115 ¶ 121; Legan dep. (DE 116-23) at 41:1-2). Defendants Legan and Miller got into their separate patrol cars and drove through two-lane residential streets toward the Wimberly Road location, sometimes exceeding 100 miles per hour, with numerous cars moving out of the way and pulling off the road as defendants Legan and Miller drove past. (DE 115 ¶ 121; dash cam footage (DE 116-6) at 7:25:30-35).
Defendants Legan and Miller parked their patrol cars along the side of the road next to the field. (Dash cam footage (DE 116-6) at 7:30:10-14). While defendant Spivey was writing citations, he instructed defendant Legan or both defendants Legan and Miller to search around plaintiff's vehicle to see if any contraband had been thrown out of the vehicle. (DE 111 ¶ 82; DE 115 ¶¶ 82, 122).
After receiving his traffic tickets and misdemeanor criminal citation, plaintiff asked defendant Spivey if he was free to go; defendant Spivey responded "yes," telling plaintiff he was free to leave and was not under arrest. (DE 111 ¶ 21; DE 115 ¶¶ 21, 124). Plaintiff turned around and walked away from defendant Spivey's vehicle and toward his own truck, while defendants Miller and Legan remained standing by defendant Spivey's vehicle. (DE 115 ¶ 124).
Plaintiff was upset he had received a citation for careless and reckless driving and told Johnson to wait outside while plaintiff got into his truck and began driving along the dirt road on the field, away from defendant Spivey's car and toward the south end of the field. (DE 111 ¶ 22; DE 115 ¶¶ 22, 124). Once plaintiff had driven away from the location of defendant Spivey's patrol car, he increased his speed and performed several "fishtails" and "donuts," while remaining completely on the field. (DE 111 ¶¶ 4, 22; DE 115 ¶¶ 4, 22, 125; dash cam footage (DE 116-6) at 7:42:00-44).
Defendant Spivey performed a three-point turnaround and drove in the direction of plaintiff's truck at the south end of the field, not exiting the field via the middle entrance. (DE 111 ¶¶ 5, 23; DE 115 ¶¶ 5, 23, 126; dash cam footage (DE 116-6) at 7:41:52-42:46). Johnson also walked down the field towards plaintiff while defendants Miller and Legan walked towards their patrol cars parked on the side of the highway. (Dash cam footage (DE 116-6) at 7:42:33-48).
Plaintiff stopped his truck, reversed into the path of defendant Spivey's car with his truck pointed towards the tree line, and then pulled his truck forward a few feet, as defendant Spivey pulled forward and came to a stop, with both vehicles coming to a resting point as seen below. (DE 111 ¶¶ 6, 23; DE 115 ¶¶ 6, 23, 127; dash cam footage (DE 116-6) at 7:42:46).
As alleged by plaintiff, "[t]he south end of the field where Plaintiff stopped his truck is a very large open area, with substantial and obvious room to drive a vehicle around the location of Plaintiff's truck." (DE 115 ¶ 24).
After plaintiff stopped his truck, the truck was in gear during the entire ensuing transaction with defendant Spivey. (DE 111 ¶ 25; DE 115 ¶ 25). Plaintiff alleges that "[a]s Spivey stopped his patrol car he immediately yelled through his open driver's window for [plaintiff] to move his truck"; in response plaintiff yelled "Go the f*** around me" and "This is P****g private property." (DE 111 ¶¶ 6, 23, 27; DE 115 ¶¶ 6, 23, 27, 129; Johnson dep. (DE 116-24) at 66:24-67:6; criminal trial tr. (DE 116-37) at 377:20-24).
Plaintiff alleges that defendant Spivey, without issuing any orders and "within seconds of stopping his [] car instantly exited his vehicle in an aggressive manner,
Plaintiff alleges first that defendant Spivey "forcefully struck Plaintiff in the head with the baton." (DE 115 ¶ 131;
During this time, defendants Legan and Miller had gotten into their patrol cars, drove quickly and briefly down the road to the southern end of the field, stopped their patrol cars, exited, and ran towards the truck. (Dash cam footage (DE 116-6) at 7:42:46-43:02). Defendant Legan drew his Taser weapon, and defendant Miller drew his service pistol. (DE 115 ¶ 133; criminal trial tr. (DE 116-38) at 188:16-24). Defendant Miller ran to the passenger window of the truck with his pistol loaded, cocked, and pointed at plaintiff. (DE 115 ¶ 133; Johnson dep. (DE 116-24) at 72:8-22; criminal trial tr. (DE 116-37) at 389:21-25). Defendant Legan approached the vehicle from the driver's side and positioned himself directly behind deputy Spivey, and in position to view the entire event within arm's length of defendant Spivey. (DE 115 ¶ 133; criminal trial tr. (DE 116-39) at 158:17-25, 159:1-16).
As defendant Spivey pulled plaintiff from the driver's seat, plaintiff's foot came off the brake of the truck, and it began idling forward. (DE 115 ¶ 134;
When the truck started moving, defendant Spivey dropped plaintiff back into the driver's seat where he landed with his right hand back on the steering wheel; plaintiff pushed his foot back on the brake to stop the truck. (DE 115 ¶ 135; Morgan dep. (DE 116-20) at 179:15-16 ("I noticed the truck was rolling, so obviously I started to get on the brake");
Defendant Miller was standing right next to the passenger window of plaintiff's truck and, when he saw the truck moving forward, he took aim and fired his revolver twice at close range, hitting plaintiff both times, first in plaintiff's left leg and second through plaintiff's right hand that was holding on to the steering wheel. (DE 115 ¶ 139). Defendant Miller moved alongside the vehicle the seven to eight feet it rolled while taking the two shots in immediate succession; after the shots, the vehicle stopped after rolling another foot. (DE 115 ¶ 140; criminal trial tr. (DE 116-38) at 193:12-16, 22-25 (defendant Miller testifying truck rolled seven to eight feet and stopped within a foot thereafter); criminal trial tr. (DE 116-40) at 106:15 (defendant Spivey testifying truck rolled seven to eight feet);
Plaintiff was able to put the truck in park with his left hand, open his driver door, and collapse on the ground, calling out "I need EMS! I need an ambulance!" (DE 115 ¶ 142). Defendant Miller turned his revolver to Johnson and told Johnson to "Get the f*** down." (
Defendants Spivey, Miller, and Legan began talking amongst themselves until other personnel arrived on scene in response to their radio call that shots had been fired. (DE 115 ¶ 144). Morgan was taken into custody and transported to Duke University Medical Center for emergency treatment. (
Plaintiff was charged with assault with a deadly weapon on a law enforcement officer; assault inflicting serious injury on a law enforcement officer; assault on a law enforcement officer; assault; felony habitual assault; and kidnaping a law enforcement officer. (DE 111 ¶ 8; DE 115 ¶¶ 8, 145).
Plaintiff pleaded "not guilty" to all charges and a jury trial was held in Wake County Superior Court. (DE 115 ¶ 146). At the close of the government's case, the court granted plaintiff's motion for directed verdict as to the kidnaping charge. (DE 111 ¶ 106; DE 115 ¶ 106). At the close of the trial, plaintiff was acquitted by unanimous jury verdict on June 4, 2015, as to the remaining charges. (DE 111 ¶ 106; DE 115 TT 106, 148).
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."
Once the moving party has met its burden, the non-moving party must then "come forward with specific facts showing that there is a genuine issue for trial."
"[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
Nevertheless, "permissible inferences must still be within the range of reasonable probability,. . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary inference is so tenuous that it rests merely upon speculation and conjecture."
Defendants argue that plaintiff's claims brought pursuant to § 1983 for violations of plaintiff's Fourth Amendment rights fail as a matter of law and that Sheriff Defendants are entitled to qualified immunity.
Plaintiff's Fourth Amendment claims brought pursuant to § 1983 allege the following violations: 1) defendant Spivey's illegal traffic stop, 2) defendant Legan's illegal search of plaintiff's truck during the traffic stop, 3) defendant Spivey's illegal arrest of plaintiff, 4) defendant Spivey's excessive use of force against plaintiff, 5) defendant Miller's excessive use of deadly force against plaintiff, and 6) defendant Legan's bystander liability. The court addresses each in turn below.
The temporary detention of an individual during a traffic stop constitutes a Fourth Amendment seizure.
It is undisputed that prior to initiating the traffic stop at issue, defendant Spivey knew that plaintiff previously had his driving license suspended at some point in the three weeks prior to the incident. (DE 111 ¶ 45; DE 115 ¶ 45 ("At that time, the most Defendant Spivey can say is that he claims to have had knowledge of a past suspension of Plaintiff's license or out of date registration"); Spivey dep. (DE 118-1) 200:1-18)).
Defendant Spivey's knowledge of plaintiff's past license suspension is sufficient to support a finding of reasonable suspicion. Although the Fourth Circuit has not directly addressed this situation in published opinion, the Fourth Circuit's unpublished opinions as well as the weight of other circuit's law support a holding that defendant Spivey acted with reasonable suspicion in initiating a traffic stop based on less than three-week old information that plaintiff was driving with a revoked license.
The undisputed evidence establishes defendant Spivey had reasonable suspicion to stop plaintiff and, accordingly, the court grants defendants' motion for summary judgment regarding the traffic stop.
During a routine traffic stop, an officer "may request a driver's license and vehicle registration, run a computer check, and issue a citation."
Defendants appear to argue first that defendant Legan's warrantless search which took place as defendant Spivey issued citations to plaintiff was "conducted incidentally to a lawful arrest,"(DE 113 at 6), and second that the search was legal because when defendant Spivey turned to follow plaintiff, he "suddenly and without warning drove off the right side of the paved road, across a ditch and into a field," and "displayed erratic and avoidance-type behavior once Deputy Spivey intended to stop him," by "running around the back of the truck, as if hiding something," (
First, this was not a search incident to arrest. Search incident to lawful arrest require a custodial arrest.
Second, even if the facts as recounted by defendants supported a finding of reasonable suspicion of a serious crime, such facts are disputed. Plaintiff has put forth evidence including testimony from Johnson and plaintiff that plaintiff was driving carefully when entering the field and plaintiff and Johnson did not run around the back of the truck as defendant Spivey was driving towards them. (DE 115 ¶¶ 114, 116; Morgan dep. (DE 116-20) at 161:2-21; Johnson dep. (DE 116-24) at 58:20-23).
Accordingly, defendants' motion for summary judgment regarding defendant Legan's search is denied.
An "arrest is a seizure of the person, and . . . the general rule is that `Fourth Amendment seizures are `reasonable' only if based on probable cause.'"
Government officials are entitled to qualified immunity from civil damages so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
"Ordinarily, the question of qualified immunity should be decided at the summary judgment stage"; however, qualified immunity "does not . . . override the ordinary rule applicable to summary judgment proceedings."
Defendants argue defendant Spivey was entitled to arrest plaintiff without a warrant "because he witnessed Plaintiff commit a criminal offense when Plaintiff blocked him from leaving the field — a violation of N.C. Gen. Stat. § 14-223 (regarding obstructing an officer)." (DE 113 at 7). Defendants further argue the evidence establishes that defendant Spivey was blocked by plaintiff because there was no room for defendant to Spivey to go around the front or the back of plaintiff's truck, as supported by the dash-cam video. (
North Carolina law makes it unlawful to "willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office[.]" N.C. Gen. Stat. § 14-223. "The general rule is that merely remonstrating with an officer . . . or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties."
Here, plaintiff has put forth sufficient evidence to create a triable issue of fact as to whether plaintiff willfully delayed or obstructed defendant Spivey in discharging a duty of his office. See N.C. Gen. Stat. § 14-223.
Taking facts in light most favorable to plaintiff, plaintiff's alleged "obstruction"—preventing defendant Spivey from exiting the field following defendant Spivey's issuance of traffic citations to plaintiff — did not occur. Plaintiff submits numerous pictures, video re-enactments, and expert reports indicating defendant Spivey could have, and knew he could have, exited the field via the middle entrance or could have easily avoided plaintiff's truck by driving around and exiting the field from the entrance which he previously used to enter the field. As alleged by plaintiff, and further illustrated in the photo reenactment below, "[t]he south end of the field where Plaintiff stopped his truck is a very large open area, with substantial and obvious room to drive a vehicle around the location of Plaintiff's truck." (DE 115 ¶ 24).
Even if plaintiff did obstruct defendant Spivey, defendants have failed to put forth undisputed evidence that plaintiff did so willfully, with the intention of impeding defendant Spivey in the course of his duties. (
The situation before the court stands in contrast to the limited number of cases addressing violation of this statute in applicable context by the North Carolina Supreme Court.
Notwithstanding, defendants argues that "[e]ven if there was room for Deputy Spivey to go around him, there can be no doubt Plaintiff delayed him in doing so" and that defendant Spivey was "no doubt . . . hindered." (DE 118 at 7-8). In support, defendants cite
This case is readily distinguishable because in
Therefore, when the facts are viewed in light most favorable to plaintiff, defendant Spivey lacked probable cause to arrest plaintiff for violating N. C. Gen. Stat. § 14-223 and therefore violated plaintiff's Fourth Amendment rights to be free from unreasonable seizure. The court therefore next addresses whether this rights was clearly established on the date in question, July 5, 2013, and the court finds that such right was.
Plaintiff alleges the traffic stop had been fully completed, he was free to go, and defendant Spivey was exiting defendant's land. According to plaintiff, instead of taking another exit off of plaintiff's field, defendant Spivey stopped behind plaintiff's truck, where plaintiff's truck was partially in defendant Spivey's way in "a very large open area, with substantial and obvious room to drive a vehicle around the location of Plaintiff's truck." (DE 115 ¶ 24). Thereafter, defendant Spivey immediately tried to arrest plaintiff with no warning. Were a reasonable jury to find plaintiff's testimony credible, it could conclude no reasonable officer would have believed that plaintiff was willfully and unlawfully resisting, delaying or obstructing a public officer in discharging or attempting to discharge a duty of his office in violation of N.C. Gen. Stat. § 14-223.
It was clearly established on the date in questions that an officer violates the Fourth Amendment if he effects a warrantless arrest knowing he lacks probable cause.
Accordingly, the court denies defendants' motion for summary judgment as to plaintiff's claim for Fourth Amendment violation concerning defendant Spivey's arrest of plaintiff and finds defendant Spivey is not entitled to qualified immunity on this issue at this time.
"[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard."
The intentions of the police officer have no bearing on the reasonableness inquiry, as the reasonableness inquiry is an objective one.
Plaintiff alleges that defendant Spivey, without issuing any orders and "within seconds of stopping his [] car instantly exited his vehicle in an aggressive manner, extended his ASP baton," and began approaching the driver side of plaintiff's truck "in an obviously hostile manner." (DE 115 ¶ 129; Morgan dep. (DE 116-20) at 294:10-11 ("It all happed so fast and I — I weren't given no commands"); dash cam footage (DE 116-6) at 7:42:46-43:02; Johnson dep. (DE 116-37) at 378:10-14 ("He jumped out of his vehicle, slung that baton . . . run around . . . to the driver's side); Legan dep. (DE 116-23) at 47:13-17 ("Q. You testified in this case that you saw that Deputy Spivey had an ASP baton on July 5th, 2013? A. Yes, sir. Q. You saw him actually extend it? A. I believe so, yes, sir")).
Plaintiff alleges first that defendant Spivey "forcefully struck Plaintiff in the head with the baton." (DE 115 ¶ 131;
The court considers the
Turning to the second factor, whether a reasonable officer could have perceived plaintiff to be an immediate threat to the safety of the officers or others, this factor also weighs in favor of plaintiff. At the time defendant Spivey approached plaintiff to allegedly arrest him, it is undisputed that plaintiff was not armed and was sitting in his truck at a full stop.
Defendants argue, however, that plaintiff posed a threat to deputies in that plaintiff "had a recorded history of violence and obstruction of law enforcement activities and the deputies knew of his history." (DE 113 at 12). Additionally, "Deputy Spivey reasonably believed Plaintiff would use physical means to resist arrest" in that "Plaintiff was irritated he had been stopped, and Deputy Spivey reasonably believed Plaintiff blocked his exit from the field by his truck," and "Verbal exchanges between Plaintiff and Deputy Spivey only increased the exigency of the situation." (
Here, the circumstances did not justify the level of force applied by defendant Spivey, hitting plaintiff twice with a baton and attempting to pull him out of the window of the vehicle. Although "[i]f an officer reasonably, but mistakenly believed, that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed,"
Turning to the third factor, whether plaintiff was actively resisting arrest, this factor also favors plaintiff. When viewing facts in light most favorable to plaintiff, plaintiff did not know defendant Spivey sought to arrest him and had no time in which to resist. (
Defendants argue that plaintiff's "own testimony and the undisputed record evidence suggest he resisted arrest." (DE 113 at 21). However, when turning to defendants' citations, plaintiff testified that when "Deputy Spivey attempted to pull him out of the truck, Plaintiff never said `I give or anything like that' because, as further testified by plaintiff as follows:
(DE 111 ¶ 30; DE 115 ¶ 30)
Defendants argue it is undisputed that "Plaintiff never complied as Deputy Spivey tried to arrest him," and that defendant Spivey "grabbed the truck's door, but it was locked" and therefore "reached in and grabbed hold of Plaintiff's shirt to extract him from the vehicle and place him under arrest." (DE 111 ¶ 52). However, even if true, these are not facts that support a conclusion that plaintiff was attempting to flee or resist defendant Spivey in any way where plaintiff had no opportunity to comply with defendant Spivey's efforts to arrest him.
Although plaintiff alleges limited injuries as a result of defendant's Spivey's use of force, that fact alone is not dispositive. The above analysis of the
As stated above, defendants' assert the defense of qualified immunity regarding plaintiff's excessive force claims. Thus the court having concluded that plaintiff's constitutional rights were violated must now determine whether those rights were clearly established at the time of defendant Spivey's conduct. Defendants argue that "The Wake Sheriff Defendants have not located any binding case putting Deputy Spivey on notice that he could not use physical force with a baton against a subject resisting arrest." (DE 113 at 21).
Defendants' characterization of the appropriate inquiry is incorrect in that, as stated above, there is no undisputed evidence that plaintiff was resisting arrest. Since at least 2003, it has been clearly established in the Fourth Circuit that an officer is not entitled to use "unnecessary, gratuitous, or disproportionate force" against a nonviolent misdemeanant who poses no threat to safety.
Fourth Circuit:
Accordingly, the court denies defendants' motion regarding claims of excessive force used against plaintiff by defendant Spivey and finds defendant Spivey not entitled to qualified immunity at this time.
"A police officer may use deadly force when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or others."
Plaintiff alleges that as defendant Spivey pulled plaintiff from the driver's seat, plaintiff's foot came off the brake of the truck, and it began idling forward. (DE 115 ¶ 134;
When the truck started moving, defendant Spivey dropped plaintiff back into the driver's seat where he landed with his right hand back on the steering wheel; plaintiff pushed his foot back on the brake to stop the truck. (DE 115 ¶ 135; Morgan dep. (DE 116-20) at 179:15-16 ("I noticed the truck was rolling, so obviously I started to get on the brake");
Defendant Miller was standing right next to the passenger window of plaintiff's truck and, when he saw the truck moving forward, he took aim and fired his revolver twice at close range, hitting plaintiff both times, first in plaintiff's left leg and second through plaintiff's right hand that was holding on to the steering wheel. (DE 115 ¶ 139). Defendant Miller moved alongside the vehicle the seven to eight feet it rolled while taking the two shots in immediate succession; after the shots, the vehicle stopped within a foot. (DE 115 ¶ 140; criminal trial tr. (DE 116-38) at 193:12-16, 22-25 (defendant Miller testifying truck rolled seven to eight feet and stopped within a foot thereafter); criminal trial tr. (DE 116-40) at 106:15 (defendant Spivey testifying truck rolled seven to eight feet);
As in the case of defendant Spivey, the first
Turning to the second
Plaintiff does not dispute that defendant Spivey and plaintiff were somehow physically engaged and that the truck began to move, stating the "truck simply began to idle forward slowly when Spivey pulled Plaintiff off the brake pedal, and that it never moved in any way or with any speed to drag anyone." (DE 114 at 21;
Taking facts in light most favorable to plaintiff, that plaintiff's truck was idling forward because his foot had been pulled off the brake as plaintiff was a third of the way outside of the truck window while defendant Spivey continued to in some way make physical contact with plaintiff, without more, is insufficient for the court to find that
This set of facts stands in contrast to those where courts have found immediate threat of harm where a plaintiff was intentionally using his or her vehicle as a potential weapon.
Finally, with regard to plaintiff's injuries, it is undisputed they are significant. (
Taking the facts in light most favorable to plaintiff and taking into account all factors, a reasonable jury could conclude that defendant Miller violated plaintiff's Fourth Amendment right to be free from excessive force. Having determined a constitutional violation, the court considers whether defendant Miller's conduct violated a constitutional right that was clearly established at the time the conduct occurred. In other words, the court must determine whether on July 5, 2013, a reasonable officer would have known that shooting a suspect as he was being pulled out of the window of a vehicle by another officer, thus setting that vehicle in motion, would violate clearly established statutory or constitutional rights.
Defendants cite the Fourth Circuit decision
In addressing the arguments made by the parties, the Fourth Circuit determined in relevant part that "viewing the evidence in the best light for Ms. Brown, for purposes of summary judgment Deputy Elliott was neither `stuck' in the truck nor `dragged' by it, but the evidence was undisputed that Deputy Elliott's torso was inside the truck when he fired the fatal shot," and "With these `circumstances of the case' in mind, we turn to the question of whether any controlling authority clearly established
The facts here, taken in light most favorable to plaintiff, are different than those confronting the Fourth Circuit in
forward." Based on these factual differences, Brown does not hold that the right at issue in this case was not clearly established at the time of the events in question.
Here, defendant Miller is not entitled to qualified immunity against plaintiff's excessive force claim for the same reason the court denied defendant Spivey's assertion of qualified immunity. As stated by the Fourth Circuit, "our precedent makes clear that a nonviolent misdemeanant who is compliant, is not actively resisting arrest, and poses no threat to the safety of the officer or others should not be subjected to `unnecessary, gratuitous, and disproportionate force.'
Defendants argue that "[n]o one disputes . . . that Deputy Spivey was in danger when the truck started to move," (DE 118 at 2) and that "[a]ll Deputy Miller knew — and all any reasonable officer in his shoes would know —is that the vehicle was moving while Deputy Spivey was entangled with Plaintiff," (DE 113 at 20), arguing also who set the vehicle in motion is irrelevant, (
These material facts, however, are in dispute. First, whether defendant Spivey was in danger is a fact in stark dispute.
the same physical size and stature as plaintiff and that if he were pulled through the window of plaintiff's truck, he would not be able to reach the pedals with his foot) with criminal trial tr. (DE 116-38) at 191:5-17) (Miller testifying that "Deputy Spivey was able to pull him up a little bit off the seat, and every time he pulled, Mr. Morgan would obviously resist down and try to put his foot down towards the gas pedal . . . . I actually gave a command to Mr. Morgan to put the vehicle in park and about the time I got done with the word park, his foot made contact with the gas pedal. He pushed it all the way to the floor. Pushed it all the way to the floor. At that point, the wheels on the truck started to spin.")).
Second, defendant Miller testified not that the parties were "entangled" but that he "could see that Deputy Spivey's hands were around Mr. Morgan's chest" and that "I know I saw both hands about Mr. Morgan's person," (criminal trial tr. (DE 116-38) at 190:11-15), meaning a reasonable officer in defendant Miller's shoes would know defendant Spivey was holding onto plaintiff and, more importantly, could let go.
In order to grant qualified immunity to defendant Miller at this time, defendants seek the court to hold there is a threat of serious physical harm to an officer who is pulling a compliant driver out of the window of a vehicle, causing that vehicle to idle forward, who could not reach the pedals, such that deadly force could be employed against the driver by another officer.
Given the facts viewed in light most favorable to plaintiff, it is difficult to see how the plaintiff in this situation was a threat to anyone, as he was being pulled out of his truck window, much less such a threat as to justify employing deadly force. Cases cited by defendants do not hold otherwise and instead highlight the disputed nature of this encounter.
The Fourth Circuit has held that "an officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act."
Plaintiff argues that defendant "Legan testified that he had his taser drawn and was standing directly behind Spivey the entire time that Spivey
Defendants argue only that the "undisputed facts and video evidence show this is not a case involving clearly egregious behavior or police misconduct." (DE 118 at 6). Defendants have failed to carry their burden on this claim necessary for a grant of summary judgment. As stated above, taking facts in light most favorable to plaintiff, a reasonable juror could find that defendant Spivey used excessive force in attempting to arrest plaintiff. Additionally, taking facts in light most favorable to plaintiff, a reasonable juror, for example, could find that defendant Legan was in a position to evaluate the correctness of defendant Spivey's conduct because defendant Legan was present, had specific knowledge of defendant Spivey's allegedly unconstitutional conduct, and could have had a reasonable opportunity to prevent the harm.
Accordingly, the court denies defendants' motion for summary judgment as to plaintiff's claim against defendant Legan under the theory of bystander liability.
Defendants argue that where applicable, Sheriff Defendants are entitled to public officer's immunity and on plaintiff's state law claims of assault and battery, false imprisonment, malicious prosecution, claim on sheriff's bond, and civil conspiracy. The court will address each in turn below.
Because the court has held above that plaintiff's claims against defendants Spivey and Miller for excessive force and against defendant Spivey for unlawful arrest under the Fourth Amendment survive summary judgement and these defendants are not entitled to qualified immunity, the court finds plaintiff's state-law assault and battery claims against defendants Spivey and Miller in their individual capacities as well as false imprisonment claim against defendants Spivey, Miller, and Legan in their individual and official capacities also survive summary judgment and that these defendants are not entitled to public officer's immunity.
Turning to plaintiff's state-law claim of malicious prosecution against defendants Spivey, Miller, and Legan in their individual and official capacities, the court holds this claims survives summary judgment as well. To establish malicious prosecution, a plaintiff must show that the defendant 1) initiated or participated in the earlier proceeding, 2) did so maliciously, 3) without probable cause, and 4) the earlier proceeding ended in favor of the plaintiff.
Defendants Spivey, Miller, and Legan initiated and participated in the prosecution of defendant. Taking the facts in light most favorable to plaintiff, as previously determined by the court, defendants did so without probable cause and, the court finds, maliciously.
Defendants argue that plaintiff's claims for false imprisonment and malicious prosecution are supported by probable cause as evidenced by the arrest warrants issued by a neutral magistrate and the true bills of indictment returned by the Wake County grand jury. (DE 113 at 25). However, all cases cited by defendants address instances where officers sought arrest warrants and indictments
Additionally, the Fourth Circuit has rejected defendants' argument in the context of a North Carolina malicious prosecution claim.
Accordingly, plaintiff's state-law malicious prosecution claim is allowed to proceed against defendants Spivey, Miller, and Legan in both their individual and official capacitates.
North Carolina law does not recognize a civil action for conspiracy. There is, rather, an action for damages caused by acts committed pursuant to a formed conspiracy.
Here, plaintiff argues that "there is ample circumstantial evidence from which a reasonable jury could find that Plaintiff has established a civil conspiracy claim," in that 1) "[t]he stories of all three Defendants `lined up' perfectly in that they reported the same material facts to Wake County investigators, prosecutors, and the criminal trial jury regarding their claims that Plaintiff intentionally floored the gas pedal of his truck, causing the tires to spin and kick up dirt, and that he intentionally dragged Deputy Spivey with the truck as a deadly weapon," and 2) "minutes immediately following the shooting, all three Defendants huddled together in the field before other personnel arrived and discussed what had just transpired." (DE 114 at 28-29).
Although plaintiff overstates what the evidence reveals in that, for example, no evidence has been put forth as to what defendants Spivey, Miller, and Legan discussed while standing in the field following the shooting, (
Given the disputed nature of these material facts and taking facts in light most favorable to plaintiff with all reasonable inferences therefrom drawn in plaintiff's favor, a reasonable jury could conclude that defendants Spivey, Miller, and Legan entered into an agreement to do an unlawful act, namely to lie to investigators, prosecutors, and the criminal trial jury concerning the events of July 5, 2013, in order for defendants' actions to appear justified.
Accordingly, plaintiff's claim for civil conspiracy against defendants' Spivey, Miller, and Legan in their individual capacities survive defendants' motion for summary judgment.
Plaintiff's claim on sheriff's bond is a derivative claim that rises and falls with claims against defendants in their official capacities. Because plaintiff's claims against defendants Spivey, Miller, and Legan in their official capacities for state-law false imprisonment and malicious prosecution survive defendants' motion to dismiss, plaintiff's claim on sheriff's bond also survives. As stated previously by the court, plaintiff may recover on sheriff's bond for any breaches of the bond accruing on or after October 6, 2013, up to the $20,000.00 amount of the bond.
Based on the foregoing, defendants' motion for summary judgment (DE 110) is GRANTED IN PART and DENIED IN PART. Accordingly, plaintiff's claim pursuant to § 1983 for violations of plaintiff's Fourth Amendment rights regarding defendant Spivey's traffic stop of plaintiff is DISMISSED.
The following claims remain:
1) Plaintiff's claims pursuant to § 1983 for violations of plaintiff's Fourth Amendment rights regarding defendant Legan's search of plaintiff's truck; defendant Spivey's arrest of plaintiff and use of force; defendant Miller's use of deadly force; and defendant Legan's bystander liability;
2) Plaintiff's state-law claims against defendants Spivey and Miller in their individual capacities for assault and battery;
3) Plaintiff's state-law claims against defendants Spivey, Miller, and Legan in their individual and official capacities for false imprisonment and malicious prosecution;
4) Plaintiff's state-law claims against defendants Spivey, Miller, and Legan in their individual capacities for civil conspiracy; and
5) Plaintiff's claim on sheriff's bond.
The parties are DIRECTED to confer and file within 21 days from date of entry of this order a joint status report specifying the estimated length of the trial, three alternative suggested trial dates, and suggested alternative dispute resolution techniques to be employed prior to trial in attempt to resolve the issues between the parties. Upon receipt of the parties' report, unless advance conference with the court is requested therein, the court will enter such further order as is warranted regarding pretrial and trial scheduling.
SO ORDERED.
(Cloutier expert report (DE 116-14) at 11-12).
