North Carolina Lawyers Weekly
Wilcox v. City of Asheville (Lawyers Weekly No. 12-07-0829, 35 pp.) (Linda Stephens, J.) (Wanda G. Bryant, J., concurring in the result without separate opinion) Appealed from Buncombe County Superior Court. (Alan Z. Thornburg, J.) N.C. App. Full-text opinion.
Holding: Since neither the public nor the three defendant-police officers were in danger from the slow-moving vehicle when the officers fired upon it, shooting and injuring the plaintiff-passenger, there is a genuine issue as to whether the officers acted with malice under the constructive intent doctrine.
We affirm the trial court’s denial of the officers’ motion for summary judgment. We also affirm the trial court’s grant of summary judgment for defendants on plaintiff’s state constitutional claims. We reverse the denial of summary judgment against the defendant-police chief in his individual capacity.
A public official is immune from suit unless the challenged action was (1) outside the scope of official authority, (2) done with malice, or (3) corrupt. In this case, the only relevant exception to public official immunity is malice. A malicious act is an act (1) done wantonly, (2) contrary to the actor’s duty, and (3) intended to be injurious to another.
We reject the officers’ contention that only direct evidence of a defendant’s actual intent to injure the plaintiff is sufficient to show malice.
Although there are no N.C. decisions addressing the sufficiency of evidence of an implied intent to injure specifically in the public official immunity context, our
Supreme Court has held generally that the intention to inflict injury may be constructive as well as actual and that constructive intent to injure exists where the actor’s conduct is so reckless or so manifestly indifferent to the consequences, where the safety of life or limb is involved, as to justify a finding of willfulness and wantonness equivalent in spirit to an actual intent. In light of our Supreme Court’s broad acceptance of the constructive intent doctrine in multiple situations where findings of malice and intent are required, the doctrine should, likewise, apply here so long as the doctrine’s application accords with the purpose and rationale for extending immunity to public officials in the first place. We believe it does.
G.S. § 15A-401(d) delimits those situations in which use of deadly force by law enforcement officers may be “justified.” Implicit in that codification is the notion that unjustified use of deadly force may lead to civil liability. Section 15A-401(d) “clarified” for law enforcement officers that they may be subject to liability for “recklessness” or “heedless indifference to the safety and rights of others” when using deadly force.
We hold that evidence of constructive intent to injure may be allowed to support the malice exception to public official immunity. A plaintiff seeking to prove malice based on constructive intent to injure must show that the level of recklessness of the officer’s action was so great as to warrant a finding equivalent in spirit to actual intent.
In her claim against the defendant-police chief, plaintiff has made only vague allegations, and she has alleged no specific actions or omissions that would constitute a failure to train or supervise. The trial court should have granted summary judgment to the police chief in his individual capacity.
As for the three defendant-police officers, they were told not to join the pursuit, did so anyway, and fired multiple times on the slow-moving car either from a safe location or despite the ability to get to safety. Although two of them said they did not hear radio communications about a passenger in the vehicle, they heard other radio communications during the incident and apparently made no effort to find out how many people were in the vehicle. There is an issue of material fact as to whether the officers’ actions in firing at the vehicle were so reckless and manifestly indifferent to plaintiff’s rights that application of the constructive intent doctrine is justified.
Defendants Hogan and Intveld alternatively argue that plaintiff failed to show that her injuries were proximately caused by Hogan and Intveld’s use of force. However, the evidence that Hogan and Intveld were shooting recklessly at the vehicle is sufficient to allow a reasonable juror to find concurrent negligence.
Since a jury will decide the applicability of public official immunity to plaintiff’s tort claims, plaintiff has an adequate state remedy such that any direct state constitutional claims were properly dismissed.
Our Supreme Court has held that a state common law claim absolutely barred by governmental immunity is not an adequate state remedy. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (2009). The Craig court said that an adequate remedy must give the plaintiff “at least the opportunity to enter the courthouse doors and present his claim” and must “provide the possibility of relief under the circumstances.” Thus, adequacy is found not in success, but in chance.
Plaintiff still has a chance to obtain relief. Her claims against the officers in their individual capacities are not automatically precluded.
Plaintiff argues that public official immunity requires her to prove “subjective bad motive”, something she would not have to prove in a state constitutional claim. However, once the cloak of official immunity has been pierced — by a showing that the defendant acted maliciously, corruptly, or beyond his duty — the defendant is not entitled to immunity protection on account of his office, and he is then liable for simple negligence and subject to the standard liabilities of a tortfeasor. Thus, plaintiff is incorrect regarding her inability to sue the individual defendants for negligence; so long as she can also satisfy her burden of showing that the individual defendants acted maliciously, plaintiff can assert claims against the individual defendants in their individual capacities for negligent use of unreasonable force.
Affirmed in part, reversed and remanded in part.
