Civil Rights – Excessive Force Claim – Wrongful Death – Police Shooting

Knight v. City of Fayetteville (Lawyers Weekly No. 002-012-17, 34 pp.) (Louise Flanagan, J.) 5:15-cv-00208; E.D.N.C.

Holding: Even though it turned out that plaintiff’s decedent was in the process of throwing his gun when the defendant-police officer shot him, dash-cam footage supports the officer’s perception that the decedent was moving his gun into position to shoot the officer.

The court grants defendants’ motion for summary judgment.

Facts

During a traffic stop, Officer Burlingame smelled marijuana and called for backup. Defendant Officer Little responded.

Burlingame patted down the driver, while Little told the passenger – plaintiff’s decedent – to “sit tight.” When Burlingame started to take a baggie of drugs out of the driver’s waistband, the driver tried to flee, and Burlingame took him down to the ground. The driver began screaming loudly.

At this point, the decedent moved through the car, out and around the open driver’s-side door, and away from the car. Little saw that the decedent was holding a handgun.

As the decedent threw his gun into a nearby yard, Little perceived that the gun was being turned on him, and he fired the shots that led to the decedent’s death.

Motion to Strike

Where the medical examiner, the police department’s firearms instructor, and the district attorney were not retained or specially employed to provide expert testimony, defendants were not required to disclose them as experts in this case. Insofar as the ME’s affidavit goes beyond merely stating what she did in her autopsy examination and the findings thereof (for example, opining that the gunshot wound to the decedent’s thoracic spinal cord would not have prevented him from throwing a gun approximately 30 feet over a fence), plaintiff has sufficiently demonstrated her surprise at the inclusion of such testimony without prior disclosure. Therefore, the court strikes those portions of the ME’s affidavit.

Excessive Force

An armed suspect need not engage in some specific action such as pointing, aiming, or firing his weapon to pose a threat. Officers need not be absolutely sure of the nature of the threat or the suspect’s intent to cause them harm – the Constitution does not require that certitude precede the act of self-protection.

The undisputed facts and disputed facts viewed in the light most favorable to plaintiff do not establish a Fourth Amendment excessive force violation. Defendant Little had sound reason to believe that the decedent posed a threat of serious physical harm to Little or others at the moment he fired his shots.

Burlingame and Little were confronted with an already dangerous scenario involving a traffic search yielding strong odor of marijuana, discovery of multiple drug items, one suspect who had physically resisted an officer, and that same suspect screaming loudly.

At that very instant, the decedent began to flee out of the car. Not only would this flight reasonably be perceived as a risk to Burlingame and the public, but this flight was also in direct contravention of Little’s earlier commands to the decedent to “sit tight.” Thus, in addition to a serious crime under investigation, both the driver and the decedent were attempting to evade arrest by flight.

The decedent’s use of a firearm added a substantial defining factor to the calculus of an officer on the scene. In the one second that followed (according to dash cam video viewed in slow motion), as the decedent was just exiting completely from the car, Little observed that he was holding a gun in his right hand in firing position, a fact that would have changed the perspective of a reasonable officer in Little’s position from that of an already serious situation to one that presented a grave risk of serious physical harm to the officer or others.

Little then yelled out something loudly to the decedent, which, though unintelligible, reasonably would have been perceived by an officer in the circumstances as a final attempt to give warning to the decedent to cease his movements.

The decedent did not cease his movements; to the contrary, he commenced an upward and outward arm movement, during which movement his gun broke a “90 degree plane” such that Little saw the “barrel of the weapon was coming back” in Little’s direction.

Given all that had preceded in the seconds leading up to that moment, an officer in Little’s position reasonably would have perceived an immediate threat to his safety from a gunshot from the decedent’s gun, which Little understood could be fired at any point in its movement.

At that moment, Little was justified in firing his gun to incapacitate the decedent and prevent him from firing at Little first. Little’s application of deadly force thus was reasonable and was not a violation of the decedent’s Fourth Amendment rights.

Even accepting as a fact that the decedent had released his gun before being shot, there is no evidence that Little realized this before he pulled the trigger on his own gun. This case presents a paradigmatic example of one needing allowance for split-second judgments.

In sum, an officer in circumstances presented to Little immediately before he fired his gunshots reasonably would have perceived an imminent threat to his safety from the decedent’s handling of his gun. Thus, Little did not apply excessive force under the circumstances.

Plaintiff’s tort claims against the defendant-city and its officers in their official capacities are barred by the doctrine of governmental immunity. Plaintiff having proffered no evidence that any of the individual officers acted with malice or corruption, her state tort claims against defendants in their individual capacities are barred by public official immunity.

Summary judgment for defendants.