COOK, et al v. RILEY, et al
Filing
81
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 6/15/2012, recommending that Defendants' Motion for Summary Judgment (Docket Entry 34 ) be denied. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DALE F. COOK and TAMMY LYNN
COOK, individually and upon
the relation of the State of
North Carolina,
Plaintiffs,
v.
BRAD RILEY, individually
and in his official capacity
as Sheriff of Cabarrus
County, North Carolina;
JASON THOMAS, individually
and in his official capacity
as Deputy Sheriff of
Cabarrus County;
ROBERT WENSIL, individually
and in his official capacity
as Deputy Sheriff of
Cabarrus County; and
PENNSYLVANIA NATIONAL
MUTUAL CASUALTY INSURANCE
COMPANY, a corporation, in
its capacity as Surety on
the official bond of
the Sheriff of Cabarrus
County,
Defendants.
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1:11CV24
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant case comes before the undersigned United States
Magistrate Judge for a recommended ruling on Defendants’ Motion for
Summary Judgment (Docket Entry 34). (See Docket Entries dated Jan.
24, 2011, Jan. 24, 2011, and April 19, 2012 (designating case as
subject to handling pursuant to this Court’s Amended Standing Order
No.
30,
assigning
case
to
undersigned
Magistrate
Judge,
and
referring instant Motion to same, respectively).)1 For the reasons
that follow, the Court should deny the instant Motion.
I. Background
This case arises from Defendant Cabarrus County Deputy Sheriff
Jason Thomas’s deployment of a TASER against Plaintiff Dale Cook.
(See Docket Entry 1, ¶¶ 12-74.)
The Parties agree that, after a
marital dispute in which Mr. Cook pushed his wife, Plaintiff Tammy
Lynn Cook, she swore out a warrant for his arrest.
35 at 2; Docket Entry 46 at 3.)
(Docket Entry
In addition, the Parties agree
that Deputy Thomas and Defendant Sergeant Robert Wensil (also of
the Cabarrus County Sheriff’s Office) went to the home of the Cooks
to serve the arrest warrant.
46 at 4.)
(Docket Entry 35 at 2; Docket Entry
The Parties also agree that, prior to the arrival of
Deputy Thomas and Sergeant Wensil, Mr. Cook climbed into a tree
stand behind his house and sat down.
(Id.)
The Parties’ accounts
of the encounter that followed, however, differ in many respects.
(Compare Docket Entry 35 at 3-5, with Docket Entry 46 at 4-7.)
According to Mr. Cook, “[w]hen the officers asked him to come
down [from the tree stand], [he] replied, ‘Well, right now, I would
1
Under said Standing Order, “[t]he magistrate judge to whom
the case is assigned will rule or make recommendations upon all
motions, both non-dispositive and dispositive.” M.D.N.C. Amended
Standing Order No. 30, ¶ 2; see also M.D.N.C. LR72.2 (“Duties and
cases may be assigned or referred to a Magistrate Judge . . . by
the clerk in compliance with standing orders . . . .”).
-2-
rather not.
I need some space.’”
Docket Entry 42 at 93).)
This same general line of request and
response recurred several times.
93-94).)
(Docket Entry 46 at 5 (quoting
(Id. (citing Docket Entry 42 at
Deputy Thomas then drew his X-26 TASER gun and “leaned
over to Sergeant Wensil and said, ‘Taser?’
And, Wensil replied,
‘[t]hat may be our only option.’” (Id. (quoting Docket Entry 56 at
50).)
Without warning, Deputy Thomas then discharged his TASER at
Mr. Cook.
(Id. at 6 (citing Docket Entry 42 at 133).)
The Cooks further assert that, as a result of the TASER shock,
Mr. Cook’s “arms shot out from his body and his head turned from
side to side.”
(Id. (citing Docket Entry 42 at 96-97).)
He then
fell from the tree stand, a fifteen foot drop, landing on his back.
(Id. at 7 (citing Docket Entry 45 at 41; Docket Entry 54 at 38;
Docket Entry 48 at 16-17).)
Moreover, the Cooks maintain that Mr.
Cook “did not make any suicidal statements and he did not take any
actions which could reasonably be construed by the officers as a
suicide attempt.”
(Id. (citing Docket Entry 42 at 103-05, 110-13,
163-64; Docket Entry 49 at 60; Docket Entry 45 at 34-35, 47, 49;
Docket Entry 54 at 64, 84-85).)
Deputy Thomas and Sergeant Wensil recount very different
events.
First, after declining to come down, Mr. Cook said “‘the
only way I’m coming down is – I’m coming down my way, and I’m
coming down head first,’” which Deputy Thomas and Sergeant Wensil
considered a suicide threat. (Docket Entry 35 at 3 (quoting Docket
-3-
Entry 56 at 68).)
In addition, Mr. Cook “looked at his left wrist
and said ‘I guess I didn’t cut myself deep enough.’
would get the cut right the second time.”
Entry 55 at 22).)
He said he
(Id. (quoting Docket
Moreover, Deputy Thomas “saw a cut across [Mr.
Cook’s] left wrist.”
(Id. (citing Docket Entry 56 at 69).)
Cook also pulled a knife from his pocket.
Mr.
(Id. (citing Docket
Entry 56 at 29); see also Docket Entry 55 at 21 (“It appeared to be
like a Swiss Army type knife.
can describe it.”).)
It was red; that’s the best way I
He opened the knife “and, despite Deputy
Thomas’s command to drop the knife, [Mr. Cook] refused and Deputy
Thomas deployed the TASER.”
Entry 56 at 70).)
(Docket Entry 35 at 3 (citing Docket
Both Deputy Thomas and Sergeant Wensil warned
Mr. Cook “several times” before Deputy Thomas deployed the TASER.
(Id. (citing Docket Entry 56 at 43-44; Docket Entry 55 at 19).)
Before using the TASER, Deputy Thomas considered several
alternatives, including “doing nothing, climbing a ladder with an
impact weapon, or using OC spray.” (Id. (citing Docket Entry 56 at
29).)
Deputy Thomas decided that the OC spray would not work
(because it would “fall back on [him]”) and that Mr. Cook’s
elevated position would prevent “safe and effective use of any
impact weapon” and would expose Deputy Thomas and/or Sergeant
Wensil to “the risk of a stab wound . . . from Mr. Cook’s knife.”
(Id. at 3-4 (citing Docket Entry 56 at 29).)
Rather than do
nothing, Deputy Thomas chose to use the TASER “to prevent Mr. Cook
-4-
from harming himself,” thinking “it would cause Mr. Cook to lock up
and drop the knife.”
(Id. at 4 (citing Docket Entry 56 at 30;
Docket Entry 55 at 57).) Deputy Thomas perceived a reduced risk of
a fall because Mr. Cook “was seated and had a rail around him, and
the effects [of the TASER] could be turned off instantly.”
(Id.
(citing Docket Entry 56 at 35; Docket Entry 55 at 51-52).)2
It appeared to both Deputy Thomas and Sergeant Wensil that the
TASER “only affected Mr. Cook for a second before he broke the
circuit.”
70).)
(Id. (citing Docket Entry 56 at 40; Docket Entry 55 at
After the cycle finished, Mr. Cook said, “‘I told you the
2
In his deposition, Deputy Thomas described his thought
process as follows:
Q. Prior to the use of the TASER, did you consider the
risk of fall?
A. There was a risk, yes.
. . .
Q. Did you consider the risk of injury from the fall?
A. Yes.
Q. And what did you think that was?
A. I felt that it was lessened at that point because
Number 1, Mr. Cook was in a seated position. He had – he
was in a tree stand that had a rail, a safety rail around
it. And then if I did deploy the TASER, if I thought he
was going to possibly slide off or anything, I can
actually turn off the TASER and he – the effects are over
with, he can actually then grab or try to steady himself.
. . .
Q. What did you think the risk of fall was in that
situation?
If you can use percentages, do you think
there was a 50 percent chance he would fall, 20 percent,
80 percent?
. . .
A. Probably about 40 percent.
(Docket Entry 56 at 35-36.)
-5-
only way I’m coming down is on my own, head first.’”
Docket Entry 56 at 41).)
(Id. (quoting
Mr. Cook then lifted the stand’s safety
bar and jumped out of the stand.
(Id. (citing Docket Entry 56 at
41; Docket Entry 55 at 70).) In addition, Mr. Cook reportedly told
one of the emergency responders, Jeffrey Michael Penninger, that he
had cut his wrist (id. at 5 (citing Docket Entry 48 at 37 (“I did
ask him how he got the laceration on his wrist and he said he was
trying to cut his wrist”))), and had jumped from the stand (id.
(citing Docket Entry 48 at 38 (“The best I can remember is that he
told me he jumped out of the tree stand.”))).
In his deposition,
Mr. Penninger noted that Mr. Cook “had like a little minor cut on
one of his wrists and . . . it was very minor . . . [without]
really significant bleeding . . . .”
(Docket Entry 48 at 19.)
Based on the foregoing events, the Cooks pursue claims for:
(1) excessive force under 42 U.S.C. § 1983 against Deputy Thomas
and Sergeant Wensil in their individual capacities; (2) assault and
battery under North Carolina law against Deputy Thomas (in his
individual and official capacities) and Defendant Cabarrus County
Sheriff Brad Riley (in his official capacity); (3) for gross
negligence under North Carolina law against Deputy Thomas and
Sergeant Wensil (in their individual and official capacities) and
Sheriff Riley (in his official capacity); (4) for negligence under
North Carolina law against Deputy Thomas, Sergeant Wensil, and
Sheriff Riley in their official capacities; (5) for loss of
-6-
consortium under North Carolina law against Deputy Thomas, Sergeant
Wensil, and Sheriff Riley; and (6) for liability on official bond
under North Carolina law against Defendant Pennsylvania National
Mutual Casualty Insurance Company.
(See Docket Entry 1, ¶¶ 75-99,
103-08, 117-37; Docket Entry 39 at 1-2.)3
Deputy Thomas, Sergeant
Wensil, and Sheriff Riley (collectively, “Defendants”) have moved
for summary judgment on all such claims. (Docket Entry 34 at 1-2.)
II. Summary Judgment Standard
“The [C]ourt shall grant summary judgment if 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.”
P. 56(a).
Fed. R. Civ.
Such a genuine dispute exists if the evidence presented
3
The Complaint originally named as Defendants Deputy Thomas,
Sheriff Riley, John Doe, Richard Roe, and XYZ Corporation (Docket
Entry 1, ¶¶ 7-10) and brought the following eight claims: (1)
“Violation of Federal Constitutional Rights” (id. ¶¶ 75-99); (2)
“Violation of State Constitutional Rights” (id. ¶¶ 100-02); (3)
“Assault and Battery” (id. ¶¶ 103-08); (4) “Intentional and
Negligent Infliction of Emotional Distress” (id. ¶¶ 109-16); (5)
“Gross Negligence” (id. ¶¶ 117-23); (6) “Negligence” (id. ¶¶ 12430); (7) “Loss of Consortium” (id. ¶¶ 131-33); and (8) “Liability
on Official Bond” (id. ¶¶ 134-37). An amendment “delet[ed] John
Doe as a party Defendant and in lieu thereof insert[ed] [Sergeant]
Wensil as a party Defendant individually and in his official
capacity . . . .”
(Docket Entry 5 at 1.)
The amendment also
eliminated Richard Roe as a Defendant and substituted Pennsylvania
National Mutual Casualty Insurance Company for XYZ Corporation.
(Id. at 1-2.) The Cooks subsequently voluntarily dismissed the
state constitutional claims and the emotional distress claims via
written stipulation of the Parties. (Docket Entry 39 at 1-2.) By
the same stipulation, the Cooks dismissed the federal claim against
Sheriff Riley, the assault and battery claims against Sergeant
Wensil and against Sheriff Riley in his individual capacity, as
well as the negligence claims against Deputy Thomas and Sergeant
Wensil in their individual capacities. (Id.)
-7-
could lead a reasonable factfinder to return a verdict in favor of
the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In making this determination, the Court must view
the evidence and any reasonable inferences therefrom in a light
most favorable to the non-moving party.
Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party moving for summary judgment may discharge its burden
by identifying an absence of evidence to support the non-moving
party’s case.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 325
The non-moving party then must “set forth specific facts
showing that there is a genuine issue for trial.” Matsushita Elec.
Indus.,
475
original).
U.S.
at
586-87
(citation
omitted)
(emphasis
in
In this regard, the non-moving party must convince the
Court that evidence exists upon which a finder of fact could
properly return a verdict in favor of the non-moving party.
Anderson, 477 U.S. at 252 (citation omitted); see also Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006)
(“Mere unsupported speculation is not sufficient to defeat a
summary judgment motion if the undisputed evidence indicates that
the other party should win as a matter of law.”).
III.
Proximate Cause of Mr. Cook’s Injuries
As an initial matter, Deputy Thomas and Sergeant Wensil argue
they are “not subject [] to liability for use of excessive force
due to the fact that Mr. Cook . . . jumped from the stand after the
-8-
effects of the TASER had ended, and thus caused his own injuries.”
(Docket Entry 35 at 10.)
Deputy Thomas and Sergeant Wensil assert
that, after the TASER deployment, Mr. Cook said “‘I told you the
only way I’m coming down is on my own, head first.’”
(quoting Docket Entry 56 at 41).)
(Id. at 4
He then lifted the safety bar
and jumped.
(Id. (citing Docket Entry 56 at 40, 41; Docket Entry
55 at 70).)
Mr. Cook testified that, other than Deana Harrington
telling him to “[h]old on” and the sound of helicopter blades, he
does not remember anything from the time he felt the TASER strike
until he woke up in the hospital.
(Docket Entry 42 at 98-99.)
Four neighbors who witnessed the incident, however, stated in
their depositions that Mr. Cook fell rather than jumped from the
stand.
(Docket Entry 44 at 13, 14, 32, 42; Docket Entry 45 at 44;
Docket Entry 49 at 56; Docket Entry 53 at 31.)
Darryl Brooks, when
asked if “it look[ed] like [Mr. Cook] jumped in any way,” responded
“[n]o.”
(Docket Entry 49 at 56.)
Mr. Cook at the time.
He was “maybe 50, 60 feet from”
(Id. at 17.)
Karen Brooks, who was
“[p]robably 9 feet or maybe 10 [feet from the stand]” (Docket Entry
44 at 12), repeatedly testified that Deputy Thomas “shot [Mr. Cook]
and he fell” (id. at 13, 14, 32).
Nor did she “recall [Mr. Cook]
maneuvering under a bar before he fell.”
(Id. at 42.)
Another
neighbor, Steven Thompson, when asked if “it appear[ed] . . . [Mr.
Cook] fell or he jumped,” replied that “[h]e fell.”
45 at 44.)
(Docket Entry
Mr. Thompson was “probably about 15 feet” from Deputy
-9-
Thomas.
(Id. at 10.)
Deborah Bare, who thought she was “40 yards,
maybe,” from the tree stand (Docket Entry 53 at 47), said “[i]t
appeared to [her] that [Mr. Cook] fell” when asked “[d]id it appear
. . . [Mr. Cook] fell or that [he] jumped?” (id. at 31).
Citing Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir.
1998), Deputy Thomas and Sergeant Wensil argue “the Court should
ignore the conflicting witness statements and consider only the
facts from [them] and Mr. Cook.”
Sigman,
“officers
had
(Docket Entry 35 at 8.)
uncontroverted
evidence
of
a
In
suspect’s
dangerousness and knew that the suspect was armed and was behaving
violently within a residence.”
Rogers v. Pendleton, 249 F.3d 279,
292 (4th Cir. 2001) (describing Sigman).
The only factual dispute
concerned whether the suspect continued to brandish a knife at the
officers before they fatally shot him or whether, as two witnesses
claimed, he dropped the knife and raised his hands in surrender.
Sigman, 161 F.3d at 785-86.
the
discrepancies
in
The court in Sigman determined that
witness
difference of triable fact.
testimony
“need
not
signify
a
What matters is whether the officers
acted reasonably upon [the reports] available to them and whether
they undertook an objectively reasonable investigation with respect
to that information in light of the exigent circumstances they
faced.” Id. at 787 (emphasis in original).
In the circumstances of the case before it, the Fourth Circuit
found that the affidavits of the two witnesses could not
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effectively impact the credibility of [the officer’s]
testimony (or that of all five other officers on the
scene) as to his perception of what he saw from an
entirely different - and closer - vantage point,
especially when [the officer] had special knowledge of
[the suspect’s] dangerousness and of the threats that
[the suspect] had made on his [own] life.
Id. at 788.
The court “reject[ed] the argument that a factual
dispute about whether [the suspect] still had his knife at the
moment of shooting is material to the question of whether [the
firing
officer]
is
entitled
to
the
protections
of
qualified
immunity in the particular circumstances of this case.”
Id.
“Where an officer is faced with a split-second decision in the
context of a volatile atmosphere about how to restrain a suspect
who is dangerous, who has been recently - and potentially still is
- armed, and who is coming towards the officer despite officers’
commands to halt,” the court concluded that “the officer’s decision
to fire [was] not unreasonable.”
Id.
The reasoning in Sigman does not answer the question of
whether, to resolve summary judgment issues in this case, the Court
must consider only evidence from Deputy Thomas, Sergeant Wensil,
and Mr. Cook in determining whether a material question of fact
exists regarding whether Mr. Cook fell or jumped from the tree
stand.
The court in Sigman addressed the relevance, for summary
judgment purposes, of evidence as to events that preceded an
officer’s use of force.
See id.
The question of whether Mr. Cook
jumped or fell from the tree stand involves a matter of historical
-11-
fact subsequent to the decision to use force.
This distinction
renders Sigman inapposite on this particular issue.
Deputy Thomas and Sergeant Wensil have averred that Mr. Cook
jumped in an attempt to commit suicide.
(Docket Entry 35 at 4
(citing Docket Entry 56 at 40-41; Docket Entry 55 at 70, 97).)
Four witnesses testified that Mr. Cook fell after deployment of the
TASER.4
permit
Furthermore, as the Cooks have argued, the record would
a
finding
that
Mr.
Cook
“did
not
make
any
suicidal
statements and he did not take any actions which could reasonably
be construed by the officers as a suicide attempt.”
(Docket Entry
46 at 7 (citing Docket Entry 42 at 103-05, 110-13, 163-64; Docket
Entry 49 at 60; Docket Entry 45 at 34-35, 47, 49; Docket Entry 54
at 64, 84-85).)
Accordingly, when viewed in the light most
favorable to the Cooks, a material factual dispute exists as to
whether Mr. Cook voluntarily jumped from the stand, which the Court
cannot resolve in the context of a summary judgment motion.
4
See
Karen Brooks repeatedly testified that Deputy Thomas “shot
[Mr. Cook] and he fell.” (Docket Entry 44 at 13, 14, 32.) Another
exchange in her deposition appears as follows: “Q. The deputies
talk about a safety bar or railing and that [Mr. Cook] actually had
to bend under that bar, and that they claim he jumped. Do you
recall him maneuvering under a bar before he fell? A. No, sir.”
(Id. at 42.) Steven Thompson gave this account: “Q. And [the
officers’] statement also said [Mr. Cook] did this voluntarily, he
jumped. Did it appear to you that he fell or he jumped? A. He
fell.” (Docket Entry 45 at 44.) The transcript of the deposition
of Darryl Brooks reflects: “Q. Did it look like [Mr. Cook] jumped
in any way?
A. No.”
(Docket Entry 49 at 56.)
Deborah Bare
testified as follows: “Q. Did it appear to you that [Mr. Cook]
fell or that [he] jumped? A. It appeared to me that he fell.”
(Docket Entry 53 at 31.)
-12-
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(observing that, at summary judgment stage, “the court . . . may
not make credibility determinations or weigh the evidence”).
IV. Excessive Force
The Cooks contend that the actions of Deputy Thomas and
Sergeant Wensil “violated [Mr.] Cook’s civil and constitutional
rights protected by the Fourth Amendment of the United States
Constitution, specifically [his] right to . . . freedom from the
application of excessive and unreasonable force.” (Docket Entry 1,
¶ 76.)5
cannot
Deputy Thomas and Sergeant Wensil argue that this claim
proceed
because
they
“acted
reasonably
based
on
the
information available to them to prevent [Mr. Cook] from further
harming himself.”
(Docket Entry 68 at 1.)
They also assert that
the defense of qualified immunity bars any recovery “because Deputy
Thomas
and
Sergeant
Wensil
acted
reasonably
based
on
the
information available to them and in light of the circumstances
they encountered.”
(Id. at 2.)
5
The Complaint alleges violations of Mr. Cook’s Fourth
Amendment right “to freedom from unlawful search and seizure of his
person, to freedom from unlawful assault and battery, and to
freedom from the application of excessive and unreasonable force.”
(Docket Entry 1, ¶ 76.) However, the subsequent filings by the
Cooks make clear that the Fourth Amendment claim is one of
excessive force. (See Docket Entry 46 at 2 (“[Mr.] Cook filed this
civil rights action alleging excessive force claims under the
Fourth Amendment and North Carolina state law. . . .
[T]he
remaining claims . . . [include] [e]xcessive force under the 4th
Amendment . . . .”), 18 (noting that assault and battery claim(s)
arise under state not federal law).)
-13-
An analysis of the viability of Mr. Cook’s cause of action
under Section 1983 against Deputy Thomas and Sergeant Wensil merges
with the two-pronged determination of whether they enjoy qualified
immunity: “The government official will be granted immunity unless
(1) the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right, and (2) the right at issue was
clearly established at the time of the alleged misconduct.” Doe ex
rel. Johnson v. South Carolina Dep’t of Soc. Servs., 597 F.3d 163,
170 (4th Cir. 2010).
The Court may decide “which of the two prongs
of the qualified immunity analysis should be addressed first in
light of the circumstances of the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Violation of a Constitutional Right
All constitutional claims of excessive force that arise in the
context of “an arrest, investigatory stop, or other ‘seizure’ of a
free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard . . . .” Graham v. Connor, 490 U.S. 386,
395-96 (1989) (emphasis added).6
6
To succeed on such a claim, a
Deputy Thomas and Sergeant Wensil appear to claim that the
Fourth Amendment standard does not apply in this case because the
arrest warrant was “not the reason that Mr. Cook was TASERed.”
(Docket Entry 35 at 13.)
Rather, they argue “[h]e was TASERed
because he refused to drop the knife in his hand that he was going
to use to harm himself.”
(Id.)
The above-quoted language in
Graham makes clear that the Fourth Amendment “reasonableness”
standard applies not just in the arrest context, but rather to all
“seizures.” “A person is seized by the police and thus entitled to
challenge the government’s action under the Fourth Amendment when
the officer, by means of physical force or show of authority,
-14-
plaintiff must show that the defendant “inflicted unnecessary and
wanton pain and suffering.”
(1986).
Whitley v. Albers, 475 U.S. 312, 320
This determination involves utilization of an objective
standard, Graham, 490 U.S. at 395-96, to make a “careful balancing
of the ‘nature and quality of the intrusion on the individual’s
Fourth
Amendment
interests,’
against
the
countervailing
governmental interests at stake,” id. at 396 (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985)).
“[P]roper application [of this standard] requires careful
attention to the facts and circumstances of each particular case,
including the severity of the [event that authorized the seizure],
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether [the suspect] is actively resisting
[seizure] or attempting to evade [seizure] by flight.”
Id.
“The
terminates or restrains his freedom of movement . . . through means
intentionally applied.” Brendlin v. California, 551 U.S. 249, 254
(2007) (internal quotations, citations, and emphasis omitted).
Deployment of a TASER constitutes an intentional use of physical
force and/or show of authority that restrains the freedom of
movement of the person subjected to the TASER. See Cavanaugh v.
Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (“Although
Tasers may not constitute deadly force, their use unquestionably
‘seizes’ the victim in an abrupt and violent manner.”); United
States v. Lindsey, No. 11-CR-92, 2012 WL 1249521, at *5 (E.D. Tenn.
Apr. 13, 2012) (unpublished) (“Defendant was not seized until [the
officer] used his taser to subdue Defendant.”); Keller v. Town of
Colonial Beach, Civil Action No. 3:07CV433-HEH, 2007 WL 2985004, at
*4 (E.D. Va. Oct. 10, 2007) (unpublished) (ruling that individual
hit with TASER “was plainly seized within the meaning of the Fourth
Amendment”). The deployment of the TASER against Mr. Cook thus
qualifies as a seizure and, therefore, under Graham, the Fourth
Amendment reasonableness standard applies in this case.
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extent of the plaintiff’s injury is also a relevant consideration.”
Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003).
Although at
summary judgment the Court must view the evidence in a light most
favorable to the non-moving party, Matsushita Elec. Indus., 475
U.S. at 587, in an excessive force case, “the reasonableness of
[the officer’s] response must be gauged against the reasonableness
of [the officer’s] perceptions, not against what may later be found
to have actually taken place.”
Gooden v. Howard Cnty., Md., 954
F.2d 960, 965 (4th Cir. 1992).
In the instant case, Deputy Thomas and Sergeant Wensil assert
that they “had to act and did so to prevent Mr. Cook from
continuing to injure himself.”
(Docket Entry 35 at 10.)
They
further argue that the TASER deployment represented “a reasonable
decision that does not subject them to liability for use of
excessive force . . . .”
(Id.)
Notably, Deputy Thomas and
Sergeant Wensil do not contend that they acted reasonably in light
of the circumstances described in the version of events presented
by the Cooks.
(See Docket Entry 35 at 9-10.)
Rather, Deputy
Thomas and Sergeant Wensil rely on their own factual account in
concluding that they “did not breach any rights of [Mr. Cook] by
preventing him from harming himself further.”
(Id. at 9.)
In
contrast, the Cooks argue that “there are genuine issues of
material fact as to the facts and circumstances of Deputy Thomas’
use of force,” such that summary judgment “must be denied.”
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(Docket Entry 46 at 16.)
Whether Mr. Cook posed a threat to anyone
(including himself) represents a central issue in the instant case,
and a matter as to which material factual disputes exist.
1. Government Interest in Seizing Mr. Cook
Deputy Thomas and Sergeant Wensil assert that Deputy Thomas
“discharged his TASER to . . . prevent [Mr. Cook] from harming
himself further.”
(Docket Entry 35 at 1.)
In assessing the
government interest in that seizure, these facts stand undisputed:
1) Mrs. Cook took out a warrant on Mr. Cook after he “‘pushed
her down’” (id. at 2 (quoting Docket Entry 42 at 80));
2) Deputy Thomas and Sergeant Wensil “were aware that both Mr.
and Mrs. Cook had concealed carry weapon permits” (id. at 3 (citing
Docket Entry 55 at 35); see also Docket Entry 56 at 15), but never
observed a firearm in the stand with Mr. Cook (Docket Entry 35 at
3-4; see also Docket Entry 55 at 130-31; Docket Entry 56 at 69);7
3) Mr. Cook exhibited “slurred speech and appeared to be a
little impaired” (Docket Entry 46 at 5 (citing Docket Entry 56 at
45; Docket Entry 55 at 97-98)), and admitted taking prescription
pain and anxiety pills (id. (citing Docket Entry 42 at 89-90); see
also Docket Entry 35 at 3 (citing Docket Entry 56 at 44-45)); and
7
The record reflects a dispute between Mrs. Cook and Deputy
Thomas as to whether she told him Mr. Cook had taken a firearm with
him when he went out into the woods behind the house. (Compare
Docket Entry 43 at 45, with Docket Entry 56 at 19, 20-21.)
-17-
4) while in the stand, “Mr. Cook did not threaten either
officer and did not pose an immediate threat to their safety”
(Docket Entry 46 at 7 (citing Docket Entry 60, ¶ 29; Docket Entry
61, ¶ 41)).
The Parties, however, contest whether Mr. Cook posed a threat
to himself.
(Docket Entry 35 at 3-4; Docket Entry 46 at 7.)
Sergeant Wensil testified that Mr. Cook said “‘I guess I didn’t cut
myself deep enough’” (Docket Entry 35 at 3 (quoting Docket Entry 55
at 22)) and that he “would get the cut right the second time” (id.
(citing Docket Entry 55 at 22)).
Deputy Thomas averred that Mr.
Cook then “opened a knife” and refused to drop it, “despite Deputy
Thomas’s command” to do so.
(Id. (citing Docket Entry 56 at 70).)
The Cooks, on the other hand, contend that the record supports a
finding that Mr. Cook “did not have a knife or any other objects in
either one of his hands when he was tasered.”
(Docket Entry 46 at
7 (citing Docket Entry 42 at 131; Docket Entry 49 at 32-33; Docket
Entry 44 at 31, 53; Docket Entry 53 at 24, 44; Docket Entry 45 at
34-35, 40, 47, 49-50; Docket Entry 54 at 31, 62).)
In addition,
Mr. Cook testified he had “one arm on the back rail [of the stand]
and one hand on the safety bar.”
(Docket Entry 42 at 125.)
Further, witness Darryl Brooks averred that Mr. Cook “had his
hands up across the railing of the stand itself . . . [a]nd then
. . . he drop[ped] his hands and [was] just talking to the officers
with his hands in . . . a normal position, maybe around his lap.”
-18-
(Docket Entry 49 at 19.)
see a knife.”
Mr. Brooks also reported that he “didn’t
(Id. at 32.)
Witness Debra Bare testified that
“[Mr. Cook] wasn’t doing anything [with his hands].
He was being still.”
(Docket Entry 53 at 17.)
He was still.
She also did not
“see a knife or any weapon in [Mr. Cook’s] hands while he was in
the deer stand.”
(Id. at 24.)
Moreover, the Cooks have cited record evidence from which a
reasonable factfinder could conclude that Mr. Cook “did not make
any suicidal statements and he did not take any actions which could
reasonably be construed by the officers as a suicide attempt.”
(Docket Entry 46 at 7 (citing, inter alia, Docket Entry 42 at 104
(setting out denial by Mr. Cook that, in the ambulance, he said
that he “did not like [his] life and wanted to end it”), 110
(stating that he did not “use either [his] Swiss Army knife, or the
knife from [his] father to cut [his] wrist the day of [the]
incident”), 113 (testifying that he “didn’t cut [his] wrists with
a knife”); Docket Entry 49 at 60 (documenting testimony by Darryl
Brooks that he did not “ever see [Mr. Cook] with a knife, either
hand, cutting . . . his wrist or cutting any part of his body”);
Docket Entry 45 at 34-35 (reflecting testimony by Steven Thompson
that he “would [have been] able to see” if Mr. Cook “had a knife in
his hand” and that Mr. Cook did not hold up a knife), 47 (“That
right there is – this statement that they have in here [that Mr.
Cook pulled a knife from his pocket] is not true . . . .”), 49
-19-
(denying observation of Mr. Cook “‘pull[ing] out a Swiss Army knife
which
was
red
in
color’”);
Docket
Entry
54
at
64
(relating
testimony from Risa Thompson that, from “about 15 feet away, I
believe I could’ve seen him making motions, you know, doing that
[cutting his wrist], but I never - the only thing I saw was him
just leaning down.
I never saw him in a position to where [sic] I
thought he would do that.”), 84 (“I never saw a knife.”)).)
A series of Fourth Circuit cases on excessive force generally
indicate that a material factual question exists as to whether this
case involved circumstances that gave rise to a governmental
interest sufficient to justify a significant use of force.
First,
in Sigman, discussed previously, the Fourth Circuit upheld a grant
of summary judgment for the defendants in an excessive force case
in which law enforcement officers fatally shot a suspect.
161 F.3d at 788.
Sigman,
The plaintiffs in that case relied on two
witnesses in a crowd across the street from the incident, who said
the suspect had dropped his knife and raised his hands in surrender
before the shooting.
Id. at 786.
The court nevertheless found
that the witness affidavits could not
effectively impact the credibility of [the officer’s]
testimony (or that of [the other] five officers on the
scene) as to his perceptions of what he saw from an
entirely different - and closer – vantage point,
especially when [the officer] had special knowledge of
[the suspect’s] dangerousness and of the threats that
[the suspect] had made on his life.
-20-
Id. at 788.
The court ultimately “reject[ed] the argument that a
factual dispute about whether [the suspect] still had his knife at
the moment of shooting is material . . . in the particular
circumstances of th[at] case.”
Id.
The Fourth Circuit revisited Sigman in Rogers, 249 F.3d at
292, and noted that “Sigman does not stand for the proposition that
the objective facts of an encounter are always legally irrelevant
whenever an officer asserts that his perception of an encounter was
such as to justify his action.” Id.
The Fourth Circuit contrasted
Sigman with the case before it, in which a suspect arrested for
public intoxication challenged the lawfulness of his arrest because
he had only consumed one beer within a two-and-a-half hour time
frame, such that the officers could not reasonably have perceived
him as drunk.
Id. at 293.
The court determined that applying
Sigman to that case “would work an unwarranted extension of a
decision intended to protect officers making split-second selfdefense decisions into the realm of minor public morals arrests
which are manifestly unjust if disputed factual issues are resolved
in the nonmovant’s favor.”
Id.
Thereafter, the Fourth Circuit decided Schultz v. Braga, 455
F.3d 470 (4th Cir. 2006), a case which arose after federal agents
performed a “dynamic vehicle stop” because they reasonably believed
the vehicle carried the main suspect in a bank robbery and, during
the stop, shot a passenger in the face.
-21-
Id. at 473-74.
In
affirming the denial of summary judgment for the agent who shot the
passenger, the Fourth Circuit noted that
genuine issues of material fact remain[ed] as to whether
[the passenger] was making a noncompliant, dangerous
movement in the split second before [the agent] fired his
gun and whether [the agent], when he responded with
deadly force to [the passenger’s] movements, had probable
cause to believe the [passenger] posed a threat of
serious physical harm to the agents . . . .
Id. at 478 (internal quotations and citations omitted).
More specifically, the passenger claimed he “was moving his
whole upper body, hands raised, right towards the door handle to
unlock the door as commanded,” whereas the agent “contend[ed] that
the [passenger] failed to comply with repeated commands to raise
his hands and moved his body to the left, towards the inner console
of the car, with his hands down as if to retrieve a gun . . . .”
Id. (emphasis in original).
Under those circumstances, the Fourth
Circuit could not find,
viewing the evidence in the light most favorable to [the
passenger], . . . that a reasonable police officer in
[the agent’s] position could have believed that the
[passenger] was making a noncompliant movement that
pose[d] a threat of serious physical harm, either to the
[agent] or others, warranting the use of deadly force.
Id. (internal quotations and citations omitted).8
Furthermore, a court within this Circuit also has denied
summary judgment in a case somewhat analogous to the one at hand.
In Dent v. Montgomery Cnty. Police Dep’t, 745 F. Supp. 2d 648 (D.
8
Notably, in so finding, the Fourth Circuit did not reference
Sigman, thus showing the limited reach of said decision.
-22-
Md. 2010), the court denied the defendants’ motion for summary
judgment in an excessive force case involving the deployment of a
TASER against a suspected suicidal individual.
The officers, who
responded to a 911 call from a friend of the plaintiff, claimed the
plaintiff “acted with increasing levels of agitation and violence,”
kicked an officer, and bit another.
Id. at 658.
They reportedly
“warned [the plaintiff] that they would have to use their Tasers if
she
would
hospital.”
not
Id.
submit
to
being
handcuffed
and
taken
to
the
Conversely, the plaintiff insisted she “was not
aggressive toward the officers.”
Id.
In denying summary judgment
for the officers, the court concluded “there [we]re genuine issues
of material fact as to whether their actions were reasonable.” Id.
To sum up, the Fourth Circuit made it clear in Sigman that not
all disputed facts surrounding an officer’s use of force qualify as
material for purposes of assessing the government interest in
making a seizure (and thus the reasonableness of the officer’s
decision to use a particular level of force).
Sigman, 161 F.3d at
788 (noting that “[w]here an officer is faced with a split-second
decision in the context of a volatile atmosphere about how to
restrain a suspect who is dangerous, who has recently - and
potentially still is - armed [with a knife], and who is coming
towards the officer despite officers’ commands to halt,” the
question of whether or not the suspect “still had his knife at the
moment of shooting” is not material”).
-23-
Subsequent cases, however,
signify that the holding in Sigman does not apply broadly beyond
the facts of that case.
See, e.g., Rogers, 249 F.3d at 292-93
(distinguishing Sigman because officers there “had uncontroverted
evidence of a suspect’s dangerousness,” knew without dispute that
suspect was “armed and was behaving violently,” and needed to make
“split-second self-defense decision”).
In the instant case, a genuine factual dispute exists as to
whether Mr. Cook posed a threat to himself, a matter material to an
assessment of the governmental interest in seizing him (and thus
the disposition of the instant Motion).
On the one hand, Deputy
Thomas reported observing Mr. Cook raising a pocket knife to his
arm.
(Docket Entry 35 at 3 (citing Docket Entry 56 at 69-70).)
Indeed, both Deputy Thomas and Sergeant Wensil specifically averred
they saw a red-handled knife in Mr. Cook’s hand.
at 21; Docket Entry 56 at 72.)
(Docket Entry 55
Mr. Cook, however, testified that
he had “one arm on the back rail [of the tree stand] and one hand
on the safety bar” (Docket Entry 42 at 125) and that he did not
“possess a large red Swiss Army knife” while in the stand (id. at
131).
Other witnesses also gave testimony that conflicts with the
testimony on point by Deputy Thomas and Sergeant Wensil.
(See
Docket Entry 45 at 34-35, 47, 49; Docket Entry 49 at 60; Docket
Entry 54 at 64, 84-85).)
Taking the evidence in the light most
favorable to the Cooks, a factfinder thus could determine that Mr.
Cook did not move his hands in such a way as to allow Deputy Thomas
-24-
and Sergeant Wensil to form a reasonable belief that Mr. Cook had
a knife he intended to use on himself.9
Under these circumstances, the Court cannot find as a matter
of law that the government interest in using force against Mr. Cook
was other than very low, because Mr. Cook posed no threat to the
officers or the public, did not actively resist seizure, and
(viewing the evidence in the light most favorable to him) neither
made statements nor exhibited conduct that indicated suicidal
intent.
At most, the record (again, if construed in Mr. Cook’s
favor) requires the Court to credit, as a basis for any concern by
Deputy Thomas and Sergeant Wensil for Mr. Cook’s safety, only the
fact that he recently had a domestic row, took some prescription
medicine, and declined to come down from a tree stand.
Knowledge
of these facts simply does not establish as a matter of law that a
reasonable officer would perceive a grave threat of suicide.
2. Level of Force Used against Mr. Cook
Having deduced what the record reflects (for summary judgment
purposes) as to the governmental interest in using force, the next
9
Moreover, Mr. Cook neither actively resisted nor attempted
to flee. (Docket Entry 35 at 3-4; Docket Entry 46 at 6.) His
refusal to come down from the stand does not constitute the type of
resistance that would justify great force. See, e.g., Bryan v.
MacPherson, 630 F.3d 805, 829-30 (9th Cir. 2010) (distinguishing
between active and passive resistance and finding noncompliance
with command to remain in vehicle “does not constitute ‘active
resistance’ supporting a substantial use of force”); Estate of
Escobedo v. Bender, 600 F.3d 770, 780-81 (7th Cir. 2010) (observing
that armed individual who threatened suicide and would not leave
apartment “was not resisting arrest [or] fleeing from the police”).
-25-
step
in
“[d]etermining
the
reasonableness
of
the
challenged
actions” requires assessment of the “‘nature and quality of the
intrusion on [Mr. Cook’s] Fourth Amendment interests.’”
455 F.3d at 477 (quoting Graham, 490 U.S. at 396).
Schultz,
In this regard,
the Fourth Circuit has noted that a TASER “‘inflicts a painful and
frightening blow, which temporarily paralyzes the large muscles of
the body, rendering the victim helpless.’”
Orem v. Rephann, 523
F.3d 442, 448 (4th Cir. 2008) (quoting Hickey v. Reeder, 12 F.3d
754, 757 (8th Cir. 1993)).
It has further recognized that the
injury inflicted by a TASER “consist[s] of far more than the
resulting sunburn-like scar,” id., and that the injury from a TASER
does not qualify as “de minimis,” id. at 447-48.
Other circuits similarly have found a TASER deployment to
constitute a significant intrusion upon an individual.
630
F.3d
at
826
(describing
TASER
usage
as
See Bryan,
“intermediate,
significant level of force”); Cavanaugh v. Woods Cross City, 625
F.3d 661, 665 (10th Cir. 2010) (noting that TASER is “a weapon that
sends up to 50,000 volts of electricity through a person’s body,
causing
temporary
paralysis
and
excruciating
pain.
.
.
.
Accordingly, the nature and quality of the intrusion . . . [is]
quite severe.” (internal citations omitted)); Oliver v. Fiorino,
586 F.3d 898, 903 (11th Cir. 2009) (observing that TASER is
“designed to cause significant, uncontrollable muscle contractions
capable of incapacitating even the most focused and aggressive
-26-
combatants” (internal quotation marks omitted)); Hickey, 12 F.3d at
757 (“We find defendants’ attempt, on appeal, to minimize the pain
of being shot with a stun gun . . . to be completely baseless.
The
defendants’ own testimony reveals that a stun gun inflicts a
painful and frightening blow . . . .”).
Furthermore, in assessing the intrusion caused by a use of
force, courts have considered indirect injuries that result.
e.g.,
Bryan,
630
F.3d
at
824
(taking
into
account
See,
injuries
resulting from face-first fall onto pavement after TASER strike,
i.e., broken teeth, abrasions, and swelling). The Ninth Circuit in
Bryan
noted
that
“[a]
reasonable
police
officer
with
[the
defendant’s] training on the [TASER] would have foreseen these
physical injuries when confronting a shirtless individual standing
on asphalt.”
Id.
Thus, in evaluating the nature and quality of
the force used in this case, the Court properly may consider the
evidence that Mr. Cook suffered extreme derivative injuries from
the TASER deployment.
(See Docket Entry 46 at 8 (citing Docket
Entry 42 at 135; Docket Entry 43 at 57; Docket Entry 63 at 1-2).)
3. Comparing Government Interest and Level of Force
Viewing the evidence in the light most favorable to the Cooks,
a reasonable factfinder could conclude that Deputy Thomas’s use of
a TASER, particularly on an individual positioned, like Mr. Cook,
on a small elevated platform, was unreasonable and therefore
excessive in light of the minimal interest underlying the seizure.
-27-
Indeed, even if the record established, as a matter of law, that
Deputy Thomas and Sergeant Wensil reasonably perceived Mr. Cook as
having threatened self-injury with a knife, a factfinder could
conclude
that
the
instant
unreasonable use of force.
TASER
deployment
represented
an
As the Ninth Circuit recently noted,
“it would be odd to permit officers to use force capable of causing
serious injury or death in an effort to prevent the possibility
that an individual might attempt to harm only himself.”
Glenn v.
Washington Cnty., 673 F.3d 864, 872 (9th Cir. 2011).
In Glenn, the court reversed a grant of summary judgment to
defendant officers who shot a suspect with a beanbag gun when the
suspect held a knife to his own throat and threatened to kill
himself, but posed no threat to others.
found
“no
published
cases
holding
it
Id. at
878.
reasonable
The court
to
use
a
significant amount of force to try to stop someone from attempting
suicide.”
Id. at 872 (emphasis in original).10
Similarly, in
Escobedo, 600 F.3d at 780-81, the Seventh Circuit upheld a denial
of summary judgment where officers used tear gas and flash bang
devices to enter the apartment of a suicidal individual who posed
10
The Ninth Circuit did not address whether use of a TASER,
rather than a beanbag gun, would have constituted a reasonable
amount of force, but did observe that the department in question
generally “consider[ed] electrical stun devices to be lesser force
than [bean-bag] munitions.” Glenn, 673 F.3d at 877; see also id.
at 878 n.10. Moreover, given the facts of that case, the Ninth
Circuit had no occasion to consider how the precarious location of
the suspect might alter the assessment of the level of intrusion
associated with a particular TASER deployment. See id.
-28-
a threat only to himself.
In so doing, the Seventh Circuit ruled
that the district court “could reasonably question whether the
Defendant Officers had legitimate reasons to conclude that their
use of tear gas and flash bang devices in this situation was
acceptable,” id. at 780, particularly given that the suspect
neither posed a threat to anyone else nor attempted to flee or to
actively resist and that the officers did not know the location of
the suspect in the room, id. at 780-81.
In this case, a reasonable factfinder likewise could determine
that, even if Mr. Cook posed a threat to himself, the officers’
conduct qualified as unreasonable, and therefore excessive, under
the circumstances.
In other words, accepting that law enforcement
officers generally may use force to prevent an individual from
engaging in self-harm, the level of such force may not exceed that
reasonably warranted by any particular situation.
As discussed
previously, a TASER deployment constitutes a significant intrusion
upon an individual.
Furthermore, Mr. Cook was perched on a small
platform 15 feet in the air at the time of the TASER deployment.
(Docket Entry 46 at 4; see also Docket Entry 46-1.)
could
conclude
that
a
reasonable
officer
would
A factfinder
foresee
that
utilizing a TASER under such circumstances could cause the targeted
individual to fall and thereby to suffer serious harm, indeed, more
serious harm than cuts to a wrist with a Swiss Army knife.
-29-
Simply put, upon balancing the interests of the government in
using force with the level of force used (all the while taking the
record evidence in a light most favorable to the Cooks), the Court
should conclude that material questions of fact remain regarding
whether the instant TASER deployment constituted excessive force.
B. Established Constitutional Right at the Time of Injury
Because of the assertion of the qualified immunity defense,
the Court also must consider whether the constitutional violation
as to which the Cooks have raised a material factual dispute
involved a right then clearly established.
See Pearson, 555 U.S.
at
officers
231.
Qualified
immunity
“protects
who
commit
Constitutional violations but who, in light of clearly established
law, could reasonably believe that their actions were lawful.”
Henry v. Purnell, 652 F.3d 524, 532 (4th Cir. 2011). “The standard
is again one of objective reasonableness:
the ‘salient question’
is whether ‘the state of the law’ at the time of the events at
issue gave the officer ‘fair warning’ that his alleged treatment of
the plaintiff was unconstitutional.”
Jones, 325 F.3d at 531
(quoting Hope v. Pelzer, 536 U.S. 730, 731 (2002)).
For reasons discussed in the preceding subsection, taking the
record evidence in the light most favorable to the Cooks, a
reasonable factfinder could conclude that deploying a TASER against
someone in a tree stand who either posed no threat to anyone
(including himself) or, at most, posed only a limited threat to
-30-
himself (in the form of wrist-cutting with a Swiss Army knife)
constitutes
excessive
force.
Moreover,
in
seeking
summary
judgment, Deputy Thomas and Sergeant Wensil have failed to argue
that “the state of the law at the time of the events at issue [did
not
give
them]
fair
warning
that
[such
conduct]
.
.
.
was
unconstitutional,” Jones, 325 F.3d at 531 (internal quotation marks
omitted).
(See Docket Entry 35; Docket Entry 68.)
Instead, they
have focused on the notion that the record establishes as a matter
of law that they reasonably perceived Mr. Cook as on the verge of
cutting his wrist with a Swiss Army knife and that, as a result,
they properly could deploy a TASER against Mr. Cook despite the
risk he might fall.
Because (for reasons discussed in the prior
subsection) the record does not compel those conclusions, the Court
should decline to enter summary judgment for Deputy Thomas and
Sergeant Wensil on the Section 1983 claim notwithstanding their
assertion of a qualified immunity defense.
V. Assault and Battery
A. Deputy Thomas
The Cooks also seek recovery for assault and battery against
Deputy Thomas under North Carolina law, which provides that “‘a
civil action for damages for assault and battery is available at
common law against one who, for the accomplishment of a legitimate
purpose, such as justifiable arrest, uses force which is excessive
under the given circumstances.’”
Thomas v. Sellers, 142 N.C. App.
-31-
310, 315, 542 S.E.2d 283, 287 (2001) (quoting Myrick v. Cooley, 91
N.C. App. 209, 215, 371 S.E.2d 492, 496 (1988)).11
North Carolina
law, however, also recognizes an immunity doctrine, which declares
that “a public officer who exercises his judgment and discretion
within the scope of his official authority, without malice or
corruption, is protected from liability.”
McCarn v. Beach, 128
N.C. App. 435, 437, 496 S.E.2d 402, 404 (1998) (emphasis added).
The Fourth Circuit has observed that,
[u]nder North Carolina law, “[a] defendant acts with
malice when he wantonly does that which a man of
reasonable intelligence would know to be contrary to his
duty and which he intends to be prejudicial or injurious
to another.” An action is wanton if “it is done with
wicked purpose, or when done needlessly, manifesting a
reckless indifference to the rights of others.”
Alford v. Cumberland Cnty., No. 06-1569, 2007 WL 2985297, at *7
(4th Cir. Oct. 15, 2007) (unpublished) (quoting Grad v. Kaasa, 312
N.C. 310, 313, 321 S.E.2d 888, 890 (1984)).
In other words, this
doctrine precludes liability, unless the evidence would allow a
factfinder to conclude the officer took an action:
that
injury
would
result;
(2)
without
11
justifiable
(1) knowing
need;
(3)
In addressing claims under North Carolina law, this Court
“must rule as the North Carolina courts would, treating decisions
of the Supreme Court of North Carolina as binding, and departing
from an intermediate [North Carolina appellate] court’s fully
reasoned holding as to state law only if convinced that [North
Carolina’s] highest court would not follow that holding.” Iodice
v. United States, 289 F.3d 270, 275 (4th Cir. 2002) (internal
brackets and quotation marks omitted).
-32-
contrary to a reasonable officer’s perception of his or her duty;
and (4) with reckless indifference to another’s rights.
Deputy Thomas contends that, “[a]lthough [the Cooks] alleged
that [he] acted maliciously, there is absolutely no evidence to
support such claims.”
(Docket Entry 35 at 13.)
Rather, Deputy
Thomas asserts that “the testimony from [he and Sergeant Wensil]
shows they were trying to help [Mr. Cook] by preventing further
harm to himself.”
(Id.)
This argument again fails to allow for
the possibility that a factfinder could view the evidence in the
light most favorable to the Cooks (and thereby determine that no
reasonable officer could have perceived Mr. Cook as presenting a
serious threat to himself).
(See Docket Entry 35 at 13.)
Under
that construction of the record, the factfinder reasonably could
conclude that Deputy Thomas: (1) intentionally deployed a TASER in
a manner he knew would injure Mr. Cook (at minimum, by powerfully
shocking him and, possibly, by causing him to fall from a height of
15 feet); (2) did so needlessly; (3) in a fashion that a reasonable
officer therefore would recognize as contrary to his or her duty;
and (4) with reckless indifference to Mr. Cook’s rights.
As a result, the Court should conclude that disposition of the
state
law
assault
and
battery
claim(s)
requires
credibility
determinations and evidence weighing that cannot occur at the
summary judgment stage.
See Reeves, 530 U.S. at 150.
In effect,
for summary judgment purposes, the analysis of the instant assault
-33-
and battery claim(s) under North Carolina law mirrors the prior
analysis of the excessive force claim(s) under federal law.
See,
e.g., Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994) (“The
parallel state law claim of assault and battery is subsumed within
the federal excessive force claim and so goes forward as well.”).
Because a genuine issue of material fact exists as to the assault
and battery claim(s) against Deputy Thomas, the Court should not
enter summary judgment for him on said claim(s).
B. Sheriff Riley
The Complaint also includes claim(s) for assault and battery
against Sheriff Riley, based on principles of respondeat superior.
(See Docket Entry 1, ¶ 107.)12
Under North Carolina law,
[e]very person injured by the neglect, misconduct, or
misbehavior in office of any . . . sheriff . . . or other
officer, may institute a suit or suits against said
officer or any of them and their sureties upon their
respective bonds for the due performance of their duties
in office in the name of the State, without any
assignment thereof . . . .
N.C. Gen. Stat. § 58-76-5. “The statutory mandate that the sheriff
furnish a bond works to remove the sheriff from the protective
embrace of governmental immunity, . . . where the surety is joined
as a party to the action.”
Messick v. Catawba Cnty., N.C., 110
N.C. App. 707, 715, 431 S.E.2d 489, 494 (1993).
12
For state tort claims, unlike claims under Section 1983, the
doctrine of respondeat superior can apply. See W.E.T. v. Mitchell,
No. 1:06CV487, 2007 WL 2712924, at *10, 13 (M.D.N.C. Sept. 14,
2007) (unpublished) (Beaty, C.J.).
-34-
According to the Cooks, Sheriff Riley thus bears respondeat
superior liability for Deputy Thomas’s actions because Sheriff
Riley “furnished a bond or bonds payable to the State of North
Carolina conditioned upon the faithful execution of his office.”
(Docket
Entry
1,
¶
134
(internal
parenthetical
omitted).)
Moreover, the Answer admits that “Pennsylvania National Mutual
Casualty Insurance Company is the surety on the official bond of
Sheriff Riley . . . .”
(Docket Entry 9, ¶ 10.)
Accordingly, in
light of Messick, the Court should decline to enter summary
judgment for Sheriff Riley as to the assault and battery claim(s).
VI.
A.
Negligence
Deputy Thomas and Sergeant Wensil
The Cooks continue to pursue negligence claims against Deputy
Thomas and Sergeant Wensil (in their official capacities).
Docket Entry 39 at 2.)
(See
To make out a negligence claim under North
Carolina law, a plaintiff must show:
“(1) a legal duty; (2) a
breach thereof; and (3) injury proximately caused by the breach.”
Stein v. Asheville City Bd. of Educ., 369 N.C. 321, 328, 626 S.E.2d
263, 267 (2006).
Deputy Thomas and Sergeant Wensil seek summary
judgment on the instant negligence claims only on the ground that
the Court should strike the expert designation made by the Cooks.
(Docket Entry 35 at 14-15; see also Docket Entry 32.)
Specifically, according to Deputy Thomas and Sergeant Wensil,
if the Court strikes those experts, the Cooks “cannot satisfy two
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elements of their claims for negligence and gross negligence”
(Docket Entry 35 at 15), i.e., “a standard or breach of standard”
(id. at 14).
The Cooks respond that “there are no North Carolina
cases holding that the expert testimony of a law enforcement
officer is essential to a negligence or a gross negligence claim.”
(Docket Entry 46 at 19.)
As a result, the Cooks reason that, even
without their experts, the negligence claim(s) survive summary
judgment because “a jury could find from [the] evidence that the
officers failed to act in a reasonably prudent manner when they
tasered [Mr.] Cook . . . .”
Other
courts
in
this
(Id. at 20.)
Circuit
have
noted
that
“analysis
regarding [a plaintiff’s] Section 1983 claim governs analysis of
[parallel]
claims
alleging
theories
of
ordinary
negligence.”
McCloud v. Hildebrand, No. 5:07CV89-V, 2010 WL 4791075, at *8
(W.D.N.C. Nov. 16, 2010) (unpublished) (citing Sigman, 161 F.3d at
788-89, and Ingle v. Yelton, 345 F. Supp. 2d 578, 584 (W.D.N.C.
2004)).
Given this authority and the absence of case law holding
that a claim of negligence in this context requires expert support,
the
Court
should
decline
to
enter
summary
judgment
on
the
negligence claim(s) against Deputy Thomas and Sergeant Wensil.
B.
Sheriff Riley
For reasons stated in the discussion of the assault and
battery claim against Sheriff Riley, as well as in the discussion
of the negligence liability of Deputy Thomas and Sergeant Wensil,
-36-
the Court should decline to enter summary judgment for Sheriff
Riley on the instant negligence claim.
VII.
Gross Negligence
To make out their claims for gross negligence (Docket Entry 1,
¶¶ 117-23), in addition to the elements of negligence, the Cooks
must show “wanton conduct done with conscious or reckless disregard
for the rights and safety of others.”
Toomer v. Garrett, 155 N.C.
App. 462, 482, 574 S.E.2d 76, 92 (2002).
The instant Motion does
not seek summary judgment based on this additional element.
Docket Entry 35 at 14-15.)
(See
Rather, relying on the previously-
discussed contention that the Cooks cannot establish two of the
elements of negligence, the instant Motion asserts that they cannot
make out a claim for gross negligence. (Id.) Accordingly, because
the Court should deny summary judgment as to negligence, it should
permit the gross negligence claim to go forward as well.
VIII.
Loss of Consortium
Defendants assert that “Mrs. Cook’s [loss of consortium] claim
is wholly derivative from and dependent on Mr. Cook’s claims.”
(Docket Entry 35 at 17.)
Relying on the assumption that the Court
will grant summary judgment in their favor on the claims of assault
and battery, negligence, and gross negligence, Defendants argue
that “summary judgment as to [Mrs. Cook’s] claim for loss of
consortium should [therefore] be granted.” (Id.) However, because
the Court should deny summary judgment as to the claims of assault
-37-
and battery, negligence, and gross negligence, the Court also
should allow Mrs. Cook’s loss of consortium claim to proceed.
IX.
Liability on Official Bond
Finally, again prospectively relying on a grant of summary
judgment in their favor as to their other state law claims,
Defendants assert that “there is no basis for maintaining a suit
against the [surety on the official] bond.”
(Id. at 18.)
As with
the claim of loss of consortium, because the Court should not grant
summary judgment in favor of Defendants as to those other claims,
the Court also should deny summary judgment on the surety claim.
X.
Conclusion
The record reflects evidentiary conflicts regarding material
matters surrounding the TASER deployment that gave rise to this
case. Such disputes make resolution of the federal excessive force
claim(s) against Deputy Thomas and Sergeant Wensil dependent on
fact-finding unavailable at the summary judgment stage.
Moreover,
the
sorts
parallel
state
law
claim(s)
require
the
same
of
credibility determinations and evidence weighing.
IT
IS
THEREFORE
RECOMMENDED
that
Defendants’
Motion
Summary Judgment (Docket Entry 34) be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 15, 2012
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for
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