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Bennett v. City of Fayetteville

United States District Court, E.D. North Carolina, Western Division

July 24, 2017

CITY OF FAYETTEVILLE, CHRISTOPHER HUNT, both individually and in his official capacity as law enforcement officer with the Fayetteville Police Department, and HAROLD MEDLOCK, individually and in his official capacity as a law enforcement officer with the Fayetteville Police Department. Defendants.



         This cause comes before the Court on defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded to the motion and defendants have replied. Hearings were held before the undersigned on April 26, 2017, and on July 19, 2017, at Raleigh, North Carolina. In this posture, the motion is ripe for ruling. For the reasons discussed below, defendants' motion for summary judgment is granted.


         A. Factual background

         This case arises out of the death of a minor, S.M., who was shot by City of Fayetteville Police Officer Hunt (Hunt) following what began as a domestic violence call. The incident occurred on Sunday, October 13, 2013, at approximately six o'clock in the evening. Hunt responded to a home at 201 Bertram Place, which is located on a cul-de-sac in the Loch Lomond neighborhood in Fayetteville, after Algeria McNair (McNair) allegedly assaulted Alexis Smith, the mother of his child, during a visit. McNair's mother, Alfricka Bennett (plaintiff, Ms. Bennett), intervened to try to stop the assault but was unsuccessful. Ms. Bennett gave Smith her cell phone and Smith called her mother and then the police. Smith's mother also called the police and asked that they meet her at the entrance of the subdivision. When Alexis Smith's parents, Tony and Sheila Smith, arrived, a heated exchange occurred between Tony Smith and McNair.

         Defendant Hunt was the first officer to arrive at the scene and observed between five and ten people in the cul-de-sac, including Ms. Bennett, McNair, Alexis Smith, and Tony and Sheila Smith. After Hunt was told by Alexis Smith that she had been assaulted by McNair, Hunt placed McNair in handcuffs and began escorting him to his patrol vehicle. The evidence is in conflict as to what caused Hunt to begin chasing Ms. Bennett, but the parties agree that prior to placing handcuffed McNair in his patrol vehicle Hunt did chase Ms. Bennett from the street into the front yard of 200 Bertram Place, where Ms. Bennett either fell or was taken by Hunt to the ground. As Ms. Bennett was on the ground and Hunt was attempting to handcuff her, Ms. Bennett's children S.M. (sixteen years-old), A-a. B. and A-s. B.[1] (thirteen year-old twins), and McNair, who was still in handcuffs, were moving toward their mother. The parties offer different versions of the events which followed.

         Plaintiff's evidence

         Plaintiff contends that Hunt shot S.M. after S.M. heeded any command made by Hunt to stop advancing and that S.M. did not have a firearm. Plaintiff has proffered the testimony of Alexis Smith, Sheila Smith, S.M.'s younger twin siblings, and two later arrivals to the scene, Robert and Marciea Alford. Alexis Smith testified that during the relevant time period she could not see S.M.'s hands, whether he lifted his shirt, or whether or not he had a gun in his waistband. [DE 42-2; Smith, A. Dep. at 72]. Sheila Smith testified that from where she was lying on the ground in the street she did not see S.M. with a gun, that she heard Hunt command S.M. to stop and that S.M. did stop, and that S.M.'s right hand was down when he was shot. [DE 42-1; Smith, S. Dep. at 16-19]. The Alfords both testified that they arrived at the scene after the shooting, that they heard statements from bystanders that S.M. was unarmed when he was shot, and that they did not see a gun in the driveway or on the street. [DE 42-6; 42-7]. The affidavits of S.M.'s younger twin siblings state affirmatively that S.M. did not have a firearm when he was shot by Hunt. A-a. B.'s affidavit states that S.M. was shot first by Hunt in the thigh, that S.M. reached down and grabbed his thigh, and was then shot twice more in the stomach. [DE 42-5; B., A-a. Aff. at 4]; [DE 42-4; B., A-s. Aff.].

         Defendants' evidence

         Hunt contends that as he was trying to secure Ms. Bennett on the ground, a black male in a hooded sweatshirt, later identified as S.M., advanced toward Hunt at a steady pace, shaking his head left-to-right, saying "not today, this ain't gonna happen today, " and tapping his waistband. When S.M. got within about fifteen feet of Hunt, he changed directions as if to approach Hunt from behind. S.M. shifted so that the right side of his body faced Hunt in a defensive position Hunt described as "blading." After S.M. did not respond to at least four loud, clear commands to stop and show his hands, Hunt backed away from S.M. and S.M. continued to approach him. Hunt raised his gun at S.M. without his finger on the trigger, S.M. lifted his shirt, and Hunt saw a gun in S.M.'s waistband. S.M. then began to pull the gun out of his waistband and Hunt fired his weapon at S.M. S.M. was hit with three bullets and Hunt was about 10 feet away when from S.M. when he fired. [DE 31 -1; Hunt, Aff.].

         Once S.M. had fallen to the ground, Hunt kicked a gun away from S.M.'s hand through the grass and onto the concrete driveway of 200 Bertram Place. Hunt then handcuffed S.M., returned to Ms. Bennett, and used his radio to call for backup and paramedics. The backup officers arrived and provided aid to S.M. S.M. was transported by the paramedics to a local hospital where he later died. Fayetteville police officers remained at the scene of the shooting until agents of the North Carolina State Bureau of Investigation arrived to take control of the investigation and custody of a black High-point 9 mm handgun that was lying in the driveway of 200 Bertram Place. [DE 31-9; Hardin Aff.]; [DE 31-6; Beldon Aff. and Ex. A]; [DE 31-7; Bohannon Aff]. Video evidence from Officer Washington's and Officer Lewis' dashboard cameras shows the presence of a black object which appears to be a gun in a driveway on their arrival at the scene just minutes after S.M. was shot. See [DE 31-13; Washington Aff. and Ex. A]; [DE 31-4, Lewis Aff. and Ex. A]. Officer Lewis' dashboard camera further reveals an orange evidence cone being placed next to the black object later in the evening. Lewis Aff. Ex. A. at 19:57.

         An audio and video recorder inside of Hunt's patrol car captured McNair's spontaneous statements while he was handcuffed and alone inside the vehicle after the shooting. McNair makes a number of statements, including that they would tell the police that the maintenance man left the gun there and that it was neither McNair's nor his brother's gun, that he (McNair) should have told him to keep that gun back, that his brother should have left the gun in the house, and why did his brother bring the gun out. [DE 31-1; Hunt. Aff. Ex. A&C. atapprox. 18:18; 18:34; 18:37; 18:40; 18:52]. An autopsy revealed that S.M. was shot three times: once in the right abdomen, once in the right buttock, and once in the right elbow. [DE 31-14].

         B. Procedural posture

         Ms. Bennett filed this action in Cumberland County Superior Court for wrongful death-negligence and gross negligence by the City of Fayetteville, for negligence and gross negligence by defendant Medlock in his individual and official capacities for failing to establish reasonable policies and negligent hiring and training of defendant Hunt, for negligence and gross negligence against defendant Hunt in his individual and official capacities, for punitive damages, for violation of S.M.'s Fourth and Fourteenth Amendment rights by defendants under 42 U.S.C. § 1983, and for deliberate indifference to civil rights by the City of Fayetteville and defendant Medlock under 42 U.S.C. § 1983. Defendants removed the action to this Court pursuant to its federal question jurisdiction. 28 U.S.C. § 1441. In their motion for summary judgment, defendants argue, among other things, that governmental immunity shields them from liability on plaintiffs tort claims, that plaintiffs official capacity claims should be dismissed as duplicative, that the excessive force claim should be dismissed because ...

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