United States District Court, E.D. North Carolina, Western Division
ALFRICKA BENNETT, ADMINISTRATRIX FOR THE ESTATE OF S.M., Plaintiff,
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.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
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.
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.
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. (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.
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.,
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,
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.
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].
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 ...