United States District Court, E.D. North Carolina, Western Division
MICHELLE MCRAE, Administrator for the Estate of Kevin Dijon Grissett, Plaintiff,
JACOB RANSONE PFEFFER, individually, Defendant.
W. FLANAGAN United States District Judge
matter is before the court on plaintiff's motion for new
trial. (DE 168). The motion has been fully briefed, and in
this posture, the issues raised are ripe for ruling. For the
following reasons, the court denies plaintiff's motion.
trial in this matter commenced February 20, 2019, on claims
brought by plaintiff, as representative for the estate of her
deceased son, Kevin Dijon Grissett (“Grissett”),
alleging excessive force used by defendant Jacob Pfeffer, law
enforcement officer with the town of Hope Mills police
department. All claims arise out of a February 1, 2014,
traffic stop and ensuing pursuit which concluded when
defendant shot Grissett multiple times. Grissett died from
complications of the shooting.
special interrogatory was submitted to the jury on February
28, 2019, in which the jury determined Grissett was not
complying with defendant's instructions at the moment he
was first shot. Based on this finding, the court held as a
matter of law that defendant was entitled to qualified
immunity under federal law and public officer immunity under
North Carolina law, thus rendering judgment in favor of
defendant. Plaintiff filed the instant motion on March 15,
2019, seeking new trial.
case background purposes, the court incorporates herein by
reference the statement of the case and statement of facts
from its March 30, 2018, order on defendant and
formerly-named defendants' motions for summary judgment.
(See Sum. J. Order (DE 79) at 1-8). The court
describes the evidence introduced at trial in more detail in
the analysis herein.
Standard of Review
trial may be granted if “(1) the verdict is against the
clear weight of the evidence, or (2) is based upon evidence
which is false, or (3) will result in a miscarriage of
justice, even though there may be substantial evidence which
would prevent the direction of a verdict.” Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.
1998). On a motion for new trial, the court is
“permitted to weigh the evidence and consider the
credibility of witnesses.” Id. “The
decision to grant or deny a new trial is within the sound
discretion of the district court.” Id.
“Unless justice requires otherwise, no error in
admitting or excluding evidence . . . is ground for granting
a new trial, ” if the error “do[es] not affect
[a] party's substantial rights.” Fed.R.Civ.P. 61;
see Duty v. E. Coast Tender Serv., Inc., 660 F.2d
933, 942 (4th Cir. 1981).
of Special Interrogatory
relevant, undisputed facts presented at trial are as follows:
On the day in question, defendant attempted to pull over a
vehicle driven by Grissett and a roughly 10-minute car chase
ensued, ending with Grissett's vehicle striking two
police officer vehicles, including defendant's. Defendant
then exited his vehicle, moved towards Grissett's
vehicle, and directed Grissett to put his hands up, to which
Grissett initially complied.
issue disputed at trial was under what circumstances, when
defendant arrived at Grissett's vehicle, did defendant
open fire on Grissett, with plaintiff contending Grissett was
immobile, with his hands up as directed, and defendant
contending Grissett was lunging into the floorboard for what
defendant perceived to be a weapon.
The following was submitted to the jury, following trial, in
the form of special interrogatory:
Plaintiff contends that Kevin Grissett was complying with
defendant's instructions at the moment he was first shot.
Was Kevin Grissett complying with defendant's
instructions at the moment he was first shot?
jury marked “NO” in response and the court found
as a matter of law based on this response that defendant was
entitled to qualified immunity and public officer's
immunity, rendering verdict in defendant's favor.
See, e .g., Anderson v. Russell, 247 F.3d
125, 128, 132 (4th Cir. 2001) (holding that officers were
entitled to qualified immunity for shooting a man suspected
of carrying a gun who initially complied with commands, but
later lowered his hands and reached into his back left pocket
toward a bulge under his clothing); Slattery v.
Rizzo, 939 F.2d 213, 214-17 (4th Cir. 1991) (holding
that the shooting of an individual, suspected of narcotics
trafficking, was objectively reasonable when the suspect
ignored commands to raise his hands and turned in the
officers' direction with his hand partially closed around
an object); Smith v. State, 289 N.C. 303, 331 (1976)
(“As long as a public officer lawfully exercises the
judgment and discretion with which he is invested by virtue
of his office, keeps within the scope of his official
authority, and acts without malice or corruption, he is
protected from liability.”).
does not argue that based on the jury's response to the
special interrogatory, defendant was not entitled to
immunity. Additionally, plaintiff admits that
“plaintiff did not object to the formation” of
the special interrogatory when submitted to the jury. (DE 171
at 8). However, plaintiff now argues that “both the
Court and the Plaintiff operated under the misapplication of
the law as presented by Defendant, ” and that
“the instructions given by Defendant Pfeffer is a
totally separate and legal distinct question from whether
Defendant Pfeffer used excessive deadly force, ” which
should have been submitted to the jury. (Id. at
support, plaintiff cites United States v. Burton,
228 F.3d 524 (4th Cir. 2000); however, Burton is of
limited relevance in the present context, where the United
States Court of Appeals for the Fourth Circuit held as
In asserting that officers are entitled, during a
police-citizen encounter, to conduct a limited search for
weapons when a reasonable officer in similar circumstances
would believe that his safety was in danger, the government
misconstrues the relevant principles of Fourth Amendment
jurisprudence. In the language of the Supreme Court, Burton
had a “right to go about his business or to stay put
and remain silent in the face of police questioning, ”
. . . and an individual's “refusal to cooperate,
without more, does not furnish the minimal level of objective
justification needed for detention or seizure, ” .....
There is no evidence in the record that Burton made any moves
as Officer Burke approached. He simply continued to stand by
the telephone booth with his hand in his pocket. He did
refuse to talk with the policemen and to remove his hand from
his pocket, but something more is required to establish
reasonable suspicion that criminal activity is afoot. And in
the absence of reasonable suspicion, an officer may ...