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Burroughs v. Page

United States District Court, M.D. North Carolina

October 28, 2019

REBEKAH BURROUGHS, individually and as Administratrix of the ESTATE OF TODD BRENT BURROUGHS, D.B., individually by her Guardian Ad Litem, Donald R. Vaughn, and C.B., individually by his Guardian Ad Litem, Morgan Davis, Plaintiffs,
v.
SAMUEL S. PAGE, in his official capacity as Sheriff of Rockingham County, FRANK L. MARTIN and CHASE M. MYERS, each in his individual and official capacities, and LIBERTY MUTUAL INSURANCE COMPANY, as surety, Defendants.

          MEMORANDUM OPINION AND ORDER

          Loretta C. Biggs, United States District Judge

         This case arises out of the death of Todd Brent Burroughs. His widow and children allege violations of the Fourth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983, as well as various state-law claims.[1] (ECF No. 15 ¶¶ 48-76.) Before the Court is Defendants' Motion for Summary Judgment on all claims.[2] (ECF No. 42.) The parties present deeply conflicting accounts of the events leading up to and immediately surrounding Mr. Burroughs's demise. Mindful of this Court's responsibility at this stage to view the facts in the light most-favorable to the non-moving party, and for the reasons stated below, Defendants' motion will be granted in part and denied in part.

         I. BACKGROUND

         On May 28, 2016, Mr. Burroughs, his wife (“Ms. Burroughs”), and two of his minor children (“C.B.” and “D.B.”) attended the wedding of longtime friends. (ECF Nos. 61-1 at 3-4; 15 ¶ 10.) The ceremony and reception took place just a short drive from the Burroughs' home in rural Rockingham County, North Carolina. (ECF No. 61-1 at 5.) Mr. Burroughs served as a groomsman. (Id. at 3.)

         The reception ran late into the evening; by the time the family got into their truck to head home, it was after midnight. (Id. at 7.) Mr. Burroughs drove, Ms. Burroughs rode in the passenger seat, and the children rode in the back seat behind them. (Id.) En route to their home, the Burroughs used a semi-cleared area-a “cut-through”-as a shortcut between the highway and a local road. (Id. at 8.) As their truck emerged from the cut-through, it was spotted by Corporal Frank L. Martin (“Martin”) and Deputy Chase M. Myers (“Myers”) of the Rockingham County Sheriff's Department (together, “the Officers”). (Id. at 10; ECF No. 61-3 at 16-17.) The Officers were out performing routine “keep checks”-nighttime security patrols of local businesses-and the cut-through ran near to one of the properties on the Officers' checklist. (ECF Nos. 61-2 at 9-10; 61-3 at 12, 16-17.) A few seconds after the Officers noticed the Burroughs' truck, it turned out from the cut-through and began to travel along the road. (ECF No. 43-2 at 18; ECF No. 61-2 at 7.) The Officers followed. (ECF No. 43-2 at 16-17.) What happened next is subject to dispute.

         A. Defendants' Account

         The Officers present the following version of events: Shortly after the Burroughs pulled out from the cut-through, the Officers attempted to initiate an investigatory stop. (See ECF No. 61-2 at 11.) Given the late hour and the truck's proximity to a keep-check business, the Officers developed “a feeling in [their] stomach[s] that something didn't seem right.” (Id. at 9-10.) As the Burroughs drove away, Martin instructed Myers, who was driving their patrol car, to “accelerate” and “catch up.” (ECF No. 43-2 at 52-53.) After some initial fumbling, the Officers managed to activate their blue lights and siren, which they claim to have kept running throughout the “chase” that followed. (See Id. at 30, 53.) Martin recalls that the Burroughs were driving erratically: crossing the center line multiple times; failing to stop at a stop sign; neglecting to use a turn signal; and generally traveling at a high rate of speed, sometimes in excess of the speed limit. (See ECF No. 43-2 at 49-51.) The Officers continued to follow the truck for approximately two miles until both vehicles reached the Burroughs' driveway. (ECF No. 43-2 at 27-30.)

         Mr. Burroughs and the Officers exited their vehicles in front of the Burroughs' home. (Id. at 29.) Martin ordered Mr. Burroughs to “get back into the vehicle, ” but he did not comply. (Id.) Instead, Mr. Burroughs “walk[ed] toward the rear of his truck” with a “forced grin on his face” and “reached into the bed of the pickup.” (Id.) Martin, who, by that time, had drawn his X26 Taser, said “let me see your hands.” (Id. at 29-30.) When Mr. Burroughs again refused to comply, Martin “deployed the X26 Taser, striking [Mr. Burroughs] in his right side and towards his back.” (Id. at 31.) At first, Mr. Burroughs's arm was “trembling” and “jerk[ing], ” but he soon “appeared to be no longer under [the taser's] effects.” (Id. at 32.)

         Reaching back into the bed of the truck, Burroughs retrieved two beer cans and threw one of the cans at Martin, “striking [him] in [his] midsection” before opening the other can to drink, turning from Martin, and walking away. (Id. at 33-34; ECF No. 61-2 at 17.) Martin then “pulled [his] pepper spray and sprayed [Mr. Burroughs] in the back of his head, ” hoping that the spray would cause Mr. Burroughs to “submit to [his] directives.” (ECF No. 43-2 at 34.) In an apparent attempt to “diminish the effects of . . . the pepper spray, ” Mr. Burroughs poured the beer he was holding on top of his head until Martin pepper sprayed him again, this time in the face. (Id. at 35-36.) To relieve the effects of the second spray, Mr. Burroughs reached into the back door of his truck for a bottle of water. (Id. at 36-37.) Martin continued to give orders-“let me see your hands” and “get out of the truck”-while circling around and drawing his firearm. (Id. at 36.) Emerging with the bottle of water, Mr. Burroughs turned away from the vehicle and began rinsing his face and neck, leading Martin to deploy his pepper spray for a third time as Mr. Burroughs walked toward his residence. (Id. at 39-40.) “[I]n an effort to complete the arrest, ” Martin again used his taser to “drive-stun” Mr. Burroughs on his left side. (Id. at 41.) Mr. Burroughs “react[ed]” by “swat[ting] [Martin's] hand, arm[, ] and Taser away from his chest, ” which resulted in Martin himself becoming “tangled” in the taser's wires and “get[ing] the effects of it.” (Id.)

         Meanwhile, Myers, who had been standing off to the side, noticed the Burroughs' dog. (ECF No. 61-2 at 20.) Leashed to a chain, the dog was “barking, showing its teeth, ” and acting aggressively. (Id.) The dog lunged at Myers, who fired two shots at it, but missed his target both times. (Id.) Hearing the gunshots, Martin dropped his taser as Mr. Burroughs yelled, “Don't shoot my [expletive] dog.” (ECF No. 43-2 at 41.) Martin then drew his baton and struck Mr. Burroughs's right arm. (Id. at 41-42.) Mr. Burroughs “immediately turned toward [Martin] and rushed toward [him], driving [him] into the side of [the Burroughs'] vehicle.” (Id. at 43.) Mr. Burroughs then “wrenched” the baton out of Martin's hand, threw it to the ground, and then, almost immediately, picked it back up. (Id.) Slowly walking toward Martin, Mr. Burroughs was “shouting and cursing” while Martin told him repeatedly to “drop the baton.” (Id. at 44.) Mr. Burroughs then “feigned an attack[, ] . . . lunging forward quickly with his head and shoulders and his elbows bowing out.” (Id.) Martin “took about a half a step back” and said, “Drop the baton or I'll drop you.” (Id. at 45-46.) Mr. Burroughs took another step, and Martin fired two shots “center mass.” (Id. at 47.) Within a “fraction of a second, ” Martin saw Mr. Burroughs begin to raise the baton. (Id.) Realizing he was “under active attack, ” Martin shot Mr. Burroughs a third time. (Id.) Mr. Burroughs then “began to back up . . . sit . . . [and] go to the ground.” (Id.)

         As Mr. Burroughs fell, Martin “fe[lt] [his] leg shaking” and “realize[d] [he] was being dog-bit.” (Id.) The dog released Martin's leg, but, “to insure that [the Officers] could render aid safely without having to be worried about being dog-bit, ” Martin shot the dog. (Id.) Mr. Burroughs died shortly thereafter. (ECF No. 61-5 at 13.)

         B. Plaintiffs' Account

         Plaintiffs dispute critical portions of Defendants' account. As it relates to the initial “pursuit” of the Burroughs' truck, Ms. Burroughs, C.B., and D.B. have all stated that they neither saw blue lights nor heard a police siren until pulling into their driveway. (ECF Nos. 61-1 at 12; 61-4 at 3; 61-5 at 10-11.) Nor did a neighbor “hear any police sirens or see any blue lights” as the cars went by. (ECF No. 61-1 at 6.) In addition, while the Officers contend that the Burroughs vehicle “failed to stop at [a] duly erected stop sign” during the drive between the cut-through and the Burroughs home, Ms. Burroughs has a “very vivid recollection of . . . stopping.” (ECF Nos. 43-2 at 49; 61-1 at 11.)

         When the vehicles came to a stop in the Burroughs' driveway, Plaintiffs' evidence shows that Mr. Burroughs, aware of the patrol car for the first time, got out of his vehicle to “see what was going on [and] why [the Officers] were there.” (ECF No. 61-1 at 15.) Without identifying themselves, the Officers “jumped out and demanded [that he] get on the ground.” (Id. at 16-17.) As Mr. Burroughs asked “Whoa, whoa, whoa, what's going on?, ” Martin pulled his taser and deployed it. (ECF Nos. 61-1 at 15; ECF 61-3 at 32-34.) According to Plaintiffs, throughout the entire encounter, the Officers never stated whether or why Mr. Burroughs was being apprehended. (ECF No. 61-1 at 16-17.)

         Plaintiffs further dispute Defendants' characterization of Mr. Burroughs's behavior as threatening. In her deposition testimony, Ms. Burroughs states that she did not see Mr. Burroughs push Martin into the side of the truck, despite her vantage point from inside or nearby the truck itself. (See Id. at 14.) Moreover, Plaintiffs highlight several parts of the Officers' testimony in which Mr. Burroughs appears to be avoiding, rather than seeking confrontation. (See e.g., ECF No. 61-3 at 38 (testifying that Martin pepper sprayed Mr. Burroughs as he was “walking away”), 45 (stating that Mr. Burroughs “turned toward the house with the bottle of water, ” away from Martin).)

         Finally, Plaintiffs' evidence creates a genuine issue as to whether Mr. Burroughs had Martin's baton in his hand when he was shot and killed. According to her testimony, Ms. Burroughs got out of the truck when she heard Myers fire his weapon at the dog. (ECF No. 61-1 at 18.) From that viewpoint, “able to see both of [Mr. Burroughs's] hands clearly” in the headlights of the patrol car, Ms. Burroughs saw “nothing” in her husband's hands when he was shot. (Id. at 19-20.) D.B., who had also gotten out of the truck by the time of the shooting, agrees, and testifies that, moments before Martin fired, Ms. Burroughs actually told the Officers that “[Mr. Burroughs] has nothing in his hands.” (ECF No. 61-5 at 12-13.) C.B., too, states that “nothing” was in Mr. Burroughs hands when he was shot: “He threw the baton, and then his hands was up . . . and then that's when they shot him.” (ECF No. 61-4 at 4.)

         Plaintiffs bring five claims based on this sequence of events: (1) wrongful death; (2) negligent infliction of emotional distress; (3) violations of Mr. Burroughs's Fourth Amendment rights via unreasonable seizure and the use of excessive force; (4) violations of the surviving Plaintiffs' Fourteenth Amendment rights; and (5) action on the Sheriff's bond.[3](ECF No. 15.) Defendants now move for summary judgment based on qualified immunity as to Plaintiffs' federal claims and on public-official and governmental immunity as to Plaintiffs' state-law claims. (ECF No. 42.)

         II. DISCUSSION

         Summary judgment is appropriate when “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.” Fed.R.Civ.P. 56(a). “It is axiomatic that in deciding a motion for summary judgment, a district court is required to view the evidence in the light most favorable to the nonmovant[s]”-here, the Burroughs family-and to “draw all reasonable inferences in [their] favor.” Harris v. Pittman, 927 F.3d 266, 272 (4th Cir. 2019) (citing Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015)). “[T]hat obligation does not give way to a court's doubts about the credibility of a nonmoving party's account.” Id. This “usually means adopting . . . the plaintiff's version of the facts, ” even if it seems unlikely that the plaintiff would prevail at trial. See id.; Witt v. W.Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).

         A. Fourth Amendment Claims

         The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. In considering Fourth Amendment claims, the key inquiry is always the same: whether, in light of the specific circumstances of the case, the government's invasion of a citizen's personal security was reasonable. See Terry v. Ohio, 392 U.S. 1, 19 (1968). Because reasonableness is inherently context specific, courts must carefully balance “the nature and quality of the intrusion . . . against the ...


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