United States District Court, M.D. North Carolina
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,
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
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. (ECF No. 15 ¶¶ 48-76.) Before
the Court is Defendants' Motion for Summary Judgment on
all claims. (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.
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.)
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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).)
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.)
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.(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.)
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)).
Fourth Amendment Claims
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 ...