Hunt et al v. Smith et al, No. 7:2019cv00065 - Document 40 (E.D.N.C. 2020)
Court Description: ORDER granting 24 Motion for Summary Judgment; granting 28 Motion to Seal; and granting 36 Motion to Seal. Signed by Chief Judge Terrence W. Boyle on 6/8/2020. (Stouch, L.)
Download PDF
<![CDATA[
Hunt et al v. Smith et al Doc. 40 IN THE UNITED STATES DI STRI CT COURT FOR THE EASTERN DISTRICT OF N ORTH CAROLINA SOUTHERN DIVISION No . 7: l 9-cv-65-BO REB ECCA MUSE HUNT, by and through her Interim Guardians, Glynda Muse and Stephen Muse, GLYNDA MUSE, and STEPHEN MUSE, ) ) ) ) ) ) ) Plai ntiffs , ) V. DA IEL MAURICE SMITH, individually and in his official capacity, THE CITY OF LUMBERTON, MICHAEL MCNEILL, individually and in his official capacity as Chief'o.f Police , Defendants. ORDER ) ) ) ) ) ) ) ) Thi s cause is befo re the Court on defendants' motion for summary judgment. The parties have also moved to seal some of the exhibits in the record. For the reasons discussed below, the moti ons are granted. BACKGROUND T he parents of Rebecca Hunt ("Hunt"), ac ting as her appo inted interim guardians, brought th is actio n in Robeson Co unty Superior Court aga in st Officer Dani el Smith , Lumberton Chi ef of Poli ce Michael McNeil!, and the City of Lumberton fol lowing an officer-involved shooting that occurred on ovember 22, 2016. During the aftern oon of the date of the incident, Hunt had been drinkin g and smoking crack cocaine. She and a friend, Billy Hammond s, decided to drive to a Food Lion grocery store, w here Dockets.Justia.com she shop lifted alcoho lic beverages. The groce ry store alerted the police. After leav ing the Food Lion , Hunt and Hammonds drove to a Doll ar General store. Officer Smith was on patro l and spotted a truck in the Do llar General parking lot matching the description of the truck involved in the Food Lion larceny. After seeing Hunt, he parked his squad car behind , but to the left of, the truck . Officer Smith ordered Hammonds- w ho was in the dri ver' s seat- out of the vehicle. Against the driver-side of the truck with the driver-side door open , Officer Smith began the process of patti ng down and cuffing Hammo nds. H unt, who was still in the truck, moved from the front passe nger's seat into the driver 's seat, put the truc k in reverse, and dro ve backwards. Officer Smith had seen Hunt transfer seats and mo ved Hammonds clear of the vehicle before Hunt started dri ving. Officer Smith, however, was caught by the open door of the reversing truck and was propelled along with it. After reversing for about 2.5 seconds, the truck stopped , and then began to move fo rward at a slow pace, eventually coming to a full stop near the location it was originally parked . At some point during this brief, but attempted getaway, Officer Smith shot Hunt twice at point blank ra nge through the open driver-side doo rway . Hunt suffered severe injuries from the shooting. She was hospitalized for six months and had to undergo numero us surgeries. The med ica l bil ls from her hospitali zati on exceed $2.3 mi llio n. Hunt ' s parents, acting as her interim guardians , filed this lawsu it in state court in February 20 19. Their complai nt asserts the fol lowing causes of action: (1) an assaul t and battery claim against Officer Smith in his individual and official capacity; (2) an intentional/neg ligent infliction of emotional distress claim against Officer Sm ith and Police ChiefMcNei ll ; and (3) claims under 42 U.S.C. § 1983 that include un lawfu l use of deadl y force by Officer Smith and Monell claims against the City of Lumberton . Comp. ~~ 32-44, DE 1-5. Defendants removed the case to this 2 Court p ursuant to 28 U.S .C. § 144 1 and on March 2, 2020 , fo ll owing the close of discovery , moved fo r summary judgment. That motion is full y briefed and is ripe for d isposition . DISCUSSION '·The court sha ll grant summary judgment if the movant shows that there is no genuine d ispute as to any material fac t and the movant is entitled to judgment as a m atter of law. " Fed. R . Civ . P. 56(a) . " A disp ute is genuine if a reasonable jury co uld return a verdict for the nonmoving party , and fact is material if it might affect the outcome of the suit under the governing law." Vari ety Stores, Inc. v. Wal-Mart Stores, In c., 888 F .3d 651 , 659 (4th Cir. 2018) (internal quotations and alteratio ns om itted). Once the mov ing party meets its initial burd en und er Rul e 56(c), to survive sum mary judgment, the nonmoving party must prov ide sufficient evidence to demonstrate that th e re is a genui ne iss ue of material fact fo r tri al. Scott v. Harris, 550 U.S. 372, 380 (2007) . In determining whether a gen uine issue of material fact exists fo r trial , a co urt must view the evidence in th e light most favorab le to the nonm oving party unl ess the nonmovan t' s version of events is " blatantly contradicted" by th e record. Id. Moreover, " a mere scintill a of evidence" in support of the nonrn oving party ' s position is not sufficient to defeat a motio n for summary judgment. Thompson v. Potomac Elec. Power Co. , 3 12 F .3d 645 , 649 (4 th Cir. 2002) (internal quotati ons om itted). I. There is no gen uin e di spute of materi al fact A . Defendants' facts and ev idence In support of thei r summary judgme nt motion, defendants rely on, among other things: ( 1) Office r Smith 's depositi on, (2) Hunt ' s deposition , (3) an audio recording fro m the po li ce dep artment radio traffic system , and (4) video foo tage of the inci dent taken fro m the Dollar Genera l' s security system. From thi s ev id ence, defendants proffer the fo ll owing vers ion of events. 3 On November 22 , 20 16, Hunt started drinking a lcoho l and using crack cocaine around noon. Hunt Dep. at 62-63, 92- 94. Eve ntually , she met up with Hammonds. Id. at 97. They both smoked crack cocaine together and Hunt also drank more alcoho l for approximate ly two hours prio r to going to the Food Li on grocery store. Id. at 9 1, 93, 95-96, 99-101. Hunt went into the Food Lion intending to shoplift and she walked out w ith alcoho li c beverages witho ut paying. Id. at I 03- 05. Hunt and Hammonds then stopped at the Dollar General because she needed to use the restroo m. Id. at I 07. T hat afternoo n, Officer Smith was on so lo patrol. Smith Dep. at 3 1. At approximately 4:45 p .m., a larceny call came throu gh the open mic and Officer Bri an Ivy was dispatched to the call. Id. at 30 . The reported larceny occurred at the Food Lion on West 5th Street. Id. at 33 , 37. As reported , a white or Indian fe male had shop li fted and jumped into a blue truck w ith a male dri ver. Id. at 33. Officer Smith was less than a half mil e from the scene, so he responded as well. Id. Officer Smith advised di spatch that he was already in the area and was searching fo r the truck . Id. at 34. He had descripti on s of the truck, the su bj ects in the tru ck, and the license plate number. Id. Officer Smith saw the truck in the Do llar General parki ng lot. Id. at 36. He asked dispatch to confirm the description of the blue pickup truck from the Food Lion, as well as the subj ects in the veh icle and the license plate. Id. As he was pulling into the Dollar General , he saw Hunt wa lking toward s and getting into the vehicle. id. Officer Smith acti vated his blue li ghts and pulled in behi nd the truck, though not directl y behind it. Id. at 38-40. He confirmed w ith Officer Ivy additiona l details abo ut the tru ck havi ng a design on the tailgate and that the fema le suspect had blond hair and was wearing a pi nk sweater. Id. at 38 . T here were others in the Doll ar General parking lot at th at time. Id. at 62. 4 Officer Smith approached the vehi cle fro m the dri ver-side and identified him se lf as a police officer w ith the Lumberton Po li ce Department in ves ti gating a larceny that had occu rred earli er at Food Lion. Id. at 40--41 . He explained th at they matc hed the descripti on of the suspects. id. Hammonds was th e driver of the ve hicle and Officer Smith noticed that the passenger, Hunt, was breathing heavil y. id. Hammonds was cooperative and respo nsive, ex iting the vehicle w hen Officer Smith asked him . id. at 42--43. When Hammonds exited the vehicl e, it was left running . id. Office r Smith and Hamm onds stood in side the open dri ver-side doorway , between the open door and th e entrance to th e vehi cle. Id. at 44--45. Officer Smith noticed the smell of alcoho l co mi ng from Hammo nds. i d. at 47 . After patti ng him down, he fe lt somethin g in hi s pocket. i d. Ha mmonds sa id it was a knife, but upon removing it from the pocket, Officer Smith di scovered a crack pipe. Id. at47--48. W hi le in the process of cuffi ng Hammonds, Officer Smi th noti ced Hunt move in the vehicle. id. at 49 . He told Hunt to stop mov ing and th at he was detaining her. id. Hunt ignored Officer Smi th's comm ands and moved from the passenger's seat to the dri ver 's seat. Id. at 49, 5 1. Smith ye lled again at Hunt to sto p moving. Id. at 50- 51. Hunt did not respond to Officer Smith ' s command, but instead looked back towards him . Id. Officer Smith testifi ed th at she stared w ith '·p inpoint eyes pretty much burning a hol e thro ugh me. She was look ing like she was look ing at someo ne behind me ." id. at 51. Officer Smith we nt to reach fo r Hammond s' other hand , and noticed Hunt 's hand move in a downward motion, putting the truck in reverse. Id. at 49. Officer Smith moved Hammo nds away fro m the vehi cle. Id. at 52 . Officer Smi th call ed into the police departm ent mic attached to hi s left shoulder, "S heshe's drivi ng on me. She's dri vi ng on me." See Audio R. Officer Smith was hit by the open do or. Smith Dep . at 52. At th at mom ent, he fe lt he wou ld be trapped between his patro l ve hicl e and the 5 doo r of the acce lerat ing tru ck. I d He also fea red th at if he was kn ocked down , he would be run over by the fro nt w hee l of the truck. Id. at 52-53. To stop the threat, Offic er Smith fired two co nsecuti ve shots at Hunt with hi s service weapon- one from the hip and a second while he was " punchi ng out ." Id After the two shots we re fired, Officer Smith ho lstered his weapo n and radi oed, "S hots fired. Shots fir ed. She tri ed to run me over. " See Audi o R . Afte r firin g, Officer Smith saw Hun t's body go limp. Smith Dep. at 60- 6 1. He saw the truck ro lling fo rward and he ran to catch up w ith it and put it in park. Id. After Offi cer Smith detained Hammonds, which took approxi mately 45 seco nd s, he pull ed Hun t fro m the ve hic le and laid her on the gro und in order to help until EM S or back up could get there to reli eve him . Id. at 65- 66. Defendants contend th at their ve rsion of events is fu ll y corrobo rated by video fo otage fro m the Do ll ar General's security camera. The camera was located on the opposite side of the parking lot. The passenger-side of the tru ck- not the dri ve r-side where the shooting occurred- faced the security camera. The foo tage , whi ch is grai ny and low quality, shows Officer Smith 's squad car pull up and park behind the blue pi ckup truck, off the left side of the back bumper. Once out of hi s squad car, Officer Smith checks the li cense pl ate number on the rear of the truck before returnin g to the driver-side. A second fi gure- apparently Hammonds- emerges from the driver-sid e and the two individuals remain on that side of the tru ck by the dri ver-side door for abo ut 34 seco nd s. Hamm onds then moves back away from the tru ck whil e Officer Smith remains. Almost immed iate ly after Hammonds moves away , the ve hi cle rapidl y acce lerates bac kwards for 2.5 seconds during which time Office r Smith is gone from view of the camera. The truck j erks to a stop as the momentum from the movem ent appears to cause Offi cer Smith to continue backwards for a few fee t, w hi ch all ows him to emerge from behind the truck bac k into view. After pausing about 3 seco nds, the tru ck beg ins to roll fo rward at a slow pace. Offi cer Smith catches up to the 6 front driver-side, and the truck eventua ll y comes to a permanent stop near its original location. Although these detai ls are clear, the poor qua li ty of the video makes it imposs ible to see when Offi cer Smith drew hi s service weapon and fired into the truck. Consequently, Sco tt's instructi ons to view facts in the li ght depi cted by the video are of limited applicabi lity here. 550 U.S. at 38081. B. Plainti ffs ' facts and evidence Plainti ffs did not fi le an opposing statement of material facts as required by Local Civil Rule 56. 1(a)(2). Thi s rule requires that the party opposing a summary judgment motion submit a se parate state ment of mate ri al facts that respo nds to each numbered paragraph in the movant' s statement of material facts. Local Civil Rule 56.1 (a)(2). The rule fu rther provides that " [e]ach numbered paragrap h in the mov ing party' s statement of materi al facts wi ll be deemed ad mitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement. " Id. ; Un ited States v. Compassionate Hom e Care Servs., Inc. , No. 7: 14-CV-113-D,2017WL 1030706, at * l n.l (E. D.N.C.Mar.1 5, 201 7)(plaintiffs' statement of unco ntro verted fac ts deemed admitted when defendants did not submit oppos ing statement). The rul e al so all ows a party who beli eves that providing a statement of material fac ts wou ld be exceptio nall y burdensome to request an excepti on. Here, pl aintiffs have not requested any such exception. Accordingly, defendants' statement of material facts , the relevant porti ons of which the Court has chronicled above, is deemed admitted. Any concerns over the severity of enforcing thi s local rule are miti gated by two factors. First, defend ants' repl y brief, fi led on April 6, 2020, specifi call y call ed attention to thi s issue. Pl aintiffs have therefore had two months to fil e a surrep ly or supp lement the record with a statement of material facts but have chosen not to do so . 7 Second , thi s is not a situati on where th e Court would otherwise be di sregardin g an ex tensive evidentiary record submitted by th e nonmo vant supporting its position . In fact, plain tiffs' appendi x contains no evidence supp orting their version of the facts, w hi ch the Court deduces from th eir res ponse brief. Plainti ffs ' res ponse does not di spute that Hunt consumed crack cocaine and alco ho l throu ghout th e aftern oo n, shop lifte d at Food Li on, and reversed the tru ck whil e Office r Smi th was standing in the dri ver- side doorway. Pl ain tiffs, however, contend that Officer Smith shot Hunt not whil e she was reversing th e truck, but during the peri od that the truck was moving fo rward, away fro m Officer Smith. Pl ain tiffs assert that after initially reversing the truck, Hunt complied w ith Smith 's orders and began to move the vehicle forward but was shot even thou gh th e tru ck was movi ng away fro m Smith. Plainti ffs have brou ght fo rward no proper ev id ence to support this assertion . The lowquali ty video prov id es no suppo rt fo r th eir version of th e fac ts. H unt provided no depos ition testimo ny supporting her facts because her las t memory of the day was being inside the Do ll a r Ge nera l immedi ately prior to th e incid ent . Hunt D ep. at 113- 20 . Hammonds cannot be located and th erefo re has not provided any testim ony supporting plaintiffs ' ve rsion. Instead , plainti ffs ' evid ence and di scussion of th e facts is devo ted to chall enging th e credibility of Officer Smith ' s accou nt. Fo r instance, plain tiffs fil ed evidence of Offi cer Smith 's prior po li ce department reprim ands fo r sendin g inapp ro priate text messages to a fe ll ow offi ce and for insubordination . D E 35- 13. Pl aintiffs also specul ate that Offi cer Smith co uld not have assessed the situation , keyed hi s mi c, unsnapped his firearm ho lster, and fired two shots w ithin the 2.5 second s that th e tru ck was in reverse. P ls.' s Resp. at 13- 15. " [A]n oppo nent [to a summary j ud gment motion] may not prevail merely by di scredi ting th e credibility of th e mo vant' s ev idence; it must produce some affirm ati ve 8 evidence." Big Apple BMW, In c. v. BMW ofN. Arn., In c., 974 F.2d 1358, 1363 (3 d Cir. 1992) (citing Anderson v. L iberty Lobby, Inc., 477 U.S. 242 , 256- 57 (1986)). Plaintiffs ' on ly affirmative evidence is a two-page report by a hired consultant that purports to be an expert opinion. Meadows Rep ., DE 35- 16. The report opines that Officer Smith's version of the fac ts is not p lausib le, and therefore, concludes that Officer Smith fired his gun while the truck was paused or during its initi al fo rward motion. Id. This report is deficient, and the Court need not consider it for two reaso ns. First, it is neither sworn nor signed under the penalty of perjury. Se e, e.g., Whittaker v. Morgan State Univ , 524 F. App'x 58 , 60 (4th Cir. 20 13) ; Dole v. Ellio tt Travel & Tours, In c., 942 F.2d 962 , 968- 69 (6th Cir. 199 1); Doe v. Bd. of Educ. of Prince George 's Cly, 982 F. Supp. 2d 64 1, 660 (D . Md. 2013) . Second, it fai ls to provide sufficient facts to expla in its conclusion . M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., In c. , 98 1 F.2d 160, I 65 (4th Cir. 1992) (" An expert's affidavit that is wholl y conclusory and devoid of reasoning does not compl y with Fed. R. Civ. P. 56(e) ."). Accordi ngly , plaintiffs have brought fo rward no evidence supporting their version of the facts. In li ght of this, enforc ing Local Civil Ru le 56. 1(a)(2) is entirely appropriate, and defendants' statement of materi al facts is deemed admi tted. Therefore, there are no genuine issues of material fact for tri al. The Co urt next cons iders whether, on the ad mitted facts, defendants are entitled to j udgment as a matter of law. II . Defend ants are entitled to judgment as a matter of law To start, in their response bri ef, pl aintiffs exp li citly abandon their claims against Officer Smi th in his officia l capac ity and their Mo nell claim s against the C ity of Lum berton. On ly plaintiffs ' Fourth Amendment and tort claims remain . 9 Plaintiffs bring a Fourth Amendment excess ive force claim against Officer Smith. Smith argues that the deadly force emp loyed did not violate the Fourth A mendment and that, in any eve nt, he is en titl ed to qualified immun ity. Whether Officer Smith violated Hunt's Fourth Amendment rights bears on the qualified immunity issue, and so the Court add resses the merits of the constitutiona l vio lati on. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Co urts apply an objective reasonab leness stand ard to determine whether the use of force by a police officer vio lated the Fourth Amendment. Graham v. Co nnor, 490 U.S. 386, 397 (1989). The reasonableness of th e "force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vis ion of hindsight. " Id. at 396. Reasonabl eness must also allow "fo r the fact that police officers are of1en forced to make sp lit-second judgments- in circumstances that are tense, uncertain, and rap idl y evolvi ng[.] " Id. at 396- 97. Factors that bear on this inquiry include th e re lations hip between th e force needed and the force used , the extent of plaintiffs injury , the officer ' s effort to temper or limit the amount of force, and the security problem and threat perceived by the officer. Kingsley v. Hendrickson, 135 S. Ct. 2466, 24 73 (2015). It is well establi shed that "[a] police officer may use deadly force when the officer has probabl e cause to be lieve that the suspect poses a threat of serio us physical harm, either to the officer or others. " Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 200 1) (quotatio n and citation omitted). Here, Officer Smith had probable cause to believe that Hunt posed an imminent threat to his physical safety. At th e time of the shooting, Officer Smith was in the process of detainin g Hammonds on the driver-side of a truck . He smelled alcoho l on Hammonds and found a crack pipe in his pocket during the pat down. While attempting to detain Hammonds, Hunt moved from the passenger ' s seat into th e driver ' s seat . Officer Smith ordered her to sto p moving, but she was 10 unrespo nsive. Officer Smi th did not have any direct evidence that Hunt was heavily intoxicated, but the presence of the crack pipe on Hammonds and Hunt's complete non-responsiveness alo ng w ith her bl ank stare wo uld have raised the poss ibi li ty that she was not so ber. Officer Smith was then hit by the force of the open door of th e acce lerat ing pickup truck. Caught by the moving door, Officer Smi th perceived a threat to hi s physica l safety in that he could have been knocked down and run over by the fro nt w heel or pinned between the open door and hi s sq uad car. To stop this threat, Officer Smith grab bed hi s service weapo n and fired tw ice into the truck. Considering th ese factors, especiall y the immediacy of the threat and the split-second reality of the decision , the Court co ncludes that the use of force was objective ly reaso nable. T hi s determi nati on is consistent w ith a co ll ection of cases that all ow for an officer to use deadly fo rc e against a dri ver of a vehicle w hen the ve hicle poses an imminent threat of serious physical harm . See, e.g., Plumhojfv. Rickard, 572 U.S. 765, 776-77 (2014); Scott v. Harris, 550 U.S. 372, 383- 84 (2007); Wa terman v. Batton , 393 F.3d 471 , 478 (4th Cir. 2005 ). The reasoning of Waterman bears men ti oning . T he officers in that case shot a driver as he was attem pti ng to escape through a toll plaza area fo ll owing an extended car chase. Waterman, 393 F.3 d at 474. Fo ur offi cers we re positioned in front of the vehicle, rangi ng from 16 to 72 fee t away, although none were directly in its path. I d As the vehicle appro ached the toll plaza, it coasted at about 11 mph , before " lunging forward ," wh ich th e officers perceived as acceleration. Id at 474- 75. The officers fired at the ve hi cle, whi ch never accelerated to a speed above 15 mph. Id. Sti ll , the Co urt co ncluded that the officers had probab le cause to believe the vehicl e posed an immed iate threat of harm to the nearest officers. Id at 478. As exp lained: "although [the officers] could have held their fire and taken th e chance th at Waterman's acceleration in traffic was not fo r the purpose of committing another assault aga inst an officer, [t]he Constitution simpl y do es not 11 require police to gamble with their li ves .... "). Id. at 479. Similarly, stuck behind the open door of a reversing truck that was bein g driven by an unresponsive driver who was demonstrating erratic behavior, and faced w ith the split-second possibility of falli ng and being run over, Officer Smith was not required to simply hope that Hunt would hit the brakes and drive in the opposite direction . Because the Court concludes that Officer Smith did not vio late the Fourth Amendment, defend ants are entitled to summary judgment on plaintiffs ' excessive force claim. The "parallel state law claim of assault and battery is subsumed within the federal excessive force claim .... " Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). It also follows that because Officer Smith had probable cause to use dead ly force, his conduct was not negligent or "o utrageous and intol erable," as required for claims for IED and IIED, respectively. McAllister v. Ha , 347 N.C. 638, 645 (1998) ; Dickens v. Puryear, 302 N.C. 437,452 (1981). Defendants are therefore also entitled to summary judgment on the remaining state law tort claims. CONCLUSION Accordingly, for the forego ing reasons, defendants ' motion for summary judgment [DE 24] is GRA TED. For good cause shown , the unopposed motions to seal [DE 28, 36] are also GRANTED. The Clerk is DIRECTED to enter judgment in favor of defendants and close the case. f SO ORDERED, this - - - day of June, 2020. CHIEF UNITED ST A TES DISTRICT JUDGE 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
