Lee v. Town of Seaboard

• Decision Date: 25 March 2016
• Docket Number: No. 2:13-CV-20-D,2:13-CV-20-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: BRIAN C. LEE, SR., Plaintiff, v. THE TOWN OF SEABOARD, Defendant.

BRIAN C. LEE, SR., Plaintiff,
v.
THE TOWN OF SEABOARD, Defendant.

No. 2:13-CV-20-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DIVISION

March 25, 2016

ORDER

On July 17, 2013, Brian C. Lee, Sr. ("plaintiff" or "Lee") filed an amended complaint against the Town of Seaboard, North Carolina ("defendant" or "Town of Seaboard") [D.E. 13]. Lee's claims of assault and battery and negligence remain. The claims concern injuries that Lee sustained after one of the Town of Seaboard's police officers, Sergeant Harold Gray Phillips, Jr. ("Sergeant Phillips"), shot him. See id.

On June 26, 2015, the Town of Seaboard moved for summary judgment [D.E. 64], and Lee moved for partial summary judgment [D.E. 66]. Thereafter, each party responded [D.E. 70, 71] and replied [D.E. 74, 75]. Under North Carolina law, a law enforcement officer is justified in using deadly force upon another person to defend himself or a third person from what the officer reasonably believes to be the use or imminent use of deadly physical force. See N.C. Gen. Stat. § 15A-401(d)(2). Because Sergeant Phillips's conduct was justified under section 15A-401(d)(2), the court grants the Town of Seaboard's motion for summary judgment and denies Lee's motion for partial summary judgment.

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I.

On the evening of May 14, 2010, Lee drove from Norfolk, Virginia, to Seaboard, North Carolina, to attend a party at a local Elks Lodge. Am. Compl. [D.E. 13] ¶ 11. Before leaving Norfolk, Lee drank alcohol at a wake. Lee Dep. [D.E. 72-1] 125-26.¹ After the wake, Lee drove his brother Michael Lee and his friend James Orr to Seaboard. See id. 127.

Lee and his two companions arrived to the Elks Lodge party at around 9:00 or 9:30 p.m. Id. 132. Lee drank alcohol at the party. Id. 151-52. A large crowd attended the party that evening, and most people were dancing and drinking alcohol. Id. 151-52, 154-55. Two Town of Seaboard police officers, Officer David Twine ("Officer Twine") and Sergeant Phillips, also attended. Am. Compl. ¶¶ 12-13; Ans. to Am. Compl. [D.E. 17] ¶¶ 12-13. Specifically, Sergeant Phillips was on duty and "patrolled the area around the Elks Lodge" in his official capacity. Ans. to Am. Compl. ¶ 13. Officer Twine "provided security for the party that night and did so in an off duty capacity." Id. ¶ 12; Reed Dep. [D.E. 72-3] 37-38.

After the party ended, approximately twenty or thirty people (including Lee) remained inside the Elks Lodge. Lee Dep. 153. Lee helped his cousin Ernest Flythe disassemble and pack his deejay equipment. Id. 161. When Lee exited the Elks Lodge, Lee found that "there was tension in the air with the Seaboard crowd" concerning Lee, Michael Lee, and Orr. Id. 161-62. Lee alleged in his complaint that some partygoers were upset because he and his two companions had been "somewhat popular that evening." Compl. [D.E. 1] ¶ 14; Am. Compl. ¶ 14. In his deposition, Lee testified that "never knew why" the Seaboard crowd was upset with him. Lee Dep. 161-62, 164. In any event, while Lee was in the Elks Lodge parking lot, around fifteen to twenty men began to "say[ ] stuff"

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to Lee and his two companions. Id. 162.

While Lee was walking to his car, one man in the crowd threw a drink on Lee. Id. 163. Another man hit Lee "in the face with [his] fist." Id. 164. Officer Twine and Sergeant Phillips observed the crowd and escorted Lee, Michael Lee, and Orr to Lee's car. Lee, Michael Lee, and Orr eventually got into Lee's car, and Sergeant Phillips told Lee to leave the parking lot. See Twine Dep. [D.E. 66-4] 39-41; Williams Aff. [D.E. 64-2] ¶¶ 3-8. Instead of leaving, Lee then exited his car and attempted to open his trunk in order to get a towel to wipe off the drink that had been thrown on him. Lee Dep. 165, 168. The officers, however, did not allow Lee to open his trunk, fearing he might remove a weapon. See Twine Dep. 90-91; cf. Lee Dep. 169 ("I don't know who closed the trunk . . . . I don't recall that part."). Lee then reentered his car. Lee Dep. 169. At that point, the Seaboard crowd grew angrier and began to jump on and kick Lee's car. Id. 165, 169-70. The Seaboard crowd "smashed in" the front windshield. Id. 165. Lee "decided to pull off." Id. 168; see Williams Aff. ¶¶ 3-8.

Lee began to drive his car while people were still standing on the car's hood. Lee Dep. 170. Orr and Michael Lee were seated in Lee's car when Lee began to drive to exit the parking lot. Twine Dep. 41-42. There also were people standing in the Elks Lodge parking lot when Lee began driving. Some of the people were very close to Lee's car and could have been hit by it. Lee Dep. 171. While still in the Elks Lodge parking lot, Lee repeatedly revved his car engine. Id. 172. When Lee reached Jordan Street, he turned left towards Jordan Street's dead end. Id. 171-72. Some pedestrians chased Lee's car, attempting to attack the car. See Phillips Dep. [D.E. 65-6] 59. Sergeant Phillips also chased Lee's car, attempting to arrest Lee because he believed that he saw Lee's car hit an individual in the parking lot. Id. 59-60, 88-89. Other pedestrians remained in the parking lot. See Phillips Dep. 39-40; Richardson Aff. [D.E. 64-1] ¶¶ 9-15.

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As Lee approached Jordan Street's dead end, Lee had little visibility because the "windshield was smashed in[ ] and the crowd was still hanging on the car." Lee Dep. 173-74. After reaching the dead end on Jordan Street, Lee turned his car around and drove off the road. Id. 175.

As Lee was turning his car around, Officer Phillips retreated on Jordan Street towards the Elks Lodge. Phillips Dep. 37. Lee then began driving from the dead end on Jordan Street towards the Elks Lodge. At that point, Sergeant Phillips drew his weapon and shouted at Lee to "stop the car, stop the car." Id. 37-38, 83. Lee did not stop his car. Id. 37-38, 83-84. Sergeant Phillips then moved off Jordan Street, to the side of the road opposite the Elks Lodge. Id. 37-38; Cloutier Dep. [D.E. 71-2] 33. Lee's car began to accelerate, and the crowd of people attacking his car fell behind him. Lee Dep. 175-76 ("I don't know how fast. Probably about 15, 20 miles per hour."); Phillips Dep. 37-38, 81-82, 86. Lee then swerved off the road, tracking towards Sergeant Phillips. Phillips Dep. 83-84; see Cloutier Dep. 33 ("[The tire] impressions from Mr. Lee's vehicle . . . actually go off the road into a portion of the yard at 200 Jordan Street"). Sergeant Phillips was concerned about his safety and the safety of anyone further up Jordan Street, either in or near the Elks Lodge parking lot or walking on Jordan Street. See Phillips Dep. 37-38, 83-85.

Lee's car continued to approach Sergeant Phillips. Id. Due to Lee's erratic driving, Officer Twine and the pedestrians in and near the Elks Lodge parking lot ran for cover. See Twine Dep. 50; Richardson Aff. ¶¶ 13-14.

The parties dispute whether Lee's car hit Sergeant Phillips. Compare Lee Dep. 188 ("Is it possible you hit Sergeant Phillips that night? I really don't think so. You can tell if you hit somebody."), with Phillips Dep. 90 (testifying that Lee's car hit him); compare also Am. Compl.

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¶ 40, with Ans. to Am. Compl. ¶ 40.² The parties also dispute whether Sergeant Phillips could have hidden behind a van parked on the side of Jordan Street before Lee's car came close to him. Compare Phillips Dep. 92-93, with Cloutier Dep. 28-29. In any event, the parties agree that Sergeant Phillips was within "five to ten feet away from the driver's door when he fired [two shots towards] Lee's car." Am. Compl. ¶ 40. When Sergeant Phillips fired his weapon, Lee's car was about even with Sergeant Phillips, and Lee had not yet passed the Elks Lodge, including the remaining pedestrians. Lee Dep. 177; Phillips Dep. 97-99; Richardson Aff. ¶¶ 13-14 (detailing how some pedestrians in the parking lot hid "behind the building" when Lee's car approached); Deloatch Aff. [D.E.64-3] ¶¶ 3-11; Dorrell Brown Aff. [D.E. 64-4] ¶¶ 2-7; Thomas Brown Aff. [D.E. 64-5] ¶¶ 2, 5. One bullet broke Lee's driver's side window and hit Lee in the forearm, shattering his ulna. Lee Dep. 183, 195. The other bullet lodged in the driver's side car door. Am. Compl. ¶ 42; Ans. to Am. Compl. ¶ 42; see Lee Dep. 181-83. "[F]rom start to finish," the whole incident occurred in "less than five minutes." Phillips Dep. 40.

Notwithstanding the gun shots, Lee kept driving. See Lee Dep. 183-84. Lee did not realize he had been shot. Id. 184-85. A few minutes later, two other law enforcement officers, not Sergeant Phillips or Officer Twine, activated their blue lights and stopped Lee's car. Id. 183-85.

After the police stopped Lee's car, the police called an ambulance. See id. 185-86. Lee was hospitalized at Pitt Memorial Hospital in Greenville, North Carolina. Id. 194. The State Bureau of

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Investigation examined Sergeant Phillips's use of force against Lee, but the State declined to charge Sergeant Phillips criminally. See id. 196-99; Reed Dep. 11-13. After the State declined to charge Sergeant Phillips criminally, the Town of Seaboard declined to initiate administrative proceedings against either Officer Twine or Sergeant Phillips. Reed Dep. 11-13, 27, 57. Sergeant Phillips later resigned from the Town of Seaboard Police Department. Id. 16.

II.

In considering a motion for summary judgment, the court views the evidence in the light most favorable to the non-movant and applies well-established principles under Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 56; Scott v. Harris, 550 U.S. 372, 378 (2007); Celotex Corp. v. Catrett, 477 U.S. 317, 325-26 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-55 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Summary judgment is appropriate "if 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); see Anderson, 477 U.S. at 247-48.

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