Lee v. Town of Seaboard

• Citation: 863 F.3d 323
• Decision Date: 14 July 2017
• Docket Number: No. 16-1447,16-1447
• Parties: Brian C. LEE, Sr., Plaintiff–Appellant, v. TOWN OF SEABOARD, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

863 F.3d 323

Brian C. LEE, Sr., Plaintiff–Appellant,

v.TOWN OF SEABOARD, Defendant–Appellee.

No. 16-1447

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2017

Decided: July 14, 2017

ARGUED: Eric Laurence Doggett, DOGGETT LAW OFFICES, Raleigh, North Carolina, for Appellant. Dan M. Hartzog, Jr., CRANFILL, SUMNER & HARTZOG, LLP, Raleigh, North Carolina, for Appellee. ON BRIEF: Dan M. Hartzog, CRANFILL, SUMNER & HARTZOG, LLP, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, KING, and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge King joined.

WYNN, Circuit Judge:

Early on the morning of May 15, 2010, Sergeant Howard Phillips ("Sergeant Phillips"), a police officer employed by Defendant Town of Seaboard, North Carolina ("Seaboard"), shot and wounded

Plaintiff Brian C. Lee, Sr. ("Lee") as Lee was driving to escape a mob that had attacked him as he left a party at an Elks Lodge in Seaboard. Lee filed a diversity suit in federal district court against Seaboard, asserting a variety of state-law tort claims relating to the shooting. Seaboard moved for summary judgment, arguing that Sergeant Phillips's use of deadly force was justified under N.C. Gen. Stat. § 15A–401(d)(2), thus precluding Lee's state-law tort claims. The district court granted the motion, holding that the undisputed evidence established that Sergeant Phillips reasonably believed deadly force was necessary because Lee posed an imminent threat to Sergeant Phillips and others. But upon viewing the facts in the light most favorable to Lee, as we must, see Bauer v. Lynch , 812 F.3d 340, 347 (4th Cir. 2016), the record reveals several genuine disputes of material fact bearing on the reasonableness of Sergeant Phillips's decision to use deadly force against Lee. Accordingly, we conclude that the district court reversibly erred in awarding summary judgment in favor of Seaboard.

I.

A.

On the evening of May 14, 2010, Lee, his brother, and his cousin drove from Norfolk, Virginia, to attend a party at an Elks Lodge in Seaboard, a town of 500 people. Lee was invited to the party by another cousin who was serving as deejay at the party. Between 9:30 PM and 10:00 PM, Lee and his companions arrived at the Elks Lodge to attend the party, which included between fifty and seventy-five partygoers. Off-duty Seaboard Police Officer David Twine ("Officer Twine") provided security for the party, and on-duty Seaboard Police Sergeant Phillips monitored the party by repeatedly visiting the Elks Lodge throughout the night and patrolling the area around the lodge.

At 2:15 A.M., with between twenty and thirty partygoers remaining, Sergeant Phillips and Officer Twine announced that the party was over. Because there was, as stated by Lee, "tension in the air with the Seaboard crowd," J.A. 349, Sergeant Phillips and Officer Twine escorted Lee and his companions to their car through a crowd of fifteen to twenty local men who "rush[ed] up on" the three men, J.A. 351, began "saying stuff" to them, J.A. 350, and threw a drink at Lee's face.

When the three men reached Lee's car, Sergeant Phillips told them to leave. After Lee retrieved a towel from his car's trunk to dry himself, a member of the crowd punched Lee in the face as Lee tried to get in the vehicle. The evidence viewed in the light most favorable to Lee shows that although at least one of the officers saw Lee punched, neither officer did anything to stop the assailant or the crowd from pursuing Lee.

After the three got in the car, the crowd began kicking and jumping on the car, "smash[ing] in" the car's windshield, and trying to open the car's door. J.A. 353. Again, the evidence viewed in the light most favorable to Lee shows that neither Sergeant Phillips nor Officer Twine did anything to stop the crowd. Instead, Sergeant Phillips again ordered Lee to leave.

The evidence viewed in the light most favorable to Lee shows that the three men feared for their lives and tried to "[g]et the hell out of [t]here," driving out of the parking lot with five or six of the assailants on top of the car. J.A. 364. With his visibility impaired because the car's "windshield was smashed in[ ] and the crowd was still hanging on the car," Lee was able to drive out of the parking lot with the mob running behind him. J.A. 359. Being unfamiliar with his whereabouts, Lee drove down what turned out to be a dead-end street. Lee then turned the vehicle around and began driving in the opposite direction—toward the Elks Lodge—seeking to get out of the area.

Meanwhile, and unbeknownst to Lee, Sergeant Phillips had pursued Lee's vehicle on foot, intending to stop the car and place Lee under arrest because he believed Lee had hit a partygoer as he drove out of the parking lot. The evidence viewed in the light most favorable to Lee, however, demonstrates that Lee did not hit anyone as he left the parking lot. As Lee drove from the dead-end back towards the Elks Lodge, Sergeant Phillips drew his weapon and allegedly shouted at Lee to "stop the car." J.A. 159. The evidence viewed in the light most favorable to Lee establishes that neither Lee nor the other occupants of the car heard Sergeant Phillips's command, and Lee did not stop.

In response, Sergeant Phillips backed up the street, moved to the side of the road opposite the Elks Lodge, and took a "shooter's stance." J.A. 212. As Lee accelerated to get away from the mob chasing his car, reaching speeds of fifteen to twenty miles per hour, Sergeant Phillips, while facing the side of Lee's car, fired two shots into the side of Lee's vehicle. One of the bullets penetrated the driver's side window and struck Lee in his left arm, fracturing his ulna, while the other bullet pierced the driver's side door. Not realizing he had been shot, Lee continued driving for between three and five minutes before two other law enforcement officers pulled him over some distance from the scene of the shooting. Lee was later hospitalized in Greenville, North Carolina.

No charges were brought against Lee or anyone else stemming from these incidents outside the Elks Lodge. And, after interviewing Lee about the shooting, the State Bureau of Investigation declined to charge Sergeant Phillips criminally, and Seaboard did not investigate the incident or initiate administrative proceedings. Sergeant Phillips resigned later that year.

B.

On March 30, 2013, Lee filed a diversity action against Seaboard in the United States District Court for the Eastern District of North Carolina. Lee's complaint alleged various state-law tort claims, including negligent use of excessive force, intentional and negligent assault and battery, and negligent supervision.¹ On July 17, 2013, Lee filed an amended complaint in the district court. Seaboard filed an answer to the amended complaint on August 5, 2013, asserting governmental immunity as an affirmative defense.

On June 26, 2015, following discovery, Seaboard moved for summary judgment, arguing that, based on the undisputed facts, Sergeant Phillips's use of force was justified under state law. That same day, Lee filed a cross-motion for partial summary judgment as to Seaboard's waiver of governmental immunity and attached to his motion a certified copy of Seaboard's insurance policy in place at the time Sergeant Phillips shot Lee. In response to Lee's motion, Seaboard withdrew its governmental immunity defense and instead asserted public official immunity as an alternative defense.

On March 25, 2016, the district court granted Seaboard's summary judgment motion and denied, without explanation, Lee's cross-motion for partial summary judgment.² Lee v. Town of Seaboard , No. 2:13-CV-20-D, 2016 WL 1249148, at *6 (E.D.N.C. Mar. 25, 2016). In granting summary judgment to Seaboard, the district court found that Lee's state-law tort claims were foreclosed because Sergeant Phillips's conduct was justified under N.C. Gen. Stat. § 15A–401(d)(2). Lee , 2016 WL 1249148, at *4–6. And because the district court found that Sergeant Phillips's conduct was privileged under state law, it did not address Seaboard's other arguments. Id. at *6. Accordingly, the district court entered judgment in favor of Seaboard, and Lee timely appealed.

II.

We review a district court's grant of summary judgment de novo. Higgins v. E.I. DuPont de Nemours & Co. , 863 F.2d 1162, 1167 (4th Cir. 1988). "The narrow questions before us on summary judgment are whether any genuine issues of material fact exist for the jury and if not, whether the district court erred in applying the substantive law." Id. at 1166–67 ; see also Fed. R. Civ. P. 56(a) ("The court shall grant summary judgment 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."). In determining whether the grant of summary judgment was appropriate, we must "view the evidence in the light most favorable to the nonmoving party" and refrain from "weigh[ing] the evidence or mak[ing] credibility determinations." Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568–69 (4th Cir. 2015) (internal quotation marks omitted); see also Fed. R. Civ. P. 56 advisory committee's note to 1963 amendment ("Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate."). To survive summary judgment, "there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under this standard, the district court erred in granting summary judgment to Seaboard.

A.

The parties agree that North Carolina law governs. Accordingly, as a court sitting in diversity, our "function ... is to ascertain and apply the law of [North Carolina] as it exists," without creating or expanding the state's public policy. St. Paul Fire &...