Little v. Smith

Decision Date17 August 2000
Docket NumberNo. 3:99CV37-H.,3:99CV37-H.
Citation114 F.Supp.2d 437
CourtU.S. District Court — Western District of North Carolina
PartiesJanis LITTLE, Individually and as Administratrix of the Estate of Malachiah McQueen, Deceased, Plaintiff, v. Mike SMITH, David Morton, and Tony Martino, each individually and in his official capacity as a Deputy Sheriff; James N. Sellers, individually and in his official capacity as Sheriff of Anson County; Fidelity and Deposit Company of Maryland, as surety of the Sheriff's bond; and Anson County, Defendants.

James E. Ferguson, Ferguson, Stein, Wallas, Gresham & Sumter, P.A., Charlotte, NC, for Janis Little, Individually and as administratrix of the Estate of Malachian McQueen, deceased, plaintiff.

Tyrus V. Dahl, Jr., Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, for Mike Smith, David Morton, Tony Martino, James N. Sellers, Fidelity and Deposit Company of Maryland, Anson County, defendants


HORN, Chief United States Magistrate Judge.

THIS MATTER is before the Court on the "Defendants' Motion for Summary Judgment" (document # 21) and "Brief in Support ..."(document # 22), both filed July 17, 2000; and "Plaintiff's Brief in Opposition ..." (document # 24), filed August 7, 2000. On August 16, 2000, the Defendant filed a "Notice of No Reply Brief" (document # 26).

The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and these motions are now ripe for the Court's determination.

Having carefully considered the parties' arguments, the record, and the applicable authority, the undersigned will grant the Defendants' motion and dismiss the Complaint.


At all times relevant to this action, Defendant James Sellers ("Sheriff Sellers") was the duly elected Sheriff of Anson County, North Carolina; Defendants Mike Smith, David Morton, and Tony Martino ("the deputies") served as Deputies in the Anson County Sheriff's Office; and Defendant Fidelity and Deposit Company of Maryland ("Fidelity") was the surety on Sheriff Sellers' bond.1

On the afternoon of January 3, 1997, the Plaintiff, Ms. Janis Little ("Ms.Little"), and her brother, Mr. Malachiah McQueen ("decedent" or "Mr. McQueen") had an argument at the home they shared. During this episode, Mr. McQueen shook a stick at Ms. Little and spoke to her in a threatening manner. Thereafter, Ms. Little, her son Terence Little, and Ms. Little's boyfriend, James Deese, went to the Magistrate's office at the Anson County Courthouse in Wadesboro, North Carolina. Ms. Little explained what had happened and indicated that her brother had some mental problems. The Magistrate contacted a local mental health official who agreed to evaluate Mr. McQueen if he was "acting bizarre when the sheriff's deputies have him." Ms. Little then swore out a warrant for her brother's arrest for communicating threats based upon the earlier incident with the stick.

The warrant was delivered to the Anson County Sheriff's Office for service. Ms. Little spoke with two of the defendants, Captain Mike Smith and Sergeant David Morton, and explained to them that her brother was a paranoid schizophrenic; that their mother had been diagnosed with the same mental illness; and that Mr McQueen did not have a weapon. Because he was in uniform, it was planned that Sgt. Morton would actually serve the warrant, but Capt. Smith decided to accompany the sergeant in case there was a need for backup. The two deputies followed Ms. Little in separate patrol vehicles to the residence. The deputies pulled into the driveway while Ms. Little, her son, and Mr. Deese parked along the roadway. Ms. Little and Mr. Deese remained in the car throughout the incident, but Terence Little got out during the officers' confrontation with Mr. McQueen inside the house.

The deputies knocked on the door and were invited in by Mr. McQueen. They explained that they had a warrant for his arrest and that he would have to go with them. Mr. McQueen refused, stating, "[i]f I go with you in that car, police car out there, we are going to go up in the sky." Subsequently, there was a violent physical altercation between Mr. McQueen and the deputies in which Sgt. Morton sustained head injuries and the deputies were forced to retreat into the yard. Capt. Smith immediately called for backup assistance and they took up positions near their patrol cars.

Ms. Little alleges that Sgt. Morton then walked over to Ms. Little's car with a gun in his hand and told her that he might have to shoot Mr. McQueen; that she restated her contention that her brother was mentally ill and unarmed; that she asked Sgt. Morton if there was another approach they might take; and that Sgt Morton responded that just because he was wearing a uniform did not mean he was "Superman."

Officers from a number of different law enforcement agencies, including the North Carolina Highway Patrol, responded to Capt. Smith's call for backup. As the additional officers arrived, Capt. Smith got on the public address system of his patrol car and announced to Mr. McQueen that he had five minutes to come out. Officers fanned out around the house while North Carolina Highway Patrolman Landric Reid retrieved his rifle and Deputy Tony Martino secured his shotgun, from their respective trunks. Capt. Smith again announced over the PA system that Mr. McQueen had five minutes to come out.

It was becoming dark and there was little light, except from the light in the carport. As the officers watched, Mr. McQueen came out through a side door, crossed the carport area, and began walking up a path beside and behind the house. Capt. Smith, Sgt. Morton, Deputy Martino, and Trooper Reid followed while issuing lawful commands for the suspect to stop and show his hands. As they pursued Mr. McQueen, Sgt. Morton used his flashlight in on-off bursts to illuminate Mr. McQueen but none of the officers were able to see his hands. They continued to order Mr. McQueen to stop and put his hands in view, but he simply ignored them and continued on along the path toward the woods. Sgt. Morton attempted to disable the suspect through the use of OC pepper spray, but it appeared to have no effect on Mr. McQueen.

As Mr. McQueen continued toward the woods behind the house, he suddenly wheeled about, extended his right arm toward the officers in a threatening manner, appearing to have a gun in his right hand. Sgt. Morton saw a black object in Mr. McQueen's hands and pointed at him in "a two-handed gun position," which Trooper Reid believed to be a "shooting stance." Capt. Smith fired two shots without any apparent effect as the officers ducked or dived for cover. Trooper Reid later testified that at that point, although he did not fire, he would have shot the suspect except that a clear shot was prevented by the presence of Sgt. Morton who was also coming back to his feet. Trooper Reid also testified that, as he heard the two shots being fired, Mr. McQueen's right hand appeared to bounce upward as if in response to the recoil of a handgun. The officers were convinced that Mr. McQueen was armed with a handgun at that time. Mr. McQueen turned and continued to walk up the path for a short distance despite additional commands that he stop and show his hands. Suddenly, Mr. McQueen repeated the move in which he turned abruptly toward the officers with his arm extended and a cylinder-like object protruding from his hand. At that point, Capt. Smith, Sgt. Morton and Deputy Martino all fired. Trooper Reid did not fire because he had lost sight of the suspect.

Mr. McQueen fell forward on his stomach with both of his hands covered by his body. The officers, not knowing the extent of any injuries to Mr. McQueen, again ordered him to show his hands, but then pulled his hands from under his body. In his right hand Mr. McQueen held a small dumbbell and in his left, a pipe and a glass vile. The ambulance, which had been "staged" nearby following the original emergency calls for backup, was summoned and arrived within minutes. Mr. McQueen subsequently died as a result of the gunshot wounds. The single buckshot round from Deputy Martino's shotgun proved to be the fatal shot.

On December 30, 1998, the Plaintiff, after qualifying as personal representative of the decedent's estate, filed a complaint in Anson County Superior Court alleging a claim under 42 U.S.C. § 1983 for excessive force, a state constitutional claim, and state law claims for wrongful death and intentional infliction of emotional distress. On February 1, 2000, the Defendants removed the state action to federal court alleging federal question jurisdiction, which appears proper and has not been challenged by the Plaintiff.

During his deposition, the Plaintiff's expert witness, Dr. George Kirkham of Lake Worth, Florida, a well-known criminologist, described his understanding of the facts of the case in some detail, consistent with the facts as stated above. Although he opined that the deputies made numerous mistakes during events leading up to the shooting, on cross-examination, Dr. Kirkham testified as follows:

Q. You have outlined in great detail a lot of events leading up to Mr. McQueen spinning and pointing at the officers with what appeared to be something in his hand, which the officers perceived to be a weapon. But at the moment that the officers perceived a weapon in the hand of Mr. McQueen the first time, was there anything unreasonable, in your expert opinion, about their response?

A. You mean specifically the discharge of firearms?

Q. Yes, sir.

A. Not in that circumstance.

Q. Then in the second circumstance where Mr. McQueen turns suddenly and the officers perceive that there was a weapon, do you see anything unreasonable about their response?

A. Weapon being defined in their testimony as what they believe is a gun?

Q. Yes.

A. No....

Q. All right, I want to discuss those two episodes one at a time, if we could,...

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