Shaw v. Stroud

• Decision Date: 06 January 1994
• Docket Number: 92-2252 and 92-2253,92-2109,Nos. 92-2029,s. 92-2029
• Citation: 13 F.3d 791
• Parties: Deborah SHAW, Administratrix of the Estate of Sidney Bowen, deceased; Nancy Bowen, Individually, and as guardian ad litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, the minor children of Sidney Bowen, Plaintiffs-Appellees, v. C.I. STROUD, Individually, Defendant-Appellant, and Alfred E. Morris, J.M. Smith; J.A. McVicker; J.H. Parks, in their individual capacities, Defendants. Deborah SHAW, Administratrix of the Estate of Sidney Bowen, deceased; Nancy Bowen, Individually, and as guardian ad litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, the minor children of Sidney Bowen, Plaintiffs-Appellants, v. Alfred E. MORRIS; C.I. Stroud, J.M. Smith, in their individual capacities, Defendants-Appellees, and J.A. McVicker; J.H. Parks, in their individual capacities, Defendants. Deborah SHAW, Administratrix of the Estate of Sidney Bowen, deceased; Nancy Bowen, Individually, and as guardian ad litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, the minor children of Sidney Bowen, Plaintiffs-Appellants, v. C.I. STROUD; Alfred E. Morris; J.M. Smith, in their individual capacities, Defendants-Appellees. Deborah SHAW, Administratrix of the Estate of Sidney Bowen, deceased; Nancy Bowen, Individually, and as guardian ad litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, the minor children of Sidney Bowen, Plaintiffs-Appellees, v. C.I. STROUD, Individually, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 791

13 F.3d 791

Deborah SHAW, Administratrix of the Estate of Sidney Bowen,

deceased; Nancy Bowen, Individually, and as guardian ad

litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, theminor children of Sidney Bowen, Plaintiffs-Appellees, v.C.I. STROUD, Individually, Defendant-Appellant, andAlfred E. Morris, J.M. Smith; J.A. McVicker; J.H. Parks,

in their individual capacities, Defendants.

Deborah SHAW, Administratrix of the Estate of Sidney Bowen,

deceased; Nancy Bowen, Individually, and as guardian ad

litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, theminor children of Sidney Bowen, Plaintiffs-Appellants, v.Alfred E. MORRIS; C.I. Stroud, J.M. Smith, in their

individual capacities, Defendants-Appellees,

and

J.A. McVicker; J.H. Parks, in their individual capacities,

Defendants.

Deborah SHAW, Administratrix of the Estate of Sidney Bowen,

deceased; Nancy Bowen, Individually, and as guardian ad

litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, theminor children of Sidney Bowen, Plaintiffs-Appellants, v.C.I. STROUD; Alfred E. Morris; J.M. Smith, in their

individual capacities, Defendants-Appellees.

Deborah SHAW, Administratrix of the Estate of Sidney Bowen,

deceased; Nancy Bowen, Individually, and as guardian ad

litem for Kimberly Yvonne Bowen and Lee Frederick Bowen, theminor children of Sidney Bowen, Plaintiffs-Appellees, v.C.I. STROUD, Individually, Defendant-Appellant.

Nos. 92-2029, 92-2109, 92-2252 and 92-2253.

United States Court of Appeals Fourth Circuit.

Argued Sept. 29, 1993.

Decided Jan. 6, 1994.

Rudolph A. Ashton, III, Sumrell, Sugg, Carmichael & Ashton, P.A., New Bern, NC, Samuel Thomas Currin, Raleigh, NC, Linda Anne Fox, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, NC, argued (Denise D. Daggett, Raleigh, NC, Michael F. Easley, Atty. Gen. of North Carolina, Isaac T. Avery, III, Sp. Deputy Atty. Gen., North Carolina Dept. of Justice, Raleigh, NC, on brief), for defendant-appellant.

James Elliot Ferguson, II, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, argued (Anita S. Hodgkiss, on brief), for plaintiffs-appellees.

Before HALL, PHILLIPS, and HAMILTON, Circuit Judges.

OPINION

HAMILTON, Circuit Judge:

These consolidated appeals and cross-appeals arise out of an action under 42 U.S.C. Sec. 1983 and state law against a North Carolina state trooper and several of his supervisors by the wife and minor children of a citizen the trooper shot and killed during an arrest.

I

On February 27, 1990, Officer Alfred Morris(Morris), a seven-year veteran of the North Carolina Highway Patrol, stopped Sidney Bowen(Bowen), a 42-year-old black man, as he pulled into his driveway, on suspicion of driving while impaired.At Morris' request, Bowen displayed his driver's license and seated himself in the patrol car.When Morris reached for his ticket book, Bowen ran from the car.Morris, flashlight in hand, pursued him.

Meanwhile, Nancy, Bowen's wife, was in her bedroom, and Kimberly, their fifteen-year-old daughter, was in the bathroom.At some point during the chase, both Kimberly and Nancy heard Bowen say, "Okay, Okay, I'll go anywhere you want me to go."(J.A. 117).Morris claims that, when Bowen fell to the ground, Morris caught up with him and took control of him with either an arm-bar technique or by holding him around his collar.Both Kimberly and Nancy heard Bowen yell, "Nancy, I'm going to jail."Id.Kimberly and Nancy then ran to the front porch where they saw Bowen and Morris near the patrol car.Bowen was standing with his hands behind his back and Morris was standing behind him.Bowen called to Kimberly, "Kimberly, Kimberly, go get help, tell them the law is trying to kill me in my own front yard."Id.Kimberly ran through the house and out the back door to a nearby uncle's house.

Nancy witnessed from the porch the following entire violent encounter.Morris called the Elizabethtown Office of the Highway Patrol and asked for backup at 9:41:46 p.m.Just as he dropped the microphone, Nancy saw Bowen jerk his hand away from Morris.At this point, Morris became the aggressor and began to hit Bowen with the flashlight about the head and shoulders until he fell to the ground.Nancy claims that Bowen got up and struggled with Morris for control of the flashlight.At that point, she asserts, Morris let go of the flashlight, pulled out his pistol, and fired at Bowen.She stated that Morris was either crouched down or kneeling as he shot Bowen.He fired at least twice; then, Bowen swung at Morris with either his fist or the flashlight.Morris stood up and began backing away from the rear of his car toward the highway as Bowen continued to swing at him.Morris then resumed firing his pistol until Bowen fell to the ground.Morris had fired six bullets, five of which struck Bowen.The injuries were fatal.Morris called for assistance at 9:43:19 p.m.--93 seconds following his initial call prior to the physical confrontation.¹

Although Morris sustained a two-centimeter laceration on the lower left back of his head, his medical records indicate that he never lost consciousness.The autopsy of Bowen revealed that he had sustained many blunt force injuries to the head and neck.He had extensive bruising on his neck, indicating that pressure had been applied to the front of his neck by some object.He had a blood alcohol content of .11 Sergeant C.I. Stroud(Stroud)² was Morris' supervisor from the time Morris joined the patrol in 1983 until late November 1988.Stroud was transferred fifteen months before the Bowen shooting.Nevertheless, during his tenure as Morris' supervisor, Stroud received reports about Morris' use of excessive force.For example, in May 1987, Morris arrested, and allegedly beat, Harvey Paul Walker.Shortly before his trial, Walker saw Stroud at the Waffle House in Whiteville.When he told Stroud that he wanted to talk with him about the way Morris had treated him, Stroud responded, "Oh, what happened, he roughed you up?"(J.A. 354).He suggested that Walker call him.Instead, Walker gave Stroud his phone number and asked him to call.Stroud, however, never called Walker.Thereafter, Walker called the patrol station and left several messages for Stroud; Stroud never returned the calls.Walker did not file a formal complaint.³

Again in May 1987, a line sergeant informed Stroud that an arrestee, Thomas Menser, had complained that Morris had called him a "nigger."Stroud asserts that he directed a line sergeant to counsel Morris about this incident.Although Menser also filled out a report of assault, an investigation cleared Morris of the charges.

During an arrest in July 1987, Morris allegedly assaulted Gary Ward.Although Ward never filed a formal complaint against Morris, he told Stroud that he"had been from Maine to Miami and that [he] had never seen anybody with a set of troopers with the conduct and attitude that his officers had."(J.A. 390).Ward claimed that Stroud just "sort of smiled at him."Id.⁴

Responding to allegations of rudeness, a line sergeant counseled Morris about being insulting to the public.These incidents, occurring in September and December of 1987 and in February and May of 1988, were brought to the attention of Stroud.

Morris allegedly assaulted Jessie James during an arrest in March 1988.James testified at his deposition that he saw Stroud when Morris took him to the jail.James claims that Stroud commented to Morris, "You got another one."(J.A. 989).Stroud and Morris allegedly laughed.James asserts that Stroud refused to listen to him when he tried to tell Stroud that Morris had beaten him.James never filed a formal complaint.⁵

In July 1988, Rhonda Cothron called the State Highway Patrol Internal Affairs Department in Raleigh to report that Morris and Trooper C.C. Albritton had assaulted her son.She informed the officer who received the complaint that John Cothron had two five-inch cuts on his head, was beaten in the face, and was struck in the ribs by the troopers.The investigating troopers took Cothron to the hospital.Although Albritton admitted hitting Cothron on the head with his flashlight, Morris declared that Cothron received his injuries when he hit his head on the door molding while trying to avoid being handcuffed.Stroud instructed a subordinate to conduct an investigation in which Morris was completely exonerated.

Morris instituted a disproportionately high number of assault charges against arrestees.From September 1987 to December 1988, during Stroud's tenure, six of the nine charges of assault on a law enforcement officer in Columbus County, North Carolina were brought by Morris.There were forty-six charges for resisting arrest, twenty of which were initiated by Morris.⁶From 1984 to 1990, thirteen people arrested by Morris alleged that he used excessive force.

Sergeant J.M. Smith(Smith) transferred to the B-V Troop and replaced Stroud as First Sergeant in December 1988.When Smith moved to B-V, he knew nothing about Morris.Stroud did not inform him that he had heard any complaints about Morris' use of excessive force.

On May 3, 1989, Judge William C. Gore, then the Chief District Court Judge in Columbus County, spoke with Line Sergeant J.A. White (White) about concerns over Morris' conduct.Judge Gore related that, over the past eighteen months, he had seen case after case involving the use of excessive force by Morris on defendants.He also stated that most of the incidents appeared to "involve blacks or people of lower means."(J.A. 447).Judge Gore remarked that he was afraid that it was "only a matter of time before Trooper Morris seriously injures a person."Id.Judge Gore failed to identify any specific incidents of misconduct.Although Judge Gore told White that he did not wish to file a formal complaint, White filled out a "Record of Complaint and/or Service Request" form regarding his conversation with Judge Gore and left it on...