Thompson v. Farmer

• Decision Date: 28 August 1996
• Docket Number: No. 3:94CV205-P.,3:94CV205-P.
• Court: U.S. District Court — Western District of North Carolina
• Parties: Pamela THOMPSON, Administratrix of the Estate of Windy Gail Thompson, deceased, and Next Friend and guardian ad litem for Delvicio Rashad Thompson and Whitney Sharee Thompson, the minor children of Windy Gail Thompson, Plaintiff, v. Mark FARMER, Charlotte Police Officer, and City of Charlotte, Defendants.

945 F.Supp. 109

Pamela THOMPSON, Administratrix of the Estate of Windy Gail Thompson, deceased, and Next Friend and guardian ad litem for Delvicio Rashad Thompson and Whitney Sharee Thompson, the minor children of Windy Gail Thompson, Plaintiff, v. Mark FARMER, Charlotte Police Officer, and City of Charlotte, Defendants.

No. 3:94CV205-P.

United States District Court, W.D. North Carolina, Charlotte Division.

August 28, 1996.

James E. Ferguson, Ferguson, Stein, Wallas, Gresham & Sumter, P.A., Charlotte, NC, for Pamela Thompson.

G. Michael Barnhill, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, Stephanie H. Webster, Charlotte, NC, for Mark Farmer and City of Charlotte, NC.

ORDER

ROBERT D. POTTER, Senior District Judge.

THIS MATTER is before the Court on the Motion of the Plaintiff to certify the Defendant's interlocutory appeal as frivolous and set this matter for trial (document # 61). For the reasons stated herein, that Motion will be denied.

I. BACKGROUND

On December 29, 1993, Mark Farmer, an officer of the Charlotte Police Department, tried to make a routine traffic stop of a vehicle driven by Windy Gail Thompson. Thompson attempted to elude Farmer, and he gave chase. The high-speed chase terminated when Thompson's car collided with a telephone pole and was badly damaged. A confrontation between Farmer and Thompson followed, and that incident ended when Thompson tried to drive away from the scene of her accident and Farmer fired on Thompson killing her instantly. Pamela Thompson sued Farmer and the City of Charlotte as administratrix of her sister's estate and next friend and guardian ad litem of her sister's children.¹

On May 22, 1996, this Court denied Farmer's motion for summary judgment (document # 54). Several of the Court's holdings are relevant to the interlocutory appeal filed by Farmer and Thompson's request that this Court certify that Farmer's appeal is frivolous. First, the Court held that there were genuine issues of material fact that precluded the Court from granting summary judgment on Farmer's claim of qualified immunity. More specifically, the Court held that when Thompson was given the benefit of all reasonable inferences the Court could not determine as a matter of law that Farmer was inside the vehicle and being dragged by the car when he fired on Thompson. In addition, the Court stated that Farmer would not be entitled to summary judgment as a matter of law even if one assumed he was inside the vehicle when it began moving because reasonable persons might differ over whether Farmer's use of deadly force was reasonable under the circumstances.

In its Order the Court also agreed with Farmer that the state-law privilege to use deadly force set forth in N.C.G.S. § 15A-401(d) governed his use of deadly force and mirrored the objective reasonableness requirement imposed by the United States Constitution. Thus, the Court concluded that Farmer was not entitled to summary judgment as to Thompson's wrongful death claim on the grounds that his use of deadly force was privileged under N.C.G.S. § 15A-401(d) given the genuine disputes of material fact noted above. Later, Farmer filed a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e). In that motion Farmer argued, in essence, that even if his use of deadly force was not authorized by N.C.G.S. § 15A-401(d) he still was entitled to summary judgment based upon the common-law doctrine of public officer immunity. The Court rejected that argument for the reasons given in its order denying the Rule 59 motion (document # 63). Basically, the Court held that N.C.G.S. § 15A-401(d) abrogated any public officer immunity for the use of deadly force by creating a state-law privilege for the use of deadly force but specifically providing that nothing in the statute justified willful, malicious or criminally negligent conduct or excused or justified the use of unreasonable or excessive force. The Court concluded that given the genuine disputes of material fact noted earlier a reasonable person might conclude that Farmer's actions were willful, malicious, criminally negligent or constituted the use of unreasonable and excessive force such that he would not be entitled to the privilege created by N.C.G.S. § 15A-401(d).

The final aspect of the Court's prior dispositions relevant to this motion concerns the Court's decision to abstain from deciding an issue of state law. More specifically, in its Order denying Farmer's motion for summary judgment the Court held that Thompson's claim that the City of Charlotte's selective waiver of sovereign immunity violated Art. I § 19 of the North Carolina Constitution involved an important and unclear area of state law such that the Court would decline to exercise jurisdiction over that claim pursuant to 28 U.S.C. § 1367(c)(1). As a result, the Court remanded that state-law claim to the court from which this action was removed. See 28 U.S.C. § 1441(c).

Farmer appealed this Court's orders on several grounds that implicate the holdings recited above. First, he claims that this Court erred when it held that Farmer was not entitled to qualified immunity as to Thompson's excessive force claim as a matter of law. Here, Farmer appears to argue that there is no genuine issue of fact concerning whether he was inside the vehicle and being dragged along the road when he shot Thompson. He also challenges this Court's statement that even if he were in the vehicle a jury would still be entitled to determine whether his use of deadly force was reasonable under the circumstances. Second, Farmer claims that this Court erred when it held that Farmer was not entitled to public officer immunity as to Thompson's wrongful death claim against Farmer individually as a matter of law under the laws of North Carolina. Third, Farmer claims that this Court abused its discretion when it held that Thompson's claim that the City's selective waiver of sovereign immunity violated the North Carolina Constitution raised an important issue of unclear state law that should be resolved by the courts of North Carolina such that abstention was appropriate, and therefore, the Court should not exercise supplemental jurisdiction over that state-law claim.

Thompson has moved to certify Farmer's appeal as frivolous and urged this Court to set the matter for trial. According to Thompson, Farmer has no right to an interlocutory appeal on his qualified immunity claims because the immunity inquiry turns on issues of fact, not law, and interlocutory appeal in such cases is barred by the Supreme Court's decision in Johnson v. Jones, ___ U.S. ____, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). She also argues that this Court's decision to abstain and not exercise its supplemental jurisdiction is not a final decision that is subject to an interlocutory appeal pursuant to 28 U.S.C. § 1291 under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

II. DISPOSITION

At the outset it is necessary to consider whether the Fourth Circuit would approve of the procedure Thompson seeks to employ in this case. Relying on Apostol v. Gallion, 870 F.2d 1335 (7th Cir.1989), Thompson has urged this Court to certify Farmer's appeal as frivolous and proceed to trial. Farmer argues that the Fourth Circuit has not adopted Apostol such that this Court has no authority to certify the appeal as frivolous.

This Court has reviewed the Seventh Circuit's decision in Apostol and agrees with Thompson that this Court has power to certify an appeal as frivolous in an appropriate case. The Court believes that the reasoning of Apostol is well-rooted in the general principles governing appellate jurisdiction such that the Fourth Circuit would adopt its eminently sensible holding. Indeed, it seems the Supreme Court has approved of this procedure. See Behrens v. Pelletier, ___ U.S. ___, ___, 116 S.Ct. 834, 841, 133 L.Ed.2d 773 (1996) (citing four circuits that have adopted this procedure). Of course it is also true, as Farmer notes, that the Court of Appeals will also satisfy itself that the appeal has merit sufficient to confer appellate jurisdiction. But there is no necessary conflict between appellate review and use of the procedure outlined in Apostol — they are complementary procedures. This is even more certain when one considers that Apostol also recognizes that the Court of Appeals may stay an action in the district court while it reviews the district court's determination that an appeal is frivolous. See Apostol, 870 F.2d at 1339.²

Thompson has argued that Farmer's appeal of this Court's denial of qualified immunity is not the proper subject of an interlocutory appeal. This Court agrees. As noted earlier, when the Court denied Farmer's motion for summary judgment on the basis of his qualified immunity it did so, in part, on the grounds that material issues of fact remained concerning whether Farmer was in the car and being dragged along the road such that he could reasonably believe that he was actually in danger of serious bodily harm. This is precisely the sort of evidentiary determination that precludes an interlocutory appeal from a denial of qualified immunity under the rule stated in Johnson. See Johnson, at ___ _ ___, 115 S.Ct. at 2153-54; see also Buonocore v. Harris, 65 F.3d 347, 359-60 (4th Cir.1995). Therefore, the jury will have to determine these disputed facts in order to determine whether Farmer is entitled to qualified immunity.

Farmer does not really address the rule in Johnson, supra, as it applies in this case. Instead he cites Pittman v. Nelms, 87 F.3d 116 (4th Cir.1996) and argues that he is entitled to summary judgment on his immunity defense as a matter of law. The Court does not believe that Pittman entitles Farmer to summary judgment in this case because the Court believes that the immunity inquiry turns, in part, on whether he was actually in the car and being dragged alongside it when he fired on Thompson. For it is...