{ "id": 12168930, "name": "WILLIAM S. MILLS, Ancillary Administrator of the Estate of AAEON LORENZO DORSEY, Deceased, Plaintiff-Appellant v. DUKE UNIVERSITY, a Not for Profit Corporation, LARRY CARTER, and JEFFREY LIBERTO, Jointly and Severally, Defendants-Appellees", "name_abbreviation": "Mills v. Duke University", "decision_date": "2014-06-17", "docket_number": "No. COA13-1164", "first_page": "380", "last_page": "394", "citations": [ { "type": "official", "cite": "234 N.C. App. 380" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "669 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642288 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "20-21", "parenthetical": "citations omitted" }, { "page": "21" }, { "page": "20" }, { "page": "20-21" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0018-01" ] }, { "cite": "633 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636471 ], "year": 2006, "pin_cites": [ { "page": "694", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0691-01" ] }, { "cite": "630 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635959 ], "year": 2006, "pin_cites": [ { "page": "462", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0460-01" ] }, { "cite": "755 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2014, "opinion_index": 0 }, { "cite": "751 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "677 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "484", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168073 ], "year": 2009, "pin_cites": [ { "page": "567", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0562-01" ] }, { "cite": "194 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4163083 ], "year": 2008, "pin_cites": [ { "page": "177", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0173-01" ] }, { "cite": "179 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234469 ], "year": 2006, "pin_cites": [ { "page": "109", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0104-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-223", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "177 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302862 ], "year": 2006, "pin_cites": [ { "page": "788", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0785-01" ] }, { "cite": "141 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1965, "pin_cites": [ { "page": "245", "parenthetical": "citations omitted" }, { "page": "245" } ], "opinion_index": 0 }, { "cite": "264 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571705 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "155", "parenthetical": "citations omitted" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0149-01" ] }, { "cite": "570 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "256", "parenthetical": "citations omitted" }, { "parenthetical": "citation and quotation marks omitted" }, { "page": "256" }, { "page": "256", "parenthetical": "citations omitted" }, { "page": "256", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250527 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "492", "parenthetical": "citations omitted" }, { "page": "492" }, { "page": "492" }, { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0488-01" ] }, { "cite": "573 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "123", "parenthetical": "citation omitted" }, { "page": "123-24", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511376 ], "year": 2002, "pin_cites": [ { "page": "578-79", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0571-01" ] } ], "analysis": { "cardinality": 1141, "char_count": 32569, "ocr_confidence": 0.724, "pagerank": { "raw": 4.548627546539126e-08, "percentile": 0.2854685736504329 }, "sha256": "59d85a0b188d319e3d3801b5e531753f16c9a86f830c445e732f9cc67e4c1f9f", "simhash": "1:f88a9a2e06099a5e", "word_count": 5489 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge CALABRIA concur." ], "parties": [ "WILLIAM S. MILLS, Ancillary Administrator of the Estate of AAEON LORENZO DORSEY, Deceased, Plaintiff-Appellant v. DUKE UNIVERSITY, a Not for Profit Corporation, LARRY CARTER, and JEFFREY LIBERTO, Jointly and Severally, Defendants-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nAaron Lorenzo Dorsey (\u201cMr. Dorsey\u201d) was shot and killed by a Duke University Police officer at approximately 1:00 a.m. on 13 March 2010, just outside the main entrance to Duke University Hospital in Durham (\u201cthe hospital\u201d). When the shooting occurred, Preston Locklear was being treated for a serious injury in the intensive care unit of the hospital. A number of members of Preston Locklear\u2019s family (\u201cthe Locklear family\u201d) were at the hospital that morning visiting him. The Locklear family members included: Charles Brayboy, Krecia Ann Brayboy, Alena Hull, Christine Locklear, Debbie Locklear, Justin Locklear, Shawn Locklear, Lenora Locklear, and Billie Jo Locklear.\nIn his deposition, Mondrez Pamplin (\u201cMr. Pamplin\u201d), testified that he was a hospital security guard working in the front lobby of the hospital on the night shift between 12 and 13 March 2010. Shortly before 1:00 a.m. on 13 March 2010, a member of the Locklear family approached him to complain about a man panhandling near the entrance of the hospital. Mr. Pamplin went outside and saw Mr. Dorsey. He asked Mr. Dorsey if he was visiting someone in the hospital, and Mr. Dorsey replied that he was not. Mr. Pamplin then suggested to Mr. Dorsey that he leave Duke University property. Mr. Dorsey did not leave, so Mr. Pamplin contacted Duke University Police to report Mr. Dorsey as a suspicious person. Duke University Police officers Larry Carter (\u201cOfficer Carter\u201d) and Jeffrey Liberto (\u201cOfficer Liberto\u201d) (together, \u201cthe officers\u201d) responded, arriving at the entrance of the hospital shortly after 1:00 a.m. Mr. Pamplin asked the officers to \u201ccheck [Mr. Dorsey] out.\u201d\nThe officers approached Mr. Dorsey and asked for identification. Mr. Dorsey turned away from the officers and started walking away. At this point, according to the officers\u2019 testimony, Officer Liberto grabbed Mr. Dorsey and a struggle ensued. Officer Carter went to assist Officer Liberto, and Mr. Dorsey grabbed Officer Carter\u2019s holstered weapon and attempted to remove it from Officer Carter\u2019s holster. Officer Carter pressed down on Mr. Dorsey\u2019s hand or hands, attempting to prevent Mr. Dorsey from obtaining the weapon. Officer Carter was yelling: \u201cHe\u2019s got my gun. He\u2019s getting my gun.\u201d Officer Liberto let go of Mr. Dorsey and first began hitting Mr. Dorsey with his fists and then with his police baton. Officer Carter ended up struggling with Mr. Dorsey on the ground. Officer Liberto repeatedly asked if Mr. Dorsey had Officer Carter\u2019s gun, and both officers commanded Mr. Dorsey to let go of the weapon.\nSome members of the Locklear family testified by deposition that they saw Mr. Dorsey grab Officer Carter\u2019s weapon and struggle with Officer Carter in an attempt to take that weapon. Other members of the Locklear family testified they could not see Mr. Dorsey\u2019s hands and, therefore, could not say if Mr. Dorsey was grabbing Officer Carter\u2019s weapon. However, they did hear someone yelling things like: \u201cHe\u2019s grabbed the gun[,]\u201d \u201c[l]et go; let go; let go,\u201d and \u201clet go of the gun.\u201d Some of the Locklear family deposition testimony differed from State Bureau of Investigation (\u201cSBI\u201d) reports written after SBI agents had interviewed those family members immediately following the shooting. The officers were not able to subdue Mr. Dorsey and, at some point during the struggle, Officer Liberto drew his service weapon and shot Mr. Dorsey in the head at close range. Mr. Dorsey died at the scene.\nThis action was filed on 16 September 2011 by William S. Mills, administrator of Mr. Dorsey\u2019s estate (\u201cPlaintiff\u2019). Plaintiff\u2019s complaint named as defendants Duke University (\u201cDuke\u201d), Officer Carter, and Officer Liberto (together, \u201cDefendants\u201d). Plaintiff\u2019s complaint included as causes of action: (1) wrongful death/negligence, (2) wrongful death/ assault and battery, and (3) wrongful death/willful and wanton conduct. Defendants filed a motion for summary judgment on 2 May 2013, alleging that the officers: (1) were \u201clegally justified in using reasonable force to protect the lives and safety of themselves and other innocent bystanders[,]\u201d (2)- were \u201centitled to public official immunity[,]\u201d (3) \u201cacted reasonably at all times and there [was] no negligence or other grounds for liability which can be imputed to Duke[,]\u201d (4) committed no acts justify-' ing punitive damages, and (5) that \u201c[Mr.] Dorsey\u2019s actions at the time of the incident. . . were the sole proximate cause of his death and constitute contributory negligence[.]\u201d\nThe trial court entered judgment on 6 June 2013 granting summary judgment in favor of Defendants on all claims, and dismissing the action with prejudice. Plaintiff appeals. There are additional relevant facts that will be discussed in the body of the opinion.\nI.\nPlaintiff argues that the trial court erred in granting summary judgment in favor of Defendants. We disagree.\nWe first note that all Plaintiff\u2019s arguments on appeal concern Officers Carter and Liberto in their individual capacities, and that Plaintiff does not argue that summary judgment, with respect to Duke, was improper. Therefore, summary judgment in favor of Duke is affirmed. Likewise, to the extent, if any, that Plaintiff\u2019s complaint contained claims against Officers Carter and Liberto in their official capacities, summary judgment on those claims is affirmed.\nSummary judgment is proper only \u201c \u2018if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 578-79, 573 S.E.2d 118, 123 (2002) (citation omitted).\nThis Court has recognized that deciding what constitutes a bona fide issue of material fact is seldom an easy task. Nonetheless, we have instructed that \u201can issue is genuine if it is supported by substantial evidence,\u201d which is that amount of relevant evidence necessary to persuade a reasonable mind to accept a conclusion. Further, we have said that \u201c[a]n issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.\u201d The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. If the movant successfully makes such a showing, the burden then shifts to the nonmovant to come forward with specific facts establishing the presence of a genuine factual dispute for trial. \u201cWhen considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmov-ing party.\u201d \u201cAll inferences of fact must be drawn against the movant and in favor of the nonmovant.\u201d\nId. at 578-79, 573 S.E.2d at 123-24 (citations omitted).\nII.\nWe must first address whether Officers Carter and Liberto are protected by public official immunity. \u201c \u2018[Pjublic officials cannot be held individually liable for damages caused by mere negligence in the performance of their governmental or discretionary duties.\u2019 Police officers are public officials.\u201d Clayton v. Branson, 153 N.C. App. 488, 492, 570 S.E.2d 253, 256 (2002) (citations omitted). \u201cA public official can be held individually liable if it is prove [n] that his act, or failure to act, was corrupt or malicious, or that he acted outside of and beyond the scope of his duties.\u201d Id. (citation and quotation marks omitted).\nPlaintiff contends that the officers cannot be covered by public official immunity because they were hired by, and were working for, a private institution - Duke University. We disagree.\n\u201c[A] policeman is an officer of the State.\u201d State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965) (citations omitted). \u201cIt is not the method by which a policeman becomes a member of the police force of a municipality that determines his status but the nature and extent of his duties and responsibilities with which he is charged under the law.\u201d Id. \u201cTo constitute an office, as distinguished from employment, it is essential that the position must have been created by the constitution or statutes of the sovereignty, or that the sovereign power shall have delegated to an inferior body the right to create the position in question.\u201d Id. \u201cAn essential difference between a public office and mere employment is the fact that the duties of the incumbent of an office shall involve the exercise of some portion of the sovereign power.\u201d Id.; see also State v. Ferebee, 177 N.C. App. 785, 788, 630 S.E.2d 460, 462 (2006) (citation omitted) (\u201cUnder ... the Campus Police Act, campus police officers have the same statutory authority granted to municipal and county police officers to make arrests for both felonies and misdemeanors and to charge for infractions within their jurisdictions. As such, they qualify as \u2018public officers\u2019 pursuant to N.C. Gen. Stat. \u00a7 14-223.\u201d).\nOur General Assembly granted certain private universities the power to create campus police agencies through the enactment of Chapter 74G, the Campus Police Act. N.C. Gen. Stat. \u00a7\u00a7 74G-1 to 13 (2013). \u201cAs part of the Campus Police Program, the Attorney General is given the authority to certify a private, nonprofit institution of higher education ... as a campus police agency and to commission an individual as a campus police officer.\u201d N.C.G.S. \u00a7 74G-2(a). \u201cThe principal State power conferred on campus police by this Chapter is the power of arrest[.]\u201d N.C.G.S. \u00a7 74G-2(b)(6). \u201cIn exercising the power of arrest, these officers apply standards established by State and federal law only[.]\u201d N.C.G.S. \u00a7 74G-2(b)(8). \u201cCampus police officers, while in the performance of their duties of employment, have the same powers as municipal and county police officers to make arrests for both felonies and misdemeanors and to charge for infractions\u201d on campus and other property as allowed by the Campus Police Act. N.C.G.S. \u00a7 74G-6(b).\nIt is clear that campus police such as Officers Carter and Liberto, like municipal police officers, act pursuant to authority granted by our General Assembly, and that their duties involve \u201cthe exercise of some portion of the sovereign power.\u201d Hord, 264 N.C. at 155, 141 S.E.2d at 245. We hold that Officers Carter and Liberto are entitled to public official immunity for their acts in furtherance of their official duties so long as those acts were not corrupt, malicious, or outside of and beyond the scope of their duties. Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256.\nin.\nPlaintiff first contends there existed \u201cgenuine issues of material fact such that summary judgment was improper.\u201d All three of Plaintiffs claims were for wrongful death. Specifically, Plaintiff argues:\nA genuine issue of fact clearly exists here, where one witness is claiming that Mr. Dorsey had a hold of Officer Carter\u2019s gun throughout the entire duration of the struggle, which was said to last more than three minutes, and where several other witnesses, those who were in close proximity to the events, testified that Mr. Dorsey did not, at any time, reach for or grab Officer Carter\u2019s gun. The contradictory nature of the testimony of these witnesses is simply too glaring.\nPlaintiff contends in his brief that the deposition testimony of Mr. Pamplin, Duke security guard Mark Golby, and Christine Locklear support the above argument. However, none of these witnesses testified that: \u201c[Mr.] Dorsey did not, at any time, reach for or grab Officer Carter\u2019s gun.\u201d None of these witnesses testified in any manner to even a suspicion that Mr. Dorsey never grabbed Officer Carter\u2019s gun. These witnesses testified that, from where they were located during the incident, they could not see Mr. Dorsey\u2019s hands or Officer Carter\u2019s weapon. Because they could not see what was happening with Officer Carter\u2019s weapon during the struggle, they could not honestly state that they ever saw Mr. Dorsey grab Officer Carter\u2019s weapon. They did, however, provide the following testimony.\nMr. Pamplin testified, inter alia, that during the several-minute struggle, he heard the officers yell \u201c[s]top resisting[,]\u201d heard Officer Carter say: \u201cHe has my gun[,]\u201d saw Officer Carter and Mr. Dorsey struggling both standing up and on the ground and heard the officers repeatedly command Mr. Dorsey to: \u201cLet go of the gun; let go of the gun.\u201d When Mr. Pamplin was asked if he had \u201cany reason to doubt that Mr. Dorsey was holding the gun,\u201d he answered: \u201cNo.\u201d When asked if he thought Mr. Dorsey did grab Officer Carter\u2019s weapon, he answered: \u201cYes.\u201d Mr. Pamplin\u2019s testimony was generally consistent with that of both Officer Carter and Officer Liberto. This testimony is directly contrary to the following statement made by Plaintiff in his brief: \u201c[Mr.] Pamplin testified that. . . Officer Carter yelled to Officer Liberto that Mr. Dorsey had a hold of Officer Carter\u2019s weapon, although [Mr.] Pamplin denied that Mr. Dorsey ever actually had a hold of Officer Garter\u2019s gun. (Pamplin Dep., p. 45).\u201d (Emphasis added). Nowhere on page forty-five\u2014or anywhere else in Mr. Pamplin\u2019s deposition\u2014does he testify that Mr. Dorsey never \u201chad a hold\u201d of Officer Carter\u2019s weapon.\nIn his deposition, Duke security guard Mark Golby (\u201cMr. Golby\u201d), testified as follows:\nQ. Okay. You gave some testimony in which you said you never saw [Mr.] Dorsey\u2019s hands on the gun; you never saw those sorts of things. From [where] you were standing, you were not able to see [Officer] Carter\u2019s gun, were you?\nA. No.\nQ. And you were not able to see [Mr.] Dorsey\u2019s hands or [Officer] Carter\u2019s hands at that time, were you?\nA. No, I couldn\u2019t see.\nQ. So when you\u2019re saying you never saw this, what you\u2019re really saying is you couldn\u2019t see it?\nA. Right.\nMr. Golby further testified that, during the struggle, Officer Carter said Mr. Dorsey had a hold of Officer Carter\u2019s weapon, that Officer Liberto told Mr. Dorsey several times to let go of the weapon, and that Officer Liberto finally told Mr. Dorsey that if he did not release the weapon, Officer Liberto would shoot him. Nowhere did Mr. Golby indicate that Mr. Dorsey did not reach for or grab Officer Carter\u2019s weapon. Mr. Golby\u2019s deposition testimony is generally consistent with that of both Officer Carter and Officer Liberto.\nChristine Locklear testified she saw the officers talking to Mr. Dorsey, but did not hear what was said. She saw them begin to scuffle and saw Mr. Dorsey and Officer Carter fall to the ground. She then went inside the hospital, and was inside when the shot was fired. As she was about to enter the hospital, immediately before she heard the shot, she \u201cheard somebody say \u2018he\u2019s got his hands on the [weapon.]\u2019 \u201d At Christine Locklear\u2019s deposition, when asked, she agreed she did not \u201cknow whether or not Mr. Dorsey got his hand on the officer\u2019s weapon[,]\u201d she \u201cjust didn\u2019t see that[,]... if when he fell, that was going on - if when he fell that Mr. Dorsey did reach for it, I did not see it. Honey, I got away from that.\u201d Christine Locklear did not say it did not happen. Plaintiff\u2019s attorney asked her if, when Mr. Dorsey and the officers were struggling on the ground, she thought \u201cthat Mr. Dorsey presented a serious risk of harm to the police officers?\u201d She answered:\nI did. ... I thought he could have grabbed his gun. . . . I mean, it was like he got in a rage or something when they asked him. You know, or I assumed they asked him to leave the premises, and it was like he got in a rage and real angry, I mean, just because of the assumptions or whatever. He was real, real upset. He was really angry.\nChristine Locklear testified that, immediately after the shooting, she heard people talking about what had just happened, and she heard people saying things like:\nYeah, that he did grab the Law\u2019s gun and that\u2019s the reason and I heard that - I assumed that the white man did hit him with the baton to get him off the Law but no way -1 mean, it was said that he was beat with the baton, and he would not let go of the officer\u2019s gun that he had; so after [the officer] beat [him] so long and he wouldn\u2019t let go, that\u2019s when, I reckon, they drew the gun. And it was said that, you know, they told him to let go and he wouldn\u2019t and so he shot him.\nChristine Locklear stated she didn\u2019t specifically remember if any of her family members said they saw Mr. Dorsey grab the gun. Nowhere in the testimony of Mr. Pamplin, Mr. Golby, or Christine Locklear did either of them state that Mr. Dorsey did not grab Officer Carter\u2019s weapon, or that they believed Mr. Dorsey never grabbed Officer Carter\u2019s weapon.\nMultiple other witnesses testified by deposition that they did see Mr. Dorsey attempting to take Officer Carter\u2019s weapon from Officer Carter\u2019s holster. Alena Hull (\u201cMs. Hull\u201d) testified:\nA And they went to fighting and stuff, and the black officer [Carter], he was down on the ground; but the white officer [Liberto], now, he had out his gun.\nA And telling the boy [Mr. Dorsey] to give up - he kept telling the boy to give up because they were already fighting him and beating him and he never would give up, and the black Law and him, they went down to the ground; and he had .his hand on the Law\u2019s pistol.\nQ Okay. Who did?\nA The guy that was shot.\nQ Okay. When you saw that, did you think he [Mr. Dorsey] was trying to take [Officer Carter\u2019s] gun?\nA Yes, sir because he was in a rage.\nA My opinion, the black guy that was down on the ground and the one that was shot, the white officer had no other choice but to shoot him where he shot, being honest, because if he would have done anything else, he would have shot the other officer.\nA He was hitting him in his back, his head, [with what looked like a \u201cblackjack\u201d] and he never would turn loose.\nIt is true that a report made by SBI Special Agent B.S. Fleming following an on-site interview with Ms. Hull shortly after the incident does not include the same detail. According to Agent Fleming\u2019s report, Ms. Hull told him \u201cshe heard someone scream that someone had a gun[,]\u201d saw two officers fighting with a man, and saw a white officer with his weapon drawn. According to this report, Ms. Hull could not see what was happening with Officer Carter\u2019s weapon or Mr. Dorsey\u2019s hands.\nKrecia Ann Brayboy (\u201cMs. Brayboy\u201d) testified that Mr. Dorsey grabbed the black officer\u2019s weapon with his right hand and she thought at that time the black officer \u201cthrew his hand on top of [Mr. Dorsey\u2019s] hand trying to keep [Mr. Dorsey] from pulling [the officer\u2019s weapon]; getting it out of [the holster].\u201d Ms. Brayboy testified,\nto me, if he would have fired anywhere else below the shoulders, the black officer would have gotten shot. Truthfully, to be honest, I\u2019m sorry for what happened, but the officer really had no other choice because if this man would have gotten this weapon unhooked, it would have been chaos there. There isn\u2019t any telling who all would have been killed[.]\nMs. Brayboy heard the white officer saying: \u201cLet it go, let it go. Let it go, let it go.\u201d Further, according to Ms. Brayboy, Mr. Dorsey\njust would not let that weapon go.[t]hey could not get him to break that grip.All I know is Mr. Dorsey had a grip of that man\u2019s weapon and would not let go. They begged and begged and begged this man to let this weapon go and he wouldn\u2019t.\nMs. Brayboy admitted she had -withheld most of this information from the SBI agent who interviewed her on the night of the incident; instead, stating that she had been inside at the time and had not seen anything.\nCharles Brayboy (\u201cMr. Brayboy\u201d) testified that Mr. Dorsey grabbed Officer Carter\u2019s weapon and would not let it go.\nI don\u2019t know how in the world [Officer Carter] held onto that guy and held his hand. The cop was telling him to let it go, man; let it go.He begged him, man. He begged him to let it go, man. He tried his best.... He told him to let it go, man. He said let it go, man; let it go; let it go, man; let it go. He didn\u2019t want to do it, man.I was scared if he got that gun out, man, there wasn\u2019t any telling what he might have done.\nMr. Brayboy testified he had withheld information from the original investigating officer, but, after thinking about the situation, he realized had it been his child who had been shot, he would have wanted to know why it happened.\nDebbie Locklear first told investigators she saw the officers struggling with Mr. Dorsey, and heard them yelling, \u201c \u2018put it down\u2019 and \u2018let it go\u2019 over and over again.\u201d She told investigators she did not see what was in Mr. Dorsey\u2019s hands. In her opinion, the officers \u201cdid what they had to do\u201d because Mr. Dorsey \u201crefused to surrender\u201d and the officers were \u201cin danger.\u201d In her deposition testimony, Debbie Locklear stated:\n[Mr. Dorsey] was very, very - he was on something. This black guy, his eye balls were that big. They tussled. They fought. They tussled. I mean, they had a black - some kind of thing. I mean, they were just trying to make him - you know. When he got his hand on that gun - his gun was in the holster. The black guy got his hand on that gun and would not let that gun go, and when I gave this statement, I was throwing up. I was so disgusted. I was scared, crying, and everything else, and when you get in a state of mind like that there and you know when your life is on the line, too, your mind goes blank.\nPlaintiff agrees that Mr. Dorsey and Officer Carter became engaged in a struggle; that Officer Liberto hit Mr. Dorsey multiple times with his fist and his standard issue baton; that Mr. Dorsey and Officer Carter fell to the ground, still locked in a struggle; and that Officer Liberto finally drew his service weapon and shot Mr. Dorsey in the head. Both officers testified that Mr. Dorsey grabbed Officer Carter\u2019s weapon and would not let it go. They both testified that Officer Liberto attempted to get Mr. Dorsey to release the weapon by hitting Mr. Dorsey with his fist. Officer Liberto testified when that did not work, he removed his baton and began hitting Mr. Dorsey with the baton, but that Mr. Dorsey still would not release Officer Carter\u2019s weapon. The officers testified that Officer Liberto repeatedly commanded Mr. Dorsey to let go of the weapon. According to both officers, after Officer Carter and Mr. Dorsey fell to the ground, Officer Carter called out that Mr. Dorsey was pulling on the weapon. Officer Carter testified that his weapon was pulled partially out of his holster. Officer Liberto testified that Officer Carter yelled thatMr. Dorsey was \u201cgetting [his] gun.\u201d Both officers testified they believed Mr. Dorsey was an immediate threat because he was pulling on the weapon, would not release it, and might have gained control of it.\nPlaintiff\u2019s own expert, Francis Murphy (\u201cMr. Murphy\u201d), testified he believed Mr. Dorsey grabbed Officer Carter\u2019s weapon, though he believed it happened after Officer Liberto had hit Mr. Dorsey with his fists and the baton. Mr. Murphy also testified he believed the reason Officer Liberto shot Mr. Dorsey \u201cwas because he was inadequately trained. He didn\u2019t know how to control the situation. He didn\u2019t know how to break the situation up.\u201d Mr. Murphy testified he didn\u2019t believe Officer Liberto wanted to shoot Mr. Dorsey; his opinion was that the officers were trying to arrest Mr. Dorsey without legal justification and that, due to poor training, the officers used unnecessary force and Mr. Dorsey responded. When asked: \u201cBut once [attempts to subdue Mr. Dorsey] had failed and they got to this point where the deadly force appeared to be imminent to be used against them, that\u2019s why [Officer Liberto] shot [Mr. Dorsey]?\u201d Mr. Murphy replied: \u201cSure.\u201d\nViewing the evidence in the light most favorable to Plaintiff, Plaintiff provided no evidence tending to show that Mr. Dorsey did not attempt to gain control of Officer Carter\u2019s weapon. \u201cAt the summary judgment stage, plaintiffs cannot rely on the allegations of the complaint; rather, plaintiffs need to present specific facts to support their claim.\u201d Haynes v. B & B Realty Grp., LLC, 179 N.C. App. 104, 109, 633 S.E.2d 691, 694 (2006) (citation omitted).\nOur Supreme Court has long held:\nIt is axiomatic that every person has the right to resist an unlawful arrest. In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense. True the right of a person to use force in resisting an illegal arrest is not unlimited. He may use only such force as reasonably appears to be necessary to prevent the unlawful restraint of his liberty. And where excessive force is exerted, the person seeking to avoid arrest may be convicted of assault, or even of homicide if death ensues[.]\nIn applying this rule of law, this Court has engaged in the following analytical framework:\nSince the initial arrest . . . [was] illegal, plaintiff was entitled to use a reasonable amount of force to resist. Under this analysis, if the amount of force used by plaintiff was unreasonable . . ., then the officers had probable cause to arrest him under G.S. \u00a7 14-33(b)(8) [the statute criminalizing an assault on a law enforcement or government officer].\nMoreover, the General Assembly has also provided that an individual \u201cis not justified in using a deadly weapon or deadly force to resist an arrest by a law-enforcement officer using reasonable force,\u201d when the individual knows that it is a true law enforcement officer who is attempting to make the arrest. N.C. Gen. Stat. \u00a7 15A-401(f)(l) (2005).\nState v. Branch, 194 N.C. App. 173, 177, 669 S.E.2d 18, 20-21 (2008) (citations omitted). This Court has applied the same analysis when reviewing detentions not amounting to arrest. Id. at 178, 669 S.E.2d at 21.\nAssuming, arguendo, the officers had no legal basis to detain Mr. Dorsey, Mr. Dorsey was not justified to resort to deadly force in response to that detention. Once Mr. Dorsey grabbed Officer Carter\u2019s weapon, he exceeded any \u201cforce as reasonably appealed] to be necessary to prevent the unlawful restraint of his liberty.\u201d Id. at 177, 669 S.E.2d at 20. Mr. Dorsey\u2019s response was excessive, and became unlawful. Id. at 177, 669 S.E.2d at 20-21. Had the officers managed to subdue Mr. Dorsey without the use of deadly force, they could have, and almost certainly would have, arrested Mr. Dorsey.\nAn officer may resort to the use of deadly force \u201c[t]o defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force[.]\u201d N.C. Gen. Stat. \u00a7 15A-401(d)(2) (a) (2013). \u201cThis portion of the statute \u2018was designed solely to codify and clarify those situations in which a police officer may use deadly force without fear of incurring criminal or civil liability.\u2019 \u201d Turner v. City of Greenville, 197 N.C. App. 562, 567, 677 S.E.2d 480, 484 (2009) (citation omitted).\nAlthough Plaintiff presented expert testimony in support of his claim that Mr. Dorsey\u2019s hands were not on Officer Carter\u2019s weapon at the time Officer Liberto shot Mr. Dorsey, \u201c[a] public official can [only] be held individually liable if it is \u2018prove[n] that his act, or failure to act, was corrupt or malicious, or that he acted outside of and beyond the scope of his duties.\u2019 \u201d Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256 (citations omitted). John Eric Combs (\u201cMr. Combs\u201d), an instructor for the North Carolina Justice Academy, testified concerning the required \u201csubject control and arrest techniques lesson plan for law enforcement officers\u201d in North Carolina. Mr. Combs testified he did not know if Mr. Dorsey\u2019s hands were on the gun at the time Officer Liberto fired the shot, but it would not have changed his opinion that Officer Liberto\u2019s use of deadly force was justified. Mr. Combs stated: \u201cWe specifically teach in the subject control arrest techniques training program that any attack that includes an attempt to disarm an officer is a deadly force attack.\u201d Mr. Combs was asked: \u201cSo an officer would be entitled to counter that deadly force with the use of deadly force?\u201d Mr. Combs responded: \u201cYes, sir.\u201d Mr. Combs further opined: \u201cAs far as a situation where two officers axe around, an assailant grabs an officer\u2019s weapon, my suggestion at that point is for the other officer to do exactly what [Officer] Liberto did and use deadly force.\u201d\nFormer SBI Agent Steven Carpenter testified that in his opinion:\nLooking at all the depositions and stuff, and applying North Carolina\u2019s General Statute 15a-401, they very, very early in this struggle had every reason in the world to believe [Mr. Dorsey] intended to take that gun and harm somebody. They were responsible for protecting a large number of citizens around them that night.As a police officer they had a responsibility to protect those people, and, if anything, I don\u2019t think they reacted quick enough to ensure that these people did not meet with serious injury or death.\nWe hold that the evidence, viewed in the light most favorable to Plaintiff, does not show that the acts of the officers leading to Mr. Dorsey\u2019s death were \u201c \u2018corrupt or malicious, or... outside of and beyond the scope of [their] duties.\u2019 \u201d Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256 (citations omitted). We affirm the grant of summary judgment in favor of Officer Carter and Officer Liberto on Plaintiff\u2019s claims of wrongful death against the officers in their individual capacities.\nPlaintiff also argues the trial court erred in granting summary judgment on Plaintiffs claim of false arrest. Plaintiff\u2019s complaint did not contain a claim for false arrest. Plaintiff filed a motion for leave to file first amended complaint, adding a claim for false arrest, four days before the hearing on Defendants\u2019 motion for summary judgment. The trial court heard Plaintiff\u2019s motion after it had heard Defendants\u2019 motion for summary judgment and, at the close of the hearing, stated: \u201cI\u2019m going to take the motion to amend the complaint, as well as the motion for summary judgment under advisement.\u201d As Plaintiff acknowledges in his brief, \u201cthe [trial court] failed to rule on the motion to amend.\u201d \u201c[Generally, the failure to obtain a ruling on a motion presented to a trial court renders the argument raised in the motion unpreserved on appeal. See N.C.R. App. P. 10(a)(1) (2012).\u201d Dep\u2019t of Transp. v. Webster, _ N.C. App. _, _, 751 S.E.2d 220, 223 (2013) disc. review denied, _ N.C. _, 755 S.E.2d 618 (2014). The present issue does not fall outside the general rule. Plaintiff has failed to preserve this argument for appellate review. Id.\nBecause of our holdings above, we do not reach Plaintiff\u2019s argument concerning contributory negligence.\nAffirmed.\nChief Judge MARTIN and Judge CALABRIA concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Law Office of Michael R. Dezsi, PLLC, by Michael R. Dezsi, pro hoc vice; and Tin Fulton Walker & Owen, PLLC, by Adam Stein, for Plaintiff-Appellant.", "CranJW, Sumner & Hartzog, LLP, by Dan M. Hartzog and Katie Weaver Hartzog, for Defendants-Appellees." ], "corrections": "", "head_matter": "WILLIAM S. MILLS, Ancillary Administrator of the Estate of AAEON LORENZO DORSEY, Deceased, Plaintiff-Appellant v. DUKE UNIVERSITY, a Not for Profit Corporation, LARRY CARTER, and JEFFREY LIBERTO, Jointly and Severally, Defendants-Appellees\nNo. COA13-1164\nFiled 17 June 2014\n1. Immunity\u2014public official immunity\u2014campus police officers\nCampus police officers are entitled to public official immunity for their acts in furtherance of their official duties so long as those acts were not corrupt, malicious, or outside of and beyond the scope of their duties.\n2. Wrongful Death\u2014officers in individual capacities\u2014summary judgment\u2014no showing acts were corrupt, malicious, or outside of and beyond scope of duties\nThe trial court did not err by granting summary judgment in favor of defendants on plaintiff\u2019s claims of wrongful death against defendant officers in their individual capacities. The evidence viewed in the light most favorable to plaintiff did not show that the acts of the officers leading to the victim\u2019s death were corrupt, malicious, or outside of and beyond the scope of their duties.\n3. Appeal and Error\u2014preservation of issues\u2014failure to obtain ruling at trial court\u2014false arrest\nAlthough plaintiff contended the trial court erred in a wrongful death case by granting summary judgment in favor of defendants on plaintiff\u2019s claim of false arrest, plaintiff failed to preserve this issue based on failure to obtain a ruling at the trial court.\nAppeal by Plaintiff from judgment entered 6 June 2013 by Judge Paul G. Gessner in Superior Court, Durham County. Heard in the Court of Appeals 17 March 2014.\nLaw Office of Michael R. Dezsi, PLLC, by Michael R. Dezsi, pro hoc vice; and Tin Fulton Walker & Owen, PLLC, by Adam Stein, for Plaintiff-Appellant.\nCranJW, Sumner & Hartzog, LLP, by Dan M. Hartzog and Katie Weaver Hartzog, for Defendants-Appellees." }, "file_name": "0380-01", "first_page_order": 390, "last_page_order": 404 }