by David Reutter

The Fourth Circuit Court of Appeals reversed and remanded a federal district court's summary judgment granted to the Town of Seaboard in a diversity suit that alleged unreasonable use of deadly force. The court found that several genuine disputes of material facts exist on the record, so summary judgment was issued in error.

Brian Lee was shot by Sgt. Phillips while trying to flee from an angry mob. The mob had entered a physical confrontation with Lee and his passengers at a party in Seaboard. Officer Twine and Sgt. Phillips were providing security for the party but never attempted to stop the mob's aggression.

Lee was forced to drive away from the scene with attackers holding onto his car. He was being pursued by Phillips who thought Lee had struck someone with his car while fleeing. When Lee hit a dead end, he was forced to retrace his path. Phillips says he yelled for Lee to stop, but no one in the car heard that order. Phillips stepped to the side of the road and fired two shots into Lee's car. One shot shattered Lee's forearm.

Lee was eventually taken into custody and later released without charges. The State Bureau of Investigations reviewed the facts and chose not to bring charges against Sgt. Phillips or Lee. Lee filed a civil suit alleging negligent use of excessive force, assault and battery, and negligent supervision. The district court found Phillips' actions were justified, and it granted summary judgment.

On appeal, the Fourth Circuit found there was a genuine dispute on the imminent danger to Phillips. Phillips reported that he was struck by Lee's car, and he fired the shots as he was failing. Twine reported that Phillips was three feet away from the car firing at the side of the car, and Phillips fell almost 30 seconds after he had fired the shots.

There was also dispute as to the imminent danger to others. Phillips said he was worried for pedestrians' safety, but he could not specify any person in danger. Twine reported that there was no pedestrian in Lee's path.

The Fourth Circuit also held that Phillips had a duty to avoid the threat if possible. Phillips asserted that avoidance was not possible. However, the record showed Phillips' casings were found to the right and behind a van parked at the scene. Lee's use-of-force expert testified that Phillips could have used the van as "an avenue of escape."

The Fourth Circuit held that North Carolina law "does not immunize a municipality from liability for torts committed by a municipal employee acting in his official capacity," so the doctrine of public official immunity did not bar the suit. Seaboard was not entitled to government immunity because it waived that right by obtaining an insurance policy. Given the fact that genuine disputes of material facts exist on the record, the case was remanded back to the federal district court.

See: Lee v. Town of Seaboard, No. 16-1447, F. 3d (4^th Cir. 2017). Eric Lawrence Daggett represented Lee.

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