John M. Kirby May 7, 2014

On August 7, 2012, the Court of Appeals held that the case of the victim of a shooting by Asheville police could go forward. This is an excellent opinion written by Judge Linda Stephens addressing police officer liability in North Carolina.

In this case, the police were pursuing a vehicle that fled from a traffic stop. The chase lasted for 20 minutes and reached speeds of 45 miles per hour. Three officers ultimately shot into the car. Two bullets struck the passenger, who sued the police. (No bullets struck the driver.) All three officers had been called off the chase at this time, but chose to go to a location to intercept the vehicle.

The court addressed the officer's arguments for "official immunity." This version of immunity is designed to protect "officials" performing discretionary actions, so that the fear of liability does not impair their ability to perform their job. Such an official can be held liable only in limited circumstances, including when he acts with malice. The court spent much of its opinion addressing this standard.

The court said that the standard (malice, or intent to injure) is met if the defendant exhibited "recklessness" or "heedless indifference to the safety and rights of others." The court also wrote, "a showing of mere reckless indifference is insufficient, and a plaintiff seeking to prove malice based on constructive intent to injure must show that the level of recklessness of the officer's action was so great as to warrant a finding equivalent in spirit to actual intent."

Regarding a claim against the police chief for inadequate training, the court held that this claim should have been dismissed.

The claims against all of the officers, however, were upheld. Regarding the first officer, the court noted that he was told to not join the chase, he shot 6 times at a car moving at 25 mph (described by the court as a "slow-moving vehicle"), and the Asheville police training materials also provide that officers should not shoot at moving vehicles unless the public threat is serious and imminent. His bullet was found in the plaintiff. (The opinion does not indicate whether the second bullet came from one of these officers.) Regarding the second officer, he was called off the pursuit, he fired 9 shots into the approaching car (which had a flat tire at this point), and 8 more as the vehicle was leaving, he was away from the path of the vehicle, and he began firing when the vehicle was 75 feet away. Regarding the third officer, she had been called off the chase. She hid behind bushes on the side of the street, and shot four times as the the vehicle passed at 20 miles per hour, she admitted she did not feel that she was in danger of imminent force being used against her, and she heard that the vehicle was occupied.

In another fascinating aspect of the opinion, the court addressed the arguments of the latter two officers that the plaintiff did not prove that they injured her. The court rejected this argument on the basis of "concurrent negligence." Pursuant to this theory, "if that first defendant gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." The court held that this doctrine applied on the facts presented.

The case of Wilcox v. Asheville provides a good discussion of "official immunity" in North Carolina. This opinion provides an extensive analysis on this doctrine. In many such cases, the courts hold that the officers are immune. One such example (which also raises statutes more specifically on point) is a high speed police chase. In North Carolina a person claiming injury from a high speed police chase faces an arguably insurmountable hurdle.

This website contains other recent North Carolina cases.