18 Jan North Carolina Deadly Force, §15A-401(d) & Public Officer Immunity – a Lawyer’s View
“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.” Thompson v. Farmer, 645 F. Supp. 109, 111 (W.D.N.C. 1996). Thus, §15A-401(d)(2) does not insulate officers from all liability for wrongful death and serious personal injury.
§15A-401(d) does not trump Federal law. It codifies not only rights and privileges of officers, but also their “duties” to arrestees, consistent with §1983. See, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 210 (Spring 2002). “N.C. Gen. Stat. 15A-401 provides both a statutory standard and a privilege for law enforcement officers which is consistent with common law as well as contemporary decisions by the United States Supreme Court regarding the use of force.” Id. Thus, Defendant’s immunity or liability under §15A-401(d) simply tracks his immunity or liability under the United States Constitution. See, e.g., Thompson, 945 F. Supp. at 110-111.
Even if arguendo North Carolina doctrine of public official immunity survives §15A-401(d), it applies only if the action involves the “exercise of judgment and discretion” and is not “corrupt, malicious or beyond the scope of authority”. See, e.g., McGuiness at 211 n. 26 (and North Carolina cases cited therein); Abney v. Cox, 2005 U.S. Dist. LEXIS 41890, *41 (M.D.N.C. 2005); Lea v. Kirby, 171 F.Supp.2d 579, 584 (M.D.N.C. 2001), aff’d in part and dism’d in part, 39 Fed. Appx. 901 (4th Cir. 2002). Showalter v. North Carolina Dept. of Crime Control and Pub. Safety, 2007 N.C. App. LEXIS 836, *8, 643 S.E. 2d 649, 652 (2007); Glenn-Robinson v. Acker, 140 N.C. App. 606, 626, 538 S.E. 2d 601, 615 (App. 2000) cert. den., 353 N.C. 372, 547 S.E. 2d 811 (2001). Further, public officer immunity at most applies only to state law claims. Federal civil rights claims are affected only by the qualified immunity doctrine. See, e.g. Massasoit v. Carter, 439 Supp.2d. 463, 480 (M.D.N.C. 2006).