Appeals Court case may have implications for Beaufort County | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    In a case that has eerie implications for Beaufort County, a unanimous N. C. Court of Appeals decision filed this week (7-19-11) has held that the parents of a UNC-W student who was shot and killed by a New Hanover "Emergency Response Team" member may sue UNC-W for its police department's providing "inaccurate and misleading" information to the Sheriff's Department, in order to secure the service of a warrant the UNC-W police department wanted the Sheriff's Department to serve on the student who was shot and killed.

    Here's how the COA described the factual background of the case:

    On 1 December 2006, Peyton Brooks Strickland ("Strickland") was killed in his residence by a member of the New Hanover County Emergency Response Team (the "ERT"). The ERT was serving a warrant for Strickland's arrest when a member of the ERT mistook the noise of a battering ram hitting the door of Strickland's residence for the sound of gunfire and discharged his weapon through Strickland's front door, mortally wounding Strickland.

    The ERT had been deployed to serve Strickland's arrest warrant by the New Hanover County Sheriff's Department ("Sheriff's Department") after the Sheriff's Department received a request from the University of North Carolina at Wilmington ("UNC-W") police department for assistance in serving the warrant. The UNC-W police department had been investigating Strickland as a suspect in connection with a 17 November 2006 assault and theft on the UNC-W campus. Based on their investigations of the crime, of Strickland, and of others suspected to be involved in the crime, the UNC-W police department concluded that service of Strickland's arrest warrant was a potentially dangerous matter that necessitated Sheriff's Department assistance.


    The issue in the case was whether UNC-W was protected from being sued by the common law doctrine of "public duty" which holds that governmental entities, such as cities, counties or state agencies which have a duty to protect the public do not have a duty to protect each individual who may have been a victim of an act that the agency is charged to protect the general public from. For example, the courts have held that while the state has a duty to inspect workplace safety violations, it cannot be held liable for causing an injury to a particular individual who was injured by a violation the inspections did not correct.

    But in this case, the COA held the application of the "public duty doctrine" is not appropriate because the UNC-W police department provided inaccurate and misleading information about the victim in support of getting the Sheriff's Office to serve the warrant. The victim, a student at UNC-W, had been investigated for stealing some video game machines on campus. The UNC-W police department told the Sheriff's Office that the student was dangerous and known to have and use weapons. It was this inaccurate and misleading information that the COA said distinguished this case from the other cases it cited that provide governmental immunity against liability by the police department. In other words (ours), if the police had been doing their job correctly, then they would have been afforded immunity. That they consciously and negligently supplied bad information which caused the officer who shot the student to believe him to be armed and dangerous was viewed by the court as making them liable whereas otherwise they would not be.

    The case will likely be appealed to the N. C. Supreme Court, but because it was a unanimous decision by the COA there is no guarantee the Supreme Court will hear the case. If it does, and if the COA application of the public duty doctrine is upheld, then the case would have to go to trial on the facts of that particular case. But if the decision is upheld on appeal, it would mean that law enforcement agencies in the state will have to review their procedures and policies to insure that accurate information is exchanged between law enforcement officials in the normal performance of their duties and that an appropriate response is made based on the information at hand, not by some preconceived notions.

    Commentary

    We have all heard of "warnings" issued by law enforcement agencies that a suspect is "believed to be armed and dangerous." And while such warnings are appropriate, officials must be careful that such information does not cause another officer to be "trigger-happy" and thus cause someone to be injured who would otherwise have not been injured had bad information not been disseminated.

    Likewise, it is equally important for the official(s) receiving the information from another source to be careful to scrutinize that information to be as sure as they reasonably can be that the information is accurate and given the appropriate weight.

    The recent incident on which we are reporting in our To Protect and Serve: The siege on 12th Street, is an example. The evidence in that case indicates that the mindset of some of the officers who responded may have been distorted, not by the actual facts of that particular incident, but by preconceived attitudes possessed by some of those who responded to what could have actually been a situation much different from what they presumed they were responding to.

    Click here to read about the local case.

    If the information we have seen about the Wilmington case is correct, then you have to ask yourself this question: What would have caused a veteran, trained Emergency Response Team member to fire a high-powered rifle through a door at a suspect he could not see or even know whether he was armed or not? Clearly the officer was either terribly incompetent or he had been furnished information that led him to violate the first rule of firearm safety...."know your target." Police officers should never, or at least hardly ever, fire blindly at a threat any more than a hunter would fire at a movement in the brush without identifying his/her target.

    In the 12th Street case the officers apparently believed the suspect to be armed and dangerous, but others who knew him much better had no fear of him at all. Someone was wrong in assessing that situation.

    Such judgments are a matter for a jury to judge. Just because the shooter is a police officer does not mean his actions should not be reviewed by the same standard that would be applied to a homeowner who was faced with a threat and shot someone. The standard is well-known and should be retained: Use the minimum amount of force necessary to remove the imminent threat. And that judgment should be reviewable in a court of law by twelve citizens from off the street.

    Click here to read the COA decision.
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