# ESTATE OF JOSEPH LOPEZ v. HAMILTON

> District Court, M.D. North Carolina · August 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10254333

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254333

## How later opinions describe it (automated extraction)

- explaining that a limited stay of some but not all discovery while a criminal matter is pending can “[i]n practice . . . effectively stop[ ] the [civil] case in its tracks”
- noting officer testimony that supported that the “flailing about may have been simply [the suspect] fighting with the dog” rather than an attempt to fight the officers
- describing trespass as “a minor offense”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ESTATE OF JOSEPH LOPEZ by )
Administrator Joe Lopez, )
)
Plaintiff, )
) 1:22CV421
v. )
)
MATTHEW HAMILTON and CITY OF )
GREENSBORO, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.
The Estate of Joseph Lopez brings this action against Officer Matthew Hamilton of
the Greensboro Police Department and the City of Greensboro alleging that Officer Hamilton
shot Joseph Lopez in the face without justification, killing him. (ECF No. 1 ¶ 1.) Plaintiff’s
Complaint alleges two 42 U.S.C. § 1983 claims as well a state law wrongful death claim.
(Id. ¶¶ 33–45.) Before the Court is Officer Hamilton’s Motion for Judgment on the Pleadings
made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF No. 20.) Also
before the Court is Officer Hamilton’s Contingent Motion for Stay, which asks that, in the
event this Court denies the Motion for Judgment on the Pleadings, this Court stay the case
pending the resolution of a related criminal case against Officer Hamilton. (ECF No. 25.) For
the reasons stated herein, the Court will deny the Motion for Judgment on the Pleadings, and
the Court will likewise deny the Motion for Stay.
I. OFFICER HAMILTON’S MOTION FOR JUDGMENT ON THE
PLEADINGS
A. BACKGROUND
According to the Complaint, on the night of November 19, 2021, Officer Hamilton
and other Greensboro police officers responded to a report that someone was trying to enter
a residence. (ECF No. 1 ¶ 10.) When the officers arrived at the address, Lopez was “inside a
small room . . . located at the rear of a two-car garage at the residence.” (Id. ¶ 11.) Officer
Hamilton, who was a police dog handler, approached the small room with his dog and opened
the door. (Id. ¶ 12.) While standing near the open door, Officer Hamilton said, “Greensboro

police, if you’re in there, make yourself known.” (Id. ¶ 13.) Lopez replied, “Yes, I’m here.”
(Id. ¶ 14.) Officer Hamilton then said, “Come on out with your hands up or I’ll send my dog
in there and he’ll bite you.” (Id. ¶ 15.) Lopez responded that he would come out when it was
“safe” to do so. (Id. ¶ 16.) Officer Hamilton then released his police dog into the small room
and the dog attacked Lopez, who yelled out in distress. (Id. ¶¶ 17–18.) Within seconds of
releasing the dog into the room, Officer Hamilton also came through the door into the room

and shot his gun, hitting Lopez in the face and killing him. (Id. ¶¶ 19–20.) Lopez was
approximately fifteen feet away from Officer Hamilton and unarmed. (Id. ¶ 23.)
In this action, the Estate of Joseph Lopez has asserted a 42 U.S.C. § 1983 claim against
Officer Hamilton for using excessive force during the encounter, and a 42 U.S.C. § 1983 claim
against the City of Greensboro under Monell v. Department of Social Services of the City of New York,
436 U.S. 658 (1978). (ECF No. 1 ¶¶ 33–41.) The Monell claim is not at issue in the motions
currently before the Court.1 Plaintiff has also asserted a state law wrongful death claim against
Officer Hamilton. (Id. ¶¶ 42–45.)
B. Standard of Review
Under Rule 12(c) of the Federal Rules of Civil Procedure, “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the

pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is appropriate where the case
turns on a legal question and the pleadings demonstrate that the moving party is entitled to
judgment as a matter of law.” Fed. Ins. Co. v. S. Lithoplate, Inc., 7 F. Supp. 3d 579, 583 (E.D.N.C.
2014). Such a motion is generally analyzed “under the same standards as a motion to dismiss
under Rule 12(b)(6).” Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013). “The court
assumes the facts alleged by the nonmoving party are true” and draws all reasonable inferences

in favor of the nonmoving party. Lithoplate, 7 F. Supp. 3d at 583. Like a Rule 12(b)(6) motion,
a “Rule 12(c) motion tests only the sufficiency of the complaint and does not resolve the
merits of the plaintiff’s claims or any disputes of fact.” Drager v. PLIVA USA, Inc., 741 F.3d
470, 474 (4th Cir. 2014).
However, unlike when deciding a Rule 12(b)(6) motion to dismiss, the Court, when
deciding a motion for judgment on the pleadings, may consider the answer. Alexander v. City

of Greensboro, 801 F. Supp. 2d 429, 433 (M.D.N.C. 2011). Factual allegations contained in an

1 The City of Greensboro filed a response to Officer Hamilton’s Motion for Judgment on the
Pleadings stating that Greensboro does not oppose the motion. (ECF No. 30 at 2.) Greensboro also
argues in its brief that the Monell claim is derivative of the § 1983 claim against Officer Hamilton, and
further requests that the “Monell claim be dismissed in the event the Court grants Officer Hamilton’s
Motion for Judgment on the Pleadings.” (Id. at 4.) The Court will not consider this request because
the Local Rules do not permit parties to make motions within their response briefs; motions must be
set out in separate pleadings. L.R. 7.3(a).
answer “are taken as true only where and to the extent they have not been denied or do not
conflict with the complaint.” Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C. 1991). “To
survive a motion for judgment on the pleadings, ‘a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’” Conner v.
Cleveland County, 22 F.4th 412, 420 (4th Cir. 2022) (quoting Pledger v. Lynch, 5 F.4th 511, 520

(4th Cir. 2021)).
C. DISCUSSION
Officer Hamilton presents two issues in his Motion for Judgment: qualified immunity
from Plaintiff’s § 1983 claim and public official immunity from Plaintiff’s wrongful death
claim. (ECF No. 21 at 4–6.) The Court addresses each in turn.
1. Officer Hamilton is Not Entitled to Qualified Immunity
Pursuant to the doctrine of qualified immunity, government officials are shielded from

liability for civil damages so long as “their conduct does not violate clearly established statutory
or constitutional rights within the knowledge of a reasonable person.” Meyers v. Baltimore
County, 713 F.3d 723, 731 (4th Cir. 2013). As qualified immunity “is an immunity from suit
rather than a mere defense to liability,” the Supreme Court has “stressed the importance of
resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502
U.S. 224, 227 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). However, a

defendant who raises qualified immunity in a 12(b)(6) motion “faces a formidable hurdle”—
because dismissal at this early stage “is appropriate only if a plaintiff fails to state a claim that
is plausible on its face,” the defense “is usually not successful.” Owens v. Balt. City State’s Att’ys
Off., 767 F.3d 379, 396 (4th Cir. 2014) (quoting Field Day, LLC v. County of Suffolk, 463 F.3d
167, 191–92 (2d Cir. 2006)).
To determine whether a defendant is entitled to qualified immunity, the Court must
follow the two-step procedure articulated in Saucier v. Katz.2 See 533 U.S. 194, 201 (2001).
Generally, the Court first decides “whether a constitutional violation occurred.” Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011). On a 12(b)(6) motion to dismiss, this means asking
whether, “viewed in the light most favorable to the plaintiff,” the allegations in the complaint

“demonstrate a violation of the plaintiff’s constitutional rights.” See Harris v. Pittman, 927 F.3d
266, 270 (4th Cir. 2019). Second, the Court must examine “whether the right violated was
clearly established”—that is, “sufficiently clear that every reasonable official would have
understood” that his behavior violated the right at issue. See Henry, 652 F.3d at 531–34; Yates
v. Terry, 817 F.3d 877, 887 (4th Cir. 2016). This standard does “not require a case directly on
point.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Rather, “[w]hat matters is that it would

be clear to a reasonable officer that his or her conduct was unlawful in the particular situation
that he or she confronted.” Livingston v. Kehagias, 803 F. App’x 673, 679 (4th Cir. 2020)
(unpublished) (quotation omitted). To overcome a qualified immunity defense, a plaintiff
must prevail at both Saucier steps. See 533 U.S. at 201.
For an excessive force claim, at the first Saucier step courts apply a “standard of
objective reasonableness” to evaluate whether an officer’s use of force was excessive. Harris,

927 F.3d at 272 (quoting Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir. 2002)). Though the
standard defies “precise definition or mechanical application,” the three factors outlined in
Graham v. Connor—“[1] the severity of the crime at issue, [2] whether the suspect poses an

2 The Court has discretion to address each prong in the order “that will best facilitate the fair and
efficient disposition of each case.” Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015) (quoting Pearson
v. Callahan, 555 U.S. 223, 242 (2009)).
immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight”—provide a framework for evaluating
whether an officer’s actions were objectively reasonable. See 490 U.S. 386, 396 (1989). “The
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “The

calculus of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at
396–97. Officers may use deadly force only “where the officer has probable cause to believe
that a suspect poses a threat of serious physical harm, either to the officer or to others.” Cooper
v. Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

For the first Graham factor, Officer Hamilton argues that he had probable cause to
believe Lopez was committing a serious crime, specifically, “attempting to gain unauthorized
entry into the dwelling of another,” and that “there are no good scenarios” for why Lopez was
doing this. (ECF No. 21 at 13.) Officer Hamilton suggests that Lopez may have been “trying
to break and enter to steal items, or to potentially harm an occupant [of the residence].” (Id.)
Plaintiff responds by conceding that “it can be inferred from . . . the Complaint that there was

a previous attempt to enter a residence and an immediate trespass,” but points out that “there
are no allegations that [Lopez] was believed by [Officer] Hamilton or anyone else to be armed
or to have committed any acts of violence.” (ECF No. 33 at 10–11.)
Reading the Complaint in the light most favorable to Plaintiff, the Court notes that the
Complaint does not mention any previous incidents at the residence, nor does it allege that
Lopez lacked authorization to be in the residence, or even that the residence belonged to
someone else. (See ECF No. 1.) The Complaint only alleges that there had been a “report[ ]
that decedent Joseph Lopez had been trying to enter [the residence].” (Id. ¶ 10.) Thus, absent
Plaintiff’s concession regarding the circumstances of the incident, the Court would not infer
that Lopez had been committing any crime at all, not even trespass. Given Plaintiff’s

concession, however, the Court will treat the crime at issue here as trespass. However, the
Court will not go any further; Officer Hamilton’s suggestions about an intent to burglarize the
residence or harm someone within are pure speculation. Courts across the country
consistently treat trespass as a minor offense when addressing the Graham factors.3
Accordingly, the Court finds that the first Graham factor weighs in Plaintiff’s favor at this stage
of the litigation.

For the second Graham factor, Officer Hamilton argues that since he “couldn’t see
Lopez,” his “inability to determine whether this home intruder was armed would . . . cause a
reasonable officer to fear that the suspect could pose an immediate threat to the safety of the
officers or others.” (ECF No. 21 at 13–14 (emphasis in original).) Plaintiff responds by
highlighting various factual allegations that support that Lopez was not actually a threat. (See
ECF No. 33 at 11.) Plaintiff also asserts that “[t]he mere fact that [Lopez] was hiding in a

room and did not immediately comply with [Officer] Hamilton’s order to come out would not
cause a reasonable police officer to believe that [Lopez] posed an immediate threat of death

3 See, e.g., Blankenhorn v. City of Orange, 485 F.3d 463, 478 (9th Cir. 2007) (“[T]he severity of the alleged
crime, misdemeanor trespass, was minimal . . . .”); Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167,
174 (6th Cir. 2004) (describing trespass as “a minor offense”); M.Y.M. by & through Portillo v. Chavis,
582 F. Supp. 3d 323, 334 (E.D. Va. 2022) (describing trespass as an “unquestionably minor” crime);
see also N.C. Gen. Stat. § 14-159.12 (classifying first degree trespass as a misdemeanor offense in most
circumstances).
or serious bodily injury,” particularly since Lopez acknowledged the officer and told him that
he would come out when it was safe. (Id. at 11–12.)
In the Court’s view, Defendant’s argument is not persuasive. No reasonable officer
should think that merely not being able to see someone justifies shooting them, and, moreover,
the law of the Fourth Circuit requires much more than a fear of a possibility of a threat to

permit use of deadly force. Even where an officer knows that a suspect has a gun, “the mere
possession of a firearm by a suspect is not enough to permit the use of deadly force”—instead,
“deadly force may be used only by a police officer when, based on a reasonable assessment,
the officer or another person is threatened with the weapon.” Cooper, 735 at 159 (emphasis in
original). Here, according to the allegations, there was no indication that Lopez had any
weapon, and Lopez did not make any threats. Additionally, Officer Hamilton shot Lopez

immediately after ordering a police dog to attack him. Even if Officer Hamilton had initially
felt threatened by a man hiding in the back of a garage and refusing to come out, there was no
reason to think that Lopez still posed a threat to officers while being attacked by a police dog.
See Harris, 927 F.3d at 272 (“[E]ven when an initial use of force is objectively reasonable,
subsequent applications of force—even moments later—may not be . . . . ‘[F]orce justified at
the beginning of an encounter is not justified even seconds later if the justification for the

initial force has been eliminated.’” (quoting Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.
2005))). The Court therefore finds that the second Graham factor also weighs in Plaintiff’s
favor at this stage of the litigation.
Before turning to the third Graham factor, the Court notes that Officer Hamilton also
argues that he should prevail because “[a]n officer can reasonably perceive a danger even
where he does not actually see a weapon and is not certain that a suspect’s movement is the
beginning of an attack,” and because “Plaintiff . . . hasn’t eliminated the reasonable possibility
that an officer could reasonably have perceived that Lopez had a proximity to items [that one
would expect to find in a garage] that could be used as a weapon.” (ECF No. 21 at 15.) These
arguments are not persuasive because they are not tethered to any allegations in the pleadings.

Officer Hamilton does not identify any particular movement that may have been a threat.
Viewing the allegations in the light most favorable to Plaintiff and drawing reasonable
inferences in Plaintiff’s favor, the Court infers that Lopez’s movements were generally those
of a man struggling with a police dog. Additionally, while Lopez could have been near items
that he could have used as a weapon, no such items are mentioned in the pleadings, and there
are no allegations that Lopez took any actions consistent with that possibility.

Finally, for the third Graham factor, Officer Hamilton argues that Lopez was resisting
arrest, that “[t]he chaos of the situation was created by Lopez’s resisting arrest,” and that “[h]ad
[he] submitted to the authorities as ordered, there would have been no need for Officer
Hamilton to do a forcible entry into a small storage room on a dark night” and “there likely
would have been no shooting.” (ECF No. 21 at 16.) To support this argument, Officer
Hamilton relies heavily on footage from officers’ body-worn cameras. (Id. at 16–18.) Officer

Hamilton contends that the Court may consider these videos because they were incorporated
into the Complaint by reference and their authenticity is not in question. (Id. at 7.) Plaintiff
responds that it is not proper for the Court to consider the videos at this stage of the
proceedings, and that, looking only at the pleadings and ignoring the videos, the pleadings do
not support that Lopez was resisting arrest. (ECF No. 33 at 5–8, 11).
The Court finds that the Complaint does not incorporate the videos of the incident
by reference. The only mention of videos capturing the incident is made as part of an
allegation that Defendant City of Greensboro has exclusive access to them. (ECF No. 1 ¶ 27.)
“Simply because a video that captured the events complained of in the complaint exists does
not transform that video into a ‘document’ upon which the complaint is based.” Slippi-Mensah

v. Mills, No. 15-CV-7750, 2016 WL 4820617, at *3 (D.N.J. Sept. 14, 2016). The Court
therefore will not consider the videos. See Smith v. City of Greensboro, No. 19-CV-386, 2020 WL
1452114, at *3–4 (M.D.N.C. Mar. 25, 2020).
Looking only to the pleadings, the Court finds that Lopez is not alleged to have been
actively resisting arrest or attempting to flee from officers. He is alleged to have been hiding
in the back of a garage and refusing to come out until it was “safe.” There are no allegations

that he said anything abusive to the officers, that he made any verbal threats, or that he took
any actions suggestive of violence. Officers knew where he was and that he was not going
anywhere. Accordingly, the third Graham factor supports Plaintiff at this stage of the litigation.
Having determined that all three Graham factors support that shooting Lopez was a
constitutional violation under the circumstances alleged, the Court concludes that Plaintiff
prevails at the first Saucier step at this stage of the litigation. The allegations here make out a

constitutional violation. The Court therefore turns to the second Saucier step—whether “pre-
existing law ma[de] the unlawfulness of the conduct in question”—again, as alleged by Plaintiff
and drawing all reasonable inferences in Plaintiff’s favor—“apparent.” Harris, 927 F.3d at 281.
To determine whether a reasonable officer would have known that his conduct was
unlawful in a given situation, the Court typically “need not look beyond the decisions of the
Supreme Court, [the Fourth Circuit], and the highest court of the state in which the case
arose.” Wilson v. Kittoe, 337 F.3d 392, 402–03 (4th Cir. 2003) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)). However, when the “unlawfulness” of conduct
would be “apparent” to any reasonable person, a right may still be recognized as “clearly
established” even when there is no existing precedent directly on point. Clem, 284 F.3d at 553

(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Courts must be nevertheless careful
“not to define clearly established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018). While “general statements of the law are not inherently incapable of giving
fair and clear warning to officers,” specificity is crucial in the Fourth Amendment context, as
“it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will
apply to the factual situation the officer confronts.” Id. at 1152–53 (first quoting White v. Pauly,

580 U.S. 73, 79 (2017); and then quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).
Officer Hamilton argues that Plaintiff cannot prevail at the second Saucier step because
he has not identified the constitutional right he claims was violated and consequently has not
and cannot identify any case that would put an officer on notice that the specific conduct
alleged here violated that right. (ECF Nos. 21 at 18–25; 35 at 4–5.) Plaintiff responds that,
although Plaintiff has not located a case that is factually identical to what allegedly occurred

here, (ECF No. 33 at 12), the circumstances of this case made it so “obvious” that shooting
Lopez was a use of excessive force that a reasonable officer should have known that the rule
of Garner—that “a police officer may not seize an unarmed non-dangerous suspect by
shooting him dead”—forbade it, (ECF No. 33 at 16 (quoting Garner, 471 U.S. at 11–12)).
Officer Hamilton responds to Plaintiff’s invocation of the Garner rule by asserting that
the Supreme Court has held that this rule is only a general rule, that it “does not provide
sufficient notice about specific uses of deadly force,” and that reliance on it is a “mistake.”
(ECF No. 35 at 5.) However, none of the cases that Officer Hamilton cites for these assertions
support them. Instead, they favor Plaintiff’s arguments.

Officer Hamilton first cites White v. Pauly, 580 U.S. 73 (2017). In White, the Supreme
Court did state that Garner “lay[s] out excessive-force principles at only a general level.” Id. at
79. However, the Court then immediately added that “‘general statements of the law are not
inherently incapable of giving fair and clear warning’ to officers,” and that in “an obvious case”
Garner does clearly establish the law. Id. (first quoting United States v. Lanier, 520 U.S. 259, 271
(1997); and then quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). The next case that

Officer Hamilton cites, Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021), also recited the rule that
Garner will suffice in an “obvious case,” id. at 8 (quoting Brosseau, 543 U.S. at 199). Finally,
while the Supreme Court did refer to one particular use of Garner in an earlier case as
“mistaken” in Mullenix v. Luna, 577 U.S. at 13, it did not announce any blanket prohibition on
relying on Garner; instead, the Court in Mullenix merely emphasized that the inquiry whether it
was clearly established that certain conduct was unconstitutional must be “undertaken in light

of the specific context of the case, not as a broad general proposition,” id. (quoting Brosseau,
543 U.S. at 198).
Here, Plaintiff has argued that it was obvious at the time of the incident and under the
circumstances that Garner forbade shooting Lopez. (ECF No. 33 at 12–16.) The Fourth
Circuit has stated that at the second Saucier step the defendant carries the burden of proof.
Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Henry, 501 F.3d at 377–78 & n.4).
Officer Hamilton has not offered any arguments whatsoever that this was not an obvious case.
(ECF Nos. 21 at 18–20; 35 at 4–5.) Because Officer Hamilton bears the burden at this step
of the analysis, the failure to contest obviousness is, standing alone, sufficient reason to find
that Plaintiff prevails here.

Moreover, the Court agrees with Plaintiff that it should be obvious to any reasonable
officer that shooting an unarmed and unthreatening person who is not trying to flee immediately
after releasing a police dog on him is a use of excessive force under the general prohibition against
shooting unarmed, non-dangerous suspects.
Additionally, even if this were not obviously a constitutional violation, the Court’s
research has located a case from the Fourth Circuit where officers beat a man who was already

being attacked by a police dog. Kopf v. Wing, 942 F.2d 265, 266–67 (4th Cir. 1991). In that
case, officers were chasing suspects after an armed robbery. Id. at 266. Eventually, the officers
cornered the suspects in a narrow space behind a shed in the back yard of a house in a
residential neighborhood. Id. The officers released a police dog to flush the suspects out and
then closed in as well. Id. While one of the suspects was “kicking the dog and flailing his
arms,” he struck an officer. Id.; see also id. at 268 (noting officer testimony that supported that

the “flailing about may have been simply [the suspect] fighting with the dog” rather than an
attempt to fight the officers). The officers struck back with blackjacks. Id. at 266–67. By the
end of the altercation, the suspect was “frightfully mauled” and had to spend several weeks in
the hospital. Id. at 267. During the subsequent § 1983 litigation, the officers moved for
summary judgment, the district court granted that motion, and the Fourth Circuit reversed the
judgment and remanded for further proceedings. Id. at 267, 270. The Fourth Circuit’s
observations in that case included that a district court should not fault a suspect “for fighting
with [a] dog rather than surrendering” because “a jury could find it objectively unreasonable
to require someone to put his hands up and calmly surrender while a police dog bites [him].”
Id. at 268. The Fourth Circuit further stated that “even if [a jury] found that force was

necessary to arrest [the suspect], a reasonable jury could nonetheless find the degree of force
excessive.” Id. at 269.
Given the similarities between the circumstances of Kopf and this case—a cornered
suspect in an enclosed space, use of a police dog on the cornered person, escalation of force
after releasing the dog, and no apparent threatening or furtive movements by the suspect
(except for struggling with the dog)—the Court finds that Officer Hamilton should have been

on notice that he could not shoot Lopez under these circumstances. Indeed, in some ways
the case here presents facts more extreme than in Kopf. The incident in Kopf was precipitated
by an armed robbery, not a mere report of a possible trespass. Moreover, the suspects in Kopf
led police on a chase prior to the fight. Finally, the officers in Kopf used blackjacks rather than
a gun, and the suspects in Kopf lived.
For the foregoing reasons, the Court finds that Plaintiff prevails at both steps of the

Saucier analysis at this stage of the litigation. Plaintiff has plausibly alleged that Officer
Hamilton violated Lopez’s clearly established constitutional right to be free from excessive
force. Officer Hamilton therefore is not entitled to qualified immunity at this time.
2. Officer Hamilton is Not Entitled to Public Official Immunity
In North Carolina, public officials “engaged in the performance of governmental duties
involving the exercise of judgment and discretion” enjoy immunity from personal liability.4
Meyer v. Walls, 489 S.E.2d 880, 888 (N.C. 1997) (quoting Smith v. Hefner, 68 S.E.2d 783, 787
(N.C. 1952)). However, public official immunity may be pierced if it is proven that an officer’s

conduct was “corrupt or malicious” or “outside of and beyond the scope of his duties.” Id.
(quoting Hefner, 68 S.E.2d at 787). “An officer acts with malice when he ‘does that which [an
officer] of reasonable intelligence would know to be contrary to his duty.’” Cooper, 735 F.3d
at 160 (quoting Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003)). In other words, public
official immunity “is unavailable to officers who violate clearly established rights.” Bailey, 349
F.3d at 742. As this Court has found that the Complaint plausibly alleges that Officer

Hamilton violated Lopez’s clearly established rights, the Court therefore finds that public
official immunity is not available against the state law wrongful death claim at this stage of the
litigation.
II. OFFICER HAMILTON’S MOTION TO STAY
After the shooting on the night of November 19, 2021, the North Carolina State
Bureau of Investigation began an investigation of the incident. (ECF Nos. 32 at 3; 36 at 6.)
The government eventually decided to pursue charges against Officer Hamilton, and a grand

jury sitting in Guilford County indicted Officer Hamilton for manslaughter on June 6, 2022.
(ECF No. 25-1.) Plaintiff filed this civil case against Officer Hamilton that same day. (ECF
No. 1.) Officer Hamilton’s Contingent Motion for Stay seeks a stay of this case to preserve

4 “It is well settled that police officers are public officials.” Chastain v. Arndt, 800 S.E.2d 68, 75 (N.C.
Ct. App. 2017).
his Fifth Amendment right against self-incrimination in the criminal case, which the Court
understands is still pending. (ECF No. 25.)
“The power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself,
for counsel, and for litigants.” Maryland v. Universal Elections, Inc., 729 F.3d 370, 379 (4th Cir.

2013) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “Because of the frequency
with which civil and regulatory laws overlap with criminal laws, American jurisprudence
contemplates the possibility of simultaneous or virtually simultaneous parallel proceedings and
the Constitution does not mandate the stay of civil proceedings in the face of criminal
proceedings.” Id. (quoting Ashworth v. Albers Med., Inc., 229 F.R.D. 527, 530 (S.D. W.Va.
2005)). “The propriety of a stay is determined on a case-by-case analysis.” Ashworth, 229

F.R.D. at 531. “The party seeking a stay must justify it by clear and convincing circumstances
outweighing potential harm to the party against whom it is operative.” Williford v. Armstrong
World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983). In addition to examining the relationship
between civil and criminal matters and whether they involve the same issues, courts generally
consider the following factors:
(1) the interest of the plaintiffs in proceeding expeditiously with [the] litigation
or any particular aspect of it, and the potential prejudice to plaintiffs of a delay,
(2) the burden which any particular aspect of the proceedings may impose on
defendants; (3) the convenience of the court in the management of its cases,
and the efficient use of judicial resources; (4) the interests of persons not parties
to the civil litigation; and (5) the interest of the public in the pending civil and
criminal litigation.

Ashworth, 229 F.R.D. at 530 (quoting Keating v. Off. of Thrift Supervision, 45 F.3d 322, 325 (9th
Cir. 1995)).
Here, this case and the criminal case against Officer Hamilton are related and involve
the same issues—specifically, the reason or reasons why Officer Hamilton shot Lopez.
Officer Hamilton’s principal reason for seeking a stay is to protect his Fifth
Amendment right against self-incrimination. (ECF No. 26 at 1.) The issue for Officer
Hamilton is that he may wish to testify in his defense in this civil case (where his silence may

be used against him), but he would not want to thereby waive any Fifth Amendment
protections in the criminal proceeding (where his silence cannot be used against him) or to
have any of his civil testimony used there. (See id.) Officer Hamilton further argues that a stay
would “at most” delay this matter, and that such a delay would not constitute prejudice to
Plaintiff. (Id.) Officer Hamilton also proposes that a stay could even benefit Plaintiff and the
Court because some effort may be duplicated if the two cases proceed simultaneously; by

letting the criminal matter go first, this civil matter can take advantage of any evidence that
comes to light in the criminal matter. (Id. at 1–2, 10–11.) Finally, Officer Hamilton argues
that a stay is in the public interest because it will respect the Fifth Amendment, it will ensure
that civil disputes are resolved on a full factual record, and it will promote public confidence
that law enforcement officers are able to do their jobs without fear of prosecution or litigation.5
(Id. at 11–12.)

5 Officer Hamilton also argues that because the City of Greensboro is a North Carolina municipality
and North Carolina municipalities are instrumentalities of the State of North Carolina (i.e., the entity
prosecuting Officer Hamilton for manslaughter in the criminal case), there is a risk that the State will
manipulate the City of Greensboro into obtaining materials through the civil discovery process for
use in the criminal prosecution. (ECF No. at 7.) This argument is frivolous. If Officer Hamilton is
worried that his co-defendant might improperly disclose certain discovery materials to government
prosecutors, he may seek a protective order for those materials.
Plaintiff responds that Officer Hamilton has already waived his Fifth Amendment right
in this case by submitting an Answer to the Complaint rather than immediately seeking a stay.
(ECF No. 32 at 7–9.) Plaintiff also characterizes the timing and sequence of Officer
Hamilton’s motions in this case (including several motions related to discovery disputes) as
intentionally dilatory and indicative of an attempt to use his Fifth Amendment right as a

strategic tool. (Id.) Further, Plaintiff represents that, given the case backlog statistics in state
court, it could be years before the criminal case against Officer Hamilton has a trial date; thus,
Plaintiff argues, this is not a case of a reasonably short non-prejudicial delay. (Id. at 9–11.)
Regarding the public interest, Plaintiff urges that a stay would impair the public’s interest in
the prompt disposition of civil litigation—Plaintiff points out that while law enforcement
officers may be interested in seeing Officer Hamilton exonerated and civil litigation against

him stopped, the general public has an interest in seeing justice served when officers shoot
and kill suspects. (Id. at 12–13.) Finally, Plaintiff proposes that, if this Court rejects Plaintiff’s
arguments why no stay should be imposed, this Court could impose a stay that only prevents
discovery seeking testimony or interrogatory answers from Officer Hamilton. (Id. at 9.)
Plaintiff argues that this would allow this litigation to reasonably progress while protecting
Officer Hamilton’s Fifth Amendment rights; if any Fifth Amendment issues arise during the

pendency of the stay the Court can address them. (Id. at 9, 11.) Officer Hamilton states that
he would not object to such a limited stay. (ECF No. 36 at 2.)
The City of Greensboro has not taken a position on whether a stay is proper in this
case. (ECF No. 31 at 2–3.) However, the City of Greensboro asks that, if a stay is imposed,
“such stay should not be indefinite and should not extend beyond Friday, December 29,
2023.” (Id. at 3.)
The Court will not impose a stay in this case.
The Court recognizes that “the strongest case for deferring civil proceedings is where
a party under indictment for a serious offense is required to defend a civil or administrative

action involving the same matter” because “[t]he noncriminal proceeding, if not deferred,
might undermine the party’s Fifth Amendment privilege against self-incrimination, expand
rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b),
expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise
prejudice the case.” Ashworth, 229 F.R.D. at 531 (quoting SEC v. Dresser Indus., Inc., 628 F.2d
1368, 1375–76 (D.C. Cir. 1980)). However, the mere circumstance of having parallel civil and

criminal proceedings against the same party does not automatically justify a stay. Dresser, 628
F.2d at 1375 (“The Constitution . . . does not ordinarily require a stay of civil proceedings
pending the outcome of criminal proceedings.”). Nothing here makes this case unique
compared to other situations where there are parallel civil and criminal proceedings against
the same party. See Paine, Webber, Jackson & Curtis Inc. v. Malon S. Andrus, Inc., 486 F. Supp.
1118, 1119 (S.D.N.Y. 1980) (“[A] policy of freely granting stays solely because a litigant is

defending simultaneous multiple suits would threaten to become a constant source of delay
and an interference with judicial administration.”).
Moreover, the Court is very concerned that any stay imposed in this case that depends
on the criminal case reaching some resolution will cause a substantial delay. It has already
been over a year since Officer Hamilton was indicted (and over a year since this civil case was
filed). Before issuing this Memorandum Opinion and Order, the Court asked the attorneys
for the parties what the status of the criminal case was. Officer Hamilton’s attorney responded
that there was a Motion to Dismiss the Indictment pending in the criminal case and that it was
“very likely” to be heard sometime during the next six-month session of Superior Court. It is
possible that Officer Hamilton may prevail in that motion and this case could go forward

soon. However, it is also possible that Officer Hamilton may not prevail, and this case might
linger indefinitely. Even a limited stay that prevented only certain kinds of discovery would
not avoid this outcome, as discovery could not conclude until the stay lifted, which would not
occur until the criminal case concluded. See Sterling Nat’l Bank v. A-1 Hotels Int’l, Inc., 175 F.
Supp. 2d 573, 579 (S.D.N.Y. 2001) (explaining that a limited stay of some but not all discovery
while a criminal matter is pending can “[i]n practice . . . effectively stop[ ] the [civil] case in its

tracks”). “Civil plaintiffs who claim to be the victims of criminal activity do not deserve slower
justice than other plaintiffs.” Reeves v. Town of Cottageville, No. 12-CV-2765, 2013 WL 1566635,
at *2 (D.S.C. Apr. 12, 2013). Without some sign that the criminal proceeding is likely to
conclude within a reasonable amount of time, this Court will not enter a stay that depends on
developments in that case.
For the reasons stated herein, the Court enters the following:

ORDER
IT IS THEREFORE ORDERED that Officer Hamilton’s Motion for Judgment on
the Pleadings, (ECF No. 20), is DENIED.
IT IS FURTHER ORDERED that Officer Hamilton’s Contingent Motion for Stay,
(ECF No. 25), is DENIED.

This, the 2nd day of August 2023.
/s/Loretta C. Biggs
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254333. Public record. Not legal advice.