Knibbs v. Momphard

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-130-MOC-WCM

MELISSA KNIBBS, )

as personal representative of the Estate )

of Michael Scott Knibbs, )

)

Plaintiff, )

)

vs. )

)

) ORDER

)

ANTHONY MOMPHARD, JR., )

individually and in his official capacity )

as a deputy sheriff of the Macon County )

Sheriff’s Department, )

ROBERT HOLLAND, in his official )

capacity as the Sheriff of Macon County, )

WESTERN SURETY COMPANY, )

a South Dakota Corporation, )

THE OHIO CASUALTY INSURANCE )

a New Hampshire Corporation, )

)

Defendants. )

____________________________________)

THIS MATTER comes before the Court on a Motion for Summary Judgment by

Defendants, (Doc. No. 26).

I. BACKGROUND

A. PROCEDURAL BACKGROUND

In the early morning hours of Sunday, April 29, 2018, Macon County Sheriff’s Deputy

Anthony Momphard, Jr., shot and killed Michael Scott Knibbs. (Doc. No. 5 at ¶¶ 33–34, 83).

The shooting occurred after Momphard perceived that Knibbs pointed a shotgun at Deputy

Momphard’s face or upper chest area through a window at Knibb’s residence while Deputy

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Momphard was right outside the window on Knibbs’ porch. (Doc. No. 5; Momphard Dep., pp.

125–26, 180–81, 229). This lawsuit followed.

Knibbs’ widow Melissa Knibbs filed her original Complaint on April 16, 2019. (Doc.

No. 1). Plaintiff filed her Amended Complaint on May 2, 2019, (Doc. No. 5), alleging seven

causes of action: (1) a so-called Monell claim under 42 U.S.C. § 1983 (“Policy, Custom or Usage

of Macon County Sheriff”); (2) claim for a violation of Plaintiff’s Second, Fourth, and

Fourteenth Amendment rights, under 42 U.S.C. § 1983, against Defendant Momphard; (3)

wrongful death against Defendant Robert Holland, the Macon County Sheriff, pursuant to North

Carolina state law; (4) wrongful death against Defendant Momphard pursuant to North Carolina

state law; (5) a violation of the North Carolina Constitution against Defendant Holland in his

official capacity; (6) a violation of the North Carolina Constitution against Defendant

Momphard; and (7) punitive damages under North Carolina law against Defendant Momphard in

his individual capacity. Plaintiff has also named as Defendants two surety bond companies,

Western Surety Company and the Ohio Casualty Insurance Company. Defendants filed their

Answer to the Amended Complaint on July 5, 2019, denying liability and asserting various

affirmative defenses. (Doc. No. 14).

On July 29, 2019, the Court entered a Pretrial Order and Case Management Plan (Doc.

No. 16), which was modified on October 24, 2019, (Doc. No. 21) and further amended on

January 21, 2020. (Doc. No. 24). Defendants timely filed their summary judgment motion on

May 21, 2020. (Doc. No. 26). On June 18, 2020, Plaintiff filed a response in opposition to the

summary judgment motion. (Doc. No. 32). Defendants filed a Reply on July 9, 2020. (Doc. No.

36). Finally, this Court held a hearing on the summary judgment motion on August 25, 2020.

Thus, this matter is ripe for disposition.

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B. UNDISPUTED FACTS

On Sunday, April 29, 2018, at around 11:44 p.m., Shelton Freeman called the Macon County

Sheriff's Office (“MCSO”) regarding his neighbor Michael Knibbs and stated that Knibbs had

placed boards with nails in them across their shared driveway, preventing Freeman’s guests from

leaving his house. (Doc. No. 5 at ¶¶ 18, 29; Freeman Dep., pp. 18, 36–37). Knibbs placed the

boards in the shared driveway himself. (Doc. No. 5 at ¶ 28). Knibbs told his wife Plaintiff

Melissa Knibbs and his daughter Megan Knibbs that he had placed the boards in the shared drive

to slow down people driving to the home of the neighbor, Shelton Freeman, and “to keep them

from going back and forth all night.” (Melissa Knibbs, Dep., p. 94; Megan Knibbs Dep., pp. 36–

37). Megan Knibbs testified that although the neighbors and their guests going up and down the

road all night was a frequent issue, the Knibbs family never called and reported this to law

enforcement. (Id., p. 38).

On the night of the shooting, Freeman saw the boards with nails in the road and reported to

the Macon County 911 dispatcher that they could “definitely pop a tire.” (Freeman Dep., p. 37).

Even though the boards were in their shared driveway, they were in front of the Knibbs’ house,

and Freeman did not want to go down there and move the boards himself. He was scared of

Knibbs because he was sometimes intoxicated and “always aggressive, verbally anyways.” He

decided the best course of action was to call the police. (Id., pp. 38–39). The Harris Regional

Hospital of Medical Examiner’s Autopsy and Toxicology Report dated 8/17/2018 confirmed

Knibbs was intoxicated at the time of the shooting.1

Before the evening that Knibbs placed the boards with nails in the shared driveway, Freeman

1 This Report is included in the SBI file and is filed under Seal.

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had interacted with Knibbs on only two occasions even though Freeman had been Knibbs’

neighbor for approximately eight months. (Freeman Dep., pp. 4, 19–20). Regarding the first

interaction with Knibbs, which took place about one month before the shooting, Freeman had

gone outside to take his dog off the lead and Knibbs scared Freeman walking up the driveway.

Freeman’s dog started barking and Knibbs told Freeman to make the dog be quiet. Freeman

responded that “he couldn’t help it, the dog barks at everything.” Knibbs then said, “Well, shut

your dog up or I’m going to shut your dog up.” Freeman felt this was a threat to his dog, and he

went inside and left it at that. (Id., pp. 24–25). The only other interaction Freeman ever had with

Knibbs occurred when Knibbs came over one night to apologize for the earlier interaction about

the dog. Freeman believed Knibbs was trying to get into his house to see what he and his

roommates were doing, and he was very persistent about trying to get into Freeman’s house, but

Knibbs wasn’t allowed to come in. (Id., pp. 27–28).

There is no evidence that Freeman or his roommates ever acted aggressively toward Knibbs

or his family, ever came onto their property, ever approached the Knibbs residence during the

daytime or nighttime, or ever had any incidents, arguments, or disagreements with the Knibbs

family. According to Plaintiff, the only issue with Freeman and his roommates was a “little”

problem related to the Knibbs’ dog. (Doc. No. 5; Melissa Knibbs Dep. at pp. 91–92).

When Freeman called 911 to report the boards in the shared driveway, it was not an

emergency call for service. (Doc. No. 5 at ¶¶ 31, 37, 46). Because it was not an emergency call,

Deputy Momphard did not have his blue lights activated when he responded. (Momphard Dep.

at p. 163; Holland Dep. at pp. 71–72). When Deputy Anthony Momphard responded to the call

from Freeman to 911, he was in uniform and driving a marked MCSO vehicle. (Doc. No. 5 at ¶¶

35, 37; Momphard Dep. at pp. 270, 274). His uniform included a tactical vest, a belt, gun,

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handcuffs, “everything that a law enforcement officer has.” (Momphard Dep. at p. 274). His

marked patrol car had a light bar on top that could be seen in the dark, regardless of whether the

blue lights are flashing. (Id. at pp. 274–75).

Deputy Momphard arrived at around 11:55 p.m. after being dispatched at 11:47 p.m.

(Doc. No. 5 at ¶¶ 29, 34). He parked his marked police car in the shared dirt driveway that was

used to access the Knibbs and Freeman residences. (Id. at ¶ 35). Deputy Momphard did not

drive over the boards placed in the road by Knibbs because there were nails sticking up that

could have popped a tire. (Momphard Dep. at pp. 86, 90–93, 95).

Deputy Momphard first went to the Knibbs residence by mistake, believing it was the

location of the 911 caller, Freeman. As he approached the door he believed to be the main

entrance, he announced “Sheriff’s Office” two or three times. (Id. at p. 97). He did not quite

make it to the door because he realized as he got closer that there were no steps so this first door

he was approaching would not logically be the entrance the occupants would use. (Id. at p. 101).

Realizing that the first door with no entryway steps was not likely the commonly used point of

entry, Deputy Momphard approached a second door, and he noticed lights were on in the house.

(Id. at pp. 97–98). After the events of that evening, it was determined that the second door

Deputy Momphard approached was the back door, but he did not know that at the time. (Id.).

There are three doorways to Knibbs residence, and because of the layout, Deputy Momphard was

confused about which door would be considered the front door or the commonly used entrance.

(Id. at p. 140).

At the second door, Deputy Momphard knocked on the door and announced loudly,

“Sheriff’s Office,” but no one responded. (Id. at p. 98). When he received no response, Deputy

Momphard thought dispatch had given him an incorrect address for the call. (Id., p. 107–08). At

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that point, he also heard voices coming from the neighbor’s house, and he walked up the

driveway towards the neighbor’s house and spoke with the neighbor, Freeman. (Id., p. 110). As

Deputy Momphard and Freeman were speaking, Freeman noticed lights at the Knibbs residence

come back on. He pointed this out to Deputy Momphard, and Momphard turned around and saw

the lights on. Freeman stated to Momphard, “I told you they are awake.” (Freeman Dep., p. 50).

After discussing the matter with Freeman, who provided Deputy Momphard with

additional information about the boards and the fact that Knibbs had placed them in the

driveway, and seeing the lights come on in the Knibbs house, Deputy Momphard walked back to

the Knibbs residence to continue his investigation by attempting to speak with Knibbs. (Id., p.

111).

Deputy Momphard returned to the Knibbs residence and approached the front porch, on

which yet another door (third door) was located. (Doc. No. 5 at ¶ 78; Momphard Dep., pp. 86–

87, 110–14, 120, 281). The neighbor, Freeman, had informed Deputy Momphard that the door

on the front porch (the third door) was the door typically used by the Knibbs family to enter the

house. (Momphard Dep., p. 159). As he approached the third door, Deputy Momphard saw

lights turn off, and this caused him to believe someone was inside. (Id., p. 111). He announced

“Sheriff’s Office” several times. (Id., pp. 138–40, 102). Freeman, who was still outside, heard

Deputy Momphard knock loudly on the door when he was on the Knibbs’ porch, and also heard

Momphard loudly announce “Sheriff’s Office.” “He definitely announced himself” and did so in

a “loud voice.” (Freeman Dep., p. 53). Momphard announced “Sherriff’s Office” so loudly that

Freeman believes his roommates heard this, too. (Id.).

On the evening of the incident, in addition to Knibbs, there were four other family members

in the residence including Knibbs’ wife, Plaintiff Melissa Knibbs; their minor son, S.K.; their

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adult daughter, Megan Knibbs; and Megan Knibbs’ infant son. (Melissa Knibbs Dep., pp. 36–

37). Megan Knibbs did not hear anything that evening that preceded the first or second shot by

Deputy Momphard. (Megan Knibbs Dep., p. 23). The minor son S.K. also did not hear anything

that preceded shots being fired. (S.K. Dep., pp. 11–12).

Knibbs and Plaintiff were in bed as Deputy Momphard re-approached their residence.

They were both awake, and they both heard someone outside. Their bedroom window and bed

were adjacent to the front porch steps where Deputy Momphard announced his presence as a

deputy sheriff. They were both on the side of the bed closest to the porch where Deputy

Momphard was located. (Melissa Knibbs Dep., pp. 44–47).

Plaintiff heard Deputy Momphard announce himself as a Sheriff’s Deputy. (Id., p. 46).

Knibbs also heard Deputy Momphard announce himself as a Deputy Sheriff and responded by

picking up a shotgun and stating to Plaintiff, “Anyone could say they are a deputy.” (Id., p. 47–

48). Knibbs then exited the bedroom, where Plaintiff remained, and racked a shell into the

chamber of his shotgun. Plaintiff heard her husband rack a shell into the chamber of the shotgun.

(Id., pp. 48–49).

After Knibbs exited the bedroom and racked a shell into the chamber of his shotgun,

Plaintiff heard Deputy Momphard state, at least once, “Put your weapon down.” (Id., pp. 49–50).

Neighbor Shelton Freeman also heard Deputy Momphard yelling loudly, “Put it down!” at least

two to three times before he heard shots being fired. (Freeman Dep., pp. 54–55). He also saw

Knibbs’ head or shadow before shots were fired. (Id., pp. 62-64, 79–82).

Deputy Momphard was on the top step, stepping onto the porch that led to the front door

when he heard the rack of a shotgun. Knibbs racked the shotgun as soon as Deputy Momphard

announced “Sheriff’s Office” for the second time. (Momphard Dep., p. 178). Deputy

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Momphard yelled, “Drop it” three times, and moved to the right edge of the doorway. He drew

his service weapon in his right hand and also removed his flashlight from his duty belt, holding it

in his left hand. He made the decision to move to his left, across the living room window, in an

effort to get off of the porch and seek cover. (Id., pp. 123–25, 140, 177–79). Deputy Momphard

did not intend to engage Knibbs; he just wanted to get off the porch and find cover. (Id., pp. 141,

211–12). Deputy Momphard believed he would have been shot and killed staying in front of the

doorway. He also believed passing by the window was a “fatal frontal,” but he thought it was

more likely he could get off the porch more quickly by passing by the window and running off

the porch. (Id., pp. 141, 210–11).

Deputy Momphard turned on his flashlight as he crossed the window and illuminated

Knibbs, who was standing in the window holding a shotgun pointed at Deputy Momphard’s face

or upper chest area. Knibbs had not dropped his shotgun as he had been ordered to do.

(Momphard Dep., pp. 187–88). According to Deputy Momphard, he and Knibbs were so close

that they could have touched had it not been for the window. (Id., pp. 186). Momphard fired his

weapon six times. (Id., pp. 179–83). Knibbs’ wounds were fatal, and he died at the scene. (Ex.

7, Attachment B, p. 2). A loaded, 12-gauge shotgun was found lying on a rug in front of the

front door, near the living room window where Deputy Momphard had been standing on the

other side. The shotgun was loaded with four rounds in the magazine and one in the chamber.

Defendants contend that Deputy Momphard’s use of deadly force was consistent with the

MCSO use of force policy. Deputy Momphard was cleared of any criminal wrongdoing related

to the Knibbs incident by the North Carolina State Bureau of Investigation and the Macon

County district attorney. He also was cleared of any policy violations by the MCSO based on the

subsequent administrative investigation conducted by MCSO Internal Affairs. (Ex. 12 to

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Momphard Dep., p. 2).

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for

its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving

party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.

The nonmoving party may not rely upon mere allegations or denials of allegations in his

pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving party must

present sufficient evidence from which “a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert Cty., Md.,

48 F.3d 810, 818 (4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658,

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2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

III. DISCUSSION

A. PLAINTIFF’S SECTION 1983 CLAIMS AGAINST DEFENDANTS IN THEIR

INDIVIDUAL CAPACITIES

1. Qualified Immunity

Plaintiff brings various constitutional claims against Defendants in their individual

capacities through Section 1983, including claims for a violation of Plaintiff’s Second, Fourth

and Fourteenth Amendment rights.2 (Doc. No. 5 at ¶ 112). For the following reasons, the Court

finds that Plaintiff’s Section 1983 claims fail because Defendants are entitled to qualified

immunity.

a. Fourth Amendment Claim

First, in Counts II and VI, respectively, Plaintiff alleges that Deputy Momphard subjected

Knibbs to excessive force in violation of the Fourth Amendment to the United States Constitution

and Article I of the North Carolina Constitution, Sections 1, 19, 21, 23, and 30. (Doc. No. 5 at ¶¶

114, 152).3 Excessive force claims against law enforcement officers are analyzed under the Fourth

2 Plaintiff also purports to bring the Section 1983 claims against Defendant Momphard in his

official capacity as well. Official capacity suits are not suits against the person of the defendant,

but rather, are suits against the office or entity of which the defendant is an agent. See Kentucky

v. Graham, 473 U.S. 159, 165 (1985); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989). An official capacity claim is, therefore, actually nothing more than a claim against the

governmental entity by whom the official is employed. Kentucky, 473 U.S. at 165–67 (noting

that official capacity suits “generally represent only another way of pleading an action against an

entity of which an officer is an agent.”). Thus, the Section 1983 claims against Deputy

Momphard in his official capacity are dismissed.

3 The North Carolina Constitution is co-extensive with the United States Constitution on the

issue of excessive force and the due process and equal protection clauses of the U.S.

Constitution. See Little v. Smith, 114 F. Supp. 2d 437, 445 (W.D.N.C. 2000).

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Amendment’s reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The

question under the totality of the circumstances is “whether a reasonable officer in the same

circumstances would have concluded that a threat existed justifying the particular use of force.”

Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). In determining whether a reasonable

officer on the scene would have used force, courts are to consider “the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.

at 396. An officer may reasonably “use deadly force when the officer has ‘probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or others.’”

Anderson, 247 F.3d at 129 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). “[T]he

‘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.” Graham, 490 U.S. at 396.

Courts must consider “that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving.” Id. at 397. Courts are also

instructed to focus “on the circumstances at the moment force was used and on the fact that officers

on the beat are not afforded the luxury of armchair reflection.” Elliott v. Leavitt, 99 F.3d 640, 642

(4th Cir. 1996).

Qualified immunity protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Officials who are sued for civil

damages are entitled to qualified immunity unless (1) the complaint sufficiently alleges a

violation of a constitutional right, and (2) the right at issue, defined at the appropriate level of

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generality, was “clearly established” at the time of the alleged misconduct. Doe ex rel. Johnson

v.S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010).

A constitutional right is clearly established where “its contours [are] sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). “[I]f there is a legitimate

question as to whether an official’s conduct constitutes a constitutional violation, the official is

entitled to qualified immunity.” Martin v. Saint Mary’s Dep’t of Soc. Servs., 346 F.3d 502, 505

(4th Cir. 2003) (internal quotation marks omitted). It is within the court’s discretion to decide

“which of the two prongs of the qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.” Doe ex rel. Johnson, 597 F.3d at 169 (quoting

Pearson, 555 U.S. at 236).

Here, based on the information he had available to him at the time and the totality of the

circumstances, it was reasonable for Deputy Momphard to believe that his life was in serious

danger based on Knibbs’ actions. Momphard re-approached the Knibbs’ residence after

speaking with Freeman, who had reported that Knibbs had placed boards with nails in them over

their shared driveway.4 Momphard loudly announced his presence as “Sheriff’s Office.”

4 North Carolina law criminalizes willful damage to personal property. See N.C. GEN. STAT.

§14-160. It is also unlawful in N.C. to attempt to commit a misdemeanor or felony. See N.C.

GEN. STAT. § 14-2.5. Deputy Momphard’s sworn testimony reflects he had reasonable suspicion

that Knibbs’ act of placing the boards in the road may have constituted willful and wanton

damage to property or attempt to damage property. (Momphard Dep., pp. 87–92). Thus, the

Court agrees with Defendant that Deputy Momphard did have a reasonable suspicion that a

crime had been committed. Plaintiff describes the action of placing the board across the road as

merely a civil property dispute, and Plaintiff suggests that Deputy Momphard’s act of going to

the Knibbs’ property to investigate was therefore not appropriate and certainly did not warrant

the resulting use of deadly force. Although the Court agrees with Plaintiff that placing boards

with nails over a shared driveway does not constitute a dangerous crime, this does not mean that

Deputy Momphard’s subsequent use of deadly force was unreasonable. Rather, application of

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Immediately after his second announcement of “Sheriff’s Office,” he heard the distinct sound of

a shotgun being racked just on the other side of the wall. He then shouted three times “drop it,”

but nothing indicated the person in possession of the firearm had complied. In his efforts to

escape and seek cover, he drew his service weapon, took out his flashlight, crossed in front of the

window to get off the porch, and shined the flashlight in as he did so. Deputy Momphard

asserted that he believed he would have been shot and killed if he stayed in front of the doorway.

He also asserted that he believed that while passing by the window was a “fatal frontal,” it was

more likely that he could get off the porch more rapidly by quickly passing by the window and

running off the porch. Additionally, Deputy Momphard’s efforts to seek cover when confronted

by Knibbs’ display of deadly force was consistent with his law enforcement officer training.

Thus, it is undisputed that Knibbs was armed with a shotgun and he racked a shotgun

shell into the chamber just moments before he and Deputy Momphard were standing feet away

from each other, face-face, with only a window between them. Deputy Momphard asserts that

he saw Knibbs pointing the shotgun directly at his face or upper chest. Here, for the Court to

find that Deputy Momphard is not entitled to qualified immunity under the undisputed facts of

this case, this Court would have to hold that it is clearly established that use of deadly force was

not allowed. Again, the undisputed facts show that Deputy Momphard was standing outside the

window of a house in the dark after investigating an alleged property crime by the home owner,

Knibbs. He twice announced his presence as “Sheriff’s Office,” he heard a shotgun shell being

racked into the chamber, and he ordered Knibbs to drop the gun, but Knibbs refused to drop the

the other relevant Graham factors—including the fact that Knibbs had racked his shotgun and

was ignoring Momphard’s commands to put the gun down right before he was shot—leads to the

conclusion that Deputy Momphard’s subsequent use of deadly force was reasonable.

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gun. Deputy Momphard then perceived that he saw a shotgun pointed directly at his face or

upper chest from just feet away. Afraid that his life was in danger, Deputy Momphard shot and

killed Knibbs. Under these facts, it was not clearly established that deadly force could not be

used. In other words, there is certainly no bright-line rule that would hold that a Fourth

Amendment constitutional violation occurred under the circumstances of this shooting. Even in

deadly force cases much less compelling than this, the Court has ruled in favor of officers as a

matter of law. See, e.g., Sigman v. Chapel Hill, 161 F.3d 782, 786 (4th Cir. 1998) (question of

fact did not exist as to the reasonableness of the officers’ perceptions despite evidence that

Sigman was not armed or exhibiting threatening behavior at the time he was shot); Slattery v.

Rizzo, 939 F.2d 213, 216 (4th Cir. 1991) (reversing the denial of the officers’ summary

judgment motion despite the fact that it was determined, after the plaintiff was shot in the face,

that the plaintiff was not, as the officers believed, armed with a weapon). The Constitution is not

blind to “the fact that police officers are often forced to make split-second judgments,” which is

exactly what Deputy Momphard was forced to do that when confronted by Knibbs aiming a

shotgun at his face or upper chest. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). As

the Fourth Circuit has instructed:

No citizen can fairly expect to draw a gun on police without risking tragic

consequences. And no court can expect any human being to remain passive in the

face of an active threat on his or her life ... the Fourth Amendment does not

require omniscience. Before employing deadly force, police must have sound

reason to believe that the suspect poses a serious threat to their safety or the safety

of others. Officers need not be absolutely sure, however, of the nature of the

threat or the suspect's intent to cause them harm—the Constitution does not

require that certitude precede the act of self-protection.

Lee v. Bevington, 647 F. App'x 275, 283 (4th Cir. 2016).

In opposing Defendants’ summary judgment motion, Plaintiff alleges that Defendants are

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ignoring a key, disputed material fact in this case—that is, whether Mr. Knibbs was actually

pointing his firearm at Deputy Momphard when Momphard shot him. Plaintiff’s proposed

expert, Dr. Arden, a forensic pathologist, has submitted an expert report, opining as follows:

It is my opinion, more likely than not, based upon my education, training,

experience, and review of the evidence in the case, with a reasonable degree of

medical certainty, Mr. Knibbs was holding his shotgun left-handed with his right

hand and arm across his chest in a safe stance with the barrel pointed upward, and

the muzzle of the shotgun was not aimed at Mr. Momphard.

(Ex. 11, p. 13). Plaintiff contends that the physical evidence wholly contradicts Deputy

Momphard’s imagined version of the events—that Knibbs was standing in a right-handed

shooting stance, with the barrel of his shotgun pointed at the window. Dr. Arden has opined that

if Knibbs were in a:

. . .right-handed shooting stance aiming the shotgun toward the window, then his

left side would have been facing the window, and thus the bullets fired by Mr.

Momphard would have struck him in his left side or left arm, and would have

followed trajectories predominantly to his right. However, his entrance wounds

were on his right, with trajectories to his left, the exact opposite of what would

have obtained had he been in a right-handed shooting stance. Therefore, the

testimony and demonstration by Mr. Momphard that Mr. Knibbs was in a right-

handed shooting stance is inconsistent with the forensic evidence.

(Ex. 11, p. 4). Plaintiff, therefore, contends that Deputy Momphard wrongly perceived that

Knibbs was in a right-handed shooting stance and that Knibbs was pointing the gun at him.

Plaintiff argues that the testimony of Plaintiff’s experts creates a material issue of fact as to

whether Deputy Momphard reasonably perceived that his life was in danger. Plaintiff’s experts

have concluded that Knibbs was not pointing the gun directly at Deputy Momphard when

Momphard shot and killed him.

Plaintiff also offers the testimony of expert witness Hal Sherman, an expert in crime

scene investigation analysis, who has opined that Deputy Momphard’s descriptions of where he

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was standing on the porch and how close he was to the window are inconsistent with the

evidence, which shows that the distance between Knibbs and Momphard was likely more than

six feet.

To rebut Plaintiff’s proposed expert witness Dr. Arden, Defendant Momphard has

submitted his own expert Rod Englert, a professional crime scene reconstructionist, who has

opined that, based on his review of all of the above, the physical and forensic evidence, and his

training and experience, “at the time Mr. Knibbs was shot, he was in a left-hand shooting stance

with the shotgun held at his chest level, the barrel pointed outward/horizontal, and canted slightly

left/counter clockwise. The evidence does not support Mr. Knibbs being in a safety position

with the barrel pointed at the ceiling at the time he was shot.”

The Court disagrees with Plaintiff that Plaintiff’s expert witnesses’ testimony has created

a genuine issue of disputed fact precluding summary judgment. First, the possibility of

confusion or misperception by an officer who then applies deadly force in part based on his

confusion or misperception need not signify a difference of triable fact. “What matters is

whether the officers acted reasonably upon the [information] available to them and whether they

undertook an objectively reasonable investigation with respect to that information in light of the

exigent circumstances they faced.” Gooden v. Howard Cty., 954 F.2d 960, 965 (4th Cir. 1992)

(en banc) (emphasis added). In other words, even assuming that Deputy Momphard

misperceived that Knibbs’ gun was pointed directly at him, and assuming that, in fact, the gun

was pointed more toward the ceiling, Deputy Momphard did not have to detect that Knibbs was

actually aiming and pulling the trigger before Deputy Momphard used deadly force to protect his

own life. Accord McLenagan v. Karnes, 27 F.3d 1002, 1007–08 (4th Cir. 1994) (“We will not

second-guess the split-second judgment of a trained police officer merely because that judgment

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turns out to be mistaken, particularly where inaction could have resulted in death or serious

injury to the officer and others.”); Sigman, 161 F.3d at 787–88 (“Notwithstanding the possibility

of a dispute about whether a knife was actually in Sigman's hand at the moment of the shooting,

Officer Riddle . . . acted on the perception that Sigman had a knife in his hand. Where an officer

is faced with a split-second decision in the context of a volatile atmosphere about how to restrain

a suspect who is dangerous, who has been recently—and potentially still is—armed, and who is

coming towards the officer despite officers' commands to halt, we conclude that the officer's

decision to fire is not unreasonable. Accordingly, we reject the argument that a factual dispute

about whether Sigman still had his knife at the moment of shooting is material to the question of

whether Officer Riddle is entitled to the protections of qualified immunity in the particular

circumstances of this case.”).

In addition to Deputy Momphard’s observation of Knibbs pointing a loaded shotgun at

him, the undisputed facts show the following: (1) Knibbs was armed with a loaded shotgun in

close proximity to Deputy Momphard; (2) Knibbs had gotten out of bed and taken the shotgun

with him after hearing Deputy Momphard announce his presence; (3) Deputy Momphard heard

Knibbs rack a shotgun shell into the shotgun after Deputy Momphard had twice loudly

announced his presence as a Sheriff’s Deputy; (4) Plaintiff heard Knibbs rack a shell into the

shotgun after they both heard Deputy Momphard announce his presence as a law enforcement

officer; (5) Plaintiff (who was in the bedroom of the house) and the neighbor, Freeman (who was

positioned down the roadway away from the Knibbs’ house) both heard Deputy Momphard

loudly announce his presence; (6) Deputy Momphard was in uniform and readily recognizable as

a law enforcement officer; (7) Knibbs refused to drop the shotgun despite repeated commands by

Deputy Momphard that he do so; (8) Plaintiff and the neighbor, Freeman, both heard Deputy

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Momphard ordering Knibbs to drop the shotgun; and (9) due to the configuration of the porch,

Deputy Momphard was in a position where he had no cover to protect himself if Knibbs were to

shoot at him. Any objective officer faced with these facts would have sound reason to believe

that Knibbs posed a threat of death or serious physical harm to him. See Lee v. City of

Richmond, Va., 100 F. Supp. 3d 528, 542 (E.D. Va. 2015) (quoting Elliott v. Leavitt, 99 F.3d

640, 644 (4th Cir. 1996)) (“[T]he Fourth Amendment does not require omniscience. Before

employing deadly force, police must have sound reason to believe that the suspect poses a

serious threat to their safety or the safety of others. Officers need not be absolutely sure,

however, of the nature of the threat or the suspect's intent to cause them harm—the Constitution

does not require that certitude precede the act of self protection.”); see also Anderson v. Russell,

247 F.3d at 131 (“The evidence establishes that immediately before Russell fired, Anderson was

reaching toward what Russell believed to be a gun. Any reasonable officer in Russell's position

would have imminently feared for his safety and the safety of others. This Circuit has

consistently held that an officer does not have to wait until a gun is pointed at the officer before

the officer is entitled to take action.”) (emphasis added). Thus, based on the undisputed facts,

Deputy Momphard is entitled to qualified immunity as to Plaintiff’s Fourth Amendment

excessive force claim.5

b. Second Amendment Claim

Plaintiff also purports to bring a Second Amendment claim against Deputy Momphard by

alleging that he deprived Knibbs of his right to bear arms in his own home. (Doc. No. 5 at ¶

115). The right to bear arms under the Second Amendment applies to both the federal and state

5 Although the Court is basing its dismissal on qualified immunity, the Court’s analysis also

leads to the conclusion that there was no Fourth Amendment violation in the first instance.

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governments. See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of

Chicago, Ill., 561 U.S. 742, 749–50 (2010). Very few cases address the issue presented by

Plaintiff’s Second Amendment claim. However, those that do hold that an individual’s Second

Amendment right to bear arms does not trump an officer’s right to self-preservation. See

Schaefer v. Whitted, 121 F. Supp. 3d 701, 711 (W.D. Tex. 2015) (holding that the Second

Amendment right to bear arms does not outweigh officer’s right to safely conduct an

investigation of a crime at an individual’s home and noting that this balance must be struck under

the Fourth Amendment’s objective reasonableness standard and Graham v. Conner); Heyward v.

Tyner, No. 217CV01545DCNMGB, 2017 WL 9673667, at **6–7 (D.S.C. Nov. 29, 2017), report

and recommendation adopted, No. 2:17-01545-DCN, 2018 WL 1391434, at *7 (D.S.C. Mar. 20,

2018) (declining to “transform an excessive force claim into a novel Second Amendment claim”

because the officer’s conduct has been recast as being caused by the plaintiff’s exercise of his

right to bear arms); Howe v. City of Enter., No. 1:15CV113-JA-SRW, 2018 WL 8545947, at

**33–34 (M.D. Ala. Sept. 17, 2018), report and recommendation adopted sub nom., Howe v.

City of Enter., Al., No. 1:15CV113-ECM, 2019 WL 8723922 (M.D. Ala. Mar. 12, 2019) (same);

Spry v. West Va., No. 2:16cv01785, 2017 WL 440733, at *7 (S.D. W. Va. Feb. 1, 2017) (where

Plaintiff’s Second Amendment claim is based on the police shooting itself, the Second

Amendment does not give rise to a cause of action; rather, the Fourth Amendment provides

appropriate source of claim and analysis).

To defeat qualified immunity, Plaintiff has the burden of demonstrating the Second

Amendment right Deputy Momphard is alleged to have violated is “clearly established” in a

particularized sense, such that “the contours of the right [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” See Anderson v. Creighton,

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483 U.S. 635, 640 (1987). Here, there is no clearly established law in the Fourth Circuit, or

apparently elsewhere, that would even put Deputy Momphard on notice that his actions

implicated the Second Amendment. Deputy Momphard had reasonable suspicion to believe a

crime may have been committed and reasonable suspicion to believe that Knibbs was the person

who committed the crime. The boards with nails in the shared driveway could have caused

property damage and were preventing Freeman’s guests from departing. Further, Deputy

Momphard was lawfully present on Knibbs’ front porch, seeking to investigate Knibbs’ criminal

activity of placing boards with nails in the shared driveway. See United States v. Miller, No. 18-

4796, 2020 WL 1873332, at *6 (4th Cir. Apr. 15, 2020) (“Although the knock-and-talk doctrine

is sometimes framed as a right to approach the home by the front path, or knock on a front door,

we have made clear that the implicit license is broader than that, and allows an officer to go

elsewhere when circumstances reasonably indicate that the officer might find the homeowner

elsewhere on the property.”) (internal cites and punctuation omitted). The shooting at issue

resulted when, in the course of his investigation, Deputy Momphard perceived that Knibbs

pointed a shotgun directly at him after just racking the gun, and after ignoring Momphard’s clear

commands to put the gun down. Thus, Deputy Momphard is entitled to qualified immunity

regarding Plaintiff’s Second Amendment claim.6

c. Fourteenth Amendment Claim

As noted, Plaintiff also purports to bring a Fourteenth Amendment substantive due

process claim based Deputy Momphard’s alleged use of excessive force. It is well settled that

6 Plaintiff has not responded to the merits of Defendants’ Motion for Summary Judgment and

Memorandum of Law regarding her Second Amendment claims. Thus, it appears Plaintiff has

abandoned her Second Amendment claim.

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“claims that law enforcement officers have used excessive force—deadly or not—in the course

of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach.” See Graham v. Connor, 490 U.S. at 395. Plaintiff’s claim of use of

excessive force must be analyzed under the reasonableness standard of the Fourth Amendment

and not under the Fourteenth Amendment’s Due Process Clause. Therefore, Plaintiff’s

Fourteenth Amendment claim fails as a matter of law.

B. PLAINTIFF’S SECTION 1983 CLAIMS AGAINST DEFENDANT SHERIFF

HOLLAND

Plaintiff also seeks to assert Section 1983 claims against Sheriff Holland in his official

capacity under multiple theories, including respondeat superior, a Monell theory of purported

unlawful policy, custom or usage, and supervisory liability for failure to supervise, discipline and

train, as well as a policy of hiring officers who were “substandard.” (Doc. No. 5 at ¶¶ 97–111).

To support the Monell claim, Plaintiff offers the expert testimony of Jon Blum, an expert in law

enforcement training, who has opined that Deputy Momphard was unsuitable for the position in

which he was hired; that the Macon County Sheriff’s Office failed to properly supervise, train,

and evaluate Momphard’s on-the-job performance; that Momphard failed to conform with law

enforcement industry standards and his basic law enforcement training (“BLET”); and

Momphard’s various failures were reckless and created a false sense of urgency that resulted in

Knibbs’ death. Because Deputy Momphard enjoys qualified immunity on Plaintiff’s excessive

force claim, it follows that there can be no liability for Sheriff Holland as to any of Plaintiff’s

theories. See, e.g., Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996) (“In the

absence of any underlying use of excessive force against [the individual officer], liability cannot

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be placed on either the non-shooting officers, a supervisor, or the City.”). Thus, Defendant

Sheriff Holland is entitled to summary judgment as well.

C. PLAINTIFF’S STATE LAW TORT CLAIMS

In Counts III and IV, Plaintiff seeks to assert state law wrongful death claims against

Sheriff Holland in his official capacity and against Deputy Momphard in his individual and

official capacity. First, as to Plaintiff’s claims against Momphard in his individual capacity, as a

public official Momphard enjoys absolute immunity from personal liability for discretionary acts

done without corruption or malice. Schlossberg v. Goins, 141 N.C. App. 436, 445–46, 540

S.E.2d 49, 56 (2000); Price v. Davis, 132 N.C. App. 556, 562, 512 S.E.2d 783, 787 (1999);

Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997). For purposes of the public officer’s

immunity analysis, “[a] defendant acts with malice when he wantonly does that which a man of

reasonable intelligence would know to be contrary to his duty and which he intends to be

prejudicial or injurious to another.” Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890–91

(1984). Further, courts must presume “that a public official in the performance of his official

duties ‘acts fairly, impartially, and in good faith and in the exercise of sound judgment or

discretion, for the purpose of promoting the public good and protecting the public interest.’”

Lunsford v. Renn, 207 N.C. App. 298, 310, 700 S.E. 2d 94, 101 (2010) (quoting Greene v. Town

of Valdese, 306 N.C. 79, 82, 291 S.E.2d 630, 632 (1982)). The presumption can only be

rebutted by affirmative evidence and “[e]very reasonable intendment will be made in support of

the presumption.” Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). “[T]he

burden is on [plaintiff] to overcome the presumption by competent and substantial evidence.” In

re Annexation Ordinance No. 300-X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981). Here, the

record evidence reflects nothing to indicate malice or corruption on the part of Deputy

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Momphard, and he is entitled to public official immunity regarding the wrongful death claim.

Next, as to Plaintiff’s state law tort claims against Defendants in their official capacities,

“official capacity” suits are merely another way of pleading an action against the governmental

entity of which the individual is an agent. Moore v. City of Creedmoor, 345 N.C. 356, 367, 481

S.E.2d 14, 21 (1997). “The doctrine of sovereign immunity bars actions against public officials

sued in their official capacities. Sheriffs and deputy sheriffs are considered public officials for

purposes of sovereign immunity.” Phillips v. Gray, 163 N.C. App. 52, 56–57, 592 S.E.2d 229,

232 (2004). Governmental officials are entitled to governmental immunity unless they waive it

through the purchase of insurance; however, any waiver is limited solely to the extent of

insurance coverage. Satorre v. New Hanover Cty. Bd. of Comm’rs, 165 N.C. App. 173, 176, 598

S.E.2d 142, 144 (2004). “[If] the insurance policy does not indemnify the defendant against the

[] acts alleged in plaintiff’s complaint, defendant has not waived its sovereign immunity.” Doe

v. Jenkins, 144 N.C. App. 131, 135, 547 S.E.2d 124, 127 (2001).

Here, the acts complained of occurred in April 2018. During that time, Macon County

had one insurance policy issued by U.S. Specialty Insurance Company risk policy number

PKG80210750, which was in effect for the County as well as the Sheriff and his employees.

(See Ex. 11, Aff. of Derek Roland). The North Carolina Immunity Non-Waiver Endorsement to

the policy does not cover any claim or suit as to which a covered person is entitled to sovereign

immunity or governmental immunity under N.C. law. The Endorsement specifically provides

the policy of insurance “shall not be deemed a waiver of any statutory immunities by or on

behalf of any insured, nor of any statutory limits of the monetary amount of liability applicable

to any insured were this policy in effect.” (See Ex. 11, Aff. of Derek Roland and attached

copies). This language has been repeatedly held to preserve governmental immunity. See, e.g.,

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Evans v. Chalmers, 703 F.3d 636, 656 (4th Cir. 2012).

D. PLAINTIFF’S STATUTORY CLAIM AGAINST DEFENDANTS

WESTERN SURETY COMPANY AND THE OHIO SURETY COMPANY

Plaintiff has included two sureties in this action alleging these defendants are the sureties

on the official bond of Defendant Holland as Sheriff of Macon County pursuant to N.C. GEN.

STAT. § 162-8 and § 58-76-5. “Where ‘plaintiff does not survive summary judgment on a

common law tort claim, it follows that plaintiff's statutory bond claim must also fail.’” Nance v.

Ingram, No. 7:14cv9, 2015 WL 5719590, at *8 (E.D.N.C. Sept. 29, 2015) (quoting Elliot v.

Rollins, No., 5:11cv693, 2013 WL 5460193, at *2 (E.D.N.C. Sept. 30, 2013)). Because Plaintiff

has failed to produce evidence sufficient to support a tort claim against Defendants, Plaintiff’s

claim against the sheriff's bond must fail.

E. PLAINTIFF’S CLAIMS UNDER THE NORTH CAROLINA CONSTITUTION

Finally, as to Plaintiff’s claims for violations of the North Carolina constitution based on

excessive use of force, since the North Carolina Constitution is co-extensive with the

Constitution of the United States on the issue of excessive force, the state constitutional claim

must fail for precisely the same reasons. See McNeill v. Harnett Cty., 327 N.C. 552, 563, 398

S.E.2d 475, 481 (1990) (stating that the “law of the land” clause of the North Carolina

Constitution is synonymous with the due process clause of the Federal Constitution).

In addition, a plaintiff may pursue a direct action under the North Carolina Constitution

only where the plaintiff lacks a remedy under state law adequate to redress the alleged violation.7

7 To the extent that Plaintiff purports to assert any individual capacity claims under the

North Carolina Constitution, such claims are barred. Corum v. Univ. of North Carolina, 330

N.C. 761, 787–88, 413 S.E.2d 276, 292–93 (1992).

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Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 338, 678 S.E.2d 351, 354

(2009). “[T]o be considered adequate in redressing a constitutional wrong, a plaintiff must have

at least the opportunity to enter the courthouse doors and present his claim.” Copper ex rel.

Copper v. Denlinger, 363 N.C. 784, 789, 688 S.E.2d 426, 429 (2010). Plaintiff has available and

adequate remedies in the form of individual capacity claims such that Plaintiff's state

constitutional claim is barred. That these individual capacity claims are barred by public

officer’s immunity does not negate their adequacy as a remedy. DeBaun v. Kuszaj, 228 N.C.

App. 567 (2013) (unpublished); Rousselo v. Starling, 128 N.C. App. 439, 448-49, 495 S.E.2d

725, 731-32 (1998). Plaintiff also has available a remedy in the form of a statutory claim against

the sheriff’s bond. That Plaintiff likewise cannot prevail on this claim does not negate its

adequacy as aremedy. In sum, Defendants are entitled to summary judgment as to Plaintiff's

North Carolina constitutional claims.

IV. CONCLUSION

In sum, for the reasons stated herein, Defendants’ summary judgment motion is granted,

and all of Plaintiff's claims against all Defendants are hereby dismissed.

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment, (Doc. No. 26), is GRANTED.

2. This action is dismissed with prejudice.

3. The Clerk is respectfully instructed to terminate this action.

Signed: November 5, 2020

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Max O. Cogburn iC yg

United States District Judge Hag Me of

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