SHANNON N. JORDAN,
Plaintiff
v.
CIVIL SERVICE BOARD FOR THE CITY OF CHARLOTTE ET AL,
Defendants
Lesesne & Connette, by Louis L. Lesesne, Jr. and Richard L.
Hattendorf, for plaintiff-appellant.
Dozier, Miller, Pollard & Murphy, by W. Joseph Dozier, Jr.,
for defendants-appellees.
TIMMONS-GOODSON, Judge.
This is the second time this case has been before this Court
on appeal. Defendant Civil Service Board for the City of Charlotte
(“Board”) discharged plaintiff Shannon N. Jordan from his
employment with the Charlotte-Mecklenburg Police Department
(“Police Department”) after plaintiff fatally shot a civilian in
the course of his employment. The facts surrounding the shooting,
and ultimately leading to plaintiff's dismissal are largely
uncontroverted. Plaintiff was working at a license check point
constructed by the Police Department in Charlotte on the evening of
8 April 1997, when a vehicle approached the check point but failed
to stop. In response to a police radio broadcast from a fellow
officer to stop the car, plaintiff positioned himself in the middleof the roadway. At that time, the vehicle was approximately ninety
feet away and approaching plaintiff at an undetermined rate of
speed. Despite warnings from a nearby officer, Don Belz, plaintiff
remained in the roadway as the vehicle continued in his direction.
Plaintiff began to fire his weapon at the approaching vehicle.
After firing three times into the front of the vehicle, plaintiff
moved aside, only to fire two additional shots into the side of the
vehicle. After the vehicle had passed, plaintiff fired five
additional shots into the rear of the vehicle. One of the shots
fired by plaintiff after the vehicle passed struck and killed a
passenger in the vehicle.
Plaintiff was cited on 2 August 1997 by the Charlotte-
Mecklenburg Chief of Police for alleged violations of certain
departmental rules and procedures governing the use of deadly force
by Charlotte-Mecklenburg police officers. Based upon these alleged
violations, the Police Chief suspended plaintiff without pay and
recommended that the Board terminate his employment. This matter
was heard by the Board on 13-17 October 1997, and thereafter, the
Board concluded that plaintiff had violated both the Rule of
Conduct #28A and General Order #2, as alleged by the Police Chief.
Plaintiff appealed the Board's decision to the Mecklenburg
County Superior Court, pursuant to Section 4.61(7)(e) of the
Charter of the City of Charlotte. The superior court affirmed the
Board's decision, and plaintiff appealed to this Court. This
Court, “[u]nable to determine what standard of review the
[superior] court applied,” reversed and remanded this matter to thesuperior court, Jordan v. Civil Serv. Bd. of Charlotte, 137 N.C.
App. 575, 575, 528 S.E.2d 927, 928 (2000) (hereinafter “Jordan I”),
with instructions to “(1) make its own characterization of the
issues before it, and (2) clearly set out the standard(s) for its
review, delineating which standard it used to resolve each separate
issue raised by the parties.” Id. at 578, 528 S.E.2d at 930. On
remand, the superior court conducted a de novo review of the
Board's decision, and again, affirmed the decision of the Board.
Once again, plaintiff appeals.
21. Officer Jordan left his position,
proceeded past his police car and into the
roadway. He stood a little past the center of
the roadway in the eastbound lane of State
Street. . . . Officer Jordan saw the white
Corsica at the railroad tracks closest to
Gesco Street, approximately sixty (60) yards
from his location. Officer Jordan held his
flashlight in his left hand and began shining
it at the car, signaling the driver to stop.
22. The white Corsica . . . continued to
accelerate toward Officer Jordan's position.
23. Officer Belz shouted to Officer Jordan to
get out of the way and Officer Belz
simultaneously began to move into the roadway.
. . . At this point, Officer Jordan darted to
his right toward the curb of the eastbound
lane to avoid the car.
24. As Officer Jordan moved to his right, the
car moved farther into the eastbound lane and
continued to drive directly toward him.
. . . .
26. At this point, Officer Jordan believed
his life was in danger and the only recourse
was the use of deadly force to stop the threat
to his life. Officer Belz also believed
Officer Jordan was about to be run over and
seriously injured or killed by this white
Corsica.
27. Officer Jordan fired his service weapon
twelve (12) times at the white Corsica. His
shots struck the car as follows: three (3)
times in the front of the car on the driver's
side of the hood . . . , two (2) times in the
driver's side . . . . and at least five (5)
times in the rear . . . .
. . . .
32. One of the shots . . . fired at the rear
of the vehicle by Officer Jordan struck
passenger Carolyn Sue Boetticher in the back
of the head, fatally injuring her. Ms.
Boetticher was seated in the right front
passenger seat.
. . . .
36. A departmental procedure prohibiting
officers from stepping in front of automobiles
when stopping vehicles does not exist.
37. Officers of the Charlotte-Mecklenburg
Police Department commonly step in front of
automobiles when attempting to stop vehicles.
38. Officer Belz saw Officer Jordan with his
service weapon drawn when Officer Jordan was
approximately ninety (90) feet away from the
white Corsica.
39. Officer Belz warned Officer Jordan to “get
out of the way” at least three times.
40. Officer Jordan placed himself in a
position for the white Corsica to become an
imminent threat of bodily harm.
41. Officer Jordan had time to remove himself
from the threat of bodily harm.
42. Officer Jordan failed to use all options
available to him by not removing himself from
the threat of bodily harm; thereby making the
use of deadly force unnecessary and
unjustified.
Based upon these findings, the Board concluded:
1. Officer Jordan did not violate departmental
procedures by stepping out in front of the
white Corsica in an attempt to stop the
vehicle.
2. Officer Jordan violated departmental
procedure General Order #02, V.,E, “Firing At
Or From A Moving Vehicle” by not using all
available options to remove himself from the
threat of deadly force.
3. Officer Jordan used excessive force when he
discharged his service weapon at a white 1995
Chevrolet Corsica driven by Mr. Robert Gardner
Lundy on State Street resulting in the death
of Ms. Carolyn Sue Boetticher.
Based on these conclustions, the Board terminated plaintiff.
Plaintiff contends that the Board erred in terminating his
employment with the Police Department without specifically finding
that his belief that he was in imminent harm was unreasonable.
Plaintiff fails to recognize, however, that the superior court,
conducting de novo review of the Board's dismissal, was free to
review the evidence and make its own findings and conclusions,
which it did here. Though the superior court agreed with the
decision of the Board to terminate plaintiff's dismissal, the court
made the following pertinent findings in addition to those made by
the Board:
(7) On April 8, 1967 [sic], Appellant Jordan
fired his weapon twelve (12) times at a moving
vehicle that failed to stop for a routine
license check and at least five (5) of the
twelve (12) shots were discharged by the saidJordan into the rear of the vehicle including
the fatal bullet that struck the passenger,
Carolyn Sue Boetticher, in the back of the
head.
. . . .
(9) Before firing his weapon Appellant Jordan
saw the vehicle moving toward him at a
distance of at least 180 feet and he placed
himself in a position in the path of travel of
the vehicle causing the vehicle to become an
imminent threat of bodily harm to himself.
(10) Officer Jordan had time to remove himself
from the threat of bodily harm because he had
been warned by Officer Belz to get out of the
way at least three (3) times and further took
the time to exercise the option of discharging
his weapon three (3) times into the front of
the vehicle.
(11) Once the front of the vehicle had passed
Officer Jordan, there was no longer any
imminent threat of serious bodily injury or
death to himself or a third party.
The court went on to conclude, “The Board fairly interpreted Rule
of Conduct #28A which prohibits the use of excessive force by
concluding that Officer Jordan continued to discharge his weapon
after there was no threat of bodily harm or death to himself or a
third party thereby violating General Order #2, V., E. and
consequently using excessive force in violation of Rule of Conduct
#28 (A).”
Though the better practice may have been to make a specific
finding concerning the unreasonableness of plaintiff's belief, the
Board's failure to do so was not fatal in light of the
uncontroverted facts in this case. See Ballas v. Town of
Weaversville, 121 N.C. App. 346, 350-351, 465 S.E.2d 324, 327
(1996)(providing that, a failure to make a finding of fact is notfatal if the record sufficiently informs the court of the basis of
decision of the material issues or if the facts are undisputed and
different inferences are not permissible). The question of
“[w]hether an officer has used excessive force is judged by a
standard of objective reasonableness.” Clem v. Corbeau, 284 F.3d
543, 550 (2002). Without any “'precise definition or mechanical
application,'” id. (quoting Bell v. Wolfish, 441 U.S. 520, 559, 60
L. Ed. 2d 447, 481 (1979)), this test “'requires careful attention
to the facts and circumstances of each particular case.'” Id.
(quoting Graham v. Conner, 490 U.S. 386, 396, 104 L. Ed. 2d 443,
455 (1989)).
In the instant case, the facts are not in dispute. Looking at
this matter anew as we are required on de novo review, we conclude
that plaintiff's exercise of force was excessive under the facts
and circumstances of this record. Having placed himself in the
pathway of the car, resulting in imminent danger to himself,
plaintiff had sufficient time to extricate himself from the pathway
of the car, but failed to do so. Moreover, for any reasonable,
prudent officer in the same or similar circumstances, the fear of
imminent danger was removed after the vehicle sped past plaintiff
at the check point on the evening of 8 April 1997. Accordingly, it
naturally follows that plaintiff's actions in firing into the rear
of the vehicle after its passing were not based upon any reasonable
fear of imminent danger under General Order #2 V.E., and therefore,
those actions constituted excessive force under Rule of Conduct
#28A. We conclude that the Board's interpretation of Rule ofConduct #28A and General Order #2 V.E. was correct. Plaintiff's
arguments to the contrary are unpersuasive.
Having so concluded, we move to plaintiff's sixth assignment
of error, by which he argues that his right to an impartial
tribunal was denied when Valerie Woodard, the Chairperson of the
Board, was simultaneously employed as an investigator for the
Public Defender's Office, which was representing the driver, Mr.
Lundy, of the vehicle fired upon by plaintiff. Plaintiff contends
that Ms. Woodard's involvement in the case violated the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution and the Law of the Land Clause of Article I, Section
19 of the North Carolina Constitution. We disagree.
As with plaintiff's first argument, de novo review is
applicable here, and therefore, we consider this matter anew. See
Air-A-Plane Corp. v. North Carolina Dept. of Environment, Health
and Natural Resources, 118 N.C. App. 118, 124, 454 S.E.2d 297, 301
(stating that de novo review is required where constitutional
violations or unlawful procedure is alleged), disc. review denied,
340 N.C. 358, 458 S.E.2d 184 (1995). In Avant v. Sandhills Center
for Mental Health, 132 N.C. App. 542, 513 S.E.2d 79 (1999), this
Court noted, “The United State Supreme Court has held “'that there
is no per se violation of due process when an administrative
tribunal acts as both investigator and adjudicator on the same
matter.'” Id. at 549, 513 S.E.2d at 84 (quoting Hope v. Charlotte-
Mecklenburg Bd. of Educ., 110 N.C. App. 599, 603-04, 430 S.E.2d
472, 474-75 (1993)). In Hope, the Court noted that mereallegations, “[a]bsent a showing of actual bias or unfair
prejudice,” are not sufficient to overcome the presumption that the
Board acted properly. Hope, 110 N.C. App. at 604, 430 S.E.2d at
475. Similarly, our Supreme Court in Crump v. Board of Education,
326 N.C. 603, 392 S.E.2d 579 (1990), noted that a petitioner “must
show that the decision-making board or individual possesses a
disqualifying personal bias” to make out a due process claim
premised upon a theory of impartial decision-maker. Id. at 618,
392 S.E.2d at 586-87 (quoting Leiphart v. N.C. School of the Arts,
80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (1986), cert. denied,
318 N.C. 507, 349 S.E.2d 862 (1986)). “[T]o prove bias, it must be
shown that the decision-maker has made some sort of commitment, due
to bias, to decide the case in a particular way.” Evers v. Pender
County Bd. of Educ., 104 N.C. App. 1, 15, 407 S.E.2d 879, 887
(1991).
Here, the record shows that a hearing was held on plaintiff's
motion to have Ms. Woodard recuse herself. At the hearing, Ms.
Woodard testified that she had not acquired any information about
the instant case through her employment with the Public Defender's
office. She also testified that she had no knowledge of the case,
that she did not know anything about the parties, and that she
could be fair and impartial at the hearing and serve on the Board.
It was also shown that Ms. Woodard's supervisor at the Public
Defender's Office sent a memo to the attorney working on the Lundy
case, instructing the attorney not to discuss the case with Ms.
Wooodard. As plaintiff presented no evidence to rebut this showingof impartiality, we hold the superior court did not err in
concluding that the Board acted properly.
As to plaintiff's equal protection argument, which corresponds
to his seventh assignment of error, we hold similarly. Without
belaboring the point, we note that there has been no showing of
disparate treatment in this case to support an equal protection
claim. While both plaintiff and Officer Belz fired upon the
vehicle, one of the shots fired by plaintiff struck and killed the
passenger. The two officers therefore enjoyed differing levels of
culpability. As the suspension of Officer Belz and termination of
plaintiff were founded upon a rational basis, we conclude that the
accepted principles of equal protection were not violated. See
Durham Council of the Blind v. Edmisten, Att'y General, 79 N.C.
App. 156, 158, 339 S.E.2d 84, 86 (1986)(providing that the Equal
Protection Clause is violated if two persons, similarly situated,
are treated differently without rational basis), appeal dismissed
and cert. denied, 316 N.C. 552, 344 S.E.2d 5 (1986).
Having so concluded, the superior court's order upholding the
Board's termination of plaintiff's employment is affirmed.
Affirmed.
Judges MARTIN and BRYANT concur.
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