                             NO. COA13-1164

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 17 June 2014


WILLIAM S. MILLS, Ancillary
Administrator of the Estate of
AARON LORENZO DORSEY, Deceased,
     Plaintiff-Appellant,

    v.                                Durham County
                                      No. 11 CVS 004886
DUKE UNIVERSITY, a Not for Profit
Corporation, LARRY CARTER, and
JEFFREY LIBERTO, Jointly and
Severally,
     Defendants-Appellees.


    Appeal by Plaintiff from judgment entered 6 June 2013 by

Judge Paul G. Gessner in Superior Court, Durham County.        Heard

in the Court of Appeals 17 March 2014.


    Law Office of Michael R. Dezsi, PLLC, by Michael R. Dezsi,
    pro hac vice; and Tin Fulton Walker & Owen, PLLC, by Adam
    Stein, for Plaintiff-Appellant.

    Cranfill Sumner & Hartzog, LLP, by Dan M. Hartzog and Katie
    Weaver Hartzog, for Defendants-Appellees.


    McGEE, Judge.


    Aaron Lorenzo Dorsey (“Mr. Dorsey”) was shot and killed by

a Duke University Police officer at approximately 1:00 a.m. on

13 March 2010, just outside the main entrance to Duke University

Hospital   in   Durham   (“the   hospital”).    When   the   shooting
                                         -2-
occurred,        Preston    Locklear    was    being   treated    for     a   serious

injury in the intensive care unit of the hospital.                       A number of

members     of    Preston    Locklear’s       family   (“the   Locklear       family”)

were at the hospital that morning visiting him.                         The Locklear

family members included: Charles Brayboy, Krecia Ann Brayboy,

Alena      Hull,     Christine     Locklear,       Debbie      Locklear,       Justin

Locklear,        Shawn     Locklear,    Lenora     Locklear,      and     Billie   Jo

Locklear.

      In    his      deposition,       Mondrez     Pamplin      (“Mr.     Pamplin”),

testified that he was a hospital security guard working in the

front lobby of the hospital on the night shift between 12 and 13

March 2010. Shortly before 1:00 a.m. on 13 March 2010, a member

of the Locklear family approached him to complain about a man

panhandling near the entrance of the hospital.                   Mr. Pamplin went

outside and saw Mr. Dorsey.               He asked Mr. Dorsey if he was

visiting someone in the hospital, and Mr. Dorsey replied that he

was not.     Mr. Pamplin then suggested to Mr. Dorsey that he leave

Duke University property.               Mr. Dorsey did not leave, so Mr.

Pamplin contacted Duke University Police to report Mr. Dorsey as

a   suspicious      person.      Duke    University     Police    officers      Larry

Carter      (“Officer       Carter”)     and     Jeffrey       Liberto     (“Officer

Liberto”) (together, “the officers”) responded, arriving at the
                                       -3-
entrance of the hospital shortly after 1:00 a.m.                      Mr. Pamplin

asked the officers to “check [Mr. Dorsey] out.”

       The    officers       approached      Mr.    Dorsey      and   asked    for

identification.           Mr. Dorsey turned away from the officers and

started walking away.           At this point, according to the officers’

testimony, Officer Liberto grabbed Mr. Dorsey and a struggle

ensued.      Officer Carter went to assist Officer Liberto, and Mr.

Dorsey grabbed Officer Carter’s holstered weapon and attempted

to remove it from           Officer Carter’s        holster.      Officer Carter

pressed      down    on   Mr.   Dorsey’s     hand   or   hands,   attempting   to

prevent Mr. Dorsey from obtaining the weapon.                     Officer Carter

was yelling: “He’s got my gun.               He’s getting my gun.”        Officer

Liberto let go of Mr. Dorsey and first began hitting Mr. Dorsey

with his fists and then with his police baton.                    Officer Carter

ended up struggling with Mr. Dorsey on the ground.                        Officer

Liberto repeatedly asked if Mr. Dorsey had Officer Carter’s gun,

and both officers commanded Mr. Dorsey to let go of the weapon.

       Some members of the Locklear family testified by deposition

that   they    saw    Mr.    Dorsey   grab    Officer    Carter’s     weapon   and

struggle with Officer Carter in an attempt to take that weapon.

Other members of the Locklear family testified they could not

see Mr. Dorsey’s hands and, therefore, could not say if Mr.

Dorsey was grabbing Officer Carter’s weapon.                   However, they did
                                         -4-
hear    someone    yelling    things     like:    “He’s    grabbed       the    gun[,]”

“[l]et go; let go; let go,” and “let go of the gun.”                      Some of the

Locklear family deposition testimony differed from State Bureau of

Investigation (“SBI”) reports written after SBI agents had interviewed

those    family   members   immediately        following   the     shooting.        The

officers were not able to subdue Mr. Dorsey and, at some point

during the struggle, Officer Liberto drew his service weapon and

shot Mr. Dorsey in the head at close range.                   Mr. Dorsey died at

the scene.

        This action was filed on 16 September 2011 by William S.

Mills,     administrator      of   Mr.     Dorsey’s       estate    (“Plaintiff”).

Plaintiff’s       complaint    named      as     defendants      Duke     University

(“Duke”),     Officer       Carter,     and     Officer     Liberto       (together,

“Defendants”).        Plaintiff’s        complaint    included      as    causes     of

action:      (1)      wrongful         death/negligence,           (2)         wrongful

death/assault and battery, and (3) wrongful death/willful and

wanton conduct. Defendants filed a motion for summary judgment

on 2 May 2013, alleging that the officers: (1) were “legally

justified in using reasonable force to protect the lives and

safety of themselves and other innocent bystanders[,]” (2) were

“entitled to public official immunity[,]” (3) “acted reasonably

at all times and there [was] no negligence or other grounds for

liability which can be imputed to Duke[,]” (4) committed no acts
                                              -5-
justifying       punitive       damages,           and    (5)     that        “[Mr.]      Dorsey’s

actions     at    the     time     of       the        incident       . . . were       the     sole

proximate        cause    of     his        death       and     constitute           contributory

negligence[.]”

    The trial court entered judgment on 6 June 2013 granting

summary   judgment        in     favor       of    Defendants          on    all     claims,    and

dismissing the action with prejudice.                         Plaintiff appeals.              There

are additional relevant facts that will be discussed in the body

of the opinion.

                                                  I.

    Plaintiff argues that the trial court erred in granting

summary judgment in favor of Defendants.                          We disagree.

    We    first       note     that     all       Plaintiff’s          arguments       on    appeal

concern     Officers         Carter         and        Liberto     in        their     individual

capacities,       and    that     Plaintiff            does     not     argue      that     summary

judgment,      with      respect       to    Duke,        was     improper.            Therefore,

summary judgment in favor of Duke is affirmed.                                Likewise, to the

extent,   if      any,    that     Plaintiff’s            complaint          contained       claims

against     Officers         Carter          and        Liberto        in     their       official

capacities, summary judgment on those claims is affirmed.

    Summary        judgment        is       proper        only        “‘if     the     pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no
                               -6-
genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.’”   Liberty Mut. Ins.

Co. v. Pennington, 356 N.C. 571, 578-79, 573 S.E.2d 118, 123

(2002) (citation omitted).

         This Court has recognized that deciding what
         constitutes a bona fide issue of material
         fact is seldom an easy task.     Nonetheless,
         we have instructed that “an issue is genuine
         if it is supported by substantial evidence,”
         which is that amount of relevant evidence
         necessary to persuade a reasonable mind to
         accept a conclusion.   Further, we have said
         that “[a]n issue is material if the facts
         alleged would constitute a legal defense, or
         would affect the result of the action, or if
         its resolution would prevent the party
         against whom it is resolved from prevailing
         in the action.”    The party seeking summary
         judgment   bears   the  initial   burden   of
         demonstrating the absence of a genuine issue
         of   material    fact.      If   the   movant
         successfully makes such a showing, the
         burden then shifts to the nonmovant to come
         forward with specific facts establishing the
         presence of a genuine factual dispute for
         trial.    “When considering a motion for
         summary judgment, the trial judge must view
         the presented evidence in a light most
         favorable to the nonmoving party.”       “All
         inferences of fact must be drawn against the
         movant and in favor of the nonmovant.”

Id. at 578-79, 573 S.E.2d at 123-24 (citations omitted).

                               II.

    We must first address whether Officers Carter and Liberto

are protected by public official immunity.   “‘[P]ublic officials

cannot be held individually liable for damages caused by mere
                                             -7-
negligence      in       the    performance          of       their     governmental      or

discretionary duties.’             Police officers are public officials.”

Clayton v. Branson, 153 N.C. App. 488, 492, 570 S.E.2d 253, 256

(2002) (citations omitted).                   “A public official can be held

individually liable if it is prove[n] that his act, or failure

to act, was corrupt or malicious, or that he acted outside of

and   beyond     the      scope    of    his    duties.”              Id.    (citation   and

quotation marks omitted).

      Plaintiff contends that the officers cannot be covered by

public official immunity because they were hired by, and were

working   for,       a   private      institution         –    Duke     University.       We

disagree.

      “[A] policeman is an officer of the State.”                            State v. Hord,

264   N.C.   149,        155,   141     S.E.2d       241,      245    (1965)      (citations

omitted).      “It is not the method by which a policeman becomes a

member of the police force of a municipality that determines his

status    but     the       nature      and        extent       of     his     duties    and

responsibilities with which he is charged under the law.”                                Id.

“To constitute an office, as distinguished from employment, it

is essential that the position must have been created by the

constitution      or      statutes      of     the    sovereignty,           or   that   the

sovereign power shall have delegated to an inferior body the

right to create the position in question.”                            Id.    “An essential
                                          -8-
difference between a public office and mere employment is the

fact that the duties of the incumbent of an office shall involve

the exercise of some portion of the sovereign power.”                       Id.; see

also State v. Ferebee, 177 N.C. App. 785, 788, 630 S.E.2d 460,

462 (2006) (citation omitted) (“Under . . . the Campus Police

Act, campus police officers have the same statutory authority

granted to municipal and county police officers to make arrests

for both felonies and misdemeanors and to charge for infractions

within their jurisdictions.               As such, they qualify as ‘public

officers’ pursuant to N.C. Gen. Stat. § 14–223.”).

      Our General Assembly granted certain private universities

the power to create campus police agencies through the enactment

of Chapter 74G, the Campus Police Act.                N.C. Gen. Stat. §§ 74G-1

to   13   (2013).     “As   part     of    the    Campus     Police    Program,     the

Attorney General is given the authority to certify a private,

nonprofit    institution     of    higher        education    . . . as      a   campus

police agency and to commission an individual as a campus police

officer.”     N.C.G.S. § 74G-2(a).                “The principal State power

conferred    on   campus    police    by    this    Chapter     is    the   power   of

arrest[.]”    N.C.G.S. § 74G-2(b)(6).              “In exercising the power of

arrest, these officers apply standards established by State and

federal law only[.]”         N.C.G.S. § 74G-2(b)(8).                  “Campus police

officers,     while    in    the     performance        of     their     duties     of
                                     -9-
employment, have the same powers as municipal and county police

officers to make arrests for both felonies and misdemeanors and

to   charge    for   infractions”   on     campus   and   other   property    as

allowed by the Campus Police Act.           N.C.G.S. § 74G-6(b).

      It is clear that campus police such as Officers Carter and

Liberto,      like   municipal    police     officers,    act     pursuant   to

authority granted by our General Assembly, and that their duties

involve “the exercise of some portion of the sovereign power.”

Hord, 264 N.C. at 155, 141 S.E.2d at 245.             We hold that Officers

Carter and Liberto are entitled to public official immunity for

their acts in furtherance of their official duties so long as

those acts were not corrupt, malicious, or outside of and beyond

the scope of their duties.          Clayton, 153 N.C. App. at 492, 570

S.E.2d at 256.

                                    III.

      Plaintiff first contends there existed “genuine issues of

material fact such that summary judgment was improper.”                      All

three    of     Plaintiff’s      claims     were    for    wrongful     death.

Specifically, Plaintiff argues:

              A genuine issue of fact clearly exists here,
              where one witness is claiming that Mr.
              Dorsey had a hold of Officer Carter’s gun
              throughout  the   entire  duration   of  the
              struggle, which was said to last more than
              three minutes, and where several other
              witnesses, those who were in close proximity
              to the events, testified that Mr. Dorsey did
                                              -10-
            not, at any time, reach for or grab Officer
            Carter’s gun.   The contradictory nature of
            the testimony of these witnesses is simply
            too glaring.

    Plaintiff        contends          in     his     brief      that     the    deposition

testimony of Mr. Pamplin, Duke security guard Mark Golby, and

Christine Locklear support the above argument.                           However, none of

these witnesses testified that: “[Mr.] Dorsey did not, at any

time, reach for or grab Officer Carter’s gun.”                             None of these

witnesses testified in any manner to even a suspicion that Mr.

Dorsey   never   grabbed         Officer       Carter’s       gun.       These    witnesses

testified    that,     from       where        they       were    located       during     the

incident,    they    could       not    see     Mr.       Dorsey’s      hands    or    Officer

Carter’s weapon.       Because they could not see what was happening

with Officer Carter’s weapon during the struggle, they could not

honestly    state    that     they       ever       saw    Mr.   Dorsey     grab       Officer

Carter’s    weapon.      They          did,    however,       provide      the    following

testimony.

    Mr. Pamplin testified, inter alia, that during the several-

minute     struggle,        he     heard            the     officers       yell        “[s]top

resisting[,]” heard Officer Carter say: “He has my gun[,]” saw

Officer Carter and Mr. Dorsey struggling ‒ both standing up and

on the ground ‒ and heard the officers repeatedly command Mr.

Dorsey to: “Let go of the gun; let go of the gun.”                                    When Mr.

Pamplin was asked if he had “any reason to doubt that Mr. Dorsey
                                          -11-
was holding the gun,” he answered: “No.”                           When asked if he

thought     Mr.    Dorsey    did     grab    Officer         Carter’s       weapon,   he

answered:       “Yes.”       Mr.    Pamplin’s         testimony       was     generally

consistent with that of both Officer Carter and Officer Liberto.

This testimony is directly contrary to the following statement

made by Plaintiff in his brief: “[Mr.] Pamplin testified that

. . . Officer Carter yelled to Officer Liberto that Mr. Dorsey

had a hold of Officer Carter’s weapon, although [Mr.] Pamplin

denied    that    Mr.    Dorsey    ever    actually     had    a    hold    of   Officer

Carter’s    gun.         (Pamplin    Dep.,       p.   45).”     (Emphasis        added).

Nowhere on page forty-five ‒ or anywhere else in Mr. Pamplin’s

deposition ‒ does he testify that Mr. Dorsey never “had a hold”

of Officer Carter’s weapon.

    In his deposition, Duke security guard Mark Golby (“Mr.

Golby”), testified as follows:

            Q. Okay. You gave some testimony in which
            you said you never saw [Mr.] Dorsey’s hands
            on the gun; you never saw those sorts of
            things. From [where] you were standing, you
            were not able to see [Officer] Carter’s gun,
            were you?

            A     No.

            Q.    And you were not able to see [Mr.]
            Dorsey’s hands or [Officer] Carter’s hands
            at that time, were you?

            A.    No, I couldn’t see.

            Q.      So    when    you’re    saying     you    never     saw
                                            -12-
               this, what you’re             really      saying      is    you
               couldn’t see it?

               A.    Right.

       Mr.   Golby     further       testified      that,      during      the    struggle,

Officer Carter said Mr. Dorsey had a hold of Officer Carter’s

weapon, that Officer Liberto told Mr. Dorsey several times to

let go of the weapon, and that Officer Liberto finally told Mr.

Dorsey that if he did not release the weapon, Officer Liberto

would shoot him.         Nowhere did Mr. Golby indicate that Mr. Dorsey

did not reach for or grab Officer Carter’s weapon.                              Mr. Golby’s

deposition testimony is generally consistent with that of both

Officer Carter and Officer Liberto.

       Christine Locklear testified she saw the officers talking

to Mr. Dorsey, but did not hear what was said.                              She saw them

begin to scuffle and saw Mr. Dorsey and Officer Carter fall to

the ground.          She then went inside the hospital, and was inside

when   the     shot    was    fired.         As    she   was    about      to    enter      the

hospital,      immediately         before    she    heard      the   shot,       she   “heard

somebody       say    ‘he’s    got    his     hands      on    the   [weapon.]’”             At

Christine Locklear’s deposition, when asked, she agreed she did

not    “know    whether       or    not     Mr.    Dorsey     got    his    hand       on   the

officer’s weapon[,]” she “just didn’t see that[,] . . . if when

he fell, that was going on – if when he fell that Mr. Dorsey did

reach for it, I did not see it.                    Honey, I got away from that.”
                              -13-
Christine Locklear did not say it did not happen.      Plaintiff’s

attorney asked her if, when Mr. Dorsey and the officers were

struggling on the ground, she thought “that Mr. Dorsey presented

a serious risk of harm to the police officers?”   She answered:

         I did.    . . .    I thought he could have
         grabbed his gun. . . . I mean, it was like
         he got in a rage or something when they
         asked him.     You know, or I assumed they
         asked him to leave the premises, and it was
         like he got in a rage and real angry, I
         mean, just because of the assumptions or
         whatever. He was real, real upset. He was
         really angry.

    Christine Locklear testified that,     immediately after the

shooting, she heard people talking about what had just happened,

and she heard people saying things like:

         Yeah, that he did grab the Law’s gun and
         that’s the reason and I heard that – I
         assumed that the white man did hit him with
         the baton to get him off the Law but no way
         – I mean, it was said that he was beat with
         the baton, and he would not let go of the
         officer’s gun that he had; so after [the
         officer] beat [him] so long and he wouldn’t
         let go, that’s when, I reckon, they drew the
         gun.   And it was said that, you know, they
         told him to let go and he wouldn’t and so he
         shot him.

Christine Locklear stated she didn’t specifically remember if

any of her family members said they saw Mr. Dorsey grab the gun.

Nowhere in the testimony of Mr. Pamplin, Mr. Golby, or Christine

Locklear did either of them state that Mr. Dorsey did not grab
                                  -14-
Officer Carter’s weapon, or that they believed Mr. Dorsey never

grabbed Officer Carter’s weapon.

       Multiple other witnesses testified by deposition that they

did see Mr. Dorsey attempting to take Officer Carter’s weapon

from    Officer   Carter’s   holster.    Alena   Hull   (“Ms.   Hull”)

testified:

           A And they went to fighting and stuff, and
           the black officer [Carter], he was down on
           the ground; but the white officer [Liberto],
           now, he had out his gun.

           . . . .

           A And telling the boy [Mr. Dorsey] to give
           up – he kept telling the boy to give up
           because they were already fighting him and
           beating him and he never would give up, and
           the black Law and him, they went down to the
           ground; and he had his hand on the Law’s
           pistol.

           Q   Okay.   Who did?

           A   The guy that was shot.

           . . . .

           Q   Okay.  When you saw that, did you think
           he [Mr. Dorsey] was trying to take [Officer
           Carter’s] gun?

           A   Yes, sir because he was in a rage.

           . . . .

           A   My opinion, the black guy that was down
           on the ground and the one that was shot, the
           white officer had no other choice but to
           shoot him where he shot, being honest,
           because if he would have done anything else,
                                 -15-
          he would have shot the other officer.

          . . . .

          A He was hitting him in his back, his head,
          [with what looked like a “blackjack”] and he
          never would turn loose.

    It is true that a report made by SBI Special Agent B.S.

Fleming following an on-site interview with Ms. Hull shortly

after the incident does not include the same detail.           According

to Agent Fleming’s report, Ms. Hull told him “she heard someone

scream that someone had a gun[,]” saw two officers fighting with

a man, and saw a white officer with his weapon drawn.          According

to this report, Ms. Hull could not see what was happening with

Officer Carter’s weapon or Mr. Dorsey’s hands.

    Krecia   Ann    Brayboy   (“Ms.   Brayboy”)    testified   that    Mr.

Dorsey grabbed the black officer’s weapon with his right hand

and she thought at that time the black officer “threw his hand

on top of [Mr. Dorsey’s] hand trying to keep [Mr. Dorsey] from

pulling   [the   officer’s    weapon];   getting    it   out   of     [the

holster].”   Ms. Brayboy testified,

          to me, if he would have fired anywhere else
          below the shoulders, the black officer would
          have gotten shot.    . . . .  Truthfully, to
          be honest, I’m sorry for what happened, but
          the officer really had no other choice
          because if this man would have gotten this
          weapon unhooked, it would have been chaos
          there.    There isn’t any telling who all
          would have been killed[.]
                                   -16-
Ms. Brayboy heard the white officer saying: “Let it go, let it

go.   Let it go, let it go.”      Further, according to Ms. Brayboy,

Mr. Dorsey

           just would not let that weapon go.     . . . .
           [t]hey could not get him to break that grip.
           . . . . All I know is Mr. Dorsey had a grip
           of that man’s weapon and would not let go.
           They begged and begged and begged this man
           to let this weapon go and he wouldn’t.

Ms. Brayboy admitted she had withheld most of this information

from the SBI agent who interviewed her on the night of the

incident; instead, stating that she had been inside at the time

and had not seen anything.

      Charles Brayboy (“Mr. Brayboy”) testified that Mr. Dorsey

grabbed Officer Carter’s weapon and would not let it go.

           I don’t know how in the world [Officer
           Carter] held onto that guy and held his
           hand. The cop was telling him to let it go,
           man; let it go.     . . . .    He begged him,
           man.   He begged him to let it go, man.    He
           tried his best. . . .     He told him to let
           it go, man. He said let it go, man; let it
           go; let it go, man; let it go.      He didn’t
           want to do it, man.    . . . .   I was scared
           if he got that gun out, man, there wasn’t
           any telling what he might have done.

Mr.   Brayboy   testified   he   had   withheld   information   from   the

original investigating officer, but, after thinking about the

situation, he realized had it been his child who had been shot,

he would have wanted to know why it happened.
                                       -17-
    Debbie      Locklear   first       told   investigators   she   saw    the

officers struggling with Mr. Dorsey, and heard them yelling,

“‘put it down’ and ‘let it go’ over and over again.”                She told

investigators she did not see what was in Mr. Dorsey’s hands.

In her opinion, the officers “did what they had to do” because

Mr. Dorsey “refused to surrender” and the officers were “in

danger.”    In her deposition testimony, Debbie Locklear stated:

            [Mr. Dorsey] was very, very – he was on
            something.   This black guy, his eye balls
            were that big. They tussled. They fought.
            They tussled.   I mean, they had a black –
            some kind of thing. I mean, they were just
            trying to make him – you know. When he got
            his hand on that gun – his gun was in the
            holster. The black guy got his hand on that
            gun and would not let that gun go, and when
            I gave this statement, I was throwing up. I
            was so disgusted. I was scared, crying, and
            everything else, and when you get in a state
            of mind like that there and you know when
            your life is on the line, too, your mind
            goes blank.

    Plaintiff agrees that Mr. Dorsey and Officer Carter became

engaged    in   a   struggle;   that    Officer   Liberto   hit   Mr.   Dorsey

multiple times with his fist and his standard issue baton; that

Mr. Dorsey and Officer Carter fell to the ground, still locked

in a struggle; and that Officer Liberto finally drew his service

weapon and shot Mr. Dorsey in the head.            Both officers testified

that Mr. Dorsey grabbed Officer Carter’s weapon and would not

let it go.      They both testified that Officer Liberto attempted
                                            -18-
to get Mr. Dorsey to release the weapon by hitting Mr. Dorsey

with his fist.            Officer Liberto testified when that did not

work, he removed his baton and began hitting Mr. Dorsey with the

baton,    but    that     Mr.   Dorsey      still    would       not     release      Officer

Carter’s weapon.           The officers testified that Officer Liberto

repeatedly       commanded      Mr.    Dorsey       to    let    go      of    the    weapon.

According to both officers, after Officer Carter and Mr. Dorsey

fell to the ground, Officer Carter called out that Mr. Dorsey

was pulling on the weapon.                  Officer Carter testified that his

weapon was pulled partially out of his holster.                          Officer Liberto

testified       that    Officer       Carter    yelled      that       Mr.     Dorsey     was

“getting [his] gun.”            Both officers testified they believed Mr.

Dorsey was an immediate threat because he was pulling on the

weapon, would not release it, and might have gained control of

it.

      Plaintiff’s        own    expert,      Francis       Murphy        (“Mr.       Murphy”),

testified       he     believed   Mr.       Dorsey       grabbed       Officer       Carter’s

weapon, though he believed it happened after Officer Liberto had

hit Mr. Dorsey with his fists and the baton.                             Mr. Murphy also

testified he believed the reason Officer Liberto shot Mr. Dorsey

“was because he was inadequately trained.                       He didn’t know how to

control    the       situation.        He    didn’t       know     how    to     break    the

situation up.”          Mr. Murphy testified he didn’t believe Officer
                                     -19-
Liberto wanted to shoot Mr. Dorsey; his opinion was that the

officers    were    trying   to     arrest      Mr.   Dorsey    without    legal

justification and that, due to poor training, the officers used

unnecessary force and Mr. Dorsey responded.                 When asked: “But

once [attempts to subdue Mr. Dorsey] had failed and they got to

this point where the deadly force appeared to be imminent to be

used   against     them,   that’s   why     [Officer     Liberto]   shot     [Mr.

Dorsey]?”    Mr. Murphy replied: “Sure.”

       Viewing   the   evidence     in    the    light   most    favorable    to

Plaintiff, Plaintiff provided no evidence tending to show that

Mr. Dorsey did not attempt to gain control of Officer Carter’s

weapon.     “At the summary judgment stage, plaintiffs cannot rely

on the allegations of the complaint; rather, plaintiffs need to

present specific facts to support their claim.”                Haynes v. B & B

Realty Grp., LLC, 179 N.C. App. 104, 109, 633 S.E.2d 691, 694

(2006) (citation omitted).

       Our Supreme Court has long held:

            It is axiomatic that every person has the
            right to resist an unlawful arrest. In such
            case the person attempting the arrest stands
            in the position of a wrongdoer and may be
            resisted by the use of force, as in self-
            defense. True the right of a person to use
            force in resisting an illegal arrest is not
            unlimited.    He may use only such force as
            reasonably    appears   to  be   necessary  to
            prevent   the    unlawful  restraint   of  his
            liberty.     And where excessive force is
            exerted, the person seeking to avoid arrest
                                     -20-
           may be convicted of assault,            or    even   of
           homicide if death ensues[.]

           In applying this rule of law, this Court has
           engaged    in   the   following   analytical
           framework:

                Since the initial arrest . . . [was]
                illegal, plaintiff was entitled to use
                a reasonable amount of force to resist.
                Under this analysis, if the amount of
                force    used    by     plaintiff     was
                unreasonable . . ., then the officers
                had probable cause to arrest him under
                G.S.   §   14–33(b)(8)    [the    statute
                criminalizing an assault on a law
                enforcement or government officer].

           Moreover, the General Assembly has also
           provided   that   an    individual “is   not
           justified in using a deadly weapon or deadly
           force to resist an arrest by a law-
           enforcement officer using reasonable force,”
           when the individual knows that it is a true
           law enforcement officer who is attempting to
           make the arrest.     N.C. Gen. Stat. § 15A–
           401(f)(1) (2005).

State v. Branch, 194 N.C. App. 173, 177, 669 S.E.2d 18, 20-21

(2008) (citations omitted).          This Court has applied the same

analysis when reviewing detentions not amounting to arrest.                   Id.

at 178, 669 S.E.2d at 21.

    Assuming,   arguendo,      the   officers    had    no   legal    basis   to

detain Mr. Dorsey, Mr. Dorsey was not justified to resort to

deadly force in response to that detention.                  Once Mr. Dorsey

grabbed   Officer   Carter’s    weapon,     he   exceeded     any    “force   as

reasonably appear[ed] to be necessary to prevent the unlawful
                                               -21-
restraint of his liberty.”                    Id. at 177, 669 S.E.2d at 20.                    Mr.

Dorsey’s response was excessive, and became unlawful.                                     Id. at

177, 669 S.E.2d at 20-21.                     Had the officers managed to subdue

Mr. Dorsey without the use of deadly force, they could have, and

almost certainly would have, arrested Mr. Dorsey.

    An officer may resort to the use of deadly force “[t]o

defend    himself       or    a    third       person        from    what    he     reasonably

believes    to     be   the       use    or    imminent       use    of     deadly    physical

force[.]”        N.C. Gen. Stat. § 15A-401(d)(2)(a) (2013).                                “This

portion    of    the     statute        ‘was     designed         solely     to    codify      and

clarify    those      situations         in     which    a    police       officer       may   use

deadly     force      without       fear       of     incurring       criminal       or    civil

liability.’”        Turner v. City of Greenville, 197 N.C. App. 562,

567, 677 S.E.2d 480, 484 (2009) (citation omitted).

    Although Plaintiff presented expert testimony in support of

his claim that Mr. Dorsey’s hands were not on Officer Carter’s

weapon at the time Officer Liberto shot Mr. Dorsey, “[a] public

official    can       [only]      be     held       individually       liable       if    it    is

‘prove[n]    that       his    act,      or    failure       to     act,    was    corrupt      or

malicious, or that he acted outside of and beyond the scope of

his duties.’”         Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256

(citations       omitted).              John    Eric     Combs       (“Mr.        Combs”),      an

instructor      for     the    North      Carolina      Justice       Academy,       testified
                               -22-
concerning the required “subject control and arrest techniques

lesson plan for law enforcement officers” in North Carolina.

Mr. Combs testified he did not know if Mr. Dorsey’s hands were

on the gun at the time Officer Liberto fired the shot, but it

would not have changed his opinion that Officer Liberto’s use of

deadly force was justified.    Mr. Combs stated: “We specifically

teach in the subject control arrest techniques training program

that any attack that includes an attempt to disarm an officer is

a deadly force attack.”     Mr. Combs was asked: “So an officer

would be entitled to counter that deadly force with the use of

deadly force?”    Mr. Combs responded: “Yes, sir.”          Mr. Combs

further opined: “As far as a situation where two officers are

around, an assailant grabs an officer’s weapon, my suggestion at

that point is for the other officer to do exactly what [Officer]

Liberto did and use deadly force.”

    Former SBI Agent Steven Carpenter testified that in his

opinion:

           Looking at all the depositions and stuff,
           and   applying   North   Carolina’s    General
           Statute 15a-401, they very, very early in
           this struggle had every reason in the world
           to believe [Mr. Dorsey] intended to take
           that gun and harm somebody.        They were
           responsible for protecting a large number of
           citizens around them that night.      . . . .
           As   a    police   officer    they    had    a
           responsibility to protect those people, and,
           if anything, I don’t think they reacted
           quick enough to ensure that these people did
                                                -23-
               not meet with serious injury or death.

    We        hold     that     the    evidence,       viewed      in    the    light       most

favorable       to    Plaintiff,       does      not   show    that     the    acts    of    the

officers       leading        to    Mr.    Dorsey’s      death     were       “‘corrupt       or

malicious, or . . . outside of and beyond the scope of [their]

duties.’”        Clayton, 153 N.C. App. at 492, 570 S.E.2d at 256

(citations omitted).               We affirm the grant of summary judgment in

favor    of     Officer       Carter      and    Officer      Liberto     on     Plaintiff’s

claims     of        wrongful      death      against      the     officers       in    their

individual capacities.

    Plaintiff also argues the trial court erred in granting

summary       judgment        on      Plaintiff’s        claim     of     false        arrest.

Plaintiff’s complaint did not contain a claim for false arrest.

Plaintiff       filed     a     motion     for     leave      to   file       first    amended

complaint, adding a claim for false arrest, four days before the

hearing on Defendants’ motion for summary judgment.                               The trial

court heard Plaintiff’s motion after it had heard Defendants’

motion for summary judgment and, at the close of the hearing,

stated: “I’m going to take the motion to amend the complaint, as

well as the motion for summary judgment under advisement.”                                    As

Plaintiff acknowledges in his brief, “the [trial court] failed

to rule on the motion to amend.”                       “[G]enerally, the failure to

obtain a ruling on a motion presented to a trial court renders
                              -24-
the argument raised in the motion unpreserved on appeal.      See

N.C.R. App. P. 10(a)(1) (2012).”     Dep't of Transp. v. Webster,

__ N.C. App. __, __, 751 S.E.2d 220, 223 (2013) disc. review

denied, __ N.C. __, 755 S.E.2d 618 (2014).      The present issue

does not fall outside the general rule.   Plaintiff has failed to

preserve this argument for appellate review.   Id.

    Because of our holdings above, we do not reach Plaintiff’s

argument concerning contributory negligence.

    Affirmed.

    Chief Judge MARTIN and Judge CALABRIA concur.
