A three-member Court of Appeals panel unanimously agreed that two Duke police officers acted legally after a struggle outside Duke University Hospital in 2010 left a man dead from a bullet to the brain.
The judges' 24-page opinion, published this morning, analyzed the case of Aaron Lorenzo Dorsey, who, during a physical tussle with the police officers, reached for the gun of one of them. As the struggle continued, Officer Jeffrey Liberto fired a shot into Dorsey's head, killing him.
Dorsey's family filed a wrongful death lawsuit against Duke, LIberto and a second officer, Larry Carter, alleging negligence, assault, and willful and wanton conduct. Last summer a Durham judge dismissed the case, ruling that the officers used justifiable force to protect their own lives, as well as the lives of bystanders. The Dorsey family appealed.
In their opinion today, the appellate judges concluded that the officers' acts were not corrupt, malicious or outside of and beyond the scope of their duties.
On March 13, 2010, at around 1 a.m., a Duke hospital security guard asked Dorsey, 25, to leave the property. Dorsey refused. Liberto and Carter arrived and asked Dorsey for identification. Dorsey started walking away.
According to the officers' testimony, Liberto grabbed Dorsey, and a struggle ensued. When Carter entered the fray, Dorsey reached for the gun on Carter's holster. Carter clamped his hand on Dorsey's and said, "He's got my gun. He's getting my gun." Liberto began hitting Dorsey with his fists and a police baton as Carter and Dorsey wrestled on the ground. Both officers told Dorsey to let go of the gun. During the struggle, Liberto drew his own gun and shot Dorsey in the head.
Although they acknowledged the uncertainty as to whether Dorsey's hand was physically on Carter's gun when Liberto shot him, the judges ruled: "Mr. Dorsey's response was excessive, and became unlawful...An officer may resort to the used 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.' "
The judges relied partly on the testimony of John Eric Combs, an instructor of the North Carolina Justice Academy, who trains officers for these types of scenarios. "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 Liberto did and use deadly force," Combs testified.
"Our sympathies go first to the Dorsey family on the loss of their loved one. We are grateful the court has affirmed that Duke's police officers acted properly to protect the safety of the public and themselves," said Duke spokesman Michael Schoenfeld.