Officer amends lawsuit against Spencer
Published 12:00 am Friday, November 4, 2011
By Shavonne Potts
SPENCER — Police officer James Schmierer has dropped part of his claim against the town in a lawsuit alleging a fellow officer intentionally shot him with an Airsoft toy gun, but plans to add other claims, his lawyer said.
The suit was filed May 27, about two months after the March 2 incident.
Schmierer said Officer Hunter Shue intentionally shot him in the leg with what he initially described as a pellet gun. Both officers were in uniform and outside the Spencer Police Department.
Both Schmierer and Shue work for the Spencer Police Department.
Schmierer says in his complaint he was shot seven times from his ankle to mid-thigh. The suit does not indicate a motive for the shooting. The suit said Schmierer was shot at close range with a gun that he said looked like a full-sized, black assault rifle with a folding stock and magazine.
Shue admits in his response to the complaint to shooting Schmierer, but denies it was intentional.
Shue also denies in his response that the gun looked like an assault rifle.
The pellet gun was an “automatic weapon that was shot numerous times,” the suit says.
In early September, Schmierer filed a request to amend his initial complaint. Superior Court Judge Anna Mills Wagoner approved the change. The amendment removes his claim against the town of Spencer for relief for negligent hiring and for battery based on the idea that the employer is responsible for an employee’s actions performed within the course of their employment.
The amendment was filed by Schmierer’s attorney, Seth Cohen of Greensboro.
Cohen said his client was hurt at work and is suing a company employee, which he can do and can “sue an employer for certain intentional acts, but not for negligence.”
Cohen said based on further investigation into the Worker’s Compensation Act, he made the change.
Schmierer is still suing the town for battery and intentional infliction of emotional distress based on the allegation that the town “ratified the action” by not sufficiently disciplining Shue, Cohen said.
Since the amendment was granted by a judge, Schmierer has until mid-November to formally file it.
Originally, Schmierer’s lawsuit claimed the town was negligent in hiring Shue because of reckless behavior. The suit alleges Shue resigned from the Kannapolis Police Department after displaying the same type of reckless behavior.
Shue began in January 2009 as a police officer trainee with the Kannapolis Police Department but left in March 2009.
On March 9, 2009, Shue was charged with speeding and reckless driving.
Shue pleaded guilty to reckless driving, while the speeding charge was dismissed. He paid a $50 fine and received one year of unsupervised probation, the lawsuit said.
Spencer officials knew about the traffic infraction and Shue’s subsequent plea and probation terms, the suit said.
The suit claims the town should’ve known Shue was “incompetent and/or unfit to be employed as a police officer.”
The Spencer Police Department conducted an investigation of the pellet-gun incident and subsequently placed a letter of reprimand in Shue’s personnel file.
In Shue’s response, he said a reprimand letter in his employee file was not all he received. But he does not specify what other disciplinary action he received.
Cohen said it is his client’s belief that the town did not take appropriate steps to reprimand Shue.
In August, the town filed a motion to have all claims against it dismissed.
The issue was not addressed at the scheduled hearing.
Douglas Grimes, attorney for the town of Spencer, declined to comment.
Andrew Jennings, Shue’s attorney, did not return repeated phone calls to his office.
Schmierer is requesting that the case go to trial. A trial date has not been set.
Contact reporter Shavonne Potts at 704-797-4253.