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Cox v. Duke Energy, Inc.

United States District Court, D. South Carolina, Florence Division

March 31, 2016

William B. Cox, Personal Representative for the Estate of Robin C. Flemming, Plaintiff,
Duke Energy, Inc., Darlington County Sheriff’s Office, Darlington County Sheriff J.W. Byrd, Gary Streett, Joyce C. Everett, and William “Randy” Gideon, Defendants.


Bruce Howe Hendricks United States District Judge

This matter is before the Court on the motion of the Defendants Duke Energy, Inc., [1] and William “Randy” Gideon (collectively the “Duke Defendants”) for summary judgment (ECF No. 135) and on the motion of Defendants JW Byrd, Joyce C. Everett, Gary Streett, and the Darlington County Sheriff’s Office (collectively the “Darlington Defendants”) for summary judgment (ECF No. 141). For the reasons set forth below, the Court grants the motions for summary judgment.


The Plaintiff in this case is William B. Cox, who is acting as the personal representative of the Estate of Robin C. Fleming. On October 10, 2013, Plaintiff was substituted for Mr. Fleming, who sadly passed away from cancer on July 3, 2013. (See ECF Nos. 29 & 31.) This case arises out of the July 26, 2012 arrest of Mr. Fleming, a then 70 year-old retired aeronautical engineer and commercial glider pilot, by officers of the Darlington County Sherriff’s Office. Mr. Fleming was ordered to land at the Hartsville Airport and arrested after he flew his glider over a nuclear power facility and circled in a nearby area.

The H.B. Robinson nuclear power plant (the “Robinson Plant”) is a nuclear facility located in Hartsville, S.C., near Lake Robinson. The Robinson Plant is operated by Duke Energy Progress, Inc., a regulated public utility that generates, transmits, distributes, and sells electricity in North and South Carolina. (Am. Answer ¶ 2, ECF No. 124.) Nuclear facilities, like the Robinson Plant, are licensed by the Nuclear Regulatory Commission (NRC), which comprehensively regulates their security. (See Id. at ¶ 26; 10 C.F.R. § 73.55.) The Duke Defendants submitted documents, including several submitted under seal, showing that the agency monitors the security of the Robinson Plant and provides guidance addressing a range of potential threats, including those related to aviation. (See, e.g., ECF No. 167 (sealed documents filed in support of Duke Defendants’ motion for summary judgment).)

Mr. Fleming’s July 26, 2012 flight originated at “Bermuda High Soaring, ” a soaring airfield and flight training facility located in Lancaster County, near Jefferson, South Carolina. (Fleming Dep., ECF No. 135-5 at 25:1-4.[2]) Mr. Fleming intended to fly from Bermuda High Soaring to Asheboro, North Carolina, then to Dillon, South Carolina, then to Winnsboro South Carolina, and then back to Bermuda High. (See ECF No. 135 8 at 1.) Mr. Fleming left Bermuda High Soaring at 12:41 p.m., but the weather conditions were not conducive to his original flight plan, and just after 4:00 p.m., while in the vicinity of Darlington, South Carolina, he decided to return to Bermuda High Soaring. (Id.) He proceeded north of Hartsville and then headed southwest toward Lake Robinson in an attempt to find a thermal pattern that would allow him to gain altitude. (Id.) It was at this point that he passed over the Robinson Plant. (Id.)

According to Mr. Fleming, his glider made a single pass over the facility, but did not fly directly over the dome of the reactor. (See ECF No. 144-25 at 37:5-38:25 (describing the flight path).) An examination of the flight recorder in his glider confirmed this testimony and indicated that the glider remained in an excess of 1, 000 feet over the facility as it made its pass. (See ECF No. 144-11 at ¶ 9; ECF No. 144-26 (illustration showing the horizontal flight trace from Fleming’s flight recorder).) The glider’s pass over the Robinson Facility lasted less than two minutes, and it proceeded several miles away from the plant toward the east side of Lake Robinson where it slowly gained altitude by a normal mode of flight for a glider, which involved circling or “thermalling” “in a rising column of air, much the way a buzzard constantly turns to stay aloft on a summer day.” (ECF No. 144-11 at ¶¶ 10-11.)

It does not appear that, at any time relevant to this case, there were any FAA-imposed airspace restrictions over or around the Robinson Nuclear Plant, or anything that could accurately be described as a “no-fly zone”. (ECF No. 144-10 at ¶ 5, ECF No. 144-11 at ¶¶ 6-7.) Nor does it appear from the record that Mr. Fleming violated any FAA regulations during his flight on July 26, 2012. (ECF No. 144-11 at ¶ 5.) The FAA had issued a Notice to Airmen (NOTAM), which read as follows:

In the interest of national security and to the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants (nuclear, hydro-electric, or coal), dams, refineries, industrial complexes, military facilities and other similar facilities. Pilots should not circle as to loiter in the vicinity over these types of facilities.[3]

Mr. Fleming was aware of this NOTAM on July 26, 2012; however, he and Plaintiff’s expert witnesses characterize the NOTAM as “advisory” and maintain that thermalling, the means by which a motorless glider climbs and maintains altitude, should not be considered “loitering.” (ECF No. 144-34 at 78:12-79:13; ECF No. 144-11 at ¶ 12.) Plaintiff also submitted some evidence suggesting that the FAA has clarified that thermalling is not the same as “loitering.” (See ECF No. 144-10 at ¶¶ 10-11; ECF No. 144-11 at ¶¶ 12-13.) For purposes of these summary judgment motions, the Court assumes that Mr. Fleming’s flight was legal, and the evidence largely supports that conclusion.

Security personnel employed by Duke at the Robinson Plant observed Mr. Fleming’s glider pass over the facility and then begin to circle in a nearby area. The security personnel considered the continued presence of the aircraft in the vicinity of the plant to be suspicious, and initially believed that the glider was a drone. (ECF No. 135-3 at 106:23-107:20, 164:25-165:14; ECF No. 135-4 at 42:11-13, 45:14-17.) They contacted local law enforcement and the local airport, and also spoke with the Federal Aviation Administration (“FAA”) and Shaw Air Force base (“Shaw”) regarding the suspicious aircraft. (ECF No. 135-3 at 129:5-10, 154:8-12; ECF No. 135-4 at 22:7-23:17, 35:18-24; ECF No. 135-9.) Neither the FAA nor Shaw could pick up the aircraft by radar. (ECF No. 135-11 at 11:5-15; ECF No. 135-4 at 23:18-25; ECF No. 135-10 at 81:4-17.)

The arrest warrant alleges that Mr. Fleming flew “very close to the nuclear plant dome in a ‘no-fly zone.’” (ECF No. 144-7.) Various Duke employees have given estimates of Mr. Fleming’s altitude that are inconsistent with the records from the flight recorder. In one of the most extreme instances, the assistant manager of the Hartsville Airport reported that Duke security personnel “stated that the glider had flown only 100 feet above the dome of the reactor ….” (Aff. of Wendy Griffin ¶ 11, ECF No. 144-2.) It is not entirely clear what the Duke Defendants conveyed to the Darlington Defendants regarding Mr. Fleming’s altitude, but construing, as it must, the facts in the light most favorable to the non-moving party, the Court assumes that the report did not precisely or accurately relay the Mr. Fleming’s true altitude and that the Duke Defendants reported to the Darlington Defendants that Mr. Fleming had flown very close to the dome of the reactor.

Law enforcement also appears to have been operating under the inaccurate assumption that the airspace in and around the Robinson Plant was a restricted “no-fly zone.” It is not entirely clear where the Darlington County Sherriff’s Office got this idea. Plaintiff has speculated that the Duke Defendants and their agents also held this inaccurate belief and have suggested that they conveyed it to law enforcement. However, there is only the most speculative evidence that anyone from Duke actually held this belief. (See ECF No. 144-20 at 3 (Sheriff Byrd implying in a news interview that Duke and local and federal officials shared a false assumption that the airspace over the plant was restricted[4]).) Plaintiff has not directed the Court to any evidence that anyone from Duke made this claim to local law enforcement.[5] Numerous witnesses denied hearing anyone from Duke convey to state law enforcement that there was a “no-fly zone” over the Robinson Nuclear facility or that Mr. Fleming had flown into a “no-fly zone.” (See ECF No. 144-6 at 169:2-22; ECF No. 144-30 at 169:2-10.) Additionally, Mr. Fleming denied hearing anyone from Duke assert that he had entered a “no-fly zone” or otherwise mention a “no-fly zone.” (ECF No. 135-5 at 55:17-24.) Indeed, when asked about how he and his deputies came to believe that the airspace over the Robinson Nuclear Plant was restricted, Sherriff Byrd testified as follows:

Q. So how did you or your deputies come to believe that there was this restricted airspace over the nuclear plant?
A. I think that was an assumption that we arrived at based on what we considered common sense and the national response since 9/11.

(ECF No. 144-16 at 96:10-13.)

After receiving the report from Duke, the Darlington Defendants engaged in what can only be described as a heavy-handed response. As many as seventeen (17) vehicles carrying local law enforcement and two police dogs converged on the Hartsville Airport. (Aff. of Wendy Griffin ¶ 10, ECF No. 144-12.) Deputies of the Darlington County Sheriff’s office advised the airport’s assistant manager, Wendy Griffin, that they were “commandeering the airport” and requested that she order Mr. Fleming’s glider to land. (Id. at ¶¶ 3-4; ECF No. 144-38 at 259:2-5.) Ms. Griffin responded that she did not have the authority to order the pilot of the glider to land as such authority belonged exclusively to the FAA. (ECF No. 144-12 at ¶ 4.) Although she believed that she lacked the authority to give the requested order, Ms. Griffin “felt coerced by law enforcement to cooperate, ” and she conveyed the instruction to Mr. Fleming to land his glider. (Id. at ¶¶ 5-7.)

An incident report from the Darlington County Sherriff’s Office indicates that “officials from the H.B. Robinson Nuclear Plant also arrived on the scene at the airport, ” but it does not indicate what role, if any, these officials played. (ECF No. 144-8.) Ms. Griffin indicated that Duke security personnel arrived, told her that the aircraft had flown a hundred feet over the dome of the reactor and that they wanted to shoot the aircraft down. (ECF No. 144-12 at ¶ 11.) This Duke employee also allegedly told Ms. Griffin that an armed helicopter had been deployed from Chesterfield County. (Id.) Despite these statements, there is absolutely no evidence that anyone from Duke ever attempted to shoot at Mr. Fleming’s glider or that any steps were taken by Duke to seek authorization to shoot at the glider. Moreover, it appears from the record that the helicopter allegedly referenced belonged to Chesterfield County law enforcement, and not to Duke. (See ECF No. 135-9, ECF No. 144-32 at 60:2-24.)

Although he did not believe that he had entered any restricted airspace or otherwise violated the law, Mr. Fleming decided to comply with the instruction and land his glider. (ECF No. 135-5 at 80:1-11.) Once on the ground he cooperated with law enforcement and explained that there was no restricted airspace corresponding to the Robinson Plant on his flight charts. Although these claims were apparently corroborated by Ms. Griffin’s response to law enforcement and by statements made to Sheriff’s deputies by a helicopter pilot for Chesterfield County, (see ECF No. 144-12 at ¶ 12), Mr. Fleming was, nevertheless, arrested by Darlington County Sheriff’s deputies and charged with a breach of the peace, a misdemeanor.[6]

There is substantial evidence in the record that the Darlington County Sheriff’s Department, and not the Duke Defendants, made the decision that Mr. Fleming should be arrested. Captain Joyce Everett of the Darlington County Sheriff’s Office testified:

Q. Was Mr. Fleming arrested for Duke Energy?
A. I don’t know anything about that, him being arrested for someone else. The sheriff’s office doesn’t arrest for - this is for us. I don’t know about nobody else.
Q. Did anyone from Duke ask the sheriff’s office to arrest or detain Mr. Fleming?
A. Not to my knowledge. That ain’t the way the sheriff’s office works.
Q. You weren’t asked by H.B. Robinson personnel to do anything with regard to this incident, correct?
A. I wasn’t.

(ECF No. 135-11 at 86:19-87:8; 91:25-92:2.)

Captain Gary Streett, also of the Darlington County Sheriff’s Office, testified that he made the decision to instruct one of his officers to direct Mr. Fleming to land at the Hartsville Airport. (See ECF No. 135-10 at 21:8-12). He also made the decision that Mr. Fleming should be arrested:

Q. Did you make the determination to arrest Mr. Fleming?
A. I did.
Q. In your training with Duke power, is there anything in that training that indicates how long you should hold something [sic] that you have questions about?
A. No. …holding someone …that we have questions about is normally not a Duke power decision. That’s our decision. That’s a law enforcement matter. Duke power’s concerned with the security and ...

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