Opinion

Keith v. Griffiths

Court
District Court, N.D. Ohio
Filed
Apr 30, 2024
Cited by
0 cases
Authority
More cited than 28.1%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Rita Keith, as Administrator of the ) CASE NO.1:22 CV 1809

Estate of Arthur Keith, Deceased, )

and Individually as the Natural Parent )

and Mother of Arthur Keith, ) JUDGE PATRICIA A. GAUGHAN

Plaintiff )

vs. )

)

)

James Griffiths, ) Memorandum of Opinion and Order

Defendant. )

Introduction

This matter is before the Court upon defendant’s Motion for Summary Judgment.

(Doc. 78). This case arises from the fatal shooting of Arthur Keith by defendant. For the

following reasons, the motion is GRANTED.

Facts

Plaintiff Rita Keith, as Administrator of the Estate of Arthur Keith, Deceased, and

Individually as the Natural Parent and Mother of Arthur Keith, filed this Complaint against

defendant James Griffiths, in his individual capacity and capacity as an employee of the

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Cuyahoga Metropolitan Housing Authority. The Complaint alleges that plaintiff’s son, Arthur

Keith (“Keith”), was shot and killed on November 13, 2020, by defendant, an officer with the

Cuyahoga Metropolitan Housing Authority Police Department (“CMHA PD”), at the King

Kennedy Housing Complex located in Cuyahoga County, Ohio.

The undisputed facts establish that defendant has been employed as a police officer

with the CMHA PD since 1992. On November 12, 2020, CMHA PD received a call from a

male reporting that a black van with tinted windows, suspected of being involved in the recent

discharge of a firearm and illegal activity, was parked in a parking lot near 6201 Haltnorth, a

CMHA property.1 Officers were dispatched to the location, but the van was not located. On

November 13, 2020, CMHA PD received another call, believed to be from the same male

who had called the previous day, again reporting that a black van with tinted windows,

suspected of being involved in illegal activity, was parked in the same parking lot. CMHA

PD Officers Robert Lenz and defendant and Sergeant Paul Styles responded to the call.

(CMHA PD Chief of Police Andres Gonzalez decl.). Defendant arrived on the scene,

followed by Sergeant Styles and Officer Lenz. Defendant proceeded to the front, passenger

side of the vehicle. The other officers went to the opposite side. A male, later identified as

Keith, exited on the passenger side. Styles and Lenz heard defendant yell that Keith had a

gun. Then they heard gunshots. Keith ran a short distance and fell to the ground. Styles

arrived first to his prone body and observed a gun which was then secured, photographed, and

examined by the Cuyahoga County Regional Forensic Science Laboratory. The DNA on the

gun matched only Keith’s DNA.

1 Audio of the dispatch calls has been filed. (Doc. 77).

2

Members of the Cleveland Division of Police Use of Deadly Force Investigation Team

(“UDFIT”) responded to the scene and interviewed Sergeant Styles and Officer Lenz. They

then did further investigation, including follow-up interviews and an interview of the

defendant. Styles told the UDFIT that he received a call for a male suspect with a firearm in

the area of 6201 Haltnorth in a vehicle with an out-of-state plate. He spotted the vehicle in the

parking lot. Defendant and Officer Lenz also arrived on the scene. Styles was at the rear of

the suspect vehicle while defendant was at the front. Styles heard defendant yell, “Drop the

gun, drop the gun!” Styles heard several gunshots, but did not know who fired the shots. He

saw the suspect run south and then west through the courtyard. All three officers pursued the

suspect on foot. When Styles rounded the corner, he saw the suspect lying supine on the

ground. The suspect’s Glock model 19 was on the ground near the suspect’s right hand. After

observing that the suspect had been shot, Styles notified CMHA radio to send EMS and

additional units. Defendant secured the suspect’s firearm. (Doc. 81 Ex. 2).

Styles provided a videotaped interview to the UDFIT on December 11, 2020. A

summary of the interview provides that Styles stated he was closer to the back of the van

when he heard defendant state, “He’s got a gun!”2 Styles heard gunshots, a slight pause, and

more gunshots. Styles did not see who was shooting. Styles then saw Keith lying prone on

the ground near a tree stump. Styles ran over to Keith and saw a black firearm on the ground

near Keith’s right hand. After requesting EMS, and finding no pulse on Keith, defendant

secured the firearm which looked like a Glock with an extended magazine. Lenz started

2 Upon viewing the videotaped interview, Sgt. Styles said that he heard defendant

say, “Stop, don’t move, gun.” This was followed by multiple shots.

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administering first aid, and residents began arriving on the scene who were hostile towards

the police officers. (Doc. 81 Ex. 11).

Styles testified at a deposition that when he walked up to the vehicle he did not see

Keith holding a gun, did not see Keith pointing a gun at defendant, and did not see a gun

when he was chasing Keith. (Styles depo. at 84).

Styles also submitted a declaration with the Motion for Summary Judgment. He states

that he arrived on the scene after defendant and before Lenz. The van was backed into the

parking spot and was running. Just behind the back bumper of the van was a sidewalk.

Defendant’s vehicle was stopped beyond the passenger side of the van which had tinted

windows. Defendant approached the van from the passenger side and Styles from the driver’s

side. Lenz was behind Styles. Once they confirmed no one was in the driver’s seat or front

passenger seat, Styles moved toward the backseat. It was difficult to see because of the tinted

windows, but Styles could see a silhouette of a person in the back passenger side move

forward. The van had a sliding door and it was opening. He heard defendant say, “Stop, don’t

move” and “gun.” He then heard shots fired but could not see who had fired or if someone

had been shot. As he was making his way around the van toward the other side, defendant

yelled, “He has a gun, he has a gun.” Styles did not see a suspect, but then looked down the

sidewalk and saw a male wearing blue running toward 6201 Haltnorth. Styles started to run

after him, but lost sight of him as he rounded the corner. When he peered around the corner of

the building, Styles saw the suspect on the ground in front of 6201 Haltnorth by a tree. Styles

was the first to reach the suspect where he had fallen and observed his gun on the ground a

few inches from his right hand. Defendant arrived next and also saw the gun. The two secured

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the suspect in handcuffs and when Styles realized he had been shot, he called EMS. Lenz

arrived and administered aid. A very angry and hostile crowd gathered quickly. While Styles

watched the crowd, defendant secured the gun. (Styles decl.)

The on-scene statement that Officer Lenz provided to the UDFIT stated that defendant

and Styles were the first to arrive on scene. Lenz exited the zone car and walked up to the

suspect vehicle. He heard defendant yell, “Drop the gun, drop the gun!” He then heard

several gunshots, but did not know who fired the shots. He saw the suspect run south and then

west through the courtyard. All three officers pursued the suspect who he then saw lying

supine in the courtyard and not responding to verbal commands. First aid was administered.

(Doc. 81 Ex. 2).

Lenz’s December 11, 2020 videotaped interview stated that he heard defendant yell

“show me your hands,” and that “moments later gunshots happened.” (Doc. 82).

Lenz testified at deposition that he first saw Keith when he was fleeing and he did not

see him with a gun. (Lenz depo. at 59).

In his declaration, Lenz states that defendant arrived first on the scene, followed by

Styles, and then himself. The van had very dark tinted windows and the officers were unable

to see inside, even with the spotlight. Defendant approached the van from the passenger side

and Styles approached from the driver’s side. The van was backed in and running. As he

walked toward the van, Lenz was watching someone in a red and white covering walk away

from the van that matched the description of the dispatch call. He heard a door pop and

defendant give the commands that included “show me your hands.” Then he heard three or

four shots fired and saw the suspect wearing a blue hoodie and jeans flee south toward 6201

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Haltnorth. Styles was the first to chase the suspect followed by defendant. Lenz started to run

but then returned to the van to make sure there were no additional occupants. Lenz heard

Styles call for EMS over the radio. Lenz grabbed his medical bag and ran to the location

where the suspect was lying on the ground. He saw defendant holding Keith’s gun. When he

was rendering medical aid, a growing crowd of angry and hostile residents had gathered and

were shouting at the officers. Since they were in an open area, it was necessary to secure the

weapon. (Lenz decl.)

The UDFIT interviewed defendant on February 12, 2021. A brief synopsis3 of the

interview provided by the interviewing officers states that defendant responded to the area in

connection with a male in a dark colored vehicle that was involved in an aggravated robbery,

felonious assault shooting that occurred earlier in the week. Upon his arrival, defendant

spotted a dark colored vehicle with out-of-state license plates. The vehicle involved in the

prior crime also had out-of-state plates. Defendant parked his marked police car near the

suspect vehicle and as he was approaching it, he observed a male exiting. Defendant ordered

the male to show his hands and defendant observed the male holding a firearm in his left hand

while attempting to close the vehicle door with his right hand. Defendant ordered the male to

drop the gun but the male ran away from the vehicle. Defendant chased the male and the male

turned towards defendant with the firearm still in his hand. The male then raised the firearm

3 Plaintiff filed a Notice of Manual Filing of Exhibits which contains the video

recorded interview of defendant. Defendant objected to consideration of the

exhibits on the basis that the notice was filed after the deadline for filing the brief

in opposition, the notice does not identify the videos contained therein, and the

videos have not been authenticated in accordance with Fed. R. Civ. P. 56. The

objection is moot because the video provided by plaintiff lacks an audio

component and, therefore, the Court was unable to consider it.

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towards defendant. Defendant was in fear of his life and fired his service weapon at the male.

The male continued to run a short distance and then fell to the ground. Defendant approached

the male and observed the suspect’s weapon on the ground near him. Defendant kicked the

firearm away from the male. Defendant then handcuffed the suspect. (Doc. 81 Ex. 13).

At deposition, defendant testified that after Keith exited the van, he “ma[de] three to

four steps” and then “turned and raised his left hand up at me as if he was going to shoot. I

felt I was going to get shot at that moment and that’s when I fired.” (Griffiths depo. at 197).

Defendant’s declaration further states his version of the events. He heard a dispatch

regarding a suspicious black van with tinted windows and out of state license plates suspected

of criminal activity which involved a shooting that had occurred a few days earlier. He, Sgt.

Styles, and Officer Lenz responded to the call. He and the other officers were in full CMHA

PD uniforms and individually operating CMHA PD marked units. Defendant was the first

officer to arrive in the parking lot. He pulled past the suspicious van, which was backed into a

parking spot, onto the passenger side of the van. Sergeant Styles pulled in after defendant and

stopped his unit one or two spots away from the van on the driver’s side. Officer Lenz pulled

in behind Styles. Defendant exited his vehicle and initially walked toward the sidewalk one

car from where the van was parked. He saw Styles do the same thing on the driver’s side of

the van. When defendant and Styles arrived at the sidewalk, Styles was going to approach the

driver’s side of the van and defendant was going to approach the passenger side. As defendant

walked up the passenger side of the van, he could not see inside the van due to the tinted

windows. Defendant tried to look through the front passenger window but could not see in

the van. He also tried to look through the front windshield but could not see in the van.

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Because the van was running, defendant knocked on the front passenger door window

and announced “police” but received no response. Defendant then flicked the handle on the

front passenger door. He found it unlocked and opened it. Defendant was then able to confirm

that there were no occupants in the driver’s seat or front passenger seat. He saw a key fob on

the front, center console of the van. Defendant then turned and looked at the back seat of the

van from the front passenger door. He first looked at the seat behind the driver’s seat and

there was no one in that seat. Defendant then looked over at the right back passenger seat and

saw a figure wearing a blue shirt move closer to the sliding door on the passenger side of the

van attempting to hide or conceal himself. At that point defendant announced “police” and

“let me see your hands.” There was no response from the occupant.

Defendant then heard a click and the back passenger sliding door started to open. As

the door started to slide open, defendant could see that the suspect, later identified as Keith,

had his right hand on the door as if guiding it open and he was holding a gun in his left hand

straight across his stomach. Defendant yelled at Keith to “drop the gun” several times so that

Styles would know that Keith had a gun. Keith did not comply with the command to drop the

gun and held on to it. At that point defendant had his gun drawn.

As defendant was yelling “drop the gun,” Keith started to slide out of the van and

defendant tried to back away but his back was against the inside of the open front passenger

door. Keith exited the van and took three or so steps toward the sidewalk and the back

bumper of the car parked next to the van. As he was moving toward the sidewalk, he turned

sideways half facing defendant, raised his left arm, and pointed his gun at defendant.

Defendant felt that Keith was going to shoot him and feared for his life. Defendant fired his

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weapon. Keith then started running south and Styles ran after him. After a few seconds,

defendant followed Styles on foot in the direction that Keith had fled.

Styles was the first officer to reach the area where Keith had fallen to the ground and

saw the gun in front of Keith. When defendant saw the gun, he stepped on it and moved it out

of reach for officer protection. Defendant then assisted Styles in handcuffing Keith.

Defendant reached for Keith’s left arm from underneath him and secured him. He realized

that Keith had been shot when he saw blood.

As this was happening, a growing crowd of hostile and angry residents started to

gather. For the officers’ safety and protection and to prevent anyone from grabbing the gun

and using it on the officers or taking it, defendant secured it. In picking up the gun, defendant

was careful to hold it in a manner so that he did not touch the trigger or the slide or the

interior portion of the magazine. Once Chief Gonzalez and Commander Burdyshaw arrived,

the Chief ordered Burdyshaw to secure the weapon. Defendant followed Commander

Burdyshaw to his CMHA PD vehicle, and he secured the weapon in his trunk where it was

ultimately photographed. (Griffiths decl.).

Chief Gonzalez’s declaration provides that when he arrived on the scene with

Commander Burdyshaw, he observed defendant holding a non-CMHA PD weapon which

defendant confirmed was Keith’s and found on the ground where he had fallen. Gonzalez

ordered Burdyshaw to secure the weapon and it was immediately taken to the trunk of the

police vehicle. (Gonzalez decl.) Burdyshaw testified that he took possession of the firearm

from defendant and secured it in the trunk. (Burdyshaw depo. 22-28).

Crime scene reports include photographs where Keith fell to the ground, a key fob, a

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plastic bag containing suspected marijuana, and swabs of the suspected blood. (Doc. 81 Ex.

9). There are no crime scene photos of a gun near the body of Keith at the location in the

courtyard where he fell to the ground. Cleveland police photographs of the crime scene

include a Glock 9mm with an extended magazine identified as the suspect’s weapon and

photographed in the back of an unmarked CMHA police vehicle. (Sgt. David Borden depo. at

146, Ex.3).

A DNA Laboratory Examination Report states the conclusions of the examination of

the Glock model 19. (Griffiths decl. Ex. B). The laboratory report found a match between the

grip and trigger areas, the surface of the slide, and surface of the magazine and Keith. It

found no statistical support for a match between these areas and defendant or Burdyshaw.

(Id.).

Plaintiff identified two juvenile eyewitnesses4 - Jahzir Melton and Demarion Starr.

A Cleveland Police Officer dispatched to the scene on November 13, 2020, reported:

A young male juvenile by the name of (Jahzir Milton5) stated to me “I saw

everything.” Jahzir stated that he was taking out the trash when he saw 3 police cars

pull into the parking lot. Jahzir then stated that when he was walking back from the

trash dumpster, he saw the male later identified as Arthur Keith get out of his vehicle

and tried to run and that when the police officers shot him 2 times. Arthur ran pass

[sic] his apartment and around the corner.

(Doc. 81 Ex. 17). Melton’s deposition was taken. When asked whether he saw Keith turn and

point his gun at the police officer, he responded, “No.” He testified that he did not know

Keith had a gun, and that he was shot right outside the passenger door of his vehicle and he

4 A third juvenile, Rayshawn Stewart, was previously excluded as a witness.

5 The witness’s name is spelled Melton at deposition.

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was trying to run away. He also testified that he could not see Keith’s left hand, but could

only see Keith from the shoulders up. He could not see what was in his left hand, and he did

not see what was in Keith’s hands as he was running. (Doc. 63 at 79-89).

Demarion Starr was interviewed by members of the Cleveland police homicide unit in

March 2021. (Doc. 81 Ex. 16). He stated that he saw CMHA police approach Keith’s vehicle

in the parking lot. The CMHA police officer was on the drivers side of the vehicle. As Keith

exited the passenger side, the CMHA officer had his firearm out and pointed at Keith. Keith

turned away from the officer and started to run around the front of the vehicle. Starr heard

several gunshots and the officer shot Keith in the back. He did not see Keith with a firearm in

his hand. (Doc. 81 Ex. 16). Starr’s deposition was taken. As discussed below, his testimony

was inconsistent with the other documented evidence at the scene. Further, he testified that

he did not see Keith holding a gun, but he could not see Keith’s hands at all times. (Doc. 64

at 98).

Monica Hatcher, an adult, was also interviewed after the incident. She told police that

she observed Keith running from a CMHA police officer who yelled at him to stop. She heard

gunshots and Keith fell down. She did not see Keith with a firearm. (Doc. 81 Ex. 16).

Erica Armstrong, M.D. conducted the autopsy and issued her report. (Doc. 81 Ex. 3).

The report states in pertinent part:

EXTERNAL AND INTERNAL EVIDENCE OF RECENT INJURY:

Trunk

1. A gunshot wound is of the postero-lateral left upper trunk.

Entrance wound: The wound consists of a ¼" in diameter defect with eccentric pink

marginal abrasion that measures up to ¼" in width. The wound is located 54 ½" from

the left heel and 13" from the posterior midline. There is no fouling or stippling.

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Path: After perforating the subcutaneous tissues, the gunshot wound perforates the

posterior left 7" rib (with inward beveling and fracture fragmentation), left upper lobe

of lung (through and through), pericardial sac, antero-lateral left ventricle (with

transaction of proximal left anterior descending coronary artery), septum, anterior

right ventricle, pericardial sac, right para-sternal soft tissues of intercostal space 3-4

(with grazing of the sternum), and the overlying subcutaneous tissues. There is acute

hemorrhage along the wound track. One thousand one hundred and fifty millimeters

and 600 ml of liquid and clotted blood are within the right and left pleural cavities,

respectively. Minimal residual blood remains within the pericardial cavity.

Exit wound: The exit wound is located on the right chest. The wound consists of a

¾" x ¼" Irregular defect located 52° from the right heel, 2 ½" from the anterior

midllne, and 1" superior to the right nipple.

Course and direction: The gunshot wound proceeds from back to front, rightwards,

and downwards.

(Id.). Dr. Armstrong’s deposition was also taken. 6

The Complaint asserts four claims for relief. Count One alleges excessive force under

42 U.S.C. § 1983. Counts Two, Three, and Four assert state law claims- survivorship action,

wrongful death, and loss of consortium.

This matter is now before the Court upon defendant’s Motion for Summary Judgment.

Standard of Review

Summary Judgment is appropriate when no genuine issues of material fact exist and

the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600,

8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine

6 Following the Cleveland Police investigation, the Ohio Attorney General also

reviewed this matter and presented it to the Grand Jury which issued a No Bill

finding that defendant acted reasonably. (Doc. 67 Ex.34).

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issues of material facts rests with the moving party:

[A]party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its

motion, and identifying those portions of “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits,” if any, which it believes demonstrates

the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its

resolution will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242,

248 (1986).

Accordingly, the nonmoving party must present “significant probative evidence” to

demonstrate that “there is [more than] some metaphysical doubt as to the material facts.”

Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may

not simply rely on its pleading, but must “produce evidence that results in a conflict of

material fact to be solved by a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th

Cir. 1995).

The evidence, all facts, and any inferences that may permissibly be drawn from the

facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image

Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla

of evidence in support of the plaintiff's position will be insufficient; there must be evidence on

which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

Summary judgment should be granted if a party who bears the burden of proof at trial

does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d

937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is

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“merely colorable” and not “significantly probative,” the court may decide the legal issue and

grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).

Discussion

(1) Excessive Force (§ 1983)

Plaintiff alleges that defendant used excessive force in violation of the Fourth

Amendment when he shot Keith multiple times while Keith “was unarmed at the time, and

running away from Officer Griffiths, striking Mr. Keith in the back, and killing him.” (Doc. 1

at 15). Defendant maintains that he is entitled to qualified immunity.

The Sixth Circuit has recently reiterated:

The defense of qualified immunity protects officials when “their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818(1982). When it

is asserted, the plaintiff has the burden of showing that the defendant is not entitled to

qualified immunity. Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). Applying

qualified immunity requires asking: (1) whether an official violated a statutory or

constitutional right and (2) whether that right was clearly established. Pearson v.

Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). When the

answer to either of those questions is “no,” the other need not be addressed. Price v.

Montgomery County, 72 F.4th 711, 723 (6th Cir. 2023) (citing Pearson, 555 U.S. at

236, 129 S.Ct. 808).

Mosier v. Evans, 90 F.4th 541, 546 (6th Cir. 2024). The contours of a claim involving deadly

force by a police officer is well-established:

The Fourth Amendment prohibits police from using excessive force while making an

arrest, investigatory stop, or other type of seizure. See Graham v. Connor, 490 U.S.

386, 394-395 (1989). A use of force must be “objectively reasonable” to be

constitutional. Id. at 397. Objective reasonableness is “judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (quoting

Graham, 490 U.S. at 396). It allows for the fact that “police officers are often forced

to make split-second judgments” about the amount of force necessary “in

circumstances that are tense, uncertain, and rapidly evolving.” Mullins, 805 F.3d at

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766 67 (quoting Graham, 490 U.S. at 396-97.

Under the Fourth Amendment, an officer's use of deadly force is objectively

reasonable only when there is probable cause to believe that the suspect poses an

immediate threat to the officer or to others. Tennessee v. Garner, 471 U.S. 1, 11

(1985); Graham, 490 U.S. at 396. To determine whether such probable cause exists,

we consider “the facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or attempting

to evade arrest by flight.” Graham, 490 U.S. at 396. Our precedent establishes that the

question of whether a suspect posed an immediate danger is dispositive: where the

suspect poses no immediate threat to the safety of an officer or others, the use of

deadly force is unreasonable and violates the Fourth Amendment. Foster v. Patrick,

806 F.3d 883, 887 (6th Cir. 2015).

Raimey v. City of Niles, Ohio, 77 F.4th 441, 448 49 (6th Cir. 2023). See also England v. City

of Columbus, Ohio, 2023 WL 3756177 (6th Cir. June 1, 2023) (citing Lee v. Russ, 33 F.4th

860, 863 (6th Cir. 2022) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)) (“The use of

deadly force is objectively unreasonable unless an officer has probable cause to believe a

suspect poses an immediate threat of serious physical harm to the officer or others.”); Roberts

v. Cruz, 2023 WL 2181145, at *3 (6th Cir. Feb. 23, 2023) (“Broadly speaking, the Fourth

Amendment prohibits the use of excessive force, and a determination of whether a particular

use of force was excessive turns on its reasonableness under the totality of the circumstances.

The relevant although not exhaustive circumstances for this analysis include the severity

of the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” ) (citations omitted).

Thus, the issue is whether, drawing all reasonable inferences in the plaintiff's favor,

there is probable cause to believe that Keith posed an immediate threat to defendant. In

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particular, the question is whether there is an issue of fact as to whether Keith had a gun and

pointed it toward defendant.

Plaintiff maintains that the issue of whether defendant’s use of deadly force in

shooting Keith was objectively reasonable is a jury question. Plaintiff asserts that the

eyewitness accounts establish that Keith never pointed a gun at defendant, Keith was never

seen running with a gun, Keith was shot in the back while fleeing, and a gun was not

observed on the ground where Keith fell after being shot. Plaintiff asserts that the testimony

of the medical examiner and the autopsy report is consistent with the eyewitness accounts that

Keith was shot in the back as he was attempting to flee.

Defendant argues that he was the single eyewitness to the shooting, and Melton and

Starr are unable to contradict his testimony. Moreover, defendant’s testimony is consistent

with all the physical and forensic evidence which plaintiff has not refuted with an expert. Nor

has plaintiff contradicted the testimony of Styles and Lenz regarding the fact that they heard

defendant yell that Keith had a gun and commanded him to drop it. Plaintiff has also not

contradicted the evidence that a gun was first seen by Styles just inches away from Keith’s

hand when he first reached Keith. Nor does plaintiff dispute the scientific evidence that

confirmed Keith’s DNA was on the recovered gun.

For the following reasons, the Court finds no issue of fact to preclude the granting of

summary judgment.

Defendant’s evidence shows that he was the only one of the three officers to witness

the shooting as Officer Lenz and Sgt. Styles were on the opposite side of the van and admitted

that they did not see who fired the gunshots. The on-scene statements of Styles and Lenz

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both establish that they heard defendant alerting them that Keith had a gun, followed almost

immediately by gunshots. Styles heard defendant yell, “Drop the gun, drop the gun!” Styles

heard several gunshots, but did not know who fired the shots. Lenz heard defendant yell,

“Drop the gun, drop the gun!” He then heard several gunshots, but did not know who fired the

shots.

Defendant correctly maintains that Sixth Circuit precedent establishes that when the

defendant police officer is the sole witness, summary judgment is appropriate where there is

no direct evidence to rebut the defendant’s version of the events. In Burnette v. Gee, 137

Fed.Appx. 806, 809 (6th Cir. 2005), the court recognized:

where the officer defendant is the only witness left alive to testify, the award of

summary judgment to the defense in a deadly force case must be decided with

particular care. See Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.1994) (The

“defendant knows that the only person likely to contradict him or her is beyond reach

.... [s]o a court must undertake a fairly critical assessment of the forensic evidence, the

officer's original reports or statements and the opinions of experts to decide whether

the officer's testimony could reasonably be rejected at trial.”).

Nonetheless,

The district court concluded that there was no conflicting testimony on these issues

because Gee and Wilson were the only two people to witness the event and because

Wilson, now deceased, cannot offer a competing version of facts. Consequently, the

district court accepted Gee's version of the shooting as true and decided that Gee did

not violate Wilson's rights. Unfortunately for the appellants, no direct evidence exists

to rebut Sheriff Gee's version of the events. Furthermore, even considering the

circumstantial evidence presented by Appellants in a light most favorable to them,

there is no reasonable basis for overturning the district court's finding that Wilson

reached for or raised his rifle and struggled with Sheriff Gee over the weapon, and that

as a consequence, Sheriff Gee reasonably feared for his life when he shot Wilson. We

believe that the district court's thorough analysis of the facts supports its grant of

summary judgment in favor of Sheriff Gee. See Plakas, 19 F.3d at 1146 47.

According to defendant’s version of the events, Keith brandished his Glock with an

17

extended magazine, defied defendant’s commands to drop the gun, took several steps as

though he was going to run, and then turned and pointed his weapon at defendant who fired

his weapon at Keith in self-defense. Defendant maintains that under these facts, Keith did not

have a Fourth Amendment right to be free of deadly force, and defendant’s actions were

justified under the rapidly evolving, undisputed circumstances. This Court agrees and finds

that defendant’s use of deadly force was objectively reasonable because Keith posed an

immediate threat to defendant’s safety.7 Plaintiff fails to raise an issue of fact on the following

bases.

(a) eyewitnesses

Plaintiff asserts that “several eyewitnesses to the shooting reported that Mr. Keith did

not have a gun in his hand when he exited the Pacifica, nor did they see a gun in Mr. Keith’s

hands as he was running from Officer Griffiths.” (Doc. 81 at 7-8).

Initially, while plaintiff refers to the interview of Rayshawn Stewart, this Court has

previously excluded this individual as a witness for purposes of summary judgment and/or

trial. (Order, Nov. 30, 2023).

Plaintiff also discusses a report made by Cleveland Police Officers in March 2021

which summarizes statements made by Monica Hatcher to the police. Neither the officers nor

7 Because the question of whether a suspect posed an immediate danger is

dispositive to the inquiry, the Court need not reach the two other factors. Even if

it did, those factors are met as well. As for the severity of the crime, it is

undisputed that the CMHA PD received two 911 calls from the same caller

reporting the location of the van that was suspected of being involved in the

recent discharge of a firearm and criminal activity. It was believed that the

occupant of the van might have possession of a firearm. As to the final factor, it is

undisputed that Keith was actively resisting arrest or attempting to evade arrest by

flight.

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Hatcher were deposed. The report conveys that Hatcher told police that she observed Keith

running from a CMHA police officer who yelled at him to stop. She heard gunshots and Keith

fell down. She did not see Keith with a firearm. (Doc. 81 Ex. 16). However, as defendant

points out, the report shows that Hatcher did not witness the critical events. The report states:

Monica Hatcher stated that she observed Arthur Keith running from the police officer

from across the street. Monica Hatcher pointed to 2573 Bundy Drive. Monica Hatcher

stated Arthur Keith and the Officer were running towards her from the north side of

the building located at 2573 Bundy Drive, across the Bundy Ave. and Arthur Keith

fell in front of 6201 Haltnorth.

Further investigation revealed that the incident did not start across the street where

Monica Hatcher stated she observed Arthur Keith running from the officer. The

incident actually started in the parking lot north of 6201 Haltnorth.

(Id). Thus, aside from the document being hearsay, it concludes that Hatcher did not witness

the critical moments of the incident and that the incident occurred in a different area/parking

lot.

This leaves the two juvenile witnesses Jahzir Melton and Demarion Starr. Defendant

maintains that the deposition testimony of these witnesses establishes that neither witnessed

the crucial events of November 13, 2020. For the following reasons, this Court agrees.

As set forth above, Melton reported to a Cleveland Police Officer on the day of the

incident what he had observed. Melton did not mention whether or not he saw Keith with a

gun. (Doc. 81 Ex. 17). Melton’s deposition was taken in September 2023. He testified in

relevant part:

Q. Where was Mr. Keith when the shots were fired?

A. Basically still trying to get out the van door. He trying to run and get

out, but he couldn’t even turn, for real. That’s before he started

shooting.

***

Q. Were your eyes on Officer -- on the officer or the officers when Mr. Keith exited,

19

or were they on Mr. Keith?

A. My eyes was on the van door to see like if somebody like -- then I heard them yelling

something, then that's when I seen somebody coming out, and it was Arthur, and that is when

he tried to run. That is when he started shooting.

Q. Did you see Arthur turn and point his gun at the police officer?

A. No.

Q. Did you know that Arthur had a gun?

A. No.

Q. Did you know that when Arthur ran and fell by the tree, that his gun was right in front of

his hands?

A. No.

***

Q. Did you see where Arthur fell?

A. Yes.

Q. When did you see him fall?

A. So when they starting shooting, boom, then that is when - - like before he got by like by

the doorstep, I had heard- - I had run in the house because I was scared...

***

Q. Okay. When you got [back] outside, was Arthur already - - did he- - was Mr Keith already

on the ground?

A. Yes.

***

Q. So you believe he was shot right outside the passenger door?

A. Yeah.

***

Q. So your testimony is Mr. Keith was standing right by the door when he was shot?

A. He wasn’t standing, he was running away, trying to run away.

***

A. When he got out the van, he tried to run. That is when the officer started shooting.

Q. Could you see Arthur’s left hand?

A. No.

Q. You could not?

A. You really only see like all this. (Indicating).

Q. You only saw from you only saw Arthur from the shoulders up?

A. Yeah.

Q. Because of the distance and the cars?

A. Yeah.

Q. So you couldn’t see what was in his left hand, right?

A. Right. No.

Q. No? And when you heard the shots fired, did you immediately run in the house?

A. Yeah. Not like like I seen it, like boom, boom. And then when everybody start running

and stuff, that’s when I ran in the house

Q. Okay.

20

A. -- because I was scared.

Q. So you didn’t see what was in Arthur’s hands when he was running, did you?

A. No. Like

Q. You said no?

A. No.

***

Q. So after you heard the shots- - I want to make sure. Before you heard the shots, you said

that all you could see was from the shoulders up of Mr. Keith, correct?

A. Because he was getting out the van.

Q. Okay. So you could not see his hands, correct?

A. Uh-uh.

Q. Is that correct?

A. Yes.

Q. Okay. And then after the shots were fired and he started to run, you ran in the house --

Q. -- because you were afraid, correct?

A. Yes, came back out.

Q. And then after it was over and Mr. Keith had ended up in the grass by the tree in the front

of 6201 Haltnorth, you came back outside; is that correct?

A. Yeah.

(Melton depo. at 76-91). Therefore, Melton’s testimony shows that he could not see Keith’s

hands at the moment before and when he was shot.

As set forth above, Demarion Starr was interviewed by Cleveland police several

months after the incident, and he stated that he did not see Keith with a firearm in his hand.

Starr’s deposition was taken. Starr’s testimony was inconsistent with the established physical

facts. Namely, Starr’s testimony and the established facts are as follows:

! The van was red. However, the photographic evidence and the dispatch calls establish

that it was black.

! The windows were not tinted and one would be able to see who was in the van.

However, the photographic evidence and the dispatch calls establish that the windows

were tinted.

! The van was facing forward. However, the photographic evidence establishes that it

had been backed in.

! Keith was in the front driver’s side of the van and exited from the front driver’s side.

However, all the other testimony, including that of lay witness Melton, establishes that

Keith was in the back passenger side and exited from the back passenger side.

! Defendant was on the front driver’s side of the van, shouting to the man to get out.

However, all the other testimony, including that of lay witness Melton, establishes that

21

defendant was on the front passenger side.

! Keith only took three or four steps before falling to the ground after the shots were

fired. However, the photographic evidence shows that he ran a longer distance.

! Keith fell to the ground in front of the gate of the parking lot. However, the

photographic evidence shows that Keith fell to the ground in front of 6201 Haltnorth

by a tree.

(Starr depo. 36-67). Furthermore, Starr also testified that “after the shots had went off,

[Keith] stayed right there. But I had went into the house. I had run into the house after that.”

He did not come back outside until “like five minutes after everything had happened.”

(Id. at 67-68). He further testified:

Q. When he turned and faced the police officer, did you see him point his gun at the police

officer?

A: No, he didn't point anything, he just ran away, like he was trying to get away from

something.

Q. But when he turned -- the police officer says that he did have a gun and he pointed it at

him.

*** From your point of view, could you have seen him do that if he had his back to you?

A. He never had his back to me. It was his side, and the officer was pointing the gun at him.

Q. Could you see what he was holding in his left hand when he was behind the car door?

A: No.

Q. Is it possible Mr. Keith had a gun in his hand and you just couldn't see it from your

point of view?

A: No.

(Id. 73-74). But, Starr also testified:

Q. You were asked about whether you saw Arthur Keith holding a gun, by Mr. Jackson,

correct?

A. Yes.

Q. And you could not see Mr. Keith's hands at all times, could you?

A. No.

****

Q. And you can't say that he did not have a gun by his hand when he fell to the ground, can

you?

A. No, but I can say that after he got shot -- he was running. When he was -- when I saw him

running, he did not have anything in his hands. And then that is when he had got shot and fell.

As he was falling, there was nothing in his hands.

(Starr depo. 98-99).

22

Plaintiff maintains that “while there may be contradictions, and even conflicts, in the

accounts given by the eyewitnesses to this incident, any such conflicts and contradictions are

to be viewed in the light most favorable to the plaintiff, and any credibility determinations

made from this testimony, must be done by the jury and not at summary judgment.” (Doc. 81

at 28).

The Court agrees with defendant that the undisputed physical evidence negates the

need for the credibility determinations. As stated above, even Styles and Lenz testified that

they did not see Keith holding a gun or pointing it at defendant. But, they did not see Keith’s

hands when he got out of the van. Nor did they notice Keith holding a gun as he was running.

However, the undisputed physical evidence establishes that a gun was found next to Keith’s

hand on the ground where he fell, the gun was photographed on-scene in the back of a CMHA

police vehicle, and the gun only had Keith’s DNA match. Additionally, the autopsy report

and Dr. Armstrong’s testimony (both discussed below) show that Keith was not shot in “the

back” as plaintiff maintains, but in the extreme left side of the back. Dr. Armstrong agreed

that defendant’s version of the events is consistent with the gunshot wound. Defendant’s

description of the immediate events leading up to the discharge of his weapon is not

contradicted by any witness, and no witness could see Keith’s hands immediately before,

during, or after the discharge. In particular, plaintiff does not dispute that Melton admitted he

could not see Keith’s hands at the moments leading to defendant’s shooting and when Keith

ran. Plaintiff further does not dispute that Starr admitted he could not see Keith’s hands at all

times.

(b) declarations of Lenz and Styles

23

Plaintiff asserts that Styles and Lenz have submitted declarations that “contain new

and additional accounts of the incident that were never previously reported” in their previous

two interviews to the police and their deposition testimony. Specifically, plaintiff contends

that Styles now states in his declaration that “I heard Griffiths say “stop don’t move”

and “gun” and he heard defendant state “he has a gun, he has a gun” and “[t]hereafter, I heard

shots….” And, Lenz’s declaration now states “I heard a door pop and I heard Griffiths give

the commands that included ‘show me your hands.’ Thereafter, I heard 3 or 4 shots fired….”

These statements are not new or contradictory to earlier statements. Styles’s on-scene

statement related that he heard defendant yell, “Drop the gun, drop the gun!” His later

videotaped interview stated that he heard defendant say, “Stop, don’t move, gun.” Similarly,

Lenz’s on-scene statement stated that he heard defendant yell, “Drop the gun, drop the gun!”

His videoptaped interview states that he heard defendant yell, “Show me you hands.”

More importantly, all of the statements consistently establish that defendant yelled

that Keith had a gun.

(c) declaration of Gonzalez

Plaintiff maintains that Chief Gonzalez’s declaration “amends and supplements” his

prior account. (Doc. 81 at 10). The Court disagrees. Plaintiff points out that Chief Gonzalez’s

declaration states that he observed defendant standing by a fence near where Keith had fallen

and holding a weapon that he recognized as not a CMHA PD weapon. The portion of

Gonzales’s deposition testimony to which plaintiff compares this statement in not

contradictory or supplemental in any way. Specifically, Gonzalez was asked by plaintiff’s

counsel whether he was aware of photographs showing the placement of the gun in the trunk

24

of the police car. Gonzalez testified that he was not aware of any photos of defendant taking

possession of the firearm or of Burdyshaw receiving possession. (Gonzalez depo. 111-113).

This testimony is simply not inconsistent with the declaration testimony.

(d) autopsy report

As set forth above, the autopsy report found the gunshot wound to be in the

“postero-lateral left upper trunk.” Dr. Armstrong’s deposition testimony explains that the side

of the body is divided by an imaginary line and anything behind that line is “postero” and

anything in front of that line is antero. The gunshot wound is several inches to the left of the

dividing line in the postero portion of the body. (Armstrong depo. 117-118). This means that

the wound is inches from the imaginary line down the side of Keith’s body. The report also

states that the wound is 13 inches from the posterior midline. Dr Armstrong explained at

deposition that the posterior midline is the spine- the midline of the back. (Id. 120-121). Thus,

while Dr. Armstrong testified that “the wound actually is not under the armpit,” (Id. 129) the

wound was only inches from the line along the side of the body and 13 inches from the spine.

A photo is submitted which shows the location of the gunshot wound. (Doc. 81 Ex. 4).

Dr. Armstrong agreed that the decedent’s arm in the photo is “being pulled forward by

someone.” (Id. at 118). Dr. Armstrong also testified:

Q: It's been reported that Mr. Keith pointed his gun at Officer Griffiths and was turning to

run and escape from apprehension. And Officer Griffiths, after the gun was pointed at him,

fired in self-defense. Would that be consistent with where you noted the entrance wound on --

at the time you did the autopsy on Mr. Keith?

A: That scenario as presented would be consistent with the wound -- entrance wound that I

described.

(Id. 129). She also testified that “if the position of his arm is down, then, yes, the wound

25

would appear that it would be closer to the upper part of the left arm.” (Id. 120). And,

Q : And again, it's my understanding that it's consistent with what you noted that when

Officer Griffiths reported that Keith turned, pointed the gun at him, and that's when he fired,

he could have been turned, moving in this direction, and then the shot that was fired hit him in

the area that you noted as the entrance wound in your report; correct?

A: That is one scenario, as I said before, that can explain my findings of the autopsy in

relation to the wound.

(Id. 163). Thus, Dr. Armstrong’s autopsy report and deposition testimony establish that the

gunshot wound is consistent with defendant’s version of the events.

Plaintiff argues that the autopsy report shows that Keith was shot in the back because

the autopsy report states that the “gunshot wound proceeds from back to front, rightwards,

and downwards.” But, this is merely consistent with the fact that Keith was shot 13 inches to

the left of his spine. Plaintiff points to the doctor’s deposition testimony, but this also shows

the same area:

A:... And then I went on to examine both externally and internally during the autopsy to

determine that there was a single entrance wound of the extreme left side upper back that was

connected to an exit wound on the right chest.

Q: So just for clarification, the entry wound that you’re talking about entered through the

back of Mr. Keith and out through the front of his body?

A: So I described and photographed and documented the entry wound to be the left side and

upper back. And then I also identified an exit wound of the right chest.

(Id. 19-20). Finally, plaintiff points out that she testified, “In this particular [autopsy]

photograph, I can see where the bullet had come in the back left rib cage area and had

fractured the rib in that location...” (Id. 32). Again, this does not establish that Keith was shot

“in the back,” but is consistent with the location described above.

Thus, the testimony plaintiff relies on does not establish that Keith was shot in the

26

back, but in the “extreme left side upper back.”

(e)the gun

Plaintiff does not address the forensic evidence that Keith’s DNA alone was found on

the recovered handgun. Plaintiff only addresses the fact that there is no crime scene

photograph showing the gun lying next to Keith on the ground, and there is no evidence of

any spent shell casings found in the area that were discharged from the Glock 9mm. Plaintiff

maintains, “the extent to which these officers have alleged that Officers Griffiths secured

from the ground next to Mr. Keith’s body the gun allegedly pointed at him by Mr. Keith, this

account raises genuine issues regarding the truth of this account, and whether this account

was concocted to rebut eyewitness accounts that Mr. Keith never pointed a gun at Officer

Griffiths and was never seen running with a gun.” (Doc. 81 at 28). However, plaintiff’s

suggestion is wholly unsupported by any evidence to refute the contemporaneous photograph

of the suspect’s gun in the police car or the forensic evidence establishing Keith’s DNA on

the gun.

The DNA Laboratory Examination Report states the conclusions of the examination of

the Glock model 19. There is no evidence to dispute that this was the firearm found near

Keith’s hand where he fell. The laboratory report found a match between the grip and trigger

areas, the surface of the slide, and surface of the magazine and Keith. It found no statistical

support for a match between these areas and defendant or Burdyshaw. (Griffiths decl. Ex. B).

This uncontroverted report is consistent with Keith having the gun in his hand as defendant

reported even though no other witness saw it in his hand. Nor does plaintiff dispute the

evidence establishing that it was Styles who first reached Keith and found the gun lying on

27

the ground where Keith fell, or that a hostile crowd gathered immediately making it necessary

to secure the gun. Plaintiff has not submitted evidentiary support for the assertion that Keith

did not have a gun.

For these reasons, no issue of fact precludes the granting of qualified immunity.

(2) State law claims

Having found that defendant is entitled to qualified immunity, defendant is also

entitled to summary judgment on the state law claims because he did not violate the Fourth

Amendment’s reasonableness requirement. As such, given that defendant’s actions were

objectively reasonable, he cannot be held liable for a survivorship action, wrongful death, or

loss of consortium.

Conclusion

For the foregoing reasons, defendant’s Motion for Summary Judgment is granted.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A.GAUGHAN—™”

Dated: 4/30/24 United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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