Jordan v. Howard

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Sabrina Jordan, Administrator of the Estate of

Jamarco McShann,

Plaintiff,

v. Case No. 3:18-cv-082

Judge Thomas M. Rose

Officer John Howard, et al.,

Defendants.

ENTRY AND ORDER GRANTING IN PART MOTION FOR

SUMMARY JUDGMENT BY DEFENDANTS MICHAEL

CORNELY, JUSTIN ELLER, JOHN HOWARD, JERRY

KNIGHT, BRIAN O'NEAL, ECF 13, DECLINING TO

EXERCISE JURISDICTION OVER STATE LAW CLAIMS

AND TERMINATING CASE.

Although proverbial wisdom has for millennia taught the advantage of not provoking

potentially dangerous situations, see Prov. 26:17, because the United States Supreme Court has

refused to proclaim this wisdom to be clearly established Constitutional law, Defendants are

entitled to qualified immunity. Pending before the Court is a document entitled Motion for

Summary Judgment by Defendants Michael Cornely, Justin Eller, John Howard, Jerry Knight,

Brian O'Neal, Unnamed Officers, ECF 13. Movants request that the Court award them summary

judgment on all counts of Plaintiff’s Complaint. ECF 1.

The Complaint arises from events of October 20, 2017, when police investigating a noise

complaint chose to rouse a man they found sleeping in a car with a gun on his lap, after which he

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put his hand on the gun, a reaction one might predict but which caused police to fear for their

safety. The administrator of the man’s estate filed a complaint asserting a claim for

Unconstitutional Seizure in violation of 42 U.S.C. § 1983, a claim for State Law Wrongful Death

Claim Pursuant to Ohio Revised Code § 2125.02, a claim for State Common Law Claim for Civil

Conspiracy and State Law Claim for Assault and Battery. They further allege survivorship

damages and allege Willful, Wanton and Reckless Conduct. The complaint names as defendants

Officer John Howard, Officer Jerry Knight, Officer Michael Cornely, Officer Justin Eller, Officer

Brian O’Neal and Unnamed Officers.

On October 30, 2019, Defendants Michael Cornely, Justin Eller, John Howard, Jerry

Knight and Brian O'Neal moved for summary judgment. ECF 13. Plaintiff responded, opposing

Defendant’s motion, but allowing that she was no longer proceeding on claims against O’Neal and

dismissing all claims against O’Neal. Plaintiff further limited her claims against Cornely to state

law claims only waiving constitutional claims against him. ECF 25, at 14 n.4, PageID 957.

I. Background

In the early hours of October 20, 2017, Moraine police officers were dispatched to the

Valley View Apartments for a noise complaint coming from a vehicle playing loud music. Knight

Dep. at 44-45. Jamarco McShann—a 23-year-old black man was asleep in his girlfriend’s car,

outside their apartment. (DaShelle Sparks Dep., attached as Ex. 5, at 7, 16, 19, 21.) That night,

Defendants Jerry Knight, Michael Cornely and John Howard worked their regular midnight shift

together. (Howard Dep. at 72-73, ECF 16, PageID 196.) In response to the noise complaint,

Knight was dispatched to Sunnyside Apartments at 3730 Pinnacle Park. (Id. at 95, PageID 202.)

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Howard and Cornely also reported to the complex. (Id.; Cornely Dep. at 20-21, ECF 17, PageID

299.)

Knight arrived first. It was dark, and the area was illuminated only by some streetlights,

mainly from apartment buildings. He walked approximately a block away—to 3750 Pinnacle

Park—where he heard music coming from a parked car. (Knight Dep., ECF 15, PageID 72, at 47.)

The vehicle was backed into a parking spot. Two SUVs were also parked nearby. (Id., PageID

75, at 59.) Knight approached the car and looked inside with his flashlight. (Knight Dep. at 58,

ECF 15, PageID 75; Howard Dep. at 109, ECF 16, PageID 205.)

Knight saw a man sleeping, reclined in the driver’s seat, with his left hand behind his head

like a pillow. (Knight Dep. at 58, 61, ECF 15, PageID 75.) All the car windows were up. (Howard

Dep. at 129, ECF 16, PageID 210.) Knight pulled on the door handle, but it was locked. (Cornely

Dep. at 25.) When Knight saw McShann's hand on the gun, he backed up from the vehicle.

(Knight Dep. at 62.)

By that time, Officer Cornely had arrived on the scene and Officer Knight said "hey, Mike,

he's got a gun in his right hand." (Knight Dep. at 63, 66; Cornely Dep. at 22.) Knight and Cornely

both claim they saw a gun on the sleeping man’s lap, with the muzzle facing toward the driver’s

door, kind of at a slant. (Knight Dep., ECF 15, PageID 76 at 64.) The gun was a Ruger semi-

automatic pistol, with a large extended magazine. Cornely radioed in a signal 13 (which stands

for a gun) and they waited for Officer Howard to arrive. (Knight Dep. at 71.) Howard arrived.

Howard claims that the muzzle was facing the “outboard” side of the car, pointing toward the left

and behind the sleeping man. (Howard Dep. at 127, ECF 16, PageID 210; Knight Dep. at 72, ECF

15, PageID 78.)

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Defendants did not know the identity of the sleeping man. They also knew nothing about

whether he had any potential criminal history—and by extension, knew nothing about whether the

man was subject to any restrictions on handgun possession. (Howard Dep. at 163, ECF 16, PageID

219.)

Defendants did not see evidence of drugs or other weapons. (Id. at 120, PageID 208.)

Defendants do claim they were concerned about a potential overdose or medical emergency.

However, they did not call EMS or attempt to provide any medical aide, did not check for breathing

and did not attempt to wake the man until almost thirty minutes after they arrived on scene. (Id. at

197-98, PageID 227-28; see also Dispatch Record, attached as Ex. 6.)

After observing the man, Knight, Cornely and Howard gathered to the side of the apartment

building. (See Exhibit 3 to Howard’s Dep., ECF 16-1, PageID 271.) They decided to run the

license plates. The plates came back registered to DaShelle Sparks, who lived in the apartments

behind the parked car. (Knight Dep. at 73, ECF 15, PageID 78.)

Defendants decided to try to find Sparks in hopes that she could identify and help wake

McShann. Defendants thought it would be helpful and less startling for a familiar person to wake

the man rather than police. (Howard Dep. at 137-38, ECF 16, PageID 212.) Defendant Cornely

went to owner’s apartment and knocked on the door. (Howard Dep. at 137, ECF 16, PageID 212.)

No one answered the door at the apartment. (Howard Dep. at 137-38, ECF 16, PageID 212-13;

Knight Dep. at 74-75, ECF 79, PageID 79.) While Cornely went to the door, Knight and Howard

waited by the tree. (Knight Dep. at 75, ECF 79, PageID 79.)

The officers suspected McShann was violating the law by improperly handling a firearm

in a motor vehicle. (Cornely Dep. at 31; Howard Depo at 10, 89.) The possession of a loaded

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gun in a motor vehicle without a license would give the officers probable cause to stop McShann.

(Howard Depo at 15.) At the same time, Ohio is an open-carry state. Ohio law permits carrying

weapons and does not per se prohibit extended capacity magazines. Ohio concealed handgun

licenses allow loaded handguns inside vehicles and permit drivers to transport or have a loaded

handgun on or about their person. (Ohio Rev. Code §2923.16(E); Ohio Rev. Code §2923.16(F)(5).)

The music was still blaring. (Knight Dep. at 76.) There were calls coming into McShann's

cell phone and when that happened the music would stop, and it would ring real loud. (Knight

Dep. at 76-77.) Howard, Knight and Cornely remained on the scene. Though Cornely was the

senior officer, Howard took charge of the scene. (Howard Dep. at 150, ECF 16, PageID 216.)

Howard decided to place stop sticks under the tires to prevent fleeing. (Cornely Dep. at 28-29,

ECF 17, PageID 301; Knight Dep. at 75, ECF 15, PageID 79.) Knight moved his cruiser to shine

his spotlight into the windshield of McShann’s car. (Knight Dep. at 82, ECF 15, PageID 81.) The

spotlight helped illuminate the interior, but it still was not that bright inside the car. (Howard Dep.

at 149, ECF 16, PageID 215.)

At this point it was coming close to 5:30 in the morning and people were starting to come

out to their vehicles to go to work. (Knight Dep. at 77, 93.) The Officers realized that kids were

going to be getting ready for school very shortly. (Knight Dep. at 77.) While if McShann

possessed a concealed carry license, Ohio law has declared that a man with a gun is not a concern

for people coming out to their vehicles or for children getting ready for school, the officers were

concerned. Indeed, at this hour, their clearest concern, the noise violation, was somewhat less

pressing, as people were beginning to rise and go about their day.

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Howard decided to call in officers O’Neal and Eller. Howard requested they bring a

ballistics shield to approach the vehicle. (Cornely Dep., at 30- 31, ECF 17, PageID 302.) O’Neal

and Eller arrived and joined Howard, Knight and Cornely in the grassy area by the tree. (Knight

Dep. at 97, ECF 15, PageID 84.)

Defendants approached the vehicle, intending to disarm McShann and remove him from

the vehicle to investigate the noise complaint. (Knight Dep. at 103, ECF 15, PageID 86.) Howard

ordered everyone to their positions. Knight was to contact the driver. (Knight Dep. at 103, ECF

15, PageID 86.) Knight and O’Neal were to approach the driver’s side with O’Neal on the shield.

(Id.) Cornely was to post up on the passenger side to provide cover and additional light with his

flashlight. (Howard Dep. at 147, ECF 16, PageID 215.)

Before the approach, Howard claims he instructed the others that if the sleeping man

grabbed the gun, they should all stay back so they would not shoot across the car at each other.

Howard also said that “they probably wouldn’t even need to shoot” because he would have a clear

line of sight from the back of the car and “would be able to stop the threat pretty quickly.” (Howard

Dep. at 153-54, ECF 16, PageID 216-17.) Knight positioned himself at the second pillar of the

vehicle between the driver’s window and the rear window, near the left shoulder of McShann, who

remained reclined and asleep. (Knight Dep. at 105, 114, ECF 15, PageID 86, 89.) O’Neal was

beside Knight, holding the shield. Knight never stood behind the shield. (Knight Dep. at 105-06,

ECF 15, PageID 86-87.) Howard, meanwhile, drew his shotgun as he walked to the rear of the

car. (Howard Dep. at 170, ECF 16, PageID 221.) Howard admits that when Defendants arrived

at the car, no actual threat of death or serious physical harm existed. Instead, there was at most

a potential threat and no reason to use deadly force. (Id. at 146, PageID 215.) McShann continued

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sleeping soundly, with his left arm relaxed behind his head. (Knight Dep. at 115, ECF 15, PageID

89.)

Knight claims that during Defendants’ approach, the gun remained on McShann’s thigh,

lying flat. The barrel allegedly faced the driver’s side door, with the magazine facing the

passenger side door. Knight alleges that McShann’s hand was resting on the gun, but not

gripping it. (Id. at 115-16, PageID 89.) No part of the gun was touching the center console. (Id.)

Howard positioned himself at the rear of the vehicle, behind McShann’s seat. (Howard

Dep. at 172, ECF 16, PageID 221.) In his deposition, where he claimed to have a clear line of

sight to McShann’s hand, Howard alleged that he stood in the middle rear of the vehicle. (Id.)

However, in his interview with the Ohio Bureau of Criminal Investigation, Howard claimed he

stood on the left rear side of the car. (See Exhibit 9 to Howard Dep., ECF 16-1, PageID 290.)

Howard remained focused on the gun and McShann’s hands from his position at the rear of the

car. Howard saw McShann’s right hand resting near, but not on the gun. (Howard Dep. at 172-

73, ECF 16, PageID 221.)

Knight began to bang on the glass with his flashlight. He continued for approximately

five to ten seconds until McShann awoke. (Knight Dep. at 112, 199, ECF 15, PageID 88, 90.)

The Officers were screaming, “Police!” (Knight Dep. at 119-20.) “Keep your hands up in the

air!” (Knight Dep. at 119-20.) “Show me your hands!” (Knight Dep. at 119-120; Cornely Dep.

at 43.)

Defendants acknowledge that their tactics at the car could cause McShann to wake in a

startled, scared manner and to experience a startle response, including but not limited to

movements of his head, torso and arms. (O’Neal Dep. at 55-56, ECF 18, PageID 353.)

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Defendants admit that the spotlight could make it difficult for McShann to see. (Knight Dep. at 88,

ECF 15, PageID 82; Howard Dep. at 39-40, ECF 16, PageID 188.)

McShann appeared dazed and confused as he awoke. (O’Neal Dep. at 58, ECF 18, PageID

354; Exhibit 7 to O’Neal Deposition, ECF 18-1, PageID 381.) He opened his eyes and took his

left hand out from behind his head. (Knight Dep. at 119; Cornely Dep. at 43-44; Howard Depo at

175; O'Neal Depo at 49.) He took his right hand off the gun and sat up a little bit. (Knight Dep.

at 119; Cornely Dep. at 44.) He put his hands up in the air, palms facing forward. (Knight Dep.

at 123; Cornely Dep. at 44.) He turned to the left and looked at Knight with his hands up in the

air. (Knight Dep. at 120, 123; Cornely Dep. at 44; Howard Depo at 175-176; O'Neal Depo at 52.)

He turned to the right and looked right at Cornely with his hands still up in the air. (Knight Dep.

at 120, 123; Cornely Dep. at 44-45; Howard Depo at 176; O'Neal Depo at 52.) He turned and

looked back at Knight, then turned and looked at Cornely. (Knight Dep. at 120; Cornely Dep. at

45; Howard Depo at 176; O'Neal Depo at 52.)

DaShelle Sparks, McShann’s fiancé, had been at her cousin’s apartment nearby when

Cornely knocked on her door. (Sparks Dep., Ex. 5, at 27.) A neighbor later informed Sparks of

the situation outside and she went outside with her cousin. (Id. at 28.) She saw police around her

car.1 Sparks told police that she owned the car and her son’s father was inside. (Id.) Eller

approached, pointed his gun in Spark’s face and ordered the women to put up their hands up or he

would shoot. (Id.) They complied, took a couple steps away and before they heard the police

shoot McShann. (Id. at 28-29; Eller Dep. at 90, 98-100.)

1 Sparks did not hear the yelling, nor music playing from the car. (Id.)

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McShann then turned to the left again, looked at Knight grabbing the gun. (Knight Dep. at

123-124; Cornely Dep. at 45, 56; Howard Depo at 176; O'Neal Depo at 57.) After grabbing the

gun, he began turning his body toward Knight. (Knight Dep. at 124.) The gun was already toward

O'Neal and Knight. (Knight Dep. at 125; O'Neal Depo at 67.) The Officers were all still yelling

police! (Knight Dep. at 128.) Show us your hands, show us your hands, show us your hands!

(Knight Dep. at 128.) Keep your hands off the gun! (Knight Dep. at 128.) The officers were

yelling commands at McShann over the music for five to ten seconds and during that time he was

moving. (Knight Dep. at 132; Howard Depo at 182.)

According to Knight, Cornely and O’Neal, McShann started raising the gun in the direction

of Knight and O'Neal. (Knight Dep. at 124-125; Cornely Dep. at 57; O'Neal Depo at 16, 58-59,

67.) O'Neal was in fear for his life. (O'Neal Depo at 67, 99.) Knight also feared for his life and

feared for the lives of his co-workers. (Knight Dep. at 151.) Cornely believed McShann posed a

deadly threat to the Officers. (Cornely Dep. at 58.) Knight fired his weapon and yelled, “Shots

fired!” (Knight Dep. at 125, 132-133.) Simultaneously, Howard fired two shots. (Howard Depo

at 189.) The shots hit McShann and he dropped the gun. (Knight Dep. at 134; Howard Depo at

189.)

Approximately 10 seconds after McShann woke, Howard and Knight shot Jamarco

McShann. (Howard Dep. at 183, ECF 16, PageID 224.) Howard fired two rounds of his shotgun.

Knight fired seven bullets from his pistol. Knight shot first. (Cornely Dep. at 58, ECF 17, PageID

309.)

Knight testified that he did not face a threat of death or great bodily harm until the gun was

turned toward Knight:

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Q.ꞏ So do you believe that the threat of deadly -- of, like, great bodily

harm to yourself or your fellow officers arose once he had that gun

in his hand and turned toward you?

A.ꞏ ꞏ Absolutely.

Q.ꞏ And before that point, there was no threat of death or great

bodily harm to you or your –

A.ꞏ ꞏ There was no threat, just the fear –

(Knight Dep., ECF 17, PageID 98 p.151-152.)

Importantly, Howard, who was standing somewhere behind McShann, testified that

McShann never moved the gun before Howard pulled the trigger of his shotgun. Howard testified

that McShann was startled awake and sat up. (Id. at 177, PageID 222.) Howard is also clear that

he never saw McShann point the gun:

Q. How did he grab the gun?

A. He picked it up with his right hand.

Q. On the handle?

A. Yes.

Q. Okay. Did you see him put his finger on the trigger?

A. No, not specifically.

Q. Did you shoot as soon as he reached for the gun?

A. When he picked up the gun, yes.

Q. Okay. Where was—like assume this (indicating) is the gun,

right, just for demonstration purposes. Where was the gun in

relation to his lap where he picked it up when you shot? How high

had he reached it?

A. I have no idea.

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Q. Was it more than an inch off his lap?

A. I have absolutely no idea.

Q. Okay. Could you still see the gun in his hand at the time

that you shot him?

A. I don't know. When he grabbed the gun, I stopped focusing

on the gun. I wasn't looking at the gun anymore.

Q. So, you have no idea what he did with the gun once it was in

his hand?

A. He picked it up.

Q. Right. But then you don't know what he did with the gun?

A. Correct.

Q. Okay. So, you don't know whether he was going to move

the gun to the side so that he could get out of the car, right?

A. Correct.

Q. …Did you ever see him move the gun in front of his body?

A. No.

Q. Did you ever see him point the gun at anyone?

A. No.

Q. Okay. Did anything else happen before you fired that you

haven't told me about yet?

A. He scanned, and he picked up the gun, that's it.

Q. Okay. Did you—and you don't—there is nothing else that

you recall, like, your co-defendants doing on the scene there in those

moments before you fired, either, that you haven't already told me?

A. Correct.

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(Howard Dep. at 184-86, ECF 16, PageID 224-25.) Later, he continued, “I didn't care whether I

was firing first. I was firing because there was a threat. Whether it was first, second, or third,

the thought never entered my mind.” (Id. at 187, ll. 8-11, PageID 225.)2

While Defendants claim Howard testified that “McShann grabbed the gun, turned his body

toward Knight, turned the gun toward Knight and began raising the gun in Knight's direction. …

Howard Depo at 176, 189,” Howard did not testify to that effect on page 189. On page 176, he

testifies, “He grabbed the gun with his right hand and I shifted my attention from there to -- to the

left a little to center mass and I pulled the trigger.” Id. ll. 9-13. Howard is repeatedly clear that he

shot when he saw McShann grab the gun, not seeing whether it ever moved.

Officer Cornely sent a “signal 99” which informs others an officer needs help and Detective

Eller called for a medic. (Knight Dep. at 149; Eller Dep. at 106.) They wanted to get McShann

out as quickly as possible to start first aid. (Knight Dep. at 154.) Knight reached through the

broken glass and opened the door. (Knight Dep. at 153.) Knight and O'Neal pulled McShann out

of the vehicle back to the sidewalk grassy area to start first aid. (Knight Dep. at 160; Cornely Dep.

at 65; O'Neal Depo at 78.) Knight was saying “stay with me, keep breathing.” (Knight Dep. at

161; Eller Dep. at 109.) O'Neal ripped his shirt off trying to find the bullet holes and tried to plug

him up as best as he could to clot the wounds and stop the bleeding. (O'Neal Depo at 81.) Knight

and O'Neal put pressure on the wounds they saw. (Knight Dep. at 162; O'Neal Depo at 81-82.)

They continued putting pressure on McShann's wounds until the medics arrived. (Knight Dep. at

2 There is no police body camera footage to resolve differences in the police officers’ testimony. “The Moraine

police department is one of the few in the Dayton area which does not have its officers equipped with cameras.”

Nick Blizzard, Moraine Considering Equipping Police with Body Cameras, DAYTON DAILY NEWS, April 19, 2019,

https://www.daytondailynews.com/news/local/moraine-considering-equipping-police-with-body-

cameras/bDF03eALHXfeuXmLWtARsL/

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164; O'Neal Depo at 81-82.) McShann sustained at least six gunshot wounds, including two

shotgun wounds, causing his death.

Presumably, someone turned off the stereo.

Cornely testified that he found the gun “…on the left-hand side of the passenger seat closest

to where McShann had been…positioned laying on its right side with the muzzle pointing toward

the dashboard.” (Cornely Dep. at 86, ECF 17, PageID 316; see also Knight Dep. at 145, ECF 15,

PageID 96; Howard Dep. at 189, ECF 16, PageID 225). He alleged that the grip of the gun was

“pointed towards the driver’s side” of the car. Cornely testified that he took the gun and placed

it in the trunk of his police cruiser and later in Knight’s cruiser—unsecured, not in an evidence

bag and on top of other items in the trunk. (Id. at 87, PageID 316; Scene Photo - Gun in Trunk,

attached as Ex. 12.) In the aftermath, the gun was eventually moved to the trunk of a police

cruiser. When Cornely left the scene, he once again moved the gun, this time putting it—still

unsecure—in the trunk of Knight’s cruiser. (Cornely Dep. at 79, ECF 17, PageID 314.)

Plaintiff asserts that forensic evidence refutes Defendants’ claim that Jamarco McShann

was holding a gun in his hand at the time of the shooting. Jeremy Bauer, Ph.D., a certified

accident reconstructionist and forensic photographer and biomechanics expert analyzed findings

from the autopsy, locations of bullet holes and blood in McShann’s vehicle and testimony from

Defendants about their locations and movements during the shooting. Bauer concluded that

McShann was not holding or gripping the gun when he was shot in the right hand. (See Autopsy

Report, attached as Ex. 8; Autopsy Photos of McShann’s Hand, attached as Ex. 9; Scene Photos -

Car, attached as Ex. 10; Scene Photo - Gun, attached as Ex. 11.) According to Bauer, the angle

of this gunshot wound is consistent with McShann’s right hand being raised in front of him, near

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shoulder level, when the base of his right thumb was struck by Knight’s bullet. (Bauer Report at

¶18.)

Further, the grip of the handgun the officers testify McShann held at the time of the

shooting suffered no damage. (See Bauer Report at Figure 16.) Bauer reasons that if the gun had

been in McShann’s right hand when he suffered the gunshot wound to his thumb, given the wound

path through his hand, the gun would have been struck by the bullet. But the gun reveals no

damage to the grip, where the webbing on McShann’s thumb area and palm would have been in

contact with the gun. (Bauer Report at ¶16 and Figure 15.) At the time McShann suffered the

thumb gunshot, Bauer believes his hand was likely pointed forward (Bauer Report at Figures 12,

14), toward the right front quarter of the car. (Bauer Report at ¶¶13, 16.) Bauer concludes that

McShann was therefore not holding a gun and pointing toward the driver’s side, as Knight alleges,

nor grabbing the gun on his lap, as Howard alleges.

Neither Howard nor Knight concede that McShann’s right hand was ever raised in front of

him, near shoulder level, pointed forward—while not holding a gun—during this shooting. They

both assert that McShann’s hand was gripping—or holding and pointing to the side—the gun when

he was shot. (Howard Dep. at 176, ECF 16, PageID 222-23, 178-81; PageID 224, at 185; Knight

Dep. at 143-44, ECF 15, PageID 96.)

Photographs of the gun include blood streaks on the right side of the slide. (Scene Photo -

Gun, Ex. 11; Bauer Report at ¶17 and Figures 16, 17.) The Ohio Bureau of Criminal Investigation

tested the gun for blood in the same location, found a presumptive positive result for blood on the

right side of the slide. (See Deposition of Sabrina Selbe, attached as Ex. 13, at 27-28; see also

Selbe Dep. Exhibit 22 and Selbe Dep. Exhibit 23 at 3.) Dr. Bauer explains that photographs of

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the front passenger seat (see Bauer Report, Figure 17) do not show any blood on the surface of the

seat. Officers at the scene also did not document any blood on the passenger seat surface. Bauer

concludes that Cornely’s description of the gun is inconsistent with Howard’s and Knight’s

allegations about the gun in McShann’s hand (whether pointed at Howard or not) at the time he

was shot. (Bauer Report at ¶17.)

Police practices expert Melvin Tucker opined that Defendants violated law enforcement

standards and training on vehicle extractions, which led to an unjustified and unnecessary shooting.

Defendants positioned themselves in a way to create danger. (See Tucker Affidavit and Report,

attached as Ex. 14.)

On March 20, 2018, Sabrina Jordan, administrator of McShann’s estate, filed suit in this

Court asserting a claim for Unconstitutional Seizure in violation of 42 U.S.C. § 1983, a claim for

State Law Wrongful Death Claim Pursuant to Ohio Revised Code § 2125.02, a claim for State

Common Law Claim for Civil Conspiracy and State Law Claim for Assault and Battery. Jordan

further alleged survivorship damages and alleged willful, wanton and reckless conduct. The

complaint names as defendants Officer John Howard, Officer Jerry Knight, Officer Michael

Cornely, Officer Justin Eller, Officer Brian O’Neal and Unnamed Officers. ECF 1.

On October 30, 2019, Defendants Michael Cornely, Justin Eller, John Howard, Jerry

Knight and Brian O'Neal moved for summary judgment. ECF 13. Plaintiff responded, opposing

Defendant’s motion, but allowing that she was no longer proceeding on claims against O’Neal and

dismissing all claims against O’Neal. Plaintiff further limited her claims against Cornely to state

law claims only waiving constitutional claims against him. ECF 25, at 14 n.4, PageID 957.

II. Standard

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A moving party is entitled to summary judgment if the pleadings, the discovery and the

disclosure materials on file and any affidavits “show [ ] that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. at 56(a).

There is no genuine issue for trial where the record “taken as a whole could not lead a rational trier

of fact to find for the non–moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). We must ultimately decide “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one–sided that one party must

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). In

doing so, the evidence is construed and all reasonable inferences are drawn in favor of the

nonmoving party. Hawkins v. Anheuser–Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).

III. Analysis

Plaintiff has dismissed all claims against Officer Brian O’Neal. Plaintiff's Opposition, n.14,

ECF 5; PageID 957. Neither is Plaintiff proceeding on her federal constitutional claims against

Officer Michael Cornely. Id. Thus, Cornely and O'Neal are entitled to summary judgment as a

matter of law on Plaintiff’s federal claim.

The remaining Defendants claim they are entitled to qualified immunity on Plaintiff’s

federal claim. The qualified immunity doctrine shields government officials performing

discretionary actions from civil damages liability as long as their actions reasonably could have

been thought consistent with the rights they are alleged to have violated. Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Even if a government official deprives a plaintiff of a federal right,

“qualified immunity will apply if an objective reasonable officer would not have understood, by

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referencing clearly established law, that his conduct was unlawful.” Painter v. Robertson, 185 F.3d

557, 567 (6th Cir. 1999).

“Qualified immunity balances two important interests-the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “The protection of qualified immunity applies regardless of

whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based

on mixed questions of law and fact.’” Id. (citations omitted); see also Brosseau v. Haugen, 543

U.S. 194 (2004); Saucier v. Katz, 533 U.S. 194 (2001).

In Saucier, the Court dictated a two-step inquiry which initially questioned whether there

was a potential constitutional violation and only then asked whether the implicated right was

‘clearly established.’ However, in Pearson the United States Supreme Court held that courts are

no longer obliged to conduct the qualified immunity analysis in the sequence set forth in Saucier.

Pearson, 555 U.S. at 239.

Once the defense is raised, the plaintiff has the burden of demonstrating a violation of a

constitutional right and showing that the right was clearly established. Barrett v. Steubenville City

Schools, 388 F.3d 967, 970 (6th Cir. 2004). This inquiry turns on the circumstances of the case

compared to prior precedent. Poe v. Haydon, 853 F.2d 418, 425 (6th Cir. 1988). Ordinarily, these

questions can be answered by the court as a matter of law. See Dickerson v. McClellan, 101 F.3d

1151, 1157 (6th Cir. 1996). Schroeder v. City of Vassar, 371 F. Supp. 2d 882, 896 (E.D. Mich.

2005), Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991).

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The Court notes the growing frustration with the qualified immunity doctrine, here voiced

by Judge Crenshaw:

qualified immunity is a controversial doctrine that can (1) lead to the

head-scratching and frustrating outcome of a “right” becoming

“clearly established” at the pleasure and indeterminate speed of

various jurists, and (2) undercut some of the core purposes of 42

U.S.C. § 1983. See, e.g., Scott Michelman, The Best Branch

Qualified to Abolish Immunity, 93 NOTRE DAME L. REV. 1999, 2000

(May 2018) (“The critics and critiques of qualified immunity ... are

by now legion. Qualified immunity has been attacked as

ahistorical; unjustified as a matter of statutory interpretation;

grounded on inaccurate factual assumptions; antithetical to the

purposes of official accountability and of the statute of which it is

putatively a part; unadministrable; regularly misapplied; a hindrance

to the development of constitutional law; a basis for strategic

manipulation by judges; and a source of jurisdictional problems.”);

William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L.

REV. 45 (Feb. 2018) (“Th[e qualified immunity] framework makes

it hard to find a roadmap to the denial of immunity that could give a

lower court confidence in its conclusion.”); Joanna C. Schwartz,

How Qualified Immunity Fails, 127 YALE L.J. 2, 64 (Oct. 2017)

(“Commentators have long criticized qualified immunity doctrine

for protecting government officials at the expense of Section 1983's

accountability goals.”). But it is within this framework that the

Court currently must operate. That courts are so restricted by the

restrictions and technicalities of this judicial doctrine is somewhat

ironic given that the Supreme Court has broadly instructed that

judges are to look to the “factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003).

Spainhoward v. White Cty., Tennessee, No. 2:18-CV-00015, 2019 WL 6468583, at *9, n.10 (M.D.

Tenn. Feb. 1, 2019)(Crenshaw, J.).

The Court further pauses to note that this is not the only way a democratic society might

balance this question. Consider, for example, the European Court of Human Rights’ willingness

to scrutinize police planning that leads to a use of force:

18

However, the use of force must be no more than “absolutely

necessary” for the achievement of one of the purposes defined in

sub-paragraphs (a), (b) and (c) [of Article 2 § 2 of the European

Convention on Human Rights, allowing force “in defense of any

person from unlawful violence; in order to effect a lawful arrest or

to prevent the escape of a person lawfully detained; or in action

lawfully taken for the purpose of quelling a riot or insurrection.”].

In this respect the use of the term “absolutely necessary” in

Article 2 § 2 indicates that a stricter and more compelling test of

necessity must be employed than that normally applicable when

determining whether State action is “necessary in a democratic

society” under paragraphs 2 of Articles 8 to 11 of the Convention.

In particular, the force used must be strictly proportionate to the

achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c)

of Article 2.

Furthermore, in keeping with the importance of this provision

in a democratic society, the Court must, in making its assessment,

subject deprivations of life to the most careful scrutiny, particularly

where deliberate lethal force is used, taking into consideration not

only the actions of the agents of the State who actually administer

the force but also all the surrounding circumstances, including such

matters as the planning and control of the actions under examination

(see the McCann and Others judgment cited above, at 45–46, §§

147–50).

Having regard to the above considerations the Court is of the

view that it has not been shown that the rescue operation was not

planned and organized in a way which minimized to the greatest

extent possible any risk to the lives of the couple.

Andronicou and Constantinou v. Cyprus, 25052/94, 1997-VI Eur. Ct. H.R. 2059, para. 185-86

(Sept. 10, 1987).

Such an approach is not entirely foreign to Constitutional interpretations considered by

other circuits in our system. See Billington v. Smith, 292 F.3d 1177 (9th Cir.2002) (holding that

a plaintiff's Fourth Amendment claim against police officers who used deadly force may survive

summary judgment, even where the particular seizure is reasonable, if the defendant police officers

19

acted recklessly in creating the circumstances which required the use of deadly force. Id. at 1189

(stating that “even though the officers reasonably fired back in self-defense, they could still be

held liable for using excessive force because their reckless and unconstitutional provocation

created the need to use force.”)) (abrogated by County of Los Angeles, Calif. v. Mendez, 137 S. Ct.

1539, 1546 (2017)).

Even prior to Mendez, the Sixth Circuit rejected Billington. See Livermore ex rel. Rohm v.

Lubelan, 476 F.3d 397, 406 (6th Cir. 2007). Under Sixth Circuit precedent, courts are to view

excessive force claims in segments. Id. (citing Gaddis v. Redford Twp., 364 F.3d 763, 772 (6th

Cir.2004); and Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.1996)). A court should first

identify the “seizure” at issue here and then examine “whether the force used to effect that seizure

was reasonable in the totality of the circumstances, not whether it was reasonable for the police to

create the circumstances.” Id. (quoting Dickerson, 101 F.3d at 1161 (quoting Carter v. Buscher,

973 F.2d 1328, 1332 (7th Cir. 1992))). The Dickerson court reasoned:

The time-frame is a crucial aspect of excessive force cases. Other

than random attacks, all such cases begin with the decision of a

police officer to do something, to help, to arrest, to inquire. If the

officer had decided to do nothing, then no force would have been

used. In this sense, the police officer always causes the trouble.

But it is trouble which the police officer is sworn to cause, which

society pays him to cause and which, if kept within constitutional

limits, society praises the officer for causing.

Id. at 406-07 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994)); see also Cole v. Bone,

993 F.2d 1328, 1333 (8th Cir.1993). Thus, de-escalation is not constitutionally mandated.

Indeed, this framework leads to a situation where “a police officer would be justified in

standing on the side of a busy highway, stepping in front of speeding cars and firing into the

windshields under the guise of self-defense. Cox v. Vill. of Pleasantville, 271 F. Supp. 3d 591, 618

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(S.D.N.Y. 2017) (Karas, J.). Nevertheless, it is within this framework that this Court currently

must operate. In this Circuit “’[w]e do not scrutinize whether it was reasonable for the officer to

create the circumstances.” Thornton v. City of Columbus, 727 F. App'x 829, 837 (6th Cir. 2018)

(quoting Thomas v. City of Columbus, 854 F.3d 361, 365 (6th Cir. 2017) (internal quotation marks

and citation omitted). “[A] different Fourth Amendment violation cannot transform a later,

reasonable use of force into an unreasonable seizure.” Id. (quoting Los Angeles v. Mendez, –––

U.S. ––––, 137 S. Ct. 1539, 1544 (2017).

Defendants assert that even if the Court assumes that shooting McShann constituted a

constitutional violation, Plaintiff cannot demonstrate that the law was so “clearly established” as

to give the Defendants fair warning that their conduct was illegal. The Supreme Court has

explained that “the right the official is alleged to have violated must have been ‘clearly established’

in a more particularized and hence more relevant sense: The contours of the right must be

sufficiently clear that a reasonable official would understand that what he was doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Thus, the relevant question is whether

a reasonable officer could have believed that his or her actions were lawful. Id. at 641. “If officers

of reasonable competence could disagree on this issue, immunity should be recognized.” Malley

v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity protects “all but the plainly incompetent

or those who knowingly violate the law.” Id. The doctrine of qualified immunity recognizes that

these officials must routinely make close decisions in the exercise of their authority and that the

law that guides their conduct is often ambiguous and difficult to apply. Davis v. Scherer, 408 U.S.

183, 196 (1984).

21

“Although qualified immunity is an affirmative defense, the ultimate burden is on

the plaintiff to show that the defendant is not entitled to qualified immunity.” Wegener v.

Covington, 933 F.2d 390, 392 (6th Cir. 1992). The plaintiff must prove that a reasonable police

officer in the defendants' position would have clearly understood that he was under an affirmative

duty not to perform the use of force. Wallace v. City of Shelby, 968 F. Supp. 1204, 1211 (N.D.

Ohio 1997).

United States Supreme Court and Sixth Circuit precedent support the conclusion in this

case, even when the record is considered in the light most favorable to Plaintiff, that there are no

genuine issues of material fact which preclude summary judgment in favor of the Defendants, as

their conduct was objectively reasonable and did not violate clearly established law. The use of

deadly force by a police officer is justified “when the factual situation revealed a perceived serious

threat of physical harm to the officer or others in the area from the perspective of a reasonable

officer.” Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005).

Other circuits have upheld a police officer’s use of deadly force when a suspect was not

gripping a gun, but whose hand was “just inches” from his hand. Parks v. Pomeroy, 387 F.3d 949,

957 (8th Cir. 2004). Sixth Circuit caselaw is similar: “A police officer need not wait for a suspect

to open fire on him, much less wait for the suspect to actually hit him, before the officer may fire

back.” Greathouse v. Couch, 433 F. App'x 370, 373 (6th Cir. 2011). Thus, given the state of the

law at the time and the facts of this case—Defendants did not violate a clearly established

constitutional right. “Qualified immunity operates in this case ... just as it does in others, to

protect officers from the sometimes ‘hazy border between excessive and acceptable force’ and to

ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful.”

22

Saucier v. Katz, 533 U.S. at 206 (internal citation omitted). Thus, this Court will grant summary

judgment to Defendants.

Plaintiff alleges to have forensic evidence to show that McShann was not holding the gun

at the time he was shot. (Plaintiff's Opposition, ECF 25; PageID 959). There is no physical

evidence or eye witness testimony that contradicts Howard’s statements that McShann grabbed

the gun. While McShann may have been moving the gun off his lap to exit the car, Officers feared

for their safety in the presence of the man they had roused from sleep.

Plaintiff’s attempts to contradict the physical evidence and the Officers’ statements based

on the report of her expert, Jeremy Bauer, are ineffectual. While Bauer states that: "The lack of

damage to the gun provides clear evidence that McShann was not holding the gun when he was

shot in the hand," (Bauer Report, ECF 25- 4; PageID 1011), Bauer's opinion is not sufficient to

create a genuine issue of material fact. Moreover, the reasoning underlying Bauer’s opinion is

not scientifically valid and his opinion lacks relevance and reliability. First, Bauer's merely

concludes that McShann was not holding the gun when he was shot in the hand. Bauer Report,

ECF 25-4; PageID 1011. Per Bauer's report, Howard fired two shots from his police issued H&K

Binelli model M1 Super 90 shotgun and Knight fired eight shots from his police issued Glock

model 21 Gen 4 .45 caliber pistol. (Bauer Report, ECF 25-4; PageID 995). The autopsy identified

“Multiple (at least 6) gunshot wounds” to McShann's body. (Bauer Report, ECF 25-4; PageID

997).

Bauer's report finds the order of the two shotgun shots to be unknown. (Bauer Report, ECF

25-4; PageID 1006). Likewise, Bauer's report does not address the order of the pistol shots,

whether the shotgun or pistol was fired first, nor whether the weapons were fired simultaneously.

23

Thus, there is no way to determine where McShann was shot first or in what order he suffered

those wounds. Thus, even assuming Bauer's opinion that McShann was not holding the gun when

he was shot in the hand is true, that does not automatically contradict the Officers' testimony that

McShann was pointing a gun at Knight at the time he was shot. The wounds to McShann's back,

right arm, right torso, right forearm, or left upper arm could have happened first, causing McShann

to release the gun.

A speculative expert report cannot be the basis to overcome summary judgment on

qualified immunity and use of force. See e.g. Boyd v. Baeppler, 215 F.3d 594, 603, 604 (6th Cir.

2000) (stating that “[t]he speculation of plaintiff’s expert is not sufficient evidence to create a

genuine issue of material fact” and that “[a]t the summary judgment stage, whether the legal

violation alleged was clearly established at the time of the incident, as well as whether a genuine

issue of material fact exists as to whether the alleged violation occurred, are questions of law for

the court”). Bauer's report alone is insufficient to create a genuine issue of material fact in this

case.

Bauer's opinions are not based on scientific, technical, or other specialized knowledge.

Rather, his opinions are unsupported speculation. Under Daubert, this unreliable and speculative

testimony is inadmissible because the reasoning underlying the testimony is not scientifically valid

and cannot properly be applied to the facts at issue. Daubert, 509 U.S. at 579, 592-93. Because

Bauer has no scientific basis for his opinions and his report only contains speculation as to what

he thinks may have happened, this Court is unable to credit his conclusions.

Bauer also opines that:

Officers in Ohio are generally instructed in annual use of force training/firearms

refresher training that some courts have found that an officer issuing commands to

24

a person holding a gun should expect the person to turn towards the officer and to

raise the barrel of a gun an inch or so when responding to the commands because

that is the most natural reaction when someone yells in your direction but those

actions alone should not cause the officer to believe that he is then facing an

immediate danger of serious bodily harm or death.

ECF 25-11, PageID 1107-08 (citing Estate of Lopez v. Gelhaus, 871 F. 3d 998 (9th Cir. 2017).

The Court notes that Estate of Lopez does not support Bauer’s assertion. See 871 F.3d at 1021.

The case says only, “Turning is also the most natural reaction when someone yells in your

direction from behind.”) Cf. When ‘Yelling Commands’ Is the Wrong Police Response,

https://www.nytimes.com/2016/09/30/us/when-yelling-commands-is-the-wrong-police-

response.html.

For these reasons, Defendants are entitled to qualified immunity and summary judgment

will be awarded to them on Plaintiff’s claim for Unconstitutional Seizure in violation of 42

U.S.C. § 1983.

State Law Claims

Although Plaintiff’s state law claims were properly asserted in this Court by means of the

supplemental jurisdiction provision of 28 U.S.C. § 1367, a court may decline such supplemental

jurisdiction where the court has dismissed all claims over which it has original jurisdiction. 28

U.S.C. § 1367(c)(3). The Court will decline to exercise its supplemental jurisdiction over

Plaintiff’s state law claims.

IV. Conclusion

Because Defendants are protected from Plaintiff’s federal claims by means of qualified

immunity, Defendants’ Motion for Summary Judgment, ECF 13, is GRANTED with regard to

this claim. Because the Court declines to exercise its supplemental jurisdiction over this matter

25

it DISMISSES the remaining claims without prejudice. The captioned cause is hereby

TERMINATED upon the docket records of the United States District Court for the Southern

District of Ohio, Western Division, at Dayton.

DONE and ORDERED in Dayton, Ohio, this Tuesday, February 18, 2020.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE

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