# King v. City of Columbus

> District Court, S.D. Ohio · September 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10383218

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DEARREA KING,

Plaintiff,
Case No. 2:18-cv-1060
v. Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth Preston Deavers

CITY OF COLUMBUS, OHIO, et al.,

Defendants.
OPINION & ORDER
This matter arises on Plaintiff’s Motion for Judgment Notwithstanding the Verdict or in
the Alternative, Motion for a New Trial. (ECF No. 236.) Also considered is Plaintiff’s Motion
for Extension of Time. (ECF No. 238.) For the reasons stated herein, Plaintiff’s Motion is
DENIED.
I. Background
Plaintiff Dearrea King, the grandmother of Tyre King, filed suit against Defendants
Officer Brian Mason and the City of Columbus. (ECF No. 1.) During pretrial litigation, the
Court granted summary judgment to the City, dismissing it from the case. (ECF No. 160.)
Plaintiff’s claims against Office Mason survived.
Beginning on January 17, 2023, the Court held trial on Plaintiff’s remaining claims.
(ECF No. 224.) Plaintiff brought a 42 U.S.C. § 1983 excessive force claim, a 42 U.S.C. § 1983
Equal Protection claim, and a state law claim under ORC § 2125.01 against Defendant Mason.
(ECF No. 1, at 13–16.) Before the jury was given its charge, Plaintiff voluntarily dismissed her
Equal Protection claim and chose to proceed only on a recklessness theory for her state law
claim. (January 23 Trial Transcript, ECF No. 246, at 968.) Plaintiff also made an oral motion
Fed. R. Civ. P. 50(a)(1), requesting judgment in her favor as a matter of law. (Id., at 964.) The
Court denied her motion. (Id., at 965)

The jury returned a verdict for Defendant, finding that Officer Mason did not violate Tyre
King’s constitutional right to be free from excessive force, and that Officer Mason did not act
recklessly and batter Tyre King. (ECF No. 233.) Within 28 days of the jury verdict, Plaintiff
filed her Motion or Judgment Notwithstanding the Verdict or in the Alternative, Motion for a
New Trial on February 22, 2023. (ECF No. 236.) Defendant responded on March 9, 2023.
(ECF No. 237.) Plaintiff replied later that month, on March 24, 2023. (ECF No. 238.) This
motion is fully briefed and ready for decision.

II. Standard
Under Rule 50 of the Federal Rules of Civil Procedure, a court may grant a party
judgment in its favor “if a party has been fully heard on an issue during a jury trial and the court

finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the
party on that issue.” Fed. R. Civ. P. 50(a)(1). If denied at trial, the proponent may later renew
their motion. “The grounds for granting a Rule 50(b) motion are limited. Because such a motion
is the ‘renewal’ of the pre-verdict motion, it may only be granted on the same grounds advanced
in a pre-verdict motion.” Kay v. United of Omaha Life Ins. Co., 709 F. App'x 320, 328 (6th Cir.
2017). Fed. R. Civ. P. 50(b) covers renewed motions for judgment as a matter of law. It is as
follows:
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the
court does not grant a motion for judgment as a matter of law made under Rule
50(a), the court is considered to have submitted the action to the jury subject to the
court's later deciding the legal questions raised by the motion. No later than 28 days
after the entry of judgment—or if the motion addresses a jury issue not decided by
a verdict, no later than 28 days after the jury was discharged—the movant may file
a renewed motion for judgment as a matter of law and may include an alternative
or joint request for a new trial under Rule 59. In ruling on the renewed motion, the
court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Id.
A court may grant a party’s renewed motion “only if in viewing the evidence in the light
most favorable to the non-moving party, there is no genuine issue of material fact for the jury,
and reasonable minds could come to but one conclusion, in favor of the moving party.” Noble v.
Brinker Intern., Inc., 391 F.3d 715, 720 (6th Cir. 2004) (quoting Gray v. Toshiba Am. Consumer
Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001)). When making its decision, a court may “not
weigh the evidence, evaluate the credibility of the witnesses, or substitute [its] judgment for that
of the jury.” Mosby-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595, 602 (6th
Cir. 2018) (quoting Wehr v. Ryan's Family Steak Houses, Inc., 49 F.3d 1160, 1152 (6th Cir.
1991)). In other words, this Court may grant Plaintiff’s motion “only if reasonable minds could
not come to a conclusion other than one favoring the movant.” Id. (quoting Garrison v. Cassens
Transp. Co., 334 F.3d 528, 537 (6th Cir. 2003)).
Under Rule 59 of the Federal Rules of Civil Procedure, a new trial may be granted for
“any reason for which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1)(A). In the Sixth Circuit, courts “uphold the verdict if it was one
which the jury reasonably could have reached; we cannot set it aside simply because we think
another result is more justified.” Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995
(6th Cir. 2012) (citing Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007)). The
Circuit has been clear that “‘a new trial is warranted when a jury has reached a ‘seriously
erroneous result’ as evidenced by: (1) the verdict being against the weight of the evidence; (2)
the damages being excessive; or (3) the trial being unfair to the moving party in some fashion,
i.e., the proceedings being influenced by prejudice or bias.’” Mosby-Meachem v. Memphis Light,
Gas & Water Div., 883 F.3d 595, 606 (6th Cir. 2018) (quoting Holmes v. City of Massillon,

Ohio, 78 F.3d 1041, 1045 (6th Cir. 1996)). “[I]n finding that a jury's verdict was against the
weight of the evidence, the judge must, to some extent at least, substitute[] his judgment of the
facts and the credibility of the witnesses for that of the jury.” Id. Courts are reminded that they
may not set aside a jury’s verdict “simply because it believes that another outcome is more
justified.” Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007) (citing TCP Indus.,
Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir. 1981)).

III. Analysis
a. Judgment as a Matter of Law Pursuant to Rule 50(b)
Plaintiff maintains that she is “entitled to judgment as a matter of law on her claim that
Defendant Mason violated the Fourth Amendment when he shot Tyre King and her claim that
Mason’s actions recklessly caused Tyre’s wrongful death.” (ECF No. 236, at 2.) Plaintiff
explains that “the fact that Tyre King never raised the BB gun at any person and only pointed it

down is undisputed. Based on these undisputed facts, Defendant Mason used excessive deadly
force and Plaintiff is entitled to judgment as a matter of law.” (Id., at 3.) Defendant does not
dispute her summary of the law but does disagree with Plaintiff’s presentation of the events. He
argues that the facts presented at trial establish that “a reasonable jury would have a legally
sufficient evidentiary basis to find for Mason on both the Fourth Amendment excessive force
claim and the state-law wrongful death claim.” (ECF No. 237, at 6.) As support, Defendant
points in part to the following facts, confirmed by its expert witness:
1. Mason was responding to a serious, violent crime. Id. (R.236-4 #7806
07).
2. King attempted to evade arrest by flight. Id. (R.236-4 #7808).
3. King resisted arrest. Id.
4. It was reasonable to think that King’s gun was a real firearm because it
looks like a gun. Id. (R.236-4 #7802).
5. Handguns are deadly. Id. (R.236-4 #7810).
6. An armed suspect can pull a handgun from his waistband, aim, and shoot
in as little as two-tenths of a second. Id. (R.236-4 #7813-14).
7. King’s age was not relevant to the threat he posed. Id. (R.236-4 #7814).
8. This was a tense, uncertain, and rapidly evolving situation. Id. (R.236-4
#7808).
(ECF No. 237, at 6.)
Under these facts, Defendant argues, Officer Mason acted reasonably in shooting Tyre
King.
The Sixth Circuit “has held that the right to be free from excessive force is a clearly
established Fourth Amendment right.” Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001).
The Circuit, and its associated lower courts, employ “an objective-reasonableness test to
determine whether an officer has used excessive force in violation of the Fourth Amendment,
asking ‘whether the officer's actions are objectively reasonable in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.’”
Thornton v. City of Columbus, 727 F. App'x 829, 836 (6th Cir. 2018) (quoting Graham v.
Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). The “trial court must
perform a ‘careful balancing of the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental interests at stake.’” Id. (quoting
Graham v. Connor, 490 U.S. 386, at 396.) The balancing test requires courts to pay “careful
attention to the facts and circumstances of each particular case, including [(1)] the severity of the
crime at issue, [(2)] whether the suspect poses an immediate threat to the safety of the officers or
others, and [(3)] whether he is actively resisting arrest or attempting to evade arrest by fight.”
Graham v. Connor, 490 U.S., at 396 (parentheses added).

“The 'reasonableness' of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396. In other words, courts “consider the officer's reasonableness under the
circumstances he faced at the time he decided to use force.” Thomas v. City of Columbus, 854
F.3d 361, 365 (6th Cir. 2017) (citing Livermore v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007).
Courts apply this approach because “police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount

of force that is necessary in a particular situation.” Id. at 396-97. The Sixth Circuit cautions that
“[i]n making this judgment, we must be careful not to substitute ‘our personal notions of proper
police procedure for the instantaneous decision of the officer at the scene.’” Mullins v. Cyranek,
805 F.3d 760, 766 (6th Cir. 2015) (quoting Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992).
“Instead, this court must adopt a ‘built-in measure of deference to the officer’s on-the-spot
judgment about the level of force necessary in light of the circumstances of the particular case.’”
Thornton v. City of Columbus, 727 F. App'x at 836 (quoting Burchett v. Kiefer, 310 F.3d 937,
944 (6th Cir. 2002)).

The Sixth Circuit has made clear that this test is fact specific. Relevant to this case, the
Circuit “has recently rejected a ‘categorical rule that force can only be reasonable if a suspect
raises his gun.’” Thornton v. City of Columbus, 727 F. App’x 829, 838 (6th Cir. 2018) (quoting
Thomas v. City of Columbus, 854 F.3d 361 (6th Cir. 2017)).
Given this prior precedent, and the facts presented at trial, the Court must concur with
Defendant. Despite Plaintiff’s assertions, the jury heard sufficient evidence to conclude that
Officer Mason’s shooting was unreasonable. While the jury did not hear that Tyre King pointed
a gun at Officer Mason, such an action is not always required before an officer can respond with
deadly force. Further, the jury did hear that King was in the process of drawing his weapon.1

Officer Mason testified that King “had pulled the firearm out of his waistband. It had cleared his
waistband, but he did not point it at me.” (January 18 Trial Transcript, ECF No. 241, at 205.)
The surrounding events, when examined in the light most favorable to Defendant, also
support the conclusion that Officer Mason’s acted reasonably. First, Officer Mason was
responding to an armed robbery, during which the suspect pointed a gun at the victim. (Id., at
223.) While Officer Mason was not at the scene of the crime, the jury heard testimony that

dispatch informed him that the suspect was “wearing all black, including a black hoodie… baggy
pants.” (Id., at 186.) The jury also heard that Demetrius Braxton, who was with Tyre during his
confrontation with Officer Mason, matched the dispatcher’s description. (Id., at 185–86.) Given
these facts, the jury could conclude that Officer Mason was responding to an extremely severe
crime, and that he knew Braxton and King were suspects.
The jury could have also reasonably concluded that King was actively resisting arrest and

that he posed an immediate threat to Officer Mason. Officer Mason testified that he ordered
King and Braxton to “get down,” but that King didn’t comply. (January 18 Trial Transcript,
ECF No. 241, at 184.) Instead of complying, Officer Mason observed King grabbing “the

1 This weapon was a BB gun. However, Officer Mason did not, and had no reasons to, know this
at the time of the shooting. As courts must perform their analysis “from the perspective of a
reasonable officer on the scene” the Court will treat the weapon as if it were real. Graham, 490
U.S. at 396
firearm that was in his waistband and [begin] tugging on the firearm multiple times.” (Id., at
199.) He did so up to five times before Officer Mason fired his first shot. (Id.). Given these
facts and considering the mere seconds in which this interaction took place, the Graham
balancing test supports the conclusion that deadly force was used reasonably. As such, the

Jury’s verdict cannot be overturned.
Additionally, the Court already addressed this question in our order on Defendant’s
motion for summary judgment. There, we found that:
According to Mason, King went for the gun in his waistband but had trouble pulling
it out, tugging on it at least three times. According to Mason, it was only when King
raised the gun that Mason fired. If that is indeed what happened, then Mason’s
decision to use deadly force was not unreasonable. Regrettable, tragic, but not
unreasonable…
(ECF No. 150, at 9.)
Plaintiff’s Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) is DENIED.
b. New Trial Pursuant to Rule 59(a)
Plaintiff argues that she is entitled to a new trial because of several more than harmless
errors. (ECF No. 236, at 7.) Plaintiff points to numerous mistakes which, she contends, caused
the jury to return an unjust verdict. The Court addresses Plaintiff’s points in turn below. They
are not well taken.

i. Manifest Weight of the Evidence
Plaintiff maintains that she is entitled to a new trial because the “verdict was against the
manifest weight of the evidence.” (ECF No. 236, at 8.) She states that “[c]omparing the proofs
and weighing the evidence, it is clear that the manifest weight of the evidence supports that Tyre
King was fleeing when Defendant Mason shot him three times.” (Id.) “This is a critical fact,
because if Tyre was fleeing, then the use of force was objectively unreasonable.” (Id.)
Defendant disagrees, arguing that the clear weight of the evidence does not support the
contention that Tyre King was fleeing when he was shot. (ECF No. 237, at 9.) The Court
concurs with Defendant.

As support for her claim, Plaintiff first states that “the undisputed evidence demonstrated
that Defendant Mason’s first shot was the head shot that entered Tyre King’s temple.” (ECF No.
236, at 8.) Given the location of the bullet wound, Plaintiff argues “this requires the Court to
find that Tyre King was not facing Mason at the time he pulled the trigger, and instead to find
that Tyre was facing away from Mason at the time that Mason began shooting.” (Id., at 9.)
However, the facts elicited at trial do not indisputably establish the order of the shots.

The only witness who testified to as to the order of shots was Plaintiff’s expert Dr.
Jeremy Bauer. When asked on direct examination “what you believe may be more likely as far
as what the first shot may have been,” Dr. Bauer responded “[l]ikely the shot to his head.”
(January 18 Trial Transcript, ECF No. 241, at 260.) However, on cross examination, Dr. Bauer
admitted that, during deposition, he opined that he “couldn't tell the order of” the first two shots
fired at King. (Id., at 306.) Meaning that, at least at the time of his deposition, Dr. Bauer did not
know if the first shot hit King’s head. Dr. Bauer also admitted that he repeated this conclusion in

his expert report. (Id.) Given these inconsistencies, a reasonable jury could disregard, or place
less weight upon Dr. Bauer’s testimony. Further, even if the first shot was to the side of King’s
head, it does not necessarily follow that King must have been fleeing at the time. It does not
follow that King was actively “running away.” (ECF No. 236, at 8.) While his head may not
have been facing Officer Mason, his body may have been. This is especially true given the short
duration and chaotic events of the incident. The jury could reasonably conclude that King
merely turned his head at the time of the shooting.

Plaintiff also relies on the testimony of Sister Anna Skora, Demetrius Braxton, and
William Scott for support. (ECF No. 236, at 10.) She states that “Sister Anna Skora testified
that Tyre King tried to run away and never tried to shoot anyone,” that “Demetrius Braxton
testified that Tyre was running away when Mason shot him,” and “William Scott testified that it
looked like at least two of the shots went into this back, further demonstrating Tyre’s body
position facing away from Mason.” (Id.) Plaintiff goes on to assert that “[e]ven Mason agrees
that he assumed that Tyre was trying to get away from law enforcement by stutter stepping and
was trying to figure out what to do.” (Id.) Given all of this witness testimony, Plaintiff argues
“[t]he manifest weight of the evidence demonstrates that Tyre had then decided to continue

fleeing. Regardless of what motions he was making with his arm, it is undisputed that Tyre King
did not pose such a threat that it would have been justified to shoot him as he fled.” (Id., at 10–
11.)
The Court cannot concur. First, Plaintiff misconstrues Sister Skora’s testimony. During
trial, she was asked “[a]nd was he still doing that, running left and right like that, at the time that
the police officer shot him?” (Deposition of Sister Skora, ECF No. 126, Exhibit 1, at 55.) She

answered “No, he was straight. He stood up. He stood up straight.” (Id.)
Second, Plaintiff ignores the credibility issues with Braxton’s testimony. Braxton
admitted on direct examination that the statement he gave to police the night of the shooting was
false. (January 19 Trial Transcript, ECF No. 242, at 444–45.) He also admitted to taking
cocaine and marijuana that day and that he changed numerous aspects of his testimony between
his deposition and trial. (Id., at 446, 454–55.) Further, Braxton answered affirmatively on cross
examination that he “could not see whether or not Mr. King pulled out the gun because [he]
could not see that far.” (Id., at 476.) Finally, Akilah Bulger, Braxton’s girlfriend at the time,
impeached his testimony. When asked whether “Demetrius Braxton told you that Ty pointed the
gun at the officer,” and she answered yes. (January 20 Trial Transcript, ECF No. 243, at 729.)

Third, Plaintiff’s reliance on William Scott’s testimony is misplaced because it is
contradicted by the physical evidence. As Plaintiff asserts, Scott did testify that King was shot in
the back. (January 19 Trial Transcript, ECF No. 242, at 343.) However, his testimony is
disproven by the physical evidence, including Plaintiff’s expert witness. (January 18 Trial
Transcript, ECF No. 241, at 259–263, 278–79.) Additionally, Defendant played an audio call at
trial, captured when Scott called 911, in which Scott stated, “I'm no witness to nothing.”
(January 19 Trial Transcript, ECF No. 242, at 355–56.)

Fourth, Plaintiff ignores part of Officer Mason’s testimony. Officer Mason testified that
King “[h]ad the grip” of his gun “and was tugging up to pull the firearm” when Officer Mason
shot him. (January 18 Trial Transcript, ECF No. 241, at 214.)

Finally, even if King had decided to flee at the time of the shooting, that decision would
not change the Court’s analysis, as the jury could still conclude that he was pulling his weapon.
As the Court mentioned above and, in its summary judgment order, such an action, when put in
context with the prior robbery, failure to obey commands, and physical location, could make
King an imminent threat in a reasonable officer’s eyes and justify the use of deadly force.
(“According to Mason, it was only when King raised the gun that Mason fired. If that is indeed
what happened, then Mason’s decision to use deadly force was not unreasonable. Regrettable,
tragic, but not unreasonable…) (Summary Judgment Order, ECF No. 150, at 9.) The Court
rejects Plaintiff’s argument that the motions King made with his arms are irrelevant to Officer
Mason’s decision to shoot.

The Court rejects Plaintiff’s argument that the verdict in this case was against the
manifest weight of the evidence.
ii. Jury Instructions

Plaintiff contends that she is entitled to a new trial because one jury instruction “does not
accurately state the law and caused prejudice to Plaintiff.” (ECF No. 236, at 11.) The
challenged instruction is as follows: “[i]f you decide Officer Mason’s actions were objectively
reasonable, then you must find that he did not act recklessly.” (Id.)
Plaintiff’s challenge fails. The Sixth Circuit has directly addressed this issue a number of
times. The Sixth Circuit has held that if “the officers were objectively reasonable in shooting

[King], it logically follows that they could not have been reckless in shooting [King].” Pollard
v. City of Columbus, 780 F.3d 395, at 404 (6th Cir. 2015); see also Ewolski v. City of Brunswick,
287 F.3d 492, 517 (6th Cir. 2002).
The Circuit reiterated its position in the recent case of Cooper v. City of Columbus.
There, it analyzed this issue, finding that an officer’s actions cannot be both objectively
reasonable and reckless at the same time. The Circuit reasoned as follows:

Ohio law immunizes police officers from suit unless their “acts or omissions were
with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev.
Code § 2744.03(A)(6)(b). Plaintiff contends that the officers acted in a reckless
manner by “escalating” the situation—looking for criminal activity and then
opening the car door and grabbing Bell-McGrew’s hand—and that statutory
immunity cannot lie given his contention that an officer’s conduct can be both
objectively reasonable under the Fourth Amendment and reckless for purposes of
Ohio’s statutory immunity provision. We disagree. Plaintiff is correct that
“[s]tatutory immunity under Ohio law, which applies to state law claims, is distinct
from federal qualified immunity.” Stewart v. City of Euclid, 970 F.3d 667, 676 (6th
Cir. 2020). That notwithstanding, we have said many times over that “[w]hen
federal qualified immunity and Ohio state-law immunity under § 2744.03(A)(6)
rest on the same questions of material fact, we may review the state-law immunity
defense through the lens of the federal qualified immunity analysis.” Downard for
Est. of Downard v. Martin, 968 F.3d 594, 602 (6th Cir. 2020) (internal citation
omitted). And in the context of a police officer’s use of deadly force, the analysis
coincides: “[I]f an officer has probable cause to believe that a person poses an
immediate threat of serious injury, the officer’s use of deadly force against that
person is not reckless.” Sabo v. City of Mentor, 657 F.3d 332, 337 (6th Cir. 2011).
Here, because both officers reasonably perceived a serious threat of injury, they are
entitled to statutory immunity under Ohio law. Hicks, 958 F.3d at 441 (holding that
because an officer’s use of deadly force was reasonable, he was entitled to statutory
immunity under Ohio law); Mullins, 805 F.3d at 769 (“Because we find that [the
officer]’s use of deadly force was not objectively unreasonable under the
circumstances, it follows that he did not act with ‘malicious purpose, in bad faith,
or in a wanton or reckless manner as required to avoid statutory immunity under
Ohio law.”). Nor does it matter that they “escalated” the situation—no rational juror
could conclude their actions displayed “conscious disregard of or indifference to a
known or obvious risk of harm to another that is unreasonable under the
circumstances and is substantially greater than negligent conduct.” Downard, 968
F.3d at 602 (quoting Argabrite v. Neer, 149 Ohio St. 3d 349, 2016- Ohio 8374, 75
N.E.3d 161, 164 (Ohio 2016)).
Cooper, 2023 U.S. App. LEXIS 2629, *25-27 (6th Cir.)
Ohio’s courts agree with the federal on this point of law. The Second Appellate District
case of Jordan v. Howard illustrates this concord. There, the court reasoned that a finding of
objective reasonableness in federal court barred plaintiff’s wrongful death claim in state court.
The Court explained as follows:
The trial court concluded that collateral estoppel applied because the same evidence
would sustain both the state issue and the issue litigated in federal court. We agree.
The underlying facts are the same if the issue were phrased as whether the officers
acted recklessly or if it were phrased as whether the officers acted reasonably for
purposes of qualified immunity. Notably, “collateral estoppel prohibits relitigation
of “a fact or a point that was actually and directly at issue in a previous action.”
Fort Frye Teachers Assn., 81 Ohio St.3d at 395, 692 N.E.2d 140. Here, the federal
district court granted summary judgment to the police officers on the basis of
qualified immunity, finding that “their conduct was objectively reasonable and did
not violate clearly established law.” Jordan I, 440 F.Supp.3d at 857. The court also
stressed that “[t]he 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.’“ Id., quoting
Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005). As indicated previously, the
federal case was resolved on summary judgment, and the parties had a full
opportunity to litigate.
In view of the findings in the federal district and appellate courts that the officers’
use of deadly force (resulting in McShann’s death) was reasonable, and that they
did not violate established law, it would be factually and logically inconsistent to
conclude in this action that the officers were reckless in causing McShann’s death
and, therefore, were not entitled to immunity under R.C. 2744.03(A)(6).
Accordingly, the trial court did not err in applying collateral estoppel to the
wrongful death claim brought by Jordan. As a result, the first assignment of error
is without merit and is overruled.
Jordan v. Howard, 2d Dist. Montgomery No. 29190, at ¶ 71-75 2021-Ohio-4025
In light of the plethora of Sixth Circuit cases, as well as the state court support, on this
issue, the Court finds that the challenged instruction is not erroneous. Plaintiff’s argument fails.
iii. Admission of Evidence
Plaintiff maintains that the Court erroneously prevented the admission of relevant
evidence and allowed the admission of irrelevant evidence, materially affecting the jury’s
ultimate verdict. (ECF No. 236, at 15.) Plaintiff points to five erroneous rulings. The Court will
take each of them in turn.
1. Cover and Communication Theory
Plaintiff contends that this Court erroneously excluded the opinions of Plaintiff’s expert,
Melvin Tucker, on the issue of his cover and communicate theory. (ECF No. 236, at 16.) To
Plaintiff, this “failure to admit relevant evidence amounted to more than harmless error.” (Id.)
The Court already addressed and rejected Plaintiff’s argument in two different orders. (ECF No.
223, at 7.); (ECF No. 222, at 6.) No new evidence was elicited at trial regarding this point. It
fares no better now.
2. Defendant Mason’s Prior Uses of Force

Plaintiff argues the Court’s decision to exclude evidence of Officer Mason’s prior uses of
force was “erroneous and prejudicial because evidence regarding Mason’s state of mind was
relevant to the state law claim and to the availability of punitive damages.” (ECF No. 236, at
19.) The Court already addressed this issue in two opinions. (ECF No. 222, at 7.) (ECF No.
223, at 13–15.) There, the opinions rejected Plaintiff’s assertion that such evidence was
admissible under Fed. R. Evid. 403(b). Plaintiff did not elicit new evidence at trial sufficient to
convince this Court of the admissibility of Mason’s prior uses of force. The Court rejects
Plaintiff’s argument.

3. Defendant Mason’s Post-incident Reassignment
Plaintiff maintains that the Court “erred in excluding evidence regarding the basis for
Defendant Mason’s post-incident reassignment.” (ECF No. 236, at 22.) The Court already
addressed this issue in a previous opinion. (ECF No. 223, at 15–16.) There, the opinion
concluded that the “‘issue before the jury is whether, at the moment that Mason shot King, his

use of deadly force was objectively reasonable,” not his supervisor’s opinion of Mason’s
suitability for a patrol assignment. (Id., at 15.) (quoting ECF No. 193, at 4). Plaintiff did not
present any new evidence at trial regarding Officer Mason’s reassignment. We therefore rejected
Plaintiff’s argument. Plaintiff’s contention that the Court erred in excluding evidence regarding
the basis for Officer Mason’s reassignment is rejected.
4. Lack of DNA Testing

Plaintiff maintains that this Court committed reversible error when it prevented Plaintiff
from questioning Officer Mason regarding “whether or not he had submitted a DNA sample for
comparison to the DNA samples found on the BB gun.” (ECF No. 236, at 23.) She argues that
this evidence is “relevant to the question of how the BB gun traveled from Tyre’s position to the
location it was found in, and significantly undercuts Defendant Mason’s credibility.” (Id.) In
essence, the questioning would imply that Defendant Mason deliberately moved the gun to a

different position to support his claim that the force used was reasonable. No testimony
supported this claim.
The Court addressed this point in trial by stating:
[A] jury is allowed to do one thing and not another. They are allowed to use their
common sense and draw inferences. If one fact exists, from that they can infer
another fact exists.
At the same time, though, these instructions -- that's why we always tell them you
take the whole packet, not one page at a time. There's an assumption that the law
was followed unless there's proof otherwise.
And if you were asking -- if the theory here were that -- if there were one witness
who said he threw the gun and this is where the gun lands, you can make that
argument. But there's no witness that says that.
I would have to assume, not just a different set of facts, but a different set of facts
and basically something akin to a criminal conspiracy, to put the gun in a place
where it wasn't at a crime scene.
So, respectfully, I get the argument. It just isn't developed with enough facts.
Otherwise, it ends up in the realm of speculation.
(January 23 Trial Transcript, ECF No. 246, at 963.)
The Court stands by its ruling. As Defendant points out, the presentation of Plaintiff’s
theory at trial would have “invite[d] the jurors to draw inference upon inference upon inference
in the hopes that they would speculate that Mason might have pulled the gun out of King’s
waistband and threw it under the car’s tire.” (ECF No. 237, at 23.) As the probative value of
Plaintiff’s theory is significantly outweighed by the unfair prejudice it would cast upon
Defendant, it is excludable under Rule 403 of the Federal Rules of Evidence. Plaintiff’s renewed
argument is rejected.

5. Evidence of Facts Not Known to Defendant Mason
Finally, Plaintiff argues that “the Court erroneously admitted the testimony of Michael
Ames.” (ECF No. 236, at 25.) She explains that “Ames’ testimony was exclusively evidence of
facts not known to Defendant Mason at the time, and thus irrelevant to the analysis of whether
his use of deadly force was reasonable.” (Id.) Ames was the robbery victim. Mason was
responding to the same armed robbery when he encountered King. The Court found that his

testimony was part of the story in this case. The Court has already addressed and rejected this
argument in a previous order. (ECF No. 223, at 26–27.) No new evidence was elicited at trial
regarding the point. Plaintiff’s argument fares no better now. Plaintiff’s Motion for a new trial
under Fed. R. Civ. P. 59 is DENIED.
IV. Conclusion

For the reasons stated herein, Plaintiff’s Motion for Judgment NOV or in the Alternative,
Motion for a New Trial is DENIED. (ECF No. 236.) Plaintiff’s Motion for Extension of Time
is DENIED as MOOT. (ECF No. 238.)

IT IS SO ORDERED.

9/19/2023 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383218. Public record. Not legal advice.