Kohler v. Brown

CLERKS OFFICE U.S. DIST. C

AT LYNCHBURG, VA

FILED

IN THE UNITED STATES DISTRICT COURT 9/22/2023

FOR THE WESTERN DISTRICT OF VIRGINIA | aypa a. ausTIN, CLERK

ABINGDON DIVISION BY: s/ ARLENE LITTLE

DEPUTY CLERK

ASHLEY BROOKE KOHLER, AS )

ADMINISTRATOR OF THE ESTATE __)

OF JONATHEN BLAKE KOHLER, )

DECEASED, )

)

Plaintiff, ) Case No. 1:21CV00028

)

V. ) OPINION AND ORDER

)

JONATHAN RICHARD BROWN, ) JUDGE JAMES P. JONES

)

Defendant. )

Samuel E. White, TRI-CITIES LAW FIRM, Kingsport, Tennessee, for Plaintiff;

Jim H. Guynn, Jr., and John R. Fitzgerald, GUYNN WADDELL, P.C., Salem, Virginia,

for Defendant.

Following a fatal police shooting, the deceased’s representative has sued

Jonathan Richard Brown, a police officer with the Bristol, Virginia, Police

Department pursuant to 42 U.S.C. § 1983, claiming the unconstitutional use of

excessive force. The plaintiff has also asserted pendent state claims for battery and

wrongful death. The defendant has moved for summary judgment, invoking

qualified immunity. The motion has been briefed and is ripe for decision.!

For the reasons explained, I will enter summary judgment for the defendant

on all claims.

' T will dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument would not

significantly aid the decisional process.

I.

The undisputed facts and the disputed facts viewed in the light most

favorable to the plaintiff are detailed below. The facts are taken from the summary

judgment record, including declarations, body-worn camera (bodycam) video,

parking lot surveillance video recorded on a closed-circuit television camera

(CCTV2), the Dispatch Report, recordings of 911 calls, the Incident Report, and

the Autopsy Report.2

At approximately 3:17 a.m. on March 30, 2021, defendant Officer Brown,

and fellow officers John Carty, Christopher Stine, Erik Hinchey, and Timothy

Sizemore, were together when a 911 operator notified them of calls about gunshots

received from motel guests in building 120 at the Rodeway Inn. One caller

reported seeing a white or silver Toyota pickup truck leaving the area after hearing

the shots. Another caller who lived nearby heard the shots and saw a silver Ford

pickup truck with farm tags and a loud motor leaving the area. Brown requested

that a BOLO (be-on-the-lookout) warning be issued so that officers in the adjacent

city of Bristol, Tennessee, would be aware of the descriptions.

2 The plaintiff objects to two of the exhibits the defendant attached to his brief.

Those exhibits are a video from a different surveillance camera, CCTV1, showing the

deceased firing a gun while in his car before the officers arrived and text messages

exchanged between Kohler and his girlfriend Summer Cook, in which he admitted

shooting up the motel. Mem. Supp. Mot. Summ. J. Ex. 5, CCTV1, and Ex.10, Cook Text

Messages, ECF Nos. 43-5 and 43-10. In evaluating the reasonableness of an officer’s

actions on the scene, “the use of hindsight must be avoided.” Waterman v. Batton, 393

F.3d 471, 477 (4th Cir. 2005). I thus have not considered those exhibits in reaching my

decision to grant summary judgment.

After the dispatcher’s notification, the officers, including defendant Brown,

travelled to the Rodeway Inn in separate patrol cars. Stine responded first and

Cary went with him to provide backup. Hinchey, Sizemore, and Brown followed

shortly thereafter to provide additional backup Carty and Stine carried their

department-issued rifles. Brown carried his personal AR-15 style rifle. Sizemore

had his department-issued pistol. They approached building 120 with their

weapons drawn and encountered a white male who they quickly determined was

not the shooter and not a threat. Stine and Sizemore continued to clear the

courtyard of the motel while Carty and Brown entered a breezeway that led to the

motel’s back parking lot. Carty and Brown noticed a red Ford Mustang in a

parking space with a white male, who would later be identified as Kohler,3 the

deceased, in the driver’s seat.4

The events that followed occurred within a span of approximately two

minutes. As shown by the CCTV2 video, within two seconds, Kohler put the car

in reverse, and started to back out of the parking space. Carty shined the light on

the car, held up his hand, and directed Kohler to stop. Kohler complied and Carty

3 Mem. Supp. Mot. Summ. J. Ex. 6, ECF No. 43-6. This video shows the bulk

of the events, which I detail in chronological order with references to the time

stamps in an Appendix to this Opinion.

4 The plaintiff estate administrator will be referred to herein as the “plaintiff,”

while the deceased will be referred to as “Kohler” or the “deceased.”

approached Kohler, whose window was rolled down, and he explained the reason

for the officers’ presence. Kohler immediately denied being the shooter. He

appeared intoxicated and nervous, sweating profusely with bloodshot eyes and

dilated pupils, according to Officer Cary. Carty asked for Kohler’s identification

and Kohler provided it. Carty took Kohler’s driver’s license and then walked to

the rear of the car, but he did not stand directly behind it. He called dispatch,

relaying the information from Kohler’s driver’s license. Meanwhile, Stine

replaced Carty at the driver’s side door, shining a light into the car. While Carty

checked Kohler’s identification, the officers repeatedly instructed Kohler to stop

reaching for things in his car and to keep his hands visible. Brown moved to the

passenger side of the car and also shined a light inside the car.

Carty returned with Kohler’s license. He told Kohler to get out of the car.

When Kohler asked for a reason, Carty answered because he had told him to do so.

Kohler refused. He informed the officers he was leaving, and then he rolled the

window up. Stine ordered Kohler to roll the window down. Kohler did not

comply. Instead, he started slowly backing out of the parking space. Stine and

Brown aimed their weapons at Kohler and Carty shouted a warning at the two

officers about crossfire. Stine used the muzzle of his gun to repeatedly strike the

driver’s side window. Kohler continued to drive the car in reverse, turning the

wheels as he backed. Brown walked in the same direction as the vehicle, toward

the center of the parking lot. Kohler stopped, with the car facing the only exit from

the parking lot. Cars were parked on both sides exit, leaving Kohler a narrow path

of escape. Carty moved into a position that placed him in front of the car,

alongside Brown. The front of Kohler’s car was approximately fifteen feet away

from the officers. He accelerated in their direction and Brown immediately fired

shots from his rifle at Kohler through the windshield. The car continued to move

forward and to the right, running into a parked vehicle and stopping, with Kohler

slumped over, eyes closed. One of the officers can be heard on a bodycam video

saying, “He’s dead.”

In time, paramedics arrived and confirmed Kohler’s death. Afterwards, a

handgun and spent cartridges were found in the car. An autopsy revealed that

Kohler sustained gunshot wounds to his head and neck, resulting in brain injuries,

skull fractures, and extensive neck injuries. A medical examiner concluded that

Kohler had died from his injuries.5

5 In accordance with Waterman, I have not considered the loaded handgun and

spent cartridges found after the shooting in Kohler’s car. Also, I have not considered the

presence of methamphetamine reported on Kohler’s post-mortem toxicology test. Officer

Brown was criminally charged with homicide as a result of Kohler’s death but acquitted

by a jury. Bristol police officer found not guilty in murder case, WCYB-TV, Apr. 27,

2022, https://wcyb.com/news/local/bristol-virginia-police-officer-to-not-testify-in-murder

-case.

II.

The plaintiff asserts claims against Brown under 42 U.S.C. § 1983 for

excessive force in violation of the Fourth and Fourteenth Amendments, as well as a

state law wrongful death claim pursuant to Va. Code. Ann. § 8.01-50, and a

common law battery claim. Brown has moved for summary judgment, arguing the

following: (1) that the Fourteenth Amendment is not applicable because its

prohibitions against excessive force applies to pretrial detainees or arrestees, and

Kohler had not been arrested; (2) that the use of force was objectively reasonable

under Fourth Amendment analysis; (3) that he is entitled to qualified immunity if

there was a violation of the Fourth Amendment because he did not violate a clearly

established right; and (4) that the state law claims fail because Brown was legally

justified in using reasonable force, and that he is entitled to good faith immunity

under state law.

The plaintiff’s response appears to concede that the Fourteenth Amendment

does not apply.6 The plaintiff contends that the officers violated the Fourth

6 I agree that the Fourteenth Amendment does not apply. If a suspect has been

arrested, then the Fourteenth Amendment governs excessive force claims. Orem v.

Rephann, 523 F.3d 442, 446 (4th Cir. 2008). While seemingly conceding that the Fourth

Amendment, rather than the Fourteenth Amendment, applies before or during an arrest,

Kohler points to the Fourth Circuit’s acknowledgment in Orem that “[t]he point at which

Fourth Amendment protections end and Fourteenth Amendment protections begins is

often murky.” Id. However, the Fourth Circuit drew a bright line between a person who

experiences excessive force after an arrest versus a person who experiences such force as

the target of an investigation or during the course of an arrest. Id. Only the Fourth

Amendment because the force was not objectively reasonable under the

circumstances, that Brown is not entitled to qualified immunity because his

conduct contravened clearly established law, that the state claims are viable

because Brown’s use of force was not reasonable, and that he is not protected from

suit by good faith immunity. The plaintiff’s position stands on three points of

disagreement. First, the parties dispute Kohler’s rate of speed and whether Brown

could have avoided danger by moving out of the car’s path. Second, Kohler

questions whether the decedent had homicidal intent. Third, Kohler argues that

Brown obviously panicked, causing him to shoot Kohler.

Under Rule 56(a), summary judgment is proper “if the movant shows 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. 56(a). A court must consider the

summary judgment record, including the pleadings, depositions, answers to

interrogatories, admissions, and affidavits filed by the parties. Celotex Corp. v.

Catrett ex rel. Catrett, 477 U.S. 317, 322 (1986). A fact is material if “its

existence or non-existence could result in a different jury verdict.” JKC Holding

Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). “A dispute

is genuine if a reasonable jury could return a verdict for the nonmoving party.”

Amendment governs claims of excessive force that happened during an investigatory

detention or the course of an arrest. Id.

Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).7 Irrelevant

factual disputes are not considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

At the summary judgment stage, the movant bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477

U.S. at 323. The burden then shifts to the nonmovant to establish a specific

material fact in dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986). Courts view the facts and draw all reasonable inferences

in favor of the nonmovant. Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir.

2013). However, “the nonmoving party must rely on more than conclusory

allegations, mere speculation, the building of one inference upon another, or the

mere existence of a scintilla of evidence.” Johnson v. United Parcel Serv., Inc.,

839 F. App’x 781, 783 (4th Cir. 2021) (unpublished). The jury, rather than the

judge, determines credibility, weighs evidence, and draw inferences from the facts.

Anderson, 477 U.S. at 255.

III.

Defendant Brown contends that he is entitled to qualified immunity with

respect to the plaintiff’s § 1983 claim. Federal law shields police officers from

civil liability as long as their conduct does not violate clearly established law that a

7 I have omitted internal quotation marks, citations, and alterations here and

throughout this opinion unless otherwise noted.

reasonable officer should have known. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). This protection ensures that officers are liable for only clear transgressions

instead of bad guesses in situations where the law is unclear. Schultz v. Braga,

455 F.3d 470, 476 (4th Cir. 2006). Qualified immunity is immunity from suit, not

just from liability; therefore, the question of qualified immunity must be decided

before trial. Id. A court deciding the applicability of qualified immunity must

apply a two-step test. The prongs of this test need not be decided in a particular

order. Hensley ex rel. N.C. v. Price, 876 F.3d 573, 580 (4th Cir. 2017). The court

must determine whether a constitutional violation occurred and whether the right

violated was clearly established. Tobey v. Jones, 706 F.3d 379, 385 (4th Cir.

2013).

I start with the first prong of the analysis, whether there was a violation of

Kohler’s constitutional rights. A claim that a law enforcement officer used

excessive force must be analyzed under the Fourth Amendment’s reasonableness

standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness

inquiry is an objective one, examining whether a reasonable officer would have

concluded that an existing threat made the force used necessary under the totality

of those circumstances. Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). I

must determine whether the defendant’s actions were objectively reasonable

without using hindsight, and with the understanding that law enforcement officers

are often forced to make split-second decisions under rapidly evolving

circumstances. Id. I will consider the information available to Brown immediately

before and at the moment he began shooting. Hensley, 876 F.3d at 582. Three

factors guide the determination: “(1) the severity of the crime; (2) whether the

suspect posed an immediate threat to the safety of the officers or others; and (3)

whether he is actively resisting arrest or attempting to evade arrest.” Knibbs ex rel.

Knibbs v. Momphard, 30 F.4th 200, 214 (4th Cir. 2022).

The first factor, the severity of the crime, requires considering the criminal

activity that the officers witnessed and the crimes that had been reported. Moody

v. City of Newport News, 193 F. Supp. 3d 530, 548 (E.D. Va. 2016). The

undisputed evidence shows that the officers initially stopped Kohler because they

were investigating reported gunshots at that location, and they were looking for the

shooter. The dangerous nature of the suspected criminal activity was serious. The

situation grew more concerning when Kohler attempted to flee by driving toward

two officers standing in front of his car, blocking his path to an exit. Russell, 247

F.3d at 132 (finding that the initially suspected criminal activity at issue when an

officer approached a suspect became irrelevant when the officer reasonably

believed the suspect posed a deadly threat). Knight ex rel. Graham v. City of

Fayetteville, 234 F. Supp. 3d 669, 686 (E.D.N.C. 2017) (finding a police officer’s

changed perspective about a fluid situation reasonable where a suspect fled while

possessing a firearm, making an already serious situation a grave risk). Reports of

gunshots at an occupied motel suggested a serious crime was afoot. Kohler’s

interaction with the officers, his noncompliance, and driving his car in the officers’

direction would have led reasonable officers to conclude that Kohler was on the

verge of committing a more serious crime while fleeing.

I now turn to the third factor, resistance, and flight. Kohler refused to exit

his car and then attempted to use that car to flee. Although Carty asked Kohler to

leave his car, Kohler’s interaction with the officers had not yet progressed to an

active arrest. The video evidence shows that Kohler started to flee from officers

who ordered him to stop, banged on his window, and trained their guns on him.

This factor favors the defendant.

Although the first and third factors are instructive, the defendant’s claim to

qualified immunity rests on the second factor — whether Kohler posed an

immediate threat to their safety or to the safety of others. I recognize that the

parties dispute certain facts in this case: (1) whether Kohler was driving slowly and

whether the officers could have avoided danger by moving out of the way of the

car rather than shooting him, (2) whether Kohler had homicidal intent, and (3)

whether Brown panicked before shooting Kohler. These issues go directly to the

second factor. The plaintiff argues that these disputed facts could lead a

reasonable jury to find that the defendant did not have probable cause to suspect

Kohler posed an immediate threat of serious physical harm at the moment the

defendant actually used deadly force. I disagree.

The plaintiff has proffered no evidence that directly controverts the officers’

declarations or the videos that support Brown’s claim that he did not open fire until

Kohler drove the car in the officers’ direction. The officers blocked his path to the

exit. He stopped and then intentionally drove forward despite the officers standing

in front of his car with Brown aiming a rifle at him. Even if Kohler was driving

slowly, the officers could not discount that at any moment Kohler could accelerate.

A reasonable officer would interpret Kohler’s actions as a threat of serious bodily

harm. For the same reasons, whether Kohler had homicidal intent or whether

Brown panicked is immaterial. I find that any contested facts do not constitute

genuine disputes of material fact. Even accepting the plaintiff’s version of the

events, Hensley ex. rel. N.C., 876 F.3d at 579, the second factor favors the

defendant.

I must view the facts from the defendant’s perspective at the time of the

incident to determine objective reasonableness, Rowland v. Perry, 41 F.3d 167,

173 (4th Cir. 1994), based on whether the defendant had probable cause to believe

Kohler posed a serious threat of harm when he used deadly force, Stanton v.

Elliott, 25 F.4th 227, 233 (4th Cir. 2022). The fact that a suspect merely fled from

law enforcement is not enough to justify using deadly force. Tennessee v. Garner,

471 U.S. 1, 11 (1985). Furthermore, a suspect’s possession of a weapon does not

justify using deadly force. Cooper v. Sheehan, 735 F.3d 153, 159 (4th Cir. 2013).

A police officer may only use deadly force when the officer reasonably determines

that the fleeing suspect is threatening the officer or another person with a weapon.

Id.

A hypothetically reasonable officer in Brown’s situation would have

probable cause to believe that Kohler posed a threat of serious physical harm to

himself and to the other officers when he used deadly force. That officer could

reasonably conclude that Kohler was threatening them with a weapon — his car.

After backing out of the parking space and then turning the automobile to face the

exit, Kohler saw the two officers positioned in front him. Brown’s weapon was

drawn. The officers shouted for Kohler to stop while banging on his car window.

Nevertheless, Kohler drove forward. At that point, an officer would have probable

cause to conclude that Kohler and his car posed a threat of serious bodily injury to

the officers. Waterman, 393 F.3d at 478–479 (“While reasonable officers would

have recognized the possibility that Waterman intended only to accelerate by them

rather than at them, they also — in the instant they had to decide — could have

interpreted the acceleration in the face of their show of force as the initiation of a

second attempt by Waterman to avoid capture by using his vehicle as a weapon

against law enforcement personnel.”); Pace v. Capobianco, 283 F.3d 1275, 1282

(11th Cir. 2002) (“By the time of the shooting, Davis had used the automobile in a

manner to give reasonable policemen probable cause to believe that it had become

a deadly weapon with which Davis was armed.”)

The undisputed video evidence and Brown’s Declaration establishes that the

defendant reasonably feared for the safety of those in the immediate vicinity. The

motel was open and occupied. Cars were in the parking lot. Behind Brown and

Carty, another vehicle had driven onto the parking lot. A fleeing Kohler also

posed an imminent threat of serious physical harm to those in and near the motel

parking lot. See Wilson ex rel. T.W. v. City of Bastrop, 26 F.4th 709, 714 (5th Cir.

2022) (“When Johnson ran, armed and disobeying Green’s commands to drop the

gun despite the presence of onlookers, Green’s use of deadly force became

justified.”).

I must also consider the fact that Brown had to make an immediate decision

about the escalating events and potential for danger. Waterman, 393 F.3d at 478.

An officer may reasonably expect the worst in the split-second that a

noncomplying suspect acts. Hensley ex rel. N.C., 876 F.3d at 585; Elliott v.

Leavitt, 99 F.3d, 640, 641 (4th Cir. 1996) (noting that the Constitution does not

require police officers to gamble on the ultimate danger). Based on the

circumstances here, I reject the plaintiff’s argument that factual disputes regarding

the speed of the car, Kohler’s intent, or whether Brown panicked are material and

genuine. I find that Brown had probable cause to believe Kohler posed a serious

threat of harm to him, Carty, and to motel guests and that deadly force was

objectively reasonable given the totality of the circumstances.

In any event, Brown is entitled to qualified immunity because he did not

violate a clearly established constitutional right. A right that is well-defined and so

sufficiently explained through existing precedent that a reasonable officer would

understand that their conduct violates a clearly established right. Mullenix v. Luna

ex rel. Leija, 577 U.S. 7, 11 (2015) (per curiam); Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011). The question here is whether precedent clearly established in March of

2021 that the Fourth Amendment prohibited police officers from using deadly

force against someone advancing toward the officers in a car after they had ordered

the driver to stop. I find that it did not.

The Fourth Circuit has explained that if an armed suspect fails to stop or to

follow other commands, continued movement will raise “objectively grave and

serious suspicions.” Hensley ex rel. N.C., 876 F.3d at 585. In Waterman, the

Fourth Circuit recognized that the justification for force may change within

seconds. The weapon at issue in Waterman was the suspect’s car. 393 F.3d at

480. The officers were entitled to qualified immunity for using deadly force as the

car accelerated toward them. Id. However, once the vehicle had passed the

officers, the threat to the officers’ safety was eliminated. Thus, continuing to fire

shots was constitutionally unreasonable. Id. at 481. Despite that conclusion, the

court held that the officers were entitled to qualified immunity because the

unconstitutionality of their actions was not clearly established. Id. 481–482.

Accordingly, the defendant is entitled to qualified immunity.

Kohler also asserts pendent state claims for wrongful death under Va. Code

Ann. § 8.01-50 (Wrongful Death Act), and a claim for battery based on excessive

force. Parallel state law claims are “subsumed within” federal excessive force

claims. Rowland, 41 F.3d at 174. Under the Wrongful Death Act, a plaintiff must

establish that the decedent’s death was caused by a wrongful act, neglect, or

default. Va. Code Ann. § 8.01-50(A). A wrongful act lacks justification or

excuse. McLenagan v. Karnes, 27 F.3d 1002, 1009 (4th Cir. 1994). In Virginia, a

battery occurs when there is an unwanted touching, meaning there is no consent,

excuse, or justification. Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009) (citing

Koffman v. Garnett, 574 S.E.2d 258, 261 (Va. 2003)).

In the face of legal justification, these claims fail. Unus, 565 F.3d at 117.

As explained above, the facts viewed in a light most favorable to Kohler

demonstrate that Brown’s use of deadly force was justified. Officers are allowed

to use reasonable force to perform their duties when the officer’s conduct is

objectively reasonable. Assessing reasonableness requires considering that officers

must make quick decisions. Id. Using deadly force is objectively reasonable when

a motorist accelerates in an officer’s direction. Waterman, 393 F.3d at 478; Bethea

v. Howser, 447 F. Supp. 3d 497, 513 (E.D. Va. 2020) (finding objectively

reasonable for officer to shoot at motorist accelerating in officer’s direction); Colas

v. Tyree, 882 S.E.2d 625, 633 (Va. 2023) (holding deadly force justified if officer

reasonably fears death or serious bodily harm).

There were approximately fifteen feet between Kohler’s car and the two

officers. Brown had little time to ponder the situation. Even if Brown could have

jumped aside, he could not be sure that Kohler would not strike him. Bethea, 447

F. Supp. 3d at 513 (officer not standing directly in the path of accelerating vehicle

was close enough that “one turn of the wheel could have resulted in serious

injury”). I find that Brown’s actions were objectively reasonable, and thus, legally

justified. His actions do not amount to an actionable tort. Given that finding, it is

unnecessary to determine if Virginia’s good faith immunity doctrine for police

action committed based on a mistake of law, but in good faith, applies. Brown is

entitled to prevail as to the Wrongful Death Act and battery claim and I will grant

summary judgment in favor of the defendant.

III.

For the reasons stated, it is ORDERED that the Motion for Summary

Judgment, ECF Nos. 42 and 44, is GRANTED. A separate judgment will be

entered herewith.

ENTER: September 22, 2023

/s/ JAMES P. JONES

Senior United States District Judge

APPENDIX

Parking Lot Video (CCTV2)

Time Description

0:12:02 Kohler drove a red mustang into view of the camera. He parked in

the front row of parking spaces closest to the motel, facing the motel

doors. He turned off his car, but he did not get out. The camera angle

shows the back of the car.

0:18:15 The glow of Kohler’s cellular phone shone through the rear

windshield.

0:18:36 Two officers, Carty and Brown, arrived at the motel. They shined

their flashlights on the motel wall.

0:18:42 The police noticed Kohler’s car and shined their flashlights on it.

Kohler turned on his car, activating the vehicle’s car lights.

0:18:45 Kohler started backing out of the parking space. Carty held up his

hand, directing Kohler to stop. Kohler complied.

0:18:46 Carty walked toward the driver’s side of Kohler’s car while shining

his flashlight on Kohler. Brown followed him. Carty spoke to

Kohler.

0:18:55 Two more officers, Stine and Sizemore, joined them.

0:19:08 Carty continued speaking to Kohler who was still seated in the car.

0:19:12 Brown, holding his rifle, moved to the front of the car, and then

walked to the passenger’s side.

0:19:15 Stine, while holding his rifle, joined Carty on the driver’s side. He

stood near the front of the car, near the headlight.

0:19:28 Sizemore, stood behind Stine. Brown moved to stand beside the

passenger side door.

0:19:33 Kohler handed Carty his driver’s license and then Carty walked to the

rear of Kohler’s car, standing off to the side of it, but not directly

behind it. Brown shined his flashlight into the car, from back to front.

0:19:46 While standing at the driver’s side window, Stine shined his flashlight

into the vehicle.

0:19:48 Carty studied the driver’s license.

0:19:51 Stine stood beside the driver’s side door pointing his rifle toward the

ground. Brown held his rifle pointed toward the ground on the

passenger’s side.

0:19:57 Brown raised his rifle and pointed it at Kohler’s car.

0:20:01 Stine pointed with his finger at the car, but he did not raise his rifle.

Brown continued to point his rifle at the car. Carty was still standing

near the rear of the car.

0:20:03 Brown lowered his rifle and paced near the front of the car on the

passenger’s side.

0:20:10 Stine pointed at Kohler again.

0:20:11 Carty walked back to Kohler. Stine continued to hold his rifle in the

same position, pointed at the ground.

0:20:19 Carty returned Kohler’s driver’s license to him and then shined his

flashlight into the car again. At this point, there were three officers

standing on the driver’s side.

0:20:20 Stine raised his rifle partially. Brown continued to point his rifle

toward the ground.

0:20:23 Stine lowered his weapon. Carty continued to speak with Kohler.

Brown’s rifle was still pointed to the ground.

0:20:25 Brown raised the gun again and pointed it at Kohler.

0:20:26 Brown looked over his shoulder. Kohler started backing up his car.

0:20:27 Carty jogged backward as Kohler drove the car in reverse. Brown

trained his rifle on Kohler. Officer Stine used his gun to repeatedly

bang on the driver’s side window.

0:20:29 Carty ran to the front of the car as Kohler continued to back up.

0:20:30 As the car turned toward the exit, Brown walked so that he stayed in

front of the car on the driver’s side.

0:20:33 Stine continued to beat on the driver’s side window. Carty moved to

the front of the car on the passenger’s side. The two officers blocked

Kohler’s path to the exit. Brown was pointing his weapon at Kohler.

The car stopped.

0:20:34 Kohler drove forward, in the direction of the two officers.

0:20:35 Brown fired at least two shots at Kohler and then his car veered to the

right.

0:20:37 The car crashed into a parked van, and the car’s airbags deployed.

Officers approached Kohler’s driver’s side door and determined he

was dead.