The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MASON H. BRUMBACH, )
ADMINISTRATOR OF THE ESTATE OF ) CASE NO. 4:24-CV-285
FRED HENRY WILD, DEC., )
)
Plaintiff, ) JUDGE BENITA Y. PEARSON
)
v. )
) MEMORANDUM OF OPINION AND
OFFICER SHANE SMITH, et al., ) ORDER
) [Resolving ECF Nos. 69, 70, 73, and 74]
Defendants. )
)
Pending before the Court are four Motions for Summary Judgment submitted by
Defendants Jason Bonar (ECF No. 69), Dennis Garito (ECF No. 70), Jarett Pishotti and Shane
Smith (ECF No. 73), and Cody Dean (ECF No. 74). Plaintiff opposes each motion in a single
opposition brief. ECF No. 76. Defendants independently replied in support of their respective
motions. Dean Reply Br., ECF No. 79; Smith and Pishotti Reply Br., ECF No. 80; Bonar Reply
Br., ECF No. 81; Garito Reply Br., ECF No. 82. Within the reply briefs, Defendants each move
to strike Daniel Lane’s affidavit included in Plaintiff’s opposition brief. The Court construes
Plaintiff’s sur-reply (ECF No. 83) as an opposition to the motions to strike. See ECF No. 84.
Having reviewed the parties’ briefs, applicable law, and the record, Defendants Bonar
(ECF No. 69), Garito(ECF No. 70), and Dean’s (ECF No. 74) motions for summary judgment
are granted for the reasons set forth herein. Defendant Pishotti and Smith’s joint motion for
summary judgment (ECF No. 73) is granted in part. That motion is granted as to Defendant
Pishotti and denied as to Defendant Smith. Defendants’ arguments to strike the affidavit of
Daniel Lane are well-taken. Mr. Lane’s affidavit and all attachments thereto are stricken.
I. FACTUAL BACKGROUND1
This case concerns the death of Fred Henry Wild, III, who was shot and killed by police
during, what his friends and family identified as, a mental health crisis. Plaintiff, Mason H.
Brumbach, Wild’s son, asserts the following claims against each Defendant: (1) a civil rights
claim under 42 U.S.C. § 1983; and (2) a wrongful death claim under Ohio Rev. Code § 2125.01.
ECF No. 1-1. The pertinent events leading to Wild’s death are as follows.
A. Stipulated Facts2
The parties stipulate to the following facts:
1. The shooting of Fred Wild occurred on March 21, 2023.
2. Mr. Wild was reported on the premises of the property located at 1433 State Route 7 NE,
Brookfield, Trumbull County, Ohio.
3. At the time of the shooting, Mr. Wild had multiple warrants out for his arrest and was
reported to be in a small hunting cabin.
4. Brian Adkins, the owner of the cabin and Mr. Wild’s longtime friend, gave police
consent to enter the property to apprehend Mr. Wild.
5. On March 18, 2023, Liberty Township Police Department was involved in a pursuit with
Mr. Wild.
6. During the March 18, 2023 pursuit, officers lost sight of Mr. Wild and the pursuit ended.
7. On March 20, 2023, Lordstown Police were in pursuit with Mr. Wild. The pursuit
covered approximately 38 miles.
8. Lordstown Police lost sight of Mr. Wild as he drove alongside a set of railroad tracks.
1 As it must on summary judgment, the Court construes these facts in the light most
favorable to Plaintiff. See Scott v. Harris, 550 U.S. 372, 378 (2007).
2 See ECF No. 66.
9. Mr. Wild fled on foot and was not immediately located.
10. On March 20, 2023, at approximately 9:20 p.m., Brookfield Township Police Department
received a call reporting a motor vehicle theft.
11. The owner of the vehicle, Mr. Shafer, reported the vehicle theft and informed the officer
that the vehicle was stolen between the hours of 5:30 p.m. and 9:00 p.m.
12. The officer received a detailed description of the vehicle and learned that it was a pick-up
truck with a yellow Myers snowplow attached to the front.
13. Mr. Wild went to Mr. Adkin’s property and went to one of the cabins on Mr. Adkin’s
property.
14. Mr. Adkins made verbal contact with Mr. Wild and told him he was out of control and
needed help.
15. Mr. Wild told Mr. Adkins that he did not want to go to jail.
16. Mr. Adkins told Mr. Wild that he needed to go to the hospital.
17. Mr. Adkins told Mr. Wild that the police knew where he was or would find out soon.
18. Mr. Adkins told Mr. Wild “they’re going to shoot you”[,] referring to the police finding
Mr. Wild.
19. A coalition of officers from various jurisdictions (collectively, “Law Enforcement
Coalition” or “LEC”) was put together to approach the hunting cabin where Mr. Wild
was hiding.
20. Ten officers met and discussed a plan to arrest Mr. Wild.
21. Nine officers went down a dirt road that led to the cabin where Mr. Wild was reportedly
hiding.
22. One officer remained at the driver’s entrance on State Route 7.
23. As the officers approached the cabin where Mr. Wild was reported to be staying, music
was heard.
24. The officers made visual contact and confirmed that Mr. Wild was in the cabin.
25. The pick-up truck Mr. Wild had stolen was parked next to the cabin.
26. As the officers approached, Mr. Wild became aware of their presence.
27. Mr. Wild jumped out of the cabin window, directly into the stolen pick-up truck.
28. Mr. Wild was in the driver’s seat of the pick-up truck, and officers including Deputy
Garito, attempted to break the passenger side window of the pick-up.
29. Additional officers approached the cabin from the wooded area.
B. Wild’s Pre-Shooting Behavior.
On or about March 17, 2023, Plaintiff contacted police about Wild’s erratic behavior.
Brumbach dep. Tr., ECF No. 75-1 at PageID #: 1733, 18:5–19:3. He testified that he wanted
Wild to stop running, so he notified police of Wild’s whereabouts in connection with a Lake
County arrest warrant for felony vandalism and an OVI. ECF No. 75-1 at PageID #: 1735,
27:12–24; Moran Aff. Ex. A-13, ECF No. 69-1 at PageID # 711. The next day, the Liberty
Township Police Department received an emergency call from Wild’s daughter stating that he
was at her residence and that “she was frightened by [Wild’s] comments and actions.”
Brookfield OIS Report, ECF No. 70-2 at PageID ##: 1539–40. When officers attempted to
apprehend him, Wild led them on a high-speed chase and evaded capture. ECF No. 66 at PageID
#: 531, ⁋⁋ 5–6. Officers filed charges against Wild through Girard Municipal Court for failure to
comply with an order or signal of a police officer. ECF No. 70-2 at PageID #: 1540.
On March 20, 2023, Wild’s former employer, Ian Proverbs, contacted the Lordstown
Police Department, reported that Wild was unlawfully on his property, and asked that he be
removed. Mr. Proverbs also told Lordstown police about Wild’s police chase two days earlier.
Moran Aff. Ex. A-13, ECF No. 69-1 at PageID #: 1335. As officers approached Wild’s vehicle,
he fled, leading police on a second high-speed chase for approximately 38 miles and reaching
speeds of 110 miles per hour. ECF No. 66 at PageID #: 532, ⁋ 7. Police lost sight of Wild along
some railroad tracks, where he abandoned his vehicle and continued fleeing on foot. ECF No. 66
at PageID #: 532, ⁋⁋ 8–9. Officers from the Trumbull County Sheriff’s Office, the Ohio State
Highway Patrol, the Vienna Township Police Department, and Brookfield Township Police
Departments unsuccessfully attempted to find Wild. Moran Aff. Ex. A-13, ECF No. 69-1 at
PageID ##: 1338–39.
After evading police and abandoning his vehicle, Wild stole a blue Chevrolet pickup
truck with a yellow snowplow attached to the front bumper. ECF No. 66 at PageID #: 532, ⁋ 12.
The vehicle’s owner reported the theft to the Brookfield Township Police department at
approximately 9:20 p.m. on March 20, 2023. ECF No. 66 at PageID #: 532, ⁋⁋ 10–11. Later
that evening, at approximately 11:52 p.m., Brian Adkins, Wild’s longtime friend, notified
Defendant Cody Dean (a Brookfield Police sergeant) that Wild was hiding in a cabin on Adkins’
property at 1433 State Route 7 NE, Brookfield, Ohio 44403. Moran Aff. Ex. A-5 (Dean BWC
1), ECF No. 69-1 at PageID #: 684; Faulkner Expert Report, ECF No. 69-5 at PageID #: 1427.3
Mr. Adkins told Sgt. Dean that there were crossbows and ammunition in the cabin, but that Wild
did not have any guns with him. Moran Aff. Ex. A-5 (Dean BWC 1), ECF No. 69-1 at PageID
#: 684 [timestamp: 23:55:53–59].4 Conversely, Defendant Dennis Garito, Jr. (a Trumbull
County Sheriff’s Deputy) averred that when he began his shift, another officer reported that Wild
might be in possession of a “muzzle loader.”5 Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #:
3 Officers Smith and Pishotti noticed Samuel Faulkner as an expert defense witness.
ECF No. 50. Mr. Faulkner’s expert report was also referenced and submitted by
Defendants Bonar (ECF No. 69-5) and Garito (ECF No. 70-6). For ease of reference, the
Court will refer only to ECF No. 69-5 when discussing Mr. Faulkner’s report.
4 The Court notes that the timestamps for the body camera recording devices were
not set to a consistent time, with some recordings being off be a few minutes and even an
hour. Despite the inconsistent timestamps, the parties do not dispute that the videos depict
the same events and, therefore, the Court shall reference the timestamps shown on each
respective video.
5 Officer Smith explained that a “muzzle loader” is a firearm that is loaded by
pushing a projectile, followed by gun powder, down the gun’s muzzle. Such firearms are
typically used for hunting. Smith dep. Tr., ECF No. 67-1 at PageID #: 543, 5:5–14.
744; Smith dep. Tr., ECF No. 67-1 at PageID #: 542, 4:8–25. No firearms, including a muzzle
loader, were found in Wild’s possession after the shooting.
C. Law Enforcement Coalition’s Attempts to Arrest Wild.
After confirming that Wild was hiding in Mr. Adkin’s hunting cabin, Sgt. Dean requested
assistance from other law enforcement agencies to apprehend him. ECF No. 66 at PageID #:
532, ⁋⁋ 19–20. The law enforcement coalition (“LEC”) was comprised of: the Ohio State
Highway Patrol (Sgt. Jason Bonar, Lt. Timothy Grimm, Trooper Scott Boyle, and Trooper Kevin
Brown); the Vienna Township Police Department (Officer Jarett Pishotti and Officer Shane
Smith); the Trumbull County Sheriff’s Office (Deputy Dennis Garito); the Brookfield Township
Police Department (Officer Joshua Ellwood-Bellas and Sgt. Cody Dean); and the Lordstown
Police Department (Officer Ted Drewek). ECF No. 66 at PageID #: 532, ⁋ 20; Bonar Aff., ECF
No. 69-2 at PageID #: 1412, ⁋ 12. The LEC planned for Trooper Brown to remain near the street
while the other officers approached on foot and surrounded the cabin. Once the cabin was
surrounded, the LEC planned for Trooper Brown to drive towards the cabin and use his PA
system to order Wild to surrender. Bonar dep. Tr., ECF No. 64-1 at PageID ##: 386–87, 5:7–
6:9; ECF No. 69-5 at PageID #: 1427. Before approaching the cabin, Sgt. Dean briefed the LEC
on Wild’s two high-speed chases and two outstanding arrest warrants. Faulkner Expert Report,
ECF No. 69-5 at PageID ##: 1431, 1438; Smith Aff., ECF No. 73-1 at PageID #: 1694, ⁋⁋ 5–6;
Pishotti Aff., ECF No. 73-2 at PageID #: 1698, ⁋⁋ 5–6.
D. The Shooting and Subsequent Investigation.
The LEC approached the cabin along a long driveway and positioned themselves in
various vantage points around the structure. Bonar dep. Ex. 1, ECF No. 64-1 at PageID #: 431;
Faulkner Expert Report, ECF No. 69-5 at PageID ##: 1434–35, 1439; Smith Aff., ECF No. 73-1
at PageID #: 1694, ⁋ 8; Pishotti Aff., ECF No. 73-2 at PageID #: 1698, ⁋ 8. The stolen pickup
truck was parked along the south side of the cabin, blocking the cabin doorway but leaving the
driver’s side of the pickup accessible from a cabin window. Bonar dep. Ex. 1, ECF No. 64-1 at
PageID ##: 430–31; Faulkner Expert Report, ECF No. 69-5 at PageID #: 1427. Defendants
Dean, Pishotti, and Garito approached from the south, facing the pickup’s passenger-side door.
Bonar dep. Ex. 1, ECF No. 64-1 at PageID #: 431; Pishotti dep. Tr., ECF No. 67-2 at PageID #:
596, 4:5–9. Officer Drewek was behind the truck while Defendants Bonar and Smith
approached the cabin from the north with Officer Ellwood-Bellas, Lt. Grimm, and Trooper
Boyle. Smith dep. Tr., ECF No. 67-1 at PageID #: 542, 4:3–7.
As they drew closer, Wild became aware of the officers’ presence, prompting them to
turn on their lights and issue loud commands for Wild to surrender with his hands up. Pishotti
dep. Ex. 2, ECF No. 67-2 at PageID #: 619; Boyle Aff., ECF No. 69-4 at PageID #: 1422, ⁋ 16.
Rather than comply, Wild jumped out of the cabin window directly into the truck’s driver’s seat
and started the vehicle. ECF No. 66 at PageID #: 533, ⁋ 27; Moran Aff. Ex. A-7, ECF No. 69-1
at PageID #: 700. While officers continued shouting commands for Wild to show his hands,
loud bangs can be heard on the various body camera recordings as Deputy Garito and Officer
Pishotti unsuccessfully attempted to break the passenger-side window with their rifles. ECF No.
66 at PageID #: 533, ⁋ 28; Pishotti dep. Tr., ECF No. 67-2 at PageID #: 597, 5:15–20. Sgt.
Bonar repositioned himself atop a pile of bricks about 20 feet in front of the truck.6 Bonar Aff.,
ECF No. 69-2 at PageID #: 1413, ⁋ 21; see Moran Aff. Ex. A-3 (Grimm BWC), ECF No. 69-1 at
6 In his written statement to investigators, Sgt. Bonar said that he was standing on
a “stack of pallets”. ECF No. 64-1 at PageID #: 433. Regardless, the video evidence shows
Bonar was standing atop debris close to the snowplow attached to the truck. See, e.g.,
Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 756.
PageID #: 678. Officer Smith was behind a tree to Sgt. Bonar’s rear left. Officer Ellwood-
Bellas and Lt. Grimm were directly behind Sgt. Bonar. Bonar dep. Tr., ECF No. 64-1 at PageID
##: 399–400, 18:23–19:3. Officer Boyle stood against the cabin near the truck’s front bumper.
Boyle Aff., ECF No. 69-4 at PageID #: 1422–23, ⁋⁋ 20, 24.
Wild revved the pickup’s engine before accelerating with a “full gas pedal” causing the
back tires to send dirt and gravel flying, drove over a small tree, and almost hit Sgt. Bonar and
Trooper Boyle before veering away at the last second. Moran Aff. Ex. A-7, ECF No. 69-1 at
PageID #: 730; Boyle Aff., ECF No. 69-4 at PageID #: 1423, ⁋⁋ 24–26. Officers Smith,
Ellwood-Bellas, and Lt. Grimm were positioned behind Sgt. Bonar, prompting them to shout,
“look out, look out.” Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 815. Defendants Bonar,
Pishotti, Garito, Dean, and Smith discharged their weapons, collectively firing 13 shots (Moran
Aff. Ex. A-7, ECF No. 69-1 at PageID #: 816) and striking Wild five times before the truck came
to a stop. See Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 717. Officers approached the
pickup and confirmed that Wild was dead.
The Ohio Attorney General’s Bureau of Criminal Investigation (“BCI”), led by Special
Agent Charles Moran, investigated the shooting. Moran Aff. Ex. A-7, ECF No. 69-1 at PageID
##: 689–817. BCI interviewed all the officers involved, Mr. Adkins, and Wild’s friends and
family, including Plaintiff. It gathered records, documents, photographs, items, and conducted
several tests. Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 816. On completion, the report
was turned over to the Trumbull County Prosecutor, who determined that the shooting was
justified and declined to bring charges against any of the officers involved.
II. LEGAL STANDARD
“Summary judgment is appropriate when ‘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.’” Scola
v. Publix Supermarkets, Inc., 557 F. App’x 458, 462 (6th Cir. 2014) (quoting Fed. R. Civ. P.
56(a)). The fact under dispute must be “material,” and the dispute must be “genuine.” A fact is
“material” if its resolution will affect the outcome of the lawsuit. Scott v. Harris, 550 U.S. 372,
380 (2007). In determining whether a factual issue is “genuine,” the Court assesses whether the
evidence is such that a reasonable jury could find that the non-moving party is entitled to a
verdict. Id. (“[Summary judgment] will not lie . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party”).
The moving party is not required to file affidavits or similar materials negating a claim on
which its opponent bears the burden of proof, so long as the movant relies on the absence of an
essential element in the pleadings, depositions, answers to interrogatories, and admissions on
file. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The trial court is not required to
search the entire record to establish that a genuine issue of material fact exists.” Malee v.
Anthony & Frank Ditomaso, Inc., No. 1:16CV490, 2018 WL 1805402, at *2 (N.D. Ohio Apr. 16,
2018) (citing Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008)) (abrogated on other
grounds). “‘[I]f a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c),’ the court may determine that fact is
undisputed.” Malee, 2018 WL 1805402, at *2 (quoting Fed. R. Civ. P. 56(e)(2)).
To survive summary judgment, the non-moving party “must ‘do more than simply show
that there is some metaphysical doubt as to the material facts.’” Baker v. City of Trenton, 936
F.3d 523, 529 (6th Cir. 2019) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). Once the movant makes a properly supported motion, the burden
shifts to the non-moving party to demonstrate the existence of a genuine dispute. An opposing
party may not simply rely on its pleadings; rather, it must “produce evidence that results in a
conflict of material fact to be resolved” by a factfinder. KSA Enterprises, Inc. v. Branch Banking
& Tr. Co., 761 F. App’x 456, 464 (6th Cir. 2019) (quoting Cox v. Ky. Dep’t of Transp., 53 F.3d
146, 150 (6th Cir. 1995)). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 613 (6th
Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In analyzing a
motion for summary judgment, the Court “must view the evidence in the light most favorable to
the nonmoving party.” Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018)
(citing Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017)).
III. DISCUSSION
Defendants move for summary judgment, claiming entitlement to qualified immunity
because the shooting was reasonable under the Fourth Amendment. Deputy Garito and Officers
Smith and Pishotti also assert that they are entitled to political subdivision immunity under Ohio
Rev. Code Ch. 2744. Sgt. Dean argues that Plaintiff’s claims fail as a matter of law because he
cannot identify which officer was responsible for the fatal shot. Plaintiff opposes each motion in
a single, five-page brief, in which he argues that there is a genuine issue of material fact as to
when Defendants fired their weapons. ECF No. 76.
A. Danny Lane’s Affidavit is Stricken.
To support his opposition to Defendants’ motions for summary judgment, Plaintiff
included an affidavit and investigation report from Danny Lane, a purported projectionist who
evaluated each officer’s body-worn camera videos frame by frame. ECF No. 76 at PageID #:
1783. Defendants moved to strike the affidavit, arguing that Plaintiff surreptitiously included an
expert witness affidavit to support his summary judgment opposition. ECF No. 79; ECF No. 80;
ECF No. 81; ECF No. 82. According to Defendants, Plaintiff failed to timely identify his expert
witness and cannot now rely on statements from an undisclosed expert or witness to support his
arguments. ECF No. 79 at PageID ##: 1898–99; ECF No. 80 at PageID #: 1904; ECF No. 81 at
PageID #: 1913–15; ECF NO. 82 at PageID #: 1922. Plaintiff retorts that Mr. Lane is neither an
expert, nor a witness, and that he merely provided a frame-by-frame analysis of the body camera
videos. ECF No. 83. Plaintiff’s argument is not well taken.
Plaintiff previously moved for leave to identify his expert witness and submit his expert
report after the expert discovery cutoff expired. ECF No. 54. In that motion, Plaintiff’s
proposed expert, Patrick Michael Mays, indicated that he had worked with Mr. Lane to review
and analyze the body camera videos to determine when Defendants fired their weapons. ECF
No. 54. The Court denied Plaintiff’s motion and excluded his expert witness’ testimony and
report because: (1) Plaintiff failed to provide good cause for his failure to comply with the Case
Management Conference Order (ECF No. 30); (2) the motion was filed 28 days after the cutoff
for identifying expert witnesses and providing expert reports to opposing counsel expired; and
(3) Defendants would be prejudiced by the untimely insertion of expert evidence. ECF No. 56 at
PageID #: 293.
Now Plaintiff attempts to rely on Mr. Lane’s review and findings by recharacterizing him
as merely a “projectionist,” claiming that he provided services like Defendants’ projectionist,
Charles Moran. ECF No. 76 at PageID #: 1779 n.3. Plaintiff misapprehends the role of Charles
Moran. He was not “Defendants’ Projectionist” but the lead BCI investigator and a witness of
whom Plaintiff was aware and could have deposed before the close of discovery. See, e.g.,
Moran Aff., ECF No. 69-1. The same cannot be said for Mr. Lane, whom Plaintiff failed to
timely identify or make available to Defendants for deposition concerning his review and
findings. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”). The Court ordered that Plaintiff’s untimely expert
testimony and report be excluded. ECF No. 56; see Pride v. BIC Corp., 218 F.3d 566, 578–79
(6th Cir. 2000) (recognizing that district courts have broad discretion to exclude expert-witness
testimony, including affidavits, that are untimely disclosed). Because the Court has excluded
Mr. Lane’s testimony and report, and because Defendants were not provided an opportunity to
confront Mr. Lane regarding the same, his affidavit and all attachments thereto are stricken from
the record.
B. Excessive Force and Qualified Immunity Legal Framework
To succeed on his excessive force claims under 42 U.S.C. § 1983, Plaintiff must
demonstrate: (1) Wild’s rights secured by the Constitution or federal law were violated; (2) by a
person or persons acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Excessive force claims—as in this case—are assessed under the Fourth Amendment, which
protects against unreasonable search and seizures, including the unreasonable use of deadly force
against a fleeing suspect. See Barnes v. Felix, 605 U.S. 73, 76 (2025) (citing Graham v. Connor,
490 U.S. 386, 397 (1989)). “A police officer’s use of deadly force violates the Fourth
Amendment when it is not ‘objectively reasonable.’” Id. “Whe[n] the officer has probable cause
to believe that the suspect poses a threat of serious harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner,
471 U.S. 1, 11 (1985).
Once a constitutional violation has been established, a defendant may raise the qualified
immunity defense, which is available to government officials against claims that “arise from the
performance of their discretionary functions.” Meeks v. Larsen, 999 F. Supp. 2d 968, 977 (E.D.
Mich. 2014), aff’d, 611 F. App’x 277 (6th Cir. 2015). When the qualified immunity defense is
raised, it becomes the plaintiff’s burden to show the defendant is not entitled to immunity.
Mosier v. Evans, 90 F.4th 541, 546 (6th Cir. 2024) (citing Burgess v. Fischer, 735 F.3d 462, 472
(6th Cir. 2013)). When faced with summary judgment, a plaintiff must show that, based on the
record, a reasonable jury could find: (1) the defendants violated a constitutional or statutory
right; and (2) that right was clearly established at the time of the alleged violation. Id.; see
Francis v. Huff, No. 22-5282, 2022 WL 7973109, at *2 (6th Cir. Oct. 14, 2022) (citing
Cunningham v. Shelby Cty., 994 F.3d 761, 764 (6th Cir. 2021)) (same). The Court may exercise
its discretion in deciding which prong to address first. Pearson v. Callahan, 555 U.S. 223, 236
(2009). If a plaintiff fails to satisfy one prong, the other need not be addressed. Mosier, 90 F.4th
at 546.
Recognizing that police often must “make split-second judgments” in dangerous
situations, both the Supreme Court and the Sixth Circuit admonish district courts to judge the
“reasonableness of the moment” from the perspective of a reasonable officer at the scene, rather
than with “the 20/20 vision of hindsight.” Williams v. City of Canton, Ohio, 168 F.4th 933, 940
(6th Cir. 2026) (citing Plumhoff v. Rickard, 572 U.S. 765, 775 (2014)). Thus, “[e]ven if an
officer’s assessment of a situation is ultimately wrong, there is no Fourth Amendment violation
if ‘a dangerous situation evolved quickly to a safe one before the police officer had a chance to
realize the change.’” Francis, 2022 WL 7973109, at *2 (quoting Cass v. City of Dayton, 770
F.3d 368, 375 (6th Cir. 2014)); see Pearson, 555 U.S. at 231. That a situation evolves quickly
“does not, by itself, permit [officers] to use deadly force.” Kirby v. Duva, 530 F.3d 475, 483 (6th
Cir. 2008) (quoting Smith v. Cupp, 430 F.3d 766, 775 (6th Cir. 2005)) (brackets in original).
The Supreme Court instructs courts to balance three non-exhaustive factors when
assessing the reasonableness of an officer’s use of force: (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 the suspect is actively resisting arrest or attempting to flee. Francis, 2022 WL 7973109,
at *2 (citing Graham, 490 U.S. at 396). The second factor is the most critical. Hicks v. Scott,
958 F.3d 421, 435 (6th Cir. 2020) (citing Mullins v. Cyranek, 805 F.3d 760, 76 (6th Cir. 2015)).
Urging district courts to assess reasonableness under the totality of the circumstances, the
Sixth Circuit articulates additional factors, including: (1) why the officers were called to the
scene; (2) whether the officers knew or reasonably believed the individual was armed; (3)
whether the individual verbally or physically threatened the officers or disobeyed commands; (4)
the distance between the officer and the individual; (5) the duration of the encounter; (6) whether
the officers were aware of any ongoing mental or physical health conditions potentially affecting
the individual’s response to officers; and (7) whether less forceful tactics could have been
employed to de-escalate the situation. Palma v. Johns, 27 F.4th 419, 432 (6th Cir. 2022)
(internal citations omitted).
The third Graham factor—whether the suspect was actively resisting arrest or attempting
to flee—weighs in Defendants’ favor. It is undisputed that Wild was not complying with the
officers’ commands and was attempting to flee the scene in a stolen vehicle. ECF No. 66 at
PageID #: 533, ⁋ 27. The third Palma factor—whether the individual was disobeying
commands—weighs in Defendants’ favor for the same reason. Similarly, the first Graham
factor—the severity of the crime at issue—weighs in Defendants’ favor. Wild had an
outstanding arrest warrant for felony vandalism (ECF No. 66 at PageID #: 531, ⁋ 3; Moran Aff.
Ex. A-7, ECF No. 69-1 at PageID #: 711), and had led police on two high-speed chases in the
three days preceding, with one having occurred just hours before the shooting. ECF No. 66 at
PageID ##: 531–32, ⁋⁋ 5–8. The dispositive factor in this case is the second Graham factor:
whether Wild posed an immediate threat to the safety of the officers or others. See Garner, 471
U.S. at 11. As discussed below, this factor, along with several Palma factors, weigh in favor of
most of the defendants.
C. Deadly Force Against a Fleeing Vehicle
When responding to a fleeing vehicle, officers may employ deadly force if they have
“‘reason to believe that the fleeing car present[s] an imminent danger’ to ‘officers and members
of the public.’” Francis, 2022 WL 7973109, at *3 (citing Cupp, 430 F.3d at 775) (cleaned up).
Deadly force against a driver is justified when the driver “objectively appears ready to drive into
an officer or bystander with [the driver’s] car.” Cass, 770 F.3d at 375 (quoting Hermiz v. City of
Southfield, 484 F. App’x 13, 16 (6th Cir. 2012)).
Conversely, deadly force is unreasonable when “the officer was to the side of the moving
car, or the car had already passed him—taking the officer out of harm’s way—when the officer
shot the driver.” Gordon v. Bierenga, 20 F.4th 1077, 1083 (6th Cir. 2021) (quoting Latits v.
Phillips, 878 F.3d 541, 549 (6th Cir. 2017) (collecting cases)); see Kirby, 530 F.3d at 482–83
(holding that officers were not entitled to qualified immunity because they had ample
opportunity to realize before shooting a fleeing driver that no one was in his immediate path and
he posed no imminent threat of harm.). That no bystanders were directly in the vehicle's path,
however, is not, by itself, dispositive of whether a officer’s use of force was reasonable. See
Latits, 878 F.3d at 549. Police officers may continue to fire at a fleeing vehicle, even if no one is
in its direct path, when “the officer’s prior interactions with the driver suggest that the driver will
continue to endanger others with his car.” Cass, 770 F.3d at 375 (citing Hermiz, 484 F. App’x at
16); see Francis, 2022 WL 7973109, at *3 (citing Cass, at 375). The Supreme Court recently
explained that “[p]rior events may show . . . why a reasonable officer would have perceived
otherwise ambiguous conduct of a suspect as threatening.” Barnes, 605 U.S. at 80; see, e.g.,
Plumhoff, 572 U.S. at 776 (holding officers’ use of deadly force was reasonable in light of the
decedent’s “outrageously reckless driving [that] posed a grave public safety risk” and his
continued attempts to escape in his vehicle.).
Accordingly, the Court must assess whether, based on the totality of the circumstances, a
reasonable officer in each Defendant’s position would have had probable cause to believe that
Wild posed a danger to the officers or the public. Garner, 471 U.S. at 11.
D. Fourth Amendment Violation Analysis
Plaintiff contends that Defendants’ use of deadly force was unreasonable and, therefore, a
violation of Wild’s Fourth Amendment rights because: (1) at least two officers began shooting
six seconds before Wild started the truck; (2) Wild drove the truck forward at a slow rate of
speed; and (3) no one was in the truck’s direct path. ECF No. 76 at PageID ##: 1779–81.
Plaintiff’s first two arguments lack merit and are directly contradicted by video evidence. His
third requires closer examination.
1. Defendants did not shoot Wild before started the truck.
Plaintiff first argues that at least two officers fired on Wild before he started the truck.
ECF No. 76 at PageID ##: 1779–81. Although the Court must adopt Plaintiff’s version of the
facts, see Scott, 550 U.S. at 378, it cannot “adopt a version . . . that is blatantly contradicted by
video footage that is not doctored or altered in any way, and which clearly depicts the events that
actually happened.” Shumate v. City of Adrian, 44 F.4th 427, 438 (6th Cir. 2022).
Plaintiff points to the loud bangs heard on the body camera recordings before Wild
started the truck and accelerated forward, arguing that these bangs were gunshots. Plaintiff relies
on a portion of the BCI’s frame-by-frame video analysis, which states: “The truck did not appear
to be moving forward. A muzzle flash, a light and an opaque light-colored cloud was observed
on the right side of the video screen. This was likely a gunshot from a rifle fired by another
officer (possibly Smith)[.]” ECF No. 76 at PageID ##: 1780 (citing Moran Aff. Ex. A-7, ECF
No. 69-1 at PageID #: 803). Plaintiff’s reliance is misplaced. This analysis does not concern the
banging heard before Wild started the truck. It refers to gunfire recorded approximately 3.2
seconds after Wild had driven forward. Indeed, earlier sections of BCI’s frame-by-frame video
analysis reveal that Wild began driving before the first gunshot. See, e.g., Moran Aff. Ex. A-7,
ECF 69-1 at PageID #: 781 (“[T]he truck had driven forward . . . a few frames before the first (1)
gunshot fired[.]”) (emphasis added). The BCI analysis cited does not support Plaintiff’s claim
that officers fired before Wild started the truck.
Plaintiff also argues that Sgt. Bonar’s body camera recording depicts “lights appearing at
the tips of both rifles” and refers to these as “muzzle flashes” as described by defense expert
Samuel Faulkner during his deposition. ECF No. 76 at PageID #: 1781. Contrary to Plaintiff’s
claims, however, Mr. Faulkner testified that no gunfire was recorded prior to the truck moving
forward:
Q: Right. But you can see the gunshot, the light coming from the
rifle.
A: You – you will –
Q: If I’m shooting in the dark, you can see – when I discharge, you
can see a light, correct?
A: When they’re hitting the window, you can see the front of the
patrol rifle. There were no shots fired, so there are no flashes to go
by. It’s clear on the video.
Q: There’s no flashes?
A: No sir. They were – they were hitting the window with the barrel
of the patrol rifle.
Q: Yes. I understand that.
A: There are no flashes there because there were no gunshots – no
deformation to the window.
Faulkner dep. Tr., ECF No. 63-1 at PageID ##: 328–29, 15: 21–16:12.
Mr. Faulkner’s unrebutted expert testimony is supported by the body camera recordings
from multiple officers, including Sgt. Bonar, which do not show “muzzle flashes” or any other
indicators of gunfire before Wild started the truck. Rather, the recordings show the banging was
caused by Deputy Garito and Officer Pishotti hitting the passenger window with their rifle
muzzles in unsuccessful attempts to break the glass and stop the vehicle. Not only did Plaintiff
stipulate to this fact, see ECF No. 66 at PageID #: 533, ⁋ 28, but the body camera recordings
from Lt. Grimm, see Moran Aff. Ex. A-3 (Grimm BWC), ECF No. 69-1 at PageID #: 678
[timestamp: 01:16:00–03], and Trooper Boyle, see Moran Aff. Ex. A-4 (Boyle BWC), ECF No.
69-1 at PageID #: 681 [timestamp: 01:16:14–16], clearly depict it. While striking a window with
the muzzle of a rifle is ill-advised, it neither constitutes nor resulted in the use of deadly force.
The video evidence confirms that the first gunshots occurred approximately seven seconds after
Wild started the truck and 2.73 seconds after he accelerated forward. See, e.g., Moran Aff. Ex.
A-2 (Bonar BCW),7 ECF No. 69-1 at PageID #: 675 [timestamp: 1:16:13–19]; Moran Aff. Ex.
A-7, ECF No. 69-1 at PageID #: 814. Plaintiff’s claim that Defendants shot at Wild before the
vehicle was started is “blatantly contradicted” by the record. See Shumate, 44 F.4th at 438.
2. Wild accelerated quickly while at least one officer was in front of the truck.
Next, Plaintiff claims that qualified immunity does not attach because the evidence shows
(or, alternatively, that there is a genuine issue of material fact) that no one was in the truck’s
direct path and that the truck was moving at a slow rate of speed when police fired on it. ECF
No. 76 at PageID ##: 1780–81. The record supports neither claim.
First, the Court addresses Plaintiff’s claim that Wild was driving at a slow speed. In his
written statement to investigators, Sgt. Bonar said that Wild had the gas pedal completely down
and that once the truck gained traction, it accelerated rapidly. See Bonar dep. Ex. 1 (Bonar
Statement), ECF No. 64-1 at PageID #: 433. Officer Pishotti reported that once Wild started the
truck, he “immediately slammed on the gas, spinning the tires” and further testified that “as soon
as [Wild] got traction he was moving pretty good.” Pishotti dep. Tr., ECF No. 67-2 at PageID
##: 599–600, 7:8–8:2. Officer Smith also testified that although he could not recall how fast the
truck was moving, “it was fast enough that [an officer] had to jump” to avoid being hit. Smith
dep. Tr., ECF No. 67-1 at PageID #: 551, 13:17–22. Those statements are buttressed by the body
camera videos, which recorded the sound of the engine revving and the back tires spinning in the
dirt for approximately 4.3 seconds before the truck lurched forward. See, e.g., Moran Aff. Ex.
A-1 (Dean BWC-2), ECF No. 69-1 at PageID #: 672, [timestamp: 01:16:16–20]. Indeed, Wild
7 Plaintiff also submitted as evidence Sgt. Bonar’s body camera recording which
depicts the same course of events. See also Plf. Ex. B-2, ECF No. 76. For ease of reference,
the Court will use ECF No. 69-1 when citing to Sgt. Bonar’s body camera recording.
gained enough speed to run over a small tree directly in front of the truck. Moran Aff. Ex. A-1
(Dean BWC-2), ECF No. 69-1 at PageID #: 672 [timestamp: 01:16:18–20]. To claim Wild was
driving slowly ignores the clear video evidence that, although not moving at top speed, the truck
was accelerating rapidly such that it posed a significant risk to anyone in front of it.
Next, the record shows that Sgt. Bonar was in the truck’s direct path as it accelerated
forward. Prior to Wild starting the truck, multiple body camera recordings show that two
officers moved forward and positioned themselves in front of the truck. Trooper Boyle stood
against the cabin wall, near the driver’s side front bumper (see, e.g., Moran Aff. Ex. A-4 (Boyle
BWC), ECF No. 69-1 at PageID #: 681 [timestamp: 1:16:03–13]), and Sgt. Bonar directly in
front of the truck on a pile of debris. See, e.g., Moran Aff. Ex. A-2 (Bonar BCW), ECF No. 69-1
at PageID #: 675 [timestamp: 1:16:08–13]. Then, Wild started the truck, revved the engine, and
accelerated forward, forcing Trooper Boyle to jump out of the way to avoid being struck, while
Sgt. Bonar remained in front of the truck. See, e.g., Moran Aff. Ex. A-4 (Boyle BWC), ECF No.
69-1 at PageID #: 681 [timestamp: 01:16:16–20]; Moran Aff. Ex. A-2 (Bonar BCW), ECF No.
69-1 at PageID #: 675 [timestamp: 1:16:13–17]. The BCI analysis of Trooper Boyle’s body
camera recording confirms that Wild drove directly towards Sgt. Bonar without braking. Moran
Aff., Ex. A-7, ECF No. 69-1 at PageID #: 778; see Moran Aff. Ex. A-4 (Boyle BWC), ECF No.
69-1 at PageID #: 681 [timestamp: 01:16:19–20]. Approximately 2.73 seconds later, the first
gunshots can be heard. See, e.g., Moran Aff. Ex. A-4 (Boyle BWC), ECF No. 69-1 at PageID #:
681 [timestamp: 01:16:20–21]; Moran Aff. Ex. A-2 (Bonar BCW), ECF No. 69-1 at PageID #:
675 [timestamp: 1:16:17–18]; Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 814. Therefore,
Plaintiff’s claim that no one was in front of the truck as he drove it forward is contradicted by the
evidence.
There remains, however, a question as to whether Wild swerved away from Sgt. Bonar,
and whether the individual Defendants realized that a dangerous situation had evolved into a safe
one before firing.
E. Imminent Threat Analysis
Although the record shows that Sgt. Bonar was in front of the truck as Wild tried to flee,
it also shows that Wild swerved away from Sgt. Bonar at the last second. See, e.g., Bonar Aff.,
ECF No. 69-2 at PageID ##: 1413–14, ⁋⁋ 27–32. The Court must assess whether a reasonable
officer in Defendants’ respective positions would have had probable cause to believe that Wild
posed an immediate danger to Sgt. Bonar, other officers, or the public.
1. Defendants Garito, Pishotti, and Dean
Based on the uncontested record, the Court concludes that Defendants Garito, Pishotti,
and Dean acted reasonably under the totality of the circumstances and therefore did not violate
the Fourth Amendment.
The video evidence shows that Deputy Garito, Officer Pishotti, and Sgt. Dean were
positioned along the passenger-side of the truck. As Wild started the vehicle, Deputy Garito and
Officer Pishotti attempted to break the passenger-side window, with Deputy Garito using the
muzzle of his gun. Garito Aff., ECF No. 70-5 at PageID #: 1627, ⁋ 13; Pishotti dep. Tr., ECF
No. 67-2 at PageID #: 596, 5:13–20. Such efforts caused the gun to release its magazine, leaving
Deputy Garito with one bullet in the chamber, which he did not fire until after Wild had begun to
drive. Garito Aff., ECF No. 70-5 at PageID #: 1627, ⁋⁋ 15, 20. The BCI investigation
confirmed as much in its final report. Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 745.8 As
8 Moran’s report describes Deputy Garito’s “gun” as a “rifle.” ECF No. 69-1 at
PageID #: 744.
explained above, none of the defendants fired their weapons until after Wild had accelerated
forward.
Although Deputy Garito, Officer Pishotti, and Sgt. Dean acknowledge that they were not
in imminent danger, the evidence supports their beliefs that they were concerned about Wild
running over other officers in his attempt to flee. Deputy Garito averred that he believed an
officer was positioned “extremely close to the truck and/or in the direct pathway of the truck”
and that he fired his weapon out of concern that the officer was in immediate danger of being run
over. Garito Aff., ECF No. 70-5 at PageID ##: 1627–28, ⁋⁋ 19–21. He also described Wild’s
demeanor as “alarming” and “as if nobody was home.” Garito Aff., ECF No. 70-5 at PageID #:
1627, ⁋ 16. Officer Pishotti testified that he fired his weapon when he saw Wild driving towards
the officers standing near the front of the truck. Pishotti dep. Tr., ECF No. 67-2 at PageID ##:
597, 600, 5:24–25, 8:8–16. Similarly, Sgt. Dean stated that he fired a single shot, believing “it
was clear . . . that Mr. Wild was going to run someone over.” Dean Aff., ECF No. 74-1 at
PageID ##: 1724–25, ⁋⁋ 15–16. Such concerns were bolstered by Defendants’ knowledge of
Wild’s previous (and recent) efforts to evade police in two high-speed chases and statements
from his friends that Wild had no intention of complying with police. Garito Aff., ECF No. 70-5
at PageID #: 1628, ⁋ 23; Pishotti dep. Tr., ECF No. 67-2 at PageID #: 603, 11:21–24; ECF No.
66 at PageID ##: 531–32, ⁋⁋ 3, 5–8, 15.
Plaintiff identifies no evidence contradicting those accounts, which are supported by the
video recordings and other uncontroverted evidence in the record. As discussed above, at least
one officer (Sgt. Bonar) was directly in front of the truck as Wild revved the engine and
accelerated forward. Neither does Plaintiff demonstrate that Deputy Garito, Officer Pishotti, or
Sgt. Dean saw or realized that Wild had swerved away from Sgt. Bonar before firing their
weapons. In fact, Officer Pishotti explicitly testified that he did not see Wild turn away from the
path of hitting Sgt. Bonar. Pishotti dep. Tr., ECF No. 67-2 at PageID ##: 601–02, 9:25–10:2.
Furthermore, the record demonstrates these events occurred in the dark and over so short
a period of time as to inhibit these Defendants’ ability to quickly realize that a dangerous
situation had changed to a safe (or safer) one. See Francis, 2022 WL 7973109, at *2. Not only
did the truck’s position obstruct Defendants’ view of the officers in front of it, but the videos also
show that from the time Wild drove the car forward and the first gunshot was approximately 2.73
seconds, with all the gunfire lasting only 3.2 seconds. Moran Aff. Ex. A-7, ECF No. 69-1 at
PageID #: 814. Deputy Garito, Officer Pishotti, and Sgt. Dean each had to make a split-second
decision whether to use deadly force to stop Wild from hitting an officer in the path of Wild’s
fleeing truck.
Based on the record, a reasonable officer in the same position as Deputy Garito, Officer
Pishotti, or Sgt. Dean would have probable cause to believe that Wild posed an immediate threat
to the officers in front of the truck as he attempted to flee. Cass, 770 F.3d at 375 (citing Hermiz,
484 F. App’x at 16) (“An officer is justified in using deadly force against ‘a driver who
objectively appears ready to drive into an officer or bystander with his car.’”). As such, Deputy
Garito, Officer Pishotti, and Sgt. Dean’s discharging of their weapons was reasonable based on
the totality of the circumstances and, therefore, did not violate Wild’s Fourth Amendment rights.
Because there is no constitutional violation, the Court need not address the second “clearly
established right” prong of qualified immunity. See Mosier, 90 F.4th at 546. Similarly, the
Court need not address Sgt. Dean’s argument that Plaintiff cannot identify which bullet was
responsible for Wild’s fatal wounds. Defendants Garito, Pishotti, and Dean’s motions for
summary judgment regarding Plaintiff’s § 1983 claims are granted.
2. Defendant Bonar
Sgt. Bonar’s actions were also reasonable based on the totality of the circumstances.
Even if Sgt. Bonar’s conduct were unreasonable, the law at the time of the shooting did not
clearly establish that such conduct would violate the Constitution and, therefore, he remains
entitled to qualified immunity. Brosseau v. Haugen, 543 U.S. 194, 199–200 (2004).
a. Defendant Bonar’s use of a deadly force was reasonable.
Plaintiff begins by arguing that Sgt. Bonar “finished [Wild] off with a ‘close-range’ shot
to [Wild’s] head,” pointing to Defendants’ expert witness and the autopsy report for support.
ECF No. 76 at PageID #: 1780 (citing Faulkner dep. Tr., ECF No. 63-1 at PageID #: 328 and
Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 717). That contention misrepresents the record.
Mr. Faulkner testified that Sgt. Bonar admitted to firing first, not that he shot Wild in the
head and “finished him off.” ECF No. 63-1 at PageID #: 328, 15:6–11. The autopsy report
merely indicates that Wild suffered a gunshot wound to the “posterior head . . . centered at the
left occipital scalp characterized by a large primary penetrating defect.” Moran Aff. Ex. A-7,
ECF No. 69-1 at PageID ##: 717–18. It does not identify any specific Defendant as having
caused that wound. Indeed, the BCI laboratory could not confirm which rounds were fired from
which rifles. Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 816. Plaintiff offers no forensic
evidence or testimony supporting his claim that it was Sgt. Bonar who shot Wild in the head.
The record supports Sgt. Bonar’s claim that he reasonably believed Wild posed an
immediate threat to other officers. Sgt. Bonar averred (and video evidence confirms) that he
positioned himself on a pile of debris about 20 feet in front of the truck and “directly in its path.”
Bonar Aff., ECF No. 69-2 at PageID #: 1413, ⁋ 21; see Moran Aff. Ex. A-3 (Grimm BWC), ECF
No. 69-1 at PageID #: 678. Sgt. Bonar stated that there were several officers positioned behind
him and along the gravel driveway, although he did not know precisely where each stood. Bonar
Aff., ECF No. 69-2 at PageID #: 1413, ⁋ 22. Video evidence confirms that Officer Ellwood-
Bellas and Lt. Grimm were behind Sgt. Bonar, taking cover behind some trees as Wild drove
forward. Officer Smith was also behind Sgt. Bonar near the driveway. See, e.g., Moran Aff. Ex.
A-3 (Grimm BWC), ECF No. 69-1 at PageID #: 678; Moran Aff. Ex. A-7, ECF No. 69-1 at
PageID ##: 779–85, 789–91. Sgt. Bonar acknowledged that, although he was the first to fire his
weapon, see Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 760, he did not shoot when Wild
first accelerated towards him, explaining that he lacked a clear line of sight and was concerned
about crossfire with the other officers. Bonar Aff., ECF No. 69-2 at PageID #: 1413, ⁋⁋ 19–21;
Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 760. Rather, Sgt. Bonar fired only after Wild
veered away from him, claiming he feared for the safety of the officers behind him. Bonar Aff.,
ECF No. 69-2 at PageID ##: 1413–14, ⁋⁋ 27–32. Sgt. Bonar also explained that the truck was
accelerating towards where he had seen officers seconds before and was concerned they would
be run over. Bonar Aff., ECF No. 69-2 at PageID #: 1413, ⁋⁋ 27–28; Moran Aff. Ex. A-7, ECF
No. 69-1 at PageID #: 760–61.
Sgt. Bonar’s concerns were bolstered by his knowledge of Wild’s erratic and reckless
behavior both during and prior to this encounter. See Barnes, 605 U.S. at 80 (“Prior events may
show . . . why a reasonable officer would have perceived otherwise ambiguous conduct of a
suspect as threatening.”). Like the other Defendants, Sgt. Bonar knew that Wild had evaded
police in two high-speed chases and stolen a vehicle. Bonar Aff., ECF No. 69-2 at PageID #:
1412, ⁋ 11. And he had witnessed Wild ignore police commands, jump from the cabin’s window
into the truck, and attempt to flee. Bonar Aff. ECF No. 69-2 at PageID #: 1413, ⁋⁋ 19–21. As
Wild put the truck in drive, revved the engine, and spun the tires, Sgt. Bonar saw Trooper Boyle
jump out of the way before the truck accelerated directly towards him. Bonar Aff., ECF No. 69-
2 at PageID #: 1413, ⁋ 23. These claims are supported by the video evidence. See Moran Aff.
Ex. A-2 (Bonar BWC), ECF No. 69-1 at PageID #: 675 [timestamp: 1:16:13–19]; Moran Aff.
Ex. A-4 (Boyle BWC), ECF No. 69-1 at PageID #: 681 [timestamp: 1:16:13–20].
Moreover, the speed at which the situation escalated required Sgt. Bonar to make a split-
second decision. See Mullins, 805 F.3d at 766–67 (citing Godawa v. Byrd, 798 F.3d 457, 465
(6th Cir. 2015)) (“[Q]ualified immunity is available only whe[n] officers make split-second
decisions in the face of serious physical threats to themselves or others.”). As earlier indicated,
the time between Wild accelerating forward and the first shot was approximately 2.73 seconds,
and the entire shooting lasted just 3.2 seconds. See Moran Aff. Ex. A-7, ECF No. 69-1 at
PageID #: 814. Observing Wild accelerate towards him, and then towards the last known
position of his fellow officers, Sgt. Bonar reasonably believed they were in jeopardy and that he
only had seconds to act to prevent their imminent serious bodily injury. See Mullins, 805 F.3d at
766 (“[I]n analyzing the reasonableness of the [officer’s] use of force, we must look at [the
suspect’s] behavior immediately prior to the moment he was shot.”). Based on the record, the
totality of the circumstances demonstrates that a reasonable officer in Sgt. Bonar’s position
would have had probable cause to believe that Wild posed an immediate danger to the officers
behind him. Therefore, Defendant Sgt. Bonar’s conduct was not unreasonable and did not
violate Wild’s Fourth Amendment rights.
b. The “clearly establish right” prong is not satisfied.
Assuming, arguendo, that Sgt. Bonar’s conduct violated a constitutional right, Plaintiff’s
claim fails because that right was not clearly established at the time of the shooting. “A clearly
established right is one that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Latits, 878 F.3d at 552 (quoting Mullenix v.
Luna, 577 U.S. 7, 11 (2015)). Although it is well settled that police may not use deadly force to
stop a non-dangerous suspect from fleeing, see Garner, 471 U.S. at 9, “outside of the ‘obvious
case,’ general principles established in Garner and Graham cannot clearly establish the law.”
Gordon, 20 F.4th at 1082 (citing Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021)).
“Police officers are entitled to qualified immunity unless existing precedent ‘squarely
governs’ the specific facts at issue.” Id. (internal citations omitted). This requires “existing
precedent must have placed the statutory or constitutional question beyond debate.” Latits, 878
F.3d at 552. The controlling precedent must establish that the “particular conduct” is violative
“in light of the specific context of the case.” Id. (citing Mullenix, 577 U.S. at 12). While
precedent need not be directly on point, it must entail similar conduct and circumstances.
Mosier, 90 F.4th at 546.
To defeat qualified immunity, Plaintiff bore the burden of identifying precedent that
would have put Sgt. Bonar on clear notice that his conduct was unlawful. Rivas-Villegas, 595
U.S. at 6. That case must have defined the right with a “high degree of specificity, so that every
reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”
Zorn v. Linton, 146 S.Ct. 926, 930 (2026) (quoting District of Columbia v. Wesby, 583 U.S. 48,
63 (2018)) (cleaned up). “In short, officers receive qualified immunity unless they could have
read the relevant precedent beforehand and known that it proscribed their specific conduct.”
Zorn, 146 S. Ct. at 930 (quoting City and County of San Francisco v. Sheehan, 575 U.S. 600,
616 (2015)) (cleaned up).
In this case, Plaintiff did not identify any controlling jurisprudence from the Sixth Circuit
or the Supreme Court showing that a reasonable police officer would have been on notice that his
conduct, under the circumstances, clearly violated Wild’s Fourth Amendment rights. See ECF
No. 76. Sgt. Bonar points to Burghardt v. Ryan, 560 F. Supp. 3d 1093 (N.D. Ohio 2021) aff’d by
No. 21-3906, 2022 WL 1773420 (6th Cir. June 1, 2022). ECF No. 69 at PageID ##: 653–55.
In Burghardt, police were investigating a theft in the early hours of the morning when
they approached the suspected get-away vehicle. Burghardt, 560 F. Supp. 3d at 1097–98.
Surveillance camera and body camera video recordings depicted several police cars surrounded
the vehicle before officers approached on foot, positioning themselves on all sides of the vehicle.
Id. at 1099–1100. Rather than comply with police commands, the driver attempted to flee,
causing the tires to squeal as he hit the gas pedal and reversed into one of the police cruisers. Id.
at 1101. Unsure whether the suspect would attempt to flee by driving forward, two officers fired
on the vehicle, fearing that the officers directly in front of it were in danger of being run over.
Id. The district court concluded that the officers’ actions were reasonable under the
circumstances because the driver had demonstrated he was “desperate to escape,” and that an
officer was standing in the only path forward. Id. at 1110. The court explained that police were
not required to wait until it was too late for the officer to safely retreat before acting. In 2022,
the Sixth Circuit affirmed, holding:
That the van had already passed by the officers when they fired is
not dispositive here, what matters is that it remained a threat to strike
any of them when they opened fire. Williams v. City of Grosse
Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007). Thus, at the time
of this shooting, no case from this court or the Supreme Court made
clear that, under these circumstances, the officers could not open
fire.
Burghardt, 2022 WL 1773420, at *2.
The case at bar is also factually similar to Cass v. City of Dayton, 770 F.3d 368 (6th Cir.
2014). In Cass, police attempted to stop a vehicle in a parking lot after a controlled drug
purchase. As they approached the vehicle on foot, the driver floored the gas pedal, hitting two
officers. Fearful that other officers in the area may also be run over, one officer struck by the car
fired a single shot and killed the car’s passenger. Cass, 770 F.3d at 372. The Sixth Circuit held
that the officer’s response was objectively reasonable because the driver posed a continuing risk
of harm to other police in the immediate area, especially after the driver had already run down
two officers in his attempt to escape. Id. at 376.
Although neither case is directly on point, they are factually similar because Wild was
shot after he drove past the officers. As Burghardt makes clear, that Wild had already passed
Sgt. Bonar when he fired is not dispositive. See Burghardt, 2022 WL 1883420, at *2. What
matters is whether Sgt. Bonar had probable cause to reasonably believe Wild posed an imminent
threat of harm to others. For the reasons discussed above, the answer is yes. Although Wild did
not hit anyone with his vehicle, as in Cass, he was not complying with police commands,
accelerated directly towards Sgt. Bonar in his attempt to escape, and left Sgt. Bonar unsure
whether the officers behind him could avoid being run over. And again, the time between when
Wild started driving forward and the first gunshot was just 2.73 seconds, demonstrating that Sgt.
Bonar made a split-second decision. Accordingly, no case from the Sixth Circuit or the Supreme
Court put Sgt. Bonar on notice that his conduct would violate clearly established constitutional
rights and. Therefore, even if he violated the Fourth Amendment, he is entitled to qualified
immunity.
Defendant Bonar’s motion for summary judgment is granted.
3. Defendant Smith
Officer Smith argues he is entitled to qualified immunity because Wild posed an
imminent threat to the officers in front of the truck, forcing Officer Smith to make a “split-
second” decision. ECF No. 73 at PageID #: 1685. While there is some support for this position,
a reasonable jury could reach the opposite conclusion.
As discussed, it is generally unreasonable for police to shoot a fleeing driver who has
already passed officers and does not pose an immediate threat of death or significant bodily
injury to others. See Gordon, 20 F.4th at 1083 (collecting cases). In Latits v. Phillips, 878 F.3d
541 (6th Cir. 2017), the suspect fled after police initiated a late-night traffic stop and ordered him
out of the vehicle. Police chased him on a nearly9 empty ten-lane highway, reaching 60 miles
per hour. Id. at 544–45. They managed to push the suspect off the road, boxed him in with their
cruisers, and approached on foot with weapons drawn. The suspect drove forward slowly,
hitting one of the police cars, then slowly reversed past an on-foot officer who shot and kill him.
Id. at 545–46. The Sixth Circuit concluded the shooting was unreasonable because video
evidence showed officers had time to realize the suspect was no longer an immediate threat. Id.
at 548. It explained that no one was in the driver’s direct path and the driver’s intention was to
flee, not to injure the officers. Id. at 550. The Court also held that the driver did not pose an
imminent danger to the public because, although he had engaged in a police chase, he had driven
on a virtually empty highway late at night with no intention to drive recklessly through
residential areas. Id.
Although not directly on point, Latits is instructive. As in Latits, Defendants encountered
Wild at night and in remote area where there was little concern he would immediately race down
residential streets. Furthermore, it is undisputed that Officer Smith was not in imminent danger
9 During the thirty seconds of video, no pedestrians or non-police cars were visible
on the highway. Only a car parked two lanes away from the suspect was visible, at some
point. Latits, 878 F.3d at 545.
as Wild drove by him. Smith testified that he positioned himself behind a tree as the encounter
progressed. Smith dep. Tr., ECF No. 67-1 at PageID #: 546, 8:17. From his position, Officer
Smith was able to observe officers using their guns to bang on the passenger window, see Smith
dep. Tr., ECF No. 67-1 at PageID ##: 549–50, 11:22–12:3, and he saw officers in front of the
truck jumping out of the way to avoid being hit as Wild drove forward. Smith dep. Tr., ECF No.
67-1 at PageID #: 551, 13:3–12. Most telling is Officer Smith’s testimony that when he took aim
as Wild drove past him, he had to pivot left from “12 o’clock” to “9 and 11 o’clock” before
firing his weapon into the driver’s side rear window. Smith dep. Tr., ECF No. 67-1 at PageID #:
564, 26:6–25. Unlike the other Defendants, who were inhibited from seeing whether anyone was
in imminent danger, Officer Smith could see that no other officers were in Wild’s direct path as
he attempted flee down the driveway. Although Officer Smith knew that officers were located
several hundred yards away at the end of the driveway near Route 7, there is no evidence that
those officers were in imminent danger. Smith dep. Tr., ECF No. 67-1 at PageID ##: 555–56,
17:25–18:11; Moran Aff. Ex. A-7, ECF No. 69-1 at PageID #: 747 (“Sgt. Dean told the officers .
. . [t]here was a hunting cabin along the right side of the property driveway leading to [the] back
of the property and was about ½ mile back.”).
Notwithstanding the rapidly evolving situation, the record before the Court could permit
a jury to find that Officer Smith lacked probable cause to believe that Wild posed an imminent
threat to police or others before firing his weapon, that his use of deadly force was unreasonable,
and, therefore, that his conduct violated Wild’s Fourth Amendment rights.
Turning to the second qualified immunity prong, neither Plaintiff nor Officer Smith
provided any controlling Sixth Circuit or Supreme Court to aid the Court. See ECF No. 73; ECF
No. 76. Nevertheless, looking to Burghardt, Cass, and Latits (discussed above), Officer Smith’s
use of deadly force is distinguishable.10 In Burghardt, for instance, deadly force was reasonable
because the suspect had demonstrated he was desperate to flee, having reversed into the police
cruiser, and a police officer was standing in the only escape path. Burghardt, 2022 WL
1773430, at *2. In Cass, the suspect struck two officers and continued to accelerate, prompting
one of the officers to fire a single shot out fear for the other officers at the scene. Cass, 770 F.3d
at 372. Conversely, Officer Smith’s saw that no one was in Wild’s direct path, rendering
Burghardt unhelpful to him. Moreover, unlike in Cass, Wild did not hit anyone with his vehicle,
although there was a close call. This case is more like Latits because Officer Smith had time to
realize that a dangerous situation had transformed into a safe one and that Wild did not pose an
immediate threat to anyone at the scene. Unlike Sgt. Bonar, who was unsure whether officers
behind him were safe, Officer Smith knew there was no one in Wild’s direct path. Precedent
makes clear that, under these circumstances, a reasonable officer in Officer Smith’s position
would have known that his conduct was prohibited. Therefore, he is not entitled to qualified
immunity and Officer Smith’s motion for summary judgment is denied.
F. State-Law Claims
Plaintiff’s state-law claims for wrongful death against Defendants Bonar, Garito, Pishotti,
and Dean fail. Because he cannot establish a Fourth Amendment violation, he likewise cannot
10 The dissent in Latits makes a similar argument when questioning why one of the
officers was granted qualified immunity. Relying on Smith v. Cupp, 430 F.3d 766 (6th Cir.
2005) to argue that Latits’ right was clearly established at the time of the violation, Judge
Clay wrote: “According to the plaintiffs’ evidence, [the officer] shot [Smith, who was
fleeing in a stolen police cruiser,] after the [stolen] police cruiser was past [the officer] and
there was no immediate danger to anyone in the vicinity. . . Although there was some
danger to the public from Smith’s driving off in a stolen police car, the danger presented
by Smith was not so grave as to justify the use of deadly force.” Latits, 878 F.3d at 557
(Clay, J. concurring in part, dissenting in part) (emphasis added). The jury, in this case,
could ask this same question of Officer Smith’s shooting.
overcome those Defendants’ claim of state-law immunity. Under Ohio law, state employees are
immune from civil liability for injuries caused by conduct taken within the scope of employment
unless: (a) the conduct was manifestly outside the scope of their employment; (b) the conduct
was done with malicious purpose, in bad faith, or in a wanton or reckless manner; or (c) civil
liability is expressly imposed by Ohio law. Ohio Rev. Code § 2744.03(A)(6). When the
question of state-law immunity turns on the same question of material fact as federal qualified
immunity, courts may consider the state-law immunity question through the federal qualified
immunity lens. Raimey v. City of Niles, Ohio, 77 F.4th 441, 451 (6th Cir. 2023) (citing Wright v.
City of Euclid, 962 F.3d 852, 878 (6th Cir. 2020)).
It is the plaintiff’s burden to show the state employee is not entitled to immunity. Wiley
v. City of Columbus, Ohio, 36 F.4th 661, 671 (6th Cir. 2022) (citing Cook v. City of Cincinnati,
103 Ohio App. 3d 80, 90–91 (Ohio Ct. App. 1995)). Plaintiff has not met that burden. He does
not assert that Defendants were acting outside the scope of their employment and, having failed
to demonstrate that Defendants Bonar, Garito, Pishotti, and Dean’s individual conduct was
unreasonable, he cannot show that they acted with malicious purpose, in bad faith, or in a wanton
or reckless manner. See Cass, 770 F.3d at 377 (citing Chappell v. City of Cleveland, 585 F.3d
901, 916 n.3 (6th Cir. 2009)). Therefore, Sgt Bonar, Deputy Garito, Officer Pishotti, and Sgt.
Dean’s motions for summary judgment on Plaintiff’s state-law claims are granted.
Because, under the Fourth Amendment, Officer Smith’s use of deadly force raises a
genuine dispute, there is also a genuine issue of material fact as to whether he acted with
malicious purpose, bad faith, or in a wanton or reckless manner. Accordingly, Officer Smith’s
motion for summary judgment on Plaintiff’s state-law claims is denied.
IV. CONCLUSION
For the foregoing reasons, Daniel Lane’s affidavit, and attachments thereto, included with
Plaintiff’s opposition to Defendants’ Motions for Summary Judgment are stricken from the
record.
The Motions for Summary Judgment of Defendants Jason Bonar (ECF No. 69), Dennis
Garito (ECF No. 70), and Cody Dean (ECF No. 74) are granted. Defendants Jarett Pishotti and
Shane Smith’s Motion for Summary Judgment (ECF No. 73) is granted as to Defendant Jarett
Pishotti and denied as to Defendant Shane Smith.
Judgment shall be entered in favor of Defendants Jason Bonar, Dennis Garito, Cody
Dean, and Jarett Pishotti, and the case against them is dismissed. Defendant Shane Smith’s
Motion for Summary Judgment (ECF No. 73) is denied. The case against Defendant Shane
Smith shall proceed to trial. A separate Trial Order shall issue.
IT IS SO ORDERED.
July 24, 2026 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge