Petition for Writ of Certiorari — Joseph Frasure, Individually and as Co-Administrator of the Estate of Joe Frasure, Deceased, et al., Petitioners v. City of Wyoming, Ohio, et al.
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APPENDIX 1 of 2
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Table of Contents
United States Court of Appeals Sixth Circuit Opinion & Judgment .............. la
United States Court of Appeals Mandate .......................................................... 24a
United States Court of Appeals Denying Petition for Rehearing en Banc..25a
Southern District Court of Ohio order/Daubert ................................................. 26a
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Kelly L. Stephens
Clerk
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATl, OHIO 45202-3988
Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: May 05, 2026
Mr. Justin M. Bums
Dinsmore & Shohl
191 W. Nationwide Boulevard, Suite 200
Columbus, OH 43215
Ms. Keeley Gogul
Dinsmore & Shohl
255 E. Fifth Street, Suite 1900
Cincinnati, OH 45202
Ms. Glenda Ann Smith
Law Office
P.O. Box 15353
Wyoming, OH 45215
Re: Case No. 25-3750, Frasure, et al v. City of Wyoming, Ohio, et al.
Originating Case No. 1:24-cv-00092
Dear Counsel,
The Court issued the enclosed opinion today in this case.
Enclosed are the court's unpublished opinion and judgment, entered in conformity with Rule
36, Federal Rules of Appellate Procedure.
Sincerely yours,
s/Laurie A. Weitendorf
Opinions Deputy
cc: Mr. Richard W. Nagel
Enclosures
Mandate to issue
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File Name: 26a0204n.06
No. 25-3750
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH FRASURE and LISA FISHER, )
individually and as Co-Administrators of the Joe )
Frasure Estate, deceased,
)
)
Plaintiffs-Appellants,
)
)
V.
)
)
CITY OF WYOMING, OHIO; DREW JONES; )
JORDAN BATTS; RYAN WARMACK,
)
)
Defendants-Appellees.
KELLY L. STEPHENS, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION
Before: KETHLEDGE, WHITE, and LARSEN, Circuit Judges.
HELENE N. WIDTE, Circuit Judge. Plaintiffs Joseph Frasure ("Frasure") and Lisa
Fisher ("Fisher"), individually and as co-administrators of their son Joe Frasure Jr.'s ("Joe") estate,
brought this action against police officers Drew Jones ("Jones"), Jordan Batts ("Batts"), and Ryon
Warmack ("Warmack," together "Officers") and the City of Wyoming, Ohio ("City," referred to
as "Defendants" together with "Officers") for claims arising out of the fatal officer-involved
shooting of their son Joe. Frasure1 appeals orders excluding his expert witness, granting summary
judgment in favor of Defendants, and denying his motion for partial summary judgment. We
AFFIRM.
I.
Facts
Joe's grandmother died on January 6, 2023.
During the afternoon of January 29,
1
We follow the parties' approach and refer to Plaintiffs Frasure and Fisher as "Frasure" collectively when
referring to them in their capacity as Plaintiffs.
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2023, Frasure, Joe, and other family members went to clean out her apartment, a top-floor unit of
a two-story, four-unit apartment building at 320 Durrell Avenue in Wyoming, Ohio.2 Several
Wyoming police officers were in the building's vicinity while the family was cleaning out the
apartment. At around 11:45 p.m. that day, and under the impression that the unit needed to be
emptied to receive the security deposit, Frasure and Joe returned to the building to meet Joe's sister
and continue the clean out.
Shortly after midnight on January 30, 2023, Jerome Guest, a neighbor, called what
he believed to be a non-emergency City line.3 Guest reported that, although he understood that
320 Durrell "was supposed to be vacant," he could see people ''walking around it and doing maybe
suspicious things at a late hour" including people "walking around in the window" and "flashlights
in the basement." R. 9-1, Ex. C, 0:27-1:03. Guest did not affirmatively mention a potential
burglary but, when asked by dispatch "how many people are trying to break into the house," Guest
reported seeing two or three people. Id at 1:26-1:45. Because he could only see silhouettes, he
was unable to provide descriptions.
The call was dispatched to the Wyoming Police "to investigate a group of two
three subjects attempting to break into the vacant residence" at 320 Durrell but with the note
that the caller was unable to provide a description and could only see silhouettes. R. 9-1, Ex. D,
0:03--0:38. The Officers responded to the dispatch call in police cars, though they approached
3a
2
According to Plaintiff Fisher, at some point after the grandmother's death, her brother (Joe's uncle) told
Wyoming Police employees at the City precinct that family members would be removing the grandmother's
belongings but did not specify a particular date or time.
3
Although he indicated to the answering agent that he was "trying to call the Wyoming non-emergency line,"
Guest called the Hamilton County police dispatch. R. 9-1, Ex. C, 0:03-0:12.
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320 Durrell on foot. Each wore a body-worn camera ("BWC")4 and a uniform with a police badge
and other police indicia. All three Officers had been previously dispatched to 320 Durrell for other
calls including domestic-violence incidents, thefts, break-ins, and a drug-related shooting.
Although Warmack and Batts were aware that an elderly tenant in the building had recently died,
and Warmack knew that the building was in some stage of condemnation, there is no evidence that
any of the Officers knew that family members were cleaning out the apartment unit.
Warmack arrived at 320 Durrell at approximately 12:41 a.m. He initially walked past the
front of 320 Durrell and up the driveway between 320 Durrell and 322 Durrell. In the paved area
behind 320 Durrell, Warmack observed two parked cars, including a silver van. He then walked
back down the driveway toward the street and up a few steps to 320 Durrell's front door, which he
tried to open but found locked. He heard indiscernible voices inside, and observed that the
basement, upper unit, and lower right unit were illuminated.5 As he descended the front steps,
Warmack said "I got people inside." Warmack BWC, 00:43:10--43:14.6 When he tried to open
the door, Warmack did not identify himself as an officer.
Jones and Batts arrived at 320 Durrell at the same time as Warmack but from the opposite
direction. Jones and Batts observed lights on in an upper unit, lower unit, and the basement, and
the silhouettes of people in an upstairs unit. Standing on the side of the building further away from
322 Durrell, they called dispatch to ask if the caller had identified which apartment was being
burglarized. As they awaited an answer, Batts hypothesized that "it had to be the upstairs one
4
Both Plaintiffs and Defendants entered the BWC footage into the record. See R. 9-1, Ex. E, ID #X603 l l 664
("Warmack BWC"); R. 9-1, Ex. F, ID #X603 l 7296 ("Batts BWC"); R. 9-1, Ex. G, ID #X603 l 7846 ("Jones BWC");
see also R. 50, Exs. K-M (same). All three BWCs record virtually the same period.
5
In an affidavit submitted in support of Defendants' motion for summary judgment, Warmack attested that
he had "see[n] shadows in the front-right apartment ... which suggested there were individuals accessing the lowerlevel of the building." R. 49-4, PID 1610. This was not captured in Warmack's body-camera footage.
6
It is not clear if Warmack was speaking into his radio or to Jones and Batts.
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because the old lady died." Jones BWC, 00:42:15-20. Batts and Jones observed someone looking
out of the upper-left unit's window and heard a bang-like noise and voices inside. Later in his
deposition, Jones testified that he "heard someone ma[k]e a statement that they understood that
law enforcement was outside and they could hear [Jones and Batts] talking," but this is not
discernible on either Batts' or Jones' body-camera footage. R. 42-1, PID 720.
Batts and Jones then moved toward the building's front and saw an individual at the
window of an upper unit and Warmack descending the front steps. Jones walked up to the front
door and tried to open it but also found it locked. Jones later testified during his deposition that
he "saw someone running down the steps" through the opaque glass door panel, and that "someone
passed by the door window," but this is not captured by his body-camera footage. Id. at PID 721.
While Jones was at the front door, Batts asked "do you want to order them out, we can order them
out, the window's open," to which Jones did not respond. Batts BWC, at 00:43:38-46. Like
Wannack, Batts and Jones never identified themselves.
At around 12:43 a.m., Warmack headed back up the driveway. As he approached the rear
of 320 Durrell, his pace quickened, and he yelled "Back." Warmack BWC, 00:43:45-51. Still at
the building's front, Jones and Batts heard Warmack and started to run up the driveway, Jones
with his weapon drawn.7 Warmack ran toward the paved area at the back of the building where
he saw Frasure standing next to a silver van with his hands in the air. Wannack shouted "hey,
stop" at Frasure. Warmack BWC, 00:43:54. Frasure then appears to have dropped at least one
hand to his waist before Warmack commanded him to "put your hands in the air," after which
7
In an interview conducted a few days after the incident, Jones said he only "faintly hear[d]" Warmack
yelling "back." R. 9-1, Ex. K, 15:30:20--41. However, in affidavits submitted for summary judgment, both Jones and
Batts averred that they perceived Warmack's voice to be "strained" or conveying "a sense of urgency." R. 49-5, PID
1619; R. 49-6, PID 1628.
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Frasure raised and kept his hands up. Id. at 43:55-58. Throughout, Frasure repeatedly said "I
ain't going nowhere." Warmack BWC, 00:43:52-44:00. During this initial encounter, Warmack
unholstered his firearm. Although not evident from the body-camera footage, according to
Frasure's testimony, Warmack pointed his gun at him.8 When Jones and Batts arrived a few
seconds later, they stood by the rear of 320 Durrell with their firearms pointed at Frasure for several
seconds.
As Warmack approached Frasure, he saw Joe in the van's driver's seat and pointed his
firearm at him.9 The sound of the van's ignition can be heard on the body-camera footage after
which Warmack moved toward the front of the van with his weapon drawn. He repeatedly yelled
"stop" and ordered Joe to "get out of the car now." Warmack BWC, 00:44:00-02. The van
reversed until it ran into an obstruction and stopped momentarily, and then the engine revved and
the van began accelerating forward. Warmack appears to have been a few feet in front of the van
when it began moving forward and he jumped out of the way to avoid being hit. Warmack later
testified that he perceived the van as a threat but did not fire his weapon because "[he] knew [he]
could jump out of the way." R. 40-1, PID 520. The entire time the van was moving forward,
Warmack continued to yell commands for Joe to stop the car and for Joe to get out of the car,
including once the van had passed him.
When the van began to reverse, Batts ran in front of Jones and descended the grassy hill
between the driveway and the paved area. As Batts descended, Jones said "we got a vehicle taking
8 Warmack testified that he had initially placed his frrearm at a low ready position and denied pointing it at
Frasure. Construing the facts in Frasure's favor, however, the magistrate judge assumed that Warmack did point his
firearm at Frasure during their initial encounter.
9 When interviewed a few hours after the incident, Frasure said that Joe was fleeing because he had an
outstanding warrant for absconding. R. 49-21, Ex. 4, 4:07:31--41; 04:12:25-30. However, later in his deposition,
Frasure denied that Joe was wanted. R. 44-1, PID 1006. Frasure does not offer another explanation for why Joe
attempted to evade arrest.
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off, silver van, one at gunpoint." Jones BWC, 00:44:02-05. When the van accelerated forward,
Batts was positioned behind Warmack and, with his firearm raised at the van, repeatedly told
Warmack to "back up" and "be careful." Batts BWC, 00:44:01-10. Jones, who was still by the
rear of 320 Durrell, also witnessed the van accelerating forward and yelled at Warmack to back
up. Jones later testified that the car "almost ran over" Warmack and that, because he saw
Warmack's "flashlight spin around," he "wasn't sure if [Warmack] had been side-swiped" by the
van. R. 42-1, PID 721.
After the van passed Warmack, Joe honked its horn and continued driving forward. The
van accelerated toward the grassy hill, where Batts was standing, and in the direction of the
driveway. Batts turned and ran up the grassy hill to the driveway toward the back comer of
322 Durrell. Jones ran close to the inside wall of 320 Durrell with his weapon raised at the van.
The van continued driving forward and appeared to tum toward the driveway. At 12:44:14
a.m., after the van cut close to him, Jones fired one shot. In an interview conducted three days
after the shooting, Jones recalled initially thinking he was in "a pretty okay spot" until the van
turned toward the driveway. R. 9-1, Ex. K, 15:35:06-34. Jones said that as the van turned toward
the driveway, he had "lost track" of Batts but that Batts was "definitely in front of the van ...
somewhere on the right side." Id. at 15:36:04-13. In his deposition, Jones stated he shot because
he "fear[ed] f[or] [his] life and was certain Officer Batts was going to be struck" and that he "had
to try to stop the threat toward the van, the person driving the van, who was about to strike Officer
Batts." R. 42-1, PID 722.
At approximately the same time as Jones, Batts fired his weapon three times. When Batts
fired his weapon, the van's tires were turned away from him. In his initial interview, Batts stated
that he was "running sideways" and saw the van "moving directly at [him]" when he discharged
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his weapon. R. 9-1, Ex. J, 16:07:27-55. Later in his deposition, Batts testified that, before
shooting his weapon, he "could sense the van gaining" on him, that it was only a few feet away,
and that he was "running for [his] life." R. 49-6, PID 1630-31. Batts stated that he felt "that [he]
would be crushed by [the] van into 322 Durrell" or sideswiped and that "the firing of [his] firearm
is what saved [his] life." Id at PID 1631.
Just over three minutes elapsed between when the Officers arrived at 320 Durrell and when
the shooting occurred. There were only 30 seconds between when Warmack initially saw Frasure
and Joe in the paved area and when Batts and Jones discharged their weapons, less than 15 seconds
between when the van initially started reversing and the shooting, and around five seconds between
when the car began accelerating forward and when Jones and Batts discharged their weapons.
After the shooting, the van crashed into 320 Durrell. While Warmack moved toward the
van, Batts returned to the rear of the driveway where he spotted Frasure still in the paved area.
Batts pointed his flashlight and firearm at Frasure and repeatedly ordered him to "get down on the
fucking ground." Batts BWC, 00:44:31-39. Frasure did not comply and approached the other
vehicle in the paved area, leaning against its hood. Jones then pointed his firearm at Frasure,
commanding him to get on the ground. Before Frasure complied, Jones said, "you're gonna get
shot! On the ground!" Jones BWC, 00:45:00-03. As Frasure knelt with his hands up, he replied,
"why you gonna shoot me for?" Id at 45:05-15.
Joe was pronounced dead at 4:21 p.m. on January 31, 2023 at the University of Cincinnati
Medical Center. The cause of death was recorded as a "gunshot wound of head," R. 48-5, PID
1515, and the post-mortem exam report stated that the bullet entered a few inches behind his left
inner ear and traveled "left to right, back to front, and slightly do[w]nward," id at 1514, 1517.
The Hamilton County Sheriff's Office Criminal Investigation Section conducted an
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independent investigation into the shooting, which included a taped interview with Frasure a few
hours after the incident, at which time Frasure did not know if Joe was alive. Frasure initially
stated that neither Batts nor Jones were in danger but later said that Joe "may have been" close
enough to Batts to run him over and that "if [he] was a cop [he]'d probably do the same thing."
R. 49-21, Ex. 4, 04:06:57-07:01, 04:13:00-12. Later, at his deposition, Frasure testified that he
did not remember the interview or "half of the stuff'' he said because he "was scared to death they
weren't going to let [him] go home" and that he told the officers "anything they wanted to hear so
[he] could get to [his] son." R. 44-1, PID 977-78.
The investigation's findings were presented to the Hamilton County prosecutor who
concluded that the Officers had acted in self-defense and, therefore, decided not to bring charges.
The City then convened a Use of Force Review Board to conduct a further independent
investigation. The Review Board "unanimously decided" that Jones' and Batts' actions were
within department policy, including the policies "for the application of deadly force [and] the use
of force at moving vehicles." R. 49-17, PID 1898. Brooke Brady ("Chief Brady"), the City's
police chief, reviewed and accepted these findings.
II.
Procedural History
On February 23, 2024, Frasure and Fisher, individually and as co-administrators of Joe's
estate, sued the Officers and the City. Frasure raised eight claims. These included three Fourth
Amendment excessive-force claims under42 U.S.C. § 1983-(1) a claim against all of the Officers
for pointing their firearms at Frasure and Joe prior to the shooting; (2) a claim against Jones for
pointing his firearm at and threatening Frasure after the shooting;10 and (3) a claim against Batts
10
Frasure initially brought this claim against Batts but later filed an amended complaint substituting in Jones.
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and Jones for their use of deadly force; various municipal constitutional claims under 42 U.S.C.
§ 1983 against the City;11 related state-law claims for wrongful death against the City, Batts, and
Jones; and negligence against all Defendants. The parties consented to the jurisdiction of a
magistrate judge. After discovery, the parties filed cross-motions for summary judgment; Frasure
sought summary judgment on the three excessive-force claims and Defendants sought summary
judgment on all claims.
Defendants submitted the expert reports of a forensic analyst who performed a
reconstruction of the Officers' use of force using photograrnrnetric and spectrographic audio
analyses, a forensic criminologist and law enforcement practices expert, and an expert in policing
and training. In support of his summary judgment motion, Frasure proffered the expert report of
Dr. Lawrence Hunter ("Hunter"), a retired police captain from Connecticut, to opine on the
Officers' use of force. Defendants moved to exclude Hunter's testimony for failure to comply
with Federal Rule of Civil Procedure 26 because, in part, his report did not identify all the facts
and data he considered in forming his opinion. Defendants further contended that Hunter's
testimony was barred by Rule 702 because Hunter was unqualified to be an expert on excessive
force, his opinion did not assist the factfinder, and his opinion was unreliable. The magistrate
judge granted Defendants' motion, finding first that the Rule 26 errors were neither substantially
justified nor harmless and, second, that although Hunter was qualified, his opinion would not assist
the factfinder and was otherwise unreliable.
In a separate order, the magistrate judge granted Defendants' motion for summary
11 Frasure initially asserted two of his three municipality claims (for ratification and failure to train) against
all Defendants. At summary judgment, Defendants argued that these claims as asserted against the Officers must fail
because municipal liability claims cannot be brought against individuals and were otherwise duplicative. Plaintiffs
did not respond to this argument. The magistrate judge therefore considered the argument conceded and addressed
these claims only as asserted against the City. Because Frasure does not appear to challenge this ruling on appeal, we
consider the municipality liability claims against the City only.
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judgment and denied Frasure's partial motion. The magistrate judge found that the Officers were
entitled to qualified immunity for Frasure's three excessive-force claims because Frasure had not
demonstrated a constitutional violation or a clearly established right and also granted summary
judgment for Defendants on Frasure's municipal liability and state-law claims. This appeal
followed.
III.
Analysis
"We review grants of summary judgment and qualified immunity de novo." Novak v.
Federspiel, 140 F.4th 815, 820 (6th Cir. 2025). Summary judgment is appropriate where "there is
no genuine dispute [of] material fact and the movant is entitled to jlJdgment as a matter of law."
Fed. R. Civ. P. 56(c). "We view the evidence in the light most favorable to the nonmovant and
draw all reasonable inferences in his favor." Raimey v. City of Niles, 77 F.4th 441, 447 (6th Cir.
2023). Where video evidence, like bodycam footage, captures the relevant events, we "may not
adopt a version of the facts [that] blatantly contradicts the asserted version of events such that no
reasonable jury could believe it," and are to construe any "gaps or uncertainties" in the videos in
the nonmovant's favor. Naji v. City of Dearborn, 120 F.4th 520, 523 (6th Cir. 2024) (citation
modified).
We review the magistrate judge's decision to exclude expert testimony for abuse of
discretion, "recognizing, of course, that such review calls for deference to the district court's
decision." Conwood Co., L.P. v. US. Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002); see also
United States v. Rios, 830 F.3d 403,413 (6th Cir. 2016). We will reverse only if"we are left with
a definite and firm conviction that [the district court] committed a clear error of judgment."
Conwood, 290 F.3d at 781.
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A. Qualified Immunity
Frasure challenges the magistrate judge's finding that qualified immunity barred all three
excessive force claims. Qualified immunity "protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory of constitutional
rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223,
231 (2009) (citation modified). The doctrine "balances two important interests-the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably." Id To
overcome the Officers' qualified-immunity defense, Frasure must establish that "the evidence,
viewed in the light most favorable to [him], would permit a reasonable juror to find that (1) the
[Officers] violated a constitutional right; and (2) the right was clearly established." Raimey,
77 F.4th at 447 (citation omitted).
The Fourth Amendment's guarantee against unreasonable searches and seizures protects
an individual's right not to be subjected to excessive force during an arrest, investigatory stop, or
other seizure of his person. Graham v. Connor, 490 U.S. 386,394 (1989); see also U.S. CONST.
amend. IV. The question is whether the search or seizure was objectively reasonable under the
circumstances in which it occurred "[t]aken in the light most favorable to the party asserting the
injury," Scott v. Harris, 550 U.S. 372, 377 (2007), but as 'judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight," Goodwin v. City
of Painesville, 781 F.3d 314, 321 (6th Cir. 2015) (citation omitted). Although the ultimate
determination of reasonableness must be based on the totality of the circumstances, we have found
three factors to be helpful in excessive force cases: "the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
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resisting arrest or attempting to evade arrest by flight." Id (citation omitted). We do not assess
these factors from a distance but rather consider that "police officers are often forced to make splitsecond judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular situation." Mullins v. Cyranek, 805 F.3d 760,
765-66 (6th Cir. 2015).
If the facts show that a constitutional right was violated, we next ask "whether the right
was clearly established ... in light of the specific context of the case." Scott, 550 U.S. at 377. 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." Reichle v. Howards, 566 U.S. 658,
664 (2012) (citation modified). "In other words, existing precedent must have placed the statutory
or constitutional question confronted by the official beyond debate." Plumhoff v. Rickard,
572 U.S. 765, 779 (2014) (citation modified). Usually, this requires a plaintiff to "point to a case
showing that reasonable officers would have known their actions were unconstitutional under the
specific circumstances they encountered." Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir.
2022). But "in an obvious case," the law can be clearly established "even without a body of
relevant case law." Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
1.
Frasure first claims that the Officers used excessive force when they pointed their firearms
at him and Joe prior to the shooting. The magistrate judge concluded, and Frasure does not appear
to dispute, that Warmack pointed his weapon at Frasure and Joe for approximately six seconds
each, Jones pointed his weapon at Frasure and Joe for about 10 seconds, and Batts pointed his
weapon at Frasure for one second and at Joe "for a moment or two" prior to the shooting. R. 90,
PID 3981, 3983, 3985. Frasure challenges both the magistrate judge's finding that the Officers'
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pointing their weapons did not violate Frasure and Joe's constitutional rights and that the right was
not clearly established.
Because Frasure has not demonstrated a clearly established right relevant to this claim, "we
begin and end with the second prong" of the qualified immunity analysis. Gordon v. Bierenga,
20 F.4th 1077, 1082 (6th Cir. 2021). Frasure "bears the burden of showing that a right is clearly
established," yet there is scant mention in his brief of any cases clearly establishing the alleged
violation here. Wiley v. City of Columbus, 36 F.4th 661,669 (6th Cir. 2022).12 And Brown v. City
o/Wyoming, 2024 WL 5040781 (6th Cir. Dec. 9, 2024) (per curiam}--the only case Frasure raises
that could be construed as relevant to this claim-was decided after the events at issue and is
therefore "of no use in the clearly established inquiry." Brosseau, 543 U.S. at 600 n.4.13
Regardless, Brown is both distinguishable and unhelpful to Frasure.
In Brown, officers were dispatched to a suspected breaking and entering based on a call
from a neighbor. 2024 WL 5040781, at *1. One of the officers ("Wieber") had previously
responded to a trespassing call made by the same neighbor at the same address and had arrested
the suspected trespasser. Id On his way to the building, Wieber called the neighbor who
confirmed that the man trespassing was the same person Wieber had previously arrested. Id. at
*2. When Wieber arrived, he and the other officers commanded anyone inside the house to exit
with their hands in the air. Id Three men exited. Despite realizing that the person he had
previously arrested was not present, Wieber continued shouting commands and eventually arrested
12
Indeed, the only section ofFrasure's brief that appears to be dedicated to the "clearly established" prong
for all three excessive force claims is a single paragraph generally stating the law.
13 Frasure also several times cites Graham v. Connor when arguing that the Officers acted unreasonably when
they pointed their weapons at him and Joe. Even ifwe construe these citations as part ofFrasure's "clearly established
argument," Graham alone does not provide the level of specificity sufficient to clearly establish a violation. White v.
Pauly, 580 U.S. 73, 80 (2017) ("[W]e have held that [Tennessee v. Garner, 471 U.S. 1 (1985)] and Graham do not
themselves create clearly established law outside an obvious case.") (citation modified).
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the men. Id Although Wieber's weapon was drawn during the entirety of these events, it was
pointed at the ground. Id. at *6. One of the officers accompanying Wieber pointed his weapon
momentarily at the plaintiffs, while the other trained his gun on them for less than three minutes,
lowering it only when the plaintiffs had been handcuffed. Id at *6-7.
We found that qualified immunity barred the plaintiffs' claims of excessive force against
all the officers, including the officer who pointed his weapon at the plaintiffs for several minutes.
Id at *6-9. In reaching this conclusion, we emphasized that the officer only "briefly trained his
weapon on plaintiffs to protect himself and his fellow officers, who were responding to a potential
felony breaking and entering" and that the caselaw does not make clear that "every reasonable
officer in [his] shoes would have understood that what he was doing violate[d] a constitutional
right." Id at *8 (citation modified). It therefore follows that the Officers' pointing their weapons
at Frasure and Joe for at most ten-seconds during a burglary investigation is not a constitutional
violation clearly established by law.
Frasure's claim that Jones used excessive force after the shooting when he pointed his
firearm and shouted at Frasure that "you're gonna get shot" fails for the same reason. Further,
Frasure does not identify which part of the magistrate judge's analysis he challenges, develop any
argument beyond stating in conclusory fashion that Jones used excessive force in violation of
Frasure's Fourth Amendment rights, or cite a single case. The Officers are therefore entitled to
qualified immunity for both excessive force claims premised on the drawing of their weapons.
2.
Frasure next contends that the magistrate judge erred in granting qualified immunity to
Jones and Batts for their use of deadly force. Frasure takes issue with the magistrate judge's
reliance on the Officers' "self-serving affidavits" and their experts' reports over the body-camera
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footage and interviews, which he contends "do not support the theory Jones and Batts feared for
their lives nor that it was objectively reasonable for them to fear for their lives." Appellants' Br.
at 23, 25.
Frasure is correct that our analysis is first and foremost guided by the body-camera footage
with any gaps construed in his favor. But that does not preclude us from considering the Officers'
affidavits and deposition testimony to the extent they are consistent with the video evidence. For
example, Batts' testimony that, as he was running up the hill, he peered over his shoulder, sensed
the van gaining on him, and saw the front of the van "only a handful of feet away" is consistent
with the body-camera footage showing Batts running away from the van in the seconds before the
shooting. R. 49-6, PID 1630-31. On the other hand, the video evidence does not conclusively
support Batts' assertion that he shot because he felt "the van was going to crush [him] into the wall
of 322 Durrell" and that "the van [was] closing in on [him] and the space between the buildings
[was] already narrow." Id. at 1631. Even so, however, it is clear from the body-camera footage
that the van was moving towards Batts in the moments before he fired such that we cannot say that
no reasonable officer would have perceived a threat in that moment. Frasure additionally
challenges the magistrate judge's reliance on Jones' later testimony that he shot because he was
afraid of being sideswiped and, though he had lost track of where Batts was, was certain Batts was
going to be struck as incompatible with the video evidence. But Jones' testimony is consistent
with his body-camera footage, which captures the car cutting towards him and Batts' running in
front of the van the second before Jones fired.
Frasure further argues that Smith v. Cupp, 430 F.3d 766 (6th Cir. 2005) clearly established
the right not to be seized by deadly force when fleeing arrest. But Frasure has not shown that
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Jones and Batts violated a clearly established right. Lawler ex rel. Lawler v. Hardeman County,
93 F.4th 919, 925 (6th Cir. 2024).
The law "does not require a case directly on point for a right to be clearly established, [but]
existing precedent must have placed the statutory or constitutional question beyond debate."
White, 580 U.S. at 79 (citation modified). The "clearly established law" should not be defined "at
a high level of generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). "[S]pecificity is
especially important in the Fourth Amendment context, where the Court has recognized that it is
sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive
force, will apply to the factual situation the officer confronts." Mullenix v. Luna, 577 U.S. 7,
12 (2015) (per curiam) (citation modified). However, "[t]here need not be a case with the exact
same fact pattern or even 'fundamentally similar' or 'materially similar' facts," to find an officer
is not entitled to qualified immunity. Binay v. Bettendorf, 601 F.3d 640, 652 (6th Cir. 2010)
(quoting Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005)). "[J]ust as a court can
generalize too much, it can generalize too little. If it defeats the qualified-immunity analysis to
define the right too broadly" then "it defeats the purpose of § 1983 to define the right too
narrowly." Hagans v. Franklin Cnty. Sheriff's Off, 695 F.3d 505, 508-09 (6th Cir. 2012).
Smith v. Cupp, the one case Frasure cites, is distinguishable. There, an officer arrested a
suspect for making harassing phone calls, a misdemeanor. 430 F.3d at 769. The officer read the
suspect his Miranda rights, patted him down, cuffed him, and put him in the back of the police car.
Id. The officer then left the car unattended with the engine running, and the suspect climbed into
the driver's seat and began to drive. Id. According to the plaintiffs evidence, the officer shot the
suspect after the car had gone by the officer and "there was no immediate danger to anyone in the
vicinity." Id. at 773. In concluding that the officer's use of force was unreasonable, we
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emphasized that the suspect "had been cooperative up to this point, and was arrested for the
nonviolent offence of making harassing phone calls." Id Importantly, we highlighted evidence
that the officer had lied when recounting the scene, as well as evidence that he was running up to
the side of the car and "was never in the line of flight." Id. at 774. And although we recognized
that the events had developed rapidly, we determined that "this [was] not a case where a dangerous
situation evolved quickly to a safe one before the police officer had a chance to realize the change"
in part because the officer "was not in any danger in the first place." Id at 774-75.
Here, unlike the suspect in Cupp, Joe was a suspect in a burglary who had not been patted
down or secured. Joe was uncooperative before the shooting; less than five seconds before they
fired, Jones and Batts saw Joe disobey Warmack's orders and then drive toward him, causing him
to jump out of the way. And in the moments right before the shooting, Batts was directly in front
of the car, running away as it accelerated up the grassy hill. Jones' and Batts' conduct is therefore
unlike that of the officer in Cupp, who tried "to get between the [car] and the exit" when the car
was accelerating and "fired as he ran toward the driver side of the car after the car passed him."
Id at 774. Additionally, as we have recognized in distinguishing Cupp, that case "involved
officers confronting a car in a parking lot and shooting the non-violent driver as he attempted to
initiate flight." Latits v. Phillips, 878 F.3d 541, 553 (6th Cir. 2017) (emphasis in original). Batts
and Jones shot Joe after he had already initiated flight, sought to evade capture, nearly hit
Warmack, and was driving in their direction-"important factual distinction[s] that se[t] this case
apart." Id.
To be sure, we have previously found that Supreme Court and Sixth Circuit caselaw clearly
establishes that an officer may not use deadly force against a fleeing felon who poses no threat to
others, but those cases involved materially different circumstances from those present here. See,
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e.g., Bouggess v. Mattingly, 482 F.3d 886, 894--95 (6th Cir. 2007) (applying Garner to hold that
an officer who employs deadly force against a suspect running directly away from the officer on
foot is not entitled to qualified immunity); Sigley v. City of Parma Heights, 437 F.3d 527,537 (6th
Cir. 2006) (same where officer "was running behind [the suspect's] car, out of danger, and [the
suspect] drove in a manner to avoid others on the scene in an attempt to flee); Godawa v. Byrd,
798 F.3d 457, 465-68 (6th Cir. 2015) (applying Garner and Cupp to hold that "a genuine dispute
of material fact exist[ed] regarding the circumstances of [the officer's] impact with [the plaintiff's]
vehicle" where officer who used deadly force "was positioned near the rear passenger side [when]
he fired his weapon" and the suspect "never attempted to hit [the officer] with his car and did not
drive in a manner that endangered [the officer's] life"). Because our analysis must be "reasonably
particularized," these key differences render these cases insufficiently analogous. Latits, 878 F.3d
at 552 (citation modified).
In sum, Frasure has not pointed to a case that meets the requisite level of specificity to
place Jones and Batts on notice that their conduct was unlawful. For this reason, the district court
did not err when finding Jones and Batts were entitled to qualified immunity.
B. Municipal Liability
Frasure's remaining claims are for municipal liability against the City. The precise theories
of municipal liability that Frasure presses are somewhat unclear, but he appears to allege that the
City failed to train or supervise officers, had a custom and policy of failing to train, and ratified
past unconstitutional behavior.
A municipality can be held liable for a constitutional violation under§ 1983 if the plaintiff
demonstrates that the violation occurred "because of a municipal policy or custom." Franklin
v. Franklin County, 115 F.4th 461,470 (6th Cir. 2024) (quoting Burgess v. Fischer, 735 F.3d 426,
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478 (6th Cir. 2013)). To make a showing of an illegal policy or custom, a plaintiff must
demonstrate one of the following: (1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom of
tolerance or acquiescence of federal rights violations. See Thomas v. City of Chattanooga,
398 F.3d 426, 429 (6th Cir. 2005). A municipality may not be sued under§ 1983 on a theory of
vicarious liability for injury inflicted by its employees or agents. Monell v. Dep't of Soc. Servs.,
436 U.S. 658,694 (1978).
Frasure's arguments regarding his municipal liability claims are fatally undeveloped. See
Thomas v. United States, 849 F.3d 669,679 (6th Cir. 2017). The thrust of his argument on appeal
consists of statements made by Chief Brady, Jones, Warmack, and Batts copied and pasted from
his summary judgment briefing that Frasure states, without analysis, demonstrate the City's failure
to train and supervise. In several places, Frasure asserts contradictory facts that undermine key
elements of his claims,14 and he elsewhere fails to allege any facts establishing the required
elements, including causation. Absent too are citations to any cases-including Monell-or an
explanation of how the magistrate judge erred. It is insufficient "for a party to mention a possible
argument in the most skeletal way, leaving the court to ... put flesh on its bones." McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (citation omitted). Because Frasure's claims are
"adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,"
14
For example, Frasure states simultaneously that the City police department had "no procedure or training
manual" but also that the department's written policy manual was inadequate. Compare Appellants' Br. at 35 with id.
at 33; R. 58, PID 2050-51. And, in support of his failure-to-supervise claim, he asserts at once that Jones, who was
in a supervisory role on the shift, did not adequately communicate with Batts and Warmack, see Appellants' Br. at 33,
but also that "[t]here was no supervisor on duty," id. at 35.
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they have been forfeited. Buetenmiller v. Macomb Cnty. Jail, 53 F.4th 939, 946 (6th Cir. 2022)
(citation modified).
C. Expert Disqualification
Finally, Frasure appeals the magistrate judge's disqualification of his expert, Dr. Hunter,
for failure to comply with Fed. R. Civ. P. 26(a)(2)(B) and under Fed. R. Evid. 702. Frasure argues
that the failure to timely provide a signed expert report, Hunter's CV, and an exhaustive list of
evidence on which Hunter relied was harmless, and that Hunter's report complies with F.R.E. 702
because it is consistent with the expert report admitted in Huntzinger v. Coyle, 2022 WL 95280
(E.D. Ky. Jan. 10, 2022).
In his report, Dr. Hunter summarizes "three seminal court cases that guide law enforcement
in their application of use of force,"15 as well as sections of the City's policies and procedures
manual and non-binding national policies and papers on the use of force. R. 58-1, PID 2058-66.
The section dedicated to "Officer Analysis" includes screenshots from the Officers' body-camera
footage accompanied by Hunter's narration of the events depicted. Id. at PID 2066-78. The report
ends with Hunter's "findings" detailing "better approaches" the Officers could have taken and
opportunities to de-escalate that are apparent "with hindsight." Id. at PID 2078-81.
Because we agree with the magistrate judge's determination that "Dr. Hunter's report is
not particularly important to the resolution of this matter" and its admission would not have altered
the ultimate outcome ofFrasure's excessive force and municipal liability claims, we need not reach
the question whether the report's exclusion amounts to an abuse of discretion. R. 89, PID 3941.
For example, Hunter opines that Batts was "finished running" when he "turned around to engage
15 These cases are Terry v. Ohio, 392 U.S. I (1968), Tennessee v. Garner, 471 U.S. I (1985), and Graham
v. Connor, 490 U.S. 386 (1989).
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with the [van]" and that both Batts and Jones were clearly standing on the grass when they
discharged their weapons. R. 58-1, PID 2071, 2077. Hunter recognizes, however, that Batts was
"running away" from the van as it drove forward. Id. at PID 2074. And the video evidence makes
clear that what Hunter refers to as "engagement" was Batts turning and shooting as the van moves
toward him. Our caselaw recognizes that officers may use deadly force when confronted with a
rapidly evolving threat, including where a dangerous situation turns quickly into a safe one before
officers have a chance to realize it or react. Hunter's conclusion that the Officers "could have or
should have moved out of the way" would not support a finding that it was unreasonable for the
Officers not to have simply moved out of the way in what Hunter acknowledges was a rapidly
evolving situation. Id. at PID 2079-80.
And Hunter's statement that "(a]t no time [were]
Warmack or Jones in danger of being struck" implicitly concedes that Batts was. Id. at PID 2080.
Any error in striking the report outright was thus harmless and does not warrant reversal.
See Int'! Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Aguirre, 410 F.3d
297, 304 (6th Cir. 2005) (finding district court's exclusion of expert affidavit harmless where the
affidavit "would not [have] alter[ed] our conclusion that defendants cannot be held liable" if
admitted).
IV.
Conclusion
For the foregoing reasons, we AFFIRM.
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::&ffiaYffilJ
l..lllmlumm1t:4lliiB ltHmtt llffi/OOWYJfi H1agJB:2l3
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 25-3750
JOSEPH FRASURE and LISA FISHER, individually
and as Co-Administrators of the Joe Frasure Estate,
deceased,
FILED
KELLY L. STEPHENS, Clerk
Plaintiffs - Appellants,
v.
CITY OF WYOMING, OHIO; DREW JONES;
JORDAN BATTS; RYAN WARMACK,
Defendants - Appellees.
Before: KETHLEDGE, WHITE, and LARSEN, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
THIS CAUSE was heard on the record from the district court and was submitted on the briefs
without oral argument.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is
AFFIRMED.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens, Clerk
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Case: 25-3750
Document: 43
Filed: 07/09/2026
Page: 2
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No: 25-3750
Filed: July 09, 2026
JOSEPH FRASURE, individually and as Co-Administrator Joe Frasure Estate; LISA FISHER,
individually and as Co-Administrator Joe Frasure Estate, deceased
Plaintiffs - Appellants
V.
CITY OF WYOMING, OH; PATROLMAN DREW JONES; POLICE OFFICER JORDAN
BATTS; POLICE OFFICER RYAN WARMACK
Defendants - Appellees
MANDATE
Pursuant to the court's disposition that was filed 05/05/2026 the mandate for this case hereby
issues today.
COSTS: None
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(1 of 2)
Page: 1
No. 25-3750
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH FRASURE and LISA FISHER,
individually and as Co-Administrators of the Joe
Frasure Estate, deceased,
Plaintiffs-Appellants,
v.
CITY OF WYOMING, OHIO; DREW JONES;
JORDAN BATTS; RYAN WARMACK,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
)
)
Jul 1,2026
KELLY L. STEPHENS, Clerk
ORDER
BEFORE: KETHLEDGE, WHITE, and LARSEN, Circuit Judges.
The court received a petition for rehearing en bane. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision of the case. The petition then was circulated to the full
court. No judge has requested a vote on the suggestion for rehearing en bane.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
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Case: 1:24-CV-00092-KLL Doc#: 89 Filed: 09/17/25 Page: 1 of 22 PAGEID #: 3933
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOSEPH FRASURE, et al.,
Plaintiffs,
Civil Action No. 1:24-cv-92
Litkovitz, M.J.
vs.
CITY OF WYOMING, OHIO, et al.,
ORDER
Defendants.
This matter is before the Court on defendants' Daubert motion and motion in limine
regarding plaintiffs purported expert witness, Lawrence Hunter (Doc. 65). Plaintiffs opposed
the motion (Doc. 67), and defendants filed a reply (Doc. 72).
I.
BACKGROUND
A. Facts
On January 30, 2023, Wyoming, Ohio police officers pointed a weapon at plaintiff
Joseph Frasure, Sr., and fatally shot his son, Joseph Frasure, Jr., while responding to a report of a
burglary in progress. Plaintiffs filed this action pursuant to 42 U.S.C. § 1983, alleging, among
other claims, that the officers employed excessive force in violation of the Fourth Amendment.
(Docs. 1, 52).
Plaintiffs retained Lawrence Hunter, a retired police captain from Connecticut, as an
expert witness in this case. Dr. Hunter produced a report which plaintiffs attached to their
complaint. (Doc. 1-1).1 Pursuant to the Court's Amended Calendar Order, the parties were
1 The report attached to plaintiffs' complaint (Doc. 1-1) appears identical to the report attached to defendants'
Daubert motion and motion in limine (Doc. 65-1). For ease of citation and to minimize toggling between various
documents, the Court will cite to the copy attached to the instant motion in limine.
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required to disclose expert witnesses and submit expert reports no later than February 3, 2025.
(Doc. 28). Defendants deposed Dr. Hunter on March 17, 2025 (Doc. 65-6), and then filed the
instant motion to exclude or, alternatively, to limit Dr. Hunter's expert testimony (Doc. 65).
Plaintiffs oppose defendants' motion (Doc. 67).
B. Procedural Posture
Defendants have moved to exclude any opinion evidence offered by plaintiffs' purported
expert, Dr. Lawrence Hunter, because plaintiffs failed to comply with Federal Rule of Civil
Procedure 26(a)(2)(B) and because Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993) bar Dr. Hunter's testimony. (Doc. 65). Specifically,
defendants contend that plaintiffs' disclosure did not comply with Rule 26 because: Dr. Hunter
did not sign his report; he failed to identify the facts or data considered in forming his opinion;
he failed to disclose his qualifications, including a list of all publications authored in the last ten
years; and he failed to provide his deposition and trial testimony history from the last four years.
(Doc. 65 at PAGEID 2786-90). Defendants further contend that Rule 702 bars Dr. Hunter's
testimony because he is not qualified to render an expert opinion on excessive force (id. at
PAGEID 2791-92); his opinion does not assist the fact finder because it infringes on the province
of the Court and the jury by applying legal precedent and deciding the ultimate issue (id. at
PAGEID 2792-94); and his opinion does not meet the requirements for reliability (id. at
PAGEID 2794-2804).
Plaintiffs counter that the Rule 26 "procedural errors" in submitting Dr. Hunter's report
were due to inexperience and have been or will be corrected. (Doc. 67 at PAGEID 2933-35).
Plaintiffs further argue that Dr. Hunter's law enforcement experience and related education
2
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qualify him as an expert in this case (id at PAGEID 2935-36); Dr. Hunter's methodology was
reliable (id at PAGEID 2936-38); Dr. Hunter's testimony will assist the trier of fact (id at
PAGEID 2938-42); and Dr. Hunter's testimony should not be limited (id. at PAGEID 2942-43).
II.
RULE 26 REQUIREMENTS
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), an expert disclosure must
include:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them; (ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them; (iv) the witness's
qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and (vi) a statement of the compensation to be
paid for the study and testimony in the case.
"Rule 26 mandates disclosure from each side of a case to enable the other side to prepare for trial
and to prevent surprise tactics from affecting the case's outcome." Baker v. Blackhawk Mining,
LLC, 141 F.4th 760, 772 (6th Cir. 2025). The rule "places a 'level ofrigor and detail' on
disclosing expert testimony[,]" and "[t]he expert opinion must 'outline a line ofreasoning arising
from a logical foundation' and 'include the "how" and "why," not just his conclusions."' Id.
(quoting Adkins v. Marathon Petroleum Co., LP, 105 F.4th 841, 850 (6th Cir. 2024)).
If a party fails to comply with Rule 26(a) or supplement disclosures as required by Rule
26(e), Rule 37(c) "prohibits the party from using '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."' Baker, 141 F.4th at 772 (quoting Fed. R. Civ. P. 37(c)(l)). Failure to timely provide
the facts or data considered by the witness in forming his opinion or failure to provide a
comprehensive list of all cases in which an expert has testified in the previous four years renders
3
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the disclosure deficient under Rule 26. Id at 773 (rejecting the plaintiffs' claim that such
information was "worthless" or otherwise "derived from freely available public resources").
"When an expert disclosure is deficient under Rule 26(a), Rule 37 exclusion is 'mandatory
unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake
was harmless."' Id. (quoting Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596
F.3d 357,370 (6th Cir. 2010)).
In this case, plaintiffs' counsel acknowledges that she inadvertently failed to timely
satisfy the Rule 26(a)(2)(B) requirements because "Dr. Hunter and [p]laintiffs' counsel are
relatively inexperienced in the procedural rules regarding experts." (Doc. 67 at PAGEID 2934).
Plaintiffs attached Dr. Hunter's unsigned report to their complaint. (Doc. 1-1). However,
plaintiffs failed to provide Dr. Hunter's "qualifications, including a list of all publications
authored in the previous 10 years" or the list of cases in which he testified during the previous
four years, as Rule 26(a)(2)(B)(iv) and (v) require. Regarding the Rule 26(a)(2)(B)(ii)
requirement that an expert provide the facts or data considered in forming his opinion, Dr.
Hunter stated:
To prepare for this case, Atty Smith sent me numerous videos, court documents,
dispatch audio, the Wyoming (OH) Police Duty Manual, and other pertinent
materials. I reviewed all materials provided by Atty Smith, with particular
emphasis on the body-worn cameras, video-recorded officer interviews, Hamilton
County press release, and crime scene photos.
(Doc. 65-1 at PAGEID 2814).
On December 30, 2024, defendants' counsel emailed plaintiffs' counsel specifically
directing her attention to Rule 26(a)(2)(B) and asking that plaintiffs supplement their expert
disclosures to comply with that Rule. (Doc. 65-2 at PAGEID 2843). The email also notified
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plaintiffs' counsel that failure to timely supplement Dr. Hunter's expert disclosure would result
in a motion to strike and/or limit his testimony. (Id.).
On February 13, 2025, defendants' counsel again emailed plaintiffs' counsel indicating
that they still had not received Dr. Hunter's expert disclosure supplement, as required by the
Federal Rules of Civil Procedure. (Doc. 65-3 at PAGEID 2845). When plaintiffs' counsel
responded that she had "sent the below Hunter report four times," defendants' counsel again
reiterated that they were not asking for Dr. Hunter's report, stating:
Merely providing Dr. Hunter's report is not the same as disclosing an expert
witness. As you know, a party cannot just disclose an expert by providing a report
- a party must provide other information as well. The issue is not the production
of his report - it is everything else required by Fed. R. Civ. P. 26(a)(2) when
disclosing expert witnesses - which Plaintiffs have not provided.
(Doc. 65-4 at PAGEID 2848-49). Defendants' counsel then referenced his December 30, 2024
email and again outlined the deficiencies. (Id. at PAGEID 2849). Plaintiffs' counsel then
indicated that she would ask Dr. Hunter for "information regarding publication and testimony."
(Doc. 65-4 at PAGEID 2848).
On March 17, 2025, defendants deposed Dr. Hunter. (Doc. 65-6 at PAGEID 2855). At
his deposition, Dr. Hunter testified that the "case experience" list he provided following
defendants' February 13, 2025 emails still did not disclose his testimony history because he
listed cases in which he had been retained to prepare a report, even if he did not testify or prepare
the report requested. (Hunter Depo., Doc. 65-6 at PAGEID 2876-77).
More importantly, Dr. Hunter--even at his deposition-failed to identify all of the facts,
data, or exhibits he considered in analyzing the officers' actions and reaching his conclusions.
His report noted that he considered "numerous videos, court documents, dispatch audio, the
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Wyoming (OH) Police Duty Manual, and other pertinent materials" that plaintiffs' counsel sent
to him. (Doc. 65-1 at PAGEID 2814). When deposed on March 17, 2025-well after the expert
discovery deadline-Dr. Hunter testified:
It's on my hard drive at home, so I can't give you an exhaustive list, but I certainly
can create a supplement to expose that. There was the 9-1-1 tape. There were other
body-worn cameras by officers who were not at the scene. Other body-worn
cameras from different officers. There were some reports, some data logs, dispatch
times, things along those lines.
(Doc. 65-6 at PAGEID 2884). Dr. Hunter acknowledged that he did not disclose prior to his
deposition all of the facts or data that he considered in forming his opinions (id.), and he was
unable to recall specific videos. recorded interviews, or other documents that he considered in
forming his opinions. (Id. at PAGEID 2884-87).
As plaintiffs admit that Dr. Hunter's expert report failed to comply with Rule 26(a)(2),
they "can avoid the exclusion sanction by showing that [their] failure to comply with Rule 26
was 'substantially justified' or 'harmless."' Adkins, 105 F.4th at 849-50 (quoting Fed. R. Civ. P.
37(c)(l)). See RJ Control Consultants, Inc. v. Multiject, LLC, 100 F.4th 659, 668 (6th Cir. 2024)
(Where party fails to comply with Rule 26(a)'s requirements, "exclusion of such evidence is
'automatic and mandatory' unless the offending party can show that its nondisclosure was
substantially 'justified or harmless."') (quoting Dickenson v. Cardiac & Thoracic Surg. of E.
Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004)).
Courts consider the following factors in assessing substantial justification and
harmlessness:
(1) the surprise to the party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the evidence; and (5) the
nondisclosing party's explanation for its failure to disclose the evidence.
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RJ Control Consultants, Inc., 100 F.4th at 668-69 (quoting Howe v. City of Akron, 801
F.3d 718, 748 (6th Cir. 2015)). The Howe factors need not be applied rigidly, and district
courts enjoy broad discretion in applying them. Id. at 669. "The factors simply lend
themselves to the task at the heart of Rule 37(c)(l): separating 'honest,' harmless
mistakes from the type of 'underhanded gamesmanship' that warrants the harsh remedy
of exclusion." Bisig v. Time Warner Cable, Inc., 940 F.3d 205,219 (6th Cir. 2019)
(quoting Bentley v. Highlands Hosp. Corp., No. cv 15-97, 2016 WL 5867496, at *10
(E.D. Ky. Oct. 6, 2016)).
The first Howe factor weighs in favor of exclusion. Even where a plaintiff has disclosed
his expert's identity, area of expertise, and brief summary, a defendant experiences surprise and
would have difficulty combating the expert's testimony at trial without more information. RJ
Control Consultants, 100 F.4th at 669. Indeed, the "federal rule contemplates not only the
identification of the expert, but also the provision of a written report containing a complete
statement of all opinions and the basis and reasons therefor." Id. (quoting Reese v. Herbert, 527
F.3d 1253, 1265 (11th Cir. 2008) (internal quotation marks omitted). While Dr. Hunter's
opinions are unsurprising given that his report was provided to defendants at the litigation's
outset, the facts and information he considered in forming those opinions remain largely
unknown. Defendants attempted to cure that surprise by referring plaintiffs' counsel to the Rule
26(a)(2)(B) requirements via emails in December 2024 and February 2025 and by deposing Dr.
Hunter. (Doc. 65-2 at PAGEID 2843; Doc. 65-3 at PAGEID 2845; Doc. 65-4 at PAGEID 2848;
Doc. 65-6 at PAGEID 2884-87). However, those efforts were unsuccessful as Dr. Hunter
acknowledged that he did not adequately include that information in his report and testified at his
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deposition that he was unable to recall the specific information he considered in forming his
opinions. (Doc. 65-6 at PAGEID 2884-87). See EQT Production Co. v. Magnum Hunter
Produc., Inc., 768 F. App'x 459, 468-69 (6th Cir. 2019) (finding surprise analysis weighed in
favor of exclusion where damages calculation witness failed to disclose data underlying his
opinion prior to his deposition). But see American Power, LLC v. Harris, Nos. 3:l 7-cv-347 and
3:21-cv-21, 2024 WL 5200803, at *2 (S.D. Ohio Dec. 23, 2024) (finding no surprise even
though plaintiff failed to timely comply with Rule 26(a)(2)(B) where defendant received expert's
report well before the deadline and could have deposed him but did not).
The second and third Howe factors weigh slightly in favor of exclusion. In some cases,
courts have held that the ability to cross-examine witnesses by subsequent deposition or at trial
may remedy the surprise and minimize impact on the trial. Howe, 801 F.3d at 749; American
Power, 2024 WL 5200803, at *3 (citing Howe). In other cases, courts have upheld exclusion to
avoid rescheduling trial or reopening discovery once it has closed because "allowing expert
testimony would require the non-defaulting party 'to bear the effort and expense necessary to
cure [plaintiffs'] failure to disclose,' which 'would arguably reward [plaintiffs] for [their]
untimeliness and does nothing to deter similar conduct from future litigants." RJ Control
Consultants, 100 F.4th at 669-70 (quoting EQT Production Co., 768 F. App'x at 469).2 In this
case, defendants possessed Dr. Hunter's report well before the expert discovery deadline,
requested supplementation twice, and travelled to Connecticut to depose Dr. Hunter. Now, after
discovery is over and motions for summary judgment are pending, plaintiffs still have not
2 In EQT Production Co., the Court noted that it had, at times, "held that the ability to cross-examine witnesses
about late disclosures during trial both provided an opportunity to remedy surprise and minimized impact on the
trial" and deemed those Howe factors "to be neutral, not pulling clearly in favor of or against" exclusion. 768 F.
App'x at 469.
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provided the specific information Dr. Hunter considered in forming his opinions. Requiring the
disclosure of information and items considered in forming an expert opinion "ensures parties
have the information they need to assess an expert's opinions and to effectively cross-examine
him." Brainchild Surgical Devices, LLC v. CPA Global Ltd., 144 F.4th 238,256 (4th Cir. 2025).
Under the circumstances present in this case, the Court finds that the second and third Howe
factors weigh slightly in favor of excluding Dr. Hunter's report from consideration.
The fourth factor-the importance of the evidence-is frequently described as
"cut[ting] both ways." RJ Control Consultants, 100 F.4th at 670 (quoting Bisig, 940 F.3d
at 220). "The more important the proof, the greater the effect of preclusion, but also the
greater the harm in tardy disclosure." Id. (quoting Bisig, 940 F.3d at 220). As will be
more fully examined below, Dr. Hunter's report is not particularly important to the
resolution of this matter. Thus, this factor neither weighs for nor against either party.
Finally, as their explanation for failing to comply with Rule 26(a)(2)(B), plaintiffs
state only that "Plaintiffs' counsel receives voluminous, verbose, communications from
Defendants[, and] Dr. Hunter and Plaintiffs' counsel are relatively inexperienced in the
procedural rules regarding experts." (Doc. 67 at PAGEID 2934). This factor weighs in
favor of exclusion. Even after defendants repeatedly referred plaintiffs to the appropriate
requirements and the applicable federal rule, plaintiffs failed to comply. Indeed, in the
memorandum in opposition to defendants' Daubert motion, plaintiffs still fail to
understand that the Rule 26 requirements for expert witness disclosures are not "harmless
technicalities" (Doc. 67 at PAGEID 2935) or that Dr. Hunter's vague references to "other
pertinent materials" and "materials provided by Atty Smith" do not satisfy Rule
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26(a)(2)(B). The expert disclosure rule specifically requires that an expert report "must
contain" "the basis and reasons" for his opinions, "the facts or data considered by the
witness in forming them," the witness's qualifications (including publications in the last
10 years), and a four-year list of prior testimony. Fed. R. Civ. P. 26(a)(2)(B).
To summarize, application of the Howe factors indicates that plaintiffs' failure to
comply with Rule 26(a)(2)(B) was neither substantially justified nor harmless.
Accordingly, Rule 37(c)(l) requires that Dr. Hunter's opinions be excluded as evidence
on summary judgment and at trial.
III.
RULE 702 AND DAUBERT INQUIRIES
Although Dr. Hunter's opinions should be excluded pursuant to Federal Rule of Civil
Procedure 37(c)(l), in the alternative and in the interest of thoroughness, the Court will evaluate
whether Dr. Hunter's report satisfies the requirements imposed by Federal Rule of Evidence 702.
Pursuant to Rule 702:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Rule 702 entrusts courts with a '"gatekeeping role' to 'ensur[e] that an expert's testimony both
rests on a reliable foundation and is relevant."' In re Onglyza (Saxagliptin) and Kombiglyze
(Saxagliptin and Metformin) Prods. Liab. Litig., 93 F.4th 339,345 (6th Cir. 2024) (quoting
Daubert, 509 U.S. at 597). As the Sixth Circuit has explained:
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Parsing the language of [Rule 702], it is evident that a proposed expert's opinion is
admissible, at the discretion of the trial court, if the opinion satisfies three
requirements. First, the witness must be qualified by "knowledge, skill, experience,
training, or education." Fed. R. Evid. 702. Second, the testimony must be relevant,
meaning that it "will assist the trier of fact to understand the evidence or to
determine a fact in issue." Id. Third, the testimony must be reliable. Id.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). See also United States
v. Anderson, 67 F.4th 755, 767 (6th Cir. 2023). The party proffering the expert must show by a
preponderance of the evidence that Rule 702 is satisfied. Davis v. Sig Sauer, Inc., 126 F.4th
1213, 1223-24 (6th Cir. 2025). Of course, "rejection of expert testimony is the exception, rather
than the rule." Id. at 1224 (quoting In re Scrap Metal Antitrust Litig., 527 F.3d at 530).
A. Qualifications
Defendants contend that Dr. Hunter is not qualified to render opinions about whether the
officers' use of deadly force3 was "excessive" because he lacks specialized education or
experience in processing or investigating crime scenes, officer-involved shootings, or ballistics.
(Doc. 65 at PAGEID 2791-92). A witness cannot qualify as an expert "simply because he selfidentifies as such," but the Sixth Circuit takes a "liberal view" of what satisfies Rule 702's
"knowledge, skill, experience, training, or education" requirement. Bradley v. Ameristep, Inc.,
800 F.3d 205,209 (6th Cir. 2015). "Whether a proposed expert's experience is sufficient to
qualify the expert to offer an opinion on a particular subject depends on the nature and extent of
that experience." Id.; American Strategic Ins. Corp. v. Meyer, No. l:23-cv-119, 2025 WL
3 Dr. Hunter's report states that he was "hired as an expert in the use of force to determine whether the actions taken
by Officers Jones and Batts were reasonable in accordance with established court decisions and best law
enforcement practices" and whether "the officers involved in killing Joe Frasure, Jr. fire[d] their weapons
unnecessarily, or could they have found a different method to apprehend him?" (Doc. 65-1 at PAGEID 2812, 2820).
Dr. Hunter was asked at his deposition whether he offered any opinions on the actions of Officer Warmack, and he
testified, "So, I only looked at the shooting, the officers who fired their weapons. That was what I was looking at."
(Doc. 47-1 at PAGEID 1340-41).
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845560, at *3 (S.D. Ohio Mar. 18, 2025) (same quotation). "[T]he issue with regard to expert
testimony is not the qualifications of a witness in the abstract, but whether those qualifications
provide a foundation for a witness to answer a specific question." Madej v. Maiden, 951 F.3d
364, 370 (6th Cir. 2020) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)).
Plaintiffs expert, Lawrence Hunter, "spent 24 years in policing," retiring from the
Waterbury, Connecticut Police Department at the rank of captain. (Doc. 65-1 at PAGEID 2812).
He holds a Ph.D. in leadership with a concentration in criminal justice and a master's degree in
forensic psychology. (Id. at PAGEID 2813).4 He previously commanded the Professional
Standards Unit in Waterbury, which included "Internal Affairs, Inspectional Services, and
Training Divisions." (Id.). His duties in that role included "reviewing and investigating Use of
Force reports (Response to Resistance)" and investigating citizen complaints of officers' use of
excessive force. (Id.). Dr. Hunter was retained as an expert in the use of force to evaluate the
defendant officers' use oflethal force in this case. (Doc. 65-6 at PAGEID 2882).
On the record as it stands, the Court is unwilling to deem Dr. Hunter "unqualified" to
evaluate a police use of force.5 Employing a liberal view of Dr. Hunter's education and
4
On the record before the Court, it is difficult to determine whether Dr. Hunter has taken or taught courses relevant
to the issues in this case. He listed in his report some classes he has taken and that he is "Force Science certified."
(Doc. 65-1 at PAGEID 2813; see also Doc. 47-3, Doc. 67-3). However, he testified at deposition that he did not
examine the physics or mechanics of the shooting in this case, and he "wasn't looking at it as a [force] scientist.
[He] was looking at it as an expert in police practices and what practices should be employed when doing
something." (Doc. 65-6 at PAGEID 2870-71).
5
Defendants contend that Dr. Hunter does not adequately connect his knowledge and experience to his approach to
this case. (Doc. 72 at PAGEID 3079). Specifically, Dr. Hunter has testified as an expert in only two cases-once to
a Labor Board regarding a police officer's termination and once regarding domestic violence in a marriage
dissolution. (Doc. 65-6 at PAGEID 2876-77). Although he reviewed Wyoming, Ohio's use of force policy, Dr.
Hunter has never investigated an officer-involved shooting. (Id. at PAGEID 2877, 2879). He has never processed a
homicide scene nor a scene involving an officer-involved shooting. (Id at PAGEID 2880). Dr. Hunter's lack of
training or experience in officer-involved shootings, however, is a topic for cross-examination rather than a basis for
disqualifying him as an opinion witness.
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experience investigating police uses of force, he likely possesses sufficient knowledge and
experience to satisfy Rule 702's requirement.
B. Assistance to the Trier of Fact
One of the core inquiries in determining expert admissibility is whether the expert's
testimony will help the trier of fact understand the evidence or determine a fact at issue. In re
Scrap Metal Antitrust Litig., 527 F.3d at 529; Fed. R. Evid. 702(a). "Although the Sixth Circuit
has not ruled explicitly in this regard, other courts have held that when cases involve review of
videotaped events, an expert's opinion should not be permitted when the expert is no better
suited than the jury to interpret the video's contents." Estate of Collins v. Wilburn, 253 F. Supp.
3d 989,992 (E.D. Ky. 2017) (citing Dunlap v. Hood, 2009 WL 362292, at *1 (N.D. Tex. 2009)).
See In re FCA US LLC, MDL No. 2744, 2022 WL 17652686, at *4 (E.D. Mich. Dec. 13, 2022)
("[C)ourts have limited the testimony to merely explaining the process used to extract and
enhance images, while disallowing any opinion testimony about what the images depict,
especially where jurors are equally able to view the images and assess what is depicted."); Slack
v. City of San Antonio, No. SA-18-cv-01117, 2021 WL 1390428, at *3-4 (W.D. Tex. Apr. 13,
2021) (excluding forensic video expert from testifying as to what a video depicts because "such
testimony does nothing to assist the jurors, who can make their own determination as to whether
the video is consistent with or contradicts the various parties' account of the events leading up to
and during the police shooting"); Grover v. BMW ofN Am., LLC, No. 1:19-cv-12, 2022 WL
205249, at *5 (N.D. Ohio Jan. 24, 2022) (favorably quoting Estate of Collins, 253 F. Supp. 3d at
992)). See also United States v. Glenn, 146 F.4th 485, 491 (6th Cir. 2025) (finding that trial
court should have excluded expert testimony from law enforcement Special Agent because "the
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jury was just as competent as Agent Almonte to interpret the common words and phrases used in
these text messages") (quoting United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013) ("A
witness, lay or expert, may not form conclusions for a jury that they are competent to reach on
their own.")).
In Estate of Collins, the plaintiffs-whose decedent died as a result of alleged police
excessive force-sought to admit the report of expert witness Dr. George Kirkham, a former
police officer6 and Criminology Professor Emeritus at Florida State University. 253 F. Supp. 3d
at 991. Dr. Kirkham's report concluded that the officers in that case violated established law
enforcement standards and proximately caused the preventable harm the plaintiffs' decedent
suffered. Id. at 992. He sought to testify that "failure to comply with established procedures led
to the use of force and that the force was unreasonable and excessive." Id. (comma omitted).
The incident at issue there had been captured on video, and neither party challenged the video
recording's validity. Id The court in that case granted defendants' motion to exclude Dr.
Kirkham's testimony, finding that:
Rule 702's "helpfulness" standard requires a valid connection to the pertinent
inquiry as a precondition to admissibility. Likewise, credibility determinations fall
within the province of the jury. In this case, there is little need for Plaintiffs expert
to tell the jury whether the officers' actions were objectively reasonable under the
circumstances because a video captures the incident. Dr. Kirkham's testimony will
not be of any assistance to the jury in determining whether or not excessive force
was used. As such, it does not satisfy the requirements of FRE 702.
Id. (internal citations and quotation marks excluded).
6 Report of George L. Kirkham, Estate of Collins v. Wilburn, 253 F. Supp. 3d 989,992 (E.D. Ky. 2017) (No. 16-cv-
00068), 2016 WL 9233670.
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In this case, Dr. Hunter's "analysis" of each officer's actions consisted solely of his
narration of the video's contents. (Doc. 65-1 at PAGEID 2823-34). Indeed, Dr. Hunter isolated
thirteen still photos from the video and "explains" what each image "shows." (Id.).
Following the narration of the video, Dr. Hunter reviewed a recorded statement Officer
Jones provided to investigators and speculates as to what Officer Jones "meant" in his statement
or "believed" as the shooting unfolded. (Doc. 65-1 at PAGEID 2834-35). For example, Dr.
Hunter opined:
At 13:48, OFC Jones stated that while the van was egressing from the rear, he
(Jones) was "in a pretty okay spot." Meaning that he believed he would not have
been struck by the minivan. At 13:55, OFC Jones states that he saw the minivan
cut the comer. In other words, the minivan turned toward the street, attempting to
flee from officers·rather than strike them. This indicates that he believed that the
operator was trying to escape and not cause any harm to him or his partner standing
to the right.
(Id. at PAGEID 2835).
Dr. Hunter is no better suited than the fact finder to watch the videos or observe Officer
Jones' recorded statement. Indeed, Dr. Hunter's law enforcement experience and education does
not qualify him to speculate what Officer Jones "believed" at any time during the events leading
up to the shooting or to explain the meaning of Officer Jones' statement. A juror is just as
competent as Dr. Hunter to interpret common and ordinary English language. See United States
v. Glenn, 146 F.4th at 491. Therefore, Dr. Hunter's analysis fails to assist the trier of fact. In
addition, any probative value it may have is substantially outweighed by the danger of confusing
the issues, misleading the fact finder, or simply wasting time, and it should be excluded pursuant
to Federal Rule of Evidence 403.
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C. Reliability
"As for reliability, Rule 702 only allows an expert to testify when the opinion is (1)
'based on sufficient facts or data,' (2) 'the product ofreliable principles and methods,' and (3) 'a
reliable application' of those 'principles and methods to the facts of the case."' Baker, 141 F.4th
at 766 (quoting Fed. R. Evid. 702(b)-(d)). "The task for the district court in deciding whether an
expert's opinion is reliable is not to determine whether it is correct, but rather to determine
whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation." In re
Onglyza, 93 F.4th at 346 (quoting In re Scrap Metal Antitrust Litig., 527 F.3d at 529-30).
"District courts evaluating the reliability of expert testimony based on the expert's personal
knowledge or experience, may forgo the Daubert factors, 7 and instead focus on whether the
expert's testimony 'explain[s] how that experience leads to the conclusion reached ... and how
that experience is reliably applied to the facts." Cook v. Erie Ins. Co., 478 F. Supp. 3d 658, 662
(S.D. Ohio 2020) (quoting Thomas v. City of Chattanooga, 398 F.3d 426,432 (6th Cir. 2005))
(footnote added). When evaluating non-scientific opinion testimony, trial courts enjoy
considerable leeway in determining reliability. Id. at 666 (citing Tamraz v. Lincoln Elec. Co.,
620 F.3d 665, 671-72 (6th Cir. 2010)).
In this case, plaintiffs have failed to establish that Dr. Hunter's opinions are either the
product of reliable methods or a reliable application of those methods to the facts of this case.
First, Dr. Hunter's report lacks a reliable foundation. Dr. Hunter outlined the basis of his report
as follows:
7As to reliability, courts evaluating expert scientific evidence are guided by four inquiries:
(I) whether the
technique is testable; (2) whether it has been subjected to peer review; (3) the error rate and whether there are any
standards for lowering it; and (4) whether the technique is generally accepted in the relevant scientific community.
United States v. Gissantaner, 990 F.3d 457,463 (6th Cir. 2021) (quoting Daubert, 509 U.S. at 593-94, 597 (1993)).
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This case involves the use of deadly force by duly sworn police officers. As such
it is necessary to establish the narrow parameters that the US Constitution, courts,
state law, policies, and procedures dictate law enforcers may use force. The force
police officers may use and will be analyzed includes their mere presence and
verbal commands and escalates up to and including the use of deadly force.
(Doc. 65-1 at PAGEID 2814). Dr. Hunter bases much of his report on legal standards that, even
if accurately summarized, do not apply in this case. Dr. Hunter's report is based on, at varying
times, "law enforcement takeaways and training" from three United States Supreme Court cases
(Doc. 65-1 at PAGEID 2815-18), sections of the Wyoming, Ohio Police Department policies and
procedures manual (id. at PAGEID 2818-19, 2821-22), a non-binding "National Consensus
Policy and Discussion Paper on the Use of Force" (which Dr. Hunter admits "is at odds with" the
Wyoming police manual) (id. at PAGEID 2819-20, 2822), the mission statement from the
Wyoming Police Department's website (id. at PAGEID 2820), a paper published by the Police
Executive Research Forum ("PERF") entitled "Critical Issues in Policing Series: Guiding
Principles on Use of Force" (id. at PAGEID 2821), and a "use of force continuum" recognized
by the National Institute of Justice (id. at PAGEID 2822-23).
Based on these varying sources, Dr. Hunter reached approximately three pages of
"findings," including: (1) "In connection with the above consensus of the policymakers and
police executives from multiple law enforcement disciplines and organizations, the officers
failed to take the necessary steps to preserve life, as their department mission statement declares"
(Doc. 65-1 at PAGEID 2835); (2) "It is my expert opinion that Officers [sic] Drew Jones and
Officer Jordan Batts used force in excess of best practices and national standards" (id. at
PAGEID 2836); (3) "All three officers could have used more wisdom in de-escalation
techniques" (id.); (4) "Officers should have recognized that Joe Jr's first instinct was to evade
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capture"; (id. at PAGEID 2837); (5) "It is possible that Joe Jr blew his horn to warn officers to
move out of the way" (id.); (6) Officer Batts "turning around to confront the situation was not the
best decision, nor was it in line with de-escalation philosophy" (id.); (7) Crime scene photos
"indicate that the minivan was already veering toward the asphalt escape route" (id.); and (8)
"The killing of Joe Jr is what the WPD mission statement and PERF's guides on the use of force
stand against" (id.).
In this case, plaintiffs allege the defendant officers violated Joe Frasure, Jr.'s Fourth
Amendment right to be free from excessive force during arrest. (Doc. 52). Fourth Amendment
claims require a determination of whether the force used was objectively reasonable under the
totality of the circumstances. Barnes v. Felix, 605 U.S. 73, 145 S.Ct. 1353, 1357-58 (2025).
"The 'reasonableness' of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v.
Connor, 490 U.S. 386, 396 (1989). Fourth Amendment reasonableness does not require "only
the best technique available at the time." Ashford v. Raby, 951 F.3d 798, 801 (6th Cir. 2020)
(citing Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996) (The "Fourth Amendment
does not require officers to use the best technique available as long as their method is reasonable
under the circumstances")).
Dr. Hunter's application of various legal and other standards in this case undermines the
reliability of his report. For example, Dr. Hunter notes:
Officers Jones and Batts had their weapons drawn before seeing any potential
problem or the need for deadly force. To be sure, it is not an uncommon tactic for
officers to pull their weapons in a possible burglary situation. However, with
hindsight, we know that officers were responding to a suspicious person's call.
Officers responding with their weapons at the ready seems excessive, especially in
today's law enforcement climate....
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(Doc. 65-1 at PAGEID 2836 (emphasis added)). Dr. Hunter's use of "hindsight" in evaluating
the reasonableness of the officers' actions is contrary to controlling precedent, Graham, 490 U.S.
at 396, and irrelevant to evaluating an officer's use of force.
Dr. Hunter also repeatedly analyzes the officers' actions in accordance with "best
practices" and "better" alternative approaches. (Doc. 65-1 at PAGEID 2836: "A better approach
may have been to get to the backyard, slowly round the comer, and assess the situation with their
hand on their holstered weapons."; Doc. 65-1 at PAGEID 2836: "A better approach may have
been to hold their ground, slowly walk toward the vehicle, or seek cover if they feared the
occupant(s) would suddenly exit the vehicle with weapons."; Doc. 65-1 at PAGEID 2837: "OFC
Batts could have kept running down the slight hill to safety ........ His turning around to confront
the situation was not the best decision, nor was it in line with de-escalation philosophy."; Doc.
65-1 at PAGEID 2837: "Best practice suggestions from professional organizations indicate that
police officers do not fire their weapons into or at moving vehicles unless the operator
deliberately intends to strike the officer or another person."). But the failure to use "best" or
"better" practices does not establish that a constitutional violation has occurred. "The Fourth
Amendment ... does not require police officers to take the better approach[,] ....... only that they
take a reasonable approach." Roell v. Hamilton Cty., Ohio, 870 F.3d 471,486 (6th Cir. 2017)
(quoting Cook v. Bastin, 590 F. App'x 523, 528 (6th Cir. 2014)). "[E]xpert testimony, which
essentially opines on the best approach that the deputies could have taken in ideal circumstances,
... does not establish that the [officers] violated [the suspect's] clearly established rights."
Roell, 870 F.3d at 486.
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Dr. Hunter also opines, "All three officers could have used more wisdom in de-escalation
techniques." (Doc. 65-1 at PAGEID 2836). Officers, however, are not "prohibited from using
any physical force against [a suspect] before first attempting alternative de-escalation
techniques." Roell, 870 F.3d at 482 (citing Cook, 590 F. App'x at 530).
Dr. Hunter also failed to recognize or address the applicable legal standard for an
officer's use of deadly force against the driver of a motor vehicle. See Raimey v. City of Niles,
77 F.4th 441, 449 (6th Cir. 2023) ("Deadly force is justified against a driver who objectively
appears ready to drive into an officer or bystander with his car, but generally not once the car
moves away, leaving the officer and bystanders in a position of safety, unless the officer's prior
interactions with the driver suggest that the driver will continue to endanger others with his car.")
(internal quotation marks omitted) (quoting Laitit v. Phillips, 878 F.3d 541, 548 (6th Cir. 2017)).
Dr. Hunter's use of standards that are clearly inapplicable to the questions in this case render his
opinions unreliable. Furthermore, because Dr. Hunter uses standards that do not apply to the
issue of excessive use of force, the report's probative value is substantially outweighed by a
danger of confusing the issues and should be excluded under Federal Rule of Evidence 403.
As to methodology, "Courts have repeatedly found opinions unreliable when they were
based more on an expert's 'subjective belief than on an objective method that can be tested."
Madej, 951 F.3d at 375. Simply put, "[e]xpert reports must include 'how' and 'why' the expert
reached a particular result, not merely the expert's conclusory opinions." R.C. Olmstead, Inc. v.
CU Interface, LLC, 606 F.3d 262,271 (6th Cir. 2010) (quoting Salgado v. Gen Motors Corp.,
150 F.3d 735, 742 n.6 (7th Cir. 1998)). The opinions must "outline a line ofreasoning arising
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from a logical foundation." Id. (quoting Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d
655, 657 (6th Cir. 2005)).
Dr. Hunter's report fails to do so. First, his report reveals no discernible methodology.
(Doc. 65-1). He makes no effort to explain how he reached his conclusions. Indeed, when
deposed about his methods, Dr. Hunter testified:
I looked at case law and I looked at best practices and just made a decision as to
whether the actions that I was able to see were in line with that. Did I go out there
and take measurements? If that's what you mean by scientific, I didn't take
measurements or anything like that.
(Doc. 65-6 at PAGEID 2869-70). For example, Dr. Hunter concluded: "At no time was
Warmack or Jones in danger of being struck. In my opinion, Batts and all officers could have or
should have moved out of the way and stayed on the side of the vehicle." (Doc. 65-1 at PAGEID
2837). However, Dr. Hunter provided no explanation for this conclusion. He admittedly took no
measurements and made no mathematical calculations involving the speed at which the vehicle
was travelling, the relative positions of the officers, or whether the officers had the time and
space to evade the moving vehicle.
Second, some of Dr. Hunter's "findings" are nothing more than obvious speculation. For
example, Dr. Hunter found that "Joe Jr's first instinct was to evade capture," "[i]t is possible that
Joe[,] Jr[.] blew his horn to warn officers to move out of the way," and Joe, Jr. was not
"deliberately intend[ing]" to strike the officers. (Doc. 65-1 at PAGEID 2837). Dr. Hunter
provided no basis for knowing the deceased's instincts or intentions.
In sum, plaintiffs have failed to establish that Dr. Hunter's opinions are either the product
of reliable methods or a reliable application of those methods to the facts of this case.
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Accordingly, his report should be excluded from consideration during both summary judgment
and trial.
IV.
CONCLUSION
Because plaintiffs failed to comply with Rule 26(a)(2)(B), because Dr. Hunter's report is
neither helpful to the trier of fact nor the product of reliable methods, and because any probative
value of the report is substantially outweighed by its danger of confusing the issues and
misleading the fact finder, defendants' Daubert motion and motion in limine regarding plaintiff's
purported expert witness, Lawrence Hunter (Doc. 65), is GRANTED. Dr. Hunter's report is
excluded from consideration during summary judgment and trial.
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Date: 9/17/2025
United States Magistrate Judge
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.