RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SABRINA JORDAN, as the Administrator and o/b/o the ┐
Estate of Jamarco Dewayne McShann, │
Plaintiff-Appellant, │
> No. 20-3274
│
v. │
│
│
JOHN S. HOWARD; JERRY KNIGHT; BRIAN O’NEAL; │
MICHAEL CORNELY, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:18-cv-00082—Thomas M. Rose, District Judge.
Argued: December 4, 2020
Decided and Filed: February 3, 2021
Before: SILER, CLAY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Alxis Rodis, Dwayne D. Sam, WILLIAM & MARY APPELLATE AND
SUPREME COURT CLINIC, Williamsburg, Virginia, for Appellant. Kelly M. Schroeder,
FREUND, FREEZE & ARNOLD, Dayton, Ohio, for Appellees. ON BRIEF: Alxis Rodis,
Dwayne D. Sam, WILLIAM & MARY APPELLATE AND SUPREME COURT CLINIC,
Williamsburg, Virginia, Sarah Gelsomino, Jacqueline Greene, FRIEDMAN & GILBERT,
Cleveland, Ohio, for Appellant. Kelly M. Schroeder, Bryan J. Mahoney, FREUND, FREEZE &
ARNOLD, Dayton, Ohio, Kimberly A. Rutowski, LAZARUS & LEWIS, LLC, Cincinnati, Ohio,
for Appellees.
GRIFFIN, J., delivered the opinion of the court in which SILER, J., joined. CLAY, J.
(pp. 15–26), delivered a separate dissenting opinion.
No. 20-3274 Jordan v. Howard, et al. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
During the early morning hours of October 20, 2017, Jamarco McShann was asleep in the
driver’s seat of a locked, running car with his right hand resting on a pistol in his lap and music
blaring from the car stereo. Just seconds after police officers roused him from his slumber,
McShann stopped complying with their orders that he keep his hands up and away from the gun.
He instead reached down, grabbed the gun, and swung it towards the driver-side door, where two
officers were positioned. Fearing for their safety and that of their fellow officers, Officers Jerry
Knight and John Howard opened fire, shooting and killing McShann. The district court
concluded their use of deadly force was reasonable and therefore granted summary judgment in
their favor on excessive force claims brought by McShann’s estate. We affirm.
I.
A.
While working third-shift patrol on October 20, 2017, defendant Jerry Knight, a police
officer with the Moraine Police Department, responded to a noise complaint coming from a
vehicle at the Valley View Apartment Complex in Moraine, Ohio. Two other officers,
defendants John Howard and Michael Cornely, also chimed in over radio to let Knight know that
they would respond to provide backup.
Knight was the first to arrive, so he set out to find the source of the noise complaint. He
spotted one vehicle emitting exhaust and realized that music was coming from the car stereo.
Knight approached and saw a man later identified as Jamarco McShann asleep, reclined in the
driver’s seat with his left hand behind his head. Knight noticed that McShann was resting his
right hand on a handgun with an extended magazine on his right thigh. Knight retreated and
regrouped with Officer Cornely, who had just arrived at the scene and parked his squad car
behind McShann’s car. Officer Howard soon joined the pair, and the trio discussed how they
No. 20-3274 Jordan v. Howard, et al. Page 3
would safely wake McShann to resolve the noise complaint. The officers also ran the vehicle’s
plates and determined that it was registered to a woman who lived in the Valley View complex.
The officers then attempted to find the woman at her apartment but were unsuccessful.
By now, it was approaching 5:30 A.M., and the officers were worried about resolving the
situation before other apartment residents began going about their daily business. They devised
a plan to approach the vehicle and requested additional officers respond to the scene with a
ballistics shield as an additional safety precaution. Officer Brian O’Neal and Detective Justin
Eller arrived on the scene with the requested ballistics shield about ten minutes later.
Collectively, the officers decided that Knight would approach the driver-side door to
make contact with McShann and that O’Neal would use the ballistic shield to provide cover to
Knight. Howard would be positioned at the rear of the vehicle with a shotgun to provide cover.
Cornely approached the passenger-side of the vehicle to provide additional light and cover.
Detective Eller stayed back by the patrol car to watch the backs of the four officers. Up to this
point, there is no real dispute about what occurred. From here on, we shift to retelling the
officers’ individual accounts to provide a full picture of the crucial moments that left McShann
gravely injured.
Officer Knight, accompanied by O’Neal, approached the vehicle and attempted to wake
McShann by rapping his heavy flashlight against the glass of the driver-door window. Knight
observed that McShann’s position had not changed; his left hand remained behind his head and
his right hand was resting on the gun, on his right thigh. The gun was laying flat with the muzzle
facing the driver-side door. After five or ten seconds of Knight banging the flashlight against the
window, McShann woke and Knight recalled that he moved his left hand from behind his head
and took his right hand off the gun. While the officers shouted “show me your hands,” Knight
says that McShann sat up and looked around at the officers on each side of the car, slightly
twisting his body back and forth twice to scan the area with his hands raised. But then, Knight
asserts, McShann reached back down to pick up the gun. Knight saw McShann raise the gun “in
[his] direction,” but that he wasn’t sure the muzzle “ever actually specifically pointed” at him.
When Knight saw McShann pick up and swing the gun in his direction, he “started shooting [his]
firearm and backpedaling” in tandem with O’Neal. While Knight tried to keep his eyes on
No. 20-3274 Jordan v. Howard, et al. Page 4
McShann’s hands as he backed away from the vehicle, glass from the vehicle was shattering and
his muzzle was flashing in front of him with each shot, so he could not keep his eyes on
McShann’s gun the entire time. Knight testified that he shot until the threat was eliminated—
when he realized that McShann was no longer facing towards the driver-side window but was
instead facing forward, and the gun was no longer in his hand. At that point, Knight knew
McShann had been shot.
Officer O’Neal carried the ballistics shield to the driver-side door to provide cover for
Knight. He testified that he had “eyes on” McShann from the approach until the time McShann
was shot. O’Neal testified that when McShann was roused from his slumber, he sat up and
looked at the officers outside the car from left-to-right, and then again from left-to-right. He
recalled that McShann’s right arm “stayed down by the weapon” during the “scans.” But once
McShann completed the second scan, O’Neal says that McShann “looked back at Jerry Knight
and [O’Neal’s] position, grabbed his weapon[,] and swung it up towards [O’Neal].” While
Officer O’Neal had his weapon drawn, he did not shoot because he heard Knight’s shot and was
worried about getting in Knight’s line of fire. Once Knight began shooting, O’Neal retreated
with him, continuing to provide cover with the ballistic shield.
Officer Cornely observed from the passenger-side of the vehicle as Knight woke
McShann. He remembered that the officers immediately began identifying themselves and
instructing McShann to keep his hands up and away from the gun. Cornely stated that when
McShann woke, he raised his left hand with his palm exposed, but that he lifted his right hand
only partially up, off the gun—“just hovering above the pistol”—and that he would not “bring it
the rest of the way up.” Then, Cornely testified that with his hand hovering over the gun,
McShann “started scanning, looking side to side in the vehicle.” After two or three looks back-
and-forth of the officers on both sides of the car, Cornely claims that McShann began “to turn his
head back toward the driver’s side of the car,” and “reache[d] down and pick[ed] the gun up with
the muzzle pointed at the driver’s side door.” Although the barrel of the gun had always been
positioned roughly in the direction of the driver-side door, Cornely testified that it had been
resting at an angle towards the driver’s mirror, but once McShann grabbed it, “he swung the
muzzle straight to the left[,] right at the driver’s side door where [Knight and O’Neal] were
No. 20-3274 Jordan v. Howard, et al. Page 5
standing.” Cornely did not fire his service weapon and “started backing away [from the car],”
because he was concerned that the “officers on [the other] side of the car were probably going to
open fire.” He explained that because McShann was seated in the driver’s seat, it would have
been a harder and more perilous shot for him to make across the car from the passenger side of
the vehicle, and he “would have endangered [his] guys on the other side of the car” by shooting.
Officer Howard, positioned at the rear of the vehicle, testified that he saw McShann wake
up and move his hands to “mid range,” meaning that they were neither in his lap, nor fully
extended in the air, which Howard found “encouraging.” He observed that McShann slowly
“scanned” the vehicle and the surrounding officers two or three times. Then, Howard said that
he saw McShann’s “hand reaching for the gun,” and “grabb[ing] the gun with his right hand.”
Once Howard saw McShann reach for the gun, he perceived a deadly threat to himself and his
fellow officers, so he “shifted [his] attention” from the gun “to . . . the left a little to center mass
and [he] pulled the trigger.” Unlike Knight, O’Neal, and Cornely, Howard testified that he did
not know if McShann had ever pointed the gun at Knight and O’Neal because he “stopped
focusing on the gun” once McShann reached down and grabbed it.
Once the shooting stopped, the officers called for backup and medical assistance. Knight
reached through the broken window of driver’s side rear passenger door and “kind of crawled
through the back a little bit up over [McShann’s] left shoulder,” to unlock McShann’s door.
Knight and O’Neal pulled McShann onto a grassy area nearby to begin first aid and applied
pressure to McShann’s bullet wounds to slow the bleeding until paramedics arrived.
Tragically, McShann died as a result of his injuries. The medical examiner’s autopsy
concluded that he was struck by at least six gun shots. Knight shot his pistol eight times and
struck McShann at least four times—twice in his right arm, once in his right hand, and once in
his upper left arm. Howard’s two shots struck McShann in the middle of his back and in his
right arm and right torso.
Jeremy Bauer, Ph.D., a certified accident reconstructionist and expert on biomechanics,
was retained by plaintiff to prepare an expert report. His report summarized the forensic
evidence relating to the shooting, the autopsy results, and testimony from the defendants. After
No. 20-3274 Jordan v. Howard, et al. Page 6
reviewing the evidence, he declared that “[b]ased on [his] review of the case and analysis of this
case and on [his] background, education and training in the fields [of] anatomy, physics, injury
biomechanics, forensic photography[,] and shooting incident reconstruction,” he could conclude
to “a reasonable degree of scientific and biomechanical certainty, that Mr. McShann’s right hand
was raised in front of him, near shoulder level when he was shot in the base of the right thumb.”
Bauer further reasoned that “[t]he lack of damage to the gun provides clear evidence that Mr.
McShann was not holding the gun when he was shot in the hand.” Bauer offered no other
opinions in his expert report.
B.
Plaintiff Sabrina Jordan, as the administrator and personal representative of McShann’s
estate, filed suit against the officers in March 2018. She pleaded a claim under 42 U.S.C. § 1983
for excessive force in violation of the Fourth Amendment’s prohibition on unreasonable seizures
and related state-law tort claims for wrongful death, civil conspiracy, and assault and battery.
When discovery closed, defendants moved for summary judgment on plaintiff’s § 1983 claim
and urged the court to decline supplemental jurisdiction over the state-law claims.
The district court granted the motion and entered judgment in favor of the defendants on
the basis of qualified immunity. It concluded that even accepting the facts set forth in Bauer’s
report, the officers acted reasonably because there was no disputing that “McShann was pointing
a gun at Knight at the time he was shot.” And it alternatively concluded that Bauer’s report was
not sufficiently reliable under the Daubert v. Merrell Dow Pharmaceuticals standard for expert
testimony. See 509 U.S. 579 (1993). Finally, the district court declined supplemental
jurisdiction over the state-law claims and entered judgment in favor of the defendants. 1 Plaintiff
timely appealed.
1While plaintiff originally named Detective Eller as a defendant, she voluntarily dismissed her claims
against him prior to the motion for summary judgment. She also disavowed her claims against Officer O’Neal in
her response to the motion for summary judgment and indicated that she would pursue only her state-law claims
against Officer Cornely. Accordingly, the only claims presented for review are the excessive force claims against
Knight and Howard.
No. 20-3274 Jordan v. Howard, et al. Page 7
II.
We review the district court’s summary judgment determination de novo. Thomas M.
Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014). Summary
judgment is appropriate only if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
factual issue is genuinely in dispute if a reasonable factfinder could resolve it either
way. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If a disputed issue of fact
is material to liability, premature entry of summary judgment inappropriately supplants the role
of the factfinder in adjudicating liability. See id. at 248–49. Denial of summary judgment where
there is no genuine dispute of material fact, on the other hand, improperly permits a claim to go
to the factfinder even though there can be only one possible outcome. See Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986); Anderson, 477 U.S. at 250–52. In determining “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law,” the court must view the evidence and
draw all reasonable inferences in favor of the nonmoving party. Anderson, 477 U.S. at 251–55.
“The mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 281 (6th Cir.
2012) (internal quotation marks omitted).
III.
A.
Resolution of this case requires only application of our well-established summary
judgment standards to the law governing the use of force by police officers.
The parties agree that the federal right at issue here is the right to be free from excessive
force during a seizure, which is secured by the Fourth Amendment. See U.S. Const. amend.
IV. It is undisputed that Officers Knight and Howard “seized” McShann by shooting him,
thereby triggering the Fourth Amendment’s “reasonableness” requirement. See Tennessee v.
Garner, 471 U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use of
No. 20-3274 Jordan v. Howard, et al. Page 8
deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”).
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the
Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation and some internal quotation
marks omitted). In Garner, the Supreme Court held that the reasonableness of using deadly
force to subdue a suspect depends upon whether “the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to the officer or to others.” 471 U.S. at
11.
This objective test requires courts to judge the use of force from the perspective of a
reasonable officer on the scene, “in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. While there
are three factors to be considered, we are primarily focused on the second factor—whether the
suspect poses an immediate threat to the safety of the officers or others. Id. at 396; see also
Garner, 471 U.S. at 8–9. This is because an officer’s use of deadly force is objectively
reasonable if “the officer has probable cause to believe that the suspect poses
a threat of serious physical harm, either to the officer or to others.” Garner, 471 U.S. at 11.
Additionally, our approach requires that we “evaluate the use of force by focusing on the split-
second judgment made immediately before the officer used allegedly excessive force, not on the
poor planning or bad tactics that might have created the circumstances that led to the use of
force.” Reich v. City of Elizabethtown, 945 F.3d 968, 978 (6th Cir. 2019) (internal quotation
marks omitted).
The record here demonstrates the defendant officers’ use of deadly force was objectively
reasonable. Three of the four officers surrounding McShann’s vehicle testified that when
McShann woke, he was compliant or mostly compliant with their order that he put his hands up.
(Officer O’Neal testified that he was not sure whether McShann put his hands up.) But then,
after looking back and forth at the officers surrounding the vehicle for a few seconds, all four
officers testified that McShann grabbed his gun. At this point, Officer Howard perceived a
serious and deadly threat to himself and his fellow officers and took aim at McShann’s “center
No. 20-3274 Jordan v. Howard, et al. Page 9
mass”—necessarily taking his vision away from the gun itself. While that process was playing
out, the other three officers agree that McShann “swung” the gun towards Officer Knight at the
driver-side window. Officer Knight testified that he feared for his safety once McShann swung
the gun towards him. At that point, both Officers Knight and Howard used deadly force.
Given these unrebutted facts, we conclude that both Officers Howard and Knight acted
reasonably to stop a serious threat of deadly force, and the district court correctly granted them
qualified immunity. In other words, when an initially compliant suspect stops following officer
commands and instead grabs a readily accessible firearm, an officer “need not wait for [the]
suspect to open fire on him . . . before the officer may fire back.” Greathouse v. Couch, 433 F.
App’x 370, 373 (6th Cir. 2011); cf. Mullins v. Cyranek, 805 F.3d 760, 768 (6th Cir. 2015)
(affirming grant of qualified immunity where officer used deadly force in response to a suspect
pulling out a previously concealed weapon and throwing it over the officer’s shoulder, because
the suspect earlier “had his finger on the trigger of a gun, and at that time, he posed a serious
threat to [the officer] and the general public”); id. (“This is not a case where a jury could
conclude that [the police officer] was not in any danger in the first place.” (internal quotation
marks, brackets, and citation omitted)).
B.
Plaintiff’s arguments to the contrary focus on alleged inconsistencies between the
officers’ testimony. Based on the officers’ supposed lack of credibility, and the conclusions of
her expert witness, plaintiff claims that there are one or more genuine disputes of material fact
that precluded summary judgment in favor of the officers. Her arguments are not meritorious.
First, we do not agree that the Bauer report creates a genuine issue of material fact
regarding whether McShann was holding the pistol at the time the officers decided to use deadly
force shooting—the pivotal issue in this case.2 Remember, Bauer opined only that McShann’s
2We recognize that even if it was reasonable for the officers to open fire, “that does not automatically clear
the entire encounter of the Constitution’s prohibition against the use of excessive force.” Hood v. City of Columbus,
827 F. App’x 464, 469 (6th Cir. 2020). Here, however, plaintiff’s argument hinges on whether the use of deadly
force was justified from the outset, which means that we do not need to apply a segmented analysis to each of the
shots fired by Knight and Howard.
No. 20-3274 Jordan v. Howard, et al. Page 10
right hand was raised in front of him at the time he was shot in the hand, and that the “lack of
damage to the gun” provides “clear evidence that Mr. McShann was not holding the gun when he
was shot in the hand.” Plaintiff suggests that the Bauer report creates a material factual dispute
for trial because, in her view, a reasonable juror could conclude from it that McShann was not
holding his gun at the time the officers began firing—meaning that their use of deadly force was
not justified. However, Boyd v. Baeppler forecloses that argument. 215 F.3d 594 (6th Cir.
2000).
In Boyd, we considered whether an analogous expert report created a genuine dispute of
material fact for trial. Officers responding to a “shots fired” call observed a man matching the
description and armed with a gun running toward them. Id. at 597–98. The officers identified
themselves, but the man, later determined to be Adolph Boyd, did not stop, nor did he drop the
gun—despite orders from the officers. Id. at 598. One officer, Baeppler, “fired three to four
rounds,” but Boyd responded by pointing his weapon at the other officer, Wilsman. Id. at 603.
Wilsman fired one round from his shotgun, and Boyd fell forward to the ground. Id. Then,
Boyd allegedly “lifted his torso and turned to point his weapon” again at Wilsman. Id. At that
point, Baeppler fired seven more rounds at Boyd, until he dropped the weapon. Id.
On appeal, we observed that the only “inconsistent evidence” to suggest that Baeppler’s
second use of force was not justified came from the plaintiff’s expert, Dr. Tucker, who opined
that “Boyd might not have been able to turn and point his weapon” after the shotgun blast
knocked him to the ground, thus suggesting that the final seven rounds fired by Officer Baeppler
were an unreasonable use of force. Id. (internal quotation marks omitted). We were not
persuaded:
In sum, Dr. Tucker made assumptions about the sequence of shots and the
pathways of the bullets and concluded, not within a reasonable degree of medical
certainty, but only ‘with probability’ that a more likely scenario was that Boyd
was unable to lift his torso and twist to threaten [O]fficer Wilsman a second time.
Nowhere does Dr. Tucker point to any forensic evidence that proves what shot(s)
rendered Boyd unable to lift and twist his torso, or at what point during the
sequence of events the critical shot(s) hit Boyd.
No. 20-3274 Jordan v. Howard, et al. Page 11
Id. at 603. The court therefore reversed the district court’s denial of qualified immunity because
the “[t]he speculation of plaintiff’s expert [was] not sufficient evidence to create a genuine issue
of material fact.” Id.
This case is Boyd all over again. Bauer, like Dr. Tucker, cannot tell us the sequence of
shots, and his report does not contradict that McShann stopped following officer commands and
picked up the gun in his lap. Instead, his report tells us only that by the time one of Knight’s
eight shots struck McShann’s right hand, there is “clear evidence” that McShann was not holding
the pistol. Boyd instructs that such speculation is not enough to controvert consistent officer
testimony to the contrary and generate a genuine dispute of material fact for trial.3
Second, Jordan’s attempt to supplement this speculation with what she says is
inconsistent testimony by Officer Knight is not persuasive. She claims that Officer “Knight
testified that (i) he maintained a visual on McShann’s hands at all times, (ii) McShann
maintained his posture with his body turned, and the gun pointed in Knight’s direction for the
duration of the shooting, and (iii) Knight never saw McShann drop, throw, or otherwise dispose
of the gun.” Plaintiff theorizes that if this testimony is taken as true, then the Bauer report must
create a genuine dispute of fact for trial because “if the gun remained in McShann’s
hands . . . why didn’t [it] sustain any damage after Knight shot McShann in his right hand?”
But this argument rests on a false premise—one created by Jordan’s distortion of Officer
Knight’s testimony. Knight testified that he “tried” to keep his eyes on McShann’s hands during
the shooting. And despite repeated attempts by plaintiff’s counsel to get Knight to concede that
Knight kept his eyes on McShann’s gun “the entire time,” Knight refused. Instead, he was
insistent he “attempted to” do so, but he was “not a hundred percent” because at the same time
he tried to watch the gun, he was also “backpedaling” to safety and “trying not to trip,” while
dealing with glass shattering “in his face” and muzzle flashes from his weapon obstructing his
vision. Knight also said that he shot until he got behind cover, and “when [he] stopped shooting,
that’s when [he] noticed the gun was no longer in [McShann’s] hand because he had been shot.”
3For this reason, we need not address the district court’s alternative ruling that the Bauer report was based
on improper speculation and could not be properly applied to the facts at issue as Daubert requires.
No. 20-3274 Jordan v. Howard, et al. Page 12
In sum, Knight’s testimony establishes that McShann picked up the gun, but sometime in the
next ten seconds—as Knight struggled to maintain concentration amidst a rapidly developing
scene—McShann dropped or was dispossessed of the gun. There is no contradiction between
this testimony and Bauer’s conclusion that McShann was not holding the gun at the time he was
shot in the hand. And thus, because the unrebutted testimony establishes that McShann
disregarded officer commands, picked up the gun, and pointed it towards Knight, any reasonable
juror would conclude that Knight’s use of deadly force was justified.
Third, Jordan claims that Howard testified that “McShann never moved the gun in front
[of] his body or pointed the gun at the officers” and that Knight and Howard both testified that
they “maintained a visual on McShann’s hands at all times.” From these assertions, she argues
that King v. Taylor, 694 F.3d 650 (6th Cir. 2012), supports the conclusion that a reasonable juror
could “‘find, based upon the forensic evidence, expert testimony, and common sense that
[McShann] did not’ hold or point a gun at the officers just before he was shot.” We disagree.
As a factual matter, these assertions are not borne out by the record. First, as described
above, Knight’s testimony establishes only that he did not keep his eyes on McShann’s gun for
the length of the encounter. Furthermore, Howard’s testimony was that he saw McShann reach
for the gun, and at that point, perceived that McShann presented a serious threat of deadly force
and began taking aim, necessarily diverting his attention from McShann’s hands. Howard was
clear that he did not know whether McShann had swung the gun at Knight or otherwise pointed it
at the officers. As we put it in Presnall v. Huey, “[a]n explained absence of evidence in this
context is not evidence of absence.” 657 F. App’x 508, 512 (6th Cir. 2016). Officer Howard
explained in detail why he did not know whether McShann swung the gun at Knight, and we do
not expect officers to observe and recall facts identically from different vantage points in the
midst of high-stress and fast-moving situations. At best, this supposed conflict pointed out by
plaintiff only “creates ‘metaphysical doubt’” as to the material facts, which is not enough to
counter a motion for summary judgment. Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).
And as a legal matter, King v. Taylor does not command a different result. There, we
reversed a grant of qualified immunity to a police officer who shot and killed a suspect while
No. 20-3274 Jordan v. Howard, et al. Page 13
attempting to execute an arrest warrant at the suspect’s home. 694 F.3d at 653–54. After a
review of the evidence in the light most favorable to the plaintiffs, the King court held that
reasonable jurors could conclude from “the forensic evidence, expert testimony, and common
sense” that the decedent “did not threaten the officers by pointing a gun at them just before he
was shot,” as the officers had claimed. Id. at 662. First, the King court pointed to evidence from
the autopsy which suggested that the bullet trajectory of the only fired shot was markedly
inconsistent with the officers’ testimony that the decedent was standing and pointing a gun and
instead supported “plaintiffs’ theory that King was shot while lying on his couch, not making any
threatening gestures.” Id. at 662–663. Second, the court observed that plaintiffs’ experts also
contradicted the officers’ version of events, because two medical experts opined that based on
where King was shot in the head, he would have immediately lost motor function, in which case,
if the officers’ testimony was true (and King was standing and pointing a gun), the gun should
have ended up on the floor rather than in King’s lap. Based on this evidence, we concluded that
“[w]hat exactly happened just before King was shot [was] a question for the jury” because “both
sides’ theories of what transpired [were] sufficiently supported by evidence in the record.” Id. at
663.
The evidence in this case does not point in multiple directions like it did in King. There
is nothing akin to the bullet trajectory evidence we had there, which blatantly contradicted the
officers’ account that the decedent was standing and pointing a gun at them. And moreover, the
Bauer report is missing the critical evidentiary link to tie his opinion to the relevant legal
question; it sheds no light on the sequence of shots, and thus whether McShann had grabbed the
handgun at the time the police opened fire.
Fourth and finally, we find no merit in plaintiff’s second-guessing of one officer’s
decision to use deadly force (Howard) and another’s decision not to (Cornely). Regarding
Howard, he testified that he perceived a threat of deadly force at the moment McShann reached
for the gun. Plaintiff says this shows Howard acted prematurely because Officer Knight did not
perceive a serious threat of deadly force until McShann pointed the pistol at him. However, the
relevant inquiry is objective, not subjective. Even if Knight and Howard had different subjective
beliefs about when the need to use deadly force arose, the relevant inquiry is whether a
No. 20-3274 Jordan v. Howard, et al. Page 14
reasonable officer in Howard’s shoes would have perceived a serious threat of deadly force at the
time McShann stopped following officer instructions and instead grabbed the pistol in his lap.
And as we have already explained, a reasonable officer in that situation would perceive a serious
threat of deadly force.
Leveraging Cornely’s decision not to shoot, plaintiff says that under Brandenburg v.
Cureton, the reasonableness of the police shooting must go to a jury to “consider why” some
officers did not fire “if it was quite obvious that they were being threatened with imminent
bodily harm.” 882 F.3d 211, 215 (6th Cir. 1989). But that matter involved three officers who, in
close physical proximity, faced the same decision of whether to shoot or not in response to
having a gun pointed at them. Id. at 213. Only one of the three opened fire. Id. We held that
there was sufficient evidence for a trial because expert testimony contradicted the testimony that
Brandenburg was pointing the gun, and “[f]urthermore, the jury might reasonably consider why
the two other officers did not fire shots if it was quite obvious that they were being threatened
with imminent bodily harm.” Id. at 215. That is not what we have here. For one, Cornely faced
a decidedly different situation—McShann never pointed the gun in his direction, and Cornely
was acutely aware that if he fired across the vehicle, he risked hitting either Officer Knight or
O’Neal. Moreover, the officers had planned for Howard to be positioned behind the vehicle with
a shotgun, specifically so that the other officers “probably wouldn’t even need to shoot” because
he “would be able to stop the threat pretty quickly.” Thus, unlike Brandenburg, a reasonable
juror could not conclude from Cornely’s inaction that the use of force by other officers was
objectively unreasonable.
***
“Time and time again, we have rejected Fourth Amendment claims . . . when the officers
used deadly force only after the suspects had aimed their guns at the officers or others.”
Presnall, 657 F. App’x at 512 (collecting cases). The uncontroverted evidence here leads to the
same result.
IV.
For these reasons, we affirm the judgment of the district court.
No. 20-3274 Jordan v. Howard, et al. Page 15
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. Plaintiff Sabrina Jordan’s expert report, in conjunction
with the officers’ testimony and the autopsy report, established a genuine dispute of material fact
regarding whether Jamarco Dewayne McShann held or pointed a firearm at the officers at the
time that the officers shot him. When officers use deadly force against an individual, they are
only entitled to qualified immunity where there is no genuine dispute of material fact that the
officers had probable cause to believe that the individual posed “a threat of serious physical
harm.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). In the present case, there is a genuine
dispute of material fact regarding whether McShann posed a serious threat of physical harm to
the officers: the mere presence of a firearm next to McShann in an open carry state while he was
in a locked vehicle would not pose an immediate threat of safety to the officers—who
surrounded McShann’s vehicle while holding firearms and a ballistic shield.
In view of the conflicting testimony and credibility issues, the district court erred when it
found no genuine dispute of material fact as to whether McShann held or pointed a gun at the
officers and determined that Defendants were entitled to summary judgment based on qualified
immunity. I would reverse the district court’s grant of summary judgment and remand the case
for further proceedings.
BACKGROUND
On the evening of October 20, 2017, Officer Jerry Knight was dispatched to the Valley
View Apartment Complex for a noise complaint involving a vehicle playing loud music. Officer
Knight arrived on the scene about two minutes after the dispatch, and as he got out of his police
cruiser, he heard loud music, which seemed to be coming from between the apartment buildings.
Knight walked over to the parking lot next to the apartments and eventually located the vehicle
playing the music in an adjacent parking lot. When he walked up to the driver’s side of the car
and shined a flashlight into the vehicle, he saw McShann asleep and reclined in the driver’s seat
with his left hand behind his head and his right hand resting on a firearm. McShann had the
No. 20-3274 Jordan v. Howard, et al. Page 16
firearm on his right thigh, with his right hand on the grip area, the muzzle of the firearm facing
southwest towards the driver’s door at a slant, and the magazine facing the passenger side.
As Knight backed away from the vehicle, Officer Michael Cornely arrived at the parking
lot where McShann’s vehicle was parked, and Knight informed him that McShann had a gun in
the car. Officer Knight tried to open the door on the driver’s side, but it was locked. Officer
Cornely radioed in that the officers had encountered a weapon, and, soon after, Officer Howard
arrived on the scene. The officers decided to run the license plate of the car and found that the
plate was registered to a woman who lived in the apartment complex. Cornely tried to make
contact with the vehicle owner by knocking on the door of the registered owner’s apartment, but
no one answered. When Cornely returned to the vehicle, the three officers decided to put stop
sticks between the front and rear tires of the car to prevent McShann from leaving the scene.
Officer Knight then moved his cruiser and shined a spotlight through the front windshield of the
cruiser into McShann’s vehicle.
At this point, it was almost 5:30 AM, and music was still blaring from the car—which
was only interrupted by intermittent phone calls to McShann’s phone. Noting that people living
in the apartments would soon begin coming to their vehicles to go to work or to take their
children to school, Officers Cornely, Knight, and Howard decided that they wanted to make
contact with McShann. Officer Howard contacted dispatch to request that Detective Justin Eller
and Officer Brian O’Neal come to the scene with a ballistic shield to provide protection to the
officers when they approached the vehicle. The plan was that Officer Knight would make
contact with McShann on the driver’s side of the car with Officer O’Neal next to him holding the
ballistic shield, Officer Cornely would approach on the passenger side and shine a flashlight to
illuminate the car, Officer Howard would stand behind the car with a firearm as cover more
towards the driver’s side, and Officer Eller would stand farther behind with a handgun.
Officers Knight, O’Neal, Howard, and Cornely proceeded to approach McShann’s
vehicle, with Knight near the back of O’Neal’s right shoulder and Howard and Cornely close
behind. Once Knight and O’Neal reached the driver’s side of the car, Knight banged on the
driver’s window with a flashlight during a brief break in the music, and Knight noted that the
No. 20-3274 Jordan v. Howard, et al. Page 17
firearm was still resting in the same place on McShann’s right thigh.1 When McShann woke up,
the officers screamed, “police,” “keep your hands up in the air, and “show me your hands,” and
McShann sat up in his seat. (R. 15, Knight Dep. at PageID # 90.) Knight and Howard testified
that McShann put both his hands up with palms facing forward, while Cornely testified that
McShann put his left hand up and had his right hand hovering above the firearm. McShann then
rotated twice between turning left to look at Knight and O’Neal and turning right to look at
Cornely, while the officers were still yelling commands at him. As he turned to look back at
Knight and O’Neal, Knight and Cornely testified that McShann picked up the gun and pointed it
in the direction of the driver’s side window, although Howard did not see this.2
After seeing McShann pick up the gun, Knight began shooting his firearm at the vehicle
and backpedaling with Officer O’Neal until they were behind the car to the left of McShann’s
vehicle, at which point Knight yelled “shots fired.” (R. 15, Knight Dep. at PageID # 93.)
Officer Howard also fired two shots from his twelve-gauge shotgun into the center of McShann’s
torso. Although the order of gunshots is unclear, Officer Cornely testified that he heard Knight
shoot two handgun rounds before hearing Howard fire his shotgun, and he backed out of the way
to get out of their line of fire.
After he stopped shooting, Knight noticed that McShann no longer had the gun on his lap
after having been shot; Howard similarly noticed that McShann appeared incapacitated after
being shot. Officer Cornely called for more officers to be sent to the scene, and Detective Eller
called for a medic. Officer Knight opened up the driver’s side passenger door, crawled into the
car, and went over McShann’s left shoulder to unlock the driver’s seat door. Officers Knight and
O’Neal proceeded to pull McShann out of the car and lay him down in the sidewalk area nearby
to begin performing First Aid until the medics arrived. McShann had sustained several gunshot
wounds on his neck, wrist, arm, and back, which ultimately killed him.
1Cornelytestified to seeing the muzzle of the gun pointed northwest towards the driver’s side mirror as
opposed to southwest towards the driver’s side door.
2Inhis deposition, Cornely said that the firearm was “pointed directly at the door,” whereas Knight testified
that McShann was pointing the firearm in his direction. (R. 17, Cornely Dep. at PageID # 308; R. 15, Knight Dep.
at PageID # 91.) Howard saw McShann grab the gun but did not see him point the gun at any of the officers.
No. 20-3274 Jordan v. Howard, et al. Page 18
On March 20, 2018, Plaintiff Sabrina Jordan filed a complaint on behalf of McShann’s
estate against Defendants under 42 U.S.C. § 1983 for violating McShann’s rights under the
Fourth and Fourteenth Amendments to be free from unreasonable seizures based on the use of
excessive force as well as for a number of claims under Ohio law.3 Defendants filed a motion
for summary judgment claiming that Plaintiff could not establish a genuine dispute of material
fact for trial and that the officers were protected by qualified immunity—because they did not
violate McShann’s clearly established rights by using deadly force in response to threatened
deadly force. Plaintiff argued in response that there were genuine disputes of material fact as to
whether McShann was holding a gun at the time he was shot and whether he picked up the gun
and pointed it at the officers. Plaintiff cited her expert report prepared by Jeremy Bauer, a
certified accident reconstructionist, who “concluded that McShann could not have been holding a
gun when he was shot in the right hand” because the gun sustained no damage, and pointed to
testimonial disputes among the officers as to whether McShann pointed a gun at them.
(Appellant Br. at 10.)
The district court granted summary judgment to Defendants. The district court found that
Defendants were entitled to qualified immunity because they did not violate McShann’s clearly
established constitutional rights and their use of deadly force was objectively reasonable. It also
determined that Plaintiff failed to establish a genuine dispute of material fact to sufficiently
contradict Defendants’ physical evidence and testimony. The district court deemed Bauer’s
report as irrelevant and unreliable due to its lack of scientific basis, its speculation that McShann
was not holding a gun when he was shot in the hand, and Bauer’s lack of knowledge about and
failure to address the order of gun shots. This timely appeal followed.
DISCUSSION
Standard of Review
We review “a district court’s grant of summary judgment de novo.” Moran v. Al Basit
LLC, 788 F.3d 201, 204 (6th Cir. 2015). Because qualified immunity is a legal question, we also
3The district court declined to exercise supplemental jurisdiction over the state law claims.
No. 20-3274 Jordan v. Howard, et al. Page 19
review de novo “[t]he question of whether a defendant is entitled to qualified immunity from
liability under 42 U.S.C. § 1983.” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010).
Summary judgment will be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “The moving party bears the burden of showing that no genuine issues of material fact
exist.” Rafferty v. Trumbull County, 915 F.3d 1087, 1093 (6th Cir. 2019). And all reasonable
inferences will be drawn in favor of the non-moving party. Mutchler v. Dunlap Mem’l Hosp.,
485 F.3d 854, 857 (6th Cir. 2007). “[A]t the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Analysis
The district court erred in finding that there was no genuine dispute of material fact
regarding whether McShann was holding or pointing a gun at the officers when he was shot and
that the officers were entitled to qualified immunity as a matter of law. Because the Bauer report
created a genuine dispute of material fact and the officers were not entitled to qualified
immunity, I would reach the district court’s alternative ruling that the report was inadmissible
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because it was
unreliable and speculative. I would reverse and remand to the district court on this ground
because the district court failed to create an adequate record in support of its Daubert
determination. See Jahn v. Equine Servs., CSC, 233 F.3d 382, 393 (6th Cir. 2000) (“[A] district
court should not make a Daubert determination when the record is not adequate to the task.”).
I. Genuine Dispute of Material Fact Regarding Whether McShann Held or
Pointed a Firearm at Defendants
The district court first erred by finding that the Bauer report failed to create a genuine
dispute of material fact as to whether McShann held or pointed a gun at the officers. Contrary to
the district court’s findings, we have found expert testimony to establish a genuine dispute of
material fact when supported by forensic evidence and “common sense.” King v. Taylor,
694 F.3d 650, 662 (6th Cir. 2012). In King, we held that there was a genuine dispute of material
fact as to whether King had pointed a gun at the officers based on the plaintiffs’ expert
No. 20-3274 Jordan v. Howard, et al. Page 20
testimony—supported by forensic evidence and common sense—which concluded that King
likely did not have his right arm stretched out towards the defendants before being shot. Id. at
663. We determined that the expert testimony put the officers’ testimony that King pointed a
gun towards them in genuine dispute inasmuch as the expert testimony was consistent with the
path of the bullet laid out in the autopsy report, King’s right arm having been found on his right
hip, and medical expert testimony regarding what happens when an individual’s medulla
oblongata is severed by a bullet. Id. at 662–63. Similarly, in Greenwell v. Boatwright, we
affirmed the admissibility of expert testimony, supported by the facts, that contradicted
eyewitness testimony. See 184 F.3d 492, 496 (6th Cir. 1999) (“Expert testimony is not
inadmissible simply because it contradicts eyewitness testimony.”).
In the present case, in determining that the Bauer report did not create a genuine dispute
of material fact, the district court failed to account for evidence in the record that supported
Bauer’s conclusions and contradicted the officers’ testimony. In coming to his conclusions,
Bauer reviewed a photograph of McShann’s firearm and found that its lack of damage where
McShann would have gripped the gun was inconsistent with the theory that McShann had the
gun in his hand when the officers shot him. Bauer’s conclusions were also consistent with
testimony by Officer Howard—who was positioned by the driver’s side of the car—that he did
not see McShann point a gun at the officers or the driver’s side window.4
While Bauer noted that the order of gunshots is unknown, he did consider in his report
the finding in the autopsy report that the wound in McShann’s right hand was caused by Officer
Knight’s firearm. Officer Cornely also testified that he heard Knight shoot his handgun twice
before hearing Howard fire his twelve-gauge shotgun and that the amount of time between the
first and last gunshot was a matter of one or two seconds. Knight testified that at most ten
4The majority argues that Howard’s testimony does not create a genuine dispute of material fact because
“[a]n explained absence of evidence in this context is not evidence of absence” and Howard explained that he
stopped keeping a visual on McShann’s hands in order to focus on shooting at McShann. Presnall v. Huey, 657 F.
App’x 508, 512 (6th Cir. 2016). However, unlike the officers in Presnall whose view of the suspect was obstructed,
Howard was able to see McShann’s hands as he was standing near the rear of the vehicle on the driver’s side—he
only looked away to take aim at McShann. See id. And, given that Howard shot before seeing McShann point the
gun at the officers, and that Howard’s and Knight’s shots occurred within seconds of each other, based on this
evidence a reasonable juror could find that McShann was not holding or pointing the gun at the time the officers
shot him.
No. 20-3274 Jordan v. Howard, et al. Page 21
seconds passed between when McShann woke up and when Knight shot at him, meaning that in
ten seconds McShann woke up, turned his body left to right twice, and proceeded to move his
right hand. Given this evidence, a reasonable juror could find that McShann was not holding or
pointing the gun at the time that the officers shot him, thereby not posing a threat of serious harm
to the officers. See infra Part II.
Contrary to the majority’s contention, Boyd v. Baeppler, 215 F.3d 594 (6th Cir. 2000),
does not control the present case. In Boyd, we found that the expert report did not create a
genuine dispute of material fact as to whether Boyd was unable to turn around and point his gun
at the officers after he was shot because “[t]he speculation of [a] plaintiff's expert is not sufficient
evidence to create a genuine issue of material fact.” Id. at 603. We reasoned that the expert
report was merely speculative because it did not state its conclusion “within a reasonable degree
of medical certainty,” “made assumptions about the sequence of shots and pathways of the
bullets,” and was not supported by the forensic evidence or testimony in the record and was
instead based on the expert’s review of the autopsy report. Id.
Unlike the report in Boyd, Bauer’s report stated his conclusions “to a reasonable degree
of scientific and biomechanical certainty.” (R. 25-4, Bauer Aff. and Report at PageID # 1011.)
Additionally, Bauer based his report on the facts in the record from the officers’ video
interviews, noting that Knight indicated that McShann “grab[bed] the gun, raise[d] it up off his
lap,” whereas Howard stated that McShann’s “right hand grabbed that gun and when it did I
pulled the trigger.” (Id. at PageID # 995.) And as discussed above, Bauer’s conclusions were
more than speculative because they were consistent with the finding in the autopsy report that
Officer Knight caused the wound in McShann’s right hand; testimony from Officer Cornely
indicating that he heard Knight shoot his handgun first, and that the sequence of shots occurred
in one or two seconds; and testimony from Officer Howard that he did not see McShann point
the gun at the officers before shooting at McShann.
As in King, Plaintiff has demonstrated a genuine dispute of material fact sufficient to
withstand summary judgment because a reasonable juror could find “based upon the forensic
evidence, expert testimony, and common sense” that McShann was not holding or pointing the
gun at the officers and therefore did not pose a threat of serious physical harm to the officers.
No. 20-3274 Jordan v. Howard, et al. Page 22
694 F.3d at 662. And the inconsistencies among the officers’ testimony, the Bauer report, and
the evidence in the record amount to credibility issues and weighing of evidence that should be
left to the jury. See Anderson, 477 U.S. at 249 (“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”).
Accordingly, the district court erred when it determined that the Bauer report did not create a
genuine dispute of material fact sufficient to withstand summary judgment and failed to take into
account the evidence in the record supporting Bauer’s conclusions.
II. Defendants’ Entitlement to Qualified Immunity
The district court also erred by finding that the officers were entitled to qualified
immunity for their use of deadly force in this case. In Harlow v. Fitzgerald, the Supreme Court
held that “government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 457 U.S. 800, 818
(1982). We review qualified immunity claims using a two-step analysis: (1) whether “[t]aken in
the light most favorable to the party asserting the injury, [] the facts alleged show the officer's
conduct violated a constitutional right,” and (2) “whether the right was clearly established . . . in
light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001). But see
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts are “permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand”).
Regarding the alleged constitutional violation in the present case, “apprehension by the
use of deadly force is a seizure subject to the reasonableness requirement of the Fourth
Amendment.” Garner, 471 U.S. at 7. The reasonableness of the officer’s 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). In Garner, the Supreme
Court held that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever
the circumstances, is constitutionally unreasonable” unless “the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer or to others.”
No. 20-3274 Jordan v. Howard, et al. Page 23
471 U.S. at 11. The Supreme Court elaborated that “if the suspect threatens the officer with a
weapon . . . deadly force may be used if necessary to prevent escape, and if, where feasible, some
warning has been given.” Id. at 11–12.
We have previously provided the following factors to consider when applying the
probable cause standard from Garner: “(1) the severity of the crime at issue; (2) whether the
suspect poses an immediate threat to the safety of the officers or others; and (3) whether the
suspect is actively resisting arrest or attempting to evade arrest by flight.” Bouggess v.
Mattingly, 482 F.3d 886, 889 (6th Cir. 2007). And “even when a suspect has a weapon, but the
officer has no reasonable belief that the suspect poses a danger of serious physical harm to him
or others, deadly force is not justified.” Id. at 896. But we have also recognized “that police
officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Mullins v. Cyranek, 805 F.3d 760, 766–67 (6th Cir. 2015) (quoting Graham,
490 U.S. at 396–97).
The first factor from Bouggess weighs in favor of Plaintiff since the severity of the crime
at issue was minimal. When they initially arrived at the apartment complex, the officers were
responding to a noise complaint, which is a minor misdemeanor punishable by a fine, regarding
the music coming from McShann’s vehicle. Once the officers looked into McShann’s vehicle,
they learned that McShann was in possession of a firearm. This observation did not create
probable cause that McShann had committed a firearm offense because Ohio law allows an
individual to transport a loaded handgun in a motor vehicle if the possessor has a valid concealed
handgun license. Ohio Rev. Code § 2923.16(F)(5)(a). Having no information on McShann, at
that point the officers had no reason to believe that McShann possessed the weapon without a
license or that McShann had been previously convicted of a felony, which would have prohibited
him from possessing a firearm. See Northup v. City of Toledo Police Dep’t, 785 F.3d 1128, 1132
(6th Cir. 2015) (“Where it is lawful to possess a firearm, unlawful possession ‘is not the default
status.’” (quoting United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013))). Defendants argue
in their brief that they had “probable cause or reasonable suspicion to believe Mr. McShann was
violating R.C. 2923.15, which prohibits a person from carrying a firearm while intoxicated.”
No. 20-3274 Jordan v. Howard, et al. Page 24
(Appellees Br. at 27.) But this argument is foreclosed by the officers’ own admission that they
did not suspect McShann to be intoxicated at the time they found him inside the vehicle.
As for the second factor, as discussed above, there is at least a genuine dispute of material
fact as to whether McShann posed an immediate threat to the safety of the officers and whether
he was resisting arrest. Generally, drawing a weapon and pointing it at the officers can justify
the use of deadly force. See Garner, 471 U.S. at 11. But while Officers Knight and Cornely
testified that they saw McShann point a gun in the direction of the driver’s side window, where
Officers Knight and O’Neal were standing, Officer Howard testified that he only saw McShann
grab the gun and did not see him point the gun at the officers. Additionally, the Bauer report
concluded that McShann was not holding a gun when he was shot in the hand based on the lack
of damage to the firearm. Given the factual dispute as to whether McShann held or pointed a
gun at the officers, a reasonable jury could find that McShann did not pose an immediate threat
of safety to the officers, such that a reasonable officer would not believe that McShann presented
a serious risk of physical harm. See King, 694 F.3d at 662 (finding that a “factual dispute
exist[ed]” as to “whether Taylor reasonably believed that King posed a threat of serious physical
harm to Taylor or the other officers” based on evidence and testimony that called into question
whether “King pointed a gun at the officers just before being shot”).
The third factor weighs in favor of Plaintiff because McShann was not resisting arrest at
the time that he was shot; he was sitting in the car, just having awoken, and none of the officers
claimed that McShann pulled the trigger of the firearm. Cf. Mullins, 805 F.3d at 767 (“Mullins
had his finger on the trigger of a gun, and at that time, he posed a serious threat to Cyranek and
the general public . . . .”). Additionally, even assuming McShann was trying to resist arrest, the
officers failed to provide any warning to McShann that the officers intended to shoot. See
Garner, 471 U.S. at 11–12. A warning was feasible in this instance because the officers initiated
the contact with McShann by banging on his car window and waking him up, and they had
already been shouting commands, with which McShann had complied by raising his hands in the
air. Based on these factors, Officers Knight and Howard likely did not have probable cause
under Garner to use deadly force against McShann—or there is at least a genuine dispute of
No. 20-3274 Jordan v. Howard, et al. Page 25
material fact as to this issue—because the officers did not have a reasonable belief that McShann
posed a risk of serious physical harm to them.
Because there was a constitutional violation in this case, I would proceed to the question
of whether McShann’s right to be free from deadly force was clearly established. In determining
whether a right is clearly established, [t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). “This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held unlawful,” but “in
the light of pre-existing law the unlawfulness must be apparent.” Id.; see Feathers v. Aey,
319 F.3d 843, 848 (6th Cir. 2003) (“[A]n action's unlawfulness can be apparent from direct
holdings, from specific examples described as prohibited, or from the general reasoning that a
court employs.”). And “[w]e look first to the decisions of the Supreme Court, and then to the
case law of this circuit in determining whether the right claimed was clearly established when the
action complained of occurred.” Gragg v. Kty. Cabinet for Workforce Dev., 289 F.3d 958, 964
(6th Cir. 2002).
For purposes of the present case, Garner clearly established that the use of deadly force
without probable cause to believe that the individual posed a threat of serious physical harm is
constitutionally unreasonable. 471 U.S. at 11. And in King, we stated that “[i]t has been clearly
established in this circuit for some time that ‘individuals have a right not to be shot unless they
are perceived as posing a threat to officers or others.’” 694 F.3d at 664 (quoting Ciminillo v.
Streicher, 434 F.3d 461, 468 (6th Cir. 2006)). In that case, we held that the district court erred in
granting summary judgment based on qualified immunity because there was a genuine dispute of
material fact as to whether the defendant pointed a gun at the officers before being shot. Id. at
662. We reasoned that if he had not pointed the gun at the officers, then his clearly established
right to be free of deadly force would have been violated. Id. We also determined in Bletz v.
Gribble that “if genuine issues of material fact exist as to whether the officer committed acts that
would violate a clearly established right, then summary judgment is improper.” 641 F.3d 743,
749 (6th Cir. 2011). Similarly, in the present case, assuming that McShann did not hold or point
the gun at the officers, Howard and Knight violated McShann’s clearly established right to be
No. 20-3274 Jordan v. Howard, et al. Page 26
free from deadly force—McShann not having posed a threat of physical harm to the officers
based on the officers’ reasonable belief.
For the foregoing reasons, I respectfully dissent and would reverse the district court’s
grant of summary judgment to Defendants and remand the case for further proceedings.