dissenting.
I respectfully dissent. The majority identifies two parts of the instruction which it feels unduly prejudiced the plaintiff. In examining these disputed provisions of what the majority itself describes as a well-prepared charge, I find that, taking the instructions as a whole, the District Judge adequately apprised the jury of the relevant considerations to weigh in reaching a verdict. I would therefore affirm the judgment of the District Court and deny recovery to plaintiff.
At the outset, I feel constrained to point out some factual inaccuracies in the majority’s presentation of the case. The majority concludes that the officers in fact searched the plaintiff immediately upon arriving at the scene. However, that is merely the plaintiff’s version of what occurred. Police officer Walton’s testimony indicates that no search of the plaintiff took place at any time prior to the shooting. The jury clearly believed this defendant’s version of the shooting and the events preceding it. It is not our place to substitute our evaluation of the evidence for that of the trier of fact. Additionally, the plaintiff did not only admit that while escaping he turned to observe the pursuing officer, he did not deny that at the time of the shooting he had his arm raised and cocked over his head. When asked if he had, his answer was that he did not know.
It must also be reiterated that the key issue in this case was not whether the police officer shot plaintiff in order to apprehend a fleeing misdemeanant; rather, the sole and crucial issue was whether the police officer reasonably believed, both subjectively and objectively, that he was justified in shooting the plaintiff in self-defense. The police officer never attempted to justify the shooting on any basis except self-defense.
The majority’s first criticism of the charge is not well-founded. See Op. at 212-213. The majority argues that this part of the charge was in error when it mistakenly permitted the jury to find fatal force justified in recapturing a misdemeanant. But, as the majority itself notes, the defense was one of self-defense, not the justifiable apprehension of a criminal. The majority does argue that this instruction could have permitted the jury to exonerate the officer if the officer believed gunfire was necessary to recapture the fleeing plaintiff. I disagree that the jury could have so misunderstood the import of the charge. While it is perhaps unfortunate that the trial court mentioned the apprehension of a fleeing felon or a misdemeanant at all, the jury could not have understood this instruction, given its context, to suggest what the majority fears it did.1 *217Justifiable recapture of a criminal was simply not a part of this case and the majority’s attempt to read that issue into the instruction is unfair.
Similarly, it is unfair to characterize the District Judge’s instruction as permitting exoneration of defendant based solely on defendant’s subjective judgment on the necessity of gunfire. The instruction mandated the jury take into consideration all of the factors which confronted the officer at the time of the shooting in order to assess properly the reasonableness of the officer’s actions.2
The majority also criticizes another portion of the near-fifty page charge which, they again claim, unfairly prejudiced the plaintiff’s case. However, the portion of the instruction cited by the majority belies their claims:
The jury should keep in mind, and the Court charges as a matter of law, that the Defendant Walton had the lawful authority to enforce existing State and local laws to insure the public safety and welfare and to protect himself from physical harm during the administration of his official duties. And unless the evidence in the case leads the jury to a different or contrary conclusion, the presumption is that the law has been obeyed.
App. at 56 (emphasis supplied). Hence, the majority’s statement that “there is ... no reference to the crucial issue in this case which is whether some testimony related to Walton’s self-defense claim excused otherwise illegal use of gunfire to recapture a misdemeanant,” is not supported by the trial court’s charge. While it may have been preferable for the court to emphasize further that self-defense was the crucial element of the case, I am confident that the jury understood that to be the determining *218factor after reviewing the charge as a whole.3
The final sentence of the above-quoted charge did not act to place the burden of disproving immunity on plaintiff. It only informed the jury that the mere occurrence of the shooting at issue should not be taken to be evidence of improper police conduct. See app. at 57-9, quoted supra, at n.3. Elsewhere the court instructed on the burden of proof.4
For the reasons stated here, I disagree with the majority’s characterization of the jury instructions. Accordingly, I dissent.
. The Court’s charge to the jury, understood in context, dispels any doubt that the jury could have misunderstood the focus of the inquiry.
The Court charges you, as a matter of law, that in Ohio deadly force is never justified to prevent a misdemeanor or to apprehend a misdemeanant, except when suppressing a riot. Deadly force may, however, be used to prevent a felony or to apprehend a felon.
In any case, ladies and gentlemen of the jury, only such force may be used as is necessary under the circumstances prevailing at the time.
It is the conduct of the parties during and at the time of the involvement of the incident giving rise to the claims of the plaintiff that join the issues in this case. After an incident has occurred it is usually easy to see how those incidents could have been avoided; but the breach of duty by Walton, if any, in using excessive force, as charged in this action, is not a matter to be judged after the occurrence of the alleged incidents and circum*217stances but rather under the circumstances and conditions confronting Officer Walton at the time of the incidents, taking into consideration Officer Walton’s characteristics, his knowledge or lack of knowledge of the circumstances and conditions surrounding him at the time, and whether the Defendant Walton had reasonable grounds for an honest belief that he or his partner were in imminent danger of receiving great bodily harm or being killed.
Stated another way, in assessing the reasonableness or unreasonableness of force used by Officer Walton under the existing conditions and circumstances, the rule does not require that in retrospect the amount of force used must actually have been necessary. Rather, it is sufficient if Walton had reasonable cause to believe and did believe in good faith that the force used was necessary.
Thus, if Officer Walton had reasonable cause to believe and did believe in good faith that the force used was necessary under the conditions and circumstances existing and confronting him at the time here in issue, he was justified to use such force without regard to whether the use of such force arose from incidents involving either a misdemean- or or a felony.
App. at 53-5 (emphasis supplied). The majority can only rely on the first paragraph quoted above to support its assertion that the jury confused the issues of self-defense and apprehension of a criminal. The remainder of the charge, however, more than compensates for this first paragraph. Thus, the majority’s reliance on Jackson v. Crockarell, 475 F.2d 746 (6th Cir. 1973) (per curiam) is equally inapposite for here there was no authentic instruction on the use of deadly force. It is clear to me that the jurors understood that they were to evaluate the necessity of using force to repel what the officer reasonably believed to be an “imminent danger of receiving great bodily harm .. .. ”
. Stated another way, in assessing the reasonableness or unreasonableness of force used by Officer Walton under the existing conditions and circumstances, the rule does not require that in retrospect the amount of force used must actually have been necessary. Rather, it is sufficient if Walton had reasonable cause to believe and did believe in good faith that the force used was necessary.
App. at 54 (emphasis supplied). Three paragraphs later the court continued:
Thus, even though a police officer may not have elected the wisest or most reasonable course of action, such police officer should not be civilly liable if his conduct is based on a reasonable and good faith belief that his response was necessary under the facts and circumstances then and there existing. However, a police officer's stated good faith belief in the necessity or wisdom of his undertaken course of action is not dispositive of that element of the defense but must be supported by some objective evidence.
App. at 55-6 (emphasis supplied).
. Such a conclusion is further bolstered by the court’s summation of its charge:
Accordingly, if the jury finds from a preponderance of the evidence in the case that the Defendant Walton acted within the bounds of his lawful authority under State or other law at the time and place alleged, then the jury should return a verdict in favor of the Defendant Walton; for, as previously stated, unless the Defendant Walton acted outside the limits of his lawful authority under State or other law, ordinance, rule, regulation or custom, or used greater force than would have reasonably appeared to have been necessary under like and similar circumstances in order to accomplish the lawful purpose intended, then the defendant did not deprive the plaintiff of any liberty without due process of law, and the jury shall return a verdict for the Defendant Walton and need not deliberate further.
If, however, the jury concludes from a preponderance of the evidence that the Defendant Walton acted beyond the bounds of his lawful authority under color of State law, municipal ordinance, regulation, rule or custom, at the time and place alleged, or used greater force on plaintiff than was reasonably necessary under like or similar circumstances in order to accomplish the lawful purpose intended, or acted as he did toward the plaintiff not to perform his lawful duty but was prompted by another unlawful motive, then in that event the jury may find that the Defendant Walton did, without due process of law, deprive the plaintiff of liberty secured to him and protected by the Constitution and laws of the United States; and the jury shall then proceed to consider and decide the liability of the city and its police department, if any, arising from the training and/or supervision, or lack thereof, afforded Defendant Walton in preparing him for his duties as a police officer, including his training, or lack thereof, in the use of deadly force, as alleged in the plaintiffs complaint.
App. at 57-9 (emphasis supplied).
. In a civil action the person who asserts that certain facts exist must prove those facts by a preponderance of the evidence. This obligation is known as the burden of proof.
Thus, in this case the burden of proof is upon the plaintiff to initially prove by a preponderance of the evidence all of his assertions that, one, Defendant Walton knowingly shot and wounded him as alleged in his complaint; and, two, Defendant Walton then and there acted under color of some state law, ordinance, regulation or custom of the city and/or its police department; and, three, Defendant Walton’s act and conduct deprived the plaintiff of his constitutional right not to be denied or deprived of his liberty or civil rights without due process of law, as those terms are defined and explained in these instructions; and, four, the Defendant Walton’s acts and conduct were the proximate cause of injury and damage to the plaintiff. ******
While the burden of proof rests upon the party who asserts the affirmative of an issue to prove the claim by a preponderance of the evidence, this rule does not require such degree of proof as produces absolute certainty, since in human affairs absolute certainty is seldom possible.
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An inference is a reasonable deduction of fact which logically follows from other facts established by the evidence. The existence of an inference or presumption does not change or shift the burden of proof from one party to another. The inference or presumption must be weighed along with all the evidence to determine if the issue to which it applies has been established by a preponderance of the evidence.
App. at 41-4.