Jones v. Sandusky Cnty.

• Citation: 96 F.Supp.3d 711
• Decision Date: 30 March 2015
• Docket Number: Case No. 3:10 CV 2261.
• Parties: Kim JONES, Individually and as Executrix/ Administrator of the Estates of Tracy Jones and Bryan Jones, Deceased, Plaintiff, v. SANDUSKY COUNTY, OHIO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

96 F.Supp.3d 711

Kim JONES, Individually and as Executrix/ Administrator of the Estates of Tracy Jones and Bryan Jones, Deceased, Plaintiff

v.SANDUSKY COUNTY, OHIO, et al., Defendants.

Case No. 3:10 CV 2261.

United States District Court, N.D. Ohio, Western Division.

Signed March 30, 2015.

Dennis E. Murray, Sr., Donna Jean A. Evans, Murray & Murray, Sandusky, OH, for Plaintiff.

Joan C. Szuberla, James R. Jeffery, Teresa L. Grigsby, Spengler Nathanson, Toledo, OH, Joseph M. Hegedus, Ohio Patrolmen's Benevolent Association, Columbus, OH, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR NEW TRIAL

JACK ZOUHARY, District Judge.

Introduction

In October 2014, after a four-day trial, a jury rejected Plaintiff Kim Jones' claims that Sandusky County, County Sheriff Kyle Overmyer, and two sheriff deputies (brothers Jose and Mario Calvillo), violated federal and state law during the July 2010 shooting death of her son, Bryan Jones. Plaintiff timely moved for a new trial (Doc. 188). For the reasons below, this Court denies the Motion.

Background

The facts of this case have been developed over more than four years of litigation, including an interlocutory appeal to the Sixth Circuit, and are briefly stated here.

On July 11, 2010, Sandusky County Sheriff deputies responded to a 911 call from Tracy Jones (Kim Jones' husband and Bryan Jones' father, who passed away during this litigation). Kim Jones had earlier left the Jones home to spend the evening watching television with her mother and sister, Sherry Keller, at her mother's nearby home. Tracy Jones, preparing to leave home for his night-shift job, encountered Bryan at roughly 9:00 PM at the Jones home where Bryan lived with his parents. Tracy Jones called police dispatch and relayed that Bryan had been abusing alcohol for several days, had threatened to kill his mother, told his father to call the police and that he, Bryan, would “fight.”

Arriving after dark, sheriff deputies observed Bryan, through an exterior first floor window, sitting on the living room couch with a pump-style shotgun resting on his lap and his feet resting on a coffee table. The living room lay at the north end of the home, with a computer room adjoining to the south, and a kitchen further south.

Bryan sat facing the deputies' vantage point. For the next 90 minutes, the deputies observed Bryan in the same posture; he made few movements. One deputy speculated that Bryan may have been dead (he was not). Sheriff Overmyer eventually ordered a four-member Tactical Response Team (“TRT” or SWAT team) into the home.

Around 11:30 PM, the TRT entered the home through the unlocked exterior kitchen door. Their plan: after a stealth entry into the kitchen, the deputies would “stack up” alongside the wall separating the kitchen from the computer room. Then, Deputy Kevin Karns would lob a flashbang grenade across the computer room and into the living room. At the same time, Fremont Police Sergeant Anthony Emrich, standing outside the home at the living room's north window, would shatter that window with his asp, a type of telescoping baton. Both the flashbang and shattered window were intended to distract and disorient Bryan.

With guns drawn and shouting commands such as “Drop it!,” three of the four TRT members would then rush Bryan, either as a show of force in hopes that he would drop the shotgun or to physically subdue him. Mario Calvillo, first in line, carried a ballistics shield and a handgun. TRT team leader Jose Calvillo, second in line, held an M16 rifle in both hands. Karns, last in line, carried a carbine; Karns had attached the carbine to his bullet-resistant vest with a lanyard-like device, leaving Karns' hands free to manipulate the flashbang. Deputy Allen Dorsey would remain in the kitchen as a rearguard.

The TRT executed the entry plan, which ended with both Calvillos fatally shooting Bryan, who died just before midnight, despite attempts by emergency responders to save his life.

The jury heard conflicting evidence on whether the flashbang startled Bryan from sleep, whether he raised the shotgun toward the deputies, and whether the smoke from the flashbang made it difficult to determine if Bryan's movements were harmless or threatening. Kim Jones claimed errors in the police response resulted in the needless killing of her son. Defendants claim that, as the TRT entered the living room, Bryan swung the shotgun barrel in the TRT's direction and “racked” the shotgun (also called “pumping” or “ratcheting,” the action that ejects a spent shotgun shell (if any) and fills the chamber with a fresh shell). Mario Calvillo claimed he was so certain Bryan would shoot him that he braced for the impact of a shotgun blast. No party disputes that Defendants believed the shotgun was loaded-during his 911 call, Tracy told dispatch there were loaded guns in the home, and dispatch relayed that information to the deputies. In fact, the shotgun was not loaded.

Prior to the TRT entry, deputies called Tracy to the scene. Tracy offered to talk Bryan into laying down the shotgun, but deputies declined the offer, citing the threat Bryan posed. Separately, Kim and her sister approached the home, but a park ranger positioned at the end of the Jones driveway prevented them from proceeding further, at least in part because Bryan had threatened Kim's life. When the sisters heard an explosion and gunshots, they ran past the ranger; Keller, along with Tracy, claimed they heard Bryan cry “Why!?” before he was shot.

Kim Jones raised at trial 42 U.S.C. § 1983 claims, alleging excessive force by use of the flashbang and the shooting. She also brought state-law wrongful death and intentional infliction of emotional distress (“IIED”) claims against Sheriff Overmyer and both Calvillos. This Court granted a directed verdict in Defendants' favor on the IIED claim; the jury rejected all other claims.

Standard of Review

Kim Jones moves for a new trial pursuant to Federal Civil Rule 59(a). “District courts are afforded broad discretion in deciding whether to grant a motion for a new trial.” Clarksville–Montgomery County School Sys. v. U.S. Gypsum Co., 925 F.2d 993, 1002 (6th Cir.1991). “Unless justice requires otherwise, no error in admitting or excluding evidence-or any other error by the court or a party-is grounds for granting a new trial.... At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.”

Federal Civil Rule 61. Because “a jury reaches its verdict in light of the evidence as a whole, it makes no sense to try to analyze errors in artificial isolation, when deciding whether they were harmless.” Beck v. Haik, 377 F.3d 624, 645 (6th Cir.2004), overruled on other grounds by Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir.2009) (en banc). Therefore, this Court considers the effect each asserted error had on the jury's verdict by itself, then considers the effect of the asserted errors as a whole.

Discussion

Plaintiff argues she is entitled to a new trial based on the cumulative effect of four alleged errors. First, she argues she was prejudiced by three erroneous evidentiary rulings. Second, she contends this Court erroneously prevented the jury from considering whether Sheriff Overmyer wrongfully caused Bryan's death. Third, she claims defense counsel committed misconduct during closing argument by referring to matters ruled off-limits by this Court. Fourth, she asserts this Court erred in granting Defendant's request for a directed verdict on the IIED claim against Sheriff Overmyer.

Evidentiary Rulings

Standard. The claims of evidentiary error relate to this Court's decisions to exclude certain evidence. This Court must consider whether any ruling was erroneous and, if so, whether the ruling was harmless:

That inquiry involves an assessment of the likelihood that the error affected the outcome of the case. As the Supreme Court has described the test: ‘If one cannot say, with fair assurance that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.’ Application of this test is highly sensitive to the unique context of the particular case, including the one-sided or closely balanced nature of the evidence bearing upon the issue which the error arguably affected, and the centrality of that issue to the ultimate decision.

Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 157 (6th Cir.1988) (quoting Jordan v. Medley, 711 F.2d 211, 218–19 (D.C.Cir.1983) (Scalia, J.)) (internal citations, ellipsis, and brackets omitted). If a district court errs by excluding evidence for one reason (e.g., relevance), but the evidence could properly be excluded for another reason (e.g., hearsay), the error is harmless. 11 Wright & Miller, Fed. Prac. & Proc. § 2885 (3d ed.). Plaintiff bears the burden of showing an error was not harmless. See Varga v. Rockwell Intern. Corp., 242 F.3d 693, 701–02 (6th Cir.2001).

The Unloaded Gun. This Court prohibited reference to the fact that Bryan's gun was unloaded, ruling “there should be no comment or testimony on the unloaded gun for the purpose of showing Bryan's intent” because no party disputed (then or now) that the deputies thought Bryan held a loaded gun (Doc. 163 at 3; see also Doc. 161 at 1).

Plaintiff argues evidence that the shotgun was unloaded should have been presented to the jury for three reasons. First, she argues the evidence refuted defense police practices expert James Scanlon's testimony that Bryan was “ ‘lying in wait’ for [the TRT] to enter so that Bryan could ambush them” (Doc. 188 at 4). Plaintiff argues there is no basis to assume Bryan was aware of the TRT's presence and he could not have intended to ambush the deputies with an empty shotgun.

Second, she argues the absence of ammunition in the shotgun “should have been allowed to challenge the credibility” of the deputies who claim they saw Bryan point the gun barrel in their direction. “[I]t would have...