Jordan v. Howard

• Decision Date: 18 February 2020
• Docket Number: Case No. 3:18-cv-082
• Citation: 440 F.Supp.3d 843
• Parties: Sabrina JORDAN, Administrator of the Estate of Jamarco McShann, Plaintiff, v. Officer John HOWARD, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

440 F.Supp.3d 843

Sabrina JORDAN, Administrator of the Estate of Jamarco McShann, Plaintiff,

v.Officer John HOWARD, et al., Defendants.

Case No. 3:18-cv-082

United States District Court, S.D. Ohio, Western Division, at Dayton.

Signed February 18, 2020

Jacqueline C. Greene, Terry H. Gilbert, Marcus Sidoti, Sarah Jeanette Gelsomino, Cleveland, OH, for Plaintiff.

Bryan Joseph Mahoney, Kelly Marie Schroeder, Neil Frank Freund, Freund Freeze & Arnold, Dayton, OH, Kimberly A. Rutowski, Hardin, Lazarus & Lewis, LLC, Cincinnati, OH, for Defendants.

ENTRY AND ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS MICHAEL CORNELY, JUSTIN ELLER, JOHN HOWARD, JERRY KNIGHT, BRIAN O'NEAL, ECF 13, DECLINING TO EXERCISE JURISDICTION OVER STATE LAW CLAIMS AND TERMINATING CASE.

THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

Although proverbial wisdom has for millennia taught the advantage of not provoking potentially dangerous situations, see Prov. 26:17, because the United States Supreme Court has refused to proclaim this wisdom to be clearly established Constitutional law, Defendants are entitled to qualified immunity. Pending before the Court is a document entitled Motion for Summary Judgment by Defendants Michael Cornely, Justin Eller, John Howard, Jerry Knight, Brian O'Neal, Unnamed Officers, ECF 13. Movants request that the Court award them summary judgment on all counts of Plaintiff's Complaint. ECF 1.

The Complaint arises from events of October 20, 2017, when police investigating a noise complaint chose to rouse a man they found sleeping in a car with a gun on his lap, after which he put his hand on the gun, a reaction one might predict but which caused police to fear for their safety. The administrator of the man's estate filed a complaint asserting a claim for Unconstitutional Seizure in violation of 42 U.S.C. § 1983, a claim for State Law Wrongful Death Claim Pursuant to Ohio Revised Code § 2125.02, a claim for State Common Law Claim for Civil Conspiracy and State Law Claim for Assault and Battery. They further allege survivorship damages and allege Willful, Wanton and Reckless Conduct. The complaint names as defendants Officer John Howard, Officer Jerry Knight, Officer Michael Cornely, Officer Justin Eller, Officer Brian O'Neal and Unnamed Officers.

On October 30, 2019, Defendants Michael Cornely, Justin Eller, John Howard, Jerry Knight and Brian O'Neal moved for summary judgment. ECF 13. Plaintiff responded, opposing Defendant's motion, but allowing that she was no longer proceeding on claims against O'Neal and dismissing all claims against O'Neal. Plaintiff further limited her claims against Cornely to state law claims only waiving constitutional claims against him. ECF 25, at 14 n.4, PageID 957.

I. Background

In the early hours of October 20, 2017, Moraine police officers were dispatched to the Valley View Apartments for a noise complaint coming from a vehicle playing loud music. Knight Dep. at 44-45. Jamarco McShann—a 23-year-old black man was asleep in his girlfriend's car, outside their apartment. (DaShelle Sparks Dep., attached as Ex. 5, at 7, 16, 19, 21.) That night, Defendants Jerry Knight, Michael Cornely and John Howard worked their regular midnight shift together. (Howard Dep. at 72-73, ECF 16, PageID 196.) In response to the noise complaint, Knight was dispatched to Sunnyside Apartments at 3730 Pinnacle Park. (Id. at 95, PageID 202.) Howard and Cornely also reported to the complex. (Id.; Cornely Dep. at 20-21, ECF 17, PageID 299.)

Knight arrived first. It was dark, and the area was illuminated only by some streetlights, mainly from apartment buildings. He walked approximately a block away—to 3750 Pinnacle Park—where he heard music coming from a parked car. (Knight Dep., ECF 15, PageID 72, at 47.) The vehicle was backed into a parking spot. Two SUVs were also parked nearby. (Id., PageID 75, at 59.) Knight approached the car and looked inside with his flashlight. (Knight Dep. at 58, ECF 15, PageID 75; Howard Dep. at 109, ECF 16, PageID 205.)

Knight saw a man sleeping, reclined in the driver's seat, with his left hand behind his head like a pillow. (Knight Dep. at 58, 61, ECF 15, PageID 75.) All the car windows were up. (Howard Dep. at 129, ECF 16, PageID 210.) Knight pulled on the door handle, but it was locked. (Cornely Dep. at 25.) When Knight saw McShann's hand on the gun, he backed up from the vehicle. (Knight Dep. at 62.)

By that time, Officer Cornely had arrived on the scene and Officer Knight said "hey, Mike, he's got a gun in his right hand." (Knight Dep. at 63, 66; Cornely Dep. at 22.) Knight and Cornely both claim they saw a gun on the sleeping man's lap, with the muzzle facing toward the driver's door, kind of at a slant. (Knight Dep., ECF 15, PageID 76 at 64.) The gun was a Ruger semi-automatic pistol, with a large extended magazine. Cornely radioed in a signal 13 (which stands for a gun) and they waited for Officer Howard to arrive. (Knight Dep. at 71.) Howard arrived. Howard claims that the muzzle was facing the "outboard" side of the car, pointing toward the left and behind the sleeping man. (Howard Dep. at 127, ECF 16, PageID 210; Knight Dep. at 72, ECF 15, PageID 78.)

Defendants did not know the identity of the sleeping man. They also knew nothing about whether he had any potential criminal history—and by extension, knew nothing about whether the man was subject to any restrictions on handgun possession. (Howard Dep. at 163, ECF 16, PageID 219.)

Defendants did not see evidence of drugs or other weapons. (Id. at 120, PageID 208.) Defendants do claim they were concerned about a potential overdose or medical emergency. However, they did not call EMS or attempt to provide any medical aide, did not check for breathing and did not attempt to wake the man until almost thirty minutes after they arrived on scene. (Id. at 197-98, PageID 227-28; see also Dispatch Record, attached as Ex. 6.)

After observing the man, Knight, Cornely and Howard gathered to the side of the apartment building. (See Exhibit 3 to Howard's Dep., ECF 16-1, PageID 271.) They decided to run the license plates. The plates came back registered to DaShelle Sparks, who lived in the apartments behind the parked car. (Knight Dep. at 73, ECF 15, PageID 78.)

Defendants decided to try to find Sparks in hopes that she could identify and help wake McShann. Defendants thought it would be helpful and less startling for a familiar person to wake the man rather than police. (Howard Dep. at 137-38, ECF 16, PageID 212.) Defendant Cornely went to owner's apartment and knocked on the door. (Howard Dep. at 137, ECF 16, PageID 212.) No one answered the door at the apartment. (Howard Dep. at 137-38, ECF 16, PageID 212-13; Knight Dep. at 74-75, ECF 79, PageID 79.) While Cornely went to the door, Knight and Howard waited by the tree. (Knight Dep. at 75, ECF 79, PageID 79.)

The officers suspected McShann was violating the law by improperly handling a firearm in a motor vehicle. (Cornely Dep. at 31; Howard Depo at 10, 89.) The possession of a loaded gun in a motor vehicle without a license would give the officers probable cause to stop McShann. (Howard Depo at 15.) At the same time, Ohio is an open-carry state. Ohio law permits carrying weapons and does not per se prohibit extended capacity magazines. Ohio concealed handgun licenses allow loaded handguns inside vehicles and permit drivers to transport or have a loaded handgun on or about their person. ( Ohio Rev. Code § 2923.16(E) ; Ohio Rev. Code § 2923.16(F)(5).)

The music was still blaring. (Knight Dep. at 76.) There were calls coming into McShann's cell phone and when that happened the music would stop, and it would ring real loud. (Knight Dep. at 76-77.) Howard, Knight and Cornely remained on the scene. Though Cornely was the senior officer, Howard took charge of the scene. (Howard Dep. at 150, ECF 16, PageID 216.) Howard decided to place stop sticks under the tires to prevent fleeing. (Cornely Dep. at 28-29, ECF 17, PageID 301; Knight Dep. at 75, ECF 15, PageID 79.) Knight moved his cruiser to shine his spotlight into the windshield of McShann's car. (Knight Dep. at 82, ECF 15, PageID 81.) The spotlight helped illuminate the interior, but it still was not that bright inside the car. (Howard Dep. at 149, ECF 16, PageID 215.)

At this point it was coming close to 5:30 in the morning and people were starting to come out to their vehicles to go to work. (Knight Dep. at 77, 93.) The Officers realized that kids were going to be getting ready for school very shortly. (Knight Dep. at 77.) While if McShann possessed a concealed carry license, Ohio law has declared that a man with a gun is not a concern for people coming out to their vehicles or for children getting ready for school, the officers were concerned. Indeed, at this hour, their clearest concern, the noise violation, was somewhat less pressing, as people were beginning to rise and go about their day.

Howard decided to call in officers O'Neal and Eller. Howard requested they bring a ballistics shield to approach the vehicle. (Cornely Dep., at 30-31, ECF 17, PageID 302.) O'Neal and Eller arrived and joined Howard, Knight and Cornely in the grassy area by the tree. (Knight Dep. at 97, ECF 15, PageID 84.)

Defendants approached the vehicle, intending to disarm McShann and remove him from the vehicle to investigate the noise complaint. (Knight Dep. at 103, ECF 15, PageID 86.) Howard ordered everyone to their positions. Knight was to contact the driver. (Knight Dep. at 103, ECF 15, PageID 86.) Knight and O'Neal were to approach the driver's side with O'Neal on the shield. (Id.) Cornely was to post up on the passenger side to provide cover and additional light with his flashlight. (Howard Dep. at 147, ECF 16, PageID 215.)

Before the approach, Howard claims he instructed the others that if the sleeping man grabbed the gun, they should all stay back so they would not shoot across the car at each other. Howard also said that "they probably wouldn't even need to...