Sara Knowlton, as Administrator of the estate of Brian Garber v. Richland County, Ohio; Raymond Frazier; Andrew Knee; James Nicholson

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0099n.06
No. 17-3459
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SARA KNOWLTON, as Administrator of the estate
of Brian Garber,
Plaintiff-Appellee,
v.
RICHLAND COUNTY, OHIO; RAYMOND
FRAZIER; ANDREW KNEE; JAMES
NICHOLSON,
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
BEFORE: SILER, WHITE and THAPAR, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendants-Appellants, Richland County, Ohio
Sheriff’s Officers Raymond Frazier, Andrew Knee, and James Nicholson (“the Officers”), appeal
the district court’s denial of their motion for summary judgment on the bases of qualified and
statutory immunity in this excessive force case brought by Sara Knowlton, the widow and
Administrator of the estate of Brian Garber (“Garber”), who was shot and killed by the Officers.
We AFFIRM.
I.
At approximately 7:10 p.m. on March 16, 2014, the Richland County Sherriff’s Office
(“RCSO”) received a report of domestic violence at Garber and Knowlton’s home. Garber had a
history of mental-health issues including bipolar disorder, depression, and anxiety, although the

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Officers may not have been fully aware of that.1 By the time RCSO deputies arrived at the
house, Garber had left the home. Id. Knowlton told the responding deputies, including Deputy
Knee, that she feared for her safety and the safety of her children because Garber had just forced
his way into the house, pushed her onto a bed, and held her down by her “neck-shoulder area.”
Garber also pushed his mother, Connie Garber (“Mrs. Garber”), in the chest.
Knowlton and Mrs. Garber reluctantly signed statements and filled out domestic violence
packets, which allowed RCSO to file assault charges against Garber. The women “wanted
[Garber] to go to the hospital,” [R. 32-3 at PID 305], and “wanted mental health care for
[Garber], they did not want him to go to jail.” [Appellee’s Br. at 7]. Meanwhile, Deputy Frazier,
Sergeant Nicholson, and other officers arrived and searched for Garber at several properties
surrounding the residence. After failing to locate Garber, RCSO officers ended their search and
issued a bulletin alerting all local law enforcement that Garber was sought for arrest.
Garber’s mother and father returned to their home, which was across the street and up the
hill from the Knowlton-Garber home. Mr. Garber found Garber upstairs in his childhood
bedroom. Garber strongly implied that he had a gun and did not deny it when his mother asked
whether he had a gun:
[Brian] didn’t say he had a gun, he just said, you won’t like what’s under my
shirt. He had his hand under his shirt, and I’m the one that said really, Brian, now
you’re trying to tell us you have a gun?
And he goes like this (indicating). Yeah. And I knew he was -- I just knew it, I
knew he was just saying that because he wanted to be left alone. He’s never
handled a gun in his life.
[R. 32-3 at PID 308].
1 When Deputy Knee spoke to Knowlton and Garber’s mother before the shooting, they
discussed Garber’s medication and mental state.

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Roughly an hour later, Knowlton called 911 again because Garber had threatened her via
text message and told her that he had a gun. RCSO officers returned to the Garber-Knowlton
residence. Mrs. Garber answered the front door and informed the Officers that Garber was in her
home. When Officers Knee, Frazier, and Nicholson arrived at Garber’s parents’ home, Mr.
Garber answered the door and directed the Officers upstairs, where his son was sitting on the bed
in his childhood bedroom.
The Officers climbed the stairs and reached the doorway of the bedroom. The Officers
were equipped with, among other things, firearms with magazines, radios, pepper spray, Tasers,
and handcuffs. Each officer testified that upon arriving at the threshold of the unlit bedroom,
they saw Garber sitting upright on the bed, facing the door, and that he stated that he had a gun.
Sergeant Nicholson took a position at the right of the door. Deputy Knee took a position at the
left. Nicholson flipped the light-switch on and ordered Garber to show his hands, to which
Garber replied “No.”
Deputy Frazier moved between Knee and Nicholson and entered the bedroom. The
Officers were roughly five or six feet away from the bed on which Garber sat. Although Garber
appeared agitated, he did not verbally threaten the Officers. Garber told the Officers “shoot me,”
and Nicholson responded, “That’s not going to happen tonight. We’re going to get you some
help.” [R.32-14 at PID 757–59].
The Officers attempted to deescalate the situation over the course of forty-five seconds.
Garber appeared agitated and told the Officers “you can’t help me” and “F**k you guys, you’re
going to have to kill me, just shoot me.” [R.32-14 at PID 757–59]; [R.32-2 at PID 283]; [R.32-5
at PID 340]. As the Officers stood in the doorway, Garber brandished what appeared to be a

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rectangular object in a “tepee”2 fashion under his shirt and refused to obey the Officers’
commands to show his hands and drop his weapon. [R.32-14 at PID 756–57]. All three Officers
testified that they did not feel they needed to use their firearms during this time. [R.32-14 at PID
282–83]; [R.32-5 at PID 341, 343]; [R.32-2, PID 282–83].
According to the Officers, at some point, they heard a loud “pop” or “bang” that they
believed to be a gunshot coming from Garber’s direction, although none of the officers saw any
flash. All three officers then fired multiple fatal rounds at Garber. Id. Knee testified that before
firing his own weapon, he heard shots “from [his] left, which would have been Deputy Frazier.”
[R.32-5 at PID 342]. Frazier and Knee had already fired their weapons by the time Nicholson
fired his. Each Officer testified that he fired his weapon in response to a shot from Garber, and
was adamant that the sound he heard did not come from one of his fellow officers.
After the shooting, Knee visually checked over Frazier, because there was concern
Frazier may have been shot. None of the Officers saw a dark object, remote control, or anything
that could have looked like a gun on the bed or in Garber’s hand. The Officers then went
downstairs to the kitchen and waited together for approximately one hour. There, the Officers
2 Knee testified that Garber “had a very distinct rectangular-shaped impression
underneath his shirt in the center area of his chest.” [R.32-5 at PID 341].
Nicholson saw a protrusion under Garber’s shirt, and described the protrusion as being
“fully extended in the shirt to where it looked almost like a teepee.” [R.32-14 at PID 758].
Nicholson “perceived it to be a firearm 100 percent. It wasn’t like a finger or a sharp object or a
pencil.” [Id. at PID 759].
Frazier said Garber’s left hand was between his legs holding a can, and his right hand
was holding something under his shirt. Frazier described the object as appearing “to be the front
end of a Glock-style firearm, a squared front end firearm.” [R.32-2 at PID 282]. In front of the
grand jury, Frazier testified that Garber “all at once moves his shirt up and he raises his hand and
there’s a pop. . . . He was bringing his hand out of his shirt and moving it forward.” [Frazier Test.
23–24]. However, during his deposition, Frazier admitted Garber’s hand did not come out from
under his shirt, that Garber did not extend his arm, and that Garber did not lift his shirt and
present a firearm. [R.32-2 at PID 284–85].

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discussed that the object Garber had appeared to look like a Glock. The Officers had been
instructed not to discuss their observations with each other.
RCSO Deputy Zehner, who was on the staircase when the shooting occurred, took
photographs of the scene. The photos showed a remote control located on the bed next to
Garber. The remote was tested for prints and DNA; however, no latent prints were suitable for
comparison and the DNA swab collected was not sufficient for inclusion regarding Garber.
No gun was ever found. Ohio Bureau of Criminal Investigations (“BCI”) agent Cory
Momchilov served as lead investigator during the criminal investigation of the shooting.
Momchilov testified that investigators were unable to identify another source that could have
created the “pop” or “bang” sound the Officers described. Momchilov believed it was possible
that a gunshot from one of the Officers precipitated the shooting.
Momchilov prepared an investigative report and presented his findings to the Special
Prosecutors assigned to the case. The Special Prosecutors presented the case to a grand jury,
which declined to indict the Officers. RCSO also conducted an internal investigation into the
shooting. RCSO’s Use of Force/Firearms Review Board reviewed the internal investigation
findings and concluded the use of deadly force was reasonable.
II.
In January 2015, Knowlton, as Administrator of Garber’s estate, filed a multi-count
complaint alleging federal civil rights violations and state-law wrongful-death and negligent-
supervision claims. The complaint named Richland County, the RCSO, the Sheriff, and each of
the three Officers as defendants, individually and in their official capacities. After discovery, all
Defendants moved for summary judgment, arguing that they did not violate Garber’s
constitutional rights and their actions did not rise to a level that would strip them of immunity
under Ohio Revised Code § 2744.01.01.

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The district court granted summary judgment in favor of the County, the RCSO, and the
Sheriff. The district court permitted Knowlton to proceed against each of the Officers in their
individual capacities on her § 1983 claim for excessive force and her state-law claims for assault
and battery, wrongful death, survivorship, and willful, wanton, and reckless conduct. The
district court found a dispute of material fact regarding whether the Officers’ actions were
reasonable under the Fourth Amendment.
On appeal, the Officers argue that no reasonable jury could find that the Officers’ actions
were objectively unreasonable so as to deprive them of qualified immunity, or that the Officers
acted with the degree of culpability necessary to strip them of immunity under Ohio law.
III.
We review de novo a district court’s denial of summary judgment on the grounds of
qualified immunity. Pollard v. City of Columbus, Ohio, 780 F.3d 395, 402 (6th Cir. 2015).
Knowlton bears the burden of demonstrating that the Officers are not entitled to qualified
immunity. Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007). However, we
view the facts and any inferences reasonably drawn from them in the light most favorable to
Knowlton. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013).
IV.
As a threshold matter, we address Knowlton’s claim that we have no jurisdiction to
entertain the Officers’ interlocutory appeal. “The denial of a summary judgment motion usually
presents neither a final appealable order nor an appealable interlocutory order.” Floyd v. City of
Detroit, 518 F.3d 398, 404 (6th Cir. 2008). However, an exception to that rule applies when a
district court rejects a defendant’s assertion of the qualified immunity defense “to the extent that
the appeal presents a question of law and does not require us to resolve disputes of material
facts.” Jefferson v. Lewis, 594 F.3d 454, 459 (6th Cir. 2010) (citations omitted). The Officers

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“must be willing to concede the plaintiff’s version of the facts.” Id. (citing Morrison v. Bd. of
Trustees of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009). We thus exercise our jurisdiction to
hear the Officers’ appeal accepting Knowlton’s version of the facts. “[I]f[,] after our review we
determine that resolution of the legal questions turns on which version of disputed facts one
believes, we must allow the case to proceed in the trial court.” Id.
V.
Government officials are immune from civil liability under 42 U.S.C. § 1983 when
performing discretionary duties, provided “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). When a defendant raises qualified immunity, the burden is
on the plaintiff to demonstrate that the official is not entitled to qualified immunity, Silberstein v.
City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006), by alleging “facts sufficient to indicate that
the [government official’s] act in question violated clearly established law at the time the act was
committed.” Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992).
To determine whether a government official is entitled to qualified immunity, we analyze
(a) whether the facts, when taken in the light most favorable to the party asserting the injury,
show the officer’s conduct violated a constitutional right; and (b) if so, whether that
constitutional right was clearly established such that a “reasonable official would understand that
what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (citation and
internal quotation marks omitted), overruled on other grounds by Pearson, 555 U.S. at 229.
A.
Under the first Saucier prong, the court must identify “the specific constitutional right
allegedly infringed,” Graham v. Connor, 490 U.S. 386, 394, and determine whether that right

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was violated. Knowlton alleges that the Officers used excessive force in seizing her husband.
[R.3 at PID 62]. In Fourth Amendment claims, we apply “the objective reasonableness standard,
which depends on the facts and circumstances of each case viewed from the perspective of a
reasonable officer on the scene and not with 20/20 hindsight.” Jefferson, 594 F.3d at 460–61
(citation and internal quotation marks omitted). “[T]he use of deadly force is only
constitutionally permissible if ‘the officer has probable cause to believe that a suspect poses a
threat of serious physical harm, either to the officer or to others.’” Livermore ex Rel Rohm v.
Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (quoting Tennessee v. Garner, 471 U.S. 1, 11
(1985)).
Although “[a]s a matter of law, an unarmed and nondangerous suspect has a
constitutional right not to be shot by police officers,” Floyd, 518 F.3d at 407, “whether a suspect
is ‘nondangerous’ is based on the facts known to the officer at the time of the incident.”
Jefferson, 594 F.3d at 461. Our reasonableness analysis “must embody allowance for the fact
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.” Graham v. Connor, 490 U.S. 386, 396–97 (1989). Nevertheless, “[e]ven a split-
second decision, if sufficiently wrong, may not be protected by qualified immunity.” Bouggess
v. Mattingly, 482 F.3d 886, 894 (6th Cir. 2007).
Here, the Officers were all justifiably concerned that they were in danger under the
circumstances. As the district court explained:
The undisputed facts are that Brian Garber, a mentally disturbed
man, went out of control. After assaulting his wife, he retreated to
an upstairs bedroom in his parents’ home. Members of his family
believed he was armed, communicated such to the 911 dispatcher
who in turn communicated it to the law enforcement officers in the
field, and when three sheriff’s deputies arrived in response to the

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domestic violence complaint, Brian Garber told them he had a gun.
He menacingly pointed what appeared to be a gun from under his
shirt. The deputies tried to calm Brian Garber down and get him to
surrender, but he refused to raise his hands and said they would
have to shoot him.
[R.39 at PID 1247]. Crucially, however, each Officer testified that he did not feel the use of
deadly force was warranted until he heard the “pop” sound. The investigations that followed
revealed that Garber did not have a gun and that the only shots fired came from the Officers.
BCI was unable to reproduce any “popping” sound that could have come from Garber. The
district court explained:
These facts put the Court in the unusual situation where the
testimony of all three deputies involved in the deadly shooting
contradicts the objective facts of that event. See Jefferson,
594 F.3d at 462 (“Though we are hesitant to doubt Officer Lewis’s
testimony that he saw a flash, the court may not simply accept
what may be a self-serving account by the police officer. It must
look at the circumstantial evidence that, if believed, would tend to
discredit the police officer’s story.”).
Because Brian Garber was unarmed and produced no “pop,” the
Court can only conclude that one of the deputies fired the first shot
and that none of the deputies fired in response to any gunshot
sound from Brian Garber. Thus, each of the deputies is either
mistaken or lying about shooting in response to a gunshot sound
from Brian Garber or otherwise. This is not a question of law for
the Court, but a question of fact and credibility for a jury to decide.
[R.39 at PID 1250].
We agree. We lack jurisdiction to resolve factual disputes, Romo v. Largen, 723 F.3d
670, 674–75 (6th Cir. 2013), and we must view the facts in the light most favorable to Knowlton:
i.e., that although the Officers did not perceive that deadly force was necessary, one of the
Officers nevertheless shot Garber, and the other Officers fired in response to that Officer’s shot.
[Appellee’s Br. at 17 n. 13, 31]. The record contains adequate evidentiary support for

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Knowlton’s theory, under which Garber’s Fourth Amendment right to be free from excessive
force was violated.
B.
The second Saucier inquiry is whether the Officers’ actions were objectively
unreasonable in light of a clearly established right. “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.
194, 202 (2001). It was.
We have found police use of deadly force reasonable under specific circumstances, even
against an unarmed individual, where the individual indicates he or she is armed, as Garber did
here. Crucially, however, we have found such police action reasonable when officers are
confronted with additional indicia of immediate danger, such as a menacing gesture or other
indication that the individual intends to use his or her weapon. See Bouggess v. Mattingly,
482 F.3d 886, 896 (6th Cir. 2007) (“The cases [the defendant] cites all stand for the proposition
that, when a police officer both knows a defendant has a weapon and has a reasonable belief that
the weapon will be used against him or others, the officer is justified in using deadly force.
However, 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.”)
(emphasis in original) (citations omitted). See also Thomas v. City of Columbus, Ohio, 854 F.3d
361, 366 (6th Cir. 2017) (“To be clear, we do not hold that an officer may shoot a suspect merely
because he has a gun in his hand. Whether a suspect has a weapon constitutes just one
consideration in assessing the totality of the circumstances.”).

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The Officers rely primarily on Pollard v. City of Columbus, Ohio, 780 F.3d 395 (6th Cir.
2015), and Simmonds v. Genesee County, 682 F.3d 438 (6th Cir. 2012). Both are
distinguishable. In Pollard, police officers attempted to arrest Abram Bynum, a suspect in a rape
case. Bynum led police on a high-speed car chase before eventually crashing into a tractor
trailer. Id. at 403. After the crash, Bynum reached down to the floor of his vehicle and clasped
his hands into a shooting posture, pointing at the officers on the scene. When Bynum reached
his pointed shooting hands at the officers, the officers shot and killed him. Id. Considering the
totality of the circumstances, we explained that it was these “gestures suggesting [Bynum] had a
weapon” and “Bynum’s sudden movement,” particularly after he “had proven he would do
almost anything to avoid capture” that supported our finding that the officers were entitled to
qualified immunity. Id. (citations omitted).
In Simmonds, police officers responding to a 911 call fatally shot Kevin Simmonds, who
“had been drinking, was displaying mentally unstable behaviors, and was possibly suicidal.” Id.
at 445. Officers approached Simmonds, who was sitting in his vehicle, and ordered Simmonds
to show his hands. Simmonds refused to comply. Officers then attempted to use a Taser to de-
escalate, but Simmonds was wearing a heavy jacket and the Taser did not properly attach. Id. at
441. Simmonds then “punched his hands out of the open car window, in a shooting position,
with what [the officers] believed was a silver handgun.” Id. at 442. It turned out that Simmonds
was holding a silver and blue cell phone. Nevertheless, we found the officers were entitled to
qualified immunity because it was reasonable that the officers believed Simmonds had a gun and
that his sudden movement of pointing it at the officers was an imminent threat. Id.
Pollard and Simmonds are both distinguishable. In both cases, the officers’ belief that
they faced immediate danger did not rest only on indications that Bynum and Simmonds were

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armed; the belief also rested on Bynum’s and Simmonds’ menacing gestures, which were
reasonably interpreted as demonstrating an intention to shoot. In the absence of that indicium of
immediate threat here, the Officers point to the “pop” sound as the factor precipitating the
shooting. However, because Garber did not have a gun, and investigators were unable to find a
source or explanation for the “pop” or “bang,” whether the Officers actually heard the sound, and
whether it was coming from Garber, as opposed to one of their fellow Officers or some other
source, are disputed material facts that preclude summary judgment. See, e.g., Sova v. City of
Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998) (“This Court has established that summary
judgment is inappropriate where there are contentious factual disputes over the reasonableness of
the use of deadly force.”); Jefferson, 594 F.3d at 463 (“In light of the competing inferences one
might draw from these facts and their effect on the question of whether Officer Lewis’s actions
were objectively unreasonable, we agree with the district court that the jury should find the facts
that determine whether Officer Lewis is entitled to qualified immunity.”); Craighead v. Lee,
399 F.3d 954, 962 (6th Cir. 2005) (denying qualified immunity when an officer shot an
individual holding a gun when testimony diverged as to whether the gun was pointed upward or
at the officer). See also Floyd, 518 F.3d at 408 (affirming the denial of summary judgment when
an officer believed an unarmed individual fired a weapon when, in fact, another officer had fired
the weapon because that argument “fails to address the true issue . . . namely, whether his
mistaken perception and response were themselves reasonable. Plainly, not all mistakes—even
honest ones—are objectively reasonable. The bare assertion that [the officer] allegedly formed
an honest but mistaken belief thus does little to resolve the key issue of whether his belief and
subsequent actions were nonetheless objectively unreasonable.”).

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Given the Officers’ testimony that the threat Garber posed was not imminent and did not
justify using deadly force until the Officers heard the “pop” sound, together with the evidence
that one of the Officers fired at Garber without hearing any sound, the district court did not err in
in denying summary judgment on the qualified immunity issue.
VI.
Knowlton asserted state-law claims against the Deputies for assault and battery, wrongful
death, survivorship, and willful, wanton, and reckless conduct. [R.3 at PID 61–66]. The parties
agree that the immunity analysis under Ohio Rev. Code Ann. § 2744 for these state-law tort
claims is nearly identical to the above analysis for qualified immunity under 42 U.S.C. § 1983.
[Appellants’ Br. at 27–28]; [Appellee’s Br. at 48–49].
Employees of an Ohio political subdivision are immune from suit for negligent torts
arising from any act or omission in connection with a government function. See Burgess v.
Fischer, 735 F.3d 462, 479 (6th Cir. 2013). This immunity does not extend to actions “outside
the scope of [their] employment or official responsibilities” or “committed with malicious
purpose, in bad faith, or in a wanton or reckless manner.” Id. (quoting Ohio Rev. Code Ann. §
2744.03(A)(6)(b)) (internal quotation marks omitted).
Here, the district court denied the Officers summary judgment on these claims, stating
that because “there is a dispute of material fact as to whether the actions of [the Officers] were
reasonable under the Fourth Amendment . . . there is also a dispute of material fact as to whether
the actions of those same Defendants were reckless for the purposes of Ohio tort immunity.”
[R.39 at PID 1260].
“‘[R]eckless conduct’ is the ‘conscious disregard of or indifference to a known or
obvious risk of harm . . . that is unreasonable under the circumstances and is substantially greater

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than negligent conduct.’” Burgess, 735 F.3d at 479–80 (internal citations omitted). If the jury
believes Knowlton’s version of events, it could find that the Officers acted recklessly.
Therefore, the district court properly denied summary judgment on Knowlton’s Ohio state-law
claims.
VII.
For the foregoing reasons, we AFFIRM.

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