Villarreal v. R.J. Reynolds Tobacco Company, Pinstripe, Inc. Motion for Leave to File En Banc Amicus Curiae Brief

    ______________ No. ______________
In  The

Supreme Court of tlje fHntteti States!
Pa t t i St e v e n s -R u c k e r ,

A d m in is t r a t o r  o f  th e  E s ta te  o f  Ja s o n  W h it e , 
D e c e a s e d ,

Petitioner,

v.
S e r g e a n t  J o h n  F r e n z  (#5141) a n d  

O f f ic e r  D u s t in  M cK ee  (#2611),
Respondents.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Sh e r r il y n  A. Ifil l  
Director-Counsel 

J a n a i S. N e l s o n  
Sa m u e l  S p it a l  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , In c . 
40 Rector Street 
5th Floor
New York, NY 10006

November 21, 2018

D a n ie l  S. H a r a w a * 
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , I n c . 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Petitioner 
Patti Stevens-Rucker

* Counsel of Record

mailto:dharawa@naacpldf.org


1

QUESTION PRESENTED

Sergeant John Frenz and Officer Dustin McKee 
shot Jason White—a decorated veteran suffering a 
mental health crisis—several times. While Mr. 
White lay bleeding on the ground, another officer 
handcuffed Mr. White and rolled him onto his 
stomach. Sergeant Frenz and Officer McKee were 
both trained as first responders, yet neither tried to 
help Mr. White even though they could “clearly see 
he was dying.” Instead, they stood over him and 
watched him bleed to death for the fifteen minutes it 
took the ambulance to arrive.

The district court held that the officers’ failure to 
assist Mr. White as he lay bleeding to death violated 
the Fourteenth Amendment, but a divided Sixth 
Circuit reversed. Relying on a Ninth Circuit 
decision, the majority held that the officers satisfied 
their constitutional obligations by “summoning aid” 
because police have no constitutional duty “to 
intervene personally.” By contrast, the Eighth and 
Tenth Circuits have held that police officers trained 
in first aid are constitutionally obliged to assist 
persons in their custody who need care when it is 
safe to do so.

The question presented is:
Are there circumstances in which police officers 

are constitutionally obligated to help a person 
injured during arrest, as the Eighth and Tenth 
Circuits have held, or do officers necessarily satisfy



11

their constitutional obligations by radioing for help, 
as the Sixth and Ninth Circuits have held?



PARTIES TO THE PROCEEDINGS

Petitioner Patti Stevens-Rucker, as 
Administrator of the Estate of Jason White, was 
plaintiff-appellee and cross-appellant in the court of 
appeals.

Respondents Sergeant John Frenz (#5141) and 
Officer Dustin McKee (#2611) were defendant- 
appellants and cross-appellees in the court of 
appeals.

iii



IV

CORPORATE DISCLOSURE STATEMENT

Counsel for Patti Stevens-Rucker, the NAACP 
Legal Defense and Educational Fund, Inc., is a non­
profit organization that has not issued shares of 
stock or debt securities to the public and has no 
parent corporation, subsidiaries, or affiliates that 
have issued shares of stock or debt securities to the 
public.



V

TABLE OF CONTENTS

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING........................... iii

CORPORATE DISCLOSURE STATEMENT......... iv

TABLE OF AUTHORITIES.................................... viii

OPINIONS BELOW......................................................1

JURISDICTION............................................................ 1

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED.......................................... 2

INTRODUCTION.........................................................4

STATEMENT OF THE CASE.....................................6

A. Sergeant Frenz and Officer McKee 
Encountered Jason White While He 
Was Suffering a Mental Health Crisis
and Shot Him Several Times..........................6

B. Sergeant Frenz and Officer McKee Did 
Not Provide Jason White Any Medical 
Aid While He Bled to Death in Front
of Them........................................................... 10

C. The District Court Denied the Officers
Summary Judgment...................................... 11

PAGE



VI

D. A Divided Sixth Circuit Reversed the
District Court..................................................13

REASONS FOR GRANTING THE PETITION.......16

I. THE CIRCUITS ARE DIVIDED ON
WHETHER POLICE EVER HAVE A 
DUTY TO RENDER AID..................................... 18

A. The Sixth and Ninth Circuits Have
Held Police Officers Necessarily 
Satisfy Their Constitutional 
Obligations by Summoning Aid and 
Have No Duty to Intervene 
Personally....................................................... 20

B. The Eighth and Tenth Circuits Have
Held There Are Circumstances When 
Police Officers Have a Constitutional 
Obligation to Personally Render Aid........... 23

II. THE QUESTION PRESENTED IS
IMPORTANT AND RECURRING......................28

CONCLUSION............................................................ 31

TABLE OF CONTENTS
(CONTINUED)

PAGE



vii
TABLE OF CONTENTS

(CONTINUED)

PAGE

APPENDIX

Opinion of the United States Court of
Appeals for the Sixth Circuit....................App. la

Opinion and Order of the United States 
District Court for the Southern 
District of Ohio.........................................App. 35a

Order of the United States Court of
Appeals for the Sixth Circuit..................App. 86a



V l l l

TABLE OF AUTHORITIES

PAGE(S)

Adams v. Custer,
No. 14 Civ. 80403(DTH),
2016 WL 155081
(S.D. Fla. Jan. 12, 2016)................................  22-23

Ashworth v. Round Lake Beach Police Dep’t,
No. 03 Civ. 7011 (PEP),
2005 WL 1785314
(N.D. 111. July 21, 2005)........................................27

Estate of Booker v. Gomez,
745 F.3d 405 (10th Cir. 2014)......................passim

City of Canton v. Harris,
489 U.S. 378 (1989).........................................23, 29

City of Revere v. Massachusetts General 
Hospital,
463 U.S. 239 (1983)...................................... passim

Estelle v. Gamble,
429 U.S. 97 (1976).....................................12, 20, 27

Henriquez v. City of Bell,
No. 14 Civ. 196(GW),
2015 WL 13423888
(C.D. Cal. Sept. 10, 2015).....................................22

Kingsley v. Hendrickson,
135 S. Ct. 2466 (2015)...........................................23



IX

CASES:

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

Kisela v. Hughes,
138 S. Ct. 1148 (2018)...........................................30

Maddox v. City of Los Angeles,
792 F.2d 1408 (9th Cir. 1986)........... 16, 19, 20, 22

McRaven v. Sanders,
577 F.3d 974 (8th Cir. 2009).......................passim

New Jersey v. T.L.O.,
469 U .S . 325 (1985)......................................... 28-29

Petro v. Town of W. Warwick ex rel. Moore,
889 F. Supp. 2d 292 (D.R.I. 2012).......................27

Reyes ex rel. Reyes v. City of Fresno,
No. 13 Civ. 0418(LJO),
2013 WL 2147023
(E.D. Cal. May 15, 2013)..................................... 23

Sparks v. Susquehanna County,
No. 05 Civ. 2274(JMM),
2009 WL 922489
(M.D. Pa. Apr. 3, 2009).........................................27

Stogner v. Sturdivant,
No. 10 Civ. 125(JJB),
2010 WL 4056217
(M.D. La. Oct. 14, 2010)....................................... 23



X

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES:

Tate v. Dunnigan,
No. 06 Civ. 169(RAE),
2007 WL 4353456
(M.D.N.C. Dec. 7, 2007)........................................23

Tennessee v. Garner,
471 U.S. 1 (1985)................................  30

Wallace v. Jackson,
667 F. Supp. 2d 1267 (M.D. Ala. 2009)...............27

CONSTITUTIONAL PROVISION:

U.S. Const, amend. XIV...........................................2, 5

STATUTES AND RULES:

28 U.S.C. § 1254............................................................ 1

42 U.S.C. § 1983............................................................2

Sup. Ct. R. 10 .............................................................. 16



XI

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES:

Bureau of Justice Statistics, Arrest-Related 
Deaths Program Redesign Study, 2015- 
16: Preliminary Findings (Dec. 2016), 
https://www.bjs.gov/content/pub/pdf7ard 
prsl516pf_sum.pdf................................................17

Dep’t of Justice, FBI, 2015 Crime in the 
United States, https://ucr.fbi.gov/crime- 
in-the-u.s/2015/crime-in-the-u.s.- 
2015/persons-arrested/persons-arrested............. 29

Ted R. Miller et al., Perils of Police Action:
A Cautionary Tale from US Data Sets,
23 Injury Prevention (July 25, 2016), 
https://injuryprevention.bmj.com/conten 
t/23/1/27.................................................................. 17

Reuters, Reuters Finds 1,005 Deaths in 
U.S. Involving Tasers, Largest 
Accounting to Date (Aug. 22, 2017), 
https://www.reuters.com/article/us-axon-
taser-toll/reuters-finds-1005-deaths-in- 
u-s-involving-tasers-largest-accounting- 
to-date-idUSKCNlB21AH...................................17

Wash. Post, Fatal Force 2015,
https://www.washingtonpost.com/graphi 
cs/national/police-shootings/?..............................17

https://www.bjs.gov/content/pub/pdf7ard
https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested
https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested
https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested
https://injuryprevention.bmj.com/conten
https://www.reuters.com/article/us-axon-
https://www.washingtonpost.com/graphi


PETITION FOR WRIT OF CERTIORARI

Patti Stevens-Rucker, as Administrator of the 
Estate of Jason White, respectfully petitions for writ 
of certiorari to review the judgment of the United 
States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The order of the United States Court of Appeals 
for the Sixth Circuit denying rehearing en banc is 
reproduced at App. 86a-87a. The opinion of the 
United States Court of Appeals for the Sixth Circuit 
affirming in part and reversing in part the judgment 
of the district court is reproduced at App. la-34a. 
The opinion of the United States District Court for 
the Southern District of Ohio granting summary 
judgment in part and denying summary judgment in 
part is reproduced at App. 35a-85a.

JURISDICTION

The court of appeals denied Ms. Stevens- 
Rucker’s petition for rehearing en banc on August 
24, 2018. This Court has jurisdiction under 28 U.S.C. 
§ 1254.



2

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the 
United States Constitution provides:

All persons born or naturalized in the 
United States, and subject to the 
jurisdiction thereof, are citizens of the 
United States and of the State wherein 
they reside. No State shall make or 
enforce any law which shall abridge the 
privileges or immunities of citizens of 
the United States; nor shall any State 
deprive any person of life, liberty, or 
property, without due process of law; 
nor deny to any person within its 
jurisdiction the equal protection of the 
laws.

U.S. Const, amend XIV § 1.
Title 42 U.S.C. § 1983 provides:

Every person who, under color of any 
statute, ordinance, regulation, custom, 
or usage, of any State or Territory or 
the District of Columbia, subjects, or 
causes to be subjected, any citizen of 
the United States or other person 
within the jurisdiction thereof to the 
deprivation of any rights, privileges, or 
immunities secured by the Constitution 
and laws, shall be liable to the party 
injured in an action at law, suit in



3

equity, or other proper proceeding for 
redress . . . .

42 U.S.C. § 1983.



4

INTRODUCTION

Police in America arrest over 10 million people 
each year. Each year, over 55,000 people are injured 
or die during arrest. And, on average, there are 135 
arrest-related deaths each month. This case asks the 
Court to answer the question it left open 35 years 
ago in City of Revere v. Massachusetts General 
Hospital, 463 U.S. 239 (1983), and define police 
officers’ “due process obligations” to provide medical 
care to persons under arrest. Specifically, this case 
asks whether the Constitution allows for police 
officers to shoot someone and then stand over him 
and watch him die for fifteen minutes without trying 
to render the aid that they were trained to provide.

Jason White, a decorated Iraq War veteran, 
suffered mental health issues triggered by his 
military service. One November morning, Mr. White 
was suffering a mental health crisis and, while 
holding a knife, mistakenly entered an apartment 
that he believed was his. Police officers responded to 
the scene. They recognized Mr. White had a “vacant” 
look in his eyes and was “out of it.” Even so, when 
Mr. White did not comply with their commands, the 
officers shot Mr. White several times—in the 
shoulder, back, and directly in the chest.

After repeatedly shooting Mr. White, Sergeant 
John Frenz and Officer Dustin McKee stood over Mr. 
White for fifteen minutes as they waited for an 
ambulance to arrive. Both officers were trained as 
first responders, yet neither tried to help Mr. White 
as he was on the ground gushing blood. The district



5

court held that the officers violated Mr. White’s due 
process right to medical care. A divided Sixth Circuit 
reversed, holding that the officers satisfied their 
constitutional obligations by “summoning aid” 
because they had no duty to “intervene personally.”

Although the Court has said the Fourteenth 
Amendment requires police to provide medical care 
to persons in their custody, it has twice declined to 
define what that care looks like. The Court has, 
however, made clear that the required level of care 
as a matter of due process for persons in police 
custody is at least as great as the level of care 
required by the Eighth Amendment for convicted 
prisoners. See Revere, 463 U.S. at 244.

The courts of appeals disagree about the level of 
care police must personally provide to arrestees who 
are injured while in their custody. The Eighth and 
Tenth Circuits have held there are occasions in 
which the Fourteenth Amendment obligates officers 
to personally provide care to an arrestee. On the 
other hand, the Sixth and Ninth Circuits have held 
that officers necessarily satisfy their constitutional 
obligations by summoning aid. That position would 
mean the level of care required for arrestees is even 
less than the Eighth Amendment floor, which is 
plainly inconsistent with this Court’s precedent.

Given the momentousness of the question 
presented, and the fact that the courts of appeals are 
divided over its answer, the Court should take this 
chance to define an arrestee’s due process right to 
medical care while in police custody.



STATEMENT OF THE CASE

6

Decorated veteran Jason White was 31 years old 
when he was shot and killed by police. App. 2a. He 
had been honorably discharged from the U.S. Army 
just three years prior, after being deployed for 
almost a year in Iraq and receiving many honors for 
his service. ECF No. 87-32 at 3-4 (forensic 
psychologist evaluation).1

After leaving the military, Mr. White was 
hospitalized “numerous times” at Veterans 
Administration Hospitals and was diagnosed with 
paranoid schizophrenia and depression, “believing he 
was under surveillance and fearful for his life.” Id. at 
4. Three days before his death, Mr. White went to 
the VA to report that he had not been sleeping, that 
he was experiencing paranoia, and that his 
medications were not working. Id. at 5. The VA 
doctor who examined Mr. White noted that his 
rapport was “poor” and that he was “delusional” and 
generally “deteriorating.” Id. Yet, because Mr. White 
was not “deemed as a threat to himself or others,” he 
was “referred for further outpatient care.” Id.

A. Sergeant Frenz and Officer McKee 
Encountered Jason White While He Was 
Suffering a Mental Health Crisis and 
Shot Him Several Times.

In the early morning hours of November 17, 
2013, Ashley Cruz woke up to find a shirtless man 1

1 “ECF” citations are to the record as reflected on the district 
court’s public docket.



7

holding a kitchen knife inside her apartment. App. 
36a; App. 2a. Ms. Cruz asked the man to leave, but 
he just kept “looking around.” App. 36a. The man 
was Jason White. Ms. Cruz testified that Mr. White 
“appeared confused and asked [Ms.] Cruz what she 
was doing in his home.” Id. “[Mr.] White then began 
exiting and reentering the apartment, stating that 
something happened to him and that something was 
not right.” Id. Mr. White eventually left the 
apartment long enough for Ms. Cruz to lock the door. 
Id. She called 911 and told the operator that Mr. 
White “may have been on drugs because [he] was not 
making any sense.” App. 37a.

Officer Don Alderman received the dispatch call 
of a “man with a knife.” App. 4a. The dispatcher 
warned that the suspect was “out of it. He was 
talking but it made no sense.” App. 37a (quotation 
marks omitted). Officer Alderman went to the scene. 
App. 38a. He saw Mr. White in a breezeway and 
approached him with his gun drawn. Id.

From 45-60 feet away, Officer Alderman ordered 
Mr. White to show him his hands. Id. Mr. White’s 
hands were empty. Id. Officer Alderman then asked 
Mr. White to turn around. Id. Mr. White did so, 
dropping his hands. Id. Officer Alderman yelled for 
Mr. White to put his hands back up. Id. Instead, Mr. 
White turned back around. Id. As Officer Alderman 
explained, Mr. White was “looking around and not 
really even looking at [him], but almost just kind of 
looking through [him].” App. 4a.



8

Officer Alderman unholstered his taser and 
shouted at Mr. White to get down. App. 38a. When 
Mr. White did not heed the command, Officer 
Alderman tasered Mr. White to the ground. App. 
38a-39a. As Officer Alderman approached, Mr. 
White “got up swiftly” with a kitchen knife in hand 
App. 39a. Office Alderman testified that Mr. White 
then started towards him, so he grabbed his gun and 
shot at Mr. White but missed. Id. Mr. White ran 
away. Id. Officer Alderman did not give chase. Id.

Sergeant John Frenz heard a report of what 
happened and “ordered a ‘10-3’ run,” meaning an 
officer was in trouble and “that every officer able 
[should] respond.” App. 40a. He then went to the 
scene, where he met Officers Dustin McKee and 
Jeffrey Kratch. Id. Sergeant Frenz ordered the two 
officers to set up a perimeter. Id.

Sergeant Frenz and Officer Kratch found Mr. 
White crouched down in a fenced-off area where the 
air conditioning units were located. App. 5a-6a. 
There was an exit on each end of the fenced area. 
App. 41a. Sergeant Frenz approached from one end 
with his gun drawn and “ordered [Mr.] White to 
show his hands.” Id. Mr. White was still holding a 
knife. Id. Officer Kratch approached from the other 
end and tasered Mr. White, but it was “not effective,” 
instead causing Mr. White to run “toward the 
opening” Sergeant Frenz was near. App. 41a-43a.

Although Mr. White was still inside the fenced 
enclosure, Sergeant Frenz fired twice at Mr. White, 
hitting him once in the shoulder. App. 43a. Officer



9

McKee had arrived by then and “saw the blood 
spatter from [Mr.] White’s back.” App. 6a. Mr. White 
“stumbled back” against the wall and Sergeant 
Frenz “knew he had made contact.” App. 44a. Mr. 
White then fled, making it out of the enclosure and 
around the corner of the building. App. 44a-45a.

Sergeant Frenz and Officers McKee and Kratch 
chased Mr. White through a breezeway. Id. Mr. 
White was limping now. App. 45a. Officer McKee 
took aim and shot twice at Mr. White, striking him 
in the back. App. 46a. Mr. White kept moving and 
Officer McKee again ordered Mr. White to stop. Id.

Mr. White stopped at the end of the breezeway 
and turned around. Id. He had a “blank” look on his 
face. Id. Officer McKee then fired two shots at Mr. 
White’s “center mass,” hitting his target. App. 47a. 
Mr. White fell to the ground, first to his knees, then 
on to his back. Id.

According to Officer McKee, Mr. White “was 
lying on his left side with his right arm underneath 
his body [and was] using his left arm to push himself 
off of the ground.” Id. Officer Kratch did not “recall 
seeing [Mr.] White trying to get up off of the 
ground,” however. Id. Officer McKee then fired two 
more shots at Mr. White while he was on the ground, 
hitting him directly in the chest. Id.



10

B. Sergeant Frenz and Officer McKee Did 
Not Provide Jason White Any Medical 
Aid While He Bled to Death in Front of 
Them.

As Mr. White lay bleeding, he tried to put the 
knife to his own neck. App. 47a. Officer Kratch 
walked over and took the knife from Mr. White’s 
hands, rolled him onto his stomach, and handcuffed 
him. App. 48a. Officer Kratch then left the scene. 
App. 48a n.10.

Mr. White was “gasping for air” and the officers 
“could see blood pumping out of [his] chest.” App. 
48a. An unidentified officer told dispatch that Mr. 
White was going to need a medic, and dispatch 
responded that “they were going to get a squad” to 
the scene. Id.

Sergeant Frenz and Officer McKee stood over 
Mr. White as they waited for the ambulance. See 
App. 47a-48a. Both officers testified that they were 
trained in first aid and CPR. See EOF No. 71 at 18 
(aff. of Dustin McKee); EOF No. 79 at 24 (aff. of 
Jason Frenz). Yet neither tried to help Mr. White as 
he was bleeding on the ground from the gunshots 
they had fired. App. 48a. As Officer McKee 
explained, rather than assist Mr. White, who was 
now unarmed and handcuffed, he “kept [his] firearm 
aimed at him” even though he “could clearly see he 
was dying.” EOF No. 71 at 15.

The ambulance arrived 15 minutes later. App. 
7a. Mr. White was dead by the time it got there. Id.



11

C. The District Court Denied the Officers 
Summary Judgment.

Ms. Stevens-Rucker sued under 42 U.S.C § 1983 
alleging Sergeant Frenz and Officer McKee violated 
her son’s Fourth Amendment right to be free from 
excessive force and denied him adequate medical 
care in violation of the Fourteenth Amendment. App. 
49a.2 The officers moved for summary judgment, 
arguing they were entitled to qualified immunity on 
all claims.

The district court held Officer McKee was not 
entitled to qualified immunity on a claim of 
excessive force for the shots he fired “while [Mr.] 
White was either on the ground or attempting to 
stand back up.” App. 71a.3 The court explained that 
“the law clearly established that officers could not 
use deadly force unless they had probable cause to 
believe that an individual posed a serious risk of 
harm to the officers or others.” App. 73a (quotation 
marks omitted). Here, given that Officer McKee 
“witnessed [Sergeant] Frenz shoot [Mr.] White and 
had fired his own gun two times meaning he knew 
White was injured,” the court held that a reasonable 
officer would not “have felt immediately threatened

2 In addition to filing related state law claims, Ms. Stevens- 
Rucker alleged that the City of Columbus and its Police Chief 
failed to “properly train or supervise the officers and [had] 
customs or policies ratifying constitutional violations.” App. 
49a-50a.
3 The court held that Sergeant Frenz and Officer McKee were 
entitled to summary judgment on excessive force claims based 
on the first shots they fired at Mr. White. See App. 56a-71a.



12

by a knife wielding suspect on the ground ten to 
fifteen feet away suffering from at least one gunshot 
wound.” Id.

As for the denial of medical care claim, the 
officers asserted that they were entitled to summary 
judgment by arguing that “a police officer discharges 
his [constitutional] duty to render medical aid by 
promptly calling for medical help.” App. 75a. Ms. 
Stevens-Rucker maintained the opposite: “that an 
officer does not [necessarily] discharge his duty to 
render medical aid solely by calling for aid for a 
victim of police use of force.” Id.

The district court agreed with Ms. Stevens- 
Rucker. It explained that “the Fourteenth 
Amendment right of pretrial detainees to adequate 
medical care is, and has long been, clearly 
established.” App. 79a (quotation marks omitted). 
The district court traced the history of this long- 
established rule. In Estelle v. Gamble, 429 U.S. 97, 
104-05 (1976), this Court held that “intentionally 
denying or delaying access to medical care violates 
the constitutional rights of a prisoner.” App. 74a 
(quotation marks omitted). Then, less than 10 years 
later, this Court held that, at a minimum, the same 
applies for “ [p]retrial detainees.” Id. (citing Revere, 
463 U.S. at 244).

The district court explained that under this 
decades-old precedent, the officers “could not ignore 
[Mr.] White’s urgent medical needs as he was lying 
in the grass solely because an officer had called for 
an ambulance which did not arrive for at least 10



13

minutes.” App. 79a. The officers “knew [Mr.] White 
was injured and . . . knew they shot him.” App. 78a- 
79a. There was thus “sufficient circumstantial 
evidence to show that both officers perceived facts 
allowing them to infer a substantial risk to White, 
that both drew the inference the risk could cause 
harm, and then that both disregarded the risk.” App. 
79a. The court held that the officers were not 
entitled to summary judgment because their 
“decision not to provide medical care” violated 
clearly established law. Id.

D. A Divided Sixth Circuit Reversed the 
District Court.

A divided Sixth Circuit reversed. In reversing 
the excessive force claim, the majority held that the 
district court improperly distinguished the shots 
Officer McKee fired while Mr. White was still 
standing from the shots he fired while Mr. White 
was on the ground. App. 20a. The majority went on 
to hold that, under its view of the evidence, it was 
reasonable for Officer McKee, based on his 
“unrebutted affidavit testimony,” to “continue G to 
use his firearm to stop what he justifiably perceived 
as an immediate threat to his safety.” App. 22a.

Judge Stranch dissented. She believed that Sixth 
Circuit precedent required the court to “disaggregate 
McKee’s three spates of gunfire” because his 
“testimony indicates that he had sufficient time to 
evaluate White’s movements, discern his intent to 
get back up, and elect to fire again.” App. 30a-31a 
(Stranch, J., dissenting). The facts showed that Mr.



14

White was “15 feet from the officers in an open field, 
and there were no civilians in the immediate 
vicinity.” App. 31a. Thus, to Judge Stranch, it was 
“simply not a plausible argument that [Officer] 
McKee was in immediate danger when he delivered 
the fatal shots.” Id.

Regarding the denial of medical care claim, 
although no party had argued that officers are 
always required to provide medical aid on the scene, 
the majority framed the case as if that were the 
issue. The majority explained it had found “no 
authority” that “establishes an affirmative duty on 
the part of police officers to render CPR in any and 
all circumstances.” App. 25a (quotation marks 
omitted). The majority acknowledged that “due 
process requires that police officers seek the 
necessary medical attention for a detainee when he 
or she has been injured,” but concluded that this 
constitutional duty of care is satisfied if the officers 
“either promptly summonQ the necessary medical 
help or . . . tak[e] the injured detainee to the 
hospital.” Id. (quotation marks, brackets, and ellipsis 
omitted). The majority embraced a categorical rule 
that the duty of care “does not require the officer to 
intervene personally,” and that “[a]s long as the 
officer acts promptly in summoning aid, he or she 
has not deliberately disregarded the serious medical 
need of the detainee even if he or she has not 
exhausted every medical option.” App. 26a. Thus, the 
officers did not violate due process and were entitled 
to qualified immunity. Id.



15

Judge Stranch dissented from this ruling too. In 
her view, while police do not have a “per se duty to 
administer CPR, some circumstances create a duty 
for first responders to render such aid.” App. 32a 
(Stranch, J., dissenting). Here, the officers “[i]n spite 
of their training as first responders . . . elected to 
leave [Mr.] White handcuffed, facedown, and dying 
as opposed to rendering aid.” Id. And they did so 
even though they “neither feared for their own safety 
nor were busy with other tasks.” Id. Judge Stranch 
concluded that “the Constitution requires more of 
officers in these circumstances.” Id.



16

REASONS FOR GRANTING THE PETITION

Because the Court has not defined the “due 
process obligations” police owe “pretrial detainees or 
other persons in [their] care who require medical 
attention,” Revere, 463 U.S. at 244, the courts of 
appeals are divided.

The Eighth and Tenth circuits have held that 
police officers sometimes have an affirmative duty to 
help suspects injured during arrest. See, e.g., 
McRaven v. Sanders, 577 F.3d 974 (8th Cir. 2009); 
Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir. 
2014). By contrast, the Sixth Circuit, relying on a 
case from the Ninth Circuit, rejected such a rule, 
holding that so long as an officer summons medical 
aid, she never has a duty to “intervene personally.” 
See App. 26a (citing Maddox v. City of Los Angeles, 
792 F.2d 1408 (9th Cir. 1986)). The Court should 
grant certiorari to resolve this conflict in authority. 
See Sup. Ct. R. 10(a).

The decision below—and the Ninth Circuit case 
on which it relies—is contrary to this Court’s 
precedent, which unequivocally states that anyone in 
police custody is entitled to at least the level of care 
mandated for convicted prisoners under the Eighth 
Amendment. See Revere, 463 U.S. at 244. The Eighth 
Amendment would not permit a categorical rule that 
a state official never has a duty to “intervene 
personally,” even when doing so poses no safety 
threat and is necessary to save an inmate’s life. For 
this reason, too, the Court should grant certiorari. 
See Sup. Ct. R. 10(c).



17

The Court should also grant certiorari because 
this question is important and recurring. Between 
June 2015 and March 2016, the Bureau of Justice 
Statistics identified 1,348 potential arrest-related 
deaths, which averages 135 arrest-related deaths 
each month.4 In 2012, police injured or killed an 
estimated 55,400 people during arrest.5 Considering 
how frequently people are arrested, and the number 
of people who are injured or die during arrest, the 
Court should take this chance to answer the 
question it left open in Revere, and “define” what 
“due process obligations” police officers owe the 
people who need medical assistance during an 
arrest. Revere, 463 U.S. at 244.

4 Bureau of Justice Statistics, Arrest-Related, Deaths Program 
Redesign Study, 2015-16: Preliminary Findings (Dec. 2016), 
http s://www .bjs. gov/content/p ub/pdf/ar dprs 1516pf_sum .pdf.
The Washington Post also tracks the number of civilians shot 
to death by police. Every year since 2015, close to 1000 people 
have been shot dead by police. See Wash. Post, Fatal Force 
2015,
https://www.washingtonpost.com/graphics/national/police- 
shootings/? (database based on news reports, public records, 
Internet databases, and original reporting) (last visited Nov. 
18, 2018). And guns are not the only way civilians are killed 
during arrest. Police have killed more than 1000 people using 
tasers; most of these deaths have occurred since 2000. See 
Reuters, Reuters Finds 1,005 Deaths in U.S. Involving Tasers, 
Largest Accounting to Date (Aug. 22, 2017),
https://www.reuters.com/article/us-axon-taser-toll/reuters- 
finds-1005-deaths-in-u-s-involving-tasers-largest-accounting-to- 
date-idUSKCNlB21AH.
5 See Ted R. Miller et al., Perils of Police Action: A Cautionary 
Tale from US Data Sets, 23 Injury Prevention 27-32 (July 25, 
2016), https://injuryprevention.bmj.eom/content/23/l/27.

https://www.washingtonpost.com/graphics/national/police-shootings/
https://www.washingtonpost.com/graphics/national/police-shootings/
https://www.reuters.com/article/us-axon-taser-toll/reuters-finds-1005-deaths-in-u-s-involving-tasers-largest-accounting-to-date-idUSKCNlB21AH
https://www.reuters.com/article/us-axon-taser-toll/reuters-finds-1005-deaths-in-u-s-involving-tasers-largest-accounting-to-date-idUSKCNlB21AH
https://www.reuters.com/article/us-axon-taser-toll/reuters-finds-1005-deaths-in-u-s-involving-tasers-largest-accounting-to-date-idUSKCNlB21AH
https://injuryprevention.bmj.eom/content/23/l/27


18

I. THE CIRCUITS ARE DIVIDED ON 
WHETHER POLICE EVER HAVE A DUTY 
TO RENDER AID.

The Court in Revere was unequivocal that the 
Fourteenth Amendment requires government 
officials to provide medical care to arrestees and that 
the level of care owed to arrestees is at least as great 
as that owed to convicted prisoners. But that was not 
the primary issue before the Revere Court. Instead, 
the Court had to decide whether the Constitution 
obligates the government to pay for that medical 
care. See Revere, 463 U.S. at 241.

In Revere, the police shot and wounded Patrick 
Kivlin. Id. After catching him, the officers called an 
ambulance to take Mr. Kivlin to Massachusetts 
General Hospital for treatment. Id. The Hospital 
later sent the City of Revere’s Police Chief a bill for 
the treatment, and when the City did not pay, the 
Hospital sued. Id. The Massachusetts Supreme 
Court held that the “Eighth Amendment . . . 
require [d] that Revere be liable to the hospital for 
the medical services rendered to Kivlin.” Id. 
(quotation marks omitted). This Court reversed, 
holding that “as long as the governmental entity 
ensures the medical care is in fact provided,” the 
Constitution does not speak to who must bear the 
costs. Id. at 245.

While deciding the issue, the Court clarified that 
the Eighth Amendment did not apply because Mr. 
Kivlin had not been convicted of a crime. Rather, the 
relevant constitutional provision was the Fourteenth



19

Amendment’s Due Process Clause, which “require[s] 
the responsible government or governmental agency 
to provide medical care to persons . . . who have been 
injured while being apprehended by police.” Id. at 
244. The Court explained that “the due process 
rights of [an arrestee] . . . are at least as great as the 
Eighth Amendment protections available to a 
convicted prisoner.” Id. That said, the Court did “not 
define” the government’s “due process obligations to 
pretrial detainees or other persons in its care who 
require medical attention,” because, in that case, the 
government’s obligations were satisfied by ensuring 
Mr. Kivlin was “taken promptly to a hospital that 
provided the treatment necessary for his injury.” Id. 
at 244-45. There is no suggestion in Revere that Mr. 
Kivilin needed aid at the scene or that the officers 
refused to provide Mr. Kivlin care that he needed. 
Indeed, Mr. Kivlin, the “pretrial detainee,” was not a 
party in the case, and the scope of his rights was not 
at issue.

Some courts, including the Sixth and Ninth 
Circuits, have misinterpreted Revere s statement 
that the officers satisfied due process under the 
circumstances of that case by taking Mr. Kivlin 
“promptly to the hospital” as a constitutional rule 
that police officers always satisfy their constitutional 
obligations by summoning medical care for an 
injured arrestee. See Maddox, 792 F.2d at 1415; App. 
25a-26a. But the Court in Revere was clear that the 
Constitution requires a level of care for arrestees 
that—at a minimum—satisfies the Eighth
Amendment standard for convicted prisoners. And



20

the Eighth Amendment would not permit a 
categorical rule that a state official necessarily 
provides constitutionally sufficient care by 
summoning medical aid without taking any steps to 
assist an inmate personally.

Other courts, including the Eighth and Tenth 
Circuits, have recognized precisely this point. Those 
courts have looked to the Court’s Eighth Amendment 
jurisprudence and have asked whether a reasonable 
juror could find that the officers, despite calling an 
ambulance, “intentionally denfied] or delay[ed] 
access to medical care.” Estelle v. Gamble, 
429 U.S. 97, 104-05 (1976). These courts have found 
that there are circumstances where police are 
constitutionally obligated to render aid even after 
calling an ambulance and have denied summary 
judgment in those circumstances. See, e.g., McRaven, 
577 F.3d 974; Estate of Booker, 745 F.3d 405.

A. The Sixth and Ninth Circuits Have Held 
Police Officers Necessarily Satisfy Their 
Constitutional Obligations by 
Summoning Aid and Have No Duty to 
Intervene Personally.

In Maddox v. City of Los Angeles, police officers 
arrested Donald Roy Wilson, whom they believed 
was on drugs, as he was standing naked in traffic. 
792 F.2d at 1411. After being handcuffed and placed 
on the floor of the police car, Mr. Wilson allegedly 
became “belligerent,” so the officers placed him in a 
“choke hold” to subdue him. Id. at 1412. When they 
reached the hospital, the officers could not find Mr.



21

Wilson’s pulse. Id. Although they were trained in 
CPR, the officers did not try to revive him. Id. 
Instead, they took Mr. Wilson to the “jail ward” in 
the hospital where “the medical staff commenced 
CPR.” Id. He was pronounced dead later that day. 
Id.

At trial on a denial of medical care claim, the 
district court instructed the jury that “the concept of 
due process of law requires the officers to take 
reasonable steps to secure medical care which they 
recognize as necessary for the decedent,” but “any 
failure by the officers themselves to render [CPR] is 
not a violation of the decedent’s constitutional 
rights.” Id. at 1414. Ms. Maddox, the administrator 
of Mr. Wilson’s estate, opposed this instruction, 
asserting that “the fourteenth amendment due 
process clause requires officers to render CPR when 
a pretrial detainee in their custody is in need of 
CPR.” Id. at 1415.

The Ninth Circuit rejected this argument, 
holding the instruction correctly “set forth the 
constitutional obligation of the officers in this case.” 
Id. The court, citing Revere, noted that “[t]he due 
process clause requires responsible governments and 
their agents to secure medical care for persons who 
have been injured while in police custody.” Id. 
However, it “found no authority suggesting that the 
due process clause establishes an affirmative duty on 
the part of police officers to render CPR in any and 
all circumstances.” Id. Citing Revere again, the court 
then held that due process only “requires that police



22

officers seek the necessary medical attention for a 
detainee when he or she has been injured while 
being apprehended by either promptly summoning 
the necessary medical help or by taking the injured 
detainee to a hospital.” Id. And the court reasoned 
that, “as in Revere, the jury could reasonably have 
concluded that the defendant police officers fulfilled 
their obligation under the due process clause when 
they promptly took the defendant to the hospital to 
obtain medical care.” Id.

The Sixth Circuit panel majority relied almost 
exclusively on Maddox and its interpretation of 
Revere when deciding the denial of medical care 
claim here. The Sixth Circuit concluded that the 
“logic that underlies” Maddox “makes sense: an 
officer is charged with providing a detainee with 
prompt medical attention. However, this attention 
does not require the officer to intervene personally.” 
App. 26a. Applying Maddox to this case, the Sixth 
Circuit concluded that “ [a]s long as the officer acts 
promptly in summoning aid, he or she has not 
deliberately disregarded the serious medical need of 
the detainee even if he or she has not exhausted 
every medical option.” Id.

Like the Sixth and Ninth Circuits, several 
district courts have categorically held that when 
“officers promptly requestQ medical assistance . . . 
the Constitution require[s] them to do no more.” 
Henriquez v. City of Bell, No. 14 Civ 196(GW), 2015 
WL 13423888, at *3 (C.D. Cal. Sept. 10, 2015); see, 
e.g., Adams v. Custer, No. 14 Civ. 80403(DTH), 2016



23

WL 155081, at *17 (S.D. Fla. Jan. 12, 2016); Reyes ex 
rel. Reyes v. City of Fresno, No. 13 Civ. 418(LJO), 
2013 WL 2147023, at *7 (E.D. Cal. May 15, 2013); 
Stogner v. Sturdivant, No. 10 Civ. 125(JJB), 2010 
WL 4056217, at *4 (M.D. La. Oct. 14, 2010); Tate v. 
Dunnigan, No. 06 Civ. 169(RAE), 2007 WL 4353456, 
at *4 (M.D.N.C. Dec. 7, 2007).

B. The Eighth and Tenth Circuits Have 
Held There Are Circumstances When 
Police Officers Have a Constitutional 
Obligation to Personally Render Aid.

The Eighth and Tenth Circuits have recognized 
that this Court’s precedent does not support a 
categorical rule that an officer necessarily renders 
constitutionally adequate medical care simply by 
summoning aid. Those courts have applied the 
constitutional floor established by the Eighth 
Amendment’s deliberate indifference standard and 
held that, under certain circumstances, an officer 
who fails to render aid to an injured arrestee has 
acted with deliberate indifference.6

6 The Court has “reserved decision on the question whether 
something less [with respect to a state actor’s culpability] than 
the Eighth Amendment’s ‘deliberate indifference’ test may be 
applicable in claims by detainees asserting violations of their 
due process right to medical care while in custody.” City of 
Canton v. Harris, 489 U.S. 378, 389 n.8 (1989). Based on the 
Court’s precedent, there arguably should be no subjective 
component to a denial of medical care claim in the Fourteenth 
Amendment context just as there is no requirement to show a 
subjective intent to harm in the Fourteenth Amendment 
excessive force context. See Kingsley v. Hendrickson, 135 S. Ct. 
2466, 2475 (2015).



24

In McRaven, the Eighth Circuit held that “ [a]n 
officer trained in CPR, who fails to perform it on a 
[pretrial detainee] manifestly in need of such 
assistance, is liable under § 1983 for deliberate 
indifference.” 577 F.3d at 983. There, police arrested 
Steven McFarland for driving under the influence. 
Id. at 978. The officers took him to the detention 
center, where they tested his urine. Id. Mr. 
McFarland tested positive for drugs. Id. The officers 
also noted that Mr. McFarland’s condition was 
“‘poor,’ his speech 0 ‘slurred,’ his face Q ‘flushed,’ and 
his eyelids 0 droopy.’” Id. Two officers at the center 
discussed taking Mr. McFarland to the hospital, but 
they decided to consult with “a practical nurse at the 
facility, before taking any action.” Id. The nurse 
examined Mr. McFarland and determined he did not 
need to be hospitalized, and they placed him a 
holding cell. Id. at 979.

A few hours later, another detainee notified 
Sergeant Ashley, who was trained in CPR, that Mr. 
McFarland “was not breathing.” Id. The sergeant 
entered the cell at 5:35 p.m. and stood over Mr. 
McFarland “shaking him,” but never tried to perform 
CPR. Id. He also notified the paramedics, who 
arrived seven minutes later and transported Mr. 
McFarland to the hospital. Id. Mr. McFarland 
suffered “severe brain injuries, stemming from 
airway blockage.” Id.

Mr. McFarland’s guardian brought a § 1983 suit 
alleging Sergeant Ashley unconstitutionally denied 
Mr. McFarland medical care. Id. The district court



25

held Sergeant Ashley was not entitled to summary 
judgment on this claim, and the Eighth Circuit 
affirmed. Id. at 980.

Analyzing the “claim under the Due Process 
Clause of the Fourteenth Amendment,” id. at 979, 
the court of appeals explained that “[djespite being 
trained in CPR, Ashley made no attempt to 
resuscitate [Mr.] McFarland” “for seven minutes 
before the paramedics arrive[d].” Id. at 983. The 
court held that “ [a]n officer trained in CPR, who fails 
to perform it on a prisoner manifestly in need of such 
assistance, is liable under § 1983 for deliberate 
indifference.” Id. Sergeant Ansley “was aware of 
[Mr.] McFarland’s medical need and was capable of 
providing assistance,” yet “failed to do so.” Id. Thus, 
the Eighth Circuit concluded that the “district court 
did not err by denying him qualified immunity.” Id. 
at 983-84.

Citing McRaven approvingly, the Tenth Circuit 
similarly held police officers can be found liable for 
failing to personally provide aid to a suspect in their 
custody. 745 F.3d at 431-32. There, police officers 
arrested Marvin Booker on a failure to appear 
warrant. Id. at 412. Mr. Booker was uncooperative 
during the booking process, so an officer put him in a 
“carotid restraint”—a technique “capable of
rendering a person unconscious within 10-20 
seconds,” and which the “Sherriffs training 
materials warn” can cause “brain damage or death.” 
Id. at 413 (quotation marks and emphasis omitted). 
Close to three minutes passed before the officer



26

released the hold; the deputies then carried Mr. 
Booker to a cell. Id. at 415. None of the officers 
“check[ed] Mr. Booker’s vitals or attempt[ed] to 
determine whether he needed immediate medical 
attention.” Id.

After leaving the cell, one officer went to the 
nurse’s station to “request that Mr. Booker be 
evaluated.” Id. Another officer went back to the cell 
less than thirty seconds later and saw that Mr. 
Booker “did not appear to be breathing.” Id. The 
officer shouted that Mr. Booker “needed medical 
attention,” and then ran to the nurses’ station “and 
told a nurse to hurry.” Id. A nurse arrived at the cell 
about one and a half minutes later—less than five 
minutes after “the use of force incident ended.” Id. 
None of the officers sought to intervene personally 
during this period. Id. And “[a]ttempts [by the nurse] 
to resuscitate Mr. Booker were unsuccessful.” Id. at 
416.

The district court denied the officers summary 
judgment on a denial of medical care claim. The 
Tenth Circuit affirmed. The court noted that the 
“Defendants actively participated in producing Mr. 
Booker’s serious condition through their use of force 
against him,” and that they had a “front-row seat to 
Mr. Booker’s rapid deterioration.” Id. at 431. The 
court pointed to evidence showing that “resuscitation 
could possibly have saved Mr. Booker’s life” and that 
“ [e]ach of the Defendants received regular training 
in first aid/CPR and training that any inmate 
involved in a use of force incident needs to be



27

medically evaluated after the incident.” Id. 
(quotation marks omitted). The Tenth Circuit 
concluded that, “[i]n light of this training and Mr. 
Booker’s limp appearance, a reasonable jury could 
conclude the Defendants inferred that Mr. Booker 
was unconscious and needed medical attention.” Id. 
at 431-32. Thus, held the court, “If a jury concludes 
the Defendants made this inference, then it could 
also conclude that they were deliberately indifferent 
in failing to respond sooner.” Id. at 432.

Like the Eighth and Tenth Circuits, other 
district courts across the country have held that 
“summon[ing] rescue” “is insufficient by itself to 
defeat [a] deliberate indifference” claim and that 
there are times when the Fourteenth Amendment 
obligates an officer to intervene personally. Petro v. 
Town of W. Warwick ex rel. Moore, 889 F. Supp. 2d 
292, 333 (D.R.I. 2012); see, e.g., Wallace v. Jackson, 
667 F. Supp. 2d 1267, 1275 (M.D. Ala. 2009); Sparks 
v. Susquehanna County, No. 05 Civ. 2274(JMM), 
2009 WL 922489, at *10 (M.D. Pa. Apr. 3, 2009); 
Ashworth u. Round Lake Beach Police Dep’t, No. 03 
Civ. 7011 (PEP), 2005 WL 1785314, at *7 (N.D. 111. 
July 21, 2005).

•k  k  k

These two lines of cases are in conflict. One line 
of cases, misapplying Revere, has held that officers 
are obligated only to summon aid. The other line, 
relying on Estelle, has held that there are 
circumstances when an officer’s failure to provide aid 
amounts to the intentional denial or delay of medical



28

care in violation of the Constitution. Because the 
Sixth Circuit sided with the Ninth Circuit, it held 
that the officers here were entitled to summary 
judgment. But had Sergeant Frenz and Officer 
McKee been in a state in the Eighth or Tenth 
Circuits, the denial of medical care claim would have 
gone to a jury. A reasonable juror could have found 
that the officers were “aware of [Mr. White’s] 
medical needs and [were] capable of providing 
assistance,” yet “failed to do so.” Compare McRaven, 
577 F.3d at 983 (officers not entitled to summary 
judgment for not providing any assistance for the 
seven minutes it took the paramedics to arrive). And 
that reasonable juror could have concluded that the 
officers “inferred” Mr. White needed “medical 
attention,” and thus “conclude[d]” that the officers 
“were deliberately indifferent in failing to respond 
sooner.” Compare Estate of Booker, 745 F.3d at 431- 
32 (officers not entitled to summary judgment for not 
providing any assistance for the five minutes it took 
the ambulance to arrive).

The Court should grant certiorari to resolve this 
confusion.

II. THE QUESTION PRESENTED IS 
IMPORTANT AND RECURRING.

The Court should also grant certiorari because 
the question presented is important and recurring. 
This case involves the due process protections owed 
to people who police have arrested based on probable 
cause—a “practical, fluid, flexible, easily applied, 
and nontechnical” standard. New Jersey v. T.L.O.,



29

469 U.S. 325, 364 (1985) (quotation marks omitted). 
Indeed, the standard for arrest is so “flexible,” that 
in 2015, over 10 million people were arrested in the 
United States.7 And a staggering number of people 
die or are injured during arrest. According to the 
available data, there were over 1000 arrest-related 
deaths in a nine-month span and over 55,000 
injuries or deaths during arrest in a one-year period. 
See supra at 16-17. Yet the Court has twice declined 
to define arrestees’ rights to medical care while in 
police custody. See Revere, 463 U.S. at 244; Harris, 
489 U.S. at 389 n.8. The Court should grant 
certiorari because the answer to the question 
presented implicates the constitutional rights of 
thousands, potentially millions, of citizens each year. 
And the stakes could not be higher: the level of care 
police must provide suspects in their custody can be 
a matter of life or death.

Underscoring the importance of the question 
presented, as Judge Stranch noted, this case “points 
to a broader, troubling pattern. After serving his 
country in the war in Iraq, Jason White returned to 
the United States as a decorated veteran suffering 
from significant mental health problems. On the day 
the police shot him, he was suffering an acute 
mental health incident.” App. 32a. (Stranch, J., 
dissenting). Judge Stranch explained that Mr.

' Dep’t of Justice, FBI, 2015 Crime in the United States, 
https://ucr.fbi.gOv/crime-in-the-u.s/2015/crime-in-the-u.s.- 
2015/persons-arrested/persons-arrested (last visited Nov. 18, 
2018). Of these 10 million-plus arrests, only roughly 500,000 
were for violent crimes. Id.

https://ucr.fbi.gOv/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested
https://ucr.fbi.gOv/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested


30

White’s case is not an anomaly: “it is safe to say that 
a third to a half of all use-of-force-incidents involve a 
disabled citizen,” and “[p]eople with mental illness 
are 16 times more likely to be killed by police.” Id. 
(brackets and emphasis omitted). Thus, those most 
likely to be injured or killed by police during arrest 
are some of the most vulnerable members of society.

Unfortunately, “police are often caught in an 
unenviable position on the frontlines of mental 
health emergencies.” App. 33a. And despite the 
statistics showing that a disparate number of use-of- 
force-incidents involve people suffering from mental 
illness, officers are still often encouraged to “shoot 
first and think later.” Kisela v. Hughes, 138 S. Ct. 
1148, 1162 (2018) (Sotomayor, J., dissenting).
Granting summary judgment in a case like this does 
little to encourage police departments to equip 
officers with the tools needed “to safely address the 
presenting issue or ongoing needs” of persons they 
encounter who may be suffering a mental health 
crisis. App. 33a (Stranch, J., dissenting).

This case does not require the Court to second- 
guess the difficult, “split-second decisions” police 
must sometimes make. Tennessee v. Garner, 471 
U.S. 1, 20 (1985). Instead, it simply, but importantly, 
asks that the Court define police officers’ 
constitutional obligations after force is used, and 
decide whether an officer is ever constitutionally 
obliged to help a person he hurts.

The Court should grant review.



31

CONCLUSION

For these reasons, certiorari is warranted.

SHERRILYN A. IFILL 
Director-Counsel 

Ja n a i S. N e l s o n  
Sa m u e l  Sp it a l  
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , In c . 
40 Rector Street 
5th Floor
New York, NY 10006

Respectfully submitted,

D a n ie l  S. H a r a w a * 
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , In c . 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Petitioner 
Patti Stevens-Rucker

* Counsel of Record

mailto:dharawa@naacpldf.org


APPENDIX



APPENDIX A

NOT RECOMMENDED FOR 
FULL-TEXT PUBLICATION

File Name: 18a0333n.06
United States Court of Appeals 

for the Sixth Circuit

la

Nos. 17-3384/3475

PATTI STEVENS-RUCKER, Administrator of The 
Estate of Jason White, Deceased,

Plaintiff, Appellee/Cross-Appellant,

CITY OF COLUMBUS, OH; SERGEANT 
JOHN FRENZ, (#5141); OFFICER 

DUSTIN MCKEE, (#2611),
Defendant-Appellants/Cross-Appellees.

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF OHIO

FILED
Jul 10, 2018 

Deborah S. Hunt, Clerk

OPINION



2a

BEFORE: NORRIS, BATCHELDER, and
STRANCH, Circuit Judges.

NORRIS, J., delivered the opinion of the 
court in which BATCHELDER, J., joined, and 
STRANCH, J., joined in part. STRANCH, J. (pp. 
28a -  34a), delivered a separate opinion
concurring in part and dissenting in part.

AT.AN E. NORRIS, Circuit Judge. In the early 
morning hours of November 17, 2013, Ashley Cruz was 
awakened in her Hilliard, Ohio, apartment by a 
shirtless man wearing a camouflage hat and jeans. It 
was raining, and he was soaked. He held a large 
kitchen knife and was clearly confused—apparently 
believing that he had entered his own apartment. 
Within the hour he was dead—shot several times by 
Columbus police officers who had converged on the 
apartment complex in response to a 911 call from Ms. 
Cruz.

With the benefit of hindsight, no one disputes that 
the events of this evening were tragic. The man, Jason 
White, was a 32-year-old, decorated veteran who had 
served in Iraq. Although he had exhibited certain 
mental health issues, such as bipolar disorder, he was 
“deemed not to be an imminent risk of danger to self or 
others” just days before his death. Nothing in the 
record suggests that the officers who responded were 
aware of these issues.

This appeal stems from a suit filed by Patti 
Stevens-Rucker, the administrator of his estate. Her 
complaint alleges that the two Columbus police officers 
who shot Mr. White used excessive force in doing so 
and were then deliberately indifferent to his serious



3a

medical needs as he lay dying; their actions, or lack 
thereof, violated the Fourth and Fourteenth 
Amendments, respectively. Plaintiff also contends that 
the City of Columbus failed adequately to train or 
supervise its officers and had customs and/or policies 
that ratified constitutional violations. Lastly, the 
complaint includes Ohio-law claims for wrongful 
death, assault and battery, and intentional infliction 
of emotional distress.

Defendants filed a motion for summary judgment, 
which the district court granted in part and denied it 
in part. Stevens-Rucker v. City of Columbus, 242 F. 
Supp. 3d 608, 634 (S.D. Ohio 2017). This appeal 
followed.

I .

In an affidavit, Ashley Cruz described the events 
that triggered White’s fatal encounter with Columbus 
police. Around 5 a.m., she was sleeping on her living 
room couch when she heard someone enter her 
apartment. (She had left her door unlocked so that her 
boyfriend could enter when he returned.) She sat up 
and saw White. He “was holding a large kitchen knife 
in his right hand, and he was sliding his left hand 
across the top of the knife’s blade.” After turning on 
the light, she asked him to leave. She offered White 
food, water, and a coat. Rather than reply directly, he 
asked her why she was in his home. She explained 
that she lived there. He then walked in and out of her 
apartment. According to Cruz, he “looked confused, 
and I thought he was under the influence of drugs or 
alcohol.” Eventually, he left long enough for her to lock 
the door. When White returned and began to try the 
handle, she called 911.



4a

That night Columbus police officer Don Alderman1 
was alone in his patrol car when he received a call 
dispatching him to Cruz’s apartment. According to his 
deposition testimony, he remembered “hearing... that 
the caller called 911 and said that there was a man 
with a knife banging on her door.” While driving to the 
scene, Alderman received an update that the man was 
attempting to re-enter Cruz’s apartment, which 
transformed the incident into a possible burglary and 
a “two-officer” run.

When Alderman arrived at the scene, he 
encountered White who was not holding a weapon. 
Alderman approached with his gun drawn. The two 
men faced each other at a distance of fifteen to twenty 
yards. When asked to show his hands, White complied. 
He turned around when asked to do so but dropped his 
hands to his sides. Alderman saw knives in his back 
pocket and ordered White to put his hands back up. 
Instead, White simply turned around. As Alderman 
put it, “It’s hard to put into words, but he’s almost 
looking around and not really even looking at me, but 
almost just kind of looking through me it seemed. It 
didn’t seem like he was too concerned with anything I 
was commanding him to do.”

At this point, Alderman removed his Taser while 
keeping his gun trained on White. He ordered him to 
the ground. When White failed to comply, Alderman 
deployed his Taser. At that moment, White did not 
have a knife in his hands. On impact, White fell 
backwards to the ground. Alderman put the Taser

1 Officer Alderman was originally named a defendant in 
this action. He was later dismissed by joint stipulation.



5a

away and approached White. According to Alderman, 
“As soon as he fell back and hit the ground, it seemed 
almost immediately as he hit the ground, he was 
popping back up.” When he got back up, White had a 
knife in his hand. Here is Alderman’s description of 
what happened next:

It was all kind of one fluid motion of getting up
and coming forward with the blade pointing up
and coming directly towards me. . . . [T]hat’s
when I fired my shots.

In all, Alderman fired four times. None of the bullets 
struck White, who then ran away. Alderman did not 
pursue him because he was shaken up and wanted to 
wait for backup.

For his part, Sergeant John Frenz, who remains a 
party to this appeal, was in his office when he heard 
radio traffic that Alderman had the suspect at 
gunpoint. He ordered a “10-3” run, signaling that there 
was an officer in trouble. He then left the station and 
headed to the apartment complex where he 
encountered responding officers Jeffrey Kracht and 
Dustin McKee. Frenz directed them to set up a 
perimeter to apprehend White. The two officers left 
Frenz and fanned out. According to his deposition 
testimony, Frenz observed White “at the corner, 
crouched down, hiding his hands, kind of peering 
around the corner.” Having heard that Alderman had 
fired shots at White because he had a knife, Frenz 
drew his weapon. He shined his flashlight in White’s 
direction and identified himself. Frenz approached and 
ordered White to show his hands. Instead White stood 
up and moved around to the south side of the building 
where there was a small area partially enclosed by a



6a

fence which contained air conditioning units. There 
were gaps between the fence and the apartment 
building at either end of the enclosure.

White crouched inside the enclosure as Frenz 
approached. Once again, Frenz ordered White to show 
his hands. In response, White stood up; there was a 
knife in his hand. The men were about twenty feet 
apart although separated by the fence. Frenz knew 
that there were other officers in the area and he 
caught a glimpse of one, who turned out to be Kracht. 
Seeing that Frenz had White at gunpoint, Kracht 
holstered his gun and withdrew his Taser. According 
to Kracht’s deposition testimony, he fired it at White, 
who was unaffected and instead began to move toward 
the gap in the fence that was closest to Frenz. For his 
part, Frenz testified that he felt that White was 
coming at him. Before White was able to leave the 
enclosure, Frenz fired three shots. One of them hit 
White in the shoulder. At the time Frenz fired, he 
estimates that he was six to eight feet from White, 
albeit on the other side of the fence.

Dustin McKee, the other officer who remains a 
party to this appeal, was about thirty yards away 
when he heard Frenz shoot. He testified that he saw 
the blood spatter from White’s back when he was shot. 
Despite being wounded, White fled with the three 
officers—McKee, Frenz, and Kracht—all in pursuit. 
McKee left the others and looped around in another 
direction. He eventually saw White emerge from a 
breezeway and head north. McKee followed. With the 
three officers in pursuit, McKee elected to slow, crouch, 
and fire two shots at White. One of those shots may 
have struck White who continued to flee. After turning



7a

through a breezeway, McKee encountered White, who 
had stopped and was facing the officer. He still held a 
knife. The two were about fifteen feet apart. Though 
his gun was drawn, McKee’s finger was not on the 
trigger.

According to his deposition testimony, McKee felt 
that White was close enough to strike at him. He 
aimed at White’s “center mass” and fired two shots. 
Before the shots, White was staring at McKee with a 
blank expression. As McKee put it, “[T]hat’s the first 
time I’d actually made eye contact with Mr. White . .
. and there was no expression whatsoever.” White 
collapsed after the shots. McKee fired two more times:

He was laying on his left side kind of with his 
arm underneath, his left arm underneath 
almost in front of him, and was trying to post 
himself back up, meaning push up to get 
himself back off the ground.

One of the shots hit White in the chest. According to 
an affidavit sworn by McKee, “[t]he time between the 
second and third set of shots may have been only a 
second or even fractions of a second.”

After these shots, a number of officers converged 
on the scene. Officer Kracht took the knife from 
White’s hand, rolled him onto his stomach, and placed 
handcuffs on him. Although no officer attempted to 
provide emergency medical assistance, an audio 
recording indicates that the rescue squad was 
summoned and a medical squad arrived about fifteen 
minutes later. Emergency medical personnel checked 
White for vital signs but, finding none, pronounced 
him dead.



8a

The district court granted summary judgment on 
a number of claims and denied it on others. 
Defendants appealed the partial denial of their motion, 
and plaintiff filed a cross-appeal challenging those 
claims on which judgment was granted.

III.
Qualified Immunity

We turn first to the invocation of qualified 
immunity by Officers Frenz and McKee. If they are 
entitled to qualified immunity, then the claims of 
municipal liability, which hinge on a finding that 
plaintiff s decedent suffered a constitutional violation, 
would necessarily fall away. Monell v. Dep’t of Soc. 
Servs., 436 U.S. 658, 691 (1978) (noting that municipal 
§ 1983 liability arises only when an “action pursuant 
to official municipal policy of some nature caused a 
constitutional tort”). As outlined earlier, the plaintiff 
alleges that the defendant officers violated White’s 
constitutional rights in two respects: first, that they 
used excessive force against him in violation of the 
Fourth Amendment; second, that they then were 
deliberately indifferent to his serious medical needs in 
violation of the Fourteenth.

Standard of Review

We review the denial of summary judgment on the 
grounds of qualified immunity de novo. Mitchell v. 
Schlabach, 864 F.3d 416, 420 (6th Cir. 2017). We view 
the facts in a light most favorable to plaintiff and draw 
all favorable inferences in her favor. Id.



9a

Qualified Immunity and Excessive Force
Qualified immunity shields government officials 

“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.” Harlow v. Fitzgerald, 457 U.S. 
800, 818 (1982). Plaintiff bears the burden of showing 
that defendants are not entitled to qualified immunity. 
Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th 
Cir. 2009) (citing Untalan v. City of Lorain, 430 F.3d 
312, 314 (6th Cir. 2005)). Qualified immunity “‘gives 
ample room for mistaken judgments’ by protecting ‘all 
but the plainly incompetent or those who knowingly 
violate the law.’” Hunter v. Bryant, 502 U.S. 224, 229 
(1991) (quoting Motley v. Briggs, 475 U.S. 335, 341 
(1986)).

Excessive force claims are analyzed under an 
objective reasonableness standard. Graham v. Connor, 
490 U.S. 386, 397 (1989). In Graham, the Supreme 
Court explained that the application of the 
reasonableness standard in this context “requires 
careful attention to the facts and circumstances of each 
particular case, including the severity of the crime at 
issue, whether the suspect poses an immediate threat 
to the safety of the officers or others, and whether he 
is actively resisting arrest or attempting to evade 
arrest by flight.” Id. at 396 (citation omitted). In 
addition, “[t]he ‘reasonableness’ of a particular 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.” Id. In short, “[a]n officer’s 
evil intentions will not make a Fourth Amendment 
violation out of an objectively reasonable use of force;



10a

nor will an officer’s good intentions make an 
objectively unreasonable use of force constitutional.” 
Id. at 397. “In excessive force cases, the threat factor 
is ‘a minimum requirement for the use of deadly force,’ 
meaning deadly force ‘may be used only if the officer 
has probable cause to believe that the suspect poses a 
threat of severe physical harm,”’ Mullins v. Cyranek, 
805 F.3d 760, 766 (6th Cir. 2015) (quoting Untalan, 
430 F.3d at 314). Finally, “plaintiff must show that the 
right was clearly established in a ‘particularized 
sense,’ such that a reasonable officer confronted with 
the same situation would have known that using 
deadly force would violate that right.” Chappell, 585 
F.3d at 907 (quoting Brosseau v. Haugen, 543 U.S. 
194, 199-200 (2004)). Consonant with that
requirement, the United States Supreme Court 
recently reminded lower courts “’not to define clearly 
established law at a high level of generality.’” Kisela v. 
Hughes, 138 S. Ct. 1148,1152 (2018) (quoting City and 
Cnty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1776

(2015)).
With these precepts in mind, we turn to the actions 

of the two officers individually.
Officer Frenz’s Use of Force

The district court concluded that Sergeant Frenz 
was entitled to qualified immunity for his use of 
deadly force against White. Stevens-Rucker, 242 F. 
Supp. 3d at 625. We agree with the analysis of the 
district court with respect to Sergeant Frenz’s use of 
force and summarize that reasoning here before 
turning to the arguments advanced by plaintiff on 
appeal.



11a

As our case law requires, the district court 
addressed the three factors that Graham instructs us 
to consider when determining whether the use of 
deadly force was reasonable: 1) severity of the crime; 
2) whether the suspect was resisting arrest or fleeing; 
and 3) whether the suspect posed an immediate threat 
to others, including the officer involved. Graham, 490 
U.S. at 396; Mullins, 805 F.3d at 765.

With respect to the first consideration, the district 
court concluded that “at the time Frenz encountered 
White, based on the information he had at the time, it 
was reasonable for Frenz to believe that White had 
committed aggravated burglary under Ohio Revised 
Code § 2911,11(B) and aggravated assault under Ohio 
Revised Code § 2901.11(A)(2), two potentially violent 
crimes.” Stevens-Rucker, 242 F. Supp. 3d at 622.

Turning to whether White was resisting or fleeing, 
the court made the following observations:

[TJhis factor weighs in favor of the use of force 
by Frenz. Again, Frenz was aware that 
Alderman had some sort of confrontation with 
White, that White then ran away from 
Alderman and into a new [next door] 
apartment complex, that White continued to 
refuse to follow Frenz’s commands, and that 
White then, at a minimum was attempting to 
flee out of the enclosure [containing the air 
conditioning units] with a knife in his hand.

Id. at 622-23.



12a

The final consideration—the immediacy of the 
danger posed by White—presents a closer question. We 
quote the district court’s analysis of plaintiff s position 
at some length because she advances the same 
arguments to this court:

Plaintiff repeatedly states that “a 
reasonable fact finder could find that Jason 
White was merely moving away from Frenz 
and Kracht and posed no imminent deadly or 
serious threat to anyone.” However, there is no 
evidence that rebuts the testimony of both 
Kracht and Frenz that White first moved in 
Frenz’s direction holding a knife, refusing 
orders to drop the knife and show his hands. 
While it is certainly possibly [sic] that White 
was merely attempting to leave the enclosure, 
it is undisputed that his first move—once 
confronted by Frenz and Kracht—was a move 
toward Frenz. In the Sixth Circuit, in the 
absence of overt statements by White to the 
officers, White’s actual motives for his 
movements are not relevant to this inquiry 
because they are not known to the reasonable 
officer at the time of the incident. See 
Murray-Ruhl, 246 F. App’x at 350 (“the 
subjective intent of the victim—unavailable to 
the officers who must make a split-second 
judgment—is irrelevant to the question 
whether his actions gave rise to a reasonable 
perception of danger.”); see also United States 
v. Serrata, 425 F.3d 886, 905 (10th Cir. 2005) 
(holding the victim’s “state of mind is 
irrelevant, as the force would have been 
excessive regardless of [the victim’s] subjective



13a

state of mind.”); Palmquist v. Selvik, 111 F.3d 
1332, 1339 (7th Cir. 1997) (finding that 
“evidence outside the time frame of the 
shooting is irrelevant and prejudicial” and 
excluding the victim’s subjective intent to 
commit suicide by police).

As to immediacy, the Court agrees with 
Defendants that Lopez v. City of Cleveland is 
inapplicable to Frenz’s shooting. In Lopez, the 
Sixth Circuit analyzed a case where police 
officers approached a machete wielding 
suspect who was speaking to a family member. 
625 F. App’x 742, 744 (6th Cir. 2015). The 
officers alleged that they saw the decedent 
make a move toward the family member with 
the machete raised over his head in a 
threatening manner. Id. However, there were 
three non-officer witnesses who alleged that 
the decedent turned away from the family 
member, that he only raised the machete to 
threaten himself, that he never raised it at all, 
and/or that he did not turn in any direction. 
Id. The Sixth Circuit found that there was a 
question of fact whether the decedent had in 
fact moved towards the family member while 
holding the machete. Id. at 746. Accordingly, 
the Court decided that “[tjhose disputes go to 
the heart of whether it was reasonable for 
Defendant Officers to use deadly force.” Id. at 
747. Notably, the Court did not hold that force 
would be unreasonable if the officers’ version 
of the facts was correct. In this case, there is



14a

no question of fact about White’s movement 
immediately before Frenz fired, meaning the 
Lopez decision is unhelpful in determining 
whether Frenz’s shooting was reasonable.

Plaintiff argues Frenz was never in danger 
because White was not within striking 
distance at the time Frenz shot, that Frenz 
had cover from the fence, and that there were 
twenty to thirty officers in the area. There is 
nothing in the record which rebuts Frenz’s 
testimony that White was six to eight feet 
from Frenz when Frenz fired. Plaintiff does 
not cite to any case law which requires that a 
victim be within striking distance before an 
officer fires his weapon. In fact, in Chappell, 
the Sixth Circuit explicitly held that a knife 
wielding suspecting moving toward an officer 
with the knife, “held up while ignoring their 
commands to drop the knife; and that they 
believed he was trying to attack them and, at 
a distance of less than seven feet, posed an 
imminent threat of serious bodily harm.” 
Chappell, 585 F.3d at 910. The decedent in 
Chappell also had a mattress between him and 
the officers but the Sixth Circuit applied 
qualified immunity anyway, noting that the 
mattress would have posed “little impediment 
to a knife-wielding assailant.” Id. at 911. The 
Court finds that those circumstances are 
sufficiently similar to the case at hand to 
warrant a finding of reasonableness.



15a

Based on the similarities in Chappell, even 
if Frenz’s use of force was unreasonable, when 
the Court is in a legal gray area, “the proper 
course is to grant summary judgment to the 
officers, even if the court would hold the 
officers’ conduct unconstitutional in 
hindsight.” Rudlaffv. Gillispie, 791 F.3d 638, 
644 (6th Cir. 2015) (citing al-Kidd, 563 U.S. at 
131). Accordingly, Frenz is entitled to qualified 
immunity for his use of force against White . .

Id. at 623-25 (footnote and citations omitted).
In her brief to this court, the plaintiff takes issue 

with this reasoning. She argues that the “severity of 
the crime” factor does not support an inference that 
Frenz knew, as the district court stated, that White 
attempted to cause physical harm to Alderman by 
means of a deadly weapon. On the contrary, she 
contends that the record only indicates that Frenz 
knew that White had been banging on Ms. Cruz’s door 
with a knife in hand, that Alderman fired shots at him, 
and that Alderman was uninjured.

Even if we limit Sergeant Frenz’s knowledge to 
those factors listed by plaintiff, the severity of the 
crime is enough to justify the use of force. As the 
district court pointed out, Frenz had probable cause to 
believe that, at the very least, White had committed 
aggravated burglary and was armed with a knife while 
doing so.

Much closer, of course, is the question whether 
Sergeant Frenz was in immediate danger of death or 
bodily injury at the time that he used deadly force. We



16a

must construe facts in favor of the non-moving party. 
Here, plaintiff reminds us that a fence separated 
White and Sergeant Frenz. As the record below clearly 
established, Kracht and Frenz were at opposite ends of 
the enclosure. White fled through the opening closest 
to Frenz. The parties dispute whether he was fleeing 
or charging Frenz. What is undisputed is that, as 
White began to flee, he moved closer to Frenz. If, as 
the district court concluded, Frenz could reasonably 
have believed that a knife-carrying person was 
charging at him, his fear of immediate death or injury 
was justified. However, if, as plaintiff urges, it should 
have been clear to Frenz that White was simply trying 
to run away, then the use of force becomes much more 
problematic.

As she did the district court, plaintiff asks us to 
look to Lopez, supra, rather than Chappell, supra, in 
making our decision. In the latter case, the suspect 
was emerging from a dark, enclosed bedroom with a 
knife at a distance of less than seven feet; in the 
former, the suspect was on the porch with a machete 
and it was sufficiently disputed as to whether he posed 
an imminent danger to his family. As plaintiff sees it, 
the latter scenario is closer to that faced by her 
decedent.

We affirm based upon the reasoning of the district 
court. Sergeant Frenz was faced with an individual 
carrying a knife coming in his direction. He knew that 
person had already confronted another officer and that 
shots had been fired. Given the deference that we 
accord the split-second decisions which officers are 
sometimes called upon to make, Latits v. Phillips, 878 
F.3d 541, 547 (6th Cir. 2017), the facts—even when



17a

viewed in the light most favorable to plaintiff—justify 
the grant of qualified immunity.

Officer McKee’s Use of Force

We turn now to the firing of six shots by Officer 
McKee and consider whether they constituted a 
constitutionally impermissible use of force that 
deprives him of qualified immunity. The parties and 
the district court analyzed the six shots as three 
separate incidents of two shots each despite Officer 
McKee’s testimony that only eight to ten seconds 
elapsed between the first and last shot. As explained 
below, we view the final four shots through a different 
lens.

Once again, we begin with the analysis by the 
district court. While we recognize that our review is de 
novo, our independent assessment of the record 
convinces us that the district court’s description of the 
events leading to Mr. White’s death is thorough and 
balanced. We part company only with the conclusions 
to be drawn from these events.

As recounted at the outset, the first two shots fired 
by McKee occurred while he, Sergeant Frenz, and 
Officer Kracht were chasing White through an 
apartment complex after he had just run from the air 
conditioning enclosure where he had been wounded by 
Sergeant Frenz. While all three officers were in 
pursuit, McKee had taken a different route and they 
were not side by side. With White about 20 to 25 feet 
ahead, McKee crouched and fired two shots, one of 
which likely struck White in the back. The court 
reached the following conclusion with respect to the



18a

threat posed by White to Officer McKee or others with 
respect to this shooting:

This case comes down to whether a 
reasonable officer would believe—or that 
reasonable officers could differ—that White 
was an immediate threat to others in the area.
The Supreme Court has cautioned that an 
officer’s actions may fall “in the ‘hazy border 
between excessive and acceptable force.’” 
Brosseau, 543 U.S. at 200-01 (quoting 
Saucier, 533 U.S. at 206). This is such a case.
In Plumhoff, the Supreme Court found the use 
of force reasonable during a high speed chase 
where, “at the moment when the shots were 
fired, all that a reasonable police officer could 
have concluded was that [the suspect] was 
intent on resuming his flight and that, if he 
was allowed to do so, he would once again pose 
a deadly threat for others on the road.” 
Plumhoff, 134 S. Ct. at 2022. Thus, the Court 
finds that even though there were no other 
officers or civilians in the immediate vicinity of 
White, McKee’s first use of force was 
reasonable because reasonable officers could 
differ on whether or not White posed an 
immediate danger to those in the area. 
Mullins, 805 F.3d at 765. Further, this case 
falls into the sort of gray area that means it 
would not be “clear to a reasonable officer that 
his conduct was unlawful in the situation he 
confronted,” and thus that the right was not 
clearly established. Saucier, 533 U.S. at 202.



19a

Stevens-Rucker, 242 F. Supp. 3d at 626. We adopt this 
reasoning and affirm the grant of qualified immunity 
to Officer McKee with respect to these initial two 
shots.

We now turn to the district court’s analysis of the 
final four shots fired by Officer McKee after he 
emerged from a breezeway and was confronted by Mr. 
White standing in an open area. In addressing that 
confrontation, the district court elected to break the 
four shots into two separate volleys of two shots each. 
It granted qualified immunity to McKee for firing the 
first two of the four shots but denied him qualified 
immunity for firing the final two.

Officer McKee fired at White after the latter had 
stopped running. The two men were fifteen feet apart 
and White now faced McKee while still grasping the 
knife and staring “blankly” at him. McKee aimed at 
White’s “center mass” and fired. Having chosen to 
separate the four shots into two distinct incidents, the 
district court analyzed the first of these as follows:

The Court finds that based on the evidence 
and the Court’s obligation not to impose 
hindsight on split-second decisions, a 
reasonable officer could reasonably have 
believed that White was an immediate threat 
even though he was fifteen feet away and 
standing still. Although other officers were in 
the area, there is no evidence that McKee was 
aware where any of the other officers were 
located other than Kracht and Frenz, who he 
knew were behind him but at an unknown 
distance. Accordingly, their general presence 
in the area does not show that any were close



20a

enough to truly provide support should White 
have decided to charge McKee. Further, 
although it is now clear that McKee could have 
retreated because he was in an open space, 
there is no evidence that he was aware of his 
surroundings at that time. It was dark, in an 
apartment complex and a suspect who had two 
previous confrontations with officers had 
stopped running to face him while holding a 
knife. This is an extremely close case but the 
Court finds that although McKee’s second 
shooting may not have ultimately been 
necessary, it was not an unreasonable use of 
force. McKee is entitled to qualified immunity 
for this round of shots . . . .

Stevens-Rucker, 242 F. Supp. 3d at 627-28. We agree 
with this reasoning to the extent that it grants 
qualified immunity with respect to the first two of 
those final four shots, but disagree with the district 
court’s view that the evidentiary record supports 
separating the final four shots into two distinct 
incidents. The district court correctly concluded that 
the record indicates that the first two shots fired by 
McKee were separated in time from the four 
subsequent shots; however, it failed to point to any 
evidence that the final four shots were likewise 
separated by such a significant gap in time that they 
must be viewed as distinct incidents requiring 
individualized analysis. Rather, the uncontroverted 
evidence supports a conclusion that the final four shots 
were fired in such rapid succession that they 
constituted a single event. Officer McKee testified in 
his deposition that only eight to ten seconds elapsed 
from the time that he fired his first shot at Mr. White



21a

until he fired his final shot. Moreover, according to his 
affidavit, “only a second or even fractions of a second” 
separated his final two shots from his third and fourth 
shots. This timeline is uncontroverted by the record 
and leads us to conclude that McKee’s firing of his 
weapon constituted two, not three, distinct incidents: 
the first includes the initial two shots, the second the 
final four.

With respect to the final two shots, the district 
court—once again focusing on the threat to the officer 
or the public—reached the following conclusion:

The Court disagrees that a reasonable officer 
would have felt immediately threatened by a 
knife wielding suspect on the ground ten to 
fifteen feet away suffering from at least one 
known gunshot. Regardless whether White 
was prone or attempting to push himself up, 
McKee was in an open field facing a man on 
the ground with a knife and rather than 
retreat to a safe position, take note of his 
surroundings, or call for backup, McKee shot 
White again while White was on the ground 
and fatally wounded him. Accordingly, 
Plaintiff has presented sufficient evidence, 
which if believed, could support a finding that 
McKee’s third set of shots were unreasonable.

Stevens-Rucker, 242 F. Supp. 3d at 629.
In the view of the district court, if Officer McKee 

was behaving like a reasonable police officer in the 
second or even fractions of a second separating his 
fourth shot from his final two, he would have weighed 
the following: that White was suffering from a gunshot



22a

wound; the viability of standing his ground, retreating, 
or calling for backup; that White was trying to push 
himself up; that he and White were separated by only 
ten to fifteen feet; and that White had twice failed to 
give himself up despite being confronted by an armed 
officer. The district court concluded that McKee, acting 
as a reasonable police officer, would have taken all of 
this into account and, after doing so, could not have 
reasonably believed that he was threatened by White. 
But the conclusion is untenable in light of McKee’s 
unrebutted affidavit testimony that only a second or 
even less elapsed between the third and fourth shots 
and the fifth and sixth shots.

Based upon the uncontroverted evidence, what the 
district court characterized as separate second and 
third salvos was, in our view, but a single shooting 
consisting of four shots fired within a second of one 
another. That was not enough time for Officer McKee 
to stop and reassess the threat level between the shots. 
He continued to use his firearm to stop what he 
justifiably perceived as an immediate threat to his 
safety.

For these reasons, we conclude that Officer McKee 
is entitled to qualified immunity in all respects, and 
we therefore reverse the judgment of the district court 
to the extent that it conflicts with this decision.

Qualified Immunity and Deliberate Indifference to
Serious Medical Needs
The district court denied defendants Frenz and 

McKee qualified immunity for plaintiffs claim that 
they violated White’s right to due process under the



23a

Fourteenth Amendment by showing deliberate 
indifference to his serious medical needs.

“Deliberate indifference requires that the 
defendants knew of and disregarded a substantial risk 
of serious harm to [the plaintiffs] health and safety.” 
Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th 
Cir. 2011) (citing Farmer v. Brennan, 511 U.S. 825, 
835—37 (1994)). A showing of deliberate indifference 
thus has objective and subjective components. Phillips 
v. Roane Cnty., 534 F.3d 531, 539 (6th Cir. 2008). The 
objective component is that the plaintiff must “show 
the existence of a ‘sufficiently serious’ medical need.” 
Id. (quoting Farmer, 511 U.S. at 834). The subjective 
component, by contrast, “requires a plaintiff to ‘allege 
facts which, if true, would show that the official being 
sued subjectively perceived facts from which to infer 
substantial risk to the [detainee], that he did in fact 
draw the inference, and that he then disregarded that 
risk.’” Id. at 540 (quoting Comstock v. McCrary, 273 
F.3d 693, 703 (6th Cir. 2001)).

The district court relied upon Estate of Owensby v. 
City of Cincinnati, 414 F.3d 596 (6th Cir. 2005), for the 
proposition that the Fourteenth Amendment imposes 
a duty upon officers to both summon and provide 
medical care. In Owensby, officers incapacitated 
plaintiff by first striking him with a baton and then 
placing him in handcuffs. Id. at 600. After he was 
handcuffed, plaintiffs face was doused with mace at 
close range. Certain officers continued to strike 
plaintiff before placing him in the back of a police 
cruiser. Six minutes passed before officers checked on 
plaintiff and discovered that he was not breathing. Id. 
at 601. Only then did officers call the rescue squad,



24a

which arrived four minutes later. The coroner later 
ruled the death a homicide resulting from police 
intervention.

Defendants rely upon their affidavits to explain 
why they did not render aid at the scene. Sergeant 
Frenz stated, “Because I believed more thoroughly 
trained medics would be arriving quickly, I did not 
believe it was necessary for me or any of the other 
CPD officers on the scene to provide First Aid, CPR, or 
any type of medical attention to the suspect.” In 
addition, he did not believe that his assistance would 
have saved White’s life. Officer McKee’s affidavit reads 
essentially verbatim.

Defendant officers point us to a recent decision of 
this court, Thomas v. City of Columbus, 854 F.3d 361, 
367 (6th Cir. 2017), in which we observed that “an 
officer does not act with reckless disregard when he 
immediately summons help and then focuses on his 
own safety.” In that case, officers had been summoned 
to an ongoing burglary. One officer mistakenly shot 
the victim who fled his dwelling holding the gun of his 
assailant. However, because the officer feared others 
were armed, and the victim appeared to be dead, he 
did not render aid himself. Wre stated. ”[h]e did not 
violate the Constitution by failing to render aid when 
doing so appeared both dangerous and futile.” Id. Our 
defendants read Thomas to establish that an officer 
need not render aid if doing so would be futile. At the 
very least, they contend that the contours of that right 
were not clearly established at the time of White’s 
death.

As these abbreviated summaries of Owensby and 
Thomas make clear, they are at best instructive with



25a

respect to the question before us. Unlike in Owensby, 
defendants did not ignore the physical condition of 
plaintiff for critical minutes while he lay dying. Nor 
did they face a danger to their own safety, as in 
Thomas, which prevented them from rendering 
immediate assistance. Rather, the record indicates 
that defendants did not personally perform CPR or 
provide other medical attention to White because they 
believed that trained medical assistance had been 
summoned and that their individual intervention 
would not have helped.

Under these circumstances, do defendants’ actions 
(or lack thereof) represent a violation of White’s right 
to due process under the Fourteenth Amendment? We 
conclude that they do not and therefore reverse the 
district court on this claim. In reaching this conclusion, 
we look to cases from the Ninth Circuit. In Maddox v. 
City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 
1986), the court addressed whether a jury instruction 
should have stated that “the fourteenth amendment 
due process clause requires officers to render CPR 
when a pretrial detainee in their custody is in need of 
CPR.” It held that no such instruction was required: 
“We have found no authority suggesting that the due 
process clause establishes an affirmative duty on the 
part of police officers to render CPR in any and all 
circumstances.” Id. Rather, “[d]ue process requires 
that police officers seek the necessary medical 
attention for a detainee when he or she has been 
injured . . .  by either promptly summoning the 
necessary medical help or by taking the injured 
detainee to a hospital.” Id.; see also Tatum v. City and 
Cnty. of S.F., 441 F.3d 1090, 1099 (9th Cir. 2006) 
(holding that “a police officer who promptly summons



26a

the necessary medical assistance has acted reasonably 
for purposes of the Fourth Amendment, even if the 
officer did not administer CPR”) (citing Maddox). The 
logic that underlies these cases makes sense: an officer 
is charged with providing a detainee with prompt 
medical attention. However, this attention does not 
require the officer to intervene personally. Imposing an 
absolute requirement for an officer to do so ignores the 
reality that such medical emergency situations often 
call for quick decisions to be made under rapidly 
evolving conditions. As long as the officer acts 
promptly in summoning aid, he or she has not 
deliberately disregarded the serious medical need of 
the detainee even if he or she has not exhausted every 
medical option. See Phillips, 534 F.3d at 540 
(observing that the subjective component of a 
deliberate indifference claim includes deliberate 
disregard for substantial risk to detainee).

We therefore hold that defendants Frenz and 
McKee are entitled to qualified immunity with respect 
to plaintiffs Fourteenth Amendment claim.
Municipal Liability for Constitutional Violations

As mentioned earlier, local government units can 
be held liable for § 1983 claims only if a constitutional 
violation has occurred. Monell, 436 U.S. 691. Because 
we hold that defendants Frenz and McKee did not 
violate Mr. White’s constitutional rights, the Monell 
claims against the City of Columbus also fail.
Immunity for State-Law Claims

In their briefs to this court, the parties agree that 
plaintiffs state-law claims against defendants Frenz 
and McKee survive or fail based upon the resolution of



27a

the federal claims against them. Because we have held 
that the individual defendants are entitled to qualified 
immunity with respect to the federal claims against 
them, judgment in their favor with respect to the 
state-law claims is also proper. As the district court 
also correctly held, the City of Columbus is likewise 
entitled to state-law immunity. Stevens-Rucker, 242 F. 
Supp. 3d at 633-34 (citing Ohio Rev. Code § 2744).

III.

The judgment of the district court is affirmed in part 
and reversed in part as outlined in this opinion. 
Judgment is granted in favor of defendants as to all 
claims.



28a

JANE B. STRANCH, Circuit Judge, 
concurring and dissenting. I agree that Officer 
Frenz’s use of force and Officer McKee’s first and 
second volleys of gunfire are entitled to qualified 
immunity and therefore concur with the majority on 
those issues. I do not, however, agree that the law and 
the facts of this case compel the result reached by the 
majority with respect to Officer McKee’s third use 
of force and the Plaintiffs deliberate indifference 
claim. I respectfully dissent on those issues.

The majority opinion today holds that police can 
shoot and kill a non-fleeing suspect who is already 
gravely wounded even when there is no immediate 
threat to the officers or the public. It reaches that 
conclusion by construing Officer McKee’s final four 
shots as a single and continuous use of force rather 
than as the last two uses of force, as was argued by 
Stevens-Rucker and necessarily conceded by the 
Officers. The district court also held that Officer 
McKee used force in “three distinct circumstances and 
. . . each must be segmented and analyzed 
individually.” I think this case should have been 
analyzed on the facts argued by the parties and found 
by the district court. DiLuzio v. Vill. of Yorkville, 796 
F.3d 604. 609 n.l. 611 (6th Cir. 2015) (holding that in 
qualified immunity cases, we usually “defer to the 
district court's factual determinations” and "ideally . . 
. look no further than the district court’s opinion for 
the facts and inferences cited expressly therein”).

Like the district court and the briefing of the 
parties. I believe our precedent compels us to 
disaggregate McKee’s three spates of gunfire. See 
Bouggess v. Mattingly, 482 F.3d 886. 890 (6th Cir.



29a

2007) (explaining that it is “crucial for the purposes of 
this inquiry to separate [the Officer’s] decision-points 
and determine whether each of his particular decisions 
was reasonable”); Dickerson v. McClellan, 101 F.3d 
1151, 1161 (6th Cir. 1996) (holding that in use of force 
cases we “analyze excessive force claims in segments”).

By lumping the second and third shootings 
together, the majority obscures material issues of 
disputed fact. But even if we assume that it might be 
appropriate and plausible to accept an interpretation 
of the facts that “only a second or even fractions of a 
second” separated the two shootings, Officer McKee’s 
own testimony supports a finding that sufficient time 
elapsed between the two volleys to allow him to 
deliberate and reassess whether force was required. 
Describing the circumstances, McKee explained that 
White “was laying [sic] on his left side kind of with his 
arm underneath, his left arm underneath almost in 
front of him, and was trying to post himself back up, 
meaning push up to get himself back off the ground.” 
McKee also refers to these shots as the second in a 
series of “double-taps,” not as an unpunctuated, single 
set of four shots. Thus, this record reveals a 
quintessential dispute of material fact that renders 
summary judgment inappropriate, particularly in an 
appeal of the denial of qualified immunity.

But even if we undertake review and apply our 
precedent to the third volley of shots by Officer McKee, 
we should affirm the district court’s denial of qualified 
immunity. First, I acknowledge that there may be 
instances in which the police could lawfully use lethal 
force to subdue an already wounded suspect. For 
example, in Boyd v. Baeppler, 215 F.3d 594, 603 (6th



30a

Cir. 2000), we held that an officer was entitled to 
qualified immunity when he fired on a prone, wounded 
suspect. But there, the officers’ explanation of the 
events was supported by eyewitness and forensic 
evidence in the record, and the suspect was pointing a 
pistol at the officers. Id. We made it clear, moreover, 
that the question of law at issue was “about the 
conduct of police acting in self-defense, not about 
pursuit of a fleeing felon or suspect.” Id. at 602-03. We 
also addressed the situational use of deadly force in 
Bouggess, applying an objective assessment of the 
danger posed. 482 F.3d at 890. We concluded, “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 (collecting cases). Properly 
reviewing that district court’s determinations, we 
denied qualified immunity.

Also applicable here is our precedent addressing 
the concerning fact that in many qualified immunity 
cases involving the use of deadly force, the witness 
most likely to contradict a defendant officer’s story is 
the person killed by the officer. In such situations, we 
“may not simply accept what may be a self-serving 
account by the police officer.” Jefferson u. Lewis, 594 
F.3d 454, 462 (6th Cir. 2010) (internal quotation 
marks and citation omitted). Instead, we “must look at 
the circumstantial evidence that, if believed, would 
tend to discredit the police officer’s story.” Id.

Drawing all reasonable inferences in favor of the 
nonmoving party, as we must, McKee’s testimony 
indicates that he had sufficient time to evaluate 
White’s movements, discern his intent to get back up,



31a

and elect to fire again. Reasonably inferring that 
McKee possessed sufficient time to deliberate 
regarding whether additional force was necessary, a 
jury could have concluded that, under the 
circumstances, the use of such force was unreasonable. 
The threat posed by White is an order of magnitude 
less than the threat posed in cases where a suspect has 
a firearm. White was armed only with a knife, lay 15 
feet from officers in an open field, and there were no 
civilians in the immediate vicinity. Numerous other 
officers were descending on the scene to reinforce 
McKee and their arrival was imminent. It is simply 
not a plausible argument that McKee was in 
immediate danger when he delivered the fatal shots. 
The majority’s decision to depart from precedent and 
lump the second and third shootings together therefore 
distorts both the governing precedent and the factual 
reality.

With respect to the Plaintiffs deliberate 
indifference claim, the majority opinion relies on the 
30 year-old decision of Maddox v. City of Los Angeles, 
792 F.2d 1408, 1415 (9th Cir. 1986), for the proposition 
that the Due Process Clause does not establish “an 
affirmative duty on the part of police officers to render 
CPR in any and all circumstances.” That may be but 
subsequent decisions clarify that when law 
enforcement officers fail to provide CPR not “because 
they were busy with other tasks” but because they 
were merely waiting for more trained individuals, “a 
trier of fact could conclude that, looking at the full 
context of the situation, officers trained to administer 
CPR who nonetheless did not do so despite an obvious 
need demonstrated... deliberate indifference.” Lemire 
v. California Dep’t of Corr. & Rehab., 726 F.3d 1062,



32a

1083 (9th Cir. 2013). In other words, even if there is 
not a per se duty to administer CPR, some 
circumstances create a duty for first responders to 
render such aid. As in Lemire, the officers here neither 
feared for their own safety nor were they busy with 
other tasks. In spite of their training as first 
responders, they elected to leave White handcuffed, 
facedown, and dying as opposed to rendering aid. 
Because I think that the Constitution requires more of 
officers in these circumstances, I cannot support the 
majority opinion’s conclusion with respect to the 
Plaintiffs deliberate indifference claim.

This police shooting also points to a broader, 
troubling pattern. After serving his country in the war 
in Iraq, Jason White returned to the United States as 
a decorated veteran suffering from significant mental 
health problems. On the day the police shot him, he 
was suffering an acute mental health incident. 
Although we lack comprehensive data, “[i]t is safe to 
say that a third to a half of all use-of-force incidents 
involve a disabled civilian.” David M. Perry & 
Lawrence Carter-Long, The Ruderman White Paper on 
Media Coverage of Law Enforcement Use of Force and 
Disability 7 (2016). People with mental illness are 16 
times more likely to be killed by police. See Liz Szabo, 
People with mental illness 16 times more likely to be 
killed by police, USA Today (Dec. 10, 2015, 4:05 am) 
h t t p s : / / w w w . u s a t o d a y . c o m /  
s t o r y / n e w s / 2 0 1 5 / 1 2 / 1 0 / p e o p l e - m e n t a l -  
illness-16-times-more-likely-killed-police/77059710/.

https://www.usatoday.com/


33a

This is a societal problem and police are often 
caught in an unenviable position on the frontlines of 
mental health emergencies. Our criminal justice 
system, moreover, serves as the de facto treatment 
provider for many individuals with mental illness, and 
the majority of jail inmates suffer from a mental 
health condition. See National Conference of State 
Legislatures, Mental Health Needs in the Criminal 
J u s t i c e  S y s t e m  ( M a y  1, 2 0 1 7 ) ,
http://www.ncsl.org/research/civil-and-criminal- 
justice/mental-health-needs-of-criminal-justice.aspx. 
In spite of this reality, our police forces are often 
woefully ill-equipped to safely address the presenting 
issue or the ongoing needs of these individuals. See 
Norm Ornstein & Steve Leifman, How Mental-Health 
Training for Police Can Saves Lives—and Taxpayer 
Dollars, The Atlantic (Aug. 11, 2017),
https://www.theatlantic.com/politics/archive/2017 
/08/how-m ental-health-training-for-police-can- 
save-livesand-taxpayer-dollars/536520/.

Our failure as a society to adequately address the 
treatment of mental health problems routinely leaves 
these problems to be addressed through the criminal 
justice system. But the laws governing crime are a 
poor fit for the reality of dealing with mental health 
issues, perhaps because the selection of law 
enforcement officers and their training occupies so 
little common ground with the selection and training 
of those who treat mental health issues. And then we 
add the layer of qualified immunity that excuses “all 
but the plainly incompetent or those who knowingly 
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 
(1986). This over-thickening shield does little to force 
society to reconsider the propriety of leaving mental

http://www.ncsl.org/research/civil-and-criminal-justice/mental-health-needs-of-criminal-justice.aspx
http://www.ncsl.org/research/civil-and-criminal-justice/mental-health-needs-of-criminal-justice.aspx
https://www.theatlantic.com/politics/archive/2017


34a

health issues in the hands of police officers untrained 
to handle them. At least two members of the Supreme 
Court have concluded that the recurring grant of 
qualified immunity in these incidents sends the wrong 
message to law enforcement officers and “tells the 
public that palpably unreasonable conduct will go 
unpunished.” Kisela v. Hughes, 138 S. Ct. 1148, 1162 
(2018) (Sotomayor, J. dissenting). In addressing these 
events, I think we have embarked on the wrong road 
and the place to which it leads will prove detrimental 
to law enforcement, those with mental health issues, 
and our society as a whole. “Because there is nothing 
right or just under the law about this, I respectfully 
dissent.” Id.



35a

APPENDIX B

United States District Court 
Southern District of Ohio 

Eastern Division

PATTI STEVENS-RUCKER, Administrator of 
The Estate of Jason White, Deceased,

Plaintiff,

v.

CITY OF COLUMBUS, et al.,

Defendants.

Case No.: 2:14-CV-2319 
JUDGE SMITH 

Magistrate Judge Deavers

OPINION AND ORDER

This matter is before the Court upon the Motion 
for Summary Judgment of Defendants the City of 
Columbus (“Columbus”), Sergeant John Frenz, and 
Officer Dustin McKee of the Columbus Police 
Department (“Defendants”) (Doc. 57). Plaintiff opposed 
Defendants’ Motion (Doc. 86) and Defendants replied 
in support (Doc. 95). Additionally pending is Plaintiffs 
Motion for Leave to File a Surreply (Doc. 96) and 
Defendants’ response to the Motion for Leave (Doc. 97). 
The Motions are now ripe for review. For the following 
reasons, Plaintiffs Motion for Leave is GRANTED



36a

and Defendants’ Motion for Summary Judgment is 
GRANTED in part and DENIED in part.

I. BACKGROUND

This case arises out of the death of Plaintiffs 
decedent Jason White (“White”) on November 17, 2013 
in Hilliard, Ohio. White died after sustaining gunshot 
wounds from defendant Sergeant Frenz (“Frenz”), from 
defendant Officer McKee (“McKee”), and, potentially 
from former defendant Officer Jason Alderman 
(“Alderman”).

On November 17, 2013, White entered the home of 
Ashley Cruz at around 5:00 a.m. while Cruz was 
sleeping on the couch with the door unlocked. (Doc. 58, 
Cruz Aff. at f f  2-5). Cruz woke up when White 
entered and observed an African American man 
wearing no shirt, jeans, and a camouflage fishing hat. 
{Id). Cruz did not recognize White. {Id). White was 
holding a large kitchen knife and was sliding his hand 
on the blade. {Id. at f 6). Cruz turned on the lights and 
told White to leave her apartment. {Id. at f f  7—8). 
White did not leave, but just kept looking around 
Cruz’s apartment. {Id. at f f  8—9). When Cruz’s baby 
began crying, Cruz told White to stay where he was 
while she retrieved her baby. (Id. at f f  9-10). When 
Cruz returned to the room, she asked if White wanted 
water, food, or a coat but White appeared confused and 
asked Cruz what she was doing in his home. {Id. at f t  
13-15). White then began exiting and reentering the 
apartment stating that something happened to him 
and that something was not right. {Id. at f f  17—20). 
When White eventually left the apartment and walked 
to a nearby landing, Cruz shut the door, locked the 
door, and woke up her boyfriend. {Id. at f f  21— 23).



37a

Once the door was closed, White tried the handle 
again. (Id.). Cruz then called 911, relaying the earlier 
events. (Doc. 88, Manually filed CD of Cruz 911 Call 
(“Cruz 911 Call”)). Cruz informed the operator that 
White may have been on drugs because White was not 
making any sense. (Id.). While Cruz was on the phone 
with 911, White continued coming back to Cruz’s door, 
trying to turn the knob and pounded on other doors in 
the area. (Doc. 88, Cruz 911 Call; Doc. 58, Cruz Aff. at 
11 26-27).
A. Officer Alderman

Alderman was the first on the scene and recalls 
hearing a 33A call,1 dispatching Wagon 1581 2 to Cruz’s 
apartment. (Doc. 83-1, Alderman Dep. at 40; Doc. 70, 
Alderman Aff. at H  22, 29). Alderman heard that a 
caller had informed 911 that there was a man with a 
knife banging on her door. (Doc. 83-1, Alderman Dep. 
at 42-43; Doc. 56, Manually filed CD of Police Audio 
#001 (“Columbus Audio”)). Alderman does not recall 
hearing that White’s speech was incoherent but the 
dispatcher did inform Wagon 158 that White was “out 
of it. He was talking but it made no sense.” (Doc. 83-1, 
Alderman Dep. at 43; Doc. 56, Columbus Audio #001). 
While Wagon 158 was in transit to Cruz’s apartment, 
Alderman received an update that White was 
attempting to enter Cruz’s home, meaning there was 
possibly a burglary attempt which requires two officers 
at a minimum. (Doc. 83-1, Alderman Dep. at 44; Doc.

1 A 33A call means that there is a report of a person with 
a knife. (Doc. 83-1, Alderman Dep. at 40).

2 Wagon 158 contained Officers Joel Mefford and Brian 
Smith. (Doc. 67, Mefford Aff. at f  15).



38a

56, Columbus Audio #005, #008). Frenz recalls 
hearing that there was a man-with-a-knife call and 
that the man had entered an apartment with a knife 
in his hand. (Doc. 83-2, Frenz Dep. at 50). As the 
supervising officer of the precinct, Frenz did not plan 
on responding to the call, but told his officers to enter 
with lights and sirens. (Id. at 51). xALderman responded 
to the call for additional help and drove to Cruz’s 
apartment complex because he was only two minutes 
away. (Doc. 83- 1, Alderman Dep. at 63-64; Doc. 56, 
Columbus Audio #008). Alderman saw White as he 
pulled in to the area. (Doc. 83-1, Alderman Dep. at 65). 
At the time, White was not carrying a weapon. (Id.). 
Alderman approached White with his gun drawn in a 
breezeway as the two men faced each other. (Id. at 
65, 70—71). Alderman informed dispatch that he had 
had a suspect at gunpoint. (Doc. 56, Columbus Audio 
# 010).

Alderman was 45-60 feet away from White at first 
and told White to show his hands. (Doc. 83-1, 
Alderman Dep. at 72—73). White complied with this 
order and Alderman approached. (Id.). Alderman 
asked White to turn around and White complied. (Id. 
at 76—77). However, when White turned around, he 
dropped his hands to his side. (Id.). Alderman saw 
at least two knives in White’s back pockets. (Id.). 
Alderman yelled at White to put his hands back up but 
White did not comply. (Id.). Instead, White turned 
around—still unarmed—and faced Alderman and 
continued to ignore Alderman’s commands. (Id. at 
78-79). Alderman then withdrew his Taser while 
keeping his gun drawn in his other hand. (Id.). After 
White did not comply with another command to get on 
the ground, Alderman fired his Taser at White from



39a

about 10 to 15 feet away then put his Taser away. (Id. 
at 80—81). White tensed up and fell backwards but got 
up swiftly with a large kitchen knife in his hand. (Id. 
at 81—83). White then started moving toward 
Alderman with the knife drawn and the blade pointed 
up. (Id.). Alderman notified dispatch that White was 
running towards him. (Doc. 56, Columbus Audio#012). 
Alderman then fired four shots at White from eight to 
ten feet away. (Doc. 83-1, Alderman Dep. at 83-84).3 
After Alderman fired his four shots, White turned and 
ran the opposite direction. (Id. at 86). Alderman did 
not chase White as he was unfamiliar with the area, 
relatively new to the force, and was shaken from 
discharging his weapon. (Doc. 83-1, Alderman Dep. at 
87). Another officer, Officer John Groom, arrived on 
the scene and notified the dispatcher that Alderman 
fired shots. (Doc. 56, Columbus Audio #016). Groom 
secured Alderman who was shaken by the incident 
rather than chase White or speak to Cruz. (Doc. 84-4, 
Groom Dep. at 29). Groom stayed with Alderman while 
Sergeant Siford went to speak to Cruz regarding her 
report.4 (Id. at 33). Alderman had no further contact

3 It is not clear if any of Alderman’s bullets struck White, 
but a determination of that fact is not necessary to the resolution 
of this case. (Doc. 83-1, Alderman Dep. at 85).

4 It is unclear why Plaintiff states that “none of these 
20-30 responding officers contacted Ashley Cruz . . . until well 
after Jason White had been shot to death almost an hour later,” 
when Officer Groom clearly testified that an officer went to 
Cruz’s apartment on the same page of Officer Groom’s deposition 
transcript cited by Plaintiff. (Doc. 86, Mem. Opp. at 12). An 
unidentified officer also noted that he was with Apartment 302, 
the address for Ashely Cruz, at 5:25:45 a.m., after Alderman’s 
interaction with White but well before Frenz’s interaction with



40a

with White and did not participate in the later search 
for White. (Doc. 83-1, Alderman Dep. at 91).
B. Officer Frenz

The next officer to come into contact with White 
was Frenz. After hearing that Alderman had a suspect 
at gunpoint, Frenz had ordered a “10-3” run, meaning 
a run for an officer in trouble. (Doc. 83-2, Frenz Dep. 
at 51). A “10-3 run” means that every officer able to 
respond in the area would go to the location to help. 
(Id. at 52). Frenz left the station and met up with 
McKee and Officer Jeffrey Kracht at Saddlebrook 
apartments, a separate, but nearby apartment 
complex, where Frenz planned to set up a perimeter. 
(Id. at 87—88). After parking his vehicle and 
instructing Kracht and McKee to set up the perimeter, 
Frenz spotted White crouched by the corner of 
building, hiding his hands, and peering around the 
corner of the building. (Id. at 93— 94). Because 
Alderman had shot at White and White had entered an 
apartment with a knife, Frenz drew his gun and his 
flashlight and ordered White to show his hands. (Id.). 
Although Frenz had heard that White’s speech was 
incoherent, Frenz stated that he was more concerned 
“that [White] was dangerous more than considering a 
specific mental disturbance, simply not knowing what 
was going on with him.” (Id. at 95). Frenz ordered 
White to show his hands multiple times but White did 
not comply and instead stood up and moved around the 
building. (Id. at 97). On the south side of the

White. (Doc. 56, Columbus Audio #034, #408). Additionally, an 
officer aired that he had made contact with the 911 caller at 
Apartment 302 before White’s death. (Id. at #048).



41a

apartment building, there was a small area 
partitioned off by a fence which contained air 
conditioning units. (See Docs. 87-8, 87-9, 87-11, 87-12). 
The fenced off area had openings at both the western 
and eastern ends. (Doc. 83-2, Frenz Dep. at 101). 
White entered on the eastern side, moving west. (Id. at 
100). The fence was short, maybe two to three feet. 
(Id. at 101—102; Doc. 83-8, Kracht Dep. at 36).

Frenz approached the fence from the eastern end 
while White crouched down inside and behind the 
fence. (Doc. 83-2, Frenz Dep. at 102). Frenz looked 
through the opening and saw White crouched down. 
(Id). Frenz could not see White’s hands so he again 
ordered White to show his hands. (Id. at 104). White 
did not show his hands but instead, stood up and faced 
Frenz while holding a knife. (Id). At 5:43:56 a.m., 
Frenz aired that he had the suspect in the back. (Doc. 
56, Columbus Audio #408). At the time White stood up 
and faced Frenz, White was twenty feet away from 
Frenz. (Doc. 83-2, Frenz Dep. at 105). Frenz told White 
to drop the knife and get on the ground which White 
did not do. (Id. at 104). Frenz, still at the eastern end 
of the fence enclosure, moved slightly south when he 
saw an officer west of his position and heard a 
reminder to avoid crossfire. (Id. at 105). Officer Kracht 
had taken up position by the fence, approaching from 
the west end. (Doc. 83-8, Kracht Dep. at 37-38). He 
observed that White had his back to the siding of the 
apartment building within the fenced in area holding 
a knife to his side. (Id. at 35). It is unclear from 
Kracht’s deposition where he observed Frenz, but his 
affidavit states that he saw Officer Frenz at the



42a

eastern edge of the fence enclosure.5 (Kracht Aff. at f  
50). Seeing that Frenz had White at gunpoint, Kracht 
holstered his gun and withdrew his Taser. (Doc. 83-8, 
Kracht Dep. at 37). Frenz stated that he moved so that 
he was not standing opposite of the other officer, 
using the eastern end of the fence for cover and 
keeping it between him and White. (Doc. 83-2, Frenz 
Dep. at 106-07, Ex. 19).6 Kracht was positioned near 
the opening on the western end and White was in the 
middle of the fenced in area. (Doc. 83-8, Kracht Dep. at 
42-43).

5 Plaintiff argues that “Kracht testified that he took up a 
position at the southwest corner of the enclosure, which is by all 
accounts within feet of where Frenz was located.” (Doc. 96, 
Surreply at 12 (citing Kracht Dep. 37:23-38:2, 42:13-20)). 
However, after a careful review of the depositions of both Kracht 
and Frenz, there is no evidence that Frenz was within feet of 
Kracht or that “Kracht was standing very near Frenz when Frenz 
shot Jason.” (Id.). Rather, as Plaintiff notes, Frenz started at 
“the northeast corner of the enclosure” before “m oving south” 
and that “Kracht testified that he took up a position at the 
southwest corner of the enclosure.” (Id. (emphasis in original)). 
How Frenz—who moved south from the northeast corner to the 
southeast corner of the enclosure—could be “very near” an officer 
at the southwest corner is unexplained by Plaintiff. There is no 
evidence that Frenz ever moved west of the center of the 
enclosure or even any more than mere feet west of the 
southeastern corner.

6 Frenz noted he used the portion of the fence visible in 
Exhibit 19 as cover once he moved. (Doc. 83-2, Frenz Dep.at 107). 
The portion offence is the eastern side of the enclosure. (See Doc. 
87-12, Photo 19). Frenz also indicated that he was near the 
bumper of a car in photo 19. (Id.). It is unclear to which vehicle he 
is referring as there are at least two bumpers visible in the photo. 
(Id.).



43a

White continued to stare at Frenz. (Doc. 83-2, 
Frenz Dep. at 108; Doc. 83-3, McKee Dep. at 76). 
Kracht then deployed his Taser toward White’s right 
side. (Doc. 83-8, Kracht Dep. at 44—45) The Taser was 
not effective. (Id.). After Kracht deployed his Taser, 
White turned to his left and began to run eastbound 
toward the opening he originally entered. (Doc. 83-8, 
Kracht Dep. at 45-46). Frenz stated that White 
started moving toward him, moving eastbound along 
the wall toward the east exit of the enclosure which 
Frenz interpreted as White coming at him. (Doc. 
83-2, Frenz Dep. at 108—109).' In order to reach Frenz 
with a knife, White would have had to exit the 
enclosure then turn to his right or southbound. (Id. at 
110). Frenz did not wait for White to reach the exit of 
the enclosure. (Id). Frenz states that he moved further 
west as White moved east and fired three shots at 
White while White was still inside the enclosure, 
striking him once in the left shoulder area. (Id. at 110, 
112; Doc. 79, Frenz Aff. at 124). Frenz believes he 
was six to eight feet from White and standing in the 
grassy area on the south side of the enclosure when he 
fired. (Doc. 83-2, Frenz Dep. at 70, 78; Doc. 79, Frenz 
Aff. at If 132).7 8 At the time Frenz shot White, McKee

7 Plaintiff argues that following Kracht’s deployment of 
the Taser, White “turned toward the east exit away from Kracht 
and Frenz.” (Doc. 86, Mem. Opp. at 15 (emphasis in original)). It 
is not clear how Plaintiff determined that White was turning 
away from Frenz as there is no evidence which suggests that 
Frenz was anywhere but east of White’s position at the time of the 
Taser deployment.

8 Plaintiff attempts to argue that the distance between the 
two is in dispute because “Sgt. Frenz was approximately 15-20 
feet from Jason White and separated by a privacy fence, which is



44a

was maybe thirty yards away from Frenz.9 (Doc. 83-3, 
McKee Dep. at 79). McKee recalls seeing White near 
the eastern enclosure and Frenz in the grass or mulch 
that is visible in Photo 18. (Doc. 83-3, McKee Dep. at 
76; Doc. 87-11, Photo 18). After Frenz shot White, 
White stumbled back and leaned against the wall. 
(Doc. 83-2, Frenz Dep. at 110). In Photos 18, 19, and 
22, there is clear evidence of blood on the wall near the 
eastern exit of the enclosure and outside of the 
enclosure on the southeastern corner of the apartment 
building. (Docs. 87-11, 87-12, and 87-10). McKee saw 
White’s blood splatter on to the wall after Frenz fired 
his weapon. (Doc. 83-3, McKee Dep. at 78). When 
Frenz saw White lean against the wall, he knew he 
had made contact and fired no more shots. (Doc. 83-2, 
Frenz Dep. at 113). At 5:44.17, McKee aired that shots 
were fired. (Doc. 83-3, McKee Dep. at 77; Doc. 56, 
Columbus Audio #409). White then fled, making it 
around the southeastern corner of the building then 
continuing north along the building before running

well beyond this reactionary gap.” (Doc. 86, Mem. Opp. at 17-18). 
The Court agrees that White and Frenz were 15 to 20 feet apart 
at some point in time in their encounter. (Doc. 83-2, Frenz Dep. at 
105). However, there is nothing in the record that contradicts 
Frenz’s testimony that White was six to eight feet away when 
Frenz discharged his firearm or that White moved toward Frenz 
before Frenz discharged his firearm. (Id. at 70, 78).

9 There is no evidence in the record to support Plaintiffs 
assertion that “Frenz was accompanied by Kracht and McKee 
when he fired” as McKee testified he was thirty yards away. (Doc. 
86, Reply at 17; Doc. 83-3, McKee Dep. at 78). Furthermore, 
according to all three officers, McKee was chasing White from 
behind Frenz and Kracht in the ensuing chase. (Doc. 83-8, Kracht 
Dep. at 49-50; Doc. 83-2, Frenz Dep. at 115-17, Doc. 83-3, McKee 
Dep. at 78- 80).



45a

westbound through a breezeway. (Doc. 83-2, Frenz 
Dep. at 115-16; Doc. 83-3, McKee Dep. at 79; Doc. 
83-8, Kracht Dep. at 49-50). McKee, Kracht, and 
Frenz were all pursuing White. (Doc. 83-8, Kracht 
Dep. at 49—50; Doc. 83-2, Frenz Dep. at 115).
C. Officer McKee

McKee does not recall the immediate moments 
after Frenz shot White, but recalls that he was soon 
behind White, running northbound on Gables Lake 
Boulevard. (Doc. 83-3, McKee Dep. at 80). McKee did 
not follow Frenz, Kracht, and White around the east 
side of the building, but instead ran northbound on 
Gables Lake and saw White come west out of the 
breezeway then head north. {Id). As White turned 
north, McKee pursued him. {Id). At the time, Frenz 
was still in front of McKee, but was to McKee’s left and 
out of McKee’s sight-line to White. {Id). Kracht was 
even with Frenz and was aware that McKee was in the 
area, although he was not sure exactly where McKee 
was at that time. (Doc. 83-8, Kracht Dep. at 53—54). 
Frenz was unaware McKee was behind him. (Doc. 
83-2, Frenz Dep. at 117). At the time, Officer Joel 
Mefford was approaching Gables Lake from the west 
and observed White running. (Doc. 84-1, Mefford Dep. 
at 44-46). Mefford observed that White was limping 
but still maintaining a good running pace. {Id). He 
further noted that there was visible blood on the side 
of White’s body and White was still holding a knife in 
his right hand. {Id). McKee was aware that other 
officers were in the area, but he was not aware how 
many were on scene at that time. (Doc. 83-3, McKee 
Dep. at 88). When White was roughly 20 to 25 feet 
away and running away from McKee, Frenz, and



46a

Kracht, McKee fired two shots at White’s back. (Doc. 
83-3, McKee Dep. at 61-62). McKee slowed while 
running, crouched down, and shot with both hands. 
(Id. at 64). One of McKee’s bullets may have struck 
White in the lower left back (“Wound C”). (Doc. 83-3, 
McKee Dep. at 100; Doc. 64, Daniels Aff. at If If 25-32).

Frenz, not knowing where the shots came from, 
crouched and slowed down, stopping his chase. (Doc. 
83-2, Frenz Dep. at 117-118). Kracht yelled “Dustin!” 
at McKee to indicate that his shots could have hit 
Frenz or Kracht then continued giving chase with 
McKee. (Doc. 83-8, Kracht Dep. at 56-57; Doc. 83-3, 
McKee Dep. at 80-81). While giving chase, McKee 
continued to order White to drop the knife and stop 
running. (Doc. 83-3, McKee Dep. at 82-83). White 
next took a right turn eastbound through a breezeway. 
(Id. at 81). McKee slowed down in the breezeway to 
avoid an ambush and continued to advance with his 
gun drawn. (Id.). At the end of the breezeway, McKee 
observed that White had stopped and turned to face 
the breezeway. (Id. at 82). McKee continued out of the 
breezeway to face White. (Id. at 82). When McKee 
stopped chasing, he and White were “no more than 15 
feet” apart. (Id. at 83—84). McKee had his gun drawn 
and held high, but his finger was not on the trigger. 
(Id. at 84). White did not say anything to McKee and 
had a blank facial expression. (Id. at 85). Kracht 
rounded a corner and saw White standing still, facing 
him but does not recall seeing McKee. (Doc. 83-8, 
Kracht Dep.at 59). White was holding a knife and 
Kracht had his gun drawn. (Id. at 60-61). Officer 
Merino also arrived on the scene while White was still 
standing. (Doc. 83-9, Merino Dep. at 24-26).



47a

McKee then fired two shots at White’s center mass. 
(Doc. 83-3, McKee Dep. at 85). Even though McKee 
was fifteen feet away from White, McKee testified that 
he felt that White would have been able to close that 
distance before McKee would be able to put his finger 
on the trigger and fire. (Id.). McKee testified that he 
felt that White was going to attack him. (Id. at 95). 
McKee knew he hit White with at least one shot 
because White fell to the ground. (Id. at 86). Kracht 
does not recall exactly what he saw when White was 
shot, but recalls White on the ground on his back. 
(Doc. 83-8, Kracht Dep. at 62). Officer Merino saw 
White standing with a knife in his hand then saw him 
fall to the ground, first to his knees then to his back. 
(Doc. 83-9, Merino Dep. at 24-27).

McKee held his position then states that he saw 
White began to get back up from a prone position. 
(Doc. 83-3, McKee Dep. at 86). White was lying on his 
left side with his right arm underneath his body using 
his left arm to push himself off of the ground. (Id.). 
Kracht does not recall seeing White trying to get up off 
of the ground. (Doc. 83-8, Kracht Dep. at 62). McKee 
fired two more shots at White, fatally striking him in 
the left chest with one of the shots. (Doc. 83-3, McKee 
Dep. at 86-87).
D. Actions of the Officers Following the Final

Shots
Numerous other officers immediately arrived on 

the scene. (Doc. 83-3, McKee Dep. at 86—87; Doc. 
83-9, Merino Dep. at 27; Doc. 83-2, Frenz Dep. at 121). 
Frenz and Kracht saw White putting the knife up to 
his own neck while lying flat on his back. (Doc. 83-2, 
Frenz Dep. at 121; Doc. 83-8, Kracht Dep. at 65). Once



48a

White stopped moving, Kracht removed the knife from 
White’s hand, rolled White onto his stomach, and put 
White in handcuffs. (Doc. 83-3, McKee Dep. at 86—87; 
Doc. 83-8, Kracht Dep. at 65-67; Doc. 83-2, FrenzDep. 
at 121). Kracht felt safe to approach White because 
he presumed that White was dead. (Doc. 83-8, Kracht 
Dep. at 67). Merino could hear White gasping for air 
and could see blood pumping out of White’s chest. (Doc. 
83-9, Merino Dep. at 28). Merino stated that he held 
White’s leg while Kracht removed the knife from 
White’s hand and helped Kracht turn White over. (Id. 
at 30-31). Merino could tell that White was still 
breathing when he was on his stomach being 
handcuffed. (Id.). At 5:45:49, an officer tells dispatch 
the officer is going to need a medic. (Doc. 56, Columbus 
Audio #413). In the same recording an officer aired 
that they were going to get a squad to the suspect at 
5:45. (Doc. 56, Columbus Audio #413).10

No officer attempted to provide medical aid to 
White. (Doc. 83-9, Merino Dep. at 33—34; Doc. 83-6, 
Shaw Dep. at 24; Doc. 83-2, Frenz Dep. at 121). Merino 
left White and secured the scene to make sure that all 
necessary evidence could be collected. (Doc. 83-9, 
Merino Dep. at 35). Merino understood that he was 
leaving White to die in the grass when he got up and

10 After White was handcuffed, McKee was walked to his 
cruiser by another officer and was then taken by officer support 
to the training academy. (Doc. 83-3, McKee Dep. at 89—90). 
Kracht—presumably still believing that White was 
deceased—walked away from the scene southbound to calm 
himself. (Doc. 83-8, Kracht Dep. at 70). A detective interviewed 
Kracht at the scene. (Id. at 74).



49a

walked away.11 (Doc. 83-9, Merino Dep. at 34). About 
15 minutes passed between when officers calling for 
EMS and when Lieutenant Shaw of Columbus Fire 
and Rescue arrived. (Doc. 83-6, Shaw Dep. at 21). 
Columbus Fire and Rescue was not first on the scene, 
however, as a paramedic from the Norwich Township 
Fire Department was already next to White. {Id. at 
17). The Norwich paramedic had already determined 
that White had no pulse and was not breathing. {Id.). 
Shaw recommended that they turn White over and 
check him for a pulse and breaths which they did not 
find. {Id. at 17, 25-26). Shaw determined that no 
medical intervention would save White and 
pronounced that White was deceased within five 
minutes of his arrival. {Id. at 28-29).

Plaintiff, White’s mother and administrator of his 
estate, filed this suit in 2014 alleging that Alderman, 
Frenz, and McKee used excessive force in violation of 
42 U.S.C. § 1983, and that Alderman, Frenz, and 
McKee were deliberately indifferent to White’s serious 
need for medical care in violation of 42 U.S.C. § 1983. 
(Doc. 1, Compl. at 37-49). Plaintiff also sued the 
City of Columbus and Chief of Police Kim Jacobs for 
failure to properly train or supervise the officers and 
for having customs or policies ratifying constitutional 11

11 Defendant objected to this question during deposition 
testimony but the Court finds no evidentiary objection 
appropriate to exclude it. (Doc. 83-9, Merino Dep. at 34). 
However, the Court notes that Plaintiffs characterization of 
Merino’s testimony as indicative of the state of mind of every 
officer on the scene is incorrect. (See Doc. 86, Mem. Opp. at 48 
(“The Columbus police officers understood that they ‘were leaving 
Jason to die there in the grass when [they] got up and walked 
away from him.”’) (citing Doc. 83-9, Merino Dep. at 34)).



50a

violations under 42 U.S.C. § 1983. (Id. at f  f  50-58). 
Plaintiff also brought wrongful death, assault and 
battery, and intentional infliction of emotional distress 
claims against each of the defendants. (Id. at *[ff 59- 
72). Plaintiff dismissed Chief Jacobs on July 7, 2015, 
and Alderman on September 18, 2015. (Docs. 34, 36). 
The remaining Defendants now move for summary 
judgment on all of Plaintiffs remaining claims.

II. STANDARD OF REVIEW

Defendants moved for summary judgment 
pursuant to Rule 56 of the Federal Rules of Civil 
Procedure. Summary judgment is appropriate “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 Court’s purpose in considering a summary 
judgment motion is not “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). A 
genuine issue for trial exists if the Court finds a jury 
could return a verdict, based on “sufficient evidence,” 
in favor of the nonmoving party; evidence that is 
“merely colorable” or “not significantly probative,” 
however, is not enough to defeat summary judgment. 
Id. at 249-50.

The party seeking summary judgment shoulders 
the initial burden of presenting the court with law and 
argument in support of its motion as well as 
identifying the relevant portions of ‘“the pleadings, 
depositions, answers to interrogatories, and 
admissions on file, together with the affidavits, if any,’ 
which it believes demonstrate the absence of a genuine



51a

issue of material fact.” Celotex Corp. v. Catrett, 477 
U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If 
this initial burden is satisfied, the burden then shifts 
to the nonmoving party to set forth specific facts 
showing that there is a genuine issue for trial. See Fed. 
R. Civ. P. 56(e); see also Cox v. Ky. Dep’t ofTransp., 53 
F.3d 146, 150 (6th Cir. 1995) (after burden shifts, 
nonmovant must “produce evidence that results in a 
conflict of material fact to be resolved by a jury”). In 
considering the factual allegations and evidence 
presented in a motion for summary judgment, the 
Court must “afford all reasonable inferences, and 
construe the evidence in the light most favorable to the 
nonmoving party.” Id.

III. DISCUSSION

Defendants moved for summary judgment, arguing 
that Frenz and McKee are entitled to qualified 
immunity on Plaintiffs excessive force and deliberate 
indifference claims. Defendants further argue that 
there is no municipal-liability claim because there 
were no underlying constitutional violations, that 
Plaintiff cannot identify a specific custom or policy 
which caused a violation of White’s constitutional 
rights, and that Columbus’ training of its officers was 
more than adequate. Last, Defendants argue that 
Frenz, McKee, and Columbus are immune from 
Plaintiffs state-law claims under Ohio Revised Code § 
2744. Plaintiffs specific responses to each argument 
will be discussed below after other preliminary 
matters are decided.



52a

A. Preliminary Matters

Before the Court addresses the merits of these 
defenses, Plaintiff argues that the affidavits relied 
upon by Defendants should be stricken or given little 
weight and moved for leave to file a surreply. It is 
true—and time-consuming for the Court—that 
Defendants did not cite a single deposition in the 
Motion for Summary Judgment. However, Defendants 
are not legally obligated to rely on deposition 
testimony where the only questions asked in those 
depositions were those asked by Plaintiff s counsel.12 A 
deposition serves the important role of allowing a 
party to elicit sworn testimony from an opponent’s 
witness. However, the inverse is that a party’s 
opponent may use an affidavit to elicit sworn 
testimony for its own witness. Provided that the 
affidavit testimony is consistent with the deposition, a 
party is not obligated to rely on deposition testimony 
at all. Plaintiff points to one example where the 
deposition testimony of Thomas Paige and Eric Pilya 
are contradictory to their affidavits and claims that 
“the attorneys for Defendants have chosen to 
painstaking craft lengthy affidavits that contradict 
significant portions of the testimony.” (Doc. 86, Mem. 
Opp. at 32—34). Plaintiffs highlighting of two 
instances of inconsistency over twenty-two affidavits 
is insufficient for the Court to strike all of the 
affidavits. Rather than strike every affidavit, the

12 In moving for summary judgment, a party must support 
its assertions by “citing to particular parts of materials in the 
record, including depositions, documents, electronically stored 
information, affidavits or declarations, . . .  or  other materials . . 
. .” Fed. R. Civ. P. 56(c)(1)(A) (emphasis added).



53a

Court primarily uses the deposition testimony in 
determining the undisputed facts and will give no 
value to affidavit statements which conflict with prior 
sworn testimony. See Penny v. United Parcel Serv., 128 
F.3d 408, 415 (6th Cir. 1997) (“a party cannot create a 
genuine issue of material fact by filing an affidavit, 
after a motion for summary judgment has been made, 
that essentially contradicts his earlier deposition 
testimony.”); but see Aerel, S.R.L. v. PCC Airfoils, 
L.L.C., 448 F.3d 899, 907 (6th Cir. 2006) (finding that 
parties may supplement incomplete deposition 
testimony with affidavits). Of course, to the extent an 
affidavit contradicts deposition testimony on a 
material fact; the Court is already constrained to 
construe such a fact in favor of the Plaintiff.

As for Plaintiffs Motion for Leave to File a 
Surreply, this Court grants such requests “for good 
cause shown.” S.D. Ohio Civ. R. 7.2(a)(2). It is common 
for this Court to grant leave where a reply raises new 
legal arguments. See e.g., Burlington Ins. Co. v. PMI 
Am., Inc., 862 F. Supp. 2d 719, 726 (S.D. Ohio 2012), 
order clarified, No. 2:08-CV-1054, 2012 WL 1665867 
(S.D. Ohio May 10, 2012) (Sargus, C.J.); Thompson v. 
Transam Trucking, Inc., 750 F.Supp.2d 871, 884 (S.D. 
Ohio 2010) (Frost, J.). In this case, Defendants 
submitted a forty-page reply citing deposition 
testimony for the first time. The Court feels that 
Plaintiff has shown good cause and should be afforded 
the opportunity to address this record evidence even 
though the underlying arguments may not have been 
novel when raised in Defendants’ reply. Accordingly, 
the Court GRANTS Plaintiff s Motion for Leave to File 
a Surreply on the docket as Doc. 96-1. The Court will 
now address the merits of this case.



54a

B. Qualified Immunity

It is well-established that “ [p]olice officers are 
immune from civil liability unless, in the course of 
performing their discretionary functions, they violate 
the plaintiff s clearly established constitutional rights.” 
Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) 
(citing Messerschmidt v. Millender, 565 U.S. 535, 546 
(2012)). Qualified immunity protects all but “the 
plainly incompetent or those who knowingly violate 
the law.” Messerschmidt, 565 U.S. at 546 (internal 
quotations omitted). If officers of reasonable 
competence could disagree on the issue, then qualified 
immunity should be recognized. Mullins, 805 F.3d at 
765 (quoting Malley v. Briggs, 475 U.S. 335, 341 
(1986)).

In order to determine if an officer’s actions are 
entitled to qualified immunity, the Court employs a 
two part test: “(1) 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 (2) whether the right violated was clearly 
established such that a reasonable official would 
understand that what he is doing violates that right.” 
Mullins, 805 F.3d at 765 (internal quotations 
omitted). Although the Court views the facts in the 
light most favorable to the Plaintiff, the Court must 
not give “plaintiff the benefit of inferences and 
suppositions that are not . . . supported by the record 
facts.” Chappell u. City of Cleveland, 585 F.3d 901, 
911 (6th Cir. 2009). Courts are free to analyze the 
prongs in either order as both must be met for 
qualified immunity to apply. Id. (citing Pearson v. 
Callahan, 555 U.S. 223, 236 (2009)).



55a

In determining the reasonableness of an officer’s 
actions, the Sixth Circuit uses a ‘“totality of the 
circumstances’” test. Mullins, 805 F.3d at 765 (quoting 
Livermore v. Lubelan, 476 F.3d 397, 404 (6th Cir. 
2007)). The Sixth Circuit has identified three 
non-exhaustive factors to consider: “(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.” Sigley v. City 
of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006) 
(citing Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir. 
2004)). While the Sixth Circuit has described these 
factors as non-exhaustive, it has stated that “[i]n 
excessive force cases, the threat factor is ‘a minimum 
requirement for the use of deadly force,’ meaning 
deadly force ‘may be used only if the officer has 
probable cause to believe that the suspect poses a 
threat of severe physical harm.’” Mullins, 805 F.3d at 
766 (quoting Untalan v. City of Lorain, 430 F.3d 312, 
314 (6th Cir. 2005) (emphasis in original)).

The right to be free from excessive force is clearly 
established as a protection given by the Fourth 
Amendment. Mullins, 805 F.3d at 765. However, while 
the general right to be protected from excessive force 
is established, the Supreme Court “has repeatedly 
told courts . . . not to define clearly established law at 
a high level of generality.” Ashcroft v. al-Kidd, 563 
U.S. 731, 742 (2011). Instead, “[t]he 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) (citing Wilson v. Layne, 526 U.S. 603, 615



56a

(1999)). An officer’s action is ‘“assessed in light of the 
legal rules that were clearly established at the time it 
was taken.’” Pearson, 555 U.S. at 244 (quoting Wilson, 
526 U.S. at 614).

The Sixth Circuit employs a segmented approach 
to excessive force claims where the reasonableness of 
each shooting is analyzed independently of the other 
shootings Greathouse v. Couch, 433 F. App’x 370, 372 
(6th Cir. 2011). The Sixth Circuit has warned that 
‘“ [w]hen an officer faces a situation in which he could 
justifiably shoot, he does not retain the right to shoot 
at any time thereafter with impunity.’” Dickerson v. 
McClellan, 101 F.3d 1151, 1162 n. 9 (6th Cir. 1996) 
(quoting Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 
1993)). Accordingly, the Court must separate each set 
of shots by Frenz and McKee to determine if the 
circumstances at the time of each shooting warranted 
the force used.

1. Sergeant Frenz

Defendants argue that Plaintiff cannot satisfy 
either prong of the qualified immunity test for Frenz’s 
interaction with White because Defendants allege 
Frenz acted reasonably when he fired his weapon at 
White. Plaintiff argues that Frenz’s shooting was not 
reasonable because there is a question of fact about 
whether White posed a significant immediate threat.

Before considering the legal merits of Frenz’s 
immunity, the Court notes that it relies on the facts as 
stated above and to the extent there was any doubt in 
the facts, those were construed in favor of the Plaintiff. 
However, the Court is wary that Plaintiff cannot 
create a question of material fact “by asserting as a



57a

fact that the defendant did not have a requisite 
reasonable state of mind, or that the victim, in 
hindsight, did not in fact present a danger.” 
Murray-Ruhl v. Passinault, 246 F. App’x 338, 350 (6th 
Cir. 2007). The Court is only concerned with the 
objective reasonableness of Frenz’s actions, not his 
subjective state of mind. Smith v. City of Wyoming, 
821 F.3d 697, 709 (6th Cir. 2016), as amended (May 
18, 2016) (“we consider the specific factual
circumstances known to the officer to determine 
whether a reasonable officer would have known that 
her conduct violated that right.”) (citing Matalon v. 
Hynnes, 806 F.3d 627, 633 (1st Cir. 2015)); see also 
Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004) 
(finding a court must consider qualified immunity by 
analyzing the situation the officer confronted).

With that in mind, Defendants argue that the 
three reasonableness factors—(1) severity of the 
crimes; (2) whether White was actively resisting arrest 
or fleeing; and (3) immediacy of the threat—all favor 
Frenz, and note the specific factual circumstances of 
which Frenz knew at the time. The Court will first 
address each of the three factors in turn.

a. Severity of the Crimes

Defendants argue that this factor weighs in favor 
of Frenz because Frenz was aware that White had 
likely committed two first-degree felonies: aggravated 
burglary and felonious assault against a peace officer. 
Plaintiff argues that the only crimes actually 
committed by White were misdemeanor menacing and 
burglary. The Court agrees with Defendants. Although 
Sergeant Pilya of the Critical Incident Response Team 
testified that he was investigating White for only



58a

menacing and burglary, at the time Frenz fired, he 
was aware that White had entered an occupied 
apartment building wielding a knife and that White 
had some sort of confrontation with a police officer 
which resulted in the officer discharging his weapon. 
(Doc. 83-2, Frenz Dep. at 94).

The Court finds that the appropriate method to 
analyze the severity of the crimes by White is to 
consider the information available to the reasonable 
officer at the time of the shooting and which crimes the 
officer had probable cause to believe the suspect 
committed based on the information obtained before 
the shooting. Goodrich v. Everett, 193 F. App’x 551, 
555 (6th Cir. 2006). This factor is evaluated to 
determine if the severity of the crime makes it more or 
less likely that an officer would have to use force to 
apprehend the suspect. Id. (finding that reasonable 
belief that suspect committed aggravated domestic 
assault weighed in favor of the use of force). As this 
factor is ultimately designed to instruct the Court on 
the reasonableness of the officer’s decision at the time 
he made it, a post hoc accounting of the crimes 
actually committed would require the Court to use 
hindsight when every case in the Sixth Circuit and in 
the Supreme Court warns against just such an 
approach. The Court agrees that at the time Frenz 
encountered White, based on the information he had at 
the time, it was reasonable for Frenz to believe that 
White had committed aggravated burglary under Ohio 
Revised Code § 2911.11(B) and aggravated assault 
under Ohio Revised Code § 2901.11(A)(2), twm 
potentially violent crimes. This factor weighs in favor 
of the use of force.



59a

b. Actively Resisting Arrest and/or 
Fleeing

Defendants argue this also weighs in favor of 
Frenz because White had “attacked Alderman with his 
knife, and he had already evaded arrest by flight when 
he ran away from Alderman.” (Doc. 57, Mot. Summ. J. 
at 28).13 Plaintiff argues that “Defendants concede 
that they did not use deadly force because Jason 
White was a fleeing felon or evading capture.” (Doc. 86, 
Mem. Opp. at 38 (citing Doc. 83-3, McKee Dep. at 60)). 
However, Plaintiff correctly also notes that the Sixth 
Circuit applies a segmented approach to analyzing 
excessive force claims. (Doc. 96-1, Surreply at 10 
(quoting Greathouse, 433 F. App’x at 372)). 
Accordingly, McKee’s testimony regarding his beliefs 
is irrelevant in an analysis of Frenz’s use of force. See 
Pollard v. City of Columbus, 780 F.3d 395, 402 (6th 
Cir. 2015), cert, denied, 136 S. Ct. 217 (2015) (“To 
start, ‘[e]ach defendant’s liability must be assessed 
individually based on his own actions.’” (quoting Binay 
v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010))).

The Court agrees with Defendants that this factor 
weighs in favor of the use of force by Frenz. Again, 
Frenz was aware that Alderman had some sort of 
confrontation with White, that White then ran away

13 There is no evidence in the record that White ever 
actually attacked Alderman or any other officer. In fact, Alderman 
even clarifies that at the time of the incident he told another 
officer that White “tried to attack him with a knife.” (Doc. 83-1, 
Alderman Dep. at 90). At best, White’s confrontation with 
Alderman could be characterized as an potential attack and 
neither Frenz nor McKee stated they were aware of an attack, 
just that they were aware of a confrontation.



60a

from Alderman and into a new apartment complex, 
that White continued to refuse to follow Frenz’s 
commands, and that White then, at a minimum was 
attempting to flee out of the enclosure with a knife in 
his hand.

c. Immediacy of the Danger

Plaintiff repeatedly states that “a reasonable fact 
finder could find that Jason White was merely moving 
away from Frenz and Kracht and posed no imminent 
deadly or serious threat to anyone.” (Doc. 86, Mem. 
Opp. at 41). However, there is no evidence that rebuts 
the testimony of both Kracht and Frenz that White 
first moved in Frenz’s direction holding a knife, 
refusing orders to drop the knife and show his hands. 
While it is certainly possibly that White was merely 
attempting to leave the enclosure, it is undisputed that 
his first move—once confronted by Frenz and 
Kracht—was a move toward Frenz. In the Sixth 
Circuit, in the absence of overt statements by White 
to the officers, White’s actual motives for his 
movements are not relevant to this inquiry because 
they are not known to the reasonable officer at the 
time of the incident. See Murray-Ruhl, 246 F. App’x at 
350 (“the subjective intent of the victim—unavailable 
to the officers who must make a split-second 
judgment—is irrelevant to the question whether his 
actions gave rise to a reasonable perception of 
danger.”); see also United States v. Serrata, 425 F.3d 
886, 905 (10th Cir. 2005) (holding the victim’s “state 
of mind is irrelevant, as the force would have been 
excessive regardless of [the victim’s] subjective state of 
mind.”); Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th 
Cir. 1997) (finding that “evidence outside the time



61a

frame of the shooting is irrelevant and prejudicial” and 
excluding the victim’s subjective intent to commit 
suicide by police).

The same analysis applies to the evidence provided 
by Plaintiff regarding White’s mental history and 
previous history that day. Although the Court 
understands the possibility that White may have been 
in some sort of mental distress, his past history is 
irrelevant to the officer’s use of force unless they knew 
of his past history. The Sixth Circuit has discussed 
this specific issue and found that where the officers are 
not affirmatively aware of a suspect’s actual mental 
disability, “the actual mental illness of [a suspect] 
cannot be considered [in an excessive force analysis] 
except to the extent that it seemed that he could have 
been mentally disturbed.” Sheffey v. City of Covington, 
564 F. App’x 783, 795 (6th Cir. 2014). Notably, in 
collecting cases, the Court found that the defining 
characteristic of the cases in which courts found that 
mental health was important were that the officers 
definitively knew of the mental illness, that the 
arrestee was known to be unarmed in most of the 
cases, and that the arrestee had made no attempt to 
resist or attack the officers. Id. at 795-96 (collecting 
cases). The Court finds that the same analysis in 
Sheffey applies here: “the mental illness of [White] 
should be considered . . . from the viewpoint of what 
the officers knew and could perceive at that time of the 
incident.” Id. at 796. The Court is hesitant to require 
a police officer to recognize mental illness or distress, 
to identify its type, and to determine if a person will be 
violent or not on the basis of the person’s speech (or 
lack thereof) or the look of the person’s eyes. There are 
too many different types of mental illness which affect



62a

people in numerous different ways for the Court to 
demand that an officer be able to recognize mental 
distress and determine if a suspect will be non-violent 
on the minor visual and auditory cues present in this 
case.

As to immediacy, the Court agrees with 
Defendants that Lopez v. City of Cleveland is 
inapplicable to Frenz’s shooting. In Lopez, the Sixth 
Circuit analyzed a case where police officers 
approached a machete wielding suspect who was 
speaking to a family member. 625 F. App’x 742, 744 
(6th Cir. 2015). The officers alleged that they saw the 
decedent make a move toward the family member with 
the machete raised over his head in a threatening 
manner. Id. However, there were three non-officer 
witnesses who alleged that the decedent turned away 
from the family member, that he only raised the 
machete to threaten himself, that he never raised it at 
all, and/or that he did not turn in any direction. Id. 
The Sixth Circuit found that there was a question of 
fact whether the decedent had in fact moved towards 
the family member while holding the machete. Id. at 
746. Accordingly, the Court decided that “[tjhose 
disputes go to the heart of whether it was reasonable 
for Defendant Officers to use deadly force.” Id. at 747. 
Notably, the Court did not hold that force would be 
unreasonable if the officers’ version of the facts was 
correct. In this case, there is no question of fact about 
White’s movement immediately before Frenz fired, 
meaning the Lopez decision is unhelpful in 
determining whether Frenz’s shooting was reasonable.

Plaintiff argues Frenz was never in danger 
because White was not within striking distance at the



63a

time Frenz shot, that Frenz had cover from the fence, 
and that there were twenty to thirty officers in the 
area. (Doc. 86, Mem. Opp. at 42). There is nothing in 
the record which rebuts Frenz’s testimony that White 
was six to eight feet from Frenz when Frenz fired. 
(Doc. 83-2, Frenz Dep. at 70, 78). Plaintiff does not cite 
to any case law which requires that a victim be within 
striking distance before an officer fires his weapon. In 
fact, in Chappell, the Sixth Circuit explicitly held that 
a knife wielding suspecting moving toward an officer 
with the knife, “held up while ignoring their 
commands to drop the knife; and that they believed he 
was trying to attack them and, at a distance of less 
than seven feet, posed an imminent threat of serious 
bodily harm.” Chappell, 585 F.3d at 910. The decedent 
in Chappell also had a mattress between him and the 
officers but the Sixth Circuit applied qualified 
immunity anyway, noting that the mattress would 
have posed “little impediment to a knife-wielding 
assailant.” Id. at 911. The Court finds that those 
circumstances are sufficiently similar to the case at 
hand to warrant a finding of reasonableness.

Plaintiffs argument regarding the presence of 
other officers in the area is not relevant to whether 
White was a threat to Frenz when White closed to 
between six and eight feet. Plaintiff does not explain 
how twenty to thirty other officers in the area who 
were not present for the encounter could have stopped 
White from reaching Frenz if White was attacking 
Frenz. The Court finds that Frenz was under no duty 
to wait for assisting officers to arrive before firing his 
weapon because the totality of the circumstances 
support that, at a minimum, reasonable officers could 
have differed about the use of force. Plaintiff also



64a

argues that Kracht did not find it reasonable to fire at 
White and argues that Kracht was “faced with the 
identical circumstances as Frenz.” (Id.). As previously 
noted, Kracht was not faced with the same 
circumstances as Frenz because when White started 
moving from within the enclosure, he moved toward 
Frenz and away from Kracht.14

Based on the similarities in Chappell, even if 
Frenz’s use offeree was unreasonable, when the Court 
is in a legal gray area, “the proper course is to grant 
summary judgment to the officers, even if the court 
would hold the officers’ conduct unconstitutional in 
hindsight.” Rudlaffv. Gillispie, 791 F.3d 638, 644 (6th 
Cir. 2015) (citing al-Kidd, 563 U.S. at 131). 
Accordingly, Frenz is entitled to qualified immunity 
for his use of force against White because Plaintiff has 
failed to establish either prong of the two-part test. 
Summary judgment as to Plaintiffs excessive force 
claims against Frenz is GRANTED.

2. Officer McKee

Officer McKee’s interaction with White occurred in 
three distinct circumstances and the Court agrees with 
Plaintiff that each must be segmented and analyzed 
individually. However, the Court notes that at each 
stage, the Court must analyze each incident with an 
eye on McKee’s knowledge of Alderman’s encounter 
with White, of Frenz’s encounter with White, and 
McKee’s own previous encounter(s) with White.

14 Defendant also correctly notes that “immunity should be
recognized ‘if officers of reasonable competence could disagree on 
the issue,’” Mullins, 805 F.3d at 765 (quoting Malley, 475 U.S. at 
341).



65a

a. McKee’s First Shooting

It is undisputed that McKee first shot White in the 
back while White was running away from McKee, 
Frenz, and Kracht. The Court notes that for McKee’s 
first set of shots, only one of the three factors contains 
analysis that is significantly different than the 
analysis the Court completed for Frenz’s shots. McKee 
was aware of the same facts regarding the potential 
crimes committed by White and there is no doubt that 
White was actively fleeing from Frenz, McKee, and 
Kracht at the time McKee fired his first set of shots. 
The first two elements again weigh in favor of 
reasonableness. Accordingly, only the immediacy of the 
threat factor need be analyzed in depth.

Defendant relies on Tennessee v. Garner for the 
proposition that “where the officer has probable cause 
to believe that the suspect poses a threat of serious 
physical harm, either to the officer or to others, it is 
not constitutionally unreasonable to prevent escape by 
using deadly force.” 471 U.S. 1, 11 (1985). Plaintiff 
again relies on Lopez as controlling in this case, 
stating that similar to Lopez, this case involves a 
suspect who was not an immediate threat to McKee or 
others. (Doc. 86, Mem. Opp. at 43).

In Garner, the Supreme Court held that an officer 
who shot and killed an unarmed teenage fleeing 
suspect solely to prevent escape was an unreasonable 
seizure and violated the teenager’s constitutional 
rights. 471 U.S. at 20-22. The Court held that the 
officer “did not have probable cause to believe that [the 
teenager], whom he correctly believed to be unarmed, 
posed any physical danger to himself or others.” Id. 
The question for this Court is whether McKee had



66a

probable cause to believe that White posed immediate 
physical danger to others as McKee admits White 
posed no threat to McKee at the time of McKee’s first 
shooting. There are major factual differences between 
the officer’s use of force in Garner and McKee’s use of 
force. In Garner, the officer correctly believed that the 
teenager was unarmed and was responding as one of 
two officers. Id. The officer believed that teenager 
would escape if he did not shoot him before he jumped 
a fence. Id. In this case, McKee was one of twenty to 
thirty officers on the scene, White was armed while he 
was fleeing, and had previously had two encounters 
with other officers who had fired their weapons at 
him.15 However, McKee also knew that White was 
wounded as he saw White’s blood splatter on to the 
wall. (Doc. 83-3, McKee Dep. at 78).

This case is not as clear-cut as Garner where the 
officer subjectively knew that the fleeing suspect was 
unarmed, nor is it as obvious as cases in this circuit 
and others where Courts held that deadly force against 
a fleeing suspect was reasonable or those where an 
officer acted with deadly force in the defense of others. 
See Plumhoff v. Rickard, 134 S. Ct. 2012, 2023—24, 
(2014) (finding no constitutional violation where officer 
ended a “lengthy, high-speed pursuit that indisputably 
posed a danger both to the officers involved and to any 
civilians who happened to be nearby.”); Livermore, 476

15 As the Sixth Circuit has pointed out in a similar case, 
“[t]he main points that distinguish Garner . . . are that the 
suspect in Garner was (1) deemed to be unarmed; (2) non-violent; 
(3) non-dangerous; (4) a minor; and (5) the suspect did anything 
but confront the police.” Boyd v. Baeppler, 215 F.3d 594, 600 (6th 
Cir. 2000).



67a

F.3d at 401-06 (finding officer’s use of deadly force was 
reasonable where officer fired at suspect who had 
helped caused a standoff and had a rifle drawn after 
agreeing to surrender); see also Troupe v. Sarasota 
County, 419 F.3d 1160, 1168 (11th Cir. 2005) (finding 
qualified immunity applied to the use of deadly force 
to stop someone who previously endangered police 
even if, in hindsight, the facts show that the police 
could have escaped unharmed); Cole v. Bone, 993 F.2d 
1328, 1333 (8th Cir. 1993) (finding that defendant 
officer had probable cause to believe that a suspect 
fleeing in a truck posed an imminent threat of serious 
physical harm when the officer had seen the truck run 
motorists of the road and threaten the safety of 
others); but see Bouggess v. Mattingly, 482 F.3d 886, 
890 (6th Cir. 2007) (holding that an officer was not 
entitled to qualified immunity where he fired on 
fleeing suspect where officer did not believe the 
suspect was armed and the alleged crimes were 
resisting arrest and dealing crack cocaine).

This case comes down to whether a reasonable 
officer would believe—or that reasonable officers could 
differ—that White was an immediate threat to others 
in the area. The Supreme Court has cautioned that an 
officer’s actions may fall “in the ‘hazy border between 
excessive and acceptable force.’” Brosseau, 543 U.S. at 
200-01 (quoting Saucier, 533 U.S. at 206). This is such 
a case. In Plumhoff, the Supreme Court found the use 
of force reasonable during a high speed chase where, 
“at the moment when the shots were fired, all that a 
reasonable police officer could have concluded was that 
[the suspect] was intent on resuming his flight and 
that, if he was allowed to do so, he would once again 
pose a deadly threat for others on the road.” Plumhoff,



68a

134 S. Ct. at 2022. Thus, the Court finds that even 
though there were no other officers or civilians in the 
immediate vicinity of White, McKee’s first use of force 
was reasonable because reasonable officers could differ 
on whether or not White posed an immediate danger 
to those in the area. Mullins, 805 F.3d at 765. Further, 
this case falls into the sort of gray area that means it 
would not be “clear to a reasonable officer that his 
conduct was unlawful in the situation he confronted,” 
and thus that the right was not clearly established. 
Saucier, 533 U.S. at 202. McKee is entitled to 
qualified immunity for his first set of shots. Summary 
judgment as to that claim is GRANTED.

b. McKee’s Second Shooting

At the time of the second shooting by McKee, 
White had stopped running and turned to face McKee 
as he came through a breezeway. Defendants argue 
that White’s presence was an immediate threat 
because he was refusing to drop the knife, was holding 
it with the blade up, and was glaring at McKee. 
Defendants argue that White could have closed the 10 
to 15 feet in “fractions of a second” and that “McKee 
could not fully rely on his firearm to stop a knife 
attack at such close range.” (Doc. 57, Mot. Summ. J. at 
56—57). They further argue that McKee had only a few 
seconds to make the determination about the proper 
amount of force and that the combination of all these 
factors justify his use of force. (Id.). Plaintiff argues 
that Lopez considered a similar situation and thus 
forecloses any of McKee’s arguments.

Again, only a cursory review of the first two 
elements is necessary at this juncture. The first 
element regarding the alleged crimes still weighs in



69a

favor of McKee’s use of force. The second element in 
this situation does not. White had stopped running 
and turned to face McKee while standing still but still 
refused to obey any commands. The second factor 
favors neither party.

On reasonableness, the Court again looks to Lopez 
which held that there was a question of fact about 
whether or not the suspect had turned toward a 
bystander before the police shot him. Although the 
Court did not explicitly hold that the officers’ actions 
were unreasonable, the Court essentially held that had 
the machete-wielding suspect not moved toward the 
bystander, the shots would have been unreasonable. 
It is undisputed that in this case, White did not move 
towards McKee before McKee shot him.

In Mace v. City of Palestine, the Fifth Circuit held 
that an officer did not act unreasonably when he shot 
a suspect holding a sword. 333 F.3d 621, 625 (5th Cir. 
2003). The suspect was brandishing the sword and 
making punching motions with the sword while eight 
to ten feet from the officers. Id. at 623. While still eight 
to ten feet away, the suspect turned toward the officers 
and raised the sword. Id. At that time, an officer shot 
him in his right arm. Id. The suspect then attempted 
to flee, fought off an attack dog, was pepper sprayed, 
and eventually passed away from his wounds. Id. The 
Fifth Circuit noted that the suspect refused 
commands, was acting agitated and continued to make 
punching motions with the sword. Id. at 624. The court 
also noted that the relatively tight quarters of the 
scene reduced the officers’ ability to retreat or keep the 
suspect from harming others in the area. Id.



70a

This case shares similarities with both Lopez and 
Mace. Similar to Mace, White was holding the knife in 
an aggressive manner and White was not obeying any 
of McKee’s commands to drop the knife. Like Lopez 
and Mace, there is no dispute that White never moved 
toward McKee at the time of the second shooting. But 
material differences also exist. Unlike Mace, McKee 
was not in a confined space, was fifteen feet away, and 
he did have room to retreat. Unlike Lopez, McKee was 
aware that White had already had two confrontations 
with police earlier in the night. The Court notes that 
the time between McKee’s second set of shots and his 
arrival on the scene was very short and that he did not 
have a great deal of time to make a decision. However, 
the fact that the situation unfolds quickly does not by 
itself legitimize the use of deadly force. Mullins, 805 
F.3d at 768 (citing Kirby v. Duva, 530 F.3d 475, 483 
(6th Cir. 2008)). Yet, the Court is again reminded that 
“officers may use deadly force even if in hindsight the 
facts show that the persons threatened could have 
escaped unharmed.” Untalan, 430 F.3d at 315—16 
(finding that even if the suspect had dropped the knife 
he was holding, officers had to make a split second 
decision if suspect was a threat).

The Court finds that based on the evidence and the 
Court’s obligation not to impose hindsight on 
split-second decisions, a reasonable officer could 
reasonably have believed that White was an 
immediate threat even though he was fifteen feet away 
and standing still. Although other officers were in the 
area, there is no evidence that McKee was aware 
where any of the other officers were located other than 
Kracht and Frenz, who he knew were behind him but 
at an unknown distance. Accordingly, their general



71a

presence in the area does not show that any were close 
enough to truly provide support should White have 
decided to charge McKee. Further, although it is now 
clear that McKee could have retreated because he was 
in an open space, there is no evidence that he was 
aware of his surroundings at that time. It was dark, in 
an apartment complex and a suspect who had two 
previous confrontations with officers had stopped 
running to face him while holding a knife. This is an 
extremely close case but the Court finds that although 
McKee’s second shooting may not have ultimately been 
necessary, it was not an unreasonable use of force. 
McKee is entitled to qualified immunity for this round 
of shots and summary judgment as to that claim is 
GRANTED.

c. McKee’s Third Shooting

Regarding the third set of shots fired by 
McKee—while White was either on the ground or 
attempting to stand back up—Defendants argue that 
a reasonable officer would have recognized that 
White was still not subdued and therefore, the 
threat was not yet over. Defendants rely on a 
footnote from San Francisco v. Sheehan for the 
proposition that the position of a suspect on the 
ground is not material if the suspect is not subdued. 
135 S. Ct. 1765, 1771 n. 2 (2015).

In Boyd v. Baeppler, the Sixth Circuit analyzed a 
case where an officer shot a suspect who was already 
on the ground due to shots from another officer. The 
Court found that the officer was entitled to qualified 
immunity where he shot the decedent seven times 
even after the decedent had been already brought 
down by another officer. 215 F.3d 594, 602-04 (6th Cir.



72a

2000). However, the facts in that case are distinct from 
this case. In Boyd, the suspect, while down on the 
ground, “lifted his torso and turned to point his [gun]” 
at another officer before he was shot while on the 
ground. Id. Although McKee stated that White 
continued to stare at him while attempting to get up, 
there is no comparison between a suspect pointing a 
gun at an officer and a suspect holding a knife while 
staring at an officer.

In Sheehan, the Supreme Court analyzed a case 
where the plaintiff was in a mental health facility 
when she threatened to kill an employee. Sheehan, 135 
S. Ct. at 1769—70. The police came and entered her 
room where the plaintiff then threatened them with a 
kitchen knife. Id. at 1770. The officers retreated and 
called for backup then re-entered the room because 
they feared she would gather more weapons or flee out 
of a window. Id. The officers re-entered the room and 
the plaintiff admitted she was intending to resist 
arrest using the knife. Id. at 1771. One officer pepper 
sprayed the plaintiff but she did not drop her knife. Id. 
As she closed on the second officer, he shot her twice 
and she may have fallen to the ground. Id. While the 
plaintiff was on the ground, she continued to threaten 
the second officer with the knife while he was cornered 
in the small room. Id. The first officer then shot her 
again. Id. The Court found the dispute about whether 
the plaintiff was on the ground was immaterial 
because “she was certainly not subdued.” Id. at 1771 n. 
2 (quoting Sheehan v. City & Cty. of San Francisco, 
743 F.3d 1211, 1230 (9th Cir. 2014)).

The Court acknowledges that the footnote in 
Sheehan states that the position of a suspect on the



73a

ground does not make the use of force unreasonable 
per se, but this case shares few important similarities. 
Id. In this case, McKee had witnessed Frenz shoot 
White and had fired his own gun at White two times 
meaning he knew White was injured. The Court 
disagrees that a reasonable officer would have felt 
immediately threatened by a knife wielding suspect on 
the ground ten to fifteen feet away suffering from at 
least one known gunshot. Regardless of whether 
White was prone or attempting to push himself up, 
McKee was in an open field facing a man on the 
ground with a knife and rather than retreat to a safe 
position, take note of his surroundings, or call for 
backup, McKee shot White again while White was on 
the ground and fatally wounded him. Accordingly, 
Plaintiff has presented sufficient evidence, which if 
believed, could support a finding that McKee’s third 
set of shots were unreasonable.

Further, as Plaintiff correctly argues, Lopez 
confirmed that on November 17, 2013, “the law was 
clearly established that officers could not use deadly 
force unless they had probable cause to believe that an 
individual posed a serious risk of harm to officers or 
others.” Lopez, 625 F. App’x at 747 n. 2 (citing 
Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 
2006)). Accordingly, McKee is not entitled to qualified 
immunity for his third set of shots fired at White and 
summary judgment as to that claim is DENIED.

3. Deliberate Indifference

Defendants next argue that McKee and Frenz are 
entitled to qualified immunity on Plaintiffs deliberate 
indifference claims. Defendants argue that this claim 
arises under the Fourteenth Amendment Due Process



74a

Clause which only requires the summoning of medical 
help. (Doc. 57, Mot. Summ. J. at 34-35). Defendants 
further argue that White passed away from the lethal 
gunshot within a minute of being shot for the final 
time and that no amount of medical care by the officers 
would have saved him. (Id. at 35). Plaintiff argues that 
the officers knew of and disregarded a substantial risk 
of harm to White and that causation is not an element 
for a claim of deliberate indifference.

The Constitution forbids the “deliberate 
indifference to serious medical needs of prisoners” 
under the Eighth Amendment. Estelle v. Gamble, 429 
U.S. 97, 104 (1976). Although not explicit in the 
Eighth Amendment, this restriction is evident when 
deliberate indifference is considered the ‘“unnecessary 
and wanton infliction of pain.”’ Id. (quoting Gregg u. 
Georgia, 428 U.S. 153, 173 (1976)). Accordingly, 
“intentionally denying or delaying access to medical 
care” violates the constitutional rights of a prisoner. 
Id. at 104-05. Pretrial detainees are also protected 
from deliberate indifference via the Fourteenth 
Amendment. Watkins v. City of Battle Creek, 273 F.3d 
682, 685—86 (6th Cir. 2001) (citing City of Revere v. 
Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).

The Court evaluates a deliberate indifference 
claim by reviewing both subjective and objective 
components because “[djeliberate indifference requires 
that the defendants knew of and disregarded a 
substantial risk of serious harm to [the plaintiffs] 
health and safety.” Watkins, 273 F.3d at 686 (citing 
Farmer v. Brennan, 511 U.S. 825, 835-37 (1994)). “The 
objective component is that the plaintiff must ‘show 
the existence of a sufficiently serious medical need.’”



75a

Linden v. Piotrowski, 619 F. App’x 495, 500 (6th Cir. 
2015) (quoting Phillips v. Roane Cty., 534 F.3d 531, 
539 (6th Cir. 2008) (internal quotations omitted)). The 
subjective component consists of three parts which 
Plaintiff may show by circumstantial evidence: (1) that 
the officers subjectively perceived facts from which to 
infer substantial risk to the detainee; (2) that the 
officers actually drew the inference; and (3) that the 
officers then disregarded that substantial risk. 
Phillips, 534 F.3d at 540 (quoting Comstock u. 
McCrary, 273 F.3d 693, 703 (6th Cir. 2001)).

Plaintiff relies on both Scozzari v. Miedzianowski, 
454 F. App’x 455 (6th Cir. 2012) and Eibel v. Melton, 
904 F. Supp. 2d 785 (M.D. Tenn. 2012) for the 
proposition that an officer does not discharge his duty 
to render medical aid solely by calling for aid for a 
victim of the police use of force. Defendants rely on 
Rich v. City of May field Heights, 955 F.2d 1092, 1098 
(6th Cir. 1992), arguing that a police officer discharges 
his duty to render medical aid by promptly calling for 
medical help.

In Rich, a prisoner hung himself in his prison cell. 
955 F.2d at 1094. An officer came into the cell, saw 
the prisoner hanging and called for medical assistance. 
Id. Paramedics arrived in the cell one minute after the 
call for medical help was logged but the decedent was 
still hanging. Id. The paramedics got the prisoner on 
the ground but he had already suffered permanent 
mental and physical damage. Id. The Court found that 
the officer was entitled to qualified immunity because 
the police officers did not intentionally deny or delay 
the prisoner’s access to medical care. Id. at 1098. 
Further, the Court noted that “[tjhe record in this case



76a

clearly supports the conclusion that upon discovering 
[the prisoner] hanging in his cell, the defendant police 
officers reacted immediately by calling for the 
paramedics, and that the paramedics arrived within 
minutes.” Id.

Before Scozzari, the Sixth Circuit had another 
opportunity to consider a deliberate indifference claim 
where the officers in question struck a suspect with a 
baton in his back, legs, and arms, pinned him down 
with his arms under his chest, placed him in a head 
wrap, and used a shoulder pressure point “compliance 
technique” to subdue him. Estate of Owensby v. City 
of Cincinnati, 414 F.3d 596, 600 (6th Cir. 2005). After 
Owensby was handcuffed and prone, one of the officers 
kneed Owensby in the back, lifted his head up, and 
another officer sprayed mace into Owensby’s eyes and 
nose from six inches away. Id. At least one of the 
officers continued to repeatedly strike Owensby in the 
back. Id. As they placed Owensby in a cruiser, one of 
the officers continued to beat Owensby. Id. The officers 
locked the doors and although one officer questioned 
whether or not Owensby could breathe, they made no 
attempt to render aid and instead greeted each other, 
secured dropped items, checked their uniforms, and 
talked about how Owensby appeared to be hurting a 
great deal. Id. at 600—01. Six minutes later, a new 
officer arrived and checked on Owensby, removed him 
from the car, and called EMTs which arrived four 
minutes later. Id. at 601. The Sixth Circuit denied the 
officers qualified immunity, finding that there was 
evidence of their indifference in the six minutes where 
they did anything but help Owensby even though they 
had viewed him in significant distress. Id. at 603. 
Further, the Court found that the right to care was



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clearly established and stated that Owensby’s prior 
flight and confrontation with the police was irrelevant 
to the analysis. Id. at 604.

In Scozzari, the Sixth Circuit considered a case 
where an officer shot the plaintiffs decedent then 
called for medical care. 454 F. App’x at 465. However, 
when the ambulance arrived, the officers had not 
secured the scene and were preventing the medics 
from accessing the decedent. Id. The officers then 
asked the medics to work around the evidence on the 
ground once they had arrived. Id. The Sixth Circuit 
held that “[reasonable officers would have known, 
based on this Circuit’s precedent, that the obligation to 
provide adequate medical care to an injured detainee 
is not discharged merely by promptly calling for 
assistance, but extends to ensuring that medical 
responders are able to access the victim without 
unreasonable delay.” Id. at 466. The Court noted 
that “Owensby involved not only the failure to summon 
medical care, but also the failure to provide medical 
care . . . ” but the Court did not discuss Rich. Id. at 
465-66. The Sixth Circuit also noted that there was a 
question of fact whether the officers were arranging 
weapons around the decedent and asking witnesses to 
view the decedent’s body near the weapons rather than 
securing the scene. Id.

Defendant argues that reliance on Scozzari is 
misplaced because the officers in that case did not 
secure the scene and thus did not discharge their 
duties to the decedent. Defendant does not discuss 
Owensby or Scozzari’s implicit finding that there is a 
duty to both summon and provide medical care. The 
Sixth Circuit recently considered a case which is not



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entirely analogous to this case but the Sixth Circuit’s 
analysis of Owensby is still helpful. Linden, 619 F. 
App’x at 502. In Linden, officer Piotrowski and officer 
Zayto arrived on a scene where multiple persons were 
suffering from gunshot wounds. Id. at 496-97. The 
officers allegedly failed to direct paramedics to Ronald 
Black, one of the gunshot wound victims who later 
passed away. Id. The Court noted the defining 
characteristics of Owensby that were not present in 
Linden: (1) “Black, unlike Owensby, had no visible 
manifestations of his injury;” and (2) “[ujnlike the 
officers in Owensby, Piotrowski and Zayto did not 
cause the decedent’s injuries and did not have the 
same reason to know about their extent.” Id. at 503. 
Both of those factors in this case are similar to 
Owensby. McKee saw his final shot enter White’s chest 
and saw blood coming out of the wound and Frenz saw 
White smear blood on the wall after his volley of shots. 
Further, both officers were responsible for White’s 
wounds. Last, the delay between the final shots in this 
case and the arrival of paramedics—around ten to 
fifteen minutes—is at least as long as or longer than 
each of the cases cited above and both officers still 
chose not to provide medical care.

Although Defendants argue that Frenz and McKee 
did not have the subjective state of mind to determine 
that White was in serious need of medical care, 
Defendants cite no evidence in the depositions or 
affidavits of McKee and Frenz that they knew their 
medical care would be futile. A medical examiner’s 
post hoc opinion that medical care which was not 
actually rendered would not have been effective is not 
relevant in evaluating the state of mind of Frenz and 
McKee when both admitted they knew White was



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injured and that both officers knew they shot him. 
(Doc. 83-2, Frenz Dep. at 113; Doc. 83-3, McKee Dep. 
at 86—87). Despite Defendants assertions, the futility 
of their help has no relevance to Frenz and McKee’s 
subjective belief at the time, but rather improperly 
asks the Court to graft a causation element into the 
analysis by assuming that the medical examiner’s 
futility determination constitutes the officers’ 
subjective state of mind at the time they chose not to 
provide medical care. There is sufficient 
circumstantial evidence to show that both officers 
perceived facts allowing them to infer a substantial 
risk to White, that both drew the inference that the 
risk could cause harm, and then that both disregarded 
the risk.

As to the right being established, Owensby held 
that “in general, the Fourteenth Amendment right of 
pretrial detainees to adequate medical care is, and has 
long been, clearly established.” 414 F.3d at 604. The 
facts in this case are sufficiently similar to Owensby 
for the Court to hold that a reasonable officer would 
have known they could not ignore White’s urgent 
medical needs as he was lying in the grass solely 
because an officer had called for an ambulance which 
did not arrive for at least 10 minutes. Accordingly, the 
officers are not entitled to qualified immunity for 
their decision not to provide medical care and 
summary judgment as to the deliberate indifference 
claim is DENIED.

C. M on ell Liability
Next, Columbus moves for summary judgment on 

Plaintiffs municipal liability claims under Monell v. 
New York City Dep’t of Soc. Servs., 436 U.S. 658



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(1978). Plaintiff argues that Columbus is liable for 
both its failure to train/supervise the officers and for 
having customs or policies which caused the alleged 
constitutional violations. Columbus argues that 
Plaintiff has not identified any policy which caused 
the violations and that Monell liability should not 
attach to any claim based on acts the Court found 
constitutional.

The Monell decision made clear that local 
government units could be held liable for § 1983 
claims, but that Ҥ 1983 did not support respondeat 
superior liability, reasoning that ‘Congress did not 
intend municipalities [and other local government 
units] to be held liable unless action pursuant to 
official municipal policy of some nature caused a 
constitutional tort.’” Moldowan v. City of Warren, 578 
F.3d 351, 394 (6th Cir. 2009) (quoting Monell, 436 U.S. 
at 691). A plaintiff can identify one of four methods 
“[t]o show the existence of a municipal policy or custom 
leading to the alleged violation:” “(1) the municipality’s 
legislative enactments or official policies; (2) actions 
taken by officials with final decision-making authority; 
(3) a policy of inadequate training or supervision; or (4) 
a custom of tolerance of acquiescence of federal 
violations.” Baynes v. Cleland, 799 F.3d 600, 621 (6th 
Cir. 2015), cert, denied, 136 S. Ct. 1381 (2016) (citing 
Thomas u. City of Chattanooga, 398 F.3d 426, 429 (6th 
Cir. 2005)).

“A city’s custom or policy can be unconstitutional 
in two ways: 1) facially unconstitutional as written or 
articulated, or 2) facially constitutional but 
consistently implemented to result in constitutional 
violations with explicit or implicit ratification by city



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policymakers.” Gregory v. City of Louisville, 444 F.3d 
725, 752 (6th Cir. 2006) (citing Monell, 436 U.S. at 
692—94). “In other words, the risk of a constitutional 
violation arising as a result of the inadequacies in the 
municipal policy must be ‘plainly obvious.”’ Id. (citing 
Bd. of County Comm’rs v. Brown, 520 U.S. 397412 
(1997)).

Plaintiff alleges that McKee’s shots at White while 
White was on the ground were due to the Columbus’ 
policy, custom, practice, and/or training directive to 
shoot suspects who are on the ground. Plaintiff points 
to a passage from Thomas Paige’s deposition16 in which 
he stated that an officer can use lethal force on a 
person on the ground who has a knife as long as the 
officer perceives the person as a threat, regardless of 
the distance between the officer and the person on the 
ground. (Doc. 84-7, Paige Dep. at 103). Paige stated 
that in the situation where an officer is fifteen feet 
away from a person with a knife who has been shot, 
the City of Columbus policy allows the officer to shoot 
that person as the person attempts to stand up as long 
as the officer perceives the person is a threat. (Doc. 
84-7, Paige Dep. at 103-05). The risk of this policy is 
that an officer is empowered to shoot a suspect on the 
ground when the suspect is well out of striking 
distance so long as the officer feels threatened. An 
injured suspect on the ground with an edged weapon 
is not an immediate threat to an officer who is fifteen 
to twenty feet away, even if the suspect is attempting 
to get back up in most if not all circumstances. The

16 Paige is the Defendants’ expert in police procedure and 
was involved in McKee’s training on the use of force. (Doc. 84-7, 
Paige Dep. at 39-40).



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clear implication of Paige’s testimony is that it invites 
an officer to make an unconstitutional decision to use 
lethal force on a person on the ground because the 
person is a threat—even if not an immediate one. 
Defendants cite Sheehan to argue that this policy is 
constitutional because the Supreme Court found the 
use of force in Sheehan constitutional, but Sheehan 
involved a suspect who was still within close proximity 
to the officer, while the suspect was still holding a 
knife and threatening the cornered officer. Sheehan, 
135 S. Ct. at 1771 n. 2. Accordingly, the Court finds 
that summary judgment on Plaintiffs Monell claim 
regarding excessive force is DENIED.

To the extent Plaintiff seeks Monell liability 
against Columbus for the officers’ failure to provide 
medical care, summary judgment as to that claim is 
GRANTED as Plaintiff has identified no policy, 
custom, training directive, or post-hoc ratification of 
the officer’s decision not to provide medical care. 
Additionally, summary judgment as to Plaintiffs 
claims against Columbus for Frenz’s shots and 
McKee’s first two volleys is GRANTED because the 
Court found no underlying constitutional violations.
D. State Law Immunity for Frenz and McKee

Frenz and McKee next move to dismiss Plaintiffs 
state-law claims, arguing that Frenz and McKee are 
immune under Ohio law. Frenz and McKee argue 
that Ohio Revised Code § 2744.03(A)(6) provides 
presumptive immunity and that none of the three 
exceptions to that immunity apply. Plaintiff argues 
that their actions fall under Ohio Revised Code 
§ 2744.03(A)(6)(b), which removes an officer’s



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immunity if he acted “with malicious purpose, in bad 
faith, or in a wanton or reckless manner.”

The Sixth Circuit has held that when a plaintiff 
fails “to demonstrate that defendants’ conduct was 
objectively unreasonable, it follows that she has also 
failed to demonstrate that defendants acted with 
malicious purpose, in bad faith, or in a wanton or 
reckless manner,’ such as is required to avoid statutory 
immunity under Ohio law.” Chappell, 585 F.3d at 916 
(citing Ohio Rev. Code § 2744.03(A)(6)(b); Ewolski v. 
City of Brunswick, 287 F.3d 492, 517 (6th Cir. 2002)). 
Accordingly, the Court finds that Frenz is entitled to 
immunity for his use of force, that McKee is entitled to 
immunity for his first and second uses of force, and 
therefore GRANTS summary judgment as to the 
state-law claims arising from those incidents.

However, because the Court found that qualified 
immunity did not apply to McKee’s third use of force or 
McKee and Frenz’s decision not to provide medical 
care, immunity also does not attach to the analogous 
state law claims. Defendants agreed that Plaintiffs 
state-law claims rise and fall with the Court’s qualified 
immunity analysis. (Doc. 95, Reply at 37). Accordingly, 
summary judgment as to Plaintiffs state-law claims 
against Frenz and McKee which are based on the 
failure to provide medical care and against McKee for 
the third use of force is DENIED.



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E. State Law Immunity for Columbus

Columbus argues that it is immune from Plaintiffs 
state-law claims under Ohio Revised Code § 2744 
which grants political subdivisions presumptive 
immunity from tort claims involving injury or death 
caused by the political subdivision or one of its 
employees in connection with a government or 
proprietary function. Columbus argues that none of 
the exceptions to immunity apply. Plaintiff did not 
respond to this argument.

Defendant is correct that policing is a 
governmental function, that Columbus is a political 
subdivision, and that this claim involves injury or 
death such that presumptive immunity applies. See 
Ohio Rev. Code § 2744.02(A)(1); Ohio Rev. Code § 
2744.01(C)(2)(a) (“A ‘governmental function’ includes 
. . . the provision . . .  of police . . . services or 
protection”). Ohio Revised Code § 2744.02(B) sets 
forth the exceptions to that immunity and Columbus 
is again correct that none of the following apply: (1) 
injury caused by the negligent operation of a motor 
vehicle; (2) injury caused by negligent performance 
with respect to proprietary (not governmental) 
functions; (3) injury caused by failure to keep roads in 
good repair; (4) injury caused by negligence on grounds 
of building used for governmental function, i.e. 
courthouses, jails, and office buildings; and (5) injury 
where liability is specifically imposed on the 
subdivision by another Ohio Revised Code section. 
Ohio Rev. Code §§ 2744(B)(1)—(5). Accordingly, 
Columbus is immune from Plaintiffs state-law claims 
and summary judgment as to those claims is 
GRANTED.



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IV. CONCLUSION

Based on the foregoing, Defendants’ Motion for 
Summary Judgment is GRANTED in part and 
DENIED in part. Plaintiffs Motion for Leave to File 
a Surreply is GRANTED.

The claims remaining in this case are an excessive 
force claim against McKee, the deliberate indifference 
claims against McKee and Frenz, the Monell claim 
against Columbus for McKee’s use of force, the 
state-law claims against McKee arising out of his third 
use of force, and the state-law claims against Frenz 
and McKee arising from their failure to provide 
medical care. In light of this decision, the parties shall 
contact Magistrate Judge Deavers within 14 days to 
arrange for participation in an upcoming Settlement 
Week. The Clerk shall REMOVE Documents 57 and 
96 from the Court’s pending motions list.

IT IS SO ORDERED.

/s/ Geroge C. Smith 
GEORGE C. SMITH, JUDGE 
UNITED STATES DISTRICT COURT



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APPENDIX C

United States Court of Appeals 
for the Sixth Circuit

Nos. 17-3384/3475

PATTI STEVENS-RUCKER, Administrator of The 
Estate of Jason White, Deceased,

Plaintiff, Appellee/Cross-Appellant,
v.

CITY OF COLUMBUS, OH; SERGEANT 
JOHN FRENZ, (#5141); OFFICER 

DUSTIN MCKEE, (#2611),
Defendant-Appellants/Cross-Appellees.

FILED
Aug 24, 2018

ORDER

BEFORE: NORRIS, BATCHELDER, and
STRANCH, Circuit Judges.

The court received a petition for rehearing en banc. 
The original panel has reviewed the petition for 
rehearing and concludes that the issues raised in the 
petition were fully considered upon the original 
submission and decision of the cases. The petition 
then was circulated to the full court. No judge has



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requested a vote on the suggestion for rehearing en 
banc.

Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk