Elizabeth Goodwin v. Richland County, Ohio

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0588n.06
Case No. 19-3243
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 16, 2020
ELIZABETH GOODWIN, As Administrator )
DEBORAH S. HUNT, Clerk
of the Estate of Brian Garber, )
)
Plaintiff-Appellant,
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v.
) THE NORTHERN DISTRICT OF
) OHIO
RICHLAND COUNTY, OHIO, et al.,
)
Defendants, )
)
RAYMOND FRAZIER, )
Defendant-Appellee. )
BEFORE: BOGGS, DONALD, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Juries are in the business of deciding material issues of fact.
This case was no exception: A jury determined that the defendant police officer acted reasonably
in a tense and dangerous situation. Now, the plaintiff wants another shot to convince another jury
otherwise. Finding no error with the trial, we affirm.
I.
Brian Garber and his wife, Sara Knowlton, lived with their two children across the street
and down the hill from Garber’s parents. One evening, Garber returned home from work to find
his wife had locked him out of the house. He kicked open the back door, entered the house, and
Case No. 19-3243, Goodwin v. Richland Cnty.
pushed Knowlton down. When Garber’s mother intervened, he pushed her too. The women then
called 911 for help, and Garber left the house.
When the police arrived, Garber was nowhere to be found. Both Garber’s mother and
Knowlton were worried about Garber’s mental state and told the police about his history of mental
illness.
Later that evening, Knowlton called the police again. This time she informed them that
Garber had sent her text messages stating that he had a gun and was going to kill her. So, the
police returned.
At about the same time, Garber’s parents discovered Garber in his childhood bedroom.
They tried to speak with him. During their encounter, Garber hid one hand under his shirt and
suggested that he was holding a gun. His mother left for Knowlton’s home and arrived to find
officers responding to Knowlton’s second 911 call.
The officers now believed that Garber was armed, and they headed to the parents’ home.
Sergeant James Nicholson, Deputy Andrew Knee, and Deputy Raymond Frazier entered the
Garber home, and Garber’s father directed them upstairs to Garber’s bedroom.
When the officers approached Garber’s bedroom, they found Garber sitting on his bed with
his back against the headboard. He reported that he had a gun. Nicholson and Knee positioned
themselves along both sides of the doorframe—a strategic position that provided them some cover.
Frazier then entered the room.
The officers saw Garber’s left hand down by his side and his right hand hidden beneath his
shirt. A “distinct rectangular shape” protruded. R. 166, Pg. ID 2577. Frazier and Nicholson saw
the object moving back and forth under Garber’s shirt, pointing at one police officer and then the
other. But Officer Knee stated that the object was stationary.
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At this point, both Nicholson and Frazier told Garber to drop his weapon and show his
hands; Garber refused. Nicholson tried to de-escalate the situation—even offering to get Garber
help. Still, Garber refused to show his hands or drop his “weapon.”
Frazier, whose gun had been out from the moment that Garber announced he was armed,
now pointed it directly at Garber. Both Nicholson and Knee had their guns drawn. Garber had
not threatened to shoot the officers, and none had yet resorted to using his weapon. That changed
when they heard a loud “pop”—like a gunshot—that emanated from inside the bedroom. The
officers disagree about whether Garber moved when the pop sounded. All three, though, had the
same reaction: They fired at Garber, killing him.
The horrible reality was that Garber was unarmed. It is unclear whether the “gun” under
his shirt was a remote control or just his hand. The source of the pop, too, remains a mystery.
The administrator of Garber’s estate (the plaintiff) sued multiple officers as well as various
government entities, alleging that the use of deadly force violated the Fourth Amendment. See 42
U.S.C. § 1983. Only the claims against Knee, Nicholson, and Frazier survived summary judgment.
The officers appealed the district court’s denial of qualified immunity, but we affirmed. Knowlton
v. Richland Cnty., 726 F. App’x 324, 332 (6th Cir. 2018).
On remand, the plaintiff dismissed the claims against Knee and Nicholson, but proceeded
to trial against Frazier on the excessive-force claim. See 42 U.S.C. § 1983. The district court
prohibited both sides from presenting their proffered expert testimony. The jury found for Frazier.
The plaintiff then asked the court to alter or amend the judgment or to grant her a new trial.
She offered two reasons: (1) The verdict was unreasonable and against the manifest weight of the
evidence, and (2) the district court improperly excluded her expert evidence.* Fed. R. Civ. P.
*
The plaintiff additionally urged that the judgment constituted “manifest injustice.” See GenCorp, Inc. v. Am. Int’l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (noting that a motion to alter or amend the judgment may be granted
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59(a), (e). The district court disagreed, finding that the jury’s verdict was reasonable given the
evidence presented, and that the court had not erred in excluding both parties’ experts. The
plaintiff now appeals, asking for a new trial.
II.
On appeal, the plaintiff argues what she did below: (1) The verdict was against the manifest
weight of the evidence, and (2) the exclusion of her expert testimony about police practices
rendered the trial unfair. We review both the denial of her post-trial motion and the exclusion of
expert testimony for an abuse of discretion. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528
(6th Cir. 2008) (exclusion of evidence); GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804,
832 (6th Cir. 1999) (alteration or amendment of the judgment); Holmes v. City of Massillon, 78
F.3d 1041, 1045 (6th Cir. 1996) (new trial).
A.
First, the plaintiff argues that the jury’s verdict was against the manifest weight of the
evidence. Generally, we “uphold the verdict if it was one which the jury reasonably could have
reached; we cannot set it aside simply because we think another result is more justified.” Armisted
v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir. 2012) (citing Denhof v. City of
Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007)). We only reverse if we reach a “definite and
firm conviction that the trial court committed a clear error of judgment.” Id. (quoting Mich. First
Credit Union v. Cumis Ins. Soc’y, Inc., 641 F.3d 240, 245–46 (6th Cir. 2011)).
To prove that Frazier violated Garber’s right to be free from an unreasonable seizure, she
had to show that the use of deadly force was objectively unreasonable under the totality of the
“to prevent manifest injustice”). But both in the district court and on appeal she has characterized this as substantially
the same as her argument that the verdict was against the manifest weight of the evidence, so we need not address it
separately.
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circumstances. Graham v. Connor, 490 U.S. 386, 396–97 (1989); see U.S. Const. amend. IV.
Deadly force is reasonable when an officer “has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury” to the officer or someone else. Tennessee v.
Garner, 471 U.S. 1, 3 (1985). The jury must assess the existence or absence of probable cause
based on the facts known to the officer at the moment he used force. Thomas v. City of Columbus,
854 F.3d 361, 365 (6th Cir. 2017). This reasonableness analysis includes a “built-in measure of
deference to the officer’s on-the-spot judgment about the level of force necessary in light of the
circumstances of the particular case.” Burchett v Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citing
Graham, 490 U.S. at 396).
The plaintiff argues that the use of deadly force was objectively unreasonable because
Frazier must have created the pop himself. She points out that the Ohio Bureau of Criminal
Investigation was unable to “definitive[ly]” establish any source for the pop other than a gun.
R. 167, Pg. ID 2707–08. And Garber was unarmed. So, she says, the only reasonable inference
is that Frazier (the one officer inside the bedroom) fired a shot at Garber—creating the pop sound—
and all the later shots followed from there. And because Frazier testified that he only felt the need
to shoot after hearing the pop, this “pop shot” constituted the unlawful use of deadly force.
But reasonable jurors could have seen it differently. They could have credited Frazier’s
testimony when he said he didn’t fire the “pop shot.” See McDonald v. Petree, 409 F.3d 724, 731
(6th Cir. 2005) (“[W]itness credibility is solely within the jury’s province, and this court may not
remake credibility determinations.” (cleaned up)). Or maybe they believed that one of the other
officers created it. Or maybe they just weren’t sure. In the end, the plaintiff bore the burden to
convince the jury. See id. (affirming the denial of a new trial because, even though the movant
had offered “the only medical evidence presented,” that evidence was “not conclusive on the issue
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of causation, and the jury did not have to accept it as true”). In short, while the jury could have
ruled for the plaintiff, the evidence did not compel it to.
B.
Next, the plaintiff argues that the district court’s exclusion of her expert, Melvin Tucker,
constituted prejudicial error requiring a new trial. In his report, Tucker offered five opinions. He
criticized (1) the officers’ entry into the Garber home; (2) the officers’ decision to confront Garber
in his bedroom rather than communicate with him from a position of cover; (3) the officers’ failure
to properly respond to Garber’s apparent suicide-by-cop attempt; (4) the officers’ use of deadly
force; and (5) the Sheriff’s Office’s internal review of the incident. R. 34-11, Pg. ID 1114–20.
Frazier objected only to opinions (1) and (5), but the district court excluded the plaintiff’s expert
altogether (as well as Frazier’s expert). See HDM Flugservice GmbH v. Parker Hannifin Corp.,
332 F.3d 1025, 1034 (6th Cir. 2003) (“[C]ourts may exclude evidence sua sponte.”). In the district
court’s view, the expert testimony would not assist the jury because an ordinary person could
comprehend the facts and issues of the case. R. 121, Pg. ID 2164 (citing Salem v. U.S. Lines Co.,
370 U.S. 31, 35 (1962)); see Fed. R. Evid. 702(a) (requiring the court to determine that the
proffered expert testimony “will help the trier of fact to understand the evidence or to determine a
fact in issue”). This was not an abuse of discretion.
Opinions (1), (2), and (5). Most of Tucker’s proffered testimony was inadmissible because
it was irrelevant to the sole issue before the jury: whether, at the moment that Frazier shot Garber,
his use of deadly force was objectively reasonable. See Graham, 490 U.S. at 397. That eliminates
Tucker’s first two opinions that the officers made an unreasonable entry into the Garber home and
failed to reasonably plan their tactical operation before putting themselves in danger. Even
assuming that both are true, neither may be used to determine whether the later use of force was
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reasonable. Cnty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 (2017); Livermore ex rel. Rohm
v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007). And Tucker’s evaluation of the internal
investigation that was conducted after the shooting sheds no light on “the facts and circumstances
confronting” Frazier when he shot Garber. See Graham, 490 U.S. at 397.
Opinion (3). The plaintiff presented no evidence to support the proposition that this was a
“suicide by cop.” So the officers’ failure to follow standards for that situation was irrelevant. See
Fed. R. Evid. 104(b) (requiring proof of facts necessary to establish relevance).
Opinion (4). Tucker’s proffered testimony about whether Frazier used appropriate force
was relevant but also beyond the expert’s proper role: This part of the report told the jury what
law to apply and which witnesses to believe. United States v. Safa, 484 F.3d 818, 821–22 (6th Cir.
2007) (explaining that expert witnesses may take over neither the role of judge nor of juror).
Tucker also laid out certain basic principles that officers learn about armed suspects; in
short, though the presence of a firearm creates a “potential[]” threat to the officer, it is not alone
sufficient to justify the use of deadly force. R. 34-11, Pg. ID 1117. This testimony falls within
the “large gray area” of matters that “arguably fall within the realm of common knowledge and
common sense,” but that may sometimes be explained by expert testimony. 4 Jack B. Weinstein
& Margaret A. Berger, Weinstein’s Federal Evidence § 702.03[2][b] (Mark S. Brodin, ed.,
Matthew Bender 2020 LexisNexis ed.); see Champion v. Outlook Nashville, Inc., 380 F.3d 893,
908–09 (6th Cir. 2004) (“Courts have permitted experts to testify about discrete police-practice
issues when . . . their testimony assists the trier of fact.”). The district court’s determination that
Tucker’s testimony would not assist this particular jury was not “a clear error of judgment.” In re
Scrap Metal, 527 F.3d at 528. In any event, the plaintiff still could have put this information before
the jury. The plaintiff called multiple officers to the stand, any of whom could have testified (as
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lay witnesses) to what they had learned in training. See Fed. R. Evid. 702, advisory committee
notes, 1972 proposed rules (noting that expert opinions may be “unhelpful” when they are
“superfluous”). In short, excluding Tucker’s testimony did not create an unfair trial.
We affirm.
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