Rose’s ruling sided with the defense’s argument that the officers – fearing for their safety - were shielded by qualified immunity. That legal doctrine prevents government officials from being sued for discretionary actions in their official capacity, unless their actions violated clearly established federal law or constitutional rights.
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McShann, died Oct. 20, 2017 from “multiple shotgun and gunshot wounds” after a confrontation with Moraine police officers John Howard and Jerry Knight in the early-morning hours, according to the Montgomery County Coroner’s Office.
“Plaintiff alleges to have forensic evidence to show that McShann was not holding the gun at the time he was shot,” the judge’s Feb. 18 ruling states. “There is no physical evidence or eyewitness testimony that contradicts Howard’s statements that McShann grabbed the gun.
“While McShann may have been moving the gun off his lap to exit the car, officers feared for their safety in the presence of the man they had roused from sleep,” Rose wrote.
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Rose dismissed the suit “without prejudice,” according to court records. That means it potentially can be refiled.
Filed in March 2018, the suit claimed a conspiracy and misconduct involving several Moraine police officers.
Howard, Knight, Michael Cornely, Justin Eller, Brian O’Neal and unnamed officers “acted both willfully, wantonly, recklessly, negligently, intentionally, and with malice and willful indifference,” in the shooting, the lawsuit claimed.
McShann was in a car off Pinnacle Road and was pointing a Ruger semi-automatic pistol with a high-capacity magazine at the two officers when he was shot and killed, Moraine Police Chief Craig Richardson said at the time.
The Montgomery County Prosecutor’s Office did not obtain indictments in the case.
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Police found McShann asleep or passed out in a locked, running vehicle before dawn at an apartment complex while in possession of the Ruger semi-automatic, court records show.
After calling for back up and running the license plate, the officers used stop sticks behind the vehicle and requested that a ballistics shield be brought to the scene.
After the ballistics shield arrived, Knight began banging on the window, and McShann woke up and complied with the officers’ commands. Then suddenly, McShann grabbed the gun and pointed it toward the officers, according to court records.
Both Howard and Knight made a “split-second, instantaneous decision” and fatally shot McShann, court records show.
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The plaintiffs said Howard and Knight violated McShann’s constitutional rights.
“An officer’s use of deadly force is considered under a Fourth Amendment inquiry, and is subject to an objective reasonableness standard, which requires balancing the nature and quality of the intrusion on an individual’s Fourth Amendment interests against the government’s interests,” according to a December 2019 filing.
The case has been closed, according to court records.
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