Judge: Lawsuit against deputies will go to trial

3/15/2012

Some 20 months after two Sandusky County Sheriff's deputies shot and killed a rural Fremont man inside his parents' home, a federal judge has ruled that a civil suit brought by the victim's family should go to trial.

"This case presents close and difficult questions regarding the reasonableness of force used and the application of qualified immunity," U.S. District Court Judge Jack Zouhary. "A thorough review of the record reveals genuine issues of material fact, making this case one for a jury."

Tracy and Kim Jones filed the $20 million wrongful-death suit against Sandusky County Sheriff's Deputies Mario and Jose Calvillo, Sheriff Kyle Overmyer, and the county claiming the deputies made a warrantless entry and used excessive force July 11, 2010, when they shot and killed their son, Bryan Jones, 26.

That evening, Tracy Jones had called the sheriff's office and said his son had been drinking for two days, had threatened to kill himself and family members, and was inside their home with guns. Sheriff Overmyer decided to call out the department's tactical response team, which promptly entered the house, detonated a "flash-bang" distraction device, and confronted Jones, who was seated on the couch with an unloaded shotgun across his lap.

The deputies said Jones swung the gun around and pointed it at the deputies, prompting two of them to shoot. Nine shell casings were recovered from the scene.

Among the findings in his 21-page opinion filed Tuesday, Judge Zouhary wrote: "Because Defendants detonated a flashbang device instead of undertaking alternative efforts to resolve Tracy's call for help, their use of force could be held unreasonable."

The manual for the tactical response team specifies that forced entries into residences are appropriate only as a last resort, the judge noted. Once the deputies had entered, Judge Zouhary said, it was not clear whether they gave Jones time to comply with any orders to put down his gun as they fired the shots within 10 seconds of entering the house.

"A jury could conclude Defendants used excessive force because the [tactical response team] entered with no prior negotiation or warning and the flashbang impaired Bryan's ability to see, hear, or understand Defendants' commands," the judge wrote. "On the other hand, if the jury accepts the facts as Defendants argue, their conduct would be reasonable because probable cause existed to believe Bryan posed a 'threat of serious physical harm.' Either way, this issue is for a jury; this Court cannot grant immunity as a matter of law."

Dennis E. Murray, Sr., a Sandusky attorney representing the Joneses, said the case goes right to key constitutional issues.

"You can rest assured these standards the judge is setting -- depending on the outcome of the jury trial -- will go a long way toward what insurance companies say to law enforcement about what you have to do with respect to making entries and what you have to do with respect to training," Mr. Murray said.

Judge Zouhary's ruling followed a recommendation by a court magistrate that the court grant summary judgment for the defendants. The Joneses objected, and Judge Zouhary agreed.

Teresa Grigsby, attorney for Sandusky County, could not be reached for comment.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-724-6129.