Date: 01-05-2023

Case Style:

Deanna L. Puskas v. Delaware County, Ohio, et al.

Case Number: 2:19-cv-02385

Judge: Sarah Daggett Morrison

Court: United States District Court for the Southern District of Ohio (Franklin County)

Plaintiff's Attorney:

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Defendant's Attorney: Stephanie L. Schoolcraft

Description: Columbus, Ohio personal injury lawyer represented Plaintiff, who sued defendants on a civil rights violation theory under 42 U.S.C. 1983.

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This § 1983 action involves the shooting death of Brian Puskas after police officers
responded to a 911 domestic disturbance call from Brian’s wife, Plaintiff Deanna L. Puskas.

The police body cameras tell much of the story here. Plaintiff’s version of events fills in
the rest for summary judgment purposes. See Ashford v. Raby, 951 F.3d 798, 800 (6th Cir. 2020)
(citing Scott v. Harris, 550 U.S. 372, 378–80 (2007)).

Around 11:14 a.m. on June 6, 2018, Deanna called 911 from her home in Delaware
County, Ohio, frantically claiming that her husband was threatening her and that she feared for
her life. She told the 911 dispatcher that when Puskas came home from work he was “not
normal,” was tearing up the house, and was “threatening [her] with guns and knives.” Deanna
stated that Puskas had “never acted like this before,” and explained that he had high blood
pressure and depression and was on “new medication from the doctor” for “inflammatories.”
Deanna also indicated that there were lots of guns and knives in the house, and that Puskas
“threatened to turn [her] into an ashtray.” He also cut open a window screen after she locked
him out and he was tossing items across the front yard. During the call, Deanna stated “I know
what he’s going to do, he’s going to kill me.”

Deanna ran to the neighbors’ and hid behind a truck. She told the dispatcher that Puskas
had “tremendous guns” in their house.

Several officers from the Delaware County Sheriff’s Office and the Sunbury Police
Department responded to an incident that dispatch “described as a domestic disturbance

involving firearms and knives.” Defendant Deputy Zachary Swick was the first to arrive at
11:25 a.m., knowing that Puskas had weapons and was “not acting right.” As he drove up,
Swick observed stuff scattered across the lawn and Puskas holding a rifle. Puskas put the rifle
down before Swick got out of the cruiser.
Swick told Puskas multiple times to put his hands up and to get on the ground. Puskas
walked toward the house instead. He stopped near a tree close to the front door, picked up a bag,
and pulled out a shotgun. Swick, who was about six feet from Puskas, fled for cover. His body
camera fell off in the process. Puskas told Swick that he had “better run.” From the safety of his
vehicle, Swick reported to dispatch that Puskas had a shotgun and that there were other weapons
in the yard. Puskas then dropped the shotgun.
From behind the cruiser, Swick reengaged with Puskas, asking “what’s going on,” and
broaching the topic of Puskas’s mental state. Officer Keith Brown from the Sunbury Police
Department arrived next, at 11:30 a.m. He joined Swick behind Swick’s cruiser. Brown also
instructed Puskas to approach, and repeatedly beckoned to Puskas: “Let’s talk about this, let’s
figure out what’s going on”; “Come on partner, come out here and talk to me,” “I understand
you’re having a rough day, why don’t we talk about it?”; “I understand, I’ve got plenty of time—
plenty of time”; and “Walk out this way partner, come on.” Puskas did not obey. When the next
officer, Sgt. Robert Curren, arrived at 11:32 a.m., he asked dispatch to send a negotiator.
Dispatch notified Curren that a negotiator was on the way.
More officers arrived, including Defendants Sergeant Robert Spring and Deputy Troy
Gibson. Gibson parked his cruiser on the west side of the residence (Swick’s was on the east).
Gibson, a canine officer for the Sheriff’s Office, brought his canine partner, Cash, along. Cash is
certified as a narcotics and patrol dog. Cash has been his canine partner since 2017. Relevant
here is Delaware County Sheriff’s Office Canine Policy, which states that “[t]he canine officer
shall, if possible, verbally warn the suspect(s) that if they do not stop, the canine will be
released.” The County also has Response to Resistance and Less Lethal Force policies.
Gibson joined the other officers in trying to persuade Puskas to engage with them.
Gibson told Puskas to “come to the sound of my voice, and we won’t have any problems,” and
“come out to us and you won’t have any problems.” Gibson was also preparing Cash “for an
apprehension,” repeatedly giving Cash the bite command. Puskas ignored Gibson’s commands
and continued to meander around the yard picking up various items off the ground, including a tshirt. When told to drop the shirt, Puskas tossed it at the officers.
Gibson released Cash shortly thereafter. Deanna maintains that neither Spring nor
Gibson warned Puskas to surrender or that the Cash would be released, and that Puskas did not
turn and run until after Gibson discharged Cash. This is the basis of her first excessive force
challenge. The officers maintain that they did not violate the Fourth Amendment because
Gibson did not release Cash until after Puskas started to run towards the house.
The officers’ differing accounts fuel the debate. Swick reported to investigating officers
that Cash was not released until after Puskas had turned to run towards his residence. Spring
recounted that Puskas “started to turn as to go back to the residence, [and] I advised Dep. Gibson
to deploy his K-9 partner to apprehend the subject, which Dep. Gibson did.”
On the other hand, Gibson, Cash’s handler and therefore the so-called “trigger finger,”
supports Deanna’s version of events:
Q. Now what does he have in his hand? 3:26 we stopped it at. Can you see that
he picked something up there?
A. Yes.
Q. Can you tell what that is?
A. I believe that is the shirt.
[Plaintiff’s Counsel]: Okay. And start at 3:26.
(Video played back.)
“You’re going to get bit. You’re going to get bit if you don’t (inaudible).”
“Stellen. Stellen.”
(Video playback stopped.)
Q. So is the dog released at this point, 3:37?
A. Obviously, yes.
Q. Did you identify yourself at that point?
A. No.
A. Okay. So he threw the shirt right before you released. Did he have a weapon
in his hands?
. . . .
A. No.
. . . .
Q. Okay. So in response to you releasing the dog what did Mr. Puskas do?
A. He ran towards the house.
Q. Okay. And what happened next?
A. He continued running. Cash ran next to him, did not engage him, and he
circled around the—whatever, the tree landscaping north of the house . . . .
The camera footage further establishes that Cash initially targeted the t-shirt, not Puskas.
Gibson refocused Cash on Puskas and followed Cash as Cash followed Puskas. Swick and
Spring followed behind Gibson and Cash. All had their guns drawn.
Puskas pivoted away from the house and darted behind the tree near the front door.
Gibson moved to the other side of the tree. Cash still did not bite or apprehend Puskas. Puskas
then reached down and picked up a black pistol case. Someone yelled, “he’s got a pistol”; Swick
yelled “drop it”; and Spring yelled “get off that.” Puskas pulled out a silver revolver, and the
officers shot him at 11:38 a.m. Puskas fell to the ground.
Swick kicked the pistol away and secured Puskas with handcuffs. Puskas was
transported to the hospital. He died there.
Deanna, as administrator of Puskas’s estate, sued Swick, Gibson, Spring, and Lt. Robert
Buttler (aka the “Individual Defendants”) under 42 U.S.C. § 1983, alleging that they used
excessive force when they (1) deployed Cash and (2) shot Puskas. Deanna alleged that Delaware
County was liable under Monell v. Department of Social Services, 436 U.S. 658 (1978), for its
lethal force and canine policies, and its failure to train or supervise the canine units. She brought
two state claims, as well.

* * *

The doctrine of qualified immunity shields “government officials performing
discretionary functions” from liability “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). “Thus, a defendant is entitled to qualified
immunity on summary judgment unless the facts, when viewed in the light most favorable to the
plaintiff, would permit a reasonable juror to find that: (1) the defendant violated a constitutional
right; and (2) the right was clearly established.” Williams v. Maurer, 9 F.4th 416, 430 (6th Cir.
2021) (quoting Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011)). Once invoked, the plaintiff
must show that the defendant is not entitled to qualified immunity. Id. (citation omitted). “That
is, . . . when a defendant raises the defense of qualified immunity in a motion for summary
judgment, the plaintiff must show that those facts and inferences would allow a reasonable juror
to conclude that the defendant violated a clearly established constitutional right.” Id. at 430–31
(citing Barton v. Martin, 949 F.3d 938, 947 (6th Cir. 2020)).

* * *

Deployment of a well-trained police dog is “[a]mong the various forms of force available
to law enforcement, that is a comparatively measured application of force, which ‘does not carry
with it a substantial risk of causing death or serious bodily harm.’” Jarvela v. Washtenaw Cnty.,
40 F.4th 761, 764 (6th Cir. 2022) (dog bite) (quoting Robinette v. Barnes, 854 F.2d 909, 912 (6th
Cir. 1988)). But only if it’s reasonable under the circumstances as measured by the Graham
factors. See Ashford, 951 F.3d at 801–03; Zuress v. City of Newark, 815 F. App’x 1, 5–6 (6th
Cir. 2020).

Outcome: The district court dismissed the claim against Buttler as time-barred and the Monell failure-to-train-or-supervise claim under Federal Rule of Civil Procedure 12(b)(6). The court granted summary judgment to the Individual Defendants, concluding that the officers did not use excessive force in either instance. The court granted summary judgment on the Monell county
policy claim. The court dismissed the state law claims.

Affirmed by the Six Circuit Court of Appeals.

Plaintiff's Experts:

Defendant's Experts:

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