Appeals court upholds $4 million award to family of man shot to death by Cleveland police officer

By Cory Shaffer
Kenny Smith

CLEVELAND, Ohio — A federal appeals court panel on Friday upheld a verdict awarding $4 million to the family of an aspiring musician who was shot to death by a Cleveland police officer in 2012.

Three judges at the U.S. Court of Appeals for the 6th Circuit in Cincinnati affirmed a jury’s 2015 finding that Cleveland police officer Roger Jones used excessive force and was civilly liable for the death of 20-year-old Kenny Smith.

Lawyers representing Smith’s family, Terry Gilbert and Jacqueline Greene, celebrated the panel’s opinion as a moment of accountability in the national conversation on police shootings.

“This was a horrific and heartbreaking shooting,” Greene said in a news release. “We hope the outcome of Kenny’s case sends a message that unjustified police shootings will not be tolerated.”

Jones shot Smith in the back of the head at East 9th Street and Prospect Avenue in March 2012. Police stopped the car because they believed the driver, Devonta Hill, had just fired into a crowd outside Wilbert’s Food & Music in downtown Cleveland.

Then-Prosecutor Timothy J. McGinty initially cleared Jones of wrongdoing and wrote in an April 2014 letter that the officer “correctly and heroically took action to protect the safety of the citizens of Cleveland.”

The officer said Smith refused an order to get out of the car, and resisted when Jones tried to pull Smith out of the car, according to a recitation of the facts included in the court opinion handed down Friday.

Smith reached for a gun in the center console, and Jones fired a single shot, the officer said.

But two eyewitnesses from a different car, Kayla Hodge and Alexis McCray, testified at civil trial that Jones pulled Smith out of the car and ordered him to kneel on the pavement, according to the opinion handed down Friday.

As Smith complied, Jones placed his gun onto the back of Smith’s head and fired a single shot, the witnesses testified.

Investigators found none of Smith’s blood in the car. They did find the expelled bullet cartridge from Jones’ gun in a puddle of Smith’s blood outside the car, according to the opinion.

McGinty, as well as Cleveland police detectives, concluded that Jones fired as Smith lunged for a gun on the car’s center console. But Smith’s family, which sued in 2013, asserted at the civil trial that Smith was outside of the car — and away from the gun — when Jones shot him.

A federal jury in September 2015 found that Jones, a Cleveland officer since 2007, was liable for Smith’s death. It awarded Smith’s family $5.5 million, and caused the prosecutor’s office to ask the sheriff’s department to re-investigate.

U.S. District Court Judge Solomon Oliver later lowered the jury’s award from $5.5 million to $4 million.

The City of Cleveland appealed the ruling, arguing that Oliver made several errors. The city argued Jones’s decision to shoot Smith was objectively reasonable because a gun was next to Smith’s elbow in the car

The three-judge panel unanimously rejected all of the city’s arguments — including the city’s contention that the shooting was objectively reasonable because Smith’s elbow was next to a gun found in the car.

“A police officer cannot shoot a person simply because the person is near a gun,” the opinion, authored by Circuit Judge Raymond Kethledge, said.

Jones is still on the city’s police force and is assigned to the Third District’s community services unit, department spokeswoman Sgt. Jennifer Ciaccia said.

“The City received the opinion this morning and we are reviewing it at this time,” Barbara Langhenry, the city’s law director, said in a statement emailed by a spokesman.

Smith’s case is one of two recent cases that lawyers in police misconduct lawsuits have pointed to as an example of the city trying to avoid paying out multimillion dollar civil judgments.

In 2013, former Cuyahoga Metropolitan Housing Authority police officer David Ayers was awarded $13.2 million after a jury found two Cleveland police detectives, including one that is now dead, framed him for a murder he didn’t commit. Ayers spent 11 years in prison.

In that case, a city lawyer represented the officers at trial, then sought to foist the judgement onto the surviving officer. The city then offered to pay a lawyer to file for personal bankruptcy on behalf of the surviving officer, in order to prevent the officer from having to pay.

A three-judge panel at the Eighth District Court of Appeals in November overturned a Cuyahoga County Common Pleas Court judge’s opinion that stated Cleveland should indemnify the officer. Ayers has asked the full court to re-examine the panel’s ruling.

One of Ayers’ attorneys, Ruth Brown, previously told cleveland.com that, the city handed over in response to her request for other cases where the city paid for a cop’s bankruptcy lawyer a contract in which it agreed to pay up to $10,000 for one to represent Jones.

Jones has not filed bankruptcy.

The result of such a practice would make it unlikely that plaintiffs who are awarded a judgment ever get paid, Gilbert said previously.

Cory Shaffer, , cleveland.com, “Appeals court upholds $4 million award to family of man shot to death by Cleveland police officer”, https://www.cleveland.com/metro/index.ssf/2018/01/appeals_court_upholds_4_millio_1.html
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