Linda Martz

Reporter

MANSFIELD – A federal judge has ruled that a jury should hear testimony in the wrongful death lawsuit against three Richland County sheriff’s deputies who fired shots during a March 2014 domestic violence call in which Brian Garber was shot and killed.

U.S. District Court Judge Aaron Polster ruled that Deputy Raymond Frazier, Deputy Andrew Knee and Sergeant James Nicholson will remain defendants in the lawsuit filed by Garber’s widow, Sara Knowlton.

However, in a ruling issued on April 5, the judge dismissed all other defendants in the case from liability, including Richland County Sheriff Steve Sheldon, Captain Donald Zehner and the Richland County Board of Commissioners.

In her civil suit, Garver's widow contends her husband was an unarmed man in the midst of a mental health crisis, that no weapon was found on him, and that there were inconsistencies in accounts given after the shooting by at least one of the deputies.

Lawsuit alleges wrongful death in Garber shooting

All three deputies testified in grand jury or depositions that they fired at Garber while he was sitting on in his former childhood bedroom at his parents' home at 3400 Mill Run Road, south of Lexington, on March 16, 2014, after hearing a “pop” they believed came from a gun they thought Garber had hidden under his shirt.

A grand jury cleared deputies of criminal charges in late 2014.

His widow filed a lawsuit in early 2015. In January of this year, the defendants made a motion for summary judgment, seeking to have the case dismissed.

"We are pleased that the District Court narrowed the parties and the issues to be presented at trial," Richland County Sheriff Steve Sheldon said Monday. "We continue to support our fine deputies and look forward to commenting on this matter once the case has been concluded."

Daniel Downey, the attorney representing defendants in the lawsuit,could not immediately be reached for comment.

Connie Garber, Brian Garber's mother, said she was pleased a trial will go forward, so testimony can be given in what she believes was a death precipitated by one deputy's decision to fire the first shot. "Frazier is the one that carried out the shooting," she contended. "It's all Frazier. He never should have had a gun or a badge."

"I am happy what the judge decided. It's about time. I want justice for my son. He didn't deserve this. He was not armed. They didn't follow their protocols," she said.

Attorney Jacqueline C. Greene of the Cleveland law firm of Friedman and Gilbert, which is representing Garber's estate, quoted Judge Polster as saying in his ruling that each of the deputies is "either mistaken or lying" about shooting in response to a gunshot sound from Brian Garber or otherwise, adding the judge concluded that testimony created a question of fact and credibility for the jury to decide.

Greene said the ruling permits the lawsuit to proceed to trial against the three deputies who fired shots.

“It is unconstitutional and a violation of fundamental rights for law enforcement officers to use deadly force against individuals who do not pose an imminent threat of serious bodily harm or death to others. (The Garber family) contends that these deputies testified that they did not feel that Brian posed an imminent threat of serious bodily harm or death prior to this alleged popping sound,” she said.

Garber, who had a history of mental health issues, was killed after sheriff’s deputies were called in on a domestic violence complaint for a second time in one night.

Deputies initially were called to Garber’s home at 3425 Mill Run Road on a domestic violence call alleging that he had pushed his wife, then his mother. When deputies arrived, Garber had left the house.

The shooting took place after another 911 call saying Garber had been found at his parent's home, across the street, and was implying to his parents, Matthew and Connie Garber, and texting his wife that he had a gun.

Deputies testified that when they arrived, Garber had a beer can in one hand and was holding his other hand under his shirt, with what appeared to be a gun hidden underneath refusing orders to show his hands. They testified that attempts by Nicholson to de-escalate the situation were unsuccessful, that Garber told them would have to shoot him, and that all three fired shots at Garber after hearing a popping sound from his direction.

Sixteen shots were fired at close range, killing Garber. No gun was found.

All three deputies later testified that while they heard a sound from Garber's direction, they did not see a flash.

Judge Polster said in his ruling that Frazier's account of what happened varied from his first sworn statement to later testimony — but said those inconsistencies were "essentially irrelevant," since they involved Garber's hand motions, not the sound Frazier said spurred him to fire his weapon.

The judge also noted that after the shooting, the three deputies waited downstairs for about an hour, and that although they were instructed not to discuss their observations with each other, some discussion did occur.

Polster noted that a BCI agent found a remote control in the bed next to Garber, but that some witnesses had no recollection of seeing that object on the bed.

The federal judge said all three deputies were adamant in their depositions that they believed the initial shot did not come from a fellow officer. "They were all wrong; Garber did not have gun, and the only shots were fired by the three sheriff's deputies," the judge wrote.

"Because Brian Garber was unarmed and produced no 'pop,' the court can only conclude that one of the deputies fired the first shot and that none of the deputies fired in response to any gunshot sound from Brian Garber.

"Thus, each of the deputies is either mistaken or lying about shooting in response to a gunshot sound from Brian Garber or otherwise. This is not a question of law for the court, but a question of act and credibility for a jury to decide," the ruling said.

"The jury must ultimately decide why three sheriff's deputies insist upon a version of the facts which they know is not correct," Polster wrote, adding that a jury should look at whether the use of deadly force was reasonable.

In portions of the decision dismissing county commissioners or the sheriff's department from liability, the federal judge said found "no evidence that the deputies' actions stemmed from an official policy, custom, or practice."

Written policies at the sheriff's department do not demonstrate "toleration of excessive force in this case," he wrote.

Polster wrote that the sheriff himself was not at the scene during the shooting, Zehner was not in a location in the house where he could have seen what was happening or intervened, and government employees are entitled to some immunity, so long as they do not act with malice, Polster said.

Garber had childhood ADHD and suicidal thoughts a couple of years before his death, according to court records.

Connie Garber said her son as "happy go lucky" most of his life, but problems occurred after the loss of his daughter to SIDS in 2012.

lmartz@gannett.com

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Twitter: @MNJmartz

Describing Brian Garbers last moments