Yes, I agree we have a different telling of the accounts from this incident that could rightfully dispose of this case, but now even more questions arise!
I believe being this took over 8 months to investigate we have something bigger, more sinister being covered up, the drug(s) found in Brians body. Do we not remember there was a body left for dead on Hull Rd that overdosed on a similar product? Was there not a witness who dropped this body on Hull Rd. who also committed Suicide? Was it not the man of one of her children wanted for questioning not killed before he could be questioned? All we have left now is a black man being held by the Sheriff in relation to having a gun under disability who may know more, can we get his recollection of the body that was dumped or why he may think the man wanted for questioning wound up dead in Mansfield after running from Norwalk?
Yes, they too would like you to think I’m crazy we well – hmmm? Future murder for hire to silence the needed attention on the drug and theft problems we have here in our community, ALL of which have surrounded dirty cops either behind it or who have been paid off to protect it! Then we can now add in a Deputy who’s had NUMEROUS accounts of outbursts and violence who’s first to see a fictitious gun because/maybe the steroids he abuses played tricks on his mind because someone planted a seed? Come on people, are these the cops we want to trust with our families lives, that is a REAL question. We have also seen, heard, and know cops who don’t like the Mansfielders Perspective Group who asks the questions that need answered. Here I can only hope the community will speak out on today’s forum of abuse of power and authority in our community before they incite violence that brings on Marshall Law. This is CLEARLY a blatant attempt for what can be called Executive Branch take over in which Laws, Procedures, and Policy’s in place are blatantly ignored for the people to have control over this madness. We are heading down a very DANGEROUS path in which anyone at anytime can be murdered by a cop willingly and knowingly lies. It’s been done before and it will continue, why else were prior reprimands kept from this Grand Jury? Because one if not all would have been indicted is why!
I WILL ASSURE YOU the public that this deal is not done and we the people of integrity in this watchdog group will be keeping a watchful eye going forward, for these men are now on radar and their every move scrutinized. Surely we will be calling for Sheriff Sheldons job if it’s not already in jeopardy from past dealings and current litigation that is being said can and will implicate him in other wrong doings in our fair County. You are NOT SAFE with this Sheriff and/or a handful of narcissistic sociopaths who have infiltrated his regime. Let the RAIDER TRAINING begin, more deaths to happen as we have surely spun this without public record over the last 8 months. Surely as I am alive we will be having folks come forward to scrutinize!
P.S. I want to just say Thank You personally to the Prosecutor from Cuyahoga County to take the little time he took with little involvement I am sure in this fiasco. Job well done placing the BLAME where it don’t belong, now you have 3 more victims you have laid blame on for the death of their husband, mother, father, and the countless family members. You should be so proud????
Maybe the NEXT CONflict of interest you can investigate why our late Prosecutor’s office called for executive session while NOBODY assigned from his office showed up? Then you have the minutes that depicted the public was shut out yet Donald Zehner and an Attorney was there for unknown reasons to the public with Al from the MNJ depicting privacy due to Sunshine Laws??? What the hell is going on here is the better question our group will be investigating and watching so don’t be surprised more lies being made up to silence. They tried the CONventional way of silencing this group by spreading lies and deception with a fictitious character called Drew Tyler who also can be found on my website, yet local LEO’s and Admins refuse to locate for questioning. Maybe if you read this you can find this person?, surely they hold the keys to the curtain they hide behind, hell they are probably the mastermind behind much of the deception here? They after all enjoy screwing with the public under this guise that nobody will look into who has said time and time again this will continue on the premise of “prove it” – Well, we could IF LAW ENFORCEMENT DID THEIR JOB, RIGHT?
Have a nice day! – Our community is growing and soon we will have integrity brought back to justice as more who are wronged by this corrupt Executive Branch take over unite!
As the saying goes…”UNITED WE STAND, DIVIDED WE FALL”
Timothy J. McGinty
CUYAHOGA COUNTY PROSECUTOR
SPECIAL PROSECUTOR’S REPORT CONCERNING THE DEATH OF BRIAN GARBER
On September 3, 2014, the Cuyahoga County Prosecutor’s Office was appointed by the Richland County Court of Common Pleas to conduct an investigation into the circumstances of the death of Brian Garber. Consistent with this mandate, the following facts and circumstances were examined and analyzed.1 These relevant facts are assembled on a timeline, followed by the appropriate findings as dictated by the evidence.
On March 16, 2014, three Richland County Sheriff’s Deputies, Sgt. James Nicholson, Deputy Raymond Frazier, and Deputy Andrew Knee fired their weapons during an encounter with Brian Garber at 3400 Mill Run Rd., Lexington, Ohio, resulting in Garber’s death. The events leading to this incident are as follows:
March 14, 2014 20:54:44 to 23:14:12
Brian Garber sent a series of text messages to his wife, Sara Knowlton, in which Brian complained about Sara’s relationship with her boyfriend. Brian concluded by texting Sara that he was ending their relationship.
March 15, 2014 7:14:25 to 20:50:25
Brian Garber and Sara Knowlton exchanged text messages about having to find money to pay a nanny. The two also discussed Brian purchasing marijuana and an item for Sara referred to as “7.5,” which is a street name for hydrocodone. At various points during the day, Sara asked Brian if he was sleeping and threatened to “call the cops” to check on him.
1This report draws from the work of the Ohio Bureau of Criminal Investigation. A team of investigators, led by Special Agent Cory Momcholov, conducted an extensive and thorough evaluation of the evidence in this case. Additionally, Investigators from the Cuyahoga County Prosecutor’s Office assisted BCI in interviewing witnesses. The State is grateful to the professional and exhaustive work of these investigators. Additionally, Richland County officials were wise to recognize a conflict of interest in this case and to request a neutral investigation by outside agencies.
March 16, 2014 8:32:41 to 18:28:26
Sara sent Brian a series of increasingly hostile text messages about him sleeping, endangering their children, and overdrawing their bank account. Sara confronted Brian about finding klonopin pills, which she accused Brian of abusing. Sara texted Brian, asking him if the couple’s infant daughter had died because he had been high on the pills. This caused Brian to become irate. Sara continued to tell Brian he should have saved her some money, causing Brian to continue to insult Sara and complain about her relationship with her boyfriend. Sara threatened to call Brian’s psychiatrist and probation officer, causing Brian to respond and tell Sara that all she cares about is money. Brian again told Sara to stop blaming him for their infant’s death. Sara told Brian he has to stay with his mother. Brian then told Sara that he was ending their relationship. Sara told Brian that she flushed his pills, and Brian responded by telling her that she needs to leave. Sara refused and instead instructed Brian to live with his mother. Sara told Brian multiple times that she was not angry with him, but that he shouldn’t take klonopin pills. Brian accused Sara of allowing his mother to manipulate and control him.
March 16, 2014: Sara Knowlton’s first call to 911
At 7:02 p.m. on March 16, 2014, Connie Garber placed a frantic call to 911, saying “Get the cops here, 3425 Mill Run Road * * * [w]e got a nut here, get the cops.” Mrs. Garber told the dispatcher that her son was “going nuts on us, beating on me and everything, he is breaking stuff.” When asked for information, Garber handed the phone to Sara Knowlton, who told the dispatcher that her husband, Brian Garber, broke down a door and was “beating his mother and strangling me.” Sara told the dispatcher that she believed Brian was high on klonopin. 911 dispatched Sheriff’s deputies to the scene.
Either during or immediately following the incident, Sara Knowlton sent a text message indicating that Brian attacked her and is going to jail. In the text message, Knowlton claimed that she was hurt and wanted the recipient of the message to come get her.
March 16, 2014, 19:10 hours
Deputy James Berry, Lt. Donald Zehner and Deputy Andrew Knee responded to the 911 call at 3425 Mill Run Rd. By the time they arrived, Brian Garber had left the scene. Deputy Knee observed a red mark on Connie Garber’s upper chest that he believed was an injury caused by Brian Garber, and photographs the injury. Deputy Knee spoke to both women about filling out paperwork to press Domestic Violence charges. Both women filled out and sign paperwork. Connie Garber’s affidavit stated that her son “hit me in the left arm and chest,” and Sara Knowlton’s affidavit stated that Brian “[b]roke in the door attacked me by strangling me and pushing me down.” Matthew Garber arrived and told Connie and Sara that he didn’t think they should press charges against Brian. Deputy Knee told Matthew to return to his car
and not to interfere with the situation. Deputies began searching the surrounding area for Brian Garber with the intent to arrest him for domestic violence.
March 16, 2014 20:15:27 to 20:21:48
Brian Garber texted Sara “just so u know I have a gun now too… so DON’T fuck with me!!!!” Brian followed up with “those pussy cops can throw me in jail put me in prison…it doesn’t matter what they do cuz once im out…. U R DEAD!!! * * * and believe me im not afraid of prison I think I would like a big black dick inside me actually hell I wouldnt mind finding some poor young victim * * * 2 anally rape myself.”
March 16 2014: Connie and Matthew Garber’s confrontation with Brian Garber
After the completion of the domestic violence packets at 3425 Mill Run Road, Connie and Matthew Garber returned to their home at 3400 Mill Run Rd., across the street from the home where Brian Garber and Sara Knowlton lived with their two children. When they entered the house, they saw Brian’s shoes and realized that he was in their home. Both Connie and Matthew proceeded upstairs to Brian’s old bedroom, where they saw Brian sitting upright on the bed. They observed that he has been drinking a can of beer. Both Connie and Matthew told Brian he shouldn’t be drinking and that he needed to get help. Brian told Connie and Matthew that “you wouldn’t want to see what’s under my shirt, I’ll just shoot you.” Brian also told Connie and Matthew that he knew the cops are coming. Both Connie and Matthew saw Brian holding something under his t-shirt. Although Connie was skeptical that Brian was holding a gun, Matthew believed that what Brian has under his shirt was a gun. Matthew described seeing Brian pointing what he thought was a gun at him and Connie from under his shirt. Matthew told investigators that he did not believe Brian was pointing his finger. Matthew and Connie left the room. Matthew then told Connie, “maybe you should tell [the officers] to come back and that he could possibly have a weapon.” Connie took the children in her car and left Matthew at the house. She then went back across the street where she told Sara Knowlton that Brian “has a gun, call 911.” Connie then left with Sara and Brian’s children.
March 16, 2014: Sara Knowlton’s Second Call to 911
At approximately 8:12 p.m. on March 16, 2014, Sara called 911 a second time and told the dispatcher that her husband Brian was at 3400 Mill Run Rd. and had a gun. As a result, deputies were dispatched to the scene again. Sara told the dispatcher she was all alone with a broken door, and the dispatcher told Sara to barricade herself by pushing something up against the door. Sara could be heard to be crying and frantically pushing an object in the background, which Sara told the dispatcher is a washing machine. When asked why she thinks Brian has a gun, Sara told the dispatcher “He just text[ed] and said he had one and then he went up there and showed his parents, so my mother-in-law took our kids, put them in the car and ran.” Sara also told the dispatcher that Connie did not think that Brian was really
holding a gun. Sara repeated Brian’s text message to the dispatcher, stating “those pussy cops can throw me in jail put me in prison it doesn’t matter what they do because once I am out you’re dead.” Sara also repeated the other text messages from Brian. Sara assured the dispatcher that Connie took the children away from the house. The dispatcher had Sara stay on the line until officers arrived. While on the line, Sara heard that shots had been fired from the background of the call.
Dispatch records show that as a result of Knowlton’s second 911 call, deputies were notified to respond back to the area at 20:14:35 p.m. on March 16, 2014.
March 16, 2014: Lt. Zehner’s account of shooting
Lt. Zehner stated that after he and Deputy Knee left the area, he received a dispatch informing deputies that Brian Garber was back at Mill Run Road, and that a text message was sent from Brian’s mother to Sara that Brian has a gun. Zehner arrived on scene at 3400 Mill Run Road and took command, sending one deputy to the rear of the house. According to dispatch records, Zehner advised dispatch that he was on the scene at 8:20:25 p.m. All of the deputies and officers who arrived were in full uniform. Sgt. Nicholson proceeded into the garage and they were met near the door by Matthew Garber, who told them that Brian was in the upstairs bedroom.
According to dispatch records, Zehner advised dispatch to hold radio traffic (due to the handling of an ongoing emergency) at 8:22:20 p.m. Zehner, Knee, Frazier, and Nicholson entered the house and proceeded upstairs. Zehner told Deputy Knee to remain with Sgt. Nicholson due to his status as a trainee. Zehner was following the other three deputies, and heard someone say “he’s got a gun” and “drop the gun.” From his position at the top of the stairs, Zehner could not hear Brian’s voice but said that he heard one of the deputies tell Brian “I have family, you have family, we don’t want to kill each other” and “put the gun down.” Zehner stated that he heard deputies say several times “put down the gun,” followed by shots being fired. Zehner stated that he saw the three deputies in the doorway standing shoulder to shoulder, and that he could not tell who was firing their weapons. According to dispatch records, at 8:23:55 p.m., Zehner then radioed dispatch that shots had been fired. Zehner then entered the bedroom where the shooting occurred and commanded Deputies Frazier and Knee and Sgt. Nicholson to go downstairs. He checked Brian Garber for signs of life, and it was clear he was dead. Zehner did not see a gun when he entered the room. When an EMT arrived, Zehner escorted him to the room where the EMT placed pads on Brian Garber’s body to check for vital signs. Zehner later accompanied Assistant Prosecutor Bambi Couch Page to the bedroom in order for her to inspect the scene.
March 16, 2014: Deputy James Berry’s account of the shooting
Deputy Berry had been the first officer to arrive at the initial 911 call for help at 3425 Mill Run Road, and had assisted in the unsuccessful search for Brian Garber.
Shortly after Deputy Berry left, he received a radio dispatch call that the suspect’s mother was texting the suspect’s wife that he was in the house with a firearm, and the wife was afraid that the suspect would kill her. Berry recalled hearing the dispatcher describe a text that “It doesn’t matter what the cops do, once I get out of jail you’re dead.” When he got to 3425 Mill Run Road, he learned that Brian Garber was in the residence at 3400 Mill Run Road. All of the deputies proceeded up the driveway together. At the scene, Deputy Berry took up a position at the rear of the house in case Garber attempted to flee into that area. While behind the house, he saw a light turn on upstairs. Thinking Garber might try to jump out of a window, Berry watched the window but then heard shots. Berry thought 10 seconds went by between the light coming on and the gunshots. Berry proceeded into the house and saw Lexington and Bellville officers speaking with Matthew Garber. At Lt. Zehner’s instruction, Berry took up a position at the end of the driveway and began a log of all persons entering the scene.
March 16, 2014: Officer Jason Hutchison’s account of the shooting
Bellville Police Officer Jason Hutchison received a dispatch to respond to 3400 Mill Run Road to provide assistance to Richland County Sheriff’s Deputies in response to a male with a gun threatening his family. He was present when deputies went inside, and was near the stairs when shots went off. Hutchison and another Bellville Police Office accompanied Matthew Garber outside after the shooting, and remained with him until detectives could respond and interview him. Matthew Garber told Hutchison “I don’t know where he had a gun,” and “had it under his shirt, I know he had a gun.”
March 16, 2014: Captain Troy Weaver’s account of the shooting
Capt. Weaver, of the Lexington Police Department, received a call from the Richland County Sheriff’s Department to assist their units in a situation involving an armed man. Weaver responded with Lexington Patrol Officer Beasley to 3400 Mill Run Road. Captain Weaver entered the residence when several deputies were already talking to a male on the second floor. As Weaver waited at the bottom of the steps, he heard Lt. Zehner say that the male had a gun. Weaver also heard a voice that he believed to be Sgt. Nicholson say “[w]e all have families, don’t do it.” Weaver stated that he then heard 5 to 6 gunshots. Weaver thought that the duration of time when he heard deputies were speaking with the suspect to the point of the gunshots lasted one to two minutes.
March 16, 2014: Officer Michael Beasley’s account of the shooting
Lexington Police Patrol Officer Michael Beasley responded to the initial domestic violence call at 3425 Mill Run Road to assist Sheriff’s deputies. Officer Beasley assisted in the unsuccessful search for Brian Garber. After leaving, Beasley received a dispatch call that Richland County was going back to the area because family members had located Garber at 3400 Mill Run Road and that Garber had a gun.
Beasley arrived near the scene of 3400 Mill Run Road along with Capt. Weaver and waited at the city limits until other deputies met them and requested assistance. Both Weaver and Beasley proceeded with deputies to 3400 Mill Run Road. Beasley accompanied Weaver to the base of the stairs while other deputies were upstairs. Beasley could hear one of the deputies attempting to talk Garber into surrendering. Beasley stated he could hear a deputy say “You don’t have to do this, and “we all have families.” Beasley told Matthew Garber that he needed to leave the residence. At that point, Beasley heard shots being fired and then grabbed Matthew Garber and escorted him out of the residence. Beasley said that outside, Matthew Garber stated that he had found his son in the house and had seen that he was holding a handgun in his coat. Beasley was unable to provide a time frame of how much time had elapsed during the incident.
March 16, 2014: Bambi Couch Page’s response to the shooting
Following the shooting, then Assistant Richland County Prosecutor Bambi Couch Page received notification from another Assistant Richland County Prosecutor that a shooting had occurred at 3400 Mill Run Road. Ms. Couch Page and then-Richland County Prosecutor James Mayer, Jr. went to the scene in order to observe and provide advice. Ms. Couch Page, accompanied by Lt. Zehner, observed Brian Garber’s body and noted the presence of a remote control unit2 on the bed. Prosecutor Mayer and APA Couch Page advised Richland County Sheriff, J. Steve Sheldon, to request that the Ohio Bureau of Criminal Investigation (“BCI”) conduct an investigation into the shooting to avoid any conflict of interest. Sheldon agreed and requested that BCI agents respond to the scene. APA Couch Page also received notice that an Investigator with the Richland County Coroner’s office had been notified of the shooting and wanted to know if the body could be retrieved. APA Couch Page notified officers that no Richland County Coroner’s employee could enter the scene or retrieve the body until BCI Agents had an opportunity to arrive, collect evidence, and document the scene. BCI crime scene technicians were unable to respond to the scene until several hours after the incident because they were coming from another area of the State where they had been handling a separate case.
March 16, 2014: Sgt. James Nicholson’s statement
After having been advised of his rights, Sgt. James Nicholson agreed to voluntarily provide a written statement and an interview to BCI and CCPO investigators. Sgt. Nicholson initially responded to the Domestic Violence call at 3425 Mill Run Road, where he arrived and assisted Deputy Berry in the unsuccessful foot search for Brian Garber. Sgt. Nicholson spoke to a neighbor, who had seen a person wearing
2The “remote control” unit belonged to a toy car. There were three remote control toy cars in the closet of the bedroom where the shooting occurred. Including the device found on the bed, Investigators also found two other remote control devices in the closet accompanying the three toy cars.
dark clothes run across the yard and into the street. Sgt. Nicholson left the scene upon completion of the domestic violence packets.
About a half hour later, Sgt. Nicholson received the dispatch that the suspect had been located at 3400 Mill Run Road by his parents, and had a firearm in his possession. Upon return to the area, Sgt. Nicholson met Lt. Zehner, as well as Deputies Frazier, Berry, and Knee. Nicholson knocked and entered the open garage door of the residence and encountered Matthew Garber. Sgt. Nicholson stated that he asked Matthew Garber if Brian Garber was present, and told Matthew that they had a signed domestic violence packet against Brian. According to Nicholson, Matthew Garber then directed the officers to the stairs and indicated that Brian was upstairs. Nicholson stated that he climbed the stairway, and found Garber sitting in the last bedroom on the left with both hands hidden from view. He stated that the light was off, and he could see Garber sitting on the bed with his back to the headboard. Nicholson stated that he moved into the doorway and turned the light on. Brian Garber then told Nicholson that he had a gun. Nicholson stated that Deputy Knee was standing in the doorway to the left of him, and Deputy Frazier moved past them and entered the room. Nicholson said Garber was very agitated and his eyes were extremely large. He saw an object under Garber’s shirt that appeared to him to be the frame of a Glock handgun. Nicholson asked Garber to show him his hands, and he said no. Nicholson told him that “we all have families here, and that we would take him to the hospital to get him help.” Garber replied “fuck them.” Nicholson plead with Garber “don’t do this,” but Garber stated “fuck them,” “no one can help,” “shoot me,” and “kill me.” Nicholson stated that he told Garber that isn’t going to happen and again told Garber to drop the gun.”
Nicholson stated after a short pause, he heard a loud “bang,” which he believed to have been a firearm being shot from Garber’s direction. At the same time Nicholson heard the bang, he also saw Garber’s hand jerk the object beneath his shirt. Nicholson then started firing. After two shots, Nicholson noticed that his gun had malfunctioned and upon inspection, found that his hand had pressed the magazine release button, causing his magazine to fall on the floor. The gunshots caused Garber to slump against the wall, although Nicholson could still not see what he had been holding under his shirt. Deputy Frazier, after shooting stopped, radioed “shots fired.” Lt. Zehner then came in, telling them not to touch anything and instructed Knee to go get the camera. Zehner stated that he would handle radio traffic and photos, and told Nicholson, Knee and Frazier to go downstairs.
Nicholson stated that shortly after the incident, Frazier stated that he thought he had been hit by a bullet. Nicholson was present when Frazier removed his vest to inspect, but no impacts could be found in the area where Frazier thought he felt pressure.
Nicholson stated that during the encounter with Brian Garber, he believed that his life as well as the lives of his fellow deputies had been threated, and that he believed
that Garber was in possession of a firearm based on the information he had a the time.
March 16, 2014: Deputy Andrew Knee’s statement
Deputy Andrew Knee agreed to voluntarily provide a written statement to BCI and CCPO investigators. Deputy Knee stated that he had responded with Lt. Zehner during the initial Domestic Violence call to 3425 Mill Run Road. He had interviewed both Sara Knowlton and Connie Garber, had observed and photographed Connie Garber’s injuries, and filled out the domestic violence packet that both Sara Knowlton and Connie Garber signed. After completing the packets, Knee and Zehner left towards their station intending to complete the paperwork from the incident. While en route, they received a radio dispatch that Garber was back at the residence with a firearm. Knee recalled that dispatcher had stated that Brian told his wife that “police can do what they want when they get here but I will kill [Sara] when I get out.” After initially responding to 3425 Mill Run Road, Knee and the other deputies met and realized that Garber was across the street at 3400 Mill Run Road, where Garber’s parents lived. The deputies then proceeded to 3400 Mill Run Road.
Knee stated that the deputies proceeded through the open garage door, with Nicholson in the lead. Zehner told Knee to stick with Nicholson, who met Matthew Garber at the interior door. Matthew Garber told the deputies they could find Brian in the upstairs bedroom. Knee stated that Nicholson proceeded up the stairs first, followed by Knee, Zehner, and Frazier. Sgt. Nicholson and Deputy Knee first entered the bedroom where Garber was, and Knee could see that Garber was sitting on the bed with his back on the headboard. Knee recalled Garber talking first, stating “I’ve got a gun.”
Knee then pressed his body against the wall in the hallway against the left side of the doorframe leading into the room, with his firearm pointed at Garber. Nicholson was on his right in the door frame, and Frazier entered the room itself and took up a position directly facing Garber. Knee could see that Garber had a rectangular shaped object pressed against the underside of his shirt, which Knee thought did not look like his fingers. Knee could not see Garbers’ right hand. Knee recalled Nicholson stating words to the effect of “we all have families, it doesn’t need to go down like this.” Knee stated they tried to reason with Garber and get him to show his hands, but he would not. Knee stated that he heard a loud bang, which caused him to believe that a shot had been fired. That caused Knee to fire his weapon. After the incident, Knee inspected his magazine and determined that he fired three rounds. Knee indicated he entered the room to check on Deputy Frazier, who he could not see during the shooting. Deputy Frazier said he felt an impact on his Torso. Knee stated that Frazier then told him to clear the room and go downstairs until BCI could respond. Knee turned his weapon over to BCI investigators.
March 16, 2014: Deputy Raymond Frazier’s Statement
After having been advised of his rights, Deputy Raymond Frazier agreed to voluntarily provide a written statement and an interview to BCI and CCPO investigators. Like Sgt. Nicholson and Deputy Knee, Deputy Frazier initially responded to 3425 Mill Run Road and participated in the unsuccessful search for Brian Garber. Frazier then left the area and resumed patrol. A short time later, Frazier received the dispatch report indicating that Garber had returned to 3425 Mill Run Road and that Garber’s wife and mother were both indicating he had a gun. When he arrived in the vicinity of 3400 Mill Run Road, Frazier was advised by Lt. Zehner that Garber was on the top of the hill, which Zehner indicated was the residence at 3400 Mill Run Road. Frazier pulled into the driveway and made contact with Nicholson, Zehner,and Knee. Lt. Zehner instructed Knee to fall in behind Nicholson, who went into the garage and spoke with Matthew Garber. Frazier understood from the conversation that Matthew Garber let the deputies in and directed them upstairs to the last bedroom on the left.
Frazier indicated that Nicholson went up the stairs, followed by Knee and himself. Frazier advised Matthew Garber to stay downstairs until they made contact with Brian Garber. Frazier saw Nicholson stop at the doorway to the bedroom where they located Brian Garber. Nicholson entered the room and turned the light on. Frazier approached and could see that Garber was sitting upright on the bed, with his back towards but not touching the headboard of the bed. Frazier stated that as soon as he stepped into the bedroom, Garber made eye contact with him and said “I have a gun.” Frazier then drew his weapon. Frazier could see Garber wearing a dark T-Shirt, jeans, and white socks. Frazier could see Garber was holding a square-shaped object under his shirt that appeared to be the end of a Glock-style handgun. Frazier stated that Garber was told to show his hands and drop his weapon, and that Frazier told him to do so repeatedly. Frazier stated that Garber indicated that he would not drop his weapon and said they were going to have to kill him. Frazier said that Garber used his right hand to push his shirt out and said that he had a gun in there. Frazier could remember Sgt. Nicholson pleading with him to drop his weapon, telling Garber that they all had families and Garber’s family cared about him. Frazier estimated that the encounter lasted a minute or two. Frazier admitted that by entering the room farther than Nicholson or Knee, he placed himself within Garber’s line of fire and was totally exposed if Garber had a weapon.
Frazier stated that he saw Garber bring something out from under his shirt which he thought was a weapon. Frazier stated that as Garber extended his right hand to him, he heard a loud popping sound. Frazier also stated, however, that “I only fired my weapon after I observed Garber start to lift his shirt and presented what appeared to me to be the weapon he said he had.” Frazier explained that he “heard a popping sound which sounded to me like a firearm’s discharge.” Frazier also explained that “[w]hen Garber brought was a weapon from underneath his shirt and the pop went off, I honestly thought I was going to die.” Frazier stated he fired 8-10 rounds and saw Nicholson’s weapon malfunction. Frazier saw Garber slump
against the wall and then stopped shooting. Lt. Zehner came into the room and ordered them downstairs. Frazier thought something had struck his torso, which he believed might have been a gunshot. Frazier and Sgt. Nicholson inspected Frazier’s vest, and they could find no impacts.
March 16-17 and March 24, 2014: Sara Knowlton’s text message communications about the shooting and subsequent interview
Shortly after the incident, Sara Knowlton began texting numerous people, stating that “the cops shot Brian.” Sara told one person that Brian “aimed the gun at [Connie] and Matt so they ran.” Sara also told another person that Brian “pulled a gun on them. He said he was coming for me.” Sara told yet another person that Brian “has mental issues and aimed a gun at the police in his parent’s house. They shot him.” She also told another person that Brian “was coming” for her. She tells another person that Brian “pulled a gun on the cops.” Within 24 hours of the shooting, Sara also texted Brian’s employer to tell him that Brian was dead. Sara asked Brian’s employer if any money was still owed to Brian.
The next day, however, Sara then texted someone that the police “didn’t even talk to brian. They started shooting right away.” Sara also texted another number that “He has text on his phone about buying pills,” followed by a subsequent text to the same number, “Sent to me.” Sara also texted another number that “[t]he gun was meant for me. He meant to kill me last night.” She also texts yet another person that “The gun was meant for me. He had it hidden upstairs. He told his mom that he was getting rid of me.” She also texted someone that “I guess he hid the gun upstairs to kill me last night.”
On March 24, 2014, Sara gave an interview to BCI investigators. During the interview, Sara minimized the extent of her text message communications about the incident, indicating that she had only sent messages to her best friend, father, and Brian’s employer about the incident. BCI Investigators obtained a search warrant of her cellular telephone account, which revealed that she had sent far more text messages than she indicated during her statement. Knowlton also denied that Brian had strangled her during the initial domestic violence incident. Additionally, investigators asked Knowlton if she had been in any other romantic relationships with other men at the time, which Knowlton denied. Knowlton then paused the interview, and came back in and admitted that if the investigators question included sexual relationships, then she had been in such a relationship with another man at the time of her husband’s death. Finally, investigators asked Knowlton if she had any knowledge of Brian using illegal drugs. Knowlton denied any such knowledge, despite the fact that she texted him before his death asking him to buy four
hydrocodone pills. Knowlton also sent a text message after Brian Garber’s death expressing concern that his phone had evidence of “buying pills.”3
Autopsy of Brian Garber and Forensic analysis of bullets
Summit County Medical Examiner, Dr. Lisa Kohler performed the autopsy of Brian Garber’s body. She determined that his body showed 14 entrance wounds and six exit wounds. Eight bullets were recovered from Brian Garber’s body. Dr. Kohler indicated that multiple entrance wounds could have been caused by a single bullet exiting then reentering the body. Kohler indicated that Brian Garber had multiple fatal wounds, including a gunshot wounds to the heart, lung, and abdomen. Kohler indicated that it was difficult to obtain a sufficient sample of blood for toxicology screening due to the large amount of blood loss, but that toxicology results showed that Brian Garber had the chemical indicators of marijuana and morphine in his system. Kohler could not determine when Brian Garber had ingested these substances, or whether he was impaired at the time of his death. The toxicology results did not show evidence of any alcohol or klonopin. Kohler indicated, however, that a pharmaceutical dose of klonopin would fall below the threshold necessary to show up on a toxicology screen, and alcohol would not necessarily be present in Brian Garber’s blood if he had died without metabolizing the alcohol that he consumed immediately before dying. Forensic analysis showed that several of the bullets recovered in Garber’s body could be attributed to the handguns of both Knee and Frazier. It was impossible to forensically determine whether any of Nicholson’s shots had penetrated Brian Garber’s body due to the fact that multiple bullets were not recovered.
Legal Analysis of the Deputies Use of Deadly Force
The determination of whether the police used excessive force is governed by a federal constitutional standard set forth by the United States Supreme Court. The Court indicated that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigation stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated***. “A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-597, 109 S. Ct. 1378, 103 L.Ed.2d 628 (1989). The police use of deadly force when making an arrest is a seizure under the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d. 1 (1985). Plumhoff v. Ricdkard, Sup. Ct. No. 12-1117 (May 27, 2014).
3Sara Knowlton’s misleading statements to investigators did not alter the course of the investigation and did not ultimately hinder BCI’s ability to provide a thorough and accurate accounting of the facts and circumstances of Brian Garber’s death.
However, the police can only use deadly force in making an arrest where the police have probable cause to believe that the suspect poses a threat of death or serious bodily harm to the police or to public. In determining whether each deputy sheriff had probable cause to believe that Brian Garber posed a threat of death or great bodily harm to the police, the required perspective is that of the “reasonable officer on the scene,” standing in the officer’s shoes, perceiving what he then perceived and acting within the limits of his knowledge or information as it then existed. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d. 443 (1989).
What is a “reasonable” belief in light of the officer’s perceptions could also be a mistaken belief, and the fact that it turned out to be mistaken does not detract from its reasonableness when considered within the factual context and compressed time-frame of his decision to act. State v. White, 6th Dist. No. L-10-1194, 2013-Ohio-51, (Ohio Supreme Court jurisdiction granted, May 22, 2013) citing Saucier v. Katz, 533 U.S. 194, 205-206, 121 S.Ct. 2151, 150 L.Ed.2d. 272 (2001); “If an officer reasonably perceived a threat of attack by a suspect, apart from the actual attack, to which the officer may respond preemptively. If his perceptions were objectively reasonable, he incurs no criminal liability even if no weapon was seen, or the suspect was later found to be unarmed, or if what the officer mistook for a weapon was something innocuous.” White at ¶ 65. (Citations omitted).
Courts are generally hesitant to second-guess the decisions made by police officers in the field. Vaughan v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003). “A court must avoid substituting its personal notions of proper police procedure for the instantaneous decision made by the officer at the scene.” Gammon v. Blakely (Dec. 4, 1997), unreported 8th Dist. No. 72175. This constitutional standard applies to the criminal prosecution of police officers that allegedly used excessive force when arresting a suspect. State v. White, supra; United States v. Reese, 2 F.3d 870 (9th Cir. 1993); State v. Mantelli, 42 P.3d 272, 131 N.M. 692, (N.M. App. 2002). United States v. Brugman, 364 F.3d 613 (5th Cir. 2004) [Border patrol agent sentenced to 27 months imprisonment for beating illegal immigrant after arrest.]
The legal review required is an analysis from all the deputies’ perspectives at the time the split second decision to use deadly force was made. All three deputies had been at 3425 Mill Run Road approximately 45 minutes before the shooting. At the initial domestic violence incident, all three deputies learned that Brian Garber had recently kicked in the back door to his house, struck his mother, Connie Garber, with enough force to leave a large red mark on her chest. The deputies also learned that Brian Garber had pushed and strangled his wife, Sara Knowlton. Based on this incident, the deputies knew that Brian Garber was not only prone to violence, but was also likely to be under the influence of a drug that made him, in Sara Knowlton’s description, “mean.”
When dispatchers communicated with the deputies to return to Mill Run Road approximately 30 minutes later, the information given to them at that point was that Brian Garber had shown a gun to his parents and had texted his wife (Sara Knowlton) that he had a gun. Garber was texting that if he went to jail when he got out he would kill his wife.
Deputies also had their prior knowledge that they obtained during the initial Domestic Violence call about Brian Garber’s violent behavior.
At that point before they even encountered Brian Garber in his bedroom, all of the deputies on scene had an objectively reasonable belief that they were about to encounter a violent individual who was likely high on drugs, who had previously assaulted his mother and wife, and who now had armed himself with a gun. These undisputed facts formed the basis for the deputies’ belief that they were about to encounter an armed suspect at 3400 Mill Run Road. Once they arrived at 3400 Mill Run Road (Connie and Matt Garber’s home), Matthew Garber met the officers at the door and led them to the stairs leading to where they could find his son.
The deputies approached the room single file with Sgt. Nicholson in the lead, followed by Deputies Frazier and Knee. Lieutenant Zehner stopped at the landing of the stairs. Lexington Police Captain Weaver and Lexington Patrol Officer Beasley were at the bottom of the stairs during the incident.
As Sgt. Nicholson approached the room, the lights were off and he could see Brian Garber sitting upright on the bed in front of the headboard. All three deputies described Brian Garber as agitated. Sgt. Nicholson described Brian Garber’s eyes being “as wide as saucers.” After turning on the light, Sgt. Nicholson asked Brian to show his hands. At that point, Sgt. Nicholson took position to the right of the doorway with Deputy Knee on the left side of the doorway. Deputy Frazier stepped past both Sgt. Nicholson and Deputy Knee and took a position inside the room directly facing Brian Garber.
Brian Garber immediately stated he had a gun and all three deputies saw a rectangular-shaped object under his shirt. Brian Garber then made movements with the object, which all three deputies believed to have been a Glock-style handgun due to the size and shape of the object. Sgt. Nicholson asked Brian Garber to show his hands multiple times and Brian Garber’s response each time was “no.” Sgt. Nicholson pleaded with Brian Garber telling him “don’t do this, we all have families here”, and stated that “we are here to help” and would take him to the hospital.
Brian Garber’s response was to say “fuck them,” to keep his hands hidden from view, and kept pointing the object at the deputies. Brian Garber then stated “no one can help” and said “shoot me”, “kill me.” Sergeant Nicholson said that isn’t going to happen and again asked Brian Garber to drop what the deputies believed was a gun.
Captain Troy Weaver of the Lexington Police Department was at the bottom of the stairs and heard a voice he believed was Sgt. Nicholson say “we’ve all got families don’t do it.” Additionally, Officer Michael Beasley of the Lexington Police Department also heard the deputies attempting to talk Garber into surrendering and heard “you don’t have to do this” and “we’ve all got families.” Richland County Sheriff’s Lieutenant Donald Zehner also heard commands of his deputies to “put down the gun” multiple times. The interaction between Brian Garber and deputies lasted approximately 95 seconds. Dispatch records demonstrate that Lt. Zehner requested to hold radio traffic at 20:22:20 (or 8:22:22 p.m.)
due to the ongoing emergency. Then, at 20:23:55 (or 8:23:55 p.m.), Lt. Zehner reported shots fired.
A subsequent search of the bedroom by BCI indicated that Brian Garber was not armed, but had a remote control to a toy car which was found next to his body. Photographs taken immediately after the incident show the remote control unit on the bed. BCI Investigators compared the shape of the remote control found next to Garber’s body that to a real glock handgun. When both objects were observed underneath the outline of clothing, the remote control and the handgun appeared to be nearly identical. The rectangular shape of the remote is what all the deputies referenced seeing before firing their guns.
During their encounter with Brian Garber, all three deputies had objective facts that would lead any reasonable person to believe that Brian Garber had a gun and intended to use it. Deputy Frazier and Sgt. Nicholson observed Brian Garber make a sudden movement with the object he was holding. At, the same time, they stated they heard a loud bang, which Sgt. Nicholson believed had come from Brian Garber’s direction. At that point, all three deputies returned fire, killing Brian Garber. All three deputies believed Garber had shot at them. It is absolutely clear that the deputies who discharged their weapons had sufficient facts, especially when looking at the totality of the events, to form a reasonable and objective belief that Brian Garber had a gun which he intended to use, and that their lives were in danger.
Based upon the evidence uncovered during the investigation, there is also a reasonable possibility that Deputy Frazier fired his gun first in response to a sudden movement by Brian Garber with the object hidden under his shirt. Deputy Frazier unwisely put himself directly in the in the line of fire with no tactical cover. In his statement, he described seeing Brian Garber’s sudden movement at the same time he heard the loud bang. Since subsequent investigation revealed that Garber had no real weapon (and could not have fired a shot at the officers) the loud bang can only reasonably be explained by one of the officers firing in response to Brian Garber’s sudden movement. BCI Investigators examined Brian Garber’s iPhone, and could find no audio files which would account for the loud bang that the deputies described. DNA and fingerprint analysis of the remote control was inconclusive, but did not rule out Brian Garber having handled the object. Nevertheless, the State believes that Frazier’s discharge of his weapon was objectively reasonable because he perceived an imminent threat to his life and the lives of his fellow officer when Brian Garber made a sudden movement with an object that Frazier thought was a gun.
Brian Garber’s statements and actions prior to the encounter with the deputies, as well as his refusal to follow the police commands to show his hands and his brandishing of an object that he claimed was a gun, demonstrate a significant likelihood that Brian Garber intended to provoke the deputies’ use of deadly force.
Matthew Garber’s initial statement after the shooting also sheds light on his son’s actions and corroborates the deputies’ reasonable belief that Brian Garber had a gun.
Matthew Garber was convinced that his son was not poking a finger under his shirt. Even to Matthew Garber’s untrained eye, the rectangular object that both he and the deputies saw underneath Brian Garber’s shirt looked like the outline of a gun.
With the benefit of hindsight, it is possible that this incident could have been handled differently. Nevertheless, the law provides a clear standard to analyze police officers’ use of deadly force (… “a reasonable officer on the scene, standing in the officer’s shoes, perceiving what he perceived and acting within the limits of his knowledge or information as it then existed”). Evidence firmly demonstrates that these deputies had an objectively reasonable belief, based on facts known to them at that time, that Brian Garber had a gun and was an imminent threat to the lives of each deputy.
Therefore, it is the opinion of the State that the March 16, 2014 shooting of Brian Garber by Sgt. James Nicholson, Deputy Andrew Knee, and Deputy Raymond Frazier was justified and that no criminal liability exists regarding the three officers role in the death of Brian Garber. This tragic incident was unfortunate and the State is sensitive to its impact on the Garber family. Nevertheless, a critical examination of the facts and circumstances leading to Brian Garber’s death reveals that the deputies who responded to 3400 Mill Run Road on March 16, 2014 acted within the bounds of the law.
Timothy J. McGinty Cuyahoga County Prosecuting Attorney
Matthew E. Meyer Assistant Prosecuting Attorney
JamesA. Gutierrez Assistant Prosecuting Attorney