United States District Court, E.D. Michigan, Southern Division
JENNIFER PELLOW as Personal Representative of the Estate of NATHAN WESLEY PELLOW, Plaintiff,
KEVIN BARNHILL, SHANE McKIBBEN, ROBERT ROY, JOHN ADAMS, and DALE VAN HORN, Jointly and Severally, Defendants.
OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DKT. 31)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
an excessive force case brought pursuant to 42 U.S.C. §
1983. Plaintiff Jennifer Pellow, as Personal Representative
of the Estate of Nathan Wesley Pellow, alleges that Warren
Police Officer Shane McKibben, Defendant, used excessive
force resulting in the death of Nathan Pellow while fellow
Warren Police Officers, Kevin Barnhill, Robert Roy, John
Adams, and Dale Van Horn, also De- fendants, stood by and
looked on. Defendants have moved for summary judgment, and
Plaintiff opposes. For the reasons outlined below,
Defendants' motion for summary judgment with respect to
Plaintiff's Fourteenth Amendment claim (Count II) is
DENIED; Defendant McKibben's motion with respect to
Plaintiff's Fourth Amendment claim (Count I) against him
is DENIED; and Defendants Barnhill, Roy, Adams, and Van
Horn's motion with respect to Plaintiff's Fourth
Amendment claim (Count I) against them is DENIED WITHOUT
The lengthy factual background and procedural history of this
case will be summarized below in separate subsections.
August 30, 2013, Pellow crashed his vehicle into a trailer
home located at 25509 Doncea Drive in Warren, Michigan. Dkt.
1, Pg. ID 4. Pellow was injured in the accident. Dkt. 1, Pg.
ID 4. Defendant Barnhill, a Warren Police Department
(“WPD”) officer, was dispatched to the scene.
Dkt. 1, Pg. ID 4. Barnhill's squad car contained a
“dashcam” video recorder. Dkt. 31-3. Upon
arrival, Barn-hill exited his squad car and encountered
Pellow. Dkt. 31-3 at 11:14:29-11:15:59. Pellow attempted to
punch Barnhill and walked away. Dkt. 31-3 at
11:14:29-11:15:59. Barnhill then requested assistance from
WPD Officer McKibben. Dkt. 1, Pg. ID 4.
one minute later, Defendant McKibben arrived in his patrol
car. Dkt. 31-4 at 11:17:05. His patrol car was also equipped
with a dashcam video recorder. Dkt. 31-4. As recorded on
McKibben's dashcam video, Barnhill and McKibben
repeatedly told Pellow to get down on the ground, but Pellow
refused to comply and fled. Dkt. 31-4 at 11:17:05-11:20:24.
Barnhill and McKibben then chased Pellow. Dkt. 31-4 at
these events unfolded, five Warren Fire Department
firefighters, some driving a fire truck and others driving an
ambulance, arrived to help secure Pellow. Dkt. 31-6, Pg. ID
189-90, 194; Dkt. 31-7, Pg. ID 200-02; Dkt. 31-8, Pg. ID
210-11; Dkt. 31-9, Pg. ID 219-20; Dkt. 31-10, Pg. ID 227-28;
Dkt. 31-4 at 11:20:30. Pellow dodged officers and
firefighters alike before darting up a trailer-home's
steps in an apparent attempt to enter the trailer. Dkt. 31-6,
Pg. ID 189. During the scramble, Pellow punched Firefighter
Brian Jacobs in the face. Dkt. 31-6, Pg. ID 191-92; Dkt.
31-7, Pg. ID 202. Jacobs then tackled Pellow off the steps
and onto the ground. Dkt. 31-6, Pg. ID 191-92; Dkt. 31-8, Pg.
ID 210; Dkt. 31-4 at 11:20:30-11:24:17. Once Pellow was on
the ground, McKibben and Barnhill, along with all five
firefighters, attempted to handcuff Pel-low. Dkt. 31-6, Pg.
ID 189-90, 194; Dkt. 31-7, Pg. ID 201-02, 204; Dkt. 31-8, Pg.
ID 210-11; Dkt. 31-9, Pg. ID 220; Dkt. 31-10, Pg. ID 229;
Dkt. 31-4 at 11:20:30-11:24:17.
point during the melee, the WPD dispatched more officers to
the scene. Dkt. 31-11, Pg. ID 238. Several officers responded
including Sgt. Arthur Gill,  along with Defendants Roy, Adams,
and Van Horn. They arrived on the scene as McKibben,
Barnhill, and the five firefighters struggled to handcuff
Pellow. Dkt. 31-2, Pg. ID 174-75; Dkt. 31-11, Pg. ID 238-39.
A dashcam video recorder was mounted in Gill's patrol
car. Dkt. 31-5. Eventually, McKibben, Barnhill, and the
firefighters were able to handcuff Pel-low's wrists and
shackle his ankles as he lay face-down on the ground. Dkt.
31-6, Pg. ID 189-90; Dkt. 31-7, Pg. ID 200-03; Dkt. 31-8, Pg.
ID 210-11; Dkt. 31-9, Pg. ID 219-21; Dkt. 31-10, Pg. ID
227-29; Dkt. 31-11, Pg. ID 239.
parties present competing narratives of what happened after
Pellow was handcuffed and under control. Plaintiff's
narrative is based on Gill's testimony, while
Defendants' narrative is based on the firefighters'
testimony. As noted in more detail below, Defendants do not
rely on their own testimony because during their
depositions-with the exception of Adams, who appears not to
have been deposed-they invoked their Fifth Amendment right
narrative relies on Gill's testimony. Gill states the
■ After Pellow was handcuffed and under control, the
firefighters and all the officers other than McKibben left
the area and returned to the ambulance and fire truck
approximately 100 to 150 feet away. Dkt. 3111, Pg. ID 239.
■ At this point, Pellow was fully restrained, alive,
breathing, and “did not appear to be much of a
threat.” Dkt. 31-11, Pg. ID 239, 250. Pellow was,
however, red in the face. Dkt. 31-11, Pg. ID 239, 250.
■ Everyone but McKibben, including the firefighters and
Defendants Barnhill, Roy, Adams, and Van Horn, began to walk
away. Dkt. 31-11, Pg. ID 239.
■ Gill then turned his back from Pellow and McKibben
for “just a couple seconds” and walked fifteen to
twenty feet away from Pellow and McKibben. Dkt. 31-11, Pg. ID
■ An unknown woman approached Gill. Dkt. 31-11, Pg. ID
■ Before they could have any verbal interaction, Gill
noticed the woman looking over his shoulder. Dkt. 3111, Pg.
■ Gill turned to look over his shoulder and saw
McKibben stand and “bounce” on Pellow's back
for “only a second or two.” Dkt. 31-11, Pg. ID
239, 247, 250.
■ Gill immediately ordered McKibben to get off
Pellow's back, McKibben promptly complied, and the
command was recorded on Gill's body-microphone. ...