Appeals panel: Officers in Green case can be sued

A federal appeals court Tuesday sided with the estate of a man shot dead by two plainclothes Columbus police officers in June 2016, reversing an earlier court decision in the officers’ favor.

A three-judge panel of the 6th U.S. Circuit Court of Appeals determined that officers Zachary Rosen and Jason Bare were not immune from civil liability because they continued firing shots after Henry Green was no longer a threat.

Green, 23, was shot eight times during the June 2016 incident in North Linden, dying as a result of a gunshot wound to the chest, according to court document.

Rosen and Bare were on patrol in the area as part of the city's anti-gang Summer Strike Force. The officers said Green had pulled a firearm on them, and they had fired after Green refused orders to drop his weapon. Green fired six shots, Bare fired seven and Rosen, 15.

A Franklin County grand jury determined in 2017 that there was no wrongdoing by the officers and did not indict them in the shooting.

Adrienne Hood, Green’s mother and administrator of his estate, sued in federal court, alleging wrongful death and the use of unreasonable force against her son.

U.S. District Court Judge George Smith ruled last year in favor of the officers and others named in the suit, writing that "The court concludes that Officers Rosen and Bare's use of deadly force on Green was objectively reasonable and does not amount to excessive force in violation of the Fourth Amendment.

"The facts as told by both parties and confirmed with the video/audio evidence, establish that the officers believed they were approaching an armed and dangerous suspect who had just threatened them with a gun."

The 6th District panel on Tuesday affirmed summary judgments in favor of the city of Columbus, former Columbus Police Chief Kim Jacobs and two other officers named in Hood’s lawsuit.

But the judges adopted a “segmented analysis” of the the shooting incident in the case against Rosen and Bare, writing: “It appears that there were gaps between the officers’ shots, and they had time to reassess Green’s threat. … The experts from both parties indicated that some of Green’s gunshot wounds were sustained while he was in a ‘lowered’ position, likely when he was down on the ground or in the process of going down … a jury could reasonably conclude that the officers’ use of force in this context was unreasonable.”

Tuesday’s decisions remanded the case against Rosen and Bare back to U.S. District Court in Columbus for further consideration.

Defendants in the case also could seek a review of the case by the full appeals court.

Columbus City Attorney Zach Klein said in a statement that “the city attorney’s office takes these cases very seriously, with truth and the pursuit of justice as our primary goals. We are still reviewing this decision in its entirety to decide the appropriate course of action based on the court’s ruling.”

One member of the appeals court panel, appeals Judge Ralph B. Guy Jr., dissented, in part, to the final decision, writing that he would affirm the district court’s judgment.

“The exchange of gunfire was brief, and the officers fired all of their rounds within a period of approximately five seconds. I cannot agree that the officers had time ‘to stop and reassess the threat level’ before the last shots were fired,” he wrote. “In my view, no reasonable juror could find there was a point at which an objectively reasonable officer would have known that Green was no longer a threat.” mkovac@dispatch.com @Ohiocapitalblog