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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DISTRICT

JENNIFER PELLOW as Personal

Representative of the Estate of Case No: 15-11765

NATHAN WESLEY PELLOW,

 Hon. Terrance G. Berg 

Plaintiff, Magistrate R. Steven Whalen

v.

 

KEVIN BARNHILL, SHANE MCKIBBEN,

ARTHUR L. GILL, ROBERT ROY, 

JOHN ADAMS, and DALE VAN HORN,

Jointly and Severally, 

 Defendants.

BEN M. GONEK (P43716) JOHN J. GILLOOLY (P41948) 

Law Offices of Ben Gonek, PLLC Garan Lucow Miller, P.C.

Attorneys for Plaintiff Attorneys for Defendants Barnhill,

615 Griswold Street, Suite 1116 McKibben, Roy, Adams & VanHorn

Detroit, MI 48226 1155 Brewery Park Blvd., Ste. 200

(313) 963-3377 Detroit, MI 48207 

ben@goneklaw.com (313) 446-5501

 jgillooly@garanlucow.com

JOEL B. SKLAR (P38338) 

Law Offices of Joel B. Sklar 

Co-counsel for Plaintiff 

615 Griswold Street, Suite 1116 

Detroit, MI 48226 

(313) 963-4529 

joel@joelbsklarlaw.com 

REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR 

SUMMARY JUDGMENT

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Plaintiff’s response concedes that the force used by the officers to secure 

Nathan Pellow in handcuffs was objectively reasonable and that the only use of 

force at issue in this case is Officer McKibben’s alleged standing/bouncing on 

Nathan Pellow’s back. (Response, page 17) In support of her contention that she 

has sustained her burden of presenting a genuine issue of material fact as to 

whether Officer McKibben in fact stood on Mr. Pellow’s back and bounced, 

Plaintiff relies primarily on three things: (1) the fact that the Defendant Officers 

asserted their Fifth Amendment right against self incrimination; (2) the McKibben 

audio goes silent for 45 seconds at a time which, according to Plaintiff, 

“corresponds with the exact period when Gill contends he told McKibben to get off 

Pellow’s back”; and (3) Art Gill’s testimony/affidavit which insinuate that 

evidence was tampered and/or fabricated. Plaintiff’s argument is simply factually 

inaccurate and legally insufficient to avoid the Defendant Officers’ entitlement to 

qualified immunity and summary judgment.

Officers’ Assertion of the Fifth Amendment

Plaintiff’s vast conspiracy/cover-up theory focuses primarily on the fact that 

the Defendant Officers asserted their Fifth Amendment right against self 

incrimination – a fact which Plaintiff asserts entitles her to a negative inference or 

presumption of wrongdoing by the Officers. What is glaringly and conveniently 

absent from Plaintiff’s response is the acknowledgement that she herself created 

the need for the Officers to exercise their right by warning defense counsel (the 

Case 4:15-cv-11765-TGB-RSW ECF No. 36, PageID.425 Filed 01/23/17 Page 2 of 8
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day before the officers were to be deposed) that Plaintiff/Plaintiff’s counsel would 

be filing a complaint with the Department of Justice and/or the FBI. This potential 

for criminal prosecution was falsely teed-up by Plaintiff in what can only be 

viewed as procedural gamesmanship in light of the fact that, despite her threat, 

Plaintiff never actually followed through and pursued her threatened course of 

action. This has left the Officers indefinitely under threat of investigation while 

giving Plaintiff an argument to use in hopes of avoiding summary judgment. 

While Plaintiff argues that the Defendant Officers are improperly using the Fifth 

Amendment as both a sword and a shield, the reality is that it is Plaintiff who is 

improperly fencing. 

Defendants sustained their burden in support of their motion and assertion of 

qualified immunity by offering credible admissible evidence establishing that no 

reasonable juror could conclude that Officer McKibben stood and bounced on Mr. 

Pellow’s back. In response, Plaintiff seeks to capitalize upon her unrealized threat 

of criminal prosecution by relying upon a negative inference of wrongdoing by the 

Officers as a result of having done exactly what they had to do (and what Plaintiff 

no doubt hoped they would do) to protect themselves from Plaintiff’s bogus threat 

of criminal prosecution. Plaintiff cannot derive any evidentiary benefit from her 

procedural fencing.1

 

1

In the event that summary judgment is not granted and the matter proceeds to a 

trial, Defendants anticipate seeking a stay of this action in light of having asserted 

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The silent 45 seconds on McKibben’s audio

Plaintiff repeatedly states that the 45 seconds of silence on McKibben’s 

audio (from 11:22:29 to 11:23:14) corresponds with “the exact period when Gill 

contends he told McKibben to get off Pellow’s back.” Plaintiff offers no factual 

support for this contention and it is simply wrong. Gill did not testify as to what 

time he allegedly observed McKibben standing/bouncing. But he did testify that 

this standing/bouncing did not occur until after Pellow had been handcuffed and 

“everyone . . . outside of Mr. – Officer McKibben” – had started walking away. 

(Gill, pages 14-15). However, a review of McKibben’s audio evidences that the 

officers/firefighters were still struggling with Pellow and attempting to handcuff 

him for at least a minute after the audio returns. It is simply untenable for Plaintiff 

to contend that the audio silence coincides at all – let alone exactly – with Gill’s 

story.

Gill’s audio was altered

Without offering any evidentiary support – expert or otherwise - Plaintiff 

claims that Gill’s audio was tampered.2 In support, Plaintiff relies upon Gill’s 

affidavit which states that the video does not show his lights or siren activated. 

 

their Fifth Amendment rights and the fact that Plaintiff’s threatened criminal 

prosecution has not been resolved (indeed, even commenced).

2 Should this matter proceed to trial, Defendants anticipate filing a motion in limine 

to exclude Gill’s testimony that the audio and/or VisionHawk system were 

tampered with or altered as Gill is not an expert in this area nor has Plaintiff 

identified an expert witness capable of providing credible testimony on this issue.

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This, however, is blatantly inaccurate. A review of the Gill video (S-1) evidences 

that recording starts at 11:17:41; his lights are activated at 11:18:05; and his siren 

is activated at 11:18:08. While the video captures the activation of every other 

indicator on the VisionHawk viewer – lights, siren, brakes – the transmitter button 

is never activated. Plaintiff suggests that the transmitter button is not activated –

not because audio was never recorded – but because audio must somehow have 

been “scrubbed” although Plaintiff offers no evidence of how that could happen. 

Indeed, while Art Gill claims to have been in charge of the Technical Services 

Division, he has “no idea” how the audio could have been stripped.3Plaintiff’s 

theory is unsupported speculation refuted by the record evidence.

Bystander Liability

In an attempt to avoid dismissal of her claims against all other officers other 

than Officer McKibben, Plaintiff argues that the “record is not fully developed” as 

to whether the “Bystander Defendants”4 were in a position to observe and prevent 

 

3

In fact, if Plaintiff’s/Art Gill’s theory of tampering is even plausible, one would 

have to conclude that, not only was the audio scrubbed, but the VisionHawk 

viewer was also somehow altered (although Gill, despite his TSD experience, does 

not have any idea how that could happen). Unless the VideoHawk viewer were 

also altered, the transmitter button would still activate, but there would be no sound 

available. The Gill video clearly shows that the transmitter button was never 

activated – i.e., the microphone was never turned on.

4 Curiously, Plaintiff does not refer to Officer Barnhill as a “Bystander Defendant” 

despite having conceded that Officer McKibben was the only officer who actually 

allegedly used force and despite the fact that Gill’s testimony puts Officer Barnhill

as having walked away at the time of McKibben’s alleged actions. (Gill, pages 14-

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Officer McKibben’s alleged standing/bouncing. However, Plaintiff’s sole 

evidence in support of the alleged incident is Art Gill – and according to Art Gill, 

“everyone . . .outside of . . . Officer McKibben” had started to walk away at the 

time Gill allegedly turned to see Officer McKibben’s supposed actions (Gill, pages 

14-15). If Art Gill is to be believed that the incident happened at all, then Art Gill 

must be believed as establishing that no one other than Gill was in a position to 

observe the incident. 

Moreover, even assuming there was a question as to whether any of the 

other officers were in a position to observe McKibben’s alleged act, there is no 

dispute that this alleged act was an unanticipated, discrete act which lasted a mere 

“second or two” (Gill, page 15) and, therefore, none of the other officers can be 

held liable under 42 U.S.C. § 1983 for not intervening. See Wells v. City of 

Dearborn Heights, 538 Fed. App’x. 631, 639-640 (6th Cir. 2013), citing Ontha v. 

Rgutherford County, 222 Fed. Appx. 498, 506 (6th Cir. Tenn. 2007), and rejecting 

a “failure to intervene” claim where the alleged uses of force were rapid, discrete 

incidents which did not afford the defendant officer sufficient opportunity to 

intervene.

Plaintiff’s reliance upon Kent v. Oakland County, 810 F.3d 384 (6th Cir. 

2016) is misplaced as it is materially distinguishable. The officers in Kent 

 

15). There is no factual basis for characterizing Officer Barnhill as anything other 

than a bystander.

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interacted and spoke with the plaintiff over a period of time while the events 

unfolded and one officer gave a verbal warning prior to deploying the taser. Id. at 

387-388. In addition, the record supported the inference that the bystander officer 

was physically in a position to handcuff the plaintiff and obviate the need for the 

taser. Id. Under these facts, the Sixth Circuit concluded that the bystander officer 

had both an opportunity and the means to prevent the other officer from deploying 

the taser. In contrast, according to Gill’s testimony, McKibben’s alleged use of 

force was unexpected, not prededed by any warning, and occurred in a splitsecond. In addition, according to Gill’s testimony, none of the other officers were 

physically in a position to prevent McKibben’s alleged act. Neither Kent, nor any 

other Sixth Circuit authority, put the Defendant Officers on notice that their alleged 

inaction under the circumstances presented was violative of the Fourth 

Amendment and the officers are entitled to qualified immunity. 

WHEREFORE, Defendants respectfully request that this Honorable Court 

grant them summary judgment of Plaintiff’s complaint. 

Respectfully submitted:

GARAN LUCOW MILLER, P.C. 

s/ John J. Gillooly

John J. Gillooly P41948

Attorney for Defendants

1155 Brewery Park Blvd., Suite 200

Detroit, MI 48207

313.446.5501

jgillooly@garanlucow.com

Dated: January 23, 2017

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

CERTIFICATE OF SERVICE

I hereby certify that on January 23, 2017, my assistant, Deborah Brossoit, 

electronically filed the foregoing document with the Clerk of the Court using the 

ECF system which will send notification of such filing to the following: 

Ben M. Gonek 

ben@goneklaw.com,lisa@goneklaw.com

and I hereby certify that on January 23, 2017, my assistant, Deborah Brossoit, 

mailed by United States Postal Service the foregoing document to the following 

non-ECF participants, with full legal postage prepaid thereon and deposited in the 

United States mail:

NA

s/John J. Gillooly 

GARAN LUCOW MILLER, P.C.

1155 Brewery Park Blvd., Ste 200

Detroit, MI 48207

313.446.5501

jgillooly@garanlucow.com

P41948

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