UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ASHLEY ZURESS, 

 Plaintiff, 

v. 

CITY OF NEWARK, et al., 

 Defendants. 

Case No. 2:17-cv-866 

JUDGE GEORGE C. SMITH 

Magistrate Judge Vascura 

OPINION AND ORDER 

This matter is before the Court upon Defendants’ Motion for Summary Judgment (the 

“Motion”) (Doc. 21). The Motion is fully briefed and ripe for disposition. For the following 

reasons, the Motion is GRANTED. 

I. BACKGROUND 

On March 2, 2016, Defendant Officer David Burris was on patrol and was accompanied 

by his canine partner, Ike, and Officer April Hunt, who was in field training. (Doc 21-1, Ex. A, 

Dep. of David Burris at PAGEID #128). At the time, the residence located at 48 Willowood Road, 

in which Brandy Grooms resides, was a known drug house. (Id. at PAGEID #121; Doc. 21-1, Ex. 

E, Initial Incident Report at PAGEID #208). Officer Burris had learned from a confidential 

informant (“CI”) that there was drug activity at the home, which included cars frequently coming 

and going at odd hours of the night and individuals carrying items out of the house; conduct 

suggestive of illegal activity. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #121, 123). Jeff 

Grooms (“Grooms”), Brandy’s brother, was under surveillance as he had an outstanding warrant 
2 

for unpaid child support. (Id. at PAGEID #124). Officer Burris was generally familiar with 

Grooms because Grooms had been in and out of jail several times. (Id.). Officer Burris learned 

from his CI that Grooms had been staying at the Willowood home, so the house was also being 

monitored in an effort to detain Grooms on the outstanding warrant. (Id. at PAGEID #125). 

Additionally, Grooms’ sister had informed Officer Burris that Grooms was a drug addict, and 

Officer Burris had received information from the police department that Grooms was connected 

to an armed robbery of a gas station. (Id. at PAGEID #124–27). 

While on patrol on March 2, 2016 Officer Burris’ CI informed Burris that a man driving a 

tan Jeep Renegade arrived at the Willowood residence. (Id. at PAGEID #128). Upon receiving 

this information, Officer Burris and Officer Hunt went to the residence for surveillance purposes. 

(Id.). Officer Burris saw the Jeep leave the residence and began following the vehicle. (Id. at 

PAGEID #129). Shortly thereafter, Officers Burris and Hunt turned on their emergency lights to 

initiate a traffic stop for failure to properly signal a turn. (Id.). After the officers turned the 

emergency lights on, the Jeep slowed down but passed several locations where it could have 

stopped. (Id. at PAGEID #130). Officer Burris believed this may have indicated the occupant(s) 

of the car were hiding or ingesting items, such as drugs. (Id.). As soon as the Jeep stopped, 

Grooms jumped from the vehicle and fled on foot. (Id.; Video #1)1. Officer Burris jumped out of 

the cruiser and deployed Ike from the car; by the time Officer Burris was out of the car and Ike 

had joined Officer Burris, Grooms was out of sight. (Doc 21-1, Ex. A, Dep. of David Burris at 

PAGEID #130; Video #1). Officer Burris and Ike did not chase Grooms because they lacked the 

 

1

 In support of Defendants’ Motion, Defendants manually submitted four videos as Exhibit G to their Motion. (Doc. 

21, Ex. G; Doc. 24, Notice of Manual Filing) In support of Plaintiff’s Response, Plaintiff manually submitted four 

videos. (Doc. 29, Notice of Manual in Opposition). The videos submitted by Defendants and Plaintiff are the same 

videos. Video #1 shows video footage from Officer Burris’ and Hunt’s police cruiser. Video #2 shows footage 

from Officer Purtee’s police cruiser. Video #3 shows footage from Officer Henry’s police cruiser. Video #4 shows 

footage captured by a bystander. The Court will refer to these exhibits as Videos #1-4. 
3 

proper tracking equipment at the time. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #130–

31). During the time Grooms was fleeing, Officer Hunt called for backup. (Id. at PAGEID #130). 

At this moment, the Jeep, which had been stopped for a total of 19 seconds, began pulling 

away from the police cruiser by an unknown driver (until this moment Officer Burris did not know 

there were multiple occupants in the car). (Id. at PAGEID #131; Video #1). Officer Burris and 

Ike returned to the police cruiser, and Officer Hunt, driving, pursued the Jeep. (Doc 21-1, Ex. A, 

Dep. of David Burris at PAGEID #131).2

Officers Burris and Hunt followed the Jeep’s path and turned onto another street upon 

seeing the flashing lights of another police cruiser. (Id. at PAGEID #135). Officer Jon Purtee had 

intercepted the Jeep, pulled the Jeep over, and assumed a shooting stance behind the driver’s side 

door of his cruiser. (Id.). Officer Purtee commanded Zuress to exit the vehicle, and she did so 

facing the officers. (Id.; Video #2). Officers Burris and Hunt exited their cruiser and assumed 

covered positions behind Officer Purtee’s cruiser. (Doc 21-1, Ex. A, Dep. of David Burris at 

PAGEID #136). For their safety, Officer Purtee commanded Zuress to turn around so she was not 

facing them. (Id. at PAGEID #135–36). Zuress was non-compliant with these orders; Officer 

Purtee ordered Zuress to “face away” five times before she faced away from the officers. (Video 

#2). After initially turning around, Zuress continued being non-complaint by twisting, turning 

around, and looking back at the officers. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID 

#136; Video #2). Zuress was arguing with Officer Purtee, waving her hands around, and at one 

point reached down towards her waistband to adjust her shirt. (Doc 21-1, Ex. A, Dep. of David 

Burris at PAGEID #137; Video #2). At this point, Officer Burris instructed Officer Hunt to take 

 

2

 Note to Draft: Kurt, at this point, I think it may be best to start citing to the police video that we have instead of the 

deposition of the officer. Would you agree? If so, how do you recommend citing video? 
4 

his spot behind Officer Purtee’s passenger side cruiser door, and Officer Burris retrieved Ike from 

his own cruiser. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #136). 

Once Officer Burris retrieved Ike from the car, Officer Purtee warned Zuress that the dog 

would be released if she did not cooperate. (Id. at PAGEID #147; Video #4). Roughly 1-2 seconds 

after warning Zuress, Officer Burris released Ike.3 (Id. at PAGEID #137; Video #4). Officer 

Burris, after releasing Ike, advanced upon Zuress directly behind Ike. (Id. at PAGEID #141–42; 

Video #4). Ike, as he is trained, first jumped into the car to look for additional suspects. (Video 

#4). When Officer Burris arrived at Zuress he grabbed ahold of one of Zuress’ arms. (Doc 21-

1, Ex. A, Dep. of David Burris at PAGEID #142; Video #4). Almost simultaneously with Officer 

Burris grabbing Zuress’ arm, Ike exited the vehicle and assisted in the apprehension of Zuress by 

biting and holding Zuress’ arm. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #137; Video 

#4). During this sequence, Zuress was taken to the ground. (Doc 21-1, Ex. A, Dep. of David 

Burris at PAGEID #143; Video #4). 

Once Zuress was on the ground, Officer Hunt and Officer Purtee advanced from their 

covered positions, and on instruction from Officer Burris, first checked the Jeep for additional 

passengers. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). After it was 

clear the Jeep contained no additional passengers, Officer Purtee began to assist Officer Burris 

with controlling Zuress. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). 

Once Officer Purtee was in position to help control Zuress, Officer Burris moved to Ike to release 

Ike’s bite and hold from Zuress’ arm. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; 

Video #4). Once Ike released his bite and hold, Officer Burris moved Ike away from Zuress and 

 

3

 The exact time between warning and release of Ike is hard to decipher from the video footage. The scene was 

filled with Zuress arguing, Officer Purtee shouting commands, and Ike barking. Further, Video #4 has the clearest 

audio of the videos, and unfortunately, the video focuses on Zuress; Officer Burris is off screen when Ike is released. 

This makes it hard to tell exactly when Officer Burris released Ike from his grip. 
5 

the other officers. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). From 

the moment Officer Burris and Ike approached Zuress to the moment Ike released Zuress, roughly 

44 seconds had elapsed. (Video #4). From the moment Ike first bit Zuress until the moment Ike 

released his bite, roughly 40 seconds had elapsed. (Video #4). 

Zuress was then taken to the hospital where she received treatment for her injuries. Zuress 

received 17 staples in her arm, and now alleges that she has a permanent scar and suffers from 

nerve damage. (Doc. 21-2, Ex. B, Dep. of Ashley Zuress at PAGEID #247). After Zuress was 

taken to the hospital, officers searched the Jeep and found a loaded revolver that Grooms had 

tossed to Zuress before fleeing the vehicle. (Doc. 21-1, Ex. C, Dep. of John Purtee at PAGEID 

#325). Zuress was later charged with two felony counts, failure to follow an order of a police 

officer and obstructing official business. Zuress entered a plea bargain when the charges were 

reduced to misdemeanors. 

II. STANDARD OF REVIEW 

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 

Procedure. Summary judgment is appropriate when “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Berryman 

v. SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s purpose in 

considering a summary judgment motion is not “to weigh the evidence and determine the truth of 

the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury 

could return a verdict, based on “sufficient evidence,” in favor of the nonmoving party; evidence 

that is “merely colorable” or “not significantly probative,” however, is not enough to defeat 

summary judgment. Id. at 249–50. 
6 

The party seeking summary judgment shoulders the initial burden of presenting the Court 

with law and argument in support of its motion as well as identifying the relevant portions of “‘the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial 

burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing 

that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep’t of 

Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce evidence 

that results in a conflict of material fact to be resolved by a jury”). 

In considering the factual allegations and evidence presented in a motion for summary 

judgment, the Court “views factual evidence in the light most favorable to the non-moving party 

and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d 

502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of fact 

sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F. Supp. 

2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence to 

support [the non-moving party’s] position will be insufficient; there must be evidence on which 

the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 

479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251. 

III. DISCUSSION 

Defendants move for summary judgment on the Plaintiff’s § 1983 excessive force and state 

law battery claims against Officer Burris and the municipal liability claims against the City of 

Newark. 

42 U.S.C. § 1983 imposes civil liability on individuals who act under the color of state law 

and deprive a citizen of their constitutional rights. See Brousseau v. Haugen, 543 U.S. 194, 197–
7 

98 (2004). For a plaintiff to state a claim under § 1983 they must show: 1) their constitutional 

right(s) have been violated, and 2) a person acting under the color of state law caused the violation. 

Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015). There is no dispute as to the second prong 

of this analysis—that Officer Burris was acting under the color of state law. However, Defendants 

do contest the first prong—Zuress’ claim that her constitutional rights were violated. 

A. Officer Burris is Entitled to Qualified Immunity because he did not use Excessive 

Force to Apprehend Zuress 

Defendants argue that Officer Burris is entitled to qualified immunity because he did not 

violate Zuress’ rights. (Doc. 21, Mot. at 10). They contend that given the totality of the 

circumstances, it was objectively reasonable for Officer Burris to use Ike to assist in apprehending 

Zuress. Zuress counters that Officer Burris is not entitled to qualified immunity because he used 

excessive force in violation of her constitutional rights. She contends that she was, at most, 

passively resisting arrest, not suspected of a serious crime, and did not pose an immediate safety 

or flight threat to Officer Burris. (Doc. 28, Resp. at 24–34). Defendants argue that the force they 

used was objectively reasonable given the circumstances. This Court agrees with Defendants. 

Qualified immunity protects government officials acting under the color of state law so 

long as “their conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When analyzing a government 

official’s claim of qualified immunity, the Court conducts a two-step analysis: 1) has the plaintiff 

alleged or shown facts evidencing a violation of a constitutional right, and 2) was the alleged 

violation of that constitutional right “clearly established” at the time of the incident. Stanfield v. 

City of Lima, 727 F. App’x 841, 845 (6th Cir. 2018) (quoting Pearson, 555 U.S. at 232). If a 
8 

plaintiff is to defeat a claim of qualified immunity, the court must answer the prior questions in 

the affirmative. Stanfield, 727 F. App’x at 845. 

Thus, in evaluating whether qualified immunity protects Officer Burris from Zuress’ 

§ 1983 claim of excessive force, this Court must first consider if Officer Burris violated Zuress’ 

constitutional rights. If he did so, only then will this Court determine if those constitutional rights 

were clearly established at the time of the incident. 

The Fourth Amendment governs police officers’ use of force during an arrest. See Phelps 

v. Coy, 286 F.3d 295, 299 (6th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). 

The Fourth Amendment requires that law enforcement’s use of force is reasonable. Graham, 490 

U.S. 386 at 395. The Fourth Amendment authorizes police officers to use force in effecting an 

arrest, “but the question is . . . whether [officers] could reasonably use the degree of force 

employed against the [suspect].” Stanfield, 727 F. App’x at 845 (quoting Martin v. City of 

Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013)). The degree of force inquiry is an objective 

inquiry that does not utilize the benefit of 20/20 hindsight, but rather, “must be evaluated from the 

perspective of a reasonable officer on the scene.” Graham, 490 U.S. 386 at 396. Importantly, “not 

every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, 

violates the Fourth Amendment.” Id. Courts consider “the fact that police officers are often forced 

to make split-second judgments—in circumstances that are tense, uncertain, and rapidly 

evolving—about the amount of force that is necessary in a particular situation.” Id. at 397. The 

extent of the injury is not the central part of the analysis, rather, the key question is whether law 

enforcement acted with “gratuitous violence.” Coley v. Lucas Cnty., Ohio, 799 F.3d 530, 539 (6th 

Cir. 2015). 
9 

In evaluating a police officer’s use of force, courts consider three factors: 1) the severity of 

the crime, 2) the suspect’s immediate threat to the safety of the officers and others, and 3) the 

suspect’s evasion or resistance of arrest. Graham, 490 U.S. 386 at 396. With these three factors 

in mind, a court must then determine “‘whether the totality of the circumstances justified a 

particular sort of seizure.’” Stanfield, 727 F. App’x at 846 (quoting Graham, 490 U.S. 386 at 396). 

Because this is a motion for summary judgment, this Court first views the alleged facts in a light 

most favorable to the non-moving party (here, Zuress); because this case involves qualified 

immunity, this Court then views the non-moving party’s facts as a reasonable officer on the scene 

would. Id. at 845–46. 

1. Severity of the Crime 

The first factor—the severity of the crime—weighs in Officer Burris’ favor. Officer Burris 

and Officer Hunt were performing surveillance on an individual who had an outstanding felony 

warrant, was known to be active within the illicit drug community, was believed to be connected 

to an armed robbery, and failed to pull over immediately when the officers initiated a traffic stop. 

After stopping the Jeep, the individual fled on foot and an unknown driver of the Jeep left the scene 

of a valid traffic stop. Eventually, Zuress was charged with obstructing official business and 

failure to comply with police orders. 

All of these facts together create a scenario where a reasonable officer would have reason 

to believe a serious crime could be taking place. Officer Burris suspected that these individuals 

could have been involved in illicit drug activity, and drug crimes are typically serious crimes. See 

Darden v. City of Fort Worth, Texas, 880 F.3d 722, 729 (5th Cir. 2018) (finding that the severity 

of the crime weighed in favor of the defendants when the officers were executing a narcotics 

warrant). Prior evidence of drug activity does not necessarily turn a minor crime into a severe 

crime. Saunders v. Cuyahoga Metro. Housing Auth., 769 F. App’x 214, 220 (6th Cir. 2019) (“a 
10 

previous report of drug activity does not change the analysis because there is nothing in the record 

suggesting that drug activity occurred”). However, the situation at hand differs because Officer 

Burris had multiple reasons to suspect that drug activity was presently occurring. First, the Jeep 

arrived at the Willowood residence and departed a short time later—an action common with drug 

activity. Second, when the officers initiated a traffic stop the Jeep did not pull over immediately 

and passed several locations well suited for a stop—an action that is common when individuals 

are hiding or swallowing contraband. Third, Grooms fled the scene on foot—indicating that he 

had serious motive to not interact with the police. Fourth, Zuress fled the initial stop in a vehicle—

indicating that she had serious motive to not interact with the police. Combining all these factors 

together, it was reasonable for Officer Burris to suspect that drug activity or some other serious 

crime was afoot. 

Zuress argues that she was simply suspected of, and charged with, the minor crime of 

“obstructing official business by fleeing from the scene of a lawful traffic stop, a non-violent 

second degree misdemeanor.” (Doc. 28, Resp. at 25). Zuress tries to minimize the severity of the 

situation by urging this Court to separate Groom’s actions from her actions. She argues that 

“picking the wrong boyfriend is not a crime” and “she was suspected...of committing a nonviolent offense: driving her own Jeep away from the scene where her boyfriend was pretextually 

stopped and fled.” (Id. at 26). 

With the benefit of hindsight, Zuress appears to have a compelling argument. However, 

Officer Burris did not have the benefit of hindsight during the incident and the degree of force 

inquiry is an objective inquiry that does not utilize the benefit of 20/20 hindsight, but rather, “must 

be evaluated from the perspective of a reasonable officer on the scene.” See Graham, 490 U.S. 

386 at 396. All that Officer Burris knew at the time of the incident was that Zuress was traveling 
11 

with a known felon who left a known drug house, was connected to an armed robbery, and fled a 

felony traffic stop after her boyfriend fled from the same felony traffic stop. These facts cannot 

be ignored. While the first traffic stop was initiated for a failure to signal a turn, the second traffic 

stop was initiated because Zuress fled from the prior traffic stop. In other words, the situation had 

escalated greatly after Grooms fled the scene and Zuress drove away. Looking at the entire 

situation, it was reasonable for Officer Burris to not only suspect Zuress of fleeing the scene, but 

also drug trafficking and possession of a firearm. For these reasons, the severity of the crimes that 

Zuress was suspected of weigh in favor of Officer Burris. 

2. Threat to Officers or Citizens 

The second factor—the threat posed to the officers and others—weighs in favor of Officer 

Burris. Officer Burris claims that “it was objectively reasonable to believe that Ms. Zuress posed 

a threat to the safety of the officers and citizens.” (Doc. 21, Mot. at 15). Whereas Zuress argues 

that “nothing in [her] acts or failure to act suggested that she was dangerous or likely to flee.” 

(Doc. 28, Resp. at 27). This Court disagrees with Zuress—it was objectively reasonable for an 

officer to believe that Zuress posed a threat to the safety of the officers or others. 

There are several reasons why it would be reasonable for an officer to fear for their safety 

during the incident. First, Zuress was traveling with an individual who was believed to be involved 

in drug activity and armed, had just fled on foot, and had a warrant out for his arrest. Second, 

Zuress herself fled from the scene of a traffic stop, was standing next to an open drivers side door 

where she could have accessed a weapon or continued her flight, failed to comply with orders to 

walk backwards towards the officers, and reached for her waistband where a weapon could have 

been hidden. Third, the environment itself presented a dangerous situation because the officers 

did not know if there were other occupants in the vehicle (or if any such occupants were armed), 

did not know if Zuress’ flight was a part of a larger plan for Grooms to escape custody, and were 
12 

at risk of a potential ambush by Grooms who had fled out of sight earlier. Further, the incident 

occurred in a residential area where citizens could have been put in harm’s way. 

Caldwell v. City of Southfield is instructive on this issue. In Caldwell, the court found it to 

be objectively reasonable for an officer to fear for his safety when he knew that the suspect had 

recently been in possession of a firearm during robberies and the suspect exited a stolen vehicle 

and grabbed his waistband. Caldwell v. City of Southfield, No. CV 13-15283, 2015 WL 7016336, 

at *8 (E.D. Mich. Nov. 12, 2015). The situation at hand is similar. Here, Zuress was traveling 

with Grooms, whom Officer Burris suspected was armed because he had information that Grooms 

was connected to an armed robbery. Further, after exiting the Jeep, Zuress did not stand with her 

back facing the officers and reached towards her waistband. This activity is enough to make a 

reasonable officer fear for his safety. See Jackson v. Washtenaw Cty., 678 F. App’x 302, 306–07 

(6th Cir. 2017) (“While Jackson was in one sense complying with [the officer’s] command to stop, 

his further turning around with his hand by his waist presented itself as an immediate threat to the 

officer.”). 

When combining Officer Burris’ knowledge of Grooms, Zuress’ own actions during the 

stops, and the dangerous environment the officers found themselves in, it is objectively reasonable 

for an officer in this situation to have significant fear for his safety or the safety of the citizens in 

the surrounding area. 

3. Resisting or Evading Arrest 

The third factor—the arrestee’s resistance to or evasion from arrest—weighs slightly in 

favor of Zuress. Defendants argue that Zuress was “actively resisting commands of Officer Purtee 

and thus not being compliant with the effort to safely arrest her.” (Doc. 21, Mot. at 15). Zuress 

argues that her non-compliance with the officer’s commands constitutes passive resistance that 

makes the use of Ike excessive. (Doc. 28, Resp. at PAGEID #905). 
13 

When analyzing the level of force officers use to effectuate an arrest, courts draw a 

distinction between active and passive resistance. See Jackson, 678 F. App’x at 306 (6th Cir. 

2017) (“[the Sixth Circuit] has long distinguished active resistance by arrestees from passive 

resistance. The former can be characterized by physical force, a show of force, or verbal hostility 

coupled with failure to comply with police orders. The latter is generally shown by the lack of 

physical resistance or verbal antagonism.”) (internal citations omitted). Generally, active 

resistance by a suspect will warrant an increase in the use of force, whereas passive resistance does 

not justify an increase in the use of force. See Ebie v. City of Pataskala Div. of Police, No. 2:16-

cv-283, WL 3057722 (S.D. Ohio June 20, 2018) (Watson, J.) (“failure to comply with officer 

orders alone does not constitute active resistance for purposes of the Graham analysis.”). 

In the situation at hand, it is undisputed that Zuress exited the Jeep and failed to comply 

with orders to turn her back and walk towards the officers backwards. On the other hand, Officer 

Burris makes no claim that Zuress fought back, pulled away, or otherwise exerted physical force 

or verbal hostility once she was pulled over the second time. These actions seem to constitute 

passive resistance. However, it is also true that Zuress had just fled the scene of the first traffic 

stop. Fleeing from the scene of a traffic stop in a car would certainly constitute an active attempt 

to evade arrest, and this must be considered when classifying Zuress’ resistance as either active or 

passive. Courts have found that once a suspect stops resisting the arresting officers must act 

accordingly and cease the use of escalated force. See Goodwin v. City of Painesville, 781 F.3d 

314, 324 (6th Cir. 2015) (citing Landis v. Baker, 297 F. App’x 453, 463 (6th Cir. 2008)) 

(“previously-resisting suspects have a constitutional right to be free of a gratuitous application of 

a Taser once they have stopped all resistance”). However, those situations usually involve a 

suspect who not only stops actively resisting, but completely surrenders. See Alicea v. Thomas, 
14 

815 F.3d 283, 290 (6th Cir. 2016) (finding that an officer could have acted unreasonably when he 

“command[ed] a dog to attack a suspect who had ceased flight, was effectively trapped, and who 

immediately complied with police orders.”). Cases like Alicea differ from the case at hand, 

because while Zuress did stop fleeing, she did not fully comply with the officers’ orders and was 

not trapped. To further illustrate this point, the Sixth Circuit has found that even when a suspect 

raises their hands in surrender after evading arrest, the use of a canine is not necessarily excessive. 

Baxter v. Bracey, 751 F. App’x. 869, 872 (6th Cir. 2018) (“even with Baxter’s hands raised, Harris 

faced a suspect hiding in an unfamiliar location after fleeing from the police who posed an 

unknown safety risk—all factors the Campbell court identified as significant to determining 

whether the seizure was lawful.”); see also Johnson v. Scott, 576 F.3d 658 (7th Cir. 2009) (finding 

that although the plaintiff raised his hands and stated “I give up” that a “a reasonable officer could 

think that the use of the dog was necessary to help control [the plaintiff]; otherwise [the plaintiff] 

might have had the time he needed to retrieve and use a weapon.”). 

Here, once Zuress stopped the second time, she stepped out of the car, but she did not 

surrender by putting her hands up nor did she fully comply with the officer’s demands. In fact, as 

discussed above, she made movements that gave the officers reasonable concern for their safety 

(e.g., turning around, fidgeting, reaching for her waistband, etc.). Thus, it cannot be said that 

Zuress completely surrendered such that it would be unreasonable for Officer Burris to think that 

the use of Ike was excessive. 

Therefore, while Zuress was passively resisting arrest by not following the officers’ 

commands, she was also actively evading arrest in the moments before Ike was released. On 

balance, the active resistance or evading arrest prong probably favors Zuress, but only slightly. 
15 

4. Totality of the Circumstances 

 The three factors discussed above are not exclusive—the Court is to consider those three 

factors and then determine if the force was objectively reasonable based on the “totality of the 

circumstances.” See Graham, 490 U.S. 386 at 396. In looking at the totality of the circumstances, 

it was objectively reasonable for Officer Burris to use Ike to help effectuate the arrest of Zuress. 

Zuress could have been involved in a serious or dangerous crime, Officer Burris’ safety could have 

been at risk, and Zuress had just actively fled a police stop before pulling over and then failing to 

fully comply with the officers’ commands. Taking into account all the facts, Officer Burris did 

not violate Zuress’ Fourth Amendment right to be free from excessive force. 

 Zuress argues that the experts she retained in the course of litigation bolster her argument. 

She claims “experts will persuasively explain to the jury how Defendant Burris misused Ike...” 

(Doc. 28, Resp. at PAGEID #946). Defendants claim that the motion for summary judgment is 

not the proper place to consider such expert testimony because such opinions “go to the ultimate 

issues of the case, and thus have no place in summary judgment proceedings. Rather, such 

opinions are to be used only if the case were to make it to trial, at which time a jury could draw 

inferences from the testimony.” (Doc. 30, Reply at PAGEID #1062-63). This Court agrees with 

the Defendants. 

 “When the rules speak of an expert’s testimony embracing the ultimate issue, the reference 

must be to stating opinions that suggest the answer to the ultimate issue or that give the jury all the 

information from which it can draw inferences as to the ultimate issue.” Berry v. City of Detroit, 

25 F.3d 1342, 1353 (6th Cir. 1994). An expert opinion offered on the objective reasonableness of 

an officer’s use of force is a legal conclusion because “objective reasonableness is the precise legal 

standard of Graham to be used in the qualified immunity inequity. . .” DeMerrell v. City of 

Cheboygan, 206 F. App’x 418, 426 (6th Cir. 2006). 
16 

 In the case at hand, both of Zuress’ experts offer their opinion that Zuress was the subject 

of excessive force. Zuress admitted as much when she stated “conclusions by both of Zuress’ 

experts that excessive K-9 force was used” and “[t]heir opinions are especially probative because 

they detail the way in which the officers acted unreasonably on the undisputed facts. . .” (Doc. 28, 

Resp. at PAGEID #934). Thus, while the expert opinion may be persuasive at trial, the Court is 

under no obligation to accept the legal conclusions offered by Zuress’ experts in determining 

whether a genuine dispute of material fact exists. See Carpenter v. City of Franklin, No. 1:05-cv323, 2006 WL 3791931 at *13 (S.D. Ohio Dec. 22, 2006) (finding that the expert opinion “fail[ed] 

to meet the requirement for a factual basis and that the finding of a ‘proper’ use of force is a 

conclusory assertion about an ultimate legal issue”). 

 Notwithstanding the foregoing, the expert opinions do not shed any additional light on the 

undisputed facts in this case and thus, do not help to create a genuine issue of material fact. The 

Court has video evidence from the incident and Officer Burris offered his state of mind during the 

incident in his deposition. The expert opinions do not shed new light on the video evidence or 

Officer Burris’ state of mind during the incident. Thus, the expert testimony does not provide any 

new facts that create a genuine issue of material fact. 

 Lastly, there is nothing in Zuress’ expert’s opinions that is particularly persuasive. Expert 

testimony is often viewed with skepticism. See Campos v. MTD Products, Inc., No. 2-07-0029, 

2009 WL 920337 at *2 (M.D. Tenn. April 1, 2009) (“the concern remains that expert witnesses 

are, in effect, hired guns, who, while educated and experienced in the field, are willing and able to 

hire themselves out to the highest bidder to provide opinions in favor of the hiring party.”). “‘An 

expert can be found to testify to the truth of almost any factual theory, no matter how frivolous, 

thus validating the case sufficiently to avoid summary judgment and force the matter to trial.”’ 
17 

United States v. D.M., 942 F. Supp. 2d 327, 335 (E.D.N.Y. 2013) (quoting Jack B. Weinstein, 

Improving Expert Testimony, 20 U. RICH. L. REV. 473, 482 (1986)). The reality that experts can 

be hired to say almost anything in support of their client is only reinforced by the fact that the 

Defendants in this case have hired two of their own experts who come to the opposite conclusion 

of Zuress’ experts. (Doc. 30, Reply at PAGEID #1063; Doc. 30-1, Ex. A, Expert Report of Ross 

at PAGEID #1082; Doc. 30-2, Ex. B, Expert Report of Smith at PAGEID #1153.). Thus, this 

Court finds that Zuress’ expert opinions are not persuasive nor do they create a genuine issue of 

material fact. 

Having found that Officer Burris did not violate Zuress’ constitutional rights, the Court 

does not need to consider whether those rights were “clearly established.” Therefore, Officer 

Burris is entitled to qualified immunity and the Motion with regards to the excessive force claim 

against Officer Burris is GRANTED. 

B. Newark cannot be held liable under a Municipal Liability Theory 

Because this Court finds that Officer Burris did not violate Zuress’ constitutional rights by 

using excessive force, the City of Newark cannot be held liable under a municipal liability theory. 

See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001) (“If no constitutional 

violation by the individual defendants is established, the municipal defendants cannot be held 

liable under § 1983.”) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). However, 

for the sake of argument, this Court will consider whether Newark could be held liable if Officer 

Burris had violated Zuress’ rights. 

The Monell decision made clear that local government units could be held liable for § 1983 

claims, but that “§ 1983 did not support respondeat superior liability, reasoning that ‘Congress 

did not intend municipalities [and other local government units] to be held liable unless action 

pursuant to official municipal policy of some nature caused a constitutional tort.’” Moldowan v. 
18 

City of Warren, 578 F.3d 351, 394 (6th Cir. 2009) (quoting Monell, 436 U.S. at 691). A plaintiff 

can identify one of four methods “[t]o show the existence of a municipal policy or custom leading 

to the alleged violation: “(1) the municipality’s legislative enactments or official policies; (2) 

actions taken by officials with final decision-making authority; (3) a policy of inadequate training 

or supervision; or (4) a custom of tolerance of acquiescence of federal violations.” Baynes v. 

Cleland, 799 F.3d 600, 621 (6th Cir. 2015), cert. denied, 136 S. Ct. 1381 (2016) (citing Thomas v. 

City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). 

 In the Complaint, Zuress alleges that the City of Newark showed deliberate indifference 

to the constitutional rights of its citizens through its “policies, training, supervision and discipline 

needed to prevent its police officers and canine units from using excessive force. . . .” (Doc. 1, 

Compl. at ¶ 68). Thus, the Complaint indicates that Zuress is alleging 1) the official policies 

regarding use of force are unconstitutional, 2) the disciplinary decisions of Newark’s final 

decision-makers are unconstitutional, and 3) the training program for Newark’s officers is 

unconstitutional. Zuress does not allege that Newark has a custom of tolerance for federal 

violations. However, in Zuress’ Response to the Defendant’s Motion for Summary Judgment, she 

only argues that the official policies of Newark are unconstitutional. (Doc. 28, Resp. at 50–54). 

There is no mention of the disciplinary decisions of Newark officials nor is there mention of a 

failure to train police officers in the use of force. 

When a plaintiff does not address a claim in response to a motion for summary judgment, 

the plaintiff is deemed to have abandoned the claim. See Brown v. VHS of Michigan, Inc., 545 F. 

App’x 368, 372 (6th Cir. 2013) (citing Hicks v. Concorde Career Coll., 449 F. App’x, 484, 487 

(6th Cir. 2011)). Therefore, despite alleging failure to discipline and failure to train, Zuress has 

abandoned those claims and Newark would be entitled to summary judgment on those claims even 
19 

if Officer Burris had violated Zuress’ rights. The Court will now turn to Zuress’ only remaining 

municipal liability claim—that Newark maintains an unconstitutional policy for its use of canines. 

When determining whether a municipality’s policy is unconstitutional, the essential 

question courts ask is: “did the municipality cause the harm or did an individual actor?” Morgan 

v. Fairfield County, Ohio, 903 F.3d 553, 565 (6th Cir. 2018). When an act of the municipality 

itself causes the injury, “fault and causation obviously apply.” Id. at 565. “Likewise, when an 

injury is caused by the straightforward carrying out of a municipal policy or custom, the 

determination of causation is easy.” Id. at 566. The Sixth Circuit has established a simple test to 

determine when a municipal policy is unconstitutional; plaintiffs must “1) identify the municipal 

policy or custom, 2) connect the policy to the municipality, and 3) show that their particular injuries 

were incurred due to the execution of that policy.” Id. at 566 (citing Alkire v. Irving, 330 F.3d 802, 

815 (6th Cir. 2003)). 

Zuress claims that Newark’s canine policy is unconstitutional because it does not account 

for the excessive force factors established by Graham. (Doc. 28, Resp. at 52). Zuress argues that 

the Newark Police Department “promulgated, disseminated, and applied use of K-9 force policies 

that neglected or omitted circumstances which distinguish between reasonable and excessive K-9 

force.” (Id. at 54). In other words, Zuress’ argues that the Newark Police Department’s policy is 

unconstitutional because it does not account for all the constitutional considerations that should be 

taken into account when officers use escalated force (e.g., passive versus active resistance). 

Newark counters that the use of force policy adopted by the Newark Police meets the constitutional 

standard because it “sets forth a response to resistance/aggression continuum consistent with 

established Sixth Circuit law.” (Doc. 30, Reply at PAGEID #1064). This Court agrees with 

Newark. 
20 

When looking at Section 3.3 and 3.12 of the Newark Policy on Police Service Animals (the 

“Newark Policy”), it is clear that the policy mirrors the exact factors that Graham requires courts 

to consider. The policy states: 

3.3.2 Decisions to deploy a canine shall be based on the following: 

3.3.2.1 The severity of the crime. 

3.3.2.2 Whether the suspect poses an immediate threat to the safety of the 

officers or others. 

3.3.2.3 Whether the suspect is actively resisting or attempting to evade 

arrest at the time. 

3.3.2.4 Whether or not the deployment is likely to result in physical 

apprehension of the suspect. 

3.12 Physical Apprehension of Suspects 

3.12.1 Canine handlers may use canines to physically apprehend suspects 

when it is objectively reasonable to believe that: 

3.12.1.1 The suspect has committed a felony, or a violent 

misdemeanor as defined by the Division. 

3.12.1.2 The suspect poses an immediate threat to the safety of the 

officers or others. 

3.12.1.3 The suspect is actively resisting or attempting to evade 

arrest at the time. 

(Doc. 21-1, Ex. B, Newark Division of Police General Order at PAGEID #188–89; 194). The 

sections of the Newark Policy listed above contain the exact same three considerations as the 

Graham test: severity of the crime, threat to the safety of officers or others, and attempts to resist 

or evade arrest. Zuress claims that the Newark Policy is facially unconstitutional, but this Court 

cannot see how that is the case. The Newark Policy restates, almost word-for-word, the exact 

criteria that the Graham test uses for the evaluation an officer’s use of force. 

 Further, Section 3.8.1 of the Newark Policy states: 

Use of specially trained police canines for law enforcement responsibilities 

constitutes a real or implied use of force. In this as in other cases, officers may only 

use that degree of force that reasonably appears necessary to apprehend or secure a 

suspect as governed by the Division’s use-of-force-policy. 
21 

(Id. at PAGEID #192). This also mirrors the constitutional test for excessive force because it 

commands officers to only use “force that reasonably appears necessary.” This is essentially the 

same standard as the “objectively reasonable” standard that courts use when determining if an 

officer’s use of force is excessive. 

 Courts typically find that a municipality’s policy is facially unconstitutional when it does 

not “give any leeway for the officers to consider the constitutional limits that they might face.” 

See Morgan v. Fairfield Cnty., Ohio, 903 F.3d 553, 566 (6th Cir. 2018) (finding that a 

municipality’s policy on police “knock and talk” interactions violated the Fourth Amendment 

because the policy did not give “weight to the core value of the Fourth Amendment”). The same 

cannot be said here. In fact, the opposite can be said here—the Newark Policy completely relies 

on the Fourth Amendment’s excessive force core values. 

 Thus, while Zuress can identify the municipal policy or custom at issue and can connect 

the policy to the municipality, Zuress cannot show that any violation of her constitutional rights 

occurred due to the execution of Newark’s Policy. If there was a violation of Zuress’ constitutional 

rights, it would be because Officer Burris did not act reasonably in assessing the severity of the 

crime, the threat posed by Zuress, and Zuress’ resistance or evasion of arrest. In other words, 

Newark’s Policy would not have caused the constitutional violation, but rather, Officer Burris’ 

misapplication of the policy would have caused the constitutional violation. Therefore, even if 

Zuress’ constitutional rights had been violated, Newark’s Policy would not be facially 

unconstitutional, and Newark could not be liable. 

C. Zuress has Abandoned the State Law Battery Claim against Officer Burris 

This Court now turns to Zuress’ state law battery claim against Officer Burris. Under Ohio 

law, “[i]f an officer uses more force than is necessary to make an arrest and protect himself from 

injury, he is liable for assault and battery.” D’Agastino v. City of Warren, 75 F. App’x 990, 995 
22 

(6th Cir. 2003) (ellipsis omitted) (quoting City of Cincinnati v. Nelson, No. C-74321, 1975 WL 

181750, at *2, 1975 Ohio App. Lexis 7443, at *5 (Ohio Ct. App. May 5, 1975)). Defendants argue 

that the applicable statute of limitations, found in Ohio Revised Code Section 2305.111(B), bars 

the state battery claim. (Doc. 21, Mot. at 19).4 In the alternative, Officer Burris argues that he is 

protected by Ohio’s immunity statute. See Ohio Revised Code Section 2744.02. 

 It is not necessary for this Court to address the merits of Officer Burris’ argument because 

Zurress concedes that the statute of limitations bars the claim. (Doc. 28, Resp. at 54–55) (“Zuress 

concedes that she has not been able to compile evidence creating a genuine issue of material fact 

on her compliance with R.C. 2305.11(B) [sic]. . . Defendants are correct under the prevailing 

precedent that she ‘could have discovered’ Defendant Burris’ identity before one year had 

lapsed.”). 

Therefore, this Court deems Zuress to have abandoned her state law battery claims against 

Officer Burris and the Motion with regards to the Ohio state law battery claim is GRANTED. 

 

4

 The Ohio statute of limitations for battery states: 

Except as provided in section 2305.115 of the Revised Code and subject to division (C) of this 

section, an action for assault or battery shall be brought within one year after the cause of the action 

accrues. For purposes of this section, a cause of action for assault or battery accrues upon the later 

of the following: 

(1) The date on which the alleged assault or battery occurred; 

(2) If the plaintiff did not know the identity of the person who allegedly committed the assault or 

battery on the date on which it allegedly occurred, the earlier of the following dates: 

(a) The date on which the plaintiff learns the identity of that person; 

(b) The date on which, by the exercise of reasonable diligence, the plaintiff should have 

learned the identity of that person. 

Ohio Revised Code Section 2305.111(B). 
23 

IV. CONCLUSION 

For the foregoing reasons, the Motion is GRANTED. The Clerk shall remove Document 

21 from the Court’s pending motions list. The Clerk shall enter final judgment in favor of 

Defendants and REMOVE this case from the Court’s pending cases list. 

IT IS SO ORDERED. 

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT