on the morning of July 20th 2020 rookie
Cleveland police officer Bailey Gannon
shot his partner screaming as he fled
and panicked down a flight of stairs
from a man who was neither chasing or
threatening him Gannon pointed his gun
over his head in the opposite direction
he was running and began firing blindly
behind him one of his bullets hit his
partner whom he had just run right past
that was the opening paragraph of a
federal civil rights lawsuit just filed
by a Cleveland Police Officer Jennifer
kilnap against her former partner as
well as the city of Cleveland so this is
a police shooting case an excessive
force case from One Cop against another
cop can a police officer who is
unintentionally shot by another police
officer sue the government for civil
rights violation unfortunately I can
answer that one but first here's a
portion of the body cam footage you can
see the full clip along with the full
federal civil rights complaint at the
website at the Civil Rights lawyer.com
he's
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good who are you talking to
oh okay okay
come on he's upstairs
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moose
[Applause]
what's that
yeah
switch right here right here
the bullet that struck Officer Jennifer
kilnap ended up lodging in her spine
investigators almost immediately
concluded that it was probably her
partner officer Gannon who had shot her
despite that knowledge the division of
police in Cleveland and Cuyahoga County
prosecutor's office instead charged with
the suspect Daryl Borden with attempted
murder falsely claiming that he shot
killnap these charges would be quietly
dropped almost a year later
he still went to prison though more on
that in a minute investigators
determined that officer Gannon lied
about the shooting despite this he
received no discipline for lying much
less for shooting his partner
unbelievably three months after the
shooting the city of Cleveland raided
officer gannon's overall performance as
quote exceeding expectations
referring to shooting his partner is
merely a quote minor setback
this probably had nothing to do with the
fact that gannon's father was a sergeant
with the Cleveland division of police
remember officer Gannon was a rookie cop
he entered field Patrol as an officer in
January of 2020 and shot his partner on
July 20th of 2020. so before the first
year was even out he was quote exceeding
expectations
now in the early hours of July 20th 2020
these two officers kill nap and Gannon
responded to a call on the east side of
Cleveland alleging that there was an
emotionally disturbed man with a gun on
the second floor of the boarding home he
was staying in
there had been no report of the man
shooting at anyone or otherwise being
physically violent now this is according
to the allegations in the lawsuit the
information released publicly at the
time by the prosecutor's office was that
the man had shot through the floor at
the 9-1-1 caller prior to the law
enforcement arrival perhaps that was
false which wouldn't be surprising given
everything else now that we know about
this story looking at the body cam
footage I don't see where there's any
allegation of the man actually shooting
through the floor
so after learning the man Daryl Borden
was in this second floor bathroom the
two officers went upstairs to the
hallway Ganon then took the lead and
stood offset from the bathroom door with
killnap in a position a few feet behind
him the staircase was between Ganon and
kill map Ganon did not knock and
announce their presence as police
officers Gannon did not ask Borden to
come out of the bathroom
still in the bathroom Borden made no
threatening statements to the officers
or in their presence the lawsuit alleges
that rather than taking any other steps
such as de-escalation withdrawing
establishing a perimeter attempting
surveillance of the bathroom waiting for
Borden to come out calling for backup
resistance instead Ganon decides to open
that bathroom door
according to the lawsuit's allegation
when Gannon does open the door Borden
was standing there apparently holding a
firearm pointed downwards at his side in
one hand Borden Took no steps towards
Ganon or nor made any other threatening
or any threatening gestures or
statements Gannon did not order Borden
to drop his weapon he didn't order him
to do anything instead he panics he
spins backwards out of the doorway out
of sight of Borden
Borden still took no action
officer Gannon then ran away towards the
stairs
Borden didn't follow him or even flee
but rather stayed in the bathroom
officer killnap Borden's partner was
standing near the top of the stairs
Gannon bolted down the ski these stairs
screaming as he fled as he ran Gannon
pointed his gun over his head behind him
in the opposite direction he was running
and began shooting blindly behind him
one of these bullets hits kill nap as
she stood near the top of the stairs
gannon's body cam footage shows him
running away while killnap yells after
him I'm shot I'm shot don't leave me
killnap filed this lawsuit on July 13
2022 which discloses that Ganon never
even apologized to his partner for
shooting her
so the investigation team created
several diagrams showing the bullet
trajectory that injured killnap
so diagram one is an overhead view of
the staircase hallway and bathroom this
shows that one of ganon's bullets marked
by a yellow line was fired through the
bathroom wall near the top of the
staircase on a slight downward angle
meaning that he must have been holding
his gun above his head when he fired as
he was running away
now diagram 2 shows officer killnath's
approximate vantage point when Ganon
began shooting as well as the path of
Borden's bullets when he reacted to
Ganon opening fire this shows the
investigator's conclusion that no
bullets fired by Borden even traveled in
the direction of officer killnap
Gannon initially had claimed to
investigators that when he opened the
door Borden was holding a gun into hands
and pointing it at the door the lawsuit
alleges however the ganon's body cam
footage shows this claimed to be a lie
so take a look at the screenshot of the
door the moment the door opens so if you
look at this still shot the moment the
body cam footage on Ganon shows the
bathroom door opening you can see the
Borden's left arm appears to be pointed
away from Ganon towards Borden's right
therefore it was clearly false to claim
that both of Borden's hands were pointed
towards the door at the moment it opened
so despite having evidence that it was
Ganon police officer who shot kill nap a
July 31st 2020 press release from the
prosecutor's office claimed that Borden
fired multiple shots at officers
striking officer kill map
those charges again would be dismissed
around a year later
so what ended up happening to Mr Borden
well he was given a seven to ten year
prison term by a Cuyahoga County judge
for attempted felonious assault of a
police officer and using a gun in the
commission of that crime and in
September of 2021 a federal judge tacked
on yet another five years of
incarceration for Mr Borden for federal
firearms related charges since he was a
felon in possession of a firearm in the
first place
now Ironically in March of 2021 the CDP
suspended officer killnath now not
Gannon we're talking about kill map
suspended her for her involvement in
this incident on the grounds that she
forgot to turn on her body cam before
entering the house on the night of the
shooting to the contrary the CDP took
absolutely no disciplinary action
against Gannon for shooting blindly
through a wall while running away from a
suspect
shooting his partner in the process can
one officer sue another officer for a
civil rights violation for accidentally
shooting each other
so this scenario actually happened here
in West Virginia back in 2009 and I was
involved in some of the litigation it
was a tragic case there was a vehicle
Pursuit that ended in multiple police
officers surrounding a suspect's vehicle
with the suspects still at the wheel
several police officers began firing at
the driver one of the bullets ended up
hitting and killing a Charleston Police
Department Officer accidentally or
rather negligently the officer's Widow
sued which was ultimately unsuccessful
why well the fourth amendment protects
the right of the people to be secure in
their persons houses papers and effects
against unreasonable surges and seizures
in order to be seized within the meaning
of the Fourth Amendment one must have
been the intended object of physical
restraint by a state actor the U.S
Supreme Court has held that the fourth
amendment's specific protection against
unreasonable seizures of the person does
not by definition extend to
unintentionally injured bystanders so
the case we had here in West Virginia
this was Jones versus City of Charleston
from 2012 and that held that a since the
colleague police officer in that case
wasn't intention intentionally shot by
the police officer who had fired that no
Fourth Amendment seizure could occur in
other words even a negligent use of a
firearm by a police officer can fall
short of being legally considered
excessive force assuming the victim was
unintentionally shot by the police
officer so in this case there could be
other potential theories of liability
which is probably the best hope for
officer killnap in this case there could
be state law claims based on negligence
or a recklessness standard however it
doesn't appear that any were alleged
here in this lawsuit there may be some
meat to the argument that officer in his
actions that day were possibly
attributed to training or supervisory
issues but it would probably be a
stretch in my opinion to attribute this
to the cpd's overall use use of force
policy issues whatever they are since
Ganon obviously wasn't following any
sane policy if he's running away from
the suspect shooting blindly behind him
through a solid wall sadly unless this
case settles I don't really don't see a
realistic path to liability here but I
hope I'm wrong because there really
should be accountability for someone
being wrongfully shot by another
individual whether police officer or not
so thanks for watching don't forget to
subscribe both here on the website at
thecivilrightslawyer.com
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