NELSONVILLE, Ohio — A federal judge has allowed a lawsuit to move forward against a former Hocking College police officer who shot and killed a Nelsonville resident in 2021.
The former officer, Cecil Morrison, shot and killed Michael Whitmer, 37, while on duty in July 2021.
The decision on Morrison’s motion for judgment on the pleadings, issued last week, allows the related wrongful death lawsuit to progress past initial pleadings. However, the decision also found that Morrison is not entitled to qualified immunity at this stage in the lawsuit. Morrison could appeal the qualified immunity decision to a higher court, which would temporarily stall the case in the lower court.
Morrison entered a no contest plea for criminal charges related to Whitmer’s death in April 2022. He surrendered his Ohio Peace Officer Training Academy certificate but did not serve jail time.
Chelsea Whitmer, Michael Whitmer’s spouse, filed suit through her husband’s estate in July 2022 in the U.S. District Court for the Southern District of Ohio Eastern Division. She said her primary motivation was to see greater accountability for Morrison.
The lawsuit argues that Morrison violated Michael Whitmer’s constitutional rights to freedom from unreasonable seizure and force on July 27, 2021.
That day, while on duty as a Hocking College police officer, Morrison assisted the Nelsonville Police Department’s response to the Whitmer residence, according to case materials. The law enforcement response was prompted by a neighbor’s call to 911 to report a domestic dispute, according to a recording of the call obtained by the Independent.
Body camera footage released by the Ohio Bureau of Criminal Investigation shows Morrison arriving on the scene to find Michael Whitmer, apparently unarmed, in his car with a child identified in the lawsuit as Whitmer’s son, then 4 years old.
Michael Whitmer attempted to reverse his car out of his driveway multiple times in an apparent attempt to flee. Morrison ran behind Michael Whitmer’s moving vehicle and fired several gunshots into the vehicle. According to case materials, Whitmer died of multiple gunshot wounds.
The complaint says Morrison’s use of deadly force was unreasonable.
In his answer to the complaint, Morrison argues that Michael Whitmer used his car as a weapon by steering toward officers during his attempt to flee. This recklessly endangered officers as well as Whitmer’s child in the car, Morrison argues.
In his motion for judgment on the pleadings, Morrison argued that even if everything in the complaint is true, it does not demonstrate that Morrison deprived Michael Whitmer of his constitutional rights.
However, the motion relied in part on Morrison’s own description of Whitmer using his car as a weapon. Judge James L. Graham said in his decision that Morrison’s description of events differed from the facts as set forth in the initial complaint. The initial complaint must generally be accepted as true in this type of motion, Graham said.
“The alleged situation … is one where Officer Morrison chose to use deadly force at a moment when neither he nor the other officers or any bystanders were in danger,” Graham wrote.
Video evidence “does not utterly discredit plaintiff’s version of events,” Graham found. For the court to weigh video evidence against the complaint at this stage, that evidence would have to “blatantly and conclusively” discredit the complaint, Graham said.
In his motion for judgment, Morrison also argued he is protected by qualified immunity, which protects government officials from civil liability when they do not violate a clearly established constitutional right. However, Graham found that the events as presented by the complaint suggest that Morrison did violate Michael Whitmer’s clearly established constitutional rights.
The qualified immunity issue is immediately appealable, although no appeal had been filed by press time.
American Southern Home Insurance Company, which insures Hocking College, will foot the bill for Morrison’s defense and would ultimately be responsible for a payout to Whitmer’s estate.
The insurance company argued in the Athens County Court of Common Pleas that it was not responsible in this case, because Morrison was supporting a Nelsonville Police Department response when the incident occurred, rather than working directly for the Hocking College Police Department. Judge George McCarthy ruled against the insurance company on Sept. 26. He found Morrison was still performing work duties to benefit Hocking College.
Chelsea Whitmer and her attorney declined to comment. Morrison’s attorneys did not respond to a request for comment.
