On May 10, 2020, Deputy Jennifer Smiley responded to a non-emergency call regarding Cory Driscoll at Possum Creek MetroPark in Montgomery County, Ohio. Park visitors had reported that Driscoll was making strange noises and acting concerningly while sitting in his car. Dispatch informed Smiley that Driscoll was running down a trail with a large water jug and making noises described as sounding like "rolling his R's," but explicitly did not suggest he was armed or dangerous.
When Driscoll emerged from the trail holding the jug, Smiley ordered him to drop it. He initially ignored her but eventually threw the jug on the ground after she repeated the command with her hand on her gun. As Driscoll stepped toward Smiley, she pointed her weapon and radioed that he was "pouring gasoline," a claim not supported by dispatch reports or witness observations.
The encounter escalated over several minutes as Driscoll, who has schizoaffective and bipolar disorders, continued to speak in tongues and refuse commands to get on the ground. He repeatedly approached Smiley with his hands open and empty, at one point telling her to "shoot me." Despite Driscoll posing no physical threat and having no weapon, Smiley shot him in the abdomen when he was still several paces away.
Driscoll survived but lost a kidney, suffered significant internal injuries requiring multiple surgeries, and is now permanently disabled. The Sixth Circuit held that viewing the evidence in the light most favorable to Driscoll, he had sufficiently established that Deputy Smiley used excessive force because she shot an unarmed, non-dangerous suspect who posed no threat of serious physical harm.
The court rejected Smiley's argument that she reasonably believed Driscoll carried gasoline, noting no witness reported smelling it and Driscoll drank from the jug without adverse reaction. The majority concluded that Smiley's belief was not objectively reasonable and that she failed to de-escalate a situation involving a person with evident diminished capacity.
The Sixth Circuit further held that the right not to be shot as an unarmed, nondangerous person was clearly established under Tennessee v. Garner and prior circuit precedent. Consequently, Smiley was not entitled to qualified immunity on Driscoll's federal excessive-force claim or his state-law claims for battery, intentional infliction of emotional distress, and false arrest.