However, the court dismissed all the allegations against Montgomery County Sheriff Rob Streck and Montgomery County, as well as allegations that Smiley, the sheriff and the county had infringed on Driscoll’s ability to freely exercise his religion.
The case centers on May 10, 2020, when a group of people at the park called a non-emergency dispatch number to ask for assistance for Driscoll. According to court documents, Driscoll was making loud noises in his vehicle two times that the people passed by, and did not respond when they tried to speak to him.
Driscoll said in court documents that the loud noises, which he continued throughout the incident, were his way of praying by speaking in tongues.
After the bystanders called dispatchers, Driscoll left the vehicle with a one-gallon jug headed for a pond in the park. The bystanders followed but lost sight of Driscoll as he reached the water.
Smiley responded to the call.
After she arrived on scene, Driscoll returned with the jug full of discolored water and Smiley drew her pistol, court documents said.
During the ensuing confrontation, Driscoll would drink from the jug, pour water out, toss it aside and pick it back up. He would also continue to speak loudly in tongues and briefly comply with Smiley’s orders to stop coming toward her a few times, but did not follow orders to get on the ground, documents said.
Court documents said that Smiley believed the liquid Driscoll was drinking was gasoline, and radioed dispatchers to say so and call for a medic.
As the confrontation continued, Smiley kept her gun pointed at Driscoll, documents said.
At one point Driscoll threw his water jug to the side, outstretched his arms at his sides and said, “shoot me,” then resumed speaking in tongues. Shortly after he picked the jug back up and “I’m drinking gasoline” with a tone that the court said could be argued to be as if he was asking a question.
Finally, court documents said the interaction ended when, although Driscoll wasn’t moving, Smiley said she would shoot him if he stepped toward her. He responded by saying “shoot me then,” spread his arms and took two strides toward the deputy.
Smiley fired her weapon, shooting Driscoll in the abdomen, and Driscoll immediately dropped to the ground, documents said. He was taken to Miami Valley Hospital, where he was treated and survived the shooting.
Smiley said that she believed Driscoll to be covered in gasoline and had a lighter, so she assumed he might try to light himself or her on fire when he reached her, court documents said.
A grand jury would later decline to charge Smiley for shooting Driscoll, and the sheriff’s office decided her use of lethal force complied with their policies.
Driscoll filed a lawsuit in October 2022 against Smiley, the sheriff, and the county claiming excessive use of force, violations of his religious freedom and infliction of emotional distress.
He argued that he was unarmed, participating in religious practices, clearing experiencing a mental health crisis and never threatened anyone. Instead, he argued the deputy escalated the situation.
In a discussion of the case, Rose shortly dismissed all the allegations against Streck and the county, saying they couldn’t be held liable for Smiley’s use of force.
“In short, neither Sheriff Streck nor the County shot Driscoll,” he said.
Similarly, the judge dismissed Driscoll’s allegations that Smiley was interfering with his religious freedom by shooting him while he was speaking in tongues, saying, “there is no version of the facts in this case which would suggest that Deputy Smiley even knew Driscoll was praying, much less that she showed his religiosity some form of hostility under color of law.”
He ultimately decided that the only issues that could proceed to trial were whether Smiley used excessive force and whether she committed false arrest and battery against Driscoll, as well as a claim that she inflicted severe emotional distress on Driscoll.
The deputy’s main defense was that her actions were covered by qualified immunity, the documents said.
The judge said that the claim turns on whether Smiley reasonably believed that Driscoll had gasoline in the jug, an allegation that is disputed by Driscoll and by each independent witness.
“None of this is to suggest that Deputy Smiley would not have been justified in using any degree of force against Driscoll. Though, a reasonable juror viewing these facts in Driscoll’s favor could find Deputy Smiley’s use of deadly force unwarranted,” court documents said.
Smiley has since appealed this decision, and the case is pending in the U.S. Court of Appeals for the Sixth Circuit.
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