CLEVELAND, Ohio (WOIO) – The city of East Cleveland is asking a federal judge to dismiss a lawsuit filed by a man who was shot by one of its police officers in 2022.

Body camera footage of the incident shows Robert Banks Jr., 44, of East Cleveland, was unarmed and complying with the officer’s commands to put his hands up in the air when a bullet struck his left leg.

Banks is seeking significant financial damages from the city for the shooting, citing violations of his civil rights, emotional distress, assault, and negligence.

East Cleveland wants the lawsuit tossed out, arguing in a motion filed on May 18 that “police officers have qualified immunity.”

While the city admitted in its response that “Officer Andrew Majercik’s gun went off and a bullet grazed Mr. Banks’ left leg,” East Cleveland law director Willa Hemmons states the allegations made by Banks “are insufficient to defeat the grant of immunity provided a political subdivision and its employees.”

According to court records, the city has until 10 a.m. on May 29 to turn over copies of any video footage of Banks’ arrest, including police body camera footage, to his attorney.

The Shooting

19 Investigates obtained a copy of body camera footage from Banks’ arrest on March 18, 2022.

Around 6 a.m., officers were called to the back gate of an apartment complex located on Taylor Road for a report of a vehicle playing loud music.

Records from East Cleveland police state officers checked the vehicle’s registration when they arrived on scene and discovered the vehicle was stolen, prompting officers to “take tactical positions behind the drivers door of their police units.”

“Patrolman [sic] then begin to give audible commands from their police unit for the male to keep his hands up and slowly step out of the vehicle,” one investigator later wrote in a report.

But no officer ever actually used to the word “slowly” when ordering Banks to exit the car.

An officer tried to used a loudspeaker to communicated with Banks, but the officer said it was not working properly and shouts at the car instead.

“Driver of the black Hyundai, step out of the vehicle and put your hands up!”

Seven seconds pass, and the officer shouts again.

“Driver of the black Hyundai, step out with your hands up!”

Three seconds later, an officer says, “He’s twitching,” and then Banks is once more ordered to get out of the car.

“Driver of the black Hyundai, step out with your hands up!”

After the third command, a red break light on the car quickly flashes and then a door starts to open.

In less than two seconds, Banks puts both feet on the ground and stands up with his hands raised, just as an officer says, “Put your hands up!”

At that same moment, records show Officer Andrew Majercik fired his Glock 19 pistol.

Banks, with his hands still up in the air, began shouting, “Hey! Hey! I ain’t did nothing!”

Video shows the officer order Banks to turn around, walk backwards, and then drop to his knees, which Banks does while still keeping his hands raised.

“Oh my God, no. You shot me, man!” Banks said, kneeling on the ground as an officer handcuffed him.

Records show a bullet had grazed Banks, “striking him in the left leg at his calf muscle,” according to the lawsuit.

Initially, officers were confused about where the shot that hit Banks had come from.

“While waiting for the [EMS] squad Ptl. Majercik advised he had discharged his firearm,” one officer wrote in his report.

“East Cleveland Headquarters was advised shots had been fired, at first it was unknown where those shots came from,” another investigator noted. “After further body cam review it was learned that it was Patrolman Majercik that discharged his weapon.”

The Ohio Bureau of Criminal Investigation was called to the scene and conducted an independent review of the shooting.

After the completion of BCI’s investigation, the agency told 19 Investigates the findings were referred to East Cleveland city prosecutors on July 1, 2022.

While BCI investigates officer-involved shootings, the agency does not make a determination on whether or not a shooting was justified, or if an officer should be criminally charged or face internal discipline. Those determinations are made by city and county prosecutors, or the officer’s department.

The Cuyahoga County Prosecutor’s Office confirmed to 19 Investigates on Friday that East Cleveland never asked them to review the shooting for potential charges against the officer.

East Cleveland’s assistant law director, Heather McCollough, sent an email to the city’s then-police chief on July 6, 2022, after getting BCI’s report.

“It is clear that the shooting was improper,” she wrote. “However, only one shot was fired and due to the superficial nature of the wound, and the fact that the bullet only penetrated the car and not Banks, I believe that it would appropriate to handle this matter with internal discipline, and a civil case should Banks choose to file one.”

19 Investigates asked East Cleveland’s police and law departments if Majercik ever faced internal discipline.

“It appeared that the shooting was accidental and the matter could be dealt with internally,” McCollough wrote in an email to 19 Investigates on Friday. “However, it appears that the former Chief Gardner did not refer it for IA investigation.”

Scott Gardner, who is now off the police force, is currently facing criminal charges for financial crimes.

He is one of 18 current or former East Cleveland police officers indicted within the last year on charges related to public corruption and civil rights violations.

19 Investigates discovered the names of several of those officers in the investigative files related to the shooting of Robert Banks, including:

• Kyle Wood, listed as the supervisor who approved the investigative report
• Ian McInnis, listed on the call summary report
• Tre Dehart-Robinson, conducted area canvas following the shooting
• Brian Stoll, responded to the initial call, was present for the shooting
• Larry McDonald, took Majercik’s gun and body camera after the shooting, took photographs of the crime scene
• Daniel Toomer, listed as the booking officer following Banks arrest for a separate incident from Jan. 31, 2022

No officers have been charged in connection with the shooting of Robert Banks.

After Banks was released from the hospital following the shooting, he was arrested for receiving stolen property and taken to the East Cleveland Jail.

According to police records, he told officers he was unaware that the black Hyundai was stolen, and that he was intoxicated and “high on crack cocaine” at the time of his arrest.

Court records show he pleaded guilty to attempted receiving property in May 2022 and was sentenced to serve nine months at the Lorain Correctional Institution.

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