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Pisoni v. McCord

Court of Appeals of Ohio, Fifth District, Stark

January 9, 2018

JACLYN PISONI, ET AL Plaintiffs-Appellees
CHRISTOPHER MCCORD, ET AL Defendants-Appellants

         Civil appeal from the Stark County Court of Common Pleas, Case No. 2016CV01492

          For Plaintiffs-Appellees JOHN D. FALGIANI, JR.

          For Defendants-Appellants R. ERIC SMEARMAN.

          Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, J.


          Gwin, P.J.

         {¶1} Appellant appeals the June 2, 2017 judgment entry of the Stark County Court of Common Pleas denying portions of his motion for summary judgment and finding there are genuine issues of material fact as to whether he is immune from liability for false arrest, use of excessive force, and malicious prosecution.

         Facts & Procedural History

         {¶2} On July 10, 2015, appellant Christopher McCord ("McCord") an officer with the Alliance Police Department, observed an SUV following a van at what he thought was a close distance. McCord followed the vehicles. The driver of the SUV was appellee Jaclyn Pisoni ("Pisoni") and the driver of the van was her husband, Jerry Pisoni. The SUV pulled into a driveway and McCord continued to follow the van. After observing the driver of the van unsuccessfully negotiate two right-hand turns, driving over the curb each time, McCord initiated a traffic stop.

         {¶3} The parties dispute how Pisoni arrived on the scene of the traffic stop. Pisoni testified she observed the flashing lights, became concerned, and decided to drive over to see what happened. Pisoni stated she was driving at a normal rate of speed. McCord characterized Pisoni's approach as driving at an accelerated rate of speed. However, both agree that Pisoni parked on the left-hand side of the road, approximately ten feet in front of McCord's traffic stop. Pisoni's daughter was in the back seat of the SUV, strapped into a car seat.

         {¶4} McCord asked Pisoni's husband whether Pisoni had been drinking too and Jerry Pisoni stated, "No, she's just mad. She's mad at me." Pisoni parked and exited her vehicle, approaching the traffic stop. McCord asked, "Can I help you?" and Pisoni explained that the driver of the van was her husband. McCord stated, "Well, I am the police department and I don't need you pulling up to our stop like that." As Pisoni responded, she continued to walk towards McCord. McCord informed her she was parked illegally and said, "You see my fancy lights back here and my uniform? I am a police officer. Good bye."

         {¶5} Pisoni responded, "F*** you, " and began to walk away. McCord said, "good bye." Pisoni again stated, "f*** you" as she approached her vehicle and McCord again said "good bye." As Pisoni neared the front of her vehicle she turned around and displayed both of her middle fingers at McCord and said, "f*** yourself, " to which McCord asked, "You want to go to jail? Is that what you want to do?" Pisoni stated McCord could not do that and approached the door to her vehicle. McCord stated, "Actually, it's going to be a yes. Actually, you are obstructing my investigation." Pisoni opened her car door and next stated, "don't you touch me." McCord replied, "You're under arrest."

         {¶6} There is no dispute McCord placed Pisoni in a "come-along" hold. He repeated that she was under arrest and told her to "stop fighting." Pisoni replied, "I'm not." McCord then attempted to use a pain compliance control tactic, and both he and Pisoni fell to the ground. Pisoni claims she was then handcuffed, placed in the back of the police cruiser, and was "verbally berated and humiliated." She also claims she sustained physical injury.

         {¶7} Pisoni was charged with obstruction of official business, a felony of the fifth degree, and resisting arrest, a misdemeanor. The grand jury did not indict Pisoni on either of these charges, but instead indicted her on a charge of disorderly conduct, a fourth degree misdemeanor. The Stark County Common Pleas Court remanded the case to the Alliance Municipal Court for further prosecution. An Alliance Municipal Court jury found Pisoni not guilty of the charge of disorderly conduct.

         {¶8} On June 28, 2016, Pisoni filed a complaint against McCord, Chief of Alliance Police Scott Griffith ("Griffith"), and the City of Alliance, and included claims for false arrest, use of excessive force, malicious prosecution, intentional infliction of emotional distress, violation of her civil rights, and spoliation of evidence. McCord, Griffith, and the City of Alliance filed an answer on September 1, 2016, and stated the claims in the complaint were barred because of the doctrines of absolute and qualified immunity.

         {¶9} McCord, Griffith, and the City of Alliance filed a motion for summary judgment on March 27, 2017. Attached to the motion for summary judgment was the affidavit of McCord. McCord claims he was distracted from his traffic stop because of Pisoni's actions, that she may have been a threat, and that he did not want her to enter her vehicle because she may flee or retrieve a weapon.

         {¶10} McCord stated that as Pisoni's vehicle approached him, her husband indicated it was his wife and stated, "she's pissed at me." McCord averred Mr. Pisoni's comment and the proximity of Pisoni's vehicle was a "concern for his safety and his investigation." McCord stated when Pisoni exited her vehicle and began to approach him, his attention was not on the investigation of her husband, but was focused on Pisoni. McCord, "viewed her as a potential threat to me." McCord stated he asked Pisoni to leave, she said, "f*** you, " he told her "good bye, " and she stated "f*** you" again. McCord averred Pisoni continued back to her car, stopped in front of her SUV, raised both middle fingers toward him, and yelled "go f*** yourself, " which diverted his attention from Mr. Pisoni and interrupted his investigation.

         {¶11} McCord stated he approached Pisoni as she returned to her vehicle, asked her if she wanted to go to jail, she yelled something, and he said, "I guess that's a yes." McCord averred as he came closer to the vehicle, Pisoni opened the door of her vehicle. He told her she was obstructing his investigation and she again said "go f*** yourself." McCord stated he then told Pisoni she was under arrest and he began to reach for her arm for a "come along" hold. McCord stated Pisoni did not comply, tried to escape his grasp, and tried to enter the vehicle. McCord viewed this as an elevated level of resistance and he believes Pisoni's actions rose to Level 3, Dynamic Resistance. McCord averred that Pisoni continued to struggle, did not comply, and when he told her stop fighting, he also tried to use a pain compliance control technique. However, McCord's left ankle rolled at this time and both he and Pisoni fell to the ground.

         {¶12} McCord stated he charged Pisoni with obstructing official business and resisting arrest, and that each charge was elevated because of the physical harm he suffered, as his ankle was badly sprained.

         {¶13} Also attached to the motion for summary judgment was the affidavit of Griffith. He averred the attached document was an accurate copy of the Alliance Police Department's Standards, Operations, Policies, and Procedural Manual.

         {¶14} The manual provides the level of force used, "must be necessary and proportional (i.e. reasonable) to the degree of the threat and resistance under the circumstances existing at the time of its use." Further, that the "level of force must be objectively reasonable as judged by a reasonable officer under the particular circumstances existing at the moment of its use." The manual lists non-physical resistance as verbal expressions, physical gestures, and behaviors that reasonably convey an intent not to comply with a lawful order. Dynamic resistance is defined as action taken to break away, escape, or evade control with no overt act that would reasonably convey an intent to ...

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