appeal from the Stark County Court of Common Pleas, Case No.
Plaintiffs-Appellees JOHN D. FALGIANI, JR.
Defendants-Appellants R. ERIC SMEARMAN.
W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E.
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
& Procedural History
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
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.
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."
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."
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.
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
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.
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.
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.
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.
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.
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.
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 ...