[Cite as Edvon v. Morales, 2018-Ohio-5171.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106448
RICHARD EDVON
PLAINTIFF-APPELLEE
vs.
ALEJANDRO MORALES, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-875411
BEFORE: Keough, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: December 20, 2018 ATTORNEYS FOR APPELLANTS
Todd M. Raskin David M. Smith Frank H. Scialdone Mazanec Raskin & Ryder Co., L.P.A. 100 Franklin’s Row 34305 Solon Road Cleveland, Ohio 44139
ATTORNEYS FOR APPELLEE
Raymond Vasvari K. Ann Zimmerman Vasvari & Zimmerman 1100 Erieview Tower 1301 East Ninth Street Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendants-appellants, Parma Heights police officers John Vinkler, Jack Darnell,
Adam Sloan, and Ron Felkonis (collectively “appellants” or “the officers”) appeal the trial
court’s in-part denial of their motion for summary judgment. For the reasons that follow, we
reverse and remand with instructions for the trial court to enter judgment in favor of appellants.
I. Underlying Facts
{¶2} In August 2014, plaintiff-appellee, Richard Edvon, lived with his girlfriend and two
young children, one of whom is autistic. According to Edvon, he was not working because his
autistic son required “a lot of care,” necessitating him to “be home 24 hours a day with him.”
{¶3} Around 4:00 p.m. on August 12, 2014, Edvon was in his apartment with his sons
when he heard arguing in the hallway that escalated after a few minutes. Edvon stated that he heard a girl screaming for help and for someone to call the police. When he looked through the
peephole of his door, he saw “what appeared to be an [adult man] pulling [a girl] away from the
door [to the apartment across the hallway].” Edvon stated “there [were] a couple big bangs and
[then] * * * the screams turned muffled like someone was covering her face or something.”
Edvon stated that he “put [his] kids in the far room and shut the door and told them to stay
there.” He said that he tried looking for his phone to call the police, but that the “screams got so
loud and desperate” that he felt the need to “step in.” As a result, he grabbed his loaded Smith
& Wesson M&P .40 caliber — for which he had a concealed-carry permit — opened his
apartment door, and pointed the gun at the man, who was later identified as his neighbor,
Alejandro Morales.
{¶4} Edvon said the “man [was] over top [of the] girl against the wall of the hallway right
next to [his] door,” and that the man “had his arm wrapped in her hair [and] [h]is left arm was
over her mouth and her face and her nose[.]” Edvon said he told the man, “Get off of her[,]”
but that the man “kept holding onto her hair” and “did not let go.” According to Edvon, the
man told him that the girl was his daughter and that he was trying to stop her from running away.
Edvon said he responded that he did not know who the man was and to let the girl go.1 The
man told Edvon to call the police, who would tell him that it was his daughter, but Edvon
explained that he could not find his phone. When Edvon told the man to call the police on the
man’s own cell phone, the man refused and said “[he would] go inside. We go inside. I’ll
take care of her. We’ll be okay. Everything will be okay. I’m sorry. I’m sorry.”
1 In his complaint, Edvon explains that he did not know the Moraleses despite living directly across the hallway “because of the schedules and comings-and-goings of the parties[.]” He also stated that at the time of the incident, he did not “know * * * the identities nor the relationship between the Morales[es].” {¶5} At that point, Alejandro’s two other daughters walked down the hallway and told
Edvon that the girl was Alejandro’s daughter and that she was “a problem child.” Edvon said
that the other individuals began speaking in another language, but that it seemed like they were
arguing with one another. Edvon told them “You guys just need to take care of this in your
apartment. Take care of this. This is not my business[.]” According to Edvon, they
apologized, Alejandro shook his hand, and they all went inside their apartment across the
hallway.
{¶6} Parma Heights police officers Vinkler, Darnell, Sloan, and Felkonis responded to a
disturbance call at the apartment complex. When they arrived, they spoke with the Morales
family. Officers Felkonis and Vinkler spoke with the then-teenage daughter, Regine, and
Officers Darnell and Sloan spoke with the father, Alejandro. The officers testified at deposition
that their department had responded to the Morales apartment on prior occasions for complaints
about Regine, referring to her as an “habitual runaway.” Both Alejandro and Regine told the
officers that they had been wrestling with one another in the hallway because Regine was trying
to run away.
{¶7} During the course of their investigation, the officers learned that the neighbor across
the hall, later identified as Edvon, pointed a gun at them during the altercation in the hallway.
The Moraleses stated that they wished to prosecute the neighbor for his actions. Based on that
information, the officers walked across the hall to investigate the allegation.
{¶8} Edvon opened the door and the officers observed two small children in the
apartment. According to Edvon, he did not let the officers inside his apartment, which caused
the officers to get upset. Instead, Edvon walked into the hallway and locked the apartment door
behind him, leaving his children inside. Upon questioning, Edvon admitted that he pointed his gun at Alejandro after he refused to let go of the girl. He further advised the officers that he had
a valid conceal and carry permit. Edvon stated at deposition that he tried to explain his
justification for doing so, but the officers would not hear his side of the story.
{¶9} The officers admitted that Edvon was cooperative and there were not any
discrepancies in the version of events between the parties. During the discussion, the officers
learned that Edvon’s two small children were present inside the apartment when he opened the
door and confronted Alejandro with the gun. The officers admitted, however, that they did not
know where the children were during the “gun-pointing” incident. According to Edvon, the
officers told him he was being neglectful by locking his unattended children inside the apartment
while he was outside in the hallway speaking with the officers.
{¶10} Officer Felkonis stated that based on the admission by Edvon that he pointed a gun
at the Moraleses and that the Moraleses wanted to prosecute him for doing so, they arrested
Edvon for aggravated menacing. Alejandro subsequently signed the complaint that charged
Edvon with aggravated menacing. Edvon was also charged with child endangering after
Officers Vinkler and Felkonis returned to the police station and discussed the facts and
circumstances with their supervisor, Sergeant Cyril.
{¶11} In June 2015, all charges against Edvon were dismissed without prejudice.
II. Procedural Background
{¶12} In 2015, Edvon sued the Moraleses and the officers. The complaint was
voluntarily dismissed and in February 2017, Edvon refiled his complaint setting forth claims for
defamation against the Moraleses, and malicious prosecution against the officers in both their
official and individual capacities. Edvon alleged that he “suffered, and continues to suffer,
damages including having been effectively evicted from his apartment, the costs associated with relocation and his criminal defense, humiliation, emotional pain and suffering, emotional distress
and mental anguish, and loss of reputation and standing in the community.”
{¶13} The officers answered the complaint and set forth affirmative defenses, including a
claim of immunity under R.C. Chapter 2744. Following discovery, the officers filed a joint
motion for summary judgment asserting that they were entitled to statutory immunity in both
their official and individual capacities.
{¶14} The trial court granted summary judgment in part on “the basis of immunity under
R.C. 2744.02 on [Edvon’s] claims against the [officers] in their official capacties[,]” but denied
the officers’ motion in part “on [Edvon’s] claims against [them] in their individual capacities.”
{¶15} Appellants now appeal, raising as their sole assignment of error that the trial court
erred when it denied their motion for summary judgment, finding that they were not entitled to
individual immunity under R.C. 2744.03(A)(6).2
III. Summary Judgment Standard
{¶16} An appellate court reviews a trial court’s decision to grant summary judgment de
novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, we afford no deference to the trial court’s decision and independently review the
record to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v.
Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).
{¶17} The party moving for summary judgment bears the burden of demonstrating that no
material issues of fact exist for trial. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d
264 (1996). The moving party bears the initial responsibility of informing the trial court of the
2 Edvon did not appeal the trial court’s grant of summary judgment to the officers on their claim of immunity in their official capacities. Further, this appeal does not concern Edvon’s claims against the Moraleses. basis for the motion, and identifying those portions of the record that demonstrate the absence of
a genuine issue of material fact on the essential elements of the nonmoving party’s claims. Id.
After the moving party has satisfied this initial burden, the nonmoving party has a reciprocal duty
to set forth specific facts by the means listed in Civ.R. 56(C) showing that there is a genuine
issue of material fact. Id.
{¶18} Summary judgment is appropriate when, construing the evidence most strongly in
favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party
is entitled to judgment as a matter of law; and (3) reasonable minds can only reach a conclusion
that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,
369-370, 696 N.E.2d 201 (1998).
IV. Political Subdivision Immunity
{¶19} Generally, individual employees of a political subdivision, such as the officers in
this case, are immune in their individual capacities from civil actions “to recover damages for
injury, death, or loss to person or property allegedly caused by any act or omission in connection
with a governmental or proprietary function[.]” R.C. 2744.03(A).3 Therefore, we presume that
an employee of a political subdivision has immunity. Knox v. Hetrick, 8th Dist. Cuyahoga No.
91102, 2009-Ohio-1359, ¶ 21.
{¶20} There are, however, exceptions to this immunity. Employees of a political
subdivision are not entitled to immunity if
(a) [t]he employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities; (b) [t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil liability is expressly imposed upon the employee by a section of the Revised Code.
3 The parties do not dispute that the city of Parma Heights is a political subdivision under R.C. 2744.01(F). R.C. 2744.03(A)(6).
{¶21} Each officer’s conduct is typically analyzed separately when determining whether
immunity applies. See Estate of Graves v. Circleville, 179 Ohio App.3d 479, 2008-Ohio-6052,
902 N.E.2d 535, ¶ 29-35 (4th Dist.) (analyzing whether the two officers and the dispatcher were
entitled to immunity separately). However, the evidence in this case reveals that all of the
officers were involved in at least the arrest of Edvon and, therefore, we can analyze the officers’
immunity collectively.
{¶22} Edvon did not allege in the trial court — and does not allege here — that the
officers were acting outside the scope of their employment as police officers. Instead, he
contends that the officers acted with a malicious purpose, in bad faith, or in a wanton or reckless
manner.
{¶23} The trial court found that there was a genuine issue of material fact as to Edvon’s
malicious prosecution claim against the officers — specifically, whether the officers’ decision to
file charges against Edvon for aggravated menacing and child endangering was made with
malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶24} To sustain a claim of malicious prosecution, one must prove “(1) malice in
instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the
prosecution in favor of the accused.” Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 144,
559 N.E.2d 732 (1990). “[I]n an action for malicious prosecution, the want of probable cause is
the gist of the action. If such be proven, the legal inference may be drawn that the proceedings
were actuated by malice.” Melanowski v. Judy, 102 Ohio St. 153, 131 N.E. 360 (1921),
paragraph one of the syllabus. Accordingly, the issue becomes whether the officers had probable cause to arrest and subsequently charge Edvon for aggravated menacing and child
endangering.
{¶25} “Probable cause exists where the facts and circumstances within [the officers’]
knowledge and of which they had reasonably trustworthy information are sufficient in themselves
to warrant a [person] of reasonable caution in the belief that an offense has been or is being
committed.” Knox, 8th Dist. Cuyahoga No. 91102, 2009-Ohio-1359, ¶ 46. These facts and
circumstances must exist at the time of arrest and charge, not in hindsight or upon reflection.
See, e.g., State v. Wac, 68 Ohio St.2d 84, 88, 428 N.E.2d 428 (1981) (hindsight neither vindicates
nor vitiates the actions of the arresting officer); State v. Pfeiffer, 12th Dist. Butler No.
CA2003-12-329, 2004-Ohio-4981, ¶ 22 (offender’s explanation for why he violated a traffic law
does not obviate the conclusion that the officer had probable cause to believe a violation
occurred). Therefore, if an officer has a real belief and reasonable grounds for the belief,
probable cause exists despite the ultimate outcome of the case. State v. Vance, 2d Dist. Clark
No. 2246, 1987 Ohio App. LEXIS 6972, 7 (May 11, 1987); Bock v. Cincinnati, 43 Ohio App.
257, 183 N.E. 119 (1st Dist.1931); Ryan v. Conover, 59 Ohio App. 361, 18 N.E.2d 277 (1st
Dist.1937); State v. Gross, 7th Dist. Mahoning No. 01-C.A.-115, 2002-Ohio-3465, ¶ 35 (the
accused does not actually have to commit a crime for the arresting officer to possess probable
cause).
A. Aggravated Menacing
{¶26} The officers argue that no genuine issue of material fact exists regarding whether
they acted with malice, in bad faith, or in a reckless or wanton manner because they had probable
cause to arrest Edvon for aggravated menacing based on Alejandro’s and Regine’s statements
and Edvon’s admission that he pointed a gun at them. In response, Edvon argues that there is a genuine issue of material fact as to whether the officers acted with malice, in bad faith, or in a
reckless or wanton manner because they “refused to hear his side of the story” or explore whether
Edvon’s actions were justified by the “defense of others” defense. We disagree.
{¶27} R.C. 2903.21(A), the aggravated menacing statute, states, “No person shall
knowingly cause another to believe that the offender will cause serious physical harm to the
person or property of the other person * * * or the other person’s immediate family.”
Accordingly, “[t]he charge of aggravated menacing is subjective in nature. It is based upon what
the accused caused another to believe.” Finn v. Amelia, 12th Dist. Clermont No. CA88-10-073,
1989 Ohio App. LEXIS 1030, *5 (Mar. 27, 1989).
{¶28} In this case, both Alejandro and Regine gave written statements on the day of the
incident that they wished to prosecute Edvon because he caused them to believe that he would
cause them serious physical harm when he exited his apartment and knowingly pointed his
firearm at them — two people Edvon admittedly did not know. Their statements, along with the
admission by Edvon that he pointed his gun at them, gave the officers probable cause to arrest
and charge Edvon for aggravated menacing. Alejandro, as the affiant, also signed the
aggravated menacing complaint against Edvon. Accordingly, the officers satisfied their initial
burden under Civ.R. 56.
{¶29} Edvon does not create a genuine issue of material fact by asserting that the officers
“refused to hear his side of the story” or explore whether Edvon’s actions were justified by the
“defense of others” defense. “[O]fficers do not have to conduct pre-arrest quasi-trials in every
situation wherein the subject asserts a purported legal excuse for his actions.” Painter v.
Robertson, 185 F.3d 557, 571 (6th Cir.1999), fn. 21. {¶30} Moreover, whether Edvon has a potential affirmative defense does not vitiate
probable cause. While “a police officer ‘may not ignore information known to him which
proves that the suspect is protected by an affirmative legal justification[,]’” “when a suspect
asserts an affirmative defense, this does not automatically vitiate probable cause. The officer is
not required to accept the explanation without question[.]” Frodge v. Newport, 501 Fed.Appx.
519, 527 (6th Cir.2012), quoting Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir.2002). “Even
if the circumstances suggest that a suspect may have an affirmative defense, if a reasonable
officer would not ‘conclusively know’ that the suspect is protected by the defense, then [the
officer] is free to arrest the suspect provided there is probable cause to do so.” Fridley at id.
{¶31} It is well established that when making an arrest, police officers are not required to
“inquire into facts and circumstances in an effort to discover if the suspect had an affirmative
defense.” Id.; State v. Fields, 4th Dist. Athens No. 96CA1742, 1996 Ohio App. LEXIS 5558,
22-23 (Dec. 2, 1996), citing State v. Williams, 9th Dist. Summit No. 16418, 1995 Ohio App.
LEXIS 4898 (Nov. 1, 1995), and Weible v. Akron, 9th Dist. Summit No. 14878, 1991 Ohio App.
LEXIS 2179 (May 8, 1991) (“[A]n officer is not required to evaluate the applicability of an
affirmative defense before acting upon probable cause.”); Jones v. Washington, 67 Ohio App.3d
176, 183, 586 N.E.2d 228 (6th Dist.1990) (“[T]he raising of an affirmative defense is not a bar to
the filing of a criminal complaint if probable cause exists to file the charges.”).
{¶32} Although Edvon may have believed that Regine was in danger, the Moraleses
advised the officers that Regine was attempting to run away. Additionally, the officers’ report
indicated that Alejandro was preventing his known habitual-runaway daughter from leaving the
apartment. Accordingly, the officers had information at the time of the incident that Regine
caused the incident; thus the defense-of-others defense might reasonably be unavailable. See, e.g., State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 38 (if the person aided
is the one at fault in creating the affray, the actor is not justified in the use of force). Therefore,
Edvon’s assertion that he possibly had an affirmative defense does not create a genuine issue of
material fact to survive summary judgment on the issue of whether the officers lacked probable
cause.
{¶33} The dissent attempts to create a genuine issue of material fact by completely
ignoring the undisputed fact that the Moraleses wished to prosecute Edvon for aggravated
menacing and that Alejandro actually was the complaining party who signed the complaint
against Edvon. These undisputed facts reveal that even if the officers did not arrest Edvon for
aggravated menacing, the Moraleses were, and actually did, pursue charges against Edvon for his
admitted actions of pointing a loaded gun at them.
{¶34} Accordingly, based on the evidence and deposition testimony, the officers had
probable cause to arrest and charge Edvon for aggravated menacing.
B. Child Endangering
{¶35} The officers contend that no genuine issue of material fact exists regarding whether
they acted with malice, in bad faith, or in a reckless or wanton manner because they had probable
cause to charge Edvon with child endangering based on their observations, and Edvon’s
admission, that he pulled a gun on an unknown risk and danger in the hallway while he was
caring for his children inside the apartment.
{¶36} In response, Edvon contends that a genuine issue of material fact exists because the
officers admittedly did not know where the children were when he confronted the Moraleses with
his gun in the hallway, and his children were placed in the back bedroom before he retrieved his
firearm and confronted the Moraleses. Edvon maintains that at no time were his children in any danger. He asserts that the officers only charged him with child endangering because he denied
the officers access to his apartment. Edvon stated at deposition that he refused to let the officers
inside his apartment, but instead talked with them in the hallway after locking his children inside
the apartment.
{¶37} Pursuant to R.C. 2919.22, “no person, who is the parent * * * of a child under
eighteen years of age or a mentally or physically handicapped child under twenty-one years of
age, shall create a substantial risk to the health or safety of the child, by violating a duty of care,
protection, or support.” Put simply, to establish child endangering, the state must show that a
defendant “(1) recklessly (2) created a substantial risk to the health or safety of one or more of
his children (3) by violating a duty of care, protection[,] or support.” Cleveland Hts. v. Cohen,
8th Dist. Cuyahoga No. 101349, 2015-Ohio-1636, ¶ 25.
{¶38} In this case, the officers had probable cause to charge Edvon for child endangering
based on the circumstances known to them at the time of the incident. Edvon’s attempt to
justify his actions or prove that his children were not in danger does not negate an officer’s
probable cause to issue a charge of child endangering. We are mindful that probable cause is
not the same as proof beyond a reasonable doubt. See Huber v. O’Neill, 66 Ohio St.2d 28, 30,
419 N.E.2d 10 (1981). What the city must prove to secure a conviction against Edvon is not the
same as whether “the facts and circumstances within [the officers’] knowledge and of which they
had reasonably trustworthy information are sufficient in themselves to warrant a [person] of
reasonable caution in the belief that an offense has been or is being committed.” Knox, 8th Dist.
Cuyahoga No. 91102, 2009-Ohio-1359, ¶ 46.
{¶39} As Officer Vinkler stated at deposition, Edvon was charged with child endangering
because: [Edvon] felt that he needed to bring a gun out into the hallway for that said commotion not knowing what was going on or what was happening. So they could have easily pulled the gun on him, shot him or started firing bullets back at him. So he created a risk that if he was to be injured, he couldn’t take care of his children.
Admittedly, the officers said at deposition that they did not know where Edvon’s children were at
the time of the incident or when he opened the door and pointed the gun at the Moraleses. But
according to the police investigative report that was drafted on the day of the incident and arrest,
Officer Vinkler stated:
Edvon said he heard a disturbance in the hallway and heard someone yelling, “Help call the police.” Edvon said that instead of calling the police he grabbed his gun and pointed it at Alejandro and Regine. He said that he had his two children inside his apartment when he opened his door and pointed the gun at them. His two children are * * * age 6 * * * and * * * age 3. The door was open and the children were playing right behind Richard Edvon when this incident occurred. Richard Edvon was placed under arrest after speaking with him.
{¶40} The fact that neither Edvon nor his children were harmed or that the Moraleses did
not overtake him or his gun does not vitiate probable cause for child endangering. The question
the officers faced at the time was whether Edvon recklessly created a substantial risk to the health
or safety of his children by violating a duty of care or protection when he opened the door of his
apartment to point his weapon at an unknown male fighting with an unknown female in the
hallway. Based on the officers’ observations and the facts and circumstances known to them at
the time, the officers had probable cause to charge Edvon with child endangering. Moreover,
Officers Vinkler and Felkonis testified that Edvon was only charged with child endangering after
returning to the police station and conferring with and relaying the facts and circumstances to
their sergeant, who was not named as a party defendant.
{¶41} The dissent takes issue that the majority opinion does not construe the evidence in
the light most favorable to Edvon. However, the only evidence Edvon offers is based on speculation and conjecture. “‘Mere speculation and unsupported conclusory assertions are not
sufficient’ to meet the nonmovant’s reciprocal burden under Civ.R. 56(E) to withstand summary
judgment.” Wilimington Trust N.A. v. Boydston, 8th Dist. Cuyahoga No. 105009,
2017-Ohio-5816, ¶ 31, quoting Loveday v. Essential Heating Cooling & Refrigeration, Inc., 4th
Dist. Gallia No. 08CA4, 2008-Ohio-4756, ¶ 9. Accordingly, Edvon’s belief, without more, is
insufficient to create a genuine issue of material fact to defeat summary judgment.
{¶42} Based on the undisputed evidence, Edvon’s admissions, and relevant legal
standards and rules of law, probable cause existed to charge him with both aggravated menacing
and child endangering. Accordingly, Edvon’s claim for malicious prosecution fails as a matter
of law. Barnes v. Meijer Dept. Store, 12th Dist. Butler No. CA2003-09-246, 2004-Ohio-1716,
citing Davis v. Peterson, 9th Dist. Summit No. 16883, 1995 Ohio App. LEXIS 1284 (Mar. 29,
1995). The officers are entitled to summary judgment on their individual immunity claims; thus,
the trial court erred in denying the officers’ motion for summary judgment in its entirety. The
assignment of error is sustained.
{¶43} Judgment reversed and remanded with instructions for the trial court to enter
judgment in favor of the officers.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., J., CONCURS; MARY J. BOYLE, P.J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, P.J., DISSENTING:
{¶44} Because the majority weighs the evidence, determines credibility, and resolves
genuine issues of material fact in favor of the moving parties instead of determining whether
genuine issues of material fact exist as the law requires, I respectfully dissent.
{¶45} The majority undermines well-established summary judgment law that cautions the
grant of summary judgment, demands that the trial court construe evidence in a light most
favorable to the nonmoving party, and requires denying a motion for summary judgment when
conflicting facts and inferences exist. Considering the conflicting nature of Edvon’s version of
events and the officers’ versions of events and looking at the evidence in a light most favorable
to Edvon, as we are required to do, it is obvious from the record that genuine issues of material
fact exist as to whether the officers had probable cause to charge him with child endangering and
aggravated menacing, therefore precluding summary judgment. For reasons more fully
explained below, I would find that genuine issues of material fact exist when deciding the
officers’ claims for individual immunity, overrule the officers’ assignment of error, and affirm
the trial court’s denial of the officers’ motion for summary judgment as to their individual
immunity.
Standard of Review
{¶46} “While summary judgment is a beneficial procedure aiding in the swift
administration of justice, it must also ‘be used cautiously and with the utmost care so that a
litigant’s right to a trial * * * is not usurped in the presence of conflicting facts and inferences.’” Fifth Third Mtge. Co. v. Perry, 4th Dist. Pickaway No. 12CA13, 2013-Ohio-3308, ¶ 35, quoting
Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 467 N.E.2d 1378 (6th Dist.1983). “‘It is
imperative to remember that the purpose of summary judgment is not to try issues of fact, but
rather to determine whether triable issues of fact exist.’” Id., quoting Viock.
{¶47} Whether an employee of a political subdivision acted with malice, in bad faith, or
in a reckless or wanton manner, is generally a question of fact for the jury. See Gilbert v.
Cleveland, 8th Dist. Cuyahoga No. 99708, 2013-Ohio-5252, ¶ 15, quoting Hunter v. Columbus,
139 Ohio App.3d 962, 746 N.E.2d 246 (10th Dist.2000) (“Because the line between willful or
reckless misconduct, wanton misconduct, and ordinary negligence can be a fine one, ‘the issue of
whether conduct was willful or wanton should be submitted to the jury for consideration * * *
when reasonable minds might differ as to the import of the evidence.’”).
{¶48} Because the question of whether an employee acted with bad faith or in a malicious
or wanton manner “explicitly focuses on the employee’s state of mind[,]” “[i]t does not readily
lend itself to summary disposition.” Chesher v. Neyer, 477 F.3d 784, 797 (6th Cir.2007); Condit
v. Clermont Cty. Rev., 93 Ohio App.3d 166, 174, 638 N.E.2d 96 (12th Dist.1994), citing
Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). “[Q]uestions of
fact regarding immunity are enough to overcome summary judgment.” Knox v. Hetrick, 8th
Dist. Cuyahoga No. 91102, 2009-Ohio-1359, ¶ 37.
While the issue of immunity is a question of law, * * * the trial court is required to consider specific facts of the case in order to resolve the issue. When an issue turns upon the credibility of a witness because his testimony must be believed to resolve the issue and the surrounding circumstances place the credibility of the witness in question, the matter should be resolved by the trier of fact.
Lowry v. State Hwy. Patrol, 10th Dist. Franklin No. 96API07-835, 1997 Ohio App. LEXIS 679,
13 (Feb. 27, 1997). “Thus, a trial court may not grant summary judgment on the basis of R.C. 2744.03(A)(6) immunity unless * * * reasonable minds could conclude only that the employee
did not act in a wanton or reckless manner.” Id.
Child Endangerment
{¶49} Turning first to the child endangerment charge, Edvon’s account of the events
leading to the officers charging him with child endangering differs greatly with the version set
forth by the officers.
{¶50} According to Edvon, the officers wanted to speak to him inside his apartment.
Edvon told police that he would come outside of his apartment to speak with them, but that they
could not enter his apartment. Edvon said the police “were very unhappy [because] [t]hey
didn’t want to do it outside.” He said, “They were repeatedly asking me why I want to be
outside. They put their foot in the door. I told them not to enter, but they put their foot in the
door.”
{¶51} Edvon said that when he went into the hallway and closed the door to his
apartment, one of the officers asked him “why [he was] going to leave [his] kids inside of the
apartment and that it is illegal to do so, that [he was] endangering [his] kids by leaving them in
the apartment.” He said he told the officers, “I’m out here just talking to you guys. I have
my keys right here. They’re just right inside the apartment.” He said one of the officers told
him “That doesn’t matter. That’s neglect.” Edvon went on to describe his interaction with the
officers and their questioning as follows:
I was being barraged by two officers at once. * * * [T]he other officer who was asking me about my children told me that I need to answer him or they’re going to place me under arrest, and I said “I’m getting asked by two people at once. I can’t talk to both of you.” While I was saying that to the other officer, the other officer who was asking me about what happened demanded that I answer him or I’m going to be placed under arrest. So I have two officers demanding that I answer them on different subjects or that I will be placed under arrest. {¶52} The officers deny Edvon’s account and describe their interaction and basis for charging Edvon with child endangering much differently. Officer Vinkler stated that they charged Edvon for child endangering because
[Edvon] felt that he needed to bring a gun out into the hallway for that said commotion not knowing what was going on or what was happening. So they could have easily pulled the gun on him, shot him or started firing bullets back at him. So he created a risk that if he was to be injured, he couldn’t take care of his children.
Officer Vinkler noted, however, that Edvon was not injured and that the Moraleses did not take
his gun.
{¶53} Officer Felkonis explained that Edvon endangered his children “[b]y opening his
door to an unknown danger, by entering a weapon into the equation, and not supervising his
children.” When asked what he meant when he said that Edvon was not supervising his
children, Officer Felkonis said, “He’s not paying attention to the children because he’s focused
on pointing a loaded gun at two people in the hallway.” The following exchange also occurred
during Officer Felkonis’s deposition:
Q. So part of the risk that he created to his children was these unknown people who were causing trouble in the hallway might have disarmed him, come into the apartment and hurt him or the children? A. Or grabbed the gun and started shooting.
Q. And he had no way of knowing whether those people were armed when he opened the door?
A. Correct. Unless he looked through the peephole. I can’t speak to what he saw.
{¶54} All of the officers said that they did not know where Edvon’s children were at the
time of the incident or, specifically, when Edvon opened his door and pointed the gun at the
Moraleses. Edvon, however, said that he safely and securely placed his children in the back
room and closed the door before he took out his handgun and confronted the situation in the
hallway. {¶55} With those conflicting accounts in mind and based on the majority’s conclusion, it
is important to reiterate black-letter law that states,
In summary judgment proceedings, a court may not weigh the evidence or judge the credibility of sworn statements, properly filed in support of or in opposition to a summary judgment motion, and must construe the evidence in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). * * * When trial courts choose between competing affidavits and testimony, they improperly determine credibility and weigh evidence contrary to summary judgment standards. Finn v. Nationwide Agribusiness Ins. Co., 3d Dist. Allen No. 1-02-80, 2003-Ohio-4233, P 39.
Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. Cuyahoga No. 102119, 2016-Ohio-1466, ¶
93.
{¶56} Further, as the Ohio Supreme Court recognized
[c]redibility issues typically arise in summary judgment proceedings when one litigant’s statement conflicts with another litigant’s statement over a fact to be proved. Since resolution of the factual dispute will depend, at least in part, upon the credibility of the parties or their witnesses, summary judgment in such a case is inappropriate.
Turner v. Turner, 67 Ohio St.3d 337, 341, 617 N.E.2d 1123 (1993).
{¶57} The majority ignores those long-standing and well-understood principles and
instead improperly resolves the conflicting accounts between the parties and weighs the evidence
against Edvon, the nonmoving party.
{¶58} Here, Edvon provided evidence that the officers did not arrest him because he
pointed a gun at the Moraleses with his children present, but instead because he was endangering
his children by leaving them inside his apartment alone while he spoke with officers immediately
outside his apartment. In fact, according to Edvon, the officers told Edvon that he was
endangering his children before he admitted to pointing the gun at the Moraleses. Edvon
testified that the officers charged him with child endangering only because they were unhappy
that he denied their request to come inside his apartment. But the majority looks the other way. In fact, in its entire analysis of the child endangering charge, the majority does not discuss
Edvon’s account or evidence, only discussing the evidence set forth by the police officers that
supports its conclusion.
{¶59} To summarize, the majority adopts the moving party’s version of events, ignores
evidence tending to establish that the officers acted in bad faith or in a wanton or malicious
manner, and bases its reversal on its finding that the officers had probable cause to arrest Edvon
for child endangering. Yet, the only way that the majority can reach that finding is by weighing
the evidence and determining that the officers’ version of events is more credible than Edvon’s
version of events. This is certainly not proper to do at this stage of the proceedings.
{¶60} Therefore, after construing all of the evidence in favor of Edvon, as Civ.R. 56
requires us to do, I would conclude that genuine issues of material fact exist as to whether the
officers are entitled to individual immunity. I would conclude that the trial court properly found
genuine issues of material fact regarding whether the officers acted in bad faith in a malicious or
wanton manner and that Edvon deserves a hearing before a trier of fact on that important issue.
As a result, specifically concerning the officers’ decision to charge Edvon with child
endangering, I would affirm the trial court’s denial of the officers’ motion for summary judgment
based on their claim of individual immunity.
Aggravated Menacing
{¶61} The second charge that the officers filed against Edvon was for aggravated
menacing in violation of R.C. 2903.21(A). This charge does not raise the same factual concerns
as those underlying the child endangering charge. In fact, all of the facts underlying the charge
for aggravated menacing are undisputed by both parties. {¶62} Nevertheless, I disagree with the majority’s conclusion that the officers had
probable cause to arrest and charge Edvon for aggravated menacing.
{¶63} In Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th Cir.1999), the Dietrichs
(father and son) worked as private armed money couriers. The father was also a full-time police
officer and had recently spoken to a number of officials about his side job. One day, while
driving during one of their shifts as money couriers, the Dietrichs noticed they were being
followed by a police officer, who eventually pulled them over. A number of officers
approached the car and asked whether the Dietrichs were carrying concealed weapons, which
they both admitted they were. As a result, the officers arrested the Dietrichs “on weapons
charges.” Id. at 1010. The prosecutor eventually dropped the charges, and the Dietrichs
filed suit against the officers under 42 U.S.C. 1983 and under state law for false arrest and
intentional infliction of emotional distress. The officers moved for summary judgment under
the doctrine of qualified immunity, but the trial court denied the motion, and the officers
appealed.
On review, the Sixth Circuit found that the officers knew prior toarresting the Dietrichs, that the plaintiffs were legitimately armed for the purpose of conducting a business that was particularly susceptible to criminal attack. * * * In fact, affidavits submitted by the defendants established their knowledge of the fact that the Dietrichs would be armed because of the security requirements of their courier positions.
Id. at 1011. The court also stated, “[T]he officers in this case had full knowledge of facts and
circumstances that conclusively established, at the time of Dietrichs’ arrests, that the plaintiffs
were justified — by statute — in carrying concealed weapons during their work.” (Emphasis
added.) Id. at 1012. The court concluded, “Consequently, none of the defendants had
probable cause at the time of the arrests to believe the plaintiffs had violated, were violating, or
were about to violate the law.” Id. {¶64} Contrastingly, in Frodge v. Newport, 501 Fed.Appx. 519 (6th Circ.2012), the two
plaintiffs, a male and a female, got involved in a road dispute with another vehicle. When the
plaintiffs’ vehicle came to a stop at a traffic light, one of the male passengers from the other
vehicle, which was stopped behind the plaintiffs, got out, kicked the plaintiffs’ car, and
threatened the plaintiffs. The plaintiffs exited their vehicle and got into a physical altercation
with the male individual. Two officers witnessed the fight between the three individuals and
ran over to separate them. The officers placed both males under arrest. The male plaintiff
explained to the officer that the other male had attacked him and had damaged their vehicle.
One of the officers examined the vehicle and noticed damage, “but [later] testified that he did not
know how it got there.” Id. at 523. The female plaintiff was also trying to explain her side of
the story — that the other male individual instigated the fight — while the male plaintiff was
being arrested. Both plaintiffs were ultimately arrested and charged with disorderly conduct.
They went to trial and were acquitted of their charges. The plaintiffs then filed suit against one
of the officers for false arrest and malicious prosecution. The trial court granted the officer
immunity, and the plaintiffs appealed.
{¶65} On appeal, the plaintiffs argued that “their assertion of the affirmative defense of
self-defense should have precluded [the officer] from arresting them” and pointed out that the
officer “did not ask them their side of the story and did not consider the damage to their car.”
Id. at 528. The Sixth Circuit found that the officer had probable cause to arrest the plaintiffs
and recognized that the officer was “not aware of any affirmative defense of self-defense until
after [the male plaintiff] had been arrested. Thus, this defense did not negate the finding of
probable cause as to [the male plaintiff.]” As to the female plaintiff, the Sixth Circuit found
that there was “no evidence that would have enabled [the officer] to ‘conclusively know’ that Plaintiffs were protected by their claim of self-defense.” Id. The court stated that the officer
“only observed the fight after [the other male] had kicked the car. Though [the other officer]
looked at the Mustang for damage and could see some damage to the car, he had no way of
knowing whether this was caused by [the other male] as [the male plaintiff] had alleged.” Id.
{¶66} The Sixth Circuit distinguished its previous holdings in Dietrich and Gardenhire v.
Schubert, 205 F.3d 303 (6th Cir.2000), finding that “in those cases[,] the police officers were
able to verify information, prior to arrest, that vitiated the officers’ finding of probable cause,
but proceeded to arrest the plaintiffs nonetheless.” (Emphasis sic.) Id.4 It said, “Here, [the
officer] was unable to verify Plaintiffs’ claims of self-defense prior to arrest. There was no
evidence available to [the officer] to demonstrate that they had justifiably acted in self-defense.”
Id.
{¶67} In this case, Edvon argues that the officers lacked probable cause because they had
conclusive evidence that he had an affirmative defense — defense of others. Defense of others
is an affirmative defense to a charge of aggravated menacing. See State v. Morefield, 2d Dist.
Montgomery No. 26155, 2015-Ohio-448, ¶ 26; State v. Ludt, 180 Ohio App.3d 672,
2009-Ohio-416, 906 N.E.2d 1182, ¶ 21 (7th Dist.).
4 In Gardenhire, the plaintiffs filed a lawsuit against the police chief, claiming that he arrested them without probable cause. The lawsuit stemmed from an incident where the owner of a business next door to the plaintiffs’ business accused the plaintiffs of theft, claiming that items in the plaintiffs’ storefront window belonged to her. While the plaintiffs were arrested, no charges were brought against them. The trial court denied the police chief’s summary judgment motion based on qualified immunity. On appeal, the Sixth Circuit found that
there was evidence in addition to the [plaintiffs’] bare statements, that would lead a reasonable officer to rethink whether the [plaintiffs] had committed a crime. The obvious placement of the supposedly stolen goods and the common doorway between the shops should have triggered at least a suspicion that the “theft” was not what it appeared.
Id. at 316. The affirmative defense of defense of another is a variation of self-defense. State v. Moss, Franklin App. No. 05AP-610, 2006-Ohio-1647. Under certain circumstances, a person may be justified in using force to defend another person against an assault. However, the actor then stands in the shoes of the person he aids, and if the person aided is the one at fault in creating the affray, the actor is not justified in his use of force. Id. One who acts in defense of another must meet the criteria for self-defense. Id.
State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 38.
{¶68} I would find Dietrich to be on point with the facts of this case and Frodge to be
distinguishable. Here, like Dietrich, the officers had information available to them, prior to
arresting Edvon, that conclusively established that Edvon only pointed a gun at the Moraleses to
defend Regine against what he believed was an assault and that Regine would have been justified
in using force because according to her, her father “grabbed” her and pushed her into the hallway
and tried to prevent her from leaving the apartment. See In re D.N., 195 Ohio App.3d 552,
2011-Ohio-5494, 960 N.E.2d 1063, ¶ 21 (8th Dist.) (holding that self-defense is an affirmative
defense to domestic violence). Unlike Frodge, where the officers did not have statements from
all of the parties involved, Edvon, Regine, and Alejandro all told the officers that Alejandro was
fighting with Regine in the hallway immediately outside Edvon’s door and that Regine screamed
for help and for someone to call the police. They all admitted that the Moraleses and Edvon did
not know one another. More importantly, all of the officers stated that there were “no
discrepancies” between the statements from Edvon, Regine, and Alejandro.
{¶69} All of the above establishes that all of the officers — who compared the statements
between Alejandro and Regine, went to Edvon’s apartment, and made a “group decision” to
charge Edvon for aggravated menacing — had full knowledge of facts and circumstances that
conclusively established that Edvon was justified in pointing his gun at the Moraleses to defend
Regine. As a result, the officers did not have probable cause to arrest Edvon for aggravated menacing. Because an inference of malice may arise when a plaintiff demonstrates a lack of
probable cause, I would find that there is a genuine issue of material fact as to whether the
officers are immune from Edvon’s malicious prosecution claim. See Hill v. White, 190 F.3d
427, 433 (6th Cir.1999) (“[T]he existence of malice may be inferred from the fact that a lawsuit
was brought without probable cause.”). In addition to malice, I would also find that the
evidence construed in favor of Edvon shows there is a genuine issue of material fact as to
whether the officers acted in bad faith or in a wanton or reckless manner.
{¶70} Finally, the majority states that because “the officers had information that Regine
caused the incident * * * the defense-of-others defense might reasonably be unavailable.”
While it is undisputed that Regine admitted to the officers that she was attempting to leave the
apartment, it was also conclusively established that Alejandro’s assault was severe and that he
threw Regine against the hallway wall multiple times and pulled Regine’s hair and extremities.
Alejandro’s physical assault on his daughter was so violent that Regine began screaming for help
and yelling that Alejandro was going to kill her. I disagree with the majority’s suggestion that
Regine would not be able to defend herself from such a violent assault simply because she was
attempting to leave the apartment or that a parent can violently assault a child attempting to leave
the home. At the very least, whether Regine was able to defend herself is an issue that certainly
raises a number of factually dependent legal questions that I believe are inappropriate for us to
resolve when reviewing motions for summary judgment.
{¶71} In conclusion, the majority’s weighing of the evidence and credibility
determinations are improper at this stage of the proceedings and run counter to long-standing
summary judgment principles. Genuine issues of material fact as to whether the police officers had probable cause to charge Edvon with child endangering and aggravated menacing exist and
are obvious from the record. Therefore, I respectfully dissent.