Jorek v. ClevelandJorek v. Cleveland
DANIEL JOPEK, ET AL. PLAINTIFFS-APPELLANTS vs. CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-676565
RELEASED: May 27, 2010
JOURNALIZED:
ATTORNEYS FOR APPELLANTS
Mark G. Petroff, Esq.
David A. Hamamey, II, Esq.
Petroff & Associates L.L.C.
1288 Abbe Road
Elyria, Ohio 44035
ATTORNEYS FOR APPELLEES
Kathryn M. Miley, Esq.
Ernest L. Wilkerson, Jr., Esq.
Wilkerson & Associates Co., L.P.A.
1422 Euclid Avenue, Suite 248
Cleveland, Ohio 44115
N.B. This entry is an announcement of the court‘s decision. See
ANN DYKE, J.:
{¶ 2} This matter stems from the Novembеr 13, 2003, shooting death of Stanley Strnad by plaintiff Daniel Jopek, a Cleveland Police Officer. In their refiled complaint, plaintiffs alleged that the shooting occurred after Jopek and his partner, Martin Rudin, attempted to stop Strnad‘s vehicle. The officers pursued Strnad, who sped away, crashed the vehicle, then fled on foot. The complaint further alleged that during the foot chase, Officer Jopek believed that Strnad was reaching for a gun from his waistband, feаred for his life, and discharged his weapon. Strnad was struck and later died from his injuries. The Cleveland Police “shoot team,” the homicide department, and the Internal Affairs Divisions ruled the shooting to be justified. Thereafter, according to the complaint:
{¶ 3} “23. Prosecutor Jordan * * * decided to conduct his own investigation of the shooting.
{¶ 4} “24. Prosecutor Jordan went to the scene of the shooting, took measurements, interviewed witnesses and even questioned the Cuyahoga County Cоroner‘s report concerning the bullet wounds that Strnad sustained.
{¶ 6} On August 25, 2004, the matter was presented to the grand jury. The grand jury returned a no-bill of indictment to the proffered charges of reckless homicide and negligent homicide.
{¶ 7} Plaintiffs set forth claims for false arrest, malicious prosecution, abuse of process, intentional infliction of еmotional distress, and loss of consortium.
{¶ 8} On June 9, 2009, defendants jointly moved for summary judgment. Defendants presented evidence that all police shootings are investigated by the Use of Deadly Force Investigation Team (“UDFIT“) and all police shootings that result in fatalities are investigated by the chief prosecutor for a determination of whether criminal charges are appropriate. The UDFIT file included the coroner‘s report that detailed gunshot wounds to Strnad‘s back and was therefore at odds with Officer Jopek‘s statement that Strnad was shot while turning toward the officer with his hand in his waistband. Thereafter, Jordan made two visits to the shooting scene. He viewed the area, spoke with the homeowner about divergent statements he had made to police, and ultimately concluded that there was probable cause to prosecute Officer Jopek for “recklessly [causing] the death of Stanley K. Strnad by shooting him with a gun from bеhind.” The county prosecutor presented the matter to the grand jury, which returned a no-bill of indictment.
{¶ 10} In opposition, plaintiffs presented evidence that before attempting to stop Strnad‘s vehicle, the officers observed that Strnad had an angry, aggressive demeanor and bloodshot, glassy eyes. Strnad accelerated his vehicle at a very fast rate of speed, then cut in front of the police cruiser, nearly striking it. The officers activated their lights and sirens to stop the vehicle. Jopek exited the patrol car with his gun drawn, and instructed Strnad to turn off the ignition and keep his hands up. Strnad sped away, nearly striking Officer Jopek. The officers pursued, assisted by a police helicopter. At this time, Strnad accelerated at a high rate of speed, drove across a yard and struck parked cars before colliding with another motorist.
{¶ 11} Plaintiffs presented additional evidence that Strnad fled on foot. The officers pursued him on foot with their weapons drawn. Jopek caught up to Strnad and, accоrding to plaintiffs, gave him loud verbal commands to stop and show his hands and instructed the homeowner to get back inside his house. Strnad refused to comply and removed his jacket. He attempted to climb a fence but could not do so, crouched down, got back up, then turned toward Jopek and
{¶ 12} According to plaintiffs, as Officer Jopek was falling, Strnad turned toward Jopek, began to charge him, and yelled “I‘ve got you now, mother f—.” Jopek believed that he was in fear for his life, and fired at Strnad. John Farnsworth, who pursued Strnad in the police helicopter, believed that Strnad was about to hit or strike Jopek. Strnad continued to struggle as other officers arrested him. Officer Rudin indicated that he heard Jopek yelling commands to Strnad, that Strnad turned toward Jopek prior to the shots being fired. Plaintiffs’ witnesses also established that the shots were fired in quick succession.
{¶ 13} Plaintiffs also presented evidence that Strnad was shot in the upper back, the right lateral pelvis, the right buttock, and the right posterior upper arm. Based upon his wounds, Strnad was not shot directly in the back but was shot at different angles going from left to right in a manner that is indicative of Strnad turning at the point of impact. He was under the influencе of cocaine at the time of his death, and morphine, heroin, and other drugs were also found in his system. In addition, a U-shaped piece of metal was found nearby. The evidence also demonstrated that Strnad had an extensive criminal record
{¶ 14} With regard to Chief Prosecutor Jordan‘s conduct, plaintiffs assert that Jordan was not entitled to absolute immunity because he acted as an investigator, rather than a prosecutor. In support of this contention, рlaintiffs
{¶ 15} Finally, with regard to the liability of the city of Cleveland, plaintiffs maintained that their causes of action arise out of the employment relationship between Jopek and the city, so there was no statutory immunity by operation of
{¶ 16} The trial court subsequently granted defendants’ joint motion for summary judgment. Plaintiffs now appeal and assign two errors for our review. For the sake of clarity we shall address them in reverse order.
Introduction
{¶ 18} “(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come tо but one conclusion, and viewing such evidence most strongly in the favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.
{¶ 19} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶ 20} We further note that the Political Subdivision Tort Liability Act, as codified in
{¶ 21} First,
{¶ 22} “For purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.”
{¶ 23} The statutory definition of “governmental function” includes prosecutorial functions.
{¶ 24} Secondly, once immunity is established under
{¶ 25}
{¶ 26} Finally, under the third tier of analysis, immunity can be reinstated if the political subdivision can successfully argue that one of the defenses contained in
Chief Prosecutor Jordan
{¶ 27} In their second assignment of error, plaintiffs assert that the trial court errеd in determining that Chief Prosecutor Jordan is entitled to absolute immunity because the claims arise out of Jordan‘s investigation, rather than prosecution of this matter, and because he acted with malicious purpose or with reckless indifference to Jopek‘s rights, pursuant to
{¶ 28} “The political subdivision, and an emрloyee who is a county prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a political subdivision, an assistant to such person, or a judge of a court of
{¶ 29} Thus,
{¶ 30} At common law, “quasi-judicial officers” are entitled to absolute immunity granted judges when their activities are “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman (1976), 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128. In Imbler, the court explained that activities that are intimately associated with the judicial phase of the criminal process include initiating a prosecution and presenting the State‘s case. Absolute immunity does not extend, however, to a prosecutor engaged in essentially investigative or administrative functions. Van de Kamp v. Goldstein (2009), ___ U.S. ___, 129 S.Ct. 855, 172 L.Ed.2d 706. In Buckley v. Fitzsimmons (1993), 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209, the Supreme Court delineated the two divergent sets of functions and stated:
{¶ 31} “There is a difference between the advocate‘s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective‘s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.”
{¶ 32} The Buckley court cautioned, however, that the absolutely immune functions of initiаting a prosecution and presenting the state‘s case “must include
{¶ 33} Furthermore, as noted in Hawk v. Am. Elec. Power Co., Allen App. No. 1-04-65, 2004-Ohio-7042:
{¶ 34} “‘The decision to initiate, maintain, or dismiss criminal charges is at the core of the prosecutorial function.’ McGruder v. Necaise (C.A.5, 1984), 733 F.2d 1146, 1148. Additionally, Ohio courts have held that prosecutors are entitlеd to these protections against allegations of malicious prosecution and false arrest. See Hunter v. City of Middletown (1986), 31 Ohio App.3d 109, 509 N.E.2d 93. Therefore, pursuant to
{¶ 35} Applying all of the foregoing, we conclude that Chief Prosecutor Jordan is entitled to absolute immunity in this matter as the claims arose from his proteсted functions initiating a prosecution and presenting the prosecution‘s case.
{¶ 36} With regard to the claim that Chief Prosecutor Jordan is not immune from liability because he acted with malicious purpose or with reckless indifference to Jopek‘s rights, we note that
{¶ 37} In accordance with all of the foregoing, the second assignment of error is without merit.
City of Cleveland
{¶ 38} In their first assignment of error, plaintiffs assert that the statutory immunity set forth in
{¶ 39} “Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the politiсal subdivision[.]”
{¶ 41} “[T]he majority of other appellate courts that have determined that an employer intentional tort is not excepted under
{¶ 42} See, also, Young v. Genie Industries United States, Cuyahoga App. No. 89665, 2008-Ohio-929; Nielsen-Mayer v. Cuyahoga Metro. Housing Auth. (Sep. 2, 1999), Cuyahoga App. No. 75969; Hale v. Village of Madison (May 23, 2006), N.D. Ohio No. 1:04CV1646 (although
{¶ 43} But, see, Fleming v. Ashtabula Area City School Bd. of Edn., Ashtabula App. No. 2006-A-0030, 2008-Ohio-1892; Ross v. Trumbull Cty. Child Support Enforcement Agency (Feb. 09, 2001), Trumbull App. No. 2000-T-0025; Marcum v. Rice (July 20, 1999), Franklin App. Nos. 98AP-717, 98AP-721, 98AP-718, 98AP-719.
{¶ 44} Further, we do not believe that the outcome is changed even if we apply the rule set forth in Fleming, supra, that
{¶ 45} We find Marsh v. Oney (Mar. 1, 1993), Butler App. No. CA92-09-165, instructive herein. In Marsh, a Middletown police sergeant was accused of making harassing phone calls to a dispatcher. During the investigation, an obscene call was traced to a telephone in the records department of the Middletown Police Department. The police sergeant was not disciplined and later sued the dispatcher and the city of Middletown for defamation and intentional infliction of emotiоnal distress. The city was awarded summary judgment and the court of appeals affirmed. In rejecting the claim that
{¶ 47} We find this analysis applicable herein. Even applying
{¶ 48} In accordance with all of the foregoing, the first assignment of error is without merit.
{¶ 49} The trial court properly determined that there were no genuine issues of material fact and that defendants were entitled to judgment as a matter of law.
Affirmed.
It is ordered that appellees recover from appellants 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.
ANN DYKE, JUDGE
SEAN C. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY (SEE SEPARATE CONCURRING OPINION);
JAMES J. SWEENEY, J., CONCURS WITH MAJORITY AND WITH A SEPARATE CONCURRING OPINION (SEE SEPARATE CONCURRING OPINION)
{¶ 51} The majority opinion aptly reflects a split among Ohio appellate cases concerning the issue of whether employer intentional tort claims are excepted under
{¶ 52} I do not believe that a political subdivision should retain immunity with respect to all emрloyer intentional tort claims. I agree with those cases that have recognized that there may be instances where the conduct forming the basis of the intentional tort arises out of the employment relationship, which would except the claim from the statutory grant of immunity pursuant to
{¶ 53} Nevertheless, I agree with the majority‘s conclusion that even if this approach were applied herein, under the totality of circumstances in this matter, Jopek‘s claim against the city did not arise out of the employment relationship.
{¶ 54} Additionally, while a full review of the file can arguably support the view by some that commencing a prosecution against Jopek was suspect, it does not change the applicability of the immunity provisions afforded both Jordan and the city of Cleveland.