Every now and then a case shows up that even I – in my jaded old age – find jaw dropping. This morning was one of those times. A local HR Consultant was arrested and incarcerated for 36 hours in connection with an internal investigation in northeast Ohio. Needless to say, the Police Chief (who was a subject of that investigation and arranged for her arrest and incarceration) was promptly placed on leave and then fired. After she subsequently brought suit against him and the Township for, among other things, abuse of process, he claimed qualified immunity because he had probable cause to have her arrested for a misdemeanor charge. The Court noted that he had confused malicious prosecution (where there was no probable cause) with abuse of process. “The premise of an abuse of process claim is that a process has been abused, not that it was illegal to invoke the process by proceeding without probable cause.” Further, there was sufficient evidence that he sought to silence the Consultant to preserve his employment, not merely to see her justly prosecuted for a misdemeanor offense. Therefore, evidence of his malicious purpose in having her arrested was sufficient to justify denial of qualified immunity. McDowell v. Pomesky, No. 26-3027 (6th Cir. Oct. 26, 2026).
According to the Court’s opinion, the Consultant was engaged
by the Township to audit its human resources practices and concerns with the Police
Chief. In the course of her audit, she
discovered a number of complaints against the Chief. She also discovered that he was monitoring
which employees she spoke with (possibly to intimidate them) and had opened an
investigation (in retaliation) against the person who told her about his
monitoring. She provided a draft report
to the Township about the issues with the Chief and became concerned that he would
retaliate against her when he not-so-subtly -informed her that he knew her home
address. She responded with a false bluff that she was aware someone had looked
her up on LEADS, and he promptly investigated whether that LEADS report had
been generated from the Township department.
Several days later, he convinced a local prosecutor that she had engaged
in misdemeanor falsification and obstruction of official business and obtained
an arrest warrant from a judge.
Typically, misdemeanor arrests are only made in that County and misdemeanors are only subject to a summons,
not an arrest. (In fact, no misdemeanor warrants
had been issued or arrests occurred outside the County in the Chief’s memory or
career). However, the Chief arranged for
the Consultant to be arrested in Franklin County, where she was held for 36
hours. At no time had the Township ever
arranged for someone to be arrested for a misdemeanor more than 4 hours away,
like the Consultant.
After the defendants moved for summary judgment, the District
Court agreed that the Consultant had sufficient evidence to show that the Chief
had engaged in abuse of process – i.e., “whether [the Chief] perverted the
process for an ulterior purpose.” It also
found qualified “immunity under Ohio law does not extend to government
employees who act “with malicious purpose, in bad faith, or in a wanton or
reckless manner.” The Chief appealed only the denial of qualified immunity.
In Ohio, municipal employees enjoy
a “presumption of immunity.” . . . But that immunity does not extend to employees
whose “acts or omissions were with malicious purpose, in bad faith, or in a
wanton or reckless manner.” Ohio Rev. Code Ann. § 2744.03(A)(6)(b). [The
Consultant] alleges both malice and bath faith. For malice, an employee must
act with “the willful and intentional design to do injury or the intention or
desire to harm another, usually seriously, through conduct which is unlawful or
unjustified.” . . . An employee acts in “bad faith” when they have
“dishonest purpose,” engage in “conscious wrongdoing,” or breach a “known duty
through some ulterior motive or ill will.” . . . The question of “[w]hether a government
employee acted with the intent necessary to overcome the presumption of
immunity is typically a jury question.” . . .
Here, [the Chief] argues that he is entitled
to statutory immunity because he had a reasonable justification for
investigating, charging, and arresting [the Consultant] and because his actions
were “authorized” under Ohio law. . . . But viewing the evidence in the light most
favorable to [the Consultant], a reasonable jury could conclude that [his]
actions nonetheless evinced malice or bad faith. Consider even just a few parts of the record
that raise a material question as to whether [he] acted with an intent to harm [her]
or with a dishonest purpose. [The Consultant], for example, presented evidence
that [his] decision to seek and enforce an arrest warrant was contrary to the
police department’s policy for misdemeanor offenses. Various officers in the
department—including [him]—could not identify a single instance in their entire careers where misdemeanor
charges had been handled in a similar manner. A reasonable jury could find
that [he] deviated from the department’s arrest policy for the dishonest
purpose of hampering or halting [her] investigation into him by incarcerating
her. (italics added for emphasis).
[The Chief] contends that he is
entitled to immunity because his decision to arrest [the Consultant] was supported by probable cause; he emphasizes
that a prosecutor brought the charges and a judge signed off on the arrest
warrant. . . . . But [he] does not cite
authority for the proposition that the presence of probable cause is, by
itself, enough to guarantee immunity. Nor could he: The first element of a
claim for abuse of process is “that a legal proceeding has been set in motion
in proper form and with probable cause.” . . . The premise of an abuse of process claim
is that a process has been abused, not that it was illegal to invoke the
process by proceeding without probable cause. The latter sounds in malicious
prosecution, a distinct claim that [he] improperly conflates with abuse of
process. . . . So if probable cause could confer statutory
immunity, as [he] asserts, government employees would have immunity against all
properly pleaded claims of abuse of process and could pursue malicious and bad
faith actions with impunity.
The Court also rejected the Chief’s attempt to rely on an
Ohio Supreme Court decision’s footnote (which is always dicta) because that
decision concerned the merits of an abuse of process claim, and not the issue
of qualified immunity, which is governed by statute.
Next, [the Chief] contends that
because his actions were “authorized,” he is entitled to statutory immunity.
This argument too is unavailing because it conflates two different legal
questions. His argument rests on a footnote in Yaklevich, an Ohio
Supreme Court case. Yaklevich explains the second element of an abuse of
process claim, which requires that “the proceeding has been perverted to
attempt to accomplish an ulterior purpose for which it was not designed.” Id. The
footnote states: “Therefore, ‘there is no liability [for abuse of process]
where the defendant has done nothing more than carry out the process to its
authorized conclusion, even though with bad intentions.’” Id. at 118 n.2
(quoting Prosser & Keeton on the Law of Torts 898 (W. Page Keeton et al.
eds., 5th ed.1984)). [The Chief] reasons that because his conduct falls within
that footnote’s safe harbor, he did not act with the malice or bad faith
required to overcome immunity under § 2744.03(A)(6)(b).
The problem for [the Chief] is that
Yaklevich addresses the merits (i.e., what makes the misuse of process
tortious), whereas § 2744.03(A)(6)(b) addresses the official’s culpable state
of mind for immunity purposes. Whether [the Chief] “perverted” the criminal
process is therefore not necessarily coextensive with whether he acted with
malicious purpose or in bad faith in pursuing them. Indeed, as Yaklevich’s
footnote itself suggests, a defendant can carry a legal process to its authorized
conclusion but still have a dishonest purpose. See e.g., Buehner v. City of
Cleveland, 788 F. Supp. 3d 827, 914, 921-22 (N.D. Ohio 2025) (holding that
allegations of fabricated evidence rose to the level of bad faith or malice
necessary to defeat statutory immunity but failed to establish abuse of process
absent an ulterior purpose beyond securing a conviction). And here, a
reasonable jury could find that [the Chief] exercised otherwise lawful
discretion for the dishonest purpose of protecting his job by discrediting and
silencing [the Consultant].
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
