Judge throws out lawsuit against Hamilton County sergeant who kicked inmate who bit him

A judge has thrown out a lawsuit filed against a Hamilton County jail sergeant who kicked an inmate after the inmate bit through his boot, finding that the inmate’s actions were “extremely belligerent and aggressive” and “substantially certain to cause” the sergeant’s response.

In an order dated Thursday, Hamilton County Common Pleas Judge Robert Goering granted a motion for summary judgment filed by attorneys for Sgt. Jesse Franklin.

Goering said Franklin, during the June 2020 encounter, “was responding in the moment to the bizarre situation of being bit on the foot.”

An attorney for Franklin, Kim Rutowski, said Goering’s decision was “a great win for law enforcement.” Too many people in law enforcement, she said, are facing frivolous lawsuits.

“You can’t attack an officer, then sue them because they react to your attack,” Rutowski said.

The incident led to misdemeanor criminal charges being filed against Franklin – charges that were initially dismissed by city prosecutors then re-filed. Franklin was fired a month after the incident. Then, at a January 2022 bench trial, a Municipal Court judge found Franklin not guilty of assault.

In October 2022, according to court documents, an arbitrator reinstated Franklin to his position, with full seniority.

Among arbitrator Tobie Braverman’s findings were that Franklin had been held to a different standard.

Braverman said that in another recent case a sergeant who punched a jail inmate four times in the face, while the inmate was in a restraint chair, had received a 36-hour suspension. That inmate had spit in the sergeant’s face.

Man said he was in 'la-la land'

The incident involving Franklin happened on June 9, 2020. That evening, Cincinnati police brought Nicholas Ballachino into the Hamilton County Justice Center on charges of obstructing police and disorderly conduct while intoxicated.

According to Braverman’s decision: Ballachino, then 46, was making threats and shouting racial slurs from the time he arrived at the jail. At one point, he threatened Franklin’s children. Ballachino also tried to “kick, head-butt or spit” on at least three officers and deputies.

Eventually, multiple deputies restrained Ballachino by forcing him to the floor. At that point, Franklin was standing next to Ballachino’s head, observing.

Ballachino later said he was in "la-la land" and unable to comprehend what was happening around him, according to court documents.

Ballachino then bit down on the top of Franklin’s left boot – on the mesh fabric at the laces, documents say, thrashing his head from side to side, Braverman said, “like a dog pulling a chew toy.”

'Redness and bruising' on sergeant's foot

Franklin responded by pulling his left foot back and almost simultaneously kicking Ballachino in the forehead with his right foot. He testified that he felt “intense pain” from the bite. According to Braverman, Franklin sent a lieutenant a photo that showed redness and bruising on top of the foot.

“Contrary to the assumption that the inmate was biting into leather,” Braverman said, the top of the boot where Ballachino latched on “was a mesh fabric.”

Ballachino was taken to a hospital and received five stitches.

Braverman said all witnesses agreed that the use of force on areas of the body that are considered “red zones,” like someone’s head, “are to be avoided when possible.”

But, he said, “it is not prohibited.”

Fanon Rucker, an attorney for Ballachino, said they will appeal Goering's decision. Rucker said a jury should be allowed to decide whether Franklin's actions were reasonable or not.

"We believe summary judgment was not proper regarding the injuries caused to Mr. Ballachino," he said. "It was not objectively reasonable for Sgt. Franklin to do what he did."

This article originally appeared on Cincinnati Enquirer: Judge throws out suit against jail officer accused of excessive force