Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gardner v. Evans

United States District Court, W.D. Michigan, Southern Division

January 28, 2015

WILLIAM RUSSELL GARDNER, et al., Plaintiffs,
v.
JASON EVANS, et al., Defendants, HENRY LEE HOLSEY, Plaintiff,
v.
AARON WIEBER, SCOTT SANFORD, and THE CITY OF LANSING, Defendants,

For William Russell Gardner, Gilbert Gonzalez, Rebecca Mora, Keosha Louden, James Hudson, Roosevelt Hudson, Javon Hudson, Anthony Jackson, Jr., Savoy Jackson, Plaintiffs (1:12cv1338): J. Nicholas Bostic, Bostic & Associates, Lansing, MI USA.

For Jason Evans, Scott Ellis, Jon Cosme, David Brand, Steve Maloney, Scott Sanford, Gregg Scrimger, Lansing, City of a Michigan municipality, Defendants (1:12cv1338): David K. Otis, Plunkett Cooney (Lansing), East Lansing, MI USA.

For Henry Lee Holsey, Plaintiff (1:12-cv-00914-RJJ): J. Nicholas Bostic, LEAD ATTORNEY, Bostic & Associates, Lansing, MI.

For Aaron Wieber, Scott Sanford, City of Lansing, a Michigan municipality, Defendants (1:12-cv-00914-RJJ): David K. Otis, Plunkett Cooney (Lansing), East Lansing, MI.

For Facilitative Mediator, Mediator (1:12-cv-00914-RJJ): Peter L. Dunlap, LEAD ATTORNEY, Peter L. Dunlap PC, Lansing, MI.

OPINION

Hon. ROBERT J. JONKER, UNITED STATES DISTRICT JUDGE.

Introduction

These consolidated cases involve five sets of parties, similar factual circumstances, and partially overlapping claims. In each case, law enforcement officers executed a search warrant. In the aftermath of each search, the Lansing Police Department requested that a city housing code compliance officer inspect the premises, and a law enforcement officer admitted the compliance officer into the residence to conduct the inspection. In each instance, a compliance officer entered the residence without a separate administrative warrant. Each time, the housing inspection resulted in the residence being declared unfit for occupancy. The residents of each dwelling had to leave their homes immediately pending correction of the housing violations the compliance officers identified. The residents did not receive advance notice of the inspections. Nor did Defendants provide any notice of a right or process for appeal of the compliance officers' decisions.

Plaintiffs bring individualized claims linked to search warrants, arrests, and charges in their respective cases. Plaintiffs' overlapping claims focus on the law enforcement officers' requests that compliance officers inspect premises after execution of the search warrants; the compliance officers' entries and inspections without administrative warrants or consent; [1] and the compliance officers' failure to provide pre- and post-deprivation notice concerning the inspections and right to appeal. Plaintiffs name as defendants the law enforcement officers who sought the search warrants; the compliance officials who inspected the premises; and the City of Lansing.[2] The matter is before the Court on defense motions for summary judgment. The Court has heard oral argument on the motions; thoroughly reviewed the record; and carefully considered the applicable law. The motions are ready for decision.[3]

Background

1. 923 West Hillsdale

Plaintiff William Russell Gardner owned and resided at 923 West Hillside in Lansing, Michigan. His daughter, Irma Gardner, also resided at 923 W. Hillsdale. In December 2009, Officer Jason Evans of the Lansing Police Department sought a search warrant for the premises and provided an affidavit to support the request. (Evans Aff., docket # 60, Ex. A.) The affidavit reflects that Officer Evans has been employed as a police officer by the City of Lansing Police Department for eleven years and is assigned to the Special Operations Section. (Id.) The affidavit explains that Special Operations Section " investigates controlled substances trafficking within the City of Lansing." (Id.) The affidavit describes a police report Mason [Michigan] Police Officer Lynne Mark prepared and which the Mason Police Department forwarded to the Lansing Police Department. (Id.) Officer Evans's affidavit summarizes:

in Ofc. Lynne Mark's report it states that Ofc. Mark was approached by a citizen who stated that narcotics are being sold out of a W. Hillsdale address (City of Lansing) and guns have been involved. Ofc. Mark was handed a note with 'Oxicotton [sic] -- Irma Gardner -- Hillsdale -- Lansing' from the citizen. . . . Ofc. Mark determined that a middle aged B/F lived at the W. Hillsdale residence. Ofc. Mark located an Erma Jean Gardner . . . at 923 W. Hillsdale.

(Id.)

Officer Evans pursued this lead. He avers that on December 9, 2009, he observed a garbage container in front of the residence at 923 W. Hillsdale positioned between the curb and the sidewalk for pick-up. (Id.) Officer Evans picked up the trash, placing it in the empty bed of a city-owned truck. (Id.) He searched through the garbage and recovered a substance that tested positive for cocaine; used packaging material; a used syringe tube; and residency paperwork for Erma G. Williams, 923 W. Hillsdale. (Id.) A search of the Lansing Police Department database revealed that " Erma G. Williams" and " Irma Gardner" are the same person. (Id.) Based on the information he had obtained, and on his experience and training, Officer Evans asserted that " the controlled substances laws have been and are being violated within the premises to be searched and the violations are ongoing and controlled substances will be found in the premises." (Id.) A judge approved the warrant request the evening of December 9, 2009. (Search Warrant, docket # 60, Ex. A.)

The Special Operations Section of the Lansing Police Department executed the search warrant on December 12, 2009. (Incident Report, docket # 60, Ex. D.) Officer Evans was not present for the execution of the search warrant. (Evans dep., docket # 60, Ex. C.) The search of the residence yielded crack cocaine, scales, drug paraphernalia, a handgun, and ammunition. (Incident Report, docket # 60, Ex. D.) Officers arrested four people, including Plaintiff Gardner. (Id.) Mr. Gardner was charged with possession of less than 25 grams of a controlled substance. (docket # 65, Ex. 2.) The charge was later dismissed.

During the execution of the search warrant, police officers " damaged or disabled smoke/fire detectors, dumped food and cooking ingredients on the floor and countertops, removed chilled or frozen meat from the refrigerator/freezer and left it out to spoil, dumped over beds and furniture, broke a door off a kitchen cabinet, removed clothing and other personal items from closets, cabinets, and dressers[, ] leaving . . . pathways blocked and cluttered." (First Am. Compl, docket # 5, ¶ 46.)[4]

In the aftermath of the search, the Lansing Police Department requested that a housing code compliance officer inspect the premises. (Brand dep., docket # 60, Ex. E.) Code Compliance Officer David Brand responded to the request, arriving at 923 Hillsdale while some of the law enforcement officers were still present. (Id.) According to Plaintiff Gardner, neither Defendant Brand nor anyone else requested or obtained his permission to inspect his home. (Gardner aff., docket # 65, Ex. 2.)[5] Defendant Brand inspected the house and found housing code violations that included, among others, improper electric service panel installation; bare wiring near a water source; a gas hot water heater without a permit or inspection tag; and a deteriorating gas furnace. (Correction Notice, docket # 60, Ex. E.) Based on the violations he found, Defendant Brand declared the house unsafe for occupancy. In Lansing, such a declaration is sometimes referred to as a " red-tag, " because in that city, a red marker is placed on a house declared unsafe for occupancy. The practical effect of a " red-tag" is that the occupants of a house must leave immediately and may not occupy the house until the violations have been corrected. Defendant Brand did not provide Mr. Gardner with notice or an opportunity for hearing before the inspection or red-tagging decision. He did not inform Mr. Gardner of a right to appeal or a process for appealing. Nor did the red-tag itself provide this information.

A Correction Notice to Mr. Gardner issued on December 11, 2009. (Id.) It details the housing code violations Defendant Brand identified. (Id.) The Correction Notice states that " a partial inspection was conducted by Code Compliance Officer David Brand. Due to the condition of the dwelling, a complete inspection could not be done. A complete inspection is required and all code violations must be corrected and then approved by this office prior to occupancy." (Id.) The Correction Notice establishes a " compliance due date" of January 11, 2010, and notes that " [f[ailure to comply by the compliance due date may result in the issuance of a Municipal Civil Infraction Violation with Fines: $500 per day for each violation." (Id.) The Correction Notice informs the recipient that he " must contact the under signed [sic], no later than seven days before the compliance due date, to set up an appointment to meet at the structure (to verify that all corrections have been completed) or to acquire an authorized extension." (Id.) It notes that " [b]efore the re-inspection you must obtain all required permits and have those repairs inspected and approved by the appropriate inspector." (Id.) It provides an option to call with " any questions or concerns about complying within the time indicated" during limited hours. (Id.) The Correction Notice says nothing about a right to appeal or an appeal process. (Id.)

Invoking 42 U.S.C. § 1983, Plaintiff Gardner brings claims against Defendants Evans, Brand, and the City of Lansing for violations of his rights under the Fourth and Fourteenth Amendments of the Constitution: A) Plaintiff Gardner bases his claims against Defendant Evans on the following theories: (1) the search warrant was invalid, because the affidavit did not support a finding of probable cause; (2) law enforcement officers unreasonably damaged or destroyed property during the search; (3) Mr. Gardner was arrested and charged without probable cause; [6] and (4) law enforcement officers impermissibly invited and admitted a code compliance officer into the residence to conduct an inspection without an administrative warrant or consent. B) Plaintiff Gardner asserts that Defendant Brand violated his rights under the Constitution because he: (1) entered and inspected Mr. Gardner's home without an administrative warrant or consent; (2) red-tagged Mr. Gardner's home without any pre-deprivation notice or opportunity for hearing; and (3) failed to provide Mr. Gardner with any post-deprivation notice of the right to appeal or process for doing so. C) Plaintiff Gardner asserts that the City of Lansing violated his rights under the Fourth and Fourteenth Amendments of the Constitution because it had a policy and practice under which: (1) police officers impermissibly invited and admitted code compliance officers into residences to conduct inspections without administrative warrants or consent; (2) housing code officials entered and inspected residences without an administrative warrant or consent; (3) housing code officials inspected and red-tagged homes without any pre-deprivation notice or opportunity for hearing; (4) housing code officials red-tagged homes and imposed correction requirements without providing any post-deprivation notice of the right to appeal or process for doing so.

2. 1539 Lansing Avenue

Plaintiffs Gilbert Gonzalez and Rebecca Mora resided at 1539 Lansing Avenue in Lansing, Michigan. On May 8, 2010, Officer Scott Ellis of the Lansing Police Department sought a search warrant for the premises. (Ellis aff., docket # 60., Ex. F.) In his affidavit supporting the request, Officer Ellis details, among other things, a conversation with a cooperating individual who told him that he had been buying marijuana for the past four or five years from two sellers, a man and a woman, at 1539 Lansing Avenue; had been assisting the woman by finding buyers in exchange for marijuana since February 2010; and on May 7, 2010 had seen approximately 400 pounds of marijuana in brick form in the basement bathroom at the house. (Id.) The cooperating individual also told Officer Ellis that the previous month he had seen a semi-automatic carbine rifle with a " banana" clip on it in the kitchen at the home. (Id.) Officer Ellis states that the information the cooperating individual provided was consistent with information provided by another law enforcement officer, Agent Bailey, who told Officer Ellis he had been investigating narcotics and firearms related activity at 1539 Lansing since the fall of 2009. (Id.) Agent Bailey described to Officer Ellis a controlled buy in which a cooperating defendant purchased half an ounce of powder cocaine from a man called " Flaco" (Mr. Gonzalez) at the home. (Id.) The cooperating defendant informed Agent Baily that Flaco told him that he had purchased two Uzi firearms from someone in Detroit. (Id.) The cooperating defendant also said that he had observed two clips loaded with ammunition on the kitchen table at the home. (Id.) A magistrate issued the search warrant on May 10. (Search Warrant, docket # 60, Ex. F.)

Members of the Special Tactics and Response Team (" START"), the Special Operations Section, Uniform Patrol, and federal agents met for a briefing before executing the search warrant. (Incident Report, docket # 60, Ex. G.) They determined,

[b]ased on the criminal history of Gonzalez, the information known about other subjects believed to be in the residence and involved with Gonzalez, the presence of firearms in the possession of and in the residence of Gonzalez and the apparent willingness of Gonzalez and others to use the firearms to prevent their apprehension by police . . . that START would deploy Light/Sound Diversion Devices upon entry into the house.

(Id.) The START officers divided into two teams to execute the warrant, one to clear the upstairs, the other the downstairs. (Id.) When they arrived at the house, they knocked on a door, announced that they were police with a search warrant, and broke down the door with a ram. (Id.) Plaintiffs Gonzalez and Mora assert that START team members discharged one distraction device (also called a " flash-bang") into the basement level of the house, and another into the kitchen on the first floor, " without any force or threat of force being directed at the officers by any occupants of the dwelling." (First Am. Compl., docket # 5, ¶ ¶ 126-127.) Plaintiff Gonzalez alleges that the flash-bang directed toward the basement caused a projectile to strike his head, " leaving an abrasion and contusion." (Id. at ¶ 180.) The next day, after posting bond, he sought medical treatment and was diagnosed with a concussion. (Id. at ¶ 182.) Plaintiff Mora alleges that one of the officers executing the search grabbed her hair and violently shook her head back and forth, causing " significant pain." (Id. at ¶ 185.) Plaintiffs Gonzalez and Mora state that the officers executing the search warrant " damaged or disabled smoke/fire detectors, dumped over beds and furniture, removed clothing and other personal items from closets, cabinets and dressers leaving hallways, passageways, doorways and other pathways blocked and cluttered, and placed flammable materials near pilot lights." (Id. at ¶ 136.)

In the aftermath of the search, the Lansing Police Department requested that a housing code officer inspect the premises. Code Compliance Officer Steve Malone responded to the request. (Correction Notice, docket # 60, Ex. H.) Defendant Malone found housing code violations that included, among others, combustibles stored too close to the furnace; handrail missing on the basement stairs; lack of operational smoke detector in basement and first floor hallway; a damaged side door; and a lack of a continuous, unobstructed path from any point in the structure to a public way. (Id.) Defendant Malone concluded that the house was unsafe for occupancy and red-tagged the house. He did not provide any notice to Plaintiffs before inspecting the house and did not advise them of any right to or process for an appeal.

A different code compliance officer, Vince Cantrell, who is not named as a defendant, issued a Correction Notice the same day the inspection took place. (Id.) The Correction Notice follows the same general format as the Correction Notice issued to Mr. Gardner and the other plaintiffs in this case. It details the violations identified and provides a compliance due date of approximately five weeks from the date of the Correction Notice. (Id.) It states that failure to comply by the compliance due date " may result in the issuance of a Municipal Civil Infraction Violation with Fines: $500 per day for each violation." (Id.) It informs the recipient that he or she " must contact the under signed [sic], no later than seven days before the compliance due date, to set up an appointment to meet at the structure (to verify that all corrections have been completed) or to acquire an authorized extension." (Id.) It provides a phone number at which to call Officer Cantrell during specified hours " [i]f you have any questions or concerns about complying within the time indicated." (Id.) It states nothing about a right to an appeal or an appeal process. (Id.)

Invoking 42 U.S.C. § 1983, Plaintiffs Gonzalez and Mora bring claims against Defendants Ellis, Malone, and the City of Lansing:[7] A) They assert that Defendant Ellis violated their rights under the Fourth and Fourteenth Amendments of the Constitution based on the following theories: (1) excessive force based on the use of the distraction devices and an officer grabbing Ms. Mora's hair and shaking her head; (2) law enforcement officers unreasonably damaged or destroyed property during the search; and (3) law enforcement officers impermissibly invited and admitted a code compliance officer into the residence to conduct an inspection without an administrative warrant or consent. B) Plaintiffs Gonzalez and Mora assert that Defendant Malone violated their rights under the Constitution because he: (1) entered and inspected their home without an administrative warrant or consent; (2) red-tagged their home without any pre-deprivation notice or opportunity for hearing; and (3) failed to provide them with any post-deprivation notice of the right to appeal or process for doing so. C) Plaintiffs Gonzalez and Mora assert that the City of Lansing violated their rights under the Constitution based upon a policy and practice under which (1) police officers impermissibly invited and admitted code compliance officers into residences to conduct inspections without administrative warrants or consent; (2) housing code officials entered and inspected residences without administrative warrants or consent; (3) housing code officials inspected and red-tagged homes without any pre-deprivation notice or opportunity for hearing; (4) housing code officials red-tagged homes and imposed correction requirements without providing any post-deprivation notice of the right to appeal or process for doing so.

3. 1043 Bensch Street

Plaintiff Keosha Louden resided at 1043 Bensch Street in Lansing, Michigan. Lansing Police Officer Dylan Zehr sought a search warrant for the premises on April 16, 2010. (Defs.' Br., Ex. N.) In his affidavit, Officer Zehr states that he is employed by the City of Lansing Police Department; has served for approximately twelve years; and has been assigned to the Special Operations Section of the Department for the past four years. (Id.) Officer Zehr describes CI 772 as reliable based on previous investigations in which he used CI 772. (Id.) Officer Zehr states that he " has been investigating suspected traffic in the controlled substance of crack cocaine from and within 1043 Bensch Street." (Id.) He describes a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.