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Hammond v. Lapeer County

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

September 25, 2015

STEPHEN HAMMOND, Plaintiff,
v.
LAPEER COUNTY, JAMES CUMMINGS, and DALE ENGELHARDT, in their individual and official capacities, Defendants

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          For Stephen Hammond, Plaintiff: Shawn C. Cabot, Christopher Trainer and Assoc (White Lake), White Lake, MI.; Amy J. DeRouin, Christopher Trainor Assoc., White Lake, MI.

         For Lapeer, County of, James Cummings, Dale Engelhardt, Defendants: Christopher J. Johnson, Farmington Hills, MI.

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          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 20)

         PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants Lapeer County, James Cummings and Dale Engelhardt's Motion for Summary Judgment. (ECF No. 20.) Plaintiff filed a Response (ECF No. 24) and Defendants filed a Reply (ECF No. 26). The Court held a hearing on June 19, 2015. On July 30, 2015, the Court ordered the parties to submit supplemental briefing addressing the appropriate constitutional standard for analyzing Plaintiff's excessive force claims in this case. Defendants filed their supplemental brief on July 30, 2015 (ECF No. 29) and Plaintiff filed two supplemental briefs, one on July 30, 2015 and a second supplemental brief on August 14, 2015 (ECF No. 31). For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

         INTRODUCTION

          This action involves Plaintiff's claim that deputies applied excessively tight handcuffs, which they refused to loosen, and used excessive force when escorting him to and placing him in a holding cell, after he was held in contempt of court, sentenced and remanded to custody, following a December 12, 2011, Friend of the Court Bench Warrant Arraignment in Lapeer County Circuit Court, on three separate child support arrearages. The individual deputies and the County now move for summary judgment. Because genuine issues of material fact remain as to Plaintiff's excessive force and assault and battery claims, the Court DENIES the individual Defendants' motion for summary judgment. Because there is no evidence that the County had notice of similar constitutional violations that the County ignored, the Court GRANTS the County's motion for summary judgment.

         I. BACKGROUND

         On December 12, 2011, Plaintiff was arraigned before Judge Justus C. Scott, Family Court Judge of the Lapeer County Circuit Court, on a Friend of the Court Bench Warrant. (Defs.' Mot. Ex. 1, Transcript of December 12, 2011 Proceedings, hereinafter " 12/12/11 Tr." ) Judge Scott found Plaintiff in contempt of court on each of three separate child support arrearages, ordered Plaintiff to pay on two of the three arrearages, sentenced him to thirty days in jail and remanded him immediately to the custody of the jail. Id.

         A. Testimony of Ms. Potter-Knowlton

         The case worker assigned to Plaintiff's cases, Beth Potter-Knowlton, met with

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Plaintiff before the arraignment to determine if any arrangements could be made on his arrearages. (Defs.' Mot. Ex. 2, October 29, 2014 Deposition of Beth Potter-Knowlton 18.) Ms. Potter-Knowlton testified that she was unable to make any headway with Plaintiff and that, by the time they appeared before Judge Scott, Plaintiff was " a little bit agitated." Id. at 22. She testified that Plaintiff was " curt" with Judge Scott and had " a bit of an attitude." Ms. Potter-Knowlton thought Plaintiff was unhappy that a complainant in one of the child support matters was present in the courtroom. Id. According to Ms. Potter-Knowlton, after Judge Scott ruled and ordered Plaintiff detained, Plaintiff made " some statements," the exact content of which she could not recall, to the complainant in the audience. Id. at 24.

         Ms. Potter-Knowlton accompanied Plaintiff out of the courtroom and placed him in a holding cell outside the courtroom and asked for officer assistance to help her get Plaintiff down to lock up. Id. at 25. Typically, if there is " no issue" with the individual who has been ordered detained, they would sit in a chair in the courtroom while Ms. Potter-Knowlton had the order signed by the judge and then she would " do a quick pat down" and take them down the elevator to the lock up for processing. Id. at 27-28. If there " is a problem for some reason," Ms. Potter-Knowlton places the individual in a holding cell and calls for assistance. On this particular day, because of Plaintiff's " agitated demeanor," she placed him in the holding cell and called for assistance to take him down the elevator to lockup. Id. at 28. Ms. Potter-Knowlton could not recall what exact behaviors Plaintiff had exhibited that made her call for assistance that day but noted that she had been " doing this a long time," and had a " gut feeling" that Plaintiff needed to " cool off" and she was not comfortable with him " being without handcuffs" and taking him down the elevator by herself. Id. 29-30.

         Eventually, Deputy James Cummings arrived to assist in taking Plaintiff down the elevator. Id. at 32-33. When Cummings arrived, Plaintiff was in the holding cell talking on his cell phone and ignored Cummings' request that he get off the phone. Id. at 33. Ms. Potter-Knowlton recalled that Plaintiff ignored somewhere between three and five of Cummings' requests to get off of his phone. Id. at 33-34. At some point, out of Ms. Potter-Knowlton's sight, Cummings placed Plaintiff in handcuffs. Id. at 36-37. Ms. Potter-Knowlton does not recall Plaintiff complaining about the tightness of the handcuffs. Id. at 37.

         After Plaintiff was handcuffed, Cummings escorted Plaintiff to the elevator and Ms. Potter-Knowlton operated the elevator, which required a key to be inserted before a floor could be pushed. Id. at 34. Cummings instructed Plaintiff to get in the elevator facing the rear of the elevator and Plaintiff was twisting from the waist up and resisting Cummings' instructions and asking why he was being made to do this. Id. at 47. Ms. Potter-Knowlton first accidentally pushed the button for the wrong floor and the three of them had to remain on the elevator as it proceeded to the incorrect floor before she could re-insert the key and activate the appropriate floor button. Id. at 40-41. Throughout this time period, Plaintiff continued to look back and ask why he was being instructed to put his face to the rear of the elevator. Id. at 47. Ultimately a " scuffle" ensued between Cummings and the Plaintiff and Plaintiff eventually ended up on his knees in the elevator. Id. at 48. At some point, Cummings made reference to using his taser if Plaintiff did not stop " thrashing." Id. at 49. Ms. Potter-Knowlton was " nervous" during this scuffle on the elevator, that she could have been banged or hit by Cummings

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or the Plaintiff but does not recall Plaintiff threatening her directly in any way. Id. 49-50. When the door opened on the basement floor at the lock up area, there was another officer waiting to assist Cummings with getting Plaintiff off the elevator, so Ms. Potter-Knowlton went back up the elevator to complete her paperwork. Id. at 51. She remembers generally indicating, once she was back at her office, that there had been an incident on the elevator. Id. at 51.

         B. Testimony of Officer Cummings

         Officer Cummings recalls that on December 12, 2011, he was called by Sergeant Engelhardt, who had been called by Judge Scott's courtroom clerk, to report to the holding cell area outside the courtroom to help take the Plaintiff into custody. (Defs.' Mot. Ex. 4, October 14, 2014 Deposition of James Cummings 13.) Cummings testified that Plaintiff was in a holding cell when Cummings first encountered him, and was talking on his cell phone. Id. at 14. Plaintiff appeared agitated while talking on the phone and was yelling at Cummings who was ordering Plaintiff to get off the phone. Id. at 14-15. Plaintiff refused three or four verbal commands from Cummings to get off the phone after which Cummings opened the holding cell door and explained that Plaintiff had been remanded to custody and to hang up the phone. Plaintiff then hung up the phone, shoved it in his pocket and " assumed a fighting stance" and " doubled up his fists" and stared at Cummings. Id. at 16. After maybe a minute, Plaintiff followed Cummings' order to turn around and place his hands on the wall so that he could place him in handcuffs. Cummings then handcuffed him behind his back and explained that they were going to go get on the elevator. Id. at 18-19. At this point, Cummings was not able to check the handcuffs for tightness or double lock them (which prevents them from tightening on themselves, id. at 22-23) because Plaintiff was still being " aggressive," and starting to " tense up" and " not wanting to go with" Cummings. Id. at 21. Plaintiff was arguing with Cummings about why he had to go downstairs. Id. at 22. Cummings was not able to check the handcuffs for tightness, by placing his finger between the handcuffs and Plaintiff's wrist, until they arrived downstairs in the lockup. Id. at 23. Cummings testified that Plaintiff never complained that he was in pain or that his handcuffs were too tight. Id. at 23-24.

         After Cummings got Plaintiff out of the holding cell to walk to the elevator, Plaintiff once again turned to face Cummings and Cummings just turned him back around, held both of his arms and walked him toward the elevator where Ms. Potter-Knowlton was waiting with the elevator key. Id. at 25. During the two or so minutes that the three of them waited for the elevator, Plaintiff was a little " lippy" with Cummings but not physically resisting. Id. at 26. When they got on the elevator, Cummings told Plaintiff to face the back of the elevator and Plaintiff was " hollering" at Cummings, questioning why he had to face the back of the elevator. Id. at 26-27. Plaintiff complied but once the elevator started moving, Plaintiff suddenly tried to spin around and wanted to argue with Cummings and Ms. Potter-Knowlton about why he was in custody and why he had to go to jail. Id. at 27-28. Cummings turned Plaintiff back to face the wall of elevator but Plaintiff spun around again, which Cummings interpreted as an effort to go for Ms. Potter-Knowlton. Cummings got a hold of Plaintiff's shirt from the back and got Plaintiff into the corner and he spun around again, at which time Cummings put his foot into the back of Plaintiff's calf and forced Plaintiff into a kneeling position. Id. at 30-31. Cummings told Plaintiff to stay down on his knees, and told Plaintiff he was going to, and did, pull out his taser. Id. at 32-33. Plaintiff then stopped trying to get back up and sat on the elevator floor

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until the doors opened up at the basement. Id. at 33. Cummings estimated that the elevator ride lasted about four minutes. Id.

         When the elevator arrived at the basement, they were met by Sergeant Dale Engelhardt. Id. at 34. They took Plaintiff, still handcuffed, to the holding cell where Cummings had Plaintiff get back on his knees so that he could pat him down and take his property and check his handcuffs. Id. While Cummings did this, Engelhardt was talking to Plaintiff, trying to calm Plaintiff down and diffuse Plaintiff's anger over being placed in custody by Judge Scott. Id. at 35. Cummings checked Plaintiff's handcuffs and then returned to the circuit court to finish up what he had been doing when he was called to assist with Plaintiff. Id. at 35-36. When he returned to the basement lock up, Plaintiff had " calmed down," and Cummings removed the handcuffs that were on Plaintiff, which were Cummings' handcuffs, and replaced them with another set of jail cuffs. Id. at 36. Cummings testified that Plaintiff never complained that the handcuffs were too tight or were hurting him. Id. Cummings then transported Plaintiff, along with the rest of the inmates, to the jail. Id. at 37. After the incident, Cummings testified, he caused an arrest warrant to be issued for Plaintiff for his resisting and obstructing in the elevator ride. Id. Plaintiff accepted guilt by pleading nolo contendere to the criminal charge of resisting arrest and later filed a Citizen Complaint against Cummings for the incident in the elevator. Id. at 38.[1]

         C. Testimony of Sergeant Engelhardt

         Sergeant Engelhardt initially placed the call to Cummings to go to Judge Scott's

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shcourtroom and assist with Plaintiff after Engelhardt received a call from Judge Scott's courtroom clerk requesting assistance with Plaintiff, whom she described to Engelhardt as " unruly." (Defs.' Mot. Ex. 3, October 14, 2014 Deposition of Dale Engelhardt 13-15.) Approximately 10-20 minutes after Engelhardt placed the call to Cummings, Cummings and Ms. Potter-Knowlton arrived down in the basement at lockup with Plaintiff. Id. at 17. Engelhardt testified that he could see on the elevator monitor down in the basement lock up area that Plaintiff was resisting Cummings in the elevator. Id. at 18-20. It appeared to Engelhardt that Cummings and Plaintiff were wrestling and that Cummings was trying to gain control of Plaintiff and Plaintiff was resisting him and pulling away. Id. at 21. The elevator door opened and Ms. Potter-Knowlton yelled " Dale" as Engelhardt came around the corner and was right there at the elevator door. Id. at 22. At that point, it appeared to Engelhardt that Cummings had control of Plaintiff in the escort position but Plaintiff was " visibly upset." Id. at 23-24. Plaintiff did not scream or try to assault anyone, and Engelhardt " verbally engaged" Plaintiff to try to de-escalate the situation and calm Plaintiff down. Id. at 24. Engelhardt testified that Plaintiff responded " indifferently" but never became a problem for Engelhardt. Id. 24-25.

         Cummings and Engelhardt both escorted Plaintiff to the lockup holding cell and Cummings instructed Plaintiff to kneel so that Cummings could pat him down and retrieve his personal belongings. Id. at 26. Plaintiff then stood up and Cummings and Engelhardt left the holding cell and closed the door. Id. at 27. Cummings then left the basement but returned later to exchange Plaintiff's handcuffs when it was time for the transport to the jail. Id. Engelhardt thought Cummings was gone less than thirty minutes, maybe 15-20 minutes. Id. at 28. During this time Plaintiff was not unruly and did not ever complain that his handcuffs were too tight or that he was in pain. Id. Engelhardt testified that if Plaintiff had complained, he would have checked Plaintiff's wrists and checked the handcuffs for tightness. Id. at 29.

         D. Plaintiff's Testimony

         Plaintiff admitted that he was upset the day of his appearance in court with a woman named Jennifer, the mother of one of his children, who was in the courtroom on December 12, 2011 during his arraignment. (Defs.' Mot. Ex. 13, October 14, 2014 Deposition of Stephen Hammond 13.) He was upset with Jennifer because she gave a statement that Plaintiff should not be permitted to walk the streets because he failed to pay child support. Id. at 14. Plaintiff testified that he was in the holding cell outside the courtroom for about 10 minutes and that he still had his wallet, keys and phone. Id. He testified that he made a call to " Jina" while he was in the holding cell asking her to pay the $800 bail to get him out of jail. Id. at 14-15. Plaintiff admitted that he did not immediately get off the phone when Cummings first asked him to because the signal was bad and he had to keep repeating the amount of his bail to Jina. Id. at 16.

         Plaintiff denies that he struck a fighting posture when Cummings first entered the holding cell and testified that he fully cooperated with Cummings' efforts to place the handcuffs on him. Id. at 17. Plaintiff testified that he immediately told Cummings that the handcuffs were too tight and that Cummings " did nothing" and said " they'll be ok." Id. at 17, 35. Plaintiff had been in the jail before and had never had a problem with any of the deputies before this incident. Id. at 18-19. Plaintiff states that Cummings was pulling Plaintiff around by the hood of his sweatshirt and directing him with the hood of his sweatshirt

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into the elevator. Id. at 19. Plaintiff testified that once they were in the elevator, Cummings " shoved" him into the back of the elevator and then tried to " throw [Plaintiff] on the floor." Id. at 20, 36, 39. Plaintiff asked Cummings why he was throwing Plaintiff around and that is when Cummings pulled out his taser. Id. at 20-21. Plaintiff was kneeling at the time and Cummings kept the taser pressed into Plaintiff's neck but never discharged the taser. Id. at 21.

         Plaintiff states that when the elevator doors opened on the basement floor, Engelhardt was there and they took Plaintiff to his cell. Id. at 22. Plaintiff told Engelhardt and Cummings that the handcuffs were tight on him and neither one did anything about it. Id. They left him in the cell for " probably 45 minutes," before they both came back in, took his personal property, removed the handcuffs from behind his back and put handcuffs back on in front of his body. Id. at 22-23.

         Plaintiff was transported to the jail and, within five minutes of his arrival at the jail and before he was booked, he complained to an officer, whom he could not identify, that his handcuffs had been too tight. Id. at 24. Upon his arrival at the jail, Plaintiff was initially processed, searched and printed by Deputy Brandon Jones and subsequently booked by Sergeant Theresa Davis. (Defs.' Mot. Ex. 5, October 29, 2014 Deposition of Brandon Jones 19-20.) After he paid the fine and was released, Plaintiff returned to the front of the jail to file a citizens complaint against Cummings, at which time someone took photographs of his wrists, which were " swelled up and really red," but not cut or scraped. Hammond Dep. 24-25, 41. The following Monday, Plaintiff sought medical treatment for his wrists. Id. at 25. Plaintiff testified that he complained at least three times that the handcuffs were too tight. Id. at 37.

         Sergeant Davis took Plaintiff's Citizens Complaint against Cummings. (Defs.' Mot. Ex. 7, October 29, 2014 Deposition of Theresa Davis 10, Ex. 1, Incident Report, Ex. 2, Citizens Complaint.) After Plaintiff completed the paperwork, he showed Sergeant Davis his wrists. Sergeant Davis testified that his wrists were red and had marks consistent with handcuffs being applied and with someone resisting and also consistent with handcuffs being applied too tightly even if there was no resistance. Davis Dep. 14-15. Sergeant Davis testified that Plaintiff also complained that his thumbs were numb and she directed Detective Sergeant Polmanteer to take photographs of Plaintiff's wrist, which Sergeant Polmanteer did. Id. at 15; Defs.' Mot. Ex. 11, Photographs. Sergeant Davis told Plaintiff that his Complaint would be reviewed by Lieutenant Duane Engelhardt (the brother of Sergeant Dale Engelhardt who interacted with Plaintiff in the lock up at the Lapeer County Courthouse) and that Plaintiff would be contacted about the outcome. (Davis Dep. 13-14; Davis Dep. Ex. 1, Incident Report.) On December 19, 2011, Lieutenant Engelhardt sent Plaintiff a letter explaining that his Citizens Complaint had been reviewed and that a determination had been made that Cummings used the amount of force necessary to gain compliance with Judge Scott's Order. (Defs.' Mot. Ex. 12, Dec. 19, 2011 Memorandum to Plaintiff.)

         II. STANDARD OF REVIEW

          Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may file a motion for summary judgment " at any time until 30 days after the close of all discovery," unless a different time is set by local rule or court order. Fed.R.Civ.P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material

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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a). " Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).

          A fact is " material" for purposes of a motion for summary judgment where proof of that fact " would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). " 'The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005)).

          If this burden is met by the moving party, the non-moving party's failure to make a showing that is " sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-23. " [A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 324. " The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. The plaintiff must present more than a mere scintilla of the evidence. To support his or her position, he or she must present evidence on which the trier of fact could find for the plaintiff." Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). In doing so, the non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce " evidence of evidentiary quality" demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997); see Anderson, 477 U.S. at 252 (holding that the non-moving party must produce more than a scintilla of evidence to survive summary judgment). " A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A). All facts and factual inferences are drawn in favor of the nonmovant. Tolan v. Cotton, 134 S.Ct. 1861, 1868, 188 L.Ed.2d 895 (2014) (" By weighing the evidence and reaching factual inferences contrary

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to Tolan's competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party." ).

         " Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to make [his] case with a showing of facts that can be established by evidence that will be admissible at trial. . . . In fact, '[t]he failure to present any evidence to counter a well-supported motion for summary judgment alone is grounds for granting the motion.' Rule 56(e) identifies affidavits, depositions, and answers to interrogatories as appropriate items that may be used to support or oppose summary judgment." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)). " One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Celotex, 477 U.S. at 323-34.

         III. ANALYSIS

         A. Plaintiff's Excessive Force Claims Against the Individual Defendants

          " To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). " There is a long-standing principle that government officials are immune from civil liability under 42 U.S.C. § 1983 when performing discretionary duties so long as " their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). " In determining whether the government officials in this case are entitled to qualified immunity, we ask two questions: First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the right clearly established at the time of the violation?" Phillips v. Roane County, Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008). " The court may address these prongs in any order, and if the plaintiff cannot make both showings, the officer is entitled to qualified ...


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