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Nelson v. City of Madison Heights

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

October 29, 2015

Lyniece Nelson, on behalf of herself individually and as personal representative of the Estate of Henry Hilliard a/k/a Shelly Hilliard, Plaintiffs,
v.
City of Madison Heights, the Madison Heights Police Department, County of Oakland, acting by and through its agencies the Oakland County Sheriff's Department and Oakland NET, Madison Heights, Oakland County Police Officer Chad Wolowiec, and Madison Heights Police Officer David Koehler, Defendants

         As Amended, October 30, 2015.

Page 727

[Copyrighted Material Omitted]

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          For Lyniece Nelson, on behalf of herself individually and as Personal Representative of the Estate of Henry Hilliard a.k.a. Shelly Hilliard, Plaintiff: Amy Labenz, Julie H. Hurwitz, Kathryn Bruner James, Goodman & Hurwitz PC, Detroit, MI; William H. Goodman, Goodman and Hurwitz, Detroit, MI.

         For Chad Wolowiec, Oakland, County of, Defendants: Steven M. Potter, LEAD ATTORNEY, Rick J. Patterson, Robert C. Clark, Potter, DeAgostino, O'Dea & Patterson, Auburn Hills, MI; Thomas M. DeAgostino, Potter, DeAgostino, Auburn Hills, MI.

         Hon. JUDITH E. LEVY, United States District Judge. Mag. Judge Michael J. Hluchaniuk.

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         OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [111]

         Hon. JUDITH E. LEVY, United States District Judge.

         This case arises out of the murder of Shelly Hilliard (a transgender woman, né e Henry Hilliard). The decedent's mother

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Lyniece Nelson brought substantive due process, wrongful death, and interference with familiar relations claims on her own behalf and as personal representative of Hilliard's estate, against the City of Madison Heights, Oakland County, Oakland County Police Officer Chad Wolowiec, and Madison Heights Police Officer David Koehler.

         Much ink has been spilled over the events that led to Hilliard's death, but the salient facts are few: After defendant Wolowiec and other officers found Hilliard with marijuana, she voluntarily agreed to call and order drugs from her dealer Qasin Raqib so that she would not be arrested. While Raqib and his companion Marquita Clark were driving to deliver the drugs, officers made a routine traffic stop. Within an hour of agreeing to use " all reasonable means to protect [Hilliard's] identity," and with full appreciation of the danger it would cause to Hilliard, defendant Wolowiec told Clark that Hilliard had set them up. Wolowiec testified that he gave up Hilliard's identity for no reason. Three days later, Raqib and his accomplice James Matthews abducted, tortured, and then murdered Hilliard because she had informed on them. Her body was found burned and dismembered hours after her abduction.

         This Court must decide whether the remaining defendants--Oakland County and officer Chad Wolowiec--can be held responsible for Hilliard's death. They can. For the reasons set forth below, defendants' motion for summary judgment is denied.

         I. Background

         This case centers generally on the events that led to the death of Shelly Hilliard. According to Qasin Raqib (also known as " Red" ) and James Matthews, the two who murdered Hilliard, and also Marquita Clark, Raqib's companion the night that Clark and Raqib were arrested by defendants, defendant officer Chad Wolowiec told Clark that Hilliard had set up Raqib, which motivated Raqib to kill her. (Dkt. 114-2 at 1; Dkt. 114-3 at 2; Dkt. 114-4 at 1; Dkt. 114-5 at 2.)[1]

         On October 19, 2011, Hilliard was at a Motel 6 in Madison Heights, Michigan, with her friend Alonzo Hood (also known by the names Brittney and Kita). ( See Dkt. 114-7 at 2-3; Dkt. 114-8 at 4.) Defendant Wolowiec testified that he was conducting a narcotic investigation at the motel and saw a bag of marijuana through an open window when he was walking past Hilliard's room. ( See Dkt. 111-2 at 12.)[2] Defendant

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Wolowiec called police officer David Koehler to the scene, and the officers knocked on the door shortly after midnight. ( Id. ) They found used marijuana cigarettes in an ashtray and a bag of marijuana in the bathroom. ( Id. )

         Hood gave the officers a false name and was arrested for possession and obstruction of justice. (Dkt. 111-2 at 13; Dkt. 114-8 at 4-5.) To avoid arrest, Hilliard agreed to become a confidential informant and to call Raqib to request drugs.[3] (Dkt. 111-3; Dkt. 114-13.) Hilliard called Raqib on speaker phone and ordered an " eight ball" of cocaine and a quarter-ounce of marijuana. (Dkt. 114-13 at 6.) According to defendant Wolowiec's report, Raqib asked if Hilliard had $335, Hilliard asked Wolowiec if " this was ok," and Wolowiec responded directly to Raqib that he had the money. ( Id. ) Raqib then stated that he would be there in approximately twenty minutes. ( Id. ) Hilliard signed a form provided by defendant Wolowiec, titled Oakland County Narcotics Enforcement Team Confidential Source, which provided in relevant part that " [t]he Oakland County Sheriff Department will use all reasonable means to protect your identity; however, this cannot be guaranteed." (Dkt. 114-12 at 1.)[4]

         At approximately 1:12 AM, officer Koehler observed a vehicle that matched the description provided by Hilliard and made a traffic stop. (Dkt. 114-13.) Defendant Wolowiec was parked across the street with Hilliard in his vehicle, and he testified that he drove away from the scene so that Hilliard would not be seen by Raqib. (Dkt. 111-2 at 15.) Officer Koehler conducted a canine search of Raqib's car while Raqib and a passenger, Marquita Clark, waited in a third officer's vehicle. (Dkt. 111-5 at 13; Dkt 114-14.) While the canine search was ongoing, Royal Oak Officer Sydowski was called to the scene to conduct a search of Clark. Officer Sydowski searched Clark around 1:50 AM and found a bag of marijuana in Clark's sock. (Dkt. 111-5 at 14-15.)

         After officer Sydowski's search, defendant Wolowiec joined officers Sydowski and Koehler and then spoke directly with Clark. ( Id. at 15.) He testified that he told Clark he was the person who had ordered the drugs over the phone and that he asked Clark where she got the drugs. He also testified that he did not think that saying so would reveal Hilliard as the informant. (Dkt. 111-2 at 16.) According to defendant Wolowiec, Clark was not on the initial call and he did not think about whether she would relay the information to Raqib. ( Id. )

         Plaintiff contends that defendant Wolowiec explicitly told Clark that Hilliard set Raqib up for arrest. Clark essentially testified to this fact again at an in-court preliminary examination related to Hilliard's murder. ( See Dkt. 114-6 at 4-5.) Clark also testified that she told Raqib that Hilliard was an informant when they were released from jail the day after their arrest. ( Id. at 6.) In interviews with police on November 11, 2011, and March 5, 2012, Raqib stated that Clark told him that Hilliard informed

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on him. ( See Dkt. 114-3; Dkt. 114-4.) In any case, defendants' counsel conceded during oral argument that, for the purposes of this motion, the Court can presume that defendant Wolowiec disclosed Hilliard's identity directly to Clark.

         At approximately 1:00 AM on October 23, 2011, Robert Bowen, a friend of Hilliard's and a taxi driver, drove Hilliard to a location in Detroit. Shortly thereafter, she was abducted by Raqib and Matthews. (Dkt. 111-7 at 4.) At approximately 4:30 AM, Hilliard's body was found burned and dismembered on the I-94 service drive near Bewick Street.

         Defendant Wolowiec learned that Hilliard was missing at some point over the course of the next couple of weeks. (Dkt. 111-2 at 31-33.) He made no official report but called the missing-persons unit in Detroit to provide them with information on Hilliard. ( Id. ) When defendant Wolowiec later learned that Hilliard was dead, he again made no official report but contacted Detroit homicide to relay the information that he had provided to the Detroit missing-persons unit. ( Id. at 33-34.)

         Captain Joseph Quisenberry of the Oakland County Narcotics Enforcement Team (" NET" ), the task force for which defendant Wolowiec worked during the relevant period, testified that although general guidelines regarding policies and procedures of the department exist, Oakland County NET officers were not required to read them. (Dkt. 115-4 at 3.) Captain Quisenberry also testified that there were not any official, written policies or unofficial, unwritten practices or customs regarding the use of informants. ( Id. at 4.)

         But the record indicates that the Oakland County NET maintained Confidential Informant Guidelines that set forth the policies and procedures regarding confidential informants. (Dkt. 115-3.) The guidelines describe an informant as a person " whose identity must be kept in confidence" and notes that officers should tell informants that they " will use all lawful means to protect their identity." ( Id. ) Defendant Wolowiec testified that he never received, reviewed, or was even made aware of Oakland County's policy regarding confidential informants. (Dkt. 111-2 at 8-9, 36-37.)

         Finally, Captain Quisenberry testified that there were no " measures that an officer should take themselves to help protect [a] CI's identity" and that no policy would have explicitly prohibited Wolowiec from disclosing Hilliard's identity to Raqib and Clark. (Dkt. 115-4 at 4-5.) He testified that violations of department policy would be dealt with differently depending " on the circumstances and the severity of the complaint." ( Id. at 7.) But following the incidences giving rise to plaintiff's complaint, there was no investigation, discussion, analysis, or evaluation of defendant Wolowiec's actions. ( Id. at 2.)

         II. ...


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