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Boyer v. Petersen

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

October 27, 2016

Marc Boyer, Plaintiff,
Mark Petersen & Bryan Campbell, Defendants.


          Paul L. Maloney, United States District Judge.

         On a late summer day in 2014, the Village of Vicksburg received a non-emergency call. Denise Boyer-a local resident who was less than one month away from her divorce being finalized with her then (separated) spouse, Marc Boyer-was “upset” that Marc had “cancelled” an appointment she had made to retrieve some of her personal belongings at Marc's (exclusive) residence on Wilson Street, and Denise was determined to go there regardless. Denise was not certain whether Marc was going to be there-but she requested the police accompany her.

         Officer Mark Petersen, no stranger to the Boyers or their disputes, responded to the call-and summoned the Chief of the nearby Village of Schoolcraft, Bryan Campbell, as back-up. Officer Petersen would later claim he was simply acting as a “peace officer” (despite the absence of exigent circumstances), but he went a step further.

         Officer Petersen accompanied Denise Boyer into Marc Boyer's residence and proceeded to “search for Marc”-a fairly intrusive search, in Mr. Boyer's light-“in the garage area, ” “through[out] the ground-level floor, ” “in the garage area, ” and even “upstairs.”[1] As alleged, Denise Boyer removed several items, some priceless, owned by Marc Boyer.

         The trouble for Officer Petersen is that despite his legal arguments, he knew all of the following facts at the time of the search: Marc and Denise Boyer were separated and nearly divorced; Marc was the only resident of the home on Wilson Street, and Denise lived at a separate residence on the “corner of Spruce and Vine” Streets; Marc “did not want [Officer Petersen] to let [Denise] on to the property that he was staying at or in the house [on Wilson Street] without permission”; Marc had “cancelled” an “appointment” for Denise to visit and retrieve some belongings because he could not be present; and Marc did not give consent for Denise (or the police) to enter his residence on that day.

         Officer Petersen cites a single justification for relying on Denise Boyer's “consent” to search Marc Boyer's residence for Marc's person: Denise's name was on the deed to the home.

         True, the facts of no other case directly mirror the facts of this case-but that's perhaps with good reason. Officer Petersen's unconstitutional search for Marc Boyer's person at Boyer's residence (through his erroneous reliance on Denise Boyer's “consent”) was so clearly wrong under established law that “‘every reasonable offic[er] would have understood that what he [was] doing violate[d] [Marc Boyer's] right'” to be free from an unreasonable search. T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014) (second and third alterations in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

         Indeed, other reasonable village officers rejected Denise's identical invitation just a few weeks later, understanding and memorializing clearly established law in a police report: “Denise explain[ed] that she plans on entering the home on Wilson Street at 12:03 am on October 1 to get [her] stuff, [as] [Marc] is supposed to be out by then, so [s]he ha[s] a right to be there, ” but “[w]e explained to [Denise] that she cannot illegal [sic] enter the home while [Marc] is still residing there.” Accordingly, while Chief Campbell (who played a minimal role by providing inter-jurisdictional back-up) is entitled to qualified immunity, Officer Petersen is not.

         I. Background

         Plaintiff Marc Boyer and his now ex-wife, Denise Boyer (whom had married in 2006), were close to finalizing a tumultuous divorce at the time of the events in question. (ECF No. 33-3 at PageID.154.)

         At some point in the early half of 2014, Marc and Denise began residing in separate residences and had begun the divorce process. Consistent with the separation, Marc lived by himself at 103 Wilson in Vicksburg, Michigan, despite the fact that Denise was listed as the owner on the deed. (Id.) (Denise lived at a separate residence.) At least one of the Officers, Mark Petersen, knew Mr. Boyer resided at 103 Wilson alone based upon at least one previous interaction. (ECF No. 33-5 at PageID.170.)

         Facts from Marc Boyer's Sworn Testimony and the Video

         Marc Boyer, not present during the alleged constitutional violation and trespass, provides his own factual account for how at least Officer Petersen knew Marc did not, as the sole resident of the home, give permission for Denise Boyer (or the police) to enter his residence without prior notice, arrangements, and his presence.

         Marc Boyer's sworn testimony unambiguously states: “As of August 13, 2014, I had been living separately from my estranged wife Denis for approximately two months. I resided at 103 Wilson Street. Denise resided on Spruce Street in the Village of Vicksburg. Denise was not welcome in my residence, and I only allowed her to stop by with a day's notice.” (ECF No. 33-1 at PageID.148.)

         Marc Boyer also alleged that he told Officer Petersen that Denise had to make arrangements prior to showing up to the home, and “Officer Petersen ma[de] a statement to the effect that he would not enter the house at 103 Wilson or allow Denise to enter the house unless you were present.” (ECF No. 33-3 at PageID.154.) He asserted that he recorded an exchange on video at some time in the early summer of 2014 that supported his assertion.

         Defendants are correct to a degree-part of Marc Boyer's factual account above is contradicted by the video.

         The video depicts Denise Boyer showing up to the residence wanting to retrieve some of her property and Marc Boyer expressing displeasure that she showed up without notice; both call the police.

         “She does not live here, ” Marc Boyer remarks to the dispatcher. At one point, he says, “When we are divorced, I will gladly get out of this house.” Marc and Denise exit the house.

         Marc Boyer makes various assertions throughout the beginning of the video: “I'm here; she's moved out”; “I've asked her when she comes, to make arrangements with me”; “I want a personal protection ”; “if she needs something, I don't object to her coming”; “all she needs to do is let me know she's coming”; “she chose to move out, and if I have to get a personal protection order, I'll get one.” (ECF No. 29-1.)

         After making initial contact, Officer Petersen asks: “She has moved out and is living with her sister for the past ten days?” “Yes, ” states Marc Boyer. “Because there's a little grey area here on whether-being that you guys are still married-I'll have to check to see. Even if she has moved out, being that you guys are still married, she might still have the right to come back here, ” Officer Petersen responds. “Like with landlord/tenant, you know, it's different.” “Exactly, ” Mr. Boyer responds. “If you're renting out a room, or if you have a buddy move in, and he moved out, you have to go through the eviction process. . . . It may be the best thing to do in the future until you guys are divorced, and everything is all divvied up, maybe the best thing is if she's going to come by here to get things, to avoid problems, maybe the best thing to do would be to have one of us come by and act as a peace officer.”

         Mr. Boyer responds: “I have no issue; there's nothing of hers that I want; she just doesn't need to be showing up saying that, well, ‘we're going to do this' when you're not here, and then call the cops; and I tell her, ‘you're not just going to show up and do this, ' and threaten me and then standing there yelling at me.”

         “She's going to get some of the property out of the house, okay?” Mr. Boyer responds: “I've never had an issue with that-I've asked her to call and make arrangements, tell me what she's taking so she's not taking any of my own property, that's all I've ever asked for.”

         During this video, Marc Boyer stands outside while Denise apparently removes her property. He at one point explains to the officer that she can't carry anything out of the house that's heavy because that stuff is “all community property.”

         At one point, Officer Petersen suggests: “And maybe, Marc, take the initiative if you see her pulling in, and she doesn't make arrangements with you, just give us a call.” “I will, ” Marc responds.

         Contrary to Marc Boyer's testimony, at no point does Officer Petersen promise Mr. Boyer that he will not show up to the house. However, at no point does Officer Petersen ever indicate that he would enter the home either, nor did he at the time. And Marc Boyer met him outside and never suggested that Officer Petersen could do anything other than be on standby, if needed. Moreover, when viewing the inferences drawn from the video in the light most favorable to Marc Boyer, the Officer is clearly on notice that Marc Boyer does not “consent” to any entry by Denise Boyer or an officer without Marc's express consent and presence.

         A jury could view the video and conclude that Officer Petersen: a) knew that only Marc Boyer resided at the home; b) stated that if Denise Boyer showed up, he should call the police; and c) Marc Boyer did not consent to Denise Boyer showing up unannounced and without his permission or presence.

         In addition to the video, however, Mr. Boyer's testimony, along with the divorce record, reveals a few other facts.

         First, the final judgment of divorce entered less than a month after the incident in question, on September 12, 2014. (The alleged unconstitutional acts occurred on August 13, 2014.) Accordingly, Mr. Boyer testified to the fact that “[t]he Judge and those people at the family court told us that, that she had her residence, I had my residence [until everything was finalized].” (ECF No. 28-2 at PageID.98.) In Marc Boyer's view, “[Denise Boyer] had no reason to come into there . . . because it says clearly in the paperwork that her attorney filed, we were not to remove any material, we were not to do any of those things.” (Id. at PageID.98.) Thus, although Defendants note that no formal order exists on the public docket, there are several hearings referenced on that docket that may support Mr. Boyer's contention that the “status quo”-both parties living in separate residences-was to be maintained during the pendency of the divorce proceedings.

         The fact that Denise Boyer felt the need to make appointments with Marc Boyer only underscored the arrangement-and the Officers knew that she felt the need to make those arrangements.

         However, the video does not sterilize Plaintiff's case, as Defendants contend. In fact, the video-only one of several contacts with the police-is neither necessary for Plaintiff's case nor sufficient for Defendant's qualified immunity defense.

         Even putting the video and other record evidence aside, the Officers had a clear picture on the date of the alleged violation: viewing the evidence on that day in the light most favorable to Marc Boyer, Denise Boyer represented to Officer Petersen that she did not have authority to consent to a search of the residence without Marc's consent and an appointment.

         Facts from the Officers' Sworn Testimony

         On August 13, 2014, Denise Boyer called the police. Officer Petersen, on duty inside the Village Offices, was apparently directed by the Police Chief to handle the call. (ECF No. 33-5 at PageID.169.) Denise had expressed frustration to the police because, according to Officer Petersen's recollection, Marc Boyer “would make an appointment for [Denise] to come over and then he would cancel on her at the last minute.” (Id. at PageID.171.) Accordingly, Denise “wanted [officers] to go there [to Marc's residence] while she retrieved the rest of her belongings.” (Id. at PageID.171.) And “[s]he said she wasn't sure if [Marc] was gonna be there or not.” (Id.)

         Officer Petersen, thus, went on what he characterized as a “peace officer call”-and “requested a backup unit from County dispatch.” (Id. at PageID.172.) Denise Boyer met him at Marc's residence with “a pickup truck [and] a trailer.” (Id.) She also had brought her “father” and “sons” to assist with removing items from the residence. After Officer Petersen parked, he claims Denise “wanted [him] to go up to the residence, follow her into the residence to make sure-verify whether Marc was there or not”; or in other words, perform a “search for Marc.” (Id.) Denise, according to Officer Petersen, resided separately two to three blocks away-and had been for some time. (ECF No. 33-5 at PageID.169.)

         In the meantime, Chief Campbell-a Schoolcraft Police Chief-came as the requested back-up. He recalled being given a summary from Officer Petersen.

He told me that Mrs. Boyer had contacted their office and wanted an officer to come stand by as a peace officer. That she was going through a divorce with Mr. Boyer. That they would be soon divorced, I believe in September; that they were currently separated. That there had been a couple two or three attempts at getting some property that they had both agreed on, and that Mr. Boyer wasn't available, and that it was that particular day on the 13th, that was supposed to occur, where she was supposed to get some of the property. And he said he wasn't gonna be available for the day. And she told Officer Petersen she was just gonna go get the property and she wanted an officer to stand by. And Officer Petersen told me that her name was still on the deed to the property, and that he wanted at least one other officer to be there.

(ECF No. 33-4 at PageID.163.)

         Chief Campbell also testified that he knew, at least at some point, that Marc was the only resident at the home, and Denise was living elsewhere. (Id. at PageID.164.)

         Officer Petersen, without calling the Vicksburg Chief or checking with any other officer in his Department, “accompanied [Denise] into the residence, which she unlocked with her own key.” (ECF No. 33-5 at PageID.173.)[2] Officer Petersen did not knock-and neither did Denise Boyer. (Id.)

         “[W]e went through . . . the ground-level floor, ” Officer Petersen testified. “I didn't follow her upstairs; she went upstairs and checked the upstairs area. And I believe I went down into the garage area with her, just to follow her down there to see if Marc was down in the garage area.” (Id. at PageID.173.) Chief Campbell asserts that Officer Petersen accompanied Denise upstairs-as a factual dispute, the Court assumes Petersen did just that.

         Chief Campbell “briefly” entered the home-“stepped just inside the threshold of the doorway, ” in his own words-because he “wanted to make sure that [he] was in hearing distance if there was any-if he encountered any issues or problems.” (ECF No. 33-4 at PageID.165.)

         After verifying Mr. Boyer was not there, Officer Petersen “st[ood] inside the front door, ” and Petersen remained at the residence for as much as 45 minutes. (ECF No. 33-5 at PageID.173.) The Officer “observed various items [Denise] was taking.” (Id.) At no time did Petersen or any other officer attempt to make contact with Marc Boyer. When directly asked what justification existed for entering the home, the Officer replied: “I was accompanied by the owner of the home.” (Id.)

         He also testified he wanted to make sure “Denise was safe, ” but admitted that he had no evidence or prior history with Mr. Boyer to suggest he was, for example, armed or dangerous. (Id. at PageID.174.)[3] Denise did not assert that Marc was dangerous, either.

         Troublingly, one month later, Denise Boyer once again attempted to have a “peace officer” escort her. Officer Petersen's report states “On today's date, Denise Boyer called VPD and requested a peace officer . . .” (Id. at PageID.178.) Officer Petersen recalled the facts: “Marc wouldn't let Denise in. She wanted to go in and take pictures of the house. After Marc wouldn't let her in, I suggested that they both try to work things out and communicate and, you know, figure a date that would work for both of them.” (Id.)

         At another point in time, village officers understood and memorialized what they believed to be clearly established law in a police report: “Denise explain[ed] that she plans on entering the home on Wilson Street at 12:03 am on October 1 to get [her] stuff, [as] [Marc] is supposed to be out by then, so [s]he ha[s] a right to be there, ” but “[w]e explained to [Denise] that she cannot illegal [sic] enter the home while [Marc] is still residing there.” (ECF No. 33-5 at PageID.179.) In other words, Officer Petersen's handling of the entire situation that gave rise to this lawsuit was an aberration-his alleged understanding and behavior at that time was never replicated and, indeed, rejected on every other occasion.

         II. Legal Framework

         Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party's case. Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         Once the moving party has carried its burden, the nonmoving party must set forth specific facts, supported by evidence in the record, showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586. The question is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252. The function of the district court “is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Resolution Trust Corp. v. Myers, 9 F.3d 1548 (6th Cir. 1993) (citing Anderson, 477 U.S. at 249).

         III. Analysis

         A. Count I (Fourth/Fourteenth Amendment: Unconstitutional Search)

         i. Legal Framework: ...

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