United States District Court, E.D. Michigan, Northern Division
DENNIS F. BRENAY, SR. and LINDA BRENAY, Plaintiffs,
MICHAEL SCHARTOW, et al, Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
Honorable Thomas L. Ludington, Judge
Dennis F. Brenay, Sr., and Linda Brenay brought suit against
Defendants Michael Schartow, Kyle Glocksine, Troy Sierras,
City of Essexville, and Bay City on September 10, 2015.
Compl., ECF No. 1. Plaintiffs alleged two claims in the
Complaint. The first, brought pursuant to 42 U.S.C. §
1983 against the individual officers, alleges that Defendants
unlawfully entered Plaintiffs' home, used excessive
force, and caused Brenay, Sr., to be arrested without
probable cause. Id. at 14-15. The second, brought
against the City of Essexville and Bay City pursuant to
§ 1983, alleges a policy and practice of inadequate
training and supervision. Id. at 15-17. Plaintiffs
contend that the officer Defendants violated their
constitutional rights when attempting to arrest their son,
Dennis Brenay, Jr., for a personal protective order
violation. On September 6, 2016, the parties submitted a
stipulated proposed order for the dismissal of Defendant Kyle
Glocksine. ECF No. 29. At the close of discovery, the
remaining Defendants filed motions for summary judgment. ECF
Nos. 31, 32. On October 17, 2016, the parties submitted
stipulated proposed orders for the dismissal of Defendants
City of Essexville and Bay City. ECF Nos. 35, 36. On November
30, 2016, the Court granted summary judgment for Defendants.
In the order, the Court explained that Defendants were
entitled to qualified immunity because their actions were not
clearly unlawful when they occurred. On December 14, 2016,
Plaintiffs filed a motion for reconsideration.
to Eastern District of Michigan Local Rule 7.1(h), a party
can file a motion for reconsideration of a previous order,
but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997). “[T]he Court will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or
by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
See also Bowens v. Terris, No. 2:15-CV-10203, 2015
WL 3441531, at *1 (E.D. Mich. May 28, 2015).
their motion for reconsideration, Plaintiffs make only one
argument that was not previously considered by the Court.
Specifically, Plaintiffs argue that under clearly settled law
it was unlawful for the officers to reach through the doorway
and grab Brenay, Jr, by the wrist after informing him he was
under arrest. In the Court's order granting summary
judgment, the Court concluded that the illegality of the
officer's conduct was not beyond dispute, meaning that
they were protected by qualified immunity. The following
sections of that order relevant here are:
In United States v. Santana, the suspect was
“standing in the doorway of the house.” 427 U.S.
38, 39 (1976). As the officers approached, Santana
“retreated into the vestibule of her house.”
Id. The officers followed through the open door and
arrested Santana. Id. The Court explained that
“‘[w]hat a person knowingly exposes to the
public, even in his own house or office, is not a subject of
Fourth Amendment protection.'” Id. at 42
(quoting Katz v. United States, 389 U.S. 347, 351
(1967)). The Court further concluded that Santana was
“not merely visible to the public but was as exposed to
public view, speech, hearing, and touch as if she had been
standing completely outside her house.” Id.
Thus, the Court held that the warrantless arrest was not
unconstitutional, even though Santana retreated into her
home, because the arrest had begun in a public place.
Id. at 43.
Plaintiffs are correct that the Supreme Court has drawn a
firm line at the entrance of the house, see Payton [v.
New York], 445 U.S.  at 590 , but
Santana demonstrates that a person standing in the
doorway of the home cannot necessarily reclaim Fourth
Amendment protection by simply retreating into his or her
home. In Santana, the Court emphasized that the
suspect was “exposed to public view, speech, hearing,
and touch.” 427 U.S. at 42. While the Michigan Circuit
Court and Court of Appeals concluded that Brenay, Jr.,
“never placed himself in a public place, ” the
testimony of all parties clearly establishes that Brenay,
Jr., was standing close enough for the officers to publically
view him, hear him, and touch him. See People v.
Brenay, No. 323284, 2015 WL 8984161 at *3 (Mich. Ct.
App. Dec. 15, 2015); Brenay, Sr., Dep. at 159-164; Linda
Brenay Dep. at 149-150; Brenay, Jr., Dep. at 74-75. That is,
Brenay, Jr., was standing close enough for an officer to
reach inside the doorway and grab his wrist without actually
entering the house. Moreover, Brenay, Jr., has testified that
he understood that he was being arrested before the door
began to shut and Sierras grabbed his wrist. Brenay, Jr.,
Dep. at 75-77. Under these circumstances, a reasonable
officer could have believed that Brenay, Jr., had exposed
himself to public view, hearing, and touch, as explained by
the Santana Court. Further, the closing door and the
resistance by Brenay, Jr., after Sierras grabbed his wrist
could be interpreted by a reasonable officer as an attempt by
the suspect to escape further into the house after an arrest
had been set in motion.
Importantly, when examining the question of the
Defendants' entitlement to qualified immunity, the
question for the Court is not whether the officers'
conduct was actually unconstitutional. Rather, Defendants are
entitled to qualified immunity if it is not “beyond
debate” that their actions violated clearly established
law. Ashcroft v. al-Kidd, 563 U.S. at 741. Given
Brenay, Jr.'s, proximity to the door, the question of
whether he placed himself in public view is not beyond
debate. Because not “every reasonable
official'” would have understood that the arrest
was unlawful at the time it occurred, the arrest did not
violate a clearly established right. Reichle, 132
S.Ct. at 2093. Accordingly, Defendants are entitled to
qualified immunity on Plaintiffs' unlawful entry claim.
Op. & Order at 9, 12-13, ECF No. 49.
cite for the first time, Cummings v. City of Akron,
418 F.3d 676 (6th Cir. 2005). In Cummings, officers
came to a house looking for a suspect involving an alleged
domestic disturbance. Id. at 679. One officer opened
the outside screen door and “knocked on the inside
entry door.” Id. Cummings, who was not the
suspect, came to a window and asked the officers what they
wanted. Id. The officers directed Cummings to come
to the door. Id. Cummings partially opened the
inside entry door and spoke briefly with the officers.
Id. During the conversation, one of the officers
placed his foot inside the doorway. Id. The officers
asked if the suspect was inside the home. Id.
Cummings told the officers that he was not and denied their
requests to enter the home. Id. At this point, one
officer asked Cummings about the smell of marijuana emanating
from the home. Id. In response, Cummings attempted
to close the front door but was unable to because one officer
still had his foot blocking the door's path. Id.
The officers then pushed the door open, entered
Cummings's home, and arrested him. Id.
Sixth Circuit held that the officers were not entitled to
qualified immunity because clearly established law made their
entry unlawful. The Sixth Circuit first rejected the
Defendants' argument that, because Cummings shut the door
on the officer's foot, there was probable cause to
believe he had committed the crime of assault and they could
enter the home in hot pursuit. Id. at 685-86. The
Sixth Circuit explained that “it is highly questionable
whether Cummings' act of closing the door on [the
officer's] foot actually constituted an assault.”
Id. at 686. For that reason, the hot pursuit of a
fleeing felon exception to the warrant requirement did not
Sixth Circuit also distinguished the facts in
Cummings with those in Santana:
In Santana, the Supreme Court upheld the
effectuation of a warrantless arrest of the defendant inside
her home, because the police initiated the arrest while she
was standing in the open doorway of her house, and she
retreated inside before the police could apprehend her. . . .
[I]n contrast to Santana, Cummings never fully exposed
himself to the public view, given that he only opened the
door very slightly, and only at the request of the police.
Additionally, unlike the situation in Santana,
Sherman and Vaughn did not attempt to arrest ...