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Brenay v. Schartow

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

December 21, 2016

MICHAEL SCHARTOW, et al, Defendants.


          Honorable Thomas L. Ludington, Judge

         Plaintiffs 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.


         Pursuant 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).


         In 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. [573] at 590 [1980], 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.

         Plaintiffs 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.

         The 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 apply.

         The 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 ...

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