United States District Court, E.D. Michigan, Southern Division
Steven Whalen, U.S. Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 
J. Tarnow, Senior United States District Judge
filed suit against Defendants on July 15, 2015 .
Defendants filed a Motion for Summary Judgment  on August
19, 2016. Plaintiffs responded on September 28, 2016  and
Defendants replied on October 11, 2016 . A motion hearing
was held on this pending motion on March 20, 2017. For the
reasons stated below, Defendants' Motion for Summary
Judgment  is GRANTED IN PART in regards to
Plaintiff's state law claims and DENIED IN PART in
relation to Plaintiff's §1983 claim.
January 30, 2013, Plaintiff was having electrical service
restored to his house which lacked power. [37-2 at 25:11].
Plaintiff and his girlfriend, Chynna White
(“Chynna”), left the house to get something to
eat while the DTE Power workers were restoring the
electricity. [Id. at 25:13-15]. While they were
away, the DTE workers called to inform them that a group of
men had stolen a package from Plaintiff's back stoop.
[Id. at 29:6-14].
getting the call, Plaintiff and Chynna returned to the house,
parked the car in the front, and proceeded to the back of the
house. [Id. at 32:13-20]. While they were walking, a
group on men appeared leaving the back of the house.
[Id. at 32:19-22]. Plaintiff confronted the group
and asked them to return whatever they had stolen.
[Id. at 32:22-23]. Plaintiff testified that his
loaded glock .45 was in his hip-holster that night, covered
by his shirt. [Id. at 47-48:19-15]. Plaintiff saw
the group of men were reaching and pulling up their pants
and, threatened by those actions, he fired a warning shot.
[Id. at 34: 1-6].
the warning shot, the men ran and jumped into a van or truck
and drove off. [Id. at 33:8-13]. Once the men left,
Plaintiff told Chynna to go into the house and call the
police [Id. at 33:13-14]. Detroit Police
Department's Dispatch (“dispatch”) received a
call at 6:38:53 pm reporting a larceny at 17334 Salem Street.
There was no mention of shots having been fired. [30-3]. At
7:32:39 pm, dispatch received a call, allegedly from
Plaintiff's neighbor, which reported that someone who had
threatened to shoot up her house, had subsequently fled the
scene in a silver Impala. [30-3].
8:31:33 pm, dispatch received a call, which reported that a
group of four men had come with guns. threatening to shoot up
the place, and were standing in front of a brown Taurus
parked at 17334 Salem. [30-5]. This information was relayed
to Officers Moresy and Sowle, who were sent to the location
on a shots fired run. [30-5]. Due to the nature of the calls
relating to the address, and the potential for confrontation,
Officers Lyons and Terechenok were called for back up.
[30-6]. These officers were in the area investigating a
report of a dark truck firing shots from an AK-47 out of
their window. [30-6].
Officers Sowle and Mosey approached the scene, they observed
a group of men standing next to a brown Ford Taurus parked in
front of 17344 Salem run to the rear of the premesis. [30-4].
Officer Sowle spoke with Plaintiff's neighbor at 17355
Salem Street. [30-4]. She indicated that her neighbor
(Plaintiff) “had been outside flashing a gun that was
in his waistband to her and visitors that were at the home
shortly before (police arrived), ” and that she had
heard one shot fired. [30-4].
Lyons testified that he knocked on the front door of 17334
Salem Street and a woman, who appeared to be visually upset
and crying, appeared at the door. [37-4 at 11:1-2]. The door
was a security door that the woman stated she could not open
without the key, which was in possession of her boyfriend
[30-4]. Officer Lyon also saw two men inside of the house.
[37-4 at 11:20-23]. The woman indicated that she would open
the back door for the officers.
Lyons and Terechnok headed to the back door and, during this
time, heard loud crashing inside the home, accompanied by
crying and screaming. [30-4; 37-4 at 12:9-16]. Officer Lyons
reached the back door and began knocking forcefully. [30-4].
Plaintiff testified the door was being kicked by the police,
and that it was “jumping” when the officers
arrived at the back door. [37-2 at 64:4-8]. Officer Lyons
testified that the young woman opened the door [37-4 at
13:18], while Plaintiff stated that he opened the door [37-2
testified that the police had their weapons drawn, and called
for all people to exit the house and that four individuals
and the young woman from the front door were inside the
house, and detained for investigation while an officer
entered the house to search. [37-2 at 65:16-22; 30-4].
Officers Lyons, Morsey and Sowle stated that they detained
the individuals in the kitchen next to the door after they
entered the house to do a protective sweep. [37-2 at 67:20].
unclear whether the people in the house were kept inside the
house, or came outside, prior to being detained. It is also
unclear who opened the back door. These are questions of fact
that are material to the exigency and qualified immunity
analysis, and therefore a possible material issue of fact
remains disputed at this time, and summary judgment should
not be granted on the claims that concern the legality of the
warrantless search of the house.
the protective sweep of the house, Officer Morsey's
report indicates that he smelled a strong odor of marihuana
inside the house [30-4]. During this sweep of the house,
Defendants Morsey and Sowley went down the basement stairs
from the kitchen and discovered thirty-eight marihuana plants
under heat lamps in plain sight. [30-4]. Following the
search, Officer Morsey asked who was the owner of the house
at 17334 Salem. Plaintiff identified himself as the owner
[30-4]. Plaintiff also admitted to shooting his gun, but
clarified that he had a Concealed Pistol License card
(“CPL”). Id. Plaintiff subsequently
produced the card to Officer Morsey, who ran the number
through LIEN and discovered that the license had been
revoked. [30-8]. When questioned about his gun, Plaintiff
stated that he did not have his weapon on his person [30-4].
Officer Morsey found a silver, five-shot revolver on
Plaintiff's lawn with four live rounds. [30-9]. Based on
the evidence and admissions by Plaintiff, he was issued a
ticket for discharging a ...