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Green v. Morsey

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

March 27, 2017

Jermaine Green, Plaintiff,
A. Morsey, et. al., Defendant.

          R. Steven Whalen, U.S. Magistrate Judge


          Arthur J. Tarnow, Senior United States District Judge

         Plaintiffs filed suit against Defendants on July 15, 2015 [1]. Defendants filed a Motion for Summary Judgment [30] on August 19, 2016. Plaintiffs responded on September 28, 2016 [37] and Defendants replied on October 11, 2016 [39]. A motion hearing was held on this pending motion on March 20, 2017. For the reasons stated below, Defendants' Motion for Summary Judgment [30] is GRANTED IN PART in regards to Plaintiff's state law claims and DENIED IN PART in relation to Plaintiff's §1983 claim.

         Factual Background

         On 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].

         After 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].

         Following 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].

         At 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].

         As 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].

         Officer 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.

         Officer 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 at 65:5].

         Plaintiff 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].

         It is 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.

         During 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 ...

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