United States District Court, E.D. Michigan, Southern Division
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [#38,
PAGE HOOD, CHIEF JUDGE
Christopher Lee-Murray Bey filed this 42 U.S.C. § 1983
action on September 29, 2014, alleging that Defendants
violated his constitutional rights when they illegally
stopped and seized him. On June 28, 2016, Defendants City of
Livonia (“Livonia”), Andrew McKinley
(“McKinley”), Eric Eisenbeis
(“Eisenbeis”), and Megan McAteer
(“McAteer”) filed a Motion for Summary Judgment
[Dkt. No. 38], and Defendants Charter Township of Canton
(“Canton”) and Adam Falk (“Falk”)
filed a Motion for Summary Judgment. [Dkt. No. 39] Both
motions have been fully briefed. The Court held a hearing on
the motions on November 9, 2016.
reasons that follow, the Court denies in part and grants in
part the Motion for Summary Judgment filed by Livonia,
McKinley, Eisenbeis, and McAteer and denies in part and
grants in part the Motion for Summary Judgment filed by
Canton and Falk.
March 16, 2013, sometime after midnight, 26-year old
Plaintiff Christopher Bey and his friends, 23-year old
DeAires Freeman and 19-year old Devon Burt drove to a Meijer
Department Store in the City of Livonia to buy a portable
space heater. (Dkt. No. 46, Ex. A at 6, 25-26, 29; Dkt. No.
46, Ex. B at 14, 24, 31; Dkt. No. 46, Ex. C at 19-20) The
weather was cold but clear. (Dkt. No. 46, Ex. D at 50) They
drove together in Plaintiff's newly purchased 2000
Plymouth Grand Voyager that had a valid pink temporary
license tag prominently displayed. (Dkt. No. 46, Ex. A at 38,
53) All three men are black.
three men went to the Meijer at I-96 and Middlebelt in
Livonia but were unable to locate a suitable heater. (Dkt.
No. 46, Ex. A at 46-47) They left the store and drove to a
Walmart directly across the street, only to find that it was
closed. (Dkt. No. 46, Ex. A at 49, 265-267; Dkt. No. 46, Ex.
D at 15-17, 36) They remained in the parking lot for a few
minutes while Plaintiff used his cell phone and located
another 24-hour Walmart that was open in the area. (Dkt. No.
46, Ex. B at 31-32) They then drove to the Canton Walmart.
Canton Walmart, the three men walked into the store, got a
shopping cart and headed towards the back of the store.
Freeman looked at a BB gun in the sporting good section.
(Dkt. No. 46, Ex. C at 26) Plaintiff found two portable
heaters, placed them in his cart and proceeded to check-out.
(Dkt. No. 46, Ex. A at 50, 68) Plaintiff took out his wallet,
handed one credit card to the cashier and completed his
purchase. (Dkt. No. 46, Ex. A at 51-52; Dkt. No. 46, Ex. E at
4) The three men left the store and walked backed to the
Minivan. (Dkt. No. 46, Ex. A at 52) Plaintiff got in the rear
driver's side seat, fastened his seat belt and closed the
door. (Dkt. No. 46, Ex. A at 69; Dkt. No. 46, Ex. B at 33,
least three police cars immediately surrounded the Minivan
“like something out of SWAT.” (Dkt. No. 46, Ex. A
at 55-56, 184; Dkt. No. 46, Ex. F at 38-39; Dkt. No. 46, Ex.
C at 34-35, 66; Dkt. No. 46, Ex. B at 34-35) Falk, a white
uniformed Canton Township police officer, approached
Plaintiff and ordered him to “Get out of the
car.” (Dkt. No. 46, Ex. A at 58, 63; Dkt. No. 46, Ex. F
at 25-26, 36-37, 40; Dkt. No. 46, Ex. G at 11) Plaintiff
obeyed the command and exited the vehicle. (Id.) For
his safety and that of the officers, Plaintiff told Falk he
had a handgun and pointed to his right hip where it was
holstered. (Dkt. No. 46, Ex. A at 59; Dkt. No. 46, Ex. F at
40-41, 44) Falk confiscated the weapon. Falk told Plaintiff
“we were investigating a possible retail fraud or
credit card fraud that had happened in the store.”
(Dkt. No. 46, Ex. F at 45) Plaintiff produced a sales receipt
and Falk “was satisfied at that point that they had not
committed retail fraud-or credit card fraud[.]” (Dkt.
No. 46, Ex. A at 61, 71-72; Dkt. No. 46, Ex. F at 46)
Plaintiff handed Falk his Concealed Weapons Permit License
(“CPL”). (Dkt. No. 46, Ex. A at 188; Dkt. No. 46,
Ex. F at 49) Falk had Canton dispatch run the CPL and
discovered it had expired. He then arrested Plaintiff for
unlawful carrying of a concealed weapon. (Dkt. No. 46, Ex. A
at 70-71, 82, 109; Dkt. No. 46, Ex. F at 47)
the foregoing events, Plaintiff, Freeman, and Burt had been
under surveillance by Livonia Police Department's plain
clothes Special Operations Unit (“SOU”). (Dkt.
No. 46, Ex. H at 46; Dkt. No. 46, Ex. D at 8-9) The
four-member SOU consisted of McKinley, Eisenbeis, McAteer
(collectively, the “SOU officers”) and Officer
Richard Ostrowski, all of whom are white. (Dkt. No. 46, Ex.
I; Dkt. No. 46, Ex. H at 7; Dkt. No. 46, Ex. J at 16)
McKinley was the Officer in Charge. (Dkt. No. 46, Ex. J at
7-8) Surveillance began when McKinley saw a “beat
up” minivan travelling southbound on Middlebelt Road in
Livonia. (Dkt. No. 46, Ex. J at 17, 51) The vehicle
“wasn't speeding or driving in a manner that would
raise any suspicion.” (Dkt. No. 46, Ex. J at 17) Upon
seeing the minivan, McKinley made a U-turn and began to
follow based on a “hunch.” (Dkt. No. 46, Ex. J at
noticed the minivan had a temporary license plate (Dkt. No.
46, Ex. D at 9) and watched the vehicle “occupied by
three black males” turn into the Livonia Meijer parking
lot. (Dkt. No. 46, Ex. E at 3; Dkt. No. 46, Ex. J at 17,
52-53) There was nothing unusual about where or how the
minivan parked. (Dkt. No. 46, Ex. J at 20) SOU watched the
three men enter the store. (Dkt. No. 46, Ex. E at 3)
purportedly called Livonia dispatch, who ran the temporary
plate through the Law Enforcement Information Network
(“LEIN”) but was not “able to verify
it.” (Dkt. No. 46, Ex. F at 55; Dkt. No. 46, Ex. J at
18) The officers acknowledge that LEIN was not reliable for
recent vehicle transactions because it may take days before a
vehicle is entered into the LEIN system. (Dkt. No. 46, Ex. J
at 54; Dkt. No. 46, Ex. H at 44-45; Dkt. No. 46, Ex. D at 57,
63) McKinley decided not to stop the minivan because
“they hadn't done anything wrong. I mean we were
just watching them” just in case “something else
should happen to occur.” (Dkt. No. 46, Ex. J at 18)
left the Meijer lot for a short period to attend to
“something else going on at the city at the
time.” (Dkt. No. 46, Ex. J at 17, 21) When they
returned, the minivan was still parked in the well-lit lot
and surveillance reestablished. (Dkt. No. 46, Ex. J at 21-22)
The officers had no information that the three men had
engaged in any unlawful conduct inside the store. (Dkt. No.
46, Ex. J at 21-22, 25) The officers next saw Plaintiff and
his friends drive from the Meijer lot to a Walmart directly
across the street, but that Walmart was closed. (Dkt. No. 46,
Ex. J at 23) The minivan remained in the lot for a few
minutes before: (a) heading west on I-96 to northbound I-275,
(b) exiting at Six Mile Road (the first exit), (c) getting
back on southbound I-275, (d) exiting at Ford Road, and (e)
parking in the Canton Walmart parking lot. (Dkt. No. 46, Ex.
J at 23; Dkt. No. 46, Ex. D at 22, 36-37; Dkt. No. 46, Ex. E
at 3) The SOU officers followed the minivan in a
caravan of four unmarked vehicles. (Dkt. No. 38, Ex. I)
McKinley ordered McAteer to go into the store “to keep
walking surveillance on the subjects.” (Dkt. No. 46,
Ex. E at 4)
used her cell phone to relay what she saw to McKinley. (Dkt.
No. 46, Ex. H at 27; Dkt. No. 46, Ex. J at 33-34, 37-38) She
noticed one subject in “the hunting section inquiring
about guns.” (Dkt. No. 46, Ex. H at 20-21, 29-31; Dkt.
No. 46, Ex. D at 24; Dkt. No. 46, Ex. J at 29-30) She saw the
three men go to the electronics department where
“nothing in particular stands out.” (Dkt. No. 46,
Ex. H at 22) McAteer saw the subjects place items in their
shopping cart. (Dkt. No. 46, Ex. H at 23) She noticed nothing
unusual as they made their way to the cashier. (Dkt. No. 46,
Ex. H at 24-25) McAteer was watching for a
“push-out.” (Dkt. No. 46, Ex. H at 31) McKinley
explained that a “push-out” is when a subject
fills a shopping cart with merchandise and runs it past the
cashier and out the door. (Dkt. No. 46, Ex. H at 26-27, 31;
Dkt. No. 46, Ex. J at 57, 64; Dkt. No. 46, Ex. F at 26-27,
36) There was no push-out. (Dkt. No. 46, Ex. J at 64)
checkout register, McAteer saw one of the
“subjects” “flipping through some cards to,
you know, pick a card.” (Dkt. No. 46, Ex. H at 26,
31-32, 34-37; Dkt. No. 46, Ex. D at 25; Dkt. No. 46, Ex. J at
38) She reported that one of the young men selected a single
card from others, handed it to the cashier and paid for the
merchandise without incident. (Dkt. No. 46, Ex. H at 26,
31-32, 34-37, 39; Dkt. No. 46, Ex. D at 25; Dkt. No. 46, Ex.
J at 38; Dkt. No. 46, Ex. E at 4) McAteer saw no evidence of
any crime. (Dkt. No. 46, Ex. H at 31, 34) McKinley also knew
that the three young black men had “absolutely
not” committed a crime in Livonia or Canton. (Dkt. No.
46, Ex. J at 46-47)
had the Canton police stop the three young men “to make
contact and identify these people.” (Dkt. No. 46, Ex. J
at 42) McKinley explained his intent: “Well, we could
get identification. That was our first intent, to get these
people identified. You know, maybe they're part of a
crew. This could be intelligence that we could use later
through identification. Maybe they were involved in something
in another city and, you know, information sharing.”
(Dkt. No. 46, Ex. J at 43, 45)McKinley explained that the
secondary purpose for the stop was to get an
“explanation” why they were shopping. (Dkt. No.
46, Ex. J at 44)
to or upon arriving at the Canton Walmart, McKinley phoned a
friend who worked for the Canton Police Department “and
gave them an overview of what we had in Livonia and how it
came to Canton, you know. So they would have a history of
what occurred.” (Dkt. No. 46, Ex. J at 33) While en
route to the Canton store Falk was “advised [Livonia
police] were following three black males inside the Canton
store that they had been watching at one of their Livonia
Walmart stores” and were “shopping around.”
(Dkt. No. 38, Ex. K at 4; Dkt. No. 39, Ex. G at
Dkt. No. 46, Ex. D at 29; Dkt. No. 38, Ex. I) Upon meeting
the SOU officers at the Canton Walmart, Falk was given a
Livonia prep radio “so [he] can kind of hear what's
going on through me-through Megan [McAteer], through me and
then through the police radio.” (Dkt. No. 46, Ex. J at
32; Dkt. No. 46, Ex. F at 13, 33-34)
was completely reliant on his “law enforcement
intuition” and the little information received from the
SOU. (Dkt. No. 46, Ex. F at 22, 58, 61) Falk assumed that
“[t]here's a reason why they're following these
subjects around at this time of night, they're probably
doing retail fraud.” (Dkt. No. 46, Ex. F at 22, 32, 41)
Falk had no information that Plaintiff and his friends and
done anything illegal. (Dkt. No. 46, Ex. F at 34-36) He
simply “assumed” that “there's a
possibility of credit card fraud.” (Dkt. No. 46, Ex. F
marked Canton police cars surrounded the minivan in the
parking lot, with the four unmarked vehicles staged by the
SOU officers nearby. This was not a traffic stop. (Dkt. No.
46, Ex. F at 63, 77.) The three young men were not free to
leave. (Id.) Falk immediately ordered Plaintiff out
of the vehicle. (Dkt. No. 46, Ex G at 40) Plaintiff
obediently complied. He exited the vehicle and told Falk that
he was armed and gave the officer his CPL. Falk had Canton
run the CPL and discovered that it was expired. (Dkt. No. 38,
Ex. I) Plaintiff was arrested and placed in the backseat of
Falk's cruiser - but no seatbelt was utilized for
Plaintiff. (Dkt. No. 38, Ex. K at 5) On the ride to the
Canton station, Plaintiff struck his head and began seeing
stars. (Dkt. No. 38, Ex. K at 5)
was charged in Wayne County Circuit Court with a felony of
carrying a concealed weapon. (Dkt. No. 46, Ex. K) Plaintiff
filed a motion to suppress because the seizure was
unreasonable and violated his Fourth Amendment rights. At the
suppression hearing, Falk was unable to identify any
suspicious activity to justify the stop. (Dkt. No. 46, Ex. G
at 12-16) Falk testified that Plaintiff engaged in suspicious
activity at the Livonia Walmart by walking with a shopping
cart, looking at items but not buying anything. (Id.
at 14-15.) Falk testified that while in Canton “I did
not have any suspicious activity.” (Id. at
17.) At that point the circuit court judge stated:
THE COURT: I'm thinking we're in Russia or something.
I'm not sure what's going on here. I don't know
what's going on here. I don't even know why you have
any more questions. This is a no-brainer. The Court is going
to suppress the evidence.
The Court would find that there was absolutely no reason in
the world to stop these people. In other words, I was waiting
for you to say that they left the store without paying or
something. I don't know what they did. You said, Livonia
said they didn't do anything illegal. That they were
acting suspicious. I mean I must have committed a hundred of
those suspicious - - I go in stores all the time and push
stuff around and leave a buggy with stuff in it. I've
even left perishable items in the buggy. That's probably
a crime. Didn't do anything wrong.
I am shocked - - with all due respect, Officer - - that you
actually stopped these - - this person, because of some
suspicious activity. If they paid for the items in the buggy
and then walked out, why would you question them? That made
no sense to me. And I'm not here to ask you a question.
I'm here - - based on the testimony that I've heard
there was absolutely no reason to stop them, other than
curiosity to see if they maybe did something wrong or if they
had some - - excuse me - - if they had some contraband or a
firearm on them. Other than that, there was no reason to stop
them. There was no reason to question them, especially this
I don't know if - - I was waiting for the smoking gun.
There's nothing. So there was no reason to question this
individual or stop him, and the Court's going to suppress
Id. at 18-19. The Wayne County Circuit Court
dismissed that case, with prejudice. (Dkt. No. 46, Exs. L and
M.) The prosecutor did not appeal.
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in the light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be “no genuine
issue as to any material fact, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look to the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.
recently stated by the Supreme Court:
The doctrine of qualified immunity shields officials from
civil liability so long as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known. A clearly
established right is one that is sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right. We do not require a case
directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate. Put
simply, qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)
(citations and quotation marks omitted). Qualified immunity
is a two-step process. Saucier v. Katz, 533 U.S. 194
(2001). First, the Court determines whether, based upon the
applicable law, the facts viewed in a light most favorable to
the plaintiff show that a constitutional violation has
occurred. Second, the Court considers whether the violation
involved a clearly established constitutional right of which
a reasonable person would have known. Saucier v.
Katz, supra.; Sample v. Bailey, 409
F.3d 689 (6th Cir. 2005). Only if the undisputed facts, or
the evidence viewed in a light most favorable to the
plaintiff fail to establish a prima facie violation of clear
constitutional law can this court find that the Defendants
are entitled to qualified immunity. Turner v. Scott,
119 F.3d 425, 428 (6th Cir. 1997).
government official has raised the defense of qualified
immunity, the plaintiff “bears the ultimate burden of
proof to show that the individual officers are not entitled
to qualified immunity.” Cockrell v. City of
Cincinnati, 468 F.App'x 491, 494 (6th Cir. 2012)
(citation omitted). A plaintiff must also establish that each
individual defendant was “personally involved” in
the specific constitutional violation. See Salehphour v.
University of Tennessee, 159 F.3d 199, 206 (6th Cir.
1998); Bennett v. Schroeder, 99 F.App'x 707,
712-13 (6th Cir. 2004) (unpublished) (“It is
well-settled that to state a cognizable Section 1983 claim,
the plaintiff must allege some personal involvement by the
each of the named defendants”).
alleges that Defendants violated: (1) his Fourth Amendment
rights when they seized him without legal justification; and
(2) his Fourteenth Amendment equal protection rights because
he was targeted, scrutinized, and stopped because of his
race. Defendants assert that they had reasonable suspicion to
stop Plaintiff and that race was not a factor in their
decision to follow or seize Plaintiff.
devote some of their argument to the issue of probable cause
for arresting Plaintiff for carrying a concealed weapon.
Those arguments ignore that Plaintiff does not challenge
whether there was probable cause for the arrest; rather,
Plaintiff challenges whether there was a legal basis for the
stop and seizure in the first place. As those arguments are
irrelevant, the Court does not analyze them.
Fourth Amendment Claims
the Fourth Amendment, law enforcement officer may initiate a
conversation with a citizen without implicating Fourth
Amendment rights. United States v.
Mendenhall, 446 U.S. 544, 553-54 (1980). An
investigatory (Terry) stop or detention requires
that the officer has reasonable suspicion that a crime may
have occurred. Terry v. Ohio, 392 U.S. 1, 30 (1968).
See also United States v. Sokolow, 490 U.S. 1, 7
(1989) (citing Terry, 392 U.S. at 30) (reasonable
suspicion that a crime “may be afoot” will
support a lawful investigatory stop). The officer must
possess “a particularized and objective basis for
suspecting the particular person . . . of criminal
activity” based on “specific and articulable
facts.” Smoak v. Hall, 460 F.3d 768, 778-79
(6th Cir. 2006) (internal citations omitted).
reasonable suspicion “must be supported by specific and
articulable facts that would warrant a man of reasonable
caution in the belief that the action taken was
appropriate.” Terry, 392 U.S. at 88 (internal
quotations and citation omitted). Reasonable suspicion
“requires more than a mere hunch, but is satisfied by a
likelihood of criminal activity less than probable cause, and
falls considerably short of satisfying a preponderance of the
evidence standard. If an officer possesses a particularized
and objective basis for suspecting the particular person of
criminal activity based on specific and articulable facts, he
may conduct a Terry stop.” Dorsey v. Barber,
517 F.3d 389, 395 (6th Cir. 2008) (quoting Smoak,
460 F.3d at 778-79).
U.S. v. Arvizu, 534 U.S. 266, 273-274 (2002), the
Supreme Court stated:
When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly
that they must look at the “totality of the
circumstances” of each case to see whether the
detaining officer has a “particularized and objective
basis” for suspecting legal wrongdoing. See,
e.g., [United States v. Cortez, 499 U.S. 411,
417-18 (1981)]. This process allows officers to draw on their
own experience and specialized training to make inferences
from and deductions about the cumulative information
available to them that “might well elude an untrained
person.” Id., at 418. See also Ornelas v.
United States, 517 U.S. 690, 699 (1996).
court should ask whether the agents acted reasonably under
settled law in the circumstances, not whether another
reasonable, or more reasonable, interpretation of the events
can be constructed . . . after the fact.” Hunter v.
Bryant, 502 U.S. 224, 228 (1991). “[T]he
determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior.
Illinois v. Wardlow, 528 U.S. 119, 125 (2000)(citing
U.S. v. Cortez, 449 U.S. 411, 418 (1981)).