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Bey v. Falk

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

March 29, 2017

CHRISTOPHER LEE-MURRAY BEY, Plaintiff,
v.
ADAM FALK, CANTON CHARTER TOWNSHIP, CITY OF LIVONIA, ANDREW McKINLEY, ERIC EISENBEIS, and MEGAN McATEER, Defendants.

          ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [#38, 39]

          DENISE PAGE HOOD, CHIEF JUDGE

         I. INTRODUCTION

         Plaintiff 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.

         For the 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.

         II. BACKGROUND

         On 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.

         The 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.

         At the 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, 35)

         At 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)

         During 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 54)

         McKinley 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)

         McKinley 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)

         The SOU 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)[1] 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)

         McAteer 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)

         At the 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)

         McKinley 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)[2]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)[3]

         Prior 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 11;[4] 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)

         Falk 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 at 36)

         Three 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)

         Plaintiff 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 individual.
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 the evidence.

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.

         III. APPLICABLE LAW

         A. Rule 56

         Rule 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.

         B. Qualified Immunity

         As 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).

         Once a 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”).

         IV. ANALYSIS

         Plaintiff 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.

         Defendants 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.

         A. Fourth Amendment Claims

         Under 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).

         The 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).

         In 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).

         “The 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)).

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