United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY
V. PARKER U.S. DISTRICT JUDGE.
lawsuit arises from Plaintiffs' arrest on June 23, 2014,
following the City of Detroit's annual fireworks display.
In an Amended Complaint filed September 15, 2015, Plaintiffs
assert the following civil rights claims against Defendants
pursuant to 42 U.S.C. § 1983:
(I) Violation of Plaintiffs' First Amendment rights;
(II) Retaliation against Plaintiffs in violation of the First
(III) Deprivation and destruction of Plaintiffs' personal
property in violation of their Fifth and Fourteenth Amendment
(IV) Excessive force and unreasonable seizure of Plaintiffs
in violation of their Fourth Amendment rights;
(V) False arrest of Plaintiff Mekkel Richards (“Mr.
Richards”) in violation of his Fourth Amendment rights;
(VI) Malicious prosecution of Mr. Richards in violation of
his Fourth and Fourteenth Amendment rights;
(VII) Civil conspiracy to violate Plaintiffs' rights; and
(VIII) Municipal liability.
(ECF No. 5.) Plaintiffs also assert the following claims
against Defendants under Michigan law: (IX) assault and
battery; (XI) false imprisonment; (XII) common law and
statutory malicious prosecution under Michigan Compiled Laws
§ 600.2907; and (XIII) intentional infliction of
before the Court is Defendants' October 11, 2016 motion
for partial summary judgment pursuant to Federal Rule of
Civil Procedure 56, in which they seek dismissal of all but
Plaintiffs' excessive force and Plaintiff Adam
Malinowski's destruction of personal property claims
against Defendant Police Officer Robert Gadwell
(“Officer Gadwell”). (ECF No. 39.) Plaintiffs
filed a response to the motion on November 8, 2016. (ECF No.
45.) Defendants filed a reply brief on November 10, 2016.
(ECF No. 47.) With the Court's permission, Plaintiffs
also filed a sur-reply brief, Defendants filed a supplemental
brief to their motion, and Plaintiffs responded to the
supplemental brief. (ECF Nos. 56, 58, 60.) The Court held a
motion hearing on April 25, 2017.
motion hearing, Plaintiffs' counsel indicated that
Plaintiffs are abandoning their conspiracy claim (Count VII)
and intentional infliction of emotional distress claim (Count
XIII). Counsel further stated that Plaintiffs agree to
dismiss Detroit Police Officer Petroff as a defendant. For
the reasons that follow, the Court is granting in part and
denying in part Defendants' motion for partial summary
judgment with respect to Plaintiffs' remaining claims and
the remaining defendants.
Summary Judgment Standard
judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “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 central inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate
time for discovery and upon motion, Rule 56 mandates summary
judgment against a party who fails to establish the existence
of an element essential to that party's case and on which
that party bears the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
movant has the initial burden of showing “the absence
of a genuine issue of material fact.” Id. at
323. Once the movant meets this burden, the “nonmoving
party must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks and citation omitted).
To demonstrate a genuine issue, the nonmoving party must
present sufficient evidence upon which a jury could
reasonably find for that party; a “scintilla of
evidence” is insufficient. See Liberty Lobby,
477 U.S. at 252.
party asserting that a fact cannot be or is genuinely
disputed” must designate specifically the materials in
the record supporting the assertion, “including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1). The court must accept as true the
non-movant's evidence and draw “all justifiable
inferences” in the non-movant's favor. See
Liberty Lobby, 477 U.S. at 255.
evening of June 23, 2014, the City of Detroit conducted its
annual fireworks display over the Detroit River. Mr. Richards
and his friend, Plaintiff Adam Malinowski (“Mr.
Malinowski”), watched the fireworks from a location on
Woodward Avenue between Jefferson Avenue and Campus Martius
Park. When the fireworks display ended, Plaintiffs began
walking north on Woodward Avenue with a crowd of people.
Because of the crowd, Plaintiffs walked the bikes they had
brought with them.
City of Detroit Police Department was in full force the
evening of the fireworks to control the crowd. This included
Defendants: Assistant Police Chief Steve Dolunt
(“Assistant Chief Dolunt”), Sargent Edward
Brannock (“Sargent Brannock”), and Police
Officers Gadwell, Michael Reizin (“Officer
Reizin”), and Stephen Petroff (“Officer
Petroff”). Defendants were tasked with clearing
pedestrians from the closed portions of Woodward Avenue and
encouraging those in attendance at the fireworks display to
return to their cars and go home.
male with long hair, wearing a Viking hat, and swinging what
appeared to be a plastic sword was among the crowd walking
with Plaintiffs northbound on Woodward Avenue. The parties
refer to this individual as “the Viking” and, for
ease of reference, the Court will do so here. During their
depositions in this lawsuit, some of the defendants described
the Viking as intoxicated, belligerent, using vulgarity, and
inciting the crowd by chanting such things as “f--- the
police”, “we're not moving” and
“you can't f---ing stop us.” (Pls.'
Resp., Ex. 3 at 12; Ex. 6 at 20, Ex. 15 at 30-31.) Other
individuals in the crowd were swinging on street signs,
kicking over garbage cans, jumping off flowerpots, and acting
“in a semi disruptive manner”. (Id., Ex.
6 at 15.)
Chief Dolunt approached the Viking's girlfriend and
encouraged her to calm him down, but she was unsuccessful in
doing so. (Id. at 16.) He decided to place the
Viking under arrest as they reached Grand Circus Park. By
that time, Officer Petroff and other police officers had
joined Assistant Chief Dolunt. The officers' attempt to
place the Viking under arrest resulted in a scuffle at the
southern perimeter of the park (at the corner of Woodward
Avenue and Witherell Street), which drew the attention of
individuals within the crowd, including Plaintiffs. According
to Plaintiffs, the officers were smashing the Viking's
face into the ground and the Viking was asking for help and
for someone to videotape the incident. (Id., Ex. 2
at 35, 38.) Several other officers stood a couple of feet
away to create “a shield” and “block the
rest of the crowd” from getting too close.
(Id., Ex. 6 at 25.) Other officers walked northbound
on Woodward Avenue to “push” the crowd in that
direction. Some officers drew pepper spray and light wands
and threatened to pepper spray people if they did not keep
moving. (Id., Ex. 2 at 36-38.) The officers told the
crowd to “go home” and “get out of here.
Keep moving north. You can't be here.”
(Id. at 35.)
passed the police officers' scuffle with the Viking and
initially stopped to observe some fifteen feet away.
(Id. at 35.) Plaintiffs then proceeded north on
Woodward Avenue for about thirty feet, where they locked
their bicycles to a tree in Grand Circus Park. (Id.
at 37.) Concerned about what was happening to the Viking,
they decided to videotape the incident with their cellular
phones. (Id. at 38, 39; Ex. 1 at 24-25.) Plaintiffs
therefore walked on a footpath inside Grand Circus Park back
towards the location of the altercation. (Id., Ex. 2
at 42, 97.) Most of the crowd had dispersed at this point,
although a “few stragglers” were standing by and
observing the incident. (Id., Ex. 6 at 35, 63.)
Malinowski testified during his deposition in this matter
that as he began approaching the scene, officers told him to
back away. (Id., Ex. 1 at 32-33.) Mr. Malinowski
backed away and stopped approximately twenty to twenty five
feet from the scene: “to the point where they stopped
telling [him] to back away.” (Id. at 33-34.)
According to Mr. Malinowski, Mr. Richards was closer to the
scene. (Id. at 34.)
Richards testified that he was on a path leading from
Witherell and Woodward into Grand Circus Park recording the
incident when an officer approached him, put his hand in
front of the camera, and told Mr. Richards to back up and
that he could not be there. (Id., Ex. 2 at 49-50,
97.) Mr. Richards told the officer that he had a right to be
there and record, and he tried to stand his ground, but the
officer walked into him. (Id. at 49-50.) Mr.
Richards began walking backwards, away from the location of
the Viking's arrest, and started to record the scene
again. (Id. at 97-98; Ex. 1 at 34.) According to Mr.
Malinowski, several additional officers confronted Mr.
Richards as he was backing up. (Id., Ex. 1 at 38.)
At this point, Mr. Malinowski began recording Mr.
Richards' confrontation with the officers. (Id.
at 41.) Mr. Malinowski was at the grass or tree line of Grand
Circus Park and Mr. Richards was near the patio chairs,
approximately ten to eighteen feet away from Mr. Malinowski.
(Id. at 35, 43; Ex. 2 at 70.)
Richards continued recording, one of the officers pushed Mr.
Richards, which caused him to trip backwards over a chair and
fall down. (Id., Ex. 2 at 63-64.) Mr. Richards put
his phone in his pocket after he fell. (Id. at 65.)
Plaintiffs testified that after Mr. Richards stood up,
Officer Gadwell approached Mr. Richards and punched him in
the face, knocking Mr. Richards to the ground again.
(Id.; Ex. 1 at 41.)
Richards called to Mr. Malinowski, asking, “did you get
that on video?” (Id., Ex. 2 at 68.) Officer
Gadwell then charged Mr. Malinowski, who put his phone in his
pocket and started to walk away. (Id., Ex. 1 at 44,
45.) Officer Gadwell grabbed Mr. Malinowski from behind and
placed him in a headlock. (Id.) Officer Gadwell then
reached into Mr. Malinowski's pocket, took his phone, and
slammed it against a tree. (Id.) He then pushed or
shoved Mr. Malinowski against the tree, forced him to his
knees, and placed him in handcuffs. (Id. at 44,
48-49.) In the meantime, an unidentified officer handcuffed
Mr. Richards. (Id., Ex. 2 at 68-69.)
then sat Plaintiffs on a curb at the northeast corner of
Woodward and Witherell. Mr. Malinowski's cellular phone
was left behind in the park. According to Plaintiffs,
Assistant Chief Dolunt came over and talked to them, telling
them they were “f---ing idiots, ” “wasting
their time, ” and taking “this right shit too
seriously.” (Id., Ex. 2 at 73.) Plaintiffs had
no interaction with Assistant Chief Dolunt prior to this
point. (Id., Ex. 2 at 76-77.) An unidentified
officer allegedly called Plaintiffs “faggot tree
huggers.” (Id.) The officers then discussed
whether to book Plaintiffs or let them go. (Id., Ex.
1 at 52.) Mr. Richards testified that Assistant Chief Dolunt
instructed the officers to “teach these kids a
lesson” and book them. (Id. at 76-77.) Mr.
Malinowski recalled that another officer in plainclothes said
they needed to teach Plaintiffs a lesson and Assistant Chief
Dolunt “listened to that.” (Id., Ex. 1
officers then took Plaintiffs to a police vehicle for
transport to the Detroit Detention Center. Mr. Malinowski
asked the officer driving the vehicle what they were being
arrested for and he told them “interfering.” The
officers then drove Plaintiffs to the Detroit Detention
Center for processing. At some point after they arrived, Mr.
Malinowski observed one of the Detroit Detention Center
guards holding Mr. Richards' phone and swiping through
it. (Pls.' Resp., Ex. 1 at 58-59; Ex. 2 at 82.)
next day, Plaintiffs were released. When Mr. Richards'
phone was returned to him, the last video he took the
preceding evening had been deleted. (Pls.' Mot., Ex. 2 at
were charged with misdemeanor interference with a police
officer and retained defense counsel (the same attorney
representing them in this civil matter). On August 19, 2014,
Mr. Malinowski entered a guilty plea to the charge.
(Pls.' Resp., Ex. 13.) The trial court sentenced Mr.
Malinowski to a delayed sentence to be dismissed after nine
months of probation. (Id.) Mr. Malinowski
successfully complied with the terms of the delayed sentence
and the disposition was set aside on May 18, 2015.
(Id.) Mr. Richards pleaded not guilty and the trial
court dismissed the charge against him when no Detroit Police
Department officer appeared at his trial on September 29,
2014. (Id., Ex. 12.)
Malinowski eventually recovered his cellular phone. A
“hard re-set” had been done on the phone,
however, which deleted all of the videos he took the evening
of his arrest.
Defendants' Arguments and Analysis
Plaintiffs' State Law Claims
first argue that the Court must dismiss Plaintiffs' state
law claims pursuant to the Michigan Supreme Court's
decision in Jones v. Powell, 612 N.W.2d 423 (2000).
In that case, the Court held that where other avenues of
relief are available, there is no “state law claim for
damages against individuals or municipalities based on
alleged violations of Michigan's constitution.”
Id. at 426. Plaintiffs do not allege violations of