Circuit Court LC No. 14-007226-NO.
Before: Wilder, P.J., and Boonstra and O'Brien, JJ.
case arises out of a police contact between plaintiff and
City of Grand Rapids Police Department (GRPD) officers, and
the application of what is described as GRPD's
"photograph and print" (P&P) policy. The trial
court granted summary disposition in favor of defendants
under MCR 2.116(C)(7) and (10). Plaintiff appeals by right.
We conclude that the trial court correctly held that
defendants VanderKooi and Bargas were shielded by qualified
immunity and were therefore entitled to summary disposition
under MCR 2.116(C)(7), and that defendant City of Grand
Rapids was entitled to summary disposition under MCR
2.116(C)(10) regarding plaintiff's claim for municipal
liability under 42 USC § 1983. We therefore affirm.
PERTINENT FACTS AND PROCEDURAL HISTORY
August 15, 2011, the GRPD received a telephone complaint that
an individual eventually identified as plaintiff was walking
through the Michigan Athletic Club's (MAC) parking lot in
Grand Rapids and was looking into several vehicles as if
intending to steal something from the vehicles. Officers Greg
Edgcombe and Eugene Laudenslager responded and located
plaintiff sitting under a shade tree. Plaintiff told Edgcombe
that he had merely walked through the parking lot on his way
to where he was sitting, to meet a friend who was taking the
bus. Plaintiff did not have identification with him.
According to the police report completed by Edgcombe,
numerous items had been stolen from vehicles in the MAC
parking lot during the preceding months. The police report
stated that some of the reports from the previous incidents
contained "descriptions of [a] young black male suspect
who left the area over the south parking lot grassy knoll
which is directly in the path of where plaintiff lives on
Burning Tree Drive." Edgcombe "file checked"
his computer system for the name that plaintiff had given him
(Denishio Johnson) and did not discover any warrants or
previous arrests. Laudenslager spoke with a witness who
identified plaintiff as the person who was looking into
vehicles but who stated that plaintiff did not try to open or
enter any of the vehicles.
Elliot Bargas of the GRPD arrived on the scene after
Laudenslager and Edgcombe had made contact and spoken with
plaintiff. According to Bargas, Edgcombe was in the process
of trying to identify who plaintiff was and reported that
plaintiff had told him that he was 15 years old and lived on
Burning Tree Drive just south of the MAC parking lot. Bargas
testified that plaintiff admitted to walking through the
parking lot but denied looking into cars. Bargas further
testified that plaintiff looked older than 15 years of age
and had tattoos. Sergeant Bargas photographed plaintiff in
case there were witnesses from the previous thefts who could
identify a suspect. Sergeant Bargas also fingerprinted
plaintiff because the GRPD had tried to obtain latent prints
in the previous incidents. Bargas explained that at the time
he performed the P&P on plaintiff, he and Edgcombe still
were not sure about plaintiff's actual identity and were
trying to verify it. Bargas testified that he asked plaintiff
if there was someone he could call to come to the scene and
confirm his identity. Sometime after the P&P,
plaintiff's mother and another family member arrived.
Bargas explained why plaintiff had been stopped (i.e., that
two independent witnesses had described her son as looking
into vehicles in the parking lot), and that plaintiff's
mother verified his identity and indicated that she would
make sure that plaintiff took a different route to avoid any
future problems. Plaintiff left with his family.
meantime, Captain Curtis VanderKooi of the GRPD heard the
radio traffic regarding the incident in the MAC parking lot,
and went to the scene. VanderKooi testified that he believed
he showed up after plaintiff had left and as things were
wrapping up at the scene.VanderKooi further testified that Bargas
and Edgcombe explained what had occurred, that he approved of
Bargas's actions, and that he then drove away. On the
following day, VanderKooi requested that plaintiff's
fingerprints be compared with any latent prints found at the
scene of the other larcenies from vehicles in the area.
According to VanderKooi, either there was no match between
the prints or the quality of the prints was inadequate to
make a comparison. VanderKooi took no further action related
to this incident.
testified that he was handcuffed for the P&P procedure
and was placed in the back of a police car for 5 to 10
minutes while waiting for his mother to arrive. Plaintiff
denied looking into cars, but stated at his deposition that
he usually looked at his reflection in car windows as he
passed them. Plaintiff denied touching any vehicle. After the
officers spoke with plaintiff's mother, they let
plaintiff out of the police car and removed his handcuffs.
Plaintiff testified that the police did not ask for his
consent for the P&P or any search.
August 7, 2014, plaintiff filed a complaint against Bargas,
VanderKooi, and the City of Grand Rapids (the city), alleging
violations of 42 USC 1981, 42 USC 1983, and 42 USC 1988.
Plaintiff alleged that, without probable cause or legal
authority, Bargas took fingerprints and photographs of
plaintiff, who was African American. Plaintiff further
alleged that the photographs were stored in the GRPD's
files and that VanderKooi directed Bargas to take the
fingerprints and photographs and to store them. Plaintiff
also alleged that Bargas and VanderKooi took these actions
against plaintiff because he was African American. In Count
I, the complaint raised a claim against Bargas and VanderKooi
under 42 USC 1981 and 42 USC 1983, and asserted that they had
violated the Equal Protection Clause of the Fourteenth
Amendment, U.S. Const, Am XIV,  plaintiff's right to be free
from unlawful searches and seizures under the Fourth
Amendment, U.S. Const, Am IV, his rights under the Fifth
Amendment, U.S. Const, Am V, barring the taking of private
property without just compensation, and his constitutional
right to privacy.
Count II, plaintiff raised a municipal liability claim
against the city under 42 USC 1988. According to the
complaint, an analysis of police reports from March 2008 to
March 2013 was conducted. The complaint alleged that, in the
reports that contained VanderKooi's name and the phrase
"P&P" or a similar reference to photograph and
print, there were 11 people, including plaintiff, who were
innocent of any wrongdoing but who had still had their
photographs and prints taken, and an additional person who
had only had a photograph taken. The complaint asserted that
75% of those individuals were African American, but the
city's population was only 20% African American. The
complaint alleged that plaintiff's photograph and prints
were taken as part of the city's policy, which was
enforced in a discriminatory manner.
September 3, 2014, defendants filed their answer to the
complaint and affirmative defenses. The following affirmative
defenses were raised: (1) plaintiff failed to state a claim
upon which relief could be granted; (2) the initial contact
was a consensual police-citizen encounter; (3) reasonable
suspicion supported the initial stop and the actions that
followed; (4) the initial stop was reasonable; (5) the
actions were not discriminatory or based on race; (6) Bargas
and VanderKooi were entitled to qualified immunity; (7)
plaintiff consented to some or all of defendants'
actions; and (8) any claimed damages were caused, in whole or
in part, by plaintiff's own actions.
September 11, 2015, the city and the individual defendants
filed separate motions for summary disposition. Bargas and
VanderKooi argued that they were entitled to summary
disposition under MCR 2.116(C)(7) because they were entitled
to qualified immunity given that the law was not clearly
established regarding taking fingerprints and photographs
during investigatory stops. VanderKooi additionally argued
that he was entitled to summary disposition under MCR
2.116(C)(10) because he did not have an active role in the
stop. Moreover, Bargas and VanderKooi argued that they were
entitled to summary disposition under MCR 2.116(C)(10)
because there was no such thing as a constitutional right to
privacy, plaintiff could not establish a takings claim, and
plaintiff could not establish that he was discriminated
against based on race.
city argued that it was entitled to summary disposition under
MCR 2.116(C)(10) because a city employee did not deny
plaintiff a constitutional right, the city's P&P
practice did not violate the Fourth Amendment, plaintiff
could not establish that the city acted with deliberate
indifference to the federal civil rights violations, and
plaintiff could not establish a pattern, notice, or tacit
approval of illegal conduct on the part of the city.
response, plaintiff stated that he was abandoning his equal
protection and § 1981 claims but denied that summary
disposition was appropriate with respect to his remaining
planned to have an expert witness, Dr. William Terrill,
testify at trial. Dr. Terrill is a professor of criminal
justice at Michigan State University. Dr. Terrill provided an
affidavit in which he opined that Bargas's actions in
performing the P&P procedure in this case were
unreasonable. Defendants filed a joint motion to strike Dr.
Terrill's proposed testimony. Defendants argued that Dr.
Terrill's proposed testimony could be broken down into
two categories: numerical opinions on racial profiling and
opinions on whether Bargas's actions were reasonable.
With respect to the numerical opinions on racial profiling,
defendants argued that the opinion was inadmissible and
unnecessary to the extent that it involved the ordinary use
of computations that any layperson could perform. They
further argued that Dr. Terrill was unqualified to testify
about racial profiling. Moreover, defendants argued that Dr.
Terrill's analysis was unreliable because it used
unadjusted census data as a statistical benchmark-an approach
rejected by many courts; that the analysis was unreliable
because nothing was used as a control; that the analysis was
unreliable because his "preliminary opinions"
regarding this case were not developed using the same
intellectual rigor as his academic work; and that the
analysis involved inadmissible hearsay and was unnecessary
for the jury to interpret the facts. Finally, defendants
argued that Dr. Terrill's opinion contradicted the
October 30, 2015, the trial court held a hearing on the
motions for summary disposition and the motion to strike.
Defendants argued that there was no generalized
constitutional right to privacy; that a right to privacy must
be tied to a specific amendment; and that, in this case, the
applicable amendment is the Fourth Amendment. Thus,
defendants maintained that there could not be a separate
claim under a general right to privacy and that the proper
analysis is under the Fourth Amendment. Plaintiff did not
dispute that analysis and agreed that his right to privacy
should be evaluated in the context of the Fourth Amendment.
Defendants further argued that people did not have a
reasonable expectation of privacy in their fingerprints or in
photographs of themselves as they appeared in public.
Plaintiff responded that either a search warrant or probable
cause in the field was needed to gather the evidence and that
"none of the bases that the Fourth Amendment
requires" were present to allow the gathering of
photographs and fingerprints in this case.
respect to the Fifth Amendment, defendants argued that there
are no property rights implicated in a person's
photograph or fingerprints, that the photograph and
fingerprints in this case were not published, and that the
underlying incident was an application of police powers
rather than a taking under the city's eminent domain
power. Plaintiff argued that the incident involved a taking
of intangible property without just compensation, although he
conceded that there were certain instances when police could
take someone's photograph and fingerprints as an
appropriate exercise of police powers. Plaintiff also
conceded that he could not find caselaw indicating that the
taking of a fingerprint or photograph by police constituted a
taking under the Fifth Amendment, but he maintained that it
was an issue of first impression.
the hearing, the trial court issued two separate written
opinions and orders regarding the motion to strike Dr.
Terrill and the motions for summary disposition. With respect
to the motion to strike, the trial court acknowledged Dr.
Terrill's substantial training and education in the
general field of criminal justice but questioned whether he
was qualified to give an expert opinion in the instant case.
The trial court held that, even assuming that Dr. Terrill was
qualified in the area of police conduct similar to the
instant case, plaintiff had failed to establish that Dr.
Terrill's opinion would assist the trier of fact or that
his opinions were based on a recognized form of specialized
knowledge. The trial court therefore concluded that plaintiff
had failed to satisfy the requirements of MRE 702. In
addition, the trial court held that the testimony sought to
be introduced did not pass muster under MRE 403 because the
information-whether based on Dr. Terrill's statistical
analysis or on non-statistical opinion-was unnecessary to
assist the jury; plaintiff abandoned the equal protection
claims based on race; and the statistical information would
only confuse the issues presented to the jury. Accordingly,
the trial court granted the motion to strike.
respect to Bargas and VanderKooi's motion for summary
disposition, the trial court noted that the complaint was
limited to the P&P procedure and that plaintiff "did
not challenge the propriety of the initial stop, search of
his person, or detention." The trial court held that
plaintiff "was in public and had no reasonable
expectation of privacy in his various physical features which
were readily observable by the public" and that the
P&P did not violate the Fourth Amendment. In the
alternative, the trial court noted that the Fourth Amendment
only prohibited unreasonable searches and seizure, and it
held that, even assuming that the P&P constituted a
search and seizure, Bargas's actions were reasonable
given the circumstances. Further, the trial court held that
plaintiff did not establish that VanderKooi directed
Bargas's actions. The trial court also rejected
plaintiff's argument that he had a constitutional right
to privacy in his fingerprints and facial features. The trial
court therefore held that summary disposition was appropriate
under MCR 2.116(C)(10) with respect to plaintiff's Fourth
Amendment and constitutional right to privacy claim.
the Fifth Amendment claim, the trial court rejected
plaintiff's argument and held that his facial features
and fingerprints were "observable by the general public
and not protected under the common law right to
privacy." It therefore held that summary disposition was
appropriate under MCR 2.116(C)(10). The trial court also held
that plaintiff had abandoned his equal protection claim under
42 USC 1981. Consequently, it held that summary disposition
was appropriate under MCR 2.116(C)(10).
addition, the trial court held that qualified immunity
applied to all of plaintiff's claims against Bargas and
VanderKooi. Therefore, the trial court concluded,
"Because Plaintiff failed to establish a genuine issue
of material fact regarding his 1983 claims, and abandoned his
1981 claim, and because Bargas and VanderKooi are otherwise
shielded by qualified immunity, summary disposition is
appropriate pursuant to MCR 2.116(C)(7) and
respect to the city's motion for summary disposition, the
trial court held that plaintiff had failed to establish a
violation of his constitutional rights and had not
established that the policy was unconstitutional on its face
or as applied; therefore, summary disposition was appropriate
under MCR 2.116(C)(10).
trial court accordingly dismissed plaintiff's claims with
prejudice. This appeal followed.
argues that the trial court erred by granting summary
disposition in favor of Bargas and VanderKooi on his Fourth
and Fifth Amendment claims. Because we find that Bargas and
VanderKooi were shielded by the doctrine of qualified
immunity, we disagree.
STANDARD OF REVIEW
motion for summary disposition under MCR 2.116(C)(7) asserts
that a claim is barred by immunity granted by law" and
"may be supported or opposed by affidavits, depositions,
admissions, or other documentary evidence; the substance or
content of the supporting proofs must be admissible in
evidence." By Lo Oil Co v Dep't of
Treasury, 267 Mich.App. 19, 26; 703 N.W.2d 822 (2005).
"A trial court properly grants a motion for summary
disposition under MCR 2.116(C)(7) when the undisputed facts
establish that the moving party is entitled to immunity
granted by law." Id. We review de novo a trial
court's grant of summary disposition pursuant to MCR
2.116(C)(7). Fisher Sand & Gravel Co v Neal A Sweebe,
Inc, 494 Mich. 543, 553; 837 N.W.2d 244 (2013). Further,
we review de novo the question of whether a federal
constitutional right was clearly established at the time of
the alleged violation so as to preclude the protection of
qualified immunity. See Elder v Holloway, 510 U.S.
510, 516; 114 S.Ct. 1019, 1023; 127 L.Ed.2d 344 (1994);
Morden v Grand Traverse Co, 275 Mich.App. 325, 340;
738 N.W.2d 278 (2007).
QUALIFIED IMMUNITY GENERALLY
immunity is an established federal defense against claims for
damages under § 1983 for alleged violations of federal
rights." Id. A person is liable under 42 USC
1983 if he or she, "under color of any statute,
ordinance, regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution . . . ." 42 USC 1983.
"Section 1983 itself is not the source of substantive
rights; it merely provides a remedy for the violation of
rights guaranteed by the federal constitution or federal
statutes." York, 438 Mich. at 757-758. "A
cause of action under § 1983 is stated where a plaintiff
shows (1) that the plaintiff was deprived of a federal right,
and (2) that the defendant deprived the plaintiff of that
right while acting under color of state law."
Davis, 201 Mich.App. at 576-577. However, "[a]
police officer may invoke the defense of qualified immunity
to avoid the burden of standing trial when faced with a claim
that the officer violated a person's constitutional
rights." Lavigne v Forshee, 307 Mich.App. 530,
542; 861 N.W.2d 635 (2014).
doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Id. at 542 (quotation marks and
citations omitted). Thus, qualified immunity does not apply
if a right was "clearly established" at the time of
the violation, such that it "would be clear to a
reasonable officer" that his or her conduct was
unlawful. Id. (citations omitted).
immunity can apply "even if there were a genuine issue
of material fact regarding the underlying [constitutional]
claim." Morden, 275 Mich.App. at 340, 342. See
also Messerschmidt v Millender, 565 U.S. 535, 546;
132 S.Ct. 1235, 1244; 182 L.Ed.2d 47 (2012) ("Qualified
immunity gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the
law.") (quotation marks and citation omitted). In order
for a right to be clearly established, there must be
"binding precedent . . . that is directly on
point." Morden, 275 Mich.App. at 340 (quotation
marks and citation omitted; alteration in Morden).
Saucier v Katz, 533 U.S. 194, 201; 121 S.Ct. 2151;
150 L.Ed.2d 272 (2001), the United States Supreme Court
articulated the initial inquiry for determining whether
qualified immunity applies: "Taken in the light most
favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a
constitutional right?" If there was no violation of a
constitutional right, no further inquiry regarding qualified
immunity is required. Id. However, "if a
violation could be made out on a favorable view of the
parties' submissions, the next, sequential step is to ask
whether the right was clearly established." Id.
"[T]he right the official is alleged to have violated
must have been 'clearly established' in a more
particularized, and hence more relevant, sense: The contours
of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.' " Id. at 202, quoting Anderson
v Creighton, 483 U.S. 635, 640; 107 S.Ct. 3034; 97
L.Ed.2d 523 (1987). In other words, the "dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted."
Id.; see also Anderson, 483 U.S. at 640
("This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must
be apparent.") (citation omitted).
Pearson v Callahan, 555 U.S. 223, 231-232; 129 S.Ct.
808; 172 L.Ed.2d 565 (2009), the Court clarified that courts
may exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the
particular case at hand." Id. at 236. See also
Jones v Byrnes, 585 F.3d 971, 975 (CA 6, 2009)
(explaining that "Pearson left in place
[Saucier's] core analysis" and that it
"need not decide whether a constitutional violation has
occurred if we find that the officer's actions were
case, the circumstances lead us to conclude that the second
prong of the Saucier analysis is dispositive of
whether Bargas and VanderKooi are entitled to qualitative
immunity. We therefore decline to address whether, taken in
the light most favorable to plaintiff, the P&P procedure
violated plaintiff's Fourth and Fifth Amendment rights.
Rather, for the reasons stated below, we hold that at the
time of the alleged violation, the right asserted by
plaintiff was not clearly established. Saucier, 533
U.S. at 201.
FOURTH AMENDMENT RIGHTS
Fourth Amendment to the United States Constitution protects
against unreasonable searches and seizures. People v
Slaughter, 489 Mich. 302, 310-311; 803 N.W.2d 171
(2011). See also Maryland v King, __ US, __; __133
S.Ct. 1958, 1968; 186 L.Ed.2d 1 (2013), quoting U.S. Const,
Am IV ("The Fourth Amendment, binding on the States by
the Fourteenth Amendment, provides that '[t]he right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated.' "). There is a dual inquiry for
determining whether a search or a seizure is unreasonable:
"whether the officer's action was justified at its
inception, and whether it was reasonably related in scope to
the circumstances which justified the interference in the
first place." Terry v Ohio, 392 U.S. 1, 20; 88
S.Ct. 1868, 1879; 20 L.Ed.2d 889 (1968).
person is liable under 42 USC 1983 if he or she, "under
color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
. . . ." 42 USC 1983. "Section 1983 itself is not
the source of substantive rights; it merely provides a remedy
for the violation of rights guaranteed by the federal
constitution or federal statutes." York v Detroit
(After Remand), 438 Mich. 744, 757-758; 475 N.W.2d 346
(1991). "A cause of action under § 1983 is stated
where a plaintiff shows (1) that the plaintiff was deprived
of a federal right, and (2) that the defendant deprived the
plaintiff of that right while acting under color of state
law." Davis v Wayne Co Sheriff, 201 Mich.App.
572, 576-577; 507 N.W.2d 751 (1993). It is undisputed that
the officers were acting under the color of state law when
the alleged Fourth Amendment violation of plaintiff's
NATURE OF PLAINTIFF'S CLAIMS
factual allegations of plaintiff's complaint relate
solely to the taking of plaintiff's photograph and
fingerprints. Plaintiff did not challenge his initial stop,
the length of his detainment, or the fact that he was
handcuffed or placed in a police car, as being unreasonable
and violative of his Fourth Amendment rights. Rather, he
alleged only that the P&P procedure was an unlawful
search and seizure. This Court must limit its review to the
allegations contained in the complaint. See Sutter v
Ocwen L Servicing, LLC, 499 Mich. 874; 876 N.W.2d 244
(2016), see also Steed v Covey, 355 Mich. 504, 511;
94 N.W.2d 864 (1959), quoting 41 Am Jur, Pleading, § 77,
pp 343-345 (explaining the general principles that
"[e]very material fact essential to the existence of the
plaintiff's cause of action, and which he must prove to
sustain his right of recovery, must be averred, in order to
let in proof thereof" and that "[e]very issue must
be founded upon some certain point, so that the parties may
come prepared with their evidence and not be taken by
surprise, and the jury may not be misled by the introduction
of various matters").
trial court did not abuse its discretion by limiting
plaintiff's claims to those that plaintiff actually pled.
The entirety of plaintiff's Count I (against Bargas and
VanderKooi) reads as follows:
9. On August 25, 2011, Plaintiff Johnson was sitting on the
grass approximately 150 south of Burton Street near the
intersection of Breton Avenue _in the City of Grand Rapids.
10. Plaintiff Johnson is an African-American.
11. Officer Greg Edgcombe contacted Plaintiff Johnson
following a call from personnel at the' Michigan Athletic
12. Despite being told that [plaintiff] had not tried to open
or enter any of the vehicles in the MAC parking lot (unlike
the initial information), Sgt. Elliott Bargas took a full set
of fingerprints and two photos of [plaintiff], without