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Johnson v. VanderKooi

Court of Appeals of Michigan

May 23, 2017

DENISHIO JOHNSON, Plaintiff-Appellant,
v.
CURT VANDERKOOI, ELLIOT BARGAS, and CITY OF GRAND RAPIDS, Defendants-Appellees. and THE AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Amicus Curiae,

         Kent Circuit Court LC No. 14-007226-NO.

          Before: Wilder, P.J., and Boonstra and O'Brien, JJ.

          Boonstra, J.

         This 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.

         I. PERTINENT FACTS AND PROCEDURAL HISTORY

         On 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.[1]

         Sergeant 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.

         In the 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.[2]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.

         Plaintiff 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.

         On 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, [3] 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.

         In 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.

         On 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.

         On 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.

         The 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.

         In 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 claims.

         Plaintiff 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 admissible evidence.

         On 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.

         With 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.

         Following 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.

         With 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.

         Regarding 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).

         In 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 2.116(C)(10)."

         With 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).

         The trial court accordingly dismissed plaintiff's claims with prejudice. This appeal followed.

         II. INDIVIDUAL DEFENDANTS

         Plaintiff 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.

         A. STANDARD OF REVIEW

         "A 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).

         B. QUALIFIED IMMUNITY GENERALLY

         "Qualified 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).

         "The 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).

         Qualified 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).

         In 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).

         In 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 nevertheless reasonable").

         In this 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.

         C. FOURTH AMENDMENT RIGHTS

         The 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).

         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 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 rights occurred.

         1. NATURE OF PLAINTIFF'S CLAIMS

         The 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").

         The 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 Club ("MAC").
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 probable ...

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