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Johnson v. VanderKooi

Supreme Court of Michigan

July 30, 2018

DENISHIO JOHNSON, Plaintiff-Appellant,
v.
CURTIS VANDERKOOI, ELLIOTT BARGAS, and CITY OF GRAND RAPIDS, Defendants-Appellees. KEYON HARRISON, Plaintiff-Appellant,
v.
CURTIS VANDERKOOI and CITY OF GRAND RAPIDS, Defendants-Appellees.

          Argued on application for leave to appeal April 12, 2018.

          Stephen J. Markman Chief Justice Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Syllabus

         Denishio Johnson filed an action in the Kent Circuit Court against the city of Grand Rapids (the City) and Captain Curtis VanderKooi and Officer Elliott Bargas of the Grand Rapids Police Department (GRPD). Johnson asserted claims under 42 USC 1981 and 42 USC 1983, alleging violations of his constitutional rights. The matter originated in 2011 when the GRPD investigated a complaint that a person, eventually identified as Johnson, was looking into vehicles in a parking lot. After GRPD officers stopped Johnson in the parking lot and were unable to confirm his identity or age, Bargas photographed and fingerprinted Johnson in accordance with the City's photograph and print (P&P) procedure. VanderKooi, who arrived at the scene at some point during this process, approved of Bargas's actions. The GRPD regularly used the P&P procedure for gathering identifying information about individuals during the course of a field interrogation or a stop if an officer deemed it appropriate based on the facts and circumstances of that incident. Johnson was ultimately released and was not charged with a crime. VanderKooi, Bargas, and the City moved separately for summary disposition. The court, George J. Quist, J., granted VanderKooi's and Bargas's motions for summary disposition of Johnson's § 1981 and § 1983 claims and also granted the City's motion for summary disposition, holding, in relevant part, that Johnson had failed to establish that the P&P procedure was unconstitutional on its face or as applied. Johnson appealed, and the Court of Appeals, Boonstra and O'Brien, JJ. (Wilder, P.J., not participating), affirmed. 319 Mich.App. 589 (2017).

         Keyon Harrison brought a separate action in the Kent Circuit Court against VanderKooi and the City. Harrison asserted claims under 42 USC 1981, 42 USC 1983, and 42 USC 1988, alleging violations of his constitutional rights. The matter originated in 2012 after VanderKooi saw Harrison give someone a large model train engine. VanderKooi became suspicious and confronted Harrison after following him to a nearby park. Still suspicious after speaking with Harrison, VanderKooi asked another officer to come to the scene and photograph Harrison. An officer arrived and performed a P&P on Harrison. Harrison, too, was released and was not charged with a crime. VanderKooi and the City moved for summary disposition, which the court, George J. Quist, J., granted, holding, in relevant part, that Harrison had not shown that the P&P procedure was unconstitutional. Harrison appealed, and the Court of Appeals, Boonstra and O'Brien, JJ. (Wilder, P.J., not participating), affirmed in an unpublished per curiam opinion issued May 23, 2017 (Docket No. 330537).

         The reasoning of the Court of Appeals was the same in both cases with regard to municipal liability: the City could not be held liable because neither Johnson nor Harrison had demonstrated that any alleged constitutional violation resulted from a municipal policy or a custom that was so persistent and widespread as to practically have the force of law. The Court of Appeals did not decide whether the P&Ps in these cases violated Johnson's or Harrison's Fourth Amendment right to be free from unreasonable searches and seizures. Johnson and Harrison filed a joint application for leave to appeal in the Supreme Court. The Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 954 (2018).

         In an opinion by Justice Bernstein, joined by Justices McCormack, Viviano, and Clement, the Supreme Court, in lieu of granting leave to appeal, held:

         A policy or custom that authorizes, but does not require, police officers to engage in specific conduct may form the basis for municipal liability, and when an officer engages in the specifically authorized conduct, the policy or custom itself is the moving force behind an alleged constitutional injury arising from the officer's actions. In these cases, the City conceded that there exists a custom of performing a P&P during a field interrogation when an officer deems it appropriate. Whether the GRPD's custom of photographing and fingerprinting individuals as part of field interrogations when there was no probable cause for an arrest had become an official policy of the municipality presented a genuine issue of material fact when the City's admissions, the officers' testimony, the GRPD manual, and other training materials were viewed in the light most favorable to plaintiffs. Additionally, genuine issues of material fact remained concerning causation and whether the policy or custom constituted the moving force behind the alleged constitutional violations. Therefore, the Court of Appeals erred by affirming the trial court's orders granting summary disposition in favor of the City regarding municipal liability. Accordingly, Part III of the Court of Appeals' opinions in both cases was reversed, and the cases were remanded to the Court of Appeals to determine whether the P&Ps at issue violated Johnson's and Harrison's Fourth Amendment right to be free from unreasonable searches and seizures.

         1. Establishing municipal liability under 42 USC 1983 requires proof that (1) a plaintiff's federal constitutional or statutory rights were violated and (2) the violation was caused by a policy or custom of the municipality. A custom may be an accepted, though unwritten, practice of executing governmental policy that is so permanent and well-settled as to have the force of law. An official policy may consist of formal rules or understandings-often but not always committed to writing-that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time. A policy or custom that authorizes municipal employees to perform their duties in a particular manner represents a deliberate decision of the municipality, and an employee's actions in the performance of his or her duties in the manner authorized may be considered acts of the municipality. To survive a municipality's motion for summary disposition of a claim alleging municipal liability, a plaintiff must first identify a policy or custom of the municipality and then point to facts in the record demonstrating that implementation or execution of that policy or custom caused a violation of the plaintiff's federal constitutional or statutory rights. In this case, the City conceded that the P&P procedure was a custom of the City, and record evidence supported a conclusion that the P&P procedure was also an official policy. The P&P procedure was referenced in the GRPD training manual, which stated that P&Ps were mandatory under some circumstances and that a P&P was something to be included in a field interrogation report. P&P procedures were listed under the heading "training considerations" and slides from a training presentation included one slide showing a model field interrogation report with a photograph and a fingerprint card, as well as slides describing hypothetical situations in which an officer performed a P&P on an individual suspected of criminal activity but for which probable cause to arrest did not exist. The existence of an official policy was further supported by the reasonable inference that public resources were used both to develop the training materials and to train officers. Even without the City's concession, the evidence viewed in the light most favorable to Johnson and Harrison was sufficient for reasonable minds to differ regarding the existence of an official policy or custom authorizing the specific conduct that is alleged to be unconstitutional.

         2. A municipality's liability for a municipal employee's conduct requires that the policy or custom under which the employee acted was the "moving force" behind the action that gave rise to the alleged constitutional violation. Simply put, the policy or custom must be the cause of the violation. When the action taken or directed by a municipality violates federal law, then the municipal action is the moving force behind a plaintiff's injury and the requirements of causation are satisfied. A policy or custom that authorizes, but does not require, police officers to engage in specific conduct may form the basis for municipal liability, and when an officer engages in the specifically authorized conduct, the policy or custom itself is the moving force behind an alleged constitutional injury arising from the officer's actions. Traditional tort concepts of causation apply to the analysis of causation in the context of municipal liability. To avoid summary disposition, Johnson and Harrison had to demonstrate that reasonable minds could differ about whether the P&P policy or custom was the moving force behind the alleged Fourth Amendment violations. That is, plaintiffs had to point to facts from which a person could reasonably infer that the municipality's policy or custom was the cause in fact and the proximate cause of the alleged constitutional violation. If a policy or custom authorizes, but does not necessarily require, the use of a specific tactic and a police officer acts in accordance with that authorization, then the policy or custom is the cause in fact and the proximate cause of a constitutional violation arising from the use of that tactic. In this case, the municipality authorized the P&P procedure and police officers exercised their discretion in performing P&Ps. It was reasonably foreseeable that performing a P&P in accordance with the policy or custom in this case would result in a Fourth Amendment violation, assuming that taking a person's fingerprints or picture without probable cause of criminal conduct is unconstitutional. The Court of Appeals erroneously concluded that a municipality cannot be held liable unless its policy or custom specifically directed its employees to violate a person's constitutional rights. A municipality may be liable for authorizing the conduct that violates a person's constitutional rights; the municipality need not specifically direct that its employees engage in that conduct.

         3. It was unnecessary to decide whether a § 1983 plaintiff must prove deliberate indifference when alleging that the execution of a facially lawful policy or custom caused the plaintiff's injury. Rather, it was sufficient to state that a reviewing court must determine whether the plaintiff claims that the alleged injury was caused by a municipal action that itself directed or authorized the violation of a federally protected right or whether the plaintiff claims that a municipality's inaction or omission caused municipal employees to violate the plaintiff's rights. The majority agreed with the concurrence that if the theory of liability is premised on some variant of the latter, then the plaintiff must also show deliberate indifference to prevail. When a theory of liability is based on the absence of governmental action, it makes sense to more critically scrutinize claims of governmental culpability for that absence. But the Supreme Court has never explicitly required such critical scrutiny when the government specifically and affirmatively authorized, but did not require, its employees to engage in allegedly unlawful conduct. In this case, plaintiffs alleged that a municipal action authorized a deprivation of federal rights. Thus, whether plaintiffs specifically claimed that the P&P policy was itself facially unconstitutional was beside the point for the purposes of determining whether the Court of Appeals erred.

         Part III of the Court of Appeals' judgments reversed and cases remanded to the Court of Appeals to determine whether the P&Ps at issue violated Johnson's or Harrison's Fourth Amendment right to be free from unreasonable searches and seizures.

         Justice Wilder, joined by Chief Justice Markman and Justice Zahra, concurred in the result reached by the majority but wrote separately to provide guidance to future § 1983 plaintiffs and defendants about what they must demonstrate in order to prevail in a municipal liability case, as well as to provide the clearest guidance possible to lower courts so that they may fairly adjudicate such claims. Specifically, Justice Wilder agreed with the majority that there was a genuine issue of material fact concerning the existence of a municipal policy or custom and whether that policy or custom caused the alleged constitutional violations. A municipality's liability is limited to actions for which the municipality is actually responsible; municipal liability cannot be premised on a respondeat superior theory. If a § 1983 plaintiff alleges that a municipal policy or custom is facially unlawful, he or she need only show that the policy existed and that its implementation caused the violation of his or her federal rights. But if a § 1983 plaintiff alleges that a municipal policy or custom is facially lawful, he or she must show not only that the policy existed and that its execution caused the violation of the plaintiff's federal rights, but also that the municipality was deliberately indifferent to the unlawful way in which that policy was implemented. In this case, Johnson and Harrison went to some length to argue that the deliberate indifference standard did not apply to the instant situation. Consequently, if that were the case, Johnson and Harrison had to show that the municipality's policy of performing P&Ps without probable cause was unconstitutional on its face. The majority suggested that it was unnecessary to address whether the policy itself was facially unconstitutional because the policy authorized the allegedly unconstitutional conduct and, therefore, the alleged constitutional violation was the result of the municipality's actions rather than a failure to train its employees. However, the distinction drawn by the majority was, respectfully, meaningless. An allegation that an employee unconstitutionally applied a facially constitutional policy is the logical equivalent of an allegation that the municipality failed to adequately train its employees in how to constitutionally apply that policy. In either case, the municipality is being held liable because of its failure to ensure that its policy is applied constitutionally. Justice Wilder would have specifically directed the Court of Appeals on remand to decide whether the policy or custom at issue was facially unconstitutional.

         BEFORE THE ENTIRE BENCH

          OPINION

          BERNSTEIN, J.

         These consolidated cases arise from two separate incidents where plaintiffs were individually stopped and questioned by Grand Rapids Police Department (GRPD) officers. During these stops, plaintiffs' photographs and fingerprints were taken in accordance with the GRPD's "photograph and print" (P&P) procedures. Alleging that the P&Ps violated their constitutional rights, plaintiffs filed separate civil lawsuits in the Kent Circuit Court against the city of Grand Rapids (the City), as well as against the individual police officers involved. The trial court granted summary disposition in favor of all defendants in both cases. Plaintiffs each appealed by right, and the Court of Appeals affirmed in separate opinions.[1] Relevant to this appeal, both opinions affirmed summary disposition for the City on plaintiffs' municipal-liability claims on the basis that a policy that does not direct or require police officers to take a specific action cannot give rise to municipal liability under 42 USC 1983.

         We disagree with the Court of Appeals and hold that a policy or custom that authorizes, but does not require, police officers to engage in specific conduct may form the basis for municipal liability. Additionally, when an officer engages in the specifically authorized conduct, the policy or custom itself is the moving force behind an alleged constitutional injury arising from the officer's actions. Accordingly, we reverse in part the judgments of the Court of Appeals, and we remand these cases to the Court of Appeals for further consideration.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         The P&Ps giving rise to these lawsuits took place during two separate incidents. At the time of the incidents, each GRPD patrol officer was assigned as a part of their standard equipment a camera, a fingerprinting kit, and GRPD "print cards" for storing an individual's copied fingerprints. Generally speaking, a P&P involved an officer's use of this equipment to take a person's photograph and fingerprints whenever an officer deemed the P&P necessary given the facts and circumstances. After a P&P was completed, the photographs were uploaded to a digital log. Completed print cards were collected and submitted to the Latent Print Unit. Latent print examiners then checked all the submitted fingerprints against the Kent County Correctional Facility database and the Automated Fingerprint Identification System. After being processed, the cards were filed and stored in a box according to their respective year.

         The first incident giving rise to these lawsuits involved the field interrogation of plaintiff Denishio Johnson. On August 15, 2011, the GRPD received a tip that a young black male, later identified as Johnson, had been observed walking through an athletic club's parking lot and peering into vehicles. Officer Elliott Bargas responded to the tip and initiated contact with Johnson. Johnson, who had no identification, told Bargas that he was 15 years old, that he lived nearby, and that he used the parking lot as a shortcut. Bargas was skeptical of Johnson's story, and being aware of several prior thefts in and near the parking lot, he decided to perform a P&P to see if any witnesses or evidence would tie Johnson to those crimes. After Johnson's mother arrived and verified his name and age, Johnson was released. At some point during this process, Captain Curtis VanderKooi arrived and approved Bargas's actions. Johnson was never charged with a crime.

         The second event occurred on May 31, 2012, after VanderKooi observed Keyon Harrison, a young black male, walk up to another boy and hand him what VanderKooi believed was a large model train engine. Suspicious of the hand-off, VanderKooi followed Harrison to a park. After initiating contact, VanderKooi identified himself and questioned Harrison. Harrison, who had no identification, told VanderKooi that he had been returning the train engine, which he had used for a school project. VanderKooi, still suspicious, radioed in a request for another officer to come take Harrison's photograph. Sergeant Stephen LaBrecque arrived a short time later and performed a P&P on Harrison, despite being asked to take only a photograph. Harrison was released after his story was confirmed, and he was never charged with a crime.

         Johnson and Harrison subsequently filed separate lawsuits in the Kent Circuit Court, and the cases were assigned to the same judge. Plaintiffs argued, in part, that the officers and the City were liable pursuant to 42 USC 1983 for violating plaintiffs' Fourth and Fifth Amendment rights when the officers performed P&Ps without probable cause, lawful authority, or lawful consent. Both plaintiffs also initially claimed that race was a factor in the officers' decisions to perform P&Ps, though Johnson later dropped that claim.

         In two separate opinions, the trial court granted summary disposition in favor of the City pursuant to MCR 2.116(C)(10)[2] and in favor of the officers pursuant to MCR 2.116(C)(7), (10), and (I)(2). Plaintiffs individually appealed by right in the Court of Appeals. In two separate opinions relying on the same legal analysis, the Court of Appeals affirmed the trial court's judgments regarding plaintiffs' municipal-liability claims.[3] Specifically, the Court of Appeals held that the City could not be held liable because plaintiffs did not demonstrate that any of the alleged constitutional violations resulted from a municipal policy or a custom so persistent and widespread as to practically have the force of law. Johnson, 319 Mich.App. at 626-628. The Court of Appeals did not decide whether the P&Ps actually violated either plaintiff's Fourth Amendment rights.

         Plaintiffs filed a joint application for leave to appeal in this Court, challenging the Court of Appeals' ruling on the City's liability under 42 USC 1983. They argued that the record demonstrated that the City had a policy or custom of performing P&Ps without probable cause during investigatory stops pursuant to Terry v Ohio, 392 U.S. 1, 22; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968), [4] which may be based on reasonable suspicion of criminal conduct, and that execution of that policy or custom violated their Fourth Amendment rights. We scheduled oral argument on the application and instructed the parties to address "whether any alleged violation of the plaintiffs' constitutional rights [was] the result of a policy or custom instituted or executed by the defendant City of Grand Rapids." Johnson v VanderKooi, 501 Mich. 954, 954-955 (2018).

         II. STANDARD OF REVIEW

         This Court reviews de novo a trial court's decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). A motion brought pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 120. When reviewing such a motion, "a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties . . . in the light most favorable to the party opposing the motion." Id. A genuine issue of material fact exists when the record "leave[s] open an issue upon which reasonable minds might differ." Shallal v Catholic Social Servs of Wayne Co, 455 Mich. 604, 609; 566 N.W.2d 571 (1997) (quotation marks and citations omitted).

         III. ANALYSIS

         The issue presented is whether there exists a genuine issue of material fact as to whether the alleged violations of plaintiffs' Fourth Amendment rights were caused by a policy or custom of the City. Plaintiffs' cause of action arises from 42 USC 1983, which provides in pertinent part:

Every person who, 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 and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

         It is undisputed that a local municipality constitutes a "person" to which 42 USC 1983 applies. Monell v Dep't of Social Servs of the City of New York, 436 U.S. 658, 690-691; 98 S.Ct. 2018; 56 L.Ed.2d 611 (1978). Establishing municipal liability under 42 USC 1983 requires proof that: (1) a plaintiff's federal constitutional or statutory rights were violated and (2) the violation was caused by a policy or custom of the municipality. Id. For the purposes of this appeal, we assume that plaintiffs' Fourth Amendment rights were violated by the P&Ps performed by the GRPD officers and focus solely on the second prong of the analysis. Collins v Harker Hts, Texas, 503 U.S. 115, 121-122; 112 S.Ct. 1061; 117 L.Ed.2d 261 (1992) (holding that whether a legal violation occurred and whether a municipality might be liable for that violation are separate legal inquiries).

         A constitutional violation is attributable to a municipality if "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690. Liability may also be based on a "governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels," id. at 691, if the "relevant practice is so widespread as to have the force of law," Bd of the Co Comm'rs of Bryan Co, Oklahoma v Brown, 520 U.S. 397, 404; 117 S.Ct. 1382; 137 L.Ed.2d 626 (1997).[5] However, liability may not be based on a respondeat superior theory. Id. at 403; Jackson v Detroit, 449 Mich. 420, 433; 537 N.W.2d 151 (1995). If the claim is premised on a municipal action that is itself alleged to be unlawful, such as the adoption of the policy at issue in Monell, no independent assessment of municipal culpability is necessary. Brown, 520 U.S. at 404-405. If, however, a plaintiff does not claim "that the municipal action itself violated federal law, or directed or authorized the deprivation of federal rights," then it must be shown that the municipality acted with deliberate indifference to the obvious risk that the failure to take a different course of action would cause the specific kind of injury alleged. Id. at 406; City of Canton, Ohio v Harris, 489 U.S. 378, 388; 109 S.Ct. 1197; 103 L.Ed.2d 412 (1989). Under either theory of liability, a plaintiff must also establish "an affirmative link between the policy or custom and the particular constitutional violation alleged." Jackson, 449 Mich. at 433. Stated differently, the policy or custom must be the "moving force" behind the alleged constitutional violation. Id., citing Monell, 436 U.S. at 694.

         Accordingly, to survive summary disposition, a plaintiff must first identify and connect a policy or custom to the municipality, and then point to facts in the record demonstrating that implementation or execution of that policy or custom caused the alleged constitutional violation.

          A. MUNICIPAL POLICY OR CUSTOM

         The first question is whether there existed a policy or custom that was attributable to the City. While the policy in Monell was memorialized in writing, this is not a prerequisite for a finding of municipal liability. An" 'official policy' often refers to formal rules or understandings-often but not always committed to writing-that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Pembaur v Cincinnati, 475 U.S. 469, 480-481; 106 S.Ct. 1292; 89 L.Ed.2d 452 (1986) (emphasis added). Governmental customs may also give rise to liability. A "permanent and well settled" practice of governmental officials or employees may "constitute a 'custom or usage' with the force of law." Monell, 436 U.S. at 691, quoting Adickes v S H Kress & Co, 398 ...


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