United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION TO DISMISS
L. LUDINGTON United States District Judge
October 12, 2018, Plaintiff Trent Douglas Sherman filed a
complaint against the Michigan Department of Natural
Resources (“DNR”) and eight DNR employees in
their individual and official capacities. ECF No. 1.
Plaintiff claims that Defendants unlawfully arrested him and
maliciously prosecuted him.
eight DNR employees are as follows. Defendant Keith Creagh
was the Director of the DNR and Defendant Dean Molnar was the
Assistant Chief. ECF No. 1 at 4-5. Defendants Gary Hagles and
Daniel Hopkins worked within the DNR Law Enforcement
Division. Hagles was the Chief and Hopkins was a Captain.
Id. The final four Defendants were all members of
District 3 of the DNR Law Enforcement Division. Defendant Jim
Gorno was a Lieutenant, Defendant Joe Molnar was a Sergeant,
Defendant William Webster was a Field Training Officer, and
Defendant Christopher Lynch was a Probationary Conservation
Officer. Id. at 5-6.
January 18, 2019, Defendants filed a motion to dismiss. For
the following reasons, the motion will be granted.
to Plaintiff's complaint, on October 17, 2015 at
approximately 11:35 p.m., DNR Pilot Bill Green reported that
there was a vehicle shining on the Fleco Camp. ECF No. 1 at
6. The shining was reported to have occurred between 11:15
and 11:20 p.m. The owners of the Fleco Camp had previously
given Defendant Webster a key to the property
gate. They had asked him to monitor the property
because there had been previous incidents of trespassers on
the property that were suspected of poaching. Id.
Lynch and Webster arrived at the property at approximately
11:35 p.m. where they encountered Plaintiff and another
individual. Id. at 7. Lynch and Webster asked
the individuals for identification and fur harvester
licenses. Id. Lynch noted that Plaintiff's
speech was slurred. Lynch accompanied Plaintiff to
Plaintiff's vehicle and once there, asked Plaintiff
whether he had any firearms in the vehicle. Plaintiff
acknowledged that there were firearms in the vehicle and
granted Lynch permission to search the vehicle. Id.
found a Ruger pistol case on the floor between the front and
back seats where either the driver or passenger could access
it. Id. Lynch subsequently confiscated the gun,
ammunition, and case and asked Plaintiff to perform a series
of Field Sobriety Tests, which Plaintiff performed. Lynch
also asked him to perform a Prelminary Breath Test
(“PBT”), but Plaintiff refused, requesting that
he be permitted to contact an attorney. Plaintiff again
refused to perform the PBT at which point Lynch arrested
Plaintiff, placing him in handcuffs. Id. at 8.
Plaintiff was arrested for shining with a weapon in
possession, being visibly impaired while possessing a weapon,
operating a vehicle while under the influence, and possessing
a loaded firearm in a vehicle. Id.
cited Plaintiff for refusal of a PBT, shining with a weapon
in possession, possession of a firearm .08 BAC, and operating
while intoxicated. Id. Plaintiff was taken to jail
where he again stated that he wanted to speak with an
attorney. He agreed to perform a DataMaster
assessment of his blood alcohol content. At 2:26 a.m. it was
determined that he was at a level 0.11 and at 2:29 a.m. it
was determined that he was at a level 0.12. Id. at
was ultimately charged with using an artificial light with a
weapon accessible, using an artificial light to spot animals,
and possession of a firearm while under the influence.
Thomas J. LaCross of the 88th District Court found that the
officers could not arrest Plaintiff, but that they did have
sufficient information to investigate and charge him.
Counts one and three are misdemeanors punishable by up to 90
days in jail each. The statute governing the arrest by a
peace officer requires a warrant unless one of the exceptions
applies, (see MCL 764.15). An analysis of the various
exceptions contained in the statute reveals that no exception
applies. Therefore, although no arrest could be made, the
State had information to investigate and charge.
Count two alleges that MCL 750.237(2) was violated in that
Defendant “did, possess, or have under control a
firearm while under the influence of alcoholic liquor, or
having an alcohol content of 0.08 or more grams per 210
liters of breath, or his ability to use a firearm was visibly
impaired because of the consumption of alcoholic
liquor.” For possessory crimes in Michigan, actual
possession is not required; constructive possession is
sufficient. People v Minch, 493 Mich. 87, 91; 825
N.W.2d 560 (2012). “A person has constructive
possession if he knowingly has the power and the intention at
a given time to exercise dominion or control over a thing,
either directly or through another person or persons.”
Id. at 92.
Moreover, in the context of firearms, “a defendant has
constructive possession of a firearm if the location is known
and it is reasonably accessible to the defendant.”
People v Hill, 433 Mich. 464, 470; 446 N.W.2d 140
(1989)… The charge of possessing a firearm while
intoxicated, contained in count two, shall be dismissed. The
Defendant was not in actual possession of the firearm.
Additionally, he did not have constructive possession of the
firearm because he did not know of its location. Also, count
one relies on possession and for the same reasoning is
The testimony of DNR Officer Christopher Lynch reflects
admission by Defendant to using an artificial light to spot
animals. This is a disputable fact for a jury determination.
Thus, count three of the amended complaint shall continue to
in re Def.'s M. Dismiss, ECF No. 1-8. Though Judge
LaCross did not dismiss the shining charge, the prosecutor
ultimately did. ECF No. 1 at 10.
complaint presents five counts. Count I alleges that
Defendants violated Plaintiff's rights under the Fourth
Amendment to be free from unreasonable searches and seizures.
Count II is against the DNR and alleges that the DNR had a
custom, pattern, or practice of illegal searches and seizures
and malicious prosecution. Id. at 11-13. Count III
is against Defendants Creagh, Hagler, Dean Molnar, Hopkins,
Gorno, and Joe Molnar. It alleges that they are liable for
authorizing, approving, or acquiescing to Lynch's and
Webster's deprivation of Plaintiff's rights.
Id. at 13-14. Count IV states that Defendants
conspired to deprive Plaintiff of his rights. Id. at
14- 15. Count V states that Defendants had no probable cause
to prosecute Plaintiff and are therefore liable for malicious
have moved for dismissal of all five of Plaintiff's
claims pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Rule 12(b)(1) provides that a party may assert
the defense that the court lacks subject matter jurisdiction.
Rule 12(b)(6) provides that a party may assert the defense
that the complaint ...