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Sherman v. Michigan Department of Natural Resources

United States District Court, E.D. Michigan, Northern Division

April 10, 2019

TRENT DOUGLAS SHERMAN, Plaintiff,
v.
MICHIGAN DEPARTMENT OF NATURAL RESOURCES et al., Defendant.

          ORDER GRANTING MOTION TO DISMISS

          THOMAS L. LUDINGTON United States District Judge

         On 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.

         The 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.

         On January 18, 2019, Defendants filed a motion to dismiss. For the following reasons, the motion will be granted.

         I.

         A.

         According 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.[1] 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.

         Defendants Lynch and Webster arrived at the property at approximately 11:35 p.m. where they encountered Plaintiff and another individual.[2] 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.

         Lynch 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.

         Webster 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.[3] 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 9.

         Plaintiff 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. Id.

         Judge 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 dismissed.
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 be prosecuted.

         Order 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.

         B.

         Plaintiffs 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 prosecution.

         II.

         Defendants 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 ...


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