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Penn v. Bergtold

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

April 15, 2019

TODD CHARLES PENN, Plaintiff,
v.
JASON BERGTOLD, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT JASON BERGTOLD'S MOTION FOR SUMMARY JUDGMENT (ECF #36)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.

         Defendant Jason Bergtold, a City of Novi police officer, arrested Plaintiff Todd Charles Penn for allegedly attempting to steal merchandise from a Bed Bath & Beyond store. Penn was later charged with retail fraud, and a jury acquitted him of that charge. Penn then filed this action in which he alleges that Bergtold arrested him without probable cause and maliciously prosecuted him - both in violation of the Fourth Amendment. (See Compl., ECF #1.) Bergtold has now moved for summary judgment based, in part, on qualified immunity. (See Mot., ECF #36.) For the reasons explained below, the Court GRANTS summary judgment in favor of Bergtold on Penn's unlawful arrest claim and DENIES summary judgment to Bergtold on Penn's malicious prosecution claim.

         I

         A

         On March 21, 2015, an African American man was shopping at a Bed Bath & Beyond store located in a strip mall in Novi, Michigan. (See Jacob Leonard Deposition, ECF #36-10 at Pg. ID 1143.) When the man was leaving the store, he had at least one “very large bag” in his possession. (Kathleen Simons Dep., ECF #40-9 at Pg. ID 1610.) As he left, he walked past Bed Bath & Beyond cashier Jacob Leonard. (See Leonard Dep., ECF #36-10 at Pg. ID 1149-50.) The man drew Leonard's attention because he “activate[d] the [store's] security system, ” which indicated that he may not have paid for all of his items. (Id. at Pg. ID 1149.) The alarm “didn't faze [the man]. He just proceeded to walk out [of the store].” (Id.)

         Leonard and a second Bed Bath & Beyond employee, Kathleen Simons, then followed the man into the store's parking lot. (See Id. at Pg. ID 1149-51.) They confronted him, and he did not say that he paid for all of his items. Instead, he responded that the employees “[did not] have the right to [question him]” because he was “a police officer.” (Id. at Pg. ID 1150). A third Bed Bath & Beyond employee, Kelly Gauthier, then joined Leonard and Simons in the parking lot and confronted the thief. (See id.) The man subsequently abandoned his bags and started walking towards the opposite end of the strip mall. (See Kelly Gauthier Dep., ECF #40-10 at Pg. ID 1684, 1699.)

         At around the same time that Gauthier confronted the thief outside of the store, Leonard called 911. (See Leonard Dep., ECF #36-10 at Pg. ID 1155-56.) Novi police officers, including Bergtold, were dispatched to the scene at 5:03 p.m. (see Police Report, ECF #36-3 at Pg. ID 748), and they arrived on the scene “within five minutes” of Leonard's call. (Leonard Dep., ECF #36-10 at Pg. ID 1156.)

         Bergtold then spoke with Simons and Gauthier. The two women provided Bergtold similar descriptions of the thief that they had seen and confronted. Simons described the thief as “[a]n older black male, black Pea coat, gray hat, and [] she thought … blue jeans.” (Bergtold Dep., ECF #36-2 at Pg. ID 611.[1]) Simons also told Bergtold that the “male identified himself as a police officer.” (Id.) Gauthier informed Bergtold that the thief was a “black male, 50 to 60 [years old]” wearing a “grayish … knit cap, ” a “black jacket, ” and “blue jeans.” (Gauthier Dep., ECF #40-10 at Pg. ID 1685.) Gauthier further told Bergtold that the thief's coat was “like a Pea coat.” (Id.) She explained to Bergtold that “it was a flat jacket that wasn't a puffy jacket like a ski jacket. It was Pea coat length but [she] wasn't sure of the type of jacket.” (Id.) Gauthier also described the thief as “unusual” (id. at Pg. ID 1684) and “unstable.” (Bergtold Dep., ECF #36-2 at Pg. ID 632.) Finally, Gauthier told Bergtold that the thief was last seen walking towards the opposite end of the strip mall. (See Gauthier Dep., ECF #40-10 at Pg. ID 1699.)

         B

         Not long after Bergtold spoke to the Bed Bath & Beyond employees, he began searching the area of the shopping center near where the thief was last seen. (See Bergtold Dep., ECF #36-2 at Pg. ID 654-55.) One of the stores in that location was Value City. (See id.) Bergtold saw a man “in the parking lot in front of Value City” who, Bergtold believed, appeared similar to the physical description of the thief. (Id. at Pg. ID 656.) At approximately 5:26 p.m., Bergtold approached the man and began speaking with him. (See Dashcam Recording, ECF #36-7.) The man was Penn.

         C

         Bergtold's initial interaction with Penn was captured on Bergtold's dash cam recording system. (See id.) As depicted in that video, Bergtold approached Penn and asked if he could speak with him, and Penn answered “Yeah.” Bergtold then asked Penn if he had been to the Bed Bath & Beyond, and Penn responded “No.” Bergtold next asked Penn who he worked for. Penn said that he worked for the “Wayne County Sheriff.” Later, Bergtold asked Penn if he was armed, and Penn responded that he was because he “work[ed] for you guys.” Penn immediately thereafter told Bergtold that he was “one of you all” (i.e., law enforcement). Bergtold then explained to Penn that he (Bergtold) had been given a description of a “guy [who] looks just like you.”

         In fact, the description of the thief that Bergtold had received was not an exact match to Penn. Penn did match the description in certain respects: he was an older, African-American male (see Penn Dep., ECF #40-6 at Pg. ID 1426-27); he was located in the same vicinity where Bergtold was told the thief was last seen (see Id. at Pg. ID 1427); he was wearing a cap, black jacket, and long pants (see Id. at Pg. ID 1428); and he was employed as a law enforcement officer (see Id. at Pg. ID 1412). However, Penn also differed from the described thief in some respects: Penn was wearing a brown hat, not a “grayish” hat (see Id. at Pg. ID 1428); he was wearing brownish-green cargo pants, not blue jeans (see id.); he was wearing a “black North Face puffy coat, ” not the “flat…pea coat” that Gauthier described to Bergtold (see id.); and while Gauthier described the thief as “unstable, ” Bergtold considered Penn “[not] aggressive[] and relatively calm” during their interaction. (Bergtold Dep., ECF #36- 2 at Pg. ID 696.)

         During the conversation between Bergtold and Penn, Penn suggested that two of them go to the Bed Bath & Beyond store. (See Dashcam Recording, ECF #36-7; Penn Dep., ECF #40-6 at Pg. ID 1433.) Penn apparently believed that the witnesses would quickly confirm to Bergtold that Penn was not the thief they had confronted. Bergtold at first ignored that request. (See id.) But after Penn again suggested returning to Bed Bath & Beyond so that the witnesses could exonerate him, Bergtold agreed to take Penn to the store. (See id.)

         D

         Bergtold then returned to Bed Bath & Beyond with Penn. Bergtold went inside the store to speak with Leonard, Gauthier, and Simons.[2] (See Bergtold Dep., ECF #36-2 at Pg. ID 705.) Penn took a seat on the hood of a police car. (See Dashcam Recording, ECF #36-7; Penn Dep., ECF #40-6 at Pg. ID 1433-34.) Penn was not handcuffed or restrained in any way while sitting on the hood. (See Penn Dep., ECF #40-6 at Pg. ID 1433.) While seated, he spoke with other officers on the scene. (See id.)

         Bergtold had Leonard, Gauthier, and Simons look at Penn through the store window, and he asked each of them if Penn was the man that they saw attempt to steal items from the store. (See Bergtold Dep., ECF #36-2 at Pg. ID 705.) Leonard positively identified Penn as the man that he saw set off the security alarm and attempt to steal items from the store. (See Leonard Dep., ECF #36-10 at Pg. ID 1177.) Gauthier also positively identified Penn as the thief. (See Gauthier Dep., ECF #40-10 at Pg. ID 1687.) Gauthier identified Penn as the thief even though, as described above, Penn's clothing differed from the clothing that she told Bergtold the thief was wearing and despite the fact that Penn did not appear to Gauthier to be mentally unstable. (See Id. at Pg. ID 1687-88.) Gauthier based her identification on her “face-to-face encounter” with the thief. (Id. at Pg. ID 1687.) Gauthier insists that she was then, and remains today, “certain” that Penn was the thief she confronted in the store parking lot. (Id. at Pg. ID 1698.)

         Simons, however, told Bergtold that she “[didn't] believe that [Penn was] the [thief]” because Penn was “taller and larger” than the man she confronted. (Simons Dep., ECF #40-9 at Pg. ID 1627.) Simons says that she “remember[s] telling [Bergtold], you know, I'm not sure but I don't think that's the guy. I don't think that's the guy. The guy I saw, and this is what I told [Bergtold], … the guy I saw larger, taller, different.” (Id. at Pg. ID 1639.)

         At around this same time, another person who had been shopping at the strip mall approached the other officers on the scene. That man, Ferris Anthony, “told [the officers] you guys arrested the wrong guy. [Penn] was very clearly different than the man that I saw walking out of [the store].” (Anthony Dep., ECF #40-8 at Pg. ID 1562.) Anthony said the same thing to Bergtold when Bergtold returned from inside the store. (See id.)

         E

         Bergtold ultimately arrested Penn for retail fraud. Bergtold concluded that he had probable cause for the arrest based on “all [of] the information [he] had” at the time of Penn's arrest. (Bergtold Dep., ECF #36-2 at Pg. ID 704.) That information included, but was not limited to, the positive eye-witness identifications of Penn by Leonard and Gauthier, the fact that Penn was located around the same time and near the same location of the strip mall where the thief was last seen, that Penn matched some portion of the description given to Bergtold (i.e., age, race, sex, the color of his coat, the length of his pants, and the wearing of a dark-colored hat), and the fact that Penn was employed as a law enforcement officer (which matched the thief's statement that he was a law enforcement officer). (See Id. at Pg. ID 704-05.) Bergtold said that he found it “very important” that the thief had identified himself as a law enforcement officer and that Penn was also employed as a law enforcement officer. (Id. at Pg. ID 736.)

         F

         Bergtold later returned to the station and drafted a police report. (See Police Rpt., ECF #36-3.) In that report, Bergtold wrote that Gauthier, Leonard, Simons, and Anthony had all “positively identified” Penn as the thief. (See Id. at Pg. ID 750, 752.) In fact, however, neither Simons nor Anthony positively identified Penn as the thief.[3] (See Simons Dep., ECF #40-9 at Pg. ID 1628; Anthony Dep., ECF #40-8 at Pg. ID 1565.)

         Bergtold also described his first contact with Penn. Bergtold wrote that when he first addressed Penn, Penn “got out of [his] car, [] began walking toward me, ” said “‘I am one of you[, ]' and showed me a badge.” (Police Rpt., ECF #36-3 at Pg. ID 749.) Bergtold later noted in the report that “one of the first things he [Penn] told me [was] that … [I am] ‘one of you.'” (Id. at Pg. ID 750.)

         On March 24, 2015, Detective Randall Mince of the Novi Police Department reviewed “the [police] report and obtained a copy of the surveillance footage from Bed Bath & Beyond.” (Id. at Pg. ID 756.) Based on that review, and in reliance on the information in the report, Detective Mince decided to “forward[]” the case “for a warrant.” (Id.; see also Mince Dep., ECF #40-12 at Pg. ID 1717.) The Oakland County Prosecutor ultimately charged Penn with retail fraud.

         The case against Penn then proceeded to trial. At the conclusion of the prosecution's case, Penn moved for a directed verdict. The state trial court denied Penn's motion. The trial court noted that it was the “toughest directed verdict [motion]” that the court had encountered and that “if this was a bench trial, [the court would] acquit [Penn].” (ECF #25-8 at Pg. ID 415.) But, the trial court concluded that when viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence from which a jury could find Penn guilty of retail theft beyond a reasonable doubt. (See id.) The trial court relied heavily on the fact that the thief had “said [that he was] a police officer immediately and then it just so happen[ed] that coincidentally the person that the officers [came] upon [was] a police officer as well.” (Id.) The trial court found that to be “a[n] unusual fact to happen by coincidence in such a short period of time.” (Id.) At the close of the proofs, the jury acquitted Penn of the retail fraud charge.

         II

         Penn filed this action against Bergtold on March 19, 2017.[4] (See Compl., ECF #1.) Penn brings two claims against Bergtold under the Fourth and Fourteenth Amendments, both pursuant to 42 U.S.C. § 1983. First, Penn alleges that Bergtold “wrongfully” arrested him. (See Id. at ΒΆ32, Pg. ID 7.) Second, Penn claims that ...


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