Circuit Court LC Nos. 14-007226-NO, 14-002166-NO
Before: Boonstra, P.J., and O'Brien and Letica, JJ.
consolidated appeals are back before this Court on remand
from our Supreme Court. The Supreme Court directed that we
determine "whether [the challenged policies] violated
plaintiffs' Fourth Amendment right to be free from
unreasonable searches and seizures." Johnson v.
VanderKooi, 502 Mich. 751, 780; 903 N.W.2d 843');">903 N.W.2d 843 (2017).
We conclude, under current caselaw, that they did not, and
that plaintiffs' Fourth Amendment rights were not
violated by the on-site taking of photographs and
fingerprints based on reasonable suspicion (i.e., during
valid Terry stops). We therefore affirm the trial
court's orders granting summary disposition in favor of
defendant City of Grand Rapids (the City) in these matters.
PERTINENT FACTS AND PROCEDURAL HISTORY
facts underlying these appeals are set forth in detail in our
previous opinions. Our Supreme Court summarized the
relevant underlying facts as follows:
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. . . .
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
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
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)
[no genuine issue of material fact] and in favor of the
officers pursuant to MCR 2.116(C)(7) [governmental immunity],
(10), and (I)(2) [opposing party entitled to judgment].
Plaintiffs individually appealed by right in the Court of
Appeals. . . . [Johnson v. VanderKooi, 502 Mich.
751, 757-759; 903 N.W.2d 843');">903 N.W.2d 843 (2017) (footnote omitted).]
previous opinions, we affirmed the trial court's orders
granting summary disposition in favor of the individual
defendants and the City. Johnson v. VanderKooi, 319
Mich.App. 589; 903 N.W.2d 843');">903 N.W.2d 843 (2017); Harrison v.
VanderKooi, unpublished per curiam opinion of the Court
of Appeals, issued May 23, 2017 (Docket No. 330537). Relevant
to the issue now before us on remand, we concluded in Part
III of each opinion that "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, 502 Mich. at 760, and we therefore affirmed
the trial court's orders granting summary disposition in
favor of the City. See, e.g., Johnson, 319 Mich.App.
at 626-628 (holding that "plaintiff did not establish a
genuine issue of material fact that his alleged deprivation
was caused by an unwritten custom or policy 'so
persistent and widespread as to practically have the force of
law.' "), quoting Connick v.
Thompson, 563 U.S. 51, 61; 131 S.Ct. 1350; 179
L.Ed.2d 417 (2011). Plaintiffs thereafter filed a joint
application for leave to appeal to our Supreme
Supreme Court directed that oral argument be scheduled on
whether to grant the application or take other action, and
ordered that the parties file supplemental briefs addressing
"whether any alleged violation of the plaintiffs'
constitutional rights were [sic] the result of a policy or
custom instituted or executed by [the City]."
Johnson v. VanderKooi, 501 Mich. 954; 905 N.W.2d 233
(2018). Subsequently, after supplemental briefing and oral
argument, the Supreme Court reversed Part III of this
Court's opinions, stating:
In summary, we hold that it has been conclusively established
by the City's concession that there exists a custom of
performing a P&P during a field interrogation when an
officer deems it appropriate. We further hold that, even
without the City's concession as to the existence of a
custom, the City's admissions, the officers'
testimony, the GRPD manual, and the training materials, when
viewed in the light most favorable to plaintiffs, are
sufficient to create a genuine issue of material fact as to
whether the City's custom has become an official policy.
Genuine issues of material fact also remain concerning
causation. Therefore, the Court of Appeals erred by affirming
the trial court's order granting summary disposition
based on the Court's conclusion that the alleged
constitutional violations were not the result of a policy or
custom of the City. We express no opinion with regard to
whether plaintiffs' Fourth Amendment rights were
violated. Therefore, we reverse Part III of the Court of
Appeals' opinion in both cases. [Johnson, 502
Mich. at 781.]
this Court, in its earlier opinions, had not reached the
issue of whether plaintiffs' Fourth Amendment rights were
violated by the P&P procedure, the Supreme Court remanded
these cases to this Court "to determine whether the
P&Ps at issue here violated plaintiffs' Fourth
Amendment right to be free from unreasonable searches and
seizures." Id. at 780. We subsequently issued
an order directing the parties to file supplemental briefs
"limited to issues in the scope of the remand from the
Michigan Supreme Court." The parties filed
supplemental briefs in accordance with that order, and we
have additionally considered the arguments presented in those
STANDARD OF REVIEW
review de novo preserved questions of constitutional law.
Hardrick v. Auto Club Ins Ass'n, 294 Mich.App.
651, 685; 819 N.W.2d 28 (2011).
FRAMING THE ISSUE BEFORE US
Supreme Court directed us to determine on remand
"whether the P&Ps at issue here violated
plaintiffs' Fourth Amendment right to be free from
unreasonable searches and seizures." Johnson,
502 Mich. at 781. The question before us, therefore, is
whether the P&Ps were constitutionally permissible. In
answering that question, it is necessary first to precisely
identify the nature of plaintiffs' claim relating to the
P&Ps. Indeed, our Supreme Court has already done so,
describing plaintiffs as arguing "that the record
demonstrated that the City had a policy or custom of
performing P&Ps without probable cause during
investigatory stops . . ., which may be based on reasonable
suspicion of criminal conduct, and that execution of that
policy or custom violated their Fourth Amendment
rights." Johnson, 501 Mich. at 760. In other
words, the linchpin of plaintiffs' claim was, is, and
remains that the City's policy or custom was
unconstitutional because it allowed P&Ps to be conducted
on the basis of reasonable suspicion alone, rather than on
the more stringent requirement of probable cause. And in
their supplemental briefs in this Court, plaintiffs similarly
encapsulated their constitutional argument as follows:
"Taking fingerprints without consent is a Fourth
Amendment search, and thus unconstitutional when performed as
part of a Terry stop without probable
parenthetically that Justice Wilder, joined by Justices
Markman and Zahra, stated in a concurring opinion that they
would "specifically direct the Court of Appeals to
decide on remand whether the complained-of 'policy or
custom' was facially unconstitutional."
Johnson, 502 Mich. at 792 (Wilder, J., concurring).
A local government entity violates § 1983 where its
official policy or custom actually serves to deprive an
individual of his or her constitutional rights. A city's
custom or policy can be unconstitutional in two ways: 1)
facially unconstitutional as written or articulated, or 2)
facially constitutional but consistently implemented to
result in constitutional violations with explicit or implicit
ratification by city policymakers. [Gregory v. City of
Louisville, 444 F.3d 725, 752 (CA 6, 2000), citing
Monell v. New York City Dep't of Soc Servs, 436
U.S. 658, 692-94; 98 S.Ct. 2018; 56 L.Ed.2d 611 (1978)
the majority did not frame the issue in the fashion suggested
by the concurring Justices, it stated, in response to the
concurrence, that its opinion "should not be read as
implying that whether the policy or custom identified by
plaintiffs is facially constitutional or facially
unconstitutional is irrelevant to this case as a whole,"
noting this Court "has yet to determine whether a
constitutional violation occurred, much less whether the
City's policy or custom is facially
unconstitutional," id. at 780 n 14. The Court
also noted ...