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Johnson v. Vanderkooi

Court of Appeals of Michigan

November 21, 2019

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.

          Kent Circuit Court LC Nos. 14-007226-NO, 14-002166-NO

          Before: Boonstra, P.J., and O'Brien and Letica, JJ.

         ON REMAND

          BOONSTRA, P.J.

         These consolidated appeals[1] 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[2] 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.

         I. PERTINENT FACTS AND PROCEDURAL HISTORY

         The facts underlying these appeals are set forth in detail in our previous opinions.[3] 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 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) [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).]

         In our 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 Court.[4]

         Our 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.]

         Because 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."[5] The parties filed supplemental briefs in accordance with that order, and we have additionally considered the arguments presented in those briefs.

         II. STANDARD OF REVIEW

         We 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).

         III. ANALYSIS

         A. FRAMING THE ISSUE BEFORE US

         Our 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 cause."[6]

         We note 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) (citations omitted).]

         While 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 ...


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