Moore v. Bannon et al

Filing 39

ORDER denying 34 Motion for Reconsideration; denying as moot 38 Motion to Adjourn Scheduling Dates. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
WALTER MOORE,
Plaintiff,

Case Number 10-12801
Honorable Thomas L. Ludington

v.
MARY BANNON,
Defendant.
_____________________________/

OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
Defendant Bannon seeks reconsideration of the Court’s November 1, 2011, opinion and order
granting in part and denying in part Defendants’ motion for summary judgment. ECF No. 34.
Defendant Bannon contends that the Court erred in denying her qualified immunity on Plaintiff’s
Fourth Amendment warrantless entry claim. More specifically, Defendant Bannon argues that the
Court “was focusing upon exigent circumstances to the exclusion of other dispositive analysis,
including the waiver of privacy doctrine” provided in United States v. Vaneaton, 49 F.3d 1423 (9th
Cir. 1995), and inappropriately relied on a 2002 Michigan State Police memorandum as its basis for
denying qualified immunity.
I
Eastern District of Michigan Local Rule 7.1(h) permits any party to move for reconsideration
of the Court’s conclusions within fourteen days of the entry of the order. E.D. Mich. L.R. 7.1(h)(1).
The Court does not permit a responsive pleading or hold hearings on motions for reconsideration.
E.D. Mich. L.R. 7.1(h)(2).
Generally, and without restricting the court’s discretion, the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable implication. The movant must
not only demonstrate a palpable defect by which the court and the parties and other

persons entitled to be heard on the motion have been misled but also show that
correcting the defect will result in a different disposition of the case.
E.D. Mich. L.R. 7.1(h)(2). “A palpable defect is a defect that is obvious, clear, unmistakable,
manifest or plain.” Scozzari v. City of Clare, 723 F. Supp. 2d 974, 981-82 (E.D. Mich. 2010)
(citation and quotation marks omitted). Furthermore, failure to address an issue constitutes a waiver
or abandonment of the argument. Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir. 1998). Motions for reconsideration “are aimed at re consideration, not initial
consideration.” Id.; Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“We have
found issues to be waived when they are raised for the first time in motions for reconsideration.”).
II
Bannon contends the exigent circumstances justification for entry into Plaintiff’s home
addressed primarily in her summary judgment papers and the Court’s earlier opinion “is not the only
potential justification for police to put a foot in the door of a suspect’s home.” ECF No. 34 at 2.
Bannon now argues that voluntary waiver is a second, separate justification. Although it is not
altogether clear to the Court that Bannon raised this argument in conjunction with the initial motion
and supporting papers, the Court will nonetheless address Bannon’s argument.
Bannon emphasizes that there is authority providing that, under some circumstances, a
suspect who comes to his doorstep waives his expectation of privacy under the Fourth Amendment,
citing United States v. Vaneaton, 49 F.3d 1423, 1425-27 (9th Cir. 1995). In such circumstances,
Bannon argues that exigent circumstances are unnecessary to justify the officer’s entry. Id. at 1426
n.2. Bannon argues that, under the reasoning in Vaneaton and the cases cited therein, Plaintiff
waived his expectation of privacy by answering her knock on the door, voluntarily opening the
inner, non-transparent door, and speaking with her through the outer, screen door that remained
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closed until Bannon opened it to enter Plaintiff’s home. Bannon argues that because Plaintiff was
then open to public view and she did not misidentify herself, use a crowbar to open his door, or order
Plaintiff out at gunpoint, Plaintiff cannot now maintain his expectation of privacy in his home. See,
e.g., United States v. Morgan, 734 F.2d 1158, 1161 (6th Cir. 1984), cert. denied 471 U.S. 1061
(1985) (concluding that the warrantless arrest of a suspect, as he stood within the door of a private
home, after emerging in response to coercive police conduct, violated his Fourth Amendment
rights). Bannon thus requests that the Court reconsider its prior order and grant qualified immunity
because a reasonable officer in her position would have, consistent with the privacy waiver cases
such as Vaneaton and Morgan, concluded that she may effect a limited, temporary entry for the
purpose of a warrantless misdemeanor arrest.
Bannon, however, does not explain how the Court’s opinion and order contained a palpable
defect by following clearly established law from the Sixth Circuit and the Supreme Court instead
of following the conclusion of a different circuit in Vaneaton. See ECF No. 33 at 13 (citing O’Brien
v. City of Grand Rapids, 23 F.3d 990, 996 (6th Cir. 1994) (concluding that a police officer’s entry
into a home without a warrant is presumptively unconstitutional under the Fourth Amendment) and
Payton v. New York, 445 U.S. 573, 589-90 (1980) (noting that the zone of privacy protected by the
Fourth Amendment is most clearly defined “when bounded by the unambiguous physical dimensions
of an individual’s home” and that the Fourth Amendment “has drawn a firm line at the entrance to
the house,” a threshold which police officers generally may not cross without a warrant or an
exception to the warrant requirement)). Bannon does not identify any legal authority in this Circuit
that suggests that the Court’s opinion and order contained a “defect that is obvious, clear,
unmistakable, manifest or plain” by concluding that Plaintiff had not waived his expectation of

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privacy by standing behind a screen door.
Moreover, this case does not present an issue of a contentious, unsettled area of federal law
regarding warrantless misdemeanor arrests at a suspect’s doorstep as Bannon suggests. Indeed, this
Circuit established in Cummings v. City of Akron, 418 F.3d 676, 685 (6th Cir. 2005), that the
plaintiff’s attempt to close the door to his house constituted a termination of the consensual
encounter, and communicated his lack of consent to any further intrusion by the officers, and
holding the officers’ entry unlawful. Cummings was decided ten years after Vaneaton and five years
before the instant case. Plaintiff’s expectations of privacy were not forfeited in this Circuit because
he opened the inside, main door and allowed Trooper Bannon to speak to him through the closed,
screen door. Moreover, under the reasoning in Cummings, Plaintiff again made clear his intent to
maintain his right to privacy by attempting to close the inner door to his home to terminate his
consensual encounter with Bannon. Plaintiff was not at the “threshold” and exposed to the public
as was the plaintiff in Vaneaton. The fact that Bannon did not coerce Plaintiff into speaking with her
and did not use exceptional force to enter his home is irrelevant to the analysis.
Bannon also claims that the Court erred in relying on a 2002 Michigan State Police
memorandum to deny qualified immunity. The Court’s discussion of the memorandum was
included to emphasize Bannon’s subjective knowledge that her actions were unreasonable.
Subjective knowledge, however, is not the standard for qualified immunity and the Court’s reference
to the 2002 Michigan State Police memorandum was merely illustrative. Bannon’s request for
qualified immunity was denied because a reasonable officer in her position would not have
concluded warrantless entry of Plaintiff’s home was appropriate based on exigent circumstances.
The events leading up to Bannon’s entry into Plaintiff’s home were not “quickly unfolding,” as she

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again suggests, but occurred over the course of several days. Moreover, the Fourth Amendment
violation occurred by virtue of Bannon electing to open the door and enter Plaintiff’s home. The fact
that Plaintiff may have some responsibility to Bannon for disregarding her order and closing the
inner door on her foot is not relevant to the question of whether she was entitled to enter his home.
As previously mentioned, Plaintiff was suspected of committing misdemeanors and not felonies.
He had been cooperative, which does not suggest that he was a risk of danger to the police or others
or that he would flee while Bannon sought a warrant for his arrest. Bannon has thus not identified
a palpable defect in the Court’s November 1, 2011, opinion and order.
III
Accordingly, it is ORDERED that Defendant’s motion for reconsideration (ECF No. 34)
is DENIED.
It is further ORDERED that the parties’ motion to adjourn scheduling dates (ECF No. 38)
is DENIED AS MOOT.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 12, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 12, 2012.
s/Tracy A. Jacobs
TRACY A. JACOBS

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