Brenay, Sr. et al v. Schartow et al

Filing 52

ORDER Denying 51 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DENNIS F. BRENAY, SR. and
LINDA BRENAY,
Plaintiffs,
v.

Case No. 15-cv-13213
Honorable Thomas L. Ludington

MICHAEL SCHARTOW, et al,
Defendants.
_______________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
Plaintiffs Dennis F. Brenay, Sr., and Linda Brenay brought suit against Defendants
Michael Schartow, Kyle Glocksine, Troy Sierras, City of Essexville, and Bay City on September
10, 2015. Compl., ECF No. 1. Plaintiffs alleged two claims in the Complaint. The first, brought
pursuant to 42 U.S.C. § 1983 against the individual officers, alleges that Defendants unlawfully
entered Plaintiffs’ home, used excessive force, and caused Brenay, Sr., to be arrested without
probable cause. Id. at 14–15. The second, brought against the City of Essexville and Bay City
pursuant to § 1983, alleges a policy and practice of inadequate training and supervision. Id. at
15–17. Plaintiffs contend that the officer Defendants violated their constitutional rights when
attempting to arrest their son, Dennis Brenay, Jr., for a personal protective order violation. On
September 6, 2016, the parties submitted a stipulated proposed order for the dismissal of
Defendant Kyle Glocksine. ECF No. 29. At the close of discovery, the remaining Defendants
filed motions for summary judgment. ECF Nos. 31, 32. On October 17, 2016, the parties
submitted stipulated proposed orders for the dismissal of Defendants City of Essexville and Bay
City. ECF Nos. 35, 36. On November 30, 2016, the Court granted summary judgment for

Defendants. In the order, the Court explained that Defendants were entitled to qualified
immunity because their actions were not clearly unlawful when they occurred. On December 14,
2016, Plaintiffs filed a motion for reconsideration.
I.
Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for
reconsideration of a previous order, but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows: “(1) a palpable defect, (2) the defect
misled the court and the parties, and (3) that correcting the defect will result in a different
disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 731, 733-34
(E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is “obvious, clear,
unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices,
Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). “[T]he 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.” E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris,
No. 2:15-CV-10203, 2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).
II.
In their motion for reconsideration, Plaintiffs make only one argument that was not
previously considered by the Court. Specifically, Plaintiffs argue that under clearly settled law it
was unlawful for the officers to reach through the doorway and grab Brenay, Jr, by the wrist after
informing him he was under arrest. In the Court’s order granting summary judgment, the Court
concluded that the illegality of the officer’s conduct was not beyond dispute, meaning that they
were protected by qualified immunity. The following sections of that order relevant here are:
In United States v. Santana, the suspect was “standing in the doorway of the
house.” 427 U.S. 38, 39 (1976). As the officers approached, Santana “retreated
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into the vestibule of her house.” Id. The officers followed through the open door
and arrested Santana. Id. The Court explained that “‘[w]hat a person knowingly
exposes to the public, even in his own house or office, is not a subject of Fourth
Amendment protection.’” Id. at 42 (quoting Katz v. United States, 389 U.S. 347,
351 (1967)). The Court further concluded that Santana was “not merely visible to
the public but was as exposed to public view, speech, hearing, and touch as if she
had been standing completely outside her house.” Id. Thus, the Court held that the
warrantless arrest was not unconstitutional, even though Santana retreated into her
home, because the arrest had begun in a public place. Id. at 43.
...
Plaintiffs are correct that the Supreme Court has drawn a firm line at the entrance
of the house, see Payton [v. New York], 445 U.S. [573] at 590 [1980], but
Santana demonstrates that a person standing in the doorway of the home cannot
necessarily reclaim Fourth Amendment protection by simply retreating into his or
her home. In Santana, the Court emphasized that the suspect was “exposed to
public view, speech, hearing, and touch.” 427 U.S. at 42. While the Michigan
Circuit Court and Court of Appeals concluded that Brenay, Jr., “never placed
himself in a public place,” the testimony of all parties clearly establishes that
Brenay, Jr., was standing close enough for the officers to publically view him,
hear him, and touch him. See People v. Brenay, No. 323284, 2015 WL 8984161 at
*3 (Mich. Ct. App. Dec. 15, 2015); Brenay, Sr., Dep. at 159–164; Linda Brenay
Dep. at 149–150; Brenay, Jr., Dep. at 74–75. That is, Brenay, Jr., was standing
close enough for an officer to reach inside the doorway and grab his wrist without
actually entering the house. Moreover, Brenay, Jr., has testified that he understood
that he was being arrested before the door began to shut and Sierras grabbed his
wrist. Brenay, Jr., Dep. at 75–77. Under these circumstances, a reasonable officer
could have believed that Brenay, Jr., had exposed himself to public view, hearing,
and touch, as explained by the Santana Court. Further, the closing door and the
resistance by Brenay, Jr., after Sierras grabbed his wrist could be interpreted by a
reasonable officer as an attempt by the suspect to escape further into the house
after an arrest had been set in motion.
Importantly, when examining the question of the Defendants’ entitlement to
qualified immunity, the question for the Court is not whether the officers’ conduct
was actually unconstitutional. Rather, Defendants are entitled to qualified
immunity if it is not “beyond debate” that their actions violated clearly established
law. Ashcroft v. al-Kidd, 563 U.S. at 741. Given Brenay, Jr.’s, proximity to the
door, the question of whether he placed himself in public view is not beyond
debate. Because not “every reasonable official’” would have understood that the
arrest was unlawful at the time it occurred, the arrest did not violate a clearly
established right. Reichle, 132 S. Ct. at 2093. Accordingly, Defendants are
entitled to qualified immunity on Plaintiffs’ unlawful entry claim.
Op. & Order at 9, 12–13, ECF No. 49.
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Plaintiffs cite for the first time, Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005).
In Cummings, officers came to a house looking for a suspect involving an alleged domestic
disturbance. Id. at 679. One officer opened the outside screen door and “knocked on the inside
entry door.” Id. Cummings, who was not the suspect, came to a window and asked the officers
what they wanted. Id. The officers directed Cummings to come to the door. Id. Cummings
partially opened the inside entry door and spoke briefly with the officers. Id. During the
conversation, one of the officers placed his foot inside the doorway. Id. The officers asked if the
suspect was inside the home. Id. Cummings told the officers that he was not and denied their
requests to enter the home. Id. At this point, one officer asked Cummings about the smell of
marijuana emanating from the home. Id. In response, Cummings attempted to close the front
door but was unable to because one officer still had his foot blocking the door’s path. Id. The
officers then pushed the door open, entered Cummings’s home, and arrested him. Id.
The Sixth Circuit held that the officers were not entitled to qualified immunity because
clearly established law made their entry unlawful. The Sixth Circuit first rejected the
Defendants’ argument that, because Cummings shut the door on the officer’s foot, there was
probable cause to believe he had committed the crime of assault and they could enter the home in
hot pursuit. Id. at 685–86. The Sixth Circuit explained that “it is highly questionable whether
Cummings’ act of closing the door on [the officer’s] foot actually constituted an assault.” Id. at
686. For that reason, the hot pursuit of a fleeing felon exception to the warrant requirement did
not apply.
The Sixth Circuit also distinguished the facts in Cummings with those in Santana:
In Santana, the Supreme Court upheld the effectuation of a warrantless arrest of
the defendant inside her home, because the police initiated the arrest while she
was standing in the open doorway of her house, and she retreated inside before
the police could apprehend her. . . . [I]n contrast to Santana, Cummings never
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fully exposed himself to the public view, given that he only opened the door very
slightly, and only at the request of the police. Additionally, unlike the situation in
Santana, Sherman and Vaughn did not attempt to arrest Cummings until after he
tried to shut the door, at which point he clearly indicated that he did not wish to be
exposed to the public.
Id.
The facts in the present case are more analogous to the facts in Santana than those of
Cummings. In Cummings, the plaintiff opened only the inner entry door “very slightly.”
However, the Brenays opened both the inner steel door and outer storm door fully, thus exposing
themselves entirely to public view. Additionally, the officers came to the Brenay home to arrest
Brenay, Jr., for a personal protective order violation. Unlike in Cummings, there is no reason to
question whether the plaintiff was the target of the offense. Iimportantly, Brenay, Jr., testified
that he understood he was being arrested before the door began to shut and before Sierras
grabbed his wrist. Brenay, Jr., Dep. at 75–77. In Cummings, the officers did not inform the
plaintiff he was under arrest before they attempted to enter the home. In fact, the conduct they
arrested him for, the alleged assault, occurred after and because of the officer’s illegal entry
(putting his foot inside the doorway). Here, in contrast, the officers did not cross the threshold of
the home until after Brenay, Jr., was informed that he was under arrest and actions had been
taken which suggested that Brenay, Jr., was attempting to evade arrest. The facts in the present
case are more similar to that in Santana. In both cases, the plaintiffs opened the doors fully (thus
exposing themselves to public view) and the officers initiated the arrest before the plaintiffs
attempted to shut the door or end the encounter.
Once again, the inquiry here is not whether the officer’s entry was lawful. That is a close
question about which reasonable individuals could disagree. The Supreme Court has clearly
indicated that the home is uniquely protected from warrantless searches and seizures. But, as
stated in the original order, the question is not whether the officers’ conduct was actually
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unconstitutional. Rather, Defendants are entitled to qualified immunity if it is not “beyond
debate” that their actions violated clearly established law. Ashcroft v. al-Kidd, 563 U.S. at 741.
The very fact that reasonable individuals might disagree about whether the present case is more
like Santana or Cummings suggests that the illegality of Defendants’ actions is not beyond
dispute. Rather, a reasonable officer could have concluded that, like in Santana, Brenay, Jr.,
exposed himself to public view.1 Accordingly, Plaintiffs have not demonstrated a palpable defect
in the Court’s qualified immunity analysis in the original order.
To the extent Plaintiffs also argue that the Court erred in dismissing the malicious
prosecution claim, Plaintiffs do not present any new legal authority or previously unconsidered
issues of material fact. Because Plaintiffs has not presented new arguments regarding this claim,
they have not shown a basis for reconsideration.
III.
Accordingly, it is ORDERED that Plaintiffs’ motion for reconsideration, ECF No. 51, is
DENIED.
Dated: December 21, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

1

Plaintiffs again argue that “under clearly settled Michigan law the officers knew or should have known that a
citizen has a right to resist an illegal arrest in his own home. People v. Moreno, 491 Mich. 38 (2012). . . . However,
apparently is no longer the law, for if the person refuses to answer questions and starts closing the door and he is
within arm’s length, then it is apparently okay for an officer to reach inside the house and yank this citizen out of it.”
Mot. Reconsideration, ECF No. 51, at 4–5. The argument however, has no particular relevance to the earlier
opinion. As stated, the Court is not concluding that Defendants’ entry into the house was lawful. Rather, the Court is
merely holding that the illegality of Defendants’ actions was not beyond dispute at the time they occurred, entitling
Defendants to qualified immunity. Further, the officers informed Brenay, Jr., that he was under arrest before any
entry into the home occurred. In fact, the entry into the home happened only because the officers reasonably
perceived the closing screen door as an attempt by Brenay, Jr., to evade the arrest. In typical circumstances, an
individual may refuse to answer questions and close the door on an officer. See Cummings, 418 F.3d at 685. But, “a
suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a
private place.” Santana, 427 U.S. at 43.

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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 December 21, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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