Hall et al v. Hopper et al

Filing 27

ORDER granting in part and denying in part 17 Defendants' Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIE JOE HALL, and
GLENDA HALL,
Plaintiffs,
Case No. 10-11200
v.
HONORABLE DENISE PAGE HOOD
ROSEANNE HOPPER,
AARON SHREWSBURY,
GREGORY HENKE,
JENNIFER CATNER, and
CITY OF TAYLOR
Defendants.
_______________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

I.

INTRODUCTION
This matter is before the Court on Defendants’ Motion for Summary Judgment [Docket

No. 17, filed on February 28, 2011]. Plaintiffs filed a response in opposition on March 20,
2011 [Docket No. 20], to which Defendants replied [Docket No. 25, filed on March 28, 2011].
II.

STATEMENT OF FACTS
On July 30, 2009, Plaintiff Glenda Hall’s (“Plaintiff Mrs. Hall”) daughter, Tyra, and

Tyra’s cousin were walking to a party store. While walking to the store, a man who had
previously shot at or around the girls pulled up on a blue and black motorcycle or moped, made a
threatening gesture, and showed them a gun. Tyra immediately contacted Mrs. Hall, who in turn
contacted Plaintiff Joe Hall (“Mr. Hall” or “Plaintiff”) and the police.

1

According to Plaintiffs, Mr. Hall was practicing to receive a concealed weapons permit at
Top Gun shooting range when he received the call. He hurriedly left Top Gun, placing the
handgun he had used for practice in the front seat console of his vehicle. Defendants dispute this
account, as there is no record of Mr. Hall having been at the shooting range .
Plaintiffs contend he drove to the Ponds Apartments, where he spoke to gatekeeper
Dwight Bembow. He asked Mr. Bembow if he had seen a man riding a blue or black motorcycle
in or out of the apartment complex. Hall informed Bembow that the man had shot at his
daughter a week or so before, and asked Mr. Bembow to call the police if he saw him. Mr. Hall
then left the Ponds Apartments, and asked the same questions and made the same request to
gatekeeper Nancy Arnold. He then left the complex.
Ms. Arnold contacted her supervisor, who advised her to report the incident to the police.
Ms. Arnold called the Taylor police, spoke with Public Service Officer (PSO) James Pilchak,
and informed him that a man had pulled up to the gate, looking for “Dexter Davis and he said
that if he sees them, he’s going to shoot them and call the police.” Ex. 2 to Pl.’s Brief, Nancy
Arnold’s Telephone Call to Taylor Police. During the same conversation, Ms. Arnold informed
police that Mr. Hall (whom she did not know by name) did not identify Dexter Davis, but she
immediately knew who he was referring to when he “mentioned the guy on the moped.” Arnold
provided Taylor police with Mr. Hall’s license plate number. Id. Plaintiffs do not dispute that
Ms. Arnold provided this information, however, he contends that Ms. Arnold lied when speaking
to PSO Pilchak.
PSO Pilchak reported Arnold’s call to the dispatcher, Defendant Jennifer Catner
(“Catner”), who sent a radio message conveying the information provided by Ms. Arnold to the

2

road officers. The radio message erroneously stated that Mr. Hall arrived at the Ponds, rather
than the Parks, and the dispatcher made the statement “We’re assuming he’s armed since he is
threatening to shoot Mr. Davis.” Id. According to Defendants, officers began to look for the
described vehicle, heading toward the residence of Dexter Davis. Other officers went to Ms.
Arnold, who confirmed the information she had previously provided.
Defendants maintain that Officer Gregory Henke saw a car matching the provided
description on Goddard Road, driven by an African-American male, later identified as Mr. Hall.
Henke sent a radio message that he saw the car, provided a description of the driver, and
confirmed the license plate number. Officers Aaron Shrewsbury, Henke, and Roseanne Hopper
claim that the driver then began to take evasive and/or nervous actions, and pulled the car over
into the parking lot of the Get’N’Go Store.
Plaintiffs contend Mr. Hall was driving back toward his own home, and moved to the
right lane on Goddard (traveling westbound) in order to stop at the Get’N’Go store to purchase
some soda. After changing lanes, he stopped at a red light and police officers pulled in behind
him. When the light turned green, Mr. Hall proceeded through the intersection and was pulled
over in the parking lot of the Get’N’Go store.
Police ordered Mr. Hall to place his hands outside of the window. Plaintiffs state Mr.
Hall was ordered out of the car at gunpoint and handcuffed.1 According to Mr. Hall, Officer
Hopper approached his car and began searching it without Mr. Hall’s permission. Mr. Hall was
asked whether he had any weapons, and Mr. Hall informed the officers of the gun in the console

1

The time at which Mr. Hall was handcuffed is disputed. According to Plaintiffs, he was
handcuffed immediately after being ordered out of the car. According to Defendants, he was
handcuffed after being arrested for carrying a concealed weapon.
3

and a gun in the trunk without ammunition. Officer Hopper recovered a loaded gun from the
console and a gun from the trunk, for which Mr. Hall had no permit.
Defendants allege that the only contact Mr. Hall had with Officer Shrewsbury was bas he
was being handcuffed, placed in the car, and transported to the jail. Defendants further state that
Mr. Hall never had any contact with Officers Catner, Hopper, and Henke.
Mr. Hall states that he was transported to the Taylor Police Department shortly after
8:00p.m., but was not allowed to make a telephone call and was not advised of his Miranda
rights until the next day (approximately sixteen hours later, when he was interviewed by
Detective Schwein). Defendants contend Mr. Hall informed Detective Schwein that he drove to
the Parks and Ponds apartments in search of the man who approached his daughter, because he
wanted to find out who he was. Hall said he forgot he had the loaded gun in his car. He was
arraigned on August 1, 2009 on the carrying a concealed weapon change and released on a
$5,000 bond.
On October 7, 2009, at the preliminary hearing, Ms. Arnold testified that Mr. Hall never
threatened to shoot Dexter Davis, but instead made a statement that she interpreted to mean that
if the police did not get Mr. Davis, Mr. Hall would. On December 11, 2009, Judge Thomas E.
Jackson of the Criminal Division of the Wayne County Circuit Court granted Mr. Hall’s motion
to suppress evidence (any items found in the car and any statements made by Mr. Hall), finding
that there was no probable cause to stop Mr. Hall or to conduct a search and seizure. After a
motion for reconsideration, the criminal charges were dismissed and there was no appeal.
Plaintiffs now bring this action, asserting claims under 42 U.S.C. §1983 and various state
laws.

4

III.

APPLICABLE LAW & ANALYSIS
A.

Legal Standard for Summary Judgment

Pursuant to Rule 56(c), summary judgment may only be granted in cases where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” The moving party bears the burden of showing
no dispute as to any material issue. Equal Employment Opportunity Comm’n v. MacMillan
Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974). A dispute must be evident from
the evidence in order to deny such a motion. Such a dispute must not merely rest upon the
allegations or denials in the pleadings, but instead must be established by affidavits or other
documentary evidence. Fed. R. Civ. P. 56(e). When ruling, the Court must consider the
admissible evidence in the light most favorable to the non-moving party. Sagan v. United States
of Am., 342 F.3d 493, 497 (6th Cir. 2003).
“At the summary judgment stage, facts must be viewed in the light most favorable to the
nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.
372, 380 (2007) (emphasis added). To create a genuine issue of material fact, the nonmovant
must do more than present “some evidence” of a disputed fact. “If the [nonmovant’s] evidence
is merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations omitted). Accordingly, a nonmovant “must produce
evidence that would be sufficient to require submission to the jury of the dispute over the fact.”
Mathieu v. Chun, 828 F. Supp. 495, 497 (E.D. Mich. 1993) (citations omitted). “When opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so that no

5

reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment. Scott, 550 U.S. at 380.
B.

Qualified Immunity

Governmental officials are entitled to qualified immunity when their discretionary acts
do “not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992). The Supreme Court has
set forth a two-part test to determine whether qualified immunity should attach. First, the court
must decide whether, in the light most favorable to the party asserting the injury, the facts
alleged show the official’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194,
201 (2001). If there is no such violation, the inquiry ends here. Id. If a violation can be
adequately stated, the court next asks whether the right was clearly established. Id. Providing
guidance in determining whether a right was clearly established, the Court stated, “[t]he relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable offic[ial] that his conduct was unlawful in the situation he confronted.” Id.
Saucier also provides that an official’s reasonable mistake is still cloaked with immunity. Id.
Plaintiffs must show that the officers violated a right so clearly established that any official in
Defendants’ positions would have understood that they were under an affirmative duty to refrain
from such conduct. Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988), cert. denied, 488 U.S.
1007 (1989). In other words, Plaintiffs must demonstrate that Defendants conduct was
objectively unreasonable in light of Plaintiffs’ clearly established rights. See Williams v. Mehra,
186 F. 3d 685, 691 (6th Cir. 1999).
Once Defendants have provided facts showing that the officers were acting within the

6

scope of their authority, the burden of demonstrating that qualified immunity is inappropriate
falls on the shoulders of Plaintiffs. See, e.g., Sheets v. Mullins, 287 F.3d 581 (6th Cir. 2002).
Plaintiffs must show that the officers violated a right so clearly established that any official in
Defendant officers’ positions would have understood that they were under an affirmative duty to
refrain from such conduct. Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988), cert. denied, 488
U.S. 1007 (1989).
Immunity is afforded even if law enforcement officials “‘reasonably but mistakenly
conclude that probable cause is present.’” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). The Supreme Court has further stated that
probable cause to arrest existed if “‘at the moment the arrest was made . . . the facts and
circumstances within [the officers’] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing”’ that a crime occurred.
Hunter, 502 U .S. at 228 (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Again, the focus, for
purposes of qualified immunity, is on the objective legal reasonableness of the official's actions
in light of clearly established law. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Garvie v.
Jackson, 845 F.2d 647, 649 (6th Cir. 1988).
Mr. Hall’s criminal case for the underlying alleged crime was dismissed after the
Honorable Thomas E. Jackson of the Criminal Division of the Wayne County Circuit Court
granted a motion to suppress, and denied a motion for reconsideration by the prosecution, on the
basis that there was no probable cause in this case. Viewing the facts in the light most favorable
to the party asserting the injury, there is, at a minimum, a genuine issue of material fact as to
whether the officers had probable cause to stop Mr. Hall from the outset. In her telephone call to

7

the Taylor police, Nancy Arnold made no mention that Mr. Hall was armed. Ms. Arnold stated
that Mr. Hall never identified Dexter Davis by name. The admissibility of evidence uncovered
from a search relying on a radio bulletin, “its admissibility turns on whether the officers who
issued the flyer [or bulletin] possessed probable cause to make the arrest. It does not turn on
whether those relying on the flyer [or bulletin] were themselves aware of the specific facts which
led their colleagues to seek their assistance.” United States v. Hensly, 105 S.Ct. 675, 681 (1985);
see also Feathers v. Aey, 319 F.3d 843, 849 (6th Cir. 2003). Even if the police relied on
Corporal Catner’s dispatch, that is insufficient to establish probable cause, as Corporal Catner
lacked probable cause.
Even under the more permissive standard set forth in Terry v. Ohio, under which a person
may be stopped in the absence of probable cause, an officer “must be able to point to specific
and articulable facts which, taken together with rational inferences from those facts, reasonably
warrant [the] intrusion.” 392 U.S. 1, 21 (1968). In this case, such articulable and specific facts
do not exist. Instead, the officers were acting on the “inarticulate hunch” that Mr. Hall was
armed and engaged in criminal activity, based upon the assumptions of both Nancy Arnold and
Corporal Catner. When viewing the facts in the light most favorable to Plaintiffs, a question of
fact exists as to whether the officers had qualified immunity.
To determine whether qualified immunity attaches, the Court must also determine
whether Mr. Hall’s constitutional rights were clearly established. It is clearly established
that, under the Fourth Amendment to the Constitution, Mr. Hall has a right to be free from
unreasonable searches and seizures in their persons, houses, papers, and effects. Hensley, 105
S.Ct. at 678-9. Taking all facts in the light most favorable to Mr. Hall, there is a genuine issue of

8

material fact as to whether any officer should have understood that she had an affirmative duty to
refrain from the illegal stop of Mr. Hall and the illegal search of his vehicle. For the
aforementioned reasons, summary judgment is not appropriate on the issue of qualified
immunity.
C.

Municipal Liability

To establish municipal liability, a plaintiff first must establish that a constitutional
violation has occurred. Lewellen v. Metropolitan Gov’t of Nashville and Davidson County,
Tennessee, 34 F.3d 345, 350 (6th Cir. 1994). After this is established, a municipality will be
liable if the constitutional violation was a result of the municipality’s custom or policy. Monell
v. New York City Dept. of Soc. Serv., 436 U.S. 658 (1978). Liability can also be premised on a
municipality’s or county’s failure to train its officers demonstrates a risk that is “so obvious as to
constitute deliberate indifference to the rights of its citizens.” Gray v. City of Detroit, 399 F. 3d
612, 618 (6th Cir. 2005); See also City of Canton v. Harris, 489 U.S. 378, 390 (1989)(“[T]he
need for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.”).
A municipality can be liable under § 1983 only where “its policies are the moving force
behind the constitutional violation.” Id. at 388 (1989). There must be “a direct causal link
between a municipal policy or custom and the alleged constitutional violation. Id. at 385. It is
true that,
“[w]hile officials may not be liable under section 1983 because their actions (or
failure to act) were not constitutional violations according to clearly established
law at the time the actions took place, a municipality may nevertheless be liable if
the actions complained of rise to the level of constitutional violations in light of
9

present law. Stated another way, it is possible that city officials may be entitled
to qualified immunity for certain actions while the municipality may nevertheless
be held liable for the same actions.
Barber v. City of Salem, 953 F. 2d 232, 237-38 (6th Cir. 1992)(Internal citations omitted).
Further, “[p]roof of a single incident of unconstitutional activity is not sufficient to impose
liability under Monell, unless proof of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker.” Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985).
As discussed above, there exists a genuine issue of material fact as to whether a
constitutional violation occurred. For municipal liability to attach, however, Mr. Hall must
demonstrate that the violation resulted from the municipality’s custom or policy. A party may
demonstrate an unlawful policy or custom by showing a policy of inadequate training or
supervision. See Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992). To make out
a claim for municipal liability based on failure to train or supervise, there are “three distinct facts
which the plaintiff must prove: that a training program is inadequate to the tasks that the officers
must perform; that the inadequacy is the result of the city’s deliberate indifference; and that the
inadequacy is ‘closely related to’ or ‘actually caused’ the plaintiff’s injury.” Hill v. McIntyre,
884 F.2d 271, 275 (6th Cir. 1989). Additionally, such a failure must “amount[] to deliberate
indifference to the rights of persons with whom the police came into contact.” Id. (internal
citations omitted).
Plaintiffs argue that Defendant Catner dispatched without supervision, and she alone
made the erroneous dispatch. Accepting the Plaintiff’s version of facts for the purposes of this
motion, Plaintiff provides nothing to suggest to this Court that Defendant Catner was or should

10

have been required to seek permission from a higher ranking officer prior to making a dispatch.
Even assuming Corporal Catner should have sought review prior to making the dispatch, there is
no evidence indicating that a failure to require her to do so amounts to a deliberate indifference
to the rights of others. As there is no genuine issue of material of fact as to whether municipal
liability should attach, summary judgment in favor of Defendant City of Taylor is proper on this
issue, and the City of Taylor must be dismissed.
D.

Defamation

Under Michigan law, “the elements of a defamation claim are: (1) a false and defamatory
statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault
amounting at least to negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm (defamation per se) or the existence of special harm
caused by publication.” Mitan v. Campbell, 706 N.W.2d 421 (Mich. 2005). “[T]ruth is an
absolute defense to a defamation claim.” Porter v. Royal Oak, 214 Mich. App. 478, 486 (1995).
In order for a defamation claim to succeed, there must be material falsity. Koniak v. Heritage
Newspapers, Inc., 198 Mich. App. 577, 579-580 (1993).
Defendant argues that there was no false and defamatory statement made, as Defendant
Catner dispatched the same information provided by Nancy Arnold. Plaintiffs argue Defendant
Catner is liable for defamation because of her statement, “we’re assuming he’s armed since he is
threatening to shoot Mr. Davis.” According to Mr. Hall, he was unarmed and had not threatened
to shoot. Plaintiffs do not dispute that Nancy Arnold informed Defendant Catner that Mr. Hall
threatened to shoot Mr. Davis. While it may not provide probable cause or reasonable suspicion,
Defendant Catner’s dispatch relaying information that was indisputably called into the station

11

does not amount to negligence. Defendant Catner’s statement that they are “assuming he was
armed” was true, as, regardless of the validity of the assumption, the officers were assuming he
was armed. As there is no genuine issue of material fact as to whether Defendants were
negligent, Defendants are entitled to summary judgment on the defamation claim.
E.

Malicious Prosecution

A malicious prosecution claim brought pursuant to section 1983 must be based upon the
Fourth Amendment. See Spurlock v. Satterfield, 167 F. 3d 995, 1006 n. 19 (6th Cir. 1999).2 A
police officer cannot be liable for alleged malicious prosecution when the officer did not make
the decision to bring charges. See Skousen v. Brighton High Sch., 305 F. 3d 520, 529 (6th Cir.
2002). In Skousen, the court held that the plaintiff’s malicious prosecution claim failed because
the plaintiff “offered no evidence . . . supporting her claim that [the defendant] caused her to be
prosecuted,” and there was “no evidence that [the defendant] made or even was consulted with
regard to the decision to prosecute [the plaintiff].” Id. at 529. Plaintiffs have not provided this
Court with any evidence establishing a genuine issue of fact that any Defendants made or were
consulted with in regard to the charges brought against Mr. Hall. Plaintiffs’ Fourth Amendment
malicious prosecution claim is dismissed.

2

The Court notes that there appears to be some conflict within this circuit regarding the
state of section 1983 malicious prosecution claims. Id. (finding that the Supreme Court’s
decision in Albright v. Oliver, 510 U.S. 266 (1994) authorizes a Fourth Amendment malicious
prosecution claim); See also, Frantz v. Village of Bradford, 245 F. 3d 869 (6th Cir. 2001)
(holding that Albright does not authorize a separate claim of malicious prosecution independent
of the underlying illegal seizure claim). The Sixth Circuit in Darrah v. City of Oak Park, noted
that “when a later decision of this court conflicts with one of our prior published decisions, we
are still bound by the holding of the earlier case.” 255 F. 3d 301, 310 (6th Cir. 2002) (“We are
not bound by the Frantz court’s interpretation of Spurlock . . .[n]o new Supreme Court case
justified the Frantz court’s decision to disregard Spurlock.” Id. at 312 n. 4. As such, this Court
concludes that Albright authorizes a Fourth Amendment malicious prosecution claim.
12

Plaintiffs likewise cannot establish a state claim of malicious prosecution. To sustain a
claim of malicious prosecution of a civil proceeding the plaintiff must show: (1) the prior
proceedings terminated in favor of the present plaintiff; (2) the absence of probable cause for the
prior proceedings; (3) malice or showing that the proceedings were filed for a purpose other than
to secure the proper adjudication of the claim; and (4) special injury stemming directly from the
prior proceedings. Dupis v. Kemp, 2006 WL 401125 *1 (Mich.App. Feb. 21, 2006), see also
Young v. Motor City Apartments Limited Dividend Housing Association No. 1 and No. 2, 133
Mich.App. 671, 675 (1984). Plaintiffs cannot show any genuine issue of material fact as to
whether Defendants were involved in bringing the charge against Mr. Hall and his federal
malicious prosecution claim also fails.
F.

False Arrest/False Imprisonment

“A false arrest is an illegal or unjustified arrest, and the guilt or innocence of the person
arrested is irrelevant. To prevail on a claim of false arrest or false imprisonment, a plaintiff must
show that the arrest was not legal, i.e., the arrest was not based on probable cause. If the arrest
was legal, there has not been a false arrest or a false imprisonment.”3 Peterson Novelties, Inc. v.
City of Berkeley, 259 Mich.App. 18 (Mich.App. 2003).
To sustain a claim of false imprisonment, three elements must be met. These elements
are “(1) an act committed with the intention of confining another, (2) the act directly or

3

“A person who is falsely arrested is at the same time falsely imprisoned, and an
unlawful arrest may give rise to a cause of action for either false arrest or false imprisonment.
Thus, it has been stated that false arrest and false imprisonment are not separate torts, and that a
false arrest is one way to commit false imprisonment; since an arrest always involves a restratit,
it always involves imprisonment.” Peterson Novelties, 259 Mich. App. at 18, n.5 (emphasis in
original) (internal citations omitted).
13

indirectly results in such confinement, and (3) the person confined is conscious of confinement.”
Walsh v. Taylor, 263 Mich.App. 618, 627 (Mich.App. 2004). The confinement must also “have
occurred without probable cause to support it.” Id., citing Peterson Novelties, Inc. v. Berkley,
259 Mich.App.1, 18 (Mich.App. 2003) (internal citations omitted).
Defendants do not argue that Mr. Hall was not confined, but that Defendants had
probable cause. As discussed above, there is a genuine issue of material fact as to whether
probable cause existed for the arrest, raising a question as to whether Mr. Hall’s arrest was legal.
Summary judgment on the issue of false imprisonment is improper.
G.

Loss of Consortium

“Loss of consortium is typically construed to encompass two aspects of the marital
relationship–the loss of support and the loss of society.” Thorn v. Mercy Memorial Hospital
Corporation, 761 N.W.2d 414, 424 (Mich.App. 2008). While it technically refers to the loss of
conjugal fellowship, “it is legally recognized as including loss of society, companionship,
service, and all other incidents of the marriage relationship.” Id. at 424-425.
Mrs. Hall claims loss of consortium, arguing that after Mr. Hall was arrested, he was
forced to leave the family home and contemplate divorce to ensure that the Halls’ two foster care
children were not removed from the home. Mr. and Mrs. Hall also argue that their sexual
relationship has been adversely affected by Mr. Hall’s arrest. Under Michigan law, loss of
consortium is a derivative claim, which “stands or falls on the primary claims in the complaint.”
Kohler v. North Star Steel Co., 408 F.Supp.2d. 380, 386-387 (E.D. Mich. 2005). As the Court
has found genuine issues of material fact relative to other claims in the complaint, summary
judgment is inappropriate on the loss of consortium claim.

14

H.

Gross Negligence/Governmental Immunity

The Michigan Governmental Immunity Act provides:
(1) Except as otherwise provided in this act, a governmental agency is immune
from tort liability if the governmental agency is engaged in the exercise or
discharge of a governmental function....
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused by
the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or
damage.
MICH. COMP. LAWS § 691.1407(1)-(2)(c). The Act defines gross negligence as “conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury results.” MICH.
COMP. LAWS § 691.1407(2); See also, Tarlea v. Crabtree, 263 Mich. App. 80, 82; 687 N.W.2d
333 (2004).

No liability attaches unless the Defendants’ actions were the proximate cause of

the injury. Id. Gross negligence will be found “if an objective observer watched the actor, he
could conclude reasonably, that the actor simply did not care about the safety or welfare of those
in his charge.” Tarlea, 263 Mich. App. at 90.
Under Michigan law, to be immune from liability for intentional torts, a “governmental
employee must also establish he was acting in ‘good faith’.” Odom v. Wayne County, et al., 482

15

Mich. 459, 473 (2008). “[T]here is no immunity when the governmental employee acts
maliciously or with a wanton or reckless disregard of the rights of another.” Id.

“[A] police

officer is entitled to immunity when he is acting in good faith with probable cause . . . even
though the arrest is subsequently found to be baseless.” Id. at 474.
Defendants argue that the officers were acting in good faith. There is a genuine issue of
material fact as to whether the officers were acting with probable cause or reasonable suspicion.
Taking all facts in the light most favorable to Plaintiffs, there is a genuine issue of material fact
as to whether the officers were acting in good faith. Summary judgment on the issue of
governmental immunity is improper.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 17,

filed on February 28, 2011] is GRANTED IN PART (with respect to Plaintiffs’ claims for
municipal liability, defamation, and malicious prosecution) AND DENIED IN PART (with
respect to all other claims).
IT IS FURTHER ORDERED that Defendant City of Taylor is DISMISSED.

Dated: August 19, 2011

S/Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on
this date, August 19, 2011, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]
16