A.B. et al v. Livonia, City of, et al
Filing
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COMPLAINT filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645-3173199 - Fee: $ 350. County of 1st Plaintiff: Wayne - County Where Action Arose: Wayne - County of 1st Defendant: Wayne. [Previously dismissed case: No] [Possible companion case(s): None] (Korobkin, Daniel)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
A.B., a minor,
by his next friend TINA BARBEE,
Plaintiff,
Case No.
vs.
Hon.
CITY OF LIVONIA, a municipal corporation;
MARTHA LANCASTER, a Livonia police
officer, in her individual capacity; and
JOHN DOE, a Livonia police officer, in his
individual capacity,
Demand for Jury Trial
Defendants.
/
Daniel S. Korobkin (P72842)
Michael J. Steinberg (P43085)
Kary L. Moss (P49759)
American Civil Liberties Union Fund
of Michigan
2966 Woodward Avenue
Detroit, Michigan 48201
(313) 578-6824
dkorobkin@aclumich.org
msteinberg@aclumich.org
/
COMPLAINT
Plaintiff A.B., by his mother and next friend, Tina Barbee, brings this complaint for
damages and other relief against Defendants City of Livonia, Martha Lancaster, and John Doe
for the reasons that follow.
INTRODUCTION
1.
This case is about the fundamental right to be free from unreasonable searches and
seizures under the Fourth Amendment.
2.
A series of federal and state court decisions over the past decade has firmly
established that the Fourth Amendment’s warrant requirement applies to breathalyzer tests
(sometimes referred to as “preliminary breath tests” or “PBTs”) administered to non-motorist
minors suspected of having consumed alcohol. A breathalyzer is a search within the meaning of
the Fourth Amendment. If a suspect does not consent to a search, the police must get a warrant.
The police cannot force a non-motorist minor to blow into a breathalyzer machine simply
because someone thinks the minor has been drinking.
3.
Unfortunately, some law enforcement agencies and officials continue to disregard
this basic Fourth Amendment protection, despite clear guidance from the courts. This case is but
one example of a young person who was subjected to a warrantless breathalyzer test in violation
of the United States Constitution.
4.
A.B., a 13-year-old middle schooler with no history of alcohol abuse or disciplinary
problems, was forced to take a breathalyzer test by the Livonia police based on an unfounded
accusation that he had been drinking during a school field trip to Rotary Park. He was subjected
to this degrading procedure in front of his friends, classmates, and teachers. A.B. had not been
drinking, and the breathalyzer test results proved it. But he should not have been subjected to the
procedure in the first place. A.B. did not consent to the breathalyzer search, and the police did
not get a warrant. No exception to the warrant requirement applied.
5.
The Fourth Amendment’s warrant requirement is an essential component of civil
liberty. Subject to only a few specifically established and well-delineated exceptions, it requires
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that the probable cause required for a search be determined by a neutral and detached magistrate,
not the police officer engaged in the often competitive enterprise of ferreting out crime.
6.
It is to vindicate this important Fourth Amendment principle that Plaintiff brings this
lawsuit.
JURISDICTION AND VENUE
7.
This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 because this is a civil
action arising under the Constitution and laws of the United States seeking redress for the
deprivation, under color of state law, of a right secured by the Constitution of the United States.
8.
Venue is proper under 28 U.S.C. § 1391(b) because the events giving rise to
Plaintiff’s claim occurred within the Eastern District of Michigan.
PARTIES
9.
Plaintiff A.B. is a thirteen-year-old minor who resides in Wayne County. He brings
this case by his adult mother and next friend, Tina Barbee.
10. Defendant City of Livonia is a municipal corporation located in Wayne County and
organized under the laws of the State of Michigan. The Livonia Police Department is a division
or department of the City of Livonia.
11. Defendant Martha Lancaster is, or was at all times relevant to this complaint, a
police officer employed by the City of Livonia.
12. Defendant John Doe is, or was at all times relevant to this complaint, a police officer
employed by the City of Livonia. His true identity is currently unknown to Plaintiff, and
Plaintiff intends to amend this complaint to name him as a defendant as soon as his identity is
disclosed.
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FACTS
13. In June 2011, Plaintiff A.B. was a 13-year-old eighth-grader at Discovery Middle
School in Canton, Michigan.
14. A.B. gets good grades, plays sports, and has no disciplinary record or history of
alcohol abuse.
15. On Wednesday, June 15, 2011, A.B. went to Rotary Park in Livonia, Michigan, as
part of a school-sponsored picnic and outing to celebrate his class graduating from middle
school.
16. Rotary Park contains hiking trails in the woods, baseball diamonds, picnic areas, and
other amenities.
17. A.B. and four of his friends, also eighth-graders at Discovery, decided to take a walk
in the woods before lunch.
18. A.B. and his friends walked along the hiking trails for about 30 minutes.
19. When A.B. and his friends exited the woods, they were approached by two teachers
who told them that the assistant principal wanted to speak with them and they should wait at a
picnic table for him to arrive.
20. The assistant principal arrived approximately five minutes later.
21. The assistant principal told A.B. and his friends that he had followed them into the
woods. The assistant principal was carrying an empty liquor bottle and accused A.B. and his
friends of drinking from the bottle in the woods.
22. A.B. and his friends had never seen the bottle before and had not been drinking.
23. A.B. and his friends told the assistant principal that the bottle did not belong to them
and they had not been drinking.
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24. The assistant principal was evidently dissatisfied with their response because he
called the police.
25. Upon information and belief, the assistant principal did not tell the police that he had
personally observed anyone drinking alcohol. He told the police that he had found the bottle in
in a wooded area where A.B. and his friends had been congregating.
26. Defendant Martha Lancaster, a Livonia police officer, was the first officer to arrive
on the scene.
27. Officer Lancaster questioned A.B. and his friends about the empty liquor bottle.
28. Officer Lancaster demanded to know whom the bottle belonged to and who was
drinking.
29. A.B. and his friends told Officer Lancaster that the bottle was not theirs and they had
not been drinking.
30. Officer Lancaster told A.B. and his friends that they were lying.
31. Officer Lancaster told A.B. and his friends that another police officer was going to
bring a breathalyzer machine to test each of them for alcohol content.
32. Officer Lancaster called for Officer John Doe, another Livonia police officer, to
report to the scene with a breathalyzer machine.
33. Officer Doe arrived with the breathalyzer machine after a short wait.
34. Officer Doe instructed A.B. and his friends to place their mouths on the opening to
the breathalyzer machine, blow into the machine for about ten seconds, and keep blowing even if
they felt resistance.
35. Officer Doe warned A.B. and his friends that if they did not blow into the machine
correctly they would have to do it again.
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36. A.B. and his friends complied with Officer Doe’s instructions and blew into the
breathalyzer machine.
37. Officer Doe told A.B. he had not blown into the machine correctly and told him to
do it again.
38. Many of A.B.’s friends, classmates, and teachers watched while A.B. and the other
students from his group were subjected to the procedure.
39. A.B. felt embarrassed and violated because he had done nothing wrong but was
being publicly shamed and forced to prove his innocence by blowing into a machine at the
insistence of the police.
40. Neither Officer Lancaster nor Officer Doe made any attempt to ask for A.B.’s
consent before administering the breathalyzer test.
41. A.B. did not consent to the breathalyzer test.
42. No one called A.B.’s parents to ask for their permission to administer the
breathalyzer test to their son.
43. Neither Officer Lancaster nor Officer Doe procured a search warrant authorizing
them to administer the breathalyzer test without A.B.’s consent.
44. Other than what the assistant principal told them, neither Officer Lancaster nor
Officer Doe had any evidence that A.B. or his friends had been drinking.
45. The breathalyzer test yielded no positive results. A.B. and his friends all registered
zero alcohol content.
46. After being exonerated by the breathalyzer machine, A.B. and his friends were
permitted to re-join their classmates for the rest of the day. They had missed most of the picnic
lunch.
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47. As a result of this incident, A.B.’s name is now in at least one police database that is
shared by multiple law enforcement agencies in southeastern Michigan.
48. A.B. may face more intense scrutiny by police officers in the future because the
electronic records to which they have access indicate that he has had a police encounter in the
past.
49. If the police had responded properly to the assistant principal’s call, they would have
told him that without probable cause they could not obtain a warrant, and without a warrant they
could not administer a breathalyzer test.
50. In 2003, this Court declared unconstitutional a Bay City, Michigan ordinance that
authorized police officers to force non-motorist minors to submit to warrantless breathalyzer
tests based upon reasonable cause to believe they had consumed alcoholic liquor. See Spencer v.
Bay City, 292 F. Supp. 2d 932 (E.D. Mich. 2003).
51. Following the 2003 decision, attorneys from the American Civil Liberties Union of
Michigan (“ACLU”) wrote a letter to 425 city, village, and university attorneys, including
Livonia’s, asking that their respective police agencies adopt new policies to conform to this
Court’s ruling.
52. In 2007, this Court declared unconstitutional a Michigan statute that was nearly
identical to the Bay City ordinance. See Platte v. Thomas Twp., 504 F. Supp. 2d 227 (E.D. Mich.
2007).
53. Following the 2007 decision, several Michigan law enforcement agencies entered
into consent judgments prohibiting them from requiring non-motorist minors to submit to
warrantless breathalyzer tests.
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54. In 2009, the Michigan Court of Appeals agreed with this Court and ruled in a
unanimous published decision that the Michigan statute was unconstitutional. See People v.
Chowdhury, 285 Mich. App. 509 (2009).
55. Despite three separate court rulings, an absence of any case law to the contrary,
consent judgments involving multiple police forces, and the ACLU’s letter to municipalities all
over the state (including Livonia), Officers Lancaster and Doe subjected A.B. and four other
non-motorist minors to a breathalyzer test without their consent and without a warrant.
56. A public record entitled “Livonia Division of Police — Youth Policy and Procedure”
was recently disclosed to Plaintiff’s counsel.
57. That document states: “A peace officer, who has reasonable cause to believe a minor
has consumed alcoholic liquor, may require a minor to submit to a [breathalyzer test]. A minor
who refuses a reasonable request for a [breathalyzer test] may be issued a civil infraction.”
58. Upon information and belief, “Livonia Division of Police — Youth Policy and
Procedure” as set forth above has not been rescinded or superseded.
CAUSE OF ACTION
VIOLATIONS OF THE FOURTH AMENDMENT AND 42 U.S.C. § 1983
59. Under 42 U.S.C. § 1983, every person acting under color of state law who deprives
another person of his or her constitutional rights, or causes such a deprivation, is liable at law
and in equity.
60. At all times relevant to this complaint, Defendants acted under color of state law.
61. The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. The Fourth Amendment is incorporated against the States by the
Fourteenth Amendment to the United States Constitution.
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62. A breathalyzer test is a search within the meaning of the Fourth Amendment.
63. Searches conducted outside the judicial process, without prior approval by a judge or
magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.
64. Defendants Lancaster and Doe violated Plaintiff’s Fourth Amendment right to be
free from unreasonable searches and seizures when they subjected him to a breathalyzer test
because they did not first procure a warrant and no exception to the warrant requirement applied.
65. Defendants Lancaster and Doe violated Plaintiff’s Fourth Amendment right to be
free from unreasonable searches and seizures when they subjected him to a breathalyzer test
because they did not have probable cause to believe he had consumed alcoholic liquor.
66. Under 42 U.S.C. § 1983, municipal defendants are “persons” liable for their
unconstitutional practices, customs, and policies.
67. Defendant City of Livonia’s practice, custom, or policy allowed or authorized police
officers to administer breathalyzer tests to minors without a warrant when no exception to the
warrant requirement applied.
68. Defendant City of Livonia failed to train its officers not to administer breathalyzer
tests to minors without a warrant when no exception to the warrant requirement applied.
69. Defendant City of Livonia is liable for the deprivation of Plaintiff’s Fourth
Amendment right to be free from unreasonable searches and seizures because its practice,
custom, policy or failure to train were a moving force behind the deprivation.
RELIEF REQUESTED
Plaintiff requests that this Court:
a. assert jurisdiction over this matter;
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b. declare that Defendants violated Plaintiff’s rights under the Fourth Amendment to
the United States Constitution;
c. award Plaintiff nominal, compensatory, and/or punitive damages;
d. order that Plaintiff’s name be expunged from all law enforcement records,
including electronic records, created as a result of the events described in this
complaint;
e. award Plaintiff costs and a reasonable attorney’s fee under 42 U.S.C. § 1988; and
f. grant any other relief the Court deems appropriate.
Respectfully submitted,
/s/ Daniel S. Korobkin
Daniel S. Korobkin (P72842)
Michael J. Steinberg (P43085)
Kary L. Moss (P49759)
American Civil Liberties Union Fund
of Michigan
2966 Woodward Avenue
Detroit, Michigan 48201
(313) 578-6824
dkorobkin@aclumich.org
msteinberg@aclumich.org
Dated: September 20, 2011
JURY DEMAND
Plaintiff demands a trial by jury on all issues so triable.
/s/ Daniel S. Korobkin
Daniel S. Korobkin (P72842)
Michael J. Steinberg (P43085)
Kary L. Moss (P49759)
American Civil Liberties Union Fund
of Michigan
2966 Woodward Avenue
Detroit, Michigan 48201
(313) 578-6824
dkorobkin@aclumich.org
msteinberg@aclumich.org
Dated: September 20, 2011
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