McMorris v. Charter Township of Flint Police Department
Filing
24
OPINION AND ORDER denying 13 Motion for Summary Judgment & DISMISSING CERTAIN CLAIMS. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN DAVID MCMORRIS,
Plaintiff,
Civil Action No.
14-CV-11134
vs.
Honorable Patrick J. Duggan
SERGEANT RUSSELL FRIES,
Defendant.
____________________________/
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT and DISMISSING PLAINTIFF’S
CLAIM UNDER THE MICHIGAN CONSTITUTION AND CLAIM FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
I. INTRODUCTION
This is a civil rights case brought pursuant to 42 U.S.C. § 1983. Plaintiff
John David McMorris alleges that he was arrested for carrying a concealed weapon
without probable cause by Defendant Sergeant Russell Fries of the Flint Township
Police Department in violation of his rights under the Fourth Amendment to the
United States Constitution. As a result of the arrest, Plaintiff spent approximately
two days in jail. Plaintiff also brings pendent state law claims under the Michigan
Constitution and for false arrest and intentional infliction of emotional distress.
The matter is now before the Court on Sgt. Fries’ motion for summary
judgment. Plaintiff filed a response but Sgt. Fries did not file a reply.1 Upon
review of the record and briefs, the Court concludes that oral argument would not
aid the decisional process. See E.D. Mich. LR 7.1(f)(2). For the reasons that
follow, the Court will deny Sgt. Fries’ motion. However, the Court will summarily
dismiss Plaintiff’s claim under the Michigan Constitution and his claim for
intentional infliction of emotional because he has abandoned those claims.
II. BACKGROUND
The incident leading to this lawsuit took place in the late hours of Christmas
Eve and the early hours of Christmas Day 2013. That night, Sgt. Fries was on duty
in a marked police cruiser and responding to a request to check the welfare of the
occupants of a trailer home. Fries Dep. at 17 (ECF No. 13-2). En route to the
trailer home, Sgt. Fries first observed Plaintiff, who was walking by himself in
“quite cold” temperatures near the snow-covered gravel shoulder of a road adjacent
to Flint’s Bishop International Airport. Id. at 19-20. As he drove past Plaintiff,
Sgt. Fries activated his high beam lights and “look[ed] at Plaintiff [from] head to
toe.” Id. at 42. Sgt. Fries testified in his deposition that he “did not see any
weapon on [Plaintiff]” and that “[i]n [his] opinion [Plaintiff] wasn’t armed at that
time.” Id. at 21. Although Sgt. Fries “thought it was suspicious that there’s a guy
1
However, the Court granted the parties’ request to file one supplemental brief
each, both limited to five pages in length.
2
walking out in the cold near the airport,” he did not stop Plaintiff because “[the]
welfare check took precedence.” Id. at 20.
After completing the welfare check, Sgt. Fries returned to the area in which
he earlier observed Plaintiff, intending to “give him a ride home.” Id. at 21. The
record contains audio and video footage of the events that occurred next, captured
by the camera in Sgt. Fries’ cruiser.2 As Sgt. Fries approached Plaintiff in his
cruiser, Plaintiff immediately raised his arms in the air and then turned his body so
that his right profile was facing in Sgt. Fries’ direction. As Plaintiff raised his arms
higher, the bottom of his jacket inched upward, exposing his waistline and
revealing a gun and holster attached to the right side of Plaintiff’s waist. On the
one hand, Sgt. Fries testified that he could not discern that Plaintiff was armed
until Plaintiff raised his arms in the air, causing his jacket to lift in a manner that
exposed his waistline. Fries Dep. at 23-24. On the other hand, Plaintiff testified
that his gun was fully visible that night and not covered by his jacket: “My coat
didn’t cover my weapon.” Pl. Dep. at 90-92. The video footage does not resolve
this factual dispute. Due to the distance, camera angle, and glare, it is not clear
from the footage whether, or to what extent, the gun was visible before Plaintiff
lifted his arms. In addition, the record does not contain video footage of Sgt. Fries’
2
The background facts contained in this paragraph and the next paragraph that are
not supported by a citation to the record are gleaned from the video footage.
3
drive to the welfare check earlier in the evening during which Sgt. Fries first
observed Plaintiff.
Sgt. Fries exited his cruiser and approached Plaintiff on foot. Sgt. Fries
asked Plaintiff if he had a concealed pistol license. Plaintiff responded that he did
not, but stated that he was legally carrying the gun pursuant to Michigan’s open
carry law. Sgt. Fries then told Plaintiff that his gun was not visible earlier in the
evening because his jacket was covering it. Although Plaintiff at first apologized
and told Sgt. Fries that he “did not know his coat was covering [his gun],” Plaintiff
was adamant later, while seated in Sgt. Fries’ cruiser, that his gun remained visible
over his jacket the entire evening. However, Sgt. Fries insisted that he could not
see Plaintiff’s gun until Plaintiff raised his arms in the air, exposing his waistline,
and placed Plaintiff under arrest for carrying a concealed weapon in violation of
Mich. Comp. Laws § 750.227, which makes it unlawful to carry a concealed pistol
without a license.
Plaintiff remained in jail until the afternoon of December 26, 2013; no
charges were brought against Plaintiff at that time.
However, charges were
brought against Plaintiff for violating § 750.227 on July 28, 2014 – about seven
months after the incident and five and a half months after Plaintiff commenced this
lawsuit. See People v. McMorris, No. 14-036112 (Genesee Cnty. Cir. Ct.). The
criminal case against Plaintiff proceeded to trial. After the prosecution rested its
4
case-in-chief, Plaintiff moved for a directed verdict of acquittal pursuant to
Michigan Court Rule 6.419(A), which requires a court to direct a verdict for the
accused where “the evidence is insufficient to sustain a conviction.” The court
granted the motion because the evidence adduced at trial did not demonstrate that
Plaintiff’s gun was concealed when he was stopped by Sgt. Fries and the
prosecution failed to offer any evidence demonstrating that Plaintiff was carrying a
gun earlier in the evening. Because there was no evidence that Plaintiff possessed
a gun when Sgt. Fries observed Plaintiff en route to the welfare check, and no
evidence that the gun Plaintiff possessed later was concealed, the state court
directed a verdict in favor of Plaintiff and dismissed the criminal charges against
him.3
Plaintiff filed this lawsuit in state court in February 2014, and the case was
subsequently removed to this Court. In his original complaint, Plaintiff named
only the Charter Township of Flint as a Defendant. On July 25, 2014, Plaintiff
filed an amended complaint adding Sgt. Fries as a Defendant. Plaintiff sues Sgt.
Fries in both his individual and official capacities. On August 6, 2014, the parties
stipulated to the dismissal of the Charter Township of Flint without prejudice.
3
The state court explained its reasons for granting the motion from the bench and
issued a written order memorializing the result. The record does not contain a
copy of the transcript of the portion of the proceedings during which the judge
explained his reasoning for granting the motion. However, this Court has obtained
the transcript in audio form from the court in which the proceedings took place.
5
Sgt. Fries filed the present motion for summary judgment on August 15,
2014. Plaintiff filed a response on September 5, 2015, but Sgt. Fries did not file a
reply. On September 19, 2014, at the request of the parties, the Court stayed these
proceedings pending the outcome of the criminal case brought against Plaintiff.
On June 8, 2015, the Court lifted the stay after the parties notified the Court that
the criminal case had concluded. Shortly thereafter, the Court permitted the parties
to file supplemental briefs at their request. Plaintiff’s supplemental brief was due
by June 23, 2015, and Sgt. Fries’ supplemental brief due within fourteen days of
the date on which Plaintiff filed his brief. Inexplicably, Plaintiff has failed to file a
supplemental brief, and the time to do so has now expired. The matter is now
ready for decision.
III. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 instructs courts to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A court assessing the appropriateness of summary judgment asks “whether
the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Amway
Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
6
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505,
2512 (1986)).
IV. ANALYSIS
Although the amended complaint includes claims under the Michigan
Constitution and for intentional infliction of emotional distress, Plaintiff concedes
that those claims are not viable. See Pl. Resp. to Mot. for Summ. J. at 9, 11 (ECF
No. 18). Accordingly, the Court will summarily dismiss those claims, leaving only
Plaintiff’s constitutional claim for unlawful arrest under § 1983 and his state law
claim for false arrest.
The viability of both remaining claims hinge on the answer to one crucial
question: Did Sgt. Fries have probable cause to arrest Plaintiff for carrying a
concealed weapon in violation of Mich. Comp. Laws § 750.227? See Fridley v.
Horrighs, 291 F.3d 867, 872 (6th Cir. 2002) (“In order for a wrongful arrest claim
to succeed under § 1983, a plaintiff must prove that the police lacked probable
cause.”); Peterson Novelties, Inc. v. City of Berkley, 259 Mich. App. 1, 18, 672
N.W.2d 351, 362 (2003) (“To prevail on a claim of false arrest . . . [under
Michigan law], a plaintiff must show that the arrest was not legal, i.e., the arrest
was not based on probable cause.”). As stated by the Supreme Court, “‘probable
cause’ to justify an arrest means facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or one of reasonable
7
caution, in believing, in the circumstances shown, that the suspect has committed,
is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443
U.S. 31, 37, 99 S. Ct. 2627, 2632 (1979). “In general, the existence of probable
cause in a § 1983 action presents a jury question, unless there is only one
reasonable determination possible.” Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995).
As stated, Plaintiff was arrested for carrying a concealed pistol in violation
of Mich. Comp. Laws § 750.227. In pertinent part, that statute makes it unlawful
for a person to “carry a pistol concealed on or about his or her person . . . without a
license to carry the pistol as provided by law.” Mich. Comp. Laws § 750.227(2).
Thus, to be convicted under § 750.227(2), the prosecution must prove three
elements: (1) the defendant carried a pistol on or about his or her person, (2) the
pistol was concealed, and (3) the defendant did not have a license to carry a
concealed pistol. See People v. Davenport, 89 Mich. App. 678, 682, 282 N.W.2d
179, 181 (1979). “[A] weapon is concealed when it is not discernible by the
ordinary observation of persons coming in contact with the person carrying it,
casually observing him, as people do in the ordinary and usual associations of life.”
People v. Jones, 12 Mich. App. 293, 296, 162 N.W.2d 847, 849 (1968). “The issue
of concealment depends upon the particular circumstances present in each case and
8
whether the weapon was concealed from ordinary observation is a question for the
trier of fact to determine.” Id. at 296-97, 162 N.W.2d at 849.
A factual dispute precludes determination as a matter of law whether Sgt.
Fries had probable cause to arrest Plaintiff for carrying a concealed pistol. Sgt.
Fries observed Plaintiff on two occasions on the evening in question. During his
first encounter with Plaintiff en route to the welfare check, Sgt. Fries testified that,
“in [his] opinion,” Plaintiff “wasn’t armed at that time.”
Fries. Dep. at 21.
Therefore, Sgt. Fries did not have probable cause to arrest Plaintiff for carrying a
concealed weapon at that time.
Sgt. Fries observed Plaintiff again later in the evening after completing the
welfare check. According to Sgt. Fries’ version of the events, Plaintiff’s gun was
not initially visible because it was covered by his jacket, and did not become
visible until Plaintiff lifted his arms, thereby exposing his waistline and revealing
his gun and holster.
If the factfinder credits Sgt. Fries’ testimony, it could
reasonably conclude that Sgt. Fries had probable cause to arrest Plaintiff for
carrying a concealed weapon.
Cf. People v. Dorsey, No. 235907, 2003 WL
231314, at *3 (Mich. Ct. App. Jan. 31, 2003) (gun was concealed where it “only
became visible after the police officer moved defendant’s sweater”).4 However,
4
However, the Court notes that even if a reasonable factfinder credited Sgt. Fries’
testimony, it could still conclude that Sgt. Fries did not have probable cause to
arrest Plaintiff if the factfinder believes that the interaction between Sgt. Fries and
9
Plaintiff testified that his jacket did not cover his gun and that his gun remained
visible during the encounter. If the factfinder credits Plaintiff’s testimony, it could
reasonably conclude that Sgt. Fries lacked probable cause to arrest Plaintiff for
carrying a concealed weapon. As stated, the video footage does not resolve the
factual dispute between Sgt. Fries and Plaintiff whether the gun was visible before
Plaintiff lifted his arms. Therefore, the Court cannot determine as a matter of law
whether Sgt. Fries had probable cause to arrest Plaintiff for carrying a concealed
pistol, as the answer depends on whose version of the events is credited by the
factfinder.
Sgt. Fries argues that he had probable cause to arrest Plaintiff for carrying a
concealed pistol because Plaintiff “admitted that he did not know that his coat was
covering his gun and apologized for the same.” Def. Mot. for Summ. J. at 9 (ECF
No. 13). Sgt. Fries is referring to a statement that Plaintiff made early-on in their
encounter, which was captured by the video footage of the incident. Sgt. Fries told
Plaintiff that his gun was not visible when he observed Plaintiff earlier, en route to
Plaintiff at the moment Sgt. Fries failed to observe Plaintiff’s gun was not similar
to a “casual[] observ[ation]” made “in the ordinary and usual associations of life.”
Jones, 12 Mich. App. at 296, 162 N.W.2d at 849. See, e.g., People v. Kincade, 61
Mich. App. 498, 504-05, 233 N.W.2d 54, 58 (1975) (element of concealment not
established where the interaction during which the officer was unable to observe a
gun in plain view was not similar to casual observation made in the ordinary
association of life inasmuch as the interaction occurred suddenly, in the dark, and
lasted only an instant). At the time Sgt. Fries failed to observe Plaintiff with a gun,
it was dark outside and Sgt. Fries was still in his cruiser, some distance away from
where Plaintiff was standing.
10
the welfare check; Plaintiff responded that he “did not know the front of his coat
was covering it, sir, I’m very sorry.” Sgt. Fries contends that, in light of this
purported admission and apology, Plaintiff “cannot now dispute Sgt. Fries’
testimony that Plaintiff’s coat was covering the gun, and that Sgt. Fries could not
observe the weapon until Plaintiff raised his hands.” Id.
In asserting this argument, Sgt. Fries relies on just one statement made by
Plaintiff during the encounter and overlooks the totality of his pre-arrest dialogue
with Plaintiff. Plaintiff was adamant throughout his encounter with Sgt. Fries that
his gun was not concealed. In particular, before Plaintiff was placed under arrest,
Sgt. Fries insisted that Plaintiff’s gun was covered by his jacket, but Plaintiff
repeatedly rebuffed that assertion, stating multiple times that his gun always
remained visible.
Although a reasonable factfinder could interpret Plaintiff’s
earlier statement that he “did not know” that his jacket was covering his gun as
inconsistent with his subsequent statements that his jacket was not covering his
gun, and credit the earlier statement over the later statements, construing the facts
in the light most favorable to Plaintiff, as the Court must at the summary judgment
stage, the Court believes that a reasonable factfinder could view Plaintiff’s
statements as consistent and accept Plaintiff’s position that he did not admit that
his gun may have been concealed. Plaintiff’s demeanor throughout his encounter
with Sgt. Fries was extremely polite, agreeable, and cooperative, and a reasonable
11
factfinder could conclude, based on his demeanor throughout the encounter, that
his earlier statement that he “did not know” that his jacket was covering his gun
stemmed from Plaintiff’s desire to cooperate and is not a concession that Plaintiff
believed that his jacket may have been covering his gun. In sum, considering the
totality of the pre-arrest dialogue between Plaintiff and Sgt. Fries in the light most
favorable to Plaintiff, the Court concludes that a reasonable factfinder could find
that Plaintiff’s statements during the encounter are not inconsistent with his
position that the gun remained visible and do not preclude Plaintiff from arguing
that the gun was visible over his jacket.
Additionally, Sgt. Fries points out that Plaintiff was carrying the gun in a
“close quarters concealment holster,” a holster that Sgt. Fries asserts is meant to
conceal a gun. However, Sgt. Fries has not offered evidence showing that a gun
cannot be carried openly in the type of holster used by Plaintiff. Therefore,
Plaintiff’s use of the holster does not support Sgt. Fries’ position that he had
probable cause to believe that Plaintiff’s gun was concealed.
Finally, Sgt. Fries argues that he is entitled to qualified immunity with
regard to Plaintiff’s § 1983 claim for unlawful arrest and governmental immunity
with regard to Plaintiff’s state law claim for false arrest. “Qualified immunity
shields government officials from civil damages liability unless the official
violated a statutory or constitutional right that was clearly established at the time of
12
the challenged conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). To
resolve claims of qualified immunity, the Court applies a two-step inquiry:
First, a court must decide whether the facts that a plaintiff has alleged
(see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56)
make out a violation of a constitutional right. Second, . . . the court
must decide whether the right at issue was “clearly established” at the
time of defendant’s alleged misconduct.
Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S. Ct. 808, 815-16 (2009)
(citation omitted). Thus, to defeat Sgt. Fries’ assertion of qualified immunity,
“Plaintiff must show both that, viewing the evidence in the light most favorable to
[him], a constitutional right was violated and that the right was clearly established
at the time of the violation.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th
Cir. 2009).
Construing the evidence in the light most favorable to Plaintiff, Plaintiff has
demonstrated a violation of his Fourth Amendment right to be free from unlawful
arrest. In viewing the facts in the light most favorable to Plaintiff, the Court credits
Plaintiff’s testimony that his gun was carried in plain view and not covered by his
jacket. Accepting Plaintiff’s version of the facts, Sgt. Fries lacked probable cause
to arrest Plaintiff for carrying a concealed pistol under Mich. Comp. Laws §
750.227(2). Therefore, Plaintiff has satisfied the first element under the Pearson
framework.
13
Plaintiff has also satisfied the second element of the Pearson framework,
requiring that the right allegedly violated be clearly established at the time of the
alleged violation. A right is clearly established if “[t]he contours of the right
[were] sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 3039 (1987). Long before the incident here occurred in December 2013,
“the law was clearly established that, absent probable cause to believe that an
offense had been committed, was being committed, or was about to be committed,
officers may not arrest an individual.” Estate of Dietrich v. Burrows, 167 F.3d
1007, 1012 (6th Cir. 1990). Therefore, Plaintiff has satisfied the second element
under the Pearson framework.
Sgt. Fries is also not entitled to governmental immunity with regard to
Plaintiff’s state law false arrest claim.
A government official accused of an
intentional tort such as false arrest is entitled to governmental immunity under
Michigan law if he or she demonstrates the following:
(a) The acts were undertaken during the course of employment and
the employee was acting, or reasonably believed that he was acting,
within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken
with malice, and
(c) the acts were discretionary, as opposed to ministerial.
14
Odom v. Wayne Cnty., 482 Mich. 459, 480, 760 N.W.2d 217, 228 (2008) (citing
Mich. Comp. Laws § 691.1407). Regarding the first element, “the intentional use
or misuse of a badge of governmental authority for a purpose unauthorized by law
is not the exercise of a governmental function.” Smith v. Dep’t of Public Health,
428 Mich. 540, 611, 410 N.W.2d 749, 780 (1987). And regarding the second
element:
Good faith is the absence of malice, or wanton or reckless disregard
for the rights of others. An officer’s conduct is wanton misconduct
when his actions show indifference to whether harm will occur. Good
faith is subjective. Defendant’s honest belief he is acting in good faith
is protection from liability.
Broadnax v. Double, No. 12-CV-12744, 2013 WL 5353243 (E.D. Mich. Sept. 24,
2013) (citations omitted). Accepting Plaintiff’s version of the facts, Sgt. Fries
arrested Plaintiff without probable cause to believe that Plaintiff had committed the
offense for which he was arrested. Taking the facts in the light most favorable to
Plaintiff, a reasonable factfinder could infer bad faith from an arrest made without
probable cause, defeating the first and second elements of the Odom framework.
Therefore, because a fact issue remains regarding to the first and second elements
of the Odom framework, Sgt. Fries is not entitled to governmental immunity with
regard to Plaintiff’s false arrest claim at this juncture.
15
V. CONCLUSION
This case presents a genuine issue of material fact precluding summary
judgment. Plaintiff says that he carried his gun in plain view; Sgt. Fries says that
Plaintiff’s gun was concealed. The available video footage does not resolve the
dispute. Accordingly, Sgt. Fries’ motion for summary judgment is DENIED.
However, Plaintiff’s state law claims under the Michigan Constitution and for
intentional infliction of emotional distress are DISMISSED.
This case will
proceed on Plaintiff § 1983 claim for unlawful arrest and his state law claim for
false arrest.
SO ORDERED.
Date: June 25, 2015
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Craig L. McAra, Esq.
G. Gus Morris, Esq.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?