Bey v. Falk

Filing 53

ORDER Denying In Part and Granting In Part Defendants' Motions for Summary Judgment 38 , 39 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER LEE-MURRAY BEY,
Plaintiff,
Case No. 14-13743
v.
HONORABLE DENISE PAGE HOOD
ADAM FALK, CANTON CHARTER
TOWNSHIP, CITY OF LIVONIA,
ANDREW McKINLEY, ERIC
EISENBEIS, and MEGAN McATEER,
Defendants.
_________________________________________/
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [#38, 39]
I.

INTRODUCTION
Plaintiff Christopher Lee-Murray Bey filed this 42 U.S.C. § 1983 action on

September 29, 2014, alleging that Defendants violated his constitutional rights when
they illegally stopped and seized him. On June 28, 2016, Defendants City of Livonia
(“Livonia”), Andrew McKinley (“McKinley”), Eric Eisenbeis (“Eisenbeis”), and
Megan McAteer (“McAteer”) filed a Motion for Summary Judgment [Dkt. No. 38],
and Defendants Charter Township of Canton (“Canton”) and Adam Falk (“Falk”)
filed a Motion for Summary Judgment. [Dkt. No. 39] Both motions have been fully
briefed. The Court held a hearing on the motions on November 9, 2016.
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For the reasons that follow, the Court denies in part and grants in part the
Motion for Summary Judgment filed by Livonia, McKinley, Eisenbeis, and McAteer
and denies in part and grants in part the Motion for Summary Judgment filed by
Canton and Falk.
II.

BACKGROUND
On March 16, 2013, sometime after midnight, 26-year old Plaintiff Christopher

Bey and his friends, 23-year old DeAires Freeman and 19-year old Devon Burt drove
to a Meijer Department Store in the City of Livonia to buy a portable space heater.
(Dkt. No. 46, Ex. A at 6, 25-26, 29; Dkt. No. 46, Ex. B at 14, 24, 31; Dkt. No. 46, Ex.
C at 19-20) The weather was cold but clear. (Dkt. No. 46, Ex. D at 50) They drove
together in Plaintiff’s newly purchased 2000 Plymouth Grand Voyager that had a
valid pink temporary license tag prominently displayed. (Dkt. No. 46, Ex. A at 38, 53)
All three men are black.
The three men went to the Meijer at I-96 and Middlebelt in Livonia but were
unable to locate a suitable heater. (Dkt. No. 46, Ex. A at 46-47) They left the store and
drove to a Walmart directly across the street, only to find that it was closed. (Dkt. No.
46, Ex. A at 49, 265-267; Dkt. No. 46, Ex. D at 15-17, 36 ) They remained in the
parking lot for a few minutes while Plaintiff used his cell phone and located another
24-hour Walmart that was open in the area. (Dkt. No. 46, Ex. B at 31-32) They then
2

drove to the Canton Walmart.
At the Canton Walmart, the three men walked into the store, got a shopping cart
and headed towards the back of the store. Freeman looked at a BB gun in the sporting
good section. (Dkt. No. 46, Ex. C at 26) Plaintiff found two portable heaters, placed
them in his cart and proceeded to check-out. (Dkt. No. 46, Ex. A at 50, 68) Plaintiff
took out his wallet, handed one credit card to the cashier and completed his purchase.
(Dkt. No. 46, Ex. A at 51-52; Dkt. No. 46, Ex. E at 4) The three men left the store and
walked backed to the Minivan. (Dkt. No. 46, Ex. A at 52) Plaintiff got in the rear
driver’s side seat, fastened his seat belt and closed the door. (Dkt. No. 46, Ex. A at 69;
Dkt. No. 46, Ex. B at 33, 35)
At least three police cars immediately surrounded the Minivan “like something
out of SWAT.” (Dkt. No. 46, Ex. A at 55-56, 184; Dkt. No. 46, Ex. F at 38-39; Dkt.
No. 46, Ex. C at 34-35, 66; Dkt. No. 46, Ex. B at 34-35) Falk, a white uniformed
Canton Township police officer, approached Plaintiff and ordered him to “Get out of
the car.” (Dkt. No. 46, Ex. A at 58, 63; Dkt. No. 46, Ex. F at 25-26, 36-37, 40; Dkt.
No. 46, Ex. G at 11) Plaintiff obeyed the command and exited the vehicle. (Id.) For
his safety and that of the officers, Plaintiff told Falk he had a handgun and pointed to
his right hip where it was holstered. (Dkt. No. 46, Ex. A at 59; Dkt. No. 46, Ex. F at
40-41, 44) Falk confiscated the weapon. Falk told Plaintiff “we were investigating
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a possible retail fraud or credit card fraud that had happened in the store.” (Dkt. No.
46, Ex. F at 45) Plaintiff produced a sales receipt and Falk “was satisfied at that point
that they had not committed retail fraud—or credit card fraud[.]” (Dkt. No. 46, Ex. A
at 61, 71-72; Dkt. No. 46, Ex. F at 46) Plaintiff handed Falk his Concealed Weapons
Permit License (“CPL”). (Dkt. No. 46, Ex. A at 188; Dkt. No. 46, Ex. F at 49) Falk
had Canton dispatch run the CPL and discovered it had expired. He then arrested
Plaintiff for unlawful carrying of a concealed weapon. (Dkt. No. 46, Ex. A at 70-71,
82, 109; Dkt. No. 46, Ex. F at 47)
During the foregoing events, Plaintiff, Freeman, and Burt had been under
surveillance by Livonia Police Department’s plain clothes Special Operations Unit
(“SOU”). (Dkt. No. 46, Ex. H at 46; Dkt. No. 46, Ex. D at 8-9) The four-member
SOU consisted of McKinley, Eisenbeis, McAteer (collectively, the “SOU officers”)
and Officer Richard Ostrowski, all of whom are white. (Dkt. No. 46, Ex. I; Dkt. No.
46, Ex. H at 7; Dkt. No. 46, Ex. J at 16) McKinley was the Officer in Charge. (Dkt.
No. 46, Ex. J at 7-8) Surveillance began when McKinley saw a “beat up” minivan
travelling southbound on Middlebelt Road in Livonia. (Dkt. No. 46, Ex. J at 17, 51)
The vehicle “wasn’t speeding or driving in a manner that would raise any suspicion.”
(Dkt. No. 46, Ex. J at 17) Upon seeing the minivan, McKinley made a U-turn and
began to follow based on a “hunch.” (Dkt. No. 46, Ex. J at 54)
4

McKinley noticed the minivan had a temporary license plate (Dkt. No. 46, Ex.
D at 9) and watched the vehicle “occupied by three black males” turn into the Livonia
Meijer parking lot. (Dkt. No. 46, Ex. E at 3; Dkt. No. 46, Ex. J at 17, 52-53) There
was nothing unusual about where or how the minivan parked. (Dkt. No. 46, Ex. J at
20) SOU watched the three men enter the store. (Dkt. No. 46, Ex. E at 3)
McKinley purportedly called Livonia dispatch, who ran the temporary plate
through the Law Enforcement Information Network (“LEIN”) but was not “able to
verify it.” (Dkt. No. 46, Ex. F at 55; Dkt. No. 46, Ex. J at 18) The officers
acknowledge that LEIN was not reliable for recent vehicle transactions because it may
take days before a vehicle is entered into the LEIN system. (Dkt. No. 46, Ex. J at 54;
Dkt. No. 46, Ex. H at 44-45; Dkt. No. 46, Ex. D at 57, 63) McKinley decided not to
stop the minivan because “they hadn’t done anything wrong. I mean we were just
watching them” just in case “something else should happen to occur.” (Dkt. No. 46,
Ex. J at 18)
The SOU left the Meijer lot for a short period to attend to “something else
going on at the city at the time.” (Dkt. No. 46, Ex. J at 17, 21) When they returned,
the minivan was still parked in the well-lit lot and surveillance reestablished. (Dkt.
No. 46, Ex. J at 21-22) The officers had no information that the three men had
engaged in any unlawful conduct inside the store. (Dkt. No. 46, Ex. J at 21-22, 25)
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The officers next saw Plaintiff and his friends drive from the Meijer lot to a Walmart
directly across the street, but that Walmart was closed. (Dkt. No. 46, Ex. J at 23) The
minivan remained in the lot for a few minutes before: (a) heading west on I-96 to
northbound I-275, (b) exiting at Six Mile Road (the first exit), (c) getting back on
southbound I-275, (d) exiting at Ford Road, and (e) parking in the Canton Walmart
parking lot. (Dkt. No. 46, Ex. J at 23; Dkt. No. 46, Ex. D at 22, 36-37; Dkt. No. 46,
Ex. E at 3)1 The SOU officers followed the minivan in a caravan of four unmarked
vehicles. (Dkt. No. 38, Ex. I) McKinley ordered McAteer to go into the store “to keep
walking surveillance on the subjects.” (Dkt. No. 46, Ex. E at 4)
McAteer used her cell phone to relay what she saw to McKinley. (Dkt. No. 46,
Ex. H at 27; Dkt. No. 46, Ex. J at 33-34, 37-38) She noticed one subject in “the
hunting section inquiring about guns.” (Dkt. No. 46, Ex. H at 20-21, 29-31; Dkt. No.
46, Ex. D at 24; Dkt. No. 46, Ex. J at 29-30) She saw the three men go to the
electronics department where “nothing in particular stands out.” (Dkt. No. 46, Ex. H
at 22) McAteer saw the subjects place items in their shopping cart. (Dkt. No. 46, Ex.

1

Eisenbeis had no explanation for why his written report stated that the minivan was
“making turns for no reason.” (Dkt. No. 46, Ex. E at pg 3.) He claimed that when Plaintiff
missed an exit and immediately returned to the freeway, it was a “cleaning move” designed to
shake a tailing police vehicle. (Dkt. No. 46, Ex. D at 37-38.) Eisenbeis admitted that the minivan
did not drive through any residential neighborhoods. (Dkt. No. 46, Ex. D at 31.) It is undisputed
that the minivan did not dim it lights, drive at an excessive rate of speed or attempt to conceal its
presence.
6

H at 23) She noticed nothing unusual as they made their way to the cashier. (Dkt. No.
46, Ex. H at 24-25) McAteer was watching for a “push-out.” (Dkt. No. 46, Ex. H at
31) McKinley explained that a “push-out” is when a subject fills a shopping cart with
merchandise and runs it past the cashier and out the door. (Dkt. No. 46, Ex. H at
26-27, 31; Dkt. No. 46, Ex. J at 57, 64; Dkt. No. 46, Ex. F at 26-27, 36) There was
no push-out. (Dkt. No. 46, Ex. J at 64)
At the checkout register, McAteer saw one of the “subjects” “flipping through
some cards to, you know, pick a card.” (Dkt. No. 46, Ex. H at 26, 31-32, 34-37; Dkt.
No. 46, Ex. D at 25; Dkt. No. 46, Ex. J at 38) She reported that one of the young men
selected a single card from others, handed it to the cashier and paid for the
merchandise without incident. (Dkt. No. 46, Ex. H at 26, 31-32, 34-37, 39; Dkt. No.
46, Ex. D at 25; Dkt. No. 46, Ex. J at 38; Dkt. No. 46, Ex. E at 4) McAteer saw no
evidence of any crime. (Dkt. No. 46, Ex. H at 31, 34) McKinley also knew that the
three young black men had “absolutely not” committed a crime in Livonia or Canton.
(Dkt. No. 46, Ex. J at 46-47)
McKinley had the Canton police stop the three young men “to make contact and
identify these people.” (Dkt. No. 46, Ex. J at 42) McKinley explained his intent:
“Well, we could get identification. That was our first intent, to get these people
identified. You know, maybe they’re part of a crew. This could be intelligence that we
7

could use later through identification. Maybe they were involved in something in
another city and, you know, information sharing.” (Dkt. No. 46, Ex. J at 43, 45)2
McKinley explained that the secondary purpose for the stop was to get an
“explanation” why they were shopping. (Dkt. No. 46, Ex. J at 44)3
Prior to or upon arriving at the Canton Walmart, McKinley phoned a friend who
worked for the Canton Police Department “and gave them an overview of what we
had in Livonia and how it came to Canton, you know. So they would have a history

2

McKinley testified:

Q.
A.
Q.
A.

Okay. You mentioned getting information about a database or sharing information
that you may get from the stop.
Yes.
Explain that to me. I don’t do police work and I’m not in your profession. Explain
that to me.
Well, let’s say you have a contractor come to your house and he’s going to do
some kitchen work. You would share it with other friends. I put that in police
work. This might be a retail fraud crew. This might be a credit card fraud crew
which is rampant right now and by identifying these people, they could be—we
could do information sharing through different departments and that might shore
up if, in fact, these guys are involved in something of that nature, could shore up a
case in Canton, in Redford, Farmington Hills or it could be nothing. But you
know, sharing that information could be useful and productive, you know, in the
law enforcement realm.

(Dkt. No. 46, Ex. J at 45.)
3

McKinley explained:

You know, maybe just where are they coming from, where they’re going, are they
shopping, what are they doing to kind of maybe paint us a picture if this is
something we should be concerned with or if it’s nothing and we’ll move on,
having just a conversation, conducting a roadside investigation.
Id. at 44.
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of what occurred.” (Dkt. No. 46, Ex. J at 33) While en route to the Canton store Falk
was “advised [Livonia police] were following three black males inside the Canton
store that they had been watching at one of their Livonia Walmart stores” and were
“shopping around.” (Dkt. No. 38, Ex. K at 4; Dkt. No. 39, Ex. G at 11;4 Dkt. No. 46,
Ex. D at 29; Dkt. No. 38, Ex. I) Upon meeting the SOU officers at the Canton
Walmart, Falk was given a Livonia prep radio “so [he] can kind of hear what’s going
on through me—through Megan [McAteer], through me and then through the police
radio.” (Dkt. No. 46, Ex. J at 32; Dkt. No. 46, Ex. F at 13, 33-34)
Falk was completely reliant on his “law enforcement intuition” and the little
information received from the SOU. (Dkt. No. 46, Ex. F at 22, 58, 61) Falk assumed
that “[t]here’s a reason why they’re following these subjects around at this time of
night, they’re probably doing retail fraud.” (Dkt. No. 46, Ex. F at 22, 32, 41) Falk had
no information that Plaintiff and his friends and done anything illegal. (Dkt. No. 46,
Ex. F at 34-36) He simply “assumed” that “there’s a possibility of credit card fraud.”
(Dkt. No. 46, Ex. F at 36)
Three marked Canton police cars surrounded the minivan in the parking lot,
4

This conflicts with Falk’s deposition testimony that he first learned that Plaintiff and his
friends were black when he was given the prep-radio. (Dkt. No. 46, Ex. G at 66) The audio of
radio contact between McKinley and Canton dispatch – and between Canton dispatch and Falk)
includes no reference to the race of the van occupants. (Dkt. No. 46, Ex. F) In any event, Falk
was aware that Plaintiff and his friends no later than when he arrived at the Canton Walmart and
was given a police radio.
9

with the four unmarked vehicles staged by the SOU officers nearby. This was not a
traffic stop. (Dkt. No. 46, Ex. F at 63, 77.) The three young men were not free to
leave. (Id.) Falk immediately ordered Plaintiff out of the vehicle. (Dkt. No. 46, Ex G
at 40) Plaintiff obediently complied. He exited the vehicle and told Falk that he was
armed and gave the officer his CPL. Falk had Canton run the CPL and discovered that
it was expired. (Dkt. No. 38, Ex. I) Plaintiff was arrested and placed in the backseat
of Falk’s cruiser – but no seatbelt was utilized for Plaintiff. (Dkt. No. 38, Ex. K at 5)
On the ride to the Canton station, Plaintiff struck his head and began seeing stars.
(Dkt. No. 38, Ex. K at 5)
Plaintiff was charged in Wayne County Circuit Court with a felony of carrying
a concealed weapon. (Dkt. No. 46, Ex. K) Plaintiff filed a motion to suppress because
the seizure was unreasonable and violated his Fourth Amendment rights. At the
suppression hearing, Falk was unable to identify any suspicious activity to justify the
stop. (Dkt. No. 46, Ex. G at 12-16) Falk testified that Plaintiff engaged in suspicious
activity at the Livonia Walmart by walking with a shopping cart, looking at items but
not buying anything. (Id. at 14-15.) Falk testified that while in Canton “I did not have
any suspicious activity.” (Id. at 17.) At that point the circuit court judge stated:
THE COURT: I’m thinking we’re in Russia or something. I’m not sure
what’s going on here. I don’t know what’s going on here. I don’t even
know why you have any more questions. This is a no-brainer. The Court
is going to suppress the evidence.
10

The Court would find that there was absolutely no reason in the
world to stop these people. In other words, I was waiting for you to say
that they left the store without paying or something. I don’t know what
they did. You said, Livonia said they didn’t do anything illegal. That
they were acting suspicious. I mean I must have committed a hundred
of those suspicious - - I go in stores all the time and push stuff around
and leave a buggy with stuff in it. I’ve even left perishable items in the
buggy. That’s probably a crime. Didn’t do anything wrong.
I am shocked - - with all due respect, Officer - - that you actually
stopped these - - this person, because of some suspicious activity. If they
paid for the items in the buggy and then walked out, why would you
question them? That made no sense to me. And I’m not here to ask you
a question. I’m here - - based on the testimony that I’ve heard there was
absolutely no reason to stop them, other than curiosity to see if they
maybe did something wrong or if they had some - - excuse me - - if they
had some contraband or a firearm on them. Other than that, there was no
reason to stop them. There was no reason to question them, especially
this individual.
I don’t know if - - I was waiting for the smoking gun. There’s
nothing. So there was no reason to question this individual or stop him,
and the Court’s going to suppress the evidence.
Id. at 18-19. The Wayne County Circuit Court dismissed that case, with prejudice.
(Dkt. No. 46, Exs. L and M.) The prosecutor did not appeal.
III.

APPLICABLE LAW

A.

Rule 56
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall 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.
11

P. 56(a). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
court must look to the substantive law to identify which facts are material. Anderson,
477 U.S. at 248.
B.

Qualified Immunity
As recently stated by the Supreme Court:
12

The doctrine of qualified immunity shields officials from civil liability
so long as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known. A clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what he is doing
violates that right. We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional
question beyond debate. Put simply, qualified immunity protects all
but the plainly incompetent or those who knowingly violate the law.
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and quotation marks omitted).
Qualified immunity is a two-step process. Saucier v. Katz, 533 U.S. 194 (2001). First,
the Court determines whether, based upon the applicable law, the facts viewed in a
light most favorable to the plaintiff show that a constitutional violation has occurred.
Second, the Court considers whether the violation involved a clearly established
constitutional right of which a reasonable person would have known. Saucier v. Katz,
supra.; Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005). Only if the undisputed facts,
or the evidence viewed in a light most favorable to the plaintiff fail to establish a
prima facie violation of clear constitutional law can this court find that the Defendants
are entitled to qualified immunity. Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
Once a government official has raised the defense of qualified immunity, the
plaintiff “bears the ultimate burden of proof to show that the individual officers are
not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468 F. App'x 491,
494 (6th Cir. 2012) (citation omitted). A plaintiff must also establish that each
13

individual defendant was “personally involved” in the specific constitutional violation.
See Salehphour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998); Bennett
v. Schroeder, 99 F. App'x 707, 712-13 (6th Cir. 2004) (unpublished) (“It is wellsettled that to state a cognizable Section 1983 claim, the plaintiff must allege some
personal involvement by the each of the named defendants”).
IV.

ANALYSIS
Plaintiff alleges that Defendants violated: (1) his Fourth Amendment rights

when they seized him without legal justification; and (2) his Fourteenth Amendment
equal protection rights because he was targeted, scrutinized, and stopped because of
his race. Defendants assert that they had reasonable suspicion to stop Plaintiff and
that race was not a factor in their decision to follow or seize Plaintiff.
Defendants devote some of their argument to the issue of probable cause for
arresting Plaintiff for carrying a concealed weapon. Those arguments ignore that
Plaintiff does not challenge whether there was probable cause for the arrest; rather,
Plaintiff challenges whether there was a legal basis for the stop and seizure in the first
place. As those arguments are irrelevant, the Court does not analyze them.
A.

Fourth Amendment Claims
Under the Fourth Amendment, law enforcement officer may initiate a

conversation with a citizen without implicating Fourth Amendment rights. United
14

States v. Mendenhall, 446 U.S. 544, 553-54 (1980). An investigatory (Terry) stop or
detention requires that the officer has reasonable suspicion that a crime may have
occurred. Terry v. Ohio, 392 U.S. 1, 30 (1968). See also United States v. Sokolow, 490
U.S. 1, 7 (1989) (citing Terry, 392 U.S. at 30) (reasonable suspicion that a crime “may
be afoot” will support a lawful investigatory stop). The officer must possess “a
particularized and objective basis for suspecting the particular person . . . of criminal
activity” based on “specific and articulable facts.” Smoak v. Hall, 460 F.3d 768, 77879 (6th Cir. 2006) (internal citations omitted).
The reasonable suspicion “must be supported by specific and articulable facts
that would warrant a man of reasonable caution in the belief that the action taken was
appropriate.” Terry, 392 U.S. at 88 (internal quotations and citation omitted).
Reasonable suspicion “requires more than a mere hunch, but is satisfied by a
likelihood of criminal activity less than probable cause, and falls considerably short
of satisfying a preponderance of the evidence standard. If an officer possesses a
particularized and objective basis for suspecting the particular person of criminal
activity based on specific and articulable facts, he may conduct a Terry stop.” Dorsey
v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (quoting Smoak, 460 F.3d at 778-79).
In U.S. v. Arvizu, 534 U.S. 266, 273-274 (2002), the Supreme Court stated:
When discussing how reviewing courts should make reasonablesuspicion determinations, we have said repeatedly that they must look at
15

the “totality of the circumstances” of each case to see whether the
detaining officer has a “particularized and objective basis” for suspecting
legal wrongdoing. See, e.g., [United States v. Cortez, 499 U.S. 411,
417–18 (1981)]. This process allows officers to draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them that
“might well elude an untrained person.” Id., at 418. See also Ornelas v.
United States, 517 U.S. 690, 699 (1996).
“The court should ask whether the agents acted reasonably under settled law in the
circumstances, not whether another reasonable, or more reasonable, interpretation of
the events can be constructed . . . after the fact.” Hunter v. Bryant, 502 U.S. 224, 228
(1991). “[T]he determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior. Illinois v. Wardlow, 528 U.S. 119,
125 (2000)(citing U.S. v. Cortez, 449 U.S. 411, 418 (1981)).
1.

SOU Officers

This case turns on one’s viewpoint. All parties agree that the issue is whether
there was probable cause or reasonable suspicion to make the traffic stop. Plaintiff
argues that he did not, at any point, engage in any criminal activity prior to being
stopped by Falk. As discussed below, the facts and the acknowledgments and
admissions of the SOU officers support that finding.
There is one thing that could have justified a traffic stop, but it was a civil
infraction and the evidence is uncontroverted that it was not a basis for stopping
Plaintiff’s minivan. It is undisputed that Plaintiff’s minivan had a temporary plate on
16

it because he had purchased the vehicle only days earlier. Police may effect a traffic
stop if they have probable cause to believe a person has committed a civil infraction
or reasonable suspicion of criminal activity. United States v. Lyons, 687 F.3d 754, 763
(6th Cir. 2012). M.C.L. 257.225 requires a motor vehicle to be properly registered
and plated before it may be driven lawfully.
The testimony of McKinley is that he caused the plates to be run through LEIN
and the result was “no record.” Defendants contend that, from the time when they
learned the minivan had a “no record” result on the temporary plate, they had probable
cause to believe a violation of M.C.L. 257.225 had occurred. But, according to
McKinley, Plaintiff’s minivan was not stopped in Livonia because “they hadn’t done
anything wrong,” (Dkt. No. 38, Ex. E at 18) and Defendants have offered no evidence
(other than McKinley’s claim) that the temporary plate was run through LEIN and that
a “no report” result was obtained. For that reasons and because the stop of Plaintiff’s
minivan did not occur until after an extended period of time passed and the minivan’s
occupants had stopped and shopped at a Meijer in Livonia, stopped at a closed
Walmart across the street from Meijer, and driven to and shopped at a Walmart in
Canton, a reasonable fact finder could determine that the purported “no report” result
was nothing more than a made up reason for a stop.
Although Defendants argue they could have stopped the minivan at any time
17

for this suspected civil infraction, they never effectuated a stop on that basis. Instead,
Defendants observed all of the following events, and Defendants maintain that their
experience and training led them to the conclusion that criminal activity may be afoot.
A.

There had been a rash of electronics and cell-phone store break-ins in
Livonia in the time preceding March 2014, which was a reason (or one
of the reasons) for the SOU unit. (Dkt. No. 38, PgID 286, Ex. E at 52)

B.

Criminals utilize vehicles with stolen or inaccurate plates to avoid
identification and a “no record” vehicle, especially an older model such
as Plaintiff’s minivan, is suspicious. (Dkt. No. 38, Ex. E at 53-54)

C.

Stores are understaffed late at night, making it an opportune time for
criminals to go from store to store checking out security and situations
to exploit. (Dkt. No. 38, Ex. G at 33)

D.

Plaintiff’s minivan was parked in the lot of the Livonia Walmart for “an
extended period of time” when the store was closed, which was
“suspicious” because it could indicate that the occupants were discussing
strategy related to where they had been or were going. (Dkt. No. 38, Ex.
E at 23-24, 60-61 and Ex. F at 16)

E.

Plaintiff’s minivan went north on I-275, took the first exit, and then
headed south on I-275, which is a recognized method of trying to
discover or lose law enforcement tails – known as a “cleaning move.”
(Dkt. No. 38, Ex. E at 60-61)

F.

When the merchandise was purchased at the Canton Walmart, the buyer
shuffled through numerous cards before paying, which might indicate
credit or gift card fraud. (Dkt. No. 38, Ex. E at 58-59 and Ex. G at 34)

G.

The weather was, according to some Defendants, inclement. (Dkt. No.
38, PgID 287; Dkt. No. 50, PgID 1408; Dkt. No. 50, Ex. G at 24)

Defendants contend that the SOU officers, based on the totality of these
18

circumstances and drawing on their experiences and training, had reason to believe
(reasonable suspicion) that criminal activity may have been afoot in the evening/early
morning hours when they Plaintiff. Relying on Arvizu, 534 U.S. at 273-74 (quoting
Cortez, 499 U.S. at 418) (“officers [are allowed] to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’”). (Dkt. No.
38, Ex. E at 62)
Plaintiff notes that there is abundant evidence that Defendants did not have
probable cause. First, Defendants have acknowledge that “all of the items, taken
individually, might well be completely innocent or bereft of a distinct criminal
behavior.” (Dkt. No. 38, PgID 288) Second, McKinley testified that when Plaintiff
left the Canton Walmart, he knew that neither Plaintiff nor his friends had committed
a crime. (Dkt. No. 38, Ex. E at 46-47) Third, Defendants have not offered any
evidence that the break-ins involved any locations or similar types of stores Plaintiff
traveled on the evening of his arrest.
Fourth, it is not illegal to drive an older vehicle or have a temporary plate on it.
Fifth, it is not unusual to shop at 2:00 a.m. at a 24-hour store, as that is the very
purpose of such stores—to be open all the time. Sixth, it is not suspicious to travel
from store to store looking for an item – or to miss an exit on the expressway and then
19

take corrective action to go in the direction intended. Seventh, there is no evidence
that there was anything suspicious about putting merchandise in the cart at the Canton
Walmart and paying for it with a credit card, especially as there is no evidence that
multiple credit cards were used while checking out of the Canton Walmart.
Plaintiff contends that such events, whether viewed individually or collectively,
do not amount to an objectively reasonable suspicion to support an investigatory stop.
Citing United States v. Fuller, 120 F.Supp.3d 669, 679 (E.D. Mich. 2015) (citing
United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). It is clear that the Wayne
County Circuit judge presiding over Plaintiff’s motion to suppress hearing agreed,
stating that “there was absolutely no reason in the world to stop” and “no reason to
question” Plaintiff before granting the motion to dismiss. (Dkt. No. 46, Ex. G at 1819)
The Court concludes that there is a genuine dispute of material fact that, even
if Defendants had a reason to believe Plaintiff and his friends were engaged in
suspicious activity, that reasonable suspicion evaporated when McAteer watched them
put the items in their cart – and pay for those items with a single credit card – before
leaving the Canton Walmart. The officers involved, including McKinley and Falk,
were aware of those facts. At that point, Defendants knew that Plaintiff and his
friends had not committed a crime in Livonia or Canton. (Dkt. No. 46, Ex. J at 46-47)
20

McKinley’s testimony that the purpose of stopping (seizing) Plaintiff and his friends
was to gather information, not due to reasonable suspicion of criminal activity afoot
further supports the existence of a question of fact whether there was a valid basis for
reasonable suspicion to justify the stop:
You know, maybe just where are they coming from, where they’re
going, are they shopping, what are they doing to kind of maybe paint us
a picture if this is something we should be concerned with or if it’s
nothing and we’ll move on, having just a conversation, conducting a
roadside investigation.
(Dkt. No. 46, Ex. J at 44) As Plaintiff asserts, gathering intelligence for law
enforcement and demanding an explanation for why they were shopping does not
constitute a constitutionally permissible reason to make a Terry stop. United States v.
Pruitt, 174 F.3d 1215, 1221 (11th Cir. 1999).
Defendants argue that, if the Fourth Amendment claims are viable against the
SOU officers, the claims against McAteer and Eisenbeis should be dismissed because
McKinley alone made the decisions to contact the Canton Township Police
Department and to have Falk make contact with Plaintiff. The Court disagrees.
McAteer and Eisenbies were present throughout the events. McAteer was inside the
Canton Walmart conducting surveillance on Plaintiff and his friends and giving the
other officers a play-by-play of what was occurring inside the Walmart, including
descriptions – if not comments – suggesting that a “pushout” or other retail fraud and
21

credit card fraud – was possible, even likely. Eisenbeis drafted a police report that
indicates that the dispatched offense, the subject and the verified offense were
“Suspicious Circumstances” but does not contain any criminal activity committed by
Plaintiff or his friends – except for the possession of the firearm by Plaintiff
discovered after the stop.
The Court finds that there is a genuine dispute of material fact as to whether
Plaintiff’s Fourth Amendment rights were violated by the SOU officers.
2.

Falk

Falk contends that he had reasonable suspicion to stop Plaintiff because:
[B]ased on the facts and circumstances known to Officer Falk at the time
he approached Plaintiff’s vehicle as well as the inferences that he drew
from that information given his experience as a law enforcement officer,
there is no doubt that he had reasonable suspicion to stop Plaintiff. Those
articulable facts included: that the request for Officer Falk to make
contact was by the Livonia SOU, which he knew was highly trained in
surveillance and crime prevention (Ex. G, pp. 13-14); that it was between
2:00 and 3:00 a.m., a time when retail stores are understaffed and a time
where individuals generally do not travel from store to store (Id. at 20,
33); that the weather was “horrible,” which typically deters motorists
from being out on the roads (Id. at 24, 43); that Plaintiff and his friends
had traveled to stores in Livonia and were now inside the Canton
Walmart (Ex. G, pp. 11-12, 31-33, 52; Ex. F); that the Livonia SOU
suspected that Plaintiff was trying to commit a retail fraud inside the
Canton Walmart (Ex. G, pp. 26-27; 35-36); that Plaintiff was driving a
van with a temporary tag that was not registered (Id. at 42, 53, 55) [Falk
argues that this alone provided reasonable suspicion to perform an
investigatory stop]; that Plaintiff and his companions were in the gun
section of the Canton Walmart, which is not typically staffed at that time
of night (Id. at 26, 34); that Plaintiff and his friends were in the
22

electronic section of the store (Ex. H, pp. 20-22, 28); that the SOU
suspected the men were going to do a “push out” initially (Ex. G, pp.
26-27); that Plaintiff got in line and was cycling through several credit
cards, which is characteristic of credit card or financial transaction fraud
(Ex. G pp. 27, 35-36; Ex. B, pp. 58-59, 61-63; Ex. H, pp. 25, 27). All of
these things, in their totality, certainly gave Officer Falk the reasonable
suspicion necessary to approach the vehicle and conduct an investigatory
stop.
(Dkt. No. 39, PgID 541)
Falk asserts that he was justified in relying upon the SOU officers who had
investigated Plaintiff and his friends (the “collective knowledge doctrine”) – and was
instructed by McKinley to make contact with Plaintiff when he left the Canton
Walmart. Relying on Hardesty v. Hamburg Twp., 461 F.3d 646 (6th Cir. 2006). In
Hardesty, the court dismissed a cause of action against Pinckney officers who, upon
arriving on the scene of criminal activity, were told to go into the home by Hamburg
officers, even though the entry was without a warrant. The court stated,
Reliance upon such information insulates the Pinckney officers from
civil liability in the event the information relied upon was defective. . .
. Therefore, even if the Hamburg officers had violated the Fourth
Amendment in the course of learning of the apparent emergency, the
Pinckney officers’ entry into the house based on that information would
not subject the Pinckney officers to [Section] 1983 liability.
Id. at 656. See also United States v. Duval, 742 F.3d 246, 253-54 (6th Cir.), cert.
denied, 135 S.Ct. 116 (2014) (“the collective knowledge of agents working as a team
is to be considered together in determining probable cause.”). See also Lyons, 687
23

F.3d at 768-70 (citations omitted):
The record demonstrates that the troopers were not acting on their own
initiative when they stopped Defendant. The troopers testified that they
had no independent basis to target the minivan; rather they did so solely
based on Agent Graber’s request. . . . The troopers possessed all the
information they needed to act – a request by the DEA (subsequently
found to be well-supported) that they execute the traffic stop . . .
Responding officers are entitled to presume the accuracy of the
information furnished to them by other law enforcement personnel.
They are also entitled to rely upon the investigating officer’s
representations of reasonable suspicion, and to the extent applicable,
whatever exigent circumstances are claimed to support a stop.”
Plaintiff counters that Falk, because he relied on the SOU officers to stop and
seize Plaintiff – and because he had knowledge of what was occurring in the Canton
Walmart, lacked reasonable suspicion to stop Plaintiff for the same reasons the SOU
officers did. The Court agrees that, at a minimum, there is a genuine issue of material
fact whether Falk had reasonable suspicion to stop Plaintiff. First, the Wayne County
Circuit Court judge’s conclusions support this finding as it relates to Falk. Second,
in a light most favorable to Plaintiff, the Court finds that Falk knew that Plaintiff and
his friends had completed their purchase at the Canton Walmart without incident and
that they had not engaged in any legal activity since the surveillance began. (See, e.g.,
Dkt. No. 46, Ex. G at 17) Third, unlike the officers in Hardesty and Lyons, there is
evidence that Falk was not acting “solely based on [McKinley’s] request” to make the
stop. Falk had heard McAteer’s radio contact with the officers outside the Canton
24

Walmart and knew that Plaintiff and his friends had gone through the checkout and
paid for the items in their cart. Based on that knowledge, Falk had knowledge of
Plaintiff’s (legal) activities, and Falk independently had the ability to determine that
there was no reasonable suspicion to justify a stop of Plaintiff.
The Court concludes that there is a genuine dispute of material fact whether
Falk had reasonable suspicion to stop and seize Plaintiff and his friends, in violation
of Plaintiff’s Fourteenth Amendment rights.
B.

Fourteenth Amendment Claims
Plaintiff alleges that he and his friends were targeted, scrutinized, and stopped

by the SOU officers and Falk because they are black. Defendants contend that race
played no factor in the decision to investigate and stop Plaintiff. In order to prevail
on an Equal Protection claim, a plaintiff must demonstrate that “a state actor
intentionally discriminated against the plaintiff because of membership in a protected
class.” Henry v. Metro Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990). A plaintiff
must prove by “direct, circumstantial, or statistical evidence, that he was a target of
racial profiling.” United States v. Saucedo, 226 F.3d 782, 290 (6th Cir. 2000), cert.
denied, 531 U.S. 1102 (2001). A plaintiff may “demonstrate discriminatory effect .
. . through the use of statistical evidence or other evidence which address[es] the
crucial question of whether one class is being treated differently from another class
25

that is similarly situated.” Farm Labor Org. v. Ohio State Hwy. Patrol, 308 F.3d 523,
534 (6 th Cir. 2002); Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th Cir. 2005).
Plaintiff bases his equal protection argument against all officers on several
things: (a) systemic racism in law enforcement is “undeniable” and “is especially true
in mostly white communities with mostly white police departments . . . such as
Livonia and Canton;” (b) Canton is 83.7% white and 4.54% black and Livonia is 92%
white and 3.4% black; (c) only three of Canton’s 87 officers were black and only 1 out
of approximately 100 Livonia officers was black; (d) for five year periods between
2010 and 2015, 34% of the arrests were of blacks in Canton and 53% of the arrests in
Livonia were of blacks; (e) over 45% of the arrests by Canton police for “obstructing
police” and “obstructing justice” were of blacks; and (f) the number of arrests of
blacks in Livonia is more than three times the number of black residents of Livonia.
Plaintiff contends those factors, together with the absence of reasonable
suspicion to stop Plaintiff and his friends, whom McKinley and Falk knew had not
committed a crime, in order to gather “intelligence” and an “explanation” as to why
they were shopping permits an inference that Defendants had a discriminatory
purpose. Plaintiff suggest that, viewing the totality of the circumstances, the white
police officers presumed that the three black males were engaged in criminal conduct
when they were not, such that there is a jury issue on this claim.
26

1.

SOU Officers

Defendants argue that there is no direct evidence of racial animus in this case,
as no race-based comments were made by anyone, and Plaintiff concedes there was
no rudeness. Defendants argue that Plaintiff is making assumptions that he was
stopped because he is black, without any evidence to support that assumption.
Defendants indicate that it was the condition of the minivan, in light of the time of
night, the weather, and the area crime history that prompted the initial scrutiny, and
that McKinley ascertained before learning Plaintiff’s race that there was “no record”
of the temporary plate on the minivan being registered.
Plaintiff argues that McKinley knew that Plaintiff and his friends were black
when Plaintiff was in Livonia. McKinley’s testimony demonstrates that was possible,
as he admits that the SOU officers saw the three black males leave the Meijer store,
though he said only “possibly, you know, after they left the Meijer, but I can’t say for
sure.” (Dkt. No. 39, Ex. B at 55) McKinley states that he knew “for sure that in
Canton, I was solid there were three black males” there. Id. Because none of the
officers saw any criminal activity that evening, and there was a thought that the three
men were part of a larger “crew” and a source of intelligence, Plaintiff concludes that
it was their race that they were followed and seized as “suspicious.”
The SOU officers argue that Plaintiff must show that: (1) he is a member of a
27

protected class (they agree he satisfies this prong); (2) who is similarly situated to
members of another class; and (3) was treated differently from members of that other
class. Citing McMillan v. Svetanoff, 878 F.2d 186, 189 (7th Cir. 1989). The SOU
officers argue that because Plaintiff has not shown that there are any similarly situated
people who were treated differently, he has failed to satisfy the second and third
prongs. The Court finds that is not accurate, as Plaintiff has submitted a number of
statistics that breakdown the race of persons in contact with Livonia (and Canton)
police.
The SOU officers also argue that the statistics offered by Plaintiff, though they
can aid in an indirect or circumstantial equal protection case, do not show any valid
or relevant disparate impact here because the statistical sampling is not sufficiently
defined and narrow to show discriminatory animus. They argue that if there was an
equal protection violation here, it was before any contact was made.
With respect to the SOU officers and Falk, the Court finds that there is a
genuine dispute of material fact whether the investigation and stop and seizure of
Plaintiff and his friends was based on their race.

In particular, McKinley’s

explanation for why he started following the minivan in the first place calls into
question his motivation for following Plaintiff and his friends, especially as they did
not stop the minivan once they learned of the “no record” plates. The absence of any
28

evidence regarding the “no record” result of running the temporary plate and the
suggestion of the SOU officers that they did not know the race of Plaintiff and his
friends prior to the Canton Walmart also suggests that the SOU officers may not be
forthcoming regarding the investigation and stop.
The SOU officers’ motion for summary judgment is denied with respect to
Plaintiff’s equal protection claim.
2.

Falk

Falk states that he did not know that Plaintiff (and his friends) were AfricanAmerican until he arrived at the scene. (Dkt. No. 39, PgID 547; Ex. G at 11, 66)
Eisnbeis did not identify the race of the men in the minivan to Canton dispatch (Dkt.
No. 39, Ex. F), and Falk did not speak to a SOU officer (or anyone from Livonia) until
Falk was at the Canton Walmart. (Dkt. No. 39, Ex. G at 11, 66) The only item that
raises a question of whether Falk knew the race of the minivan occupants before
reaching the Canton Walmart is his written report of the incident, which states, “While
we were en-route I was advised that [the SOU officers] were following three black
males inside the Canton store that they had been watching at one of their Livonia
Walmarts.” (Dkt. No. 39, Ex. I at 4)
Plaintiff also points to a statement made by Falk at his deposition:
Q.

If race played a part in your decision to make an arrest of somebody,
would you admit that under oath?
29

A.

No.

(Dkt. No. 47, Ex. F at 83) When questioned by his own attorney regarding this issue,
Falk then stated:
Q.

I want to know – I want you to elaborate on what you think your answer
meant, what you intended your answer to mean. And I’m not leading
you.

A.

I understand. I think the reason I have a problem with that question is I
feel like he’s saying that I am lying about that, that race did not have a
factor in this, in this situation.

Q.

Is that what you intended your answer to be, when you said you would
not admit?

A.

Yeah, I mean if that would – I guess if that question was asked of me on
the stand and race was a factor, then I would say yes. I’m not perjuring
myself.”

Id. at 86 (see generally 83-86). Plaintiff suggests that Falk’s failure to belt Plaintiff
in the squad car after the arrest and Falk’s driving in a manner that caused Plaintiff to
hit his head and see stars shows a disregard for Plaintiff’s safety (presumably because
he is black).
Falk argues that Plaintiff fails to “prove the decision makers in his case acted
with discriminatory purpose,” as he must do to prevail on his Equal Protection claim.
McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Falk argues that the Canton dispatcher
would not have known the race of the men to relay to Falk, so he could not have
known (his report notwithstanding). Falk argues that it was not within his discretion
30

whether to make contact with the three men–he was instructed to do so–so he could
not have factored Plaintiff’s race into whether to stop Plaintiff or not. Falk also
challenges the statistics offered by Plaintiff, stating that there is not a logical leap to
use the statistics to demonstrate that arrests of African-Americans lacked probable
cause or reasonable suspicion or a defendant was acquitted. Falk says the statistics
do not support an assertion that his arrest must have been race-based, which is
Plaintiff’s burden. Citing United States v. Avery, 137 F.3d 343, 356 (6th Cir. 1997)
(“Only in rare cases will a statistical pattern of discriminatory impact conclusively
demonstrate a constitutional violation.”).
Falk knew that the occupants of the minivan/the subjects inside the Canton
Walmart were black no later than upon his arrival at the Canton Walmart – before he
made contact. As discussed above, there was an absence of reasonable suspicion to
stop Plaintiff and his friends (looking at the facts in a light most favorable to Plaintiff).
Falk’s testimony regarding whether race played a factor also could support a finding
that the fact that Plaintiff and his friends were black was one of the reasons they were
under surveillance and Falk made the stop of the minivan. (Dkt. No. 47, Ex. F at 8386). For these reasons, the Court concludes that an inference that race was a factor in
the stop of Plaintiff and his friends is reasonable. The Court concludes that Falk is not
entitled to summary judgment on Plaintiff’s equal protection claim.
31

C.

Qualified Immunity
1.

SOU Officers

Defendants argue that they were entitled to be reasonably mistaken with regard
to both the facts and the law under the circumstances of the evening in question, all
of which rapidly unfolded. They argue that even if the “no record” report regarding
the minivan’s plate did not establish probable cause, the SOU officers were entitled
to believe that the “no record” report was sufficient under M.C.L. 257.225. They also
contend that, even if the circumstances did not give them grounds for reasonable
suspicion to believe criminal activity was afoot, the officers were reasonably mistaken
in believing it was. The SOU officers contend that Plaintiff’s premise that they
ordered Plaintiff seized simply to gather intelligence is misplaced.
Plaintiff counters that the contours of the Fourth Amendment requirements for
a Terry stop are clearly established and that any reasonable officer would know that
a stop absent reasonable suspicion based on objective and articulable facts violates the
Fourth Amendment. Plaintiff continues, stating that the gathering of intelligence or
an explanation for shopping is not a legitimate basis of seizing/stopping someone
without more that speculation that they might commit a crime. Plaintiff argues that
Defendants did not have reason to believe that he was committing a crime or was in
the process of doing so.
32

The SOU officers also contend that Plaintiff must identify facts to show that
their contact with him was driven by race-based considerations, which they suggest
he has not done because the investigation began without knowledge of the race of
Plaintiff or his friends. They assert that Plaintiff would have to show that no
reasonable officer would have continued the investigation upon the discovery of
Plaintiff’s race–something that the law does not require.
For the reasons set forth in Sections IV.A.1. and IV.B. above, the Court finds
that the SOU officers are not entitled to qualified immunity. The genuine dispute of
material fact regarding whether race was a factor in the investigation and seizure of
Plaintiff and his friends precludes a finding that a reasonable officer could believe that
considering race as a factor would not violate clearly established statutory or
constitutional rights of which a reasonable person would have known–that is, it “is
sufficiently clear that every reasonable official would have understood that what he
is doing violates that right.” Mullenix, 136 S. Ct. at 308.
2.

Falk

Falk argues that, even if there is a determination that evidence could show a
constitutional violation by Falk, he had reason to believe his conduct conformed to the
law. Falk states that it was reasonable to rely on the observations and instructions of
the SOU officers who had Plaintiff under surveillance for a period prior to requesting
33

Falk’s involvement. Falk maintains that, even if he was mistaken in this belief, this
is the type of case is the reason that qualified immunity exists
Plaintiff responds that the collective knowledge doctrine, together with Falk’s
involvement, establishes that Falk knew Plaintiff: (1) was black; (2) had paid for the
merchandise; (3) had not engaged in a “push out;” and (4) had not committed any
crime. For these reasons, Plaintiff contends that Falk knew there was no reasonable
suspicion to justify stopping Plaintiff.
For the reasons stated in Sections IV.A.2. and IV.B.2. above (namely, that Falk
stated that race was a factor), the Court denies Falk qualified immunity. As with the
SOU officers, the genuine dispute of material fact regarding whether race was a factor
in the investigation and seizure of Plaintiff and his friends precludes a finding that a
reasonable officer could believe that considering race as a factor would not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known–that is, it “is sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308.
D.

Conspiracy
A claim for conspiracy under §1983 “must be pled with some degree of

specificity and that vague and conclusory allegations unsupported by material facts
will be sufficient to state such a claim.” Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th
34

Cir. 1987) (citations omitted). A civil conspiracy is “an agreement between two or
more persons to injure another by unlawful action.” Weberg v. Franks, 229 F.3d 514,
526 (6th Cir. 2000). A plaintiff must show that there was “a single plan, that the
alleged coconspirator shared in the general conspiratorial objective, and that an overt
act was committed in furtherance of the conspiracy that caused injury.” Hooks v.
Hooks, 771 F.2d 935, 944 (6th Cir. 1985). Section 1985(3) prohibits a conspiracy “for
the purpose of depriving either directly or indirectly, any person or class of persons
of the equal protection of the laws or of equal privileges and immunities under the
laws.” To establish this claim, “there must be some racial or perhaps otherwise
class-based, invidiously discriminatory animus behind the conspirators’ actions.”
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
Plaintiff asserts that Falk and the SOU officers acted in concert to deprive
Plaintiff of his clearly established constitutional rights. Plaintiff’s argument on this
claim is, essentially, limited to the arguments he made with respect to his Fourth and
Fourteenth Amendment claims (in essence, no reasonable suspicion justified his
seizure and race was a motivating factor in their decisions). Plaintiff’s argument to
support his conspiracy claim further offers only that: (1) Falk and the SOU officers
were in constant communication with each other in the time leading up to his seizure
and arrest; (2) “all of the Livonia officers acted in concert to deprive Plaintiff of his
35

clearly established constitutional rights,” and (3) he “has alleged and produced
evidence to establish that his race played a motivating factor in the decision to stop
him.”
1.

SOU Officers

The SOU officers did not address the conspiracy claim in their original brief.
In their reply brief, the SOU officers argue that none of the necessary elements have
been pled or argued and that the evidence does not support such a claim. They also
argue that, to the extent Plaintiff argues that they conspired amongst themselves (as
page 19 of Plaintiff’s response brief literally states), the intra-corporate conspiracy
doctrine bars a conspiracy claim against them. Upton v. City of Royal Oak, 492 F.
App’x 492, 506-07 (6th Cir. 2012).
2.

Falk

Falk argues that Plaintiff has failed as a matter of law to plead – or show –
“with some degree of specificity and that [Plaintiff’s] vague and conclusory
allegations unsupported by material facts [do not] sufficient[ly] state such a claim.
Guiterrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987) (citations omitted). Falk
argues that Plaintiff makes no reference to the nature of the conspiracy, what
conversations took place between whom, or where or when such conspiratorial
interaction occurred, to say nothing of evidence demonstrating the existence of an
36

agreement, plan or single objective amongst any of the Defendants. Citing Smith v.
Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1988) (“In the absence of any evidence that
the defendants agreed to deprive plaintiff of his constitutional rights,” dismissal of
conspiracy claim was proper).
3.

Conclusion

Plaintiff’s conspiracy claim is not well-pled or argued. Plaintiff does not set
forth any evidence that any of the Defendants agreed to take any action against
Plaintiff that would deprive him of his constitutional rights. At most, he states that the
officers spoke to each other but offers no evidence of a plan or any general
conspiratorial objective. For that reason, Defendants’ motions for summary judgment
are granted with respect to the conspiracy claim.
E.

Municipal Liability Claims
Plaintiff has alleged that both Livonia and Canton are liable for the

unconstitutional practice of treating black citizens differently than white citizens. A
municipal defendant can only be subject to direct liability if it causes the constitutional
harm because it “implements or executes a policy statement, ordinance, regulation or
decision officially adopted and promulgated by” that body’s officers. Monell v. New
York City Dep’t of Social Servs., 436 U.S. 658, 690 (1978). “[I]t is when execution
of a government’s policy or custom, whether made by its lawmakers or by those
37

whose edicts or acts may fairly be said to represent official policy, inflicts the injury
that the government as an entity is responsible under Section 1983.” Id. at 694. A
plaintiff cannot allege a viable claim based solely on vicarious liability or respondeat
superior. Id. at 691. The municipality’s policy (or absence of one) must be a “moving
force” in the deprivation of the plaintiff’s constitutional rights and such policy must
have arisen from “deliberate indifference” to the rights of its citizens. Doe v.
Claiborne Cty., Tenn., 103 F.3d 495, 508 (6th Cir. 1996).
Plaintiff’s argument against Livonia consists of the following paragraph, which
seemingly incorporates and relies on the statistics identified by Plaintiff:
Here, Plaintiff has established a Fourth and Fourteenth Amendment
violation. Plaintiff has produced documentary evidence to establish
systemic institutional racism in the City of Livonia Police Department.
What else could possibly explain why over one-half of all people
arrested in Livonia over the past three years are black when they
comprise only a tiny portion of the general populace? Accordingly,
issues of fact preclude Defendants’ motion for summary judgment.
(Dkt. No. 46, PgID 821) Plaintiff’s argument against Canton is the same, except that
the question posed is “What else could possibly explain the undisputed fact that over
one-third of all people arrested in Canton over the past five years are black when they
only comprise a tiny portion of the populace?”
Defendants argue that Plaintiff has failed to produce any facts demonstrating
that Livonia or Canton has failed to train or supervise their employees or indicate any
38

custom, policy, or practice that served as the driving force behind the alleged
constitutional violation.

Defendants argue that there is no evidence of prior

occurrences giving notice to them that they maintained inadequate practices. Plaintiff
does not address this issue in its arguments regarding municipal liability, but Plaintiff
included a footnote in its argument regarding its equal protection claim against
Canton. Plaintiff stated, “Canton also received numerous citizen complaints of racial
profiling and discrimination based on race. [Dkt. No. 47, Ex. U] Without exception,
Canton summarily dismissed all of these grievances as unsupportable.” (Dkt. No. 47,
PgID 1119, n.8) One such grievance involved Falk with respect to a traffic stop on
May 11, 2011.
Canton argues that its police training regularly includes race, diversity, and
ethnicity training (7 occasions between March 2007 and November 2015), so there
cannot be a showing of deliberate indifference. Canton also notes that Plaintiff admits
that he has no information to suggest that Canton has a custom of racially profiling
drivers. Livonia argues that the statistical information has no bearing on this issue
because it does not identify or take into account the number of persons who come into
Livonia for any number of reasons.
Plaintiff has not presented allegations, argument, or evidence (at least not that
is connected) to support his claims of municipal liability against Livonia or Canton.
39

Plaintiff does not show that Livonia was on notice of racial profiling or discrimination
by any of the SOU officers. As a matter of law, a practice of deliberate indifference
cannot be established with a single occurrence. Oklahoma v. Tuttle, 471 U.S. 808,
823-24 (1985). Plaintiff’s municipal liability claim must be dismissed as to, and
summary judgment on that claim must be entered in favor of, Livonia
Plaintiff has offered evidence that Canton had complaints of racial
discrimination/profiling, including one instance involving Falk. Canton also has
presented evidence that it regularly trains its officers regarding race, diversity and
ethnicity, which would suggest there is not deliberate indifference. The Court finds
that there is a genuine issue of material fact as to whether Canton is subject to
municipal liability. Canton’s motion for summary judgment is denied.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed by Livonia,

McKinley, Eisenbeis, and McAteer [Dkt. No. 38] is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Canton and Falk [Dkt. No. 39] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff’s cause of action against Livonia is
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DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s conspiracy claim is DISMISSED.
IT IS FURTHER ORDERED that all other claims remain before the Court.
IT IS ORDERED.

s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 29, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 29, 2017, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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