Bey v. Falk

Filing 62

ORDER Denying Livonia Defendants' Motion for Rehearing or Reconsideration Per LR 7.1(h) 55 . 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.
HON. DENISE PAGE HOOD
ADAM FALK, CANTON CHARTER
TOWNSHIP, CITY OF LIVONIA,
ANDREW McKINLEY, ERIC
EISENBEIS, and MEGAN McATEER,
Defendants.
_________________________________________/
ORDER DENYING LIVONIA DEFENDANTS’ MOTION FOR
REHEARING OR RECONSIDERATION PER LR 7.1(h) [#55]
I.

INTRODUCTION
On March 29, 2017, the Court issued an Order that, in part, denied the Motion

for Summary Judgment filed by Defendants City of Livonia, Andrew McKinley, Eric
Eisenbeis, and Megan McAteer (the “Livonia Defendants”). The Livonia Defendants,
other than the City of Livonia (which was dismissed from this cause of action in the
Court’s March 29, 2017 Order), filed a timely Motion for Reconsideration. Dkt. No.
55. Pursuant to Local Rule 7.1(h)(2) of the Eastern District of Michigan’s Local
Rules, “[n]o response to the motion and no oral argument are permitted unless the
court orders otherwise.” Having reviewed the Livonia Defendants’ Motion for
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Reconsideration, the Court concludes that no response or oral argument is necessary.
II.

LEGAL STANDARD
In order to obtain reconsideration of a particular matter, the party bringing the

motion for reconsideration must: (1) demonstrate a palpable defect by which the Court
and the parties have been misled; and (2) demonstrate that “correcting the defect will
result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3). See also
Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th
Cir. 2004); Aetna Cas. and Sur. Co. v. Dow Chemical Co., 44 F.Supp.2d 865, 866
(E.D. Mich. 1999); Kirkpatrick v. General Electric, 969 F.Supp. 457, 459 (E.D. Mich.
1997).
A “palpable defect” is a “defect which is obvious, clear, unmistakable, manifest,
or plain.” Olson v. The Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004). The
movant also must demonstrate that the disposition of the case would be different if the
palpable defect were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v. Walgreens Income
Protective Plan for Store Managers, No. 10-CV-14442, 2013 WL 1040530, at *1
(E.D. Mich. Mar. 15, 2013). “[T]he court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled upon by the Court, either
expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
III.

ANALYSIS
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The Livonia Defendants first argue that the Court erroneously analyzed whether
they had reasonable suspicion to conduct an investigatory stop of Plaintiff. They
contend that they only requested that Defendant Adam Falk (“Falk”) “make contact”
with Plaintiff. The Court finds this argument disingenuous. In fact, in their response
brief, the Livonia Defendants made several arguments that reflect their summary
judgment motion was based on whether reasonable cause existed for the “contact”: (a)
the “criminal charge was dismissed because the Canton Township officer did not have
personal knowledge of the suspicions of the Livonia police that requested the contact.
. . . this motion is advanced on the premise that Mr. Bey reasonably felt he was not
free to leave in avoidance of factual controversy. If this stop or detention was
supported by either probable cause or reasonable suspicion, it was consitutionally
valid, . . .” [Dkt. No. 38, PgID 267]; and (b) “[i]f Mr. Bey had refused to get out with
no further police action, then this would not have been considered an investigatory
stop as the facts would have demonstrated that Mr. Bey was free to leave.” [Dkt. No.
38, PgID 284. Except for a couple of conclusory statements in the “Summary” of
their argument, the Livonia Defendants did not argue that they had the right to “make
contact” in their summary judgment motion. See Dkt. No. 38, PgID 283-90.
The Court also finds that evidence in the record reflects that the Livonia
Defendants were following Plaintiff and his companions because they suspected
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criminal activity, beginning in Livonia and continuing in Canton, right up to the point
of directing Falk to “make contact” with Plaintiff. The Livonia Defendants, as
evidenced by McAteer conducting surveillance and communicating her observations
of Plaintiff and his companions to McKinley while she was in the Canton WalMart,
believed Plaintiff and his companions were engaged in retail fraud and/or credit card
fraud in the Canton Walmart. The Livonia Defendants communicated these beliefs
to Falk. The manner in which Falk “made contact” with Plaintiff was to immediately
order Plaintiff out of the vehicle, an action that is consistent with an investigatory
stop. At a minimum, that action creates a genuine dispute of material fact that Falk’s
“contact” was simply the purpose of conversing with Plaintiff to obtain Plaintiff’s
identification, as the Livonia Defendants suggest.
In essence, the Livonia Defendants are asking the Court to blindly accept that
contact can be made for any reason, such that law enforcement officers are entitled to
qualified immunity by asserting that they were just “making contact” with someone.
The Livonia Defendants appear to be suggesting that, because the officers state that
they only intended to “make contact” with Plaintiff and his companions, the Court
should ignore all of the other circumstances that existed or were present at the time.
To do so, however, would require denying and ignoring circumstances that create, at
a minimum, a genuine dispute of material fact whether the interaction with Plaintiff
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and his companions that the Livonia Defendants ordered and attempt to justify was
an investigatory stop.
For the reasons stated above, the Court does not find that it was misled by a
palpable defect regarding whether there was an investigatory stop of Plaintiff or the
Livonia Defendants’ role in supporting and ordering the investigatory stop of Plaintiff.
The Court is not persuaded that it was misled or erred when it “disregarded” the
possible M.C.L. § 257.225 (driving an unregistered vehicle) violation involving the
Plaintiff’s van. None of the Livonia Defendants cited the “possible unregistered
vehicle” as a reason for the investigatory stop, despite allegedly knowing that they
could do so. The Livonia Defendants again are asking the Court to ignore any intent
of officers and, implicitly, suggesting that officers should be able to create a laundry
list of possible violations after-the-fact to justify their stop. But, to completely ignore
the intent of officers and the reasons they gave (or did not give) for following Plaintiff
and his companions (and the actions or inactions of the officers, which may
demonstrate or permit inference of intent) would insulate officers from a finding of
discriminatory conduct in virtually every case, regardless of the evidence.
The Livonia Defendants suggest that the Court relied on Judge Groner’s
criminal ruling, but that is conjecture. In its Order, the Court noted that Judge Groner
made a ruling finding that the stop of Plaintiff was baseless and that his ruling was not
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challenged. The Court did not base its decision on Judge Groner’s ruling, nor did the
Court treat his ruling as having a collateral estoppel or res judicata effect. The
Livonia Defendants also present a new argument regarding what McAteer knew – or
could not know – with respect to the possible (suspected) retail fraud perpetrated by
Plaintiff and his companions. As it is a new argument, it is not properly before the
Court on a motion for reconsideration. The Court is not persuaded that either of those
arguments establishes a palpable defect by which the Court was misled.
The Livonia Defendants next argue that the Court equated the merits of the
Plaintiff’s claims with the qualified immunity analysis. Ironically, despite earlier
arguing that the subjective intent of the Livonia officers did not control, the Livonia
Defendants assertions regarding the qualified immunity analysis are based on their
belief that “Plaintiff generat[ed] no fact questions regarding the officers’ knowledge
or suspicions, admitting that he had no idea what they were thinking.” The Livonia
Defendants also contend that each Livonia officer is entitled to an analysis of his or
her conduct. The Court finds that they are either: (1) ignoring the Court’s analysis
regarding each officer (see Dkt. No. 53, PgID 1436-42 for a discussion of why
Plaintiff’s action is viable against the individual Livonia Defendants, in particular
PgID 1441-42 as it relates to McAteer and Eisenbeis); or (2) simply rearguing the
issue because they disagree with the analysis and conclusion of the Court. The Court
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concludes that the Livonia Defendants’ contentions regarding qualified immunity and
belief that the Court did not consider each Livonia officer individually present no
palpable defect by which the Court was misled.
The Court also is not persuaded that it operated under any palpable defect when
conducting its analysis of Plaintiff’s Equal Protection Claim as it pertains to the
Livonia Defendants. The Livonia Defendants ignore that one of the factors the Court
cited and upon which it relied when finding a genuine dispute of material fact on the
equal protection claim was the absence of any evidence that there was “no record”
result attributable to McKinley having the temporary plate run on Plaintiff’s van
(which McKinley states he requested).

Finally, with respect to

the Livonia

Defendants’ argument about “[t]he Court’s Over-Reliance on the Statistics vis a vis
the Equal Protection Claim, the Court finds that they “merely present [the same
arguments and] the same issues ruled upon by the Court” when it decided the Livonia
Defendants’ Motion for Summary Judgment.
For the reasons stated above, the Court concludes that the Livonia Defendants
have not satisfied their burden of demonstrating a palpable defect by which the Court
and the parties were misled, such that correcting the defect would result in a different
disposition of their summary judgment motion.
IV.

CONCLUSION
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Accordingly,
IT IS ORDERED that the Motion for Reconsideration filed by the Livonia
Defendants [Dkt. No. 55] is DENIED.
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 5, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 5, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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