Bey v. Falk

Filing 65

ORDER Denying Canton Defendants' Motion for Reconsideration 56 . 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 CANTON DEFENDANTS’
MOTION FOR RECONSIDERATION [#56]
I.

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

for Summary Judgment filed by Defendants Adam Falk and Canton Charter Township
(the “Canton Defendants”). The Canton Defendants filed a timely Motion for
Reconsideration. Dkt. No. 56. 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.” Pursuant to the Court’s order, Plaintiff
filed a response. Dkt. No. 61.
II.

LEGAL STANDARD
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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
The Canton Defendants first argue that the Court was misled by Plaintiff that

Falk was in direct communication with Livionia police officer Megan McAteer. The
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Court agrees that it drew that conclusion, but the primary reason for the Court’s
conclusion was the language in the Canton Defendants’ brief. The Canton Defendants
repeatedly implied that Falk heard the observations McAteer made while in the
Canton WalMart by failing to indicate that McKinley relayed that information. See
Dkt. No. 39, PgID 536-37 (“Officer McAteer additionally advised . . .”; “Officer
McAteer also indicated . . .”; “Officer McAteer further relayed . . .”; and “Officer
McAteer then stated . . .”). A review of the parties’ recent filings reveals that it is
undisputed that Falk was not in direct contact with McAteer but instead only heard
what Livonia police officer Andrew McKinley (who was in direct contact with
McAteer) relayed to Falk (and other officers).
Despite this issue upon which the Court was misled, the “correction” of that
palpable defect does not change the Court’s analysis. It is undisputed that McAteer
observed and communicated to McKinley that Plaintiff and his companions went
through the checkout of the Canton WalMart and paid for the items in their cart. The
fact that Falk testified that he did not hear any of this information directly from
McAteer does not unequivocally establish that the information was not communicated
to Falk, especially as McKinley testified that “I’m on the phone with [McAteer].
She’s talking to me through cell phone and I’m just updating the guys on our police
radio.” Dkt. No 56, PgId 1499 (citing Dkt. No. 39, Ex. B at 30-31). In order for the
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Court to reach the conclusion the Canton Defendants desire (that Falk was not aware
that Plaintiff and his companions went through the checkout and paid for the items in
their cart), the Court would have to assume that Falk was telling the truth when he
stated that he never heard that Plaintiff and his companions went through the checkout
of the Canton WalMart and paid for the items in their cart. But, credibility
determinations are for the factfinder, not the Court. For the reasons set forth in the
March 29, 2017 Order, the Court is not persuaded that there is an absence of genuine
dispute that Falk had reasonable suspicion to believe Plaintiff and his companions had
engaged in criminal activity when Falk conducted the investigatory stop. As a result,
viewing the facts in a light most favorable to Plaintiff, the Court also is not persuaded
that this case is factually indistinguishable from Hardesty and Lyons,1 such that Falk
is not not liable under that line of cases.
The Canton Defendants argue that the Court was misled by Plaintiff’s
misrepresentation that Falk needed to establish independent reasonable suspicion of
retail fraud in order to lawfully stop Plaintiff. But, contrary to the Canton Defendants’
suggestion, the Court did not require that Falk have “independent reasonable suspicion
to stop Plaintiff.” The Court only concluded that, “at a minimum, there is a genuine

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Hardesty v. Hamburg Twp., 461 F.3d 646 (6th Cir. 2006); United States v. Lyons, 687
F.3d 754 (6th Cir. 2012).
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issue of material fact whether Falk had reasonable suspicion to stop Plaintiff.” Dkt.
No. 53, PgID 1444. The Court also is not persuaded by the Canton Defendants’
suggestion that the Court relied on Judge Groner’s criminal ruling and/or applied it
as collateral estoppel offensively. 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
challenged or appealed. The Court did not base its decision on Judge Groner’s ruling,
nor did the Court treat Judge Groner’s ruling as having a collateral estoppel or res
judicata effect.
The Court also is not persuaded that it was misled regarding Falk’s
investigatory stop. Despite the Canton Defendants’ assertion that Plaintiff’s conduct
as soon as Falk approached the vehicle (allegedly revealing to Falk that Plaintiff was
carrying a concealed weapon) defeats his claim of liability, there is evidence (taken
in a light most favorable to Plaintiff) that evening’s events unfolded in the following
order: (1) Plaintiff and his companions returned to their van from the Canton WalMart
and Plaintiff was in the van with his seatbelt on; (2) three police cars surrounded the
van after Plaintiff got in it; (3) Falk approached the van and ordered Plaintiff and his
companions out of the van; and (4) Plaintiff revealed that he was carrying the
concealed weapon. Dkt. No. 46, Ex. A at 54-58; Ex. F at 38-40. Based on that
sequence of events, the Court finds no merit in the Canton Defendants’ argument that
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the stop was permissible – and they cannot be liable – because Falk had reasonable
suspicion/probable cause to detain based on Plaintiff’s possession of the concealed
firearm without a valid permit.
The Canton Defendants contend that the Court was misled to believe that Falk
made contact with Plaintiff in order to gather intelligence or obtain an explanation for
why he was shopping.

Although they assert that Falk had no knowledge of

McKinley’s expressed intent to obtain identification, gather information, and get an
explanation for why Plaintiff and his companions were shopping, it is undisputed that
McKinley testified to that intent. The Canton Defendants argue that “there is
absolutely no evidence to suggest that Falk had any knowledge whatsoever of
McKinley’s subjective intent, but they do not cite any testimony by McKinley that he
did not communicate that intent to Falk. The Court concludes that, as the evidence in
the record reflects that McKinley had the specified intent and was communicating
with Falk regarding the stop or “contact” to be made of Plaintiff and his companions,
it is for the fact finder to determine whether Falk was aware of McKinley’s intent.
The Court was not misled, as the Canton Defendants suggest, regarding the
nature of Falk’s testimony pertaining to racial profiling and the significance of his
police report. The Court accurately quoted Falk’s testimony and cited the police
report prepared by Falk. The Court’s analysis recognized that both items contain
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evidence that, taken in a light most favorable to Plaintiff, could support a claim that
Plaintiff’s race was factor in Falk’s actions. The Canton Defendants’ argument frames
the evidence in a light most favorable to them, a view the Court cannot adopt at this
stage of the proceedings.
As to the Canton Defendants’ claim that the Court was misled regarding
Plaintiff’s Monell claim, the Court first notes that the sentence they cite (“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.”) mistakenly
included “or Canton.” As the Canton Defendants recognize, the Court later stated that
“Plaintiff has offered evidence that Canton had complaints of racial
discrimination/profiling, including one instance involving Falk.”

The Canton

Defendants: (a) do not dispute that evidence; and (b) essentially reiterate the
arguments presented in their motion, supporting brief, and reply brief regarding the
effect (or lack thereof) of those complaints and the manner in which the City of
Canton handled them. The Court again concludes that the evidence presented
establishes a genuine dispute of material fact as to whether the City of Canton is
subject to municipal liability.

IV.

CONCLUSION
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Accordingly,
IT IS ORDERED that the Motion for Reconsideration filed by the Canton
Defendants [Dkt. No. 56] is DENIED.
IT IS ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 16, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 16, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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