Penn v. Bed Bath & Beyond, Inc. et al

Filing 44

ORDER Requiring Supplemental Briefing re 36 MOTION for Summary Judgment: (Supplemental Briefs due by 3/22/2019.) Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TODD CHARLES PENN,
Plaintiff,

Case No. 17-cv-10862
Hon. Matthew F. Leitman

v.
JASON BERGTOLD,
Defendant.
__________________________________________________________________/
ORDER REQURING SUPPLEMENTAL BRIEFING
The Court is currently considering Defendant Jason Bergtold’s motion for
summary judgment in this action. (See ECF #36.) The issues raised by the parties
in connection with the motion include (1) whether Bergtold could reasonably have
believed that there was probable cause to arrest Plaintiff Todd Charles Penn and (2)
whether probable cause in fact existed to charge Penn with retail theft.
The Court has concluded that it would it would benefit from supplemental
briefing. Accordingly, by no later than March 22, 2019, both parties shall submit
supplemental briefs that address the following issues:
 In Bergtold’s summary judgment motion, he lists a number of facts that,
he says, support the conclusion that he reasonably could have believed
that there was probable cause to arrest Penn and that there was in fact
probable cause to charge Penn with retail theft. (See Mot., ECF #36 at
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Pg. ID 549-50.) But Bergtold has not directed the Court to any cases
in which a court has found, on facts even arguably similar to those here,
that an officer could reasonably have concluded that there was probable
to arrest and/or that there was probable cause to charge a suspect with
a crime. In Penn’s response brief, he identifies certain general rules
concerning the determination of probable cause by a police officer. But
Penn has not cited any factually similar cases in which a court has
determined that an officer could not reasonably have concluded that
there was probable cause to arrest and/or that there was not probable
cause to charge a suspect with a crime. The Court therefore directs
Bergtold’s counsel to identify (1) the most factually-analogous cases in
which courts have determined that an officer did have probable cause
to arrest and/or that an officer could reasonably have concluded that
probable cause to arrest existed and (2) the most factually-analogous
cases in which courts have determined that there was probable cause
for the criminal charge. The Court further directs Penn’s counsel to
identify (1) the most factually-analogous cases in which courts have
determined that an officer did not have probable cause to arrest and/or
that an officer could not reasonably have concluded that probable cause
to arrest existed and (2) the most factually-analogous cases in which
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courts have determined that there was not probable cause for the
criminal charge.
 The parties are directed to identify cases in which courts have analyzed
whether a police officer may rely on an allegedly-unreliable
identification procedure when determining whether there is probable
cause to arrest and whether an allegedly-unreliable identification
procedure may be considered when determining whether there is
probable cause to charge a suspect with a crime. The Court is not
looking for cases addressing whether an identification that resulted
from an allegedly-unreliable identification procedure is admissible at
trial. The Court is focused specifically on (1) whether an identification
that results from such a procedure may be used when determining
whether there is probable cause to arrest and (2) whether an
identification that results from such a procedure may be used when
determining whether there is probable cause to charge a suspect with a
crime.
 Assuming, arguendo, that the show-up used in this case was suggestive,
the parties are directed to address whether the eyewitness
identifications in this case were nonetheless reliable under the five-part
test used by the Sixth Circuit when determining the reliability of
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identifications under the Stovall line of cases. See United States v.
Crozier, 259 F.3d 503, 510 (6th Cir. 2006).


The parties are directed to address whether the Court may consider, as
evidence on summary judgment, statements made in the police report
by officer John Corder reporting his personal interactions with Penn.
For instance, the parties shall address whether those statements are
admissible as a public record under Federal Rule of Evidence 803(8)
and/or admissible under any other rule of evidence. Without drawing
any conclusions about the relevance of the following cases, the Court
directs the parties to the following authorities which discuss the
admissibility of police reports as a public record: Miller v. Field, 35
F.3d 1088 (6th Cir. 1994); Dortch v. Fowler, 588 F.3d 396, 402-05 (6th
Cir 2009); Brady v. City of Westland, 1 F.Supp.3d 729, 732 n.3 (E.D.
Mich. 2014). 

IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 8, 2019

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 8, 2019, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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