Henry et al v. City of Flint, a municipal corporation et al

Filing 118

OPINION AND ORDER granting 88 Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID HENRY AND HEATHER
WILLIAMS,
Case No. 17-cv-11061
Plaintiffs,
Paul D. Borman
United States District Judge

v.
THE CITY OF FLINT, MICHAEL
HENIGE, SEAN COE, AND NIKOLAS
WHITE,

David R. Grand
United States Magistrate Judge

Defendants.
______________________________/
ORDER AND OPINION GRANTING DEFENDANTS MICHAEL HENIGE,
SEAN COE, AND NIKOLAS WHITE’S MOTION FOR SUMMARY
JUDGMENT (ECF #88)
I.

BACKGROUND

Plaintiffs David Henry and Heather Williams (collectively, “Plaintiffs”) are
residents of the City of Flint, Michigan. On the night of November 23, 2016, Henry
was arrested by Defendant City of Flint Police Officers Sean Coe, Michael Henige,
and Nikolas White (“Officers”) and charged with “Disorderly Conduct and
Disorderly Persons” in violation of Flint Ordinance Section 31-12 and “Resisting
Arrest” pursuant to Section 31-1.1

1

Although Henry’s citation lists Mich. Comp. Laws § 750.167 as the “Disorderly”
violation, this was essentially a scrivener’s error due to computer field auto1

Plaintiffs filed the instant lawsuit asserting the following federal civil rights
violations:
Count I:

Violation of Civil Rights under 42 USC §1983 (Fourth
Amendment – Unlawful Arrest) Against the Individual
Defendants

Count II:

Violation of Civil Rights under 42 USC §1983 (Fourth
Amendment – Excessive Force) Against the Individual
Defendants

Count III:

Violation of Civil Rights under 42 USC §1983 (First
Amendment – Retaliatory Arrest) Against the Individual
Defendants

Count IV:

Violation of Civil Rights under 42 USC §1983 (Municipal
Liability) Against the City of Flint2

Before the Court is the Officers’ Motion for Summary Judgment. (ECF #88.)
On December 20, 2018, the Officers filed the instant Motion. On January 25, 2019,
Plaintiffs filed their Response (ECF #104). On January 31, 2019, the Officers filed
their Reply. (ECF #105.) The Court held a hearing on May 3, 2019.

population. (Dep. of Dr. Donald McLellan, Nov. 19, 2018, ECF #99-2.) The Flint
City Attorney amended the charge to the proper ordinance violations, as alleged in
Plaintiff’s’ First Amended Complaint: “Officer Henige charged Mr. Henry with
disorderly conduct (City of Flint Code Ordinances § 31-12) and resisting arrest (City
of Flint Code Ordinances § 31-1).” (1st Am. Compl., ECF #30, ¶51, PgID 406.)
2

The City of Flint was dismissed from this matter by stipulation of the Parties on
January 15, 2019. (ECF #98.)
2

II.

FACTS

At or around one a.m. on the night of November 23, 2016, while on patrol,
Officers Coe and Henige stopped to question a woman who provided information
regarding the location of an individual with an outstanding felony warrant. (Dep. of
Michael Henige, Mar. 6, 2018, ECF #88-1, 65:5-70:5, PgID 1612-17.) She stated
that the individual was possibly located at 1706 Colorado Avenue. (Id.) The Officers
then placed her in the rear seat of the patrol car and proceeded to that address in
search of the warrant suspect. (Id.)
Plaintiffs’ home was located directly next to 1706 Colorado Avenue, at 1714
Colorado Avenue. (Dep. of Sean Coe, Mar. 7, 2018, ECF #88-3, 111:3, PgID1831.)
Upon arrival, Officers Coe and Henige stepped out of their patrol car to investigate
1706 Colorado Avenue using flashlights. Plaintiff Henry, who, at the time was
awake and in his living room with his girlfriend, Plaintiff Heather Williams, noticed
the lights shining into the windows of his home. (Dep. of David Henry, Oct. 10,
2017, ECF #88-8, 61:9-12, PgID 1978.) This prompted Henry to begin recording
with his mobile phone (which he does “everywhere I go”), and Henry and Williams
went outside to investigate. (Id. at 61:17-23, 67:3-11.) Henry had installed multiple
outdoor security cameras and monitor banks that surveil the perimeter of his home.
(Id. at 55:4-24; 59:12-22.) Henry testified that he purposely did not set the front
camera to record when he went outside that night because he was recording with his
3

mobile phone. (Id.) Williams testified that she immediately understood that the lights
had come from the Officers because she saw marked law enforcement vehicles when
she and Henry stepped out on their porch. (Dep. of Heather Williams, Oct. 10, 2017,
ECF #88-15, 40:13-15, 42:3-10, PgID 2449, 2451.) Henry testified that upon going
outside, he asked what was going on, and one of the Officers informed him that they
were the police. (Henry Dep., Oct. 10, 2017, ECF #88-8, 63:23-24, PgID 1980.) At
that point, this “conversation” between Henry and Officers Henige and Coe
commenced:
Henry: I don’t know why they all flashing up in my yard and stuff…
Why you all up in the yard and stuff.
Officer Henige: What’s up?
Henry: Why you all up in my yard flashing the lights everywhere?
Officer Henige: This is not your yard. This - Do you own this house?
Henry: Somebody was just on the side over there.
Officer Henige: That’s the back yard of that house.
Henry: Okay, but I just – I – I seen lights on – I seen lights on the side
of my house.
Officer Henige: Well, it’s a light.
Unknown Officer: What’s going on?
Officer Henige: He told me we were on his property. I said do you own
that house? No, no he doesn’t.
(Defs.’ Mot., ECF #88-7, Cell Video at 0:19-1:05.)
4

At this point, the exchange’s tone and volume began to escalate:
Henry: You ain’t gotta be an asshole. I just asked a question.
Officer Henige: You asked it like an asshole, man.
Henry: I ain’t acting like an asshole. I asked what you was doing on the
side of my house.
Officer Henige: Is that any of your business right now?
Henry: Yeah, it is my business.
Officer Henige: Tell me how?
Henry: But it is my business.
(Defs.’ Mot., ECF #88-7, Cell Video at 1:05-1:20).
The debate continues as to whether the Officers’ activity was Henry’s
“business,” and Henry’s volume remained elevated. At this point, Officer Coe made
a comment to Officer Henige, with the apparent intent that Henry hear it, that, “I
think we just got a new project house.”3 (Defs.’ Mot., ECF #88-7, Cell Video at
1:05-1:20). The “project house” comment prompted Henry to “threaten” the Officers
that they would “find out who I am downtown.” (Id.)

3

“Project house” is a term for a residence where the police believe there may be
some type of problematic “issue.” (White Dep., ECF #88-9, PgID 2260, 81:18-21.)
5

Officer White then unsuccessfully attempted to de-escalate the situation,
while Officer Coe interjected requests that Henry approach the police vehicle to
speak with the Officers:4
Henry: You got a new project house? Really. Don’t come on my
property.
Officer White: I’m just asking you a question.
Henry: What?
Officer White: So, I understand your concerns, bro.
Henry: No – No, I just asked him a simple question on why, why is
lights on the side of my house, and you want to be an asshole.
Officer White: Okay, I’m not being an asshole.
Henry: I know you’re not, but both of them, talking about he gonna
make my house a new project, you gonna run up and find out who I am
downtown and stuff - make my house a project.
Officer Coe: Why don’t you just come over here, and we’ll talk about
it.
Henry: You know something, I got freedom of speech. I can walk
anywhere I want to. I haven’t committed no crime. You the one being
out of control.
Officer White: Hey, hey.
Officer Coe: Come over here and we’ll talk.
Henry: What’s that?

4

The Parties differ on Coe’s motivation for asking Henry to step closer to the
vehicle, but ultimately Henry remained on his property.
6

Officer White: Can we just explain to you…
Henry: Mm-Hmm..
Officer White: We’re trying to explain to you what - what the issue was,
okay?
Henry: Okay.
Officer White: You’re in an area where there’s quite a few abandoned
houses.
Henry: Okay.
Officer White: And it’s kind of annoying, when like, people are
breaking in…
Henry: Well like I said, I seen lights on the side of my house so I came
out to see – this asshole wanna talk shit.
Officer White: Hold on, hold on. Listen – Listen, the issue wasn’t –
wasn’t that we were shining our light…
Henry: He ain’t have to be rude, though. He was being rude. F- Flat out,
point blank, he was being rude. And that’s unbecoming of him of being
an officer; he’s a plain-out rude person.
Officer White: So I’m not going to be able to explain anything to you
tonight, sir… Huh?
Henry: You know something you can get in your vehicle cuz I can see
you trying to be a asshole too, sarcastically.
Officer Coe: You think he’s an asshole because he’s an officer?
Henry: You are.
Officer Coe: Then come here man, we’ll talk man-to-man.
Henry: You come over here.
7

Officer Coe: Do I have permission to come on your property?
Henry: No you fucking don’t so get the fuck on!
Officer Coe: I can stay right here all night.
Henry: Stay. Dumbass.
Officer Coe: Sounds good.
Henry: Motherfucker. You ain’t gonna…what you gonna do to me. I
ain’t committed no crime. Cite a crime I committed. Cite a crime I
committed. Cite a crime I committed.
Officer Coe: C’mon on.
Henry: What crime have I committed… You come on. You the one
threatening me.
(Defs.’ Mot., ECF #88-7, Cell Video at 1:21-3:43).
Officer Coe testified that he saw a light turn on at a neighbor’s home and told
Henry, “I’m just worried about you bothering the neighbors,” (Dep. of Sean Coe,
Mar. 7, 2018, ECF #88-3, 122:16, PgID 1842; Defs.’ Mot., ECF #88-7, Cell Video
at 3:50-52), to which Henry loudly replied, “Fuck you. Ain’t – man – Ain’t no –
nobody bothering nobody… Y’all are the ones bothering people you punk
motherfuckers.” (Defs.’ Mot., ECF #88-7, Cell Video at 3:50-52.) The line of
statements involving the “threat” then resumed:
Officer Coe: Okay… You done?
Henry: Are you done?
Officer Coe: I’m done.
8

Henry: Well get the fuck on then, bitch. Fuck you…. and your damn
job motherfucker.
Officer Coe: Okay.
Henry: What you – Make my house a project. I want you – You want
to make my house a special project? Bring it on.
Officer Coe: Okay.
Henry: Bring it on.
Officer Coe: Okay.
Henry: Then you gonna find out who I am.
Officer Coe: Okay, is that a threat?
Henry: Yeah! That’s a – that’s a promise it’s a threat! That’s a promise
that it’s a threat because I ain’t did no crime… I haven’t committed no
crime.
(Defs.’ Mot., ECF #88-7, Cell Video at 3:52-4:35).
At this point, Henry had been walking towards his house from the sidewalk
while still yelling at the Officers. Following Henry’s statement, “…that’s a promise
it’s a threat,” Office Coe exited his vehicle and commenced to approach and arrest
Henry at his front door. (ECF #88-11, Dash Video, Camera 1, at 01:04:49; Coe Dep.,
ECF #88-3, 55:19-56:10; 170:9-19.) Officer Coe grabbed Henry by his shirt, who
pulled away causing the shirt to tear off. (Coe Dep., ECF #88-3, 55:14-18, PgID
1775.) Henry had made it to the doorway where he and Officer Coe continued to
struggle, Henry grasping at the doorframe. (Henige Dep., ECF #88-2, 44:16-20,
9

PgID 1519.) Officer White arrived on the porch to assist Officer Coe, and grabbed
Henry around the torso from behind as he “flailed around,” at which point Officer
Coe issued a single shot of Oleoresin Capsicum spray (“OC-spray”) to Henry’s face.
(White Dep., ECF #88-9, 57:5-58:24, PgID 2231-32; Coe Dep., ECF #88-3, 168:21169:6, PgID 1888-89; Defs.’ Mot., ECF #88-7, Dash Video, Camera 1 at 4:474:50).) During the struggle in the doorway, Officer White testified that:
[Heather Williams] was close [to Henry]. She was pulling at us
and, you know, pushing a little bit too…I wouldn’t say she was
actively fighting, not in the same sense [Henry] was…I think I
got a little bit of the [OC-spray]. I think – I think everybody did.
(White Dep., ECF #88-9, 109:5-15, PgID 2283.)
Once Officer Coe administered the OC-spray, Officer White testified that
Henry “head-butted” him, and “it took all three of us to get him pried off that door.”
(White Dep., ECF #88-9, 101:12-16, PgID 2275.) Officer White lifted Henry off
the porch and “assisted” him to the ground. (Henige Dep., ECF #88-2, 59:23-60:6;
171:13.) Officer Henige placed Henry’s hands behind his back and handcuffed him.
(Henige Dep., ECF #88-2, 113:18-20, PgID 1660.) Henry was no longer resisting
and suffered a scraped knee. (Henry Dep., Oct. 8, 2017, ECF #88-8, 108:4, PgID
2025.) Henry was informed that he was arrested for threatening an officer, but was
later charged with “Disorderly Conduct and Disorderly Persons” in violation of
Flint Ordinance Section 31-12 and “Resisting Arrest” under Section 31-1. (White

10

Dep., ECF #88-9, 104:3-14, PgID 2278; Henige Dep., ECF #88-2, 115:2-3, PgID
1661.)
Henry was then transported by Officer White, the only officer in the vehicle,
approximately 2.8 miles to the City of Flint Jail. (Henry Dep., Aug. 13, 2018, ECF
#88-8, 194:2, PgID 2132.) Henry was spitting, wheezing at a high pitch, and rocking
back and forth in the back seat of the police vehicle during the entirety of the ride,
at one point thrashing in seizure-like motions. (Defs.’ Mot., ECF #88-11, Dash
Video, Camera 2, 1:12:53-1:19:15.) Henry claims that he was not provided with
adequate medical care for a seizure he suffered during his transport to the Flint City
Jail. (Id. at 1:16:39-1:17:19). At his deposition, Henry testified that he was unaware
that he had any seizure-like activity until viewing the Dash Video footage. (1st Am.
Compl., ECF #30, ¶62; Henry Dep., Aug. 13, 2013, ECF #88-8, 136:24-137:16.)
Officer White also testified that he was unaware of any seizure until he saw the
footage, nor did he hear any complaints regarding Henry’s handcuffing until after
arriving at the station, when the cuffs were removed. (White Dep., ECF #88-9, PgID
2237-36, 63:6-64:12, 19-25.)
III.

STANDARD OF REVIEW

Summary judgment is appropriate where the moving party demonstrates that
there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). A fact is “material” for purposes of a
11

summary judgment motion where proof of that fact “would have [the] effect of
establishing or refuting one of the essential elements of a cause of action or defense
asserted by the parties.” Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503
F.3d 456, 469 (6th Cir. 2007) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174
(6th Cir. 1984)). A dispute over a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Rule 56(e) identifies affidavits, depositions, and answers to interrogatories
as appropriate items that may be used to support or oppose summary judgment.”
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Of course, [the
moving party] always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Taft Broadcasting Co. v. United States, 929 F.2d 240, 247 (6th Cir.
1991) (internal quotation marks omitted) (quoting Celotex, 477 U.S. at 323). If this
burden is met by the moving party, the non-moving party’s failure to make a showing
that is “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,” will mandate the
entry of summary judgment. Celotex, 477 U.S. at 322. “[A] complete failure of proof
12

concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323.
“The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. The plaintiff must present more than a mere
scintilla of the evidence. To support his or her position, he or she must present
evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt,
226 F.3d 506, 511 (6th Cir. 2000) (internal citations and quotation marks omitted).
The non-moving party may not rest upon the mere allegations or denials of his
pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must
set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.
R. Civ. P. 56(e). “When 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 . . . . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–
587 (1986) (footnote and internal quotations omitted).
In making the determination on summary judgment whether there are genuine
issues of material fact for trial, the court must draw all reasonable inferences in favor
of the non-moving party. See Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir.
2015). “‘The central issue is whether the evidence presents a sufficient disagreement
13

to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010)
(quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005)). At the same
time, plaintiff must produce enough evidence to allow a reasonable jury to find in
his favor by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he
‘mere possibility’ of a factual dispute is not enough.” Martin v. Toledo Cardiology
Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008) (quoting Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). “If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249–50 (internal citations omitted).
Ultimately, the party who bears the burden of proof must present a jury
question as to each element of the claim. See Davis, 226 F.3d at 511. Plaintiff cannot
meet that burden by relying solely on “[c]onclusory assertions, supported only by
[his or her] own opinions.” Arendale v. City of Memphis, 519 F.3d 587, 560 (6th Cir.
2008). Plaintiff must show probative evidence, based “on more than mere
speculation, conjecture, or fantasy,” to prevail. Id. at 601 (quoting Lewis v. Philip
Morris Inc., 355 F.3d 515, 533 (6th Cir.2004)).
All evidence submitted in opposition to a motion for summary judgment must
ultimately be capable of being presented in a form that would be admissible at trial:
The submissions by a party opposing a motion for summary judgment
need not themselves be in a form that is admissible at trial. Otherwise,
14

affidavits themselves, albeit made on personal knowledge of the affiant,
may not suffice, since they are out-of-court statements and might not be
admissible at trial. See Fed. R. Evid. 801(c), 802. However, the party
opposing summary judgment must show that she can make good on the
promise of the pleadings by laying out enough evidence that will be
admissible at trial to demonstrate that a genuine issue on a material fact
exists, and that a trial is necessary. Such “‘evidence submitted in
opposition to a motion for summary judgment must be admissible.’”
Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (quoting
United States Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185,
1189 (6th Cir.1997)). That is why “‘[h]earsay evidence . . . must be
disregarded.’” Ibid. It is also the basis of this court’s repeated emphasis
that unauthenticated documents do not meet the requirements of Rule
56(e).
CareSource, 576 F.3d at 558-59 (internal citations omitted).
A court “may not make credibility determinations or weigh the evidence” in
ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000).
IV.

ANALYSIS

Plaintiffs argue that the Officers are not entitled to qualified immunity on their
claims of wrongful arrest, excessive force, and First Amendment retaliation.
Plaintiffs bear the burden of demonstrating that the Officers are not so
entitled. Haynes v. City of Circleville, 474 F.3d 357, 362 (6th Cir. 2007). The Sixth
Circuit recently explained:
Responding to the many and varied suits brought under § 1983, the
judiciary recrafted that limited version of the doctrine of qualified
immunity in an effort to protect public officials “from undue
interference with their duties and from potentially disabling threats
of liability.” Elder v. Holloway, 510 U.S. 510, 514, 114 S. Ct. 1019,
15

127 L.Ed.2d 344 (1994) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 806, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)). We therefore
no longer “attempt[ ] to locate [the qualified immunity] standard in
the common law as it existed in 1871,” Ziglar v. Abbasi, ––– U.S.
––––, 137 S. Ct. 1843, 1871, 198 L.Ed.2d 290 (2017) (Thomas, J.,
concurring), but instead attempt to determine whether a defendant,
by his conduct, “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have
known,” Harlow, 457 U.S. at 818, 102 S. Ct. 2727.
Jackson v. City of Cleveland, 920 F.3d 340, 368 (6th Cir. 2019).
A. Wrongful Arrest
The Officers' conduct in arresting Henry is protected by qualified immunity
because the Officers did not violate Henry's rights. “In order for a wrongful arrest
claim to succeed under § 1983, a plaintiff must prove that the police lacked probable
cause. A police officer has probable cause if there is a fair probability that the
individual to be arrested has either committed or intends to commit a crime.” Fridley
v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002) (internal quotation and citations
omitted). A police officer determines the existence of probable cause by examining
the facts and circumstances within his knowledge that are sufficient to inform “a
prudent person, or one of reasonable caution,” that the suspect “has committed, is
committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31,
37 (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). In Devenpeck v. Alford, 543 U.S. 146,
16

154 (2004), the Supreme Court clarified that the constitutionality of an arrest does
not “depend[] on whether the arresting officer states the reason for the detention and,
if so, whether he correctly identifies a general class of offense for which probable
cause exists.” Moreover, precedent “make[s] clear that an arresting officer's state of
mind (except for the facts that he knows) is irrelevant to the existence of probable
cause.” Id. at 153. “That is to say, his subjective reason for making the arrest need
not be the criminal offense as to which the known facts provide probable
cause…[T]he fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification for the officer's
action does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.” Id.
The Officers had probable cause to arrest Henry for the ordinance violation
with which he was later charged, Section 31-12(a)(5), Disorderly Conduct and
Disorderly Persons, which states in relevant part:
(a) A person is a disorderly person if the person does any of the
following:
…..
(5) Persists in disturbing the public peace and quiet by loud or
aggressive conduct, having once been clearly informed by persons
affected that he is in fact unreasonably causing such a disturbance,
provided, however, that notice need not be given when such persons
affected reasonably believe that to do so would constitute a risk to their
personal safety.
Flint City Code of Ordinances, §31-12(a)(5).
17

The Officers had probable cause to arrest Henry for the ordinance violation
with which he was later charged, Section 31-12, Disorderly Conduct and Disorderly
Persons. The Parties do not dispute that Henry was yelling outside in his front yard
at 1 a.m., thus satisfying the element of the violation that Henry’s conduct could
satisfy – “disturbing the public peace and quiet by loud or aggressive conduct.” Ord.
§31-12(a)(5). Plaintiff Henry indeed admits that that he was “talking with a loud
voice” and that his neighborhood is like an “echo-chamber:”
Q (Defense Attorney Guss): Would you admit yelling and swearing at
1:00 in the morning in a residential area is a disturbance?
…
A (Henry): I wasn’t yelling like that, but, yes, yelling and disturbing
like arargh, like that’s yelling and disturbing. The way I was, I was
talking with a loud voice, which I do all the time as you can see in here,
and right by my house is like an echo chamber, okay. If you’re ever –
You’ve never been by my house because you stay out here, but it’s an
echo chamber.
Q: Okay. So your yelling or your loud voice with all the swearing would
be like an echo chamber in your residential neighborhood?
A: Yeah.
(Henry Dep., Oct. 10, 2017, ECF #88-8, 88:1-14, PgID 2005.)
The ordinance also requires the violator to be “clearly informed by persons
affected that he is in in fact causing such a disturbance…” Id. Defendants argue that
this element is fulfilled by the Officer Coe telling Henry that he is concerned that

18

Henry is disturbing the neighbors. Indeed, Coe saw a light turn on at a nearby
neighbor’s home during the course of the verbal discord.
To reiterate, see Section II, Facts, pp. 6-7, supra, Officer White had tried time
and again to calm down Henry and explain the police concerns about the area where,
in the middle of the night, they have been directed by a citizen to look for a felon –
an area with quite a few abandoned houses where people had been breaking in.
Plaintiff Henry’s response was to call an officer “this asshole,” and Officer White
interjected, saying “hold on, hold on,” trying to explain the issue. However, White
could not have a conversation with Henry and asked him: “So I’m not going to be
able to explain anything to you tonight, sir…?” but Henry still was not willing to deescalate. To the contrary, Plaintiff Henry responded by calling Officer White an
“asshole,” Officer Coe a “dumbass,” called them both “motherfuckers,” and directed
them to “get the fuck on!” After, Officer Coe said, “I’m done,” in response to Henry
asking, “Are you done?” Plaintiff Henry then replied: “Well, get the fuck on then,
bitch. Fuck you…and your damn job, motherfucker.” Supra, pp. 8-9. The Officers’
job at that time, that Henry’s tirade was interfering with, was to find and arrest the
wanted felon that the citizen in their car had stated was in that venue.
Henry continued: “Bring it on…Then you gonna find out who I am!” Officer
Coe responded: “Okay, is that a threat?” Henry answered: “Yeah! That’s a promise
it’s a threat! That’s a promise it’s a threat because I ain’t did no crime!” At that point,
19

the Officers construed Henry’s threat speech as a threat to them and their continuing
investigation seeking a wanted felon. Although Plaintiff Henry was walking towards
his house, he was still yelling at one a.m. in that neighborhood, verbalizing a threat
and the Officers did not know whether the highly agitated Plaintiff had firearms in
the house: – a highly agitated person retreating into his residence can be reasonably
seen as a dangerous situation. (See Dep. of Deputy Chief Devon Bernritter, June 21,
2018, ECF #88-10, PgID 2392, 73:14-21.)
Therefore, the Officers had probable cause to arrest Henry for violating
Section 31-12(a)(5) (“…disturbing the public peace and quiet by loud or aggressive
conduct…), and there was no violation of his constitutional rights, despite any
statement that Henry was under arrest for “threatening an officer” and charged with
an infraction of Section 31-12 after-the-fact.5 See Devenpeck, 543 U.S. at 154.
B. Excessive Force
Plaintiffs make several allegations regarding the Officers’ use of excessive
force in violation of the Fourth Amendment, including the use of OC-spray on
Henry, Williams’ incidental contact with the OC-spray used on Henry, the failure to

5

The Parties spend much time discussing the content and accuracy of Officer Coe’s
incident report and all three Officers’ Internal Affairs reports. However, according
to the undisputed facts and viewing those disputed in the light most favorable to
Henry, any inconsistency between these reports and Henry’s mobile phone video are
inapposite to whether the Officers had probable cause to arrest Henry for violating
Section 31-12 and whether excessive force was used.
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loosen Henry’s handcuffs, and the failure to provide medical care when Henry
allegedly had a seizure while being transported.
1. Use of OC-Spray
Whether the three Officers violated Henry’s right to be free from excessive
force is a question that must be analyzed under an “objective reasonableness”
standard. Graham v. Connor, 490 U.S. 386, 395 (1989). This standard requires
courts to consider “the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 396 (citation omitted).
The general consensus among Sixth Circuit caselaw is that officers cannot use
force, including pepper spray, on a detainee who has been subdued, is not told he is
under arrest, or is not resisting arrest. Grawey v. Drury, 567 F.3d 302, 314 (6th Cir.
2009). But that was clearly not the case with Henry. There is no genuine issue of
material fact that Henry was resisting arrest when Officer Coe made the decision to
use the OC-spray. Henry’s alleged crime was not severe; he was ultimately charged
with disturbing the peace. He was, however, threatening the Officers’ and his own
safety by struggling to evade Officer Coe, having been told to put his hands behind
his back four times in total (Ex. G, Video at 4:38, 5:15; 5:24; 5:28), and attempting
to retreat inside his house when Officers Coe and White were making an effort to
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arrest him. All three Officers and Williams testified that Henry was resisting arrest.
(Coe Dep. at 15:19-22; 51:21-25; 55:14-18; 126:20-22; Henige Dep. at 43:14-16;
44:16-20; White Dep. at 101:12-16; Williams Dep., ECF #88-15, 60:23-25, PgID
2469.) Henry’s video footage indicates he was resisting arrest. (Defs.’ Mot., Ex. G.,
Henry Video, 4:39-5:20.) It was not until after Officer Coe used the OC-spray that
the Officers were able to move Henry off the porch, handcuff him, and place him
under arrest.
Moreover, the Officers did not violate Plaintiff Heather William’s
constitutional rights. There is no allegation that the OC-spray was directed at
Williams. Williams testified at her deposition that she was not exposed to much
spray, her eyes bothered her “a little” afterwards, and admitted that she was in close
proximity to Henry and the Officers yet did not try to move away. (Williams Dep.,
ECF #88-15, 66:21-25, PgID 2475, 76:1-8, PgID 2485.) This inadvertent spraying
of Williams when Officer Coe issued one spray to Henry did not violate Williams’
Fourth Amendment rights. See Wilkins v. City of Royal Oak, No. 04-cv-73276, 2005
U.S. Dist. Lexis 42474, at *27-28 (E.D. Mich. Aug. 17, 2005) (“Defendants'
inadvertent and ‘light’ pepper-spraying of Tyeesha Emerson while they were
pepper-spraying Carvel Wilkins did not violate Tyeesha Emerson's Fourth
Amendment rights.”).

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2. Handcuffing Claim
The Officers are entitled to qualified immunity regarding the application of
the handcuffs as well. The Fourth Amendment prohibits unduly tight or excessively
forceful handcuffing during the course of a seizure. Morrison v. Bd. of Tr. of Green
Twp., 583 F.3d 394, 400 (6th Cir. 2009). This right was “clearly established” for
qualified immunity purposes at the time of Henry’s arrest. Id. at 401. In order for a
handcuffing claim to survive summary judgment, a plaintiff must offer sufficient
evidence to create a genuine issue of material fact that: (1) he or she complained that
the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the
plaintiff experienced “some physical injury” resulting from the handcuffing. Id.
(citing Lyons v. City of Xenia, 417 F.3d 565, 575–76 (6th Cir. 2005)).
Officer White testified that Henry did not complain about the handcuffs in the
police vehicle. Officer White did not recall Henry complaining about the handcuffs
until they arrived at the station – which were then removed – contrary to Plaintiff’s
characterization of White’s testimony. (White Dep., ECF #88-9, 62:14-24, 64:1725, PgID 2236, 2238; Pls.’ Resp., ECF #104, PgID 3548.) Miller v. Sanilac Cnty.,
606 F.3d 240, 252 (6th Cir. 2010) (“The District Court properly concluded that
Deputy Wagester did not use excessive force in handcuffing Miller because Miller
did not complain about the handcuffs until they arrived at the jail, at which point
they were removed.”).
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There was evidence that Henry complained about the handcuffs before he and
Officer White departed for the jail, while Officer White was still outside the vehicle
taking Henry’s information. Henry can be heard on the Dash Video making a
statement in the back seat of the car that “the thing is cutting into…my hand.” (Def.’s
Mot., ECF #88-11, Ex. K, 1:10:13, 1:11:18.) The test is whether an officer's conduct
is objectively unreasonable. Lyons at 575–76. Even if Officer White heard the
“cutting into…my hand” statement from outside the vehicle, it is reasonable that he
would not appreciate that this statement would require him to bring another officer
over to check the tightness before driving Plaintiff the very short distance to the jail.
Officer White was alone in taking the large, resisting Plaintiff to the station: the other
two officers were with the cooperating citizen in the back of their car. While Henry
testified that there were wounds on his wrists that took three weeks to heal, his claim
that he had photos of the alleged wrist injuries was not substantiated: no such photos
were included among the exhibits to this Motion, nor have any been produced to
Counsel for either Party. (See Henry Dep., Oct. 10, 2017, ECF #88-8, 99:15-100:5,
106:18-22, PgID 2016-17, 2023.) While the incident report taken by Officer Bigelow
from Plaintiff five days after the arrest stated that Henry indicated a sore left wrist,
Officer Bigelow noted only a scrape on Henry’s knee, but he did not see any wrist
injuries. (Defs.’ Mot., ECF #88-18, PgID 2514.)

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Therefore, given the single in-car statement about his tight handcuffs, his short
trip to the jail, and his failure to include the photos, the Court concludes that Plaintiff
Henry’s police misconduct-excessive force handcuffing allegation does not survive
summary judgment.
3. Failure to Provide Medical Care
Henry also claims that he suffered a seizure in the back of the police vehicle
while Officer White was transporting him to the jail. Assuming arguendo that the
Fourth Amendment standard applies, as the Sixth Circuit in Esch v. Cty. of Kent, 699
F. App'x 509, 514 (6th Cir. 2017) did, the claim would fail. Officer White testified
that he had no knowledge of the alleged seizure at the time. He was the only officer
in the vehicle transporting Plaintiff Henry and, as the driver, he was not watching
the back of the car, which was dark. Henry did not inform Officer White, the other
Officers, or any jail personnel of a seizure or possibility of a seizure before, during,
or after the fact. Henry also testified that he was not aware he had a seizure until he
subsequently saw the Dash Video footage, so he could not have requested medical
assistance from Officer White that White ignored. (Henry Dep., Oct. 10, 2017, ECF
#88-8, 136:24-137:16.) It is also worth noting that Henry has never been diagnosed
with a seizure disorder, sought treatment for a seizure disorder, or been prescribed
anti-seizure medications, before or after the incident at issue. (Id.)

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Accordingly, the Court finds that there was no violation of Henry’s Fourth
Amendment rights for failure to provide medical care.
C. First Amendment Retaliation
Because the Officers had probable cause to arrest Henry for disorderly
conduct, there was no violation of his First Amendment rights. Therefore, the
Officers are entitled to qualified immunity.
To establish a retaliatory arrest claim, a plaintiff must prove: (1) engagement
in protected conduct; (2) an adverse action; and (3) a causal connection between
elements one and two – that is, the adverse action was motivated at least in part by
the plaintiff’s protected conduct. Kennedy v. City of Villa Hills, Ky., 635 F.3d 210,
217-218 (6th Cir. 2011). Once the plaintiff “raises an inference that the defendant’s
conduct was motivated in part by plaintiff’s protected activity, the burden shifts” to
the defendant to show that he “would have taken the same action in the absence of
the protected activity.” Id. at 218-19. Once Plaintiff Henry made “threats,” the issue
becomes whether the threats were of violence or merely to file a complaint
“downtown” of some sort in response to Officer Coe’s comment regarding the
“special project.” However, Henry’s continued loud conversation at one a.m.,
disturbing the neighborhood and interrupting the Officers’ investigation, crossed the

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line from protected First Amendment speech.6 This prompted Officer Coe to exit his
police vehicle and commence Henry’s arrest. Henry had made the “promise” of a
threat, and Officer Coe told Henry that was he being arrested for threatening a police
officer. On the other hand, a reasonable juror could conclude that Officer Coe’s
actions were motivated in part by Henry’s protected speech, thus establishing the
elements of a First Amendment retaliation claim.
However, the Supreme Court in Reichle v. Howards, 566 U.S. 658, 665 (2012)
made it clear that the Officers remain entitled to qualified immunity because the
right to be free from a retaliatory arrest that is otherwise supported by probable cause
is not clearly established:
Howards contends that our cases have “settled” the rule that, “‘as a
general matter[,] the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions’” for his
speech. But we have previously explained that the right allegedly
violated must be established, “‘not as a broad general proposition,’”
but in a “particularized” sense so that the “contours” of the right are
clear to a reasonable official. Here, the right in question is not the
general right to be free from retaliation for one's speech, but the
more specific right to be free from a retaliatory arrest that is
otherwise supported by probable cause. This Court has never held
that there is such a right.

6

See King v. Ambs, 519 F.3d 607, 615 (6th Cir. 2008) (“[Plaintiff] repeatedly
interfered with an ongoing criminal investigation….[I]t is clear that [plaintiff] was
arrested for the act of disrupting the officer’s investigation, and not for the content
of his speech.”).
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(internal citations omitted) (emphasis added). See also Marshall v. City of
Farmington Hills, 693 F. App’x 417, 425-427 (6th Cir. 2017) (affirming qualified
immunity from retaliatory arrest claim where right was not clearly established if
probable cause existed).
Plaintiffs have provided no argument that Reichle does not govern here.
All of the authority cited by Plaintiffs pre-date Reichle, which clearly contradicts
Plaintiffs’ argument that the Court must consider the motives of the Officers
where probable cause otherwise existed to arrest to Henry in a qualified immunity
analysis. Therefore, the Officers are entitled to qualified immunity on Count III
because Plaintiffs have not demonstrated that the Officers violated a clearly
established constitutional right.
V.

CONCLUSION

Based on the reasons stated above, the Court GRANTS Defendants Michael
Henige, Nikolas White, and Sean Coe’s Motion for Summary Judgment.
SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Court Judge

Date: June 20, 2019

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