Craft et al v. Billingslea et al

Filing 224

MEMORANDUM OPINION and ORDER Denying Plaintiffs' 183 MOTION for Summary Judgment , Granting in Part and Denying in Part City Defendants' 181 MOTION for Summary Judgment , Granting in Part and Denying in Part Defendant Billingslea's 151 Motion for Summary Judgment Errata Sheet Signed by District Judge Gershwin A. Drain. (TMcg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D’MARCO CRAFT, ET AL.,
Plaintiffs,

Case No. 17-cv-12752

v.

U.S. DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

RICHARD BILLINGSLEA, ET AL.,
Defendants.                           
______________                              /      

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [#183], GRANTING IN PART AND DENYING IN
PART CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[#181], GRANTING IN PART AND DENYING IN PART DEFENDANT
BILLINGSLEA’S MOTION FOR SUMMARY JUDGMENT [#151]
I. INTRODUCTION
On August 22, 2017 Plaintiffs D’Marco Craft (“Craft”) and Michaele Jackson
(“Jackson”) commenced this action against nine City of Detroit police officers, a
Detroit Fire Department medic, and the City of Detroit. ECF No. 72. Defendant
Richard Billingslea (“Billingslea”) is represented separately from the ten other
Defendants (collectively referred to as the “City Defendants”).1 Plaintiffs filed their
Third Amended Complaint on January 30, 2019 pursuant to 42 U.S.C. § 1983,

1

The City Defendants include Hakeem J. Patterson, Yossif Mana, Antoine Hill,
Glenn Bines, David Mays, II, Naim Brown, Michael Bailey, Randall Craig, Bryan
Moore, and the City of Detroit.
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alleging that Defendants violated their First, Fourth, and Fourteenth Amendment
rights during encounters in April 2016, June 2016, December 2016, March 2017,
and May 2017. Id.
Presently before the Court are Plaintiffs’ Motion for Summary Judgment, the
City Defendants’ Motion for Summary Judgment, and Defendant Billingslea’s
Motion for Summary Judgment. ECF Nos. 151, 181, 183. Each party filed their
Responses in Opposition to the respective motions. ECF Nos. 160, 164, 186, 191.
Reply Briefs were also filed by each party. ECF Nos. 172, 174, 193, 195. A hearing
on this matter was held on March 6, 2020. For the reasons that follow, the Court
will DENY Plaintiffs’ Motion for Summary Judgment [#183], GRANT IN PART
and DENY IN PART the City Defendants’ Motion for Summary Judgment [#181],
and GRANT IN PART and DENY IN PART Defendant Billingslea’s Motion for
Summary Judgment [#151].
II. FACTUAL BACKGROUND
Plaintiffs’ Third Amended Complaint addresses about five different
interactions between Plaintiffs and certain Defendants throughout 2016 and 2017.
The majority of the counts alleged in the Complaint stem from an encounter on May
31, 2017.

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A. May 2017 Incident
In the early hours of May 31, 2017, Plaintiffs Jackson and Craft were driving
home from an event and stopped at a Mobil Gas Station, located at 17046 Harper
Avenue in Detroit, Michigan.
PageID.9585.

ECF No. 183, PageID.9329; ECF No. 186,

Plaintiffs wanted to purchase cigarettes at the gas station’s

convenience store. Id. Defendants Billingslea and Patterson were on patrol that
evening and had independently stopped at the gas station so that Billingslea could
use the restroom. ECF No. 186, PageID.9589.
At approximately 1:30 a.m., Craft exited his vehicle and walked into the gas
station convenience store. ECF No. 183, PageID.9329; ECF No. 186, PageID.9585;
ECF No. 151, PageID.5132. Upon entering the store, Craft noticed Billingslea
inside and turned around to leave. Id. Billingslea yelled after Craft, who responded
by extending his middle finger to Billingslea and exiting the store. Id. As Craft
walked away, Billingslea walked to the front of the convenience store and stood in
front of the door. Id. Craft started to walk back towards the car he arrived in, but
quickly turned around and attempted to re-enter the store. Id. The Defendants state
that Craft then approached Billingslea and “st[uck] his hand in his face.” ECF No.
186, PageID.9586. Billingslea denied Craft entry into the store. ECF No. 183,
PageID.9329. Billingslea testified in his deposition that he “stopped Craft from
entering the store because, for safety, he wanted to keep everything in front of him
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so that he could see both Craft and his partner, Patterson.”

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ECF No. 151,

PageID.5132. Billingslea told Craft to leave and purchase cigarettes at a different
gas station, and then walked away from the door and back into the convenience store.
ECF No.183, PageID.9329.
Once Craft returned to the vehicle and spoke with Jackson, Jackson exited the
vehicle and began walking towards the store. Id. Billingslea returned to stand in the
doorway. Id. Jackson attempted to enter the store, but Billingslea was standing in
the doorway. ECF No. 183-2. The parties dispute who initiated contact first in the
doorway; Defendants argue that Jackson barged into Billingslea in an attempt to get
past him. ECF No. 186, PageID.9586; ECF No.151, PageID.5133. Jackson states
that Billingslea made contact first by grabbing Jackson.

ECF No. 181-11,

PageID.8939. Billingslea and Jackson engaged in their first physical altercation,
with Billingslea grabbing Jackson and eventually taking him down to the ground
outside of the store. ECF No. 183, PageID.9329; ECF No. 186, PageID.9585.
Patterson exited the police vehicle and assisted Billingslea in holding Jackson down
on the ground. Id. The officers never handcuffed Jackson or placed him under
arrest. Instead, the officers allowed him to stand back up after about thirty seconds.
Id.; See ECF No. 183-3.
As Billingslea and Patterson restrained Jackson outside the gas station, Craft
began recording the encounter on his cell phone. Id. Billingslea yelled at Craft to
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back away from the area. Id. The parties dispute whether Craft backed up enough
in response to Billingslea’s command. Id. Billingslea then advanced towards Craft
and continued to tell him to back up. Id. At one point, Billingslea stated “I’m about
to mace you,” and the two yelled back and forth. Id. The parties also disagree
whether Billingslea made contact with Craft or his cell phone during this encounter.
Id.
Next, Billingslea turned back towards Jackson’s and Patterson’s location. Id.
Billingslea yelled again at Jackson, who walked briefly away from where he was
taken down, towards the gas pumps, and then again towards the store, all while
yelling back at Billingslea. Id.

Billingslea followed behind Jackson during this

route around the gas pumps. Id.
Jackson re-entered the gas station convenience store and Billingslea followed.
Id. In the store, Billingslea attempted to grab Jackson’s arm. Id. Jackson asked the
store clerk for cigarettes. Id. At the same time that Jackson engaged with the store
clerk, Billingslea moved again and grabbed Jackson’s left arm. Id. Jackson then
turned around and swung his arm at Billingslea, making contact with his upper torso
and possibly his face. Id. Patterson and Craft also entered the store at about this
time, and Craft continued to record the incident. Id.
Billingslea then took out his mace and sprayed Jackson in his face. Id. In
response, Jackson turned back around away from Billingslea and towards the store
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counter. Id. Billingslea moved closer to Jackson and grabbed him from behind by
his head and shoulders, lifted him off of the ground, and spun him down to the floor.
Id. Billingslea next got on top of Jackson’s back and attempted to handcuff him. Id.
Patterson continued to watch from near the doorway. Id.
During this second physical altercation between Billingslea and Jackson,
Billingslea threw three punches to the right side of Jackson’s head. Id. Billingslea
also delivered at least one knee strike to Jackson’s left midsection. Id. Jackson was
on his hands and knees at this point, struggling back with Billingslea. Id. After
these strikes, Patterson walked over to Craft, who was still recording the incident,
and told him to back up. Id. Throughout the video, Craft is depicted as recording
the situation, being told to leave or being physically moved outside of the store, and
then returning inside to continue recording. Id.
About ninety seconds after the second takedown, additional officers arrived
on the scene, including Defendants Hills, Bines, and Brown. Id. Brown, Billingslea,
and Bines eventually handcuffed Jackson, who was by then lying face-down in the
store’s aisle. Id. Jackson continued to engage in conversation with the officers once
he was handcuffed, often yelling and rolling back and forth on his side and stomach.
ECF No. 183-4 at 1:57-2:38. There were multiple instances where Brown and other
officers had to grab Jackson and push him back on to his stomach. Id. Jackson was

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eventually brought to his feet, escorted out of the store, and placed in the back of a
police vehicle. ECF No. 183, PageID.9333.
At the same time as Jackson’s handcuffing, Billingslea and Patterson told the
additional officers to remove Craft from the scene. Id. Brown and Hill approached
Craft, and Hill grabbed Craft’s cell phone from his hand and removed him from the
store. ECF No. 151, PageID.5136. Craft was smoking a cigarette outside of the gas
station store when he was approached by Defendant Bailey, who told Craft to put
out his cigarette. ECF No. 151, PageID.5137. Defendants then state that Craft was
detained in the back of a police vehicle “to determine if he had interfered with the
officers while they were trying to arrest Jackson.” Id. Shortly thereafter, Bailey told
Craft that he was free to leave, but Craft responded that he did not want to leave
without his cell phone. Id. Bailey entered the store and spoke with Billingslea, who
produced Craft’s cell phone from his pocket. Id. Bailey and Billingslea determined
that the phone needed to be placed on evidence to preserve the video and could not
be returned to Craft at that time. Id.
Meanwhile, Jackson had been placed in the rear seat of a police vehicle. ECF
No. 183, PageID.9333. A City of Detroit policy requires officers to flush a maced
individual’s eyes within fifteen minutes of the mace spray.

Id.

Billingslea

approached Jackson and told him to lean out of the car so that he can flush his eyes.
Id. Jackson instead replied that he wanted an ambulance. Id. The parties dispute
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whether Jackson refused to have his eyes flushed at that time; Jackson argues that
he was not explicitly refusing help and just wanted an ambulance, while Defendants
allege that he responded “no, I’m good,” to the request to flush his eyes. Id.; ECF
No. 151, PageID.5139. Shortly thereafter, the paramedic Defendant Moore showed
up, inspected Jackson, determined that he did not need stitches, and left the scene.
Id. Jackson was then transported to the hospital where he was evaluated, treated,
and released. Id.
As a result of this encounter, Billingslea was charged with multiple counts in
Michigan state court. Id. He pled no contest to one count of obstruction of justice
and one count of aggravated assault. Id.
B. April 2016 Incident
Craft claims that on April 27, 2016, he was standing in the driveway of a
residence located at 5920 Audubon Road when he was approached by Defendants
Billingslea, Patterson, and Mana. ECF No. 72, PageID.939. Defendants assert that
Craft was illegally walking in the street in front of the residence and, upon spotting
the Defendants, “fled toward a driveway.” ECF No. 151, PageID.5129. The
Defendants claim that Craft was “clenching the right side of his shirt,” which raised
suspicion about the possession of a weapon. Id. The officers detained and frisked
Craft. Id. Craft asserts that the officers physically assaulted him with “at least 3-4

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knee strikes.” ECF No. 72, PageID.940. As a result of this incident, Craft was
charged with disorderly conduct and inciting a riot. Id. at PageID.941.
On June 6, 2016, Craft pled not guilty to these charges, and on June 27, 2016,
the charges were dismissed as no arresting police officer appeared at the trial. Id.
C. June and/or July 2016 Incidents
First, Craft alleges that “on or about June or July of 2016,” he was standing in
the area of Harper and Cadieux when Billingslea approached him. ECF No. 72,
PageID.941. Craft states that Billingslea ran towards him, kicked in his general
direction without making contact with Craft’s person, and then waived his hands in
front of Craft’s face. Id. Craft alleges that Patterson watched and did not act or
intervene. Id. Defendants state that Patterson was present but never got out of the
squad car. ECF No. 181, PageID.8184.
Second, Craft alleges that around the same time period, Billingslea and
Patterson detained and searched Craft unlawfully.

ECF No. 72, PageID.942.

Defendants state that Craft “did not reference this incident in his deposition when he
was asked about all interactions he has had with the Detroit Police,” ECF No.181,
PageID.8184, and that “[n]o record of this interaction with Craft exists,” ECF No.
151, PageID.5129.

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D. December 2016 Incident
Craft alleges that he was again searched and detained in December 2016 by
Billingslea and Patterson at the same Mobil Gas Station as the May 2017 incident.
ECF No. 72, PageID.942. Craft’s brother, Darrius, was allegedly also searched and
detained. Id. Similar to the June and July incidents, the Defendants state that there
is no record of this interaction and that no facts have been developed regarding this
allegation. ECF No. 151, PageID.5155.
E. March 2017 Incident
Craft states that on March 14, 2017, he was again searched and arrested by
Billingslea, Patterson, Mana, Hill, Mays, and Bines. Shortly after Craft entered his
vehicle, which was parked in front of his mother’s house, the officers instructed
Craft to exit his car. ECF No. 72, PageID.942. Craft states that the Defendants
physically attacked and detained him while also searching his vehicle. Id. While
nothing illegal was discovered on his person or in his vehicle, Craft was arrested,
jailed, and charged with disorderly conduct. Id. Defendants state that Craft was
yelling and swearing at the officers, which gave them probable cause to arrest him
for disorderly conduct. ECF No. 181, PageID.8208.
Based on a request and motion to dismiss by the prosecuting attorney, the
disorderly conduct charge was dismissed in its entirety on April 21, 2017. ECF No.
72, PageID.943.
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III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if ‘there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The court must view the facts,
and draw reasonable inferences from those facts, in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No
genuine dispute of material fact exists where the record “taken as a whole could not
lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court
evaluates “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52.
IV. DISCUSSION
Plaintiffs, the City Defendants, and Defendant Billingslea have each filed
motions for summary judgment addressing some or all of the seventeen counts in
Plaintiffs’ Third Amended Complaint. All of Plaintiffs’ claims arise under 42 U.S.C.
§ 1983 for violations of the First, Fourth, and Fourteenth Amendments, as well as
supervisory and municipal liability. In their respective motions, Plaintiffs seek
summary judgment on five counts (Counts I, V, X, XI, and XVII), City Defendants
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on fifteen counts (Counts I through XIII, XVI, and XVII), and Defendant Billingslea
on fourteen counts (Counts I, II, III, V through XIV, and XVI). Defendants argue
that they are entitled to qualified immunity on all of Plaintiffs’ claims. The qualified
immunity standard and each count is addressed in turn below.
A. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).

Qualified immunity provides government officials

“breathing room to make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the law.” Messerschmidt v.
Millender, 565 U.S. 535, 546 (2012) (internal citations and quotation marks
omitted). “[W]hether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
‘objective legal reasonableness’ of the action . . . assessed in light of the legal rules
that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483
U.S. 635, 639 (1987) (citation omitted).
To determine whether a police officer is entitled to qualified immunity, the
Court applies a two-prong test: “(1) whether the facts, when taken in the light most
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favorable to the party asserting the injury, show the officer’s conduct violated a
constitutional right; and (2) whether the right violated was clearly established such
‘that a reasonable official would understand that what he is doing violates that
right.’” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (citation omitted).
“This inquiry turns on the ‘objective legal reasonableness of the action, assessed in
light of the legal rules that were clearly established at the time it was taken.’”
Pearson, 555 U.S. at 243–44 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
A qualified immunity determination will be incorporated in the analysis for
each count and defendant involved. The Court must view the facts in the light most
favorable to Plaintiffs Jackson and Craft, the parties asserting the injury. If a genuine
dispute of material fact exists regarding a clearly established right, summary
judgment on qualified immunity grounds will be denied.
B. Fourth Amendment Excessive Force (Count I)
To answer the question of whether a defendant’s use of force violated the
Fourth Amendment “turns on whether [their] actions are objectively reasonable in
light of the facts and circumstances confronting them, without regard to [their]
underlying intent or motivation.” Kent, 810 F.3d at 390 (internal quotation marks
omitted). “The reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
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Factors to consider are: (1) the severity of the crime, (2) whether the suspect
poses an immediate threat to the safety of the officers or others, and (3) whether the
suspect is actively resisting arrest or attempting to flee. Id. “The ultimate question,
however, is whether the totality of the circumstances justifies a particular sort of
seizure.” Kent, 810 F.3d at 390 (internal quotation marks omitted). The district
court “must take into account the fact that police officers are often forced to make
split-second judgments in circumstances that are tense, uncertain, and rapidly
evolving about the amount of force that is necessary in a particular situation.” Id.
1. Defendant Billingslea
Plaintiff Jackson seeks summary judgment against Defendant Billingslea on
Count I, alleging excessive force in violation of the Fourth and Fourteenth
Amendments. Specifically, Jackson claims that Billingslea used excessive force
four separate times: (1) “when he slammed Jackson into the ground on his first
attempt to enter the gas station,” (2) “when he maced Jackson,” (3) “when he used a
chokeslam to take Jackson to the ground,” and (4) “when he kneed and punched
Jackson after he had already slammed him to the ground.”

ECF No. 183,

PageID.9380. Separately in his cross-motion for summary judgment, Billingslea
argues that any force utilized was objectively reasonable under these circumstances
and therefore summary judgment will be granted in his favor.

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Jackson and Billingslea’s first altercation began when Jackson tried to enter
the gas station convenience store while Billingslea stood in front of the door,
attempting to prevent entry.
PageID.9329.

See ECF No. 151, PageID.5133; ECF No. 183,

Billingslea argues that Jackson “barges right into” him, which

Billingslea believes was an assault, although Jackson stated in his deposition that he
and Billingslea did not make physical contact prior to Billingslea grabbing him by
the shirt and pushing him out the door. The video of the incident does not clearly
reveal the veracity of one party’s narrative over the other, as the altercation occurs
within seconds. See ECF No. 183-2 at 1:36. Additionally, Jackson was not told he
was under arrest until after all four alleged uses of excessive force, contradicting
Billingslea’s claims that he needed to subdue Jackson after “active resistance” to
arrest. ECF No. 160, PageID.5221. It is evident that the facts regarding force used
during the altercations between Jackson and Billingslea are heavily disputed.
Billingslea’s conduct, as depicted on the videos, was not clearly or objectively
reasonable as to shield him from liability under qualified immunity. These issues,
therefore, are more appropriately left for the jury to resolve, demonstrating that
summary judgment is inappropriate at this stage for either party.
2. Defendants Patterson and Brown
Defendants Patterson and Brown separately move for summary judgment
against Plaintiff Jackson as to this count, arguing that the force used was necessary

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to assist Billingslea as he took Jackson down outside of the gas station (Patterson)
and then inside the gas station after he was handcuffed (Brown). In response,
Jackson asserts that both Defendants acted unreasonably and violently as they
attempted to hold him down on the ground.
As for Defendant Patterson, each party again presents two starkly contrasted
accounts, and both cite to Lyons as support for their argument. Lyons v. City of
Xenia, 417 F. 3d 565 (6th Cir. 2005). In Lyons, the Sixth Circuit reversed the district
court’s denial of qualified immunity, holding that the officers’ struggle to subdue a
woman in her home, including a tackle to the ground, was reasonable under the
circumstances. Id. at 577. Patterson analogizes himself to the responding officer in
Lyons, who was “responding to a distressed call for backup,” witnessed the plaintiff
and officer “screaming at each other,” and reasonably tackled the plaintiff to the
ground in response. Id. In his deposition, however, Patterson states that he was
“sitting in the car, s[aw] the scuffle at the door, so [he] immediately went to assist
[his] partner.”

ECF No. 181-17, PageID.9023.

Unlike the officer in Lyons,

Patterson witnessed the interactions precipitating the force, suggesting that he had
enough context to determine that force was being disproportionately wielded by his
partner. Under these facts, a jury could find that the force Patterson used with
Billingslea to tackle Jackson to the ground and hold him there was unjustified and
excessive. Summary judgment against Patterson is therefore denied.
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Defendant Brown, on the other hand, arrived on the scene as backup after
receiving “a call of an assault on a police officer.” ECF No. 181, PageID.8194.
Jackson alleges that Brown “violently flipp[ed] Jackson over multiple times when
he was handcuffed and subdued” on the floor of the gas station convenience store.
ECF No. 191, PageID.10187. In the light depicted by Brown’s body camera video,
Brown’s uses of force do not appear unreasonable under the circumstances. Jackson,
while handcuffed, continually attempts to roll onto his side or stomach with
increasing agitation, despite Brown’s commands to the contrary. Brown used a
proportional amount of force to keep Jackson still and prevent him from using his
legs, especially as the situation could have escalated again when Billingslea yelled
back at Jackson. ECF No. 183-4 at 1:13. Accordingly, the video footage does not
depict Brown using an unreasonable amount of force to subdue Jackson, and
summary judgment is granted in his favor.
3. Defendant Craig
Defendant Craig argues that he is entitled to summary judgment because he
“was not physically present for the interactions between the officers, Craft, and
Jackson that they claim are unconstitutional,” and that he cannot be held liable
through a respondeat superior theory. ECF No. 181, PageID.8191. The Court
agrees.

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Plaintiffs have listed Craig in thirteen counts in their Third Amended
Complaint (Counts I, II, III, V, VI, VIII through XIV, XVI). He was not, however,
physically present during any of the encounters on April 2016, June 2016, December
2016, March 2017, or May 2017. Nevertheless, Plaintiffs argue that as Billingslea’s
supervisor, Craig failed to investigate citizen complaints against Billingslea and
“gave the green light to Billingslea to commit constitutional violations and at the
minimum authorized, approved, or knowingly acquiesced in his unconstitutional
behavior.” ECF No. 191, PageID.10183.
There is no allegation in the Complaint that Craig personally detained,
arrested, prosecuted, or imprisoned either Jackson or Craft. Accordingly, Plaintiffs
cannot pursue a theory of vicarious liability as a matter of law. See Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.”). Therefore,
because there is no genuine issue of fact that Defendant Craig violated the
Constitution through his own individual actions, he is entitled to summary judgment
on all of Plaintiff’s Section 1983 claims in which he is named (Counts I, II, III, V,
VI, VIII through XIV, XVI).

Additionally, as discussed infra subsection Q,

Plaintiffs’ Monell claim does not survive against Craig on a vicarious liability theory
and he is granted summary judgment on Count XVII as well.
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C. Fourth and Fourteenth Amendment Unlawful Arrest (Count II)
Defendants Billingslea, Patterson, Bines, and Bailey move for summary
judgment on both Plaintiffs’ claims that they were unlawfully arrested during the
May 31, 2017 incident.2
In order to prove a false arrest claim under the Fourth Amendment, a plaintiff
must establish that the arresting officers lacked probable cause to arrest him at the
time. See Fridley v. Horrighs, 291 F. 3d 867 (6th Cir. 2002). Further, under an
unlawful detention analysis, “[i]f a subject is unarmed, but nonetheless presents a
risk to officer safety, handcuffing and detention in a cruiser may still be reasonable.”
Kowolonek v. Moore, 463 F. App’x 531, 536 (6th Cir. 2012); see also Standifer v.
Lacon, 587 F. App’x 919, 922 (6th Cir. 2014) (“Police officers may constitutionally
handcuff someone as a ‘safety precaution,’ even when they are ‘merely detaining,
but not arresting’ the person.”). This is not to say that officers may handcuff
detainees in all circumstances. See Bennett v. City of Eastpointe, 410 F.3d 810, 840

2

In Plaintiffs’ Response to the City Defendants’ motion, Craft states he was
“handcuffed by Bailey, Bines, and Patterson and placed in a squad car.” ECF No.
191, PageID.10190. It does not appear that Craft intends to allege this Count
against Billingslea. Further, Plaintiffs’ Response for this Count regarding
Jackson’s arrest only addresses conduct by Billingslea and Patterson. Plaintiffs’
Complaint, however, alleges unlawful arrest of Jackson and Craft against
Billingslea, Patterson, Bailey, and Bines all together. In light of the arguments in
each party’s motions, the Court reads this Count as: (1) Craft alleging unlawful
detention by Patterson, Bailey and Bines, and (2) Jackson alleging unlawful arrest
by Billingslea and Patterson. Summary judgment is granted for Defendants on
both (1) and (2). 
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(6th Cir. 2005) (finding Terry3 violation where defendant failed to point to “one
single fact which supports a concern for officer safety” in handcuffing child
bicyclists for riding double).

However, detention and handcuffing may be

permissible where there is concern for officer safety or the suspect is a flight risk.
Kowolonek, 463 F. App’x at 536–37.
As an initial matter, it is disputed whether Craft was arrested during this
encounter, or if he was just briefly detained in the back of the patrol car. Bailey’s
body camera footage indicates that Bailey told Craft he was under arrest and going
to jail. ECF No. 181-23. According to the video and his deposition, however, Craft
eventually exited the vehicle, was never issued a ticket, and walked away from the
scene to call Jackson’s family. See ECF No. 181-3, PageID.8434. Given that he
was eventually free to leave the scene and in fact did so, it appears that Craft’s
unlawful arrest allegation is more properly analyzed as an unlawful detention, also
under the Fourth Amendment.
Craft argues that he was unreasonably detained because, “by videotaping from
a distance and then standing outside waiting for his cell phone to be returned to him,
[he] was not interfering with a police investigation nor in any way could he have
posed a risk of flight or violence to the officers.” ECF No. 191, PageID.10190. The
surveillance video and Craft’s own cell phone video, however, contradict that

3

Terry v. Ohio, 392 U.S. 1 (1968).
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statement. Patterson tells Craft multiple times to back up away from the store while
Billingslea is attempting to handcuff Jackson. See ECF No. 183-3 at 1:38, 2:05. At
that point, the altercation remained dangerous; it was reasonable for Patterson to
request that Craft remain outside of the store until the arrest was completed. Craft
did not comply, however, and the Defendants Patterson, Bines, and Bailey
eventually handcuffed and detained Craft in one of the patrol vehicles. With the
unpredictability and violence of the altercation in the convenience store, it was
reasonable under Kowolonek for the officers to detain Craft until it was safe again
for all officers and individuals present.

Accordingly, the brief detention was

appropriate under the circumstances, and summary judgment will be granted for
Defendants Patterson, Bailey, and Bines for Count II.
Additionally, Plaintiffs’ allege that Billingslea failed to intervene while Craft
was detained.4 But while Craft was speaking with Patterson, Bines, and Bailey,
Billingslea was not present—he was still in the store with Jackson. Craft has not
alleged sufficient facts to demonstrate Billingslea had observed Craft’s detention,
had the means to intervene, or that the detention was unlawful. Summary judgment
is therefore granted for Defendant Billingslea on Count II and XI regarding
intervention.

4

Plaintiffs appear to allege Billingslea’s failure to intervene in Craft’s detainment
in both Counts II and XI. The Court’s ruling here regarding Billingslea’s failure to
intervene applies to both counts.
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Unlike Craft, Plaintiff Jackson was formally arrested and taken into custody.
Jackson argues that “no such criminal investigation, probable cause, or reasonable
suspicion actually existed” for Billingslea to arrest him.
PageID.10191.

ECF No. 191,

The Court agrees with Billingslea, however, that the store

surveillance video clearly shows Jackson’s right fist making contact with
Billingslea’s face and/or chest. Regardless of whether Billingslea initially provoked
this altercation, the video depicts an assault against a police officer, which amounts
to sufficient probable cause to arrest Jackson. Accordingly, summary judgment is
granted in favor of Defendants Billingslea and Patterson for Count II.
D. Fourth Amendment Unlawful Seizure of Cell Phone (Count III)
In Count III, Craft alleges that Defendants Billingslea, Patterson, Mana, and
Hill unlawfully seized his cell phone containing a video of the incident in violation
of the Fourth Amendment. ECF No. 72, PageID.947-948. The City Defendants
move for summary judgment on this Count, arguing that Hill, Bailey, and Mana had
justification for the seizure. Craft responds by asserting that Hill and Bailey acted
unreasonably by seizing the phone. Billingslea separately seeks summary judgment
on this Count, stating that there was probable cause to seize the cell phone.
The Fourth Amendment does not provide an absolute protection against all
seizures—only unreasonable seizures. The governing standard for Fourth
Amendment rights is whether the police officers had probable cause for the
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seizure. See U.S. v. Place, 462 U.S. 696, 702-03 (1983). Therefore, Defendants
only violated Plaintiff’s Fourth Amendment right if they seized Craft’s cell phone
without probable cause.
1. Defendants Billingslea and Hill
Defendants cite to McClain, asserting that the seizure of Craft’s cell phone
was justified under the exigent circumstance exception. United States v. McClain,
444 F.3d 556, 562 (6th Cir. 2005). The Sixth Circuit has identified one of these
emergency situations as the potential for the imminent destruction of evidence. Id.
Defendants additionally argue that Hill needed to control the active crime scene and
only briefly detained Craft’s cell phone. ECF No.181, PageID.8197. Defendants
conclude that the cell phone’s seizure was appropriate because “it is reasonable to
believe that any incriminating actions that may be on the phone related to Craft or
Jackson’s actions would be deleted by Craft.” ECF No.151, PageID.5149.
Defendants Billingslea and Hill, however, fail to identify any actions by Craft
that would indicate he was planning to delete the cell phone video.

Neither

Defendant has pled sufficient facts to demonstrate that there was imminent danger
of evidence destruction by Craft, undermining their claims that there was either
probable cause or an emergency situation necessitating seizure. For these reasons,
the Court does not conclude as a matter of law that Defendants lawfully seized

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Craft’s cell phone, as a genuine issue of material fact exists. Therefore, neither Hill
nor Billingslea are entitled to summary judgment on Plaintiffs’ Count III.
2. Defendant Patterson
While Patterson is alleged as a defendant for this Count in Plaintiffs’ Third
Amended Complaint, neither party addresses Patterson’s involvement in the seizure
of Craft’s cell phone. A determination of summary judgment is therefore improper
at this stage and Count III remains viable against Defendant Patterson.
3. Defendant Mana
The City Defendants state that there is “simply no factual basis that Defendant
Mana seized Plaintiff Craft’s cell phone, nor that he had the opportunity and failed
to prevent the seizure and thus had the opportunity to intervene.” ECF No. 181,
PageID.8198. Plaintiffs fail to respond to Defendants’ argument for this Count, and
the only discussion of Mana’s failure to intervene relates to Count XI and Craft’s
detainment, not this Count. “District courts is this Circuit routinely grant summary
judgment as to claims a plaintiff fails to support or address in response to a motion
for summary judgment.” See, e.g., Williams v. Reg'l Adjustment Bureau, No. 102305-STA-TMP, 2012 WL 4321291, at *14 (W.D. Tenn. Sept. 19, 2012); Anglers
of the Au Sable v. U.S. Forest Serv., 565 F.Supp.2d 812, 839 (E.D. Mich. 2008).
Considering the arguments presented and Mana’s body camera footage, the evidence
does not demonstrate that Mana seized Craft’s phone, and Craft fails to show that
Mana knew about the seizure or had the means to intervene. Accordingly, there is
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no genuine dispute of material fact and summary judgment is granted for Mana for
Count III.
4. Defendant Bailey
The Court notes that Bailey is not named as a defendant in this Count in
Plaintiffs’ Third Amended Complaint, even though he is discussed in the City
Defendant’s motion and Plaintiffs’ Response. See ECF No. 181, PageID.8197; ECF
No.191, PageID.10192. As this Count is not alleged against this Defendant, there is
no need to resolve whether summary judgment is proper against Bailey here.
E. Fourth Amendment Unlawful Cell Phone Search (Count IV)
In Count IV, Craft alleges that Defendants Bailey and Mana unlawfully
threatened Craft and unconstitutionally searched the contents of his cell phone.
Bailey and Mana argue that summary judgment is warranted because Craft
consented to the search of his phone. While Billingslea addresses this Count in his
motion, Plaintiffs do not allege this count against him. The Court therefore need not
consider whether summary judgment is appropriate here as to Billingslea.
A search is not unreasonable under the Fourth Amendment “if an individual
with a privacy interest in the item to be searched gives voluntary consent.” U.S. v.
McCauley, 548 F. 3d 440, 446 (6th Cir. 2008). “The determination of whether
consent was valid is a fact-specific inquiry that must be determined by the totality
of the circumstances.” United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999).
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Only consent “unequivocally, specifically, and intelligently given, uncontaminated
by any duress and coercion” will suffice. Id. (quoting United States v. Tillman, 963
F.2d 137, 143 (6th Cir. 1992)). “Several factors should be examined to determine
whether consent is valid, including the age, intelligence, and education of the
individual; whether the individual understands the right to refuse to consent; whether
the individual understands his or her constitutional rights; the length and nature of
detention; and the use of coercive or punishing conduct by the police.” United States
v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir. 1996), abrogated on other grounds,
Muscarello v. United States, 524 U.S. 125, 138 (1998).
Here, there is an issue of material fact as to whether Craft gave consent to
Defendants Bailey and Mana before they searched his cell phone. From Craft’s
perspective, Bailey states that he is placing Craft under arrest and tells him he is
going to jail because he was not complying with Bailey’s order to move away from
the store. ECF No. 181-23 at 3:07. Craft is placed in the back of the patrol vehicle
and testified in his deposition that he was then forced to unlock his phone. ECF No.
181-3, PageID.8429. Defendants, however, state that Craft readily gives consent to
the search of his phone by “indicat[ing] that a fingerprint is required to open the
phone, and voluntarily tr[ying] to open the phone with his fingerprint.” ECF NO.
181, PageID.8198.

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Under a totality of the circumstances, a juror could find that Craft was under
duress and did not believe he was free to refuse Bailey’s order to unlock the cell
phone. There is a genuine dispute whether Craft voluntarily provided Bailey with
his fingerprint and passcode, and summary judgment will therefore be denied as to
Bailey. Neither Mana’s patrol vehicle video nor Bailey’s body camera video,
however, show Mana was involved with the search of Craft’s cell phone. As
Plaintiffs have not produced any substantive evidence to support their claim against
Mana here, Mana is entitled to summary judgment on Count IV.
F. First Amendment Right to Record the Police (Count V)
In Count V, Craft claims that Defendants Billingslea, Patterson, and Hill
violated his First Amendment right to record video of police officers in a public
place. ECF No. 72, PageID.949-950. Craft moves for summary judgment on this
Count, claiming that the right to film police encounters is clearly established. In
their cross-motions for summary judgment, Billingslea, Patterson, and Hill argue
that Craft was not unreasonably prevented from recording the incident and that the
right has not been clearly established in this Circuit.
"[T]he First Amendment goes beyond protection of the press and the selfexpression of individuals to prohibit government from limiting the stock of
information from which members of the public may draw." First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 783 (1978). The protections of the First
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Amendment include "news gathering," Branzburg v. Hayes, 408 U.S. 665, 681
(1972), and "the free discussion of governmental affairs," Mills v. State of Ala., 384
U.S. 214, 218 (1966).

The First Amendment's protections, however, are not

absolute. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984) ("Expression, whether oral or written or symbolized by conduct, is subject to
reasonable time, place, or manner restrictions."). The Supreme Court and the Sixth
Circuit have not directly addressed the issue of whether there is a First Amendment
right to record police officers in public spaces, but it is a clearly established right in
the First, Seventh, Ninth, and Eleventh Circuits. Glik v. Cunniffe, 655 F.3d 78, 82
(1st Cir. 2011); ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Fordyce v. City
of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d
1332, 1333 (11th Cir. 2000).
Defendants cite to this Court’s prior decision in Palmer v. Allen, which held
that “the right to secretly film law enforcement officers at a traffic stop” was not a
clearly established right “in Michigan as of August 2012.” Palmer v. Allen, 2016
U.S. Dist. LEXIS 80168 at *19 (E.D. Mich., June 2016). Defendants also cite to a
2018 Report and Recommendation from Magistrate Judge Majzoub where she
recommends that the Court find there is no clearly established right to videotape
police officers when the person recording interferes with the investigation and
creates a safety concern. Davis-Bey v. City of Warren, No. 16-CV-11707, 2018 WL
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895394, at *6 (E.D. Mich. Jan. 16, 2018), report and recommendation adopted, No.
16-CV-11707, 2018 WL 878879 (E.D. Mich. Feb. 14, 2018). It is important to note,
however, that this Report and Recommendation was adopted by Judge Levy “insofar
as it determines that there is no constitutional right to interfere with a lawful arrest,
regardless of whether the person interfering with the arrest is also filming the arrest.”
Davis-Bey v. City of Warren, No. 16-CV-11707, 2018 WL 878879, at *1 (E.D. Mich.
Feb. 14, 2018). The holding of the case is specific to its facts and does not stand for
the principle that the right to videotape police officers in public spaces is not clearly
established.
Further, Plaintiffs cite to a Judge Parker case from 2017, which held that there
is “First Amendment protection for creating audio and visual recordings of law
enforcement officers in public places,” subject to reasonable restrictions. Richards
v. City of Detroit, No. CV 15-12211, 2017 WL 1954404, at *7 (E.D. Mich. May 11,
2017). Defendants note that the defendants in Richards did not contest that this right
exists, whereas they are contesting that here. Id. Finally, Defendants cite to a case
in a sister district court that held “the right openly to film police carrying out their
duties is not so clear cut that it is proper in this case to withhold qualified immunity
as to the First Amendment claim.” Crawford v. Geiger, 131 F. Supp. 3d 703, 715
(N.D. Ohio 2015), aff'd in part, rev'd in part and remanded on other grounds, 656
F. App'x 190 (6th Cir. 2016) (emphasis in original). Defendants fail to note,
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however, that the Crawford court found that “there is a First Amendment right
openly to film police officers carrying out their duties in public,” subsequently
affecting the establishment of that right in the future. Id.
Upon consideration of the briefings and the existing case law on this issue,
the Court finds that there is a clearly established First Amendment right to openly
record police officers in public spaces. Cell phone use, especially to document
everyday encounters, has become ubiquitous in the twenty-first century. The video
recording capacity of a cell phone has also improved dramatically over the past
decade, and citizens increasingly choose to record interactions they witness or
experience with the police. Given these circumstances, as well as the holdings in
other Circuits, there now exists a clearly established First Amendment right to
openly film police officers carrying out their duties, subject to reasonable
restrictions.
Neither party here has presented evidence that indicates this issue is so onesided that they must prevail as a matter of law. Anderson, 477 U.S. at 251–52. A
reasonable juror must consider the factual disputes present and determine if the
Defendants infringed upon Craft’s First Amendment right to record, or if Craft was
only subject to reasonable restrictions to prevent interference with police activities.
With these material facts remaining in dispute, summary judgment is denied for both
Plaintiffs and Defendants Billingslea, Patterson, and Hill on Count V.
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G. First Amendment Retaliation (Count VI)
Here, Craft claims that the Defendant officers retaliated against him while he
was exercising his First Amendment right to record the police in public. Defendants
Billingslea, Patterson, Hill, and Mana move for summary judgment on this Count by
asserting that Craft has not alleged any adverse action that satisfies the retaliation
analysis.
A First Amendment retaliation claim requires proof that “(1) the plaintiff
engaged in constitutionally protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) the adverse action was motivated at least in part
by the plaintiff's protected conduct.” Paterek v. Vill. of Armada, Mich., 801 F.3d
630, 645 (6th Cir. 2015).
In this case, Craft contends that he engaged in the constitutionally protected
conduct of filming law enforcement officers in a public place. As discussed supra,
the Court held that this right is clearly established, satisfying the first prong. The
parties dispute whether the adverse actions alleged are sufficient to withstand the
summary judgment stage. Here, Craft (1) was told by Billingslea that he would be
maced if he did not back away from the scene, (2) had his phone taken away and
subsequently damaged, and (3) was detained in the back of a police vehicle.
Considering this evidence in the light most favorable to the non-moving party here,

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it is plausible that a search and seizure of Craft’s cell phone, coupled with the above
facts, was more than a de minimus injury. Wurzelbacher v. Jones-Kelley, 675 F.3d
580, 584 (6th Cir. 2012). Accordingly, it is proper for a jury to interpret these events
and determine whether Craft suffered adverse actions that derived from his video
recording of the encounters. Summary judgment will therefore be denied as to Count
VI.
H. First and Fourth Amendment Property Deprivation (Count VII)
Craft next alleges in Count VII that four of the Defendant officers violated his
First and Fourth Amendment right “to stand in public and smoke a cigarette” after
he was “ordered . . . to extinguish [his] cigarette.” ECF No. 72, PageID.951-952.
This constitutional claim does not hinge on Craft’s words but rather on Craft’s
conduct, which was standing outside of the gas station store while smoking a
cigarette. “To bring a free-speech claim regarding actions rather than words,
claimants must show that their conduct conveys a particularized message and the
likelihood is great that the message will be understood by those who view it.” Blau
v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 388 (6th Cir. 2005) (internal citations
and quotations omitted). Craft argues that his conduct meets this standard, as he
“conveyed a particular message of freedom to stand and smoke a cigarette where
there is no smoking prohibition.” ECF No. 191, PageID.10196. That message,
however, is neither particularized nor clearly evident to others. Defendants note that,

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while the Sixth Circuit has not squarely addressed this issue, other circuits have
found that smoking is not constitutionally protected conduct. See Roark & Hardee
LP v. City of Austin, 522 F.3d 533, 551 (5th Cir. 2008); Gallagher v. City of Clayton,
699 F.3d 1013, 1021 (8th Cir. 2012). This Court agrees with Defendants and finds
that summary judgment is appropriate on this claim.
Additionally, there is a dispute whether the officers ordering Craft to
extinguish his cigarette was a Fourth Amendment seizure of his property. This
exchange, which is depicted on Defendant Bailey’s body camera video, shows that
Craft consented almost immediately to the officers’ direction to put out his cigarette.
See ECF No. 181-23. As there was consent, Bailey’s actions did not amount to an
unlawful seizure under the Fourth Amendment, nor did the surrounding officers fail
to intervene in any unconstitutional conduct. Accordingly, summary judgment will
be granted for Defendants for Count VII.
I. First Amendment Store Entry Prevention (Count VIII)
In Count VIII, Craft and Jackson allege that Defendant Billingslea prevented
their entry into the gas station store in violation of their First Amendment rights.
ECF No. 72, PageID.952-953.
As with the previous Count, Plaintiffs’ First Amendment claim concerns
conduct—this time, regarding entry into a private business. Plaintiffs’ argument
similarly fails here; contrary to their assertions, walking into a gas station store does
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not clearly “convey a message of freedom” to others observing the conduct. ECF
No. 164, PageID.7272; Blau, 401 F.3d at 388. Without meeting that threshold,
Plaintiffs fail to establish that their conduct was constitutionally protected.
Accordingly, summary judgment is granted in Billingslea’s favor here.
J. Fourth Amendment Unlawful Vehicle Seizure (Count IX)
In Count IX, Jackson alleges unlawful seizure of his vehicle by all nine police
Defendants. ECF No. 72, PageID.953. The Defendants all argue that summary
judgment is proper here because Jackson’s vehicle was towed pursuant to a lawful
arrest. As with the analysis in Count III, supra, Defendants only violated Plaintiff’s
Fourth Amendment right if they seized Jackson’s vehicle without probable cause.
In Count II, the Court determined that probable cause existed for Jackson’s
arrest after he swung his arm at Billingslea. One of the consequences of this lawful
arrest is that Jackson’s vehicle would be towed. Therefore, Jackson’s Fourth
Amendment rights were not violated because Defendants’ seizure of his vehicle was
reasonable. Summary judgment is granted in all Defendants’ favor with respect to
this Count.
K. Fourteenth Amendment Failure to Provide Medical Treatment
(Count X)
Jackson also claims that his Fourteenth Amendment rights were violated by
the Defendants’ deliberate indifference to his serious medical needs after he was

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maced and “denied any form of medical treatment.” ECF No. 164, PageID.7275.
All parties move for summary judgment on this Count.
Claims brought by arrestees alleging deliberate indifference are analyzed
under the Fourteenth Amendment’s Due Process Clause, rather than under the
Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). However,
the standard of review for a due process claim is identical to an Eighth Amendment
denial of medical care claim. See Barber v. City of Salem, 953 F. 2d 232, 235 (6th
Cir. 1992); Roberts v. City of Troy, 773 F. 2d 720, 723 (6th Cir. 1985).
The

Sixth

Circuit

employs

a

two-part

test

to

analyze

claims

of deliberate indifference. Estate of Carter v. City of Detroit, 408 F. 3d 305, 311
(6th Cir. 2005). Specifically, plaintiff must satisfy an objective and subjective test
to make out his claim. The objective prong requires a demonstration that plaintiff
was exposed to a sufficiently serious risk of harm. See Farmer v. Brennan, 511 U.S.
825, 834 (1994). The subjective component requires that the defendants knew of
and disregarded a substantial risk of serious harm to the detainee’s health and
safety. Id. at 835-37; see also Terrance v. Northville Regional Psychiatric Hospital,
286 F. 3d 834, 843 (6th Cir. 2002). It is not enough if the official should objectively
have been aware of the risk to the detainee’s health and safety, rather "[t]he official
must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the
inference." Farmer, 511 U.S. at 837.
Here, Jackson was exposed to a risk of injury when he was maced in the gas
station store by Billingslea. If either the officers or Moore, the medic, did not offer
to flush out his eyes, Jackson could have faced a substantial risk of serious harm.
Body camera footage indicates, however, that the officers attempted to administer
aid, but Jackson refused to exit the vehicle or have his eyes flushed when asked. See
ECF No. 181-21. Billingslea approached Jackson and told him to lean out of the car
so that he can flush his eyes. ECF No. 183, PageID.9333. Jackson instead replied
that he wanted an ambulance or to talk to a specific sergeant. Id. Plaintiff appears
to argue that the police and fire department were working together to keep Jackson
in pain by denying medical care, but these bare allegations do not meet the subjective
threshold required by the deliberate indifference standard. Furthermore, as there
was no constitutional violation, the other officers present cannot be held on a failure
to intervene claim. Therefore, Plaintiff’s motion here is denied and summary
judgment is granted as to all Defendants on Count X.
L. Failure to Intervene (Count XI)
In Count XI, Craft seeks summary judgment against Patterson for failure to
intervene when Billingslea prevented his ability to record the encounter, while
Jackson seeks summary judgment against Patterson for failure to intervene during
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Billingslea’s use of excessive force. In the City Defendants’ cross-motion, each
Defendant moves for summary judgment, arguing that most of the officers arrived
on the scene too late to prevent any alleged wrongdoing. This Count was already
granted in Billingslea’s favor in Count II, where his failure to intervene was alleged.
“Generally speaking, a police officer who fails to act to prevent the use of
excessive force may be held liable when (1) the officer observed or had reason to
know that excessive force would be or was being used, and (2) the officer had both
the opportunity and the means to prevent the harm from occurring.” Turner v. Scott,
119 F.3d 425, 429 (6th Cir. 1997). “Where an act of excessive force unfolds in a
matter of seconds, the second requirement is generally not satisfied.” Pennington v.
Terry, 644 Fed. App’x 553, 548 (6th Cir. Mar. 23, 2016) (noting that there is
generally insufficient time to intervene in types of excessive force lasting less than
ten seconds); see also Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013) (holding
that an officer and nurse lacked opportunity to intercede in a takedown that lasted
no more than ten seconds).
1. Plaintiff Craft Against Defendant Patterson
Craft has not established here that Patterson was aware of his interaction with
Billingslea, or that Patterson had an opportunity to intervene between them. The cell
phone footage depicts Patterson working to hold Jackson down while Billingslea
moves Craft back several feet from the scene. See ECF No. 181-16. Plaintiff has

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failed to demonstrate that Patterson either observed any force being used against
Craft or had the means to intercede. Summary judgment will therefore be granted
for Patterson on this Count.
2. Plaintiff Jackson Against Defendant Patterson
Here, it is unclear how much of the Jackson-Billingslea altercation Patterson
witnessed prior to Jackson’s takedown inside the gas station convenience store. It
is not disputed that Patterson was physically present for the altercations both outside
and inside of the store, but the parties disagree about whether enough time lapsed
for Patterson to intervene in the scuffle.
The Court finds that a reasonable juror could determine that Patterson had
enough time to assess the situation and intervene during Billingslea’s uses of force
against Jackson. While the physical altercations between the two occurred in a short
time frame, Plaintiffs and Billingslea and Patterson were involved in heated
interactions for several minutes. See ECF No. 183-3 (Showing Craft’s cell phone
video is over three minutes long). The evidence indicates that Patterson witnessed,
at minimum, (1) Billingslea mace Jackson, (2) take him down, and (3) apply strikes
to Jackson on the ground, suggesting that Patterson was near enough to have
intervened to protect Plaintiff from Billingslea’s actions.
It has long been the law in this Circuit that a police officer has a duty to protect
a citizen against the unconstitutional conduct of another officer. Bruner v. Dunaway,

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684 F. 2d 422, 426 (6th Cir. 1982) (holding that a police officer has a duty to try and
stop another officer who uses excessive force against a person in the officer’s
presence). Further, while Defendants argue that “each use of force was well under
10 seconds in length,” this piecemeal approach to determining the total amount of
time force was used is unpersuasive. Looking at the totality of the circumstances,
Patterson was present at the outset of this encounter, had multiple minutes to assess
his partner’s behavior towards Plaintiff, and witnessed well over ten seconds of
Billingslea’s force against Jackson. Accordingly, a factual dispute exists for this
Count and summary judgment regarding Patterson’ failure to intervene will be
denied.
3. Plaintiffs Against Defendants Bailey, Hill, Mana, Hines, Brown,
and Mays
While the altercations occurred between Plaintiffs and Billingslea and
Patterson, the various video footage available depicts the remaining officers arriving
after Jackson was restrained on the convenience store floor.

None of these

Defendants were on the scene long enough to assess whether Plaintiffs’ rights were
being violated prior to their arrival. Accordingly, as there was no opportunity to
intervene, summary judgment is denied for Plaintiffs and granted for the remaining
Defendants on Count XI.

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M. Fourth Amendment Unlawful Search and Arrest in April 2016
(Count XII)
In Count XII, Craft alleges that Billingslea, Patterson, and Mana unlawfully
searched and arrested him while standing in the vicinity of 5920 Audubon Road.
ECF No. 72, PageID.939. All Defendants move for summary judgment on this
Count.
The evidence presented by the parties about the April 2016 event creates
sufficient disagreement as to preclude a summary judgment determination at this
stage. Defendants argue that Craft was standing in the street and turning away from
them while clutching his right side. ECF No. 181, PageID.8208. These facts,
Defendants argue, constitute reasonable suspicion of a civil infraction and a
reasonable belief that Craft was armed, warranting a legal Terry search. Id. Craft
testified in his deposition, however, that he was standing in his stepmother’s
driveway, not the street, and that he was thrown to the ground and searched without
legal justification. ECF No. 181-3, PageID.8329. If Craft was standing on the
sidewalk or driveway, the Defendants would have lacked reasonable suspicion to
detain and search Craft at that time. Given this dispute between the parties, it is
more appropriate for a jury to make a credibility determination about the events on
April 2016. Therefore, Defendants’ motion for summary judgment is denied for
Count XII.

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N. Fourth Amendment Unlawful Detention and Search in June/July
2016 (Count XIII)
Craft also brings an unlawful detention and search claim against Billingslea
and Patterson concerning encounters in June or July of 2016.

ECF No. 72,

PageID.955. Billingslea and Patterson move for summary judgment. In the first
incident, Craft alleges that Billingslea “acted out a karate-style kick” toward Craft’s
direction and walked away without touching him, with Patterson passively observing
throughout. Id. at PageID.942. In the second incident, Craft states that he was
walking to the store with his brother and that they “were stopped and frisked by
Officer Billingslea and Patterson.” ECF No. 181-3, PageID.8367.
Here, Plaintiff presents vague descriptions of the encounters. There is no
police or video documentation of either of these interactions, nor are specific dates
identified.

The Court is unpersuaded by Craft’s conclusive argument that

“[c]onfronting and harassing people with physical intimidation in public places
without fear of consequences is evidence that [Billingslea] would not have acted
such without the authority given to him by the City of Detroit.” ECF No. 191,
PageID.10205. Without factual development or documentation about either June
and/or July 2016 incident, Craft has not established that he can survive summary
judgment on this Count. Accordingly, summary judgment is granted for Billingslea
and Patterson on Count XIII.

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O. Fourth Amendment Unlawful Arrest (Count XIV) and Failure to
Intervene in December 2016 (Count XV)
Plaintiff Craft brings a similar unlawful search and arrest claim against
Billingslea and Patterson for the encounter in December 2016. ECF No. 72,
PageID.956. As with the previous Count, Plaintiff cannot identify a specific date
that the event occurred or provide evidence sufficient to withstand the summary
judgment stage against either Defendant.

There is no police report or video

documentation of this encounter, and Craft’s deposition testimony is generalized,
stating that he “think[s] Patterson searched [him], and Billingslea searched [his]
brother.”

ECF No. 181-3, PageID.8371.

This statement, along with Craft’s

argument that this is “another episode of the ‘personal vendetta’” the Defendants
have against Craft, has not established that a Fourth Amendment violation occurred
here, or that an officer failed to intervene in that violation.

ECF No. 191.

PageID.10205. Therefore, with the facts developed at this stage, the Court will grant
summary judgment for Billingslea and Patterson for Counts XIV and XV.
P. Fourth Amendment Unlawful Search and Arrest in March 2017
(Count XVI)
Craft brings another claim for unlawful search and arrest, this time from a
March 2017 incident involving Billingslea, Patterson, Mana, Hill, Mays, and Bines.
ECF No. 72, PageID.956. Defendants move for summary judgment on this Count.

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As with the April 2016 encounter, Defendants argue that Craft was
committing a civil infraction because his vehicle was parked with its left wheels on
a curb, in violation of M.C.L. § 257.675. ECF No. 181, PageID.8209. They assert
that this established reasonable suspicion to “stop[ ] the vehicle and its occupants to
investigate.” Id. Once the officers approached, Defendants state that Craft began to
yell, which created probable cause to arrest him for disorderly conduct and conduct
a search incident to arrest. Id. In contrast, Craft testified that he was in the process
of pulling out of his driveway and stopped to let two patrol vehicles go by when the
officers stopped them. ECF No. 191, PageID.10203. Craft suggests that this was
therefore not a civil infraction because he was not parked but simply momentarily
stopped. See ECF No. 181-3, PageID.8448-8449.
Unlike the incident in April 2016, however, there is ambiguity here about
whether Craft’s car was parked or just temporarily stopped to let the officers go by.
With this ambiguity, it is plausible that the Defendants interpreted the stopped
vehicle as parked—especially since it was the middle of the night and therefore dark
outside—which would amount to a civil infraction and create reasonable suspicion
to approach the vehicle. As the qualified immunity analysis “provides ample room
for mistaken judgments,” the Defendants’ conduct was not unreasonable under the
circumstances. Meeks v. City of Detroit, 727 F. App'x 171, 176 (6th Cir. 2018)

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(quoting Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)). Accordingly,
summary judgment will be granted for all Defendants on Count XVI.
Q. Supervisory and Municipal Liability (Count XVII)
Plaintiffs move for summary judgment on this Count based on two grounds:
(1) against Defendant Craig under a theory of supervisory liability, and (2) against
the City of Detroit based on the City’s alleged failure to train and supervise its
officers regarding excessive force. ECF No. 183, PageID.9349-9350. The City
Defendants separately seek summary judgment on this issue, arguing that Plaintiffs
failed to plead facts that would put the Defendants on notice of deficient officer
training and supervision. ECF No. 181, PageID.8231.
Plaintiffs’ Section 1983 claim against the City of Detroit must “demonstrate
that the alleged federal violation occurred because of a municipal policy or custom.”
Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)); see also Miller v. Sanilac Cnty., 606 F.3d 240,
254–55 (6th Cir. 2010). Plaintiffs must make this showing by demonstrating one of
the following:
(1) the existence of an illegal official policy or legislative enactment;
(2) that an official with final decision making authority ratified illegal actions;
(3) the existence of a policy of inadequate training or supervision; or
(4) the existence of a custom of tolerance or acquiescence of federal rights
violations.

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Burgess, 735 F.3d at 478 (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005) (emphasis added)). “A municipality ‘may not be sued under § 1983
for an injury inflicted solely by its employees or agents.’” Id. (quoting Monell, 436
U.S. at 694).
To succeed on a failure to train or supervise claim in the Sixth Circuit, a
plaintiff must prove the following:
(1) the training or supervision was inadequate for the tasks performed;
(2) the inadequacy was the result of the municipality’s deliberate
indifference; and
(3) the inadequacy was closely related to or actually caused the injury.
Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.
2006).
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.”
Regets v. City of Plymouth, 568 Fed. App’x. 380, 394 (6th Cir. 2014) (quoting Bd.
of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). There are two ways to
demonstrate deliberate indifference. A plaintiff could “show prior instances of
unconstitutional conduct demonstrating that [a city] has ignored a history of abuse
and was clearly on notice that the training in this particular area was deficient and
likely to cause injury.” Plinton v. Cnty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008)
(quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). In the alternative, a
plaintiff could show “a single violation of federal rights, accompanied by a showing
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that a municipality has failed to train its employees to handle recurring situations
presenting an obvious potential for such a violation . . .” Id. (quoting Bryan Cnty.,
520 U.S. at 409).
In this case, Plaintiffs proceed on a failure to train or supervise claim.
Subsequently, they must demonstrate (1) failure to train or supervise, (2) deliberate
indifference, and (3) relatedness. See Ellis ex rel. Pendergrass, 455 F.3d at 700.
Thus, if the evidence presents sufficient disagreement about whether there was a
failure to train or supervise City of Detroit officers, summary judgment is improper
at this juncture. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52.
Defendant Craig testified in his deposition that he was Billingslea’s supervisor
for many years, including at the time of the May 2017 incident. ECF No. 181-28,
PageID.9191. His role as a supervisor was to “[m]ake sure [his] officers follow
policies and procedures” and “[t]rain them on different aspects of the job.” Id. Craig
testified that there was nothing that Billingslea did, in his opinion, that violated
Detroit police policy or the law. Id. at PageID.9200. He also stated that he was
unaware of any complaints regarding Billingslea’s behavior between 2014 and 2017.
Id. at PageID.9195. Additionally, the City Defendants state that “each Defendant
has recently received use of force training,” citing to the City of Detroit’s
Interrogatory Responses.

See ECF No.186-33.

The Responses indicate that

Billingslea last received use of force training on August 11, 2017.
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PageID.10107. Prior to this, Billingslea’s last use of force training was recorded on
his employee profile in 2015. ECF No.191-12, PageID.10884.
The facts that Plaintiffs present are insufficient to maintain a Monell claim
against the City of Detroit. In their motion, Plaintiffs cite two separate instances
where non-party Detroit police officers were convicted of assault and battery,
arguing that these events, together with Plaintiffs’ incidents, demonstrate a pattern
of misconduct. ECF No. 183, PageID.9351. Both events cited, however, occurred
after the May 2017 encounter at the heart of Plaintiffs’ case. Plaintiffs’ argument
here must therefore fail because they do not “show prior instances of
unconstitutional conduct” that would put the City of Detroit “clearly on notice that
the training . . . was deficient and likely to cause injury.” Plinton, 540 F. 3d at 464.
Further, this claim cannot survive based solely on Craig’s testimony that he saw no
issue with Billingslea’s actions; Craig’s opinions do not bear on the constitutionality
of his officers’ conduct and they do not establish that the City of Detroit “maintained
a training program through high-ranked officials that train their officers to commit
criminal assaults.” ECF No. 191, PageID.10206. Accordingly, Plaintiffs have not
demonstrated that there is a genuine issue of material fact for a jury to consider here,
and summary judgment is denied as to Plaintiffs and granted for Defendants on this
Count.

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V. CONCLUSION
For the reasons discussed herein, the Court will DENY Plaintiffs’ Motion for
Summary Judgment [#183], GRANT IN PART and DENY IN PART the City
Defendants’ Motion for Summary Judgment [#181], and GRANT IN PART and
DENY IN PART Defendant Billingslea’s Motion for Summary Judgment [#151].
The remaining Counts and Defendants are as follows:
Count I: Excessive Force (Defendants Billingslea and Patterson)
Count III: Unlawful Seizure (Defendants Billingslea, Patterson, and Hill)
Count IV: Unlawful Search (Defendant Bailey)
Count V: Unlawful Search (Defendants Billingslea, Patterson, and Hill)
Count VI: Retaliation (Defendants Billingslea, Patterson, Hill, and Mana)
Count XI: Failure to Intervene (Defendant Patterson)
Count XII: Unlawful Search and Arrest (Defendants Billingslea, Patterson,
and Mana)
IT IS SO ORDERED.

________________________________
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: May 8, 2020

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 8, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager
48