The Estate of MichaelAngelo Jackson et al v. Billingslea et al
ORDER Granting 27 Defendants' Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
The Estate of Michaelangelo A.
Jackson, deceased, et al.,
Case No. 18-10400
Honorable Victoria A. Roberts
Richard Billingslea, et al.,
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [ECF No. 27]
Lorenzo DeJuan Harris (“Harris”) led police officers on a car chase
before he crashed into a residential neighborhood killing and injuring
children playing outside. Plaintiffs represent these children. They bring
claims against the officers, City of Detroit, and unnamed supervisors.
Plaintiffs allege state created danger, excessive force, failure to
intervene, municipal liability, and supervisory liability. But—because they
fail to create genuine issues of fact to establish essential elements for each
claim—the Court GRANTS Defendants’ Motion for Summary Judgment.
On June 25, 2015, Detroit Police Department’s (“DPD”) officers
Richard Billingslea (“Billingslea”), Hakeem Patterson (“Patterson”), and
Steven Fultz (“Fultz”) patrolled in a marked scout car. Billingslea drove;
Fultz was the front passenger; Patterson sat in the rear. The scout car was
not equipped with a camera or working radio.
Harris drove a red Chevrolet Camaro westbound on Munich and
Chatworth. Fultz saw Harris holding a black semi-automatic handgun while
driving. Fultz alerted Billingslea and Patterson and then called dispatch.
Billingslea activated lights and sirens and drove towards Harris; Harris fled
and rapidly drove the Camaro northbound on Nottingham and E. Warren.
After losing sight of the Camaro, the officers discontinued the search.
However, when they saw a dust/smoke cloud on Nottingham and E.
Warren they drove towards it.
By then the Camaro had crashed in a residential neighborhood on
Nottingham, killing three-year-old Makiah Jackson and six-year-old
Michaelangelo Jackson. The crash also injured Plaintiffs Lakendra
Gardner, Z.G., I.W., and D.A.
The parties agree that: (1) the officers discontinued the car chase
after they lost sight of the Camaro, and (2) no gun was found. However, the
parties disagree about whether the scout car hit the Camaro causing it to
crash. Defendants say the scout car never contacted the Camaro; Plaintiffs
say it did.
Now, Plaintiffs bring this case pursuant to 42 U.S.C. §§ 1983 and
1988 and the Fourth and Fourteenth Amendments of the Constitution for
state created danger, excessive force, failure to intervene, municipal
liability, and supervisory liability. Defendants filed a Motion for Summary
Plaintiffs also have a case pending in Wayne County Circuit Court
alleging these same facts against the officers for negligence, and claims
against the City of Detroit, for negligence, owner liability, and vicarious
II. LEGAL STANDARD
The party moving for summary judgment has the initial burden to
“demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is an issue of material
fact “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). “[A] complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 323.
Summary judgment should not be granted if the nonmoving party
presents evidence to show a genuine issue of material fact. Fed. R. Civ. P.
56. The nonmoving party’s evidence must be viewed in the light most
favorable to it. Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
All of Plaintiffs’ claims arise under 42 U.S.C. § 1983. That statute
allows individuals to bring federal claims against state actors who deprive
them “. . . of any rights, privileges, or immunities secured by the
Constitution and laws . . . . ” 42 U.S.C.A. § 1983 (West 1996).
A. Plaintiffs Do Not Allege A “Specific Danger” To Sustain A
State Created Danger Claim
Plaintiffs bring a § 1983 state created danger claim. They say the
officers exposed them to an unreasonable risk of harm when they
conducted a high-speed car chase in a residential neighborhood. Plaintiffs
allege that the children killed and injured were a discrete group of
individuals who were far more vulnerable to harm, and consequently were
deprived of life, liberty, or property without due process of law.
Defendants say if anything, the car chase created danger to the
public at large; it did not specifically create danger to Plaintiffs.
Absent a special relationship, “a State’s failure to protect an individual
against private acts, or other mishaps not attributable to the conduct of its
employees,” is not a violation of the Fourteenth Amendment’s Due Process
Clause. DeShaney v. Winnebago Cty. Dep’t of Soc. Serv., 812 F.2d 298,
301 (7th Cir. 1987), aff’d 489 U.S. 189 (1989) (finding that the State had no
constitutional duty to protect a child from his father after receiving reports of
alleged child abuse).
There are two exceptions to this rule. First, a state has a duty to
protect when it takes an individual into custody and against his will. Id. at
199-200. The Sixth Circuit defined custody as “intentional application of
physical force and show of authority made with the intent of acquiring
physical control.” Cartwright v. City of Marine City, 336 F.3d 487, 492-93
(6th Cir. 2003) (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 506
(6th Cir. 2002)).
Plaintiffs do not claim this exception applies. Rather, they invoke the
second exception, which provides that a state has a duty to protect when
“. . . the state does anything to render an individual more vulnerable to
danger.” Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994)
(citing DeShaney, 489 U.S. at 201). States that create a “special danger” to
citizens have a “duty to protect citizens from that risk.” Jones v. Reynolds,
428 F.3d 685, 690 (6th Cir. 2006) (quoting Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998)).
To sustain a state created danger claim Plaintiffs must show:
(1) an affirmative act by the state which either created or increased
the risk that the plaintiff would be exposed to an act of violence by a
third party; (2) a special danger to the plaintiff wherein the state’s
actions placed the plaintiff specifically at risk, as distinguished from a
risk that affects the public at large; and (3) the state knew or should
have known that its actions specifically endangered the plaintiff.
Cartwright, 336 F.3d at 493.
The Sixth Circuit stated, “in the only cases where we have recognized
a ‘state created danger,’ the government could have specified whom it was
putting at risk, nearly to the point of naming the possible victim or victims.”
Jones, 438 F.3d at 696.
Plaintiffs fail to satisfy this “demanding standard for constitutional
liability.” Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th Cir. 1995).
No evidence suggests the officers knew Harris would drive the Camaro to
the Nottingham neighborhood and crash. The crash could have occurred in
any neighborhood, on any street. Moreover, before the crash, the officers
never interacted with Plaintiffs or had knowledge of their residence.
Because Plaintiffs cannot demonstrate the officers placed them
specifically at risk Cartwright, 336 F.3d at 493., all other facts are
immaterial. Celotex, 477 U.S. at 323. The Court concludes that Plaintiffs’
state created danger claim is without merit.
B. Plaintiffs’ Excessive Force, Failure To Intervene, And
Municipal Liability Claims Lack Evidentiary Support
The Court finds no evidentiary support in Plaintiffs’ excessive force,
failure to intervene, and municipal liability claims.
For starters, Plaintiffs rely on Harris’ unsworn and unnotarized
affidavit to prove that the officers hit the Camaro causing Harris to lose
control and crash. But Harris’ affidavit does not comply with 28 U.S.C. §
1746 and cannot support Plaintiffs’ claims for excessive force, failure to
intervene, or municipal liability.
An unsworn declaration may be used as evidence only if it is
subscribed “as true under penalty of perjury, and dated, in substantially the
following form . . . ‘I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on (date).
(Signature)’.” 28 U.S.C.A. § 1746 (West 1976) (emphasis added).
Because Harris’ affidavit was neither sworn nor subscribed pursuant
to § 1746, the Court properly disregards it as an “unsworn statement.” See
Hart v. Lutz, 102 Fed.Appx 10, 13 (6th Cir. 2004) (affirming district court’s
order granting summary judgment and holding that the Court properly
disregarded as “unsworn statements” two affidavits that were “not sworn or
otherwise subscribed pursuant to 28 U.S.C. § 1746.”).
Moreover, Defendants’ expert, Dr. Jerome Eck (“Eck”) from Eck
Engineering, LLC determined there was no contact between the Camaro
and the scout car. Eck conducted an accident site inspection on August 24,
2018, using the following information (1) aerial imagery of the accident site;
(2) performance data for the 2010 Camaro; (3) State of Michigan Traffic
Crash report; (4) Camaro’s air bag control module; and (5) footage from a
business’s surveillance video located on the northeast corner of
Nottingham and Warren. Eck found:
(1) The driver of the Camaro was traveling at a high rate of speed as
he crossed Warren intersection; (2) The driver was unable to keep
the Camaro on Nottingham and the vehicle exited the west side of the
roadway in less than two seconds after crossing the Warren
intersection; (3) The DPD scout car was traveling over seven
seconds behind the Camaro, as it crossed the Warren intersection;
(4) the Camaro did not leave Nottingham because of any contact with
the scout car.
(ECF No.27-9, PageID.466).
Fultz, Patterson, and Billingslea’s sworn, unrebutted testimony that
they did not contact the Camaro and Eck’s findings, together make clear
there is no genuine issue of material fact: there was no contact between
the scout car and the Camaro.
1. Excessive Force
Plaintiffs also try to use Harris’ unsworn affidavit to buttress their
claim that the officers used unreasonable, excessive force when they hit
the Camaro in a residential neighborhood causing it to crash.
Plaintiffs say the Fourth Amendment protects them from unlawful
seizure, unnecessary force, unreasonable force, and excessive force.
Under the Fourteenth Amendment Due Process Clause, Plaintiffs say they
have a clearly established right to liberty which includes their right to
personal safety and bodily integrity; they say the officers’ actions “shocks
the conscience” and deprive them of these constitutional rights. See Cty. of
Sacramento v. Lewis, 523 U.S. 833, 854-55 (1998) (granting summary
judgment and holding that “high-speed chases with no intent to harm
suspects physically or to worsen their legal plight do not give rise to liability
under the Fourteenth Amendment . . .” the officer’s conduct may offend tort
law reasonableness, but it did not “shock the conscience”).
Defendants contend that the officers did not use excessive force
because the scout car never contacted the Camaro or Plaintiffs.
Defendants say Plaintiffs’ allegations only amount to negligence or gross
The Supreme Court held that allegations of an officer’s use of
excessive force in “an arrest, investigatory stop, or other seizure” must be
analyzed under the Fourth Amendment’s reasonableness standard, as
opposed to the substantive due process standard. Graham v. Connor, 490
U.S. 386, 395 (1989).
Plaintiffs cite to case law stating “[e]ven if the plaintiff may not have
been the actual target of the arrest, the rule is not diminished—Fourth
Amendment analysis still governs.” Dismukes v. Hackathorn, 802 F. Supp.
1442, 1449 (N.D. Miss. 1992) (citing Roach v. City of Fredericktown, 882
F.2d 294, 297 (8th Cir. 1989)); see also Teames v. Henry, No. 03-1236H,
2004 WL 2186549, at *6 (N.D. Tex. Sept. 29, 2004) (“A bystander’s right to
be free from a law enforcement officer’s use of excessive force springs
from the unreasonable seizure clause of the Fourth Amendment or from the
due process clause of the Fourteenth Amendment.”).
However, Plaintiffs do not direct the Court to case law showing a
high-speed car chase translates into a seizure of a suspect, let alone a
seizure of third-party bystanders. To the contrary, the Sixth Circuit held that
an “officer’s pursuit cannot constitute a seizure . . . .” Jones v. Sherill, 827
F.2d 1102, 1104-05 (6th Cir. 1987). In Jones, the Court found no Fourth
Amendment violation when an officer unintentionally injured a bystander
while pursuing a suspect in a high-speed chase. Id.
Plaintiffs unsuccessfully attempt to distinguish their case from Jones
by arguing the officers here intentionally used deadly force by “ramming”
the Camaro (emphasis added). This argument is without merit because
Plaintiffs do not rebut defense evidence that contact never occurred.
Moreover, the Supreme Court found no Fourth Amendment violation
even when officers terminate a dangerous high-speed chase by contacting
a fleeing vehicle and in turn threatening third-party bystanders. Plumhoff v.
Rickard, 572 U.S. 765, 776 (2012) (quoting Scott, 550 U.S. at 386 (granting
summary judgment because the officer’s attempt to terminate the car chase
by forcing the suspect off the road was reasonable when the suspect
initiated a car chase and posed a substantial risk of injury to the public)).
There is no genuine issue of material fact; Plaintiffs fail to support
their claim that Defendants used excessive force; no Fourth or Fourteenth
Amendment violations occurred.
2. Fourth Amendment Failure to Intervene
Plaintiffs allege that Fultz and Patterson failed to intervene when
Billingslea used excessive force as he followed the Camaro in a residential
area at high speeds and crashed into it.
Defendants argue: (1) there was no duty to intervene because there
was no constitutional violation; and (2) at worse, Fultz and Patterson’s
failure to stop Billingslea from using excessive force amount to negligence
or gross negligence.
Police officers are liable for failing to prevent the use of excessive
force 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).
Since Plaintiffs fail to establish a constitutional violation occurred; i.e., no
seizure in the first place, they cannot sustain a Fourth Amendment claim for
excessive force and cannot satisfy the first element of their failure to
3. Monell Claim for Municipal Liability
Plaintiffs bring a § 1983 Monell claim for municipal liability against the
City of Detroit. Plaintiffs allege that the City had an obligation to: (1) train
police officers on citizens’ constitutional rights to due process; (2) supervise
police officers to ensure that the constitutional rights of citizens were not
violated; and (3) train police officers on proper dealings with individuals
during car pursuits. Plaintiffs say the City failed to meet these obligations
and had a custom or policy to act with deliberate indifference and violate
the constitutional rights of Detroit citizens.
To sustain a § 1983 Monell claim against the City, Plaintiffs must
show (1) they suffered a constitutional violation, and (2) a municipal policy
or custom directly caused the violation. Hardrick v. City of Detroit, 876 F.3d
238, 243 (6th Cir. 2017) (citing Monell v. Dep’t of Soc Servs. of N.Y.C., 436
U.S. 658, 690-92 (1978), rev’d 523 F.2d 259 (2d Cir. 1976)). “[A]
municipality cannot be held liable solely because it employs a tortfeasor—
or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell, 436 U.S. at 691.
The City is liable if its failure to train reflects “deliberate indifference”
to a citizen’s constitutional rights. City of Canton v. Harris, 489 U.S. 378,
392 (1989). A pattern of similar constitutional violations by untrained
employees is “ordinarily necessary” to show deliberate indifference. Bd. of
Cty. Comm’r of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997). Courts
imposing municipal liability must focus on the adequacy of a training
program, opposed to a badly trained officer. Canton, 489 U.S. at 390-91.
Plaintiffs rely on Harris’ unsworn and unnotarized affidavit to suggest
that the officers violated their constitutional right to due process of law. As
previously stated, the Court disregards the affidavit as an “unsworn
statement.” Hart, 102 Fed.Appx at 13. Without this affidavit Plaintiffs fail to
establish a constitutional violation and cannot support their Monell claim for
C. Plaintiffs Abandon Supervisory Liability Claim
Supervisory liability claims must show “a supervisory official’s failure
to supervise, control or train the offending individual . . . ‘either encouraged
the specific incident of misconduct or in some other way directly
participated in it.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir.1999) (quoting Hays v. Jefferson Cty., 668 F.2d 869, 874 (6th
Cir.1982)). Under § 1983, neither mere negligence nor respondeat superior
can be the basis for supervisory liability claims. See McQueen v. Beecher
Cmty, Sch., 433 F.3d 460, 470 (6th Cir. 2006).
Plaintiffs argue that Defendant, John Doe Supervisors 1-10 are liable
under § 1983 for their failure to train, instruct, supervise, or discipline the
DPD officers. Plaintiffs say these failures caused untimely deaths, injuries,
Defendants argue that none of alleged supervisors was named or
served with the lawsuit and any claims against them are now barred by the
statute of limitations. Defendants also contend that Plaintiffs present no
evidence that the supervisors encouraged the car chase or directly
participated in it.
Plaintiffs appear to abandon their supervisory liability claim; they
failed to respond to Defendants’ argument. Plaintiffs do not provide
sufficient evidence to show that the supervisors encouraged them to
pursue the car chase or that the supervisors directly participated in the
Fed. R. Civ. P. 56(e) states that the Court may grant summary
judgment if “a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact . . . .” Rule 56(e) requires
nonmoving parties to go beyond pleadings to show a genuine issue of
material fact. Celotex, 477 U.S. at 324.
Given Plaintiffs’ failing, the Court grants summary judgment on this
Defendants’ Motion for Summary Judgment is GRANTED.
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
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