Grady et al v. Washtenaw County Sheriff's Office et al

Filing 80

OPINION and ORDER on 69 Defendants' Motion for Summary Judgment. Signed by District Judge F. Kay Behm. (KCol)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHATINA GRADY and DANIEL
GRADY,
v.

Case No. 22-cv-11142
Hon. F. Kay Behm
United States District Judge

Plaintiffs,

Hon. Kimberly G. Altman
U.S. Magistrate Judge

SGT. DEPUTY JOHN
CRATSENBURG, DEPUTY
AUSTIN PEARSON, DEPUTY
DANIEL BUFFA,
Defendants.
___________________________ /

OPINION AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF No. 69)
This case is about a married couple’s claims of false arrest,
excessive force, and retaliation for their First Amendment expression
when they were jointly arrested involving use of force after they filmed
a police encounter, yelled at police, failed to back away from an active
investigation, and resisted arrest in May 2020. Because they stood at a
distance while they filmed and shouted at police, the court finds that a
reasonable jury could rule in their favor as to their First Amendment
retaliation claim, and that qualified immunity does not bar that claim.
However, qualified immunity does bar relief on Mr. Grady’s excessive
1

force claim as to taser use, Ms. Grady’s active resistance to arrest bars
her excessive force claim as to fist strikes, and the existence of probable
cause for failure to comply with a lawful order prevents recovery for the
rest of Plaintiffs’ claims.
I.

PROCEDURAL HISTORY
This matter is before the court on Defendants’ Motion for

Summary Judgment (ECF No. 69). Plaintiffs Shatina Grady and
Daniel Grady (jointly the “Gradys”) 1 filed suit on May 24, 2022, against
Defendants John Cratsenburg (“Cratsenburg”), Austin Pearson
(“Pearson”), and Daniel Buffa (“Buffa”), as well as former Defendants
Washtenaw County Sheriff’s Office, Ypsilanti Police Department, and
Bryan Gerwig, and this case was assigned to the Honorable Judith E.
Levy. ECF No. 1. The Ypsilanti Police Department was dismissed by
the parties’ stipulation and order of the court on January 4, 2023. This
case was reassigned to the undersigned pursuant to Administrative
Order 23-AO-003 on February 7, 2023. Following a motion to dismiss

1At times in the court record, Plaintiffs are referred to, or their names are

spelled as, Sha’Teina Grady-El and Daniyal Grady-El (or similar alternative
spellings). For consistency, and after consultation with Plaintiffs’ counsel on the
record, the court uses the spelling used on the First Amended Complaint (ECF No.
46). When alternate spellings are used in this opinion, they are used when citing to
the record.
2

by the Washtenaw County Sheriff’s Office (“WCSO”), Magistrate Judge
Altman recommended that WSCO be dismissed because Plaintiffs failed
to state a claim under Rule 12(b)(6) (ECF No. 31). This court accepted
and adopted that recommendation, dismissing WSCO from the case on
September 1, 2023 (ECF No. 45). An amended complaint was then filed
(ECF No. 46). Bryan Gerwig was also dismissed by stipulation of the
parties and order of this court on November 15, 2024 (ECF No. 78). The
remaining (current) Defendants – Buffa, Cratsenburg, and Pearson –
filed a Motion for Summary Judgment on all claims on October 16, 2024
(ECF No. 69). Plaintiffs responded (ECF No. 75), and Defendants filed
a reply (ECF No. 79). The court held oral argument on December 12,
2024, at which counsel for all parties were present, and this opinion
follows.
For the reasons set out below, the court DENIES the motion as to
Count I but GRANTS the motion as to all remaining counts.
Defendant Buffa is DISMISSED from the action in full.
II.

FACTUAL BACKGROUND
This case arises from the Gradys’ arrests by Defendants

Cratsenburg and Pearson, police officers with the Washtenaw County

3

Sheriff’s Office (“WCSO”). Shortly after midnight on May 26, 2020, all
three Defendants responded to a call regarding a shooting in Ypsilanti,
Michigan. ECF No. 69-5, PageID.1992-93. A witness informed deputies
that the shooter had entered a nearby house. See ECF No. 69-3,
PageID.1742; ECF No. 69-5, PageID.1974.
Police surrounded that house and Defendant Buffa, also with
WCSO, began speaking with an occupant through a front window,
seeking permission to enter to search the home for the shooter. As
neighbors gathered to watch, the Gradys filmed the police from the
sidewalk nearby. Shatina Grady yelled from a distance at the officers
that police needed a warrant to enter, asking to see a warrant, and
other similar phrases. Daniel Grady occasionally joined in. Pearson
and Cratsenburg told the Gradys that they were standing too close and
repeatedly ordered them to back up. After the occupants of the home
refused to allow officers to enter without a warrant, Defendants
Cratsenburg and Pearson went to arrest Plaintiffs for interfering with
and/or obstructing an investigation, and a struggle ensued before the
Gradys were handcuffed and arrested. The Gradys were criminally
charged with assaulting, resisting, or obstructing a police officer under

4

Mich. Comp. L. § 750.81d(1); Shatina Grady was also charged with a
violation of § 750.81d(2) (causing a bodily injury to an officer) and
malicious destruction of police property under Mich. Comp. L. §
750.377b (damaging the interior of the police cruiser while inside it).
Plaintiffs were acquitted on all criminal charges by a jury in January
2024. The Gradys brought this civil suit under 42 U.S.C. § 1983 and
related state law claims in May 2022, which was ongoing while their
criminal charges were pending.
Defendants have provided various exhibits in support of their
motion which aid in providing an accounting of the events at issue.
These include body cam videos from Pearson (Defendants’ Exhibit 3,
ECF No. 69-4) [hereinafter Pearson Bodycam at [timestamp] 2],
Cratsenburg (Defendants’ Exhibit 6, ECF No. 69-7) [hereinafter
Cratsenburg Bodycam at [timestamp]], as well as an interior Vehicle
Camera (Defendants’ Exhibit 10) [hereinafter Vehicle Cam at

2 For clarity, the court uses the timestamps on the original videos themselves,

not the timestamp of the clipped portion. For example, on Pearson’s bodycam, at
the beginning of the media exhibit provided, the top right of the screen reads 202005-26 00:20:18 -1400. The court uses the timestamp 00:20:18 as its reference.
Timestamps are often used in this opinion with one colon (e.g., 00:00). When
provided in that form, there are two (deleted) leading zeros (e.g., 00:40:00 becomes
40:00).
5

[timestamp]]. All are available as media files. Also relevant are the
trial transcript from the Gradys’ criminal trial (Defendants’ Exhibits 4
and 5, ECF Nos. 69-5, 69-6) [hereinafter Trial Tr. Vol. I or II at [page]],
Shatina Grady’s deposition transcript (Defs’ Exhibit 8, ECF No. 69-9)
[hereinafter Shatina Grady Dep. at [page]], Daniel Grady’s deposition
transcript (Defs’ Exhibit 9, ECF No. 69-10) [hereinafter Daniel Grady
Dep. at [page]], and the transcript of the Gradys’ preliminary exam in
state court (Defs’ Exhibits 7, 12, ECF Nos. 69-8 (Vol. I), 69-13 (Vol. II))
[hereinafter Preliminary Exam Vol. I or II at [page]].
What follows is a more detailed accounting of those events based
on the parties’ testimony, the video evidence, and other exhibits.
A.

Police investigate a shooting and seek entry to a
house

Defendants responded to a call regarding a shooting at a block
party on Peachcrest Street in Ypsilanti, Michigan. ECF No. 69-5,
PageID.1992-93. 3 Deputies canvassed the area and found a woman
with a gunshot wound in a vehicle. As one deputy administered aid, the

3 Trial Tr. Vol. I at 186 (Buffa testimony).

6

woman informed deputies that the shooter had entered a house down
the street at 2714 Peachcrest. ECF No. 69-6, PageID.2233. 4
Buffa arrived on the scene and approached the home at 2714
Peachcrest with other officers, who surrounded the house. ECF No. 695, PageID.1993. 5 Buffa was the officer assigned to make contact with
the people inside; he then spoke with a woman through the front
window of the home while other officers surrounded the house. Id. at
PageID.1994-95. 6 As the officers stood in position and Buffa spoke with
the woman inside, spectators gathered on the sidewalks and street
nearby. See id. at PageID.1996-97. 7
Buffa’s intent in speaking with the homeowner was because, all
agree, no exigent circumstances existed to enter the home without a
warrant. See ECF No. 69-5, PageID.2006. 8 The officers did not have a
warrant, but police can still search a home without a warrant with
4 Trial Tr. Vol. II at 44 (Turpin testimony).

scene and is not a defendant in this case.

Turpin was another officer on

5 Trial Tr. Vol. I at 187 (Buffa testimony).
6 Trial Tr. Vol. I at 188-89 (Buffa testimony).
7 Trial Tr. Vol. I at 190-91 (Buffa testimony).
8 Trial Tr. Vol. I at 200 (Buffa testimony).

7

proper consent. 9 The officers sought that permission in this
conversation. ECF No. 69-6, PageID.2236.
B.

The Gradys arrive on scene, start filming, and argue
with police

Though unknown at the time to any Defendant, the house they
were investigating and seeking entry to belonged to Jaquisy Diggins,
Shatina and Daniel Grady’s daughter. The Gradys lived only a few
houses down at 2744 Peachcrest. ECF No. 69-9, PageID.2598, 2600; 10
e.g. ECF No. 69-5, PageID.2013 (officers learned their familial
relationship afterward). 11 The Gradys had heard a gunshot down near
their daughter’s house and earlier walked down to her house; when they
heard people calling the police, the Gradys returned to stand in their
own front yard. ECF No. 69-9, PageID.2675-86. 12 A neighbor then

9 The search of property without a warrant or probable cause, but with proper

consent voluntarily obtained, does not violate the Fourth Amendment. Schneckloth
v. Bustamonte, 412 U.S. 218 (1973); United States v. Clutter, 914 F.2d 775, 777 (6th
Cir. 1990), cert. denied, 499 U.S. 947 (1991) (“[a] search does not violate the Fourth
Amendment where police obtain consent to search from one who possesses common
authority over the premises.”).
10 Shatina Grady Dep. at 15, 17.
11 Trial Tr. Vol. I at 207 (Buffa testimony).
12 Shatina Grady Dep. at 92-103.

8

came and told them that the police were seeking entry to their
daughter’s home. The Gradys then walked back down the sidewalk
towards their daughter’s house, stopping at the corner of 2714 and the
neighboring house. Id. at PageID.2686-89. Pearson confirms this
account, saying that “two individuals approached from the -- they
approached from the east side of the perimeter.” ECF No. 69-5,
PageID.2030. 13 The Gradys are indistinctly visible as they walk up on
Cratsenburg’s bodycam footage. Cratsenburg Bodycam at 41:55-42:12.
Shatina Grady can be seen walking along fence line to the corner of
property.
By the time the Gradys walked up, police vehicles were out on the
street in front of 2714 Peachcrest, and officers were in the driveway and
stationed around the house. ECF No. 69-6, PageID.2281. 14 Buffa was,
as explained, at the front window speaking with someone inside.
Pearson puts it like this: “at that point, we’re basically holding a
perimeter on the street, trying to keep people away as much as we can.”

13 Trial Tr. Vol. I at 224 (Pearson testimony).
14 Trial Tr. Vol. II at 92 (Cratsenburg testimony).

9

ECF No. 69-5, PageID.2026. 15 “The perimeter was basically the entire
property of Peachcrest. There was the driveway where my – where I
was in. There were deputies at the north end of the street behind
vehicles. And due to us not having enough deputies, we only had a
patrol car on the east side where the [Gradys walk] up.” Id. at
PageID.2030-31. 16 There was no police tape or other markers put up
establishing this perimeter. Id. at PageID.2113. One officer was
stationed directly across the street with a long gun behind a vehicle; his
role was to provide cover to the officers from a distance. ECF No. 69-6,
PageID.2281. 17 Another officer was stationed with him because
spectators had gathered around that same spot across the street. Id.
Because some of the question of the Gradys’ alleged interference
or obstruction relates to the officers’ orders for them to “back up,”
multiple accounts exist describing exactly where the Gradys stood when
they walked up to 2714 Peachcrest, with only slight variations between
them. Shatina Grady describes their location as next to the fence in

15 Trial Tr. Vol. I at 220 (Pearson testimony).
16 Trial Tr. Vol. I at 307 (Pearson testimony).
17 Trial Tr. Vol. II at 92 (Cratsenburg testimony).

10

front of the next-door neighbor’s house, near or at the corner of her
daughter’s lot. ECF No. 69-9, PageID.2689, 2692. 18 Daniel Grady
describes their position as “past the fence line, probably right in front of
their police cruiser.” ECF No. 69-10, PageID.2914. 19 A fence line
separates the two properties; in his account they stood on the side of the
fence line closer to the neighbor’s house. 20 Cratsenburg puts them at
the fence line, by the “southeast corner of the property line by the fence
and sidewalk.” ECF No. 69-13, PageID.3081, 3092. 21 Pearson says
there was “a patrol car at the end of the next property where the one
that we were surrounding was” and puts the Gradys “just in front of the
patrol car,” “right at the fence line, so, they were within our perimeter
that we had set up.” ECF No. 69-8, PageID.2466-67. 22 Cratsenburg at
one point placed the Gradys “standing on the grass right next to the

18 Shatina Grady Dep. at 106, 109.
19 Daniel Grady Dep. at 88.

At times, the use of phrases such as “past” the fence line, “on the other
side” of the line, “beyond” the line do not clearly indicate a direction. At this stage,
and in light of the video largely confirming his account, the court construes any
ambiguity in his favor and assumes he is on the neighbor’s side of the fence.
20 Id.

21 Preliminary Exam Vol. II at 76, 87 (Cratsenburg testimony).
22 Preliminary Exam Vol. I at 15 (Pearson testimony).

11

sidewalk” (ECF No. 69-6, PageID.2284), 23 but he later disavowed that
portion of testimony. ECF No. 69-6, PageID.2309-10. 24 The video
confirms the basic area. The clearest view is when the officers move
towards the Gradys, though they are also at times visible on the
bodycams in the distance. 25 The Gradys appear to stand on the
sidewalk in front of the police cruiser situated at or around the property
line/fence line between the two houses. See Cratsenburg Bodycam at
46:29-32; Pearson Bodycam at 46:29-32. The point is that there is about

23 Preliminary Exam Vol. II at 95 (Cratsenburg testimony); see also ECF No.

69-5, PageID.1997, 2012, Trial Tr. Vol. I at 191, 206 (Buffa testimony) (placing the
Gradys in the front yard); ECF No. 69-6, PageID.2270 (Turpin testimony) (stating
that Shatina Grady was not on the sidewalk, but in the front yard).
24 Trial Tr. Vol. II at 120-21 (Cratsenburg testimony); see also id. at

PageID.2284, 2291, 2316 (placing them on the sidewalk); ECF No. 69-10,
PageID.2914, Daniel Grady Dep. at 88 (“I was never in their yard.”); ECF No. 69-5,
PageID.2030, Trial Tr. Vol. I at 224 (Pearson testimony) (“[T]hey were along the
sidewalk up to the driveway of the next house over.”).
25 For most of the encounter, Pearson’s bodycam footage does not clearly

depict the Gradys at all – most of the time, only their voices are heard; the videos
are pointed mainly at the house (Pearson’s camera, facing the house behind a red
vehicle, mostly shows the red vehicle). They do appear indistinctly in the lower left
corner of Cratsenburg’s bodycam footage. See, e.g., Cratsenburg Bodycam at 42:3045:20. Mr. Grady appears to be behind the fence line; Shatina Grady appears to be
right at or right behind the fence line. See id. at 43:36, 44:05. Before the encounter
proceeds to an arrest, they are only visible for an instant on Pearson’s bodycam. See
Pearson Bodycam at 45:14, 45:50. In those seconds, it similarly appears that Daniel
Grady is clearly behind the fence/property line, while Shatina’s exact position is
unclear or possibly a foot or two within the property line.

12

a five-foot-wide area where the Gradys stood, and all agree that was the
area near the corner of the property police were investigating, right
about at the fence line, which placed them near the front of a patrol car
which was parked in the street, facing the 2714 Peachcrest property.
Other spectators present stood across the street behind the police cars
on the front lawn of the house opposite from 2714 Peachcrest. See
Cratsenburg Bodycam at 46:20. All agree that until the officers walked
over to the Gradys, there was no officer at the corner of the property
where the Gradys stood. ECF No. 69-5, PageID.2089. 26
Once standing somewhere near the corner of the property, the
Gradys took out their phones and started filming. 27 At this point,
Cratsenburg is positioned on the side of the house, a few feet away from

26 Trial Tr. Vol. I at 283 (Pearson testimony).
27 For purposes of this motion and construing all ambiguous facts in their

favor, the court will assume they did so. Whether the Gradys actually filmed
anything at all, or what happened to the videos they did take, is not clear from the
record before the court. Daniel Grady alleges that he had only a short video on his
phone, which was no longer there by the time of his deposition, and Shatina also
had no video of the event on her phone by the time of her deposition. ECF No. 6910, PageID.2889 (Daniel Grady Dep.) (testifying that he gave a copy to his criminal
defense attorney and the rest “disappeared”); ECF No. 69-9, PageID.2704-05
(Shatina Grady Dep.) (testifying that it was deleted). Neither alleged video has
been produced in this case. Nonetheless, they stated at the time that they were
filming and no witness has disputed that their phones were out or that they were
apparently filming.

13

Buffa, who is speaking with the occupants of the house. Cratsenburg
Bodycam at 42:00. Pearson is stationed behind a red vehicle in the
house’s driveway. Pearson Bodycam at 42:00. Seconds after the Gradys
arrive, Pearson and Cratsenburg tell the Gradys to back up. This is the
first verbal contact between the officers and the Gradys. ECF No. 69-2,
PageID.1688. 28
To summarize what comes next, Shatina Grady starts to speak to
the officers in response, and gradually becomes louder and starts to yell.
Daniel Grady occasionally speaks or yells, though most of the testimony
in their criminal trial proceedings focuses on Shatina’s volume and
remarks. Their exchange goes on for about three minutes, and the
court recounts that exchange as follows: 29

28 Cratsenburg Bodycam Transcript.
29 The following transcription is a mix of sources, combined to provide a

single streamlined account of the exchange. A few notes are warranted. First, the
court reduces the back-and-forth to include only exchanges between the officers and
the Gradys and omits other portions of the transcripts and audio. The omissions
primarily consist of back-and-forth between unidentified speakers, who are usually
Deputy Buffa and individuals inside the house. Buffa speaks with individuals in
the house throughout this entire exchange while he attempted to gain permission to
search the home for the unidentified shooter. At times, and where potentially
relevant, the court notes what is happening in that separate (though
contemporaneous) conversation. Where the same speaker has multiple lines in a
row, the break generally indicates omitted crosstalk by other parties. Second, the
court sources this accounting from the transcription of Cratsenburg’s body cam

14

DEP. PEARSON: (calling across the yard to the
Gradys) Stay back. Stay back.
DEP. PEARSON: Ma’am?
SGT. CRATSENBURG: Back up.
MS. GRADY: What?
DEP. PEARSON: Back up.
MS. GRADY: I’m far enough back. I’m not on
this property.
SGT. CRATSENBURG: You need to back up
now.
MS. GRADY: I’m not on this property.

provided as an exhibit at ECF No. 69-2, the transcription of Pearson’s body cam
provided as an exhibit at ECF No. 69-3, and the two body cam videos themselves
(ECF 69-4, 69-11, submitted as media files). Quotations are taken specifically from
ECF No. 69-2, PageID.1688-1700 and ECF No. 69-3, PageID.1761-72. When placed
in center block text, quotations are taken from these transcripts at the indicated
page numbers, which accurately reflect the audio from the body cam videos.
Headphones are recommended for audio clarity when viewing the media exhibits.
The court’s version of this exchange, provided here, combines the two transcriptions
(at times, audio is inaudible in one or the other and thus both transcriptions are in
part incomplete). Because the version provided here combines two transcripts and
two different bodycams from different locations, the exact order of phrases may not
be completely accurate. Often, that discrepancy represents speakers talking over
each other and the difficulty of representing what sentence came first. However,
the particular order of each sentence when they overlap is not critical to
understanding the conversation or the result of the analysis. Third, at times the
court substitutes its own transcription of the audio for the official transcription
provided as exhibits. Those edits are marked in square brackets. Comments on
audio quality or overlapping crosstalk are generally noted in parentheses. Fourth,
to provide a clear timeline and narrative, the court intersperses the transcript with
events clear from the videos and other testimony about what it is occurring at that
time.
15

SGT. CRATSENBURG: It doesn't matter. I’m
telling you to back up.
MS. GRADY: No, I’m telling you I’m going to
videotape.
DEP. PEARSON: Okay. You can do that from a
distance. (overlapping)
SGT. CRATSENBURG: You can videotape –
MS. GRADY: It’s my right.
SGT. CRATSENBURG: You can videotape, but
back up.
MS. GRADY: It’s my right.
SGT. CRATSENBURG: Back up.
MS. GRADY: It’s my right. It’s my right. I’m
right here (INAUDIBLE).
SGT. CRATSENBURG: If you don’t back up –
MS. GRADY: You got the whole yard.
SGT. CRATSENBURG: It doesn't matter.
MS. GRADY: You got the whole yard.
(overlapping)
MS. GRADY: Do what you gotta do.
SGT. CRATSENBURG: Back up.
SGT. CRATSENBURG: Next house down, and
you’ll be good. Back up.
16

MR. GRADY: We already did.
MS. GRADY: Be quiet.
One note: although Daniel Grady says “we already did,” no visible
difference exists between the Gradys’ position at the beginning of the
conversation and this point. Compare Cratsenburg Bodycam at 42:17
(around the beginning of the conversation, once Mr. Grady moves to join
his wife in the bottom left of the screen), with id. at 42:47 (the
approximate time that Daniel Grady says “We already did [back up.]”).
Given the video and the Gradys’ own testimony, there is no genuine
dispute of fact that the Gradys did not comply with the order to back
up. ECF No. 69-10, PageID.2915 (Q: “And then you did not comply with
their order?” Daniel Grady: “Correct”); 30 ECF No. 69-9, PageID.2698
(Q: “[T]hey’re giving you an order to back up and you’re saying not
moving, right?” Shatina Grady: “I don’t think I said that, but I don't
know. I didn’t -- I did not move, though.”). 31
SGT. CRATSENBURG: If you don’t back up,
when we’re done here, you’re going to get
arrested.
30 Daniel Grady Dep. at 89.
31 Shatina Grady Dep. at 115.

17

MS. GRADY: Okay, whatever.
SGT. CRATSENBURG: Now, back up.
MS. GRADY: Whatever. And I’ll sue your ass in
federal court.
SGT. CRATSENBURG: Okay. Back up.
(overlapping)
MS. GRADY: I’ll see your ass in federal court.
SGT. CRATSENBURG: I’m telling you to back
up.
MS. GRADY: I’ll sue your ass --- where’s --MS. GRADY: Produce your warrant.
DEP. PEARSON: Back up.
MS. GRADY: Produce your warrant. Produce
your warrant.
SGT. CRATSENBURG: We don’t need a
warrant. Now, back up. 32
MS. GRADY: Who’s got the warrant? I want to
see it. It has – I need a warrant (INAUDIBLE)
(overlapping)
MR. GRADY: Who’s got a warrant?

32 Again, this discussion arises from the need for a warrant or the occupant’s

permission to enter and conduct a search. See note 9.

18

MS. GRADY: (yelling now) Where is the
warrant? Produce a warrant.
In the conversation at the window, a person inside the house says,
“We can’t hear you” to Buffa, who repeats his comment, and their
conversation continues. Other than this one instance, no interruption
happens between Buffa and the people inside the house. 33 Buffa can be
seen speaking about a foot away from the window throughout his
conversation with the occupants. Shatina Grady continues
speaking/yelling in the background.
MS. GRADY: Where is the supervisor?
MS. GRADY: Where is the supervisor?
MS. GRADY: Where is the supervisor?
MS. GRADY: Where is the supervisor here on
the scene?
SGT. CRATSENBURG: I’m right here.
MR. GRADY: Then, where’s your warrant?
MS. GRADY: Then, where’s the warrant?

33 Where the transcriptions indicate there is inaudible crosstalk, it indicates

that the speech is indistinguishable to a reviewer of the bodycam footage. The video
itself shows no interruption, other than this one, to the conversation occurring at
that time between Buffa and the occupants of the house. See, e.g., Cratsenburg
Bodycam at 43:23.
19

SGT. CRATSENBURG: We don’t need a
warrant.
MR. GRADY: You do need a warrant.
MS. GRADY: Produce it. You do, so.
MR. GRADY: You do need a warrant.
MS. GRADY: The constitution that you all swore
an oath to says that you have to produce a valid
warrant.
MS. GRADY: You have to know what you are
searching –
DEP. PEARSON: Ma’am, shut up.
MS. GRADY: -- and exactly where you are
searching it. So, where is the warrant?
At this time, someone inside the house says, “I’m not letting you
touch my house if you don’t have a warrant.” ECF No. 69-2,
PageID.1693. Up until this point, the conversation between Buffa and
people inside the house had been about a) whether Buffa could bring
another officer into the house with him (the speaker had granted
permission for Buffa alone to come inside), and b) the speaker(s)
discussing their concern for the safety of children inside the house and
asking if they could be allowed outside first. See id. at 1686-87, 169192.
20

MS. GRADY: Where is the warrant?
MS. GRADY: You’re violating [violation] their
constitutional rights if you don’t have a warrant.
MS. GRADY: The [Your] warrant has to be
signed by a judge.
MS. GRADY: The warrant has to specify – who
you need to see i[n] the warrant.
MS. GRADY: The warrant has to specify what
places you are searching in the warrant.
MR. GRADY: [With an affidavit.]
MS. GRADY: (crosstalk) Produce a warrant.
MR. GRADY: [With an affidavit.]
MS. GRADY: You swore an oath to the
constitution of [for] the United States of America.
MS. GRADY: And you’re breaking that oath with
what you're doing.
MS. GRADY: [You ain’t got nothing else to say?]
MR. GRADY: (crosstalk) Let it be known -- Let it
be known these Washtenaw County Sheriff’s
Department does not have a warrant.
MS. GRADY: And we’ll be (INAUDIBLE) –
MS. GRADY: -- and will believe (INAUDIBLE).
MR. GRADY: What’s today’s date?

21

MS. GRADY: Today is May 20 –
MS. GRADY: What’s the date here?
DEP. PEARSON: The 26th.
MS. GRADY: Okay.
MR: GRADY: (crosstalk) May 26th.
MS. GRADY: (crosstalk) I’m glad you know,
because tomorrow, your ass will be
(INAUDIBLE).
Buffa leaves the front of the house around this time, and walks up
to Cratsenburg; his efforts to get permission to enter had stalled.
Cratsenburg Bodycam at 44:50.
MR. GRADY: The Washtenaw County Sheriff’s
Department does not have a warrant and trying
to enter the house.
SGT. CRATSENBURG: I’m going to -- Let me go
make a phone call. Can you watch these –
Buffa tells Cratsenburg: “She [the occupant of the house] was
going to let me come in there alone, but I ain’t going in there alone.”
ECF No. 69-2, PageID.1696-97 (Cratsenburg Bodycam Transcript).
Cratsenburg agrees that he won’t go in alone, if at all. Id.
MS. GRADY: You gotta have a warrant, buddy.
I know if you're the supervisor, you already know
that. You have to produce a warrant.
22

Changing his mind, Buffa decides to try one more time: “Okay.
Let me just -- let me make contact with her one more time. Is she still
at the window? Is it still open?” ECF No. 69-2, PageID.1697.
MS. GRADY: I need some names and some badge
numbers, is what I need.
MS. GRADY: We got weapons drawn behind the
truck.
Buffa again meets with the woman at the window and then points
to Cratsenburg and a female deputy, and asks if the three of them can
come in. Cratsenburg Bodycam at 45:32.
Someone in the house tells Buffa, “I’m not letting you in, unless
y’all got a warrant.” Buffa says, “Okay. We’re going to get one and it’s
going to be nasty.” The speaker replies, “Okay. Go get a warrant, and
then y’all can come in.” ECF No. 69-2, PageID.1698. Buffa leaves the
window. Cratsenburg Bodycam at 45:40.
SGT. CRATSENBURG: [referring to the Gradys]
Let’s go deal with them. She’s going.
DEP. PEARSON: All right.
According to Pearson, “it was at that point becoming more of a
distraction and an officer safety issue because the deputies up along in

23

the house were having a hard time hearing. We were having a hard
time hearing what they were talking about. And we’re also now having
to divert our attention to make sure that these people didn’t walk up
into the perimeter further.” ECF No. 69-5, PageID.2031. 34 As to why
only the Gradys were arrested while other spectators were not, he says
that “nobody [else] came close to our perimeter and entered in and
started yelling, so they weren’t interfering with our investigation.” Id.
at PageID.2106. In addressing the same issue in later testimony,
Cratsenburg focused on Shatina Grady’s actions; “[a]ttention was being
diverted from the house to Ms. Grady El, and we needed to be focused
on the house and not outside interference.” ECF No. 69-6,
PageID.2288. 35
At the time, what Cratsenburg said over radio was: “They’re not
allowing us entry in the house. We’re gonna lock it down for now.”
Cratsenburg and Pearson leave their positions by the house to
prepare to arrest the Gradys.

34 Trial Tr. Vol. I at 225 (Pearson testimony).
35 Trial Tr. Vol. II at 99 (Cratsenburg testimony).

24

C.

Defendants Cratsenburg and Pearson arrest the
Gradys

The two officers leave their positions by the house and walk
around “from where [they] were standing by the side doors and the
cars.”
[W]e went -- it would have been south around
where Deputy Corona and I believe it was Deputy
Houk at the time were at across the street with
their long -- long gun behind them so we weren't
in crossfire, and we were out of the – that
immediate area instead of just walking in front of
the door and around to that corner where the
Grady Els were at.
ECF No. 69-13, PageID.3092. 36
This walk out of the driveway, across the street, behind the
vehicles, and back to the opposite corner of the lot is reflected in the
body cam footage. Pearson Bodycam at 46:04-46:30. As they approach,
Shatina Grady can be heard speaking (the exact sentence is not caught
by the audio) as the officers approach.
MS. GRADY: (INAUDIBLE) trust you know that
I (INAUDIBLE).

36 Preliminary Exam Vol. II at 87 (Cratsenburg testimony).

25

MS. GRADY: When you (INAUDIBLE) over
there (INAUDIBLE) day in and day out by you
(INAUDIBLE) policy enforcer.
Pearson and Cratsenburg come within a few feet of the Gradys at
the fence line. Cratsenburg Bodycam at 46:30.
SGT. CRATSENBURG: Put your hands behind
your back. You’re under arrest.
MS. GRADY: No, no.
MR. GRADY: For what?
SGT. CRATSENBURG: Put your hands behind
your back.
MS. GRADY: No, no, no, no.
MR. GRADY: Where’s your warrant?
MS. GRADY: No.
SGT. CRATSENBURG: Interfering –
MS. GRADY: No.
Shatina Grady puts one hand behind her back but keeps her
phone raised in the other hand. Cratsenburg Bodycam at 46:36.
SGT. CRATSENBURG: Back up.
MS. GRADY: I’m not -- no, don’t touch me.
MR. GRADY: Where’s your warrant?

26

Daniel Grady steps in front of Shatina Grady, placing himself in
between her and Cratsenburg. Cratsenburg Bodycam at 46:37.
MS. GRADY: Don’t touch me.
MR. GRADY: Where’s your warrant?
Cratsenburg’s arm moves forward, and both Gradys back up. It’s
not clear whether Cratsenburg was attempting to grab Daniel Grady to
arrest him or whether he was making some other movement with his
arm. Cratsenburg Bodycam at 46:38.
MS. GRADY: Don’t fucking touch me.
Cratsenburg grabs Daniel Grady’s right forearm in an attempt to
begin his arrest. Cratsenburg Bodycam at 46:40. Pearson moves to
arrest Shatina Grady, who is standing behind Daniel. Id.; Pearson
Bodycam at 46:38-40.
At this point, it is useful to track the arrests separately.
i.

Pearson and Shatina Grady

Pearson’s testimony picks up the narrative on Shatina’s arrest:
“As I walked over to Mrs. Grady, I grabbed both of her wrists so that I
could put her in handcuffs. She began to pull away from me.” ECF No.

27

69-5, PageID.2035. 37 “I turned her around, still holding onto her wrist.
She began to pull away.” Id. at PageID.2036. “So, I picked her up and
carried her over to the fence in the front yard there, so that way she
couldn’t run away from me while I tried to apply handcuffs.” Id.
At this point, Pearson’s bodycam footage becomes obscured
because Pearson’s camera is on the front of his chest, which is now
pressed against (or near) Shatina Grady’s back. Pearson Bodycam at
46:39-48; ECF No. 69-5, PageID.2046. 38 Brief glimpses and audio show
a struggle against the fence, but it is not obvious exactly what is
happening. E.g., Pearson Bodycam at 46:52. Relevant testimony
mostly fills in the gaps left by the video.
Pearson says, “As I reach for my handcuffs, I still had ahold of her
left wrist with my left arm, and I felt her bite down onto my left
forearm.” ECF No. 69-5, PageID.2036. 39 At that point, “I struck her in
the back of the head three times with a closed fist.” Id. “[D]uring this
time, I was also telling her to stop biting me.” Id. at PageID.2037.

37 Trial Tr. Vol. I at 230 (Pearson testimony).
38 Trial Tr. Vol. I at 240 (Pearson testimony).
39 Trial Tr. Vol. I at 230 (Pearson testimony).

28

After the third strike, Grady then released her bite on his arm. “I
pulled my arm back and stepped back. She turned around and faced
towards me, and then began to swing at my head and claw at the back
of my head. I grabbed her by the outside of her shoulders and turned
around and took her to the ground at that point.” Id.; Pearson Bodycam
at 46:57. “She landed on her back. I grabbed onto her arms and turned
her onto her chest.” ECF No. 69-5, PageID.2037. 40
“Once I turned her onto her chest, she put her arms underneath
her chest between her and the ground. And then, as I went to reach
under to pull her arms out behind her back, she tried to or did bite my
right forearm as well.” Id. at PageID.2037-38. Pearson then told a
nearby officer that she is biting him and that he needed help. Pearson
Bodycam at 47:13. He then warned Grady that if she didn’t stop she
would get tased. Id. at 47:21. “Officer Gerwig from YPB [Ypsilanti
Police] was standing nearby. I advised him that she tried to bite me
again and asked him to come over and assist me. He came over and

40 There are various references throughout the transcripts to a Facebook Live

video depicting some portion of this event and which was shown to the jury at trial.
E.g., ECF No. 69-5, PageID.1982, Trial Tr. Vol. I at 176 (opening statements).
However, that video was not attached as an exhibit to any party’s briefing on this
motion and was therefore not available or considered by the court.
29

was able to control her right arm while I controlled her left arm. And at
that point, we were able to put her in handcuffs.” ECF No. 69-5,
PageID.2039; Pearson Bodycam at 47:34. A bite mark is visible on
Pearson’s left forearm from 47:28-38 on his body cam.
From 46:39, when Pearson moves to grab Grady’s arm, to when
Grady is shown lying facedown on the ground with her hands behind
her back at 47:30, about 50 seconds passed.
At 47:54 on Pearson’s bodycam footage, Grady says she can’t
breathe. She is laying facedown and the officers are not visibly putting
any weight on her other than an arm each holding her arms in place.
She again says, “Excuse me I can’t breathe.” Pearson Bodycam at
47:59. Pearson responds “Cool. Cool story. Hey Sarge (unclear). She
bit me and I’m bleeding.” Id. at 47:59-48:05. The two officers bring her
to her feet and walk her towards the police vehicle for transport.
Pearson Bodycam at 48:24-48:44. 41

41 An explanation is warranted for the video; although not relevant to this

motion, at this point Pearson takes off running because someone reports seeing a
suspect matching the description of the shooter. ECF No. 69-6, PageID.2296-97,
Trial Tr. Vol. II at 107-08 (Cratsenburg testimony). Cratsenburg ends up taking
Grady the rest of the way to the vehicle. Cratsenburg Bodycam at 49:45-50:30.

30

Grady’s testimony at her deposition regarding this portion of the
incident was largely that she could not recall anything after Pearson
grabbed her. ECF No. 69-9, PageID.2704-06 (“I think I started checking
my video and the next thing I know somebody’s grabbing me . . . I can’t
say that I recall what happened after he grabbed me, to be honest.”). 42
This includes whether she bit Pearson: “I don’t deny it. If they -- if they
said that’s what happened, I don’t recall it.” Id. at PageID.2709. 43 She
then resisted being placed in the police vehicle, kicking at the car.
Cratsenburg Bodycam at 50:50. Once put inside the police vehicle for
transport after her arrest, she told an officer, “Bitch, you want to get bit
too?” Vehicle Cam at 04:52:33-36. 44 She can be seen and heard kicking
at the interior of the vehicle for some moments after. See Vehicle Cam
at 04:53:00-04:54:08 (the video is blurred but kicking is clear around
04:54:00).

42 Shatina Grady Dep. at 121-23.
43 Shatina Grady Dep. at 126.
44 Shatina Grady testified that she does not remember saying that.

69-9, PageID.2750, Shatina Grady Dep. at 167.

31

ECF No.

Grady alleges that she sustained scratches, a “busted lip,” and a
“couple knots” on her head that she attributes to being struck by
Pearson. ECF No. 69-9, PageID.2637, 2642. 45 She did not seek medical
treatment for the scratches or lip. Id. at PageID.2637. She alleges that
she did seek medical treatment for the knots on her head, but cannot
recall where. Id. at PageID.2638. She was not diagnosed with a TBI or
concussion. Id. at PageID.2639.
ii.

Cratsenburg and Daniel Grady

Daniel’s arrest (happening simultaneously, and sometimes right
next to Shatina’s arrest) takes a different form. The court describes the
arrests separately in an effort to more clearly address each plaintiff’s
arguments and individually alleged constitutional violations. The
relevant time that Cratsenburg starts to arrest Daniel Grady is 46:39
on Cratsenburg’s bodycam, at the same time Pearson moves to arrest
Shatina Grady.
SGT. CRATSENBURG: You’re under arrest. Put
your hands behind your back.
MR. GRADY: No, I’m not under arrest. What did
I do?

45 Shatina Grady Dep. at 54, 59.

32

SGT. CRATSENBURG: Put your hands behind
your back.
MR. GRADY: I’m not -- for what?
SGT. CRATSENBURG: Let’s get –
(Unintelligible background yelling.)
While Cratsenburg struggles with or holds Daniel Grady’s
forearm, and speaks with him in a tense but relatively calm
conversation, Pearson and Shatina Grady begin struggling. Yelling
from spectators and perhaps Shatina Grady is audible.
MR. GRADY: What am I under arrest for?
SGT. CRATSENBURG: Interfering in an
investigation.
MR. GRADY: How were we interfering?
SGT. CRATSENBURG: We’re trying to work a
shooting scene.
MR. GRADY: We’re staying.
SGT. CRATSENBURG: And you’re fucking right
up on us.
(Unintelligible background screaming.)
The volume of the background screaming changes – likely in
reaction to Pearson and Shatina Grady’s struggle happening feet away.

33

When Cratsenburg completes the transcribed sentence above, his
struggle (or hold) on Daniel Grady’s forearm changes from a hold to an
increase of force. Cratsenburg Bodycam at 46:51. It is not clear exactly
what is happening, but some sort of struggle is visible for the next few
seconds. Id.
SGT. CRATSENBURG: Back up.
(Unintelligible background screaming.)
Cratsenburg says that Daniel Grady was “kind of . . . pushing,
because he was trying to get to his wife.” ECF No. 69-6, PageID.2292; 46
see Cratsenburg Bodycam at 46:51-59.
SGT. CRATSENBURG: Let go or you’re going to
get tasered.
Cratsenburg: “[T]hen, we pushed him, Mr. Grady El, off. And
then, Deputy Houk pushed him further back, and then I end up tasing
him.” ECF No. 69-6, PageID.2292. 47 Cratsenburg’s body cam confirms
his account, but it shows that immediately after he says “Let go or
you’re going to get tasered,” Grady is either pushed off or relinquishes

46 Trial Tr. Vol II at 103 (Cratsenburg testimony).
47 Trial Tr. Vol II at 103 (Cratsenburg testimony).

34

his grip. Another officer steps in between Grady and Cratsenburg and
apparently pushes Grady backward again. Cratsenburg Bodycam at
46:58-47:00. The other officer comes back into view at 47:02, and
appears to interact with Grady once more. Id. at 47:03. Cratsenburg
deploys his taser on Grady at 47:04-05.
(Unintelligible background screaming.)
SGT. CRATSENBURG: Back up. Back up.
(INAUDIBLE) taser, taser, taser.
From the start of the arrest at around 46:39 to the use of the taser
at about 47:04, about 25 seconds passed. From the time Grady stepped
back or was pushed back to Cratsenburg’s use of the taser, less than
four seconds passed. Daniel Grady’s deposition testimony does not
contain much of his version of events, other than that he does not recall
some relevant events that he was asked about and does not recall
anything after he was tasered. ECF No. 69-10, PageID.2917-18, ECF
No. 69-10, PageID.2942. 48

48 Daniel Grady Dep. at 91-92, 116.

35

Officers then placed Grady in handcuffs. ECF No. 69-6,
PageID.2295. 49 Grady sustained bruises, scrapes, and cuts (ECF No.
69-10, PageID.2927), which later healed. He did not seek medical
treatment after this event. ECF No. 69-10, PageID.2850. 50
Both Gradys were taken to Washtenaw County Jail and have
alleged emotional damages from their arrests. ECF No. 69-10,
PageID.2928, 2943; ECF No. 69-9, PageID.2759.
III. STANDARD OF REVIEW
When a party files a motion for summary judgment, it must be
granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record...; or (B) showing that the
materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1). The standard for

49 Trial Tr. Vol. II at 106 (Cratsenburg testimony).
50 Daniel Grady Dep. at 24.

36

determining whether summary judgment is appropriate is “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.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433,
436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)). Furthermore, the evidence and all reasonable
inferences must be construed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). However, when the record contains “a
videotape capturing the events in question,” the court may not adopt a
“version of the facts for purposes of ruling on a motion for summary
judgment” that “blatantly contradict[s]” the asserted version of events
such that “no reasonable jury could believe it.” Raimey v. City of Niles,
Ohio, 77 F.4th 441, 447 (6th Cir. 2023) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)). And the court must “nonetheless ‘view any
relevant gaps or uncertainties left by the videos in the light most
favorable to the Plaintiff.’” LaPlante v. City of Battle Creek, 30 F.4th
572, 578 (6th Cir. 2022) (quoting Latits v. Phillips, 878 F.3d 541, 544
(6th Cir. 2017)).

37

Where the movant establishes the lack of a genuine issue of
material fact, the burden of demonstrating the existence of such an
issue shifts to the non-moving party to come forward with “specific facts
showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). That is, the party opposing a motion for
summary judgment must make an affirmative showing with proper
evidence and must “designate specific facts in affidavits, depositions, or
other factual material showing ‘evidence on which the jury could
reasonably find for the plaintiff.’” Brown v. Scott, 329 F.Supp.2d 905,
910 (6th Cir. 2004). To fulfill this burden, the non-moving party need
only demonstrate the minimal standard that a jury could ostensibly
find in his favor. Anderson, 477 U.S. at 248; McLean v. 988011 Ontario,
Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, mere allegations or
denials in the non-movant’s pleadings will not satisfy this burden, nor
will a mere scintilla of evidence supporting the non-moving
party. Anderson, 477 U.S. at 248, 251.
In the use-of-force context, “once the relevant set of facts is
determined and all reasonable inferences are drawn in favor of the
plaintiffs, to the extent supported by the record, the question of whether

38

the [officers’] actions were objectively unreasonable is ‘a pure question
of law.’” Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009)
(quoting Scott v. Harris, 550 U.S. at 381 n.8; and citing Dunn v.
Matatall, 549 F.3d 348, 353 (6th Cir. 2008)). But “if there is some
evidence – more than a mere scintilla of evidence – that [the plaintiff],
through his conduct, judged from the perspective of reasonable officers
on the scene, did not give the officers probable cause to believe that he
posed a serious threat of harm, a genuine fact dispute is created.”
Chappell, 585 F.3d at 909 (emphasis removed).
IV.

ANALYSIS
Plaintiffs bring seven counts against Defendants in their

complaint. Plaintiffs first bring several claims under 42 U.S.C. § 1983
alleging violations of the U.S. constitution, and then bring various
related state law claims. In the motions and responses, the arguments
are organized somewhat differently by the parties. For the sake of
efficiency, the court first addresses a single defendant (Buffa) on his
own, and then addresses the other counts for the remaining defendants,
Pearson and Cratsenburg.
A.

Defendant Buffa – Failure to Intervene

39

First, one issue can be considered up front. Defendants argue that
Deputy Buffa was not involved with either plaintiff’s arrest. During the
relevant period at issue in this case, Buffa was speaking with the
homeowner to try and get consent to enter and search the home for the
alleged shooter, with his back to the incident. ECF No. 59,
PageID.1654; see, e.g., ECF No. 69-6, PageID.2237, 2288 (testimony to
that effect). The video confirms that Buffa never spoke with the
Plaintiffs, much less approached them. See also ECF No. 69-5,
PageID.1997. 51 Nor was Buffa standing close by as the arrests
occurred. Plaintiffs’ counsel conceded at oral argument that upon
review of the record, Defendant Buffa was not involved in any alleged
unconstitutional action and may be dismissed from this case.
Considering Plaintiffs’ representation conceding the extent of
Buffa’s liability, the facts presented by Defendants supporting their
motion to award summary judgment to Buffa, and pursuant to Rules 21
and 41 of the Federal Rules of Civil Procedure, the court GRANTS
summary judgment as to Defendant Buffa and DISMISSES Defendant

51 Trial Tr. Vol. I at 191 (Buffa testimony).

40

Buffa from the action as to all counts. The court’s remaining analysis
relates only to Defendants Cratsenburg and Pearson.
B.

Claims under § 1983

To state a claim under § 1983, a plaintiff must establish the
deprivation of a right secured by the Constitution or laws of the United
States caused by a person acting under color of state law. Sigley v. City
of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006). However, 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.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Courts undertake a two-pronged inquiry to determine
an officer’s entitlement to qualified immunity in the excessive force
context, examining both: “(1) whether the officer violated the plaintiff’s
constitutional rights under the Fourth Amendment; and (2) whether
that constitutional right was clearly established at the time of the
incident.” Estate of Hill ex rel. Hill v. Miracle, 853 F.3d 306, 312 (6th
Cir. 2017) (citation omitted). The two prongs can be addressed in any
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Qualified

41

immunity shields an officer’s actions if either inquiry is answered in the
negative. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th
Cir. 2013).
Although Plaintiffs bear the burden of demonstrating that
Defendants are not entitled to qualified immunity, the court views all
facts in the light most favorable to the Gradys. Foster v. Patrick, 806
F.3d 883, 886 (6th Cir. 2015) (citation omitted).
Plaintiff alleges violations of the First Amendment for arresting
them in retaliation of their speech, as well as the Fourth and
Fourteenth Amendments to the US Constitution. The latter set of
violations are alleged as follows:
Plaintiffs’ constitutionally protected rights that
Defendant deputies and officer violated include
the following:
a. the right to liberty protected in the Due
Process Clause of the Fourteenth
Amendment, which includes personal safety
and freedom from captivity;
b. the right to fair and equal treatment
guaranteed and protected by the Equal
Protection Clause of the Fourteenth
Amendment;
c. the right to be secure in their persons,
houses, papers, and effects, against
unreasonable searches and seizures.
42

Defendant deputies and officer, acting under color
of state law, arbitrarily took Plaintiffs into
physical police custody, by violent and excessive
force, without probable cause.
FAC, ECF No. 46, PageID.459.
They also alleged violations of the Eighth Amendment in their
amended complaint. ECF No. 46, PageID.460 (Count III).
The court, for clarity, separates these into six separate
constitutional claims: First Amendment retaliation (Count I), Fourth
Amendment right to be free from unlawful arrest, Fourth Amendment
right to be free from excessive force, Fourteenth Amendment equal
protection, Fourteenth Amendment due process (all contained in Count
II), and Eighth Amendment (Count III). See First Amended Complaint,
ECF No. 46, PageID.457; ECF No. 46, PageID.459; see also Defs’ Motion
for Summary Judgment, ECF No. 69, PageID.1641 (reading Plaintiffs’
claims under Count II in this way). Because the presence or absence of
probable cause is central to the parties’ arguments and several of
Plaintiffs’ claims, the court first addresses the Fourth Amendment
unlawful arrest claim, then follows with the remaining constitutional
claims.

43

i.

Fourth Amendment Violation (Unreasonable Search
and Seizure) (Count II)

The Fourth Amendment guarantees the “right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. To state
a Fourth Amendment false arrest claim, a plaintiff must “prove that the
arresting officer lacked probable cause to arrest the plaintiff.”
Robertson v. Lucas, 753 F.3d 606, 618 (6th Cir. 2014).
Under Mich. Comp. Laws § 750.81d, it is a felony to assault,
batter, wound, resist, obstruct, oppose, or endanger a police officer in
the performance of their duties. To “obstruct” includes the use of
physical interference or force, or a knowing failure to comply with a
lawful command. Id. at (7)(a). The two forms of obstruction are
independent and separable; a person can violate the obstruction statute
by failing to comply with an officer’s lawful command, whether or not
they physically interfere with police. See People v. Moreno, 491 Mich.
38, 67 (2012); United States v. Mosley, 575 F.3d 603, 605 (6th Cir. 2009).
That the command be lawful, however, is critical to the analysis; if a
person is violating the statute only by their failure to comply, they

44

retain a common-law right to resist an unlawful arrest. See Moreno,
491 Mich. at 47 (“one may use such reasonable force as is necessary to
prevent an illegal attachment and to resist an illegal arrest”).
Plaintiffs have asserted, both at their criminal trial and in this
subsequent § 1983 action, that the command for them to back up was
unlawful. Much rides on this claim; if the command for them to “back
up” was lawful, then their failure to comply with that command gave
the police probable cause to arrest them.
A note is warranted here, implicitly recognized by the parties’
focus only on Plaintiffs’ alleged failure to comply: because to “resist” a
police officer or an arrest is an independent violation of § 750.81d, the
Gradys’ resistance to their arrests could be seen to create probable
cause for a valid arrest under the statute here. But the question of
probable cause in this case must rest instead on the threshold question
of whether the officers could arrest the Gradys in the first place for
obstruction by failure to comply. An officer cannot create probable
cause for resisting arrest under § 750.81d by giving an unlawful order
and then moving to arrest someone for failing to comply with that order
– and then somehow transform an unlawful arrest into a lawful one just

45

because the person resists. To hold otherwise would be circular and
would undermine Moreno’s holding preserving the right to resist an
unlawful arrest in Michigan. 52 See Bourgeois v. Strawn, 452 F. Supp.
2d 696, 710 (E.D. Mich. 2006) (although pre-Moreno, noting that the
“argument[] that police can manufacture grounds to arrest a person
innocent of wrongdoing simple by telling him to leave his own home
without any lawful authority to do so and then arresting him for
violating that directive, is a disturbing proposition”); Hulbert v. Pope,
535 F. Supp. 3d 431, 453 (D. Md. 2021) (Maryland) (“[W]here the order
is neither reasonable nor lawful, the failure to obey a lawful order
statute cannot serve as the basis for probable cause.”) (internal citation
and marks omitted), overruled on other grounds in Hulbert v. Pope, 70
F.4th 726, 729 (4th Cir. 2023); Storey v. Taylor, 696 F.3d 987, 994 (10th
Cir. 2012) (New Mexico) (where plaintiff refused to allow police entry to
his home and police lacked other grounds to arrest, plaintiff’s “refusal to

52 The same applies to the Gradys’ failure to comply with the order to put

their hands behind their backs when police moved to arrest them or any other
orders to comply with their arrests. See Defs’ Motion for Summary Judgment, ECF
No. 69, PageID.1651, 1653, 1638. Probable cause for a predicate offense must exist
to begin an arrest in the first place.
46

obey could not justify his arrest” under the resisting and obstructing
statute).
Defendants make three arguments on the probable cause point: 1)
the state court’s decision to bind over the case for trial conclusively
established that there was probable cause, and that decision precludes
this court from even re-examining the issue, 53 2) there was probable
cause to arrest the Gradys under the obstruction statute regardless,
and 3) even if either of the first points were not true, that qualified
immunity bars the Gradys’ claims. The court addresses each argument
in turn.
a)

Issue Preclusion

This court must “give preclusive effect to state-court judgments
whenever the courts of the State from which the judgments emerged
would do so.” Haring v. Prosise, 462 U.S. 306, 313 (1983) (quoting Allen
v. McCurry, 449 U.S. 90, 96 (1980)). Consequently, the threshold

53 Defendants also argue that the Attorney General’s review of the case and

decision to prosecute the Gradys is weighty evidence in this case, both as a matter
of probable cause and of qualified immunity. See ECF No. 69, PageID.1633. The
court disagrees that this is particularly probative; their criminal case involved
many charges, including for the Gradys’ resistance to arrest and Shatina Grady’s
alleged damage to a police vehicle. Their § 1983 case rests on narrower grounds for
probable cause and involves different legal determinations.
47

question is whether rules of collateral estoppel applied in Michigan
state courts would foreclose a litigant in a later-filed § 1983 civil action
from challenging a finding of probable cause previously made in a
preliminary hearing during a criminal prosecution. The answer is
complicated, but the court concludes from Sixth Circuit precedent and
prudential concerns that issue preclusion does not prevent Plaintiffs
from arguing a lack of probable cause in this case.
When collateral estoppel “is asserted defensively to prevent a
party from relitigating an issue that such party has already had a full
and fair opportunity to litigate in a prior suit, mutuality is not
required.” Monat v. State Farm Ins. Co., 469 Mich. 679, 681 (2004).
The party seeking to apply preclusive effect to a prior court
determination must establish that:
1) there was a valid, final judgment in the first
proceeding,
2) the same issue was actually litigated and
necessarily determined in the first proceeding,
and
3) the party against whom the doctrine is asserted
had a full and fair opportunity to litigate the
issue in the earlier proceeding.
Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001) (citing
People v. Gates, 434 Mich. 146 (Mich. 1990)).
48

In general, the Sixth Circuit has held that where “the state affords
an opportunity for an accused to contest probable cause at a
preliminary hearing and the accused does so, a finding of probable
cause by the examining magistrate or state judge should foreclose
relitigation of that finding in a subsequent § 1983 action.” Coogan v.
City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987) (applying Michigan
law), overruled on other grounds, Frantz v. Village of Bradford, 245 F.3d
869 (6th Cir. 2001). The Sixth Circuit has applied this structure to
cases, like this one, where probable cause was at least ostensibly
litigated in a preliminary exam in state court. See Autrey v. Stair, 512
F. App’x 572, 573 (6th Cir. 2013). Nonetheless, under this framework,
when “a plaintiff in a § 1983 cause of action can point to instances
where the consideration of falsehoods or the omission of material
exculpatory evidence could have colored a state-court judge’s probablecause determination, there is no requirement that the initial finding be
given preclusive effect in the federal-court action.” Autrey, 512 F. App’x
at 579 (citing Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir.
2001)). Religation is also permitted under the Coogan framework when
a plaintiff can “differentiate the state-court probable-cause

49

determination from the probable-cause analysis in the federal cause of
action on grounds that additional considerations are at issue in this
litigation,” or “if he can demonstrate that he did not have a ‘full and fair
opportunity to litigate the [probable cause] issue in the earlier
proceeding.’” Id. at 581; see, e.g., Darrah, 255 F.3d at 311 (“[W]e hold
that the state court’s determination of probable cause at the
preliminary hearing is not identical to the issue Darrah argues today,
that being whether Officer Bragg made materially false statements to
the state judge that formed the basis of that court’s probable cause
determination.”)
As to why this is the case, the Coogan court explained that:
[Not] every determination in a preliminary
hearing should be given preclusive effect in a
subsequent § 1983 action. Some preliminary
hearings are little more than formalities. Also,
even when an opportunity for full adversary
proceedings is afforded, strategic concerns may
counsel against engaging in such an exercise at
the early stages of a criminal proceeding.
However, where the state affords an opportunity
for an accused to contest probable cause at a
preliminary hearing and the accused does so, a
finding of probable cause by the examining
magistrate or state judge should foreclose
relitigation of that finding in a subsequent § 1983
action.

50

Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987), overruled on
other grounds in Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir.
2001); see Diamond v. Howd, 288 F.3d 932, 936 (6th Cir. 2002) (citing
Coogan, noting that “given that Diamond was not entitled to discovery
before her state preliminary hearing, it is not at all clear that, even if
she had participated, her preliminary hearing would support collateral
estoppel”). Applying the Coogan standard, courts have split on factual
grounds on whether to apply collateral estoppel. Compare Lemon v.
City of Detroit, No. 19-cv-11343, 2021 U.S. Dist. LEXIS 18418, at *3
(E.D. Mich. Feb. 1, 2021) (“Lemon has failed to show either that
Willhelm omitted evidence with a culpable state of mind or that the
omitted evidence was material to the finding of probable cause.”), and
Bridgewater v. Harris, No. 16-14112, 2020 U.S. Dist. LEXIS 27775, at
*25 (E.D. Mich. Feb. 19, 2020) (bind over in state court had “preclusive
effect since Bridgewater does not ‘point to instances where the
consideration of falsehoods or the omission of material exculpatory
evidence could have colored a state-court judge's decision.’”) (citation
omitted), with, e.g., Hanner v. Black, No. 03-74675, 2005 U.S. Dist.
LEXIS 29668, at *16 (E.D. Mich. Nov. 16, 2005) (“both plaintiffs

51

asserted that the police officers gave false statements at the
preliminary hearings in order to establish probable cause” and therefore
collateral estoppel did not bar claims), Henry v. City of Eastpointe Police
Dep’t, No. 11-10192, 2013 U.S. Dist. LEXIS 49315, at *21 (E.D. Mich.
Apr. 5, 2013) (“A threadbare recitation of the facts does not constitute
evidence that an issue was “actually litigated.”).
However, more recent Sixth Circuit decisions have cast
considerable doubt as to whether this doctrine of estoppel can properly
be applied at all to a § 1983 plaintiff who did not have the opportunity
to fully litigate whether police had probable cause to arrest them in
state court because they were later acquitted by a jury. See Bradley v.
Reno, 749 F.3d 553, 558 (6th Cir. 2014) (criticizing Coogan and similar
cases because they do “not explain why courts should recognize a
§ 1983/probable cause exception to the norm that unappealable rulings
are not eligible for issue preclusion.”); 54 see also Hirmuz v. City of
Madison Heights, 469 F. Supp. 2d 466, 479 (E.D. Mich. 2007) (where the
trial court determined as a preliminary matter that a statement was

54 In Coogan, the plaintiff’s criminal prosecution ended in dismissal on a

speedy trial violation. See Coogan at 172.

52

voluntary but then submitted the case to a jury, the jury’s acquittal
prevented application of collateral estoppel regarding that statement in
later civil action). The Bradley court instead found it more persuasive
that “when an acquittal prevents a criminal defendant from appealing a
ruling, the ruling has no preclusive force.” Id. (citing Jenkins v. City of
New York, 478 F.3d 76, 91-92 (2d Cir. 2007) (New York law) (“[T]he
danger inherent in the doctrine of collateral estoppel—that an
erroneous first decision on an issue will be perpetuated in subsequent
litigation—is remedied by the requirement that the doctrine not be
applied when there is no opportunity for appellate review. . . . This
principle is of substantial import in the context of a criminal proceeding
ultimately dismissed.”); Sornberger v. City of Knoxville, 434 F.3d 1006,
1020-23 (7th Cir. 2006) (Illinois) (“[T]he unavailability of an appeal is
determinative . . . Collateral estoppel therefore cannot bar relitigation
of the voluntariness of [the plaintiff’s] confession.”); Dixon v. Richer, 922
F.2d 1456, 1459 (10th Cir. 1991) (Colorado) (“[The] requirements [of
issue preclusion] have not been met. . . . [The plaintiffs] did not have an
opportunity to appeal the court’s ruling on their motion to suppress.
Before a final judgment, such an interlocutory appeal would have been

53

improper, and after the judgment ([the plaintiffs] were acquitted), an
appeal was rendered moot.”); Sena v. Commonwealth, 417 Mass. 250,
629 N.E.2d 986, 992 (Mass. 1994) (“[T]here was no avenue for review of
the criminal court ruling on the plaintiffs’ motion to dismiss for lack of
probable cause. . . . Thus, the issue of the existence of probable cause to
support the plaintiffs’ arrest is not precluded . . . .”).
These out-of-circuit precedents notwithstanding, a second reason
to consider caution in extending Coogan’s holding to cases where
plaintiffs were ultimately acquitted is that doctrine’s treatment even
within the Sixth Circuit; the application of estoppel to acquitted
plaintiffs has been questioned or is outright not applicable in other
states in this circuit. See Jones v. City of Elyria, 947 F.3d 905, 915 (6th
Cir. 2020) (Ohio law) (“unappealable state-court orders do not have
preclusive effect on parties seeking to re-litigate an issue in a later
case”); see also Wiggins v. Metro. Gov’t of Nashville & Davidson Cty.,
No. 16-5519, 2017 U.S. App. LEXIS 21913, at *6 (6th Cir. May 8, 2017)
(Tennessee) (in a case where defendant was convicted by guilty plea,
“the state trial court found that Wiggins’s arrest was supported by
probable cause, . . . and that the officers’ conduct therefore did not

54

violate Wiggins’s rights under the Fourth Amendment . . . . [h]owever,
because an order denying a motion to suppress does not adjudicate all
the claims, it [wa]s not a final judgment.”) (internal quotation marks
omitted); White v. Wilson, No. 1:18-cv-00093, 2019 U.S. Dist. LEXIS
154122, at *16 (M.D. Tenn. Sep. 10, 2019) (suggesting that collateral
estoppel may not apply to a “defendant who has been granted judicial
diversion in Tennessee [who] has no appeal as of right to the state court
of appeals”); Donovan v. Thames, 105 F.3d 291, 298 (6th Cir. 1997)
(Kentucky) (collateral estoppel applied because defendant “could have
appealed his conviction,” suggesting the result might differ if no appeal
was available); Walker v. City of Leb., No. 3:12-CV-855-H, 2013 U.S.
Dist. LEXIS 166851, at *9 (W.D. Ky. Nov. 23, 2013) (dismissing
plaintiff’s claims of wrongful arrest where he had been convicted on
collateral estoppel grounds, but noting plaintiff’s pending criminal
appeal and permitting plaintiff to refile if successful because “a reversal
of his conviction [was] material” to the issues presented); Lyvers v.
Newkirk, No. 1:15-CV-00096-GNS, 2017 U.S. Dist. LEXIS 201340, at
*12 (W.D. Ky. Dec. 7, 2017) (A “preliminary hearing is held to
determine whether there exists probable cause that a crime was

55

committed, not to determine whether the police had probable cause at
the moment of the arrest.”). While the test for applying collateral
estoppel is a matter of state law, the application of that test to § 1983
claims is a matter for federal courts. The trend of federal courts
considering the similar laws of other states in this circuit is suggestive
of the doctrine’s problematic application in cases of acquittal.
Even in cases only applying Michigan law, the Sixth Circuit has
reached contrary conclusions. Autrey, which is a nonbinding 2013
unpublished decision of the court of appeals, applied collateral estoppel
against a Michigan plaintiff seeking to relitigate the probable cause
determination who had been acquitted at trial, because the plaintiff was
represented by competent counsel at his preliminary examination (and,
in that panel’s view, thus complied with Coogan’s test for a full and fair
hearing). See Autrey, 512 F. App’x at 582. That unpublished decision is
at odds with the published Bradley decision, which is also more recent
and cast doubt on Coogan when it stated that “acquittal prevents a
criminal defendant from appealing a ruling, the ruling has no
preclusive force.” Bradley v. Reno, 749 F.3d 553, 558 (6th Cir. 2014).
Bradley applies Ohio law, but to the extent that its holding would

56

extend to Michigan law as well, see Bradley at 558 (criticizing Coogan’s
application to preliminary probable cause findings on substantive
grounds regardless of the particular state’s law), the results in
unpublished Michigan district court decisions largely have not applied
it. See, e.g., Cosgrove v. Pettigrew, No. 21-cv-10379, 2022 U.S. Dist.
LEXIS 194878, at *13-14 (E.D. Mich. Sep. 26, 2022) (“An arrest
grounded in probable cause does not become invalid merely because the
State chooses not to prosecute the individual or a jury opts for
acquittal.”); Ratcliff v. City of Detroit, No. 2:19-cv-13458, 2021 U.S. Dist.
LEXIS 227516, at *8 (E.D. Mich. Nov. 29, 2021) (video of the incident
was sufficiently exculpatory and not considered in state court
proceedings and therefore collateral estoppel did not apply). The Sixth
Circuit, however, very recently applied a Bradley-like standard to
Michigan when it concluded, in a case applying Michigan law, that
because a jury ultimately acquitted the plaintiff/defendant, he could not
have appealed the state court’s unfavorable interlocutory ruling that
the officers had probable cause to arrest him, and therefore issue
preclusion did not apply in his later § 1983 action. See Koelzer v.
Westrick, No. 22-1835, 2024 U.S. App. LEXIS 11287, at *8 (6th Cir. May

57

7, 2024); see also Blackwell v. Nocerini, 123 F.4th 479, No. 24-1186,
2024 U.S. App. LEXIS 31785 (6th Cir. Dec. 16, 2024) (also Michigan)
(not even addressing whether plaintiff would be collaterally estopped
from relitigating probable cause where he was acquitted at a state court
trial); but see Harcz v. Boucher, 763 F. App’x 536, 544 (6th Cir. 2019)
(applying Coogan but reversing dismissal on the pleadings where
plaintiff plausibly alleged that the probable cause determination relied
on misleading testimony). Thus even in Michigan, a more recent trend
of the Sixth Circuit has disfavored the application of Coogan’s holding
to cases where a plaintiff was acquitted at their criminal trial and that
acquittal rendered the preliminary probable cause determination
unappealable.
A third consideration counsels restraint from applying the
collateral estoppel doctrine in cases of acquittal; “Michigan case law
does not equate the probable cause to support an arrest with the
probable cause to bind a defendant over for trial, which is conclusive on
the issue.” Ratcliff v. City of Detroit, No. 2:19-cv-13458, 2021 U.S. Dist.
LEXIS 227516, at *7 n.2 (E.D. Mich. Nov. 29, 2021) (citing People v.
Cohen, 294 Mich. App. 70, 74 (2011) (holding that probable cause to

58

support an arrest is not equivalent to probable cause to bind a
defendant over for trial)); see also Sanders v. Sears, Roebuck & Co., 984
F.2d 972, 975 (8th Cir. 1993) (North Dakota) (state court motion for
dismissal for lack of probable cause clearly referred to whether there
was sufficient evidence to go to the jury, not whether there was
sufficient probable cause for arrest, and therefore the district court
erred in applying collateral estoppel). Here, the trial court considered
whether there was probable cause to bind over for alleged violations of
§ 750.81d for not only the Gradys’ alleged failure to comply, but also the
Gradys’ alleged resistance to their arrests. But as explained above, the
question for the purposes of a later civil suit for false arrest must
necessarily focus on only the first question, which could yield a different
answer.
In consideration of the above, the court finds that collateral
estoppel does not bar Plaintiffs’ litigation of probable cause. In so
finding, the court follows the Sixth Circuit’s holdings in Bradley and
Koelzer and agrees with the problems posed by application of collateral
estoppel to a claim where the plaintiff was acquitted and therefore had
no opportunity to appeal the state court’s preliminary probable cause

59

determination. Therefore, there was never a “final judgment” under the
collateral estoppel rule. Further, in Michigan, the probable cause
standard for arrest is not the same as the one for bind over, the
probable cause standard was never reviewed at the arrest stage, and
thus there was never a “full and fair” determination of that standard
specifically. Thus probable cause was not “necessarily determined in
the first proceeding” and does not bind this court.
b)

Probable Cause

The court must therefore consider whether there remains a
dispute of material fact as to whether the police had probable cause to
arrest the Gradys for obstruction (here: failure to comply with a lawful
order, or obstruction via their yelling, primarily Shatina Grady’s).
To determine whether an officer had probable cause for an arrest,
a court should “examine the events leading up to the arrest, and then
decide ‘whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to’ probable cause.”
District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quoting Maryland
v. Pringle, 540 U. S. 366, 371 (2003) (second quoting citation omitted)).
Because probable cause “deals with probabilities and depends on the

60

totality of the circumstances,” Pringle, 540 U. S., at 371, it is “a fluid
concept” that is “not readily, or even usefully, reduced to a neat set of
legal rules.” Illinois v. Gates, 462 U. S. 213, 232 (1983). It “requires
only a probability or substantial chance of criminal activity, not an
actual showing of such activity.” Id., at 243-244, n.13, (1983). Probable
cause “is not a high bar,” Kaley v. United States, 571 U. S. 320, 338
(2014), and requires only the “kind of ‘fair probability’ on which
‘reasonable and prudent [people,] not legal technicians, act.’” Florida v.
Harris, 568 U.S. 237, 244 (2013) (quoting Gates, 462 U.S. at 231).
Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at
the time of the arrest. Pringle, 540 U.S. at 371. While the complaint in
this case raises questions about the motivations of the arresting
officers, the Supreme Court has held that the officers’ statements and
subjective motive are irrelevant under Fourth Amendment analysis.
Devenpeck v. Alford, 543 U.S. 146, 154 (2004).
1.

Critical speech as obstruction

The first question is whether either Plaintiffs’ speech – but
specifically Shatina Grady’s – could have given rise to probable cause

61

for obstructing police in their duties. Defendants have argued that this
is one method by which there was probable cause that they violated
§ 750.81d, by “shout[ing] at the officers, diverting the officers’
attention.” ECF No. 69, PageID.1645. Some cases suggest this
construction of § 750.81d is possible. For example, in King v. Ambs, a
Michigan police officer went to a house’s front door to question the
occupant about marijuana found in a parked vehicle. 519 F.3d 607 (6th
Cir. 2008). The officer began by asking them to step outside their house
and speak with him. A drunk neighbor standing close by (King) urged
the suspect not to leave the house and advised him that he did not have
to talk to the officer. Id. at 609. The police officer testified that King
spoke over him. King claimed that he was not speaking over the officer,
and that he in no way physically or verbally interfered with the officer’s
attempt to speak with the suspect. The officer then arrested King, and
he was charged with opposing an officer in the performance of his duty.
The state court dismissed the criminal charges under the theory that
the statute prohibited only “actual physical interference.” Id. at 610.
But in King’s subsequent action under § 1983, the district court and the
Sixth Circuit disagreed, holding that King’s “verbal interference” with

62

the officer’s investigation amounted to a “physical interruption of the
questioning,” which provided probable cause for his arrest. The line
drawing here seems to be one of volume, tone, tenor, and physical
nearness – evaluating when speech becomes verbal conduct. See Patrizi
v. Huff, 821 F. Supp. 2d 926, 932-33 (N.D. Ohio 2011) (“[I]f a
defendant’s speech transforms into verbal conduct, then
this conduct can constitutionally be criminalized.”). In Patrizi, an
officer investigating a possible assault at a club began investigating and
questioning a group of individuals. A lawyer, Patrizi, joined the group
and began asking questions like “is she in custody?” Id. at 929. As the
encounter continued, Patrizi asked the officers more questions: “[D]o
you consider my client a suspect? Why are you questioning them?
What are they being charged with?” Id. The officers testified that they
ordered her to leave; Patrizi disputed that testimony. When she
allegedly refused to leave, however, police arrested her. In her
subsequent § 1983 suit, the Ohio district court found that, under Ohio
law, no probable cause existed to arrest the plaintiff for obstruction
because she “did not conduct herself in a belligerent or argumentative
manner[,]” “[n]or did she shout or refuse to desist in her course of

63

conduct[.]” Id. at 933. Similarly, in another case under Ohio law, the
court of appeals considered a criminal appeal seeking to reinstate
charges under Cleveland’s obstruction ordinance. See City of Cleveland
v. Kristoff, 2002-Ohio-1265, 2002 WL 441584 (Ct. App. Mar. 21, 2002).
The defendant, Kristoff, “noticed his friend being questioned,” and then
requested that the detectives provide identification, to which neither
detective responded.
Kristoff repeatedly told his friend that he was not
required to answer any questions until the
detectives provided identification proving that
they were, in fact, detectives. In an attempt to
dissuade Kristoff from interfering, the detectives
warned Kristoff that he was hampering an official
investigation. Kristoff ignored the warnings and
continued.
Id.
The court of appeals affirmed that the charge unconstitutionally
infringed on the defendant’s First Amendment rights:
Kristoff’s comments may have disturbed the
detectives insofar as their investigation was in
abeyance while the detectives turned to Kristoff
to warn him about interfering. However, the City
presented no evidence that Kristoff's encouraging
statements advising his friend of his right to
refrain from answering the detectives’ questions
were spoken so boisterously and in such a

64

manner as to prevent the detectives from
carrying out their duties.
Id.
Here, Shatina Grady told police (or shouted at them, depending on
which statement): “You do need a warrant,” “Produce a warrant,”
“Where is the supervisor,” “I’ll sue [you] in federal court,” “You’re
violating their constitutional rights if you don’t have a warrant,” and
more statements of that nature. Like the above cases, her statements
are largely critical of police (or implicitly encourage a third party to
(legally) not do what the police are asking them to do).
As the court has noted above, the video evidence shows only a
single instance where Shatina Grady’s yelling actually (and very
briefly) interrupts the conversation happening between Buffa and the
house’s occupants. See supra note 33 and accompanying text. True,
Cratsenburg and Pearson spent time telling her to “shut up,” “back up”
and otherwise responding to her. But analogizing to City of Cleveland
v. Kristoff, a reasonable jury could easily conclude that her yelling alone
was not physical obstruction in violation of Mich. Comp. L. § 750.81d
because the video confirms that her yelling did not in fact prevent police
from carrying out their duties and she never approached beyond the
65

corner of the property. Cratsenburg and Pearson’s duties included
securing the scene, which presumably included the act of keeping out
the Gradys, so any “distraction” by having to perform this duty is surely
of low probative value. That the house’s occupants did eventually
refuse entry to the police, possibly because Grady kept yelling that
police needed a warrant, is also immaterial; like the friend being
questioned in Kristoff, it was always their right to refuse entry and
cannot constitute proof of obstruction (unlike the situation where a
vehicle’s occupant has no right to ignore an order to get out of their car
or produce identification in a Terry stop, and the failure to do so can be
obstruction). See People v. Kinsinger, No. 364639, 2024 Mich. App.
LEXIS 7292, at *1 (Ct. App. Sep. 19, 2024).
Still, under King v. Ambs’ construction of § 750.81d, there
arguably could have been probable cause to arrest Shatina Grady for
the volume of her shouting, because perhaps an officer could have
reasonably questioned whether her shouting physically interrupted
their attempt to gain entry to the house by diverting their attention
(even if it did not, in fact, amount to obstruction of the conversation).
But differentiating criminality between and yelling criticism from a

66

distance and politely criticizing police in a measured tone is “slicing the
baloney mighty thin[,]” 55 introduces a strange tone-policing into First
Amendment analysis that does not belong, 56 and may not be a valid
interpretation of Mich. Comp. L. § 750.81d under current case law.
Since King (2008), the Michigan court of appeals has clarified that
§ 750.81d does not reach mere speech opposing police conduct: “state
actors cannot under this statute arrest and convict persons for only
utilizing constitutionally protected words in opposition to the actions of,
for example, a police officer.” People v. Morris, 314 Mich. App. 399, 411
(2016); id. at n.6 (“a ‘knowing failure to comply with a lawful command’
requires some physical refusal to comply with a command, as opposed to
a mere verbal statement of disagreement”); People v. White, No. 362136,
2023 Mich. App. LEXIS 8752, at *8-9 (Ct. App. Nov. 30, 2023) (“the
listed ways in which a defendant may resist or obstruct a person all
have the common element of physical interference and are, therefore,
not overbroad and do not only encompass constitutionally protected

55 Cf. Sessions v. Dimaya, 584 U.S. 148, 161 (2018).
56 See, e.g., Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003) (noting that

“the First Amendment protects even profanity-laden speech directed at police
officers” and that “[p]olice officers reasonably may be expected to exercise a higher
degree of restraint than the average citizen”).
67

speech”). Physically obstructive conduct is still unprotected. For
example, the Michigan court of appeals reversed a trial court’s decision
to quash an information based on a violation of § 750.81d where the
defendant had verbally criticized the police while also physically
interfering with their duties. See People v. Miskovich, No. 325727, 2016
Mich. App. LEXIS 1073 (Ct. App. May 26, 2016). There, the officer
“testified that defendant was ‘right in [his] face, yelling,’” and therefore
his conduct “could reasonably be viewed as physically obstructive in
nature.” Id. at *5. Therefore, it was at least plausible that the
defendant could be arrested and prosecuted for his conduct. “Had [the]
defendant merely shouted his profanities towards Officer Williams from
a reasonable distance,” the court noted, “a different conclusion might be
warranted. Id. at *8.
That line-drawing suggests that the Gradys, shouting from a
distance, probably could not have been able to violate the statute via
their speech at all. See Miskovich, 2016 Mich. App. LEXIS 1073, at *10
(comparing cases where plaintiffs merely shouted at police officers
versus the situation presented in that case, where plaintiff stood
“imposingly [] next to” the officer); Houston v. Hill, 482 U.S. 451, 462

68

(1987) (considering overbreadth of a statute that prohibited “speech
that ‘in any manner . . . interrupt[s]’ an officer” and holding that “[t]he
Constitution does not allow such speech to be made a crime.”); Jordan v.
Adams Cty. Sheriff’s Office, 73 F.4th 1162, 1169 (10th Cir. 2023) (“the
First Amendment does not protect only quiet and respectful behavior
towards police; it protects loud criticism that may annoy or distract the
officer”); but see id. (“if the act of criticizing itself is so loud that an
officer is prevented from executing his or her duties, then the officer
may restrict the speech based on this physical act, which does not rely
on the content of the speech.”).
Here, there is no dispute that the Gradys never advanced past
their position at the corner of the property. They never stood anywhere
near an officer and there is no plausible argument that anything other
than Shatina Gradys’ speech “physically” interfered with police that
night, at least prior to their arrests. Plaintiffs only shouted their
criticism from a distance, and clear lines can be drawn between this
case and those where speakers get too close to police in performance of
their duties.

69

The point is this: accepting that Shatina Grady’s same exact
speech, made from the same spot in a slightly lower tone of voice, would
plainly not have fallen within a permissible application of the statute,
could just the volume or frequency of her speech create probable cause
to think that her speech was “physically” disruptive? Other than the
Defendants’ short mention of this basis for probable cause, the parties
do not spend much time on this point, and so the court will refrain from
drawing any firm conclusions about the reach of the statute here.
Suffice it to say that, even assuming that mere speech could at some
point become physically obstructive, it would be arguable whether
probable cause could have existed to believe that Shatina Grady’s
speech reached the level of physical obstruction in this case.
The above discussion makes very clear, however, that probable
cause could not have existed under this theory for Daniel Grady,
because there is no serious argument that any of the few statements he
did make physically obstructed police in their duties, and like Shatina
Grady, his filming from a distance of 20-30 feet could not plausibly pose
a physical interference to the officers. A different basis is needed to
account for his arrest, and it’s on that basis that Defendants primarily

70

argue that probable cause existed for both arrests. See ECF No. 69,
PageID.1645 (Defendants’ motion).
2.

Failure to comply with a lawful order
without reference to speech

The second question, whether the Gradys’ failure to back up in
response to officers’ orders gave rise to probable cause under the
statute, is also made difficult by the fact that they were engaged in
speech. See Jordan v. Adams Cty. Sheriff's Office, 73 F.4th 1162, 1169
(10th Cir. 2023) (“[S]ince the First Amendment protects the right to
criticize police, then a fortiori it protects the right to remain in the area
to be able to criticize the observable police conduct.”) (emphasis in
original). Under Mich. Comp. L. § 750.81d, it is a felony to knowingly
fail to comply with a lawful command. No jury could conclude that the
Gradys did not comply with the officers’ orders to back up; they didn’t.
See supra notes 30, 31 and accompanying text. The issue comes down
only to whether the police had the lawful authority to order the Gradys
to “back up” from an active crime scene, when they already stood off the
property, 20-30 feet away, on a public sidewalk, and when they were

71

also engaging in First Amendment activity by filming police. 57 At
times, both the Plaintiffs and Defendants have put this issue in terms
of establishing a “perimeter” around the house and whether the Gradys
violated that perimeter. See ECF No. 69, PageID.1645; ECF No. 75,
PageID.4104. The parties disagree whether the officers could force
people to move outside of that perimeter, whether a perimeter was ever
established, what precisely establishes a perimeter, and if a perimeter
is not clearly established in a given area, what authority the police have
in that space. See id.; supra notes 13-18 and accompanying text.
Few cases clearly lay out police authority to secure a perimeter,
and Defendants do not point the court to any statutory authority. But
cases that do mention the issue appear to assume that police have that
power when they have legitimate concerns such as safety or a
reasonable need to allow police to complete their investigation. See
Wilkerson v. Warner, 545 F. App’x 413, 428 (6th Cir. 2013) (“Officer
Warner had probable cause to arrest Wilkerson based on a reasonable
belief that she acted in violation of Mich. Comp. L. § 750.81d(1) due to

57 See Section B.ii(a) (defining “protected conduct under the First

Amendment).

72

her failure to heed his commands intended to secure the scene for the
EMS personnel.”); People v. Corr, 287 Mich. App. 499, 505 (2010)
(police’s lawful duties in the course of an investigation include
“maintaining the peace and controlling the scene”); People v. Lacey, No.
317964, 2015 Mich. App. LEXIS 491, at *3 (Ct. App. Mar. 10, 2015)
(noting that “Detroit police officers established a perimeter”); see also
Baker v. City of McKinney, 220 L.Ed.2d 240, 241 (U.S. 2024)
(“police arrived soon after and set up a perimeter around Baker’s
home”) (Texas) (statement of Sotomayor, J., joined by Gorsuch, J.,
respecting denial of certiorari); Commonwealth v. Gray, 465 Mass. 330,
344 (2013) (Massachusetts) (“police have authority to secure a dwelling
from the outside”); Woodward v. Gray, 241 Ga. App. 847, 850 (2000)
(Georgia), disapproved on other grounds in Stryker v. State, 297 Ga.
App. 493, 495 n.1 (2009) (“Police can create a reasonable crime scene
perimeter, put up a crime scene tape to avoid destruction or tampering
with evidence, or exclude the public from a reasonable physical zone of
an arrest within which there is a risk of physical contact between the
officer, suspect, and public or a passing of weapons or evidence.
However, a command to clear the general area entirely beyond the zone

73

of police operations constitutes an overly broad and unreasonable
demand that exceeds reasonable law enforcement procedure and
needs.”). These cases all suggest that police were able to enforce a
reasonable perimeter around the house when they were attempting to
apprehend a shooting suspect.
However, where their stance at the edge of the perimeter was
accompanied by First Amendment activity, it is incomplete to stop the
analysis there. See Jordan, 73 F.4th at 1169.
3.

How an otherwise lawful order may be
rendered unlawful for purposes of the
resisting/obstructing statute by the First
Amendment

The Gradys have consistently argued that the orders they were
given were unlawful 58 and the Defendants have argued that the orders
were lawful under the First Amendment as well as under the Fourth
Amendment. See ECF No. 69, PageID.1647. This case illustrates two
potential analytical snags in “failure to comply” cases under
resisting/obstructing statutes. The Gradys’ Fourth Amendment and

58 See, e.g., ECF No. 75, PageID.4098.

74

First Amendment claims are intertwined in a way that makes the
“lawfulness” of the order to back up difficult to parse. This is because,
although an order to “back up” from a police perimeter may generally be
a lawful one, that generality does not preclude the possibility that the
order was nonetheless unlawful in this instance under the First
Amendment (for example, if the order and their arrests were motivated
by a desire to punish their First Amendment activity as Plaintiffs have
alleged). See Nieves v. Bartlett, 587 U.S. 391, 414 (2019) (Gorsuch, J.,
concurring in part and dissenting in part) (“Here’s a way to test the
point[.] Everyone accepts that a detention based on race, even one
otherwise authorized by law, violates the Fourteenth Amendment’s
Equal Protection Clause.”).
Here are the snags: first, assume that the Defendant officers did
in fact act to punish the Gradys’ First Amendment activity. If their
order was therefore unconstitutional, and accepting that the officers
subjectively knew that they were taking unlawful action based on the
Gradys’ First Amendment activity, did the officers still have “objective”
probable cause to believe that the Gradys failed to comply with a lawful
order? Second: take motive out of the equation – assume that the order

75

“objectively” violates the First Amendment by restricting too much
speech regardless of its message and regardless of the officers’ motive.
See Swagler v. Sheridan, 837 F. Supp. 2d 509 (D. Md. 2011). Does
unlawfulness under either mode of First Amendment analysis matter
for purposes of the Fourth Amendment’s probable cause analysis when
probable cause depends on the lawfulness of the order given?
The first snag is easier: no relevant case considers subjective
motive, according with the understanding of probable cause as a
plausible legal basis to arrest without reference to actual (and possibly
unlawful) subjective First Amendment motive. See Nieves, 587 U.S. at
414 (Gorsuch, J., concurring in part and dissenting in part) (The point
of evaluating motive in a First Amendment retaliatory arrest claim
“isn’t to guard against officers who lack lawful authority to make an
arrest. Rather, it’s to guard against officers who abuse their authority
by making an otherwise lawful arrest for an unconstitutional reason.”)
(emphasis in original). “Courts evaluate the existence of probable cause
from the perspective of a reasonable and objective person in the position
of the seizing official.” Fisher v. Harden, 398 F.3d 837, 843 (6th Cir.
2005).

76

The second question is harder, though most courts agree that
some form of lawfulness analysis is relevant. One possible
interpretation: an order is not rendered unlawful by the First
Amendment if the order can be fairly justified in reference to conduct
rather than speech. In Ordonez v. Gonzalez, a Texas case, a plaintiff
was similarly arrested while filming and criticizing police for interfering
with police duties by failing to comply with an officer’s instruction to
back up. See No. EP-23-CV-99-KC, 2024 U.S. Dist. LEXIS 52632, at
*20-21 (W.D. Tex. Mar. 25, 2024). When police spoke with the
plaintiff’s (Ordonez’s) minor relative, Ordonez filmed the interaction
with her phone. An officer told Ordonez that she could continue filming
the police if she backed up, but there was no evidence that she complied
with his instruction. The court concluded that the officer gave that
instruction “within the scope of the official duty [he] was performing,”
and the “instruction concerned [] moving [back] rather than the content
of [Ordonez’s] speech.” Accordingly, “[a] reasonable officer could have
concluded that [Ordonez’s] conduct constituted an interference that

77

went beyond speech.” 59 Therefore, probable cause existed. Note the
distinction: the analysis does not depend on definitively concluding that
the restriction is one based on conduct and not speech or finding that
there was no First Amendment problem. On a probable cause analysis,
if conduct alone can fairly explain the order and the effect on speech is
incidental, then that order would not offend the First Amendment. See
United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678-79
(1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the
same course of conduct, a sufficiently important governmental interest
in regulating the nonspeech element can justify incidental limitations
on First Amendment freedoms[.]”); see also Arcara v. Cloud Books, Inc.,
478 U.S. 697, 706-07 (1986) (“[W]e have not traditionally subjected
every criminal and civil sanction imposed through legal process to ‘least
restrictive means’ scrutiny simply because each particular remedy will
have some effect on the First Amendment activities of those subject to
sanction. Rather, we have subjected such restrictions to scrutiny only
where it was conduct with a significant expressive element that drew

59 The phrasing reflects the test used when evaluating the speech/conduct

distinction for interfering with lawful duties in Texas. See Westfall v. Luna, 903
F.3d 534, 544 (5th Cir. 2018).
78

the legal remedy in the first place, as in O’Brien, or where a statute
based on a nonexpressive activity has the inevitable effect of singling
out those engaged in expressive activity, as in Minneapolis Star”). 60
Consider the example of People v. Connolly, Nos. 364104, 364105,
364106, 364107, 2024 Mich. App. LEXIS 4262, at *14 (Ct. App. May 30,
2024). In that case, anti-abortion protestors were arrested in a women’s
health clinic for their nonviolent failure to comply with police orders to
disperse and leave the clinic (for trespassing on private property), and
then to stand up and put their hands behind their backs. That court
held that the “physical refusal to comply with a command” (and not just
their vocal disagreement with that command) “undisputedly” violates
§ 750.81d. Id. at *14. There, the protestors’ speech was separable from
their failure to disperse, and their arrests could be justified without
reference to their speech. 61
60 O’Brien and Arcara probably illustrate different doctrinal approaches (the

former applying a low-level scrutiny, the latter applying no scrutiny at all). See,
e.g., Dan T. Coenen, Free Speech and Generally Applicable Laws: A New Doctrinal
Synthesis, 103 Iowa L. Rev. 435, 442 (2018). On a probable cause analysis,
however, that doesn’t seem to be a crucial distinction – the nonspeech conduct is
sufficiently explanatory to establish probable cause regardless of what level (if any)
of scrutiny would applied to assess the order’s ultimate constitutionality.
61 The protestors do not appear to have raised a First Amendment

speech/retaliation defense in their criminal case, and so the court is left to speculate

79

A second interpretation works a little differently; assuming that
the order to “back up” to people filming police with their phones facially
restricted speech and not just conduct, the “lawfulness” of that order
could be scrutinized more closely under the First Amendment, but still
only so far as that analysis can be made without reference to motive.
See, e.g., Hulbert v. Pope, 535 F. Supp. 3d 431 (D. Md. 2021). In
Hulbert, a gun rights group held a demonstration near the Governor’s
Mansion and were ordered to move off the sidewalk to the adjacent
public lawn. When they refused, officers arrested the leaders of the
group. Kevin Hulbert refused to move, filmed the arrests, and was then
arrested too. The district court held that as to Kevin, “even though it is
clear that the restriction [to move off the sidewalk] was not contentbased or intended to silence Plaintiffs’ viewpoints[,]” there were “factual
disputes requiring jury resolution as to whether a legitimate
government interest was served by the police action[,]” and the order
could therefore be “unconstitutional [on First Amendment grounds.]”
See id. at 446, 449, 451. If that were the case, “the failure to obey a

as to the result. Still, the probable cause established by their trespass onto private
property would seem to be dispositive under Nieves.
80

lawful order statute cannot serve as the basis for probable cause.” Id.
at 451 (quoting citation omitted). That analysis, unlike Ordonez,
doesn’t entirely set aside First Amendment scrutiny; it incorporates
First Amendment lawfulness as far as it can without reference to
subjective motive (whether a “significant government interest” was
served by a police action does not necessarily depend on whether the
action was intended to be hostile to a particular content or viewpoint).
See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The
Fourth Circuit reversed, but on grounds of qualified immunity; “a
reasonable officer in Pope’s shoes could have believed that his orders for
the Hulberts to back up off the sidewalk were lawful time, place, or
manner restrictions on their speech. It was therefore reasonable for
Pope to believe he had probable cause to arrest them for disobeying
these orders . . . .” Hulbert v. Pope, 70 F.4th 726, 738 (4th Cir. 2023). A
similar approach is illustrated in Swagler v. Sheridan, 837 F. Supp. 2d
509, 531 (D. Md. 2011). In that case, an “order to leave Harford County
was clearly unconstitutional” on First Amendment grounds because
“the breadth of the [] order—‘leave Harford County’—[] can satisfy
neither intermediate nor strict scrutiny as it left absolutely no

81

alternative methods for the Plaintiffs to exercise their First Amendment
rights.” Id. at 526, 531. “As such, the failure to obey a lawful order
statute cannot serve as the basis for probable cause.” Id. at 531; see
also Wright v. Georgia, 373 U.S. 284, 291-92 (1963) (“[O]ne cannot be
punished for failing to obey the command of an officer if that command
is itself violative of the Constitution.”).
These two interpretations aren’t irreconcilable. Ordonez, too,
recognized that First Amendment unlawfulness is relevant when a
command is obviously unconstitutional by completely banning speech.
See Ordonez, 2024 U.S. Dist. LEXIS 52632, at *19-20 (when the officer’s
first order was to stop filming altogether, noting that “such a complete
prohibition on filming would be beyond the scope of Gonzalez’s
authority, and therefore Ordonez’s failure to comply did not furnish
probable cause to arrest her for Interference with Public Duties”). A
consistent throughline is that an order which plainly fails any First
Amendment scrutiny would not provide probable cause to arrest a
speaker for failure to comply with that order. E.g., Iacobucci v. Boulter,
193 F.3d 14, 25 (1st Cir. 1999) (filming a public meeting did not violate
any law and was protected First Amendment activity, so police “lacked

82

the authority to stop them” and his failure to comply with commands to
stop did not create probable cause). In contrast, when an order
debatably violates the First Amendment, like an ad hoc order to simply
move to another nearby spot, the question of whether that triggers
scrutiny or scrutinizing that order by evaluating “how many feet is too
far” leads most courts to conclude that qualified immunity would
protect the decision regardless of the answer. See Hulbert v. Pope, 70
F.4th 726, 738 (4th Cir. 2023) (resolving arguable probable cause for the
order’s lawfulness as to time, place, and manner on qualified immunity
grounds); DeCastro v. Las Vegas Metro. Police Dep’t, No. 2:23-cv-00580,
2024 U.S. Dist. LEXIS 164883, at *32 (D. Nev. Sep. 12, 2024) (collecting
cases); cf. Jordan v. Adams Cty. Sheriff's Office, 73 F.4th 1162, 1169
(10th Cir. 2023) (the First Amendment must “protect[] the right to
remain in the area to be able to criticize the observable police
conduct.”).
The question in this case becomes how you frame the order to back
up and move to another spot to keep filming: whether a) to apply forum
analysis and intermediate scrutiny because the individuals in question
were engaged in First Amendment activity in a public forum, and an

83

ad-hoc order to back up facially restricts their speech, or b) whether to
decline to apply First Amendment scrutiny in the Fourth Amendment
context because an objective officer would view any restriction on
speech incidental to a generally applicable conduct-based order that
could be given regardless of whether an individual was “speaking” and
regardless of whether the speaker was standing in a public forum or
not. In this case, the latter framework is a better fit. Under that view,
an order to “stop filming” or to “leave” the area would facially restrict
speech (or would effectively operate to prevent any possible speech), and
when directed at First Amendment activity, would plainly not have
been lawful to any reasonable officer; in contrast, an order that says
“you can videotape, but back up” is not plainly a First Amendment
violation. Here, there is no dispute that police had essentially secured
the house, stationed officers around it, stationed an officer across the
street, and that their vehicles in the street barred street access to other
vehicles that might come by. Plaintiffs make much of the fact that
there was no police tape put up, see, e.g., ECF No. 75, PageID.4090, but
in the court’s view, that alone is not sufficient to create a material
dispute that police created a rudimentary perimeter around the house.

84

How far police can extend a perimeter may be unclear as a matter of
law, and factually, where precisely that perimeter might have been at
the corner of 2714 Peachcrest’s lawn is unclear. Nonetheless, when the
Gradys walked right to the edge of the property that police had
surrounded with weapons out, stood in front of the patrol car parked in
the street, and officers instructed them to back up and they did not, a
police officer at the scene had enough information at their disposal to
conclude that the Gradys had likely disobeyed a lawful order by
entering the edge of their perimeter and refusing an order to back up
outside of it. See Cheolas v. City of Harper Woods, 467 F. App’x 374,
381 (6th Cir. 2012) (“Even if the Michigan courts would ultimately
decide that this was too passive to support an actual conviction, it
nonetheless was close enough to the line to satisfy the probable cause
inquiry.”).
Because probable cause existed to arrest the Gradys for their
failure to comply with a lawful order, there was no violation of their
Fourth Amendment right to be free from unlawful arrest, and
Defendants are entitled to summary judgment on Plaintiffs’
unreasonable seizure claim.

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ii.

First Amendment Retaliation (Count I)

Although probable cause existed under the Fourth Amendment,
the court turns to Plaintiffs’ retaliation claim and asks whether their
arrests nonetheless violated the First Amendment. To prevail on a
First Amendment retaliation claim, Plaintiff must show that (1) the
First Amendment protected their conduct; (2) an adverse action was
taken against them that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two—that is, the adverse action
was motivated at least in part by their protected conduct. Bell v.
Johnson, 308 F.3d 594, 602 (6th Cir. 2002) (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999)). The Gradys were arrested
and jailed, and thus satisfy the second prong. The first and third
prongs merit more attention.
a)

Protected Conduct

In the first step of the analysis, Plaintiffs must plead and prove
that the First Amendment guaranteed their right to engage in the
conduct that caused her arrest. Frenchko v. Monroe, 672 F. Supp. 3d
421, 454 (N.D. Ohio 2024).

86

First, there is a constitutional right to film encounters with the
police, at least while in public. See Glik v. Cunniffe, 655 F.3d 78, 84-86
(1st Cir. 2011) (finding a First Amendment right to film police officers
performing their duties in public spaces); Gericke v. Begin, 753 F.3d 1,
7-10 (1st Cir. 2014) (same); Fields v. City of Philadelphia, 862 F.3d 353,
359 (3rd Cir. 2017) (same); Turner v. Lieutenant Driver, 848 F.3d 678,
688-90 (5th Cir. 2017) (adopting Glik); ACLU v. Alvarez, 679 F.3d 583,
595-96 (7th Cir. 2012) (allowing the audio recording of the police in
public spaces); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000) (permitting the filming of police conduct subject to reasonable
time place and manner restrictions); Crawford v. Geiger, 131 F. Supp.
3d 703, 714-15 (N.D. Ohio 2015) (concluding that “there is a First
Amendment right to openly film police officers carrying out their duties
in public”), rev’d on other grounds, 656 F. App’x 190 (6th Cir. 2016).
And second, it “is well-settled that the freedom to criticize public
officials and expose their wrongdoing is a fundamental First
Amendment value, indeed, [c]riticism of the government is at the very
center of the constitutionally protected area of free discussion.”
Wilkerson v. Warner, 545 F. App’x 413, 424 (6th Cir. 2013) (quoting

87

Arnett v. Myers, 281 F.3d 552, 560 (6th Cir. 2002)) (citation and quotes
omitted). “There can be no doubt that the freedom to express
disagreement with state action, without fear of reprisal based on the
expression, is unequivocally among the protections provided by the
First Amendment.” McCurdy v. Montgomery Cty., 240 F.3d 512, 520
(6th Cir. 2001).
Further, Shatina and Daniel Grady’s First Amendment activity
occurred on a public sidewalk. Public streets and sidewalks are “are
quintessential public forums for free speech.” Hill v. Colorado, 530 U.S.
703, 715 (2000). But “even in a public forum, the government may
impose a content-neutral time, place, or manner restriction if it is
‘narrowly tailored to serve a significant governmental interest’ and
‘leave[s] open ample alternative channels’ of communication.” Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). Courts have applied
these familiar principles to instances of spectators filming or criticizing
police. See Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (the right to
film police “may be subject to reasonable time, place, and
manner restrictions”); Enoch v. Hamilton Cty. Sheriff's Office, No. 223946, 2024 U.S. App. LEXIS 19255, at *12 (6th Cir. July 31, 2024)

88

(where plaintiff was recording in a court’s hallways and arrested,
holding that “[i]n a nonpublic forum like a courthouse, ‘the First
Amendment rights of everyone . . . are at their constitutional nadir.’”)
(quoting citation omitted); Greene v. Barber, 310 F.3d 889, 894 (6th Cir.
2002) (“Did Mr. Greene have a constitutionally protected right” to insult
the defendant police officer? “The answer, we suggest, depends on the
time, place, and manner in which Mr. Greene so expressed himself.”).
The problem is less whether these considerations apply and more how
to apply them to ad hoc restrictions on speech; for example, asking
“[h]ow close is ‘too close’ such that the filming,” or perhaps other speech,
“however well-intentioned, becomes hazardous, diverting officers’
attention and impeding their ability to perform their duties in fastmoving, highly charged situations?” See Buehler v. Dear, 27 F.4th 969,
976 (5th Cir. 2022).
Here, public safety and security “are significant government
interests.” Reform Am. v. City of Detroit, 542 F. Supp. 3d 628, 639 (E.D.
Mich. 2021). There remain the questions of whether the order was
narrowly tailored or whether the order left open ample alternative
means of expression. Both parties have addressed these points. See

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ECF No. 69, PageID.1647; ECF No. 75, PageID.4099. Speakers are “not
entitled to [their] best means of communication.” Saieg v. City of
Dearborn, 641 F.3d 727, 740 (6th Cir. 2011) (citation omitted); see also
Hulbert v. Pope, 535 F. Supp. 3d 431, 444 (D. Md. 2021) (“Regulations
that merely limit an individual’s activity to a portion of a forum usually
are deemed to leave open ample alternative channels.”) (collecting
cases). But “[a]n alternative is not ample if the speaker is not
permitted to reach the intended audience[,]” Saig, 641 F.3d at 740.
(citation omitted).
Here, police told the Gradys to “back up” (“you can videotape, but
back up”) (“next house down, you’ll be fine”), when they already stood
about 20-30 feet away at the corner of the lot. 62 It’s not clear whether
making Plaintiffs film with their phones from the “next house down”
would in effect prevent their filming at that distance, or would unduly
restrict their critical speech. Plaintiffs point out that “Officers did not
instruct Plaintiffs to go across the street where at least one other person
was located[,]” though surely that doesn’t foreclose the fact they could
62 No testimony specifically addresses the exact distance; the court estimates

based on the video, while noting that reasonable minds could reach a different
number. The point is that the Gradys posed no physical threat of interference by
their nearness.
90

have done so, and other people were filming from that location. See
ECF No. 75, PageID.4099. It is also not totally clear why safety
concerns would require the Gradys to move to the “next house down”
but not require any other spectators to move (who were standing close
to the armed officers across the street). See, e.g., Buehler v. Dear, 27
F.4th 969, 977 (5th Cir. 2022) (police could lawfully order filming
activist to stand at arms-length when in a crowded street) (emphasis
added); Perkins v. Hart, No. 22-30456, 2023 U.S. App. LEXIS 31734, at
*19, 22 (5th Cir. Nov. 30, 2023) (While plaintiff’s son filmed her arrest
in her driveway from feet away and shouted at officers and “was clearly
close to the arrest scene—the perimeter of which was being secured by
[police]—[he] was not a hazard, was not too close, and did not impede
the Deputies’ ability to perform their duties.”) (emphasis added).
But those questions are ultimately not necessary to answer on this
motion. Plaintiffs’ retaliation claim here turns on the causation
element – whether the protected conduct was a motivating factor (but
for cause) of the arrest. That element does not strictly depend on the
validity of this order as a reasonable time, place, or manner restriction
(though it would likely be relevant evidence). That is, even if a jury

91

found that the order was a reasonable time, place, or manner
restriction, they would still need to find that the arrests were motivated
by Plaintiffs’ speech in order for Plaintiffs to prevail on their retaliation
claim. And even if the jury found that the order was not a reasonable
time, place, or manner restriction, 63 they would still need to find the
same (though presumably, if an order was not in fact a reasonable
restriction on speech, one could infer it may well have been made to
restrict speech). For this reason, both parties’ arguments about the
validity of the order as a time, place, and manner restriction are better
considered factual questions for the jury to evaluate the strength of the
content- and speech- neutral explanations for the Gradys’ arrests. 64
b)

Causation

63 A different question from whether an objective police officer could

reasonably believe the order was lawful as time, place, or manner restriction. See
Hulbert v. Pope, 70 F.4th 726, 729 (4th Cir. 2023).
64 To the extent that an unreasonable time, place, or manner restriction

might establish an independent First Amendment violation (see, e.g., Brandt v. City
of Westminster, 300 F. Supp. 3d 1259, 1282 (D. Colo. 2018) (treating a retaliatory
arrest claim separately from a “free speech” claim), Hulbert v. Pope, 535 F. Supp. 3d
431, 442 (D. Md. 2021) (alleging a violation of the right to film separately from their
retaliatory arrest claim)), the only First Amendment claim here is a retaliatory
arrest. See First Amended Complaint, ECF No. 46, PageID.457.

92

Although the type of activity the Gradys were engaged in is of a
sort that may be protected by the First Amendment, “the government’s
reason” for acting is “what counts[.]” Heffernan v. City of Paterson, 578
U.S. 266, 273 (2016). In this context, if the police acted only by
enforcing a valid, content-neutral time, place, or manner rule, then
their speech could be restricted consistent with the First Amendment.
But an otherwise valid time, place, or manner restriction in a public
forum must still be content and viewpoint neutral, and must be
enforced as such to avoid closer scrutiny. “The freedom of individuals
verbally to oppose or challenge police action without thereby risking
arrest is one of the principal characteristics by which we distinguish a
free nation from a police state.” City of Houston v. Hill, 482 U.S. 451,
462–63 (1987).
The causation step of a retaliatory arrest claim asks whether the
protected conduct was a motivating factor in the arrest. “A ‘motivating
factor’ is essentially [a] but-for cause . . . .” Leonard v. Robinson, 477
F.3d 347, 355 (6th Cir. 2007). Although courts long considered it the
case that “‘claims involving proof of a defendant’s intent seldom lend
themselves to summary disposition’ and ‘circumstantial evidence may

93

provide sufficient evidence of retaliatory intent to survive summary
judgment[,]’” see, e.g., Kennedy v. City of Villa Hills, 635 F.3d 210, 218
(6th Cir. 2011) (citation omitted), a retaliatory arrest claim now
generally fails when there is a showing of probable cause. Nieves v.
Bartlett, 587 U.S. 391, 404 (2019). According to the Supreme Court,
“because probable cause speaks to the objective reasonableness of an
arrest, its absence will—as in retaliatory prosecution cases—generally
provide weighty evidence that the officer’s animus caused the arrest,
whereas the presence of probable cause will suggest the opposite.” Id.
at 402 (internal citation omitted).
However, Nieves’s presumption admits an exception: the existence
of probable cause does not defeat a plaintiff ’s claim if he produces
“objective evidence that he was arrested when otherwise similarly
situated individuals not engaged in the same sort of protected speech
had not been.” Id. at 407. 65 The Court very recently addressed the

65 For example, “[i]f an individual who has been vocally complaining about

police conduct is arrested for jaywalking at such an intersection, it would seem
insufficiently protective of First Amendment rights to dismiss the individual’s
retaliatory arrest claim on the ground that there was undoubted probable cause for
the arrest. In such a case, [] probable cause does little to prove or disprove the
causal connection between animus and injury, . . . .” Nieves v. Bartlett, 587 U.S.
391, 407 (2019). The example of a misdemeanor is not decisive; the exception

94

scope of this exception and cautioned against too narrow an application;
it is designed to account for “circumstances where officers have probable
cause to make arrests, but typically exercise their discretion not to do
so.” Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (citing 587 U. S. at
406). To fall within the exception, “a plaintiff must produce evidence to
prove that his arrest occurred in such circumstances. The only express
limit we placed on the sort of evidence a plaintiff may present for that
purpose is that it must be objective in order to avoid ‘the significant
problems that would arise from reviewing police conduct under a purely
subjective standard.’” Gonzalez, 602 U.S. at 658 (citing Nieves, 587 U.S.
at 407) (admonishing courts that “the demand for virtually identical
and identifiable comparators goes too far”).
Defendants assert that Plaintiffs cannot qualify for the Nieves
exception because “the video evidence establishes that there was no
similarly situated individual at the scene.” ECF No. 69, PageID.1646.
To be clear, the video evidence plainly establishes that there were other
spectators at the scene, also filming the encounter, and (as Nieves

“applies to all offenses, including serious felonies[.]” Nieves, 587 U.S. at 411 (2019)
(Thomas, J., concurring).
95

requires) were otherwise not engaged “in the same sort of protected
speech” that Shatina Grady (and occasionally Daniel Grady) were
engaged in (i.e. shouting at or criticizing police action, at least until the
Gradys were arrested). See, e.g., Cratsenburg Bodycam at 46:20.
Defendants argue, however, these people do not count as similarly
situated individuals because the proper comparator would be people
who also stood too close and “interfered with the investigation and
refused commands to back up.” ECF No. 69, PageID.1646.
In the court’s view, that is too narrow a scope to view potential
comparators in this case in light of Gonzalez. Differentiating the
spectators in this case by drawing careful lines about precisely where
they were standing in relation to the house is surely a search for
“virtually identical” comparators, which the Court has instructed is not
necessary or desirable. Gonzalez, 602 U.S. at 658. These other people
also stood near police who were on active duty and were part of this
same investigation/attempt to safely gain entry to the house (and these
other spectators were even nearer to individual officers than the
Gradys). See ECF No. 69-5, PageID.1996-97; Cratsenburg Bodycam at
46:20; ECF No. 69-6, PageID.2281 (another officer had to be stationed

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across the street because there “was people out and in the same area
that they were at”). These spectators also filmed the encounter from a
distance, and were not within the property itself. That is sufficient to
establish their similarity at this stage.66

66 Further evidencing that point, this case is coincidentally not far off from an

example proposed by Justice Sotomayor in proposing how Nieves might operate in
practice. Her example:
[S]uppose police respond to reports of a man prowling a
front porch. The man says that he is a locked-out
homeowner; the police want ID. The man alleges
profiling; the officers insist they are just doing their jobs.
Tempers flare. A passerby, stepping into a next-door
neighbor’s yard for a clearer view of the confrontation,
pulls out a cell phone camera and begins streaming video
of the encounter to her social media followers. One of the
officers notices and orders the passerby to stop recording.
When the passerby persists, the officer places the
passerby under arrest for trespassing. Will this citizen
journalist have an opportunity to prove that the arrest
violated her First Amendment rights? Under the
majority’s test, the answer seems to turn on how
many other curious bystanders she can identify
who were not arrested in a situation like hers. If
she was one of a crowd to enter the neighbor’s yard that
night, she can sue using her readily available comparator
neighbors. But if she was keeping a lonely vigil, she is
out of luck (unless she can find some other pool of
comparable individuals).”

Nieves, 587 U.S. at 430 (Sotomayor, J., dissenting) (emphasis added).
Here, police similarly were investigating a neighboring house which attracted
attention, and the Gradys and a small crowd of other people filmed from nearby
(though in different spots). Under Nieves and Gonzalez, the other bystanders in this
case are relevant comparators.

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Defendants’ argument that what differentiates the Gradys is that
they were told to back up is a question for the jury (and begs the
question). 67 At the level of granularity that Defendants propose, they
essentially just are rewording the causation question: could a
reasonable jury credit the content-neutral explanation for their arrests
and conclude that what differentiates the Gradys from other spectators
at the scene is their location and mere failure to move back? Of course
they could. Officers first warned the Gradys to “back up” before either
of the Gradys ever said anything at all (though, viewed in the light most
favorable to them at this stage, after they had started to film),
suggesting that their critical speech had nothing to do with their
arrests. Despite the many claims presented in this case, this is not a
difficult thread to follow.
But could a jury also conclude that what differentiates the Gradys
from other spectators, and what caused their arrests, is their vocal
criticism of the police action? They could. A permissible, plausible, and
reasonable inference that a jury could draw is that the Gradys were not

67 Justice Sotomayor’s example also illustrates that the comparators need not

have received the same order to be similarly situated. See note 66.
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arrested for their failure to back up (when they already stood at a
distance) but for their alleged “interference” with the investigation by
shouting at police that they needed a warrant, and the resulting
frustration to police when the people inside the house subsequently
denied police entry without a warrant. That motivation would violate
the First Amendment. Plaintiffs have provided objective proof that
there were sufficiently similarly-situated individuals at the scene; it is a
question for a jury to decide which of the above explanations best
accounts for their differential treatment. DeCastro v. Las Vegas Metro.
Police Dep’t, No. 2:23-cv-00580-APG-EJY, 2024 U.S. Dist. LEXIS
164883, at *53 (D. Nev. Sep. 12, 2024) (“While a jury could reach the []
conclusion that none of those individuals was interfering
with police business the same way or under the same circumstances
DeCastro was, that is a matter for the fact finder.”).
Having concluded that Plaintiffs have made their required
showing at the summary judgment stage, the court notes the other
evidence that would be in front of a jury to evaluate that question. See
Nieves, 587 U.S. at 407-08 (“After making the required showing, the
plaintiff’s claim may proceed in the same manner as claims where the

99

plaintiff has met the threshold showing of the absence of probable
cause.”); id. at 404 (in the absence of probable cause, “the Mt. Healthy
test governs: The plaintiff must show that the retaliation was a
substantial or motivating factor behind the [arrest], and, if that
showing is made, the defendant can prevail only by showing that the
[arrest] would have been initiated without respect to retaliation.”)
(quoting citations omitted). Evidence supporting Plaintiffs’ case is
available here: officers only proceeded to arrest the Gradys once the
occupants refused to let them in without a warrant, consistent with
what the Gradys were shouting. Cratsenburg said “she’s going”
(referring to Shatina Grady) when he decided to order their arrests.
Cratsenburg Bodycam at 45:40 (emphasis added). If the behavior at
issue was both of the Gradys’ failure to comply with the order to back
up, that statement doesn’t make much sense. When explaining why
they arrested the Gradys and no others, Pearson testified that “nobody
[else] came close to our perimeter and entered in and started yelling, so
they weren’t interfering with our investigation.” ECF No. 69-5,
PageID.2106 (emphasis added). Cratsenburg also focused on Shatina
Grady when explaining the reason to arrest; “Attention was being

100

diverted from the house to Ms. Grady El, and we needed to be focused
on the house and not outside interference.” ECF No. 69-6, PageID.2288
(emphasis added). That’s potentially a problem for the officers for a few
reasons: first, as the court noted above, if Shatina Grady’s speech was
not actually physically disruptive, then it could not have been a
violation of § 750.81d. See People v. Morris, 314 Mich. App. at 411
(“[S]tate actors cannot under this statute arrest and convict persons for
only utilizing constitutionally protected words in opposition to the
actions of, for example, a police officer.”). Second, even if that
interpretation is possible, a jury could choose not to credit the
explanation of her speech as interference, because no officer ever
indicated trouble hearing in any of their bodycam footage, and the jury
could see for themselves that Buffa and the occupants of the house
continuing to converse throughout the Gradys’ shouting without more
than a single momentary disruption. Lastly, both officers testified that
speech (“yelling,” “Ms. Grady-El”) was a reason for arresting both
Gradys, but again, Shatina Grady’s potentially disruptive speech
cannot serve as the basis for Daniel Grady’s arrest. Though Daniel did
yell comments at police a few times, no reasonable jury could find that

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those comments moved beyond the kind of speech that is firmly
protected under the First Amendment.
c)

Qualified Immunity

Officers are not entitled to qualified immunity if the constitutional
right they violated “was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In the context
of an arrest allegedly made absent probable cause, “[a]n officer is
entitled to qualified immunity if he reasonably believed that the arrest
was lawful, even if that belief was erroneous.” Wood v. Eubanks, 25
F.4th 414, 421 (6th Cir. 2022) (citing Barton v. Martin, 949 F.3d 938,
950 (6th Cir. 2020)). In the Sixth Circuit, it is clearly established that
filming police is protected by the First Amendment. Crawford v. Geiger,
131 F. Supp. 3d 703, 714-15 (N.D. Ohio 2015) (concluding that “there is
a First Amendment right to openly film police officers carrying out their
duties in public”), rev’d on other grounds, 656 F. App’x 190 (6th Cir.
2016). And criticism of police action is at the core of constitutionally
protected free expression. See Wilkerson v. Warner, 545 F. App’x 413,
424 (6th Cir. 2013); Arnett v. Myers, 281 F.3d 552, 560 (6th Cir. 2002).

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In this case, Defendants argue that they are entitled to qualified
immunity under Nieves because probable cause existed. However, that
plaintiffs must ultimately prove that officers acted with “subjective
animus” in the First Amendment context reduces the concern that they
will not know that their conduct violates the law. Nieves, 587 U.S. at
401. Nieves essentially creates an assumption for purposes of granting
qualified immunity at pretrial stages when a plaintiff has no objective
proof of improper motive, rather than changing any underlying
substantive law establishing a First Amendment violation – it is still
clearly established under Nieves that a retaliatory arrest made for the
purpose of punishing speech violates the First Amendment, even if
there was an “objective” (but pretextual) reason for the arrest, if police
normally do not exercise their discretion to arrest for that conduct.
Here, because Plaintiffs fall within the Nieves exception and there is
objective evidence of improper motive, Nieves’ default rule as to
qualified immunity does not apply. 68
68 Arguably, the Nieves framework simply does not work for a case like this,

where so much of the possible probable cause arose from potentially “disruptive”
and critical speech. In such cases, the Sixth Circuit has suggested, “the general rule
of requiring plaintiffs to prove the absence of probable cause should not apply”
because the “broad reach” of an obstructing statute interpreted to include speech

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Two more notes: the court has also explained why it is arguable
whether probable cause existed to think that Shatina Grady interfered
with police via her speech. That factual dispute also explains why
qualified immunity is not appropriate in this instance. A “reasonable
juror could conclude that no reasonable officer would perceive” Shatina
Grady as physically interfering with their investigation merely by
yelling from a distance. See Meadows v. City of Walker, 46 F.4th 416,
424 (6th Cir. 2022); People v. Morris, 314 Mich. App. 399 (2016). If the
officers nonetheless arrested her or ordered her arrest based on her
speech (as they testified), any reasonable officer so motivated should
have “immediately” recognized the clearly established unlawfulness of
arresting someone for the purpose of punishing their critical speech,
when officers generally do not arrest people standing at a distance
while only filming. See Nieves, 587 U.S. at 407; Blackwell v. Nocerini,
123 F.4th 479, 492 (6th Cir. 2024) (quoting District of Columbia v.
Wesby, 583 U.S. 48, 64 (2018) (citation omitted), Hartman v. Moore, 547

“gives the police cover to retaliate against all kinds of speech under the banner of
probable cause.” Novak v. City of Parma, 932 F.3d 421, 432 (6th Cir. 2019).
Because this case fits the Nieves exception, the court doesn’t need to fully address
that possibility. But to any extent that the exception may not perfectly fit this case,
that reasoning would explain why the case should nonetheless move forward on
these facts.
104

U.S. 250 (2006)); see also, e.g. Cain v. City of Detroit, No. 12-15582, 2016
U.S. Dist. LEXIS 156999, at *20 (E.D. Mich. Nov. 14, 2016) (where
there was an issue of fact of whether a vehicle impoundment was
reasonable, denying qualified immunity because “[a] reasonable officer
would have known that seizing a citizen’s vehicle and ticketing him in
response to his protestations against the officer’s behavior, and
demands for the officer’s identification, would violate his First
Amendment right to criticize police and be free from retaliation for
doing so”).
As to Daniel Grady, the protection of qualified immunity is also
not appropriate. The court has explained why a jury could find that he
was arrested not for his mere failure to comply with a content-neutral
restriction, but because police associated him with loud vocal criticism
from himself or Shatina Grady. 69 Police were aware that Daniel Grady
himself was making only a few critical comments, and no reasonable
jury could find that his speech was physically disruptive. Accepting (at

69 Whose speech actually might have motivated the arrest is unimportant

here, so long as that critical speech was the basis of his arrest; if so motivated the
action still violates the First Amendment. See Heffernan, 578 U.S. at 273 (First
Amendment violation even though plaintiff had not actually engaged in any
protected speech himself, because the government retaliated against his perceived
speech).
105

this stage) that his arrest could have been caused by retaliatory motive,
any reasonable officer subjectively entertaining that motive would have
been aware of the unlawfulness of that arrest.
Therefore, qualified immunity does not apply as to the Gradys’
First Amendment retaliation claim, and the motion for summary
judgment on Count I is DENIED.
iii.

Fourth Amendment (Excessive Force) (Count II)

The Fourth Amendment’s protection against unreasonable seizures
also prohibits law enforcement officers from using excessive force
against someone “in the course of an arrest, investigatory stop, or other
‘seizure[.]’” Graham v. Connor, 490 U.S. 386, 395 (1989). “Determining
whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of ‘the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing governmental
interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1,
8 (1985)). “To determine if an officer’s use of force violates the Fourth
Amendment, courts apply an objective reasonableness standard,
considering an officer’s actions ‘in light of the facts and circumstances

106

confronting them, without regard to their underlying intent or
motivation.’” Lunneen v. Village of Berrien Springs, Michigan, 2023 WL
6162876, at *4 (6th Cir. Sept. 21, 2023) (quoting Graham v. Connor, 490
U.S. at 396-97). As explained in Palma v. Johns, 27 F.4th 419, 428 (6th
Cir. 2022), when considering the “totality of the circumstances” the
Supreme Court has articulated three factors as a starting point: “(1) ‘the
severity of the crime at issue,’ (2) ‘whether the suspect poses an
immediate threat to the safety of the officers or others,’ and (3) ‘whether
he is actively resisting arrest or attempting to evade arrest by flight.’”
Id. (quoting Estate of Hill v. Miracle, 853 F.3d 306, 313 (6th Cir. 2017)
(quoting Graham, 490 U.S. at 396). This list is not, however,
exhaustive. Palma, 27 F.4th at 428-429 (citing Roell v. Hamilton Cnty.,
870 F.3d 471, 480 (6th Cir. 2017)); see also Zuress v. City of Newark,
OH, 815 F. App’x 1, 6 (6th Cir. 2020) (“The Graham factors are not
exhaustive.”). “The test is ‘reasonableness at the moment’ of the use of
force, as ‘judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Griffith v.
Coburn, 473 F.3d 650, 656 (6th Cir. 2007) (quoting Graham, 490 U.S. at
396). “The calculus of reasonableness must embody allowance for the

107

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.” Graham, 490 U.S. at 396-97. A court “view[s] excessive
force claims in segments.” Puskas v. Del. Cty., 56 F.4th 1088, 1094 (6th
Cir. 2023) (citing Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 406
(6th Cir. 2007)).
The Sixth Circuit does not appear to have conclusively ruled on
whether the lawfulness of an arrest is relevant, but in keeping with the
trends of sister circuits, district courts in this circuit have held that it is
not. See Niewolak v. Bartynsky, 615 F. Supp. 3d 652, 664 (E.D. Mich.
2022) (relying on the Second, Third, Seventh, Ninth, and Eleventh
circuits, explaining that “the lawfulness of an arrest is irrelevant to an
excessive force analysis”) (citing Sebright v. City of Rockford, 585 F.
App’x 905, 907 (7th Cir. 2014) (collecting cases)). As Justice (thenJudge) Sotomayor explained in a 2006 case, “the reasonableness test
established in Graham remains the applicable test for determining
when excessive force has been used, including those cases where officers
allegedly lack probable cause to arrest.” Papineau v. Parmley, 465 F.3d

108

46, 62 (2d Cir. 2006); see also Est. of Sowards v. City of Trenton, 125 F.
App’x 31, 41 (6th Cir. 2005) (holding that “the illegal entry into a
suspect’s home by officers did not automatically expose those officers to
liability for any injuries that the suspect may have suffered as a result
of excessive force employed during the arrest.”).
In the use-of-force context, “once the relevant set of facts is
determined and all reasonable inferences are drawn in favor of the
plaintiffs, to the extent supported by the record, the question of whether
the [officers’] actions were objectively unreasonable is ‘a pure question
of law.’” Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009)
(quoting Scott v. Harris, 550 U.S. at 381 n.8; and citing Dunn v.
Matatall, 549 F.3d 348, 353 (6th Cir. 2008)). But “if there is some
evidence – more than a mere scintilla of evidence – that [the plaintiff],
through his conduct, judged from the perspective of reasonable officers
on the scene, did not give the officers probable cause to believe that he
posed a serious threat of harm, a genuine fact dispute is created.”
Chappell, 585 F.3d at 909 (emphasis in original).
Here, the first two Graham factors weigh in Plaintiffs’ favor. The
severity of the Gradys’ alleged crime – up until the moment of their

109

arrest – was, in the light most favorable to them, that they didn’t back
up some amount of feet from a police investigation, when they already
stood about at the edge of the police perimeter and remained at a
reasonable distance while making no movements toward the police. At
most, police had probable cause that they had failed to comply with the
order to back up. Failing to move from the perimeter would not indicate
resistance justifying the use of a taser or of fist strikes. See Saalim v.
Walmart, Inc., 97 F.4th 995, 1006 (6th Cir. 2024) (“[F]ailure to exit a
vehicle is not active resistance and does not justify the use of a taser.”)
(quoting Browning v. Edmonson Cnty., 18 F.4th 516, 527 (6th Cir.
2021)). Second, the fact that the Gradys never changed their physical
position and, at most, shouted at police, indicates that they never posed
any immediate physical threat to officers before the officers moved to
arrest them. As WSCO’s policies put it, “Verbal or psychological
resistance generally does not cause an imminent threat to the safety of
the officer or the public.” ECF No. 75-3, PageID.4134. It is also clearly
established that people who pose no safety risk to police have a right “to
be free from gratuitous violence during arrest.” Gambrel v. Knox Cty.,
25 F.4th 391, 403 (6th Cir. 2022) (citing Shreve v. Jessamine Cty. Fiscal

110

Court, 453 F.3d 681, 687 (6th Cir. 2006); Phelps v. Coy, 286 F.3d 295,
301 (6th Cir. 2002)).
Once an arrest begins, however, a line is drawn between active
and passive resistance to arrest. Active resistance “can be
characterized by physical force, a show of force, or verbal hostility
coupled with failure to comply with police orders.” Jackson v.
Washtenaw Cnty., 678 F. App’x 302, 306 (6th Cir. 2017) (citing Goodwin
v. City of Painesville, 781 F.3d 314, 323 (6th Cir. 2015)); Rudlaff, 791
F.3d at 641. Mere passive resistance, in contrast, entails a “lack of
physical resistance or verbal antagonism.” Jackson, 678 F. App’x at
306; Eldridge v. City of Warren, 533 F. App’x 529, 535 (6th Cir. 2013).
“[W]hen individuals behave nonviolently and are merely noncompliant,
this Court has found that they are only passively resisting arrest, which
weighs against the reasonableness of a use of force.” Saalim v.
Walmart, Inc., 97 F.4th 995, 1005 (6th Cir. 2024). “Even repeated
refusals to comply will not, by themselves, convert passive into active
resistance.” Alston v. City of Detroit Police Officers, 717 F. Supp. 3d
618, 631 (E.D. Mich. 2024) (citing Eldridge, 533 Fed. App’x at 535). But
once the line into active resistance is crossed, Sixth Circuit cases “firmly

111

establish that it is not excessive force for the police to tase someone
(even multiple times) when the person is actively resisting arrest.”
Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015); see id. at 643
(“[P]olice officers can tase someone who resists lawful arrest and refuses
to move his hands so the police can handcuff him.”) (citing Hagans v.
Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012)
(collecting cases)).
Although neither Grady presented a physical threat to police
before their arrests, that determination may have reasonably changed
during their arrests. Here, there is no genuine, reasonable dispute that
Shatina Grady and Daniel Grady actively resisted their arrest once it
began, including Shatina biting her arresting officer. Most critically to
that analysis, Plaintiffs do not contest that they resisted arrest. ECF
No. 75, PageID.4102 (Plaintiffs’ Response brief) (“Plaintiffs committed
no crime in this case, Plaintiffs were not fleeing from the deputies but
instead stayed in the same area, and lastly, Plaintiffs were resisting
an unlawful arrest.”) (emphasis added). Nor could they reasonably
contest it.

112

First, Shatina Grady. The video and relevant testimony confirm
that Grady physically resisted by fighting and bighting Pearson. See
supra notes 37-45 and accompanying text. Pearson testified that he
struck her on the head only to get her to stop biting him. ECF No. 69-5,
PageID.2036. Her testimony that she cannot remember the incident,
see ECF No. 69-9, PageID.2709, is insufficient to create a dispute of
material fact in this instance. 70 Daniel Grady’s testimony is also not
sufficient to create a dispute of fact in light of the video evidence. See
ECF No. 69-10, PageID.2918 (when asked “Did you see” Shatina Grady
bite Pearson, Daniel Grady says “No.”). Fist strikes to get her to release
her bite falls within the bounds of case law establishing a reasonable
use of force, even if the arrest began for only a failure to back up. See
Johnson v. City of Lincoln Park, 434 F. Supp. 2d 467, 479–80 (E.D.
Mich. 2006) (no excessive force when officer used taser to subdue
individual who bit officer); King v. United States, No. 1:16-cv-343, 2017

70 The video evidence showing the bite marks on Pearson’s arm corroborates

his testimony and no explicitly controverting testimony exists. See Wysong v. City
of Heath, 260 F. App’x 848, 858 (6th Cir. 2008) (“Wysong could raise a fact question
through his own testimony, but he cannot because admits to not remembering the
relevant events.”).
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U.S. Dist. LEXIS 215640, at *26-27 (W.D. Mich. Aug. 24, 2017) (same).
Therefore, her excessive force claim cannot stand.
Daniel Grady’s arrest warrants more attention. The video and
relevant testimony also confirms that Daniel Grady likely did more
than just passively resist; a struggle ensues when Cratsenburg goes to
arrest him. See Cratsenburg Bodycam at 46:51. However, because it is
not clear what is happening, in the light most favorable to Mr. Grady,
his resistance could have consisted of tensing his arms and pulling
away and thereby preventing Cratsenburg from handcuffing him, but
not fighting back or pushing Cratsenburg away. Still, the Sixth Circuit
has recently reaffirmed that even that kind of action counts as active
resistance. “If an arrestee kicks, flails, and wriggles away from an
arresting officer’s grasp, or repeatedly pulls his left arm away from an
officer’s handcuffs, officers may use a taser to restrain him.” Moore v.
Oakland Cty., No. 24-1563, 2025 U.S. App. LEXIS 1473, at *8 (6th Cir.
Jan. 23, 2025) (recommended for publication) (quoting Roell v.
Hamilton County, 870 F.3d 471, 482-83 (6th Cir. 2017); Bell v. City of
S.field, 37 F.4th 362, 368 (6th Cir. 2022)) (cleaned up).

114

Even so, consideration of the other Graham factors makes the use
of a taser seem unreasonable. Daniel Grady’s alleged crime consisted
of, in full, not backing up while he stood on a public sidewalk, about 2030 feet away from a house that police had secured, with his phone out.
Police escalated the encounter by arresting him; in the course of that
arrest where he tried to avoid being handcuffed, they tased him. At the
moment he was tased, he was not touching any officer, nor does he
appear to be attempting to approach an officer, or attempting to flee –
he just stands there. See Cratsenburg Bodycam at 46:58-47:02.
Perhaps more importantly, Cratsenburg tells Grady, “Let go or you’re
going to get tasered,” and Grady is either pushed off or relinquishes his
grip. Another officer steps in between Grady and Cratsenburg and
apparently pushes Grady backward again. See Cratsenburg Bodycam
at 46:57 (warning), 47:04 (taser). With the video inconclusive, in the
light most favorable to Grady a jury could find that he essentially
complied with the order to let go and backed off, and then was tasered
at the moment that he no longer posed a physical threat to officers. The
reasonableness of that taser use, segmented to that moment, is in this
court’s opinion debatable by a reasonable jury. See, e.g., Greene v.

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Barber, 310 F.3d 889, 897 (6th Cir. 2002) (where under Graham factors
plaintiff was not attempting to flee, crime was low-level disturbance in
public place, but he actively resisted arrest, use of pepper spray “might
be found to have constituted excessive force”).
However, although that factual finding could establish a
constitutional violation, binding language permitting taser use against
actively resisting arrestees makes the application of qualified immunity
appropriate in this instance. Daniel Grady admits that his conduct
became active resistance, and although his alleged crime was a minor
one, his conduct “does not fit cleanly within” existing excessive force
case law and he cannot overcome the clearly established hurdle of
qualified immunity. See King v. City of Rockford, 97 F.4th 379, 397 (6th
Cir. 2024) (citing Rudlaff, 791 F.3d at 644 (second quoting citation
omitted)); Ryan v. City of Hazel Park, 279 F. App’x 335, 338 (6th Cir.
2008) (“This Court has held that officials are entitled to qualified
immunity in the face of excessive force allegations even when the
plaintiff ‘was suspected of relatively minor crimes’ if the plaintiff
resisted and the officials responded with force.”)

116

The Gradys, for their part, don’t truly present many arguments
against any of the court’s conclusions above; their argument instead
comes down to their claim that a) they committed no crime, b) officers
failed to de-escalate the situation, and c) they retain the right to resist
an unlawful arrest under Michigan law. See ECF No. 75, PageID.4102.
The court has already addressed their first and second arguments in
discussion of the Graham factors. As to their third (and more central)
argument, although individuals do possess a common law right to resist
unlawful arrest in Michigan, see People v. Moreno, 491 Mich. 38, 57
(2012), the court “has been unable to locate any decision, reported or
otherwise, in which that principle was used to overcome qualified
immunity in a suit to recover damages for the application of allegedly
excessive force, rather than as a defense to a charge of resisting arrest.”
See Davis v. Walleman, 596 F. Supp. 3d 877, 892 n.3 (E.D. Mich. 2022).
Lacking any authority suggesting that could be the case, the court will
not find so here. 71
71 Plaintiffs’ citation to Derowitsch v. Granger, 783 F. App’x 979 (11th Cir.

2019) is inapposite. See id. at 984 (if “an excessive force claim is predicated solely
on allegations the arresting officer lacked the power to make an arrest, [and] the
excessive force claim is entirely derivate of, and is subsumed within, the unlawful
arrest claim.”). Not only does that not fully capture a challenge to the

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Because the Gradys have conceded that they resisted arrest, the
facts confirm that they did so, and they present no case law establishing
a right to resist unlawful arrests under the Fourth Amendment,
Defendants are entitled to summary judgment on Plaintiffs’ excessive
force claims.
iv.

Fourteenth Amendment (Equal Protection and Due
Process) (Count II)

Having determined that Plaintiffs’ unreasonable seizure and
excessive force claims under the Fourth Amendment fail as a matter of
law, the court turns to the remaining claims under Count II under the
Fourteenth Amendment.
Defendants argue that the existence of probable cause and
qualified immunity puts Plaintiffs’ due process Fourteenth Amendment
claims beyond debate. See ECF No. 69, PageID.1649. They also claim
that Plaintiffs’ equal protection claim fails because the officers did not
treat the Gradys differently from similarly situated persons. ECF No.
69, PageID.1650. However, as Defendants also argue, a more

reasonableness of the force used, but it otherwise would cause their claim to be
subsumed under either their Fourth Amendment claim or First Amendment claim.
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fundamental problem underlies Plaintiffs’ alleged due process claim. “If
the complaint is that a form of legal process resulted in pretrial
detention unsupported by probable cause, then the right allegedly
infringed lies in the Fourth Amendment,” not the Fourteenth
Amendment’s due process clause. Manuel v. City of Joliet, 580 U.S.
357, 367 (2017). Plaintiffs’ claims of unlawful arrest sound in the
Fourth Amendment, not the Due Process Clause. See ECF No. 75,
PageID.4095.
As to equal protection, that principle “must coexist with the
practical necessity that most [government action] classifies for one
purpose or another, with resulting disadvantage to various groups or
persons.” Romer v. Evans, 517 U.S. 620, 631 (1996). As a result, if an
action or law “neither burdens a fundamental right nor targets a
suspect class,” differential treatment should be upheld “so long as it
bears a rational relation to some legitimate end.” See id. Here,
plaintiffs have not argued that they were treated differently based on a
suspect class, nor that a fundamental right was burdened. To the
extent that plaintiff has alleged a burden on their fundamental First
Amendment rights, that claim is captured by their retaliation claim.

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“Where a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government
behavior, ‘that Amendment, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing’ such a
claim.” Albright v. Oliver, 510 U.S. 266, 268 (1994) (citing Graham v.
Connor, 490 U.S. 386). Instead Plaintiffs argue that they were “treated
differently than other persons who were similarly situated and that
there exists no rational basis for such disparate treatment[,]” known as
a “class of one” claim. ECF No. 75, PageID.4100; see Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (quotation marks
omitted). But in the context of this case, when Plaintiffs argue that
they were arrested without rational legal basis, they functionally argue
that they were arrested without probable cause compared to other
spectators and neighbors who were not arrested. Without needing to
address who the proper comparator class is under an equal protection
view, it is sufficient to state that “[p]robable cause is a rational basis for
official action.” Avila v. Pappas, 591 F.3d 552, 554 (7th Cir. 2010).
Here, probable cause existed and no suspect class is implicated, and so
their equal protection arguments fail as a matter of law.

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Defendants are therefore entitled to summary judgment on the
Due Process and Equal Protection claims on the basis that their due
process claim properly sounds in Plaintiffs’ Fourth Amendment claim,
any fundamental right claim sounds in the First Amendment, and a
rational basis existed for their arrests.
As a result, Defendants’ motion is GRANTED as to all claims
under Count II.
v.

Eighth Amendment (Count III)

Plaintiffs have conceded in their written brief that their Eighth
Amendment claims should be stricken, ECF No. 75, PageID.4100, and
thus Defendants’ Motion is GRANTED as to Count III.
C.

Claims under state law
i.

False Imprisonment (Count IV)

False imprisonment is defined as an unlawful restraint on a
person’s liberty or freedom of movement. Clarke v. K-Mart Corp, 197
Mich. App. 541, 546 (1993). To prevail on a claim of false arrest or false
imprisonment, a plaintiff must show that the arrest was not legal, i.e.,
the arrest was not based on probable cause. Lewis v. Farmer Jack, Inc,
415 Mich. 212, 218 (1982); e.g. Peterson Novelties, Inc. v. City of Berkley,

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259 Mich. App. 1, 17-18 (2003). Because probable cause existed, this
claim fails as a matter of law and the Defendants’ motion for summary
judgment is GRANTED as to Count IV.
ii.

False Arrest (Count V)

Under Michigan law, the terms false arrest and false
imprisonment are interchangeable. Lewis v. Farmer Jack Div., Inc.,
415 Mich. 212, 232 (1982). “[F]alse arrest and false imprisonment are
not separate torts, and a false arrest is one way to commit false
imprisonment; since an arrest involves a restraint, it always involves
imprisonment.” Id. at 231 n.4 (quoting 32 Am. Jur. 2d, False
Imprisonment, § 2, at 59-60); see Ratcliff v. City of Detroit, No. 2:19-cv13458, 2021 U.S. Dist. LEXIS 133736, at *9 (E.D. Mich. July 19, 2021).
Therefore, for the reasons stated above, the motion is likewise
GRANTED as to Count V.
iii.

Assault and Battery (Count VI)

Assault and battery claims under Michigan law share some
similarities with Fourth Amendment excessive force claims. See
Rideout v. Shelby Twp., 691 F. Supp. 3d 816, 834 (E.D. Mich. 2023)
(“Arresting officers may use reasonable force to effectuate a lawful

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arrest.”) (cleaned up, quoting citation omitted); Webb v. City of Taylor,
No. 236153, 2002 Mich. App. LEXIS 1911, at *9 (Ct. App. Dec. 3, 2002)
(but “if the force used is excessive, a police officer may be held liable for
assault and battery despite the validity of the arrest.”) (citations
omitted). Two differences are relevant to this case: first, under state
law, a claim for assault and battery can lie even where reasonable force
was used if a plaintiff was unlawfully arrested (though whether the
“lawfulness” is just a matter of objective probable cause or includes
other constitutional defects is likely arguable). See People v. Eisenberg,
72 Mich. App. 106, 111 (1976) (“An unlawful arrest is nothing more
than an assault and battery against which the person sought to be
restrained may defend himself as he would against any other unlawful
intrusion upon his person or liberty.”). Second, state law immunity
differs slightly from the qualified immunity analysis. If a plaintiff
pleads an intentional tort against a government official, the court must
determine whether the defendant established that he is entitled to
individual governmental immunity by showing, among other things,
that “the acts were undertaken in good faith, or were not undertaken
with malice[.]” Odom v. Wayne Cty., 482 Mich. 459, 480 (2008).

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Here, the court has already analyzed whether the force was
excessive in the context of Plaintiffs’ Fourth Amendment claims. Two
issues thus remain: first, whether the possible unlawfulness of their
arrests under the First Amendment changes the result as to Shatina
Grady’s state law assault and battery claim, and second, whether
governmental immunity would protect the officers regardless. The
parties’ focus on the second question resolves the claim without needing
to answer the first.
Defendants claim that “the Gradys can point to no evidence of bad
faith,” and therefore the Defendants would be entitled to governmental
immunity. ECF No. 69, PageID.1649 (citing McColman v. St. Clair
Cnty., 2010 WL 4483389, at *15 (E.D. Mich. Nov. 1, 2010) (the plaintiff
showed “absolutely no evidence” that the deputy acted in bad faith).
Plaintiffs respond that “[a]n officer lying about his basis for arrest
would be ‘strong evidence of malice[,]’” and that “occurred here both at
the preliminary exam and at trial.” ECF No. 75, PageID.4103 (citing
Romo v. Largen, 723 F.3d 670, 676 (6th Cir. 2013). In other words,
Plaintiffs argue that the officers lied in their testimony regarding
probable cause because they allegedly lied about there being a

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perimeter set up, and the resulting lack of probable cause made the
arrest unlawful. Here though, while the court has agreed that there is
a material factual dispute as to the officers’ actual motive in arresting
Plaintiffs, the court has concluded that there was an objective, valid
basis for arrest available to officers for the Gradys’ failure to back up,
even if they did not put up police tape to clearly mark the perimeter.
Because that is Plaintiffs’ sole argument defending their state law
claims, and the court disagrees that those statements alone establish
malice relevant to an assault and battery claim, Plaintiffs have not
provided the court any reason to depart from its conclusions as to
Plaintiffs’ Fourth Amendment excessive force claims. See King v. City
of Rockford, 97 F.4th 379, 400 (6th Cir. 2024) (“While the good-faith
element in the [Michigan] government immunity context is subjective,
the application of immunity largely tracks the application of qualified
immunity in the § 1983 context.”).
Defendants’ motion is therefore GRANTED as to Count VI.
iv.

Intentional Infliction of Emotional Distress (“IIED”)
(Count VII)

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The elements of intentional infliction of emotional distress
(“IIED”) are (1) extreme and outrageous conduct; (2) intent or
recklessness; (3) causation; and (4) severe emotional distress. Roberts v.
Auto-Owners Ins Co, 422 Mich. 594, 602 (1985). “The threshold for
showing extreme and outrageous conduct is high,” and “[n]o cause of
action will necessarily lie even where a defendant acts with tortious or
even criminal intent.” VanVorous v. Burmeister, 262 Mich. App. 467,
481 (2004). A police officer executing an arrest supported by probable
cause does not act in an extreme or outrageous manner. Walsh v.
Taylor, 263 Mich. App. 618, 634 (2004) (holding that because the officer
established probable cause to arrest the plaintiff, “as a matter of law he
cannot be liable for intentional infliction of emotional distress.”); see
also Fleming v. Scruggs, 465 F. Supp. 3d 720, 748 (E.D. Mich. 2020)
(citing Henderson v. Jackson, No. 15-10807, 2016 U.S. Dist. LEXIS
72506, 2016 WL 3125214, at *12 (E.D. Mich. June 3, 2016)) (“The
plaintiff has presented ample evidence that Jackson intended to
cause physical injury upon Henderson, but there is no evidence that the
defendant intended to inflict emotional trauma. . . . ”) (emphasis in
original) (citation omitted)). “[F]ederal courts generally hold that a

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claim for IIED is made out only where the defendant procured an arrest
and ensuing charges knowingly based on false or fabricated evidence.”
Akima v. Peca, 652 F. Supp. 3d 848, 864 (E.D. Mich. 2023).
Probable cause existed to arrest Plaintiffs, and Plaintiffs have not
presented any specific arguments in response to Defendants’ motion for
summary judgment on their IIED claim. Again, the only argument on
point in Plaintiffs’ response appears to be that government immunity
does not apply because “Defendants, mainly Pearson and Cratsenburg
acted with malice . . . [by] lying about [the] basis for arrest . . . .” But as
explained above, their testimony as to their motive for arresting
Plaintiffs does not prevent there having been probable cause, and
Plaintiffs have not explained how or why these statements could or
should still be considered malicious, false, or fabricated evidence if
there was objective probable cause. Defendants are therefore entitled to
governmental immunity and summary judgment on the IIED claim,
and their motion is likewise GRANTED as to Count VII.
V.

CONCLUSION
Therefore, the Court GRANTS the motion for summary judgment

as to Counts II, III, IV, V, VI, and VII, but DENIES the motion as to

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Count I (First Amendment retaliation) for both Plaintiffs. Defendant
Buffa is DISMISSED from the case in full.
This is not a final order and does not close the case. A scheduling
order for a trial and remaining pretrial dates will be issued.
SO ORDERED.

Date: March 7, 2024

s/F. Kay Behm
F. Kay Behm
United States District Judge

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