Grove v. Wallace et al
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:15-CV-166
HON. GORDON J. QUIST
KENT WALLACE, KINROSS
CHARTER TOWNSHIP and
Plaintiff, Tania Grove, has sued Defendants Kent Wallace, Kinross Charter Township, and
Kim Holland regarding an incident that occurred on September 2, 2013, in which Wallace forcefully
entered Grove’s residence during a “civil standby.” In her first amended complaint, Plaintiff alleges
that (1) Wallace violated her Fourth Amendment rights (Count I); (2) the Township is liable for
Wallace’s violation (Count II); (3) Holland committed assault and battery (Count III); and (4)
Wallace and Holland both committed the tort of invasion of privacy—unlawful intrusion on
seclusion (Count IV).
Wallace and the Township move for summary judgment/dismissal on Counts I, II, and IV,
and Plaintiff moves for summary judgment on Count I against Wallace. The Court heard oral
argument on the motions on December 7, 2016.
For the reasons set forth below, the Court will grant Plaintiff summary judgment and deny
Wallace summary judgment on Count I, grant the Township summary judgment on Count II, and
grant Wallace summary judgment on Count IV.
The facts material to the instant motions are largely undisputed.
On the morning of September 2, 2013, Defendant Wallace, a police officer with the Kinross
Township Police Department, was dispatched to 81 Evergreen Drive, Kincheloe, Michigan, for a
so-called “civil standby” requested by Defendant Kim Holland. Plaintiff owned the residence, and
Jason Grove, Holland’s ex-husband, who was Plaintiff’s then-fiancé, stayed there occasionally.
Grove’s and Holland’s three children, for whom they shared joint custody, were staying with
Plaintiff and Grove that week so that the children could participate in 4-H competitions at the
Chippewa County Fair. Holland requested police presence while she picked up the children from
That morning, Plaintiff, Grove and the children had gone to the fair grounds to take care of
the children’s animals. After they returned home, around 9:00 a.m., they went to the family room
in the basement to watch movies. Later that morning, before noon, Plaintiff left the residence to get
some exercise and locked the front door.
Holland called the police around 11:00 a.m. When Wallace and Reserve Officer Gary
Grabendike arrived at the Evergreen address, Holland told them that she was there to pick up her
children and no one was answering the knocks on the door even though both vehicles (Plaintiff’s
and Grove’s) were in the driveway. Wallace knocked on the front door several times without a
response. Holland told Wallace that she was supposed to pick up the children between 11:00 a.m.
and noon; Wallace suggested that they come back around noon and try again. Wallace and Officer
Grabendike returned to their office, and Holland went to the fair grounds to search for Grove and
Wallace and Officer Grabendike returned to the residence around noon, where they met
Holland and her husband. Wallace, Officer Grabendikek and the Hollands went to the front door,
and Wallace knocked several times. Receiving no answer, Wallace told Holland and that there was
nothing else he could do and suggested that she file a complaint with the friend of the court. As
Wallace turned to walk away, he heard a baby or a child crying.1 Wallace told Officer Grabendike
that he was going into the residence. Wallace then knocked on the front door, announced himself,
and yelled that he was going to come in if the occupants did not answer. Receiving no response,
Wallace kicked the door several times with his foot and forced it open. Wallace entered and yelled
“police department,” at which point Grove came up the stairs. Wallace demanded that Grove
produce identification, and Grove complied. Wallace left the residence after about ten minutes.
Fourth Amendment Claim Against Wallace
In Count I, Plaintiff alleges that Wallace violated her Fourth Amendment rights by entering
her house without a warrant. Wallace concedes that he lacked a warrant, but argues that there were
exigent circumstances and that, therefore, he is entitled to qualified immunity. Plaintiff argues that
she is entitled to summary judgment because there were no exigent circumstances and Wallace is
not entitled to qualified immunity.
“Under the doctrine of qualified immunity, ‘government officials performing discretionary
functions generally are shielded 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.’” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). Once a defendant raises the qualified immunity
defense, the burden shifts to the plaintiff to demonstrate that the defendant official violated a right
Officer Grabendike testified that he could not hear the crying because he was not wearing his hearing aids.
(ECF No. 20-7 at PageID.237–38.)
The Court finds it unnecessary to recite the well-known summary judgment standard.
so clearly established “that every ‘reasonable official would have understood that what he [was]
doing violate[d] that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)). An officer is
entitled to qualified immunity either if he did not violate the plaintiff’s constitutional rights or the
right “was not ‘clearly established’ at the time of the alleged misconduct.” Citizens in Charge, Inc.
v. Husted, 810 F.3d 437, 440 (6th Cir. 2016) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129
S. Ct. 808, 815–16 (2009)).
Plaintiff alleges that Wallace violated her rights under the Fourth Amendment by entering
her house without a warrant. It is clearly established that, unless one of the limited exceptions to
the warrant requirement applies, police officers may not enter an individual’s home without a
warrant supported by probable cause. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 2459
(2002) (per curiam). Wallace concedes that he lacked a warrant but argues that the exigent
circumstances exception applies in this case. “Exigent circumstances are situations where real[,]
immediate and serious consequences will certainly occur if the police officer postpones action to
obtain a warrant.” Thacker v. City of Columbus, 328 F.3d 244, 253 (6th Cir. 2003) (internal
quotation marks omitted).
The Sixth Circuit has recognized that a risk of danger to the police or
others may present exigent circumstances. See United States v. Williams, 354 F.3d 497, 503 (6th
Cir. 2003). Similarly, the Supreme Court has recognized that “the need to assist persons who are
seriously injured or threatened with such injury” constitutes an exigency excusing a warrant.
Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006). In Brigham City, police
officers responded to a call in the early morning regarding a loud party at a residence. Upon arrival,
the police officers observed through windows and a screen door an altercation in which a juvenile
struck an adult in the face, causing the adult to bleed from the mouth. An officer entered the
residence and announced his presence. Id. at 400, 126 S. Ct. at 1946. The Court held that the entry
was reasonable under the circumstances because the officers could have reasonably believed that
the injured adult might need help and that the violence was just beginning. Id. at 406–07, 126 S. Ct.
at 1949. Thus, “law enforcement officers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from imminent injury.” Id. at 403, 126
S. Ct. at 1947. “Officers do not need ironclad proof of ‘likely serious, life-threatening’ injury to
invoke the emergency aid exception.” Michigan v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 549
(2009). However, they must have “‘an objectively reasonable basis for believing’ that ‘a person
within [the house] is in need of immediate aid[.]’” Id. at 47, 130 S. Ct. at 548 (quoting Mincey v.
Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978)). In other words, there must be a “true
immediacy . . . [and] real danger that serious consequences would certainly occur” to support the
exception. Williams, 354 F.3d at 504. A hunch or mere possibility that an occupant needs
immediate aid cannot justify a warrantless entry. Gradisher v. City of Akron, 794 F.3d 574, 584 (6th
Cir. 2015) (quoting Nelms v. Wellington Way Apartments, LLC, 513 F. App’x 541, 545 (6th Cir.
Wallace argues that exigent circumstances existed because (1) Holland and Grove were to
exchange the children between 11:00 a.m. and noon; (2) no one answered the door at 11 a.m.; (3)
Holland could not find Grove and the children at the fairgrounds; (4) no one answered the door at
12 p.m.; (5) Wallace heard dogs and movement inside the house3; and (6) Wallace heard a baby or
child crying. (ECF No. 20 at PageID.129.) None of the these circumstances, either alone or in
combination, provide “an objectively reasonable basis for believing that a person within [the
house] is in need of immediate aid[.]” Fisher, 558 U.S. at 47, 130 S. Ct. at 548 (internal quotation
Wallace cites no record evidence to establish that he heard dogs and movement inside the house.
marks omitted). The facts boil down to this: someone was home but not answering the door and a
baby was crying. A conclusion that exigent circumstances existed on these facts requires a fair
degree of speculation, which, as mentioned above, cannot support exigent circumstances. An
occupant may not answer the door for a number of reasons: she does not hear knocking or the
doorbell ringing; she is busy with something more pressing, such as a hungry, tired, or belligerent
child; or perhaps she simply does not want to answer the door. A crying baby or child, on these
facts, adds nothing to the exigent circumstances calculus. Moreover, the cases Wallace cites,
Schreiber v. Moe, 596 F.3d 323 (6th Cir. 2010), and Hameed v. City of Dearborn, 2012 WL
3758083 (E.D. Mich. Oct. 29, 2013), are distinguishable because, in both cases, the police received
911 calls reporting possible domestic violence. In Schreiber, the circumstances the officer observed
when he arrived at the residence tended to confirm the caller’s report that the plaintiff was beating
his daughter. Schreiber, 596 F.3d at 330–31. Similarly, in Hameed, the crying baby confirmed the
caller’s report of domestic abuse. Hameed, 2012 WL 3758083, at *3. In the instant case, there was
no similar circumstance linking the crying baby to imminent injury or the need for immediate police
assistance. While “ironclad proof” is not required to support the need for immediate assistance or
aid, Fisher, 558 U.S. at 49, 130 S. Ct. at 549, there must be more than a thin reed of speculation.
Gradisher, 794 F.3d at 584. Because there is no genuine issue of material fact, Plaintiff has
established a constitutional violation as a matter of law.
Citing Mullenix v. Luna, __ U.S. __, 136 S. Ct. 305 (2015), and Brosseau v. Haugen, 543
U.S. 194, 125 S. Ct. 596 (2004), Wallace argues he is entitled to qualified immunity because the law
was not clearly established that his conduct violated the Fourth Amendment in this particular
context. In Mullenix and Brosseau—both of which were excessive force cases—the Supreme Court
emphasized that courts should not conduct the clearly established inquiry “‘at a high level of
generality.’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742, 131 S. Ct. at 2084).
However, the Court also reaffirmed that a case directly on point is not necessary, so long as the
official has notice that his conduct violates the right at issue. Id. In this regard, there are
two paths for showing that officers were on notice that they were violating a “clearly
established” constitutional right—where the violation was sufficiently “obvious”
under the general standards of constitutional care that the plaintiff need not show “a
body” of “materially similar” case law, and where the violation is shown by the
failure to adhere to a “particularized” body of precedent that “squarely govern[s] the
Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005) (quoting Brosseau, 543 U.S. at 199–201,
125 S. Ct. at 599–600) (internal citations omitted).
In this Court’s judgment, in the instant case, the law was clearly established under the first
path—the constitutional violation arising from a police officer’s entry into a residence without a
warrant on the grounds of exigency, where the only justification is that the occupant does not answer
the door and a crying baby or child can be heard inside, is obvious in light of “general standards of
constitutional care.” Id.; cf. Keeton v. Metro. Gov’t of Nashville & Davidson Cnty., 228 F. App’x
522, 525 (6th Cir. 2007) (“Where the police enter a home without a warrant and with no justification
beyond an unverified, unreliable report that the occupant of the home is ‘depressed,’ the
constitutional violation is obvious in light of the general constitutional rule.”). Accordingly,
Wallace is not entitled to qualified immunity.
Municipal Liability Claim
In Count II, Plaintiff alleges a claim for municipal liability against the Township based on
theories of failure to train, failure to investigate, ratification, and the existence of a Township policy
giving police officers discretion to enter homes in the manner Wallace entered Plaintiff’s home. The
Township is entitled to summary judgment because Plaintiff fails to present sufficient evidence to
support these theories.
To establish municipal liability, a plaintiff must “(1) identify the municipal policy or custom,
(2) connect the policy to the municipality, and (3) show that his particular injury was incurred due
to execution of that policy.” Frontera v. City of Columbus Div. of Police, 395 F. App’x 191, 195
(6th Cir. 2010) (internal quotation marks omitted).
Plaintiff fails to present any evidence that
establishes a policy. In fact, Chief Micolo states, “We don’t have a policy and practice that fits this
situation.”4 (ECF No. 26 at PageID.414.) Plaintiff cites no other evidence to support the existence
of a policy.
In addition, Plaintiff fails to show that the Township acted with deliberate
indifference—a necessary element for both failure to train and failure to investigate theories of
municipal liability. See Plinton v. Cnty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (quoting Hill
v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989)); Baker v. Union Twp., No. 1:12-CV-112, 2013 WL
4502736, at *23 (S.D. Ohio Aug. 22, 2013).
Intrusion on Seclusion Claim
Finally, Wallace is entitled to governmental immunity on Plaintiff’s state-law intrusion on
seclusion claim alleged in Count IV. A governmental employee may establish a right to immunity
on an intentional tort by showing: (1) that his acts were undertaken during the course of employment
and he was acting, or reasonably believed he was acting, within the scope of his employment; (2)
he performed the challenged acts in good faith or without malice; and (3) the acts were
discretionary, as opposed to ministerial. Odom v. Wayne Cnty., 482 Mich. 459, 480, 760 N.W.2d
217, 228 (2008). Only the second element is at issue. “Good faith” is a subjective test, under which
a defendant is subject to liability only if he acted with “malicious intent.” Id. at 482, 760 N.W.2d
at 229; see also Brown v. Lewis, 779 F.3d 401, 420 (6th Cir. 2015) (noting that Odom overruled
In her response brief, Plaintiff states that Chief Micolo’s deposition testimony is in the record, but having
reviewed the docket report in this case, the Court determines that Plaintiff is mistaken about the deposition transcript
having been filed.
prior case law that held that an objective test applied to intentional tort claims, such as assault and
battery, for purposes of governmental immunity).
Plaintiff fails to allege any facts or make any argument to show that Wallace acted with
malicious intent. The undisputed evidence is that Wallace was walking away when he heard a child
cry. Although Wallace mistakenly concluded that the circumstances allowed him to enter Plaintiff’s
residence, there is no indication that Wallace acted in bad faith or with malice.
For the foregoing reasons, the Court will grant Plaintiff summary judgment on Count I. The
Court will deny Defendant Wallace summary judgment on Count I, grant the Township summary
judgment on Count II, and grant Wallace summary judgment on Count IV.
A separate order will enter.
Dated: December 19, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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