Estate of Smithers ex rel. Norris v. City of Flint

• Citation: 602 F.3d 758
• Decision Date: 21 April 2010
• Docket Number: No. 09-1164.,09-1164.
• Parties: ESTATE OF Leon SMITHERS, by his Personal Representative, Homer NORRIS, Jr.; Alan Sharp; Robert Bonner, Plaintiffs-Appellants, v. CITY OF FLINT; Terrance Walker; Brian Murphree, Officers; Gacia, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

602 F.3d 758

ESTATE OF Leon SMITHERS, by his Personal Representative, Homer NORRIS, Jr.; Alan Sharp; Robert Bonner, Plaintiffs-Appellants, v. CITY OF FLINT; Terrance Walker; Brian Murphree, Officers; Gacia, Defendants-Appellees.

No. 09-1164.

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2010.

Decided and Filed: April 21, 2010.

ARGUED: James M. Cull, Cull & Cull, Southfield, Michigan, for Appellants. Michael J. Gildner, Simen, Figura & Parker, P.L.C., Flint, Michigan, I'Lanta M. Robbins, City of Flint Law Department, Flint, Michigan, for Appellees. ON BRIEF: James M. Cull, Cull & Cull, Southfield, Michigan, for Appellants. Michael J. Gildner, Simen, Figura & Parker, P.L.C., Flint, Michigan, I'Lanta M. Robbins, City of Flint Law Department, Flint, Michigan, for Appellees.

Before MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Plaintiffs Alan Sharp, Robert Bonner, and the estate of Leon Smithers appeal the district court's dismissal of their claims against Officers Brian Murphree and Terrance Walker and the City of Flint, Michigan alleging constitutional violations pursuant to 42 U.S.C. §§ 1983, 1985(2) & (3), regarding the events surrounding the fatal shooting of Smithers and the injury of Sharp and Bonner. The officers took an intoxicated Shirley Washington Ewing, Smithers' girlfriend, into custody, ticketed her for trespassing, and released her to her mother shortly thereafter. Washington then returned to Smithers' home and shot him, Sharp, and Bonner. Plaintiffs' claims stem from the officers' decision to arrest Washington for trespassing rather than for domestic violence, which would have required her to be held for 20 hours, and, they argue, prevented the tragedy. For the reasons set forth below, we AFFIRM the district court's entry of judgment for the defendants.

I.

On October 26, 2002, Smithers was in his Flint, Michigan home with Alan Sharp, Robert Bonner, Shirley Washington Ewing,¹ and Booker Washington watching television and playing cards. According to Sharp, everyone was drinking and a verbal, but non-physical, argument began between Smithers and Washington, his girlfriend. Smithers asked Washington to leave, but she refused.

Smithers telephoned the Flint Police Department requesting the removal of Washington, stating "I got a problem up here in the house. I want someone to leave, they don't stay here." Dispatcher Tanyanika Gibbs testified that, when she requested additional information, Smithers told her that someone was refusing to leave his house and he was not going to say anything further. Gibbs dispatched Officers Brian Murphree and Terrance Walker to the residence with the dispatch code TWM, for "trouble with a man."

Bonner testified that the intoxicated Washington threatened to kill Smithers, Sharp, and Bonner, and stated that she intended go home and "retrieve her nine millimeter handgun" and that this "would be the last time that Smithers would ever call the police on her."

When the officers arrived, Officer Walker questioned Smithers and Washington. Smithers stated that Washington was his girlfriend but that she did not live there and that he wanted her to leave the residence. Smithers asked the "obviously intoxicated" Washington to leave. Sharp and Booker testified that Washington repeated her statement that "this would be the last time that Smithers would call the police on her," and stated that "if you take me to jail, I'm going to come back and kill `em." The officers testified that they did not hear any death threats. When the officers informed her that she would be arrested if she did not leave, Washington stated "f * * * -it, arrest me." Washington's brother, Mr. Washington, testified that he heard her state that she was "going to f* * * y'all up when I get out of jail," as the officers handcuffed her and placed her in the back of the squad car. Smithers and his friends went back inside without locking the door. Meanwhile, Washington was taken to the Flint police station, booked, issued an appearance ticket for trespassing, and released. Washington called her mother to take her home. Washington returned to Smithers' house shortly after 7 p.m. with a gun, fatally shooting Smithers and wounding Sharp and Mr. Washington. Washington was convicted by a jury of second-degree murder.

On October 14, 2005, Sharp, Bonner, and the estate of Smithers filed suit in the Circuit Court of Genessee County, Michigan, alleging constitutional violations pursuant to 42 U.S.C. §§ 1983, 1985(2) & (3), and state law claims arising from the events surrounding the shooting incident. Plaintiffs allege that the officers "conspired with one another and other officers in the department, in an attempt to hide. . . the fact that the death and injuries should have been prevented by the Flint Police Department and its officers." Plaintiffs request monetary damages for "Defendants' negligent acts, failure to follow the proper procedures and . . . complete disregard of local, state and federal law and constitutional protections", alleging conspiracy and violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. The matter was removed to federal district court on November 14. On November 22, the district court remanded the state law claims.

On July 24, 2008, Magistrate Judge R. Steven Whalen heard oral argument on cross-motions for summary judgment. Magistrate Judge Whalen filed a Report and Recommendation on September 2, 2008, recommending that the district court grant defendants' motion for summary judgment. Following objections,² the district court adopted the Report and Recommendation on January 16, 2009, specifically overruling plaintiffs' objections and entering judgment in favor of defendants. Estate of Smithers v. City of Flint, Slip Op., No. 05-40347, 2009 WL 117623, at *11 (E.D.Mich. Jan. 16, 2009). Plaintiffs timely appealed.

II.

A. Standard of Review

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The "mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Procedural Due Process

Plaintiffs allege that Washington made death threats in the presence of the officers and that the officers were therefore required to detain her for at least 20 hours for domestic violence, pursuant to MCL § 750.81a, rather than arresting her for trespassing and releasing her on an interim bond. The officers' failure to detain Washington for those 20 hours allegedly deprived plaintiffs of their Fourteenth Amendment rights to procedural due process. The district court disagreed and entered summary judgment on the procedural due process claim.

The Supreme Court has held that a state statute written in purportedly mandatory terms providing that "a peace office shall arrest" a person whom he has probable cause to believe has violated a domestic restraining order does not give rise to a protected property interest under the Due Process Clause. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 749, 766, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). The Supreme Court found that police have the "discretion to determine that—despite probable cause to believe a restraining order has been violated—the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance." Id. at 761, 125 S.Ct. 2796. Castle Rock held that, even if a statute confers an individual entitlement to enforcement, this is not the "sort of `entitlement' out of which a property interest is created." Id. at 764, 125 S.Ct. 2796.

The district court found that MCL § 750.81 a provides that a police officer may arrest an individual charged with domestic violence, not that he must.³ The law gives officers discretion in determining whether an action constitutes a domestic violence incident. While plaintiffs are correct that officers do not have the discretion to release an individual pursuant to MCL § 780.582a should she be arrested for domestic violence, the Supreme Court has held that police officers have discretion to determine whether to arrest someone for domestic violence in the first place, even if the relevant statute seems to make such an arrest mandatory. Thus, even assuming that the officers heard Washington make a threat, they had discretion not to arrest her on charges of domestic violence.

Thus, the district court did not err in granting defendants' motion for summary judgment on plaintiffs' procedural due process claim.

C. Substantive Due Process

Plaintiffs argue that the district court erred in finding that they had failed to establish a substantive due process claim based on a state-created danger when defendants released Washington. Essentially, plaintiffs argue that the officers created a danger to them when the officers chose to ticket Washington for trespassing and to release her, rather than to detain her for 20 hours on charges of domestic violence. They also argue that the officers' arrest of Washington for trespassing created an illusion of safety because plaintiffs believed that Washington would be held for 20 hours pursuant to a domestic violence arrest.

In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court held that the Due Process clause does not "require the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195, 109 S.Ct. 998. In both DeShaney and Bukowski v. City...