Jones v. Powell, Docket No. 111842.

Citation612 N.W.2d 423,462 Mich. 329
Decision Date05 July 2000
Docket NumberDocket No. 111842.
PartiesRuth JONES, Individually and as Next Friend of Shree Markita Lee, a Minor, Plaintiffs-Appellants, v. Sergeant Charles POWELL, Defendant-Appellee, and City of Detroit, Detroit Police Officers Paul Boyett, Jeffery Bouyer, Durrell Cooper, Gregory Jones, Kenneth Winslow, Lieutenant Cotton, jointly and severally, Defendants.
CourtSupreme Court of Michigan

Constitutional Litigation Associates, P.C. (by Hugh M. Davis, Jr.), Detroit, for the plaintiff-appellant.

City of Detroit Law Department (by Phyllis A. James and Joanne D. Stafford) Detroit, for the defendant-appellee.

Opinion

PER CURIAM.

The plaintiff brought this action against individual police officers, seeking damages on various theories arising out of their forced entry into her home in search of a suspect. Some claims were dismissed, and the jury found for the defendants on others. However, it found in plaintiff's favor on her claim that the actions of one officer violated her and her daughter's rights under the Michigan Constitution. The Court of Appeals reversed, with the majority basing its decision on the conclusion that the plaintiff had not established that the defendant officer's actions were undertaken pursuant to a custom, policy, or practice of the Detroit Police Department.

We agree with the result reached by the Court of Appeals, though not with the rationale. Rather, we conclude that there is no judicially inferred cause of action under circumstances like those presented in this case. Therefore, we affirm the judgment of the Court of Appeals.

I

The facts underlying this action were summarized by the Court of Appeals as follows:

On October 29, 1991, several Detroit police officers were pursuing an individual suspected of assault and operating a stolen vehicle. The officers believed that the suspect ran into a nearby house owned by [plaintiff] Ruth Jones.... Plaintiff was home with her minor daughter ... when she heard a man's voice yell, "He's in 17331," followed by the sounds of a crash and a window breaking. Plaintiff and her daughter ran to a back bedroom for several minutes. Plaintiff heard loud voices saying, "B___, open up the mother f___ing door, we know he's in there." Plaintiff returned to the living room, where she saw that the front storm door and inner door had been forcefully opened. However, a security gate remained locked. Plaintiff told the officers that no one was in the house but plaintiff and her baby.
Pursuant to the officers' demands, plaintiff retrieved her keys and opened the security gate. Plaintiff testified that the officers entered the house and that two of the officers, defendants Powell and Kenneth Winslow, pointed their guns at her. Plaintiff was allowed to go next door to her sister's house, while the officers, with the aid of a police dog, searched plaintiff's home. However, no one was found inside. Plaintiff testified that she did not give the officers consent to enter or search the house. [227 Mich.App. 662, 665-666, 577 N.W.2d 130 (1998).]

Plaintiff Jones, individually, and on behalf of her daughter, brought this action in Wayne Circuit Court, against the city of Detroit, Powell, Winslow, and several other Detroit police officers. She advanced various theories, alleging false imprisonment and arrest, assault and battery, and intentional infliction of emotional distress. She also claimed that the defendants, acting under color of state law and pursuant to Detroit Police Department policy, deprived plaintiff and her daughter of their federal civil rights. Finally, plaintiff alleged that the defendants violated their rights under the Michigan Constitution.

The defendants initially removed the action to the United States District Court for the Eastern District of Michigan, but the District Court remanded plaintiff's state claims to the circuit court.

The circuit court granted summary judgment for the city of Detroit on all plaintiff's claims, and the case proceeded to trial against the individual officers. Shortly after the trial began, plaintiff agreed to dismiss all her claims against the individual defendants except Powell and Winslow. After the close of plaintiff's proofs, the defendants moved for a directed verdict on plaintiff's constitutional claims, arguing that Michigan did not recognize a cause of action against individual officers under the Michigan Constitution. The circuit court initially took the matter under advisement, but denied the motion at the close of the defense case.

The jury returned a verdict of no cause of action with respect to defendant Winslow, and found in favor of defendant Powell on all theories except the constitutional claims.1 On those claims, the jury awarded $75,000 to plaintiff Jones, and $126,000 to her daughter.

After the trial court denied defendant Powell's motions for judgment notwithstanding the verdict or a new trial, he appealed.

II

The Court of Appeals reversed. Much of the analysis focused on our decision in Smith v. Dep't of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987), aff'd. sub nom. Will v. Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). All three judges of the Court of Appeals believed that a damages action should not be available against an individual defendant for violation of state constitutional rights. Because of the availability of alternative remedies against such defendants, the majority would have limited Smith to actions against the state, explaining:

[W]e read Smith as recognizing a narrow remedy against the state where none otherwise would have existed. Conversely, we believe that none of the concerns identified in Smith that support a damage remedy for violations of the state constitution are applicable when the party that is alleged to have violated a plaintiff's state or federal constitutional rights is a municipality or an individual municipal employee rather than the state.
In cases involving entities other than the state as a party defendant, the plaintiffs have available a number of alternative remedies. This is because municipalities, unlike states and state officials sued in an official capacity, are not protected by the Eleventh Amendment, which, of course, safeguards the state's sovereignty in our federal system of government. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Accordingly, local government units may be sued in federal or state court under § 1983. Monell [v. New York City Dep't of Social Services, 436 U.S. 658, 690, n. 54, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ]; Moore v. Detroit, 128 Mich.App. 491, 499, 340 N.W.2d 640 (1983). Relatedly, it is clear that individual government employees cannot seek immunity for their intentional torts. Blackman v. Cooper, 89 Mich.App. 639, 643, 280 N.W.2d 620 (1979).
Here, plaintiffs were free to, and did, assert claims for false arrest and imprisonment, assault and battery, intentional infliction of emotional distress, and deprivation of civil rights in violation of § 1983. Accordingly, there simply was no justification under Smith for plaintiffs here to assert state constitutional violation claims, even claims alleging an offensive custom or policy, against these municipal and individual defendants. [227 Mich.App. at 671-672, 577 N.W.2d 130.]

Despite this view, under MCR 7.215(H) the majority felt constrained by an earlier decision in Johnson v. Wayne Co., 213 Mich.App. 143, 540 N.W.2d 66 (1995), to recognize a damages cause of action against individual defendants for violation of a plaintiff's constitutional rights. Johnson and Marlin v. Detroit (After Remand), 205 Mich.App. 335, 517 N.W.2d 305 (1994), however, also held that in an action against an entity or person other than the state, the plaintiff is required to prove that the alleged constitutional violations occurred by virtue of a custom or policy of the governmental agency involved.2 The majority concluded that defendant was entitled to judgment because there was no evidence that his actions were pursuant to such a custom or policy.3

The Court of Appeals remanded the case for entry of a judgment of no cause of action. The plaintiff has filed an application for leave to appeal from that decision.

III

We agree with the Court of Appeals majority that our decision in Smith provides no support for inferring a damage remedy for a violation of the Michigan Constitution in an action against a municipality or an individual government employee. In Smith, our consideration of the issue focused on whether such a remedy should be inferred against the state, which is not subject to liability under 42 U.S.C. § 1983. The holding in Smith was set forth in a memorandum opinion summarizing the Court's conclusions. It included the following:

5) Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action.
6) A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases. [428 Mich. at 544, 410 N.W.2d 749 (emphasis added).]

Of the several separate opinions, the one that extensively considered the question was that of Justice Boyle. She noted the United States Supreme Court's recognition of a damage remedy in Bivens v. Six Unknown Named Federal Narcotics Bureau Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and explained:

We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are...

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