Hardrick v. City of Detroit

• Decision Date: 22 November 2017
• Docket Number: Nos. 16-2704/17-2077,s. 16-2704/17-2077
• Parties: Floyd Allen HARDRICK, Jr.; Bianca Peterson; Theresa Robinson ; Rochelle Munson-Griffin; Frederick Douglas Weems; Rousia May; Thomasina McConnell; Veronica Seward; Christie Nelson; Alicia Kathleen Napier; Stephen Shackelford; Kenneth D. Savage; Myrtle Rice; Joseph A. Link, II, Plaintiffs-Appellants (16–2704), Plaintiffs-Appellees (17–2077), v. CITY OF DETROIT, MICHIGAN; Harry Ward, Defendants-Appellees (16–2704), Defendants-Appellants (17–2077).
• Court: U.S. Court of Appeals — Sixth Circuit

876 F.3d 238

Floyd Allen HARDRICK, Jr.; Bianca Peterson; Theresa Robinson ; Rochelle Munson-Griffin; Frederick Douglas Weems; Rousia May; Thomasina McConnell; Veronica Seward; Christie Nelson; Alicia Kathleen Napier; Stephen Shackelford; Kenneth D. Savage; Myrtle Rice; Joseph A. Link, II, Plaintiffs-Appellants (16–2704), Plaintiffs-Appellees (17–2077),

v.CITY OF DETROIT, MICHIGAN; Harry Ward, Defendants-Appellees (16–2704), Defendants-Appellants (17–2077).

Nos. 16-2704/17-2077

United States Court of Appeals, Sixth Circuit.

Argued: October 5, 2017

Decided and Filed: November 22, 2017

ARGUED: Stephen T. McKenney, NEUMAN ANDERSON GRIECO & MCKENNEY, P.C., Birmingham, Michigan, for Appellants in 16–2704 and Appellees in 17–2077. James P. Allen, Sr., ALLEN BROTHERS, Detroit, Michigan, for Appellees in 16–2704 and Appellants in 17–2077. ON BRIEF: Stephen T. McKenney, Jennifer M. Grieco, NEUMAN ANDERSON GRIECO & MCKENNEY, P.C., Birmingham, Michigan, for Appellants in 16–2704 and Appellees in 17–2077. James P. Allen, Sr., ALLEN BROTHERS, Detroit, Michigan, for Appellees in 16–2704. Neil B. Pioch, ALLEN BROTHERS, Detroit, Michigan, for Apellants in 17–2077.

Before: SUTTON, DONALD, and THAPAR, Circuit Judges.

SUTTON, Circuit Judge.

Dog bites dog. So begins this federal case about searches and seizures allegedly gone awry, if not the newspaper story about the dispute. Detroit has a stray-dog problem. As many as 50,000 of them roam the city's streets and abandoned homes, sometimes in packs. One group in a position to appreciate the seriousness of the problem, the United States Postal Service, ranked Detroit sixth in its "Annual Dog Attack City Rankings" in 2016.

The Detroit City Council sought to address the problem by enacting an ordinance that tightened the regulation of animals within City limits. The law imposed licensing and vaccination

requirements on owners, sought to prevent the spread of rabies, and targeted "dangerous" or "vicious" animals. It also empowered law enforcement to enter the homes and yards of pet owners if probable cause existed that they (or their dogs) had violated the regulations. An assortment of dog seizures under the ordinance by officers of Detroit Animal Control, an agency of the City, prompted the dispute. Some of the seizures arose from dog attacks on other dogs, some from attacks on people, some from reports of dogs menacing the neighborhood, some from rabies concerns, some from neglected dogs, and some from unlicensed dogs.

In response to these seizures, fourteen individuals, the owners collectively of twenty-three dogs (18 Pit Bulls, 3 Presa Canarios, 1 German Shephard, 1 Boxer), filed this § 1983 action, making three essential claims against the City and the Director of Detroit Animal Control. The first: One part of the 2004 Detroit ordinance violated the Fourth Amendment by permitting officers to make warrantless searches of houses and yards to determine if the owners were complying with the City's dog-licensing rules and related regulations. The second: The City had a policy of unreasonably seizing dogs in violation of the Fourth Amendment. The third: The City had a policy of depriving owners of their pets without due process in violation of the Fourteenth Amendment. The individuals did not sue any of the individual officers who conducted the seizures.

The district court granted the individuals the requested relief—an injunction—with respect to the warrantless search-and-seizure claim, and the defendants have not appealed that ruling. The district court granted the defendants judgment as a matter of law as to the other claims because the plaintiffs could not show any constitutional violations, and the individuals appealed both rulings. Because most of the plaintiffs cannot show that a Detroit policy or custom directly caused the alleged search-and-seizure violations, and because all of the plaintiffs cannot show a cognizable due-process violation, we affirm in large part and reverse in small part.

I.

In 2004, the Detroit City Council enacted an ordinance to address its stray-dog problem. Entitled "Animal Control, Regulation, and Care," the ordinance covers the "care, control, regulation, and disposition" of animals in Detroit. Detroit City Code § 6–1–2(a). The law allows animal control officers to capture and impound stray dogs and other animals owned in violation of the provisions and to euthanize them under some circumstances. See id. §§ 6–1–5(a), 6–1–6(d), 6–1–8(e), 6–2–1(c), 6–2–7(a), 6–3–8. It defines strays to include "any animal running loose" and makes it unlawful for anyone to refuse to surrender an animal that has attacked or bitten a person or other animal. Id. §§ 6–1–1, 6–1–6(e). It imposes dog licensing and vaccination

duties on owners and increases oversight of the city's animal shelter. See id. §§ 6–1–7(a), 6–2–1(a), 6–3–1, 6–3–3. And it allows officers to enter "any ... real property within the City for the purpose of capturing, collecting, or restraining any animal," whether they have a warrant or not. Id. § 6–1–2(e). A violation of the ordinance amounts to a misdemeanor and carries a maximum fine of $500 and up to 90 days in jail. Id. § 6–1–12(c).

For ten years, the ordinance apparently did not cause any problems. But in 2014 and 2015, officers of the Detroit Animal Control seized each of the plaintiff's dogs, prompting this dispute. The grounds for the seizures varied. The officers seized the dogs of five owners because the dogs were running loose off of the owners' property. They seized the dogs of seven owners because the dogs attacked a person or other animal. And they seized the dogs of two owners during an eviction.

The officers took the dogs to the City's animal shelter. They issued citations to some of the owners and told most of them that they could get their pets back after paying a fine. The length and circumstances of each dog's stay varied. The City held May's dogs for two days, but it held Link's dog for nine months. Four of the plaintiffs lost their dogs because they died during their stay at the shelter. Five plaintiffs lost their dogs when they returned home sick and died shortly after their stay. Five of the plaintiffs' dogs are still living.

The fourteen affected individuals filed this § 1983 lawsuit to enjoin enforcement of § 6–1–2(e) because it authorized warrantless searches and seizures of their property. They also sought damages from the City (though not the individual officers) for violations of their Fourth Amendment right to be free from unreasonable searches and seizures and their Fourteenth Amendment right to procedural due process. See Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Although the plaintiffs initially sued the City of Detroit, Detroit Police Department, Detroit Animal Control, and Animal Control Director Harry Ward, they later agreed to drop both agencies, leaving the City and Director Ward as the only defendants.

The district court enjoined § 6–1–2(e) as unconstitutional and awarded attorney's fees to plaintiffs' counsel as a result. It entered summary judgment against the plaintiffs with respect to their Monell damages claims because they could not show violations of the Fourth or Fourteenth Amendments.

The individuals appeal the dismissal of their Monell claims, and the City and Director Ward appeal the fee award. The City and Director Ward do not challenge the injunction.

II.

A few ground rules are in order. To prevail on their § 1983 Monell claims against the City and Director Ward under the Fourth and Fourteenth Amendments, the plaintiffs must show (1) that they suffered a constitutional violation and (2) that a municipal policy or custom directly caused the violation. Monell , 436 U.S. at 690–92, 98 S.Ct. 2018. The question at the summary judgment phase of a case is whether the plaintiffs have produced sufficient evidence for a reasonable jury to find in their favor. We look at each question with fresh eyes and draw all reasonable inferences in the plaintiffs' favor. Ward v. Polite , 667 F.3d 727, 730 (6th Cir. 2012).

A.

Did the plaintiffs forfeit their Fourth Amendment Monell challenge? A threshold question is whether the plaintiffs have argued too little with respect to this claim. To prevail on their Monell claim, as just noted, they had to show both a constitutional violation and a municipal policy that directly caused the violation. The district court rejected this claim on the ground that no constitutional violations occurred.

In their opening brief, the plaintiffs challenged only that ruling without arguing that a municipal policy caused any of the alleged violations. Generally speaking, that does not suffice. Appellate courts "review[ ] judgments, not opinions." Texas v. Hopwood , 518 U.S. 1033, 1034, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996). A ruling by us that the plaintiffs have shown a constitutional violation, unaccompanied by a ruling with respect to any municipal policy, would not suffice to alter the judgment.

When the City and Director Ward raised this point in their appellee brief, the plaintiffs used their reply brief to respond—and to argue about several policies or customs that could have caused the violations. That usually is too little too late. And that usually is unfair to boot, as the delay deprives the appellee of a chance to offer a response in the normal sequence. Even so, we will consider the issue here, as the parties briefed the issue below and for the most part have had a chance to brief it here. Take note, however: That is a function of grace, not entitlement.

What is the relevant policy? Plaintiffs offer several policies or customs that could have caused the alleged violations. One potential policy is the set of guidelines that Director Ward issued for the department in addressing Detroit's stray-dog problem. But the plaintiffs do not show that any of the guidelines violate the Fourth Amendment, as opposed to, say, state law.

Another possibility, say the...