Fineout v. Kostanko, 080219 FED6, 17-1910

Docket Nº:17-1910
Opinion Judge:PER CURIAM.
Party Name:NATASHA FINEOUT; JESSICA WRIGHT; LANCE TYLER, Plaintiffs-Appellants, v. DEL KOSTANKO; JEFFREY WINARSKI; RYAN KELLOM; RACHEL BAHL; JASON PUNG; BETH LARABEE; MELISSA HARRIS, identified on initiating document as Unknown Party, Defendants-Appellees.
Judge Panel:BEFORE: COLE, Chief Judge; WHITE and BUSH, Circuit Judges. HELENE N. WHITE, Circuit Judge, concurring in part and in the judgment.
Case Date:August 02, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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NATASHA FINEOUT; JESSICA WRIGHT; LANCE TYLER, Plaintiffs-Appellants,

v.

DEL KOSTANKO; JEFFREY WINARSKI; RYAN KELLOM; RACHEL BAHL; JASON PUNG; BETH LARABEE; MELISSA HARRIS, identified on initiating document as Unknown Party, Defendants-Appellees.

No. 17-1910

United States Court of Appeals, Sixth Circuit

August 2, 2019

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: COLE, Chief Judge; WHITE and BUSH, Circuit Judges.

PER CURIAM.

Plaintiffs appeal the district court's grant of summary judgment to defendants on all claims. For the reasons that follow, we affirm.

I.

Background

This case arises from the police's forcible entry and search of a house located at 1223 South Holmes Street in Lansing, Michigan (the residence), and their arrest and the subsequent prosecution of the plaintiff residents. Officers from the Lansing Police Department arrived at the residence in response to a 9-1-1 call from a neighbor regarding possible child abuse. After being incorrectly informed by dispatch that the residence had been "red tagged" for building code violations, the officers forced entry into the residence and arrested plaintiffs. Plaintiffs advance claims under state and federal law against the police officers and the 9-1-1 supervisor who provided the erroneous red-tag information.

A. The Parties

Plaintiffs Lance Tyler, Natasha Fineout, and Jessica Wright lived together at the residence. Tyler was purchasing the property under a land contract; Wright was Tyler's girlfriend; and Fineout is Wright's sister. Tyler's child and Fineout's three children also lived at the property. The youngest was approximately one year old and the oldest was about four years old.

Defendant Melissa Harris is a 9-1-1 dispatch supervisor and, at the relevant time, was responsible for confirming the red-tag status of properties in Lansing in response to police officers' inquiries. The remaining defendants-Del Kostanko, Jeffrey Winarski, Ryan Kellom, Rachel Bahl, Jason Pung, and Beth Larabee (the police defendants)-are officers and sergeants in the Lansing Police Department.

B. Lansing's "Red-Tag" Procedures

The City of Lansing "red tags" properties that are legally uninhabitable due to code violations. This process includes physically applying a red tag to the property and registering the red-tagged status in a central computer database. The police defendants testified that it was common for people living illegally in red-tagged properties to remove the physical tag, and it was therefore standard procedure to inquire with dispatch whether a property had been red-tagged.

Occupying a red-tagged property constitutes misdemeanor trespassing. See Lansing Code of Ordinances § 1460.01(h)-(m). In relevant part, the Lansing Code of Ordinances (the Code) states that any red-tagged building "shall be vacated" and that "[n]o person shall occupy any such structure or allow any domestic animal to occupy any such structure." Id. § 1460.01(m). In a section of the Code intended to "promote the public health, safety and welfare of residents of the City and to provide for the removal and abatement of unhealthy, noxious or dangerous substances, structures and conditions, at private expense," the Code authorizes any "Enforcement Official . . . to inspect occupied or vacant land or premises to ascertain the existence of nuisances on such land or premises."1 Id. §§ 655.01, 655.05. The Code further states that, "[i]f the owner or occupant of the land or premises refuses or denies access for such purpose, the Enforcement Official shall have recourse to every remedy provided by law to secure entry. If the condition that is believed to exist creates an emergency situation in that it imminently endangers human life or health no search warrant shall be required." Id.

The code speaks only of the grounds on which an official may access a property for the purposes of inspection; it does not address whether officials have the authority to enter occupied houses that have already been red-tagged, and defendants do not argue that the Code explicitly provides such authority. The record establishes, however, that during the relevant time period, Lansing police commonly entered red-tagged properties without a warrant when they suspected that someone was living inside.

C. Ingham County Central Dispatch Operation

On June 27, 2012, Ingham County consolidated dispatch operations for all police departments in the county into a county-level Central Dispatch Operation (CDO). The CDO assumed responsibility for responding to police officers' inquiries concerning the red-tag status of Lansing properties. When CDO received such an inquiry, the dispatcher relayed the request to the 9-1-1 supervisor, who checked the Lansing Code Compliance database to determine the status of the property. The supervisor then communicated the status of the property to the dispatcher, who provided that information to the requesting officer. Supervisors did not communicate directly with officers requesting red-tag information.

Defendant Melissa Harris was hired in 2007 as a Lansing 9-1-1 Dispatch Operator. Harris remained in that position after dispatch services were consolidated and was subsequently promoted to 9-1-1 Supervisor. At some point after her promotion, Harris received training on how to check a property's red-tag status, but there is no indication in the record as to Harris's knowledge of the circumstances under which officers would request a red-tag status check. Harris testified that the CDO received "at least one" request per day to check the red-tag status of a building. Harris handled her proportional share of the inquiries.

D. History of the Residence

On July 28, 2011, the Lansing Office of Code Compliance red-tagged the residence, rendering it legally uninhabitable. A notice sent to the owner stated that the residence had broken windows, deteriorated roof covering and foundation waterproofing, damaged roof framing, damaged gypsum board in interior walls and ceilings, and missing paint and protective siding. On August 9, 2011, a new owner purchased the property by land contract and made various repairs. The Office of Code Compliance removed the red-tag status after another inspection on November 3, 2011. Tyler entered into a land contract for the residence on May 3, 2013.

E. Events of June 20, 2013

On June 20, 2013, the CDO received a 9-1-1 call from a neighbor of the residence. The caller stated that she had heard the occupants of the residence "scream[ing] profanities and . . . hitting their children." (R. 83-1, PID 521.) The caller further stated that she had heard the noises for the "last hour and a half that I've been home" and noted that her "neighbors keep telling me this has been . . . an ongoing thing all day." (Id.)

Bahl was the first officer to arrive at the residence; Kellom, Winarski, Larabee, Pung, and Kostanko all arrived shortly after. When Bahl arrived, she observed that the exterior of the residence was in disrepair and asked dispatch whether it had been red-tagged. Sergeant Kostanko corroborated Bahl's observations of the residence, but admitted that the officers did not observe any conditions that would render the residence uninhabitable. Kostanko also admitted that the officers did not "witness[] any child abuse" at the residence and did not hear any of the loud noises described in the 9-1-1 call. (R. 83-2, PID 670.)

The 9-1-1 dispatcher relayed Bahl's red-tag inquiry to Harris, who informed the dispatcher that the residence was red-tagged. The dispatcher relayed this information to Bahl. Bahl asked the dispatcher "to double-check that, please, because it's occupied right now." (Id. at PID 652.) The dispatcher responded "10-4, the Center supervisor just advised that it is red-tagged. That house is red-tagged." (Id.) It does not appear that the dispatcher asked Harris to check a second time. The property was not red-tagged as of June 20, 2013. Harris could provide no explanation and the record is silent regarding the cause of her erroneous answer.2

Bahl testified that she also requested a check on the license plates of two cars present at the residence, which revealed that the cars belonged to plaintiffs Wright and Fineout and that Fineout was the subject of an outstanding arrest warrant for unpaid child support. Bahl also testified that "one of the vehicles [came] back registered to" the residence, but she was unsure whether it was Fineout's vehicle. (Id. at PID 661.) Although Bahl testified that she was "fairly certain" that she requested the check over the radio-rather than via her in-car computer-the radio transcript does not reflect any such request, and it is therefore unclear exactly when the officers...

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