Gardner v. Evans, 040419 FED6, 17-1933

Docket Nº:17-1933
Opinion Judge:RALPH B. GUY, JR., CIRCUIT JUDGE.
Party Name:William Russell Gardner, et al., Plaintiffs-Appellants, v. Jason Evans, et al., Defendants-Appellees. Henry Lee Holsey, Plaintiff-Appellant, v. Aaron Wieber, et al., Defendants-Appellees.
Attorney:J. Nicholas Bostic, Lansing, Michigan, for Appellants. Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees. J. Nicholas Bostic, Lansing, Michigan, for Appellants. Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.
Judge Panel:Before: MERRITT, GUY, and MOORE, Circuit Judges.
Case Date:April 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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William Russell Gardner, et al., Plaintiffs-Appellants,

v.

Jason Evans, et al., Defendants-Appellees.

Henry Lee Holsey, Plaintiff-Appellant,

v.

Aaron Wieber, et al., Defendants-Appellees.

No. 17-1933

United States Court of Appeals, Sixth Circuit

April 4, 2019

Argued: January 17, 2019

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. Nos. 1:12-cv-00914; 1:12-cv-01338-Robert J. Jonker, Chief District Judge.

ARGUED:

J. Nicholas Bostic, Lansing, Michigan, for Appellants.

Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

ON BRIEF:

J. Nicholas Bostic, Lansing, Michigan, for Appellants.

Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

Before: MERRITT, GUY, and MOORE, Circuit Judges.

OPINION

RALPH B. GUY, JR., CIRCUIT JUDGE.

Plaintiffs are Lansing, Michigan residents whose homes were raided by police and subsequently deemed uninhabitable. Police raided the homes based upon search warrants for drugs, but once inside, they invited building code compliance officers in as well. Plaintiffs sued under 42 U.S.C. § 1983 alleging a variety of constitutional claims against the police officers, the compliance officers, and the City of Lansing. The district court granted summary judgment for defendants on all counts. We affirm in part and reverse in part.

I. BACKGROUND

A. The Raids and Arrests

Some drug raids in Lansing appear to have followed a pattern. In the course of their duties, police took notice of residences where they believed drug trafficking was occurring. Through controlled buys, confidential informants, trash pulls, and direct surveillance, police officers amassed probable cause to secure search warrants. Courts issued warrants and teams of officers soon executed them. The searches were aggressive: officers knocked in doors with rams, used flashbangs and, according to plaintiffs, left the homes in complete disarray. During or immediately following a search, a police officer would sometimes call a housing code compliance officer ("inspector") to the scene. In some instances, the inspector would soon appear and inspect the home. Reliably, the inspector would find code violations such as water heaters without inspection tags, bare electrical wiring, and non-working smoke detectors. The inspector would then declare the home unsafe for occupancy, which is often called "red tagging." When a home has been red tagged, the occupants must leave immediately and may not occupy the home until the violations have been corrected.

This pattern played out for each of the plaintiffs in this case. They resided at four different Lansing homes and over the course of eleven months each of their homes was searched and red tagged. Some of the plaintiffs were arrested, but in each case the charges were dismissed.1

B. The Lawsuits

One of the residents, Henry Holsey, filed a federal § 1983 suit against the City of Lansing, an individual police officer, and an individual inspector. The rest of the plaintiffs filed a single subsequent suit against other officers and inspectors, along with the City. Given the cases' similarities, the district court consolidated them, although the two cases remained on separate active dockets.

Following discovery, defendants filed a motion for summary judgment in each case. The district court granted summary judgment in favor of defendants on all counts, except "to the extent Defendants' Motion for Summary Judgment . . . seeks summary judgment in favor of [the Defendant inspectors] on Plaintiffs' claim that these Defendants failed to provide a constitutionally appropriate post-deprivation review process, and summary judgment in favor of the City of Lansing on Plaintiffs' claim that the City of Lansing has a policy and practice of failing to provide a constitutionally appropriate post-deprivation review process[.]"

The inspectors filed an interlocutory appeal, asserting that the district court erred in not granting them qualified immunity. Defendants then moved to stay the proceedings pending the appeal. The district court granted the stay, explaining that although there were good reasons to "keep the case moving toward the imminent trial process" it would instead exercise its discretion to stay the case principally because: [T]he Court sees relatively few issues of fact in the case, and believes a ruling from the Court of Appeals on the key legal issues will be helpful in moving the matter to conclusion, one way or the other. In particular, the Court recognizes that the individual Defendants were using city forms as part of the challenged red tag process, and so the policy and practices claim, and the qualified immunity issues are likely to raise common and potentially controlling legal issues.

C. The First Appeal

In their statement of the parties and issues before this court, the inspectors limited their appeal to a single question: "whether the individual inspectors are protected with qualified immunity from plaintiffs' due process claims?" Briefing and argument followed, and we reversed the district court's denial of qualified immunity and remanded the case. Gardner v. Evans, 811 F.3d 843, 848 (6th Cir. 2016). The district court had reasoned that one of our prior cases, Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir. 1994), had clearly established that a meaningful post-deprivation review process is constitutionally required, and "that direct, personal notice of such a process to affected individuals is also required." Gardner v. Evans, No. 1:12-cv-1338, 2015 WL 403166, at *18 (W.D. Mich. Jan. 28, 2015) (Gardner I). We held, however, that Flatford was distinguishable and concluded that "any inadequacies in the notice provided by the Inspectors would not have been apparent to a reasonable official solely upon the basis of Flatford." Gardner, 811 F.3d at 847. Accordingly, we stated: For purposes of deciding this case, we need not determine whether the red-tags provided by the Inspectors meet the constitutional notice standard that we have just outlined. Even if we assume, without deciding, that the Tenants are correct and that the red-tags were constitutionally infirm, the Tenants cannot satisfy the second prong of the qualified immunity analysis, namely, whether this constitutional notice requirement was clearly established.

Id.

D. The Remand

The contours of the remand proved contentious. Defendants asserted that the only matter properly left for the district court to decide was whether the content of the notices given to plaintiffs after their homes were red tagged were "constitutionally sufficient to satisfy post-deprivation due process." Plaintiffs conceded that this court's decision immunized the inspectors against claims about the content of the notices, but they insisted that there was still an open question as to their immunity. Plaintiffs asserted that they could still prevail on the theory that the inspectors failed to give post-deprivation notice of any kind-a theory they admittedly had not raised until that point. Given the theory's belated introduction, the district court declined to permit an amendment to the pleadings or further discovery and simply allowed plaintiffs and the City to file cross motions for summary judgment.

The plaintiffs and the City each filed motions for summary judgment. The district court granted the City's motion and denied plaintiffs'. It then entered judgment in favor of all named defendants and against all named plaintiffs, based upon both its pre-appeal and post-appeal opinions. Plaintiffs appealed.

II. DISCUSSION

A. Invalid Search Warrants

All the initial searches in this case were made pursuant to warrants. The evidence supporting each warrant varied, and we discuss each below. Our standard for reviewing them, however, is common to all.

The Fourth Amendment requires warrants to be supported by "probable cause," which we have defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion [that] there is a fair probability that evidence of a crime will be located on the premises of the proposed search." United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (internal citations and quotation marks omitted). We judge an affidavit that supports a warrant "on the totality of the circumstances, rather than line-by-line scrutiny" to ensure that the judicial officer who issued the warrant could properly consider the "veracity and basis of knowledge of persons supplying hearsay information" and properly determine that there was "a fair probability that contraband or evidence of a crime will be found in a particular place." Id. (quoting...

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