Hensley v. Reporon, Case No. 09–cv–12751.
| Decision Date | 14 January 2011 |
| Docket Number | Case No. 09–cv–12751. |
| Citation | 763 F.Supp.2d 876 |
| Parties | Sheila Jean HENSLEY, McClellan Hensley, Sr., and McClellan Hensley, Jr., Plaintiffs,v.Ronald GASSMAN d/b/a/ Reporon, Kevin Scott, Brian Gilbert, Jr., and Howie Hanft, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
J. Nicholas Bostic, J. Nicholas Bostic Assoc., Okemos, MI, for Plaintiffs.
On July 14, 2009, Plaintiffs Sheila Hensley (“Sheila”), McClellan Hensley, Sr. (“McClellan Sr.”), and McClellan Hensley Jr. (“McClellan Jr.”) (collectively “Plaintiffs”) filed a complaint [Dkt. # 1] against Ronald Gassman, both individually and d/b/a Reporon (“Gassman”), Kevin Scott (“Scott”), Brian Gilbert, Jr. (“Gilbert”) (together with Scott, “Deputy Defendants”), and Howie Hanft (“Hanft”). The case arises from Gassman's request that the Deputy Defendants act as a “civil stand-by” while Gassman performed an ill fated vehicle repossession. Plaintiffs' complaint alleges multiple violations of 42 U.S.C. § 1983 including: a conspiracy to deprive them of their constitutional rights by the unlawful taking of the their property; an unlawful seizure of the family's Buick LaSabre; and failure to train and supervise by Sheriff Hanft because he did not provide or require sufficient training on responding to requests for oversight or assistance for vehicle repossessions.
Plaintiffs also allege a number of claims under Michigan law. Plaintiffs allege an assault and battery on Sheila because of Scott's attempt to break the car window with the butt of his weapon, Scott's subsequently breaking the car window with a hammer, and Gilbert's physically removing Sheila from the car. Plaintiffs also allege an assault and battery on McClellan Jr. based on Gassman's driving his vehicle into McClellan Jr.'s leg and an assault on McClellan Jr. resulting from Scott's pointing his weapon at McClellan Jr. Furthermore, Plaintiffs allege trespass to real property by Scott, Gilbert, and Gassman from their entering the Hensleys' property without permission after Sheila requested that Gassman, his assistant, and the officers leave. Finally, Plaintiffs allege trespass to chattels for the damage to the family's Buick during the repossession, and negligence in the wrongful repossession and subsequent breach of the peace that occurred during the repossession. Plaintiffs request both specific and exemplary damages.
Defendant Gassman filed an answer on September 21, 2009 [Dkt. # 15], and Defendants Scott, Gilbert, and Hanft (collectively, the “Officer Defendants”) filed an answer on September 24, 2009 [Dkt. # 16]. The Officer Defendants then filed a motion for summary judgment on September 2, 2010 [Dkt. # 31]. The motion contends that the Deputy Defendants did not seize the vehicle and were only present in an effort to “keep the peace.” Further, any alleged seizure could have been lawfully accomplished because Sheila used the vehicle as an instrumentality of a crime in opposing the repossession. Even if the seizure were found to be inappropriate, the Deputy Defendants argue, that they are entitled to qualified immunity because their actions were that of a reasonable officer under the circumstances. The Officer Defendants further assert that Plaintiffs cannot identify any facts to support their assertion of a federal conspiracy claim or a failure to train or supervise claim against Hanft. As to the state law claims, the Officer Defendants contend that the claims fail as a matter of law and that, alternatively, the deputies are entitled to governmental immunity. Plaintiffs filed a response on September 24, 2010 [Dkt. # 35].1 The Officer Defendants filed a reply on October 1, 2010 [Dkt. # 37].
Plaintiffs filed their own motion for summary judgment on September 4, 2010 [Dkt. # 33]. Plaintiffs contend that based on the established facts, there is an absence of a genuine issue of material fact as to whether a Fourth Amendment unlawful seizure of personal property occurred. In support of this contention, Plaintiffs emphasize that there was no warrant or probable cause, and no exception to the warrant requirement to justify seizure of the vehicle. Plaintiffs also contend that there is an absence of material fact as to whether a civil conspiracy to deprive the Plaintiffs of their Fourth Amendment rights under § 1983 occurred based on the established facts. Defendants filed a response on September 24, 2010 [Dkt. # 36]. Plaintiffs did not file a reply.
The Court held a hearing on both motions on November 9, 2010. For the reasons explained hereafter, the Court will GRANT IN PART and DENY IN PART Defendants' motion for summary judgment and GRANT IN PART and DENY IN PART Plaintiffs' motion for summary judgment.
On August 13, 2008, Deputies Scott and Gilbert were dispatched at approximately 3:15 a.m. to assist Gassman in repossessing a Buick four-door car owned by McClellan Sr. but driven by his wife, Sheila. The deputies were dispatched after Gassman, who made a profession of repossessing collateral for lenders in the Ogemaw County area, requested police presence when he sought to repossess McClellan Sr.'s Buick. Apparently, McClellan Sr. pulled a gun on Gassman during an earlier repossession.2 The Deputy Defendants, who Gassman did not request by name, met Gassman about a mile from Plaintiffs' residence and followed him to Sheila and McClellan Sr.'s residence at 2085 Beach Road, Prescott, in Ogemaw County, Michigan. Gassman represented to the Deputy Defendants that he had an order for repossession of the Buick,3 and both deputies saw corroborating paperwork in his hand but did not read the papers. McClellan Sr., a truck driver, was not present when the men arrived. However, his wife Sheila, and his adult son, McClellan Jr. were present at the home.
Upon the Deputy Defendants' and Gassman's arrival, Sheila explained to Deputy Scott that the payments had been brought current with the lender. Scott responded that if that was the case, Sheila could bring the documentation to Gassman or Burns Recovery in the morning to sort out any problems but that Gassman could take the vehicle. (Pl.s' Mot. for Summ. J. Ex. 2 at 11.) Although Sheila was not addressing Deputy Gilbert, he too heard Sheila's claim that payments were current but also did not address Sheila's objection. Sheila then entered and started the car, and instructed McClellan Jr. to go into the house and get the phone. McClellan Jr. retrieved the phone, came back outside, and observed Gassman reaching under the vehicle while on the ground next to the car. Deputy Scott instructed Sheila to unlock the doors and exit the vehicle, but she refused. Scott again instructed Sheila to exit the vehicle because after she started the car and put it into gear, he saw the car moving forward while Gassman and his assistant were next to and partially under the car. This caused the tow truck, which was hooked to the car, to move forward towards the men. At this juncture, the Deputy Defendants would later explain that they believed Sheila had committed a criminal offense by moving the car while Gassman and his assistant were at least partially underneath.
When Sheila refused to exit the vehicle, Deputy Scott unsuccessfully tried to break the car window with the butt of his handgun. Scott then instructed Gassman to pull the vehicle into the street because McClellan Jr. had gone inside the house where Scott believed weapons were present. Deputy Scott thought removing the car from the property would be the safest way to resolve the issue.4 When McClellan Jr. began walking towards the car with an object in his hands, Deputy Scott raised his weapon.5 He then advised McClellan Jr. to stay back. McClellan Jr. responded by raising his hands in the air and taking a few steps backwards. Scott then lowered his weapon. Deputy Scott only had his weapon raised long enough to tell McClellan Jr. to step back. McClellan Jr. had a cordless phone in his hand at the time, but Deputy Scott, who was approximately seventy-five to ninety feet away, was unable to see the object clearly.
As Gassman pulled the car into the road, it did not follow a straight path and hit a boat parked adjacent to the property, causing damage to the car. Once the car was in the road, Scott again ordered Sheila to exit the car, but she still did not comply. Scott then asked Gassman for a hammer, which he used to break the passenger window. Gilbert pulled Sheila from the car. She was allowed to retrieve her personal items before Gassman completed the repossession. The parties stated at oral argument that Gassman later realized his mistake in repossessing the vehicle and had another tow truck driver return the vehicle the following morning.
On August 21, 2008, a warrant request form seeking felonious assault charges was sent to the prosecutor's office, which authorized the charges. A judge signed a felony warrant on August 25, 2008, charging Sheila with two counts of assault with a dangerous weapon in violation of M.C.L. § 750.82. A preliminary hearing was held on November 25, 2008, where Sheila was represented by counsel, who cross-examined Deputy Scott, Gassman, and Wottrich. The three men testified that they believed there was probable cause for the prosecution. 6 The district court agreed that probable cause had been established and Sheila was bound over on two counts of felonious assault. The court also added a separate misdemeanor count of reckless driving based on Sheila's conduct in the driveway. In finding probable cause, the district court noted that Michigan residents have a right to protect personal property, but cannot use deadly force to do so.
Sheila pleaded no contest to both counts of felonious assault as well as a misdemeanor of attempted aggravated assault on May 19, 2010. The...
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