Hightower v. City of Grand Rapids

• Decision Date: 17 October 2018
• Docket Number: No. 1:13-cv-469,1:13-cv-469
• Citation: 407 F.Supp.3d 707
• Parties: Tyrone HIGHTOWER, et al., Plaintiffs, v. CITY OF GRAND RAPIDS, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

407 F.Supp.3d 707

Tyrone HIGHTOWER, et al., Plaintiffs,

v.CITY OF GRAND RAPIDS, et al., Defendants.

No. 1:13-cv-469

United States District Court, W.D. Michigan, Southern Division.

Signed October 17, 2018

Bryan J. Waldman, Sinas Dramis Brake Boughton & McIntyre PC, Lansing, MI, Daniel S. Korobkin, Michael J. Steinberg, ACLU Fund of Michigan, Detroit, MI, Jason Daniel Williamson, American Civil Liberties Union, New York, NY, Miriam J. Aukerman, ACLU of Michigan, Julia Anne Kelly, Grand Rapids, MI, for Plaintiffs.

Anita L. Hitchcock, Elizabeth J. Fossel, Elliot J. Gruszka, Kristen Lee Rewa, Patrick James Lannen, Grand Rapids, City of (City Attorney), Grand Rapids, MI, for Defendants.

OPINION

Paul L. Maloney, United States District Judge

Following a city trespassing ordinance, police officers in the City of Grand Rapids have arrested individuals who are in the parking lot of an area business when an officer concluded that the individual was not on the property for the purpose of patronizing the business. In March 2017, a panel of the Michigan Court of Appeals rejected the City's interpretation of the ordinance that would authorize such an arrest. Today, this Court reaches the same conclusion.

The City of Grand Rapids enacted and enforces a trespass ordinance. The City solicits, from area businesses, what the parties refer to as "No Trespass Letters" or NTLs. By completing the blank form and returning the form to the Grand Rapids Police Department, business owners indicate their intent to prosecute trespassers. Plaintiffs are four citizens that were arrested without a warrant and were issued a citation for trespassing. In all four instances, no one from the business had complained about the specific individual before he was arrested. And, in all four instances, the officer who issued the citation relied on an NTL to conclude that the owner would be willing to prosecute the suspect for trespassing. In one instance, the individual who received the citation had recently patronized the business on whose property he was allegedly trespassing. In another instance, the individual who was cited for trespassing merely drove across the business's portion of a parking lot shared with the City.

Plaintiffs complain that their arrests violated the Fourth Amendment and the City's policy is unconstitutional. In the second amended complaint (ECF No. 36), the controlling pleading, Plaintiffs allege two counts: (1) violation of the Fourth Amendment and (2) violation of the void-for-vagueness doctrine of the Due Process Clause of the Fourteenth Amendment. Plaintiffs seek a declaratory judgment, injunctive relief, and judgments for damages against the arresting officers and against the City.

The parties have filed cross motions for summary judgment. Plaintiffs collectively filed a single motion for summary judgment. (ECF No. 149.) Defendants filed five separate motions for summary judgment (ECF Nos. 161-65), and a single brief in support (ECF No. 166). The Court has had the benefit of oral argument.

As part of the lawsuit, the Court must determine what the City's ordinance prohibits. The parties do not agree about what must occur before an individual becomes a trespasser or a suspected trespasser. Does an individual violate the ordinance by his or her presence on business property without an intent to patronize the business?

Must the individual be told to leave the property before an ordinance violation occurs?

In their motion for summary judgment, Plaintiffs advance three general positions. First, Plaintiffs argue the NTL policy is unconstitutionally vague. Second, Plaintiffs argue they are entitled to summary judgment against the City and the Police Chief (sued in his official capacity) because the City has a policy of using NTLs to make arrests, including the arrest of each Plaintiff. Finally, Plaintiffs request summary judgment against each defendant officer for a violation of Plaintiffs' clearly established constitutional rights.

For their motion, Defendants advance two positions. First, the individual defendant officers argue they are entitled to qualified immunity. Second, the municipal defendants argue they are entitled to summary judgment for any Monell claim.

To resolve the motions, the Court begins with a brief discussion of the ordinance before addressing Plaintiffs' vagueness argument. Second, the Court identifies the elements of a trespass and then outlines the circumstances leading to each arrest to determine whether probable cause existed. The Court then, considers the Defendant Officers' qualified immunity defenses on a plaintiff-by-plaintiff basis. Finally, the Court addresses Plaintiffs' Monell claim and resolves the City's liability.

I.

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a) and (c) ; Payne v. Novartis Pharms. Corp. , 767 F.3d 526, 530 (6th Cir. 2014). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party's case. Fed. R. Civ. P. 56(c)(1) ; Hollis v. Chestnut Bend Homeowners Ass'n , 760 F.3d 531, 543 (6th Cir. 2014). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Matsushita Elec. Indust. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Once the moving party has carried its burden, the nonmoving party must set forth specific facts in the record showing there is a genuine issue for trial. Matsushita , 475 U.S. at 574, 106 S.Ct. 1348 ; Jakubowski v. Christ Hosp., Inc. , 627 F.3d 195, 200 (6th Cir. 2010) ("After the moving party has met its burden, the burden shifts to the nonmoving party, who must present some ‘specific facts showing that there is a genuine issue for trial.’ ") (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). In resolving a motion for summary judgment, the court does not weigh the evidence and determine the truth of the matter; the court determines only if there exists a genuine issue for trial. Tolan v. Cotton , 572 U.S. 650, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ). The question is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251-252, 106 S.Ct. 2505.

II.

A.

The City of Grand Rapids enacted a trespass ordinance in 1976. (ECF No. 169-5.) The ordinance is found in the section for property offenses and provides that no person shall "[t]respass upon the premises of another or unlawfully remain upon the premises of another to the annoyance or disturbance of the lawful occupants." Grand Rapids, MI. Code Title IX, Chapter 152, Article 1, § 9.133(1).

For more than twenty years, the Grand Rapids Police Department (GRPD) has made available, in some form, No Trespass Letters. The NTLs are standardized, blank forms that may be completed by property owners or occupants and submitted to the GRPD. (Compl. ¶ 33 PageID.527; ECF No. 36-2 NTL PageID564-66.) To be effective, NTLs must be submitted each year, or when a tenant changes or when the ownership of the property changes. (Compl. ¶ 41 PageID.528; NTL PageID.566.) Between January 1, 2009, and May 15, 2012, more than 2000 NTLs were returned to the GRPD. (Compl. ¶ 45 PageID.528.) Of those, over 800 were submitted by a business.¹ (Id. ) Many of the businesses that submitted NTLs are open the public and include retail stores, supermarkets, gas stations, and restaurants. (Id. ¶ 46 PageID.528.)

Over the years, the City has revised the NTLs. (Compl. ¶ 34 PageID.527.) When Plaintiffs were arrested, the NTLs were formatted as a letter to the Detective Unit in the GRPD.² (NTL PageID.564.) The letter states that it "serves notice to your office that the occupant (s) and/or owners of this address will prosecute all trespassers." (Id. ) The form identifies information that needs to be provided, including the name of the business and the name of the owner of the property. (Id. ) The instructions on the third page of the letter state that the "attached letter is intended to assist in keeping trespassers off your property." (Id. PageID.566.) Between 2011 and 2013, officers were involved in incidences where approximately 800 individuals were stopped for allegedly trespassing at a business with an NTL. (ECF No. 154-3 Baumgartner Addendum PageID.2304, 2310-11.) Officers initiated approximately 380 of those stops, as opposed to a citizen complaint. (Id. PageID.2311.)

B.

Plaintiffs challenge the City's "NTL Policy" as unconstitutionally vague. A careful reading of the briefs establishes that Plaintiffs are challenging the GRPD's reliance on NTLs, not the trespass ordinance itself. Plaintiffs complain that the "City's NTL program" gives unfettered discretion to the officers to determine who is or is not trespassing, which depends on whether the business has submitted an NTL. (ECF No. 150 Pl. Br. at 33 PageID.1820.) Plaintiffs also assert a lack of notice, arguing that the public does not know which businesses have submitted NTLs. (Id. at 37 PageID.1824.) In their response to Defendants' motion for summary judgment, Plaintiffs summarize their vagueness argument. "Plaintiffs' vagueness challenge is not to the language of the ordinance per se (though it could be clearer), nor to the language of the letter, but rather to the GRPD's policy of using generalized NTLs to arrest individuals for trespassing on commercial property." (ECF No. 182 Pl. Resp. at 16 PageID.3641.)

The void-for-vagueness doctrine finds...