Johnson v. VanderKooi

• Decision Date: 22 July 2022
• Docket Number: Docket No. 160958, Docket No. 160959,Calendar No. 3
• Parties: Denishio JOHNSON, Plaintiff-Appellant, v. Curtis VANDERKOOI, Elliott Bargas, and City of Grand Rapids, Defendants-Appellees. Keyon Harrison, Plaintiff-Appellant, v. Curtis VanderKooi and City of Grand Rapids, Defendants-Appellees.
• Court: Michigan Supreme Court

509 Mich. 524

983 N.W.2d 779

Denishio JOHNSON, Plaintiff-Appellant,

v.Curtis VANDERKOOI, Elliott Bargas, and City of Grand Rapids, Defendants-Appellees.

Keyon Harrison, Plaintiff-Appellant,

v.Curtis VanderKooi and City of Grand Rapids, Defendants-Appellees.

Docket No. 160958

Docket No. 160959

Calendar No. 3

Supreme Court of Michigan.

Argued November 9, 2021

Decided July 22, 2022

The American Civil Liberties Union Fund of Michigan (by Daniel S. Korobkin, Edward R. Becker, Margaret Curtiss Hannon, David A. Moran, Detroit, and Miriam J. Aukerman) for Denishio Johnson and Keyon Harrison.

Elizabeth J. Fossel, Sarah J. Hartman, and Andrew J. Lukas for Curtis VanderKooi, Elliot Bargas, and the city of Grand Rapids.

Jones Day, Detroit (by Amanda K. Rice, Kurt A. Johnson, Eric A. Nicholson, and Shelbie M. Rose ) for the Cato Institute and the Mackinac Center for Public Policy, amicus curiae.

Eli Savit, Victoria Burton-Harris, Christina Hines, and Anthony Hernandez for the Prosecuting Attorneys of Washtenaw County, amicus curiae.

Dykema Gossett PLLC (by Harold D. Pope, Detroit, Lauren E. Fitzsimons, Lansing, and Madison Laskowski ) for the Innocence Network, amicus curiae.

Mahogane D. Reed and The Lamar Law Firm, PLLC (by Janey J. Lamar) for the NAACP Legal Defense & Educational Fund, Inc., amicus curiae.

BEFORE THE ENTIRE BENCH

Bernstein, J.

This is the second time these consolidated cases have come before us. Previously, we considered whether a decades-long procedure used by the Grand Rapids Police Department (the GRPD) was a policy or a custom attributable to the city of Grand Rapids (the City). We held that it was.

We now consider the constitutionality of the GRPD's policy of photographing and fingerprinting individuals stopped without probable cause, referred to as the "photograph and print" (P&P) procedure. In considering the fingerprint component of the P&P procedure, we hold that the P&P procedure is unconstitutional.¹ Fingerprinting an individual without probable cause, a warrant, or an applicable warrant exception violates an individual's Fourth Amendment rights. Accordingly, we reverse the judgment of the Court of Appeals and remand these cases for further proceedings that are consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The underlying facts of these consolidated cases have not changed since they were last before us. We previously summarized the relevant facts as follows:

The P&Ps giving rise to these lawsuits took place during two separate incidents. At the time of the incidents, each GRPD patrol officer was assigned as a part of their standard equipment a camera, a fingerprinting kit, and GRPD "print cards" for storing an individual's copied fingerprints. Generally speaking, a P&P involved an officer's use of this equipment to take a person's photograph and fingerprints whenever an officer deemed the P&P necessary given the facts and circumstances. After a P&P was completed, the photographs were uploaded to a digital log. Completed print cards were collected and submitted to the Latent Print Unit. Latent print examiners then checked all the submitted fingerprints against the Kent County Correctional Facility database and the Automated Fingerprint Identification System. After being processed, the cards were filed and stored in a box according to their respective year.

The first incident giving rise to these lawsuits involved the field interrogation of plaintiff Denishio Johnson. On August 15, 2011, the GRPD received a tip that a young black male, later identified as Johnson, had been observed walking through an athletic club's parking lot and peering into vehicles. Officer Elliott Bargas responded to the tip and initiated contact with Johnson. Johnson, who had no identification, told Bargas that he was 15 years old, that he lived nearby, and that he used the parking lot as a shortcut. Bargas was skeptical of Johnson's story, and being aware of several prior thefts in and near the parking lot, he decided to perform a P&P to see if any witnesses or evidence would tie Johnson to those crimes. After Johnson's mother arrived and verified his name and age, Johnson was released. At some point during this process, Captain Curtis VanderKooi arrived and approved Bargas's actions. Johnson was never charged with a crime.

The second event occurred on May 31, 2012, after VanderKooi observed Keyon Harrison, a young black male, walk up to another boy and hand him what VanderKooi believed was a large model train engine. Suspicious of the hand-off, VanderKooi followed Harrison to a park. After initiating contact, VanderKooi identified himself and questioned Harrison. Harrison, who had no identification, told VanderKooi that he had been returning the train engine, which he had used for a school project. VanderKooi, still suspicious, radioed in a request for another officer to come take Harrison's photograph. Sergeant Stephen LaBrecque arrived a short time later and performed a P&P on Harrison, despite being asked to take only a photograph. Harrison was released after his story was confirmed, and he was never charged with a crime.

Johnson and Harrison subsequently filed separate lawsuits in the Kent Circuit Court, and the cases were assigned to the same judge. Plaintiffs argued, in part, that the officers and the City were liable pursuant to 42 USC 1983 for violating plaintiffs’ Fourth and Fifth Amendment rights when the officers performed P&Ps without probable cause, lawful authority, or lawful consent. Both plaintiffs also initially claimed that race was a factor in the officers’ decisions to perform P&Ps, though Johnson later dropped that claim.

In two separate opinions, the trial court granted summary disposition in favor of the City pursuant to MCR 2.116(C)(10) and in favor of the officers pursuant to MCR 2.116(C)(7), (C)(10), and (I)(2). Plaintiffs individually appealed by right in the Court of Appeals. In two separate opinions relying on the same legal analysis, the Court of Appeals affirmed the trial court's judgments regarding plaintiffs’ municipal-liability claims. Specifically, the Court of Appeals held that the City could not be held liable because plaintiffs did not demonstrate that any of the alleged constitutional violations resulted from a municipal policy or a custom so persistent and widespread as to practically have the force of law. [ Johnson v. VanderKooi , 319 Mich App 589, 626-628, 903 N.W.2d 843 (2017).] The Court of Appeals did not decide whether the P&Ps actually violated either plaintiff's Fourth Amendment rights.

Plaintiffs filed a joint application for leave to appeal in this Court, challenging the Court of Appeals’ ruling on the City's liability under 42 USC 1983. They argued that the record demonstrated that the City had a policy or custom of performing P&Ps without probable cause during investigatory stops pursuant to Terry v. Ohio , 392 U.S. 1, 22, 88 S Ct 1868, 20 L Ed 2d 889 (1968), which may be based on reasonable suspicion of criminal conduct, and that execution of that policy or custom violated their Fourth Amendment rights. We scheduled oral argument on the application and instructed the parties to address "whether any alleged violation of the plaintiffs’ constitutional rights [was] the result of a policy or custom instituted or executed by the defendant City of Grand Rapids." Johnson v. VanderKooi , 501 Mich. 954, 954-955, 905 N.W.2d 233 (2018). [ Johnson v. VanderKooi , 502 Mich. 751, 757-761, 918 N.W.2d 785 (2018).]

Following oral argument, we reversed the judgment of the Court of Appeals in part, holding that a policy or custom that authorizes police officers to engage in specific conduct may form the basis for municipal liability. We held that genuine issues of material fact existed as to both whether the custom had become an official policy and whether this custom had caused the alleged constitutional violations.

Therefore, the Court of Appeals erred by affirming the trial court's order granting summary disposition based on the Court's conclusion that the alleged constitutional violations were not the result of a policy or custom of the City. We express no opinion with regard to whether plaintiffs’ Fourth Amendment rights were violated. Therefore, we reverse Part III of the Court of Appeals’ opinion in both cases. We remand these cases to the Court of Appeals to determine whether the P&Ps at issue here violated plaintiffs’ Fourth Amendment right to be free from unreasonable searches and seizures. [ Johnson , 502 Mich. at 781, 918 N.W.2d 785.]

On remand, the Court of Appeals considered "whether the specific conduct authorized by the City's policy or custom, i.e., the conducting of P&Ps on the basis of reasonable suspicion (rather than probable cause), resulted in a constitutional violation." Johnson v. VanderKooi (On Remand) , 330 Mich App 506, 517, 948 N.W.2d 650 (2019). The Court of Appeals held that the P&Ps did not infringe on plaintiffs’ Fourth Amendment rights, having concluded that taking neither a person's fingerprints nor their photograph was a search under the Fourth Amendment. The Court of Appeals therefore concluded that plaintiffs failed to demonstrate that the City's P&P policy was unconstitutional.

Plaintiffs again filed a joint application for leave to appeal in this Court, continuing to argue that the P&P policy violated their Fourth Amendment rights. We granted leave to appeal, directing the parties to address:

(1) whether fingerprinting constitutes a search for Fourth Amendment purposes; (2) if it does, whether fingerprinting based on no more than a reasonable suspicion of criminal activity, as authorized by the Grand Rapids Police Department's "photograph and print" procedures, is unreasonable under the Fourth Amendment; and (3) whether fingerprinting exceeds the scope of a permissible seizure pursuant to Terry v Ohio , 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968). [ Johnson v. VanderKooi , 507 Mich. 880, 880, 954 N.W.2d 524 (2021).]

II. STANDARD...