Johnson v. Vanderkooi

• Decision Date: 23 May 2017
• Docket Number: No. 330536,330536
• Citation: 903 N.W.2d 843,319 Mich.App. 589
• Parties: Denishio JOHNSON, Plaintiff–Appellant, and The American Civil Liberties Union of Michigan, Amicus Curiae, v. Curt VANDERKOOI, Elliot Bargas, and City of Grand Rapids, Defendants–Appellees.
• Court: Court of Appeal of Michigan — District of US

319 Mich.App. 589

903 N.W.2d 843

Denishio JOHNSON, Plaintiff–Appellant,andThe American Civil Liberties Union of Michigan, Amicus Curiae,

v.Curt VANDERKOOI, Elliot Bargas, and City of Grand Rapids, Defendants–Appellees.

No. 330536

Court of Appeals of Michigan.

Submitted May 2, 2017, at Grand Rapids.

Decided May 23, 2017, 9:00 a.m.

Bernard Schaefer for plaintiff.

Kristen Lee Rewa and Elliot Gruszka, Assistant City Attorneys, for defendants.

Amici Curiae: Miriam J. Aukerman, Michael J. Steinberg, Kary L. Moss, Daniel S. Korobkin, Edward R. Becker, and Margaret Curtiss Hannon for the American Civil Liberties Union of Michigan.

Before: Wilder, P.J., and Boonstra and O'Brien, JJ.

Boonstra, J.

This case arises out of a police contact between plaintiff and city of Grand Rapids Police Department (GRPD) officers, and the application of what is described as GRPD's "photograph and print" (P&P) policy. The trial court granted summary disposition in favor of defendants under MCR 2.116(C)(7) and (10). Plaintiff appeals by right. We conclude that the trial court correctly held that defendants Curt VanderKooi and Elliott Bargas were shielded by qualified immunity and were therefore entitled to summary disposition under MCR 2.116(C)(7) and that defendant city of Grand Rapids was entitled to summary disposition under MCR 2.116(C)(10) regarding plaintiff's claim for municipal liability under 42 U.S.C. 1983. We therefore affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On August 15, 2011, the GRPD received a telephone complaint that an individual eventually identified as plaintiff was walking through the Michigan Athletic Club's (MAC) parking lot in Grand Rapids and was looking into several vehicles as if intending to steal something from the vehicles. Officers Greg Edgcombe and Eugene Laudenslager responded and located plaintiff sitting under a shade tree. Plaintiff told Edgcombe that he had merely walked through the parking lot on his way to where he was sitting to meet a friend who was taking the bus. Plaintiff did not have identification with him. According to the police report completed by Edgcombe, numerous items had been stolen from vehicles in the MAC parking lot during the preceding months. The police report stated that some of the reports from the previous incidents contained "descriptions of [a] young black male suspect who left the area over the south parking lot grassy knoll which is directly in the path of where plaintiff lives on Burning Tree Drive." Edgcombe "file checked" his computer system for the name that plaintiff had given him (Denishio Johnson) and did not discover any warrants or previous arrests. Laudenslager spoke with a witness who identified plaintiff as the person he had seen looking into vehicles but who stated that plaintiff had not tried to open or enter any of the vehicles.¹

Bargas, a sergeant with the GRPD, arrived on the scene after Laudenslager and Edgcombe had made contact and spoken with plaintiff. According to Bargas, Edgcombe was in the process of trying to identify plaintiff, and Edgcombe reported that plaintiff had told him that he was 15 years old and lived on Burning Tree Drive just south of the MAC parking lot. Bargas testified that plaintiff admitted to walking through the parking lot but that he denied looking into cars. Bargas further testified that plaintiff looked older than 15 years of age and had tattoos. Bargas photographed plaintiff in case there were witnesses from the previous thefts who could identify a suspect. Bargas also fingerprinted plaintiff because the GRPD had tried to obtain latent prints in the previous incidents. Bargas explained that at the time he performed the P&P on plaintiff, he and Edgcombe still were not sure about plaintiff's actual identity and were trying to verify it. Bargas testified that he asked plaintiff if there was someone he could call to come to the scene and confirm his identity. Sometime after the P&P, plaintiff's mother and another family member arrived. Bargas explained to them why plaintiff had been stopped (i.e., that two independent witnesses had described her son as looking into vehicles in the parking lot); and that plaintiff's mother verified his identity, and she indicated that she would make sure that plaintiff took a different route to avoid any future problems. Plaintiff left with his family.

In the meantime, Captain Curtis VanderKooi of the GRPD heard the radio traffic regarding the incident in the MAC parking lot, and went to the scene. VanderKooi testified that he believed he showed up after plaintiff had left and as things were wrapping up at the scene.² VanderKooi further testified that Bargas and Edgcombe explained what had occurred, that he approved of Bargas's actions, and that he then drove away. On the following day, VanderKooi requested that plaintiff's fingerprints be compared with any latent prints found at the scene of the other larcenies from vehicles in the area. According to VanderKooi, either there was no match between the prints or the quality of the prints was inadequate to make a comparison. VanderKooi took no further action related to this incident.

Plaintiff testified that he was handcuffed for the P&P procedure and was placed in the back of a police car for 5 to 10 minutes while waiting for his mother to arrive. Plaintiff denied looking into cars, but stated at his deposition that he usually looked at his reflection in car windows as he passed them. Plaintiff denied touching any vehicle. After the officers spoke with plaintiff's mother, they let plaintiff out of the police car and removed his handcuffs. Plaintiff testified that the police did not ask for his consent for the P&P or any search.

On August 7, 2014, plaintiff filed a complaint against Bargas, VanderKooi, and the City of Grand Rapids (the city), alleging violations of 42 U.S.C. 1981, 42 U.S.C. 1983, and 42 U.S.C. 1988. Plaintiff alleged that, without probable cause or legal authority, Bargas took fingerprints and photographs of plaintiff, who was African American. Plaintiff further alleged that the photographs were stored in the GRPD's files and that VanderKooi directed Bargas to take the fingerprints and photographs and to store them. Plaintiff also alleged that Bargas and VanderKooi took these actions against plaintiff because he was African American. In Count I, the complaint raised a claim against Bargas and VanderKooi under 42 U.S.C. 1981 and 42 U.S.C. 1983, and asserted that they had violated the Equal Protection Clause of the Fourteenth Amendment, U.S. Const., Am. XIV,³ plaintiff's right to be free from unlawful searches and seizures under the Fourth Amendment, U.S. Const., Am. IV, his rights under the Fifth Amendment, U.S. Const., Am. V, barring the taking of private property without just compensation, and his constitutional right to privacy.

In Count II, plaintiff raised a municipal liability claim against the city under 42 U.S.C. 1988. According to the complaint, an analysis of police reports from March 2008 to March 2013 was conducted. The complaint alleged that, in the reports that contained VanderKooi's name and the phrase "P&P" or a similar reference to photograph and print, there were 11 people, including plaintiff, who were innocent of any wrongdoing but who had still had their photographs and prints taken, and an additional person who had only had a photograph taken. The complaint asserted that 75% of those individuals were African American, but the city's population was only 20% African American. The complaint alleged that plaintiff's photograph and prints were taken as part of the city's policy, which was enforced in a discriminatory manner.

On September 3, 2014, defendants filed their answer to the complaint and affirmative defenses. The following affirmative defenses were raised: (1) plaintiff failed to state a claim upon which relief could be granted; (2) the initial contact was a consensual police-citizen encounter; (3) reasonable suspicion supported the initial stop and the actions that followed; (4) the initial stop was reasonable; (5) the actions were not discriminatory or based on race; (6) Bargas and VanderKooi were entitled to qualified immunity; (7) plaintiff consented to some or all of defendants' actions; and (8) any claimed damages were caused, in whole or in part, by plaintiff's own actions.

On September 11, 2015, the city and the individual defendants filed separate motions for summary disposition. Bargas and VanderKooi argued that they were entitled to summary disposition under MCR 2.116(C)(7) because they were entitled to qualified immunity given that the law was not clearly established regarding taking fingerprints and photographs during investigatory stops. VanderKooi additionally argued that he was entitled to summary disposition under MCR 2.116(C)(10) because he did not have an active role in the stop. Moreover, Bargas and VanderKooi argued that they were entitled to summary disposition under MCR 2.116(C)(10) because there was no such thing as a constitutional right to privacy, plaintiff could not establish a takings claim, and plaintiff could not establish that he was discriminated against based on race.

The city argued that it was entitled to summary disposition under MCR 2.116(C)(10) because a city employee did not deny plaintiff a constitutional right, the city's P&P practice did not violate the Fourth Amendment, plaintiff could not establish that the city acted with deliberate indifference to the federal civil rights violations, and plaintiff could not establish a pattern, notice, or tacit approval of illegal conduct on the part of the city.

In response, plaintiff stated that he was abandoning his equal protection and § 1981 claims but denied that summary disposition was appropriate with respect to his remaining claims.

Plaintiff planned to have an expert witness, Dr. William Terrill, testify at trial. Dr. Terrill is a professor of criminal justice at Michigan State University. Dr. Terrill provided an affidavit in...