Manuel v. Gill
| Decision Date | 23 March 2006 |
| Docket Number | Docket No. 258933. |
| Citation | 716 N.W.2d 291,270 Mich. App. 355 |
| Parties | Iskandar MANUEL, Maggie Manuel, Jimmy Manuel, Joseph Manuel, Imad Manuel, and Adel Manuel, Plaintiffs-Appellants, v. Timothy J. GILL, County of Clinton, County of Eaton, Rusty Banehoff, County of Ingham, Eaton County Sheriff, Clinton County Sheriff, Kenneth Knowlton, Lansing Chief of Police, City of Lansing, Lansing Police Commission, Jimmy Patrick, Tri-County Metro Narcotics Squad, and Ingham County Sheriff, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Kevin L. McAllister, Lansing, for Iskandar Manuel and others.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and James T. Farrell and Ann M. Sherman, Assistant Attorneys General, for Timothy J. Gill, Kenneth Knowlton, and the Tri-County Metro Narcotics Squad.
Cohl, Stoker, Toskey & McGlinchey, P.C. (by John R. McGlinchey and Timothy M. Perrone), Lansing, for Ingham County, the Ingham County Sheriff, and Evan Bennehoff, Jr.
Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Patrick A. Aseltyne, Jason D. Kolkema, and Mark E. Rath), Lansing, for Eaton County and the Eaton County Sheriff.
Cummings, McLorey, Davis & Acho, P.L.C. (by Joseph Nimako), Livonia, for Clinton County and the Clinton County Sheriff.
Plunkett & Cooney, P.C. (by Mary Massaron Ross and David K. Otis), and Paul F. Novak, City Attorney, for the city of Lansing, the Lansing Chief of Police, and the Lansing Police Commission.
Before: METER, P.J., WHITBECK, C.J., and SCHUETTE, J.
In this action alleging (1) violations of 42 USC 1983 under a state-created danger theory if liability, (2) gross negligence, (3) intentional or grossly negligent infliction of emotional distress, and (4) breach of contract, plaintiffs Iskandar Manuel, Maggie Manuel, Jimmy Manuel, Joseph Manuel, Imad Manuel, and Adel Manuel (the Manuels) appeal by leave granted the trial court's opinion and order granting summary disposition to defendants, which include various law enforcement agencies and personnel, pursuant to MCR 2.116(C)(8) and (10). This case stems from Iskandar's agreement to act as an informant for defendant Tri-County Metro Narcotics Squad in an undercover narcotics operation. The Manuels' allegations stem from conduct that occurred during that undercover investigation. On appeal, the Manuels argue that the trial court erred by granting summary disposition for defendants on all their claims and by denying their request to amend their pleadings. We conclude that the trial court's grant of summary disposition on all grounds was proper, and we therefore affirm.
The Tri-County Metro Narcotics Squad (TCM) is a task force created to enforce narcotics and controlled substances laws in Michigan. The TCM is composed of various law enforcement agencies, including the sheriff's departments of Ingham, Eaton, and Clinton counties, the Lansing Police Department, the East Lansing Police Department, the Michigan Department of State Police, the Lansing Township Police Department, and the Lansing office of the Federal Bureau of Investigation. The participating police agencies assign officers to the TCM, and, while assigned to the TCM, those officers operate under the direction and supervision of the Michigan State Police (MSP). Accordingly, the officers must conform to certain operating procedures, as established by the MSP criminal investigative division policy book, including procedures for dealing with confidential informants.
The Manuels are Lansing residents who own a family car dealership also located in Lansing. Iskandar and Maggie Manuel are married and reside in the same household as the remaining plaintiffs, who work in the family business.1
In 1998, Iskandar became aware that Toby Torres, a customer of the Manuels' car dealership, was a drug dealer whom the TCM was investigating. Defendant Michigan State Police Trooper Kenneth Knowlton, serving as a TCM officer, asked Iskandar to assist the TCM in building a case against Torres. In 1999, Iskandar agreed to assist with the investigation after the TCM assured him that his identity would not be disclosed and that the TCM would reimburse him for any expenses incurred and any losses that the family business incurred. Thereafter, Iskandar informed the TCM of planned drive-by shootings, drug deals, and other criminal activities of Torres and his acquaintances. The TCM also installed surveillance equipment in the Manuels' residence and family business to videotape and record meetings and phone calls.
On December 5, 2003, the Manuels filed a first amended complaint, alleging violations of their constitutional rights under a state-created danger theory pursuant to § 1983 against Michigan State Police Trooper (and TCM officer) Timothy Gill, Trooper Knowlton, and the TCM (collectively, the state defendants); Clinton County and the Clinton County Sheriff (collectively, the Clinton County defendants); Ingham County, the Ingham County Sheriff, and Ingham County Sheriff's Department Officer (and TCM officer) Rusty Banehoff2 (collectively, the Ingham County defendants); Eaton County and the Eaton County Sheriff (collectively, the Eaton County defendants); the city of Lansing, the Lansing Chief of Police, and the Lansing Police Commission (collectively, the Lansing defendants); and retired Michigan State Police Captain Jimmy Patrick.3 The Manuels also alleged gross negligence against Banehoff, Gill, Knowlton, and Patrick; intentional or grossly negligent infliction of emotional distress against Banehoff, Gill, and Knowlton; and breach of an expressed or implied contract against the TCM.
The Manuels alleged that Gill, Knowlton, and the TCM continued to authorize the placement of tracking devices on vehicles that they sold to drug dealers despite the fact that it would be readily discoverable that the devices were installed while the vehicles were in Iskandar's possession. The Manuels also alleged that Gill prompted Iskandar to sign a form consenting to a search of a residence in which Iskandar had allowed one of the targets of the investigation to reside and that the form constituted discoverable evidence indicating Iskandar's involvement in disregard of the promise to keep his identity secret. The Manuels further alleged that in the fall of 2000, Knowlton informed Torres's probation officer that Iskandar was cooperating with the TCM and that the probation officer thereafter informed Torres of Iskandar's cooperation.
In addition, the Manuels alleged that Gill, Knowlton, and the TCM arranged a drug deal in which the drug traffickers were to deliver 500 pounds of marijuana and 50 kilograms of cocaine. The traffickers delivered the marijuana, but not the cocaine, and Gill, Knowlton, and the TCM refused to pay $300,000 for the marijuana until the cocaine was delivered. The Manuels maintained that Iskandar received repeated threats on his life because the traffickers were never paid for the marijuana. Further, the Manuels alleged that Iskandar gave Knowlton the phone number of a drug dealer's girlfriend and that Knowlton called the phone number and identified himself. According to the Manuels, the dealer was, therefore, able to determine that Iskandar was working with the police because that phone number had been given only to him.
In addition, regarding another undercover transaction between Iskandar and the drug dealers, the Manuels alleged that Gill called officers who were arresting a dealer over a two-way radio and stated, in a voice loud enough for the drug dealer to hear, that Iskandar had been arrested. Gill did not inform Iskandar of this subterfuge, however, and Iskandar's cooperation with the TCM was apparent when the dealer's son saw Iskandar arrive at the family business moments after his purported arrest. Further, the Manuels alleged that, in 2002, Banehoff was permitted to remain part of an investigation in which "Edward," a friend of Banehoff, was an acquaintance of one of the targets. The Manuels alleged that Banehoff disclosed to "Edward" Iskandar's assistance in the investigation. The Manuels alleged that, as a result of the conduct of Gill, Knowlton, Banehoff, and the TCM in disclosing Iskandar's cooperation, the Manuels' safety was seriously jeopardized. Their purported peril was evidenced, they alleged, by the fact that the windows of Iskandar's son's car were shot out while the car was being driven, a bloody heart with a knife through it was found on the Manuels' doorstep, Iskandar's sons were threatened with retaliation, Iskandar received numerous threatening phone calls, and there was an apparent contract for Iskandar's murder.
Subsequently, each of the defendants moved for summary disposition, and, following hearings on those motions, the trial court issued a written opinion and order granting all defendants' motions for summary disposition. The trial court grouped the Manuels' claims into four categories: (1) the Manuels' § 1983 rights to be free from state-created danger, (2) gross negligence, (3) intentional infliction of emotional distress, and (4) breach of contract. Regarding the Manuels' § 1983 claim, the trial court determined that, unlike the circumstances of Kallstrom v. City of Columbus,4 no affirmative conduct on behalf of the officers amounted to a constitutional violation. The trial court reasoned that the Manuels voluntarily agreed to cooperate with the TCM and that nothing indicated that they could not have withdrawn their cooperation if they became uncomfortable with the investigation. The trial court stated that an investigation of such magnitude is "inherently dangerous" and that defendants' actions "amount to nothing more than conduct implicit in an undercover investigation." The trial court opined that if it were to expand K...
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