Salter v. Olsen
| Decision Date | 02 June 2022 |
| Docket Number | Case No. 18-13136 |
| Parties | Aaron SALTER, Plaintiff, v. Donald OLSEN, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Wolf Mueller, Mueller Law Firm, Novi, MI, for Plaintiff.
Patrick M. Cunningham, Christopher Kent Michels, Michael L. Auten, Michael M. Muller, City of Detroit Law Department, Detroit, MI, for Defendant.
In 2003, Plaintiff Aaron Salter was convicted of one count of first-degree murder, two counts of assault with intent to murder, and one count of felony-firearm. (ECF No. 1, PageID.8). He was sentenced to serve life in prison without the possibility of parole. Id. at PageID.9. A team of lawyers and investigators from the Federal Defender Office (FDO) represented Salter in his federal habeas proceeding. While they were unable to obtain habeas relief for Salter, they uncovered previously undisclosed evidence and interviewed witnesses who confirmed Salter's alibi at the time of the shooting for which he had been convicted. See Press Release dated 8/15/18 from Wayne County Prosecutor Kym Worthy, https://www.waynecounty.com/articles/press-release-august-15-2018-prosecutor-worthy.aspx (last accessed 4/28/22).1 They also interviewed the sole eyewitness from Salter's trial, who stated that he was never certain Salter was the shooter. Id. In 2013, a prisoner contacted the FDO attorneys claiming to have personal knowledge of the shooting. Id. The FDO attorneys followed up on that lead, then hired a former FBI polygrapher, to subject Salter to a polygraph examination, which he passed. Id. After Salter's requests for habeas relief were denied, the FDO attorneys sought from the Wayne County Prosecutor's Office newly formed Conviction Integrity Unit (CIU). Id.
In 2018, both the CIU and Salter's counsel began investigating his claim of innocence. (ECF No. 1, PageID.11). Once the investigation was complete, the criminal charges against Salter were dismissed. Id. The Wayne County Prosecutor, issued the following statement:
The Aaron Salter case has been thoroughly reviewed, investigated, and considered. It has been determined that the case against Mr. Salter was based primarily on mistaken identification by the main witness in the case. I am pleased to announce today that this 15-year old homicide conviction against Aaron Salter will finally be dismissed. The system failed him. Nothing I can say will bring back the years of his life spent in prison. Justice is truly being served today. We will recommend to the Michigan Attorney General's Office that Mr. Salter receive wrongful conviction compensation. We sincerely wish him well.
Id. ; see also https://www.waynecounty.com/articles/press-release-august-15-2018-prosecutor-worthy.aspx (last accessed 4/28/22).
Subsequently, Salter filed this lawsuit against the City of Detroit and retired police investigator Donald Olsen, who worked for the Detroit Police Department ("DPD"). (ECF No. 1). He raises several constitutional claims under 42 U.S.C. § 1983 and a state law claim. Count I alleges Fourth Amendment violations for fabrication of evidence, false arrest, and malicious prosecution as well as Fifth Amendment violations for withholding exculpatory material under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and an unnecessarily suggestive identification. Count II alleges a Michigan malicious prosecution claim.
Once discovery closed, Olsen filed a motion for summary judgment, (ECF No. 29), which has been fully brief and is now ready for determination. For the reasons set forth in this opinion, Olsen's motion for summary judgment is GRANTED IN PART and DENIED IN PART .
On August 6, 2003, around 1:20 a.m., Jamar Luster was sitting on the front porch of a home on Parkgrove Street in Detroit, Michigan, with his friends, Kimberly Allen and Michael Payne. (ECF No. 29, PageID.367). The group was hanging out, drinking, and "getting high." (ECF No. 36-7, PageID.780).2 In the midst of it, Luster heard a gunshot, looked to his right and saw two shooters moving slowly toward them. (ECF No. 29-2, PageID.414, ECF No. 36-11, PageID.841). Although it was dark outside, he noted that at least one of the shooters, whom he later identified as Salter, was under a streetlight. (Id. at 843). The shooters were about 35 to 40 feet away from Luster. (ECF No. 36-9, PageID.814). One of the shooters was a smaller man with a pistol; the other a taller, thicker man with a long gun. (ECF No. 29-2, PageID.414, ECF No. 36-11, PageID.839). Luster and Payne both suffered gunshot wounds during the melee. After he was shot, Luster jumped over the bannister of the porch, laid down, and then crawled away. (ECF No. 36-11, PageID.841, 843). According to Luster, he "wasn't tryin’ to look for nobody, [he] was tryin’ to get out the way." (Id. at PageID.842). Both Luster and Payne were taken to the hospital. (ECF No. 29, PageID.367). Another man who was near the porch died of his gunshot wound. (Id. )
Olsen, who was new to the DPD (ECF No. 36-18, PageID.930), responded to the scene of the shooting. (ECF No. 29, PageID.367). Later, around 5:20 a.m., he spoke to Luster at the hospital. (ECF No. 29-5, PageID.421). Luster gave a statement in which he relayed that one of the guys who shot him was named "Rob." (ECF No. 36-2, PageID.724). He described Rob as a black male, 26 to 27 years old, five feet seven inches tall, 150 to 170 pounds, light brown complexion, with a thin beard and low cut hair, wearing dark clothing. (Id. ). Luster explained that he knew Rob from the neighborhood because of "all the shit he be starting." (Id. at PageID.725). In particular, he said that earlier in the day, Rob was with a group of others who had driven by the house where he was shot, waving a gun at six other men. (Id. ). Regarding the second shooter, Luster said he had never seen him before; all he could say about him was that "he's thin firing a gun." (Id. ). Luster also noted that a guy named "E" (Earland Collins) had shot up the house about a month before. (Id. at PageID.726). Luster made a second statement to DPD Officer Joseph Diabliz while at the hospital. In the second statement, he described Rob as "b/m/20's, 5’7", thin build, med. complex., short afro, wearing all black. Known to frequent the area of Pelkey/Linnhurst. Known to drive a ‘beat up’ peach cutlass." (ECF No. 36-3, PageID.728). He described the second shooter as "b/m/20's, 6’0", thin build, white t-shirt, N.O.D." (Id. ). Luster was discharged from the hospital after a couple of hours and went home. (ECF No. 29, PageID.367).
At some point after speaking with Luster, Olsen went to the 9th Precinct to do some research on the case. (ECF No. 36-4, PageID.750). Olsen found a photo of Salter, and for reasons he could not recall during his deposition, Olsen selected Salter as the possible "Rob" referred to by Luster. (Id. ) Notably, at Salter's preliminary examination, which was much closer in time to the events that transpired, Olsen testified that he had a "hunch" that Salter was the shooter because Luster had told him "that he had seen the person before on a few occasions" and, in trying to surmise who he was talking about, Olsen came up with that photo. (ECF No. 36-5, PageID.771–72).
Once Luster was released from the hospital, Olsen went to Luster's home and took yet a third statement. He told Luster that the police had picked up the guy with the rifle. (ECF No. 36-7, PageID.799). Afterward, Olsen showed Luster the single black and white mug shot of Salter that he had retrieved from the station, and Luster identified Salter as the "Rob" who shot him. (Id. ; ECF No. 36-6, PageID.774). While Salter was 6’4" tall and 250 pounds (ECF No.36, PageID.683–84), not 5’7" and 150-170 pounds as Luster had described "Rob," Olsen says he was unaware of Salter's height or weight when he showed Luster the photo. (ECF No. 36-4, PageID.751).
After showing Luster the single photo of Salter, Olsen then showed Luster a photo array containing six other mug shots that did not include Salter. (ECF No. 36-5, PageID.770-771). At Salter's preliminary examination after he had been charged criminally, Olsen testified that Luster did not identify any of the six as "responsible for the shooting," (ECF No. 36-5, PageID.771); Luster, on the other hand, testified during that same hearing that he had picked two people from the array as shooters. (ECF No. 36-9, PageID.830). And at his deposition in this case, Luster testified that he picked "E" out of the photo array as a shooter and told Olsen that "E" was one of the shooters. (ECF No. 36-7, PageID.786, p. 38).
Based on Luster's identification of Salter in the single photo show up, Olsen filled out an investigator's report and submitted it along with the homicide file to the prosecutor's office. (ECF No. 29, PageID.369; ECF No. 29-9, PageID.466). The Assistant Prosecuting Attorney in Wayne County recommended an arrest warrant for Salter. On September 9, 2003, a judge issued a warrant for Salter's arrest. (ECF No. 29, PageID.369).
A few weeks later, at the preliminary examination, only Luster and Olsen testified. Luster described the events surrounding the shooting and again identified Salter as one of the two shooters. (ECF No. 36-9, PageID.813). Luster testified that Salter looked like "the tall one" with the "long gun." (Id. at PageID.814). Repeating what he had said to Olsen at the hospital, he also testified that he had seen Salter "once or twice" before, including when Salter drove by the house waiving a gun earlier on the day of the shooting. (Id. at PageID.818–19). Luster also testified that he was shown a photo array of five or six photos and picked two people out as the shooters; at the time, Luster testified that "the two people I picked out was him and the other guy, Rob, or whatever" and that ...
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