Denishio Johnson v. Curt Vanderkooi ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
DENISHIO JOHNSON, FOR PUBLICATION
May 23, 2017
Plaintiff-Appellant, 9:00 a.m.
and
THE AMERICAN CIVIL LIBERTIES UNION
OF MICHIGAN,
Amicus Curiae,
v No. 330536
Kent Circuit Court
CURT VANDERKOOI, ELLIOT BARGAS, and LC No. 14-007226-NO
CITY OF GRAND RAPIDS,
Defendants-Appellees.
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 VanderKooi and 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 USC § 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
-1-
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 who was looking into vehicles but who
stated that plaintiff did not try to open or enter any of the vehicles.1
Sergeant Elliot Bargas of 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 who plaintiff was and 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 denied looking into cars.
Bargas further testified that plaintiff looked older than 15 years of age and had tattoos. Sergeant
Bargas photographed plaintiff in case there were witnesses from the previous thefts who could
identify a suspect. Sergeant 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 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 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
1
Edgcombe’s report states: “We discovered that [plaintiff] had looked into cars but unlike the
initial information he had not tried to open or enter any of the vehicles that he looked into.” It is
not clear from the record what the phrase “initial information” refers to, as Edgcombe’s
description of the telephone complaint that prompted his response to the scene only indicates that
the complainant described plaintiff as “looking into several cars as he passed by them in the lot
as if looking to steal something if it presented it self [sic] to him.”
2
Bargas testified that he thought that VanderKooi arrived while plaintiff was stopped and before
plaintiff’s mother arrived.
-2-
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 USC 1981, 42 USC 1983, and
42 USC 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 USC 1981 and
42 USC 1983, and asserted that they had violated the Equal Protection Clause of the Fourteenth
Amendment, US Const, Am XIV,3 plaintiff’s right to be free from unlawful searches and
seizures under the Fourth Amendment, US Const, Am IV, his rights under the Fifth Amendment,
US 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 USC 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)
3
The Fourteenth Amendment also provides the basis for claims that a state has denied other
federal constitutional rights. See Rendell-Baker v Kohn, 457 U.S. 830, 837-838; 102 S. Ct. 2764;
73 L. Ed. 2d 418 (1982).
-3-
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 which he opined that Bargas’s actions in performing the P&P procedure in this case were
unreasonable. Defendants filed a joint motion to strike Dr. Terrill’s proposed testimony.
Defendants argued that Dr. Terrill’s proposed testimony could be broken down into two
categories: numerical opinions on racial profiling and opinions on whether Bargas’s actions were
reasonable. With respect to the numerical opinions on racial profiling, defendants argued that
the opinion was inadmissible and unnecessary to the extent that it involved the ordinary use of
computations that any layperson could perform. They further argued that Dr. Terrill was
unqualified to testify about racial profiling. Moreover, defendants argued that Dr. Terrill’s
analysis was unreliable because it used unadjusted census data as a statistical benchmark—an
approach rejected by many courts; that the analysis was unreliable because nothing was used as a
control; that the analysis was unreliable because his “preliminary opinions” regarding this case
were not developed using the same intellectual rigor as his academic work; and that the analysis
involved inadmissible hearsay and was unnecessary for the jury to interpret the facts. Finally,
defendants argued that Dr. Terrill’s opinion contradicted the admissible evidence.
On October 30, 2015, the trial court held a hearing on the motions for summary
disposition and the motion to strike. Defendants argued that there was no generalized
constitutional right to privacy; that a right to privacy must be tied to a specific amendment; and
that, in this case, the applicable amendment is the Fourth Amendment. Thus, defendants
maintained that there could not be a separate claim under a general right to privacy and that the
proper analysis is under the Fourth Amendment. Plaintiff did not dispute that analysis and
agreed that his right to privacy should be evaluated in the context of the Fourth Amendment.
-4-
Defendants further argued that people did not have a reasonable expectation of privacy in their
fingerprints or in photographs of themselves as they appeared in public. Plaintiff responded that
either a search warrant or probable cause in the field was needed to gather the evidence and that
“none of the bases that the Fourth Amendment requires” were present to allow the gathering of
photographs and fingerprints in this case.
With respect to the Fifth Amendment, defendants argued that there are no property rights
implicated in a person’s photograph or fingerprints, that the photograph and fingerprints in this
case were not published, and that the underlying incident was an application of police powers
rather than a taking under the city’s eminent domain power. Plaintiff argued that the incident
involved a taking of intangible property without just compensation, although he conceded that
there were certain instances when police could take someone’s photograph and fingerprints as an
appropriate exercise of police powers. Plaintiff also conceded that he could not find caselaw
indicating that the taking of a fingerprint or photograph by police constituted a taking under the
Fifth Amendment, but he maintained that it was an issue of first impression.
Following the hearing, the trial court issued two separate written opinions and orders
regarding the motion to strike Dr. Terrill and the motions for summary disposition. With respect
to the motion to strike, the trial court acknowledged Dr. Terrill’s substantial training and
education in the general field of criminal justice but questioned whether he was qualified to give
an expert opinion in the instant case. The trial court held that, even assuming that Dr. Terrill was
qualified in the area of police conduct similar to the instant case, plaintiff had failed to establish
that Dr. Terrill’s opinion would assist the trier of fact or that his opinions were based on a
recognized form of specialized knowledge. The trial court therefore concluded that plaintiff had
failed to satisfy the requirements of MRE 702. In addition, the trial court held that the testimony
sought to be introduced did not pass muster under MRE 403 because the information—whether
based on Dr. Terrill’s statistical analysis or on non-statistical opinion—was unnecessary to assist
the jury; plaintiff abandoned the equal protection claims based on race; and the statistical
information would only confuse the issues presented to the jury. Accordingly, the trial court
granted the motion to strike.
With respect to Bargas and VanderKooi’s motion for summary disposition, the trial court
noted that the complaint was limited to the P&P procedure and that plaintiff “did not challenge
the propriety of the initial stop, search of his person, or detention.” The trial court held that
plaintiff “was in public and had no reasonable expectation of privacy in his various physical
features which were readily observable by the public” and that the P&P did not violate the
Fourth Amendment. In the alternative, the trial court noted that the Fourth Amendment only
prohibited unreasonable searches and seizure, and it held that, even assuming that the P&P
constituted a search and seizure, Bargas’s actions were reasonable given the circumstances.
Further, the trial court held that plaintiff did not establish that VanderKooi directed Bargas’s
actions. The trial court also rejected plaintiff’s argument that he had a constitutional right to
privacy in his fingerprints and facial features. The trial court therefore held that summary
disposition was appropriate under MCR 2.116(C)(10) with respect to plaintiff’s Fourth
Amendment and constitutional right to privacy claim.
Regarding the Fifth Amendment claim, the trial court rejected plaintiff’s argument and
held that his facial features and fingerprints were “observable by the general public and not
-5-
protected under the common law right to privacy.” It therefore held that summary disposition
was appropriate under MCR 2.116(C)(10). The trial court also held that plaintiff had abandoned
his equal protection claim under 42 USC 1981. Consequently, it held that summary disposition
was appropriate under MCR 2.116(C)(10).
In addition, the trial court held that qualified immunity applied to all of plaintiff’s claims
against Bargas and VanderKooi. Therefore, the trial court concluded, “Because Plaintiff failed
to establish a genuine issue of material fact regarding his 1983 claims, and abandoned his 1981
claim, and because Bargas and VanderKooi are otherwise shielded by qualified immunity,
summary disposition is appropriate pursuant to MCR 2.116(C)(7) and 2.116(C)(10).”
With respect to the city’s motion for summary disposition, the trial court held that
plaintiff had failed to establish a violation of his constitutional rights and had not established that
the policy was unconstitutional on its face or as applied; therefore, summary disposition was
appropriate under MCR 2.116(C)(10).
The trial court accordingly dismissed plaintiff’s claims with prejudice. This appeal
followed.
II. INDIVIDUAL DEFENDANTS
Plaintiff argues that the trial court erred by granting summary disposition in favor of
Bargas and VanderKooi on his Fourth and Fifth Amendment claims. Because we find that
Bargas and VanderKooi were shielded by the doctrine of qualified immunity, we disagree.
A. STANDARD OF REVIEW
“A motion for summary disposition under MCR 2.116(C)(7) asserts that a claim is barred
by immunity granted by law” and “may be supported or opposed by affidavits, depositions,
admissions, or other documentary evidence; the substance or content of the supporting proofs
must be admissible in evidence.” By Lo Oil Co v Dep’t of Treasury, 267 Mich. App. 19, 26; 703
NW2d 822 (2005). “A trial court properly grants a motion for summary disposition under
MCR 2.116(C)(7) when the undisputed facts establish that the moving party is entitled to
immunity granted by law.” Id. We review de novo a trial court’s grant of summary disposition
pursuant to MCR 2.116(C)(7). Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich. 543,
553; 837 NW2d 244 (2013). Further, we review de novo the question of whether a federal
constitutional right was clearly established at the time of the alleged violation so as to preclude
the protection of qualified immunity. See Elder v Holloway, 510 U.S. 510, 516; 114 S. Ct. 1019,
1023; 127 L. Ed. 2d 344 (1994); Morden v Grand Traverse Co, 275 Mich. App. 325, 340; 738
NW2d 278 (2007).
B. QUALIFIED IMMUNITY GENERALLY
“Qualified immunity is an established federal defense against claims for damages under
§ 1983 for alleged violations of federal rights.” Id. A person is liable under 42 USC 1983 if he
or she, “under color of any statute, ordinance, regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen of the United States or other person within the
-6-
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution . . . .” 42 USC 1983. “Section 1983 itself is not the source of substantive rights; it
merely provides a remedy for the violation of rights guaranteed by the federal constitution or
federal statutes.” York, 438 Mich. at 757-758. “A cause of action under § 1983 is stated where a
plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant
deprived the plaintiff of that right while acting under color of state law.” Davis, 201 Mich. App.
at 576-577. However, “[a] police officer may invoke the defense of qualified immunity to avoid
the burden of standing trial when faced with a claim that the officer violated a person’s
constitutional rights.” Lavigne v Forshee, 307 Mich. App. 530, 542; 861 NW2d 635 (2014).
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Id. at 542 (quotation marks and
citations omitted). Thus, qualified immunity does not apply if a right was “clearly established”
at the time of the violation, such that it “would be clear to a reasonable officer” that his or her
conduct was unlawful. Id. (citations omitted).
Qualified immunity can apply “even if there were a genuine issue of material fact
regarding the underlying [constitutional] claim.” Morden, 275 Mich. App. at 340, 342. See also
Messerschmidt v Millender, 565 U.S. 535, 546; 132 S. Ct. 1235, 1244; 182 L. Ed. 2d 47 (2012)
(“Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate
the law.”) (quotation marks and citation omitted). In order for a right to be clearly established,
there must be “binding precedent . . . that is directly on point.” Morden, 275 Mich. App. at 340
(quotation marks and citation omitted; alteration in Morden).
In Saucier v Katz, 533 U.S. 194, 201; 121 S. Ct. 2151; 150 L. Ed. 2d 272 (2001), the United
States Supreme Court articulated the initial inquiry for determining whether qualified immunity
applies: “Taken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?” If there was no violation of a
constitutional right, no further inquiry regarding qualified immunity is required. Id. However,
“if a violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.” Id. “[T]he right the official
is alleged to have violated must have been ‘clearly established’ in a more particularized, and
hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.’ ” Id. at 202, quoting
Anderson v Creighton, 483 U.S. 635, 640; 107 S. Ct. 3034; 97 L. Ed. 2d 523 (1987). In other words,
the “dispositive inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Id.; see also Anderson, 483 U.S. at 640 (“This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held unlawful, but it is
to say that in the light of pre-existing law the unlawfulness must be apparent.”) (citation
omitted).
In Pearson v Callahan, 555 U.S. 223, 231-232; 129 S. Ct. 808; 172 L. Ed. 2d 565 (2009), the
Court clarified that courts may exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
-7-
in the particular case at hand.” Id. at 236. See also Jones v Byrnes, 585 F3d 971, 975 (CA 6,
2009) (explaining that “Pearson left in place [Saucier’s] core analysis” and that it “need not
decide whether a constitutional violation has occurred if we find that the officer’s actions were
nevertheless reasonable”).
In this case, the circumstances lead us to conclude that the second prong of the Saucier
analysis is dispositive of whether Bargas and VanderKooi are entitled to qualitative immunity.
We therefore decline to address whether, taken in the light most favorable to plaintiff, the P&P
procedure violated plaintiff’s Fourth and Fifth Amendment rights. Rather, for the reasons stated
below, we hold that at the time of the alleged violation, the right asserted by plaintiff was not
clearly established. Saucier, 533 U.S. at 201.
C. FOURTH AMENDMENT RIGHTS
The Fourth Amendment to the United States Constitution protects against unreasonable
searches and seizures. People v Slaughter, 489 Mich. 302, 310-311; 803 NW2d 171 (2011). See
also Maryland v King, ___ US ___, ___; 133 S. Ct. 1958, 1968; 186 L. Ed. 2d 1 (2013), quoting US
Const, Am IV (“The Fourth Amendment, binding on the States by the Fourteenth Amendment,
provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.’ ”). There is a dual inquiry for
determining whether a search or a seizure is unreasonable: “whether the officer’s action was
justified at its inception, and whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.” Terry v Ohio, 392 U.S. 1, 20; 88 S. Ct. 1868,
1879; 20 L. Ed. 2d 889 (1968).
A person is liable under 42 USC 1983 if he or she, “under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . . .” 42 USC 1983. “Section 1983 itself
is not the source of substantive rights; it merely provides a remedy for the violation of rights
guaranteed by the federal constitution or federal statutes.” York v Detroit (After Remand), 438
Mich. 744, 757-758; 475 NW2d 346 (1991). “A cause of action under § 1983 is stated where a
plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant
deprived the plaintiff of that right while acting under color of state law.” Davis v Wayne Co
Sheriff, 201 Mich. App. 572, 576-577; 507 NW2d 751 (1993). It is undisputed that the officers
were acting under the color of state law when the alleged Fourth Amendment violation of
plaintiff’s rights occurred.
1. NATURE OF PLAINTIFF’S CLAIMS
The factual allegations of plaintiff’s complaint relate solely to the taking of plaintiff’s
photograph and fingerprints. Plaintiff did not challenge his initial stop, the length of his
detainment, or the fact that he was handcuffed or placed in a police car, as being unreasonable
and violative of his Fourth Amendment rights. Rather, he alleged only that the P&P procedure
was an unlawful search and seizure. This Court must limit its review to the allegations contained
in the complaint. See Sutter v Ocwen L Servicing, LLC, 499 Mich. 874; 876 NW2d 244 (2016),
see also Steed v Covey, 355 Mich. 504, 511; 94 NW2d 864 (1959), quoting 41 Am Jur, Pleading,
-8-
§ 77, pp 343-345 (explaining the general principles that “[e]very material fact essential to the
existence of the plaintiff’s cause of action, and which he must prove to sustain his right of
recovery, must be averred, in order to let in proof thereof” and that “[e]very issue must be
founded upon some certain point, so that the parties may come prepared with their evidence and
not be taken by surprise, and the jury may not be misled by the introduction of various matters”).
The trial court did not abuse its discretion by limiting plaintiff’s claims to those that
plaintiff actually pled. The entirety of plaintiff’s Count I (against Bargas and VanderKooi) reads
as follows:
9. On August 25, 2011, Plaintiff Johnson was sitting on the grass
approximately 150 south of Burton Street near the intersection of Breton Avenue
_in the City of Grand Rapids.
10. Plaintiff Johnson is an African-American.
11. Officer Greg Edgcombe contacted Plaintiff Johnson following a
call from personnel at the' Michigan Athletic Club (“MAC”).
12. Despite being told that [plaintiff] had not tried to open or enter any of
the vehicles in the MAC parking lot (unlike the initial information), Sgt. Elliott
Bargas took a full set of fingerprints and two photos of [plaintiff], without
probable cause, a search warrant or other legal authority to do so.
13. Upon information and belief, Defendant VanderKooi directed Sgt.
Bargas to photograph Plaintiff Johnson and have the photograph stored in the files
and records of the City of Grand Rapids Police Department, without probable
cause, a search warrant, or legal authority to do so.
14. Upon information and belief, Defendant VanderKooi directed Sgt.
Bargas to take Plaintiff Johnson’s fingerprints and have the fingerprints stored in
the files and records of the City of Grand Rapids Police Department, without
probable cause, a search warrant, or legal authority to do so.
15. Defendants VanderKooi and Bargas took the above actions against
Plaintiff Johnson, because he is an African-American.
16. At no time on August 15, 2011, did Plaintiff Johnson commit any
offense in violation of the laws of the City of Grand Rapids, State of Michigan, or
the United States.
17. There was no legal cause to justify the seizure of Plaintiff Johnson’s
photographic image and fingerprints.
18. The actions taken by Defendant Bargas and VanderKooi, were
unreasonable and excessive.
-9-
19. Plaintiff Johnson’s constitutionally protected rights that Defendant
Bargas and VanderKooi violated include the following:
a. His right to fair and equal treatment guaranteed and protected by the
Equal Protection Clause of the Fourteenth Amendment.
b. His rights under the Fourth and Fourteenth Amendments to be free
from unlawful search and seizure.
c. His rights under the Fifth Amendment which bars the taking of private
property for public use without just compensation.
d. His right to privacy under the U.S. Constitution;
e. His rights protected by 42 U.S.C. § 1981 and 42 U.S.C. § 1983.
20. As a direct and proximate result of Defendant’s [sic] conduct, Plaintiff
Johnson suffered a loss of freedom, emotional injury, including but not limited to
fright, shock, embarrassment, and humiliation, and other constitutionally
protected rights described above.
Although plaintiff now seeks to expand his claim to encompass a challenge to the length
of his detention and his handcuffing, plaintiff’s complaint itself reflects no such challenge.
Moreover, the record reflects that the focal point of this litigation—from beginning to end—was
not the duration of the stop or the handcuffing, but rather the P&P procedure. At the summary
disposition hearing, for example, trial counsel argued:
And that’s our point, is you have to be careful when you’re going to take
somebody’s pictures or prints. . . .
* * *
So our contention is, no, there’s no reasonable suspicion. There’s no
probable cause to suspect that Mr. Johnson has done anything, and you don’t have
the authority under the Fourth Amendment to take his photographs – plural – and
take his full set of fingerprints.
The P&P procedure has continued to be the focal point on appeal. For example, plaintiff
argues:
At the time of the encounter with Johnson, the law was clearly established
regarding the fact that fingerprints could not be taken without probable cause and
for that reason summary disposition on Johnson’s Fourth Amendment claim was
inappropriate.
* * *
This is a case where a person was subject to detention for the sole purpose of
obtaining fingerprints, without probable cause. Such action violates the Fourth
Amendment . . . .
-10-
* * *
Thus, it should be clear that the compulsory detention of Johnson in this case for
the sole purpose of obtaining his fingerprints, without probable cause, violated the
Fourth Amendment of the Constitution.
* * *
The issue in this case is the appropriateness of the taking of photographs and
fingerprints of innocent people.4
Notwithstanding this focus, plaintiff cursorily asserts on appeal that the singular reference
in paragraph 19(b) of his complaint to “[h]is rights under the Fourth and Fourteenth
Amendments to be free from unlawful search and seizure” were adequate to place defendants on
notice that he was challenging not only the P&P procedure, but the length of his detention and
the fact that he was handcuffed.5 We disagree.
While Michigan is a notice pleading state, Johnson v QFD, Inc, 292 Mich. App. 359, 368;
807 NW2d 719 (2011), a complaint must still provide reasonable notice to opposing parties. Id.;
see also Dacon v Transue, 441 Mich. 315, 329; 490 NW2d 369 (1992); MCR 2.111(B)(1). A
defendant should not be left to “guess upon what grounds plaintiff believes recovery is justified”
after reading the complaint. Dacon, 441 Mich. at 329. Therefore, MCR 2.111(B)(1) requires that
a theory of liability be supported by “specific allegations reasonably necessary to inform the
adverse party” of the pleader’s claims. Id. In this case, plaintiff provided specific allegations
concerning the P&P procedure; however, the complaint is devoid of any allegations (much less
specific ones) concerning the use of handcuffs or the length of plaintiff’s detention. In fact, the
complaint specifically alleges only that “[t]here was no legal cause to justify the seizure of
Plaintiff Johnson’s photographic image and fingerprints” and contains absolutely no allegations
related to the seizure of plaintiff’s person. The complaint’s general allegation that the
“unreasonable and excessive” actions taken by Bargas and VanderKooi resulted in a violation of
his Fourth Amendment rights is the sort of general allegation that “gives no hint of the facts to
4
Amicus Curiae, The American Civil Liberties Union of Michigan, confines its arguments in
support of plaintiff to the P&P procedure.
5
We note that on appeal plaintiff appears to challenge only the fact that his detention continued
after officers on the scene spoke with witnesses and plaintiff himself. While plaintiff does not
specify the precise length of time during which the detention was allegedly unreasonable,
plaintiff testified at his deposition that he was interviewed by police, his fingerprint and picture
were taken, and he was then handcuffed and allowed to call his mother. He further testified that
5 to 10 minutes elapsed from the time that he called his mother and her arrival, and that he was
let out of the police car and handcuffs after his mother spoke with police. Bargas testified to a
brief interaction with plaintiff’s mother wherein she showed him her identification and identified
plaintiff as her son.
-11-
which it refers.” Dacon, 441 Mich. at 329. It can therefore only be interpreted as referring back
to the specific allegations that plaintiff did assert relative to the P&P procedure.
The trial court in this case did not abuse its discretion in declining to read plaintiff’s
general Fourth Amendment allegation as providing sufficient notice to defendants concerning
any and all theories of liability that may have arisen from any portion of plaintiff’s interaction
with police—particularly where the complaint was devoid of any specific allegation concerning
the unreasonableness of the seizure of defendant’s person. Id. at 328. And because plaintiff
never sought to amend his complaint to allege such a challenge, the trial court was not obliged to
offer such an opportunity, and cannot be found to have committed plain error by failing sua
sponte to do so. See Kloain v Schwartz, 272 Mich. App. 232, 242; 725 NW2d 671 (2006)
(holding that the trial court was not required to sua sponte offer the plaintiff leave to amend his
complaint absent a request for leave to amend or the defendants’ written consent to amend).
For all of these reasons, we must confine our analysis of plaintiff’s Fourth Amendment
challenge and the issue of whether—for purposes of a qualified immunity analysis—plaintiff’s
alleged constitutional rights were clearly established, to the alleged unlawful search and seizure
arising from the officers’ use of the P&P procedure.
2. APPLICATION
“[A] Fourth Amendment search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.” Kyllo v United States, 533 U.S. 27,
33; 121 S. Ct. 2038, 2042; 150 L. Ed. 2d 94 (2001). See also United States v Jacobsen, 466 U.S.
109, 113; 104 S. Ct. 1652, 1656; 80 L. Ed. 2d 85 (1984) (“A ‘search’ occurs when an expectation
of privacy that society is prepared to consider reasonable is infringed.”). “What a person
knowingly exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. But what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.” Katz v United States, 389 U.S. 347, 351; 88 S. Ct.
507, 511; 19 L. Ed. 2d 576 (1967) (citations omitted).
When police obtain physical evidence from an individual, there are two different levels at
which there might be a potential Fourth Amendment violation. United States v Dionisio,
410 U.S. 1, 8; 93 S. Ct. 764, 769; 35 L. Ed. 2d 67 (1973). The first level involves the initial
“ ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents,” and the
second level involves “the subsequent search for and seizure of the evidence.” Id.
The United States Supreme Court has stopped short of deciding whether a brief detention
of an individual for the purpose of fingerprinting, based on a reasonable suspicion (i.e., a Terry
stop, Terry, 392 U.S. at 20), is per se unreasonable. See Davis v Mississippi, 394 U.S. 721, 722; 89
S. Ct. 1394, 1395; 22 L. Ed. 2d 676 (1969). In Davis, the Court explicitly stated that it was not
deciding whether, during a criminal investigation, fingerprints could be obtained in the absence
of probable cause. See id. at 728. (“We have no occasion in this case, however, to determine
whether the requirements of the Fourth Amendment could be met by narrowly circumscribed
procedures for obtaining, during the course of a criminal investigation, the fingerprints of
individuals for whom there is no probable cause to arrest.”). In fact, the Court stated that “[i]t is
arguable, however, that, because of the unique nature of the fingerprinting process, such
-12-
detentions might, under narrowly defined circumstances, be found to comply with the Fourth
Amendment even though there is no probable cause in the traditional sense.” Id. at 727-728.
The Davis Court ultimately decided the issue on the grounds that the petitioner’s detention at the
police headquarters “was not authorized by a judicial officer,” that the “petitioner was
unnecessarily required to undergo two fingerprinting sessions,” and that the “petitioner was not
merely fingerprinted during the [initial] detention but also subjected to interrogation.” Id. at 728.
The conduct challenged in Davis thus occurred at the first level of Fourth Amendment
analysis (i.e., the initial seizure of the petitioner’s person necessary to bring him into contact with
government agents), not the taking of the petitioner’s fingerprints. See Dionisio, 410 U.S. at 11
(“For in Davis it was the initial seizure—the lawless dragnet detention—that violated the Fourth
and Fourteenth Amendments, not the taking of the fingerprints.”). The Dionisio Court further
stated that “Davis is plainly inapposite to a case where the initial restraint does not itself infringe
the Fourth Amendment” Id. Further, in discussing whether the collection of a voice recording
from a suspect required probable cause, the Court explained that a voice exemplar did not require
intrusion into the body like a blood extraction, and it stated, “Rather, this is like the
fingerprinting in Davis, where, though the initial dragnet detentions were constitutionally
impermissible, we noted that the fingerprinting itself ‘involves none of the probing into an
individual’s private life and thoughts that marks an interrogation or search.’ ” Id. at 14-15,
quoting Davis, 394 U.S. at 727. Therefore, “neither the summons to appear before the grand jury
nor its directive to make a voice recording infringed upon any interest protected by the Fourth
Amendment . . . .” Dionisio, 410 U.S. at 15.
In Hayes v Florida, 470 U.S. 811, 814; 105 S. Ct. 1643; 84 L. Ed. 2d 705 (1985), the Court
concluded that there was no probable cause for the plaintiff to have been arrested, no consent,
and no judicial authorization for detaining the defendant for fingerprinting purposes. Although
the Court ultimately reversed the defendant’s conviction, the reversal was based on the fact that,
as in Davis, the defendant was forcibly removed from his home without probable cause or a
warrant and transported to the police station for the purposes of fingerprinting him. Id. at 815-
818. Notably, the Court stated, “None of the foregoing implies that a brief detention in the field
for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to
probable cause, is necessarily impermissible under the Fourth Amendment.” Id. at 816. The
Court explained as follows:
In addressing the reach of a Terry stop in Adams v. Williams, 407 U.S. 143, 146
(1972), we observed that “[a] brief stop of a suspicious individual, in order to
determine his identity or to maintain the status quo momentarily while obtaining
more information, may be most reasonable in light of the facts known to the
officer at the time.” Also, just this Term, we concluded that if there are
articulable facts supporting a reasonable suspicion that a person has committed a
criminal offense, that person may be stopped in order to identify him, to question
him briefly, or to detain him briefly while attempting to obtain additional
information. United States v. Hensley, supra, at 229, 232, 234. Cf. United States
v. Place, 462 U.S. 696 (1983); United States v. Martinez-Fuerte, 428 U.S. 543
(1976); United States v. Brignoni-Ponce, 422 U.S. 873 (1975). There is thus
support in our cases for the view that the Fourth Amendment would permit
seizures for the purpose of fingerprinting, if there is reasonable suspicion that the
-13-
suspect has committed a criminal act, if there is a reasonable basis for believing
that fingerprinting will establish or negate the suspect’s connection with that
crime, and if the procedure is carried out with dispatch. Cf. United States v.
Place, supra. Of course, neither reasonable suspicion nor probable cause would
suffice to permit the officers to make a warrantless entry into a person’s house for
the purpose of obtaining fingerprint identification. Payton v. New York, 445 U.S.
573 (1980). [Hayes, 470 U.S. at 816-817.]
In short, the United States Supreme Court has not definitively held whether fingerprinting
someone constitutes a search under the Fourth Amendment. See Maryland v King, 569 US ___,
___; 133 S. Ct. 1958, 1987; 186 L. Ed. 2d 1 (2013) (SCALIA, J., dissenting); see also Kaupp v
Texas, 538 U.S. 626, 630 n 2; 123 S. Ct. 1843, 1846; 155 L. Ed. 2d 814 (2003). And the Court has
suggested that fingerprints are a physical feature regularly exposed to the public. See, e.g.,
Dionisio, 410 U.S. at 14-15. Various federal courts have relied on Dionisio in holding that
photographing and fingerprinting does not constitute a search under the Fourth Amendment.
See, e.g., United States v Farias-Gonzalez, 556 F3d 1181, 1188 (CA 11, 2009), citing Dionisio,
410 U.S. 14-15 (“The police can obtain both photographs and fingerprints without conducting a
search under the Fourth Amendment.”); Rowe v Burton, 884 F Supp 1372, 1381 (D Alas, 1994),
citing Dionisio, 410 U.S. at 5-7 (“Courts have consistently refused to accord Fourth Amendment
protection to non-testimonial evidence such as photographs of a person, his or her handwriting,
and fingerprints. Thus, the photographs and fingerprinting, alone, would not likely constitute a
search for purposes of the Fourth Amendment.”) (citation omitted). And the Supreme Court has
suggested that a brief seizure, based on reasonable suspicion, that includes the collection of
information that is regularly exposed to the public, could be permissible. Hayes, 470 U.S. at 816-
817; see also Dionisio, 410 U.S. at 14 (explaining that “[n]o person can have a reasonable
expectation that others will not know the sound of his voice, any more than he can reasonably
expect that his face will be a mystery to the world”).
Further, although the case did not involve police contact, this Court has also held that
“[t]here is no reasonable expectation of privacy in one’s fingerprints.” Nuriel v Young Women’s
Christian Ass’n of Metro Detroit, 186 Mich. App. 141, 146; 463 NW2d 206 (1990); see also
People v Hulsey, 176 Mich. App. 566, 569; 440 NW2d 59 (1989), citing Dionisio, 410 U.S. 14-15.
Also, photographing a person as they appear in public does not generally violate any reasonable
expectation of privacy. Sponick v Detroit Police Dept, 49 Mich. App. 162, 198-199; 211 NW2d
674 (1973); Fry v Ionia Sentinel-Standard, 101 Mich. App. 725, 728-729; 300 NW2d 687 (1980);
see also 3 Restatement Torts 2d, § 652d.
It is therefore not clearly established in the law that fingerprinting and photographing
someone during the course of an otherwise valid investigatory stop violates the Fourth
Amendment. In fact, prior statements from the United States Supreme Court and this Court
suggest that such a procedure would be permissible under the Fourth Amendment if the initial
stop was justified by a reasonable suspicion. We therefore conclude that Bargas and
VanderKooi were entitled to the protection of qualified immunity regarding defendant’s Fourth
Amendment claims.
-14-
D. FIFTH AMENDMENT RIGHTS
In relevant part, the Fifth Amendment of the United States Constitution provides as
follows:
No person shall . . . be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation. [US Const, Am V.]
The Fifth Amendment is applicable “to the states through the Fourteenth Amendment, US Const,
Am XIV.” AFT Mich v Michigan, 497 Mich. 197, 217; 866 NW2d 782 (2015). A “ ‘taking’ can
encompass governmental interference with rights to both tangible and intangible property,” and
“[t]he term ‘property’ encompasses everything over which a person may have exclusive control
or dominion.” Id. at 216, 218 (quotation marks and citation omitted). “In order to prevail on a
takings claim, a claimant first must demonstrate a cognizable interest in the affected private
property.” Mich Soft Drink Ass’n v Dep’t of Treasury, 206 Mich. App. 392, 402; 522 NW2d 643
(1994), lv den 448 Mich. 898 (1995). “The Constitution neither creates nor defines the scope of
property interests compensable under the Fifth Amendment.” Maritrans Inc v United States, 342
F3d 1344, 1352 (CA Fed, 2003). Rather, “existing rules and understandings and background
principles derived from an independent source, such as state, federal, or common law, define the
dimensions of the requisite property rights for purposes of establishing a cognizable taking.” Id.
(quotation marks and citation omitted).
Plaintiff argued before the trial court that the P&P procedure constituted an unlawful
taking of his “image or likeness” without just compensation. This Court and the Michigan
Supreme Court have recognized a common-law right of privacy that protects against various
types of invasions of privacy including the “[a]ppropriation, for the defendant’s advantage, of the
plaintiff’s name or likeness.” Battaglieri v Mackinac Ctr For Pub Policy, 261 Mich. App. 296,
300; 680 NW2d 915 (2004), quoting Tobin v Mich Civil Serv Comm, 416 Mich. 661; 331 NW2d
184 (1982) (quotation marks and emphasis omitted). Yet, “causes of action for violations of
such a right stem from ‘the interest of the individual in the exclusive use of his own identity, in
so far as it is represented by his name or likeness, and in so far as the use may be of benefit to
him or to others.’ ” Id. at 261 Mich App at 300–301, quoting 3 Restatement Torts, 2d, § 652C,
comment a. Therefore, a person’s likeness and identity “in so far as the use may be of benefit to
him or to others” amounts to “property.” See AFT Mich, 497 Mich. at 216. “To generate a
compensable taking, the government must assert its authority to seize title or impair the value of
property.” Id. at 218.
In this case, plaintiff made no argument that the value of his likeness was impaired or that
any defendant seized title to his likeness. Defendants did not interfere with plaintiff’s ability to
use his identity or likeness to benefit plaintiff or others and did not prevent plaintiff from
carrying out any future endeavors to benefit from his likeness. In addition, plaintiff’s
photographs and fingerprints were obtained under the police power rather than power of eminent
domain. See Bennis v Michigan, 516 U.S. 442, 452; 116 S. Ct. 994, 1001; 134 L. Ed. 2d 68 (1996)
(“The government may not be required to compensate an owner for property which it has already
lawfully acquired under the exercise of governmental authority other than the power of eminent
domain.”). Plaintiff’s counsel admitted to uncovering no caselaw stating that police conduct in
-15-
photographing and fingerprinting person for investigatory purposes constituted a governmental
taking. Thus, Bargas and VanderKooi were entitled to the protection of qualified immunity with
respect to plaintiff’s Fifth Amendment claims.
E. CONCLUSION
The alleged constitutional infirmities of the P&P procedure and the rights asserted by
plaintiff were not clearly established in view of the preexisting law. See White v Pauly, ___ US
___, ___; 137 S. Ct. 548, 552; 196 L. Ed. 2d 463 (2017) (“As this Court explained decades ago, the
clearly established law must be ‘particularized’ to the facts of the case. Otherwise, [p]laintiffs
would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified
liability simply by alleging violation of extremely abstract rights.”) (quotation marks and citation
omitted; alterations in White). Bargas and VanderKooi were therefore entitled to the protection
of qualified immunity and to summary disposition under MCR 2.116(C)(7).6
III. MUNICIPAL DEFENDANT
Plaintiff also argues that the trial court erred by granting summary disposition in favor of
the city on plaintiff’s claim for municipal liability. We disagree.
We review de novo a trial court’s grant of summary disposition. See Innovation Ventures
v Liquid Mfg, 499 Mich. 491, 506; 885 NW2d 861 (2016). The trial court granted the city’s
motion for summary disposition under MCR 2.116(C)(10); therefore, the following standards
apply:
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
When evaluating a motion for summary disposition under MCR 2.116(C)(10), a
trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties . . . in the light most favorable to the party
opposing the motion. Where the proffered evidence fails to establish a genuine
issue regarding any material fact, the moving party is entitled to judgment as a
matter of law. [Id. at 507 (quotation marks and citation omitted; alteration in
original).]
“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt
to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v
Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468 (2003). Moreover,
6
We note also that there was no evidence presented to the trial court that VanderKooi
participated in the P&P of plaintiff or ordered Bargas to perform the P&P. To the contrary,
Bargas testified at his deposition that it was his decision to perform the P&P. Consequently,
even apart from the application of qualified immunity, the evidence presented to the trial court
would not support plaintiff’s claim against VanderKooi, and VanderKooi would be entitled to
summary disposition under MCR 2.116(C)(10).
-16-
When a motion under subrule (C)(10) is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his or
her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
specific facts showing that there is a genuine issue for trial. If the adverse party
does not so respond, judgment, if appropriate, shall be entered against him or her.
[MCR 2.116(G)(4).]
Under 42 USC § 1983, a municipality may be held liable for unconstitutional policies,
but § 1983 does not provide for respondeat superior liability. Payton v Detroit, 211 Mich. App.
375, 398; 536 NW2d 233 (1995). Accordingly, “[a] municipality cannot be held liable under
§ 1983 solely because it employs a tortfeasor, and, “in order to sustain a cause of action against a
municipality under § 1983, a plaintiff must show that an action pursuant to official municipal
policy of some nature caused a constitutional tort.” Id. (quotation marks and citation omitted).
In order for a municipality to be liable, a plaintiff must show that an official municipal policy or
custom caused his injury. Connick v Thompson, 563 U.S. 51, 60–61; 131 S. Ct. 1350, 1359; 179 L
Ed 2d 417 (2011); Los Angeles Co, Cal v Humphries, 562 U.S. 29, 30-31, 36; 131 S. Ct. 447, 449,
452; 178 L. Ed. 2d 460 (2010). “Official municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick, 563 at US 61.
In this case, plaintiff argues that the city has a policy of requiring P&Ps of “innocent
pedestrians who do not happen to have ID on them.” In support of this contention, plaintiff
alleges that VanderKooi was involved in eleven incidents over five years where persons
“innocent of any wrongdoing,” including plaintiff, were subject to the P&P procedure, and
another incident where a person was only photographed. The following pieces of documentary
evidence submitted to the trial court make reference to this alleged policy or custom:
1. The city’s answer to a request for admission, in which the city stated in relevant part:
[O]fficers taking photos and thumbprints of individuals is a custom or practice of
the City of Grand Rapids and has been for decades. The custom or practice has
changed over those years with the evolution of technology. . . . [A]lthough it is
primarily a thumbprint, another finger or fingers might be printed instead of or in
addition to a thumb. . . . A photograph and print might be taken of an individual
when the individual does not have identification on them and the officer is in the
course of writing a civil infraction or appearance ticket. A photograph and print
might be taken in the course of a field interrogation or a stop if appropriate based
on the facts and circumstance of that incident.
2. Bargas’s deposition testimony, in which he agreed that he performed the P&P
procedure in accordance with departmental policy.
3. VanderKooi’s deposition testimony, in which the following colloquy occurred between
VanderKooi and plaintiff’s counsel:
Q. Okay. So, you would agree with the statement that police officers
taking photographs and thumbprints known as P and P of individuals with whom
-17-
they made contact is a commonly known longstanding custom and practice of the
Grand Rapids Police Department?
A. When I started in 1980 they were doing P and P’s yes.
4. An excerpt from the Grand Rapids Police Manual of Procedures (dated 2004) that
contain the following statements relevant to the P&P procedure:
3. Officers issuing appearance tickets shall:
* * *
b. Picture and print all subjects without good identification.
5. An excerpt from the Grand Rapids Police Department Field Training Manual (dated
2009) that contains the following statements relevant to the P&P procedure:
Under the heading FIELD INTERROGATIONS:
5. Field Interrogation reports
* * *
d. Disposition of suspect (arrest, picture and print, released, etc).
B. TRAINING CONSIDERATIONS
* * *
9. Picture and print procedures.
6. An excerpt from the same Field Training manual related to traffic violations that lists
the actions an officer may take when a motorist is driving with their driver’s license suspended,
revoked, or denied and states in relevant part:
(3) Issue citation and obtain a picture and print or arrest.
7. An excerpt from the Grand Rapids Police Department Patrol Sergeant Field Training
Tasks Manual (which we note indicates that it was revised in 2013, after the incident in question)
that provides in relevant part:
TRAFFIC/ACCIDENT PROCEDURES
* * *
3) Picture and Prints.
a) Carry a Digital Camera and related supplies.
-18-
b) Photograph subject clearly and take a readable thumbprint.
(1) Record on P&P card, Subject Identifier (name,
race, sex, etc). Include License Plate in picture if
driver or occupant of vehicle.
We conclude that this evidence does not suffice to show that any alleged violation of
plaintiff’s constitutional rights was the result of an official municipal policy or custom. Plaintiff
argues in his brief on appeal that the trial court erred when it failed “to recognize that the custom
and practice that [plaintiff] challenges is not the taking of prints and pictures, generally, but the
custom and practice of taking prints and pictures of innocent citizens,” specifically the P&P of
persons taken in the course of a field interrogation or stop. However, the documentation relied
upon by plaintiff does not indicate that the city has a policy of requiring P&Ps during field
interrogations and stops. The only references to P&P with respect to field interrogations and
stops, as opposed to the writing of “appearance tickets” or citations for driving with a suspended,
revoked, or denied driver’s license, are found in the guidelines for describing the disposition of
the subject in the field interrogation report and the reference to “training considerations” in the
Field Training Manual. Nothing about these references instruct GRPD officers to take P&Ps
during every field interrogation or stop or every such encounter where the subject lacks official
identification or to P&P “innocent citizens.” In fact, the majority of the references to the use of
the P&P procedures involve its use during the issuance of citations that do not result in arrest; the
issuance of these citations would involve, absent bad faith on the part of the issuing officer, at
least a good-faith belief that probable cause existed to suspect that an ordinance or statute was
violated. See MCL 257.727c; MCL 764.1d; MCL 764.9f; Detroit v Recorder’s Court Judge,
Traffic and Ordinance Div, 85 Mich. App. 284, 292; 271 NW2d 202 (1978). Further, the Patrol
Sergeant Field Training Tasks Manual, to the extent it is even relevant to events that occurred
before its revision date, discusses P&Ps not in the context of field interrogations or stops, but
rather in the section labelled “TRAFFIC/ACCIDENT PROCEDURES”.
We conclude that the action that plaintiff alleges to have caused the deprivation of his
rights, i.e., a P&P during a field interrogation or stop, did not “implement[] or execute[] a policy
statement, ordinance, regulation, or decision officially adopted and promulgated” by the city,
whether through GRPD or otherwise. Monell, 436 U.S. at 690. We also conclude that, even
viewing the evidence in the light most favorable to plaintiff, see Innovation Ventures, 499 Mich.
at 507, plaintiff did not establish a genuine issue of material fact that his alleged deprivation was
caused by an unwritten custom or policy “so persistent and widespread as to practically have the
force of law.” Connick, 563 at US 61.
Contrary to plaintiff’s contention, the city has not admitted that plaintiff was subjected to
a P&P as a result of a custom or policy. The city did admit that the P&P procedure in general
exists and did use the words “custom or practice.” However, the city also stated that a P&P was
discretionary and dependent on the particular facts of the incident in question: “A photograph
and print might be taken in the course of a field interrogation or a stop if appropriate based on
the facts and circumstance of that incident.” Further, Bargas’s deposition testimony, read in
context, indicates that he agreed that his taking of plaintiff’s photograph and fingerprints was “in
keeping” with departmental policy; Bargas also testified that he made the decision to P&P
plaintiff based on the particular circumstances of the case, specifically that he did not believe
-19-
plaintiff’s claim of identity (apparently based at least in part on Bargas’s belief that plaintiff
could not have received a tattoo in Grand Rapids if he was under 18), the fact that previous
burglaries from cars had been reported in that parking lot, and his belief that latent prints had
been taken from the previous burglaries that could either support the conclusion that plaintiff was
a suspect in the burglaries or eliminate him as a suspect. Nothing in Bargas’s testimony
indicates that he was following a custom or policy that had the force of law when he performed a
P&P on plaintiff. And VanderKooi’s testimony similarly reveals his individualized choices to
perform P&Ps or to order them performed in the cases identified by plaintiff.7
“Where a plaintiff claims that the municipality has not directly inflicted an injury, but
nonetheless has caused an employee to do so, rigorous standards of culpability and causation
must be applied to ensure that the municipality is not held liable solely for the actions of its
employee.” Bd of Co Comm’rs of Bryan Co, Oklahoma, 520 U.S. 397, 405; 117 S. Ct. 1382; 137 L
Ed 2d 626 (1997). In this case, even assuming that plaintiff could demonstrate a violation of his
rights, plaintiff cannot show that the city “specifically directed” Bargas to violate plaintiff’s
rights. Id. at 406. Not every constitutional violation by an officer in the field supports a finding
of municipal liability for his employer; “a local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 693. We therefore
conclude that plaintiff failed to raise a genuine issue of material fact concerning whether
Bargas’s action was taken “under color of some official policy” whether written or unwritten,
when the most that can be gleaned from the evidence presented to the trial court was that the
P&P procedure was available for use by GRPD officers and could, depending on particularized
circumstances, be used during the field interrogation of a person who was never arrested or
charged with a crime. The trial court properly granted summary disposition in favor of the city
under MCR 2.116(C)(10).
IV. PLAINTIFF’S EXPERT WITNESS
Finally, plaintiff argues that the trial court erred by granting defendants’ motion to strike
Dr. Terrill’s testimony. We disagree. We review for an abuse of discretion a trial court’s
determinations regarding “[w]hether a witness is qualified to render an expert opinion and the
actual admissibility of the expert’s testimony.” Tate ex rel Estate of Hall v Detroit Receiving
Hosp, 249 Mich. App. 212, 215; 642 NW2d 346 (2002). “A trial court does not abuse its
discretion when its decision falls within the range of principled outcomes.” Rock v Crocker, 499
Mich. 247, 260; 884 NW2d 227 (2016).
7
As stated above, VanderKooi did not order Bargas to perform the P&P. Nor did VanderKooi’s
testimony support the inference that Bargas was acting according to the policy alleged by
plaintiff, as VanderKooi testified to his belief that Bargas had “consensually obtained” plaintiff’s
fingerprints.
-20-
MRE 702 governs expert testimony and provides as follows:
If the court determines that scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
MRE 702 “requires the circuit court to ensure that each aspect of an expert witness’s
testimony, including the underlying data and methodology, is reliable,” and it “incorporates the
standards of reliability that the United States Supreme Court articulated in Daubert v Merrell
Dow Pharm, Inc,” 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Elher v Misra, 499
Mich. 11, 22; 878 NW2d 790 (2016). Daubert requires that the trial court ensure all scientific
testimony is relevant and reliable. Id. at 22-23. Although not dispositive, absence of supporting
literature “is an important factor in determining the admissibility of expert witness testimony.”
Id. at 23. Notably, “it is generally not sufficient to simply point to an expert’s experience and
background to argue that the expert’s opinion is reliable and, therefore, admissible.” Id.
(quotation marks and citation omitted).
In Kumho Tire Co, Ltd v Carmichael, 526 U.S. 137, 152; 119 S. Ct. 1167, 1176; 143 L. Ed.
2d 238 (1999), the United States Supreme Court held that “an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” In other
words, Daubert’s general gatekeeping function applies to all expert testimony—whether the
expert relies on scientific principles or “skill- or experience-based observation.” Id. at 151-152.
However, “[t]he trial court must have the same kind of latitude in deciding how to test an
expert’s reliability, and to decide whether or when special briefing or other proceedings are
needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant
testimony is reliable.” Id. at 152. “[W]hether Daubert’s specific factors are, or are not,
reasonable measures of reliability in a particular case is a matter that the law grants the trial
judge broad latitude to determine.” Id. at 153.
The trial court did not abuse its discretion in striking Dr. Terrill’s proposed expert
testimony concerning the reasonableness of Bargas’s actions in the instant case. Plaintiff cites to
numerous cases in support of his argument that expert testimony can be used to “educate the trier
of fact on police methods and procedures, patterns of expected police response to given
situations, and whether those are legal or illegal.” However, none of these cases stand for the
proposition that expert testimony that invades the province of the jury by making a legal
conclusion is permissible. “The opinion of an expert may not extend to the creation of new legal
definitions and standards and to legal conclusions.” Lenawee Co v Wagley, 301 Mich. App. 134,
160-161; 836 NW2d 193 (2013). Expert witnesses may not invade the province of the jury and
are “not permitted to tell the jury how to decide the case.” Carson Fischer Potts & Hyman v
Hyman, 220 Mich. App. 116, 122-123; 559 NW2d 54 (1996).
-21-
In this case, Dr. Terrill’s opinion that Bargas’s conduct was unreasonable was a legal
conclusion based on Terrill’s own interpretation of the same facts that a jury would be tasked
with interpreting. See DeMerrell v Cheboygan, 206 Fed Appx 418, 426-427 (CA 6, 2006)
(holding that “Plaintiff–Appellant’s expert testified as to a legal conclusion because he stated
that “it was objectively unreasonable for Officer White to shoot Mr. DeMerrell” and that the
expert made the following other improper legal conclusions: (1) “a reasonable officer on the
scene would not have concluded at the time that there existed probable cause that Mr. DeMerrell
posed a significant threat of death or serious physical injury to the officer or others” and (2) “use
of deadly force by [Officer White] was improper and unnecessary”); Hygh v Jacobs, 961 F2d
359, 364 (CA 2, 1992) (comparing expert testimony that a police officer’s “conduct was not
‘justified under the circumstances,’ not ‘warranted under the circumstances,’ and ‘totally
improper’ ” to improper expert testimony that a person was negligent and holding that the expert
“testimony regarding the ultimate legal conclusion entrusted to the jury crossed the line and
should have been excluded”).8
Further, although plaintiff does not present argument on this issue, much of Dr. Terrill’s
testimony related to plaintiff’s abandoned equal protection claim and was therefore not relevant
to the issues at hand. MRE 401. The trial court did not abuse its discretion in striking Dr.
Terrill’s testimony. Further, even if Dr. Terrill’s testimony was stricken in error, nothing in his
testimony would alter our conclusions in Parts II and III, above. Any error in the trial court’s
granting of defendants’ motion to strike was therefore harmless. See Lewis v LeGrow, 258 Mich
App 175, 200; 670 NW2d 675 (2003); MCR 2.613(A).
Affirmed.
/s/ Mark T. Boonstra
/s/ Colleen A. O’Brien
Wilder, P.J., did not participate.
8
Lower federal court decisions “are not binding on state courts” but may be persuasive.
Bienenstock & Assoc, Inc v Lowry, 314 Mich. App. 508, 515; 887 NW2d 237 (2016) (quotation
marks and citation omitted).
-22-