Plaintiff Lorraine Bills appeals from the district court’s grant of summary judgment for the defendants. The case had previously been dismissed by the district court after a finding of qualified immunity, but this court reversed in part, in Bilis v. Aseltine,
I
In the summer of 1987, Sergeant Dennis Aseltine of the Pinckney, Michigan, Police Department obtained information that plaintiffs son, Charles Sutton, was stealing radar detectors and that his mother and stepfather, Dennis Bills, were selling them in the parking lot of the General Motors (“GM”) Proving Grounds. Aseltine passed this information on to William Meisling, a security officer at GM, who informed Aseltine that GM was already investigating Mr. Bills concerning the theft of GM property. Aseltine had also
On August 20, 1987, Chief Larry Owen of the Unidella Township Police called and told Aseltine that he had been notified that a stolen Kubota-brand generator was at the Billses’ house. Aseltine met with Owen and his informant, who told Aseltine that he had also seen a large quantity of GM property on the premises. Aseltine was confident of the informant’s reliability, so he proceeded to obtain a search warrant for the Kubota generator; he did not seek a search warrant for GM property because he felt he lacked sufficient probable cause. The warrant authorized a search of the Billses’ home, garage, and adjoining shed, and also authorized the seizure of the Kubota generator.
Remembering that GM was also investigating the Billses, Aseltine called and invited Meisling to accompany the police in executing the search warrant. Aseltine also obtained the assistance of Chief Owen and officers from the Unidella Township, Hamburg Township, Livingston County and Pinckney police forces.
Charles Sutton answered the door (plain- ■ tiff and her husband were not at home) and was served the warrant. Sutton immediately led Aseltine to the Kubota generator in the shed, while the other officers executed a protective sweep to secure the house. Police spotted a Yamaha-brand generator near the Kubota model, and a check of police records revealed that it was stolen. Officer Gawron of Hamburg Township was dispatched to procure a warrant for its seizure.
Meisling arrived shortly after the Kubota generator was found and seized. He accompanied the officers as they conducted a “plain view” survey of the house while they waited for Gawron to return with the search warrant. They discovered large quantities of GM parts and equipment,
The next morning, Meisling contacted the Michigan State Police about recovering from the Billses’ home what he suspected was stolen GM property. Meisling and State Trooper Darnell Seering, a friend of Meis-ling, met with a Livingston County prosecutor to prepare an affidavit to support a search warrant. Meisling related how Asel-tine had invited him to go along on the earlier search and that he had observed and photographed GM property in the Billses’ home.
A second search warrant was issued on the sole basis of Meisling’s affidavit, and on August 21, Seering, Meisling, two local police officers, and two GM employees went to the Billses’ residence. They seized a variety of auto parts and equipment. Mr. Bills was charged with receiving and concealing stolen property, but a state court suppressed all of the evidence seized on August 21 as being tainted by the overly broad search the day before.
Lorraine Bills sued all the police officers involved in the searches, their respective municipalities, and the state of Michigan, under 42 U.S.C. §§ 1983, 1985, and 1988, alleging infringement of her rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. She also claimed violations of the Michigan Constitution and state law causes of action for trespass and negligent or intentional infliction of emotional distress. The district court granted summary judgment for the defendants on all of Bills’s claims. On appeal, the Sixth Circuit reversed the district court’s finding of qualified immunity because “genuine issues of material fact exist concerning the reasonableness of the conduct of the police in inviting a private citizen into the dwelling of another for purposes unrelated to the execution of the search warrant.” Bills I,
Upon remand, in an order dated September 29, 1992, the district court dismissed Bills’s claims against all of the defendants except Aseltine because the court found that all of those defendants were protected by qualified immunity. The court noted that government officials are entitled to qualified immunity while performing discretionary functions so long as their actions do not violate clearly established rights of which any reasonable official would have known. See Harlow v. Fitzgerald,
The district court sent the case to a jury on the issue of whether Aseltine had “unreasonably exceeded the scope of the warrant” by procuring “a private person to tour plaintiff’s home with a camera for purposes utterly unconnected with the search warrant they had already executed.” The jury returned a verdict for the defendant.
II
Bills raises a variety of issues on appeal. She first contends that the district court erred in granting summary judgment to defendants on her claims arising under the state constitution. She claims that the district court erred in granting qualified immunity to all the officers except Aseltine. Bills argues that the district court abused its discretion in its use of special interrogatories, by instructing the jury on the Fourth Amendment and failing to give two of plaintiff’s proposed instructions, and in allowing the defendants’ witnesses to refer to property observed during the search as “stolen” or “GM property.” Last, she asserts that the district court erred in denying her motion for a directed verdict. We shall deal with each contention in turn.
A. Michigan law governing infringement of state constitutional rights.
The district court dismissed Bills’s state law claims because it found that Michigan law does not recognize a cause of action against individuals for violations of the state constitution. A district court’s conclusions of law are subject to de novo review on appeal. United States v. Braggs,
The parties agree that the question of whether a cause of action exists for a violation of the state constitution is controlled by the Michigan Supreme Court’s decision in Smith v. Dep’t of Public Health,
The United States Supreme Court in Mo-nell permitted liability only where the unconstitutional action “implements or executes a
However, this court has already ruled that Bills has no cause of action because she has failed to satisfy the Monell standard for municipal liability:
Neither is there any 'proof in the record concerning the existence of municipal policies or customs that might have resulted in the alleged unconstitutional conduct in this case. Instead, plaintiff merely argues that, because [Aseltine and Owen] were officers of some seniority within their police departments, they must be responsible for policy.... This is mere argument, not evidence.... Plaintiff offers nothing more than the inference she draws from a single, allegedly unconstitutional action. This is not sufficient to fix liability on the municipal defendants.
Bills I,
B. Qualified immunity of the police officers other than Aseltine.
Bills objects to the district court’s granting of summary judgment to the other police officers on the basis of qualified immunity. “Resolution of qualified immunity is purely a question of law,” Poe v. Haydon,
The trial court is ultimately responsible for resolving the issues raised by such a defense, and the case should go to trial only if there is a genuine issue of material fact upon which the qualified immunity turns. Heflin v. Stewart County,
1
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
The constitutional or statutory right alleged to have been violated must have been “clearly established” in a particularized sense:
*602 The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. 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 light of pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton,
Additionally, “the district court must decide the purely legal question of whether the law at the time of the alleged action was clearly established in favor of the plaintiff.” Dominque v. Telb,
The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs 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.
Anderson,
The Second Circuit dealt with a case similar to this one in Ayeni v. Mottola,
Agent Mottola correctly asserts that there is no reported decision that expressly forbids searching agents from bringing members of the press in to a home to observe and report on their activities. He therefore argues that there is no clearly established rule prohibiting such an act. The argument lacks merit. It has long been established that the objectives of the Fourth Amendment are to preserve the right of privacy to the maximum extent consistent with reasonable exercise of law enforcement duties.... Mottola exceeded well-established principles when he brought into the Ayeni home persons who were neither authorized by the warrant ... nor serving any legitimate law enforcement purpose by being there. A private home is not a soundstage for law enforcement theatricals.
The Second Circuit cited Bills I for the proposition “that permitting the presence of a third party not assisting in a search may violate the Fourth Amendment.” Ayeni,
The full parameters of the role of private citizens in executing search warrants has not been completely, or clearly, defined. Clou-ston says they may assist, Ayeni
The issue with respect to the other officers is easier to resolve than for Aseltine because they did not affirmatively act to invite Meis-ling; their violation, if any, is that they failed to detect and prevent Meisling’s misconduct. The court in Bills I, like the Second Circuit in Ayeni, concluded that Meisling was not in the Billses’ home to aid in the search. Asel-tine admits as much, as the search warrant was only for the Kubota generator. However, it is unclear whether the attending officers knew or should have known that Meis-ling was not serving a Clouston-like function. This is the crucial question for purposes of their right to qualified immunity.
The qualified immunity standard in the context of the execution of a search warrant requires determination of whether a “reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Bills I,
The standard of objective reasonableness requires us to ask whether every “officer in the defendant’s position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct.” Brandenburg v. Cureton,
Bills makes several points in arguing that the attending officers should have known that Meisling was there illegally and not merely to assist the police.
The district court did not properly view the evidence to the benefit of the nonmoving party. Taking the inferences from these facts in the light most favorable to Bills, a reasonable well-trained officer might have been aware that Meisling was not assisting the police, but instead conducting an illegal search.
2
Defendants argue that the question of whether the other police officers were liable for violating Bills’s constitutional rights was nonetheless mooted when the jury found that Aseltine had not been unreasonable in inviting Meisling to enter the Billses’ residence. They contend that their liability can only be derivative from Aseltine’s. Resolution of the issue of mootness, however, depends upon whether the reasonableness of the accompanying officers’ conduct has already been resolved and thus constitutes collateral estop-pel. “The availability of collateral estoppel is a mixed question of law and fact which we review rite novo.” United States v. Sandoz Pharmaceuticals Corp.,
Collateral estoppel may be used defensively “to prevent a plaintiff from asserting a claim that the plaintiff has previously litigated and lost against another defendant.” Patrick v. South Central Bell Tel. Co.,
(1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; (2) determination of the issue must have been necessary to the outcome of the prior proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; (4) the party against whom [collateral] es-toppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding.
Detroit Police Officers Ass’n v. Young,
In this case, the trial below provided a final judgment on the merits and a full and fair opportunity to litigate the issue of Asel-tine’s liability, thus satisfying the third and fourth parts. The second, element of the test is also easily met — the jury’s determination of the reasonableness of Aseltine’s conduct was crucial to the outcome of the case, and it was the precise issue we remanded to the trial court to resolve. The critical issue is the first element: whether the jury’s conclusion that Aseltine’s invitation to Meisling was not unreasonable is determinative of the question of whether the other police officers’ failure to prevent Meisling’s actions was unreasonable.
We hold that Aseltine’s culpability is necessary to any liability of the other officers. Aseltine actively performed (invited Meisling to the search) what they merely failed to prevent, and he actually knew what they might only suspect. The officers’ alleged violations were, in essence, “lesser included offenses” of Aseltine’s, so that the jury’s finding that Aseltine acted reasonably must mean that there can be no liability for failing to prevent “reasonable” actions. Thus, we find that Bills is collaterally estopped from going to a jury on the reasonableness of the attending officers’ conduct. Since the officers did not act unreasonably, they are entitled to qualified immunity.
C. Propriety of the special interrogatories.
Bills argues that a special interrogatory on the verdict form did not state all the issues, was inaccurate, and consequently misled the jury. The verdict form provided to the jury stated: ,cWas it unreasonable under the circumstances for the defendant to invite William Meisling to enter plaintiff’s home on
Whether a court uses a special or general verdict rests in its discretion, as does the content and form of any interrogatories it chooses to submit. Portage II v. Bryant Petroleum Corp.,
The court below clearly used the latter. “Where special verdicts are involved, the jury’s sole function is to determine the facts; therefore, neither an instruction on the law nor a summary concerning their role in relation to the law was necessary.” Id. at 1521. The court’s twenty-four jury instructions discussed legal matters in detail, and also required the jury to apply the law to the facts. The verdict form served only to direct the jury’s attention to the most important issues: reasonableness, good faith, proximate cause, and damages.
Bills’s proposed interrogatory is admittedly more detailed, but asks a question that is only slightly different. The plaintiff emphasizes whether Aseltine unreasonably exceeded the scope of the search warrant, while the court focuses on whether Aseltine’s invitation was unreasonable. Undoubtedly, Bills would have preferred to remind the jury through the interrogatory that Meisling’s presence was beyond the scope of the search warrant for the generator. However, that is the job of Bills’s attorney at closing argument.
Bills cites several cases for the obvious proposition that special interrogatories must fairly present the relevant issues to the jury. Yet reasonableness, good faith, proximate cause and damage are the relevant issues. Further, the interrogatories must be considered in the context of the entire jury charge. United States v. Buckley,
D. The district court’s denial of Bills’s motion for a directed verdict.
At the close of the trial, plaintiff moved for a directed verdict because (1) Meisling was a trespasser as a matter of law; and (2) Aseltine “had not presented any defense to the claim that Meisling’s presence and photographic tour of the plaintiffs home, as permitted and facilitated by the police, was an unconstitutional intrusion.” Pet. Brief at 21. An appellate court reviews a ruling on a motion for directed verdict de novo. King v. Love,
The first part of Bills’s argument is merit-less because whether Meisling was a trespasser under state law was not dispositive, nor relevant, to Bills’s claim of a constitutional violation under 42 U.S.C. §§ 1983,1985, or 1986. The second part of the argument completely misinterprets the law. Bills claims that: “Aseltine was required to present some constitutional justification for Meisling’s intrusion. When the defendant failed to present any such evidence, the plaintiff was entitled to a directed verdict.” Pet. Brief at 25.
This assertion could not be more incorrect. The court in Bills I made it clear that Meis-ling’s presence alone would not justify a finding of liability:
*606 In this case, Meisling obviously had no warrant of his own, and his intrusion was separate and distinct from the police entry.... The matter does not end here, however, because the issue in this case is not whether Meisling’s photographic tour of the premises, per se, was unconstitutional....
Because Bills’s claim for a directed verdict has no legal foundation, the district court correctly denied her motion.
E. Sufficiency of Jury Instruction # 17 as to the Fourth Amendment and the court’s denial of Plaintiffs Proposed Instructions # 17 and # 18.
Plaintiff contends that the “entirety of the legal instruction to the jury on the Fourth Amendment requirements consisted of one sentence” and that it was a “totally improper, inaccurate, and incomplete statement of the law” because it “focuses entirely on the decision to ‘invite’ Meisling.” Pet. Brief at 26. The court’s instruction read as follows:
The question that you must decide is whether, under all of the circumstances, Sgt. Aseltine unreasonably exceeded the scope of his authority under the warrant by inviting William Meisling, a private citizen, to enter plaintiffs home during the execution of the warrant on August 20, 1987.
“The standard on appeal for a court’s charge to the jury is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.” Buckley,
Plaintiffs criticism of the above instruction lacks merit. First, the above sentence was only the second paragraph of the court’s very lengthy Jury Instruction # 17. Most importantly, its language mirrors that used by the Sixth Circuit in discussing the case:
Thus, the principal question in this case is whether the officers exceeded the scope of their authority under the warrant in inviting Meisling to conduct an inspection of a private dwelling they controlled....
.... Whether this breached the trust under which they held the premises in their complete command, or whether, stated another way, this unreasonably exceeded the scope of the warrant, is a question for a jury in this ease.
Bills I,
[T]he district court’s grant of summary judgment on the issue of the constitutionality of the search ... is REVERSED because genuine issues of fact exist concerning the reasonableness of the conduct of the police in inviting a private citizen into the dwelling of another for purposes unrelated to the execution of the search warrant.
Id. at 709.
Moreover, the two jury instructions proposed by plaintiff are wholly inappropriate and often redundant and inaccurate. A cursory review of Plaintiffs Proposed Instruction # 17 reveals it to be a short summary of plaintiffs argument, which concludes by stating: “Consequently, the principle [sic] issue in this case is whether or not the defendant exceeded the scope of the authority under the search warrant for the stolen generator by inviting Meisling to conduct an inspection of the plaintiffs home.” This statement does not differ significantly from the district’s actual instruction, or this court’s explanation of the pertinent issues in Bills I.
Additionally, Plaintiff’s Proposed Instruction # 18 is unnecessary and misleading. It first notes that Meisling was not lawfully in the Billses’ home, which is not legally relevant since Meisling is not a state actor and thus cannot violate the Fourth Amendment. A jury, however, could be misled into believing that a trespass by Meisling was necessarily a constitutional violation by Aseltine.
F. The district court’s decision to allow witnesses to use the terms “stolen” and “GM property.”
Bills asserts that the district erred by allowing defense witnesses repeatedly to characterize property seen in Bills’s home during the search as “stolen” or “GM property.” The plaintiff claimed that these references were prejudicial and inflammatory, and counsel duly objected at trial. A district court has wide latitude to admit evidence, and an appellate court will reverse only for an abuse of discretion. United States v. Rios,
In allowing testimony mentioning the GM property found in the Billses’ house, the district judge recognized that defense counsel was attempting to emphasize that the plaintiffs husband and son had been engaged in wrongdoing. However, the court considered this a permissible strategy, and' one that could backfire:
[A]s an experienced trial lawyer, you, you knew that, when you bring a case such as you brought, where ... you knew that there was going to be evidence that there was this stolen property in this house, that it shouldn’t come in as any surprise to you that the defendant’s going to, that’s all they’re going to do is talk about that stolen property.... [Y]ou can examine and say, well, you didn’t steal it, so why should you lose your job? ... And sometimes, sometimes that will, that will work for you, to your benefit, it [sic] it’s over exaggerated and things like that, see. But I can’t sterilize the case for you.
The judge specifically told plaintiffs counsel that he could ask Mrs. Bills if she had stolen any of the property in order to dispel any implication of wrongdoing by her. Bills’s real problem is that a jury might infer that she was culpable because of the unusually large number of items in her home and because her husband and son had in fact taken GM property; that is not an entirely unreasonable inference. Since much of the property was indeed “stolen” and “GM property,” plaintiff’s counsel could not claim that the terminology was inaccurate.
When we maximize the relevance, minimize the prejudice, and recognize the accuracy of the references to stolen property, we hold that the judge did not abuse his discretion by allowing the witnesses to refer to “stolen” and “GM property.” The information was relevant to the reasonableness of Aseltine’s actions because both he and Meis-ling claimed that they suspected that there was stolen property in the Billses’ home. The issue of stolen property also related to Mrs. Bills’s loss of her job, for which she sought damages. Further, there was a question of whether Mrs. Bills was or should have been aware of the activities of her husband and son. Although her complicity is irrelevant to whether Aseltine acted unreasonably in admitting Meisling to her home, it could relate to her claims of emotional distress allegedly suffered as a result of her privacy being invaded; a jury could conclude that one who knowingly harbors stolen property is less offended when it is eventually discovered by law enforcement personnel or civilians.
Ill
We hold that the district court properly granted summary judgment for defendants on Bills’s claims under the Michigan Constitution, because individuals cannot be liable under Michigan law for constitutional violations. Also, the district court correctly denied plaintiff’s motion for a directed verdict.
Last, we hold that the content and form of the district court’s general verdict form with special interrogatories, its decision to allow the defendants’ witnesses to refer to the property observed in the Billses’ home as “stolen” or “GM property,” and the court’s instructions to the jury were not abuses of discretion.
The judgment of the district court is therefore AFFIRMED.
Notes
. The police justified the large numbers of personnel based on talk in the community of automatic-weapons fire around the Billses’ home, the house’s location on five acres of land in the country, and the Billses' ownership of pit bulls and Doberman pinschers.
. A sampling: nine fire extinguishers, seventy-six sets of shock absorbers, sixteen cans of glass cleaner, an antenna for an electric vehicle, several alternators and starters, an impact wrench, and six fuel injectors.
. Obviously, the specific rule in Ayeni was not clearly established at the time of the search of Bills’s home.
. Plaintiff states that Officer Gawron actually drove Meisling to the Billses' home, thinking that he was present to look for “fuzzbusters.” Pet. Brief at 14. Consequently, she "knew she was procuring the presence of Meisling for purposes solely unrelated to the objects of the search warrant for the generator.” Ibid. However, the testimony of Meisling and Gawron suggests that Gawron merely led Meisling to the Billses' home, after Aseltine, the other officers, and Meisling met at the police station before the search.
. The instruction adds: "If the defendant aided or facilitated Meisling’s presence at the plaintiff's home in order to allow Meisling to search for evidence of a crime that was totally unrelated to the stolen generator then, in that event, the defendant violated the Fourth Amendment."