DENISHIO JOHNSON, Plaintiff-Appellant, and THE AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Amicus Curiae, v. CURT VANDERKOOI, ELLIOT BARGAS, and CITY OF GRAND RAPIDS, Defendants-Appellees.
No. 330536
STATE OF MICHIGAN COURT OF APPEALS
May 23, 2017
FOR PUBLICATION 9:00 a.m. Kent Circuit Court LC No. 14-007226-NO
Before: WILDER, P.J., and BOONSTRA and O‘BRIEN, JJ.
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
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
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 tattoоs. 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 thаt Bargas and Edgcombe explained what had occurred, that he approved of Bargas‘s actions, and that he then drove away. On the following day, VanderKooi requested that plaintiff‘s fingerprints be compared with any latent prints found at the scene of the other larcenies from vehicles in the area. According to VanderKooi, either there was no match between the prints or the quality of the prints was inadequate to make a
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
In Count II, plaintiff raised a municipal liability claim against the city under
On September 3, 2014, defendants filed their answer to the complaint and affirmative defenses. The following affirmative defenses were raised: (1) plaintiff failed to state a claim upon which relief could be granted; (2) the initial contact was a consensual police-citizen encounter; (3) reasonable suspicion supported the initial stop and the actions that followed; (4) the initial stop was reasonable; (5) the actions were not discriminatory or based on race; (6) Bargas and VanderKooi were entitled to qualified immunity; (7) plaintiff consented to some or all of defendants’ actions; and (8) any claimed damages were caused, in whole or in part, by plaintiff‘s own actions.
On September 11, 2015, the city and the individual defendants filed separate motions for summary disposition. Bargas and VanderKooi argued that they were entitled
The city argued that it was entitled to summary disposition under
In response, plaintiff stated that he was abandoning his equal protection and
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. 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 evidencе and that “none of the
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 thе 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
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
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 protected under the common law right to privacy.” It therefore held that summary disposition was appropriate
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
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
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
B. QUALIFIED IMMUNITY GENERALLY
“Qualified immunity is an established federal defense against claims for damages under
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their cоnduct 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 US 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 US 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 US 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 US 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 US 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 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
In this сase, 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 US 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
A person is liable under
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, § 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
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.
19. Plaintiff Johnson‘s constitutionally protected rights that Defendant Bargas and VanderKooi violated include the following:
- His right to fair and equal treatment guaranteed and protected by the Equal Protection Clause of the Fourteenth Amendment.
- His rights under the Fourth and Fourteenth Amendments to be free from unlawful search and seizure.
- His rights under the Fifth Amendment which bars the taking of private property for public use without just compensation.
- His right to privacy under the U.S. Constitution;
- His rights protected by
42 U.S.C. § 1981 and42 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
And that‘s our point, is you have to be careful when you‘re going to take somebody‘s pictures or prints. . . .
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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.
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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 . . . .
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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.
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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 prоcedure, 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);
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 establishеd, 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 US 27, 33; 121 S Ct 2038, 2042; 150 L Ed 2d 94 (2001). See also United States v Jacobsen, 466 US 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 US 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 US 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
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 US 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 US 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 US at 15.
In Hayes v Florida, 470 US 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 reasоnable suspicion that the 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 US 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 US 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 US 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 US 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 US 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 seаrch 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 US at 816-817; see also Dionisio, 410 US 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
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 concludе that Bargas and VanderKooi were entitled to the protection of qualified immunity regarding defendant‘s Fourth Amendment claims.
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,
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,
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 nоt 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 US 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 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
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
A motion under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint. When evaluating a motion for summary disposition underMCR 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, 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. [
Under
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 incidеnts 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:
- 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.
- Bargas‘s deposition testimony, in which he agreed that he performed the P&P procedure in accordance with departmental policy.
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VanderKooi‘s dеposition 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 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.
- 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.
- 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.
- 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.
- 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 quеstion) that provides in relevant part:
TRAFFIC/ACCIDENT PROCEDURES
* * *
3) Picture and Prints.
a) Carry a Digital Camera and related supplies.
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
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 US 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, sрecifically that he did not believe 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
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 outcоmes.” Rock v Crocker, 499 Mich 247, 260; 884 NW2d 227 (2016).
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.
In Kumho Tire Co, Ltd v Carmichael, 526 US 137, 152; 119 S Ct 1167, 1176; 143 L Ed 2d 238 (1999), the
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).
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
Affirmed.
/s/ Mark T. Boonstra
/s/ Colleen A. O‘Brien
Wilder, P.J., did not participate.