Cheryl Massa v. City of Livonia

STATE OF MICHIGAN

COURT OF APPEALS

CHERYL MASSA, DAMIAN MASSA, JR., UNPUBLISHED

ALISHA MASSA, NATHAN MASSA, and February 2, 2016

ROCHELLE MASSA,

Plaintiffs-Appellants,

v No. 324913

Ingham Circuit Court

CITY OF LIVONIA, SGT. MICHAEL LC No. 14-000984-CZ

MOCKERIDGE, SGT MICHAEL KINGSBURY,

SGT. PATRICK MOUG, DETECTIVE

O’LEARY, DETECTIVE TIMOTHY CHALK,

OFFICER LORA CLAYPOOL, UNKNOWN

POLICE OFFICERS, and LIVONIA POLICE

DEPARTMENT,

Defendants-Appellees.

Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

Plaintiffs appeal by right a November 10, 2014, trial court order granting defendants’

motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8) and (C)(10). For the

reasons set forth in this opinion, we affirm.

A. FACTS

This case arises from a search of plaintiffs’ residential home and property in Mason,

Michigan that defendant Livonia Police Department and the named individual defendant police

officers executed on May 23, 2012, pursuant to a valid search warrant. The search warrant was

issued following an investigation involving plaintiff Damian Massa Jr.’s shipping company and

allegations of organized theft of plastic shipping pallets used in the automotive industry. The

warrant authorized police to search “[t]he entire premises and curtilage and all storage areas.”

Plaintiffs do not dispute defendants’ assertion that the premises included a two-story single

family residence on a 15-acre plot of land that included two pole barns. The warrant authorized

police to seize a broad range of property including, among other things, business records,

vehicles, trailers, weapons and “[a]ny and all items purchased with proceeds gained through

criminal enterprise.”

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According to plaintiffs, at about 7:30 a.m. on May 23, 2012, pursuant to the warrant,

approximately 20 officers from defendant Livonia Police Department conducted a 14-hour

search of the Massa property. Plaintiffs Damian and Cheryl Massa and their daughter Alisha

Massa, a veterinary school student, were at home when police arrived. The three were informed

that they were not under arrest, but were detained at the home for the entire duration of the

search. Police allegedly refused to allow Alisha to attend a summer training position at

veterinary school and refused to allow her to call to inform the school to report her absence.

As police arrived, plaintiff Rochelle Massa, age 16, had just departed to drive to high

school. According to plaintiffs, Livonia officers in an unmarked vehicle pursued her. Unaware

that the unmarked vehicle was a police vehicle, Rochelle tried to speed away, but the officers

engaged in a high-speed chase until a Mason County marked patrol car effectuated a traffic stop.

The officers eventually allowed Rochelle to proceed to high school. In subsequent court filings,

plaintiffs alleged that officers approached Rochelle with guns drawn, forced her out of her

vehicle, and required her to sit in the police cruiser before allowing her to proceed to school.

In addition, at some point, plaintiff Nathan Massa age 19, arrived home from his college

dorm while police were conducting the search. Plaintiffs alleged that, upon his arrival, police

surrounded his pickup truck with guns drawn and ordered Nathan inside the house where they

detained him for the duration of the search. Police refused to allow Nathan to attend a job

interview and they allegedly searched his vehicle and left personal belongings in the front yard.

According to plaintiffs Damian, Cheryl, Alisha, and Nathan, they were detained inside

the home for 14 hours where they were required to sit on a sofa “without food or water and

denied the use of a bathroom unless given permission and accompanied by an officer - - which

was mostly denied throughout the day.” Plaintiffs alleged that defendants refused to allow

Cheryl to call her attorney, refused to allow her to use her phone, and grabbed an iPad out of her

hand while she was sitting on the couch. Plaintiffs also alleged that defendants: left trash and

items strewn throughout the house, left food in the kitchen out to spoil, verbally harassed Alisha

by telling her that they owned everything in the house until she began “hysterically crying,”

threw plaintiffs’ fresh produce and meat into the dirt and left it to spoil and rot for hours,

forcefully removed televisions and electronics from the walls and homes “damaging both the

items and the structure of the home,” and intentionally tracked mud and water in the home.

On November 7, 2012, plaintiffs commenced this suit.1 Plaintiffs did not contest the

validity of the search warrant on its face, and instead alleged that the manner in which police

conducted the search violated their constitutional rights, constituted gross negligence and

amounted to tortious conduct. Thereafter, plaintiffs stipulated to dismiss all of their federal

claims. The state law claims in plaintiffs’ amended complaint were as follows:2 (1) violation of

1

The suit was eventually removed to federal court before plaintiffs stipulated to dismiss all of

their federal claims. The case was remanded to the Wayne Circuit Court before the court granted

defendants’ motion to change venue to Ingham Circuit Court.

2

Plaintiffs filed a second-amended complaint and added claims alleging violations of the state

constitution; however, the trial court granted defendants’ motion to strike the second-amended

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MCL 764.2a for failing to have a local officer accompany the Livonia officers during the search

outside Livonia’s jurisdiction; (2) gross negligence; (3) false arrest/false imprisonment; (4)

assault; (5) conversion; and (6) Intentional Infliction of Emotional Distress (IIED).

Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) (C)(8) and

(C)(10). Defendants argued that the City and Livonia Police Department were one entity that

was entitled to governmental immunity because the alleged wrongful conduct occurred when the

City was engaged in a governmental function. With respect to the individual officers, defendants

argued that the gross negligence and the intentional tort claims were barred by governmental

immunity. Defendants argued that the officers’ conduct was lawful and done in furtherance of

executing the search warrant and the officers did not act in bad faith during the search.

Defendants argued that claims involving the traffic stop of Rochelle failed where a

Mason County officer, as opposed to any of the named defendants, effectuated the traffic stop.

In addition, defendants argued that all claims against defendant Sergeant Michael Mockeridge

should be dismissed where he was not present at the Massa residence during the search.

Defendants attached Mockeridge’s affidavit in support of this argument wherein Mockeridge

averred that he was not present at the Massa residence during the search. Defendants also argued

that plaintiffs’ claim under MCL 764.21a failed where the statute did not authorize an

independent cause of action and where at least two deputies from the Ingham County Sheriff’s

Department accompanied the Livonia officers during the search. Defendants attached the

affidavit of defendant Sergeant Patrick Moug to support this argument.

On November 10, 2014, the trial court held a motion hearing and granted defendants’

motion for summary disposition in its entirety. The court treated the Livonia Police Department

and the City as one entity, explaining that the City was entitled to governmental immunity where

the general nature of the activity giving rise to the claims involved the governmental function of

maintaining a police department. The court held that plaintiffs claim under MCL 764.2a failed

where the statute did not authorize an independent cause of action and where Moug’s affidavit

was uncontested and showed that Ingham County officers participated in the search.

Next, the court dismissed defendant Mockeridge where his affidavit was undisputed and

established that he was not at the scene during the search and where there were no allegations

that Mockeridge acted in bad faith assuming, as plaintiffs’ argued, that he submitted the affidavit

in support of the search warrant. The court proceeded to grant summary disposition in favor of

the remaining individual officers, finding that plaintiffs’ claims were barred by governmental

immunity. The court held that the facts alleged could not amount to false arrest/imprisonment

where Michigan v Summers, 425 US 692; 101 S Ct 2587; 69 L Ed 2d 349 (1981), and Muehler v

Mena, 544 US 93; 125 S Ct 1465; 161 L Ed 2d 299 (2005), established a categorical rule that

officers may detain occupants of a home during the execution of a search warrant. Otherwise,

the alleged facts did not show unreasonableness.

complaint and the case proceeded on plaintiffs’ amended complaint. The motion to strike is not

at issue in this appeal.

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With respect to gross negligence, the court found that, at best, the alleged facts

established that the officers acted in a negligent or careless manner. Similarly, the court held that

the alleged facts failed to support any of the alleged intentional tort claims. The court found that

Ingham County officers effectuated the traffic stop of Rochelle, thus, that claim failed as to the

Livonia officers. On November 10, 2014, the court entered a written order granting summary

disposition in favor of defendants. This appeal ensued.

B. STANDARDS OF REVIEW

Plaintiffs contend that the trial court erred in granting summary disposition in favor of

defendants.

We review de novo a trial court’s ruling on a motion for summary disposition. Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The trial court granted summary

disposition pursuant to MCR 2.116(C)(7), (8) and (10). Summary disposition is proper under

MCR 2.116(C)(7) where a party enjoys immunity under the law. “In determining whether

summary disposition under MCR 2.116(C)(7) is appropriate, a court considers all documentary

evidence submitted by the parties, accepting as true the contents of the complaint unless

affidavits or other appropriate documents specifically contradict them.” Blue Harvest, Inc v.

Dep’t of Trans, 288 Mich App 267, 271; 792 NW2d 798 (2010). “If the facts are not in dispute

and reasonable minds could not differ concerning the legal effect of those facts, whether a claim

is barred by immunity is a question for the court to decide as a matter of law.” Id. (quotation

marks and citation omitted).

Summary disposition is proper under MCR 2.116(C)(8) where the alleged claims are “so

clearly unenforceable as a matter of law that no factual development could possibly justify

recovery.” Maiden, 461 Mich at 119 (quotation marks and citation omitted). Summary

disposition is proper under MCR 2.116(C)(10) where, when viewed in a light most favorable to

the non-moving party, “the proffered evidence fails to establish a genuine issue regarding any

material fact.” Id. at 120.

C. ANALYSIS

I. STATE CONSTITUTIONAL CLAIMS

At the outset, we note that plaintiffs dedicate a significant portion of their brief to arguing

the validity of their state constitutional claims. These arguments are baseless. Plaintiffs did not

allege any state constitutional claims in their amended complaint. Plaintiffs attempted to add

state constitutional claims to a second-amended complaint, but the circuit court granted

defendants’ motion to strike the second-amended complaint and indicated that it would proceed

to address defendants’ motion for summary disposition as to plaintiffs’ amended complaint.

Plaintiffs do not appeal the circuit court’s ruling on the motion to strike; thus, this appeal turns

on the claims set forth in plaintiffs’ amended complaint. The amended complaint contained a

gross negligence claim, tort claims, and a claim alleging a violation of MCL 764.2a. It did not,

however, contain any state constitutional claims. Moreover, as defendants correctly point out,

our Supreme Court has not recognized a private cause of action against a municipality or

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individual governmental employees based on an alleged violation of the state constitution. See

Jones v Powell, 462 Mich 329, 335; 612 NW2d 423 (2000).

II. MCL 764.2a

Plaintiffs alleged defendants violated MCL 764.2a, which provides in relevant part as

follows:

(1) A peace officer of a county, city, village, township, or university of

this state may exercise the authority and powers of a peace officer outside the

geographical boundaries of the officer’s county, city, village, township, or

university under any of the following circumstances:

***

(b) If the officer is enforcing the laws of this state in conjunction with a

peace officer of any other county, city, village, township, or university in which

the officer may be. [Emphasis added.]

Plaintiffs alleged that defendants, Livonia police officers, effectuated a search of their

home in Mason, Michigan, which is outside of Livonia’s jurisdiction. Plaintiffs alleged that

defendants did not conduct the operation in conjunction with local Mason authorities or Ingham

County Sheriff’s Deputies in violation of MCL 764.2a(1)(b).

The trial court properly granted summary disposition as to plaintiffs’ claim under MCL

764.2a. Plaintiffs fail to cite any authority to support that MCL 764.2a confers a private cause of

action on which plaintiffs can recover damages. Moreover, even if the statute did hypothetically

confer a private cause of action, the trial court properly granted summary disposition as to this

claim pursuant to MCR 2.116(C)(10).

Plaintiffs failed to submit any documentary evidence to counter Moug’s affidavit

averring that two Ingham County officers participated in the search. Where the burden of proof

at trial rests on a nonmoving party, in responding to a motion for summary disposition under

MCR 2.116(C)(10), the nonmoving party may not rest on the allegations in the pleadings, but

must “set forth specific facts showing that a genuine issue of material fact exists.” Quinto v

Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). “If the opposing party fails to

present documentary evidence establishing the existence of a material factual dispute, the motion

is properly granted.” Id. at 363. Here, plaintiffs failed to offer any documentary evidence in

response to Moug’s affidavit. Therefore, there were no facts to dispute that Ingham County

officers accompanied defendants during the search and the trial court properly dismissed any

claim under MCL 764.2a pursuant to MCR 2.116(C)(10). Quinto, 451 Mich at 363.

III. CLAIMS INVOLVING THE CITY

Before addressing the substance of plaintiffs’ claims against the City, we note that in the

lower court plaintiffs did not dispute that the Livonia Police Department and the City were one in

the same entities and the trial court treated both defendants as a single entity. Therefore, for

purposes of this appeal, we will refer to both entities collectively as “the City.”

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Under the Government Tort Liability Act (GTLA), MCL 691.1401 et seq., “[a]bsent a

statutory exception, a governmental agency is immune from tort liability when it exercises or

discharges a governmental function.” Maskery v Bd of Regents, 468 Mich 609, 613; 664 NW2d

165 (2003), citing MCL 691.1407(1). Because plaintiffs did not allege that a statutory exception

applied, if we determine that the City is a governmental agency that was discharging a

governmental function when its agents conducted the search, then the City was entitled to

governmental immunity under the GTLA. Id.

The City is a governmental agency. MCL 691.1401(a) defines “governmental agency” to

include “this state or a political subdivision,” and cities and municipal corporations are “political

subdivisions” for purposes of the GTLA. MCL 691.1401(d) (e).

Regarding whether the City was engaged in a “governmental function,” “[t]he term

‘governmental function’ is to be broadly construed, and the statutory exceptions are to be

narrowly construed.” Maskery, 468 Mich at 613. MCL 691.1401(b) provides:

‘Governmental function’ means an activity that is expressly or impliedly

mandated or authorized by constitution, statute, local charter or ordinance, or

other law. Governmental function includes an activity performed on public or

private property by a sworn law enforcement officer within the scope of the law

enforcement officer’s authority, as directed or assigned by his or her public

employer for the purpose of public safety.

In contrast, “[w]henever a governmental agency engages in an activity which is not expressly or

impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra vires

activity), it is not engaging in the exercise or discharge of a governmental function.” Ross v

Consumers Power Co, 420 Mich 567, 620; 363 NW2d 641 (1984).

In this case, the general activity giving rise to this suit involved the management,

operation and control of a police department, or more specifically, the department’s execution of

a facially-valid search warrant. Maintaining a police force and activity performed by a law

enforcement officer within the scope of his or her authority constitutes a governmental function.

Ross, 420 Mich at 625; MCL 691.1401(b). The officers were acting within their authority as law

enforcement officers when they executed the search warrant. Plaintiffs do not dispute that the

warrant was valid on its face. Thus, the officers had authority to execute the warrant.

Plaintiffs contend that because the officers allegedly engaged in tortious conduct and

gross negligence during execution of the search warrant, the City was not engaged in a

governmental function. This argument lacks merit. “To determine whether a governmental

agency is engaged in a governmental function, the focus must be on the general activity, not the

specific conduct involved at the time of the [alleged] tort.” Pardon v Finkel, 213 Mich App 643,

649; 540 NW2d 774 (1995) (emphasis added). Here, as discussed above, the general activity at

the time of the alleged torts and gross negligence involved police activity that was authorized by

a search warrant. Thus, the City was engaged in a governmental function for purposes of this

case. Id. Because plaintiffs’ did not allege that any statutory exceptions apply, the City was

entitled to immunity and the trial court did not err in granting summary disposition in favor of

the City under MCR 2.116(C)(7). Ross, 420 Mich at 624-625; Pardon, 213 Mich App at 649.

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IV. CLAIMS INVOLVING DEFENDANT MOCKERIDGE

In their motion for summary disposition, defendants argued that Mockeridge should be

dismissed from the action because he was not present at the time of the search. Defendants

attached Mockeridge’s affidavit to their motion wherein Mockeridge averred that he was at a

different location when officers searched plaintiffs’ property. Plaintiffs did not submit any

documentary evidence to counter the affidavit, but argued that Mockeridge was the affiant for

the search warrant. However, irrespective of whether Mockeridge was the affiant for the search

warrant, in their amended complaint plaintiffs did not contest the validity of the search warrant.

Nor did plaintiffs contend that Mockeridge engaged in wrongful conduct when he allegedly

submitted an affidavit in support of the warrant. Instead, the genesis of plaintiffs’ claims

involved conduct that occurred during execution of the search warrant at plaintiffs’ residence.

Because plaintiffs’ failed to respond with documentary evidence to dispute Mockeridge’s

affidavit, the trial court properly granted summary disposition in favor of Mockeridge pursuant

to MCR 2.116(C)(10). Quinto, 451 Mich at 363.

V. CLAIMS INVOLVING THE REMAINING INDIVIDUAL OFFICERS

The trial court found that the individual officers were entitled to qualified governmental

immunity with respect to plaintiffs’ tort and gross negligence claims. We proceed by addressing

each intentional tort claim before addressing the gross negligence claim.

A. INTENTIONAL TORTS

For lower-level governmental employees such as the officers in this case, the test set

forth in Ross, 420 Mich at 567, governs whether the employee is immune from liability for

intentional torts. Odom v Wayne County, 482 Mich 459, 470, 480; 760 NW2d 217 (2008).

Under the Ross test, a governmental employee is entitled to immunity from intentional tort

claims where he or she has shown the following:

(a) The acts were undertaken during the course of employment and the

employee was acting, or reasonably believed that he was acting, within the scope

of his authority,

(b) the acts were undertaken in good faith, or were not undertaken with

malice, and

(c) the acts were discretionary, as opposed to ministerial. [Odom, 482

Mich at 480, citing Ross, 420 Mich. at 467.]

Plaintiffs do not dispute that the officers’ actions were discretionary as opposed to

ministerial and plaintiffs do not appear to contest that the actions occurred during the course of

the officers’ employment. Instead, plaintiffs’ argument focuses on the alleged bad faith and

malicious conduct of the officers; plaintiffs tie this aspect of their argument to an argument that

the officers were not acting within the scope of their authority.

For purposes of bad faith and malice, in Odom, our Supreme Court explained that “[t]his

Court has described a lack of good faith as malicious intent, capricious action or corrupt conduct

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or willful and corrupt misconduct.” Odom, 482 Mich at 474 (internal quotations, citations and

footnotes omitted). The Odom Court continued, “[i]n addition, this Court has held that willful

and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not

that, such indifference to whether harm will result as to be the equivalent of a willingness that it

does.” Id. at 475 (quotation marks, citations, and footnotes omitted).

We proceed by determining whether the trial court properly held that the individual

officers were immune from each intentional tort claim.

i. False Imprisonment/Arrest

In their complaint, plaintiffs’ alleged that the detentions of Damian, Cheryl, Alisha and

Nathan for the duration of the search amounted to false imprisonment. On appeal, plaintiffs also

argue that the traffic stop of Rochelle amounted to false arrest/imprisonment.

“To prevail on a claim of false arrest or false imprisonment, a plaintiff must show that the

arrest was not legal . . . .” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 18; 672

NW2d 351 (2003). “If the arrest was legal, there has not been a false arrest or a false

imprisonment.” Id. False imprisonment requires a showing of unlawful restraint—i.e. the

defendant lacked any authority or right to confine the plaintiff. Moore v Detroit, 252 Mich App

384, 387; 652 NW2d 688 (2002) (quotation marks and citations omitted).

On appeal, plaintiffs contend that the detentions violated the Fourth Amendment and

therefore amounted to an unlawful imprisonment. Specifically, plaintiffs contend that the 14

hour detention was unreasonable and therefore did not comply with Summers, 452 US at 692. In

doing so, plaintiffs essentially couch a Fourth Amendment/42 USC § 1983 claim as a false

imprisonment claim. However, plaintiffs waived any argument with respect to the Fourth

Amendment when they stipulated to dismiss all of their federal claims. Plaintiffs cannot agree to

dismiss their alleged violations of federal law in the lower court only to argue on appeal that

violation of federal law forms the basis of their state false imprisonment claim. See

Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989) (“[a] party is not

allowed to assign as error on appeal something which his or her own counsel deemed proper at

trial since to do so would permit the party to harbor error as an appellate parachute.”)

Nevertheless, we will address the merits of plaintiffs’ argument.

In Summers, 452 US at 693, as Detroit police officers were preparing to execute a search

warrant to search a residential home, they encountered the respondent as he was leaving the

home. The officers detained him inside the home for the duration of the search and then arrested

him after finding narcotics inside the home and after ascertaining that the respondent was the

home owner. Id. In addition, police conducted a pat-down search of the respondent prior to his

arrest and discovered heroin. Id. The respondent moved to suppress evidence of the heroin,

arguing that the officers violated his Fourth Amendment rights in part because the initial

detention amounted to an unlawful seizure of his person. Id. at 693-694.

The United States Supreme Court held that during the execution of a valid search warrant

for contraband, police officers could detain occupants of the premises, explaining:

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for Fourth Amendment purposes, we hold that a warrant to search for

contraband founded on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a proper search is

conducted. [Summers, 452 US at 705 (footnotes omitted).]

The Court reasoned that such detentions were proper because of the legitimate law enforcement

interests at stake including the interest in preventing flight, minimizing the risk of harm to the

officers and the occupants, and having the occupants present to facilitate the orderly completion

of the search. Id. at 701-702. The Summers Court determined that

[s]uch detentions are appropriate . . . because the character of the

additional intrusion caused by detention is slight and because the justifications for

detention are substantial . . . [T]he detention of an occupant ‘is surely less

intrusive than the search itself,’ and the presence of a warrant assures that a

neutral magistrate has determined that probable cause exists to search the home.

[Muehler, 544 US at 98, quoting Summers, 452 US at 701.]

More recently, in Muehler, 544 US at 93, the Court again addressed the validity of a

detention incident to a lawful search. In that case, following a gang-related drive-by shooting,

police obtained a search warrant for a residential home at 1363 Patricia Avenue where a

suspected gang member resided. Id. at 95. The warrant authorized a “broad search of the house

and premises for among other things, deadly weapons and evidence of gang membership.” Id. at

95-96. When police officers arrived at the home to effectuate the search, they encountered the

respondent, Iris Mena, who resided there with several other people. Id. Police handcuffed Mena

and the other occupants of the home and brought them to the garage where an officer supervised

the occupants for the duration of the two to three hour search. Id. at 95, 100. The supervising

officer questioned Mena and others about their immigration status and Mena provided her

documentation to the officer. Id. at 95. When the search concluded, the officers removed

Mena’s handcuffs and departed the home. Id.

Thereafter, Mena commenced a civil action under 42 USC § 1983, arguing, inter alia,

that detaining her in handcuffs for the duration of the search violated her Fourth Amendment

rights. Id. at 95. The United States Supreme Court rejected this argument, holding that the

detention was proper under Summers, 452 US at 692; the Court explained:

Mena’s detention was, under Summers, plainly permissible. An officer’s

authority to detain incident to a search is categorical; it does not depend on the

quantum of proof justifying detention or the extent of the intrusion to be imposed

by the seizure. Thus, Mena’s detention for the duration of the search was

reasonable under Summers because a warrant existed to search 1363 Patricia

Avenue and she was an occupant of that address at the time of the search.

[Muehler, 544 US at 98 (emphasis added) (quotation marks, citations and

footnotes omitted).]

After concluding that the detention in and of itself was proper under Summers, the

Muehler Court proceeded to address whether the manner in which police effectuated the

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detention—i.e. the use of handcuffs for the entire duration of the search—nevertheless rendered

the detention unconstitutional. The Court explained:

Inherent in Summers’ authorization to detain an occupant of the place to

be searched is the authority to use reasonable force to effectuate the detention.

See Graham v Connor, 490 US 386, 396, 104 L Ed 2d 443, 109 S Ct 1865 (1989)

(“Fourth Amendment jurisprudence has long recognized that the right to make an

arrest or investigatory stop necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it”). Indeed, Summers itself

stressed that the risk of harm to officers and occupants is minimized ‘if the

officers routinely exercise unquestioned command of the situation.’ [Muehler,

544 US at 98-99, quoting Summers, 452 US at 703.]

The Muehler Court concluded that the officers acted reasonably when they kept Mena

and the three other occupants handcuffed in the garage for the duration of the “2-to 3-hour”

search. Muehler, 544 US at 99-100. That Mena was not a suspect did not change the analysis;

rather, the Court explained, “Summers makes clear that when a neutral magistrate has determined

police have probable cause to believe contraband exists, ‘[t]he connection of an occupant to [a]

home’ alone ‘justifies a detention of that occupant.’” Muehler, 544 US at 100 n 2, quoting

Summers, 452 US at 703-704. Moreover, the Court noted:

[T]his was no ordinary search. The governmental interests in not only

detaining, but using handcuffs, are at their maximum when, as here, a warrant

authorizes a search for weapons and a wanted gang member resides on the

premises. In such inherently dangerous situations, the use of handcuffs minimizes

the risk of harm to both officers and occupants. [Muehler, 544 US at 100

(citations omitted).]

In addition, the Court rejected Mena’s argument that the duration of the use of the

handcuffs rendered the detention unreasonable. Id. at 100. The Court acknowledged that “[t]he

duration of a detention can, of course, affect the balance of interests under Graham,” but

concluded, “the 2-to 3-hour detention in handcuffs in this case does not outweigh the

government’s continuing safety interests” given that the search involved “a search of a gang

house for dangerous weapons.” Id.

Two years after its decision in Muehler, 544 US at 93, in a per curiam opinion, in Los

Angeles Co v Rettele, 550 US 609, 613-614; 127 S Ct 1989; 167 L Ed 2d 974 (2007), the

Supreme Court explained:

In executing a search warrant officers may take reasonable action to

secure the premises and to ensure their own safety and the efficacy of the search .

. . . The test of reasonableness under the Fourth Amendment is an objective one

[] Unreasonable actions include the use of excessive force or restraints that cause

unnecessary pain or are imposed for a prolonged and unnecessary period of time.

[Id. (citations omitted).]

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The Court went on to note that, “[w]e have recognized that special circumstances, or possibly a

prolonged detention, might render a search unreasonable.” Id. at 615.

In this case, the search warrant authorized the officers to search for evidence of an

alleged criminal enterprise and to seize weapons.3 Pursuant to Summers, during the execution of

the search warrant, police had the authority to detain individuals with a connection to the

premises for purposes of their safety and the efficacy of the search. Rettele, 550 US at 609;

Muehler, 544 US at 100 n 2; Summers, 452 US at 703-704. Here, Damian, Cheryl, Alisha and

Nathan all had a connection to the premises as they were at the home when police arrived to

conduct the search or, in Nathan’s case, arrived during the search. Thus, police had the authority

to detain plaintiffs’ during the search. Muehler, 544 US at 100.

With respect to the traffic stop of Rochelle, the only documentary evidence submitted by

the parties—Moug’s affidavit—established that Ingham County officers, not defendants,

effectuated the traffic stop. By failing to submit evidence to contest Moug’s affidavit, plaintiffs

failed to meet their burden to create a question of fact and summary disposition as to any alleged

false imprisonment/arrest claim of Rochelle was proper. MCR 2.116(C)(10); Quinto, 451 Mich

at 363.

Plaintiffs argue that the facts “don’t support lack of involvement of Defendants,” in the

traffic stop and in the lower court plaintiffs argued that they named “unknown officers” as

defendants such that the officers effectuating the stop were part of this action. However, in

another part of their pleading, plaintiffs alleged that defendants were Livonia officers who acted

without any participation of Ingham County officers in violation of MCL 764.2a. Thus, because

plaintiffs did not name Ingham County officers in their pleading and failed to submit evidence to

contest Moug’s affidavit, summary disposition was proper under MCR 2.116(C)(10).

3

Summers drew a distinction between “contraband” and “evidence.” In a footnote, the Summers

Court noted, “[w]e do not decide whether the same result would be justified if the search warrant

merely authorized a search for evidence.” Id. at 705 n 20, citing Zurcher v Stanford Daily, 436

US 547; 98 S Ct 1970; 56 L Ed 2d 525 (1978) (a case involving police search of a newspaper

headquarters for photographs of suspected criminals). However, subsequent to Summers, the

Court in Muehler, 544 US at 93 explained that “[a]n officer’s authority to detain incident to a

search is categorical; it does not depend on the quantum of proof justifying detention or the

extent of the intrusion to be imposed by the seizure” (emphasis added). The Muehler Court did

not draw a distinction between evidence and contraband and the Court’s language supports that

Summers created a broad categorical rule allowing detention incident to a lawful search.

Similarly, in Rettele, 550 US at 609, the Court did not draw a distinction between contraband and

evidence when it held that “[i]n executing a search warrant officers may take reasonable action

to secure the premises and to ensure their own safety and the efficacy of the search.” Post-

Rettele, for purposes of Summers, courts have “rendered the evidence/contraband distinction

immaterial where occupants of a building are detained to ensure the safety of the officers

executing a search warrant.” US v Allen, 618 F 3d 404, 410 (CA 3, 2010).

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Moreover, even assuming that plaintiffs included the officers who effectuated the stop as

defendants, the complaint asserted that Rochelle had “just left her home,” when police arrived to

conduct the search and then began pursuing Rochelle. Thus, Rochelle had a connection to the

premises to be searched such that the officers could have reasonably believed they had authority

to stop and detain Rochelle under Summers. Muehler, 544 US at 100 n 2. The facts do not

support a reasonable inference that the officers acted in bad faith or with malice in effectuating

the stop and the officers were entitled to immunity with respect to the false imprisonment claim

involving Rochelle. Odom, 482 Mich at 480.

Plaintiffs contend that the duration of the detentions of Damian, Cheryl, Alisha and

Nathan were unreasonable and therefore violated the Fourth Amendment such that the detentions

amounted to unlawful imprisonment. Plaintiffs cite Leveto v Lapina, 258 F 3d 156 (CA 3, 2001),

in support of their argument.

In Leveto,

agents of the Internal Revenue Service, as part of an investigation into a

doctor’s tax practices, carried out a search warrant at the doctor’s office, detained

him and his wife for almost eight hours, restricted them from communicating with

others for the entire period, continually interrogated them, subjected the doctor to

‘the inconvenience and indignity of a forced ride with IRS agents to his home and

back to his office,’ and ‘prevented [him] from responding to client needs.’

[United States v Allen, 618 F 3d 404, 410 (CA 3, 2010), quoting Leveto, 258 F 3d

at 160, 169.]

The Leveto Court held that the seizure violated the Fourth Amendment, reasoning that the

seizure was highly intrusive, was prolonged in that it lasted eight hours, and “did little to advance

the law enforcement interests that were found to justify the detention in Summers.” Leveto, 258

F 3d at 169-170. Specifically, the Court reasoned that “there was no compelling need to detain

Dr. Leveto to protect the safety of the agents,” because it was not an investigation “into a type of

offense often accompanied by violence.” Id. at 171. Nevertheless, the Leveto Court concluded

that the IRS agents were entitled to qualified immunity under federal law because, despite the

unconstitutional seizure, “a reasonable agent could have believed, in light of the case law at the

time, that the detention[] . . . [was] lawful.” Id. at 172.

In this case, like in Leveto, even if we were to agree with plaintiffs and conclude that the

complaint supported a reasonable inference that the detentions were objectively unreasonable,

the facts do not support that the officers acted outside the scope of their authority or that the

officers acted in bad faith or with malice for purposes of the Ross test. Odom, 482 Mich at 480.

Here, plaintiffs do not dispute that their residence included 15 acres of land, two pole barns, and

a two-story residential home. The search warrant authorized police to seize weapons and

referenced a criminal organization. Thus, the officers could have reasonably believed that it was

necessary for their safety to detain all of the occupants of the home for the duration of the search

and to investigate Rochelle’s vehicle as it departed when police arrived at the scene. The

officers could have reasonably concluded that it would be interruptive and pose a danger if

people were arriving and departing from the premises during the search. Moreover, officers

allowed plaintiffs to use the restroom and, unlike in Leveto, there are no allegations that officers

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moved plaintiffs to a different location, interrogated anyone, or used handcuffs. In short, given

all of the circumstances, the facts alleged in the complaint fail to create a reasonable inference

that the officers acted outside of their authority or acted in bad faith or with malice when they

detained plaintiffs. Odom, 482 Mich at 480. Therefore, plaintiffs failed to allege facts to support

an unlawful imprisonment claim and the trial court properly granted summary disposition on that

claim pursuant to MCR 2.116(C)(7) and (C)(8).

ii. Conversion

In their complaint, plaintiffs alleged that defendants wrongfully seized property including

farm machinery, personal vehicles, a horse trailer, saddles, all bank accounts, all electronic

equipment, an iPad, phones, and computer games. Plaintiffs alleged that the search warrant did

not provide “any guidelines to determine the property’s ownership or origin,” and therefore

amounted to conversion.

“In Michigan, conversion is defined generally as any distinct act of domain wrongfully

exerted over another’s personal property in denial of or inconsistent with the rights therein.”

Sarver v Detroit Edison Co, 225 Mich App 580, 585; 571 NW2d 759 (1997) (quotation marks

and citation omitted).

In this case, even assuming all of the allegations in the complaint are true, because the

facts do not support a reasonable inference that the officers acted outside their authority, acted in

bad faith, or acted with malice in seizing property during the search, the officers were entitled to

qualified immunity as to the conversion claim. Odom, 482 Mich at 480. Here, as noted above,

the search warrant was very broad and it authorized the officers to seize a wide array of property.

Plaintiffs did not contest the validity of the search warrant on its face.4 Thus, the officers were

acting under the authority of the law when they seized the items from plaintiffs’ property.

Moreover, given the breadth of authority to seize items under the terms of the search

warrant, while police perhaps were negligent in pulling televisions off the wall, the evidence

does not support a reasonable inference that the officers acted in bad faith or with malice when

they seized the property. Odom, 482 Mich at 480. With respect to the seizure of items, there are

no allegations in the complaint to support that the officers acted with “malicious intent,” or

engaged in “capricious action or corrupt conduct or willful and corrupt misconduct.” Id. at 474.

The evidence does not support a reasonable inference that the officers intended to harm plaintiffs

or acted with “such indifference to whether harm will result as to be the equivalent of a

willingness that it does.” Id. Accordingly, there was no evidence to support that the officers

unlawfully seized any property and plaintiffs’ conversion claim failed as a matter of law. Sarver,

225 Mich App at 585. Summary disposition as to plaintiffs’ conversion claim was proper under

MCR 2.116(C)(7) and (C)(8).

4

In their brief on appeal, plaintiffs assert that the warrant lacked specificity. However, plaintiffs

did not challenge the validity of the warrant in the lower court. Plaintiffs cannot now challenge

the validity of the warrant for the first time on appeal. See Reed v Reed, 265 Mich App 131,

150; 693 NW2d 825 (2005).

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iii. Assault

Plaintiffs alleged that defendants assaulted Rochelle when they engaged in a pursuit,

pulled her over, and ordered her into a police vehicle at gunpoint, surrounded the vehicle driven

by Nathan at gunpoint and ordered him to exit the vehicle, and forcibly grabbed an iPad from

Cheryl.

“An assault is defined as any intentional unlawful offer of corporal injury to another

person by force, or force unlawfully directed toward the person of another, under circumstances

which create a well-founded apprehension of imminent contact, coupled with the apparent

present ability to accomplish the contact.” Espinoza v Thomas, 189 Mich App 110, 119; 472

NW2d 16 (1991).

With respect to the allegations involving Rochelle, as noted above, plaintiffs’ failed to

meet their burden to create a question of fact to support that defendants were the officers who

effectuated the traffic stop and summary disposition was proper as to the alleged assault

involving Rochelle. See Quinto, 451 Mich at 363. Moreover, given that Rochelle had just left

the premises when police arrived, the facts do not support a reasonable inference that the officers

acted outside their authority, acted in bad faith, or acted with malice when they followed

Rochelle and effectuated a traffic stop. Muehler, 544 US at 100 n 2. The officers were entitled

to immunity with respect to the assault claim involving Rochelle. Odom, 482 Mich at 480.

With respect to the allegations involving Cheryl, as noted above, the officers had

authority to seize the iPad pursuant to the search warrant. Therefore, plaintiffs cannot show that

grabbing the iPad from her hand was unlawful or amounted to bad faith or malice and summary

disposition as to this claim was proper under MCR 2.116(C)(7) and (C)(8). Odom, 482 Mich at

474; Espinoza, 189 Mich App at 119.

Finally, with respect to allegations involving Nathan, as discussed above, the officers had

authority to detain individuals connected to the premises during execution of the search warrant.

Muehler, 544 US at 100. The alleged facts in the complaint do not support a reasonable

inference that the officers’ use of their weapons was unlawful for purposes of assault. Espinoza,

189 Mich App at 119. Rather, the officers had authority to use reasonable force to effectuate the

detention of individuals at the premises incident to the valid search warrant. Muehler, 544 US at

98-99. The search warrant in this case included an authorization to seize weapons. Thus, it was

reasonable for officers to use force to detain Nathan when he drove up to the house while

officers were searching. It was reasonable for officers to fear for their safety. The facts show

that officers were unaware of who and what was inside of the pickup truck such that it was

reasonable for officers to hold Nathan at gunpoint when he drove up to the house. See e.g.

Hinojosa v City of Terrell, 834 F 2d 1223, 1231 (CA 5, 1988) (noting, “to subject such displays

of force to second guessing by a jury may increase the likelihood that the officer will wait until

the situation escalates further before drawing his gun, and thereby end up having to (or believing

he has to) shoot to protect himself or others.”); Muehler, 544 US at 98-99 (noting that “the risk

of harm to officers and occupants is minimized if the officers routinely exercise unquestioned

command of the situation”) (quotation marks and citations omitted). In short, plaintiffs’

allegations regarding the officers’ conduct in regard to Nathan fails to create an issue of fact

regarding whether the officers acted with bad faith or malice; thus, defendants were entitled to

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immunity with respect to the alleged assault of Nathan. Odom, 482 Mich at 474, 480; MCR

2.116(C)(7).

iv. IIED

In their complaint, plaintiffs alleged that the officers’ conduct in the aggregate amounted

to IIED in that it was “extreme, outrageous, and of such character as not to be tolerated by a

civilized society.”

“To establish a prima facie claim of intentional infliction of emotional distress, the

plaintiff must present evidence of (1) the defendant’s extreme and outrageous conduct, (2) the

defendant’s intent or recklessness, (3) causation, and (4) the severe emotional distress of the

plaintiff.” Lucas v Awaad, 299 Mich App 345, 359; 830 NW2d 141 (2013) (quotation marks and

citation omitted). Extreme and outrageous conduct is conduct “so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.” Doe v Mills, 212 Mich App 73, 91;

536 NW2d 824 (1995). This does not include “mere insults, indignities, threats, annoyances,

petty oppressions, and other trivialities.” Id.

As discussed above, the facts alleged in plaintiffs’ complaint do not create an issue of fact

to support that the officers acted outside their authority, engaged in bad faith or acted with

malice. For the same reasons, plaintiffs IIED claim fails in that the alleged facts do not support a

reasonable inference that the officers engaged in extreme and outrageous conduct. Mills, 212

Mich App at 92. Rather, the facts show that the officers effectuated a lawful search of plaintiffs’

premises and were acting under the authority of the law when they detained plaintiffs for the

duration of the search. At best, the complaint contained questions of fact regarding whether the

officers were negligent in the manner they conducted the search. The officers could have been

more careful when they removed the televisions from the wall, they could have taken care not to

leave trash and items strewn about the premises, and they could have wiped their boots outside to

minimize the dirt they tracked into the home. However, the nature of the activity involved was

bound to disrupt plaintiffs’ home and cause inconvenience. Here, a team of 20 officers was

tasked with searching a 15-acre parcel of property that included two barns and a two-story home.

The officers were bound to track some dirt and mud into the home and to disrupt and dishevel

the interior of the home. There was no issue of fact to support that the officers engaged in

extreme and outrageous conduct and the trial court did not err in granting summary disposition

as to plaintiffs’ IIED claim. Lucas, 299 Mich App at 359.

In sum, the trial court did not err in granting summary disposition in favor of the

individual defendant officers as to all of plaintiffs’ intentional tort claims.

B. GROSS NEGLIGENCE

In their complaint, plaintiffs alleged that the officers were grossly negligent where their

conduct “was so reckless that it demonstrated a substantial lack of concern for Plaintiffs persons

or property rights.” Specifically, plaintiffs alleged that defendants acted grossly negligent as

follows: throwing Nathan’s belongings out of his car onto the ground, throwing fresh produce

and meat into the dirt where it spoiled, eating Subway and then leaving trash and waste strewn

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about the home and property, forcefully removing televisions and electronics from the home and

walls causing damage, tracking water, mud and horse manure throughout the house causing the

carpet to be ruined and necessitating multiple steam cleanings, informing Alisha that they owned

everything at the home causing her to cry, and detaining plaintiffs for the duration of the search

with limited access to the bathroom. In their brief, plaintiffs also argue that the officers were

grossly negligent in pursuing Rochelle in an unmarked vehicle.

For claims involving negligent torts, MCL 691.1407(2) provides that a governmental

officer or employee is immune from liability if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes

he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a

governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount

to gross negligence that is the proximate cause of the injury or damage.

“‘Gross negligence’ means conduct so reckless as to demonstrate a substantial lack of

concern for whether an injury results.” MCL 691.1407(8)(a). “Evidence of ordinary negligence

does not create a material question of fact concerning gross negligence,” Maiden, 461 Mich at

122, and “[s]imply alleging that an actor could have done more is insufficient under Michigan

law, because, with the benefit of hindsight, a claim can always be made that extra precautions

could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333

(2004). Rather, gross negligence “suggests . . . almost a willful disregard of precautions or

measures to attend to safety and a singular disregard for substantial risks. It is as though, if an

objective observer watched the actor, he could conclude, reasonably, that the actor simply did

not care about the safety or welfare of those in his charge.” Id.

In this case, as discussed above, the governmental agency in this case was involved in the

governmental function of conducting police operations. Odom, 482 Mich at 479-480. Similarly,

there were no facts to dispute that the officers reasonably believed that they were acting within

the scope of their authority where the officers had a valid search warrant. Id. Furthermore, the

alleged facts do not support a reasonable inference that the officers engaged in grossly negligent

conduct during their execution of the search warrant. Id. With respect to the detention of

plaintiffs and pursuit of Rochelle, as previously noted, the officers did not act in bad faith and a

rational officer could have concluded that it was reasonable to detain plaintiffs’ incident to the

search warrant under Summers, 425 Mich at 692. The search involved a substantial amount of

property including 15 acres, two pole barns, farm equipment, and a two-story home. The search

warrant authorized the seizure of a significant amount of property including documents related to

organized crime. The officers did not interrogate plaintiffs, they did not handcuff plaintiffs,

transport them in police vehicles or detain them longer than necessary to complete the search.

Similarly, with respect to drawing their guns on Nathan, the officers had authority under the law

to use force, or a show of force, to effectuate the detentions of individuals connected to the

premises. Muehler, 544 US at 98-99.

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In regard to plaintiffs’ allegations that the officers threw belongings on the ground, left

food out to spoil, left trash and waste strewn about the house, forcefully removed televisions,

tracked mud and horse manure throughout the house, yelled at Alisha, and generally were

grossly negligent in their search, these facts support, at best, that the officers “could have done

more” to take precautions during the search, which is insufficient to create a reasonable inference

of gross negligence. See Tarlea, 263 Mich App at 90 (“with the benefit of hindsight, a claim can

always be made that extra precautions could have influenced the result.”) These allegations at

best support a reasonable inference that the officers were negligent or careless in conducting the

search; however, they do not create a reasonable inference of “conduct so reckless as to

demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a).

In short, there was no issue of fact regarding whether the officers reasonably believed

that they were acting within the scope of their authority or to dispute that the governmental

agency in this case, the City, was engaged in the exercise of a governmental function. Similarly,

the alleged facts did not support a reasonable inference that the officers were grossly negligent in

conducting the search. Accordingly, the individual officers were entitled to qualified

governmental immunity as to the gross negligence claim pursuant to MCL 691.1407(2) and

summary disposition as to this claim was proper under MCR 2.116(C)(7).

Affirmed. No costs awarded. MCR 7.219(A).

/s/ Peter D. O’Connell

/s/ Stephen L. Borrello

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