Denishio Johnson v. Curt Vanderkooi

STATE OF MICHIGAN

COURT OF APPEALS

DENISHIO JOHNSON, FOR PUBLICATION

May 23, 2017

Plaintiff-Appellant, 9:00 a.m.

and

THE AMERICAN CIVIL LIBERTIES UNION

OF MICHIGAN,

Amicus Curiae,

v No. 330536

Kent Circuit Court

CURT VANDERKOOI, ELLIOT BARGAS, and LC No. 14-007226-NO

CITY OF GRAND RAPIDS,

Defendants-Appellees.

Before: WILDER, P.J., and BOONSTRA and O’BRIEN, JJ.

BOONSTRA, J.

This case arises out of a police contact between plaintiff and City of Grand Rapids Police

Department (GRPD) officers, and the application of what is described as GRPD’s “photograph

and print” (P&P) policy. The trial court granted summary disposition in favor of defendants

under MCR 2.116(C)(7) and (10). Plaintiff appeals by right. We conclude that the trial court

correctly held that defendants VanderKooi and Bargas were shielded by qualified immunity and

were therefore entitled to summary disposition under MCR 2.116(C)(7), and that defendant City

of Grand Rapids was entitled to summary disposition under MCR 2.116(C)(10) regarding

plaintiff’s claim for municipal liability under 42 USC § 1983. We therefore affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On August 15, 2011, the GRPD received a telephone complaint that an individual

eventually identified as plaintiff was walking through the Michigan Athletic Club’s (MAC)

parking lot in Grand Rapids and was looking into several vehicles as if intending to steal

something from the vehicles. Officers Greg Edgcombe and Eugene Laudenslager responded and

located plaintiff sitting under a shade tree. Plaintiff told Edgcombe that he had merely walked

through the parking lot on his way to where he was sitting, to meet a friend who was taking the

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bus. Plaintiff did not have identification with him. According to the police report completed by

Edgcombe, numerous items had been stolen from vehicles in the MAC parking lot during the

preceding months. The police report stated that some of the reports from the previous incidents

contained “descriptions of [a] young black male suspect who left the area over the south parking

lot grassy knoll which is directly in the path of where plaintiff lives on Burning Tree Drive.”

Edgcombe “file checked” his computer system for the name that plaintiff had given him

(Denishio Johnson) and did not discover any warrants or previous arrests. Laudenslager spoke

with a witness who identified plaintiff as the person who was looking into vehicles but who

stated that plaintiff did not try to open or enter any of the vehicles.1

Sergeant Elliot Bargas of the GRPD arrived on the scene after Laudenslager and

Edgcombe had made contact and spoken with plaintiff. According to Bargas, Edgcombe was in

the process of trying to identify who plaintiff was and reported that plaintiff had told him that he

was 15 years old and lived on Burning Tree Drive just south of the MAC parking lot. Bargas

testified that plaintiff admitted to walking through the parking lot but denied looking into cars.

Bargas further testified that plaintiff looked older than 15 years of age and had tattoos. Sergeant

Bargas photographed plaintiff in case there were witnesses from the previous thefts who could

identify a suspect. Sergeant Bargas also fingerprinted plaintiff because the GRPD had tried to

obtain latent prints in the previous incidents. Bargas explained that at the time he performed the

P&P on plaintiff, he and Edgcombe still were not sure about plaintiff’s actual identity and were

trying to verify it. Bargas testified that he asked plaintiff if there was someone he could call to

come to the scene and confirm his identity. Sometime after the P&P, plaintiff’s mother and

another family member arrived. Bargas explained why plaintiff had been stopped (i.e., that two

independent witnesses had described her son as looking into vehicles in the parking lot), and that

plaintiff’s mother verified his identity and indicated that she would make sure that plaintiff took

a different route to avoid any future problems. Plaintiff left with his family.

In the meantime, Captain Curtis VanderKooi of the GRPD heard the radio traffic

regarding the incident in the MAC parking lot, and went to the scene. VanderKooi testified that

he believed he showed up after plaintiff had left and as things were wrapping up at the scene.2

VanderKooi further testified that Bargas and Edgcombe explained what had occurred, that he

approved of Bargas’s actions, and that he then drove away. On the following day, VanderKooi

requested that plaintiff’s fingerprints be compared with any latent prints found at the scene of the

other larcenies from vehicles in the area. According to VanderKooi, either there was no match

1

Edgcombe’s report states: “We discovered that [plaintiff] had looked into cars but unlike the

initial information he had not tried to open or enter any of the vehicles that he looked into.” It is

not clear from the record what the phrase “initial information” refers to, as Edgcombe’s

description of the telephone complaint that prompted his response to the scene only indicates that

the complainant described plaintiff as “looking into several cars as he passed by them in the lot

as if looking to steal something if it presented it self [sic] to him.”

2

Bargas testified that he thought that VanderKooi arrived while plaintiff was stopped and before

plaintiff’s mother arrived.

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between the prints or the quality of the prints was inadequate to make a comparison.

VanderKooi took no further action related to this incident.

Plaintiff testified that he was handcuffed for the P&P procedure and was placed in the

back of a police car for 5 to 10 minutes while waiting for his mother to arrive. Plaintiff denied

looking into cars, but stated at his deposition that he usually looked at his reflection in car

windows as he passed them. Plaintiff denied touching any vehicle. After the officers spoke with

plaintiff’s mother, they let plaintiff out of the police car and removed his handcuffs. Plaintiff

testified that the police did not ask for his consent for the P&P or any search.

On August 7, 2014, plaintiff filed a complaint against Bargas, VanderKooi, and the City

of Grand Rapids (the city), alleging violations of 42 USC 1981, 42 USC 1983, and

42 USC 1988. Plaintiff alleged that, without probable cause or legal authority, Bargas took

fingerprints and photographs of plaintiff, who was African American. Plaintiff further alleged

that the photographs were stored in the GRPD’s files and that VanderKooi directed Bargas to

take the fingerprints and photographs and to store them. Plaintiff also alleged that Bargas and

VanderKooi took these actions against plaintiff because he was African American. In Count I,

the complaint raised a claim against Bargas and VanderKooi under 42 USC 1981 and

42 USC 1983, and asserted that they had violated the Equal Protection Clause of the Fourteenth

Amendment, US Const, Am XIV,3 plaintiff’s right to be free from unlawful searches and

seizures under the Fourth Amendment, US Const, Am IV, his rights under the Fifth Amendment,

US Const, Am V, barring the taking of private property without just compensation, and his

constitutional right to privacy.

In Count II, plaintiff raised a municipal liability claim against the city under

42 USC 1988. According to the complaint, an analysis of police reports from March 2008 to

March 2013 was conducted. The complaint alleged that, in the reports that contained

VanderKooi’s name and the phrase “P&P” or a similar reference to photograph and print, there

were 11 people, including plaintiff, who were innocent of any wrongdoing but who had still had

their photographs and prints taken, and an additional person who had only had a photograph

taken. The complaint asserted that 75% of those individuals were African American, but the

city’s population was only 20% African American. The complaint alleged that plaintiff’s

photograph and prints were taken as part of the city’s policy, which was enforced in a

discriminatory manner.

On September 3, 2014, defendants filed their answer to the complaint and affirmative

defenses. The following affirmative defenses were raised: (1) plaintiff failed to state a claim

upon which relief could be granted; (2) the initial contact was a consensual police-citizen

encounter; (3) reasonable suspicion supported the initial stop and the actions that followed; (4)

the initial stop was reasonable; (5) the actions were not discriminatory or based on race; (6)

3

The Fourteenth Amendment also provides the basis for claims that a state has denied other

federal constitutional rights. See Rendell-Baker v Kohn, 457 US 830, 837-838; 102 S Ct 2764;

73 L Ed 2d 418 (1982).

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Bargas and VanderKooi were entitled to qualified immunity; (7) plaintiff consented to some or

all of defendants’ actions; and (8) any claimed damages were caused, in whole or in part, by

plaintiff’s own actions.

On September 11, 2015, the city and the individual defendants filed separate motions for

summary disposition. Bargas and VanderKooi argued that they were entitled to summary

disposition under MCR 2.116(C)(7) because they were entitled to qualified immunity given that

the law was not clearly established regarding taking fingerprints and photographs during

investigatory stops. VanderKooi additionally argued that he was entitled to summary disposition

under MCR 2.116(C)(10) because he did not have an active role in the stop. Moreover, Bargas

and VanderKooi argued that they were entitled to summary disposition under MCR 2.116(C)(10)

because there was no such thing as a constitutional right to privacy, plaintiff could not establish a

takings claim, and plaintiff could not establish that he was discriminated against based on race.

The city argued that it was entitled to summary disposition under MCR 2.116(C)(10)

because a city employee did not deny plaintiff a constitutional right, the city’s P&P practice did

not violate the Fourth Amendment, plaintiff could not establish that the city acted with deliberate

indifference to the federal civil rights violations, and plaintiff could not establish a pattern,

notice, or tacit approval of illegal conduct on the part of the city.

In response, plaintiff stated that he was abandoning his equal protection and § 1981

claims but denied that summary disposition was appropriate with respect to his remaining claims.

Plaintiff planned to have an expert witness, Dr. William Terrill, testify at trial. Dr. Terrill

is a professor of criminal justice at Michigan State University. Dr. Terrill provided an affidavit

in which he opined that Bargas’s actions in performing the P&P procedure in this case were

unreasonable. Defendants filed a joint motion to strike Dr. Terrill’s proposed testimony.

Defendants argued that Dr. Terrill’s proposed testimony could be broken down into two

categories: numerical opinions on racial profiling and opinions on whether Bargas’s actions were

reasonable. With respect to the numerical opinions on racial profiling, defendants argued that

the opinion was inadmissible and unnecessary to the extent that it involved the ordinary use of

computations that any layperson could perform. They further argued that Dr. Terrill was

unqualified to testify about racial profiling. Moreover, defendants argued that Dr. Terrill’s

analysis was unreliable because it used unadjusted census data as a statistical benchmark—an

approach rejected by many courts; that the analysis was unreliable because nothing was used as a

control; that the analysis was unreliable because his “preliminary opinions” regarding this case

were not developed using the same intellectual rigor as his academic work; and that the analysis

involved inadmissible hearsay and was unnecessary for the jury to interpret the facts. Finally,

defendants argued that Dr. Terrill’s opinion contradicted the admissible evidence.

On October 30, 2015, the trial court held a hearing on the motions for summary

disposition and the motion to strike. Defendants argued that there was no generalized

constitutional right to privacy; that a right to privacy must be tied to a specific amendment; and

that, in this case, the applicable amendment is the Fourth Amendment. Thus, defendants

maintained that there could not be a separate claim under a general right to privacy and that the

proper analysis is under the Fourth Amendment. Plaintiff did not dispute that analysis and

agreed that his right to privacy should be evaluated in the context of the Fourth Amendment.

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Defendants further argued that people did not have a reasonable expectation of privacy in their

fingerprints or in photographs of themselves as they appeared in public. Plaintiff responded that

either a search warrant or probable cause in the field was needed to gather the evidence and that

“none of the bases that the Fourth Amendment requires” were present to allow the gathering of

photographs and fingerprints in this case.

With respect to the Fifth Amendment, defendants argued that there are no property rights

implicated in a person’s photograph or fingerprints, that the photograph and fingerprints in this

case were not published, and that the underlying incident was an application of police powers

rather than a taking under the city’s eminent domain power. Plaintiff argued that the incident

involved a taking of intangible property without just compensation, although he conceded that

there were certain instances when police could take someone’s photograph and fingerprints as an

appropriate exercise of police powers. Plaintiff also conceded that he could not find caselaw

indicating that the taking of a fingerprint or photograph by police constituted a taking under the

Fifth Amendment, but he maintained that it was an issue of first impression.

Following the hearing, the trial court issued two separate written opinions and orders

regarding the motion to strike Dr. Terrill and the motions for summary disposition. With respect

to the motion to strike, the trial court acknowledged Dr. Terrill’s substantial training and

education in the general field of criminal justice but questioned whether he was qualified to give

an expert opinion in the instant case. The trial court held that, even assuming that Dr. Terrill was

qualified in the area of police conduct similar to the instant case, plaintiff had failed to establish

that Dr. Terrill’s opinion would assist the trier of fact or that his opinions were based on a

recognized form of specialized knowledge. The trial court therefore concluded that plaintiff had

failed to satisfy the requirements of MRE 702. In addition, the trial court held that the testimony

sought to be introduced did not pass muster under MRE 403 because the information—whether

based on Dr. Terrill’s statistical analysis or on non-statistical opinion—was unnecessary to assist

the jury; plaintiff abandoned the equal protection claims based on race; and the statistical

information would only confuse the issues presented to the jury. Accordingly, the trial court

granted the motion to strike.

With respect to Bargas and VanderKooi’s motion for summary disposition, the trial court

noted that the complaint was limited to the P&P procedure and that plaintiff “did not challenge

the propriety of the initial stop, search of his person, or detention.” The trial court held that

plaintiff “was in public and had no reasonable expectation of privacy in his various physical

features which were readily observable by the public” and that the P&P did not violate the

Fourth Amendment. In the alternative, the trial court noted that the Fourth Amendment only

prohibited unreasonable searches and seizure, and it held that, even assuming that the P&P

constituted a search and seizure, Bargas’s actions were reasonable given the circumstances.

Further, the trial court held that plaintiff did not establish that VanderKooi directed Bargas’s

actions. The trial court also rejected plaintiff’s argument that he had a constitutional right to

privacy in his fingerprints and facial features. The trial court therefore held that summary

disposition was appropriate under MCR 2.116(C)(10) with respect to plaintiff’s Fourth

Amendment and constitutional right to privacy claim.

Regarding the Fifth Amendment claim, the trial court rejected plaintiff’s argument and

held that his facial features and fingerprints were “observable by the general public and not

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protected under the common law right to privacy.” It therefore held that summary disposition

was appropriate under MCR 2.116(C)(10). The trial court also held that plaintiff had abandoned

his equal protection claim under 42 USC 1981. Consequently, it held that summary disposition

was appropriate under MCR 2.116(C)(10).

In addition, the trial court held that qualified immunity applied to all of plaintiff’s claims

against Bargas and VanderKooi. Therefore, the trial court concluded, “Because Plaintiff failed

to establish a genuine issue of material fact regarding his 1983 claims, and abandoned his 1981

claim, and because Bargas and VanderKooi are otherwise shielded by qualified immunity,

summary disposition is appropriate pursuant to MCR 2.116(C)(7) and 2.116(C)(10).”

With respect to the city’s motion for summary disposition, the trial court held that

plaintiff had failed to establish a violation of his constitutional rights and had not established that

the policy was unconstitutional on its face or as applied; therefore, summary disposition was

appropriate under MCR 2.116(C)(10).

The trial court accordingly dismissed plaintiff’s claims with prejudice. This appeal

followed.

II. INDIVIDUAL DEFENDANTS

Plaintiff argues that the trial court erred by granting summary disposition in favor of

Bargas and VanderKooi on his Fourth and Fifth Amendment claims. Because we find that

Bargas and VanderKooi were shielded by the doctrine of qualified immunity, we disagree.

A. STANDARD OF REVIEW

“A motion for summary disposition under MCR 2.116(C)(7) asserts that a claim is barred

by immunity granted by law” and “may be supported or opposed by affidavits, depositions,

admissions, or other documentary evidence; the substance or content of the supporting proofs

must be admissible in evidence.” By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 26; 703

NW2d 822 (2005). “A trial court properly grants a motion for summary disposition under

MCR 2.116(C)(7) when the undisputed facts establish that the moving party is entitled to

immunity granted by law.” Id. We review de novo a trial court’s grant of summary disposition

pursuant to MCR 2.116(C)(7). Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543,

553; 837 NW2d 244 (2013). Further, we review de novo the question of whether a federal

constitutional right was clearly established at the time of the alleged violation so as to preclude

the protection of qualified immunity. See Elder v Holloway, 510 US 510, 516; 114 S Ct 1019,

1023; 127 L Ed 2d 344 (1994); Morden v Grand Traverse Co, 275 Mich App 325, 340; 738

NW2d 278 (2007).

B. QUALIFIED IMMUNITY GENERALLY

“Qualified immunity is an established federal defense against claims for damages under

§ 1983 for alleged violations of federal rights.” Id. A person is liable under 42 USC 1983 if he

or she, “under color of any statute, ordinance, regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any citizen of the United States or other person within the

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jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution . . . .” 42 USC 1983. “Section 1983 itself is not the source of substantive rights; it

merely provides a remedy for the violation of rights guaranteed by the federal constitution or

federal statutes.” York, 438 Mich at 757-758. “A cause of action under § 1983 is stated where a

plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant

deprived the plaintiff of that right while acting under color of state law.” Davis, 201 Mich App

at 576-577. However, “[a] police officer may invoke the defense of qualified immunity to avoid

the burden of standing trial when faced with a claim that the officer violated a person’s

constitutional rights.” Lavigne v Forshee, 307 Mich App 530, 542; 861 NW2d 635 (2014).

“The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Id. at 542 (quotation marks and

citations omitted). Thus, qualified immunity does not apply if a right was “clearly established”

at the time of the violation, such that it “would be clear to a reasonable officer” that his or her

conduct was unlawful. Id. (citations omitted).

Qualified immunity can apply “even if there were a genuine issue of material fact

regarding the underlying [constitutional] claim.” Morden, 275 Mich App at 340, 342. See also

Messerschmidt v Millender, 565 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

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in the particular case at hand.” Id. at 236. See also Jones v Byrnes, 585 F3d 971, 975 (CA 6,

2009) (explaining that “Pearson left in place [Saucier’s] core analysis” and that it “need not

decide whether a constitutional violation has occurred if we find that the officer’s actions were

nevertheless reasonable”).

In this case, the circumstances lead us to conclude that the second prong of the Saucier

analysis is dispositive of whether Bargas and VanderKooi are entitled to qualitative immunity.

We therefore decline to address whether, taken in the light most favorable to plaintiff, the P&P

procedure violated plaintiff’s Fourth and Fifth Amendment rights. Rather, for the reasons stated

below, we hold that at the time of the alleged violation, the right asserted by plaintiff was not

clearly established. Saucier, 533 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 US

Const, Am IV (“The Fourth Amendment, binding on the States by the Fourteenth Amendment,

provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.’ ”). There is a dual inquiry for

determining whether a search or a seizure is unreasonable: “whether the officer’s action was

justified at its inception, and whether it was reasonably related in scope to the circumstances

which justified the interference in the first place.” Terry v Ohio, 392 US 1, 20; 88 S Ct 1868,

1879; 20 L Ed 2d 889 (1968).

A person is liable under 42 USC 1983 if he or she, “under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution . . . .” 42 USC 1983. “Section 1983 itself

is not the source of substantive rights; it merely provides a remedy for the violation of rights

guaranteed by the federal constitution or federal statutes.” York v Detroit (After Remand), 438

Mich 744, 757-758; 475 NW2d 346 (1991). “A cause of action under § 1983 is stated where a

plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant

deprived the plaintiff of that right while acting under color of state law.” Davis v Wayne Co

Sheriff, 201 Mich App 572, 576-577; 507 NW2d 751 (1993). It is undisputed that the officers

were acting under the color of state law when the alleged Fourth Amendment violation of

plaintiff’s rights occurred.

1. NATURE OF PLAINTIFF’S CLAIMS

The factual allegations of plaintiff’s complaint relate solely to the taking of plaintiff’s

photograph and fingerprints. Plaintiff did not challenge his initial stop, the length of his

detainment, or the fact that he was handcuffed or placed in a police car, as being unreasonable

and violative of his Fourth Amendment rights. Rather, he alleged only that the P&P procedure

was an unlawful search and seizure. This Court must limit its review to the allegations contained

in the complaint. See Sutter v Ocwen L Servicing, LLC, 499 Mich 874; 876 NW2d 244 (2016),

see also Steed v Covey, 355 Mich 504, 511; 94 NW2d 864 (1959), quoting 41 Am Jur, Pleading,

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§ 77, pp 343-345 (explaining the general principles that “[e]very material fact essential to the

existence of the plaintiff’s cause of action, and which he must prove to sustain his right of

recovery, must be averred, in order to let in proof thereof” and that “[e]very issue must be

founded upon some certain point, so that the parties may come prepared with their evidence and

not be taken by surprise, and the jury may not be misled by the introduction of various matters”).

The trial court did not abuse its discretion by limiting plaintiff’s claims to those that

plaintiff actually pled. The entirety of plaintiff’s Count I (against Bargas and VanderKooi) reads

as follows:

9. On August 25, 2011, Plaintiff Johnson was sitting on the grass

approximately 150 south of Burton Street near the intersection of Breton Avenue

_in the City of Grand Rapids.

10. Plaintiff Johnson is an African-American.

11. Officer Greg Edgcombe contacted Plaintiff Johnson following a

call from personnel at the' Michigan Athletic Club (“MAC”).

12. Despite being told that [plaintiff] had not tried to open or enter any of

the vehicles in the MAC parking lot (unlike the initial information), Sgt. Elliott

Bargas took a full set of fingerprints and two photos of [plaintiff], without

probable cause, a search warrant or other legal authority to do so.

13. Upon information and belief, Defendant VanderKooi directed Sgt.

Bargas to photograph Plaintiff Johnson and have the photograph stored in the files

and records of the City of Grand Rapids Police Department, without probable

cause, a search warrant, or legal authority to do so.

14. Upon information and belief, Defendant VanderKooi directed Sgt.

Bargas to take Plaintiff Johnson’s fingerprints and have the fingerprints stored in

the files and records of the City of Grand Rapids Police Department, without

probable cause, a search warrant, or legal authority to do so.

15. Defendants VanderKooi and Bargas took the above actions against

Plaintiff Johnson, because he is an African-American.

16. At no time on August 15, 2011, did Plaintiff Johnson commit any

offense in violation of the laws of the City of Grand Rapids, State of Michigan, or

the United States.

17. There was no legal cause to justify the seizure of Plaintiff Johnson’s

photographic image and fingerprints.

18. The actions taken by Defendant Bargas and VanderKooi, were

unreasonable and excessive.

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19. Plaintiff Johnson’s constitutionally protected rights that Defendant

Bargas and VanderKooi violated include the following:

a. His right to fair and equal treatment guaranteed and protected by the

Equal Protection Clause of the Fourteenth Amendment.

b. His rights under the Fourth and Fourteenth Amendments to be free

from unlawful search and seizure.

c. His rights under the Fifth Amendment which bars the taking of private

property for public use without just compensation.

d. His right to privacy under the U.S. Constitution;

e. His rights protected by 42 U.S.C. § 1981 and 42 U.S.C. § 1983.

20. As a direct and proximate result of Defendant’s [sic] conduct, Plaintiff

Johnson suffered a loss of freedom, emotional injury, including but not limited to

fright, shock, embarrassment, and humiliation, and other constitutionally

protected rights described above.

Although plaintiff now seeks to expand his claim to encompass a challenge to the length

of his detention and his handcuffing, plaintiff’s complaint itself reflects no such challenge.

Moreover, the record reflects that the focal point of this litigation—from beginning to end—was

not the duration of the stop or the handcuffing, but rather the P&P procedure. At the summary

disposition hearing, for example, trial counsel argued:

And that’s our point, is you have to be careful when you’re going to take

somebody’s pictures or prints. . . .

* * *

So our contention is, no, there’s no reasonable suspicion. There’s no

probable cause to suspect that Mr. Johnson has done anything, and you don’t have

the authority under the Fourth Amendment to take his photographs – plural – and

take his full set of fingerprints.

The P&P procedure has continued to be the focal point on appeal. For example, plaintiff

argues:

At the time of the encounter with Johnson, the law was clearly established

regarding the fact that fingerprints could not be taken without probable cause and

for that reason summary disposition on Johnson’s Fourth Amendment claim was

inappropriate.

* * *

This is a case where a person was subject to detention for the sole purpose of

obtaining fingerprints, without probable cause. Such action violates the Fourth

Amendment . . . .

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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.

* * *

The issue in this case is the appropriateness of the taking of photographs and

fingerprints of innocent people.4

Notwithstanding this focus, plaintiff cursorily asserts on appeal that the singular reference

in paragraph 19(b) of his complaint to “[h]is rights under the Fourth and Fourteenth

Amendments to be free from unlawful search and seizure” were adequate to place defendants on

notice that he was challenging not only the P&P procedure, but the length of his detention and

the fact that he was handcuffed.5 We disagree.

While Michigan is a notice pleading state, Johnson v QFD, Inc, 292 Mich App 359, 368;

807 NW2d 719 (2011), a complaint must still provide reasonable notice to opposing parties. Id.;

see also Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992); MCR 2.111(B)(1). A

defendant should not be left to “guess upon what grounds plaintiff believes recovery is justified”

after reading the complaint. Dacon, 441 Mich at 329. Therefore, MCR 2.111(B)(1) requires that

a theory of liability be supported by “specific allegations reasonably necessary to inform the

adverse party” of the pleader’s claims. Id. In this case, plaintiff provided specific allegations

concerning the P&P procedure; however, the complaint is devoid of any allegations (much less

specific ones) concerning the use of handcuffs or the length of plaintiff’s detention. In fact, the

complaint specifically alleges only that “[t]here was no legal cause to justify the seizure of

Plaintiff Johnson’s photographic image and fingerprints” and contains absolutely no allegations

related to the seizure of plaintiff’s person. The complaint’s general allegation that the

“unreasonable and excessive” actions taken by Bargas and VanderKooi resulted in a violation of

his Fourth Amendment rights is the sort of general allegation that “gives no hint of the facts to

4

Amicus Curiae, The American Civil Liberties Union of Michigan, confines its arguments in

support of plaintiff to the P&P procedure.

5

We note that on appeal plaintiff appears to challenge only the fact that his detention continued

after officers on the scene spoke with witnesses and plaintiff himself. While plaintiff does not

specify the precise length of time during which the detention was allegedly unreasonable,

plaintiff testified at his deposition that he was interviewed by police, his fingerprint and picture

were taken, and he was then handcuffed and allowed to call his mother. He further testified that

5 to 10 minutes elapsed from the time that he called his mother and her arrival, and that he was

let out of the police car and handcuffs after his mother spoke with police. Bargas testified to a

brief interaction with plaintiff’s mother wherein she showed him her identification and identified

plaintiff as her son.

-11-

which it refers.” Dacon, 441 Mich at 329. It can therefore only be interpreted as referring back

to the specific allegations that plaintiff did assert relative to the P&P procedure.

The trial court in this case did not abuse its discretion in declining to read plaintiff’s

general Fourth Amendment allegation as providing sufficient notice to defendants concerning

any and all theories of liability that may have arisen from any portion of plaintiff’s interaction

with police—particularly where the complaint was devoid of any specific allegation concerning

the unreasonableness of the seizure of defendant’s person. Id. at 328. And because plaintiff

never sought to amend his complaint to allege such a challenge, the trial court was not obliged to

offer such an opportunity, and cannot be found to have committed plain error by failing sua

sponte to do so. See Kloain v Schwartz, 272 Mich App 232, 242; 725 NW2d 671 (2006)

(holding that the trial court was not required to sua sponte offer the plaintiff leave to amend his

complaint absent a request for leave to amend or the defendants’ written consent to amend).

For all of these reasons, we must confine our analysis of plaintiff’s Fourth Amendment

challenge and the issue of whether—for purposes of a qualified immunity analysis—plaintiff’s

alleged constitutional rights were clearly established, to the alleged unlawful search and seizure

arising from the officers’ use of the P&P procedure.

2. APPLICATION

“[A] Fourth Amendment search occurs when the government violates a subjective

expectation of privacy that society recognizes as reasonable.” Kyllo v United States, 533 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 of fingerprinting, based on a reasonable suspicion (i.e., a Terry

stop, Terry, 392 US at 20), is per se unreasonable. See Davis v Mississippi, 394 US 721, 722; 89

S Ct 1394, 1395; 22 L Ed 2d 676 (1969). In Davis, the Court explicitly stated that it was not

deciding whether, during a criminal investigation, fingerprints could be obtained in the absence

of probable cause. See id. at 728. (“We have no occasion in this case, however, to determine

whether the requirements of the Fourth Amendment could be met by narrowly circumscribed

procedures for obtaining, during the course of a criminal investigation, the fingerprints of

individuals for whom there is no probable cause to arrest.”). In fact, the Court stated that “[i]t is

arguable, however, that, because of the unique nature of the fingerprinting process, such

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detentions might, under narrowly defined circumstances, be found to comply with the Fourth

Amendment even though there is no probable cause in the traditional sense.” Id. at 727-728.

The Davis Court ultimately decided the issue on the grounds that the petitioner’s detention at the

police headquarters “was not authorized by a judicial officer,” that the “petitioner was

unnecessarily required to undergo two fingerprinting sessions,” and that the “petitioner was not

merely fingerprinted during the [initial] detention but also subjected to interrogation.” Id. at 728.

The conduct challenged in Davis thus occurred at the first level of Fourth Amendment

analysis (i.e., the initial seizure of the petitioner’s person necessary to bring him into contact with

government agents), not the taking of the petitioner’s fingerprints. See Dionisio, 410 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 reasonable suspicion that the

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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

search for purposes of the Fourth Amendment.”) (citation omitted). And the Supreme Court has

suggested that a brief seizure, based on reasonable suspicion, that includes the collection of

information that is regularly exposed to the public, could be permissible. Hayes, 470 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 of privacy in one’s fingerprints.” Nuriel v Young Women’s

Christian Ass’n of Metro Detroit, 186 Mich App 141, 146; 463 NW2d 206 (1990); see also

People v Hulsey, 176 Mich App 566, 569; 440 NW2d 59 (1989), citing Dionisio, 410 US 14-15.

Also, photographing a person as they appear in public does not generally violate any reasonable

expectation of privacy. Sponick v Detroit Police Dept, 49 Mich App 162, 198-199; 211 NW2d

674 (1973); Fry v Ionia Sentinel-Standard, 101 Mich App 725, 728-729; 300 NW2d 687 (1980);

see also 3 Restatement Torts 2d, § 652d.

It is therefore not clearly established in the law that fingerprinting and photographing

someone during the course of an otherwise valid investigatory stop violates the Fourth

Amendment. In fact, prior statements from the United States Supreme Court and this Court

suggest that such a procedure would be permissible under the Fourth Amendment if the initial

stop was justified by a reasonable suspicion. We therefore conclude that Bargas and

VanderKooi were entitled to the protection of qualified immunity regarding defendant’s Fourth

Amendment claims.

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D. FIFTH AMENDMENT RIGHTS

In relevant part, the Fifth Amendment of the United States Constitution provides as

follows:

No person shall . . . be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use, without just

compensation. [US Const, Am V.]

The Fifth Amendment is applicable “to the states through the Fourteenth Amendment, US Const,

Am XIV.” AFT Mich v Michigan, 497 Mich 197, 217; 866 NW2d 782 (2015). A “ ‘taking’ can

encompass governmental interference with rights to both tangible and intangible property,” and

“[t]he term ‘property’ encompasses everything over which a person may have exclusive control

or dominion.” Id. at 216, 218 (quotation marks and citation omitted). “In order to prevail on a

takings claim, a claimant first must demonstrate a cognizable interest in the affected private

property.” Mich Soft Drink Ass’n v Dep’t of Treasury, 206 Mich App 392, 402; 522 NW2d 643

(1994), lv den 448 Mich 898 (1995). “The Constitution neither creates nor defines the scope of

property interests compensable under the Fifth Amendment.” Maritrans Inc v United States, 342

F3d 1344, 1352 (CA Fed, 2003). Rather, “existing rules and understandings and background

principles derived from an independent source, such as state, federal, or common law, define the

dimensions of the requisite property rights for purposes of establishing a cognizable taking.” Id.

(quotation marks and citation omitted).

Plaintiff argued before the trial court that the P&P procedure constituted an unlawful

taking of his “image or likeness” without just compensation. This Court and the Michigan

Supreme Court have recognized a common-law right of privacy that protects against various

types of invasions of privacy including the “[a]ppropriation, for the defendant’s advantage, of the

plaintiff’s name or likeness.” Battaglieri v Mackinac Ctr For Pub Policy, 261 Mich App 296,

300; 680 NW2d 915 (2004), quoting Tobin v Mich Civil Serv Comm, 416 Mich 661; 331 NW2d

184 (1982) (quotation marks and emphasis omitted). Yet, “causes of action for violations of

such a right stem from ‘the interest of the individual in the exclusive use of his own identity, in

so far as it is represented by his name or likeness, and in so far as the use may be of benefit to

him or to others.’ ” Id. at 261 Mich App at 300–301, quoting 3 Restatement Torts, 2d, § 652C,

comment a. Therefore, a person’s likeness and identity “in so far as the use may be of benefit to

him or to others” amounts to “property.” See AFT Mich, 497 Mich at 216. “To generate a

compensable taking, the government must assert its authority to seize title or impair the value of

property.” Id. at 218.

In this case, plaintiff made no argument that the value of his likeness was impaired or that

any defendant seized title to his likeness. Defendants did not interfere with plaintiff’s ability to

use his identity or likeness to benefit plaintiff or others and did not prevent plaintiff from

carrying out any future endeavors to benefit from his likeness. In addition, plaintiff’s

photographs and fingerprints were obtained under the police power rather than power of eminent

domain. See Bennis v Michigan, 516 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

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photographing and fingerprinting person for investigatory purposes constituted a governmental

taking. Thus, Bargas and VanderKooi were entitled to the protection of qualified immunity with

respect to plaintiff’s Fifth Amendment claims.

E. CONCLUSION

The alleged constitutional infirmities of the P&P procedure and the rights asserted by

plaintiff were not clearly established in view of the preexisting law. See White v Pauly, ___ US

___, ___; 137 S Ct 548, 552; 196 L Ed 2d 463 (2017) (“As this Court explained decades ago, the

clearly established law must be ‘particularized’ to the facts of the case. Otherwise, [p]laintiffs

would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified

liability simply by alleging violation of extremely abstract rights.”) (quotation marks and citation

omitted; alterations in White). Bargas and VanderKooi were therefore entitled to the protection

of qualified immunity and to summary disposition under MCR 2.116(C)(7).6

III. MUNICIPAL DEFENDANT

Plaintiff also argues that the trial court erred by granting summary disposition in favor of

the city on plaintiff’s claim for municipal liability. We disagree.

We review de novo a trial court’s grant of summary disposition. See Innovation Ventures

v Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). The trial court granted the city’s

motion for summary disposition under MCR 2.116(C)(10); therefore, the following standards

apply:

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.

When evaluating a motion for summary disposition under MCR 2.116(C)(10), a

trial court considers affidavits, pleadings, depositions, admissions, and other

evidence submitted by the parties . . . in the light most favorable to the party

opposing the motion. Where the proffered evidence fails to establish a genuine

issue regarding any material fact, the moving party is entitled to judgment as a

matter of law. [Id. at 507 (quotation marks and citation omitted; alteration in

original).]

“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt

to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v

Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Moreover,

6

We note also that there was no evidence presented to the trial court that VanderKooi

participated in the P&P of plaintiff or ordered Bargas to perform the P&P. To the contrary,

Bargas testified at his deposition that it was his decision to perform the P&P. Consequently,

even apart from the application of qualified immunity, the evidence presented to the trial court

would not support plaintiff’s claim against VanderKooi, and VanderKooi would be entitled to

summary disposition under MCR 2.116(C)(10).

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When a motion under subrule (C)(10) is made and supported as provided in this

rule, an adverse party may not rest upon the mere allegations or denials of his or

her pleading, but must, by affidavits or as otherwise provided in this rule, set forth

specific facts showing that there is a genuine issue for trial. If the adverse party

does not so respond, judgment, if appropriate, shall be entered against him or her.

[MCR 2.116(G)(4).]

Under 42 USC § 1983, a municipality may be held liable for unconstitutional policies,

but § 1983 does not provide for respondeat superior liability. Payton v Detroit, 211 Mich App

375, 398; 536 NW2d 233 (1995). Accordingly, “[a] municipality cannot be held liable under

§ 1983 solely because it employs a tortfeasor, and, “in order to sustain a cause of action against a

municipality under § 1983, a plaintiff must show that an action pursuant to official municipal

policy of some nature caused a constitutional tort.” Id. (quotation marks and citation omitted).

In order for a municipality to be liable, a plaintiff must show that an official municipal policy or

custom caused his injury. Connick v Thompson, 563 US 51, 60–61; 131 S Ct 1350, 1359; 179 L

Ed 2d 417 (2011); Los Angeles Co, Cal v Humphries, 562 US 29, 30-31, 36; 131 S Ct 447, 449,

452; 178 L Ed 2d 460 (2010). “Official municipal policy includes the decisions of a

government’s lawmakers, the acts of its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.” Connick, 563 at US 61.

In this case, plaintiff argues that the city has a policy of requiring P&Ps of “innocent

pedestrians who do not happen to have ID on them.” In support of this contention, plaintiff

alleges that VanderKooi was involved in eleven incidents over five years where persons

“innocent of any wrongdoing,” including plaintiff, were subject to the P&P procedure, and

another incident where a person was only photographed. The following pieces of documentary

evidence submitted to the trial court make reference to this alleged policy or custom:

1. The city’s answer to a request for admission, in which the city stated in relevant part:

[O]fficers taking photos and thumbprints of individuals is a custom or practice of

the City of Grand Rapids and has been for decades. The custom or practice has

changed over those years with the evolution of technology. . . . [A]lthough it is

primarily a thumbprint, another finger or fingers might be printed instead of or in

addition to a thumb. . . . A photograph and print might be taken of an individual

when the individual does not have identification on them and the officer is in the

course of writing a civil infraction or appearance ticket. A photograph and print

might be taken in the course of a field interrogation or a stop if appropriate based

on the facts and circumstance of that incident.

2. Bargas’s deposition testimony, in which he agreed that he performed the P&P

procedure in accordance with departmental policy.

3. VanderKooi’s deposition testimony, in which the following colloquy occurred between

VanderKooi and plaintiff’s counsel:

Q. Okay. So, you would agree with the statement that police officers

taking photographs and thumbprints known as P and P of individuals with whom

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they made contact is a commonly known longstanding custom and practice of the

Grand Rapids Police Department?

A. When I started in 1980 they were doing P and P’s yes.

4. An excerpt from the Grand Rapids Police Manual of Procedures (dated 2004) that

contain the following statements relevant to the P&P procedure:

3. Officers issuing appearance tickets shall:

* * *

b. Picture and print all subjects without good identification.

5. An excerpt from the Grand Rapids Police Department Field Training Manual (dated

2009) that contains the following statements relevant to the P&P procedure:

Under the heading FIELD INTERROGATIONS:

5. Field Interrogation reports

* * *

d. Disposition of suspect (arrest, picture and print, released, etc).

B. TRAINING CONSIDERATIONS

* * *

9. Picture and print procedures.

6. An excerpt from the same Field Training manual related to traffic violations that lists

the actions an officer may take when a motorist is driving with their driver’s license suspended,

revoked, or denied and states in relevant part:

(3) Issue citation and obtain a picture and print or arrest.

7. An excerpt from the Grand Rapids Police Department Patrol Sergeant Field Training

Tasks Manual (which we note indicates that it was revised in 2013, after the incident in question)

that provides in relevant part:

TRAFFIC/ACCIDENT PROCEDURES

* * *

3) Picture and Prints.

a) Carry a Digital Camera and related supplies.

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b) Photograph subject clearly and take a readable thumbprint.

(1) Record on P&P card, Subject Identifier (name,

race, sex, etc). Include License Plate in picture if

driver or occupant of vehicle.

We conclude that this evidence does not suffice to show that any alleged violation of

plaintiff’s constitutional rights was the result of an official municipal policy or custom. Plaintiff

argues in his brief on appeal that the trial court erred when it failed “to recognize that the custom

and practice that [plaintiff] challenges is not the taking of prints and pictures, generally, but the

custom and practice of taking prints and pictures of innocent citizens,” specifically the P&P of

persons taken in the course of a field interrogation or stop. However, the documentation relied

upon by plaintiff does not indicate that the city has a policy of requiring P&Ps during field

interrogations and stops. The only references to P&P with respect to field interrogations and

stops, as opposed to the writing of “appearance tickets” or citations for driving with a suspended,

revoked, or denied driver’s license, are found in the guidelines for describing the disposition of

the subject in the field interrogation report and the reference to “training considerations” in the

Field Training Manual. Nothing about these references instruct GRPD officers to take P&Ps

during every field interrogation or stop or every such encounter where the subject lacks official

identification or to P&P “innocent citizens.” In fact, the majority of the references to the use of

the P&P procedures involve its use during the issuance of citations that do not result in arrest; the

issuance of these citations would involve, absent bad faith on the part of the issuing officer, at

least a good-faith belief that probable cause existed to suspect that an ordinance or statute was

violated. See MCL 257.727c; MCL 764.1d; MCL 764.9f; Detroit v Recorder’s Court Judge,

Traffic and Ordinance Div, 85 Mich App 284, 292; 271 NW2d 202 (1978). Further, the Patrol

Sergeant Field Training Tasks Manual, to the extent it is even relevant to events that occurred

before its revision date, discusses P&Ps not in the context of field interrogations or stops, but

rather in the section labelled “TRAFFIC/ACCIDENT PROCEDURES”.

We conclude that the action that plaintiff alleges to have caused the deprivation of his

rights, i.e., a P&P during a field interrogation or stop, did not “implement[] or execute[] a policy

statement, ordinance, regulation, or decision officially adopted and promulgated” by the city,

whether through GRPD or otherwise. Monell, 436 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, specifically that he did not believe

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plaintiff’s claim of identity (apparently based at least in part on Bargas’s belief that plaintiff

could not have received a tattoo in Grand Rapids if he was under 18), the fact that previous

burglaries from cars had been reported in that parking lot, and his belief that latent prints had

been taken from the previous burglaries that could either support the conclusion that plaintiff was

a suspect in the burglaries or eliminate him as a suspect. Nothing in Bargas’s testimony

indicates that he was following a custom or policy that had the force of law when he performed a

P&P on plaintiff. And VanderKooi’s testimony similarly reveals his individualized choices to

perform P&Ps or to order them performed in the cases identified by plaintiff.7

“Where a plaintiff claims that the municipality has not directly inflicted an injury, but

nonetheless has caused an employee to do so, rigorous standards of culpability and causation

must be applied to ensure that the municipality is not held liable solely for the actions of its

employee.” Bd of Co Comm’rs of Bryan Co, Oklahoma, 520 US 397, 405; 117 S Ct 1382; 137 L

Ed 2d 626 (1997). In this case, even assuming that plaintiff could demonstrate a violation of his

rights, plaintiff cannot show that the city “specifically directed” Bargas to violate plaintiff’s

rights. Id. at 406. Not every constitutional violation by an officer in the field supports a finding

of municipal liability for his employer; “a local government may not be sued under § 1983 for an

injury inflicted solely by its employees or agents.” Monell, 436 US at 693. We therefore

conclude that plaintiff failed to raise a genuine issue of material fact concerning whether

Bargas’s action was taken “under color of some official policy” whether written or unwritten,

when the most that can be gleaned from the evidence presented to the trial court was that the

P&P procedure was available for use by GRPD officers and could, depending on particularized

circumstances, be used during the field interrogation of a person who was never arrested or

charged with a crime. The trial court properly granted summary disposition in favor of the city

under MCR 2.116(C)(10).

IV. PLAINTIFF’S EXPERT WITNESS

Finally, plaintiff argues that the trial court erred by granting defendants’ motion to strike

Dr. Terrill’s testimony. We disagree. We review for an abuse of discretion a trial court’s

determinations regarding “[w]hether a witness is qualified to render an expert opinion and the

actual admissibility of the expert’s testimony.” Tate ex rel Estate of Hall v Detroit Receiving

Hosp, 249 Mich App 212, 215; 642 NW2d 346 (2002). “A trial court does not abuse its

discretion when its decision falls within the range of principled outcomes.” Rock v Crocker, 499

Mich 247, 260; 884 NW2d 227 (2016).

7

As stated above, VanderKooi did not order Bargas to perform the P&P. Nor did VanderKooi’s

testimony support the inference that Bargas was acting according to the policy alleged by

plaintiff, as VanderKooi testified to his belief that Bargas had “consensually obtained” plaintiff’s

fingerprints.

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MRE 702 governs expert testimony and provides as follows:

If the court determines that scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise if (1) the

testimony is based on sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.

MRE 702 “requires the circuit court to ensure that each aspect of an expert witness’s

testimony, including the underlying data and methodology, is reliable,” and it “incorporates the

standards of reliability that the United States Supreme Court articulated in Daubert v Merrell

Dow Pharm, Inc,” 509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 (1993). Elher v Misra, 499

Mich 11, 22; 878 NW2d 790 (2016). Daubert requires that the trial court ensure all scientific

testimony is relevant and reliable. Id. at 22-23. Although not dispositive, absence of supporting

literature “is an important factor in determining the admissibility of expert witness testimony.”

Id. at 23. Notably, “it is generally not sufficient to simply point to an expert’s experience and

background to argue that the expert’s opinion is reliable and, therefore, admissible.” Id.

(quotation marks and citation omitted).

In Kumho Tire Co, Ltd v Carmichael, 526 US 137, 152; 119 S Ct 1167, 1176; 143 L Ed

2d 238 (1999), the United States Supreme Court held that “an expert, whether basing testimony

upon professional studies or personal experience, employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in the relevant field.” In other

words, Daubert’s general gatekeeping function applies to all expert testimony—whether the

expert relies on scientific principles or “skill- or experience-based observation.” Id. at 151-152.

However, “[t]he trial court must have the same kind of latitude in deciding how to test an

expert’s reliability, and to decide whether or when special briefing or other proceedings are

needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant

testimony is reliable.” Id. at 152. “[W]hether Daubert’s specific factors are, or are not,

reasonable measures of reliability in a particular case is a matter that the law grants the trial

judge broad latitude to determine.” Id. at 153.

The trial court did not abuse its discretion in striking Dr. Terrill’s proposed expert

testimony concerning the reasonableness of Bargas’s actions in the instant case. Plaintiff cites to

numerous cases in support of his argument that expert testimony can be used to “educate the trier

of fact on police methods and procedures, patterns of expected police response to given

situations, and whether those are legal or illegal.” However, none of these cases stand for the

proposition that expert testimony that invades the province of the jury by making a legal

conclusion is permissible. “The opinion of an expert may not extend to the creation of new legal

definitions and standards and to legal conclusions.” Lenawee Co v Wagley, 301 Mich App 134,

160-161; 836 NW2d 193 (2013). Expert witnesses may not invade the province of the jury and

are “not permitted to tell the jury how to decide the case.” Carson Fischer Potts & Hyman v

Hyman, 220 Mich App 116, 122-123; 559 NW2d 54 (1996).

-21-

In this case, Dr. Terrill’s opinion that Bargas’s conduct was unreasonable was a legal

conclusion based on Terrill’s own interpretation of the same facts that a jury would be tasked

with interpreting. See DeMerrell v Cheboygan, 206 Fed Appx 418, 426-427 (CA 6, 2006)

(holding that “Plaintiff–Appellant’s expert testified as to a legal conclusion because he stated

that “it was objectively unreasonable for Officer White to shoot Mr. DeMerrell” and that the

expert made the following other improper legal conclusions: (1) “a reasonable officer on the

scene would not have concluded at the time that there existed probable cause that Mr. DeMerrell

posed a significant threat of death or serious physical injury to the officer or others” and (2) “use

of deadly force by [Officer White] was improper and unnecessary”); Hygh v Jacobs, 961 F2d

359, 364 (CA 2, 1992) (comparing expert testimony that a police officer’s “conduct was not

‘justified under the circumstances,’ not ‘warranted under the circumstances,’ and ‘totally

improper’ ” to improper expert testimony that a person was negligent and holding that the expert

“testimony regarding the ultimate legal conclusion entrusted to the jury crossed the line and

should have been excluded”).8

Further, although plaintiff does not present argument on this issue, much of Dr. Terrill’s

testimony related to plaintiff’s abandoned equal protection claim and was therefore not relevant

to the issues at hand. MRE 401. The trial court did not abuse its discretion in striking Dr.

Terrill’s testimony. Further, even if Dr. Terrill’s testimony was stricken in error, nothing in his

testimony would alter our conclusions in Parts II and III, above. Any error in the trial court’s

granting of defendants’ motion to strike was therefore harmless. See Lewis v LeGrow, 258 Mich

App 175, 200; 670 NW2d 675 (2003); MCR 2.613(A).

Affirmed.

/s/ Mark T. Boonstra

/s/ Colleen A. O’Brien

Wilder, P.J., did not participate.

8

Lower federal court decisions “are not binding on state courts” but may be persuasive.

Bienenstock & Assoc, Inc v Lowry, 314 Mich App 508, 515; 887 NW2d 237 (2016) (quotation

marks and citation omitted).

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