William Gardner v. Jason Evans

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0061p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No: 1:12-cv-1338 ┐

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WILLIAM RUSSELL GARDNER, et al., │

Plaintiffs-Appellants, │

│

v. │

│ No. 17-1933

JASON EVANS, et al., >

│

Defendants-Appellees. │

│

Case No: 1:12-cv-914 │

│

HENRY LEE HOLSEY,

│

Plaintiff-Appellant, │

│

v. │

│

AARON WIEBER, et al.,

│

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

Nos. 1:12-cv-00914; 1:12-cv-01338—Robert J. Jonker, Chief District Judge.

Argued: January 17, 2019

Decided and Filed: April 4, 2019

Before: MERRITT, GUY, and MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: J. Nicholas Bostic, Lansing, Michigan, for Appellants. Mary Massaron,

PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: J. Nicholas

Bostic, Lansing, Michigan, for Appellants. Mary Massaron, PLUNKETT COONEY,

Bloomfield Hills, Michigan, for Appellees.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 2

_________________

OPINION

_________________

RALPH B. GUY, JR., Circuit Judge. Plaintiffs are Lansing, Michigan residents whose

homes were raided by police and subsequently deemed uninhabitable. Police raided the homes

based upon search warrants for drugs, but once inside, they invited building code compliance

officers in as well. Plaintiffs sued under 42 U.S.C. § 1983 alleging a variety of constitutional

claims against the police officers, the compliance officers, and the City of Lansing. The district

court granted summary judgment for defendants on all counts. We affirm in part and reverse in

part.

I. BACKGROUND

A. The Raids and Arrests

Some drug raids in Lansing appear to have followed a pattern. In the course of their

duties, police took notice of residences where they believed drug trafficking was occurring.

Through controlled buys, confidential informants, trash pulls, and direct surveillance, police

officers amassed probable cause to secure search warrants. Courts issued warrants and teams of

officers soon executed them. The searches were aggressive: officers knocked in doors with

rams, used flashbangs and, according to plaintiffs, left the homes in complete disarray. During

or immediately following a search, a police officer would sometimes call a housing code

compliance officer (“inspector”) to the scene. In some instances, the inspector would soon

appear and inspect the home. Reliably, the inspector would find code violations such as water

heaters without inspection tags, bare electrical wiring, and non-working smoke detectors. The

inspector would then declare the home unsafe for occupancy, which is often called “red tagging.”

When a home has been red tagged, the occupants must leave immediately and may not occupy

the home until the violations have been corrected.

This pattern played out for each of the plaintiffs in this case. They resided at four

different Lansing homes and over the course of eleven months each of their homes was searched

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and red tagged. Some of the plaintiffs were arrested, but in each case the charges were

dismissed.1

B. The Lawsuits

One of the residents, Henry Holsey, filed a federal § 1983 suit against the City of

Lansing, an individual police officer, and an individual inspector. The rest of the plaintiffs filed

a single subsequent suit against other officers and inspectors, along with the City. Given the

cases’ similarities, the district court consolidated them, although the two cases remained on

separate active dockets.

Following discovery, defendants filed a motion for summary judgment in each case. The

district court granted summary judgment in favor of defendants on all counts, except “to the

extent Defendants’ Motion for Summary Judgment . . . seeks summary judgment in favor of [the

Defendant inspectors] on Plaintiffs’ claim that these Defendants failed to provide a

constitutionally appropriate post-deprivation review process, and summary judgment in favor of

the City of Lansing on Plaintiffs’ claim that the City of Lansing has a policy and practice of

failing to provide a constitutionally appropriate post-deprivation review process[.]”

The inspectors filed an interlocutory appeal, asserting that the district court erred in not

granting them qualified immunity. Defendants then moved to stay the proceedings pending the

appeal. The district court granted the stay, explaining that although there were good reasons to

“keep the case moving toward the imminent trial process” it would instead exercise its discretion

to stay the case principally because:

[T]he Court sees relatively few issues of fact in the case, and believes a ruling

from the Court of Appeals on the key legal issues will be helpful in moving the

matter to conclusion, one way or the other. In particular, the Court recognizes

that the individual Defendants were using city forms as part of the challenged red

tag process, and so the policy and practices claim, and the qualified immunity

issues are likely to raise common and potentially controlling legal issues.

1The record includes evidence of a search of a fifth home, where two additional plaintiffs resided. Those

plaintiffs, however, are not parties to this appeal.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 4

C. The First Appeal

In their statement of the parties and issues before this court, the inspectors limited their

appeal to a single question: “whether the individual inspectors are protected with qualified

immunity from plaintiffs’ due process claims?” Briefing and argument followed, and we

reversed the district court’s denial of qualified immunity and remanded the case. Gardner v.

Evans, 811 F.3d 843, 848 (6th Cir. 2016). The district court had reasoned that one of our prior

cases, Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir. 1994), had clearly established that a

meaningful post-deprivation review process is constitutionally required, and “that direct,

personal notice of such a process to affected individuals is also required.” Gardner v. Evans, No.

1:12-cv-1338, 2015 WL 403166, at *18 (W.D. Mich. Jan. 28, 2015) (Gardner I). We held,

however, that Flatford was distinguishable and concluded that “any inadequacies in the notice

provided by the Inspectors would not have been apparent to a reasonable official solely upon the

basis of Flatford.” Gardner, 811 F.3d at 847. Accordingly, we stated:

For purposes of deciding this case, we need not determine whether the red-tags

provided by the Inspectors meet the constitutional notice standard that we have

just outlined. Even if we assume, without deciding, that the Tenants are correct

and that the red-tags were constitutionally infirm, the Tenants cannot satisfy the

second prong of the qualified immunity analysis, namely, whether this

constitutional notice requirement was clearly established.

Id.

D. The Remand

The contours of the remand proved contentious. Defendants asserted that the only matter

properly left for the district court to decide was whether the content of the notices given to

plaintiffs after their homes were red tagged were “constitutionally sufficient to satisfy post-

deprivation due process.” Plaintiffs conceded that this court’s decision immunized the inspectors

against claims about the content of the notices, but they insisted that there was still an open

question as to their immunity. Plaintiffs asserted that they could still prevail on the theory that

the inspectors failed to give post-deprivation notice of any kind—a theory they admittedly had

not raised until that point. Given the theory’s belated introduction, the district court declined to

No. 17-1933 Gardner, et al. v. Evans, et al. Page 5

permit an amendment to the pleadings or further discovery and simply allowed plaintiffs and the

City to file cross motions for summary judgment.

The plaintiffs and the City each filed motions for summary judgment. The district court

granted the City’s motion and denied plaintiffs’. It then entered judgment in favor of all named

defendants and against all named plaintiffs, based upon both its pre-appeal and post-appeal

opinions. Plaintiffs appealed.

II. DISCUSSION

A. Invalid Search Warrants

All the initial searches in this case were made pursuant to warrants. The evidence

supporting each warrant varied, and we discuss each below. Our standard for reviewing them,

however, is common to all.

The Fourth Amendment requires warrants to be supported by “probable cause,” which we

have defined as “reasonable grounds for belief, supported by less than prima facie proof but

more than mere suspicion [that] there is a fair probability that evidence of a crime will be located

on the premises of the proposed search.” United States v. Jackson, 470 F.3d 299, 306 (6th Cir.

2006) (internal citations and quotation marks omitted). We judge an affidavit that supports a

warrant “on the totality of the circumstances, rather than line-by-line scrutiny” to ensure that the

judicial officer who issued the warrant could properly consider the “veracity and basis of

knowledge of persons supplying hearsay information” and properly determine that there was “a

fair probability that contraband or evidence of a crime will be found in a particular place.” Id.

(quoting United States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000)).

1. 923 W. Hillsdale – The Gardner House

Two police officers’ information led to the search of William Gardner’s house on

Hillsdale Street. According to a police report, on December 3, 2009, Officer Lynne Mark of the

Mason Police Department received an in-person tip from a citizen. The citizen identified himself

and explained that a family member had been held at gunpoint over a drug deal. The citizen

gave Officer Mark a note that read, “Oxicotton – Irma Gardner Hillsdale Lansing” and consented

No. 17-1933 Gardner, et al. v. Evans, et al. Page 6

to be contacted by the police if necessary. The next day, Officer Mark verified that one “Erma

Gardner” indeed lived on that street, so Mark passed the information along to the Lansing Police

Department, which has jurisdiction over the address. The report came to Lansing Police Officer

Jason Evans. According to Officer Evans’s affidavit, he picked up the trash in front of the

Hillsdale house on December 9, 2009. In it he found cocaine residue, a used syringe tube, and

packaging materials which, in Evans’s experience, are the type used in drug trafficking. Evans

also found residency paperwork linking one “Erma G. Williams” to the address, and he stated

that a search in the police department’s record system confirmed that “Erma G. Williams” and

“Irma Gardner” are the same person. A Lansing district court judge signed a search warrant

based upon Evans’s affidavit on the same day that Evans searched the trash, and the warrant was

executed the next day.

William Gardner attacks the warrant on three grounds. He contends that the affidavit

lacked enough information to connect Irma Gardner to the address, the informant was not

reliable, and the information was stale by the time the warrant was executed. We reject all three

arguments.

To begin, the warrant was not stale. Although the record does not reveal when the citizen

tipster’s family member was held at gunpoint, it was evidently urgent enough that he approached

the Mason police officer at a chamber of commerce event to report it. After he did, the police

moved swiftly to obtain and execute the warrant. There was also enough evidence to link Erma

Gardner to the address because the warrant did not hinge solely on the informant’s information.

The subsequent trash pull revealed evidence that Erma Gardner indeed still lived at the address

and at least someone in the home was handling drugs. The trash pull also made the informant’s

reliability a non-issue. Armed with the informant’s tip, Officer Evans confirmed that there was

good reason to believe drug activity was happening in the home. Accordingly, the district court

properly found that probable cause supported the warrant.

2. 3622 Karen Street – The Hudson House

James Hudson owned his home on Karen Street and in 2010 he lived there with family

members Roosevelt and Javon Hudson. James Hudson had a history of dealing drugs from the

No. 17-1933 Gardner, et al. v. Evans, et al. Page 7

Karen Street house. According to Lansing Police Officer John Cosme’s affidavit, Hudson was

arrested at the same address in 2006 after a warranted search turned up heroin, marijuana, crack

cocaine, and ten firearms. So, when in April 2010 an anonymous source informed Cosme that

the home was again being used as a drug house, Cosme visited the address. There he observed

five garbage bags on the curb in front of the home. He asked the garbage truck driver to deliver

the bags to a separate truck parked nearby. Cosme searched the garbage bags and found a baggie

with cocaine residue along with residency paperwork for Hudson. A magistrate signed a warrant

based upon the affidavit on April 30, and it was executed that same day.2

The Hudsons challenge the warrant on staleness grounds. When the district court

rejected this argument, it observed that the “crime at issue was drug trafficking from a particular

residence—more a regenerating conspiracy by an entrenched criminal from a secure operational

base than a fleeting encounter.” Gardner I, 2015 WL 403166, at *13. The court thus concluded

that under our decision in United States v. Frechette, 583 F.3d 374 (6th Cir. 2009), “the

information in the affidavit was not stale.” Id.

Frechette concerned a search warrant for child pornography that was based on an online

purchase made 16 months earlier and linked to a specific street address. Frechette, 583 F.3d at

377. We reasoned that “child pornography is not a fleeting crime” and thus “the same time

limitations that have been applied to more fleeting crimes do not control the staleness inquiry for

child pornography.” Id. at 378 (quoting United States v. Paull, 551 F.3d 516, 522 (6th Cir.

2009)). We contrasted this with drug trafficking crimes, where evidence goes stale more quickly

“in the absence of information indicating an ongoing and continuing narcotics operation.” Id.

(quoting United States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir. 2005)). When a criminal

enterprise is ongoing at the same location, “the passage of time becomes less significant.”

United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001).

2The dates that Cosme received the tip and pulled the trash are not clear. According to his affidavit, he got

the tip on April 17 and pulled the trash on April 10. He conceded in his deposition that these dates must be wrong,

because the tip preceded and led to the trash pull. As the district court pointed out, however, there was no evidence

that the trash pull occurred any earlier than April 10, 2010.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 8

Here, the warrant was issued 20 days after Cosme discovered the baggie. The only other

evidence of an ongoing operation was the drug activity from four years earlier. A finding of

probable cause is therefore tenuous. We decline to resolve the matter, however, because even if

the evidence was too stale to establish probable cause, we conclude that “the warrant [was not]

so lacking in indicia of probable cause that official belief in the existence of probable cause

[was] unreasonable.” Mills v. City of Barbourville, 389 F.3d 568, 577 (6th Cir. 2004).

Accordingly, we affirm the district court’s grant of summary judgment to Cosme as to the search

claim on the basis of qualified immunity.

3. 1043 Bensch Street – The Louden House

Controlled buys led to the search of Keosha Louden’s home. According to Lansing

Police Officer Dylan Zehr’s affidavit, he had been investigating suspected drug trafficking from

Louden’s Bensch Street home. On April 15, 2010, he staged a controlled buy. After searching a

confidential informant and equipping him with prerecorded currency, Zehr dropped the

informant off near Louden’s home with instructions to purchase crack cocaine inside. The

informant met with a man outside the home and the two went in. They reemerged soon after and

the informant got back into Zehr’s car. The substance given to the informant within the home

field-tested positive for cocaine. On the basis of this information, a magistrate signed a search

warrant for the home on April 16, and it was executed that same day.

Although Louden challenged the validity of the warrant in the complaint and identified it

as an issue on appeal, she did not pursue any discussion of it in her briefs. We therefore consider

the argument abandoned.

4. 914 Pompton Circle – The Holsey House

A lengthy investigation of another suspected drug dealer, a man named Woods, led police

to Henry Holsey’s home on Pompton Circle. According to Lansing Police Officer Aaron

Wieber’s affidavit, on March 30, 2009, Lansing police witnessed Woods sell cocaine to a

confidential informant. When the deal was over, the police followed Woods as he drove to and

then entered 914 Pompton Circle. Nine days later, the confidential informant arranged another

purchase from Woods. This time, police were watching the Pompton house. They observed

No. 17-1933 Gardner, et al. v. Evans, et al. Page 9

Woods’s car there and watched him go directly from the house to the drug deal. When the deal

was over, Woods returned to the Pompton house. A week later, the police staged another

controlled buy with Woods. Although this time he came to the deal from another location, he

again went directly to Pompton after the deal was over. Later that month, the Federal Drug

Enforcement Agency used a camera to monitor the Pompton house and agents observed Woods

come and go from the house, without knocking, at least 20 times. More controlled buys

followed, but for these, Woods came and went from a separate address on Michigan Avenue. On

June 17, 2009, however, Woods departed the Michigan Avenue address, spent fifteen minutes at

the Pompton house,3 and then returned to Michigan Avenue.

Through his affidavit, Officer Wieber averred that Woods was likely using both the

Pompton address and the Michigan Avenue address in furtherance of his drug-trafficking

operation. Based on the affidavit, a Lansing district court judge signed a search warrant for the

Pompton address on June 22, 2009. The warrant was executed the same day.

Holsey argues that there were insufficient reasons to rely on the informant’s information

and not enough evidence to link the drug trafficking to his home. The argument concerning the

informant’s reliability is easily dispensed with because the warrant did not rest on the

informant’s reliability. The police used him to execute controlled buys, which they orchestrated

and closely monitored. In this case, the affiant’s “personal knowledge” of the informant is of no

moment.

The nexus of the home to drug trafficking was also sufficient. The affidavit did not link

Holsey himself to any drug transactions, but it did implicate his home. “The critical element in a

reasonable search is not that the owner of property is suspected of crime but that there is

reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on

the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

“Thus, in determining whether the warrant affidavit supplied probable cause, the only relevant

question is whether the affidavit gave a reasonable basis for believing there were drugs or

3The affidavit is slightly unclear on this point. It states that Woods left the Michigan Avenue address “and

went to 1309 W. Jolly Rd.1316 Pompton where he stayed for approx. 15 minutes. WOODS then drove back to” the

Michigan Avenue house and went inside.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 10

evidence of drug trafficking” at the Pompton house. United States v. Burney, 778 F.3d 536, 540

(6th Cir. 2015). Here, a known drug dealer came and went from the searched home repeatedly,

and on at least three occasions did so immediately before or after a controlled drug buy. Taken

as a whole, the affidavit demonstrates that the nexus between the known drug dealing and the

Pompton house was sufficient to establish probable cause for the search.

B. Unreasonable Destruction

All the parties agree that some measure of disarray will likely result from a search.

Plaintiffs contend, however, that the searches of their homes were unreasonably destructive in

violation of the Fourth Amendment. The claims and evidence of the search in each home are

summarized below.

1. 923 W. Hillsdale – The Gardner House

Evidence of the damage done to William Gardner’s home is limited to his answers to

interrogatories and his affidavit. According to his affidavit:

[T]he officers damaged or disabled smoke/fire detectors, dumped food and

cooking ingredients on the floor and countertops, removed chilled or frozen meat

from the refrigerator/freezer and left it out to spoil, dumped over beds and

furniture, removed clothing and other personal items from closets, cabinets and

dressers leaving hallways, passageways, doorways and other pathways blocked

and cluttered.

His interrogatory answers also listed specific items that were damaged, including a dryer vent, a

floor drain cover, light fixtures, smoke detectors, and damage to walls.

2. 3622 Karen Street – The Hudson House

The only evidence of damage done to the house on Karen Street comes from James

Hudson’s affidavits. Hudson claimed that he “offered keys to the police for two locked doors

and a locked freezer but they kicked in the two doors and pried open the freezer,” and though the

“bedroom door had keys in the lock,” the police officers “broke the keys off after breaking down

the door.” He also swore that officers disabled smoke alarms, turned over beds, removed

clothing and other personal items from closets, and left pathways blocked and cluttered.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 11

3. 1043 Bensch Street – The Louden House

Keosha Louden provided an affidavit and interrogatory answers to support her damage

claims. She testified through her affidavit that the police officers clogged up a pipe in the

basement that caused sewage to accumulate, dumped over beds, and removed items from closets

and left them blocking pathways. She also swore that the officers dumped out garbage bags,

dumped out food that resulted in “an infestation of rodents and insects,” knocked an electrical

outlet and conduit loose from the wall, stuffed “foreign objects into ductwork and registers and

placed flammable materials near appliances with pilot lights.” In her interrogatory answers, she

asserted that five of the code deficiencies were caused by the police during their search:

(1) hazardous plumbing, (2) inadequate sanitation, (3) faulty weather protection, (4) hazardous

electrical wiring, and (5) hazardous mechanical equipment.

4. 914 Pompton Circle – The Holsey House

Evidence of destruction at Holsey’s home was limited. During his deposition, Holsey

testified that officers dumped his clothes out of his closet, flipped his bed, broke open bags of

flour and corn meal, dumped everything out of his freezer, and left empty bottles of shampoo on

the bathroom floor. In his brief, Holsey contends that he also testified that other code violations

did not exist when he was told to leave his home, but the cited portions of his deposition do not

support such a claim. The code inspector took photographs of the home, but the copies in the

record are of poor quality.

5. Analysis

The district court found that plaintiffs failed to create “a jury-submissible issue on

whether officers exceeded reasonable limits in execution of the search warrants.” Gardner I,

2015 WL 403166, at *15. We disagree.

The needs of any given search will vary, and thus “it is generally left to the discretion of

the executing officers to determine the details of how best to proceed with the performance of a

search authorized by warrant—subject of course to the general Fourth Amendment protection

‘against unreasonable searches and seizures.’” Dalia v. United States, 441 U.S. 238, 257 (1979)

No. 17-1933 Gardner, et al. v. Evans, et al. Page 12

(footnote omitted). This case-by-case inquiry is governed by a standard of reasonableness, and

when there are material factual disputes, the question of reasonableness is left to the jury. See

Hill v. McIntyre, 884 F.2d 271, 277–78 (6th Cir. 1989).

There are material factual disputes here. The destruction to the homes detailed above is

serious and if plaintiffs were as compliant as they allege, the level of destruction was possibly

neither necessary nor reasonable. Cf. Bonds v. Cox, 20 F.3d 697, 702–03 (6th Cir. 1994)

(holding that “broken doors, mutilated vinyl siding, a cracked commode, holes in walls, broken

dishes, and trampled personal belongings” constituted a seizure and remanding for a

determination as to reasonableness). In Hill, we made special mention of how the officers

executing a search warrant for drugs “broke open numerous packing boxes in the various rooms

of the house, spilled out dry goods, [and] poured food on the floor,” and remanded the case so

that a jury could determine the reasonableness of the search. 884 F.2d at 274.

The plaintiffs here make similar allegations and worse. For instance, Gardner, Louden

and Holsey allege that food was removed from their freezers and left out—including meat—and

in the case of Louden, a rodent infestation followed. The damage allegedly done in each search

was compounded by the red tagging that followed the search. Rummaging through drawers and

flipping over mattresses is somewhat to be expected in a search for small contraband. The

tearing open of dry goods and even the removal of refrigerated items may be justified when

searching officers have reason to believe that drugs have been cleverly concealed. But this is

different from causing code violations, calling for a code inspector based on those violations, and

in doing so, keeping the residents from entering the home to clean up the mess for the better part

of a month. There are sufficient facts in dispute to make the district court’s basis for granting

summary judgment inappropriate.

Nevertheless, the defendant police officers are entitled to summary judgment for a

different reason. “Under § 1983, there is no respondeat superior or vicarious liability.” Flagg v.

City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013) (citing Collins v. City of Harker Heights, 503

U.S. 115, 122 (1992)). Rather, “[e]ach defendant’s liability must be assessed individually based

on his own actions.” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). A plaintiff must

therefore show how each defendant “directly participated in the alleged misconduct, at least by

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encouraging, implicitly authorizing, approving or knowingly acquiescing in the misconduct, if

not carrying it out himself.” Flagg, 715 F.3d at 174 (quotation marks and citation omitted).

Plaintiffs fail to make the necessary showings. They blame Evans for the damage to the

Gardner house, but they concede that Evans was not present when the search warrant was

executed. They blame Wieber for the damage at the Holsey house, but he testified that he

arrived at the house after the search was complete and plaintiffs offer no rebutting evidence.

Zehr and Cosme were present for the searches of the homes they are accused of damaging (the

Louden and Hudson homes, respectively) but plaintiffs point to no evidence that the officers

personally caused any of the alleged damage or observed others causing it.

Plaintiffs argue that the named officers should still be held liable because they were the

affiants for the warrants that led to the searches, but plaintiffs fail to provide any precedent for

such a theory of liability. The cases they rely on involved police officers who were personally

present for fellow officers’ alleged misconduct but failed to intervene. See Floyd v. City of

Detroit, 518 F.3d 398, 406 (6th Cir. 2008); Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).

Such scenarios are a well-established basis for liability, but a far cry from holding a warrant’s

affiant liable for the fallout when that warrant is executed. To the contrary, we have emphasized

that even an officer who is present at the scene of a search is not subject to liability “without a

showing of direct responsibility for the action[.]” Ghandi v. Police Dep’t of City of Detroit,

747 F.2d 338, 352 (6th Cir. 1984); see also Burley v. Gagacki, 729 F.3d 610, 620 (6th Cir. 2013)

(affirming summary judgment for officers who were not in a home where excessive force was

alleged to have occurred, but were instead providing perimeter security outside).

“Our cases teach that, in order to hold [an officer] liable for the use of excessive force,

[the plaintiff] must prove that he (1) actively participated in the use of excessive force,

(2) supervised the officer who used excessive force, or (3) owed the victim a duty of protection

against the use of excessive force.” Turner, 119 F.3d at 429. Plaintiffs have not provided

evidence that the defendants’ role as affiants placed them in any of those three categories. The

defendant police officers were therefore entitled to summary judgment. At the district court,

plaintiffs also sought to hold the City liable for the alleged damage, but they do not pursue that

claim on appeal, thus ending the matter.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 14

C. Invasion of Privacy

Plaintiffs assert that the police officers violated their right to privacy, protected by the

Fourth Amendment, by inviting the inspectors into the homes. They contend that inviting the

inspectors into their homes exceeded the officers’ authority under the search warrants. The

district court granted summary judgment to the police officers because “the code inspectors had

authority to enter Plaintiffs’ premises on the strength of the criminal search warrant being

executed by police officers without going through the formality of obtaining a separate

administrative warrant” and thus found “no constitutional violation based on this claim.”

Gardner I, 2015 WL 403166, at *16.4

Plaintiffs liken their case to Bills v. Aseltine, 958 F.2d 697 (6th Cir. 1992). There, police

officers believed two General Motors employees had stolen equipment from the company’s

proving grounds. The police obtained a warrant to search the employees’ home only for a

specific generator. One of the police officers conducting the search, however, invited a security

guard from General Motors to come along with the intention that the guard might be able to

identify other GM equipment in plain view. The district court granted summary judgment for the

officers, reasoning that non-officers may be present during a search when acting in aid to an

officer’s search. We reversed, and explained:

The available evidence seems to show that police actively procured a private

person to tour plaintiff’s home with a camera for purposes utterly unconnected

with the search warrant they had already executed. Whether this breached the

trust under which they held the premises in their complete command, or whether,

stated another way, this unreasonably exceeded the scope of the warrant, is a

question for a jury in this case. Summary judgment should not have been granted.

958 F.2d at 705.

This case is distinguishable from Bills in two ways. The first difference concerns timing.

In Bills, the police officer invited the security guard prior to conducting the search and entering

the home. Here, the police officers contacted the inspectors only after entering the home

4The district court granted summary judgment to the City for the same reason. But as with the claims

concerning the execution of the search warrants, plaintiffs did not pursue this particular claim against the City on

appeal.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 15

pursuant to the warrant and discovering the code violations. The second difference concerns the

invitees. Here, unlike Bills, the invitees were state actors who, under the right conditions, may

search a home themselves. These differences do not render Bills inapplicable, but they compel

us to separate the police officers’ actions into two stages: reporting the code violations to the

inspectors and then admitting them into the residences.

On the matter of reporting the violations, we agree with the district court’s grant of

summary judgment for defendants. We have explained that “the plain view exception permits

the warrantless seizure of an object provided that (1) the officer is lawfully positioned in a place

from which the object can be plainly viewed; (2) the incriminating character of the object is

immediately apparent; and, (3) the officer has a lawful right of access to the object itself.”

United States v. Bishop, 338 F.3d 623, 626 (6th Cir. 2003) (citing Horton v. California, 496 U.S.

128, 136–37 (1990)). We have already concluded that the officers entered each house under a

valid warrant. The disconnected smoke alarms and exposed wiring would be apparent even to

someone untrained in local building codes. It was thus permissible and perhaps incumbent upon

police officers to alert housing officials of the safety hazards in the homes.

There is a difference, however, between alerting housing officials of a possible violation

and opening the door to those officials once they arrive. As we explained in Bills, when police

execute a search warrant, they “are temporarily placed in control of the premises and its

occupants” and it “is as though the premises were given to the officers in trust for such time as

may be required to execute their search in safety and then depart.” Bills, 958 F.2d at 704. But

they “may violate that trust and exceed the scope of the authority implicitly granted them by their

warrant when they permit unauthorized invasions of privacy by third parties who have no

connection to the search warrant or the officers’ purposes for being on the premises.” Id. Here,

the police officers were given specific permission to search the houses for cocaine or other

controlled substances along with the paraphernalia for mixing, packaging, and selling it—

nothing more. Allowing inspectors into the home would not have aided them in finding those

things.

Even so, defendants suggest that because the criminal search was “far more intrusive”

than a search by inspectors, plaintiffs lacked an expectation of privacy. To begin, it is not a

No. 17-1933 Gardner, et al. v. Evans, et al. Page 16

foregone conclusion that a code-compliance search is necessarily less intrusive than a search for

drugs. More importantly, we have held that additional parties must generally have their own

warrants.

In United States v. Sanchez, we held that an ATF agent had no right to be present during

a warranted search for drugs, let alone conduct his own search, even though the same informant

had told police that the home had both drugs and explosives within it. 509 F.2d 886, 890 (6th

Cir. 1975). We explained that “the warrant authorized only the local officers to enter and search

the [home] for narcotics. It could not be used to validate the entrance of a federal officer having

both probable cause and the opportunity to obtain a separate warrant to search for different items

of property.” Id. at 889.

The same holds true here. The City of Lansing empowers inspectors to inspect homes to

“secure compliance” with the City’s building code. See Lansing, Michigan Code of Ordinances

§ 1460.45(B) (“Housing Code”). The police officers’ search warrants had nothing to do with

building code violations, and thus provided no authority for the inspectors to join the officers in

the house. Admittedly, police officers do “have the implicit authority under a search warrant to

conduct a protective sweep to assure their safety and their control over the premises.” Bills, 958

F.2d at 705. But there is nothing in the record to suggest that an on-site inspector was necessary

to confirm it was safe for the officers to search the homes. To the contrary, there is evidence that

the searches were entirely complete by the time the inspectors arrived. The police officers

simply had no authority to admit third parties—even state actors—who had no warrant and could

provide no assistance to the police officers’ own searches. We therefore reject the district court’s

basis for granting summary judgment to the police officers on the invasion-of-privacy claims.

Once again, however, we must assess each defendant’s liability individually and “based

on his own actions.” Binay, 601 F.3d at 650. There is very limited evidence that the named

police officers admitted the inspectors into the homes, and there is other evidence that suggests

they did not. Evans is accused of admitting inspector Brand into Gardner’s home, but Evans

testified that he was only at the house very briefly and that he was not the one who called for an

inspector. For his part, Brand testified that he asked permission to enter Gardner’s house and a

man about Gardner’s age who sat handcuffed on the couch assented. Cosme is accused of

No. 17-1933 Gardner, et al. v. Evans, et al. Page 17

admitting inspector Scrimger into the Hudson house, but he had no specific recollection of who

called for or admitted an inspector. And Scrimger could not remember which officer greeted

him when he arrived at the house, but he testified that a man claiming to be the owner of the

house gave him permission to enter it. Zehr is accused of admitting inspector Sanford into

Louden’s home, but he did not testify on the matter. Although Sanford testified that a police

officer admitted him into the house, he could not recall who it was. Finally, Wieber is accused

of admitting Sanford into Holsey’s home, but he testified that he was only there for less than five

minutes and Sanford testified that an officer by the name of Johnson admitted him into the

house.

The only evidence that directly implicates the named police officers are the plaintiffs’

affidavits. Each affidavit contains a single sentence on the matter and uses the same phrase. For

example, Gardner’s states, “While Officer Evans had control of 923 W. Hillsdale, he invited and

allowed Code Compliance Officer David Brand from City of Lansing’s Office of Code

compliance in to Affiant’s residence without asking for consent from Affiant.” Louden’s and

James Hudson’s affidavits read the same way, but with the names and addresses changed. Each

affidavit purports to be based on “personal knowledge,” but none provides further context on

whether the affiant observed the admission of the inspector, or how the affiant came to identify

the police officer by name or concluded that the officer “had control” of the house.5 The

affiants’ assertions that the named defendant officers “had control” of each house seems instead

to track plaintiffs’ erroneous legal assertion that the officer who serves as the affiant in securing

a search warrant assumes control of the premises searched.

The posture of this case requires us to look at the evidence in the light most favorable to

plaintiffs. In doing so, we neither make credibility determinations nor weigh the evidence.

Ingram v. City of Columbus, 185 F.3d 579, 586 (6th Cir. 1999) (citing Anderson v. Liberty

Lobby, 477 U.S. 242, 255 (1986)). But plaintiffs must present more than the “mere existence of

a scintilla of evidence” to support their position such that “reasonable jurors could find by a

5Holsey’s affidavit is the outlier. It states, “I was present when a person entered and identified himself as a

code compliance officer and placed a red-tag on my home.” But his affidavit does not state that a police officer

admitted the code compliance officer, much less identify the police officer by name.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 18

preponderance of the evidence that [they are] entitled to a verdict[.]” Anderson, 477 U.S. at 252.

Thus, a form affidavit that fails to explain how an unsupported conclusion was reached—and is

repeatedly contradicted by other evidence—can fail to constitute competent evidence

establishing a genuine issue of material fact. See, e.g., Leahy v. Trans Jones, Inc., 996 F.2d 136,

139 (6th Cir. 1993).

Plaintiffs have not presented sufficient evidence that the named police officers admitted

the inspectors. The inspectors are therefore entitled to summary judgment on those claims.

D. Warrantless Search by the Inspectors

The Fourth Amendment protects the right of the people “to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures” and states that “no

Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. The Supreme Court has

therefore held that searches of homes “conducted outside the judicial process, without prior

approval by a judge or a magistrate judge, are per se unreasonable subject only to a few

specifically established and well-delineated exceptions.” City of Los Angeles v. Patel, 135 S. Ct.

2443, 2452 (2015). We recently noted that one such exception is an “administrative search[]

designed to assure compliance with building codes, including codes designed to prevent

buildings from becoming dangerous to tenants or neighbors.” Benjamin v. Stemple, 915 F.3d

1066, 1069 (6th Cir. 2019) (citing Patel, 135 S. Ct. at 2452). In such cases, however, if the

search is made without a warrant, the person whose home is to be searched “must be afforded an

opportunity to obtain precompliance review before a neutral decisionmaker.” Patel, 135 S. Ct. at

2452. “Although the Supreme Court ‘has never attempted to prescribe the exact form an

opportunity for precompliance review must take,’ the review scheme at a minimum must give

the property owner a meaningful chance to contest an administrative-search request in front of a

neutral party before the search occurs.” Stemple, 915 F.3d at 1069 (quoting Patel, 135 S.Ct. at

2452).

The City of Lansing has a comprehensive scheme for enforcing its housing code. Among

other things, its housing code explicitly requires inspectors to obtain a warrant from a court in all

No. 17-1933 Gardner, et al. v. Evans, et al. Page 19

non-emergency situations. See Housing Code § 1460.47(a), (d). The code provides the process

to obtain one:

The Manager of Code Compliance shall prepare the warrant, stating the address

of the structure to be inspected, the nature of the inspection, as defined in this

Code or other applicable codes or statutes, and the reasons for the inspection.

It shall be appropriate and sufficient to set forth the basis for inspection

established in section 1460.45 (Inspections). If the warrant is issued pursuant to

section 1460.45, it shall state that it is for the purposes set forth in 1460.45.

Id. § 1460.47(b). Notably, if the Office of Code Compliance requests an inspection, the housing

code requires landlords to notify tenants of the request and “make a good faith effort to obtain

permission for an inspection from them, and arrange for the inspection.” Id. § 1460.45(e).

The parties agree that the inspectors failed to give plaintiffs any notice or opportunity for

review prior to red tagging their homes.6 And they agree that the inspectors failed to obtain

warrants prior to entering and searching the plaintiffs’ homes. There is a factual dispute as to

whether some of the plaintiffs consented to the searches, but for the purposes of evaluating

defendants’ motions for summary judgment, the district court presumed there was no consent to

any of the searches. We do the same here and therefore face two questions. First, were the

inspectors’ warrantless searches of plaintiffs’ homes unconstitutional? And second, if so, was

the right of plaintiffs to be free from such searches clearly established at the time?

We begin with the second question and hold that the right to be free from a warrantless

code-compliance search with no alternative pre-compliance review was clearly established at the

time plaintiffs’ homes were searched. The Supreme Court affirmed this right in Camara and has

reaffirmed it since then. See, e.g., Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); see also

Patel, 135 S. Ct. at 2452 (reaffirming Camara, although postdating the searches here). The

district court seemed to reach the same conclusion in its own analysis. See Gardner I, 2015 WL

403166, at *16 (citing Camara). But the court then concluded:

6This contrasted with Holsey’s prior experiences. Prior to the search, an inspector had inspected Holsey’s

home, inside and out, three separate times. After the first visit, the inspector noted several violations that needed

correction. When the inspector returned, he confirmed that the violations had been corrected. The inspector visited

a third and final time one month before the search at the prompting of a neighbor. The inspector did not cite any

violations.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 20

[T]he code inspectors had authority to enter Plaintiffs’ premises on the strength of

the criminal search warrant being executed by police officers without going

through the formality of obtaining a separate administrative warrant. Each of the

code searches involved here occurred during, or immediately after, execution of a

criminal search warrant, and each was based on information directly observed by

officers executing the search warrant. Under those circumstances, to require a

code officer to obtain a separate administrative warrant would be an empty

formality.

Id.

We disagree. To the extent that police officers incidentally discovered code violations in

the process of executing their own search warrant, their call to the Office of Code Compliance

would serve only as an antecedent for an inspector to either seek permission from the owner or

occupant to search the premises, or failing to get such permission, to seek a warrant from a court.

That a warrant would likely issue is of no moment. Cf. Sanchez, 509 F.2d at 888 (holding that

police officers should have secured an additional warrant for explosives in the two hours before

their midnight search for drugs). Securing either permission or a warrant is a necessary step

demanded by the Fourth Amendment and not an empty formality.

The defendant inspectors also argue that exigent circumstances justified their warrantless

entry. Warrantless entries into homes do not violate the Fourth Amendment if they are

necessitated by exigent circumstances. United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir.

1996). Here, however, there is a genuine issue of material fact concerning whether the

inspectors could have reasonably believed that exigent circumstances excused the warrant

requirement in each case. There is no record evidence indicating the inspectors even

contemplated securing warrants, much less that they believed the homes’ conditions posed an

emergency or that time was of the essence. One of the police officers testified that Lansing

police officers call for immediate follow-up inspections by inspectors in around 90% of the drug

raids that they conduct. A reasonable jury could find that such routine use of the inspectors in

these situations precludes concluding that the inspectors believed exigent circumstances existed

each time they were called. Inspectors Brand, Scrimger, and Sanford are therefore not entitled to

summary judgment on the Fourth Amendment counts.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 21

This does not mean, however, that plaintiffs are necessarily entitled to judgment as a

matter of law. As noted, the parties dispute whether plaintiffs gave consent to the inspectors. If

they did, no warrant was needed. There is therefore a genuine issue of material fact. Moreover,

exigent circumstances, narrow as they are, can forgive an inspector’s failure to obtain a warrant.

The condition of the homes and the nature of the code violations are other fact questions that are

properly put to a jury.

E. Due Process Surrounding the Red Tags

Plaintiffs bring a three-part due-process challenge against the way their homes were red

tagged and the fallout that followed. As we have already noted, red tagging automatically

excludes occupants from their homes, so plaintiffs allege that the placement of a red tag deprived

them of their property rights. Plaintiffs’ first two arguments concern the initial tagging: they

claim (1) that the inspectors arbitrarily red tagged their homes; and (2) because the alleged code

violations did not pose emergencies, they were entitled to pre-deprivation notice prior to the

tagging (i.e., notice that their homes would be red tagged). In their third argument, plaintiffs

assert that defendants failed to provide them notice of their right to appeal the red taggings after

they occurred.

1. Pre-Deprivation

We begin with the pre-deprivation claims and look to our decision in Flatford v. City of

Monroe as a guide. In that case, a building inspector evaluated an apartment building pursuant to

a warrant. After the inspector discovered “dilapidation and disrepair” that was “among the worst

he had seen” and fearing that tenants “faced an immediate risk of electrocution or fire,” he

“conferred with the city attorney, posted condemnation signs on all entrances and . . . ordered the

building vacated within two and a half hours.” 17 F.3d 162, 165 (6th Cir. 1994). Some tenants

sued, alleging that they were not afforded adequate pre-deprivation notice. Those tenants, like

the plaintiffs in this case, asserted that the immediate evacuation was too rash given that the

violations could be quickly and easily remedied. Id. at 168. We concluded that the record

contained “facts from which a reasonable building inspector could conclude that the

No. 17-1933 Gardner, et al. v. Evans, et al. Page 22

occupants . . . might be imminently endangered,” and therefore held that the inspector was

entitled to qualified immunity. Id.

When viewing the evidence in a light favorable to plaintiffs in this case, we cannot reach

the same conclusion here. The record does not clearly establish what some of the cited code

violations entailed, nor does it reveal the severity of the risks posed by the violations. Take

James Hudson’s home. The only evidence in the record detailing his home’s code violations is a

notice issued by the Office of Code Compliance. Many of the violations are minor enough that

they would plainly fail to justify a red tag: the smoke detector was not installed high enough, the

caulk in the bathtub had deteriorated, and some of the electrical outlets were missing covers.

Others are too vague to allow one to decipher their severity, such as accumulation of “debris”

which was purportedly a violation of the code’s prohibition against inadequate sanitation and

hazardous or unsanitary premises. Defendant Scrimger, who performed the inspection, provided

little additional clarity during his deposition. The other notices and inspectors’ depositions

present comparable ambiguities.

In their depositions, some inspectors were unable to articulate standards by which they

judged when a code violation became sufficiently severe to justify the application of a red tag

and the immediate eviction of the home’s occupants. They arguably did not note that any sense

of urgency or particular emergency animated their decisions to red tag the homes in question.

The inspectors sometimes used “standard language that comes up on the computer” to detail the

conditions of the homes rather than articulating any specific or particularly pressing danger that

they might have observed. Some of the incident reports generated by the police note that the

homes were red tagged because of “unsatisfactory living conditions.” It stands to reason,

however, that a living condition may be “unsatisfactory” without rising to the level of an

emergency justifying the immediate deprivation of an exceedingly important property interest

without the benefit of a hearing.

In sum, there is a genuine dispute of material fact concerning whether it would be

objectively unreasonable for an inspector to designate the houses immediately uninhabitable

based on the record evidence of their conditions. Nevertheless, the inspectors would be immune

from suit if the plaintiffs did not have a clearly established right to be free from eviction based

No. 17-1933 Gardner, et al. v. Evans, et al. Page 23

upon non-emergency code violations and without a hearing. Our holding in Flatford, however,

foreclosed that possibility.

In the underlying opinion that led to the Flatford appeal, the district court wrote:

[T]he building inspector could be expected to know that ordering tenants to vacate

their apartment on two and one-half hours’ notice could violate the tenants’

constitutional rights. The building inspector even took the city attorney with him

to inspect the apartment. Clearly, the person charged with the authority to put

people out of their homes could be expected to be well-versed in the rights of

those whom he evicts. . . . Thus, the court finds that neither the building inspector

nor the police officers are entitled to qualified immunity[.]

Flatford v. City of Monroe, 794 F. Supp. 227, 234 (E.D. Mich. 1992). When we subsequently

reversed the district court’s immunity determination, we did not do so on the ground that the

right was not clearly established, but rather, the “dispositive issue” was whether the inspector’s

“conclusion that an emergency situation existed was an objectively unreasonable decision[.]”

Flatford, 17 F.3d at 167. We explained:

The record clearly contains facts from which a reasonable building inspector

could conclude that the occupants, and particularly the children, might be

imminently endangered. Even if in hindsight we conclude that [the inspector’s]

decision to evacuate was erroneous, the [tenants’] evidence fails to prove that a

reasonable building inspector could not conclude that the condition of the

wooden-framed structure posed an immediate threat to the safety of its occupants.

We, therefore, hold that [the inspector] is entitled to qualified immunity for any

failure to provide predeprivation process.

Id. at 168. We noted that in 1972, “the Supreme Court held that due process requires notice and

a hearing prior to eviction.” Id. at 167 (citing Fuentes v. Shevin, 407 U.S. 67 (1972)). We

concluded that the plaintiffs had “a clearly established right to a pre-eviction hearing . . . in the

absence of exigent circumstances.” Id. The inspectors here are neither immune from suit nor

entitled to summary judgment on the pre-deprivation claims.

Each plaintiff also included the City as a defendant in their pre-deprivation due-process

counts. Their notice of issues on appeal arguably references the pre-deprivation claims,7 and

7The statement of issues frames the claims against the City as “whether the City of Lansing adopted and

implemented a policy of using the police and code compliance and used a defective notice of correction process to

deny its citizens due process.”

No. 17-1933 Gardner, et al. v. Evans, et al. Page 24

plaintiffs’ opening brief addresses municipal liability for the post-deprivation claims, but it lacks

any discussion of why the City should be held liable on the pre-deprivation claims. We therefore

deem those arguments abandoned.

2. Post-Deprivation

We next turn to the post-deprivation claims. All the plaintiffs received red tags but notice

beyond that varied. Holsey and Louden testified that they did not receive any notice other than

the red tag itself. Gardner affirmed that he received a correction notice, but not until several

months after his home was red tagged. The record is not clear whether the Hudsons received

anything beyond the red tag.

Notice beyond the red tags matters because, as we observed in the prior interlocutory

appeal, “none of the red-tags provided any information regarding the occupant’s right to appeal

the inspector’s decision and receive an administrative hearing.” Gardner v. Evans, 811 F.3d

843, 845 (6th Cir. 2016). The tags simply stated:

You must contact the undersigned, no later than seven days before the compliance

due date, to set up an appointment to meet at the structure (to verify that all

corrections have been completed) or to acquire an authorized extension. Before

the re-inspection you must obtain all required permits and have those repairs

inspected and approved by the appropriate inspector.

All violations must be corrected with approved materials and methods. If you

have any questions or concerns about complying within the time indicated, you

may contact at (517) 483-4064 Monday through Thursday between the hours of

8–9 AM or 12–1 PM [Name of the officer to contact.]

Id. And as we explained:

The red-tag notices failed to reveal that § 1460.12 of the Lansing Housing and

Premises Code outlines a post-deprivation appeals process and directs that if an

evicted occupant fails to file an appeal within twenty days after receiving a red-

tag, the occupant waives the right to administrative review. Unaware of these

requirements, none of the Tenants filed an appeal within the twenty-day period,

and thus all of them inadvertently waived their right to an administrative review.

Without recourse to any administrative remedy, the Tenants’ sole option was to

pursue a judicial remedy.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 25

Id. at 846. Plaintiffs claim that the City and the inspectors violated their due-process rights by

failing to apprise them of their right to appeal.

Prior to the interlocutory appeal, the district court found that neither the City nor the

inspectors were entitled to summary judgment on the post-deprivation due-process claims. The

court largely rested its conclusion on our decision in Flatford because, in the district court’s

view, the Flatford decision “clearly established . . . that a meaningful post-deprivation review

process is constitutionally required, and that direct, personal notice of such a process to affected

individuals is also required.” Gardner I, 2015 WL 403166, at *18. The district court rejected

the idea that the City’s housing code itself constitutes adequate notice because “Flatford requires

actual notice, not constructive notice[.]” Id. The district court also pointed out that the City’s

housing code requires notifying only the owner of a red-tagged home about the appeal process—

not the tenants. Id.

We distinguished Flatford on interlocutory appeal, and the case returned to the district

court. See Gardner, 811 F.3d at 847–48. On remand, the district court reconsidered the post-

deprivation notice and concluded that the City was entitled to summary judgment. The district

court reasoned that plaintiffs were given adequate notice because the red tags included a phone

number to call with questions and information about the appeals process could be found online.

See Gardner v. Evans, No. 1:12-cv-1338, 2017 WL 4512568, at *3 (W.D. Mich. Aug. 11, 2017)

(“Gardner II”).

There is no “all-embracing test for deciding due process claims.” Dusenbery v. United

States, 534 U.S. 161, 168 (2002). The Supreme Court has approved the use of the three-factor

test from Mathews v. Eldridge, 424 U.S. 319 (1976), as well as the “more straightforward test of

reasonableness under the circumstances” articulated in Mullane v. Central Hanover Bank &

Trust Company, 339 U.S. 306, 314 (1950). Id. Eldridge focused on the process used for

discontinuing a person’s Social Security disability benefits. Mullane, on the other hand, focused

on the adequacy of the government’s notice of a cash forfeiture. We believe Mullane provides

the more fitting test in this case because plaintiffs do not challenge the adequacy of the post-

deprivation proceedings, but only their notice of those proceedings. See id. at 168 (“Since

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Mullane was decided, we have regularly turned to it when confronted with questions regarding

the adequacy of the method used to give notice.”).

Under Mullane, we ask whether the notice was “reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Mullane, 339 U.S. at 314. The Court’s opinion in

Mullane further elaborated on how to undertake this inquiry:

The notice must be of such nature as reasonably to convey the required

information, and it must afford a reasonable time for those interested to make

their appearance. But if with due regard for the practicalities and peculiarities of

the case these conditions are reasonably met the constitutional requirements are

satisfied. . . .

[W]hen notice is a person’s due, process which is a mere gesture is not

due process. The means employed must be such as one desirous of

actually informing the absentee might reasonably adopt to accomplish it.

The reasonableness and hence the constitutional validity of any chosen method

may be defended on the ground that it is in itself reasonably certain to inform

those affected, or, where conditions do not reasonably permit such notice, that the

form chosen is not substantially less likely to bring home notice than other of the

feasible and customary substitutes.

Id. at 314–16 (internal citations omitted).

After our decision in Flatford, the Supreme Court reviewed the adequacy of post-

deprivation notice in City of West Covina v. Perkins, 525 U.S. 234 (1999). There, police had

seized the plaintiffs’ personal property in the course of a valid search and though they left a

notice of what they had seized, they did not provide information on the plaintiffs’ remedies to

recover the property. The Supreme Court held that the Fourth Amendment did not require the

City to “take other steps” to inform the plaintiffs of their options because “[o]nce the property

owner is informed that his property has been seized, he can turn to these public sources to learn

about the remedial procedures available to him.” 525 U.S. at 241.

Importantly, the Court in West Covina distinguished its holding from its prior decision in

Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978). The Court explained that in

Memphis Light, it had held that due process required a public electric utility to inform a customer

“not only of the planned [service] termination, but also of the availability and general contours of

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the internal administrative procedure for resolving the accounting dispute.” Id. at 241–42 (citing

Memphis Light, 436 U.S. at 13–15). But the Court explained that “[i]n requiring notice of the

administrative procedures, however, we relied not on any general principle that the government

must provide notice of the procedures for protecting one’s property interests but on the fact that

the administrative procedures at issue were not described in any publicly available document.”

Id. Rather, a customer’s opportunity to invoke the remedial procedures depended on word-of-

mouth referrals. Id.

Here, it is undisputed that details concerning the appeals process were available to the

public on the City of Lansing’s website. But that does not necessarily settle the matter. It is not

a foregone conclusion that the mere posting of information on a city’s website is a “reasonably

calculated” way, under all the circumstances, to apprise persons evicted from their homes that

they may appeal the red tagging.

To begin, evictions are a particularly significant deprivation, arguably more so than the

temporary deprivation of certain pieces of property contemplated by the Supreme Court in West

Covina. See West Covina, 525 U.S. at 236 (discussing the confiscation of photos, an address

book, guns and ammunition, and $2,629 in cash). An eviction becomes all the more serious

when, as here, a resident is evicted with no prior notice. Cf. Grayden v. Rhodes, 345 F.3d 1225,

1243 (11th Cir. 2003) (recognizing the exceptional difficulty in being evicted with 36-hours’

notice). In the case of Keosha Louden, for instance, this meant immediately finding a place to

sleep both for herself and for her five children. Those temporary lodgings may or may not have

given them access to a computer or the internet. Compounding the difficulties, mail is not

delivered to red-tagged homes. Thus, with no prior notice, the now-homeless plaintiffs had

20 days to learn that they could appeal this decision, as well as properly file their appeals.

The record does not reveal how, in 2012, a visitor to the website could discover the

appeal information, but it was conceivably less than obvious. There is evidence in the record

that the website, for more than a year, had out-of-date information regarding the applicable

authority for issuing red tags. And it took the sustained efforts of the district court and the

attorneys on both sides to simply track down the applicable ordinance language. As the district

court put it, “the litigation history of this case demonstrates [that] finding the applicable City

No. 17-1933 Gardner, et al. v. Evans, et al. Page 28

ordinances—whether on paper or online—is going to take longer than the twenty days the

ordinances apparently allow for appeal.” Gardner I, 2015 WL 403166, at *18; see also

Grayden, 345 F.3d at 1243 (collecting Supreme Court cases in support of the idea that citizens

require some amount of time to “educate themselves about the law before they can wield the

rights dedicated to them under it”). In this way, the case is more like Memphis Light than West

Covina.

Even so, the City points out that the red-tag notices provided the name and phone number

of the inspector to call with questions. Thus, according to the City, if plaintiffs were curious

about their options after the red tagging, all they needed to do was call the number. The district

court made the same observation when it likened the case to our decision in Silvernail v. County

of Kent, 385 F.3d 601 (6th Cir. 2004). See Gardner II, 2017 WL 4512568, at *3. In Silvernail,

we confronted notices issued to the writers of dishonored checks who faced the prospect of a $25

assessment fee. We employed the balancing test of Eldridge and concluded that providing a

phone number that the recipient could call satisfied the requirements of due process because it

was “reasonably calculated to inform” the recipients of the allegations against them and

“provided a means for responding to the allegations.” 384 F.3d at 604–05. The district court

conceded that in this case the plaintiffs’ interest in remaining in their homes “is greater than the

private interest in Silvernail,” but concluded that “the fundamental analysis is the same” because

the red-tag notice “describes corrections needed for compliance” and “provides a number to call

with ‘questions or concerns about complying within the time indicated.’” Gardner II, 2017 WL

4512568, at *3.

We agree that the red tags provided adequate notice to the homeowners but disagree as to

the tenants and other occupants of the homes who were forced to immediately evacuate the

homes due to the red taggings. An evicted tenant may appeal the red tagging of her home

through the City’s appeal process because she is “directly affected.” See Housing Code

§ 1460.01(q). But the information about remedying violations and the contact information

provided by the red tag would give her no indication of her opportunity to appeal. The

information is exclusively oriented toward realizing repairs to the home, not contesting the red

tagging decision in the first place. The inspector whose name and number are listed is the person

No. 17-1933 Gardner, et al. v. Evans, et al. Page 29

who will “verify that all corrections have been completed” and is specifically to be called

regarding “questions or concerns about complying within the time indicated[.]” Gardner,

811 F.3d at 846 (emphasis added). An evicted tenant would have no reason to think calling the

inspector would do her any good should she seek to appeal the red tagging decision on the basis

of being an “affected person.” And even if she did call the number, the record reveals that the

inspector might be of little help. Inspector Scott Sanford—whose name appeared on the notice

attached to Louden’s home—testified, “I don’t know what the legal rights of a tenant would be

as far as, you know, appealing something that he doesn’t own to the City. So you would have to

talk to the city attorney’s office about that.”

On balance, a jury could find that the City’s mere reliance on its website and the limited

language of the red tag notices was not reasonably calculated to notify evicted tenants of their

right to appeal and their 20-day window to do so. We therefore reject the district court’s basis

for granting summary judgment to the City and the inspectors on the post-deprivation notice

claims. Whether those defendants can be held liable under § 1983 is another question.

“A municipality is a ‘person’ under 42 U.S.C. § 1983, and so can be held liable for

constitutional injuries for which it is responsible.” Morgan v. Fairfield Cty., 903 F.3d 553, 565

(6th Cir. 2018) (citing Monell v. Dep’t of Soc. Svs., 436 U.S. 658, 690 (1978)). “The scope of

that responsibility does not include respondeat superior liability,” so one route for holding

municipalities liable—and the one Plaintiffs argue for—is showing that the harms at issue were

“caused by the implementation of municipal policies or customs[.]” Id. (citing Garner v.

Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).

There is no dispute that it was the City’s policy to simply provide the type of notices that

plaintiffs received. The City’s ordinance requires only that “the owner or the person or persons

responsible for the structure” be given the notice of correction that accompanies red tagging.

See Housing Code § 1460.09(c). As the district court observed prior to the interlocutory appeal,

“the undisputed record reflects that the City of Lansing has a policy and practice of providing

inadequate post-deprivation process to individuals whose homes are red-tagged—not only the

Plaintiffs in this case, but all such individuals.” Gardner I, 2015 WL 403166, at *19.

A reasonable jury could find that the harms at issue were caused by the lack of notice. All of the

No. 17-1933 Gardner, et al. v. Evans, et al. Page 30

tenant plaintiffs were displaced from their homes due to the red tagging and none appealed the

decision. Thus, consistent with the district court’s initial conclusion, we likewise conclude that

the City is not entitled to summary judgment on the post-deprivation claims.

This still leaves the claims against the inspectors themselves, which we partially

addressed in the prior interlocutory appeal. Consistent with our prior decision, the defendant

inspectors are immune from Counts 3 (against Brand), 3 and 18 (against Sanford), and

24 (against Scrimger) insofar as those counts allege that the inspectors violated plaintiffs’ due-

process rights by failing to include in the red-tag notices “an explicit reference to the availability

of any post-deprivation appeals process and the manner in [which] such an appeal may be

pursued.” Gardner, 811 F.3d at 848. The inspectors contend that this ends the matter, but

plaintiffs counter that they still have a viable claim. Plaintiffs argue that the inspectors failed to

give them reasonable notice at any point, apart from the allegedly deficient red tags discussed in

the first appeal.

As an initial matter, we agree with plaintiffs that this theory of liability was neither

waived nor forfeited for failure to articulate it while opposing defendants’ motion for summary

judgment. The district court duly exercised its discretion to not reopen the pleadings or permit

additional discovery in aid of plaintiffs advancing the theory. But that does not mean plaintiffs

may not pursue it. The operative complaint encompassed this theory of liability by stating that

the defendant inspectors did not provide the plaintiffs “with post-deprivation notice of their right

to appeal the order to vacate their residence to the Board of Appeals” or “their right to challenge

the Board of Appeals decision to a court of competent jurisdiction.” Our focus is now on

whether the universe of record evidence before us could support the necessary factual findings to

prevail on that theory. And our holding in the prior appeal was narrow. We reversed the

decision of the district court because Flatford did not “clearly establish[] that a notice of eviction

must include a direct explanation of the post-deprivation appeals process.” Gardner, 811 F.3d at

845 (emphasis added). The issue is properly before us.

Even so, we conclude that the inspectors are immune from suit on the entirety of the due-

process counts against them. Plaintiffs insist that Flatford clearly established their right to

receive notice, at some point, about their right to appeal. We agree that plaintiffs had a clearly

No. 17-1933 Gardner, et al. v. Evans, et al. Page 31

established right to receive notice of their right to appeal, but they did not have the right to

receive it from the inspectors who red tagged their homes. In Flatford, we explained that the

actions of City’s Director of Building and Safety were objectively unreasonable because “despite

actual knowledge of the [tenants’] possessory interests, [the director] took no action on their

behalf. It is too plain for argument that the [tenants], who were barred from entering their home,

have at least a clearly-established right to process of the sort that [the director] afforded to their

landlord.” Flatford, 17 F.3d at 169. We immediately distinguished our holding, however, from

a similar case in the Seventh Circuit:

The Seventh Circuit reached a different conclusion in McGee v. Bauer, 956 F.2d

730 (7th Cir.1992), where a homeowner was dispossessed of his home under

perceived exigent circumstances. Although troubled by the building inspector’s

failure to advise the plaintiff of his right to a hearing, the court reasoned that the

inspector’s omission was not unreasonable since it was not his but a city

attorney’s duty to advise the plaintiff of his legal rights. This case, however, is

distinguishable by the fact that [the director] is not merely a building inspector but

the highest official of the City’s Building Safety Department, vested with the

statutory duties of commencing proceedings against those responsible for

dangerous structures.

Id. at 169 n.7. Here, plaintiffs have sued the individual inspectors who red tagged their homes,

not any other, higher-up officials. In that respect, the case is more akin to the Seventh Circuit’s

decision in McGee and less like our own decision in Flatford. Summary judgment for the

inspectors on the post-deprivation claims was therefore appropriate.

F. False Arrest and Malicious Prosecution

William Gardner and the plaintiffs who were arrested at the Karen Street house accused

the defendant police officers of violating the Fourth Amendment through false arrests and

malicious prosecutions, and also brought a state-law count for false arrest. The district court

granted summary judgment on all these counts. Only Gardner appeals the court’s decision on his

claims, which he brought solely against Officer Evans.

Gardner appears to have been detained twice. He was first detained and possibly arrested

on December 9, 2009, the day his home was searched. He was then later arrested on August 3,

2010 on charges stemming from evidence found during the December search. Gardner’s false-

No. 17-1933 Gardner, et al. v. Evans, et al. Page 32

arrest and malicious-prosecution claims against Evans in the amended complaint focus on the

2010 arrest. The amended complaint asserts that Evans “caused the arrest of Plaintiff William

Gardner by swearing to a felony complaint and arrest warrant . . . .” The complaint, however, is

not record evidence, and Evans testified that although the “prosecuting attorney warrant request

form” seeking Gardner’s prosecution bore his badge number, he was not the one to “fill out the

warrant request.”

In some circumstances, liability can attach to non-arresting officers, but the inquiry still

turns on probable cause for the arrest itself. See Voyticky v. Vill. of Timberlake, 412 F.3d 669,

677 (6th Cir. 2005) (“A false arrest claim under federal law requires a plaintiff to prove that the

arresting officer lacked probable cause to arrest the plaintiff.”); Peterson Novelties, Inc. v. City of

Berkley, 672 N.W.2d 351, 362 (Mich. Ct. App. 2003) (“To prevail on a claim of false arrest . . . a

plaintiff must show that the arrest was not legal, i.e., the arrest was not based on probable

cause.”). The evidence clearly establishes that by May 5, 2010, when the arrest warrant request

was sworn out, there was probable cause to arrest Gardner. Pursuant to a valid search warrant

executed on December 9, 2009, police officers had discovered crack cocaine and trafficking-

related paraphernalia in Gardner’s home. The district court properly granted summary judgment

to Evans on the false-arrest counts.

The probable cause for the arrest and Evans’s detachment from it also doom Gardner’s

malicious prosecution claim. A Fourth Amendment claim of malicious prosecution requires,

among other things, proof that “the defendant made, influenced, or participated in the decision to

prosecute the plaintiff[.]” Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015) (citing Sykes

v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010)). “To be liable for ‘participating’ in the

decision to prosecute the officer must participate in a way that aids in the decision, as opposed to

passively or neutrally participating.” Id. at 660 (quoting Sykes, 625 F.3d at 308 n.5). Such a

claim also requires that the plaintiff “show that there was a lack of probable cause for the

criminal prosecution.” Sykes, 625 F.3d at 308. There is no evidence that Evans participated in

the prosecution of Gardner after his possible involvement in creating the May 5, 2010 arrest

warrant. Further, that arrest warrant was based upon probable cause. The district court properly

granted summary judgment to Evans on the malicious prosecution count.

No. 17-1933 Gardner, et al. v. Evans, et al. Page 33

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED IN PART and

REVERSED IN PART. Specifically, we affirm judgment in favor of the defendants on all

counts concerning the invalidity of the search warrants (Counts 1, 21, and 27 of the first

amended complaint; Count 1 of the Holsey complaint), all counts concerning the execution of

the search warrants (Counts 2, 17, and 23; Count 2 of Holsey), all of the invasion-of-privacy

counts (Counts 4, 19, and 25; Count 4 of Holsey), and all counts concerning false arrest and

malicious prosecution (Counts 6–8). On the due-process claims, we reverse entirely the

judgment against Louden (Count 18), Roosevelt and Javon Hudson (Count 24), and Holsey

(Holsey Count 3), and we reverse the judgment against Gardner (Count 3) and James Hudson

(Count 24) as to the pre-deprivation claims of those counts, but affirm the judgment against them

as to the post-deprivation claims within those counts because they are homeowners. We reverse

the judgment in favor of defendants on all remaining counts that are part of this appeal (Counts 5

(of both complaints), 6 (of Holsey), 10, 20, 22, 26, 31, and 32). The case is remanded to the

district court for further proceedings consistent with this opinion.