Petition for Writ of Certiorari — Andrew McKinley, Petitioner v. Christopher Lee-Murray Bey

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Sixth Circuit

(January 6, 2020) . . . . . . . . . . . . . App. 1

Appendix B Order Denying Livonia Defendants’

Motion for Rehearing or

Reconsideration Per LR 7.1(h) [#55] in

the United States District Court

Eastern District of Michigan,

Southern Division

(March 5, 2018) . . . . . . . . . . . . . . App. 60

Appendix C Order Denying in Part and Granting

in Part Defendants’ Motion for

Summary Judgment [#38, 39] in the

United States District Court Eastern

District of Michigan, Southern

Division

(March 29, 2017) . . . . . . . . . . . . . App. 68

Appendix D Order Denying Petition for Rehearing

in the United States Court of Appeals

for the Sixth Circuit

(January 14, 2020) . . . . . . . . . . App. 109

App. 1

APPENDIX A

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 19a0308p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 18-1285/1376

[Filed January 6, 2020]

________________________________

CHRISTOPHER LEE-MURRAY BEY,

)

Plaintiff-Appellee,

)

)

v.

)

)

ADAM FALK and CHARTER

)

TOWNSHIP OF CANTON, MICHIGAN )

(18-1376); ANDREW MCKINLEY,

)

ERIC EISENBEIS, and MEGAN

)

MCATEER (18-1285),

)

Defendants-Appellants. )

________________________________ )

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:14-cv-13743—Denise Page Hood,

Chief District Judge.

Argued: January 31, 2019

Decided and Filed: December 31, 2019

App. 2

Before: CLAY, COOK, and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: Eric S. Goldstein, CITY OF LIVONIA,

Livonia, Michigan, for Appellants in 18-1285. Holly S.

Battersby, JOHNSON, ROSATI, SCHULTZ &

JOPPICH, P.C., Farmington Hills, Michigan, for

Appellants in 18-1376. Joel B. Sklar, JOEL B. SKLAR

LAW, Detroit, Michigan, for Appellee. ON BRIEF: Eric

S. Goldstein, CITY OF LIVONIA, Livonia, Michigan,

for Appellants in 18-1285. Holly S. Battersby,

JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C.,

Farmington Hills, Michigan, for Appellants in 18-1376.

Joel B. Sklar, JOEL B. SKLAR LAW, Detroit,

Michigan, for Appellee.

LARSEN, J., delivered the opinion of the court in

which COOK, J., joined. CLAY, J. (pp. 21–38),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

LARSEN, Circuit Judge. Christopher Lee-Murray

Bey filed a lawsuit under 42 U.S.C. § 1983, alleging

that: (1) several police officers stopped him without

reasonable suspicion of criminal activity, in violation of

the Fourth Amendment; and (2) they investigated and

ultimately stopped him because of his race, in violation

of the Fourteenth Amendment. The officers moved for

summary judgment based on qualified immunity; the

App. 3

court below denied the motion. We DISMISS in part,

AFFIRM in part, REVERSE in part, and REMAND.

I.

“[A] defendant challenging the denial of summary

judgment on qualified immunity grounds must be

willing to concede the most favorable view of the facts

to the plaintiff for purposes of the appeal.” Hooper v.

Plummer, 887 F.3d 744, 757 (6th Cir. 2018).

Accordingly, we present the facts in that light.

At approximately 2:30 a.m. on March 16, 2013, Bey

and two friends went out in Bey’s minivan to purchase

space heaters for their apartment. Bey had purchased

the older minivan just a few days before, so it had a

temporary registration tag but no license plate. The

three first went to a Meijer store in Livonia, Michigan,

a western suburb of Detroit, but came away emptyhanded. So they drove across the street and sat in the

parking lot of a closed Livonia Walmart while they

tried to locate a nearby store that would be open at that

time of night. They then drove to a Walmart in

neighboring Canton, where they found and purchased

the space heaters they wanted. Just as they were about

to drive home, they were surrounded and stopped by

Canton police officers.

Unbeknownst to Bey and his friends, while en route

to the Livonia Meijer the minivan they were driving

had caught the eye of an undercover Livonia police

officer, Sergeant Andrew McKinley. McKinley led an

undercover team of Livonia police officers called the

Special Operations Unit (SOU), which conducted

surveillance in the interest of crime prevention. Livonia

App. 4

had recently experienced an unusual number of

break-ins at cellphone stores, so the SOU officers on

duty that night—McKinley, Megan McAteer, and Eric

Eisenbeis, each driving a separate unmarked

vehicle—were paying particular attention to possible

retail crimes.

When Sergeant McKinley observed Bey’s “beat-up”

minivan at the early morning hour, he started to follow

it on “a hunch”; according to his training and

experience, criminals often use stolen, older vehicles for

retail crimes so that police cannot trace the vehicles

back to them. At some point before Bey and his friends

entered Meijer, the officers noted that the minivan’s

passengers were black. While Bey and his friends were

in Meijer, McKinley approached the minivan and

observed a paper temporary registration taped to the

window. McKinley later testified that one of the SOU

officers ran the registration through the Michigan state

database but found no matching records.1 Eisenbeis, on

the other hand, recalled that McKinley said over the

radio that the problem with the temporary license plate

was that “it was unreadable.” According to Bey, the

temporary license plate was valid and clearly visible.

The officers continued to follow Bey’s minivan from

a distance as it drove from the Livonia Meijer to the

Livonia Walmart parking lot, and then finally to the

Canton Walmart. At one point, the minivan got on a

1

There were no matching records in the state database because

Bey had bought the minivan just before this incident, and there is

generally a delay of several days before recently registered vehicles

appear in the database.

App. 5

northbound freeway, took the first exit, and then

immediately reentered the southbound freeway. To the

SOU officers this resembled a “cleaning move,” a tactic

used to draw out or shake off officers who might be

following.

When the minivan arrived at the Canton Walmart

and its occupants (Bey and his friends) entered the

store, Officer McAteer followed them in on foot, at

McKinley’s direction, to observe them. She passed

information to McKinley via cell phone as she followed

them through various areas inside Walmart, and

McKinley then passed some of the information along to

the rest of the SOU team via radio. McAteer told

McKinley that she watched the young men separate,

with one of the three going into the hunting section and

looking at guns. The three then proceeded to the

electronics section, where McAteer saw nothing

unusual. Though at one point she might have relayed

that she thought the three were contemplating a

“pushout,” she never saw the three leave or attempt to

leave Walmart without paying for the merchandise in

the shopping cart. To the contrary, she relayed to

McKinley that Bey and his friends stood in line at the

cash register, “flipped[] through some [credit] cards to

. . . pick a card,” and paid for the items in their

shopping cart using the card.

Meanwhile, the SOU officers outside had called the

Canton Police Department and requested that

uniformed Canton officers be nearby; the SOU officers

did not want to contact Bey and his friends, if possible,

because they were in plain clothes and protocol

generally dictates that uniformed officers approach

App. 6

suspects. The Canton Police Department dispatched

several uniformed officers to Walmart, including Adam

Falk. When Falk arrived at Walmart, he spoke briefly

with Eisenbeis, who told him that McAteer and the

suspects were in the store. Eisenbeis gave him a “prep

radio” so he could hear McKinley’s instructions, and

Eisenbeis told Falk to wait nearby so he could make

contact with Bey and his friends when they came out of

the store.

Falk waited outside Walmart for fewer than six

minutes before McKinley notified Falk that Bey and his

friends had exited the store and directed him to stop

them. Falk and the other Canton police officers

surrounded Bey’s van and ordered him out of the

vehicle. Since Bey was carrying a concealed weapon, he

properly notified Falk that he was armed and pointed

to his holster so Falk could remove the weapon; Bey

also produced a concealed weapon license. Falk asked

to see Bey’s receipts for the space heaters, which

showed no signs of fraud. However, Falk discovered

that Bey’s concealed weapon license had expired and so

arrested him.

Bey was charged in Michigan state court with the

felony offense of unlawfully carrying a concealed

weapon. He moved to suppress the evidence against

him, asserting that the stop was unreasonable under

the Fourth Amendment. For unknown reasons, the

county prosecutor presented only Falk’s testimony (and

not McKinley’s) at the suppression hearing, even

though Falk had stopped Bey at McKinley’s direction.

Falk truthfully testified that he personally had seen no

suspicious activity. The state court found the stop

App. 7

unconstitutional and suppressed the evidence; the case

was later dismissed with prejudice.

Bey then filed this civil rights action against

McKinley, Eisenbeis, McAteer, and Falk, alleging

violations of his Fourth Amendment and equal

protection rights. The officers moved for summary

judgment based on qualified immunity; the district

court denied that motion as well as the officers’

subsequent reconsideration motions. The officers

timely appealed.

II.

We review the district court’s summary judgment

decision de novo, applying the same standards the

district court used. Franklin Am. Mortg. Co. v. Univ.

Nat’l Bank of Lawrence, 910 F.3d 270, 275 (6th Cir.

2018). “[S]ummary judgment is warranted only if ‘there

is no genuine issue as to any material fact’ and ‘the

movant is entitled to judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56(a) and Villegas v. Metro.

Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)).

We also review de novo the grant or denial of qualified

immunity. Klein v. Long, 275 F.3d 544, 550 (6th Cir.

2001).

“Qualified immunity attaches when an official’s

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (citation omitted). When an

officer raises a qualified immunity defense, we

determine “(1) whether, considering the allegations in

a light most favorable to the party injured, a

App. 8

constitutional right has been violated, and (2) whether

that right was clearly established.” Harris v. Klare, 902

F.3d 630, 637 (6th Cir. 2018) (quotation marks

omitted). We may grant qualified immunity on either

basis and may address the prongs in any order.

Pearson v. Callahan, 555 U.S. 223, 241–42 (2009).

This case’s interlocutory posture limits our

appellate jurisdiction. The Supreme Court has

interpreted 28 U.S.C. § 1291’s grant of appellate

jurisdiction over “final decisions” to include some

summary judgment orders denying qualified immunity.

See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985);

Harrison v. Ash, 539 F.3d 510, 516–17 (6th Cir. 2008).

The general rule is that we do not have statutory

jurisdiction to entertain interlocutory challenges to a

district court’s factual findings and may only address

“neat abstract issues of law.” Johnson v. Jones, 515

U.S. 304, 317 (1995) (citation omitted). For this reason,

“a defendant challenging the denial of summary

judgment on qualified immunity grounds must be

willing to concede the most favorable view of the facts

to the plaintiff for purposes of the appeal.” Hooper, 887

F.3d at 757 (alteration omitted). Taking the facts in

that light, we assess whether Bey has carried his

burden of showing that the officers are not entitled to

qualified immunity as a matter of law. Hayden v.

Green, 640 F.3d 150, 152–53 (6th Cir. 2011).

III.

We first address the Fourth Amendment claims

arising out of the allegedly unlawful stop. For the

reasons that follow, we conclude that McAteer,

Eisenbeis, and Falk are entitled to qualified immunity

App. 9

against these claims. The claim against McKinley,

however, must go to a jury.

A.

McKinley argues that he is entitled to qualified

immunity because he had reasonable suspicion of

criminal activity to order the stop. We have said that

the Fourth Amendment divides police-citizen

interactions into three tiers, which must be justified by

correspondingly increasing levels of suspicion: “(1) the

consensual encounter, which may be initiated without

any objective level of suspicion; (2) the investigative

detention, which, if non-consensual, must be supported

by a reasonable, articulable suspicion of criminal

activity; and (3) the arrest, valid only if supported by

probable cause.” United States v. Smith, 594 F.3d 530,

535 (6th Cir. 2010) (quotation marks omitted).

Considering the facts in the light most favorable to

Bey, what happened was a non-consensual

investigative detention,2 and so there must have been

reasonable suspicion for the stop. See United States v.

Jones, 562 F.3d 768, 773 (6th Cir. 2009).

2

McKinley argues that he did not actually order an investigative

stop, but rather merely directed Falk to make contact with Bey—in

other words, to conduct a “consensual encounter, which may be

initiated without any objective level of suspicion.” Smith, 594 F.3d

at 535 (quotation marks omitted). Bey asserts that McKinley

forfeited this argument by not raising it in his principal summary

judgment motion. We need not decide the forfeiture issue because,

viewing the evidence in the light most favorable to Bey, the

argument would be meritless anyway. McKinley testified that

what happened was a stop; Falk testified he was directed to stop

Bey; and in the light most favorable to Bey, it was a stop.

App. 10

“[R]easonable suspicion exists when, based on the

totality of the circumstances, a police officer has a

particularized and objective basis for suspecting the

particular person stopped of criminal activity.” United

States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011). This

standard requires “more than a mere hunch,” but at

the same time “is satisfied by a likelihood of criminal

activity less than probable cause” and far less than “a

preponderance of the evidence.” Dorsey v. Barber, 517

F.3d 389, 395 (6th Cir. 2008) (quoting Smoak v. Hall,

460 F.3d 768, 778–79 (6th Cir. 2006)). “In considering

all the circumstances, the question is not whether there

is a possible innocent explanation for each of the

factors, but whether all of them taken together give

rise to reasonable suspicion that criminal activity may

be afoot.” United States v. Marxen, 410 F.3d 326, 329

(6th Cir. 2005).

Taking the version of the events most favorable to

Bey, McKinley violated Bey’s Fourth Amendment

rights by directing a stop without reasonable

suspicion.3 When McKinley directed Falk to initiate the

stop, he knew only that three young men had driven an

old minivan to three different stores in the early

morning, at one time reversing direction on the

highway. McAteer had followed them around the third

store and had not observed any criminal, or even

suspicious, behavior; in fact, she had watched them

stand in line at the cash register, “flip[] through some

3

We reach this conclusion independent of the state court’s

determination that the stop violated the Fourth Amendment.

Neither party argues on appeal that the state court’s

determination should have any effect on our analysis.

App. 11

[credit] cards to . . . pick a card,” and pay for the items

in their shopping cart with the card. And she had

relayed this information to McKinley. There was

simply nothing here to give a reasonable officer in

McKinley’s shoes the impression that criminal activity

“may be afoot” such that an investigative stop would be

constitutionally reasonable. United States v. Arvizu,

534 U.S. 266, 273 (2002).

True, we must “allow[] officers to draw on their own

experience and specialized training to make inferences

from and deductions about the cumulative information

available to them that ‘might well elude an untrained

person.’” Id. (quoting United States v. Cortez, 449 U.S.

411, 418 (1981)). And McKinley presents several

reasons why some of Bey’s actions could have been

consistent with more devious motives. For example,

McKinley testified that “[c]riminals frequently use

stolen old vehicles that cannot be traced to them if they

flee the scene,” and points to his testimony that the

paper registration on the van’s window did not appear

in a records search. He likewise contends that Bey’s

reversal on the interstate was “consistent with a

cleaning maneuver.” But even taken together, these

meager observations are not enough to constitute

reasonable suspicion. The deference we owe to police

officers on the ground can only stretch so far, and here

McKinley had seen nothing constituting an “objective

manifestation” that Bey “[wa]s, or [wa]s about to be,

engaged in criminal activity.” Cortez, 449 U.S. at 417.

Driving from store to store, even at 2:30 a.m. (when the

stores were, after all, open to customers), in a “beat-up”

minivan, would not generate reasonable suspicion to

stop a suspect when that series of events culminated in

App. 12

a normal credit card purchase.4 Every reasonable

officer would recognize that ordering a stop in this

situation, to investigate possible shoplifting after the

officer learned that the suspect had paid, would violate

clearly established Fourth Amendment rights. See

District of Columbia v. Wesby, 138 S. Ct. 577, 590

(2018). As such, McKinley is not entitled to qualified

immunity on this claim.

Lastly, McKinley argues that he could have lawfully

stopped Bey independent of the retail fraud

investigation. The temporary tag number did not

appear in the state database and so, McKinley says, he

had probable cause to stop Bey for driving an

unregistered vehicle. It is true that an officer’s

subjective motivations for initiating a stop are

“irrelevant to the existence of probable cause,” or, in

this case, reasonable suspicion. Devenpeck v. Alford,

543 U.S. 146, 153 (2004). So long as there were facts

known to McKinley that objectively constituted

probable cause of a civil infraction or reasonable

suspicion of a criminal offense, United States v. Lyons,

4

McKinley also argues that “the fact that the [credit card]

purchase went through does not rule out fraud,” because “the

cashier does not typically compare the account number on the

swiped card with the one that shows up on the receipt.” It may be

true in the abstract that a seemingly successful credit card

transaction does not exclude all possibility of fraud. But even

deferring to the officers’ experienced judgments as we must, see

Arvizu, 534 U.S. at 273, McKinley’s assertion crosses into baseless

speculation in these circumstances. Under the same logic, even a

cash payment would not have definitively ruled out theft because

the bills might have been counterfeit—so nothing Bey could have

done in the store could have prevented the officers from stopping

him.

App. 13

687 F.3d 754, 763 (6th Cir. 2012), the stop would not

violate the Fourth Amendment, see id. at 154–55;

Alman v. Reed, 703 F.3d 887, 900 n.3 (6th Cir. 2013)

(“Indeed, a wrongful-arrest claim can fail if probable

cause existed for a crime other than the crime for the

which the individual was arrested or charged.”).5 But

viewing the record in Bey’s favor, there is a genuine

5

The district court’s analysis faltered when it dismissed these

arguments, saying that “[a]lthough Defendants argue they could

have stopped the minivan at any time for this suspected civil

infraction, they never effectuated a stop on that basis.” Under

Devenpeck, the fact that the officers never actually conducted a

stop on that basis is irrelevant; the question is whether a

reasonable officer, with the knowledge these officers possessed,

would have had reason to believe that a stop would be justified.

543 U.S. at 153. The district court repeated the error upon

reconsideration:

The Livonia Defendants again are asking the Court to

ignore any intent of officers and, implicitly, suggesting

that officers should be able to create a laundry list of

possible violations after-the-fact to justify their stop. But,

to completely ignore the intent of officers and the reasons

they gave (or did not give) for following Plaintiff and his

companions (and the actions or inactions of the officers,

which may demonstrate or permit inference of intent)

would insulate officers from a finding of discriminatory

conduct in virtually every case, regardless of the evidence.

The Supreme Court has repeatedly required that courts assess

Fourth Amendment claims without regard to the officers’

subjective intent. See, e.g., Whren v. United States, 517 U.S. 806,

813 (1996) (“Subjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis.”); see also Devenpeck,

543 U.S. at 153. And it has instructed that “the constitutional

basis for objecting to intentionally discriminatory application of

laws is the Equal Protection Clause, not the Fourth Amendment.”

Whren, 517 U.S. at 813.

App. 14

issue of material fact on whether there was evidence

from which a reasonable officer could justifiably believe

Bey’s van was unregistered. On the one hand,

McKinley testified that one of the officers, though he

was not sure who, had asked the dispatcher to run the

temporary license plate and it came back “no record.”

On the other hand, McKinley affirmatively testified

that Bey “hadn’t done anything wrong” and that he had

“absolutely not” committed any crime in Livonia. And

Bey points out that, besides these conflicting

statements, there is nothing else in the record—like a

search printout or a recording of the call to dispatch,

for example—to directly indicate that any registration

search came up empty-handed. Eisenbeis recalled the

license plate situation a little differently as well; he

testified that McKinley told the SOU that the problem

with the temporary license plate was that “it was

unreadable.” Taking the evidence in the light most

favorable to Bey, a material question of fact remains,

and it would be inappropriate to resolve this issue on

summary judgment.

B.

On the other hand, McAteer and Eisenbeis are

entitled to summary judgment because Bey has not

shown that they personally participated in the actions

that violated his Fourth Amendment rights. Bey’s

Fourth Amendment arguments consistently lump the

SOU officers together. But “[t]o establish liability

against an individual defendant acting under color of

state law, a plaintiff must show that the defendant was

‘personally involved’ in [unlawful conduct].” Burley v.

App. 15

Gagacki, 729 F.3d 610, 619 (6th Cir. 2013) (quoting

Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)).

The district court denied qualified immunity to

McAteer because (1) she was present throughout the

events and (2) she conducted surveillance inside the

Canton Walmart and described the events to the other

SOU officers, including “suggesting that a ‘pushout’ or

other retail fraud and credit card fraud—was possible,

even likely.” This conduct, however, does not amount to

a Fourth Amendment violation. First, “mere presence

at the scene of a search, without a showing of direct

responsibility for the action, will not subject an officer

to liability.” Burley, 729 F.3d at 620. Second,

conducting nonintrusive surveillance in places open to

the public does not violate the Fourth Amendment. See,

e.g., United States v. Houston, 813 F.3d 282, 289 (6th

Cir. 2016) (“[P]olice may view what the public may

reasonably be expected to view.”); United States v.

Ellison, 462 F.3d 557 (6th Cir. 2006) (holding that a

motorist has no reasonable expectation of privacy in his

license plate number because “[w]hat a person

knowingly exposes to the public . . . is not a subject of

Fourth Amendment protection” (second alteration in

original) (quoting Katz v. United States, 389 U.S. 347,

351–52 (1967))); Kyllo v. United States, 533 U.S. 27,

31–32 (2001) (stating that “the lawfulness of

warrantless visual surveillance of a home has still been

preserved” despite other developments in Fourth

Amendment doctrine). It necessarily follows that

communicating those observations to other officers

likewise does not implicate any Fourth Amendment

interests. Cf. Ellison, 462 F.3d at 563 (“[S]o long as the

officer had a right to be in a position to observe the

App. 16

defendant’s license plate, any such observation and

corresponding use of the information on the plate does

not violate the Fourth Amendment.” (emphasis added)).

McAteer’s suggestion that she thought it possible that

Bey and his friends would attempt a “pushout” or other

“retail fraud” cannot violate the Fourth Amendment;

indeed, it is undisputed that she also reported that Bey

and his friends in fact paid for the merchandise before

they left the store. And there is no evidence that

McAteer personally participated in or directed the stop.

McAteer’s conduct did not violate Bey’s Fourth

Amendment rights.

The same goes for Eisenbeis. The district court

denied qualified immunity to Eisenbeis because (1) he

was present throughout the events and (2) he “drafted

a police report that indicates that the dispatched

offense, the subject and verified offense were

‘Suspicious Circumstances’ but does not contain any

criminal activity committed by Plaintiff or his friends—

except for the possession of the firearm by Plaintiff

discovered after the stop.” As explained above, mere

presence is not enough. Burley, 729 F.3d at 620. As for

the police report, it is a mere after-the-fact summary of

the events that occurred on the night of Bey’s arrest;

we fail to see its significance for determining whether

Eisenbeis’s involvement in the events leading to the

stop amounted to a Fourth Amendment violation. In

addition, Eisenbeis’s role in the events leading to Bey’s

stop was minimal. He surveilled Bey and his friends on

the public street; he did not personally participate in or

direct the stop. This conduct does not amount to a

Fourth Amendment violation. Houston, 813 F.3d at

App. 17

289; Burley, 729 F.3d at 619–20. As such, both McAteer

and Eisenbeis are entitled to qualified immunity.

C.

Finally, we conclude that Falk, the Canton

uniformed officer who executed McKinley’s direction to

stop Bey, is also entitled to qualified immunity. The

district court found that a genuine issue of material

fact remained as to whether Falk had reasonable

suspicion to stop Bey because there was evidence that

(1) Falk knew that Bey and his friends had completed

their purchase at the Canton Walmart; (2) Falk had

not been told that Bey and his friends had engaged in

any illegal activity since the SOU officers’ surveillance

began; and (3) Falk did not make the stop based solely

on McKinley’s request.

On appeal, Falk tries try to dispute these findings,

but our limited jurisdiction over appeals from denials

of qualified immunity precludes us from reviewing the

district court’s factual determinations. See DiLuzio v.

Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015).

Accepting them as true for the purposes of this appeal,

however, we may decide whether Falk’s conduct

violated Bey’s clearly established Fourth Amendment

rights. Id.

The collective-knowledge doctrine permits an officer

to “conduct a stop based on information obtained from

fellow officers.” Brown v. Lewis, 779 F.3d 401, 412 (6th

Cir. 2015). Because police officers “‘must often act

swiftly [and] cannot be expected to cross-examine their

fellow officers about the foundation of transmitted

information,’ we impute collective knowledge among

App. 18

multiple law enforcement agencies.” United States v.

Lyons, 687 F.3d 754, 766 (alteration in original)

(quoting United States v. Hensley, 469 U.S. 221, 230–31

(1985)). The doctrine applies “even when the evidence

demonstrates that the responding officer was wholly

unaware of the specific facts that established

reasonable suspicion for a stop.” Id.; see also United

States v. Kaplansky, 42 F.3d 320, 327 (6th Cir. 1994)

(en banc) (“It was permissible for [the officers] to rely

upon the dispatcher’s conclusion that Kaplansky was

‘suspicious’ without inquiring into the basis of the

dispatcher’s knowledge.”). It also applies when the

information the officers receives is quite skimpy. See

United States v. Butler, 223 F.3d 368, 371 (6th Cir.

2000) (concluding that a stop was lawful even though

the officers who stopped the car were only told “there

was a drug investigation going on and [the state

trooper] wanted that vehicle stopped” (alteration in

original)). So, at the time Falk stopped Bey, a

reasonable officer would have known that he could

lawfully effect a stop at another officer’s request

because the Fourth Amendment analysis would take

into account the requesting officer’s knowledge as well.

But what do we make of the fact that the collective

knowledge here did not amount to reasonable

suspicion? In such circumstances, the Supreme Court

has recognized the availability of a good faith defense

for an officer who relies on the erroneous collective

knowledge of others to make a stop. See Hensley, 469

U.S. at 232. We have said that “an officer is not

subjected to liability if he, through no improper action

or inaction on his part, conducts a stop that is

unconstitutional due to the error of a generally

App. 19

trustworthy source.” Brown, 779 F.3d at 413; see also

Hardesty v. Hamburg Township, 461 F.3d 646, 656 (6th

Cir. 2006) (“The Pinckney officers entered the house

with the Hamburg officers based upon the information

provided by the Hamburg officers . . . . Reliance upon

such information insulates the Pinckney officers from

civil liability in the event the information relied upon

was defective.”), abrogated on other grounds by Florida

v. Jardines, 569 U.S. 1 (2013). “[W]here one officer’s

claim to qualified immunity from the consequences of

a constitutional violation rests on his asserted good

faith reliance on the report of other officers,” we

determine qualified immunity based on “what

information was clear or should have been clear to the

individual officer at the time of the incident” and “what

information that officer was reasonably entitled to rely

on in deciding how to act, based on an objective reading

of the information.” Brown, 779 F.3d at 413 (quoting

Humphrey v. Mabry, 482 F.3d 840, 848 (6th Cir. 2007)).

Falk’s participation was quite brief. The dispatch

audio files indicate that Bey and McAteer were already

inside the Walmart store when the SOU officers

requested Canton’s assistance. The audio timestamps

indicate that Falk, who was on patrol at the time, was

first instructed to go to Walmart no more than fifteen

minutes before the stop occurred, and that he waited

outside the store for fewer than six minutes before

stopping the group at McKinley’s direction. This is

consistent with Falk’s undisputed testimony that he

waited outside the store for a short period, between five

and ten minutes, before stopping Bey.

App. 20

The very brief span of Falk’s pre-stop involvement

goes hand-in-hand with the limited substantive

involvement the record reveals, even taken in the light

most favorable to Bey. Falk’s intended and actual role

in this operation was merely to be an arm of the SOU

officers—to stop Bey when McKinley gave him the

green light. From Falk’s perspective, after arriving at

Walmart, the situation was fast-moving, and so Falk

relied on the representations of suspicious activity that

the Livonia officers had relayed to him.

The dispatcher told Falk that the SOU officers were

“watching some guys” who were “in the electronics

department” of the Canton Walmart, and that the SOU

officers had requested uniformed officers. When Falk

arrived, he was informed that the SOU officers “had

followed these subjects around from different stores”

and that there was an undercover officer following

them inside Walmart. The SOU officers never told Falk

that Bey and his friends had committed an illegal act

while the officers were surveilling them. But Falk also

knew that the SOU officers were “experienced officers

that do a lot of surveillance on high crime areas,” so he

inferred “that they probably had some more

information that [he] didn’t have.” It was reasonable

for him to assume “there [was] a reason why they were

following them around,” given Falk’s brief and limited

involvement in the operation. In fact, Falk specifically

testified that “[a]t that time [he] did not know” why the

SOU officers had begun following Bey and his friends,

and that he was “trusting” the information the SOU

officers had relayed to him. He heard over the prep

radio that the men walked around, made purchases

App. 21

with a credit card, and then exited the store. McKinley

directed Falk to stop Bey, and Falk did so.

Despite Falk’s limited involvement in the

investigation and his reliance on McKinley’s direction,

the district court denied Falk qualified immunity based

on its conclusion that there was evidence that Falk did

not act solely on the basis of McKinley’s request when

stopping Bey. Presumably, the source of the district

court’s determination is Falk’s deposition testimony

about the information McKinley had relayed to him,6

and the inferences Falk had drawn from that

information based on his law enforcement experience.

Yet, even though Falk heard from McKinley what Bey

and his friends were doing in the store, Falk noted that

his ability to ask questions over the radio about Bey’s

conduct was limited because asking questions would

have interfered with McKinley’s ability to receive

information from McAteer. And although Falk

admitted that he had discretion to ask McKinley

whether Bey’s actions were enough to justify a stop, he

testified, “I didn’t have time to make that decision

because, again, I was getting relayed information.”

Falk further testified that there was not enough time

to question McKinley’s direction to stop Bey because

Bey and his friends were about to get in the car and

leave.

Moreover, nothing in the collective-knowledgedoctrine cases says that an officer must act solely on

6

The district court stated that “Falk had heard McAteer’s radio

contact with the officers outside the Canton Walmart.” But it is

undisputed that Falk heard only from McKinley.

App. 22

other officers’ knowledge when effectuating the stop.7

Indeed, our articulation of the good faith test

presupposes that officers will sometimes possess some

independent information, yet still be able to rely on the

collective knowledge of others. See Brown, 779 F.3d at

413 (stating that we assess “what information was

clear or should have been clear to the individual officer

at the time of the incident” and “what information that

officer was reasonably entitled to rely on in deciding

how to act, based on an objective reading of the

information”). And nothing in Falk’s conduct suggests

any “improper action or inaction on his part.” Id. Falk

reasonably relied on the information the SOU officers

7

The dissent says that “[t]he collective knowledge doctrine is most

applicable in a quickly unfolding situation, in which the

responding officer possesses little or no knowledge of the facts

giving rise to reasonable suspicion and lacks the ability to

independently corroborate that information.” We agree and believe

that is exactly what we have here. To reiterate the facts, Falk was

dispatched to the Canton Walmart to stop the suspects that the

SOU officers had been following. When he arrived, he was given a

prep radio and instructed to stop them when they came out. He

waited for less than six minutes outside in the parking lot before

getting the go-ahead for the stop from McKinley. He was clearly

not “part” of the investigation; he arrived at the end of it and heard

only snippets of updates from McAteer, filtered through McKinley,

so that he would know when (not whether) to stop the young men.

We do not doubt that, in some circumstances, an officer’s

entitlement to rely on information furnished by others must

dissipate because it becomes unreasonable to do so without

independent verification. But that did not occur in the

fewer-than-six minutes Falk was in the Canton Walmart’s parking

lot; and at the very least nothing in our caselaw should have

alerted Officer Falk that he was not entitled to rely on others in

these circumstances. That is enough for qualified immunity.

App. 23

gave him when he arrived at the store and on the

information relayed by McKinley over the radio.

Given Falk’s limited involvement, there was

nothing that would have alerted him to a likelihood, or

even a strong suspicion, that McKinley’s direction was

unlawful. While Falk did hear that Bey had purchased

the items at the Canton Walmart, that did not, in these

circumstances, require him to question McKinley’s

direction to stop Bey. Falk did not know the scope of

the whole investigation, and he had to act swiftly; in

such a situation, Falk was entitled to act on McKinley’s

direction without first cross-examining him. Lyons, 687

F.3d at 766. Falk’s reliance, therefore, was done in good

faith, and he is entitled to qualified immunity. See

Humphrey, 482 F.3d at 851.

IV.

We now turn to the equal protection claims. Bey

alleges that the officers surveilled and ultimately

stopped him based on his race. To prevail, Bey must

show “that the challenged police action ‘had a

discriminatory effect and that it was motivated by a

discriminatory purpose.’” Bennett v. City of Eastpointe,

410 F.3d 810, 818 (6th Cir. 2005) (quoting Wayte v.

United States, 470 U.S. 598, 608 (1985)). He must show

that the specific officers here, the “decisionmakers in

his case[,] acted with discriminatory purpose.”

McCleskey v. Kemp, 481 U.S. 279, 292–93, 297 (1987);

see Farm Labor Org. Comm. v. Ohio State Highway

Patrol, 308 F.3d 523, 533–34 (6th Cir. 2002). Bey has

presented no direct evidence of discriminatory intent;

he must, therefore, rely on indirect evidence, which can

include “valid relevant statistical evidence of disparate

App. 24

impact or other circumstantial evidence.” United States

v. Avery, 137 F.3d 343, 355 (6th Cir. 1997).

Our limited jurisdiction over the officers’ appeal

from the denial of qualified immunity severely restricts

our review of Bey’s equal protection claim. Fact

questions, including questions of evidentiary

sufficiency, are out of our hands. See DiLuzio, 796 F.3d

at 609. This includes “which facts a party may, or may

not, be able to prove.” Id. (quoting Johnson v. Jones,

515 U.S. 304, 313 (1995)). With this understanding in

mind, we proceed to each officer’s individual liability.

A. SOU Officers

McKinley. As stated above, Bey must show

discriminatory effect and discriminatory intent.

Bennett, 410 F.3d at 818. To establish discriminatory

effect, Bey offered general arrest data for the two

municipalities as a whole.8 Although the officers

challenged these data as insufficient, the district court

disagreed and determined that the statistics created a

genuine issue of material fact as to discriminatory

effect. What we may think of the sufficiency of the

statistics to show discriminatory effect is no matter for

this appeal. Our limited jurisdiction over this

interlocutory appeal precludes us from reexamining

8

Bey’s data purport to show that while Livonia’s population is only

3.4% black, 53% of those arrested by Livonia police are black. He

presents similar figures for Canton, which according to Bey has a

population that is 4.54% black, while 34% of total suspects

arrested in Canton are black. He also presents statistics indicating

that Livonia and Canton’s police officers themselves are

overwhelmingly white.

App. 25

questions of evidentiary sufficiency. See Farm Labor,

308 F.3d at 536 (“Because this is an interlocutory

appeal, we do not consider whether the plaintiffs’

evidence is sufficient to present a genuine issue for

trial . . . that Trooper Keifer actually did target the

plaintiffs in part because of their Hispanic appearance

or that the [police force] does not investigate

non-Hispanic motorists who are similarly situated to

the plaintiffs.”).

The same goes for McKinley’s intent. The district

court addressed the question of McKinley’s intent

having already determined that McKinley lacked

reasonable suspicion to order the stop. We do not doubt

that an officer’s lack of reasonable suspicion (or

probable cause) may be relevant to the question

whether the officer acted with a racially discriminatory

intent. Cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1724

(2019) (noting, in the retaliatory arrest context, that

the absence of probable cause may be “weighty

evidence that the officer’s animus caused the arrest”).

But a lack of reasonable suspicion alone is insufficient

to show such intent. See, e.g., Ellison, 462 F.3d at 563

n.4 (holding that there was a “complete lack of evidence

to support a racial profiling argument” even though the

district court had expressly found that the officer’s

stated justification for the stop was not credible);

Gilani v. Matthews, 843 F.3d 342, 349 (8th Cir. 2016)

(finding insufficient evidence of discriminatory intent

where the plaintiff showed “that his citation and arrest

were the result of an arbitrary and unreasonable

exercise of enforcement discretion,” but could “identify

no statement . . . expressing a discriminatory intent or

any animus based upon his ethnicity”); Johnson v.

App. 26

Crooks, 326 F.3d 995, 1000 (8th Cir. 2003) (“‘We do not

think . . . that the combination of an arbitrary stop . . .

with a difference in race between the person stopped

and the officer establishes a prima facie case of racial

discrimination.’” (quoting Ford v. Wilson, 90 F.3d 245,

248–49 (7th Cir. 1996))); Bingham v. City of Manhattan

Beach, 341 F.3d 939, 948 (9th Cir. 2003) (“Essentially,

Bingham argues that because he is African-American,

the officer is white, and they disagree about the

reasonableness of the traffic stop, these circumstances

are sufficient to raise an inference of racial

discrimination. We disagree that this is sufficient to

state an equal protection claim.”); cf. Gardenhire v.

Schubert, 205 F.3d 303, 320 (6th Cir. 2000) (“The

[plaintiffs’] basic argument is that the police had no

logical reason to prosecute them rather than Ms. Della

Sala, so the arrest must have been motivated by their

interracial marriage. While such reasoning would be

sufficient in establishing a prima facie Title VII case,

the standard for a selective enforcement claim is much

more demanding.”).

Here, in addition to finding a lack of reasonable

suspicion, the district court determined that

“McKinley’s explanation for why he started following

the minivan in the first place,” his failure to “stop the

minivan once they learned of the ‘no record’ plates,”

and McKinley’s suggestion that he “did not know the

race of Plaintiff and his friends prior to the Canton

Walmart” created a genuine issue of material fact with

respect to McKinley’s intent. These factual disputes,

and the inferences that may be drawn therefrom, are

beyond our jurisdiction on appeal. DiLuzio, 796 F.3d at

609. Indeed, we have held that the “limitation on our

App. 27

appellate jurisdiction applies with particular force to

evidence sufficiency questions related to a [person’s]

intent, such as whether a [person] acted with a

discriminatory purpose.” Farm Labor, 308 F.3d at 537;

see also Diluzio, 796 F.3d at 609 (stating that we lack

jurisdiction to consider “fact-based (‘evidence

sufficiency’) appeals [that] challenge directly the

plaintiff’s allegations (and the district court’s

acceptance) of what actually occurred or why an action

was taken or omitted, who did it, or nothing more than

whether the evidence could support a jury’s finding

that particular conduct occurred” (alterations and

quotation marks omitted) (emphasis added)). As a

result, we lack jurisdiction to consider McKinley’s

challenge to Bey’s equal protection claim.

McAteer and Eisenbeis. The district court grouped

McAteer and Eisenbeis with McKinley when discussing

Bey’s equal protection claim. That was legal error.

“Where . . . the district court is faced with multiple

defendants asserting qualified immunity defenses, the

court should consider whether each individual

defendant had a sufficiently culpable state of mind.”

Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011)

(alteration in original) (quoting Phillips v. Roane

County, 534 F.3d 531, 542 (6th Cir. 2008)). In such

circumstances, “we must make an individualized

assessment of each [officer], based on [Bey’s] version of

the facts.” Id. When each officer’s conduct is considered

individually, we conclude that McAteer and Eisenbeis

are entitled to qualified immunity on Bey’s equal

protection claim.

App. 28

Unlike McKinley, McAteer’s involvement was

limited and based almost entirely on the direction of

others. She started following the van because of

McKinley; she testified: “So when Sergeant McKinley

says he is following a vehicle, at that point, I’m going to

head that way in that direction of where he’s at so I can

assist him.” McKinley “directed [her] to go inside the

[Canton] Wal-Mart.” Once inside, she relayed her

observations of Bey’s conduct to McKinley at his

request. She testified, “I imagine [McKinley] was

asking me for information because I was so new at

surveillance at that point in time.” McAteer did not

direct the stop.

Bey does not explain how this conduct evinces

discriminatory intent. Nor for that matter does Bey

even discuss McAteer’s individual liability under the

Equal Protection Clause. (The district court’s analysis

suffered from the same fault.) Bey says only that

“Defendants had no lawful reason to profile, scrutinize,

target, or seize Mr. Bey.” But as noted previously, that

a stop violated the Fourth Amendment may be one

factor in determining whether race motivated the stop;

but it is not alone sufficient. And, in any event,

McAteer’s conduct did not violate Bey’s Fourth

Amendment rights. Because Bey has not shown that a

genuine issue of material fact remains as to whether

McAteer acted with discriminatory intent, McAteer is

entitled to qualified immunity.

For the same reasons, Eisenbeis is entitled to

qualified immunity on Bey’s equal protection claim.

Like McAteer, Eisenbeis’s conduct did not violate Bey’s

Fourth Amendment rights. And Eisenbeis’s

App. 29

involvement was even more minimal than McAteer’s,

limited to nothing more than surveillance on the public

streets at the direction of McKinley. Bey has not put

forth any evidence from which a reasonable jury could

infer that Eisenbeis harbored discriminatory intent.

B. Falk

In contrast to its treatment of McAteer and

Eisenbeis, the district court gave specific reasons for

denying qualified immunity to Falk on the equal

protection claim. Among them, the district court noted

the lack of reasonable suspicion to stop Bey and his

friends. But, as discussed above, Falk relied on

McKinley’s direction to stop Bey and his friends and

acted in good faith. McKinley’s lack of reasonable

suspicion cannot, therefore, be evidence to show Falk’s

racially discriminatory intent.

The district court also found that Falk’s deposition

testimony raised an inference of discriminatory intent.

Falk was asked, “If race played a part in your decision

to make an arrest of somebody, would you admit that

under oath?” Falk responded, “No.” Although our

jurisdiction is limited, in some rare circumstances, we

are able to fix obvious factual errors by the district

court. See Austin v. Redford Twp. Police Dep’t, 690 F.3d

490, 496 (6th Cir. 2012) (“In exceptional circumstances,

an appellate court may overrule a district court’s

determination that a factual dispute exists where

evidence in the record establishes that the

determination is blatantly and demonstrably false.”).

We think this is that situation.

App. 30

Before answering “No”, Falk said the question “was

not a fair question.” He later indicated that it was not

fair because “it presupposed [he] would arrest someone

based on race.” Thus, Falk answered “No” because he

understood the question to ask him to admit that he

had stopped or would stop someone based on race. This

has no bearing on whether Falk would actually make

a stop based on race or whether Falk did so in this

case. The district court’s conclusion that this dubious

line of questioning supports an inference of

discriminatory intent is blatantly contrary to the record

when Falk’s testimony is considered as a whole. Id.

The district court also noted that Falk might have

been told Bey’s race while Falk was driving to the

Canton Walmart. But that cannot be enough to

establish discriminatory intent. See United States v.

Waldon, 206 F.3d 597, 604 (6th Cir. 2000) (“[C]ommon

sense dictates that, when determining whom to

approach as a suspect of criminal wrongdoing, a police

officer may legitimately consider race as a factor if

descriptions of the perpetrator known to the officer

include race.”). As a result, we conclude that Falk is

entitled to qualified immunity on Bey’s equal

protection claim.

***

For the above reasons, we DISMISS for lack of

jurisdiction McKinley’s appeal of the denial of qualified

immunity as to Bey’s Fourteenth Amendment equal

protection claim, AFFIRM the denial of qualified

immunity to McKinley as to Bey’s Fourth Amendment

claim, and REVERSE the denial of qualified immunity

to McAteer, Eisenbeis, and Falk as to Bey’s Fourth

App. 31

Amendment and Fourteenth Amendment claims. We

REMAND for entry of summary judgment in favor of

McAteer, Eisenbeis, and Falk in full, and to allow the

claims against McKinley to proceed to trial.

App. 32

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. On a cold winter

evening, Christopher Bey and two friends drove to the

24-hour Meijer in Livonia, Michigan, to purchase

portable space heaters. But the Livonia Meijer did not

have space heaters in stock, so the men proceeded to

the Canton Walmart to make their purchase. Bey and

his friends are black males. This fact alone elicited the

suspicion of three undercover Livonia police officers, all

of whom are white. The three officers, driving in three

separate unmarked cruisers, followed Bey and his

friends for an extended period of time, pursuing them

across three local jurisdictions while waiting, and

perhaps hoping, for the men to commit a crime. And

when the men exited the Canton Walmart with the

space heaters they had purchased, a Canton

officer—whom the Livonia officers had summoned—

stopped Bey and his friends, ordered them out of their

car, and accused them of stealing the space heaters.

But the police officers’ hopes of discovering criminality

had failed to materialize. The only crime Bey and his

friends had committed was shopping while black.

This case is about race. It is about police officers

allegedly targeting, surveilling, and detaining Bey and

his friends because of the color of their skin. The

majority chooses to minimize this uncomfortable truth.

But the majority’s failure to sufficiently acknowledge

this reality neither changes, nor obfuscates, what is

apparent to anyone who objectively examines the

record below: the events that unfolded in the early

App. 33

morning hours of March 16, 2013 would never have

transpired had Christopher Bey and his friends been

white—or at least a jury could so find.

The majority holds that qualified immunity protects

several of the officers who followed and stopped Bey,

even though a jury could easily find that the officers

violated clearly established law prohibiting

discrimination based on race. In reaching this

conclusion, the majority distorts the lens through

which this Court must view the evidence at summary

judgment, misreads and misapplies the case law, and

silently adopts a novel interpretation of the Fourteenth

Amendment, namely that the Equal Protection Clause

does not protect against racial discrimination except in

the rare circumstances where direct evidence of racial

animus exists. But because direct evidence of racial

discrimination is rarely apparent—those who violate

equal protection rights know better than to admit to

their nefarious motives—the majority’s approach

effectively eviscerates the Fourteenth Amendment’s

prohibition on racial discrimination.

My colleagues’ analysis is not only legally and

factually incorrect. It is also dangerous. By excusing

Defendants’ alleged racial discrimination, the majority

allows unconstitutional race-based policing to continue

unabated. And by removing the prospect of liability as

a deterrent for police officers in all but the rarest of

circumstances, the majority invites an increase in

discriminatory conduct.

I decline to adopt the majority’s skewed view of the

facts. I cannot concur in the majority’s untenable legal

App. 34

reasoning. And I refuse to condone unconstitutional

race-based policing. I therefore dissent.

I. STATEMENT OF FACTS

Because the majority opinion mischaracterizes or

overlooks many crucial facts, I feel compelled to offer a

countervailing factual statement. Unlike the majority’s

factual statement, the factual recitation below provides

a full account of the events that allegedly transpired.

And unlike the majority’s account of the facts, which

improperly views the facts and draws inferences in the

light most favorable to the defendant police officers, the

factual statement below properly construes the facts

and inferences in the light most favorable to Bey, as

this Court is obligated to do when reviewing an

interlocutory appeal of the denial of qualified

immunity.

Sometime after midnight on March 16, 2013, Bey

and two friends drove to Meijer in the City of Livonia,

Michigan, to purchase space heaters. The weather was

cold and clear. The men drove in Bey’s 2000 Plymouth

Grand Voyager. Bey had purchased the van a few days

earlier. Bey and his friends are black males. When

these events occurred, the men were 19, 23, and 26

years old, respectively.

McKinley was the officer in charge of the City of

Livonia’s Special Operations Unit (“SOU”), an

undercover squad of plainclothes officers that

specialized in surveillance of criminal activity. The

SOU consisted of McKinley, Eisenbeis, and McAteer

(the “SOU officers”), all of whom are white.

App. 35

When Bey and his friends entered Livonia,

McKinley “turned around” and “began to follow” Bey’s

vehicle. (McKinley Dep., R 38-6 at PageID #437, pp.

16–17.) McKinley did not observe the van speeding or

driving in a suspicious manner. McKinley claims he

decided to follow the van on a “hunch” because it was

“kind of beat up.” (Id. at PageID #446–47, pp. 51, 54.)

McKinley followed Bey’s van into the parking lot of

the Livonia Meijer. McKinley notified Eisenbeis and

McAteer that he was surveilling the van containing

three black males,1 and Eisenbeis and McAteer—each

driving their own unmarked vehicle—proceeded to the

Meijer to assist in the surveillance.

At some point after McKinley began following the

van, he noticed that it had a temporary license plate

prominently displayed in the back window. McKinley

instructed one of the other SOU officers to run the

1

The parties dispute exactly when McKinley learned that Bey and

his friends were black. McKinley testified that he did not observe

the men’s race until after the license plate search came back “no

record.” (McKinley Dep., R. 38-6 at PageID #447, pp. 54–55.)

McKinley allegedly received the “no record” result after Bey and

his friends parked the van and entered the Livonia Meijer. But

there is no evidence in the record to corroborate McKinley’s claim

that the registration search results came back “no record,” which

casts doubt on McKinley’s representation about when he learned

that Bey and his friends were black. Further, Eisenbeis’ police

report indicates that McKinley learned of the men’s race before

arriving at the Meijer, directly contradicting McKinley’s account.

For purposes of this appeal, the Court must view this disputed

evidence in the light most favorable to Bey and assume that

McKinley learned that Bey and his companions were black prior

to arriving at the Meijer. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

App. 36

license plate through the Law Enforcement

Information Network database. McKinley knew that it

could “take a few days” for the database to update after

a vehicle is bought or sold. (Id. at PageID #447, p. 54)

Unsurprisingly, the result allegedly came back “no

record.”2 (Id.) But the SOU officers did not stop Bey for

the possible license plate violation because, according

to McKinley, Bey and his friends “hadn’t done anything

wrong.” (Id. at PageID #438, p. 18.) Despite not

observing Bey and his friends engaging in any criminal

activity, the SOU officers continued “just watching” the

men “to see if, you know, something else should maybe

happen or occur.” (Id.)

Even though there was no indication that the men

had engaged in any suspicious activity while inside the

Livonia Meijer, the SOU officers continued to surveil

the men after they left the store. They monitored Bey

and his friends as they drove to the parking lot of the

abandoned Livonia Walmart, where they parked the

van and used their cell phones to locate a 24-hour store

where they could purchase space heaters. The officers

2

As stated in footnote 1, supra, there is a factual dispute about

whether the SOU officers ever actually ran the license plate

through the database and received a “no record” result. As the

majority observes, Defendants have not presented any

evidence—such as an audio recording of the call to the dispatcher

or a computer printout of the search results—to support

McKinley’s testimony that the SOU officers ran the license place

through the database and received a “no record” reading. Further,

as the majority states, Eisenbeis testified that the problem with

the license plate was that it was “unreadable,” which differs from

McKinley’s testimony regarding the alleged “no record” result. (See

Eisenbeis Dep., R. 46-5 at PageID #940, p. 9.)

App. 37

did not notice any suspicious activity while the van was

parked.

Despite the lack of suspicious activity, the SOU

officers continued to monitor the men after they left the

parking lot. In fact, the SOU officers pursued the men

through three jurisdictions. They followed Bey and his

friends as they drove westbound on I-96, turned onto

Northbound I-275, exited at Six Mile Road—the first

exit—and got back on I-275 traveling Southbound

through Plymouth Charter Township, exited at Ford

Road in Canton, and eventually arrived at the Canton

Walmart. According to the majority opinion, the SOU

officers perceived Bey’s exiting and re-entering the

highway as a “cleaning move” designed to detect or

evade his pursuers. (Maj. Op. at 3.) However, it seems

more likely that Bey had simply made a wrong turn

and corrected his error at the first opportunity by

turning around at Six Mile Road.3

Bey and his friends entered the Canton Walmart.

McKinley directed McAteer to follow the men inside to

surveil them. Once inside, McAteer kept close watch on

the men and relayed her observations to McKinley via

cell phone.

When Bey and his friends arrived at the Canton

Walmart, the SOU officers had not observed any

objectively suspicious behavior. But McKinley called a

friend who worked for the Canton Police Department

to provide “an overview of what we had in Livonia and

3

In fact, Eisenbeis testified that Bey and his friends did not do

“anything strange or peculiar” as they drove from Livonia to

Canton. (Eisenbeis Dep., R. 46-5 at PageID #944, pp. 22–23.)

App. 38

how it came to Canton, you know, so they would have

a history of what just occurred.” (McKinley Dep., R.

38-6 at PageID #441, p. 33.) McKinley also directed

Eisenbeis to request that a uniformed Canton officer

“make contact with these guys.” (Id. at PageID #443, p.

38.) On McKinley’s instructions, Eisenbeis called

Canton dispatch. Eisenbeis explained that “we had

followed this vehicle from our city, that it appeared

suspicious based on our observations and [we] asked if

[Canton officers] could effect a stop on the vehicle.”

(Eisenbeis Dep., R. 46-5 at PageID #945, p. 29.)

McKinley later explained that he decided to “make

contact” with Bey and his friends because of

“everything [that had occurred] from Livonia based up

until Canton.” (McKinley Dep., R. 38-6 at PageID #443,

p. 38.) McKinley wanted to “get identification. That

was our first intent, to get these people identified. You

know, maybe they’re part of a crew. This could be

intelligence that we could use later through

identification. Maybe they were involved in something

in another city and, you know, information sharing.”

(Id. at PageID #444, p. 43.) McKinley also wanted Bey

and his friends to explain “what they’ve done.” (Id. at

PageID #444, p. 44.) Specifically, McKinley wanted the

men to disclose “where [they are] coming from, where

they’re going, are they shopping, what are they doing

to maybe kind of paint us a picture if this is something

we should be concerned with or if it’s nothing.” (Id.)

McKinley suspected that Bey and his friends might

have been involved in “something else, some other

criminal activity” and might have been part of “a retail

fraud crew” or a “credit card fraud crew.” (Id. at

PageID #444–45, pp. 45–46.) He thought that making

App. 39

contact with the men could enable “information sharing

through different departments and that might shore up

. . . a case in Canton, in Redford, [or in] Farmington

Hills.” (Id. at PageID #445, p. 45.)

Falk, a uniformed Canton officer, received

instructions from his dispatcher to proceed to the

Canton Walmart. The dispatcher relayed that the men

were “shopping around,” which Falk understood to

mean committing “retail fraud . . . because they know

loss prevention or whatever you want to call it as

protection is not in the store [at that early morning

hour].” (Falk Dep., R. 38-11 at PageID #497, p. 20.)

When Falk arrived, he briefly met with McKinley, who

gave him a “prep radio” and advised Falk that an

undercover SOU officer was surveilling the men inside

the store. (Id. at PageID #495, p. 12; McKinley Dep., R.

38-6 at PageID #441, pp. 31–32.) McKinley gave Falk

the radio so that Falk could “hear what’s going on

through me.” (McKinley Dep., R. 38-6 at PageID #441,

p. 32.) As McKinley explained, “I’m on the phone with

[McAteer]. She’s talking to me through the cell phone

and I’m just updating the guys [Falk and Eisenbeis] on

our police radio.” (Id. at PageID #441, pp. 30–31.) In

other words, Falk and Eisenbeis did not receive

information directly from McAteer—who was

surveilling the men from inside—but instead received

“updates” that McKinley communicated over the radio

based on what McKinley purportedly heard from

McAteer.

While surveilling Bey and his companions, McAteer

saw the men visit the electronics section, where

“nothing in particular st[ood] out” to her. (McAteer

App. 40

Dep., R. 47-8 at PageID #1311, p. 22.) She also

witnessed one of the men “in the hunting section

inquiring about guns.” (Id. at PageID #1310, p. 20.)

McAteer observed items in their shopping cart; she

anticipated that the friends might attempt a “push

out,” i.e., “fill[] up a cart full of merchandise and walk[]

out of the store without paying for it.” (Id. at PageID

#1313, p. 31.) But despite McAteer’s expectations, Bey

and his friends did not try a push out; they walked up

to the cash register to pay for their items, just like any

other law-abiding customers. McAteer claims that she

observed Bey “shuffling” through “a stack of several

[credit] cards” prior to selecting a card and giving it to

the cashier, which she believed could have indicated

that Bey was committing credit card fraud. (Id. at

PageID #1314, pp. 34–35.) But the men paid for the

items and left the store without incident. McAteer did

not observe any suspicious activity as the men exited

the Walmart.

The officers stationed outside gave conflicting

accounts of the nature and extent of the information

that McKinley relayed to them over the radio.

According to Falk, McKinley conveyed that Bey and his

friends “ha[d] a cart full of merchandise and that they

think they’re going to do a push out,” i.e., commit “a

retail fraud.” (Falk Dep., R. 38-11 at PageID #499, pp.

26–27.) Falk further asserts that McKinley later

relayed that Bey and his friends were in line at the

cash register, “going through a bunch of credit cards”

and that “it looks like maybe they’re going to do some

kind of a credit card fraud.” (Id.) But according to

Eisenbeis, McKinley relayed only that Bey and his

friends “went to a register and purchased some items

App. 41

with a credit card” and “were exiting the store” without

incident. (Eisenbeis Dep., R. 46-5 at PageID #944, pp.

24–25.) And according to Eisenbeis, McKinley never

stated that he believed that Bey and his friends were

attempting a “push out” and never stated they had been

“cycling through credit cards” at the register.4 (Id. at

PageID #950, p. 49.)

Bey and his friends left the store with the space

heaters they had purchased and got into the parked

van. McKinley requested that Falk effectuate a stop.

Falk pulled his marked cruiser up to the rear end of

Bey’s van. Falk did not stop Bey because of the possible

license plate violation. According to Falk, this was not

a traffic stop and Bey and his companions were not free

to leave. Two other marked Canton cruisers also

converged on the scene. Falk ordered Bey to open the

door and exit the van. Bey complied.

Falk informed Bey that he was investigating retail

or credit card fraud that Bey and his friends might

have committed inside the store. Bey gave Falk the

receipt for the space heaters and the credit card he

used for the purchase. Falk matched the receipt to the

credit card, determined that Bey’s purchases were

“lawful,” and confirmed that Bey had not committed

retail fraud, credit card fraud, or any other crime inside

4

The majority fails to acknowledge these factual discrepancies.

But the officers’ differing accounts matter. As discussed below with

reference to the collective knowledge doctrine, these discrepancies

cast doubt on Falk’s argument—and the majority’s conclusion—

that Falk lacked enough information to determine that there was

no objective basis for stopping Bey.

App. 42

the Canton Walmart. (Falk Dep. R. 38-11 at PageID

#504, p. 46.)

As Bey was following Falk’s order to exit the

vehicle, Bey informed Falk that he had a gun. Falk

confiscated the weapon for “everybody[‘s]” safety. (Id.

at PageID #503, p. 45.) Bey gave Falk his Concealed

Weapons Permit License. Because the license had

expired, Falk arrested Bey for a felony offense of

carrying a firearm without a valid license.

In the resulting state criminal case, Bey filed a

motion to suppress. Falk, the only officer to testify at

the suppression hearing, admitted that he did not

personally observe any conduct that gave rise to

reasonable suspicion. Falk stated that he only stopped

Bey because the SOU officers asked him to. After

hearing Falk’s testimony, the trial judge remarked that

“I’m thinking we’re in Russia or something” and

explained that this case was a “no-brainer” because

“there was absolutely no reason in the world to stop

these people.” (Suppression Hr’g Tr., R. 46-8 at PageID

#1003–02, pp. 17–18.) The trial judge granted the

motion to suppress and dismissed the charge against

Bey.

II. DISCUSSION

The majority concludes that all of the Defendants

except for McKinley are entitled to qualified immunity,

and even then, only begrudgingly finds that McKinley

has to face trial thanks to a jurisdictional technicality.

On some level, this might seem like the sort of

balanced decision-making we expect from the federal

judiciary. After all, McKinley will face trial, and so Bey

App. 43

will still have his day in court. And in a close case,

some officers receiving qualified immunity and others

going to trial might be a plausible outcome.

But this is not a close case. The officers in question

followed Bey and his friends from store to store,

observed ever-increasing signs of their innocence, and

nevertheless stopped them and forced Bey to justify his

lawful actions. The only explanation for the officers’

behavior was the color of Bey’s skin. To avoid this

uncomfortable reality, the majority views the facts

through a distorted lens that improperly favors

Defendants, and the legal conclusions that result from

this choice are predictably nonsensical. Because Bey

has presented sufficient evidence for a jury to conclude

that each of the officers violated his clearly established

equal protection and Fourth Amendment rights,

qualified immunity does not shield Defendants from

Bey’s constitutional claims.

A. Equal Protection

The Equal Protection Clause of the Fourteenth

Amendment provides that a state may not “deny to any

person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, § 1. “The [Equal

Protection] Clause embodies the principle that all

persons similarly situated should be treated alike.”

Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250,

260 (6th Cir. 2006) (citing City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985)). It is

paradigmatic that “[t]he central purpose of the Equal

Protection Clause of the Fourteenth Amendment is the

prevention of official conduct discriminating on the

App. 44

basis of race.” Washington v. Davis, 426 U.S. 229, 239

(1976).

To prove an equal protection violation, a plaintiff

must demonstrate “that a state actor intentionally

discriminated against the plaintiff because of

membership in a protected class.” Henry v. Metro.

Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) (quoting

Johnson v. Morel, 876 F.2d 477, 479 (5th Cir. 1989) (en

banc), abrogated on other grounds by Hudson v.

McMillian, 503 U.S. 1 (1992)). A plaintiff “must prove

that the decisionmakers in his case acted with

discriminatory purpose.” McCleskey v. Kemp, 481 U.S.

279, 292 (1987). “[D]iscrimination can be proved

through direct evidence, which seldom exists, or

inferences can be drawn from valid relevant statistical

evidence of disparate impact or other circumstantial

evidence.” United States v. Avery, 137 F.3d 343, 355

(6th Cir. 1997) (citing United States v. Travis, 62 F.3d

170, 174 (6th Cir. 1995)); see also Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266

(1977) (“Determining whether invidious discriminatory

purpose was a motivating factor demands a sensitive

inquiry into such circumstantial and direct evidence of

intent as may be available.”); Heyne v. Metro. Nashville

Pub. Sch., 655 F.3d 556, 571 (6th Cir. 2011) (“Direct or

circumstantial evidence . . . may establish an Equal

Protection Clause violation.”); United States v.

Saucedo, 226 F.3d 782, 790 (6th Cir. 2000) (noting that

a plaintiff could prove “by requisite direct,

circumstantial, or statistical evidence, that he was a

target of racial profiling”). “[A]n invidious

discriminatory purpose may often be inferred from the

App. 45

totality of the relevant facts . . . .” Davis, 426 U.S. at

242.

This Court held over twenty years ago that “[t]he

Fourteenth Amendment . . . prohibits agents from

engaging in investigative surveillance of an individual

based solely on impermissible factors such as race.”

Avery, 137 F.3d at 354. We explained, in unequivocal

terms, that “[a] person cannot become the target of a

police investigation solely on the basis of skin color.”

Id.; see also Farm Labor Org. Comm. v. Ohio State

Highway Patrol, 308 F.3d 523, 542 (6th Cir. 2002)

(“[T]he Constitution forb[ids] embarking on an

investigation of someone for a particular offense on the

basis of that person’s race.”).

When evaluating a motion for summary judgment,

we must “view[] [the evidence] in the light most

favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986) (quoting United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962) (per curiam)). “[A]ll

reasonable inferences must be made in favor of the

non-moving party.” Moran v. Al Basit LLC, 788 F.3d

201, 204 (6th Cir. 2015) (citing Little Caesar Enters.,

Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000)).

Further, the moving party bears the burden of showing

that no genuine issues of material fact exist. Celotex

Corp. v. Catrett, 477 U.S. 317, 324–25 (1986).

As the majority correctly notes, this Court’s role is

even more limited on an interlocutory appeal from the

denial of qualified immunity. Unlike in other summary

judgment appeals— which come to this Court when a

district judge grants summary judgment and thus ends

App. 46

a case in its entirety—we cannot consider whether the

evidence is sufficient to present a genuine issue for

trial. E.g., Moldowan v. City of Warren, 578 F.3d 351,

369–70 (6th Cir. 2009); Farm Labor, 308 F.3d at

536–37 (citing Johnson v. Jones, 515 U.S. 304, 317

(1995)). Similarly, “a defendant may not challenge the

inferences the district court draws from th[e] facts, as

that . . . is a prohibited fact-based appeal.” Hopper v.

Plummer, 887 F.3d 744, 757 (6th Cir. 2018) (alterations

in original) (quoting DiLuzio v. Village of Yorkville, 796

F.3d 604, 609 (6th Cir. 2015)).

While the majority cites these principles in

dismissing McKinley’s appeal, it takes a complete

about-face when it comes to Eisenbeis, McAteer, and

Falk. The majority presents no legal authority showing

the difference between McKinley’s claim of qualified

immunity and the claims of the other officers in this

case, and instead focuses on the factual inferences that

can be drawn from the record. And in doing so, the

majority impermissibly views the facts in the light

most favorable to the officers, characterizing their

involvement as “limited and based almost entirely on

the direction of others” and concluding that this

somehow negates any inference of discriminatory

purpose. (Maj. Op. at 18.)

Looking instead at the facts in the light most

favorable to Bey, a jury could easily find that McKinley

initiated surveillance of Bey and his friends because of

the color of their skin. A jury could also find that the

SOU officers engaged in prolonged surveillance of Bey

and his friends because of their race. And a jury could

find that race-based assumptions of criminality clouded

App. 47

the lens through which the officers perceived the

information they gained through their investigative

surveillance, preventing them from appreciating the

obvious truth crystallizing before them: that Bey and

his friends were not criminals engaged in illicit

activity, but rather law-abiding citizens simply

shopping for space heaters on a cold winter evening.

The longer the SOU officers’ surveillance continued,

the more exonerating evidence they uncovered. The

SOU officers monitored Bey and his friends as the

three men (1) drove to the 24-hour Livonia Meijer,

where the officers admit the men did not engage in any

illicit or suspicious activity; (2) proceeded to the

Livonia Walmart and, discovering it was closed, sat in

their car for a brief period of time while using their

phones to locate another 24-hour store, with the

officers again admitting that the men did not engage in

any suspicious activity; and (3) navigated to the

24-hour Canton Walmart, where they parked their van,

entered the store, browsed various departments, placed

items in their shopping cart, got in the checkout line,

and used a credit card to pay for their purchase—in

other words, where the men shopped in the same exact

manner as any other customers. The fact that this

lengthy series of completely innocuous conduct

heightened, rather than dissipated, the SOU officers’

suspicion is inexplicable—unless, of course, racial

prejudice prevented the SOU officers from appreciating

the obvious.

McKinley’s later attempt to justify his actions

suggests that he may have initiated surveillance and

ordered the stop because of race. McKinley claims that

App. 48

he decided to surveil Bey on a “hunch” because Bey’s

van was “kind of beat up.” (McKinley Dep., R 38-6 at

#446– 47, pp. 51, 54.) Many cars on the road are “kind

of beat up.” But elite teams of undercover police officers

do not conduct protracted surveillance on every “kind

of beat up” car they encounter based on an unspecified

“hunch,” diverting scarce resources away from other,

more-pressing concerns.

McKinley also wanted to “identif[y]” Bey and his

friends and have them explain “what they’ve done” for

the purpose of gathering “intelligence.” (Id. at PageID

#444, pp. 43–44.) McKinley suspected that the men

could have participated in “something else, some other

criminal activity,” and believed that by identifying the

men he might be able to “shore up” a criminal case in

a neighboring jurisdiction. (Id. at PageID #444–45, pp.

45–46.) But McKinley provided no objective basis for

his supposed belief that Bey and his friends had

engaged in illicit activity or that they were part of a

criminal “crew.” Based on McKinley’s need for Bey and

his friends to “explain” themselves, McKinley’s

repeated use of the euphemism “crew” to describe the

men, McKinley’s nebulous desire to gather

“intelligence” on Bey and his friends, and McKinley’s

suspicion that the men might have taken part in other

unspecified “criminal activity” despite absolutely no

evidence linking them to any illegal conduct, a jury

could reasonably infer that McKinley surveilled the

men, and ordered the stop, because of the color of their

skin.

The jury could also find that Eisenbeis and McAteer

acted out of racial bias. It is true that McKinley made

App. 49

the decision to initiate surveillance. But Eisenbeis and

McAteer participated in the surveillance and

investigation. Eisenbeis and McAteer followed Bey and

his friends from the Livonia Meijer, to the Livonia

Walmart, and all the way to the Canton Walmart.

Eisenbeis called Canton dispatch and requested that a

uniformed Canton officer stop Bey. McAteer, for her

part, surveilled the men inside the Canton Walmart,

and may have reported to McKinley that the men were

about to try a “push out” or “credit card fraud,” despite

the fact that there was absolutely no basis—except for

racial bias—for McAteer to draw this inference of

criminality. The majority misconstrues the facts by

suggesting that Eisenbeis and McAteer were merely

bystanders. The majority is wrong. A jury could find

that Eisenbeis and McAteer participated in the

unconstitutional conduct by surveilling, pursuing, and

helping to stop Bey on the basis of his race.

The same is true for Falk. Falk stopped Bey and his

friends, even though he was aware of the utterly

benign events that had taken place inside the Canton

Walmart. Each piece of information that Falk heard

through the prep radio should have exonerated Bey and

his friends from any suspicion of criminal activity. But

Falk nonetheless effectuated the stop after the men

paid for the items and exited the store without

incident. And even though Falk knew that the men had

paid for the space heaters, Falk still demanded that

Bey exit the van and provide Falk the receipt and

credit card, because Falk felt the need to verify that the

men had not committed a crime. A jury could find that

race-based assumptions of criminality motivated Falk’s

actions.

App. 50

This circumstantial evidence of discriminatory

purpose must also be viewed in light of the statistical

evidence offered by Bey. As the majority notes, Bey

presented evidence showing that while the population

of Livonia is only 3.4% black, 53% of people arrested by

Livonia police are black. For Canton, 4.54% of the

population is black, but so are 34% of those arrested.

And in both jurisdictions, the police forces are

overwhelmingly white.

While the majority mentions this evidence when

dismissing McKinley’s appeal, it somehow disappears

from the discussion when the majority turns to the

other officers. To be clear, those officers’ actions were

already highly suspect. But this statistical evidence

provides even further support for the inference that

any reasonable viewer of these facts could have already

drawn: that Bey and his friends would never have been

followed and stopped if they were white.

The majority ignores this evidence and skews the

facts in favor of Defendants, butchering the standard

for summary judgment and disregarding our limited

role in reviewing a denial of qualified immunity. But by

far the most disturbing aspect of the majority’s deeply

flawed opinion is the deleterious impact it may have on

future civil rights plaintiffs seeking to hold police

officers accountable for alleged racial discrimination.

Because direct evidence of racial discrimination

“seldom exists,” most plaintiffs must attempt to prove

discrimination by inferences drawn from relevant

statistical or circumstantial evidence. Avery, 137 F.3d

at 355. And because a plaintiff “must prove that the

decisionmakers in his case acted with discriminatory

App. 51

purpose,” Kemp, 481 U.S. at 292, statistical evidence

alone will rarely suffice to establish an inference of

discrimination.

This leaves only one avenue for most plaintiffs:

drawing an inference of discrimination through

circumstantial evidence. But the majority imposes a

near categorical barrier on plaintiffs seeking to draw

such an inference. One would strain to imagine a

scenario where more circumstantial evidence would

exist, than is present in this case, that police officers

targeted, surveilled, and ultimately stopped persons

solely because of the color of their skin. Nonetheless,

the majority concludes (or in McKinley’s case, strongly

suggests) that Bey’s powerful circumstantial evidence

is not enough, that something more is needed before an

inference of discrimination may reasonably be drawn.

And so Bey’s civil rights fall by the wayside, taking this

Court’s summary judgment standard and common

sense down with them.

In their highest form, federal courts protect and

vindicate constitutional rights, particularly for those

who have been subject to systemic discrimination and

oppression. But the majority shuts the courthouse

doors on a large portion of those black and brown

citizens who plausibly allege that police officers

targeted, surveilled, or stopped them because of their

race. In its opinion, the majority signals to police

officers that they have license to conduct race-based

surveillance and make race-based stops, so long as they

do not admit to their true motivations. By so distorting

the facts and misapplying the law to protect

Defendants in this case, the majority incentivizes other

App. 52

officers to engage in race-based policing and commit

future constitutional violations.

B. Fourth Amendment

The majority also holds that officers Eisenbeis,

McAteer, and Falk are entitled to qualified immunity

on Bey’s Fourth Amendment claim. In reaching this

erroneous conclusion, the majority improperly applies

the case law regarding permissible public surveillance

and extends the collective knowledge doctrine to a

context where it does not belong. Contrary to the

majority’s holding, a reasonable jury could find that

Eisenbeis, McAteer, and Falk violated Bey’s clearly

established Fourth Amendment rights by subjecting

him to a non-consensual investigative detention

without reasonable suspicion. Accordingly, qualified

immunity does not protect Eisenbeis, McAteer, and

Falk from Bey’s Fourth Amendment claims.

The majority finds that Eisenbeis’ and McAteer’s

conduct did not implicate the Fourth Amendment at all

because Eisenbeis and McAteer merely participated in

nonintrusive public surveillance. In support of this

conclusion, the majority cites language from various

cases stating that police officers do not need an

objective basis for observing people and things placed

in public view. See, e.g., Kyllo v. United States, 533 U.S.

27, 32 (2001) (“[T]he lawfulness of warrantless visual

surveillance of a home has . . . been preserved.”); Katz

v. United States, 389 U.S. 347, 351 (1967) (“What a

person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment

protection.”); United States v. Houston, 813 F.3d 282,

App. 53

289 (6th Cir. 2016) (“[P]olice may view what the public

may reasonably be expected to view.”).

But because the majority fails to adequately

acknowledge that this case is about race, it distorts the

relevant inquiry. The question is not whether police

officers can observe people and things in public places;

the answer to this question is, quite obviously, “yes.” It

is whether officers can surveil and stop someone based

solely on that person’s race. The answer to this

question is, quite obviously, “no.” See, e.g., United

States v. Anderson, 923 F.2d 450, 455 (6th Cir. 1991)

(“[S]uspicions based solely on the race of the person

stopped cannot give rise to a reasonable suspicion

justifying a Terry stop.” (citing United States v.

Brignoni-Ponce, 422 U.S. 873, 884 (1975))).

The majority’s strained attempt to exonerate

Eisenbeis and McAteer suffers from another

fundamental flaw. The majority holds that Eisenbeis

and McAteer did not violate Bey’s Fourth Amendment

rights because they did not “personally participate[]” in

the stop. (Maj. Op. at 9.) But the majority minimizes

Eisenbeis’ and McAteer’s conduct and ignores the

central roles they played in the efforts to stop Bey. Of

course, we must assess whether each officer is entitled

to qualified immunity and not, as the majority states,

“lump” the officers together. (Id.) But in its

examination of each officer’s conduct, the majority loses

sight of the larger factual context in which the officers

acted.

It is true that Eisenbeis and McAteer did not

themselves order, or conduct, the stop. But they each

played vital roles in the conduct that culminated in the

App. 54

stop. They surveilled and pursued Bey and his friends

from Livonia to Canton. Eisenbeis called Canton

dispatch to request that a Canton officer make contact

with Bey and his companions. And McAteer followed

the men inside the store and provided

contemporaneous reports about their alleged actions.

For these reasons, the majority’s analogy to Burley v.

Gagacki, 729 F.3d 610 (6th Cir. 2013), obviously fails.

Eisenbeis and McAteer were not simply “present” at

the scene of a Fourth Amendment violation; they

actively violated Bey’s constitutional rights. And at any

point during the prolonged surveillance, Eisenbeis and

McAteer could have voiced their doubts about the

necessity of surveilling and stopping Bey based on

McKinley’s “hunch.”

Viewing the evidence in Bey’s favor, as we must do

at this point in the proceedings, Eisenbeis and McAteer

engaged in a course of conduct through which the SOU

officers, acting in concert, surveilled and stopped Bey

because of his race. The majority’s myopic analysis

loses sight of the larger factual context in which

Eisenbeis and McAteer acted. Because a jury could find

that the SOU officers acted together to surveil and stop

Bey, Eisenbeis and McAteer are not entitled to

qualified immunity.

The majority also concludes that qualified immunity

protects Falk from Bey’s Fourth Amendment claim.

This is because, the majority insists, this case falls

under the collective knowledge doctrine, and so Falk

cannot be held responsible because he acted based on

the directions he received from McKinley and the other

officers. But because the majority misunderstands the

App. 55

purpose of the collective knowledge doctrine, it

erroneously concludes that the collective knowledge

doctrine shields Falk as a matter of law. It does not.

The collective knowledge doctrine reflects the

principle that “[r]esponding officers are entitled to

presume the accuracy of the information furnished to

them by other law enforcement personnel.” United

States v. Lyons, 687 F.3d 754, 769 (6th Cir. 2012). It

also “recognizes the practical reality that ‘effective law

enforcement cannot be conducted unless police officers

can act on directions and information transmitted by

one officer to another.’” Id. at 766 (quoting United

States v. Hensley, 469 U.S. 221, 231 (1985)). Because

officers often need to “‘act swiftly [and] cannot be

expected to cross-examine their fellow officers about

the foundation of transmitted information,’ we impute

collective knowledge among multiple law enforcement

agencies, even when the evidence demonstrates that

the responding officer was wholly unaware of the

specific facts that established reasonable suspicion for

the stop.” Id. (alteration in original) (quoting Hensley,

469 U.S. at 231). When analyzing whether the

collective knowledge doctrine applies, this Court must

determine “what information that officer [invoking the

collective knowledge doctrine] was reasonably entitled

to rely on in deciding how to act, based on an objective

reading of the information.” Humphrey v. Mabry, 482

F.3d 840, 848 (6th Cir. 2007).

The collective knowledge doctrine is most applicable

in a quickly unfolding situation, in which the

responding officer possesses little or no knowledge of

the facts giving rise to reasonable suspicion and lacks

App. 56

the ability to independently corroborate that

information. For instance, in Lyons, we held that the

collective knowledge doctrine protected state troopers

who stopped a vehicle containing contraband upon a

request from the DEA. 687 F.3d at 765–69. We

emphasized that “the troopers made no attempt to

develop or to otherwise confirm the facts underlying

the DEA’s request, but instead objectively relied

entirely on unverified information furnished to them by

fellow law enforcement.” Id. at 768. We found that the

collective knowledge doctrine “clearly” applied because

the state troopers had no independent knowledge of the

events giving rise to reasonable suspicion and no

ability to verify or confirm the basis for the DEA’s

request that they stop the vehicle. Id. Similarly, in

Hardesty v. Hamburg Township, 461 F.3d 646, 656 (6th

Cir. 2006), abrogated on other grounds by Florida v.

Jardines, 569 U.S. 1 (2013), we held that the collective

knowledge doctrine protected the Pinckney officers who

entered a home without a warrant because they relied

completely “upon the information provided by the

Hamburg officers that an individual in the house

appeared unconscious and bleeding.” Like Lyons,

Hardesty involved a straightforward application of the

collective knowledge doctrine: the Pinckney officers

lacked any independent information about the

circumstances allegedly necessitating the warrantless

entry and merely acted on the statements provided by

the Hamburg officers that someone inside required

urgent medical attention. Id.

The collective knowledge doctrine does not apply

here. This case does not involve an officer who

responded to a quickly unfolding situation and acted

App. 57

without independent knowledge. Instead, Falk himself

was involved in the surveillance and investigation at

the Canton Walmart. He received McKinley’s radio

updates and knew what Bey and his friends were doing

inside the store. Falk could have—and should

have—determined for himself whether reasonable

suspicion existed for a stop. Unlike the state troopers

in Lyons and the Pickney officers in Hardesty, who had

minimal information and lacked any reason to doubt

the constitutionality of police intervention, Falk may

have had reason to know that no objective basis existed

to stop Bey. Viewing the facts in the light most

favorable to Bey, Falk knew that Bey and his friends

placed items in their shopping cart, proceeded to the

checkout, paid for the items without incident, and

exited the store just like any other law-abiding

customers. Just as a jury could find that McKinley

lacked reasonable suspicion to order the stop, a jury

could similarly conclude that Falk possessed sufficient

information, based on the details that McKinley

conveyed to him, to know that the stop was not

justified.

In holding that the collective knowledge doctrine

protects Falk as a matter of law, the majority gets the

collective knowledge doctrine backwards. The majority

correctly explains that the collective knowledge

doctrine applies where the responding officer is

completely unaware of the facts giving rise to

reasonable suspicion or where, in the majority’s words,

the information received by the responding officer is

“quite skimpy.” (Maj. Op. at 12.) But the majority fails

to appreciate that the problem in this case is not that

App. 58

Falk had too little information—it is that he had too

much.

The majority apparently believes that as the level of

information possessed by the responding officer

increases, the collective knowledge doctrine becomes

more applicable. But the opposite is true. When a

responding officer obtains substantial information

about the circumstances allegedly warranting a stop,

his blind reliance on orders from other officers to

conduct a stop becomes less reasonable. The collective

knowledge doctrine protects officers who lack reason to

doubt the veracity of information supplied to them by

other officers. The majority distorts the doctrine to

protect officers who have more than enough

information to know that a stop is unconstitutional but

choose to conduct the stop anyway.

A jury could find that Falk knew, or should have

known, that no reasonable suspicion existed to stop

Bey. As a result, Falk’s reliance on McKinley’s request

to stop Bey was not reasonable and the collective

knowledge doctrine does not apply. See Mabry, 482

F.3d at 848. The majority erroneously extends the

doctrine to protect Falk simply because he executed the

stop at McKinley’s request, even though he should have

known that McKinely’s request violated Bey’s civil

rights. This blanket endorsement of a following-orders

defense cannot be the law.

III. CONCLUSION

This case is not about what my colleagues believe

may have transpired on the evening of March 16, 2013.

It is about whether a reasonable jury could determine

App. 59

that Defendants violated Bey’s constitutional rights. As

explained above, a jury could find that Defendants

violated Bey’s clearly established equal protection and

Fourth Amendment rights by surveilling, investigating,

and stopping him without any objective justification

and solely because of his race. But in granting

summary judgment to several of the officers who

followed and stopped Bey despite having zero evidence

of wrongdoing, the majority usurps the role of the jury

and imposes its own misguided view of the facts. Even

worse, the majority employs novel and indefensible

legal reasoning that substantially and unjustifiably

narrows the scope of the Equal Protection Clause. And,

most egregiously, the majority turns a blind eye to

race-based policing that violates the constitutional

rights of black and brown Americans. I therefore

dissent.

App. 60

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 14-13743

HON. DENISE PAGE HOOD

[Filed March 5, 2018]

______________________________________

CHRISTOPHER LEE-MURRAY BEY,

)

)

Plaintiff,

)

)

v.

)

)

ADAM FALK, CANTON CHARTER

)

TOWNSHIP, CITY OF LIVONIA,

)

ANDREW McKINLEY, ERIC

)

EISENBEIS, and MEGAN McATEER,

)

)

Defendants.

)

______________________________________ )

ORDER DENYING LIVONIA DEFENDANTS’

MOTION FOR REHEARING OR

RECONSIDERATION PER LR 7.1(h) [#55]

I. INTRODUCTION

On March 29, 2017, the Court issued an Order that,

in part, denied the Motion for Summary Judgment filed

App. 61

by Defendants City of Livonia, Andrew McKinley, Eric

Eisenbeis, and Megan McAteer (the “Livonia

Defendants”). The Livonia Defendants, other than the

City of Livonia (which was dismissed from this cause of

action in the Court’s March 29, 2017 Order), filed a

timely Motion for Reconsideration. Dkt. No. 55.

Pursuant to Local Rule 7.1(h)(2) of the Eastern District

of Michigan’s Local Rules, “[n]o response to the motion

and no oral argument are permitted unless the court

orders otherwise.” Having reviewed the Livonia

Defendants’ Motion for Reconsideration, the Court

concludes that no response or oral argument is

necessary.

II. LEGAL STANDARD

In order to obtain reconsideration of a particular

matter, the party bringing the motion for

reconsideration must: (1) demonstrate a palpable defect

by which the Court and the parties have been misled;

and (2) demonstrate that “correcting the defect will

result in a different disposition of the case.” E.D. Mich.

L.R. 7.1(h)(3). See also Graham ex rel. Estate of

Graham v. County of Washtenaw, 358 F.3d 377, 385

(6th Cir. 2004); Aetna Cas. and Sur. Co. v. Dow

Chemical Co., 44 F.Supp.2d 865, 866 (E.D. Mich. 1999);

Kirkpatrick v. General Electric, 969 F.Supp. 457, 459

(E.D. Mich. 1997).

A “palpable defect” is a “defect which is obvious,

clear, unmistakable, manifest, or plain.” Olson v. The

Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004).

The movant also must demonstrate that the disposition

of the case would be different if the palpable defect

were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v.

App. 62

Walgreens Income Protective Plan for Store Managers,

No. 10-CV-14442, 2013 WL 1040530, at *1 (E.D. Mich.

Mar. 15, 2013). “[T]he court will not grant motions for

rehearing or reconsideration that merely present the

same issues ruled upon by the Court, either expressly

or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).

III. ANALYSIS

The Livonia Defendants first argue that the Court

erroneously analyzed whether they had reasonable

suspicion to conduct an investigatory stop of Plaintiff.

They contend that they only requested that Defendant

Adam Falk (“Falk”) “make contact” with Plaintiff. The

Court finds this argument disingenuous. In fact, in

their response brief, the Livonia Defendants made

several arguments that reflect their summary

judgment motion was based on whether reasonable

cause existed for the “contact”: (a) the “criminal charge

was dismissed because the Canton Township officer did

not have personal knowledge of the suspicions of the

Livonia police that requested the contact. . . . this

motion is advanced on the premise that Mr. Bey

reasonably felt he was not free to leave in avoidance of

factual controversy. If this stop or detention was

supported by either probable cause or reasonable

suspicion, it was consitutionally valid, . . .” [Dkt. No.

38, PgID 267]; and (b) “[i]f Mr. Bey had refused to get

out with no further police action, then this would not

have been considered an investigatory stop as the facts

would have demonstrated that Mr. Bey was free to

leave.” [Dkt. No. 38, PgID 284. Except for a couple of

conclusory statements in the “Summary” of their

argument, the Livonia Defendants did not argue that

App. 63

they had the right to “make contact” in their summary

judgment motion. See Dkt. No. 38, PgID 283-90.

The Court also finds that evidence in the record

reflects that the Livonia Defendants were following

Plaintiff and his companions because they suspected

criminal activity, beginning in Livonia and continuing

in Canton, right up to the point of directing Falk to

“make contact” with Plaintiff. The Livonia Defendants,

as evidenced by McAteer conducting surveillance and

communicating her observations of Plaintiff and his

companions to McKinley while she was in the Canton

WalMart, believed Plaintiff and his companions were

engaged in retail fraud and/or credit card fraud in the

Canton Walmart. The Livonia Defendants

communicated these beliefs to Falk. The manner in

which Falk “made contact” with Plaintiff was to

immediately order Plaintiff out of the vehicle, an action

that is consistent with an investigatory stop. At a

minimum, that action creates a genuine dispute of

material fact that Falk’s “contact” was simply the

purpose of conversing with Plaintiff to obtain Plaintiff’s

identification, as the Livonia Defendants suggest.

In essence, the Livonia Defendants are asking the

Court to blindly accept that contact can be made for

any reason, such that law enforcement officers are

entitled to qualified immunity by asserting that they

were just “making contact” with someone. The Livonia

Defendants appear to be suggesting that, because the

officers state that they only intended to “make contact”

with Plaintiff and his companions, the Court should

ignore all of the other circumstances that existed or

were present at the time. To do so, however, would

App. 64

require denying and ignoring circumstances that

create, at a minimum, a genuine dispute of material

fact whether the interaction with Plaintiff and his

companions that the Livonia Defendants ordered and

attempt to justify was an investigatory stop.

For the reasons stated above, the Court does not

find that it was misled by a palpable defect regarding

whether there was an investigatory stop of Plaintiff or

the Livonia Defendants’ role in supporting and

ordering the investigatory stop of Plaintiff.

The Court is not persuaded that it was misled or

erred when it “disregarded” the possible M.C.L.

§ 257.225 (driving an unregistered vehicle) violation

involving the Plaintiff’s van. None of the Livonia

Defendants cited the “possible unregistered vehicle” as

a reason for the investigatory stop, despite allegedly

knowing that they could do so. The Livonia Defendants

again are asking the Court to ignore any intent of

officers and, implicitly, suggesting that officers should

be able to create a laundry list of possible violations

after-the-fact to justify their stop. But, to completely

ignore the intent of officers and the reasons they gave

(or did not give) for following Plaintiff and his

companions (and the actions or inactions of the officers,

which may demonstrate or permit inference of intent)

would insulate officers from a finding of discriminatory

conduct in virtually every case, regardless of the

evidence.

The Livonia Defendants suggest that the Court

relied on Judge Groner’s criminal ruling, but that is

conjecture. In its Order, the Court noted that Judge

Groner made a ruling finding that the stop of Plaintiff

App. 65

was baseless and that his ruling was not challenged.

The Court did not base its decision on Judge Groner’s

ruling, nor did the Court treat his ruling as having a

collateral estoppel or res judicata effect. The Livonia

Defendants also present a new argument regarding

what McAteer knew – or could not know – with respect

to the possible (suspected) retail fraud perpetrated by

Plaintiff and his companions. As it is a new argument,

it is not properly before the Court on a motion for

reconsideration. The Court is not persuaded that either

of those arguments establishes a palpable defect by

which the Court was misled.

The Livonia Defendants next argue that the Court

equated the merits of the Plaintiff’s claims with the

qualified immunity analysis. Ironically, despite earlier

arguing that the subjective intent of the Livonia

officers did not control, the Livonia Defendants

assertions regarding the qualified immunity analysis

are based on their belief that “Plaintiff generat[ed] no

fact questions regarding the officers’ knowledge or

suspicions, admitting that he had no idea what they

were thinking.” The Livonia Defendants also contend

that each Livonia officer is entitled to an analysis of his

or her conduct. The Court finds that they are either:

(1) ignoring the Court’s analysis regarding each officer

(see Dkt. No. 53, PgID 1436-42 for a discussion of why

Plaintiff’s action is viable against the individual

Livonia Defendants, in particular PgID 1441-42 as it

relates to McAteer and Eisenbeis); or (2) simply

rearguing the issue because they disagree with the

analysis and conclusion of the Court. The Court

concludes that the Livonia Defendants’ contentions

regarding qualified immunity and belief that the Court

App. 66

did not consider each Livonia officer individually

present no palpable defect by which the Court was

misled.

The Court also is not persuaded that it operated

under any palpable defect when conducting its analysis

of Plaintiff’s Equal Protection Claim as it pertains to

the Livonia Defendants. The Livonia Defendants ignore

that one of the factors the Court cited and upon which

it relied when finding a genuine dispute of material

fact on the equal protection claim was the absence of

any evidence that there was “no record” result

attributable to McKinley having the temporary plate

run on Plaintiff’s van (which McKinley states he

requested). Finally, with respect to the Livonia

Defendants’ argument about “[t]he Court’s OverReliance on the Statistics vis a vis the Equal Protection

Claim, the Court finds that they “merely present [the

same arguments and] the same issues ruled upon by

the Court” when it decided the Livonia Defendants’

Motion for Summary Judgment.

For the reasons stated above, the Court concludes

that the Livonia Defendants have not satisfied their

burden of demonstrating a palpable defect by which the

Court and the parties were misled, such that correcting

the defect would result in a different disposition of

their summary judgment motion.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for

Reconsideration filed by the Livonia Defendants [Dkt.

No. 55] is DENIED.

App. 67

IT IS ORDERED.

S/Denise Page Hood

Denise Page Hood

Chief Judge, United States District Court

Dated: March 5, 2018

I hereby certify that a copy of the foregoing document

was served upon counsel of record on March 5, 2018, by

electronic and/or ordinary mail.

S/LaShawn R. Saulsberry

Case Manager

App. 68

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 14-13743

HONORABLE DENISE PAGE HOOD

[Filed March 29, 2017]

______________________________________

CHRISTOPHER LEE-MURRAY BEY,

)

)

Plaintiff,

)

)

v.

)

)

ADAM FALK, CANTON CHARTER

)

TOWNSHIP, CITY OF LIVONIA,

)

ANDREW McKINLEY, ERIC

)

EISENBEIS, and MEGAN McATEER,

)

)

Defendants.

)

______________________________________ )

ORDER DENYING IN PART AND GRANTING

IN PART DEFENDANTS’ MOTIONS FOR

SUMMARY JUDGMENT [#38, 39]

I. INTRODUCTION

Plaintiff Christopher Lee-Murray Bey filed this 42

U.S.C. § 1983 action on September 29, 2014, alleging

App. 69

that Defendants violated his constitutional rights when

they illegally stopped and seized him. On June 28,

2016, Defendants City of Livonia (“Livonia”), Andrew

McKinley (“McKinley”), Eric Eisenbeis (“Eisenbeis”),

and Megan McAteer (“McAteer”) filed a Motion for

Summary Judgment [Dkt. No. 38], and Defendants

Charter Township of Canton (“Canton”) and Adam Falk

(“Falk”) filed a Motion for Summary Judgment. [Dkt.

No. 39] Both motions have been fully briefed. The

Court held a hearing on the motions on November 9,

2016.

For the reasons that follow, the Court denies in part

and grants in part the Motion for Summary Judgment

filed by Livonia, McKinley, Eisenbeis, and McAteer and

denies in part and grants in part the Motion for

Summary Judgment filed by Canton and Falk.

II. BACKGROUND

On March 16, 2013, sometime after midnight, 26year old Plaintiff Christopher Bey and his friends, 23year old DeAires Freeman and 19-year old Devon Burt

drove to a Meijer Department Store in the City of

Livonia to buy a portable space heater. (Dkt. No. 46,

Ex. A at 6, 25-26, 29; Dkt. No. 46, Ex. B at 14, 24, 31;

Dkt. No. 46, Ex. C at 19-20) The weather was cold but

clear. (Dkt. No. 46, Ex. D at 50) They drove together in

Plaintiff’s newly purchased 2000 Plymouth Grand

Voyager that had a valid pink temporary license tag

prominently displayed. (Dkt. No. 46, Ex. A at 38, 53)

All three men are black.

The three men went to the Meijer at I-96 and

Middlebelt in Livonia but were unable to locate a

App. 70

suitable heater. (Dkt. No. 46, Ex. A at 46-47) They left

the store and drove to a Walmart directly across the

street, only to find that it was closed. (Dkt. No. 46, Ex.

A at 49, 265-267; Dkt. No. 46, Ex. D at 15-17, 36 ) They

remained in the parking lot for a few minutes while

Plaintiff used his cell phone and located another 24hour Walmart that was open in the area. (Dkt. No. 46,

Ex. B at 31-32) They then drove to the Canton

Walmart.

At the Canton Walmart, the three men walked into

the store, got a shopping cart and headed towards the

back of the store. Freeman looked at a BB gun in the

sporting good section. (Dkt. No. 46, Ex. C at 26)

Plaintiff found two portable heaters, placed them in his

cart and proceeded to check-out. (Dkt. No. 46, Ex. A at

50, 68) Plaintiff took out his wallet, handed one credit

card to the cashier and completed his purchase. (Dkt.

No. 46, Ex. A at 51-52; Dkt. No. 46, Ex. E at 4) The

three men left the store and walked backed to the

Minivan. (Dkt. No. 46, Ex. A at 52) Plaintiff got in the

rear driver’s side seat, fastened his seat belt and closed

the door. (Dkt. No. 46, Ex. A at 69; Dkt. No. 46, Ex. B

at 33, 35)

At least three police cars immediately surrounded

the Minivan “like something out of SWAT.” (Dkt. No.

46, Ex. A at 55-56, 184; Dkt. No. 46, Ex. F at 38-39;

Dkt. No. 46, Ex. C at 34-35, 66; Dkt. No. 46, Ex. B at

34-35) Falk, a white uniformed Canton Township police

officer, approached Plaintiff and ordered him to “Get

out of the car.” (Dkt. No. 46, Ex. A at 58, 63; Dkt. No.

46, Ex. F at 25-26, 36-37, 40; Dkt. No. 46, Ex. G at 11)

Plaintiff obeyed the command and exited the vehicle.

App. 71

(Id.) For his safety and that of the officers, Plaintiff told

Falk he had a handgun and pointed to his right hip

where it was holstered. (Dkt. No. 46, Ex. A at 59; Dkt.

No. 46, Ex. F at 40-41, 44) Falk confiscated the weapon.

Falk told Plaintiff “we were investigating a possible

retail fraud or credit card fraud that had happened in

the store.” (Dkt. No. 46, Ex. F at 45) Plaintiff produced

a sales receipt and Falk “was satisfied at that point

that they had not committed retail fraud—or credit

card fraud[.]” (Dkt. No. 46, Ex. A at 61, 71-72; Dkt. No.

46, Ex. F at 46) Plaintiff handed Falk his Concealed

Weapons Permit License (“CPL”). (Dkt. No. 46, Ex. A at

188; Dkt. No. 46, Ex. F at 49) Falk had Canton

dispatch run the CPL and discovered it had expired. He

then arrested Plaintiff for unlawful carrying of a

concealed weapon. (Dkt. No. 46, Ex. A at 70-71, 82, 109;

Dkt. No. 46, Ex. F at 47)

During the foregoing events, Plaintiff, Freeman,

and Burt had been under surveillance by Livonia Police

Department’s plain clothes Special Operations Unit

(“SOU”). (Dkt. No. 46, Ex. H at 46; Dkt. No. 46, Ex. D

at 8-9) The four-member SOU consisted of McKinley,

Eisenbeis, McAteer (collectively, the “SOU officers”)

and Officer Richard Ostrowski, all of whom are white.

(Dkt. No. 46, Ex. I; Dkt. No. 46, Ex. H at 7; Dkt. No. 46,

Ex. J at 16) McKinley was the Officer in Charge. (Dkt.

No. 46, Ex. J at 7-8) Surveillance began when McKinley

saw a “beat up” minivan travelling southbound on

Middlebelt Road in Livonia. (Dkt. No. 46, Ex. J at 17,

51) The vehicle “wasn’t speeding or driving in a manner

that would raise any suspicion.” (Dkt. No. 46, Ex. J at

17) Upon seeing the minivan, McKinley made a U-turn

App. 72

and began to follow based on a “hunch.” (Dkt. No. 46,

Ex. J at 54)

McKinley noticed the minivan had a temporary

license plate (Dkt. No. 46, Ex. D at 9) and watched the

vehicle “occupied by three black males” turn into the

Livonia Meijer parking lot. (Dkt. No. 46, Ex. E at 3;

Dkt. No. 46, Ex. J at 17, 52-53) There was nothing

unusual about where or how the minivan parked. (Dkt.

No. 46, Ex. J at 20) SOU watched the three men enter

the store. (Dkt. No. 46, Ex. E at 3)

McKinley purportedly called Livonia dispatch, who

ran the temporary plate through the Law Enforcement

Information Network (“LEIN”) but was not “able to

verify it.” (Dkt. No. 46, Ex. F at 55; Dkt. No. 46, Ex. J

at 18) The officers acknowledge that LEIN was not

reliable for recent vehicle transactions because it may

take days before a vehicle is entered into the LEIN

system. (Dkt. No. 46, Ex. J at 54; Dkt. No. 46, Ex. H at

44-45; Dkt. No. 46, Ex. D at 57, 63) McKinley decided

not to stop the minivan because “they hadn’t done

anything wrong. I mean we were just watching them”

just in case “something else should happen to occur.”

(Dkt. No. 46, Ex. J at 18)

The SOU left the Meijer lot for a short period to

attend to “something else going on at the city at the

time.” (Dkt. No. 46, Ex. J at 17, 21) When they

returned, the minivan was still parked in the well-lit

lot and surveillance reestablished. (Dkt. No. 46, Ex. J

at 21-22) The officers had no information that the three

men had engaged in any unlawful conduct inside the

store. (Dkt. No. 46, Ex. J at 21-22, 25) The officers next

saw Plaintiff and his friends drive from the Meijer lot

App. 73

to a Walmart directly across the street, but that

Walmart was closed. (Dkt. No. 46, Ex. J at 23) The

minivan remained in the lot for a few minutes before:

(a) heading west on I-96 to northbound I-275,

(b) exiting at Six Mile Road (the first exit), (c) getting

back on southbound I-275, (d) exiting at Ford Road,

and (e) parking in the Canton Walmart parking lot.

(Dkt. No. 46, Ex. J at 23; Dkt. No. 46, Ex. D at 22, 3637; Dkt. No. 46, Ex. E at 3)1 The SOU officers followed

the minivan in a caravan of four unmarked vehicles.

(Dkt. No. 38, Ex. I) McKinley ordered McAteer to go

into the store “to keep walking surveillance on the

subjects.” (Dkt. No. 46, Ex. E at 4)

McAteer used her cell phone to relay what she saw

to McKinley. (Dkt. No. 46, Ex. H at 27; Dkt. No. 46, Ex.

J at 33-34, 37-38) She noticed one subject in “the

hunting section inquiring about guns.” (Dkt. No. 46,

Ex. H at 20-21, 29-31; Dkt. No. 46, Ex. D at 24; Dkt.

No. 46, Ex. J at 29-30) She saw the three men go to the

electronics department where “nothing in particular

stands out.” (Dkt. No. 46, Ex. H at 22) McAteer saw the

subjects place items in their shopping cart. (Dkt. No.

46, Ex. H at 23) She noticed nothing unusual as they

made their way to the cashier. (Dkt. No. 46, Ex. H at

1

Eisenbeis had no explanation for why his written report stated

that the minivan was “making turns for no reason.” (Dkt. No. 46,

Ex. E at pg 3.) He claimed that when Plaintiff missed an exit and

immediately returned to the freeway, it was a “cleaning move”

designed to shake a tailing police vehicle. (Dkt. No. 46, Ex. D at 3738.) Eisenbeis admitted that the minivan did not drive through

any residential neighborhoods. (Dkt. No. 46, Ex. D at 31.) It is

undisputed that the minivan did not dim it lights, drive at an

excessive rate of speed or attempt to conceal its presence.

App. 74

24-25) McAteer was watching for a “push-out.” (Dkt.

No. 46, Ex. H at 31) McKinley explained that a “pushout” is when a subject fills a shopping cart with

merchandise and runs it past the cashier and out the

door. (Dkt. No. 46, Ex. H at 26-27, 31; Dkt. No. 46, Ex.

J at 57, 64; Dkt. No. 46, Ex. F at 26-27, 36) There was

no push-out. (Dkt. No. 46, Ex. J at 64)

At the checkout register, McAteer saw one of the

“subjects” “flipping through some cards to, you know,

pick a card.” (Dkt. No. 46, Ex. H at 26, 31-32, 34-37;

Dkt. No. 46, Ex. D at 25; Dkt. No. 46, Ex. J at 38) She

reported that one of the young men selected a single

card from others, handed it to the cashier and paid for

the merchandise without incident. (Dkt. No. 46, Ex. H

at 26, 31-32, 34-37, 39; Dkt. No. 46, Ex. D at 25; Dkt.

No. 46, Ex. J at 38; Dkt. No. 46, Ex. E at 4) McAteer

saw no evidence of any crime. (Dkt. No. 46, Ex. H at 31,

34) McKinley also knew that the three young black

men had “absolutely not” committed a crime in Livonia

or Canton. (Dkt. No. 46, Ex. J at 46-47)

McKinley had the Canton police stop the three

young men “to make contact and identify these people.”

(Dkt. No. 46, Ex. J at 42) McKinley explained his

intent: “Well, we could get identification. That was our

first intent, to get these people identified. You know,

maybe they’re part of a crew. This could be intelligence

that we could use later through identification. Maybe

they were involved in something in another city and,

you know, information sharing.” (Dkt. No. 46, Ex. J at

App. 75

43, 45)2 McKinley explained that the secondary purpose

for the stop was to get an “explanation” why they were

shopping. (Dkt. No. 46, Ex. J at 44)3

Prior to or upon arriving at the Canton Walmart,

McKinley phoned a friend who worked for the Canton

Police Department “and gave them an overview of what

2

McKinley testified:

Q. Okay. You mentioned getting information about a

database or sharing information that you may get from the

stop.

A. Yes.

Q. Explain that to me. I don’t do police work and I’m not in

your profession. Explain that to me.

A. Well, let’s say you have a contractor come to your house

and he’s going to do some kitchen work. You would share

it with other friends. I put that in police work. This might

be a retail fraud crew. This might be a credit card fraud

crew which is rampant right now and by identifying these

people, they could be—we could do information sharing

through different departments and that might shore up if,

in fact, these guys are involved in something of that

nature, could shore up a case in Canton, in Redford,

Farmington Hills or it could be nothing. But you know,

sharing that information could be useful and productive,

you know, in the law enforcement realm.

(Dkt. No. 46, Ex. J at 45.)

3

McKinley explained:

You know, maybe just where are they coming from, where

they’re going, are they shopping, what are they doing to kind

of maybe paint us a picture if this is something we should be

concerned with or if it’s nothing and we’ll move on, having just

a conversation, conducting a roadside investigation.

Id. at 44.

App. 76

we had in Livonia and how it came to Canton, you

know. So they would have a history of what occurred.”

(Dkt. No. 46, Ex. J at 33) While en route to the Canton

store Falk was “advised [Livonia police] were following

three black males inside the Canton store that they

had been watching at one of their Livonia Walmart

stores” and were “shopping around.” (Dkt. No. 38, Ex.

K at 4; Dkt. No. 39, Ex. G at 11;4 Dkt. No. 46, Ex. D at

29; Dkt. No. 38, Ex. I) Upon meeting the SOU officers

at the Canton Walmart, Falk was given a Livonia prep

radio “so [he] can kind of hear what’s going on through

me—through Megan [McAteer], through me and then

through the police radio.” (Dkt. No. 46, Ex. J at 32;

Dkt. No. 46, Ex. F at 13, 33-34)

Falk was completely reliant on his “law enforcement

intuition” and the little information received from the

SOU. (Dkt. No. 46, Ex. F at 22, 58, 61) Falk assumed

that “[t]here’s a reason why they’re following these

subjects around at this time of night, they’re probably

doing retail fraud.” (Dkt. No. 46, Ex. F at 22, 32, 41)

Falk had no information that Plaintiff and his friends

and done anything illegal. (Dkt. No. 46, Ex. F at 34-36)

He simply “assumed” that “there’s a possibility of credit

card fraud.” (Dkt. No. 46, Ex. F at 36)

4

This conflicts with Falk’s deposition testimony that he first

learned that Plaintiff and his friends were black when he was

given the prep-radio. (Dkt. No. 46, Ex. G at 66) The audio of radio

contact between McKinley and Canton dispatch – and between

Canton dispatch and Falk) includes no reference to the race of the

van occupants. (Dkt. No. 46, Ex. F) In any event, Falk was aware

that Plaintiff and his friends no later than when he arrived at the

Canton Walmart and was given a police radio.

App. 77

Three marked Canton police cars surrounded the

minivan in the parking lot, with the four unmarked

vehicles staged by the SOU officers nearby. This was

not a traffic stop. (Dkt. No. 46, Ex. F at 63, 77.) The

three young men were not free to leave. (Id.) Falk

immediately ordered Plaintiff out of the vehicle. (Dkt.

No. 46, Ex G at 40) Plaintiff obediently complied. He

exited the vehicle and told Falk that he was armed and

gave the officer his CPL. Falk had Canton run the CPL

and discovered that it was expired. (Dkt. No. 38, Ex. I)

Plaintiff was arrested and placed in the backseat of

Falk’s cruiser – but no seatbelt was utilized for

Plaintiff. (Dkt. No. 38, Ex. K at 5) On the ride to the

Canton station, Plaintiff struck his head and began

seeing stars. (Dkt. No. 38, Ex. K at 5)

Plaintiff was charged in Wayne County Circuit

Court with a felony of carrying a concealed weapon.

(Dkt. No. 46, Ex. K) Plaintiff filed a motion to suppress

because the seizure was unreasonable and violated his

Fourth Amendment rights. At the suppression hearing,

Falk was unable to identify any suspicious activity to

justify the stop. (Dkt. No. 46, Ex. G at 12-16) Falk

testified that Plaintiff engaged in suspicious activity at

the Livonia Walmart by walking with a shopping cart,

looking at items but not buying anything. (Id. at 14-15.)

Falk testified that while in Canton “I did not have any

suspicious activity.” (Id. at 17.) At that point the circuit

court judge stated:

THE COURT: I’m thinking we’re in Russia or

something. I’m not sure what’s going on here. I

don’t know what’s going on here. I don’t even

know why you have any more questions. This is

App. 78

a no-brainer. The Court is going to suppress the

evidence.

The Court would find that there was

absolutely no reason in the world to stop these

people. In other words, I was waiting for you to

say that they left the store without paying or

something. I don’t know what they did. You said,

Livonia said they didn’t do anything illegal. That

they were acting suspicious. I mean I must have

committed a hundred of those suspicious - - I go

in stores all the time and push stuff around and

leave a buggy with stuff in it. I’ve even left

perishable items in the buggy. That’s probably a

crime. Didn’t do anything wrong.

I am shocked - - with all due respect, Officer

- - that you actually stopped these - - this person,

because of some suspicious activity. If they paid

for the items in the buggy and then walked out,

why would you question them? That made no

sense to me. And I’m not here to ask you a

question. I’m here - - based on the testimony

that I’ve heard there was absolutely no reason to

stop them, other than curiosity to see if they

maybe did something wrong or if they had some

- - excuse me - - if they had some contraband or

a firearm on them. Other than that, there was

no reason to stop them. There was no reason to

question them, especially this individual.

I don’t know if - - I was waiting for the

smoking gun. There’s nothing. So there was no

reason to question this individual or stop him,

and the Court’s going to suppress the evidence.

App. 79

Id. at 18-19. The Wayne County Circuit Court

dismissed that case, with prejudice. (Dkt. No. 46, Exs.

L and M.) The prosecutor did not appeal.

III. APPLICABLE LAW

A. Rule 56

Rule 56(a) of the Rules of Civil Procedures provides

that the court “shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

presence of factual disputes will preclude granting of

summary judgment only if the disputes are genuine

and concern material facts. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute about a

material fact is “genuine” only if “the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party.” Id. Although the Court must view

the motion in the light most favorable to the

nonmoving party, where “the moving party has carried

its burden under Rule 56(c), its opponent must do more

than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24

(1986). Summary judgment must be entered against a

party who fails to make a showing sufficient to

establish the existence of an element essential to that

party’s case, and on which that party will bear the

burden of proof at trial. In such a situation, there can

be “no genuine issue as to any material fact,” since a

complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily

App. 80

renders all other facts immaterial. Celotex Corp., 477

U.S. at 322-23. A court must look to the substantive

law to identify which facts are material. Anderson, 477

U.S. at 248.

B. Qualified Immunity

As recently stated by the Supreme Court:

The doctrine of qualified immunity shields

officials from civil liability so long as their

conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known. A clearly

established right is one that is sufficiently clear

that every reasonable official would have

understood that what he is doing violates that

right. We do not require a case directly on point,

but existing precedent must have placed the

statutory or constitutional question beyond

debate. Put simply, qualified immunity protects

all but the plainly incompetent or those who

knowingly violate the law.

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations

and quotation marks omitted). Qualified immunity is

a two-step process. Saucier v. Katz, 533 U.S. 194

(2001). First, the Court determines whether, based

upon the applicable law, the facts viewed in a light

most favorable to the plaintiff show that a

constitutional violation has occurred. Second, the Court

considers whether the violation involved a clearly

established constitutional right of which a reasonable

person would have known. Saucier v. Katz, supra.;

Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005). Only if

App. 81

the undisputed facts, or the evidence viewed in a light

most favorable to the plaintiff fail to establish a prima

facie violation of clear constitutional law can this court

find that the Defendants are entitled to qualified

immunity. Turner v. Scott, 119 F.3d 425, 428 (6th Cir.

1997).

Once a government official has raised the defense of

qualified immunity, the plaintiff “bears the ultimate

burden of proof to show that the individual officers are

not entitled to qualified immunity.” Cockrell v. City of

Cincinnati, 468 F. App’x 491, 494 (6th Cir. 2012)

(citation omitted). A plaintiff must also establish that

each individual defendant was “personally involved” in

the specific constitutional violation. See Salehphour v.

University of Tennessee, 159 F.3d 199, 206 (6th Cir.

1998); Bennett v. Schroeder, 99 F. App’x 707, 712-13

(6th Cir. 2004) (unpublished) (“It is well-settled that to

state a cognizable Section 1983 claim, the plaintiff

must allege some personal involvement by the each of

the named defendants”).

IV. ANALYSIS

Plaintiff alleges that Defendants violated: (1) his

Fourth Amendment rights when they seized him

without legal justification; and (2) his Fourteenth

Amendment equal protection rights because he was

targeted, scrutinized, and stopped because of his race.

Defendants assert that they had reasonable suspicion

to stop Plaintiff and that race was not a factor in their

decision to follow or seize Plaintiff.

Defendants devote some of their argument to the

issue of probable cause for arresting Plaintiff for

App. 82

carrying a concealed weapon. Those arguments ignore

that Plaintiff does not challenge whether there was

probable cause for the arrest; rather, Plaintiff

challenges whether there was a legal basis for the stop

and seizure in the first place. As those arguments are

irrelevant, the Court does not analyze them.

A. Fourth Amendment Claims

Under the Fourth Amendment, law enforcement

officer may initiate a conversation with a citizen

without implicating Fourth Amendment rights. United

States v. Mendenhall, 446 U.S. 544, 553-54 (1980). An

investigatory (Terry) stop or detention requires that the

officer has reasonable suspicion that a crime may have

occurred. Terry v. Ohio, 392 U.S. 1, 30 (1968). See also

United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing

Terry, 392 U.S. at 30) (reasonable suspicion that a

crime “may be afoot” will support a lawful investigatory

stop). The officer must possess “a particularized and

objective basis for suspecting the particular person . . .

of criminal activity” based on “specific and articulable

facts.” Smoak v. Hall, 460 F.3d 768, 778-79 (6th Cir.

2006) (internal citations omitted).

The reasonable suspicion “must be supported by

specific and articulable facts that would warrant a man

of reasonable caution in the belief that the action taken

was appropriate.” Terry, 392 U.S. at 88 (internal

quotations and citation omitted). Reasonable suspicion

“requires more than a mere hunch, but is satisfied by

a likelihood of criminal activity less than probable

cause, and falls considerably short of satisfying a

preponderance of the evidence standard. If an officer

possesses a particularized and objective basis for

App. 83

suspecting the particular person of criminal activity

based on specific and articulable facts, he may conduct

a Terry stop.” Dorsey v. Barber, 517 F.3d 389, 395 (6th

Cir. 2008) (quoting Smoak, 460 F.3d at 778-79).

In U.S. v. Arvizu, 534 U.S. 266, 273-274 (2002), the

Supreme Court stated:

When discussing how reviewing courts should

make reasonable-suspicion determinations, we

have said repeatedly that they must look at the

“totality of the circumstances” of each case to see

whether the detaining officer has a

“particularized and objective basis” for

suspecting legal wrongdoing. See, e.g., [United

States v. Cortez, 499 U.S. 411, 417–18 (1981)].

This process allows officers to draw on their own

experience and specialized training to make

inferences from and deductions about the

cumulative information available to them that

“might well elude an untrained person.” Id., at

418. See also Ornelas v. United States, 517 U.S.

690, 699 (1996).

“The court should ask whether the agents acted

reasonably under settled law in the circumstances, not

whether another reasonable, or more reasonable,

interpretation of the events can be constructed . . . after

the fact.” Hunter v. Bryant, 502 U.S. 224, 228 (1991).

“[T]he determination of reasonable suspicion must be

based on commonsense judgments and inferences about

human behavior. Illinois v. Wardlow, 528 U.S. 119, 125

(2000)(citing U.S. v. Cortez, 449 U.S. 411, 418 (1981)).

App. 84

1. SOU Officers

This case turns on one’s viewpoint. All parties agree

that the issue is whether there was probable cause or

reasonable suspicion to make the traffic stop. Plaintiff

argues that he did not, at any point, engage in any

criminal activity prior to being stopped by Falk. As

discussed below, the facts and the acknowledgments

and admissions of the SOU officers support that

finding.

There is one thing that could have justified a traffic

stop, but it was a civil infraction and the evidence is

uncontroverted that it was not a basis for stopping

Plaintiff’s minivan. It is undisputed that Plaintiff’s

minivan had a temporary plate on it because he had

purchased the vehicle only days earlier. Police may

effect a traffic stop if they have probable cause to

believe a person has committed a civil infraction or

reasonable suspicion of criminal activity. United States

v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012). M.C.L.

257.225 requires a motor vehicle to be properly

registered and plated before it may be driven lawfully.

The testimony of McKinley is that he caused the

plates to be run through LEIN and the result was “no

record.” Defendants contend that, from the time when

they learned the minivan had a “no record” result on

the temporary plate, they had probable cause to believe

a violation of M.C.L. 257.225 had occurred. But,

according to McKinley, Plaintiff’s minivan was not

stopped in Livonia because “they hadn’t done anything

wrong,” (Dkt. No. 38, Ex. E at 18) and Defendants have

offered no evidence (other than McKinley’s claim) that

the temporary plate was run through LEIN and that a

App. 85

“no report” result was obtained. For that reasons and

because the stop of Plaintiff’s minivan did not occur

until after an extended period of time passed and the

minivan’s occupants had stopped and shopped at a

Meijer in Livonia, stopped at a closed Walmart across

the street from Meijer, and driven to and shopped at a

Walmart in Canton, a reasonable fact finder could

determine that the purported “no report” result was

nothing more than a made up reason for a stop.

Although Defendants argue they could have stopped

the minivan at any time for this suspected civil

infraction, they never effectuated a stop on that basis.

Instead, Defendants observed all of the following

events, and Defendants maintain that their experience

and training led them to the conclusion that criminal

activity may be afoot.

A. There had been a rash of electronics and cellphone store break-ins in Livonia in the time

preceding March 2014, which was a reason (or

one of the reasons) for the SOU unit. (Dkt. No.

38, PgID 286, Ex. E at 52)

B. Criminals utilize vehicles with stolen or

inaccurate plates to avoid identification and a

“no record” vehicle, especially an older model

such as Plaintiff’s minivan, is suspicious. (Dkt.

No. 38, Ex. E at 53-54)

C. Stores are understaffed late at night, making it

an opportune time for criminals to go from store

to store checking out security and situations to

exploit. (Dkt. No. 38, Ex. G at 33)

App. 86

D. Plaintiff’s minivan was parked in the lot of the

Livonia Walmart for “an extended period of

time” when the store was closed, which was

“suspicious” because it could indicate that the

occupants were discussing strategy related to

where they had been or were going. (Dkt. No. 38,

Ex. E at 23-24, 60-61 and Ex. F at 16)

E. Plaintiff’s minivan went north on I-275, took the

first exit, and then headed south on I-275, which

is a recognized method of trying to discover or

lose law enforcement tails – known as a

“cleaning move.” (Dkt. No. 38, Ex. E at 60-61)

F. When the merchandise was purchased at the

Canton Walmart, the buyer shuffled through

numerous cards before paying, which might

indicate credit or gift card fraud. (Dkt. No. 38,

Ex. E at 58-59 and Ex. G at 34)

G. The weather was, according to some Defendants,

inclement. (Dkt. No. 38, PgID 287; Dkt. No. 50,

PgID 1408; Dkt. No. 50, Ex. G at 24)

Defendants contend that the SOU officers, based on

the totality of these circumstances and drawing on

their experiences and training, had reason to believe

(reasonable suspicion) that criminal activity may have

been afoot in the evening/early morning hours when

they Plaintiff. Relying on Arvizu, 534 U.S. at 273-74

(quoting Cortez, 499 U.S. at 418) (“officers [are allowed]

to draw on their own experience and specialized

training to make inferences from and deductions about

the cumulative information available to them that

App. 87

‘might well elude an untrained person.’”). (Dkt. No. 38,

Ex. E at 62)

Plaintiff notes that there is abundant evidence that

Defendants did not have probable cause. First,

Defendants have acknowledge that “all of the items,

taken individually, might well be completely innocent

or bereft of a distinct criminal behavior.” (Dkt. No. 38,

PgID 288) Second, McKinley testified that when

Plaintiff left the Canton Walmart, he knew that

neither Plaintiff nor his friends had committed a crime.

(Dkt. No. 38, Ex. E at 46-47) Third, Defendants have

not offered any evidence that the break-ins involved

any locations or similar types of stores Plaintiff

traveled on the evening of his arrest.

Fourth, it is not illegal to drive an older vehicle or

have a temporary plate on it. Fifth, it is not unusual to

shop at 2:00 a.m. at a 24-hour store, as that is the very

purpose of such stores—to be open all the time. Sixth,

it is not suspicious to travel from store to store looking

for an item – or to miss an exit on the expressway and

then take corrective action to go in the direction

intended. Seventh, there is no evidence that there was

anything suspicious about putting merchandise in the

cart at the Canton Walmart and paying for it with a

credit card, especially as there is no evidence that

multiple credit cards were used while checking out of

the Canton Walmart.

Plaintiff contends that such events, whether viewed

individually or collectively, do not amount to an

objectively reasonable suspicion to support an

investigatory stop. Citing United States v. Fuller, 120

F.Supp.3d 669, 679 (E.D. Mich. 2015) (citing United

App. 88

States v. McSwain, 29 F.3d 558 (10th Cir. 1994). It is

clear that the Wayne County Circuit judge presiding

over Plaintiff’s motion to suppress hearing agreed,

stating that “there was absolutely no reason in the

world to stop” and “no reason to question” Plaintiff

before granting the motion to dismiss. (Dkt. No. 46, Ex.

G at 18-19)

The Court concludes that there is a genuine dispute

of material fact that, even if Defendants had a reason

to believe Plaintiff and his friends were engaged in

suspicious activity, that reasonable suspicion

evaporated when McAteer watched them put the items

in their cart – and pay for those items with a single

credit card – before leaving the Canton Walmart. The

officers involved, including McKinley and Falk, were

aware of those facts. At that point, Defendants knew

that Plaintiff and his friends had not committed a

crime in Livonia or Canton. (Dkt. No. 46, Ex. J at 4647) McKinley’s testimony that the purpose of stopping

(seizing) Plaintiff and his friends was to gather

information, not due to reasonable suspicion of criminal

activity afoot further supports the existence of a

question of fact whether there was a valid basis for

reasonable suspicion to justify the stop:

You know, maybe just where are they coming

from, where they’re going, are they shopping,

what are they doing to kind of maybe paint us a

picture if this is something we should be

concerned with or if it’s nothing and we’ll move

on, having just a conversation, conducting a

roadside investigation.

App. 89

(Dkt. No. 46, Ex. J at 44) As Plaintiff asserts, gathering

intelligence for law enforcement and demanding an

explanation for why they were shopping does not

constitute a constitutionally permissible reason to

make a Terry stop. United States v. Pruitt, 174 F.3d

1215, 1221 (11th Cir. 1999).

Defendants argue that, if the Fourth Amendment

claims are viable against the SOU officers, the claims

against McAteer and Eisenbeis should be dismissed

because McKinley alone made the decisions to contact

the Canton Township Police Department and to have

Falk make contact with Plaintiff. The Court disagrees.

McAteer and Eisenbies were present throughout the

events. McAteer was inside the Canton Walmart

conducting surveillance on Plaintiff and his friends and

giving the other officers a play-by-play of what was

occurring inside the Walmart, including descriptions –

if not comments – suggesting that a “pushout” or other

retail fraud and credit card fraud – was possible, even

likely. Eisenbeis drafted a police report that indicates

that the dispatched offense, the subject and the verified

offense were “Suspicious Circumstances” but does not

contain any criminal activity committed by Plaintiff or

his friends – except for the possession of the firearm by

Plaintiff discovered after the stop.

The Court finds that there is a genuine dispute of

material fact as to whether Plaintiff’s Fourth

Amendment rights were violated by the SOU officers.

2. Falk

Falk contends that he had reasonable suspicion to

stop Plaintiff because:

App. 90

[B]ased on the facts and circumstances known to

Officer Falk at the time he approached

Plaintiff’s vehicle as well as the inferences that

he drew from that information given his

experience as a law enforcement officer, there is

no doubt that he had reasonable suspicion to

stop Plaintiff. Those articulable facts included:

that the request for Officer Falk to make contact

was by the Livonia SOU, which he knew was

highly trained in surveillance and crime

prevention (Ex. G, pp. 13-14); that it was

between 2:00 and 3:00 a.m., a time when retail

stores are understaffed and a time where

individuals generally do not travel from store to

store (Id. at 20, 33); that the weather was

“horrible,” which typically deters motorists from

being out on the roads (Id. at 24, 43); that

Plaintiff and his friends had traveled to stores in

Livonia and were now inside the Canton

Walmart (Ex. G, pp. 11-12, 31-33, 52; Ex. F);

that the Livonia SOU suspected that Plaintiff

was trying to commit a retail fraud inside the

Canton Walmart (Ex. G, pp. 26-27; 35-36); that

Plaintiff was driving a van with a temporary tag

that was not registered (Id. at 42, 53, 55) [Falk

argues that this alone provided reasonable

suspicion to perform an investigatory stop]; that

Plaintiff and his companions were in the gun

section of the Canton Walmart, which is not

typically staffed at that time of night (Id. at 26,

34); that Plaintiff and his friends were in the

electronic section of the store (Ex. H, pp. 20-22,

28); that the SOU suspected the men were going

to do a “push out” initially (Ex. G, pp. 26-27);

App. 91

that Plaintiff got in line and was cycling through

several credit cards, which is characteristic of

credit card or financial transaction fraud (Ex. G

pp. 27, 35-36; Ex. B, pp. 58-59, 61-63; Ex. H, pp.

25, 27). All of these things, in their totality,

certainly gave Officer Falk the reasonable

suspicion necessary to approach the vehicle and

conduct an investigatory stop.

(Dkt. No. 39, PgID 541)

Falk asserts that he was justified in relying upon

the SOU officers who had investigated Plaintiff and his

friends (the “collective knowledge doctrine”) – and was

instructed by McKinley to make contact with Plaintiff

when he left the Canton Walmart. Relying on Hardesty

v. Hamburg Twp., 461 F.3d 646 (6th Cir. 2006). In

Hardesty, the court dismissed a cause of action against

Pinckney officers who, upon arriving on the scene of

criminal activity, were told to go into the home by

Hamburg officers, even though the entry was without

a warrant. The court stated,

Reliance upon such information insulates the

Pinckney officers from civil liability in the event

the information relied upon was defective. . . .

Therefore, even if the Hamburg officers had

violated the Fourth Amendment in the course of

learning of the apparent emergency, the

Pinckney officers’ entry into the house based on

that information would not subject the Pinckney

officers to [Section] 1983 liability.

Id. at 656. See also United States v. Duval, 742 F.3d

246, 253-54 (6th Cir.), cert. denied, 135 S.Ct. 116 (2014)

App. 92

(“the collective knowledge of agents working as a team

is to be considered together in determining probable

cause.”). See also Lyons, 687 F.3d at 768-70 (citations

omitted):

The record demonstrates that the troopers were

not acting on their own initiative when they

stopped Defendant. The troopers testified that

they had no independent basis to target the

minivan; rather they did so solely based on

Agent Graber’s request. . . . The troopers

possessed all the information they needed to act

– a request by the DEA (subsequently found to

be well-supported) that they execute the traffic

stop . . . Responding officers are entitled to

presume the accuracy of the information

furnished to them by other law enforcement

personnel. They are also entitled to rely upon

the investigating officer’s representations of

reasonable suspicion, and to the extent

applicable, whatever exigent circumstances are

claimed to support a stop.”

Plaintiff counters that Falk, because he relied on

the SOU officers to stop and seize Plaintiff – and

because he had knowledge of what was occurring in the

Canton Walmart, lacked reasonable suspicion to stop

Plaintiff for the same reasons the SOU officers did. The

Court agrees that, at a minimum, there is a genuine

issue of material fact whether Falk had reasonable

suspicion to stop Plaintiff. First, the Wayne County

Circuit Court judge’s conclusions support this finding

as it relates to Falk. Second, in a light most favorable

to Plaintiff, the Court finds that Falk knew that

App. 93

Plaintiff and his friends had completed their purchase

at the Canton Walmart without incident and that they

had not engaged in any legal activity since the

surveillance began. (See, e.g., Dkt. No. 46, Ex. G at 17)

Third, unlike the officers in Hardesty and Lyons, there

is evidence that Falk was not acting “solely based on

[McKinley’s] request” to make the stop. Falk had heard

McAteer’s radio contact with the officers outside the

Canton Walmart and knew that Plaintiff and his

friends had gone through the checkout and paid for the

items in their cart. Based on that knowledge, Falk had

knowledge of Plaintiff’s (legal) activities, and Falk

independently had the ability to determine that there

was no reasonable suspicion to justify a stop of

Plaintiff.

The Court concludes that there is a genuine dispute

of material fact whether Falk had reasonable suspicion

to stop and seize Plaintiff and his friends, in violation

of Plaintiff’s Fourteenth Amendment rights.

B. Fourteenth Amendment Claims

Plaintiff alleges that he and his friends were

targeted, scrutinized, and stopped by the SOU officers

and Falk because they are black. Defendants contend

that race played no factor in the decision to investigate

and stop Plaintiff. In order to prevail on an Equal

Protection claim, a plaintiff must demonstrate that “a

state actor intentionally discriminated against the

plaintiff because of membership in a protected class.”

Henry v. Metro Sewer Dist., 922 F.2d 332, 341 (6th Cir.

1990). A plaintiff must prove by “direct, circumstantial,

or statistical evidence, that he was a target of racial

profiling.” United States v. Saucedo, 226 F.3d 782, 290

App. 94

(6th Cir. 2000), cert. denied, 531 U.S. 1102 (2001). A

plaintiff may “demonstrate discriminatory effect . . .

through the use of statistical evidence or other evidence

which address[es] the crucial question of whether one

class is being treated differently from another class

that is similarly situated.” Farm Labor Org. v. Ohio

State Hwy. Patrol, 308 F.3d 523, 534 (6 th Cir. 2002);

Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th

Cir. 2005).

Plaintiff bases his equal protection argument

against all officers on several things: (a) systemic

racism in law enforcement is “undeniable” and “is

especially true in mostly white communities with

mostly white police departments . . . such as Livonia

and Canton;” (b) Canton is 83.7% white and 4.54%

black and Livonia is 92% white and 3.4% black; (c) only

three of Canton’s 87 officers were black and only 1 out

of approximately 100 Livonia officers was black; (d) for

five year periods between 2010 and 2015, 34% of the

arrests were of blacks in Canton and 53% of the arrests

in Livonia were of blacks; (e) over 45% of the arrests by

Canton police for “obstructing police” and “obstructing

justice” were of blacks; and (f) the number of arrests of

blacks in Livonia is more than three times the number

of black residents of Livonia.

Plaintiff contends those factors, together with the

absence of reasonable suspicion to stop Plaintiff and his

friends, whom McKinley and Falk knew had not

committed a crime, in order to gather “intelligence” and

an “explanation” as to why they were shopping permits

an inference that Defendants had a discriminatory

purpose. Plaintiff suggest that, viewing the totality of

App. 95

the circumstances, the white police officers presumed

that the three black males were engaged in criminal

conduct when they were not, such that there is a jury

issue on this claim.

1. SOU Officers

Defendants argue that there is no direct evidence of

racial animus in this case, as no race-based comments

were made by anyone, and Plaintiff concedes there was

no rudeness. Defendants argue that Plaintiff is making

assumptions that he was stopped because he is black,

without any evidence to support that assumption.

Defendants indicate that it was the condition of the

minivan, in light of the time of night, the weather, and

the area crime history that prompted the initial

scrutiny, and that McKinley ascertained before

learning Plaintiff’s race that there was “no record” of

the temporary plate on the minivan being registered.

Plaintiff argues that McKinley knew that Plaintiff

and his friends were black when Plaintiff was in

Livonia. McKinley’s testimony demonstrates that was

possible, as he admits that the SOU officers saw the

three black males leave the Meijer store, though he

said only “possibly, you know, after they left the Meijer,

but I can’t say for sure.” (Dkt. No. 39, Ex. B at 55)

McKinley states that he knew “for sure that in Canton,

I was solid there were three black males” there. Id.

Because none of the officers saw any criminal activity

that evening, and there was a thought that the three

men were part of a larger “crew” and a source of

intelligence, Plaintiff concludes that it was their race

that they were followed and seized as “suspicious.”

App. 96

The SOU officers argue that Plaintiff must show

that: (1) he is a member of a protected class (they agree

he satisfies this prong); (2) who is similarly situated to

members of another class; and (3) was treated

differently from members of that other class. Citing

McMillan v. Svetanoff, 878 F.2d 186, 189 (7th Cir.

1989). The SOU officers argue that because Plaintiff

has not shown that there are any similarly situated

people who were treated differently, he has failed to

satisfy the second and third prongs. The Court finds

that is not accurate, as Plaintiff has submitted a

number of statistics that breakdown the race of persons

in contact with Livonia (and Canton) police.

The SOU officers also argue that the statistics

offered by Plaintiff, though they can aid in an indirect

or circumstantial equal protection case, do not show

any valid or relevant disparate impact here because the

statistical sampling is not sufficiently defined and

narrow to show discriminatory animus. They argue

that if there was an equal protection violation here, it

was before any contact was made.

With respect to the SOU officers and Falk, the

Court finds that there is a genuine dispute of material

fact whether the investigation and stop and seizure of

Plaintiff and his friends was based on their race. In

particular, McKinley’s explanation for why he started

following the minivan in the first place calls into

question his motivation for following Plaintiff and his

friends, especially as they did not stop the minivan

once they learned of the “no record” plates. The absence

of any evidence regarding the “no record” result of

running the temporary plate and the suggestion of the

App. 97

SOU officers that they did not know the race of

Plaintiff and his friends prior to the Canton Walmart

also suggests that the SOU officers may not be

forthcoming regarding the investigation and stop.

The SOU officers’ motion for summary judgment is

denied with respect to Plaintiff’s equal protection

claim.

2. Falk

Falk states that he did not know that Plaintiff (and

his friends) were African-American until he arrived at

the scene. (Dkt. No. 39, PgID 547; Ex. G at 11, 66)

Eisnbeis did not identify the race of the men in the

minivan to Canton dispatch (Dkt. No. 39, Ex. F), and

Falk did not speak to a SOU officer (or anyone from

Livonia) until Falk was at the Canton Walmart. (Dkt.

No. 39, Ex. G at 11, 66) The only item that raises a

question of whether Falk knew the race of the minivan

occupants before reaching the Canton Walmart is his

written report of the incident, which states, “While we

were en-route I was advised that [the SOU officers]

were following three black males inside the Canton

store that they had been watching at one of their

Livonia Walmarts.” (Dkt. No. 39, Ex. I at 4)

Plaintiff also points to a statement made by Falk at

his deposition:

Q. If race played a part in your decision to make an

arrest of somebody, would you admit that under

oath?

A. No.

App. 98

(Dkt. No. 47, Ex. F at 83) When questioned by his own

attorney regarding this issue, Falk then stated:

Q. I want to know – I want you to elaborate on

what you think your answer meant, what you

intended your answer to mean. And I’m not

leading you.

A. I understand. I think the reason I have a

problem with that question is I feel like he’s

saying that I am lying about that, that race did

not have a factor in this, in this situation.

Q. Is that what you intended your answer to be,

when you said you would not admit?

A. Yeah, I mean if that would – I guess if that

question was asked of me on the stand and race

was a factor, then I would say yes. I’m not

perjuring myself.”

Id. at 86 (see generally 83-86). Plaintiff suggests that

Falk’s failure to belt Plaintiff in the squad car after the

arrest and Falk’s driving in a manner that caused

Plaintiff to hit his head and see stars shows a disregard

for Plaintiff’s safety (presumably because he is black).

Falk argues that Plaintiff fails to “prove the decision

makers in his case acted with discriminatory purpose,”

as he must do to prevail on his Equal Protection claim.

McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Falk

argues that the Canton dispatcher would not have

known the race of the men to relay to Falk, so he could

not have known (his report notwithstanding). Falk

argues that it was not within his discretion whether to

make contact with the three men–he was instructed to

App. 99

do so–so he could not have factored Plaintiff’s race into

whether to stop Plaintiff or not. Falk also challenges

the statistics offered by Plaintiff, stating that there is

not a logical leap to use the statistics to demonstrate

that arrests of African-Americans lacked probable

cause or reasonable suspicion or a defendant was

acquitted. Falk says the statistics do not support an

assertion that his arrest must have been race-based,

which is Plaintiff’s burden. Citing United States v.

Avery, 137 F.3d 343, 356 (6th Cir. 1997) (“Only in rare

cases will a statistical pattern of discriminatory impact

conclusively demonstrate a constitutional violation.”).

Falk knew that the occupants of the minivan/the

subjects inside the Canton Walmart were black no later

than upon his arrival at the Canton Walmart – before

he made contact. As discussed above, there was an

absence of reasonable suspicion to stop Plaintiff and his

friends (looking at the facts in a light most favorable to

Plaintiff). Falk’s testimony regarding whether race

played a factor also could support a finding that the

fact that Plaintiff and his friends were black was one of

the reasons they were under surveillance and Falk

made the stop of the minivan. (Dkt. No. 47, Ex. F at 8386). For these reasons, the Court concludes that an

inference that race was a factor in the stop of Plaintiff

and his friends is reasonable. The Court concludes that

Falk is not entitled to summary judgment on Plaintiff’s

equal protection claim.

App. 100

C. Qualified Immunity

1. SOU Officers

Defendants argue that they were entitled to be

reasonably mistaken with regard to both the facts and

the law under the circumstances of the evening in

question, all of which rapidly unfolded. They argue that

even if the “no record” report regarding the minivan’s

plate did not establish probable cause, the SOU officers

were entitled to believe that the “no record” report was

sufficient under M.C.L. 257.225. They also contend

that, even if the circumstances did not give them

grounds for reasonable suspicion to believe criminal

activity was afoot, the officers were reasonably

mistaken in believing it was. The SOU officers contend

that Plaintiff’s premise that they ordered Plaintiff

seized simply to gather intelligence is misplaced.

Plaintiff counters that the contours of the Fourth

Amendment requirements for a Terry stop are clearly

established and that any reasonable officer would know

that a stop absent reasonable suspicion based on

objective and articulable facts violates the Fourth

Amendment. Plaintiff continues, stating that the

gathering of intelligence or an explanation for shopping

is not a legitimate basis of seizing/stopping someone

without more that speculation that they might commit

a crime. Plaintiff argues that Defendants did not have

reason to believe that he was committing a crime or

was in the process of doing so.

The SOU officers also contend that Plaintiff must

identify facts to show that their contact with him was

driven by race-based considerations, which they

App. 101

suggest he has not done because the investigation

began without knowledge of the race of Plaintiff or his

friends. They assert that Plaintiff would have to show

that no reasonable officer would have continued the

investigation upon the discovery of Plaintiff’s

race–something that the law does not require.

For the reasons set forth in Sections IV.A.1. and

IV.B. above, the Court finds that the SOU officers are

not entitled to qualified immunity. The genuine dispute

of material fact regarding whether race was a factor in

the investigation and seizure of Plaintiff and his

friends precludes a finding that a reasonable officer

could believe that considering race as a factor would

not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known–that is, it “is sufficiently clear that

every reasonable official would have understood that

what he is doing violates that right.” Mullenix, 136 S.

Ct. at 308.

2. Falk

Falk argues that, even if there is a determination

that evidence could show a constitutional violation by

Falk, he had reason to believe his conduct conformed to

the law. Falk states that it was reasonable to rely on

the observations and instructions of the SOU officers

who had Plaintiff under surveillance for a period prior

to requesting Falk’s involvement. Falk maintains that,

even if he was mistaken in this belief, this is the type

of case is the reason that qualified immunity exists

Plaintiff responds that the collective knowledge

doctrine, together with Falk’s involvement, establishes

App. 102

that Falk knew Plaintiff: (1) was black; (2) had paid for

the merchandise; (3) had not engaged in a “push out;”

and (4) had not committed any crime. For these

reasons, Plaintiff contends that Falk knew there was

no reasonable suspicion to justify stopping Plaintiff.

For the reasons stated in Sections IV.A.2. and

IV.B.2. above (namely, that Falk stated that race was

a factor), the Court denies Falk qualified immunity. As

with the SOU officers, the genuine dispute of material

fact regarding whether race was a factor in the

investigation and seizure of Plaintiff and his friends

precludes a finding that a reasonable officer could

believe that considering race as a factor would not

violate clearly established statutory or constitutional

rights of which a reasonable person would have

known–that is, it “is sufficiently clear that every

reasonable official would have understood that what he

is doing violates that right.” Mullenix, 136 S. Ct. at

308.

D. Conspiracy

A claim for conspiracy under §1983 “must be pled

with some degree of specificity and that vague and

conclusory allegations unsupported by material facts

will be sufficient to state such a claim.” Gutierrez v.

Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987) (citations

omitted). A civil conspiracy is “an agreement between

two or more persons to injure another by unlawful

action.” Weberg v. Franks, 229 F.3d 514, 526 (6th Cir.

2000). A plaintiff must show that there was “a single

plan, that the alleged coconspirator shared in the

general conspiratorial objective, and that an overt act

was committed in furtherance of the conspiracy that

App. 103

caused injury.” Hooks v. Hooks, 771 F.2d 935, 944 (6th

Cir. 1985). Section 1985(3) prohibits a conspiracy “for

the purpose of depriving either directly or indirectly,

any person or class of persons of the equal protection of

the laws or of equal privileges and immunitie

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