Bey v. Falk

CHRISTOPHER LEE-MURRAY BEY, Plaintiff, v. ADAM FALK, CANTON CHARTER TOWNSHIP,CITY OF LIVONIA, ANDREW McKINLEY, ERIC EISENBEIS,and MEGAN McATEER, Defendants.

Case No. 14-13743

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 29, 2017

HONORABLE DENISE PAGE HOOD

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 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, 26-year old Plaintiff Christopher Bey and his friends, 23-year 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 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 24-hour Walmart that was open in the area. (Dkt. No. 46, Ex. B at 31-32) They thendrove 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. (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 investigatinga 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 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 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, 36-37; 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 24-25) McAteer was watching for a "push-out." (Dkt. No. 46, Ex. H at 31) McKinley explained that a "push-out" 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 wecould use later through identification. Maybe they were involved in something in another city and, you know, information sharing." (Dkt. No. 46, Ex. J at 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...