Thames v. City of Westland

310 F.Supp.3d 783

Kimberly THAMES, Plaintiff,

v.CITY OF WESTLAND, et al., Defendants.

CASE NO. 16–CV–14130

United States District Court, E.D. Michigan, Southern Division.

Signed April 20, 2018

David Yerushalmi, Chandler, AZ Patrick T. Gillen, Robert J. Muise, Ann Arbor, MI, for Plaintiff.

Gregory A. Roberts, Cummings, McClorey, Livonia, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 35) AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 36)

GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE

I. Overview

Plaintiff Kimberly Thames, a 57–year old pro-life advocate, brought this 42 U.S.C. § 1983 suit arising out of her arrest and weekend detention at a Westland police station holding cell, after an abortion clinic's security guard accused her of stating, "I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future." Thames denies making any statement involving the word, "bombs." Thames brought suit against Defendants the City of Westland, the Westland Chief of Police, four Westland police officers involved in her arrest, the Northland Family Planning Clinic, Inc. ("Northland") and its Chief Executive Officer, Renee Chelian, its employee Mary Guilbernat, and John Doe, the clinic's security guard. By prior order of the court, Northland, Chelian, and Guilbernat have been dismissed. Now before the court is a motion for summary judgment brought by the remaining Defendants as to the federal claims, and a cross-motion for partial summary judgment as to liability brought by Thames for most of the same claims. Oral argument was heard on March 15, 2018 and informs this court's decision. Also, in rendering its decision here, the court has reviewed the audiotape of the 9–1–1 call and various video recordings of Thames' arrest.

For the reasons set forth below, summary judgment shall enter for the City of Westland and Police Chief Jedrusik because there is no basis for Monell or supervisory liability. However, Defendants' motion for summary judgment for the arresting Defendants on Plaintiff's Fourth Amendment wrongful arrest claim shall be denied. Also, Defendants' motion for summary judgment shall be denied as to Plaintiff's First Amendment retaliatory arrest claim and Fourteenth Amendment equal protection claim as to Defendants Officer Gatti and Sergeant Brooks, but shall be granted as to Officers Soulliere and Tardif. Plaintiff's motion for partial summary judgment as to liability shall be denied.

II. Factual Background

On Saturday, August 27, 2016, Thames, a Roman Catholic and pro-life supporter, stood on a public sidewalk outside the Northland abortion clinic holding a rosary and a sign in defense of the unborn. Thames was known to the Northland clinic as a frequent protestor. At the same time, a religious sister was also peacefully protesting near Thames. Thames engaged the security guard, Robert Parsley, standing outside the clinic in conversation and informed him that she was praying for him and hoped he could find a new position. She alleges that he then informed her that there have been bomb threats against abortion clinics, to which she claims she responded that she was not aware of any bombings in Michigan. After their conversation, Thames left in her car to use a nearby restroom.

Parsley's version of their conversation is quite different. In two different accounts, he claims that Thames threatened that bombs would fall. He reported these allegations to employees of the clinic. One of the clinic's employees, defendant Guilbernat, placed a 9–1–1 call to the police. In that call, Guilbernat stated, "We have protestors outside and one of them just made a statement that there's going to be a bombing." (Doc. 35, Ex. B at 00:04:09). The 9–1–1 operator asks her, "What exactly did they say?" Id. at 00:09:12, and Guilbernat repeats, "There's going to be a bombing." Id. at 00:12–14. The operator sought a second time to clarify the threat, asking, "That's all they said is there's going to be a bombing? That's what they said, word for word?" Id. at 00:14–18. To which Guilbernat, replied, "Yes." Id. at 00:18–19. The operator then sought a third time to clarify the threat, to which Guilbernat accused Thames of stating "there's going to be a bombing." Id. at 01:57–58.

Guilbernat then gave the operator a description of the woman in question, describing her as dark complexioned, with dark hair in a bun, wearing a light blue short-sleeved top, a long blue skirt and flip-flops. Id. at 00:30–33, 1:01–11. In response to the 9–1–1 call, four Westland police officers responded to the clinic: Officers Jason Soulliere, John Gatti, Adam Tardif, and Sergeant Norman Brooks. These officers are named Defendants. Officer Halaas appeared later on the scene, and he has not been named in the lawsuit.

Thames returned to the location to continue protesting and saw several police vehicles and officers speaking to Parsley. Officer Gatti arrived on the scene first and interviewed Parsley and Guilbernat. Both identified Thames to him as the person who had made the statement. (Doc. 36, Ex. B at 8:50:19–25, 08:51:41–2, 08:52:01–03). Parsley told Officer Gatti that Thames stated, "I prophesy bombs are going to fall and they're going to fall in the near future." (Doc. 36, Ex. B at 8:51:31–8:52:53, Ex. K at 53:5–23). Parsley also accused Thames of stating, "I prophesy bombs are going to fall and they're going to fall on you people." (Doc. 40, Ex. E at 08:52:46–52). But when Parsley gave his written statement to Defendant Tardif a few minutes later, his story changed and he accused Thames of stating, "bombs, bombs, on America, and bombs will blow up this building." (Doc. 36, Ex. E, Ex. M at 18:22–25 and 19:1–3).

Officer Soulliere asked Thames if she had made a bomb threat, and she denied it. (Doc. 36, Ex. J at 40:23–25–51:1–20; Ex. B at 8:51:21–8:15:36). But she never specifically answered Officer Soulliere's questions about what exactly she did say to the guard, merely reiterating that she did not make a bomb threat, did not know what she had said to him that could have been misconstrued, and mentioned that he was the one who brought up alleged bombings at abortion clinics. Id. at 08:51:41–2, 08:51:43–08:52:31; Doc 36–3, 57:24–25 to 58:1–17. She also relayed her conversation with Parsley in which he told her about bombings for which she responded she was unaware of that activity. (Doc. 36, Ex. J at 57:24–25–58:1–17, Ex. B at 8:53:47–8:55:07; Ex. I at 42:18–25; 51:1–4; Ex. 1 at ¶ 18).

The senior officer on the scene, Sergeant Brooks, ordered Thames' arrest for making a terrorist threat. (Doc. 35, Ex. C at 30). Specifically, she was arrested for violating Michigan's anti-terrorism statute, Mich. Comp. Laws § 750.543m. Thames has not challenged the constitutionality of the statute. Officer Soulliere then handcuffed Thames. (Doc. 35, Ex. D at 30). After her arrest, Thames pleaded with the religious sister to come to her aid. (Doc. 36, Ex. J at 68:14–15). The religious sister told Officer Soulliere that she did not hear Thames make a bomb threat, implored him to question Thames and Parsley together so he could determine who was lying, and insisted that the ones that should be arrested were the clinic's owner and staff who were the ones "killing God's children." (Doc. 36, Ex. J at 69:12–71:22). Officer Gatti told the religious sister that she was a "disgrace." (Doc. 36, Ex. K at 19:23–25–20:1–5). The officers did not take a written statement from the sister or from two other persons who were outside the clinic when the alleged threat was made. (Doc. 36, Ex. J at 59:13–25–60:1–13; Ex. L at 23:24–25—24:1–5).

After Thames' arrest, she was placed in the back of Officer Halaas' patrol vehicle, but when he was called away to respond to another incident, she was moved to Officer Soulliere's patrol vehicle. (Doc. 35, Ex. E at 08:57:35–09:01:49; Ex. F at 75–5). At the time she was placed in Officer Halaas' vehicle, Thames told him, "You got the wrong person," to which he replied, "Ma'am, I don't give a shit! I got to go!" (Doc. 36, Ex. O at 46:18–25 to 47:1–10). After her arrest, Officers Soulliere and Halaas searched her vehicle, but did not find any explosives or any other contraband. (Doc. 35, Ex. E at 08:57:36–09:02:50; Ex. F at 72–3.) The officers did not search the clinic, the adjacent parking lot, or nearby dumpster, nor did they use any bomb sniffing dogs. In fact, the Westland police department does not have any bomb sniffing dogs, but would have to call the state police for such a search. The officers did not impound Thames' vehicle.

Officers Gatti and Soulliere testified at their depositions that the City of Westland did not train them to distinguish between true threats and protected speech. (Doc. 36, Ex. J at 36:16–19, Ex. K at 117:4–7). Sergeant Brooks testified:

I don't know the exact verbiage that—that he said to Officer Gatti. My—there's only one word that concerns me in this whole thing and that's bombs. Just like you can't yell fire in a crowded theater, you can't say anything about bombs near a facility that performs abortions.

(Doc. 36, Ex. at 29:20–25). At his deposition, Sergeant Brooks was asked why the officers did not search the surrounding vicinity of the abortion clinic for a bomb, and he responded:

At that—at that point we were not concerned about a bomb being physically there at that particular time because of the amount of protesters and employees and patients of the clinic. The reason we were sent there was because of the threat.

(Doc. 36, Ex. L at 28:9–13). Sergeant Brooks was then asked, if the threat was credible, why did they not evacuate the clinic, and he responded, the "threat doesn't have to be credible according to the law." Id. at 16–17. In addition, at the scene of the arrest, Sergeant Brooks also said, "Anybody who has anything to do with this whole thing, [they're] fanatics." (Doc. 36, Ex. C at PgID 597).

Soulliere drove Thames to the...