Case 1:13-cv-00469-PLM Doc #1 Filed 05/01/13 Page 1 of 23 Page ID#1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

GILBERT WEBER and TYRONE HIGHTOWER,
Plaintiffs,
vs.
CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; Officer JOHN GUERRERO, in his individual capacity; Officer THOMAS MCCARTHY, in his individual capacity; Officer GREGORY REKUCKI, in his individual capacity; and Officer ANTHONY LEONARD, in his individual capacity,
Defendants.

Hon. Case No.
JURY TRIAL DEMANDED

COMPLAINT

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INTRODUCTORY STATEMENT 1. This civil rights case challenges the Grand Rapids Police Department’s ongoing practice of charging individuals with criminal trespassing at gas stations, bars and other commercial businesses open to the public, even though the individuals have done nothing wrong, and even though no one has asked them to leave. 2. For example, last summer Grand Rapids police officers arrested Plaintiff Gilbert Weber, charged him with trespass, and jailed him when he stopped his car to stretch at a gas station. No employee of the gas station ever told him he was unwelcome on the premises. 3. Similarly, in 2011, Plaintiff Tyrone Hightower was sitting in his car in a parking lot to a sports bar in order to get out of the rain while his friend held his spot in the line to enter the bar. Although Mr. Hightower was simply sitting in his vehicle and no one had told him that he was unwelcome on the premises, Grand Rapids police officers arrested him for “trespassing” and took him to jail. 4. The Grand Rapids Police Department (“GRPD”) has a policy, practice or custom of arresting individuals for trespass, without warning, at businesses open to the public based on general Letters of Intent to Prosecute Trespassers (“Letters of Intent”). These form letters simply say that “the occupant(s) and/or owners of this address will prosecute all trespassers.” See Blank Letter of Intent (Exh. A). Over 800 Grand Rapids businesses have signed these letters at the urging of the GRPD. 5. The Letters of Intent do not purport to bar any specific people from the premises. Nonetheless, the GRPD and its officers, relying on these letters and acting independently of the business owners, determine who belongs on the premises and who is guilty of criminal trespass.
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The GRPD and its officers have used the Letters of Intent as a substitute for probable cause to arrest numerous individuals, including Mr. Weber and Mr. Hightower, for criminal trespass.
6. While the charges against both Mr. Weber and Mr. Hightower were dismissed, they nonetheless suffered the indignity of being wrongfully arrested and jailed. Additionally, although both men wish to patronize businesses in downtown Grand Rapids, they fear being arrested and jailed again for innocent conduct, and they therefore avoid going downtown.
7. Plaintiffs bring this action under 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution to vindicate their right to be free from arrest without probable cause. They seek a declaration that their rights were violated, an injunction against future arrests for criminal trespass based solely on the Letters of Intent, and damages to compensate them for their unlawful arrests.
JURISDICTION AND VENUE 8. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343 because this is a civil action seeking redress for the deprivation of rights secured by the United States Constitution. 9. Plaintiffs’ claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202; Rules 57 and 65 of the Federal Rules of Civil Procedure; and the general legal and equitable powers of this Court. 10. Venue is proper in the Western District of Michigan pursuant to 28 U.S.C. § 1391(b), because that is the judicial district where the Defendants are located or reside, and where the majority of the events and omissions giving rise to this action occurred and will occur.
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PARTIES 11. Plaintiff Gilbert Weber is a resident of Grand Rapids, Michigan, who was arrested and jailed by GRPD officers for criminal trespassing without individualized suspicion of wrongdoing based on a generalized “Letter of Intent to Prosecute Trespassers.” 12. Plaintiff Tyrone Hightower is a resident of Kalamazoo, Michigan, who was arrested and jailed by GRPD officers for criminal trespassing without individualized suspicion of wrongdoing based on a generalized “Letter of Intent to Prosecute Trespassers.” 13. Defendant City of Grand Rapids is a municipal corporation located in Kent County, Michigan. 14. Defendant Kevin Belk is the duly appointed Chief of the Grand Rapids Police Department (“GRPD”) and is sued in his official capacity. 15. The GRPD operates under the direction of Defendant Belk, who is the chief law enforcement officer for the City of Grand Rapids and the final policymaker of the GRPD. 16. The GRPD is an entity created by and responsible to Defendant City of Grand Rapids. As such, Defendant Belk exercises his authority on behalf of and for the benefit of the City of Grand Rapids. 17. Defendant Belk is responsible for the enforcement of all applicable laws and for the arrest of all persons alleged to have violated the law within the jurisdiction of the City of Grand Rapids. Further, Defendant Belk is responsible for ensuring that GRPD law enforcement officers enforce the law consistent with constitutional requirements. 18. Defendant John Guerrero is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Gilbert Weber for criminal trespass on June 1, 2012. He is sued in his individual capacity.
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19. Defendant Thomas McCarthy is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Gilbert Weber for criminal trespass on June 1, 2012. He is sued in his individual capacity.
20. Defendant Gregory Rekucki is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Tyrone Hightower for criminal trespass on September 4, 2011. He is sued in his individual capacity.
21. Defendant Anthony Leonard is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Tyrone Hightower for criminal trespass on September 4, 2011. He is sued in his individual capacity.
22. At all times relevant to this Complaint, all Defendants were acting under the color of state law.
FACTUAL BACKGROUND The City’s Use of Letters of Intent to Prosecute Trespassers 23. The Grand Rapids Police Department solicits businesses throughout the City to sign general “Letters of Intent to Prosecute Trespassers,” a practice which, upon information and belief, has been in place since at least 1996. 24. The Letters of Intent are standardized forms that are completed by the owners or occupants of properties in Grand Rapids. 25. The Letter of Intent form is captioned “No Trespassing,” contains a space for the date, and is addressed to the attention of the Detective Unit, Grand Rapids Police Department. 26. The form then states: “Dear Sir/Madam: This letter serves notice to your office that the occupant(s) and/or owners of this address will prosecute all trespassers.”
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27. The remainder of the form requires the occupant/owner to fill in identifying information about the business or tenant and the property owner, including names, addresses, and phone numbers.
28. The form does not indicate for how long the signatory’s intent to prosecute trespassers shall remain in effect.
29. Once signed, Letters of Intent are placed on file by the GRPD for future reference. 30. In April 2012, the American Civil Liberties Union of Michigan submitted a Freedom of Information Act (“FOIA”) request to the City of Grand Rapids seeking information related to the use of Letters of Intent by the Grand Rapids Police Department. 31. The City’s response indicated that there were 2,024 Letters of Intent executed between January 1, 2009 and May 15, 2012. Of these, at least 815 were for a business entity. This does not include any previously issued letters that remain on file with the GRPD or any letters that have been signed since May 15, 2012. 32. The business entities that have executed Letters of Intent are open to the public and include retail stores, supermarkets, gas stations, restaurants, and even homeless serviceproviders. 33. Because such businesses are open to the public, a person who enters the publiclyaccessible premises of these businesses has legal authority to do so as an invitee, provided that the person has not been advised by the business that s/he is personally unwelcome. 34. The Letters of Intent do not purport to diminish in any way the legal significance of the fact that the businesses in question are open to the public.
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35. The Letters of Intent do not purport to allow the Grand Rapids Police Department to decide, without any further consultation with the property owner/occupant, that a particular individual is not authorized to be on the property.
36. The Letters of Intent do not purport to authorize officers of the Grand Rapids Police Department to arrest individuals simply for being present on the property.
37. The Letters of Intent do not purport to create probable cause that any particular individual is trespassing.
38. The Letters of Intent do not – and cannot, as a legal matter – purport to eliminate the constitutional requirement that an arrest for criminal trespassing must be supported by probable cause to believe that the arrested individual was trespassing.
39. Defendants have been on notice regarding this issue since at least 1997, when the Michigan Court of Appeals decided in People v. Clay1, that it is unconstitutional to use Letters of Intent as a substitute for probable cause.
40. In Clay, Grand Rapids police officers arrested the defendant for trespassing in the parking lot of a local gas station, pursuant to Grand Rapids City Ordinance § 9.133(1), and found a concealed weapon. The defendant in Clay moved to suppress the weapon. The City argued that the police officers made a valid arrest for trespassing because they were aware that the owner of the gas station had a Letter of Intent on file with the GRPD. In granting the defendant’s motion to suppress, the court pointed out that the crime of trespass requires that an individual either be forbidden to enter the premises or refuse to depart after being told to do so.2
1 1997 WL 33342783 (April 11, 1997). 2 Id. at *3.
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Plaintiff Gilbert Weber 41. In June 2012, 46-year-old Gilbert Weber, then a resident of Kentwood, was arrested for trespassing after pulling his vehicle into the lot of a BP gas station located at 801 Franklin Avenue, Grand Rapids. 42. The gas station was open for business at the time, and Mr. Weber was parked in clear view of any person working in the station. At no point did any representative of BP ask Mr. Weber to leave the parking lot. 43. Mr. Weber had pulled into the BP parking lot so that he could get out of the car to stretch, thereby relieving the chronic hip pain from which he suffers. 44. Grand Rapids police officers, Defendants Guerrero and McCarthy, approached Mr. Weber as he stood outside of his vehicle and questioned him regarding his presence on the premises. 45. After hearing Mr. Weber’s explanation, the officers conducted a search of his vehicle, and administered a breathalyzer test, neither of which produced any evidence of illegal activity. 46. Having failed to uncover any other basis for arrest, the officers then arrested Mr. Weber for trespassing, notwithstanding the fact that no BP representative had complained to the police or asked Mr. Weber to leave the premises. Although there were BP staff present at the gas station that night, at no point did the officers communicate with any BP representative regarding whether to arrest Mr. Weber. 47. According to the police report, the officers’ sole justification for the arrest was the existence of the Letter of Intent. The officers did not report any facts that would establish probable cause that Mr. Weber was trespassing.
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48. During a subsequent hearing in Mr. Weber’s criminal case, Defendant Guerrero testified under oath that no BP representative had complained to the police about Mr. Weber. Defendant Guerrero further testified regarding the Letter of Intent as the justification for Mr. Weber’s arrest.3
49. Mr. Weber was jailed for three days before a friend was able to post bond. While in jail, Mr. Weber experienced unnecessary pain and/or aggravated a pre-existing injury or medical condition.
50. In addition, Mr. Weber’s vehicle was impounded following his arrest. Mr. Weber was later required to pay approximately $280 to retrieve his vehicle from impound.
51. Mr. Weber was prosecuted by the Grand Rapids City Attorney’s office for violating Grand Rapids City Ordinance § 9.133(1).
52. Mr. Weber subsequently moved to dismiss the criminal charges against him. 53. On October 24, 2012, District Court Judge David J. Buter—noting that Mr. Weber’s case involved the same gas station where the unlawful arrest in People v. Clay had occurred—granted Mr. Weber’s motion to dismiss the case. 54. Judge Buter found that the City had presented “no evidence that Defendant was aware of this [Letter of Intent],” nor “that Defendant was aware through posted notice or personal contact that he was trespassing.”4 The court added that the Letter of Intent “does not accomplish as much as the City contends where, as here, the property owner is present and the business is open to the public.”5
3 See City of Grand Rapids v. Weber, Case No. 12-OM-1530, Transcript, Hearing on Motion to Dismiss (Oct. 3, 2012) (Exh. B). 4 City of Grand Rapids v. Weber, Case No. 12-OM-1530, Opinion (Oct. 24, 2012) (Exh. C). 5 Id.
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55. Because of his experience being arrested, jailed and prosecuted without probable cause, and because he fears again being arrested, jailed and prosecuted if he patronizes businesses or simply travels in downtown Grand Rapids, Mr. Weber avoids going to downtown Grand Rapids whenever possible.
56. Mr. Weber remains haunted by the idea that he can be seized and jailed for no reason at any time, and worries about how any future arrest could affect his health given his medical condition.
57. Although Mr. Weber would like to go to visit family members and patronize businesses in downtown Grand Rapids in the future, Mr. Weber fears that doing so will again result in his unlawful detention and/or arrest. Mr. Weber intends to avoid doing so for as long as the Defendants continue to use Letters of Intent as a basis for trespassing arrests.
Plaintiff Tyrone Hightower 58. On September 4, 2011, 33-year-old Tyrone Hightower, along with two friends, drove from Kalamazoo to Grand Rapids in order to patronize Cheero’s Sports Bar, located at 2510 Burton Street, SE, Grand Rapids. 59. Cheero’s was open for business at the time, but there was a line to get in. 60. Mr. Hightower let his friends out of the car to wait in line, while he parked the vehicle. Thereafter, because it had begun to rain, one of his friends returned to wait in the vehicle while the third friend stayed in line. 61. Two police officers, Defendants Gregory Rekucki and Anthony Leonard, approached Mr. Hightower’s vehicle. 62. The officers pulled Mr. Hightower and his friend out of the car, handcuffed them, and arrested them for criminal trespass. The handcuffs caused Mr. Hightower considerable pain.
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63. At no point did any representative of Cheero’s ask Mr. Hightower to leave the parking lot. Although there were staff of Cheero’s at the bar that night, at no point prior to Mr. Hightower’s arrest did the officers communicate with any representative of Cheero’s regarding whether to arrest Mr. Hightower.
64. The police video of the incident shows that when Mr. Hightower and his friend questioned the basis of their arrest, the officers informed them that they were arrested because the owner of Cheero’s had signed a general Letter of Intent.
65. The police report confirms that the officers’ sole proffered justification for arresting Mr. Hightower was that the owners of Cheero’s had signed a general Letter of Intent. The officers did not report any facts that would establish probable cause that Mr. Hightower was trespassing.
66. Mr. Hightower was transported in handcuffs to a local jail, where he spent approximately four hours before a friend posted his bond.
67. The vehicle Mr. Hightower was driving was impounded. The owner of the vehicle was forced to drive to Grand Rapids to retrieve the vehicle from impound, and had to pay impound and towing charges. To date, Mr. Hightower has paid $250 to the vehicle’s owner to cover her expenses.
68. Both Mr. Hightower and his friend were prosecuted by the Grand Rapids City Attorney’s office for violating Grand Rapids City Ordinance § 9.133(1).
69. Both pled not guilty, and the trespassing charges against them were eventually nolle prossed.
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70. Mr. Hightower suffered the indignity of being arrested in front of a parking lot full of Cheero’s patrons, of being deprived of his liberty without justification, and of being forced to make multiple court appearances as a criminal defendant.
71. Because of his experience being arrested, jailed and prosecuted without probable cause, and because he fears again being arrested, jailed and prosecuted if he patronizes businesses in Grand Rapids, Mr. Hightower has not visited Grand Rapids since his arrest, except to attend court hearings or meet with legal counsel.
72. Mr. Hightower remains haunted by the idea that he can be seized and jailed for no reason at any time.
73. Although he would like to patronize businesses in Grand Rapids in the future, as well as visit Grand Rapids for other reasons, Mr. Hightower fears that doing so will again result in his unlawful detention and/or arrest. He intends to avoid patronizing local businesses in Grand Rapids so as long as the Defendants continue to use Letters of Intent as a basis for trespassing arrests.
Plaintiffs’ Efforts to Urge Defendants to Abandon Letters of Intent as a Substitute for Probable Cause 74. In a letter dated February 5, 2013, Plaintiffs’ counsel, the American Civil Liberties Union of Michigan and the American Civil Liberties Union (collectively “ACLU”) informed the Defendant City of Grand Rapids of its concerns regarding the GRPD’s unlawful use of Letters of Intent as a means of establishing probable cause to arrest individuals for trespassing. See Feb. 5, 2013 ACLU Letter (Exh. D). 75. In the February 5 letter, the ACLU advised City officials that the Letters of Intent could not be used as a substitute for probable cause and served no legitimate law enforcement
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purpose. As such, the ACLU letter requested that the GRPD be directed to discontinue this unconstitutional practice immediately.
76. The ACLU has engaged in further written and verbal correspondence with the City since submission of the February 5 letter, but to this point the City has not stopped using generalized Letters of Intent as a substitute for probable cause.
Defendants City of Grand Rapids’ and Kevin Belk’s Custom, Policy or Practice of Using Generalized Letters of Intent as a Substitute for Probable Cause
77. The Grand Rapids Police Department maintains a custom, policy, or practice of arresting individuals for trespassing on the publicly-accessible property of private businesses across the city, based on the fact that the owner of the business in question signed a generalized Letter of Intent, even though the businesses in question are open to the public, the alleged trespassers have never been asked to leave by the lawful owner or occupant of the property, and there is no probable cause for a trespassing arrest.
78. This custom, policy or practice is evidenced by (1) official GRPD policies and practices surrounding the Letters of Intent; (2) the actions of GRPD officials and City of Grand Rapids officials with final decision-making authority; (3) the GRPD’s policy of affirmatively training police officers to rely on a generalized Letter of Intent as creating probable cause for arrest, or alternately of failing to adequately train and supervise police officers with respect to the legal requirements for arrest, thereby causing those officers to rely on generalized Letters of Intent as a substitute for probable cause; and (4) a custom of tolerating or acquiescing to repeated violations of the Fourth Amendment rights of individuals who were arrested for trespassing based solely on a generalized Letter of Intent without any individualized suspicion of wrongdoing.
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79. First, upon information and belief, it is the official policy of the GRPD to obtain and rely on generalized Letters of Intent as a basis for making trespassing arrests.
80. The GRPD developed a standardized form “Letter of Intent.” 81. The GRPD routinely uses this standardized form “Letter of Intent.” At least 2,024 such Letters were executed between January 1, 2009 and May 15, 2012. 82. The GRPD actively solicits business owners to sign “Letters of Intent” and keeps those letters on file. At least 815 such Letters were signed by business entities between January 1, 2009 and May 15, 2012. 83. The GRPD maintains information about which properties in the City of Grand Rapids are covered by Letters of Intent. 84. Upon information and belief, the GRPD makes this information easily accessible to GRPD officers. 85. The use of generalized Letters of Intent as a proxy for probable cause is standard operating procedure within the GRPD, and it is common knowledge within the GRPD and City Attorney’s office that Letters of Intent are used as the basis for making trespass arrests. 86. Second, in light of the Michigan Court of Appeals’ 1997 decision in People v. Clay and the Kent County district court’s 2012 decision to grant Plaintiff Weber’s motion to dismiss, Defendant Belk and Defendant City of Grand Rapids have long had actual or constructive notice that GRPD officers’ clear and persistent practice of arresting individuals for trespassing based solely on a Letter of Intent is unconstitutional. 87. Nevertheless, Defendant Belk and City of Grand Rapids have endorsed and maintained the policy of relying on Letters of Intent as a basis for trespassing arrests.
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88. In addition, the failure of Defendants Belk and the City of Grand Rapids to instruct their officers immediately to cease using or relying on generalized Letters of Intent as a substitute for probable cause, after Plaintiffs’ counsel outlined the unconstitutionality of the practice, reflects a conscious choice by Defendants to continue this unconstitutional practice.
89. Third, Defendants Belk and the City of Grand Rapids have either affirmatively trained and supervised their police officers so as to encourage the unconstitutional practice of using Letters of Intent as a substitute for probable cause, or, alternatively, have failed to meet their duty to adequately train and supervise their police officers in order to ensure that those officers act in accordance with well-established constitutional principles.
90. Upon information and belief, the GRPD trains officers how to solicit businesses to sign a Letter of Intent.
91. Upon information and belief, the GRPD trains officers how to determine whether a particular property is covered by a Letter of Intent.
92. Upon information and belief, the GRPD trains officers to note in their incident reports when making a trespass arrest based on a Letter of Intent that a Letter of Intent is on file for the property where the arrest was made.
93. Upon information and belief, the GRPD instructs its officers that the existence of a Letter of Intent constitutes probable cause for an arrest for trespass, and that officers may rely solely on a Letter of Intent when making a trespassing arrest on the site of a business that is open to the public.
94. Alternately, Defendants Belk and the City of Grand Rapids failed to adequately train GRPD officers and failed to provide GRPD officers with sufficient guidance and oversight
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regarding the legal requirements for a valid arrest, including the need for and permissible contours of probable cause.
95. Defendants Belk and the City of Grand Rapids have also failed to meet their duty to appropriately discipline their police officers for making arrests absent probable cause, in clear violation of the Fourth Amendment to the United States Constitution.
96. This failure to train, supervise and discipline had the highly predictable consequence of causing GRPD officer to rely on Letters of Intent as a substitute for probable cause when making trespass arrests, including the arrests of Plaintiffs.
97. Defendants Belk and the City of Grand Rapids failed to adequately train, supervise, and discipline GRPD officers for the challenged conduct, despite the fact that (a) the Defendants had actual or constructive notice of the challenged conduct through officers’ own routine admissions in incident reports that officers were making arrests based solely on the existence of a generalized Letter of Intent; (b) the Defendants had actual or constructive notice that the City was routinely prosecuting cases based on these incident reports despite the obvious lack of probable cause; and (c) the Defendants had actual or constructive notice of the relevant court decisions that generalized Letters of Intent do not create probable cause for a trespassing arrest. The failure to train, supervise and discipline under these circumstances constitutes deliberate indifference to the rights of Plaintiffs, and others who have, without warning, been arrested for trespass based on Letters of Intent.
98. Fourth, despite a clear and persistent pattern of GRPD officers relying on generalized Letters of Intent to make trespassing arrests in the absence of probable cause, and despite the fact that Defendants Belk and City of Grand Rapids had actual or constructive notice of this clear and persistent pattern, Defendants Belk and City of Grand Rapids either explicitly or
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tacitly approved of this unconstitutional conduct, such that their failure to act constitutes deliberate indifference to the rights of Plaintiffs, and others who have, without warning, been arrested for trespass based on Letters of Intent.
99. The custom, policy and practice of Defendants Belk and the City of Grand Rapids—including official policies, the actions of City and GRPD officials with final decision making authority, the failure to adequately train, supervise, and discipline GRPD officers for the challenged conduct, and the tolerance of repeated violations of individuals’ Fourth Amendment rights—are the moving force behind the challenged conduct and proximately caused the development and proliferation of the practice of using generalized Letters of Intent as a basis for trespassing arrests.
100. The custom, policy and practice of Defendants Belk and the City of Grand Rapids—including official policies, the actions of City and GRPD officials with final decision making authority, the failure to adequately train, supervise, and discipline GRPD officers for the challenged conduct, and the tolerance of repeated violations of individuals’ Fourth Amendment rights—were the moving force behind the unconstitutional conduct of Defendants Guerrero, McCarthy, Rekucki, and Leonard, and proximately caused Defendants Guerrero, McCarthy, Rekucki, and Leonard to effectuate the unlawful arrests of Plaintiffs Hightower and Weber.
Injunctive Relief 101. Although hundreds of businesses in Grand Rapids have signed Letters of Intent, there is no publicly available list identifying those businesses. 102. As a practical matter, it is difficult, if not impossible, for plaintiffs, or other members of the public, to determine whether a particular business has signed a Letter of Intent.
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Plaintiffs, or other members of the public, cannot know which of the many businesses in Grand Rapids are covered by a Letter of Intent.
103. Plaintiffs wish to enter and patronize businesses in Grand Rapids in the future without fear of being unlawfully stopped, arrested, prosecuted or incarcerated. As a result of Defendants’ policy, practice and/or custom of using generalized Letters of Intent as a basis for arresting individuals for criminal trespassing, Plaintiffs are unable to enter and patronize businesses in Grand Rapids without fear of being unlawfully stopped, arrested, prosecuted or incarcerated.
104. The custom, policy and practice of Defendants Belk and the City of Grand Rapids—including official policies, the actions of City and GRPD officials with final decision making authority, the failure to adequately train, supervise, and discipline GRPD officers for the challenged conduct, and the tolerance of repeated violations of individuals’ Fourth Amendment rights—has proximately caused Plaintiffs to avoid entering or patronizing Grand Rapids business establishments for fear of being unlawfully stopped, arrested, and jailed in violation of their Fourth Amendment rights.
105. Plaintiffs’ harm in being unable to patronize Grand Rapids business establishments without fear of being unlawfully stopped, arrested and jailed is ongoing, and cannot be alleviated except by injunctive relief. If the injunction requested in this case is granted, Plaintiffs will again patronize Grand Rapids businesses. There is no adequate remedy at law.
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CAUSE OF ACTION

VIOLATION OF THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES BY THE GOVERNMENT

(All Plaintiffs against All Defendants)

106. Plaintiffs reallege and incorporate by reference as if fully set forth herein the

allegations in all preceding paragraphs.

107. The Fourth Amendment to the United States Constitution protects the people from

unreasonable searches and seizures by the government. As such, it prohibits police from

subjecting people to arrest in the absence of probable cause to believe the individual in question

is engaged in wrongdoing.

108. Grand Rapids police officers’ practice of arresting individuals for trespassing in the

absence of probable cause, and based solely on the fact that the owner of the property in question

had signed a generalized Letter of Intent, violates the clearly established Fourth Amendment

prohibition against unreasonable searches and seizures.

109. Defendants, by arresting, jailing and prosecuting the Plaintiffs for trespassing in the

absence of probable cause and based solely on the fact that the owner of the property in question

had signed a generalized Letter of Intent, violated Plaintiffs’ clearly established Fourth

Amendment right against unreasonable searches and seizures.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that this Court:

a.

Enter a judgment declaring that Defendants’ reliance on generalized Letters of

Intent as the sole justification for making trespass arrests violates the Fourth

Amendment to the United States Constitution;

b.

Enter a judgment declaring that Defendants Guerrero and McCarthy violated

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Plaintiff Weber’s clearly established constitutional rights by arresting him for

criminal trespassing in the absence of probable cause;

c.

Enter a judgment declaring that Defendants Rekucki and Leonard violated Plaintiff

Hightower’s clearly established constitutional rights by arresting him for criminal

trespassing in the absence of probable cause;

d.

Issue a permanent injunction restraining Defendants, their employees, agents, and

successors from continuing to use generalized Letters of Intent as a basis for

making individual trespass arrests;

e.

Award damages to the Plaintiffs to compensate them for the indignity of being

subjected to an unlawful arrest; time spent in jail as a result of the unlawful arrest;

costs incurred as a result of the unlawful arrest; pain, suffering and injury sustained

as a result of the unlawful arrest and subsequent incarceration; and Plaintiffs’

ongoing fear of being unlawfully arrested and jailed in the future when frequenting

Grand Rapids business establishments;

f.

Award costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and

g.

Grant or award such other relief that this Court deems just and proper.

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Respectfully submitted,
/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union
Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 maukerman@aclumich.org
/s Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313-578-6824 msteinberg@aclumich.org

Attorneys for Plaintiffs

Dated:

May 1, 2013

s/Jason D. Williamson* Jason D. Williamson (NY 4645529) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 284-7340 jwilliamson@aclu.org
*Admission pending to U.S. District Court for the Western District of Michigan
/s Bryan J. Waldman Bryan J. Waldman (P 46864) ACLU Cooperating Attorney Sinas, Dramis, Brake, Boughton & McIntyre, P.C. 3380 Pine Tree Road Lansing, MI 48911 517-394-7500 bryanwaldman@sinasdramis.com

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Case 1:13-cv-00469-PLM Doc #1 Filed 05/01/13 Page 22 of 23 Page ID#22 INDEX OF EXHIBITS A. Blank Letter of Intent to Prosecute Trespassers B. City of Grand Rapids v. Weber, Case No. 12-OM-1530, Transcript, Hearing on Motion to
Dismiss (Oct. 3, 2012) C. City of Grand Rapids v. Weber, Case No. 12-OM-1530, Opinion (Oct. 24, 2012) D. Feb. 5, 2013 ACLU Letter
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JURY DEMAND Plaintiffs demand a jury on all issues so triable.

Respectfully submitted,

/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union
Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 maukerman@aclumich.org
/s Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313-578-6824 msteinberg@aclumich.org

/s/Jason D. Williamson* Jason D. Williamson (NY 4645529) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 284-7340 jwilliamson@aclu.org
*Admission pending to U.S. District Court for the Western District of Michigan
/s Bryan J. Waldman Bryan J. Waldman (P 46864) ACLU Cooperating Attorney Sinas, Dramis, Brake, Boughton & McIntyre, P.C. 3380 Pine Tree Road Lansing, MI 48911 517-394-7500 bryanwaldman@sinasdramis.com

Attorneys for Plaintiffs

Dated:

May 1, 2013

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 Case 1:13-cv-00469-PLM Doc #5 Filed 05/14/13 Page 1 of 24 Page ID#94

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

GILBERT WEBER and TYRONE HIGHTOWER,
Plaintiffs,
vs.
CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; Officer JOHN GUERRERO, in his individual capacity; Officer THOMAS MCCARTHY, in his individual capacity; Officer GREGORY REKUCKI, in his individual capacity; and Officer ANTHONY LEONARD, in his individual capacity,
Defendants.

Hon. Paul L. Maloney Case No. 1:13-cv-00469
JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT

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INTRODUCTORY STATEMENT 1. This civil rights case challenges the Grand Rapids Police Department’s ongoing practice of charging individuals with criminal trespassing at gas stations, bars and other commercial businesses open to the public, even though the individuals have done nothing wrong, and even though no one has asked them to leave. 2. For example, last summer Grand Rapids police officers arrested Plaintiff Gilbert Weber, charged him with trespass, and jailed him when he stopped his car to stretch at a gas station. No employee of the gas station ever told him he was unwelcome on the premises. 3. Similarly, in 2011, Plaintiff Tyrone Hightower was sitting in his car in a parking lot to a sports bar in order to get out of the rain while his friend held his spot in the line to enter the bar. Although Mr. Hightower was simply sitting in his vehicle and no one had told him that he was unwelcome on the premises, Grand Rapids police officers arrested him for “trespassing” and took him to jail. 4. The Grand Rapids Police Department (“GRPD”) has a policy, practice or custom of arresting individuals for trespass, without warning, at businesses open to the public based on general Letters of Intent to Prosecute Trespassers (“Letters of Intent”). These form letters simply say that “the occupant(s) and/or owners of this address will prosecute all trespassers.” See Blank Letter of Intent (Exh. A). Over 800 Grand Rapids businesses have signed these letters at the urging of the GRPD. 5. The Letters of Intent do not purport to bar any specific people from the premises. Nonetheless, the GRPD and its officers, relying on these letters and acting independently of the business owners, determine who belongs on the premises and who is guilty of criminal trespass.
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The GRPD and its officers have used the Letters of Intent as a substitute for probable cause to arrest numerous individuals, including Mr. Weber and Mr. Hightower, for criminal trespass.
6. While the charges against both Mr. Weber and Mr. Hightower were dismissed, they nonetheless suffered the indignity of being wrongfully arrested and jailed. Additionally, although both men wish to patronize businesses in downtown Grand Rapids, they fear being arrested and jailed again for innocent conduct, and they therefore avoid going downtown.
7. Plaintiffs bring this action under 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution to vindicate their right to be free from arrest without probable cause. They seek a declaration that their rights were violated, an injunction against future arrests for criminal trespass based solely on the Letters of Intent, and damages to compensate them for their unlawful arrests.
JURISDICTION AND VENUE 8. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343 because this is a civil action seeking redress for the deprivation of rights secured by the United States Constitution. 9. Plaintiffs’ claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202; Rules 57 and 65 of the Federal Rules of Civil Procedure; and the general legal and equitable powers of this Court. 10. Venue is proper in the Western District of Michigan pursuant to 28 U.S.C. § 1391(b), because that is the judicial district where the Defendants are located or reside, and where the majority of the events and omissions giving rise to this action occurred and will occur.
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PARTIES 11. Plaintiff Gilbert Weber is a resident of Grand Rapids, Michigan, who was arrested and jailed by GRPD officers for criminal trespassing without individualized suspicion of wrongdoing based on a generalized “Letter of Intent to Prosecute Trespassers.” 12. Plaintiff Tyrone Hightower is a resident of Kalamazoo, Michigan, who was arrested and jailed by GRPD officers for criminal trespassing without individualized suspicion of wrongdoing based on a generalized “Letter of Intent to Prosecute Trespassers.” 13. Defendant City of Grand Rapids is a municipal corporation located in Kent County, Michigan. 14. Defendant Kevin Belk is the duly appointed Chief of the Grand Rapids Police Department (“GRPD”) and is sued in his official capacity. 15. The GRPD operates under the direction of Defendant Belk, who is the chief law enforcement officer for the City of Grand Rapids and the final policymaker of the GRPD. 16. The GRPD is an entity created by and responsible to Defendant City of Grand Rapids. As such, Defendant Belk exercises his authority on behalf of and for the benefit of the City of Grand Rapids. 17. Defendant Belk is responsible for the enforcement of all applicable laws and for the arrest of all persons alleged to have violated the law within the jurisdiction of the City of Grand Rapids. Further, Defendant Belk is responsible for ensuring that GRPD law enforcement officers enforce the law consistent with constitutional requirements. 18. Defendant John Guerrero is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Gilbert Weber for criminal trespass on June 1, 2012. He is sued in his individual capacity.
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19. Defendant Thomas McCarthy is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Gilbert Weber for criminal trespass on June 1, 2012. He is sued in his individual capacity.
20. Defendant Gregory Rekucki is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Tyrone Hightower for criminal trespass on September 4, 2011. He is sued in his individual capacity.
21. Defendant Anthony Leonard is an officer of the Grand Rapids Police Department, who participated in arresting Plaintiff Tyrone Hightower for criminal trespass on September 4, 2011. He is sued in his individual capacity.
22. At all times relevant to this Complaint, all Defendants were acting under the color of state law.
FACTUAL BACKGROUND The City’s Use of Letters of Intent to Prosecute Trespassers 23. The Grand Rapids Police Department solicits businesses throughout the City to sign general “Letters of Intent to Prosecute Trespassers,” a practice which, upon information and belief, has been in place since at least 1986. 24. The Letters of Intent are standardized forms that are completed by the owners or occupants of properties in Grand Rapids. 25. The Letter of Intent form is captioned “No Trespassing,” contains a space for the date, and is addressed to the attention of the Detective Unit, Grand Rapids Police Department. 26. The form then states: “Dear Sir/Madam: This letter serves notice to your office that the occupant(s) and/or owners of this address will prosecute all trespassers.”
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27. The form requires the occupant/owner to fill in identifying information about the business or tenant and the property owner, including names, addresses, and phone numbers.
28. Upon information and belief, the second and third pages of the letter are intended for owners or landlords of private residences.
29. The second page provides blank spaces for the names and signatures of all tenants. Minors need not sign, but they must be listed.
30. The third page states that the purpose of the letter is to “assist in keeping trespassers off your property.” It further states that the letter is not to be used as an eviction notice and is not meant to bar tenants from having guests in their home.
31. The third page also states that the letters “must be renewed on a yearly basis or if and when, any change in tenants or owner occupancy.”
32. The final page of the letter includes a recitation of Grand Rapids City Ordinance §§ 9.132 and 9.133.
33. Once signed, Letters of Intent are placed on file by the GRPD for future reference. 34. In April 2012, the American Civil Liberties Union of Michigan submitted a Freedom of Information Act (“FOIA”) request to the City of Grand Rapids seeking information related to the use of Letters of Intent by the Grand Rapids Police Department. 35. The City’s response indicated that there were 2,024 Letters of Intent executed between January 1, 2009 and May 15, 2012. Of these, at least 815 were for a business entity. This does not include any previously issued letters that remain on file with the GRPD or any letters that have been signed since May 15, 2012.
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36. The business entities that have executed Letters of Intent are open to the public and include retail stores, supermarkets, gas stations, restaurants, and even homeless serviceproviders.
37. Because such businesses are open to the public, a person who enters the publiclyaccessible premises of these businesses has legal authority to do so as an invitee, provided that the person has not been advised by the business that s/he is personally unwelcome.
38. The Letters of Intent do not purport to diminish in any way the legal significance of the fact that the businesses in question are open to the public.
39. The Letters of Intent do not purport to allow the Grand Rapids Police Department to decide, without any further consultation with the property owner/occupant, that a particular individual is not authorized to be on the property.
40. The Letters of Intent do not purport to authorize officers of the Grand Rapids Police Department to arrest individuals simply for being present on the property.
41. The Letters of Intent do not purport to create probable cause that any particular individual is trespassing.
42. The Letters of Intent do not – and cannot, as a legal matter – purport to eliminate the constitutional requirement that an arrest for criminal trespassing must be supported by probable cause to believe that the arrested individual was trespassing.
43. Defendants have been on notice regarding the unconstitutional nature of this practice since at least 1997, when the Michigan Court of Appeals decided in People v. Clay1, that it is unconstitutional to use Letters of Intent as a substitute for probable cause.
44. In Clay, Grand Rapids police officers arrested the defendant for trespassing in the parking lot of a local gas station, pursuant to Grand Rapids City Ordinance § 9.133(1), and found
1 1997 WL 33342783 (April 11, 1997).
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a concealed weapon. The defendant, Jerry Clay, moved to suppress the weapon. The City argued that the police officers made a valid arrest for trespassing because they were aware that the owner of the gas station had a Letter of Intent on file with the GRPD. In granting the defendant’s motion to suppress, the court pointed out that the crime of trespass requires that an individual either be forbidden to enter the premises or refuse to depart after being told to do so.2
45. On April 2, 2010, Grand Rapids police officers again arrested Jerry Clay for trespassing—at the very same gas station where he had been wrongfully arrested thirteen years earlier.
46. The arresting officers specifically cited the Letter of Intent as the basis for the arrest of Mr. Clay.
47. The arresting officers included Grand Rapids police officers Greg Alcala and Thomas McCarthy. McCarthy, who is named as a defendant in this case, was also involved in the arrest of Plaintiff Gilbert Weber.
48. Ultimately, the charges against Mr. Clay were dismissed when the owner of the gas station submitted an affidavit on Mr. Clay’s behalf indicating that Mr. Clay was a lawful visitor to and frequent customer at his business, and that none of his employees had contacted the police regarding Mr. Clay’s presence on the property, or asked Mr. Clay to leave the premises. See Affidavit of Karamjit Singh (Exh. B).
49. On May 4, 2012, Jerry Clay filed suit in this court against the City of Grand Rapids, alleging various civil rights violations stemming from his unlawful arrest two years before, including a violation of the Fourth Amendment prohibition against unreasonable seizures.3
2 Id. at *3. 3 The case was assigned to the Hon. Janet T. Neff, Case No. 1:12-cv-441.
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50. The parties reached a settlement agreement in November 2012, and the case was then dismissed by stipulation.
Plaintiff Gilbert Weber 51. In June 2012, 46-year-old Gilbert Weber, then a resident of Kentwood, was arrested for trespassing after pulling his vehicle into the lot of a BP gas station located at 801 Franklin Avenue, Grand Rapids—the same gas station where the aforementioned Jerry Clay was unlawfully arrested by Grand Rapids police officers on two separate occasions. 52. The gas station was open for business at the time, and Mr. Weber was parked in clear view of any person working in the station. At no point did any representative of BP ask Mr. Weber to leave the parking lot. 53. Mr. Weber had pulled into the BP parking lot so that he could get out of the car to stretch, thereby relieving the chronic hip pain from which he suffers. 54. Grand Rapids police officers, Defendants Guerrero and McCarthy, approached Mr. Weber as he stood outside of his vehicle and questioned him regarding his presence on the premises. 55. After hearing Mr. Weber’s explanation, the officers conducted a search of his vehicle, and administered a breathalyzer test, neither of which produced any evidence of illegal activity. 56. Having failed to uncover any other basis for arrest, the officers then arrested Mr. Weber for trespassing, notwithstanding the fact that no BP representative had complained to the police or asked Mr. Weber to leave the premises. Although there were BP staff present at the gas station that night, at no point did the officers communicate with any BP representative regarding whether to arrest Mr. Weber.
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57. According to the police report, the officers’ sole justification for the arrest was the existence of the Letter of Intent. The officers did not report any facts that would establish probable cause that Mr. Weber was trespassing.
58. During a subsequent hearing in Mr. Weber’s criminal case, Defendant Guerrero testified under oath that no BP representative had complained to the police about Mr. Weber. Defendant Guerrero further testified regarding the Letter of Intent as the justification for Mr. Weber’s arrest.4
59. Mr. Weber was jailed for three days before a friend was able to post bond. While in jail, Mr. Weber experienced unnecessary pain and/or aggravated a pre-existing injury or medical condition.
60. In addition, Mr. Weber’s vehicle was impounded following his arrest. Mr. Weber was later required to pay approximately $280 to retrieve his vehicle from impound.
61. Mr. Weber was prosecuted by the Grand Rapids City Attorney’s office for violating Grand Rapids City Ordinance § 9.133(1).
62. Mr. Weber subsequently moved to dismiss the criminal charges against him. 63. On October 24, 2012, District Court Judge David J. Buter—noting that Mr. Weber’s case involved the same gas station where the unlawful arrest in People v. Clay had occurred—granted Mr. Weber’s motion to dismiss the case. 64. Judge Buter found that the City had presented “no evidence that Defendant was aware of this [Letter of Intent],” nor “that Defendant was aware through posted notice or personal contact that he was trespassing.”5 The court added that the Letter of Intent “does not
4 See City of Grand Rapids v. Weber, Case No. 12-OM-1530, Transcript, Hearing on Motion to Dismiss (Oct. 3, 2012) (Exh. C). 5 City of Grand Rapids v. Weber, Case No. 12-OM-1530, Opinion (Oct. 24, 2012) (Exh. D).
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accomplish as much as the City contends where, as here, the property owner is present and the business is open to the public.”6
65. Because of his experience being arrested, jailed and prosecuted without probable cause, and because he fears again being arrested, jailed and prosecuted if he patronizes businesses or simply travels in downtown Grand Rapids, Mr. Weber avoids going to downtown Grand Rapids whenever possible.
66. Mr. Weber remains haunted by the idea that he can be seized and jailed for no reason at any time, and worries about how any future arrest could affect his health given his medical condition.
67. Although Mr. Weber would like to go to visit family members and patronize businesses in downtown Grand Rapids in the future, Mr. Weber fears that doing so will again result in his unlawful detention and/or arrest. Mr. Weber intends to avoid doing so for as long as the Defendants continue to use Letters of Intent as a basis for trespassing arrests.
Plaintiff Tyrone Hightower 68. On September 4, 2011, 33-year-old Tyrone Hightower, along with two friends, drove from Kalamazoo to Grand Rapids in order to patronize Cheero’s Sports Bar, located at 2510 Burton Street, SE, Grand Rapids. 69. Cheero’s was open for business at the time, but there was a line to get in. 70. Mr. Hightower let his friends out of the car to wait in line, while he parked the vehicle. Thereafter, because it had begun to rain, one of his friends returned to wait in the vehicle while the third friend stayed in line. 71. Two police officers, Defendants Gregory Rekucki and Anthony Leonard, approached Mr. Hightower’s vehicle.
6 Id.
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72. The officers pulled Mr. Hightower and his friend out of the car, handcuffed them, and arrested them for criminal trespass. The handcuffs caused Mr. Hightower considerable pain.
73. At no point did any representative of Cheero’s ask Mr. Hightower to leave the parking lot. Although there were staff of Cheero’s at the bar that night, at no point prior to Mr. Hightower’s arrest did the officers communicate with any representative of Cheero’s regarding whether to arrest Mr. Hightower.
74. The police video of the incident indicates that when Mr. Hightower and his friend questioned the basis of their arrest, the officers informed them that they were arrested because the owner of Cheero’s had signed a general Letter of Intent.
75. The police report confirms that the officers’ sole proffered justification for arresting Mr. Hightower was that the owners of Cheero’s had signed a general Letter of Intent. The officers did not report any facts that would establish probable cause that Mr. Hightower was trespassing.
76. Mr. Hightower was transported in handcuffs to a local jail, where he spent approximately four hours before a friend posted his bond.
77. The vehicle Mr. Hightower was driving was impounded. The owner of the vehicle was forced to drive to Grand Rapids to retrieve the vehicle from impound, and had to pay impound and towing charges. To date, Mr. Hightower has paid $250 to the vehicle’s owner to cover her expenses.
78. Both Mr. Hightower and his friend were prosecuted by the Grand Rapids City Attorney’s office for violating Grand Rapids City Ordinance § 9.133(1).
79. Both pled not guilty, and the trespassing charges against them were eventually nolle prossed.
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80. Mr. Hightower suffered the indignity of being arrested in front of a parking lot full of Cheero’s patrons, of being deprived of his liberty without justification, and of being forced to make multiple court appearances as a criminal defendant.
81. Because of his experience being arrested, jailed and prosecuted without probable cause, and because he fears again being arrested, jailed and prosecuted if he patronizes businesses in Grand Rapids, Mr. Hightower has not visited Grand Rapids since his arrest, except to attend court hearings or meet with legal counsel.
82. Mr. Hightower remains haunted by the idea that he can be seized and jailed for no reason at any time.
83. Although he would like to patronize businesses in Grand Rapids in the future, as well as visit Grand Rapids for other reasons, Mr. Hightower fears that doing so will again result in his unlawful detention and/or arrest. He intends to avoid patronizing local businesses in Grand Rapids so as long as the Defendants continue to use Letters of Intent as a basis for trespassing arrests.
Plaintiffs’ Efforts to Urge Defendants to Abandon Letters of Intent as a Substitute for Probable Cause 84. In a letter dated February 5, 2013, Plaintiffs’ counsel, the American Civil Liberties Union of Michigan and the American Civil Liberties Union (collectively “ACLU”) informed the Defendant City of Grand Rapids of its concerns regarding the GRPD’s unlawful use of Letters of Intent as a means of establishing probable cause to arrest individuals for trespassing. See Feb. 5, 2013 ACLU Letter (Exh. E). 85. In the February 5 letter, the ACLU advised City officials that the Letters of Intent could not be used as a substitute for probable cause and served no legitimate law enforcement
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purpose. As such, the ACLU letter requested that the GRPD be directed to discontinue this unconstitutional practice immediately.
86. The ACLU has engaged in further written and verbal correspondence with the City since submission of the February 5 letter, but to this point the City has not stopped using generalized Letters of Intent as a substitute for probable cause.
Defendants City of Grand Rapids’ and Kevin Belk’s Custom, Policy or Practice of Using Generalized Letters of Intent as a Substitute for Probable Cause
87. The Grand Rapids Police Department maintains a custom, policy, or practice of arresting individuals for trespassing on the publicly-accessible property of private businesses across the city, based on the fact that the owner of the business in question signed a generalized Letter of Intent, even though the businesses in question are open to the public, the alleged trespassers have never been asked to leave by the lawful owner or occupant of the property, and there is no probable cause for a trespassing arrest.
88. This custom, policy or practice is evidenced by (1) official GRPD policies and practices surrounding the Letters of Intent; (2) the actions of GRPD officials and City of Grand Rapids officials with final decision-making authority; (3) the GRPD’s policy of affirmatively training police officers to rely on a generalized Letter of Intent as creating probable cause for arrest, or alternately of failing to adequately train and supervise police officers with respect to the legal requirements for arrest, thereby causing those officers to rely on generalized Letters of Intent as a substitute for probable cause; and (4) a custom of tolerating or acquiescing to repeated violations of the Fourth Amendment rights of individuals who were arrested for trespassing based solely on a generalized Letter of Intent without any individualized suspicion of wrongdoing.
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89. First, upon information and belief, it is the official policy of the GRPD to obtain and rely on generalized Letters of Intent as a basis for making trespassing arrests.
90. The GRPD developed a standardized form “Letter of Intent.” 91. The GRPD routinely uses this standardized form “Letter of Intent.” At least 2,024 such Letters were executed between January 1, 2009 and May 15, 2012. 92. The GRPD actively solicits business owners to sign “Letters of Intent” and keeps those letters on file. At least 815 such Letters were signed by business entities between January 1, 2009 and May 15, 2012. 93. The GRPD instructs businesses to renew their Letters of Intent on an annual basis, or if/when there is a change of tenancy or ownership. 94. The GRPD maintains information about which properties in the City of Grand Rapids are covered by Letters of Intent. 95. Upon information and belief, the GRPD makes this information easily accessible to GRPD officers. 96. The use of generalized Letters of Intent as a proxy for probable cause is standard operating procedure within the GRPD, and it is common knowledge within the GRPD and City Attorney’s office that Letters of Intent are used as the basis for making trespass arrests. 97. Second, in light of the Michigan Court of Appeals’ 1997 decision in People v. Clay; the subsequent unlawful arrest of Jerry Clay in 2010, and the resulting civil lawsuit; and the Kent County district court’s 2012 decision to grant Plaintiff Weber’s motion to dismiss, Defendant Belk and Defendant City of Grand Rapids have long had actual or constructive notice that GRPD officers’ clear and persistent practice of arresting individuals for trespassing based solely on a Letter of Intent is unconstitutional.
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98. Nevertheless, Defendant Belk and City of Grand Rapids have endorsed and maintained the policy of relying on Letters of Intent as a basis for trespassing arrests.
99. In addition, the failure of Defendants Belk and the City of Grand Rapids to instruct their officers immediately to cease using or relying on generalized Letters of Intent as a substitute for probable cause, after Plaintiffs’ counsel outlined the unconstitutionality of the practice, reflects a conscious choice by Defendants to continue this unconstitutional practice.
100. Third, Defendants Belk and the City of Grand Rapids have either affirmatively trained and supervised their police officers so as to encourage the unconstitutional practice of using Letters of Intent as a substitute for probable cause, or, alternatively, have failed to meet their duty to adequately train and supervise their police officers in order to ensure that those officers act in accordance with well-established constitutional principles.
101. Upon information and belief, the GRPD trains officers how to solicit businesses to sign a Letter of Intent.
102. Upon information and belief, the GRPD trains officers how to determine whether a particular property is covered by a Letter of Intent.
103. Upon information and belief, the GRPD trains officers to note in their incident reports when making a trespass arrest based on a Letter of Intent that a Letter of Intent is on file for the property where the arrest was made.
104. Upon information and belief, the GRPD instructs its officers that the existence of a Letter of Intent constitutes probable cause for an arrest for trespass, and that officers may rely solely on a Letter of Intent when making a trespassing arrest on the site of a business that is open to the public.
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105. Alternately, Defendants Belk and the City of Grand Rapids failed to adequately train GRPD officers and failed to provide GRPD officers with sufficient guidance and oversight regarding the legal requirements for a valid arrest, including the need for and permissible contours of probable cause.
106. Upon information and belief, the City of Grand Rapids’ counsel previously indicated to Jerry Clay, the plaintiff in the prior lawsuit regarding the constitutionality of arrests under Letters of Intent, that the City would undertake training of its officers to address the issues raised in that litigation.
107. Upon information and belief, no such training has taken place. 108. Defendants Belk and the City of Grand Rapids have also failed to meet their duty to appropriately discipline their police officers for making arrests absent probable cause, in clear violation of the Fourth Amendment to the United States Constitution. 109. This failure to train, supervise and discipline had the highly predictable consequence of causing GRPD officers to rely on Letters of Intent as a substitute for probable cause when making trespass arrests, including the arrests of Plaintiffs. 110. Defendants Belk and the City of Grand Rapids failed to adequately train, supervise, and discipline GRPD officers for the challenged conduct, despite the fact that (a) the Defendants had actual or constructive notice of the challenged conduct through officers’ own routine admissions in incident reports that officers were making arrests based solely on the existence of a generalized Letter of Intent; (b) the Defendants had actual or constructive notice that the City was routinely prosecuting cases based on these incident reports despite the obvious lack of probable cause; and (c) the Defendants had actual or constructive notice of the relevant court decisions that generalized Letters of Intent do not create probable cause for a trespassing arrest.
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The failure to train, supervise and discipline under these circumstances constitutes deliberate indifference to the rights of Plaintiffs, and others who have, without warning, been arrested for trespass based on Letters of Intent.
111. Fourth, despite a clear and persistent pattern of GRPD officers relying on generalized Letters of Intent to make trespassing arrests in the absence of probable cause, and despite the fact that Defendants Belk and City of Grand Rapids had actual or constructive notice of this clear and persistent pattern, Defendants Belk and City of Grand Rapids either explicitly or tacitly approved of this unconstitutional conduct, such that their failure to act constitutes deliberate indifference to the rights of Plaintiffs, and others who have, without warning, been arrested for trespass based on Letters of Intent.
112. The custom, policy and practice of Defendants Belk and the City of Grand Rapids—including official policies, the actions of City and GRPD officials with final decision making authority, the failure to adequately train, supervise, and discipline GRPD officers for the challenged conduct, and the tolerance of repeated violations of individuals’ Fourth Amendment rights—are the moving force behind the challenged conduct and proximately caused the development and proliferation of the practice of using generalized Letters of Intent as a basis for trespassing arrests.
113. The custom, policy and practice of Defendants Belk and the City of Grand Rapids—including official policies, the actions of City and GRPD officials with final decision making authority, the failure to adequately train, supervise, and discipline GRPD officers for the challenged conduct, and the tolerance of repeated violations of individuals’ Fourth Amendment rights—were the moving force behind the unconstitutional conduct of Defendants Guerrero,
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McCarthy, Rekucki, and Leonard, and proximately caused Defendants Guerrero, McCarthy, Rekucki, and Leonard to effectuate the unlawful arrests of Plaintiffs Hightower and Weber.
Injunctive Relief 114. Although hundreds of businesses in Grand Rapids have signed Letters of Intent, there is no publicly available list identifying those businesses. 115. As a practical matter, it is difficult, if not impossible, for plaintiffs, or other members of the public, to determine whether a particular business has signed a Letter of Intent. Plaintiffs, or other members of the public, cannot know which of the many businesses in Grand Rapids are covered by a Letter of Intent. 116. Plaintiffs wish to enter and patronize businesses in Grand Rapids in the future without fear of being unlawfully stopped, arrested, prosecuted or incarcerated. As a result of Defendants’ policy, practice and/or custom of using generalized Letters of Intent as a basis for arresting individuals for criminal trespassing, Plaintiffs are unable to enter and patronize businesses in Grand Rapids without fear of being unlawfully stopped, arrested, prosecuted or incarcerated. 117. The custom, policy and practice of Defendants Belk and the City of Grand Rapids—including official policies, the actions of City and GRPD officials with final decision making authority, the failure to adequately train, supervise, and discipline GRPD officers for the challenged conduct, and the tolerance of repeated violations of individuals’ Fourth Amendment rights—has proximately caused Plaintiffs to avoid entering or patronizing Grand Rapids business establishments for fear of being unlawfully stopped, arrested, and jailed in violation of their Fourth Amendment rights.
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118. Plaintiffs’ harm in being unable to patronize Grand Rapids business establishments without fear of being unlawfully stopped, arrested and jailed is ongoing, and cannot be alleviated except by injunctive relief. If the injunction requested in this case is granted, Plaintiffs will again patronize Grand Rapids businesses. There is no adequate remedy at law.
CAUSE OF ACTION VIOLATION OF THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES BY THE GOVERNMENT
(All Plaintiffs against All Defendants) 119. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 120. The Fourth Amendment to the United States Constitution protects the people from unreasonable searches and seizures by the government. As such, it prohibits police from subjecting people to arrest in the absence of probable cause to believe the individual in question is engaged in wrongdoing. 121. Grand Rapids police officers’ practice of arresting individuals for trespassing in the absence of probable cause, and based solely on the fact that the owner of the property in question had signed a generalized Letter of Intent, violates the clearly established Fourth Amendment prohibition against unreasonable searches and seizures. 122. Defendants, by arresting, jailing and prosecuting the Plaintiffs for trespassing in the absence of probable cause and based solely on the fact that the owner of the property in question had signed a generalized Letter of Intent, violated Plaintiffs’ clearly established Fourth Amendment right against unreasonable searches and seizures.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court:
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a.

Enter a judgment declaring that Defendants’ reliance on generalized Letters of

Intent as the sole justification for making trespass arrests violates the Fourth

Amendment to the United States Constitution;

b.

Enter a judgment declaring that Defendants Guerrero and McCarthy violated

Plaintiff Weber’s clearly established constitutional rights by arresting him for

criminal trespassing in the absence of probable cause;

c.

Enter a judgment declaring that Defendants Rekucki and Leonard violated Plaintiff

Hightower’s clearly established constitutional rights by arresting him for criminal

trespassing in the absence of probable cause;

d.

Issue a permanent injunction restraining Defendants, their employees, agents, and

successors from continuing to use generalized Letters of Intent as a basis for

making individual trespass arrests;

e.

Award damages to the Plaintiffs to compensate them for the indignity of being

subjected to an unlawful arrest; time spent in jail as a result of the unlawful arrest;

costs incurred as a result of the unlawful arrest; pain, suffering and injury sustained

as a result of the unlawful arrest and subsequent incarceration; and Plaintiffs’

ongoing fear of being unlawfully arrested and jailed in the future when frequenting

Grand Rapids business establishments;

f.

Award costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and

g.

Grant or award such other relief that this Court deems just and proper.

21

Case 1:13-cv-00469-PLM Doc #5 Filed 05/14/13 Page 22 of 24 Page ID#115

Respectfully submitted,
/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union
Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 maukerman@aclumich.org
/s Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313-578-6824 msteinberg@aclumich.org

Attorneys for Plaintiffs

Dated:

May 14, 2013

s/Jason D. Williamson* Jason D. Williamson (NY 4645529) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 284-7340 jwilliamson@aclu.org
*Admission pending to U.S. District Court for the Western District of Michigan
/s Bryan J. Waldman Bryan J. Waldman (P 46864) ACLU Cooperating Attorney Sinas, Dramis, Brake, Boughton & McIntyre, P.C. 3380 Pine Tree Road Lansing, MI 48911 517-394-7500 bryanwaldman@sinasdramis.com

22

Case 1:13-cv-00469-PLM Doc #5 Filed 05/14/13 Page 23 of 24 Page ID#116 INDEX OF EXHIBITS A. Blank Letter of Intent to Prosecute Trespassers B. Affidavit of Karamjit Singh C. City of Grand Rapids v. Weber, Case No. 12-OM-1530, Transcript, Hearing on Motion to
Dismiss (Oct. 3, 2012) D. City of Grand Rapids v. Weber, Case No. 12-OM-1530, Opinion (Oct. 24, 2012) E. Feb. 5, 2013 ACLU Letter
23

Case 1:13-cv-00469-PLM Doc #5 Filed 05/14/13 Page 24 of 24 Page ID#117

JURY DEMAND Plaintiffs demand a jury on all issues so triable.

Respectfully submitted,

/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union
Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 maukerman@aclumich.org
/s Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313-578-6824 msteinberg@aclumich.org

/s/Jason D. Williamson* Jason D. Williamson (NY 4645529) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 284-7340 jwilliamson@aclu.org
*Admission pending to U.S. District Court for the Western District of Michigan
/s Bryan J. Waldman Bryan J. Waldman (P 46864) ACLU Cooperating Attorney Sinas, Dramis, Brake, Boughton & McIntyre, P.C. 3380 Pine Tree Road Lansing, MI 48911 517-394-7500 bryanwaldman@sinasdramis.com

Attorneys for Plaintiffs

Dated:

May 14, 2013

24

 
 Case 1:13-cv-00469-PLM ECF No. 200 filed 06/21/17 PageID.4241 Page 1 of 21

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TYRONE HIGHTOWER, KIRK MCCONER,

)

PERCY BROWN and JACOB MANYONG,

)

Plaintiffs,

)

)

-v-

)

)

CITY OF GRAND RAPIDS, KEVIN BELK,

)

GREGORY REKUCKI, ANTHONY LEONARD,

)

and THOMAS NEIMEYER,

)

Defendant.

)

)

No. 1:13-cv-469 Honorable Paul L. Maloney

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Between September 2011 and March 2012, Plaintiffs were each arrested and issued

citations for trespassing on the property of a commercial establishment. Plaintiffs filed this

lawsuit, alleging the officers lacked probable cause to make each arrest. As part of their

claims, Plaintiffs challenge the use of No Trespass Letters (NTLs) by the police, forms

submitted by property owners or tenants to the Grand Rapids Police Department (GRPD).

In addition to damages for constitutional violations, Plaintiffs seek declaratory and injunctive

relief concerning the use of NTLs.

In 2013, the City of Grand Rapids changed the content of the blank forms, the NTLs

that businesses can fill out and submit to the police. In this motion, Defendants argue

Plaintiffs lack standing to seek any declaratory or injunctive relief regarding the current

NTLs. (ECF Nos. 44 and 45.) Defendants also argue that Plaintiffs’ claims for declaratory

and injunctive relief are not ripe. The motion has been fully briefed. (ECF No. 69 Response

and ECF No. 75 Reply). A hearing on the motion occurred on May 25, 2017.

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In their response to this motion to dismiss and at the hearing, Plaintiffs attempt to narrow and focus the exact nature of their constitutional claims. According to Plaintiffs, the lawsuit is about the GRPD’s policy of using NTLs as a basis for accusing individuals of trespassing on the property of a business, when no complaint has been made about that particular individual. According to Plaintiffs, this policy, what Plaintiffs’ describe as the use of NTLs as a substitute for individualized probable cause, is vague and unconstitutional. Plaintiffs do not challenge the trespass ordinance as being unconstitutional.
Because Plaintiffs have not alleged sufficient facts to present a threat of an imminent, as opposed to a speculative, injury, the Court agrees that Plaintiffs lack standing to seek declaratory and injunctive relief affecting the current NTLs. And, because the content of the current NTLs is significantly different than the content of the NTLs used at the time of the arrests, the Court agrees that Plaintiffs’ claims for declaratory and injunctive relief are not ripe. Therefore, Defendants’ motion will be granted.
I. The controlling pleading is Plaintiffs’ second amended complaint.1 (ECF No. 36.) Through this motion, Defendants generally argue that Plaintiffs lack standing. The Sixth Circuit has held that standing doctrine, specifically the constitutional requirement for a case or controversy, is a jurisdictional limitation on federal courts. See Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014); e.g., Hyman v. City of Louisville, 53 F. App’x 740, 743 (6th Cir.
1 By stipulation of the parties, all claims brought by Gilbert Weber have been dismissed. (ECF No. 124 PageID.1067–68.) Defendants John Guerrero and Thomas McCarthy were dismissed because only the claims against them arose from Weber’s arrest. Also, the Court granted a motion to substitute a defendant. David Rahinsky, the current Chief of Police, has been substituted as a defendant in place of Kevin Belk, the former Chief of Police. (ECF No. 125 PageID.1069.)
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2002) (“Standing, a jurisdictional element drawn from Article III constitutional requirements as well as prudential considerations, is not waivable by the parties and must be present in every case.”). The Sixth Circuit has also held that standing, as a challenge to the court’s subject-matter jurisdiction, is properly raised through a motion under Rule 12(b)(1). Lyshe v. Levy, –F.3d–, 2017 WL 1404182, at *2 (6th Cir. Apr. 20, 2017). “’The party invoking federal jurisdiction bears the burden of establishing’ standing” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (quoting Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013)).
Generally, the support that a plaintiff must provide to establish standing will depend on the stage of the litigation when standing is challenged. See Susan B. Anthony List, 134 S. Ct. at 2342 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). When considering a motion to dismiss for lack of standing, federal courts must accept as true all material allegations in the complaint. Parsons v. United States Dep’t of Justice, 801 F.3d 701, 710 (6th Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). A motion to dismiss under Rule 12(b)(1) may challenge the sufficiency of the pleadings (a facial challenge) or the factual existence of subject-matter jurisdiction (a factual challenge). Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). In a facial challenge, the court considers the sufficiency of the pleadings and accepts as true all the allegations in the complaint, similar to the standard for a Rule 12(b)(6) motion. Ohio Nat=l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Cartwright, 751 F.3d at 759. When the defendant challenges subject-matter jurisdiction through a facial attack, the court considers only the factual allegations in the complaint. See Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir.
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2003); accord Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (“In a facial attack, ‘the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6) safeguards.’”) (citation omitted); Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (“In reviewing a facial attack, the court must consider only the allegations of the complaint and documents reference therein and attached thereto, in the light most favorable to the plaintiff.”). In their reply brief, Defendants state that their motion asserts a facial attack on the complaint. (ECF No. 75 Reply Br. at 8 PageID.976.) Because this motion was filed under Rule 12(b), and because Defendants have clarified that the motion is a facial attack, the Court considers only the pleadings and will not consider evidence outside the pleadings.2
II. The City of Grand Rapids has enacted ordinances addressing disorderly conduct, including property offenses, which are found in Title IX, Chapter 152, Article 1 of the City Code. Included in that ordinance is a general prohibition on trespassing.3 The ordinance provides No person shall: (1) Trespass upon the premises of another or unlawfully remain upon the premises of another to the annoyance or disturbance of the lawful occupants.
2 Plaintiffs have attached twenty-four exhibits to their response. Where those exhibits are not referenced in the complaint, the Court has not considered that evidence. See Fed. R. Civ. P. 12(d). 3 The City has also enacted an ordinance prohibiting loitering in any “premises owned by another person after having been requested to leave by the lawful owner or occupant or a representative of the owner or occupant.” Grand Rapids, MI. Code § 9.136(5).
4

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Grand Rapids, MI. Code § 9.133(1). The City’s ordinances do not separately define the term “trespass.” See Grand Rapids, MI. Code § 9.107. Where terms are not defined in any part of the Grand Rapids City Code, “such terms shall have the ordinarily accepted meanings consistent with the text of this Chapter.” Id.
For more than twenty years, the Grand Rapids Police Department has made available, in some form, what are referred to by the parties as No Trespass Letters. The NTLs are standardized forms that must be completed by participating property owners or occupants and returned to the police. (Compl. ¶ 33 PageID.527; ECF No. 36-2 NTL PageID.564– 66.) NTLs must be submitted each year, or when a tenant or ownership of the property changes. (Compl. ¶ 41 PageID.528; NTL PageID.566.) Between January 1, 2009, and May 15, 2012, more than 2000 NTLs were returned to the GRPD. (Compl. ¶ 45 PageID.528.) Of those, over 800 were returned by a business entity.4 (Id.) Many of the businesses are open to the public and include retail stores, supermarkets, gas stations, and even restaurants. (Id. ¶ 46 PageID.528.)
Over the years, different versions of the NTLs have been used. (Compl. ¶ 34 PageID.527.) When Plaintiffs were arrested, the NTLs were formatted as a letter to the Detective Unit in the Grand Rapids Police Department. (NTL PageID.564.) The letter stated that it “serves notice to your office that the occupant (s) and/or owners of this address will prosecute all trespassers.” (Id.) The form contained sections which needed to be filled
4 Because the NTLs must be refiled each year, it is likely that the 800 NTLs submitted during this three-and-a-half year time period included renewal letters. Without minimizing the significance of the number of businesses that submitted NTLs, the Court does not infer that more than 800 businesses in the Grand Rapids area have filed NTLs with the police department.
5

Case 1:13-cv-00469-PLM ECF No. 200 filed 06/21/17 PageID.4246 Page 6 of 21
with information. The form included a section where the business or tenant was identified and a section where the owner was identified. (Id.) Instructions were included on the third page. (Id. PageID.566.) The instructions provided that “the attached letter is intended to assist in keeping trespassers off your property.” (Id.)
Sometime after each of Plaintiffs’ arrests, the NTL was revised. (Compl. ¶ 69 PageID.532.) The GRPD now uses the revised NTLs. (Id. ¶ 70 PageID.532.) In addition to asking for information about the occupant of the property, the form now asks the filer to identify the problems that unauthorized persons are causing on or to the property. (ECF No. 37-3 Revised NTL PageID.626.) The revised form includes the following statement:
As OWNER /AGENT / RESIDENT / TENTANT of the property located above, I request that the officers of the Grand Rapids Police Department assist in dealing with trespassers at this location for the next twelve-month period, Beginning on: ______________ and continuing through: _______________. (Id.) The revised form also includes an authorization for the police officers to act on behalf of the filer. I authorize the GRPD to ask unauthorized persons to leave the property. If they refuse to do so, or return thereafter, I authorize the GRPD to enforce any violations of the law on the property. My agent or I will cooperate in the prosecution of such persons for these offenses. I will support prosecution and will appear in court to testify if necessary. (Id.) In addition to revising the NTL, the GRPD now encourages business owners to post a “Conditions of Entry” sign. (Compl. ¶ 79 PageID.533.) The sign states that the property is reserved for use by patrons and customers, and that there is no entry or remaining on the property for purposes unrelated to the business. (Id. ¶ 80 PageID.533; ECF No. 37-4 Sign
6

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PageID.628.) The sign also states that GRPD officers are authorized by the owner to enforce violations of the City Code, which includes arrest for trespassing. (Sign PageID.628.)
In the complaint, each plaintiff alleges facts related to his conduct since his arrest. Plaintiff Tyrone Hightower is a resident of Kalamazoo, Michigan. (Compl. ¶ 17 PageID. 524.) Since his arrest, and because he fears being arrested again, Hightower avoids visiting Grand Rapids. (Id. ¶ 121 PageID.540.) Although he would like to patronize businesses in Grand Rapids, Hightower will not do so as long as NTLs are used as a basis for arrests for trespassing. (Id. ¶ 123 PageID.540.)
Plaintiff Kirk McConer is a resident of Grand Rapids, Michigan. (Compl. ¶ 18 PageID.525.) Since his arrest, he avoids shopping at the party store where he was arrested and also avoids using the parking lot near that store. (Id. ¶ 139 PageID.543.) McConer is fearful of being arrested again as long as NTLs are used as a basis for arrests for trespassing. (Id. ¶ 139-40 PageID.543.)
Plaintiff Percy Brown is a resident of Grand Rapids, Michigan. (Compl. ¶ 19 PageID.525.) Brown continues to patronize the business where he was arrested, as well as the new business at the same location. (Id. ¶ 151 PageID.544.) However, Brown will not do anything that requires him to spend time in the parking lot of the business, and intends to avoid that conduct so long as NTLs are used as a basis for arrests for trespassing. (Id.) Brown fears being arrested again. (Id. ¶ 151–152 PageID.544–45.)
Plaintiff Jacob Manyong is a resident of Grand Rapids, Michigan. (Compl. ¶ 20 PageID.525.) As long as NTLs are used as a basis for arrests for trespassing, Manyong is
7

Case 1:13-cv-00469-PLM ECF No. 200 filed 06/21/17 PageID.4248 Page 8 of 21
fearful of being prosecuted. (Id. ¶ 169 PageID.547.) Whenever possible, Manyong avoids areas where he thinks he might be arrested for trespassing. (Id.)
Plaintiffs also allege facts about the GRPD’s use of NTLs. The GRPD maintains a database of NTLs, which is accessible to its officers. (Compl. ¶ 181 PageID.549.) GRPD trains officers to determine whether a particular property is covered by an NTL. (Id. ¶ 188 PageID.550.) GRPD also trains officers that an NTL may be considered when determining whether the officer has probable cause to arrest an individual for trespassing. (Id. ¶ 190 PageID.551.) Defendants have produced 2,693 incident reports related to arrests, citations, and stops for trespass, all of which occurred in Grand Rapids between January 1, 2009, and August 21, 2013. (Id. ¶ 83 PageID.534.) In 2012, during 270 separate incidents, police officers in Grand Rapids arrested or cited 348 people for trespassing on property where the business had filed an NTL with the GRPD.5 (Id. ¶¶ 84–85 PageID.534–35.)
III. To having standing to sue in federal court, a plaintiff must demonstrate (1) he or she has suffered an injury in fact, (2) a causal connection between the injury and the defendant’s conduct, and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision. Kiser, 765 F.3d at 607 (citing Lujan, 504 U.S. at 560–61). These three elements have been called the “irreducible constitutional minimum” for standing, and the plaintiff, as party invoking federal jurisdiction, bears the burden of establishing all three
5 From these two assertions, the Court infers that not every incident report that was filed necessarily involved either an arrest or a citation for trespassing, or both. Some, possibly even many, incident reports related to trespassing involved only stops, but not arrests or citations.
8

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elements. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan, 504 U.S. at 820).
While a plaintiff might have standing to seek damages or redress for past injuries, that plaintiff must demonstrate separate standing when seeking declaratory or injunctive relief. Barber v. Miller, 809 F.3d 840, 849 (6th Cir. 2015); see Summer v. Earth Island Inst., 555 U.S. 488, 493 (2009) (holding that the plaintiff “bears the burden of showing that he has standing for each type of relief sought.”). For pre-enforcement challenges, the standing issue “often turns on whether [the plaintiff] can demonstrate an ‘injury in fact’ before the state has actually commenced an enforcement proceeding against him.” McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016) (quoting Kiser, 765 F.3d at 607). Previous exposure to illegal conduct, by itself and without a showing of continuing and present adverse effects, does not establish a case or controversy for the purpose of seeking declaratory or injunctive relief. Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (quoting Lyons, 461 U.S. at 102).
For declaratory or injunctive relief in pre-enforcement challenges, allegations of a future injury may establish standing for seeking prospective relief. To have standing for declaratory or injunctive relief for a future injury, the plaintiff must establish that the threatened injury is “certainly impending” or that there exists a “substantial risk that the harm will occur.” McKay, 823 F.3d at 867; Barber, 809 F.3d at 849. When the plaintiff is under the threat of prosecution for violating criminal statute, “an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Susan B. Anthony List, 134 S. Ct. at 2342. A plaintiff can satisfy the injury-in-fact element for standing in a pre-
9

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enforcement lawsuit by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but prescribed by a statute, and there exists a credible threat of prosecution thereunder.” McKay, 823 F.3d at 867 (quoting Susan B. Anthony List, 134 S. Ct. at 2342 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979))).
The United States Supreme Court has considered standing in pre-enforcement challenges on multiple occasions. In O’Shea v. Littleton, 414 U.S. 488 (1974), the plaintiffs, white and black civil rights activists, alleged that the police and the judiciary for the city and county engaged in discriminatory practices during the administration of the criminal justice system in violation of the First, Sixth, Eighth, Thirteenth, and Fourteenth Amendments. Id. at 490. When the lawsuit reached the Supreme Court, only the claims against the county magistrate and the county judge were at issue. Id. at 491. The Court considered three claims. First, the defendants set bonds in criminal cases according to an unofficial schedule and without consideration of the circumstances of the case or the individual charged. Second, the defendants imposed higher and harsher sentences on black defendants than on white defendants. Third, when the charges carried fines and possible jail sentence which could not be paid by the accused, the accused had to pay for a trial by jury. Important to the manner in which standing was resolved, the plaintiffs did not seek damages against the county magistrate and judge. Id. at 492. Also, the complaint did not allege any specific instances involving the named plaintiffs in the claims against the county magistrate and the county judge. Id.
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The Court held that the plaintiffs lacked standing to seek prospective relief against the county magistrate and county judge. O’Shea, 414 U.S. at 493. The complaint did not identify any of the named plaintiffs as “having suffered any injury in the manner specified.” Id. at 495. When the complaint was filed, none of the plaintiffs were serving an allegedly illegal sentence or were awaiting trial before the county defendants. Id. The Court also found that the allegations of past wrongs did not provide sufficient evidence of a future injury. Id. at 496. The Court noted that the plaintiffs did not allege that any criminal statute was unconstitutional so that they might be improperly charged with violating a criminal law. Id. The Court reasoned that “[w]e assume that respondents will conduct their activities within the law and so avoid prosecution and conviction[.]” Id. at 497. Therefore, the Court concluded, “attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture.” Id.
In Steffel v. Thompson, 415 U.S 452 (1974), the plaintiff was handing out leaflets at a shopping center. He was asked to leave by employees, but declined to do so. The police were called and they informed the plaintiff that if he did not leave, he would be arrested. He left. Two days later, the same events occurred. The plaintiff left, but his companion did not and was arrested for criminal trespass. The plaintiff sought a declaratory judgment that the state criminal statute was unconstitutional. The plaintiff stated in his complaint that he wanted to return to the shopping center to distribute leaflets, but had not done so because of his fear that he would be arrested. Id. at 456. The parties stipulated that, if the plaintiff returned and again refused, upon request, to stop handing out leaflets, he would be arrested.
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Id. The Supreme Court held that the facts presented an actual controversy, as required by Article III and the Federal Declaratory Judgment Act. Id. at 459.
In Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979), the plaintiffs challenged five provisions of Arizona’s farm labor statute. The Court held generally that a “plaintiff who challenges a statute must demonstrate a realistic danger of sustaining direct injury as a result of the statute’s operation or enforcement[,]” but the plaintiff “does not have to await consummation of the threatened injury to obtain prospective relief. If the injury is certain impending, that is enough.” Id. at 298 (citations omitted). “When plaintiffs ‘do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,’ they do not allege a dispute susceptible to resolution by a federal court.” Id. at 298 (citation omitted).
The Court found the plaintiff had standing to challenge portions of the statute. The Arizona statute made it an unfair labor practice to induce or encourage the consumer of an agricultural product from purchasing or using the product by dishonest, untruthful or deceptive activity. The United Farm Workers alleged that it has in the past and would in the future engage in boycott activities. Babbitt, 442 U.S. at 301. Although it did not intend to propagate untruths, erroneous statements are inevitable in a free debate. Id. Citing Steffel, the Court held that where the fear of criminal prosecution is not imaginary, a plaintiff need not expose himself to prosecution to challenge the statute. Id. at 302. And, Arizona had not disavowed enforcing the criminal penalty provision. Id. Because the statute was vague, and because the Union desired and intended to engage in publicity campaigns, the Court found the challenge to the statute was based on a case or controversy. Id. at 303.
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In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court held that the plaintiff had not alleged facts to establish a case or controversy sufficient to have standing for injunctive relief. The plaintiff had been subjected to a chokehold by the police during a routine traffic stop. He alleged that officers were authorized to use the chokeholds, and routinely did so, even in situations where there was no threat of deadly force. Fifteen people had died when the police employed the chokehold. Before the Court heard the case, the City had imposed a six-month moratorium on the use of the chokehold, except under circumstances where deadly force is authorized. The Court reasoned that Lyons could not establish a real and immediate threat that he would be stopped for a traffic violation by an officer who would use the chokehold without provocation. Id. at 105. The Court explained that, to establish a case or controversy, Lyons would have to establish (1) that all police officers in Los Angeles always choke any citizen they happen to encounter or (2) that the City ordered and authorized police officers to act in such a manner. Id. at 106.
Finally, Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014), involved an Ohio statute which made it a crime for a person to make a false statement concerning the voting record for a candidate or public official. 134 S. Ct. at 2338. Steve Driehaus filed a complaint with the state election commission against the Susan B. Anthony List (SBA), alleging violations of this statute. SBA then filed suit in federal district court seeking declaratory and injunctive relief, arguing that the statute violated the First and Fourteenth Amendments. The Court found that SBA’s allegations met the injury-in-fact element for standing. Id. at 2347. The Court concluded that SBA had alleged an intention to engage in the same course of conduct during future election cycles, which arguably affected a constitutional right. Id. at
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2343–44. The Court also concluded that the intended future conduct arguably fell within the matters proscribed by the state statute. Id. at 2344. Finally, the Court found that the threat of future enforcement of the statute was substantial. Id. at 2345.
Plaintiffs have not alleged sufficient facts to establish the injury-in-fact element for standing to seek declaratory and injunctive relief. None of the plaintiffs allege an intent to engage in conduct that arguably falls under the trespass statute. Plaintiff Hightower does not live in Grand Rapids and has alleged that he has avoided Grand Rapids since his arrest. (Compl. ¶ 121 PageID.540.) He further alleges that he intends to avoid patronizing local businesses in Grand Rapids as long as the defendants use NTLs. (Id. ¶ 123 PageI.540.) If Hightower avoids Grand Rapids, and does not patronize any businesses there, he does not face any threat of future prosecution for trespassing under the Grand Rapids ordinance.
The other three named plaintiffs do reside in Grand Rapids, but all allege that they will avoid conduct that would put them at risk of being arrested for trespassing. Brown alleges that he will no longer “engage in any actions that might require him to spend any time in the parking lot” of the business where he was arrested. (Compl. ¶ 151.) Brown further alleges that he “intends to avoid taking such actions” while the defendants use NTLs. (Id.) McConer avoids shopping at the store where he was arrested, avoids using the parking lot where he was arrested, and also avoids patronizing other businesses in the area. (Id. ¶ 139.) Manyong alleges that he now avoids areas where he thinks that he might be arrested for trespassing, including the area where he was arrested. (Id. ¶ 169.) He is also considering moving away from Michigan altogether. (Id.)
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Even if their intent is not relevant, Plaintiffs have not alleged facts to establish that they suffer a present and on-going harm. To avoid the consideration of intent, Plaintiffs argue that they cannot engage in ordinary and every-day activities without risking arrest. But, this alleged injury is too speculative. The risk of being arrested relies on a chain of events, all of which must be present for the injury to manifest. It is likely that McConer, Brown and Manyong will continue to patronize businesses in Grand Rapids. However, it is speculation and conjecture whether any of the businesses have NTLs on file with GRPD. It is speculation and conjecture that a police officer would be present and observe McConer, Brown or Manyong on the property of one of those businesses with an NTL on file. It is speculation and conjecture whether the officer would perceive the conduct of Plaintiffs as trespassing. It is speculation and conjecture that a police officer would then act on his or her suspicion. And, all of those events are necessary for the harm, an unlawful arrest or citation for trespassing, to occur.
Plaintiffs contend their inability to know which businesses have filed NTLs, and the lack of notice in the NTLs about what constitutes a trespass, results in a chilling effect on their freedom of movement. The Sixth Circuit has stated that “[i]t is well-settled that facial constitutional challenges relying on the overbreadth doctrine, and the resultant chilling effect such overbreadth has on speech, are limited to the First Amendment sphere.” Grendell, 252 F.3d at 834. Like Grendell, “no First Amendment activity is impugned in this case.” Id. For this reason, the facts and the holding in Steffel are distinguishable as that case involved a First Amendment challenge. And, even in the First Amendment context, fear of prosecution
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cannot be imaginary or speculative. Grendell, 252 F.3d at 834 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
Where plaintiffs challenge a statute that does not chill First Amendment rights, the requirements for standing are “[m]ore stringent.” Nat’l Rifle Ass’n of America v. Magaw, 132 F.3d 272, 285 (6th Cir. 1997). For non-First Amendment situations, a plaintiff ordinarily must allege some on-going or existing harm, like an economic injury arising from compliance measures. Id. (discussing a ripeness challenge). Here, Plaintiffs have not alleged any injury that results from their refraining from activities that might subject them to arrest. See American Civil Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 656 (6th Cir. 2007) (Batchelder, J.).6
Based on the allegations in the pleadings, Plaintiffs are more like the plaintiffs in O’Shea and Lyons, than they are like the plaintiffs in Babbitt and Susan B. Anthony List. Like the plaintiffs in O’Shea/Lyons, here Plaintiffs fear a set of events which may or may not occur. Plaintiffs do not know if or when they might be arrested for trespassing. And, like the plaintiffs on O’Shea/Lyons, Plaintiffs are not challenging the constitutionality of a statute or law. Unlike the plaintiffs in Babbitt/Susan B. Anthony List, Plaintiffs have not announced an intention to engage in conduct proscribed by a criminal statute that would likely result in their prosecution.
6 Judge Batchelder distinguishes between harms that cause one to refrain from an activity and harms that result from refraining from an activity. Judge Gibbons sided with Judge Batchelder, but concurred in the judgment only. Id. at 688. Judge Gilman dissented.
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Plaintiffs’ reference to County of Riverside v. McLaughlin, 500 U.S. 44 (1991) is not persuasive. In McLaughlin, the plaintiff alleged that the County’s policy of combining probable cause determinations with its arraignment procedures violated the Fourth Amendment’s requirement of a prompt probable cause determination following a warrantless arrest. Id. at 47. A state statute required arraignments to be held within two days, excluding weekends and holidays. As a result, some individuals arrested without a warrant toward the end of the week might not receive a probable cause hearing for as long as four days, and around some holidays, the delay might be as long as a week. Id. The plaintiffs sought both declaratory and injunctive relief, individually and as class representatives. Id. at 49. The Court rejected the County’s argument that the named plaintiffs lacked standing. Id. at 51. When the second amended complaint was filed, three of the plaintiffs had been arrested without a warrant, were being held in custody, and had not received a probable cause determination, “prompt or otherwise.” Id. The Court found that “[p]lainly, plaintiffs’ injury was at that moment capable of being redressed through injunctive relief.” Id. And, because the district court ultimately granted class certification, the merits of the controversy were preserved. Id. Plaintiffs’ situation here is easily distinguished from the plaintiffs in McLaughlin. Here, none of Plaintiffs have pending charges for trespassing.
This Court finds White v. United States, 601 F.3d 545 (6th Cir. 2010) persuasive. In White, the plaintiffs sought a declaratory judgment that provisions of a federal statute, the Animal Welfare Act (AWA) were unconstitutional. Id. at 548. The disputed provisions of the AWA generally prohibited animal fighting ventures, including the buying, selling, transporting, delivering or receiving any animal for the purpose of having that animal
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participate in a fighting venture. Four of the named plaintiffs sold chickens, and the other named plaintiff was a gamefowl judge who promoted gamefowl shows. Id. at 549–50. In addition to economic injuries, the plaintiffs alleged constitutional violations. Each constitutional violation relied on the same fear of false prosecution. Plaintiffs were concerned that, if they traveled with their chickens, they might be accused of violating the AWA. First, the plaintiffs alleged violations of their liberty interests in travel under the Fifth Amendment. The plaintiffs alleged that their “right to travel with chickens intended for nonfighting purposes” was chilled. Id. at 550. Second, plaintiffs alleged their First Amendment right of association was impinged because they could not travel to events and associate with like-minded people. Id. Plaintiffs also alleged the AWA inflicted a punishment tantamount to a bill of attainder and also that the AWA violated principles of federalism protected by the Ninth, Tenth and Eleventh Amendments. Id.
The Sixth Circuit held that the plaintiffs lacked standing. The court found that the fear of false prosecution and the resulting chilling effect was too speculative to confer standing. White, 601 F.3d at 553. First, the court explained that the plaintiffs’ intent to engage in prohibited conduct was not relevant to their allegation that they risked false prosecution for engaging in legal conduct. Id. The court found the situation similar to that in O’Shea. Id. Second, the court concluded that the risk of false prosecution was too attenuated to be a concrete injury. Id. at 553–54. The potential for a false prosecution relied on a chain of events, each of which must occur before the injury could manifest. Id. at 554. Third, the court held that injuries from an alleged chilling effect were limited to the First
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Amendment context, and did not extend to the right to travel, the right of association, or the right to be free from bills of attainder. Id.
Plaintiffs here and in White all fear being falsely arrested because their legal conduct might be misperceived by law enforcement officers. It is no more illegal for Plaintiffs to casually saunter down the sidewalk or pause in a parking lot than it was for the purveyors of poultry to transport their wares across state lines. And, while all fear being falsely accused of violating the law, the risk of that injury manifesting is mere speculation and conjecture.
IV. Defendants also argue that any claim for relief, including declaratory and injunctive relief related to the revised NTL and the sign, are not ripe. All of the Plaintiffs were arrested before the NTL was revised. (Compl. ¶ 71. PageID.532.) None of the Plaintiffs have been arrested or cited for trespassing since the GRPD began using the revised NTLs. The ripeness doctrine prevents courts from becoming entangled in abstract disagreements when they adjudicate controversies that have not yet matured. Magaw, 132 F.3d at 284 (citing Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985)). Ripeness is an issue when the case or controversy hinges on future events that may or may not occur. Id. For pre-enforcement challenges, a case or controversy is ripe “’only if the probability of the future event occurring is substantial and of sufficient immediacy and reality to warrant issuance of a declaratory judgment.’” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998) (citation omitted). Courts should consider three factors when determining whether pre-enforcement challenges are ripe: (1) whether the legal analysis would benefit from having a concrete factual context, (2) the extent to which
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the enforcement authority’s legal position is subject to change before enforcement, and (3) the hardship on the parties by withholding consideration of the issue. Ammex, Inc. v. Cox, 351 F.3d 697, 706 (6th Cir. 2003). Ripeness concerns “have particular resonance in the context of Fourth Amendment disputes.” Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008). The Fourth Amendment imposes a reasonableness standard, which requires courts to consider the totality of the circumstances on a case-by-case basis. Id. Because of the context specific nature of Fourth Amendment reasonableness, challenges are typically made post-enforcement, not pre-enforcement. Id.
Defendants have established that any claim for relief connected to the revised NTLs is not ripe. There are important differences between the NTLs on which the officers relied when arresting Plaintiffs and the NTLs the GRPD now uses.7 The revised NTLs require officers to order individuals to leave the property and permit officers to arrest individuals for trespassing only after the individual refuses the order or later returns. (Revised NTL PageID.626.) The GRPD also now encourage business owners to post a Conditions of Entry sign. (Comp. ¶ 79.) The new signs identify the conditions of entry and also warn individuals that violations may result in arrest for trespassing. (Sign PageID.PageID.628.) The Court infers that the “new” (Compl. ¶ 79) signs were not in use when Plaintiffs were arrested. The Court would benefit from have a more concrete factual context to consider any effects the revisions to the NTL may have.
7 There exists evidence in the record, depositions of officers, supporting the conclusion that officers do not think they need to order people to leave before that individual can be arrested for trespassing. Because this is a pleadings-based motion, the Court has not considered that evidence. See Fed. R. Civ. P. 12(d).
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V. Defendants are entitled to dismissal of Plaintiffs’ requests for declaratory and injunctive relief. Plaintiffs’ allegations are not sufficient to establish the injury-in-fact element required for standing in this non-First Amendment pre-enforcement challenge to government action. Plaintiffs have not alleged facts to support a present and on-going harm or a substantial risk of a future harm. The risk to Plaintiffs of arrest for trespassing is merely speculative. The fear of false prosecution for trespassing is not sufficient to establish a present and on-going injury because this is not a First Amendment challenge. And, Plaintiffs have not alleged an economic or other injury as the result of their inaction. In addition, the changes to the NTLs render the requests for prospective relief unripe. The Court would benefit from factual development for context before considering what effect the revised NTLs have on arrests for trespass under the Ordinance. While the general and abstract policy might remain the same, the changes to the letters appear to impose new practices that would alleviate many of the concerns that Plaintiffs raise.

ORDER

For the reasons provided in the accompanying Opinion, Defendants’ motion to

dismiss (ECF No. 44) is GRANTED.

IT IS SO ORDERED.

Date: June 21, 2017

/s/ Paul L. Maloney Paul L. Maloney United States District Judge

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 Case 1:13-cv-00469-PLM ECF No. 203 filed 10/17/18 PageID.4267 Page 1 of 43

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TYRONE HIGHTOWER, et al., Plaintiffs,
-v-
CITY OF GRAND RAPIDS, et al., Defendants.

) ) ) No. 1:13-cv-469 ) ) Honorable Paul L. Maloney ) ) )

OPINION

Following a city trespassing ordinance, police officers in the City of Grand Rapids

have arrested individuals who are in the parking lot of an area business when an officer

concluded that the individual was not on the property for the purpose of patronizing the

business. In March 2017, a panel of the Michigan Court of Appeals rejected the City's

interpretation of the ordinance that would authorize such an arrest. Today, this Court

reaches the same conclusion.

The City of Grand Rapids enacted and enforces a trespass ordinance. The City

solicits, from area businesses, what the parties refer to as "No Trespass Letters" or NTLs. By

completing the blank form and returning the form to the Grand Rapids Police Department,

business owners indicate their intent to prosecute trespassers. Plaintiffs are four citizens that

were arrested without a warrant and were issued a citation for trespassing. In all four

instances, no one from the business had complained about the specific individual before he

was arrested. And, in all four instances, the officer who issued the citation relied on an NTL

to conclude that the owner would be willing to prosecute the suspect for trespassing. In one

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instance, the individual who received the citation had recently patronized the business on whose property he was allegedly trespassing. In another instance, the individual who was cited for trespassing merely drove across the business's portion of a parking lot shared with the City.
Plaintiffs complain that their arrests violated the Fourth Amendment and the City's policy is unconstitutional. In the second amended complaint (ECF No. 36), the controlling pleading, Plaintiffs allege two counts: (1) violation of the Fourth Amendment and (2) violation of the void-for-vagueness doctrine of the Due Process Clause of the Fourteenth Amendment. Plaintiffs seek a declaratory judgment, injunctive relief, and judgments for damages against the arresting officers and against the City.
The parties have filed cross motions for summary judgment. Plaintiffs collectively filed a single motion for summary judgment. (ECF No. 149.) Defendants filed five separate motions for summary judgment (ECF Nos. 161-65), and a single brief in support (ECF No. 166). The Court has had the benefit of oral argument.
As part of the lawsuit, the Court must determine what the City's ordinance prohibits. The parties do not agree about what must occur before an individual becomes a trespasser or a suspected trespasser. Does an individual violate the ordinance by his or her presence on business property without an intent to patronize the business? Must the individual be told to leave the property before an ordinance violation occurs?
In their motion for summary judgment, Plaintiffs advance three general positions. First, Plaintiffs argue the NTL policy is unconstitutionally vague. Second, Plaintiffs argue they are entitled to summary judgment against the City and the Police Chief (sued in his
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official capacity) because the City has a policy of using NTLs to make arrests, including the arrest of each Plaintiff. Finally, Plaintiffs request summary judgment against each defendant officer for a violation of Plaintiffs' clearly established constitutional rights.
For their motion, Defendants advance two positions. First, the individual defendant officers argue they are entitled to qualified immunity. Second, the municipal defendants argue they are entitled to summary judgment for any Monell claim.
To resolve the motions, the Court begins with a brief discussion of the ordinance before addressing Plaintiffs' vagueness argument. Second, the Court identifies the elements of a trespass and then outlines the circumstances leading to each arrest to determine whether probable cause existed. The Court then, considers the Defendant Officers' qualified immunity defenses on a plaintiff-by-plaintiff basis. Finally, the Court addresses Plaintiffs' Monell claim and resolves the City's liability.
I. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a) and (c); Payne v. Novartis Pharms. Corp., 767 F.3d 526, 530 (6th Cir. 2014). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party=s case. Fed. R. Civ. P. 56(c)(1); Holis v. Chestnut Bend Homeowners Ass=n, 760 F.3d 531, 543 (6th Cir. 2014). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 255 (1986) (quoting Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Once the moving party has carried its burden, the nonmoving party must set forth specific facts in the record showing there is a genuine issue for trial. Matsushita, 475 U.S. at 574; Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010) (AAfter the moving party has met its burden, the burden shifts to the nonmoving party, who must present some >specific facts showing that there is a genuine issue for trial.=@) (quoting Anderson, 477 U.S. at 248). In resolving a motion for summary judgment, the court does not weigh the evidence and determine the truth of the matter; the court determines only if there exists a genuine issue for trial. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). The question is Awhether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.@ Anderson, 477 U.S. at 251-252.
II. A. The City of Grand Rapids enacted a trespass ordinance in 1976. (ECF No. 169-5.) The ordinance is found in the section for property offenses and provides that no person shall "[t]respass upon the premises of another or unlawfully remain upon the premises of another to the annoyance or disturbance of the lawful occupants." Grand Rapids, MI. Code Title IX, Chapter 152, Article 1, § 9.133(1). For more than twenty years, the Grand Rapids Police Department (GRPD) has made available, in some form, No Trespass Letters. The NTLs are standardized, blank forms that may be completed by property owners or occupants and submitted to the GRPD. (Compl.
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¶ 33 PageID.527; ECF No. 36-2 NTL PageID564-66.) To be effective, NTLs must be submitted each year, or when a tenant changes or when the ownership of the property changes. (Compl. ¶ 41 PageID.528; NTL PageID.566.) Between January 1, 2009, and May 15, 2012, more than 2000 NTLs were returned to the GRPD. (Compl. ¶ 45 PageID.528.) Of those, over 800 were submitted by a business.1 (Id.) Many of the businesses that submitted NTLs are open the public and include retail stores, supermarkets, gas stations, and restaurants. (Id. ¶ 46 PageID.528.)
Over the years, the City has revised the NTLs. (Compl. ¶ 34 PageID.527.) When Plaintiffs were arrested, the NTLs were formatted as a letter to the Detective Unit in the GRPD.2 (NTL PageID.564.) The letter states that it "serves notice to your office that the occupant (s) and/or owners of this address will prosecute all trespassers." (Id.) The form identifies information that needs to be provided, including the name of the business and the name of the owner of the property. (Id.) The instructions on the third page of the letter state that the "attached letter is intended to assist in keeping trespassers off your property." (Id. PageID.566.) Between 2011 and 2013, officers were involved in incidences where approximately 800 individuals were stopped for allegedly trespassing at a business with an NTL. (ECF No. 154-3 Baumgartner Addendum PageID.2304, 2310-11.) Officers initiated approximately 380 of those stops, as opposed to a citizen complaint. (Id. PageID.2311.)

1

The record does not clarify how many businesses filed NTLs with the GRPD during this

time period. The Court assumes some of the 800 NTLs submitted over the three years included

renewal letters.

2

Since the four Plaintiffs were arrested, the City has again revised the NTLs. Because the

Court has dismissed Plaintiffs' claims for prospective relief, the Court need not discuss how the

NTLs have changed. For the purpose of the remaining claims, only the NTLs used at the time of

the arrests are relevant.

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B. Plaintiffs challenge the City's "NTL Policy" as unconstitutionally vague. A careful reading of the briefs establishes that Plaintiffs are challenging the GRPD's reliance on NTLs, not the trespass ordinance itself. Plaintiffs complain that the "City's NTL program" gives unfettered discretion to the officers to determine who is or is not trespassing, which depends on whether the business has submitted an NTL. (ECF No. 150 Pl. Br. at 33 PageID.1820.) Plaintiffs also assert a lack of notice, arguing that the public does not know which businesses have submitted NTLs. (Id. at 37 PageID.1824.) In their response to Defendants' motion for summary judgment, Plaintiffs summarize their vagueness argument. "Plaintiffs' vagueness challenge is not to the language of the ordinance per se (though it could be clearer), nor to the language of the letter, but rather to the GRPD's policy of using generalized NTLs to arrest individuals for trespassing on commercial property." (ECF No. 182 Pl. Resp. at 16 PageID.3641.) The void-for-vagueness doctrine finds constitutional support in the Due Process Clauses of the Fifth and the Fourteenth Amendments. Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 556 (6th Cir. 1999). The void-for-vagueness doctrine requires that statutes define an "offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). The latter concern is the "more important aspect of the vagueness doctrine," "the requirement that a legislature establish minimal guidelines to govern law enforcement." Id. Courts have found statutes vague when the conduct involves "wholly subjective judgments without statutory
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definitions, narrowing context, or settled legal meaning." Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010).
Plaintiffs have not established that the City's trespass ordinance is unconstitutionally vague. As Plaintiffs have made clear, they are not asserting that any term used in the ordinance is vague. Plaintiffs have not alleged that the ordinance itself fails to provide the proper notice. Plaintiffs' challenge is simply that GRPD officers exercise wide discretion when choosing whom to arrest for trespassing when a business has filed an NTL. Understood in this way, Plaintiffs have not asserted a constitutional vagueness claim recognized by any court. Plaintiffs' vagueness challenge is untethered to a term in the ordinance. And, the ordinance does not authorize the use of NTLs.
In their response to Defendants' motion, Plaintiffs cite three cases for their conclusion that a vagueness challenge can be brought against municipal policies. Two of Plaintiffs' cases involve written policies, which is not the case here. See United Food & Commercial Workers Union v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 352 (6th Cir. 1998) (involving a challenge to the written advertising policy of the regional transit authority); Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1182 (6th Cir. 1995) (involving a challenge the University's written definition of racial and ethnic harassment). The third opinion, Diggs v. Housing Auth. of City of Frederick, 67 F. Supp. 2d 522 (D. Md. 1999), involved an effort to reduce crime in a housing project through trespass notices. Like this case, the Diggs opinion considered a "policy" or program, that was not contained in a single written document. Id. at 526-27 ("Testimony and documents received at the hearing established that the 'policy' itself is not contained in a single written document."). Notably,
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and the reason the opinion is not useful to Plaintiffs, the court did not address a void-forvagueness challenge. The footnote Plaintiffs cite, footnote 19, contains a concern of the court about due process. The issue was not raised by the parties in Diggs and the court did not resolve its concern.
III. The Court next considers whether officers had probable cause for the arrest of each Plaintiff. In this section, the Court identifies the elements necessary for the prosecution of a trespass under the ordinance. The Court then reviews the probable cause requirement for a warrantless arrest under the Fourth Amendment and the law of trespass. Finally, the Court considers the circumstances for each arrest from the perspective of both the suspect and the officer to determine if probable cause existed for an arrest or to issue a citation.
A. The parties have offered competing interpretations of the ordinance. Plaintiffs urge the Court to construe the ordinance consistent with a typical criminal trespass statute. Defendants contend the ordinance should be construed in a manner similar to the civil tort. The Court finds the history of trespass in Michigan to be a useful starting point. The State of Michigan has long recognized both civil trespass and criminal trespass. In Michigan, the tort of trespass occurs by the unauthorized invasion upon the private property of another. Gidding v. Rogalewski, 158 N.W. 951, 953 (Mich. 1916); Cloverleaf Car Co. v. Phillips Petroleum Co., 540 N.W.2d 297, 302 (Mich. Ct. App. 1995) (citation omitted). And, "the actor must intend to intrude on the property of another without authorization to do so." Cloverleaf Car, 540 N.W.2d at 302. Under Michigan common law,
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a person who enters upon the land or premises of another can be a trespasser, a licensee or an invitee. Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88, 91 (Mich. 2000) (considering the duty owed by the landowner to a visitor). A trespasser is one who enters the land of another without that landowner's consent. Id. at 91. To be an invitee, the landowner must hold open the premises for a commercial purpose, id. at 95, and the individual entering the premise must be there for a commercial purpose, id. at 96. An invitee, however, becomes a trespasser when the property owner orders the invitee to leave, and the invitee does not comply. See Breitenbach v. Trowbridge, 31 N.W. 402, 404 (Mich. 1887.)
Michigan's criminal trespass statute currently provides, in relevant part, that a person shall not
(a) Enter the lands or premises of another without lawful authority after having been forbidden to do so by the owner or occupant or agent of the owner or occupant. (b) Remain without lawful authority on the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant. Mich. Comp. Laws § 750.552(1). The statute dates to at least the early 1950s. See 1951 Mich. Pub. Acts No. 102. Michigan courts have referred to the state's trespassing statute as a "trespass-after-warning" statute. See, e.g., People v. Harrison, 163 N.W.2d 699, 702 (Mich. Ct. App. 1968), reversed on other grounds, 178 N.W.2d 650 (Mich. 1970). As noted by the United States Supreme Court, in most jurisdictions, criminal trespass statutes require some notice that the owner wants people to stay off of his or her property. Martin v. City of Struthers, Ohio, 319 U.S. 141, 147-48 (1943) (considering an ordinance that prohibited the door-to-door distribution of handbills and advertisements).
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Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books in at least twelve more states. We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away.
Id. This passage was cited favorably by the Michigan Supreme Court in Amalgamated
Clothing Workers of America, AFL-CIO v. Wonderland Shopping Ctr., Inc., 122 N.W.2d
785,789 (Mich. 1963). In addition, criminal trespass statutes typically require an intent to
remain upon the land after the notice or request to depart. People v. Johnson, 168 N.W.2d
913, 915 (Mich. Ct. App. 1969). The Johnson opinion quoted a lengthy passage from an
Ohio court discussing the intent requirement in Ohio's criminal trespass statute.
In accordance with the general rule that the existence of a criminal intent is an essential element of a statutory offense, it is the rule in many jurisdictions that criminal intent is an essential element of the statutory offense of trespass, even though the statute is silent as to intent; and if the act prohibited is committed in good faith under claim of right or color of title, although accused be mistaken as to his right, unless it is committed with force or violence of a breach of the peace, no conviction will lie, the view taken being that it will not be presumed that the legislature intended to punish criminally acts committed in ignorance, by accident or under claim of right, and in the bona fide relief that the land is the property of the trespasser, unless the terms of the statute prohibit any other construction.
Id. (quoting Ohio v. Larason, 143 N.E.2d 502, (Ohio Com. Pl. 1956)).
With the law of civil and criminal trespass providing context, the Court turns to the
language off the disputed ordinance. The ordinance contains two prohibitions: (1)
trespassing upon someone else's property and (2) unlawfully remaining on the premises of
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another to the annoyance or disturbance of the lawful occupants.3 People v. Maggitt, 903 N.W.2d 868, 872 (Mich. Ct. App. 2017) (considering the second prohibition). The City does not separately define the word "trespass" anywhere in its municipal code. Following § 9.133, the ordinance contains a reference to several state statutes, including the state statute for trespass, Mich. Comp. Laws § 750.546, et seq. The Grand Rapids City Code states that these references are called "catch-lines." Grand Rapids, MI. Code Title I, Chapter 1, § 1.6. The Code explains that catch-lines are adopted as part of the ordinance but are not substantive; they are included "to assist users of the Code but they should not be considered substantive or authoritative." Id. Violations of the City's code can result in a fine up to $500 or imprisonment for up to 90 days or both. Grand Rapids, MI. Code Title I, Chapter 1, § 1.13(1).
The parties offer different principles of statutory construction to support their competing interpretations. Plaintiffs interpret the ordinance as a typical trespass-afterwarning statute. When the legislature fails to define a word, the word should be interpreted with its plain and ordinary meaning, which may be determined by using a dictionary. People v. Morey, 603 N.W.2d 250, 253 (Mich. 1999); Pontiac Sch. Dist. v. Pontiac Educ. Ass'n, 811 N.W.2d 64, 69 (Mich. Ct. App. 2012). Defendants, however, contend that the ordinance criminalizes Michigan's common law of civil trespass. When a statute employs a word with an established common-law meaning without indicating an intent to alter the common law,

3

The second prohibition is not implicated by the circumstances leading to the arrests and

citations of Plaintiffs. The circumstances for each arrest are discussed below. Without dispute, the

lawful occupants did not know that these particular individuals were on the property. Thus, the

lawful occupants could not have been annoyed or disturbed by Plaintiffs.

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the word should be interpreted consistent with the common law. In re Bradley Estate, 835 N.W.2d 535, 550 (Mich. 2013).
The City's trespass ordinance must be interpreted as consistent with Michigan's criminal trespass statute, not with the common law of civil trespass. Weighing in favoring of this interpretation, the City’s trespass ordinance references the State's trespass statute. Although the catch-line reference is not substantive, the catch-line assists those attempting to interpret the ordinance by directing them to the State's statute. Michigan's trespass statute had been the law in the state for more than twenty years when the City enacted its ordinance. Rather than writing the ordinance as adopting Michigan's common law of civil trespass, the City likely had in mind the State's statute, which is why the statute is reference in the catchline. The canon of construction summarized in Bradley does not anticipate or address situations involving a City ordinance in light of a long-standing state statute on the same subject. Also weighing in favor of interpreting the ordinance consistent with Michigan's criminal trespass statute, the ordinance authorizes imprisonment, meaning that a violation of the ordinance constitutes a crime, not a civil infraction. See People v. Schomaker, 323 N.W.2d 461, 463 (Mich. Ct. App. 1982) ("The maximum penalty for a civil infraction is a $100 fine plus costs from $5 to $100; no imprisonment is authorized.").
While it may be possible that the City intended to adopt Michigan common law of civil trespass when it enacted the ordinance, there is nothing in the record to evidence that possibility. Defendants' theory hinges on a single canon of statutory construction. In light of the well-established history of both criminal and civil trespass in the United States generally
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and in Michigan specifically, it would be highly unusual if Grand Rapids opted to criminalize, with the possibility of a fine and imprisonment, the civil tort.
For the City to successfully prosecute a violation of the ordinance, the prosecutor would have to show that the defendant was on someone else's property. The prosecutor would also have to show the defendant lacked authorization to be on the property. Either the defendant entered the property after having been forbidden to do so or the defendant remained on the property after having been told to leave. In other words, the defendant must have been given some notice that his or her presence on the land was not authorized. And, because this is a criminal ordinance, the alleged trespasser must also have the required intent or knowledge, meaning that the trespasser knows he or she is without authority to be on the property.4 See Johnson, 168 N.W.2d at 915. Under Michigan's criminal statute, and under the common law of trespass, an individual entering a business that is open to the public does not become a trespasser until the license to enter the property is revoked by the owner, occupant or an agent.
This interpretation of the ordinance is consistent with opinion in Maggit, a Michigan Court of Appeals opinion issued after this lawsuit was filed. In Maggit, the prosecutor defended the arrest under the second prong of City's ordinance, which prohibits unlawfully remaining on property to the annoyance and disturbance of the lawful occupants. 903 N.W.2d at 873. The prosecutor relied on the fact that the business owner filed a no-trespass letter. The court summarized the prosecutor's theory.

4

The intent requirement would also exist under Defendants' theory. See Cloverleaf Car,

540 N.W.2d at 302.

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Essentially, the prosecution contends that the no-trespassing letter informed the GRPD that the lawful property owners at 101 Sheldon were annoyed and disturbed by illegal activity occurring in the parking lot and that the notrespassing sign on the property communicated as much to all who entered the property, including defendant. In other words, according to the prosecution, police had the unilateral authority to revoke defendant's permission to be on the property and arrest defendant without telling him he was not welcome on the property. Id. at 874. The court rejected the State's theory finding the argument "unconvincing" and
holding that the NTL only authorized the police to ask unwanted individuals to leave the
parking lot before any arrest could be made. Id.
With these elements in mind, the Court considers whether officers had probable
cause to arrest and issue a citation to each Plaintiff.
B.
A warrantless arrest by a law enforcement officer is reasonable under the Fourth
Amendment where there exists probable cause to believe that a criminal offense has been or is being committed.5 Devenpeck v. Alford, 543 U.S. 146, 152 (2004). "[I]t is well established that any arrest without probable cause violates the Fourth Amendment." Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003). For probable cause to exist to make
an arrest, "there must be 'facts and circumstances within the officer's knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the

5

At a minimum, each Plaintiff was detained long enough for an officer to issue a citation for

trespassing. Although the Court has couched the probable cause analysis in terms of an arrest, the

probable cause analysis applies to detentions or stops by an officer who has reason to believe the

suspect has violated a city ordinance. See, e.g., Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)

(probable cause analysis applied to an alleged violation of a city ordinance requiring a suspect to

provide proof of identification); United States v. Graham, 483 F.3d 431, 437 (6th Cir. 2007)

(probable cause analysis for an alleged violation of a city's parking ordinance)

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Case 1:13-cv-00469-PLM ECF No. 203 filed 10/17/18 PageID.4281 Page 15 of 43
circumstances shown, that the suspect has committed is committing an offense.'" Id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1970)). Probable cause is determined by the reasonable conclusions that can be drawn from the facts and circumstances known to the officer at the time of the arrest. Devenpeck, 543 U.S. at 152. Under ordinary circumstances, whether an officer is permitted to make an arrest will depend on state law. Logsdon v. Hains, 492 F.3d 334, 340-41 (6th Cir. 2007) (outlining the standard for a warrantless arrest for criminal trespass).
Probable cause requires only the probability of criminal activity, not the certainty that a crime has been committed. Crockett, 316 F.3d at 580. The Fourth Amendment does not require an officer to know that a crime has occurred at the time the officer arrests a suspect. United States v. Strickland, 144 F.3d 412, 415 (6th Cir. 1998). Officers must have more than a mere suspicion, but do not need to have evidence sufficient to establish a prima facie case at trial. Id. at 415-16. The Sixth Circuit has rejected the conclusion that an officer has a duty to investigate as a factor in determining probable cause. See Gardenshire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000). However, while an officer is in the process of determining whether probable cause exists, he or she cannot look only at evidence of guilt while ignoring exculpatory evidence. Id. Once an officer has probable cause to make an arrest, the officer is under no obligation to continue investigating and may arrest the suspect. Crockett, 316 F.3d at 581 (collecting cases).
Probable cause should be evaluated under the totality-of-the-circumstances. Illinois v. Gates, 462 U.S. 213, 231 (1983). The Supreme Court has held that, generally, "some quantum of individualized suspicion" is required "before a search or seizure may take place."
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Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (quoting United States v. MartinezFuerte, 428 U.S. 543, 560-61 (2018)). Contextual factors, those that would apply to everyone in the area, are part of the totality-of-the-circumstances that may be considered by officers. See United States v. Smith, 594 F.3d 530, 541 (6th Cir. 2010) (discussing reasonable suspicion).
For a wrongful arrest claim under § 1983, a plaintiff must prove the officer lacked probable cause. Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). In a § 1983 lawsuit, probable cause is a question for the jury, unless only one reasonable determination is possible. Id. (citations omitted).
C. 1. Tyrone Hightower Tyrone Hightower was arrested on Sunday, September 4, 2011 around 1:30 a.m. (ECF No. 154-5 Hightower Incident Report PageID.2334-35.) Hightower was arrested in the parking lot of Cheero’s, an establishment located at 2510 Burton Street in Grand Rapids. Cheero’s is in the same building as the Michigan Athletic Club or MAC. (ECF No. 153-3 Leonard Dep. at 136 PageID.2103.) In August 2011, the owner of Cheero’s filed an NTL with the police department.6 (ECF No. 167-7 East Edge Newsletter PageID.2669; ECF No. 173-2 Vanderkooi Dep. at 19 PageID.3150.) Defendant Leonard was the arresting officer. The citation for trespassing was dismissed when the prosecuting attorney filed a nolle prosequi. (ECF No. 154-6 PageID.2338-39.)

6

Defendants have not filed a copy of the NLT for Cheero’s.

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a. Plaintiff Hightower's Perspective Hightower lives in Kalamazoo, not Grand Rapids. (ECF No. 175 Hightower Dep. at 17 PageID.3292.) On September 4, 2011, he and a friend, Khamisi Johnson, drove to Grand Rapids to go to Cheero’s. Hightower was the designated driver (id. at 19 PageID.3293), and he drove Johnson’s van (ECF No. 151 Hightower Dep. at 20 PageID.1907.) Hightower testified that he did not intend to go inside Cheero’s, and that Johnson had an engagement there. (ECF No. 175 Hightower Dep. at 28-29 PageID.329596.) Kenyatta Williams also went with Hightower and Johnson. (Id. at 29-30 PageID.329697.) When the three arrived at Cheero’s, Hightower found a place to park the van while Williams and Johnson got out and stood in line to get inside Cheero's. (ECF No. 175 Hightower Dep. at 41-42 PageID.3302-03.) Hightower parked in reverse, so that the van faced the entrance to Cheero’s. (Id. at 161-62 (PageID.3324-25.) Hightower stayed in the van. (Id. at 42 PageID.3303.) Hightower intended to stay in the van until he saw the two go inside, then he was going to go somewhere else. (Id. at 43 PageID.3304 and at 46 PageID.3305.) Shortly after leaving the van, Williams came back to the vehicle. (Id. at 46 PageID.3305.) Williams was gone for about five minutes. (Id. at 47 PageID.3306.) Williams denies he was there for thirty minutes. (Id. at 51 PageID.3309.) Williams also denies that he had music playing loudly. (Id. at 56 PageID.3311.) The police officers approached the van at the same time Williams returned. (Id. at 165 PageID.3326.) One of the officers asked Hightower how long he had been there, and Hightower said thirty minutes. (Id. at 168 PageID.3327.) Hightower thought the officer
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meant how long he had been in Grand Rapids. (Id.) Hightower was pulled out of the van by his left arm and was told to put his hands on the side of the van. (Id. at 168-69 PageID.3327-28.) He was handcuffed, walked to the police car, and told he was going to jail for trespassing. (Id. at 169 PageID.3328.)
b. Defendant Leonard’s Perspective Leonard and another officer were monitoring Cheero’s on September 3 and 4, 2011. (ECF No. 167 Leonard Affidavit ¶ 33 PageID.2625.) Leonard had issued open container tickets to two individuals sitting in a car when he observed Hightower's van. (Id. ¶ 38 PageID.2625.) The van was backed into the parking spot, Leonard could see people in the car, and he could hear music coming from the car. (Id. PageID.2625-26.) Leonard made contact with Hightower, who was in the driver’s seat, and the other officer made contact with Williams, who was in the passenger seat. (Id. PageID.2626.) Hightower told the officers that they were waiting for a friend and that they had been there for about half an hour. (Id. ¶ 39 PageID.2626.) Leonard claims he could see a bag containing a green leafy substance in Williams’ lap, which Williams was trying to conceal. (Id. ¶ 40 PageID.2626.) At his deposition, Leonard testified that, when he approached the van, he knew it had been there for at least ten to fifteen minutes because he observed the van while he was making contact with the two other men. (ECF No. 171-3 Leonard Dep. at 143 PageID.2924.) Leonard agreed that Hightower said he was waiting for a friend and that he had been there for thirty minutes. (Id. at 145 PageID.2927.) With that information, Leonard then arrested Hightower for trespassing. (Id.) Leonard summarized his assessment of the situation as follows: the van was parked for 15 to 20 minutes, blaring loud music, the individuals in the
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van were not making any effort to go into the club, and they saw officers proactively dealing with other people who are just sitting in their cars. (Id. at 152-53 PageID.2929-30.) Leonard acknowledged he did not see Williams’ marijuana until after the officers had started to handcuff Hightower and Williams. (Id. at 154 PageID.2931.)
c. Probable Cause The undisputed evidence establishes that Defendant Leonard did not have probable cause to arrest Hightower for trespassing. Cheero's was open when Hightower arrived. At no point did anyone from any of the local businesses complain about Hightower or indicate that he must leave the parking lot. The officers did not ask Hightower to leave before arresting him. Leonard admitted that he did not see the marijuana until he was already arresting Hightower. Viewing the evidence in the light most favorable to Plaintiffs, Defendants would not be entitled to summary judgment on the question of probable cause. When the evidence is viewed in the light most favorable to Defendants, Plaintiffs would be entitled to summary judgment on the question of probable cause. To the extent there are disputes of fact, such as the noise level of the music and the length of time that Hightower had been in the parking lot, those disputes do not implicate whether Hightower was on notice that he could not be in the parking lot.
2. Percy Brown Percy Brown was arrested on Sunday, January 8, 2012, around 1:30 a.m. (ECF No. 154-10 Brown Incident Report PageID.2323-54.) Brown was arrested in the parking of Cheero’s. Defendant Leonard was the arresting officer. When the officers first observed Brown, he was in the driver’s seat of a car in the parking lot. Brown was issued a citation for
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trespassing. Brown eventually performed 20 hours of community service, after which the case was dismissed with the prosecuting attorney filed a nolle prosequi. (ECF No. 155 PageID.2356-57.)
a. From Brown’s Perspective Brown arrived at Cheero’s sometime after midnight and probably closer to 1:30 a.m. (ECF No. Brown Dep. at 17 PageID.2825.) Brown backed his car into a parking space so that he could see the front of Cheero’s bar. (Id. at 18 PageID.18 PageID.2826.) Brown was texting his friend who was inside the bar. (Id. at 20 PageID.2827.) Brown and his friend exchanged texts for a couple of minutes. (Id. at 24 PageID.2831.) Cheero’s has a cover charge and, at that point in the evening, there was no line to enter. (Id. at 28-29 PageID.283334.) Brown testified that he is patted down by security almost every time he went into Cheero’s. (Id. 31 PageID.2836.) From where he was parked, Brown could see the bouncers or security standing outside the door to Cheero’s. (Id. at 62-63 PageID.2853-54.) While Brown was sitting in his vehicle, a police car pulled up and stopped in front of his car. (Brown Dep. at 36 PageID.2841.) Brown recalled that he was probably sitting in his car for about ten minutes when the police car pulled in front of him. (Id. at 57 PageID.2851.) Two officers got out and approach Brown. (Id. at 36 PageID.2841.) The officers asked Brown what he was doing and then asked for his license and registration. (Id. at 37 PageID.2842.) The officer also asked Brown if they could search his vehicle, and he assented. (Id.) The officers asked Brown to get out of his vehicle and then asked him to get in the back of the police car. (Id.) Brown was issued a citation for trespassing. (Id. at 39 pageID.2844.)
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b. From Defendant Leonard’s Perspective Leonard recalled the evening of January 7 and morning of January 8 was hip-hop night at Cheero’s. (ECF No. 171-3 Leonard Dep. at 161 PageID.2933.) Leonard and another officer saw Brown sitting in a car, by himself, in the parking lot of Cheero’s. (Id. at 162 PageID.2935.) The owners of Cheero’s had told the police department that he did not want people hanging out in the parking lot. (Id. at 164 PageID.2936.) Leonard did not know how long Brown had been there, but Percy told the officer he had been sitting his vehicle for about ten minutes and was waiting for a friend. (Id.) Leonard testified that sitting in the car was consistent with waiting for a friend, and that it was also consistent with the sort of problems that the owner of Cheero’s had been complaining about. (Id. at 163-64 PageID.2935-36.) Leonard was deposed on January 22, 2014. On October 13, 2014, Leonard signed an affidavit, which was attached as an exhibit to Defendants’ motion. In the affidavit, Leonard states that, on weekends, Cheero’s was a nightclub and was the only business in the area open after midnight. (ECF No. 167 Leonard Affidavit ¶ 20 PageID.2623.) On the weekends, the parking lot was often chaotic and the police attempted to monitor the parking lot as time permitted. (Id.) On January 4, 2012, Leonard received an email sent by Captain VanderKooi. (Id. ¶ 43 PageID.2625.) The email, called the East Edge, summarizes recent crimes. (ECF No. 174-2 PageID.3209.) The January 4 email identified a murder attempt in Cheero’s parking lot, which occurred on January 1, 2012, in the early morning. (Id.)
c. Probable Cause
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The undisputed facts establish that Leonard did not have probable cause to arrest Brown for trespassing. Cheero's was open when Brown arrived. No one from any of the area businesses complained about Brown or indicated that he must leave the parking lot. Leonard did not warn Brown that he needed to leave the parking lot before issuing the citation. When this evidence is viewed in the light most favorable to Plaintiff, Defendants are not entitled to summary judgment on the issue of probable cause. When viewed in the light most favorable to Defendants, Plaintiffs are entitled to summary judgment on the question of probable cause. In fact, the record does not weigh strongly in favor of finding that the officers had a reason to investigate Brown's presence. Most of the reasons provided by Leonard for his investigation are contextual factors that would apply to anyone in the parking lot. Brown had only been in the parking lot for about ten minutes and was texting with a friend inside the establishment. Brown was cooperative with the officers and even consented to a search of his vehicle. The parties do not dispute any of these facts. The record does not indicate whether the parking lot was busy or congested when Brown was arrested.
3. Kirk McCroner McConer was arrested around 7 p.m. on Monday, March 21, 2012. (ECF No. 1547 McConer Incident Report PageID.2341.) Rau’s Party Store had an NTL on file with the Grand Rapids Police Department. (ECF No. 155-6 PageID.2413.) Defendant Niemeyer was the arresting officer. (Id.) Niemeyer arrested McConer in an area behind Rau’s Party Store. McConer was charged with trespassing, creating a disturbance, and with failing or
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refusing to obey a lawful order. (ECF No. 154-9 Docket Sheet PageID.2350.) All three charges were dismissed when the prosecuting attorney filed a nolle prosequi. (Id.)
Rau’s Party Store is located at 2015 South Division, on the northwest corner of the intersection of Division (north-south) and Cutler (east-west). (See ECF No. 152-1 PageID.1958.) There is a back entrance to Rau’s. The back entrance sits back from an alleyway, a path for cars, that runs north-south between Cutler and Burton. There are three or four parking spaces in Rau’s parking lot, on Rau’s side of the alleyway, all facing Cutler. On the other side of the alleyway, west of the back entrance to Rau’s, is a city-owned parking lot. McConer parked in the city-owned lot.
a. From McConer’s Perspective. McConer and a friend went to several stores looking for diet soda. (ECF No. 151-2 McConer Dep. 73-77 PageID.1926.) McConer parked on the north side of the city-owned lot close to the grocery store that faces Burton. (Id. at 76-78 PageID.1927.) McConer went to Rau’s Party Store and purchased a diet soda. (Id. at 81-83 PageID.1928.) When he exited Rau’s Party Store, McConer saw an acquaintance and the two began speaking. (Id. at 87-88 PageID.1929-30.) A police officer in a vehicle told the men they had to move on because it was a bad neighborhood and the two could not stand there talking. (McConer Dep. at 92 PageID.1931.) McConer told the officer he just purchased a drink inside. (Id. at 93 PageID.1931.) The officer asked McConer for identification; the officer did not inform McConer he was trespassing. (Id.) As McConer handed this license to the officer, the officer jumped out of the car and informed McConer he was under arrest. (Id. at 94 PageID.1931.)
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Later at his deposition, McConer testified that the officer got out of the car when he asked for identification. (Id. at 159-60 PageID.1939-40.) Rather than providing identification, McConer asked if he was under arrest, to which the officer replied “yes.” (Id. at 160 PageID.1940.) When asked why, the officer stated that it was for trespassing. (Id.) McConer recalled he then told the officer he had just purchased a pop at the party store. (Id.)
McConer denies that the officer asked him to leave the parking lot. (Id. at 94-95 PageID.1931.) McConer admits that the officer asked McConer’s acquaintance to leave. (Id. at 95 PageID.1931.) McConer denies that the officer asked him how long he had been in the parking lot. (Id. at 96 PageID.1932.)
b. From Officer Niemeyer’s Perspective Officer Niemeyer testified that the area where he observed McConer has a history of drug and weapons problems, prostitution and trespassing. (ECF No. 153-8 Niemeyer Dep. at 57 PageID.2168.) He knows the parking lot there and has had personal experience where he has been in fights with people who have drugs and weapons on them. (Id.) Niemeyer admitted that he does not know where the line is that divides the City’s parking lot from Rau’s parking area. (Id. at 63 PageID.2169; 94 PageID.2177.) However, both the City and Rau’s do not want people trespassing in the lot and will prosecute trespassers. (Id. at 63 PageID.2169 When Niemeyer pulled into the parking lot, he observed McConer and his acquaintance standing and looking at some young women. (ECF No. 153-8 Niemeyer Dep. at 59 PageID.2168.) The two men were not going into Rau’s and were not exiting the store either. (Id.) Niemeyer asked the two men what they were doing, and one of them responded
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that they were staring at the pretty young ladies. (Id. at 130 PageID.2186.) Niemeyer informed the men that there were ongoing problems in the neighborhood and they needed to leave the lot. (Id. at 59 PageID.2168; at 105 PageID.2180; at 107 PageID.2180; at 108 PageID.2181; and at 131 PagID.2186.) McConer became belligerent and stated that he had just made a purchase at Rau’s. (Id. at 131 PageID.2186.) McConer initially did not leave the lot as instructed, but then he began to walk away and did not tell Niemeyer where he was going or why. (Id. at 107 PageID.2180; at 108 PageID.2181; at 109 PageID.2181; and at 110 PageID.2181.) When McConer started to walk away, Niemeyer told him to stop, but McConer did not and kept walking. (Id. at 132 PageID.2187.)
After arresting McConer and placing him in handcuffs, Niemeyer spoke with the salesperson in Rau’s. (Niemeyer Dep. at 122 PageID.2184.) Niemeyer confirmed that McConer had been in the store and had made a purchase. (Id.) Niemeyer did not release McConer because McConer had continued to hang around the parking lot after making the purchase and had ignored the command to vacate the lot. (Id.)
c. Probable Cause There remain disputed material facts that preclude this Court from concluding that Niemeyer had probable cause to arrest McConer and to issue his a citation for trespassing. Niemeyer claims to have told McConer he needed to leave the property; McConer denies he was given this warning. Niemeyer conceded that no business owner had complained about McConer. (Id. at 95 PageID.2177.) Niemeyer did not know how long McConer and his friend had been talking when Niemeyer approached the two men. (Id. at 96 PageID.2178.) It is unclear from the record where McConer was standing, in Raus's or in
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the City's lot, when he was approached by Niemeyer. Although Niemeyer testified that there were no trespassing signs posted for all of the parking lots (id. at 97 PageID.2178), at least one of the signs read "business patron's only" (ECF No. 151-6 PageID.1954). Without dispute, Niemeyer had patronized Rau's within minutes of being approached by Niemeyer. This evidence, viewed in the light most favorable to Plaintiffs, contains genuine issues of material fact that preclude granting Defendants' motion for summary judgment. In this light, Niemeyer did not order McConer to leave the lot. And, when viewed in the light most favorable to Defendants, genuine issues of material facts preclude granting summary judgment to Plaintiffs. In this light, Niemeyer ordered McConer to leave the parking lot, and McConer initially manifested an intent not to leave.
That McConer was arrested for other crimes does not change the conclusion that Niemeyer lacked probable cause to believe McConer was committing a crime. On this record, the Court cannot conclude that McConer disobeyed a lawful order. McConer contends he did provide his identification to Niemeyer. Niemeyer apparently told McConer both to leave the area and then to stop walking away. It is not clear which of these to orders were violated. If McConer had a reason to be in the parking lot, Niemeyer likely should not have ordered McConer to leave. If McConer was leaving as Niemeyer requested, then Niemeyer had no reason to order McConer to stop. Also, when McConer was walking away, he was headed in the direction of his parked car. Therefore, he had a legitimate reason to go in that direction. Finally, the record does not contain sufficient evidence for this Court to conclude that McConer was disturbing the peace, at least the evidence does not suggest one and only one conclusion with regard to that charge.
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4. Jacob Manyong Jacob Manyong was arrested around 8:00 p.m. on Sunday, February 19, 2012. (ECF No. 155-1 Manyong Incident Report PagerID.2359.) Defendant Leonard was the arresting officer. (Id. PageID.2360.) When Leonard first observed Manyong, Manyong was in a car parked at one of the City’s metered parking spots in a lot shared by Robbins Lock Shop. Robbins Lock Shop had an NTL on file with the police department. (ECF No. 155-8 PageID.2419.) Leonard followed Manyong’s car as Manyong exited the parking lot on to Burton Street. Leonard pulled Manyong over and arrested him. Defendant Niemeyer assisted Defendant Leonard after Manyong had been pulled over. Two cases were filed against Manyong. One case was for trespassing, which was dismissed when the prosecuting attorney filed a nolle prosequi. (ECF No. 155-2 PageID. 2362.) The second case, failing to provide proof of insurance, was resolved by a plea. (ECF No. 155-3 PageID2365.) Robbins Lock Shop is located at 2004 South Division in Grand Rapids. The parking lot and store are the southeast corner of the intersection of Division (north-south) and Burton (east-west). Robbins Lock Shop faces Division Street. One entrance to and exit from the parking lot is on Division Street. A second entrance to and exit from the lot is on Burton Street. The parking spaces inside the lot and next to the building are considered Robbins Lock Shop’s lot. The metered parking spaces that face Burton and Division Streets on the outside of the lot are operated by the City. Manyong had parked at one of the metered spaced facing Division Street.
a. From Manyong’s Perspective.
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Manyong is not a native English speaker. Although he does speak some English, his primary language is Dinka, a language spoken in South Sudan. His family is still in Sudan and Manyong usually calls them on the weekends. (ECF No. 152-2 Manyong Dep. at 41 PageID.1968.) On the evening of the incident, Manyong was at a friend’s house and the store he usually buys calling cards from was already closed. (Id. at 42 PageID.1968.) His friend said that there was a store at Division and Burton that should be open and sells calling cards. (Id. at 43 PageID.1968.) Manyong was not familiar with the store and had never been to that store before. (Id.)
Manyong remembered entering the parking lot from Division Street. (Manyong Dep. at 26 PageID.1964.) Manyong parked his car, got out, and walked across the street. (Id. at 18 PageID.1962.) He did not wait in the car. (Id.) Manyong did not find the store he was looking for, so he went back to his car. (Id. at 38 PageID.1967.) Manyong recalled he did not walk more than one block. (Id. at 20 PageID.1963.) Manyong got back in his car and left. (Id. at 23-24 PageID.1963-64.) He exited the parking lot using the entrance and exit on Burton Street. (Id. at 26 PageID.1964.) He thought his car might have been parked in the lot for two to three minutes total. (Id. at 51 PageID.1970.)
Manyong recalled seeing a police car while he was walking back to his car. (Manyong Dep. at 24 PageID.1964.) The police car stopped on Division Street. (Id. at 26 PageID.1964.) As he was driving home on Burton Street, a police car turned on its lights and siren. (Id. at 27 PageID.1964.) Manyong pulled over and was surrounded by other police cars. (Id. at 28 PageID.1965.) Manyong produced his license to the officer, but could not show proof of insurance because it was in the glove compartment and the lock was
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broken. (Id. at 29 PageID.1965.) The officer left with the license. When the officer returned, he asked Manyong to get out of the car and Manyong complied. (Id. at 30 PageID.1965.) The officer then ordered Manyong to put his hands on his head and the officer performed a pat down. (Id.) Manyong was then placed in the back seat of a patrol car. (Id.)
b. From Defendant Leonard’s Perspective Officer Leonard was in his patrol car on Division Street approaching Burton when he observed a man sitting in a parked car in a parking lot. (ECF No. 171-3 Leonard Dep. at 84-85 PageID.2895-96.) The vehicle was parked at a metered spot. (Id. at 88 PageID.2899.) Leonard thought he had seen the same car about an hour earlier, but would not say for certain so he omitted his belief from the police report. (Id. at 86 PageID.2897.) Robbins Lock Shop was closed. (Id. at 93 PageID.2901.) Leonard was aware that the owners of the lock shop did not want people in their parking lot during non-business hours. (Id.) Leonard was driving north on Division Street when he made eye contact with Manyong. (Leonard Dep. at 95 PageID. 2903.) Leonard applied his brakes and began to back up, intending to enter the parking lot. (Id.) At that point, Leonard saw Manyong back up and leave the parking lot onto Burton Street. (Id.) Leonard followed Manyong and executed a traffic stop. (Id. at 96 PageID.2904.) In the police report, Leonard stated that he stopped Manyong because the license plate light on Manyong’s car was not working. (Id.) At his deposition, Leonard said he also stopped Manyong because Manyong had been trespassing. (Id.) Leonard acknowledged that he observed Manyong parking in a public parking place (id. at 98 PageID.2905) and admitted that using a public parking spot to go
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into a business that is open is not trespassing (id.). Leonard thought that Manyong’s explanation did not make sense because there were parking spaces behind Rau’s that would have been closer.7 (Id.) After Leonard executed the traffic stop, he verified that Robbins Lock Shop had an NTL on file with the police department. (ECF No. 158 Transcript of Video of Manyong Traffic Stop PageID.2515.) Manyong was issued a citation and was released.
At his deposition, Leonard was asked about probable cause to execute the traffic stop. Leonard conceded that whether Manyong entered into the property of Robbins Lock Shop when he backed up was not something Leonard considered when he stopped Manyong that evening. (Leonard Dep. at 119 PageID.2917.) And, he conceded that the alleged trespass onto the parking spot for the lock shop did not provide probable cause to execute the traffic stop. (Id. at 121 PageID.2919.)
c. From Defendant Niemeyer’s Perspective Officer Niemeyer searched Manyong’s car. Around two minutes into the video, Leonard asks Manyong if he has anything illegal, like guns or drugs. Manyong says “no,” “you can check, you can check.” Around minute seven, just after Manyong is put in the back of the police car, one of the officers says something about looking in the car. Leonard can then be heard saying “he already said yes.” Leonard then says “It’s ok if we check your car, right?” Manyong says something in response, but the audio is not clear.
d. Probable Cause
7 This rationale could not justify executing the traffic stop for trespassing. Manyong did not provide this explanation until after the traffic stop was executed.
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There exist genuine issues of material fact whether Leonard had probable cause to execute the traffic stop for a defective light. Manyong was not cited for having a defective license plate light. Manyong testified that the light was working and that the officer never told him that the license plate light was not working. (Manyong Dep. at 52-53 PageID.1971.) It is not clear from the video whether the license plate light is functioning. Manyong’s car can be seen momentarily as it exits the parking lot. When Leonard’s car pulls behind Manyong’s car on Burton Street, the headlights from Leonard’s police car illuminate the license plate. Leonard concedes he did not consider the alleged trespass when he executed the traffic stop and that the alleged trespass would not have been a reason for him to execute the traffic stop. Viewed in the light most favorable to Plaintiffs, the light was not defective and Defendants' motion for summary judgment on the issue of probable cause must be denied. Viewed in the light most favorable to Defendants, Leonard thought the tail light was defective and Plaintiffs' motion must be denied.
The undisputed evidence establishes that Defendant Leonard did not have probable cause to issue Manyong a citation for trespassing. No business owner complained about Manyong or asked Manyong to leave the property. Manyong was parked on public property. Leonard did not warn Manyong before issuing the citation. And, Manyong had already left the property. On this record, Manyong never evidenced an intent to either enter or remain on the lock shop's property. On this issue, Plaintiffs' motion must be granted and Defendants' motion must be denied.
There are no genuine issues of material fact concerning Niemeyer's search of Manyong's car. The evidence establishes that Manyong gave consent to the search. See
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United States v. Purcell, 526 F.3d 953, 960 (6th Cir. 2008) ("An officer with consent needs neither a warrant not probable cause to conduct a constitutional search.") (citation omitted).
IV. The individual defendants have asserted qualified immunity. In this section, the Court reviews the relevant law and then considers whether each defendant is entitled to the defense.
A. "[G]overnment officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a legal question for the court to resolve. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009). When resolving a governmental employee's assertion of qualified immunity, the court determines (1) whether the facts the plaintiff has alleged or shown establishes the violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the incident. Stoudemire v. Michigan Dep't of Corr., 705 F.3d 560, 567 (6th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The Court has determined that either the officer lacked probable cause or that a genuine issue of material fact exists concerning probable cause. Once the qualified immunity defense is raised, the plaintiff bears the burden of demonstrating both that the challenged conduct violates a constitutional or statutory right and that the right was so clearly established at the time that "every reasonable official would have understood that what he [was] doing violate[d] that right." T.S. v. Doe, 742 F.3d 632,
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635 (6th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (alterations in T.S.). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.'" al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
When determining if the law was clearly established, district courts look to the decisions of the United States Supreme Court and then to the decisions of the circuit court. Carver v. City of Cincinnati, 474 F.3d 283, 287 (6th Cir. 2007). After considering binding authority, a district court may consider persuasive authority from other circuit courts. See Andrews v. Hickman Cty. Tennessee, 700 F.3d 845, 853 (6th Cir. 2012); see also Wilson v. Layne, 526 U.S. 603, 617 (1999) ("Petitioners have not brought to our attention any case of controlling authority in their jurisdiction at the time of the incident which clearly establish the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful."). Although a prior case need not be directly on point, "existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U.S. at 741.
The clearly established prong will depend "substantially" on the level of generality at which the legal rule is identified. Anderson v. Creighton, 483 U.S. 635, 639 (1987). The right must be clearly established in a particularized sense and not in a general or abstract sense. Id. at 640. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has
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previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id. (internal citation and quotation marks omitted). "This standard requires the courts to examine the right at a relatively high level of specificity an on a fact-specific, case-by-case basis." Bletz v. Gribble, 641 F.3d 743, 750 (6th Cir. 2011) (edits omitted) (quoting Cope v. Heltsley, 128 F.3d 452, 458-59 (6th Cir. 1997)).
B. Plaintiffs have not established that the relevant law was clearly established at the time of each arrest such that each defendant would have known that what he was doing violated the suspect's constitutional rights. Part of the dispute in this lawsuit is what the ordinance requires for probable cause to exist, which distinguishes this case from all others that Plaintiffs have identified. Plaintiffs asserts a very broad approach to the clearly established requirement. Plaintiffs argue that the probable cause requirement is clearly established. Plaintiffs' approach is far too general to be useful for determining whether the officers had probable cause to believe each Plaintiff violated the trespass ordinance. Plaintiffs have not identified any state or federal court opinion that has discussed a statute or ordinance similar to the one at issue here. The Maggit opinion was issued after this lawsuit was filed. The City's ordinance merely prohibits trespassing, without defining the term. Unlike most other criminal trespass statutes, the ordinance does not address what notice must be given. The ordinance does not indicate whether notice must be posted that entry is forbidden. The ordinance does not indicate when an entry becomes trespassing after the individual is asked or told to leave. In either case, notice before or after entry, the alleged trespasser would have no knowledge that he or she must leave the property. When the Sixth
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Circuit has considered probable cause in connection with a trespass statute or ordinance, the legislative act has provided for some form of notice. See, e.g., Thompson v. Ashe, 250 F.3d 399, 408-09 (6th Cir. 2001) (involving Tennessee's trespass statue which prohibits entering or remaining on property without the consent of the owner, which may be inferred if the property is used for commercial purposes); United States v. Reid, 220 F.3d 476, (6th Cir. 2000) (involving a municipal ordinance which prohibited entering or remaining on the property of another without privilege).
The cases cited by Plaintiffs on the issue of probable cause are distinguishable and do not show that the law was clearly established. In one case involving Ohio's criminal trespass statute, Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007), the court reversed the district court's decision to grant qualified immunity to the arresting officers on a Rule 12(b)(6) motion. Ohio's statute prohibited entering or remaining on someone else's property without the privilege to do so. Id. at 241 (citing Ohio Rev. Code § 2911.21(A)(1)). According to the complaint, the arresting officer, who did not observe the alleged trespass, refused to listen to exculpatory evidence from witnesses at the scene, which would have implicated the officer's assessment of privilege and, therefore, probable cause to arrest. Id. at 342-43. The court concluded that the complaint pled sufficient facts to show the officer lacked probable cause. Id. at 343. For the clearly established prong of the analysis, the court held only that the requirements for probable cause were well established. Id. But, unlike this lawsuit, the scope of Ohio's statute—what knowledge was necessary to believe a crime was committed—was not in dispute.
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Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302-03 (6th Cir. 2005) involved an arrest under Ohio's burglary law, of which trespass was an element. The court explained that the plaintiff's criminal liability under the burglary statute would resolve by determining whether he was a current or former tenant on the evening of the incident. Id. at 304. The court concluded that there were disputes of fact about Radvansky's status as a tenant, which precluded a finding of probable cause on summary judgment. Id. at 304-10. The court then reversed the district court's decision to grant qualified immunity, finding that the probable cause requirement for an arrest was well established. Id. at 310. Like Logsdon, the requirements for a determination of probable cause that a criminal trespass was occurring were not in dispute. Here, the parties do dispute what an officer must know to have probable cause to believe the City's trespass statute was violated.
The conclusion that the individual officers are entitled to qualified immunity is consistent with one court opinion issued since these incidents occurred and after this lawsuit was filed. Kenyatta Williams, one of the individuals arrested with Plaintiff Hightower, filed a separate lawsuit in this Court. Williams v. City of Grand Rapids, No. 1:13-cv-653 (W.D. Mich.) In that lawsuit, the Court found that Officers Leonard and Rekucki were entitled to qualified immunity on both prongs of the inquiry. Williams v. City of Grand Rapids, No. 1:13-cv-653, 2014 WL 5539639, at *6 (W.D. Mich. Sept. 2, 2014) (report and recommendation), adopted 2014 WL 5506820 (W.D. Mich. Oct. 31, 2014).
Accordingly, individual defendants are entitled to qualified immunity. V.
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In this final section, the Court considers Plaintiffs' allegations against the City of Grand Rapids. In addition to suing the City, Plaintiffs also sued the Chief of Police in his official capacity. A claim against the Chief of Police in his or her official capacity is really a claim against the municipality. See Myers v. Potter, 422 F.3d 347, 357 (6th Cir. 2005). And, because the City is a named defendant, the claim against the Chief of Police is redundant. Accordingly, Defendants' request to dismiss the Chief of Police as a defendant is granted.
A. “To succeed on a municipal liability claim, a plaintiff must establish that his or her constitutional rights were violated and that a policy or custom of the municipality was the ‘moving force’ behind the deprivation of the plaintiff’s rights.” Miller v. Sanilac Cty., 606 F.3d 240, 254-55 (6th Cir. 2010). A plaintiff has at least four methods for proving the existence of an unconstitutional policy or custom: (1) the municipality’s legislative enactments or official agency policies, (2) actions taken by officials with final decision-making authority, (3) a policy of inadequate training or supervision, and (4) a custom or tolerance or acquiescence of federal rights violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (citations omitted); see Burgess v. Fischer, 735 F.3d 462, 477 (6th Cir. 2013). A municipality policy results from the decisions of its legislative body or those officials whose acts may be said to be those of the municipality. Ford v. Cty. of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997)). "To be sure, 'official policy' often refers to formal rules or understandings—often but not always committed to writing—that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Pembauer v. City of
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Cincinnati, 475 U.S. 469, 480-81 (1986). And, federal courts have "long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by a written law or express municipal policy, is 'so permanent and well settled as to constitute a custom or usage with the force of law.'" City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)).
B. The undisputed evidence in the record establishes that the City of Grand Rapids has a policy that no-trespass letters filed by area business authorized the City's police officers to revoke a suspect's invitation to be on commercial property and to arrest those suspects without first informing them that they were no longer welcome on the property. That the officers considered the totality of the circumstances to determine, in their discretion, that the suspect was not on the property for a commercial purpose, does not save the policy. Criminal trespass requires notice to the suspect that his or her presence is unwanted. For Defendants' motion, the Court must view the evidence in the light most favorable to Plaintiffs. Viewed from this perspective, the evidence against the City is overwhelming. Without dispute, the City has a policy or custom of promoting NTLs to local businesses. Defendants admit this in their response to Plaintiff's motion; "[t]o be clear, use of no-trespass letters is a city custom or practice, but is not a formally promulgated, written policy." (ECF No. 183 Def. Resp. at 17 PageID.3907.) The City has issued blank NTLs dating back at least to 1994. (ECF No. 155-9 PageID.2433.) The Grand Rapids Police Department distributes a pamphlet titled "Protect Your Property With a Trespass Letter of Authorization." (ECF No. 150-7 PageID.1848-49.) Lieutenant Michael Maycroft testified
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that the Police Department uses both formal and informal channels, including neighborhood associations, to promote NTLs throughout the City of Grand Rapids. (ECF No. 172-4 Maycroft Dep. at 46-47 PageID.3076-77.) But, having a policy or custom of promoting NTLs, even soliciting NTLs from area business, does not resolve the question of whether the City can be held liable. A program of promoting NTLs does not violate anyone's constitutional rights.
How the City used the NTLs, however, did violate constitutional rights. The Police Department has compiled a field training manual for its officers. (ECF No. 150-8.) Under the section for Selected Ordinance Violations, the trespassing ordinance is discussed. (Id. PageID.1854.) The handbook instructs officers that a "[c]omplainant and/or valid 'No Trespass' letter necessary for arrest." (Id.) Neither document instructs that the officer must first ask or order the suspect to leave the property. Viewed in the light most favorable to Plaintiffs, these documents authorize an arrest for trespassing without notice to the suspect that he or she should leave the property.In th
Most of the officers who have been deposed testified to the same interpretation of the ordinance. Chief Kevin Belk, Captain Curtis Vanderkooi and Lieutenant Maycroft, none of whom are defendants, were deposed and discussed the City's trespass ordinance. Chief Belk did not think that notice was an element of the crime of trespass reasoning that "if I'm on your property, I know I'm on your property, I know I am there for a purpose that you don't intent me to be there for, I am trespassing." (ECF No. 173-1 Belk Dep. at 38 PageID.3129.) And, Chief Belk admitted that a no-trespass letter is not publicly available and provides no information to the public about the intent of the business owner. (Id. at 33 PageID.3133
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and 51 PageID.3138.) Captain Vanderkooi explained that a no-trespass letter "transfers authorization to determine if you're trespassing to the police." (ECF No. 153-1 Vanderkooi Dep. at 81 PageID.2070.) Captain Vanderkooi distinguished the City ordinance from the state criminal trespassing law. Under the ordinance, "[a]ll we have to do is determine that they are on the property unlawfully. That's all that the law requires." (Id. at 82 PageID.2070.) In contrast, "[t]he state law requires that somebody tell them, 'You're forbidden to be on this property' before they can be arrested." (Id.) And, when no letter has been filed, the owner or agent of the business must order the suspect to leave the property before the police can arrest for trespassing. (Id.) Captain Vanderkooi was insistent that the ordinance does not require a police officer to first ask a suspect to leave the premise before the officer can make an arrest. (Id. at 97 PageID.2072.) Lieutenant Maycroft testified that an NTL is an "explicit authorization for us to make that arrest without having to contact the owner." (ECF No. 172-4 Maycroft Dep. at 67 PageID.3087.) According to Maycroft, officers have discretion to ask individuals to leave the property, but "the crime of trespassing can occur without asking them to leave." (Id. at 85 PageID.3091.)
The defendant officers testified that submitting an NTL was sufficient for the officers to know that the business owner did not want people on the property who were not doing business. Defendant Rekucki testified that the City ordinance "essentially" authorizes him to arrest someone when he observes that individual on someone else's property, doing something he or she should not be doing, if there is a valid NTL for that property. (ECF No. 172-1 Rekucki Dep. at 44 PageID.2949.) Defendant Niemeyer testified that, when a business owner has filed an NTL, the owner does not have to ask a person to leave and the
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officer can execute an arrest for trespassing if the officer believes the totality of the circumstances establishes probable cause. (ECF No. 172-2 Niemeyer Dep. at 43 PageID.2992.) Defendant Niemeyer also testified that he does not need to ask someone to leave before making an arrest for trespassing. (Id. at 82 PageID.3011.) Defendant Leonard testified that, by verifying that an owner has filed an NTL, he functionally accomplishes contact with the property owner. (ECF No. 153-3 Leonard Dep. at 60 PageID.2089.)
Contrary to what Defendants argue in their motion, Plaintiffs are not relying on a theory of inaction. The evidence discussed above, the pamphlet, the training manual, the statement of supervising officers, and the testimony of the individual defendants, establish the City's policy or custom of using no-trespass letters as authorization to arrest for trespassing, assuming the officer determines that the suspect is not patronizing the business, even when the suspect has not been warned to leave.
Defendants' other evidence is not sufficient to create genuine issues of material fact. That the GRPD's Manual of Procedures (ECF No. 183-3) does not mention the ordinance or no-trespass letters is not helpful. Other documents do specifically mention the ordinance and explain how the City uses NTLs.
Turning to Plaintiffs' motion, the same result occurs when viewing the record in the light most favorable to Defendants. The record contains no evidence from which the Court could conclude GRPD officers do not rely on NLTs to make an arrest without first warning the suspect to leave the area. This result should not come as a surprise to Defendants. Defendants have consistently defended their interpretation of the ordinance, which is apparent from the testimony from all of the officers. In the Maggit lawsuit the City offered
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the same probable cause defense for the ordinance, which was rejected by the State Court. The state court explained that the ordinance merely empowered officers to ask the suspected trespassers to leave the property. Maggit, 903 N.W.2d at 874.
VI. Both parties are entitled to partial summary judgment. Plaintiffs are entitled to summary judgment against Defendant City of Grand Rapids. Plaintiffs have demonstrated that the City has an unconstitutional policy or custom whereby police officers arrest individuals for trespassing on property covered by a no-trespass letter without first informing the suspect that he or she must leave the property. The individual defendants, however, are entitled to summary judgment on the basis of qualified immunity. At the time of the citations and arrests, it was not clearly established law what knowledge the officers must have before concluding that they had probable cause to arrest a suspect for violating the City's ordinance. Plaintiffs are not entitled to summary judgment on their claim that the City's no-trespass letter policy is unconstitutionally vague. As presented to the Court, Plaintiffs' theory is not supported by any law.
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ORDER

For the reasons provided in the accompanying Opinion, both sides have established

entitlement to partial summary judgment. Plaintiffs' motion for summary judgment (ECF

No. 149) is GRANTED IN PART and DENIED IN PART. Plaintiffs are entitled to

summary judgment on their municipal liability claim against Defendant City of Grand

Rapids. Plaintiffs are not entitled to summary judgment on their void-for-vagueness claim.

Because the individual defendants have established their qualified immunity defenses,

Plaintiffs' claims against the individual defendant are dismissed.

Defendants' motions for summary judgment are GRANTED IN PART and

DENIED IN PART:

1. Defendants City of Grand Rapids and Chief David Rahinsky's motion (ECF No.

161) is granted in part and Defendant Rahinsky, who is sued only in his official capacity, is

dismissed. The rest of the City's motion is denied.

2. Defendants Leonard and Rekucki's motion regarding Plaintiff Hightower (ECF

No. 162), Defendant Niemeyer's motion regarding Plaintiff McConer (ECF No. 163),

Defendant Leondard's motion regarding Plaintiff Brown (ECF No. 164), and Defendants

Niemeyer and Leonard's motion regarding Plaintiff Manyong (ECF No. 165) are granted in

part. The defendant officers are entitled to qualified immunity because the relevant law was

not clearly established at the time of the incidents.

IT IS SO ORDERED.

Date: October 17, 2018

/s/ Paul L. Maloney Paul L. Maloney United States District Judge

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 6/13/2020

United States District Court for the Western District of Michigan
Query Reports Utilities Help Log Out
CASESETTLED,CLOSED
United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:13-cv-00469-PLM

Hightower et al v. Grand Rapids, City of et al Assigned to: District Judge Paul L. Maloney Cause: 42:1983 Civil Rights Act
plaintiff Gilbert Weber TERMINATED: 08/04/2014

Date Filed: 05/01/2013 Date Terminated: 01/24/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Bryan J. Waldman Sinas Dramis Brake Boughton & McIntyre PC 3380 Pine Tree Rd. Lansing, MI 48911 (517) 394-7500 Email: bryanwaldman@sinasdramis.com ATTORNEY TO BE NOTICED
Daniel S. Korobkin ACLU Fund of Michigan (Detroit) 2966 Woodward Ave. Detroit, MI 48201-3035 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED
Jason Daniel Williamson American Civil Liberties Union 125 Broad St., 18th Fl. New York, NY 10004 (212) 284-7340 Email: jwilliamson@aclu.org ATTORNEY TO BE NOTICED
Julia Anne Kelly 130 Lakeside Dr., NE Grand Rapids, MI 49503 (714) 906-7519 Email: kellyjuliaanne@gmail.com ATTORNEY TO BE NOTICED
Marc Sebastian Allen ACLU of Michigan 1514 Wealthy St., SE, Ste. 242

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?236450065530868-L_1_0-1

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plaintiff Tyrone Hightower

United States District Court for the Western District of Michigan
Grand Rapids, MI 49506 (616) 301-0930 Email: mallen@aclumich.org TERMINATED: 08/03/2015 ATTORNEY TO BE NOTICED
Michael J. Steinberg ACLU Fund of Michigan (Detroit) 2966 Woodward Ave. Detroit, MI 48201-3035 (313) 578-6814 Email: mjsteinb@umich.edu TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman ACLU of Michigan 1514 Wealthy St., SE, Ste. 242 Grand Rapids, MI 49506 (616) 301-0930 Email: maukerman@aclumich.org ATTORNEY TO BE NOTICED
represented by Bryan J. Waldman (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Jason Daniel Williamson (See above for address) ATTORNEY TO BE NOTICED
Julia Anne Kelly (See above for address) ATTORNEY TO BE NOTICED
Marc Sebastian Allen (See above for address) TERMINATED: 08/03/2015 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?236450065530868-L_1_0-1

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plaintiff Kirk McConer
plaintiff Percy Brown

United States District Court for the Western District of Michigan
represented by Bryan J. Waldman (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Jason Daniel Williamson (See above for address) ATTORNEY TO BE NOTICED
Julia Anne Kelly (See above for address) ATTORNEY TO BE NOTICED
Marc Sebastian Allen (See above for address) TERMINATED: 08/03/2015 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan J. Waldman (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Jason Daniel Williamson (See above for address) ATTORNEY TO BE NOTICED
Julia Anne Kelly (See above for address) ATTORNEY TO BE NOTICED
Marc Sebastian Allen (See above for address) TERMINATED: 08/03/2015 ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?236450065530868-L_1_0-1

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plaintiff Jacob Manyong

United States District Court for the Western District of Michigan
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan J. Waldman (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Jason Daniel Williamson (See above for address) ATTORNEY TO BE NOTICED
Julia Anne Kelly (See above for address) ATTORNEY TO BE NOTICED
Marc Sebastian Allen (See above for address) TERMINATED: 08/03/2015 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED

V. defendant Grand Rapids, City of

represented by Anita L. Hitchcock Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 632-5720 TERMINATED: 08/30/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Lamar Poplar

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United States District Court for the Western District of Michigan
Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-3181 Email: apoplar@grand-rapids.mi.us TERMINATED: 11/05/2014 ATTORNEY TO BE NOTICED

Elizabeth J. Fossel Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-3099 Email: efossel@grcity.us ATTORNEY TO BE NOTICED

Elliot J. Gruszka Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-3496 Email: egruszka@silvervanessen.com ATTORNEY TO BE NOTICED

Kristen Lee Rewa Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-3181 Email: krewa@grcity.us ATTORNEY TO BE NOTICED

Patrick James Lannen Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-4026 Email: plannen@grcity.us TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED

Margaret P. Bloemers Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-4026 Email: mbloemer@ci.grand-rapids.mi.us TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED

defendant

David Rahinsky Grand Rapids Chief of Police TERMINATED: 10/17/2018

represented by Andre Lamar Poplar (See above for address) TERMINATED: 11/05/2014

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?236450065530868-L_1_0-1

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identiﬁed on initiating document as Kevin Belk TERMINATED: 10/17/2018

United States District Court for the Western District of Michigan
ATTORNEY TO BE NOTICED
Elizabeth J. Fossel (See above for address) ATTORNEY TO BE NOTICED

Elliot J. Gruszka (See above for address) ATTORNEY TO BE NOTICED

Kristen Lee Rewa (See above for address) ATTORNEY TO BE NOTICED

Patrick James Lannen (See above for address) TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED

defendant
John Guerrero Ofﬁcer, in his individual capacity TERMINATED: 08/04/2014

Margaret P. Bloemers (See above for address) TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED
represented by Andre Lamar Poplar (See above for address) TERMINATED: 11/05/2014 ATTORNEY TO BE NOTICED

Elizabeth J. Fossel (See above for address) ATTORNEY TO BE NOTICED

Elliot J. Gruszka (See above for address) ATTORNEY TO BE NOTICED

Kristen Lee Rewa (See above for address) ATTORNEY TO BE NOTICED

Patrick James Lannen (See above for address) TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED

Margaret P. Bloemers (See above for address) TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED

defendant

Thomas McCarthy

represented by Andre Lamar Poplar

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Ofﬁcer, in his individual capacity TERMINATED: 08/04/2014
defendant Gregory Rekucki Ofﬁcer, in his individual capacity TERMINATED: 10/17/2018

United States District Court for the Western District of Michigan
(See above for address) TERMINATED: 11/05/2014 ATTORNEY TO BE NOTICED
Elizabeth J. Fossel (See above for address) ATTORNEY TO BE NOTICED
Elliot J. Gruszka (See above for address) ATTORNEY TO BE NOTICED
Kristen Lee Rewa (See above for address) ATTORNEY TO BE NOTICED
Patrick James Lannen (See above for address) TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED
Margaret P. Bloemers (See above for address) TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED
represented by Andre Lamar Poplar (See above for address) TERMINATED: 11/05/2014 ATTORNEY TO BE NOTICED
Elizabeth J. Fossel (See above for address) ATTORNEY TO BE NOTICED
Elliot J. Gruszka (See above for address) ATTORNEY TO BE NOTICED
Kristen Lee Rewa (See above for address) ATTORNEY TO BE NOTICED
Patrick James Lannen (See above for address) TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED
Margaret P. Bloemers (See above for address) TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED

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defendant
Anthony Leonard Ofﬁcer, in his individual capacity TERMINATED: 10/17/2018

United States District Court for the Western District of Michigan
represented by Andre Lamar Poplar (See above for address) TERMINATED: 11/05/2014 ATTORNEY TO BE NOTICED
Elizabeth J. Fossel (See above for address) ATTORNEY TO BE NOTICED
Elliot J. Gruszka (See above for address) ATTORNEY TO BE NOTICED

Kristen Lee Rewa (See above for address) ATTORNEY TO BE NOTICED

Patrick James Lannen (See above for address) TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED

defendant
Thomas Niemeyer Ofﬁcer, in his individual capacity TERMINATED: 10/17/2018

Margaret P. Bloemers (See above for address) TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED
represented by Andre Lamar Poplar (See above for address) TERMINATED: 11/05/2014 ATTORNEY TO BE NOTICED
Elizabeth J. Fossel (See above for address) ATTORNEY TO BE NOTICED
Elliot J. Gruszka (See above for address) ATTORNEY TO BE NOTICED
Kristen Lee Rewa (See above for address) ATTORNEY TO BE NOTICED
Margaret P. Bloemers (See above for address) TERMINATED: 02/16/2017 ATTORNEY TO BE NOTICED
Patrick James Lannen (See above for address)

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United States District Court for the Western District of Michigan
TERMINATED: 02/04/2019 ATTORNEY TO BE NOTICED

Date Filed 05/01/2013
05/01/2013 05/01/2013 05/01/2013 05/01/2013 05/02/2013 05/14/2013 05/14/2013
05/14/2013 05/22/2013
05/22/2013 05/22/2013 05/22/2013 05/22/2013

# Docket Text
1 COMPLAINT with jury demand against All Defendants ﬁled by Gilbert Weber, Tyrone Hightower (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Letter of Intent to Prosecute Trespassers, # 3 Exhibit B1: Transcript, Grand Rapids v. Weber Transcript, # 4 Exhibit B2: Grand Rapids v. Weber Transcript, # 5 Exhibit C: Grand Rapids v. Weber Opinion, # 6 Exhibit D: Feb. 5, 2013 ACLU Letter)(Aukerman, Miriam) Modiﬁed text on 5/1/2013 (mrs). (Entered: 05/01/2013)
FILING FEE PAID re 1 by plaintiffs Tyrone Hightower, Gilbert Weber in the amount of $400, receipt number 0646-2562575 (Aukerman, Miriam) (Entered: 05/01/2013)
2 NOTICE that this case has been assigned to Chief Judge Paul L. Maloney (mrs) (Entered: 05/01/2013)
SUMMONS NOT ISSUED as to defendants Kevin Belk, City of Grand Rapids, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki - summonses were not provided (mrs) (Entered: 05/01/2013)
3 PROPOSED SUMMONS to be issued re 1 (Aukerman, Miriam) (Entered: 05/01/2013)
4 SUMMONS ISSUED as to defendants Kevin Belk, City of Grand Rapids, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki (bd) (Entered: 05/02/2013)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Michael J. Steinberg on behalf of plaintiffs Tyrone Hightower, Gilbert Weber (Steinberg, Michael) (Entered: 05/14/2013)
5 FIRST AMENDED COMPLAINT against All Defendants ﬁled by Gilbert Weber, Tyrone Hightower (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Letter of Intent to Prosecute Trespassers, # 3 Exhibit B: Afﬁdavit of Karamjit Singh, # 4 Exhibit C-1: City of Grand Rapids v. Weber Hearing Transcript, # 5 Exhibit C-2: City of Grand Rapids Hearing Transcript continued, # 6 Exhibit D: City of Grand Rapids v. Weber Opinion, # 7 Exhibit E: Feb. 5, 2013 ACLU Letter)(Aukerman, Miriam) (Entered: 05/14/2013)
6 PROOF OF SERVICE by plaintiffs Tyrone Hightower, Gilbert Weber (Aukerman, Miriam) (Entered: 05/14/2013)
7 WAIVER OF SERVICE returned executed by Grand Rapids, City of, Kevin Belk as to Grand Rapids, City of waiver sent on 5/13/2013, answer due 7/12/2013; Kevin Belk waiver sent on 5/13/2013, answer due 7/12/2013 (Bloemers, Margaret) (Entered: 05/22/2013)
8 WAIVER OF SERVICE returned executed by John Guerrero as to John Guerrero waiver sent on 5/13/2013, answer due 7/12/2013 (Bloemers, Margaret) (Entered: 05/22/2013)
9 WAIVER OF SERVICE returned executed by Thomas McCarthy as to Thomas McCarthy waiver sent on 5/13/2013, answer due 7/12/2013 (Bloemers, Margaret) (Entered: 05/22/2013)
10 WAIVER OF SERVICE returned executed by Gregory Rekucki as to Gregory Rekucki waiver sent on 5/13/2013, answer due 7/12/2013 (Bloemers, Margaret) (Entered: 05/22/2013)
11 WAIVER OF SERVICE returned executed by Anthony Leonard as to Anthony Leonard waiver sent on 5/13/2013, answer due 7/12/2013 (Bloemers, Margaret) (Entered:

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05/22/2013 05/22/2013 05/22/2013 07/12/2013 07/23/2013
08/13/2013 08/16/2013 08/21/2013 08/21/2013
08/22/2013 09/16/2013 09/19/2013
09/20/2013 09/23/2013

05/22/2013)

United States District Court for the Western District of Michigan

(NON-DOCUMENT) ATTORNEY APPEARANCE of Margaret P. Bloemers on behalf of defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki (Bloemers, Margaret) (Entered: 05/22/2013)

(NON-DOCUMENT) ATTORNEY APPEARANCE of Patrick James Lannen on behalf of defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki (Lannen, Patrick) (Entered: 05/22/2013)

(NON-DOCUMENT) ATTORNEY APPEARANCE of Kristen Lee Rewa on behalf of defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki (Rewa, Kristen) (Entered: 05/22/2013)

12 ANSWER to Amended Complaint,, 5 with afﬁrmative defenses and jury demand reliance by Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki(Rewa, Kristen) (Entered: 07/12/2013)

13 ORDER setting Rule 16 scheduling conference by telephone: telephone Rule 16 scheduling conference set for 8/21/2013 at 09:30 AM before Magistrate Judge Joseph G. Scoville; status report due by 8/16/2013 ; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 07/23/2013)

(NON-DOCUMENT) ATTORNEY APPEARANCE of Jason Daniel Williamson on behalf of plaintiffs Tyrone Hightower, Gilbert Weber (Williamson, Jason) (Entered: 08/13/2013)

14 JOINT STATUS REPORT submitted for ﬁling by plaintiffs Tyrone Hightower, Gilbert Weber (Aukerman, Miriam) (Entered: 08/16/2013)

15 MINUTES of scheduling conference by telephone held before Magistrate Judge Joseph G. Scoville (Proceedings not recorded) (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 08/21/2013)

16 CASE MANAGEMENT ORDER: discovery deadline 3/28/2014; dispositive motion deadline 5/12/2014; settlement conference set for 10/23/2013 at 01:30 PM at 740 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; ﬁnal pretrial conference set for 11/10/2014 at 09:30 AM at Kalamazoo, MI before Chief Judge Paul L. Maloney; jury trial set for 12/1/2014 at 08:45 AM at Kalamazoo, MI before Chief Judge Paul L. Maloney; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 08/21/2013)

17 PROOF OF SERVICE by plaintiffs Tyrone Hightower, Gilbert Weber regarding ﬁrst request for production of document and/or things (Williamson, Jason) Modiﬁed text on 8/23/2013 (mrs). (Entered: 08/22/2013)

18 NOTICE of Related Cases by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki (Rewa, Kristen) (Entered: 09/16/2013)

19 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki of Response to Plaintiffs' First Request for Production of Documents and/or Things to Defendant City of Grand Rapids (Bloemers, Margaret) (Entered: 09/19/2013)

20 PROOF OF SERVICE by plaintiffs Tyrone Hightower, Gilbert Weber of Plaintiffs' Initial Disclosures Under Rule 26(A)(1) (Aukerman, Miriam) (Entered: 09/20/2013)

21 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero,

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United States District Court for the Western District of Michigan
Anthony Leonard, Thomas McCarthy, Gregory Rekucki of Defendants' First Set of Interrogatories and Requests for Production of Documents to Weber and Hightower (Rewa, Kristen) (Entered: 09/23/2013)

09/24/2013

22 ORDER re 18 Notice of Related Cases; the Court has determined that this case is not related to WDMI case number 1:13-cv-653-RJJ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 09/24/2013)

09/27/2013

23 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki of Defendants' Initial Disclosures of Documents and Lay Witnesses Pursuant to Fed.R.Civ.P. 26(a)(1) (Rewa, Kristen) (Entered: 09/27/2013)

10/09/2013

24 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki of Supplemental Response to Plaintiffs' First Request for Production of Documents and/or Things to Defendant City of Grand Rapids and Defendants' Supplemental Disclosures of Documents and Lay Witnesses Pursuant to Fed.R.Civ.P. 26(a)(1) (Rewa, Kristen) (Entered: 10/09/2013)

10/10/2013

25 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki of Second Supplemental Response to Plaintiffs' First Request for Production of Documents and/or Things to Defendant City of Grand Rapids (Rewa, Kristen) (Entered: 10/10/2013)

10/22/2013

(NON-DOCUMENT) ATTORNEY APPEARANCE of Bryan J. Waldman on behalf of plaintiffs Tyrone Hightower, Gilbert Weber (Waldman, Bryan) (Entered: 10/22/2013)

10/22/2013

26 MOTION for leave to ﬁle Second Amended Complaint; with brief in support; by plaintiffs Tyrone Hightower, Gilbert Weber; (Attachments: # 1 Index of Exhibits, # 2 Exhibit A Proposed 2nd Amended Complaint, # 3 Exhibit B - Aukerman Declaration, # 4 Exhibit C - Proposed Exh. A to 2nd Amended Complaint, # 5 Exhibit D - Proposed Exhibit B to 2nd Amended Complaint, # 6 Exhibit E - Proposed Exhibit C-1 to 2nd Amended Complaint, # 7 Exhibit F - Proposed Exhibit C-2 to 2nd Amended Complaint, # 8 Exhibit G - Proposed Exhibit D to 2nd Amended Complaint, # 9 Exhibit H - Proposed Exhibit E to 2nd Amended Complaint, # 10 Exhibit I - Proposed Exhibit F to 2nd Amended Complaint, # 11 Exhibit J - Proposed Exhibit G to 2nd Amended Complaint)(Aukerman, Miriam) Modiﬁed text on 10/23/2013 (bd). (Entered: 10/22/2013)

10/23/2013

(NON-DOCUMENT) ORDER REFERRING MOTION for leave to ﬁle Second Amended Complaint 26 to Magistrate Judge Joseph G. Scoville pursuant to 28 U.S.C. 636(b)(1)(A) (Chief Judge Paul L. Maloney, acr) (Entered: 10/23/2013)

10/23/2013

27 NOTICE OF MOTION HEARING regarding plfs' motion for leave to ﬁle second amended complaint 26 : responses due by 11/8/2013; motion hearing is set for 11/13/2013 at 02:00 PM at 740 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 10/23/2013)

10/23/2013

28 MINUTES of settlement conference held before Magistrate Judge Joseph G. Scoville; Case did not settle; (Proceedings Not Recorded) (Magistrate Judge Joseph G. Scoville, dmh) (Entered: 10/23/2013)

10/24/2013

29 PROOF OF SERVICE by plaintiffs Tyrone Hightower, Gilbert Weber of Plaintiffs' Response to Defendants' First Set of Interrogatories and Requests for Production (Aukerman, Miriam) (Entered: 10/24/2013)

11/01/2013

30 STIPULATION by plaintiffs Tyrone Hightower, Gilbert Weber (Williamson, Jason) (Entered: 11/01/2013)

11/01/2013 31 (DISREGARD) Substituted Proposed Second AMENDED COMPLAINT against All

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United States District Court for the Western District of Michigan
Defendants ﬁled by Gilbert Weber, Tyrone Hightower (Attachments: # 1 Exhibit Proposed Exhibit A Blank Letter of Intent to Prosecute Trespassers, # 2 Exhibit Proposed Exhibit B Afﬁdavit of Karamjit Singh, # 3 Exhibit Proposed Exhibit C-1 Transcript, Hearing on Motion To Dismiss, # 4 Exhibit Proposed Exhibit C-2 Transcript, Hearing on Motion To Dismiss, # 5 Exhibit Proposed Exhibit D Opinion, Hearing on Motion To Dismiss)(Williamson, Jason) Modiﬁed text on 11/13/2013; document replaced by 36 per order 34 (mla). (Entered: 11/01/2013)

11/01/2013

32 (DISREGARD) Continued EXHIBIT re 31 Proposed Second Amended Complaint by plaintiffs Tyrone Hightower, Gilbert Weber (Attachments: # 1 Exhibit Proposed Exhibit E Feb. 5, 2013 ACLU Letter, # 2 Exhibit Proposed Exhibit F Trespass Letter of Authorization, # 3 Exhibit Proposed Exhibit G Conditions of Entry Sign, # 4 Exhibit Proposed Exhibit H Map and Parcel Information for 2000 & 2004 Division Avenue, from Access Kent Property Information System website, # 5 Index Index)(Williamson, Jason) Modiﬁed text on 11/13/2013; document replaced by 37 per order 34 (mla). (Entered: 11/01/2013)

11/07/2013

33 PROPOSED STIPULATION and ORDER to Second Amendment of Complaint and Joinder of Additional Parties by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki (Bloemers, Margaret) (Entered: 11/07/2013)

11/08/2013

(NON-DOCUMENT) ORDER REFERRING PROPOSED STIPULATION and ORDER to Second Amendment of Complaint and Joinder of Additional Parties by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Gregory Rekucki 33 to Magistrate Judge Joseph G. Scoville pursuant to 28 U.S.C. 636(b) (1)(A)(Chief Judge Paul L. Maloney, acr) (Entered: 11/08/2013)

11/12/2013

34 ORDER granting STIPULATION 33 to Second Amendment of Complaint and Joinder of Additional Parties; hearing on motion to amend 26 set for 11/13/2013 at 2:00 p.m. is CANCELED; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 11/12/2013)

11/12/2013

35 PROOF OF SERVICE by defendant Grand Rapids, City of 3rd Supplemental Response to Pls' First Request for Prodcution of Documents to Defendant City (Rewa, Kristen) (Entered: 11/12/2013)

11/12/2013

36 (SUBSTITUTED) SECOND AMENDED COMPLAINT against All Defendants ﬁled by Gilbert Weber (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C-1, # 5 Exhibit C-2)(Williamson, Jason) Modiﬁed text on 11/13/2013 (mla) Modiﬁed text on 8/6/2014 (kvt). (Entered: 11/12/2013)

11/12/2013

37 Continued EXHIBIT re 36 Substituted Second Amended Complaint by plaintiffs Tyrone Hightower, Gilbert Weber (Attachments: # 1 Exhibit Exhibit D, # 2 Exhibit Exhibit E, # 3 Exhibit Exhibit F, # 4 Exhibit Exhibit G, # 5 Exhibit Exhibit H)(Williamson, Jason) (Entered: 11/12/2013)

11/13/2013 38 PROPOSED SUMMONS to be issued re 36 (Aukerman, Miriam) (Entered: 11/13/2013)

11/13/2013 39 SUMMONS ISSUED as to defendant Thomas Niemeyer (mrs) (Entered: 11/13/2013)

11/13/2013

40 CERTIFICATE OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber re notice of deposition (Williamson, Jason) Modiﬁed text on 11/14/2013 (mrs). (Entered: 11/13/2013)

11/14/2013

41 NOTICE to attorney Jason Daniel Williamson regarding recent ﬁling 40 (mrs) (Entered: 11/14/2013)

11/22/2013 42 SUMMONS returned executed; Thomas Niemeyer served on 11/18/2013, answer due

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11/26/2013 12/03/2013 12/03/2013

United States District Court for the Western District of Michigan
12/9/2013 (Aukerman, Miriam) (Entered: 11/22/2013)
43 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Disclosure of Expert Witness (Williamson, Jason) (Entered: 11/26/2013)
44 MOTION to dismiss for lack of jurisdiction by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki; (Rewa, Kristen) (Entered: 12/03/2013)
45 BRIEF in support of MOTION to dismiss for lack of jurisdiction 44 ﬁled by Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki (Attachments: # 1 Exhibit 1 - Afﬁdavit, # 2 Exhibit 2, # 3 Exhibit 3)(Rewa, Kristen) (Entered: 12/03/2013)

12/03/2013

46 ANSWER to Amended Complaint, 36 with afﬁrmative defenses and jury demand by Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki(Rewa, Kristen) (Entered: 12/03/2013)

12/11/2013

47 PROPOSED STIPULATION and ORDER to extend time for response by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Aukerman, Miriam) Modiﬁed text on 12/11/2013 (mrs). (Entered: 12/11/2013)

12/11/2013

48 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Amended Initial Disclosures under Rule 26(A)(1) (Aukerman, Miriam) (Entered: 12/11/2013)

12/11/2013

49 ORDER approving STIPULATION 47 ; the deadline for plaintiffs to ﬁle a response to defendants' motion to dismiss is extended to 1/14/2014; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 12/11/2013)

12/16/2013

50 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' First Set of Interrogatories and Requests for Production of Documents Directed to Percy Brown, Kirk McConer and Jacob Manyong (Lannen, Patrick) (Entered: 12/16/2013)

12/17/2013 12/20/2013

51 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendant City of Grand Rapids' Objections to Plaintiffs' Notice of Deposition Pursuant to Rule 30(B)(6), Dated 11/13/13 (Rewa, Kristen) (Entered: 12/17/2013)
52 PROPOSED STIPULATION and ORDER to Extend Time for Disclosure of Defense Experts by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki, plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Bloemers, Margaret) (Entered: 12/20/2013)

12/20/2013

53 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Second Supplemental Disclosure of Documents and Lay Witnesses Pursuant to Fed.R.Civ.P. 26(a)(1) (Rewa, Kristen) (Entered: 12/20/2013)

12/20/2013

(NON-DOCUMENT) ATTORNEY APPEARANCE of Patrick James Lannen on behalf of defendant Thomas Niemeyer (Lannen, Patrick) (Entered: 12/20/2013)

12/20/2013

54 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber of ﬁling Plaintiffs' Supplemental Request for Production (Aukerman, Miriam) (Entered: 12/20/2013)

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12/23/2013
12/23/2013 01/03/2014 01/03/2014 01/10/2014 01/10/2014 01/10/2014 01/10/2014 01/10/2014 01/14/2014
01/15/2014

United States District Court for the Western District of Michigan
(NON-DOCUMENT) ORDER REFERRING PROPOSED STIPULATION and ORDER to Extend Time for Disclosure of Defense Experts by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki, and all plaintiffs 52 to Magistrate Judge Joseph G. Scoville pursuant to 28 U.S.C. 636(b)(1)(A)(Chief Judge Paul L. Maloney, acr) (Entered: 12/23/2013)
55 ORDER granting STIPULATION 52 to Extend Time For Disclosure of Defense Experts; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 12/23/2013)
56 PROOF OF SERVICE by defendant Grand Rapids, City of Designation and objections to Pls' notice of Rule 30(b)(6) deposition (Rewa, Kristen) (Entered: 01/03/2014)
57 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki Defs' 2nd Request for Production of Documents on Pls Weber, Hightower, and McConer (Rewa, Kristen) (Entered: 01/03/2014)
58 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' First Rrequest for Production of Documents Directed to Defendant Thomas Niemeyer (Rewa, Kristen) (Entered: 01/10/2014)
59 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' First Request for Production of Documents Directed to Defendant John Guerrero (Rewa, Kristen) (Entered: 01/10/2014)
60 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' First Request for Production of Documents Directed to Defendant Anthony Leonard (Rewa, Kristen) (Entered: 01/10/2014)
61 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' First Request for Production of Documents Directed to Defendant Gregory Rekucki (Rewa, Kristen) (Entered: 01/10/2014)
62 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' First Request for Production of Documents Directed to Defendant Thomas McCarthy (Rewa, Kristen) (Entered: 01/10/2014)
63 MOTION for leave to ﬁle excess pages for Brief in Response to Defendants' Motion to Dismiss by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber; (Attachments: # 1 Exhibit A: Proposed Brief in Opposition to Defendants' Motion to Dismiss, # 2 Index of Exhibits to Proposed Brief, # 3 Exhibit 1: Weber incident report, # 4 Exhibit 2: McConer incident report, # 5 Exhibit 3: Hightower incident report, # 6 Exhibit 4: Brown incident report, # 7 Exhibit 5: Manyong incident report)(Aukerman, Miriam) (Entered: 01/14/2014)
64 EXHIBIT re 69 6: Tylor Shipp afﬁdavit by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Attachments: # 1 Exhibit 7: Kristy Garrison afﬁdavit, # 2 Exhibit 8: Tabitha Edmonds afﬁdavit, # 3 Exhibit 9: 2011/2013 No Trespass Letter, # 4 Exhibit 10: April 2013 No Trespass Letter, # 5 Exhibit 11: June 2013 No Trespass Letter, # 6 Exhibit 12: Jerry Clay Declaration)(Aukerman, Miriam) Modiﬁed relationship and ﬁle date per Order 67 on 1/16/2014 (mrs). (Entered: 01/14/2014)

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01/15/2014 01/15/2014 01/15/2014 01/15/2014
01/16/2014 01/17/2014 01/22/2014 01/27/2014 01/27/2014 01/28/2014

United States District Court for the Western District of Michigan
65 EXHIBIT re 69 13: Maycroft email 5.22.13 by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Attachments: # 1 Exhibit 14: Maycroft email 8.21.13, # 2 Exhibit 15: GRPDTraining Bulletin, # 3 Exhibit 16: GRPD Southside News Bulletin, # 4 Exhibit 17: Tonich email 10.24.11, # 5 Exhibit 18: Whitman email 7.31.09, # 6 Exhibit 19: Conditions of Entry sign, # 7 Exhibit 20: Protect Your Property Pamphlet, # 8 Exhibit 21: Grand Rapids Ordinance 9.133, # 9 Exhibit 22: Grand Rapids v. Weber, # 10 Exhibit 23: Nagtzaam email 11.6.12, # 11 Exhibit 24: Lekowski email 7.6.11)(Aukerman, Miriam) Modiﬁed relationship and ﬁle date per Order 67 on 1/16/2014 (mrs). (Entered: 01/14/2014)
66 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Re-Notices of Depositions of Ofﬁcers Niemeyer, Guerrero, Leonard, McCarthy and Rekucki, and Responses to First Set of Interrogatories and RFPs for McConer, Manyong and Brown (Aukerman, Miriam) (Entered: 01/15/2014)
67 ORDER granting 63 motion for leave to ﬁle excess pages; the Clerk of Court shall accept the proposed brief for ﬁling; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 01/15/2014)
68 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber AMENDED (Doc 66) Re-Notices of Depositions of Ofﬁcers Niemeyer, Guerrero, Leonard, McCarthy and Rekucki, and Responses to First Set of Interrogatories and RFPs for McConer, Manyong and Brown, and Plaintiff McConer's Response to 2nd Request for Documents (Aukerman, Miriam) (Entered: 01/15/2014)
69 RESPONSE in opposition to MOTION to dismiss for lack of jurisdiction 44 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1: Weber incident report, # 3 Exhibit 2: McConer incident report, # 4 Exhibit 3: Hightower incident report, # 5 Exhibit 4: Brown incident report, # 6 Exhibit 5: Manyong incident report)(mrs) Modiﬁed on 1/16/2014; see docket entries 64 and 65 for additional exhibits (mrs). Modiﬁed text on 1/23/2014 (mla) (Entered: 01/16/2014)
70 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Second Amended Initial Disclosures Under Rule 26(A)(1) (Aukerman, Miriam) (Entered: 01/16/2014)
71 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiff Weber's Supplemental Responses to Defendants' First Set of Interrogatories and Request for Production, and Plaintiff Weber's Resposne to Defendants' Second Request for Documents (Aukerman, Miriam) (Entered: 01/17/2014)
72 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' Supplemental Request for Production of Documents and/or Things to Defendant City of Grand Rapids (Rewa, Kristen) (Entered: 01/22/2014)
73 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Deposition Notices: Police Chief Belk, Lt. Lind, Lt. Maycroft (Aukerman, Miriam) (Entered: 01/27/2014)
74 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Notice of Taking Deposition of Plaintiff Percy Brown (Lannen, Patrick) (Entered: 01/27/2014)
75 REPLY to response to motion 44 ﬁled by Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki

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(Attachments: # 1 Attachment A, # 2 Attachment B)(Rewa, Kristen) (Entered: 01/28/2014)

01/29/2014

76 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Deposition Re-Notice for Police Chief Kevin Belk (Aukerman, Miriam) (Entered: 01/29/2014)

01/29/2014 01/29/2014 01/29/2014

77 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Expert Witness Disclosure (Rewa, Kristen) (Entered: 01/29/2014)
78 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs Third Amended Initial Disclosures Under Rule 26(A)(1) (Aukerman, Miriam) (Entered: 01/29/2014)
79 STIPULATION To Extend Discovery Deadlines by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Williamson, Jason) (Entered: 01/29/2014)

01/30/2014

80 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of First Supplemental Response to Plaintiffs' Supplemental Request for Production of Documents and/or Things to Defendant City of Grand Rapids (Rewa, Kristen) (Entered: 01/30/2014)

01/30/2014
02/06/2014 02/10/2014 02/12/2014

81 ORDER approving STIPULATION 79 ; discovery deadline extended to 7/31/2014; dispositive motions deadline extended to 9/30/2014; ﬁnal pretrial conference and trial dates are adjourned to dates to be determined; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) Modiﬁed text on 1/31/2014 (acr). (Entered: 01/30/2014)
82 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Notice of Deposition of Police Captain Curtis Vanderkooi (Aukerman, Miriam) (Entered: 02/06/2014)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Julia Anne Kelly on behalf of plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Kelly, Julia) (Entered: 02/10/2014)
83 PROOF OF SERVICE by plaintiff Tyrone Hightower Response to Second Request for Production of Documents (Aukerman, Miriam) (Entered: 02/12/2014)

02/13/2014

(NON-DOCUMENT) ATTORNEY APPEARANCE of Andre Lamar Poplar on behalf of defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki (Poplar, Andre) (Entered: 02/13/2014)

02/26/2014 02/27/2014 02/28/2014

84 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Combined Response to Plaintiffs' Request for Production of Documents Directed to Rule 30(B)(6) Designees Chief Belk, Lt. Lind, and Lt. Maycroft (Rewa, Kristen) (Entered: 02/26/2014)
85 PROPOSED STIPULATION and ORDER to extend time to ﬁle expert report by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Aukerman, Miriam) (Entered: 02/27/2014)
(NON-DOCUMENT) ORDER REFERRING PROPOSED STIPULATION and ORDER to extend time to ﬁle expert report by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber 85 to Magistrate Judge Joseph G. Scoville pursuant to 28 U.S.C. 636(b)(1)(A)(Chief Judge Paul L. Maloney, acr) (Entered: 02/28/2014)

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04/15/2014

United States District Court for the Western District of Michigan
86 ORDER granting STIPULATION 85 for extension of time until 3/5/2014 to submit plf's expert report; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 02/28/2014)
87 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Third Supplemental Disclosures of Documents and Lay Wintesses Pursuant to Fed.R.Civ.P. 26(a)(1) (Rewa, Kristen) (Entered: 03/03/2014)
88 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Re-Notices of Depositions of Ofﬁcer Rekucki and Captain VanderKooi (Aukerman, Miriam) (Entered: 03/04/2014)
89 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Expert Report of Frank R. Baumgartner (Aukerman, Miriam) (Entered: 03/05/2014)
90 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Response to Plaintiffs' request for Production of Documents Directed to Captain Curtis Vanderkooi (Rewa, Kristen) (Entered: 03/10/2014)
91 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Notice of Taking Deposition of Plaintiff Jacob Manyong (Lannen, Patrick) (Entered: 03/11/2014)
92 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' First Requests for Admissions (Aukerman, Miriam) (Entered: 03/11/2014)
93 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Amended Notice of Taking Deposition of Plaintiff Jacob Manyong (Video & Location Change) (Lannen, Patrick) (Entered: 03/13/2014)
94 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki City's 4th Supp Resp to Pls' 1st RFP and Defs' 4th Supp to Rule 26 Discl (Rewa, Kristen) (Entered: 03/14/2014)
95 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Second Request for Admissions, Third Supplemental Request for Productions, Fourth Supplemental Initial Disclosures, and Bates Documents 161-186 (via email) (Aukerman, Miriam) (Entered: 03/28/2014)
96 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Responses to Plaintiffs' Requests for Admissions (Rewa, Kristen) (Entered: 04/10/2014)
97 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Second Supplemental Response to Plaintiffs' Supplemental Request for Production of Documents and/or Things to Defendant City of Grand Rapids Dated 12/20/13 (Rewa, Kristen) (Entered: 04/15/2014)
98 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki Defendants'

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Fifth Supplemental Disclosure of Documents and Lay Witnesses Pursuant to Fed.R.Civ.P. 26(a)(1) (Rewa, Kristen) (Entered: 04/15/2014)

04/17/2014

99 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki Notice of Depostions of McConer, Hightower & Weber (Poplar, Andre) (Entered: 04/17/2014)

04/28/2014

100 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Responses to Plaintiffs' Second Requests for Admissions (Rewa, Kristen) (Entered: 04/28/2014)

04/28/2014

101 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of City's Response to Pls' 3rd Supp Request for Production of Documents/Things to Def City (Rewa, Kristen) (Entered: 04/28/2014)

04/30/2014

102 PROPOSED STIPULATION and ORDER to Modify Case Management Order by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki (Rewa, Kristen) (Entered: 04/30/2014)

05/01/2014

(NON-DOCUMENT) ORDER REFERRING PROPOSED STIPULATION and ORDER to Modify Case Management Order by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki 102 to Magistrate Judge Joseph G. Scoville pursuant to 28 U.S.C. 636(b)(1)(A) (Chief Judge Paul L. Maloney, acr) (Entered: 05/01/2014)

05/02/2014

103 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Sixth Supplemental Disclosure of Documents and Lay Witnesses Pursuant to Fed.R.Civ.P. 26(1)(1) (Rewa, Kristen) (Entered: 05/02/2014)

05/06/2014

104 ORDER granting STIPULATION 102 to modify case management order; extending deadlines: defts' expert witness reports due 6/27/2014; discovery deadline 8/29/2014; dispositive motion deadline 9/30/2014; ﬁnal pretrial conference before Chief Judge Maloney set for 4/20/2015 at 10:00 a.m. in Kalamazoo, Michigan; jury trial set for 5/12/2015 at 8:45 a.m. before Chief Judge Maloney; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 05/06/2014)

05/08/2014

105 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Re-Notice of Taking Deposition of Plaintiff Gilbert Weber on May 14, 2014, 10:00 AM (Lannen, Patrick) (Entered: 05/08/2014)

05/08/2014

106 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Fourth Supplemental Request for Production of Documents and/or Things, and Fifth Amended Initial Disclosures Under Rule 26(A)(1) (Aukerman, Miriam) (Entered: 05/08/2014)

05/14/2014 107 PROOF OF SERVICE by defendant Grand Rapids, City of City's 1st Supp Resp to Pls' 3rd RPD (Rewa, Kristen) (Entered: 05/14/2014)

05/20/2014

108 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Request for Admissions, Third Request for Production of Documents to Tyrone Hightower, Fourth Request for Production of Documents to Weber, McConer, Brown and Manyong (Lannen, Patrick) (Entered: 05/20/2014)

06/06/2014 109 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendant

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06/19/2014
06/27/2014 07/01/2014 07/07/2014 07/10/2014 07/17/2014 07/29/2014 07/30/2014 07/30/2014 07/31/2014
07/31/2014

United States District Court for the Western District of Michigan
City of Grand Rapids' Response to Plaintiffs' Fourth Supplemental Request for Production of Documents and/or Things to Defendant City of Grand Rapids (Rewa, Kristen) (Entered: 06/06/2014)
110 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiff Hightower's Response to Defendants' Third Request for Production of Documents, Plaintiff Hightower's Response to Request for Admissions, and Plaintiffs' Responses to Defendants' Fourth Request for Production of Documents Directed to Plaintiffs Gilbert Weber, Kirk McConer, Percy Brown, and Jacob Manyong (Aukerman, Miriam) (Entered: 06/19/2014)
111 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki Expert Witness Reports (Rewa, Kristen) (Entered: 06/27/2014)
112 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki First Supplemental Response to Plaintiffs Fourth Supplemental Request for Production of Documents and/or Things (Rewa, Kristen) (Entered: 07/01/2014)
113 PROOF OF SERVICE by plaintiff Kirk McConer Plaintiff Kirk McConer's First Supplemental Response to Defendants' First Set of Interrogatories and Requests for Production of Documents (Aukerman, Miriam) (Entered: 07/07/2014)
114 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Notice of Deposition of Lt. David Schnurstein and Plaintiffs' Fifth Supplemental Request for Production of Documents (Aukerman, Miriam) (Entered: 07/10/2014)
115 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Amended Notice of the Deposition of Lt. David Schnurstein (Aukerman, Miriam) (Entered: 07/17/2014)
116 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Fifth Supplemental Requests for Production of Documents and/or Things to Defendant City of Grand Rapids, and Notice of Deposition of Dr. John C. Lamberth (Aukerman, Miriam) (Entered: 07/29/2014)
117 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Seventh Supplemental Disclosure of Lay Witnesses Pursuant to FRCP 26(a) (1) and (3)(A)(i)-(iii) (Lannen, Patrick) (Entered: 07/30/2014)
118 PROOF OF SERVICE by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki of Defendants' Request for Production of Expert Witness Documents Directed to Plaintiffs (Rewa, Kristen) (Entered: 07/30/2014)
119 MOTION to substitute party Police Chief David Rahinsky; with brief in support; by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber; (Attachments: # 1 Proposed Order Proposed Order for Substitution of Grand Rapids Police Chief David Rahinsky for Defendant Kevin Belk)(Aukerman, Miriam) Modiﬁed text on 8/4/2014 (bd). (Entered: 07/31/2014)
120 PROPOSED STIPULATION and ORDER to Extend Time to Depose Expert Witness and File Dispositive Motions by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki (Attachments: # 1 Exhibit A)(Rewa, Kristen) (Entered: 07/31/2014)

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08/01/2014

United States District Court for the Western District of Michigan
121 PROPOSED STIPULATION and ORDER to Dismiss Plaintiff Gilbert Weber's Claims Against Defendants John Guerrero, Thomas McCarthy and the City of Grand Rapids by defendants Kevin Belk, Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, Gregory Rekucki (Bloemers, Margaret) (Entered: 08/01/2014)

08/04/2014 122 RESPONSE in opposition to MOTION to substitute party Police Chief David Rahinsky 119 ﬁled by Grand Rapids, City of (Rewa, Kristen) (Entered: 08/04/2014)

08/04/2014

123 ORDER approving STIPULATION to extend deadlines 120 ; the deadline for discovery deposition of defendants' expert is extended to 9/4/2014; the deadline to ﬁle dispositive motions is extended to 10/14/2014; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 08/04/2014)

08/04/2014

124 STIPULATION AND ORDER to dismiss plaintiff Weber's claims against certain defendants; plaintiff Weber's claims against defendants John Guerrero, Thomas McCarthy, and the City of Grand Rapids, only, are dismissed with prejudice and without costs or attorney fees to any party; defendant City of Grand Rapids remains as a defendant as to remaining plaintiffs; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 08/04/2014)

08/04/2014

125 ORDER granting 119 motion to substitute party; defendant Kevin Belk is substituted by Grand Rapids Chief of Police David Rahinsky; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 08/04/2014)

08/05/2014

126 PROOF OF SERVICE by plaintiff Kirk McConer Plaintiff Kirk McConer's Second Supplemental response to Defendants' First Set of Interrogatories and Requests for Production of Documents (Aukerman, Miriam) (Entered: 08/05/2014)

08/07/2014

127 PROOF OF SERVICE by plaintiff Tyrone Hightower Plaintiff Tyrone Hightower's Second Supplemental Response to Defendants' First Set of Interrogatories and Requests for Production of Documents (Aukerman, Miriam) Modiﬁed text on 9/9/2014 (kvt). (Entered: 08/07/2014)

08/11/2014

128 PROOF OF SERVICE by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki Resp to Pls' 5th Supp Request for Production of Documents (Rewa, Kristen) (Entered: 08/11/2014)

08/12/2014

129 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Supplemental Analysis of Trespass Stops in Grand Rapids, Michigan, 2011-2013 (Aukerman, Miriam) (Entered: 08/12/2014)

08/13/2014

130 PROOF OF SERVICE by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki of Defendants' Partial Response to Plaintiffs' Sixth Supplemental Request for Production of Documents (Rewa, Kristen) (Entered: 08/13/2014)

08/18/2014

131 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer re Notice of Deposition of Dr. John C. Lamberth (Williamson, Jason) Modiﬁed text on 8/18/2014 (mrs). (Entered: 08/18/2014)

08/26/2014

132 PROOF OF SERVICE by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki of Defendants' Response to Plaintiffs' Sixth Supplemental Request for Production of Documents (Rewa, Kristen) (Entered: 08/26/2014)

08/28/2014

133 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Response to Defendants' Request for Production of Expert Witness Documents (Aukerman, Miriam) (Entered: 08/28/2014)

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10/14/2014

United States District Court for the Western District of Michigan
134 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Addendum to Plaintiffs Response to Defendants Request for Production of Expert Witness Documents (Aukerman, Miriam) (Entered: 08/29/2014)
135 PROOF OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber Plaintiffs' Sixth Amended Initial Disclosures Under Rule 26(A)(1) (Aukerman, Miriam) (Entered: 09/02/2014)
136 CERTIFICATE OF SERVICE by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber regarding addendum to Supplemental Analysis of Trespass Stops in Grand Rapids, MI, 3011-2013 (Steinberg, Michael) Modiﬁed text on 9/4/2014 (mrs). (Entered: 09/04/2014)
137 PROOF OF SERVICE by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki of 1st Supp Resp to 6th Supp Req for Prod; 2nd Supp Resp to 4th Supp Req for Prod and 8th Supp Disclosure (Rewa, Kristen) (Entered: 09/18/2014)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Marc Sebastian Allen on behalf of plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Allen, Marc) (Entered: 09/26/2014)
138 MOTION for leave to ﬁle excess pages and Limit Summary Judgment Brieﬁng to 50 Pages by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer; (Attachments: # 1 Proposed Order)(Williamson, Jason) (Entered: 10/07/2014)
(NON-DOCUMENT) ORDER REFERRING MOTION for leave to ﬁle excess pages and Limit Summary Judgment Brieﬁng to 50 Pages 138 to Magistrate Judge Phillip J. Green pursuant to 28 U.S.C. 636(b)(1)(A) (Chief Judge Paul L. Maloney, acr) (Entered: 10/08/2014)
139 NOTICE OF MOTION HEARING regarding document number 138 : motion hearing is set for 10/14/2014 at 02:00 PM at 740 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; (Magistrate Judge Phillip J. Green, jkw) (Entered: 10/08/2014)
140 PROPOSED STIPULATION and ORDER to Exceed Page Limits Regarding Motion to Strike Plaintiff's Expert by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Rewa, Kristen) (Entered: 10/13/2014)
141 RESPONSE in opposition to MOTION for leave to ﬁle excess pages and Limit Summary Judgment Brieﬁng to 50 Pages 138 ﬁled by Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Bloemers, Margaret) (Entered: 10/13/2014)
142 RESPONSE TO MOTION for leave to ﬁle excess pages and Limit Summary Judgment Brieﬁng to 50 Pages 138 In Partial Opposition ﬁled by Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Bloemers, Margaret) (Entered: 10/13/2014)
(NON-DOCUMENT) ORDER REFERRING PROPOSED STIPULATION and ORDER to Exceed Page Limits Regarding Motion to Strike Plaintiff's Expert by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki 140 to Magistrate Judge Phillip J. Green pursuant to 28 U.S.C. 636(b)(1)(A) (Chief Judge Paul L. Maloney, acr) (Entered: 10/14/2014)
143 ORDER granting in part and denying in part 138 motion for leave to ﬁle excess pages; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw)

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(Entered: 10/14/2014)

10/14/2014

144 ORDER granting in part and denying in part STIPULATION to Exceed Page Limits on Briefs Regarding Motions to Strike Expert Witnesses 140 ; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw) (Entered: 10/14/2014)

10/14/2014

145 MINUTES held before Magistrate Judge Phillip J. Green; motion hearing re 138 Plaintiffs' MOTION for leave to ﬁle excess pages and Limit Summary Judgment Brieﬁng to 50 Pages; counsel also heard on 140 PROPOSED STIPULATION and ORDER to Exceed Page Limits Regarding Motion to Strike Plaintiff's Expert; Motion and Proposed Stipulation granted in part and denied in part; Order to issue; (Proceedings Digitally Recorded) (Magistrate Judge Phillip J. Green, dmh) (Entered: 10/14/2014)

10/16/2014 146 MOTION to strike Plaintiffs' Expert by defendants Grand Rapids, City of, David Rahinsky; (Rewa, Kristen) (Entered: 10/16/2014)

10/16/2014

147 BRIEF in support of MOTION to strike Plaintiffs' Expert 146 ﬁled by Grand Rapids, City of, David Rahinsky (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit B-1, # 5 Exhibit B-2, # 6 Exhibit B-3, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I)(Rewa, Kristen) Modiﬁed text on 10/17/2014 (bd). (Entered: 10/16/2014)

10/20/2014

148 MOTION to strike Defendants' Expert with Brief in Suppot by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer; (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11)(Williamson, Jason) Modiﬁed text on 10/21/2014 (mrs). (Entered: 10/20/2014)

10/21/2014 149 MOTION for summary judgment by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer; (Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

150 BRIEF in support of MOTION for summary judgment 149 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1: Grand Rapids Ordinance, # 3 Exhibit 2: 2011 NTL, # 4 Exhibit 3: April 2013 NTL, # 5 Exhibit 4: June 2013 NTL, # 6 Exhibit 5: Conditions of Entry Sign, # 7 Exhibit 6: Protect Your Property Pamphlet, # 8 Exhibit 7: Field Training Manual, # 9 Exhibit 8: Trespass Database Screenshots, # 10 Exhibit 9: List of NTLs)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

151 EXHIBIT re 149 10: Hightower Deposition Excerpts by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 11: Cheero's Map Marked by Hightower, # 2 Exhibit 12: McConer Deposition Excerpts, # 3 Exhibit 13: Rau's Photo Marked by McConer, # 4 Exhibit 14: Photo Marked by McConer, # 5 Exhibit 15: McConer Injury Photos, # 6 Exhibit 16: Business Patrons Only Sign)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

152 EXHIBIT re 149 17:Photo of Rau's Entrance by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 18: Rau's Map Marked by McConer, # 2 Exhibit 19: Manyong Deposition Excerpts, # 3 Exhibit 20: Photo Marked by Manyong, # 4 Exhibit 21: Brown Deposition Excerpts, # 5 Exhibit 22: Cheero's Photo Marked by Brown, # 6 Exhibit 23: Photo of Entrance, # 7 Exhibit 24: Belk Deposition Excerpts, # 8 Exhibit 25: Lind Deposition Excerpts, # 9 Exhibit 26: Training Bulletin, # 10 Exhibit 27: Maycroft Deposition Excerpts)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

153 EXHIBIT re 149 28: SchnursteinDeposition Excerpts by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 29: Vanderkooi Deposition Excerpts, # 2 Exhibit 30: Vanderkooi Emails, # 3 Exhibit 31: Leonard

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United States District Court for the Western District of Michigan
Deposition Excerpts, # 4 Exhibit 32: Photo Marked by Leonard, # 5 Exhibit 33: Robbins Lock Map Marked by Leonard, # 6 Exhibit 34: Cheero's Map Marked by Leonard, # 7 Exhibit 35: Rekucki Deposition Excerpts, # 8 Exhibit 37: Niemeyer Deposition Excerpts, # 9 Exhibit Map of Raus, # 10 Exhibit 39: McCarthy Deposition Excerpts)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

154 EXHIBIT re 149 40: Guerrero Deposition Excerpts by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 41: Baumgartner Expert Report, # 2 Exhibit 42: Baumgartner Supplemental Report, # 3 Exhibit 43: Baumgartner Addendum to Supplemental Report, # 4 Exhibit 44: Lamberth Expert Report, # 5 Exhibit 45: Hightower Incident Report, # 6 Exhibit 46: Hightower Docket, # 7 Exhibit 47: McConer Incident Report, # 8 Exhibit 48: McConer Use of Force Report, # 9 Exhibit 49: McConer Docket, # 10 Exhibit 50: Brown Incident Report)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

155 EXHIBIT re 149 51: Brown Docket by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 52: Manyong Incident Report, # 2 Exhibit 53: Manyong Docket 2012-OM-583, # 3 Exhibit 54: Manyong Docket 2012-OI528697, # 4 Exhibit 56: Weber Opinion, # 5 Exhibit 57: Weber Transcript, # 6 Exhibit 58: Rau's NTL, # 7 Exhibit 59: Robbins Lock Map, # 8 Exhibit 61: Robbins Lock NTL, # 9 Exhibit 62: Clay Declaration, # 10 Exhibit 63: Shipp Declaration)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

156 EXHIBIT re 149 64: Garrison Declaration by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 65: Edmonds Declaration, # 2 Exhibit 66: Potyraj Declaration, # 3 Exhibit 67: Martinez Declaration, # 4 Exhibit 68: Martinez Internal Affairs Complaint, # 5 Exhibit 70: Southside Bulletin, # 6 Exhibit 71: Maycroft 3/21/13 Email, # 7 Exhibit 72: Maycroft 5/22/13 Email, # 8 Exhibit 73: Maycroft 8/21/13 Email, # 9 Exhibit 74: Tomich 10/24/11 Email, # 10 Exhibit 75: Whitman 7/31/09 Email)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

157 EXHIBIT re 149 77: Lekowski 7/26/11 Email by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 78: Chart of Defendant Deposition Responses, # 2 Exhibit 80: Savage 10/11/12 Email, # 3 Exhibit 81: Savage 11/12/12 Email, # 4 Exhibit 82: Heikkila 11/23/12 Email, # 5 Exhibit 83: Nawrocki Email, # 6 Exhibit 84: Stevens/Payne Emails, # 7 Exhibit 85: Sergeant's Training, # 8 Exhibit 86: VanderKooi Afﬁdavit, # 9 Exhibit 87: Price Letter, # 10 Exhibit 88: Defendants' Admissions)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

158 EXHIBIT re 149 89: Manyong Video Transcript Excerpts by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014 159 EXHIBIT re 149 90: Hightower Video Transcript by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014

160 EXHIBIT re 149 91: City Response to ACLU FOIA by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Exhibit 92: Lind 1/14/13 Email)(Aukerman, Miriam) (Entered: 10/21/2014)

10/21/2014 161 MOTION for summary judgment by defendants Grand Rapids, City of, David Rahinsky; (Rewa, Kristen) (Entered: 10/21/2014)

10/21/2014

162 MOTION for summary judgment regarding Tyrone Hightower by defendants Anthony Leonard, Gregory Rekucki; (Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)

10/21/2014 163 MOTION for summary judgment regarding Kirk McConer by defendant Thomas

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10/21/2014 10/21/2014
10/21/2014 10/21/2014 10/21/2014 10/21/2014 10/21/2014
10/21/2014

United States District Court for the Western District of Michigan
Niemeyer; (Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
164 MOTION for summary judgment regarding Percy Brown by defendant Anthony Leonard; (Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
165 MOTION for summary judgment regarding Jacob Manyong by defendants Anthony Leonard, Thomas Niemeyer; (Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
166 BRIEF in support of MOTION for summary judgment 161 , MOTION for summary judgment 164 , MOTION for summary judgment 165 , MOTION for summary judgment 163 , MOTION for summary judgment 162 ﬁled by Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Index Existing Exhibits, # 2 Index Exhibits, Brief in Support of Motions for Summary Judgment)(Rewa, Kristen) (Entered: 10/21/2014)
167 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 10)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
168 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
169 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 21, # 2 Exhibit 22, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 25, # 6 Exhibit 26, # 7 Exhibit 27, # 8 Exhibit 28)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
170 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 29)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
171 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
172 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 34, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
173 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 38, # 2 Exhibit 39, # 3 Exhibit 40, # 4 Exhibit 41, # 5 Exhibit 42, # 6 Exhibit 43, # 7 Exhibit 44, # 8 Exhibit 45, # 9 Exhibit 46, # 10 Exhibit 47, # 11 Exhibit 48, # 12 Exhibit 49, # 13 Exhibit 50)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)
174 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 51, # 2 Exhibit 52, # 3 Exhibit 53, # 4 Exhibit 54, # 5 Exhibit 55, # 6 Exhibit 56, # 7 Exhibit 57, # 8 Exhibit 58, # 9 Exhibit 59, # 10 Exhibit 60, # 11 Exhibit 61, # 12 Exhibit 62, # 13 Exhibit 63, # 14 Exhibit 64)(Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). (Entered: 10/21/2014)

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11/18/2014
12/02/2014

United States District Court for the Western District of Michigan
175 EXHIBIT 30 re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Rewa, Kristen) Modiﬁed text on 10/22/2014 (mrs). Modiﬁed text on 10/23/2014 (mrs). (Entered: 10/22/2014)
176 EXHIBIT re 166 by defendants Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Exhibit 28 - DVD)(mrs) (Entered: 10/23/2014)
177 RESPONSE TO MOTION to strike Plaintiffs' Expert 146 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9)(Williamson, Jason) (Entered: 10/30/2014)
178 NOTICE OF MOTION HEARING regarding motions to strike expert 148 and 146 : motion hearing is set for 12/31/2014 at 09:00 AM at 174 Federal Building, Kalamazoo, MI before Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 11/03/2014)
179 RESPONSE in opposition to MOTION to strike Defendants' Expert 148 ﬁled by Grand Rapids, City of, David Rahinsky (Attachments: # 1 Index to Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(Rewa, Kristen) Modiﬁed text on 11/4/2014 (mrs). (Entered: 11/03/2014)
180 STIPULATION and PROPOSED ORDER to Postpone Expert Hearing by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Proposed Order for Postponement of Expert Hearing)(Williamson, Jason) (Entered: 11/12/2014)
181 ORDER approving STIPULATION 180 in part; canceling 12/31/2014 hearing on cross motions to strike expert witnesses; deposition transcripts related to motions may be ﬁled no later than 1/16/2015; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 11/13/2014)
182 RESPONSE in opposition to MOTION for summary judgment 161 , MOTION for summary judgment 164 , MOTION for summary judgment 165 , MOTION for summary judgment 163 , MOTION for summary judgment 162 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Index of Exhibits (Updated), # 2 Exhibit 10: Hightower Deposition Excerpts Updated, # 3 Exhibit 12: McConer Deposition Excerpts Updated, # 4 Exhibit 21: Brown Deposition Excerpts Updated, # 5 Exhibit 31: Leonard Deposition Excerpts Updated, # 6 Exhibit 35: Rekucki Deposition Excerpts Updated, # 7 Exhibit 93: Training Power Point Slide, # 8 Exhibit 94: Cheeros Map Marked by Rekucki, # 9 Exhibit 95:Hightower Jail Intake Form) (Aukerman, Miriam) (Entered: 11/18/2014)
183 RESPONSE in opposition to MOTION for summary judgment 149 ﬁled by Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Attachments: # 1 Appendix Evidentiary Objections, # 2 Index Exhibit, # 3 Exhibit A, MOP, # 4 Exhibit B, Tomich Aff, # 5 Exhibit C, Hightower Dep, # 6 Exhibit D, Lind Dep, # 7 Exhibit E, Leonard Dep, # 8 Exhibit F, VanderKooi Dep, # 9 Exhibit G, Miller v. Village of Pickney, # 10 Exhibit H, Skovgard v Pedro, # 11 Exhibit I, US v Thomas, # 12 Exhibit J, Williams v City of Grand Rapids, # 13 Exhibit K, Wysong v City of Heath) (Rewa, Kristen) (Entered: 11/18/2014)
184 REPLY to response to motion 149 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Index Second Updated Index of Exhibits, # 2 Exhibit 96: Chart of Plaintiffs' Responses to Defendants' Evidentiary Objections, # 3

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United States District Court for the Western District of Michigan
Exhibit 97:Defendants Response to Plaintiffs First Request for Admissions)(Aukerman, Miriam) (Entered: 12/02/2014)
185 REPLY to response to motion 161 , 164 , 165 , 163 , 162 ﬁled by Grand Rapids, City of, Anthony Leonard, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Rewa, Kristen) (Entered: 12/02/2014)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Elliot J. Gruszka on behalf of defendants Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Gruszka, Elliot) (Entered: 12/30/2014)
186 NOTICE rescheduling hearing that was previously set for 4/20/2015; ﬁnal pretrial conference set for 4/23/2015 at 02:30 PM at 174 Federal Building, Kalamazoo, MI before Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 02/04/2015)
187 ORDER ADJOURNING FINAL PRETRIAL CONFERENCE AND JURY TRIAL; 4/23/2015 ﬁnal pretrial conference and 5/12/2015 jury trial adjourned without date at this time; a further scheduling order will issue; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 04/10/2015)
188 PROPOSED STIPULATION and ORDER to Allow Counsel Marc S. Allen to Withdraw by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Aukerman, Miriam) (Entered: 08/03/2015)
189 ORDER approving STIPULATION to allow attorney Marc S. Allen to withdraw 188 ; the appearance of attorney Allen as counsel for plaintiffs is deemed withdrawn; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 08/03/2015)
190 LETTER from attorney Jason Daniel Williamson for plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer regarding DOJ Report on the Baltimore City Police Department (Attachments: # 1 Exhibit 1) (Williamson, Jason) (Entered: 08/15/2016)
191 RESPONSE TO 190 Defendants' Objection fo Plaintiffs' Improper Submission of Supplemental "Authority" ﬁled by defendants Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Gruszka, Elliot) (Entered: 08/19/2016)
192 NOTICE OF MOTION HEARING regarding motion to dismiss 44 , and motions for summary judgment 149 , 161 , 162 , 163 , 164 , and 165 : motion hearing is set for 5/25/2017 at 09:00 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 02/15/2017)
193 NOTICE of Withdrawal of Attorney by defendants Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Bloemers, Margaret) (Entered: 02/16/2017)
194 MINUTES of motion hearing re 161 MOTION for summary judgment ﬁled by David Rahinsky, Grand Rapids, City of, 164 MOTION for summary judgment ﬁled by Anthony Leonard, 165 MOTION for summary judgment ﬁled by Thomas Niemeyer, Anthony Leonard, 44 MOTION to dismiss for lack of jurisdiction ﬁled by Gregory Rekucki, David Rahinsky, Grand Rapids, City of, Thomas Niemeyer, Anthony Leonard, John Guerrero, Thomas McCarthy, 149 MOTION for summary judgment ﬁled by Tyrone Hightower, Percy Brown, Kirk McConer, Jacob Manyong, 163 MOTION for summary judgment ﬁled by Thomas Niemeyer, 162 MOTION for summary judgment ﬁled by Gregory Rekucki, Anthony Leonard; all taken under advisement, opinion and order to issue; held before

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District Judge Paul L. Maloney (Court Reporter: Kathleen Thomas) (Judge Paul L. Maloney, acr) (Entered: 05/25/2017)

06/02/2017

195 MOTION to cite new authority Mich. Ct. App. Decision in People v. Demetrius Terrell Maggit by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber; (Attachments: # 1 Exhibit A, # 2 B) (Williamson, Jason) (Entered: 06/02/2017)

06/02/2017

196 BRIEF in support of MOTION to cite new authority Mich. Ct. App. Decision in People v. Demetrius Terrell Maggit 195 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Williamson, Jason) (Entered: 06/02/2017)

06/15/2017

197 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION to cite new authority Mich. Ct. App. Decision in People v. Demetrius Terrell Maggit 195 ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Williamson, Jason) (Entered: 06/15/2017)

06/15/2017

198 MOTION for leave to ﬁle Response to Plaintiffs' Letter by defendants Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki; (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Gruszka, Elliot) (Entered: 06/15/2017)

06/15/2017

199 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION for leave to ﬁle Response to Plaintiffs' Letter 198 ﬁled by Grand Rapids, City of, John Guerrero, Anthony Leonard, Thomas McCarthy, Thomas Niemeyer, David Rahinsky, Gregory Rekucki (Gruszka, Elliot) (Entered: 06/15/2017)

06/21/2017 200 OPINION AND ORDER granting 44 motion to dismiss; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 06/21/2017)

05/21/2018

201 ORDER REJECTING miscellaneous submitted by Kenyatta Williams; signed by Magistrate Judge Phillip J. Green (Attachments: # 1 Attachment) (Magistrate Judge Phillip J. Green, jkw) (Entered: 05/21/2018)

05/22/2018

Copy of Order Rejecting Pleading 201 and original proposed documents sent via U.S. Mail to Kenyatta Williams (mg) (Entered: 05/22/2018)

07/02/2018

202 ORDER granting 195 motion to cite new authority; granting 198 motion for leave to ﬁle a response; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 07/02/2018)

10/17/2018 203 ORDER granting in part and denying in part 149 , 161 , 162 , 163 , 164 , 165 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 10/17/2018)

10/22/2018 204 NOTICE regarding motions to strike; Defendants may ﬁle a response limited to ﬁve pages by 11/19/2018 (Judge Paul L. Maloney, cmc) (Entered: 10/22/2018)

11/26/2018

205 ORDER dismissing as moot 146 motion to strike experts; and dismissing as moot 148 motion to strike expert; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 11/26/2018)

02/04/2019 206 ATTORNEY SUBSTITUTION adding attorney Elizabeth J Fossel in the place of Patrick J. Lannen (Fossel, Elizabeth) (Entered: 02/04/2019)

02/04/2019

207 ORDER scheduling telephone conference for 2/12/2019 at 10:00 a.m.; counsel for plaintiffs responsible for coordination of call; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 02/04/2019)

02/12/2019 208 MINUTES of telephone conference held before District Judge Paul L. Maloney (Proceedings not recorded) (Judge Paul L. Maloney, acr) (Entered: 02/12/2019)

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02/12/2019

209 ORDER scheduling settlement conference: settlement conference set for 4/11/2019 at 09:00 AM at 601 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw) (Entered: 02/12/2019)

02/21/2019

210 AMENDED CASE MANAGEMENT ORDER: settlement conference set for 4/11/2019 at 09:00 AM at 601 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; ﬁnal pretrial conference set for 7/22/2019 at 09:00 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; jury trial set for 8/13/2019 at 08:45 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 02/21/2019)

03/27/2019

211 NOTICE rescheduling hearing: settlement conference set for 4/11/2019 at 10:00 AM at 601 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, ald) (Entered: 03/27/2019)

04/11/2019

212 MINUTES held before Magistrate Judge Phillip J. Green held of settlement conference; case settled in part; Notice of continued settlementconference to issue (Portions Digitally Recorded) (Magistrate Judge Phillip J. Green, ald) (Entered: 04/12/2019)

04/12/2019 213 ORDER REGARDING PARTIAL SETTLEMENT; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, ald) (Entered: 04/12/2019)

04/16/2019

214 ORDER scheduling settlement conference: continued settlement conference set for 8/20/2019 at 10:00 AM at 601 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw) (Entered: 04/16/2019)

04/17/2019 215 LETTER from Clerk to attorney Anita L. Hitchcock regarding mandatory electronic ﬁling (mg) (Entered: 04/17/2019)

04/17/2019

Copy of Order Scheduling Settlement Conference, 214 , Order 213 , Mandatory E-Filing Letter 215 sent via U.S. Mail to Anita L. Hitchcock (mg) (Entered: 04/17/2019)

08/20/2019

216 MINUTES held before Magistrate Judge Phillip J. Green of continued settlement conference; case did not settle regarding fees; order to issue (Portions Digitally Recorded) (Magistrate Judge Phillip J. Green, ald) (Entered: 08/20/2019)

08/20/2019 217 ORDER RE Fee Petition; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, ald) (Entered: 08/20/2019)

08/21/2019

Copy of Order 217 sent via U.S. Mail to attorney Anita L. Hitchcock (ems) (Entered: 08/21/2019)

08/22/2019

218 ORDER that attorney Anita L. Hitchcock must register as an electronic ﬁler by 9/19/2019; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw) (Entered: 08/22/2019)

08/23/2019

Copy of Order Regarding Mandatory E-Filing and Service 218 sent via U.S. Mail to Anita L. Hitchcock (mg) (Entered: 08/23/2019)

08/28/2019

219 PROPOSED STIPULATION and ORDER to withdraw as co-counsel by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Steinberg, Michael) (Entered: 08/28/2019)

08/29/2019 220 STIPULATED ORDER 219 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 08/29/2019)

08/30/2019

Copy of Order on Stipulation and Proposed Order 220 sent via U.S. Mail to Anita L.

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United States District Court for the Western District of Michigan
Hitchcock (ns) (Entered: 08/30/2019)
221 LETTER from Anita L. Hitchcock regarding Order 218 (ns) (Entered: 08/30/2019)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Daniel S. Korobkin on behalf of plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer, Gilbert Weber (Korobkin, Daniel) (Entered: 09/03/2019)
222 MOTION for attorney fees by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer; (Aukerman, Miriam) (Entered: 09/24/2019)
223 BRIEF in support of MOTION for attorney fees 222 with certiﬁcate of compliance regarding word count ﬁled by Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Summary of Charges, # 3 Exhibit B: ACLU of Michigan Expenses, # 4 Exhibit C: ACLU CLRP Expenses, # 5 Exhibit D: Aukerman Declaration, # 6 Exhibit E: Williamson Declaration, # 7 Exhibit F: Waldman Declaration, # 8 Exhibit G: Kelly Declaration, # 9 Exhibit H: Allen Declaration, # 10 Exhibit I: Lewis Declaration, # 11 Exhibit J: Pinksy Declaration, # 12 Exhibit K: Drew Declaration, # 13 Exhibit L: Hessen Declaration, # 14 Exhibit M: Michigan State Bar Survey, # 15 Exhibit N: Docket) (Aukerman, Miriam) Modiﬁed text on 9/25/2019 (mg). (Entered: 09/24/2019)
224 RESPONSE in opposition to MOTION for attorney fees 222 ﬁled by Grand Rapids, City of (Fossel, Elizabeth) (Entered: 10/29/2019)
225 BRIEF by defendant Grand Rapids, City of re 224 Opposition to Attorney's Fees with certiﬁcate of compliance regarding word count (Fossel, Elizabeth) Modiﬁed text on 10/30/2019 (mg). (Entered: 10/29/2019)
226 EXHIBIT 1 (with attached exhibits 2-6, regarding 225 ) by defendant Grand Rapids, City of (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6) (Fossel, Elizabeth) Modiﬁed text on 10/30/2019 (mg). (Entered: 10/29/2019)
227 EXHIBIT 7 (with attached exhibits 8-12, regarding 225 ) by defendant Grand Rapids, City of (Attachments: # 1 Exhibit 8, # 2 Exhibit 9, # 3 Exhibit 10, # 4 Exhibit 11, # 5 Exhibit 12) (Fossel, Elizabeth) Modiﬁed text on 10/30/2019 (mg). (Entered: 10/30/2019)
228 EXHIBIT 13 (with attached exhibits 14-18, regarding 225 ) by defendant Grand Rapids, City of (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16, # 4 Exhibit 17, # 5 Exhibit 18) (Fossel, Elizabeth) Modiﬁed text on 10/30/2019 (mg). (Entered: 10/30/2019)
229 PROPOSED ORDER regarding Resetting the Time for Plaintiffs to File Reply on Motion for Attorneys' Fees by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Aukerman, Miriam) (Entered: 11/15/2019)
230 STIPULATED ORDER 229 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 11/18/2019)
231 PROPOSED ORDER regarding Resetting the Time for Plaintiffs to File Reply on Motion for Attorneys' Fees by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Aukerman, Miriam) (Entered: 12/02/2019)
232 STIPULATION AND ORDER; deadline for plaintiffs' reply brief extended to 12/17/2019; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 12/03/2019)
233 PROPOSED ORDER regarding Resetting the Time for Plaintiffs to File Reply on Motion for Attorneys' Fees by plaintiffs Percy Brown, Tyrone Hightower, Jacob Manyong, Kirk McConer (Aukerman, Miriam) (Entered: 12/16/2019)

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234 STIPULATION AND ORDER; deadline for plaintiffs' reply brief extended to 12/31/2019; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 12/17/2019)
235 NOTICE OF SETTLEMENT Re Attorneys Fees (Aukerman, Miriam) (Entered: 12/23/2019)
236 ORDER requiring appropriate closing documents to be submitted by 1/27/2020; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 12/30/2019)
237 STIPULATION of dismissal and proposed order by defendant Grand Rapids, City of (Fossel, Elizabeth) (Entered: 01/24/2020)
238 STIPULATION AND ORDER of dismissal; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 01/24/2020)

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Docket Report

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Ruchita Coomar
1:13-cv-00469PLM 2.90

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