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### STATE OF MICHIGAN

COURT OF APPEALS

DENISHIO JOHNSON,

Plaintiff-Appellant, and

THE AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN,

Amicus Curiae, FOR PUBLICATION May 23, 2017 9:00 a.m.

v No. 330536 Kent Circuit Court CURT VANDERKOOI, ELLIOT BARGAS, and CITY OF GRAND RAPIDS, LC No. 14-007226-NO

Defendants-Appellees.

Before: W ILDER , P.J., and B OONSTRA and O’B RIEN , JJ.

B OONSTRA , J.

This case arises out of a police contact between plaintiff and City of Grand Rapids Police Department (GRPD) officers, and th e application of what is desc ribed as GRPD’s “photograph and print” (P&P) policy. The trial court granted summary dispo sition in favor of defendants under MCR 2.116(C)(7) and (10). P laintiff appeals by right. W e conclude that the trial court correctly held that defendants VanderKooi and Bargas were shiel ded by qualified immunity and were therefore entitled to summary disposition under MCR 2.116( C)(7), and that defendant City of Grand Rapids was entitled to summary disposition under MCR 2 .116(C)(10) regarding plaintiff’s claim for munici pal liability under 42 USC § 1983. We therefore affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On August 15, 2011, the GRPD received a telephone complaint th at an individual eventually identified as plaintiff was walking through the Mich igan Athletic Club’s (MAC) parking lot in Grand Rapids and was looking into several vehicl es as if intending to steal something from the vehicles. Officers Greg Edgcombe and Eugene Laudenslager responded and located plaintiff sitting under a shade tree. Plaintiff told E dgcombe that he had merely walked through the parking lot on his way to where he was sitting, to meet a friend who was taking the-2- bus. Plaintiff did not have identification with him. Accordin g to the police report completed by Edgcombe, numerous items had been stolen from vehicles in the M AC parking lot during the preceding months. The police report stated that some of the re ports from the previous incidents contained “descriptions of [a] young black male suspect who lef t the area over the south parking lot grassy knoll which is directly in the path of where plainti ff lives on Burning Tree Drive.” Edgcombe “file checked” his computer system for the name that p laintiff had given him (Denishio Johnson) and did not discover any warrants or previou s arrests. Laudenslager spoke with a witness who identified plaintiff as the person who was l ooking into vehicles but who stated that plaintiff did not t ry to open or enter any of the v ehicles. 1

Sergeant Elliot Bargas of the GRPD arrived on the scene after Laudenslager and Edgcombe had made contact and spoken with plaintiff. According to Bargas, Edgcombe was in the process of trying to identif y who plaintiff was and reporte d that plaintiff had told him that he was 15 years old and lived on Burning Tree Drive just south of the MAC parking lot. Bargas testified that plaintiff admitted to walking through the parkin g lot but denied looking into cars. Bargas further testified that plaintiff looked older than 15 ye ars of age and had tattoos. Sergeant Bargas photographed plaintiff incase there were witnesses from the previous thefts who could identify a suspect. Sergeant Bargas also fingerprinted plainti ff because the GRPD had tried to obtain latent prints in the previous incidents. Bargas explain ed that at the time he performed the P&P on plaintiff, he and Edgcombe still were not sure about pla intiff’s actual identity and were trying to verify it. Bargas testified that he asked plaintiff if there was someone he could call to come to the scene and confirm his identity. Sometime after the P&P, plaintiff’s mother and another family member arrived. B argas explained why plaintiff had been stopped (i.e., that two independent witnesses had described her son as looking into veh icles in the parking lot), and that plaintiff’s mother verified his identity and indicated that she would make sure that plaintiff took a different route to avoid any f uture problems. Plaintiff leftwith his family.

In the meantime, Captain Curtis VanderKooi of the GRPD heard the radio traffic regarding the incident in the MAC parking lot, and went to the scene. VanderKooi testified that he believed he showed up after plaintiff had left and as things were wrapping up at the scene. 2 VanderKooi further testified tha t Bargas and Edgcombe explained what had occurred, that he approved of Bargas’s actions, and that he then drove away. On the following day, VanderKooi requested that plaintiff’s finge rprints be compared with any la tent prints found at the scene of the other larcenies from vehicles inthe area. According to Vander Kooi, either there was no match

1 Edgcombe’s report states: “We discovered that [plaintiff] had looked into cars but unlike the initial information he had not tried to open or enter any of th e vehicles that he looked into.” It is not clear from the record what the phrase “initial information” refers to, as Edgcombe’s description of the telephone compl aint that prompted his respon se to the scene only indicates that the complainant described plaintiff as “looking into several ca rs as he passed by them in the lot as if looking to steal something if it presented it self [sic] to him.”

2 Bargas testified that he thought that VanderKooi arrived while plaintiff was stopped and before plaintiff’s mother arrived.-3- between the prints or the quality of the prints was inadequate to make a comparison. VanderKooi took no further action r elated to thi s incident.

Plaintiff testified that he was handcuffed for the P&P procedu re and was placed in the back of a police car for 5 to 10 minutes while waiting for his mother to arrive. Plaintiff denied looking into cars, but stated at his deposition that he usually looked at his reflection in car windows as he passed them. Plaintiff denied touching any vehic le. After the officers spoke with plaintiff’s mother, they let plaintiff out of the police car an d removed his handcuffs. Plaintiff testified that the police did not ask for his consent for the P &P or any search.

On August 7, 2014, plaintiff filed a complaint against Bargas, VanderKooi, and the City of Grand Rapids (the city), alleging violations of 42 USC 1981, 42 USC 1983, and 42 USC 1988. Plaintiff alleged that, without probable cause or legal authority, Bargas took fingerprints and photographs of pl aintiff, who was African Amer ican. Plaintiff further alleged that the photographs were stored in the GRPD’s files and that V anderKooi directed Bargas to take the fingerprints and photographs and to store them. Plain tiff also alleged that Bargas and VanderKooi took these actions against plaintiff because he was African American. In Count I, the complaint raised a claim against Bargas and VanderKooi unde r 42 USC 1981 and 42 USC 1983, and asserted that they had violated the Equal Prot ection Clause of the Fourteenth Amendment, US Const, Am XIV, 3 plaintiff’s right to be free from unlawful searches and seizures under the Fourth Amendment, US Const, Am IV, his right s under the Fifth Amendment, US Const, Am V, barring the taking of private property without just compensation, and his constitutional right to privacy.

In Count II, plaintiff raised a municipal liability claim agai nst the city under 42 USC 1988. According to the compl aint, an analysis of police reports from March 2008 to March 2013 was conducted. The complaint alleged that, in the r eports that contained VanderKooi’s name and the phrase “P&P” or a similar reference t o photograph and print, there were 11 people, including plaintiff, who were innocent of any w rongdoing but who had still had their photographs and prints take n, and an additional person wh o had only had a photograph taken. The complaint asserted t hat 75% of those individuals we re African American, but the city’s population was only 20% African American. The complaint alleged that plaintiff’s photograph and prints were taken as part of the city’s policy, which was enforced in a discriminatory manner.

On September 3, 2014, defendants filed their answer to the com plaint and affirmative defenses. The following affirmative defenses were raised: (1) plaintiff failed to state a claim upon which relief could be granted ; (2) the initial contact was a consensual police-citizen encounter; (3) reasonable suspicion supported the initial stop and the actions that followed; (4) the initial stop was reasonable; (5) the actions were not discr iminatory or based on race; (6)

3 The Fourteenth Amendment also provides the basis for claims th at a state has denied other federal constitutional rights. See Rendell-Baker v Kohn , 457 US 830, 837-838; 102 S Ct 2764; 73 L Ed 2d 418 (1982).-4- Bargas and VanderKooi were entitled to qualified immunity; (7) plaintiff consented to some or all of defendants’ actions; and (8) any claimed damages were caused, in whole or in part, by plaintiff’s own actions.

On September 11, 2015, the city and the individual defendants filed separate motions for summary disposition. Bargas and VanderKooi argued that they we re entitled to summary disposition under MCR 2.116(C)(7) because they were entitled to qualified immunity given that the law was not clearly establish ed regarding taking fingerprin ts and photographs during investigatory stops. VanderKooi additionally argued that he wa s entitled to summary disposition under MCR 2.116(C)(10) because he did not have an active role i n the stop. Moreover, Bargas and VanderKooi argued that they were entitled to summary dispos ition under MCR 2.116(C)(10) because there was no such thing as a constitutional right to pr ivacy, plaintiff coul d not establish a takings claim, and plaintiff coul d not establish that he was di scriminated against based on race.

The city argued that it was entitled to summary disposition un der MCR 2.116(C)(10) because a city employee did not deny plaintiff a constitutional right, the city’s P&P practice did not violate the Fourth Amendment , plaintiff could not establish that the city acted with deliberate indifference to the federal civ il rights violations, and plaint iff could not establish a pattern, notice, or tacit approval of illegal conduct on the part of the city.

In response, plaintiff stated t hat he was abandoning his equal protection and § 1981 claims but denied that summary disposition was appropriate withrespect to his remaining claims.

Plaintiff planned to have an expert witness, Dr. William Terri ll, testify at trial. Dr. Terrill is a professor of criminal justice at Michigan State University . Dr. Terrill provided an affidavit in which he opined that Bargas’ s actions in performing the P&P procedure in this case were unreasonable. Defendants filed a joint motion to strike Dr. Te rrill’s proposed testimony. Defendants argued that Dr. Terri ll’s proposed testimony could b e broken down into two categories: numerical opinions on racial profiling and opinions on whether Bargas’s actions were reasonable. With respect to the numerical opinions on racial p rofiling, defendants argued that the opinion was inadmissible and unnecessary to the extent that it involved the ordinary use of computations that any layperson could perform. They further ar gued that Dr. Terrill was unqualified to testify about racial profiling. Moreover, defen dants argued that Dr. Terrill’s analysis was unreliable because it used unadjusted census data as a statistical benchmark—an approach rejected by many courts ; that the analysis was unrelia ble because nothing was used as a control; that the analysis was unreliable because his “prelimin ary opinions” regarding this case were not developed using the sa me intellectual rigor as his aca demic work; and that the analysis involved inadmissible hearsay a nd was unnecessary for the jury to interpret the facts. Finally, defendants argued that Dr. Terri ll’s opinion contradicted the a dmissible evidence.

On October 30, 2015, the trial court held a hearing on the mot ions for summary disposition and the motion to strike. Defendants argued that there was no generalized constitutional right to privacy; that a right to privacy must b e tied to a specific amendment; and that, in this case, the applicable amendment is the Fourth Amen dment. Thus, defendants maintained that there could not be a separate claim under a gen eral right to privacy and that the proper analysis is under the Fourth Amendment. Plaintiff did n ot dispute that analysis and agreed that his right to privacy should be evaluated in the con text of the Fourth Amendment.-5- Defendants further argued that people did not have a reasonable expectation of privacy in their fingerprints or in photographs of themselves as they appeared i n public. Plaintiff responded that either a search warrant or probable cause in the field was need ed to gather the evidence and that “none of the bases that the Fourth Amendment requires” were pre sent to allow the gathering of photographs and fingerpri nts in this case.

With respect to the Fifth Amendment, defendants argued that th ere are no property rights implicated in a person’s photograph or fingerprints, that the p hotograph and fingerprints in this case were not published, and that the underlying incident was an application of police powers rather than a taking under the c ity’s eminent domain power. Pl aintiff argued that the incident involved a taking of intangible pr operty without just compensat ion, although he conceded that there were certain instances when police could take someone’s p hotograph and fingerprints as an appropriate exercise of police powers. Plaintiff also conceded that he could not find caselaw indicating that the taking of a fingerprint or photograph by po lice constituted a taking under the Fifth Amendment, but he maintaine d that it was an issue of firs t impression.

Following the hearing, the trial court issued two separate wri tten opinions and orders regarding the motion to strike Dr. Terrill and the motions for summary disposition. With respect to the motion to strike, the trial court acknowledged Dr. Terri ll’s substantial training and education in the general field o f criminal justice but question ed whether he was qualified to give an expert opinion in the instant c ase. The trial court held th at, even assuming that Dr. Terrill was qualified in the area of police conduct similar to the instant case, plaintiff had failed to establish that Dr. Terrill’s opinion would assist the trier of fact or th at his opinions were based on a recognized form of specialized knowledge. The trial court ther efore concluded that plaintiff had failed to satisfy the requirements of MRE 702. In addition, th e trial court held that the testimony sought to be introduced did not pass muster under MRE 403 becau se the information—whether based on Dr. Terrill’s statistic al analysis or on non-statistic al opinion—was unnecessary to assist the jury; plaintiff abandoned the equal protection claims based on race; and the statistical information would only confuse the issues presented to the jury . Accordingly, the trial court granted the motion to strike.

With respect to Bargas and VanderKooi’s motion for summary dis position, the trial court noted that the complaint was limited to the P&P procedure and that plaintiff “did not challenge the propriety of the initial stop, search of his person, or det ention.” The trial court held that plaintiff “was in public and had no reasonable expectation of p rivacy in his various physical features which were readily observable by the public” and that the P&P did not violate the Fourth Amendment. In the altern ative, the trial court noted th at the Fourth Amendment only prohibited unreasonable searches and seizure, and it held that, even assuming that the P&P constituted a search and seizure, Bargas’s actions were reasona ble given the circumstances. Further, the trial court held that plaintiff did not establish that VanderKooi directed Bargas’s actions. The trial court also rejected plaintiff’s argument th at he had a constitutional right to privacy in his fingerprints and facial features. The trial cou rt therefore held that summary disposition was appropriate under MCR 2.116(C)(10) with respect to plaintiff’s Fourth Amendment and constitutiona l right to privacy claim.

Regarding the Fifth Amendment claim, the trial court rejected plaintiff’s argument and held that his facial features and fingerprints were “observable by the general public and not-6- protected under the common law right to privacy.” It therefore held that summary disposition was appropriate under MCR 2.116(C)(10). The trial court also h eld that plaintiff had abandoned his equal protection claim under 42 USC 1981. Consequently, it held that summary disposition was appropriate under MCR 2.116(C)(10).

In addition, the trial court he ld that qualified immunity appl ied to all of plaintiff’s claims against Bargas and VanderKooi. Therefore, the trial court conc luded, “Because Plaintiff failed to establish a genuine issue of material fact regarding his 198 3 claims, and abandoned his 1981 claim, and because Bargas and VanderKooi are otherwise shielded by qualified immunity, summary disposition is appropria te pursuant to MCR 2.116(C)(7) and 2.116(C)(10).”

With respect to the city’s motion for summary disposition, the trial court held that plaintiff had failed to establish a violation of his constituti onal rights and had not established that the policy was unconstitutional on its face or as applied; ther efore, summary disposition was appropriate under MCR 2.116(C)(10).

The trial court accordingly dism issed plaintiff’s claims with prejudice. This appeal followed.

II. INDIVIDUAL DEFENDANTS

Plaintiff argues that the trial court erred by granting summar y disposition in favor of Bargas and VanderKooi on his Fourth and Fifth Amendment claims. Because we find that Bargas and VanderKooi were sh ielded by the doct rine of qualifie d immunity, we disagree.

A. STANDARD OF REVIEW

“A motion for summary disposition under MCR 2.116(C)(7) assert s that a claim is barred by immunity granted by law” and “may be supported or opposed by affidavits, depositions, admissions, or other documentary evidence; the substance or con tent of the supporting proofs must be admissible in evidence.” By Lo Oil Co v Dep’t of Treasury , 267 Mich App 19, 26; 703 NW2d 822 (2005). “A trial court properly grants a motion for s ummary disposition under MCR 2.116(C)(7) when the undispute d facts establish that the mo ving party is entitled to immunity granted by law.” Id . We review de novo a trial court’s grant of summary dispositi on pursuant to MCR 2.116(C)(7). Fisher Sand & Gravel Co v Neal A Sweebe, Inc , 494 Mich 543, 553; 837 NW2d 244 (2013). Further, we review de novo the quest ion of whether a federal constitutional right was clearly established at the time of the alleged violation so as to preclude the protection of qualified immunity. See Elder v Holloway , 510 US 510, 516; 114 S Ct 1019, 1023; 127 L Ed 2d 344 (1994); Morden v Grand Traverse Co , 275 Mich App 325, 340; 738 NW2d 278 (2007).

B. QUALIFIED IMMUNITY GENERALLY

“Qualified immunity is an established federal defense against claims for damages under § 1983 for alleged violations of federal rights.” Id . A person is liable under 42 USC 1983 if he or she, “under color of any statute, ordinance, regulation, cus tom, or usage, of any State . . . subjects, or causes to be subj ected, any citizen of the United States or other person within the-7- jurisdiction thereof to the deprivation of any rights, privileg es, or immunities secured by the Constitution . . . .” 42 USC 1983. “Section 1983 itself is no t the source of substantive rights; it merely provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes.” York , 438 Mich at 757-758. “A cause of action under § 1983 is stat ed where a plaintiff shows (1) that the pla intiff was deprived of a federa l right, and (2) that the defendant deprived the plaintiff of that right while acting under color o f state law.” Davis , 201 Mich App at 576-577. However, “[a] police officer may invoke the defens e of qualified immunity to avoid the burden of standing trial when faced with a claim that the o fficer violated a person’s constitutional rights.” Lavigne v Forshee , 307 Mich App 530, 542; 861 NW2d 635 (2014).

“The doctrine of qualified immunity protects government offici als from liability for civil damages insofar as their conduct does not violate clearly estab lished statutory or constitutional rights of which a reasonabl e person would have known.” Id

. at 542 (quotation marks and citations omitted). Thus, qualif ied immunity does not apply if a right was “clearly established” at the time of the violation, such that it “would be clear to a reasonable officer” that his or her conduct was unlawful. Id . (citations omitted).

Qualified immunity can apply “eve n if there were a genuine iss ue of material fact regarding the underlying [constitutional] claim.” Morden , 275 Mich App at 340, 342. See also Messerschmidt v Millender , 565 US 535, 546; 132 S Ct 1235, 1244; 182 L Ed 2d 47 (2012) (“Qualified immunity gives gove rnment officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompeten t or those who knowingly violate the law.”) (quotation marks and citation omitted). In order fo r a right to be clearly established, there must be “binding precedent . . . that is directly on point.” Morden , 275 Mich App at 340 (quotation marks and citation omitted; alteration in Morden ).

In Saucier v Katz , 533 US 194, 201; 121 S Ct 2151; 150 L Ed 2d 272 (2001), the U nited States Supreme Court articulated the initial inquiry for determ ining whether qualified immunity applies: “Taken in the light most favorable to the party asser ting the injury, do the facts alleged show the officer’s conduct viol ated a constitutional right?” I f there was no violation of a constitutional right, no furthe r inquiry regarding qualified im munity is required. Id . However, “if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly establi shed.” Id . “[T]he right the official is alleged to have violated must have been ‘clearly established ’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that wha t he is doing violates that r ight.’ ” Id . at 202, quoting Anderson v Creighton , 483 US 635, 640; 107 S Ct 3034; 97 L Ed 2d 523 (1987). In ot her words, the “dispositive inquiry in deter mining whether a right is clea rly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id .; see also Anderson , 483 US at 640 (“This is not to say that an official action is protected by qualified immunity unless the very action in question has previ ously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”) (citation omitted).

In Pearson v Callahan , 555 US 223, 231-232; 129 S Ct 808; 172 L Ed 2d 565 (2009), th e Court clarified that courts ma y exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed f irst in light of the circumstances-8- in the particular case at hand.” Id . at 236. See also Jones v Byrnes , 585 F3d 971, 975 (CA 6, 2009) (explaining that “ Pearson left in place [ Saucier’s ] core analysis” and that it “need not decide whether a constitutional violation has occurred if we fi nd that the officer’s actions were nevertheless reasonable”).

In this case, the circumstances lead us to conclude that the s econd prong of the Saucier analysis is dispositive of whether Bargas and VanderKooi are en titled to qualitative immunity. We therefore decline to address whether, taken in the light mos t favorable to plaintiff, the P&P procedure violated plaintiff’s Fourth and Fifth Amendment right s. Rather, for the reasons stated below, we hold that at the time of the alleged violation, the r ight asserted by plaintiff was not clearly established. Saucier , 533 US at 201.

C. FOURTH AMENDMENT RIGHTS

The Fourth Amendment to the United States Constitution protect s against unreasonable searches and seizures. People v Slaughter , 489 Mich 302, 310-311; 803 NW2d 171 (2011). See also Maryland v King , ___ US ___, ___; 133 S Ct 1958, 1968; 186 L Ed 2d 1 (2013), q uoting US Const, Am IV (“The Fourth Amendment, binding on the States by t he Fourteenth Amendment, provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches a nd seizures, shall not be violat ed.’ ”). There is a dual inquiry for determining whether a search or a seizure is unreasonable: “wh ether the officer’s action was justified at its inception, and whether it was reasonably relat ed in scope to the circumstances which justified the interference in the first place.” Terry v Ohio , 392 US 1, 20; 88 S Ct 1868, 1879; 20 L Ed 2d 889 (1968).

A person is liable under 42 USC 1983 if he or she, “under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or c auses to be subjected, any citizen of the United States or other person within the jurisdiction there of to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . .” 42 USC 1983. “Section 1983 itself is not the source of substantive rights; it merely provides a r emedy for the violation of rights guaranteed by the federal constitution or federal statutes.” York v Detroit (After Remand) , 438 Mich 744, 757-758; 475 NW2d 346 (1991). “A cause of action und er § 1983 is stated where a plaintiff shows (1) that the pla intiff was deprived of a federa l right, and (2) that the defendant deprived the plaintiff of that right while acting under color o f state law.” Davis v Wayne Co Sheriff , 201 Mich App 572, 576-577; 507 NW2d 751 (1993). It is undisp uted that the officers were acting under the color of state law when the alleged Fourt h Amendment violation of plaintiff’s rights occurred.

1. NATURE OF PLAINTIFF’S CLAIMS

The factual allegations of plaintiff’s complaint relate solelyto the taking of plaintiff’s photograph and fingerprints. Pla intiff did not challenge his i nitial stop, the length of his detainment, or the fact that he was handcuffed or placed in a p olice car, as being unreasonable and violative of his Fourth Amen dment rights. Rather, he alleg ed only that the P&P procedure was an unlawful search and seiz ure. This Court must limit its review to the alle gations contained in the complaint. See Sutter v Ocwen L Servicing, LLC , 499 Mich 874; 876 NW2d 244 (2016), see also Steed v Covey , 355 Mich 504, 511; 94 NW2d 864 (1959), quoting 41 Am Jur, Ple ading,-9- § 77, pp 343-345 (explaining the general principles that “[e]ve ry material fact essential to the existence of the plaintiff’s cause of action, and which he must prove to sustain his right of recovery, must be averred, in order to let in proof thereof” an d that “[e]very issue must be founded upon some certain point, so that the parties may come p repared with their evidence and not be taken by surprise, and t he jury may not be misled by the introduction of various matters”).

The trial court did not abuse its discretion by limiting plain tiff’s claims to those that plaintiff actually pled. The e ntirety of plaintiff’s Count I ( against Bargas and VanderKooi) reads as follows:

9. On August 25, 2011, Plaintiff Johnson was sitting on the g rass approximately 150 south of Burton Street near the i ntersection of Breton Avenue

_ in the City of Grand Rapids.

10. Plaintiff Johnson is an African-American.

11. Officer Greg Edgcombe contacted Plaintiff Johnson followi ng a call from personnel at the ' Michigan Athletic Club (“MAC”).

12. Despite being told that [plaintiff] had not tried to openor enter any of the vehicles in the MAC parking lot (unlike the initial informa tion), Sgt. Elliott Bargas took a full set of fingerprints and two photos of [plain tiff], without probable cause, a search warrant or other legal authority to do so.
13. Upon information and belief, Defendant VanderKooi directe d Sgt. Bargas to photograph Plaintiff Johnson and have the photograph stored in the files and records of the City of Grand Rapids Police Department, with out probable cause, a search warrant, or legal authority to do so.

14. Upon information and belief, Defendant VanderKooi directe d Sgt. Bargas to take Plaintiff Johnson’ s fingerprints and have the fi ngerprints stored in the files and records of the City of Grand Rapids Police Depart ment, without probable cause, a search warra nt, or legal au thority to do so.

15. Defendants VanderKooi and Bargas took the above actions a gainst Plaintiff Johnson, because he is an African-American.

16. At no time on August 15, 2011, did Plaintiff Johnson comm it any offense in violation of the laws of the City of Grand Rapids, S tate of Michigan, or the United States.

17. There was no legal cause to justify the seizure of Plaint iff Johnson’s photographic image and fingerprints.

18. The actions taken by Defenda nt Bargas and VanderKooi, wer e unreasonable and excessive.-10- 19. Plaintiff Johnson’s constitu tionally protected rights tha t Defendant Bargas and VanderKooi violate d include the following:

a. His right to fair and equal treatment guaranteed and protec ted by the Equal Protection Clause of the F ourteenth Amendment. b. His rights under the Fourth and Fourteenth Amendments to be free from unlawful search and seizure. c. His rights under the Fifth Amendment which bars the taking of private property for public use without just compensation. d. His right to privacy under the U.S. Constitution; e. His rights protecte d by 42 U.S.C. § 1981 and 42 U.S.C. § 19 83. 20. As a direct and proximate re sult of Defendant’s [sic] con duct, Plaintiff Johnson suffered a loss of freedom, emotional injury, including but not limited to fright, shock, embarrassment, and humiliation, and other consti tutionally protected rights described above.

Although plaintiff now seeks to e xpand his claim to encompass a challenge to the length of his detention and his handcuffing, plaintiff’s complaint its elf reflects no such challenge. Moreover, the record reflects that the focal point of this liti gation—from beginning to end—was not the duration of the stop or the handcuffing, but rather the P&P procedure. At the summary disposition hearing, for exa mple, trial counsel argued:

And that’s our point, is you have to be careful when you’re goi ng to take somebody’s pictures or prints. . . .

* * *

So our contention is, no, there’ s no reasonable suspicion. Th ere’s no probable cause to suspect tha t Mr. Johnson ha s done anything, a nd you don’t have the authority under the Fourth Amendment to take his photograph s – plural – and take his full set of fingerprints.

The P&P procedure has continued to be the focal point on appea l. For example, plaintiff
argues:
At the time of the encounter with Johnson, the law was clearly established regarding the fact that fingerprints could not be taken without probable caus e and for that reason summary disposition on Johnson’s Fourth Amendment claim was inappropriate.

* * *

This is a case where a person was subject to detention for the sole purpose of obtaining fingerprints, without probable cau se. Such action violates the Fourth Amendment . . . .-11- * * *

Thus, it should be clear that the compulsory detention of Johns on in this case for the sole purpose of obtaining his finger prints, without probable cause, violated the Fourth Amendment of the Constitution.

* * *

The issue in this case is the appropriateness of the taking of photographs and fingerprints of innocent people. 4

Notwithstanding this focus, pl aintiff cursorily asserts on app eal that the singular reference in paragraph 19(b) of his complaint to “[h]is rights under the Fourth and Fourteenth Amendments to be free from unlawful search and seizure” were ad equate to place defendants on notice that he was challenging not only the P&P procedure, but the length of his detention and the fact that he was handcuffed. 5 We disagree.

While Michigan is a notice pleading state, Johnson v QFD, Inc , 292 Mich App 359, 368; 807 NW2d 719 (2011), a complaint must still provide reasonable notice to opposing parties. Id .; see also Dacon v Transue , 441 Mich 315, 329; 490 NW2d 369 (1992); MCR 2.111(B)(1). A defendant should not be left t o “guess upon what grounds plaint iff believes recovery is justified” after reading the complaint. Dacon , 441 Mich at 329. Therefore, MCR 2.111(B)(1) requires that a theory of liability be supported by “specific allegations rea sonably necessary to inform the adverse party” of the pleader’s claims. Id . In this case, plaintiff pr ovided specific allegations concerning the P&P procedure; however, the complaint is devoid of any allegations (much less specific ones) concerning the use of handcuffs or the length of plaintiff’s detention. In fact, the complaint specifically alleges only that “[t]here was no legal cause to justify the seizure of Plaintiff Johnson’s photographic image and fingerprints” and co ntains absolutely no allegations related to the seizure of plaintiff’s person. The complaint’s general allegation that the “unreasonable and excessive” actions taken by Bargas and Vander Kooi resulted in a violation of his Fourth Amendment rights is t he sort of general allegation t hat “gives no hint of the facts to

4 Amicus Curiae , The American Civil Liberties Union of Michigan, confines its arguments in support of plaintiff t o the P&P procedure.

5 We note that on appeal plaintiff appears to challenge only the fact that his detention continued after officers on the scene spoke with witnesses and plaintiff himsel f. While plaintiff does not specify the precise length of time during which the detention w as allegedly unreasonable, plaintiff testified at his deposition that he was interviewed b y police, his fingerprint and picture were taken, and he was then handcuffed and allowed to call his mother. He further testified that 5 to 10 minutes elapsed from the time that he called his mother and her arrival, and that he was let out of the police car and handcuffs after his mother spoke with police. Bargas testified to a brief interaction with plaintiff’s mother wherein she showed hi m her identification and identified plaintiff as her son.-12- which it refers.” Dacon , 441 Mich at 329. It can therefore only be interpreted as ref erring back to the specific allegations tha t plaintiff did assert relative to the P&P procedure.

The trial court in this case did not abuse its discretion in d eclining to read plaintiff’s general Fourth Amendment allegation as providing sufficient not ice to defendants concerning any and all theories of liability that may have arisen from any portion of plaintiff’s interaction with police—particularly where the complaint was devoid of any specific allegation concerning the unreasonableness of the se izure of defendant’s person. Id

. at 328. And because plaintiff never sought to amend his complaint to allege such a challenge, the trial court was not obliged to offer such an opportunity, and cannot be found to have committe d plain error by failing sua sponte to do so. See Kloain v Schwartz , 272 Mich App 232, 242; 725 NW2d 671 (2006) (holding that the trial court was not required to sua sponte offer the plaintiff leave to amend his complaint absent a request for leave to amend or the defendants ’ written consent to amend).

For all of these reasons, we must confine our analysis of plai ntiff’s Fourth Amendment challenge and the issue of whether—for purposes of a qualified immunity analysis—plaintiff’s alleged constitutional rights were clearly established, to the alleged unlawful search and seizure arising from the officers’ us e of the P&P procedure.

2. APPLICATION

“[A] Fourth Amendment search occurs when the government violat es a subjective expectation of privacy that so ciety recognizes as reasonable.” Kyllo v United States , 533 US 27, 33; 121 S Ct 2038, 2042; 150 L Ed 2d 94 (2001). See also United States v Jacobsen , 466 US 109, 113; 104 S Ct 1652, 1656; 80 L Ed 2d 85 (1984) (“A ‘search ’ occurs when an expectation of privacy that society is prepa red to consider reasonable is i nfringed.”). “What a person knowingly exposes to the public, even in his own home or office , is not a subject of Fourth Amendment protection. But what he seeks to preserve as private , even in an area accessible to the public, may be constitutionally protected.” Katz v United States , 389 US 347, 351; 88 S Ct 507, 511; 19 L Ed 2d 576 (1967) (citations omitted).

When police obtain physical evide nce from an individual, there are two different levels at which there might be a potential Fourth Amendment violation. United States v Dionisio

, 410 US 1, 8; 93 S Ct 764, 769; 35 L Ed 2d 67 (1973). The first level involves the initial “ ‘seizure’ of the ‘person’ nece ssary to bring him into contact with government agents,” and the second level involves “the subse quent search for and seizure of the evidence.” Id

. The United States Supreme Court has stopped short of deciding whether a brief detention of an individual for the purpose of fingerprinting, based on a reasonable suspicion (i.e., a Terry stop, Terry , 392 US at 20), is per se unreasonable. See Davis v Mississippi , 394 US 721, 722; 89 S Ct 1394, 1395; 22 L Ed 2d 676 (1969). In Davis , the Court explicitly stated that it was not deciding whether, during a crim inal investigation, fingerprints could be obtained in the absence of probable cause. See id . at 728. (“We have no occasion in this case, however, to dete rmine whether the requirements of the Fourth Amendment could be met b y narrowly circumscribed procedures for obtaining, during the course of a criminal inves tigation, the fingerprints of individuals for whom there is no probable cause to arrest.”). In fact, the Court stated that “[i]t is arguable, however, that, because of the unique nature of the fi ngerprinting process, such-13- detentions might, under narrowly defined circumstances, be foun d to comply with the Fourth Amendment even though there is no probable cause in the traditi onal sense.” Id

. at 727-728. The Davis Court ultimately decided the issue on the grounds that the peti tioner’s detention at the police headquarters “was not aut horized by a judicial officer,” that the “petitioner was unnecessarily required to undergo two fingerprinting sessions,” and that the “pet itioner was not merely fingerprinted during the [ initial] detention but also su bjected to interrogation.” Id . at 728.

The conduct challenged in Davis thus occurred at the first level of Fourth Amendment analysis (i.e., the i nitial seizure of the petitioner’s person necessary to bring him into contact with government agents), not the taking of the petitioner’s fingerpr ints. See Dionisio , 410 US at 11 (“For in Davis it was the initial seizure—the lawless dragnet detention—that v iolated the Fourth and Fourteenth Amendments, not the taking of the fingerprints.” ). The Dionisio Court further stated that “ Davis is plainly inapposite to a case where the initial restraint do es not itself infringe the Fourth Amendment” Id

. Further, in discussing whether the collection of a voice record ing from a suspect required probabl e cause, the Cour t explained tha t a voice exemplar did not require intrusion into the body like a blood extraction, and it stated, “Rather, this is like the fingerprinting in Davis , where, though the initial dragnet detentions were constitutio nally impermissible, we noted that the fingerprinting itself ‘involve s none of the probing into an individual’s private life and thoughts that marks an interrogat ion or search.’ ” Id . at 14-15, quoting Davis , 394 US at 727. Therefore, “neither the summons to appear bef ore the grand jury nor its directive to make a voice recording infringed upon any interest protected by the Fourth Amendment . . . .” Dionisio , 410 US at 15.

In Hayes v Florida , 470 US 811, 814; 105 S Ct 1643; 84 L Ed 2d 705 (1985), the Co urt concluded that there was no pr obable cause for the plaintiff to have been arrested, no consent, and no judicial authorization fo r detaining the defendant for f ingerprinting purposes. Although the Court ultimately reversed the defendant’s conviction, the r eversal was based on the fact that, as in Davis , the defendant was forcibly removed from his home without prob able cause or a warrant and transported to the police station for the purposes of fingerprinting him. Id

. at 815- 818. Notably, the Court stated, “None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonab le suspicion not amounting to probable cause, is necessarily impermissible under the Fourth A mendment.” Id . at 816. The Court explained as follows:

In addressing the reach of a Terry stop in Adams v. Williams , 407 U. S. 143, 146 (1972), we observed that “[a] br ief stop of a suspicious indivi dual, in order to determine his identity or to maintain the status quo momentaril y while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Also, just this Term, we concluded that if there are articulable facts supporting a r easonable suspicion that a pers on has committed a criminal offense, that person may be stopped in order to identi fy him, to question him briefly, or to detain him briefly while attempting to obtai n additional information. United States v. Hensley

, supra , at 229, 232, 234. Cf. United States v. Place , 462 U. S. 696 (1983); United States v. Martinez-Fuerte , 428 U. S. 543 (1976); United States v. Brignoni-Ponce , 422 U. S. 873 (1975). There is thus support in our cases for the view that the Fourth Amendment wou ld permit seizures for the purpose of fi ngerprinting, if there is reasona ble suspicion that the-14- suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s conn ection with that crime, and if the procedure is carried out with dispatch. Cf. United States v. Place

, supra . Of course, neither reasonable suspicion nor probable cause w ould suffice to permit the officers to make a warrantless entry into a person’s house for the purpose of obtaining fingerprint identification. Payton v. New York , 445 U. S. 573 (1980). [ Hayes , 470 US at 816-817.]

In short, the United States Supr eme Court has not definitively held whether fingerprinting someone constitutes a search under the Fourth Amendment. See Maryland v King , 569 US ___, ___; 133 S Ct 1958, 1987; 186 L Ed 2d 1 (2013) (S CALIA , J., dissenting); see also Kaupp v Texas , 538 US 626, 630 n 2; 123 S Ct 1843, 1846; 155 L Ed 2d 814 (20 03). And the Court has suggested that fingerprints are a physical feature regularly ex posed to the public. See, e.g., Dionisio , 410 US at 14-15. Various federal courts have relied on Dionisio in holding that photographing and fingerprinting does not constitute a search under the Fourth Amendment. See, e.g., United States v Farias-Gonzalez , 556 F3d 1181, 1188 (CA 11, 2009), citing Dionisio
, 410 US 14-15 (“The police can obtain both photographs and finge rprints without conducting a search under the Fourth Amendment.”); Rowe v Burton , 884 F Supp 1372, 1381 (D Alas, 1994), citing Dionisio , 410 US at 5-7 (“Courts have co nsistently refused to accord Fo urth Amendment protection to non-testimonial evi dence such as photographs of a person, his or her handwriting, and fingerprints. Thus, the photographs and fingerprinting, al one, would not likely constitute a search for purposes of the Fourth Amendment.”) (citation omitte d). And the Supreme Court has suggested that a brief seizure, based on reasonable suspicion, that includes the collection of information that is regularly exposed to the public, could be p ermissible. Hayes , 470 US at 816- 817; see also Dionisio , 410 US at 14 (explaining that “ [n]o person can have a reasona ble expectation that others will not know the sound of his voice, a ny more than he can reasonably expect that his face will be a mystery to the world”).

Further, although the case did not involve police contact, thi s Court has also held that “[t]here is no reasonable expectation of privacy in one’s finge rprints.” Nuriel v Young Women’s Christian Ass’n of Metro Detroit , 186 Mich App 141, 146; 463 NW2d 206 (1990); see also People v Hulsey , 176 Mich App 566, 569; 440 NW2d 59 (1989), citing Dionisio , 410 US 14-15. Also, photographing a person as they appear in public does not generally violate any reasonable expectation of privacy. Sponick v Detroit Police Dept , 49 Mich App 162, 198-199; 211 NW2d 674 (1973); Fry v Ionia Sentinel-Standard , 101 Mich App 725, 728-729; 300 NW2d 687 (1980); see also 3 Restatement Torts 2d, § 652d.

It is therefore not clearly est ablished in the law that finger printing and photographing someone during the course of an otherwise valid investigatory s top violates the Fourth Amendment. In fact, prior statements from the United States Su preme Court and this Court suggest that such a procedure would be permissible under the Fo urth Amendment if the initial stop was justified by a reasonabl e suspicion. We therefore con clude that Bargas and VanderKooi were entitled to the protection of qualified immunit y regarding defendant’s Fourth Amendment claims.-15- D. FIFTH AMENDMENT RIGHTS

In relevant part, the Fifth Amendment of the United States Con stitution provides as follows:

No person shall . . . be deprived of life, liberty, or propert y, without due process of law; nor shall privat e property be taken for public use, without just compensation. [US Const, Am V.]

The Fifth Amendment is applicab le “to the states through the Fo urteenth Amendment, US Const, Am XIV.” AFT Mich v Michigan , 497 Mich 197, 217; 866 NW2d 782 (2015). A “ ‘taking’ can encompass governmental interference with rights to both tangibl e and intangible property,” and “[t]he term ‘property’ encompasses everything over which a pers on may have exclusive control or dominion.” Id . at 216, 218 (quotation marks and citation omitted). “In orde r to prevail on a takings claim, a claimant first must demonstrate a cognizable i nterest in the affected private property.” Mich Soft Drink Ass’n v Dep’t of Treasury , 206 Mich App 392, 402; 522 NW2d 643 (1994), lv den 448 Mich 898 (1995). “The Constitution neither creates nor defines the scope of property interests compensable under the Fifth Amendment.” Maritrans Inc v United States , 342 F3d 1344, 1352 (CA Fed, 2003). Rather, “existing rules and und erstandings and background principles derived from an independent source, such as state, f ederal, or common law, define the dimensions of the requisite prope rty rights for purposes of est ablishing a cognizable taking.” Id

. (quotation marks and citation omitted).

Plaintiff argued before the trial court that the P&P procedure constituted an unlawful taking of his “image or likeness” without just compensation. T his Court and the Michigan Supreme Court have recognized a c ommon-law right of privacy tha t protects against various types of invasions of privacy i ncluding the “[a]ppropriation, f or the defendant’s advantage, of the plaintiff’s name or likeness.” Battaglieri v Mackinac Ctr For Pub Policy , 261 Mich App 296, 300; 680 NW2d 915 (2004), quoting Tobin v Mich Civil Serv Comm , 416 Mich 661; 331 NW2d 184 (1982) (quotation marks and emphasis omitted). Yet, “cause s of action for violations of such a right stem from ‘the interest of the individual in the e xclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others.’ ” Id . at 261 Mich App at 300–301, quoting 3 Restatement Torts, 2d, § 652C, comment a. Therefore, a person’s likeness and identity “in so far as the use may be of benefit to him or to others” amount s to “property.” See AFT Mich , 497 Mich at 216. “To generate a compensable taking, the government must assert its authority to seize title or impair the value of property.” Id . at 218.

In this case, plaintiff made no argument that the value of his likeness was impaired or that any defendant seized title to his likeness. Defendants did not interfere with plaintiff’s ability to use his identity or likeness to benefit plaintiff or others and did not prevent plaintiff from carrying out any future endeavor s to benefit from his likeness. In addition, plaintiff’s photographs and fingerprints were obtained under the police pow er rather than power of eminent domain. See Bennis v Michigan , 516 US 442, 452; 116 S Ct 994, 1001; 134 L Ed 2d 68 (1996) (“The government may not be requi red to compensate an owner for property which it has already lawfully acquired under the exer cise of governmental authority other than the power of eminent domain.”). Plaintiff’s counsel admitted to uncovering no casel aw stating that police conduct in-16- photographing and fingerprinting person for investigatory purpo ses constituted a governmental taking. Thus, Bargas and VanderK ooi were entitled to the prote ction of qualified immunity with respect to plaintiff’s Fi fth Amendment claims.

E. CONCLUSION

The alleged constitutional infirmities of the P&P procedure an d the rights asserted by plaintiff were not clearly established in view of the preexisti ng law. See White v Pauly , ___ US ___, ___; 137 S Ct 548, 552; 196 L Ed 2d 463 (2017) (“As this C ourt explained decades ago, the clearly established law must be ‘particularized’ to the facts o f the case. Otherwise, [p]laintiffs would be able to convert the r ule of qualified immunity . . . i nto a rule of virtually unqualified liability simply by alleging viol ation of extremely abstract ri ghts.”) (quotation marks and citation omitted; alterations in White ). Bargas and VanderKooi were th erefore entitled to the protec tion of qualified immunity and to sum mary disposition under MCR 2.11 6(C)(7). 6

III. MUNICIPAL DEFENDANT

Plaintiff also argues that the trial court erred by granting s ummary disposition in favor of the city on plaintiff’s claim fo r municipal liability. We disa gree.

We review de novo a trial court’s grant of summary disposition. See Innovation Ventures v Liquid Mfg , 499 Mich 491, 506; 885 NW2d 861 (2016). The trial court gran ted the city’s motion for summary disposition under MCR 2.116(C)(10); therefor e, the following standards apply:

A motion under MCR 2.116(C)(10) t ests the factual sufficiency o f the complaint. When evaluating a motion for summary disposition under MCR 2.11 6(C)(10), a trial court considers affidavits, pleadings, depositions, admis sions, and other evidence submitted by the parties . . . in the light most favor able to the party opposing the motion. Where the proffered evidence fails to est ablish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [ Id . at 507 (quotation marks and citation omitted; alteration in original).]

“A genuine issue of material fact exists when the record, givin g the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonab le minds might differ.” West v Gen Motors Corp , 469 Mich 177, 183; 665 NW2d 468 (2003). Moreover,

6 We note also that there was no evidence presented to the trial court that VanderKooi participated in the P&P of plaintiff or ordered Bargas to perfo rm the P&P. To the contrary, Bargas testified at his depositi on that it was his decision to perform the P&P. Consequently, even apart from the application of qualified immunity, the evid ence presented to the trial court would not support plaintiff’s clai m against VanderKooi, and Van derKooi would be entitled to summary disposition under MCR 2.116(C)(10).-17- When a motion under subrule (C)(10) is made and supported as pr ovided in this rule, an adverse party may not r est upon the mere allegations o r denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. [MCR 2.116(G)(4).]

Under 42 USC § 1983, a municipality may be held liable for unc onstitutional policies, but § 1983 does not provide for respondeat superior liability. Payton v Detroit , 211 Mich App 375, 398; 536 NW2d 233 (1995). Accord ingly, “[a] municipality cannot be held liable under § 1983 solely because it employs a tortfeasor, and, “in order t o sustain a cause of action against a municipality under § 1983, a plaintiff must show that an action pursuant to official municipal policy of some nature caused a constitutional tort.” Id . (quotation marks and citation omitted). In order for a municipality to be liable, a plaintiff must showthat an official municipal policy or custom caused his injury. Connick v Thompson , 563 US 51, 60–61; 131 S Ct 1350, 1359; 179 L Ed 2d 417 (2011); Los Angeles Co, Cal v Humphries , 562 US 29, 30-31, 36; 131 S Ct 447, 449, 452; 178 L Ed 2d 460 (2010). “Official municipal policy includ es the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practicall y have the force of law.” Connick , 563 at US 61.

In this case, plaintiff argues that the city has a policy of r equiring P&Ps of “innocent pedestrians who do not happen to have ID on them.” In support of this contention, plaintiff alleges that VanderKooi was involved in eleven incidents over f ive years where persons “innocent of any wrongdoing,” incl uding plaintiff, were subject to the P&P procedure, and another incident where a person was only photographed. The fol lowing pieces of documentary evidence submitted to the trial court make reference to this al leged policy or custom:

1. The city’s answer to a reque st for admission, in which the city stated in relevant part:

[O]fficers taking photos and thum bprints of individuals is a cu stom or practice of the City of Grand Rapids and has been for decades. The custom or practice has changed over those years with the evolution of technology. . . . [A]lthough it is primarily a thumbprint, another finger or fingers might be prin ted instead of or in addition to a thumb. . . . A photograph and print might be tak en of an individual when the individual does not have identification on them and th e officer is in the course of writing a civil infr action or appearance ticket. A p hotograph and print might be taken in the course of a field interrogation or a stop if appropriate based on the facts and circumstance of that incident.

2. Bargas’s deposition testimony, in which he agreed that he p erformed the P&P procedure in accordance with departmental policy.

3. VanderKooi’s deposition testimony, in which the following c olloquy occurred between VanderKooi and plaintiff’s counsel:

Q . Okay. So, you would agree with the statement that police of ficers taking photographs and thumbprints known as P and P of individu als with whom-18- they made contact is a commonly known longstanding custom and p ractice of the Grand Rapids Police Department?

A . When I started in 1980 the y were doing P and P’s yes.

4. An excerpt from the Grand Rapids Police Manual of Procedure s (dated 2004) that contain the following statements relevant to the P&P procedure:

3. Officers issuing appearance tickets shall:

* * *

b. Picture and print all subj ects without good ide ntification

. 5. An excerpt from the Grand Rapids Police Department Field Tr aining Manual (dated 2009) that contains the following s tatements relevant to the P& P procedure:

Under the heading FIELD INTERROGATIONS :
5. Field Interrogation reports

* * *

d. Disposition of suspect (arre st, picture and print, released , etc).

B. TRAINING CONSIDERATIONS

* * *

9. Picture and print procedures.

6. An excerpt from the same Field Training manual related to t raffic violations that lists the actions an officer may take when a motorist is driving withtheir driver’s license suspended, revoked, or denied and states in relevant part:

(3) Issue citation and obtain a p icture and print or arrest.

7. An excerpt from the Grand Rapids Police Department Patrol S ergeant Field Training Tasks Manual (which we note indi cates that it was revised in 20 13, after the incide nt in question) that provides in relevant part:

TRAFFIC/ACCIDENT PROCEDURES

* * *

3) Picture and Prints.

a) Carry a Digital Camera and related supplies.-19- b) Photograph subject clearly and take a readable thumbprint.

(1) Record on P&P card, Subject Identifier (name, race, sex, etc). Include License Plate in picture if driver or occupant of vehicle.

We conclude that this evidenc e does not suffice to show that a ny alleged violation of plaintiff’s constitutional rights was the result of an official municipal policy or custom. Plaintiff argues in his brief on appeal tha t the trial court erred when i t failed “to recognize that the custom and practice that [plaintiff] challenges is not the taking of p rints and pictures, generally, but the custom and practice of taking prints and pictures of innocent c itizens,” specifically the P&P of persons taken in the course of a field interrogation or stop. However, the documentation relied upon by plaintiff does not indicate that the city has a policy of requiring P&Ps during field interrogations and stops. The onl y references to P&P with resp ect to field interrogations and stops, as opposed to the writing of “appearance tickets” or cit ations for driving with a suspended, revoked, or denied driver’s licen se, are found in the guideline s for describing the disposition of the subject in the field interrogation report and the reference to “training considerations” in the Field Training Manual. Nothing about these references instruct GRPD officers to take P&Ps during every field interrogation or stop or every such encounte r where the subject lacks official identification or to P&P “innocent citizens.” In fact, the maj ority of the references to the use of the P&P procedures involve its us e during the issuance of citat ions that do not result in arrest; the issuance of these citations would involve, absent bad faith on the part of the issuing officer, at least a good-faith belief that probable cause existed to suspec t that an ordinance or statute was violated. See MCL 257.727c; MCL 764.1d; MCL 764.9f; Detroit v Recorder’s Court Judge, Traffic and Ordinance Div , 85 Mich App 284, 292; 271 NW2d 202 (1978). Further, the Patr ol Sergeant Field Training Tasks Manual, to the extent it is even relevant to events that occurred before its revision date, discusses P&Ps not in the context of field interrogations or stops, but rather in the section labelled “ TRAFFIC/ACCIDENT PROCEDURES”.

We conclude that the action that plaintiff alleges to have cau sed the deprivation of his rights, i.e., a P&P during a fiel d interrogation or stop, did n ot “implement[] or execute[] a policy statement, ordinance, regulati on, or decision officially adopte d and promulgated” by the city, whether through GRPD or otherwise. Monell , 436 US at 690. We also conclude that, even viewing the evidence in the light most favorable to plaintiff, see Innovation Ventures , 499 Mich at 507, plaintiff did not establi sh a genuine issue of material fact that his alleged deprivation was caused by an unwritten custom or policy “so persistent and wide spread as to practically have the force of law.” Connick , 563 at US 61.

Contrary to plaintiff’s contention, the city has not admitted that plaintiff was subjected to a P&P as a result of a custom or policy. The city did admit th at the P&P procedure in general exists and did use the words “custom or practice.” However, th e city also stated that a P&P was discretionary and dependent on the particular facts of the inci dent in question: “A photograph and print might be taken in the course of a field interrogation or a stop if appropriate based on the facts and circumstance of that incident.” Further, Bargas’ s deposition testimony, read in context, indicates tha t he agreed that his taking of plaintiff’ s photograph and fingerprints was “in keeping” with departmental polic y; Bargas also testified that h e made the decision to P&P plaintiff based on the particular circumstances of the case, sp ecifically that he did not believe-20- plaintiff’s claim of identity (apparently based at least in par t on Bargas’s belief that plaintiff could not have received a tattoo in Grand Rapids if he was unde r 18), the fact that previous burglaries from cars had been reported in that parking lot, andhis belief that latent prints had been taken from the previous bur glaries that could either suppo rt the conclusion that plaintiff was a suspect in the burglaries or eliminate him as a suspect. Not hing in Bargas’s testimony indicates that he was following a custom or policy that had the force of law when he performed a P&P on plaintiff. And VanderKooi’s testimony similarly reveals his individualized choices to perform P&Ps or to order them perf ormed in the cases identified by plaintiff. 7

“Where a plaintiff claims that the municipality has not direct ly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held lia ble solely for the actions of its employee.” Bd of Co Comm’rs of Bryan Co, Oklahoma , 520 US 397, 405; 117 S Ct 1382; 137 L Ed 2d 626 (1997). In this case, even assuming that plaintiff c ould demonstrate a violation of his rights, plaintiff cannot show that the city “specifically direc ted” Bargas to violate plaintiff’s rights. Id

. at 406. Not every constitutional violation by an officer in th e field supports a finding of municipal liability for his employer; “a local government ma y not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell , 436 US at 693. We therefore conclude that plaintiff failed to raise a genuine issue of mate rial fact concerning whether Bargas’s action was taken “under color of some official policy” whether written or unwritten, when the most that can be gleaned from the evidence presented t o the trial court was that the P&P procedure was available for use by GRPD officers and could, depending on particularized circumstances, be used during the field interrogation of a pers on who was never arrested or charged with a crime. The trial court properly granted summary disposition in favor of the city under MCR 2.116(C)(10).

IV. PLAINTIFF’S EXPERT WITNESS

Finally, plaintiff argues that the trial court erred by granti ng defendants’ motion to strike Dr. Terrill’s testimony. We disagree. We review for an abuse of discretion a trial court’s determinations regarding “[w]hether a witness is qualified to r ender an expert opinion and the actual admissibility of the expert’s testimony.” Tate ex rel Estate of Hall v Detroit Receiving Hosp , 249 Mich App 212, 215; 642 NW2d 346 (2002). “A trial court d oes not abuse its discretion when its decision falls within the range of principl ed outcomes.” Rock v Crocker , 499 Mich 247, 260; 884 NW2d 227 (2016).

7 As stated above, VanderKooi did not order Bargas to perform th e P&P. Nor did VanderKooi’s testimony support the inference that Bargas was acting accordin g to the policy alleged by plaintiff, as VanderKooi testified to his belief that Bargas ha d “consensually obt ained” plaintiff’s fingerprints.-21- MRE 702 governs expert testimony and provides as follows:

If the court determines that scie ntific, technical, or other sp ecialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, ex perience, training, or education may testify thereto inthe form of an opinion or othe rwise if (1) the testimony is based on sufficient facts or data, (2) the testimo ny is the product of reliable principles and methods, and (3) the witness has applie d the principles and methods reliably to the facts of the case.

MRE 702 “requires the circuit c ourt to ensure that each aspect of an expert witness’s testimony, including the underlying data and methodology, is re liable,” and it “incorporates the standards of reliability that the United States Supreme Court a rticulated in Daubert v Merrell Dow Pharm, Inc ,” 509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 (1993). Elher v Misra , 499 Mich 11, 22; 878 NW2d 790 (2016). Daubert requires that the trial court ensure all scientific testimony is relevant and reliable. Id . at 22-23. Although not dispositive, absence of supporting literature “is an important factor in determining the admissibi lity of expert witness testimony.” Id . at 23. Notably, “it is generally not sufficient to simply po int to an expert’s experience and background to argue that the exp ert’s opinion is reliable and, therefore, admissible.” Id

. (quotation marks and citation omitted).

In Kumho Tire Co, Ltd v Carmichael , 526 US 137, 152; 119 S Ct 1167, 1176; 143 L Ed 2d 238 (1999), the United States Supreme Court held that “an expert, whether basing testimony upon professional studies or personal experience, employs in th e courtroom the same level of intellectual rigor that characte rizes the practice of an expert in the relevant field.” In other words, Daubert ’s general gatekeeping function applies to all expert testimony —whether the expert relies on scientific principles or “skill- or experience -based observation.” Id . at 151-152. However, “[t]he trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special bri efing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.” Id . at 152. “[W]hether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a ma tter that the law grants the trial judge broad latitude to determine.” Id . at 153.

The trial court did not abuse its discretion in striking Dr. T errill’s proposed expert testimony concerning the reasonab leness of Bargas’s actions in the instant case. Plaintiff cites to numerous cases in support of hi s argument that expert testimony can be used to “educate the trier of fact on police methods and procedures, patterns of expected police response to given situations, and whether those are legal or illegal.” However, none of these cases stand for the proposition that expert testimony that invades the province of the jury by making a legal conclusion is permissible. “The opinion of an expert may not e xtend to the creation of new legal definitions and standards and to legal conclusions.” Lenawee Co v Wagley , 301 Mich App 134, 160-161; 836 NW2d 193 (2013). Expert witnesses may not invade the province of the jury and are “not permitted to tell the jury how to decide the case.” Carson Fischer Potts & Hyman v Hyman , 220 Mich App 116, 122-123; 559 NW2d 54 (1996).-22- In this case, Dr. Terrill’s opinion that Bargas’s conduct was unreasonable was a legal conclusion based on Terrill’s own interpretation of the same fa cts that a jury would be tasked with interpreting. See DeMerrell v Cheboygan , 206 Fed Appx 418, 426-427 (CA 6, 2006) (holding that “Plaintiff–Appella nt’s expert testified as to a l egal conclusion because he stated that “it was objectively unreasonable for Officer White to shoo t Mr. DeMerrell” and that the expert made the following other improper legal conclusions: (1 ) “a reasonable officer on the scene would not have concluded at the time that there existed p robable cause that Mr. DeMerrell posed a significant threat of death or serious physical injury to the officer or others” and (2) “use of deadly force by [Officer White] was improper and unnecessary ”); Hygh v Jacobs , 961 F2d 359, 364 (CA 2, 1992) (comparing expert testimony that a police officer’s “conduct was not ‘justified under the circumstances,’ not ‘warranted under the c ircumstances,’ and ‘totally improper’ ” to improper expert testimony that a person was negl igent and holding that the expert “testimony regarding the ultimate legal conclusion entrusted to the jury crossed the line and should have been excluded”). 8

Further, although plaintiff does not present argument on this issue, much of Dr. Terrill’s testimony related to plaintiff’s abandoned equal protection cla im and was therefore not relevant to the issues at hand. MRE 401. The trial court did not abuse its discretion in striking Dr. Terrill’s testimony. Further, ev en if Dr. Terrill’s testimony was stricken in error, nothing in his testimony would alter our conclusions in Parts II and III, abov e. Any error in the trial court’s granting of defendants’ motion to strike was therefore harmless . See Lewis v LeGrow , 258 Mich App 175, 200; 670 NW2d 675 (2003); MCR 2.613(A).

Affirmed.

/s/ Mark T. Boonstra /s/ Colleen A. O’Brien

Wilder, P.J., did not participate.

8 Lower federal court decisions “are not binding on state courts” but may be persuasive. Bienenstock & Assoc, Inc v Lowry , 314 Mich App 508, 515; 887 NW2d 237 (2016) (quotation marks and citation omitted).