1

 Fed. R. Civ. P. 56(c) states, “The judgment sought should be rendered if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

1

 UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAMONT RUTH,

Plaintiff,

v.

BRYAN FORD,

Defendant.

Case No. 09-11278

Honorable Julian Abele Cook, Jr.

ORDER

This case involves several claims by the Plaintiff, Lamont Ruth, who contends that his

fundamental rights under the United States Constitution and 42 U.S.C. § 1983 were violated by the

Defendant, Bryan Ford, while acting as a law enforcement officer for the Grosse Pointe Farms,

Michigan community when he stopped and conducted a warrantless search without reasonable

suspicion, probable cause, or any other legal premise. 

On January 27, 2010, Ford filed a motion for summary judgment pursuant to Fed. R. Civ.

P. 56(c).1

 Ruth, in opposing this motion, has created an issue that is now ripe for a review by this

Court. 

I.

On March 14, 2007, at approximately 12:30 in the afternoon, the Grosse Pointe Farms
2

Department of Public Safety Dispatch received a telephone call from a woman who claimed to be

near the intersection of McMillan and Chalfonte in Grosse Pointe Farms. The caller stated that she

saw a “suspicious gentleman” riding a bicycle near the intersection of McMillan and Chalfonte

Streets, heading toward Mack Avenue. This message was thereafter relayed by the dispatcher to all

of the patrol units. In her message, the dispatcher told the patrol units that the caller had “requested

the patrol officers to check for a suspicious subject in the area of McMillan and Chalfonte heading

towards Mack, and described the subject as a black male on a bike wearing a dew-rag and yellow

shirt, carrying a woman’s black purse, and pedaling very fast as though he was trying to get away

from someone.” (Dispatcher Aff., Def.’s Ex. 1 ¶ 10.) Both the dispatcher and Ford acknowledge

that the caller had neither identified nor reported any criminal activity. 

Ford, acting upon his experience as a police officer in Grosse Pointe Farms, suspected a

possible property theft because “it is unusual for a male, carrying a purse, to be riding a bike at high

speed in this general area of [Grosse Pointe Farms]; and property thefts are common in this general

area of [Grosse Pointe Farms].” (Def.’s brief, p. 1.) However, when Ford’s initial search of the area

for the “suspicious subject” proved to be unsuccessful, he abandoned the search and devoted the

balance of his immediate energy to assisting a fellow officer at the nearby intersection of Mack

Avenue and Manor Street. Soon thereafter, Ford observed an individual whom he believed matched

the description of the alleged “suspicious subject.” This person, who turned out to be Ruth, was

riding a bike on Manor Street, crossed Mack Avenue and rode into a drug store (i.e., CVS) parking

lot. Ford followed Ruth into the CVS parking lot and exited his police vehicle after directing Ruth

to come to him. Upon receiving this directive, Ruth got off of his bike, and approached Ford. When

asked for his identification, Ruth removed the bag (a cooler bag) from his shoulder and placed it on
2

According to Ruth, the water bottle was, or should have been, plainly visible to Ford

during this encounter because the top of the cooler bag was open.

3

the ground in order to retrieve an identification from the wallet in his right pants pocket.2

 After Ruth

tendered his driver’s license to Ford which was returned shortly thereafter, he was asked, “where

are you going?” In response, Ruth advised Ford that he had traveled to the drug store to pick up his

script, and “if he didn’t believe me, he could go and get it himself.” (Ruth Dep., Plf.’s Ex. A, p. 92.)

Ford’s recollection of the event varies from Ruth’s version. According to Ford, he asked the bicyclist

where he had come from and, thereafter, unilaterally determined that the route that had been taken

by Ruth to reach the drug store was not the most direct route. He also maintains that Ruth appeared

to be extremely nervous and showed, in his opinion, a desire to distance himself and his bag from

close scrutiny. These contentions and conclusions were denied by Ruth who sharply disputed Ford’s

characterization of his conduct.

At the conclusion of this verbal exchange between these two parties, Ford conducted a patdown search of Ruth. Although Ford alleges that he had asked Ruth if he was carrying any weapons,

Ruth denies this allegation. According to Ruth, his cooler bag was picked up from the ground by

Ford who proceeded to examine its contents without his consent, which included the unzipping of

a pocket of the bag, where he found a .32 caliber handgun. Ford maintains that, prior to finding the

weapon, he felt the outside of the bag and detected the outline of a handgun. In his opinion, this

finding prompted him to search an outside compartment of the cooler bag, where he uncovered the

weapon which formed the basis for arresting Ruth and placing him in handcuffs. Ford also avers that

“Ruth admitted that he used the handgun for personal protection and admitted that he did not have
3

Ruth testified at his deposition that he was unaware that the gun – which belonged to his

cousin – was in the cooler bag.

4

Ruth acknowledges that, although the bullets had been in his pocket for a couple of days,

he had forgotten to remove them.

5

At his deposition, Ruth asserted that the statement was inaccurate, in that he possessed 

the gun in order to protect his home. 

6

Ruth was represented by counsel during all of the proceedings up to and including his

appeal.

4

a permit to carry a concealed weapon.” (Def.’s brief, p. 3.)3

Following his arrest, Ruth was taken to a Grosse Pointe Farms lock-up facility where he was

searched again by officers who found .32 caliber bullets in his pocket.4

 Thereafter, Ruth (1) signed

a document in which he acknowledged having been informed of his fundamental rights as an

accused under the United States Constitution, and (2) executed a written statement wherein he

maintained his use of the gun was only for his personal protection.5

After concluding that the preliminary investigative work had been completed, Detective

Ricky Good forwarded (1) an investigator’s report, (2) Ford’s arrest report, and (3) a request for a

warrant recommendation to the Wayne County Prosecutor’s Office. On March 15, 2007, the Wayne

County Prosecutor filed a felony complaint against Ruth for carrying a concealed and dangerous

handgun, in violation of Mich. Comp. Laws § 750.227. Ruth was detained in the Wayne County

jail for a three day period thereafter until he posted a $500 bond. 

In June 2007, an evidentiary hearing was conducted in the Wayne County Circuit Court of

Michigan in which Ford was the only witness who had been called upon to testify.6

 In his testimony,

Ford testified that he had stopped Ruth who, in his opinion, matched the description of the

“suspicious subject” of the dispatch call. The balance of Ford’s testimony tended to support the
5

bases for the events which resulted in Ford’s ultimate arrest. Ruth’s subsequent effort to suppress

the handgun evidence was rejected. Ruth’s conviction of the felony was followed by a sentence of

probation for a period of eighteen months. 

Ruth’s appeal from the conviction to the Michigan Court of Appeals yielded a response from

the Wayne County Prosecutor’s Office, which filed a “Confession of Error.” In its “Confession of

Error” document, the Wayne County Prosecutor’s Office acknowledged that Ford did not have a

reasonable suspicion of criminal activity to stop and frisk Ruth. The “Confession of Error” also

noted that Ford’s (1) search of the bag was not supported by any reasonable suspicion based on

articulable facts, and (2) discovery of the gun was therefore not proper. Acting upon the accuracy

of this document, the Court of Appeals then vacated Ruth’s conviction and sentence. 

In March 2009, Ruth initiated this lawsuit, contending that Ford had (1) violated the law

pursuant to 42 U.S.C. § 1983, which caused him to be (2) falsely arrested, wrongly imprisoned and

subjected to malicious prosecution. Ruth seeks damages because, in his opinion, that he “was

incarcerated, lost job opportunities, incurred significant legal expense, court costs and humiliation.”

(Plf.’s brief, p. 5.) In referring to his encounter with Ford, Ruth submits that he has been under

“significant stress” because of this incident which, in turn, has caused him to seek and obtain

emergency room treatment for his emotional ills. 

II.

Summary judgment is appropriate in cases in which “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When

reviewing a motion for summary judgment, district courts must construe all reasonable inferences
6

in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). If the evidence demonstrates that there is “sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

In those situations in which the moving party has met its burden of showing that there is no

genuine issue as to a material fact, the non-moving party cannot merely rest upon the allegations

within the pleadings. See Fed. R. Civ. P. 56(e). Thus, the non-moving party must “go beyond the

pleadings and by . . . affidavits, or by the ‘depositions, answers to interrogatories, and admissions

on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986) (citing Fed. R. Civ. P. 56(e)). “The mere existence of a scintilla

of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on

which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. 

III.

Ford argues that he is entitled to qualified immunity with regard to Ruth’s claims under 42

U.S.C. § 1983 because he did not violate Ruth’s rights under the Fourth Amendment to the United

States Constitution, which provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

Ruth opposes this pending motion, arguing that Ford did not have a reasonable suspicion of any 
7

According to 42 U.S.C. § 1983, 

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

7

criminal activity when he was stopped and searched, in violation of clearly established law.7

 

 The Fourth Amendment protection against unreasonable searches and seizures generally

requires the existence of a probable cause. Safford United School Dist. #1 v. Redding, 129 S. Ct.

2633, 2639 (2009). Probable cause is present when “the facts and circumstances within [an officer's]

knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves

to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”

Id.

The protections of the Fourth Amendment also apply to those seizures which result from

brief detentions. Terry v. Ohio, 392 U.S. 1, 16 (1968). Indeed, “whenever a police officer accosts

an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. Thus, a

police officer is authorized to stop and briefly detain a person, for investigative purposes, if he has

a reasonable suspicion, based on articulable facts, that criminal activity may be afoot. United States

v. Perez, 440 F.3d 363, 370 (6th Cir. 2006) (quoting Terry, 392 U.S. at 20). Moreover, in order to

conduct a search of the detained individual’s person, the officer must have a reasonable belief that

he is dealing with an armed and dangerous individual. Terry, 392 U.S. at 27. “[T]he issue is

whether a reasonably prudent man in the circumstances would be warranted in the belief that his

safety or that of others was in danger.” Id. However, when officers “go beyond checking out the
8

suspicious circumstances that led to the original [Terry] stop, the detention becomes an arrest that

must be supported by probable cause.” Walters v. Stafford, 317 Fed. Appx. 479, 485 n.6 (6th Cir.

2009) (citing Smoak v. Hall, 460 F.3d 768, 780-81 (6th Cir. 2006)). 

“Generally, questions about whether the police had a reasonable suspicion or probable cause

are presented to a jury in a § 1983 case, but they may be determined by the court if there is only one

reasonable determination possible.” Manley v. Paramount’s Kings Island, 299 Fed. Appx. 524, 526

(6th Cir. 2008). 

A.

The Court first turns to Ford’s assertion that he is entitled to qualified immunity. In 1982,

the Supreme Court held that “‘government officials performing discretionary functions generally

are 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.’” Id.

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is a question to be

resolved by the district court and in which the plaintiff bears the burden of showing that the

defendant is not entitled to the immunity. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). To

determine if the governmental official is entitled to qualified immunity, courts must ask (1) whether

the facts - taken as alleged by the plaintiff and viewed in a light most favorable to him - show that

the officer violated a constitutional right and (2) whether this right was clearly established so that

a reasonable officer would have known that the conduct was unlawful. Id. at 201. The Supreme

Court has recently held that these inquiries need not be addressed in that order, although this

sequence is “often appropriate.” Pearson v. Callahan, 555 U.S. ____ (2009). 

In the case that is now pending before the Court, Ford proclaims that he had a reasonable
9

suspicion to stop Ruth, whose description matched the “suspicious subject” who had been described

in the dispatch call. However, when an accused law enforcement officer relies upon evidence that

was presumptively enhanced by a search which, in turn, was prompted by a radio message, flyer,

or bulletin, the admissibility of this evidence turns on whether the entity or person who issued the

initial “message of distress” had a reasonable basis upon which to believe that the accused had

committed a criminal offense. United States v. Henley, 479 U.S. 221, 231-32 (1985). Here, the

dispatcher acknowledged in her message that the caller had not seen any “activity or incident.”

Thus, the dispatch message was not based upon any reasonable suspicion of a criminal activity that

was founded on articulable facts - only a hunch that Ruth had committed property theft, which is

insufficient basis upon which to justify an investigatory stop. Moreover, after viewing the facts in

the light most favorable to Ruth, it was evident that the “purse” which was thought by the caller to

be the subject of a theft was, in actuality, a cooler with a water bottle visibly inside. Thus, Ford’s

investigatory stop of Ruth was contrary to the Fourth Amendment. 

 Furthermore, Ford cannot avail himself of a good faith reliance on the dispatch call. In

Hensley, the Court held that an officer who made a stop on the basis of a radio message may be

entitled to a good-faith defense to any civil suit. 469 U.S. at 232. “It is the objective reading of the

[radio message] that determines whether other police officers can defensibly act in reliance on it.”

Id. (citing Terry, 392 U.S. at 21-22). Contrary to the arguments by Ford, this case does not present

a circumstance in which a reasonable police officer could defensibly rely upon the dispatch call to

conduct an investigatory stop. 

As discussed above, it was abundantly clear from the message itself that the anonymous

caller had not seen any incident or activity, but relied upon a hunch that Ruth had engaged in some
10

form of illegal activity - precisely that which Terry is meant to prevent. See Terry, 392 U.S. at 22

(“Anything less [than an objective standard of reasonableness] would invite intrusions upon

constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a

result [the Supreme Court] has consistently refused to sanction.” ) When Ford initially encountered

Ruth, he was able to see or should have been able to see that the bag was not a woman’s purse which

further confirmed that the anonymous caller’s suspicion was nothing more than a hunch. Thus, there

is no factual basis for Ford to conclude that he was acting in accordance with Terry. The Court

therefore concludes that Ruth has shown that Ford committed a constitutional violation in

conducting the investigatory stop. Moreover, Ruth’s constitutional right to be free from

unreasonable seizures was clearly established at the time Ford detained Ruth. Terry stands for the

proposition that even investigatory stops must be prompted by a reasonable suspicion of criminal

activity. Terry, 392 U.S. at 27. 

Ford’s subsequent pat-down of Ruth is also violative of the Fourth Amendment. Ford

submits that Ruth appeared to be nervous and was attempting to distance himself and his bag from

any investigatory examination. Although the Supreme Court has held that a person’s outward

ostensibly evasive behavior may be relevant to a reasonable suspicion inquiry, it is only one factor

to be considered by the court. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). In order to

conduct a constitutionally sound pat-down search of a person, the examining officer must have

reasonable suspicion that the person is armed and dangerous. Terry, 392 U.S. at 27. Even assuming

that Ruth was nervous, this factor standing alone would not lead a reasonable officer in Ford’s

situation to conclude that Ruth had a weapon. Ruth’s right not be patted down absent reasonable

suspicion that he was armed and dangerous was also clearly established at the time of the incident
8

 Ruth has not asserted that Ford violated his rights under the Fourth Amendment by

arresting him and placing him in jail for three days.

11

in question. See id.

Even though Ford’s pat down of Ruth’s person did not result in uncovering any weapons,

he continued his search by examining the content of Ruth’s cooler bag. Generally, seizures of

property require probable cause. Bennett v. City of Eastpointe, 410 F.3d 810, 825 (6th Cir. 2005).

However, a brief detention of personal property may be allowed if it is based on a reasonable

suspicion of criminal activity. Id. Ford acknowledges that he did not receive Ruth’s consent to

search his bag. Notwithstanding, he maintains that his search was “directly connected to suspected

evidence of theft of personal property.” (Def.’s brief, p. 15.) However, the “suspected theft,” about

which Ford speaks, was based upon the anonymous caller’s belief that Ruth had stolen a woman’s

purse. As explained above, and based on the facts viewed in a light most favorable to Ruth, Ford’s

belief in a suspected theft does not constitute reasonable suspicion of criminal activity where the bag

was actually a cooler and not a woman’s purse, as the dispatcher had mentioned. As such, viewing

the facts in Ruth’s favor, he has shown that Ford’s conduct was unconstitutional. Moreover, Ruth’s

right to be free from unreasonable searches and seizures of his property was clearly established in

Bennett and other Supreme Court and Sixth Circuit precedent. See, e.g., United States v. Place, 462

U.S. 696, 701 (1983); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 543-44

(6th Cir. 2002).

Therefore, the Court determines that Ford is not entitled to qualified immunity with respect

to Ruth’s § 1983 claims.8
12

B.

Alternatively, Ford contends that Ruth has failed to perfect a Section 1983 claim because he

cannot show that his claimed damages (e.g., lost wages, legal expenses) were proximately caused

by the alleged constitutional violation. Ford also alleges that even if his conduct in the search and

seizure was unconstitutional, Ruth has not presented any evidence that he has suffered damages as

a result of the violation. Ruth, on the other hand, argues that because Ford’s stop and search of his

person and his bag were unlawful, the subsequent arrest for carrying a concealed weapon,

prosecution, and conviction were also contrary to law. 

In 2001, the Third Circuit Court of Appeals declared: 

When we reflect on the interests protected by the Fourth Amendment, we believe

that it follows that a plaintiff cannot recover the litigation expenses incurred because

police officers discovered criminal conduct during an unconstitutional search. As the

Second Circuit has said in a case much like ours, "The evil of an unreasonable search

or seizure is that it invades privacy, not that it uncovers crime, which is no evil at

all." Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999). If Carey [v.

Piphus, 435 U.S. 247 (1978)] instructs that we should assess liability in terms of the

risks that are constitutionally relevant, then damages for an unlawful search should

not extend to post-indictment legal process, for the damages incurred in that process

are too unrelated to the Fourth Amendment's privacy concerns. We agree with

Townes: "Victims of unreasonable searches or seizures may recover damages directly

related to the invasion of their privacy--including (where appropriate) damages for

physical injury, property damage, injury to reputation, etc.; but such victims cannot

be compensated for injuries that result from the discovery of incriminating evidence

and consequent criminal prosecution." 176 F.3d at 148. 

Hector v. Watt, 235 F.3d 154, 157 (3rd Cir. 2001). Similarly, the Second Circuit Court of Appeals

in Townes, held that the purpose of granting an aggrieved person the right to assert § 1983 damages

is to provide an avenue to compensate for the injuries caused by the deprivation of constitutional

rights. Townes v. City of New York, 176 F.3d 138, 147 (2nd Cir. 1999). 

The Court finds the opinions of the Second and Third Circuits to be persuasive. Here, Ruth
9

 Based on the conclusory allegations in Ruth’s complaint and the arguments in his

response in opposition to Ford’s motion, it appears that his malicious prosecution claim was

brought under state law.

13

is seeking damages because of his incarceration, legal fees, loss of employment opportunities , and

emotional distress. These damages, however, appear to be connected to his time in jail, as well as

the felony conviction, and probationary sentence - but not to the alleged invasion of his privacy

under the Fourth Amendment. As such, they are not related to the constitutional injury which he

claims to have suffered at the hands of Ford.

Moreover, the Court in Townes recognized that those plaintiffs who allege the elements of

a common law malicious prosecution claim under § 1983 may recover “damages for confinement

imposed pursuant to legal process.” Id. at 149. However, assuming that Ruth has brought a

malicious prosecution claim under § 19839

 against Ford, the Sixth Circuit Court of Appeals has held

that “[an officer] cannot be held liable for malicious prosecution when he did not make the decision

to prosecute [the plaintiff].” Skousen v. Brighton High School, 305 F.3d 520, 529 (6th Cir. 2002).

Ruth has not proffered any evidence to show that Ford had anything to do with the decision by the

Wayne County Prosecutor’s Office to bring charges against him. On the basis of the current record,

the person who faxed all of the relevant information to the prosecutor was Detective Ricky Good.

In addition, a second intervening cause of Ruth’s prosecution is the decision by the Wayne County

Circuit Court to deny his motion to suppress. See Powers v. Hamilton Co. Public Def. Comm., 501

F.3d 592, 611 (6th Cir. 2007) (defendant shielded from liability where trial judge made a legally

erroneous decision).

Thus, because Ruth’s claimed damages are too remote from the constitutional injuries that

were inflicted upon him by Ford, the Court holds that he is not entitled to recover any damages
14

arising out of his incarceration (e.g., legal expenses, court costs) and the loss of employment

opportunities due to his conviction. 

Furthermore, Ruth has failed to show that he has suffered an actual injury as a result of

Ford’s alleged violation of his Fourth Amendment rights. The Supreme Court opined in 1978 that

a § 1983 plaintiff is not entitled to receive compensatory damages unless he proffers proof of an

actual injury. Carey, 435 U.S. at 264. Nearly a decade later, the Supreme Court held that § 1983

litigants cannot recover compensatory damages based on the inherent “value” of a constitutional

right. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986). Although Carey held that

mental and emotional damages are compensable under § 1983, these damages are recoverable only

if the plaintiff has shown “competent evidence concerning the injury.” Carey, 435 U.S. at 264 n.

20 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)).

In this case, Ruth is not entitled to be compensated by Ford for the alleged damages that he

sustained as a result of his arrest, prosecution, and conviction for the crime of carrying a concealed

weapon. Thus, assuming that a jury finds that Ford violated Ruth’s constitutional rights in stopping

him and searching his person and cooler bag, he is only entitled to damages stemming therefrom.

Here, Ruth has neglected and/or failed to present evidence that he sustained any injury as a result

of Ford’s alleged unconstitutional conduct. Although Ruth made vague allegations during his

deposition of the stress that he incurred as the result of Ford’s misconduct, he has failed to establish

that it was a result of the alleged Fourth Amendment violation. Moreover, he has not proved these

damages with the reasonable specificity that is required to survive Ford’s dispositive motion. See,

e.g., Rodgers v. Fisher Body Div., General Motors Corp., 739 F.2d 1102, 1108 (6th Cir. 1984)

(“While jurors might easily infer that going on welfare and losing one's car would cause emotional
15

distress, plaintiff has not demonstrated his mental distress with the specificity required by Carey v.

Piphus.”) Ruth has only proffered a mere scintilla of evidence to show that he suffered actual injury

as a result of Ford’s unconstitutional invasion of his privacy.

Notwithstanding Ruth’s inability to prove actual injury, the Supreme Court held in Stachura

that nominal damages may be recovered without proof of an actual injury. See Stachura, 477 U.S.

at 308 n.11. Thus, if a jury finds that Ford violated Ruth’s constitutional right to be free from

unreasonable searches and seizures, he is entitled to an award of nominal damages. 

Ruth also asserts in his complaint that he is entitled to receive punitive damages as a result

of Ford’s misconduct. Punitive damages are available under § 1983 if a jury finds that the

defendant’s conduct was “motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).

Although Ruth has not advanced any arguments or evidence upon which to support his claim that

Ford had acted with any evil motive or intent, a jury could arguably determine that the claimed

misconduct was committed with a callous indifference toward his constitutional rights when seizing

and searching him without reasonable suspicion of criminal activity. 

Therefore, the Court determines that Ruth may only present his § 1983 claim of unreasonable

search and seizure to recover nominal and punitive damages, if any. 

IV.

With respect to Ruth’s tort claims, Ford believes that he is entitled to governmental immunity

because he made discretionary decisions in good faith and during the scope of his employment as

a police officer. In opposing Ford’s defense, Ruth states that these claims are “specifically

recognized in Michigan Law as an exception to governmental immunity.” 
16

The Governmental Tort Liability Act states, in pertinent part:

Sec. 7. (1) Except as otherwise provided in this act, a governmental agency is

immune from tort liability if the governmental agency is engaged in the exercise or

discharge of a governmental function. Except as otherwise provided in this act, this

act does not modify or restrict the immunity of the state from tort liability as it

existed before July 1, 1965, which immunity is affirmed.

(2) Except as otherwise provided in this section, and without regard to the

discretionary or ministerial nature of the conduct in question, each officer and

employee of a governmental agency, each volunteer acting on behalf of a

governmental agency, and each member of a board, council, commission, or

statutorily created task force of a governmental agency is immune from tort liability

for an injury to a person or damage to property caused by the officer, employee, or

member while in the course of employment or service or caused by the volunteer

while acting on behalf of a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he

or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a

governmental function.

(c) The officer's, employee's, member's, or volunteer's conduct does not amount to

gross negligence that is the proximate cause of the injury or damage.

(3) Subsection (2) does not alter the law of intentional torts as it existed before July

7, 1986.

Mich. Comp. Laws § 691.1407(2), (3). 

In 2008, the Michigan Supreme Court issued an opinion which addressed the “substantial

confusion [that had] arisen regarding the proper interpretation of the Ross [v. Consumers Power Co.

(On rehearing), 410 Mich. 567 (1984) ] test for individual governmental immunity as it is applied

to intentional torts.” Odom v. Wayne County, 482 Mich. 459, 473 (2008). The Court then indicated

that in order to be immune from liability for intentional torts, the petitioner- governmental employee

must establish that (1) the acts were taken during the course of employment, (2) he was acting, or

reasonably believed he was acting, within the scope of his authority, (3) he was acting in good faith,

and (4) the challenged act must be a discretionary one. Id. The Court also held that to establish that

he acted in good faith, “the proponent of individual immunity must establish that he acted without
17

malice.” Id. at 475. With respect to whether an act is ministerial or discretionary, the Court

explained that “[a]n officer must use his judgment to determine whether there is reasonable

suspicion to investigate or probable cause to arrest and to determine the amount of force necessary

to effectuate an arrest,” and thus these actions are discretionary. Id. at 476. In addition, the Odom

Court determined that governmental employees bear the burden of showing that they are entitled to

governmental immunity as an affirmative defense. Id. at 479.

The Court first notes with significant interest that Ruth has failed to address or even cite the

Odom opinion of the Michigan Supreme Court. Rather, he points to a decision by the Michigan

Court of Appeals case issued in 1997. Inasmuch as Odom represents the most recent rule from the

highest court of the State of Michigan, the Court will apply its holdings to the case at bar.

Applying the above-referenced Odom standards to the case sub judice, the Court holds that

Ford is entitled to governmental immunity. It is undisputed that (1) the acts in question occurred

during the scope of Ford’s employment as a police officer and (2) he was acting, or reasonably

believed to be acting, under the scope of his authority. Also, Ford asserts - without any refutation -

that he did not act with malice at any time during his encounter with Ruth. Thus, Ford is entitled to

governmental immunity as to all three of Ruth’s intentional tort claims (i.e., false arrest, false

imprisonment, malicious prosecution). 

V.

Accordingly and for the reasons that have been stated above, the Court grants in part, and

denies in part, Ford’s motion for summary judgment.
18

IT IS SO ORDERED.

Dated: August 17, 2010 s/Julian Abele Cook, Jr. 

 Detroit, Michigan JULIAN ABELE COOK, JR.

United States District Court Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective

email addresses or First Class U.S. mail to the non-ECF participants on August 17, 2010.

s/ Kay Doaks 

Case Manager