UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RUSSELL MARCILIS II, FELICIA MARCILIS,

JASMINE MARCILIS, RUSSELL MARCILIS I,

and MARIE MARCILIS,

Plaintiffs,

v. Case No. 09-11624

 Hon. Lawrence P. Zatkoff

REDFORD TOWNSHIP, BRIAN JONES,

ERIC WOODALL, ERIC GILLMAN,

JOHN BUTLER, KEVIN JEZIOROWSKI,

WILLIAM HAND, CHRIS RICHARDSON,

and OTHER UNNAMED OFFICERS, 

in their individual and official capacities,

 Defendants.

____________________________________/

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,

in the City of Port Huron, State of Michigan, on November 18, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on separate Motions for Summary Judgment filed by

Defendant Chris Richardson [dkt 52] and Defendants Redford Township, Brian Jones, Eric Woodall,

Eric Gillman, John Butler, Kevin Jeziorowski, and William Hand [dkt 54]. Both motions have been

fully briefed. The Court finds that the facts and legal arguments are adequately presented in the

parties’ papers such that the decision process would not be significantly aided by oral argument.

Therefore, pursuant to E.D. Mich. L.R. 7.1 (f)(2), it is hereby ORDERED that the Motions be

resolved on the briefs submitted, without oral argument. For the following reasons, Defendant
2

Richardson’s Motion for Summary Judgment and the remaining Defendants’ Motion for Summary

Judgment are GRANTED IN PART and DENIED IN PART. 

II. BACKGROUND

Plaintiffs’ complaint arises from a federal task-force narcotics raid at two homes by Drug

Enforcement Agents (Brad Boyle and Dave Livingston), Redford police officer (Kevin Jeziorowski),

Redford Township police officers ( Brian Jones, Eric Woodall, Eric Gillman, and John Butler), and

Detroit police officer Chris Richardson (collectively “Defendants”). On March 2, 2007, search

warrants were executed on two homes: 5966 Manistique Street, Detroit, Michigan, where Russell

Marcilis and Marie Marcilis lived, and where Jasimine Marcilis was visiting; and 17268 Suffield,

Clinton Township, Michigan, where Russell Marcilis, II, and Felicia Marcilis lived. Probable cause

for the search warrants was based on information from a confidential informant—who provided

information about the possession and sale of illegal narcotics at the locations, as well as information

from controlled purchases of cocaine—and Officer Jones’s corroborating investigation. This

information was included in affidavits attached to each search warrant, which were then signed by

a magistrate judge. 

A. 17268 SUFFIELD, CLINTON TOWNSHIP, MICHIGAN

According to Defendants, upon arriving at the home, the officers knocked and announced

their presence and purpose. After waiting fifteen seconds, no one answered the front door so the

officers forcibly entered. Plaintiffs disagree; Russell II and Felicia allege that they did not hear

Defendants knock and announce. They were lying awake in their bed when Defendants allegedly

entered the home and held them at gun point. Defendants then ordered Russell II and Felicia to lie

on the floor.
3

During the search, Officer Jones asked Russell II where the fifteen kilograms of cocaine and

$300,000 were located. After approximately ten minutes, Russell II and Felicia were handcuffed

and placed in a Redford Police car, which they remained in for thirty-minutes. When the search

ended, Felicia was jailed at the Redford Police station for approximately eight hours. She was not

questioned or charged with any crime. Unlike Felicia, Russell II contends that he spent three days

in jail. Defendants’ dispute this and contend that Russell II and Felicia were only held for one day

at the Redford Police Station. At the time of his release, Russell II was not charged with any crime.

 B. 5966 MANISTIQUE STREET, DETROIT, MICHIGAN

After searching the Suffield home, Defendants arrived at the Manistique home. Russell

(Russell II’s father) and Marie lived at the home. Jasmine Marcilis, a granddaughter, was visiting

Russell and Marie on the day of the search. According to Defendants, the officers knocked and

announced before entering through the open front door and the second, unlocked security door.

Plaintiffs also dispute this; Russell and Marie claim Defendants failed to knock or announce before

entering in combat gear with masks on their faces (according to Russell II and Felicia, 17268

Suffield was entered with officers wearing similar combat gear). Russell, Marie, and Jasmine allege

that Defendants entered through the front door of the home unannounced, pointed guns at them,

detained them for 90 minutes, and tore up their house.

When Defendants entered the home, the upper-half of Russell’s body was covered in

bandages because he was seriously burned from a cooking accident. Defendants allegedly placed

Russell on the floor because he was responding slowly to an order to lie on the floor, and Defendants

grabbed Marie’s arms and pushed her to the couch, causing bruises. 

Marie also suffered from two medical conditions—cancer and diabetes. These conditions
4

require her to take several medications. During the search, Marie experienced difficulty breathing;

when she asked Defendants if she could take her medication, the request was denied. According to

Marie, Defendants “took her medications, destroyed vials of insulin, and broke her insulin needles,”

even though the medications were in prescription containers and she offered to show the medical

documentation regarding them. 

The search lasted ninety minutes. According to Plaintiffs, Defendants initially pointed guns

at them. Even during the remainder of the search, Defendants held their guns by their sides in a

ready-to-shoot position. When the search concluded, neither Russell, Marie, nor Jasmine were

charged with a crime. A month after the search, Marie suffered a stroke.

According to Defendants, the searches produced “cocaine, drug paraphernalia, cash, jewelry

and other drug related articles.” At the Suffield home, Defendants seized: money, two small bags

with leafy material inside, two Rolex watches and two other brand watches, two cell-phones, a jar

with leafy material inside, three chains, four bracelets, one ring, paper documents, a 1997 Cadillac

Deville, a 2006 Dodge Charger, and a 2006 Ford pickup. At the Manistique home, Defendants

seized: an empty suspected kilo wrapper, a clear plastic bag with white substance, two digital scales,

and paper documents. Defendants allege that other than the confiscated cash, which Russell agreed

to release to Defendant Redford Township (“the Township”), all of the items were returned to

Plaintiffs. Plaintiffs, however, contend that some items have not been returned. Plaintiffs allege that

Defendants stole a wedding ring (allegedly not returned by Defendants), concealed-weapons

permits, cash, bank receipts, mail, bills, photographs, and three automobiles (returned one week

later).

C. RUSSELL II’S PROSECUTION
5

On November 8, 2007, six months after the searches, Officer Woodall filed a criminal

complaint against Russell II for the knowing, intentional and unlawful possession of cocaine with

the intent to distribute it. A federal magistrate judge issued a warrant for Russell II’s arrest. On

January 9, 2008, an order was entered dismissing the criminal complaint without prejudice so the

government could gather more evidence and conduct further investigation.

D. PROCEDURAL HISTORY

On April 30, 2009, Plaintiffs filed their ten count complaint with the Court, wherein

Plaintiffs alleged that Defendants and the Township deprived Plaintiffs of certain statutory and

Constitutional rights. The Court dismissed Plaintiffs’ Assault and Battery, False Arrest/False

Imprisonment, Malicious Prosecution, and Gross Negligence state-law claims. On October 26,

2009, Plaintiffs filed an amended complaint with the counts that the Court retained jurisdiction over.

The amended complaint contains the following six counts: Count I (Excessive Force—42 U.S.C.

§ 1983); Count II (Illegal Search and Seizure—42 U.S.C. § 1983); Count III (Malicious

Prosecution—42 U.S.C. § 1983); Count IV (Violation of the First Amendment—42 U.S.C. § 1983);

Count V (Failure to Knock and Announce—42 U.S.C. § 1983); and Count VI (Constitutional

Violations against the Township—42 U.S.C. § 1983). Plaintiffs seek compensatory and punitive

damages pursuant to 42 U.S.C. § 1983 and costs, interest, and attorney fees pursuant to 42 U.S.C.

§ 1988.

III. LEGAL STANDARD

Summary judgment is proper where “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
6

56(c); Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001). A genuine issue of material fact exists

when there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). The moving

party bears the initial burden of demonstrating the absence of any genuine issue of material fact, and

all inferences should be made in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The moving party discharges its burden by “‘showing’—that is, pointing out to

the district court—that there is an absence of evidence to support the nonmoving party’s case.”

Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at 325). 

Once the moving party has met its burden of production, the burden then shifts to the

nonmoving party, who 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, 477 U.S. at 324 (citing Fed. R. Civ. P. 56(e)). The nonmoving

party “must do more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[T]he mere

existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient

[to defeat a motion for summary judgment]; there must be evidence on which the jury could

reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252 (emphasis added).

IV. ANALYSIS

Plaintiffs allege violations of the Fourth Amendment and First Amendment under 42 U.S.C

§ 1983 against the individual Defendants, and against Defendant Redford Township for municipal

liability under 42 U.S.C § 1983 based on its alleged failure to train and supervise its officers.

Defendant Richardson specifically argues he is entitled to summary judgment because Plaintiffs
1

Defendant Richardson also seeks to dismiss Plaintiffs’ state-law claims for assault and

battery, false arrest, false imprisonment, malicious prosecution, and gross negligence. However,

the Court finds that since Plaintiffs’ state-law claims have previously been dismissed, Defendant

Richardson’s motion is moot to the extent that it relates to Plaintiffs’ state-law claims. 

7

have not established he was an active participant in the raids. The Court disagrees and finds

Plaintiffs have shown sufficient evidence through Defendants’ answers to Plaintiffs’ written

interrogatories to deny Defendant Richardson summary judgment on that ground. See Smith v. Ross,

482 F.2d 33, 36 (6th Cir. 1973). 

We agree with appellants that a law enforcement officer can be liable

under § 1983 when by his inaction he fails to perform a statutorily

imposed duty to enforce the laws equally and fairly, and thereby

denies equal protection to persons legitimately exercising rights

guaranteed them under state or federal law. Acts of omission are

actionable in this context to the same extent as are acts of

commission.

Id. at 36. Defendants argue that they are entitled to summary judgment on the basis of qualified

immunity.1

A. CLAIMS AGAINST INDIVIDUAL DEFENDANTS

1. Qualified Immunity

“Under the doctrine of qualified immunity, ‘governmental 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.’” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). The Supreme Court has repeatedly held that the plaintiff has the ultimate

burden of proof to show that a defendant is not entitled to qualified immunity. Harlow, 457 U.S.

800, 818 (1982). See also Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991). Only
2

The Sixth Circuit has applied either a three-step test or a two-step test, as employed here. 

The Sixth Circuit’s more recent decisions also have applied the two-step test. See, e.g., Miller v.

Sanilac Cnty., 606 F.3d 240, 247 (6th Cir. 2010); Dominguez v. Corr. Med. Servs., 555 F.3d 543,

549 (6th Cir. 2009); Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008); compare Abel v.

Harp, 278 Fed. Appx. 642, 649 (6th Cir. 2008) (applying a three-step test but noting that the

Supreme Court initially announced a two-step test).

8

if “the legal question of immunity is completely dependent upon which view of the [disputed] facts

is accepted by the jury” will it be submitted to the jury Humphrey v. Mabry, 482 F.3d 840, 846 (6th

Cir. 2007) (quoting Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir. 1989)). 

To determine whether a defendant is entitled to qualified immunity requires two inquiries:2

“First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a

constitutional violation has occurred? Second, was the right clearly established at the time of the

violation?” Phillips, 534 F.3d at 538-39. With respect to the second inquiry, the Supreme Court

has stated:

The determination as to whether the right was “clearly established”

is a determination that “must be undertaken in light of the specific

context of the case, not as a broad general proposition.” In other

words, “the contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates

that right.” “The relevant, dispostive inquiry in determining whether

a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted.”

Saucier v. Katz, 533 U.S. 194, 202 (internal citations omitted).

The qualified immunity analysis recognizes that reasonable mistakes may be made regarding

the legal constraints on particular police conduct. If the officer’s mistake is reasonable, then

qualified immunity applies. Saucier, 533 U.S. at 205-06. “This accommodation for reasonable

error exists because ‘officials should not err always on the side of caution’ because they fear being
9

sued.” Hunter, 502 U.S. at 229. 

a. Count I: Excessive Force

The Fourth Amendment protects individuals from the application of excessive force by lawenforcement personnel. Watkins v. City of Southfield, 221 F.3d 883, 887 (6th Cir. 2000). The Court

reviews claims of excessive force under a standard of reasonableness. Saucier, 533 U.S. at 209.

The Court accordingly views the use of force from the perspective of a reasonable law-enforcement

officer on the scene rather than retrospectively. Graham v. Connor, 490 U.S. 386, 396–97 (1989).

The analysis is to be conducted under the totality of the circumstances and without regard to

intentions or motivations. Id. at 397. The inquiry “requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Id. at 396. The Court’s analysis must

“embody allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Id. at 396–97. 

When resolving issues of excessive force, the Court must “carefully balance the nature of

the intrusion on the [individual’s] Fourth Amendment rights against ‘the countervailing

governmental interests at stake.’” St. John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005) (quoting

Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Whether law-enforcement officials employed the least

forceful alternative is not determinative in excessive-force claims. See Tallman v. Elizabethtown

Police Dep’t, 167 Fed. Appx. 459, 463 (6th Cir. 2006). Accordingly, “not every push or shove, even

if it may later seem unnecessary . . . violates the Fourth Amendment.” Burchett v. Kiefer, 310 F.3d
10

937, 944 (6th Cir. 2002). 

Here, the Court finds that Plaintiffs have made sufficient allegations to make out that a

constitutional violation may have occurred with respect to whether the individual Defendants

applied excessive force in violation of the Fourth Amendment. Plaintiffs base Defendants’

application of excessive-force claim on the following alleged acts: (1) Russell was placed on the

floor, even though half of his body was covered in medical bandages; (2) Marie was threatened that

she would be hit with a gun; (3) Marie also was grabbed and pushed onto a couch, which caused

bruises; and (4) Russell, Marie, and Jasmine had guns pointed at them for thirty minutes. Relying

on Miller v. Sanilac Cnty., 606 F.3d 240, 253 (6th Cir. 2010), Plaintiffs argue that these acts by

Defendants amount to gratuitous violence. 

In Miller, the plaintiff alleged that the officer spun plaintiff around, slammed him against his

vehicle and kicked his feet apart during a traffic stop. Id. Although the plaintiff admitted he was

not hurt, the Sixth Circuit determined a jury could reasonably find such actions by the officer to

constitute excessive force when “the offense is non-violent, the arrestee posed no immediate safety

threat, and the arrestee had not attempted to escape and was not actively resisting.” Id. at 253-254.

Here, Plaintiffs further allege that they were not suspected of committing violent crimes, posed no

immediate threat to Defendants’ safety, made no attempts to evade or escape the residences, and

made no attempts to resist arrest.

In response, Defendants contend that it is reasonable and necessary for an officer to draw his

weapon to avert any potentially violent situation when executing a search warrant for narcotics,

since such searches could lead to violence. Defendants rely on Ingram v. City of Columbus, 185

F.3d 579, 591 (6th Cir. 1999), which held it is reasonable for police to handcuff and detain plaintiffs
11

with the display of firearms when the police act out of “a justifiable fear of personal safety.” Here,

Plaintiffs alleged that Russell was half-encapsulated in medical bandages, none of the occupants of

the home had violent weapons, and nothing indicated Russell or Marie were not complying with the

Defendants’ orders.

Defendants further aver that holding Plaintiffs at gun point or leaving their guns drawn in

a ready-to-shoot position was not an application of force, but merely a show of force which other

courts have distinguished. See Hinojosa v. City of Terrell, 834 F.2d 1223, 1231 (5th Cir. 1988) (“By

giving the police officer the ability to pull out and point a service resolver at someone without

risking tort liability, he may be able to abort a potentially violent situation.”). The Court, however,

must review all of Defendants’ actions together when assessing whether Defendants’ application

of force was excessive. Therefore, even if the Court were to agree with Hinojosa’s rationale, from

the totality of the circumstances the Court finds that Plaintiffs have made sufficient allegations to

make out a claim for application of excessive force. See Robinson v. Solano Cnty., 278 F.3d 1007,

1015 (9th Cir. 2002) (en banc) (pointing a gun at an unarmed suspect who poses no danger

constitutes excessive force).

Moreover, although Defendants point to Plaintiffs’ absence of serious injuries and absence

of subsequent medical treatment to show that the application of force was reasonable, such

arguments go to Plaintiffs’ damages. According to Plaintiffs, Marie had bruises on her arms and

had to be hospitalized one month after the incident for a stroke. Although Plaintiffs do not

specifically allege that Marie’s hospitalization is attributable to Defendants’ actions, Plaintiffs need

not suffer serious injuries for force to be unreasonable under Sixth Circuit precedent. Therefore,

viewing the evidence in the light most favorable to Plaintiffs, the Court finds under the first inquiry
12

that Plaintiffs have made sufficient allegations for the Court to hold that a constitutional violation

may have occurred. Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995) (detaining a suspect

using guns and handcuffs violated the Fourth Amendment as there was “simply no evidence of

anything that should have caused the officers to use the kind of force they are alleged to have used”).

Second, in the Sixth Circuit, it is clearly established that the authority of officers to detain

the occupants of a premises during a search for contraband is limited and that officers are only

entitled to apply reasonable force when detaining the occupants. Vance v. Wade, 546 F.3d 774, 784

(6th Cir. 2008); Michigan v. Summers, 452 U.S. 692, 704-06 (1981); Muehler v. Mena, 544 U.S. 93,

98 (2005). Given the facts and circumstances in this case, a reasonable officer may not understand

he was violating Plaintiffs’ rights. See Saucier, 533 U.S. at 202 (“The determination as to whether

the right was ‘clearly established’ is a determination that . . . ‘the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.’”)(internal citations

omitted). Once the homes were secured, the Defendants only continued to detain Plaintiffs during

the remainder of the searches. Specifically, Russell, Marie, and Jasmine were not even handcuffed.

 The Defendants could have made a reasonable mistake about their personal safety and the kind of

force to use when entering the homes, placing Plaintiffs on the floor, and holding Russell, Marie,

and Jasmine at gun point for a period of time. See Saucier, 533 U.S. at 205-06 (stating qualified

immunity still applies if the officer’s mistake is reasonable); Ingram, 185 F.3d at 579 (holding that

it is reasonable for police to handcuff and detain plaintiffs with the display of firearms when the

police act out of “a justifiable fear of personal safety.”) Accordingly, the Court finds that the

individual Defendants are entitled to qualified immunity. 

b. Count II: Unreasonable Search and Seizure
13

i. Search

The Fourth Amendment guarantees that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated . . . .” The Fourth Amendment provides that no search warrant may issue “but upon

probable cause supported by Oath or Affirmation and particularly describing the place to be

searched and the person or things to be seized.” Probable cause exists if there is a “fair probability”

or reasonable grounds for belief, supported by less than prima facie proof but more than “mere

suspicion” that police would find evidence of a crime at the location of the proposed searched.

United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (quoting United States v. Bennett, 905

F.2d 931, 934 (6th Cir. 1990) & United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005)). The

probable cause determination is limited to the four corners of the affidavit. Jackson, 470 F.3d at

306. Such determination is based on the totality of the circumstances. United States v. Coffee, 434

F.3d 887, 892 (6th Cir. 2006). 

(a). Information Based on Confidential Informant

Where the information contained in the affidavit is based on a confidential informant,

probable cause may exist “when there is some independent corroboration by the police of the

informant’s information.” Jackson, 470 F.3d at 307 (quoting United States v. Tuttle, 200 F.3d 892,

894 (6th Cir. 2000)). Plaintiffs argue that probable cause did not exist because the search warrants

were supported by a confidential informant. The confidential informant’s prior track record of

veracity or criminal background was also not stated in the affidavit. However, the unnamed

informant’s reliability was corroborated by an investigation conducted by Officer Jones. Therefore,

the Court finds that, a fair probability existed, given the totality of the circumstances that Defendants
14

would find evidence of narcotics crimes. A confidential informant’s information that Russell II was

involved in the illegal possession and sale of cocaine was corroborated by an independent

investigation by Officer Jones. The investigation itself provided additional information, and Officer

Jones’s made a controlled purchase of cocaine at the residence. 

(b). Stale Information

In the context of drug crimes, information goes stale very quickly “because drugs are usually

sold and consumed in a prompt fashion.” United States v. Frechette, 583 F.3d 374, 378 (6th Cir.

2009). But evidence of ongoing criminal activity will generally defeat a claim of staleness. See

United States v. Canan, 48 F.3d 954, 958 (6th Cir. 1995) (holding that though conduct described in

an affidavit was four years old, evidence of an ongoing nature defeated a claim of staleness).

Moreover, “where recent information corroborates otherwise stale information, probable cause may

be found.” United States v. Henson, 848 F.2d 1374, 1381-1382 (6th Cir. 1988). 

In addition, Plaintiffs attack the timeliness of the information found in the affidavits used to

create probable cause. Plaintiffs argue that the information is stale and cannot be the basis for

probable cause because a paper wrapping and green leafy material obtained from the garbage of the

Suffield home and drug activity thirty-five hours prior to the magistrate judge signing the search

warrants was too old. Plaintiffs are correct to assert that drug crimes pose a unique context. In this

case, even though some information recounts activity that occurred in November 2006,the affidavits

recount continuing activity from November 2006 to thirty-five hours before the affidavit was

presented to the magistrate judge. In conjunction with a controlled purchase of cocaine from the

Manistique home thirty-five hours before presenting the affidavit to the magistrate judge, from

January 2007 until May 2007, the police also made several controlled purchases of cocaine and
15

arranged payoffs of narcotic debts with pre-recorded narcotic funds. All of the purchases occurred

at the Manistique home or were documented in the affidavits with how they related to the

Manistique or Suffield home. On March 7, 2007, a cigar wrapping and suspected end of a marijuana

joint were found in the garbage placed in front of the Suffield home. On March 12, 2007, a blunt

wrapper was located in the front lawn of the Manistique home. Because of the continuing narcotics

activity documented in the affidavits and the controlled purchase of cocaine only thirty-five hours

before the search warrants were signed, the Court finds that Plaintiffs’ staleness claim must fail.

(c). Unlawful Seizure of Plaintiffs’ Items

Items seized during the execution of a search warrant must be described within the search

warrant to prevent officers seizing one thing when the search warrant described another in violation

of the Fourth Amendment. United States v. Wright, 343 F.3d 849, 863 (6th Cir. 2003) (quoting

Marron v. United States, 275 U.S. 192, 196 (1927). However, items not described in the search

warrant may be seized if they “reasonably related to the offense which formed the basis for the

search warrant.” United States v. Brown, 49 F.3d 1162, 1169 (6th Cir. 1995) (quoting United States

v. Fortenberry, 860 F.2d 628, 636 (5th Cir. 1988) (citation omitted)).

In Wright, the plaintiff argued, like here, that officers seizure of a leather vest, a holster, a

red address book, a brown address book, a newspaper article, documents and a letter from his

residence were outside the scope of the warrant. The Wright court held that seizure of the items was

constitutional because all of the items directly related to the crimes charged in the affidavit attached

to the search warrant—drug conspiracy and murder. Wright, 343 F.3d at 863. The court explained

The vest was evidence of Wright’s involvement with the Avengers

motorcycle club; the holster indicated Wright’s possession of a gun;

the address books contained the names and phone numbers of

co-conspirators including Chase and other Avengers; the newspaper
3

Plaintiffs also argue that the Suffield home was absent from the search warrant. 

Plaintiffs argument must fail because it disregards the second search warrant for the Suffield

home that Defendants’ obtained.

16

article about the murder of Moore showed that Wright had an interest

in the crime; the documents linked Wright to his alias “Arthur

Anderson”; and the letter from Chase described the connection of

Wright and Chase to the drug conspiracy.

Id.

Plaintiffs argue that the officers’ seized items outside of the scope of the search warrants

when they seized money, three automobiles, bracelets, a diamond ring, watches, glasses, concealedweapons permits, bills, and photographs from the Suffield home; and a property deed, birth

certificates, a marriage license, and photographs from the Manistique residence.3

The search warrants authorized Defendants to seize the following items:

All suspect controlled substances, all items used in connection with

the sale, manufacture, use, storage, distribution, transportation,

delivery or concealment of controlled substances. All books, records

and tally sheets indicating sales of controlled substances. All

prerecorded funds used to make purchases of controlled substances,

all monies and valuables derived from the sale of controlled

substances and any items obtained through the sale of controlled

substances. All firearms and items establishing ownership, control,

occupancy or possession of the above-described place. All

photographs, photo albums, and video cassettes that depict controlled

substances and/or proceeds from controlled substances. All bank

records, bank statements and safety deposit keys. 

 Similar to this case, in United States v. Blair, 214 F.3d 690, 697 (6th Cir. 2000), the search

warrant was issued to find items related to narcotics transactions or the proceeds of narcotics

transactions. The court noted that vehicles, jewelry, and money would be included as items that

could be properly seized. Id. at 697. Here, the search warrant also authorized seizure of all items

used in connection with the sale of controlled substances and records of controlled-substance
17

transactions. Therefore, Plaintiffs’ argument that money, three automobiles, bracelets, a diamond

ring, and watches were unconstitutionally seized is unpersuasive. Although Plaintiffs’ fail to specify

the exact information contained in the bills and photographs, those documents along with the

concealed-weapons permits, birth certificates, a marriage license, and a property deed contain links

and information that are reasonably related to the sale and possession of narcotics, possession and

ownership of firearms, and records depicting controlled substances. See United States v. Savoy, 280

Fed. Appx. 504, 511 (6th Cir. 2008) (holding that seizure of videotapes that officers believed at the

scene contained information described in the search warrant, and then later discovering that some

videotapes also contained information not related to crime did not make the seizure

unconstitutional). 

Here, the warrant allowed seizure of controlled substances and items used in the

transportation, delivery or concealment of controlled substances, and all monies and valuables

derived from the sale of controlled substances. Accordingly, the Court finds that Plaintiffs have not

made out a constitutional violation because the Defendants did not exceed the scope of the warrant

by seizing the items taken from the home when the items seized by Defendants reasonably related

to the suspected possession and sale of illegal narcotics. See Blair, 214 F.3d at 697 (holding that

the Fourth Amendment is not violated when officers executing the warrant exercise minimal

judgment as to whether a particular document falls within the described category). 

( d). Conclusion

Therefore, the Court finds that Defendants are entitled to qualified immunity as to Plaintiffs’

claims that Defendants violated their Fourth Amendment rights by conducting an unreasonable

search. 
18

ii. Seizure

The tactics employed during a search are generally left to the discretion of the officers

executing the search warrant. United States v. Keszthelyi, 308 F.3d 557, 571 (1979). “[W]ith

respect to police/citizen contact, [the Fourth Amendment guarantees] vest only after [a] citizen has

been seized.” United States v. Richardson, 949 F.2d 851, 855 (6th Cir. 1991). “A seizure occurs

where, ‘in view of all the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.’” Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006) (quoting

United States v. Mendenhall, 446 U.S. 544, 554 (1980)). The reasonableness of the seizure is

determined by the totality of the circumstances. Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).

 Addressing a similar context of the execution of a search warrant for drugs, the United

States Supreme Court held officers have the authority to detain occupants of a premises while a

proper search is being conducted. Michigan v. Summers, 452 U.S. 692, 704-06 (1981). In Summers,

the court held that “for Fourth Amendment purposes, . . . a warrant to search for contraband founded

on probable cause implicitly carries with it the limited authority to detain the occupants of the

premises while a proper search is conducted.” 452 U.S. at 705. The court stated “[t]he risk of harm

to both the police and the occupants is minimized if the officers routinely exercise unquestioned

command of the situation.” Id. However, the removal of a suspect from the scene of the search is

the point at which the Fourth Amendment demands probable cause. Centanni v. Eight Unknown

Officers, 15 F.3d 587, 591 (6th Cir.1994).

Here, it is alleged that Russell, Marie, and Jasmine were held with guns pointed at them for

thirty minutes of a ninety-minute search, and Russell II and Felicia were held at gun point,

handcuffed, and then taken to jail without immediately being charged. Plaintiffs claim that both
19

seizures were unreasonable under the circumstances, relying heavily on Ingram v. City of Columbus,

185 F.3d 579, 591-92 (6th Cir. 1999). In Ingram, the court held that officers did not have the right

to handcuff and detain plaintiffs at gun point while looking for a fleeing suspect in the home.

Ingram’s holding is distinguishable from this case because probable cause was determined before

entering the Suffield or Manistique homes, and Defendants had knowledge that Russell II pled guilty

to assaulting an officer.

Defendants counter that the duration of the searches were a reasonable period of time for

Defendants to secure the scenes, search for controlled substances, and make appropriate inquiries.

The parties do not dispute that a reasonable person in Plaintiffs’ circumstances would not have felt

free to leave. Viewing the facts in the light most favorable to Plaintiffs, the Court finds that Russell,

Marie, and Jasmine’s ninety-minute detention could not lead a reasonable jury to find that

Defendants unreasonably seized Russell, Marie, and Jasmine. Russell, Marie, and Jasmine were

held at gun point for only thirty minutes and were not handcuffed during the search. The Defendants

initial actions of placing Russell, Marie, and Jasmine on the floor only occurred so Defendants could

exercised command of the situation. See Summer, 452 U.S. at 705. Felicia and Russell II also fail

to make out a claim for a constitutional violation. Felicia and Russell II were only detained in the

home for ten minutes, at which point they were transferred to a police car for thirty minutes. Felicia

and Russell II were then taken to the Redford police station. 

Under the totality of the circumstances—the short detainment, the knowledge of the risk of

drug raids, probable cause supported by documented criminal activity occurring at both homes prior

to the search, knowledge Russell II pleaded guilty to assaulting an officer, and items seized during

the searches—a reasonable jury could not find that Defendants unreasonably seized Plaintiffs in
20

violation of the Fourth Amendment. See Muehler v. Mena, 544 U.S. 93, 103, 125 (2005) (Kennedy,

J., concurring) (noting that the Fourth Amendment requires that the cuffs “be removed if, at any

point during the search, it would be readily apparent to an objectively reasonable officer that

removing the handcuffs would not compromise the officers’ safety or risk interference or substantial

delay in the execution of the search”); Ingram, 185 F.3d at 591 (holding that handcuffing and

detention of Plaintiffs with the display of firearm can be permitted where there is a justifiable fear

of safety); Burchett v. Kiefer, 310 F.3d 937, 942-43 (6th Cir. 2002) (noting that Summers involved

a limited detention of the occupants of the home and was not intrusive).

Accordingly, the Court finds that Defendants are entitled to qualified immunity with respect

to Plaintiffs’ unreasonable search and seizure claims. 

c. Count III: Malicious Prosecution

To sustain a malicious prosecution claim, a plaintiff must show that (1) the criminal

prosecution terminated in the plaintiff’s favor, (2) probable cause did not exist, and (3) such

prosecution was brought with malice. McDermid v. Discover Fin. Servs., 342 Fed. Appx. 138, 145

(6th Cir. 2009). An officer has probable cause when “the facts and circumstances known to the

officer warrant a prudent man in believing that an offense has been committed.” Henry v. United

States, 361 U.S. 98, 102 (1959).

Plaintiffs contend that each element can be shown. Specifically, Plaintiffs argue that Officer

Woodall filed the criminal complaint to retaliate against Russell II once he hired an attorney to

pressure Defendants to return his wife’s wedding ring. The Court finds, however, without

addressing each element, that probable cause existed for the arrest of Russell II. See supra,

Subsection IV.A.1.b.i.a. Thus, viewing the facts in a light most favorable to Plaintiffs, the Court
21

finds Plaintiffs have not alleged sufficient facts to support a constitutional violation for malicious

prosecution, and therefore, Defendants are granted summary judgment on Count III.

d. Count IV: First Amendment Retaliation

For a plaintiff to state a First Amendment retaliation claim, it must be shown that the injury

would likely stop a person of ordinary firmness from continuing to engage in that activity, that the

conduct was constitutionally protected, and that the conduct was a motivating factor behind the

government’s actions. Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007). A plaintiff alleging

a retaliatory prosecution claim must allege and prove the absence of probable cause. Hartman v.

Moore, 547 U.S. 250 (2006).

Plaintiffs allege that Defendants violated Russell II’s constitutional right to speak out against

the Defendants regarding the illegal search and seizure, and Defendants’ failure to return Plaintiffs

seized property. The Court finds, however, that Defendants had probable cause to arrest and file a

criminal complaint against Russell II. See supra, Subsection IV.A.1.b.i.a. Accordingly, Plaintiffs’

First Amendment retaliatory prosecution claim fails as a matter of law and Defendants are granted

summary judgment on Count IV. 

e. Count V: Failure to Knock and Announce

Failure to knock and announce prior to forcibly entering a location to execute a search

warrant, absent exigent circumstances, is unreasonable under the Fourth Amendment. United States

v. Dice, 200 F.3d 978, 982 (6th Cir. 2000). To determine whether officers have complied with the

knock and announce rule requires the court to analyze the facts and circumstances on a case-by-case

basis. Richards v. Wisconsin, 520 U.S. 385, 394 (1997).

Here, Defendants argue they complied with the knock and announce rule when executing
22

both search warrants, as supported by the police incident report and the affidavit of Officer Jones.

Officer Jones contends they waited more than 15 seconds before entering the home. Through 

Plaintiffs’ statements that are supported by their affidavits and answers to interrogatories, Russell

II and Felicia contend they were only fifteen feet from the door Defendants entered and they never

heard anyone until Defendants entered the home. Russell, Marie, and Jasmine contend that

Defendants never knocked and announced when they entered the Manistique home. 

Under the first inquiry of whether Defendants are entitled to qualified immunity, Plaintiffs

have made sufficient allegations such that the Court holds a constitutional violation may have

occurred. Under the second inquiry, Sixth Circuit precedent proves that the requirement to knock

and announce was clearly established at the time Defendants entered Plaintiffs’ homes. See Dice,

200 F.3d at 982. A reasonable officer would therefore understand entering Plaintiffs’ homes without

knocking and announcing would violate Plaintiffs’ constitutional right. Thus, Defendants are not

entitled to qualified immunity on this Count. 

At this juncture, summary judgment is only appropriate where there is no genuine issue of

material fact between the parties. A reasonable jury could find that Defendants failed to knock and

announce as Plaintiffs contend; thus, a genuine question of material fact exists whether the

constitutional requirement to knock and announce before a search warrant was executed was

violated. Defendants are denied qualified immunity and summary judgment on Count V. See

Phillips v. Roane Cnty., 534 F.3d 531, 539 (6th Cir. 2008).

f. Conclusion

For the reasons set forth above, the Court holds that the Defendants are not entitled to

qualified immunity with respect to Count V, Plaintiffs’ failure to knock and announce claim.
23

However, Defendants are granted summary judgment with respect to: (1) Count I, Plaintiffs’

excessive force claim; (2) Count II, Plaintiffs’ unreasonable search and seizure claims; (3) Count

III, Plaintiffs’ malicious prosecution claim; and (4) Count IV, Plaintiffs’ First Amendment

retaliation claim. See Abel, 278 Fed. Appx. at 649 (“If the analysis under the first step suggests that

no constitutional violation transpired, then the analysis is complete, and we should grant summary

judgment to the defendant.”) (citation omitted). 

B. COUNT VI: CLAIMS AGAINST THE TOWNSHIP

In Count VI, Plaintiffs assert that the Township is liable for the actions by the individual

Defendants that allegedly violated Plaintiffs’ rights. A municipal or governmental entity can be

found liable for the violation of a constitutionally protected right only if the plaintiff can establish

that an officially executed policy, or the toleration of a custom of such municipality or governmental

entity, leads to, causes or results in the deprivation of such rights. Monell v. Dept. of Soc. Servs.,

436 U.S. 658, 690-91 (1978). Therefore, Plaintiffs must not only identify a policy or custom, they

also must connect the policy or custom to the Township and show causation between the particular

injury and the execution of that policy or custom. Garner v. Memphis Police Dept., 8 F.3d 358, 364

(6th Cir. 1993). 

1. Failure to Train

“The [Township] is liable under § 1983 for failure to train if the Plaintiff[s] can prove three

elements: (1) ‘that a training program is inadequate to the tasks that the officers must perform’; (2)

‘that the inadequacy is the result of the [Township]’s deliberate indifference’; and (3) ‘that the

inadequacy is ‘closely related to’ or ‘actually caused’ [Plaintiffs’] injur[ies].’” Plinton v. Cnty. of

Summit, 540 F.3d 459, 464 (6th Cir. 2008) (quoting Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.
24

1989) (citing City of Canton v. Harris, 489 U.S. 378, 389-91 (1989))). “To show deliberate

indifference, Plaintiff[s] ‘must show prior instances of unconstitutional conduct demonstrating that

the [Township] has ignored a history of abuse and was clearly on notice that the training in this

particular area was deficient and likely to cause injury.’” Plinton, 540 F.3d at 464 (quoting Fisher

v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). “In the alternative, ‘a single violation of federal

rights, accompanied by a showing that a municipality has failed to train its employees to handle

recurring situations presenting an obvious potential for such a violation, could trigger municipal

liability.’” Plinton, 540 F.3d at 464 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 409 (1997)).

In this case, Plaintiffs have alleged that the Township did not train the officers in the correct

application of force. Plaintiffs offer the following evidence from Officer Jones’s and Officer

Woodall’s deposition transcripts: (1) Officer Jones stated he could not remember the last time he

had such training; (2) Officer Woodall states the last time he had such training was at the police

academy; and (3) the officers do not remember any formal training on the proper forms and

procedures for obtaining or executing search warrants, although Officer Jones acknowledged he had

on-the-job training. Plaintiffs fail to present sufficient evidence that the Township had prior notice

that its officers were being inadequately trained, or that the Township ignored a history of abuse.

Moreover, Plaintiffs also fail to show that the Township’s failure to train its officers in recurring

situations posed an “obvious potential” for constitutional violations. Plinton, 540 F.3d at 464. Thus,

Plaintiffs have failed to demonstrate facts that would allow a reasonable jury to conclude that the

Township is liable under § 1983 for failing to train its officers.

2. Failure to Supervise
25

A municipality may be liable for failing to supervise its officers if it can be shown that such

failure was a deliberate or conscious choice by the municipality. Kammeyer v. City of Sharonville,

No. 01-00649, 2006 U.S. Dist. LEXIS 24058, at *33–34 (S.D. Ohio Apr. 26, 2006) (citing City of

Canton, 489 U.S. at 389)). “Determining whether deliberate indifference is present in failure to train

or supervise cases involves applying an objective rather than subjective standard.” Kammeyer, 2006

U.S. Dist. LEXIS 24058, at *34 (citing Farmer v. Brennan, 511 U.S. 825, 841 (1970)).

Plaintiffs also argue that the Township failed to supervise its officers. Plaintiffs argue that

the Township did not conduct performance evaluations on its officers or have a system in place to

review or monitor its officers. Plaintiffs argue based upon the holding in Kammeyer that this renders

the Township liable. The Court finds Kammeyer is distinguishable. In that case, the court held that

the City of Sharonville’s lack of review and monitoring system, in conjunction with the fact that the

city had notice of the defendants’ misconduct from recipients of the defendants’ actions and the

police station’s command staff reports about their dissatisfaction with a specific defendant, presented

a genuine issue of material fact. Here, Plaintiffs fail to show that the Township was on notice of a

history of constitutional violations by its officers. Plaintiffs’ responses to both motions for summary

judgment do not contain any allegations or evidence that establish that the Township was

deliberately indifferent in supervising its officers.

3. Conclusion

For the reasons stated above, the Court grants Defendants’ Motion for Summary Judgment

on Count VI of Plaintiffs’ complaint.

V. CONCLUSION

Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that Defendant
26

Richardson’s Motion for Summary Judgment [dkt 52] is GRANTED IN PART and DENIED IN

PART.

IT IS ALSO HEREBY ORDERED that the remaining Defendants’ Motion for Summary

Judgment [dkt 54] is GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: November 18, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of

record by electronic or U.S. mail on November 18, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290