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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL PHELPS and TAMMY PHELPS,

Plaintiffs,

vs.

THE CITY OF ECORSE, a municipal corporation,

CHIEF JERRY COPELAND, in his official and

individual capacities; SERGEANT CORNELIUS

HERRING, CORPORAL TIMOTHY SASSAK,

POLICE OFFICERS JOHN DOE 1-5, POLICE

SUPERVISORS ROE 1-5, DOWNRIVER

MUTUAL AID, a Michigan entity created under the

Urban Cooperation Act of 1967, a municipal

corporation, TEAM LEADER STEVEN

McINCHAK and JIM DOE 1-5 DOWNRIVER

SWAT officers, acting in their individual and

supervisory capacities.

Defendants.

Case No. 09-cv-12311

Hon. Nancy G. Edmonds

Magistrate Judge Donald A. Scheer

________________________________________________________________________/

William H. Goodman (P14173)

Julie H. Hurwitz (P34720)

Kathryn Bruner James (P71374) Attorneys for

Plaintiff

Goodman and Hurwitz, P.C.

1394 E. Jefferson Ave.

Detroit, MI 48207

(313) 567-6170

Fax: (313) 567-4827

Ethan Vinson (P26608)

Cummings, McClorey, Davis & Acho, P.L.C.

Attorneys for Defendants City of Ecorse and

Herring

33900 Schoolcraft

Livonia, MI 48150

(734) 261-2400

Fax: (734) 261-4510

Donald J. Gasiorek (P24987)

Gasiorek, Morgan & Greco, P.C.

Attorney for Defendant Timothy Sassak

30500 Northwestern Highway, Suite 425

Farmington Hills, MI 48334

(248) 865-0001

Roger A. Smith (P27722)

Garan Lucow Miller, P.C.

Attorney for Defendant McInchak, only

1111 W. Long Lake Road, Suite 300

Troy, MI 48098

(248) 641-7600

(248) 641-0222 fax

_____________________________________________________________________________/

CORRECTED FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

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CORRECTED FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

NOW COME Plaintiffs MICHAEL PHELPS and TAMMY PHELPS, by and through

their attorneys and for their First Amended Complaint, do hereby allege as follows:

PRELIMINARY STATEMENT

1. This is a civil rights action in which Plaintiffs, MICHAEL PHELPS and TAMMY

PHELPS, seek relief for Defendants’ violations, under color of state law, of their rights,

privileges and immunities secured by the Civil Rights Act of 1871, 42 U.S.C. §1983, the Fourth

and Fourteenth Amendments to the United States Constitution, and the Constitution and laws of

the State of Michigan, on or about September 25, 2008.

2. Defendant CITY OF ECORSE (hereafter “ECORSE”) is a municipal entity,

located in the State of Michigan. The CITY OF ECORSE Police Department is a unit of the

Defendant ECORSE, which at all times herein did control the operations of its Police

Department.

3. Defendant CHIEF JERRY COPELAND (hereafter “COPELAND”) was, at all

times herein the Chief of Police for the City. As such, he was the principal decision maker

and/or official policy-maker for Defendant ECORSE for purposes of the policies and practices of

its police department, with respect to searches, arrests, investigations, hiring, training,

supervision and discipline. He is sued in both his official and individual capacities, and at all

times herein was acting under color of law and within the scope of his authority as a CITY OF

ECORSE official and policymaker.

4. SERGEANT CORNELIUS HERRING (hereafter “HERRING”) was at all times

herein a supervisory Ecorse police officer, employed by and authorized to act on behalf of

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Defendant CITY, and at all times herein acting under color of law and within the scope of his

supervisory authority as a CITY OF ECORSE Police Officer.

5. Defendant CORPORAL TIMOTHY SASSAK (hereafter “SASSAK”) was at all

times herein an Ecorse police officer, employed by and authorized to act on behalf of Defendant

CITY, and at all times herein acting under color of law and within the scope of his authority as a

CITY OF ECORSE Police Officer.

6. The ROE Defendants were at all times herein Ecorse supervisory police officers,

employed by and authorized to act on behalf of Defendant CITY, and at all times herein were

acting under color of law and within the scope of their supervisory authority as CITY OF

ECORSE Police Officers.

7. The JOHN DOE Defendants were at all times herein Ecorse police officers,

employed by and authorized to act on behalf of Defendant CITY, and at all times herein were

acting under color of law and within the scope of their authority as CITY OF ECORSE Police

Officers.

8. Defendant DOWNRIVER MUTUAL AID is a municipal corporation and/or

quasi municipal corporation, created under the Urban Cooperation Act of 1967. It operates a law

enforcement service known as DOWNRIVER SWAT (Special Weapons and Tactics Team).

Hereafter these various organizations will be identified as “DOWNRIVER MUTUAL AID”.

9. Defendant TEAM LEADER STEVEN McINCHAK (hereafter “McINCHAK”)

was at all times herein a supervisory SWAT police officer, employed by and authorized to act on

behalf of Defendant DOWNRIVER MUTUAL AID, and at all times herein were acting under

color of law and within the scope of his authority.

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10. The JIM DOE Defendants were at all times herein SWAT agents and police

officers authorized to act on behalf of Defendant DOWNRIVER MUTUAL AID, and at all times

herein were acting under color of law and within the scope of their authority.

11. Theses aforementioned Defendants, acting individually, as well as jointly and

severally, did cause Plaintiffs MICHAEL PHELPS and TAMMY PHELPS to be subjected to an

unlawful and unreasonable search and seizure of their premises, false arrest, and excessive and

unreasonable force, causing them serious emotional and psychological injuries.

12. Said Defendants also caused Plaintiffs MICHAEL and TAMMY PHELPS to be

subjected to intentional infliction of emotional distress in violation of Defendants’ duties and

obligations under Michigan law such that they intentionally and/or recklessly engaged in extreme

and outrageous conduct which resulted in severe emotional distress, all in avoidance of

governmental immunity under state law.

13. Plaintiffs seek compensatory and punitive damages, declaratory relief, an award

of attorney fees and costs, and such other and further relief as the Court may deem proper.

JURISDICTION

14. Jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331 and 1343 (3) and

(4), as this action seeks redress for the violation of plaintiff’s constitutional and civil rights.

15. Plaintiffs’ claims for declaratory relief is authorized by 28 U.S.C. §§ 2201 and

2202 and Rule 57 of the Federal Rules of Civil Procedure.

16. Plaintiffs further invoke this Court’s supplemental jurisdiction, pursuant to 28

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U.S.C. §367(a), over any and all state constitutional and state law claims that are so related to the

claims within the original jurisdiction of this Court that they form part of the same case or

controversy.

VENUE

17. Venue is proper in the United States District Court for the Eastern District of

Michigan, pursuant to 28 U.S.C. § 1391 (b)(2), in that this is the judicial district in which the

events giving rise to the claim occurred.

JURY DEMAND

18. Plaintiffs demand a trial by jury in this action on each and every one of their

claims.

PARTIES

19. Plaintiffs MICHAEL PHELPS and TAMMY PHELPS are citizens of the United

States, and are and were at all times relevant herein residents of the City of Ecorse, County of

Wayne, State of Michigan.

20. Defendant ECORSE is a municipal corporation authorized under and created by

the laws of the State of Michigan and is authorized by law to maintain and operate a Police

Department. Through its agents, supervisors, operating officers, Council, Departments,

Commissions, Boards and Committees, its high level policy makers, in particular Defendant

COPELAND, herein, Defendant ECORSE establishes, promulgates and implements the policies

of the Ecorse Police Department with regard to hiring, training, supervision and discipline of the

employees, officers and agents of said Department.

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21. Defendants COPELAND, HERRING, SASSAK, JOHN DOE Defendants, and

ROE Defendants are and at all times herein were employees of the Defendant ECORSE acting

under color of law and their authority as police officers, pursuant to the municipal customs,

policies and practices of Defendant ECORSE, as established, promulgated, implemented and

maintained by the Ecorse Police Department.

22. Defendant DOWNRIVER MUTUAL AID is a municipal corporation and or quasi

municipal corporation authorized under and created by the laws of the State of Michigan. It is

authorized by law to maintain and operate law enforcement agencies. Through its agents,

supervisors, operating officers, Departments, Commissions, Boards and Committees, and its high

level policy makers, Defendant DOWNRIVER MUTUAL AID establishes, promulgates and

implements the policies of the SWAT team with regard to hiring, training, supervision and

discipline of the employees, officers, supervisors and agents of said SWAT team.

23. Defendants McINCHAK and the JIM DOE Defendants at all times herein were

agents and officers of the Defendant SWAT acting under color of law and their authority as

police officers, pursuant to the municipal customs, policies and practices of Defendant

DOWNRIVER MUTUAL AID, as established, promulgated, implemented and maintained by it.

24. As such, at approximately 9:30 p.m. on September 25, 2008 and prior thereto,

Defendants COPELAND, HERRING and ROE Defendants were the supervisors of Defendant

SASSAK and of the JOHN DOE Defendants, at all times acting in both their individual and

supervisory capacities.

25. As such, at approximately 9:30 p.m. on September 25, 2008, Defendant

McINCHAK was at all times the supervisor of the JIM DOE Defendants.

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26. At all times relevant herein, each of the individual Defendants acted under color

of law in the course and scope of their duties and functions as agents, employees, servants and/or

officers of the Defendants ECORSE and SWAT in engaging in the conduct described herein.

27. At all times relevant herein, the individual Defendants violated rights clearly

established under the Constitution of the United States, in particular under the Fourth and

Fourteenth Amendments, of which reasonable police officers and/or police supervisors acting

under their respective circumstances knew or should have known.

STATEMENT OF FACTS

28. On September 25, 2008, at approximately 9:30 p.m., Plaintiffs MICHAEL

PHELPS and TAMMY PHELPS were at their home, a free standing house, located at 19

Florence, River Rouge, Michigan.

29. The Plaintiffs’ home at 19 Florence had been rented and occupied by them for

more than five (5) years, along with Plaintiff TAMMY PHELPS’ two children/Plaintiff

MICHAEL PHELPS’ step children, Brandon Hoskins and Melissa Hoskins.

30. The Plaintiffs’ house at 19 Florence was clearly and plainly the fourth dwelling

west of West Jefferson and was located next door to the house located at 17 Florence, River

Rouge, Michigan.

31. The house located at 17 Florence was clearly and plainly the third dwelling west

of West Jefferson.

32. At the aforementioned time and place, based upon alleged information provided

by a “confidential informant” (“CI”) who claimed to have purchased illegal narcotics at 17

Florence, Defendants SASSAK and HERRING obtained a search warrant that allowed law

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enforcement officers lawful entry only at the dwelling located at 17 Florence, “the third dwelling

west of West Jefferson.” (emphasis added)

33. In obtaining the aforementioned warrant, the Defendants SASSAK and

HERRING stated under oath in the Affidavit and Request for Search Warrant that they had

actually observed the confidential informant both enter and leave 17 Florence Street, the third

dwelling from Jefferson, within the 48 hour period prior to September 25, 2008, and that he

entered while in possession of marked currency and without any illegal narcotics and exited

without the currency but in possession of illegal narcotics.

34. The statements that the Defendants HERRING and SASSSAK had actually seen

the confidential informant enter and exit from 17 Florence Street were false statements and were

made to obtain the warrant so to enter 17 Florence Street. This false statement was made

pursuant to a custom, policy and practice of the Defendant ECORSE.

35. On September 25, 2008, based on the aforementioned false statements, a search

warrant was issued.

36. Prior to the execution of said search warrant, Defendants HERRING and

SASSAK took affirmative steps to involve the Defendant DOWNRIVER MUTUAL AID, acting

through its SWAT team, in the raid on the house located at 17 Florence Street.

37. Prior to the execution of the search warrant intended and authorized for execution

at 17 Florence, agents of Defendants DOWNRIVER MUTUAL AID and ECORSE, including

but not limited to Defendants McINCHAK, HERRING, SASSAK, JOHN DOES and JIM

DOES, held a pre-raid briefing session in which it was agreed that, by description, the wrong

house, 19 Florence, would be entered by members of the SWAT team notwithstanding the fact

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that the officers had no warrant or permission to enter that location nor any reasonable basis on

which to do so.

38. Nor were any steps or measures taken to assure that all members of the SWAT

team entered the right house.

39. Further, at the briefing session the members of the SWAT team were give a false

identification of the house to be raided notwithstanding the fact defendants failed to review,

scrutinize, observe or, in any way consider the following:

a. Photographs of the location, neighborhood or area of the raid;

b. Maps of the location, neighborhood or area of the raid;

c. Diagrams of the location, neighborhood or area of the raid;

40. Notwithstanding the clear description and address of the house in the search

warrant, Defendant SASSAK, at all times acting as an Ecorse police officer and under color of

law, stated and instructed Defendant McINCHAK and other SWAT officers on the day of the

actual execution of the search warrant as follows:

a. That he had actually observed the confidential informant enter the rear door of

the building which is 19 Florence, the fourth dwelling west of Jefferson, the

Plaintiffs’ home; and

b. That this dwelling, 19 Florence, is the home that should be entered by SWAT

officers, pursuant to the Search warrant referenced above.

41. Defendant SASSAK intentionally, deliberately and falsely so stated and instructed

Defendant McINCHAK and other SWAT officers, despite the fact that he never observed the

confidential informant enter or leave from 19 Florence or indeed from any location whatsoever.

42. Subsequently and as a proximate result of their deliberate indifference, all

Defendants wrongly and unreasonably undertook, planned and executed a raid of the premises

located at 19 Florence, the fourth dwelling west of West Jefferson.

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43. At all times herein, Defendants ECORSE and COPELAND knew and/or were on

actual notice that Defendant SASSAK was likely to engage, as a police officer, in conduct likely

to lead to police actions by himself and other police officers that would, in all probability, result

in the violations of the constitutional rights of others.

44. At all times herein, Defendants ECORSE and COPELAND knew and/or were on

actual notice that Defendant SASSAK was likely to make statements that were dishonest, false,

inaccurate and, as a result, likely to lead to police actions by himself and other police officers

that would, in all probability, result in the violations of the constitutional rights of others.

45. Notwithstanding the aforementioned knowledge by Defendants ECORSE and

COPELAND, these Defendants failed to adequately supervise, train and/or discipline Defendant

SASSAK, to effectively prevent him from engaging in conduct or making statements that were

dishonest, false, inaccurate and, as a result, likely to lead to police actions by himself and other

police officers that would, in all probability, result in the violations of the constitutional rights of

others.

46. In the course of, and after becoming aware of the unlawful entry, as set forth

above, the individual Defendants, SASSAK, HERRING, McINCHAK, JOHN DOES, JIM

DOES and ROES, acting in concert, supervised, planned, witnessed, participated in and/or

engaged in the following excessive and unreasonable actions:

a. They burst into the Plaintiffs’ home without probable cause and without

permission or a valid warrant;

b. They raided the Plaintiffs’ home using large numbers of Defendant JIM DOE

police officers, police vehicles, bright lights and loud noise, all in ways that were

designed to publicly embarrass the Plaintiffs and were highly audible, visible and

public in the Plaintiffs’ neighborhood and amongst their neighbors;

c. They ordered the Plaintiffs to the floor, at gunpoint, forcefully grabbing Plaintiffs,

and throwing them to the floor;

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d. Even after realizing they were in the wrong house, they continued to hold

Plaintiffs prisoners in their own house, all the while pointing their guns at

Plaintiffs and their children;

e. They pushed the Plaintiff MICHAEL PHELPS’ face and head with the barrel of a

gun whenever he lifted his head off the ground;

f. They handcuffed the Plaintiff TAMMY PHELPS;

g. They searched the Plaintiffs’ home without probable cause or the permission or

consent of the Plaintiffs; and

h. They spoke loudly to the Plaintiffs and their family in rude and insulting terms.

47. Almost immediately after their unlawful entry into the Plaintiffs’ home, the

Defendants were aware of their error, i.e. that they had unreasonably raided and entered the

wrong house. Nonetheless, knowing full well the unlawfulness of their actions, they persisted in

the actions set forth above in Paragraphs 46, herein above, for an extended and excessive period

of time, long after they knew that they had entered the wrong house and had no right to be there.

48. During the entire period of time that the Defendants unlawfully occupied the

Plaintiffs’ home, the Plaintiffs were unlawfully and at gunpoint forced and coerced against their

will to stay in and therefore confined to two spaces within their house – on the floor and then on

the sofa with the intent of depriving them of their personal liberty or freedom of movement.

49. Further, while held at gunpoint, the Plaintiffs were not permitted to:

a. Enter or leave their home;

b. Move freely about within their home;

c. Speak freely to the occupying police officers; or

d. Ask questions of the police officers who were holding them and occupying their

house.

50. At all times herein the confinement of the Plaintiffs to their home and to specific

spaces within their own home was without any reasonable suspicion to so confine them, let alone

probable cause.

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51. At all times herein, the force and threat of force that was used by the individual

Defendants acting in concert, jointly and severally, as alleged herein above, to enter the

Plaintiffs’ home, hold them and their family at gunpoint, restrain them and falsely imprison them

in their own home, including the use of handcuffs on Plaintiff TAMMY PHELPS and to arrest

them during the period that they were detained was unnecessary, excessive and unreasonable.

52. The individual Defendant’s acts and omissions described above, all while acting

under color of law and pursuant to customs, policies and/or practices of Defendant CITY OF

ECORSE, through its Police Department, and Defendant DOWNRIVER MUTUAL AID through

its SWAT team, were unreasonable, excessive and performed in violation of Plaintiffs’ rights,

secured by the Fourth and Fourteenth Amendments to the United States Constitution.

53. As a direct and proximate result of the acts and conduct of the Defendants

complained of herein, Plaintiffs have sustained the following injuries and damages, among

others:

a. Emotional and psychological injury, including but not limited to post traumatic

stress disorder, anxiety and depression, resulting in greatly increased marital

tension;

b. The need to take medications such as Xanax and Zoloft and to be subjected to the

side effects thereof;

c. Accompanying physical symptoms, including but not limited to, sleep disturbance,

headaches and extreme nervousness;

d. Pain, suffering, mental anguish, public and private humiliation, embarrassment and

emotional distress, past and future;

e. Deprivation of liberty and property; and

f. Medical and pharmaceutical expenses, past and future.

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CLAIMS

FIRST CLAIM FOR RELIEF

42 U.S.C. § 1983 – FOURTH AMENDMENT

UNLAWFUL ENTRY, SEARCH AND SEIZURE

54. Plaintiff incorporates by reference the allegations set forth in Paragraphs 1

through 53, as if fully set forth herein.

55. The Defendants’ acts and conduct described above, as set forth in detail at

Paragraphs 28-46, all under color of law and pursuant to the customs, policies and practices of

Defendants SWAT and ECORSE, did violate the Plaintiffs’ rights to be free from unlawful and

unreasonable entry onto and into their premises as well as to be free from unreasonable,

excessive and unlawful searches and seizures, as secured by the Fourth and Fourteenth

Amendments to the United States Constitution.

56. This aforementioned unreasonable entry onto their premises and the unreasonable,

excessive and unlawful search and seizure occurred pursuant to and under the direct supervision

of Defendant HERRING and Defendant McINCHAK.

57. As a direct and proximate result of the acts and conduct of the Defendants

complained of herein, Plaintiffs have sustained the following injuries and damages, among

others:

a. Physical injury, loss of liberty;

b. Emotional and psychological injury, including but not limited to anxiety and

depression, resulting in greatly increased marital tension;

c. The need to take medications such as Xanax and Zoloft and to be subjected to the

side effects thereof;

d. Accompanying physical symptoms, including but not limited to, sleep

disturbance, headaches and extreme nervousness;

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e. Pain, suffering, mental anguish, public and private humiliation, embarrassment

and emotional and psychological distress, past and future; and

f. Medical and pharmaceutical expenses, past and future.

SECOND CLAIM FOR RELIEF

42 U.S.C. § 1983 – FOURTH AMENDMENT

FALSE ARREST/FALSE IMPRISONMENT

58. Plaintiff incorporates by reference the allegations set forth in Paragraphs 1

through 57, as if fully set forth herein.

59. At all times herein, Defendants confined and/or caused the confinement of the

Plaintiffs, through coercion, involuntarily and against their will, to two areas of their home –

first, on the floor and then, later, on the sofa. As a part of this coercion, Defendants forced

them, or caused them to be forced, to remain at gunpoint and, in the case of Plaintiff TAMMY

PHELPS, to be handcuffed.

60. Once Plaintiffs were falsely arrested, Defendants intentionally falsely imprisoned

them, thereby depriving them, against their will and without lawful authority, of their personal

liberty and freedom of movement, using actual physical force and the threat of force.

61. The Defendants’ acts and conduct described above did violate the Plaintiff’s right

to be free from unreasonable, excessive and unlawful seizures, as secured by the Fourth and

Fourteenth Amendments to the United States Constitution. The false arrest, false imprisonment

and other forms of unreasonable seizure of the Plaintiffs were undertaken by the Defendants in

the absence of probable cause so to do.

62. This aforementioned unlawful arrest and imprisonment occurred pursuant to and

under the direct supervision of Defendants HERRING and McINCHAK.

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63. As a direct and proximate result of the acts and conduct of the Defendants

complained of herein, Plaintiffs have sustained the following injuries and damages, among

others:

a. Physical injury, loss of liberty;

b. Deprivation of liberty and property;

c. Emotional and psychological injury, including but not limited to anxiety and

depression, resulting in greatly increased marital tension;

d. The need to take medications such as Xanax and Zoloft and to be subjected to the

side effects thereof;

e. Accompanying physical symptoms, including but not limited to, sleep

disturbance, headaches and extreme nervousness;

f. Pain, suffering, mental anguish, public and private humiliation, embarrassment

and emotional distress, past and future; and

g. Medical and pharmaceutical expenses, past and future.

THIRD CLAIM FOR RELIEF

42 U.S.C. § 1983 – EXCESSIVE FORCE

64. Plaintiff incorporates by reference the allegations set forth in Paragraphs1through

63, as if fully set forth herein.

65. The individual Defendants’ acts and conduct, as fully described above --including

but not limited to the pointing of guns at Plaintiffs and their family, the grabbing of Plaintiff

TAMMY PHELPS and forcing her onto the floor and the pushing of the Plaintiff MICHAEL

PHELPS in the head and face with a gun barrel -- further violated Plaintiffs’ rights to be free

from unreasonable and excessive physical force and seizure as secured by the Fourth and

Fourteenth Amendments to the United States Constitution.

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66. This aforementioned unreasonable and excessive physical force and seizure was

imposed by Defendants acting under color of state law and pursuant to the customs, policies and

practices of Defendants ECORSE and DOWNRIVER MUTUAL AID.

67. This aforementioned unreasonable and excessive use of force occurred pursuant

to and under the direct supervision of Defendants HERRING and McINCHAK.

68. As a direct and proximate result of the acts and conduct of the Defendants

complained of herein, Plaintiffs have sustained the following injuries and damages, among

others:

a. Physical injury, loss of liberty;

b. Deprivation of liberty and property;

c. Emotional and psychological injury, including but not limited to anxiety and

depression, resulting in greatly increased marital tension;

d. The need to take medications such as Xanax and Zoloft and to be subjected to the

side effects thereof;

e. Accompanying physical symptoms, including but not limited to, sleep

disturbance, headaches and extreme nervousness;

f. Pain, suffering, mental anguish, public and private humiliation, embarrassment

and emotional distress, past and future; and

g. Medical and pharmaceutical expenses, past and future.

FOURTH CLAIM FOR RELIEF

42 U.S.C. § 1983 –MONELL CLAIM

AS TO DEFENDANTS ECORSE AND SWAT

69. Plaintiff incorporates by reference the allegations set forth in Paragraphs 1

through 68, as if fully set forth herein.

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70. At all times herein the Defendant ECORSE established, promulgated,

implemented and maintained customs, policies and/or practices with regard to the Ecorse Police

Department.

71. At all times herein the Defendant DOWNRIVER MUTUAL AID established,

promulgated, implemented and maintained customs, policies and/or practices with regard to the

practices and policies of its SWAT team.

72. At all times herein Defendants COPELAND, ECORSE and DOWNRIVER

MUTUAL AID established, promulgated, implemented and maintained the following customs,

policies and/or practices:

a. Inadequately training, supervising and/or disciplining those police officers and

supervisors Defendants knew, or about whom were on actual notice, who used or

had been known to use excessive and unreasonable practices with regard to the

execution of search warrants;

b. Inadequately training, supervising and/or disciplining those police officers and

supervisors Defendants knew, or about whom were on actual notice, who used or

had been known to undertake and engage in unlawful, unreasonable and excessive

seizures, entries and searches into and onto the premises of others;

c. Inadequately training, supervising and/or disciplining its police officers and

supervisors with regard to the circumstances and procedures under which to

undertake seizures, entries, arrests and searches into and onto the premises of

others;

d. Inadequately training, supervising and/or disciplining its police officers and

supervisors with regard to the circumstances and procedures under which to

employ physical force such as the drawing and pointing of firearms, the forcing of

persons to the ground and the pushing of persons with the barrels of firearms;

e. Inadequately training, supervising and/or disciplining its police officers and

supervisors with regard to the circumstances and procedures under which to

involuntarily and coercively confine and thereby falsely arrest and imprison

persons whom they know or should know to have done nothing wrong and, in

fact, to be the victims of an unlawful entry and search;

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f. Inadequate pre-raid briefing as a means of providing adequate supervision,

training and discipline, as evidenced by the facts alleged in Paragraphs 37, 38 and

39 herein above.

73. At all times herein Defendants COPELAND and ECORSE, in addition,

established, promulgated, implemented and maintained the following customs, policies and/or

practices:

a. Hired, trained, promoted and retained Defendant SASSAK as an Ecorse police

officer notwithstanding that they knew or should have known that he was

deliberately indifferent to the rights of others, in particular those of the Plaintiffs

herein, as secured by the Fourth and Fourteenth Amendments, as evidenced by the

following:

i. When questioned by other officers, including Ecorse officers as to why he

had identified the wrong house for entry by the SWAT team for entry,

SASSAK responded, “F*** it, it’s not my money, it’s the City’s money.”

ii. Notwithstanding this statement, there was no corrective action taken by the

Defendant ECORSE. Rather, the statement by Defendant SASSAK, in effect

that it was of no importance that the Fourth Amendment Constitutional rights

had been violated by police officers, was adopted, accepted and ratified as

policy by Defendant Ecorse.

b. Failed to supervise, discipline and train Defendants SASSAK and HERRING and

other Ecorse police officers, notwithstanding that they knew or should have

known that SASSAK and others were deliberately indifferent to the rights of

others, in particular those of the Plaintiffs herein, as secured by the Fourth and

Fourteenth Amendments and notwithstanding its knowledge of the events set

forth in Paragraph 73(a) above.

74. At all times herein, Defendant COPELAND affirmatively condoned and ratified

the unconstitutional conduct of Ecorse Police Officers, including but not limited to Defendant

SASSAK, by instructing his supervisory officer, Defendant HERRING, not to document either

the entry into the wrong house or the improper conduct by Defendant SASSAK which resulted in

the violation of Plaintiffs’ constitutional rights, to wit:

a. When Defendant COPELAND was told that there had been a wrongful entry into the

Plaintiffs’ home and was asked by Defendant HERRING whether a report should be

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written regarding that incident, he refused to instruct HERRING to do so, in an

attempt to cover this matter up;

b. When Defendant COPELAND was told that what Defendant SASSAK had said

when questioned about the wrongful entry into the Plaintiffs’ home, i.e. “F*** it,

it’s not my money, it’s the City’s money” and then was asked by Defendant

HERRING whether a report should be written regarding that statement, as a matter

of policy of the Ecorse Police Department, he refused to instruct HERRING to do so

in an attempt to cover this matter up, rather than to appropriately supervise, train and

discipline SASSAK and other Ecorse officers; and

c. Defendant COPELAND deliberately refused to instruct, supervise and, particularly,

discipline SASSAK, and other Ecorse police officers as a matter of explicit policy of

the Ecorse Police Department, refused to do so in an attempt to cover up this

incident and, as a matter of the explicit policy of the Defendant ECORSE, to

generally cover up misconduct by Ecorse police officers.

75. Further, at all times herein Defendants COPELAND and ECORSE established,

promulgated, implemented and maintained the following customs, policies and/or practices:

a. Inadequately training, supervising and/or disciplining its police officers with regard

to the proper methods and procedures for conducting a “controlled buy” in

preparation for obtaining a search warrant; and

b. Inadequately training, supervising and/or disciplining those police officers with

regard to making critical statements in warrant applications and affidavits that were a

part of the warrant application, they knew or should have known were false, as a

way to obtain search warrants.

76. Each of the policies aforementioned in Paragraphs 66, 72, 73 and 75 above herein

was instrumental and a driving force in the violations of rights sustained by MICHAEL PHELPS

and TAMMY PHELPS, as set forth herein.

77. Each of the aforementioned policies of inadequate training, supervision and

discipline of the individual Defendants and others was known to the Defendants ECORSE and

SWAT as highly likely and probable to cause violations of constitutional rights of members of

the public in general and the Plaintiffs herein in particular.

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78. As a direct and proximate result of the acts and conduct of the Defendants

complained of herein, Plaintiffs have sustained the following injuries and damages, among

others:

a. Physical injury, loss of liberty;

b. Deprivation of liberty and property;

c. Emotional and psychological injury, including but not limited to anxiety and

depression, resulting in greatly increased marital tension;

d. The need to take medications such as Xanax and Zoloft and to be subjected to the

side effects thereof;

e. Accompanying physical symptoms, including but not limited to, sleep

disturbance, headaches and extreme nervousness;

f. Pain, suffering, mental anguish, public and private humiliation, embarrassment

and emotional distress, past and future; and

g. Medical and pharmaceutical expenses, past and future.

RELIEF REQUESTED

WHEREFORE, Plaintiffs demand the following relief jointly and severally against all

Defendants:

(a) A declaration that Defendants violated the federal rights of Plaintiffs;

(b) Compensatory damages for the physical, emotional, and economic injuries suffered by

Plaintiffs by reason of defendants’ unlawful and unjustified conduct, in an amount fair, just and

reasonable and in conformity with the evidence at trial;

(c) Punitive and exemplary damages as to the individual defendants to the extent allowable

by law;

(d) Attorneys fees and costs as allowed, pursuant to 42 U.S.C. §1988; and

(e) Such other and further relief as appears just and proper.

Case 2:09-cv-12311-NGE-MAR Document 41 Filed 04/28/10 Page 20 of 21
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Respectfully submitted,

GOODMAN & HURWITZ, P.C.

/s/ William H. Goodman_____

William H. Goodman (P14173)

/s/ Julie H. Hurwitz______

Julie H. Hurwitz (P34720)

/s/ Kathryn Bruner James______

Kathryn Bruner James (P71374)

1394 East Jefferson Ave,

Detroit, Michigan 48207

(313) 567-6170

Attorneys for the Plaintiff

Dated: April 28, 2010

CERTIFICATE OF SERVICE

I hereby certify that on April 28, 2010, I electronically filed the foregoing Plaintiffs’

Corrected First Amended Complaint with the Clerk of the Court using the ECF system, which

will send notification of such filing to all attorneys of record.

s/William H. Goodman_______

Goodman & Hurwitz, P.C.

Attorneys for Plaintiffs

1394 E. Jefferson Ave.

Detroit, MI 48207

(313) 567-6170

bgoodman@goodmanhurwitz.com

(P14173)

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