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### STATE OF MICHIGAN

COURT OF APPEALS

KEYON HARRISON,

Plaintiff-Appellant, and

THE AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN,

Amicus Curiae, UNPUBLISHED May 23, 2017

v No. 330537 Kent Circuit Court CURT VANDERKOOI and CITY OF GRAND RAPIDS, LC No. 14-002166-NO

Defendants-Appellees.

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

P ER C URIAM

.
Plaintiff appeals by right the trial court’s order denying his motion for partial summary disposition, granting summary disposition in favor of defendantCaptain Curt VanderKooi of the Grand Rapids Police Department (GRPD) under MCR 2.116(C)(7), (C )(10), and (I)(2), and granting summary disposition in favor of defendant City of Gran d Rapids (the city) under MCR 2.116(C)(10). Plaintiff also appeals the trial court’s ord er granting defendants’ motion to strike plaintiff’s expert. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case presents many of the same issues as Johnson v VanderKooi , ___ Mich App ___; ___ NW2d ___ (2017); in fact, the cases were consolidated in the trial court for purposes of discovery. Like Johnson , this case involves the application of GRPD’s “photograph and print” (P&P) procedure during a field interrogation of a minor who lac ked official ide ntification. In both cases, the minor was not charged with a crime. We describ e the procedure at issue in more depth in Johnson

. Id

. at __.

In this case, VanderKooi made contact with plaintiff after obs erving him walk up to another young man and hand him what appeared to be a large “mod el type engine to a train.” The young man then rode off on his bicycle carrying the object that plaintiff had handed to him.-2- VanderKooi testified that he dec ided to continue his observatio n because the exchange “looked like some kind of transaction between the two.” VanderKooi, wh o was in an unmarked police car, followed plaintiff and observed him enter a park. VanderK ooi testified that plaintiff’s behavior in the park seemed “suspicious,” because plaintiff wen t into a secluded area of the park, crouched down and began moving his arms.

VanderKooi put out a radio broadcast for an officer to come to the scene and for another officer to find the individual on the bicycle. VanderKooi park ed his vehicle, approached plaintiff in the park, identified himself, and asked plaintiff what he wa s doing. VanderKooi testified that he believed plaintiff said that he was trying to catch birds. VanderKooi further testified that he asked plaintiff what he had been doing across the street, and p laintiff told him that he was walking home from school and thatthe object plaintiff had beencarrying, which he described as the engine of a train, was for a school project. Plaintiff tol d VanderKooi that he had given the object to a friend who was going to return it to another person . According to VanderKooi, there had been a number of larcenies and home invasions in that area, especially after school, and he was suspicious that plaintiff’s story was not truthful. Vander Kooi admitted that, if true, plaintiff’s story did not rev eal any illegal conduct.

When asked why he did not believe plaintiff, VanderKooi testif ied as follows:

Well, because his behavior in the park when I first saw him it just, to me, looked like he could, he was acting rather unusual and I was su specting might be a lookout and that the property was, a lot of times when you ge t stolen property they’ll secrete it at different locations near where they have taken it, and they take things, object by object they take it and deliver it somewhere else. So, that was what was going through my mind when I saw this transaction, and more so I was confirming what was going on looking suspicious the way he was in the park in the woods, wooded area and he was actually kneeling or crouchin g.

VanderKooi testified that plaintiff was carrying a knapsack, an d that he asked for consent to look inside the knapsack. Plaintiff gave consent, so VanderKooi ask ed him to open up the knapsack. Plaintiff opened it up, and VanderKooi looked inside, where he observed school materials. Plaintiff was not carrying official identification.

At some point after VanderKooi made contact with plaintiff, Of ficer Luke Nagtzaam and Sergeant Stephen Labrecque of the GRPD arrived at the scene. V anderKooi testified that he asked one of the officers to take a picture of plaintiff and th at he did not ask for plaintiff’s fingerprints to be taken. However, VanderKooi testified that h e later learned, after this lawsuit was initiated, that a print was also taken.

Nagtzaam testified that plaintiff consented to a search of his person, and that Labrecque at some point obtained a P&P from plaintiff. Nagtzaam describe d the contact between plaintiff and Captain VanderKooi as “low k ey and non-confrontational.” L abrecque testified that he remembered hearing a request for a P&P over the dispatch system , but that he could not remember who had made the reque st. Labrecque took plaintiff’s picture with a digital camera and obtained plaintiff’s thumbprin t using a GRPD-issued thumbpr int card and inkpad.-3- Labrecque testified that the P&P was quick and would not have t aken more than two minutes. Labrecque was not involved withthe investigation beyond performing and logging the P&P.

At some point during these events, GRPD Officer Dennis Newton made contact with the individual on the bicycle, who consented to a search, provided identification, and was eventually released. Newton testified that someone from plaintiff’s scene reported over the radio that the two boys’ stories about the object had matched. Newton informe d someone at plaintiff’s scene that the individual on the bicycle no longer possessed the obje ct that VanderKooi had seen. VanderKooi testified that, once he learned that the other indiv idual did not have the object, he let plaintiff walk away because th e situation did not rise to the l evel of probable cause.

According to VanderKooi, plainti ff was free to leave during th e encounter and could have left without having his picture taken. VanderKooi testified th at he recalled asking plaintiff if it was “okay if we take a picture, and he said yes.” He testified that no officer would have taken plaintiff’s picture if he had sa id “no.” VanderKooi further te stified that he did not run plaintiff’s thumbprint through the Automated Fingerprint Identification Sys tem (AFIS) and had no personal knowledge of any other officer doing so.

Plaintiff testified that he consented to the search of his per son and bag. He testified that VanderKooi told him that he needed to take his picture to ident ify who he was. Plaintiff further testified that he said “okay” in a nervous and shaky voice. Pl aintiff described the officers’ demeanors during the stop as cal m. Plaintiff also testified th at he asked why his fingerprint needed to be taken, and that VanderKooi told him it was “just t o clarify again to make sure you are who you say you are.” Plain tiff testified that he responde d “okay.” Plaintiff’s thumbprint was then taken. Plaintiff testified that VanderKooi told him t hat he was “good to go” and that plaintiff shook the officers’ hands before going home. He test ified that he was “freaked out” by the incident and that his mother drove him to and from school f or the next two weeks because he was too scared to walk to school after the incident. Plaintiff was 16 years old at the time of the incident.

In March 2014, plaintiff filed suit, 1 alleging claims against VanderKooi under 42 USC § 1981, 42 USC § 1983, and 42 USC § 198 8. The complaint allege d that, without probable cause or lawful consent, VanderKooi had directed an officer to search, photograph, and thumbprint plaintiff. The complaint further alleged that Vande rKooi had taken these actions because plaintiff was African American; that there was no legal justification for the stop, detention, search, photograph, or t humbprint; and that VanderKo oi’s actions—individually or by direction to other officers—were unreasonable. The complaint a lleged that VanderKooi violated plaintiff’s right to equal prot ection and to equal rights under 42 USC § 1981, as well as plaintiff’s Fourth Amendment rights and his constitutional righ t to privacy. The complaint requested damages, the destruction of the photograph and thumbp rint, fees and costs, and any other relief deemed appropriate. Plaintiff later amended his c omplaint to allege that the P&P

1 The suit was originally brought by plaintiff’s next friend, An chanet Harrison (his mother), but was eventually amended to name pl aintiff, individually, as the named plaintiff.-4- constituted a taking in violation of his Fifth Amendment rights and to add a claim for municipal liability under 42 USC § 1983.

By stipulated order, plainti ff’s case was consolidated with Johnson for purposes of discovery only. In 2015, plaintiff moved for partial summary d isposition on his Fourth and Fifth Amendment claims, and on his equal protection claim against Van derKooi and his municipal liability claim against the city insofar as they related to the P&P procedure.

Both defendants moved for summary disposition. VanderKooi arg ued that plaintiff’s constitutional rights were not v iolated and that he was protect ed by qualified immunity regarding plaintiff’s Fourth and Fifth Amendment claims because the law r egarding photographing and fingerprinting during an investig atory stop was not clearly est ablished. VanderKooi further argued that he had reasonable sus picion to stop plaintiff, or i n the alternative that the contact was a consensual encounter. VanderKooi argued that there was no co nstitutional right to privacy applicable to this situation, that plaintiff could not show pur poseful racial discrimination, and that no taking had occurred. The city argued that plaintiff co uld not establish a violation of his constitutional rights or that th e city was the moving force beh ind any violation.

Defendants later moved to strike plaintiff’s proposed expert w itness, Dr. William Terrill, a professor of criminal justice at Michigan State University.

Following a motion hearing (which was combined with the motion hearing in Johnson ), trial court issued two separate written opinions and orders reg arding the motion to strike Dr. Terrill and the motions for summa ry disposition. With respect to the motion to strike, the trial court held that the proposed t estimony was inadmissible under M RE 702 and MRE 403. With regard to VanderKooi’s motion for summary disposition, the tria l court held that the length of the stop was reasonable and not exces sive and that plaintiff had fa iled to establish a genuine issue of material fact. The trial court further held that plaintiff had consented to the P&P. The trial court determined that no Fifth Amendment taking had occurred and that no constitutional right to privacy apart from that provided by the Fourth Amendment was im plicated. The trial court also held that VanderKooi was protected by qualified immunity regard ing plaintiff’s Fourth and Fifth Amendment claims as related to the P&P procedure. With respect to the § 1981 and equal protection claims, the trial court held that plaintiff had fail ed to provide evidence of a discriminatory purpose. Accordingly, the trial court granted s ummary disposition in favor of VanderKooi under MCR 2.116(C)(10) , (C)(7), and (I)(2). Finally , the trial court addressed the city’s motion for summary dispos ition and held that plaintiff h ad failed to establish a violation of his constitutional rights; conse quently, summary disposition infavor of the citywas proper under MCR 2.116(C)(10).

This appeal followed.

II. CAPTAIN VANDERKOOI

Plaintiff argues that the trial court erred by failing to gran t partial summary disposition in his favor on his claims against VanderKooi relative to the orde ring of the P&P, and erred by granting summary disposition in favor of VanderKooi on all of the claims against him. We disagree.-5- A. STANDARD OF REVIEW

We review de novo a tr ial court’s grant of summary disposition . See Innovation Ventures v Liquid Mfg , 499 Mich 491, 506; 885 NW2d 861 (2016); see also Fisher Sand & Gravel Co v Neal A Sweebe, Inc , 494 Mich 543, 553; 837 NW2d 244 (2013). The trial court deni ed plaintiff’s motion for partial summary disposition under MCR 2. 116(C)(10) and granted summary disposition to Captain VanderKooi under MCR 2.116 (C)(7 ), (C)(10), and (I)(2); therefore, the following standards apply: “A motion for summary disposition under MCR 2.116(C)(7) asserts that a cla im is barred by immunity gran ted by law” and “may be supported or opposed by affidav its, depositions, admissions, orother documentary evidence; the substance or content of the supporting proofs must be admissibl e in evidence.” By Lo Oil Co v Dep’t of Treasury , 267 Mich App 19, 26; 703 NW2d 822 (2005) (explaining that the complaint’s allegations “are accepted as true unless contradicted by docume ntary submissions”). “A trial court properly grants a motion for summary disposition under MC R 2.116(C)(7) when the undisputed facts establish that the moving party is entitled to immunity granted by law.”

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

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

“Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly viol ated the right has no qualifi ed immunity from suit, presents a question of law,” which is reviewed de novo on appeal. Elder v Holloway , 510 US 510, 516; 114 S Ct 1019, 1023; 127 L Ed 2d 344 (1994). See also Morden v Grand Traverse Co , 275 Mich App 325, 340; 738 NW2d 278 (2007). Finally, the applicati on of constitutional provisions is a question of law that this Court reviews de novo. Hardrick v Auto Club Ins Ass’n , 294 Mich App 651, 685; 819 NW2d 28 (2011), lv den 493 Mich 867 (2012).

B. FOURTH AND FIFTH AMENDMEN T CLAIMS RELATED TO THE P&P

With respect to the Fourth and Fifth Amendment claims arising from the P&P procedure, and for the reasons set forth in Johnson , ___ Mich App at ___, we hold that VanderKooi was protected by qualified immunity. Consequently, the trial court did not err by denying summary disposition to plaintiff or by gr anting summary disposition in favor of VanderKooi under MCR 2.116(C)(7).-6- C. REMAINING FOURTH AMENDMENT CLAIMS

The trial court also did not err by holding that VanderKooi ha d not violated plaintiff’s Fourth Amendment rights by maki ng contact with plaintiff or per forming a search of his bag.

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

“The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides 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.’ ” Maryland v King , ___ US ___, ___; 133 S Ct 1958, 1968; 186 L Ed 2d 1 (2013), quoting US Const, Am IV. “A ‘seizure’ within the meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave.” People v Jenkins , 472 Mich 26, 32; 691 NW2d 759 (2005). However, “[p]olice officers may make a va lid investigatory stop if they possess ‘reasonable suspicion’ tha t crime is afoot” without a w arrant. People v Champion , 452 Mich 92, 98; 549 NW2d 849 (1996), citing Terry v Ohio , 392 US 1, 20; 88 S Ct 1868, 1879; 20 L Ed 2d 889 (1968). Additionally, a search conducted pursuant to consent is an exception to the warrant requirement. People v Borchard-Ruhland , 460 Mich 278, 294; 597 NW2d 1 (1999). The consent exception to the warrant requirement allows a searc h and seizure when consent is unequivocal, specific, and freely and intelligently given.” Lavigne v Forshee , 307 Mich App 530, 538; 861 NW2d 635 (2014) (quotat ion marks and citation omi tted). Consent can “be given in the form of words, gesture, or conduct,” but “cannot be esta blished by showing no more than acquiescence to a claim of lawful authority.” Id . at 540 (quotation marks and citation omitted). The voluntariness of consent is determined by analyzing the tot ality of the circumstances, and consent may be voluntary even if the defendant does not know th at he has a right to refuse consent; “knowledge of the right to refuse consent is one facto r to be taken into account, [but] the government need not establish such knowledge as the sine qua non of an effective consent.”
Ohio v Robinette , 519 US 33, 39; 117 S Ct 417, 421; 136 L Ed 2d 347 (1996) (quo tation marks and citation omitted). See also Borchard-Ruhland , 460 Mich at 294 (explaining “that the people need not prove that the person gi ving consent knew of the right to withhold consent”).

In this case, the initial cont act between plaintiff and Vander Kooi was consensual. Plaintiff testified that VanderK ooi identified himself and aske d to speak with him, and plaintiff said “sure.” With respect to the search of his bag, the record also reflects that VanderKooi asked plaintiff for permission to look in the bag, and that plaintiff said “yes.” Plaintiff’s consent was thus unequivocal, specific, and freely given. Forshee , 307 Mich App 530, 538.-7- Plaintiff argues, however, that the length of his detention wa s unreasonable. The trial court found both that p laintiff consented to the initial contac t and never attempte d to leave during the encounter and that, if the contact was a stop, it was based on a reasonable suspicion on VanderKooi’s part and was not of excessive duration. Indeed, p laintiff testified that, following the stop, and after VanderKooi heard his explanation, VanderKoo i told him to “hold on” and then called for additional officers. Plaintiff, a minor, was t old to wait by an adult police officer who summoned more officers to assist him. At the least, theref ore, there was a genuine issue of material fact regarding whether plaintiff was seized at that po int. Jenkins , 472 Mich at 32 (explaining that “[a] ‘seizure’ within the meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a reasonable person would have b elieved that he was not free to leave”).

However, we agree that the stop was based on a reasonable susp icion and that the detention was not of an excessi ve duration. As our Supreme Cou rt has explained, law enforcement officers are able to “approach and temporarily deta in a person for the purpose of investigating possible criminal behavior even though there is n o probable cause to support an arrest,” and the “brief detenti on does not violate the Fourth A mendment if the officer has a reasonably articulable suspicion that criminal activity is afoo t.” Id . at 32. Reasonable suspicion is analyzed on a case-by-case basis and takes into account the totality of the circumstances. Id

. “A determination regarding whethe r a reasonable suspicion exist s must be based on commonsense judgments and inferences about human behavior.” Id . (quotation marks and citation omitted). Officers are able “to draw on their own exp erience and specialized training to make inferences from and deductions about the cumulative inform ation available to them that might well elude an untrained person.” United States v Arvizu , 534 US 266, 273; 122 S Ct 744, 750-751; 151 L Ed 2d 740 (2002). Ultimately, officers must hav e more than a mere hunch, but reasonable suspicion is a lower standard than probable cause an d is much lower than a preponderance of the evidence. See id . at 274 (“Although an officer’s reliance on a mere hunch is insufficient to justify a st op, the likelihood of criminal a ctivity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard”) (quotation marks and citation omitted). Wi th regard to the length of the detention, a court must examine “ whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v Sharpe , 470 US 675, 686; 105 S Ct 1568, 1575; 84 L Ed 2d 605 (1985).

VanderKooi testified that he observed behavior between plainti ff and another individual that at least raised the question of whether a transfer of stol en property had occurred. VanderKooi explained that stolen property was often taken piece by piece and then delivered somewhere else, and he indicated that the transaction he had ob served was consistent with moving stolen property, which led to the following thought goin g through his mind: “You got a person that’s walking and now he gets it to the person on the b ike, and the guy on the bike can get away quicker and bring it to somewhere else.” VanderKooi f urther explained that, when he observed plaintiff kneeling or crouching in a patch of small tr ees and grass, he suspected that plaintiff was acting as a lookout . In addition, VanderKooi tes tified that he had worked for GRPD since 1980 and that he was very familiar with Grand Rapids and its crime patterns. VanderKooi asserted that there were a lot of larcenies and home invasions in the area of the-8- incident, especially after sc hool, and that home invasions and larcenies were higher the closer one got to the core of the city. VanderKooi explained that mos t home invasions occurred during the daytime when people were not home and that, during his 36 y ears as a police officer in the city, he recognized the area where the incident occurred as one where there were more home invasions than other areas.

Although these facts do not rise to the level of probable caus e, and individually may be insufficient to support a reasonab le suspicion, when the totali ty of the circumstances is examined, we conclude that the trial court did not err by holdi ng that VanderKooi possessed a reasonable suspicion sufficient to instigate a brief investigat ory stop. See Arvizu , 534 US at 274 (explaining the holding in Terry in the following manner: “Although each of the series of acts was perhaps innocent in itself, w e held that, taken together, t hey warranted further investigation.”) (quotation marks and citation omitted); Jenkins , 472 Mich at 32. Plaintiff’s reliance on People v Shabaz , 424 Mich 42; 378 NW2d 451 (1985) is misplaced. Shabaz involved a defendant who was merely carrying a bag with indeterminate contents and who fled when he saw a police car. Our Supreme Court stated that flight “might reasonably have heightened the officer’s gen eral suspicion . . . . But heighte ned general suspicion occasioned by the flight of a surveillance subject does not alone supply the particularized, reasoned, articulable basis to conclude that criminal activity was afoot that is requ ired to justify the temporary seizure approved in Terry .” Id . at 62-63.

In this case, by contrast, VanderKooi was able to articulate aparticular and reasoned basis for his decision to conduct an investigatory stop: to det ermine whether plaintiff was involved in the transportation of items stolen during a home in vasion or was acting as a lookout. The fact that the circumstances of the incident did not rise to the level of probable cause (a fact that VanderKooi acknowledged) or that VanderKooi’s suspicion wa s ultimately proven to be false, does not negate the reasonableness of his suspicion. Illinois v Wardlow , 528 US 119, 126; 120 S Ct 673, 677; 145 L Ed 2d 570 (2000) (explaining that, in allowing investigatory detentions, “ Terry accepts the risk that offi cers may stop innocent people”).

With regard to the length of the detention, plaintiff argues t hat the trial court erred by concluding that the entire encounter lasted approximately 10 to 15 minutes, and argues that the police report demonstrates that the encounter lasted 55 minutes . However, the police report does not indicate that the encounter l asted 55 minutes. The police report has two boxes: one for the time of the incident and one for the report date and time. The time for the incident is listed as 15:08. The report time is 16:03. The time of the report is no t indicative of when the encounter concluded and does not contradict the evidence, in the form of VanderKooi’s answer to plaintiff’s interrogatories , that it lasted 10 to 15 minutes.

Further, regardless of the precise length of time, the evidenc e shows that GRPD officers “diligently pursued a means of i nvestigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defen dant.” Sharpe , 470 US at 686. VanderKooi sought to ascertain plaintiff’s identity and the ori gin of the object that he believed may have been stolen. Officers c ontacted the other individual involved, and the two stories were compared, after which VanderKooi recognized that he lacked prob able cause for an arrest and plaintiff was released. The trial court did not err by grantin g summary disposition in favor of VanderKooi on the ground that no Four th Amendment violations oc curred.-9- D. EQUAL PROTECTION AND 42 USC § 1981 CLAIMS

Plaintiff also argues that the trial court erred by failing to determine that the P&P procedure violated his FourteenthAmendment right to equal prot ection or the requirement under § 1981 that he be afforded equal rights. We disagree.

42 USC § 1981 provides as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and pro ceedings for the security of persons and property as is enjoyed by white citizen s, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contra cts” includes the making, performance, modification, and termination of contracts , and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impa irment by nongovernmental discrimination and impairment under color of St ate law.

The language of § 1981 “establishes four protected interests: (1) the right to make and enforce contracts; (2) the right to sue, be parties, and give e vidence; (3) the right to the full and equal benefit of the laws; and ( 4) the right to be subjected to like pains and punishments.” Phelps v Wichita Eagle-Beacon , 886 F2d 1262, 1267 (CA 10, 1989). A plaintiff must establish three requirements for a § 1981 claim: “(1) he or she is a memb er of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute . . . . ” Bellows v Amoco Oil Co , 118 F3d 268, 274 (CA 5, 1997).

The United States Supreme Court has stated that “purposeful di scrimination that violates the Equal Protection Clause of the Fourteenth Amendment will al so violate § 1981.” Gratz v Bollinger , 539 US 244, 276 n 23; 123 S Ct 2411, 2431; 156 L Ed 2d 257 (2 003). See also Grutter v Bollinger , 539 US 306, 343 ; 123 S Ct 2325, 2347; 156 L Ed 2d 304 (2003), superseded on other grounds by Const 1963, art 1, § 26 as stated in Harrington v Scribner , 785 F3d 1299, 1308 (CA 9, 2015) (explaining that “the prohibition against dis crimination in § 1981 is coextensive with the Equal Protection Clause”). As plaintiff’s c laim under the Fourteenth Amendment is premised on purposeful discrimination, his claims under § 1981 and § 1983 claims are overlapping.-10- The Equal Protection Clause of the Fourteenth Amendment is ess entially a direction that all persons similarly situated should be treated alike,” Lawrence v Texas , 539 US 558, 579; 123 S Ct 2472, 2484; 156 L Ed 2d 508 (2003), and it provides that n o State shall “deny to any person within its jurisdiction the equal protection of the laws,” US C onst, Am XIV. “Racially selective law enforcement violates this nation’s constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and black persons was one of the central evils addressed by the framers of the Fourteenth Amendment.” Marshall v Columbia Lea Regional Hosp , 345 F3d 1157, 1167 (CA 10, 2003). Even consensual searches a nd seizures “may violate the Equal Protection Clause when they are initiate d solely based on racial considerations.” United States v Travis , 62 F3d 170, 173 (CA 6, 1995), cert den 516 US 1060 (1996).

The requirements for a claim of racially selective law enforcem ent draw on what the Supreme Court has called “ord inary equal protection standar ds.” Armstrong

, 517 U.S. at 465 (quoting Wayte v. United States , 470 U.S. 598, 608 (1985)). The plaintiff must demonstrate that the defendant’s actions had a d iscriminatory effect and were motivated by a discriminatory purpose, Armstrong , 517 U.S. at 465. These standards have been applied to traffic stops challenged o n equal protection grounds. Chavez v. Illinois State Police , 251 F.3d 612, 635-36 (7th Cir. 2001); Farm Labor Org. Comm. v. Ohio State Highway Patrol , 308 F.3d 523, 533-36 (6th Cir. 2002). [ Marshall , 345 F3d at 1168. See also Carrasca v Pomeroy , 313 F3d 828, 834 (CA 3, 2002) (“To prevail on an equal protection c laim in the racial profiling context, Plaintiffs would have to show that the chall enged law enforcement practice had a discriminatory effect and was motiva ted by a discriminatory purpose.”).]

Thus, in order to survive a motion for summary disposition, “a plaintiff in a § 1983 suit challenging alleged racial discrimination in traffic stops and arrests must present evidence from which a jury could reasonably infer that the law enforcement of ficials involved were motivated by a discriminatory purpose and their actions had a discriminat ory effect.” Marshall , 345 F3d at 1168. Discriminatory effect requires a showing that similarly situated individuals of a different race were treated differently. United States v Armstrong , 517 US 456, 465; 116 S Ct 1480, 1487; 134 L Ed 2d 687 (1996). A plaintiff may use statistical eviden ce or identify specific individuals of another race to demonstrate such an effect. Bennett v Eastpointe , 410 F3d 810, 818 (CA 6, 2005).

In this case, plaintiff argued that statistical evidence, as w ell as the fact that VanderKooi had chosen to pursue him instead of the other individual, estab lished a discriminatory effect. Additionally, plaintiff argues that the other person was not su bject to the P&P procedure although he did not have identification. The other person did provide an affidavit stating that he was not searched or P&P’d even though he lacked identification. However, both he and plaintiff were subjected to a stop by GRPD officers for the same reason, and Newton testified that the individual on the bicycle provi ded a school identification card , that he believed the identity was accurate, and that he performed a search to which the individua l consented.

With regard to statistical evidence, plaintiff provides an ana lysis of 439 GRPD incident reports in 2011 and 2012 and conc ludes that 75% of the officer- initiated encounters described-11- involved a black subject while only 15% involved white subjects , despite the 2010 Grand Rapids census showing that the city’s population as 21% black and 65% white.

With regard to the statistical evidence, federal courts have n oted limitations in the use of general census data as a benchmark for proof of discriminatory effect in police encounters. See Chavez , 251 F3d at 643-645 (noting that “[i]t is widely acknowledged that the Census fails to count everyone, and that the unde rcount is greatest in certain subgroups of the population, particularly Hispanics and Afri can–Americans”; explaining that, even assuming the census data was accurate, it did not shed light on the number of minorities driving on the Illinois highways; and concluding that it could “not find that the statistics prov e that the Valkyrie officers’ actions had a discriminatory effect on the plaintiffs”). However, evenassuming that the statistical evidence or the affidavit of the other involved individual suff iced to create a genuine issue of material fact regarding discrimi natory effect, plaintiff has fa iled to demonstrate a discriminatory

purpose.

Under the discriminatory purpose requirement, courts “may consi der direct evidence of discrimination, statistical evid ence showing a discriminatory i mpact, or other factors that could reveal a discriminatory purpose, like the historical background of the policy.” Mendiola– Martinez v Arpaio , 836 F3d 1239, 1261 (CA 9, 2016); see also McCleskey v Kemp , 481 US 279, 293, 293 n 12; 107 S Ct 1756, 1767; 95 L Ed 2d 262 (1987). The discriminatory purpose need not be the only purpose, but it must be a motivating factor in the decision.” Marshall , 345 F3d at
1168.

Although plaintiff asserts that t he trial court erred by not an alyzing his claims under the burden-shifting framework articulated in McDonnell Douglas Corp v Green , 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), we conclude the application o f that framework would not have altered the outcome. Va nderKooi alleged a nondiscriminato ry reason for the stop, search, and P&P. Thus, regardless of whether this Court frames the ana lysis as one under McDonnell Douglas , the issue remains the same: construing the evidence submitted by the parties in a light most favorable to plaintiff, did he present sufficient evidence for a reasonable jury to infer that VanderKooi had acted with a discr iminatory purpose? We conclud e that he did not . None of the evidence presented reveals a racial motivation in VanderKooi’s decision-making, and the statistics offered by plaintiff, even assuming that they showed a discriminatory effect in the number of officer-initiated stops in the city of Grand Rapids, are insufficient to demonstrate that VanderKooi acted with a discriminatory purpose in his case. See McCleskey , 481 US at 292.

Plaintiff therefore failed to pre sent evidence from which a jur y could reasonably infer that VanderKooi or other officers on the scene acted with a dis criminatory purpose. See
Innovation Ventures , 499 Mich at 507. Accordingly, the trial court properly grant ed summary disposition in favor of Va nderKooi on plaintiff’s § 1981 and eq ual protection claims.

III. CLAIMS AGAINST THE CITY

Plaintiff argues that the trial court erred by granting summar y disposition in favor of the city under MCR 2.116(C)(10). We disagree for the reasons state d in Johnson , ___ Mich App at ___, and affirm the trial court’s gr ant of summary disposition in favor of the city.-12- IV. DEFENDANTS’ MOTION TO STRIKE

Finally, plaintiff argues that the trial court erred by granti ng defendants’ motion to strike his proposed expert witness’s testimony. We disagree, largely for the reasons stated in Johnson

, ___ Mich App at ___. We further di sagree, with regard to plain tiff’s § 1981 and equal protection claims, for the followi ng additional reasons.

MRE 702 governs expert testimony and provides as follows:

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

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

In this case, the trial court noted that plaintiff wished to u se Dr. Terrill’s testimony to “draw conclusions from the evidence of a racial disparity in P& P reports . . . based on an analysis of incident reports, and the use of ordinary mathemati cal computations that any lay person can perform . . . .” The trial court reasoned that the trier of fact did not need assistance to understand the facts and evidence and that the process by which Dr. Terrill arrived at his conclusions was unclear. Further, the trial court concluded th at plaintiff failed to meet the
Daubert standard because he did not cite any peer-reviewed literature supporting Dr. Terrill’s method of using unadjusted census data. The trial court thus d etermined, and we agree, that Dr. Terrill’s testimony was inadmissible under MRE 702. Plaintiff failed to establish that Dr. Terrill’s statistical analysis and resulting opinion was based on sufficient data or reliable methods. When asked whether he w as aware of any expert that us es unadjusted census data, Dr. Terrill replied, “I haven’t got that far in my analysis or rese arch of adjusted, non-adjusted. It’s something that I am going to ponder into very carefully and ver y thoughtfully.” We conclude that the trial court did not abuse its discretion in striking D r. Terrill’s testimony pursuant to
MRE 702. See Elher , 499 Mich at 28 (holding that t he trial court did not abuse it s discretion and explaining that, although “peer-r eviewed, published literature is not always necessary or sufficient to meet the requirements of MRE 702, the lack of sup porting literature, combined with the lack of any other form of s upport, rendered [the expert’s] opinion unreliable and inadmissible under MRE 702”).-13- Affirmed.

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

Wilder, P.J., did not participate.