-1- 

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UNPUBLISHED 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: WILDER, P.J., and BOONSTRA and O’BRIEN, JJ. 

PER CURIAM. 

 Plaintiff appeals by right the trial court’s order denying his motion for partial summary 

disposition, granting summary disposition in favor of defendant Captain 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 Grand Rapids (the city) under 

MCR 2.116(C)(10). Plaintiff also appeals the trial court’s order 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 lacked official identification. In 

both cases, the minor was not charged with a crime. We describe the procedure at issue in more 

depth in Johnson. Id. at __. 

 In this case, VanderKooi made contact with plaintiff after observing him walk up to 

another young man and hand him what appeared to be a large “model 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 decided to continue his observation because the exchange “looked 

like some kind of transaction between the two.” VanderKooi, who was in an unmarked police 

car, followed plaintiff and observed him enter a park. VanderKooi testified that plaintiff’s 

behavior in the park seemed “suspicious,” because plaintiff went 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 parked his vehicle, approached plaintiff 

in the park, identified himself, and asked plaintiff what he was 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 plaintiff told him that he was 

walking home from school and that the object plaintiff had been carrying, which he described as 

the engine of a train, was for a school project. Plaintiff told 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. VanderKooi admitted that, if true, 

plaintiff’s story did not reveal any illegal conduct. 

 When asked why he did not believe plaintiff, VanderKooi testified 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 suspecting might be 

a lookout and that the property was, a lot of times when you get 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 crouching. 

VanderKooi testified that plaintiff was carrying a knapsack, and that he asked for consent to look 

inside the knapsack. Plaintiff gave consent, so VanderKooi asked 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, Officer Luke Nagtzaam and 

Sergeant Stephen Labrecque of the GRPD arrived at the scene. VanderKooi testified that he 

asked one of the officers to take a picture of plaintiff and that he did not ask for plaintiff’s 

fingerprints to be taken. However, VanderKooi testified that he 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 described the contact between plaintiff 

and Captain VanderKooi as “low key and non-confrontational.” Labrecque 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 request. Labrecque took plaintiff’s picture with a digital camera 

and obtained plaintiff’s thumbprint using a GRPD-issued thumbprint card and inkpad. 
-3- 

Labrecque testified that the P&P was quick and would not have taken more than two minutes. 

Labrecque was not involved with the 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 informed someone at plaintiff’s scene 

that the individual on the bicycle no longer possessed the object that VanderKooi had seen. 

VanderKooi testified that, once he learned that the other individual did not have the object, he let 

plaintiff walk away because the situation did not rise to the level of probable cause. 

 According to VanderKooi, plaintiff was free to leave during the encounter and could have 

left without having his picture taken. VanderKooi testified that 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 said “no.” VanderKooi further testified that he did not run plaintiff’s 

thumbprint through the Automated Fingerprint Identification System (AFIS) and had no personal 

knowledge of any other officer doing so. 

 Plaintiff testified that he consented to the search of his person and bag. He testified that 

VanderKooi told him that he needed to take his picture to identify who he was. Plaintiff further 

testified that he said “okay” in a nervous and shaky voice. Plaintiff described the officers’ 

demeanors during the stop as calm. Plaintiff also testified that he asked why his fingerprint 

needed to be taken, and that VanderKooi told him it was “just to clarify again to make sure you 

are who you say you are.” Plaintiff testified that he responded “okay.” Plaintiff’s thumbprint 

was then taken. Plaintiff testified that VanderKooi told him that he was “good to go” and that 

plaintiff shook the officers’ hands before going home. He testified that he was “freaked out” by 

the incident and that his mother drove him to and from school for 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 § 1988. The complaint alleged that, without probable 

cause or lawful consent, VanderKooi had directed an officer to search, photograph, and 

thumbprint plaintiff. The complaint further alleged that VanderKooi had taken these actions 

because plaintiff was African American; that there was no legal justification for the stop, 

detention, search, photograph, or thumbprint; and that VanderKooi’s actions—individually or by 

direction to other officers—were unreasonable. The complaint alleged that VanderKooi violated 

plaintiff’s right to equal protection and to equal rights under 42 USC § 1981, as well as 

plaintiff’s Fourth Amendment rights and his constitutional right to privacy. The complaint 

requested damages, the destruction of the photograph and thumbprint, fees and costs, and any 

other relief deemed appropriate. Plaintiff later amended his complaint to allege that the P&P 

 

1

 The suit was originally brought by plaintiff’s next friend, Anchanet Harrison (his mother), but 

was eventually amended to name plaintiff, 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, plaintiff’s case was consolidated with Johnson for purposes of 

discovery only. In 2015, plaintiff moved for partial summary disposition on his Fourth and Fifth 

Amendment claims, and on his equal protection claim against VanderKooi and his municipal 

liability claim against the city insofar as they related to the P&P procedure. 

 Both defendants moved for summary disposition. VanderKooi argued that plaintiff’s 

constitutional rights were not violated and that he was protected by qualified immunity regarding 

plaintiff’s Fourth and Fifth Amendment claims because the law regarding photographing and 

fingerprinting during an investigatory stop was not clearly established. VanderKooi further 

argued that he had reasonable suspicion to stop plaintiff, or in the alternative that the contact was 

a consensual encounter. VanderKooi argued that there was no constitutional right to privacy 

applicable to this situation, that plaintiff could not show purposeful racial discrimination, and 

that no taking had occurred. The city argued that plaintiff could not establish a violation of his 

constitutional rights or that the city was the moving force behind any violation. 

 Defendants later moved to strike plaintiff’s proposed expert witness, 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 regarding the motion to strike Dr. 

Terrill and the motions for summary disposition. With respect to the motion to strike, the trial 

court held that the proposed testimony was inadmissible under MRE 702 and MRE 403. With 

regard to VanderKooi’s motion for summary disposition, the trial court held that the length of the 

stop was reasonable and not excessive and that plaintiff had failed 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 implicated. The trial court also 

held that VanderKooi was protected by qualified immunity regarding 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 failed to provide evidence of a 

discriminatory purpose. Accordingly, the trial court granted summary 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 disposition and held that plaintiff had failed to establish a violation of 

his constitutional rights; consequently, summary disposition in favor of the city was proper under 

MCR 2.116(C)(10). 

 This appeal followed. 

II. CAPTAIN VANDERKOOI 

 Plaintiff argues that the trial court erred by failing to grant partial summary disposition in 

his favor on his claims against VanderKooi relative to the ordering 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 trial 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 denied 

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 claim is barred by immunity granted by law” and “may be 

supported or opposed by affidavits, depositions, admissions, or other documentary evidence; the 

substance or content of the supporting proofs must be admissible in evidence.” By Lo Oil Co v 

Dep’t of Treasury, 267 Mich App 19, 26; 703 NW2d 822 (2005) (explaining that the complaint’s 

allegations “are accepted as true unless contradicted by documentary submissions”). “A trial 

court properly grants a motion for summary disposition under MCR 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) tests the factual sufficiency of the complaint. 

When evaluating a motion for summary disposition under MCR 2.116(C)(10), a 

trial court considers affidavits, pleadings, depositions, admissions, and other 

evidence submitted by the parties . . . in the light most favorable to the party 

opposing the motion. Where the proffered evidence fails to establish 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, giving the benefit of reasonable doubt 

to the opposing party, leaves open an issue upon which reasonable 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 violated the right has no qualified 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 application 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 AMENDMENT 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 granting 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 had not violated plaintiff’s 

Fourth Amendment rights by making contact with plaintiff or performing a search of his bag. 

 A person is liable under 42 USC 1983 if he or she, “under color of any statute, ordinance, 

regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of 

the United States or other person within the jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the Constitution . . . .” 42 USC 1983. “Section 1983 itself 

is not the source of substantive rights; it merely provides a remedy 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 under § 1983 is stated where a 

plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant 

deprived the plaintiff of that right while acting under color of 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 valid investigatory stop if they 

possess ‘reasonable suspicion’ that crime is afoot” without a warrant. 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 search and seizure when consent is 

unequivocal, specific, and freely and intelligently given.” Lavigne v Forshee, 307 Mich App 

530, 538; 861 NW2d 635 (2014) (quotation marks and citation omitted). Consent can “be given 

in the form of words, gesture, or conduct,” but “cannot be established 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 totality of the circumstances, and 

consent may be voluntary even if the defendant does not know that he has a right to refuse 

consent; “knowledge of the right to refuse consent is one factor 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) (quotation marks 

and citation omitted). See also Borchard-Ruhland, 460 Mich at 294 (explaining “that the people 

need not prove that the person giving consent knew of the right to withhold consent”). 

 In this case, the initial contact between plaintiff and VanderKooi was consensual. 

Plaintiff testified that VanderKooi identified himself and asked 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 was unreasonable. The trial 

court found both that plaintiff consented to the initial contact and never attempted 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, plaintiff testified that, following 

the stop, and after VanderKooi heard his explanation, VanderKooi told him to “hold on” and 

then called for additional officers. Plaintiff, a minor, was told to wait by an adult police officer 

who summoned more officers to assist him. At the least, therefore, there was a genuine issue of 

material fact regarding whether plaintiff was seized at that point. 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 believed that he was not free to 

leave”). 

 However, we agree that the stop was based on a reasonable suspicion and that the 

detention was not of an excessive duration. As our Supreme Court has explained, law 

enforcement officers are able to “approach and temporarily detain a person for the purpose of 

investigating possible criminal behavior even though there is no probable cause to support an 

arrest,” and the “brief detention does not violate the Fourth Amendment if the officer has a 

reasonably articulable suspicion that criminal activity is afoot.” 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 whether a reasonable suspicion exists 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 experience and specialized training to 

make inferences from and deductions about the cumulative information 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 have more than a mere hunch, but 

reasonable suspicion is a lower standard than probable cause and 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 stop, the likelihood of criminal activity 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). With 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 plaintiff and another individual 

that at least raised the question of whether a transfer of stolen 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 observed was consistent with 

moving stolen property, which led to the following thought going through his mind: “You got a 

person that’s walking and now he gets it to the person on the bike, and the guy on the bike can 

get away quicker and bring it to somewhere else.” VanderKooi further explained that, when he 

observed plaintiff kneeling or crouching in a patch of small trees and grass, he suspected that 

plaintiff was acting as a lookout. In addition, VanderKooi testified 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 school, and that home invasions and larcenies were higher the closer 

one got to the core of the city. VanderKooi explained that most home invasions occurred during 

the daytime when people were not home and that, during his 36 years 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 cause, and individually may be 

insufficient to support a reasonable suspicion, when the totality of the circumstances is 

examined, we conclude that the trial court did not err by holding that VanderKooi possessed a 

reasonable suspicion sufficient to instigate a brief investigatory 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, we held that, taken together, they 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 general suspicion . . . . But heightened 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 required to justify the temporary seizure 

approved in Terry.” Id. at 62-63. 

 In this case, by contrast, VanderKooi was able to articulate a particular and reasoned 

basis for his decision to conduct an investigatory stop: to determine whether plaintiff was 

involved in the transportation of items stolen during a home invasion 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 was 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 officers may stop innocent people”). 

 With regard to the length of the detention, plaintiff argues that 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 lasted 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 not 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 evidence shows that GRPD officers 

“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.” Sharpe, 470 US at 686. 

VanderKooi sought to ascertain plaintiff’s identity and the origin of the object that he believed 

may have been stolen. Officers contacted the other individual involved, and the two stories were 

compared, after which VanderKooi recognized that he lacked probable cause for an arrest and 

plaintiff was released. The trial court did not err by granting summary disposition in favor of 

VanderKooi on the ground that no Fourth Amendment violations occurred. 
-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 Fourteenth Amendment right to equal protection 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 proceedings for the 

security of persons and property as is enjoyed by white citizens, 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 contracts” 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 impairment by 

nongovernmental discrimination and impairment under color of State 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 evidence; (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 member 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 discrimination that violates 

the Equal Protection Clause of the Fourteenth Amendment will also violate § 1981.” Gratz v 

Bollinger, 539 US 244, 276 n 23; 123 S Ct 2411, 2431; 156 L Ed 2d 257 (2003). 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 discrimination in § 1981 is coextensive with the Equal Protection Clause”). As plaintiff’s claim 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 essentially 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 no State shall “deny to any person 

within its jurisdiction the equal protection of the laws,” US Const, 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 and seizures 

“may violate the Equal Protection Clause when they are initiated 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 enforcement draw on what 

the Supreme Court has called “ordinary equal protection standards.” 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 discriminatory effect 

and were motivated by a discriminatory purpose, Armstrong, 517 U.S. at 465. 

These standards have been applied to traffic stops challenged on 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 claim in the racial 

profiling context, Plaintiffs would have to show that the challenged law 

enforcement practice had a discriminatory effect and was motivated 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 officials involved were motivated 

by a discriminatory purpose and their actions had a discriminatory 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 evidence 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 well as the fact that VanderKooi 

had chosen to pursue him instead of the other individual, established a discriminatory effect. 

Additionally, plaintiff argues that the other person was not subject 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 provided a school identification card, that he believed the identity was 

accurate, and that he performed a search to which the individual consented. 

 With regard to statistical evidence, plaintiff provides an analysis of 439 GRPD incident 

reports in 2011 and 2012 and concludes 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 noted 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 undercount is greatest in certain subgroups of the population, 

particularly Hispanics and African–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 prove that the Valkyrie officers’ actions 

had a discriminatory effect on the plaintiffs”). However, even assuming that the statistical 

evidence or the affidavit of the other involved individual sufficed to create a genuine issue of 

material fact regarding discriminatory effect, plaintiff has failed to demonstrate a discriminatory 

purpose. 

Under the discriminatory purpose requirement, courts “may consider direct evidence of 

discrimination, statistical evidence showing a discriminatory impact, 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 the trial court erred by not analyzing 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 of that framework would not 

have altered the outcome. VanderKooi alleged a nondiscriminatory reason for the stop, search, 

and P&P. Thus, regardless of whether this Court frames the analysis 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 discriminatory purpose? We conclude 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 present evidence from which a jury could reasonably infer 

that VanderKooi or other officers on the scene acted with a discriminatory purpose. See 

Innovation Ventures, 499 Mich at 507. Accordingly, the trial court properly granted summary 

disposition in favor of VanderKooi on plaintiff’s § 1981 and equal protection claims. 

III. CLAIMS AGAINST THE CITY 

 Plaintiff argues that the trial court erred by granting summary disposition in favor of the 

city under MCR 2.116(C)(10). We disagree for the reasons stated in Johnson, ___ Mich App at 

___, and affirm the trial court’s grant of summary disposition in favor of the city. 
-12- 

IV. DEFENDANTS’ MOTION TO STRIKE 

 Finally, plaintiff argues that the trial court erred by granting defendants’ motion to strike 

his proposed expert witness’s testimony. We disagree, largely for the reasons stated in Johnson, 

___ Mich App at ___. We further disagree, with regard to plaintiff’s § 1981 and equal protection 

claims, for the following additional reasons. 

 MRE 702 governs expert testimony and provides as follows: 

If the court determines that scientific, technical, or other specialized 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 in the form of an opinion or otherwise if (1) the 

testimony is based on sufficient facts or data, (2) the testimony is the product of 

reliable principles and methods, and (3) the witness has applied the principles and 

methods reliably to the facts of the case. 

 MRE 702 “requires the circuit court to ensure that each aspect of an expert witness’s 

testimony, including the underlying data and methodology, is reliable,” and it “incorporates the 

standards of reliability that the United States Supreme Court articulated 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 admissibility of expert witness testimony.” 

Id. at 23. 

 In this case, the trial court noted that plaintiff wished to use 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 mathematical 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 that 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 determined, 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 was aware of any expert that uses unadjusted census data, Dr. 

Terrill replied, “I haven’t got that far in my analysis or research of adjusted, non-adjusted. It’s 

something that I am going to ponder into very carefully and very thoughtfully.” We conclude 

that the trial court did not abuse its discretion in striking Dr. Terrill’s testimony pursuant to 

MRE 702. See Elher, 499 Mich at 28 (holding that the trial court did not abuse its discretion and 

explaining that, although “peer-reviewed, published literature is not always necessary or 

sufficient to meet the requirements of MRE 702, the lack of supporting literature, combined with 

the lack of any other form of support, 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.