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August 2013 Edition    

 

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

John J. Gillooly  & Jami E. Leach

 

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LEGAL UPDATES

by Roger A. Smith

A POLICE CHIEF IS A POLICE CHIEF BY ANY OTHER NAME

In Petipren v Jaskowski, the Michigan Supreme Court in an Opinion decided June 20, 2013 was asked to determine whether or not immunity extended to a police chief as one of the “highest appointive executive official of all levels of government” as applied to his acts performed within the authority vested in the position or whether it should be limited to high level tasks.

Village of Port Sanilac Police Chief Jaskowski was sued under state law by plaintiff who claimed he was unlawfully assaulted and wrongfully arrested.  Chief Jaskowski moved for summary disposition at the trial court level citing MCL 691.1407(5) which states that:

A judge, a legislator, an elective or highest appointive executive official of all levels of government, are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative or executive authority.

The trial court denied the motion (affirmed by a divided Michigan Court of Appeals panel) on the basis that, at the time of the Chief’s interaction with the plaintiff, he was performing acts which could have otherwise been performed by any low-level employee/patrol officer and not high level tasks ordinarily associated with a police chief.

The Michigan Supreme Court in a divided and reduced participation panel (the two latest appointed justices did not participate) reversed and held that the absolute immunity as set forth under MCL 691.1407(5) applied to the police chief as to all conduct within the executive authority of his position, including routine police patrol activities.

This opinion is significant for many of the smaller municipalities whose Chiefs of Police are often called upon to perform traditional patrol duties.  It should also be stated, of course, that this “absolute immunity” is only applicable to state law claims and would have no effect upon any claims of constitutional deprivation brought under federal law.

HOME ENTRY

Unless armed with a warrant, police officers should always think twice (or more) before entering a citizen’s home. The risks associated with home entry were dealt with, once again, by the Sixth Circuit Court of Appeals in Smith v Stone Burner, decided on May 10, 2013.  That case involved two police officers who were in the process of investigating an alleged shoplifting of a $14.99 phone charger.  Generally speaking, of course, police officers need a warrant, reliance upon exigent circumstances (hot pursuit, fear of destruction of evidence, concern for the safety of individuals, etc.), or consent to enter a home.

It was the latter explanation that the officers in Smith proffered to excuse the first of two entries into the plaintiff’s home.  When the officers knocked at the door, they were met by the suspect’s brother who told them the suspect was upstairs.  When the police officers asked the brother if they could enter the home, the brother responded that he would ask his mother, and that the officers “could wait on the back deck of the house while he checked.”  However, one of the officers followed the brother through the door, and while the brother admittedly did not say anything in protest, he gave the officer “…a look like why are you coming in the house, I told you to wait on the deck.”  When the brothers all came downstairs with their mother, everyone stepped back outside onto the deck at the officer’s invitation.

The Sixth Circuit reminded us that mere acquiescence to enter a home does not show consent: A resident must freely invite the officer into the house.  After looking at the competing versions of what happened, the court affirmed the trial court’s denial of the officers’ Motion for Qualified Immunity, suggesting that clear questions of fact existed as to whether or not the officers’ entry into the home on the first occasion was with consent.

A second “entry’ occurred when, during the subsequent interview, the suspect denied stealing the item and then was asked by the officer if he could look inside the house.  The suspect “mumbled something” and started walking back inside.  The officer followed, but the suspect started to pull the door closed behind him.  The officer held the door open, told the suspect to stop, and reached inside the home to grab the suspect by the wrist and pulled him back outside.

With respect to the second entry, consent, of course, was not at issue.  Here, the officers faced two significant hurdles: The customary presumption against warrantless entries and the further presumption against warrantless entries to investigate minor crimes or to arrest individuals for committing them.  The court conceded that the officers had probable cause to believe that plaintiff had committed the misdemeanor crime of third degree retail fraud (eye witness reports and video tape), but they scoffed at the suggestion that exigent circumstances existed to support the second entry:  Hot pursuit or the fear that evidence would be destroyed.

The “hot pursuit exception” traditionally commences when a suspect flees from a public place to avoid an arrest and the officer gives chase.  It is in these circumstances that the “emergency nature of the situation” requires “immediate police action.”  Here, however, the court rejected the effort to equate the plaintiff’s mere ending of a voluntary conversation with flight.

The lesson here is that when the suspect returned inside his home and thus ended the consensual conversation, it was incumbent upon the officers to obtain a warrant if they wanted to effectuate an arrest inside the home.

HOLIDAY DISPLAYS

In a February 25, 2013 Opinion (Freedom from Religion Foundation, Inc. v City of Warren), the Sixth Circuit affirmed a district judge’s opinion that the City of Warren’s annual holiday displays positioned in the atrium of its civic center did not violate the Establishment Clause of the First Amendment nor was the city’s denial of positioning plaintiff’s sign a denial of free speech, also embodied in the First Amendment.

Between Thanksgiving and New Year’s, the City of Warren displayed ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a “Winter Welcome” sign and a nativity scene at City Hall.  After the Mayor of Warren rejected the plaintiff organization’s request that the nativity scene be removed, it then requested that a large sign that it created be added to the display essentially suggesting that religion, in general, is nothing more than myth and superstition.  The mayor rejected this request and the lawsuit followed.

The First Amendment states inter alia that “Congress shall make no law respecting an establishment of religion.”  This clause has been construed by Federal Appellate Courts to prohibit government from favoring one religion over another or from favoring religion over non-religion.   The Sixth Circuit, in rejecting plaintiff’s claims under the Establishment Clause, relied upon Supreme Court precedent holding that multi-purpose, multi-symbol displays do not offend the Establishment Clause and that the creche “depicts the historical origins of this traditional event long recognized as a National Holiday.”

With reference to the free speech claim, the Sixth Circuit indicated that the prohibition preventing governments from making any law “abridging the Freedom of Speech” applies to individuals.  The guarantee “restricts government regulation of private speech; it does not regulate government speech.  The government’s own speech is essentially “exempt from First Amendment scrutiny” and, in this case, the City of Warren’s holiday display amounted to, at most, government speech (of course, this does not mean that the City of Warren was free from its obligation to comply with the Establishment Clause or other constitutional guarantees).

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Garan Lucow Miller, P.C. has ten offices throughout the State of Michigan and in Indiana to serve all of your municipal needs:

Genesee County Office 1-800-875-3700

Grand Traverse Office 1-888-923-1611

Indiana Office 1-877-804-2801

Ingham County Office 1-888-910-0300

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Upper Peninsula Office 1-888-841-7772

*Please visit our website for more information regarding our offices, attorneys, practice areas and other helpful publications at www.garanlucow.com

We are happy to answer any questions you may have and provide any further information that might assist your municipal leaders or attorneys.  Feel free to call us directly at 313.446.5501 (John Gillooly) or 313.446.5538 (Jami Leach).  To add or remove a name from this email list, please write to ecarty@garanlucow.com

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Troy Breakfast Seminar-September 5, 2013 at the Troy Marriott

Register now with Eileen Carty 1-800-875-7600 or ecarty@garanlucow.com

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