Washtenaw County judge dismisses charges of operating under the influence in fatal crash, but second-degree murder charge stands
November 30, 2010
Michael Kelly was in the midst of a psychotic episode when his vehicle crossed the median of US-23 and crashed into oncoming traffic, killing a man last spring, said his attorney, Andrew Abood. But Kelly was not under the influence of any drugs at the time.
A Washtenaw County district judge affirmed that argument, dismissing two felony counts of operating a vehicle while under the influence following a competency hearing in district court. But Kelly still faces charges of second-degree murder and manslaughter with a motor vehicle at his preliminary hearing on Dec. 17.
PCS Experts v Check Wirelss
Abood law Firm obtain ex parte TRO against Defendant for unlawfully locking out ALF’s client.
Motions filed on People v Dion Lanier
Michigan’s New Super Drunk Law
Andrew P. Abood is interviewed by Channel 10 news on Michigan’s new super drunk law.
‘Super Drunk’ Law Takes Effect Oct. 31
October 25, 2010
If you’re arrested for drunk driving and it’s your first time, you can lose your license, pay a fine or get jail time but if you’re super drunk, you’re looking at much bigger penalities.
“The high BAC bill targets first time offenders who register a .17 or above,” said Ingham County Prosecutor Stuart Dunnings, III.
That is more than twice the legal limit. A third of all drunk driving arrests in Michigan result in blood alcohol contents of .17 and above. The new “super drunk” category of the law combats a growing problem.
Products Liability Case
Abood Law Firm prepares to attend Rule 16 Scheduling Conference in Federal District Court for the Western District of Michigan today. The case involves a defect in a muzzle loader shotgun that results in several fingers of my client being blown off. A rule 16 scheduling conference is a meeting to set the dates upon which the case will proceed and the extent to which discovery will progress.
Okemos High School mourns the death of 3 high school graduates
Okemos High School mourns the death of 3 high school graduates who were part of the 2010 graduating class with a candle lit vigil and amazing grace.
Why you need a lawyer? Here is a case where they got it 100% wrong.
Prepares for Trial on Uttering and Publishing charge.
Abood Law Firm is preparing for trial for client charged with two counts of Uttering and Publishing (14 year felonies). Trial to begin tomorrow before the Honorable Rose Aquilina in 30th Judicial Circuit Court in Ingham County. Trial should last 3 or 4 days.
Ingham County Circuit Court Judge James R. Giddings declares Ingham County Circuit Judge William E. Collette Disqualification Order Null and Void
Read more at:
Andrew Abood asks that Judge Giddings be allowed to preside over Judge Nettles-Nickerson trial
Read more at:
Alumni start criminal justice mentorship program
The South End
October 3, 2010
A group of Wayne State alumni has started a program to help prepare students early for a career in criminal justice. The Criminal Justice Mentoring Program kicks off Oct. 7 at a meet-and-greet in downtown Detroit’s La Casa De La Habana, 1502 Randolph St.
The program, started by the alumni who are members of the Criminal Justice Alumni Advisory Board, is only for incoming freshman and is slated for the fall and winter semesters. The program is open to students of any major who are interested in a career in criminal justice.
Murder Charges Dropped Against 3
September 27, 2010
LANSING – Charges are dismissed against three of the seven men charged in the shooting death of a young Lansing woman in July. Charles Kunta Lewis, Ralphael Crenshaw and Nicholas Brown saw the murder and robbery charges against them dismissed Monday, during a preliminary examination in Lansing. It was determined that not enough evidence existed to place them at the scene of the July 23rd shooting on Lenore Street. 19-year-old Shayla Johnson was killed when a group of men stormed her home and shot her several times.
Abood Law: Case Studies
Abood Law: Case Studies: “Do you think should be able to walk in your neighborhood without being arrested?”
Andrew Abood Comments on Drew Peterson Trial that Begins July 8, 2010
Read more in the Chicago Tribune at:
Woman won’t face charges in shooting of Lansing police officer husband
Read More at:
Ingham County Bar Foundation holds golf outing
Roberta M. Gubbins
The team of Andrew Abood, Clint VanNocker, Jerome Abood, and Carrie Jean Cousino with a score of 60 were the winners of Division One of the Ingham County Bar Foundation (ICBF) Annual Memorial Golf Classic, held at the Country Club of Lansing on June 14, 2010. Their names will be engraved on the trophy that they can proudly display for a year.
The second division winning team was Jan Cunningham, Thomas L. Lapke, Kel Scott, and Steven A. Transeth with a score of 64. Third division winners, with a score of 68, were the team of Hon. Richard Ball, Hon. William Collette, Paul Ross and James McDaniel.
Abood Law Firm Wins the Ingham County Bar Association Memorial Golf Tournament
Andrew Abood, Jerome Abood, Clinton Van Nocker and Carrie Cousino combined efforts to win the Ingham County Bar Association Memorial Golf Tournament with a score of 60. The event was held at the Country Club of Lansing. A wonderful time was had by all.
Jerome Abood was credited with the longest drive from all the participants. Clinton Van Nocker made the longest putt from all the participants.
A special thank you goes to the Ingham County Bar Association for an event that was well planned.
University of Michigan student to undergo mental competency hearing in fatal crash
May 27, 2010
A University of Michigan student criminally charged with causing a crash on US-23 that killed an Algonac man has since been diagnosed with schizophrenia, his attorney said today.
Michael Ronald Kelly, 21, is charged with second-degree murder, operating while intoxicated causing death, manslaughter with a motor vehicle and operating with the presence of a controlled substance following the March 12 crash that killed 25-year-old Brandon Robert Rapp.
Andrew Abood to Deliver a Presentation at Cooley Law School, Ann Arbor
Cooley Law School announces that Andrew P. Abood has been asked to return to its Ann Arbor campus to speak in regards to the Ethics, Service and Professionalism Program. The subject will be a lawyer’s obligation to the client and the rules of professional responsibility in high profile cases. For more info: http://www.cooley.edu/ethics/
Center for Ethics, Service, and Professionalism | Thomas M. Cooley Law School
Cooley intends to foster the highest caliber of relationships between the Cooley community and the legal and local communities.
Client Charged with Operating a Vehicle While Intoxicated Receives Reduced Careless Driving Allowing him to Retain his Commercial Drivers License
Our client charged with a First Offense of Operating While Intoxicated was facing the loss of his job. After meeting with opposing counsel, the Abood Law Firm was able to have the charge reduced to Careless Driving.
Our Client was thrilled with result and is able to retain his job. The Abood Law Firm advises that second chances do not come along in life that are of this magnitude — make the most of it. Our client vows never to drink again.
Andrew Abood Speaks on Chicago Radio Station WGN About His Withdraw from the Drew Peterson Case.
Part I. http://www.youtube.com/watch?v=-7_fw4noRzI
Part II. http://www.youtube.com/watch?v=DMIWD87dYR0
Andrew Abood and George Lenard speak out about withdrawal from Peterson defense
April 14, 2010
We emailed attorneys Andrew Abood of Abood Law and and George Lenard and asked them if they wanted to comment on today’s motion to withdraw from the defense team of Drew Peterson. We specifically asked about the mention in Christy Gutowski’s story for the Daily Herald of a suicide defense.
Developer Suing Over Newspaper Article
The Lansing State Journal Reports:
Local Developer Paul Vlahakis is suing the company that owns the Lansing City Pulse and one of its reporters for a December report accusing Vlahakis of owing $327,288 in delinquent taxes.
The lawsuit was filed Monday against To the Max, LLC, which owns the weekly publication, and reporter Neal McNamara.
Attorney Andrew Abood said the story caused Vlahakis, “Humiliation, mortification, and embarrassment”, because it falsely claimed Vlahakis owed delinquent taxes on 101 S. Washington Square property. A limited liability company, 101 S. Washington Development, is responsible for the taxes, not Vlahakis, Abood said.
Abood and Vlahakis requested a front-page retraction before filing suit. “The way they published this article, it was published as a most wanted ad,” Abood said. “We asked them to publish a retraction. Ultimately, they never did.”
Berl Schwartz, Lansing City Pulse’s editor and publisher, said he was expecting a meeting to negotiate a clarification when he learned that his publication was sued.
“I don’t think a retraction is in order,” Schwartz said. “What we printed was substantially true.”
—From Staff and Wire Reports
Spartans’ Wilson gets 21-day jail term
April 1, 2010
Michigan State defensive lineman Oren Wilson was sentenced Wednesday to 21 days in jail for his involvement in a November residence hall assault.
Wilson, who also received 12 months’ probation and must perform community service, had pleaded guilty to two counts of misdemeanor assault and battery in the Nov. 22 incident, admitting to punching one person and kicking another.
He was the last of 11 Michigan State players to be sentenced and the fourth to receive jail time.
Michigan State coach Mark Dantonio said last week that Wilson was in the process of transferring from the university. But Wilson’s lawyer told reporters Wednesday that Wilson wants to return to the team and had plans to contact Dantonio.
Wilson gets jail time, seeks return to Spartans
April 1, 2010
Michigan State nose tackle Oren Wilson will serve 21 days in jail for his involvement in the November residence hall assault.
Wilson’s sentence Wednesday wasn’t a major surprise, as he had pleaded guilty to two counts of misdemeanor assault and battery after admitting to kicking one person and punching another in the Nov. 22 incident. He also received 12 months probation and community service.
All 11 sentences have now been handed out to the Michigan State players who pleaded guilty to assault. Four have received jail time — Glenn Winston (180 days), Roderick Jenrette (90 days), Wilson and Fred Smith (five days) — while the others got probation and community service. Four players charged were reinstated last week for spring practice, while five are seeking transfers and both Winston and Jenrette were dismissed Nov. 24.
Ex-Judge Spends Night in Jail in Reckless-Driving Case
March 29, 2010
A former Michigan judge who was removed from the bench in a June 2008 state supreme court opinion spent a night in jail over the weekend after a reckless driving arrest before being freed on $5,000 bond.
After initially being arrested Saturday on suspicion of drunken driving, Beverly Nettles-Nickerson was charged with reckless driving and resisting arrest, according to the Lansing State Journal and WLNS-TV 6.
But she was not charged with drunken driving, the LSJ article says, and one of her lawyers says she had not been drinking. Further, Meridian Township police never gave her even a field sobriety test, even though Nettles-Nickerson requested a breath test, says attorney Andrew Abood. The police “arrested her for drunk driving without doing a single, standard procedure in regards to a drunk-driving arrest.”
Andrew Abood Speaks on Using Social Media to Build a Law Practice
Read the article at:
Andrew Abood speaks on using social media to build a law practice
Roberta M. Gubbins
March 25, 2010
“How did you get your last client?” Andrew Abood asked the group of attorneys attending the ICBA Luncheon Lecture held on March 17th at the Michael Frank building in Lansing. The answers given between sips of bright green lemonade in celebration of St. Patrick’s Day, included
“Through our website; referral from other attorneys; and referrals from clients.”
Do you think should be able to walk in your neigbhorhood without being arrested?
Please read this opinion by the United States District Court for the Western District of Michigan:
The Abood Law Firm does not represent a party in this lawsuit.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
JIYA LAL GUPTA,
Plaintiff, File No. 1:09-CV-573
BELL BARTON CRANE, et al.,
O P I N I O N
Plaintiff Jiya Lal Gupta is a resident of Okemos, Michigan. Defendants Barton Crane and Dale Hausermann are police officers employed by Defendant Meridian Charter Township (“Township”). Plaintiff’s action arises from the alleged assault, arrest, detention, and imprisonment of Plaintiff by Defendants on June 1, 2007. Before the Court is a motion for summary judgment filed by Defendants. (Dkt. No. 14.) After consideration of Defendants’ motion, the Court has determined that oral argument is not necessary.
Shortly after 10:00 p.m. on the evening of June 1, 2007, a 911 caller reported that a man walking down the sidewalk in a residential area of the Township “appeared intoxicated” because he was “walking slowly” and “stumbling.” Officers Crane and Hausermann responded to a dispatch to investigate.1 Shortly before arriving at Plaintiff’s location, Officer Hausermann pulled over and spoke with the caller. She told him: He’s on Yosemite headed that way now. He appears to be pretty drunk. I think. You know, he just stopped [inaudible] gonna go for a walk and he just stopped and he’s staring, so, and he doesn’t look familiar to me. . . . (Id.) Officer Crane made first contact with Plaintiff and asked him to stop. According to his affidavit, Plaintiff told Officer Crane that he was on his way home to have dinner, and pointed across the street to his house. (Dkt. No. 17, Pl.’s Br. in Opp’n to Mot. to Dismiss, Ex. A, Gupta Aff. ¶ 6.) At an evidentiary hearing in state court, Officer Crane testified that he smelled the odor of intoxicants on Plaintiff’s person and saw Plaintiff stumbling and having difficulty standing. (Dkt. No. 15, Defs.’ Mot. to Dismiss, Ex. 3, 04/12/2007 Hr’g Tr. 9.) The video, which this Court viewed in conjunction with this motion, shows that, when Officer Hausermann arrived at the scene, Plaintiff was standing on the sidewalk surrounded by several officers. Plaintiff told the officers that his name was “Jay”2 and his last name was “Gupta.” Plaintiff told Defendants that he was on private property and that Defendants should talk to “Dave” their “chief” because “he knows me.” Defendants asked if he was referring to Dave Hall, and Plaintiff replied that he was. An officer asked Plaintiff if his name was “Gupta, Gupta” and Plaintiff responded “Yes, yes.” Officer Crane asked Plaintiff
1 Defendants have offered a video taken from the camera of Officer Hausermann’s cruiser. (Dkt. No. 15, Pl.’s Br. in Support of Mot. to Dismiss, Ex. 2, Mobile Vision DVD.)
2 It is unclear whether “Jay” is a nick-name or if that is the proper pronunciation of Plaintiff’s first name.
for his date of birth and Plaintiff responded, “Okay, talk to Dave Hall, good-bye. Dave Hall, go talk to Dave Hall.” One of the officers told Plaintiff that they were concerned for Plaintiff’s safety because he was stumbling and having difficulty walking. Plaintiff repeated “No, no, Dave Hall.” An officer told Plaintiff that he was being loud. Plaintiff told the officers that he was on private property, said “good-bye” several times and walked away toward the street. The officers told Plaintiff several times to “hang on” and “come here.” Officer Crane and another officer followed Plaintiff. One officer stated “Listen to me sir,” and another stated, “Okay, now you’re intoxicated in public. Whoa,” as Plaintiff walked into the street and out of view of the camera. Officer Hausermann remained on the sidewalk until the other officers following Plaintiff walked out of view of the camera. Officer Hausermann then ran across the street toward the location of the other officers. Plaintiff is not seen running on the video, but Defendants allege that he started running toward his house. Plaintiff alleges that he walked across the street and that, when he made it to the front lawn of his home, he was pulled down to the ground by one of the officers and placed into handcuffs. Plaintiff stated repeatedly that he was on his own property. Plaintiff was placed into Officer Hausermann’s cruiser, wherein he gave his full name and refused to take a breathalyser test. After some time, Plaintiff’s wife came out of the house and spoke to him through the window of the cruiser. Plaintiff was then taken to jail in East Lansing. Plaintiff alleges that he was injured during the arrest and that, at the jail, officers aggressively attempted to remove his wedding ring and injured his finger. Plaintiff was kept in jail overnight and issued a ticket for disturbing the peace.
The prosecutor’s office issued a complaint in 55th Judicial State District Court charging Plaintiff with obstructing/opposing law enforcement in violation of Township ordinance 50-141. Plaintiff filed a motion to dismiss the charge. Prior to an evidentiary hearing on that motion, the prosecutor dismissed the disturbing-the-peace ticket and proceeded with the complaint. After an evidentiary hearing, the court dismissed the complaint.
Plaintiff’s civil complaint alleges the following counts of violation of state and federal law: (Count I) assault and battery, (Count II) intentional infliction of emotional distress, (Count III) false imprisonment, malicious prosecution and abuse of process based on alleging criminal activity without probable cause and with malice, (Count IV) abuse of process based on using criminal process for ulterior motives or in retaliation for Plaintiff’s constitutional right to disengage from an encounter with police, (Count V) 42 U.S.C. § 1983 claim based on failure to provide adequate training and instruction, (Count VI) § 1983 claim for violation of the Fourth and Fourteenth Amendments due to arrest and imprisonment without probable cause, (Count VII) § 1983 claim for punitive damages based on arrest without probable cause, (Count VII)3 unfair and unjust treatment in violation of Art. I, § 17 of the Michigan Constitution, (Count VIII) gross negligence and recklessness, and (Count IX) claim for damages.
3This count is also labeled “Count VII” in the complaint.
A. Voluntarily Dismissed Claims
Plaintiff concedes to dismissal of his § 1983 claims against the officers in their official capacities. (Dkt. No. 17, Pl.’s Resp. in Opp’n to Mot. to Dismiss 5.) He also concedes to dismissal of his state law claims against the Township. (Id. at 20.) Finally, Plaintiff concedes to dismissal of the intentional infliction of emotional distress claim in Count II, the abuse-of-process claim in Count IV, his § 1983 claim for failure to train in Count V, and his claim for violation of the Michigan constitution in Count VII. (Id. at 6, 20, 21, 23.) Accordingly, the Court will dismiss foregoing claims with prejudice.
B. Section 1983 Claims
On a motion for summary judgment, the movant must show that “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering such a motion, the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To defeat a properly supported motion for summary judgment, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
Plaintiff contends that his arrest and confinement violated his rights under the Fourth and Fourteenth Amendments. Defendant officers contend that their actions did not violate the Fourth or Fourteenth Amendments and that, in the alternative, they are entitled to qualified immunity.
1. Initial stop
Defendants argue that no Fourth Amendment violation resulted when Defendants stopped Plaintiff on the sidewalk because: (1) they had reasonable suspicion of a violation of the ordinance prohibiting public intoxication, and (2) the officers were acting pursuant to the “community caretaker exception” to the Fourth Amendment.
Under Terry v. Ohio 392 U.S. 1 (1968), the Fourth Amendment allows officers to briefly detain individuals without probable cause if there exists a reasonable suspicion, based on the totality of circumstances and the officer’s experience, that criminal activity “may be” afoot. Id. at 30; see United v. Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”). The “criminal activity” at issue is violation of the Township public intoxication ordinance, which states:
It shall be unlawful for any person to knowingly or recklessly be intoxicated in any public place and:
(1) Engage in conduct which endangers directly either the safety of another person or of property; or
(2) Act in any manner that causes a public disturbance. (Township Ordinance 50-3.)
The officers’ initial investigation and stop were based on the observations of the 911 caller that Plaintiff was walking slowly and stumbling, and Officer Crane’s observations that Plaintiff was stumbling and having difficulty standing, which are restated in the video. Defendant offers no evidence dispute the assertion that he was intoxicated, or that he was stumbling or having difficulty walking. Having received a call from a concerned resident regarding conduct that was suggestive of public intoxication, Defendants were justified in stopping Plaintiff to investigate a possible violation of this ordinance.
Moreover, the community-caretaker rule recognizes that authorities frequently engage in actions to guarantee the safety of the public, but that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute . . . .” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The rule serves to support the reasonableness of warrantless searches and seizures by authorities, much like the exigent circumstances exception. Thus, the Supreme Court determined in Cady that the warrantless search of an unoccupied vehicle on public property was reasonable because the officers were acting in a “caretaking” function to protect the public at large from the possible presence of firearms in the vehicle. Id. at 447. In United States v. Rideau, 969 F.2d 1572 (5th Cir. 1992), the Fifth Circuit held that officers did not violate the Fourth Amendment when they stopped and checked the condition of an individual “standing in the roadway at night in a high crime area, where public drunkenness was common” and who the officers reasonably believed to be drunk. Id. at 1574. The court cited Cady and noted that public intoxication was a criminal offense and that “police have long served the public welfare by removing intoxicated people from the public streets, where they pose a hazard to themselves and others.” Id.
Plaintiff argues that the community-caretaker rule does not apply because Defendants were not engaged in a caretaker function “divorced” from violation of a criminal statute, but were engaged in the investigation of a violation of the public-intoxication ordinance. Even assuming that Plaintiff is correct as to Defendants’ subjective motivations, however, the proper inquiry is whether the circumstances objectively support the action. Brigham City v. Stuart, 547 U.S. 398, 404-05 (2006); United States v. Huffman, 461 F.3d 777, 783 (6th Cir. 2006). It is undisputed that Plaintiff was seen to be stumbling and walking with difficulty, alone, in a public place at night.4 Under the community-caretaker exception, it was eminently reasonable for Defendants to stop and question Plaintiff in order to determine whether he was in need of assistance or posed a danger to himself or others.
For the same reasons, it was reasonable for Defendants to restrain Plaintiff after he walked away. The video record clearly indicates that Defendant officers attempted to obtain identifying information from Plaintiff but that Plaintiff offered confusing responses and was ultimately uncooperative, walking away from the officers into the street and then onto private
4Plaintiff does not contend that he was not intoxicated, but he asserts that he is hypoglycemic. Even if his condition was the cause of some or all of his behavior, there is no evidence that Defendants were aware of this condition, or that, in light of the facts known to them at the time, they should have suspected that his behavior was caused by something other than the influence of alcohol.
property, despite their repeated requests that he remain put. Though Plaintiff provided some identifying information, he prevented the officers from obtaining details sufficient to allow them to verify his identity and to assess the risk of allowing him to continue unimpeded. Under Terry and the community-caretaker exception, Defendants were justified in assuming physical custody over Plaintiff to continue to evaluate the severity of his condition, verify his identity, investigate a possible violation of the public intoxication ordinance, and prevent an unidentified, visibly impaired individual from causing a further disturbance or putting himself or others at risk.
2. False arrest and false imprisonment
While the community-caretaker function justifies the initial stop and temporary detention of Plaintiff, Defendants do not contend that the community-caretaker function justifies the arrest and imprisonment of Plaintiff, particularly after his identity was confirmed and it was discovered that he was located on his own property and could be released into the care of his wife. Instead, Defendants argue that they had probable cause to arrest and imprison Plaintiff for violation of Township ordinances.
Probable cause requires a showing that the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFellippo, 443 U.S. 31, 37 (1979). In a § 1983 action, probable cause is generally a question of fact for the jury unless there is only one reasonable determination possible. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). The Court agrees that Defendants reasonably concluded that they had probable cause to make an arrest for violation of Township ordinances.
The public intoxication ordinance makes it unlawful for an individual to be intoxicated in public and act in a manner that causes a “public disturbance.” (Township Ordinance 50-3.) There is no genuine dispute that, prior to his contact with Defendants, Plaintiff was behaving erratically on a public sidewalk in a residential neighborhood late at night. Plaintiff contends that there are questions of fact as to whether his conduct caused a “public disturbance.” Defendants contend, and Officer Crane testified, that Plaintiff was causing a disturbance, in part, by “staring at houses.” (Hr’g Tr. 12.) There is no evidence that Plaintiff was staring at houses; however, there is no genuine dispute that Plaintiff’s conduct caused a disturbance sufficient to lead a resident to call 911 and, it appears, to reconsider her plan to go for a walk in the neighborhood.
The disturbing-the-peace ordinance provides that it is unlawful to “knowingly or recklessly make any noise or disturbance or engage in any loud or boisterous conduct . . . by which the peace and quiet of any public place is disturbed . . . .” (Township Ordinance 5081.) Plaintiff does not dispute that he was being loud, but he contends that there are questions of fact as to whether his responses to the police officers were sufficiently loud to violate the ordinance. Plaintiff indicates that Officer Hausermann testified that no neighbors complained or reported that Plaintiff was being loud. (Hr’g Tr. 34.) However, Defendants are not required to prove that Plaintiff actually violated the ordinances; they must show that the facts and circumstances before them were sufficient for a person of “reasonable caution” to conclude that a violation had occurred. DeFellippo, 443 U.S. at 37. That standard has been met here. Having received a complaint from an identified witness regarding Plaintiff’s erratic behavior, and having observed Plaintiff’s erratic and indisputably loud behavior firsthand, Defendants could reasonably conclude that Plaintiff had violated the foregoing Township ordinances. In other words, the only reasonable determination possible is that probable cause existed to arrest and detain Plaintiff.
Even assuming that there remain issues of fact as to whether Plaintiff violated the Township ordinances, or whether probable cause existed for his arrest and confinement, Defendants would nevertheless be immune from suit under the doctrine of qualified immunity. In the Sixth Circuit, the test for qualified immunity involves a three-step inquiry:
(1) the Court determines “whether based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred,” (2) the Court considers “whether the violation involved a clearly established constitutional right of which a reasonable person would have known,” and (3) the Court determines “whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.’” Merriweather v. Zamora, 569 F.3d 307, 315 (6th Cir. 2009) (quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)). Qualified immunity shields an officer from suit even when his action violates constitutional rights, as long as he “reasonably misapprehends the law governing the circumstances.” Brosseau v. Haugen, 543 U.S 194, 198 (2004). It is designed to provide “ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In other words, an officer will be denied qualified immunity if he violates a statutory or constitutional right that was “so clearly established when the acts were committed that any officer in the defendant’s position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct.” Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987) (quoted in Nader v. Blackwell, 545 F.3d 459, 473 (6th Cir. 2008)).
Defendants do not dispute that it was clearly established that they could not arrest and imprison Plaintiff without probable cause. The contentious issue is whether Defendants were justified in interpreting Plaintiff’s conduct as a violation of the Township ordinances. Plaintiff indicates that Officer Hausermann conceded that staggering and slurring speech on a public sidewalk in the Township is not, in itself, a violation of the public intoxication ordinance. (Hr’g Tr. 36.) However, Officer Hausermann also testified that the ordinance prohibits such conduct where it causes a public disturbance. (Id.) The public intoxication ordinance does not define “public disturbance,”5 though it is not disputed that at least one
5The Michigan Court of Appeals has determined that the “public disturbance” language in the Michigan public intoxication statute that is substantially similar to the Township ordinance is vague enough to support a constitutional challenge as applied to that case. People v. Gagnon, 341 N.W.2d 867, 870 (Mich. Ct. App. 1983). Rather than invalidate the statute, the court applied other language in the statute and held that an individual’s conduct must endanger the safety of another person or property. Id. However, Plaintiff does not contend that the Township ordinance regarding public intoxication must be interpreted in this manner, or that Defendants should have understood it to prohibit only public intoxication that endangers the safety of another person or property.
member of the public was sufficiently disturbed by Plaintiff’s erratic behavior to contact the authorities. The disturbing-the-peace ordinance does not specify the requisite level of noise required for “loud” behavior to disturb the “peace and quiet” of a public place and thereby violate the law. Interpreting a similar ordinance, the Michigan Court of Appeals indicated that it would consider whether the noise at issue would “offend a reasonable person of common sensibilities and disrupt the reasonable conduct of basic human activities.” City of Lansing v. Hartsuff, 539 N.W.2d 781, 785 (Mich Ct. App. 1995). The court indicated that this approach would require evaluation of “all the surrounding facts and circumstances,” and noted that otherwise acceptable conduct during the daytime might be a violation if it were occurring “in the middle of the night.” Id. Though Defendants testified that no neighbors complained about the volume of Plaintiff’s speech, that evidence does not establish that it was objectively unreasonable for Defendants to conclude that Plaintiff’s indisputably loud conduct in a residential neighborhood late at night was sufficient to constitute a violation of the ordinance, even in the absence of complaints from neighbors. Plaintiff offers no authority to suggest that complaints from nearby individuals are necessary to establish a violation of the ordinance, much less to support a determination of probable cause for an arrest for violation of that ordinance.
In summary, based on the undisputed facts of the case, the only reasonable determination is that Defendants had probable cause to arrest and detain Plaintiff. Moreover, even if there were disputed issues of material fact, Defendants would be entitled to qualified immunity because the Court cannot conclude that Defendants’ actions were objectively unreasonable or that Defendants would have clearly understood that their conduct violated a clearly-established right. In other words, Plaintiff has not shown that it was unreasonable for Defendants to conclude that Plaintiff’s conduct disturbed the “peace and quiet” of a public place, that Plaintiff was intoxicated in public, and that Plaintiff’s actions while publicly intoxicated caused a “public disturbance,” in violation of the public intoxication and disturbing-the-peace ordinances.
3. Malicious prosecution
Plaintiff contends that Defendants violated the Fourth and Fourteenth Amendments by maliciously issuing a disturbing-the-peace ticket that resulted in an improper prosecution. (Compl. ¶¶ 96, 99, 100; Dkt. No. 17, Pl.’s Resp. in Opp’n to Mot. to Dismiss ¶ 23.) Plaintiff’s malicious prosecution claim fails as a matter of law because probable cause existed for his arrest and imprisonment. See Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007) (noting that a Fourth Amendment malicious-prosecution claim pursuant to § 1983 “fails when there was probable cause to prosecute”). For the foregoing reasons, the Court will grant Defendants’ motion for summary judgment with respect to Plaintiff’s § 1983 claims.
C. State Law Claims
The remainder of Plaintiff’s claims are state law claims. The Court declines to exercise supplemental jurisdiction over the remaining state law claims in this matter. 18
U.S.C. § 1367(c)(3). Because this case was removed from state court, the best course is to remand the case to the state court from which it was removed. Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 583 (6th Cir. 2007). Therefore, the Court will remand the remainder of the claims in this case to the 35th Circuit Court in Ingham County, Michigan.
An order will be entered that is consistent with this opinion.
Dated: February 26, 2010
/s/ Robert Holmes Bell
ROBERT HOLMES BELL UNITED STATES DISTRICT COURT
Andrew Abood Represents Michigan State Football Player
Oren Wilson pleaded guilty Thursday to two counts of misdemeanor assault in connection with a November 22 fight.
Three MSU football players plead guilty in fight case
Lansing State Journal
February 26, 2010
EAST LANSING – The final three current or former Michigan State University football players charged in connection with a fight last year at MSU’s Rather Hall pleaded guilty Thursday.
Junior defensive tackle Oren Wilson, junior defensive back Chris L. Rucker and freshman receiver Myles White all admitted to having roles in the Nov. 22 incident, which resulted in charges against 11 players.
Wilson pleaded guilty to two counts of assault, while a charge of conspiracy to commit assault was dropped. He is scheduled to be sentenced March 31.
Mock Trial Held at Abood Law Firm
The Abood Law Firm conducted a Mock Trial on behalf of its client. The outcome was very beneficial to our client. Several Abood Law Firm employees participated in the event. Carrie Cousino acted as the prosecuting attorney. Andrew Abood acted as council for the defense. Clinton Van Nocker acted as the Judge. Mark Gabrielse acted as the police offer on the scene of the alleged crime. Chas Van Nocker was one of the 12 jurors.
We would like to thank the jurors who deliberated the case. A special thanks also goes to those who prepared for their part as witnesses.
Deputies take liquor inspections too far at Superior Township party store, attorney claims
February 17, 2010
Washtenaw County sheriff’s deputies have recently conducted “warrantless searches and seizures” at The Party Store in Superior TownshipÂ while claiming they were part of liquor inspections, the store’s attorney alleges.
Attorney Jeffrey Lance Abood mailed a letter Tuesday to Sheriff Jerry Clayton and other officials to inform them of what he calls “blatant misconduct” by deputies.
According to the letter, the store’s owner, Ziad Abuziad, has been subject to “breathalyzers and body searches,” during which nothing illegal was found.
Andrew Abood Cross Examination of Witnesses in Peterson Hearing
Drew Peterson was distraught after discovering the death of Kathleen Savio. Follow this link to read more.
Drew Peterson Hearsay Hearings Enter Third Week
Andrew Abood enters his third week of the Hearsay Motion on behalf of the Abood Law Firm’s Client Drew Peterson. Please follow this video at:
Andrew P. Abood speaks at Thomas M. Cooley Law School on jury trials and the media
Roberta M. Gubbins
January 21, 2010
“There is really no one way to deal with the media,” said Andrew P. Abood, Lansing attorney and Cooley alumnus, who has represented high-profile clients in cases drawing national media coverage. “I see a lot of lawyers that say ‘no comment.’ I don’t agree with that.”
“There is always something positive to say. Our (the lawyer’s) job is not to advance our interests, but to advance our client’s interests. Sometimes you are the only person they have, and if you can say something positive, it means everything to them.”
Drew Peterson Hearsay Hearings
The Abood Law Firm was in the Will County Court for arguments regarding hearsay in the matter of the State of Illinois v Drew Peterson.
Andrew Abood was particularly effective in his cross examination of a Bollingbrook, Illinois Police Lieutenant. In the officer’s testimony, he stated that Drew Peterson had worked with him for over ten years. He also testified he had never seen Peterson angry or violent during his duties as an officer. He referred to Peterson as “Good Police Officer”.
Andrew Abood was accompanied at the hearing by Gina Sandy, and Clinton Van Nocker, both of the Abood Law Firm.
Abood Law Firm Law Clerk Mark Gabrielse
The Abood Law Firm would like to congratulate Mark Gabrielse, Law Clerk, for receiving all As on his Fall Semester Report Card!!!
Operating a Vehicle While Intoxicated
Andrew P. Abood appears on the Michael Patrick Shiels show and discusses the dangers of Operating a Vehicle While Intoxicated.
Michigan State Basketball, always a favorite topic of the Abood Law Firm, was also discussed.
High Profile Clients
LANSING ATTORNEY WHO REPRESENTS HIGH-PROFILE CLIENTS
SPEAKS ABOUT JURY TRIALS AND THE MEDIA AT COOLEY ON JAN. 14
Lansing attorney and Cooley alumnus Andrew P. Abood, who has represented high-profile clients in cases drawing national media coverage, will discuss Jury Trials and the Media at the Thomas M. Cooley Law School’s Lansing campus on Thursday, Jan. 14, 2009 at 5 p.m. in the Cooley Center, 300 S. Capitol Ave., room 911. Cooley students, faculty and staff as well as members of the legal community and the public are invited to attend this free event.
The event is part of the Integrity in Our Communities speaker series offered by Cooley’s Center for Ethics, Service and Professionalism, and features attorneys and judges sharing their experiences as legal professionals.
Abood, who works with his brother, Frederic “Joe” Abood, at the Abood Law Firm in Lansing, will share his experiences leading high-profile cases, the importance of clients’ representation in the media and offer advice on the best ways to work with media during jury trials. Abood will discuss some of the high-profile clients he has represented, including Drew Peterson of Will County, Ill., a former police sergeant who was accused of killing his third wife, and Lisa Holland of Williamston, Mich., who was accused along with her husband, Tim Holland, of murdering their 7-year-old adopted son, Ricky Holland, who was at first reported as a missing child.
For event information, contact Heather Spielmaker, director of Cooley’s Center for Ethics, Service, and Professionalism at (517) 371-5140, ext. 4112 or by email at SPIELMAH@COOLEY.EDU.
Cooley Law School is the largest law school in the nation. Founded in 1972, the private, non-profit law school operates J.D. programs across Michigan in Lansing, Auburn Hills, Grand Rapids and Ann Arbor. Today, Cooley Law School has nearly 14,000 graduates across the nation and worldwide and also offers joint degree and master of laws programs. Cooley offers enrollment three times a year; in January, May and September. Additional information about Cooley can be found at cooley.edu.
Abood Law Firm is representing a client today in Grand Rapids, Michigan in Kent County on a Domestic Relations matter.