DELSHONE MAJORS V OFFICER LAVON HOWELL
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STATE OF MICHIGAN
COURT OF APPEALS
DELSHONE MAJORS, a Personal Representative
of the Estate of DAVID EUGENE MAJORS,
UNPUBLISHED
May 6, 2010
Plaintiff-Appellee,
v
No. 289972
Wayne Circuit Court
LC No. 07-710697-NO
OFFICER LAVON HOWELL,
Defendant,
and
TROOPER RICHARD FELL, TROOPER JAMES
GRADY, and TROOPER TIMOTHY RAJALA
Defendants-Appellants.
Before: BANDSTRA, P.J., and BORRELLO and SHAPIRO, JJ.
BANDSTRA, P.J., (dissenting).
I respectfully dissent from the conclusion that a genuine issue of material fact was
presented as to whether the cab driver had a gun. I agree with my colleagues’ view that the
testimony of Officer Ball and Trooper Jeffries does not suffice to sustain plaintiff’s case in this
regard. However, I disagree with their conclusion that the affidavit of the lay witness is
sufficient to create a genuine issue of material fact.
Even though that affidavit was made many years after the incident giving rise to this
lawsuit, it was properly considered by the trial court because, as my colleagues reason, it did not
directly contradict the lay witness’s statement to police immediately after the incident. However,
the affidavit apparently quite carefully only states that the lay witness would have seen the cab
driver with a gun if the driver “actually held or pointed a gun or other object to his head.” While
somewhat relevant, that has nothing to do with the more crucial fact at issue, whether the cab
driver pointed a gun or guns at the officers and thus provoked the use of deadly force. As the
trial court here noted, there were a “vast number of witnesses” stating directly that the cab driver
did have weaponry and used it in that fashion. No reasonable fact-finder could conclude, simply
on the basis of the ambivalent and late affidavit of the lay witness, that the officers and troopers
here colluded together to plant evidence that a gun was present in the cab and lie about what they
saw.
-1-
I would reverse and remand this case for entry of an order granting summary disposition
to defendants.
/s/ Richard A. Bandstra
-2-
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