DOUGLAS MOORE V DETROIT ENTERTAINMENT LLC
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STATE OF MICHIGAN
COURT OF APPEALS
DOUGLAS MOORE,
Plaintiff-Appellee/Cross-Appellant,
v
FOR PUBLICATION
May 27, 2008
9:05 a.m.
No. 275157
Wayne Circuit Court
LC No. 04-424554-NO
DETROIT ENTERTAINMENT, L.L.C., doing
business as MOTOR CITY CASINO,
Defendant-Appellant/CrossAppellee,
Advance Sheets Version
and
JOSE OSCAR MARTINEZ,
Defendant.
Before: O’Connell, P.J., and Borrello and Gleicher, JJ.
GLEICHER, J.
Plaintiff commenced this action alleging multiple state-law intentional torts and a
violation of 42 USC 1983 after Detroit Entertainment, L.L.C., doing business as Motor City
Casino,1 through several casino employees, denied plaintiff entry into the casino, thereafter
detained him inside the casino, and ultimately banned him permanently from the casino.
Defendant appeals as of right, challenging various aspects of a final judgment entered by the trial
court after a jury trial, at the conclusion of which the jury returned a special verdict in plaintiff’s
favor. Plaintiff cross-appeals, contesting the trial court’s pretrial order granting summary
disposition of his abuse-of-process and malicious-prosecution claims. We affirm.
1
The singular “defendant” in this opinion hereinafter refers to defendant-appellant Detroit
Entertainment.
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I. Underlying Facts and Proceedings
Plaintiff and five companions traveled to the Motor City Casino on the evening of
September 14, 2002, to take advantage of a complimentary meal and to gamble. When the
group’s Metro car arrived at the casino’s valet entrance, some members of the group, including
plaintiff, held cups containing alcoholic beverages, but disposed of the cups when advised that
they could not enter the casino with them. Much trial testimony disputed whether (1) plaintiff
stumbled while alighting from the group’s Metro car and approaching the valet lobby, (2)
plaintiff’s speech was slurred, (3) plaintiff’s eyes appeared glassy, or (4) plaintiff’s breath
smelled of alcohol.
There is no dispute, however, that in the valet lobby, defendant Jose Oscar Martinez, a
casino security manager who had obtained “PA 330 certification” under MCL 338.1079,2 barred
plaintiff’s entry on the basis that he appeared inebriated and thus constituted a potential liability
to the casino. Plaintiff and some of his companions expressed disbelief, denied that plaintiff was
intoxicated, and asked to speak with a manager. But the evidence diverged concerning the extent
of plaintiff’s physical reaction to Martinez’s announcement: some testimony described that
while protesting his exclusion and demanding a manager, plaintiff may have made “nonchalant”
gestures with his arm or hand, although this testimony varied regarding plaintiff’s proximity to
Martinez at the time of the gestures, while other testimony recounted that plaintiff seemed to
have intentionally pointed a finger or directed an open hand that made contact with Martinez’s
chest. Many witnesses recalled seeing Martinez step backward.3
Other nearby casino security personnel announced that an assault had occurred, which
prompted plaintiff and his companions to depart from the valet lobby and walk across the street.
A group consisting of several casino security officers, at some point accompanied by two Detroit
police officers, eventually confronted plaintiff and his companions. Another PA 330-certified
casino security manager, John Grzadzinski, offered plaintiff the choice to either return to the
casino to discuss the alleged assault, or to place himself in the custody of the Detroit Police
Department. At trial, Grzadzinski replied affirmatively to plaintiff’s counsel’s inquiry whether
the Detroit police officers present likewise “suggested to [plaintiff] that he go back with
[Grzadzinski] into the casino, is that right?” Richard Novak, one of plaintiff’s companions and
his longtime business attorney, recounted at trial that after Grzadzinski announced the two
choices “loud enough for everybody to hear,” Novak spoke with the Detroit police officers
present in the group, and “asked the DPD” whether they agreed with Grzadzinski’s two
alternative proposals. According to Novak, the officers “said we don’t care, it’s your call.”
Plaintiff, who initially declined to return to the casino, ultimately elected, on Novak’s advice, to
allow himself to be escorted back to the casino’s security office.
2
The “PA 330” shorthand refers to 1968 PA 330, which enacted the current Private Security
Business and Security Alarm Act. MCL 338.1051 et seq.
3
Martinez immediately underwent examination by an emergency medical technician, who
detected no obvious signs of injury. Martinez did not seek additional medical attention.
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In a detention room, pursuant to casino policies and applicable administrative rules,
plaintiff underwent a pat-down search and the removal and inventory of his personal property,
before being left alone in the locked detention room. At plaintiff’s request, someone later
escorted him to a bathroom. On returning to the detention room, against plaintiff’s expressed
wishes, security personnel locked him back inside the detention room. Ultimately, Grzadzinski
obtained plaintiff’s signature on an “86 form” permanently banning him from the casino,
although Grzadzinski denied plaintiff’s requests that Novak review the form or that plaintiff
receive a copy of the form.
The trial evidence established that plaintiff’s detention period was about 2-1/2 hours.
Plaintiff then left the Motor City Casino with his companions, and everyone went to the
Greektown Casino.
In May 2003, a Wayne County Sheriff’s deputy arrested plaintiff at Detroit Metropolitan
Airport when he learned plaintiff had outstanding assault and battery warrants arising from the
September 14, 2002, incident at the Motor City Casino. The criminal proceedings against
plaintiff were temporarily terminated in September 2003, when the 36th District Court dismissed
the charge without prejudice because no prosecution witnesses appeared. Sometime in 2005,
plaintiff discovered the existence of resurrected arrest warrants relating to September 14, 2002.
After a December 2005 trial in the 36th District Court, a jury acquitted plaintiff.4
II. Challenges to 42 USC 1983 Special Verdict
Defendant first contends that the trial court erred by denying its motion for a directed
verdict regarding plaintiff’s § 1983 claim. Defendant specifically challenges the trial court’s
ruling as a matter of law that the casino, through the conduct of its PA 330-certified security
officers, acted under color of state law during the September 14, 2002, detention of plaintiff.
A
This Court reviews de novo a trial court’s ruling on a litigant’s motion for a directed
verdict. Candelaria v B C Gen Contractors, Inc, 236 Mich App 67, 71; 600 NW2d 348 (1999).
In reviewing the trial court’s ruling, this Court examines the evidence presented and all
legitimate inferences arising therefrom in the light most favorable to the nonmoving party. Farm
Credit Services of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662, 668; 591 NW2d
438 (1998). “A directed verdict is appropriate only when no material factual question exists
upon which reasonable minds could differ.” Candelaria, supra at 71-72. “If reasonable jurors
could honestly have reached different conclusions, neither the trial court nor this Court may
substitute its judgment for that of the jury.” Hunt v Freeman, 217 Mich App 92, 99; 550 NW2d
817 (1996). The “appellate court recognizes the jury’s and the judge’s unique opportunity to
observe the witnesses, as well as the factfinder’s responsibility to determine the credibility and
4
Plaintiff commenced this action in 2004, between the two 36th District Court criminal
proceedings.
-3-
weight of trial testimony.” Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App
190, 195; 555 NW2d 733 (1996).
B
According to 42 USC 1983, any person who experiences “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws” because of the actions of another
person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State”
may file an action seeking relief against the party that caused the deprivation. (Emphasis added.)
The dispute in this appeal focuses on the “under color of” state law element of a § 1983 claim.
The United States Court of Appeals for the Sixth Circuit recently examined, in relevant
part as follows, the contours of the requisite state-action element:
The issue in this appeal is whether Plaintiffs can demonstrate that
Defendant acted “under color of state law” by showing that Defendant’s conduct
constituted state action. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 942, 102
S. Ct. 2744; 73 L. Ed. 2d 482 (1982) . . . . Section 1983 does not, as a general
rule, prohibit the conduct of private parties acting in their individual
capacities. . . . However, “[a] private actor acts under color of state law when its
conduct is ‘fairly attributable to the state.’” Romanski [v Detroit Entertainment,
LLC, 428 F3d 629, 636 (CA 6, 2005)] (quoting Lugar [supra at 937]).
“What [conduct] is fairly attributable [to the state] is a matter of normative
judgment, and the criteria lack rigid simplicity.” Brentwood [Academy v
Tennessee Secondary School Athletic Ass’n, 531 US 288, 295; 121 S Ct 924; 148
L Ed 2d 807 (2001)]. The Supreme Court and this Court, however, have provided
several significant milestones to guide our inquiry as to whether Defendant’s
conduct constitutes state action. As we recognized in Chapman [v Higbee Co,
319 F3d 825, 833 (CA 6, 2003),] “[t]he Supreme Court has developed three tests
for determining the existence of state action in a particular case: (1) the public
function test, (2) the state compulsion test, and (3) the symbiotic relationship or
nexus test.” Of these three tests, the only one relevant to the instant case is the
public function test. Under the public function test, courts have found “state
action present in the exercise by a private entity of powers traditionally
exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345,
352; 95 S. Ct. 449; 42 L. Ed. 2d 477 (1974). The Supreme Court has found this
requirement satisfied where the state permitted a private entity to hold elections,
allowed a private company to own a town, or established private ownership of a
municipal park. However, the Supreme Court has explicitly declined to decide
the question of “whether and under what circumstances private police officers
may be said to perform a public function for purposes of § 1983.” Romanski, 428
F.3d at 636. [Lindsey v Detroit Entertainment, LLC, 484 F3d 824, 827-828 (CA
6, 2007) (some citations omitted).]
C
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The trial court in this case invoked Romanski, supra, when finding that Martinez,
Grzadzinski, and other casino security personnel acted under color of state law in detaining
plaintiff. Because the parties argue at length concerning the propriety of the trial court’s
application of Romanski, we now turn to a careful examination of Romanski.
Romanski involved a casino patron’s claim against the instant defendant. In Romanski,
the plaintiff, age 72, “took a walk around the gaming floor,” during which she “noticed a five
cent token lying in a slot machine’s tray. Seeing no chair at the machine, she picked up the
token and returned to the machine at which she had earlier played, intending to use the token
there.” Romanski, supra at 632. Several casino security officers descended on the plaintiff and
advised her that the casino had a “policy not to permit patrons to pick up tokens, which appeared
to be abandoned, found at other slot machines, a practice known as ‘slot-walking,’” despite the
fact that the casino had not posted notice of such a policy. Id. at 633. One defendant security
officer, Marlene Brown, recalled that because Romanski “became loud and belligerent,” several
security personnel escorted her to the casino’s “small and windowless” security office “located
off the casino’s floor.” Id. at 633.
According to Romanski, once they had taken their seats, Brown accused
Romanski of stealing the token, whereupon Brown counted Romanski’s money
and removed one nickel from Romanski’s winnings. [Brown’s supervisor JoEtta]
Stevenson asked Romanski to turn over her social security card and driver’s
license; Romanski complied and these items were photocopied. Romanski was
then photographed. Romanski testified that she acquiesced to these requests
because Brown said she was a police officer, had a badge, and appeared to have
handcuffs. . . . [A] uniformed casino security officer stood just outside the room
for the duration of the questioning.
Romanski was ejected from the casino for a period of 6 months; Stevenson
made the final decision to eject, or “86,” Romanski. . . . Although unknown to
Romanski at the time, it is now undisputed that Brown and some of her colleagues
on the casino’s security staff were licensed under state law as “private security
police officer[s].” [MCL 338.1079].[5] By virtue of being so licensed, a private
5
In its entirety, MCL 338.1079 provides as follows:
(1) The licensure of private security police shall be administered by the
department of state police. The application, qualification, and enforcement
provisions under this act apply to private security police except that the
administration of those provisions shall be performed by, and the payment of the
appropriate fees shall be paid to, the department of state police. The director of
the department may jointly promulgate rules with the department of state police
under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328, to facilitate the bifurcation of authority described in this subsection.
(continued…)
-5-
security police officer has “the authority to arrest a person without a warrant as set
forth for public peace officers . . . when that private security police officer is on
the employer’s premises.” [MCL 338.1080].[6] The statute additionally requires
that private security police officers make arrests only when they are on duty and
in “the full uniform of their employer.” Id. It is undisputed that Brown was on
duty during the events of this case. It is also undisputed that Brown was not
wearing the uniform worn by some of the other security guards, but Defendants
have never contended that this rendered Brown out of uniform for purposes of
[MCL 338.1080]; indeed, Defendants have conceded from the beginning that the
statute applies in this case. Their argument is simply that the power admittedly
conferred on Brown by the statute did not make her actions under color of state
law. See 42 U.S.C. 1983. [Romanski, supra at 633 (emphasis added).]
The plaintiff filed an amended complaint that contained several state-law tort claims and “a
claim under 42 U.S.C. § 1983 that Defendants had violated Romanski’s Fourth Amendment
rights,” specifically “that Defendants, acting under color of state law, had arrested her without
probable cause because the token she picked up was abandoned, i.e., not the casino’s property.”
Romanski, supra at 634.
When the defendants sought summary judgment of Romanski’s § 1983 claim on the basis
that they had not acted under color of state law, the district court denied the motion, holding “as
(…continued)
(2) This act does not require licensing of any private security guards
employed for the purpose of protecting the property and employees of their
employer and generally maintaining security for their employer. However, any
person, firm, limited liability company, business organization, educational
institution, or corporation maintaining a private security police organization may
voluntarily apply for licensure under this act. When a private security police
employer as described in this section provides the employee with a pistol for the
purpose of protecting the property of the employer, the pistol shall be considered
the property of the employer and the employer shall retain custody of the pistol,
except during the actual working hours of the employee. All such private security
people shall be subject to the provisions of sections 17(1) and 19(1).
6
In its entirety, MCL 338.1080 provides as follows:
A private security police officer, as described in section 29, who is
properly licensed under this act has the authority to arrest a person without a
warrant as set forth for public peace officers in section 15 of chapter IV of the
code of criminal procedure, 1927 PA 175, MCL 764.15, when that private
security police officer is on the employer’s premises. Such authority is limited to
his or her hours of employment as a private security police officer and does not
extend beyond the boundaries of the property of the employer and while the
private security police officer is in the full uniform of the employer.
-6-
a matter of law that Defendants had acted under color of state law . . . because Brown, the
defendant who initiated Romanski’s detention, did so while on duty in her capacity as a licensed
private security police officer empowered with the same arrest authority as a public police
officer.” Romanski, supra at 635. A jury found in the plaintiff’s favor regarding her § 1983
claim that the defendants violated her Fourth Amendment rights, and consequently awarded
“$500 in punitive damages against Brown, and $875,000 in punitive damages against the
casino.” Id. The district court denied a motion for a judgment notwithstanding the verdict, and
the defendants appealed. Id. at 635-636.
The Sixth Circuit affirmed in Romanski, rejecting the defendants’ contention that they did
not qualify as state actors. The Sixth Circuit commenced its analysis by surveying federal
caselaw that had considered whether private security officers acted under color of state law,
including Payton v Rush-Presbyterian-St Luke’s Med Ctr, 184 F3d 623, 627-630 (CA 7, 1999),
in which “the Seventh Circuit held that private police officers licensed to make arrests could be
state actors under the public function test.” Romanski, supra at 637. In discussion highly
relevant to the instant case, the Sixth Circuit ascertained and applied the following guiding
principles:
[T]he crucial fact in [Payton]—assumed to be true there but indisputable
here—was that by virtue of their status as on-duty special police officers, licensed
by the city of Chicago, the defendants enjoyed “virtually the same power as
public police officers.” Id. at 629. Indeed, the defendants in Payton operated
under an ordinance which provided that special police officers licensed under it
“shall possess the powers of the regular police patrol at the places for which they
are respectively appointed or in the line of duty for which they are engaged.” Id.
at 625.
***
Payton illustrates a line that has been drawn in the case law. The line
divides cases in which a private actor exercises a power traditionally reserved to
the state, but not exclusively reserved to it, e.g., the common law shopkeeper’s
privilege, from cases in which a private actor exercises a power exclusively
reserved to the state, e.g., the police power. Where private security guards are
endowed by law with plenary police powers such that they are de facto police
officers, they may qualify as state actors under the public function test. . . . The
rationale of these cases is that when the state delegates a power traditionally
reserved to it alone—the police power—to private actors in order that they may
provide police services to institutions that need it, a “plaintiff’s ability to claim
relief under § 1983 [for abuses of that power] should be unaffected.” Payton
[supra at 629].
On the other side of the line illustrated by Payton are cases in which the
private defendants have some police-like powers but not plenary police
authority. . . . A subset of these cases are cases in which a private institution’s
security employees have been dispatched to protect the institution’s interests or
enforce its policies. The canonical example here is when a store avails itself of
the common law shopkeeper’s privilege . . . .
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Like the district court, we think this case falls on the Payton side of the
line. It is undisputed that Brown (and some of her colleagues) were private
security police officers licensed under [MCL 338.1079]. This means that
Brown’s qualifications for being so licensed were vetted by Michigan’s
department of state police, id. § (1), and that Brown was subject to certain statutes
administered by that department. Id. § (2); see [MCL 338.1067, MCL 338.1069].
More critical for present purposes are the undisputed facts that Brown was on
duty and on the casino’s premises at all times relevant to this case. These
undisputed facts lead to an inescapable conclusion of law—namely, that at all
times relevant to this case, Brown “had the authority to arrest a person without a
warrant as set forth for public peace officers . . . .” [MCL 338.1080]. One
consequence of Brown’s possession of this authority, the authority to make arrests
at one’s discretion and for any offenses, is clear: at all times relevant to this
case, Brown was a state actor as a matter of law.
Unlike the common law privileges at issue in Wade [v Byles, 83 F3d 902
(CA 7, 1996)] (the use of deadly force in self-defense, the right to detain for
trespass, and the right to carry a weapon) and Chapman [supra at 825] (the
shopkeeper’s privilege), which may be invoked by any citizen under appropriate
circumstances, the plenary arrest power enjoyed by private security police officers
licensed pursuant to [MCL 338.1079] is a power traditionally reserved to the state
alone. . . .
Defendants contend that Wade ought to control here because, as in that
case, private security police officers’ power to make arrests is subject to spatial or
geographic limits. See [MCL 338.1080]. But the spatial or geographic limitation
in Wade was profound—it prohibited housing authority security guards from
exercising their (already minimal) powers anywhere except in the lobbies of
buildings operated by the housing authority. See Wade [supra at 906]. By
contrast, [MCL 338.1080] invests private security police officers with full arrest
authority on the entirety of their employer’s premises, which makes this case
distinguishable from Wade and similar to Payton and Henderson [v Fisher, 631
F2d 1115 (CA 3, 1980)], each of which involved a statute or ordinance that
imposed or contemplated some spatial or geographic limits on the private
defendants’ police powers. See Payton [supra at 625] (special police officers
“shall possess the powers of the regular police patrol at the places for which they
are respectively appointed”) (emphasis added) . . . ; Henderson [supra at 1117
1119] (authority of the university police was limited to the university campus in
question). Furthermore, as we have discussed, private security police officers in
Michigan are endowed with plenary arrest authority, see [MCL 338.1080], while
the defendant in Wade was permitted to exercise only what were in effect
citizens’ arrests. [Romanski, supra at 637-639 (emphasis added; some citations
omitted).]
D
The Sixth Circuit subsequently addressed § 1983 claims filed by several plaintiffs who
underwent similar detentions by Motor City Casino security personnel in Lindsey, supra at 826.
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The Lindsey court did not question or criticize the legal principles espoused or the conclusion
reached by the court in Romanski, which it reviewed in detail. Lindsey, supra at 828-831. The
Sixth Circuit held, however, that the defendants in Lindsey had not acted under color of state
law, citing the following factual distinction:
Plaintiffs argue that Romanski supports a finding that Defendant’s security
personnel were likewise state actors in this case. We disagree. Unlike Romanski,
where it was undisputed that Defendant’s security personnel were licensed under
[MCL 338.1079], here, exactly the opposite appears to be the case. Plaintiffs’
complaint alleges that: “At the time of the seizure[s] and detention[s] . . . , none
of [Defendant’s] security guards were authorized to make misdemeanor
arrests. . . .”
If Defendant’s security personnel had in fact been licensed pursuant to
[MCL 338.1079], they would have had misdemeanor arrest authority at the time
that they seized and detained Plaintiffs. Hence, Plaintiffs’ allegation that
Defendant’s security personnel lacked such authority is by implication an
assertion that Defendant’s security personnel were not licensed under [MCL
338.1079]. Moreover, at oral argument, Plaintiffs were asked to point the Court
to any information in the record that suggested that Defendant’s security
personnel were licensed pursuant to [MCL 338.1079] at the time of Plaintiffs’
arrests, and Plaintiffs could point to no such information. Plaintiffs have
therefore not carried their burden of demonstrating that any of Defendant’s
security guards were licensed under [MCL 338.1079], and we must proceed
under the assumption that all of Defendant’s security personnel who interfaced
with Plaintiffs were not so licensed.
The fact that Defendant’s security personnel were not licensed in this case
means that, under the facts of this case, Defendant’s conduct in detaining
Plaintiffs was not “fairly attributable to the state.” . . .
***
This analysis [in Romanski] demonstrates that the fact that Michigan
delegated a part of the police power to licensed private security guards, which it
had traditionally and exclusively reserved for itself, was the key fact that justified
finding state action in Romanski. Although the police power that Michigan
bestowed upon licensed security guards pursuant to [MCL 338.1080] was limited
in certain respects, the plaintiff in Romanski could point to an identifiable police
power—the power of arrest—which was not possessed by the citizens of
Michigan at large, but instead resided only in the state, its agents, and those
persons who the state empowered and regulated by statute. By contrast, Plaintiffs
here cannot point to any powers above and beyond those possessed by ordinary
citizens that the state of Michigan had delegated to Defendant’s unlicensed
security personnel at the time of Plaintiffs’ arrests. The instant case is thus
squarely within the rule of Chapman, where this Court held that a merchant
exercising the “shopkeeper’s privilege” was not a state actor under the public
function test. [Chapman, supra at 834]. Because Plaintiffs cannot demonstrate
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that Defendant’s security personnel were licensed under [MCL 338.1079], they
cannot show that Defendant engaged in action attributable to the state. Plaintiffs
therefore cannot demonstrate that Defendant deprived them of their rights secured
by the Constitution by acting under color of state law, and their § 1983 claim must
fail. [Lindsey, supra at 829-831 (emphasis added; some citations omitted).]
E
After reviewing the record in this case, we find that it falls squarely within the facts and
legal analysis presented in Romanski, which properly concluded as a matter of law that the state
licensed private security officers involved in the casino detention acted under color of state law.
Here, the parties do not dispute that at the time of plaintiff’s detention on September 14, 2002,
Martinez, security manager Chenine McDowell, and Grzadzinski had obtained certification
pursuant to MCL 338.1079. During trial, Martinez, McDowell, and Grzadzinski elaborated on
the training they had received, under the tutelage of a Detroit police officer and through the
Michigan State Police, to obtain their statutory certifications, which they understood to invest
them with the authority to make certain arrests inside the casino. Because the record
indisputably establishes that Martinez and others involved in plaintiff’s detention on September
14, 2002, primarily Grzadzinski and McDowell, had obtained state licensure pursuant to MCL
338.1079, and, consequently, pursuant to MCL 338.1080, Martinez, Grzadzinski, and McDowell
all possessed the power to arrest plaintiff on casino premises for his alleged assault (“a part of
the police power” that the state “had traditionally and exclusively reserved for itself,” Lindsey,
supra at 831, citing Romanski, supra at 637), and Martinez, Grzadzinski, and McDowell
arranged for plaintiff to be held within the casino’s security detention room on the basis of this
statutory authority, we conclude that the trial court correctly ruled as a matter of law that
defendant, through Martinez, Grzadzinski, and McDowell, acted under color of state law for
purposes of § 1983.
We stress that ours is decidedly a fact-specific holding, in accordance with the United
States Supreme Court’s observations in Lugar, supra at 939, that the state-action inquiry is
“necessarily fact-bound,” and that a court’s approach to the inquiry must be closely tailored to
the evidence before it. We further emphasize that our holding is entirely inconsistent with the
notions that licensed, private security guards are always state-actors, or that the mere
performance of a task specifically authorized by a state statute confers state actor status.
Contrary to the dissent’s hyperbolic and dire prophesy, Michigan’s day-care providers, plumbers,
barbers, beauticians, electricians, and cab drivers need not fear an onslaught of litigation
triggered by our ruling today. Those licensed professionals obviously do not qualify as state
actors because they do not exercise powers “traditionally exclusively reserved to the State.”
Jackson, supra at 352. No portion of our opinion conflicts with the oft-repeated principle, first
articulated in Jackson, that “[t]he mere fact that a business is subject to state regulation does not
by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Id.
at 350.
In the instant case, the casino’s employees arrested and detained a casino customer
because they suspected that he had committed an assault and battery. Those employees’ ability
to arrest plaintiff derived solely from their special state licensure. Officers of the Detroit Police
Department expressly approved the casino employees’ actions. These facts conclusively
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demonstrate that the casino’s employees exercised powers “traditionally exclusively reserved to
the state,” and did so with the encouragement and approbation of the state itself.
Indeed, the record of state action here far exceeds the state action involved in Romanski.
Here, licensed security guards effectuated an arrest to investigate a violent crime, while Mrs.
Romanski’s detention arose from a suspected larceny. The power to arrest and detain a
larcenous customer does not rest exclusively with the state of Michigan, but resides in all
Michigan security guards by virtue of MCL 338.1079(2). Furthermore, the city police officers
here watched and helped direct the security personnel’s decision to take plaintiff into custody,
while the security personnel in Romanski acted in the absence of any police presence. We
therefore reject as completely unfounded the dissent’s suggestion that our decision unreasonably
expands state-action concepts.
Although defendant urges that we reject Romanski as a nonbinding intermediate federal
appellate court decision, this Court plainly may adopt as persuasive a “lower federal court
decision[]” involving federal law. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d
325 (2004). Furthermore, as noted, we view the similar relevant facts and applicable legal
analysis in Romanski as persuasive in this case, and defendant has not identified, and we have
not located, any United States Supreme Court decision casting doubt on the state-actor
conclusion in Romanski. The Supreme Court declined to consider the holding in Romanski,
denying certiorari at ___ US ___; 127 S Ct 209; 166 L Ed 2d 257 (2006).
F
We additionally note that the United States Supreme Court has provided a succinct
principle to aid in the analysis of the state-action requirement in § 1983 cases, which we view as
instructive to our state-action conclusion in this case. “[I]n the usual case we ask whether the
State provided a mantle of authority that enhanced the power of the harm-causing individual
actor.” Nat’l Collegiate Athletic Ass’n v Tarkanian, 488 US 179, 192; 109 S Ct 454; 102 L Ed
2d 469 (1988). The instant record establishes indisputably that plaintiff’s detention within the
locked casino security room commenced immediately after a combined force of Detroit police
officers and casino security personnel confronted plaintiff, his attorney, and his other
companions as they attempted to leave the casino grounds. Both Grzadzinski and Richard
Novak testified that the Detroit police officers authorized, and indeed encouraged, defendant’s
security personnel to seize plaintiff and escort him back to the casino. This evidence strongly
supports our conclusion that the state “provided a mantle of authority” that constrained plaintiff
to subject himself to detention by defendant.
[T]o act “under color of” state law for § 1983 purposes does not require
that the defendant be an officer of the State. It is enough that he is a willful
participant in joint action with the State or its agents. Private persons, jointly
engaged with state officials in the challenged action, are acting “under color” of
law for purposes of § 1983 actions. [Dennis v Sparks, 449 US 24, 27-28; 101 S
Ct 183; 66 L Ed 2d 185 (1980).]
In Chapman, supra, at 835, the Sixth Circuit, sitting en banc, concluded that a customer’s
detention by a store security guard could qualify as an act “that may fairly be attributed to the
state.” The security guard, an off-duty, armed, uniformed sheriff’s deputy, initiated a strip
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search of the customer, and store policy mandated “police intervention in strip search
situations . . . .” Id. at 835. Utilizing the “symbiotic or nexus test,” the Sixth Circuit held that a
genuine issue of material fact existed “as to whether the security officer acted under ‘color of
state law’” when he initiated the search. Id. at 834-835. The Sixth Circuit explained that a
§ 1983 claimant could satisfy the symbiotic or nexus test by demonstrating “that there is a
sufficiently close nexus between the government and the private party’s conduct so that the
conduct may be fairly attributed to the state itself.” Chapman, supra. at 834.7
The testimony in the instant case established not only a close working relationship
between defendant’s security personnel and the Detroit police officers posted near the casino, but
a joint and cooperative effort to detain plaintiff either in a city jail cell or its casino equivalent.
We therefore hold, in conformity with the Chapman majority, that defendants’ joint engagement
with the Detroit police in the arrest and detention of plaintiff also satisfies the symbiotic
relationship or nexus test of action “under color of state law.”8
G
We do not find persuasive defendant’s suggestion that the “private detention” of plaintiff
could not constitute state action. According to this argument, defendant’s employees’ “conduct
in detaining, processing and eventually 86’ing Plaintiff, constituted, at most, an ‘arrest’ for
purposes of state civil liability,” and the jury’s rejection of plaintiff’s false arrest claim
eliminated defendant’s “state action” liability. In our view, this distinction lacks a meaningful
difference, particularly under the circumstances presented here. Defendant’s security personnel
restrained plaintiff’s freedom of movement because they believed he assaulted and battered
Martinez. Defendant’s employees’ entitlement to detain plaintiff—either momentarily or for two
hours and 15 minutes—derived directly from their state licensure. Their conduct, therefore,
qualified as state action, and deprived plaintiff of a right “secured by the Constitution.” See
Davis v Mississippi, 394 US 721, 726-727; 89 S Ct 1394; 22 L Ed 2d 676 (1969), in which the
7
See also Murray v Wal-Mart, Inc, 874 F2d 555, 558-559 (CA 8, 1989) (noting the general
proposition that a § 1983 plaintiff may obtain relief by demonstrating that a private party acted as
“a willful participant in joint activity with the State or its agents which activity deprived the
plaintiff of a constitutional right,” and the more specific principle that “state action is present
when private security guards and police officers act in concert to deprive a plaintiff of his civil
rights”) (internal quotation marks and citation omitted).
8
We cannot ignore the dissent’s characterization of our holding as “absurd,” post at ___, and
choose to observe simply that we have walked precisely the same decisional path as the Sixth
Circuit judges who decided Romanski and Chapman (an en banc panel), the Seventh Circuit
judges who decided Payton, supra, and the Eighth Circuit judges who decided Murray, supra.
In response to defendant’s protestation on appeal that in the trial court plaintiff never
proposed the symbiotic relationship or nexus test as a potential basis for finding state action, we
observe that we have the authority to consider this question of law for the first time on appeal
because all facts necessary for its resolution appear in the existing record. Royce v Chatwell
Club Apartments, 276 Mich App 389, 399; 740 NW2d 547 (2007), application for leave to
appeal held in abeyance 743 NW2d 213 (2008).
-12-
United States Supreme Court observed that “the Fourth Amendment was meant to prevent
wholesale intrusions upon the personal security of our citizenry, whether these intrusions be
termed ‘arrests’ or ‘investigatory detentions,’” and Dunaway v New York, 442 US 200, 216; 99 S
Ct 2248; 60 L Ed 2d 824 (1979) (observing that “detention for custodial interrogation—
regardless of its label—intrudes so severely on interests protected by the Fourth Amendment as
necessarily to trigger the traditional safeguards against illegal arrest”).
The trial testimony here shows that when plaintiff and his companions were surrounded
by casino security personnel and Detroit police officers, Grzadzinski offered plaintiff two
choices, go with the police or return to the casino security office to discuss the matter; at no time
was plaintiff advised he could simply continue his departure from casino property. Although
plaintiff’s testimony suggested that he returned to the casino voluntarily,9 other trial testimony
shows that after Grzadzinski escorted plaintiff to the casino detention room, plaintiff remained
there against his will for more than two hours. Under these circumstances, the jury reasonably
could have found a violation of § 1983.
The dissent also asserts that “[t]he security guards never exercised any power to arrest,”
ante at ___, and points to the jury’s verdict that “no false arrest occurred in this case.” Ante at
___ n 2. Although defendants did not falsely arrest plaintiff, the evidence demonstrates that he
was detained, placed into custody, and thereafter subjected to the will of defendant’s security
personnel. In People v Gonzales, 356 Mich 247, 253; 97 NW2d 16 (1959), our Supreme Court
adopted the following definition of “arrest”:
An arrest is the taking, seizing, or detaining of the person of another,
either by touching or putting hands on him, or by any act which indicates an
intention to take him into custody and subjects the person arrested to the actual
control and will of the person making the arrest. The act relied upon as
constituting an arrest must have been performed with the intent to effect an arrest
and must have been so understood by the party arrest. [Internal quotation marks
and citation omitted.]
The jury’s rejection of plaintiff’s false-arrest claim does not alter the fact that defendant’s
security officers restricted plaintiff’s freedom of movement during the two hours and 15 minutes
of his detention,10 and did so on the basis of the authority provided by MCL 338.1080 to the
security officers. The dissent has identified no basis other than MCL 338.1080 that would have
permitted plaintiff’s arrest and detention, and we are unaware of any. The licensing statute
9
Even if plaintiff initially consented to a form of administrative reprimand or casino exclusion
process, the evidence of record clearly demonstrates that his detention ceased to be consensual
when he requested that the door not be locked and that his attorney be summoned.
10
Michigan’s regulations governing casinos permit them to physically detain persons “suspected
of criminal activity” and to secure such persons “in [a] temporary holding area for purposes of
detention or arrest . . . .” Mich Admin Code, R 432.11003(1), (3). The regulations further
provide, “As a general rule, a person shall not be detained in a temporary holding area awaiting
transport for more than 2 hours.” Mich Admin Code, R 432.11003(4).
-13-
provided the mantel of authority for defendant’s security personnel, and imbued them with
virtually the same powers as the Detroit police officers who explicitly approved defendants’
decision to escort plaintiff back to the casino.
H
We also find unpersuasive defendant’s related suggestion that no state action existed here
because, although several of its officers had certification under MCL 338.1079 and the authority
to arrest pursuant to MCL 338.1080, they routinely did not employ their authority to arrest
casino patrons. We agree with the following portion of Romanski, in which the Sixth Circuit
rejected this precise contention:
Finally, we address Defendants’ repeated representation that, although
empowered to make arrests under [MCL 338.1080], Brown and the other casino
employees licensed under the statute are, as a matter of casino policy, not
permitted to exercise this statutory authority to effectuate arrests. For this
argument Defendants again rely on Wade, in which the very document that was
the source of the defendant’s police-type powers, his contract with the public
housing authority, at the same time imposed profound limits on those powers.
See Wade [supra at 905-906]. Here the source of Brown’s power to make arrests
is a statute that includes no qualitative limits on that power, so Wade is
inapplicable. Defendants do not cite a case in which a private security officer
licensed to make arrests as under [MCL 338.1080] was held not to be a state actor
on the ground that the officer’s employer substantially circumscribed the arrest
power conferred on the officer by having been licensed. [Romanski, supra at 639
640.]
I
We additionally reject that Grand Rapids v Impens, 414 Mich 667; 327 NW2d 278
(1982), on which defendant and the dissent rely heavily, controls the state-actor analysis in this
case. In Impens, the Michigan Supreme Court considered “whether a signed statement procured
by private security guards, one of whom was an off-duty deputy sheriff, may be admitted into
evidence against a defendant even though no Miranda warnings were given.” Id. at 670 (citation
omitted). The Supreme Court surveyed several decisions holding “that private security guards
who receive direct assistance from public police officers or who work in close connection with
the police may be acting under color of state law, subject to constitutional restrictions.” Id. at
674. The Supreme Court concluded, in relevant part, as follows:
We do not believe that the activities of the store security guards and the
city police in this case demonstrated the coordinated effort necessary to constitute
state action. The Meijer security personnel were working with the view of
furthering their employer’s interest only; they were not acting as police agents.
Their role may be viewed as an extension of the common-law shopkeepers’
privilege to detain for a reasonable period of time a person suspected of theft or
failure to pay. There was no complicity with the police department or any
indication that their acts were instigated or motivated by the police.
-14-
***
Defendant also contends that Meijer security personnel qualified as law
enforcement officers because state action has granted them greater authority than
that possessed by private citizens. . . . [D]efendant believes that the licensing
statutes which regulate private security guards demonstrate the requisite degree of
state action to bring their activities under color of state law, subject to
constitutional restraints. See MCL 338.1051 et seq. . . . . We disagree. We do
not believe that the mere licensing of security guards constitutes sufficient
government involvement to require the giving of Miranda warnings. . . .
***
Our statute specifically states that “private security police employed for
the purpose for guarding the property and employees of their employer and
generally maintaining plant security for their employer” need not be licensed.
MCL 338.1079. . . . This language speaks to the exact function performed by
Meijer’s security personnel. We do not believe that qualification for such
licensing exclusion equates the actions of private security guards with those of
law enforcement officers. [Impens, supra at 675-677 (citation omitted).]
The Supreme Court did not elaborate regarding whether the defendant security officers had
obtained state licensing, thus investing them with the authority to make arrests pursuant to MCL
338.1080. The Supreme Court made no reference whatsoever to MCL 338.1080.
As reflected in the following portion of Romanski, which we also find persuasive, the
Sixth Circuit likewise considered the effect of the Michigan Supreme Court’s decision in Impens
on the question of state action in the context of a § 1983 action:
The dissent’s repeated reliance on City of Grand Rapids v. Impens . . . is
misplaced. There, private security officers suspected the defendant and two
others of shoplifting. Id. at 279. The officers asked the three individuals to come
to the security office. Id. The officers searched the three and found merchandise
on one of the other individuals. Id. The officers then elicited information from
the defendant to complete a “Loss Prevention Department Voluntary Statement.”
Id. The officers read the statement to the defendant and asked the defendant to
sign it, which he did. Id. “There was no indication that defendant would not be
released if the statement were not signed.” Id. Prior to his trial, the defendant
moved to suppress the signed statement, arguing that it was obtained in violation
of Miranda. Id. The Michigan Court held that the private security officers were
not required to give Miranda warnings. Id. at 282.
One obvious distinction between the instant case and Impens is that
Impens did not involve an arrest in any form. There, the defendant was not held
against his will. He was asked to go to the security office; he was asked to sign a
form. There was no indication of arrest.
-15-
The key distinction, however, is that the security officers did not exercise
power exclusively reserved to the states. The contested conduct was the security
officers’ elicitation of the defendant’s statements. Simply put, asking questions in
a non-custodial setting is a power not within the exclusive province of the state.
[Romanski, supra at 638 n 2 (some emphasis added).]
The dissent asserts that Impens should control the outcome of this case because it held
that “the simple fact of licensure would not transform a private security guard into a state actor.”
Post at ___. As we have emphasized, however, “the simple fact of licensure” did not
“transform” defendant’s security guards into state actors. Rather, their licensure triggered the
security guards’ exercise of a power traditionally and exclusively reserved to the state. And
unlike the security guards in Impens, defendant’s secrurity personnel here employed a
“coordinated effort” with police officers, thus unquestionably acting as “police agents.” These
distinctions are not “immaterial,” as the dissent claims, post at ___, but central to the Impens
decision, at least according to the justices who wrote and joined that opinion.
We conclude that, irrespective of whether the trial court may have employed incorrect
logic, the court correctly distinguished Impens from the instant case. Coates v Bastian Bros, Inc,
276 Mich App 498, 508-509; 741 NW2d 539 (2007) (observing that this Court “will not reverse
if the right result is reached, albeit for the wrong reason”).
J
Defendant alternatively maintains that the trial court should have ordered a new trial, in
light of the defective jury instructions concerning plaintiff’s § 1983 claim. This Court reviews
for an abuse of discretion a trial court’s ultimate decision whether to grant a new trial, but
considers “de novo any questions of law that arise.” Kelly v Builders Square, Inc, 465 Mich 29,
34; 632 NW2d 912 (2001).
This Court reviews claims of instructional error de novo. MCR
2.516(D)(2) states that the trial court must give a jury instruction if a party
requests such instruction and it is applicable to the case. We review for abuse of
discretion the trial court’s determination whether a standard jury instruction is
applicable and accurate. The trial court’s jury instructions must include all the
elements of the plaintiffs’ claims and should not omit any material issues,
defenses, or theories of the parties that the evidence supports. . . . If, on balance,
the theories of the parties and the applicable law are adequately and fairly
presented to the jury, no error requiring reversal occurs. Reversal based on
instructional error is only required where the failure to reverse would be
inconsistent with substantial justice. MCR 2.613(A) . . . . [Lewis v LeGrow, 258
Mich App 175, 211-212; 670 NW2d 675 (2003) (citations omitted).]
1
Defendant first complains that the trial court erred by failing to explain to the jury that the
casino could only face vicarious liability for any constitutional violation by its employees
“pursuant to a custom, policy or practice of th[e] employer.” (Defendant’s brief, p 33.) Before
instructing the jury, the trial court agreed, over plaintiff’s objection, to instruct the jury regarding
-16-
the concept of respondeat superior. But when instructing the jury, the trial court failed to
incorporate any reference to vicarious liability. After the jury retired to deliberate, defense
counsel apprised the trial court that it had “omitted instructing on private security officer, MCL
338[.1079].” Plaintiff’s counsel replied that he had no objection to the private-security-officer
instruction, and the following exchange then occurred:
The Court: Alright, I’ll give it. Anything else?
Defense Counsel: No, we’ve been through it all.
The jury returned and received instruction with respect to the authority of private security
officers, after which the parties again discussed the propriety of the instructions:
The Court: Gentlemen, are the, is the Plaintiff satisfied with the
instructions and form of the verdict?
Plaintiff’s Counsel: Your Honor, other than the previously positions [sic],
yes your Honor.
The Court: And the Defendant.
Defense Counsel: Ditto.
The above-quoted exchanges reflect defendant’s forfeiture (“No, we’ve been through it all”) and
waiver of a vicarious-liability-instruction objection, because defense counsel ultimately and
affirmatively expressed satisfaction with the instructions to the jury. Defendant’s expression of
satisfaction with the instructions, which omitted the vicarious-liability instruction, constitutes a
waiver that extinguishes any error concerning vicarious liability. Grant v AAA Michigan/
Wisconsin, Inc (On Remand), 272 Mich App 142, 148; 724 NW2d 498 (2006).11
2
Defendant next maintains that the trial court insufficiently defined for the jury the
parameters of a Fourth Amendment violation, but we once again conclude that defendant waived
any claim of error. After the jury began deliberating, it requested clarification regarding the
Fourth Amendment, prompting the following exchange:
11
Even assuming that defendant only forfeited its objection to the trial court’s omission of a
vicarious-liability instruction, this error did not substantially prejudice the defense. MCR
2.613(A). During closing arguments, opposing counsel repeatedly acknowledged the trial
testimony and documentary evidence substantiating the casino’s adherence to various detention
related policy provisions relevant to this case. The trial court’s neglect to additionally instruct
the jury that the casino could only face liability for actions that its agents took pursuant to casino
rules or policies thus had no adverse effect on the jury’s determination of the casino’s liability
under § 1983.
-17-
The Court: And then they say re-read Fourth Amendment, Fourteenth
Amendment parameters. Well technically it’s not in evidence. What I propose to
do is just tell them what the Fourth Amendment is, that citizens of the United
States shall be protected against unlawful searches and seizures. And the
Fourteenth Amendment applies that to Michigan. Any objections?
Plaintiff’s Counsel: No your Honor.
Defense Counsel: I do your Honor. I think you’ve read the illegal search
and seizure instruction. And I think to instruct them in something different at this
point may even cause greater confusion.
The Court: Well shall I simply—
Plaintiff’s Counsel: Reread that instruction.
The Court: Reread that instruction[?][12]
12
Contrary to defendant’s suggestion that the trial court did not supply the jury with “an
articulable standard by which to” consider a Fourth Amendment violation, the trial court did
instruct the jury in detail regarding the § 1983 claim, in relevant part, as follows:
Ladies and gentlemen, I’m now going to begin a series of instructions
on . . . . unlawful search. Under the Constitution of the United States, that is the
Fourth Amendment, every person has the right not to be subjected to
unreasonable searches and seizures. In order to prove this claim, Plaintiff must
prove by a preponderance of evidence each of the following elements. First, the
Defendant intentionally violated Plaintiff’s constitutional right by conducting an
unreasonable search and seizure. Second, that the Defendant’s acts were the
proximate cause of damages sustained by the Plaintiff.
Additional instructions. . . .
It is also a statement of our law that any person who assaults or assaults
and batters an individual shall be guilty of a misdemeanor. This is the definition
of probable cause. If an arrest is lawful when made, there has not been a false
arrest or false imprisonment. Instead, claims of false arrest and false
imprisonment require Plaintiff prove that the arrest or detention lacked probable
cause. Probable cause that a particular person has committed a crime is
established by a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant the cautious person in the belief that
the accused is guilty of the offense. If you find the Defendants had probable
cause to believe that Plaintiff committed an assault on the Motor City Casino
security officer, then you decide, you must decide that Motor City Casino
personnel were entitled to detain Plaintiff.
(continued…)
-18-
Defense Counsel: Yes, I think that’s the way it should be done.
The trial court proceeded to reiterate to the jury the two constitutional elements of § 1983, but
did not include the detailed paragraph regarding probable cause that initially had followed the
§ 1983 elements. Nonetheless, when the trial court inquired whether “[d]efendant [was]
satisfied,” his counsel affirmatively replied, “Yes your Honor.” To the extent that the trial
court’s reinstruction—at defense counsel’s request—qualified as erroneous, defense counsel’s
affirmative expression of satisfaction with the trial court’s charge extinguished any error. Grant,
supra at 148.
III. Challenges to Punitive-Damages Award
Defendant next contends that the trial court should have granted a new trial on the issue
of §1983 punitive damages because the jury’s award was inconsistent with its rejection of
plaintiff’s counts alleging false arrest, assault and battery, and intentional infliction of emotional
distress, and with plaintiff’s request for exemplary damages.
Our review of the record leads us to conclude, however, that the entirety of the jury’s
special verdict comports with the trial evidence and the trial court’s careful and extended
delineation of the distinctions between, and components of, compensatory damages, exemplary
damages, and punitive damages. As this Court has observed, “The Michigan Supreme Court has
repeatedly held that the jury’s verdict must be upheld, even [if] it is arguably inconsistent, if
there is an interpretation of the evidence that provides a logical explanation for the findings of
the jury.” Allard v State Farm Ins Co, 271 Mich App 394, 407; 722 NW2d 268 (2006) (internal
quotation marks omitted). Furthermore, a reviewing court must make “every attempt . . . to
harmonize a jury’s verdicts. Only where verdicts are so logically and legally inconsistent that
they cannot be reconciled will they be set aside.” Id. (internal quotation marks omitted).
The jury’s finding that defendants unlawfully detained plaintiff (special verdict question
1), its somewhat similar finding that defendants falsely imprisoned plaintiff (special verdict
question 3), coupled with its rejections of plaintiff’s other proffered tort claims, namely false
arrest, assault and battery, and intentional infliction of emotional distress (special verdict
questions 2, 4, and 5), suggest that the jury viewed defendants’ initial arrest or seizure of plaintiff
and the placement of plaintiff in the casino’s security office as premised on probable cause that
plaintiff may have unlawfully touched Martinez, but concluded that defendants eventually
detained plaintiff against his will, or extended the seizure’s duration for too long. The jury’s
special verdicts 1 through 5 find support in the evidence and appear to be at a minimum
reasonably consistent.
Regarding defendant’s specific challenge to the jury’s awards of damages, in special
verdict question 6 the jury found that defendant had caused plaintiff $125,000 in “non-economic
loss compensatory damages,” which the trial court explained should “fairly and adequately
(…continued)
After reviewing these instructions in their entirety, we conclude that they adequately describe the
legal principles governing a determination whether defendants unlawfully searched or seized
plaintiff, in violation of the Fourth Amendment. Lewis, supra at 211-212.
-19-
compensate[] him” “for mental anguish, fright and shock and embarrassment.” The jury then
rejected the claim that plaintiff would sustain future compensatory damages. (Special verdict
question 7.) In special verdict question 8, the jury considered and rejected the claim that plaintiff
had endured exemplary damages, which the trial court defined as “injury to Plaintiff’s feelings,”
in this case “humiliation, outrage or indignity.” Lastly, the jury found that defendants had
violated “plaintiff’s right to be free from unreasonable searches and seizures under the [f]ourth
and [f]ourteenth [a]mendments to the U.S. Constitution” (special verdict question 9), and
awarded plaintiff $400,000 in punitive damages (special verdict question 10), which the trial
court described as an amount “appropriate to punish the Defendants or to deter the Defendants
and others from like conduct in the future.”13
In summary, we fail to detect any manner by which the jury rendered an inconsistent
verdict regarding defendant’s liability or plaintiff’s entitlement to the three distinct types of
damages he sought. Allard, supra at 407.
IV. Challenges to False-Imprisonment Special Verdict
Defendant additionally asserts that the trial court erred by denying its motion for a
directed verdict with respect to plaintiff’s false-imprisonment count because Grzadzinski
indisputably had probable cause to detain plaintiff. The trial testimony plainly reflects that
plaintiff and the several members of his group offered recollections of the September 14, 2002,
confrontation that differed markedly from the testimony of Martinez, Grzadzinski, McDowell,
and Jeanne Snyder, plaintiff’s former fiancée, regarding the important issues whether (1) plaintiff
made nonchalant arm gestures, (2) plaintiff might have been close to or distant from Martinez at
the time plaintiff gestured, and (3) plaintiff intentionally poked, punched, struck, or otherwise
touched Martinez’s chest. Given the widely contradictory testimony offered in these areas,
which were central to a determination whether defendant possessed probable cause through its
security personnel to arrest or detain plaintiff, it was the jury’s prerogative to resolve this issue of
fact, including the inherent credibility questions. Zeeland Farm, supra at 195; Hunt, supra at 99.
Consequently, the trial court properly denied a directed verdict on plaintiff’s false-imprisonment
count.
Alternatively, defendant suggests that the trial court should have granted a new trial
because it inadequately explained to the jury the elements of false imprisonment, and that the
instructions given did not support the jury’s rejection of the false-arrest claim while finding
liability for false imprisonment. The trial court read to the jury four paragraphs of instructions
differentiating the elements of false arrest from false imprisonment.
As defendant
acknowledges, these instructions very closely tracked Michigan Model Civil Jury Instructions
116.01 (“False Arrest—Definition”), 116.02 (“False Imprisonment—Definition”), 116.20
(“False Arrest—Burden of Proof”), and 116.21 (“False Imprisonment—Burden of Proof”).
Defendant also concedes that within the next two to four paragraphs, the trial court fleshed out,
13
The trial court carefully and at length distinguished for the jury the three types of damages at
issue in this case.
-20-
in the context of plaintiff’s § 1983 claim, the concept of probable cause necessary to render a
search or seizure reasonable and lawful.
We conclude that, taken as a whole, the trial court’s extended and indisputably accurate
recitation of the relevant legal principles regarding false arrest, false imprisonment, and probable
cause fully and fairly set forth for the jury the elements of false arrest and false imprisonment.
Lewis, supra at 211-212. And as discussed in part III of this opinion, applying the false-arrest
and false-imprisonment instructions to the facts of this case demonstrates that the jury likely, and
reasonably, viewed the casino’s initial detention of plaintiff in its security area as supported by
probable cause that he assaulted Martinez, but deemed plaintiff’s more than two-hour detention
locked in the casino’s security office as unsupported by any legal basis, and therefore amounting
to false imprisonment.
V. Remittiur Request Concerning Noneconomic-Damages Award
Defendant lastly complains that the trial court should have remitted the jury’s award of
$125,000 in compensatory damages, which lacked support in the trial evidence, especially given
that the jury rejected that defendants had intentionally inflicted emotional distress.
In determining whether remittitur is appropriate, a trial court must decide
whether the jury award was supported by the evidence. This determination must
be based on objective criteria relating to the actual conduct of the trial or the
evidence presented. The power of remittitur should be exercised with restraint. If
the award for economic damages falls reasonably within the range of the evidence
and within the limits of what reasonable minds would deem just compensation,
the jury award should not be disturbed. A trial court’s decision regarding
remittitur is reviewed for an abuse of discretion. We review all of the evidence in
the light most favorable to the nonmoving party. [Silberstein v Pro-Golf of
America, Inc, 278 Mich App 446, 462; 750 NW2d 615 (2008) (citations
omitted).]
Plaintiff testified that he endured extreme embarrassment on multiple occasions because
of defendants’ detention of him for more than two hours on September 14, 2002, their decision to
eject and ban him from the casino, and Martinez’s pursuit of criminal assault and battery charges
against him. Specifically, plaintiff averred that on a daily basis he experienced extreme feelings
of upset and embarrassment because of (1) the casino’s treatment of him on September 14, 2002;
(2) his May 2003 Metro Airport arrest on an outstanding assault and battery warrant while
attempting to pick up his girlfriend; (3) his September 2003 appearance in the 36th District Court
for a scheduled criminal trial; (4) his 2005 discovery of the existence of more arrest warrants
stemming from September 14, 2002; (5) the 2005 jury trial for assault and battery that ultimately
ended in his acquittal, and (6) his testimony in the instant civil case. Although plaintiff did not
substantiate that he experienced any significant change in the course of his daily activities, his
testimony that defendants’ conduct caused him extreme upset and embarrassment on multiple
-21-
occasions, especially when viewed in the light most favorable to plaintiff, amply supports the
jury’s award of $125,000 in noneconomic compensatory damages.14
Affirmed.
BORRELLO, J., concurred.
/s/ Elizabeth L. Gleicher
/s/ Stephen L. Borrello
14
Because we are affirming the jury’s special verdict, we need not consider the questions raised
in plaintiff’s “contingent” brief on cross-appeal, which repeatedly sets forth that he wishes this
Court to consider the cross appeal only “in the unlikely event that the jury’s verdict is disturbed
and this matter is remanded for further proceedings.” (Brief on cross-appeal, pp 1, 16.)
-22-
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