GORDON WILSON V OFFICER D MCCORMICK (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
GORDON WILSON, AMY CHABAN and
ANTHONY CHABAN,
UNPUBLISHED
August 25, 2011
Plaintiffs-Appellants,
v
OFFICER D. MCCORMICK, OFFICER JASON
SCHNEIDER and OFFICER BLAKE
MATATALL,
No. 298905
Oakland Circuit Court
LC No. 2009-101672-NO
Defendants-Appellees.
Before: MARKEY, P.J., and SAAD and GLEICHER, JJ.
PER CURIAM.
The trial court granted summary disposition to defendants, plaintiff appeals, and, for the
reasons set forth below, we affirm.
I.
FACTS AND PROCEEDINGS
In October 2007, the United States Secret Service and the Southfield Police Department
conducted an investigation of a counterfeiting scheme. A fraud investigator at a Target store in
Southfield reported that a cashier named Christopher Dickerson had received a large amount of
counterfeit money from customers who bought electronic devices. The investigation revealed
that the suspects would purchase the electronics with counterfeit money and return them to other
Target stores for cash refunds. On November 1, 2007, the Secret Service and Southfield Police
set up a surveillance operation inside and outside the Target store. After Dickerson started his
shift, four men arrived at the store in a white Toyota Corolla. The men were later identified as
Jason Cooper, Jason McDermott, Carlos McKissic, and Leeshawn McClane. The men entered
the store, selected various electronic items, and paid for them at Dickerson’s register. Relevant
to this case, McClane purchased a large screen television from Dickerson. After the men left the
store, another Target employee pulled Dickerson from his register under the pretext that he was
needed for a task elsewhere in the store. Law enforcement agents found $3,000 in counterfeit
money in Dickerson’s cash register.
In the parking lot, the suspects placed most of the items in the Toyota vehicle, but they
could not fit the large screen television in the trunk. Three of the suspects drove away in the
Toyota and left McClane in the parking lot with the television. A short time later, plaintiff
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Gordon Wilson pulled into the Target parking lot in a 1998 Crown Victoria. Plaintiffs Amy
Chaban and her minor son Anthony Chaban were also in the car, along with an acquaintance of
Wilson’s, Lee Greenidge. After Wilson parked the car, Greenidge and Wilson got out and talked
to McClane. The men placed the television in the trunk of Wilson’s car and went inside the
Target store. Wilson walked to the electronics department. He later testified that he intended to
buy a Zoom MP3 player, but he did not purchase anything that day. As he was leaving the store
with Greenidge, Officers Jason Schneider and David McCormick placed Wilson under arrest.
Around the same time, officers approached the Crown Victoria, which was still occupied
by Amy and Anthony Chaban. According to Amy, the officers told her to get out of the car and
put her arms up. Amy testified that she initially resisted because she did not know that the
people who approached the car were law enforcement officers. Amy recalled that an officer,
identified by plaintiffs’ complaint as either Officer Blake Matatall, Officer Schneider or Officer
McCormick, pulled her out of the car and threw or pushed her to the ground on her stomach.
Though she does not claim any physical injuries from the arrest, Chaban maintains that she was
four months pregnant at the time of the incident. Amy and Anthony were taken to the Southfield
Police Department where Amy was questioned and the two were released.
Wilson was also questioned at the Southfield Police Department. During a search,
officers found three counterfeit $100 bills in Wilson’s possession. Wilson admitted to officers
that Greenidge had told him that a cashier at Target would accept counterfeit money and that he
considered using his counterfeit bills that day. In this lawsuit, Wilson testified that he bought the
counterfeit bills from someone at a bar, but he now claims that he knew nothing about the
counterfeit scheme at Target. According to Wilson, while he allowed Greenidge and McClane to
put the television in his trunk, he did not consent to it and he ordered the men to remove it while
he went into Target to shop for an MP3 player.
As noted by the trial court in its June 9, 2010 opinion, the evidence presented does not
precisely identify the criminal charges prosecutors brought against Wilson, but they in essence
told Wilson that he was complicit in “conspiring in the counterfeiting scheme and aiding and
abetting the other suspects in uttering and publishing counterfeit notes.” Ultimately, the district
court ruled that the prosecutor did not present sufficient evidence to bind Wilson over for trial on
the counterfeiting charges.
On June 17, 2009, plaintiffs filed this civil action against Officers McCormick, Schneider
and Matatall for assault and battery, false arrest, false imprisonment and malicious prosecution.
Thereafter, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and
(C)(10). Specifically, defendants argued that they are entitled to governmental immunity as a
matter of law pursuant to MCL 691.1407 and Odom v Wayne County, 482 Mich 459; 760 NW2d
217 (2008). Defendants maintained that there is no issue of material fact regarding whether the
officers acted in the course of their employment and scope of authority, and that their actions
were discretionary and made in good faith. In response, plaintiffs argued that they are entitled to
summary disposition pursuant to MCR 2.116(I)(1) and (2). Plaintiffs argued that defendants are
not entitled to the protections of governmental immunity for intentional torts and that, because
the district court ruled that Wilson should not be bound over for trial, the officers had no
probable cause to arrest plaintiffs and any immunity defense should fail as a matter of law. The
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trial court issued an opinion and order on June 9, 2010, and granted defendants’ motion for
summary disposition.
II.
ANALYSIS
A. STANDARD OF REVIEW AND APPLICABLE LAW
Plaintiffs contend that the trial court erred when it granted summary disposition to
defendants. This Court reviews de novo a trial court’s decision to grant or deny a motion for
summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). As this
Court further explained in Transou v City of Pontiac, 283 Mich App 71, 72-73; 769 NW2d
281 (2009):
A motion under MCR 2.116(C)(7) is properly granted when a claim is
barred by governmental immunity and the nonmoving party has failed to allege
facts that justify an exception to that immunity. Steele v Dep't of Corrections, 215
Mich App 710, 712-713; 546 NW2d 725 (1996). A motion under MCR
2.116(C)(10) is properly granted if no genuine issue of fact exists and the moving
party is entitled to a judgment as a matter of law. Rice v Auto Club Ins Ass'n, 252
Mich App 25, 31; 651 NW2d 188 (2002). In reviewing a motion brought under
MCR 2.116(C)(7) or MCR 2.116(C)(10), we consider all the evidence, including
admissions, affidavits, depositions, and pleadings in the light most favorable to
the nonmoving party.
Defendants argued that they are entitled to governmental immunity from tort liability
under common law and pursuant to MCL 691.1407 which provides, in relevant part:
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused by
the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee's, member's, or volunteer's conduct does not
amount to gross negligence that is the proximate cause of the injury or damage.
(3) Subsection (2) does not alter the law of intentional torts as it existed
before July 7, 1986.
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The Michigan Supreme Court ruled in Odom that, when a defendant raises the affirmative
defense of governmental immunity, our courts must follow the following steps:
(1) Determine whether the individual is a judge, a legislator, or the
highest-ranking appointed executive official at any level of government who is
entitled to absolute immunity under MCL 691.1407(5).
(2) If the individual is a lower-ranking governmental employee or official,
determine whether the plaintiff pleaded an intentional or a negligent tort.
***
(4) If the plaintiff pleaded an intentional tort, determine whether the
defendant established that he is entitled to individual governmental immunity
under the Ross [v Consumers Power Co (On Rehearing), 420 Mich 567; 363
NW2d 641 (1984)] test by showing the following:
(a) The acts were undertaken during the course of employment and the
employee was acting, or reasonably believed that he was acting, within the scope
of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with
malice, and
(c) the acts were discretionary, as opposed to ministerial. [Odom, 482
Mich at 479–480.]
Pursuant to step (2), all of the defendants are lower-ranking governmental employees and
plaintiffs pleaded intentional torts. Accordingly, as outlined by our Supreme Court in Odom, we
will analyze plaintiff’s intentional tort claims under the test outlined in Ross.
B.
DISCUSSION
Plaintiffs do not dispute that, in arresting and detaining plaintiffs and placing Wilson in
jail, defendants were acting within the course of their employment as police officers and they do
not dispute that the officers’ actions were discretionary. Plaintiffs instead argue that the officers
lacked probable cause to arrest plaintiffs and, therefore, they acted outside the scope of their
authority.1 However, plaintiffs base their argument on the trial court’s decision not to bind
Wilson over on charges brought by the prosecutor with regard to Wilson’s involvement in the
1
“Scope of authority” is defined as “[t]he reasonable power that an agent has been delegated or
might foreseeably be delegated in carrying out the principal's business.” Backus v Kauffman (On
Rehearing), 238 Mich App 402, 409; 605 NW2d 690 (1999), quoting Black's Law Dictionary
(7th Ed), p 1348.
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counterfeiting ring. As the trial court correctly ruled, the question of whether there was probable
cause to arrest plaintiffs at the scene of the crime is an entirely different inquiry.
“Probable cause to arrest exists where the facts and circumstances within an officer’s
knowledge and of which he has reasonably trustworthy information are sufficient in themselves
to warrant a man of reasonable caution in the belief that an offense has been or is being
committed.” People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996). This standard was
clearly satisfied here. Defendants presented evidence that, in conjunction with a detailed
investigation by the United States Secret Service, the defendant officers and other law
enforcement officials observed McClane and other suspects purchase electronic items from
Target employee Christopher Dickerson, who was known to have taken a significant amount of
counterfeit money in exchange for electronic merchandise. Immediately after McClane bought
the large screen television at Dickerson’s register, investigators found counterfeit bills in the
register that were clearly used in the transaction. As these activities occurred, Wilson arrived in
the Target parking lot with Greenidge and Amy and Anthony Chaban. Outside the store, officers
saw McClane, Wilson and Greenidge place the television into Wilson’s car. According to
plaintiffs’ complaint, Amy and Anthony Chaban remained in the car to protect the television
while Wilson went back into the Target store and plaintiffs were arrested shortly thereafter.
Clearly, the evidence reported to and observed by the officers was reasonably trustworthy
and more than sufficient to warrant a cautious person to believe that plaintiffs were involved in
the commission of a crime. Champion, 452 Mich at 115. Plaintiffs arrived at the scene of the
counterfeiting activity to take possession of merchandise that was clearly purchased with
counterfeit money, and all of this activity was observed by law enforcement officials. In
detaining, arresting and questioning plaintiffs, the defendant officers clearly acted within the
scope of their authority as police officers. In response to this showing by defendants, plaintiffs
presented no evidence to establish any basis to believe that the officers lacked probable cause to
believe that plaintiffs were involved in the ongoing criminal activity. It is well-settled that, if an
arrest is legal, plaintiffs cannot maintain a claim of false arrest or false imprisonment. Peterson
Novelties, Inc v City of Berkley, 259 Mich App 1, 18; 672 NW2d 351 (2003).
For purposes of all of their claims against the officers, plaintiffs make the cursory
assertion that defendants failed to show that their acts “were undertaken in good faith, or were
not undertaken with malice . . . .” Odom, 482 Mich at 480. Plaintiffs again rely entirely on the
trial court’s decision not to bind Wilson over after the preliminary examination. Again,
however, the basis for plaintiffs’ argument is erroneous. Regardless of the bindover decision,
even if an officer ultimately had no basis to arrest a suspect, so long as the officer acted in good
faith, he is entitled to immunity under Ross. Id. at 481.
“Good faith” means the officer did not act maliciously or with an improper purpose.
Odom, 482 Mich at 474-475. Indeed, our Supreme Court has ruled that a lack of good faith
amounts to conduct that evidences “ ‘an intent to harm or, if not that, such indifference to
whether harm will result as to be the equivalent of a willingness that it does.’ ” Id. at 475,
quoting Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 801 (1982). Clearly, the
officers presented evidence that they acted without malice. The evidence submitted to the trial
court shows that the officers observed criminal activity occurring at the Target store, they
observed plaintiffs take possession of merchandise obtained through the use of counterfeit funds,
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and they properly arrested and detained plaintiffs as suspects. There is no indication anywhere in
the record that the officers acted with any improper purpose in any aspect of the investigation or
arrests.2 Accordingly, the trial court correctly granted summary disposition to defendants.
Affirmed.
/s/ Jane E. Markey
/s/ Henry William Saad
/s/ Elizabeth L. Gleicher
2
Plaintiffs fail to articulate the specific reasons their assault and battery claim should survive,
though this again appears to be based on their erroneous assertion about a lack of probable cause.
Otherwise, plaintiffs merely set forth the definition of assault and battery and make no other
legal or factual argument to support their claim. This amounts to an abandonment of the issue.
An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims. Peterson Novelties, 259 Mich App at 14.
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