RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0113p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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ESTATE OF LEON SMITHERS, by his Personal
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Representative, Homer Norris, Jr.; ALAN
SHARP; ROBERT BONNER, -
Plaintiffs-Appellants, -
No. 09-1164
,
>
-
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v.
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CITY OF FLINT; TERRANCE WALKER; BRIAN
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Defendants-Appellees. N
MURPHREE, Officers; GACIA,
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-40347—Stephen J. Murphy, III, District Judge.
Argued: March 11, 2010
Decided and Filed: April 21, 2010
*
Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.
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COUNSEL
ARGUED: James M. Cull, CULL & CULL, Southfield, Michigan, for Appellants.
Michael J. Gildner, SIMEN, FIGURA & PARKER, P.L.C., Flint, Michigan, I’Lanta M.
Robbins, CITY OF FLINT LAW DEPARTMENT, Flint, Michigan, for Appellees.
ON BRIEF: James M. Cull, CULL & CULL, Southfield, Michigan, for Appellants.
Michael J. Gildner, SIMEN, FIGURA & PARKER, P.L.C., Flint, Michigan, I’Lanta M.
Robbins, CITY OF FLINT LAW DEPARTMENT, Flint, Michigan, for Appellees.
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 2
_________________
OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Alan Sharp, Robert Bonner,
and the estate of Leon Smithers appeal the district court’s dismissal of their claims
against Officers Brian Murphree and Terrance Walker and the City of Flint, Michigan
alleging constitutional violations pursuant to 42 U.S.C. §§ 1983, 1985(2) & (3),
regarding the events surrounding the fatal shooting of Smithers and the injury of Sharp
and Bonner. The officers took an intoxicated Shirley Washington Ewing, Smithers’
girlfriend, into custody, ticketed her for trespassing, and released her to her mother
shortly thereafter. Washington then returned to Smithers’ home and shot him, Sharp,
and Bonner. Plaintiffs’ claims stem from the officers’ decision to arrest Washington for
trespassing rather than for domestic violence, which would have required her to be held
for 20 hours, and, they argue, prevented the tragedy. For the reasons set forth below, we
AFFIRM the district court’s entry of judgment for the defendants.
I.
On October 26, 2002, Smithers was in his Flint, Michigan home with Alan Sharp,
Robert Bonner, Shirley Washington Ewing,1 and Booker Washington watching
television and playing cards. According to Sharp, everyone was drinking and a verbal,
but non-physical, argument began between Smithers and Washington, his girlfriend.
Smithers asked Washington to leave, but she refused.
Smithers telephoned the Flint Police Department requesting the removal of
Washington, stating “I got a problem up here in the house. I want someone to leave,
they don’t stay here.” Dispatcher Tanyanika Gibbs testified that, when she requested
additional information, Smithers told her that someone was refusing to leave his house
1
The parties and the court disagree on whether the assailant’s name is Shirley Washington Ewing
or Shirley Ewing Washington. The district court refers to her as Washington and, to avoid confusion, we
do so as well. We likewise refer to Booker Washington as Mr. Washington.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 3
and he was not going to say anything further. Gibbs dispatched Officers Brian Murphree
and Terrance Walker to the residence with the dispatch code TWM, for “trouble with a
man.”
Bonner testified that the intoxicated Washington threatened to kill Smithers,
Sharp, and Bonner, and stated that she intended go home and “retrieve her nine
millimeter handgun” and that this “would be the last time that [Smithers] would ever call
the police on her.”
When the officers arrived, Officer Walker questioned Smithers and Washington.
Smithers stated that Washington was his girlfriend but that she did not live there and that
he wanted her to leave the residence. Smithers asked the “obviously intoxicated”
Washington to leave. Sharp and Booker testified that Washington repeated her statement
that “this would be the last time that [Smithers] would call the police on her,” and stated
that “if you take me to jail, I’m going to come back and kill ‘em.” The officers testified
that they did not hear any death threats. When the officers informed her that she would
be arrested if she did not leave, Washington stated “[f]*** -it, arrest me.” Washington’s
brother, Mr. Washington, testified that he heard her state that she was “going to f***
y’all up when I get out of jail,” as the officers handcuffed her and placed her in the back
of the squad car. Smithers and his friends went back inside without locking the door.
Meanwhile, Washington was taken to the Flint police station, booked, issued an
appearance ticket for trespassing, and released. Washington called her mother to take
her home. Washington returned to Smithers’ house shortly after 7 p.m. with a gun,
fatally shooting Smithers and wounding Sharp and Mr. Washington. Washington was
convicted by a jury of second-degree murder.
On October 14, 2005, Sharp, Bonner, and the estate of Smithers filed suit in the
Circuit Court of Genessee County, Michigan, alleging constitutional violations pursuant
to 42 U.S.C. §§ 1983, 1985(2) & (3), and state law claims arising from the events
surrounding the shooting incident. Plaintiffs allege that the officers “conspired with one
another and other officers in the department, in an attempt to hide . . . the fact that the
death and injuries should have been prevented by the Flint Police Department and its
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 4
officers.” Plaintiffs request monetary damages for “Defendants’ negligent acts, failure
to follow the proper procedures and . . . complete disregard of local, state and federal law
and constitutional protections”, alleging conspiracy and violation of the Fourteenth
Amendment’s Due Process and Equal Protection Clauses. The matter was removed to
federal district court on November 14. On November 22, the district court remanded the
state law claims.
On July 24, 2008, Magistrate Judge R. Steven Whalen heard oral argument on
cross-motions for summary judgment. Magistrate Judge Whalen filed a Report and
Recommendation on September 2, 2008, recommending that the district court grant
defendants’ motion for summary judgment. Following objections,2 the district court
adopted the Report and Recommendation on January 16, 2009, specifically overruling
plaintiffs’ objections and entering judgment in favor of defendants. Estate of Smithers
v. City of Flint, Slip Op., No. 05-40347, 2009 WL 117623, at *11 (E.D. Mich. Jan. 16,
2009). Plaintiffs timely appealed.
II.
A. Standard of Review
Summary judgment is appropriate when “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). The “mere existence of some alleged factual dispute will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
2
Defendants argue that plaintiffs waived their right to appeal because they filed their objections
to the Report and Recommendation on September 15, 2008, more than 10 days after the Report was filed
on September 2, 2008. However, “[i]n Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir. 1983), this court
concluded that when written objections to a magistrate’s report are tendered beyond the 10-day period of
28 U.S.C. § 636(b)(1), but are nevertheless filed and considered by the district court, the criteria identified
in [United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)] in justification of the waiver rule
promulgated therein dissipate and the rule will not apply to bar appellate review.” Kent v. Johnson, 821
F.2d 1220, 1223 (6th Cir. 1987). Thus, the district court’s decision to consider the objections excused their
untimely filing, and plaintiffs did not waive their right to appellate review.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 5
B. Procedural Due Process
Plaintiffs allege that Washington made death threats in the presence of the
officers and that the officers were therefore required to detain her for at least 20 hours
for domestic violence, pursuant to MCL § 750.81a, rather than arresting her for
trespassing and releasing her on an interim bond. The officers’ failure to detain
Washington for those 20 hours allegedly deprived plaintiffs of their Fourteenth
Amendment rights to procedural due process. The district court disagreed and entered
summary judgment on the procedural due process claim.
The Supreme Court has held that a state statute written in purportedly mandatory
terms providing that “a peace office shall arrest” a person whom he has probable cause
to believe has violated a domestic restraining order does not give rise to a protected
property interest under the Due Process Clause. Town of Castle Rock, Colo. v. Gonzales,
545 U.S. 748, 749, 766 (2005). The Supreme Court found that police have the
“discretion to determine that—despite probable cause to believe a restraining order has
been violated—the circumstances of the violation or the competing duties of that officer
or his agency counsel decisively against enforcement in a particular instance.” Id. at
761. Castle Rock held that, even if a statute confers an individual entitlement to
enforcement, this is not the “sort of ‘entitlement’ out of which a property interest is
created.” Id. at 764.
The district court found that MCL § 750.81a provides that a police officer may
arrest an individual charged with domestic violence, not that he must.3 The law gives
3
MCL § 764.15a provides for the warrantless arrest of an individual whom the police
believe has violated section 750.81a:
. . . regardless of whether the peace officer has a warrant or whether the violation was
committed in his or her presence if the peace officer has or receives positive information
that another peace officer has reasonable cause to believe both of the following:
(a) The violation occurred or is occurring.
(b) The individual has had a child in common with the victim, resides or has
resided in the same household as the victim, has or has had a dating
relationship with the victim, or is a spouse or former spouse of the victim. As
used in this subdivision, “dating relationship” means frequent, intimate
associations primarily characterized by the expectation of affectional
involvement. This term does not include a casual relationship or an ordinary
fraternization between 2 individuals in a business or social context.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 6
officers discretion in determining whether an action constitutes a domestic violence
incident. While plaintiffs are correct that officers do not have the discretion to release
an individual pursuant to MCL § 780.582a should she be arrested for domestic violence,
the Supreme Court has held that police officers have discretion to determine whether to
arrest someone for domestic violence in the first place, even if the relevant statute seems
to make such an arrest mandatory. Thus, even assuming that the officers heard
Washington make a threat, they had discretion not to arrest her on charges of domestic
violence.
Thus, the district court did not err in granting defendants’ motion for summary
judgment on plaintiffs’ procedural due process claim.
C. Substantive Due Process
Plaintiffs argue that the district court erred in finding that they had failed to
establish a substantive due process claim based on a state-created danger when
defendants released Washington. Essentially, plaintiffs argue that the officers created
a danger to them when the officers chose to ticket Washington for trespassing and to
release her, rather than to detain her for 20 hours on charges of domestic violence. They
also argue that the officers’ arrest of Washington for trespassing created an illusion of
safety because plaintiffs believed that Washington would be held for 20 hours pursuant
to a domestic violence arrest.
In Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189
(1989), the Supreme Court held that the Due Process clause does not “require[] the State
to protect the life, liberty, and property of its citizens against invasion by private actors.”
Id. at 195. In both Deshaney and Bukowski v. City of Akron, 326 F.3d 702 (6th Cir.
2003), the state took temporary custody of a minor, who would eventually become the
victim, based on suspicions of abusive circumstances; however, the state did not
maintain custody of the minors. DeShaney, 489 U.S. at 192, Bukowski, 326 F.3d at
Finally, MCL § 780.582a provides that an individual arrested without a warrant under section 764.15a, or
for a violation of section 750.81a, cannot be released on interim bond by the police.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 7
705-06. Upon their respective returns, Joshua DeShaney was beaten into a coma and
Lisa Bukowski was raped. DeShaney, 489 U.S. at 193; Bukowski, 326 F.3d at 706. In
each case, it was held that the state “had played no part in creating the dangers faced by
the petitioner nor did it do anything to render him any more vulnerable to them.”
Lanman v. Hinson, 529 F.3d 673, 682 n.1 (6th Cir. 2008) (citing DeShaney, 489 U.S. at
201); see Bukowski, 326 F.3d at 709. Essentially, “while the state generally does not
shoulder an affirmative duty to protect its citizens from private acts of violence, it may
not cause or greatly increase the risk of harm to its citizens without due process of law
through its own affirmative acts.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1066
(6th Cir. 1998).
A state-created danger claim has three elements:
(1) an affirmative act by the state which either created or increased the
risk that the plaintiff would be exposed to an act of violence by a third
party; (2) a special danger to the plaintiff wherein the state’s actions
placed the plaintiff specifically at risk, as distinguished from a risk that
affects the public at large; and (3) the state knew or should have known
that its actions specifically endangered the plaintiff.
Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006) (citing Cartwright v. City of
Marine City, 336 F.3d 487, 493 (6th Cir. 2003)); see Ewolski v. City of Brunswick, 287
F.3d 492, 509 (6th Cir. 2002) (“[S]tate officials may violate the Due Process Clause
when their affirmative actions directly increase the vulnerability of citizens to danger or
otherwise place citizens in harm’s way.”). As it is difficult to determine whether an
officer’s “behavior amounts to affirmative conduct or not, we have focused on ‘whether
[the victim] was safer before the state action than he was after it.’” Koulta v. Merciez,
477 F.3d 442, 446 (6th Cir. 2007) (quoting Cartwright, 336 F.3d at 493).
We have been hesitant to find that the police’s response to a 911 call is an
affirmative act that increases the danger to the victim. In Koulta, the police were called
to the scene of Chrissy Lucero creating a disturbance at her ex-boyfriend’s home. The
police told Lucero, who was visibly intoxicated and sitting in her car, “that she had ‘10
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 8
seconds to get out of [t]here.’” Id. at 444. She drove away and crashed into Sami
Koulta’s car approximately 10 minutes later. We held that:
The officers’ failure to administer a breathalyzer test . . . before ordering
her to leave the property may well have been negligent, but it did not
“create” or “increase” the danger—of Lucero drinking and driving—that
pre-dated their arrival on the scene. The same is true of the officers’
decision to order Lucero to leave the property. Consistent with the
homeowner’s understandable request, the officers told Lucero to “go
home” when they arrived at the Offrink’s home, and, when Lucero did
not leave after saying she would, they ordered her to leave the property
immediately. The claimant cannot maintain that Lucero never would
have been drinking and driving that night but for the officers’
conduct-given her acknowledged behavior before they arrived. And the
claimant cannot maintain that Lucero would not have driven to the scene
of the accident but for the officers’ conduct. As Lucero acknowledges,
the officers told her to “go home” when they first arrived and later
ordered her to leave the property. Neither directive required Lucero to
drive home if she lacked the capacity to do so. Nothing prevented her
either (1) from driving down the block, then calling a cab or waiting to
drive the rest of the way home after becoming sober or (2) from asking
the officers for assistance in getting home.
In the final analysis, Lucero’s admitted proclivity to drink and drive that
evening placed Koulta (and other people using the roadways) in as much
danger before the officers arrived as afterwards. And much as the
officers were in a position to head off the tragedy that materialized
minutes later, a reality (and memory) that no court decision will
eliminate, their conduct was no more an affirmative risk-creating act than
the conduct of the officers in DeShaney (who returned an abused child
to the custody of his abusive father) or Bukowski (who returned a
mentally disabled girl to the stranger who had been sexually abusing
her).
Id. at 446-47.
Plaintiffs here argue that the officers engaged in an affirmative act that created
a danger when they released Washington from custody on the trespassing charge rather
than holding her at least overnight on a domestic violence charge, creating an illusion
of safety for plaintiffs. They suggest that the officers’ decision to release Washington
operated as an approval of her threats.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 9
However, while this action may have been ill-advised, the officers’ failure to
hold Washington did not constitute an affirmative act. The officers exercised their
discretion in arresting Washington for trespassing, rather than for domestic violence, for
which they are protected under Castle Rock. Thus, the officers’ first affirmative act had
the effect of protecting Washington’s eventual victims, at least for a short period of time.
Their second affirmative act, releasing Washington from custody, did not
“create” or “increase” the danger to plaintiffs. The officers did not require or encourage
plaintiffs to remain in the unlocked house or suggest that Washington would be held for
20 hours so as to imply that plaintiffs would be safe. Their actions did not constitute an
approval of Washington’s threats any more than the return of the children in DeShaney
or Bukowski encouraged that those children should be further harmed. As in those cases,
these events were tragic; however, the officers’ actions could not have been interpreted
by a reasonable juror to have created or increased the danger to plaintiffs.
D. Conspiracy
On appeal, plaintiffs argue that the district court erred in dismissing their charges
of civil conspiracy pursuant to 42 U.S.C. §§ 1985(2) and (3) based on the intracorporate
conspiracy doctrine.4 Plaintiffs believe that the officers conspired with one another and
the City, and then later with their attorney, in their statements that they had not heard
4
The intracorporate conspiracy doctrine states that:
It is basic in the law of conspiracy that you must have two persons or entities to have
a conspiracy. A corporation cannot conspire with itself any more than a private
individual can, and it is the general rule that the acts of the agent are the acts of the
corporation.
Hull v. Cuyahoga Valley Joint Vocational Sch. Dist., 926 F.2d 505, 509-10 (6th Cir. 1991) (citations
omitted); see also Doherty v. Am. Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984) (adopting the general
rule in civil conspiracy cases that a corporation cannot conspire with its own agents or employees). In
Hull, we found that the intracorporate conspiracy doctrine applies to claims brought under sections
1985(2) and (3). Hull, 926 F.2d at 510. The Supreme Court has recognized a circuit split on this issue,
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775 n.24 (1984), but it has not yet acted
to resolve it.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 10
Washington’s threats of violence and in not filling out the state-required domestic
violence forms.5
However, plaintiffs have not submitted sufficient evidence of a conspiracy,
outside of their own assertions, including any evidence of Officer Walker’s alleged
failures in record-keeping or any evidence that Officer Walker conspired with Officer
Murphree or any other party, to survive a motion for summary judgment on this issue.
Plaintiffs seem to be asserting that the fact that they have a different version of the
events than that provided by the officers in their records and testimony means that the
officers are necessarily conspiring with one another to mislead the court and deprive
plaintiffs of an unnamed constitutional right. However, this alone is insufficient to
permit a claim of conspiracy to survive a motion for summary judgment.6
Thus, the district court did not err in dismissing plaintiffs’ civil conspiracy claim.
E. Equal Protection
Plaintiffs argue that the district court erred in granting defendants’ motion for
summary judgment on their equal protection claim. Essentially, they argue that
defendants treated their situation differently from other domestic violence situations
because the aggressor in this incident was female, rather than male, and the event took
place in a poor neighborhood.
“The State may not, of course, selectively deny its protective services to certain
disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489
U.S. at 197 n.3 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). To sustain a claim
under section 1985(3), a claimant must prove both membership in a protected class and
5
Plaintiffs further argue that the officers’ counsel conspired with Officer Walker to provide false
testimony that Washington had not made any threats at deposition. However, this allegation is neither
asserted in their complaint (as it arose after the complaint was filed) nor did plaintiffs request leave to
amend their complaint so as to include it. This allegation was therefore not properly before the district
court and is not properly before this Court.
6
As plaintiffs failed to present sufficient evidence to survive a motion for summary judgment on
their claim of conspiracy, we need not address the issue of whether the intracorporate conspiracy doctrine
applies to protect police officers and police departments.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 11
discrimination on account of it. Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir. 2000).
In other words, there must be proof of “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus.” Id. at 559-60 (citing United Bhd. of Carpenters and
Joiners of Am. v. Scott, 463 U.S. 825, 829 (1983)).
In the district court, plaintiffs alleged that Officers Murphree and Walker violated
plaintiffs’ equal protection rights by treating the trespassing complaint differently
because the aggressor was a woman and because the complaint originated in a poor
neighborhood. Plaintiffs assert that the protected class in this case is male victims of
domestic violence and that the alleged unequal treatment is the failure to arrest female
perpetrators of domestic violence. Sharp and Bonner testified to their beliefs that the
officers would have responded differently to Washington’s behavior had she been a man,
but neither testified to a belief that the type of neighborhood in which Smithers lived
contributed to the officers’ actions.
However, neither Sharp nor Bonner cited additional evidence to substantiate their
beliefs that gender was a factor in the officers’ responses. Plaintiffs rely on statistics that
purport to compare male-female offender rates, unrestricted to domestic violence cases,
in Genessee and Wayne Counties. The City provided statistics pursuant to the MCL
§ 23.257,7 but these statistics do not appear to break out the numbers for domestic
violence apart from other offenses. According to the statistics provided, a smaller
percentage of female offenders as compared to male offenders were arrested in Genesee
7
MCL § 28.257 provides that:
The chief of police of each city . . . shall report to the department of state police, in a
manner prescribed by the department, the following information related to domestic
violence incidents:
(a) The number of assaults reported that involve an adult and a minor and the disposition
of those offenses.
(b) The number of assaults reported that involve either 2 male adults or 2 female adults
and the disposition of those offenses.
(c) The number of assaults reported that involve 1 male adult and 1 female adult and the
disposition of those offenses.
(d) The number of crimes reported that involve an individual and his or her spouse, his
or her former spouse, an individual with whom he or she has had a child in common, an
individual with whom he or she has or has had a dating relationship, or an individual
who resides or has resided in the same household; and the disposition of those offenses.
...
(e) Other statistics the director of the department of state police considers necessary to
obtain accurate and reliable data on the incidence of domestic violence in this state.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 12
and Wayne Counties than in the State at large during 2002, the year of the incident, for
all offenses, not just domestic violence. As the district court correctly found, “[n]either
the statistics and the Plaintiffs’ deposition testimony come close to satisfying their
burden of demonstrating facts sufficient to overcome summary judgment.” Smithers,
2009 WL 117623, at *11.
Plaintiffs also argue that the City failed to keep statistics on domestic violence
and report them to the Michigan Department of State Police, as required by the State of
Michigan. MCL § 28.257. Plaintiffs argue that the City failed to comply with the statute
requiring it to submit statistics to the State on domestic violence incidents during the
applicable year. This failure to report data in accordance with section 28.257, plaintiffs
contend, entitles them to a jury instruction that documents not produced are considered
to be adverse to the City.8
However, even had the requested statistics been provided, they would not have
been sufficient to survive a motion for summary judgment. Plaintiffs claim that the
alleged disparity in female offenders “can only be explained due to Defendant, City’s
[sic] closure of its jail, and its reliance, contrary to law, on the County of Genesee’s
policy of treating females on an ‘individual basis.’” (Appellants’ Brief at 20.) The
requested statistical data would not necessarily prove out this point. Indeed, this data
could show a number of things about the relevant counties apart from the contention that
the police discriminate against male victims of domestic violence, such as relative
efficiencies of the police or the rates of occurrence of offenses committed by men and
women across the state. As such, plaintiffs were not entitled to a jury instruction on this
point.
In short, plaintiffs’ unsubstantiated opinions, that they believe that the situation
would have been handled differently had the perpetrator been male, and the lack of
8
Plaintiffs also argue, but provide no evidence, that the officers conspired with the City to deprive
plaintiffs of their constitutional rights by failing to produce documents related to domestic violence cases.
No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 13
statistics, which would be inconclusive at best, are insufficient to survive a motion for
summary judgment. Thus, the district court did not err in granting defendants’ motion.9
III.
We therefore AFFIRM the district court’s judgment.
9
Moreover, plaintiffs argue that the district court erred in finding that defendants are entitled to
qualified immunity and that plaintiffs had not established a cause of action against the City based on a
theory of municipal liability. A finding that a constitutional violation occurred is required to deny
defendants qualified immunity, see Hills v. Kentucky, 457 F.3d 583, 587 (6th Cir. 2006), and to state a
claim of municipal liability. See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001). As
set forth above, plaintiffs have not shown facts sufficient to find that a constitutional violation occurred.
Thus, we need not reach the issues of qualified immunity or municipal liability.