Cheryl Massa v. City of Livonia

STATE OF MICHIGAN

COURT OF APPEALS

CHERYL MASSA, DAMIAN MASSA, JR., UNPUBLISHED
ALISHA MASSA, NATHAN MASSA, and February 2, 2016
ROCHELLE MASSA,

Plaintiffs-Appellants,

v No. 324913
Ingham Circuit Court
CITY OF LIVONIA, SGT. MICHAEL LC No. 14-000984-CZ
MOCKERIDGE, SGT MICHAEL KINGSBURY,
SGT. PATRICK MOUG, DETECTIVE
O’LEARY, DETECTIVE TIMOTHY CHALK,
OFFICER LORA CLAYPOOL, UNKNOWN
POLICE OFFICERS, and LIVONIA POLICE
DEPARTMENT,

Defendants-Appellees.

Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

Plaintiffs appeal by right a November 10, 2014, trial court order granting defendants’
motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8) and (C)(10). For the
reasons set forth in this opinion, we affirm.

A. FACTS

This case arises from a search of plaintiffs’ residential home and property in Mason,
Michigan that defendant Livonia Police Department and the named individual defendant police
officers executed on May 23, 2012, pursuant to a valid search warrant. The search warrant was
issued following an investigation involving plaintiff Damian Massa Jr.’s shipping company and
allegations of organized theft of plastic shipping pallets used in the automotive industry. The
warrant authorized police to search “[t]he entire premises and curtilage and all storage areas.”
Plaintiffs do not dispute defendants’ assertion that the premises included a two-story single
family residence on a 15-acre plot of land that included two pole barns. The warrant authorized
police to seize a broad range of property including, among other things, business records,
vehicles, trailers, weapons and “[a]ny and all items purchased with proceeds gained through
criminal enterprise.”

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 According to plaintiffs, at about 7:30 a.m. on May 23, 2012, pursuant to the warrant,
approximately 20 officers from defendant Livonia Police Department conducted a 14-hour
search of the Massa property. Plaintiffs Damian and Cheryl Massa and their daughter Alisha
Massa, a veterinary school student, were at home when police arrived. The three were informed
that they were not under arrest, but were detained at the home for the entire duration of the
search. Police allegedly refused to allow Alisha to attend a summer training position at
veterinary school and refused to allow her to call to inform the school to report her absence.

As police arrived, plaintiff Rochelle Massa, age 16, had just departed to drive to high
school. According to plaintiffs, Livonia officers in an unmarked vehicle pursued her. Unaware
that the unmarked vehicle was a police vehicle, Rochelle tried to speed away, but the officers
engaged in a high-speed chase until a Mason County marked patrol car effectuated a traffic stop.
The officers eventually allowed Rochelle to proceed to high school. In subsequent court filings,
plaintiffs alleged that officers approached Rochelle with guns drawn, forced her out of her
vehicle, and required her to sit in the police cruiser before allowing her to proceed to school.

In addition, at some point, plaintiff Nathan Massa age 19, arrived home from his college
dorm while police were conducting the search. Plaintiffs alleged that, upon his arrival, police
surrounded his pickup truck with guns drawn and ordered Nathan inside the house where they
detained him for the duration of the search. Police refused to allow Nathan to attend a job
interview and they allegedly searched his vehicle and left personal belongings in the front yard.

According to plaintiffs Damian, Cheryl, Alisha, and Nathan, they were detained inside
the home for 14 hours where they were required to sit on a sofa “without food or water and
denied the use of a bathroom unless given permission and accompanied by an officer - - which
was mostly denied throughout the day.” Plaintiffs alleged that defendants refused to allow
Cheryl to call her attorney, refused to allow her to use her phone, and grabbed an iPad out of her
hand while she was sitting on the couch. Plaintiffs also alleged that defendants: left trash and
items strewn throughout the house, left food in the kitchen out to spoil, verbally harassed Alisha
by telling her that they owned everything in the house until she began “hysterically crying,”
threw plaintiffs’ fresh produce and meat into the dirt and left it to spoil and rot for hours,
forcefully removed televisions and electronics from the walls and homes “damaging both the
items and the structure of the home,” and intentionally tracked mud and water in the home.

On November 7, 2012, plaintiffs commenced this suit.1 Plaintiffs did not contest the
validity of the search warrant on its face, and instead alleged that the manner in which police
conducted the search violated their constitutional rights, constituted gross negligence and
amounted to tortious conduct. Thereafter, plaintiffs stipulated to dismiss all of their federal
claims. The state law claims in plaintiffs’ amended complaint were as follows:2 (1) violation of

1
The suit was eventually removed to federal court before plaintiffs stipulated to dismiss all of
their federal claims. The case was remanded to the Wayne Circuit Court before the court granted
defendants’ motion to change venue to Ingham Circuit Court.
2
Plaintiffs filed a second-amended complaint and added claims alleging violations of the state
constitution; however, the trial court granted defendants’ motion to strike the second-amended

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MCL 764.2a for failing to have a local officer accompany the Livonia officers during the search
outside Livonia’s jurisdiction; (2) gross negligence; (3) false arrest/false imprisonment; (4)
assault; (5) conversion; and (6) Intentional Infliction of Emotional Distress (IIED).

Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) (C)(8) and
(C)(10). Defendants argued that the City and Livonia Police Department were one entity that
was entitled to governmental immunity because the alleged wrongful conduct occurred when the
City was engaged in a governmental function. With respect to the individual officers, defendants
argued that the gross negligence and the intentional tort claims were barred by governmental
immunity. Defendants argued that the officers’ conduct was lawful and done in furtherance of
executing the search warrant and the officers did not act in bad faith during the search.

Defendants argued that claims involving the traffic stop of Rochelle failed where a
Mason County officer, as opposed to any of the named defendants, effectuated the traffic stop.
In addition, defendants argued that all claims against defendant Sergeant Michael Mockeridge
should be dismissed where he was not present at the Massa residence during the search.
Defendants attached Mockeridge’s affidavit in support of this argument wherein Mockeridge
averred that he was not present at the Massa residence during the search. Defendants also argued
that plaintiffs’ claim under MCL 764.21a failed where the statute did not authorize an
independent cause of action and where at least two deputies from the Ingham County Sheriff’s
Department accompanied the Livonia officers during the search. Defendants attached the
affidavit of defendant Sergeant Patrick Moug to support this argument.

On November 10, 2014, the trial court held a motion hearing and granted defendants’
motion for summary disposition in its entirety. The court treated the Livonia Police Department
and the City as one entity, explaining that the City was entitled to governmental immunity where
the general nature of the activity giving rise to the claims involved the governmental function of
maintaining a police department. The court held that plaintiffs claim under MCL 764.2a failed
where the statute did not authorize an independent cause of action and where Moug’s affidavit
was uncontested and showed that Ingham County officers participated in the search.

Next, the court dismissed defendant Mockeridge where his affidavit was undisputed and
established that he was not at the scene during the search and where there were no allegations
that Mockeridge acted in bad faith assuming, as plaintiffs’ argued, that he submitted the affidavit
in support of the search warrant. The court proceeded to grant summary disposition in favor of
the remaining individual officers, finding that plaintiffs’ claims were barred by governmental
immunity. The court held that the facts alleged could not amount to false arrest/imprisonment
where Michigan v Summers, 425 US 692; 101 S Ct 2587; 69 L Ed 2d 349 (1981), and Muehler v
Mena, 544 US 93; 125 S Ct 1465; 161 L Ed 2d 299 (2005), established a categorical rule that
officers may detain occupants of a home during the execution of a search warrant. Otherwise,
the alleged facts did not show unreasonableness.

complaint and the case proceeded on plaintiffs’ amended complaint. The motion to strike is not
at issue in this appeal.

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 With respect to gross negligence, the court found that, at best, the alleged facts
established that the officers acted in a negligent or careless manner. Similarly, the court held that
the alleged facts failed to support any of the alleged intentional tort claims. The court found that
Ingham County officers effectuated the traffic stop of Rochelle, thus, that claim failed as to the
Livonia officers. On November 10, 2014, the court entered a written order granting summary
disposition in favor of defendants. This appeal ensued.

B. STANDARDS OF REVIEW

Plaintiffs contend that the trial court erred in granting summary disposition in favor of
defendants.

We review de novo a trial court’s ruling on a motion for summary disposition. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The trial court granted summary
disposition pursuant to MCR 2.116(C)(7), (8) and (10). Summary disposition is proper under
MCR 2.116(C)(7) where a party enjoys immunity under the law. “In determining whether
summary disposition under MCR 2.116(C)(7) is appropriate, a court considers all documentary
evidence submitted by the parties, accepting as true the contents of the complaint unless
affidavits or other appropriate documents specifically contradict them.” Blue Harvest, Inc v.
Dep’t of Trans, 288 Mich App 267, 271; 792 NW2d 798 (2010). “If the facts are not in dispute
and reasonable minds could not differ concerning the legal effect of those facts, whether a claim
is barred by immunity is a question for the court to decide as a matter of law.” Id. (quotation
marks and citation omitted).

Summary disposition is proper under MCR 2.116(C)(8) where the alleged claims are “so
clearly unenforceable as a matter of law that no factual development could possibly justify
recovery.” Maiden, 461 Mich at 119 (quotation marks and citation omitted). Summary
disposition is proper under MCR 2.116(C)(10) where, when viewed in a light most favorable to
the non-moving party, “the proffered evidence fails to establish a genuine issue regarding any
material fact.” Id. at 120.

C. ANALYSIS

I. STATE CONSTITUTIONAL CLAIMS

At the outset, we note that plaintiffs dedicate a significant portion of their brief to arguing
the validity of their state constitutional claims. These arguments are baseless. Plaintiffs did not
allege any state constitutional claims in their amended complaint. Plaintiffs attempted to add
state constitutional claims to a second-amended complaint, but the circuit court granted
defendants’ motion to strike the second-amended complaint and indicated that it would proceed
to address defendants’ motion for summary disposition as to plaintiffs’ amended complaint.
Plaintiffs do not appeal the circuit court’s ruling on the motion to strike; thus, this appeal turns
on the claims set forth in plaintiffs’ amended complaint. The amended complaint contained a
gross negligence claim, tort claims, and a claim alleging a violation of MCL 764.2a. It did not,
however, contain any state constitutional claims. Moreover, as defendants correctly point out,
our Supreme Court has not recognized a private cause of action against a municipality or

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individual governmental employees based on an alleged violation of the state constitution. See
Jones v Powell, 462 Mich 329, 335; 612 NW2d 423 (2000).

II. MCL 764.2a

Plaintiffs alleged defendants violated MCL 764.2a, which provides in relevant part as
follows:

(1) A peace officer of a county, city, village, township, or university of
this state may exercise the authority and powers of a peace officer outside the
geographical boundaries of the officer’s county, city, village, township, or
university under any of the following circumstances:

***

(b) If the officer is enforcing the laws of this state in conjunction with a
peace officer of any other county, city, village, township, or university in which
the officer may be. [Emphasis added.]

Plaintiffs alleged that defendants, Livonia police officers, effectuated a search of their
home in Mason, Michigan, which is outside of Livonia’s jurisdiction. Plaintiffs alleged that
defendants did not conduct the operation in conjunction with local Mason authorities or Ingham
County Sheriff’s Deputies in violation of MCL 764.2a(1)(b).

The trial court properly granted summary disposition as to plaintiffs’ claim under MCL
764.2a. Plaintiffs fail to cite any authority to support that MCL 764.2a confers a private cause of
action on which plaintiffs can recover damages. Moreover, even if the statute did hypothetically
confer a private cause of action, the trial court properly granted summary disposition as to this
claim pursuant to MCR 2.116(C)(10).

Plaintiffs failed to submit any documentary evidence to counter Moug’s affidavit
averring that two Ingham County officers participated in the search. Where the burden of proof
at trial rests on a nonmoving party, in responding to a motion for summary disposition under
MCR 2.116(C)(10), the nonmoving party may not rest on the allegations in the pleadings, but
must “set forth specific facts showing that a genuine issue of material fact exists.” Quinto v
Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). “If the opposing party fails to
present documentary evidence establishing the existence of a material factual dispute, the motion
is properly granted.” Id. at 363. Here, plaintiffs failed to offer any documentary evidence in
response to Moug’s affidavit. Therefore, there were no facts to dispute that Ingham County
officers accompanied defendants during the search and the trial court properly dismissed any
claim under MCL 764.2a pursuant to MCR 2.116(C)(10). Quinto, 451 Mich at 363.

III. CLAIMS INVOLVING THE CITY

Before addressing the substance of plaintiffs’ claims against the City, we note that in the
lower court plaintiffs did not dispute that the Livonia Police Department and the City were one in
the same entities and the trial court treated both defendants as a single entity. Therefore, for
purposes of this appeal, we will refer to both entities collectively as “the City.”

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 Under the Government Tort Liability Act (GTLA), MCL 691.1401 et seq., “[a]bsent a
statutory exception, a governmental agency is immune from tort liability when it exercises or
discharges a governmental function.” Maskery v Bd of Regents, 468 Mich 609, 613; 664 NW2d
165 (2003), citing MCL 691.1407(1). Because plaintiffs did not allege that a statutory exception
applied, if we determine that the City is a governmental agency that was discharging a
governmental function when its agents conducted the search, then the City was entitled to
governmental immunity under the GTLA. Id.

The City is a governmental agency. MCL 691.1401(a) defines “governmental agency” to
include “this state or a political subdivision,” and cities and municipal corporations are “political
subdivisions” for purposes of the GTLA. MCL 691.1401(d) (e).

Regarding whether the City was engaged in a “governmental function,” “[t]he term
‘governmental function’ is to be broadly construed, and the statutory exceptions are to be
narrowly construed.” Maskery, 468 Mich at 613. MCL 691.1401(b) provides:

‘Governmental function’ means an activity that is expressly or impliedly
mandated or authorized by constitution, statute, local charter or ordinance, or
other law. Governmental function includes an activity performed on public or
private property by a sworn law enforcement officer within the scope of the law
enforcement officer’s authority, as directed or assigned by his or her public
employer for the purpose of public safety.

In contrast, “[w]henever a governmental agency engages in an activity which is not expressly or
impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra vires
activity), it is not engaging in the exercise or discharge of a governmental function.” Ross v
Consumers Power Co, 420 Mich 567, 620; 363 NW2d 641 (1984).

In this case, the general activity giving rise to this suit involved the management,
operation and control of a police department, or more specifically, the department’s execution of
a facially-valid search warrant. Maintaining a police force and activity performed by a law
enforcement officer within the scope of his or her authority constitutes a governmental function.
Ross, 420 Mich at 625; MCL 691.1401(b). The officers were acting within their authority as law
enforcement officers when they executed the search warrant. Plaintiffs do not dispute that the
warrant was valid on its face. Thus, the officers had authority to execute the warrant.

Plaintiffs contend that because the officers allegedly engaged in tortious conduct and
gross negligence during execution of the search warrant, the City was not engaged in a
governmental function. This argument lacks merit. “To determine whether a governmental
agency is engaged in a governmental function, the focus must be on the general activity, not the
specific conduct involved at the time of the [alleged] tort.” Pardon v Finkel, 213 Mich App 643,
649; 540 NW2d 774 (1995) (emphasis added). Here, as discussed above, the general activity at
the time of the alleged torts and gross negligence involved police activity that was authorized by
a search warrant. Thus, the City was engaged in a governmental function for purposes of this
case. Id. Because plaintiffs’ did not allege that any statutory exceptions apply, the City was
entitled to immunity and the trial court did not err in granting summary disposition in favor of
the City under MCR 2.116(C)(7). Ross, 420 Mich at 624-625; Pardon, 213 Mich App at 649.

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 IV. CLAIMS INVOLVING DEFENDANT MOCKERIDGE

In their motion for summary disposition, defendants argued that Mockeridge should be
dismissed from the action because he was not present at the time of the search. Defendants
attached Mockeridge’s affidavit to their motion wherein Mockeridge averred that he was at a
different location when officers searched plaintiffs’ property. Plaintiffs did not submit any
documentary evidence to counter the affidavit, but argued that Mockeridge was the affiant for
the search warrant. However, irrespective of whether Mockeridge was the affiant for the search
warrant, in their amended complaint plaintiffs did not contest the validity of the search warrant.
Nor did plaintiffs contend that Mockeridge engaged in wrongful conduct when he allegedly
submitted an affidavit in support of the warrant. Instead, the genesis of plaintiffs’ claims
involved conduct that occurred during execution of the search warrant at plaintiffs’ residence.
Because plaintiffs’ failed to respond with documentary evidence to dispute Mockeridge’s
affidavit, the trial court properly granted summary disposition in favor of Mockeridge pursuant
to MCR 2.116(C)(10). Quinto, 451 Mich at 363.

V. CLAIMS INVOLVING THE REMAINING INDIVIDUAL OFFICERS

The trial court found that the individual officers were entitled to qualified governmental
immunity with respect to plaintiffs’ tort and gross negligence claims. We proceed by addressing
each intentional tort claim before addressing the gross negligence claim.

A. INTENTIONAL TORTS

For lower-level governmental employees such as the officers in this case, the test set
forth in Ross, 420 Mich at 567, governs whether the employee is immune from liability for
intentional torts. Odom v Wayne County, 482 Mich 459, 470, 480; 760 NW2d 217 (2008).
Under the Ross test, a governmental employee is entitled to immunity from intentional tort
claims where he or she has shown 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 480, citing Ross, 420 Mich. at 467.]

Plaintiffs do not dispute that the officers’ actions were discretionary as opposed to
ministerial and plaintiffs do not appear to contest that the actions occurred during the course of
the officers’ employment. Instead, plaintiffs’ argument focuses on the alleged bad faith and
malicious conduct of the officers; plaintiffs tie this aspect of their argument to an argument that
the officers were not acting within the scope of their authority.

For purposes of bad faith and malice, in Odom, our Supreme Court explained that “[t]his
Court has described a lack of good faith as malicious intent, capricious action or corrupt conduct

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or willful and corrupt misconduct.” Odom, 482 Mich at 474 (internal quotations, citations and
footnotes omitted). The Odom Court continued, “[i]n addition, this Court has held that willful
and wanton misconduct is made out only if the conduct alleged shows 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 (quotation marks, citations, and footnotes omitted).

We proceed by determining whether the trial court properly held that the individual
officers were immune from each intentional tort claim.

i. False Imprisonment/Arrest

In their complaint, plaintiffs’ alleged that the detentions of Damian, Cheryl, Alisha and
Nathan for the duration of the search amounted to false imprisonment. On appeal, plaintiffs also
argue that the traffic stop of Rochelle amounted to false arrest/imprisonment.

“To prevail on a claim of false arrest or false imprisonment, a plaintiff must show that the
arrest was not legal . . . .” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 18; 672
NW2d 351 (2003). “If the arrest was legal, there has not been a false arrest or a false
imprisonment.” Id. False imprisonment requires a showing of unlawful restraint—i.e. the
defendant lacked any authority or right to confine the plaintiff. Moore v Detroit, 252 Mich App
384, 387; 652 NW2d 688 (2002) (quotation marks and citations omitted).

On appeal, plaintiffs contend that the detentions violated the Fourth Amendment and
therefore amounted to an unlawful imprisonment. Specifically, plaintiffs contend that the 14
hour detention was unreasonable and therefore did not comply with Summers, 452 US at 692. In
doing so, plaintiffs essentially couch a Fourth Amendment/42 USC § 1983 claim as a false
imprisonment claim. However, plaintiffs waived any argument with respect to the Fourth
Amendment when they stipulated to dismiss all of their federal claims. Plaintiffs cannot agree to
dismiss their alleged violations of federal law in the lower court only to argue on appeal that
violation of federal law forms the basis of their state false imprisonment claim. See
Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989) (“[a] party is not
allowed to assign as error on appeal something which his or her own counsel deemed proper at
trial since to do so would permit the party to harbor error as an appellate parachute.”)
Nevertheless, we will address the merits of plaintiffs’ argument.

In Summers, 452 US at 693, as Detroit police officers were preparing to execute a search
warrant to search a residential home, they encountered the respondent as he was leaving the
home. The officers detained him inside the home for the duration of the search and then arrested
him after finding narcotics inside the home and after ascertaining that the respondent was the
home owner. Id. In addition, police conducted a pat-down search of the respondent prior to his
arrest and discovered heroin. Id. The respondent moved to suppress evidence of the heroin,
arguing that the officers violated his Fourth Amendment rights in part because the initial
detention amounted to an unlawful seizure of his person. Id. at 693-694.

The United States Supreme Court held that during the execution of a valid search warrant
for contraband, police officers could detain occupants of the premises, explaining:

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 for Fourth Amendment purposes, we hold that a warrant to search for
contraband founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper search is
conducted. [Summers, 452 US at 705 (footnotes omitted).]

The Court reasoned that such detentions were proper because of the legitimate law enforcement
interests at stake including the interest in preventing flight, minimizing the risk of harm to the
officers and the occupants, and having the occupants present to facilitate the orderly completion
of the search. Id. at 701-702. The Summers Court determined that

[s]uch detentions are appropriate . . . because the character of the
additional intrusion caused by detention is slight and because the justifications for
detention are substantial . . . [T]he detention of an occupant ‘is surely less
intrusive than the search itself,’ and the presence of a warrant assures that a
neutral magistrate has determined that probable cause exists to search the home.
[Muehler, 544 US at 98, quoting Summers, 452 US at 701.]

More recently, in Muehler, 544 US at 93, the Court again addressed the validity of a
detention incident to a lawful search. In that case, following a gang-related drive-by shooting,
police obtained a search warrant for a residential home at 1363 Patricia Avenue where a
suspected gang member resided. Id. at 95. The warrant authorized a “broad search of the house
and premises for among other things, deadly weapons and evidence of gang membership.” Id. at
95-96. When police officers arrived at the home to effectuate the search, they encountered the
respondent, Iris Mena, who resided there with several other people. Id. Police handcuffed Mena
and the other occupants of the home and brought them to the garage where an officer supervised
the occupants for the duration of the two to three hour search. Id. at 95, 100. The supervising
officer questioned Mena and others about their immigration status and Mena provided her
documentation to the officer. Id. at 95. When the search concluded, the officers removed
Mena’s handcuffs and departed the home. Id.

Thereafter, Mena commenced a civil action under 42 USC § 1983, arguing, inter alia,
that detaining her in handcuffs for the duration of the search violated her Fourth Amendment
rights. Id. at 95. The United States Supreme Court rejected this argument, holding that the
detention was proper under Summers, 452 US at 692; the Court explained:

Mena’s detention was, under Summers, plainly permissible. An officer’s
authority to detain incident to a search is categorical; it does not depend on the
quantum of proof justifying detention or the extent of the intrusion to be imposed
by the seizure. Thus, Mena’s detention for the duration of the search was
reasonable under Summers because a warrant existed to search 1363 Patricia
Avenue and she was an occupant of that address at the time of the search.
[Muehler, 544 US at 98 (emphasis added) (quotation marks, citations and
footnotes omitted).]

After concluding that the detention in and of itself was proper under Summers, the
Muehler Court proceeded to address whether the manner in which police effectuated the

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detention—i.e. the use of handcuffs for the entire duration of the search—nevertheless rendered
the detention unconstitutional. The Court explained:

Inherent in Summers’ authorization to detain an occupant of the place to
be searched is the authority to use reasonable force to effectuate the detention.
See Graham v Connor, 490 US 386, 396, 104 L Ed 2d 443, 109 S Ct 1865 (1989)
(“Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it”). Indeed, Summers itself
stressed that the risk of harm to officers and occupants is minimized ‘if the
officers routinely exercise unquestioned command of the situation.’ [Muehler,
544 US at 98-99, quoting Summers, 452 US at 703.]

The Muehler Court concluded that the officers acted reasonably when they kept Mena
and the three other occupants handcuffed in the garage for the duration of the “2-to 3-hour”
search. Muehler, 544 US at 99-100. That Mena was not a suspect did not change the analysis;
rather, the Court explained, “Summers makes clear that when a neutral magistrate has determined
police have probable cause to believe contraband exists, ‘[t]he connection of an occupant to [a]
home’ alone ‘justifies a detention of that occupant.’” Muehler, 544 US at 100 n 2, quoting
Summers, 452 US at 703-704. Moreover, the Court noted:

[T]his was no ordinary search. The governmental interests in not only
detaining, but using handcuffs, are at their maximum when, as here, a warrant
authorizes a search for weapons and a wanted gang member resides on the
premises. In such inherently dangerous situations, the use of handcuffs minimizes
the risk of harm to both officers and occupants. [Muehler, 544 US at 100
(citations omitted).]

In addition, the Court rejected Mena’s argument that the duration of the use of the
handcuffs rendered the detention unreasonable. Id. at 100. The Court acknowledged that “[t]he
duration of a detention can, of course, affect the balance of interests under Graham,” but
concluded, “the 2-to 3-hour detention in handcuffs in this case does not outweigh the
government’s continuing safety interests” given that the search involved “a search of a gang
house for dangerous weapons.” Id.

Two years after its decision in Muehler, 544 US at 93, in a per curiam opinion, in Los
Angeles Co v Rettele, 550 US 609, 613-614; 127 S Ct 1989; 167 L Ed 2d 974 (2007), the
Supreme Court explained:

In executing a search warrant officers may take reasonable action to
secure the premises and to ensure their own safety and the efficacy of the search .
. . . The test of reasonableness under the Fourth Amendment is an objective one
[] Unreasonable actions include the use of excessive force or restraints that cause
unnecessary pain or are imposed for a prolonged and unnecessary period of time.
[Id. (citations omitted).]

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The Court went on to note that, “[w]e have recognized that special circumstances, or possibly a
prolonged detention, might render a search unreasonable.” Id. at 615.

In this case, the search warrant authorized the officers to search for evidence of an
alleged criminal enterprise and to seize weapons.3 Pursuant to Summers, during the execution of
the search warrant, police had the authority to detain individuals with a connection to the
premises for purposes of their safety and the efficacy of the search. Rettele, 550 US at 609;
Muehler, 544 US at 100 n 2; Summers, 452 US at 703-704. Here, Damian, Cheryl, Alisha and
Nathan all had a connection to the premises as they were at the home when police arrived to
conduct the search or, in Nathan’s case, arrived during the search. Thus, police had the authority
to detain plaintiffs’ during the search. Muehler, 544 US at 100.

With respect to the traffic stop of Rochelle, the only documentary evidence submitted by
the parties—Moug’s affidavit—established that Ingham County officers, not defendants,
effectuated the traffic stop. By failing to submit evidence to contest Moug’s affidavit, plaintiffs
failed to meet their burden to create a question of fact and summary disposition as to any alleged
false imprisonment/arrest claim of Rochelle was proper. MCR 2.116(C)(10); Quinto, 451 Mich
at 363.

Plaintiffs argue that the facts “don’t support lack of involvement of Defendants,” in the
traffic stop and in the lower court plaintiffs argued that they named “unknown officers” as
defendants such that the officers effectuating the stop were part of this action. However, in
another part of their pleading, plaintiffs alleged that defendants were Livonia officers who acted
without any participation of Ingham County officers in violation of MCL 764.2a. Thus, because
plaintiffs did not name Ingham County officers in their pleading and failed to submit evidence to
contest Moug’s affidavit, summary disposition was proper under MCR 2.116(C)(10).

3
Summers drew a distinction between “contraband” and “evidence.” In a footnote, the Summers
Court noted, “[w]e do not decide whether the same result would be justified if the search warrant
merely authorized a search for evidence.” Id. at 705 n 20, citing Zurcher v Stanford Daily, 436
US 547; 98 S Ct 1970; 56 L Ed 2d 525 (1978) (a case involving police search of a newspaper
headquarters for photographs of suspected criminals). However, subsequent to Summers, the
Court in Muehler, 544 US at 93 explained that “[a]n officer’s authority to detain incident to a
search is categorical; it does not depend on the quantum of proof justifying detention or the
extent of the intrusion to be imposed by the seizure” (emphasis added). The Muehler Court did
not draw a distinction between evidence and contraband and the Court’s language supports that
Summers created a broad categorical rule allowing detention incident to a lawful search.
Similarly, in Rettele, 550 US at 609, the Court did not draw a distinction between contraband and
evidence when it held that “[i]n executing a search warrant officers may take reasonable action
to secure the premises and to ensure their own safety and the efficacy of the search.” Post-
Rettele, for purposes of Summers, courts have “rendered the evidence/contraband distinction
immaterial where occupants of a building are detained to ensure the safety of the officers
executing a search warrant.” US v Allen, 618 F 3d 404, 410 (CA 3, 2010).

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 Moreover, even assuming that plaintiffs included the officers who effectuated the stop as
defendants, the complaint asserted that Rochelle had “just left her home,” when police arrived to
conduct the search and then began pursuing Rochelle. Thus, Rochelle had a connection to the
premises to be searched such that the officers could have reasonably believed they had authority
to stop and detain Rochelle under Summers. Muehler, 544 US at 100 n 2. The facts do not
support a reasonable inference that the officers acted in bad faith or with malice in effectuating
the stop and the officers were entitled to immunity with respect to the false imprisonment claim
involving Rochelle. Odom, 482 Mich at 480.

Plaintiffs contend that the duration of the detentions of Damian, Cheryl, Alisha and
Nathan were unreasonable and therefore violated the Fourth Amendment such that the detentions
amounted to unlawful imprisonment. Plaintiffs cite Leveto v Lapina, 258 F 3d 156 (CA 3, 2001),
in support of their argument.

In Leveto,

agents of the Internal Revenue Service, as part of an investigation into a
doctor’s tax practices, carried out a search warrant at the doctor’s office, detained
him and his wife for almost eight hours, restricted them from communicating with
others for the entire period, continually interrogated them, subjected the doctor to
‘the inconvenience and indignity of a forced ride with IRS agents to his home and
back to his office,’ and ‘prevented [him] from responding to client needs.’
[United States v Allen, 618 F 3d 404, 410 (CA 3, 2010), quoting Leveto, 258 F 3d
at 160, 169.]

The Leveto Court held that the seizure violated the Fourth Amendment, reasoning that the
seizure was highly intrusive, was prolonged in that it lasted eight hours, and “did little to advance
the law enforcement interests that were found to justify the detention in Summers.” Leveto, 258
F 3d at 169-170. Specifically, the Court reasoned that “there was no compelling need to detain
Dr. Leveto to protect the safety of the agents,” because it was not an investigation “into a type of
offense often accompanied by violence.” Id. at 171. Nevertheless, the Leveto Court concluded
that the IRS agents were entitled to qualified immunity under federal law because, despite the
unconstitutional seizure, “a reasonable agent could have believed, in light of the case law at the
time, that the detention[] . . . [was] lawful.” Id. at 172.

In this case, like in Leveto, even if we were to agree with plaintiffs and conclude that the
complaint supported a reasonable inference that the detentions were objectively unreasonable,
the facts do not support that the officers acted outside the scope of their authority or that the
officers acted in bad faith or with malice for purposes of the Ross test. Odom, 482 Mich at 480.
Here, plaintiffs do not dispute that their residence included 15 acres of land, two pole barns, and
a two-story residential home. The search warrant authorized police to seize weapons and
referenced a criminal organization. Thus, the officers could have reasonably believed that it was
necessary for their safety to detain all of the occupants of the home for the duration of the search
and to investigate Rochelle’s vehicle as it departed when police arrived at the scene. The
officers could have reasonably concluded that it would be interruptive and pose a danger if
people were arriving and departing from the premises during the search. Moreover, officers
allowed plaintiffs to use the restroom and, unlike in Leveto, there are no allegations that officers

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moved plaintiffs to a different location, interrogated anyone, or used handcuffs. In short, given
all of the circumstances, the facts alleged in the complaint fail to create a reasonable inference
that the officers acted outside of their authority or acted in bad faith or with malice when they
detained plaintiffs. Odom, 482 Mich at 480. Therefore, plaintiffs failed to allege facts to support
an unlawful imprisonment claim and the trial court properly granted summary disposition on that
claim pursuant to MCR 2.116(C)(7) and (C)(8).

ii. Conversion

In their complaint, plaintiffs alleged that defendants wrongfully seized property including
farm machinery, personal vehicles, a horse trailer, saddles, all bank accounts, all electronic
equipment, an iPad, phones, and computer games. Plaintiffs alleged that the search warrant did
not provide “any guidelines to determine the property’s ownership or origin,” and therefore
amounted to conversion.

“In Michigan, conversion is defined generally as any distinct act of domain wrongfully
exerted over another’s personal property in denial of or inconsistent with the rights therein.”
Sarver v Detroit Edison Co, 225 Mich App 580, 585; 571 NW2d 759 (1997) (quotation marks
and citation omitted).

In this case, even assuming all of the allegations in the complaint are true, because the
facts do not support a reasonable inference that the officers acted outside their authority, acted in
bad faith, or acted with malice in seizing property during the search, the officers were entitled to
qualified immunity as to the conversion claim. Odom, 482 Mich at 480. Here, as noted above,
the search warrant was very broad and it authorized the officers to seize a wide array of property.
Plaintiffs did not contest the validity of the search warrant on its face.4 Thus, the officers were
acting under the authority of the law when they seized the items from plaintiffs’ property.

Moreover, given the breadth of authority to seize items under the terms of the search
warrant, while police perhaps were negligent in pulling televisions off the wall, the evidence
does not support a reasonable inference that the officers acted in bad faith or with malice when
they seized the property. Odom, 482 Mich at 480. With respect to the seizure of items, there are
no allegations in the complaint to support that the officers acted with “malicious intent,” or
engaged in “capricious action or corrupt conduct or willful and corrupt misconduct.” Id. at 474.
The evidence does not support a reasonable inference that the officers intended to harm plaintiffs
or acted with “such indifference to whether harm will result as to be the equivalent of a
willingness that it does.” Id. Accordingly, there was no evidence to support that the officers
unlawfully seized any property and plaintiffs’ conversion claim failed as a matter of law. Sarver,
225 Mich App at 585. Summary disposition as to plaintiffs’ conversion claim was proper under
MCR 2.116(C)(7) and (C)(8).

4
In their brief on appeal, plaintiffs assert that the warrant lacked specificity. However, plaintiffs
did not challenge the validity of the warrant in the lower court. Plaintiffs cannot now challenge
the validity of the warrant for the first time on appeal. See Reed v Reed, 265 Mich App 131,
150; 693 NW2d 825 (2005).

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 iii. Assault

Plaintiffs alleged that defendants assaulted Rochelle when they engaged in a pursuit,
pulled her over, and ordered her into a police vehicle at gunpoint, surrounded the vehicle driven
by Nathan at gunpoint and ordered him to exit the vehicle, and forcibly grabbed an iPad from
Cheryl.

“An assault is defined as any intentional unlawful offer of corporal injury to another
person by force, or force unlawfully directed toward the person of another, under circumstances
which create a well-founded apprehension of imminent contact, coupled with the apparent
present ability to accomplish the contact.” Espinoza v Thomas, 189 Mich App 110, 119; 472
NW2d 16 (1991).

With respect to the allegations involving Rochelle, as noted above, plaintiffs’ failed to
meet their burden to create a question of fact to support that defendants were the officers who
effectuated the traffic stop and summary disposition was proper as to the alleged assault
involving Rochelle. See Quinto, 451 Mich at 363. Moreover, given that Rochelle had just left
the premises when police arrived, the facts do not support a reasonable inference that the officers
acted outside their authority, acted in bad faith, or acted with malice when they followed
Rochelle and effectuated a traffic stop. Muehler, 544 US at 100 n 2. The officers were entitled
to immunity with respect to the assault claim involving Rochelle. Odom, 482 Mich at 480.

With respect to the allegations involving Cheryl, as noted above, the officers had
authority to seize the iPad pursuant to the search warrant. Therefore, plaintiffs cannot show that
grabbing the iPad from her hand was unlawful or amounted to bad faith or malice and summary
disposition as to this claim was proper under MCR 2.116(C)(7) and (C)(8). Odom, 482 Mich at
474; Espinoza, 189 Mich App at 119.

Finally, with respect to allegations involving Nathan, as discussed above, the officers had
authority to detain individuals connected to the premises during execution of the search warrant.
Muehler, 544 US at 100. The alleged facts in the complaint do not support a reasonable
inference that the officers’ use of their weapons was unlawful for purposes of assault. Espinoza,
189 Mich App at 119. Rather, the officers had authority to use reasonable force to effectuate the
detention of individuals at the premises incident to the valid search warrant. Muehler, 544 US at
98-99. The search warrant in this case included an authorization to seize weapons. Thus, it was
reasonable for officers to use force to detain Nathan when he drove up to the house while
officers were searching. It was reasonable for officers to fear for their safety. The facts show
that officers were unaware of who and what was inside of the pickup truck such that it was
reasonable for officers to hold Nathan at gunpoint when he drove up to the house. See e.g.
Hinojosa v City of Terrell, 834 F 2d 1223, 1231 (CA 5, 1988) (noting, “to subject such displays
of force to second guessing by a jury may increase the likelihood that the officer will wait until
the situation escalates further before drawing his gun, and thereby end up having to (or believing
he has to) shoot to protect himself or others.”); Muehler, 544 US at 98-99 (noting that “the risk
of harm to officers and occupants is minimized if the officers routinely exercise unquestioned
command of the situation”) (quotation marks and citations omitted). In short, plaintiffs’
allegations regarding the officers’ conduct in regard to Nathan fails to create an issue of fact
regarding whether the officers acted with bad faith or malice; thus, defendants were entitled to

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immunity with respect to the alleged assault of Nathan. Odom, 482 Mich at 474, 480; MCR
2.116(C)(7).

iv. IIED

In their complaint, plaintiffs alleged that the officers’ conduct in the aggregate amounted
to IIED in that it was “extreme, outrageous, and of such character as not to be tolerated by a
civilized society.”

“To establish a prima facie claim of intentional infliction of emotional distress, the
plaintiff must present evidence of (1) the defendant’s extreme and outrageous conduct, (2) the
defendant’s intent or recklessness, (3) causation, and (4) the severe emotional distress of the
plaintiff.” Lucas v Awaad, 299 Mich App 345, 359; 830 NW2d 141 (2013) (quotation marks and
citation omitted). Extreme and outrageous conduct is conduct “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Doe v Mills, 212 Mich App 73, 91;
536 NW2d 824 (1995). This does not include “mere insults, indignities, threats, annoyances,
petty oppressions, and other trivialities.” Id.

As discussed above, the facts alleged in plaintiffs’ complaint do not create an issue of fact
to support that the officers acted outside their authority, engaged in bad faith or acted with
malice. For the same reasons, plaintiffs IIED claim fails in that the alleged facts do not support a
reasonable inference that the officers engaged in extreme and outrageous conduct. Mills, 212
Mich App at 92. Rather, the facts show that the officers effectuated a lawful search of plaintiffs’
premises and were acting under the authority of the law when they detained plaintiffs for the
duration of the search. At best, the complaint contained questions of fact regarding whether the
officers were negligent in the manner they conducted the search. The officers could have been
more careful when they removed the televisions from the wall, they could have taken care not to
leave trash and items strewn about the premises, and they could have wiped their boots outside to
minimize the dirt they tracked into the home. However, the nature of the activity involved was
bound to disrupt plaintiffs’ home and cause inconvenience. Here, a team of 20 officers was
tasked with searching a 15-acre parcel of property that included two barns and a two-story home.
The officers were bound to track some dirt and mud into the home and to disrupt and dishevel
the interior of the home. There was no issue of fact to support that the officers engaged in
extreme and outrageous conduct and the trial court did not err in granting summary disposition
as to plaintiffs’ IIED claim. Lucas, 299 Mich App at 359.

In sum, the trial court did not err in granting summary disposition in favor of the
individual defendant officers as to all of plaintiffs’ intentional tort claims.

B. GROSS NEGLIGENCE

In their complaint, plaintiffs alleged that the officers were grossly negligent where their
conduct “was so reckless that it demonstrated a substantial lack of concern for Plaintiffs persons
or property rights.” Specifically, plaintiffs alleged that defendants acted grossly negligent as
follows: throwing Nathan’s belongings out of his car onto the ground, throwing fresh produce
and meat into the dirt where it spoiled, eating Subway and then leaving trash and waste strewn

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about the home and property, forcefully removing televisions and electronics from the home and
walls causing damage, tracking water, mud and horse manure throughout the house causing the
carpet to be ruined and necessitating multiple steam cleanings, informing Alisha that they owned
everything at the home causing her to cry, and detaining plaintiffs for the duration of the search
with limited access to the bathroom. In their brief, plaintiffs also argue that the officers were
grossly negligent in pursuing Rochelle in an unmarked vehicle.

For claims involving negligent torts, MCL 691.1407(2) provides that a governmental
officer or employee is immune from liability 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.

“‘Gross negligence’ means conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a). “Evidence of ordinary negligence
does not create a material question of fact concerning gross negligence,” Maiden, 461 Mich at
122, and “[s]imply alleging that an actor could have done more is insufficient under Michigan
law, because, with the benefit of hindsight, a claim can always be made that extra precautions
could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333
(2004). Rather, gross negligence “suggests . . . almost a willful disregard of precautions or
measures to attend to safety and a singular disregard for substantial risks. It is as though, if an
objective observer watched the actor, he could conclude, reasonably, that the actor simply did
not care about the safety or welfare of those in his charge.” Id.

In this case, as discussed above, the governmental agency in this case was involved in the
governmental function of conducting police operations. Odom, 482 Mich at 479-480. Similarly,
there were no facts to dispute that the officers reasonably believed that they were acting within
the scope of their authority where the officers had a valid search warrant. Id. Furthermore, the
alleged facts do not support a reasonable inference that the officers engaged in grossly negligent
conduct during their execution of the search warrant. Id. With respect to the detention of
plaintiffs and pursuit of Rochelle, as previously noted, the officers did not act in bad faith and a
rational officer could have concluded that it was reasonable to detain plaintiffs’ incident to the
search warrant under Summers, 425 Mich at 692. The search involved a substantial amount of
property including 15 acres, two pole barns, farm equipment, and a two-story home. The search
warrant authorized the seizure of a significant amount of property including documents related to
organized crime. The officers did not interrogate plaintiffs, they did not handcuff plaintiffs,
transport them in police vehicles or detain them longer than necessary to complete the search.
Similarly, with respect to drawing their guns on Nathan, the officers had authority under the law
to use force, or a show of force, to effectuate the detentions of individuals connected to the
premises. Muehler, 544 US at 98-99.

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 In regard to plaintiffs’ allegations that the officers threw belongings on the ground, left
food out to spoil, left trash and waste strewn about the house, forcefully removed televisions,
tracked mud and horse manure throughout the house, yelled at Alisha, and generally were
grossly negligent in their search, these facts support, at best, that the officers “could have done
more” to take precautions during the search, which is insufficient to create a reasonable inference
of gross negligence. See Tarlea, 263 Mich App at 90 (“with the benefit of hindsight, a claim can
always be made that extra precautions could have influenced the result.”) These allegations at
best support a reasonable inference that the officers were negligent or careless in conducting the
search; however, they do not create a reasonable inference of “conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a).

In short, there was no issue of fact regarding whether the officers reasonably believed
that they were acting within the scope of their authority or to dispute that the governmental
agency in this case, the City, was engaged in the exercise of a governmental function. Similarly,
the alleged facts did not support a reasonable inference that the officers were grossly negligent in
conducting the search. Accordingly, the individual officers were entitled to qualified
governmental immunity as to the gross negligence claim pursuant to MCL 691.1407(2) and
summary disposition as to this claim was proper under MCR 2.116(C)(7).

Affirmed. No costs awarded. MCR 7.219(A).

/s/ Peter D. O’Connell
/s/ Stephen L. Borrello

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