Keyon Harrison v. Curt Vanderkooi

STATE OF MICHIGAN

COURT OF APPEALS

KEYON HARRISON, UNPUBLISHED
May 23, 2017
Plaintiff-Appellant,
and

THE AMERICAN CIVIL LIBERTIES UNION
OF MICHIGAN,

Amicus Curiae,

v No. 330537
Kent Circuit Court
CURT VANDERKOOI and CITY OF GRAND LC No. 14-002166-NO
RAPIDS,

Defendants-Appellees.

Before: WILDER, P.J., and BOONSTRA and O’BRIEN, JJ.

PER CURIAM.

Plaintiff appeals by right the trial court’s order denying his motion for partial summary
disposition, granting summary disposition in favor of defendant Captain Curt VanderKooi of the
Grand Rapids Police Department (GRPD) under MCR 2.116(C)(7), (C)(10), and (I)(2), and
granting summary disposition in favor of defendant City of Grand Rapids (the city) under
MCR 2.116(C)(10). Plaintiff also appeals the trial court’s order granting defendants’ motion to
strike plaintiff’s expert. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case presents many of the same issues as Johnson v VanderKooi, ___ Mich App
___; ___ NW2d ___ (2017); in fact, the cases were consolidated in the trial court for purposes of
discovery. Like Johnson, this case involves the application of GRPD’s “photograph and print”
(P&P) procedure during a field interrogation of a minor who lacked official identification. In
both cases, the minor was not charged with a crime. We describe the procedure at issue in more
depth in Johnson. Id. at __.

In this case, VanderKooi made contact with plaintiff after observing him walk up to
another young man and hand him what appeared to be a large “model type engine to a train.”
The young man then rode off on his bicycle carrying the object that plaintiff had handed to him.

-1-
VanderKooi testified that he decided to continue his observation because the exchange “looked
like some kind of transaction between the two.” VanderKooi, who was in an unmarked police
car, followed plaintiff and observed him enter a park. VanderKooi testified that plaintiff’s
behavior in the park seemed “suspicious,” because plaintiff went into a secluded area of the park,
crouched down and began moving his arms.

VanderKooi put out a radio broadcast for an officer to come to the scene and for another
officer to find the individual on the bicycle. VanderKooi parked his vehicle, approached plaintiff
in the park, identified himself, and asked plaintiff what he was doing. VanderKooi testified that
he believed plaintiff said that he was trying to catch birds. VanderKooi further testified that he
asked plaintiff what he had been doing across the street, and plaintiff told him that he was
walking home from school and that the object plaintiff had been carrying, which he described as
the engine of a train, was for a school project. Plaintiff told VanderKooi that he had given the
object to a friend who was going to return it to another person. According to VanderKooi, there
had been a number of larcenies and home invasions in that area, especially after school, and he
was suspicious that plaintiff’s story was not truthful. VanderKooi admitted that, if true,
plaintiff’s story did not reveal any illegal conduct.

When asked why he did not believe plaintiff, VanderKooi testified as follows:

Well, because his behavior in the park when I first saw him it just, to me,
looked like he could, he was acting rather unusual and I was suspecting might be
a lookout and that the property was, a lot of times when you get stolen property
they’ll secrete it at different locations near where they have taken it, and they take
things, object by object they take it and deliver it somewhere else. So, that was
what was going through my mind when I saw this transaction, and more so I was
confirming what was going on looking suspicious the way he was in the park in
the woods, wooded area and he was actually kneeling or crouching.

VanderKooi testified that plaintiff was carrying a knapsack, and that he asked for consent to look
inside the knapsack. Plaintiff gave consent, so VanderKooi asked him to open up the knapsack.
Plaintiff opened it up, and VanderKooi looked inside, where he observed school materials.
Plaintiff was not carrying official identification.

At some point after VanderKooi made contact with plaintiff, Officer Luke Nagtzaam and
Sergeant Stephen Labrecque of the GRPD arrived at the scene. VanderKooi testified that he
asked one of the officers to take a picture of plaintiff and that he did not ask for plaintiff’s
fingerprints to be taken. However, VanderKooi testified that he later learned, after this lawsuit
was initiated, that a print was also taken.

Nagtzaam testified that plaintiff consented to a search of his person, and that Labrecque
at some point obtained a P&P from plaintiff. Nagtzaam described the contact between plaintiff
and Captain VanderKooi as “low key and non-confrontational.” Labrecque testified that he
remembered hearing a request for a P&P over the dispatch system, but that he could not
remember who had made the request. Labrecque took plaintiff’s picture with a digital camera
and obtained plaintiff’s thumbprint using a GRPD-issued thumbprint card and inkpad.

-2-
Labrecque testified that the P&P was quick and would not have taken more than two minutes.
Labrecque was not involved with the investigation beyond performing and logging the P&P.

At some point during these events, GRPD Officer Dennis Newton made contact with the
individual on the bicycle, who consented to a search, provided identification, and was eventually
released. Newton testified that someone from plaintiff’s scene reported over the radio that the
two boys’ stories about the object had matched. Newton informed someone at plaintiff’s scene
that the individual on the bicycle no longer possessed the object that VanderKooi had seen.
VanderKooi testified that, once he learned that the other individual did not have the object, he let
plaintiff walk away because the situation did not rise to the level of probable cause.

According to VanderKooi, plaintiff was free to leave during the encounter and could have
left without having his picture taken. VanderKooi testified that he recalled asking plaintiff if it
was “okay if we take a picture, and he said yes.” He testified that no officer would have taken
plaintiff’s picture if he had said “no.” VanderKooi further testified that he did not run plaintiff’s
thumbprint through the Automated Fingerprint Identification System (AFIS) and had no personal
knowledge of any other officer doing so.

Plaintiff testified that he consented to the search of his person and bag. He testified that
VanderKooi told him that he needed to take his picture to identify who he was. Plaintiff further
testified that he said “okay” in a nervous and shaky voice. Plaintiff described the officers’
demeanors during the stop as calm. Plaintiff also testified that he asked why his fingerprint
needed to be taken, and that VanderKooi told him it was “just to clarify again to make sure you
are who you say you are.” Plaintiff testified that he responded “okay.” Plaintiff’s thumbprint
was then taken. Plaintiff testified that VanderKooi told him that he was “good to go” and that
plaintiff shook the officers’ hands before going home. He testified that he was “freaked out” by
the incident and that his mother drove him to and from school for the next two weeks because he
was too scared to walk to school after the incident. Plaintiff was 16 years old at the time of the
incident.

In March 2014, plaintiff filed suit,1 alleging claims against VanderKooi under 42 USC
§ 1981, 42 USC § 1983, and 42 USC § 1988. The complaint alleged that, without probable
cause or lawful consent, VanderKooi had directed an officer to search, photograph, and
thumbprint plaintiff. The complaint further alleged that VanderKooi had taken these actions
because plaintiff was African American; that there was no legal justification for the stop,
detention, search, photograph, or thumbprint; and that VanderKooi’s actions—individually or by
direction to other officers—were unreasonable. The complaint alleged that VanderKooi violated
plaintiff’s right to equal protection and to equal rights under 42 USC § 1981, as well as
plaintiff’s Fourth Amendment rights and his constitutional right to privacy. The complaint
requested damages, the destruction of the photograph and thumbprint, fees and costs, and any
other relief deemed appropriate. Plaintiff later amended his complaint to allege that the P&P

1
The suit was originally brought by plaintiff’s next friend, Anchanet Harrison (his mother), but
was eventually amended to name plaintiff, individually, as the named plaintiff.

-3-
constituted a taking in violation of his Fifth Amendment rights and to add a claim for municipal
liability under 42 USC § 1983.

By stipulated order, plaintiff’s case was consolidated with Johnson for purposes of
discovery only. In 2015, plaintiff moved for partial summary disposition on his Fourth and Fifth
Amendment claims, and on his equal protection claim against VanderKooi and his municipal
liability claim against the city insofar as they related to the P&P procedure.

Both defendants moved for summary disposition. VanderKooi argued that plaintiff’s
constitutional rights were not violated and that he was protected by qualified immunity regarding
plaintiff’s Fourth and Fifth Amendment claims because the law regarding photographing and
fingerprinting during an investigatory stop was not clearly established. VanderKooi further
argued that he had reasonable suspicion to stop plaintiff, or in the alternative that the contact was
a consensual encounter. VanderKooi argued that there was no constitutional right to privacy
applicable to this situation, that plaintiff could not show purposeful racial discrimination, and
that no taking had occurred. The city argued that plaintiff could not establish a violation of his
constitutional rights or that the city was the moving force behind any violation.

Defendants later moved to strike plaintiff’s proposed expert witness, Dr. William Terrill,
a professor of criminal justice at Michigan State University.

Following a motion hearing (which was combined with the motion hearing in Johnson),
trial court issued two separate written opinions and orders regarding the motion to strike Dr.
Terrill and the motions for summary disposition. With respect to the motion to strike, the trial
court held that the proposed testimony was inadmissible under MRE 702 and MRE 403. With
regard to VanderKooi’s motion for summary disposition, the trial court held that the length of the
stop was reasonable and not excessive and that plaintiff had failed to establish a genuine issue of
material fact. The trial court further held that plaintiff had consented to the P&P. The trial court
determined that no Fifth Amendment taking had occurred and that no constitutional right to
privacy apart from that provided by the Fourth Amendment was implicated. The trial court also
held that VanderKooi was protected by qualified immunity regarding plaintiff’s Fourth and Fifth
Amendment claims as related to the P&P procedure. With respect to the § 1981 and equal
protection claims, the trial court held that plaintiff had failed to provide evidence of a
discriminatory purpose. Accordingly, the trial court granted summary disposition in favor of
VanderKooi under MCR 2.116(C)(10), (C)(7), and (I)(2). Finally, the trial court addressed the
city’s motion for summary disposition and held that plaintiff had failed to establish a violation of
his constitutional rights; consequently, summary disposition in favor of the city was proper under
MCR 2.116(C)(10).

This appeal followed.

II. CAPTAIN VANDERKOOI

Plaintiff argues that the trial court erred by failing to grant partial summary disposition in
his favor on his claims against VanderKooi relative to the ordering of the P&P, and erred by
granting summary disposition in favor of VanderKooi on all of the claims against him. We
disagree.

-4-
 A. STANDARD OF REVIEW

We review de novo a trial court’s grant of summary disposition. See Innovation Ventures
v Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016); see also Fisher Sand & Gravel Co v
Neal A Sweebe, Inc, 494 Mich 543, 553; 837 NW2d 244 (2013). The trial court denied
plaintiff’s motion for partial summary disposition under MCR 2.116(C)(10) and granted
summary disposition to Captain VanderKooi under MCR 2.116 (C)(7), (C)(10), and (I)(2);
therefore, the following standards apply: “A motion for summary disposition under
MCR 2.116(C)(7) asserts that a claim is barred by immunity granted by law” and “may be
supported or opposed by affidavits, depositions, admissions, or other documentary evidence; the
substance or content of the supporting proofs must be admissible in evidence.” By Lo Oil Co v
Dep’t of Treasury, 267 Mich App 19, 26; 703 NW2d 822 (2005) (explaining that the complaint’s
allegations “are accepted as true unless contradicted by documentary submissions”). “A trial
court properly grants a motion for summary disposition under MCR 2.116(C)(7) when the
undisputed facts establish that the moving party is entitled to immunity granted by law.”

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
When evaluating a motion for summary disposition under MCR 2.116(C)(10), a
trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties . . . in the light most favorable to the party
opposing the motion. Where the proffered evidence fails to establish a genuine
issue regarding any material fact, the moving party is entitled to judgment as a
matter of law. [Id. at 507 (quotation marks and citation omitted; alteration in
original.]

“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt
to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

“Whether an asserted federal right was clearly established at a particular time, so that a
public official who allegedly violated the right has no qualified immunity from suit, presents a
question of law,” which is reviewed de novo on appeal. Elder v Holloway, 510 US 510, 516;
114 S Ct 1019, 1023; 127 L Ed 2d 344 (1994). See also Morden v Grand Traverse Co, 275
Mich App 325, 340; 738 NW2d 278 (2007). Finally, the application of constitutional provisions
is a question of law that this Court reviews de novo. Hardrick v Auto Club Ins Ass’n, 294 Mich
App 651, 685; 819 NW2d 28 (2011), lv den 493 Mich 867 (2012).

B. FOURTH AND FIFTH AMENDMENT CLAIMS RELATED TO THE P&P

With respect to the Fourth and Fifth Amendment claims arising from the P&P procedure,
and for the reasons set forth in Johnson, ___ Mich App at ___, we hold that VanderKooi was
protected by qualified immunity. Consequently, the trial court did not err by denying summary
disposition to plaintiff or by granting summary disposition in favor of VanderKooi under
MCR 2.116(C)(7).

-5-
 C. REMAINING FOURTH AMENDMENT CLAIMS

The trial court also did not err by holding that VanderKooi had not violated plaintiff’s
Fourth Amendment rights by making contact with plaintiff or performing a search of his bag.

A person is liable under 42 USC 1983 if he or she, “under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . . .” 42 USC 1983. “Section 1983 itself
is not the source of substantive rights; it merely provides a remedy for the violation of rights
guaranteed by the federal constitution or federal statutes.” York v Detroit (After Remand), 438
Mich 744, 757-758; 475 NW2d 346 (1991). “A cause of action under § 1983 is stated where a
plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant
deprived the plaintiff of that right while acting under color of state law.” Davis v Wayne Co
Sheriff, 201 Mich App 572, 576-577; 507 NW2d 751 (1993).

“The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides
that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.’ ” Maryland v King, ___ US ___, ___;
133 S Ct 1958, 1968; 186 L Ed 2d 1 (2013), quoting US Const, Am IV. “A ‘seizure’ within the
meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a reasonable
person would have believed that he was not free to leave.” People v Jenkins, 472 Mich 26, 32;
691 NW2d 759 (2005). However, “[p]olice officers may make a valid investigatory stop if they
possess ‘reasonable suspicion’ that crime is afoot” without a warrant. People v Champion, 452
Mich 92, 98; 549 NW2d 849 (1996), citing Terry v Ohio, 392 US 1, 20; 88 S Ct 1868, 1879; 20
L Ed 2d 889 (1968). Additionally, a search conducted pursuant to consent is an exception to the
warrant requirement. People v Borchard-Ruhland, 460 Mich 278, 294; 597 NW2d 1 (1999).
The consent exception to the warrant requirement allows a search and seizure when consent is
unequivocal, specific, and freely and intelligently given.” Lavigne v Forshee, 307 Mich App
530, 538; 861 NW2d 635 (2014) (quotation marks and citation omitted). Consent can “be given
in the form of words, gesture, or conduct,” but “cannot be established by showing no more than
acquiescence to a claim of lawful authority.” Id. at 540 (quotation marks and citation omitted).
The voluntariness of consent is determined by analyzing the totality of the circumstances, and
consent may be voluntary even if the defendant does not know that he has a right to refuse
consent; “knowledge of the right to refuse consent is one factor to be taken into account, [but]
the government need not establish such knowledge as the sine qua non of an effective consent.”
Ohio v Robinette, 519 US 33, 39; 117 S Ct 417, 421; 136 L Ed 2d 347 (1996) (quotation marks
and citation omitted). See also Borchard-Ruhland, 460 Mich at 294 (explaining “that the people
need not prove that the person giving consent knew of the right to withhold consent”).

In this case, the initial contact between plaintiff and VanderKooi was consensual.
Plaintiff testified that VanderKooi identified himself and asked to speak with him, and plaintiff
said “sure.” With respect to the search of his bag, the record also reflects that VanderKooi asked
plaintiff for permission to look in the bag, and that plaintiff said “yes.” Plaintiff’s consent was
thus unequivocal, specific, and freely given. Forshee, 307 Mich App 530, 538.

-6-
 Plaintiff argues, however, that the length of his detention was unreasonable. The trial
court found both that plaintiff consented to the initial contact and never attempted to leave during
the encounter and that, if the contact was a stop, it was based on a reasonable suspicion on
VanderKooi’s part and was not of excessive duration. Indeed, plaintiff testified that, following
the stop, and after VanderKooi heard his explanation, VanderKooi told him to “hold on” and
then called for additional officers. Plaintiff, a minor, was told to wait by an adult police officer
who summoned more officers to assist him. At the least, therefore, there was a genuine issue of
material fact regarding whether plaintiff was seized at that point. Jenkins, 472 Mich at 32
(explaining that “[a] ‘seizure’ within the meaning of the Fourth Amendment occurs only if, in
view of all the circumstances, a reasonable person would have believed that he was not free to
leave”).

However, we agree that the stop was based on a reasonable suspicion and that the
detention was not of an excessive duration. As our Supreme Court has explained, law
enforcement officers are able to “approach and temporarily detain a person for the purpose of
investigating possible criminal behavior even though there is no probable cause to support an
arrest,” and the “brief detention does not violate the Fourth Amendment if the officer has a
reasonably articulable suspicion that criminal activity is afoot.” Id. at 32. Reasonable suspicion
is analyzed on a case-by-case basis and takes into account the totality of the circumstances. Id.
“A determination regarding whether a reasonable suspicion exists must be based on
commonsense judgments and inferences about human behavior.” Id. (quotation marks and
citation omitted). Officers are able “to draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information available to them that
might well elude an untrained person.” United States v Arvizu, 534 US 266, 273; 122 S Ct 744,
750-751; 151 L Ed 2d 740 (2002). Ultimately, officers must have more than a mere hunch, but
reasonable suspicion is a lower standard than probable cause and is much lower than a
preponderance of the evidence. See id. at 274 (“Although an officer’s reliance on a mere hunch
is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of satisfying a preponderance of the
evidence standard”) (quotation marks and citation omitted). With regard to the length of the
detention, a court must examine “whether the police diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions quickly, during which time it was necessary
to detain the defendant.” United States v Sharpe, 470 US 675, 686; 105 S Ct 1568, 1575; 84 L
Ed 2d 605 (1985).

VanderKooi testified that he observed behavior between plaintiff and another individual
that at least raised the question of whether a transfer of stolen property had occurred.
VanderKooi explained that stolen property was often taken piece by piece and then delivered
somewhere else, and he indicated that the transaction he had observed was consistent with
moving stolen property, which led to the following thought going through his mind: “You got a
person that’s walking and now he gets it to the person on the bike, and the guy on the bike can
get away quicker and bring it to somewhere else.” VanderKooi further explained that, when he
observed plaintiff kneeling or crouching in a patch of small trees and grass, he suspected that
plaintiff was acting as a lookout. In addition, VanderKooi testified that he had worked for
GRPD since 1980 and that he was very familiar with Grand Rapids and its crime patterns.
VanderKooi asserted that there were a lot of larcenies and home invasions in the area of the

-7-
incident, especially after school, and that home invasions and larcenies were higher the closer
one got to the core of the city. VanderKooi explained that most home invasions occurred during
the daytime when people were not home and that, during his 36 years as a police officer in the
city, he recognized the area where the incident occurred as one where there were more home
invasions than other areas.

Although these facts do not rise to the level of probable cause, and individually may be
insufficient to support a reasonable suspicion, when the totality of the circumstances is
examined, we conclude that the trial court did not err by holding that VanderKooi possessed a
reasonable suspicion sufficient to instigate a brief investigatory stop. See Arvizu, 534 US at 274
(explaining the holding in Terry in the following manner: “Although each of the series of acts
was perhaps innocent in itself, we held that, taken together, they warranted further
investigation.”) (quotation marks and citation omitted); Jenkins, 472 Mich at 32. Plaintiff’s
reliance on People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985) is misplaced. Shabaz
involved a defendant who was merely carrying a bag with indeterminate contents and who fled
when he saw a police car. Our Supreme Court stated that flight “might reasonably have
heightened the officer’s general suspicion . . . . But heightened general suspicion occasioned by
the flight of a surveillance subject does not alone supply the particularized, reasoned, articulable
basis to conclude that criminal activity was afoot that is required to justify the temporary seizure
approved in Terry.” Id. at 62-63.

In this case, by contrast, VanderKooi was able to articulate a particular and reasoned
basis for his decision to conduct an investigatory stop: to determine whether plaintiff was
involved in the transportation of items stolen during a home invasion or was acting as a lookout.
The fact that the circumstances of the incident did not rise to the level of probable cause (a fact
that VanderKooi acknowledged) or that VanderKooi’s suspicion was ultimately proven to be
false, does not negate the reasonableness of his suspicion. Illinois v Wardlow, 528 US 119, 126;
120 S Ct 673, 677; 145 L Ed 2d 570 (2000) (explaining that, in allowing investigatory
detentions, “Terry accepts the risk that officers may stop innocent people”).

With regard to the length of the detention, plaintiff argues that the trial court erred by
concluding that the entire encounter lasted approximately 10 to 15 minutes, and argues that the
police report demonstrates that the encounter lasted 55 minutes. However, the police report does
not indicate that the encounter lasted 55 minutes. The police report has two boxes: one for the
time of the incident and one for the report date and time. The time for the incident is listed as
15:08. The report time is 16:03. The time of the report is not indicative of when the encounter
concluded and does not contradict the evidence, in the form of VanderKooi’s answer to
plaintiff’s interrogatories, that it lasted 10 to 15 minutes.

Further, regardless of the precise length of time, the evidence shows that GRPD officers
“diligently pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the defendant.” Sharpe, 470 US at 686.
VanderKooi sought to ascertain plaintiff’s identity and the origin of the object that he believed
may have been stolen. Officers contacted the other individual involved, and the two stories were
compared, after which VanderKooi recognized that he lacked probable cause for an arrest and
plaintiff was released. The trial court did not err by granting summary disposition in favor of
VanderKooi on the ground that no Fourth Amendment violations occurred.

-8-
 D. EQUAL PROTECTION AND 42 USC § 1981 CLAIMS

Plaintiff also argues that the trial court erred by failing to determine that the P&P
procedure violated his Fourteenth Amendment right to equal protection or the requirement under
§ 1981 that he be afforded equal rights. We disagree.

42 USC § 1981 provides as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the
making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.

The language of § 1981 “establishes four protected interests: (1) the right to make and
enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the full and
equal benefit of the laws; and (4) the right to be subjected to like pains and punishments.”
Phelps v Wichita Eagle-Beacon, 886 F2d 1262, 1267 (CA 10, 1989). A plaintiff must establish
three requirements for a § 1981 claim: “(1) he or she is a member of a racial minority; (2) the
defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned
one or more of the activities enumerated in the statute . . . .” Bellows v Amoco Oil Co, 118 F3d
268, 274 (CA 5, 1997).

The United States Supreme Court has stated that “purposeful discrimination that violates
the Equal Protection Clause of the Fourteenth Amendment will also violate § 1981.” Gratz v
Bollinger, 539 US 244, 276 n 23; 123 S Ct 2411, 2431; 156 L Ed 2d 257 (2003). See also
Grutter v Bollinger, 539 US 306, 343; 123 S Ct 2325, 2347; 156 L Ed 2d 304 (2003), superseded
on other grounds by Const 1963, art 1, § 26 as stated in Harrington v Scribner, 785 F3d 1299,
1308 (CA 9, 2015) (explaining that “the prohibition against discrimination in § 1981 is co-
extensive with the Equal Protection Clause”). As plaintiff’s claim under the Fourteenth
Amendment is premised on purposeful discrimination, his claims under § 1981 and § 1983
claims are overlapping.

-9-
 The Equal Protection Clause of the Fourteenth Amendment is essentially a direction that
all persons similarly situated should be treated alike,” Lawrence v Texas, 539 US 558, 579; 123
S Ct 2472, 2484; 156 L Ed 2d 508 (2003), and it provides that no State shall “deny to any person
within its jurisdiction the equal protection of the laws,” US Const, Am XIV. “Racially selective
law enforcement violates this nation’s constitutional values at the most fundamental level;
indeed, unequal application of criminal law to white and black persons was one of the central
evils addressed by the framers of the Fourteenth Amendment.” Marshall v Columbia Lea
Regional Hosp, 345 F3d 1157, 1167 (CA 10, 2003). Even consensual searches and seizures
“may violate the Equal Protection Clause when they are initiated solely based on racial
considerations.” United States v Travis, 62 F3d 170, 173 (CA 6, 1995), cert den 516 US 1060
(1996).

The requirements for a claim of racially selective law enforcement draw on what
the Supreme Court has called “ordinary equal protection standards.” Armstrong,
517 U.S. at 465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). The
plaintiff must demonstrate that the defendant’s actions had a discriminatory effect
and were motivated by a discriminatory purpose, Armstrong, 517 U.S. at 465.
These standards have been applied to traffic stops challenged on equal protection
grounds. Chavez v. Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001);
Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533-36
(6th Cir. 2002). [Marshall, 345 F3d at 1168. See also Carrasca v Pomeroy, 313
F3d 828, 834 (CA 3, 2002) (“To prevail on an equal protection claim in the racial
profiling context, Plaintiffs would have to show that the challenged law
enforcement practice had a discriminatory effect and was motivated by a
discriminatory purpose.”).]

Thus, in order to survive a motion for summary disposition, “a plaintiff in a § 1983 suit
challenging alleged racial discrimination in traffic stops and arrests must present evidence from
which a jury could reasonably infer that the law enforcement officials involved were motivated
by a discriminatory purpose and their actions had a discriminatory effect.” Marshall, 345 F3d at
1168. Discriminatory effect requires a showing that similarly situated individuals of a different
race were treated differently. United States v Armstrong, 517 US 456, 465; 116 S Ct 1480, 1487;
134 L Ed 2d 687 (1996). A plaintiff may use statistical evidence or identify specific individuals
of another race to demonstrate such an effect. Bennett v Eastpointe, 410 F3d 810, 818 (CA 6,
2005).

In this case, plaintiff argued that statistical evidence, as well as the fact that VanderKooi
had chosen to pursue him instead of the other individual, established a discriminatory effect.
Additionally, plaintiff argues that the other person was not subject to the P&P procedure
although he did not have identification. The other person did provide an affidavit stating that he
was not searched or P&P’d even though he lacked identification. However, both he and plaintiff
were subjected to a stop by GRPD officers for the same reason, and Newton testified that the
individual on the bicycle provided a school identification card, that he believed the identity was
accurate, and that he performed a search to which the individual consented.

With regard to statistical evidence, plaintiff provides an analysis of 439 GRPD incident
reports in 2011 and 2012 and concludes that 75% of the officer-initiated encounters described

-10-
involved a black subject while only 15% involved white subjects, despite the 2010 Grand Rapids
census showing that the city’s population as 21% black and 65% white.

With regard to the statistical evidence, federal courts have noted limitations in the use of
general census data as a benchmark for proof of discriminatory effect in police encounters. See
Chavez, 251 F3d at 643-645 (noting that “[i]t is widely acknowledged that the Census fails to
count everyone, and that the undercount is greatest in certain subgroups of the population,
particularly Hispanics and African–Americans”; explaining that, even assuming the census data
was accurate, it did not shed light on the number of minorities driving on the Illinois highways;
and concluding that it could “not find that the statistics prove that the Valkyrie officers’ actions
had a discriminatory effect on the plaintiffs”). However, even assuming that the statistical
evidence or the affidavit of the other involved individual sufficed to create a genuine issue of
material fact regarding discriminatory effect, plaintiff has failed to demonstrate a discriminatory
purpose.

Under the discriminatory purpose requirement, courts “may consider direct evidence of
discrimination, statistical evidence showing a discriminatory impact, or other factors that could
reveal a discriminatory purpose, like the historical background of the policy.” Mendiola–
Martinez v Arpaio, 836 F3d 1239, 1261 (CA 9, 2016); see also McCleskey v Kemp, 481 US 279,
293, 293 n 12; 107 S Ct 1756, 1767; 95 L Ed 2d 262 (1987). The discriminatory purpose need
not be the only purpose, but it must be a motivating factor in the decision.” Marshall, 345 F3d at
1168.

Although plaintiff asserts that the trial court erred by not analyzing his claims under the
burden-shifting framework articulated in McDonnell Douglas Corp v Green, 411 US 792; 93
S Ct 1817; 36 L Ed 2d 668 (1973), we conclude the application of that framework would not
have altered the outcome. VanderKooi alleged a nondiscriminatory reason for the stop, search,
and P&P. Thus, regardless of whether this Court frames the analysis as one under McDonnell
Douglas, the issue remains the same: construing the evidence submitted by the parties in a light
most favorable to plaintiff, did he present sufficient evidence for a reasonable jury to infer that
VanderKooi had acted with a discriminatory purpose? We conclude that he did not. None of the
evidence presented reveals a racial motivation in VanderKooi’s decision-making, and the
statistics offered by plaintiff, even assuming that they showed a discriminatory effect in the
number of officer-initiated stops in the city of Grand Rapids, are insufficient to demonstrate that
VanderKooi acted with a discriminatory purpose in his case. See McCleskey, 481 US at 292.

Plaintiff therefore failed to present evidence from which a jury could reasonably infer
that VanderKooi or other officers on the scene acted with a discriminatory purpose. See
Innovation Ventures, 499 Mich at 507. Accordingly, the trial court properly granted summary
disposition in favor of VanderKooi on plaintiff’s § 1981 and equal protection claims.

III. CLAIMS AGAINST THE CITY

Plaintiff argues that the trial court erred by granting summary disposition in favor of the
city under MCR 2.116(C)(10). We disagree for the reasons stated in Johnson, ___ Mich App at
___, and affirm the trial court’s grant of summary disposition in favor of the city.

-11-
 IV. DEFENDANTS’ MOTION TO STRIKE

Finally, plaintiff argues that the trial court erred by granting defendants’ motion to strike
his proposed expert witness’s testimony. We disagree, largely for the reasons stated in Johnson,
___ Mich App at ___. We further disagree, with regard to plaintiff’s § 1981 and equal protection
claims, for the following additional reasons.

MRE 702 governs expert testimony and provides as follows:

If the court determines that scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.

MRE 702 “requires the circuit court to ensure that each aspect of an expert witness’s
testimony, including the underlying data and methodology, is reliable,” and it “incorporates the
standards of reliability that the United States Supreme Court articulated in Daubert v Merrell
Dow Pharm, Inc,” 509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 (1993). Elher v Misra, 499
Mich 11, 22; 878 NW2d 790 (2016). Daubert requires that the trial court ensure all scientific
testimony is relevant and reliable. Id. at 22-23. Although not dispositive, absence of supporting
literature “is an important factor in determining the admissibility of expert witness testimony.”
Id. at 23.

In this case, the trial court noted that plaintiff wished to use Dr. Terrill’s testimony to
“draw conclusions from the evidence of a racial disparity in P&P reports . . . based on an
analysis of incident reports, and the use of ordinary mathematical computations that any lay
person can perform . . . .” The trial court reasoned that the trier of fact did not need assistance to
understand the facts and evidence and that the process by which Dr. Terrill arrived at his
conclusions was unclear. Further, the trial court concluded that plaintiff failed to meet the
Daubert standard because he did not cite any peer-reviewed literature supporting Dr. Terrill’s
method of using unadjusted census data. The trial court thus determined, and we agree, that Dr.
Terrill’s testimony was inadmissible under MRE 702. Plaintiff failed to establish that Dr.
Terrill’s statistical analysis and resulting opinion was based on sufficient data or reliable
methods. When asked whether he was aware of any expert that uses unadjusted census data, Dr.
Terrill replied, “I haven’t got that far in my analysis or research of adjusted, non-adjusted. It’s
something that I am going to ponder into very carefully and very thoughtfully.” We conclude
that the trial court did not abuse its discretion in striking Dr. Terrill’s testimony pursuant to
MRE 702. See Elher, 499 Mich at 28 (holding that the trial court did not abuse its discretion and
explaining that, although “peer-reviewed, published literature is not always necessary or
sufficient to meet the requirements of MRE 702, the lack of supporting literature, combined with
the lack of any other form of support, rendered [the expert’s] opinion unreliable and inadmissible
under MRE 702”).

-12-
 Affirmed.

/s/ Mark T. Boonstra
/s/ Colleen A. O’Brien

Wilder, P.J., did not participate.

-13-