NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0703n.06
CASE No. 19-1688
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN HEYKOOP, d/b/a EAGLE ) FILED
TOWING, ) Dec 16, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MICHIGAN STATE POLICE, et al., ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendants-Appellants. )
)
Before: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. In this civil rights action by a towing
company claiming a violation of procedural due process in its removal from two police-station call
lists, the defendant police lieutenants appeal the denial of qualified immunity. We affirm.
The defendants in this interlocutory appeal are Michigan State Police (MSP) Department
First Lieutenants Jeffrey White and Chris McIntire, who are Post Commanders for the MSP Hart
and Rockford Posts, respectively. The plaintiff is John Heykoop, doing business as Eagle Towing,
which, for several years, had been on the “No Preference Wrecker Call List” for both Posts.
On November 13, 2017, without any prior warning, Lt. White removed Eagle Towing from
the Hart Post List, sending Heykoop a two-sentence letter explaining only that: “This [removal] is
due to the quality and type of service that Eagle Towing has provided with in the Hart Post are[a].”
On December 14, 2017, Lt. McIntire did likewise, removing Eagle Towing from the Rockford
Post List in a similar two-sentence letter, explaining only that: “Your removal from the list is a
direct result of the unacceptable service that you have provided within the post area.” No facts or
Case No. 19-1688, Heykoop v. Mich. State Police
explanation supported these proffered reasons; instead, each defendant had received a single
complaint (one a year earlier and the other three years earlier) about Eagle Towing’s pricing, but
neither had ever received a complaint about the quality of the towing service. It turned out that
both defendants removed Eagle Towing from their Lists because the local sheriff had done so.
When Heykoop submitted new applications to be placed back on the Lists, the defendants
refused to accept the mail and, when Heykoop persisted until they did accept the applications, the
defendants simply ignored them. So Heykoop sued in federal court under 42 U.S.C. § 1983.
Heykoop claimed a violation of procedural due process, asserting a property interest in his
remaining on the Lists pursuant to MSP Official Order No. 48, which requires towing companies
to satisfy and demonstrate certain conditions, including towing capacity, yard storage capacity,
state certification, insurance, workers compensation, etc., and provides, in pertinent part;
48.3.12. COMPLAINT PROCEDURES
A. Complaint Against a Wrecker Service
(1) Problems with or complaints about a wrecker service shall be documented
by the work site commander. The documentation shall be retained for the
duration of the wrecker service’s contract with the department, or their time
on the wrecker list, plus two years.
(2) Members shall report to their immediate supervisors the name of any
wrecker service or their employee that renders poor service, or that is
incapable of providing quality service because of inadequate equipment or
personnel.
(3) Members who become aware that a wrecker service has intentionally
violated Chapter II of the Michigan Vehicle Code shall inform their work
site commander of the reported violations.
a. A work site commander who learns of intentional violations of Chapter
II of the Michigan Vehicle Code shall ensure a thorough investigation
into the incident and seek criminal prosecution if warranted.
b. A wrecker service who is found to have intentionally violated Chapter
II for financial gain shall immediately have their contract canceled or be
removed from the no-preference wrecker call list.
(4) Each wrecker service shall be held to identical standards of conduct or
performance.
2
Case No. 19-1688, Heykoop v. Mich. State Police
(5) When a complaint is received concerning the performance or rate change of
a wrecker service or the service is not adhering to the requirements
established by this Order, the complaint shall be immediately investigated.
a. Unless extenuating circumstances exist, a wrecker service shall not
have their contract cancelled or be removed from the no-preference
wrecker call list without an investigation by the work site commander
or their designee.
b. If it is found that the wrecker service failed to comply with the
requirements of this Order, a written notice shall be sent describing the
complaint and the action needed to maintain a position on the no-
preference wrecker call list.
c. Wrecker services shall be notified in writing of any non-compliance
with accepted standards of conduct in a timely manner, and advised that
they have the right to an appeal in writing to the work site commander
before administrative or disciplinary action can be taken. The written
notice shall indicate that additional complaints could result in removal
from the list.
(6) If an additional complaint is received concerning a wrecker service within
a year, another investigation shall be conducted by the work site commander
or their designee.
a. A copy of the report shall be sent to the Hazardous Materials and
Investigation Unit commander, CVED, for further review and
investigation.
b. The CVED shall notify the work site of the results of any investigation.
B. Complaints from a Wrecker Service
Complaints or concerns from a wrecker service shall be investigated by the work
site commander or their designee. If their complaint cannot be handled at the local
work site, the information shall be forwarded to the Hazardous Materials and
Investigation Unit commander, CVED Headquarters. The CVED shall make
contact with the MPSC when necessary.
MSP Order 48 (emphasis added). In this lawsuit, Heykoop claimed the defendants had not
followed any of these requirements when removing Eagle Towing from their Lists and the
defendants admitted as much in their depositions during discovery. Thus, Heykoop moved for
summary judgment. He also claimed First Amendment retaliation, equal protection (class of one),
and conspiracy; sought leave to amend his complaint to include a substantive due process claim;
and requested an injunction returning Eagle Towing to the Lists as part of the remedy.
3
Case No. 19-1688, Heykoop v. Mich. State Police
The defendants also moved for summary judgment, based in part on qualified immunity,
arguing that a towing company’s remaining on a police call list is not a clearly established property
interest. At the hearing on the motions, the district court issued an oral decision, granting the
defendants summary judgment on the First Amendment, equal protection, and conspiracy claims,
and denying Heykoop leave to amend his complaint because a substantive due process claim would
be unavailing. But the court denied qualified immunity on the procedural due process claim,
holding that Sixth Circuit precedent and MSP Order 48 created a property interest in Eagle
Towing’s remaining on the list, though the process that was due was a question for a jury. The
defendants filed this interlocutory appeal from that denial of summary judgment.
The denial of summary judgment is ordinarily not a final decision within the meaning of
28 U.S.C. § 1291, and, accordingly, it is generally not immediately appealable. McMullen v.
Meijer, Inc., 355 F.3d 485, 489 (6th Cir. 2004). But the “denial of a claim of qualified immunity,
to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning
of [] § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). Our jurisdiction is, however, limited: “we may not decide a challenge aimed solely at
the district court’s determination of the record-supported evidence, but we may decide a challenge
with any legal aspect to it, no matter that it might encroach on the district court’s fact-based
determinations.” Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018). Under our
pragmatic approach, we “excise the prohibited fact-based challenge so as to establish jurisdiction.”
Id. In so doing, “we follow the same path as did the district court—considering the sufficiency of
the plaintiff’s proffered evidence, drawing all reasonable inferences in the plaintiff’s favor—and,
ideally, we would need look no further than the district court’s opinion for the pertinent facts and
inferences.” Id. But we are not limited to only those facts and inferences; rather, we must make
our legal determination “based on th[e] now (for this purpose) undisputed record facts.” Id. at 56.
4
Case No. 19-1688, Heykoop v. Mich. State Police
Proceeding thusly, we have jurisdiction over this interlocutory appeal from the denial of the
defendants’ claims of qualified immunity.
Qualified immunity shields government officials in the performance of discretionary
functions from standing trial for civil liability unless their actions violate clearly established rights
of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
It “is an immunity from suit rather than a mere defense to liability,” Mitchell, 472 U.S. at 526; it
allows officials—such as the lieutenants here—“breathing room to make reasonable but mistaken
judgments,” Stanton v. Sims, 571 U.S. 3, 6 (2013) (quotation marks and citation omitted); and it
“protects all but the plainly incompetent or those who knowingly violate the law,” id. The plaintiff
in a § 1983 action bears the burden of overcoming the qualified-immunity defense. Bunkley, 902
F.3d at 559. At the summary-judgment stage, the plaintiff must show both that the defendant
official violated a constitutional right and that right was clearly established. Id. At a minimum,
this requires evidence of a “genuine issue of fact”; that is, “evidence on which [a] jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 275 (1986).
The defendants argue that the district court erred by holding that Lucas v. Monroe County,
203 F.3d 964 (6th Cir. 2000), serves as clearly established law that, combined with MSP Order 48,
gave the plaintiff towing company a property interest in remaining on a police call list. In Lucas,
the plaintiff alleged that its removal from the stand-by tow call list without notice and an
opportunity to be heard violated its due process rights but the district court dismissed the claim,
finding that the plaintiff lacked a protected property interest in remaining on the stand-by list. Id.
at 978. On appeal, the panel explained that “[t]he mere unilateral expectation of continuing to
receive a benefit is not enough to create a protected property interest; instead a ‘legitimate claim
of entitlement’ must exist. . . . [and] [i]n the instant case, . . . [the] [p]laintiff[] can point to no
5
Case No. 19-1688, Heykoop v. Mich. State Police
ordinance, contract[,] or other ‘rules of mutually explicit understandings’ that support [its] claim
of entitlement to remain on the stand-by list.” Id. (citations omitted). The panel continued:
In Gregg [v. Lawson, 732 F. Supp. 849, 853 (E.D. Tenn. 1989)], the [district] court
held that the plaintiff had a ‘legitimate claim of entitlement’ in remaining on the
wrecker tow list, on grounds that several references to and procedures for removal
or suspension from the list to compel compliance with the regulations reflect the
mutual nature of the relationship established by inclusion on the list. In this case
[i.e., Lucas], there are no such established procedures for suspension or removal.
Id. (quotation marks and citation omitted). Thus, the Lucas panel concluded, the “policies [in
Lucas] did not create a legitimate claim of entitlement to remaining on the tow call list.” Id.
In the present case, however, MSP Order 48 requires towing companies to satisfy several
conditions in order to be placed on the List and provides explicit procedures governing how the
Post Commanders may remove them from the List, including third-party investigation and the
right to appeal, which protect the towing company’s interest. The district court determined that
those requirements, and the reasonable expectations derived from them, created a property interest.
The defendants argue that MSP Order 48 (and its exacting requirements for removing a
towing company from the list) does not create a property interest because the Post Commanders
have “discretion,” in that they are not required to use lists; they can, alternatively, contract with
towing companies directly. This discretion, the defendants argue, means that Post Commanders
can, at any time and for any reason (or no reason), revoke the towing company’s “benefit” of being
on the list and, therefore, remaining on the list is not a protected property interest. If the defendants
here had canceled their Lists altogether (and replaced them with individual contracts), this would
be a compelling (likely winning) argument. But they did not. They removed one towing company
from their Lists, leaving their Lists and MSP Order 48 otherwise intact. Further, MSP Order 48
has specific requirements for removing a towing company from a list, thus providing the towing
6
Case No. 19-1688, Heykoop v. Mich. State Police
company protection against arbitrary removal and creating at least a limited property interest in
remaining on the list.
The defendants argue, alternatively, that this type of property interest was not clearly
established because the district court misread and misapplied Lucas, which—the defendants insist
—actually says that there is NO property interest here (again, based on their “discretion” theory).
As we have already explained, we do not agree with that reading of Lucas. The takeaway from
Lucas, beyond the simple holding that the Lucas plaintiff could not establish a property interest, is
that a plaintiff who can point to an “ordinance, contract[,] or other ‘rules of mutually explicit
understandings,’” including requirements the towing company must satisfy to be placed on and
remain on the list, along with express “procedures” the Post Commanders must follow in order to
remove or suspend the towing company from the list has established a “legitimate claim of
entitlement.” Lucas, 203 F.3d at 978. Because MSP Order 48 contains express reference to these
requirements and procedures, Eagle Towing had a clearly established interest in remaining on the
Lists.
Finally, the defendants raise a new argument in their reply brief: that a property interest
must be based in state law and, here, MSP Order 48 is not state law, so there can be no property
interest. Because this argument was first raised in the reply brief, we have no counterargument
from Heykoop. This is one reason why we do not consider arguments raised for the first time in
reply briefs. Speedeon Data, LLC v. Integr’d Direct Mktg., LLC, 718 F. App’x 333, 338 (6th Cir.
2017) (“we do not consider IDM’s argument, raised before us for the first time in its reply”) (citing
Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013)). This argument is forfeited.
For the foregoing reasons, we AFFIRM the judgment of the district court.
7
Case No. 19-1688, Heykoop v. Mich. State Police
SUTTON, Circuit Judge, dissenting. I reluctantly dissent from the majority’s thoughtful
approach to this difficult case. Even assuming there is a protected property interest in staying on
a towing call list, that interest is not clearly established. The only relevant cases rejected similar
claims. See Lucas v. Monroe Cnty., 203 F.3d 964, 978 (6th Cir. 2000); Med Corp., Inc. v. City of
Lima, 296 F.3d 404, 409–11 (6th Cir. 2002). When cases reject a constitutional claim, they do not
clearly establish it. And even when dicta in past cases may suggest how to satisfy the claim in a
future case, they do not clearly establish the principle. They just pave the way for a future case—
and a future holding—to clearly establish it.
Independent of all that, I am skeptical that a discretionary policy “intended for the guidance
of [the Michigan State Police] members,” R.50-2 at 2, amounts to the source of a protected
property interest. The Constitution does not protect guidelines extinguishable at the whim of state
officials. With respect, I would reverse the district court’s denial of qualified immunity.
8