42 USC § 1983; First Amendment retaliation; Qualified immunity; Fourth Amendment claims; Malicious prosecution; “Prior restraint” First Amendment claim; Municipal liability

The court affirmed summary judgment for defendants-police officers and City of Parma in this case involving, among other claims, alleged “prior restraints” of First Amendment speech on a satirical Facebook page, holding that there is “no recognized right to be free from a retaliatory arrest that is supported by probable cause.” Plaintiff-Novak created a Facebook account that was a knockoff of the City’s police department page. He claimed he did so to “exercise his ‘fundamental American right’ of ‘[m]ocking our government officials.’” The department conducted an investigation, which continued even after he removed the page. A search warrant for Facebook led to the discovery that Novak was the author of the page. Then a search warrant and an arrest warrant were obtained. The judges who issued the warrants concluded there was probable cause. Novak was indicted by a grand jury for disrupting police functions but subsequently acquitted, then sued under § 1983. He argued that he was arrested in retaliation for exercising his First Amendment right to “parody.” But the court concluded that “the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.” Moreover, they had reason to believe there was probable cause where “[b]oth the City’s Law Director and the judges who issued the warrants agreed with them.” Even if it was a mistaken belief, the officers were entitled to qualified immunity on the retaliation claim. Novak’s Fourth Amendment claims also failed where the officers relied on the judges’ warrants, he could not show that the officers offered any false, material information to obtain the warrants, and reliance on them was not unreasonable. As to his claim for malicious prosecution, he could not show that the officers participated in the decision to prosecute him. Regarding his prior-restraint claim, he offered no evidence that the department’s tv interview constituted a “threat.” Further, taking his phone and laptop did not amount to a prior restraint where not all of his communication channels were blocked. And the letter to Facebook was not a prior restraint where the officer merely “requested” that the page be taken down, and Novak actually took it down himself. Finally, his municipal liability claim was unsuccessful where he could not show that he suffered both “an injury and that the alleged violation was caused by the City’s policy or custom.”

42 USC § 1983; First Amendment retaliation; Qualified immunity; Fourth Amendment claims; Malicious prosecution; “Prior restraint” First Amendment claim; Municipal liability

The court affirmed summary judgment for defendants-police officers and City of Parma in this case involving, among other claims, alleged “prior restraints” of First Amendment speech on a satirical Facebook page, holding that there is “no recognized right to be free from a retaliatory arrest that is supported by probable cause.” Plaintiff-Novak created a Facebook account that was a knockoff of the City’s police department page. He claimed he did so to “exercise his ‘fundamental American right’ of ‘[m]ocking our government officials.’” The department conducted an investigation, which continued even after he removed the page. A search warrant for Facebook led to the discovery that Novak was the author of the page. Then a search warrant and an arrest warrant were obtained. The judges who issued the warrants concluded there was probable cause. Novak was indicted by a grand jury for disrupting police functions but subsequently acquitted, then sued under § 1983. He argued that he was arrested in retaliation for exercising his First Amendment right to “parody.” But the court concluded that “the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.” Moreover, they had reason to believe there was probable cause where “[b]oth the City’s Law Director and the judges who issued the warrants agreed with them.” Even if it was a mistaken belief, the officers were entitled to qualified immunity on the retaliation claim. Novak’s Fourth Amendment claims also failed where the officers relied on the judges’ warrants, he could not show that the officers offered any false, material information to obtain the warrants, and reliance on them was not unreasonable. As to his claim for malicious prosecution, he could not show that the officers participated in the decision to prosecute him. Regarding his prior-restraint claim, he offered no evidence that the department’s tv interview constituted a “threat.” Further, taking his phone and laptop did not amount to a prior restraint where not all of his communication channels were blocked. And the letter to Facebook was not a prior restraint where the officer merely “requested” that the page be taken down, and Novak actually took it down himself. Finally, his municipal liability claim was unsuccessful where he could not show that he suffered both “an injury and that the alleged violation was caused by the City’s policy or custom.”

Other acts evidence; MRE 404(b)(1); Proper purpose; People v Denson; Logical relevance; MRE 401 & 402; A common scheme or plan; People v Sabin (After Remand); Unfair prejudice; MRE 403; People v VanderVliet; Ineffective assistance of counsel; People v Trakhtenberg; Failure to investigate & attempt to secure a suitable expert witness; Trial strategy; Sentencing; The “two thirds rule”; MCL 769.34(2)(b); People v Tanner; Waiver; People v Carter

The court held that the trial court did not err by admitting other acts evidence, that defendant was not denied the effective assistance of counsel, and that he waived his argument as to sentencing. He was convicted of multiple counts of CSC I for sexually abusing his ex-girlfriend’s daughter beginning when she was six years old. The trial court sentenced him to concurrent prison terms of 25 to 38 years, with credit for 1,000 days served. On appeal, the court rejected his argument that the trial court erred by admitting text messages and testimony related to his acts of pulling the hair of his sexual partners. Because the prosecution “articulated a proper noncharacter purpose for admission, [defendant’s] argument to the contrary is factually unsupported.” In addition, the court noted “[h]air-pulling during sexual relations is a highly distinctive feature justifying admission as evidence of a ‘scheme, plan, or system in doing an act’ under MRE 404(b).” And although “hair-pulling during sexual relations is unusual, evidence of this behavior is not so inflammatory that on balance, its prejudicial effect outweighed its probative value.” The court also rejected defendant’s argument that his trial counsel performed ineffectively by failing to call an expert witness to rebut the prosecution’s expert witness, and by failing to effectively cross-examine the witness. “[E]ven assuming that counsel should have called or consulted with an expert, [he] has failed to sustain his burden of demonstrating that ‘but for counsel’s deficient performance, a different result would have been reasonably probable.’” Further, defense counsel “engaged in a thoughtful and vigorous cross-examination of [the expert], drawing attention to the weaknesses in her testimony and eliciting a critical concession.” Finally, the court found he waived his claim that the trial court erred by applying the “two-thirds rule” under Tanner in calculating his maximum sentence. Affirmed.

Sentencing; Enhancement for “straw purchasers”; USSG § 2K2.1(a)(4)(B); Whether defendant had “reason to believe” the true buyer could not lawfully possess the gun; Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF)

The court affirmed the district court’s enhancement of defendant-McKenzie’s sentence under § 2K2.1(a)(4)(B) for purchasing firearms as a “straw purchaser” where he had sufficient “reason to believe” that he was purchasing firearms for “prohibited persons.” He purchased 13 firearms within 6 months, leading the ATF to investigate. He was observed signing a federal form acknowledging he was not buying the gun for another, and then leaving and trading the gun to another man (C) for money in a parking lot. A search warrant for C’s phone revealed that C had “to pay him a $60 purchaser’s fee in addition to the” cost of the gun. A search of another buyer’s (S) car revealed another gun provided by McKenzie. He pled guilty to making a materially false statement to a licensed firearms dealer by suggesting he was the actual buyer when he was a straw purchaser. To apply § 2K2.1(a)(4)(B), “the defendant must have ‘committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person.’” McKenzie argued he had no reason to believe that either C or S were “‘prohibited person[s].’” The court explained that the phrase “reason to believe” must not be interpreted “to require a straw purchaser to know so much about a true buyer that one could describe the purchaser as having ‘knowledge’ of the buyer’s status. Such a reading would render the phrase a nullity.” Reviewing historic usage, it concluded the phrase “is generally interpreted to require nothing more than what the ‘probable cause’ test traditionally has required. A straw purchaser must know of facts that, at most, create a ‘fair probability’ that the buyer is a prohibited person.” The evidence showed that McKenzie had a reputation as someone who would “buy a gun ‘for whoever wanted one.’” He also was “at most acquaintances” with C and S, yet they asked him to buy guns for them. This was “an odd request. One obvious inference as to why they might make it is because the law prohibited them from purchasing the gun themselves—that is, because they were ‘prohibited person[s].’” Further, he never asked either of them why they wanted him to buy a gun. This failure could indicate “deliberate avoidance of knowledge.” The fact that they were paying more than the market fee also indicated a questionable transaction. Further, McKenzie knew that S had tried to buy a gun and was refused before he asked him for help.

Search & seizure; Motion to suppress evidence seized during a traffic stop; Whether the officers “abandoned” the traffic stop; Distinguishing United States v Lash (Unpub 6th Cir); Whether the officers’ continued search was supported by “reasonable suspicion”; United States v Winfrey; United States v Jones (Unpub 6th Cir); Effect of the Michigan Regulation and Taxation of Marihuana Act; Distinguishing Northrup v City of Toledo Police Dep’t; “Probable cause” for a warrantless vehicle search; Effect of a drug-detection dog’s positive alert

[This appeal was from the WD-MI.] The court held that although the officers abandoned the traffic stop and turned it into a drug investigation, there was no Fourth Amendment violation because their new course of investigation was supported by reasonable suspicion. Thus, it upheld the district court’s denial of defendant-Whitley’s motion to suppress and affirmed his convictions. He pled guilty to possessing a firearm in furtherance of drug trafficking and to possessing with the intent to distribute a controlled substance, reserving the right to challenge the denial of his motion to suppress the evidence seized during the vehicle search. The court concluded that “the officers’ entire engagement with Whitley” after he was stopped for a traffic violation could not be deemed a traffic stop. The patrol officer’s (T) initial questioning "was within the scope of the traffic stop” as he told Whitley why he was stopped and asked for his “driver’s license, automobile registration, and proof of insurance. Each of these questions is an ordinary inquiry incident to a traffic stop. The further questions of whether Whitley had anything illegal in the vehicle and where he was coming from” were permissible because T asked them while Whitley was retrieving his documents. But after T walked back to his patrol car and spoke with the detective (W) who had been surveilling Whitley, “Whitley’s detention objectively exceeded the relevant scope of the traffic stop because it was now entirely focused on” the scale T had observed in Whitley’s lap. T and W did not examine his “documents, did not run his name through a database, and totally abandoned their investigation of the traffic violation. At that point, the traffic stop had morphed into a drug investigation, prompting [W] to say that they should pull Whitley out of his vehicle.” Asking Whitley to exit the vehicle was “a detour that requires independent reasonable suspicion because the request facilitated the investigation into the scale and did not pertain to the original traffic stop.” The issue then was whether the officers had a reasonable suspicion to continue the stop. The court held that they did. They had information that drugs were being sold out of a home that he was seen leaving while counting a large amount of cash. He was seen making several short stops, including a less than 30-second interaction with another male and entering and exiting stores without appearing to buy anything. In addition to the scale in his lap, marijuana “shake” was seen on his vehicle’s dashboard. The totality of the circumstances supported “the conclusion that the officers had reasonable suspicion that Whitley was engaged in drug trafficking[.]” Further, the certified drug-detection dog’s alert “was sufficient to establish probable cause.”

Custody; Sua sponte consideration of legal custody; “Child custody dispute”; Necessity of a finding of proper cause or a change of circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Joint custody; Fisher v Fisher; Dailey v Kloenhamer; Established custodial environment (ECE)

The court held that while trial courts are “not absolutely prohibited from sua sponte considering legal custody” where a party only requests a change in physical custody, the trial court erred in doing so under the circumstances here. It also erred in determining that it did not have to find proper cause or a change of circumstances before changing legal custody of the parties’ child (K). Thus, the court reversed the order awarding plaintiff-father sole legal custody of K and remanded. It noted that “legal and physical custody both fall within a ‘child custody dispute.’ Therefore, where one is directly before a court, the other could be properly also before the court by necessary implication, even if not expressly raised by either party.” However, the court did not consider under what “circumstances such an implication would arise, because they clearly did not arise in this case and under these circumstances.” The facts here did not support the trial court’s determination “legal custody was properly before it.” The court further held that it “made a clear legal error by concluding that a change in legal custody does not affect a child’s [ECE] merely because the child’s physical environment might not change. In addition, changing who has the authority to make major decisions in a child’s life would inevitably affect, at least to some extent, how the child interacts with either parent.” While the trial court clearly believed “the parties’ inability to communicate and cooperate” required intervention, it did not explain how K “was actually or potentially suffering harm as a result of the parties having joint legal custody and difficulties cooperating.” Further, although defendant-mother “should have kept plaintiff better informed about” K’s living arrangements, she “was not obligated to inform plaintiff of her location at the domestic violence shelter or seek” his permission. The evidence also did not seem to support a finding “the parties had the kind of irreconcilable clash of beliefs as to major decisions affecting [K’s] well-being as in Fisher and Dailey.” The court concluded that the record did not support a finding there was no ECE “with defendant relevant to physical or legal custody, nor can the evidence support any finding of proper cause or change of circumstances.” It added that, if it were to review the trial court’s findings on the statutory best-interest factors, it “would not agree with all of them.”

Decision to exercise of jurisdiction over a child & make her a temporary court ward; MCL 712A.2(b)(1); Due process

Holding that the trial court properly exercised temporary jurisdiction over the child (EGB), the court affirmed the trial court’s order that she be removed her from respondent-mother’s care and custody and made a temporary court ward. The DHHS petitioned to remove her “because of respondent’s physical, verbal, and emotional abuse and neglect of EGB. The petition alleged a history of abuse spanning several years.” The trial court assumed jurisdiction under MCL 712A.2(b)(1), based on respondent’s “failure to provide necessary care for EGB who faced substantial risk of harm to her mental well-being.” On appeal, respondent argued that she cared for EGB’s behavioral problems and CPS failed to provide services. She contended that “the trial court lacked sufficient evidence of respondent’s failure to provide proper care for EGB because she only removed EGB from therapy for one month while she sought another, more appropriate therapist.” However, the one-month gap in treatment was not the only concern about her care and treatment. She “had three prior CPS complaints which resulted in referrals for services, two of which” she completed. Yet, despite the services provided, her “parenting methods did not improve and she did not benefit from services provided to her. Respondent denied that the problems concerned her parenting.” The record indicated that she attended parent management training “but stopped. She blamed her lack of attendance on the worker for not calling her to schedule another appointment after her fallout with EGB’s therapist. Respondent, however, never attempted to schedule an appointment herself. Respondent’s failure to remedy her deficiencies despite being offered services to develop multiple tools with which to do so continued her failure to provide proper care for EGB.” In addition, her opposition to medicating EGB showed “her unwillingness to provide care for EGB against medical professionals’ opinions that doing so would be beneficial to EGB.” The trial court correctly held that “EGB faced a substantial risk of harm to her mental and physical well-being from respondent’s actions.”