Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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42 USC § 1983 action alleging an excessive force claim; Determining whether deadly force was justified; Barnes v Felix; Whether a second shooting violated the Fourth Amendment; Bletz v Gribble; Lee v Russ; “Failure to intervene” claim; Municipal liability; Failure to train
[This appeal was from the WD-MI.] The court held that plaintiff successfully pled a claim that defendants-police officers violated her husband’s (Stephen) “clearly established rights when they fired a second, deadly round of shots at him as he lay on the ground.” During their response to a domestic disturbance call, the two officers shot and killed Stephen. The interaction involved two separate shootings where the officers first shot him and seconds later, shot him again as he was lying on the ground. Plaintiff sued for excessive force, failure to intervene, and municipal liability on the part of defendant-City. The district court dismissed all claims. On appeal, as to the claim of excessive force, the court noted that after Barnes, when determining whether a reasonable officer could consider the use of deadly force justifiable based on an immediate threat, it “may divide the incident into segments,” and when analyzing each segment, it could “consider the entire sequence, including prior uses of force.” The court explained that while the reasonableness of the first shooting could be debated, “the facts of the second shooting are well-pled enough that the excessive-force claim” survived a motion to dismiss. The officers fired their second round when Stephen was on the ground and already wounded. The complaint alleged—and the video did “not contradict—that prior to and after being shot the first time, Stephen was largely compliant and gave no clear indication that he intended to resist.” The court concluded that by “the time he lay on the ground after a first round of fire that had clearly injured him, a reasonable officer would not have perceived Stephen as a threat.” It found that, after he had “been shot, without any signal that Stephen intended harm, the sole fact that he again reached for his gun was not enough to justify firing again.” Thus, the court reversed as to the excessive force claim. But it affirmed the dismissal of the claim for each officer’s failure to intervene in the other’s use of deadly force where “they did not have the opportunity to prevent it.” It also affirmed the dismissal of the municipal liability claim, agreeing “with the district court that, without more concrete allegations, this claim cannot proceed to discovery.”
Ripeness; Challenges to a zoning ordinance; Finality requirement; The Religious Land Use & Institutionalized Persons Act (RLUIPA); Alleged due process violation; Dismissal without prejudice; Whether the ordinance “chilled” First Amendment expression; The Freedom of Access to Clinic Entrances Act (FACE Act); Fourth Amendment search claim; Consent
The court held that plaintiff-Grand’s challenge to defendant-City’s zoning ordinance never “ripened” where he withdrew his special use permit application before the City reached a “final decision” about it. Further, the district court correctly dismissed his Fourth Amendment and FACE Act claims on the merits. Grand applied for the permit to use his home as “a place of religious assembly.” But before the City reached a final decision on the request, he withdrew it. He later sued the City and several officials under the RLUIPA, the FACE Act, and the First, Fourth, and Fourteenth Amendments of the U.S. Constitution. The district court ruled the RLUIPA, First Amendment, and Fourteenth Amendment claims were not ripe. It dismissed the FACE Act and Fourth Amendment claims on the merits. On appeal, the court explained the concepts of ripeness and noted the importance of the “finality” requirement in the land-use context—“a concrete and final decision by the local authorities.” It held that most of Grand’s challenges were unripe. He did “not point to a final decision implementing” the ordinance and he did “not show that delayed adjudication will harm him.” Thus, his RLUIPA, First Amendment, and Fourteenth Amendment claims were “unripe, both because they are not fit for review and because Grand will not be prejudiced by any delay.” It rejected his claims that a cease-and-desist letter he received constituted a final decision, or that further efforts with the Planning Commission would have been futile. Due to his “decision to withdraw his special use application, the zoning board had no application to act on[.]” And the court held that “‘futility’ is not an exception to finality[.] . . . A government’s position is final when it has adopted a settled position or refused to answer a complaint.” The court also found it difficult to see how he could “have a cognizable due process claim when his actions—dropping any effort to obtain relief—brought to an end whatever process was due.” Further, he was not unfairly harmed where his own actions created the ripeness issue. And because a dismissal based on ripeness is without prejudice, he could “file a new action if the City applies the ordinance to him in a way that violates his statutory or constitutional rights.” The court added that, having “chosen not to obtain a final decision, indeed any enforceable decision, about the application of the zoning rules to his home, he is the author of any chilling effect on his First Amendment interests, not the City.” Finally, his Fourth Amendment and FACE Act claims failed on the merits. Grand’s wife gave consent to the home inspection and the City’s actions did “not constitute ‘force,’ ‘threat of force,’ or ‘physical obstruction’ within the meaning of the” FACE Act. Affirmed.
Sufficiency of the evidence for convictions of embezzlement under MCL 750.174a & commingling of funds by a caregiver under MCL 750.145p(1); Whether defendant was legally required to keep client funds in a separate trust account; Fiduciary status of guardians & conservators; Duty to segregate assets held in the fiduciary capacity (MCL 700.1212(1)); Ineffective assistance of counsel; Failure to call witnesses; Failure to request jury instructions on lesser included offenses; Admission of business records under MRE 803(6); People v Safiedine
Holding that defendant-guardian/conservator had a legal duty to keep client funds in separate accounts, the court found that there was sufficient evidence to support her convictions of commingling of funds by a caregiver and embezzlement. It also rejected her ineffective assistance of counsel claims and found that the trial court did not abuse its discretion in permitting the admission of business records under MRE 803(6). She was convicted of embezzlement under MCL 750.174a and commingling of funds by a caregiver under MCL 750.145p(1) related to 10 clients (the wards). She “served as a legal guardian, and in some cases also conservator, for” them. As to the commingling conviction, the issue was whether MCL 700.1212(1)’s “requirement that a fiduciary ‘segregate[e] . . . assets held in the fiduciary capacity’ . . . constitutes a ‘law or administrative rule’ requiring funds to be ‘held in a separate trust account’ under MCL 750.145p(1)(a).” The court held “that MCL 700.1212(1) does require guardians to avoid commingling funds, and that the failure to do so can result in criminal penalties under MCL 750.145p(1)(a).” Defendant’s mixing of “the wards’ funds in her own personal account” constituted commingling under the latter statute. As to the embezzlement convictions, “defense counsel stipulated that the ‘vulnerable adult’ element” was met. The court determined that the evidence and testimony presented “at trial was sufficient to support the jury’s conclusion that defendant embezzled funds from the wards within the applicable statutory ranges for Counts” 1-10. And the prosecution established that she “knowingly and deliberately embezzled funds from the wards. The proofs revealed that defendant used a scheme to unjustly enrich herself and that she inappropriately pocketed the wards’ nominal accounts for her own benefit. The evidence included [her] mismanagement of each of her wards’ funds; [her] inconsistent statements” about the amounts of money taken from them and how she purportedly spent it; her “refusal or failure to produce records and receipts that could have supported her version of events; and [her] unauthorized use of [a ward’s] car for personal business.” Affirmed.
Divorce; Child support; Uniform Child Support Order (UCSO); Errors in a divorce judgment; Attorney fees; MCR 3.206(D)(2); Judicial bias; Kern v Kern-Koskela; Friend of the Court (FOC); Michigan Child Support Formula (MCSF)
The court held that the trial court abused its discretion in ordering defendant-ex-husband to pay child support before making any factual findings as to the parties’ incomes and made other errors requiring it to vacate the UCSO. It also reversed certain divorce judgment provisions and vacated the award of attorney fees to plaintiff-ex-wife. It found that the record lacked “any findings of fact as to the parties’ respective incomes used to calculate the amount of support ordered in the UCSO.” They testified at trial “as to their hourly wages, but the trial court made no findings on the record indicating it based the support award on those amounts. The UCSO” did not list their incomes. If “the trial court wanted assistance with the UCSO, it could have ordered the [FOC] to ‘investigate all relevant facts and to make a written report and recommendation to the parties and their attorneys and to the’” trial court as to support. But instead, “plaintiff’s counsel ‘ran the calculations of child support’ and submitted the proposed UCSO to the” trial court. Without any factual findings about their incomes, it was impossible to determine whether the MCSF was properly applied. Further, absent factual findings to review, the court could “only conclude the trial court abused its discretion when it determined the premium amount defendant should be responsible to pay” for the youngest child’s (M) health insurance. It reversed the divorce judgment and UCSO provisions that required both parties to provide M health insurance. As to attorney fees, the “trial court’s reasoning that defendant benefited from the representation of plaintiff’s counsel does not fall within the scope of MCR 3.206(D) and was therefore erroneous.” Further, nothing in the record indicated “plaintiff was unable to bear the expense of the action, and defendant was able to pay.” Thus, the court held that the “decision to grant plaintiff’s request for attorney fees fell outside the range of principled outcomes and constituted an abuse of discretion.” But it rejected defendant’s judicial bias claim. The trial court was directed on remand to “compel plaintiff to provide income documentation to re-calculate defendant’s support obligation[,]” and to make findings of fact as to “attorney fees under MCR 3.206(D), and plaintiff’s obligation for the mortgage, utilities, and property taxes” related to the marital home.
Medical malpractice; Application of the Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475; Franklin v McLaren Flint; “Gross negligence”; “Willful misconduct”
Comparing Franklin, the court held that defendants were “immune from liability for . . . alleged omissions in providing care to plaintiff” under MCL 691.1475. Plaintiff was admitted to defendant-hospital with COVID-19 symptoms, diagnosed with COVID-19, and later transferred to defendants-secondary care centers, where he allegedly developed pressure ulcers while also receiving care. The trial court granted summary disposition for defendants, finding PHCIA immunity applied and that plaintiff alleged only ordinary negligence. Plaintiff argued “that the PHCIA was inapplicable to his claims because he was not harmed because of healthcare services provided to him in support of the state’s response to the COVID-19 pandemic and the injuries were unrelated to treatment for COVID-19.” Applying Franklin and the language of the PHCIA, the court found plaintiff’s injuries arose from “health care services in support of this state’s response to the COVID-19 pandemic” because he “presented at the hospital with signs of COVID-19, was admitted to the COVID-19 floor for COVID-19 treatment, and allegedly developed pressure ulcers as a result of that care,” and the subsequent facility care remained sufficiently connected to that treatment. Plaintiff further argued “that his injuries were caused by the negligent omissions of defendants . . . and such negligent omissions did not fall within the scope of the immunity provided by the PHCIA. But in Franklin, the plaintiff likewise alleged that the development of his pressure ulcers was attributable to the acts and omissions of the defendant, including a list of actions that the defendant neglected to administer like turning, repositioning, and offloading patients to prevent pressure ulcers for those at risk of sustaining such injuries.” The court held that “MCL 691.1475 does not differentiate between affirmative acts or the failure to act, rather, the statutory language provides that healthcare providers and healthcare facilities are ‘not liable for an injury, including death, sustained by an individual by reason of those services, regardless of how, under what circumstances, or by what cause those injuries are sustained” so omissions in wound care were likewise covered. Affirmed.