Fourth Amendment excessive force claim under 42 USC § 1983; Whether defendant-deputy’s use of deadly force was “unreasonable”; Palma v Johns; Whether there was an “imminent threat of violence”; Whether defendant considered plaintiff’s mental state; Duration of the confrontation; Whether non-violent methods could have been used; Whether there was a violation of “clearly established law”; Sample v Bailey; Mullins v Cyranek; Martin v City of Broadview Heights

The court affirmed the district court’s denial of qualified immunity to defendant-Deputy Smiley, concluding her use of deadly force when conducting a “welfare check” was unreasonable. She responded to a call from a public park. Dispatch reported to her that a man “was running down the trail with a big water jug in his hands and making a strange noise like ‘rolling his R’s,’ that he had previously been inside the car with his head on the steering wheel, and that there may have been a lighter inside his car. Dispatch also relayed” the caller’s “suspicion that ‘he might be on something.’” The individual was plaintiff-Driscoll, who had been diagnosed with schizophrenia and bipolar disorder and could become erratic during his manic phase. Smiley and Driscoll’s interaction eventually resulted in Smiley shooting Driscoll as he approached her. He was permanently injured, and sued under § 1983. The court noted that their encounter was “brief” and that she had no reason to think that Driscoll was dangerous or armed where he was only carrying a jug of water. Even though she may have believed that the jug contained gasoline and that he had a lighter in his car, she had “no reason to think that Driscoll was about to ignite his jug.” The court also found that it “was unreasonable for Deputy Smiley to conclude from his erratic behavior that he posed an imminent threat of serious physical harm.” It held that given that he “he posed no threat to Deputy Smiley or anyone else, his evident diminished capacity supports the conclusion that Deputy Smiley’s actions throughout the encounter were unreasonable.” She was presented “with a noncompliant but non-dangerous person. He had no weapon and gave no indication that he intended to harm others. He was not breaking any laws. Indeed, Deputy Smiley had been called to check on his well-being. That his behavior confused or concerned [her] and others in the park did not provide justification for the use of force, much less deadly force. Nor did his noncompliance with Deputy Smiley’s orders justify lethal force.” Further, viewing “the facts in the light favorable to Driscoll, Deputy Smiley violated [his] clearly established right not to be shot as an unarmed, nondangerous person, even though he was displaying erratic and noncompliant behavior and advancing toward” her. The court found that because Martin put her “on notice that she could not use a lower level of force on Driscoll, her use of greater force was clearly unreasonable under similar circumstances.”

Free speech rights claim under 42 USC § 1983; Request for a preliminary injunction against prosecution under Michigan’s “terrorist threat” statute (MCL 750.543m(1)(a)); “True-threat” precedent; Preliminary injunction factors; Winter v National Res Def Council; Likelihood of success on the merits; “Irreparable harm”; Distinction between threatened enforcement against past speech as opposed to future speech

[This appeal was from the ED-MI.] The court affirmed the district court’s denial of plaintiff-Hess’s motion for a preliminary injunction against possible prosecution under Michigan’s “terrorist-threat” statute, concluding that while he could succeed on the merits of his free-speech claim, he was unable to establish irreparable harm. Hess raised allegations of “ballot box tampering” to an Oakland County election official and said “hang Joe for treason” to another individual in the courthouse lobby. He was charged under Michigan’s “terrorist-threat” statute, MCL 750.543m(1)(a), for making that statement. The charge against him was dismissed after the Michigan Court of Appeals held in another case that the statute was unconstitutional. Hess then filed this suit against defendants-Oakland County and various County officials for, among other claims, violating his First Amendment right to free speech. Michigan’s Supreme Court reversed the Court of Appeals as to the constitutionality of the statute, reviving “the possibility that Oakland County could prosecute Hess under the terrorist-threat statute after all.” To forestall this, he sought a preliminary injunction. The district court denied the injunction, ruling that Hess was unlikely to succeed on the merits. On appeal, the court agreed with Hess that he was likely to succeed on the merits on the basis “he did not express a true threat by saying ‘hang Joe for treason’ in a ‘normal conversational tone’ made outside” the election official’s “presence, in what Hess believed was a private remark” to another member of the public. But the court held that he was unable to establish the irreparable harm requirement for an injunction because even though “the threat of prosecution based on future speech risks irreparable harm, the threat of prosecution based on past speech does not. And Hess has made no showing, at least not with any specificity, that the terrorist-threat statute will chill his future speech.” The court noted that he could “avail himself of expeditious state-court procedures to litigate his First Amendment defense against a good-faith prosecution.” It rejected his claim that the pressures of having to defend against the charge constituted sufficient irreparable harm.

Fourth Amendment excessive force claim under 42 USC § 1983; Whether defendant-deputy’s use of deadly force was “unreasonable”; Palma v Johns; Whether there was an “imminent threat of violence”; Whether defendant considered plaintiff’s mental state; Duration of the confrontation; Whether non-violent methods could have been used; Whether there was a violation of “clearly established law”; Sample v Bailey; Mullins v Cyranek; Martin v City of Broadview Heights

The court affirmed the district court’s denial of qualified immunity to defendant-Deputy Smiley, concluding her use of deadly force when conducting a “welfare check” was unreasonable. She responded to a call from a public park. Dispatch reported to her that a man “was running down the trail with a big water jug in his hands and making a strange noise like ‘rolling his R’s,’ that he had previously been inside the car with his head on the steering wheel, and that there may have been a lighter inside his car. Dispatch also relayed” the caller’s “suspicion that ‘he might be on something.’” The individual was plaintiff-Driscoll, who had been diagnosed with schizophrenia and bipolar disorder and could become erratic during his manic phase. Smiley and Driscoll’s interaction eventually resulted in Smiley shooting Driscoll as he approached her. He was permanently injured, and sued under § 1983. The court noted that their encounter was “brief” and that she had no reason to think that Driscoll was dangerous or armed where he was only carrying a jug of water. Even though she may have believed that the jug contained gasoline and that he had a lighter in his car, she had “no reason to think that Driscoll was about to ignite his jug.” The court also found that it “was unreasonable for Deputy Smiley to conclude from his erratic behavior that he posed an imminent threat of serious physical harm.” It held that given that he “he posed no threat to Deputy Smiley or anyone else, his evident diminished capacity supports the conclusion that Deputy Smiley’s actions throughout the encounter were unreasonable.” She was presented “with a noncompliant but non-dangerous person. He had no weapon and gave no indication that he intended to harm others. He was not breaking any laws. Indeed, Deputy Smiley had been called to check on his well-being. That his behavior confused or concerned [her] and others in the park did not provide justification for the use of force, much less deadly force. Nor did his noncompliance with Deputy Smiley’s orders justify lethal force.” Further, viewing “the facts in the light favorable to Driscoll, Deputy Smiley violated [his] clearly established right not to be shot as an unarmed, nondangerous person, even though he was displaying erratic and noncompliant behavior and advancing toward” her. The court found that because Martin put her “on notice that she could not use a lower level of force on Driscoll, her use of greater force was clearly unreasonable under similar circumstances.”

Free speech rights claim under 42 USC § 1983; Request for a preliminary injunction against prosecution under Michigan’s “terrorist threat” statute (MCL 750.543m(1)(a)); “True-threat” precedent; Preliminary injunction factors; Winter v National Res Def Council; Likelihood of success on the merits; “Irreparable harm”; Distinction between threatened enforcement against past speech as opposed to future speech

[This appeal was from the ED-MI.] The court affirmed the district court’s denial of plaintiff-Hess’s motion for a preliminary injunction against possible prosecution under Michigan’s “terrorist-threat” statute, concluding that while he could succeed on the merits of his free-speech claim, he was unable to establish irreparable harm. Hess raised allegations of “ballot box tampering” to an Oakland County election official and said “hang Joe for treason” to another individual in the courthouse lobby. He was charged under Michigan’s “terrorist-threat” statute, MCL 750.543m(1)(a), for making that statement. The charge against him was dismissed after the Michigan Court of Appeals held in another case that the statute was unconstitutional. Hess then filed this suit against defendants-Oakland County and various County officials for, among other claims, violating his First Amendment right to free speech. Michigan’s Supreme Court reversed the Court of Appeals as to the constitutionality of the statute, reviving “the possibility that Oakland County could prosecute Hess under the terrorist-threat statute after all.” To forestall this, he sought a preliminary injunction. The district court denied the injunction, ruling that Hess was unlikely to succeed on the merits. On appeal, the court agreed with Hess that he was likely to succeed on the merits on the basis “he did not express a true threat by saying ‘hang Joe for treason’ in a ‘normal conversational tone’ made outside” the election official’s “presence, in what Hess believed was a private remark” to another member of the public. But the court held that he was unable to establish the irreparable harm requirement for an injunction because even though “the threat of prosecution based on future speech risks irreparable harm, the threat of prosecution based on past speech does not. And Hess has made no showing, at least not with any specificity, that the terrorist-threat statute will chill his future speech.” The court noted that he could “avail himself of expeditious state-court procedures to litigate his First Amendment defense against a good-faith prosecution.” It rejected his claim that the pressures of having to defend against the charge constituted sufficient irreparable harm.

Entitlement to a brokerage fee from a commercial lease; Exclusive listing agreement (ELA); Third-party beneficiary cooperating broker; “Any”; “Assistance”; “Cooperate in good faith”; Contractual or common-law indemnification; Provision barring indemnification based on “gross negligence or willful misconduct”; Attorney fees; Whether filing a separate suit was necessary; Pransky v Falcon Group, Inc; Fleet Bus Credit v Krapohl Ford Lincoln Mercury Co; The Dufresne Spencer Group, LLC (DSG); Letter of intent (LOI)

In this dispute over entitlement to a brokerage fee from a commercial lease, the court held that plaintiff-Colliers was a third-party beneficiary cooperating broker entitled to a commission under the contract at issue (the ELA). It also concluded the trial court did not err in finding that defendant-Signature Associates “failed to cooperate in good faith with Colliers.” Further, Signature and defendant-14 Mack were not entitled to contractual or common-law indemnification by defendant-DSG. Finally, the trial court did not err in denying DSG’s motion for attorney fees where DSG did not sue to enforce the contractual attorney fee provision. Thus, in these consolidated appeals the court affirmed the trial court’s orders granting Colliers partial summary disposition and denying DSG attorney fees. “Under the ELA, 14 Mack undertook the promise to directly pay a leasing commission to outside brokers who assisted Signature in procuring a lease for 14 Mack. The parties do not dispute that Colliers was the outside broker used by DSG, at least during the Suite 100 negotiations.” Thus, it qualified “as an intended third-party beneficiary of the ELA so long as it assisted Signature in procuring ‘any lease.’” There was no dispute “that Signature was ultimately able to ‘procure’ a lease with DSG for Suite 500.” And if Colliers assisted Signature in procuring “any lease in some way, it is entitled to a commission, regardless of the fact that DSG terminated Colliers before negotiating the Suite 500 lease directly. As the trial court noted, Colliers initiated the negotiations for the Suite 100 lease and introduced the parties.” The court next found that “Signature’s silence allowed 14 Mack to remove Colliers from the LOI—which also allowed it to claim a higher commission than it was entitled—constituted a failure to act honestly and in accordance with its obligations under the ELA.” Contractual indemnification was barred under the ELA “if the party seeking it caused the damages through either gross negligence or willful misconduct.” The court concluded that as both 14 Mack and Signature could “be said to have engaged in gross negligence and willful misconduct,” neither was entitled to contractual indemnification. Their common-law indemnification claim failed for the same reasons.

Ineffective assistance of counsel; Whether a naturalized defendant’s attorney has a Sixth Amendment duty to inform a client that a guilty plea could result in denaturalization; Farhane v United States (2d Cir); Whether denaturalization was only a “collateral consequence” stemming from the plea agreement; Chaidez v United States; Padilla v Kentucky

[This appeal was from the ED-MI.] The court held that neither the Sixth Amendment nor case precedent require defense attorneys to notify a naturalized citizen that a guilty plea may lead to denaturalization. Defendant-Singh’s application for asylum was denied. He then “submitted another asylum application listing a different name, birth date, place of birth, and parents. None of this new information was true.” After he married an American citizen, he “applied for permanent-resident status, using the same false information listed on his second asylum application.” He falsely attested that he had never been denied an immigration benefit and that he had never offered false information on an immigration form. He was granted permanent-resident status and eventually became a naturalized U.S. citizen. He later pled guilty to using a fraudulent passport. When the government began proceedings to denaturalize him, he sought a writ of coram nobis before the district court, arguing that his conviction was invalid because his attorney never informed him that pleading guilty could result in denaturalization. But his plea agreement warned that his “plea could ‘affect or even foreclose his eligibility to remain in this country.’” The district court denied the writ. He later moved for reconsideration based on the Second Circuit’s decision in Farhane, which “held that the Sixth Amendment requires defense attorneys to advise naturalized citizens of the risk of denaturalization and eventual deportation following a guilty plea.” The district court denied his motion. On appeal, the court found that “Farhane misapplied longstanding Supreme Court precedent.” It noted that the Supreme Court held in Chaidez that a “defense attorney isn’t constitutionally required to inform his client of any collateral consequences stemming from the plea agreement.” The court declined Singh’s urging to adopt Farhane, rejecting that court’s efforts to “shoehorn denaturalization into Padilla’s holding.” It noted that “a criminal conviction isn’t ‘enmeshed’ with denaturalization like it is with deportation. So the rationale for requiring a defense attorney to advise his client of the risk of deportation following a guilty plea simply doesn’t apply in the denaturalization context.” Affirmed.

Motion to change child’s domicile; MCL 722.31(4); Factors (4)(a)-(c) & (e); Yachcik v Yachcik; Credibility determinations

Holding that the trial court’s findings on the challenged MCL 722.31(4) factors were not against the great weight of the evidence, the court concluded the trial court did not abuse its discretion in denying defendant-father’s motion to change the domicile of the parties’ child. He challenged the trial court’s findings on all of the 722.31(4) factors except (d). As to factor (a), the trial court found that he failed to show “the move would improve the quality of his and” the child’s (IS) lives on any of the asserted “grounds—i.e., his wife’s increased earning capacity, safety, and better educational and extracurricular opportunities. It further found that the move would ‘uproot[]’ IS’s life by, in relevant part, moving her away from plaintiff, certain family, and IS’s friends. None of these findings were against the great weight of the evidence.” Further, the trial court’s finding that factor (b) “weighed against a domicile change was not contrary to the great weight of the evidence.” The trial court determined “that ‘each party ha[d] exercised regular parenting time with’” IS. While defendant and his wife testified that plaintiff-mother “did not use all her court-ordered parenting time,” the court deferred “to the trial court’s decision to credit” her testimony that, when she did not do so, it was for legitimate reasons, including her hospitalization for complications with a high-risk pregnancy. As to factor (c), the court held that the trial court’s finding “that defendant’s proposed parenting schedule was not sufficient to ‘preserve and foster’ the relationship between plaintiff and IS” was not against the great weight of the evidence. Defendant and his wife proposed “having defendant travel to Michigan with IS, paying for plaintiff’s travel to Georgia, and providing IS a phone with which she could communicate with plaintiff any time.” But plaintiff testified “she had never gone more than seven days without seeing IS and did not want to regularly go days-at-a-time without seeing her. She” also asserted that traveling back and forth between the states was not feasible for her given that she had an infant child. As to factor (e), “any evidence of domestic violence related to events that allegedly occurred before entry of the” 11/24 order. Given that defendant’s counsel agreed that the hearing’s scope “was limited to events occurring after that order, the trial court’s findings as to this factor were not against the great weight of the evidence.” Affirmed.

Ineffective assistance of counsel; Whether a naturalized defendant’s attorney has a Sixth Amendment duty to inform a client that a guilty plea could result in denaturalization; Farhane v United States (2d Cir); Whether denaturalization was only a “collateral consequence” stemming from the plea agreement; Chaidez v United States; Padilla v Kentucky

[This appeal was from the ED-MI.] The court held that neither the Sixth Amendment nor case precedent require defense attorneys to notify a naturalized citizen that a guilty plea may lead to denaturalization. Defendant-Singh’s application for asylum was denied. He then “submitted another asylum application listing a different name, birth date, place of birth, and parents. None of this new information was true.” After he married an American citizen, he “applied for permanent-resident status, using the same false information listed on his second asylum application.” He falsely attested that he had never been denied an immigration benefit and that he had never offered false information on an immigration form. He was granted permanent-resident status and eventually became a naturalized U.S. citizen. He later pled guilty to using a fraudulent passport. When the government began proceedings to denaturalize him, he sought a writ of coram nobis before the district court, arguing that his conviction was invalid because his attorney never informed him that pleading guilty could result in denaturalization. But his plea agreement warned that his “plea could ‘affect or even foreclose his eligibility to remain in this country.’” The district court denied the writ. He later moved for reconsideration based on the Second Circuit’s decision in Farhane, which “held that the Sixth Amendment requires defense attorneys to advise naturalized citizens of the risk of denaturalization and eventual deportation following a guilty plea.” The district court denied his motion. On appeal, the court found that “Farhane misapplied longstanding Supreme Court precedent.” It noted that the Supreme Court held in Chaidez that a “defense attorney isn’t constitutionally required to inform his client of any collateral consequences stemming from the plea agreement.” The court declined Singh’s urging to adopt Farhane, rejecting that court’s efforts to “shoehorn denaturalization into Padilla’s holding.” It noted that “a criminal conviction isn’t ‘enmeshed’ with denaturalization like it is with deportation. So the rationale for requiring a defense attorney to advise his client of the risk of deportation following a guilty plea simply doesn’t apply in the denaturalization context.” Affirmed.

Policy rescission; Bazzi v Sentinel Ins Co; Equity balancing; Innocent third party; Pioneer State Mut Ins Co v Wright; Fraud; Insurer due diligence; Farm Bureau Gen Ins Co of MI v ACE Am Ins Co

The court held that the trial court erred by granting summary disposition to plaintiff-insurer on rescission because the first equity-balancing factor weighed against rescission. After defendant-Anthony, who was driving while intoxicated and with a suspended license, struck and killed decedent, defendant-estate sued Anthony for wrongful death. Plaintiff then rescinded defendant-Debbie’s policy, arguing that Debbie made material misrepresentations when she added Anthony’s truck to her policy without disclosing that Anthony owned the truck or lived in her home. The parties did not dispute fraud but disputed whether rescission was equitable against an innocent third party. On appeal, the court held that under Bazzi, rescission is equitable and “‘should not be granted in cases where the result thus obtained would be unjust or inequitable[.]’” The court next held that the trial court erred in finding that the first Pioneer factor favored rescission because plaintiff could have uncovered the fraud before the crash “through minimal due diligence.” Plaintiff did not ask Debbie whether she owned the truck, and a “simple title search” would have revealed the true owner and put plaintiff on notice that Debbie failed to disclose the truck’s ownership. Because plaintiff’s “failure to exercise due diligence resulted in Debbie being able to ‘commit the wrong,’” plaintiff was the blameless party that had to bear the loss. Reversed and remanded.

Termination under § 19b(3)(c)(i); Children’s best interests; Relative placement; In re Olive/Metts Minors

The court held that the trial court did not err by terminating respondent-mother’s parental rights because the conditions leading to adjudication continued to exist and termination was in the children’s best interests. The case arose from allegations of substance abuse, criminality, domestic violence, and medical neglect, including unexplained injuries to one child (RR) and failure to pursue testing for Hemophilia B despite family history. After adjudication, the DHHS provided services, but respondent attended only 25 of 150 drug screens, tested positive for meth in 21 of those, inconsistently attended visits, failed to participate in medical care, and presented allegedly falsified negative drug screens. On appeal, the court held that § (c)(i) was established because more than 182 days had elapsed and respondent had not achieved meaningful change, with her continued substance abuse, poor compliance, and failure to benefit from services showing no reasonable likelihood of rectification within a reasonable time. As to best interests, the court held that termination was supported by the children’s need for permanency, stability, and finality, their positive progress in placement with relatives willing to adopt, and respondent’s continued lack of parenting ability and refusal to take accountability. Affirmed.