42 USC § 1983; Qualified immunity; Binay v Bettendorf; Fourth Amendment; Search warrant; Probable cause; False statements or omissions in warrant affidavit; Tlapanco v Elges; Sykes v Anderson; Maintaining a drug house; MCL 333.7405(1)(d); Unreasonable seizure during search-warrant execution; Detention of occupant during search; Michigan v Summers; Excessive force; Objective reasonableness; Graham v Connor; Clearly established right; Obvious constitutional violation; District of Columbia v Wesby; Fourteenth Amendment substantive due process; Duplicative claim

[This appeal was from the WD-MI.] The court held that defendants were entitled to qualified immunity on plaintiff’s unlawful-search claim and that his Fourteenth Amendment claim failed, but he adequately pled a clearly established Fourth Amendment unreasonable-seizure claim against defendant-officer Josephs. Plaintiff filed this § 1983 action after officers executed a search warrant at his residence during an investigation into suspected unlawful marijuana activity. The district court granted defendants qualified immunity and dismissed his claims. On appeal, the court first held that the search warrant was supported by probable cause even after removing the allegedly false statements and adding the alleged omissions. It reasoned the “unchallenged facts suffice to establish probable cause” that plaintiff maintained a dwelling or building used for “keeping or selling controlled substances.” The court next held that plaintiff plausibly alleged an unreasonable seizure based on Josephs repeatedly refusing to let him use his restroom, telling him to urinate outside, and then allowing him back inside shortly afterward. Plaintiff alleged he was compliant, unarmed, handcuffed, and under the supervision of 18 officers, and the court reasoned it was “difficult to see” how a supervised bathroom trip would have jeopardized the search. It further held that the right was clearly established because this was an “obvious” violation tied to “privacy and human decency.” But the court held that plaintiff’s substantive due process claim was duplicative because the same conduct was governed by the Fourth Amendment, not “the more generalized notion of substantive due process.” Affirmed in part, reversed in part, and remanded.

42 USC § 1983; Qualified immunity; Binay v Bettendorf; Fourth Amendment; Search warrant; Probable cause; False statements or omissions in warrant affidavit; Tlapanco v Elges; Sykes v Anderson; Maintaining a drug house; MCL 333.7405(1)(d); Unreasonable seizure during search-warrant execution; Detention of occupant during search; Michigan v Summers; Excessive force; Objective reasonableness; Graham v Connor; Clearly established right; Obvious constitutional violation; District of Columbia v Wesby; Fourteenth Amendment substantive due process; Duplicative claim

[This appeal was from the WD-MI.] The court held that defendants were entitled to qualified immunity on plaintiff’s unlawful-search claim and that his Fourteenth Amendment claim failed, but he adequately pled a clearly established Fourth Amendment unreasonable-seizure claim against defendant-officer Josephs. Plaintiff filed this § 1983 action after officers executed a search warrant at his residence during an investigation into suspected unlawful marijuana activity. The district court granted defendants qualified immunity and dismissed his claims. On appeal, the court first held that the search warrant was supported by probable cause even after removing the allegedly false statements and adding the alleged omissions. It reasoned the “unchallenged facts suffice to establish probable cause” that plaintiff maintained a dwelling or building used for “keeping or selling controlled substances.” The court next held that plaintiff plausibly alleged an unreasonable seizure based on Josephs repeatedly refusing to let him use his restroom, telling him to urinate outside, and then allowing him back inside shortly afterward. Plaintiff alleged he was compliant, unarmed, handcuffed, and under the supervision of 18 officers, and the court reasoned it was “difficult to see” how a supervised bathroom trip would have jeopardized the search. It further held that the right was clearly established because this was an “obvious” violation tied to “privacy and human decency.” But the court held that plaintiff’s substantive due process claim was duplicative because the same conduct was governed by the Fourth Amendment, not “the more generalized notion of substantive due process.” Affirmed in part, reversed in part, and remanded.

Interlocutory appeal; Motion in limine; Former testimony of unavailable witnesses; MRE 804(b)(1); “Unavailable” witness; MRE 804(a); Opportunity & similar motive to develop testimony; People v Farquharson; Ineffective assistance of counsel; People v Ginther; Failure to obtain expert assistance; People v Ackley; Expert-witness disclosures; MCR 6.201(A)(3)

In an issue of first impression, the court held that the trial court did not abuse its discretion by denying defendant’s motion to admit two experts’ Ginther-hearing testimony at his new trial under MRE 804(b)(1). He was convicted of felony murder and first-degree child abuse, but the trial court granted him a new trial after a Ginther hearing where two forensic-pathology experts supported the defense theory that the child died from “the cumulative effect of multiple earlier injuries.” Before retrial, defendant moved to admit the experts’ prior testimony, arguing one expert had died and the other was unavailable. The trial court denied the motion, finding the prosecution lacked “an opportunity and similar motive” to develop the testimony at the Ginther hearing. On appeal, the court did “not foreclose the possibility” that Ginther-hearing testimony may be admissible at a later trial, but emphasized that admissibility under MRE 804(b)(1) is “a fact-specific inquiry.” It held that the similar-motive requirement was not met here for three reasons. First, the trial court in the Ginther hearing restricted case-specific expert testimony, making the hearing’s scope “substantially more limited than what the scope of expert testimony would be at trial.” Second, the prosecution lacked the expert disclosures it would have received for trial, and “effective cross-examination of an expert witness requires advance preparation.” Third, the excluded testimony was expert testimony, not lay testimony, and an expert’s opinion “ought to be subject to replication by some other qualified expert.” Because the prosecution did not have a similar motive to develop the former testimony through cross-examination, the court affirmed.

Juvenile adjudication; Detention in a facility; Failure to use a detention screening tool; MCL 712A.15(3); MCR 3.907(D); Plain error review; Whether respondent’s substantial rights were affected; Compliance with the requirements of MCL 712A.18(1) & MCR 3.943(E)(2) (applicable to orders of disposition); Setting a bond; Harmless error

The court held that respondent-juvenile failed to show that his substantial rights were affected by the trial court’s plain error in not using a detention screening tool before placing him into a detention facility. His claims that it also erred in not complying with MCL 712A.18(1) and MCR 3.943(E)(2) failed because those provisions address orders of disposition, and an order of adjudication was at issue here. Finally, if the trial court erred in “setting a bond, the error was harmless.” Thus, the court affirmed the order of adjudication placing him in a detention facility. It was clear that “MCL 712A.15(3) and MCR 3.907(D) required the trial court to use a detention screening tool on respondent before [it] was permitted to order [him] detained. The statute repeatedly uses the word ‘shall,’ and the court rule repeatedly uses the word ‘must[.]’” Yet nothing in the record indicated the trial court “used a detention screening tool before ordering respondent into a detention facility.” But the question of whether this plain error affected his substantial rights was “difficult because neither party on appeal explains what the detention screening tool is or what it consists of.” In the absence of “any information about the” tool, the court could not say whether the trial court’s failure to use it prejudiced respondent. Thus, he could not prevail because he had “the burden of establishing that a plain error affected his substantial rights.” However, the court was able to address his claim “that the trial court could not ‘make [an] informed placement decision[]’ without using a detention screening tool.” It found that “the trial court’s lengthy explanation for its decision” reflected that it “carefully considered its options and did not order respondent into a detention facility lightly. [It] explained that it viewed detention as the final option after all other avenues were exhausted, and it opined that” they had been exhausted. The record supported that conclusion. The trial court detailed “how respondent repeatedly tested positive for marijuana in violation of his probation, and how” it repeatedly overlooked his positive tests and gave “him chances to stop using.” In addition, he “was involved in criminal cases in a different county.”

Sufficiency of the evidence of identity as the perpetrator; Prosecutorial misconduct; Alleged misstatement of the evidence; Curative instruction

Holding that there was sufficient evidence to support defendant’s identity as the shooter, and that the prosecutor’s challenged closing argument remarks were supported by the evidence, the court affirmed his convictions. He was convicted of second-degree murder, AWIM, and felony-firearm. The court concluded that “there was ample evidence” allowing a rational trier of fact to find beyond a reasonable doubt that he was the shooter. Both survivors, L and B, identified him as such. They were both in L’s “car as the shooter leaned his upper body out of the Jeep, said, ‘Hey, my n****r,’ and fired. A rational jury could have believed their testimony and concluded that defendant was the shooter.” He asserted that their “identification testimony was flawed because [they] could have seen the shooter only briefly and initially did not identify him to the police. But these complaints largely amount to a question of whether” their testimony was credible, which was solely for the jury. The two men only had “a couple seconds to see the shooter. But both insisted at trial that they knew defendant was the shooter. [L] said that he was ‘good with faces.’ And the shooter likely caught their attention by speaking and leaning out of the Jeep. Although neither” one of them knew him “well and both agreed that defendant did not have especially distinguishing features, both had seen [him] before in person and on social media. So the jury was free to believe [their] testimony that they were able to identify defendant as the shooter during this brief window of time.” As to the failure to identify him to the police that night, the jury was free to believe their “testimony that they initially lied because they did not want to get involved but that they knew all along that defendant was the shooter. There was also significant additional evidence presented that corroborated [their] identification testimony and circumstantially linked defendant to the crime[,]” including evidence linking him to the shooter’s Jeep.

Sufficiency of the evidence for an operating while intoxicated (OWI) causing death conviction (MCL 257.625(4)); Proximate cause; People v Schaefer; Superseding cause; People v Feezel; Gross negligence; Great weight of the evidence; People v Lacalamita

Rejecting defendant’s challenge as to the proximate cause element, the court held that there was sufficient evidence to support his OWI causing death conviction, and that the conviction was not against the great weight of the evidence. He contended that the victim’s (M) “intoxication and actions were grossly negligent and therefore a superseding cause that relieved defendant of criminal liability.” The court concluded that, viewing “the evidence in the light most favorable to the prosecution,” as required, “a rational trier of fact could have found that [M’s] conduct was merely negligent and did not break the causal chain.” It determined that a rational trier of fact could have found that while M “was intoxicated, his intoxication did not cause him to act in a manner that was not reasonably foreseeable. A victim’s conduct of driving while intoxicated does not automatically amount to a superseding cause as a matter of law; instead, proximate causation must be decided by the jury on a case-by-case basis.” The expert testimony about the effect of M’s “intoxication on the crash was mixed.” The court concluded “that a rational jury could have found that [M’s] actions amounted to mere ordinary negligence such that defendant’s operation of his vehicle was the proximate cause of the accident.” While defendant argued that the “case ‘is eerily like’ Feezel[,]” the court noted that “Feezel does not mandate that the jury reach a particular outcome; instead, [it] concerns whether evidence should have been submitted to the jury” as to whether a victim was grossly negligent. The “trial court complied with Feezel by submitting the issue” of whether M’s intoxication was a superseding cause “to the jury, and the jury rendered its verdict.” As to his great weight argument, the evidence reasonably supported “the conclusion that [M] was simply negligent as opposed to grossly negligent, [it] does not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand, and there” also was “no indication that the jury’s decision was motivated by passion, prejudice, or some other extraneous influence.” Affirmed.

Sufficiency of evidence; Disturbing the peace; MCL 750.170; “Disturbance”; People v Mash; Resisting or obstructing a police officer; MCL 750.81d(1); Lawful command; MCL 750.81d(7)(a); People v Vandenburg; Indigency screening; MCR 6.005(B)

The court held that sufficient evidence supported defendant’s convictions of disturbing the peace and resisting or obstructing a police officer, and that the trial court complied with MCR 6.005(B). Defendant entered a township hall, yelled at and insulted employees, refused to leave after being asked, and later refused an officer’s command to go. The jury convicted him of disturbing the peace and resisting or obstructing Officer S, and the trial court denied his posttrial motion for a directed verdict or new trial. On appeal, the court first held that sufficient evidence supported the disturbing-the-peace conviction because witnesses testified defendant aggressively yelled, used vulgar terms, threatened employees by saying he knew where they lived, poked an employee with a pen, and made multiple employees uncomfortable enough to call police or seek help. This evidence supported a finding he disrupted an otherwise quiet township hall and was not “merely stating his position or opinion.” The court also held that sufficient evidence supported resisting or obstructing because Officer S told defendant “you gotta go,” which “cannot be characterized as anything but a command,” and defendant knowingly failed to comply for more than 30 seconds before the officer touched him. The officer’s lawful command, defendant’s refusal, and his undisputed knowledge that Officer S was a police officer performing his duties allowed a rational jury to find the elements proved. Finally, the court held that the trial court referred defendant for indigency screening by identifying the public defender, explaining the screening process, and telling him he needed to contact that office if he wanted help obtaining an expert. Affirmed.

Juvenile adjudication; Detention in a facility; Failure to use a detention screening tool; MCL 712A.15(3); MCR 3.907(D); Plain error review; Whether respondent’s substantial rights were affected; Compliance with the requirements of MCL 712A.18(1) & MCR 3.943(E)(2) (applicable to orders of disposition); Setting a bond; Harmless error

The court held that respondent-juvenile failed to show that his substantial rights were affected by the trial court’s plain error in not using a detention screening tool before placing him into a detention facility. His claims that it also erred in not complying with MCL 712A.18(1) and MCR 3.943(E)(2) failed because those provisions address orders of disposition, and an order of adjudication was at issue here. Finally, if the trial court erred in “setting a bond, the error was harmless.” Thus, the court affirmed the order of adjudication placing him in a detention facility. It was clear that “MCL 712A.15(3) and MCR 3.907(D) required the trial court to use a detention screening tool on respondent before [it] was permitted to order [him] detained. The statute repeatedly uses the word ‘shall,’ and the court rule repeatedly uses the word ‘must[.]’” Yet nothing in the record indicated the trial court “used a detention screening tool before ordering respondent into a detention facility.” But the question of whether this plain error affected his substantial rights was “difficult because neither party on appeal explains what the detention screening tool is or what it consists of.” In the absence of “any information about the” tool, the court could not say whether the trial court’s failure to use it prejudiced respondent. Thus, he could not prevail because he had “the burden of establishing that a plain error affected his substantial rights.” However, the court was able to address his claim “that the trial court could not ‘make [an] informed placement decision[]’ without using a detention screening tool.” It found that “the trial court’s lengthy explanation for its decision” reflected that it “carefully considered its options and did not order respondent into a detention facility lightly. [It] explained that it viewed detention as the final option after all other avenues were exhausted, and it opined that” they had been exhausted. The record supported that conclusion. The trial court detailed “how respondent repeatedly tested positive for marijuana in violation of his probation, and how” it repeatedly overlooked his positive tests and gave “him chances to stop using.” In addition, he “was involved in criminal cases in a different county.”

Property tax assessment; True cash value (TCV); MCL 211.27(1); Mathieu-Gast Home Improvement Act exemption (M-G exemption); MCL 211.27(2); Normal repairs, replacement, & maintenance; Burden of proof; MCL 205.737(3); Burden of going forward; President Inn Props, LLC v Grand Rapids; Tax Tribunal’s (TT) independent duty to determine value; Great Lakes Div of Nat’l Steel Corp v Ecorse; Dismissal for lack of competent evidence; Jones & Laughlin Steel Corp v Warren; Taxable value (TV)

The court held that the TT did not err by dismissing petitioner’s challenge to his property assessment because he failed to produce sufficient evidence supporting his claimed M-G exemption or the property’s TCV. Petitioner challenged an increase in the 2024 TV of his residential property, arguing that renovations were exempt from consideration under MCL 211.27(2). The TT dismissed the petition after finding he did not provide adequate evidence of the renovations or the property’s value. On appeal, the court held that the TT’s findings were supported by competent, material, and substantial evidence. Although MCL 211.27(2) bars assessors from considering increases in TCV resulting from “normal repairs, replacement, and maintenance” until the property is sold, petitioner failed to provide sufficient evidence for the TT to determine “what, if any, improvements may qualify” under the statute. The court noted that he provided some testimony about upstairs bathroom and bedroom work, but he could not identify when the heating system or kitchen were updated and offered no documentary evidence beyond a bathroom permit. The court also held that dismissal was appropriate because petitioner did not meet his burden as to TCV. His testimony that he purchased the home several years earlier for “over $503,000” did not trigger the TT’s duty to make an independent valuation. Affirmed.

Property tax assessment; True cash value (TCV); MCL 211.27(1); Mathieu-Gast Home Improvement Act exemption (M-G exemption); MCL 211.27(2); Normal repairs, replacement, & maintenance; Burden of proof; MCL 205.737(3); Burden of going forward; President Inn Props, LLC v Grand Rapids; Tax Tribunal’s (TT) independent duty to determine value; Great Lakes Div of Nat’l Steel Corp v Ecorse; Dismissal for lack of competent evidence; Jones & Laughlin Steel Corp v Warren; Taxable value (TV)

The court held that the TT did not err by dismissing petitioner’s challenge to his property assessment because he failed to produce sufficient evidence supporting his claimed M-G exemption or the property’s TCV. Petitioner challenged an increase in the 2024 TV of his residential property, arguing that renovations were exempt from consideration under MCL 211.27(2). The TT dismissed the petition after finding he did not provide adequate evidence of the renovations or the property’s value. On appeal, the court held that the TT’s findings were supported by competent, material, and substantial evidence. Although MCL 211.27(2) bars assessors from considering increases in TCV resulting from “normal repairs, replacement, and maintenance” until the property is sold, petitioner failed to provide sufficient evidence for the TT to determine “what, if any, improvements may qualify” under the statute. The court noted that he provided some testimony about upstairs bathroom and bedroom work, but he could not identify when the heating system or kitchen were updated and offered no documentary evidence beyond a bathroom permit. The court also held that dismissal was appropriate because petitioner did not meet his burden as to TCV. His testimony that he purchased the home several years earlier for “over $503,000” did not trigger the TT’s duty to make an independent valuation. Affirmed.

Child protective proceedings; Jurisdiction; MCL 712A.2(b)(1); Substantial risk of harm to mental well-being; Preponderance of evidence; In re Ferranti; Parent’s mental health & effect on children; In re Kellogg; Child’s situation at time petition filed; In re MU

The court held that the trial court did not err by exercising jurisdiction over respondent-mother’s children under MCL 712A.2(b)(1). Respondent made repeated allegations that the children were being sexually abused, drugged, and used in child pornography or trafficking, but medical examinations, interviews, and CPS investigations did not substantiate those claims. After the children were returned under a custody order requiring therapy, she refused to exchange the children with their father, stopped attending therapy, and resisted an emergency pickup order while the children could see and hear parts of the incident. The trial court exercised jurisdiction after an adjudication bench trial. On appeal, the court held that a preponderance of the evidence supported finding a “substantial risk of harm to the children’s mental well-being.” The evidence showed respondent continued to act on unsubstantiated beliefs involving sexual abuse, trafficking, corruption, and a conspiracy to steal her inheritance. It also showed the children were affected by the second removal, including RSB repeatedly saying, “I’m so sorry, this is all my fault,” and JSB copying that statement. The court rejected respondent’s reliance on the lack of a specific mental-health diagnosis because the issue was not diagnosis, but whether her beliefs and actions placed the children at risk. It also rejected her claim that no physical harm was shown because physical neglect was not the basis for jurisdiction. Affirmed.