Excessive force claim under 42 USC § 1983; Graham v Connor; Qualified immunity; Estate of Hill ex rel Hill v Miracle; Whether “tasing” an individual in a mental-health crisis violated her Fourth Amendment rights; Whether an officer violated the individual’s Fourth Amendment rights by shooting her just seconds after she was tased; Palma v Johns; Whether the constitutional rights were clearly established at the time of the incident; Municipal liability under Monell v Department of Soc Servs of City of NY

The court reversed the district court’s grant of qualified immunity to defendants-police officers (Williams and Lopez) as to the tasing and shooting of an individual (Wooden) who was having a mental-health emergency. It concluded that plaintiff-Chrestman plausibly alleged that they violated Wooden’s clearly established constitutional rights. It also vacated the dismissal of the municipal liability claim. Plaintiff, next friend to Wooden, alleged excessive force claims based on Wooden being tased, shot, and severely injured. “Wooden, in the throes of a mental-health crisis, called 911 and asked for police to kill her.” When they arrived at the scene, she was holding a bat and a pickax. Within 10 minutes, Williams tased her and, as Wooden approached the officers, Lopez shot her, hitting her twice. On appeal, the court explained that, under Hill, in cases involving mental-health-emergencies, factors in determining “the ‘reasonableness of police force’” under the totality of the circumstances include whether (1) the medical emergency made the individual incapable of making a “rational decision” in ways that created the threat of immediate serious harm to the individual or to others, (2) it was reasonably necessary to use some degree of force to counter the threat, and (3) the force used was excessive under the circumstances. The court held that plaintiff plasuibly alleged that “Willaims violated Wooden's constitutional rights when he tased her.” Wooden was mentally unstable, not committing a crime, and was not under arrest or resisting arrest. Further, she posed no immediate threat, and plaintiff offered evidence that the tasing was “excessive. No other officer on the scene used force against Wooden at that time. Williams would later explain that he tased Wooden after he ‘gave up.’” The court noted that “absent an officer’s reasonable fear for his safety, simple disobedience by an individual not under arrest does not justify tasing.” It rejected Williams’s argument that video cam footage blatantly contradicted plaintiff’s allegations. As for Lopez’s shooting Wooden seconds later, applying the Palma factors, the court held that plaintiff plausibly alleged that Lopez violated Wooden’s Fourth Amendment rights when he shot her. The court then held that, based on the complaint’s allegations that “Wooden was: (1) not under arrest, (2) not resisting arrest, (3) suffering a mental-health crisis, and (4) nonviolent[,]” the constitutional right not to be tased or shot was clearly established at the time. And because it held that plaintiff “plausibly alleged that Williams and Lopez violated Wooden’s clearly established rights,” the court also revived the municipal liability claim. Remanded.

Excessive force claim under 42 USC § 1983; Graham v Connor; Qualified immunity; Estate of Hill ex rel Hill v Miracle; Whether “tasing” an individual in a mental-health crisis violated her Fourth Amendment rights; Whether an officer violated the individual’s Fourth Amendment rights by shooting her just seconds after she was tased; Palma v Johns; Whether the constitutional rights were clearly established at the time of the incident; Municipal liability under Monell v Department of Soc Servs of City of NY

The court reversed the district court’s grant of qualified immunity to defendants-police officers (Williams and Lopez) as to the tasing and shooting of an individual (Wooden) who was having a mental-health emergency. It concluded that plaintiff-Chrestman plausibly alleged that they violated Wooden’s clearly established constitutional rights. It also vacated the dismissal of the municipal liability claim. Plaintiff, next friend to Wooden, alleged excessive force claims based on Wooden being tased, shot, and severely injured. “Wooden, in the throes of a mental-health crisis, called 911 and asked for police to kill her.” When they arrived at the scene, she was holding a bat and a pickax. Within 10 minutes, Williams tased her and, as Wooden approached the officers, Lopez shot her, hitting her twice. On appeal, the court explained that, under Hill, in cases involving mental-health-emergencies, factors in determining “the ‘reasonableness of police force’” under the totality of the circumstances include whether (1) the medical emergency made the individual incapable of making a “rational decision” in ways that created the threat of immediate serious harm to the individual or to others, (2) it was reasonably necessary to use some degree of force to counter the threat, and (3) the force used was excessive under the circumstances. The court held that plaintiff plasuibly alleged that “Willaims violated Wooden's constitutional rights when he tased her.” Wooden was mentally unstable, not committing a crime, and was not under arrest or resisting arrest. Further, she posed no immediate threat, and plaintiff offered evidence that the tasing was “excessive. No other officer on the scene used force against Wooden at that time. Williams would later explain that he tased Wooden after he ‘gave up.’” The court noted that “absent an officer’s reasonable fear for his safety, simple disobedience by an individual not under arrest does not justify tasing.” It rejected Williams’s argument that video cam footage blatantly contradicted plaintiff’s allegations. As for Lopez’s shooting Wooden seconds later, applying the Palma factors, the court held that plaintiff plausibly alleged that Lopez violated Wooden’s Fourth Amendment rights when he shot her. The court then held that, based on the complaint’s allegations that “Wooden was: (1) not under arrest, (2) not resisting arrest, (3) suffering a mental-health crisis, and (4) nonviolent[,]” the constitutional right not to be tased or shot was clearly established at the time. And because it held that plaintiff “plausibly alleged that Williams and Lopez violated Wooden’s clearly established rights,” the court also revived the municipal liability claim. Remanded.

First Amendment; Access to judicial advisory commission meetings; The “experience & logic” test, Press-Enter Co v Superior Court of CA for Riverside Cnty; Whether the test could be extended to provide access to “advisory” as well as “adjudicatory” proceedings; Phillips v DeWine; Detroit Free Press v Ashcroft

The court held that plaintiff-journalist’s (McCaleb) First Amendment challenge to the Tennessee Judicial Advisory Commission’s practice of closing its meetings to the public could not be resolved under Press-Enterprise’s “experience-and-logic test” where that standard can only be applied to “adjudicatory” not “advisory” proceedings. Arguing that the Commission’s practice violated the First Amendment, McCaleb sued defendant-Long, the Director of the Tennessee Administrative Office of the Courts. The district court initially granted McCaleb an injunction but later dissolved it, granting Long summary judgment. McCaleb contended that he should prevail under the experience-and-logic test. The court explained that “the First Amendment does not confer a general right to access information in the government’s possession[,]” and the burden is on the person seeking the information to show that constitutional rights have been violated. It noted that the experience-and-logic test was first applied only as to access to criminal proceedings and was then extended to provide access to executive agencies’ adjudicatory proceedings. However, the court declined to extend it to advisory proceedings, such as the meetings at issue here. It noted that both before and after its decision in Detroit Free Press, it had “not applied the experience-and-logic test to situations that, in McCaleb’s view, would have required it.” For example, in Phillips, it “interpreted Detroit Free Press to extend the application of the experience-and-logic test only so far as adjudicative administrative proceedings. . . .It explicitly rejected the view that this Circuit has endorsed the views of other circuits who have applied the test generally. Phillips made clear that our circuit has applied the experience-and-logic test only in the context of adjudicative proceedings.” Thus, because the Commission’s meetings are advisory, and because McCaleb did not raise any other theory entitling him to access, the court affirmed the district court’s judgment.

First Amendment; Access to judicial advisory commission meetings; The “experience & logic” test, Press-Enter Co v Superior Court of CA for Riverside Cnty; Whether the test could be extended to provide access to “advisory” as well as “adjudicatory” proceedings; Phillips v DeWine; Detroit Free Press v Ashcroft

The court held that plaintiff-journalist’s (McCaleb) First Amendment challenge to the Tennessee Judicial Advisory Commission’s practice of closing its meetings to the public could not be resolved under Press-Enterprise’s “experience-and-logic test” where that standard can only be applied to “adjudicatory” not “advisory” proceedings. Arguing that the Commission’s practice violated the First Amendment, McCaleb sued defendant-Long, the Director of the Tennessee Administrative Office of the Courts. The district court initially granted McCaleb an injunction but later dissolved it, granting Long summary judgment. McCaleb contended that he should prevail under the experience-and-logic test. The court explained that “the First Amendment does not confer a general right to access information in the government’s possession[,]” and the burden is on the person seeking the information to show that constitutional rights have been violated. It noted that the experience-and-logic test was first applied only as to access to criminal proceedings and was then extended to provide access to executive agencies’ adjudicatory proceedings. However, the court declined to extend it to advisory proceedings, such as the meetings at issue here. It noted that both before and after its decision in Detroit Free Press, it had “not applied the experience-and-logic test to situations that, in McCaleb’s view, would have required it.” For example, in Phillips, it “interpreted Detroit Free Press to extend the application of the experience-and-logic test only so far as adjudicative administrative proceedings. . . .It explicitly rejected the view that this Circuit has endorsed the views of other circuits who have applied the test generally. Phillips made clear that our circuit has applied the experience-and-logic test only in the context of adjudicative proceedings.” Thus, because the Commission’s meetings are advisory, and because McCaleb did not raise any other theory entitling him to access, the court affirmed the district court’s judgment.

Sufficiency of the evidence; Aggravated stalking; MCL 750.411i; “Stalking”; MCL 750.411i(1)(e); “Harassment”; MCL 750.411i(1)(d); “Emotional distress”; MCL 750.411i(1)(c); Martin v Smith (Unpub); “Reasonable person”; MCL 750.411i; People v Spaulding; Using a computer to commit a crime; MCL 752.797(3)(d)

Concluding that there was insufficient evidence to support defendant’s convictions of aggravated stalking and using a computer to commit a crime, the court reversed his convictions and remanded for entry of judgments of acquittal as to both charges. The court found that “there must be sufficient evidence of conduct by defendant that would cause a reasonable person to experience mental suffering or distress of a kind or at a level that may, but does not necessarily, require medical or other professional treatment or counseling.” M “is a probation agent who was supervising” defendant. The court was required to “determine whether there was sufficient evidence of conduct by defendant that would cause a reasonable person in [M’s] position . . . to suffer ‘emotional distress’ as that term is defined in MCL 750.411i(1)(c).” Turning to the facts of the case, the court found there was not. It agreed “with the trial court that none of defendant’s messages were threatening.” And although “defendant’s text messages were all sent to [M’s] work-issued cell phone, he did not physically approach or follow her, and he did not contact her on a personal device or over social media.” Nor did the court “think that the sheer number, frequency, and length of defendant’s messages would cause a reasonable person in [M’s] position ‘significant mental suffering or distress’ under MCL 750.411i(1)(c).” The prosecution argued that M “should not be expected to have ‘thicker skin or greater patience than a reasonable individual simply by virtue of her occupation.’” The court found that M could not “be held to a higher standard than that of a reasonable individual[,]” however it noted that “the standard under MCL 750.411i(1)(c) is whether defendant’s conduct would cause a reasonable person in [M’s] position to experience ‘significant mental suffering or distress that may, but not necessarily, require medical or other professional treatment or counseling.’ That standard was not met here, so defendant’s conviction for aggravated stalking must be reversed.” The court further found that M’s “occupation and relationship to defendant is also a relevant consideration in the ‘reasonable person’ analysis.” Finally, it found there was insufficient evidence that his “conduct met the definition of stalking under Michigan law.” Thus, the court’s reversal of his “conviction for aggravated stalking mandates reversal of his conviction for using a computer to commit a crime.” The prosecution argued “that even if the evidence were insufficient to convict defendant of aggravated stalking, defendant’s conviction for using a computer to commit a crime should be affirmed.” However, it failed “to explain how the evidence here could sustain the second conviction if it could not sustain the first.” Moreover, it failed “to identify any other ‘crime’ defendant used a computer to commit.”

Whether respondent-juvenile’s plea was understandingly made; People v Brinkey; Failure to advise respondent of the potential disposition of placement in a residential facility in accordance with MCR 3.941(C)(1)(b); Plain error

The court held that the trial court plainly erred in failing to comply with MCR 3.941(C)(1)(b) and this plain error affected respondent-juvenile’s “substantial rights and the integrity and fairness of the proceedings.” She appealed the trial court’s order adopting Juvenile Probation’s disposition recommendation and ordering Probation to seek a residential facility placement for her after she entered a plea of admission to third-degree retail fraud. When the trial “court accepted respondent’s plea, it did not list residential placement as a possible disposition of the plea. Rather, [it] advised respondent that placement in a facility could be a consequence of failing to abide by probation requirements.” The court concluded her “plea was not understandingly made because the trial court failed to fully inform her of the direct consequences of her plea, namely the possible dispositions, including placement in a residential facility which [it] ultimately imposed, in violation of her due process rights.” The court noted that had she “known of that possible disposition, she may not have pleaded to third-degree retail fraud.” It vacated the adjudication and disposition orders, and remanded.

Jail credit; MCL 769.11b; People v Patton; People v Allen; People v Seiders; Due process; North Carolina v Pearce; Fairness; People v Adkins

Holding that defendant received the amount of jail credit to which he was entitled, the court affirmed. He was charged in two separate cases (Case 1 and Case 2). This appeal concerned Case 2. In Case 1, he pled no contest as a second habitual offender to CSC IV. In Case 2, he pled guilty to delivery of marijuana to a minor, “as a second habitual offender. In exchange for his pleas, defendant received a Cobbs evaluation providing for a minimum-term cap of 18 months’ imprisonment and was sentenced accordingly. [He] received 55 days of jail credit in Case 1 and” 4 days’ credit in Case 2. He asserted “that he should have received 57 days of jail credit in Case 2.” The court disagreed. As to his argument under MCL 769.11b, he was held in jail from 2/8/24 to sentencing on 4/1/24 “only because his bond was revoked in Case 1. His bond in Case 2 remained outstanding because, as the trial court explained during sentencing, ‘[t]here has to be a request made of the Court to revoke bond,’ which did not occur in Case 2. Thus, when defendant was held in jail during this 53-day time period, he only was held because of being ‘unable to furnish bond’ in Case 1.” As a result, the trial court correctly found that he was only “entitled to the additional 53 days of jail credit in Case 1, not Case 2, pursuant to MCL 769.11b.” While he noted “that bond could have been revoked in Case 2 when it was revoked in Case 1” or shortly after, “that observation does not compel a different result.” Because he “only had his bond revoked in Case 1, it follows that he was incarcerated during the time period in question only because of Case 1. Case 2 is, essentially, an ‘unrelated reason’ why [he] was incarcerated.” As to his due process argument, as he “actually received 53 days of jail credit in Case 1, he was not wholesale deprived of jail credit notwithstanding his actual incarceration during the time period in question.” Lastly, relying on footnote 10 in Adkins, he asserted “the trial court should have granted him an additional 53 days of jail credit in Case 2 ‘as a matter of fairness.’” However, the court noted that “Adkins does not permit a trial court to actually award additional jail credit contrary to the terms of MCL 769.11b.” It instead indicated “a trial court may sentence a defendant to a lesser term to compensate for any perceived unfairness or inequity with the lack of jail credit in that case.” But it did “not suggest that such a result is required.”

Whether respondent-juvenile’s plea was understandingly made; People v Brinkey; Failure to advise respondent of the potential disposition of placement in a residential facility in accordance with MCR 3.941(C)(1)(b); Plain error

The court held that the trial court plainly erred in failing to comply with MCR 3.941(C)(1)(b) and this plain error affected respondent-juvenile’s “substantial rights and the integrity and fairness of the proceedings.” She appealed the trial court’s order adopting Juvenile Probation’s disposition recommendation and ordering Probation to seek a residential facility placement for her after she entered a plea of admission to third-degree retail fraud. When the trial “court accepted respondent’s plea, it did not list residential placement as a possible disposition of the plea. Rather, [it] advised respondent that placement in a facility could be a consequence of failing to abide by probation requirements.” The court concluded her “plea was not understandingly made because the trial court failed to fully inform her of the direct consequences of her plea, namely the possible dispositions, including placement in a residential facility which [it] ultimately imposed, in violation of her due process rights.” The court noted that had she “known of that possible disposition, she may not have pleaded to third-degree retail fraud.” It vacated the adjudication and disposition orders, and remanded.

Removal & temporary custody; MCL 712A.13a(9); MCR 3.965; In re Benavides; Petition authorization & probable cause; MCL 712A.2(b); MCR 3.965(B)(12); In re Ferranti; Standard of proof when asserting jurisdiction; In re Williams; Reasonable efforts to prevent removal; MCL 712A.13a(9)(d), MCR 3.965(C)(4); In re Sanborn; Risk to siblings based on abuse of one child; In re Christie; Abandonment of appellate issue; In re Rippy

The court affirmed the orders removing the children from respondent-mother’s care and limiting her to supervised parenting time because the record supported the trial court’s contrary-to-welfare and reasonable-efforts findings under MCL 712A.13a(9), and the challenge to supervised parenting time was abandoned. Respondent is the mother of three children with different fathers. The DHHS petitioned after reports that she physically abused KILW, hitting her, pushing her into a washer/dryer, choking her, pulling her shirt over her head, biting her finger and elbow, and breaking her finger, while holding SDM. Medical providers diagnosed nonaccidental trauma. The court placed KILW with her nonrespondent father and, after their grandmother’s death, placed SDM and DKMM in foster care. It later ordered respondent to have supervised parenting time. The trial court granted removal, expressly finding it contrary to the children’s welfare to remain with respondent and that reasonable efforts were made. On appeal, the court rejected respondent’s argument that the statutory criteria for removal were not met, noting that “the trial court explicitly stated that it was contrary to the children’s welfare to remain in respondent’s care and that reasonable efforts had been made to prevent removal.” Addressing the risk to SDM and DKMM, the court emphasized that “treatment of one child is probative of how a respondent may treat their other children,” and the trial court did not err by finding all three children at risk given the nonaccidental trauma to KILW. The court also rejected respondent’s claim that reasonable efforts were lacking, noting no argument was made “as to why these efforts were inadequate and what should have been done instead.” Finally, the court declined to disturb the supervised-visitation order because respondent made “no argument as to why she should be allowed unsupervised parenting time,” and thus, abandoned it.