Opinion
Case No. 1:03-CV-114
March 29, 2004
PARTIAL JUDGMENT AND ORDER OF REMAND
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendants City of Frankfort, Timothy Cavric and Keith Redder's Motion for Summary Judgment (Dkt. No. 41) is GRANTED as to all Plaintiffs GCH, Inc. and Gerald Hendricks' federal law claims, which claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs' remaining state law claims are REMANDED to the Circuit Court for Benzie County, Michigan in accordance with 28 U.S.C. § 1367(c)(3).
OPINION
This matter is before the Court to consider Defendants City of Frankfort, Officer Timothy Cavric, and Police Chief Keith Redder's Motion for Summary Judgment. The Motion has been fully briefed by counsel for Defendants and Plaintiffs GCH, Inc. and Gerald Hendricks. Upon review of the briefing, the Court determines that the Motion raises issues which can be readily resolved without oral argument.FACTUAL BACKGROUND
Since this matter is before the Court on a summary judgment motion, the Court has interpreted the factual record in a light most favorable to the non-movants, Plaintiffs. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiffs' First Amended Complaint was filed against Defendants before the Benzie County Circuit Court sometime after January 13, 2003. The suit was then removed to this Court by Notice of Removal filed on February 21, 2003 premised on federal jurisdiction over claims asserted under 42 U.S.C. § 1983. Plaintiff's First Amended Complaint, as explained in the briefing, asserts two federal law claims-selective enforcement in violation of the Equal Protection Clause and retaliation for public speech in violation of the First Amendment. It also asserts two state law claims-intentional infliction of emotional distress and grossly negligent training as to Defendant City of Frankfort.
Gerald Hendricks is the owner and president of GCH, Inc., which operates the Villa Marine Bar and Grill ("the Villa"), located at 228 Main Street, Frankfort, Michigan. (Hendricks Aff. at ¶ 1.) For the last several years, Hendricks has been a member of the Frankfort Planning Commission and has expressed negative opinions about police tactics used by the Frankfort Police Department and especially Officer Timothy Cavric. ( Id. at ¶ 2-4.) These opinions have been expressed on public television and in public newspapers. ( Id. at f 3.) On June 13, 2002, at the behest of Hendricks and other concerned citizens of Frankfort, a special meeting of the City Council was called for the purpose of airing citizen complaints regarding Cavric. (Compl. at ¶ 15; Henricks Dep. at 34.) As part of Hendricks' campaign regarding Cavric's conduct, some four to six or more City Council meetings were held during the Spring or Summer of 2002 in which Cavric's conduct was discussed. ( Id.) Criticisms of Cavric included that he would "harass" bar and restaurant patrons by stopping them for either minor violations or for no reason. ( Id. at 35-36.) According to Hendricks, following these criticisms, Cavric began to follow him around town during errands and "taunted" him. (Hendricks Aff. at ¶ 5.)
As part of Hendricks' campaign, another merchant-Dennis Heniser (of Dews Sport Shop, Frankfort, Michigan) also expressed criticisms of Cavric. (Grant Sowa Dep. at 2; Pls.' Ex. H.) These criticisms apparently prompted Cavric's attorney to write to Heniser to threaten civil suit. (Heniser Dep. at 10; Pls.' Ex. H.) According to Heniser, he was told at the time that it was "pay back time" for him and Hendricks. (Heniser Dep. at 27.) Sergeant Sowa of the Frankfurt Police Department and Defendant Chief Redder, around this time, received complaints from Hendricks and other citizens about Cavric "sitting on the Villa" for enforcement purposes. ( Id. at 17-18.) At least one patron, Alan Popp, expressed that he would not go to the Villa if Cavric were on duty. (Alan Popp Dep. at 38-39.) Popp has testified that Cavric was in "constant" (every 10-15 minutes) surveillance of the Villa during the Spring and Summer of 2002. ( Id. at 31-32.) Bar staff has indicated that Cavric stopped into the Villa every night around 10 or 10:30 p.m. and was regularly parked outside the Villa. (Elaine Schwander Dep. at 8-9; Hogarth Dep. at 4-14.) Bar staff witnessed Cavric pull over cars after they had left the Villa on five or six occasions. (Schwander Dep. at 17.) Other residents of Frankfort also noticed that Cavric was nightly seen by them on patrol, parked outside of the Villa. (Burt Williams Dep. at 16, 20; Ken Mitchell Dep. at 12-14.) On one occasion, Cavric had an on-duty conversation with a card-playing friend, Michael Powers, in which Cavric vowed to "shut the f-cking Villa down." (Powers Dep. at 12-14.) Cavric also told Powers that "Jerry [Hendricks] was a f-cking piece of shit." ( Id.)
At the time, Sowa said that "sitting on" a bar was contrary to city policy. (Sowa Dep. at 25.) Sowa defined "sitting on" as parking a vehicle near the establishment or watching the establishment and its patrons for the purpose of liquor enforcement. ( Id.) Sowa admitted to Hendricks that Cavric "ha[d] it in for [you]." (Hendricks Aff. at ¶ 14.) Cavric was "informally counseled" at the time not to "sit on" any of the bars in the City of Frankfort or Village of Elberta ( i.e., areas within his jurisdiction). ( Id.) According to Cavric, though, he had never received training from the Frankfort Police Department concerning enforcement of liquor violations, (Cavric Dep. at 25-26.) Cavric admitted that, prior to the suit, he had never heard the term "selective enforcement." ( Id. at 31.) He further said that he sometimes followed cars leaving the Villa for extended distances, ( id. at 55-57), and followed Hendricks around town while on patrol ( id. at 59). Cavric admitted that he did not decide to enforce the liquor laws in Frankfort by sending complaints to the Commission until March 2002. ( Id. at 82-83.) He further admitted telling Villa patrons, while on duty, "see you guys on the road." ( Id. at 98.)
Defendant Chief Redder agreed that he received complaints concerning Cavric during the relevant time period and had told him to back off. (Redder Dep. at 29.) Redder admitted that he was "monitoring" Cavric's treatment of Hendricks, but took no official action. ( Id. at 61.) Redder felt that it was appropriate for Cavric to patrol in front of the Villa. ( Id. at 63.) Redder said that when he heard complaints regarding Cavric, he simply told Cavric to "do his job." ( Id. at 65.) He admitted that there was no officer training as to policing liquor violations, and that officers simply filled out a violation form and attached a police report to it. ( Id. at 25.)
According to the records of the Michigan Liquor Control Commission ("Commission"), the Villa was licensed on December 30, 1996 and had no adjudicated liquor violations prior to August 22, 2002. (Defs.' Ex. B-1, Negotiated Settlement, at 2.) The August 22, 2002 finding related to the March 25, 2002 serving of an intoxicated person-William Patrick Hughes. ( Id.) The matter came to the attention of the Commission because of the Police Report and Violation Report of Cavric. (Defs.' Ex. B-1.)
On May 11, 2002, Cavric pulled over a driver, Michael Harvey Schaefer, for drunk driving. (Defs.' Ex. B-2, Police Report.) Schaefer was asked about and admitted to drinking at the Villa. ( Id.) The same day Cavric prepared a Violation Report which, with his Police Report, was then filed with the Commission. ( Id., Violation Report.) Based on the Violation Report, a Negotiated Settlement was approved on October 28, 2002, finding that the Villa had served Shaefer while intoxicated in violation of Mich. Comp. Laws § 436.1802(2). ( Id., Negotiated Settlement.)
On July 26, 2002, at 4:05 a.m., Cavric entered the Villa to investigate liquor violations. (Defs.' Ex. B-3, Police Report.) The Villa was locked, but Cavric gained entrance by knocking at the door. ( Id.) Cavric saw three persons drinking and told them that he wanted to talk to them about drinking after hours. ( Id.) He was told by one Seth Lerg that he should leave. ( Id.) He refused to leave and questioned a female employee, Kendra Kaminsky, who admitted they had been drinking alcohol. ( Id.) A Violation Report and Police Report were prepared by Cavric that day and were received by the Commission on August 29, 2002. ( Id., Violation Report.) The Commission then found, on February 24, 2003, that the licensee violated Commission rules. ( Id., Findings of Fact.)
On August 21, 2002, Cavric pulled over a driver, William Schnarr, for drunk driving. (Defs.' Ex. C.) Cavric asked Schnarr where he had been drinking and was told that he had been drinking at the Villa. ( Id) Cavric then forwarded a Violation Report regarding the incident to the Commission. (Defs.' Br. at 5.) This resulted in a Negotiated Settlement determining a violation-presumably serving an intoxicated person in violation of Mich. Comp. Laws § 436.1802(2).
During the period in which Cavric submitted the four Violation Reports to the Commission, the Commission received no complaints concerning other bars in Cavric's jurisdiction from the Frankfort Department. (Hendricks Aff. at ¶¶ 11-12; Sowa Dep at 25; Pls.' Ex. G.) This is so despite the fact that, at the time, Frankfort officers were issuing drunk driving citations to drivers who had consumed alcohol at other bars in the jurisdiction. ( Id.)
According to records submitted by Plaintiff, in 2002, one complaint was filed against another licensee-for an insufficient check-though this complaint was filed by the Commission itself. (Pls.' Ex. G.) Defendants have argued that they sent two other complaints to the Commission regarding over-serving at the Cabbage Shed in December 2002, but they have not cited record evidence to support this claim. ( See Defs.' Br. at 7.)
Hendricks claims to have personal knowledge of these matters by reviewing pertinent Commission and police records.
There are four bars in the area serving liquor-the Villa, the Frankfort Eagles, the Cabbage Shed, and Dinghy's Bar. (Hendricks Aff. at ¶ 21.) Of these, the largest facility is the Cabbage Shed. ( Id. at ¶ 22.) Plaintiffs put the seating capacity of the bars at 150 for the Cabbage Shed, 125 for the Eagles, 110 for the Villa, and an unspecified number for Dinghy's Bar. (Pls.' Resp. at 9 n. 2.) Dinghy's Bar "serves similar clientele as the Villa, and is frequently open until 2:00 a.m." (Hendricks Aff. at ¶ 24.) Steve Christian, the owner of Dinghy' s Bar, says that Hendricks was one of a small number of business owners that voiced public dissatisfaction of Cavric. (Christian Dep. at 31.) Christian regularly observed the town of Frankfort and regularly observed that Cavric was parked in front of the Villa, but not other bars. ( Id. at 17.)
According to Hendricks, the selective enforcement by Cavric caused the Villa a significant loss of business. Bars in that area experienced consistent growth in revenue (15-20 percent) from 1999-2002. (Christian Dep. at 9.) In 2002, Cavric's actions caused reduced patronage at the Villa. (Henricks Dep. at 17-19.) According to Hendricks, these actions caused a decrease in sales by 25 percent for 2002. ( Id. at 19.) Further, since Cavric left the police department in 2003, Hendricks' sales have resumed to pre-enforcement levels and his business has had steady growth. ( Id. at 25.)
STANDARD FOR SUMMARY JUDGMENT
Defendants' Motion is brought pursuant to Federal Rule of Civil Procedure 56. Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
____Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp., 477 U.S. at 323 (quoting Anderson, 477 U.S. at 255). The factual record presented must be interpreted in a light most favorable to the non-movant. Matsushita Elec. Indus. Co., 475 U.S. at 587.
Rule 56 limits the materials the Court may consider in deciding a motion to: `"pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. . . .`" Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995) (quoting Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:
[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
Fed.R.Civ.P. 56(e). The Sixth Circuit has held "that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 1 F.3d 697, 699 (6th Cir. 1993). Thus, in resolving a Rule 56 motion, the Court should not consider unsworn or uncertified documents, id., unsworn statements, Dole v. Elliot Travel Tours, Inc., 942 F.2d 962, 968-69 (6th Cir. 1991), inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997), or hearsay evidence, Hartsel v. keys, 87 F.3d 795, 799 (6th Cir. 1996); Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994).
In this case, the Court notes that papers filed do not conform to the requirements of Rule 56(e)-documents are attached which are neither sworn nor certified and some references are made to inadmissible hearsay. Worst of all, Plaintiffs' counsel has failed to attach copies of the deposition pages referenced in their briefing-instead referencing an attached deposition summary of the various depositions. This practice is blatantly at odds with the requirements of Rule 56(e) and is likely to interject mistaken references into the record. Nevertheless, the Court will consider the briefing submitted because the federal issues deserve discussion and resolution. While doing so, the Court regards Plaintiffs' failure to comply with Rule 56(e) as a separate and compelling reason warranting summary judgment as to Plaintiffs' federal claims in Defendants' favor. LEGAL ANALYSIS
It is also true that Defendants have not perfectly complied with Rule 56(e); though, Defendants' non-compliance was, unlike Plaintiffs' non-compliance, more technical in nature and did not affect the bulk of their supporting evidence.
Plaintiffs' two federal claims concern, respectively, a claim of selective enforcement in violation of the Equal Protection Clause and a claim of retaliation in violation of the First Amendment. Because the resolution of these claims also bears on the issue of qualified immunity, the Court will first discuss that concept.
1. Qualified Immunity
The common law of the United States affords public officers the affirmative defense of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 806, 816-17 (1982). The Supreme Court has described this protection as one against both liability and prosecution of a lawsuit as to any suit wherein the right on which liability is premised has not been clearly established by prior precedent. Id.; Siegert v. Gilley, 500 U.S. 226, 232-33 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The defense of qualified immunity applies "[i]f the law did not put the officer on notice that his conduct would be clearly unlawful." Saucier v. Katz, 533 U.S. 194, 202 (2001) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). Qualified immunity is unavailable in those cases in which the defendants' entitlement to it depends on which of the competing versions of events is accepted as true by the trier of fact. See Adams, 31 F.3d at 387.
In determining whether the defense applies, the Court must review the state of the law as it existed at the time of the alleged constitutional violations and determine whether the rights allegedly violated were clearly established by controlling legal authorities, especially including decisions of the United States Supreme Court and of the controlling court of appeals. See Harlow, 457 U.S. at 818.
2. Selective Enforcement
Violations of the Equal Protection Clause are most common in cases in which the government fails to treat equally protected groups, including especially racial minorities. In 2000, the United States Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) added to the Equal Protection jurisprudence to explicitly recognize selective enforcement claims involving "a class of one"-not premised on suspect classifications, but based on conduct which was wholly irrational and arbitrary. In order to prove such a claim, a plaintiff must prove: (1)there were others similarly situated; (2) plaintiff was intentionally treated differently; (3) there was no rational basis for the different treatment. Id,
In this context, the Supreme Court has not precisely defined the notion of "similarly situated." Defendants in their briefing define the concept of "similarly situated" based on the Sixth Circuit's reverse-discrimination equal protection suits as requiring that all relevant aspects of the comparables be nearly identical. See, e.g., Pierce v. Common Life Ins. Co., 40 F.3d 796, 802 (1994); Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Plaintiffs, however, state that, "[u]nfortunately, there is no authority to look to as the courts have not articulated a clear standard for litigations to follow." (Pls.' Resp., at 8.) Notwithstanding this conclusion, Plaintiffs then argue that Defendants' concept of "similarly situated" is "ludicrous" because such a definition (especially as applied to characteristics of retail businesses, including seating capacity, hours of operations, locations and patronage) unnecessarily narrows the protections against arbitrary government action intended by the Olech decision.
One especially troubling aspect of this legal dispute is the extent to which the evidence of violations should be recognized as a distinguishing factor for the purposes of enforcement. On the one hand, law enforcement often focus resources on those with a history of violation. On the other hand, the overuse of this as a basis for different treatment could result in a simple self-fulfilling prophecy in which some bars are repeatedly punished as non-compliant only because police have focused enforcement on them.
This discussion, while not resolving a definition of "similarly situated," demonstrates why the doctrine of qualified immunity has a ready application to this suit. In 2002, it was not apparent to individual officers whether bars of different sizes, hours or violation histories were "similarly situated." It was also not apparent to them that the different treatment of those bars was "irrational" and a violation of the Equal Protection Clause.
Indeed, the only case cited by Plaintiffs to dispel a qualified immunity argument is the Eighth Circuit case of McGee v. Hester, 724 F.2d 89 (8th Cir. 1983). The McGee case is interesting for several reasons. It involved conduct by law enforcement which was at once very similar to but different from the instant case. In McGee, the defendants were officers of the Tennessee Alcoholic Beverage Commission, who ventured into the State of Arkansas to take enforcement action against an Arkansas store that was advertising its liquor for sale to Tennessee residents (with the effect of reducing Tennessee's collection of state liquor taxes). The tactics by the officers included parking outside the store, taking photographs of customers, following customers, and entering the store. In McGee, the lead defendant also made statements to the effect he would "put him [plaintiff] out of business." Id. at 91. The liquor enforcement officers' tactics had the effect of stifling plaintiff's business and plaintiff obtained a verdict for $1,500 of actual damages and $50,000 punitive damages against defendants on the theory that they had deprived him of property without due process of law. Id. at90;McGeev. Hester (after remand), 815 F.2d 1193, 1194-96 (8th Cir. 1987).
The damage verdict was actually larger, but was reduced to the $1,500 figure by remittitur of the trial court.
While this case is similar to McGee in terms of the use of aggressive police enforcement, the following of customers, and the stifling of patronage, there are also important differences. Plaintiffs here have not sued on the theory of deprivation of property without due process of law used in McGee. Another significant difference is that Defendants in this case were acting within their usual in-state jurisdiction as to which they have a much greater duty regarding liquor enforcement. Yet another significant difference is that Defendants here only took enforcement action in cases of clear liquor violations which were later either uncontested before the Commission or were proven to the satisfaction of the Commission. The role of the Commission as an independent administrative body which assessed the forwarded violations also tempers the insinuation that Defendants' enforcement was somehow unjustified.
Under Michigan law, violations of the Liquor Control Code of 1998, Mich. Comp. Laws § 436.1103 et seq., including liquor regulations, are considered either misdemeanors or felonies depending on the kind of violation. See Mich. Comp. Laws § 436.1909.
Noteworthy in this discussion is the Eighth Circuit's decision in Gunderson v. Schlueter, 904 F.2d 407, 410 (8th Cir. 1990). In Gunderson, an arrestee claimed that he was arrested without probable cause and because of the officer's personal vendetta against him. Notwithstanding, the Eighth Circuit held that he had no procedural due process claim regarding his arrest where there was significant probable cause as determined by a neutral judge. In doing so, the Eighth Circuit distinguished McGee on the ground that the harassment in McGee was unconnected with a valid probable cause finding. Gunderson, 904 F.2d at 410 n. 5. In this case, as in Gunderson, enforcement efforts, even if maliciously intended, were done in connection with clear violations of law. Thus, while malicious intent cannot be condoned, neither can law enforcement be deprived either of qualified immunity or their mandatory state duties to enforce the liquor laws and regulations within their jurisdictions.
Under Michigan law, a " law enforcement officer of . . . a . . . city . . . is authorized, and it is the duty of each of them, to enforce the provisions of [the Liquor Control Code of 1998] and the rules promulgated by the commission within his or her respective jurisdiction. . . ." Mich. Comp. Laws § 4 36.1201(4).
To summarize, the individual Defendants are entitled to qualified immunity regarding
Plaintiffs' Equal Protection/selective enforcement claim for the following reasons: (1) no case law existed at the time applying liability on the theory of selective enforcement as to liquor enforcement; (2) no case law existed at the time applying liability as to enforcement efforts which were legally justified; (3) no case law existed at the time applying liability when enforcement was done by reporting violations to an independent state agency; (4) no case law existed at the time applying liability as to in-state liquor enforcement; and (5) no Sixth Circuit case law existed at the time discussing the above issues. Therefore, summary judgment must be entered in favor of the individual Defendants.
Plaintiffs' selective enforcement claims against the City of Frankfort also stumble-but for a different reason. The City of Frankfort is not protected by qualified immunity. Owen v. City of Independence, 445 U.S. 622, 638 (1980); Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992). Notwithstanding, neither is a city subject to respondent superior liability under section 1983. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); Meyers v. City of Cincinnati, 14 F.3d 1115, 1116 (6th Cir. 1994). A municipality is only responsible for those constitutional torts which arise from an official policy of the city. Id. In this case, the record absolutely fails to establish that the City of Frankfort had a policy-de facto or otherwise-permitting retaliation for First Amendment speech. Plaintiffs' only policy arguments worthy of discussion (which was actually made in connection with the state law counts) is that the City of Frankfort had a policy of inadequate training.
The rubric of "inadequate training,"as a kind of de facto municipal policy, was born of the Supreme Court's decision in City of Canton v. Harris, 489 U.S. 378 (1989). The Supreme Court stated its holding as follows:
while claims such as respondent's-alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered — are cognizable under § 1983, they can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.Id. at 392. In so ruling, the Court gave one example of deliberate indifference:
For example, city policymakers know to a moral certainty that their police will be required to arrest fleeing felons. The city has armed its officers with fire-arms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force . . . can be said to be "so obvious" that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights.Id. at 390 n. 10.
In Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994), the Sixth Circuit restated the precedent concerning failure to train as follows:
In order to hold the County liable under § 1983 for failure to train adequately, the plaintiff must prove that the training program is inadequate to the task an officer must perform; that the inadequacy is the result of deliberate indifference; and that the inadequacy is "closely related to" or "actually caused" the plaintiff's injury.Id. (quoting Canton, supra at 390-91).
More recently, in the case of Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003), the Sixth Circuit said as follows:
We have read City of Canton as recognizing at least two situations in which inadequate training could be found to be the result of deliberate indifference. "One is failure to provide adequate training in light of foreseeable consequences that could result from the lack of instruction," as would be the case, for example, if a municipality failed to instruct its officers in the use of deadly force. Brown v. Shaner, 172 F.3d 927, 931 (6th Cir. 1999). "A second type of situation justifying a conclusion of deliberate indifference is where the city fails to act in response to repeated complaints of constitutional violations by its officers." Brown, 172 F.3d at 931.Id.
In the present case, neither of the two situations described in Cherrington apply such that the Court must conclude that there was no deliberately indifferent failure to train. First, this is not a case of a complete lack of training. It is a case in which Cavric's training was limited to instruction from his direct supervisor-Sowa-that he should apply the liquor laws evenhandedly. Thus, it cannot be said that the City of Frankfort was deliberately indifferent to the menace of malicious and selective prosecution, nor can it be said that the City was deliberately indifferent to complaints about the practice. Furthermore, the holding in Canton required that "the need for more or different training is so obvious . . . [as to] constitute . . . deliberate indifferen[ce] . . . ." Canton, 489 U.S. at 390. In this case, because the contours of the selective enforcement/Equal Protection right was itself unclear, it is difficult to see how the City of Frankfort could either train as to the uncertain right or be indifferent for failure to train as to the uncertain right. This conclusion is further supported by the fact that, on Plaintiffs' theory of the case, the officer misconduct was not due to a misunderstanding of right conduct, but was due to a purposeful intent to harm Plaintiffs. If such was true, then no amount of training as to equitable enforcement would correct Officer Cavric. For all of these reasons, summary judgment is warranted in favor of the City of Frankfort regarding this claim. 2. Retaliation for the Exercise of First Amendment Rights
Plaintiffs have also sued for First Amendment retaliation. Regarding such claims, the Sixth Circuit has said:
A retaliation claim essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.Thaddeus-Xv. Blatter, 175 F.3d 378, 394-95 (6th Cir. 1999) ( en banc). See also Dean v. Byerley, 354 F.3d 540, 551 (6th Cir. 2004).
Herein, it is undisputed that Plaintiffs engaged in protected conduct-public speech about a matter of public concern, the performance of a law enforcement officer's public duties. There is also ample evidence supporting the conclusion that enforcement action was motivated in substantial part by the protected conduct. The question is simply how to regard the second element of "adverse action" when the conduct is the investigation of genuine liquor offenses and the referral for independent prosecution by an independent administrative agency. Thaddeus-X does not purport to answer this question, nor does McGee, nor any other case cited by Plaintiffs. There is simply a vacuum of case law applying First Amendment retaliation claims to the context of liquor investigations and referrals by public officers whose duty it is to uphold the liquor laws-including the prevention of public drunkenness and drunk driving. In light of the absence of clear legal precedent at the time of the alleged constitutional violation, the individual Defendants are protected by qualified immunity. See Harlow, 457 U.S. at 818.
As for the City of Frankfort, while it does not benefit from qualified immunity, neither is there any basis for concluding either that it had a policy favoring the conduct or under the Canton case law that its lack of training was deliberately indifferent to the rights of Plaintiffs. The City, through Sergeant Sowa, both instructed and ordered Cavric to enforce the laws evenhandedly. The enforcement done was justified by the facts proven. The investigation efforts themselves were also justified by the extent of the violations. The record does not support a genuine issue of material fact that either retaliation was due to lack of training, that any absence of training was carried out with deliberate indifference to the constitutional rights of Plaintiffs, or that an absence of training caused Officer Cavric to violate Plaintiffs' rights against First Amendment retaliation. Therefore, summary judgment is granted as to all the federal claims.
3. State Law Claims
Of course, this leaves unresolved Plaintiffs' state law claims against Defendants. Those claims are interesting and important, but they are also quintessentially matters of state law. As to those claims, the Court has supplementary jurisdiction pursuant to 28 U.S.C. § 1367. Nevertheless, since the only federal law claims asserted will be dismissed, federal law authorizes this Court to decline to exercise jurisdiction over the state law claims and remand those claims to state court. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988); Long v. Bando Mfg. of America, Inc., 201 F.3d 754 (6th Cir. 2000). Dismissal of the state law claims is most consistent with the concept of federalism and respect for the courts of the State of Michigan, which have expertise in these matters. Williams v. VanBurenTp., 925 F. Supp. 1231, 1238 (E.D. Mich. 1996) (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966)). Therefore, the Court declines to exercise jurisdiction over the remaining claims, which shall be remanded to the Circuit Court for Benzie County.
CONCLUSION
For the reasons stated, a Partial Judgment and Order of Remand shall issue granting summary judgment as to Plaintiffs' federal law claims, but remanding their state law claims.