Fourth Amendment excessive force claim under 42 USC § 1983; Qualified immunity; Whether defendant-police officer’s use of force when taking plaintiff into custody was objectively reasonable; Graham v Connor; “Threat-to-safety” & “active-resistance” factors under Graham; Whether defendant violated a “clearly established constitutional right”

Concluding there were genuine disputes of material fact relevant to the objective reasonableness of defendant-police officer’s (Janes) use of force when taking plaintiff-Franke into custody, the court reversed the district court’s order granting Janes qualified immunity on Franke’s § 1983 Fourth Amendment excessive force claim. Janes responded to a “fight call” that involved Franke and another man. While on the scene, Franke’s ex-wife approached Janes and told him about an argument she had with Franke. Janes asked her about redness on her neck. “She stated that Franke had ‘pushed [her]’ ‘several times,’ and her husband chimed in that Franke had ‘shoved both of [them].’” After further discussion, a police sergeant directed Janes to detain Franke. Franke alleged that Janes used excessive force when taking him into custody, resulting in a wrist injury. The district court granted Janes qualified immunity on Franke’s federal claim. On appeal, the court, considering the “totality of the circumstances,” held that questions remained as to the “threat-to-safety and active-resistance factors” under Graham. As to the severity of the alleged crime factor, it agreed “with the district court that the circumstances presented during the assault” and domestic violence investigations “gave Janes reason to believe that Franke engaged in physical violence that could justify the use of some degree of force.” But as to Graham’s “immediate threat to safety” factor, it held that questions remained whether Franke stopped walking toward the police vehicle and whether he “struggled against Janes’s guidance to” the vehicle. The court noted that “Janes’s body camera footage does not blatantly undermine Franke’s testimony.” Given that it only had “conflicting testimony regarding whether Franke posed an immediate threat to Janes’s safety[,]” the court concluded that it was for a jury to make credibility determinations and weigh the competing evidence. It also agreed “with Franke that the district court erred when it found there was no genuine dispute of material fact that he resisted Janes’s attempts to detain him.” Finally, it held that it was clearly established by the time of this incident in 3/22 that “a police officer violates a person’s rights during an investigatory detention by using advanced pain compliance techniques—here a half nelson and painfully twisting a wrist with enough force to cause an injury that required surgery—on a handcuffed individual not resisting arrest.” Reversed in part, affirmed in part, and remanded.

Fourth Amendment excessive force claim under 42 USC § 1983; Qualified immunity; Whether defendant-police officer’s use of force when taking plaintiff into custody was objectively reasonable; Graham v Connor; “Threat-to-safety” & “active-resistance” factors under Graham; Whether defendant violated a “clearly established constitutional right”

Concluding there were genuine disputes of material fact relevant to the objective reasonableness of defendant-police officer’s (Janes) use of force when taking plaintiff-Franke into custody, the court reversed the district court’s order granting Janes qualified immunity on Franke’s § 1983 Fourth Amendment excessive force claim. Janes responded to a “fight call” that involved Franke and another man. While on the scene, Franke’s ex-wife approached Janes and told him about an argument she had with Franke. Janes asked her about redness on her neck. “She stated that Franke had ‘pushed [her]’ ‘several times,’ and her husband chimed in that Franke had ‘shoved both of [them].’” After further discussion, a police sergeant directed Janes to detain Franke. Franke alleged that Janes used excessive force when taking him into custody, resulting in a wrist injury. The district court granted Janes qualified immunity on Franke’s federal claim. On appeal, the court, considering the “totality of the circumstances,” held that questions remained as to the “threat-to-safety and active-resistance factors” under Graham. As to the severity of the alleged crime factor, it agreed “with the district court that the circumstances presented during the assault” and domestic violence investigations “gave Janes reason to believe that Franke engaged in physical violence that could justify the use of some degree of force.” But as to Graham’s “immediate threat to safety” factor, it held that questions remained whether Franke stopped walking toward the police vehicle and whether he “struggled against Janes’s guidance to” the vehicle. The court noted that “Janes’s body camera footage does not blatantly undermine Franke’s testimony.” Given that it only had “conflicting testimony regarding whether Franke posed an immediate threat to Janes’s safety[,]” the court concluded that it was for a jury to make credibility determinations and weigh the competing evidence. It also agreed “with Franke that the district court erred when it found there was no genuine dispute of material fact that he resisted Janes’s attempts to detain him.” Finally, it held that it was clearly established by the time of this incident in 3/22 that “a police officer violates a person’s rights during an investigatory detention by using advanced pain compliance techniques—here a half nelson and painfully twisting a wrist with enough force to cause an injury that required surgery—on a handcuffed individual not resisting arrest.” Reversed in part, affirmed in part, and remanded.

Employment contracts; Limitations provision; Rayford v American House Roseville I, LLC; Rory v Continental Ins Co; Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co; “Adhesion contract”; Reasonableness; Retroactive effect of Rayford; The “raise or waive” rule

On remand from the Supreme Court for reconsideration in light of Rayford, the court held that “Rayford is retroactive, and its holding” warranted reversal in this case. Plaintiff entered into the employment contract at issue when he was 17 years old. There was “no indication he had the power to push back against the terms imposed by defendant.” Thus, the court concluded that the contract “qualifies as an adhesion contract subject to close judicial scrutiny.” As a preliminary matter, it recognized that “under the ‘raise or waive’ rule, plaintiff’s failure to raise this issue in the trial court renders it unpreserved and” thus waived. But given the Supreme Court’s specific directive “to reconsider this case in light of Rayford, as well as our ability to overlook preservation requirements in various situations,” it addressed the issue. It was undisputed that neither the court “nor the trial court engaged in the Camelot reasonableness analysis of the shortened limitation period in this case.” As a result, it was “appropriate to remand this case to the trial court for such consideration.” The court noted “that, notwithstanding the direct applicability of Rayford to this case, defendant” argued (1) the court “already impliedly addressed the issue when addressing plaintiff’s impossibility/impracticability argument, and (2) Rayford should only be applied prospectively because retroactive application impairs the parties’ contractual rights.” Both arguments lacked merit. First, while the court “may have considered the reasonableness of plaintiff’s efforts to comply with the limitations period, the pertinent fact remains that neither [it] nor the trial court analyzed the reasonableness of the limitations period itself. As for the retroactivity of Rayford, it has long been recognized that ‘the general rule is that judicial decisions are to be given complete retroactive effect.’” The court found that in “determining whether to give a holding retroactive or prospective effect, the ‘threshold question [is] whether the decision clearly established a new principle of law.’” It found that “Rayford did not overrule prior precedent or decide an issue of first impression. It merely corrected this Court’s overextension of Rory to the employment context and reaffirmed its reasoning in Camelot. Even to the extent that the Rory Court stated its analysis applied beyond the insurance sphere, Rayford held this was mere dicta.” The court concluded that because “Rayford did not create a new rule, the threshold question for the retroactive analysis is not satisfied. Thus, the” general rule controlled. Remanded.

Age discrimination in employment claim; The Elliott-Larsen Civil Rights Act (ELCRA); One-year limitations period in the employment contract; Rayford v American House Roseville I, LLC; Camelot Excavating Co, Inc v St. Paul Fire & Marine Ins Co

On remand from the Supreme Court for reconsideration in light of Rayford, the court concluded remand was “necessary for the trial court to properly evaluate whether the shortened limitations period in” the employment contract here was enforceable under Rayford. Thus, it reversed the trial court’s grant of summary disposition to defendant-former employer in part and remanded. In a prior appeal (Robinson III), the court had affirmed the trial court. The Supreme Court vacated Part IV of that opinion, which addressed plaintiff’s age-discrimination claim, and remanded for reconsideration of the claim in light of Rayford. It also ordered that the court was permitted to consider whether the “claim was barred by collateral estoppel.” In Robinson III the court ruled “that plaintiff’s age-discrimination claim was barred by the one-year limitations period in her employment contract.” Pursuant to Rayford, “‘courts must now first determine whether a challenged employment agreement is adhesive and, if so, apply Camelot to determine whether a shortened limitations period is reasonable.’” The court noted that considering Rayford was decided after the trial court rendered its decision, it was unlikely to have “engaged in the requisite Camelot analysis regarding the enforceability of the shortened limitations period in plaintiff’s employment contract.” The court added that, even if it had, the court lacked “the record to review its findings. Thus, remand” was required. As to the collateral estoppel issue, as the court had “no record of the trial court’s decision on this issue, if it rendered one at all[,]” it declined to reach beyond its “authority as a reviewing court to address this issue when we cannot discern whether the trial court ever decided it in the first instance.” It instructed the trial court on remand to also consider “whether plaintiff’s age-discrimination claim is barred by collateral estoppel.”

Motions to suppress evidence; Statements defendant made during post-arrest questioning; Miranda v Arizona; United States v Binford; Whether “midstream” Miranda warnings were ineffective under Missouri v Seibert; Sufficiency of the Miranda warnings as to the right to counsel; Harmless error; Evidence obtained in a warrantless search of defendant’s cellphones

The court upheld the admission of defendant-Guerrero’s confession and evidence obtained from a warrantless search of his cellphones, holding that his constitutional rights where not violated. Among other things, given “the entirety of evidence against him, the admission of his post-Miranda statements was harmless.” It also held that his consent to the searches of his cellphones was voluntary. He was convicted of conspiracy, drug trafficking, and money laundering. Before trial, he moved to suppress his confession and the cellphone evidence, arguing that DEA agents violated his Fifth and Sixth Amendment rights when obtaining his confession, and that his Fourth Amendment rights were violated through warrantless cellphone searches. The district court denied his motions. On appeal, the court first held that the government met its “burden of proving by a preponderance of the evidence that” his confession was made without coercion. Arresting him early in the morning at home and not Mirandizing him immediately “were permissible law enforcement” tactics. In addition, the fact that he “‘was initially hesitant to speak with officers . . . but nevertheless decided to speak, does not indicate that his statements were coerced.’” And questioning him in English was not coercive where the agents were aware that he was bilingual. Their question about whether he had guns in his closet involved the agents’ safety and was not designed to elicit “inculpatory information.” The court rejected his argument that the Miranda warnings were “ineffective” because they were given between his arrest at home and the questioning at the DEA office. It noted that “‘midstream-Miranda’ warnings do not automatically render inadmissible a post-Miranda confession.” And it found Seibert’s applicability “questionable” in the absence of any “potentially incriminating nexus between the pre- and post-Miranda questioning.” Further, it held that, “on balance, Seibert’s factors tip in the government’s favor.” He next claimed that his Miranda warnings were deficient as to “his right to consult counsel before and during questioning, and” his right to appointed counsel. But the court found as to the latter that the “warning given here in no way obscured the contours of Guerrero’s right to have counsel appointed.” It further concluded that, considering all the evidence against him, any error was harmless. It also upheld the denial of his motion to suppress the cellphone search evidence, concluding the totality of the circumstances did “not indicate coercion” and rejecting “his attempt to tie insufficient Miranda warnings to his decision to consent to the searches.” Affirmed.

Employment contracts; Limitations provision; Rayford v American House Roseville I, LLC; Rory v Continental Ins Co; Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co; “Adhesion contract”; Reasonableness; Retroactive effect of Rayford; The “raise or waive” rule

On remand from the Supreme Court for reconsideration in light of Rayford, the court held that “Rayford is retroactive, and its holding” warranted reversal in this case. Plaintiff entered into the employment contract at issue when he was 17 years old. There was “no indication he had the power to push back against the terms imposed by defendant.” Thus, the court concluded that the contract “qualifies as an adhesion contract subject to close judicial scrutiny.” As a preliminary matter, it recognized that “under the ‘raise or waive’ rule, plaintiff’s failure to raise this issue in the trial court renders it unpreserved and” thus waived. But given the Supreme Court’s specific directive “to reconsider this case in light of Rayford, as well as our ability to overlook preservation requirements in various situations,” it addressed the issue. It was undisputed that neither the court “nor the trial court engaged in the Camelot reasonableness analysis of the shortened limitation period in this case.” As a result, it was “appropriate to remand this case to the trial court for such consideration.” The court noted “that, notwithstanding the direct applicability of Rayford to this case, defendant” argued (1) the court “already impliedly addressed the issue when addressing plaintiff’s impossibility/impracticability argument, and (2) Rayford should only be applied prospectively because retroactive application impairs the parties’ contractual rights.” Both arguments lacked merit. First, while the court “may have considered the reasonableness of plaintiff’s efforts to comply with the limitations period, the pertinent fact remains that neither [it] nor the trial court analyzed the reasonableness of the limitations period itself. As for the retroactivity of Rayford, it has long been recognized that ‘the general rule is that judicial decisions are to be given complete retroactive effect.’” The court found that in “determining whether to give a holding retroactive or prospective effect, the ‘threshold question [is] whether the decision clearly established a new principle of law.’” It found that “Rayford did not overrule prior precedent or decide an issue of first impression. It merely corrected this Court’s overextension of Rory to the employment context and reaffirmed its reasoning in Camelot. Even to the extent that the Rory Court stated its analysis applied beyond the insurance sphere, Rayford held this was mere dicta.” The court concluded that because “Rayford did not create a new rule, the threshold question for the retroactive analysis is not satisfied. Thus, the” general rule controlled. Remanded.

Age discrimination in employment claim; The Elliott-Larsen Civil Rights Act (ELCRA); One-year limitations period in the employment contract; Rayford v American House Roseville I, LLC; Camelot Excavating Co, Inc v St. Paul Fire & Marine Ins Co

On remand from the Supreme Court for reconsideration in light of Rayford, the court concluded remand was “necessary for the trial court to properly evaluate whether the shortened limitations period in” the employment contract here was enforceable under Rayford. Thus, it reversed the trial court’s grant of summary disposition to defendant-former employer in part and remanded. In a prior appeal (Robinson III), the court had affirmed the trial court. The Supreme Court vacated Part IV of that opinion, which addressed plaintiff’s age-discrimination claim, and remanded for reconsideration of the claim in light of Rayford. It also ordered that the court was permitted to consider whether the “claim was barred by collateral estoppel.” In Robinson III the court ruled “that plaintiff’s age-discrimination claim was barred by the one-year limitations period in her employment contract.” Pursuant to Rayford, “‘courts must now first determine whether a challenged employment agreement is adhesive and, if so, apply Camelot to determine whether a shortened limitations period is reasonable.’” The court noted that considering Rayford was decided after the trial court rendered its decision, it was unlikely to have “engaged in the requisite Camelot analysis regarding the enforceability of the shortened limitations period in plaintiff’s employment contract.” The court added that, even if it had, the court lacked “the record to review its findings. Thus, remand” was required. As to the collateral estoppel issue, as the court had “no record of the trial court’s decision on this issue, if it rendered one at all[,]” it declined to reach beyond its “authority as a reviewing court to address this issue when we cannot discern whether the trial court ever decided it in the first instance.” It instructed the trial court on remand to also consider “whether plaintiff’s age-discrimination claim is barred by collateral estoppel.”

Change of children’s primary physical custody; MCL 722.27(1)(c); The statutory best-interest factors (MCL 722.23); Factors (b)-(d) & (k); Hearsay; Admission of school-attendance records under MRE 803(6) (the business-records exception); Lay witness opinion testimony; MRE 701; Exclusion of testimony about past events; Harmless error

Holding that the trial court’s errors related to the admission of evidence and in its factual findings on the best-interest factors were harmless, the court affirmed the order changing primary physical custody of the parties’ children from defendant-mother to plaintiff-father. The trial court erred during the best-interests hearing in admitting the children’s school attendance records under MRE 803(6). Plaintiff did not authenticate them with a qualified witness’s testimony. Because he “lacked the qualifications necessary to testify to the elements of MRE 803(6), the trial court made an error of law” in admitting the records. But the court found the error was harmless under the circumstances. The records were not offered “to pinpoint specific absences, but to demonstrate that the children failed to attend school regularly while in defendant’s care, and that their attendance improved while in plaintiff’s care, a point that the parties do not dispute.” In addition, any error in admitting “plaintiff’s lay opinion that he believed that the children were playing video games after their appointed bedtimes was harmless.” And while the trial court erred in precluding defendant “from testifying about domestic violence that plaintiff perpetrated during the marriage” the record indicated it was “more probable than not that the error was not outcome-determinative.” As to the best-interest factors, the court found no error in the trial court’s conclusion that (b) favored plaintiff. But it held that the trial court’s factual findings as to (c) were clearly erroneous and that it erred in weighing factor (d) in plaintiff’s favor. As to (k), even if it were weighed evenly, “the trial court’s determination of the other factors provides ample support for [its] decision to modify the previous custody order.” While it erred as to some of the “factors, the errors were harmless. Even if the factors in question were weighed as neutral between the parties,” the trial court did not give them great weight and ample evidence as to the other factors supported its ruling. Its “decision to modify custody relied primarily on plaintiff’s ability to address the children’s school attendance and improve their academic performance.” Further, the evidence of the change in their attitudes toward him “during and after his makeup parenting time” supported its conclusion that their past reluctance to visit him was due to defendant’s interference.

Asylum, withholding of removal, & protection under the Convention Against Torture (CAT); Fear of persecution; 8 USC §§ 1158(b)(1) & 1231(b)(3)(A); 8 CFR §§ 208.16(c) & 208.17(a); Credibility determination; Inconsistent testimony; Whether the Board of Immigration Appeals (BIA) erred by finding that petitioner failed to establish a pattern or practice of persecution against black Fulanis in Mauritania; Immigration Judge (IJ)

On petition for review from the BIA, the court held that there was substantial evidence to support the BIA’s finding that petitioner-Sy was not credible, a finding that was “‘fatal’ to his claims for asylum, withholding of removal, and CAT protection.” Sy, a Mauritanian national, entered the country illegally. After removal proceedings were initiated, he sought asylum, withholding of removal, and protection under the CAT, arguing that he would be persecuted should he return to Mauritania. He claimed that he would be killed or tortured because of his ethnicity where he is “black and a member of the Fulani ethnic group.” He also asserted that he feared persecution based on his past participation in anti-government protests. After hearing testimony from Sy and an expert, the IJ “denied Sy’s applications and found him removable.” The IJ concluded that “Sy wasn’t credible[,]” stressing the inconsistencies in his “testimony about whether his brothers were present during his arrests in Mauritania. Likewise, there was ‘no reasonable explanation’ for why Sy’s brother who lived in New York failed to testify on Sy’s behalf—even by affidavit or video—or for how Sy obtained a passport from an allegedly hostile government. The [IJ] doubted that the Mauritanian government would ‘stamp[] his passport’ and let him leave the country when Sy was allegedly a wanted man.” Lastly, the IJ found “that the similarities between Sy’s stories about each of his arrests ‘just seem[ed] incredible.’” The BIA affirmed. The court first held that substantial evidence supported the BIA’s finding that he was not credible. It referenced the differences between his written declaration and his oral testimony, and found that his story of his arrests was “inherently implausible[.]” Additionally, his explanation of how he left Mauritania made “little sense” where he claimed that he went to the very police that were persecuting him to buy a passport. The court also rejected Sy’s argument that the BIA erred by finding that he failed to establish a pattern or practice of persecution against black Fulanis in Mauritania. It noted that they “are the largest ethnic group of black Africans in Mauritania—they’re not a small or isolated minority. And there has been no broad attempt to harm or imprison” them there. Further, Sy’s expert testimony did not “establish a pattern of persecution against Fulanis in Mauritania.” The court denied the petition for review.

Motorcycle priority; MCL 500.3114(5); Unlimited PIP after exhaustion; Mary Free Bed Rehab Hosp v Esurance; No-Fault Act reform limits; MCL 500.3107c

The court held that, after the highest-priority insurer’s $50,000 PIP medical limit was exhausted, plaintiff could “move down the priority list” under MCL 500.3114(5) and seek additional PIP medical benefits from his own lower-priority policy that provided unlimited coverage. Plaintiff was catastrophically injured while operating a motorcycle and colliding with a motor vehicle, resulting in a below-the-knee amputation and more than $50,000 in medical expenses. The motor-vehicle owner’s insurer, MemberSelect, was undisputedly “the highest-priority insurer” under MCL 500.3114(5)(a) and carried only $50,000 in PIP medical-benefits coverage, which was exhausted. Plaintiff stipulated to dismissing MemberSelect after exhaustion, then pursued benefits under his Allstate motor-vehicle policy that included unlimited PIP medical coverage. The trial court granted Allstate summary disposition, accepting the argument that a lower-priority insurer has no liability once a higher-priority insurer has paid to its limit. On appeal, the court emphasized MCL 500.3114(5)’s directive that an injured motorcyclist “shall claim” benefits from insurers “in the following order of priority,” and it relied on the court’s then-recent published analysis in Mary Free Bed Rehab Hosp, which recognized that, after the 2019 reforms allowing capped coverage, “there may be circumstances in which the benefits sought exceed the first-in-priority insurer’s policy limits.” Quoting that decision, the panel held that “the plain language of MCL 500.3114(5) allows an injured motorcyclist . . . to recover from such lower-priority insurers once coverage by a higher-priority insurer is exhausted,” and that denying access to a claimant’s own unlimited policy “runs counter to the spirit of the no-fault act and its 2019 amendments.” Because Allstate was next in the statutory order once the higher-priority limit was exhausted, the trial court erred in granting summary disposition. Reversed and remanded.

Termination under § 19b(3)(j); Aggravated circumstances excusing reunification efforts; MCL 712A.19a(2)(a); MCL 722.638(1)(a)(iii); Anticipatory neglect; In re Kellogg; Parenting time suspension; MCL 712A.13a(13); In re Ott; Child’s best interests

The court held that the DHHS was not required to make reasonable reunification efforts because aggravated circumstances were established under MCL 712A.19a(2)(a) and MCL 722.638 based on severe abuse of the child’s sibling, that suspending parenting time was proper because contact “may be harmful” to the child, and that clear and convincing evidence supported termination under § (j) with termination serving the child’s best interests. The case arose from allegations that respondent-mother severely abused and neglected the child’s half-sibling, including extensive scarring and “skin injuries,” confinement, and a vitamin C deficiency causing scurvy, while the child lived in the same home and faced a risk of harm. The trial court authorized the petition, placed the child with relatives, suspended parenting time, and ordered no reunification efforts because it found “torture” conduct and other serious physical harm consistent with MCL 722.638(1)(a)(iii). On appeal, the court rejected respondent’s claim that MCL 712A.13a(13) was violated, explaining a parent is entitled to parenting time unless it “may be harmful to the juvenile’s life, physical health, or mental well-being,” and holding that the trial court did not err in finding even supervised contact could be harmful given the allegations, the ongoing criminal investigation at the outset, and the psychological harm of the child remaining connected to the environment where the sibling’s abuse occurred. The court then held that the aggravated-circumstances exception applied because respondent, an adult household caregiver, abused a sibling as defined by shared parentage, and the abuse included “battering, torture, or other serious physical harm,” supported by respondent’s admission she hit the sibling, the father’s admission he witnessed abuse and did not intervene, and medical testimony that the numerous scars were “highly concerning for non-accidental trauma” consistent with “a series of assaultive events.” Because those findings satisfied MCL 722.638(1) and (2), the DHHS was excused from reunification efforts, and termination at initial disposition was permissible. The court affirmed statutory grounds under § (j), applying anticipatory neglect because “abuse is abuse” and the severe, prolonged mistreatment of the sibling while the child lived in the home was highly probative of risk to the child despite differences in age, gender, and biological relationship. The court also affirmed as to best interests, finding no meaningful bond due to the long suspension of contact, respondent’s failure to engage in ordered evaluation and counseling, the child’s need for permanency, and the advantages of relative placement where the grandparents were providing stability and sought adoption. Affirmed.