MI: Policy to photograph and fingerprint detainees violated 4A and stated claim against city

The Grand Rapids Police Department has a policy permitting officers to photograph and fingerprint people who are stopped just because they want to. The plaintiffs stated a claim for relief against the city for its policy. Johnson v. Vanderkooi, 2018 Mich. LEXIS 1569 (July 31, 2018):

Turning to proximate causation, we must consider whether the injury alleged was a foreseeable consequence of the City’s policy or custom. See id. at 163. More specifically, was it reasonably foreseeable that performing a P&P in accordance with the alleged policy or custom would result in a Fourth Amendment violation? We have no difficulty concluding that the answer is yes.

No party has argued that the officers here did anything other than follow the City’s P&P policy or custom. The record shows that GRPD officers were, at a minimum, authorized and trained to perform P&Ps during any field interrogation or stop in which an officer believed a P&P was appropriate. It is reasonably foreseeable that when a police department authorizes and trains its officers to use a specific investigative tactic, the officers will follow that training. While the City suggests that officers must consider the facts and circumstances of each encounter, there is no indication that the officers were instructed that probable cause of criminal conduct was a prerequisite to performing a P&P. The potential problem for the City is that performing a P&P without probable cause might violate a person’s Fourth Amendment rights. US Const, Am IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….”). If the nonconsensual fingerprinting of a person without probable cause is unconstitutional, then the execution of the P&P policy authorizing such conduct would result in a constitutional violation. This is sufficient to show that reasonable minds could differ as to proximate causation.

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