Burns v. Sailor: Ludington Citizens Get Burned, City Sails On

[XLFD]

The Ludington City Council's agenda for April 8, 2013 has scheduled within it (9d) a closed session to discuss the matter of Shelly Jo Burns v. Aaron Sailor, a lawsuit by a Ludington citizen against a LPD Officer (Sailor).  You may have read about it in the City of Ludington Daily News yesterday, right at the very end of the usual Saturday-before-the-Monday-meeting blurb about the council meeting. 

 

They say:  "The council is also scheduled to meet in closed session to discuss a lawsuit filed against Ludington Police Officer Aaron Sailor.  Shelly Jo Burns is alleging the officer committed assault and battery and violated her civil rights during an incident on February 25, 2012." 

                                             Ludington Police Department's Aaron Sailor, second officer from left

It's amazing how well they keep secrets here in Ludington.  I live on the same street, East Dowland, as the incident happened, run a local watchblog, attend most all of the City Council meetings I am legally permitted at, read all the meeting minutes, and have made over 150 FOIA requests to the City of Ludington since 2009, but I was totally in the dark on this one.  It is not too big of a mental exercise to believe that our local police could be capable of violating our citizen's civil rights, this is, after all, the city that created a policy that allows their City Manager to ban anyone from public facilities on a whim without any regard to due process.  And the City whose police officer took part in a Taser Tag party on a citizen who had committed no crime.

 

 

The above memo to the council instructs the city council that they will be discussing pending litigation in closed session.  Haughty City Manager John Shay says they will discuss this in closed session, but he has no ability to make that motion or a vote to do so.  That determination is to be made by the City Councilors.  If we review the agenda, we will also find Shay has said part of their agenda is to "Uphold FOIA Coordinator's response dated 3/19/13 to Tom Rotta's request dated 3/14/13."  If that is part of their agenda, it makes it pretty pointless for me to write a 5 minute speech detailing how wrong the City's FOIA Coordinator is wrong with his blanket denial of records involving Lowell Fetters shootout with the cops last June.  'The agenda is already set' covers that in five words.

 

There are indications that this complaint started out in our local circuit court, but got switched over to the Western Michigan Federal District Court, probably due to the Constitutional violations alleged in the complaint.  But here's the complaint complete with the defendant's answers to that complaint.  It is followed with a link to the .pdf file it came from and a couple of more documents and some analysis.

 

The .pdf file for this answer is here.  Here is a supplemental summary of the two party's version of events found in this document:

 

 

My analysis of the facts behind this case may be tainted by my past misgivings about the LPD, so be free to make your own decisions.  It seems agreed that Sailor did enter the house without displaying any type of warrant and without the consent of the owner.  The homeowner expressly denied Sailor to enter the residence, Sailor never produced a search warrant until it was brought later, but he advanced further into the house, and made some contact with Ms. Burns that caused injuries. 

 

As such, it seems to me like they did violate Mrs. McCann's and her visiting sister's Fourth Amendment rights at the least, and after violating those rights knocked down an innocent Ludington citizen bystander and injured her.  On the surface, this is a strong case, because with the given fact set, Officer Sailor and McMellen looks to have clearly violated the two sister's Fourth Amendment rights.  And here's why in a nutshell:

 

The Fourth Amendment protects private citizens from unreasonable searches and seizures, which includes entering your house without consent and searching your house without a warrant.  There are some exceptions, but let's start with the basics first. What is a search warrant? If a judge is convinced that there is "probable cause" of either criminal activity or contraband at a place to be searched, he or she will issue and sign a search warrant—a court order that allows the police to search a specific location for specified objects at a specific time.

 

You may ask to read the search warrant or have the officer read it to you.  Absent consent or exigency, an officer cannot enter a home to arrest a person who does not live there unless the police also have a warrant to search that home for the person to be arrested (Steagaid v. U.S.). Whether an arrest warrant is also required is an open question.  But in this case, the officers didn't have a search warrant and never produced their outstanding warrant.

 

There are four main circumstances in which a warrant is not required for police to search your house:

1. Consent. If the person who is in control of the property consents to the search without being coerced or tricked into doing so, a search without a warrant is valid. Note that police do not have to tell you that you have the right to refuse a search, but you do. Also, note that if you have a roommate, he or she can consent to a search of the common areas of your dwelling (kitchen, living room), but not to your private areas (bedroom, for instance). On the other hand, the Supreme Court recently ruled that one spouse cannot consent to the search of a house on behalf of the other.

2. Plain View. If a police officer already has the right to be on your property and sees contraband or evidence of a crime that is clearly visible, that object may be lawfully seized and used as evidence. For example, if the police are in your house on a domestic violence call and see marijuana plants on the windowsill, the plants can be seized as evidence.

3. Search Incident to Arrest. If you are being arrested in your house, police officers may search for weapons or other accomplices to protect their safety (known as a "protective sweep"), or they may otherwise search to prevent the destruction of evidence.

4. Exigent Circumstances. This exception refers to emergency situations where the process of getting a valid search warrant could compromise public safety or could lead to a loss of evidence. This encompasses instances of "hot pursuit" in which a suspect is about to escape. A recent California Supreme Court decision ruled that police may enter a DUI suspect's home without a warrant on the basis of the theory that important evidence, namely the suspect's blood alcohol level, may be lost otherwise.

None is 'warranted'  here, and the contact made with Shelly Jo Burns, apparently with her back to the officer, and absent the authority to be in the house in the first place makes any injuries she received from Officer Sailor his fault, for apparently not following the correct protocol. 

 

But here is the important part.  You may feel that the lawsuit is a lot of to-do about nothing and support the actions of the defendant as a necessary trade-off for catching a fugitive.  Or you can feel that violating the two sister's rights to peacefully reside in a domicile absent a properly secured warrant is something that demands further discipline for Aaron Sailor and Matt McMellen and a huge award for both women.  Or something in between.  You may think that Ms. Burns is overstating her injuries or understating them. 

 

But the City of Ludington has tentatively decided that they will settle this case for an undisclosed sum at this point.  And the purpose of Monday night's closed session will be just so they can vote on those terms as far away from the public's eye as they can.   Take a look at these two court documents:

 

 

 

 

 

 

 Shown here and here; note our $60+ an hour John Shay is attending on behalf of the defendant.  So the only thing left to do is to have the Ludington City Council decide, in closed session, whether the City of Ludington proper, will agree to the terms negotiated, come out of that meeting, and vote on whatever terms were agreed upon, using the taxpayer's money to pay off this 'blood money'.  What a perfect example of a government that operates almost solely in the dark.  Which raises this other question...

        

The City's often used risk-management attorneys have came forth to defend several public figures serving the City lately, including LPD's Warmuskerken, City Hall's John Shay, and now LPD's Aaron Sailor.  Sailor is the only one to be individually charged from the get go. 

 

But as was pointed out in this thread :  In Messmore, Sonnenberg, and all other similar precedents, the courts of Michigan have ruled that if a police officer in service to the community is sued for some incident occurring while they are acting in their official capacity, the public entity they serve is not forced to defend their actions, nor are they forced not to defend their actions.  It is up to the discretionary powers of the board that oversees the expenditures of the public entity. 

 

The Ludington City Council failed to make such a decision in an open meeting in this case, allowing Officer Sailor the ability to use their legal services and the City of Ludington taxpayers to fund the expense and their insurance to pay off the lawsuit without official approval.  So much for personal and fiscal responsibility.   Where there is no accountability, public officials can get away with practically anything irregardless of the laws and the rights of their citizens.  This is just one of many cases in point.

[Willy]

The police should have stayed out and surrounded the house until the search warrant was obtained. If the criminal left the house he could have been apprehended at that time if not then the police could then enter the house with a search warrent and look for the suspect as well as the stolen goods. It's to bad the the plaintiff was injured but that incident could be or could not be verified by the two witnesses inside the house. If I were those two ladies I would be extremely upset with Jeff McCann for bringing this down on them. If anyone is to blame for what happened it's that sneaky crook.

[XLFD]

The City's explanation and answers do not cover their rationale for not observing the rights of the homeowner (and her guest), regardless of the opportunity presented to nab Jeff, and your analysis is correct as to what they should have done, absent a valid warrant. 

[jeff mccann]

Who are u to call me a sneaky crook? U don't even know me so u need to keep ur mouth shut. It's people like u that get sued every day for slander and now look what ur doing public slander. So I did screen shot what u wrote and I did call a lawyer so u will be hearing from some one. So maybe u might want to think before u post something About some thing.

[XLFD]

Willy might know you, but you probably don't know who he is, as there are plenty of Bills and Williams in these parts.  I doubt he would have called you a sneaky crook without some knowledge of your situation, but you do have the opportunity to do other things than threaten a slander suit against someone who used a rather tame epithet, which your attorney probably advised you would be pointless against some anonymous internet poster who meant you no harm.

In the meantime, many of the posters at the Ludington Torch do not have much respect for the criminal justice system around these areas, due to their unprofessional and corrupt actions which they freely do without repercussions.  The LPD had you apparently targeted for the actions which led to your arrest and incarceration and to Ms. Burns injuries; they don't usually set up such stings for someone who is guiltless of any crime. 

But they often make mistakes, which they did in this case in the process of your arrest.  And they have often made guilty people out of innocent ones.  Tell us your story and include documentation, and make us believe you're not a sneaky crook.

[Willy]

Jeff

This topic was posted almost 2 years ago. Why have you waited so long to complain?

[jeff mccann]

Bcuz I just learned of this site. And honestly this site is bullshit and I know numerous people who have talked to attorneys about the person who has made this site.

[XLFD]

Well, we appreciate the word of mouth advertising to our attorney friends!

Jeff, I have no idea whether you're a sneaky crook or not, I did not make the comment, but I do know you're ill-mannered and trite from your first two posts.  Be aware, that I, the person who made this site, believe your aunt, Shelly Burns, was deserving of the settlement she received, and that the LPD would have been operating seriously contradictory to established policies and law in invading your mother's house to apprehend you without showing a warrant.

Since you like talking with attorneys about stuff, and assuming your aunt's version of events is factual, one could be left wondering why you haven't filed a lawsuit against the LPD and the City of Ludington for violating your basic civil rights in your arrest that night.  You must have one sorry lawyer if they can't even figure that out, Jeff.

[JRGF]

If you do not like this website well than stay off of it

[Willy]

Jeff

As stated by several members of this forum, if you are innocent of what you are accused of then say so and  back it up with proof. If you do that, you will get a whole lot of support from the members of this forum. I don't know what you have heard about  this forum's creator, but he will back you all the way if you are  innocent and are being harassed by City officials or the police. You obviously have been told a pack of lies if you believe this forum is BS.

[stump]

He might have been unlawfully detained LOL for being that sneaky crook you accused him of being. Or didn't have access to a computer,or maybe just a slow reader?

[AQUAMAN]

Jeff just sent me a message that said his warrant was for "misdemeanor child support". I personally consider this kind of warrant, given the LPD's brutality in this incident, as chickenshit. If they were seeking a felony type individual, guilty of some high crime, that's something else entirely. But, LPD broke the law! This again proves what many here have said for years already, the LPD is out of control when it comes to excessive force and brutality on locals. The LPD also breaks the law to achieve their agenda, which also shows how out of control they've become and continue to be. The TORCH always gives everyone a chance to explain their side of the story, and sadly, this story had a bad ending.

[Willy]

If he is really jeff Mccann, he should stand up for himself and prove his innocence, unless of course,  he's still having legal troubles with the Court over this matter. Why would he dig up this old topic? The World didn't even know about it and if anyone really cared, it was forgotten about a long time ago. If the event was so painful why open the wound and bring it to light again?