Case 1:22-cv-00382-JMB-RSK ECF No. 1, PageID.

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________________

DAEVIONNE SMITH,

Plaintiffs, Case No.

v. Hon. Robert J Jonker

OFFICER GREGORY BAUER, Individually

and in his official capacity;
CITY OF GRAND RAPIDS POLICE
DEPARTMENT; CITY OF GRAND
RAPIDS; and any unknown, yet to be
discovered liable persons or entities.

Defendants.

John R. Beason III, Esq.

The J.R. Beason Firm PLLC.
Attorney for the Plaintiff
(269) 213-1426
[email protected]
 Case 1:22-cv-00382-JMB-RSK ECF No. 1, PageID.2 Filed 04/27/22 Page 2 of 18

(1)

PLAINTIFF’S COMPLAINT AND REQUEST FOR DAMAGES

Plaintiff, DAEVIONNE SMITH, comes now through counsel, and brings this

action for violations of due process, reckless, wanton use of a firearm, assault,

battery, intentional infliction of emotional distress, and gross negligence against the

Defendants Officer Gregory Bauer and the City of Grand Rapids Police

Department in their individual and official capacities, alleges as follows.

(2)

INTRODUCTION

This is a Civil Action asserting claims under the Federal Constitution and

Michigan law alleging violations of constitutional due process and the State’s

“Reckless, wanton use, or negligent discharge of firearm” statute, substantiating

disparate treatment and gross negligence causing assault, battery, and severe

mental anguish and suffering to the plaintiff in violation of M.C.L. § 600.5805,

M.C.L. § 750.81, and M.C.L. § 752. 863a. Plaintiff requests a jury trial and seeks

an award of compensatory and exemplary damages, as well as reasonable attorney

fees and cost pursuant to and M.C.L.A. § 600.2954 and 42 U.S.C. §1983.

(3)

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JURISDICTION AND VENUE

This court has jurisdiction over all causes of action set forth in this complaint

pursuant to 28 U.S.C § 139, as the plaintiff and the Defendants reside in the

County of Kent, in the State of Michigan. The occurrence of the significant and

relevant incidents giving rise to this complaint took place in Grand Rapids, MI,

County of Kent, within the jurisdiction of this Court.

(4)

THE PARTIES

Plaintiff is a citizen of the State of Michigan and resides in the City of Grand

Rapids in the County of Kent.

(5)

Defendant Officer Gregory Bauer is a citizen of the State of Michigan with the

competency and capacity to sue and be sued. At the time of the alleged extreme

conduct, the Defendant was an employee and resident in Grand Rapids, MI (Kent

County) and currently retains domicile and a residence in Western Michigan. The

Defendant City of Grand Rapids Police Department, is a municipal corporation

department operating within the County of Kent in the State of Michigan.

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FACTS GIVING RISE TO PLAINTIFF’S COMPLAINT

(6)

On December 9th of 2021, the Plaintiff, Mr. Daevionne Smith and two friends

were enjoying a Saturday night out on the town in Grand Rapids, MI. At

approximately 12:00 am in the night, the Plaintiff and friends stopped by his

elderly father’s home to check on him. Finding his father asleep, Mr. Smith used

the restroom and proceeded back towards his car, a white Audi A8 Sedan.

(7)

Also on the night of December 9th, 2021, simultaneously as the Plaintiff was

innocently journeying through the city, Grand Rapids Police Department officers

were looking for a stolen vehicle, a white Audi A7 coup and mistakenly believed

they found it when the Plaintiff’s car was spotted at his residence near Cass

Avenue and Sycamore St SE. Failing to check the license plate or model of the car,

GRPD officers set up a perimeter around the Plaintiff’s father’s home and waited

for Mr. Smith to come out.

(8)

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When Mr. Smith came out of his father’s house, he could sense the presence of

someone waiting on the side of the structure. Fearing the shadowy figure was a

robber or assailant, he fled in the opposite direction. Seconds later, with no

forewarning or announcement proclaiming his pursuers as police officers, a gun

blast rang out and a bullet flew past the Mr. Smith’s head, close enough for him to

feel and hear the force of the small piece of steel, which caused him to immediately

throw himself to the ground in fear of his life. As a result of the impact from

sudden fall and the shocking near death experience, the Plaintiff is suffering loss of

mobility and chronic pain in his arm and shoulder, as well as from post traumatic

stress disorder, sleep deprivation, mental anguish, and emotional pain and

suffering.

(9)

After the life-threatening shooting incident, interacting with indifferent police

officers, and watching public prosecutors fail to hold the officer accountable for

reckless and malicious intent, the Plaintiff, while enduring post traumatic stress,

concluded that the GRPD officers’ poor training and pattern of disregarding human

rights would result in the death of another minority citizen. Just days after hiring

an attorney to pursue this claim, another minority motorist, Patrick Lyola, was

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killed, being shot in the back of the head by a Grand Rapids Police Officer. Prior

to his own near death shooting in the back of head, Mr. Smith’s cousin, Breonna

Taylor was killed by police officers as well. The Plaintiff is also suffering from

heightened anxiety in relation to the foreseeable deaths of minority citizens at the

hands of the Defendants.

(10)

As a result of the Defendants’ lack of public safety policies, use of force protocols,

firearm safety procedures, and or their failure to apply them in the incident at issue,

the GRPD grossly violated the standard of care owed to the public when they drew

deadly weapons and discharged one without justification, thereby recklessly

endangering the lives of an unarmed innocent citizens, the public at large, and

causing the physical and emotional suffering of the plaintiff.

(11)

Defendants, The City of Grand Rapids and its Police Department, have an

extensive record in the Western Michigan jurisdiction and community for abusive,

violent, and reckless policing against minorities. In 2019 videos circulated through

the community of GRPD officers punching a “Black” citizen some thirty times,

using excessive force to achieve compliance. The same year, in 2019, GRPD

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officers held two Latino teens at gunpoint while jaywalking. In March of 2017,

GRPD officers pulled guns on an African American preteen and a group of teenage

boys walking home after playing basketball, posing no threat to armed men. In

December of 2017 GRPD officers handcuffed an eleven year old African American

girl, her mother, and aunt at gunpoint when they posed no physical threat to the

officers.

(12)

According to the Defendant’s April 2017 “Traffic Stop Data Analysis” study

conducted by Lamberth Consulting, Black drivers are twice as likely to be stopped

by Grand Rapids Police Department than white drivers, causing a discriminatory

over abundance of police contact with officers who have rarely been held

accountable for their abuses. The Lamberth study also revealed that despite the

chances of finding contraband being the same across all races, Black motorists

were twice as likely to be searched for contraband after a stop by the Grand Rapids

Police Department. The State of Michigan Department of Civil Rights has over

sixty open complaints against the Defendants. The City of Grand Rapids has long

been aware of the open and obvious discriminatory practices by its’ Police

Department against its own minority citizens.

(13)

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For several years, the City of Grand Rapids, as a municipal corporation, has been

aware and complacent in the human rights violations of its police department. For

several years, the City of Grand Rapids has possessed foreknowledge of its

officers' regular practices of needlessly drawing deadly weapons on and using

excessive force against minority citizens. On August 5th of 2020, Governor

Gretchen Whitmer signed Executive Directive 2020-9, recognizing racism as a

public health crisis and her administrations’ steps towards addressing it within state

government. Despite the Defendants’ foreknowledge of its constant abuses and the

State’s public address to the issue, the City of Grand Rapids failed to take steps to

protect its minority citizens from their violent police force. By failing to act on

their foreknowledge of the constitutional and human rights violations being

committed by their employees against their citizens, the Defendants created the

incident giving rise to suit.

(14)

COUNT I. GROSS NEGLIGENCE

Plaintiffs, realleges paragraphs 1-14.

(15)

As a licensed and trained police officers and lethal arms holders acting as public

servants, the Defendants owed the Plaintiff and the community at large, a duty of

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care and they breached that duty of care when he violated state laws and acted with

wanton disregard for the rights and safety of the Plaintiff, thereby causing him

impairment of bodily function, extreme mental anguish, and loss of enjoyment of

life. The Grand Rapids Police Department and the City of Grand Rapids were

aware of these types of tactics being used in incidents involving African Americans

and Latinos and failed to properly train, reprimand, and or manage the Grand

Rapids Police Department Officers. The City of Grand Rapids and its Police

Department failed to establish and or properly execute protocols and policies

designed to protect the entire community while ignoring community complaints

and calls for reform for years.

(16)

A gross negligence claim must establish (1) that the Defendant “owed a duty of

care to the Plaintiff”, (2) that the Defendant “breached that duty”, and (3) that “the

breach proximately caused his/hers damages.” See Pathways, Inc. v. Hammons,

113 S.W.3d 85, 88 (Ky.2003) (citing Mullins v. Commonwealth Life Ins. Co., 839

S.W.2d 245 (Ky.1992)). The Plaintiff “must demonstrate “an element either of

malice or willfulness or such an utter and wanton disregard of the rights of others

as from which it may be assumed that the act was malicious or willful.” Phelps v.

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Louisville Water Co., 103 S.W .3d 46, 51 (Ky.2003). McIntosh v. Data RX Mgmt.,

Inc., No. 5:13-CV-140-TBR, 2014 WL 774609, at *5 (W.D. Ky. Feb. 25, 2014).

(17)

The Defendants, Officer Bauer, the Grand Rapids Police Department, and the City

of Grand Rapids, owed the Plaintiff a duty of care as public servants, and they

breached that duty when they knowingly, willfully, and purposefully failed to

perform the legal standard of care, i.e, attempting to verify rather or not the stolen

vehicle being searched for has been located prior to drawing lethal weapons and

pursuing the driver of an unverified vehicle as an armed and dangerous suspect.

The Municipal Defendants breached their duty of care when they failed to properly

establish and or properly execute protocols or policies designed to protect the

innocent plaintiff and the minority public at large.

(18)

The Defendants knowingly, purposefully, and with wanton disregard for the

Plaintiffs’ rights and safety, breached the duty of care owed to Mr. Daevionne

Smith when Gregory Bauer and other officers set up a perimeter around the

Plaintiff and drew weapons before verifying that the suspect was armed or that his

private vehicle was actually stolen, and then proceeding to pursue him and

discharging a deadly weapon in the direction of his head, causing him post

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traumatic stress and bodily injury. The Defendants breached their duty of care

when they failed to properly establish and or properly execute protocols or policies

designed to protect the innocent plaintiff and the public at large.

(19)

COUNT II. ASSAULT & BATTERY

Plaintiffs, realleges paragraphs 1-19.

(20)

The Defendants committed assault and battery when they intentionally pursued the

Plaintiff and shot a deadly weapon at the back of his head, causing him to collide

with the ground with excessive impact while in fear of his life, thereby harming the

plaintiff physically and mentally.

(21)

“Assault” is defined as either an attempt to commit a battery or an unlawful act that

places another in reasonable apprehension of receiving an immediate battery.

People v. Meissner, 294 Mich. App. 438, 812 N.W.2d 37 (2011). “Battery” is an

intentional, unconsented and harmful or offensive touching of the person of

another. People v. Meissner, 294 Mich. App. 438, 812 N.W.2d 37 (2011).

(22)

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“The offense of assault requires proof that the defendant made either an attempt to

commit a battery or an unlawful act that places another in reasonable apprehension

of receiving an immediate battery.” People v. Henry (Aft. Rem.), 305 Mich. App.

127, 854 N.W.2d 114 (2014). A “battery” is an intentional, unconsented and

harmful or offensive touching of the person of another, or of something closely

connected with the person. People v. Henry (Aft. Rem.), 305 Mich. App. 127, 854

N.W.2d 114 (2014).

(23)

“A “battery” is an intentional, unconsented and harmful or offensive touching of

the person of another, or of something closely connected with the person; it is not

necessary that the touching cause an injury. Lakin v. Rund, 318 Mich. App. 127,

896 N.W.2d 76 (2016). “Common-law battery does not require force capable of

causing physical pain or injury.” Stokeling v. United States, 139 S. Ct. 544, 202 L.

Ed. 2d 512 (2019).

(24)

Michigan law defines "serious impairment of body function" as such: “an

impairment affects a person’s general ability to lead his or her normal life where

the impairment "influence[s] some of the person’s power or skill, i.e., the person’s

capacity to lead a normal life." Patrick v. Turkelson, 919 N.W.2d 280(Mem) (Mich.

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2018). The Plaintiff suffered an arm injury, an offensive touching, and post

traumatic stress disorder as a result of the reckless discharge of a firearm towards

his head, forever impairing his ability to lead a “normal life.” Patrick v. Turkelson,

919 N.W.2d 280(Mem) (Mich. 2018).

(25)

Defendants, the City of Grand Rapids, Grand Rapids Police Department, and

Officer Gregory Bauer, committed assault and battery when they intentionally

drew weapons, pursued, and discharged a deadly weapon at the head of the

Plaintiff, causing him to fall to the ground in physical and emotional anguish.

Furthermore, the Defendants caused the offensive and harmful touching of the

Plaintiff when they wrongfully detained him as a result of their failure to establish

and or impartially employ standard public safety protocols or policies irrespective

of race.

(26)

DAMAGES

Plaintiffs, realleges paragraphs 1-26.

(27)

A “jury may be permitted to assess punitive damages in an action under § 1983

when a defendant's conduct is shown to be motivated by evil motive or intent, or

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when it involves reckless or callous indifference to federally-protected rights of

others and such threshold applies even when the underlying standard of liability for

compensatory damages is one of recklessness. 42 U.S.C.A. § 1983. Smith v. Wade,

461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). The calculation of future

damages for types of future damages described in subsection (1)(b) shall be based

on the costs and losses during the period of time the plaintiff will sustain those

costs and losses. M.C.L. § 600.6305

(28)

RELIEF REQUESTED

Plaintiff, realleges paragraphs 1-28.

(29)

As a result of the aforementioned legal violations suffered by the Plaintiff and

caused by the Defendants, Mr. Daevionne Smith is enduring serious impairment of

bodily functions, loss of enjoyment of life, and post traumatic stress disorder

symptoms manifested in mental anguish, humiliation, outrage, anxiety attacks,

chronic body pains, headaches, loss of sleep, and emotional distress.

(30)

Wherefore, the Plaintiff respectfully requests that this Honorable

Court enter a Judgment in her favor against Defendants for the following relief:

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I. That $7,500,000.00 be paid in compensatory and exemplary damages to the

Plaintiff to compensate him for the mental and physical anguish, loss of

enjoyment, and the post traumatic stress he will continue to endure;

II. That $500,000.00 be paid as an award of interest, costs, and reasonable

attorney fees;

III. That equitable relief in the form of an order mandating cultural sensitivity

training, conducted by firms provided by the Plaintiff, for all Grand Rapids

Police officers, city employees, and elected officials, so as to address the

public health crisis of racism in the City of Grand Rapids government and

public institutions.

IV. Any other compensatory, exemplary, or equitable relief that this Honorable

Court deems appropriate at the commencement of trial.

THE J.R. BEASON FIRM, PLLC.

Attorney John R. Beason III
for Plaintiff, Mr. Daevionne Smith

Dated: April 27, 2022 By: /s/ John R. Beason III, Esq.
The J.R. Beason Firm PLLC.
D.C. Bar No.: 1721583
IBA Bar No.: 1522438
853 McAlister St.
Benton Harbor, MI 49022
(269) 213-1426
[email protected]

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________________

DAEVIONNE SMITH,

Plaintiffs, Case No.

v. Hon. Robert J Jonker

OFFICER GREGORY BAUER, Individually

and in his official capacity;
CITY OF GRAND RAPIDS POLICE
DEPARTMENT; CITY OF GRAND
RAPIDS; and any unknown, yet to be
discovered liable persons or entities.

Defendants.

JURY DEMAND
To the extent that a jury trial is allowed with regard to any of the issues as set
forth above, Plaintiff mercifully demands such.

THE J.R. BEASON FIRM, PLLC.

Attorney John R. Beason III
for Plaintiffs, Mr. Daevionne Smith

Dated: April 27, 2022

By: /s/ John R. Beason III, Esq.
Attorney John R. Beason III
D.C. Bar No.: 1721583
IBA Bar No.: 1522438
853 McAlister St.

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Benton Harbor, MI 49022

(269) 213-1426
[email protected]

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