May 27, 2020

Was it Racism?

The City of Cadillac denies that an encounter between a police officer and a 13-year-old African American was an act of racism.
By Patrick Sullivan | Jan. 11, 2020

It was on a warm, sunny summer evening when the 13-year-old Cadillac student bought some cookies at one of the city’s Dollar Generals before heading home on his bicycle via a section of the Fred Meijer White Pine Trail, a 92-mile trail that runs from the southeast end of Cadillac’s Lake Mitchell to Comstock Park outside Grand Rapids.

A few minutes into his ride, the youth became alarmed: A car was trailing him on the non-motorized, pedestrian-only trail.

Nervous, he pedaled faster, but the car soon caught up. He spun his legs as fast as he could, but the proximity of the car — now just a car-length or so behind him — terrified him, he would later recount. When he spotted an opening at the side of the trail, he turned and got out of the way of the oncoming car. It continued on its way.

This brief encounter occurred in 2015, but the nature of what happened and why it occurred has been the subject of an investigation and a lawsuit in the years since. The youth is an African American who grew up in the overwhelmingly white city of Cadillac. The car was a Cadillac Police cruiser, driven by an officer who, it would later come to light, had shared racially insensitive memes on Facebook.

TALE OF TWO INTERPRETATIONS
Was the encounter, as the City of Cadillac would claim, an unfortunate misunderstanding that occurred when the student crossed paths with an officer who was conducting a search for a missing Alzheimer’s patient, or was it, as the youth and his attorney contend, a menacing act of racism?

There might not ever be a definitive answer to that question.

In December, the city agreed to pay $90,000 to end the lawsuit plaintiff attorney Blake Ringsmuth had filed of behalf of the young man, a result the attorney said amounts to “absolute vindication” for his client.

“This is one of the most important cases of my career,” Ringsmuth said. “It was the proper use of the law to get justice to expose abuse of power against a community member that has no real power. That’s what our justice system, when its being used for its highest purpose, is all about.”

Michael Homier, the attorney who represented the City of Cadillac and its police officer, said Cadillac did not admit any wrongdoing and that the result should not be seen as a vindication for the plaintiffs.

Homier said the result of the case was not a settlement, technically. Rather, the sides agreed to undergo a case evaluation, and the city’s insurance company made the call to accept that evaluation, leading to the $90,000 payout.

“Cadillac didn’t settle the case, and they didn’t pay any money,” Homier said. “Their insurance carrier paid.”
 
A RACIST ACT OR A ‘NON EVENT’?
After the encounter, the student, who is identified in the lawsuit as John Doe, rushed home and told his mother what happened. His mother went to the police department and got a meeting with the then-police chief, Todd Golnick. She wanted to file a complaint, but she said that Golnick told her that things would only get worse for her son if did, Ringsmuth said.

The youth was traumatized over the incident and terrified of the police, said Ringsmuth, so he didn’t think he should let it go. The boy and his mother pushed ahead and eventually hired an attorney.

Meanwhile, the officer involved denied that he ever saw a young African American boy on the trail that evening, according to deposition testimony in the case. In fact, for a year and a half the officer would deny seeing the young bicycle rider.

Homier denied that the police chief attempt to intimidate the kid and his mom in order to prevent them from filing a complaint. Rather, Homier told Northern Express, he told them that if they pursued the case, the youth might have to testify and be cross-examined, and warned that might get complicated for him. Homier said Golnick was giving the teenager and his mom a realistic assessment of the difficult circumstance they were about to get into.

Homier also said that the officer didn’t recall seeing the youth on the trail that evening because that encounter was a “non-event,” at least from the perspective of the police officer.

“You would have to assume that, while on a call looking for an elderly man with dementia, that an officer took time out of his day to harass a young boy on the basis of race,” he said.

Homier said the officer didn’t recall seeing the boy because what happened was like the hundreds or thousands of details that confront people every day but go unnoticed because they have nothing to do with what individuals are focused on.
 
A WITNESS COMES FORWARD
Ringsmuth said Homier might have an explanation for why the officer said he had no recollection of the incident when he was questioned about it the next day — and over the following months — but that does not explain how the officer suddenly recalled the incident 18 months later.

Ringsmuth said he believes the officer was forced to admit that he remembered the incident when he learned that there was a witness that backed up the teen’s version of events.
“He cannot explain why he was unable to remember this when his chief asked him repeatedly about it at the time, and yet, over a year later, [he] does,” Ringsmuth wrote in a summary of the case.

In his lawsuit, filed in Wexford County in 2018, Ringsmuth alleged assault, intentional affliction of emotional distress, gross negligence, and a violation of the Michigan Civil Rights Act.

The allegations in the case stem from the observations of the witness, a woman who, while pulling a car out of an apartment complex, spotted the youth on his bike apparently being chased by a city police car.

In an affidavit she filed, the woman, who had been in the car with her son at the time, described an alarming scene: “My first thought when I saw the police car going that fast and that close behind [him] was that something was wrong and that the police car was chasing him. As soon as there was an opening in the trail, [he] quickly pulled off, and the police car kept going,” the woman recounted.

She went on: The boy “seemed to be pedaling for his life and based on everything I saw, I believe that if he had wiped out on his bike he would have been in danger of being run over. It was a scary sight to see, and my son was upset by it.”

The woman said that she could see the officer in the police car and that he appeared to be very agitated and angry.
 
WHETHER RACE WAS A FACTOR
The legal case was complicated and bogged down throughout much of 2019 with the question of whether what transpired could be determined an act of racism on the officer’s part.

The city filed a motion for summary disposition, asking that the case be thrown out on all counts, including the civil rights violation allegations.

At a motion hearing last February in Cadillac, Circuit Court Judge William Fagerman listened to arguments from each side. Ultimately, he decided there was enough evidence to ask a jury to decide whether the what happened was an act of assault, intentional affliction of emotional distress, and gross negligence. Fagerman ruled, however, that there was no indication that incident amounted to an act of racism, and he threw out that part of the lawsuit.

That was a big blow to the plaintiffs, and Ringsmuth, who said he otherwise had always considered Fagerman to be a good judge, said he was flabbergasted by this decision.
Homier said he believed Fagerman made the right decision because there was nothing in the encounter that demonstrated racism.

Homier argued that the officer ended up driving behind the teenager inadvertently because of the search, that the boy soon pulled off of the trail anyway, and that, soon after, the officer located the elderly man.

“He was returned safely to his caregiver, and the city received a note thanking them for finding him,” Homier argued. The youth “was not struck, was not injured. … There's no allegation that [the officer] even spoke to him. He didn't hurl any racial epithets towards the minor, nothing; zero, not one fact.”

Homier called the lawsuit frivolous and said the civil rights claim was based on circular reasoning.

“They keep asserting in a circular way that we have met our burden in the allegations because we have alleged that it's true. And these allegations, I think, Your Honor, are the worst kind. They are vial, reprehensible, baseless, unsupported allegations alleging racial discrimination against both the city” and the officer, he argued.

Later, he argued that it is normal for a youth to feel threatened when followed by a police officer, but that doesn’t make it racist.

“I get nervous when the police pull up behind me. Everybody gets nervous, I think that's a natural response. Was he scared? I don't doubt he was scared. That doesn't give rise to assault, intentional infliction of emotional distress, civil rights claims, telling the department and the city that they're racist,” he argued.
 
“SOMETHING FOUL AFOOT”
Ringsmuth argued that Homier’s explanation of the encounter didn’t make any sense and that it was impossible to look at what transpired without considering the role racism played.
“Why would a car be that close, going that fast behind a boy on a bicycle, whether it's a police officer or not, when there's no other reason given?” he asked Fagerman. “And the officer says I never saw a boy on the trail. Those don't add up. And so, I believe those facts certainly give rise to a reasonable inference that there was something foul afoot.”

He noted that to the eyewitness, the encounter appeared to be an aggressive act and that his client ended up traumatized by the incident.

Ringsmuth argued that a jury should be able to decide whether this bizarre encounter between a white police officer and an African American youth was an act of racism.

But Fagerman pushed back at the hearing. In questioning Ringsmuth, he challenged the notion that the incident could be characterized a civil rights violation simply because of the race of those involved. This led to a back-and-forth between the lawyer and the judge about whether the circumstances of the encounter could be inferred as racist. Ringsmuth and Fagerman clearly saw the encounter in a completely different light.

According to the transcript:

MR. RINGSMUTH: I believe that the conduct that took place gives rise to an inference.

THE COURT: How so?

MR. RINGSMUTH: Because there aren't any other reasonable explanations, and that is a reasonable explanation.

THE COURT: What, that he was African American, that's why the officer did it?

MR. RINGSMUTH: Yes.

THE COURT: Oh, come on. Are you serious?

MR. RINGSMUTH: Yes, I am.

THE COURT: I doubt it.
 
“TROUBLING” ATTACKS ON SPEECH
Ringsmuth had not had the chance to depose the police officer prior to the summary disposition hearing; he did several days later, and he was able to confirm through that questioning that the officer, Thomas Wade, had shared links on Facebook that could be considered racist toward African Americans. He also learned that Wade had expressed disdain for Treyvon Martin, an African American youth shot and killed in Florida in what was described as an act of racial profiling.

Ringsmuth filed a motion for reconsideration, and there was another hearing among the same lawyers in April. Ringsmuth again argued that the encounter could be inferred to have been racially motivated.

“So, we have got this conduct [that] happens, and it doesn't make sense on its face. It's reckless, it's outrageous, it's assaultive, true. And so now we have to figure out why that happened,” he argued. “And there has been no offered explanation, and now we know he has exhibited some racial — racially insensitive or racist ideas, and so we now look at what happened on the trail, and what inferences can we draw?”

Homier argued that the officer’s Facebook posts may have expressed political opinions, but they did not add up to racism. Moreover, Homier argued, the Facebook material was stuff Wade found elsewhere and shared — not content he created.

“So if we are now going to evolve, I suppose, to a place where the inference can be made that because you share something, that that makes you a racist, um, then that's troubling, particularly in light of political speech and the protections afforded to political speech,” Homier argued. “And Mr. Ringsmuth's idea here is sort of shifting the burden now to the defendant, to show that they're not guilty or not responsible for any of these claims when he says, well, what other reason could there be? They must be racist. That's the response.”

He argued that Ringsmuth still didn’t have any evidence that the encounter was an act of racism.

Ringsmuth countered that some of the posts shared by the officer on Facebook were “very troubling statements.”

Nonetheless, Fagerman upheld his earlier ruling and determined that a civil rights case could not go forward.

In the transcript, Ringsmuth’s astonishment with the ruling was evident.

He asked Fagerman: “This court is saying and is ruling that a reasonable inference from these facts could not be that it was at least in part racially motivated, yeah?”

Fagerman responded: “Yes, that's what I'm saying.”
 
A HIGHER COURT WEIGHS IN
Ringsmuth decided to take the extraordinary step of filing an interlocutory appeal, meaning an appeal that is filed while the case is still pending. Ringsmuth said he knew it was a long shot, but he said he thought he could get Fagerman’s decision reversed, and he didn’t want to wait until after the trial in the case because that would mean his client would have to go through two trials.

He filed with the Michigan Court of Appeals in May, asking them to overturn Fagerman’s disposal of the civil rights claim.

In October, a three-judge court of appeals panel unanimously reversed Fagerman’s decision and ordered that the civil rights claim be allowed to go ahead to a trial.

Soon after that, Ringsmuth said, the defendants agreed to accept the $90,000 settlement.
Depite Homier’s contention that the case was not settled by the city or the officer, Ringsmuth said he believes that the defense could have continued to fight the case if they believed they could win.

“The amount that was awarded was a significant amount,” he said. “Despite their denials, you don’t pay $90,000 when you’ve done nothing wrong, and the city had every opportunity to decline to pay it, and yet, they didn’t.”

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