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Lansing — The city of Grand Rapids can be held liable for an unwritten police policy to fingerprint and photograph residents who do not have identification without first establishing probable cause that a crime occurred, the Michigan Supreme Court ruled Monday.

The state’s highest court did not decide the constitutionality of the discontinued Grand Rapids Police Department procedure but directed the Michigan Court of Appeals to do so, saying the lower court erred when it dismissed the case earlier this year.

The American Civil Liberties of Michigan filed the case on behalf of two black teens who were photographed and fingerprinted but never charged with a crime, alleging the procedure violated their Fourth Amendment right to be free from unreasonable searches and seizures.

Monday’s Supreme Court ruling is “a critically important ruling in terms of police accountability,” said ACLU attorney Miriam Aukerman. “What the court said is that municipal governments are responsible when they set policies that can be applied in an unconstitutional way.”

Officers stopped Denishio Johnson in 2011 after receiving a tip he had been seen peering into vehicles in the parking lot of an athletic club, which he said he used as a shortcut on his walk home. In 2012, an officer thought it looked suspicious when he saw Keyon Harrison hand what appeared to be a model train engine to another boy. Harrison said he'd returned the train after using it for a school project.

Police photographed and fingerprinted both teens, who did not have identification on them, but never arrested them or found probable cause they’d committed any crime.

“This is the type of aggressive tactic that undermines trust and leads communities to feel they are being policed rather than acting in partnership with the police,” Aukerman said.

An attorney who represented the City of Grand Rapids in the case was not immediately available for comment.

The Court of Appeals in May ruled Grand Rapids could not be held liable for the police procedure, which the city said was largely discontinued in 2015. A three-judge panel ruled cities cannot be held unless its policy or custom directed employees to violate a person’s constitution rights.

The Michigan Supreme Court disagreed.

“We hold that a policy or custom that authorizes municipal employees to perform their duties in a particular manner represents a deliberate decision of the municipality and an employee’s performance of his or her duties in the manner authorized may be considered acts of the municipality,” said the lead opinion written by Justice Richard Bernstein.

Justices Bridge McCormack, David Viviano and Beth Clement joined Bernstein on the opinion.

Justice Kurtis Wilder, joined by Chief Justice Stephen Markman and Justice Brian Zahra, agreed with the conclusion but wrote a separate opinion to provide additional guidance on future questions of municipal liability.

The case now heads back to the Michigan Court of Appeals for consideration of whether the Grand Rapids photograph and fingerprint procedure was unconstitutional.

joosting@detroitnews.com

(517) 371-3662

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