Jeffrey Wolgast v. John Richards

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 10a0487n.06

No. 08-1724 FILED

Aug 09, 2010

UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk

FOR THE SIXTH CIRCUIT

JEFFREY A. WOLGAST, )

)

Plaintiff-Appellee, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

JOHN RICHARDS, Corporal, )

)

Defendant-Appellant. ) OPINION

______________________________ )

Before: KENNEDY, MOORE, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Defendant John Richards appeals the district court

order denying his motion for summary judgment in this action asserting § 1983 and state-law claims.

We DISMISS in part, VACATE in part, AFFIRM in part, and REMAND for proceedings

consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The district court’s April 2008 opinion provides a thorough account of the relevant

background facts:

At 10:27 p.m. on May 29, 2004, central dispatch for the Tawas Police Authority

(“TPA”) in Tawas, Michigan, received a telephone call from a male who stated that

the Crossroads Bar & Grill (“Crossroads”) was going to “blow tonight,” and then the

man hung up the phone. The exact content of the call, as later transcribed, was as

follows:

There’s a place in Tawas City called the Corssroads [sic]. That place

is going to f***ing blow tonight. Nobody’ll f***ing believe me. It’s

going to blow tonight.

The call, which was made from a pay phone near Freel’s Market (“Freel’s”), was

interpreted as a bomb threat. Plaintiff’s son was employed by Freel’s and he worked

at that location the night in question, with his shift ending at approximately 9:00 p.m.

Defendant Richards contacted Officer Mark Ferguson (“Officer Ferguson”) and

together they proceeded to the area near the market where the pay phone is located.

No one was near the phone and the officers were unable to locate anyone who had

observed any recent use of the phone.

Since the officers were aware that Plaintiff Jeffrey Wolgast had made calls

to TPA central dispatch complaining about excessive noise from Crossroads in the

past, they suspected Plaintiff may have made the bomb threat as well. The officers’

summary report indicates that after the officers did not locate anyone at the payphone,

Defendant Richards called the TPA central dispatch and asked them to “pull up prior

calls made by the Wolgast’s [sic] and see if they sounded the same.” The incident

report goes on to say that “[Defendant] Richards was then advised, by Dispatcher

Golimbiewski, that Dispatcher Soroka stated that it did sound like one of the

Wolgast’s [sic].” The report also notes that “Dispatcher’s [sic] Golimbiewski and

Soroka are the midnight crew at Central Dispatch and has [sic] talked to the

Wolgast’s [sic] on numerous occasions when they have called in regarding loud

Music at Cross Roads.”

The officers proceeded to Plaintiff’s residence, where they questioned

Plaintiff, his wife, and his son, all of whom denied making the call. The officers

indicated to Plaintiff and his family that they would be sending tapes of Plaintiff’s

previous phone complaints and the tape of the bomb threat to the Michigan State

Police crime lab for voice analysis and that, if the voices matched, Plaintiff would be

charged with a felony. Although initially considered a suspect, Plaintiff’s son, who

had also complained about the noise at Crossroads in the past, was eliminated from

suspicion by the officers after his mother stated that her son was home at the time the

call was made.

Defendant Richards prepared an incident report that detailed his findings.

The report documented his conversations with Plaintiff, his wife, and his son. In

pertinent part, the report stated:

[Defendant] Richards spoke to [Plaintiff] after speaking to [Plaintiff’s

wife] and [son]. [Plaintiff] admitted that he was out on a bicycle ride

and that he had ridden down US-23 past Freel’s Market. [Plaintiff]

stated that he returned home from his bicycle ride approximately

twenty to twenty five minutes prior to Officers [sic] arrival. It should

be noted that the call came in at 10:26 p.m. and Officers arrived at

2

[Plaintiff’s] residence at [10:41 p.m.].1 [Plaintiff] claimed that he

did not call 911 from the pay phone and that if it was him, he would

just [sic] called from his own residence. [Defendant] Richards

advised that the caller was on tape and that it would be sent to the lab

to be compared to [Plaintiff’s] prior complaints about Cross Roads.

[Defendant] Richards then asked [Plaintiff] what the outcome of the

tapes would be and [Plaintiff stated] that it would come back as not

being his voice.

(emphasis in original). Sometime after Defendant Richards instigated the

investigation, he left the department for a position with the Michigan State Police.

As a result, Defendant Parent continued the investigation.

More than two months later, on August 4, 2004, a warrant was issued for

Plaintiff’s arrest. The affidavit in support of the arrest warrant was signed and

submitted by Defendant Parent. Defendant Richards, however, drafted both the

police report and the affidavit signed by Defendant Parent. The affidavit states:

1. This incident occurred on 05-29-04 at approximately 10:26 p.m.

This incident occurred at 1139 W. Lake St. (Freel’s Market

payphone), City of Tawas City, County of Iosco, State of Michigan.

2. Bomb Threat: At 10:26 p.m. Central Dispatch received a 911 call

stating that there was a place in Tawas City by the name of Cross

Roads and that it was going to blow, that it was going to blow

tonight. The caller then hung up the phone.

3. Dispatcher Soroka works the midnight shift and has taken several

phone calls from Wolgast in the past. Cpl. Richards was advised that

the caller of the bomb threat sounded as [sic] the same as Wolgast.

4. Evidence: Copy of bomb threat, prior calls made by Wolgast and

radio/phone traffic between Central Dispatch and Cpl. Richards. It

should be noted that Wolgast calls into Central Dispatch numerous

times a month concerning loud music at Cross Roads Bar and Grill.

Cpl. Richards has listened to the prior calls made by Wolgast and the

1

The district court pointed out in a footnote that while the report states that the officers

arrived at 10:31 p.m., subsequent testimony indicated that there had been a typographical error. The

parties agree on this point.

3

actual bomb threat.2 Cpl. Richards believes the caller to be the same

on all the calls.

5. The suspect is Jeffrey Allen Wolgast, w/m, DOB: 11-14-56. Cpl.

Richards spoke to Wolgast at his residence, on 05-29-04. Wolgast

stated that he was out on a bicycle ride at the time the 911 call came

in, and had ridden his bicycle by Freels Market. Wolgast stated that

he did not make the bomb threat.

Police arrested Plaintiff on August 16, 2004, for violation of Michigan

Compiled Laws 750.411a, false report or threat of bomb, a felony carrying a

maximum punishment of four years in prison and a $2,000 fine. The county

dismissed the charge on September 28, 2004, the day on which the preliminary

examination was scheduled to take place, because, according to the Complaint, the

dispatchers could not identify Plaintiff’s voice.3

(ROA II 993-96.) (brackets in original, internal citations omitted).

In October 2005, Jeffrey Wolgast, pro se, filed this action alleging various federal

constitutional and state tort claims. In particular, Wolgast alleged federal constitutional violations

for retaliatory prosecution for his noise complaints, wrongful arrest, false imprisonment, and

conspiring to violate his civil rights. Wolgast also alleged state law claims for malicious prosecution

and intentional infliction of mental and emotional distress. Wolgast named as defendants the Tawas

Police Authority, Police Chief Dennis Frank, and officers Steven Parent and John Richards.

2

Richards contacted the Michigan State Police to do a voice comparison of the recordings,

but was informed that they do not perform that analysis. He contacted a private analyst who could

not do a voice analysis apparently because the samples did not contain ten separate words that could

be compared. (Record on Appeal, Volume II (“ROA II”) 89.) Richards did not ask Wolgast if he

would provide additional voice samples; he testified that he did not think Wolgast would provide

them. (ROA II 808.)

3

The September 2006 district court order stated that “[t]he case against the plaintiff was

dismissed at the preliminary examination because there was no evidence that the voice on the tape

recording of the threat call matched the plaintiff’s voice. (ROA II 464.)

4

Defendants filed a motion to dismiss/for summary judgment. The district court granted the

motion to dismiss as to the Police Authority and Chief Frank, and concluded that the state intentional

infliction and federal conspiracy claims against Officers Parent and Richards failed as a matter of

law. At this point, the remaining claims against Parent and Richards were the federal retaliation,

false imprisonment, and unlawful arrest claims, and state malicious prosecution claims.

The parties engaged in discovery and took depositions, after which Wolgast moved for

summary judgment and Parent and Richards filed a renewed motion for summary judgment. In

October 2007, the magistrate judge issued a report and recommendation focusing on the specific

factual assertions in the affidavit in support of the warrant application that Wolgast argued were

false. The magistrate judge recommended that all claims against Officer Parent be dismissed and

the claims against Officer Richards proceed. The district court adopted the result recommended by

the magistrate judge, although it rejected the magistrate judge’s conclusions with regard to some

factual assertions. In its April 2008 opinion, the district court denied Wolgast’s motion for summary

judgment, and granted the defense motion as to Officer Parent. With respect to Officer Richards,

the district court concluded that there were genuine fact issues regarding whether some of the

misstatements in the affidavit were made with reckless disregard for the truth. The court’s analysis

was as follows:

The report and recommendation focused on four alleged misstatements and

found that a factual dispute existed as to whether the misstatements included in the

affidavit were false. First, the affidavit stated that “[Wolgast] stated that he was out

on a bicycle ride at the time the 911 call came in, and had ridden his bicycle by

Freel’s Market.” Plaintiff denies that he drove by Freel’s, and Defendant Richards

acknowledged that Plaintiff did not state that he rode directly past Freel’s. Defendant

Richards contends that it is not a material misstatement because the inference is that

Plaintiff’s route took him into the vicinity of Freel’s. Though Defendant Richards

5

offers a reasonable explanation, the fact that he attributes that statement to Plaintiff

raises a triable issue of fact.

Additionally, the report indicated that Plaintiff stated that he returned home

20-25 minutes before the police arrived. Considering that the police arrived at 10:41

p.m. and the bomb threat was made at 10:26 p.m., the statement contained in

paragraph five of the affidavit, that Plaintiff was riding his bike at the time of the

bomb threat, is inaccurate. Defendant Richards contends that his subjective belief

that these statements were truthful indicates that he did not act with reckless

disregard for the truth. This ignores the fact that the affidavit directly attributed the

statements to Plaintiff.

Next, [Magistrate] Judge Binder concluded that the statement that Plaintiff

called dispatch numerous times a month, when in fact it appears that he called about

once a month, is immaterial. Though the dispute is unaddressed by Defendant, the

Court agrees with Judge Binder’s conclusion, that the difference between numerous

times a month and once a month, is an immaterial distinction.

Third, Judge Binder found that the inclusion of Defendant Richard[s’]

personal opinion that the voice on the bomb threat was the same as Plaintiff’s voice

established a factual dispute, because Defendant Richards compared the tape with

recordings of both Plaintiff and Plaintiff’s son. The Court disagrees with the

magistrate judge’s conclusion. Assuming that Defendant Richards listened to voice

exemplars from Plaintiff and Plaintiff’s son, there is no indication that his opinion

was intentionally or knowingly inaccurate. Furthermore, Plaintiff has not

demonstrated any evidence that the inclusion of Defendant Richards’ statement, that

he believed the voice on the 911 call to be that of Plaintiff, was made with reckless

disregard of the truth. As the magistrate judge noted, the possibility that Defendant

Richards listened to tapes of Plaintiff and Plaintiff’s son “reveals, at most . . . a

negligent voice identification technique.” Thus, Plaintiff has not met his burden

establishing a factual dispute with respect to this statement and the Court rejects the

magistrate judge’s recommendation.

Finally, Judge Binder found the statement concerning the dispatcher’s voice

identification of Plaintiff creates a triable issue, because impeachment evidence

exists that indicates the dispatcher believed that Plaintiff was not the caller. The

affidavit stated that “Dispatcher Soroka works the midnight shift and has taken

several phone calls from Wolgast in the past. Cpl. Richards was advised that the

caller of the bomb threat sounded [] the same as Wolgast[.”] Prior to the dispatcher’s

deposition, Plaintiff recorded the dispatcher stating that she did not believe that

Plaintiff was the caller at the time of the bomb threat. The dispatcher’s deposition

contradicted this assertion. The magistrate judge’s report discussed whether the

recorded statement, as impeachment evidence, is legally sufficient to create a triable

issue of fact.

Defendant Richards contends that this possible impeachment evidence is not

sufficient to survive summary judgment. Plaintiff has not indicated any admissible

evidence indicating that Defendant Richards[’] inclusion of the statement that

6

Dispatcher Soroka stated that the voice on the 911 call sounded like Plaintiff was

done with reckless disregard for the truth. Nor has Plaintiff demonstrated with

admissible evidence that the statement itself is not true. Thus, the Court disagrees

with the magistrate judge on this point.

Finally, Defendant Richards objected to the report and recommendation

contending the magistrate judge erred in finding that the alleged misstatements

discussed above establish a triable issue of fact. Though Plaintiff has a “heavy

burden” in establishing that the statements were made with reckless disregard for the

truth, the clear discrepancies between the affidavit and other admissible evidence

establish triable issues of fact. Though the Court disagrees with the magistrate

judge’s conclusions with [] respect to some statements included in the affidavit, the

Court does agree with Judge Binder’s ultimate conclusion that the affidavit’s

statements regarding the timing and route of Plaintiff’s bike ride reveal a genuine

issue of fact that the statements in the affidavit were made with reckless disregard for

the truth.

(ROA II 998-1001.) (internal citations omitted).

The court then reiterated, without explanation, the conclusion expressed in the opinion and

order denying Richards’ first motion for summary judgment: “if the offending provisions of the

affidavit are redacted, the remaining allegations do not establish probable cause to arrest, and no

reasonable officer could conclude otherwise.”4 (ROA II 1001.)

Richards timely appealed. Wolgast filed a motion to dismiss for lack of jurisdiction, which

was denied by a panel of this court on October 27, 2008, the order specifying that Wolgast could

renew his arguments.

4

In denying the first motion for summary judgment, the district court (Judge David Lawson)

noted the many questions of fact concerning whether the assertions in the affidavit were made with

knowledge of falsity or reckless disregard of the truth. The “offending provisions” referred to in the

initial decision would have included all the challenged statements.

7

DISCUSSION

I. JURISDICTION

Wolgast contends that because Richards’ arguments are fact based, this court lacks

jurisdiction. Courts of appeals have jurisdiction over final orders and appealable interlocutory orders

under 28 U.S.C. §§ 1291-92. Grawey v. Drury, 567 F.3d 302, 310 (6th Cir. 2009). In addition, this

court may review interlocutory orders denying qualified immunity, so long as the appeal raises legal

issues. See id. (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)); see also Moldowan v. City of

Warren, 578 F.3d 351, 370 (6th Cir. 2009) (this court’s jurisdiction is limited to resolving “pure

questions of law”); See v. City of Elyria, 502 F.3d 484, 490 (6th Cir. 2007) (district court’s

“determination that a given set of facts violates clearly established law is reviewable, while a

determination that an issue of fact is ‘genuine’ is unreviewable.”). Where a defendant’s qualified

immunity arguments on appeal rely exclusively on a disputed version of the facts, this court does not

have jurisdiction to consider the appeal. McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir.

2006).

This court’s lack of jurisdiction over factual issues is the basis for the requirement that a

defendant-appellant must “concede the most favorable view of the facts to the plaintiff for purposes

of the appeal.” Estate of Carter v. City of Detroit, 408 F.3d 305, 309-10 (6th Cir. 2005) (quoting

Berryman v. Rieger, 150 F.3d 516, 563 (6th Cir. 1998)). It follows that this court generally lacks

jurisdiction over a defendant’s argument that refuses to concede disputed facts to the plaintiff. See,

e.g., Everson v. Leis, 556 F.3d 484, 496-97 (6th Cir. 2009); Meals v. City of Memphis, Tennessee,

493 F.3d 720, 727 (6th Cir. 2007). However, if “aside from the impermissible arguments regarding

disputes of fact, the defendant also raises the purely legal question of whether the facts alleged . . .

8

support a claim of violation of clearly established law, then there is an issue over which this court

has jurisdiction,” Everson, 556 F.3d at 496 (quoting Kirby v. Duva, 530 F.3d 475, 481 (6th Cir.

2008)), and we “may simply ignore defendants’ attempts to dispute [a] plaintiff[’s] version of facts,

obviating the need to dismiss the entire appeal for lack of jurisdiction.” Id. (quotation marks

omitted).

Richards raises arguments on appeal that concern fact questions or are based upon facts in

dispute. Before this court, Richards presses three lines of argument: 1) that the district court’s

conclusion that there remained a genuine issue of fact whether Richards’ affidavit statements were

made with reckless disregard for the truth was in error, 2) that even if there were a fact issue as to

whether some of Richards’ statements were made with reckless disregard for the truth, other

information in the affidavit established probable cause, and 3) Richards is entitled to governmental

immunity on the state-law malicious prosecution claim. Because the determination whether a

statement made in an affidavit is made with reckless disregard for the truth is a fact question, United

States v. Rice, 478 F.3d 704, 709 (6th Cir. 2007), we are prevented from considering any of

Richards’ contentions in support of his first argument. We also cannot consider Richards’ arguments

that rely on disputed facts, like his being informed that Dispatcher Dawn Soroka thought the caller

was “Wolgast” by the caller’s voice, and Soroka’s familiarity with Wolgast’s voice based upon past

calls. We dismiss for lack of jurisdiction these impermissible fact-based arguments.

II. ANALYSIS

A. Applicable Law

1. Qualified Immunity

9

The defense of qualified immunity shields government officials performing discretionary

functions “insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). A court, viewing the facts in the light most favorable to the plaintiff, determines whether

1) the violation of a constitutional right occurred, and 2) the constitutional right at issue was clearly

established at the time of defendant’s conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled

in part on other grounds by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009); Grawey, 567 F.3d at

309. Courts have the discretion to decide which of the two Saucier prongs should be addressed first,

based on the circumstances of the case. Pearson, 129 S. Ct. at 818 (2009).

This court reviews the district court’s denial of qualified immunity de novo. Moldowan, 578

F.3d at 375. When a defendant raises qualified immunity as a defense, the plaintiff has the burden

to show that a constitutional right is clearly established; but, because qualified immunity is an

affirmative defense, the defendant must establish that the challenged act was objectively reasonable

in light of the law existing at the time. See Everson v. Leis, 556 F.3d at 494.

2. Constitutional Claims

The remaining federal constitutional claims against Richards are the First Amendment

retaliatory-prosecution claim and the Fourth Amendment false-imprisonment and unlawful-arrest

claims. The presence of probable cause would defeat each of these constitutional claims. See

Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009) (for a wrongful arrest claim to succeed under

§ 1983, plaintiff must prove that police lacked probable cause); Hartman v. Moore, 547 U.S. 250,

252 (2006) (“want of probable cause must be alleged and proven” to state actionable retaliatory

prosecution claim); Gumble v. Waterford Township, 171 F. App’x. 502, 507 (6th Cir. 2006)

10

(unpublished) (quoting Mark v. Furay, 769 F.2d 1266, 1269 (7th Cir. 1985) (“the existence of

probable cause for an arrest totally precludes any section 1983 claim for unlawful arrest, false

imprisonment, or malicious prosecution, regardless of whether the defendants had malicious motives

for arresting the plaintiff.”).

“Probable cause exists if the facts and circumstances known to the officer warrant a prudent

[person] in believing that the offense has been committed.” Brooks, 577 F.3d at 706 (6th Cir. 2009)

(quoting Henry v. United States, 361 U.S. 98, 102, (1959)). “A finding of probable cause does not

require evidence that is completely convincing or even evidence that would be admissible at trial;

all that is required is that the evidence be sufficient to lead a reasonable officer to conclude that the

arrestee has committed or is committing a crime.” Everson, 556 F.3d at 498-99 (citation omitted).

The existence of probable cause in a § 1983 action is generally a jury question, “unless there is only

one reasonable determination possible.” Id. at 499. But under § 1983, an officer is entitled to

qualified immunity if “he or she could reasonably (even if erroneously) have believed that the arrest

was lawful, in light of clearly established law and the information possessed at the time by the

arresting agent.” Id. (citation omitted).

Here, a neutral and detached magistrate made the decision that there was probable cause.

Such decisions generally insulate police officers from liability. See Hale v. Kart, 396 F.3d 721, 725

(6th Cir. 2005) (“In § 1983 actions, an officer ordinarily receives qualified immunity if he or she

relies on a judicially secured warrant.”). However, “an officer cannot rely on the judicial

determination of probable cause if that officer knowingly makes false statements and omissions” that

are necessary to find probable cause. See Yancey v. Carroll County, Ky., 876 F.2d 1238, 1243 (6th

Cir. 1989). As this court has explained,

11

An action under § 1983 does lie against an officer who obtains an invalid search

warrant by making, in his affidavit, material false statements either knowingly or in

reckless disregard for the truth. Donta v. Hooper, 774 F.2d 716, 718 (6th Cir.1985)

(per curiam), cert. denied, 483 U.S. 1019, 107 S. Ct. 3261, 97 L. Ed. 2d 760 (1987).

This standard originates in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.

Ed. 2d 667 (1978), a suppression case in which the Supreme Court defined the Fourth

Amendment’s guarantee in the context of search warrants issued on the basis of false

affidavits: only if “a false statement [was made] knowingly and intentionally, or with

reckless disregard for the truth” and if, “with the affidavit’s false material set to one

side, the affidavit’s remaining content is insufficient to establish probable cause,” is

there a constitutional violation under the Fourth Amendment. Id. at 155-56, 98 S. Ct.

at 2676.

Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989). Such statements undermine an otherwise valid

warrant application. See Burke v. Town of Walpole, 405 F.3d 66, 81-82 (1st Cir. 2005).

Accordingly, the warrant’s facial validity here is of little importance to the question of

Officer Richards’ liability. In this context, Wolgast must make a preliminary showing that Officer

Richards engaged in deliberate falsehood or reckless disregard for the truth in omitting information

from, or making false statements in, the affidavit. See Hale, 396 F.3d at 726 (omissions); Hill, 884

F.2d at 275 (false statements). If Wolgast succeeds, the court then considers whether, setting aside

the false material, the remaining content nevertheless establishes probable cause. Id.

B. Application

We accept the district court’s factual conclusion that Wolgast made the requisite showing

that Richards engaged in deliberate falsehood or reckless disregard for the truth. The district court

also found that if the offending provisions are redacted, the remaining allegations do not establish

probable cause and no reasonable officer could conclude otherwise. Richards challenges these

conclusions as incorrect as a matter of law.

12

After excising Richards’ problematic statements,5 and also ignoring content about which

there is a legitimate factual dispute, the remaining affidavit allegations are that 1) Wolgast called

Central Dispatch numerous times concerning loud music at the Crossroads, 2) Officer Richards

listened to Wolgast’s prior calls and to the actual bomb threat and “believe[d] the caller to be the

same on all the calls,”6 and 3) Richards interviewed Wolgast at his residence the day of the call

(where Wolgast said he did not make the bomb threat). Richards argues that his belief that the

bomb-threat caller sounded like Wolgast, based on his own knowledge of Wolgast’s voice, is

sufficient to establish probable cause, and asserts that the only reasonable determination is that the

remaining allegations of the affidavit are sufficient to lead a reasonable officer to conclude that

Wolgast committed a crime.7

5

Although Officer Parent is the official “affiant,” because Richards actually drafted the

affidavit information for Parent, Richards’ actions can be the source of a Fourth Amendment

violation. See, e.g., United States v. Brown, 298 F.3d 392, 408 (5th Cir. 2002) (“a deliberate or

reckless misstatement or omission by a government official who is not the affiant may nevertheless

form the basis of a Franks claim.”). At no point does Richards argue he is not liable on this basis.

6

It is worth clarifying that Richards does not purport to rely on his own comparison of

Wolgast’s prior calls with the bomb threat call as the only source for his voice identification. He

also cites Dispatcher Soroka’s purported identification of the bomb threat caller as someone who

“sounded [] the same as Wolgast.” However, we cannot consider Officer Soroka’s identification,

as it is the subject of factual dispute between the parties. See, e.g., McKenna, 469 F.3d at 561.

7

Richards also raised other arguments we will not address. They include that Richards’

probable cause conclusion was supported by the fact that Police Chief Frank also thought that the

caller’s voice sounded like Wolgast and the fact that none of the dispatchers who received the call

said that the caller did not sound like Wolgast, and that a reasonable officer in Richards’ position

could have reasonably, if mistakenly, thought that probable cause existed, as evidenced by the

opinions of Chief Frank, the prosecutor, and Richards’ previous co-defendant, Officer Parent, that

probable cause was established. These arguments are beyond the scope of our inquiry here, which

is necessarily limited to the content of the affidavit.

13

A credible voice identification can be sufficient to establish probable cause; a voice

identification based on little familiarity may not be. Compare Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.

1992) (though voice comparison can be a proper basis for establishing identity, no probable cause

where detective without expert training compared 60-second recording of plaintiff with recordings

of individual placing illegal bets with the same first name), with United States v. Brown, 510 F.3d

57, 67-68 (1st Cir. 2007) (in trial admissibility context, voice identification of law enforcement

officials who had transcribed hundreds of hours of tapes of defendant, and learned the distinct

manner in which he spoke, sufficiently reliable).

The district court simply stated its conclusions that the remaining allegations do not establish

probable cause to arrest and that no reasonable officer could conclude otherwise. It did not explain

its reasons for so concluding. One can speculate as to why the court may have made the probable

cause determination it did. For example, the court may have concluded that a voice identification

based on hearing Wolgast’s voice only a few times8 is insufficient in the face of the experts’ inability

to make a voice identification. It may also be that the district court simply failed to engage in a new

probable-cause inquiry, relying on the earlier decision without reevaluating that determination in

light of its other decisions on the renewed motion.

8

Richards never spoke with Wolgast on the phone. Although Richards did speak in person

with Wolgast, the probable cause affidavit represents only that Richards compared recordings of

Wolgast’s calls with the call at issue. Thus, he did not base the voice identification on personal

familiarity with Wolgast’s voice. These same recordings were given to the expert who was unable

to make an identification. The dispatcher’s voice identification was disputed. The court accepted

that Richards was told that the dispatcher had said that the voice sounded like Wolgast, but this

identification could also be seen as resting on infrequent and fleeting telephone interaction. Further,

it appears that Richards suggested to the dispatcher that Wolgast may have been the caller.

14

In any case, our review of this legal decision is de novo. It is also the case that we may affirm

on any ground supported by the record. See Dixon v. Clem, 492 F.3d 665, 673 (6th Cir. 2007). Thus

we need not explore further the absence of thorough analysis from the district court on this point.

Richards’ affidavit failed to provide any basis on which to measure the reliability of his claim that

he could identify the voice of the bomb-threat caller as Wolgast’s. It does not provide the number

or length of calls that Richards heard, the sound quality, or any other identifying features about the

phone lines or Wolgast’s voice. The lack of additional information to strengthen Richards’

unprofessional voice identification makes this case more like the situation in Ricci and less like that

in Brown. We affirm the district court’s conclusion on this point.

C. State Law Claims

Wolgast’s state-law malicious prosecution claim remains. Before the district court, Richards

argued that he was entitled to qualified governmental immunity because his conduct did not amount

to gross negligence. See Mich. Comp. Laws § 691.1407(2). The district court rejected this

argument, finding that Richards’ use in the affidavit of factually inaccurate statements that he

attributed to Wolgast “gives rise to the inference that Defendant Richards acted with gross

negligence when creating the affidavit.” (ROA II 1005.) Before this court, Wolgast again claims

he is entitled to immunity based on state law. However, for the first time, he raises another argument

– that the prosecutor’s exercise of independent discretion in initiating and maintaining a prosecution

is a complete defense to an action for malicious prosecution. See Matthews v. Blue Cross Blue

15

Shield of Michigan, 572 N.W.2d 603, 613 (Mich. 1998); Morningstar v. City of Detroit, 617 F.

Supp. 2d 570, 578 (E.D. Mich. 2009).9

With regard to the claim that the district court did consider, the court applied the wrong

standard. Section 691.1407(2) of the Michigan Compiled Laws, the provision that contains the

gross-negligence standard cited by the district court, does not apply to intentional torts, including

malicious prosecution. See Odom v. Wayne County, 760 N.W.2d 217, 223-24 (Mich. 2008); Miller

v. Sanilac County, 606 F.3d 240, 254 (6th Cir. 2010) (applying Odom’s holding in malicious

prosecution context). In 2008 the Michigan Supreme Court set out the governing standard: a

defendant establishes entitlement to individual governmental immunity by showing 1) the acts were

undertaken during the course of employment, and the employee was acting, or reasonably believed

that he was acting, within the scope of his authority, 2) the acts were undertaken in good faith, or

were not undertaken with malice, and 3) the acts were discretionary and not ministerial. Odom, 760

N.W.2d at 228. We vacate the relevant portion of the district court’s order and direct the court to

evaluate Richards’ governmental immunity claim under the Odom standard.

With regard to Richards’ prosecutorial-discretion defense, because the district court has not

yet had the opportunity to consider this argument, we will not evaluate it for the first time here.

9

We have jurisdiction to consider the district court’s denial of governmental immunity on the

remaining state law claim. See Marvin v. City of Taylor, 509 F.3d 234, 251 (6th Cir. 2007) (“we

have held repeatedly that, because the denial of governmental immunity is now a ‘final order’

providing defendants with an appeal of right to the Michigan Court of Appeals, this court has

jurisdiction over interlocutory appeals concerning pendent state law claims of governmental

immunity.”) (citation omitted).

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III. CONCLUSION

We DISMISS in part, VACATE in part, AFFIRM in part, and REMAND for further

proceedings consistent with this opinion.

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