Sykes v. Anderson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0349p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KIMBERLY SYKES, TEVYA GRACE

Plaintiffs-Appellees/Cross-Appellants, --

URQUHART,

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Nos. 08-2088/2090/

,

2118

>

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v.

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Defendants-Appellants/Cross-Appellees. -

DERRICK ANDERSON, CAROL NICHOLS,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

Nos. 05-71199; 05-73725—Nancy G. Edmunds, District Judge.

Argued: April 29, 2010

Decided and Filed: November 9, 2010

Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.*

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COUNSEL

ARGUED: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit,

Michigan, for Appellants. Mark Granzotto, MARK GRANZOTTO, P.C., Royal Oak,

Michigan, for Appellees ON BRIEF: Linda D. Fegins, CITY OF DETROIT LAW

DEPARTMENT, Detroit, Michigan, for Appellants. Mark Granzotto, MARK

GRANZOTTO, P.C., Royal Oak, Michigan, Julie H. Hurwitz, GOODMAN &

HURWITZ, P.C., Detroit, Michigan, Thomas M. Loeb, LAW OFFICE OF THOMAS

M. LOEB, Farmington Hills, Michigan, for Appellees.

*

The Honorable Thomas B. Russell, Chief United States District Judge for the Western District

of Kentucky, sitting by designation.

1

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 2

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OPINION

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KAREN NELSON MOORE, Circuit Judge. In 2004, the Michigan Court of

Appeals overturned Kimberly Sykes’s and Tevya Urquhart’s convictions for the state

crimes of “Larceny by Conversion” and “False Report of a Felony” on the grounds that

their convictions were based on mere “speculation” and “layers of impermissible

inferences.” After their release from prison, Sykes and Urquhart (“the Plaintiffs”)

brought 42 U.S.C. § 1983 actions against several Detroit police officers, asserting claims

of false imprisonment, malicious prosecution, and denial of due process. The Plaintiffs

also brought suit against the City of Detroit on the grounds that the City failed to respond

to citizen complaints and failed to train and supervise its employees. The district court

dismissed the claims against the City of Detroit prior to trial but submitted the remaining

claims to the jury. Ultimately, the jury returned a verdict in favor of the Plaintiffs on

three claims against two individual officers (“the Defendants”) and awarded the

Plaintiffs over $2.5 million in compensatory and punitive damages. The Defendants now

contest the district court’s denial of their motion for judgment as a matter of law and

appeal the damage award.

For the following reasons, we AFFIRM the judgment of the district court as to

the Plaintiffs’ claims of false arrest, malicious prosecution, and violations of due

process; we REMAND the case for the sole purpose of having the district court

articulate, in the first instance, an explanation for its denial of the Defendants’ motion

for remittitur; and we HOLD IN ABEYANCE the Plaintiffs’ cross-appeals in Case

Numbers 08-2090 and 08-2118, pending our review of the district court’s explanation

for the denial of the Defendants’ motion for remittitur.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 3

I. FACTS & PROCEDURE

A. Background Facts

On March 7, 2002, Sykes, Urquhart, and a third individual, Kimberly Holmes,

arrived at their place of employment, a Sprint PCS store, in Detroit, Michigan shortly

before 8:00 a.m. in order to open the store for business. As Urquhart disabled the alarm

and the three women entered the store, two men approached and forced their way into

the store’s foyer despite Sykes’s and Urquhart’s attempt to close and lock the door

behind them. Once inside, one of the men told the women to “shut the F up before

somebody get[s] shot” and revealed a gun that he had been concealing under his shirt.

Dist. Ct. Docket (“Doc.”) 256 (Urquhart Trial Test. at 151–52). The two men then

marched the women at gun point through the employee door to the back of the store

where they were ordered to lie on the floor. Urquhart testified that one of the robbers

“proceeded to say [that] one of [them] better get the F up and open up the safe door.”

Doc. 257 (Urquhart Trial Test. at 21). Urquhart, who was three months pregnant at the

time, was the only one who had the combination to open the safe. She was led at

gunpoint to the room where the safe was located and was ordered to enter the room and

remove the money contained inside the safe. In compliance with the armed robber’s

demand, Urquhart crossed the small room to the safe, “pulled out a money bag and [] slid

it across [the floor] to the man at the door.” Id. at 23. Retrieving the money bag, the

armed man then ordered Urquhart to “shut up and get back on the ground,” threatened

to “come back and shoot” the women if they tried to do anything, and closed the door

as he left. Id. at 26. The two robbers fled with approximately $27,000.

Within minutes of the perpetrators’ exit, Holmes and Sykes approached the room

containing the safe to check on Urquhart. When Urquhart rose from the floor to let

Holmes and Sykes into the safe room, she was hysterical and crying uncontrollably.

Sykes immediately called the police on her cellular phone. Still fearing that the robbers

would return, the women decided to “barricade” themselves “under the table” in the safe

room and wait for help. Id. at 33. During the ten-minute period that the women waited

for the police to arrive, Urquhart remained inconsolable. At one point, she briefly

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emerged from under the table, crawling a few feet to a trash receptacle positioned next

to the safe where she proceeded to spit up into the trash. Holmes also emerged from

under the “safe haven” of the table sometime after Urquhart returned, crawled to the

safe, opened the door, took out the remaining money bag, and then returned the money

bag to the safe. Id. Images of the robbery were captured on the store’s surveillance

cameras with the exception of several dead spots, i.e., locations that were outside of the

cameras’ view, which included the hallway where the women initially were forced to lie

down and the space underneath the table in the safe room.

When officers from the Detroit Police Department arrived on the scene,

Defendant Sergeant Carol Nichols, the officer in charge, and Officer Terrence Sims

began taking witness statements. Urquhart became increasingly agitated and extremely

emotional when Sgt. Nichols attempted to interview her in the room where the robbery

had just occurred and with the door closed. Sgt. Nichols testified that she found

Urquhart’s agitation suspicious and believed her to be “‘full of crap,’” Doc. 260 (Nichols

Trial Test. at 45) (quoting Nichols’s deposition), although Sgt. Nichols did recognize

that the interview took place in the same room where the pregnant Urquhart was held at

gunpoint less than two hours earlier. Urquhart ultimately required medical treatment at

the scene. Following Sgt. Nichols’s conversation with Urquhart, Urquhart signed a

written witness statement that Sgt. Nichols had drafted, providing Urquhart’s account

of the robbery. Both Sykes and Holmes also provided statements to the police at the

scene, and, as with Urquhart, Sgt. Nichols found Sykes’s statement suspicious, albeit for

ever-changing reasons. Sgt. Nichols and Officer Sims also interviewed the store’s

Assistant Manager, Deshawn Mallory, who confirmed that he had placed two money

bags in the safe the previous evening and that only one of them was missing.

During the ensuing police investigation, Sgt. Nichols began to suspect that the

robbery was an inside job and that the three women had staged the crime. In addition

to finding suspicious both Urquhart’s agitation at being interviewed and Sykes’s witness

statement, Sgt. Nichols also had uncovered that Holmes was a frequent gambler at a

local casino, which possibly supplied a motive. On March 11, 2002, Sgt. Nichols

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prepared a subpoena to serve on MotorCity Casino (“Casino”). Ten days later, on March

21, 2002, the Casino faxed to Sgt. Nichols’s attention at the police station Holmes’s

gaming records for the three days immediately following the robbery: March 8, March

9, and March 10. Those records indicated that Holmes’s “player’s card” was used to

gamble $23,116 at the Casino over those three days. Importantly, however, the Casino

cautioned in a disclaimer letter included with the gaming records that the amount of

money wagered with a player’s card was not reliable as to (1) the amount of money

wagered or (2) the identity of the gambler. The Casino further disclosed that the records

were estimates developed for marketing purposes and “would not establish in any

reliable manner the dates of attendance, gambling activities, or winnings or losses of a

player.” Doc. 231-7 (Casino Letter at 2).

Sgt. Nichols never received the Casino records because she had been replaced

as the officer in charge by Defendant Sergeant Derrick Anderson. It was thus Sgt.

Anderson who retrieved the fax. Despite the disclaimer letter on the front of the records

stating explicitly that the gaming records neither confirmed that Holmes had wagered

the amount listed nor that Holmes was actually even present at the Casino, Sgt.

Anderson conducted no further investigation. As the new officer in charge, Sgt.

Anderson and his partner, Police Investigator Maurice McClure, obtained the original

VHS video-surveillance tape from the Sprint PCS store and digitized the tape with the

help of the Michigan State Police Technical Services Unit so that the images could be

viewed in sequence.1 According to Sgt. Anderson, he viewed the tape numerous times.

Based on the evidence that both he and Sgt. Nichols had gathered, on April 27,

2002, Sgt. Anderson prepared an Investigator’s Report and sought authorization for an

arrest warrant for Sykes, Urquhart, and Holmes from Assistant Prosecuting Attorney,

Rita H. Lewis, at the Wayne County Prosecutor’s Office. In addition to his written

report detailing his investigation, Sgt. Anderson also submitted to Lewis the digitized

1

The Sprint PCS store’s security system is referred to as a “multiplex” time-lapse system. In

essence, multiple cameras placed throughout the store take various still photographs within seconds of each

other but do not record continuously, as a normal video camera would do. The tape must be

“demultiplexed” in order to view a continuous stream of ordered images.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 6

surveillance tape from the Sprint PCS store, all of the witness statements, the

Preliminary Complaint Report (“PCR”), and a list of potential witnesses. No one else

in the Detroit Police Department reviewed Sgt. Anderson’s request prior to its

submission to Lewis, thereby allowing to go undetected several flagrant

misrepresentations, exaggerations, and omissions of evidence that were key to

determining whether probable cause existed to believe that the Plaintiffs had committed

any crime. Lewis authorized the issuance of warrants for all three women, charging

them with “Larceny by Conversion” and “False Report of a Felony.” In her notes on

why probable cause existed to arrest and charge the women, Lewis reproduced several

of Sgt. Anderson’s misrepresentations of the evidence.

Armed with arrest warrants, Sgt. Anderson and Officer McClure arrested Sykes

at her home on May 11, 2002. Following Sykes’s arrest, Urquhart, now five-months

pregnant, turned herself in to the police. A state court conducted a preliminary

examination for Urquhart and Sykes on July 19 and July 23, 2002, at which time the

state court determined that probable cause existed to bind the Plaintiffs over for trial.

Sgt. Nichols was the only officer to testify at the hearing, and her testimony contained

at least two false statements that bore upon whether there was sufficient evidence to

prosecute. Urquhart and Sykes’s case proceeded to trial before a jury on October 7,

2002, during which both Sgt. Nichols and Sgt. Anderson testified on behalf of the State.

Because the prosecution’s principal theory of the case relied heavily on Holmes’s

gambling habit, the State called Sgt. Anderson to testify about the gaming records that

he had received from the Casino. Troublingly, Sgt. Anderson had failed to turn over the

gaming records to the Plaintiffs’ defense attorneys. Sgt. Anderson also never

revealed—to either the prosecution or the defense—that the gaming records had been

accompanied by a disclaimer letter, and in direct conflict with that letter, Sgt. Anderson

testified that the records established conclusively that Holmes had gambled

approximately the same amount of money taken in the robbery in the three days

following the robbery.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 7

A jury ultimately convicted Sykes and Urquhart on both counts. Sykes was

sentenced to three months in jail and three years of probation, and she was ordered to

pay restitution. People v. Sykes, No. 245079, 2004 WL 950129, at *1 (Mich. Ct. App.

May 4, 2004). Urquhart was sentenced to five months in jail on each count and three

years of probation. People v. Urquhart, No. 246001, 2004 WL 950062, at *1 (Mich. Ct.

App. May 4, 2004). Both were immediately imprisoned. More than one year after the

Plaintiffs’ convictions, Holmes pleaded nolo contendere, received probation, and was

ordered to pay restitution. The Michigan Court of Appeals overturned the Plaintiffs’

convictions on appeal. Detailing the meager quantity of evidence, the state appellate

court held that the convictions were not supported by anything other than mere

“speculation” and “impermissibly layered inferences.” Sykes, 2004 WL 950129, at *2,

*3; see Urquhart, 2004 WL 950062, at *2, *3.

B. District-Court Proceedings

Following her release from prison, Sykes filed suit in Wayne County Circuit

Court in March 2005 against six police officers involved in the investigation of the

robbery and the City of Detroit, alleging both state and federal-law violations in

connection with her arrest and prosecution. The action was removed to federal court.

Urquhart similarly filed suit in federal court in October 2005, and the cases were

consolidated. Together, the Plaintiffs alleged violations of the Fourth and Fourteenth

Amendments in light of their arrests and subsequent prosecutions, claiming that there

was an absence of probable cause. They also argued that they were denied due process

during their criminal trial because Sgt. Anderson withheld exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). In their claim against the City of

Detroit, the Plaintiffs asserted that the City was liable under 42 U.S.C. § 1983 for its

failure properly to train, monitor, direct, discipline and supervise its officers, specifically

referring to the City’s policy of having the same individual write and approve an

application for a warrant and its failure to respond adequately to citizen complaints

against its police officers.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 8

The Defendants filed their first motion for summary judgment in June 2006,

which the district court denied “without prejudice to [the] defendants’ right to seek

summary judgment after [the] plaintiffs have had an opportunity to conduct full

discovery.” Doc. 48 (Dist. Ct. Order at 5). In June 2007, the Defendants filed their

second motion for summary judgment. The district court denied the motion as untimely

and also held that the City’s motion failed on the merits because the City could not

demonstrate an absence of material fact relative to its municipal-liability claim when it

continually refused to comply with discovery orders related thereto. In November 2007,

the case was reassigned from Judge Friedman to Judge Edmunds. Following the

reassignment, Judge Edmunds sua sponte requested that the City of Detroit refile its

motion for summary judgment on the municipal-liability issue that Judge Friedman had

denied and then granted the City of Detroit’s motion for summary judgment as to all the

claims against it for failure to train or supervise its police officers and failure to respond

to citizen complaints. Extensive motion practice subsequently resulted in the dismissal

of several individually named police officers, and the case ultimately proceeded to trial

on February 5, 2008, against the following parties on the following claims: (1) Sykes’s

claim of false arrest against Sgt. Anderson,2 (2) Sykes’s and Urquhart’s claims of

malicious prosecution against Sgt. Anderson and Sgt. Nichols, and (3) Sykes’s and

Urquhart’s claims of due-process violations against Sgt. Anderson, Sgt. Nichols, and

Officer McClure.

Following trial, the jury found Sgt. Anderson liable for false arrest, malicious

prosecution, and the violation of the Plaintiffs’ due-process rights. The jury found Sgt.

Nichols liable for malicious prosecution, but found in favor of Officer McClure. The

jury awarded Sykes $1,063,000 in compensatory damages and $250,000 in punitive

damages, and Urquhart received a compensatory-damage award of $1,020,000 and

$250,000 in punitive damages. On March 20, 2008, the Defendants filed a motion for

judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and for

remittitur of the jury’s verdict, both of which the district court denied. The Defendants

2

Urquhart conceded that her claim for false arrest was time barred.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 9

timely appealed, and each Plaintiff filed a timely conditional cross-appeal challenging

the district court’s grant of summary judgment in favor of the City of Detroit, as well as

several of the district court’s evidentiary rulings.3

II. ANALYSIS

On appeal, the Defendants challenge the district court’s denial of their motion

for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). They

specifically allege that the district court erred in rejecting their claims that (1) they were

entitled to qualified immunity, (2) insufficient evidence supported the jury’s verdict as

to the false-imprisonment claim, (3) insufficient evidence supported the jury’s verdict

as to the malicious-prosecution claims, (4) insufficient evidence supported the jury’s

verdict as to the claims that the Plaintiffs’ due-process rights were violated as a result

of a Brady violation, (5) they were entitled to a new trial because the jury’s verdict was

unsupported by the evidence, (6) insufficient evidence supported an award of punitive

damages, and (7) they were entitled to remittitur because the damages award was clearly

excessive.

A. Qualified-Immunity Defense

The Defendants first argue that the district court erred in denying their Rule 50(b)

motion on qualified-immunity grounds. As the Plaintiffs correctly contend, however,

the Defendants have waived this claim by failing to raise the matter in their Rule 50(a)

motion prior to the district court’s submission of the case to the jury. Federal Rule of

Civil Procedure 50(a) allows a party to bring a motion for judgment as a matter of law

“at any time before the case is submitted to the jury.” Fed. R. Civ. P. 50(a)(2). If the

district court denies that motion and the case is submitted to the jury, “the movant may

file a renewed motion for judgment as a matter of law” within ten days after the entry

of judgment on the verdict. Id. 50(b). It is a “well-established proposition,” however,

“that a post-trial motion for judgment as a matter of law is not available at anyone’s

request on an issue not brought before the court prior to submission of the case to the

3

We hold these cross-appeals in abeyance.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 10

jury.” Ford v. County of Grand Traverse, 535 F.3d 483, 491 (6th Cir. 2008) (internal

quotation marks omitted); see also Fed. R. Civ. P. 50(b) (providing explicitly that a Rule

50(b) motion is a “renewed” Rule 50(a) motion).

In the instant case, the Defendants moved orally for judgment as a matter of law

under Rule 50(a), prior to the case’s submission to the jury, asserting only that the

evidence was insufficient to prove that the Defendants violated the Plaintiffs’ Fourth and

Fourteenth Amendment rights. Although the Defendants attempt to argue on appeal that

their Rule 50(a) argument necessarily included a claim of qualified immunity because

the sufficiency of the evidence is “inextricably intertwined” with qualified immunity, we

have rejected such an argument. See Ford, 535 F.3d at 493. Instead, in Ford v. County

of Grand Traverse, this circuit reaffirmed that while Rule 50 is not rigidly applied in all

circumstances, a pre-verdict motion and a post-verdict motion must be similar enough

to “provid[e] notice to the court and opposing counsel of any deficiencies in the

opposing party’s case prior to sending it to the jury,” thereby fulfilling the stated purpose

of the Rule. Id. at 492 (internal quotation marks omitted). Here, the Defendants’ oral

Rule 50(a) motion failed to provided the required notice. The Defendants never

mentioned “qualified immunity,” and they never referenced “clearly established law” or

“objectively unreasonable actions,” all of which are terms that might have put the court

and the Plaintiffs on notice as to the Defendants’ qualified-immunity claim.

To the extent that the instant case is distinguishable from Ford because the

Defendants did raise their qualified-immunity argument in their first unsuccessful

motion for summary judgment, that is a distinction without a difference. “[E]ven if a

defendant raises qualified immunity at summary judgment, the issue is waived on appeal

if not pressed in a Rule 50(a) motion.” Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008);

see also Fed. R. Civ. P. 50. The Defendants’ failure to make a pre-verdict motion for

judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity

precluded them from making a post-verdict motion under Rule 50(b) on that ground.

The qualified-immunity claim is waived.

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B. Standard of Review for Rule 50(b)

Unlike their claim for qualified immunity, the Defendants have properly

preserved their claims that the district court erred in denying their Rule 50(b) motion on

the jury’s findings of liability for (1) false arrest, (2) malicious prosecution, and

(3) violations of due-process related to the suppression of evidence under Brady v.

Maryland, 373 U.S. 83 (1963).

We review de novo the district court’s denial of the Defendants’ renewed motion

for a judgment as a matter of law. Radvansky v. City of Olmsted Falls, 496 F.3d 609,

614 (6th Cir. 2007). We “apply[] the same deferential standard as the district court,” and

may grant the motion “only if in viewing the evidence in the light most favorable to the

non-moving party, there is no genuine issue of material fact for the jury, and reasonable

minds could come to but one conclusion, in favor of the moving party.” Id. (internal

quotation marks omitted). We must not, in conducting our review, “reweigh the

evidence or assess the credibility of witnesses,” id, and our review is restricted to the

evidence that was admitted at trial. 9B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2540 (3d ed. 2008) (“When reviewing a district court’s grant

or failure to grant judgment as a matter of law, a court of appeals only may consider

evidence that was admitted at trial.”); Tschira v. Willingham, 135 F.3d 1077, 1088 (6th

Cir. 1998).

C. Unlawful-Arrest Claim

Sgt. Anderson challenges the jury’s verdict as to his liability for the unlawful

arrest of Sykes by arguing that no reasonable juror could have concluded that probable

cause to arrest Sykes was lacking. We disagree. “A false arrest claim under federal law

requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the

plaintiff.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005);

see also Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009). Because an arrest based on

a facially valid warrant approved by a magistrate provides a complete defense, Voyticky,

412 F.3d at 677, Sykes, in order to prevail on a false-arrest claim, was required to prove

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by a preponderance of the evidence that in order to procure the warrant, Sgt. Anderson

“knowingly and deliberately, or with a reckless disregard for the truth, made false

statements or omissions that create[d] a falsehood” and “such statements or omissions

[we]re material, or necessary, to the finding of probable cause.” Wilson v. Russo, 212

F.3d 781, 786–87 (3d Cir. 2000) (internal quotation marks omitted); see Vakilian v.

Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (citing Wilson with approval and noting that in

the § 1983 context “an officer or investigator cannot rely on a judicial determination of

probable cause if that officer knowingly makes false statements and omissions to the

judge such that but for these falsities the judge would not have issued the warrant”

(internal quotation marks and alteration omitted)); Hinchman v. Moore, 312 F.3d 198,

205–06 (6th Cir. 2002) (“Falsifying facts to establish probable cause to arrest and

prosecute an innocent person is of course patently unconstitutional”). If the affidavit

contains false statements or material omissions, we set aside the statements and include

the information omitted in order to determine whether the affidavit is still sufficient to

establish probable cause. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citing

Franks v. Delaware, 438 U.S. 154, 155–56 (1978)); Burleigh v. City of Detroit, 80 F.

App’x 454, 458 (6th Cir. 2003) (unpublished opinion) (“This alleged exaggeration of the

facts need not detain us, however, if other undisputed facts support the state court’s

probable cause determination.”); cf. United States v. Campbell, 878 F.2d 170, 171 (6th

Cir. 1989).

“‘Probable cause is defined as reasonable grounds for belief, supported by less

than prima facie proof but more than mere suspicion.’” United States v. McClain, 444

F.3d 556, 562 (6th Cir. 2005) (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th

Cir. 1993) (en banc)). To determine whether Sgt. Anderson had probable cause to arrest

Sykes, we consider the totality of the circumstances and whether the “facts and

circumstances” of which Sgt. Anderson had knowledge at the moment of the arrest were

“sufficient to warrant a prudent person . . . in believing . . . that” the seized individual

“ha[d] committed . . . an offense.” Hinchman, 312 F.3d at 204 (internal quotation marks

omitted). “The belief of guilt must be particularized with respect to the person to be . . .

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 13

seized.” United States v. Romero, 452 F.3d 610, 616 (6th Cir. 2006) (internal quotation

marks and alteration omitted).

In the instant case, a reasonable jury could have concluded that the evidence

introduced at trial showed that Sgt. Anderson deliberately made false or misleading

statements and omitted material information from his warrant application in order to

manufacture probable cause. Most strikingly, Sgt. Anderson’s warrant request made

several assertions as to what the store’s surveillance video revealed about the robbery

that were plainly misleading, if not entirely false. For example, Sgt. Anderson asserted

that although Urquhart “stated that she handed the perpetrator” a money bag from the

safe, she did not, in fact, “hand[]” the money bag “to the perpetrator.” Doc. 231-16

(Warrant Request at 3). Sgt. Anderson also claimed that “[t]he videotape . . . revealed

that Ms. Urquhart never had contact with the perpetrator in the safe room or at any time

during the robbery.” Id. Although those statements are not obviously false, they

certainly are misleading: the video shows Urquhart engage in movements indicating that

she “slid,” as opposed to “handed,” the money bag to the perpetrator, which Sgt.

Anderson did not acknowledge in his investigation materials; moreover, despite the fact

that the perpetrator never made physical “contact” with Urquhart, the video clearly

shows him standing in the doorway while Urquhart was forced to remove the money

bag.

In addition to these misleading statements, some of Sgt. Anderson’s claims were

simply false. For instance, although the warrant request stated that “Holmes was . . .

observed to remove [one] large money bag from the safe and toss it under the table

where [the] defendant’s [sic] Urquhart and Sykes were hiding” and that “Urquhart was

also observed to exit from under the table and place an item (possibly the money bag)

into the trashcan,” the video shows no such thing. Id. First, the video does not show

Holmes tossing anything under the table, let alone a bag of money, and, second, Sgt.

Anderson inexplicably misrepresented the chronological order of the video by stating

that Urquhart emerged from under the table to put something in the trash can after

Holmes had removed the money bag from the safe. In fact, however, the video time

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 14

stamps indicate that Urquhart emerged from under the table and crawled to the trash can

well before Holmes opened the safe.

In addition to making these material misstatements, Sgt. Anderson inexplicably

omitted perhaps the most probative evidence as to whether a robbery occurred—the

presence of the two armed men. His notes make no mention of the fact that the

videotape surveillance shows two men entering the store, thus corroborating Urquhart’s

and Sykes’s statements and account of the robbery. Instead, Sgt. Anderson stated that

the investigation revealed that “no robbery took place,” and that “the defendant’s [sic]

met in the parking lot . . . [to conspire] to commit larceny” prior to work and then met

“under a table in the safe room” to “divide[] the funds taken from the safe . . . by

defendant Holmes.” Id. But these conclusions are simply not supported by any of the

information available to Sgt. Anderson at the time he submitted his warrant application.

Confronted with this evidence, a reasonable jury could have concluded that Sgt.

Anderson deliberately made numerous misleading, if not patently false, statements and

omitted key information from the warrant application establishing that there really was

a robbery.

Disregarding Sgt. Anderson’s false and misleading statements and considering

his material omissions, the evidence plainly supports the jury’s finding that probable

cause was lacking. At the time Sgt. Anderson submitted his investigatory report and

warrant request to Assistant Prosecuting Attorney, Rita H. Lewis, at the Wayne County

Prosecutor’s Office, his investigation merely revealed the following: On the morning

of the robbery, two men entered the Sprint PCS store behind Sykes, Urquhart, and

Holmes and forced them toward the back. Although the robbers never fully entered the

room with the safe, one of them stood in the doorway and had Urquhart open the safe

and slide a money bag to him, and then ordered Urquhart to the ground. Following the

robbery, Sykes called the police on her cellular phone, and the Plaintiffs sat under a table

in the safe room, which was out of the camera’s view, to wait for police. Holmes opened

the safe at some point, and removed a money bag. The video does not readily show what

she did with the money bag, but witness statements taken at the scene revealed that only

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one of the two money bags originally in the safe was missing, which necessitates the

conclusion that Holmes replaced the money bag that she briefly handled following the

robbery and could not have thrown it under the table. Sgt. Anderson also had discovered

that Holmes liked to gamble, and that her player’s card had been used in the days

following the robbery to wager an amount that approximated the amount stolen. But he

also knew that the fact that Holmes’s player’s card had been used was not evidence that

Holmes, in fact, used it, or that the dollar amounts were accurate.

This evidence simply cannot support a finding of probable cause to believe that

Sykes was involved in the robbery. Her behavior was entirely consistent with being the

victim of a robbery and not incriminating in the least.4 As the Michigan Court of

Appeals aptly concluded, there is simply no particularized evidence connecting Sykes

to the robbery other than Sykes’s mere presence at the scene of the crime, see Sykes,

2004 WL 950129, at *2, and mere presence is not sufficient to meet the probable-cause

threshold. Harris v. Bornhorst, 513 F.3d 503, 515 (6th Cir.), cert. denied, 128 S. Ct.

2938 (2008) (“[I]t is well-established that an individual’s mere presence at a crime scene

does not constitute probable cause for an arrest.”). Even if Sgt. Anderson was ultimately

correct in his conclusion that the robbery was an inside job, there was absolutely no

evidence indicating that Sykes herself had knowledge of the plan or otherwise

committed a crime at the time he sought his warrant. “Speculation does not equate

probable cause,” United States v. McClain, 444 F.3d 556, 563 (6th Cir. 2005), and “no

reasonabl[y] competent officer” would have concluded on these facts that probable cause

existed. Malley v. Briggs, 475 U.S. 335, 341 (1986).

In short, we affirm the judgment of the district court as to Sykes’s claim of false

arrest because probable cause was lacking at the time Sgt. Anderson submitted a warrant

4

Although “a subjective belief by the arresting officer cannot destroy probable cause where it

exists,” United States v. Harness, 453 F.3d 752, 754 (6th Cir. 2006) (internal quotation marks omitted),

it is telling that the investigating officers admitted that they had nothing more than “inarticulable hunches”

that the store employees were involved in the robbery. Doc. 260 (Nicohols Trial Test. at 60); see also Doc.

261 (McClure Trial Test. at 85) (indicating that the officers’ “conclusions [we]re just based on opinion,

hunch, whatever you want to call it and that’s what was presented to the prosecutor’s office”); Doc. 237

(Anderson Trial Test. at 14–15) (“[It was] just my belief.”).

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 16

application for Sykes, and Sgt. Anderson cannot rely on the warrant’s facial validity

because it contains his deliberate material misrepresentations and omissions.

D. Malicious-Prosecution Claim

Sgt. Anderson and Sgt. Nichols next appeal their liability for malicious

prosecution on two bases: (1) no reasonable jury could have concluded that they lacked

probable cause to arrest the Plaintiffs, and (2) because Sgt. Anderson and Sgt. Nichols

did not make the decision to prosecute, the Plaintiffs’ claims fail for lack of causation.

1. Elements of a Malicious-Prosecution Claim

The Sixth Circuit “recognize[s] a separate constitutionally cognizable claim of

malicious prosecution under the Fourth Amendment,” which “encompasses wrongful

investigation, prosecution, conviction, and incarceration.” Barnes v. Wright, 449 F.3d

709, 715–16 (6th Cir. 2006) (internal quotation marks omitted). The “tort of malicious

prosecution” is “entirely distinct” from that of false arrest, as the malicious-prosecution

tort “remedies detention accompanied not by absence of legal process, but by wrongful

institution of legal process.” Wallace v. Kato, 549 U.S. 384, 390 (2007) (internal

quotation marks omitted). Neither the Supreme Court nor the Sixth Circuit has yet

articulated the elements of a Fourth Amendment malicious-prosecution claim under

42 U.S.C. § 1983 with any specificity, Wallace, 549 U.S. at 390 n.2; Briner v. City of

Ontario, 370 F. App’x 682, 701 (6th Cir. 2010) (unpublished opinion), but because

exploration of the showing required under federal law is necessary to resolve the instant

case, we do so now.

To succeed on a malicious-prosecution claim under § 1983 when the claim is

premised on a violation of the Fourth Amendment, a plaintiff must prove the following:

First, the plaintiff must show that a criminal prosecution was initiated against the

plaintiff and that the defendant “ma[d]e, influence[d], or participate[d] in the decision

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 17

to prosecute.”5 Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007); see also McKinley v.

City of Mansfield, 404 F.3d 418, 444 (6th Cir. 2005); Darrah v. City of Oak Park, 255

F.3d 301, 312 (6th Cir. 2001); Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th

Cir. 2002). Second, because a § 1983 claim is premised on the violation of a

constitutional right, the plaintiff must show that there was a lack of probable cause for

the criminal prosecution, Fox, 489 F.3d at 237; Voyticky, 412 F.3d at 675. Third, the

plaintiff must show that, “as a consequence of a legal proceeding,” the plaintiff suffered

a “deprivation of liberty,” as understood in our Fourth Amendment jurisprudence, apart

from the initial seizure. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007); see Gregory

v. City of Louisville, 444 F.3d 725, 748–50 (6th Cir. 2006) (discussing the scope of

“Fourth Amendment protections . . . beyond an initial seizure,” including “continued

detention without probable cause”); cf. Heck v. Humphrey, 512 U.S. 477, 484 (1994)

(“[U]nlike the related cause of action for false arrest or imprisonment, [an action for

malicious prosecution] permits damages for confinement imposed pursuant to legal

process.”). Fourth, the criminal proceeding must have been resolved in the plaintiff’s

favor. Heck, 512 U.S. at 484 (“One element that must be alleged and proved in a

malicious prosecution action is termination of the prior criminal proceeding in favor of

the accused.”).

This circuit has never required that a plaintiff demonstrate “malice” in order to

prevail on a Fourth Amendment claim for malicious prosecution, and we join the Fourth

Circuit in declining to impose that requirement. See Brooks v. City of Winston-Salem,

85 F.3d 178, 184 n.5 (4th Cir. 1996). The circuits that require malice have imported

elements from the common law without reflecting on their consistency with the

overriding constitutional nature of § 1983 claims. See Manganiello v. City of New York,

612 F.3d 149, 160–61 (2d Cir. 2010) (requiring a Fourth Amendment violation plus each

element of the applicable state’s law); McKenna v. City of Philadelphia, 582 F.3d 447,

461 (3d Cir. 2009) (requiring malice); Lassiter v. City of Bremerton, 556 F.3d 1049,

5

The meaning of the term “participated” should be construed within the context of tort causation

principles. Its meaning is akin to “aided.” To be liable for “participating” in the decision to prosecute,

the officer must participate in a way that aids in the decision, as opposed to passively or neutrally

participating.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 18

1054 (9th Cir. 2009) (same); Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)

(same); Grider v. City of Auburn, 618 F.3d 1240, 1256 & n.24 (11th Cir. 2010) (same).

Common-law and § 1983 claims have different foundations. As the Supreme Court

explained in Albright v. Oliver, “the constitutional tort 42 U.S.C. § 1983 authorizes

stands on its own, influenced by the substance, but not tied to the formal categories and

procedures, of the common law.” 510 U.S. 266, 277 n.1 (1994) (Ginsburg, J.,

concurring); see also Carey v. Piphus, 435 U.S. 247, 258 (1978) (requiring courts to

“adapt[] common-law rules of damage” when adjudicating § 1983 cases because “the

interests protected by a particular constitutional right may not also be protected by an

analogous branch of the common law torts”); Pierce v. Gilchrist, 359 F.3d 1279,

1285–90 (10th Cir. 2004) (McConnell, J.) (“rejecting the view that a plaintiff does not

state a claim actionable under § 1983 unless he satisfies the requirements of an

analogous common law tort”). This court recognized the difference in Frantz v. Village

of Bradford, in which we “h[e]ld that Albright precludes reliance on state law to define

a § 1983 federal cause of action” and “reject[ed] the reasoning of courts which have

relied on the state law elements of malicious prosecution.” 245 F.3d 869, 874–75 (6th

Cir. 2001), abrogated as recognized by Thacker v. City of Columbus, 328 F.3d 244, 259

(6th Cir. 2003); see also Darrah, 255 F.3d at 311–12 (confirming that this language in

Frantz survived abrogation).

In the context of malicious prosecution, the Fourth Amendment violation that

generates a § 1983 cause of action obviates the need for demonstrating malice. “For

instance, if the harm alleged is a seizure lacking probable cause, it is unclear why a

plaintiff would have to show that the police acted with malice.” Gallo v. City of

Philadelphia, 161 F.3d 217, 222 n.6 (3d Cir. 1998). In fact, Fourth Amendment

jurisprudence makes clear that we should not delve into the defendants’ intent. “[T]he

reasonableness of a seizure under the Fourth Amendment should be analyzed from an

objective perspective,” which, even in the context of malicious-prosecution claims,

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 19

renders “irrelevant” “the subjective state of mind of the defendant, whether good faith

or ill will.” Brooks, 85 F.3d at 184 n.5.6

We recognize that “designating the constitutional claim as one for ‘malicious

prosecution’ is both unfortunate and confusing. A better name that would perhaps grasp

the essence of this cause of action under applicable Fourth Amendment principles might

be ‘unreasonable prosecutorial seizure.’” Frantz, 245 F.3d at 881 (Gilman, J., dissenting

on other grounds to a holding that was abrogated by Darrah, 255 F.3d at 311–12). Still,

we are “stuck with that label,” id., and we conclude that malice is not an element of a

§ 1983 suit for malicious prosecution.7

For the reasons explained below, we conclude that a reasonable jury could have

found the Defendants liable for malicious prosecution. In the instant case, there was not

only a lack of probable cause to institute a criminal proceeding against the Plaintiffs, but

the Defendants’ actions in this case were sufficient to qualify as either “influence [over]

or participat[ion] in the decision to prosecute” regardless of the fact that the Defendants,

themselves, did not make the ultimate decision. Fox, 489 F.3d at 237.

6

Pierce, which expressed no opinion on whether malice is an element, suggested in a footnote

that malicious-prosecution liability for falsifying or omitting evidence might attach only if an officer acts

“knowingly and intelligently, or with reckless disregard for the truth.” 359 F.3d at 1297 n.12 (quoting

Franks v. Delaware, 438 U.S. 154, 155–56 (1978)). Franks applies only when a criminal defendant

challenges a warrant affidavit. 438 U.S. at 164–65. Its logic cannot justify a freestanding malice element

for all malicious-prosecution claims against all defendants. Moreover, in the context to which Franks does

apply, a malice-type element would be superfluous. Franks is relevant to malicious prosecution only to

determine whether, in the absence of a bad-faith misrepresentation, probable cause still would have

existed. When an officer is sued for malicious prosecution stemming from false but good-faith statements

in a warrant affidavit, the officer will prevail even without a malice element because of Franks. Thus,

Franks does not provide a reason to depart from the general Fourth Amendment principle that motive is

irrelevant.

7

In this case, the jury was instructed that the Plaintiffs were required to prove that: (1) “a criminal

proceeding was commenced against Plaintiffs,” (2) the “Defendants commenced or continued the criminal

proceeding against Plaintiffs,” (3) “the criminal proceeding ended in favor of Plaintiffs,” (4) “the criminal

proceeding was commenced or continued by Defendants without probable cause,” (5) the “Defendants

acted with malice,” and (6) the “Plaintiffs were damaged by the criminal proceeding.” Doc. 186-5 (Jury

Instructions at 10); Doc. 265 (Oral Jury Instructions at 35). The jury instructions thus improperly required

a showing of malice, but that error is harmless because the jury found in favor of the Plaintiffs on their

claim of malicious prosecution despite the erroneously stringent standard.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 20

2. No Probable Cause to Initiate Criminal Proceedings8

The Defendants first claim that they had probable cause to arrest the Plaintiffs,

and they argue that this fact necessarily defeats the instant malicious-prosecution claim.

In order to distinguish appropriately this claim from one of false arrest, we must consider

not only whether the Defendants had probable cause to arrest the Plaintiffs but also

whether probable cause existed to initiate the criminal proceeding against the Plaintiffs.

See, e.g., Fox, 489 F.3d at 237 (“What is certain . . . is that [a malicious prosecution]

claim fails when there was probable cause to prosecute . . .” (emphasis added)); Barnes,

449 F.3d at 716 (“[T]he defendants had probable cause to seek an indictment against [the

plaintiff].” (emphasis added)).

We have already concluded that the Defendants lacked probable cause to arrest

Sykes, and the Defendants have pointed to no evidence uncovered subsequent to Sykes’s

arrest that would call into question the jury’s belief that there was no probable cause to

initiate criminal proceedings against her. Turning to Urquhart, we similarly conclude

that probable cause to arrest and prosecute was lacking. As outlined above, apart from

inviting pure speculation as to the Plaintiffs’ potential involvement, the facts revealed

by the surveillance video from the Sprint PCS store provided no reasonable ground for

the belief that Urquhart was a perpetrator of the robbery, as opposed to its victim. To

the extent that the Defendants assert that Urquhart’s behavior at the time Sgt. Nichols

interviewed her provides support for a finding of probable cause, we wholly disagree.

It bears repeating that at the time that Sgt. Nichols asked Urquhart to provide a

statement, only two hours had passed since the robbery. Urquhart was visibly shaken

and required medical treatment. Moreover, Urquhart was pregnant at the time of the

robbery and had been the victim of a home invasion just days earlier, and Sgt. Nichols

was aware of these facts. A reasonable jury could have found that any one of these

factors explained and justified Urquhart’s amplified agitation and displeasure with

8

Because the Plaintiffs’ malicious-prosecution claim “is based on a police officer’s supplying

false information to establish probable cause,” the determination of probable cause that the state court

made at the Plaintiffs’ preliminary hearing does not carry preclusive effect in the instant case. Peet, 502

F.3d at 566 (citing Hinchman, 312 F.3d at 202–03).

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 21

having to remain at the scene to speak with police. Mere disinterest in speaking with an

officer under the circumstances here is not sufficient to meet the probable-cause

threshold. Furthermore, as with Sykes, the Defendants have failed to point to any

untainted and truthful post-arrest evidence bearing upon whether there was probable

cause to institute a criminal proceeding against Urquhart.

Contrary to the Defendants’ claim, viewing the totality of the circumstances at

the time of the Plaintiffs’ arrest and through the time that the criminal proceeding against

them commenced, a reasonable jury could have concluded that there was no probable

cause to believe that either Sykes or Urquhart had committed any crime.

3. Defendants Influenced Decision to Prosecution

The Defendants further claim that they cannot be held liable for malicious

prosecution because they did not make the decision to prosecute the Plaintiffs. There is

very little case law in this circuit discussing precisely what role an investigating officer

must play in initiating a prosecution such that liability for malicious prosecution is

warranted, but existing cases do indicate that an officer may be responsible for

commencing a criminal proceedings against a plaintiff, where the officer “ma[d]e,

influence[d], or participate[d] in the decision to prosecute.” Fox, 489 F.3d at 237. Thus,

contrary to the Defendants’ assertion, the fact that they did not make the decision to

prosecute does not per se absolve them from liability. Instead, the Plaintiffs were

entitled to prove that the Defendants either “influence[d ] or participate[d] in the

decision to prosecute.” Id.9 Because Sgt. Nichols and Sgt. Anderson played distinct

roles in the process, we analyze their actions separately in order to determine whether

the Plaintiffs have met their burden with respect to this element.

9

Whether an officer influenced or participated in the decision to prosecute hinges on the degree

of the officer’s involvement and the nature of the officer’s actions. See Malley v. Briggs, 475 U.S. 335,

344–45 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)) (construing § 1983 “against the

background of tort liability,” in which people are responsible for “natural consequences” of their acts).

The totality of the circumstances informs this fact determination.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 22

Sgt. Nichols’s Testimony at the Plaintiffs’ Preliminary Hearing. The Plaintiffs’

claim of malicious prosecution against Sgt. Nichols is predicated on two

misrepresentations that she made during her sworn testimony at the preliminary hearing

where the decision was made to bind the Plaintiffs over for trial. It is well established

in this circuit that “[p]olice officers cannot, in good faith, rely on a judicial determination

of probable cause [to absolve them of liability] when that determination was premised

on an officer’s own material misrepresentations to the court.” Gregory v. City of

Louisville, 444 F.3d 725, 758 (6th Cir. 2006). This means that in order to establish that

a testifying officer was responsible for commencing a criminal proceeding for purposes

of a malicious-prosecution claim, the Plaintiffs were required to present evidence that

Nichols “(1) stated a deliberate falsehood or showed reckless disregard for the truth [at

the hearing] and (2) that the allegedly false or omitted information was material to the

[court’s] finding of probable cause.” Id.; see Molnar v. Care House, 359 F. App’x 623,

627 (6th Cir. 2009) (unpublished opinion) (“Even accepting [the] allegation that [the

officer] ‘knowingly supplied the magistrate with false information,’ Darrah, 255 F.3d

at 311, the state court did not rely on her testimony to establish probable cause.”).

Based on the evidence in the instant case, a reasonable jury could have concluded

that Sgt. Nichols testified falsely at the preliminary hearing and that her statements were

material to the state court’s finding of probable cause. First, the evidence before the jury

revealed that Sgt. Nichols—the only officer called to testify at the preliminary

hearing—testified that the video-surveillance evidence contradicted Urquhart’s witness

statement and account of the robbery when, in fact, Urquhart’s statement was entirely

consistent with that evidence.10 A reasonable jury could have found not only that Sgt.

Nichols’s statement amounted to false testimony but also that it was material to the state

10

Specifically, Sgt. Nichols testified at the preliminary hearing that Urquhart told her that the

“‘gunman took her into the room where the safe was, and then held her at gunpoint and told her to open

the safe and give him the money.’” Doc. 288 (Nichols Trial Test. at 84) (quoting testimony from

preliminary hearing). Sgt. Nichols then claimed that Urquhart’s statement was not supported by the video

evidence because at no point did the gunman go into the safe room with Urquhart. On cross-examination

in the instant case, however, Sgt. Nichols admitted that “[t]here [wa]s nothing in [Urquhart’s] witness

statement that even suggest[ed] that [the perpetrator] accompanied her into the safe room at gunpoint.”

Id. at 89. Sgt. Nichols further admitted that by testifying that Urquhart’s statements were not supported

by the evidence, she had “not recall[ed] correctly” at the preliminary hearing notwithstanding the fact that

she held Urquhart’s witness statement in her hand while testifying at the preliminary hearing. Id.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 23

court’s determination that there was probable cause to bind the Plaintiffs over for trial.

Had Sgt. Nichols testified that Urquhart’s account of the robbery was entirely consistent

with the video evidence, Sgt. Nichols’s truthful statement might have resulted in a

conclusion that there was insufficient evidence to bind the Plaintiffs over for trial. Cf.

United States v. Wallace, 597 F.3d 794, 801 (6th Cir. 2010) (noting in the context of a

perjury charge that “a false declaration satisfies the materiality requirement if a truthful

statement might have assisted or influenced . . . the [court] in its investigation.” (internal

quotation marks and alteration omitted)). Consistency between an alleged perpetrator’s

statement and the remaining evidence in a case is certainly relevant to determining not

only whether the alleged perpetrator was involved in criminal activity but also the

credibility of the alleged perpetrator’s repeated exclamations of innocence. Cf. United

States v. Rose, 889 F.2d 1490, 1493 (6th Cir. 1989) (indicating that a police officer’s

discovery of “evidence contradicting the [alleged perpetrator’s] previous statements”

could “elevat[e] the agent’s suspicion to probable cause”). In fact, the materiality of Sgt.

Nichols’s false testimony in determining whether there was probable cause to prosecute

is highlighted by the prosecutor’s reliance on the alleged discrepancy between

Urquhart’s statement and the video evidence when the prosecutor argued at the

preliminary hearing that probable cause existed to believe that the Plaintiffs were

involved in the robbery: “‘Not only does [Urquhart] say in [her] statement that she

handed the bag to this alleged armed robber, her statement makes it sound like there’s

an armed robber in the room with her.’” Doc. 288 (Nichols Trial Test. at 90–91)

(quoting prosecutor’s closing argument at the preliminary hearing).

The second falsehood that the Plaintiffs highlight is Sgt. Nichols’s testimony at

the preliminary hearing that Sykes’s and Urquhart’s witness statements were suspicious

because they were too similar. As the Plaintiffs revealed to the jury in the instant case,

however, Sgt. Nichols later testified that Sykes’s and Urquhart’s witness statements were

actually not similar, but were suspicious because they were so different.11 Again, a

11

In the instant case, Sgt. Nichols testified in response to the Plaintiffs’ questions about her

testimony at the preliminary hearing as follows:

Q: Do you remember being asked at the preliminary exam what evidence you had to

support your suspicion that Ms. Sykes and Ms. Urquhart were guilty of this crime?

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 24

reasonable jury could have concluded that Sgt. Nichols’s statements amounted to false

testimony. Given that she was the only officer to testify at the preliminary hearing, a

reasonable jury likewise could have found that Sgt. Nichols’s misrepresentations of the

facts regarding not only the evidence in the case but also the credibility of the suspects

were material to the state court’s decision to bind the Plaintiffs over for trial. As a result,

we have no trouble concluding that a reasonable jury could have found that Sgt. Nichols

influenced or participated in the decision to prosecute and that her false testimony was

thus one cause of the commencement of the criminal proceedings against the Plaintiffs.12

Sgt. Anderson’s Investigatory Materials. Turning to Sgt. Anderson, the

Plaintiffs predicate his liability on his affirmative misrepresentations and omissions in

his arrest-warrant application and investigative report. This circuit has had few

opportunities to address the nexus between an officer’s statements in his or her

...

A: . . . [Y]es, I do.

Q: Do you remember the reason that you gave was because their statements were the

same?

A: I remember saying that, yes.

Q: And that was basically the only reason, wasn’t it, for your suspicion of Ms. Sykes?

A: Their statements were the same.

Q: So if I understand—let me back up. You testified at the criminal trial as well,

didn’t you?

A: I did.

Q: You were asked that same question, weren’t you?

A: I was.

Q: You gave the exact opposite answer, didn’t you?

A: I said there were some discrepancies.

Doc. 260 (Nichols Trial Test. at 94–95).

12

The Defendants argued in their briefs and at oral argument that no reasonable jury could have

concluded that Sgt. Nichols’s statements were material to a finding of probable cause because “[w]hile

under cross examination by the defense” at the preliminary hearing, Sgt. Nichols conceded that she had

made misleading or false statements. Appellant Br. at 50. Given that “[t]he judge was aware of the

purported alleged discrepancy of [Sgt. Nichols’s] testimony,” the Defendants claim that it would be

incongruous to conclude that the state court then relied on those falsehoods to bind the Plaintiffs over for

trial. Appellant Br. at 51.

Although we are sympathetic to Sgt. Nichols’s assertion on appeal, we remind the Defendants

that our task on review is to consider whether the evidence before the jury at the time of trial is sufficient

to sustain its verdict. See, e.g., Tschira, 135 F.3d at 1088 (“Based on the evidence presented at trial, the

district court did not commit error in denying Appellants’ Rule 50(b) motion.” (emphasis added)). Despite

the fact that Sgt. Nichols attached to her Rule 50(b) motion excerpts from her preliminary-hearing

testimony that indicated that the state court was aware of her false testimony, our review of the trial

transcripts indicates that the preliminary-hearing transcript was never submitted to the jury in the instant

case. Counsel’s failure to submit this very relevant, indeed dispositive, evidence to the jury is

questionable, at best. But because we review whether sufficient evidence supported the jury’s verdict by

looking at the evidence that the jury actually had before it, we must disregard the excerpts from Sgt.

Nichols’s preliminary-hearing testimony that were not presented to the jury.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 25

investigatory materials and the institution of a criminal prosecution sufficient to sustain

a claim for malicious prosecution. It is absolutely clear, however, that an officer will not

be deemed to have commenced a criminal proceeding against a person when the claim

is predicated on the mere fact that the officer turned over to the prosecution the officer’s

truthful materials. McKinley, 404 F.3d at 444; Skousen, 305 F.3d at 529; Wysong v. City

of Heath, 377 F. App’x 466, 470 (6th Cir. 2010) (unpublished opinion); Kinkus v.

Village of Yorkville, Ohio, 289 F. App’x 86, 91 (6th Cir. 2008) (unpublished opinion)

(holding that the officer played no role in the prosecution because the “police report

[provided to the prosecutor] did not contain false information”).

As discussed above in the context of Sykes’s false-arrest claim, however, Sgt.

Anderson’s liability is not premised on his disclosure of truthful investigatory materials.

The matter that we must resolve, then, is whether Sgt. Anderson’s falsehoods,

misrepresentations, and omissions, which clearly led to the Plaintiffs’ arrests, can

survive a number of intervening decisions by others such that Sgt. Anderson can still be

said to have influenced or participated in the decision to institute criminal proceedings.

Considering causation broadly, as the Plaintiffs urge, it certainly was Sgt. Anderson’s

arrest that started the chain of events that ultimately led to the prosecutor’s decision to

proceed with the criminal charges against the Plaintiffs.13 Looking at causation more

narrowly, Sgt. Anderson reasonably could have foreseen that by providing false

information to the prosecutor that bore directly on whether there was probable cause to

believe that the Plaintiffs committed a crime, his misconduct could result in not only the

Plaintiffs’ initial seizure but also their eventual incarceration. And holding Sgt.

Anderson liable for all reasonably foreseeable consequences of his initial misdeeds finds

support in the Supreme Court’s decision in Malley v. Briggs, 475 U.S. 335 (1986). In

Malley, the Supreme Court made clear that normal causation principles apply to

42 U.S.C. § 1983 actions by stating that if an “officer caused [a] plaintiff[] to be

unconstitutionally arrested by presenting a judge with a complaint and a supporting

13

As we have noted elsewhere, under “Michigan law . . . a criminal prosecution ‘is initiated in

the sole discretion of the prosecutor.’” Moldowan v. City of Warren, 578 F.3d 351, 400 (6th Cir. 2009)

(quoting Matthews v. Blue Cross & Blue Shield, 572 N.W.2d 603, 610 (Mich. 1998)).

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 26

affidavit [that] failed to establish probable cause,” id. at 337, it is “clear” that the

argument that “the officer should not be liable because the judge’s decision to issue the

warrant breaks the causal chain between the application for the warrant and the

improvident arrest” would be “inconsistent with [its] interpretation of § 1983,” id. at 344

n.7. But in the instant case, Sgt. Anderson’s actions were even more removed from the

ultimate relevant decision than those of the officer in Malley, and the Plaintiffs’ reliance

on this case is not entirely convincing. Here, Sgt. Anderson submitted the warrant

application and investigatory materials containing false and misleading information to

prosecutor, the prosecutor approved the warrant application, a magistrate issued the

warrant, and the Plaintiffs were arrested. See Mich. Comp. Laws § 764.1(1) (West

2010); Walczak v. City of Detroit, 875 F.2d 869 (table) (6th Cir. 1989) (describing the

warrant-request process in Michigan). Following the Plaintiffs’ arrest, however, there

was a preliminary hearing during which the state court made a determination that

probable cause to prosecute existed based, in part, on Sgt. Nichols’s false testimony, and

it is undisputed that Sgt. Anderson did not testify at the preliminary hearing. Although

this circuit has not confronted a case entirely analogous to the instant one, Gregory is

again helpful in determining whether Sgt. Anderson’s actions survive these intervening

decisions such that he can be said to have influenced or participated in the decision to

institute criminal proceedings against the Plaintiffs.

In Gregory, this court upheld a district court’s grant of summary judgment on a

claim of malicious prosecution in favor of two officer-defendants who had fabricated

investigative notes indicating that the plaintiff possessed independent knowledge of facts

from the crime that only the perpetrator would know. Gregory, 444 F.3d at 757. The

panel reasoned that the plaintiff had “failed to establish a Fourth Amendment injury from

the notes’ existence and creation” because the plaintiff had presented “no evidence that

the notes were presented to the court at the preliminary hearing”—thereby

“contribut[ing] to the Court’s determination of probable cause to hold Plaintiff over for

trial”—or “that the notes influenced any decision to proceed to trial.” Id. at 759–60.

The conclusion not only that the consequences of the officer’s actions must be

reasonably foreseeable but also that the officer’s action must have influenced the

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 27

continued detention is consistent with other circuits that have confronted cases similar

to the instant one. For example, in Reed v. City of Chicago, the Seventh Circuit noted

that although “[i]t is conceivable that a wrongful arrest could be the first step towards

a malicious prosecution[,] . . . the chain of causation” will be “broken by an indictment[]

absent an allegation of pressure or influence exerted by the police officers, or knowing

misstatements made by the officers to the prosecutor.” Reed v. City of Chicago, 77 F.3d

1049, 1053 (7th Cir. 1996) (citing Senra v. Cunningham, 9 F.3d 168, 174 (1st Cir. 1993),

which held that a “[t]he chain of causation [will be] broken if the filing of the

information by the attorney at the state Attorney General’s office was free of pressure

or influence exerted by the police officers or knowing misstatements made by the

officers to the Attorney General’s office”); Taylor v. Meacham, 82 F.3d 1556, 1563–64

(10th Cir. 1996) (adopting Reed’s reasoning and holding that no claim could be

sustained against a sheriff who may have “set in motion a malicious prosecution”

because the “preliminary hearing broke the ‘chain of causation’” and there was no

evidence that the sheriff “made false or misleading statements following [the plaintiff’s]

arrest, nor that he somehow caused false or perjured testimony to be presented at the

preliminary hearing”). Likewise, in Higazy v. Templeton, the Second Circuit concluded

that “[d]efendants . . . may be liable for consequences caused by reasonably foreseeable

intervening forces,” and “the chain of causation need not be considered broken [in a

malicious-prosecution claim against an officer] if [the officer] deceived the subsequent

decision maker or could reasonably foresee that his misconduct would contribute to an

independent decision that results in a deprivation of liberty.” Higazy v. Templeton, 505

F.3d 161, 177 (2d Cir. 2007) (internal quotation marks, citation, and alteration omitted).

Based on the foregoing caselaw, we conclude that in order to show that Sgt.

Anderson participated in or that his actions influenced the commencement of criminal

proceedings as required to sustain a claim of malicious prosecution, the Plaintiffs were

required to present some evidence that the impact of Sgt. Anderson’s misstatements and

falsehoods in his investigatory materials extended beyond the Plaintiffs’ initial arrest and

ultimately influenced the Plaintiffs’ continued detention. We also conclude, however,

that such influence is not narrowly limited to the introduction of Sgt. Anderson’s false

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 28

statements as evidence at the preliminary hearing but can also be based on Sgt.

Anderson’s “knowing misstatements . . . to the prosecutor” or his “pressure or

influence,” Reed, 77 F.3d at 1053, over an individual who either made the decision to

prosecute or testified at the preliminary hearing.

Employing this standard in the instant case, a reasonable jury could have found

that Sgt. Anderson participated in or influenced the decision to prosecute the Plaintiffs

such that liability for malicious prosecution is proper. Perhaps the most telling evidence

of Sgt. Anderson’s influence over the decision to commence criminal proceedings

against the Plaintiffs resides in his investigatory materials, which were clearly in the

prosecution’s possession. Not only did these materials contain knowing misstatements,

as outlined previously, but also it is apparent from the record that the prosecution

actually relied on many of Sgt. Anderson’s falsehoods in proceeding against the

Plaintiffs by reproducing many of the very same material misrepresentations of the

evidence that Sgt. Anderson had made. For example, Lewis stated in her notes that the

surveillance “video tape does not show an [armed robbery]” because “nothing [was]

taken from the safe until the [defendants were] alone in the room,” and that the Plaintiffs

“appear[ed] to be counting money.” Doc. 231-17 (Prosecutor Notes). This is plainly not

the case, and a reasonable jury could have concluded from the striking similarities

between Prosecutor Lewis’s unsupported conclusions and Sgt. Anderson’s falsehoods

that the prosecution relied on Sgt. Anderson’s misstatements in filing criminal charges.

Sgt. Anderson’s influence can likewise be seen in the prosecution’s reference to the

Holmes gaming records. Notwithstanding the fact that the prosecution had not seen any

documentation from the Casino, Lewis noted that Holmes had “spent almost the exact

amount stolen [at] a casino” and that Sgt. Anderson, the officer in charge, “ha[d] the

records” to prove it. Id.

In short, the fact that Sgt. Anderson did not make the decision to initiate the

criminal proceedings against the Plaintiffs is of no moment, as the record contains ample

evidence that Sgt. Anderson influenced or participated in the ultimate decision to

prosecute the Plaintiffs by way of his knowing misstatements to the prosecutor. As the

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 29

Seventh Circuit stated in Jones v. City of Chicago, “[i]f police officers have been

instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape

liability by pointing to the decisions of prosecutors or grand jurors or magistrates to

confine or prosecute him.” Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988).

“They cannot hide behind the officials whom they have defrauded.” Id. We thus affirm

the judgment against the Defendants as to the Plaintiffs’ claims for malicious

prosecution.14

E. Due-Process Claim

Sgt. Anderson also challenges on appeal the jury’s conclusion that his failure to

disclose the letter from MotorCity Casino casting doubt on the reliability of Holmes’s

gaming records violated the Plaintiffs’ right to a fair criminal trial in violation of due

process. Specifically, Sgt. Anderson claims that there was insufficient evidence for the

jury to determine that he concealed exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963), because: (1) a Brady claim cannot be raised against a

police officer in a § 1983 action, (2) Brady is inapplicable where the evidence is

available from another source, (3) the evidence was not favorable to the Plaintiffs, and

(4) the Plaintiffs are unable to show prejudice. We address and reject each of Sgt.

Anderson’s assertions in turn.

As discussed previously, the contested evidence consisted of a three-page letter

from the MotorCity Casino that was sent as part of the Casino’s longer, nine-page

response to Sgt. Nichols’s subpoena for Holmes’s gaming records. Numerous pages

from the Casino provided information that indicated that Holmes’s player’s card had

been used to wager approximately $20,000 within days of the robbery. The first three

pages of the Casino’s response, however, consisted of a letter from the Casino’s legal

counsel that stated, in relevant part:

14

Although the Defendants claim that the jury was improperly instructed regarding the elements

of the malicious-prosecution claim, looking at the totality of the district court’s instructions, we find no

error. See Wilson v. Morgan, 477 F.3d 326, 341 (6th Cir. 2007) (“A judgment may be reversed only if the

instructions, viewed as a whole, were confusing, misleading, and prejudicial.”).

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 30

Our office is in receipt of your request for information [regarding

Kimberly Holmes] . . . . Detroit Entertainment, L.L.C., may have

documentation in its possession prepared and filed in accordance with

[federal statute and regulations,] . . . [which] Detroit Entertainment,

L.L.C., d/b/a MotorCity Casino believes that it is prohibited from

disclosing . . . .We recommend that you contact the Internal Revenue

Service to obtain any such documentation filed by . . . MotorCity Casino

in connection with [Holmes].

....

I would like to state in writing the position of MotorCity Casino with

respect to the documentation you seek. The documentation that

MotorCity Casino retains in connection with the play of its customers is

compiled primarily for marketing purposes; it is not compiled in a

manner that ensures either accurate or full reporting of the time spent at

the casino, the time spent gambling, or the actual play (wins or losses)

of a customer. Indeed, if the records indicate slot machine activity, they

only reflect the fact that a player’s card bearing the identification name

was used—not that the person to whom the card was issued actually used

it. Furthermore, records regarding table game activity are based on

periodic visual inspections by various pit employees who then manually

input data into the computer system. Note, too, that some entries may

simply reflect the fact that a MotorCity Casino employee logged on to

the system to check the player’s status, thereby creating the appearance

of that player’s attendance at the Casino at the time of the log-in when

no such attendance occurred. Accordingly, the documentation would not

establish in any reliable manner the dates of attendance, gambling

activities, or winnings or losses of a player. Therefore, I would advise

discretion in utilizing the enclosed information.

Doc. 231-8 (Casino Letter at 2–3) (emphases added). Despite receiving this letter, Sgt.

Anderson did not request surveillance tapes from the Casino or otherwise attempt to

confirm Holmes’s presence and did no further investigation into the accuracy of the

records.

At Sykes and Urquhart’s criminal trial, the prosecution’s principal theory of the

case was that the robbery was an inside job and that Holmes had gambled away the loot.

Sgt. Anderson was the key witness, and he testified that he had received documentation

from the Casino that Holmes had used her player’s card to wager around $20,000

immediately following the robbery. The prosecution then admitted into evidence the

single page from the Casino that Sgt. Anderson had provided to the prosecution, which

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 31

set forth the wagering data that included the amounts that Holmes purportedly lost. As

noted, there were several problems with this evidence. First, Sgt. Anderson had not

disclosed the existence of the gaming records to the Plaintiffs’ defense attorneys prior

to trial, so the first time that the defense gained knowledge of the Casino’s records was

while Sgt. Anderson was on the stand. Second, Sgt. Anderson never revealed to either

the prosecution or the defense that the Casino sent anything other than the one page that

was introduced as evidence, and he made no mention of the Casino’s disclaimer letter

at any time. Third, as compared to the original nine-page document that the Casino had

sent in response to the subpoena, the one page from the Casino that the prosecution

introduced as evidence had been magnified and cropped in a manner that removed the

fax time stamps and page numbers, erasing any evidence that it was only one page of a

much lengthier document. In other words, there was nothing to put Urquhart or Sykes

on notice that the information that Sgt. Anderson was presenting from the Casino on this

one page was incomplete.

Following the introduction of the Casino document, the prosecutor proceeded to

question Sgt. Anderson about the accuracy of the wagering calculation contained therein:

Q: “Now you also received some information from Motor City

regarding the absolute accuracy of those numbers.”

“A: Yes.”

“Q: What did Motor City convey to you as to . . . whether or not those

are absolute hard numbers or if they’re just marketing estimates

or something like that?”

....

Q: . . . “A: These were absolute numbers due to the fact they would

have to send to the federal government this paperwork regarding tax

information.”

Doc. 237 (Anderson Trial Test. at 104–05) (quoting Anderson’s testimony from the

Plaintiffs’ criminal trial). These statements, however, were patently false and directly

contradicted the explicit statements in the Casino letter that its calculations were for

marketing purposes, were not disclosed to the IRS, and were not reliable indicators of

the amount wagered or the identity of the individual who gambled. Sgt. Anderson’s

failure to disclose this information constituted the basis for the Plaintiffs’ Brady claim.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 32

1. Brady-Based § 1983 Due-Process Claim Against Police Officers is

Cognizable

Sgt. Anderson first argues that a due-process claim against a police officer for

a Brady violation in a 42 U.S.C. § 1983 action is not cognizable. In Moldowan v. City

of Warren, a panel of this circuit recently rejected such an argument and held that “the

due process guarantees recognized in Brady also impose an analogous or derivative

obligation on the police,” and that a violation of that obligation can result in civil

liability. Moldowan v. City of Warren, 578 F.3d 351, 381 (6th Cir. 2009), cert. denied,

130 S. Ct. 3504 (2010); see also Elkins v. Summit Cnty., 615 F.3d 671, 676 (6th Cir.

2010). This panel is without authority to overrule binding precedent, because a

published prior panel decision “remains controlling authority unless an inconsistent

decision of the United States Supreme Court requires modification of the decision or this

Court sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985). Moldowan clearly forecloses Sgt. Anderson’s

argument, and his claim is thus without merit.

2. The Evidence Was Not Available from Another Source

Sgt. Anderson next argues that even assuming he was obligated to turn over

favorable evidence under Brady, that obligation does not apply when the evidence was

readily available from another source and that, in this case, the Plaintiffs could have

contacted the Casino directly and obtained the information contained in the Casino’s

letter. In support of his argument, Sgt. Anderson relies on Spirko v. Mitchell, 368 F.3d

603 (6th Cir. 2004), which reaffirmed prior precedent standing for the proposition that

if a “defendant was aware of the essential facts that would enable him to take advantage

of the exculpatory evidence, the government’s failure to disclose [that evidence] d[oes]

not violate Brady.” Spirko, 368 F.3d at 610 (internal quotation marks omitted).

What is fatal to Sgt. Anderson’s claim, however, is that the record does not

support the conclusion that the Plaintiffs ever possessed the “essential facts,” id., that

would have enabled them to uncover the evidence at issue. Trial testimony indicates that

at no point prior to trial were the Plaintiffs on notice that Sgt. Anderson possessed

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 33

information from the Casino regarding the use of Holmes’s gaming card. In fact, the

Plaintiffs’ defense attorney testified explicitly that the discovery packet “definitely [did]

not” contain any documents having to do with gaming activity, Doc. 238 (Richards Trial

Test. at 8), and that the “first time” she ever saw any document from the Casino was at

trial, id. at 19. Additionally, even assuming that the Plaintiffs were on notice that the

police had evidence that Holmes had wagered an amount of money that was

approximately equal to that which was stolen from the store, this did not place the

Plaintiffs “on notice that there was evidence” from the Casino that this information was

entirely unreliable. Spirko, 368 F.3d at 610; see also Harris, 513 F.3d at 518 (“[T]here

is no indication that [the defendant] knew or had reason to know” of the existence of the

undisclosed evidence). In short, Sgt. Anderson’s argument is without merit because

there is no evidence in the record indicating that the Plaintiffs possessed any of the facts

that would have enabled them to uncover the Casino letter prior to trial.

3. The Plaintiffs Proved the Evidence Was Favorable and that They

Suffered Prejudice

The next challenge to the jury’s verdict on the due-process claim is that

insufficient evidence supported the jury’s findings that the Casino letter was favorable

to the Plaintiffs and that the Plaintiffs suffered prejudice as a result of Sgt. Anderson’s

failure to disclose the letter. “In Brady, the United States Supreme Court imposed upon

the prosecutorial arm of the government the obligation to turn over material that is both

favorable to the defendant and material to guilt or punishment.” Johnson v. Mitchell,

585 F.3d 923, 933 (6th Cir. 2009) (internal quotation marks omitted). “Moreover, it is

well-settled that this disclosure obligation includes evidence that could be used to

impeach the credibility of a witness.” Id. (internal quotation marks omitted); see also

United States v. Bagley, 473 U.S. 667, 676 (1985). “Nevertheless, a Brady violation will

not result in a grant of relief” unless we can conclude that the evidence the police

improperly withheld “‘could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.’” Johnson, 585 F.3d at 933

(quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 34

We believe that Sgt. Anderson’s claim that the undisclosed Casino letter was not

“favorable” is entirely without merit. The Casino letter directly contradicts Sgt.

Anderson’s testimony, and it would have been very powerful impeachment evidence for

two reasons. First, the letter clearly indicated that the dollar amounts that the

prosecution admitted into evidence to show that Holmes had wagered approximately the

same amount of money that was stolen were not reliable. Second, the letter raised

serious questions about whether Holmes was even the individual who had wagered the

amount of money indicated on the Casino’s marketing records, which, if she were not,

would have undermined the prosecution’s entire theory of the case. From the time that

Sgt. Anderson submitted the warrant request until the jury’s verdict, the strongest piece

of circumstantial evidence of the Plaintiffs’ involvement in any criminal activity was

Holmes’s gambling. With the credibility of the strongest evidence against the Plaintiffs

directly called into question, the prosecution’s case would have collapsed.

In addition to concluding that the Casino letter was “favorable” to the Plaintiffs,

a reasonable jury also could have found that the Plaintiffs were prejudiced as a result of

Sgt. Anderson’s failure to disclose the evidence because “‘there is a reasonable

probability’” that, had Sgt. Anderson disclosed the evidence, “‘the result of the

proceeding would have been different.’” Apanovitch v. Houk, 466 F.3d 460, 475 (6th

Cir. 2006) (quoting Strickler v. Greene, 527 U.S. 263, 280, 282 (1999)). “A ‘reasonable

probability’ of a different outcome exists where the government’s suppression of

evidence undermines confidence in the outcome of the trial.” Id. (citing Kyles, 514 U.S.

at 434, Bagley, 473 U.S. at 682, and Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir.

2003)). It bears repeating that at the Plaintiffs’ criminal trial, the prosecution’s theory

was that the robbery was an inside job and that Holmes blew the money on a gambling

spree. The prosecutor articulated it best in his closing statement:

“Well, let me tell you, ladies and gentlemen, I’m demanding that you

accept the facts in this case because the facts show without a doubt that

this was a faked armed robbery, that these two women were in on it, that

they covered it up, that Ms. Holmes took the money after the robbers left,

after several minutes of colluding with these two women, took the money

and ran with it. Those are the facts. I’m demanding that you accept

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 35

these facts . . . And consider this, ladies and gentlemen, here’s a woman,

Ms. Holmes, who spends almost $25,000 in the casino in three days . . .

Think of it this way, okay? Miss Sykes and Ms. Urquhart agreed to

make the false report in exchange for money. Ms. Holmes rips them off,

later blows the money at the casino. Maybe she’s thinking she’ll turn it

into 50 grand, give them their money and more for me, but she spends

the money.”

Doc. 261 (Trial Test. at 61–62) (quoting the prosecution’s closing argument at the

criminal trial). This theory depends, however, on one critical fact that the Casino letter

calls into question: Holmes actually gambled a comparable amount of money to that

stolen from the Sprint store.

On the record before us, we believe that there is sufficient evidence for a

reasonable jury to conclude that the “‘result of the proceeding would have been

different’” if Sgt. Anderson had disclosed the Casino letter. See Apanovitch, 466 F.3d

at 475 (quoting Strickler, 527 U.S. at 280). Even the prosecutor in the underlying

criminal action testified that if he had known about the additional documentation from

the Casino, he would have asked different questions regarding the accuracy of numbers

introduced into evidence and would have expected Sgt. Anderson to have given different

answers. The prosecutor also testified that, had he known about the letter, he would

have disclosed it to the Plaintiffs, which implicitly recognizes its value as Brady

material. Furthermore, the Plaintiffs’ defense attorney testified before the jury in the

instant case about what she would have done differently had she possessed the Casino

letter, specifically asserting that she would have (1) impeached Sgt. Anderson with the

letter to undermine the prosecution’s theory that the three women worked together and

that the money went to fund Holmes’s gambling, (2) subpoenaed the Casino records, and

(3) called a representative from the Casino to testify as to the manner that the records

should have been interpreted. In sum, the defense attorney would have used the fact that

both the identity of the gambler and the amount of money that the gambler wagered were

unreliable as a vehicle to attack the prosecution’s entire case.

This was not a case where the evidence against the Plaintiffs was strong. It was

entirely premised on a single piece of circumstantial evidence that the undisclosed letter

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 36

completely undermined. For the foregoing reasons, we affirm the judgment of the

district court with regard to the Plaintiffs’ due-process claims against Sgt. Anderson.

F. Motion for a New Trial

The Defendants next contend that the district court abused its discretion in

denying their motion for a new trial under Federal Rule of Civil Procedure 59(a). “We

review a district court’s denial of a new-trial motion for abuse of discretion, reversing

only if we have a definite and firm conviction that the trial court committed a clear error

of judgment.” Radvansky, 496 F.3d at 614 (internal quotation marks omitted). Granting

such a motion necessarily calls into question the legitimacy of the jury’s verdict, and

given our conclusion that the evidence supported the jury’s verdict on the Plaintiffs’

claims of false arrest, malicious prosecution, and due-process violations, we likewise

conclude that the district court did not abuse its discretion.

G. Propriety of the Damages Award

1. Punitive Damages

Turning to damages, the Defendants first argue that the evidence at trial failed

to show that the Defendants’ actions were reprehensible enough to support a punitive-

damages award. Because the Defendants failed to challenge to the sufficiency of the

evidence in their Rule 50(a) motion, however, the matter is waived.15

2. Remittitur of Damages

The Defendants’ final challenge is that the damage award was clearly excessive

and that they were entitled to remittitur of both the compensatory and punitive amounts.

In the instant case, the jury awarded Sykes $1,063,000 in compensatory damages and

$250,000 in punitive damages for her false-imprisonment, malicious-prosecution, and

due-process claims. Sgt. Nichols and Sgt. Anderson are jointly and severally liable for

15

We are unconvinced by the Defendants’ attempt to recharacterize their challenge to the

punitive-damages award as one involving a jury-instruction error. The substance of the Defendants’ claim

that the evidence at trial could not have satisfied the standard set forth in the jury instruction is no different

than the assertion that the evidence at trial did not establish that the Defendants’ conduct was sufficiently

reprehensible.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 37

the compensatory damages while Sgt. Nichols is liable for only $100,000 of the punitive-

damages award. Urquhart received a compensatory-damage award of $1,020,000 for her

malicious-prosecution and due-process claims and $250,000 in punitive damages.

Again, Sgt. Nichols and Sgt. Anderson are jointly and severally liable for the

compensatory-damage award while Sgt. Nichols is liable for only $100,000 of the

$250,000 in punitive damages.

“As a general rule,” we have “held that a jury verdict will not be set aside or

reduced as excessive unless it is beyond the maximum damages that the jury reasonably

could find to be compensatory for a party’s loss.” Am. Trim, L.L.C. v. Oracle Corp., 383

F.3d 462, 475 (6th Cir. 2004) (internal quotation marks omitted). We review the denial

of remittitur under an abuse-of-discretion standard. Gibson v. Moskowitz, 523 F.3d 657,

663 (6th Cir. 2008). The district court has discretion to remit a compensatory-damages

“verdict only when, after reviewing all the evidence in the light most favorable to the

prevailing party, it is convinced that the verdict is clearly excessive; resulted from

passion, bias, or prejudice; or is so excessive or inadequate as to shock the conscience

of the court.” Am. Trim, 383 F.3d at 475. “If there is any credible evidence to support

a verdict, it should not be set aside.” Id. “Three considerations guide” the inquiry of

whether punitive damages are excessive: “(1) the degree of reprehensibility of the

conduct; (2) the disparity between the harm suffered by the plaintiff and the punitive

damages award; and (3) the difference between the punitive damages and the civil

penalty imposed in comparable cases.” Gibson, 523 F.3d at 664 (citing BMW of N. Am.,

Inc. v. Gore, 517 U.S. 559, 574–75 (1996)).

Although the Plaintiffs argue that the district court did not abuse its discretion

in denying the Defendants’ motion for remittitur, the district court provided no written

explanation for its disposition and merely stated that “[b]eing fully advised . . . [and]

having read the pleadings,” the district court was denying the motion “for the reasons

set forth on the record.” Doc. 193 (Dist. Ct. Order 6/25/08 at 2). Unfortunately,

however, at the hearing on the Rule 50(b) motion where the district court was presented

with the opportunity to address the Defendants’ request for remittitur orally, the district

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 38

court also declined to set forth an explanation as to why it believed the jury’s damages

award was supported by the evidence presented. In fact, the district court failed even to

mention the Defendants’ motion for remittitur at the Rule 50(b) hearing and focused,

instead, on the Defendants’ challenge to the propriety of punitive damages generally.16

Because “the district court . . . did not adequately give the reasons for [its]

denial” of the Defendants’ motion for remittitur, and failed to “address the parties’

arguments” regarding remittitur as presented in their respective post-verdict motions for

judgment as a matter of law, we conclude that the district court abused its discretion.

Mich. Division-Monument Builders of N. Am. v. Mich. Cemetery Ass’n, 524 F.3d 726,

740 (6th Cir. 2008). The district court’s complete “lack of explanation . . . greatly

hinders our ability to understand its reasoning,” id., and because of the deference that we

are required to provide to a district court’s decision regarding remittitur, we must remand

the case to the district court for a statement of reasons regarding the manner in which it

chose to exercise its ample discretion and for some justification as to why the jury’s

award fell within the permissible range.17

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court as to

liability under 42 U.S.C. § 1983 for false arrest, malicious prosecution, and withholding

of evidence in violation of the Plaintiffs’ due-process rights. Because the district court

failed to articulate a basis for its denial of the Defendants’ motion for remittitur, we

REMAND for the sole purpose of having the district court explain its reasons for

denying remittitur. We HOLD IN ABEYANCE the Plaintiffs’ cross-appeals in Case

16

The district court’s discussion of punitive damages generally is unhelpful to our resolution of

whether the district court abused its discretion in denying remittitur because it contains no analysis of

whether the facts of the case supported the jury’s ultimate award. Instead, in denying the Defendants’

motion for judgment as a matter of law on the punitive-damages award, the district court relied on the

Defendants’ failure to challenge the sufficiency of the evidence for the punitive damages award prior to

the submission of the case to the jury in their Rule 50(a) motion.

17

The scope of the mandate on remand is extremely limited and provides only that the district

court explain the denial of the Defendants’ motion. We express no opinion as to the propriety of that

decision, which we will address upon receipt of the district court’s explanation.

Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 39

Numbers 08-2090 and 08-2118 pending our later review of the district court’s statement

of reasons with regard to remittitur.