Jeffrey Moldowan v. Maureen Fournier

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0292a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

JEFFREY MICHAEL MOLDOWAN,

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Nos. 07-2115/2116/2117

v.

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CITY OF WARREN, DONALD INGLES, MICHAEL -

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SCHULTZ (07-2115); ALAN WARNICK

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(07-2116); MAUREEN FOURNIER (07-2117),

Defendants-Appellants. N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-70331—Anna Diggs Taylor, District Judge.

Argued: January 20, 2009

Decided and Filed: August 18, 2009

Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

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COUNSEL

ARGUED: Rosalind Rochkind, GARAN LUCOW MILLER, P.C., Detroit, Michigan,

Brian J. Richtarcik, CHAPMAN & ASSOCIATES, P.C., Bloomfield Hills, Michigan, Sarah

R. Prout, LAKESHORE LEGAL AID, Port Huron, Michigan, for Appellants. Michael R.

Dezsi, FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, Southfield, Michigan, for

Appellee. ON BRIEF: Rosalind Rochkind, Jami E. Leach, GARAN LUCOW MILLER,

P.C., Detroit, Michigan, Brian J. Richtarcik, Ronald W. Chapman, CHAPMAN &

ASSOCIATES, P.C., Bloomfield Hills, Michigan, Sarah R. Prout, William R. Knight,

LAKESHORE LEGAL AID, Clinton Township, Michigan, for Appellants. Marc M.

Susselman, Dennis A. Dettmer, Detroit, Michigan, for Appellee.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined.

KETHLEDGE, J. (pp. 59-68), delivered a separate opinion concurring in the judgment in

part and dissenting in part.

1

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 2

_______________________________

SECOND AMENDED OPINION

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CLAY, Circuit Judge. In this action, Plaintiff Jeffrey Moldowan (“Moldowan”)

asserts a number of claims under 42 U.S.C. § 1983 alleging violations of his rights under the

Fourth, Fifth, Sixth and Fourteenth Amendments, as well as claims under Michigan state

law. Moldowan’s claims arise out of his arrest, criminal prosecution, conviction, and retrial

for the 1990 abduction and brutal sexual assault of Maureen Fournier (“Fournier”). After

new evidence came to light and a key prosecution witness recanted her testimony, the

Michigan Supreme Court reversed Moldowan’s conviction in 2002. People v. Moldowan,

643 N.W.2d 570 (Mich. 2002). On retrial, in February 2003, Moldowan was acquitted of

all charges and released, having served nearly twelve years in prison.

After his release, Moldowan filed the instant civil action asserting various claims

against the City of Warren, the Warren Police Department, Macomb County, the Macomb

County Prosecutor in his official capacity, Dr. Alan Warwick, Warren Police Detective

Donald Ingles, Warren Police Officer Mark Christian, and Fournier. Moldowan

subsequently amended his complaint to assert claims against Warren Police Officer Michael

Schultz. Broadly speaking, Moldowan alleges that the Defendants—both acting separately

and conspiring together—violated his civil rights by fabricating evidence against him, failing

to disclose exculpatory evidence, and pursuing his prosecution and retrial without probable

cause.

After discovery, the Defendants moved for summary judgment on all thirty-six

counts asserted in Moldowan’s Third Amended Complaint raising various immunity

defenses. After dismissing certain counts against Detective Ingles, the City of Warren, and

the Warren Police Department, and dismissing all counts against Officer Christian, the

district court denied Defendants’ motions for summary judgment in all other respects. These

three interlocutory appeals followed. For the reasons set forth herein, we AFFIRM IN

PART and REVERSE IN PART the judgment of the district court.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 3

I.

Moldowan’s Third Amended Complaint asserts thirty-six claims against nine county,

municipal, and individual defendants. All claims arise out of Moldowan’s arrest, criminal

prosecution, conviction, and retrial for the abduction and assault of Maureen Fournier.

A. Factual Background

On the morning of August 9, 1990, Emergency Medical Service (“EMS”) found

Fournier badly injured and lying in the street in the City of Detroit. EMS transported

Fournier to St. John’s Hospital. The medical forms completed on her admission to the

hospital, as well as subsequent medical reports and testimony from her doctors, bear witness

to the extreme brutality of the crime. The police determined that Fournier had been abducted

from the City of Warren, brutally assaulted and raped, and left on a street in Detroit.

Because Fournier had been abducted from Warren, the matter was turned over to the

Warren Police Department (“Department”), and the case was assigned to Detective Ingles.

Given the extent of Fournier’s injuries, officers had to wait two days before they could

interview her regarding the attack. Even then, the extent of Fournier’s injuries forced

1

Detective Ingles to write questions on a board, and Fournier responded in kind. During the

interview, Fournier reported that she had been abducted from Warren on the night of

August 8, 1990 by four Caucasian males, all of whom she knew. Fournier stated that,

while she was walking down the street, she was approached by Moldowan, who was her

ex-boyfriend, thrown into a white or light-colored van, and brutally beaten and raped by

three of the four assailants. Fournier identified her attackers as Michael Cristini, Jim

Cristini, Tracy Tapp (“Tapp”), and Moldowan. Fournier’s sister, Colleen Corcoran

(“Corcoran”), confirmed Fournier’s claims that Moldowan previously had assaulted and

threatened Fournier.

After completing their investigation, the police arrested and charged all four

individuals. The police subsequently dropped the charges against Tapp based on his

alibi that he had been in Texas for several days prior to the assault, had not returned to

1

Detective Ingles subsequently transcribed Fournier’s responses to a witness statement form,

which she later signed.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 4

the Michigan until the evening of August 8, and spent the rest of the night with his

girlfriend. Tapp’s girlfriend confirmed his alibi.

On September 17-18, 1990, the Macomb County Circuit Court held a preliminary

examination to determine whether sufficient evidence existed to proceed to trial. During

that hearing, Fournier testified that, prior to the assault, she had dated and lived with

Moldowan for more than a year before their relationship ended when he was arrested for

assaulting her. Fournier and her sister both testified that, prior to the attack, Moldowan

had been abusive toward Fournier and threatened her. In describing the assault, Fournier

testified that she had been walking on 11 Mile Road in Warren when a van pulled

alongside her. Fournier testified that Moldowan got out of the van, grabbed her, and

dragged her into the van, where she was beaten and raped. As a result of the assault,

Fournier suffered significant injuries that required extensive abdominal surgery.

Corcoran also testified at the hearing, stating that she received a call from an

unidentified male on August 9, 1990, the day Fournier was found in Detroit, inquiring

as to Fournier’s whereabouts. Corcoran claims that she immediately recognized the

caller as Moldowan. Corcoran testified that, although she knew that her sister was in the

hospital, she lied and told Moldowan that her sister was at home with her, and that

Moldowan then exclaimed: “No, she’s not. . . . She’s at the morgue.” (J.A. 839.)

Corcoran also testified that Moldowan had called her home the previous day looking for

Fournier, and that Moldowan had stated that “he was going to get her.” (J.A. 841-42.)

At the conclusion of the examination, the court dismissed Jim Cristini as a

defendant, but bound over Moldowan and Michael Cristini on all counts. A jury trial

was held from April 30 to May 10, 1991, during which Fournier and Corcoran offered

substantially the same testimony they provided during the preliminary examination.

Fournier also testified that she had never been in the Detroit neighborhood where EMS

found her, and that she had never frequented a crack house in the area.

In addition, Dr. Alan Warwick, D.D.S., a forensic odontologist and consultant

for the Wayne County Medical Examiner’s Office and a consultant to Macomb County,

Monroe County, and the Michigan State Police, offered expert testimony that bite marks

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 5

on Fournier’s neck were consistent with dental impressions taken from Moldowan, and

that bite marks on Fournier’s right arm and right side were consistent with Michael

Cristini’s dentition. In describing his conclusions, Dr. Warnick testified that the

“chances are . . . 2.1 billion to 1 that another individual can make those same marks.”

(J.A. 2544.)

In presenting their defense, Cristini and Moldowan offered alibi witnesses who

testified that the defendants were not together on the evening in question. The defense

also introduced pizza delivery tickets which documented the location of the pizza

deliveries Cristini had made the night of August 8, 1990, seeking to show that Cristini

could not have been part of the kidnaping. The defense also presented testimony from

a witness who claimed that she observed several males in the street where Fournier was

found, and that the males were both Caucasian and African-American. The defense also

offered expert testimony from its own forensic odontologists countering Dr. Warnick’s

testimony concerning the bite-mark evidence.

On rebuttal, the prosecution called Dr. Pamela Hammel, D.D.S., a colleague of

Dr. Warnick, who offered testimony corroborating and supporting Dr. Warnick’s

conclusions.

On May 10, 1991, the jury convicted Moldowan and Cristini of kidnaping,

assault with intent to commit murder, and two counts of criminal sexual conduct in the

first degree. After sentencing, the court entered an order requiring that “[a]ll evidence

in the custody of the Warren Police Department, the Macomb County Prosecutor’s

Office and the Macomb County Circuit Court[,] whether admitted into evidence or not

. . . [,] be preserved from this date forward until further order of the Circuit Court,

Michigan Court of Appeals, or Michigan Supreme Court.” (J.A. 2613.)

After trial, a private investigator hired by Moldowan’s family located a witness,

Jerry Burroughs, who reported that, on the morning of August 9, 1990, he saw four

African-American males standing around a naked white female who was lying in the

street, and that he saw the four men leave in a light-colored van. Burroughs further

recounted that, approximately one week after the assault, he overheard two of those same

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 6

men talking about the incident and bragging that they had participated in the assault.

Burroughs also indicated that he had seen Fournier in that neighborhood several times

that summer frequenting a crack house in the area.

In addition to this new evidence, Dr. Hammel, after being approached several

years later by Moldowan’s appellate counsel, also recanted her testimony. Dr. Hammel

explained that she initially had trouble matching the defendants’ dentitions to the bite

marks on Fournier’s body, but that Dr. Warnick had reassured her that Dr. Norman

Sperber, a highly respected forensic odontologist, had reviewed the evidence and

confirmed Dr. Warnick’s conclusions. After subsequently determining that Dr. Sperber

had never reviewed any evidence in the case, Dr. Hammel surmised that Dr. Warnick

“had been deceptive in order to mislead [her] into testifying in support of his

conclusions.”2 (J.A. 2568.) In a sworn affidavit, Dr. Hammel stated that, had she

known that Dr. Warnick’s representation that Dr. Sperber had reviewed the evidence was

untrue, she “would never have agreed to testify as a rebuttal witness in support of Dr.

Warnick’s conclusions.” (J.A. 2568.)

On the basis of this new evidence and discredited testimony, Moldowan again

sought review of his conviction. The Michigan Supreme Court eventually reversed

Moldowan’s conviction, and remanded the matter for a new trial. In particular, the

Michigan Supreme Court found that “the prosecutor’s two expert witnesses with respect

to ‘bite-mark’ evidence have either recanted testimony which concluded that bite marks

on the victim were made by the defendant or presented opinion evidence which has now

been discredited.” Moldowan, 643 N.W.2d at 570. The court also noted that the

prosecutor conceded that “it simply is not fair to say that the defendant or defendant’s

counsel should have known about the problems with the bite-mark evidence prior to

trial. The same can also be said with regard to the later-discovered alibi witnesses. . . .

Without the bite-mark evidence and with the additional alibi witnesses, the result of the

trial could have been different.” Id. at 571.

2

Dr. Warnick disputes Dr. Hammel’s claims and denies that he ever told Dr. Hammel that he had

consulted with Dr. Sperber. Dr. Warnick also denies that Dr. Hammel ever expressed any doubt about her

conclusions prior to Moldowan’s 1991 trial.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 7

On retrial, in February 2003, Moldowan was acquitted of all charges and

released. All told, Moldowan spent nearly twelve years in prison.

B. Procedural History of the Instant Action

On January 28, 2005, Moldowan brought this civil action asserting numerous

claims under 42 U.S.C. § 1983 and Michigan state law. Moldowan ultimately filed three

amended complaints. In resolving an earlier motion regarding discovery, the district

court offered the following summary of the claims asserted by Moldowan in his Third

Amended Complaint, the operative pleading at this juncture:

Plaintiff’s current complaint (Third Amended Complaint filed

February 9, 2006) alleges a total of 36 counts against several groups of

defendants: City of Warren; Police Department of City of Warren

(WPD); County of Macomb and its Prosecutor in his official capacity;

and sued in their individual and official capacities: Alan Warnick

[forensic consultant], Donald Ingles [WPD detective], Mark Christian

[WPD detective], Michael Schultz [WPD sergeant in charge of the

evidence room], and “other Present and Former Members of the Warren

Police Department and office of the Macomb County Prosecutor as yet

unidentified,” and sued individually: Maureen Fournier [the crime

victim]. The case currently exceeds 200 docket entries with numerous

. . . discovery disputes and appeals. Extensive discovery has been

conducted—lengthy depositions taken and numerous interrogatories and

requests to produce exchanged.

The complaint alleges federal violations of plaintiff’s civil and

constitutional rights during his criminal prosecution, as well as state

claims including intentional infliction of emotional distress against Ms.

Fournier for her conduct in the second prosecution. Relevant to the

instant motion are plaintiff’s claims against the City of Warren and the

Warren Police Department. With respect to these defendants, plaintiff

alleges a conspiracy between Warnick and members of the Warren Police

(Counts V, VI, VII, VIII), and conspiracy between Ms. Fournier and

members of the Warren Police Department (Counts XVI, XVII, XVIII,

XIX). Plaintiff also contends that there is liability on the part of the City

of Warren and Warren Police Department for inadequate training and/or

supervising of police officers regarding the constitutional rights of

citizens (Count XXIV), and for the actions of defendant Ingles as the

final policymaker in conducting the investigation (Count XXV).

Additionally, plaintiff claims liability against the City of Warren and the

Warren Police Department for the destruction of evidence in violation of

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 8

a court order. He also claims that the Warren Police Department and the

City of Warren are liable, along with Macomb County and its prosecutor,

for the continued seizure and prosecution of plaintiff without probable

cause in the second trial in violation of his constitutional rights under the

Fourth Amendment (Count XXVII), and his rights to substantive due

process under the Fourteenth Amendment (Count XXVIII), and his rights

to procedural due process under the Fourteenth Amendment (Count

XXIX). He also has a state claim for false imprisonment in connection

with the second prosecution (Count XXXV).

Moldowan v. City of Warren, No. 05-CV-70331, 2006 U.S. Dist. LEXIS 82161, at *7-10

(E.D. Mich. Oct. 31, 2006) (alterations in original).

After extensive discovery, Defendants filed motions for summary judgment,

asserting various qualified and absolute immunity defenses. Moldowan opposed those

motions and cross-moved for partial summary judgment. Based on concessions made

by Moldowan in his response to Defendants’ motions, the district court dismissed Counts

XXV, XXVII, XXVIII, and XXIX as to the City of Warren and the Warren Police

Department, dismissed all claims against Officer Christian, and dismissed Count XXXII

against Detective Ingles.

After receiving briefing from all parties and hearing argument on the matter, the

district court denied Defendants’ motions as to all remaining claims. The district court

denied the County’s motion on the grounds that “[t]he filing is appropriate against the

County as a matter of law and certainly there are many questions of material fact for a

jury to determine.” (J.A. 3041.) As to the Warren Defendants’ motion, the district court

concluded that “[t]here are far too many questions of fact here.” (J.A. 3020.) As to Dr.

Warnick’s motion, the court concluded that the motion “has to be denied” because

“[t]here are too many facts at issue here even as to qualified immunity to grant summary

judgment.” (J.A. 3065.) As to Fournier’s motion, the court concluded that “[t]here are

innumerable issues of fact here, particularly as to simply whether Fournier lied or not.

And the Court will instruct . . . that this was an intentional infliction or the jury is to

decide whether there was an intentional infliction of emotional distress. I do find that

the elements have been met.” (J.A. 3090-91.) The court also denied Moldowan’s

motion for partial summary judgment.

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The district court subsequently entered three written orders stating merely that

Defendants’ motions for summary judgment were “denied for the reasons stated on the

record.” (J.A. 323, 326, 328.) The district court’s written order as to the Warren

Defendants’ motion also dismissed “all claims against the City of Warren Police

Department . . . for the reason that the City of Warren Police Department is not a legal

entity capable of being sued.” (J.A. 326.)

These three interlocutory appeals followed.

II.

Before turning to the merits of Defendants’ appeals, we first must determine

whether and to what extent we have jurisdiction to consider on interlocutory appeal the

issues raised by the parties. On December 3, 2007, Moldowan moved this Court to

dismiss each of the three interlocutory appeals, arguing that the trial court’s orders do

not constitute final orders appealable under 28 U.S.C. § 1291 and are not appealable

under the collateral order doctrine. By order dated March 27, 2008, a prior panel of this

Court referred Moldowan’s motions to this panel for resolution. Upon consideration, we

hereby deny Moldowan’s motions.

A. Jurisdiction under the Collateral Order Doctrine

Although 28 U.S.C. § 1291 vests this Court with jurisdiction over appeals only

from “final decisions” of the district courts, “a decision ‘final’ within the meaning of

§ 1291 does not necessarily mean the last order possible to be made in a case.” Gillespie

v. United States Steel Corp., 379 U.S. 148, 152 (1964). A decision also is appealable if

it falls within “that small class [of orders] which finally determine claims of right

separable from, and collateral to, rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 546 (1949). That “small class” of decisions is limited to orders granting

or denying a claim that “cannot be effectively vindicated after the trial has occurred.”

Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).

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The requirements for bringing an appeal under Cohen’s collateral order doctrine

“have been distilled down to three conditions: that an order ‘[1] conclusively determine

the disputed question, [2] resolve an important issue completely separate from the merits

of the action, and [3] be effectively unreviewable on appeal from a final judgment.’”

Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting Puerto Rico Aqueduct and Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). In Johnson v. Jones, 515 U.S.

304 (1995), the Supreme Court clarified these elements as follows:

The requirement that the issue underlying the order be “effectively

unreviewable” later on, for example, means that failure to review

immediately may well cause significant harm. The requirement that the

district court’s order “conclusively determine” the question means that

appellate review is likely needed to avoid that harm. The requirement

that the matter be separate from the merits of the action itself means that

review now is less likely to force the appellate court to consider

approximately the same (or a very similar) matter more than once, and

also seems less likely to delay trial court proceedings (for, if the matter

is truly collateral, those proceedings might continue while the appeal is

pending).

Id. at 311 (citations omitted) (emphasis in original). The Court also has noted that

“some particular value of a high order” must be “marshaled in support of the interest in

avoiding trial.” Will, 546 U.S. at 352. Thus, to take advantage of the collateral order

doctrine, a party pursuing an interlocutory appeal must satisfy these three basic elements,

as well as demonstrate that the challenged order “‘imperil[s] a substantial public

interest.’” Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 948 (6th Cir. 2006) (quoting

Will, 546 U.S. at 353).

B. Jurisdiction in the Context of Immunity Claims

Whether we have jurisdiction to consider an issue on interlocutory appeal thus

requires us to consider the three basic elements as well as whether the denial of summary

judgment implicates “substantial public interests.” In this case, that requires us to

consider the interests implicated by the district court’s denial of Defendants’ qualified

and absolute immunity claims in the context in which those defenses have been asserted.

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1. Defendants’ Qualified Immunity Claims

Generally speaking, the rationale underlying the qualified immunity doctrine is

that, “where an official’s duties legitimately require action in which clearly established

rights are not implicated, the public interest may be better served by action taken ‘with

independence and without fear of consequences.’” Harlow v. Fitzgerald, 457 U.S. 800,

819 (1982) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). “Unless the plaintiff’s

allegations state a claim of violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the commencement of discovery.”

Mitchell, 472 U.S. at 526. Like absolute immunity, the qualified immunity privilege

entitles a party to “immunity from suit rather than a mere defense to liability,” and thus

“is effectively lost if a case is erroneously permitted to go to trial.” Id. (emphasis in

original).

In light of these interests, the Supreme Court has concluded that the denial of a

defendant’s assertion of qualified immunity “easily meets” the Cohen requirements:

Such a decision is “conclusive” in either of two respects. In some cases,

it may represent the trial court’s conclusion that even if the facts are as

asserted by the defendant, the defendant’s actions violated clearly

established law and are therefore not within the scope of the qualified

immunity. In such a case, there will be nothing in the subsequent course

of the proceedings in the district court that can alter the court’s

conclusion that the defendant is not immune. Alternatively, the trial

judge may rule only that if the facts are as asserted by the plaintiff, the

defendant is not immune. At trial, the plaintiff may not succeed in

proving his version of the facts, and the defendant may thus escape

liability. Even so, the court’s denial of summary judgment finally and

conclusively determines the defendant’s claim of right not to stand trial

on the plaintiff’s allegations, and because “[there] are simply no further

steps that can be taken in the District Court to avoid the trial the

defendant maintains is barred,” it is apparent that “Cohen’s threshold

requirement of a fully consummated decision is satisfied” in such a case.

Abney v. United States, 431 U.S. 651, 659 (1977).

Mitchell, 472 U.S. at 527. Thus, pursuant to Mitchell, “federal appellate courts have

jurisdiction to hear interlocutory appeals considering ‘the legal question of qualified

immunity, i.e., whether a given set of facts violates clearly established law.’” Farm

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 12

Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 531 (6th Cir. 2002)

(quoting Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999)); Dickerson

v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).

In considering the denial of a defendant’s claim of qualified immunity, however,

our jurisdiction is limited to resolving pure questions of law. See Mitchell, 472 U.S. at

530 (addressing denial of a claim of qualified immunity, but only “to the extent that it

turns on an issue of law”). We lack jurisdiction to consider “a district court’s summary

judgment order insofar as that order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at 313; Berryman v. Rieger,

150 F.3d 561, 563 (6th Cir. 1998) (“A defendant who is denied qualified immunity may

file an interlocutory appeal with this Court only if that appeal involves the abstract or

pure legal issue of whether the facts alleged by the plaintiff constitute a violation of

clearly established law.”). In light of this jurisdictional limitation, “a district court’s

determination that there exists a triable issue of fact cannot be appealed on an

interlocutory basis, even when the finding arises in the context of an assertion of

qualified immunity.” Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006).

To permit an appeal in such circumstances “would interject appellate review into a

district court’s determination that the evidence is sufficient for trial, a nonfinal

adjudication for purposes of 28 U.S.C. § 1291.” Id. at 743. “Under Johnson, therefore,

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

while a determination that an issue of fact is ‘genuine’ is unreviewable.” See v. City of

Elyria, 502 F.3d 484, 490 (6th Cir. 2007).

This jurisdictional limitation requires that, if “the defendant disputes the

plaintiff’s version of the story, the defendant must nonetheless be willing to concede the

most favorable view of the facts to the plaintiff for purposes of the appeal.” Berryman,

150 F.3d at 563; Meals v. City of Memphis, 493 F.3d 720, 726-27 (6th Cir. 2007) (“[A]

defendant is required to limit her argument to questions of law premised on facts taken

in the light most favorable to the plaintiff.”); Sheets v. Mullins, 287 F.3d 581, 585 (6th

Cir. 2002) (“In this circuit, it is well established that, for appellate jurisdiction to lie over

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an interlocutory appeal, a defendant seeking qualified immunity must be willing to

concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by

the case.”). “Once a defendant’s argument drifts from the purely legal into the factual

realm and begins contesting what really happened, our jurisdiction ends and the case

should proceed to trial.” Berryman, 150 F.3d at 564 (finding lack of jurisdiction to

consider defendants’ appeal to the extent that defendants “attempt[ed] to persuade us to

believe their version of the facts”); Harrison v. Ash, 539 F.3d 510, 517 (6th Cir. 2008)

(“Thus, to the extent that the denial of qualified immunity is based on a factual dispute,

such a denial falls outside of the narrow jurisdiction of this Court.”).

In Scott v. Harris, 550 U.S. 372 (2007), however, the Supreme Court recognized

an apparent exception to this jurisdictional limitation when it considered and rejected a

district court’s denial of summary judgment even though the district court had found

genuine issues existed as to material facts. In reaching that conclusion, and without

addressing the issue of jurisdiction, the Court found that a video of the incident rendered

the plaintiff’s version of the facts “so utterly discredited by the record that no reasonable

jury could have believed him.” Id. at 380. In trying to reconcile Scott with the Supreme

Court’s edict in Johnson, this Court has concluded that “‘where the trial court’s

determination that a fact is subject to reasonable dispute is blatantly and demonstrably

false, a court of appeals may say so, even on interlocutory appeal.’”3 Wysong v. Heath,

260 F. App’x 848, 853 (6th Cir. 2008) (quoting Blaylock v. City of Philadelphia, 504

F.3d 405, 414 (3rd Cir. 2007)).

It also is important to note that a district court’s stated basis for denying an

immunity claim “does not necessarily foreclose this Court’s jurisdiction over [a party’s]

appeal.” City of Elyria, 502 F.3d at 490; see also Christophel v. Kukulinsky, 61 F.3d

479, 485 (6th Cir. 1995) (“A defendant’s right to appeal the denial of qualified immunity

does not turn on the phrasing of the district court’s order.”). Rather, “‘regardless of the

district court’s reasons for denying qualified immunity, we may exercise jurisdiction

3

In Wysong, this Court found that the plaintiff’s admission in his deposition that no factual

dispute existed fell within this exception and warranted reversal of the district court’s finding of disputed

material facts. 260 F. App’x at 853-54.

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over the . . . appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d

685, 689-90 (6th Cir. 1999) (quoting Dickerson, 101 F.3d at 1157) (emphasis in

Williams).

After reviewing Defendants’ various qualified immunity claims, we conclude

that, while these appeals predominantly raise questions of law that are capable of

appellate review at this juncture, they also present some issues of fact that Johnson

dictates are beyond the scope of our jurisdiction. Where the parties ask us to resolve

factual disputes, we set those issues aside for resolution by the trial court. See Gregory,

444 F.3d at 742-43 (“To the extent that an appellant on interlocutory appeal argues

issues of fact and law on appeal, this Court will only entertain pure issues of law.”).

2. Defendants’ Absolute Immunity Claims

Detective Ingles, Dr. Warnick, and Fournier also challenge the district court’s

denial of their claims of absolute testimonial or witness immunity, which they assert in

response to those claims arising out of (or based in part on) their testimony at trial.

Unlike qualified immunity, the denial of a defense of absolute witness immunity

generally is not immediately appealable because the “lack of interlocutory appeal from

denials of witness immunity does not ‘imperil [a] substantial public interest.’” Kelly,

447 F.3d at 949. Despite acknowledging that testimonial immunity “strengthens the

substantial public interest of having witnesses come forward and testify truthfully,” we

nevertheless concluded in Kelly that the denial of such claims does not imperil that

overarching interest because “private individuals . . . will appear as witnesses, at most,

only a few times in their lives.” Id. On that basis, we reasoned that permitting a suit to

proceed against “private individuals” does not implicate the same interests as an appeal

from the denial of public official immunity, where the relevant interest is more

significant given that “the official, by spending more time than necessary to defend

himself or herself in an action, would spend less time on the tasks for which he or she

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 15

was hired and cost the public additional money in defending a suit that should have been

dismissed.” Id.

Unlike the defendants before us in Kelly, however, the defendants asserting

testimonial immunity in this case are a police officer, a forensic consultant, and the

victim of a brutal crime. Moreover, each asserts immunity based on testimony delivered

in the course of a criminal prosecution. In light of these factors, we conclude that the

balance of interests at issue in this case differs dramatically from the interests implicated

by the denial of immunity in Kelly. Because Kelly does not dispose of the question

presented here, we must determine whether the denial of an absolute witness immunity

claim asserted under these particular circumstances imperils a substantial public interest.

We conclude that it does.

As to Detective Ingles and Dr. Warnick, the interests implicated by the district

court’s denial of their testimonial immunity claims are sufficiently akin to those

implicated by the denial of public official immunity to support interlocutory review. As

the Court noted in Kelly:

Official immunity seeks to protect the ability of an official to exercise

discretion in accomplishing public tasks and to prevent the official from

spending time in court defending actions that are reasonably thought to

be legal. Without interlocutory appeal from district court denials of

immunity, the official, by spending more time than necessary to defend

himself or herself in an action, would spend less time on the tasks for

which he or she was hired and cost the public additional money in

defending a suit that should have been dismissed. The lack of speedy

resolution of the claim also threatens the official’s decisiveness in taking

action while the action is proceeding to trial.

447 F.3d at 949 (citation omitted). Those same interests are at stake where, as here, a

district court denies the absolute immunity claim of a police officer or forensic

investigator who testifies on behalf of the state as part of a criminal prosecution. See

Vakilian v. Shaw, 335 F.3d 509, 515-16 (6th Cir. 2003) (considering interlocutory appeal

from the denial of immunity asserted by a government investigator). Exposing police

officers and forensic investigators to suit based on testimony they deliver as part of their

official duties and on behalf of the state undoubtedly implicates their ability to exercise

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 16

their discretion and potentially inhibits them from performing their duties.4 Unlike the

parties before us in Kelly, “[s]ection 1983 lawsuits against police officer witnesses, like

lawsuits against prosecutors, ‘could be expected with some frequency.’ Police officers

testify in scores of cases every year, and defendants often will transform resentment at

being convicted into allegations of perjury by the State’s official witnesses.” Briscoe v.

LaHue, 460 U.S. 325, 343 (1983) (quoting Imbler v. Pachtman, 424 U.S. 409, 425

(1976)). Furthermore, because Detective Ingles and Dr. Warnick represented the State

of Michigan in the underlying criminal proceedings against Moldowan, their exposure

to suit also “would cause a continuing injury to the State’s dignitary interests every

additional day that [its officials] must remain in federal court.” Kelly, 447 F.3d at 949.

As to Fournier, we also conclude that the denial of her assertion of absolute

immunity warrants immediate review as it would imperil substantial public interests.

Although Fournier undoubtedly is a “private individual” and not a public official, the

balance of interests implicated here differs significantly from those at issue in Kelly

because the claims against her arose out of testimony she delivered as a victim witness

in the course of a criminal trial.

Extending interlocutory review to the denial of a testimonial immunity claim in

this context serves several important public interests. Most obviously, immunity from

suit prevents witness intimidation and self-censorship. Declining interlocutory review

under these circumstances would expose victims of crimes who testify in criminal

proceedings to suit—including the discovery, depositions, hearings, trials, and other

proceedings that attend civil actions—and thus would create a substantial disincentive

for victims to come forward to identify their attackers. That concern, in turn, implicates

4

Among other things, Moldowan claims that this Court lacks jurisdiction to consider Detective

Ingles’ appeal because Ingles is now retired. Moldowan, however, offers no authority to support his

contention that this is a relevant consideration. Moreover, Moldowan’s claims against Detective Ingles

arise out of testimony Ingles delivered as an active police officer with the Warren Police Department in

the course of his official duties. Consequently, granting Moldowan’s motion obviously will resound much

further than the limits of this case. Indeed, by denying Detective Ingles’ assertion of immunity with

respect to Moldowan’s Brady claims, the district court implicitly concluded that Brady could support a

claim against a police officer who fails to disclose exculpatory materials to the prosecutor’s office, as that

question of law lay at the heart of those claims. That conclusion obviously has implications that reach

beyond the unique circumstances of this case. Accordingly, this Court has jurisdiction to consider

Detective Ingles’ appeal. See City of Elyria, 502 F.3d at 489-90.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 17

the effective administration of the criminal justice system, which is undoubtedly a

weighty public interest. See Briscoe, 460 U.S. at 343 (recognizing absolute testimonial

immunity for police officers because their testimony, among other things, provides a

significant “contribution to the judicial process”).

This concern is all the more significant in this particular context because Fournier

was the victim of a brutal sexual assault, and thus the threat of being dragged through

the rigors of a civil suit based on her identification of, and testimony against, her alleged

attacker would create a tremendous emotional hardship on her. Declining to consider

Fournier’s appeal ultimately would create a significant disincentive for other victims of

rape and sexual assault to come forward and testify against their attackers. Victims of

crimes, especially the types of crimes that occurred here, must feel secure that

cooperating with the police will not expose them to lengthy and invasive civil

proceedings. The denial of immunity imperils that interest because subjecting victim

witnesses to the proceedings attendant to civil litigation potentially re-exposes them to

significant emotional trauma. As Fournier’s brief to this Court succinctly frames the

issue: “If a woman who has been sodomized, beaten and left permanently disabled can

be sued and subjected to an endless retread of the brutalization against her through

deposition and discovery, the entire criminal justice system is put at risk.” Fournier Br.

at 22. We agree.

Moreover, as the Supreme Court has noted, it is “the right and privilege” of

individuals “to aid in the execution of the laws of his country by giving information to

the proper authorities of violations of those laws,” and that right “may properly be said

to be secured by the Constitution and laws of the United States.” Motes v. United States,

178 U.S. 458, 462-63 (1900).

For these reasons, we hereby DENY Moldowan’s motions to dismiss. The

collateral order doctrine is satisfied here because Defendants’ absolute and qualified

immunity claims not only would be irretrievably lost if this case were to proceed to trial,

but also because subjecting these particular Defendants to civil proceedings implicates

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 18

substantial public interests. Again, however, we may consider Defendants’ appeals only

to the extent that they raise pure questions of law. See Johnson, 515 U.S. at 313-18.

III.

We review the district court’s denial of summary judgment de novo, using the

same Rule 56(c) standard as the district court. See White v. Baxter Healthcare Corp.,

533 F.3d 381, 389 (6th Cir. 2008); Williams, 186 F.3d at 689. Summary judgment is

proper “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of

material fact exists when there are “disputes over facts that might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). However, “[w]here the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l

Bank of Arizona v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).

At the summary judgment stage, the moving party bears the initial burden of

identifying those parts of the record that demonstrate the absence of any genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party

seeks summary judgment on an issue for which it does not bear the burden of proof at

trial, however, the moving party may meet its burden by showing “that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325. When the

moving party has carried this burden, “its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.

The non-moving party also may not rest upon its mere allegations or denials of the

adverse party’s pleadings, but rather must set forth specific facts showing that there is

a genuine issue for trial. Id.; Fed. R. Civ. P. 56(e)(2).

After the parties have presented their evidence, “the judge’s function is not

himself to weigh the evidence and determine the truth of the matter, but to determine

whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In evaluating the

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 19

evidence, the court must draw all inferences in the light most favorable to the non-

moving party. Matsushita, 475 U.S. at 587. “The mere existence of a scintilla of

evidence in support of the [non-moving party’s] position will be insufficient [to defeat

a motion for summary judgment]; there must be evidence on which the jury could

reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

That Defendants’ motions for summary judgment were based on claims of

absolute and qualified immunity does not affect the standard of review that applies. See

Gregory, 444 F.3d at 737. Whether a defendant is entitled to absolute or qualified

immunity from liability under 42 U.S.C. § 1983 is a legal question that this Court

reviews de novo. Id. at 737, 742.

IV.

Having determined that we have jurisdiction to consider Defendants’

interlocutory appeals and settled the standard of review that applies, we now turn to the

merits of Defendants’ claims. First, we consider the qualified and absolute immunity

claims raised in Case No. 07-2115, the appeal of the City of Warren, Detective Ingles,

and Officer Schultz.

A. Qualified Immunity

“Government officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow, 457 U.S. at 818. “The central purpose of affording public officials

qualified immunity from suit is to protect them ‘from undue interference with their

duties and from potentially disabling threats of liability.’” Elder v. Holloway, 510 U.S.

510, 514 (1994) (quoting Harlow, 457 U.S. at 806).

In Williams v. Mehra, supra, this Court articulated a “tripartite” procedure for

evaluating claims of qualified immunity:

First, we determine whether a constitutional violation occurred; second,

we determine whether the right that was violated was a clearly

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 20

established right of which a reasonable person would have known;

finally, we determine whether the plaintiff has alleged sufficient facts,

and supported the allegations by sufficient evidence, to indicate that what

the official allegedly did was objectively unreasonable in light of the

clearly established constitutional rights.

186 F.3d at 691 (citing Dickerson, 101 F.3d at 1157-58). The first step in our inquiry,

then, is to consider the “threshold question” whether, “[t]aken in the light most favorable

to the party asserting the injury, do the facts alleged show the officer’s conduct violated

a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no constitutional

right would have been violated were the allegations established, there is no necessity for

further inquiries concerning qualified immunity.” Id. If a violation could be made out

on a favorable view of the parties’ submissions, however, we must then consider whether

the right was “clearly established.” “This inquiry, it is vital to note, must be undertaken

in light of the specific context of the case, not as a broad general proposition.” Id. “The

relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. Finally, and only if these first two elements are satisfied,

this Court “occasionally” has gone on to determine “‘whether the plaintiff offered

sufficient evidence to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights.’” Drogosch v.

Metcalf, 557 F.3d 372, 378 (6th Cir. 2008) (quoting Estate of Carter v. City of Detroit,

408 F.3d 305, 311 n.2 (6th Cir. 2005)).

In Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808 (2009), the Supreme Court

recently reconsidered the mandatory nature of the inquiry set forth in Saucier,

concluding that, “while the sequence set forth there is often appropriate, it should no

longer be regarded as mandatory.” Id. at 818. Acknowledging several drawbacks to the

sequence required under Saucier, the Court reasoned that “[t]he judges of the district

courts and the courts of appeals should be permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” Id. Although

rejecting the mandatory nature of the Saucier framework, the Court nevertheless

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 21

recognized that applying that framework “is often beneficial.” Id. In light of Pearson,

then, we still are required to address the same questions in conducting our qualified

immunity analysis, but now we are free to consider those questions in whatever order

is appropriate in light of the issues before us.

“Once the qualified immunity defense is raised, the burden is on the plaintiff to

demonstrate that the officials are not entitled to qualified immunity.” Silberstein v. City

of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Barrett v. Steubenville City Schools,

388 F.3d 967, 970 (6th Cir. 2004)).

B. Absolute Immunity

“More limited in application, but certainly broader in protection, is absolute

immunity, which the Supreme Court has held applies to the performance of certain

functions when those functions are integral to the functioning of our adversarial judicial

system.” Gregory, 444 F.3d at 738 (citing Briscoe, 460 U.S. at 345). In defining the

scope of the absolute immunity doctrine, the Supreme Court has employed a functional

test: “Those functions more ‘intimately associated with the judicial phase of the

criminal process’ are more likely to merit careful consideration for absolute immunity.

In contrast, those functions more ‘investigative’ in nature – searching for ‘clues and

corroboration’ – are more removed from the judicial process and merit only qualified

immunity.” Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)).

Unlike qualified immunity, “[t]he official seeking absolute immunity bears the

burden of showing that such immunity is justified for the function in question.” Buckley,

509 U.S. at 269.

C. Analysis

In his complaint, Moldowan seeks recovery under 42 U.S.C. § 1983 for various

alleged violations of his constitutional rights. Section 1983, however, “‘is not itself a

source of substantive rights,’ but merely provides ‘a method for vindicating federal

rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Consequently, to determine whether

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 22

Moldowan asserts a violation of a clearly established constitutional right, it is necessary

to examine the substantive rights underlying each of Moldowan’s remaining requests for

relief. See Baker, 443 U.S. at 140 (“The first inquiry in any § 1983 suit” is “to isolate

the precise constitutional violation with which [the defendant] is charged.”). That

Moldowan asserts claims under various constitutional provisions does not control our

inquiry. Rather, the critical question is whether the “legal norms” underlying those

claims implicate clearly established constitutional rights. See Mitchell, 472 U.S. at 528.

For that reason, we group and address Moldowan’s claims according to the conduct at

issue or the legal norms that underlie his various claims.

1. Counts IX, X, XI, XII — Brady Claims (Ingles)

Moldowan asserts a number of claims against Detective Ingles under the Fourth,

Fifth, Sixth, and Fourteenth Amendments based on Ingles’ alleged failure to disclose

exculpatory evidence. In particular, Moldowan contends that Ingles was required to

disclose exculpatory statements from Burroughs, including that Burroughs recalled

seeing four African-American males standing around Fournier on the morning that she

was discovered in Detroit and that Burroughs later overheard two of those men

discussing their involvement in the assault.5

Moldowan’s allegations, although asserted under various constitutional

provisions, present claims under Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the

Court held that “the suppression by the prosecution of evidence favorable to an accused

. . . violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The question

we confront here is whether Detective Ingles’ alleged suppression of Burroughs’

5

Although Detective Ingles disputed below whether he ever interviewed Burroughs, he concedes

the issue for purposes of this appeal. Therefore, that dispute does not affect our authority to consider the

purely legal questions at issue here.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 23

statements violated the same “legal norm” underlying the due process violation

recognized in Brady. We hold that it does.6

Detective Ingles argues that Moldowan cannot demonstrate that the Due Process

Clause imposes on the police a clearly established obligation to disclose exculpatory

information. Superficially, that argument has some appeal. To the extent that Brady

imposes an obligation on the state to disclose exculpatory evidence to the defense, courts

consistently have determined that this duty falls squarely on the prosecutor, not the

police. See Giglio v. United States, 405 U.S. 150, 154 (1972) (“[W]hether the

nondisclosure was a result of negligence or design, it is the responsibility of the

prosecutor.”); Lindsay v. Bogle, 92 F. App’x 165, 170 (6th Cir. 2004) (stating that “the

Brady obligation applies only to prosecutors”). In Kyles v. Whitley, 514 U.S. 419

(1995), for instance, the Supreme Court explained that “the individual prosecutor,” who

“alone can know what is undisclosed, must be assigned the consequent responsibility to

gauge the likely net effect of all such evidence and make disclosure when the point of

‘reasonable probability’ is reached.” Id. at 437; see also Strickler v. Greene, 527 U.S.

263, 281 (1999) (recognizing “the special role played by the American prosecutor in the

search for truth in criminal trials”). In fact, the Supreme Court has placed the

responsibility to manage the state’s disclosure obligations solely on the prosecutor

despite acknowledging that “no one doubts that police investigators sometimes fail to

inform a prosecutor of all they know.” Kyles, 514 U.S. at 438.

This well-established rule, however, does not resolve whether the police have a

concomitant or derivative duty under the constitution to turn potentially exculpatory

material over to the prosecutor. In fact, Moldowan acknowledges that the duty to

“disclose” exculpatory materials to defense counsel rests on the prosecutor alone, but

nevertheless maintains that the police have an analogous, but just as constitutionally-

significant, obligation to turn such materials over to the prosecutor’s office. Underlying

Moldowan’s argument is the valid concern that, if the police have no constitutional

6

However, we reject Moldowan’s attempt to construe these claims as substantive due process

claims, as they more properly are understood as procedural due process violations. See Brady, 373 U.S.

at 87; Graham, 490 U.S. at 395.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 24

obligation in this regard, then the state could sidestep its constitutionally-mandated

disclosure obligations by maintaining an unstated, but nevertheless pervasive, wall of

separation between the prosecutor’s office and the police with regard to the existence of

potentially exculpatory evidence. Ignoring the burdens that the Constitution places on

the police in this context also creates a very serious risk that police officers who conceal

or withhold evidence that falls within Brady’s ambit will never be held accountable for

the independent “deprivation of any rights, privileges, or immunities secured by the

Constitution,” 42 U.S.C. § 1983, that their conduct causes.

As the concurrence correctly notes, however, the Supreme Court already has

addressed the first of these concerns, at least to a certain extent, by imposing on the

prosecutor “a duty to learn of any favorable evidence known to the others acting on the

government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437. In other

words, even though the state’s obligation under Brady is managed by the prosecutor’s

office, that obligation “applies to relevant evidence in the hands of the police, whether

the prosecutors knew about it or not, whether they suppressed it intentionally or not, and

whether the accused asked for it or not.” Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir.

2009) (citations omitted); Strickler, 527 U.S. at 280-81 (Brady “encompasses evidence

‘known only to police investigators and not to the prosecutor’” (quoting Kyles, 514 U.S.

at 438)).

Contrary to Detective Ingles’ suggestion, however, this does not imply that the

police have no role to play in ensuring that the state complies with its obligations under

Brady, or that the police cannot commit a constitutional violation analogous to the

deprivation recognized in Brady. See Banks v. Dretke, 540 U.S. 668, 675-76 (2004)

(“When police or prosecutors conceal significant exculpatory or impeaching material in

the State’s possession, it is ordinarily incumbent on the State to set the record straight.”

(emphasis added)). On the contrary, although the prosecutor is the state’s “official

representative . . . in the prosecution of the case,” we have recognized that the police

“also play[] an active role in the prosecution.” Hilliard v. Williams, 516 F.2d 1344, 1350

(6th Cir. 1975), vacated in part, 424 U.S. 961, aff’d on remand, 540 F.2d 220 (6th Cir.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 25

1976); see also Walker v. Lockhart, 763 F.2d 942, 958 (8th Cir. 1985) (“Police are

treated as an arm of the prosecution for Brady purposes.”). Because the prosecutor’s

office generally lacks its own investigative machinery, prosecutors often are entirely

dependent on the police to turn over the fruits of their investigation. As a result of this

interdependence, the police play a different, but no less significant role in the state’s

“search for truth in criminal trials.” Strickler, 527 U.S. at 281.

Because prosecutors rely so heavily on the police and other law enforcement

authorities, the obligations imposed under Brady would be largely ineffective if those

other members of the prosecution team had no responsibility to inform the prosecutor

about evidence that undermined the state’s preferred theory of the crime. As a practical

matter then, Brady’s ultimate concern for ensuring that criminal defendants receive a

“fundamentally fair” trial, see United States v. Bagley, 473 U.S. 667, 675 (1985)

(explaining that the “purpose” of the Brady rule is “to ensure that a miscarriage of justice

does not occur”), demands that “Brady’s protections also extend to actions of other law

enforcement officers such as investigating officers,” White v. McKinley, 519 F.3d 806,

814 (8th Cir. 2008). Although this Court has not yet directly addressed the issue, a

number of our decisions support this conclusion. See, e.g., Gregory, 444 F.3d at 743-45

(dismissing appeal from denial of qualified immunity in the context of Brady claims

against police officers and forensic medical examiners); Spurlock v. Satterfield, 167 F.3d

995, 1005-06 (6th Cir. 1999) (relying on Brady to conclude that plaintiff had raised

claims against a police officer that implicated clearly established constitutional rights);

cf. Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 361 (6th Cir. 1997) (finding

sheriff’s department’s failure to turn patently exculpatory information over to the

prosecutor resulted in “substantial injustice” which warranted a new trial).

In addition to this practical justification, it is evident that the constitutional

principles recognized in Brady apply just as equally to similar conduct on the part of

police, and thus support our recognizing that the police can commit a constitutional

deprivation analogous to that recognized in Brady by withholding or suppressing

exculpatory material. “Under the Due Process Clause of the Fourteenth Amendment,

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 26

criminal prosecutions must comport with prevailing notions of fundamental fairness.”

California v. Trombetta, 467 U.S. 479, 485 (1984); Lisenba v. California, 314 U.S. 219,

236 (1941) (“The aim of the requirement of due process is not to exclude presumptively

false evidence, but to prevent fundamental unfairness in the use of evidence, whether

true or false.”). The “overriding concern” in defining the contours of the state’s

disclosure obligations under the Due Process Clause, therefore, must be “the justice of

the finding of guilt.” United States v. Agurs, 427 U.S. 97, 112 (1976). As far as the

Constitution is concerned, a criminal defendant is equally deprived of his or her due

process rights when the police rather than the prosecutor suppresses exculpatory

evidence because, in either case, the impact on the fundamental fairness of the

defendant’s trial is the same.

Although the prosecutor undoubtedly plays a “special role” in “the search for

truth in criminal trials,” Strickler, 527 U.S. at 281, the police also play a unique and

significant role in that process, and thus also are bound by the government’s

constitutional obligation to “ensure that a miscarriage of justice does not occur,” Bagley,

473 U.S. at 675. As the Fourth Circuit explained persuasively in Barbee v. Warden,

Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964):

The police are also part of the prosecution, and the taint on the trial is no

less if they, rather than the State’s Attorney, were guilty of the

nondisclosure . . . The duty to disclose is that of the state, which

ordinarily acts through the prosecuting attorney; but if he too is the

victim of police suppression of the material information, the state’s

failure is not on that account excused.

Id. at 846. In other words, because the police are just as much an arm of the state as the

prosecutor, the police inflict the same constitutional injury when they hide, conceal,

destroy, withhold, or even fail to disclose material exculpatory information.7

While the concurrence is correct that the Supreme Court has held that,

technically speaking, the government’s “disclosure” obligations fall to and must be

7

Although the concurrence acknowledges that the fundamental concern of the Due Process Clause

is to ensure “the fairness of criminal trials,” slip op. at 61, it loses sight of the fact that the conduct of the

police can jeopardize the fairness of a criminal trial just as much as that of the prosecutor.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 27

managed by the prosecutor, Kyles, 514 U.S. at 437 (emphasis added), that argument

overlooks that the Court’s decisions also make clear that the constitutional concerns

underlying Brady reach more broadly to preclude other governmental “authorities” from

making a “calculated effort to circumvent the disclosure requirements established by

Brady [] and its progeny,” Trombetta, 467 U.S. at 488. As Judge Murnaghan succinctly

explained in his dissent in Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc):

Of course, the manner in which prosecutors and police officers comply

with Brady is different, reflecting their different functions in the criminal

justice system. Police officers do not disclose evidence to criminal

defendants directly. Instead, the police accumulate evidence and then

ministerially deliver it to the prosecutor. The prosecutor then makes a

discretionary legal judgment about whether the evidence is material and

exculpatory, such that Brady compels its disclosure to the defendant.

Id. at 664. Although the police and prosecutor play different roles in this process, “[t]his

functional differentiation . . . should not obscure the fact that Brady creates a singular

constitutional duty, which prosecutors and police officers are capable of breaching in

factually different ways.” Id.

In addition to these practical justifications and constitutional considerations, the

police’s obligation to turn over material and exculpatory evidence also follows

inexorably from the Supreme Court’s recognition that the police have a constitutional

duty to preserve such evidence. In Trombetta, the Supreme Court observed that

“[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty

must be limited to evidence that might be expected to play a significant role in the

suspect’s defense.” 467 U.S. at 488. The Court recognized that same duty in Arizona

v. Youngblood, 488 U.S. 51 (1988), confirming that the Constitution imposes at least a

limited “obligation” on the police “to preserve evidence . . . [that] could form the basis

for exonerating the defendant.” Id. at 58. If the Constitution imposes a “duty” and

“obligation” on the police to preserve such evidence, that duty, no matter how limited,

certainly must preclude the police from concealing that exact same information from the

prosecutor, the defense, and the courts. Why else would the police be required to

preserve such evidence if they had no attendant obligation to reveal its existence? Brady

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 28

and Trombetta would impose hollow obligations indeed if the Constitution did not also

preclude police officers from concealing the same evidence that they are not permitted

to destroy and that the prosecutor is required to disclose.

The concurrence argues that the police cannot share in the state’s obligations

under Brady because “the Brady duty is uniquely tailored to prosecutors” in that it

requires the disclosure of exculpatory evidence that is constitutionally “material,” and

thus requires the exercise of “a judgment that prosecutors, not police officers, are trained

to make.”8 Slip op. at 60. This argument misses the point. We agree that determining

whether a particular piece of evidence is “material,” as defined in Bagley, 473 U.S. at

682, generally requires the exercise of legal judgment that the prosecuting attorney is

better trained, not to mention better positioned, to make. See Kyles, 514 U.S. at 437.

However, that implies only that the prosecutor should be assigned the responsibility of

determining what evidence ultimately should be disclosed to the defendant; it does not

imply, as our colleague suggests, that the police cannot be expected to recognize and

determine what evidence should be preserved and turned over to the prosecutor. On the

contrary, the Supreme Court already has assumed as much in concluding that the police

have a constitutionally-significant “duty” to “preserve evidence . . . that might be

expected to play a significant role in the suspect’s defense.” Trombetta, 467 U.S. at 488-

89 (holding that the police were not obliged to preserve evidence because the

“exculpatory value” of the evidence was not “apparent”). If the police can be expected

to recognize what evidence must be preserved, certainly it is not too burdensome to

demand that they simply turn that same information over to the prosecutor’s office.

8

In making this argument, the concurrence relies heavily on Judge Wilkinson’s concurring

opinion in Jean v. Collins, but does not even attempt to wrestle with Judge Murnaghan’s persuasive

response to that argument:

This observation is a strawman that confuses the crucial issue. It presupposes that when

a police officer discloses evidence to a prosecutor, the act is functionally identical to the

discretionary legal judgment prosecutors make when disclosing evidence directly to

criminal defendants. In reality, the two acts are incommensurable. Requiring police

officers to disclose evidence to prosecutors does not require technical legal expertise

because the act is essentially ministerial, not discretionary. The police officer’s duty is

not to determine whether the evidence is material and exculpatory. His duty is simply

to collect the evidence and to disclose all of it to the prosecutor, who then makes the

discretionary legal judgment about its material, exculpatory attributes.

221 F.3d at 669 (Murnaghan, J., dissenting).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 29

For most of the same reasons we have laid out here, virtually every other circuit

has concluded either that the police share in the state’s obligations under Brady, or that

the Constitution imposes on the police obligations analogous to those recognized in

Brady.9 See, e.g., Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999) (“One standard police

function is to provide information to the prosecutor and the courts. Thus, a police officer

sometimes may be liable if he fails to apprise the prosecutor or a judicial officer of

known exculpatory information.”); Hart v. O’Brien, 127 F.3d 424, 446-47 (5th Cir.

1997) (“[A] plaintiff states a section 1983 claim against a police officer who, after

learning of ‘patently exculpatory evidence,’ deliberately fails to disclose it to the

prosecutor.” (citation omitted)); McMillan v. Johnson, 88 F.3d 1554, 1569 (11th Cir.

1996) (“Our case law clearly established that an accused’s due process rights are

violated when the police conceal exculpatory or impeachment evidence.”) (collecting

cases); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992) (“The police

satisfy their obligations under Brady when they turn over exculpatory evidence to the

prosecutors.”); Geter v. Fortenberry, 882 F.2d 167, 171 (5th Cir. 1989) (affirming denial

of qualified immunity for police officer defendant with respect to plaintiff’s claim that

the officer failed to disclose exculpatory evidence); Jones v. City of Chicago, 856 F.2d

985, 995 (7th Cir. 1988) (“Brady v. Maryland does not require the police to keep written

records of all their investigatory activities; but attempts to circumvent the rule of that

case by retaining records in clandestine files deliberately concealed from prosecutors and

defense counsel cannot be tolerated.”). As this litany of cases indicates, the courts

consistently have rejected the notion that the police have no role to play in carrying out

the state’s constitutionally-mandated obligations in this area. Although the prosecutor’s

office bears primary responsibility for carrying out the state’s actual “disclosure”

obligations under Brady, the police bear, as the Eighth Circuit has put it, an equally

important “Brady-derived” responsibility to turn over potentially exculpatory evidence

to the prosecutor’s office. White, 519 F.3d at 814. Semantic quibbles aside, there is no

9

“[W]hile analogous decisions from our sister circuits are not binding, we have repeatedly

recognized their persuasive authority.” See Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502

F.3d 545, 553 n.6 (6th Cir. 2007).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 30

doubt that the police are just as capable of depriving criminal defendants of a

fundamentally fair trial by suppressing exculpatory evidence.

Having determined that the due process guarantees recognized in Brady also

impose an analogous or derivative obligation on the police, we next must determine

whether that obligation was “clearly established” as of the date of Detective Ingles’

alleged violation of that duty. In determining whether a right is clearly established, we

“may rely on decisions of the Supreme Court, decisions of this court and courts within

this circuit, and in limited instances, on decisions of other circuits.” Spurlock, 167 F.3d

at 1006; Ohio Civil Serv. Employees Assoc. v. Seiter, 858 F.2d 1171, 1177 (6th Cir.

1988). In evaluating the relevant case law, we must determine whether the right has

been recognized “in a more particularized, and hence more relevant, sense: The contours

of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

In other words, “the unlawfulness must be apparent.” Id.

Decisions from other circuits recognizing the type of “Brady-derived” claims that

Moldowan asserts here date back as far as 1964. See Barbee, 331 F.2d at 846. In fact,

at least three circuits recognized prior to August 1990, the earliest possible date for

Detective Ingles’ involvement in the case, that this right was clearly established. See,

e.g., id.; Geter, 882 F.2d at 171; Jones, 856 F.2d at 995. Although our recognition of

this type of a claim is more recent and less specific, the overwhelming number of

decisions from other circuits recognizing this type of claim satisfies us that any

reasonable police officer would know that suppressing exculpatory evidence was a

violation of the accused’s constitutional rights.

Having determined that Moldowan’s claims against Detective Ingles implicate

a clearly established constitutional right, we next must determine whether, taking the

facts alleged by Moldowan as true, Moldowan can make out a violation of this right. At

Moldowan’s retrial, Jerry Burroughs testified that he witnessed four African-American

males standing in the street around Fournier’s body in the early morning hours of

August 9, 1990. Burroughs also testified that he witnessed one of the men kick her, and

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 31

that shortly thereafter he saw the men drive away from the scene in a light-colored van.

Burroughs also testified that he later overheard two of the men he saw standing around

Fournier’s body talking about the incident and claiming involvement in the assault.

Burroughs testified that he reported this information to a police officer, but the officer

“just acted like I [was] saying nothing.” (J.A. 2157.) Although Burroughs could not

remember the name of the officer with whom he spoke, Moldowan claims that it must

have been Detective Ingles. It is without question that Detective Ingles did not report

any such information to the Macomb County Prosecutor, or to defense counsel for that

matter.

Construing these facts in the light most favorable to Moldowan, it is evident that

Burroughs’ statements cast serious doubt on, if not entirely discredit, Fournier’s

identification of Moldowan as one of her attackers, an issue that undoubtedly was one

of the most important elements of the state’s case. Burroughs’ statements thus should

have been disclosed to the defense as they undoubtedly “would tend to exculpate”

Moldowan. See Brady, 373 U.S. at 88.

Defendants contend that, even if we were to conclude that the legal norms

underlying Brady can support an analogous or derivative claim against a police officer,

Moldowan cannot prevail on the facts presented here because he cannot show that

Detective Ingles withheld these statements in “bad faith.” In particular, Defendants

argue that, in Davidson v. Cannon, 474 U.S. 344 (1986), and Daniels v. Williams, 474

U.S. 327 (1986), the Supreme Court held that the Due Process Clause is not “triggered

by lack of due care” by government officials, Daniels, 474 U.S. at 333, and thus “where

a government official is merely negligent in causing the injury, no procedure for

compensation is constitutionally required,” Davidson, 474 U.S. at 347.

Although this Court has not addressed the issue directly, see Gregory, 444 F.3d

at 743-44, at least two of our sister circuits have suggested that, in order to assert such

a claim against the police, at least under § 1983, a defendant-turned-plaintiff must

demonstrate that the police acted in “bad faith.” See, e.g., Porter v. White, 483 F.3d

1294 (11th Cir. 2007) (“hold[ing] that the no-fault standard of care Brady imposes on

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 32

prosecutors in the criminal or habeas context has no place in a § 1983 damages action

against a law enforcement official in which the plaintiff alleges a violation of due

process”); Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) (“[T]he recovery of

§ 1983 damages requires proof that a law enforcement officer other than the prosecutor

intended to deprive the defendant of a fair trial.”). At least one other circuit, however,

previously held that no such showing of bad faith is required:

Failure of the police to reveal such material evidence in their possession

is equally harmful to a defendant whether the information is purposely,

or negligently, withheld. And it makes no difference if the withholding

is by officials other than the prosecutor. The police are also part of the

prosecution, and the taint on the trial is no less if they, rather than the

State’s Attorney, were guilty of the nondisclosure. If the police allow the

State’s Attorney to produce evidence pointing to guilt without informing

him of other evidence in their possession which contradicts this

inference, state officers are practicing deception not only on the State’s

Attorney but on the court and the defendant. ‘The cruelest lies are often

told in silence.’ If the police silence as to the existence of the reports

resulted from negligence rather than guile, the deception is no less

damaging.

Barbee, 331 F.2d at 846.10

The question we have before us is a difficult one, with, as the concurrence

rightfully points out, significant policy implications on both sides. But our job is not to

craft the law to fit our policy views, it is to determine what the law requires.

Notwithstanding the concurrence’s argument to the contrary, the cases in this area

clearly establish that police actions taken in bad faith are not the only species of police

conduct that can deprive criminal defendants of the due process guaranteed by the

Constitution. We acknowledge that a number of courts, including the Supreme Court,

have held that a showing of bad faith is required to prevail on a claim that the police

deprived a defendant of due process by concealing or withholding evidence that is only

10

It is unclear whether the rule announced in Barbee remains good law after Jean v. Collins.

Because the en banc Fourth Circuit was “equally divided” in Jean, it issued a per curiam order affirming

the judgment of the district court without opinion. See 221 F.3d at 658. Although Judge Wilkinson’s

concurring opinion ignores the holding of Barbee and asserts that bad faith is required in this context, see

id. at 660 (“[I]t would be impermissible to hold the police liable for due process violations under § 1983

where they have acted in good faith.”), that position did not garner the support of a majority of the en banc

Fourth Circuit.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 33

“potentially useful.” But, where the police are aware that the evidence in their

possession is exculpatory, the Supreme Court’s decisions in this area indicate that the

police have an absolute duty to preserve and disclose that information. The critical issue

in determining whether bad faith is required thus is not whether the evidence is withheld

by the prosecutor or the police, but rather whether the exculpatory value of the evidence

is “apparent” or not.

In Agurs, for instance, the Court held that prosecutors are required to turn over

to the defense evidence that was “so clearly supportive of a claim of innocence that it

gives the prosecution notice of a duty to produce” even without a defense request. 427

U.S. at 107. The Court explained that the constitutional violation arose not because of

the title of the government official that withheld the evidence, but rather because the

failure to turn over such evidence “deprived the defendant of a fair trial.” Id. at 108. As

the Court explained: “Nor do we believe the constitutional obligation is measured by

the moral culpability, or the willfulness, of the prosecutor. If the suppression of

evidence results in constitutional error, it is because of the character of the evidence, not

the character of the prosecutor.” Id. at 110.

In other words, the critical issue in determining whether government conduct

deprived a criminal defendant of a fair trial is the nature of the evidence that was

withheld; it emphatically is not the mental state of the government official who

suppressed the evidence. That the due process inquiry is concerned with the nature of

the evidence rather than the good or bad faith of the state actor reflects, as the Court

emphasized, the Due Process Clause’s “overriding concern with the justice of the finding

of guilt.” Id. at 112; accord Napue v. Illinois, 360 U.S. 264, 270 (1959) (holding that

the knowing use of perjured testimony violates the Due Process Clause even when “the

district attorney’s silence was not the result of guile or a desire to prejudice . . . for its

impact was the same, preventing, as it did, a trial that could in any real sense be termed

fair” (citation omitted) (emphasis added)). That same reasoning is reflected in Brady’s

holding that “the suppression by the prosecution of evidence favorable to an accused . . .

violates due process where the evidence is material either to guilt or punishment,

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 34

irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87 (emphasis

added). Although both Agurs and Brady involved due process violations by the

prosecutor rather than the police, the critical lesson of those decisions is that the

constitutional violation arose because of the nature of the evidence, not the state of mind

of the state actor. See Strickler, 527 U.S. at 288 (“[U]nder Brady an inadvertent

nondisclosure has the same impact on the fairness of the proceedings as deliberate

concealment.”).

Notwithstanding the reasoning underlying Agurs and Brady, the concurrence

contends that Moldowan’s due process claim should be evaluated under the “bad-faith

standard” set forth in Arizona v. Youngblood, which the concurrence insists “requires

proof that the officer engaged in ‘a conscious effort to suppress exculpatory evidence.’”

Slip op. at 65 (quoting Trombetta, 467 U.S. at 488). This heightened standard is

justified, the concurrence argues, because extending Brady’s “absolute duty” to law

enforcement officers who do not enjoy absolute immunity will “unleash” a flood of

lawsuits “that will be very difficult to stop short of trial.” Slip op. at 62. We

respectfully disagree.

However, Youngblood does not impose a bad faith requirement on any and all

due process claims brought against police officers. On the contrary, just like Brady and

Agurs, the Court’s decision in Youngblood confirms that where “material exculpable

evidence” is concerned, the mental state of the government official withholding that

evidence is not relevant to determining whether a due process violation has occurred.

488 U.S. at 57-58. In discussing the scope of the police’s duty to preserve evidence, the

Court contrasted the state’s absolute obligation to disclose “material exculpable

evidence” with its much more limited obligation to preserve “potentially useful

evidence,” holding that a showing of bad faith was required to show a constitutional

violation only in the latter context. Id. at 57-58. Although, as the concurrence correctly

points out, the Court rejected the bad-faith requirement in the context of due process

guarantees “as interpreted in Brady,” that turn of phrase does not bear the weight that our

colleague places on it. Far from suggesting that the difference in the applicable

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 35

standards turns on the job title of the government official who destroyed or concealed

the evidence in question, the Court’s decision in Youngblood actually explained:

Part of the reason for the difference in treatment is found in the

observation made by the Court in Trombetta, that “[w]henever potentially

exculpatory evidence is permanently lost, courts face the treacherous task

of divining the import of materials whose contents are unknown and, very

often, disputed.” Part of it stems from our unwillingness to read the

“fundamental fairness” requirement of the Due Process Clause, as

imposing on the police an undifferentiated and absolute duty to retain and

to preserve all material that might be of conceivable evidentiary

significance in a particular prosecution. We think that requiring a

defendant to show bad faith on the part of the police both limits the extent

of the police’s obligation to preserve evidence to reasonable bounds and

confines it to that class of cases where the interests of justice most clearly

require it, i.e., those cases in which the police themselves by their conduct

indicate that the evidence could form a basis for exonerating the

defendant.

Id. at 57-58 (citations omitted). In other words, Youngblood confirms that the “reason

for the difference” in the applicable standards is the nature of the evidence at issue, not

the title of the government official or whether the challenged conduct relates to the

state’s failure to disclose evidence rather that its failure to preserve it. See Illinois v.

Fisher, 540 U.S. 544, 549 (2004) (explaining that “the applicability of the bad-faith

requirement in Youngblood depended . . . on the distinction between ‘materially

exculpatory’ evidence and ‘potentially useful’ evidence”); United States v. Wright, 260

F.3d 568, 570 (6th Cir. 2001) (“Separate tests are applied to determine whether the

government’s failure to preserve evidence rises to the level of a due process violation in

cases where material exculpatory evidence is not accessible versus cases where

‘potentially useful’ evidence is not accessible.”).

Unlike the destruction or concealment of merely “potentially useful” evidence,

the loss of “materially exculpatory” evidence directly threatens the fundamental fairness

of a criminal trial, and thus undoubtedly implicates the Due Process Clause. In “that

class of cases,” Youngblood says, “the interests of justice” simply impose a higher

burden on state actors, including the police. 488 U.S. at 58. That is true regardless of

whether the defendant is asserting a failure-to-preserve or a failure-to-disclose claim, and

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 36

regardless of whether the claim is being asserted against the prosecutor or the police.

See United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008) (stating, in the context

of a claim against a police officer, that “[t]he failure to preserve material exculpatory

evidence violates the defendant’s right to due process regardless of whether the

government acted in bad faith”); Wright, 260 F.3d at 570 (stating, in the context of a

claim against a fire investigator, that “[t]he destruction of material exculpatory evidence

violates due process regardless of whether the government acted in bad faith”).

Indeed, the only way to make sense of this critical passage from Youngblood is

to read the phrase “the police’s obligation” in the last sentence as referring to the

statement from the previous sentence regarding the police’s “undifferentiated and

absolute duty.” When given a proper reading, Youngblood thus confirms that the police

have “an undifferentiated and absolute duty to retain and preserve” certain evidence, but

that “[absolute] obligation” is limited to “those cases in which the police themselves by

their conduct indicate that the evidence could form a basis for exonerating the

defendant.”11

Simply put, where the evidence withheld or destroyed by the police falls into that

more serious category, the defendant is not required to make any further showing

regarding the mental state of the police. See Wright, 260 F.3d at 573 (Gilman, J.,

concurring) (“Thus, the first part of the Jobson test — good or bad faith — should be

irrelevant once the last two parts of the Jobson test are shown, because the Supreme

Court has expressly held that the determination of good or bad faith is irrelevant for

11

Our reading of Youngblood also finds support in the case law of our sister circuits. In

Olszewski v. Spencer, 466 F.3d 47 (1st Cir. 2006), for instance, the First Circuit declined to resolve this

issue, but observed that “[a] variety of other circuits have considered the relationship between Trombetta

and Youngblood and have concluded that (1) the destruction of ‘apparently exculpatory’ evidence does not

require a showing of bad faith but that (2) if the evidence is only ‘potentially useful,’ a bad-faith showing

is required.” Id. at 56 (citing United States v. Moore, 452 F.3d 382, 388 (5th Cir. 2006) (“impermissibly

withheld evidence must be either (1) material and exculpatory or (2) only potentially useful, in

combination with a showing of bad faith on the part of the government”); United States v. Estrada, 453

F.3d 1208, 1212-13 (9th Cir. 2006) (only requiring a showing of bad faith when the evidence is

“potentially exculpatory, as opposed to apparently exculpatory”); Bullock v. Carver, 297 F.3d 1036, 1056

(10th Cir. 2002) (“A defendant can obtain relief under the Due Process Clause when he can show that a

police department destroyed evidence with ‘an exculpatory value that was apparent before [it] was

destroyed.’ . . . Where, however, the police only failed to preserve ‘potentially useful’ evidence that might

have been exculpatory, a defendant must prove that the police acted in bad faith by destroying the

evidence.” (internal citations omitted)). Although the decisions of the Fifth, Ninth, and Tenth Circuits are

not binding, they lend strong support to our interpretation of this passage from Youngblood.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 37

materially exculpatory evidence.”). As the Court explained in Youngblood, “[t]he

presence or absence of bad faith by the police for purposes of the Due Process Clause

must necessarily turn on the police’s knowledge of the exculpatory value of the evidence

at the time it was lost or destroyed.” Id. at 56 n.*.

By overlooking this critical distinction, the concurrence misinterprets the nature

of the due process inquiry required under these circumstances. In Trombetta, the

Supreme Court suggested, as explained above, that government “authorities” run afoul

of the Constitution when they make “a calculated effort to circumvent the disclosure

requirements established by Brady v. Maryland and its progeny.” 467 U.S. at 488. The

Court also observed in that case that “[t]he record contains no allegation of official

animus towards respondents or of a conscious effort to suppress exculpatory evidence.”

Id. Emphasizing these scattered statements, the concurrence argues that a § 1983

plaintiff asserting any due process claim against the police is required to demonstrate

bad faith. If the concurrence means by “bad faith” anything more than that the police

were aware of the exculpatory value of the evidence at issue, however, then we

respectfully disagree.

What the concurrence overlooks is that Trombetta involved evidence that was

only potentially useful to the defense, not evidence that was demonstrably exculpatory.12

Id. at 489 (concluding that the evidence in question did not satisfy the “materiality”

requirement because its “exculpatory value” was not “apparent before the evidence was

destroyed”); see also Youngblood, 488 U.S. at 60 (Stevens, J., concurring) (“In

Trombetta, this Court found no due process violation because ‘the chances [were]

extremely low that preserved [breath] samples would have been exculpatory.’” (quoting

Trombetta, 467 U.S. at 489) (alterations in original)). In fact, the Court’s decision in

Trombetta even makes clear that the “constitutional materiality” of the withheld

12

Even the decisions from the Eighth Circuit on which the concurrence relies involved evidence

that was only potentially useful. See White, 519 F.3d at 814 (“Brady’s protections also extend to actions

of other law enforcement officers such as investigating officers. However, an investigating officer’s failure

to preserve evidence potentially useful to the accused or their [sic] failure to disclose such evidence does

not constitute a denial of due process in the absence of bad faith.”); Villasana, 368 F.3d at 979 (observing

that the documents at issue “had neither exculpatory nor impeachment value”).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 38

evidence simply is “more important[]” than whether the police acted in good or bad

faith. 467 U.S. at 488; see also Youngblood, 488 U.S. at 65 (Blackmun, J., dissenting)

(“The determination in Trombetta that the prosecution acted in good faith and according

to normal practice merely prefaced the primary inquiry, which centers on the

‘constitutional materiality’ of the evidence itself.”).

The policy risks imagined by the concurrence also stem from this fundamental

misunderstanding of the “absolute” nature of the Brady obligation.13 In Bagley, the

Court explained that “the prosecutor is not required to deliver his entire file to defense

counsel, but only to disclose evidence favorable to the accused that, if suppressed, would

deprive the defendant of a fair trial.” 473 U.S. at 675; see also Agurs, 427 U.S. at 108

(“But to reiterate a critical point, the prosecutor will not have violated his constitutional

duty of disclosure unless his omission is of sufficient significance to result in the denial

of the defendant’s right to a fair trial.”). In other words, the Due Process Clause imposes

an “absolute duty” on the prosecutor only with regard to certain evidence, i.e. “material

exculpatory evidence.” See Youngblood, 488 U.S. at 57.

The central lesson of all of these cases is that the critical factor in determining

whether the state’s obligation is “absolute” turns on the nature of the evidence at issue,

not who destroyed or suppressed the evidence. The justification for imposing an

absolute duty where material and exculpatory evidence is at issue is clear enough: the

failure to preserve or disclose such evidence directly threatens the “fundamental

fairness” of a defendant’s criminal trial. See Youngblood, 488 U.S. at 58; Trombetta,

467 U.S. at 485; Lisenba, 314 U.S. at 236. Because that concern for fundamental

fairness is just as strong where a defendant claims that the police destroyed or

suppressed material evidence, see Branch, 537 F.3d at 589, there is no constitutionally-

supportable basis for applying a different standard and requiring courts to inquire into

the mental state of the police.

13

We also are highly skeptical of the concurrence’s dire warnings that rejecting the bad-faith

standard in this context will increase significantly the number of lawsuits against the police given that this

circuit already has rejected the notion that bad faith is required to assert other due process claims against

the police, including claims alleging that the police failed to preserve material exculpatory evidence. See

Branch, 537 F.3d at 589; Wright, 260 F.3d at 570.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 39

The only difference in the requisite inquiry is that, where the police are

concerned, the “exculpatory value” of the evidence must be “apparent.”14 Trombetta,

467 U.S. at 489. This additional burden, however, merely reflects that materiality is a

legal question that the police are not trained to make, and thereby accounts for the

practical concern that the police cannot be held accountable for failing to divine the

materiality of every possible scrap of evidence.15 See Youngblood, 488 U.S. at 58. It

does not imply, however, that the police are entirely shielded from liability unless a

defendant shows “bad faith.” Where the exculpatory value of a piece of evidence is

“apparent,” the police have an unwavering constitutional duty to preserve and ultimately

disclose that evidence.16 The failure to fulfill that obligation constitutes a due process

violation, regardless of the whether a criminal defendant or § 1983 plaintiff can show

that the evidence was destroyed or concealed in “bad faith.” The reason no further

showing of animus or bad faith is required is that, where the police have in their

possession evidence that they know or should know “might be expected to play a

significant role in the suspect’s defense,” Trombetta, 467 U.S. at 488, the destruction or

concealment of that evidence can never be done “in good faith and in accord with their

14

In Youngblood, the Court suggested that this additional burden was satisfied where “the police

themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.”

488 U.S. at 58.

15

To whatever limited extent our colleague’s policy concerns are justified, we think that the

ultimate result is not that the police will be held liable under § 1983 more often, but rather that the police

simply will opt to turn over more information to the prosecutor’s office in an attempt to minimize their

potential exposure to such suits. See Agurs, 427 U.S. at 108 (“Because we are dealing with an inevitably

imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately

until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of

disclosure.”). Although policy considerations do not factor into our decision, we note that this is an

outcome that should be encouraged given that prosecutors, not the police, should be making the decision

about what evidence must be disclosed to the defense. See United States v. Leon, 468 U.S. 897, 900-901

(1984) (recognizing overarching “goal” of establishing “procedures under which criminal defendants are

‘acquitted or convicted on the basis of all the evidence which exposes the truth’” (quoting Alderman v.

United States, 394 U.S. 165, 175 (1969)). After considering both perspectives, we conclude that the policy

considerations favor our approach because providing prosecutors a fuller picture of the evidence in any

given case will allow them to make more informed decisions about whether to disclose or withhold a

particular piece of evidence, which undoubtedly is a goal that should be encouraged. See Kyles, 514 U.S.

at 439 (“This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose

a favorable piece of evidence. This is as it should be.” (citation omitted)).

16

Contrary to the concurrence’s dire predictions, imposing this obligation on the police does not

create a significant, or even additional, burden. On the contrary, the Court already has concluded that it

is reasonable to expect that the police can recognize and preserve evidence that “might be expected to play

a significant role in the suspect’s defense.” Trombetta, 467 U.S. at 488. Asking the police simply to

disclose that same evidence to the prosecutor is no great burden.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 40

normal practice,” Killian v. United States, 368 U.S. 231, 242 (1961). Consequently,

requiring a criminal defendant or § 1983 plaintiff to show a “conscious” or “calculated”

effort to suppress such evidence would be superfluous.17

In any event, even if we were inclined to believe that bad faith was required, we

still would not conclude that Detective Ingles is entitled to summary judgment. Because

we must read the record in the light most favorable to Moldowan, we conclude that

Burroughs’ testimony, taken as a whole, provides sufficient evidence for Moldowan’s

claims to survive summary judgment because a jury could reasonably conclude that

Detective Ingles acted in bad faith. Although there is no direct evidence that Detective

Ingles acted intentionally in withholding these exculpatory statements, Burroughs’

testimony, at least when viewed in the light most favorable to Moldowan, provides

sufficient evidence for Moldowan’s claim to survive summary judgment. Despite

Detective Ingles’ insistence to the contrary, we lack the jurisdiction to consider his claim

that Burroughs never made any such statements to the police. See Gregory, 444 F.3d at

744-45 (“By arguing that the evidence establishes at most a negligent performance of

her duties, [defendant] is arguing disputed issues of fact to this Court. We cannot

entertain [defendant’s] arguments going to disputed issues of material fact on this

interlocutory appeal.”).

Detective Ingles also suggests that Moldowan cannot prevail on his Brady

claims because he cannot demonstrate prejudice. See Strickler, 527 U.S. 263, 281

(1999) (“[S]trictly speaking, there is never a real ‘Brady violation’ unless the

nondisclosure was so serious that there is a reasonable probability that the suppressed

evidence would have produced a different verdict.”). That issue, however, also involves

17

Nor is there any justification for imposing a higher burden because Moldowan asserts his due

process claim in the § 1983 context. See Parratt v. Taylor, 451 U.S. 527, 534 (1981) (“Nothing in the

language of § 1983 . . . limits the statute solely to intentional deprivations of constitutional rights.”); see

also id. at 535 (“[Section] 1983 affords a civil remedy for deprivations of federally protected rights . . .

without any express requirement of a particular state of mind.”). Although the Court’s decision in Daniels

overruled other aspects of Parratt, it expressly left undisturbed Parratt’s holding as to § 1983. See

Daniels, 474 U.S. at 329-30 (“In Parratt v. Taylor, we granted certiorari . . . to decide whether mere

negligence will support a claim for relief under § 1983. . . . We concluded that § 1983, unlike its criminal

counterpart, 18 U.S.C. § 242, contains no state-of-mind requirement independent of that necessary to state

a violation of the underlying constitutional right. We adhere to that conclusion.” (internal quotations and

citations omitted)).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 41

disputed issues of fact which are beyond our reach at this juncture. Johnson, 515 U.S.

at 313-18; Gregory, 444 F.3d at 744.

2. Counts XIII, XIV, and XV — Perjury (Ingles)

Moldowan also asserts claims against Detective Ingles under the Fifth, Sixth, and

Fourteenth Amendments based on Moldowan’s allegation that, during the first trial,

Ingles “committed perjury by testifying that he had prepared statements regarding any

evidence that was relevant to the case, when, in fact, he had failed to reduce Mr.

Burroughs[’] exculpatory statement to a written report.” (J.A. 293.) Detective Ingles

responds that he is entitled to absolute immunity for any testimony he offered at trial.

We agree.

Although government officials enjoy only qualified immunity as to their pretrial

conduct, “all witnesses — police officers as well as lay witness — are absolutely

immune from civil liability based on their trial testimony in judicial proceedings.”

Briscoe, 460 U.S. at 328. A witness is entitled to testimonial immunity “no matter how

egregious or perjurious that testimony was alleged to have been.” Spurlock, 167 F.3d

at 1001. Moreover, “the mere fact that plaintiffs may allege a conspiracy to render false

testimony, as opposed to simply alleging that one person testified falsely at trial, does

not waive absolute testimonial immunity.” Id. Accordingly, Detective Ingles is entitled

to absolute immunity for the testimony he offered at trial. That protection, however,

does not extend to Ingles’ non-testimonial conduct, “despite any connection these acts

might have to later testimony.” Gregory, 444 F.3d at 739.

In his complaint, as well before this Court, Moldowan asserts that Detective

Ingles cannot assert absolute testimonial immunity because he is the “complaining

witness.” Although there is a well-established exception to the doctrine of absolute

testimonial immunity “insofar as [an official] performed the function of a complaining

witness,” Kalina v. Fletcher, 522 U.S. 118, 131 (1997); see also Malley v. Briggs, 475

U.S. 335, 340-41 (1986), that exception does not extend to testimony delivered at trial.

See Vakilian, 335 F.3d at 516 (distinguishing between an officer’s role as a “complaining

witness” and a “testifying witness”); Spurlock, 167 F.3d at 1003-04 (distinguishing

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 42

between testimonial and pre-trial conduct). As with any witness, police officers enjoy

absolute immunity for any testimony delivered “at adversarial judicial proceedings.”

Gregory, 444 F.3d at 738.

Because Moldowan’s perjury claims are based entirely on Detective Ingles’ trial

testimony rather than conduct related to his role as the “complaining witness,” Ingles is

entitled to absolute immunity. This is true regardless of whether he previously signed

the arrest warrant as the complaining witness. Detective Ingles therefore is entitled to

summary judgment as to Counts XIII, XIV, and XV.

3. Count XXXI — Malicious Prosecution (Ingles)

In Count XXXI, Moldowan asserts a state law claim against Detective Ingles for

malicious prosecution. Under Michigan law, in order to state a prima facie case of

malicious prosecution, Moldowan “must prove: 1. Prior proceedings terminated in favor

of the present plaintiff; 2. Absence of probable cause for those proceedings; 3. Malice,

defined as a purpose other than that of securing the proper adjudication of the claim; and

4. A special injury that flows directly from the prior proceedings.” Payton v. City of

Detroit, 536 N.W.2d 233, 242 (Mich. Ct. App. 1995) (citing Young v. Motor City

Apartments Ltd., 350 N.W.2d 790, 792 (Mich. Ct. App. 1984)). Because Moldowan’s

2003 re-trial obviously terminated in his favor, the first element is satisfied.

As to the issue of probable cause, consideration of that element generally

involves factual disputes that extend beyond the scope of our jurisdiction on

interlocutory appeal. The Michigan Court of Appeals, however, has made clear that, as

a matter of law, the “[f]ailure to include all exculpatory facts is not adequate to sustain

a suit for malicious prosecution.” Payton, 536 N.W.2d at 242. Nevertheless, because

“‘[a]ctions for malicious prosecution are regarded by law with jealousy,’” Roblyer v.

Hoyt, 72 N.W.2d 126, 128 (Mich. 1955) (quoting Van Sant v. American Express Co.,

158 F.2d 924, 931 (3d Cir. 1946)), Michigan courts have held that “‘the only situation

in which an action for malicious prosecution would properly lie is where a police officer

knowingly swears to false facts in a complaint, without which there is no probable

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 43

cause.’” King v. Arbic, 406 N.W.2d 852, 858 (Mich. Ct. App. 1987) (quoting Belt v.

Ritter, 171 N.W.2d 581, 586 (Mich Ct. App. 1969)).

In asserting his malicious prosecution claim against Detective Ingles, Moldowan

alleges only that Ingles “failed, as the complaining witness, to make a full and fair

disclosure of the material facts and allowed the prosecution . . . to continue without

probable cause.” (J.A. 313.) Although Moldowan makes a vague and conclusory

allegation that the criminal complaint against him was “based on the . . . false evidence

provided by Defendant Ingles,” he never identifies any such “false evidence.” (J.A.

314.) Moldowan’s only substantive allegation in support of this claim is that Detective

Ingles “deliberately failed to convey [Burroughs’ statements] to the Macomb County

Prosecutor.” (J.A. 313.) Consequently, even accepting all of Moldowan’s allegations

as true, we conclude that, under Payton, a claim for malicious prosecution does not lie

under these circumstances.

4. Counts XXII and XXIII — Destruction of Evidence (Schultz)

In Counts XXII and XXIII, Moldowan asserts statutory and constitutional claims

against Officer Schultz based on the destruction of evidence introduced at Moldowan’s

first trial. It is undisputed that this evidence was destroyed in contravention of the trial

court’s explicit order that all such evidence was to be preserved “from this date forward

until further order of the Circuit Court, Michigan Court of Appeals, or Michigan

Supreme Court.” (J.A. 2613.)

In Count XXIII, Moldowan asserts a statutory claim under 18 U.S.C. § 1503.

That provision, however, provides criminal penalties for obstruction of justice through

corrupt conduct and threats of force; it does not provide a civil claim for monetary

damages. Nor does violation of that provision give rise to a claim for damages under

42 U.S.C. § 1983 because it does not contain explicit “rights-creating language.”

Johnson v. City of Detroit, 446 F.3d 614, 621 (6th Cir. 2006) (holding that “statutory

language that merely ‘benefits’ putative plaintiffs without specific rights-creating

language is insufficient to confer a personal federal right enforceable under § 1983”

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 44

(citing Gonzaga Univ. v. Doe, 536 U.S. 273, 282 (2002))). Accordingly, Officer

Schultz is entitled to summary judgment as to Count XXIII.

Moldowan’s constitutional claim in Count XXII, on the other hand, is a more

involved question. “To safeguard a defendant’s due process right to present a complete

defense, the Supreme Court has developed ‘what might loosely be called the area of

constitutionally guaranteed access to evidence.’” Wright, 260 F.3d at 570 (quoting

Trombetta, 467 U.S. at 485). In Trombetta, for instance, the Supreme Court recognized

that the Constitution may impose a duty on the state “to preserve evidence” where such

evidence “might be expected to play a significant role in the suspect’s defense.” 467

U.S. at 488.

Defendants again argue that, even though Trombetta recognized that the failure

to preserve evidence may give rise to a constitutional violation, summary judgment

nevertheless is warranted because Moldowan cannot demonstrate bad faith on the part

of Officer Schultz. In defining the contours of this “area of constitutionally guaranteed

access to evidence,” however, the Supreme Court has developed separate tests “to

determine whether the government’s failure to preserve evidence rises to the level of a

due process violation in cases where material exculpatory evidence is not accessible,

versus cases where [merely] ‘potentially useful’ evidence is not accessible.” Wright, 260

F.3d at 570 (citations omitted). As we explained above in regard to Moldowan’s claims

against Detective Ingles, see supra Part IV.C.1, the Supreme Court has recognized that

the state violates a suspect’s due process rights, regardless of the bad faith of the state

actor, where material exculpatory evidence is not preserved. See Trombetta, 467 U.S.

at 489. Accordingly, the more burdensome bad faith requirement does not apply where

material exculpatory evidence was lost or destroyed. See Wright, 260 F.3d at 571 (“The

destruction of material exculpatory evidence violates due process regardless of whether

the government acted in bad faith.”); see also Monzo v. Edwards, 281 F.3d 568, 580 (6th

Cir. 2002) (discussing bad faith requirement only in terms of potentially useful

evidence).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 45

In light of these distinct tests, Moldowan would need to demonstrate bad faith

only if the evidence at issue is merely “potentially useful.” At this stage, however, we

cannot resolve that disputed issue of fact. See Johnson, 515 U.S. at 313-18; Gregory,

444 F.3d at 744-45. Nevertheless, even assuming that the evidence at issue was

materially exculpatory, Moldowan still would be required to show that the “exculpatory

value” of the evidence was “apparent” before it was destroyed. Trombetta, 467 U.S. at

489.

Although the record indicates that the materiality of this evidence was, or at least

should have been, apparent to Detective Ingles and other investigating officers, there is

no evidence in the record that Officer Schultz had any knowledge whatsoever about the

nature of the evidence that he destroyed. According to Officer Schultz’s undisputed

testimony, he was assigned the entirely ministerial task of sending out annual inquiries

to the detectives in charge of each case, asking whether the detective wanted the

evidence being held in the property room “held, destroyed or released.” Schultz testified

that he had no involvement in the Moldowan case, had no knowledge of what type of

evidence was being held in the property room, and was not aware of the court order

requiring that evidence from the first trial be preserved. Even read in the light most

favorable to Moldowan, there simply is no evidence that Officer Schultz had any idea

that the evidence he destroyed “could form a basis for exonerating the defendant.”

Youngblood, 488 U.S. at 58. We therefore reverse the district court’s denial of summary

judgment as to Count XXII.

5. Counts XXIV and XXVI — Municipal Liability (City of Warren)

Moldowan also asserts various claims against the City of Warren and the Warren

Police Department. Because the district court dismissed the Department as a defendant

and Moldowan did not appeal that ruling, only the City’s susceptibility to suit is before

us. In Count XXIV, Moldowan claims that the City is liable under § 1983 for failing to

adequately train its police officers regarding the constitutional rights of criminal

defendants. In Count XXVI, Moldowan claims that the City is liable because an

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 46

unidentified individual with “policy-making authority” ordered the destruction of

evidence in contravention of the trial court’s order.

Because qualified immunity is unavailable in § 1983 claims against a

municipality, see Pearson, 129 S. Ct. at 822 (citing County of Sacramento v. Lewis, 523

U.S. 833, 841 n.5 (1998)), the City instead argues that Moldowan cannot establish

municipal liability on any of these claims because he cannot establish an underlying

deprivation of a constitutional right. As explained above, however, we find that

Moldowan’s failure-to-disclose claims against Detective Ingles do implicate clearly

established due process rights. Moreover, “[t]he courts recognize a systematic failure

to train police officers adequately as custom or policy which can lead to city liability.”

Gregory, 444 F.3d at 753 (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

This Court consistently has recognized that a plaintiff may establish municipal liability

by showing “a policy of inadequate training or supervision,” including “a policy of

tolerating federal rights violations [that] is unwritten but nevertheless entrenched.”

Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (citing Doe v.

Claiborne County, 103 F.3d 495, 508 (6th Cir. 1996)). In light of this controlling

authority, we conclude that Moldowan’s allegations, when taken as true, sufficiently

establish that the City’s alleged failure to adequately train its officers potentially violated

his constitutional rights. As the Supreme Court consistently has recognized, “a city can

be liable under § 1983 for inadequate training of its employees.” Harris, 489 U.S. at

388.

In discussing the “failure-to-train” theory of municipal liability, the Supreme

Court explained in Harris that “the focus must be on [the] adequacy of the training

program in relation to the tasks the particular officers must perform.” Id. at 390.

Although Harris involved a city’s failure to train its officers to determine whether a

detainee required medical care, the Supreme Court spoke more broadly, noting that “it

may happen that in light of the duties assigned to specific officers or employees the need

for more or different training is so obvious, and the inadequacy so likely to result in the

violation of constitutional rights, that the policymakers of the city can reasonably be said

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 47

to have been deliberately indifferent to the need.” Id. The Court noted that this theory

of liability is an issue “on which the Courts of Appeals have all agreed,” collecting cases

in a broad array of areas. Id. at 388 & n.6.

Because we already have determined that the police have a duty to preserve and

turn over to the prosecutor evidence that the police recognize as having exculpatory

value or where the exculpatory value of the evidence is apparent, Harris dictates that the

City has a corresponding obligation to adequately train its officers in that regard.18 See

id. at 390 (recognizing that a city may be liable for failing to provide adequate training

“in light of the duties assigned to specific officers or employees”); Brady, 187 F.3d at

114 (noting that properly handling exculpatory evidence is a “standard police function”).

As to Count XXVI, we also must determine whether Moldowan can establish

municipal liability based on the decisions an unidentified “individual having final

policy-making authority.”19 In Monell v. New York City Department of Social Services,

436 U.S. 658 (1978), the Supreme Court held that local government units could be held

liable under § 1983 for deprivations of federal rights, but concluded that § 1983 did not

support respondeat superior liability, reasoning that “Congress did not intend

municipalities to be held liable unless action pursuant to official municipal policy of

some nature caused a constitutional tort.” Id. at 691. In Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) (plurality opinion), however, the Court clarified that this “official

18

The City also argues that the record does not support § 1983 liability in this case because,

unlike Gregory, the City introduced evidence demonstrating that it has developed and implemented

adequate training for its officers. Moldowan disputes the adequacy of this effort. Resolving such disputed

factual issues is beyond the scope of this interlocutory appeal.

19

Defendants vigorously argue that, even taking all of his allegations as true, Moldowan will not

be able to prevail on Count XXVI. This argument does have some appeal. Despite extensive discovery,

Moldowan has yet to identify the individual responsible for ordering the destruction of evidence.

Moldowan also has not introduced any evidence of an official policy directing officers to withhold

exculpatory evidence from the prosecutor. Nor has he alleged a “clear and persistent pattern” of such

conduct. See Doe, 103 F.3d at 508. In fact, the City points to deposition testimony and sworn statements

suggesting that no such pattern or custom exists. Nevertheless, whether Moldowan has alleged facts

sufficient to satisfy the elements of a claim for municipal liability is beyond the scope of this interlocutory

appeal. The evidence on which Defendants rely does not, as did the record evidence before the Supreme

Court in Scott, “so utterly discredit[]” Moldowan’s assertions such that “no reasonable jury could have

believed him.” 550 U.S. at 380.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 48

policy” requirement did not preclude municipal liability “for a single decision by

municipal policymakers under appropriate circumstances.” Id. at 480.

Although Pembaur recognized policy-maker liability, the Court made clear that

“not every decision by municipal officers automatically subjects the municipality to

§ 1983 liability.” Id. at 482. Rather, municipal liability “attaches only where the

decisionmaker possesses final authority to establish municipal policy with respect to the

action ordered.” Id. In other words, the official must be “responsible for establishing

final government policy respecting such activity before the municipality can be held

liable.” Id. at 483.

Under Pembaur, therefore, the City may be held liable under § 1983 for the

failure to disclose exculpatory evidence and the destruction of evidence from

Moldowan’s first trial, even though those actions were not taken pursuant to an

overarching policy. And, contrary to Defendants’ assertions, municipal “policymaker”

liability has been clearly established at least since Pembaur was decided in 1986.20

Because we conclude that Moldowan’s claims against the City are based on

claims that implicate clearly established constitutional rights, we affirm the district

court’s denial of summary judgment as to these claims.

6. Counts V-VIII, XVI-XIX, and XXXIV — Conspiracy Claims

Moldowan’s Third Amended Complaint also asserts numerous claims alleging

that the Defendants, in various ways, conspired together to violate his constitutional

rights. Moldowan’s conspiracy claims are asserted against Defendants Ingles, Fournier,

and Dr. Warnick acting in concert together as well as with unnamed members of the

Warren Police Department and the Macomb County Prosecutor’s Office.

20

We also disagree with the notion that Moldowan cannot make out a claim against the City

under Count XXVI because he cannot show any constitutional violation on the part of Officer Schultz.

Although Officer Schultz did not violate Moldowan’s constitutional rights by destroying the case evidence,

Moldowan nevertheless may be able to show that “the individual with final policy-making authority who

directed . . . the destruction of the evidence” was aware of the materiality of the evidence, and thus did

violate Moldowan’s rights under Trombetta and Youngblood. Thus, at this stage at least, we are not

inclined to grant summary judgment on that basis.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 49

In this circuit, “[i]t is well-settled that conspiracy claims must be pled with some

degree of specificity and that vague and conclusory allegations unsupported by material

facts will not be sufficient to state such a claim under § 1983.” Gutierrez v. Lynch, 826

F.2d 1534, 1538 (6th Cir. 1987). After reviewing each of Moldowan’s conspiracy

claims, it is evident that he has failed to plead these claims with the requisite specificity.

In Count V, for instance, Moldowan merely asserts that Dr. Warnick and Detective

Ingles, along with other unnamed members of the Warren Police Department, “conspired

together for the illegal purpose of violating [his] civil rights.” (J.A. 287.) To support

that claim, Moldowan offers only one substantive factual allegation, that “Defendants

. . . arrang[ed] for the photographing of the bite marks on Ms. Fournier and for making

molds of Mr. Moldowan’s and Mr. Cristini’s dentition.” (J.A. 287.) Moldowan makes

no other allegations of acts taken in furtherance of a conspiracy. Without offering any

further allegations, Moldowan then incorporates these “prior allegations” in Counts VI-

VIII, serially recasting this claim as different constitutional violations. Moldowan takes

the same approach in all of his other conspiracy claims, offering nothing more than one

conclusory allegation in his first claim in the series, and then repeatedly recasting that

allegation as different constitutional violations.

As in Gutierrez, a review of the allegations contained in Moldowan’s various

conspiracy claims evinces that “they are insufficient to withstand a motion for summary

judgment [because they] . . . lack the requisite material facts and specificity necessary

to sustain a conspiracy claim.” 826 F.2d at 1539; see also Jaco v. Bloechle, 739 F.2d

239, 245 (6th Cir. 1984) (affirming dismissal of conspiracy claim where “complaint

merely alleged broad conclusory negligence language void of the factual allegations

necessary to support a conspiracy theory”). Accordingly, summary judgment is

appropriate as to each of Moldowan’s nine conspiracy claims. See Spadafore v.

Gardner, 330 F.3d 849, 853-54 (6th Cir. 2003).

7. Count XXXV — False Imprisonment

In Count XXXV, Moldowan asserts a claim under the Michigan Constitution

against the City of Warren for false imprisonment and continued seizure without

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probable cause. Specifically, Moldowan alleges that, after Dr. Hammel recanted her

testimony and the Michigan Supreme Court reversed his conviction in 2002, there no

longer was “probable cause to believe that [he] had committed the criminal acts that

Defendant Fournier accused him of,” and that, “[b]y virtue of being held under house

arrest without probable cause,” he was “unlawfully restrained.” (J.A. 319-20.)

Moldowan asserts that this restraint on his liberty violated the Michigan Constitution and

constituted ultra vires conduct which was not within the scope of Defendants’

governmental authority. On appeal, the City contends that it is entitled to immunity

under M.C.L. § 691.1407(1), regardless of whether Moldowan alleges that Defendants

acted intentionally.

Michigan law makes clear, however, that “[g]overnmental immunity is not

available . . . where it is alleged that the state has violated a right conferred by the

Michigan Constitution.” Burdette v. State of Mich., 421 N.W.2d 185, 186 (Mich. Ct.

App. 1988) (citing Smith v. State of Mich., Dep’t of Pub. Health, 410 N.W.2d 749 (Mich.

1987)). Although the governmental immunity recognized in § 691.1407 extends to

“intentional torts” that are “committed within the scope of a governmental function,” that

immunity does not extend to Moldowan’s claims in this case because “intentional use

or misuse of a badge of governmental authority for a purpose unauthorized by law is not

the exercise of a governmental function.” Smith, 410 N.W.2d at 780. As the Michigan

Court of Appeals held in Burdette: a “defendant cannot claim immunity where the

plaintiff alleges that defendant has violated its own constitution. Constitutional rights

serve to restrict government conduct. These rights would never serve this purpose if the

state could use governmental immunity to avoid constitutional restrictions.” 421

N.W.2d at 186-87. This conclusion is not affected by the Michigan trial court’s

determination, prior to Moldowan’s first trial, that probable cause existed. Cf. Hinchman

v. Moore, 312 F.3d 198, 202-03 (6th Cir. 2002) (holding that “a finding of probable

cause in a prior criminal proceeding does not bar a plaintiff in a subsequent civil action

from maintaining a claim for malicious prosecution under Michigan law where the claim

is based on a police officer’s supplying false information to establish probable cause”

(citing Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001))).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 51

Nor are we persuaded by Defendants’ arguments that we should resolve the

disputed factual issues underlying the probable cause question. Whether probable cause

exists to arrest and detain a suspect generally is a question of law that we may review

de novo. See United States v. Combs, 369 F.3d 925, 937 (6th Cir. 2004) (citing United

States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999)). Because of the posture of this appeal,

however, we lack jurisdiction to consider the disputed issues of fact that are critical to

resolving Moldowan’s claim that there was a want of probable cause. See Johnson, 515

U.S. at 313-18; Gregory, 444 F.3d at 743-44. We therefore affirm the district court’s

denial of immunity as to Count XXXV.

V.

Next we turn to the claims raised by Dr. Warnick’s appeal (Case No. 07-2116).

Dr. Warnick is the forensic odontologist who testified that, in his expert opinion, the

bite-mark evidence conclusively linked Moldowan to the attack. Dr. Warnick’s

testimony undoubtedly played a major role in Moldowan’s conviction as it confirmed

Fournier’s testimony that Moldowan was one of her assailants. Moldowan asserts

various claims against Dr. Warnick. Each of these claims is considered in turn.

A. Counts I-IV — Fabricating Evidence and Withholding Exculpatory Evidence

In Counts I-IV, Moldowan asserts violations of his rights under the Fourth, Fifth,

Sixth, and Fourteenth Amendments, alleging that Dr. Warnick, “either intentionally or

with deliberate indifference and/or with reckless disregard of the truth and of

[Moldowan’s] constitutional rights, fabricated evidence and withheld impeaching and

exculpatory evidence from the Macomb County Prosecutor and from [Moldowan’s]

defense counsel.” (J.A. 284.) In response, Dr. Warnick argues that he is entitled to

summary judgment on these claims because Moldowan’s complaint failed to identify the

allegedly unconstitutional conduct. Dr. Warnick’s argument is not well taken.

Qualified immunity shields government officials acting within the scope of their

official duties from civil liability insofar as their conduct does not violate clearly

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 52

established rights. See Harlow, 457 U.S. at 817-18. In clarifying the scope of the

qualified immunity inquiry, the Supreme Court stated in Mitchell :

An appellate court reviewing the denial of the defendant’s claim of

immunity need not consider the correctness of the plaintiff’s version of

the facts, nor even determine whether the plaintiff’s allegations actually

state a claim. All it need determine is a question of law: whether the

legal norms allegedly violated by the defendant were clearly established

at the time of the challenged actions or, in cases where the district court

has denied summary judgment for the defendant on the ground that even

under the defendant’s version of the facts the defendant’s conduct

violated clearly established law, whether the law clearly proscribed the

actions the defendant claims he took.

472 U.S. at 528 (emphasis added). Accordingly, we need not determine at this stage

whether Moldowan’s complaint states a claim on which relief may be granted, but only

whether, assuming the facts as asserted by Moldowan, the “legal norms allegedly

violated by the defendant were clearly established at the time of the challenged action.”

Id.

In Gregory, we reasoned that expert forensic examiners “act in an investigatory

fashion when they interpret and document physical evidence,” and thus we determined

that “the intentional fabrication of a forensic report” is subject to the same considerations

applied to the intentional fabrication of evidence by a police officer or prosecutor.

444 F.3d at 740. Under that framework, Gregory concluded that a forensic expert may

be subject to suit under § 1983 for deliberately withholding the existence of exculpatory

forensic evidence or fabricating forensic evidence. Id. at 744. Relying on Spurlock,

Gregory reaffirmed that a forensic expert defendant “‘cannot seriously contend that a

reasonable [investigator] would not know that such actions were inappropriate and

performed in violation of an individual’s constitutional . . . rights.’”21 Id. at 744

(quoting Spurlock, 167 F.3d at 1005) (alteration in Gregory). Gregory’s reliance on

21

Contrary to Dr. Warnick’s suggestion, the fact that he subsequently testified as to these issues

does not insulate him from liability. As we made clear in Gregory, absolute testimonial immunity does

not “relate backwards” to protect a defendant for any activities he allegedly engaged in prior to taking the

witness stand. 444 F.3d at 738-39 (“Subsequent testimony can not insulate previous fabrications of

evidence merely because the testimony relies on that fabricated evidence.”).

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 53

Spurlock is significant because we determined in that case that this legal norm was

clearly established at least as early as April or May of 1990. 167 F.3d at 998-99, 1006.

Because Dr. Warnick challenges the factual allegations that he fabricated and

manipulated evidence, however, we lack jurisdiction to consider Dr. Warnick’s appeal

from the denial of summary judgment as to Counts I-IV.

B. Count XXXIII — Gross Negligence

In Count XXXIII, Moldowan asserts a claim of gross negligence under state law.

Under Michigan law, Dr. Warnick enjoys statutory immunity from liability to the extent

that his conduct was within the scope of his duties as the State’s forensic expert. M.C.L.

§ 691.1407(2). Because Dr. Warnick’s conduct plainly falls within the scope of his

duties, Moldowan must demonstrate that Dr. Warnick’s conduct rises to the level of

“gross negligence.” See Payton, 536 N.W.2d at 242. Gross negligence is defined by

statute as “conduct so reckless as to demonstrate a substantial lack of concern for

whether an injury results.” M.C.L. § 691.1407(7)(a); see also Tallman v. Markstrom,

446 N.W.2d 618 (Mich. 1989). Moldowan argues that Dr. Warnick’s conduct rises to

the level of gross negligence and that Dr. Warnick intentionally withheld exculpatory

evidence and fabricated evidence to support his conclusions. Under Michigan law, “the

immunity provided by MCL 691.1407(2) does not apply to an intentional tort by an

individual governmental employee.” Walsh v. Taylor, 689 N.W.2d 506, 510 (Mich. Ct.

App. 2004). Again, however, because Dr. Warnick does not concede the factual

allegations underlying Moldowan’s claim, we lack jurisdiction to consider this issue on

interlocutory appeal.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 54

VI.

Finally, we address whether Fournier is entitled to immunity as to the various

claims Moldowan asserts against her (Case No, 07-2117).

A. Absolute Testimonial Immunity

As an initial matter, we note that, to the extent that Moldowan’s claims against

Fournier rely on allegations that she offered perjured testimony at trial, Fournier is

entitled to absolute immunity. Briscoe, 460 U.S. at 345. Fournier is entitled to

immunity regardless of whether she conspired to deliver false or incomplete testimony.

See Alioto v. City of Shevely, 835 F.2d 1173, 1174 (6th Cir. 1987) (“The doctrine

enunciated in Briscoe v. LaHue also shields from liability alleged conspiracies to give

false and incomplete testimony in judicial proceedings.”).

Moldowan argues that Fournier is not entitled to testimonial immunity under

Briscoe because she was the “complaining witness.” As noted above, the Supreme Court

has excluded from the scope of protections offered by the doctrine of absolute immunity

any conduct taken as the “complaining witnesses,” such as where a police officer

submits a false affidavit in support of an arrest warrant application. See Malley, 475

U.S. at 340-41. The record, however, plainly shows that Detective Ingles, not Fournier,

functioned as the complaining witness in submitting the August 14, 1990 criminal

complaint against Moldowan.22 (J.A. 2238.) The criminal complaint identifies Fournier

only as the “victim or complainant.” (J.A. 2238.)

This is no mere formal distinction. Fournier did not submit an affidavit to secure

the arrest warrant, nor did she take any other actions to initiate Moldowan’s arrest or

prosecution that courts previously have found critical in applying the complaining

witness exception. Although Fournier’s identification of Moldowan as one of her

attackers certainly was critical to Detective Ingles’ decision to file a criminal complaint

22

In fact, Moldowan’s Third Amended Complaint explicitly acknowledges that “Defendant Ingles

signed [the] Complaint as the complaining witness charging Jeffrey Moldowan with four felonies.” (J.A.

275.)

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 55

against Moldowan and the Macomb County Prosecutor’s decision to pursue Moldowan’s

prosecution, her statements were only part of a broader, independent investigation. As

the record shows, the police also were led to Moldowan by statements from Fournier’s

sister, Moldowan’s prior arrests, and other evidence. In fact, Detective Ingles testified

that he did not speak to Fournier until two days after the assault, during which time his

investigation proceeded without her assistance. By the time Detective Ingles

interviewed Fournier, he already had identified Moldowan as a likely suspect.

Given Fournier’s limited role leading up to Moldowan’s arrest, and in light of the

independent inquiry conducted by the police, extending the complaining witness

exception to Fournier in this case would run counter to the functional analysis we must

apply in this context. See Holloway v. Brush, 220 F.3d 767, 774 (6th Cir. 2000)

(“Absolute immunity is determined by a functional analysis that looks to ‘the nature of

the function performed, not the identity of the actor who performed it.’” (quoting

Buckley, 509 U.S. at 269)).

B. Count XVI-XIX — § 1983 Conspiracy Claims

In Counts XVI-XIX, Moldowan asserts claims under § 1983 against Fournier,

a private citizen, alleging that she conspired to violate his Fourth, Fifth, Sixth, and

Fourteenth Amendment rights by fabricating evidence or withholding exculpatory

evidence. In addition to being inadequately pled, see supra Part IV.C.6, we also hold

that Moldowan cannot maintain an action under § 1983 against Fournier because she is

not a “state actor” and did not act “under color of law.” See Tahfs v. Proctor, 316 F.3d

584, 590 (6th Cir. 2003) (“A plaintiff may not proceed under § 1983 against a private

party ‘no matter how discriminatory or wrongful’ the party’s conduct.” (quoting Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999))).

This circuit recognizes three tests for determining whether private conduct is

fairly attributable to the state: the public function test, the state compulsion test, and the

nexus test.

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The public function test “requires that the private entity exercise powers

which are traditionally exclusively reserved to the state . . . .” The

typical examples are running elections or eminent domain. The state

compulsion test requires proof that the state significantly encouraged or

somehow coerced the private party, either overtly or covertly, to take a

particular action so that the choice is really that of the state. Finally, the

nexus test requires a sufficiently close relationship (i.e. through state

regulation or contract) between the state and the private actor so that the

action may be attributed to the state.

Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995) (citations omitted). Moldowan

offers no basis for concluding that any of these tests applies here. Providing information

to the police, responding to questions about a crime, and offering witness testimony at

a criminal trial does not expose a private individual to liability for actions taken “under

color of law.” See Briscoe, 460 U.S. 329 (“[Section] 1983 does not allow recovery of

damages against a private party for testimony in a judicial proceeding.”); see also

Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“We know of no case in

which the report of a state crime is action under color of state law under § 1983. The

mere furnishing of information to police officers does not constitute joint action under

color of state law which renders a private citizen liable under §§ 1983 or 1985.”).

Fournier thus is entitled to summary judgment as to Counts XVI, XVII, XVIII,

and XIX.

C. Count XXX — Malicious Prosecution

Moldowan also cannot sustain a claim for malicious prosecution against

Fournier. Under Michigan law, a plaintiff may maintain a claim of malicious

prosecution “against a private person” where the plaintiff offers “proof that the private

person instituted or maintained the prosecution and that the prosecutor acted on the basis

of information submitted by the private person that did not constitute probable cause.”

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

law, however, also recognizes that a criminal prosecution “is initiated in the sole

discretion of the prosecutor.” Id. at 605. This is critical because, as the Michigan

Supreme Court explained in Matthews, the intervening and “independent exercise of

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prosecutorial discretion establishes that the private defendant did not initiate the

prosecution.” Id. at 613. Thus, if the police or the prosecutor initiate the prosecution

on the basis of evidence obtained through their own independent investigation, the

complaining victim is insulated from liability. Id. at 613 n.28 (“‘The exercise of the

officer’s discretion makes the initiation of the prosecution his own and protects from

liability the person whose information or accusation has led the officer to initiate the

proceedings.’” (quoting 3 Restatement Torts 2d § 653, cmt. g)). “Thus, in Michigan, the

prosecutor’s exercise of his independent discretion in initiating and maintaining a

prosecution is a complete defense to an action for malicious prosecution.” Id. at 613

(emphasis added).

That is precisely the case here. As noted above, although Fournier’s

identification of Moldowan as one of her attackers certainly was critical to the Macomb

County Prosecutor’s decision to prosecute him, her statements were only part of a

broader, independent investigation. Under controlling Michigan authority, the exercise

of independent judgment and discretion on the part of the police and the prosecutor

precludes, as a matter of law, a malicious prosecution claim against Fournier.

D. Count XXXVI— Intentional Infliction of Emotional Distress

In Count XXXVI, Moldowan also asserts a state law intentional infliction of

emotional distress claim against Fournier. According to the Third Amended Complaint,

that claim rests on Fournier’s alleged conduct “outside the courtroom with respect to the

second prosecution.” (J.A. 321.) But Fournier’s role in the second prosecution was

limited to testifying. There is nothing in the record to suggest that Fournier did anything

“outside the courtroom” leading up to the second trial that would support Moldowan’s

claim. Accordingly, Fournier is entitled to absolute immunity as to Count XXXVI. See

Briscoe, 460 U.S. at 342-45.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 58

VII.

For all of the reasons set forth above, we hereby: (1) hold that we lack

jurisdiction to consider Defendants’ interlocutory appeals from the denial of summary

judgment as to Counts I, II, III, IV, and XXXIII and thus DISMISS Defendants’ appeals

as to those claims, but DENY Moldowan’s motions to dismiss with respect to all other

Counts; (2) REVERSE the judgment of the district court and grant summary judgment

as to Counts V, VI, VII, VIII, XVI, XVII, XVIII, XIX, and XXXIV on the ground that

Moldowan failed to plead his conspiracy claims with the requisite specificity; (3)

REVERSE the judgment of the district court and grant summary judgment as to Counts

XIII, XIV, XV, XXII, and XXXVI on the ground that Defendants are entitled to

immunity as to these claims; (4) REVERSE the judgment of the district court and grant

summary judgment as to Counts XVI, XVII, XVIII, and XIX on the ground that § 1983

cannot support a claim against Fournier, a private individual, under these circumstances;

(5) REVERSE the judgment of the district court and grant summary judgment as to

Count XXIII on the ground that 18 U.S.C. § 1503 does not provide a private right of

action and cannot support a civil claim for damages under § 1983; (6) REVERSE the

judgment of the district court and grant summary judgment as to Count XXX on the

ground that Michigan law does not support a claim for malicious prosecution against a

victim complainant under these circumstances; (7) REVERSE the judgment of the

district court and grant summary judgment as to Count XXXI on the ground that

Michigan law does not support a claim for malicious prosecution against Detective

Ingles under these circumstances; and (8) AFFIRM the judgment of the district court

denying summary judgment as to Counts IX, X, XI, XII, XXIV, XXVI, and XXXV on

the grounds that Moldowan’s allegations implicate clearly established constitutional

rights and that Defendants are not entitled to immunity as to these claims.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 59

__________________________________________________________________

CONCURRING IN THE JUDGMENT IN PART, DISSENTING IN PART

__________________________________________________________________

KETHLEDGE, Circuit Judge, concurring in the judgment in part, and dissenting

in part. Moldowan puts many labels on his claims, but his claim against Officer Ingles

is essentially that he should have disclosed, presumably to the prosecutor, the fact and

contents of Jerry Burroughs’ alleged statement to Ingles. I agree with the majority’s

conclusion that, under the standard of review applicable here, Moldowan is entitled to

proceed with that claim. But I respectfully disagree with how the majority gets there.

I.

A.

With a significant caveat, the majority gets there by extending the no-fault

regime of Brady v. Maryland, 373 U.S. 83 (1963)—or at least something functionally

“analogous” to it, Maj. Op. at 26—to police officers. The caveat, as discussed below,

may as a practical matter render insignificant the differences between the majority’s

approach and my own. I think it important, however, to explain why extending the

Brady regime to police officers would be both unprecedented and unwise.

“The Brady doctrine imposes an absolute duty on the prosecutor to produce all

materially favorable evidence in the State’s possession.” Villasana v. Wilhoit, 368 F.3d

976, 979 (8th Cir. 2004). By its terms, therefore, Brady applies to prosecutors, not

police officers. Brady itself, of course, did not involve police conduct at all, but rather

concerned a criminal defendant’s attempt to obtain a new trial based upon the

prosecution’s suppression of evidence favorable to him. In granting Brady partial relief

from his conviction, the Court held “that the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87 (emphasis added). Thus the Brady duty, as stated by the

Brady Court, was imposed on the prosecutor; and in cases since, “[t]he Supreme Court

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has never imposed this absolute duty on law enforcement officials other than the

prosecutor.” Villasana, 368 F.3d at 979; see also Jean v. Collins, 221 F.3d 656, 660 (4th

Cir. 2000) (en banc) (Wilkinson, C.J., concurring in the judgment) (“The Supreme Court

has always defined the Brady duty as one that rests with the prosecution”) (collecting

Supreme Court cases); Lindsay v. Bogle, 92 F. App’x 165, 170 (6th Cir. 2004) (“the

Brady obligation applies only to prosecutors”).

The imposition of that same absolute duty on police officers, therefore, would

represent an extension of Brady that the Supreme Court itself has not made in the 46

years since it rendered the decision. I do not think the omission is fortuitous. Not only

by its terms, but also by its content, the Brady duty is uniquely tailored to prosecutors.

It applies to exculpatory evidence that is “material”; and the Supreme Court says that

“[s]uch evidence is material ‘if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding [that is, the criminal trial]

would have been different.’” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting

United States v. Bagley, 473 U.S. 667, 682 (1985)). Whether a particular piece of

evidence would have changed the result of a criminal trial, of course, is a judgment that

prosecutors, not police officers, are trained to make. The Eighth Circuit so observed in

refusing to extend Brady to police officers:

It is logical to impose Brady’s absolute duty on the government official

who will present the State’s case at trial [i.e., the prosecutor], who can be

expected to gather material evidence from law enforcement agencies, and

who is in the best position to evaluate whether evidence must be

disclosed because it is materially favorable to the defense.

Villasana, 368 F.3d at 979. And so too, in rejecting the same extension, did a plurality

of the en banc Fourth Circuit:

The Brady duty is framed by the dictates of the adversary system and the

prosecution’s legal role therein. Legal terms of art define its bounds and

limits. The prosecutor must ask such lawyer’s questions as whether an

item of evidence has “exculpatory” or “impeachment” value and whether

such evidence is “material.” It would be inappropriate to charge police

with answering these same questions, for their job of gathering evidence

is quite different from the prosecution’s task of evaluating it.

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 61

Jean, 221 F.3d at 660 (Wilkinson, C.J., concurring in the judgment).

The extension is also unnecessary. The Brady rule already “encompasses

evidence ‘known only to police investigators and not to the prosecutor.’” Strickler, 527

U.S. at 280-81 (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)). But it is the

prosecutor, not the police themselves, who bears an absolute duty to disclose it. Indeed,

even as to evidence solely in police possession—which is the kind of evidence at issue

here—the Supreme Court has specifically refused to impose the Brady duty directly

upon the police, saying that to do so “would . . . amount to a serious change of course

from the Brady line of cases.” Kyles, 514 U.S. at 438. Instead, to comply with Brady,

“the individual prosecutor has a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in the case, including the police.” Id. at 437

(emphasis added). And any breach of that duty, no matter how diligent the prosecutor’s

efforts, entitles the criminal defendant to a new trial; “the prosecution’s responsibility

for failing to disclose known [even only to the police], favorable evidence rising to a

material level of importance is inescapable.” Id. at 438. Moreover, as discussed below,

no one disputes that police officers already have an independent duty—though not a

Brady duty—not to conceal materially exculpatory evidence in bad faith. Thus, as a

practical matter, extending Brady to police officers would accomplish little with respect

to the fairness of criminal trials that current law does not already accomplish.

What that extension would accomplish, rather, is a significant increase in

lawsuits against police officers. Prosecutors enjoy absolute immunity for actions taken

in their official capacities, see Imbler v. Pachtman, 424 U.S. 409, 413-16 (1976),

whereas police officers do not. Police officers, therefore, would become the special

object of attention from criminal defendants who believe that allegedly exculpatory

evidence should have been, but was not, disclosed to their counsel prior to trial. And in

this respect the police would present a large target. Police officers, particularly ones like

Ingles who investigate violent crime in the field, obtain a great deal of information in the

course of an investigation. Some of what they obtain, like shell casings, is tangible, but

much of it, like things they may have seen or heard in the course of their activities, is

Nos. 07-2115/2116/2117 Moldowan v. City of Warren, et al. Page 62

not. As a practical matter, an officer cannot preserve, and thus pass on to the prosecutor,

everything he sees, hears, or learns in the course of investigating a crime. He instead has

to exercise judgment about what seems important and what does not. But if an officer

bears an absolute duty to disclose materially exculpatory evidence, all of the information

thus filtered by an officer’s judgment, even in the purest good faith, potentially becomes

the basis of a lawsuit against him. An officer’s failure to recognize an exculpatory clue,

for example, and thus to pass it on to the prosecutor, would be a violation of the Due

Process Clause. That the officer was merely negligent, or even that no reasonable officer

could have understood the clue’s significance at the time, would be no defense; the

Brady duty is absolute. So if the clue could have changed the result of the criminal

defendant’s first trial, the defendant would not only get a second one; he would be

entitled to have the officer pay him for his troubles as well.

This exposure would arise not only from evidence considered in isolation. We

must consider evidence cumulatively in determining whether it is materially exculpatory

for purposes of Brady, see Kyles, 514 U.S. at 436, so an officer’s failure to connect the

exculpatory dots, as well, would render him liable for damages. Two, or indeed any

number of, pieces of information, that might have seemed unimportant to a reasonable

investigator at the time, but that present an exculpatory picture after the fact when

arranged just so, would be grounds for a suit.

Once unleashed, these suits would be very difficult to stop short of trial. For in

these cases the refuge of qualified immunity would be illusory. Qualified immunity

requires that the officer violate “clearly established” constitutional rights to be liable,

with the idea being that, by definition, such liability is usually limited to officers who

knew or should have known they were violating the law. See Saucier v. Katz, 533 U.S.

194, 202 (2001). But it does an officer little good to be aware of the existence of a

generic duty, if, when acting in good faith and to the best of his ability, he is not aware

that he is breaching it. And because the Brady duty is absolute, a criminal-defendant-

turned-plaintiff would need not prove that the officer knew—or even that any reasonable

officer would have known—that

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