Roger Gillispie v. Miami Twp., Ohio

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0272p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ROGER DEAN GILLISPIE, │

Plaintiff-Appellee, │

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> No. 20-4119

v. │

│

│

MIAMI TOWNSHIP, OHIO,

│

Defendant, │

│

MATTHEW SCOTT MOORE, │

Defendant-Appellant. │

│

┘

Appeal from the United States District Court for the Southern District of Ohio at Dayton.

No. 3:13-cv-00416—Thomas M. Rose, District Judge.

Argued: July 29, 2021

Decided and Filed: November 30, 2021

Before: GIBBONS, STRANCH, and BUSH, Circuit Judges.

_________________

COUNSEL

ARGUED: Frank H. Scialdone, MAZANEC, RASKIN AND RYDER, CO., L.P.A., Cleveland,

Ohio, for Appellant. David B. Owens, LOEVY & LOEVY, Chicago, Illinois, for Appellee.

ON BRIEF: Frank H. Scialdone, Todd M. Raskin, Cara M. Wright, MAZANEC, RASKIN

AND RYDER, CO., L.P.A., Cleveland, Ohio, for Appellant. David B. Owens, LOEVY &

LOEVY, Chicago, Illinois, for Appellee.

STRANCH, J., delivered the opinion of the court in which GIBBONS, J., joined and

BUSH, J., joined in part. BUSH, J. (pp. 13–17), delivered a separate opinion concurring in part

and dissenting in part.

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 2

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Roger Dean Gillispie was convicted of two rapes

and spent over 20 years in prison before the Ohio courts vacated his convictions, finding

meritorious his claims of failure to disclose exculpatory evidence and actual innocence. Gillispie

now brings five § 1983 claims against Matthew Scott Moore, the police officer responsible for

much of the investigation and the identification of Gillispie as the likely perpetrator. Gillispie

alleges that Moore suppressed exculpatory evidence, arranged an unduly suggestive eyewitness

identification procedure, fabricated inculpatory evidence, assisted in maliciously prosecuting

him, and destroyed exculpatory evidence. Moore claims entitlement to qualified immunity on

each count. In an exhaustive and well-reasoned order, the district court determined that each of

Gillispie’s claims should proceed to trial. Moore appeals. Because Moore fails to abide by the

basic, mandatory jurisdictional requirements governing appeals from denials of qualified

immunity, we DISMISS the case for lack of jurisdiction.

I. BACKGROUND

Following the district court, we do not “trudge through all” the “extensive” history of this

case. Gillispie v. City of Miami Twp., No. 3:13-CV-416, 2020 WL 5629677, at *1 (S.D. Ohio

Sept. 21, 2020) (“Dist. Ct. Order”). We instead draw on the district court’s careful chronology,

noting that the state courts’ previous decisions offer additional detail. See, e.g., State v. Gillispie,

65 N.E.3d 791, 793–800 (Ohio Ct. App. 2016). Because the district court correctly applied the

standard for summary judgment, as discussed below, we adopt the district court’s recitation of

the facts, see Adams v. Blount Cnty., 946 F.3d 940, 948 (6th Cir. 2020), including casting them

in the light most favorable to Gillispie, see Jackson v. City of Cleveland, 925 F.3d 793, 803 (6th

Cir. 2019), cert. denied sub nom. City of Cleveland v. Jackson, 140 S. Ct. 855 (2020).

In 1988, twin sisters were abducted and sexually assaulted in Miami Township, Ohio.

Dist. Ct. Order, 2020 WL 5629677, at *1. A third woman was similarly assaulted outside the

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 3

Township’s jurisdiction.1 Id. Township Detective Sergeant Steven Fritz assigned Detective

Gary Bailey to investigate the crimes. Id. at *2. Bailey interviewed the victims, who created

composite images of the person who had assaulted them; one victim also saw and provided

Bailey with the perpetrator’s pants size. Id. Bailey compiled this information in a report that

supplemented his main, handwritten report on the investigation’s progress. Id.

At the time, Gillispie worked as a security officer at General Motors (GM). Id. “There

was tension and animosity between Gillispie and his superiors”—in particular, Defendant

Richard Wolfe. Id. Wolfe had previously worked for and volunteered with the Township’s

police department, and his father had been the chief. Id. In 1989, a GM employee told his then

supervisor, Wolfe, that one of his subordinates thought a composite of the suspect resembled

Gillispie. Id. Wolfe contacted the department and met with Fritz, Police Chief Bailey, and a

captain, bringing along Gillispie’s employee photo. Id. He “suggested that Gillispie become a

suspect,” but “Bailey and Fritz were skeptical, thinking that Wolfe might be being vindictive.”

Id. Nevertheless, the Chief ordered Bailey and Fritz to investigate Gillispie. Id.

Following their investigation, Bailey and Fritz ruled out Gillispie as a suspect and

explained that decision in written supplemental reports. The district court found that:

Some of the reasons why Bailey and Fritz eliminated Gillispie as a suspect

included: (1) Gillispie was too large to have the pants size of the perpetrator that

[the victims] had indicated; (2) Gillispie’s lack of any criminal history, while the

perpetrator’s crimes were brazen—suggesting an extensive criminal history;

(3) the perpetrator, who told the victims his name was “Roger,” most likely would

not have provided his real name; (4) Wolfe’s (and other GM employees’)

apparent animosity toward Gillispie; (5) in their opinion, the picture of Gillispie

that Wolfe brought did not match the composite; and (6) the long delay between

when the police department had shared the composite of the perpetrator with GM

and when Wolfe had suggested Gillispie as a suspect. However, Bailey and Fritz

cannot recall all of the reasons why they eliminated Gillispie as a suspect. There

were more reasons and details provided in the supplemental reports that they

wrote.

1

We follow the district court in referring to the sisters as “B.W.” and “C.W.” and the third woman as

“S.C.”

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 4

Id. Wolfe kept asking Fritz “whether the Township police department was going to do anything

about Gillispie,” and Fritz kept telling him that “Gillispie was not considered a good suspect.”

Id. at *3. Still, “Wolfe showed up at the police department claiming that he had additional

information and providing an envelope with photos in it, which were given to Fritz.” Id.

By June 1990, Bailey and Fritz had stopped working on the case; Bailey was reassigned,

and Fritz left the department. Id. Before Fritz’s departure, he told the Chief and a captain:

Defendant Moore would be the best one to assign to the . . . investigation, so long

as Moore had supervision. Fritz believed that Moore was tenacious and had the

qualities of being a good investigator. However, at the time, Moore was relatively

new to the force, and Fritz believed that Moore could be overzealous and had a

tendency to go “rogue,” sometimes continuing to pursue cases even when he

lacked evidence.

Id.

Moore was assigned to the case and “received all of the supplemental reports that pre-

dated his involvement in the investigation, including the supplemental reports detailing the first

meeting with Wolfe and the elimination of Gillispie as a suspect (and the reasoning for doing

so).” Id. Moore’s ex-wife later testified that “the supplemental report concerning the previous

elimination of Gillispie as a suspect frustrated and angered Moore.” Id. Moore chose to write

his own replacement “supplemental reports that do not reference Wolfe’s initial meeting at the

Township’s police department or the circumstances concerning the elimination of Gillispie as a

suspect,” and instead identified Gillispie as a key suspect. Id. at *3–4. These reports were

electronic as opposed to handwritten, Moore could edit them later, and he was not required to

give the reports to supervisors until the investigation was closed. Id. at *4.

Moore proceeded to create photo lineups, asking the victims to identify the perpetrator.

The district court described those lineups as follows:

The photo lineups consisted of six photographs, one being of Gillispie. The

photograph of Gillispie was from a GM identification badge. Moore did not

know how old the picture was, but the identification badge indicated that it was

issued on January 27, 1989. Moore made at least three different photo lineups; he

placed the photo of Gillispie in a different location for each of the three victims’

lineup procedure. He did not contemporaneously make a copy of the photo

lineups that he showed to the victims, despite the “PHOTOGRAPHIC

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 5

IDENTIFICATION GENERAL GUIDELINES” used by Moore and the

Township’s police department stating: “ALSO RUN A COPY OF THE PHOTO

SPREAD USED!”

Moore told each of the victims, before conducting the lineups, that he had a

possible suspect for the crimes. C.W. conducted a lineup procedure with Moore

first. The next day, when B.W. conducted a lineup procedure with Moore, C.W.

came with her and waited in the lobby of the police department. Moore’s report

states that he had told C.W. not to speak with her sister about the lineup. After

B.W.’s lineup, Moore informed the sisters that they had picked out the same

suspect, that the suspect used to be a security guard at GM but was fired, that the

suspect’s name was Roger Gillispie, and that Roger Gillispie was the suspect that

he (Moore) thought might be the one who committed the crimes. (Again, the

perpetrator had told the victims that he was with security for the Best Products

store and that his name was “Roger.”) After S.C.’s lineup, Moore told S.C. that

she had identified the person that he believed was the perpetrator.

The picture of Gillispie used in the lineups appears to be different from the

pictures of the five men used as fillers in the lineups. For example, Gillispie’s

face appears to be wider than the faces of the fillers in the lineup photos.

(Testimony from the victims described the perpetrator as having a wide face.) His

face is closer and larger than the faces of the others. Unlike the fillers, Gillispie’s

photo had been changed from its original size by the Montgomery Valley

Regional Crime Lab, at Moore’s request. Also, Gillispie’s photo had a different

finish than the other photos in the lineups. Moore admitted that there was a

difference in quality between Gillispie’s photo and the photos of the fillers, and

that Gillispie’s photo seemed to be “slightly duller.” Additionally, two of the

filler photos used were of Township officers.

Id. at *4–5 (citation omitted). Three such lineups were ultimately introduced at trial, and Moore

testified about each of them. Id. at *5.

After Moore conducted the lineups, he interviewed Gillispie at the police station in

August 1990. Id. He met with the prosecutor to present his conclusion that Gillispie was the

perpetrator; as a result, the prosecutor charged Gillispie. Id. In September 1990, Moore

interviewed Gillispie’s ex-girlfriend, Torrie Mitchell, and recorded the interview. Id. Although

Moore’s reports stated that Mitchell said Gillispie wore a gold chain, a detail the victims had

identified, Mitchell later testified that she said no such thing and that Moore’s reports and

transcripts contained other falsehoods. Id.

Before trial, Gillispie’s attorney hired an investigation company. Id. After leaving the

police department, Fritz had gone to work for that company, and was assigned to Gillispie’s case.

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 6

Id. Gillispie claimed that on the day of the rapes, which was “hot and sunny,” he was at a

campground in Kentucky, so Fritz sought to obtain the campground’s records. Id. at *6. But the

records “were in disarray,” and only a few existed from around the day of the rapes. Id. “Moore

had received some records from the campground, but Gillispie alleges that he and his friends

were there far more often than indicated in the records that Moore received.” Id.

Gillispie was indicted in October 1990 and found guilty (twice, including after being

granted a new trial) in 1991. Id. While incarcerated, he filed several postconviction motions in

state and federal court. Id. The Ohio courts did not grant relief. See, e.g., State v. Gillespie

[sic], No. 12941, 1993 WL 10927 (Ohio Ct. App. Jan. 21, 1993). The Ohio Court of Appeals

rejected Gillispie’s Brady claims but did order an evidentiary hearing about whether the

existence of a viable alternative suspect required a new trial. State v. Gillispie, Nos. 22877 &

22912, 2009 WL 2197052 (Ohio Ct. App. July 24, 2009). After the Ohio trial court held the

hearing and denied a new trial, Gillispie appealed; while that appeal was pending, he prevailed

on his federal claims. Dist. Ct. Order, 2020 WL 5629677, at *6. A magistrate judge found that

Ohio had violated Gillispie’s right to due process and ordered the state to release or retry him.

Gillispie v. Timmerman-Cooper, 835 F. Supp. 2d 482, 509 (S.D. Ohio 2011). As the district

court put it:

Back in Ohio state court, the state appeals court considered the appeal of

Gillispie’s motion for a new trial following the hearing that it had ordered. On

April 13, 2012, based on the alternative suspect, it reversed the trial court’s ruling.

State v. Gillispie, No. 24456, 2012 WL 1264496 (Ohio Ct. App. 2012), amended

on reconsideration by State v. Gillispie, 985 N.E.2d 145, (Ohio Ct. App. 2012)

(per curiam) (deleting paragraph 45 from original opinion). The Ohio appeals

court vacated Gillispie’s conviction and sentence and remanded for a new trial.

Id. at *12 (“The order of the trial court denying Gillispie’s motion for a new trial

is Reversed. Gillispie’s conviction and sentences are Vacated, and this cause is

Remanded for a new trial[.]”). On November 7, 2012, the Ohio Supreme Court

denied the State leave to appeal that decision. State v. Gillispie, 977 N.E.2d 694

(Ohio 2012) (table).

Dist. Ct. Order, 2020 WL 5629677, at *6 (footnote omitted) (citation formatting modified).

Ohio later abandoned its appeal of the magistrate judge’s decision. Id. at *7. Further litigation

followed, including in this court. See, e.g., Gillispie v. Warden, London Corr. Inst., 771 F.3d

323 (6th Cir. 2014).

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 7

In 2013, Gillispie filed a motion to compel discovery of Bailey and Fritz’s supplemental

reports or dismiss the indictment with prejudice if the state would not or could not provide them.

Id.; see State v. Gillispie, 65 N.E.3d 791 (Ohio Ct. App. 2016). The state did not provide the

reports, the trial court dismissed the new indictment with prejudice, and the Ohio Court of

Appeals upheld that decision while noting that “Gillispie could not be constitutionally convicted

of the offenses without production of the supplemental police reports themselves.” Dist. Ct.

Order, 2020 WL 5629677, at *7 (quoting Gillispie, 65 N.E.3d at 808).

Finally, and importantly, “[a]ccording to Gillispie, he is innocent of the rapes and could

not have committed them because he was with a group of friends on August 5, 1988[,] and in

Kentucky on August 20, 1988.” Id. at *7. The Ohio Court of Appeals noted the distinct

possibility that an alternative suspect—whose identity is known, whose “physical description

resembles the composites and the descriptions given by the rape victims in Gillispie’s case,” and

who exhibited several other key characteristics aligning with the crimes—committed the rapes,

not Gillispie. Gillispie, 2012 WL 1264496, at *9–10. Gillispie alleges “that he was traumatized

by over 20 years of wrongful incarceration.” Dist. Ct. Order, 2020 WL 5629677, at *7.

II. ANALYSIS

Gillispie argues that this court does not have jurisdiction over Moore’s appeal. Appellate

jurisdiction over a district court’s denial of a claim of qualified immunity exists “to the extent

that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The onus is on

the defendant to comply with this jurisdictional limit: “We have jurisdiction only to the extent

that the defendant ‘limit[s] his argument to questions of law premised on facts taken in the light

most favorable to the plaintiff.’” Adams, 946 F.3d at 948 (quoting Philips v. Roane Cnty.,

534 F.3d 531, 538 (6th Cir. 2008)).

For qualified immunity appeals, that means “we do have jurisdiction to review whether

the district court properly adopted the plaintiff’s version of the facts in assessing qualified

immunity (i.e., whether it applied the correct summary judgment standard).” Ouza v. City of

Dearborn Heights, 969 F.3d 265, 277 (6th Cir. 2020); see generally Jackson, 925 F.3d at 806

(outlining the standard courts must apply at summary judgment). But that analysis is meant only

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 8

to facilitate review of “the ‘purely legal’ question of ‘whether the legal norms allegedly violated

by the defendant were clearly established at the time of the challenged actions.’” Ouza, 969 F.3d

at 276 (quoting Mitchell, 472 U.S. at 528 & n.9); see also Roberson v. Torres, 770 F.3d 398, 402

(6th Cir. 2014); Vakilian v. Shaw, 335 F.3d 509, 515 (6th Cir. 2003). That is the “precise scope”

and outer boundary of appellate jurisdiction in this context. Ouza, 969 F.3d at 277.

As the Supreme Court made clear in Johnson v. Jones, 515 U.S. 304 (1995), defendants

cannot “appeal a denial of a motion for summary judgment based on qualified immunity ‘insofar

as that order determines whether or not the pretrial record sets forth a “genuine” issue of fact for

trial.’” Adams, 946 F.3d at 948 (quoting Johnson, 515 U.S. at 320). The same is true for appeals

that challenge the district court’s determination of “‘evidence sufficiency,’ i.e., which facts a

party may, or may not, be able to prove at trial.” Bunkley v. City of Detroit, 902 F.3d 552, 559

(6th Cir. 2018) (quoting Johnson, 515 U.S. at 313).

Indeed, “[a]n 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.” Mitchell, 472 U.S. at 528. Because the

scope of the defendant’s appeal is so circumscribed, “we ‘need look no further than the district

court’s opinion,’ and ‘we often may be able merely to adopt the district court’s recitation of facts

and inferences.’” Adams, 946 F.3d at 948 (quoting Barry v. O’Grady, 895 F.3d 440, 443 (6th

Cir. 2018)). This court simply “defer[s] to the district court’s determinations of fact.” Id. “And

beyond those determinations, ‘a defendant may not challenge the inferences that the district court

draws from those facts, as that too is a prohibited fact-based appeal.’” Id. (quoting Barry, 895

F.3d at 443).

Two exceptions to these general rules exist, neither of which applies in this case. “First,

we may overlook a factual disagreement if a defendant, despite disputing a plaintiff’s version of

the story, is ‘willing to concede the most favorable view of the facts to the plaintiff for purposes

of the appeal.’” Adams, 946 F.3d at 948 (quoting Barry, 895 F.3d at 443). As explained below,

Moore refuses to do so here. “And second, in exceptional circumstances, we may decide an

appeal challenging the district court’s factual determination if that determination is ‘blatantly

contradicted by the record, so that no reasonable jury could believe it.’” Id. (quoting Scott v.

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 9

Harris, 550 U.S. 372, 380 (2007)). Far from the situation Scott contemplated, in which a video

recording in the record “utterly discredited” the plaintiff’s narrative, 550 U.S. at 380, the record

contradicts neither Gillispie’s version nor the district court’s various factual determinations in

this case, much less blatantly so.

“We have consistently enforced Johnson’s jurisdictional bar in cases in which the

defendant’s qualified immunity appeal is based solely on his or her disagreement with the

plaintiff’s facts.” Ouza, 969 F.3d at 277 (collecting cases). If “disputed factual issues are

‘crucial to’ a defendant’s interlocutory qualified immunity appeal, we may not simply ignore

such disputes; we remain ‘obliged to dismiss [the appeal] for lack of jurisdiction.’” Adams, 946

F.3d at 951 (alteration in original) (quoting Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002));

see also, e.g., Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998). Even if a defendant asserts

arguments about whether the law was clearly established, if he “fails to concede the most

favorable view of the facts to [the plaintiff] and instead relies solely on his version of the facts,”

this court cannot consider those otherwise valid arguments because he has failed to satisfy a

crucial jurisdictional prerequisite. Adams, 946 F.3d at 950–51.

When determining if disputed factual issues are “crucial” to a defendant’s appeal, we

consider whether “there is enough record evidence demonstrating that [the district court’s]

findings of facts and inferences are not blatantly and demonstrably false,” the disputes are more

than “minor,” and the disputes are not “immaterial to the legal issues raised by the appeal.” Id.

at 951 (first quoting Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 602 n.5 (6th Cir. 2005);

then quoting Claybrook v. Birchwell, 274 F.3d 1098, 1103 (6th Cir. 2001)). Ultimately, if the

factual disputes are so central as to “serve as the basis” for the defendant’s legal argument on

appeal, then we do not have jurisdiction over the appeal at all. Id. But if we find that the factual

disputes are not “crucial” to the appeal, we will “separate an appealed order’s reviewable

determination (that a given set of facts violates clearly established law) from its unreviewable

determination (that an issue of fact is ‘genuine’).” Id. at 948 (quoting Roberson, 770 F.3d at

402); see also Bunkley, 902 F.3d at 560; DiLuzio v. Village of Yorkville, 796 F.3d 604, 610 (6th

Cir. 2015).

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 10

We “find the district court’s opinion [in] this case to be well-reasoned and supported by

the record, and therefore only briefly address the various arguments raised by [Moore].” Adams,

946 F.3d at 949. The district court’s detailed opinion correctly applied the summary judgment

standard, adopting Gillispie’s statement of the facts and making appropriate inferences from

them. See Ouza, 969 F.3d at 276. But almost all of Moore’s argument consists of disagreements

with Gillispie’s facts and the district court’s determinations that multiple genuine disputes of

material fact exist. Those are unreviewable at this stage. See id. at 277; Adams, 946 F.3d at 948.

Moore consistently ignores our repeated instruction that “to bring an interlocutory appeal of a

qualified immunity ruling, the defendant must be willing to concede the plaintiff’s version of the

facts for purposes of the appeal.” Ouza, 969 F.3d at 277 (quoting Jefferson v. Lewis, 594 F.3d

454, 459 (6th Cir. 2010)).

Moore argument on appeal is simply a challenge to the district court’s determinations that

genuine issues of material fact exist on the core claims in the case. He contends that it was error

to find a factual dispute regarding “whether the prosecutor was aware that Fritz and Bailey had

previously ruled Plaintiff out as a suspect in the rapes” and “whether Det. Moore possessed, and

failed to disclose, the supplemental reports allegedly authored by Fritz and Bailey eliminating

[Gillispie] as a suspect in the rapes.” Moore claims that no evidence exists that such reports

“were ever placed in the case file or that Det. Moore was aware of this fact at the time that he

authored his report.” He asserts that the district court erred regarding the suggestive

identification procedures because “the sizes of the photographs did not steer the women toward

identifying [Gillispie] as the suspect.” Moore challenges the finding that a dispute could exist

about fabricated evidence “based upon the inclusion of a statement with Det. Moore’s report that

[Gillispie] was the newest suspect in the case.” He attacks the district court’s determinations

surrounding probable cause for Gillispie’s arrest. Moore also asserts that “[t]he reports allegedly

authored by Fritz and Bailey were not ‘material exculpatory evidence.’” And he contends there

is in fact no genuine dispute over destroyed evidence. Additional examples abound.

This repeated refusal to accept Gillispie’s version of the facts is fatal to Moore’s appeal.

The factual disputes he raises in his briefing serve as the sole bases for his arguments about

clearly established law, and he continued with that approach at oral argument. See Adams, 946

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F.3d at 951. These disputes are “crucial” to Moore’s contentions, see id., which assert that

because the district court erred in finding certain facts, the law was not clearly established.

Moore effectively says that “the resolution of these factual issues is needed to resolve the legal

issue”—which, as we have recognized, strips jurisdiction entirely. Beard, 402 F.3d at 602 n.5;

Adams, 946 F.3d at 951. These disputes are not minor, and Moore’s insistence that the district

court’s thorough opinion is blatantly and demonstrably false is unavailing. See Adams, 946 F.3d

at 951. We conclude that Moore’s failure to comply with the basic requirements of an appeal

from a denial of qualified immunity means that we do not have jurisdiction over his appeal.2

Moore’s appeal is troubling not only because it violates the core jurisdictional rules

governing this context, but also because it implicates the reasons those rules exist in the first

place. Johnson was published more than 26 years ago, and litigants have been on notice for

more than two decades that fact-intensive claims of entitlement to qualified immunity “can

consume inordinate amounts of appellate time.” 515 U.S. at 316. Such claims stymie the proper

development of a case that should be based on the “comparative expertise of trial and appellate

2

Even if Moore’s arguments could be reasonably characterized as contending only that the applicable law

was clearly established, we would still reject them. First, well before the events at issue in this case, “it was clearly

established law that prosecutorial withholding of exculpatory evidence violates a criminal defendant’s Fourteenth

Amendment right to due process,” with the obligation to disclose extending to police officers as well and

encompassing all, not some, possibly exculpatory material. Jackson, 925 F.3d at 823–24; Barton v. Warden, S. Ohio

Corr. Facility, 786 F.3d 450, 468 (6th Cir. 2015); Moldowan v. City of Warren, 578 F.3d 351, 382–89 (6th Cir.

2009). Second, as early as 1967, it was clearly established that a person the police suspected of committing a crime

had “a constitutional right to be free from identification procedures ‘so unnecessarily suggestive and conducive to

irreparable mistaken identification’ that the identification’s use violates due process of law.” Gregory v. City of

Louisville, 444 F.3d 725, 746 (6th Cir. 2006) (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)); see also Manson

v. Brathwaite, 432 U.S. 98, 106 (1977); Simmons v. United States, 390 U.S. 377, 384 (1968). Third, “as far back as

1935, the Supreme Court recognized that the introduction of fabricated evidence violates ‘the fundamental

conceptions of justice which lie at the base of our civil and political institutions.’” Jackson, 925 F.3d at 825

(quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). “[A] defendant officer could not ‘seriously contend that a

reasonable police officer would not know that [his] actions [including fabricating evidence] were inappropriate and

performed in violation of an individual’s constitutional . . . rights.” Id. at 826 (alterations in original) (quoting

Spurlock v. Satterfield, 167 F.3d 995, 1005–06 (6th Cir. 1999)). Fourth, “individuals have a clearly established

Fourth Amendment right to be free from malicious prosecution by a defendant who has ‘made, influenced, or

participated in the decision to prosecute the plaintiff’ by, for example, ‘knowingly or recklessly’ making false

statements that are material to the prosecution either in reports or in affidavits filed to secure warrants.” King v.

Harwood, 852 F.3d 568, 582–83 (6th Cir. 2017) (quoting Webb v. United States, 789 F.3d 647, 660, 665 (6th Cir.

2015)). Those rights were clearly established by 1990 and have been readily applied at that level of generality since.

Jackson, 925 F.3d at 827 (citing McShane v. Moldovan, 172 F.2d 1016, 1019 (6th Cir. 1949)); King, 852 F.3d at

582–83; Spurlock, 167 F.3d at 1006–07. Fifth, it was clearly established before 1990 that a plaintiff need not show

that the officer acted in bad faith when “material exculpatory evidence was lost or destroyed” and that the

evidence’s exculpatory value was apparent. Moldowan, 578 F.3d at 392; California v. Trombetta, 467 U.S. 479,

488–89 (1984); see also United States v. Wright, 260 F.3d 568, 571 (6th Cir. 2001).

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 12

courts.” Id. at 317. And they can “require reading a vast pretrial record, with numerous

conflicting affidavits, depositions, and other discovery materials,” resulting in “greater delay” in

adjudicating cases. Id. at 316. Moreover, as the Supreme Court explained in Johnson:

The close connection between this kind of issue and the factual matter that will

likely surface at trial means that the appellate court, in the many instances in

which it upholds a district court’s decision denying summary judgment, may well

be faced with approximately the same factual issue again, after trial, with just

enough change brought about by the trial testimony) to require it, once again, to

canvass the record. That is to say, an interlocutory appeal concerning this kind of

issue in a sense makes unwise use of appellate courts’ time, by forcing them to

decide in the context of a less developed record, an issue very similar to one they

may well decide anyway later, on a record that will permit a better decision.

Id. at 316–17. Because these considerations are so important, when “it clearly appears . . . that

the defendant is unnecessarily protracting the litigation” through pursuing such an appeal,

monetary sanctions are even appropriate. Berryman, 150 F.3d at 565.

Here, “there is clearly a factual dispute at the heart of the qualified immunity issue.” Id.

at 562. Moore has “contradicted [Gillispie’s] version of the facts at every turn.” Id. We

acknowledged not long after Johnson that “defendants sometimes attempt simply to protract the

litigation and manipulate the fact-law distinction . . . to create the appearance of jurisdiction.”

Id. at 564. That is particularly concerning here because this case presents the exact scenario

against which the Johnson Court warned: a voluminous record, a trial court’s able factfinding,

and a subsequent appeal looming should this case proceed to trial and Gillispie prevail. It has

been clear for decades to litigants that this litigation strategy is improper. An appeal choosing to

take this tack anyway delays the administration of our justice system and is a waste of judicial

resources.

III. CONCLUSION

For the reasons discussed above, we DISMISS Moore’s appeal in its entirety for lack of

jurisdiction.

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 13

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________

JOHN K. BUSH, Circuit Judge, concurring in part and dissenting in part. I agree that

Matthew Scott Moore’s purely factual challenges are beyond the scope of our interlocutory

jurisdiction. But when a defendant brings us both reviewable legal determinations and

nonreviewable factual determinations, as Moore has done, we should separate the issues and

exercise our jurisdiction over the legal challenges. I would do just that and affirm the district

court, so I respectfully dissent.

Defendants to suits under 42 U.S.C. § 1983 once claimed a right to interlocutory review

of the factual determinations in summary-judgment denials by dressing their challenges in the

garb of a challenge to the denial of qualified immunity. But the Supreme Court foreclosed that

dubious route to mid-case review in Johnson v. Jones, 515 U.S. 304 (1995). It held that the

portion of a qualified-immunity denial that “determines only a question of ‘evidence

sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial. . . . is not

appealable.” Johnson, 515 U.S. at 313. Rather, we “limit [our] interlocutory resources to

questions of law,” Romo v. Largen, 723 F.3d 670, 678 (6th Cir. 2013) (Sutton, J., concurring),

considering just the “legal issue[s] that can be decided with reference only to undisputed facts

and in isolation from the remaining issues of the case.” Mitchell v. Forsyth, 472 U.S. 511, 529,

n.10 (1985). “[T]he precise scope of our appellate jurisdiction on interlocutory appeal from a

denial of qualified immunity is whether ‘the plaintiff’s version of facts demonstrates a violation

of clearly established rights.’” Ouza v. City of Dearborn Heights, 969 F.3d 265, 277–78 (6th

Cir. 2020) (quoting Vakilian v. Shaw, 335 F.3d 509, 515 (6th Cir. 2003)).

My colleagues and I agree on that much. We disagree on a more difficult question:

whether all of Moore’s factual disputes are so “crucial to” his appeal that we lack interlocutory

jurisdiction. The majority relies on our opinion in Adams v. Blount County to hold that “[e]ven if

a defendant asserts arguments about whether the law was clearly established, if he ‘fails to

concede the most favorable view of the facts to [the plaintiff] and instead relies solely on his

version of the facts,’ this court cannot consider those otherwise valid arguments because he has

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 14

failed to satisfy a crucial jurisdictional prerequisite.” Majority Opinion at 9 (quoting Adams v.

Blount County, 946 F.3d 940, 950–51 (6th Cir. 2020). In my view, Johnson did not raise such a

high barrier to our interlocutory review, and the majority’s approach contravenes binding

precedent.

Start with the simple proposition that “[f]acts . . . are crucial to every case. How crucial

depends on context.” Sevy v. Barach, 815 F. App’x 58, 68 (6th Cir. 2020) (Readler, J.,

concurring). For example, in Johnson, the defendants’ only claim was of “evidence

insufficiency.” 515 U.S. at 307–09; see also Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994)

(“When asked at oral argument if they could lose the factual dispute and still prevail, defendants’

lawyer answered no.”). The facts there were “crucial because they [were] outcome-

determinative.” Sevy, 815 F. App’x at 68 (Readler, J., concurring); see also Barry v. O’Grady,

895 F.3d 440, 446 (6th Cir. 2018) (Sutton, J., dissenting) (“Johnson establishes an important

principle—but a limited principle. An officer may not appeal the denial of a qualified immunity

ruling solely on the ground that the plaintiff’s record-supported facts are wrong.”).

But many cases are not like Johnson. “Denial of summary judgment often includes a

determination that there are controverted issues of material fact, . . . and Johnson surely does not

mean that every such denial of summary judgment is nonappealable.” Behrens v. Pelletier,

516 U.S. 299, 312–13 (1996). Indeed, after Johnson, the Supreme Court in Plumhoff v. Rickard

“appear[ed] to cabin the reach of Johnson to ‘purely factual issues that the trial court might

confront if the case were tried.’” Roberson v. Torres, 770 F.3d 398, 403 (6th Cir. 2014) (quoting

Plumhoff v. Rickard, 572 U.S. 765, 773 (2014)). Taking these Supreme Court cases together, we

adopted “a single jurisdictional rule: we may not decide a challenge aimed solely at the district

court’s determination of the record-supported evidence, but we may decide a challenge with any

legal aspect to it, no matter that it might encroach on the district court’s fact-based

determinations.” Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018). Our approach in

those cases has been to “excise the prohibited fact-based challenge,” id., thus “‘obviating the

need to dismiss the entire appeal for lack of jurisdiction.’” Id. (quoting Estate of Carter v. City

of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)); see also DiLuzio v. Vill. of Yorkville, 796 F.3d

604, 610 (6th Cir. 2015).

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 15

Following that approach here, I find several legal challenges amenable to our

interlocutory review. First, Moore argues that he satisfied the requirements of Brady by

informing the prosecutor that other detectives had ruled out Roger Dean Gillispie as a suspect in

the rape investigation. In so doing, he accepts as true the facts stated in the summary-judgment

order. Gillispie v. City of Miami Twp., 2020 WL 5629677, at *12 (S.D. Ohio Sep. 21, 2020)

(finding that the prosecutor testified that Moore had told him Gillispie had previously been ruled

out as a suspect). But he reaches a different legal conclusion based on those facts—namely, that

he satisfied Brady by merely informing the prosecutor that Gillispie had been ruled out without

providing the supplemental reports or the relevant details they contained.

Moore further contends that the district court failed to show that his alleged Brady

violations were clearly established because the court defined the violations “at a high level of

generality” and did not point to any “clearly established law that was particularized to the facts

of the case.” We should reject these legal arguments. It was clearly established before the

events here that “the duty to disclose evidence falls on the state as a whole,” and it applies to

police as well as prosecutors. Jackson v. City of Cleveland, 925 F.3d 793, 824 (6th Cir. 2019);

see also Moldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir. 2009) (“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.”). The

evidence here, viewed in the light most favorable to Gillispie, shows only that Moore informed

prosecutors that Gillispie was previously ruled out as a suspect, not that he informed them about

the existence or exculpatory content of the supplemental reports. See Gillispie, 2020 WL

5629677, at *12.

Regarding the suggestive-identification claim, Moore argues that it was not clearly

established in 1990 that his conduct violated the Constitution because two Ohio courts concluded

that Moore’s conduct “did not violate the Plaintiff’s constitutional rights.” He thus challenges

the district court’s purely legal conclusion regarding the denial of qualified immunity. And his

argument fails because it has been clearly established since 1967 that “[c]riminal suspects have a

constitutional right to be free from identification procedures ‘so unnecessarily suggestive and

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 16

conducive to irreparable mistaken identification’ that the identification’s use violates due process

of law.” Gregory v. City of Louisville, 444 F.3d 725, 746 (6th Cir. 2006) (quoting Stovall v.

Denno, 388 U.S. 293, 302 (1967)). Police actions like displaying “the pictures of several persons

among which the photograph of a single such individual recurs or is in some way emphasized”

and “indicat[ing] to the witness that they have other evidence that one of the persons pictured

committed the crime,” which the district court found here, can meet this standard. Simmons v.

United States, 390 U.S. 377, 383–84 (1968).

Moore also asserts that he has qualified immunity from the fabrication-of-evidence claim

on at least two strictly legal bases: (1) the allegedly fabricated evidence was never admitted at

trial, so no right was violated, and (2) the district court cited no authority to show that it was

clearly established in 1990 that fabricated evidence never introduced at trial violates a

constitutional right. Both arguments also fail. In Jackson, we held (1) that fabricated evidence

need not be admitted at trial to unconstitutionally affect its outcome, and (2) that the right to a

trial free from such evidence has been clearly established for nearly a century. 925 F.3d at 816–

17.

I agree that Moore devotes a sizable majority of his argument to nonreviewable factual

challenges. But we have a duty to “excise the prohibited fact-based challenge[s] so as to

establish jurisdiction” over his legal arguments. Bunkley, 902 F.3d at 560. Following that

approach and affirming the denial of qualified immunity here would have given the parties and

the district court “clear direction as to what was at stake and what law should control the jury

trial at prongs one and two of the qualified immunity inquiry.” Barry, 895 F.3d at 449 (Sutton,

J., dissenting). “And in a future appeal, the law of the case would establish the contours of what

the jury could permissibly decide.” Id. Instead, the parties will return to the district court with

nothing gained, and over a year lost.

The majority opinion appears to recognize what is lost by dismissing the entire appeal on

jurisdictional grounds. In a footnote, it offers a hypothetical rejection of Moore’s legal

arguments. Majority Opinion at 11 n.2. But if we lack jurisdiction, we cannot reach those

questions. “Hypothetical jurisdiction produces nothing more than a hypothetical judgment—

which comes to the same thing as an advisory opinion, disapproved by th[e Supreme] Court from

No. 20-4119 Gillispie v. Miami Township, Ohio, et al. Page 17

the beginning.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998) (citing Muskrat

v. United States, 219 U.S. 346, 362 (1911); Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)). And

the issues certainly cannot be considered “actually decided” for purposes of the law-of-the-case

doctrine. Howe v. City of Akron, 801 F.3d 718, 739–40 (6th Cir. 2015) (citing 18B Charles Alan

Wright, Arthur H. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4478 (4th ed.

2015)). The approach I suggest spares the parties this uncertainty about the law governing this

case.

***

Binding authority demands that we exercise our proper jurisdiction over Moore’s legal

challenges. “Doing otherwise is a disservice to the Court and the parties.” Sevy, 815 F. App’x at

67 (Readler, J., concurring). So for the reasons above, I concur in the majority’s dismissal of

Moore’s purely factual challenges, but I respectfully dissent from its refusal to resolve his legal

challenges.