Fawaz Ghaith v. Don Rauschenberger, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0893n.06

FILED

No. 11-1780

Aug 14, 2012

UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk

FOR THE SIXTH CIRCUIT

FAWAZ GHAITH, )

)

Plaintiff-Appellant, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

DON RAUSCHENBERGER, JR., RICHARD I. )

DRESSER, and SCOTT GORDON, )

)

Defendants-Appellees.

Before: BATCHELDER, Chief Circuit Judge, KEITH and DONALD, Circuit Judges.

DAMON J. KEITH, Circuit Judge. Plaintiff-Appellant Fawaz Ghaith (“Ghaith”) appeals

a district court order granting the defendants’ motion for summary judgment and dismissing his

§ 1983 civil rights complaint against several state police officers and county prosecutors. Ghaith was

arrested and charged with four counts of extortion after he reportedly made various threats to his

daughter and other members of his family. After a mistrial, prosecutors dropped the charges when

they were unable to confirm that Ghaith actually made the threatening phone calls that formed the

basis of the charges. Ghaith then brought this federal civil rights suit against the state officials, his

wife, and his in-laws, alleging that they conspired to have him falsely arrested and charged with

extortion so that his wife, who lived in Jordan with their children at the time, could renew her

youngest son’s passport, leave the country with her children, and divorce Ghaith. The facts of this

case are troubling, but the evidence establishes that the police officers had probable cause to believe

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that Ghaith threatened his family and nothing in the record supports Ghaith’s claims that his rights

to parent his children and be free from excessive bail were violated. Accordingly, we AFFIRM.

I.

A.

At the time of the events leading to this lawsuit, Ghaith and Dawn Ghaith (“Dawn”) were

married with four children: Lana, Mohammed, Samer, and Hanan. Both Ghaith and Dawn were dual

United States-Jordanian citizens with a permanent residence in Jordan, but Ghaith divided his time

between Jordan and the United States, where he worked as a truck driver for a company called

Schneider National. By August 2008, Dawn had decided that she wished to divorce Ghaith and

return to the United States with their children to live closer to her mother and stepfather, Marion and

Jerry Breasbois, who lived near Bay City, Michigan. The main obstacle to her leaving was the fact

that their youngest son, Samer, would not be able to leave Jordan until his expired Jordanian passport

was renewed. Under Jordanian law, Samer’s passport could only be renewed by Samer’s father,

Ghaith, unless Ghaith was dead or in prison.

Hanan, the couple’s eldest daughter, who had a valid passport, traveled to the United States

in August 2008 to live with her grandparents, Marion and Jerry Breasbois. Hanan left Jordan after

Ghaith’s brother (Hanan’s uncle) reportedly beat her at Ghaith’s instruction for talking with boys on

her mobile phone. Ghaith, who was in the United States at the time for work, called his daughter

when he learned that she was in the country. They spoke several times between August 28 and

September 2, 2008, and their conversations were described by Ghaith as “pleasant.” Also during this

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time period, Ghaith received and accepted an invitation from his in-laws to have dinner at their house

in Michigan on September 2, 2008.

Unbeknownst to Ghaith, the Breasboises contacted the Gladwin County Sheriff on August

29, 2008, to report that Ghaith was harassing and threatening them and their granddaughter, Hanan.

The Breasboises also contacted the Michigan State Police to make the same report. Ghaith alleges

that these reports were false and that his in-laws conspired with Dawn to have him arrested and

prosecuted so that Dawn could renew Samer’s passport under Jordanian law and return to Michigan

with all of her children. Still unaware of the complaint against him, on September 1, 2008, Ghaith

confirmed the invitation to have dinner at the Breasboises’ house at 5:00 p.m. the following day.

On September 2, 2008, the Breasboises contacted Defendant-Appellee Detective Don

Rauschenberger of the Michigan State Police to report that Ghaith was coming to their home at 5:00

p.m. that evening to take Hanan back to Jordan and that Ghaith had threatened to kill them if they

stood in his way.

B.

Rauschenberger came to the Breasboises’ home at approximately 1:00 p.m. on September

2, 2008, to interview the Breasboises and Hanan about Ghaith’s alleged threats. Rauschenberger

stated that immediately upon arriving, he was told that Ghaith had just called to say that he was

about 300 miles away and would arrive at the Breasboises’ home that evening. What transpired

while Rauschenberger was at the Breasboises’ home forms the heart of the dispute in this appeal.

Rauschenberger’s police report indicates that he was in the home from approximately 1:00 p.m. to

3:00 p.m. The Breasboises’ phone records indicate that Ghaith called their home at 1:25 p.m. and

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that the call lasted about 21 minutes. In his report, Rauschenberger described his interview with

Hanan, who explained that her uncle had beaten her and that she left Jordan in response, which made

her father very angry. Rauschenberger’s report also states that Marion told him about Ghaith’s past

history of physically abusing his wife, Dawn, that Ghaith made threats on the telephone directly to

Marion, and that Ghaith expressed his intent to retrieve Hanan and “kill anyone who gets in his

way.” The report further notes that Dawn called the house while Rauschenberger was there and that

she expressed her concern that Ghaith would follow through on his threats. Dawn also told

Rauschenberger that she could not leave Jordan because of Samer’s expired passport and that she

could not renew it without Ghaith’s permission. The report states that Rauschenberger made

arrangements to take Marion and Hanan to a women’s shelter, that he asked them to prepare written

statements, and that Jerry remained at the house. The report does not mention the 21 minute phone

call from Ghaith to the Breasboises’ home at 1:25 p.m.

The report also describes Rauschenberger’s contact with Schneider National, the trucking

company for which Ghaith worked. It states that Rauschenberger spoke with Ghaith’s supervisor,

who confirmed that Ghaith’s truck was in Indianapolis as of 10:30 a.m. and that Ghaith had

expressed his need to get to Michigan because of “family trouble with his daughter.” Ghaith’s

supervisor reportedly said that Ghaith “seemed pretty serious about” his family troubles.

Rauschenberger asked Hanan to call Ghaith later that day from the police station to get Ghaith to

make statements that would confirm the reports, but they were unable to reach Ghaith on the phone.

The report states that Rauschenberger contacted the Bay County Prosecutor’s Office and that

Defendant-Appellee Scott Gordon stated he felt there was enough probable cause to arrest Ghaith

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for extortion. (Gordon stated in an affidavit that he generally recalls having a conversation with

Rauschenberger, but that it would not be his usual practice to declare whether he believed probable

cause existed.)

C.

Ghaith arrived at the Breasboises’ home with groceries for dinner at about 5:00 p.m. on

September 2. Nobody was home, so Ghaith waited in the car and called Dawn in Jordan. He twice

called the Breasboises’ home just after 6:00 p.m., but there was no answer. Once notified that

Ghaith was at the house, Rauschenberger returned there with State Police Officers Michael

Newsham and Mark E. Burch at about 7:20 p.m. The officers approached and arrested Ghaith, who

was still waiting in his car in the driveway.

There are factual disputes regarding what each party said and did after Ghaith was arrested.

When told why he was being arrested, Ghaith reportedly told Rauschenberger that it was a

misunderstanding based on a “communication error” and that “these people have no right to interfere

with my family.” (In his affidavit, Ghaith denies having said this.) The officers searched his vehicle,

finding no weapons or contraband. Ghaith alleges that, upon handcuffing him, Rauschenberger said

that “the girls over here do what they want when they are eighteen.” Contradicting Rauschenberger’s

statements, Ghaith contends that Rauschenberger never read him his Miranda rights and denies

having told the police officers not to touch the Koran in his car—indeed, he claims there was no

Koran in his car. He further denies saying there was a “communication error” with his daughter and

denies that Rauschenberger asked him whether his daughter speaks Arabic. He denies telling

Rauschenberger that he spoke to Hanan or Marion around 3:00 or 3:30 that afternoon. And he denies

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telling Rauschenberger to look at his phone to check the call history to confirm those calls. After

a preliminary hearing, Ghaith was charged with four counts of extortion, and transported to the Bay

County Jail where he was held on a $500,000 bond.

Jordanian authorities were informed of Ghaith’s arrest and Samer was issued a new passport.

Rauschenberger provided a copy of his police report to the United States embassy in Jordan after

receiving approval from Defendant-Appellee Richard Dresser, a county prosecutor. After Samer’s

passport problem was resolved, Dawn traveled to the United States with Samer, Lana, and

Mohammed, arriving on September 11, 2008.

D.

Ghaith was tried on the extortion charges, but a mistrial resulted when the jury could not

reach a verdict. On the eve of the new trial, the Bay County Prosecutor’s Office dismissed all of the

charges against Ghaith and released him from jail after investigators were unable to confirm the

threatening phone calls Ghaith allegedly made because of discrepancies between the reported times

of the calls and Ghaith’s phone records. Ghaith had spent 196 days in custody.

Ghaith sued in federal court under 42 U.S.C. § 1983, asserting that his constitutional rights

were violated by several state officials, including Detective Rauschenberger and Bay County

Prosecutors Richard Dresser and Scott Gordon. He also raised several claims under Michigan tort

law. As to his federal claims, Ghaith alleged that the defendants conspired to violate his

constitutional right to parent under the Fourteenth Amendment by “fraudulently procuring a

Jordanian passport” for Samer and “conspiring to circumvent” Jordanian law. He also alleged that

his arrest, the $500,000 bond set before trial, and his trial violated the following rights: his right to

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be free from false arrest, unreasonable search and seizure, and malicious prosecution; his rights to

a fair trial; and his right to be free from excessive bail. He also raised a § 1985 claim based on an

alleged conspiracy among the defendants to violate his civil rights and a Monell claim seeking

municipal liability under § 1983. Dawn, who was originally named as a defendant, filed a motion

for judgment on the pleadings on the grounds that she was not a state actor and therefore could not

be liable under § 1983. The district court granted her motion as to the federal claims. The police

officers and prosecutors filed motions for summary judgment, and the district court, finding that the

defendants were entitled to qualified or absolute immunity because Ghaith’s constitutional rights

were not violated, granted the motions on March 10, 2011. The court entered a final order on May

23, 2011, after finding that it did not have jurisdiction over the remaining state law claims. Ghaith

appealed.1

II.

A.

We review a district court’s grant of a motion for summary judgment de novo, construing

the evidence and drawing all reasonable inferences in favor of the non-moving party. Ireland v.

Tunis, 113 F.3d 1435, 1440 (6th Cir. 1997). Summary judgment is proper if, after viewing the

evidence that way, there are no genuine issues of material fact, and the moving party is entitled to

judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986); Fed. R. Civ. P. 56(a). The moving party has “the burden of showing the absence of a

1

On appeal, Ghaith argues only that the district court improperly dismissed the claims against

the police officers (Rauschenberger, Newsham, and Burch) and the prosecutors (Dresser and

Gordon). Accordingly, we limit our review to those issues.

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genuine issue as to any material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). 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).

When faced with a properly-supported summary judgment motion, the non-movant must provide

“significant probative evidence” to defeat the motion. Id. In reviewing the record at the summary

judgment stage, we do not make credibility determinations, weigh the respective value of evidence,

or resolve material factual disputes. See Briggs v. Potter, 463 F.3d 507, 513 (6th Cir. 2006).

B.

Ghaith raises several issues on appeal related to his § 1983 claims. He mainly argues that

he was arrested without probable cause, in violation of the Fourth Amendment, and that the district

court improperly held that the officers had probable cause. He also argues that his constitutional

right to parent and his right to be free from excessive bail were violated by the defendants. We

review each issue in turn.

1. Probable cause for extortion

Section 1983 provides for civil liability for a state actor acting under color of law who

deprives someone of their constitutional rights. 42 U.S.C. § 1983. Ghaith claims that his arrest

violated the Fourth Amendment because Rauschenberger made false statements in official

documents in an effort to establish probable cause, which Ghaith argues the officers did not, in fact,

have. Ghaith concedes that his Fourth Amendment claims against the state defendants depend upon

the officers’ lacking probable cause to arrest him for extortion.

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The Fourth Amendment prohibits unreasonable searches and seizures, including arrests, but

a “warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is

probable cause to believe that a criminal offense has been or is being committed,” Devenpeck v.

Alford, 543 U.S. 146, 152 (2004). The Supreme Court has explained that “‘probable cause’ to justify

an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant

a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the

suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo,

443 U.S. 31, 37 (1979). But an arrest supported by probable cause nonetheless is improper if the

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

statements or omissions that create[d] a falsehood and such statements or omissions [we]re material,

or necessary, to the finding of probable cause.” Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010)

(internal quotation marks and citations omitted); see also Hinchman v. Moore, 312 F.3d 198, 205-06

(6th Cir. 2002) (“Falsifying facts to establish probable cause to arrest and prosecute an innocent

person is of course patently unconstitutional . . . .”)

State officials are shielded from liability in a § 1983 case by qualified immunity where

(1) there has been no violation of a constitutional right or (2) the right at issue was not “clearly

established at the time of [the] defendant’s alleged misconduct.” Grawey v. Drury, 567 F.3d 302,

309 (6th Cir. 2009) (citations and quotation marks omitted). Courts may examine these two prongs

in either order and a failure to satisfy either prong is fatal to the plaintiff’s claims. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009) (“The 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

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qualified immunity analysis should be addressed first in light of the circumstances in the particular

case at hand.”).

The offense for which Ghaith was arrested is the Michigan crime of extortion. In Michigan,

anyone who “threaten[s] any injury to the person or property or mother, father, husband, wife or

child of another with intent thereby to . . . compel the person so threatened to do or refrain from

doing any act against his will” has committed felony extortion. Mich. Comp. Laws § 750.213.

Ghaith does not argue that the threats—if made—would not constitute extortion, so the main

question before us is whether there was probable cause to believe that Ghaith made the threats as

alleged. The district court concluded that the police officers were entitled to qualified immunity

because the officers had probable cause to believe Ghaith threatened his family and therefore there

was no constitutional violation for arresting him. Specifically, it held, “[t]he credible reports of

Hanan, Dawn, and Marion Breasbois suggesting that [Ghaith] threatened to kill them if Hanan did

not return to Jordan established probable cause to arrest [Ghaith] for extortion.” We agree.

Ghaith argues that Rauschenberger’s failure to mention the 21-minute phone call that took

place while he was reportedly in the Breasboises’ home constitutes a deliberate false statement that

undermines the existence of probable cause. Ghaith, however, does not point to specific facts

establishing that Rauschenberger knew about this phone call. He argues that “Rauschenberger

manipulated his account of the arrest to support his decision that there was probable cause,” and

“select[ed] information that would show [Ghaith’s] alleged criminal intentions while editing out

information that would contradict such a showing.” And when that purported omission is coupled

with Rauschenberger’s allegedly false statements about his remarks and actions when he arrested

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Ghaith, Ghaith argues that “there was ample evidence to show that Rauschenberger was prejudiced

against [Ghaith] and sought to railroad him on the basis of his ethnicity and religion.”

Rauschenberger responds that “the facts supporting probable cause to arrest Ghaith are

legion.” He points to (1) Marion’s original phone call reporting the threats; (2) the “exigency of the

situation” given that Ghaith reportedly was only 300 miles away; (3) Marion’s and Hanan’s similar

description of the threats in their interviews; (4) Dawn’s report on the phone of the threats; (5) the

circumstances described by Ghaith’s manager at the trucking company; (6) the apparent sincerity of

the family’s fears; and (7) Ghaith’s behavior and statements when confronted by Rauschenberger

with the allegations. In essence, Rauschenberger argues that any factual disputes that exist are

immaterial to determining whether probable cause existed at the time of Ghaith’s arrest. Even after

ignoring the last point, which does not speak to the facts that were known to the officer at the time

of arrest, Rauschenberger is correct.

To be sure, Ghaith’s affidavit submitted in opposition to the motion for summary judgment

creates numerous factual disputes in this case. But nearly every dispute involves purported

statements or actions by the parties that took place after Ghaith was arrested, and none of them

significantly affects whether there was probable cause. The undisputed facts show that the police

received credible reports of serious threats made by Ghaith and that the subsequent investigation

corroborated those reports. It is strange that Rauschenberger’s police report fails to mention the 21-

minute phone call from Ghaith, but there is no evidence from which we can infer that

Rauschenberger actually knew that phone call was made. And, more broadly, there is no evidence

from which a reasonable jury could infer that the various state defendants entered into a conspiracy

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with Ghaith’s family to have him arrested without justification. In the end, the fact that the phone

call was not mentioned does not undermine all of the other facts known to the officers at the time

indicating that Ghaith may have threatened his family.

The cases relied upon by Ghaith involve deliberate or reckless misstatements or omissions

by police officers that materially affected whether there was probable cause in the first place, not

whether the police officers harbored some personal prejudice or bias. See, e.g., Sykes v. Anderson,

625 F.3d 294, 301-02 (6th Cir. 2010); Miller v. Prince George’s Cnty., 475 F.3d 621, 626-27 (4th

Cir. 2007). Although some of the statements Rauschenberger allegedly made may show that he was

biased, none of the factual disputes arising from those statements affects the probable cause

determination. In other words, Rauschenberger’s purported bias does not change what a reasonable

police officer could have believed here. Cf. Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he

fact that the officer does not have the state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does not invalidate the action taken as long as

the circumstances, viewed objectively, justify that action.”) Because there was probable cause at the

time of arrest that Ghaith committed extortion by threatening his family, the district court properly

held that there was no constitutional violation and the state police officers are entitled to qualified

immunity.2 And because a lack of probable cause is an element of a federal malicious prosecution

claim, see Sykes, 625 F.3d at 308-09, our conclusion precludes Ghaith’s claim to this effect.

Accordingly, we affirm the dismissal of the federal malicious prosecution claims.

2

Having concluded there was probable cause here, we do not address the parties’ arguments

regarding whether collateral estoppel should prevent Ghaith from challenging the existence of

probable cause in this appeal.

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We next address the claims against Defendants-Appellees Dresser and Gordon, the Bay

County Prosecutors. Because prosecutors are not absolutely immune when they are acting in an

investigative manner, rather than as advocates, see Buckley v. Fitzsimmons, 509 U.S. 259, 273-74

(1993), we focus on qualified immunity. The district court, having found that probable cause

existed, held that Dresser and Gordon are entitled to qualified immunity because “[t]here is no

factual support or legal authority for [the] assertion that the prosecutors violated [Ghaith’s]

constitutional rights, much less a clearly established right. Although [the prosecutors] provided

advice to Rauschenberger, there is no indication that the advice was wrong, much less

constitutionally prohibited.” Ghaith summarily argues that Dresser and Gordon are not entitled to

immunity because there is “a factual question about whether the prosecutors willfully disregarded

evidence that would have led away from a conclusion that there was probable cause to arrest”

Ghaith. But Ghaith does not point to any evidence in the record that creates such a factual question

or that suggests they disregarded evidence. Accordingly, Dresser and Gordon are entitled to

summary judgment and the district court properly dismissed the claims against them.

2. Right to parent

Ghaith claims that Rauschenberger violated his constitutionally-protected right to parent by

notifying the Jordanian embassy of his arrest to facilitate Dawn’s efforts to take Samer to the United

States. The Supreme Court has recognized that the Fourteenth Amendment, through Substantive

Due Process, provides parents with a right to make decisions regarding the care, custody, and control

of their children. Troxel v. Granville, 530 U.S. 57, 66 (2000). See also Smith v. City of Fontana,

818 F.2d 1411, 1418-19 (9th Cir. 1987). Courts (particularly the U.S. Supreme Court) have not

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thoroughly addressed the scope of this right in the context of a criminal investigation, but the

available case law suggests that a state actor’s conduct affecting this right must “shock the

conscience” to be actionable under § 1983. Rosenbaum v. Washoe County, 663 F.3d 1071, 1079 (9th

Cir. 2011); see also id. (“A parent has a fundamental liberty interest in companionship with his or

her child. A state may not interfere with this liberty interest, and indeed the violation of the right to

family integrity is subject to remedy under § 1983. To amount to a violation of substantive due

process, however, the harmful conduct must shock the conscience or offend the community’s sense

of fair play and decency.” (internal quotation marks and citations omitted)).

Ghaith argues that the police officers violated his constitutional right to parent by

“intentionally interfer[ing] with his relationship with his children.” Specifically, he argues that

Rauschenberger learned about the status of Samer’s passport—namely, that it could only be renewed

without Ghaith’s permission if he were dead or in jail—and that Rauschenberger’s decision, made

with Dresser’s approval, to notify the Jordanian embassy of Ghaith’s arrest violated his right to

parent. But aside from this generalized allegation of a conspiracy, Ghaith has not pointed to specific

acts by Rauschenberger or any other defendant that interfered with his right to family integrity that

a reasonable jury could conclude “shock the conscience.” Putting aside the question whether the

scope of Ghaith’s right to parent in this context was clearly established at the time of

Rauschenberger’s actions,3 Ghaith’s generalized allegations are insufficient to establish a

3

Although it is “clearly established that the Constitution recognizes . . . a substantive

fundamental right to raise one’s child,” Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir. 2000), the

dearth of guidance on the scope of this right in the relevant context suggests it likely is not

sufficiently clearly established to defeat qualified immunity.

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constitutional violation or create a material factual dispute. The district court properly granted

summary judgment for the defendants on this claim.

3. Excessive bail

Finally, Ghaith argues that his Eighth Amendment right to be free from excessive bail was

violated when the state court bound him over for trial and set bail at $500,000 at the preliminary

hearing. The district court dismissed this claim, noting that Ghaith had not cited any cases or

explained why the police officers or prosecutors would be individually liable under § 1983 based on

the court’s imposition of a bond. None of the defendants in this appeal was directly involved in the

state court’s decision to impose the $500,000 bond.4 Nevertheless, Ghaith argues on appeal that the

district court “overlook[ed] the fact that the police officers and prosecutors manipulated the state

court’s decision regarding bail by making false statements and distorting the facts in an effort to

show that Plaintiff should be associated with the dangers of Islamic fundamentalist terrorists.” This

argument is meritless. Ghaith does not offer any cases or point to specific facts that suggest that any

of the defendants could be liable for the state court’s imposing a $500,000 bond. The district court

properly dismissed this claim.

III.

For the foregoing reasons, the district court’s judgment is AFFIRMED.

4

Moreover, to the extent Ghaith implicitly argues that the prosecutors’ appearing at a bond

hearing and arguing against a reduction in bond is the relevant conduct, the prosecutors would be

shielded by absolute prosecutorial immunity for such conduct since they were acting as advocates.

See Buckley, 509 U.S. at 273-74.