Andrew Longuski v. Ryan Akers

NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0370n.06

Case Nos. 21-2688/2711

FILED

UNITED STATES COURT OF APPEALS Sep 12, 2022

FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

)

ANDREW LONGUSKI,

)

Plaintiff-Appellee, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE WESTERN

RYAN AKERS (21-2688); GARY DEMERS ) DISTRICT OF MICHIGAN

(21-2711), )

Defendants-Appellants. ) OPINION

)

Before: COLE, NALBANDIAN, and BUSH, Circuit Judges.

NALBANDIAN, Circuit Judge. President John F. Kennedy once remarked that “nothing

compares to the simple pleasure of a bike ride.” Andrew Longuski would have agreed before the

events that unfolded one spring night in May 2018. That night, while attending a conference on

Mackinac Island in Michigan, Longuski hitched a ride on the back of a friend’s bicycle. The pair

only made it a block before a local trooper pulled them over. Double-riding, it turned out, violated

Michigan law. And the bicycle, Longuski soon learned, had been stolen from a local.

What started as a joyride resulted in a criminal prosecution. Longuski was arrested and

charged for petty larceny and disturbing the peace. But the case never went to trial, and the

prosecutor dropped the charges.

Longuski sued the two officers involved, arguing that the prosecution violated his Fourth

Amendment rights. The officers asserted qualified immunity in response, but the district court

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Nos. 21-2688/2711, Longuski v. Akers, et al.

denied their motions. For the following reasons, we reverse one officer’s appeal and dismiss the

other officer’s appeal for lack of jurisdiction.

I.

In mid-May 2018, First Lieutenant Andrew Longuski, a long-serving officer with the

Michigan State Police, arrived on Mackinac Island for a professional conference. The conference

kicked off on a Friday night. And as its official festivities—an opening banquet—wound down,

its unofficial festivities—a bar crawl—began.

Longuski hit the town with some of his fellow officers. The group started their night at the

Pink Pony Bar but decided to move the party to Horn’s Gaslight Bar & Restaurant a few hours

later. A little over a block separates the Pink Pony from Horn’s. So the revelers set off on foot.

That is, all the revelers except for Sergeant Derrick Jordan, who “rode past the group[] on a bike

he had brought to the Pink Pony.” (R. 28, First Amended Complaint, PageID 400.) Longuski saw

his chance to hitch a ride and skip the walk to Horn’s. He asked Jordan “to hold on a minute so

he could jump on” behind him. (Id.)

The pair covered about 40 yards before Trooper Ryan Akers stopped them. Double-riding,

Akers warned, violated Michigan law. Chastened, Longuski and Jordan got off the bike, left it in

the middle of the street, and continued to Horn’s. In the meantime, another officer ran the tags on

the bike. The search revealed that the bike had been reported stolen earlier that night. After

learning about the theft, Akers returned to Horn’s to confront the joyriding pair.

Outside the bar, Akers accused Longuski and Jordan of stealing the bike and asked them

to accompany him to the police station. Longuski proclaimed his innocence to Akers. Jordan

backed him up. Tensions flared, and the encounter culminated in Longuski telling Akers to “either

book him for possessing a stolen bike or let him go back to the restaurant.” (Id. at PageID 402.)

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Akers let the two off the hook—but only for the moment. The next morning, Akers

submitted an investigative report and a warrant request for Longuski and Jordan. He recommended

that Longuski and Jordan be charged with “larceny less than $200 and disorderly conduct.” (R.

31-3, Akers Investigation Report, PageID 448.) Another officer submitted a report as well. And

a third officer, Gary Demers, received the two reports and sent them to the prosecutor. The

prosecutor agreed with Akers’s recommendations, authorizing charges for larceny less than $200

and disturbing the peace.

The charges didn’t stick. A few months later, the prosecutor dropped the case against

Longuski without prejudice. Longuski then sued Akers and Demers for violating his Fourth

Amendment rights, contending that both officers “omitted exculpatory information, with reckless

disregard for the truth, when providing information to the Prosecutor[.]” (R. 28, First Amended

Complaint, PageID 406.) The officers moved for summary judgment on qualified immunity

grounds, which the district court denied. This interlocutory appeal followed.

II.

We start with the basics: The Fourth Amendment “conditions warrants on probable cause

and prohibits unreasonable seizures.” Newman v. Township of Hamburg, 773 F.3d 769, 771–72

(6th Cir. 2014). Under clearly established law, an officer violates those basics “only when his

deliberate or reckless falsehoods result in arrest and prosecution without probable cause.” Id.; see

also Tlapanco v. Elges, 969 F.3d 638, 655 (6th Cir. 2020). The resulting claim is known as

malicious prosecution. It requires a plaintiff to show that the officer lacked probable cause, that

the officer “participated” in the prosecution decision, and that the plaintiff was seized as a result.

See Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010) (brackets omitted).

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Longuski asserts such a claim. We ask two questions in response. Did Akers and Demers

violate his constitutional rights? And if so, was the unlawfulness of their conduct clearly

established at the time? See District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). The

district court denied summary judgment, refusing to consider either question since “questions of

material fact” remained. (R. 41, Order & Op., PageID 643.) We review its decision de novo,

asking whether, on Longuski’s view of the facts, Demers and Akers are entitled to judgment as a

matter of law. See Tlapanco, 969 F.3d at 647. But we lack jurisdiction over either officers’ appeal

if their “sole argument . . . goes to whether there exists a genuine issue of fact for trial.” Gregory

v. City of Louisville, 444 F.3d 725, 743–44 (6th Cir. 2006). This is because a defendant denied

qualified immunity may bring an interlocutory appeal only if that appeal involves an “abstract or

pure legal issue.” Id. at 742 (quotation omitted).

Akers. Our analysis begins with probable cause. Probable cause exists when there are

enough “facts and circumstances” to make a reasonable officer believe that the “accused was guilty

of the crime charged.” Webb v. United States, 789 F.3d 647, 660 (6th Cir. 2015) (internal quotation

omitted). “An objective, not a subjective, standard applies.” Barrera v. City of Mt. Pleasant,

12 F.4th 617, 620 (6th Cir. 2021). The question is whether the evidence—including the known

exculpatory evidence—adds up to probable cause at the time of arrest. See Klein v. Long, 275

F.3d 544, 551–52 (6th Cir. 2001); Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000).

Longuski contends this probable-cause calculation comes out in his favor. According to

him, Akers’s investigative report contained false information and omitted exculpatory information.

Correct those mistakes, he argues, and the bottom falls out of the prosecution’s case. To assess

this claim, we replace parts of Akers’s report with Longuski’s version of the story. See Penn

v. Bergtold, 803 F. App’x 900, 905 (6th Cir. 2020) (citing Darrah v. City of Oak Park, 355 F.3d

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301, 312 (6th Cir. 2001)). That swap leads to a few key differences. First, that the video footage

showed Jordan rode up to the Pink Pony on the bike alone, and Akers saw this footage. Second,

that the Pink Pony’s hostess told Akers that everyone thought the bike belonged to Jordan. Third,

that Jordan insisted Longuski knew nothing about the bike. And fourth, that the surveillance and

body-camera footage showed that Longuski didn’t act intoxicated or use swear words.

Although Akers’s appeal pays lip-service to Longuski’s account, most of his probable-

cause arguments contest Longuski’s version of the facts. He claims that “the surveillance video

described” in Longuski’s complaint “was not readily available to” him; that Longuski appeared

“highly intoxicated and used frequent profanity”; and that “Jordan had not ridden any kind of bike

to the Pink Pony,” instead taking it from the curb. (Akers Br. at 9, 22; R. 31-3, Akers Investigation

Report, PageID 446.)

Our probable-cause analysis turns on these contested facts. Consider the larceny charge

first. Michigan law makes it a misdemeanor to take and carry away the “personal property” of

another “with intent to steal that property” and “permanently deprive [the victim]” of it. People

v. March, 886 N.W.2d 396, 404 & n.6 (Mich. 2016) (quoting 3 Torcia, Wharton’s Criminal Law

347 (15th ed.)); People v. Cain, 605 N.W.2d 28, 44 (Mich. Ct. App. 1999). We are hard-pressed

to see how a reasonable officer with access to the Pink Pony’s surveillance footage could believe

that Longuski intended to “permanently deprive” the victim of her bicycle. According to

Longuski, that footage showed that Jordan rode the stolen bike to the Pink Pony alone, exited the

venue 11 minutes later, got on the bike by himself, and peddled for about a minute before Longuski

joined him. To be sure, a reasonable officer who viewed the video would have probable cause to

believe someone—likely Jordan—had a hand in the bike theft. But no such probable cause exists

for Longuski, who did not carry away the bike and had no reason to know it was stolen. Akers

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defends against this conclusion by asserting he didn’t have access to the video footage. But this

argument turns on a contested fact, not law. So we lack jurisdiction to consider it.

The same goes for the disturbing-the-peace charge. The prosecutor charged Longuski

under a Michigan statute that makes it a misdemeanor to “make or excite” a “disturbance . . . in

any . . . street, lane alley, [or] highway.” Mich. Comp. Laws § 750.170 (“Disturbance of lawful

meetings”). A disturbance, under that law, is “[a]ny act causing annoyance, disquiet, agitation, or

derangement to another, or interrupting his peace.” People v. Weinberg, 149 N.W.2d 248, 252

(Mich. Ct. App. 1967) (quoting Black’s Law Dictionary 563 (4th ed., 1951)); see also People

v. Rice-White, No. 350350, 2021 WL 220801, at *2 (Mich. Ct. App. Jan. 21, 2021) (explaining

that disturbance “embraces more than actual or threatened violence”; rather, it sweeps in “an

interruption of peace and quiet; a violation of public order and decorum”). And a conviction, under

that law, is often upheld where the evidence shows a defendant’s loud and abusive behavior

disrupted a public place or meeting.1

Longuski insists he didn’t curse, act intoxicated, or raise his voice. On this version of the

facts, we doubt a reasonable officer would have probable cause to believe that Longuski “excite[d]

any disturbance” or “interrupt[ed] the peace and quiet” of Mackinac Island’s downtown bar scene.

1

Compare Leonard v. Robinson, 477 F.3d 347, 361 (6th Cir. 2007) (holding that no reasonable

officer would find that probable cause existed to arrest a member of the public who used an

explicative while speaking at a chaired public assembly), with Burton v. City of Detroit, No. 20-

CV-12182, 2022 WL 479413, at *5 (E.D. Mich. Feb. 16, 2022) (finding probable cause to arrest

the defendant for making a disturbance under § 750.170 where the defendant “refused to leave the

meeting” even after he was ruled out of order three times), Rice-White, 2021 WL 220801, at *2–3

(upholding a conviction under § 750.170 where a defendant’s screaming accusations at the

sheriff’s deputies “violated the courthouse’s decorum, and interrupted the work of at least three

clerks”), People v. Bedwell, No. 344820, 2019 WL 2439333, at *3 (Mich. Ct. App. June 11, 2019)

(same where the defendant was “being loud and using swear words” in a courthouse), and People

v. Mash, 206 N.W.2d 767, 770 (Mich. Ct. App. 1973) (same where the defendant took part in an

afterhours sit-in at a public university and the sit-in prevented the janitor from doing his job).

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See Mich. Comp. Law. § 750.170; Rice-White, 2021 WL 220801, at *3. Akers responds by

insisting that Longuski acted “highly intoxicated and used frequent profanity.” (Akers Br. at 9.)

But this reasoning, too, turns on contested facts. We thus lack jurisdiction over this argument as

well.

Because Akers failed to “concede the most favorable view of the facts to the plaintiff,” we

dismiss his appeal for lack of jurisdiction. Adams v. Blount County, 946 F.3d 940, 948 (6th Cir.

2020) (internal citation omitted).

Demers. Our analysis for Demers’s appeal starts in a bit of a different place. As we just

explained, probable cause for either charge looks dubious on Longuski’s version of the facts. But

lack of probable cause, in and of itself, isn’t enough to make or break a malicious-prosecution

claim. Longuski must also show Demers “participated” in the prosecutor’s charging decision. See

Sykes, 625 F.3d at 308–09 (brackets omitted). In most cases, a prosecutor’s independent charging

decision breaks the causal chain for malicious-prosecution purposes. One exception exists: Where

an officer’s deliberate or reckless falsehoods result in prosecution without probable cause. See id.

Longuski contends that his malicious-prosecution claim against Demers falls within this exception.

We disagree.

As we see it, Demers played at best a supporting role here. Longuski’s argument to the

contrary goes as follows. Demers swore out the arrest warrants and filed a supplemental report

about the video evidence. So Demers had “actual possession of exculpatory evidence” but failed

to flag it and stop Longuski’s arrest. (Longuski Br. at 15.) Failure to flag the evidence, Longuski

continues, amounts to concealing the evidence. And concealing the evidence, he concludes, puts

Demers on the hook for malicious prosecution.

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Not so. To start, Longuski’s complaint mentions Demers only a few times. His affidavit

focuses solely on Akers. And his own exhibits put Demers in the clear. When Akers sent over

the videos, Demers turned them over to the prosecutor. And in his report about that evidence,

Demers listed the body camera videos along with the surveillance tape from the Pink Pony, Horn’s

Bar, and the Chippewa Hotel. To be sure, his descriptions of the videos are brief. (R. 37-3, Supp.

Report, PageID 624 (“This body-cam footage shows the interaction that law enforcement on

Mackinac Island had with the suspects, as well as an interview with a witness . . . . This surveillance

footage shows the suspects riding upon the stolen bicycle, and some of their interactions in/about

some of the local establishments on the island.”).) Still, his summaries described the videos’

content and contained no falsehoods or misstatements.

In the end, any brevity on Demers’s part “at worst shows negligence or perhaps a lack of

attention to detail.” Newman, 773 F.3d at 772. But mere negligence, without more, does not

“amount to malicious prosecution.” Id.; see also Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir.

2015) (holding that “absent allegation[s] of blameworthy conduct . . . ‘neutral’ participation is

insufficient to sustain a [] valid malicious prosecution claim”). This means Longuski’s claim fails,

and Demers is entitled to qualified immunity. See Newman, 773 F.3d at 772.

III.

For these reasons, we dismiss Akers’s appeal for lack of jurisdiction and reverse the district

court’s denial of summary judgment for Demers.

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