Petition for Writ of Certiorari — Woodston Maddox, Petitioner v. Andrea Miller

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------WOODSTON MADDOX,

Petitioner,

v.

ANDREA MILLER,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------KELI J. OLIVER*

MELISSA S. ROBERGE

DEPARTMENT OF LAW FOR THE

METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE

P.O. Box 196300

Nashville, TN 37219

Telephone: (615) 862-6341

Facsimile: (615) 862-6352

keli.oliver@nashville.gov

melissa.roberge@nashville.gov

Counsel for Petitioner

*Counsel of Record

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1.

Whether a person who was arrested and booked,

but never actually confined in jail or subjected to

substantial pretrial restrictions, suffers a deprivation of liberty sufficient to state a Fourth Amendment “malicious prosecution” claim against the

arresting police officer.

2.

Whether a person who is indicted on multiple

charges, including a charge not brought by the arresting officer, can prevail on a Fourth Amendment “malicious prosecution” claim against that

officer when there is no record of what was presented to the grand jury, and the officer’s role in

the “prosecution” consisted only of the arrest itself

and associated testimonial actions.

3.

Whether an officer is entitled to qualified immunity for a Fourth Amendment “malicious prosecution” claim when this Court has never expressly

recognized the existence of such a claim or defined

its potential parameters, the circuits are split as

to what can constitute a “seizure” that would support such a claim if indeed it does exist, and the

Sixth Circuit has never previously held that a

“malicious prosecution” claim was viable in a case

with similar facts to those presented here.

ii

PARTIES TO THE PROCEEDINGS

Petitioner Woodston Maddox, in his individual capacity, was the Defendant-Appellee in the Sixth Circuit Court of Appeals.

Respondent Andrea Miller was the PlaintiffAppellant in the Sixth Circuit Court of Appeals.

CORPORATE DISCLOSURE STATEMENT

Petitioner Woodston Maddox is a natural person,

not a corporation.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

CORPORATE DISCLOSURE STATEMENT ......

ii

TABLE OF AUTHORITIES .................................

vi

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................

2

STATEMENT OF THE CASE..............................

2

A.

Factual Background ..................................

3

B.

Relevant Case Proceedings .......................

6

C.

Basis for Federal Jurisdiction ...................

9

REASONS FOR GRANTING THE PETITION ...

9

I.

A SUSPECT WHO IS NOT CONFINED

DURING THE PENDENCY OF HER

CRIMINAL CHARGES AND IS ONLY REQUIRED TO CALL IN WEEKLY TO A

CASE MANAGER AND APPEAR FOR

COURT CANNOT SUSTAIN A “MALICIOUS PROSECUTION” CLAIM AGAINST

HER ARRESTING OFFICER BECAUSE

SHE HAS NOT SUFFERED THE REQUISITE DEPRIVATION OF LIBERTY............ 11

iv

TABLE OF CONTENTS – Continued

Page

II.

A PERSON WHO IS INDICTED ON MULTIPLE

CHARGES,

INCLUDING

A

CHARGE NOT BROUGHT BY THE ARRESTING OFFICER, SHOULD NOT BE

PERMITTED TO PREVAIL ON A FOURTH

AMENDMENT “MALICIOUS PROSECUTION” CLAIM AGAINST THAT OFFICER

WHEN THERE IS NO RECORD OF WHAT

WAS PRESENTED TO THE GRAND JURY,

AND THE OFFICER’S ROLE IN THE

PROSECUTION CONSISTED ONLY OF

THE ARREST ITSELF AND ASSOCIATED

TESTIMONIAL ACTIONS .......................... 16

III.

THIS COURT SHOULD REVERSE AND

GRANT QUALIFIED IMMUNITY TO MADDOX BECAUSE THE STATE OF FOURTH

AMENDMENT “MALICIOUS PROSECUTION” LAW IS PATENTLY UNSETTLED

IN PRACTICALLY EVERY RESPECT;

THUS, THERE WAS NO PRECEDENT

THAT COULD HAVE PUT MADDOX ON

NOTICE THAT HIS CONDUCT DURING

THE RELEVANT TIME FRAME WAS UNLAWFUL .................................................... 23

CONCLUSION..................................................... 28

v

TABLE OF CONTENTS – Continued

Page

APPENDIX

United States Court of Appeals for the Sixth

Circuit Opinion, dated August 3, 2017 ............ App. 1

United States Court of Appeals for the Sixth

Circuit Judgment, dated August 3, 2017 ...... App. 21

United States District Court for the Middle District of Tennessee Memorandum and Order,

dated January 4, 2017 ................................... App. 22

United States District Court for the Middle District of Tennessee Entry of Judgment, dated

January 4, 2017 .............................................. App. 29

United States Court of Appeals for the Sixth

Circuit Order denying en banc review, dated

November 8, 2017........................................... App. 30

vi

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1994) ................. 12, 13

Anderson v. Creighton, 483 U.S. 635 (1987) ...............24

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .............. 23, 24

Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) ............14

Briscoe v. LaHue, 460 U.S. 325 (1983) ........................22

Britton v. Maloney, 196 F.3d 24 (1st Cir. 1999) ..........13

District of Columbia v. Wesby, No. 15-1485, 2018

WL 491521 (U.S. Jan. 22, 2018) ..............................24

Evans v. Ball, 168 F.3d 856 (5th Cir. 1999) ................14

Ex parte United States, 287 U.S. 241 (1932) ..............16

Gallo v. City of Philadelphia, 161 F.3d 217 (3d

Cir. 1998) .................................................................14

Gerstein v. Pugh, 420 U.S. 103 (1975) .................. 11, 16

Giordenello v. United States, 357 U.S. 480 (1958) ...... 16

Harrington v. City of Nashua, 610 F.3d 24 (1st

Cir. 2010) .................................................................13

Hunter v. Bryant, 502 U.S. 224 (1991)........................23

Johnson v. City of Cincinnati, 310 F.3d 484 (6th

Cir. 2002) .................................................................12

Kaley v. United States, 134 S. Ct. 1090 (2014) ...........17

Kalina v. Fletcher, 522 U.S. 118 (1997) ................ 20, 21

Karam v. City of Burbank, 352 F.3d 1188 (9th

Cir. 2003) .................................................................14

vii

TABLE OF AUTHORITIES – Continued

Page

King v. Harwood, 852 F.3d 568 (6th Cir. 2017) ...... 8, 26

Kingsland v. City of Miami, 382 F.3d 1220 (11th

Cir. 2004) .................................................................14

Malley v. Briggs, 475 U.S. 335 (1986) ................... 20, 21

Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017) ....... 18

Miller v. Maddox, 866 F.3d 386 (6th Cir. 2017)............1

Miller v. Maddox, 2017 WL 35721 (M.D. Tenn.,

Jan. 4, 2017) ..............................................................1

Mullenix v. Luna, 136 S. Ct. 305 (2015) ............... 24, 25

Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) .............14

Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001) ....... 13

Noonan v. Cty. of Oakland, 683 F. Appx. 455 (6th

Cir. 2017) .................................................................12

Rapp v. Putman, 644 F. Appx. 621 (6th Cir. 2016) ...... 12

Rehberg v. Paulk, 566 U.S. 356 (2012) .... 16, 19, 20, 21, 22

Reichle v. Howards, 566 U.S. 658 (2012) .............. 23, 24

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) ...........14

Roberson v. Tennessee, 399 F.3d 792 (6th Cir.

2005) .................................................................... 6, 21

Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014) .......18

Saucier v. Katz, 533 U.S. 194 (2001) ..........................26

Spurlock v. Satterfield, 167 F.3d 995 (6th Cir.

1999) .................................................................. 25, 26

Wallace v. Kato, 549 U.S. 384 (2007) ..........................21

viii

TABLE OF AUTHORITIES – Continued

Page

White v. Pauly, 137 S. Ct. 548 (2017).............. 24, 27, 28

Wiley v. City of Chicago, 361 F.3d 994 (7th Cir.

2004) ........................................................................14

Wilson v. Layne, 526 U.S. 603 (1999) ..........................23

CONSTITUTIONAL PROVISION

U.S. CONST. amend. IV ...................................... passim

STATUTES

28 U.S.C. § 1254 ............................................................1

28 U.S.C. § 1291 ............................................................9

28 U.S.C. § 1331 ............................................................9

42 U.S.C. § 1983 ........................................ 2, 6, 9, 19, 20

Tenn. Code Ann. § 28-3-104 .................................... 6, 21

Tenn. Code Ann. § 39-16-602 ........................................4

Tenn. Code Ann. § 55-10-205 ........................................4

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Woodston Maddox respectfully petitions for a writ of certiorari to review the judgment of

the Court of Appeals for the Sixth Circuit in this case.

------------------------------------------------------------------

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

866 F.3d 386; it is reproduced in the appendix hereto

(“App.”) at App. 1. The opinion of the District Court for

the Middle District of Tennessee overruling the Magistrate Judge’s report and recommendation and granting summary judgment to Petitioner Woodston

Maddox is reported electronically at 2017 WL 35721

(M.D. Tenn., Jan. 4, 2017) and reproduced at App. 22.

------------------------------------------------------------------

JURISDICTION

The judgment of the Court of Appeals was entered

on August 3, 2017. By Order entered November 8, 2017

(App. 30), the Court of Appeals denied Petitioner Woodston Maddox’s petition for a rehearing en banc. This

Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

------------------------------------------------------------------

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fourth Amendment, U.S. CONST. amend. IV,

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

Section 1983, Title 42, provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. . . .

------------------------------------------------------------------

STATEMENT OF THE CASE

The questions presented arise from a summary

judgment granted by the District Court and reversed

by the Sixth Circuit as to Petitioner Maddox. The factual background of this case is discussed in limited

3

detail in the District Court and Sixth Circuit Opinions

(see App. 1-20 and 22-28, respectively). However, to

provide a full factual background, the references below

are directly to documents submitted as exhibits and

supporting materials to Petitioner Maddox’s summary

judgment motion (RE #60, PAGE ID # 243-47). The

documents are identified by name, record entry number (“RE ___”), and record page number (“PAGE ID #

___”).

A. Factual Background

This case arises out of Andrea Miller’s arrest on

August 31, 2011. Miller was driving home from work

at around midnight. (Deposition of Andrea Miller

(“Miller Depo.”), RE 60-1 at 23, PAGE ID # 249). Metro

Nashville Police Department Officer Woodston Maddox was stationed in the vicinity because he was

providing a police presence to deter retaliation against

a family who had been a witness to a shooting in the

days prior. (Deposition of Woodston Maddox (“Maddox

Depo.”), RE 60-2 at 15, PAGE ID # 272). According to

Maddox, instead of pulling over when blue lights were

activated, Miller progressed down Baldwin Court at a

high rate of speed, endangering pedestrians who were

in the area. Maddox also claimed that Miller physically

resisted his efforts to take her into custody. (Arrest Affidavits, Ex. A to Maddox Dec., RE 63-1, PAGE ID

# 354-55). Miller contends that she did neither of those

things.

4

Maddox arrested Miller and charged her with

Reckless Driving in violation of Tenn. Code Ann. § 5510-205 and Resisting a Stop in violation of Tenn. Code

Ann. § 39-16-602. (Declaration of Woodston Maddox

(“Maddox Dec.”), RE 63 at ¶ 3, PAGE ID # 350). Maddox also issued Miller a traffic citation for running a

stop sign. (Id. at ¶ 10, PAGE ID # 351). Upon arresting

Miller, Maddox drove her to the Criminal Justice Center (“CJC”) in downtown Nashville. After arriving at

the CJC, Miller went before a night court judicial commissioner via video conferencing. (Miller Depo., RE 601, at 52, PAGE ID # 264). Maddox testified before the

commissioner, and the commissioner then signed the

arrest affidavits prepared by Maddox after determining that there was probable cause for Miller’s arrest.

(Maddox Dec., RE 63, at ¶¶ 5-6, PAGE ID # 350; Maddox Depo., RE 60-2, at 41, PAGE ID # 273).

After Miller participated in the video conference

with the night court commissioner who found probable

cause, she remained at the CJC for approximately

forty-five minutes during which she was enrolled in a

pretrial release program. Participation in this program

required payment of a $35 fee, a weekly call to a case

manager, and appearing for all court dates. Participation in this program was an alternative to Miller posting a $3,000 bond. (App. 12-13). No travel or other

restrictions were placed on Miller during the pendency

of the criminal proceedings.

Subsequently, a preliminary hearing was held,

where the judge found probable cause for Miller’s arrest and bound her over to the grand jury. Maddox

5

testified at the preliminary hearing. (Maddox Dec., RE

63, at ¶¶ 7-8, PAGE ID # 350-51). The grand jury indicted Miller for Resisting Arrest (later amended to

Resisting a Stop), Reckless Driving, and Evading Arrest by Motor Vehicle. (Criminal Court file, RE 64-1, at

2-7, PAGE ID # 359-64). District Attorney Kyle Anderson had added the charge of Evading Arrest, which was

an offense for which Maddox did not charge Miller.

(Deposition of Kyle Anderson (“Anderson Depo.”), RE

60-3 at 7-8, PAGE ID # 276-77). Maddox did not testify

before the grand jury. (Maddox Dec., RE 63, at ¶ 9,

PAGE ID # 351). Sergeant David Liles, who was working as a liaison for the District Attorney’s Office at the

relevant time period, presented the testimony that led

to Miller’s indictments. (Deposition of David Liles

(“Liles Depo.”), RE 60-4 at 5, 7-8, PAGE ID # 286-88).

Sergeant Liles does not recall the substance of his testimony. He does not recall speaking with Maddox

about the case. Sergeant Liles likewise does not know

whether he reviewed arrest reports, or arrest affidavits, or any other documents, in preparing to give his

testimony or in giving his testimony. Sergeant. Liles

does not recall whether the grand jury asked him any

questions. (Id. at 29-30, PAGE ID # 289-90). There is

no audio recording or transcript of the grand jury proceedings, as Davidson County grand jury proceedings

are not recorded.

No trial was held. On June 7, 2013, the criminal

case was dismissed with prejudice upon Miller’s motion. (Anderson Depo., RE 60-3, at 17, PAGE ID # 283);

(Crim. Court File, RE 64-1 at 1, PAGE ID # 358). As for

6

the ticket for running the stop sign, Miller appeared in

traffic court and the judge ordered her to pay the

ticket. (Miller Depo., RE 60-1, at 74, PAGE ID # 270);

(Maddox Dec., RE 63, at ¶ 11, PAGE ID # 351).

After the conclusion of criminal and traffic court

proceedings, Miller filed a 42 U.S.C. § 1983 (“Section

1983”) action against Maddox alleging “malicious prosecution” in violation of the Fourth Amendment. Miller

did not allege a false arrest claim against Maddox. Any

false arrest claim would have clearly been barred by

the applicable one year statute of limitations, as Miller’s arrest occurred in 2011, and she filed her lawsuit

in 2013. See Tenn. Code Ann. § 28-3-104(a)(3); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005).

Thus, Miller proceeded solely under a “malicious prosecution” theory.

B. Relevant Case Proceedings

Miller filed suit against Maddox on November 15,

2013. Maddox moved for summary judgment on May

27, 2016. (RE 60, PAGE ID # 243-47). Maddox argued

that he was entitled to summary judgment on several

grounds. First, Maddox submitted that the grand jury

indictment of Miller on three separate charges conclusively established probable cause for her arrest. Second, Maddox argued that he was entitled to summary

judgment because his role in the prosecution consisted

merely of arresting Miller and then giving testimony

for which he was absolutely immune. Third, Maddox

reasoned that Miller’s brief time at the CJC on the

7

night of her arrest was not a deprivation of liberty sufficient to support a “malicious prosecution” claim. Finally, Maddox argued that he was entitled to qualified

immunity because it was not clearly established that

his actions could constitute “malicious prosecution,”

particularly given the rather inconsistent Courts of

Appeals decisions regarding that purported cause of

action in general, as well the Sixth Circuit’s prior decisions refusing to recognize a “secondary deprivation of

liberty” under facts similar to those in this case.

On October 13, 2016, Magistrate Judge Jeffery S.

Frensley issued a report and recommendation to the

District Court recommending denial of Maddox’s motion for summary judgment. Maddox filed objections to

the report and recommendation. Upon review, the District Judge rejected the report and recommendation,

granted Maddox’s motion for summary judgment, and

dismissed Miller’s lawsuit. (App. 22-28). The District

Court noted that there was absolutely no record of

what was presented to the grand jury that had indicted

Miller on three separate charges, and that it was undisputed that Maddox himself had not testified before

the grand jury. Accordingly, the District Court concluded, “[p]laintiff cannot sustain her burden of showing an exception to the general rule that an indictment

conclusively determines the existence of probable

cause because she cannot show that anyone deliberately or recklessly presented false testimony to the

grand jury . . . so Plaintiff has not shown a lack of probable cause.” (Id. at 26-27). The District Court also held:

“Alternatively, even if Defendant’s statements to the

8

night court commissioner (rather than testimony before the grand jury) are considered the initiation of allegedly false charges,” then “Defendant is entitled to

immunity for those statements.” (Id. at 27).

Miller appealed to the Sixth Circuit Court of Appeals. On August 3, 2017, the Sixth Circuit reversed

the grant of summary judgment to Maddox. The Sixth

Circuit stated that the District Court had erred in

granting summary judgment on the basis that Miller’s

indictments conclusively established probable cause,

given the Sixth Circuit’s subsequent decision in King

v. Harwood, 852 F.3d 568 (6th Cir. 2017), which had

created an exception to that general rule. (App. 7-8).

The Sixth Circuit also held that Miller’s participation

in the pretrial release program could constitute a deprivation of liberty separate from her initial arrest.

(App. 13). The Sixth Circuit further rejected Maddox’s

entitlement to absolute immunity for the statements

in his affidavits that were the basis of his testimony to

the judicial commissioner and likewise declined to

grant him qualified immunity, stating that “Maddox’s

alleged actions – arresting and detaining Miller based

on false pretenses and then seeking an arrest warrant

based on these false statements – violated Miller’s

clearly established constitutional rights.” (App. 15-18).

Maddox filed a petition for rehearing en banc on

August 15, 2017. That petition was denied by an Order

entered November 8, 2017. (App. 30).

9

C. Basis for Federal Jurisdiction

The U.S. District Court for the Middle District of

Tennessee has subject matter jurisdiction over this

matter because it involves a federal question. 28 U.S.C.

§ 1331. The Sixth Circuit Court of Appeals had jurisdiction over the appeal because it was an appeal from

a final decision by the District Court. 28 U.S.C. § 1291.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

A person who is criminally charged, but who remains free awaiting trial and then has her charges dismissed, should not be permitted to maintain a Section

1983 suit for “malicious prosecution” against a police

officer merely because she missed the statute of limitations for a false arrest claim. Here, the Sixth Circuit

held otherwise, despite having previously refused to

adopt the “continuing seizure” doctrine that allows a

plaintiff to essentially conflate false arrest and “malicious prosecution” claims and get a “second bite at the

apple” if she allows the statute of limitations to lapse

as to a false arrest claim. Other circuits have reached

contrary conclusions, however. Accordingly, this Court

should clarify that a Fourth Amendment “malicious

prosecution” claim, to the extent that such a claim exists at all, cannot be brought against an arresting officer when a suspect who was arrested but never

confined ultimately prevails in her criminal proceedings.

10

This Court should also grant Maddox’s Petition to

address the impact that a grand jury indictment has

on the existence of probable cause and to provide guidance as to whether the absolute testimonial immunity

afforded to officers for grand jury proceedings extends

to earlier testimonial actions as well. The Sixth Circuit

held that the indictments in this case, including an indictment for a charge not brought by Maddox, were essentially irrelevant and that Maddox was not entitled

to absolute immunity for his testimonial actions undertaken in conjunction with arresting Miller. In doing

so, the Sixth Circuit has created law that directly conflicts, or at a minimum is inconsistent with, the wellsettled precedent of this Court.

Finally, this Court should grant Maddox’s Petition

because qualified immunity is a doctrine of utmost importance to law enforcement officers whose conduct

must be governed by established law. The Sixth Circuit

shrugged off the importance of that doctrine in this

case and ignored the highly unsettled state of the law

and the disagreements among the circuits when it

comes to Fourth Amendment “malicious prosecution”

claims. Notably, under the Sixth Circuit’s ruling, an officer who makes an arrest for which probable cause is

arguably lacking is necessarily then liable for “malicious prosecution,” regardless of his lack of involvement with the actual prosecution, and regardless of

whether the suspect is actually confined following an

arrest. If this decision is left unreviewed, it will have a

chilling effect on officers’ willingness to arrest suspects

and actually swear out arrest warrants before a

11

judicial commissioner, given that that act alone is

deemed a “prosecution.”

I.

A SUSPECT WHO IS NOT CONFINED DURING THE PENDENCY OF HER CRIMINAL

CHARGES AND IS ONLY REQUIRED TO

CALL IN WEEKLY TO A CASE MANAGER

AND APPEAR FOR COURT CANNOT SUSTAIN A “MALICIOUS PROSECUTION”

CLAIM AGAINST HER ARRESTING OFFICER BECAUSE SHE HAS NOT SUFFERED THE REQUISITE DEPRIVATION

OF LIBERTY.

This case presents a Fourth Amendment question

over which the circuits are divided: whether a person

suffers a deprivation of liberty sufficient to support a

“malicious prosecution” claim merely by being charged

with a crime and required to answer those charges.

This Court, while not having squarely addressed this

issue to date, suggested otherwise in Gerstein v. Pugh,

420 U.S. 103, 125 n. 26 (1975), noting that a probable

cause determination “is required only for those suspects who suffer restraints on liberty other than the

condition that they appear for trial.”

Although one who is subjected to “prolonged detention” while awaiting trial would presumably be

“seized” pursuant to the Fourth Amendment, see Gerstein, 420 U.S. at 114, that is not the situation presented in this case. Miller was not physically detained

in jail following her arrest and her enrollment in

the pretrial release program. The Sixth Circuit

12

nonetheless concluded that Miller’s participation in

the pretrial release program, where the only conditions

of her release were to pay $35, call in weekly to a case

manager, and show up for court appearances, could be

a secondary deprivation of liberty to maintain a “malicious prosecution” claim. (App. 13-14). The Sixth Circuit did not expressly invoke the “continuing seizure”

doctrine by name in its decision, but it is from this doctrine that such a finding must flow. The “continuing

seizure” doctrine was originally articulated by Justice

Ginsburg in her concurrence in Albright v. Oliver, 510

U.S. 266 (1994). Prior to Maddox’s case, the Sixth Circuit had expressly declined to recognize the “continuing seizure” doctrine and had repeatedly granted

qualified immunity to law enforcement officers on the

basis that it was not clearly established that a person

who was not confined during the pendency of criminal

proceedings could maintain a “malicious prosecution”

claim. See Johnson v. City of Cincinnati, 310 F.3d 484,

492 (6th Cir. 2002) (“[W]e have not yet explicitly addressed the ‘continuing seizure’ doctrine.”); Noonan v.

Cty. of Oakland, 683 F. Appx. 455, 463 (6th Cir. 2017)

(“Noonan was never arrested or incarcerated, required

to post bail or bond, or subjected to any travel restrictions. In short . . . we must conclude as a matter of

law that he did not suffer a deprivation of liberty as

understood in our Fourth Amendment jurisprudence.”); Rapp v. Putman, 644 F. Appx. 621, 628 (6th

Cir. 2016) (noting that far from being clearly established, the “point of law [regarding ‘continuing seizures’ and ‘malicious prosecution’ claims] was (and

13

remains) expressly unsettled in this Circuit.”) (citations omitted).

In addition to being only newly embraced by the

Sixth Circuit in its Opinion here, the “continuing seizure” doctrine is a source of great dissension among

the Circuits. The essence of the “continuing seizure”

doctrine is that a “defendant released pretrial . . . remains apprehended, arrested in his movements . . . so

long as he is bound to appear in court and answer the

state’s charges.” Albright, 510 U.S. at 278-79 (Ginsburg, J., concurring). To date, this Court as a whole has

not spoken with regard to Justice Ginsburg’s interpretation of the law.

Many Courts of Appeals, however, have declined to

adopt the “continuing seizure” doctrine. For example,

the First Circuit rejected the doctrine in Nieves v.

McSweeney, 241 F.3d 46, 55-57 (1st Cir. 2001) (surveying cases and concluding “the view that an obligation

to appear in court to face criminal charges constitutes

a Fourth Amendment seizure is not the law”); see also

Harrington v. City of Nashua, 610 F.3d 24, 32-33 (1st

Cir. 2010); Britton v. Maloney, 196 F.3d 24, 29-30 (1st

Cir. 1999). The Nieves court stated that “the very idea

of defining commonplace conditions of pretrial release

as a ‘seizure’ for Fourth Amendment purposes seems

to stretch the accepted meaning of the term” because a

“seizure” under the Fourth Amendment “is generally a

discrete event, quintessentially an arrest, . . . , or at

least a physical detention” and “not a continuous fact,”

such as “run-of-the-mill conditions of pretrial release.”

Nieves, 241 F.3d at 55 (citations omitted). Similarly, in

14

the alleged “malicious prosecution” context and otherwise, the Fourth, Seventh, Ninth, Tenth, and Eleventh

Circuits have declined to adhere to the “continuing seizure” doctrine. See, e.g., Riley v. Dorton, 115 F.3d 1159,

1162-64 (4th Cir. 1997) (en banc); Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004); Karam v. City

of Burbank, 352 F.3d 1188, 1193-94 (9th Cir. 2003);

Becker v. Kroll, 494 F.3d 904, 915 (10th Cir. 2007);

Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th

Cir. 2004).

A minority of Circuits, now joined by the Sixth Circuit in this case, have reached the opposite conclusion.

The Second Circuit endorsed the “continuing seizure”

doctrine in Murphy v. Lynn, 118 F.3d 938, 945-46 (2d

Cir. 1997), where the plaintiff spent a night in jail following his arrest and was ordered not to leave the

State of New York while his criminal charges were

pending. The Fifth Circuit also followed the “continuing seizure” doctrine in Evans v. Ball, 168 F.3d 856,

861-62 (5th Cir. 1999), holding that the plaintiff ’s

“summons to appear in court, coupled with the requirements that he obtain permission before leaving the

state, report regularly to pretrial services, sign a personal recognizance bond, and provide federal officers

with financial and identifying information, diminished

his liberty enough to render him seized under the

Fourth Amendment.” Likewise, the Third Circuit recognized a “continuing seizure” in Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998), although the

court stated that the issue of whether a seizure had

occurred was a “close call” where Gallo’s “liberty was

15

restricted in the following ways: he had to post a

$10,000 bond, he had to attend all court hearings including his trial and arraignment, he was required to

contact Pretrial Services on a weekly basis, and he was

prohibited from traveling outside New Jersey and

Pennsylvania.”

The various Circuits obviously have divergent

views regarding whether the “continuing seizure” doctrine can be used to establish a deprivation of liberty

sufficient to maintain a Fourth Amendment “malicious

prosecution” claim in the absence of any actual confinement of a suspect during the pendency of criminal proceedings. Further, no court other than the Sixth Circuit

has held that a person suffers a deprivation of liberty

when she is not actually incarcerated following her arrest and has no significant restrictions, such as travel

restrictions or bond conditions, placed upon her during

the pendency of her criminal charges. Finally, and most

importantly, this Court in its entirety has not addressed the viability of the “continuing seizure” doctrine. This Court’s voice needs to be heard on this issue,

especially in the context of the doctrine’s application to

police officers making warrantless arrests and having

no further investigatory or prosecutorial role in the

criminal proceedings. The sheer number of disparate

Courts of Appeals decisions touching on the nature and

scope of potential Fourth Amendment “malicious prosecution” claims illustrates that the issues presented in

this case are both recurrent, important, and a source

of disagreement among the Circuits. For these reasons,

16

Maddox respectfully submits that this Court should

grant his Petition.

II.

A PERSON WHO IS INDICTED ON MULTIPLE CHARGES, INCLUDING A CHARGE

NOT BROUGHT BY THE ARRESTING OFFICER, SHOULD NOT BE PERMITTED TO

PREVAIL ON A FOURTH AMENDMENT

“MALICIOUS

PROSECUTION”

CLAIM

AGAINST THAT OFFICER WHEN THERE IS

NO RECORD OF WHAT WAS PRESENTED

TO THE GRAND JURY, AND THE OFFICER’S ROLE IN THE PROSECUTION

CONSISTED ONLY OF THE ARREST ITSELF AND ASSOCIATED TESTIMONIAL

ACTIONS.

The Sixth Circuit’s decision to reverse the grant of

summary judgment to Maddox required working

around both the conclusive presumption of probable

cause created by an indictment that this Court has repeatedly recognized and the absolute immunity afforded to testimonial conduct as discussed by this

Court in Rehberg v. Paulk, 566 U.S. 356 (2012). The

manner in which the Sixth Circuit sidestepped these

well-established legal principles is inconsistent with

this Court’s precedent and should be reviewed.

This Court has consistently held that an indictment conclusively determines the existence of probable cause. Gerstein v. Pugh, 420 U.S. 103, 117, n. 19

(1975) (citing Ex parte United States, 287 U.S. 241, 250

(1932) and Giordenello v. United States, 357 U.S. 480,

17

487 (1958)). And as the Court stated in Kaley v. United

States, 134 S. Ct. 1090, 1097-98 (2014), the term “conclusively” has been found to mean, “case in and case

out, just that.” Indeed “ ‘the whole history of the grand

jury institution’ demonstrates that ‘a challenge to the

reliability or competence of the evidence’ supporting a

grand jury’s finding of probable cause ‘will not be

heard.’ ” Id. (citations omitted).

Despite this clear directive from this Court, the

Sixth Circuit has now crafted a rule whereby only a

“rebuttable presumption” of probable cause attaches to

an indictment. The Sixth Circuit admits that it has

done so in order to avoid “harsh” results for suspects

who have been indicted. (App 8-10). Perhaps this “rebuttable presumption,” in theory, could be a workable

standard in cases where there was a record of false testimony or fabricated evidence provided to the grand

jury. But here, the Sixth Circuit applied this newly designed exception despite the fact that there is absolutely no record of what was presented to the grand

jury, essentially holding that Miller’s speculation that

the indictments must somehow have been wrongfully

procured was sufficient to overcome the presumption

of probable cause. (App. 10-11). As the District Court

properly recognized, however, there can be no inference

drawn that the indictments were based on false testimony or fabricated evidence because there is no record

of what was presented to the grand jury. (App. 27). The

sole witness before the grand jury, who was not Maddox, did not recall what he said or what he did to prepare for his testimony. (App. 26). And Miller was

18

indicted on a charge not even brought by Maddox.

(Deposition of Kyle Anderson (“Anderson Depo.”), RE

60-3 at 7-8, PAGE ID # 276-77). Under these circumstances, where there is no record at all of what was

presented to the grand jury, even the “false testimony”

exception previously endorsed by the Sixth Circuit,

which allowed a plaintiff to overcome the preclusive effect of an indictment when a defendant deliberately or

recklessly presented false testimony to a grand jury,

see Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir.

2014), would be inapplicable. This Court should review

the Sixth Circuit’s decision and clarify that, at a minimum, mere speculation cannot be relied upon to undercut an indictment’s conclusive establishment of

probable cause.1

In addition, the Sixth Circuit’s decision is inconsistent with the rationale of this Court’s decision in

1

Although this Court recognized in Manuel v. City of Joliet,

Ill., that an indictment cannot “expunge” a Fourth Amendment

claim where the record showed that the indictment was based

“entirely on false testimony” and that the proceedings were

tainted based on fabricated evidence, see 137 S. Ct. 911, 920, n. 8

(2017), Manuel did not hold that an indictment creates only a rebuttable presumption of probable cause that can somehow be

overcome when there is no evidence that any false or fabricated

evidence was presented to the grand jury. To allow the Sixth Circuit to create an avenue to collaterally attack the sanctity of a

grand jury indictment when there is no record that false testimony or fabricated evidence was presented, and when the suspect

is indicted on a charge not even brought by the police officer that

she has sued for “malicious prosecution,” would contravene decades of precedent from this Court regarding the preclusive effect

of indictments on probable cause and the importance of grand

jury proceedings.

19

Rehberg, which held that testimonial immunity barred

a Section 1983 claim against a law enforcement officer

even if that officer conspired to present and did present

false evidence to a grand jury. 566 U.S. at 367-69. Rehberg also made it clear that absolute immunity extended to preparatory actions associated with

testimony and not just the words that were spoken by

the witness:

[T]his rule [that a grand jury witness has absolute immunity from any § 1983 claim based

on the witness’ testimony] may not be circumvented by claiming that a grand jury witness

conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the

initiation or maintenance of a prosecution. . . .

In the vast majority of cases involving a claim

against a grand jury witness, the witness and

the prosecutor conducting the investigation

engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony.

We decline to endorse a rule of absolute immunity that is so easily frustrated. Id. at

1506-07 (some internal citations omitted).

566 U.S. at 369-70.

Rehberg involved a Section 1983 claim brought

against Paulk, the chief investigator for a Georgia district attorney’s office who had allegedly assisted the

district attorneys in launching an investigation and securing indictments against Mr. Rehberg for crimes

that he did not commit. Mr. Rehberg argued that Paulk

20

was not absolutely immune for his perjurious grand

jury testimony because he was a “complaining witness”

and this Court had previously held that complaining

witnesses were shielded only by qualified immunity in

Kalina v. Fletcher, 522 U.S. 118, 123 (1997) and Malley

v. Briggs, 475 U.S. 335, 342 (1986). See 566 U.S. at 370.

But the Court rejected that notion that testimonial immunity could be overcome by labeling someone a “complaining witness,” noting that the mid-19th century

practice whereby a complaining witness “procured an

arrest and initiated a criminal proceeding” had been

superseded by public prosecutors and that testifying,

whether before a grand jury or at trial, “was not the

distinctive function performed by a complaining witness.” Rehberg, 566 U.S. at 371-72.

The Sixth Circuit tried to circumvent Rehberg by

labeling Maddox a “complaining witness” who set the

wheels of Miller’s prosecution in motion and thus could

not claim absolute immunity, citing Kalina, Malley,

and even Rehberg itself as support for its conclusion in

that regard. (App. 16-17). In doing so, the Sixth Circuit

distorted Rehberg, which in actuality rejected the notion of a testifying law enforcement officer being

equated with a “complaining witness” for immunity

purposes. The Rehberg court pointed out that the “mid19th century practice” whereby a complaining witness

could initiate a criminal proceeding had been superseded by public prosecutors and explained that the

“complaining witness” category of Section 1983 claims

was not necessarily relevant, or at least not entirely

21

applicable, in today’s jurisprudence. 566 U.S. at 364-65,

370.

Moreover, the Sixth Circuit blatantly ignored the

factual distinction between this case and the Malley

and Kalina cases, where this Court had declined to extend absolute immunity – but had granted qualified

immunity – to a prosecutor and a police officer, respectively, who had made false statements in applying for

warrants that would allow them to seek a suspect’s arrest. Here, Maddox had already arrested Miller but

was required, under his jurisdiction’s rather unique

system, to take Miller before a judicial commissioner

immediately following her arrest. (Maddox Depo., RE

60-2, at 41, PAGE ID # 273). He thus went before a judicial commissioner based on the information in his arrest affidavits as part of the prosecution of Miller, not

as part of her arrest.2 Under those circumstances,

where the testimony is part of the prosecution rather

than part of the pre-arrest process, Maddox was not a

“complaining witness” attempting to file criminal

charges, but instead a witness in a judicial proceeding

whose testimony and attendant preparatory materials

2

Indeed, because Miller’s claims would be time-barred if

Maddox’s actions in testifying before the commissioner were part

of the arrest process, they must necessarily be part of the prosecutorial process in order for this lawsuit to be viable at all. See,

e.g., Wallace v. Kato, 549 U.S. 384, 391 (2007) (holding that a false

arrest claim begins to accrue on the date of the arrest itself, rather

than after disposition of the criminal charges); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005) (noting that the statute

of limitations for a false arrest claim is one year pursuant to Tenn.

Code Ann. § 28-3-104(a)(3)).

22

would be shielded by absolute immunity pursuant to

Rehberg and the well-settled principle that “[w]itnesses are immune from causes of action based on testimony given during a legal proceeding.” Briscoe v.

LaHue, 460 U.S. 325, 331-32 (1983). Simply put, the

fact that the legal proceeding here was earlier in the

prosecution than grand jury testimony does not change

the fundamental testimonial nature of Maddox’s actions, and the District Court properly granted summary judgment on that basis. (App. 27).

In declining to extend absolute immunity to Maddox for actions in testifying before a judicial commissioner and presenting arrest affidavits that he

prepared to the commissioner as part of that testimony, the Sixth Circuit distorted Rehberg and ignored

Briscoe. Accordingly, in addition to clarifying the circumstances under which the preclusive effect of a

grand jury indictment can be subject to challenge, this

Court should grant Maddox’s Petition to settle the issue of what testimonial actions are entitled to absolute

immunity.

23

III. THIS COURT SHOULD REVERSE AND

GRANT QUALIFIED IMMUNITY TO MADDOX BECAUSE THE STATE OF FOURTH

AMENDMENT “MALICIOUS PROSECUTION” LAW IS PATENTLY UNSETTLED IN

PRACTICALLY EVERY RESPECT; THUS,

THERE WAS NO PRECEDENT THAT

COULD HAVE PUT MADDOX ON NOTICE

THAT HIS CONDUCT DURING THE RELEVANT TIME FRAME WAS UNLAWFUL.

Qualified immunity attaches when an official’s

conduct “ ‘does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.’ ” And as this Court recently reiterated:

To be clearly established, a legal principle

must have sufficiently clear foundation in

then-existing precedent. The rule must be

“settled law,” Hunter v. Bryant, 502 U.S. 224,

228 (1991) (per curiam), which means it is dictated by “controlling authority” or “a robust

‘consensus of cases of persuasive authority,’ ”

[Ashcroft v.] al-Kidd, supra, [563 U.S. 731][,]

741-42 (quoting Wilson v. Layne, 526 U.S. 603,

617 (1999)). It is not enough that the rule is

suggested by then-existing precedent. The

precedent must be clear enough that every

reasonable official would interpret it to establish the particular rule the plaintiff seeks to

apply. See Reichle [v. Howards], 566 U.S.

[658][,]666 [2012]. Otherwise, the rule is not

one that “every reasonable official” would

24

know. Id. at 664 (internal quotation marks

omitted).

District of Columbia v. Wesby, No. 15-1485, 2018 WL

491521, at *11 (U.S. Jan. 22, 2018).

Recognizing the importance of the qualified immunity doctrine, this Court has repeatedly admonished lower courts that “clearly established law”

should not be defined “at a high level of generality.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). The

clearly established law must be “particularized” to the

facts of the case. Anderson v. Creighton, 483 U.S. 635,

640 (1987). Otherwise, “[p]laintiffs would be able to

convert the rule of qualified immunity . . . into a rule

of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Id. at 639. When

no case puts a defendant on notice that his conduct

during the relevant time frame was unlawful, he

should be granted qualified immunity. See, e.g., White

v. Pauly, 137 S. Ct. 548, 552 (2017). That the rule of law

be specifically delineated is “especially important in

the Fourth Amendment context.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015).

Here, Maddox was found to be potentially liable

for a purported secondary deprivation of Miller’s liberty even though she was not confined while awaiting

trial. Maddox was also found to be potentially liable for

“malicious prosecution” where he did not testify before

the grand jury and there was absolutely no record of

what was presented to the grand jury that indicted

Miller on several charges, including one charge that

25

Maddox himself did not bring. Finally, Maddox was

found to be potentially liable for “malicious prosecution” based on arrest affidavits that were presented in

conjunction with his testimony before a judicial commissioner. The Sixth Circuit’s reliance on the general

proposition that “arresting and detaining Miller based

on false pretenses and then seeking an arrest warrant

based on these false statements . . . violated Miller’s

clearly established constitutional rights” (App. 18) ignores the factual particularities of this case, the generally unclear parameters of “malicious prosecution” law

in general, and especially this Court’s oft-repeated directive that qualified immunity must be granted unless “ ‘existing precedent [has] placed the statutory or

constitutional question beyond debate.’ ” Mullenix, 136

S. Ct. at 308 (citations omitted).

The Sixth Circuit cited multiple cases in

denying Maddox qualified immunity, but those cases

did not involve facts remotely similar to those presented here. (App. 18-19). First, Spurlock v. Satterfield,

167 F.3d 995, 1002 (6th Cir. 1999), involved a suspect

actually held in custody and convicted of murder rather than someone who was never confined in jail. Additionally, the defendant in Spurlock was granted

absolute immunity for trial testimony, but that immunity was not extended to non-testimonial acts such

as attempting to bribe witnesses on multiple occasions

and tampering with evidence. Those “non-testimonial”

acts are a far cry from what the Sixth Circuit held to

be non-testimonial here: the presentation of an

26

affidavit with allegedly false statements during testimony before a judicial commissioner.

Similarly, King v. Harwood, 852 F.3d 568 (6th Cir.

2017), dealt with very different factual circumstances

than those presented here. In King, there was evidence

of fabricated evidence presented to the grand jury and

relied upon in securing an indictment, whereas here

there is no record as to what information formed the

grounds for the grand jury indictments. Second, the defendant officer in King revived a cold case that other

officers had abandoned due to a lack of probable cause,

then presented false and misleading evidence to obtain

a warrant to search the plaintiff ’s home. That officer

also made a report to the Commonwealth’s Attorney

identifying plaintiff King as her former boyfriend’s

killer and setting forth his theory of the murder. The

officer himself then sought to obtain an indictment

against King for murder and testified before the grand

jury, giving false testimony. 852 F.3d at 573-75. Further, as in Spurlock, King was actually confined in jail

based on this alleged unlawful behavior by Harwood.

None of those facts are present in Maddox’s case. Indeed, King is so factually dissimilar from this case that

its holding, even if it had been issued before the incidents underlying this action instead of years after,

could not possibly have made it “clear to [Maddox] that

his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).

In denying Maddox qualified immunity, the Sixth

Circuit did not cite a case where an officer was held

liable for “malicious prosecution” when the suspect was

27

not confined during the pendency of criminal proceedings and not subject to any travel restrictions while on

pretrial release. The Sixth Circuit did not cite a case

where an officer was held liable for “malicious prosecution” in the absence of any record that he presented

false testimony or fabricated evidence to a grand jury

that indicted a suspect on multiple charges, including

one indictment for a charge not brought by the officer.

The Sixth Circuit did not cite a case where an officer

testified before a judicial commissioner immediately

following a warrantless arrest and was found to be liable for “malicious prosecution” based upon the content

of the arrest affidavits presented as part of that testimony. Because “there is no case where an officer acting

under similar circumstances . . . was held to have violated the Fourth Amendment,” see, e.g., White v. Pauly,

137 S. Ct. 548, 552 (2017), Maddox is entitled to qualified immunity.

The Sixth Circuit also ignored the unsettled nature of the law surrounding “malicious prosecution”

claims generally, failing to address the fact that this

Court has never even held that a Fourth Amendment

“malicious prosecution” claim exists. Given the lack of

any Fourth Amendment “malicious prosecution” cases

factually similar to this one, the dearth of well-settled

standards for what the elements of a “malicious prosecution” claim may be, and the obvious divergence

among the circuits as to whether merely being required

to answer criminal charges is a “seizure” that can support a “malicious prosecution” claim, the Sixth Circuit

erred in not granting Maddox qualified immunity. This

28

Court, recognizing the importance of qualified immunity to “society as a whole” and the apparently increasing numbers of Courts of Appeals that seem to

misapprehend the purposes and application of this important doctrine, should reverse that decision. See id.

at 551-52 (noting that this Court has had to reiterate

to Courts of Appeals, particularly in recent years, that

“clearly established law” is not to be defined “at a high

level of generality”) (citations omitted).

------------------------------------------------------------------

CONCLUSION

WHEREFORE, Petitioner Woodston Maddox respectfully requests that this Court grant his Petition

for a Writ of Certiorari to the Court of Appeals for the

Sixth Circuit.

Respectfully submitted,

KELI J. OLIVER*

MELISSA S. ROBERGE

DEPARTMENT OF LAW FOR THE

METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE

P.O. Box 196300

Nashville, TN 37219

Telephone: (615) 862-6341

Facsimile: (615) 862-6352

keli.oliver@nashville.gov

melissa.roberge@nashville.gov

Counsel for Petitioner

*Counsel of Record