Lead Opinion
Dwayne Provience filed this action under 42 U.S.C. § 1983 and Michigan law, claiming due process violations under Brady v. Maryland,
On March 24, 2000, a man named Rene Hunter was murdered in Detroit, Michigan. Witnesses indicated that the perpetrators were two black males who pulled up next to Hunter at the corner of Greenfield Road and Pembroke Street in an older-model gray four-door Chevrolet Caprice Classic. The passenger in that car fatally shot Hunter from inside the car, which then sped off down a nearby side street. Hunter had been taken from the home of a friend, Courtney Irving, by men in a white Cadillac, and dropped off at the corner where he was killed. Courtney Irving lived next door to a gang of drug-dealеrs, run by Sorrell “Ready” Mosley and his nephew, Antrimone “Terry” Mosley. Irving was himself murdered on April 24, 2000, purportedly because the Mosleys discovered that Irving was preparing to inform the police that the Mosleys murdered Hunter for stealing a large amount of marijuana from them. Witnesses at the Irving murder scene reported that the perpetrators fired shots from inside a white Cadillac and a gray-colored vehicle
Sergeant David Moore of the Detroit Police Department was in charge of investigating the Hunter murder. A progress note on the investigation noted that the Hunter and Irving murders were connected and that a man named Maurice “Ban-gy” Sutherland had information about both murders. The progress note reads:
These t[w]o Homicide files are joined at the hip, because the two complainants were together when Rene [Hunter] got killed and Cour[t]ney [Irving] was going to tell who and why they killed Rene. Bangy has gotten a lwayer [sic] and wants to talk to us now (Attorney Blank 313-275-1551). He is going to come in on Monday at 11:00 am, 5/15/00. Maurice Sutherland AKA Bangy has the info we need to close these cases. Mr. Sutherland is the key. He is the set up person on Rene Hunter’s case.
R. 1-1 at 2. Sutherland met with investigators on May 15, 2000, but did not provide any information on the murders. Two weeks later, Sutherland was also murdered.
In June 2000, the police arrested Larry Wiley, a drug addict with a prior criminal record, for several burglaries. Wiley told the police that he had witnessed the Hunter murder, that Provience was the shooter, and that Provience’s brother drove the getaway car. Wiley claimed that he had been riding his bicycle in the area and saw Provience and his brother in a beige or yellow Buick Regal when the victim, Hunter, jumped out of their car. Wiley told police, “I saw Dewayne [sic] shoot the guy in the head.” Wiley claimed that Provience shot Hunter “[o]ver some drug money,” and that “[everybody knew that they had a beef.” However, contrary to what other witnesses had told police at the scene — that the car was a gray Chevrolet Caprice, that multiple shots were fired, and that the car turned right onto Greenfield and headed north — Wiley told investigators that the getaway car was a “beige or yellow [Buick] Regal,” that only one shot was fired, and that the car fled “[d]own Pembroke [westbound] from Greenfield.” Wiley was given a deal on his burglary charges in exchange for testifying against Provience.
Provience and his brother were arrested and prosecuted for Rene Hunter’s murder. The progress note connecting the Hunter and Irving homicides was not turned over to Provience’s counsel during discovery. Provience’s brother was acquitted following a bench trial, but Provience was convicted by a jury of second-degree murder in February 2001. The prosecution’s theory of the case was that Provience murdered Hunter because Hunter posed a threat to Provience’s drug territory. Wiley testified for the proseсution at Provience’s trial, but Provience was not advised that Wiley had been given a deal in exchange for his testimony. Provience was sentenced to a prison term of thirty-two to sixty-two years.
In 2002, Eric Woods, a friend of the Mosleys, confessed to the murder of Courtney Irving. Woods told police that Terry Mosley directed him to kill Irving because Irving was going to tell the police that the Mosleys were responsible for the Hunter murder. Woods’s confession was never disclosed to Provience’s counsel, even though Provience’s case was being appealed at the time. Provience exhausted his appeals in 2006. Law students at the University of Michigan Innocence Clinic began reviewing Provience’s case in
Provience then filed this action in federal district court under 42 U.S.C. § 1983 and Michigan law. Provience argued that Sergeant Moore’s failure to disclose the following material exculpatory evidence violated Provience’s due process rights under Brady: (1) the progress note, (2) a photo of Ready Mosley and field notes of police officer William Ashford, which were provided to Sergeant Moore’s investigation team, (3) police documents from the Irving and Sutherland homicide files connecting the Hunter, Irving, and Sutherland homicides, and (4) “off the record” statements of Chris Peavey, a friend of Rene Hunter and Courtney Irving, who told investigators that Provience did not shoot Hunter. Provience also claimed that Sergeant Moore arrested him without probable cause and influenced the decision to prosecute by not turning over to prosecutors the exculpatory evidence cited above.
The defendants moved for summary judgment, arguing that Moore was entitled to qualified immunity and that the city of Detroit was not liable under a municipal-liability theory. The district court denied that motion. Provience v. City of Detroit, No. 10-11719,
This court has jurisdiction over the defendants’ interlocutory appeal under 28 U.S.C. § 1291 because denial of summary judgment based on qualified immunity is an immediately appealable collateral order. Mitchell v. Forsyth,
On this appeal, Sergeant Moore has not shown that he is entitled to qualified immunity on the Brady claim. Qualified immunity shields government officials performing discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
In Brady,
Contrary to defendants’ argument, Pro-vience has shown that the evidence at issue is favorable to him as exculpatory or impeaching, that the evidence was suppressed, and that he was prejudiced by the suppression. These are the requirements for a Brady violation sufficient to reverse a conviction. See Harbison v. Bell,
First, the progress note is material exculpatory evidence under Brady and its progeny because, considered collectively with the other evidence withheld during discovery, it is favorable to Provience and tends to establish his innocence. Brady defined material exculpatory evidence as evidence “favorable to an accused ... [and] material either to guilt or to punishment.” Brady,
Second, there is no dispute that the evidence was suppressed, because Sergeant Moore never turned the progress note over to the prosecutor. Third, Provience was likely prejudiced by the suppression because there is a reasonable probability that Provience’s trial would have produced a different result if the progress note had been turned over. This court has noted that favorable evidence is material for Brady purposes “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the рroceeding would have been different.” Castleberry v. Brigano,
At trial, the prosecution’s theory — that Provience killed Hunter in a dispute over drug territory — would likely have been undermined by the progress note. The note indicates that Irving was killed by someone who wanted to prevent Irving from offering information about Hunter’s murder, suggesting that the person responsible for Irving’s murder would also be implicated in Hunter’s murder. The progress note might also have helped impeach Wiley, and because the case against Provience relied so heavily on Wiley’s testimony, the note’s suppression undermines the reliability of the verdict. Provience has raised a triable fact issue as to whether the progress note’s suppression violated his constitutional rights under Brady. Moreover, defendants do not argue that, to the extent there may have been a Brady violation, the right at issue was not clearly established.
Whether the other evidence suppressed by the police — the photograph of Ready Mosley, field notes of Officer Ashford, the police documents from the Irving and Sutherland files, and the off-the-record statement of Chris Peavey — is material exculpatory evidence under Brady is less clear. Although this evidence is probably favorable to Provience, it is likely not material because it is cumulative of other evidence. Undisclosed evidence that is cumulative of other evidence does not support a Brady violation. See United States v. Warshak,
The photograph is probably nonmaterial because Ready Mosley’s identity was never at issue, and it provides no additional information about Hunter’s murder. There is no indication that Officer Ash-ford’s field notes or the documents from the Irving and Sutherland police files contained any information not already brought out at trial. Finally, Chris Peav-ey’s statement, which indicated that Provience was not the person who killed Rene Hunter, would only have added one more voice contradicting Larry Wiley’s eyewitness account.
These additional bits of evidence are probably nonmaterial for Brady purposes. Moreover, this court has previously concludеd that the evidence withheld from the defense must be viewed collectively, rather than item by item, to determine the cumulative prejudicial effect. See Beuke v.
On the false-arrest claim, Sergeant Moore is, however, entitled to qualified immunity because the police had probable cause to arrest Provienee based on Wiley’s eyewitness statement. Provienee has not met his burden, which is to show that no reasonable officer would have concluded, under the totality of the circumstances, that probable cause to arrest existed. See Parsons v. City of Pontiac,
Probable cause, supported by “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,” bars a false-arrest claim under § 1983. See Criss v. City of Kent,
Our precedent establishes that an investigating officer has probable cause to make an arrest based on an eyewitness account, “unless, at the time of the arrest, there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation.” Ahlers v. Schebil,
In addition, Sergeant Moore’s belief that probable cause existed was reasonable. Although an officer “cannot look only at the evidence of guilt while ignoring all exculрatory evidence,” an officer does not “have [an obligation] to investigate independently every claim of innocence” and need only “consider the totality of the circumstances.” Gardenhire v. Schubert,
Because Provience has not made the required showing that there was a lack of probable cause for the criminal prosecution, Sergeant Moore is also entitled to qualified immunity on the malicious-prosecution claim. To establish a claim for malicious prosecution under § 1988, Provience “must show that there was a lack of probable cause for the criminal prosecution.” Sykes v. Anderson,
Finally, Provience cannot state a prima facie claim of malicious prosecution under Michigan law. Provience bears the burden of establishing lack of probable cause in a malicious-prosecution action. See Matthews v. Blue Cross & Blue Shield,
The district court’s judgment with respect to the Brady claim is affirmed, the district court’s judgment with respect to the remaining claims of false arrest and malicious prosеcution under federal and state law is reversed, and the case is remanded for further proceedings consistent with this opinion.
Notes
. Sergeant Moore stated that Judge B. Pennie Millender signed the arrest warrant for Dwayne Provience and his brother, on June 29, 2000. See Moore Depo., R. 78-1 at 17.
Concurrence Opinion
concurring in part and dissenting in part.
The majority has concluded that the district court properly denied Sergeant Moore’s motion for summary judgment with respect to Provience’s Brady claim, but that the district court erred in denying Sergeant Moore qualified immunity with respect to the false-arrest and malicious-prosecution claims. I fully agree with the majority that the Brady claim should go forward. Contrary to the majority, however, I would affirm the district court’s denial of summary judgment on the other claims as well. I therefore respectfully dissent from the decision to grant Sergeant Moore qualified immunity on any of the claims raised by Provience.
I. Probable Cause
The crux of my disagreement with the majority is its conclusion that “Sergeant Moore had probable cause to seek a warrant for Provience’s arrest.” Maj. Op. at 667. A lack of probable cause is an essential element of both the false-arrest and the malicious-prosecution claims. The majority has therefore relied on its probable-cause determination to hold that Provience’s claims on these issues must fail. That determination is, in my opinion, erroneous under this court’s relevant precedents.
“Probable cause justifying an arrest ‘means facts and circumstances within the
Of all the sources of information known to Sergeant Moore in June 2000, the majority cites only one that purportedly supports the decision to arrest Provience—a statement from Larry Wiley, a drug addict with a prior criminal record who had just been arrested for several burglaries and who claimed to have witnessed Rene Hunter’s murder several months earlier. The majority correctly notes that “[o]ur precedent establishes that an investigating officer has probable cause to make an arrest based on an eyewitness account, ‘unless, at the time of arrest, there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation.’ ” Maj. Op. at 667 (quoting Ahlers v. Schebil,
First, I question whether Ahlers should apply to the present case at all. The Ahlers decision cites earlier unpublished decisions of our court for the rule that eyewitness identifications are generally sufficient to support probable cause. See United States v. Amerson, No. 93-6360,
This distinction is important because the reason that eyewitness identifications have been determined to independently support probable cause is that they “are based on firsthand observations” and therefore “are
Second, even if Ahlers does apply here, the majority errs in its application of that precedent because it pays only lip service to the principle that an eyewitness’s identification cannot support probable cause if there is an apparent reason at the time of arrest for the police officer to believe that the witness is lying or mistaken. Maj. Op. at 667. The majority particularly fails to explain how all of the facts known to Sergeant Moore at the time he sought a warrant for Provience’s arrest would not have given him reason to disbelieve Wiley’s statement. Indeed, if Sergeant Moore is deemed not to have had an apparent reason to disbelieve Wiley based on the facts in this record, then I believe that the actual standard being applied is that an uncorroborated eyewitness identification supplies probable cause unless the officer has proof beyond a reasonable doubt that the witness is lying or mistaken. Such a standard, of course, has no basis in the precedent of this court or the Supreme Court.
Certainly an eyewitness identification need not “be consistent with all other available evidence” nor “comport with every detail of other witnesses’ statements” in order to provide probable cause for an arrest. Maj. Op. at 667. But when nearly all the other available evidence not only conflicts with the purported identificatiоn, but also points consistently to a suspect other than the person identified by the putative eyewitness, then such evidence easily provides an apparent reason to believe that the putative eyewitness is either lying or mistaken.
The majority notes three major discrepancies between Wiley’s statement and the statements taken from multiple eyewitnesses at the scene of the crime shortly after the shooting: (1) discrepancies regarding the color and make of the car from which the assailant shot Hunter, (2) discrepancies regarding the number of shots fired, and (3) discrepancies regarding the direction in which the car was driven after the shooting. Maj. Op. at 663. A reasonable officer might not pay much heed to conflicts in any one of thesе details, especially if the officer (unlike in the present case) had an independent reason to believe that the person making the identification actually witnessed the crime. But Sergeant Moore had reason to disbelieve Wiley even beyond the cumulative discrepancies in these material details between Wiley’s version of events and the version consistently described by the witnesses who were indisputably at the scene. By the time that Wiley offered his version, the police had statements from witnesses who knew Hunter, who saw him being taken away in a white Cadillac after having a confrontation with one of Sorrell Mosley’s nephews, and who saw Terry Mosley follow the Cadillac in a gray Chevrolet Caprice soon before Hunter was shot. Moreover, investigating officers had communicated this information to Sergeant Moore both orally and through written “progress notes.”
In contrast, the investigating officers in Ahlers and in Skousen v. Brighton High School,
Ahlers involved a male corrections officer who had been accused by a female inmate in the county jail of forcing the inmate to perform oral sex on him in exchange for food.
A prosecutor determined that these circumstances provided probable cause to arrest Ahlers and charge him with two counts of criminal sexual conduct. Id. Not until the days leading up to Ahlers’s rescheduled preliminary hearing did the complainant’s “recollection of the incident [become] vague and inconsistent with her prior story.” Id. This posi-arrest recollection was not considered relevant to the question of whether there was probable cause to arrest Ahlers and clearly was not the eyewitness statement that the Ahlers court concluded had “provided Defendants with ample probable cause.” Id. at 371. Indeed, the court specified that it was “[t]he facts as initially discovered” that provided the “ample probable cause,” id. (emphasis added), not the “vague and inconsistent” post-arrest recollection, as the majority suggests.
Unlike in the present case, the plaintiff in Ahlers did not even attempt to show that the defendants had an apparent reason to think that the complainant’s “eyewitness identification was in some way untruthful or unreliable.” See id. Ahlers instead “wish[ed] to hold [the defendants] liable for evidence which they failed to collect and, therefore, of which they were unaware.” Id. at 372. Here, Provience does not argue that Sergeant Moore would have uncovered an apparent reason to disbelieve Wiley’s statement had he undertaken further investigation. Rather, Provience contends that Sergeant Moore already had information in hand to cast such serious doubt on Wiley’s statement that the statement could not provide probable cause for the arrest.
This court’s decision in Skousen is equally unhelpful to the majority’s position. In that case, the investigating officer “obtained the eyewitness testimony of the victim, Rebecca, which was verified by the testimony of her father, another eyewitness.” Skousen,
In sum, neither Ahlers nor Skousen supports the outcome reached by the majority. Instead, this court’s decision in Gardenhire v. Schubert,
Similar to the circumstances in Garde-nhire, the police officers investigating Hunter’s murder believed, based on statements from multiple witnesses that corroborated one another, that one of Sorrell Mosley’s nephews was the shooter and likewise thought that Wiley was lying when he identified Provienee as the shooter. And whereas the officer in Gardenhire had independent inculpatory evidence apart from the complainant’s statement that the goods had been stolen, the sole information on which Sergeant Moore could rely in arresting Provienee was Wiley’s statement. This is presumably why the only informatiоn that Sergeant Moore included in his request for an arrest warrant was that Wiley had identified Provience as the shooter, omitting all of the other information that the police had gathered in three months of investigating Hunter’s murder. I therefore conclude that a jury could find from the facts in the record that Sergeant Moore arrested Pro-vience without probable cause.
II. Qualified Immunity
Furthermore, Sergeant Moore is not entitled to qualified immunity because Provience’s right to be free from arrest in the absence of probable cause was “clearly established” in a “particularized ... sense” at the time of his arrest. See Anderson v. Creighton,
Couching the qualified-immunity analysis in terms of whether an officer acted intentionally, knowingly, recklessly, or negligently, see Maj. Op. at 667 (citing Ahlers,
At the time of Provience’s arrest, this court had established that an eyewitness’s identification may constitute probable cause for an arrest unless there is an apparent reason for the officer to disbelieve the eyewitness. See Ahlers,
As discussed above, a jury could easily find that the facts available to Sergeant Moore at the time that he sought the warrant to arrest Provienee provided ample and apparent reason to question the veracity of Wiley’s statement. The fact that none of the officers investigating Hunter’s murder (possibly including Sergeant Moore himself) thought that Wiley’s statement was accurate further supports the conclusion that a reasonable officer in Sergeant Moore’s position would have recognized the apparent reasons to doubt the statement’s veracity. Sergeant Moore’s decision to pursue an arrest warrant under these circumstances therefore raises a triable jury issue that should preclude granting Sergeant Moore qualified immunity on the claims in question.
The majority’s determination — as a matter of law — that Sergeant Moore had probable cause to arrest Provienee is the basis for its decision to reverse the district court’s judgment with respect to both the false-arrest and malicious-prosecution claims. Maj. Op. at 667-68. Because I do not join in this determination, I would affirm the district court’s denial of Sergeant Moore’s motion for summary judgment on all grounds.