Jeffrey Moldowan v. Maureen Fournier

however, contrary argument, runs to the

law this and other circuits. While the

district court was free to consider this as a fashioning

factor in both a sentence and

deciding whether it should run consecu-

tively concurrently, it obliged was not

impose simply a concurrent sentence be-

cause the district did not have a fast-track

program.

We AFFIRM the district court’s sen-

tence.

Jeffrey MOLDOWAN, Michael

Plaintiff-Appellee, WARREN, Ingles,

CITY OF Donald Mi (07-2115);

chael Schultz Alan War (07-2116);

nick Maureen Fournier

(07-2117), Defendants-Appellants. 07-2115, 07-2116,

Nos. 07-2117.

United States Appeals, Court of

Sixth Circuit.

Argued: Jan. 2009.

Decided July and Filed: Rochkind, Garan

ARGUED: Rosalind P.C., Detroit, Miller, Michigan, Bri- Lucow Richtarcik, Associates, Chapman & an J. P.C., Hills, release, Michigan, Bloomfield Sarah R. After his Moldowan filed the Prout, Aid, Huron, civil Legal asserting Lakeshore Port instant action various claims Warren, Michigan, against City for Appellants. Michael R. Dez- of the Warren si, Department, County, Police Fieger, Fieger, Kenney, & Macomb Johnson Gir- oux, Southfield, County Macomb in his Michigan, for Prosecutor official Appellee. Rochkind, Warwick, capacity, Dr. Alan ON BRIEF: Jami E. Warren Police Rosalind Leach, P.C., Detroit, Miller, Ingles, Detective Garan Lucow Donald Warren Police Richtarcik, Christian, Mark Michigan, J. Officer Brian Ronald and Fournier. W. Associates, P.C., Chapman, subsequently Moldowan his com- Chapman & amended Hills, plaint against to assert claims Warren Michigan, Bloomfield Sarah R. Po- Prout, lice Knight, Broadly William R. Officer Michael Schultz. Lakeshore Le- Aid, speaking, gal alleges Moldowan Township, Michigan, Clinton for that the De- Susselman, Appellants. acting separately Marc M. fendants—both and Dennis con- Dettmer, Detroit, spiring together—violated A. rights for his civil Michigan, Appel- him, fabricating against lee. failing evidence evidence, exculpatory to disclose pur- and MOORE, CLAY, Before: and prosecution suing his and retrial without KETHLEDGE, Judges. Circuit probable cause. After discovery, Defendants moved CLAY, J., delivered the of opinion the summary for judgment thirty-six on all court, MOORE, J., in which joined. counts asserted in Moldowan’s Third KETHLEDGE, 746-52), (pp. J. delivered Complaint raising Amended various immu- a separate opinion concurring nity dismissing defenses. After certain

judgment in part dissenting in part. against counts Ingles, Detective the City Warren, of and Warren Depart- Police OPINION ment, dismissing all against counts CLAY, Judge. Circuit Christian, Officer the district court denied Defendants’ summary motions for judg- action, In this Jeffrey Plaintiff Moldow- all respects. ment in other These three (“Moldowan”) asserts a number of interlocutory appeals For followed. claims under 42 U.S.C. alleging herein, reasons set forth we AFFIRM IN rights Fourth, violations of his under PART and REVERSE IN PART the Fifth, Amendments, Sixth and Fourteenth judgment of the district court. aswell claims under Michigan state law. arrest, Moldowan’s claims arise out his I. conviction, criminal prosecution, and retri- Complaint Moldowan’s Third Amended al 1990 abduction and brutal sexual thirty-six asserts claims nine coun- (“Fournier”). assault Maureen Fournier ty, municipal, and individual defendants. After new light evidence came to and a All claims arrest, arise out Moldowan’s key prosecution witness recanted her testi- prosecution, conviction, criminal and retri- mony, the Michigan Supreme Court re- al for the abduction assault Mau- versed Moldowan’s conviction reen Fournier. Moldowan, People 466 Mich. (2002). retrial,

N.W.2d On in Febru- Background A. Factual ary Moldowan was acquitted of all released, charges and having nearly served morning August On the years twelve in prison. (“EMS”) Emergency Medical Service assault, badly lying prior in to the had returned to injured and found Fournier City evening in the of Detroit. EMS Michigan August the street the until the Hospi- John’s Fournier to St. transported night rest of spent and with his completed on her tal. The medical forms girlfriend confirmed girlfriend. Tapp’s his hospital, as well as subse- to the admission alibi. testimony from reports and quent medical 17-18, 1990, September On the Macomb doctors, witness to the extreme her bear County preliminary held a Circuit Court deter- brutality of the crime. examination to determine whether suffi- that Fournier had been abducted mined proceed cient evidence existed to to trial. Warren, brutally assault- City from the hearing, During Fournier testified in raped, ed and left on street De- and that, assault, she prior had dated troit. and lived with Moldowan for more than a had been abducted Because Fournier year relationship before their ended when Warren, was from the matter turned over assaulting he was for Four- arrested her. (“De- Department Police the Warren nier her both pri- and sister testified assigned was partment”), and the case attack, had or Moldowan been abu- Given the extent of Ingles. Detective sive toward Fournier and threatened her. injuries, officers had wait Fournier’s assault, describing testi- Fournier they could interview her days two before walking been fied that she had on Mile then, Even the ex- regarding the attack. pulled along- Road in when a van injuries Warren forced Detective tent of Fournier’s board, questions on a and side Moldow- Ingles to write her. Fournier testified that During van, her, responded Fournier kind.1 got grabbed an out of the and interview, reported that she had Fournier van, dragged her into the where she was night from on the been abducted Warren raped. beaten and As a result of the males, by August four Caucasian assault, significant inju- Fournier suffered all knew. Fournier stated of whom she required ries that extensive abdominal sur- walking that, while down the she gery. Moldowan, street, by approached she was hearing, Corcoran also testified into ex-boyfriend, her thrown who was received a call from an stating she van, light-colored brutally and white on August unidentified male raped and three of the four beaten Detroit, day inquir- Fournier was found her attack- assailants. Fournier identified ing to Fournier’s whereabouts. Corcor- Cristini, Cristini, Tracy ers as Michael Jim immediately recognized that she claims Fournier’s Tapp (“Tapp”), and Moldowan. (“Corcoran”), sister, the caller as Moldowan. Corcoran testi- con- Colleen Corcoran that, although Fournier’s that Moldowan fied she knew that her sis- firmed claims and previously had assaulted threatened hospital, ter was she lied told Fournier. that her was at Moldowan sister home her, then ex- with Moldowan investigation, the completing

After their “No, not.... She’s at the claimed: she’s charged all four indi- police arrested and (J.A. 889.) also testi- morgue.” Corcoran subsequently dropped viduals. The fied had called her home that Moldowan his charges against Tapp based on alibi Fournier, day looking for days previous had that he been Texas several form, signed. Ingles subsequently which she later transcribed Detective responses statement to a witness Fournier’s countering testimony that had stated that “he was Dr. Warnick’s Moldowan con- (J.A. 841-42.) cerning going get her.” the bite-mark evidence. examination, rebuttal, On prosecution the the At the conclusion the called Dr. D.D.S., Hammel, Pamela a colleague court dismissed Jim Cristini as a defen- Dr. Warnick, dant, testimony over Mi- who offered corrobo- but bound Moldowan and rating supporting and Dr. jury all A trial Warnick’s con- chael Cristini on counts. 1991, clusions. April May was held from 30 to during which Fournier and Corcoran of- 10, 1991, May On the jury convicted substantially testimony the same fered Moldowan and of kidnaping, Cristini as- they during preliminary the ex- provided murder, sault with intent to commit and amination. Fournier also testified she that two counts of criminal sexual conduct in neighbor-

had never been the Detroit degree. sentencing, first After her, hood where EMS found and that she court entered an order that requiring “[a]ll frequented had a never crack house custody in the evidence of the Warren area. Department, Police the Macomb County addition, Warwick, D.D.S.,

In Prosecutor’s Office and Macomb Coun- Dr. Alan Court[,] ty Circuit odontologist whether admitted forensic and consultant for into [,] Wayne County preserved evidence or not ... be Medical Of- from Examiner’s this date forward until further County, fice and order of the consultant Macomb Court, Michigan Circuit County, Michigan Appeals, Monroe and State Court of (J.A. 2613.) Police, expert Michigan Supreme Court.” testimony offered bite on Fournier’s marks neck were consistent trial, a private After investigator hired with impressions dental taken from Mol- by witness, family Moldowan’s located a dowan, and that bite on marks Fournier’s Jerry Burroughs, that, reported who on right right arm and side were consistent 9, 1990, morning August he saw four with Michael Cristini’s In de- dentition. African-American males standing around a conclusions, scribing his Dr. Warnick testi- lying naked white female who fied that the “chances ... are 2.1 billion to street, that he saw the four men leave 1 that another individual can make those light-colored in a van. Burroughs further (J.A. 2544.) same marks.” recounted approximately one week assault, after the he overheard two of defense, presenting In their Cristini and those same men talking about the incident alibi Moldowan offered witnesses who tes- bragging they participated had togeth- tified that the defendants were not Burroughs assault. also indicated that evening er on the in question. The de- had he seen Fournier in that neighborhood pizza fense also introduced delivery tickets several times summer frequenting a pizza which documented the location of the crack house in the area. deliveries Cristini had night made the August seeking to show that Cris- evidence, new addition Dr. tini part could not have been kidnap- Hammel, being approached after several ing. The presented testimony defense also years later Moldowan’s appellate coun- from a witness who sel, claimed she ob- testimony. also recanted her Dr. served several males in the street where Hammel explained initially that she had found, Fournier was the males matching trouble the defendants’ denti- were both Caucasian and African-Ameri- body, tions the bite marks Fournier’s can. The also expert defense offered testi- but that had Dr. Warnick reassured her mony odontologists from its own highly forensic that Dr. Sperber, Norman re- History of had El. Procedural re- odontologist, forensic spected Dr. and confirmed Instant Action the evidence viewed subsequent- conclusions. Warnick’s After January 28, brought On Moldowan Sperber had never determining that Dr. ly asserting action numerous this civil claims case, in the Dr. any evidence reviewed Michigan under 42 1983 and state U.S.C. Dr. “had Warnick Hammel surmised ultimately law. filed three Moldowan in to mislead deceptive [her] order been resolving In complaints. amended ear- his conclu- testifying support in of into discovery, the regarding lier motion dis- 2 (J.A. 2568.) affidavit, In a sworn sions.” following summary the trict court offered she known stated had Dr. Hammel by of claims Moldowan in his asserted that Dr. representation that Dr. Warnick’s Complaint, operative Amended Third the evidence was had reviewed Sperber pleading juncture: agreed untrue, never have to she “would (Third complaint Plaintiffs current support in of testify as a rebuttal witness Complaint February Amended filed (J.A. 2568.) Dr. conclusions.” Warnick’s 2006) against of 36 alleges a total counts new evidence and basis of this On the groups City several of defendants: of testimony, again Moldowan discredited Warren; Department City Police The sought of his conviction. review (WPD); County of Macomb Warren and eventually re- Supreme Court Michigan capacity; its in his official Prosecutor conviction, and re- versed Moldowan’s in sued their individual and official and for a new trial. manded the matter capacities: Alan Warnick con- [forensic Michigan Supreme particular, sultant], detective], Ingles [WPD Donald expert “the two prosecutor’s found that detective], [WPD Mark Christian Mi- with to evi- respect witnesses ‘bite-mark’ charge sergeant chael Schultz [WPD testimony have either recanted dence room], and “other Pres- the evidence bite marks on the which concluded that ent and Former Members of Warren by were defendant victim made Department Police and office of Ma- has now presented opinion evidence which County yet comb Prosecutor as uniden- Moldowan, discredited.” been individually: tified,” and Maureen sued noted at 570. The court also N.W.2d The Fournier crime case [the victim]. “it prosecutor simply conceded that currently entries exceeds docket say the defendant or defen- not fair to discovery disputes ... with numerous have known about dant’s counsel should discovery appeals. Extensive has and problems the bite-mark evidence with depositions conducted—lengthy been also be prior to trial. The same can said interrogatories taken and numerous and regard with the later-discovered alibi produce exchanged. requests Without the bite-mark evi- witnesses.... dence and with the additional alibi wit- alleges complaint federal violations nesses, could the result of the trial have plaintiffs civil and constitutional at 571. been different.” Id. during prosecution, his criminal rights including as state claims inten- well retrial, February Moldowan On tional of emotional distress infliction charges and acquitted of all released. against Ms. for her conduct in Fournier told, nearly spent All twelve Moldowan prosecution. Relevant the second years prison. ex- that Dr. Hammel ever disputes Dr. claims nick also denies 2. Dr. Warnick Hammel’s pri- pressed any conclusions doubt about her ever told Dr. Hammel that and denies he Sperber. or Moldowan's 1991 trial. Dr. Dr. War- he had consulted with plaintiffs mary judgment. instant motion are claims Based on concessions City War- against of Warren and the made Moldowan his response De- Department. respect to ren Police With motions, fendants’ court district dis- defendants, plaintiff alleges con- these XXV, XXVIII, XXVII, missed Counts spiracy between Warnick and members City XXIX as to the of Warren and the (Counts VI,V, VII, of the Warren Police Department, Warren Police dismissed all VIII), conspiracy Ms. between Christian, against claims Officer dis- Fournier and members the Warren missed Count XXXII Detective In- (Counts Department XVI, XVII, Police gles. XIX). XVIII, Plaintiff also contends briefing After all receiving parties from liability part that there is on the matter, hearing and argument on the the City of Warren and Warren Police De- district court Defendants’ denied motions partment inadequate for training and/or to all remaining as claims. The district of supervising police officers regarding County’s court denied the on motion the rights the constitutional of citizens grounds that filing appropriate (Count “[t]he XXIV), for and the actions of County as a matter of law and Ingles the final policymak- defendant (Count certainly conducting many questions er in there are investigation of ma- XXV). (J.A. Additionally, plaintiff jury claims lia- terial fact for a to determine.” bility against City 3041.) of Warren and the As to the Warren Defendants’ mo- Department Warren Police for de- tion, the district court concluded that struction of evidence violation of a “[tjhere many are far questions too of fact court order. He also claims that (J.A. 3020.) here.” As to Dr. Warnick’s Department City Warren Police and the motion, the court concluded that the mo- liable, of are along Warren with Macomb “[tjhere tion “has to be denied” because County prosecutor, and its for the con- many too are facts issue even here as to prosecution plain- tinued seizure and qualified immunity grant summary probable tiff without cause in the second (J.A. 3065.) judgment.” As to Fournier’s trial in violation of his constitutional motion, “[tjhere the court concluded that rights under the Fourth Amendment here, are innumerable partic- issues fact (Count XXVII), his rights and to sub- ularly as to simply whether Fournier lied process stantive due under the Four- not. And Court will instruct ... (Count XXVIII), teenth Amendment that this was an intentional infliction or the rights procedural his process due un- jury is to decide whether there was an (Count der the Fourteenth Amendment intentional infliction emotional distress. XXIX). He also has state claim for I do find that the elements have been imprisonment false connection with (J.A. 3090-91.) met.” The court also de- (Count XXXV). prosecution the second nied Moldowan’s motion partial for sum- Warren, v. City Moldowan No. 05-CV- mary judgment. *2-3, 2006 WL The subsequently U.S. Dist. district court entered LEXIS at *7-10 (E.D.Mich. 2006) (alterations Oct.31, merely in three written orders stating original). summary Defendants’ motions for judg- ment were for “denied the reasons stated

After extensive discovery, Defendants (J.A. 328.) 323, 326, on the record.” The filed for summary motions judgment, as- serting district court’s written qualified various order as to the absolute im- munity defenses. opposed Moldowan those Warren Defendants’ motion also dismissed motions and partial cross-moved for sum- “all claims against City of Warren effectively be vindicated claim that “cannot ... for the reason Department Police Department has City Police after trial occurred.” Mitchell of Warren being sued.” legal entity capable 511, 525, Forsyth, S.Ct. 326.) (J.A. (1985). 86 L.Ed.2d fol- interlocutory appeals These three an requirements bringing lowed. doc under Cohen’s collateral order appeal whether and the issues dants’ utory appeals, 2008, prior court’s orders cember diction to consider Moldowan’s and are not ders order doctrine. Before appealable a to dismiss appeals, turning raised appealable under the collateral motions to to what extent panel do we first By order dated March each of the three interloc- under arguing that Moldowan II. of interlocutory appeal this Court referred constitute final 28 U.S.C. merits of Defen- parties. On must panel we have moved determine the for reso- § 1291 juris- trial De- or- 27, trine “have been distilled rate conditions: that be solve determine the 506 U.S. 836 238 these L.Ed.2d 605 and Sewer final effectively (2006) (quoting from the merits of the (1995), an important elements as follows: judgment.’ 304, 139, Auth. v. the (1993)). unreviewable on 115 disputed question, 144, Supreme S.Ct. ” issue Puerto Metcalf order Will In 113 2151, Johnson completely sepa ‘[1] S.Ct. Court Rico down to three action, & Hallock, 546 163 L.Ed.2d 132 L.Ed.2d appeal conclusively Eddy, Aqueduct 684, 121 v. clarified ^[2] Jones, from Inc., re ^[3] underly- the requirement that issue consideration, hereby we Upon lution. “effectively ing the order be unreview- motions. deny Moldowan’s on, example, able” later means the Jurisdiction under Collateral A. immediately may well failure to review Order Doctrine require- cause harm. The significant § Although 1291 vests 28 U.S.C. the district court’s order “con- ment that jurisdiction appeals over this Court with clusively question the means determine” of district only from “final decisions” the likely needed to appellate review is courts, mean ‘final’ within the “a decision requirement that avoid that harm. The mean necessarily does not ing of 1291 merits separate the be from the matter be in a possible last made the order review itself means that of action Gillespie v. States Steel case.” United likely appellate is force now less 148, 308, 152, 85 Corp., 379 U.S. S.Ct. approximately court consider (1964). A is decision also L.Ed.2d 199 similar) (or very matter more same a small if it falls within “that appealable once, likely to than less also seems finally determine [of orders] class which (for, if delay proceedings court trial from, separable and collat right claims of collateral, truly proceed- matter is those to, action, in the too rights eral asserted is ings appeal continue while might too review and important to be denied pending). require of the cause itself to independent (citations omit- 115 S.Ct. 2151 Id. consideration be deferred appellate ted) in original). The Court (emphasis adjudicated.” Co is until the whole case particular value also has noted “some Corp., Indus. Loan hen Beneficial in high a be “marshaled order” must L.Ed. U.S. S.Ct. avoiding trial.” of the (1949). support interest That “small class” decisions Thus, Will, a 126 S.Ct. 952. denying granting limited to orders advantage order permitted go (emphasis take of the collateral to trial.” Id. doctrine, party pursuing interlocutory original). appeal satisfy must these three ele- basic interests, In light these the Su ments, well as demonstrate preme has concluded that the denial “ challenged order ‘imperil[s] substantial qualified of a defendant’s assertion of im

public Kelly interest.’” Great Seneca munity “easily meets” require the Cohen (6th Fin. Cir. Corp., ments: 2006) Will, (quoting 546 U.S. at Such decision “conclusive” either 952). cases, respects. of two it may some

B. Jurisdiction in the Context represent the trial court’s conclusion Immunity Claims that even if facts are by as asserted defendant, we defendant’s actions jurisdiction Whether have to consid- er an on interlocutory appeal clearly issue thus violated law and established are requires us to consider the three basic scope therefore not within the elements as well as whether the denial immunity. case, qualified In such a summary judgment implicates “substantial there will nothing subsequent be public case, interests.” In this that re- course of the in the proceedings district quires impli- us to consider the interests court that alter can the court’s conclu- cated the district court’s denial of De- sion that the defendant is not immune. qualified immunity fendants’ and absolute Alternatively, may trial judge rule claims in the context in which de- those only that if the facts are by as asserted fenses been have asserted. plaintiff, the the defendant is not im- trial, plaintiff may mune. At the Qualified 1. Defendants’ in proving succeed his of version the Immunity Claims facts, may and the defendant thus es- Generally speaking, the rationale so, cape liability. Even the court’s deni- underlying qualified the immunity doctrine al of summary judgment finally and con- that, is legiti “where official’s duties clusively determines the defendant’s mately require clearly action in which es of right claim not to trial stand on the rights tablished implicated, are not the plaintiffs allegations, and because public may by interest be better served are simply steps “[there] no further that action ‘with independence taken with can be taken in the District Court to ” out fear of consequences.’ v. Harlow avoid the the maintains trial defendant 800, Fitzgerald, 819, 457 U.S. 102 S.Ct. “Cohen’s, barred,” apparent is it is 2727, (1982) 73 L.Ed.2d 396 (quoting Pier threshold requirement fully of a consum- 547, 554, son v. Ray, 386 U.S. 87 S.Ct. mated is decision satisfied” such a 1213, (1967)). 18 L.Ed.2d 288 the “Unless States, Abney case. v. United 431 U.S. plaintiffs allegations state a claim of viola 2034, 52 L.Ed.2d 651 clearly law, tion of established a defendant (1977). pleading qualified immunity is entitled to Mitchell, 527, 472 105 S.Ct. 2806. dismissal before the commencement of dis Thus, Mitchell, pursuant to appel- “federal Mitchell, covery.” 526, 472 U.S. at 105 jurisdiction late courts have to hear inter- S.Ct. 2806. Like immunity, absolute the locutory appeals qualified considering legal ‘the immunity privilege par entitles a ty i.e., “immunity question qualified to of immunity, wheth- suit rather than from liability,” given mere defense to “is er a set clearly thus of facts violates ” effectively lost if a is erroneously case established law.’ Farm Labor Org.

715 Patrol, willing fendant must nonetheless be to 308 Highway v. Ohio State Comm. Cir.2002) (6th Mat- favorable view of (quoting concede the most the F.3d Park, plaintiff to for of purposes 183 F.3d facts the City Forest tox v. of Cir.1999)); 563; (6th v. appeal.” Berryman, Dickerson McClel- F.3d Cir.1996). (6th lan, City Memphis, 493 F.3d 101 F.3d Meals of (“[A] (6th Cir.2007) 726-27 defendant of a In the denial considering argument limit required ques- her to immunity, of qualified claim defendant’s of taken in premised tions law facts re however, jurisdiction our is limited to light plaintiff.”); most favorable to the law. See Mitch solving pure questions of Mullins, (6th F.3d Sheets v. ell, (addressing 472 U.S. at 530 denial Cir.2002) (“In circuit, it this is well estab- “to immunity, only but qualified claim of jurisdiction for appellate lished to he it on an issue turns extent appeal, an interlocutory over a defendant law”). “a jurisdiction to consider We lack immunity seeking qualified willing must be order summary judgment district court’s alleged by to the facts as concede as that order determines whether insofar only plaintiff legal and discuss issues pretrial sets forth or not the record case.”). raised “Once a defendant’s Johnson, fact trial.” ‘genuine’ issue of argument purely legal drifts from the into 2151; 313, 115 Berryman begins contesting the factual realm and (6th Cir.1998) 150 F.3d Rieger, really jurisdiction what our happened, (“A im qualified defendant who denied proceed ends the case should trial.” may interlocutory appeal file an munity Berryman, (finding 150 F.3d at lack of if involves only appeal with this jurisdiction to defendants’ appeal consider -legal pure issue whether abstract “attempt[ed] to the extent defendants alleged by plaintiff constitute facts law.”). persuade us to their version believe clearly established a violation Ash, facts”); Harrison v. limitation, jurisdictional “a dis light of (6th Cir.2008) (“Thus, extent ex court’s determination there trict qualified immunity that the denial of is appeal ists a triable issue of fact cannot be basis, a dispute, based on a factual such denial interlocutory an when ed on even jurisdiction in an falls outside of the narrow of finding arises the context of Court.”). immunity.” Gregory this qualified of assertion (6th Louisville, 725, 444 742 City v. F.3d of 372, Harris, In Scott v. Cir.2006). permit appeal To an such (2007), 167 L.Ed.2d howev- interject “would appellate circumstances er, the an Supreme recognized ap- a into court’s determination review district jurisdictional parent exception to this limi- trial, sufficient is for a that the evidence rejected it a tation when considered and adjudication purposes of 28 nonfinal summary judg- district court’s of denial 1291.” Id. 743. “Under John U.S.C. though ment the district court had even son, therefore, giv a determination that genuine found existed as to issues material clearly en of violates established set facts conclusion, reaching facts. In that reviewable; determination law is while jurisdic- addressing without the issue of ‘genuine’ an issue fact is is unre of tion, found that a of the the Court video City Elyria, v. F.3d viewable.” See of plaintiffs incident version of rendered the (6th Cir.2007); by utterly the facts “so discredited jury no could have jurisdictional record that reasonable This limitation believed him.” Id. at 127 S.Ct. 1769. requires disputes if “the defendant with the story, trying the de- to reconcile Scott Su- plaintiffs version Johnson, preme edict this Court Court’s 2. Defendants’ Absolute “ Immunity has concluded that ‘where trial Claims subject is court’s determination a fact Warnick, Ingles, Dr. Detective -blatantly dispute to reasonable is and de challenge Fournier also the district court’s monstrably false, may a court of appeals denial of their of absolute testimoni- claims ”3 so, say appeal.’ even interlocutory on immunity, they al or witness which assert Heath, v. Wysong Fed.Appx. 853 in response arising those claims out of (6th Cir.2008) City (quoting Blaylock of (or on) in part testimony based their (3rd F.3d Philadelphia, 504 Cir. trial. 2007)). qualified immunity,

Unlike the de important It also is note that a nial of a defense of absolute im witness denying district court’s stated basis for an munity generally immediately not ap immunity necessarily claim “does fore pealable “lack interlocutory because the of jurisdiction par close this Court’s over [a appeal from of immunity denials witness ty’s] appeal.” City Elyria, 502 F.3d at ‘imperil does not public substantial in [a] ” 490; Christophel see also v. Kukulinsky, Kelly, terest.’ 447 F.3d at Despite (“A (6th Cir.1995) F.3d defen acknowledging immunity testimonial right dant’s appeal quali the denial “strengthens the substantial public inter immunity phras fied does not turn having est of come forward witnesses order.”). Rather, ing of the district court’s testify truthfully,” we con nevertheless “ ‘regardless the district court’s reasons Kelly cluded in the denial of such for denying qualified immunity, we may not imperil claims does that overarching jurisdiction appeal exercise over ... “private interest because ... individuals questions extent it raises law.” witnesses, most, will appear only Mehra, Williams 689-90 few times their lives.” Id. On that (6th Cir.1999) Dickerson, (quoting 101 basis, permitting we reasoned that a suit 1157) Williams). (emphasis F.3d at proceed against “private individuals” implicate does not same interests as reviewing After Defendants’ various appeal from the of public denial official qualified claims, immunity we conclude immunity, where the relevant interest that, while appeals predominantly these official, significant given more “the questions capable raise of law that are spending necessary more time than to de appellate juncture, they review at this also action, fend himself or in an herself would present some of fact issues that Johnson spend less time on the tasks which he beyond are scope juris- dictates our of or she was hired cost public addi parties diction. Where the ask us to re- money tional in defending a suit that disputes, solve factual we set those issues should have been dismissed.” Id. by aside for resolution the trial court. See (“To Gregory, F.3d at 742-43 the ex- Unlike the defendants in before us Kel- tent an appellant however, on interlocutory ap- ly, asserting the defendants testi- peal fact argues issues of and law on ap- immunity monial in a police this case are peal, only officer, consultant, this Court will pure entertain a forensic and the vic- law.”). Moreover, issues of tim of a brutal crime. each Wysong, plain- 3. In this Court found and warranted of the reversal district court’s deposition tiff's admission finding disputed in his that no factu- of material facts. 260 Fed. dispute exception Appx. al existed within fell this at 853-54. also official’s claim threatens the deci- immunity testimony on de- based asserts taking while the action criminal in action prosecu- course of a siveness in the livered factors, to trial. proceeding these we conclude light of tion. in this of interests issue balance (citation omitted). F.3d at 949 Those dramatically from the interests case differs where, interests are stake same immunity in of by the denial implicated here, court the absolute a district denies Kelly dispose does Kelly. Because a immunity claim of officer or fo- here, we must de- question presented who on investigator rensic testifies behalf of an the denial absolute termine whether part prose- state as of a criminal of the immunity asserted under claim witness Shaw, See Vakilian v. cution. circumstances imperils particular these (6th Cir.2003) (considering 515-16 We conclude public interest. substantial appeal the denial of interlocutory from it does. in- immunity by government asserted vestigator). Exposing police officers and Dr. Ingles Detective

As to investigators suit forensic based Warnick, implicated by the the interests testimony they part deliver as their of their testimonial district court’s denial and on official duties behalf state akin to sufficiently claims are immunity undoubtedly ability implicates their to ex- public the denial of implicated those in- potentially their discretion and ercise interlocutory immunity support official them performing hibits from their in Kelly: As the Court noted review. parties Unlike the before us duties.4 immunity protect seeks Official Kelly, against po- “[s]ection lawsuits ability to exercise discre of an official witnesses, lice officer like lawsuits public and to accomplishing tion in tasks prosecutors, expected be ‘could spending time prevent the official from frequency.’ with some Police officers rea defending actions that are court testify every year, in scores of cases legal. thought to be Without sonably often will transform resent- defendants from district court interlocutory appeal being allegations into ment convicted official, by immunity, denials by the official perjury State’s wit- necessary than spending more time LaHue, action, nesses.” Briscoe U.S. himself or herself defend 103 S.Ct. 75 L.Ed.2d less time on tasks for spend would (1983) Pachtman, 424 (quoting Imbler v. which he or she was hired and cost 984, 47 L.Ed.2d money defending public additional (1976)). Furthermore, De- because should have been dismissed. suit that Ingles and speedy repre- resolution of the tective Dr. Warnick lack Ingles’ immunity with re- Among things, Moldowan claims that tive assertion of other claims, jurisdiction De- Brady lacks to consider spect the dis- Moldowan’s appeal Ingles Ingles’ is now tective because Brady implicitly court trict concluded Moldowan, however, au- offers no retired. support police against a claim a officer could thority support this is a to his contention that exculpatory who fails disclose materials to to Moreover, consideration. Moldow- relevant office, prosecutor’s question as that of the Ingles against arise out an’s claims Detective lay at heart of claims. That law those Ingles testimony an active of delivered as obviously implications that conclusion has Depart- police with Warren Police officer beyond unique circumstances of reach his duties. ment in the course of official jurisdic- Accordingly, has this case. this Court Consequently, granting motion Moldowan’s Ingles’ appeal. See tion to consider Detective obviously will much further than the resound City Elyria, 502 F.3d at 489-90. of Indeed, by denying case. Detec- limits of this in Michigan against, alleged of the un- her attacker sented State would create derlying proceedings against a criminal tremendous emotional on her. hardship Moldowan, exposure their to suit also appeal ul- Declining consider Fournier’s injury cause a continuing “would a timately significant would create disin- dignitary every State’s interests addition- other of rape centive for victims and sexu- day al remain in [its officials] must al testify assault to come forward and Kelly, federal court.” 447 F.3d at 949. crimes, against their attackers. Victims of especially the of types crimes oc- Fournier, As to we also conclude here, cooper- curred must secure feel that the denial of her of assertion absolute ating with the will not them expose immunity warrants immediate it review as to lengthy proceedings. and invasive civil imperil public would substantial interests. immunity of imperils The denial inter- Although undoubtedly “pri Fournier is a subjecting est because victim witnesses to official, public vate individual” and not a the proceedings litigation attendant to civil of implicated balance interests here potentially them re-exposes significant significantly differs from those issue emotional trauma. As Fournier’s brief to Kelly against because the claims her arose this succinctly Court frames the issue: “If testimony out of she as a delivered victim sodomized, who woman has been beaten in the witness course of a criminal trial. permanently and left be disabled can sued Extending interlocutory review to the subjected and to an endless retread immunity of a denial testimonial claim in brutalization her through deposi- this context several important pub- serves tion discovery, jus- and the entire criminal lic obviously, interests. Most immunity system is put tice at risk.” Fournier Br. prevents from suit witness intimidation agree. at 22. We Declining and self-censorship. interlocu- Moreover, tory review the Supreme under these circumstances noted, expose right would victims of has it is testify privilege” crimes who “the proceedings criminal individuals “to in the suit—including aid execution of the discovery, trials, depositions, hearings, country by laws of his giving information proceedings and other to the proper that attend civil ac- authorities of violations laws,” right tions—and thus those “may properly would create a substantial be disincentive for victims to said to be come forward to secured the Constitution identify concern, their attackers. That laws Motes United States.” turn, States, implicates 458, 462-63, United effective administra- (1900). justice system, tion of the criminal which L.Ed. 1150 undoubtedly weighty public interest. reasons, For these we hereby DENY Briscoe, See 460 U.S. at 103 S.Ct. Moldowan’s motions to dismiss. The col (recognizing absolute testimonial im- lateral order doctrine satisfied here be munity officers because their qualified cause Defendants’ absolute and testimony, among things, provides other immunity only claims not be would irre significant “contribution to judicial pro- trievably proceed lost if this case were to cess”). trial, subjecting but also because these particular significant This concern is all the to civil proceedings more Defendants particular implicates public context because Fournier substantial interests. however, assault, Again, was the victim may of a brutal we Defen sexual consider being only and thus the threat dragged appeals they dants’ to the extent that through rigors Johnson, the of a pure questions civil suit based raise law. on of See of, her 313-18, 115 identification testimony 515 U.S. at S.Ct. 2151.

719 may upon its allegations also not rest mere III. party’s pleadings, or of the adverse denials the court’s denial of review district We specific but rather must set forth facts novo, judgment using the summary de a showing genuine that there is issue for 56(c) the as district Rule standard same 56(e)(2). Id.; trial. Fed.R.Civ.P. Baxter Healthcare See White v. court. (6th parties After the have their Cir.2008); presented 381, Corp., 533 F.3d 389 evidence, judge’s him- “the function is not Williams, Summary 186 at 689. F.3d weigh self to the evidence and determine proper pleadings, “if the judgment matter, the truth but to determine file, materials on discovery and disclosure genuine trial.” whether there is issue for any that there is no affidavits show Anderson, 249, at 4R1 U.S. 106 S.Ct. 2505. any issue as to material fact and genuine evidence, court evaluating must judgment that the movant is entitled as all in the light draw inferences most favor- 56(c). law.” A a matter of Fed.R.Civ.P. Matsushita, nonmoving party. able issue of fact exists when genuine material 587, 475 U.S. at 1348. “The S.Ct. “disputes might are over facts there mere existence of scintilla of evidence in the outcome of the suit under the affect support [non-moving party’s] posi- Liberty law.” v. Lob- governing Anderson tion will insufficient a motion [to be defeat Inc., 248, 242, 2505, 477 U.S. 106 S.Ct. by, summary judgment]; for there must be (1986). However, L.Ed.2d 202 “[w]here jury evidence which the on could reason- taken a whole could not lead the record ably the [non-moving party].” find for trier of to find for the non- a rational fact Anderson, 106 S.Ct. 2505. ‘genuine no issue moving party, there is ” Indus. for trial.’ Matsushita Elec. Co. Defendants’ for That motions 574, 587, Radio 475 U.S. Corp., Zenith summary judgment were on claims based (1986) (quoting 89 L.Ed.2d 538 S.Ct. qualified immunity of absolute and does Nat’l Bank Arizona v. First Cities Serv. ap not affect the standard of review Co., S.Ct. 391 U.S. plies. Gregory, 444 F.3d at 737. See (1968)). L.Ed.2d to abso Whether defendant entitled summary judgment stage, qualified immunity liability At the lute from question initial under 42 1983 is a moving party legal bears the burden of U.S.C. reviews de novo. Id. identifying parts those record 737, any genuine demonstrate absence material Corp.

issue of fact. Celotex IV. Catrett, 106 S.Ct. (1986). moving par- If the juris- 91 L.Ed.2d that we have Having determined ty summary judgment seeks an issue interlocu- diction to consider Defendants’ tory which it does not bear the burden of and settled appeals the standard trial, however, applies, we turn to the proof moving party review that now First, by showing its “that merits of Defendants’ claims. we may meet burden immu- qualified consider the and absolute support evidence to there is absence of 07-2115, 325, nity claims raised Case No. nonmoving party’s case.” Id. at Warren, City of appeal of the Detective moving party 2548. When the Ingles, and Officer Schultz. burden, opponent carried this “its has simply do more than show that there must Qualified Immunity A. metaphysical doubt as the mate- is some Matsushita, perform officials 475 U.S. at “Government rial facts.” are non-moving ing discretionary generally functions party 1348. The liability damages right consider the shielded from civil then whether was “clearly inquiry, established.” “This it is conduct violate insofar as their does not note, undertaken in light vital to must be clearly statutory or constitu- established case, specific of the not as a the context of person tional a reasonable rights of which general proposition.” Id. broad “The rele- Harlow, U.S. at would have known.” vant, dispositive determining in inquiry purpose “The 102 S.Ct. 2727. central clearly is right whether established immu- qualified of officials affording public it would to a whether be clear reasonable ‘from nity protect from them suit is officer his conduct was unlawful in the with undue interference their duties and Finally, he Id. situation confronted.” disabling of liabili- potentially from threats these only if first two elements are satis- ” 510, 514, ty.’ Holloway, Elder v. 510 U.S. fied, “occasionally” gone this Court has (1994) 1019, 127 114 S.Ct. L.Ed.2d 344 “ plaintiff to determine ‘whether the of- Harlow, 806,102 (quoting 457 U.S. at fered sufficient evidence to indicate that 2727). the official allegedly objec- what did was tively light clearly in of unreasonable the Mehra, supra, In Williams v. ” rights.’ established constitutional Dro- proce a “tripartite” Court articulated (6th gosch Metcalf, 557 F.3d evaluating im qualified dure for claims of Cir.2009) (quoting City Estate Carter v. munity: (6th Detroit, 311 n. 2 F.3d First, Cir.2005)). we determine whether a constitu- occurred; second, tional violation we de- — Callahan, In Pearson v. right termine was vio- whether -, 129 S.Ct. 172 L.Ed.2d 565 clearly right lated was a established (2009), Supreme recently recon- person which a reasonable would have mandatory sidered the nature of inqui- known; we finally, determine whether Saucier, forth in ry concluding set facts, plaintiff alleged has sufficient sequence “while the forth there set is often supported allegations suffi- it appropriate, longer regard- should no be evidence, cient mandatory.” indicate that what the ed as at 818. Id. Acknowl- allegedly objectively edging sequence official did un- several drawbacks to the Saucier, required under the Court light rea- clearly reasonable in of the estab- soned of the judges “[t]he district lished rights. constitutional appeals and the courts courts of should be Dickerson, (citing 186 F.3d at 691 permitted to exercise their sound discre- 1157-58). first step inquiry, in our deciding tion in the two prongs which of then, is to ques- consider the “threshold qualified immunity analysis should be whether, in tion” most light “[t]aken first light addressed the circum- party asserting injury, favorable to the particular in the stances ease hand.” the facts show con- alleged do the officer’s Although mandatory Id. rejecting na- right?” duct violated a constitutional Sau- framework, ture of the Saucier the Court Katz, cier recognized nevertheless that applying that (2001). L.Ed.2d no con- “If framework “is often beneficial.” Id. right stitutional would have been violated Pearson, then, light of we still re- are established, were the there allegations quired questions address same necessity inquiries no for further concern- conducting qualified immunity analy- our ing qualified immunity.” Id. If a violation sis, but now we are to consider free those could be made on a view of out favorable questions appropriate whatever order is submissions, parties’ however, we must us. light issues before

721 rights,’ not itself a qualified immunity de source substantive “Once the but ‘a for merely provides method vindicat- raised, is on plain the burden fense is ” ing rights federal elsewhere conferred.’ the officials are to demonstrate tiff Connor, 386, 393-94, 490 Graham v. U.S. immunity.” Sil qualified not entitled (1989) 1865, 109 S.Ct. 104 L.Ed.2d 443 306, 440 City Dayton, v. F.3d berstein McCollan, 137, (quoting Baker (6th Cir.2006) (citing Barrett v. Steu 311 144 n. 61 99 S.Ct. L.Ed.2d 433 Schools, City 388 F.3d 970 benville (1979)). Consequently, to determine Cir.2004)). (6th of a whether Moldowan asserts a violation clearly it is right, established constitutional Immunity B. Absolute necessary to examine the substantive but application, limited in certain- “More rights underlying each of re- Moldowan’s protection, in is absolute immu- ly broader Baker, maining requests for relief. See Court has held nity, Supreme which (“The 99 S.Ct. at first U.S. performance to the of certain func- applies § inquiry any in 1983 suit” “to isolate is integral functions are tions when those precise constitutional violation with functioning judicial adversarial of our charged.”). [the which is That defendant] at Gregory, (citing system.” claims Moldowan asserts under various 1108). Briscoe, at 103 S.Ct. U.S. provisions constitutional does not control defining the of the im- scope In absolute Rather, the inquiry. question our critical doctrine, Supreme has munity “legal underlying whether norms” a functional test: “Those func- employed implicate clearly those claims established ‘intimately more associated with the tions Mitchell, See rights. constitutional process’ phase criminal are judicial U.S. 105 S.Ct. For that 2806. likely to careful more merit consideration reason, group and Moldowan’s we address contrast, In immunity. absolute those for according claims to the at issue or conduct ‘investigative’ more nature— functions legal that underlie his various norms searching for and corroboration’— claims. ‘clues judicial pro- are more removed from IX, X, XI, 1. XII— Counts only qualified immunity.” and merit cess Brady (Ingles) Claims Fitzsimmons, (quoting Buckley

Id. Moldowan asserts number of claims 2606, 125 L.Ed.2d U.S. Fourth, Ingles Detective under the (1993)). Fifth, Sixth, and Fourteenth Amendments qualified immunity, Unlike “[t]he alleged based on to disclose Ingles’ failure seeking immunity official absolute bears exculpatory particular, evidence. Mol- showing immunity that such the burden Ingles required dowan contends justified question.” the function exculpatory statements from disclose Buckley, 509 2606. re- Burroughs, including Burroughs seeing called four African-American males Analysis C. morning around Fournier on the standing complaint, In his Moldowan that she was discovered Detroit and recovery 42 U.S.C. 1983 for seeks under Burroughs later overheard two of those his alleged constitu discussing various violations men their involvement “ 1983, however, assault.5 rights. tional ‘is Section disputes authority Although Ingles does affect our to consider Detective whether purely question Burroughs, dispute inherently prior, legal ever he interviewed gauge likely net effect of all such allegations, although Moldowan’s assert- provisions, ed evidence and make disclosure when the under various constitutional point present Brady Maryland, probability’ v. ‘reasonable claims under 1194, 1555; 83, 437, 373 10 L.Ed.2d reached.” Id. at 115 S.Ct. see U.S. 83 S.Ct. 215 (1963). Greene, In the also 527 Brady, Court held that Strickler v. U.S. 1936, (1999) suppression by prosecution “the the 119 S.Ct. 144 L.Ed.2d 286 of evi- (recognizing played by ... role special dence favorable to an accused violates “the the process prosecutor due where the evidence is material American the search for trials”). fact, guilt punishment, either to truth in criminal In irrespec- or to the Su- preme tive of the or bad faith good placed responsibility faith of the Court has the 87, prosecution.” manage 83 to Id. S.Ct. 1194. the state’s disclosure obli- question gations solely prosecutor we confront here is despite whether on the Ingles’ alleged suppression acknowledging Detective “no one that doubts that Burroughs’ police investigators statements violated the same fail in- sometimes to “legal underlying process prosecutor they norm” the due form a of all know.” recognized Brady. Kyles, 438, violation We hold 514 115 U.S. at S.Ct. 1555. that it does.6 rule, however, This well-established does Ingles argues police

Detective that Moldowan resolve whether the have a con- cannot duty demonstrate the Due or Process comitant derivative under the con- imposes police Clause the a stitution clearly potentially exculpatory on to turn obligation fact, established disclose material exculpa- prosecutor. over to the tory Superficially, information. that argu- Moldowan acknowledges duty the ment has To appeal. some the extent that “disclose” materials exculpatory to defense Brady imposes obligation an alone, on the state counsel rests on prosecutor the but to disclose exculpatory evidence the de- nevertheless that the police maintains have fense, consistently courts have an analogous, just determined but as constitutionally- duty squarely that this prose- significant, falls on the to turn obligation such materi- cutor, not police. Giglio the See v. als over to prosecutor’s United office. Under- States, 154, 150, 763, lying argument 31 Moldowan’s is the valid (“[W]hether (1972) L.Ed.2d 104 police the non- concern if the have no constitu- disclosure a of negligence obligation regard, result tional in this then the design, it is the responsibility prose- of the state could its sidestep constitutionally- cutor.”); Lindsay Bogle, v. 92 Fed.Appx. obligations by mandated disclosure main- (6th Cir.2004) 165, 170 (stating taining unstated, an “the per- but nevertheless Brady vasive, obligation applies only prosecu- separation wall of between the tors”). In Kyles Whitley, 419, prosecutor’s 514 police U.S. office and with re- 1555, (1995), 115 gard S.Ct. 131 L.Ed.2d 490 potentially for to the existence excul- instance, Supreme explained patory Court evidence. Ignoring burdens prosecutor,” “the individual that the places who Constitution police undisclosed, “alone can know what is very must this context also creates serious be assigned consequent responsibility risk that police officers who conceal or However, issue we reject here. While cannot resolve attempt we Moldowan’s dispute, pro- construe these substantive factual issue claims as due the threshold of whether claims, they properly cess more are under- may Brady-type Moldowan assert claim for procedural process stood as due violations. damages against may officer be re- 87, 1194; Brady, See 373 U.S. at S.Ct. interlocutory appeal.

solved on Graham, 490 U.S. at 109 S.Ct. 1865. case,” we Brady’s prosecution recog have that falls within evidence withhold play[ ] nized that “also active be held accountable will never ambit prosecution.” role in Hilliard any rights, “deprivation independent (6th Williams, F.2d Cir. by the or immunities secured privileges, 1975), part, vacated in Constitution,” 42 that their U.S.C. 47 L.Ed.2d on re aff'd conduct causes. (6th mand, Cir.1976); F.2d see correctly concurrence As Lockhart, also Walker v. notes, however, Supreme al (8th Cir.1985) (“Police treated are as an ready the first of these has addressed Brady pur arm of prosecution the extent, concerns, to a certain at least prosecutor’s poses.”). Because the office duty prosecutor the “a to imposing on investigative generally lacks its own ma evidence known to any learn of favorable chinery, prosecutors entirely often are de acting government’s the on the be others pendent police on the to turn the over case, including in police.” half the the investigation. fruits of As a their result of 437, at 115 S.Ct. 1555. Kyles, 514 U.S. police play this the a-dif interdependence, ferent, words, the but role in though significant other even state’s obli no less the in state’s “search for truth criminal trials.” Brady managed by is the gation under Strickler, 281, at 527 U.S. office, obligation prosecutor’s “applies in the hands of the to relevant evidence prosecutors rely so Because prosecutors the knew police, whether heavily police on the and other en law not, they it suppressed about it or whether authorities, obligations forcement the im not, and the ac intentionally or whether Brady largely would be inef posed under for it or not.” Harris v. cused asked if fective those other members of the (6th Cir.2009) 1028, Lafler, 1033 prosecution responsibility team had no to (citations Strickler, omitted); 527 inform the about evidence that prosecutor U.S. preferred theory state’s undermined the 280-81, 119 {Brady “encompass 1936 S.Ct. then, practical of the crime. As a matter only police es evidence ‘known investi ” Brady’s concern for ensuring ultimate prosecutor’ (quot the gators and not to receive that criminal defendants “funda 438, 115 1555)). Kyles, ing 514 U.S. S.Ct. trial, mentally see United States v. fair” Ingles’ sugges- Contrary to Detective 3375, 105 Bagley, 473 S.Ct. tion, however, not imply this does (1985) (explaining that the 87 L.Ed.2d 481 play ensuring in police have no role “to “purpose” Brady rule is ensure of its un- complies obligations with state justice miscarriage that a of does not oc police cannot com- Brady, der or that cur”), protections “Brady’s demands violation analogous mit constitutional actions of other law en also extend to Brady. in deprivation recognized See as investigating forcement officers such 668, 675-76, Dretke, 124 540 U.S. Banks v. officers,” McKinley, F.3d 519 White (2004) 1256, L.Ed.2d S.Ct. Cir.2008). (8th 806, Although (“When prosecutors sig- or conceal directly yet has addressed the impeaching materi- exculpatory nificant issue, a decisions support number of our it ordinarily possession, al is State’s See, e.g., Gregory, this conclusion. to set the record incumbent on the State (dismissing appeal from F.3d 743-45 added)). straight.” the con- (emphasis On immunity of context qualified denial prosecutor trary, although Brady against police is officers and of claims examiners)7; Spurlock v. in the forensic medical representative state’s ... “official Gregory we misplaced because “decided argues that is 7. The our citation concurrence (6th 236, Satterfield, California, F.3d 314 U.S. S.Ct. 1005-06 (1941) (“The Cir.1999) aim Brady to conclude 86 L.Ed. 166 of the re- (relying not to quirement process had raised claims due exclude plaintiff evidence, clearly estab- but implicated presumptively pre- officer that false Sutkiew- vent fundamental unfairness the use rights); lished constitutional cf. evidence, false.”). County Sheriff, 110 F.3d whether true or icz Monroe (6th Cir.1997) “overriding defining concern” in (finding sheriffs con- department’s patently obligations to turn ex- tours the state’s failure disclosure Clause, therefore, prosecu- Due culpatory information over to the under the Process injustice” justice finding “the tor resulted “substantial must be trial). Agurs, guilt.” which a new United States v. warranted 49 L.Ed.2d 342 practical In addition to this (1976). As far as the is con- Constitution justification, it is evident that the constitu cerned, a equally criminal defendant de- principles recognized Brady ap tional in process of prived rights his or her due ply just equally as to similar conduct on police prosecutor the when the rather than part the and our police, support thus because, suppresses exculpatory evidence police that the can- a recognizing commit case, in the on the impact either funda- deprivation analogous constitutional to mental fairness of trial the defendant’s is Brady by withholding that in recognized the same. suppressing exculpatory or material. Although prosecutor “Under the Due Process Clause of the the un Amendment, prosecu doubtedly plays Fourteenth in “special criminal a role” “the comport trials,” prevailing tions must with notions search for truth in criminal Strick ler, of fundamental fairness.” 527 U.S. at 119 S.Ct. the California Trombetta, U.S. police play unique significant S.Ct. also a and (1984); 81 L.Ed.2d 413 that process, Lisenba role in and thus also are Gregory emphatically jurisdictional qualified immunity on be to case must determine plaintiff’s implicate grounds.” the Op. Gregory, whether claims a clear- at 749. In we consid- ered, ly right. established constitutional See 186 among things, appeal from other the Consequently, Gregory the F.3d at 691. before qualified immunity district court’s denial of in jurisdiction court even considered its to ad- Brady against the brought context of claims a disputes, factual must dress those it have been police officer with the Louisville Division of Brady support plaintiff's satisfied that the could Kentucky Police and an examiner with the undoubtedly jurisdic- claims. The court had Laboratory. State Police Crime The defendant tion to consider "threshold” whether this re- argued plaintiff officer that the had es- failed to Saucier, quirement had been See satisfied. tablished that the officer of the "was aware Gregory If U.S. at 121 S.Ct. 2151. the was, fact, the in [evidence] [evidence] or that Brady support not court believed that could the Likewise, exculpatory.” F.3d at 743. the plaintiff's claims and exam- officer argued defendant examiner that "her 'failure to iner, certainly it would not have sent the case disclose,' any, only negligence.” if amounts proceed- back to district court for further Id. at 744. We dismissed both on the claims However, ings those claims. because our grounds jurisdiction that lacked we to consider issue, Gregory in decision did not address the disputed interlocutory those issues of fact on waived, perhaps been because the issue had Johnson, appeal. (citing Id. at 743-44 acknowledge Gregory we offers limited 2151). U.S. at In limited criticisms, however, support. For all of these sense, right holding is concurrence that our point the concurrence can no case in this Gregory precedential is of limited value. rejecting circuit the notion that the Constitu- entirely But it is police duty analogous not irrelevant. Under imposes tion on the Mehra, inquiry any recognized Brady. Williams v. our initial different, dy reflecting their different government’s constitutional bound miscarriage system. to “ensure that in the criminal obligation justice functions occur,” Bagley, justice does Police do not disclose evidence officers 675,105 Fourth 3375. As the Circuit criminal directly. defendants In- in Barbee v. persuasively War- explained stead, police accumulate evidence den, Penitentiary, 331 Maryland F.2d ministerially and it to the then deliver Cir.1964): (4th prosecutor. prosecutor The then makes prosecu- part are police

The also discretionary legal judgment about tion, trial is less and taint on the no whether the evidence is material they, Attorney, rather the State’s if than its exculpatory, Brady compels such guilty of the nondisclosure ... were disclosure to the defendant. state, duty to disclose Although police prose- Id. ordinarily through prose- which acts process, roles in play cutor different attorney; if too cuting he is the but ... functional differentiation should “[t]his police of the mate- suppression victim that Brady not obscure the fact creates a information, the state’s failure is not rial singular constitutional duty, prose- which account on that excused. cutors officers capable are words, In because the at 846. other Id. breaching factually ways.” different Id. just as much an arm of the state are practical justifica- to these addition police inflict the prosecutor, considerations, tions and constitutional the hide, when injury they constitutional same police’s to turn obligation over material withhold, conceal, destroy, or even fail to and exculpatory evidence also follows inex- exculpatory material information.8 disclose orably Supreme recogni- the from Court’s While concurrence is cor the police tion have that the a constitutional Supreme that the has held rect Court duty to such In Trom- preserve evidence. technically speaking, government’s the betta, that Supreme the Court observed fall to and must obligations “disclosure” “[wjhatever duty imposes the Constitution by Kyles, managed prosecutor, 514 be the evidence, the to that preserve on States 437, (emphasis at S.Ct. 1555 add U.S. duty limited to that must be evidence ed), argument that overlooks that the might play be to expected significant a role decisions also make clear that the Court’s 488, suspect’s in the defense.” U.S. at underlying Brady constitutional concerns recognized 104 S.Ct. The Court that 2528. more other broadly preclude gov reach to duty Youngblood, same in Arizona from a making ernmental “authorities” U.S. 109 S.Ct. 102 L.Ed.2d 281 the “calculated effort circumvent disclo to (1988), that confirming the Constitution requirements Brady established [ ] sure imposes a limited Trombetta, “obligation” at least progeny,” and its U.S. at preserve the “to ... Judge police [that] evidence Murnaghan 104 S.Ct. 2528. As the succinctly explained exonerating in his dissent in could form the basis Jean (en Collins, (4th Cir.2000) at If F.3d 656 defendant.” Id. 109 S.Ct. 333. banc): imposes “duty” the and “ob- Constitution course, ligation” police preserve on the to such prosecu- the manner in which

Of limited, evidence, police comply duty, tors and with Bra- that no matter how officers police jeopardize Although acknowledges the that of the can 8. concurrence the conduct that the fundamental concern Due Pro- just the a criminal as much as fairness of trial Clause is to cess ensure "the fairness of crimi- prosecutor. that of the trials,” Op. sight nal it loses the fact defendant; police the certainly preclude imply, must from closed to it does not the concealing that exact information colleague suggests, police same as our that the defense, prosecutor, and the expected from the the recognize cannot to and deter- be n Why police else would the be re- courts. preserved mine what evidence should be preserve they if quired to such evidence prosecutor. over to the On the turned obligation no attendant to reveal its had contrary, Supreme already has Brady and Trombetta would existence? as much in that concluding assumed if impose obligations hollow indeed police constitutionally-significant have police did not preclude Constitution also ... “duty” “preserve that to evidence concealing from evidence officers the same might expected play significant be they destroy are not permitted that Trombetta, suspect’s role defense.” prosecutor to disclose. required 488-89, (holding U.S. S.Ct. 2528 police pre- argues obliged concurrence that the were not obligations “exculpatory share in the un- cannot state’s serve evidence because the Brady Brady duty der because “the “appar- value” the evidence was not uniquely prosecutors” ent”). tailored to that it the police If can be expected exculpatory evi- requires disclosure of recognize pre- what be evidence must “material,” is constitutionally dence served, certainly it is not too burdensome “a requires judg- and thus exercise they simply demand turn that same officers, prosecutors, ment that not police over prosecutor’s information to the office. are trained to make.”9 Op. at This For most of the same reasons we argument point. agree misses the We here, virtually every have out other laid determining particular whether a circuit has concluded either that the “material,”

piece of evidence is as defined share in state’s obligations under Bra Bagley, dy, or that Constitution on the imposes generally requires legal exercise obligations police analogous recog to those judgment attorney that the prosecuting is See, Dill, Brady.10 trained, e.g., Brady nized in v. posi- better not to better mention (1st Cir.1999) (“One 104, 114 tioned, 187 F.3d to make. 514 Kyles, See U.S. at 437, However, function police provide 115 S.Ct. 1555. that im- standard is to infor only plies prosecutor prosecutor should mation be to and the courts. Thus, assigned responsibility determining may police of a officer be sometimes ultimately what evidence should be dis- if he fails to apprise prosecutor liable ministerial, making argument, police 9. In discretionary. the concurrence not heavily Judge duty relies Wilkinson's concur- officer’s is not to whether determine Collins, opinion ring in Jean v. but does not exculpatory. is evidence material and attempt Judge even to wrestle Murna- duty with simply is evidence His to collect the persuasive ghan’s response argument: to that disclose all prosecutor, and to of it to the discretionary legal This observation is a who then makes the strawman confus- material, presupposes judgment exculpatory es the crucial issue. It about its at- police a when officer evidence to discloses tributes. functionally J., prosecutor, the act (Murnaghan, dissenting). is identi- 221 F.3d judgment to the discretionary legal cal prosecutors disclosing analogous make when decisions our sis “[WJhile evidence from 10. directly repeated reality, binding, to are criminal In ter circuits we have defendants. ly recognized persuasive authority.” the two acts are incommensurable. Re- their See police quiring City Fighters officers Cleveland to disclose evidence Ass’n Fire v. of of Cleveland, 545, (6th prosecutors require does not technical 502 F.3d Cir. 553 n. 6 expertise 2007). legal essentially because the act Having determined that exculpatory of known judicial officer or a O’Brien, information.”); 127 F.3d process guarantees recognized Hart v. due Bra Cir.1997) (“[A] (5th plaintiff analogous 446-47 or dy impose also derivative against police claim a section 1983 states next obligation police, on the we must de who, learning ‘patently of ex after officer obligation termine whether evidence,’ deliberately fails to culpatory “clearly established” as of the date of De (citation prosecutor.” it to the disclose Ingles’ alleged violation of that tective Johnson, omitted)); F.3d v. McMillian right In duty. determining whether (11th Cir.1996) (“Our case law established, “may rely on clearly we deci that an accused’s due clearly established Court, Supreme decisions of sions police rights are violated when the process circuit, within this this court and courts impeachment evi exculpatory conceal instances, on and in limited decisions dence.”) cases); City (collecting v. Walker Spurlock, circuits.” 167 F.3d at other (2d York, 974 F.2d Cir. New 1006; Employees Ohio Civil Serv. Assoc. 1992) (“The satisfy obligations their police (6th Seiter, 1171, 1177 v. Cir. Brady they exculpa when turn over under 1988). law, evaluating In relevant case prosecutors.”); Geter tory evidence to the right we must determine whether has (5th F.2d Cir. Fortenberry, 882 v. “in a more recognized particularized, been 1989) qualified immuni (affirming denial of relevant, sense: The con and hence more respect officer defendant with ty police right sufficiently must be clear tours of the that the officer failed plaintiffs claim a reasonable officialwould understand evidence); Jones v. exculpatory disclose doing right.” that what he is violates that (7th F.2d City Chicago, 856 Creighton, Anderson Cir.1988) (“Brady Maryland does not (1987). In 97 L.Ed.2d 523 keep written records require words, “the must be other unlawfulness activities; investigatory but of all their apparent.” Id. circumvent the rule of that attempts to by retaining records clandestine case recognizing from other circuits Decisions prosecu from deliberately files concealed claims that type “Brady-derived” cannot tolerat tors and defense counsel be asserts here date back as far as Moldowan ed.”). indicates, litany cases As this Barbee, F.2d at 1964. See consistently rejected have the no courts fact, recognized prior circuits at least three play have no role to tion that the date August possible the earliest constitutionally- carrying out the state’s in the Ingles’ involvement for Detective in Al obligations mandated this area. ease, right clearly estab- that this was pri though prosecutor’s office bears Geter, See, id.; F.2d at e.g., lished. 882 carrying out the mary responsibility for Jones, 171; Although 856 F.2d at 995. our obligations un actual “disclosure” state’s a claim is more recognition type of this bear, Eighth police as the Brady, der overwhelming specific, recent and less it, important put equally has an Circuit of decisions from other circuits number turn “Brndy-derived” responsibility to us recognizing type of claim satisfies exculpatory evidence to potentially over officer would any police that reasonable White, F.3d at prosecutor’s office. 519 suppressing exculpatory evi- know that aside, quibbles there is no 814. Semantic con- was a violation of the accused’s dence just capable as police doubt that the are rights. stitutional criminal defendants of a funda depriving Moldowan’s Having determined that exculpa mentally by suppressing fair trial Ingles implicate a against claims Detective tory evidence. 728 right, particular, we in “bad faith.” Defendants

clearly established constitutional whether, that, Cannon, in Davidson v. 474 taking argue next must determine true, 344, 668, 106 by Moldowan as Mol- U.S. S.Ct. 88 L.Ed.2d 677 alleged facts (1986), Williams, out a violation of this and Daniels v. dowan can make retrial, (1986), Jerry Bur- right. At Moldowan’s 88 L.Ed.2d 662 he four Af- roughs Supreme testified that witnessed Court held that the Due Pro- standing in the “triggered by rican-American males not lack cess Clause is body Daniels, in early officials, Fournier’s by government street around care” due 9, 1990. Bur- morning August hours of 106 U.S. and thus that he witnessed one roughs also testified government merely a official “where is her, shortly that of the men kick negligent causing injury, proce- no away thereafter he saw the men drive compensation constitutionally dure for van. light-colored from the scene a Davidson, required,” Burroughs also testified that he later over- S.Ct. 668. standing heard two of the men he saw Although this Court has not addressed body talking around Fournier’s about the directly, Gregory, the issue see F.3d claiming incident and involvement in the 743-44, at least two of our sister circuits Burroughs assault. that he re- testified suggested have order assert officer, ported police this information to a against police, such a claim at least “just say- but the officer acted like I[was] § defendant-turned-plaintiff under (J.A. 2157.) ing nothing.” Although Bur- must demonstrate that the acted in roughs could not remember the name of See, White, e.g., “bad faith.” Porter v. the officer with he spoke, whom Moldowan (11th Cir.2007) F.3d 1294 (“hold[ing] claims that it must have been Detective the no-fault Brady impos- standard care Ingles. It is without question Detec- prosecutors ones in the criminal or habeas Ingles report any tive did such infor- § context has no place damages Prosecutor, mation County to the Macomb action law enforcement official in or to defense counsel for that matter. plaintiff alleges which the a violation of Construing these facts in the light most Wilhoit, process”); due Villasana v. Moldowan,

favorable to it is evident that (8th Cir.2004) (“[T]he F.3d recov- Burroughs’ statements cast serious doubt ery damages requires proof on, discredit, entirely if not Fournier’s a law enforcement officer other than the identification of Moldowan as one of her prosecutor deprive intended to the defen- attackers, undoubtedly issue trial.”). dant of a fair At least one other important one of the most elements of the circuit, however, previously held no Burroughs’ state’s case. statements thus showing required: such of bad faith is should have been disclosed to the defense Failure of the such ma- reveal they undoubtedly “would tend to excul- terial evidence in possession their pate” Brady, Moldowan. See 373 U.S. at equally harmful to a defendant whether 88, 83 1194. S.Ct. the information is purposely, negli- or

Defendants contend even if it gently, we withheld. And makes no dif- were to legal withholding by conclude that the norms un- ference if the is officials derlying Brady support analogous prosecutor. can other than the The police officer, or derivative claim police part prosecution, are also of the and the prevail pre- they, Moldowan cannot on the taint trial if facts on the is no less rather Attorney, sented here because he cannot show that than guilty the State’s were Ingles Detective If police withheld these statements the nondisclosure. the allow police, exculpa- evidence the but rather whether the Attorney produce the State’s tory “apparent” him value of the evidence is or guilt informing without pointing not. possession in their of other evidence inference, this state contradicts

which instance, the Agurs, Court held only deception not practicing officers are required to turn prosecutors that are over Attorney but on the court the State’s to the defense evidence was “so clear- cruelest lies defendant. ‘The and the ly supportive of a claim of innocence that it police in silence.’ If the are often told gives prosecution duty the notice of a reports to the existence of the silence as request. a defense produce” even without rather than negligence from resulted 2392. The Court S.Ct. damaging. deception the is no less guile, that the constitutional explained violation Barbee, gov- 331 F.2d 846.11 title of the arose not because the official that withheld the evi- ernment question we have before dence, rather the failure to but because one, with, the concur a difficult us is “deprived turn over such evidence the de- out, poli rightfully significant points rence fendant of a fair trial.” Id. at 96 S.Ct. job sides. But our cy implications on both explained: the 2392. As “Nor do policy craft the law to fit our is not to obligation we believe the constitutional views, what the law it is to determine by culpability, measured the moral or the Notwithstanding the concur requires. willfulness, If prosecutor. sup- of the the contrary, to the the argument rence’s pression of evidence results in constitution- clearly area establish that cases error, al it is because of the character of taken in faith are not actions bad police evidence, not the character of pros- the the that can only species police conduct ecutor.” Id. at 96 S.Ct. 2392. criminal defendants of the due deprive by the process guaranteed Constitution. words, In other the critical is courts, acknowledge that a number of We determining government sue in whether Court, have held including Supreme criminal deprived conduct defendant of a showing required of bad faith is fair trial is the nature of the evidence that police deprived claim that the prevail withheld; on a it is not emphatically process by concealing a defendant of due government mental state of the official only “po withholding evidence that is suppressed who the evidence. That the But, tentially police useful.” where the process inquiry is concerned with the due pos are that the evidence in their aware nature of the evidence rather than the exculpatory, Supreme faith of the state actor re good session or bad flects, in this area emphasized, Court’s decisions indicate as the Court the Due duty “overriding concern with pre have an absolute Process Clause’s justice finding guilt.” that information. The Id. at serve and disclose 2392; determining Napue accord v. Illi critical issue whether bad nois, required faith is thus is not whether (1959) (holding prosecutor or L.Ed.2d 1217

evidence is withheld required unclear whether the rule announced and asserts that bad faith is in this It is context, good ("[I]t imper- in Barbee remains law after Jean v. Col- would be see id. lins. Because the en banc Fourth Circuit was pro- to hold the liable for due missible Jean, per "equally it issued a divided” they where have cess violations under judgment affirming the curiam order faith.”), position good did not acted in opinion. district court without See gamer support majority of a of the en Although Judge at 658. Wilkinson’s concur- banc Fourth Circuit. holding ring opinion ignores the of Barbee testimony against police contrary, officers. On the knowing perjured use of violates just Brady Agurs, like and the Court’s “the Due Process Clause even when the Youngblood decision confirms not the re- attorney’s district silence was exculpable where “material evidence” is ... guile prejudice sult of or a desire to concerned, govern- the mental state of the same, preventing, the as impact its was withholding ment official that evidence is did, any that could in real sense it a trial determining not relevant to whether (citation omitted) (empha- fair” be termed process due violation has occurred. 488 added)). reasoning re- That same sis 57-58, at 109 S.Ct. 333. In discuss- U.S. Brady’s holding sup- “the flected ing scope police’s duty pre- the of the to prosecution the of evidence by pression evidence, serve the Court contrasted the accused ... violates due to an favorable “ma- obligation state’s absolute to disclose material ei- the evidence is process where much exculpable terial evidence” with its irrespective of guilt punishment, ther to obligation preserve “po- more limited faith good prosecu- the faith or bad of the evidence,” tentially holding useful that a (em- tion.” 373 U.S. 83 S.Ct. 1194 showing of faith required bad show added). phasis Although Agurs both only violation in the constitutional latter by Brady process involved due violations 57-58, context. Id. at Al- S.Ct. 333. than prosecutor police, rather though, correctly as concurrence critical lesson of those decisions is out, points rejected the Court the bad- constitutional violation arose because of requirement faith in the context of due evidence, the nature of the not the state of process guarantees interpreted “as Strickler, mind of the state actor. See 527 Brady,” phrase that turn of does bear (“[Ujnder 119 S.Ct. 1936 Bra- weight colleague places that our on it. has dy an inadvertent nondisclosure the Far from suggesting that the difference in pro- impact same on fairness of applicable job standards turns on the concealment.”). ceedings as deliberate of the government title official who de- stroyed or in ques- concealed the evidence Notwithstanding underly- the reasoning tion, the Court’s decision in Youngblood ing Agurs Brady, the concurrence actually explained: process contends that Moldowan’s due Part of the reason for the difference in claim should be evaluated under the “bad- treatment is found in the observation faith standard” set forth in Arizona v. Trombetta, made the Court in Youngblood, which the concurrence insists “[wjhenever potentially exculpatory evi- “requires proof engaged that the officer lost, permanently dence is courts face ‘a suppress exculpatory conscious effort to ” task of im- divining treacherous Trombetta, Op. (quoting evidence.’ at 750 port of materials whose contents are 2528). This and, often, unknown very disputed.” heightened justified, standard is the con- Part of it unwillingness stems from our argues, extending currence because Bra- to read the “fundamental fairness” re- dy’s duty” “absolute to law enforcement Clause, quirement of the Due Process enjoy officers who do not immuni- absolute imposing on the an undifferentiat- ty will “unleash” a “that flood lawsuits duty ed and absolute retain very stop will be difficult to short of trial.” preserve might all material that be of Op. at 748. respectfully disagree. We evidentiary significance conceivable in a However, Youngblood does not particular prosecution. think that We impose a faith requirement any bad faith requiring defendant show bad process brought and all due claims part on the both limits the

731 cases,” In “that of police’s obligation pre- Young- of the Clause. class extent says, justice” and “the simply evidence to reasonable bounds blood interests serve impose higher actors, a burden on it to that class of cases where state confínes justice clearly including police. re- at the interests of most 109 it, ie., in which the S.Ct. 333. That is true quire regardless those cases indi- whether the defendant is police by asserting themselves their conduct a fail- ure-to-preserve or a cate that the evidence could form a basis failure-to-disclose claim, regardless exonerating for the defendant. of whether the claim being against asserted prosecutor is or (citations 57-58, omit- Id. Branch, police. See v. United States ted). words, Youngblood In other con- (6th Cir.2008) 537 F.3d in (stating, that the “reason for the difference” firms police the context of a claim a the nature of applicable in the standards is officer, that preserve failure to ma- “[t]he issue, not the title of the the evidence exculpatory terial evidence violates the de- chal- government official or whether the right process regardless fendant’s to due state’s failure lenged conduct relates to the government of whether the acted in bad rather that its failure to disclose evidence faith”); Wright, 260 F.3d at 570 (stating, Fisher, it. See Illinois v. preserve the context a claim against a fire investi- 157 L.Ed.2d gator, destruction of “[t]he material (2004) (explaining applica- that “the exculpatory process evidence violates due bility requirement of the bad-faith regardless of government whether the act- ... Youngblood depended on the distinc- faith”). ed in bad ‘materially exculpatory’ tion between evi- evidence”); ‘potentially useful’ dence Indeed, only way to make Wright, 260 F.3d United States passage Young- sense this critical from (6th Cir.2001) (“Separate applied tests are phrase blood is to read the police’s “the government’s to determine whether obligation” in the last sentence as refer preserve failure to evidence rises to the ring previous to the statement from the process level of a due violation cases regarding police’s sentence “undiffer exculpatory where material evidence is not duty.” entiated and given absolute When ‘potentially where accessible versus cases proper reading, Youngblood thus confirms accessible.”). useful’ evidence is not have “an undifferentiated duty preserve” Unlike the destruction or conceal and absolute to retain and evidence, merely “potentially ment of useful” evi certain but that obli “[absolute] dence, “materially exculpatory” gation” the loss of is limited to “those cases which their in directly evidence threatens the fundamen themselves conduct trial, tal of a criminal and thus dicate that the evidence could form a fairness basis undoubtedly exonerating for implicates the Due Process defendant.” useful,’ reading Youngblood sup showing required.” 12. Our also finds a bad-faith Id. Moore, port (citing in the case law of our sister circuits. United States v. 452 F.3d (1st (5th Cir.2006)) Spencer, ("impermissibly 466 F.3d 47 Cir. Olszewski instance, 2006), (1) withheld evidence the First Circuit declined must be either material issue, (2) useful, exculpatory only potentially to resolve this but observed that "[a] variety showing of other circuits have considered the in combination with a of bad faith on relationship Young- part government”); between Trombetta and United States v. Estrada, (1) (9th and have concluded that de 1212-13 Cir. blood 2006) 'apparently exculpatory' (only requiring showing struction of evidence of bad faith require showing “potentially éxculpatory, does not of bad faith but when the evidence is (2) only ‘potentially opposed apparently exculpatory”); if the Bull- evidence 732 respondents towards or of a conscious ef- put, where the evidence

Simply by police suppress exculpatory falls fort evidence.” destroyed or withheld category, Emphasizing the defen Id. these scattered state- that more serious into ments, argues that a any make further the concurrence required is not dant asserting any process due plaintiff the mental state of the 1983 showing regarding (Gil police claim to dem- required F.3d at 573 Wright, See police. (“Thus, J., onstrate faith. If the concurrence man, concurring) part the first bad faith” than by anything faith— means “bad more test—good of the Jobson bad exculpa- were of the police once the last two that the aware should be irrelevant issue, shown, tory test are be value of the evidence at howev- parts of the Jobson er, Supreme expressly respectfully disagree. has then we cause the Court good or bad held that the determination the concurrence overlooks is that What materially exculpato faith irrelevant for only Trombetta involved evidence that was evidence.”). in ry explained As the Court defense, potentially useful to the not evi- Youngblood, presence or absence of “[t]he demonstrably exculpato- dence that was police purposes bad faith of the 489,104 ry.13 (concluding Id. at S.Ct. 2528 necessarily Due Process Clause must turn in question that the evidence did not satis- police’s knowledge exculpato on the fy “materiality” requirement because ry value of the evidence at the time it was its “exculpatory “apparent value” was *, destroyed.” lost or Id. at 56 n. destroyed”); evidence before the was see S.Ct. 333. Youngblood, also 488 U.S. at 109 S.Ct. distinction, J., (“In (Stevens, By overlooking concurring) this critical Trombet- ta, misinterprets process the concurrence the nature this Court found no due viola- process inquiry required extremely of the due under tion because ‘the [were] chances Trombetta, In that preserved samples these circumstances. low would [breath] ” Supreme suggested, explained exculpatory.’ (quoting have been Trom- above, betta, 2528) government run “authorities” 467 U.S. at 104 S.Ct. (alterations they fact, afoul in original)). Constitution when make “a calculated effort to circumvent the dis- Court’s decision Trombetta even makes requirements by Brady materiality” closure established clear that the “constitutional Maryland progeny.” and its simply 467 U.S. the withheld evidence is “more at important police S.Ct. 2528. Court also than whether the acted ]” good observed that case that record or bad faith. 467 “[t]he 2528; allegation contains no of official animus Youngblood, see also Carver, (10th Eighth ock v. 297 F.3d Cir. Even the decisions from the Circuit 2002) ("A defendant can obtain relief under on which the concurrence relies involved evi- the Due Process Clause when he can show only potentially dence that was useful. See destroyed department that a evidence White, ("Brady's protections 519 F.3d at 814 exculpatory apparent with 'an value that was also extend to actions of other law enforce- Where, destroyed.’ before ... [it] how investigating ment officers such as officers. ever, police only preserve 'poten failed to However, investigating officer’s failure to tially might useful’ evidence that have been preserve potentially evidence useful to the ac- exculpatory, prove a defendant must that the cused or their failure to disclose [sic] such by destroying acted in bad faith evidence does not constitute a denial of due (internal omitted)). evidence.” citations Al faith.”); process in the absence of bad Villa- Fifth, Ninth, though the decisions of the sana, (observing that the binding, they Tenth Circuits are not lend exculpatory documents at issue “had neither strong support interpretation to our of this value”). impeachment nor passage Youngblood. from (Blackmun, J., obligation dissent- whether the state’s is “absolute” (“The turns on the nature of the evidence at Trombetta ing) determination issue, destroyed suppressed not who or the good faith and prosecution acted the justification The for imposing evidence. merely pref- according practice to normal duty an absolute where material and excul- inquiry, which centers primary aced the is at patory enough: evidence issue is clear materiality’ of the evi- the ‘constitutional or preserve the failure to disclose such itself.”). dence directly evidence threatens the “fundamen- imagined by risks the policy The tal fairness” of a defendant’s criminal trial. from this fundamen concurrence also stem 58, Youngblood, See 488 U.S. at 109 S.Ct. the na misunderstanding tal “absolute” 333; Trombetta, 485, 467 U.S. at 104 S.Ct. In Brady obligation.14 Bagley, ture of the 2528; Lisenba, 236, 314 U.S. at 62 S.Ct. explained prosecutor the that “the is 280. Because that concern for fundamen- file to required not to deliver his entire just tal strong fairness is where a de- counsel, only but to disclose evi defense police destroyed fendant that the claims or that, if to the accused dence favorable evidence, Branch, suppressed material see deprive the suppressed, would defendant 589, 537 F.3d at there is no constitutional- a fair trial.” 473 U.S. at 105 S.Ct. ly-supportable basis for a applying differ- 3375; at Agurs, see also ent standard in- requiring courts to (“But to reiterate a critical S.Ct. into mental quire police. the state of the the will not violated point, prosecutor have only req difference duty of his constitutional disclosure unless uisite inquiry police is where the are significance his omission is of sufficient concerned, “exculpatory value” of the right in the denial of the result defendant’s “apparent.” evidence must be Trombet trial.”). words, In Due to a fair other ta, 467 U.S. at 104 S.Ct. 2528. This imposes duty” Process Clause an “absolute burden, however, merely additional re prosecutor only regard on the with to cer materiality question flects that a legal is evidence, exculpatory “material tain ie. ev make, police that are not trained to Youngblood, idence.” See 488 U.S. thereby accounts for practical con 109 S.Ct. 333. police cern that cannot be held ac The central of all of lesson these cases is failing countable for to divine the material in determining ity every possible scrap the critical factor of evidence.16 highly colleague’s skeptical 14. We also are of the concur- 16. To extent our whatever limited policy justified, concerns are we think that the warnings rejecting rence’s dire the bad- police ultimate result is not that the will be faith standard in this context will increase often, § held liable under 1983 more but rath- significantly against the number of lawsuits police simply opt er that the will to turn over police given already that this circuit has prosecutor’s information to the office in more rejected required the notion that bad faith is attempt potential expo- an their minimize process to assert other due claims Agurs, sure to such suits. See 427 U.S. at police, including alleging po- claims that the ("Because dealing 96 S.Ct. 2392 we are preserve exculpatory lice failed to material standard, inevitably imprecise with an Branch, 589; evidence. See 537 F.3d at significance because the of an item of evi- Wright, 570. predicted accurately dence can seldom be un- complete, prudent til the entire record Youngblood, suggested 15. the Court prosecutor questions will resolve doubtful this additional burden was where satisfied disclosure.”). Although policy favor of con- "the themselves their conduct indi- decision, our we siderations do not factor into cate that the evidence could a form basis an note that this is outcome should be exonerating encouraged given prosecutors, the defendant.” 488 U.S. at police, making 109 S.Ct. 333. should be the decision about good can never be done “in faith and dence Youngblood, 488 U.S. See however, practice,” their normal Kil- that the in accord with imply, It does not States, liability lian United entirely shielded from police are (1961). 302, 7 L.Ed.2d 256 Conse- faith.” shows “bad unless defendant quently, requiring a criminal defendant or piece exculpatory value of Where the plaintiff to show “conscious” “apparent,” have evidence suppress such evi- “calculated” effort duty pre- unwavering constitutional superfluous.18 dence would be ultimately disclose that evi- serve and that The failure to fulfill obli- dence.17 event, any even if we were inclined to violation, process a due gation constitutes required, that bad faith was we still believe regardless of the whether a criminal defen- Ingles conclude that is would not Detective plaintiff § or can show that the dant summary judgment. entitled to Because destroyed or concealed in evidence was light we must read the record most show- “bad faith.” The reason no Moldowan, that favorable to we conclude further required faith is ing of animus or bad is whole, Burroughs’ testimony, taken as a posses- in their police where the have for Moldow- provides sufficient evidence they know or should sion evidence summary judgment an’s to survive claims a “might expected play signifi- know be to jury reasonably a could conclude because defense,” suspect’s cant in the Trom- Ingles role faith. that Detective acted bad betta, 488, 2528, Although 467 U.S. at 104 S.Ct. there is no direct evidence Ingles intentionally destruction or concealment of that evi- Detective acted play significant suspect's de- a de- what evidence must be disclosed to the role in Leon, Trombetta, 488, fense. See United States v. 468 U.S. fense.” 467 U.S. at 104 S.Ct. 897, 900-901, 3405, Asking police simply 82 L.Ed.2d 677 104 S.Ct. 2528. disclose (1984) (recognizing overarching "goal” prosecutor of es- that same evidence to the is no tablishing great "procedures under which criminal burden. 'acquitted defendants are or convicted on the exposes basis of all the evidence which any justification imposing 18. Nor is there for States, ”) (quoting truth’ Alderman v. United higher burden because Moldowan asserts 165, 175, 394 U.S. S.Ct. 22 L.Ed.2d § process due claim in the his 1983 context. (1969)). considering perspec- After both Taylor, See Parratt v. 451 U.S. tives, policy (1981) we conclude that the consider- ("Nothing 68 L.Ed.2d 420 approach providing ations favor our because language § in the of 1983 ... limits the stat- prosecutors picture a fuller of the evidence in solely deprivations ute to intentional of consti- any given case will allow them to make more rights.”); tutional see also id. at ("[Section] informed decisions about whether to disclose S.Ct. 1908 1983 affords a civil evidence, particular piece or withhold a remedy deprivations federally protected undoubtedly goal which is a that should be rights any express requirement ... without encouraged. Kyles, mind.”). See particular Although state of ("This means, naturally, S.Ct. 1555 that a Court's in Daniels decision overruled other Parratt, prosecutor tacking anxious about too close to aspects expressly it left undisturbed piece Daniels, the wind will disclose a favorable holding § as to See Parratt's 1983. (citation 329-30, ("In evidence. This is as it should be.” 474 U.S. at 106 S.Ct. 662 Parratt omitted)). Taylor, granted ... we certiorari to decide negligence support mere will a claim whether Contrary predic- § to the concurrence's dire for relief under 1983.... We concluded tions, § imposing obligation counterpart, unlike its criminal significant, does not create a or even addition- 18 U.S.C. contains no state-of-mind al, necessary contrary, requirement independent burden. al- of that On the the Court ready underlying has concluded that it is reasonable to state a violation of the constitu- expect recognize pre- right. that the tional We adhere to that conclusion.” can (internal omitted)). "might expected quotations and serve evidence that be citations statements, Although government officials withholding exculpatory these testimony, least when Burroughs’ immunity enjoy only qualified as to their to Mol- light in the most favorable viewed conduct, “all pretrial witnesses—police of dowan, evidence for sufficient provides lay ficers as well as witness—are absolute summary claim to survive Moldowan’s from ly liability immune civil based on Despite Ingles’ Detective insis- judgment. testimony judicial proceed their trial jurisdic- contrary, we lack the tence to the Briscoe, ings.” 460 U.S. at Burroughs his claim that tion to consider A 1108. witness entitled testimonial any to the never made such statements immunity “no matter egregious how at 744-45 Gregory, See F.3d police. perjurious testimony alleged (“By arguing the evidence establishes at 1001. Spurlock, have been.” F.3d of her negligent performance at most a Moreover, plaintiffs “the mere fact that duties, arguing disputed is- [defendant] may allege conspiracy to render false of fact to this Court. We cannot sues testimony, opposed to simply alleging arguments going to [defendant’s] entertain trial, falsely person one testified issues of material fact on this disputed absolute does not waive testimonial immu interlocutory appeal.”). nity.” Accordingly, Ingles Id. Detective that Mol Ingles suggests Detective also immunity entitled to absolute for the testi Brady prevail cannot on his claims dowan mony protection, he offered at trial. That prejudice. he cannot demonstrate because however, Ingles’ does not extend to non- Strickler, 263, 281, 527 119 S.Ct. See U.S. conduct, “despite any testimonial connec (1999) 1936, (“[S]trictly 144 L.Ed.2d 286 might tion these acts have to later ‘Brady there is never a real testimo speaking, the nondisclosure was so ny.” violation’ unless 444 Gregory, F.3d 739. probabil there a reasonable

serious that evidence would ity suppressed In complaint, his as well before verdict.”). a different That produced have Court, this Moldowan asserts that Detec issue, however, disputed also involves is Ingles tive cannot assert absolute testimo reach at beyond sues of fact which are our immunity nial he is “complain because Johnson, juncture. 515 at 313— U.S. ing Although witness.” there is a well- 18, 2151; Gregory, 444 F.3d at 115 S.Ct. exception established to the doctrine of 744. immunity absolute testimonial “insofar as performed the function of a [an official] XIII, XIV, 2. Counts witness,” Fletcher, complaining Kalina v. XV—Perjury (Ingles) 502, 139 Moldowan also asserts claims (1997); Malley 471 see also L.Ed.2d Fifth, against Ingles Detective under the 335, 340-41, Briggs, 475 106 Sixth, and Fourteenth Amendments based (1986), 271 that exception 89 L.Ed.2d allegation during the on Moldowan’s testimony does not extend to delivered at trial, Ingles perjury by first “committed (dis Vakilian, trial. See 335 F.3d at 516 that he testifying prepared had statements between an officer’s role as a tinguishing regarding any evidence that was relevant “complaining “testifying witness” and case, when, fact, to the he had failed witness”); Spurlock, 167 F.3d at 1003-04 Burroughs[’] exculpatory reduce Mr. state (distinguishing between testimonial 293.) (J.A. report.” ment to a written conduct). witness, pre-trial any As with Ingles responds Detective that he is enti enjoy immunity for police officers absolute immunity any for testimo tled absolute ju- any testimony at trial. delivered “at adversarial ny agree. he offered We (1955) (quoting Sant v. Van Gregory, F.3d proceedings.” dicial Co., Express 738. American (3d Cir.1946)), Michigan courts have held claims are perjury Because Moldowan’s “ only ‘the situation in which an action trial Ingles’ Detective entirely on based prosecution properly malicious would than related to testimony rather conduct knowingly lie is officer where witness,” In- “complaining his role as in a with complaint, swears false facts immunity. This entitled to absolute gles is ” probable out which there is no cause.’ previously he of whether regardless is true Arbic, complain- King Mich.App. as the the arrest warrant signed (1987) Ingles therefore is ing (quoting witness. Detective Belt v. N.W.2d summary judgment Ritter, entitled Mich.App. 171 N.W.2d XIII, XIV, (1969)). and XV. Counts asserting prosecution his malicious 3. XXXI—Malicious Count against Ingles, claim Detective Moldowan (Ingles) Prosecution “failed, alleges only Ingles as the com- XXXI, as In Count Moldowan witness, to make a full and fair plaining law claim Detective serts state material and allowed disclosure of the facts Ingles prosecution. for malicious Under prosecution ... to continue without law, Michigan prima in order to state a (J.A. 313.) probable Although cause.” Mol prosecution, case of malicious facie vague conclusory Moldowan makes a prove: proceedings dowan “must Prior allegation complaint the criminal present plaintiff; of terminated favor against him “based on the ... false was probable 2. of cause for those Absence provided by Ingles,” evidence Defendant Malice, proceedings; pur 3. defined as any he never identifies such “false evi- pose securing prop other than that of (J.A. 314.) only dence.” Moldowan’s sub- claim; A adjudication er and 4. allegation in this claim support stantive of special injury directly that flows from the “deliberately Ingles is that Detective failed prior proceedings.” Payton City De of to convey [Burroughs’ statements] troit, Mich.App. 536 N.W.2d (J.A. 313.) County Macomb Prosecutor.” (1995) (citing Young City v. Motor Consequently, accepting even all of Mol- Ltd., Apartments Mich.App. true, allegations dowan’s we conclude (1984)). 790, 792 Because N.W.2d Mol that, Payton, under a claim for malicious obviously dowan’s 2003 re-trial terminated cir- prosecution does not lie under these favor, in his the first element is satisfied. cumstances. probable As to the issue of cause, gener consideration of that element 4. XXII XXIII— Counts ally disputes involves factual that extend Evidence Destruction of jurisdiction beyond scope of our (Schultz) interlocutory appeal. Michigan XXIII, In XXII and Moldowan Counts however, Appeals, has made clear statutory asserts and constitutional claims “[fjailure law, as matter of include on the de- against Officer Schultz based exculpatory adequate all facts is not struction of evidence introduced Mol- prosecution.” sustain a suit for malicious It undisputed dowan’s first trial. Nevertheless, Payton, at 242. 536 N.W.2d “ destroyed in contraven- this evidence prosecu because for malicious ‘[a]ctions ” explicit tion of the trial court’s order that jealousy,’ regarded tion are law with Roblyer Hoyt, preserved 343 Mich. 72 N.W.2d all such evidence was to be part further on the this date forward until order Officer Schultz. defin- “from Court, Michigan Court ing of the Circuit the contours of “area of constitu- Michigan Supreme. Court.” Appeals, or tionally guaranteed evidence,” access to 2613.) (J.A. however, the Supreme Court has devel- oped separate tests “to determine whether XXIII, as In Count Moldowan government’s preserve failure to evi- statutory claim under 18 U.S.C. serts a dence rises to the level of a process due however, provision, provides § 1503. That exculpa- violation cases where material justice for obstruction of penalties criminal accessible, tory evidence versus through corrupt conduct and threats [merely] cases ‘potentially where useful’ force; provide it does not a civil claim for evidence is not accessible.” Wright, 260 monetary damages. Nor does violation of (citations omitted). F.3d at 570 As we claim for provision give rise § damages explained regard under 42 1983 because above U.S.C. Moldowan’s explicit “rights-creating it does not contain claims Ingles, supra Detective see Detroit, City language.” Johnson v. IV.C.l, Part the Supreme Court has rec- Cir.2006) (6th (holding F.3d ognized that the state violates a suspect’s merely “statutory language ‘benefits’ process rights, regardless due of the bad putative plaintiffs specific rights- without actor, faith of the state where material language is insufficient to confer a creating exculpatory preserved. evidence is not right enforceable under personal federal Trombetta, See 467 U.S. at 104 S.Ct. Doe, (citing Gonzaga 1983” Univ. v. Accordingly, the more burdensome 153 L.Ed.2d faith requirement apply bad does not (2002))). Accordingly, Officer Schultz exculpatory where material evidence was summary judgment is entitled to as to destroyed. Wright, lost or See XXIII. Count (“The at 571 destruction of material excul- constitutional claim in patory process

Moldowan’s evidence due violates re- hand, XXII, Count on the other is a more gardless government of whether the acted question. safeguard involved “To a defen faith.”); in bad see also Monzo v. Ed- process right present dant’s due a com (6th Cir.2002) wards, 568, 281 F.3d 580 defense, plete Supreme Court has de (discussing requirement only bad faith veloped might loosely ‘what called the be evidence). potentially terms of useful constitutionally guaranteed area of access tests, In light of these distinct Moldowan ’’ Wright, to evidence.’ 260 F.3d at 570 only would need to demonstrate bad faith Trombetta, 485, (quoting at 104 467 U.S. if merely “poten- the evidence at issue is 2528). Trombetta, instance, S.Ct. In for however, tially stage, useful.” At this we Supreme recognized disputed cannot resolve issue of fact. may impose duty Constitution on the Johnson, 313-18, See 515 U.S. at 115 S.Ct. preserve state “to evidence” where such 2151; 444 Gregory, F.3d at 744-45. Nev- “might expected play evidence be ertheless, assuming that even the evidence significant suspect’s role defense.” materially exculpatory, at issue was Mol- 488, 104 467 U.S. at S.Ct. 2528. required dowan still would be to show that argue Defendants again even “exculpatory value” of the evidence though recognized Trombetta that the fail- “apparent” destroyed. before it was preserve may give ure to evidence rise to Trombetta, 467 104 U.S. S.Ct. 2528. violation, summary judg- a constitutional Although the record indicates that the ment nevertheless is warranted because was, materiality of this or at least Moldowan cannot demonstrate bad faith evidence qualified immunity is been, Detective Because apparent should have against a mu officers, unavailable in 1983 claims investigating other Ingles and Pearson, 129 S.Ct. at 822 nicipality, see in the record that is no evidence there Lewis, County (citing Sacramento any knowledge whatso- Schultz had Officer of 1708, 140 841 n. the evidence that about the nature of ever (1998)), City instead ar L.Ed.2d to Officer destroyed. According he that Moldowan cannot establish mu gues he was as- undisputed testimony, Schultz’s nicipal liability any of these claims be task of entirely ministerial signed underlying he cannot cause establish inquiries annual to the detec- sending out deprivation right. of a constitutional As case, asking each wheth- charge tives in of above, however, we find that explained being wanted the evidence er the detective Moldowan’s failure-to-disclose claims “held, destroyed room property held against Ingles implicate Detective do testified that he had or released.” Schultz clearly process rights. established due case, in the Moldowan had no involvement Moreover, recognize sys courts “[t]he evidence was knowledge type no of what of tematic failure to train officers ade room, being property held in the and was quately policy as or which can lead custom requiring the court order not aware of liability.” city Gregory, F.3d preserved. trial be evidence from the first Harris, (citing City Canton v. 489 U.S. of light read in the most favorable to Even 103 L.Ed.2d 412 Moldowan, no simply there evidence (1989)). consistently This Court has rec that the any that Officer Schultz had idea may that a mu ognized plaintiff establish destroyed he “could form a basis evidence nicipal liability by showing policy “a of Young- exonerating the defendant.” inadequate training supervision,” includ blood, S.Ct. 333. We policy tolerating rights “a of federal ing therefore reverse the district court’s denial neverthe violations unwritten but [that] summary judgment XXII. Count City entrenched.” Thomas v. less Chat (6th Cir.2005) tanooga, 398 F.3d 5. Counts XXIV XXVI— County, (citing Doe Claiborne Liability (City Municipal (6th Cir.1996)). light Warren) controlling authority, we conclude allegations, when taken as Moldowan’s Moldowan also asserts various true, sufficiently City’s that the establish City and the claims Warren train alleged adequately failure to its offi Department. Police Because the Warren potentially cers his constitutional violated Department district court dismissed the as rights. As the Court consistent Supreme appeal a defendant and Moldowan did not ly recognized, city has “a can be liable ruling, only City’s susceptibility that the to inadequate training § under 1983 for of its XXIV, suit is before us. In Mol Count Harris, 388, employees.” at 109 489 U.S. City dowan claims that the is liable under 1197. S.Ct. failing § for to train adequately 1983 its police regarding officers the constitutional discussing In the “failure-to-train” theo- In rights of criminal defendants. Count liability, ry municipal Supreme of XXVI, City Moldowan claims that the explained that “the focus Court Harris liable because an unidentified individual adequacy training must be on of the [the] “policy-making authority” partic- with ordered the to the tasks the program relation perform.” destruction of evidence in contravention of ular officers must Id. at Although trial 1769. Harris involved a court’s order. S.Ct. XXVI, As to to train its officers to deter- Count we also must city’s failure required a detainee medical mine whether determine whether Moldowan can estab care, spoke Court more Supreme municipal liability lish based on the deci may happen that “it that broadly, noting an having sions unidentified “individual fi assigned specific to offi- light of the duties policy-making nal authority.”20 In Monell the need for more or employees cers or Services, Department Social New n obvious, training is so and the different City, York 436 U.S. 98 S.Ct. likely to result in the viola- inadequacy so (1978), Supreme L.Ed.2d 611 poli- that the rights, tion of constitutional government that local held units could be reasonably cymakers city can be § held liable under for deprivations deliberately indifferent said to have been rights, of federal but concluded that to the need.” Id. The Court noted § support 1983 did not respondeat superi- theory liability issue “on which liability, reasoning that “Congress did Appeals agreed,” have all the Courts municipalities not intend to be held liable array in a of areas. collecting cases broad pursuant unless action municipal to official 6,127 Id. at 388 & n. S.Ct. 1769. policy of some nature caused a constitu already have Because we determined at.691, tional tort.” Id. 98 S.Ct. 2018. duty preserve that the have a to police Cincinnati, City Pembaur v. prosecutor turn over to the evidence that (1986) 106 S.Ct. 89 L.Ed.2d 452 recognize having exculpatory however, (plurality opinion), the Court exculpatory value or where the value of policy” clarified that this “official require apparent, the evidence is Harris dictates ment did not preclude municipal liability City corresponding has a obli- single by “for a decision municipal policy gation adequately to train its officers in makers under appropriate circumstances.” regard.19 See id. 480, 106 Id. at S.Ct. 1292. city may that a (recognizing be liable Although recognized Pembaur “in failing provide adequate training for policy-maker liability, the Court made light assigned specific of the duties offi- every clear that “not decision municipal Brady, employees”); cers or 187 F.3d subjects automatically officers the munici (noting properly handling excul- § pality liability.” func- Id. patory evidence is “standard tion”). Rather, municipal liability City argues policy directing 19. also that the record does official officers to withhold liability support not cause, in this case be- exculpatory prosecutor. evidence from the Gregory, City unlike introduced evi- alleged persistent Nor has he a "clear and demonstrating developed it dence has Doe, pattern” of such conduct. See implemented adequate training for its fact, City points deposition at 508. In disputes adequacy officers. Moldowan testimony suggesting and sworn statements Resolving disputed this effort. such factual pattern that no such or custom exists. Never- beyond scope issues is of this interlocu- theless, alleged whether Moldowan has facts tory appeal. satisfy sufficient elements of claim municipal liability beyond scope of this vigorously argue 20. Defendants even interlocutory appeal. The evidence on which true, taking allegations all of as his Moldowan not, rely Defendants does as did the record prevail will not able be on Count XXVI. Scott, Supreme evidence before the Court in argument appeal. This does have some De- utterly discredit]” “so Moldowan's asser- discovery, spite yet extensive Moldowan has jury tions such that “no reasonable could identify responsible individual for or- dering have believed him.” 550 U.S. at the destruction of evidence. Moldow- any introduced also has not evidence of an S.Ct. 1769. circuit, well-settled In this “[i]t decisionmaker only where “attaches pled claims must be with conspiracy mu- that authority to establish final possesses vague degree specificity or- and respect to the action some policy with nicipal words, unsupported by conclusory allegations the official Id. In other dered.” establishing final for facts will not be sufficient “responsible material must be activity § respecting such a claim under 1983.” Gutier government policy state such (6th can be held liable.” municipality Lynch, before rez v. Cir.1987). reviewing After each of Mol Id. claims, it is evident conspiracy dowan’s therefore, Pembaur, City Under claims plead that he has failed to these for the under may be held liable V, requisite specificity. Count with the exculpatory evidence to disclose failure instance, merely asserts for Moldowan of evidence from and the destruction Ingles, that Dr. Warnick and Detective trial, though those first even Moldowan’s unnamed members of the along with other to an pursuant taken actions were Department, “conspired Police to Warren And, contrary to overarching policy. violating gether illegal purpose for the assertions, “policy- municipal Defendants’ (J.A. 287.) support To rights.” civil [his] clearly estab- liability maker” has been claim, only Moldowan offers one sub at least since Pembaur was decid- lished allegation, factual that “Defen stantive ined 1986.21 arranged] photograph ... for the dants conclude that Moldowan’s Because we Fournier and ing of the bite marks Ms. City are based on claims against claims making molds of Mr. Moldowan’s and implicate clearly established constitu- (J.A. 287.) Mr. dentition.” Mol Cristini’s rights, we affirm the district court’s tional allegations dowan makes no other of acts summary judgment as to these denial conspiracy. in furtherance of a taken claims. any allegations, offering Without further incorporates “prior then these Moldowan V-VIII, XVI-XIX, 6. Counts VI-VIII, allegations” serially in Counts XXXIV—Conspiracy Claims recasting this claim as different constitu Third Amended Com Moldowan’s tional violations. Moldowan takes the plaint alleg also asserts numerous claims conspira in all of his other approach same Defendants, ways, ing that the various claims, cy offering nothing more than one conspired together to violate his constitu conclusory allegation in claim in his first rights. conspiracy tional Moldowan’s series, repeatedly recasting and then against are asserted Defendants In claims allegation as different constitutional Fournier, gles, acting and Dr. Warnick violations. unnamed together concert as well with Gutierrez, allega- of the As review Depart members of the Police Warren tions contained in Moldowan’s various County ment and the Macomb Prosecu “they are conspiracy claims evinces tor’s Office. policy-making au- disagree that Mol- "the individual with final 21. We also with notion dowan cannot make out a claim thority ... the destruction of the who directed City XXVI because he under Count cannot materiality evidence” was aware of the any part show constitutional violation on evidence, and thus did violate Moldowan’s Although Officer of Officer Schultz. Schultz Youngblood. rights under Trombetta did not violate Moldowan’s constitutional least, Thus, stage at this we are not inclined evidence, rights by destroying the case Mol- summary judgment grant on that basis. may dowan nevertheless be able to show by a motion for This conclusion is not insufficient to withstand affected the trial they] determination, ... summary judgment prior court’s [because Moldowan’s speci- requisite trial, lack the material facts probable first cause existed. a ficity necessary conspiracy Moore, to sustain See Hinchman v. 312 F.3d 1539; (6th claim.” 826 F.2d at see also Jaco Cir.2002) (“[A] 202-03 finding of (6th Bloechle, v. 739 F.2d Cir. probable prior cause in a criminal pro- 1984) (affirming conspiracy dismissal of ceeding plaintiff does not bar a in a sub- “complaint merely alleged claim where sequent civil action from a maintaining conclusory negligence language void broad prosecution claim for malicious under allegations necessary of the factual to Michigan law where the claim is based on support conspiracy theory”). a Accord- officer’s supplying false informa- ingly, summary judgment appropriate probable tion to cause.” (citing establish conspiracy as to each of Moldowan’s nine Park; City Darrah v.. Oak 255 F.3d Gardner, Spadafore claims. See (6th Cir.2001))). 301, 311 (6th Cir.2003). F.3d 853-54 Nor persuaded by are we Defen arguments dants’ that we can or should Imprisonment 7. Count XXXV—False disputed resolve the factual issues underly XXXV, In Count Moldowan as ing probable cause determination. against City serts a claim of Warren probable Whether cause existed to support imprisonment for false and continued sei the decision to arrest and detain a suspect probable zure without cause under the generally question is a may of law that be Specifically, Fourth Amendment. Mol by reviewed de novo this Court. See Unit that, alleges Michigan after the dowan Su Combs, (6th ed States preme Court reversed his conviction Cir.2004) Hill, (citing United States v. longer “probable there no cause (6th Cir.1999)). F.3d Because of had committed the [he] to believe however, the posture appeal, of this we criminal acts that Defendant Fournier ac disputed cannot consider the factual issues of,” thus, “[b]y him cused virtue of underlying Moldowan’s claim that there being held under house without arrest probable was want of cause. See John cause,” probable “unlawfully he was re son, 313-18, 2151; (J.A. 319-20.) strained.” Gregory, F.3d at 743-44. thusWe Spurlock, that plain- this Court held affirm the district court’s denial of sum alleged tiffs asserted claims that viola- mary judgment as to this claim. rights tions established constitutional by alleging wrongfully that “defendants V. investigated, prosecuted, in- convicted and turn by Next we to the claims raised Dr. them; carcerated defendant [a (Case 07-2116). appeal Warnick’s No. Dr. fabricated evidence and manufac- officer] odontologist Warnick is the forensic who cause; probable they tured [and] expert opinion, testified his in custody, despite were held a lack of conclusively bite-mark evidence linked probable cause do so.” 167 F.3d at Moldowan attack. Dr. to the Warnick’s Spurlock rights also held that the testimony undoubtedly major played role in question clearly were established in Moldowan’s conviction it confirmed April alleged least the date of the testimony Fournier’s that Moldowan was conduct in that case. Id. 998-99. Un- her then, one of assailants. Moldowan asserts Spurlock, nearly der Moldowan’s Dr. allegations implicate identical also various claims Warnick. Each must clearly right. established constitutional of these claims considered in turn. for the defen- I-IY—Fabricating summary judgment nied Evidence

A. Counts ground that even under the dant on Exculpatory Withholding the facts the de- defendant’s version of Evidence clearly estab- fendant’s conduct violated I-IV, Moldowan asserts In Counts law, clearly pro- whether the law lished Fourth, rights of his under violations the defendant claims scribed the actions Amendments, Fifth, Sixth, and Fourteenth he took. Warnick, “either inten that Dr. alleging (emphasis at 105 S.Ct. 2806 indifference tionally or deliberate with added). Accordingly, we need not deter- truth disregard of the with reckless and/or stage at this whether Moldowan’s mine rights, constitutional and of [Moldowan’s] a claim on which relief complaint states impeach and withheld fabricated evidence whether, only assum- may granted, be but the Ma- ing exculpatory evidence from Moldowan, by ing the facts asserted County [Mol Prosecutor and from comb by “legal allegedly norms violated the de- 284.) (J.A. In defense counsel.” dowan’s] at clearly fendant were established argues Dr. that he is response, Warnick Id. challenged time of the action.” on these summary judgment entitled that ex Gregory, In we reasoned complaint claims because Moldowan’s in an pert forensic examiners “act investi identify allegedly unconstitu failed to they interpret and gatory fashion when argument is tional conduct. Dr. Warnick’s evidence,” physical document and thus we not well taken. that “the intentional fabrica determined subject tion a forensic to the report” Qualified immunity gov shields to the inten applied same considerations acting scope ernment officials within the by fabrication of evidence tional liability inso their official duties from civil prosecutor. officer or 444 F.3d at 740. clearly far as their conduct does not violate framework, Gregory Under that concluded Harlow, 457 rights. established See may subject expert that a forensic be 817-18, clarifying 2727. deliberately suit under 1983 for with qualified immunity inqui scope holding exculpatory the existence of foren ry, the in Mitchell: Supreme Court stated fabricating sic evidence or forensic evi An appellate reviewing court the denial Relying at 744. on Spurlock, dence. Id. immunity of the defendant’s claim of Gregory expert reaffirmed that a forensic “ need not consider the correctness seriously defendant ‘cannot contend facts, plaintiffs version of the nor even [investigator] would not know reasonable plaintiffs allega- determine whether the inappropriate actions were such actually tions state a claim. All it need performed violation of individual’s ”22 question determine is a whether law: rights.’ ... Id. at 744 constitutional 1005) (alter legal allegedly norms violated (quoting Spurlock, 167 F.3d at clearly defendant were established Gregory). Gregory’s ation in reliance on or, in challenged significant the time of the actions we Spurlock is because deter norm legal cases where the district court has de- mined that case Contrary suggestion, allegedly engaged prior to Defendants' activities he subsequently taking fact that Dr. Warnick testified as the witness stand. F.3d 738-39 ("Subsequent testimony pre- can insulate to these issues does not insulate him from merely liability. Gregory, As we made clear in abso- vious fabrications of evidence because testimony immunity lute relies on that fabricated evi- testimonial does not "relate dence.”). protect any backwards” to a defendant for early clearly provide established least as as vision cannot a basis for summary 998-99, April May judgment of 1990. 167 F.3d at because we presume must 1006. veracity of allegations. Moldowan’s Ac- cordingly, we affirm the district court’s allegations that Dr. Taking Moldowan’s denial of summary judgment as to Count manipulated Warnick fabricated and evi- XXXIII. true, we conclude that I- dence Counts clearly assert violations of a IV established VI. legal norm. affirm the We thus district Finally, we address whether Fournier is summary judgment court’s denial of as to immunity entitled to as to the various these claims. (Case claims against Moldowan asserts her Negligence B. Count XXXIII—Gross 07-2117). No, XXXIII, In Count Moldowan as Immunity A. Absolute Testimonial gross serts a claim negligence under matter, As an initial law, we law. note Michigan state Under Dr. War- to the extent enjoys statutory nick Moldowan’s immunity from liabil claims ity rely Fournier on allegations to the extent that his conduct was perjured trial, she offered scope testimony within the of his duties as the State’s 691.1407(2). expert. § forensic Fournier is entitled to- immunity. M.C.L. absolute Briscoe, Because Dr. plainly Warnick’s conduct 460 U.S. at 103 S.Ct. 1108. duties, scope falls within the of his Mol Fournier is entitled to immunity regard dowan must demonstrate that Dr. War- less of whether she conspired to deliver “gross nick’s conduct rises to the level of incomplete false or testimony. See Alioto negligence.” Payton, (6th See City N.W.2d Shively, 835 F.2d Cir.1987) negligence by (“The 242. Gross is defined stat doctrine enunciated ute as “conduct so reckless as to demon Briscoe v. LaHue also shields from liabili strate a substantial lack of concern for ty alleged conspiracies give false and injury whether an results.” M.C.L. incomplete judicial testimony proceed 691.1407(7)(a); see also Tollman v. ings.”). Markstrom, Mich.App. argues Moldowan that Fournier is not (1989). N.W.2d 618 Whether Dr. War- entitled to testimonial immunity under alleged nick’s conduct sufficiently Briscoe because she was the “complaining reckless, however, is a question of fact that above, witness.” As noted Supreme beyond scope juris of this Court’s scope Court has excluded from the pro- diction, disputed and thus that issue of fact by tections offered the doctrine of absolute precludes summary judgment. immunity any conduct taken as the “com- witnesses,” plaining such addition, as where a argues

In Moldowan also officer submits a false in support affidavit intentionally that Dr. Warnick withheld of an application. arrest warrant exculpatory See Mal- evidence and fabricated evi 340-41, ley, 475 U.S. at support dence to his S.Ct. 1092. conclusions. Because record, however, immunity plainly The provided by “the shows that MCL 691.1407(2) Fournier, apply Ingles, does not to an Detective intentional functioned governmental complaining tort as the submitting individual em witness in ployee,” Taylor, Mich.App. August complaint Walsh 1990 criminal (J.A. 2238.) (2004), 689 N.W.2d that pro- against Moldowan.23 fact, Ingles signed Complaint Moldowan's Third Amended Com- dant [the] as the plaint explicitly acknowledges that "Defen- citizen, nier, alleging that she only private identifies Fournier complaint criminal (J.A. Fifth, Fourth, complainant.” his conspired “victim or to violate as the 2238.) Sixth, rights Fourteenth Amendment withholding ex- fabricating evidence or by distinction. no mere formal This is being addition culpatory evidence. In an affidavit did not submit Fournier IV.C.6, Part pled, supra see inadequately warrant, take nor did she the arrest secure cannot main- hold that Moldowan to initiate Moldowan’s we also any other actions previous- against § courts Four- prosecution arrest or tain an action under com- applying the ly have found critical not a “state actor” and nier because she is Although exception. plaining witness “under color of law.” See did not act of Moldowan Fournier’s identification (6th Proctor, 584, 590 316 F.3d Tahfs critical certainly attackers one of her Cir.2003) (“A plaintiff may proceed not crimi- decision to file a Ingles’ to Detective party § a ‘no against private under and the against Moldowan complaint nal discriminatory wrongful’ or matter how decision to County Prosecutor’s Macomb (quoting Am. party’s the conduct.” Mfrs. her state- prosecution, pursue Moldowan’s Sullivan, Ins. Co. v. 526 U.S. Mut. broader, only of a inde- part ments were (1999))). L.Ed.2d 130 119 S.Ct. investigation. As the record pendent recognizes This circuit three shows, also were led to Moldow- the sister, private con by determining statements from Fournier’s for whether tests arrests, other evi- prior and Moldowan’s to the state: the' fairly duct is attributable fact, Ingles, testified dence. In Detective test, compulsion the public function state not to Fournier until two speak that he did test, and the nexus test. assault, time days during which after public “requires The function test investigation proceeded without her as- his private entity powers exercise which Ingles By sistance. the time Detective traditionally exclusively reserved to are Fournier, already he had iden- interviewed ” typical examples state.... are likely suspect. a tified Moldowan as domain. running elections or eminent leading up Fournier’s limited role Given requires compulsion proof The state test arrest, light to Moldowan’s encouraged significantly the state inquiry by po- conducted independent private party, coerced the or somehow lice, ex- extending complaining witness overtly covertly, par- to take a either run ception to Fournier case would really ticular action so that the choice is analysis must counter to the we functional test Finally, that of the state. nexus Holloway v. apply in this context. See sufficiently relationship a close requires (6th Cir.2000)

Brush, 220 F.3d (i.e. or con- through regulation state (“Absolute a immunity is determined tract) private between the state and ‘the nature analysis functional looks to may attrib- actor so that the action be identity performed, of the function not the ” uted to the state. performed (quoting of the actor who it.’ (6th Garbarino, 192, 195 Ellison v. 2606)). Buckley, 509

Cir.1995) (citations omitted). Moldowan § 1983 B. Count XVI-XIX— concluding any offers no basis Conspiracy Claims applies Providing here. infor- these tests ques- police, responding mation to the XVI-XIX, Moldowan Counts crime, offering § witness against under Four- tions about asserts claims 275.) (J.A. charging Jeffrey dowan with four felonies.” complaining witness Mol- (“ trial testimony at a criminal does ex- Id. at 613 n. 28 ‘The exercise of the liability for individual to pose private officer’s discretion makes initiation of “under color of law.” See actions taken prosecution protects his own from Briscoe, 103 S.Ct. 1108 liability person whose information or (“[Section] recovery does not allow accusation has led the officer to initiate the private party for testi- damages ” proceedings.’ (quoting 3 Restatement judicial proceeding.”); in a see also mony “Thus, g)). Torts 2d cmt. in Michi- Gunnell, 722 F.2d Benavidez v. gan, prosecutor’s exercise of his inde- (10th Cir.1983) (“We no case in know of pendent initiating discretion and main- report which the of a state crime is action taining prosecution complete a is a defense under color of state law under 1983. to an prosecution.” action for malicious furnishing po- The mere of information to added). (emphasis Id. at 613 joint lice officers does not constitute action a under color of state law which renders precisely That the case here. As §§ private citizen liable under above, although noted Fournier’s identifi- 1985”). cation of Moldowan as one of her attackers summary thus is entitled to Fournier certainly was critical to the Macomb Coun- XVI, XVII, XVIII, as to judgment Counts ty him, prosecute Prosecutor’s decision to XIX. and only her part statements were of a broad- er, independent investigation. Under con- XXX—Malicious C. Count trolling Michigan authority, the exercise of Prosecution independent judgment and discretion on cannot sustain Moldowan also part prosecutor and the against prosecution a claim for malicious law, precludes; aas matter of a law, malicious Michigan plaintiff Fournier. Under may prosecu prosecution against maintain a claim of malicious claim Fournier. “against private person” tion where the plaintiff “proof private per offers that the D. Count XXXVI—Intentional prosecu son instituted or maintained the Infliction of Emotional prosecutor

tion and that the acted on the Distress pri basis of information submitted person proba vate that did not constitute XXXVI, In Count Moldowan also ble cause.” Matthews v. Blue Cross & asserts a state law intentional infliction of Shield, Blue 456 Mich. 572 N.W.2d claim against emotional distress Fournier. (1998). law, however, Michigan According to the Third Amended Com recognizes prosecution also criminal plaint, that claim rests on al Fournier’s “is in the discretion of the initiated sole leged conduct “outside the courtroom with prosecutor.” Id. at 605. This is critical (J.A. respect to the prosecution.” second because, Michigan Supreme as the 321.) But Fournier’s role in the second Matthews, explained intervening prosecution testifying. was limited to “independent of prosecutorial exercise nothing suggest There is in the record to private discretion establishes that the de anything that Fournier did “outside the prosecution.” fendant did not initiate the leading courtroom” to the second trial up Thus, if Id. 613. or the support that would Moldowan’s claim. Ac prosecutor prosecution initiate the cordingly, Fournier is entitled to absolute through basis of their evidence obtained immunity as to Count XXXVI. Bris See independent investigation, own the com coe, 342-45, plaining liability. victim is insulated from KETHLEDGE, Judge, Circuit VII. judgment part, in the concurring above, set forth For all of the reasons dissenting part. (1) jurisdic- have hereby: hold we we interlocutory to consider Defendants’ tion many on his puts Moldowan labels Moldow- thus DENY each of appeals, and claims, Ingles his claim Officer but (2) dismiss; REVERSE an’s motions to disclosed, have essentially that he should court and judgment of the district prosecutor, to the the fact and presumably V, summary judgment as to Counts grant Jerry alleged state- Burroughs’ contents of XVIII, XIX, VI, VII, VIII, XVI, XVII, majori- I Ingles. agree ment to with ground on the Moldowan XXXIV ty’s conclusion under standard claims with plead conspiracy failed to his here, Moldowan is enti- applicable review (3) requisite specificity; REVERSE with that claim. But I proceed tled to court and judgment of the district disagree majori- how the respectfully with summary judgment as to Counts grant ty gets there. XXII, XIII, XIV, XV, on the and XXXVI entitled to ground that Defendants are I. (4) claims; RE- immunity as to these of the district court judgment VERSE A. summary grant judgment and as to Counts caveat, majority significant With XVI, XVII, XVIII, XIX ground and on the by extending the no-fault re gets there support against § a claim 1983 cannot Brady Maryland, v. gime Fournier, individual, under these private (1963)—or 1194, 10L.Ed.2d 215 (5) circumstances; judg- REVERSE something functionally “analogous” to least grant ment of the district court and sum- it, Maj. Op. police at 724—to officers. The mary judgment to XXIII on the as Count caveat, below, may § ground prac that 18 U.S.C. 1503 does not as discussed as a can- provide private right of action and insignificant tical matter render the differ support damages a civil claim for un- not majority’s approach and ences between the (6) 1983; judgment REVERSE the der however, my important, own. I think it to summary grant of the district court and why Brady regime explain extending the judgment ground as to XXX on the Count police unprece to officers would be both Michigan support law does not a claim dented and unwise. a victim prosecution malicious Brady imposes “The doctrine abso- circumstances; complainant under these all duty prosecutor produce lute on the to (7) judgment of the dis- REVERSE materially evidence in the State’s favorable summary grant judgment trict court and Wilhoit, possession.” Villasana ground to XXXI on the Count (8th Cir.2004). terms, By its F.3d Michigan support not a claim for law does therefore, Brady applies prosecutors, prosecution against Detective In- malicious itself, course, Brady police officers. (8) circumstances; gles under these and all, did not involve conduct at but judgment AFFIRM the of the district concerned a criminal defendant’s rather summary judgment as to denying court attempt upon to obtain a new trial based IX, XI, XII, XXIV, I, II, III, IV, X, Counts prosecution’s suppression of evidence XXVT,XXXIII, ground on the XXXV Brady granting par- favorable to him. allegations implicate that Moldowan’s conviction, the tial relief from his rights clearly established constitutional prosecu- suppression by held “that the disputed preclude issues of fact sum- to an tion of evidence favorable accused mary judgment. [i.e., request process present violates due where the State’s at trial upon case guilt the evidence is material either to or prosecutor], who can expected be punishment, irrespective good gather material evidence from en- law prosecution.” faith or bad faith agencies, forcement and who is in added). (emphasis U.S. at 83 S.Ct. 1194 position best to evaluate whether evi- Brady duty, by Thus the as stated dence must be disclosed it because Court, Brady imposed prosecu- on the materially favorable to the defense. tor; since, Supreme cases “[t]he Villasana, too, 368 F.3d at 979. And so imposed Court has never this absolute extension, rejecting the same a plurali- did duty on law enforcement officials other ty of the en banc Fourth Circuit: Villasana, prosecutor.” than the 368 F.3d Brady duty The is framed the dic- 979; Collins, see also Jean v. adversary tates of the system and the (4th Cir.2000) (en (Wilkin- banc) 656, 660 prosecution’s legal role therein. Legal son, C.J., concurring in the judgment) terms of art define its bounds and limits. (“The Supreme always Court has defined prosecutor The lawyer’s must ask such Brady duty as one that rests with the questions as whether an item of evi- prosecution”) (collecting Supreme Court “exculpatory” dence has “impeach- cases); Lindsay Bogle, 92 Fed.Appx. (6th Cir.2004) (“the ment” value and Brady whether such evidence obli- gation applies only prosecutors”). is “material.” It inappropriate would be charge police answering with these imposition of that same absolute questions, same job gather- for their officers, therefore, duty would ing quite evidence is different from the represent Brady extension of that the prosecution’s evaluating task of it. Supreme not in Court itself has made the years 46 since it rendered the decision. I Jean, (Wilkinson, 221 C.J., F.3d at 660 do not think the omission is fortuitous. concurring judgment). in the terms, only by by Not its but also its unnecessary. The extension is also content, Brady duty the is tai- uniquely Brady already rule “encompasses evidence prosecutors. applies lored to It to excul- only police ‘known to investigators and not “material”; patory evidence is and the ” Strickler, prosecutor.’ to the 527 U.S. at Supreme says that “[s]uch evidence 280-81, (quoting Kyles 119 S.Ct. 1936 ‘if proba- is material there is reasonable 419, 438, Whitley, 1555, 514 U.S. bility had the evidence been disclosed (1995)). 131 L.Ed.2d 490 But it is the defense, proceeding to the the result themselves, prosecutor, not police who is, the criminal [that would have been trial] ” duty bears an absolute to disclose it. In- Greene, Strickler v. 527 U.S. different.’ deed, solely police even as to evidence 263, 280, 1936, 119 144 L.Ed.2d S.Ct. 286 possession—which is the kind of evidence (1999) (quoting Bagley, United States v. Supreme spe- issue here—the Court has 473 U.S. S.Ct. cifically impose Brady duty refused to (1985)). L.Ed.2d 481 a particular Whether directly upon police, saying that to do piece changed of evidence would have so “would ... amount to a change serious trial, course, result of a criminal is a of course from the Brady line cases.” judgment prosecutors, police not offi- Kyles, 514 U.S. at 1555. cers, S.Ct. Eighth are trained to make. The Instead, refusing comply Brady, Circuit so observed in to extend with “the indi- Brady police officers: prosecutor duty vidual has a to learn of any favorable evidence known to the oth- logical impose Brady’s

It is absolute duty government acting government’s on the official who will ers behalf evidence, case, patory all of the information including police.” Id. added). any (emphasis And judgment,

115 S.Ct. 1555 thus filtered an officer’s even duty, diligent no matter how faith, breach of good potentially in the be- purest efforts, entitles the crimi- prosecutor’s of a lawsuit him. comes the basis trial; prosecu- a new “the nal defendant to An an excul- recognize officer’s failure responsibility failing for to disclose tion’s clue, example, pass and thus to patory for only police], favorable known to the [even prosecutor, it on to the would be a viola- im- rising to a material level of evidence tion of the Due Process Clause. That the Id. at portance inescapable.” is merely negligent, or even that officer was Moreover, below, as discussed S.Ct. have under- no reasonable officer could already disputes no one officers time, significance stood the clue’s at the duty—though not a independent have an defense; duty Brady would be no materially ex- Brady duty—not to conceal if absolute. So the clue could have Thus, in bad faith. as culpatory evidence changed the result of criminal defen- matter, extending Brady po- practical trial, dant’s first the defendant would accomplish lice officers would little with one; only get a second he would be enti- to the of criminal trials respect fairness him pay tled to have the officer for his already that current does not accom- law troubles as well. plish. exposure only This would arise not from accomplish, that extension would What evidence considered isolation. We must rather, significant increase in lawsuits cumulatively consider evidence deter- enjoy officers. Prosecutors against police mining materially exculpatory whether it is immunity for actions taken in absolute purposes Brady, Kyles, see capacities, their official see Imbler v. Pachtman, 409, 413-16, so an officer’s fail- S.Ct. (1976), dots, exculpatory L.Ed.2d 128 whereas ure to connect the officers, therefore, officers do not. Police well, damages. would render him liable for object special would become the of atten- Two, of, any pieces or indeed number criminal tion from defendants who believe information, might have seemed unim- that allegedly exculpatory evidence should portant investigator to a reasonable at the been, not, have but was disclosed to their time, present exculpatory an pic- but in prior respect counsel to trial. And so, just ture fact arranged after the when present large target. would a grounds would be for a suit. officers, particularly Ingles Police ones like unleashed, Once these suits would be field, investigate violent crime in the who very stop difficult to short of trial. For in great obtain a of information in deal refuge of immuni- qualified these cases the an investigation. course of Some of what ty illusory. Qualified immunity would be obtain, they casings, tangible, like shell requires “clearly the officer violate it, much things they may but like have rights established” constitutional be lia- in seen or heard the course of their activi- ble, that, definition, being by the idea with ties, matter, practical is not. As a liability usually such limited to officers preserve, pass officer cannot and thus on they who or should have known were knew sees, prosecutor, everything to the he Katz, violating the law. See Saucier v. 533 hears, in investigat- or learns the course of U.S. 121 S.Ct. 150 L.Ed.2d ing a crime. He instead has to exercise (2001). 272 But it does an officer little judgment important about what seems and good to aware of the existence of a be what does not. But if an officer bears an if, duty materially generic duty, acting good excul- when faith absolute to disclose

749 counsel”); and defense ability, his he is not ecutors Hart v. to the best of (5th Cir.1997) breaching O’Brien, it. And be- that he is F.3d aware absolute, duty is a crimi- Brady cause § (permitting “against po- a 1983 claim a nal-defendant-turned-plaintiff would need who, learning patently lice officer after knew—or even that the officer prove evidence, exculpatory deliberately fails to have reasonable officer would any (internal it to the prosecutor”) disclose duty a to dis- the officer had known—that omitted). quotation marks at issue. particular information close Spurlock our own decisions in Nor do v. Foreknowledge illegality would be be- (6th Satterfield, Cir.1999), thus, practical a point; side Louisville, 444 Gregory City F.3d matter, immunity no qualified would be (6th Cir.2006), im- provide support for immunity at all. posing duty upon police such an absolute Spurlock officers. was not a failure-to-

B. all, disclose case but instead involved reason, then, appel- no federal good For claims of fabricated evidence. See 167 Brady’s no-fault late court has extended F.3d at 1005. And we decided Gregory Two circuits regime officers. emphatically jurisdictional on grounds. directly; and the issue have addressed (holding See F.3d 743-44 be- pointedly them refused to make both of White, cause the defendant officer’s “sole argu- In Porter v. the extension. (11th Cir.2007), the court ment with the “h[e]ld F.3d 1294 district court’s denial of Brady of care that the no-fault standard qualified immunity goes to whether there in the criminal or imposes prosecutors genuine exists a issue of fact for trial ... § place has no habeas context jurisdiction this Court lacks to entertain action a law enforcement damages appeal from [the officer’s] the district plaintiff alleges a vio- official which of qualified immunity court’s denial process.” lation of due Id. 1306. The violations”) (em- Brady Plaintiffs claim of “a act negligent court concluded that thus added). phasis provide or omission cannot basis for revealing heavy Still more is Moldowan’s liability seeking compen- in a action major- reliance—and to a lesser extent the liberty for loss of occasioned sation ity’s—on our decision in Hilliard Brady violation.” Id. at 1308. And (6th Williams, Cir.1975), 516 F.2d 1344 Villasana, Eighth Circuit held that a part, vacated in faith likewise apply “bad standard should (1976). 1453, 47 L.Ed.2d 729 The failure- process to due claims law enforcement to-disclose claim there was asserted preserved officers evidence favorable to against prosecutor, defendant to disclose it.” the defense but failed Williams, officer, police not the defendant F.3d at 980. (“Williams Clark. See id. withheld majority None of the cases that the cites report indicating an F.B.I. that there was duty of actually imposes Brady’s absolute jacket”): [plaintiffs] no blood on The Su- Most of upon police disclosure officers. vacated our decision to preme Court as liability for precisely them instead find ' that claim on direct review. The other give sort of bad-faith conduct that would case, Clark, claim in the Officer liability virtually any rise to under stan- upon “deceptive his and mis- was based See, e.g., City Chicago, v. dard. Jones leading testimony” at Hilliard’s criminal (7th Cir.1988) 985, (finding added). (emphasis trial. is to Id. Which liability “retaining for records in clandes- deliberately pros- say, police-disclosure concealed from Hilliard was not a tine files Moreover, Clark, Young the defendant.” exonerating to we at all. as case blood, 58, 488 U.S. at 109 S.Ct. 333. that a law enforcement plain “it thought evasive, gives mis- knowingly officer who Notwithstanding plain language, deceptive testimony during leading, and majority Youngblood reads to mean that escape civil liabili- trial cannot criminal required faith to showing no bad holding That too has since been ty!.]” Id. process by a violation of due establish Supreme Court. See invalidated police exculpatory “where ‘material evi- LaHue, 325, 328, 103 460 U.S. Briscoe v. Maj. Op. dence’ is at 730. concerned!.]” (1983) (“all 1108, wit- 75 L.Ed.2d 96 S.Ct. Youngblood quite say But does not that. lay as wit- officers as well nesses—police Youngblood says is that Due “[t]he What absolutely from civil lia- immune ness—are Process Clause of the Fourteenth Amend- testimony trial bility on their based ment, interpreted Brady, makes the judicial Hilliard is thus an proceedings”). faith of irrelevant good bad the State decision, of a which did not empty husk fails to disclose to the when the State the issue before us the first present exculpatory defendant material evidence.” possibly support and which cannot place, 57, (emphasis 488 U.S. at 109 S.Ct. 333 Brady to officers. extending police added). impose That statement does not duty upon police an absolute officers—as C. above, police shown there was no conduct Brady—but merely at issue in is instead 1. prosecutor’s restatement of the absolute today, majori as the The issue before us duty materially exculpatory to disclose evi- observes, ty correctly is one of law rather dence to the defendant. The evidence at I policy. than And would decide it as in Youngblood only “potentially” issue apply— The standard that I would such. however, 58, exculpatory, id. 109 S.Ct. Eighth and the one the and Eleventh Cir 333, so it scope fell outside the apply—is Supreme cuits the one that the prosecutor’s duty Brady. absolute under always far applied Court has so deter The Court therefore considered whether liability mine in the “area of officer consti duty had violated a “over and tutionally guaranteed access evidence”: imposed prosecutor, above” that on the id. namely, Young faith. v. bad Arizona 333, by failing preserve 109 S.Ct. blood, 51, 55, 488 U.S. S.Ct. that evidence. And the Court held (1988) (quoting L.Ed.2d 281 United States violation, Youngblood establish such a had Valenzuela-Bernal, prove police destroyed that the the evi- (1982)). L.Ed.2d 1193 dence in “bad Id. at 109 S.Ct. faith[.]” requires proof This standard the offi in “a engaged sup cer conscious effort to press exculpatory holding evidence.” But that does not mean that the California Trombetta, due-process violate a defendant’s (1984). when, faith, rights 81 L.Ed.2d 413 That re the absence of bad quirement they materially “both fail to preserve limits the extent of the or disclose police’s obligation exculpatory contrary, ... to reasonable evidence. To the as Youngblood bounds and confines it to that class of the Court’s reiteration of the clear, justice Brady duty cases where the interests of most makes the failure to it, i.e., clearly require provide those cases in which such evidence to the defendant merely the in police themselves their conduct would amount to violation the prosecutor’s duty dicate that the could form a absolute to disclose such evidence basis Kyles, light, encompass could be understood to See also U.S. evidence. (“the prosecutor individual Burroughs’ story regarding 115 S.Ct. 1555 all of the duty any to learn of favorable evi- has a crime, including the two mens’ admission acting others on the known to the dence Thus, the on sidewalk next door. when case, including behalf in this government’s in light viewed the most favorable to Mol- added). Nor does police”) (emphasis dowan, whole, Burroughs’ and as a testi- holding in Trombetta Supreme Court’s mony could be read to mean that he told duty impose officers an absolute that two Ingles essentially other men had materially exculpa- preserve disclose committing Ingles admitted to the crime Instead, Supreme tory evidence. investigating. was “rejected argument [Trombetta’s] There is no direct that Ingles evidence reasons!,]” the “first” of which for several “ Burroughs’ withheld statement in bad acting ‘the officers here were in faith. And I think wary courts should be accord their nor- good and in with faith ’” faith inferring bad from the mere fact of practice[.\ Youngblood, 488 U.S. at mal evidence, an officer’s failure to disclose lest Trombetta, (quoting 109 S.Ct. 333 practice bad-faith standard become in 2528) (emphasis U.S. that, But I absolute one. think under omitted). added; quotation internal marks here, present jury circumstances Youngblood That the Court discussed the Ingles’ could infer bad faith from failure to po- in connection with bad-faith standard Burroughs’ disclose statement—whose ex- merely tentially exculpatory evidence re- istence, fair, Ingles disputes—to flects the fact had the evidence there be materially exculpatory, course, there would prosecutor. jury been Of would be have been no need to discuss duties inference, free not to make that in part place. in Because in that event the first they might because choose to understand violated prosecutor would have his Burroughs’ testimony in a light less favor- duty Brady. under Moldowan, able or not to believe it at review, all. Given our standard of howev- 2. er, agree we are not so free. I therefore question There remains the whether proceed that Moldowan is entitled to with against Ingles pro- Molodowan’s claim can against Ingles. his claim Youngblood's ceed under bad-faith stan- upon Ingles’ claim dard. That is based convey prosecutor failure to to the agreement suggests, As bottom-line to In- Burroughs’ substance of statement my disagreement majority may with the gles. aspects Burroughs’ Two testimo- prove larger theory practice. than in view, First, ny, my are critical. he suppres- To establish an conscious officer’s personally testified that he had heard two materially exculpatory sion of evidence— men—neither of whom was Moldowan— plaintiff bad faith—a and thus his must discussing rape standing Fournier’s while prove, among things, police’s “the other next to house. That outside house his knowledge exculpatory value of the (as be) it testimony, when viewed must at the time” the criminal defen- evidence Moldowan, light most favorable to says dant it should have disclosed. been that the interpreted meaning could be *, Youngblood, 488 at 56 n. essentially men their involve- two admitted ground 333. And therein lies the common Second, Burroughs ment the crime. my approach between and that of the ma- story” “my Ingles. testified that he told reference, jority. Notwithstanding That when viewed in that same its rather extend- City § duty an of under 1983 that is liable for imposing defense of absolute ed officers, and its re- “A upon police Schultz’s destruction of evidence. mu- disclosure in this con- jection of a bad-faith standard nicipality ... cannot be liable under “ text, ‘Brady its declaration that cre- underlying § 1983 constitutional absent duty, singular ates a constitutional which violation its officers.” Blackmore v. prosecutors police capable officers are (6th County, Kalamazoo ” Maj. breaching ways[,]’ in different Cir.2004). above, As discussed Schultz did Jean, 221 F.3d at 656 Op. (quoting at 725 not violate constitutional Moldowan’s J., dissenting)), majority, (Murnaghan, rights disposed when he of the evidence credit, simply extend Bra- to its does City trial. The from Moldowan’s first duty police dy’s disclosure absolute therefore cannot be liable under 1983 on majority recognizes instead officers. this claim. that the cannot “practical concern reasons, I partially For these concur failing for to divine the be held accountable judgment, respectfully dissent in every scrap of evi- materiality possible part. Maj. Op. majori- at 733. And the dence.” ty' thus holds that a officer does not duty

breach his of disclosure unless the “ ” ‘exculpatory value’ of the undisclosed “ ” ‘apparent’ Maj. evidence to him. Op. Trombetta, (quoting 2528). applying When rule

to Moldowan’s claim Officer Schultz, majority agree— holds—and I HOWARD, In re Scott Petitioner. summary judg- that Schultz was entitled to ment because “there is no evidence in the Solis, Secretary, Hilda S. United States any knowledge record” he “had what- Department Labor, Respondent. soever about the nature of the evidence destroyed.” Maj. that he atOp. 738. No. 08-5799. Thus, end, majority extends Appeals, United States Court of

Brady’s duty of absolute to po- disclosure Sixth Circuit. officers, lice scope but limits the of that duty materially to evidence exculpa- whose Argued: April 2009. tory particular value was known to the July Decided and Filed: think officer sued. I approach the better simply apply would be the Supreme rule,

Court’s bad-faith rather than a modi- designed

fied version of an absolute rule however, prosecutors. In practice, probably operate

latter rule will equivalent

functional of the former.

D. exception,

With one I otherwise concur majority’s

in the disposition of the remain-

ing exception claims in the case. The con-

cerns in which Count Moldowan claims

Case Details

Case Name: Jeffrey Moldowan v. Maureen Fournier

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 1, 2009

Citation: 570 F.3d 698

Docket Number: 07-2115, 07-2116, 07-2117

Court Abbreviation: 6th Cir.