LEDURA WATKINS, Plaintiff-Appellee, v. ROBERT H. HEALY, in his individual capacity, Defendant-Appellant.
No. 20-1074
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 28, 2021
21a0020p.06
MOORE, GILMAN, and GRIFFIN, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b); Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:17-cv-13940—Matthew F. Leitman, District Judge. Argued: December 2, 2020.
COUNSEL
ARGUED: Davidde A. Stella, WAYNE COUNTY CORPORATION COUNSEL, Detroit, Michigan, for Appellant. Wolfgang Mueller, MUELLER LAW FIRM, Novi, Michigan, for Appellee. ON BRIEF: Davidde A. Stella, WAYNE COUNTY CORPORATION COUNSEL, Detroit, Michigan, for Appellant. Wolfgang Mueller, MUELLER LAW FIRM, Novi, Michigan, for Appellee.
KAREN NELSON MOORE, Circuit Judge. In 1976, 19-year-old Ledura Watkins was convicted of the murder of Yvette Ingram and sentenced to life in prison without the possibility of parole. The State of Michigan‘s case against Watkins hinged on a begrudged schoolfellow and a single hair: Watkins‘s 20-year-old high school classmate Travis Herndon testified that he and Watkins robbed and murdered Ingram together, and Detroit Police Department Evidence Technician Ronald Badaczewski testified that a hair found on Ingram‘s clothing matched a hair sample of Watkins. After Watkins‘s conviction, Herndon repeatedly recanted. In sworn affidavits, letters, and testimony, Herndon continuously attested that Wayne County Prosecutor Robert H. Healy and Detective Neil Schwartz threatened to charge him with Ingram‘s murder and another unrelated murder if Herndon did not tape a statement that implicated Watkins and testify to that effect at Watkins‘s trial. Yet Watkins‘s efforts to overturn his conviction were of no avail for four decades. In January 2017, Watkins presented to the state trial court new evidence that Badaczewski‘s hair analysis methods were seriously flawed. Based on this new evidence, the state trial court dismissed the case against Watkins without prejudice.
In December 2017, Watkins filed a
I. BACKGROUND
On September 6, 1975, schoolteacher and drug dealer Yvette Ingram was robbed and shot dead in her Detroit home. R. 30 (Am. Compl. at 4) (Page ID #7490).1 The Detroit Police Department
While in custody, Herndon told a police officer that 19-year-old Ledura Watkins robbed and killed Ingram on the orders of Gary Vazana, a corrupt police officer and drug dealer. Id.2 Days later, Robert H. Healy—an Assistant Prosecuting Attorney for Wayne County—and Neil Schwartz—a DPD Sergeant—interrogated Herndon about the Ingram murder. Id. at 2–3, 5 (Page ID #7488–89, 7491). Herndon told a different story to Healy and Schwartz; Herndon now asserted that both Watkins and Herndon, acting on Vazana‘s orders, drove Vazana‘s car to Ingram‘s home and “used Vazana‘s pistol to kill Ingram.” Id. at 6 (Page ID #7492).3 At some point, Healy left the interrogation room before returning and passing a note to Schwartz. Schwartz read the note and purportedly handed it to Herndon. Id. “The note indicated that Vazana had been found shot to death in his residence.” Id. Healy left the room again. Id. at 7 (Page ID #7493).4
Schwartz apparently “attempted to have Herndon make a tape-recorded statement implicating [] Watkins.” Id. But Herndon allegedly changed his tune for a third time:
Herndon specifically told S[chwartz] that his earlier statement about Ledura Watkins‘[s] involvement was not true. Herndon told S[chwartz] that Vazana drove Herndon to Yvette Ingram‘s house and robbed and killed her, with Vazana shooting Ingram twice in the head while she was on her bed. Herndon specifically told S[chwartz] that Watkins was not involved in the Yvette Ingram murder.
Id. Schwartz then reportedly joined Healy outside the interrogation room, where “H[ealy] and S[chwartz] conspired and agreed to frame [Watkins] by fabricating evidence that Herndon and Watkins killed Yvette Ingram.” Id.5 Healy and Schwartz allegedly returned to the interrogation room, where the following apparently transpired:
H[ealy] told Herndon that he and S[chwartz] wanted Ledura Watkins for the Ingram murder because they believed he was involved and that he likely murdered Gary Vazana. [] Herndon again told H[ealy] and S[chwartz] that Watkins had nothing to do with the murder, and that Herndon and Vazana killed Ingram. H[ealy] and S[chwartz] threatened Herndon that they would charge Herndon with the Ingram murder unless he implicated Watkins in the murder. H[ealy] stated he would grant Herndon immunity if he testified against Watkins. [] H[ealy] and S[chwartz] also threatened to charge Herndon with the recent murder of Jr. Cunningham, as Herndon was the last individual who was seen with Cunningham before his murder.
Id. at 7–8 (Page ID #7493–94). Herndon—who purportedly “bore a grudge against Watkins and believed that Watkins had recently fired shots at Herndon while Herndon was out of jail on bond“—acceded. Id. at 8 (Page ID #7494). Schwartz tape-recorded Herndon, who “implicated Watkins in Yvette Ingram‘s murder[,]” id., and narrated how he and Watkins robbed and killed Ingram on Vazana‘s orders, R. 34-8 (Taped Statement at 2–3) (Page ID #7973–74).
On October 22, 1975, Schwartz filed a warrant request for Watkins with the Wayne County Prosecutor‘s Office. R. 30 (Am. Compl. at 10) (Page ID #7496); R. 34-9 (Warrant Req. at 2) (Page ID #7982). Herndon‘s tape-recorded statement was the “sole basis for probable cause for Watkins‘[s] arrest and continued detention, as there was no other evidence linking Watkins to the crime.” R. 30 (Am. Compl. at 9) (Page ID #7495).6 Watkins was arrested that same day. Id. at 11 (Page ID #7497).
Watkins‘s trial commenced on March 8, 1976. Consistent with his tape-recorded statement, Herndon testified that both he and Watkins killed Ingram. Id. at 13–15 (Page ID #7499–501); R. 34-16 (Trial Tr. Part 1 at 379–584) (Page ID #8161–8365). DPD evidence technician Ronald Badaczewski testified that a single hair on Ingram‘s pants “could” have a “common origin” with a sample supposedly taken from Watkins.7 R. 30 (Am. Compl. at 15–16) (Page ID #7501–02); R. 34-16 (Trial Tr. Part 2 at 669–814) (Page ID #8420–544). Herndon supplied the sole eyewitness testimony that implicated Watkins in Ingram‘s murder, and the lone hair was the only physical evidence linking Watkins to the scene of the crime. R. 30 (Am. Compl. at 15) (Page ID #7501).8 Watkins was convicted of first-degree murder on March 16, 1976 and sentenced to life in prison without the possibility of parole. Id. at 18–19 (Page ID #7504–05); R. 34-17 (Jury
Herndon repeatedly recanted his testimony in affidavits, letters, and at evidentiary hearings.9 But Watkins‘s many appeals and post-conviction proceedings10 yielded no relief until this millennium. On January 19, 2017, Watkins filed a successive motion for relief from judgment with the state trial court, which included an affidavit from a forensic hair-analysis expert that challenged Badaczewski‘s testimony and hair analysis.11 R. 34-48 (2017 Mot. at 1–3) (Page ID #9181–83); R. 30 (Am. Compl. at 24) (Page ID #7510). The Wayne County Prosecutor‘s Office moved to dismiss Watkins‘s case without prejudice.12 R. 34-49 (Stip. Order at 1–3) (Page
On December 6, 2017, Watkins filed suit pursuant to
- Count I: fabrication of evidence in violation of the Fourth Amendment, R. 30 (Am. Compl. at 28) (Page ID #7514);
- Count II: fabrication of evidence in violation of the Fourteenth Amendment, id. at 30 (Page ID #7516);
- Count III: malicious prosecution in violation of the Fourth Amendment, id. at 31 (Page ID #7517);
- Count VIII: civil conspiracy in violation of the Fourth Amendment, id. at 43 (Page ID #7529);
- Count IX: civil conspiracy in violation of the Fourteenth Amendment, id. at 44 (Page ID #7530);
- Count XV: common law malicious prosecution, id. at 56 (Page ID #7542).
His complaint also included a variety of state and federal claims against the other defendants.
In January 2019, Healy moved to dismiss Watkins‘s amended complaint pursuant to
II. DISCUSSION
A. Jurisdiction
Healy raises six issues on appeal: (1) whether the applicable three-year statute of limitations bars Watkins‘s constitutional claims; (2) whether absolute immunity insulates Healy from Watkins‘s constitutional and common law claims; (3) whether the criminal proceedings terminated in favor of Watkins for his
The parties have approached jurisdiction rather haphazardly. Neither Healy nor Watkins contested jurisdiction in their briefs.17 After we pressed the issue at oral argument, Healy‘s counsel protested that this court does have appellate jurisdiction to consider all six of Healy‘s arguments. Watkins‘s counsel then expressed for the first time that this court has appellate jurisdiction over only the issue of absolute immunity (Issue #2). Healy‘s counsel replied that this court at least maintains appellate jurisdiction over both absolute immunity and the question of favorable termination (Issues #3 and #4). Healy subsequently submitted to this court a Federal Rule of Appellate Procedure 28(j) letter, in which he advanced for the first time that this court should exert pendent appellate jurisdiction to consider the statute-of-limitations issue (Issue #1). No. 20-1074, R. 44 (28(j) Letter at 2).
Notwithstanding the parties’ scattered jurisdictional arguments, we must satisfy ourselves that we have appellate jurisdiction. See Innovation Ventures, LLC v. Custom Nutrition Labs., LLC, 912 F.3d 316, 327 (6th Cir. 2018). Thus, we address whether we have appellate jurisdiction to review Healy‘s six issues per the collateral-order doctrine or via our pendent appellate jurisdiction.
Title
One such collateral determination is a district court‘s denial of a defendant‘s motion for dismissal or summary judgment on the grounds of absolute immunity or qualified immunity “to the extent that it turns on an issue of law[.]” Forsyth, 472 U.S. at 525–30; see also Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982). “[T]his exception is a narrow one. A denial of a claim of qualified immunity is immediately appealable only if the appeal is premised not on a factual dispute, but rather on neat ‘abstract issues of law.‘” Hart, 973 F.3d at 635 (quoting Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008)) (alteration in original). The prosecutorial-immunity issues here (Issue #2) implicate a “purely legal” question, Forsyth, 472 U.S. at 530, specifically whether the Court‘s prosecutorial-immunity jurisprudence applies retroactively to the events underlying Watkins‘s suit, see § II.B.3., infra. The collateral-order doctrine also allows us to consider whether Healy has satisfied his burden under
The collateral-order doctrine does not permit us, however, to consider Healy‘s
In his
[to extend the doctrine] could be based on particular circumstances in the case.” Id.; see also Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1542 (6th Cir. 1994). Wary that Healy seeks “to parlay [a] Cohen-type collateral order[] into [a] multi-issue interlocutory appeal ticket[,]” we invoke our discretion and decline to exercise our pendent appellate jurisdiction over any of his five other issues. Swint v. Chambers Cnty. Comm‘n, 514 U.S. 35, 49–50 (1995).
Healy‘s letter correctly points out that the D.C. Circuit has held and the Tenth Circuit has suggested that pendent appellate jurisdiction permits review of an otherwise unappealable statute-of-limitations defense in other contexts. See Rendall-Speranza v. Nassim, 107 F.3d 913, 917 (D.C. Cir. 1997); Wilkins v. DeReyes, 528 F.3d 790, 796 (10th Cir. 2008). Because the courts of appeals have set their own standards for when pendent appellate jurisdiction is appropriate, other circuits’ decisions are less persuasive here than they are in other contexts.20 We, and only we, decide
Accordingly, we consider only one of Healy‘s issues—whether his alleged actions are shielded by absolute immunity.
B. Absolute Immunity
Healy argues that he is entitled to absolute immunity regarding Watkins‘s constitutional and common-law claims. See Appellant‘s Br. at 39. Taking Watkins‘s plausible allegations in his amended complaint as true, we conclude that Healy is not entitled to absolute immunity.
1. Standard of Review
We review de novo a district court‘s denial of a
2. Advocacy Versus Investigation
Because “Michigan courts have recognized a common-law prosecutorial immunity that closely tracks the absolute
process[,]” but declined to reach the question of whether absolute immunity is accorded to “those aspects of the prosecutor‘s responsibility
In the decades following Imbler, the Court “revisited and refined” its prosecutorial immunity jurisprudence. Rouse v. Stacy, 478 F. App‘x 945, 947 (6th Cir. 2012); see, e.g., Burns, 500 U.S. at 486, 495 (acknowledging “the functional approach to immunity employed in Imbler” and “inquir[ing as to] whether the prosecutor‘s actions are closely associated with the judicial process[]“). One such instance is Buckley v. Fitzsimmons, 509 U.S. 259 (1993), where the Court clarified that the key to an absolute immunity inquiry is “the nature of the function performed, not the identity of the actor who performed it[,]” id. at 269 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). In Buckley, the Court addressed the question that it had declined to reach in Imbler. The Court reiterated that acts undertaken by a prosecutor “in his role as advocate for the State“—involving “actions preliminary to the initiation of a prosecution and actions apart from the courtroom“—are accorded absolute immunity. Buckley, 509 U.S. at 272 (quoting Imbler, 424 U.S. at 431 n.33). “[But] when a prosecutor ‘functions as an administrator rather than as an officer of the court’ he is entitled only to qualified immunity.” Id. at 273 (quoting Imbler, 424 U.S. at 431 n.33).
Decades of clarification have produced sundry examples of prosecutorial actions that fall on both sides of the advocacy-investigation border. Prosecutors function as advocates—and are thus protected by absolute immunity—when “knowingly us[ing] false testimony and suppress[ing] material evidence[,]” Imbler, 424 U.S. at 413; “evaluating evidence and interviewing witnesses as he prepares for trial,” Buckley, 509 U.S. at 273; “participat[ing] in a probable cause hearing,” Burns, 500 U.S. at 487; “prepar[ing] and filing . . . the information and the motion for an arrest warrant[,]” Kalina v. Fletcher, 522 U.S. 118, 129 (1997); or “making statements at a preliminary examination about the availability of a witness,” Adams v. Hanson, 656 F.3d 397, 399 (6th Cir. 2011). Prosecutors act as investigators and are entitled at most to only qualified immunity when giving “legal advice to the police[,]” Burns, 500 U.S. at 487, 496,
including “g[iving] legal advice prior to the existence of probable cause and prior to [the prosecutor‘s] determination that she would initiate criminal proceedings against [a defendant,]” Prince, 198 F.3d at 614–15; “fabricat[ing] [] false evidence” before “a special grand jury was empaneled[,]” Buckley, 509 U.S. at 275; and “directing the [police‘s] investigation, advising the [police] regarding the legality of the [products seized from defendants], and propelling the officers to execute [an operation to seize products]” “prior to the initiation of judicial proceedings and without probable cause[,]” Rieves v. Town of Smyrna, 959 F.3d 678, 692 (6th Cir. 2020). The Court has “emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question[,]” Burns, 500 U.S. at 486, and is “quite sparing” in granting absolute immunity, Buckley, 509 U.S. at 269 (quoting Forrester, 484 U.S. at 224).
Watkins alleges that Healy committed four acts inside, or right outside, Herndon‘s interrogation room, all of which could implicate the doctrine of absolute immunity. First, Healy allegedly threatened to charge Herndon with two murders, even though Herndon had told Healy that Watkins was not involved in Ingram‘s murder. R. 30 (Am. Compl. at 28) (Page ID #7514). Second, Healy apparently promised Herndon immunity for testifying at Watkins‘s trial, notwithstanding Herndon‘s statements regarding Watkins‘s lack of involvement in the Ingram murder. Id. Third, Healy purportedly “assist[ed] with the interrogation of Herndon.” Id. at 29 (Page ID #7515).21 Fourth, Healy supposedly conspired with Schwartz to “intimidat[e] and coerc[e] Travis Herndon into falsely implicating Watkins.” Id. at 43–44 (Page ID #7529–30).
Absolute immunity protects none of these four acts. Healy purportedly questioned and threatened a witness during an interrogation that took place in the midst of the investigation into Ingram‘s murder. All four of Healy‘s alleged actions occurred before any probable cause hearing, see Buckley, 509 U.S. at 275; cf. Burns, 500 U.S. at 487; before any arrest warrant was
sought, cf. Kalina, 522 U.S. at 129; or before a grand jury was convened, see Buckley, 509 U.S. at 275. By interrogating Herndon—and allegedly threatening Herndon during said interrogation—Healy was not performing “the advocate‘s role [of] evaluating evidence and interviewing witnesses as he prepares for trial“; he was performing “the detective‘s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested.” Buckley, 509 U.S. at 273 (emphases added).22 Healy‘s four actions were completely divorced from “the judicial phase of the criminal process.” See Imbler, 424 U.S. at 430. In short, “[p]rosecutors who supervise and participate in unconstitutional police interrogations of a criminal suspect are not entitled to absolute immunity.” Wendrow v. Mich. Dep‘t of Human Servs., 534 F. App‘x 516, 527 (6th Cir. 2013); see also Fields v. Wharrie, 740 F.3d 1107, 1113 (7th Cir. 2014) (refusing to “bless [the] breathtaking injustice” of a “[p]rosecutor, acting pre-prosecution as an investigator,
Healy argues that a prosecutor ceases to be an investigator and starts acting like an advocate when the “prosecutor speak[s] with an accomplice/witness after that individual had already implicated someone in a murder to a detective.” Appellant‘s Br. at 46. Here, contends Healy, Herndon had already implicated Watkins before Healy and Schwartz apparently threatened Herndon. Id. But erecting Healy‘s suggested barrier between investigation and advocacy would impermissibly contradict the Supreme Court. In Buckley, the Court concluded that “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274. “Of course,” the Court continued, “a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination, . . . a prosecutor may engage in ‘police investigative work’ that is entitled to only qualified immunity.” Id. at 274 n.5.
In other words, the Buckley Court made clear that a prosecutor acts only as an investigator and not an advocate before probable cause surfaces and may act as either investigator or advocate after probable cause arises. Because an individual who implicates someone in a murder does not necessarily generate probable cause, Healy‘s suggested bright-line rule would radically dislocate the Court‘s thoughtful consideration of when investigation may cease and advocacy might begin. Instead, a straightforward application of Buckley is merited. Here, Watkins plausibly alleges that Herndon‘s taped statement, which Healy allegedly helped procure, was the
Even if Herndon‘s two initial statements—which implicated Watkins—generated probable cause before Schwartz tape-recorded Herndon, Buckley dictates that this would not automatically transform Healy from investigator to advocate. Wendrow v. Michigan Department of Human Services is illustrative. In Wendrow, we denied absolute immunity to two prosecutors who interviewed a suspect before the suspect‘s parent was arrested. 534 F. App‘x at 527. Even
though the interview “took place after probable cause to arrest [the parent] was established and in preparation for court proceedings[,]” we rejected the prosecutors’ position “that they were merely interviewing witnesses as part of their preparation for trial” and that “gathering new information does not transform their function into that of investigation.” Id. Consistent with Buckley, we once again reject any bright-line rules that would suggest that a prosecutor automatically passes from the realm of investigation to the world of advocacy as soon as a witness implicates someone or when probable cause arises.24
3. Retroactivity
Healy falls back on an equity-laden retroactivity argument. He urges that we apply only Imbler, a 1976 decision, and not Buckley, a 1993 decision. See Appellant‘s Br. at 43. Healy protests that “Healy‘s actions in connection with the prosecution of Watkins in 1975 and 1976 were protected by immunity at the time he performed his duties” and that “[i]t is unfair to evaluate his actions in light of precedent established 17–18 years after he took them.” Id. According to Healy, “the standards of prosecutorial immunity in effect in 1975–76 should apply and would have immunized him from Watkins‘[s]
Healy‘s backward-looking approach flies in the face of the Supreme Court‘s retroactivity rule for civil cases. In Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), the Supreme Court addressed the “precise extent to which the presumptively retroactive effect of this Court‘s decisions may be altered in civil cases.” Id. at 96. Citing its earlier plurality decision in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), the Court held that:
When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive
effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.
Applying Beam and Harper to Buckley is straightforward. Absolute immunity is a
By beseeching us to consider whether it is “fair” to hold him to modern standards of prosecutorial immunity, Healy asks us to flout the Court‘s “ban against selective application of new rules.” Harper, 509 U.S. at 97 (internal quotation marks omitted). We have “no more constitutional authority in civil cases than in criminal cases to disregard current law,” and “[i]n both civil and criminal cases, we can scarcely permit the substantive law to shift and spring according to the particular equities of individual parties’ claims of actual reliance on an old rule and of harm from a retroactive application of the new rule.” Id. (alterations and internal quotation marks omitted); see also Pollard v. State Farm Fire & Cas. Nat‘l Union Fire Ins. Co., 122 F. App‘x 837, 842 (6th Cir. 2005) (rejecting argument that litigants’ reliance interests on old
precedent should prevent court from applying new Supreme Court decision retroactively pursuant to Harper).
Even if we were to consider Healy‘s equitable contentions, “the standards of prosecutorial immunity in effect in 1975–76” in no way aid Healy‘s appeal. Appellant‘s Br. at 39. The law that existed in the Sixth Circuit during this period was identical to Buckley. In Imbler, the Court acknowledged that several courts of appeals had “h[e]ld that a prosecutor engaged in certain investigative activities enjoys, not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman‘s.” Imbler, 424 U.S. at 430 & n.31 (collecting cases). The Court concluded that it “ha[d] no occasion to consider” these courts of appeals’ decisions. Id. at 430. Relevant here is our decision Hilliard v. Williams, 465 F.2d 1212 (6th Cir. 1972) [hereinafter Hilliard I], which Justice White examined in his Imbler concurrence, Imbler, 424 U.S. at 443 (White, J., concurring). The Hilliard I court held that a prosecutor‘s “deliberate suppression” of exculpatory evidence was “beyond the scope of duties constituting an integral part of the judicial process.” Hilliard I, 465 F.2d at 1218 (internal quotation marks omitted). This is essentially Buckley‘s holding. Thus, even without Buckley, Healy‘s actions would not benefit from absolute immunity in light of Hilliard I.
C. Qualified Immunity
Pursuant to the Imbler and Buckley line of cases, Healy is at most entitled to qualified immunity for his alleged actions. But Healy failed to raise a qualified-immunity argument to the district court or in his brief before us; he has thus forfeited the issue at this stage of the case.
In his
Healy cites boilerplate law related to the doctrine of qualified immunity. But the arguments that Healy makes under this section of his motion relate solely to absolute immunity, not qualified immunity. Healy has not developed any argument in his pending motion to dismiss that he is entitled to qualified immunity, and he has not provided the Court any basis to conclude that he is entitled to qualified immunity. To the extent that Healy believes that he may be entitled to qualified immunity, he may raise that argument on summary judgment.
Watkins, 2019 WL 3777631, at *9 n.8. In a footnote in his motion for reconsideration, Healy mentioned qualified immunity just one time: “The reason why APA Healy framed this in the amended motion to dismiss as ‘absolute and/or qualified immunity’ is because it is not clear how the two doctrines interact when there is an argument that an individual would not have been on notice whether absolute immunity would apply to particular conduct.” R. 49 (Mot. Reconsider at 12 n.5) (Page ID #10098). Based on this footnote, the district court—in its opinion denying reconsideration—found that Healy “appears to contend, in other words, that he is entitled to qualified immunity[.]” Watkins, 429 F. Supp. 3d at 440. The court still rejected qualified immunity as a basis to dismiss Watkins‘s suit. Id. at 440–41.
On appeal, Healy‘s brief includes sparse references to the policies behind qualified immunity in a section titled “Applying Later Standards of Prosecutorial Immunity Is Unfair To a Prosecutor Who Would Have Relied on Its Protections in Performing His or Her Duties[,]” in
which Healy argues that “nothing in Imbler or in any binding precedent in this Circuit would have put APA Healy on notice that
By failing properly to assert qualified immunity in his
The rule that we “would typically consider” an issue omitted from a brief to be waived or forfeited is “not jurisdictional, and [we] may choose to entertain arguments not raised by the parties when the failure to do so would constitute a miscarriage of justice.” Dorris v. Absher, 179 F.3d 420, 425 (6th Cir. 1999). But no miscarriage of justice would occur by applying forfeiture principles and declining
[I]t is generally inappropriate for a district court to grant a
12(b)(6) motion to dismiss on the basis of qualified immunity. Although an officer‘s entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal underRule 12 . It is often perilous to resolve aRule 12(b)(6) motion on qualified immunity grounds because development of the factual record is frequently necessary to decide whether the official‘s actions violated clearly established law.
Hart, 973 F.3d at 635 (citations, alterations, and quotation marks omitted). In sum, Healy has forfeited the issue of qualified immunity at this stage of the proceedings. Should Healy raise qualified immunity in a motion for summary judgment, as the district court suggests, that would be the more appropriate time for this court to address that issue.
III. CONCLUSION
In sum, Healy is not entitled to absolute immunity for Watkins‘s claims of constitutional and common law malicious prosecution and falsification of evidence, and Healy has forfeited the issue of qualified immunity at this stage of the litigation. We affirm the denial of absolute immunity to Healy and remand for further proceedings consistent with this opinion.