RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0349p.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
X[End Page ]
KIMBERLY SYKES, TEVYA GRACE
[End Page ]
,[End Page 2118]
>[End Page ]
[End Page ]
DERRICK ANDERSON, CAROL NICHOLS,
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
Nos. 05-71199; 05-73725?Nancy G. Edmunds, District Judge.
Argued: April 29, 2010
Decided and Filed: November 9, 2010
Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.*
ARGUED: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit,
Michigan, for Appellants. Mark Granzotto, MARK GRANZOTTO, P.C., Royal Oak,
Michigan, for Appellees ON BRIEF: Linda D. Fegins, CITY OF DETROIT LAW
DEPARTMENT, Detroit, Michigan, for Appellants. Mark Granzotto, MARK
GRANZOTTO, P.C., Royal Oak, Michigan, Julie H. Hurwitz, GOODMAN &
HURWITZ, P.C., Detroit, Michigan, Thomas M. Loeb, LAW OFFICE OF THOMAS
M. LOEB, Farmington Hills, Michigan, for Appellees.
The Honorable Thomas B. Russell, Chief United States District Judge for the Western District
of Kentucky, sitting by designation.
[End Page 1]
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 2
KAREN NELSON MOORE, Circuit Judge. In 2004, the Michigan Court of
Appeals overturned Kimberly Sykes's and Tevya Urquhart's convictions for the state
crimes of ?Larceny by Conversion? and ?False Report of a Felony? on the grounds that
their convictions were based on mere ?speculation? and ?layers of impermissible
inferences.? After their release from prison, Sykes and Urquhart (?the Plaintiffs?)
brought 42 U.S.C. Â§ 1983 actions against several Detroit police officers, asserting claims
of false imprisonment, malicious prosecution, and denial of due process. The Plaintiffs
also brought suit against the City of Detroit on the grounds that the City failed to respond
to citizen complaints and failed to train and supervise its employees. The district court
dismissed the claims against the City of Detroit prior to trial but submitted the remaining
claims to the jury. Ultimately, the jury returned a verdict in favor of the Plaintiffs on
three claims against two individual officers (?the Defendants?) and awarded the
Plaintiffs over $2.5 million in compensatory and punitive damages. The Defendants now
contest the district court's denial of their motion for judgment as a matter of law and
appeal the damage award.
For the following reasons, we AFFIRM the judgment of the district court as to
the Plaintiffs? claims of false arrest, malicious prosecution, and violations of due
process; we REMAND the case for the sole purpose of having the district court
articulate, in the first instance, an explanation for its denial of the Defendants? motion
for remittitur; and we HOLD IN ABEYANCE the Plaintiffs? cross-appeals in Case
Numbers 08-2090 and 08-2118, pending our review of the district court's explanation
for the denial of the Defendants? motion for remittitur.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 3
I. FACTS & PROCEDURE
A. Background Facts
On March 7, 2002, Sykes, Urquhart, and a third individual, Kimberly Holmes,
arrived at their place of employment, a Sprint PCS store, in Detroit, Michigan shortly
before 8:00 a.m. in order to open the store for business. As Urquhart disabled the alarm
and the three women entered the store, two men approached and forced their way into
the store's foyer despite Sykes's and Urquhart's attempt to close and lock the door
behind them. Once inside, one of the men told the women to ?shut the F up before somebody get[s] shot? and revealed a gun that he had been concealing under his shirt.
Dist. Ct. Docket (?Doc.?) 256 (Urquhart Trial Test. at 151?52). The two men then
marched the women at gun point through the employee door to the back of the store
where they were ordered to lie on the floor. Urquhart testified that one of the robbers
?proceeded to say [that] one of [them] better get the F up and open up the safe door.?
Doc. 257 (Urquhart Trial Test. at 21). Urquhart, who was three months pregnant at the
time, was the only one who had the combination to open the safe. She was led at
gunpoint to the room where the safe was located and was ordered to enter the room and
remove the money contained inside the safe. In compliance with the armed robber?s
demand, Urquhart crossed the small room to the safe, ?pulled out a money bag and  slid
it across [the floor] to the man at the door.? Id. at 23. Retrieving the money bag, the
armed man then ordered Urquhart to ?shut up and get back on the ground,? threatened
to ?come back and shoot? the women if they tried to do anything, and closed the door
as he left. Id. at 26. The two robbers fled with approximately $27,000.
Within minutes of the perpetrators? exit, Holmes and Sykes approached the room
containing the safe to check on Urquhart. When Urquhart rose from the floor to let
Holmes and Sykes into the safe room, she was hysterical and crying uncontrollably.
Sykes immediately called the police on her cellular phone. Still fearing that the robbers
would return, the women decided to ?barricade? themselves ?under the table? in the safe
room and wait for help. Id. at 33. During the ten-minute period that the women waited
for the police to arrive, Urquhart remained inconsolable. At one point, she briefly
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 4
emerged from under the table, crawling a few feet to a trash receptacle positioned next
to the safe where she proceeded to spit up into the trash. Holmes also emerged from
under the ?safe haven? of the table sometime after Urquhart returned, crawled to the safe, opened the door, took out the remaining money bag, and then returned the money
bag to the safe. Id. Images of the robbery were captured on the store's surveillance
cameras with the exception of several dead spots, i.e., locations that were outside of the
cameras? view, which included the hallway where the women initially were forced to lie
down and the space underneath the table in the safe room.
When officers from the Detroit Police Department arrived on the scene,
Defendant Sergeant Carol Nichols, the officer in charge, and Officer Terrence Sims
began taking witness statements. Urquhart became increasingly agitated and extremely
emotional when Sgt. Nichols attempted to interview her in the room where the robbery
had just occurred and with the door closed. Sgt. Nichols testified that she found
Urquhart's agitation suspicious and believed her to be ??full of crap,?? Doc. 260 (Nichols
Trial Test. at 45) (quoting Nichols's deposition), although Sgt. Nichols did recognize
that the interview took place in the same room where the pregnant Urquhart was held at
gunpoint less than two hours earlier. Urquhart ultimately required medical treatment at
the scene. Following Sgt. Nichols's conversation with Urquhart, Urquhart signed a
written witness statement that Sgt. Nichols had drafted, providing Urquhart's account
of the robbery. Both Sykes and Holmes also provided statements to the police at the scene, and, as with Urquhart, Sgt. Nichols found Sykes's statement suspicious, albeit for
ever-changing reasons. Sgt. Nichols and Officer Sims also interviewed the store?s
Assistant Manager, Deshawn Mallory, who confirmed that he had placed two money
bags in the safe the previous evening and that only one of them was missing.
During the ensuing police investigation, Sgt. Nichols began to suspect that the
robbery was an inside job and that the three women had staged the crime. In addition
to finding suspicious both Urquhart's agitation at being interviewed and Sykes's witness statement, Sgt. Nichols also had uncovered that Holmes was a frequent gambler at a
local casino, which possibly supplied a motive. On March 11, 2002, Sgt. Nichols
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 5
prepared a subpoena to serve on MotorCity Casino (?Casino?). Ten days later, on March
21, 2002, the Casino faxed to Sgt. Nichols's attention at the police station Holmes?s
gaming records for the three days immediately following the robbery: March 8, March
9, and March 10. Those records indicated that Holmes's ?player's card? was used to
gamble $23,116 at the Casino over those three days. Importantly, however, the Casino
cautioned in a disclaimer letter included with the gaming records that the amount of
money wagered with a player's card was not reliable as to (1) the amount of money
wagered or (2) the identity of the gambler. The Casino further disclosed that the records
were estimates developed for marketing purposes and ?would not establish in any
reliable manner the dates of attendance, gambling activities, or winnings or losses of a
player.? Doc. 231-7 (Casino Letter at 2).
Sgt. Nichols never received the Casino records because she had been replaced
as the officer in charge by Defendant Sergeant Derrick Anderson. It was thus Sgt.
Anderson who retrieved the fax. Despite the disclaimer letter on the front of the records stating explicitly that the gaming records neither confirmed that Holmes had wagered
the amount listed nor that Holmes was actually even present at the Casino, Sgt.
Anderson conducted no further investigation. As the new officer in charge, Sgt.
Anderson and his partner, Police Investigator Maurice McClure, obtained the original
VHS video-surveillance tape from the Sprint PCS store and digitized the tape with the
help of the Michigan State Police Technical Services Unit so that the images could be
viewed in sequence.1 According to Sgt. Anderson, he viewed the tape numerous times.
Based on the evidence that both he and Sgt. Nichols had gathered, on April 27,
2002, Sgt. Anderson prepared an Investigator's Report and sought authorization for an
arrest warrant for Sykes, Urquhart, and Holmes from Assistant Prosecuting Attorney,
Rita H. Lewis, at the Wayne County Prosecutor's Office. In addition to his written
report detailing his investigation, Sgt. Anderson also submitted to Lewis the digitized
The Sprint PCS store's security system is referred to as a ?multiplex? time-lapse system. In
essence, multiple cameras placed throughout the store take various still photographs within seconds of each
other but do not record continuously, as a normal video camera would do. The tape must be
?demultiplexed? in order to view a continuous stream of ordered images.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 6
surveillance tape from the Sprint PCS store, all of the witness statements, the
Preliminary Complaint Report (?PCR?), and a list of potential witnesses. No one else
in the Detroit Police Department reviewed Sgt. Anderson's request prior to its submission to Lewis, thereby allowing to go undetected several flagrant
misrepresentations, exaggerations, and omissions of evidence that were key to
determining whether probable cause existed to believe that the Plaintiffs had committed
any crime. Lewis authorized the issuance of warrants for all three women, charging
them with ?Larceny by Conversion? and ?False Report of a Felony.? In her notes on
why probable cause existed to arrest and charge the women, Lewis reproduced several
of Sgt. Anderson's misrepresentations of the evidence.
Armed with arrest warrants, Sgt. Anderson and Officer McClure arrested Sykes
at her home on May 11, 2002. Following Sykes's arrest, Urquhart, now five-months
pregnant, turned herself in to the police. A state court conducted a preliminary
examination for Urquhart and Sykes on July 19 and July 23, 2002, at which time the state court determined that probable cause existed to bind the Plaintiffs over for trial.
Sgt. Nichols was the only officer to testify at the hearing, and her testimony contained
at least two false statements that bore upon whether there was sufficient evidence to
prosecute. Urquhart and Sykes's case proceeded to trial before a jury on October 7,
2002, during which both Sgt. Nichols and Sgt. Anderson testified on behalf of the State.
Because the prosecution's principal theory of the case relied heavily on Holmes?s
gambling habit, the State called Sgt. Anderson to testify about the gaming records that
he had received from the Casino. Troublingly, Sgt. Anderson had failed to turn over the
gaming records to the Plaintiffs? defense attorneys. Sgt. Anderson also never
revealed?to either the prosecution or the defense?that the gaming records had been
accompanied by a disclaimer letter, and in direct conflict with that letter, Sgt. Anderson
testified that the records established conclusively that Holmes had gambled
approximately the same amount of money taken in the robbery in the three days
following the robbery.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 7
A jury ultimately convicted Sykes and Urquhart on both counts. Sykes was sentenced to three months in jail and three years of probation, and she was ordered to
pay restitution. People v. Sykes, No. 245079, 2004 WL 950129, at *1 (Mich. Ct. App.
May 4, 2004). Urquhart was sentenced to five months in jail on each count and three
years of probation. People v. Urquhart, No. 246001, 2004 WL 950062, at *1 (Mich. Ct.
App. May 4, 2004). Both were immediately imprisoned. More than one year after the
Plaintiffs? convictions, Holmes pleaded nolo contendere, received probation, and was
ordered to pay restitution. The Michigan Court of Appeals overturned the Plaintiffs?
convictions on appeal. Detailing the meager quantity of evidence, the state appellate
court held that the convictions were not supported by anything other than mere
?speculation? and ?impermissibly layered inferences.? Sykes, 2004 WL 950129, at *2,
*3; see Urquhart, 2004 WL 950062, at *2, *3.
B. District-Court Proceedings
Following her release from prison, Sykes filed suit in Wayne County Circuit
Court in March 2005 against six police officers involved in the investigation of the
robbery and the City of Detroit, alleging both state and federal-law violations in
connection with her arrest and prosecution. The action was removed to federal court.
Urquhart similarly filed suit in federal court in October 2005, and the cases were
consolidated. Together, the Plaintiffs alleged violations of the Fourth and Fourteenth
Amendments in light of their arrests and subsequent prosecutions, claiming that there
was an absence of probable cause. They also argued that they were denied due process
during their criminal trial because Sgt. Anderson withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83
(1963). In their claim against the City of
Detroit, the Plaintiffs asserted that the City was liable under 42 U.S.C. Â§ 1983 for its
failure properly to train, monitor, direct, discipline and supervise its officers, specifically
referring to the City's policy of having the same individual write and approve an
application for a warrant and its failure to respond adequately to citizen complaints
against its police officers.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 8
The Defendants filed their first motion for summary judgment in June 2006,
which the district court denied ?without prejudice to [the] defendants? right to seek summary judgment after [the] plaintiffs have had an opportunity to conduct full
discovery.? Doc. 48 (Dist. Ct. Order at 5). In June 2007, the Defendants filed their second motion for summary judgment. The district court denied the motion as untimely
and also held that the City's motion failed on the merits because the City could not
demonstrate an absence of material fact relative to its municipal-liability claim when it
continually refused to comply with discovery orders related thereto. In November 2007,
the case was reassigned from Judge Friedman to Judge Edmunds. Following the
reassignment, Judge Edmunds sua sponte requested that the City of Detroit refile its
motion for summary judgment on the municipal-liability issue that Judge Friedman had
denied and then granted the City of Detroit's motion for summary judgment as to all the
claims against it for failure to train or supervise its police officers and failure to respond
to citizen complaints. Extensive motion practice subsequently resulted in the dismissal
of several individually named police officers, and the case ultimately proceeded to trial
on February 5, 2008, against the following parties on the following claims: (1) Sykes?s
claim of false arrest against Sgt. Anderson,2 (2) Sykes's and Urquhart's claims of
malicious prosecution against Sgt. Anderson and Sgt. Nichols, and (3) Sykes's and
Urquhart's claims of due-process violations against Sgt. Anderson, Sgt. Nichols, and
Following trial, the jury found Sgt. Anderson liable for false arrest, malicious
prosecution, and the violation of the Plaintiffs? due-process rights. The jury found Sgt.
Nichols liable for malicious prosecution, but found in favor of Officer McClure. The
jury awarded Sykes $1,063,000 in compensatory damages and $250,000 in punitive
damages, and Urquhart received a compensatory-damage award of $1,020,000 and
$250,000 in punitive damages. On March 20, 2008, the Defendants filed a motion for
judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and for
remittitur of the jury's verdict, both of which the district court denied. The Defendants
Urquhart conceded that her claim for false arrest was time barred.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 9
timely appealed, and each Plaintiff filed a timely conditional cross-appeal challenging
the district court's grant of summary judgment in favor of the City of Detroit, as well as several of the district court's evidentiary rulings.3
On appeal, the Defendants challenge the district court's denial of their motion
for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). They specifically allege that the district court erred in rejecting their claims that (1) they were
entitled to qualified immunity, (2) insufficient evidence supported the jury's verdict as
to the false-imprisonment claim, (3) insufficient evidence supported the jury's verdict
as to the malicious-prosecution claims, (4) insufficient evidence supported the jury?s
verdict as to the claims that the Plaintiffs? due-process rights were violated as a result
of a Brady violation, (5) they were entitled to a new trial because the jury's verdict was
unsupported by the evidence, (6) insufficient evidence supported an award of punitive
damages, and (7) they were entitled to remittitur because the damages award was clearly
A. Qualified-Immunity Defense
The Defendants first argue that the district court erred in denying their Rule 50(b)
motion on qualified-immunity grounds. As the Plaintiffs correctly contend, however,
the Defendants have waived this claim by failing to raise the matter in their Rule 50(a)
motion prior to the district court's submission of the case to the jury. Federal Rule of
Civil Procedure 50(a) allows a party to bring a motion for judgment as a matter of law
?at any time before the case is submitted to the jury.? Fed. R. Civ. P. 50(a)(2). If the
district court denies that motion and the case is submitted to the jury, ?the movant may
file a renewed motion for judgment as a matter of law? within ten days after the entry
of judgment on the verdict. Id. 50(b). It is a ?well-established proposition,? however,
?that a post-trial motion for judgment as a matter of law is not available at anyone?s
request on an issue not brought before the court prior to submission of the case to the
We hold these cross-appeals in abeyance.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 10
jury.? Ford v. County of Grand Traverse, 535 F.3d 483
, 491 (6th Cir. 2008) (internal
quotation marks omitted); see also Fed. R. Civ. P. 50(b) (providing explicitly that a Rule
50(b) motion is a ?renewed? Rule 50(a) motion).
In the instant case, the Defendants moved orally for judgment as a matter of law
under Rule 50(a), prior to the case's submission to the jury, asserting only that the
evidence was insufficient to prove that the Defendants violated the Plaintiffs? Fourth and
Fourteenth Amendment rights. Although the Defendants attempt to argue on appeal that
their Rule 50(a) argument necessarily included a claim of qualified immunity because
the sufficiency of the evidence is ?inextricably intertwined? with qualified immunity, we
have rejected such an argument. See Ford, 535 F.3d at 493. Instead, in Ford v. County
of Grand Traverse, this circuit reaffirmed that while Rule 50 is not rigidly applied in all
circumstances, a pre-verdict motion and a post-verdict motion must be similar enough
to ?provid[e] notice to the court and opposing counsel of any deficiencies in the
opposing party's case prior to sending it to the jury,? thereby fulfilling the stated purpose
of the Rule. Id. at 492 (internal quotation marks omitted). Here, the Defendants? oral
Rule 50(a) motion failed to provided the required notice. The Defendants never
mentioned ?qualified immunity,? and they never referenced ?clearly established law? or
?objectively unreasonable actions,? all of which are terms that might have put the court
and the Plaintiffs on notice as to the Defendants? qualified-immunity claim.
To the extent that the instant case is distinguishable from Ford because the
Defendants did raise their qualified-immunity argument in their first unsuccessful
motion for summary judgment, that is a distinction without a difference. ?[E]ven if a
defendant raises qualified immunity at summary judgment, the issue is waived on appeal
if not pressed in a Rule 50(a) motion.? Parker v. Gerrish, 547 F.3d 1
, 12 (1st Cir. 2008); see also Fed. R. Civ. P. 50. The Defendants? failure to make a pre-verdict motion for
judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity
precluded them from making a post-verdict motion under Rule 50(b) on that ground.
The qualified-immunity claim is waived.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 11
B. Standard of Review for Rule 50(b)
Unlike their claim for qualified immunity, the Defendants have properly
preserved their claims that the district court erred in denying their Rule 50(b) motion on
the jury's findings of liability for (1) false arrest, (2) malicious prosecution, and
(3) violations of due-process related to the suppression of evidence under Brady v.
Maryland, 373 U.S. 83
We review de novo the district court's denial of the Defendants? renewed motion
for a judgment as a matter of law. Radvansky v. City of Olmsted Falls, 496 F.3d 609
614 (6th Cir. 2007). We ?apply the same deferential standard as the district court,? and
may grant the motion ?only if in viewing the evidence in the light most favorable to the
non-moving party, there is no genuine issue of material fact for the jury, and reasonable
minds could come to but one conclusion, in favor of the moving party.? Id. (internal
quotation marks omitted). We must not, in conducting our review, ?reweigh the
evidence or assess the credibility of witnesses,? id, and our review is restricted to the
evidence that was admitted at trial. 9B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure Â§ 2540 (3d ed. 2008) (?When reviewing a district court's grant
or failure to grant judgment as a matter of law, a court of appeals only may consider
evidence that was admitted at trial.?); Tschira v. Willingham, 135 F.3d 1077
, 1088 (6th
C. Unlawful-Arrest Claim
Sgt. Anderson challenges the jury's verdict as to his liability for the unlawful
arrest of Sykes by arguing that no reasonable juror could have concluded that probable
cause to arrest Sykes was lacking. We disagree. ?A false arrest claim under federal law
requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the
plaintiff.? Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669
, 677 (6th Cir. 2005); see also Brooks v. Rothe, 577 F.3d 701
, 706 (6th Cir. 2009). Because an arrest based on
a facially valid warrant approved by a magistrate provides a complete defense, Voyticky,
412 F.3d at 677, Sykes, in order to prevail on a false-arrest claim, was required to prove
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 12
by a preponderance of the evidence that in order to procure the warrant, Sgt. Anderson
?knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create[d] a falsehood? and ?such statements or omissions
[we]re material, or necessary, to the finding of probable cause.? Wilson v. Russo, 212 F.3d 781
, 786?87 (3d Cir. 2000) (internal quotation marks omitted); see Vakilian v.
Shaw, 335 F.3d 509
, 517 (6th Cir. 2003) (citing Wilson with approval and noting that in
the Â§ 1983 context ?an officer or investigator cannot rely on a judicial determination of
probable cause if that officer knowingly makes false statements and omissions to the
judge such that but for these falsities the judge would not have issued the warrant?
(internal quotation marks and alteration omitted)); Hinchman v. Moore, 312 F.3d 198
205?06 (6th Cir. 2002) (?Falsifying facts to establish probable cause to arrest and
prosecute an innocent person is of course patently unconstitutional?). If the affidavit
contains false statements or material omissions, we set aside the statements and include
the information omitted in order to determine whether the affidavit is still sufficient to
establish probable cause. Hill v. McIntyre, 884 F.2d 271
, 275 (6th Cir. 1989) (citing
Franks v. Delaware, 438 U.S. 154
, 155?56 (1978)); Burleigh v. City of Detroit, 80 F.
App?x 454, 458 (6th Cir. 2003) (unpublished opinion) (?This alleged exaggeration of the
facts need not detain us, however, if other undisputed facts support the state court?s
probable cause determination.?); cf. United States v. Campbell, 878 F.2d 170
, 171 (6th
??Probable cause is defined as reasonable grounds for belief, supported by less
than prima facie proof but more than mere suspicion.?? United States v. McClain, 444 F.3d 556
, 562 (6th Cir. 2005) (quoting United States v. Ferguson, 8 F.3d 385
, 392 (6th
Cir. 1993) (en banc)). To determine whether Sgt. Anderson had probable cause to arrest
Sykes, we consider the totality of the circumstances and whether the ?facts and
circumstances? of which Sgt. Anderson had knowledge at the moment of the arrest were
?sufficient to warrant a prudent person . . . in believing . . . that? the seized individual
?ha[d] committed . . . an offense.? Hinchman, 312 F.3d at 204 (internal quotation marks
omitted). ?The belief of guilt must be particularized with respect to the person to be . . .
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 13
seized.? United States v. Romero, 452 F.3d 610
, 616 (6th Cir. 2006) (internal quotation
marks and alteration omitted).
In the instant case, a reasonable jury could have concluded that the evidence
introduced at trial showed that Sgt. Anderson deliberately made false or misleading statements and omitted material information from his warrant application in order to
manufacture probable cause. Most strikingly, Sgt. Anderson's warrant request made several assertions as to what the store's surveillance video revealed about the robbery
that were plainly misleading, if not entirely false. For example, Sgt. Anderson asserted
that although Urquhart ?stated that she handed the perpetrator? a money bag from the safe, she did not, in fact, ?hand? the money bag ?to the perpetrator.? Doc. 231-16
(Warrant Request at 3). Sgt. Anderson also claimed that ?[t]he videotape . . . revealed
that Ms. Urquhart never had contact with the perpetrator in the safe room or at any time
during the robbery.? Id. Although those statements are not obviously false, they
certainly are misleading: the video shows Urquhart engage in movements indicating that she ?slid,? as opposed to ?handed,? the money bag to the perpetrator, which Sgt.
Anderson did not acknowledge in his investigation materials; moreover, despite the fact
that the perpetrator never made physical ?contact? with Urquhart, the video clearly shows him standing in the doorway while Urquhart was forced to remove the money
In addition to these misleading statements, some of Sgt. Anderson's claims were simply false. For instance, although the warrant request stated that ?Holmes was . . .
observed to remove [one] large money bag from the safe and toss it under the table
where [the] defendant's [sic] Urquhart and Sykes were hiding? and that ?Urquhart was
also observed to exit from under the table and place an item (possibly the money bag)
into the trashcan,? the video shows no such thing. Id. First, the video does not show
Holmes tossing anything under the table, let alone a bag of money, and, second, Sgt.
Anderson inexplicably misrepresented the chronological order of the video by stating
that Urquhart emerged from under the table to put something in the trash can after
Holmes had removed the money bag from the safe. In fact, however, the video time
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 14
stamps indicate that Urquhart emerged from under the table and crawled to the trash can
well before Holmes opened the safe.
In addition to making these material misstatements, Sgt. Anderson inexplicably
omitted perhaps the most probative evidence as to whether a robbery occurred?the
presence of the two armed men. His notes make no mention of the fact that the
videotape surveillance shows two men entering the store, thus corroborating Urquhart?s
and Sykes's statements and account of the robbery. Instead, Sgt. Anderson stated that
the investigation revealed that ?no robbery took place,? and that ?the defendant's [sic]
met in the parking lot . . . [to conspire] to commit larceny? prior to work and then met
?under a table in the safe room? to ?divide the funds taken from the safe . . . by
defendant Holmes.? Id. But these conclusions are simply not supported by any of the
information available to Sgt. Anderson at the time he submitted his warrant application.
Confronted with this evidence, a reasonable jury could have concluded that Sgt.
Anderson deliberately made numerous misleading, if not patently false, statements and
omitted key information from the warrant application establishing that there really was
Disregarding Sgt. Anderson's false and misleading statements and considering
his material omissions, the evidence plainly supports the jury's finding that probable
cause was lacking. At the time Sgt. Anderson submitted his investigatory report and
warrant request to Assistant Prosecuting Attorney, Rita H. Lewis, at the Wayne County
Prosecutor's Office, his investigation merely revealed the following: On the morning
of the robbery, two men entered the Sprint PCS store behind Sykes, Urquhart, and
Holmes and forced them toward the back. Although the robbers never fully entered the
room with the safe, one of them stood in the doorway and had Urquhart open the safe
and slide a money bag to him, and then ordered Urquhart to the ground. Following the
robbery, Sykes called the police on her cellular phone, and the Plaintiffs sat under a table
in the safe room, which was out of the camera's view, to wait for police. Holmes opened
the safe at some point, and removed a money bag. The video does not readily show what she did with the money bag, but witness statements taken at the scene revealed that only
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 15
one of the two money bags originally in the safe was missing, which necessitates the
conclusion that Holmes replaced the money bag that she briefly handled following the
robbery and could not have thrown it under the table. Sgt. Anderson also had discovered
that Holmes liked to gamble, and that her player's card had been used in the days
following the robbery to wager an amount that approximated the amount stolen. But he
also knew that the fact that Holmes's player's card had been used was not evidence that
Holmes, in fact, used it, or that the dollar amounts were accurate.
This evidence simply cannot support a finding of probable cause to believe that
Sykes was involved in the robbery. Her behavior was entirely consistent with being the
victim of a robbery and not incriminating in the least.4 As the Michigan Court of
Appeals aptly concluded, there is simply no particularized evidence connecting Sykes
to the robbery other than Sykes's mere presence at the scene of the crime, see Sykes,
2004 WL 950129, at *2, and mere presence is not sufficient to meet the probable-cause
threshold. Harris v. Bornhorst, 513 F.3d 503
, 515 (6th Cir.), cert. denied, 128 S. Ct. 2938
(2008) (?[I]t is well-established that an individual's mere presence at a crime scene
does not constitute probable cause for an arrest.?). Even if Sgt. Anderson was ultimately
correct in his conclusion that the robbery was an inside job, there was absolutely no
evidence indicating that Sykes herself had knowledge of the plan or otherwise
committed a crime at the time he sought his warrant. ?Speculation does not equate
probable cause,? United States v. McClain, 444 F.3d 556
, 563 (6th Cir. 2005), and ?no
reasonabl[y] competent officer? would have concluded on these facts that probable cause
existed. Malley v. Briggs, 475 U.S. 335
, 341 (1986).
In short, we affirm the judgment of the district court as to Sykes's claim of false
arrest because probable cause was lacking at the time Sgt. Anderson submitted a warrant
Although ?a subjective belief by the arresting officer cannot destroy probable cause where it
exists,? United States v. Harness, 453 F.3d 752
, 754 (6th Cir. 2006) (internal quotation marks omitted),
it is telling that the investigating officers admitted that they had nothing more than ?inarticulable hunches?
that the store employees were involved in the robbery. Doc. 260 (Nicohols Trial Test. at 60); see also Doc.
261 (McClure Trial Test. at 85) (indicating that the officers? ?conclusions [we]re just based on opinion,
hunch, whatever you want to call it and that's what was presented to the prosecutor's office?); Doc. 237
(Anderson Trial Test. at 14?15) (?[It was] just my belief.?).
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 16
application for Sykes, and Sgt. Anderson cannot rely on the warrant's facial validity
because it contains his deliberate material misrepresentations and omissions.
D. Malicious-Prosecution Claim
Sgt. Anderson and Sgt. Nichols next appeal their liability for malicious
prosecution on two bases: (1) no reasonable jury could have concluded that they lacked
probable cause to arrest the Plaintiffs, and (2) because Sgt. Anderson and Sgt. Nichols
did not make the decision to prosecute, the Plaintiffs? claims fail for lack of causation.
1. Elements of a Malicious-Prosecution Claim
The Sixth Circuit ?recognize[s] a separate constitutionally cognizable claim of
malicious prosecution under the Fourth Amendment,? which ?encompasses wrongful
investigation, prosecution, conviction, and incarceration.? Barnes v. Wright, 449 F.3d 709
, 715?16 (6th Cir. 2006) (internal quotation marks omitted). The ?tort of malicious
prosecution? is ?entirely distinct? from that of false arrest, as the malicious-prosecution
tort ?remedies detention accompanied not by absence of legal process, but by wrongful
institution of legal process.? Wallace v. Kato, 549 U.S. 384
, 390 (2007) (internal
quotation marks omitted). Neither the Supreme Court nor the Sixth Circuit has yet
articulated the elements of a Fourth Amendment malicious-prosecution claim under
42 U.S.C. Â§ 1983 with any specificity, Wallace, 549 U.S. at 390 n.2; Briner v. City of
Ontario, 370 F. App?x 682, 701 (6th Cir. 2010) (unpublished opinion), but because
exploration of the showing required under federal law is necessary to resolve the instant
case, we do so now.
To succeed on a malicious-prosecution claim under Â§ 1983 when the claim is
premised on a violation of the Fourth Amendment, a plaintiff must prove the following:
First, the plaintiff must show that a criminal prosecution was initiated against the
plaintiff and that the defendant ?ma[d]e, influence[d], or participate[d] in the decision
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 17
to prosecute.?5 Fox v. DeSoto, 489 F.3d 227
, 237 (6th Cir. 2007); see also McKinley v.
City of Mansfield, 404 F.3d 418
, 444 (6th Cir. 2005); Darrah v. City of Oak Park, 255 F.3d 301
, 312 (6th Cir. 2001); Skousen v. Brighton High Sch., 305 F.3d 520
, 529 (6th
Cir. 2002). Second, because a Â§ 1983 claim is premised on the violation of a
constitutional right, the plaintiff must show that there was a lack of probable cause for
the criminal prosecution, Fox, 489 F.3d at 237; Voyticky, 412 F.3d at 675. Third, the
plaintiff must show that, ?as a consequence of a legal proceeding,? the plaintiff suffered
a ?deprivation of liberty,? as understood in our Fourth Amendment jurisprudence, apart
from the initial seizure. Johnson v. Knorr, 477 F.3d 75
, 81 (3d Cir. 2007); see Gregory
v. City of Louisville, 444 F.3d 725
, 748?50 (6th Cir. 2006) (discussing the scope of
?Fourth Amendment protections . . . beyond an initial seizure,? including ?continued
detention without probable cause?); cf. Heck v. Humphrey, 512 U.S. 477
, 484 (1994)
(?[U]nlike the related cause of action for false arrest or imprisonment, [an action for
malicious prosecution] permits damages for confinement imposed pursuant to legal
process.?). Fourth, the criminal proceeding must have been resolved in the plaintiff?s
favor. Heck, 512 U.S. at 484 (?One element that must be alleged and proved in a
malicious prosecution action is termination of the prior criminal proceeding in favor of
This circuit has never required that a plaintiff demonstrate ?malice? in order to
prevail on a Fourth Amendment claim for malicious prosecution, and we join the Fourth
Circuit in declining to impose that requirement. See Brooks v. City of Winston-Salem,
85 F.3d 178
, 184 n.5 (4th Cir. 1996). The circuits that require malice have imported
elements from the common law without reflecting on their consistency with the
overriding constitutional nature of Â§ 1983 claims. See Manganiello v. City of New York,
612 F.3d 149
, 160?61 (2d Cir. 2010) (requiring a Fourth Amendment violation plus each
element of the applicable state's law); McKenna v. City of Philadelphia, 582 F.3d 447
461 (3d Cir. 2009) (requiring malice); Lassiter v. City of Bremerton, 556 F.3d 1049
The meaning of the term ?participated? should be construed within the context of tort causation
principles. Its meaning is akin to ?aided.? To be liable for ?participating? in the decision to prosecute,
the officer must participate in a way that aids in the decision, as opposed to passively or neutrally
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 18
1054 (9th Cir. 2009) (same); Wilkins v. DeReyes, 528 F.3d 790
, 799 (10th Cir. 2008)
(same); Grider v. City of Auburn, 618 F.3d 1240
, 1256 & n.24 (11th Cir. 2010) (same).
Common-law and Â§ 1983 claims have different foundations. As the Supreme Court
explained in Albright v. Oliver, ?the constitutional tort 42 U.S.C. Â§ 1983 authorizes stands on its own, influenced by the substance, but not tied to the formal categories and
procedures, of the common law.? 510 U.S. 266
, 277 n.1 (1994) (Ginsburg, J.,
concurring); see also Carey v. Piphus, 435 U.S. 247
, 258 (1978) (requiring courts to
?adapt common-law rules of damage? when adjudicating Â§ 1983 cases because ?the
interests protected by a particular constitutional right may not also be protected by an
analogous branch of the common law torts?); Pierce v. Gilchrist, 359 F.3d 1279
1285?90 (10th Cir. 2004) (McConnell, J.) (?rejecting the view that a plaintiff does not state a claim actionable under Â§ 1983 unless he satisfies the requirements of an
analogous common law tort?). This court recognized the difference in Frantz v. Village
of Bradford, in which we ?h[e]ld that Albright precludes reliance on state law to define
a Â§ 1983 federal cause of action? and ?reject[ed] the reasoning of courts which have
relied on the state law elements of malicious prosecution.? 245 F.3d 869
, 874?75 (6th
Cir. 2001), abrogated as recognized by Thacker v. City of Columbus, 328 F.3d 244
(6th Cir. 2003); see also Darrah, 255 F.3d at 311?12 (confirming that this language in
Frantz survived abrogation).
In the context of malicious prosecution, the Fourth Amendment violation that
generates a Â§ 1983 cause of action obviates the need for demonstrating malice. ?For
instance, if the harm alleged is a seizure lacking probable cause, it is unclear why a
plaintiff would have to show that the police acted with malice.? Gallo v. City of
Philadelphia, 161 F.3d 217
, 222 n.6 (3d Cir. 1998). In fact, Fourth Amendment
jurisprudence makes clear that we should not delve into the defendants? intent. ?[T]he
reasonableness of a seizure under the Fourth Amendment should be analyzed from an
objective perspective,? which, even in the context of malicious-prosecution claims,
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 19
renders ?irrelevant? ?the subjective state of mind of the defendant, whether good faith
or ill will.? Brooks, 85 F.3d at 184 n.5.6
We recognize that ?designating the constitutional claim as one for ?malicious
prosecution? is both unfortunate and confusing. A better name that would perhaps grasp
the essence of this cause of action under applicable Fourth Amendment principles might
be ?unreasonable prosecutorial seizure.?? Frantz, 245 F.3d at 881 (Gilman, J., dissenting
on other grounds to a holding that was abrogated by Darrah, 255 F.3d at 311?12). Still,
we are ?stuck with that label,? id., and we conclude that malice is not an element of a
Â§ 1983 suit for malicious prosecution.7
For the reasons explained below, we conclude that a reasonable jury could have
found the Defendants liable for malicious prosecution. In the instant case, there was not
only a lack of probable cause to institute a criminal proceeding against the Plaintiffs, but
the Defendants? actions in this case were sufficient to qualify as either ?influence [over]
or participat[ion] in the decision to prosecute? regardless of the fact that the Defendants,
themselves, did not make the ultimate decision. Fox, 489 F.3d at 237.
Pierce, which expressed no opinion on whether malice is an element, suggested in a footnote
that malicious-prosecution liability for falsifying or omitting evidence might attach only if an officer acts
?knowingly and intelligently, or with reckless disregard for the truth.? 359 F.3d at 1297 n.12 (quoting
Franks v. Delaware, 438 U.S. 154
, 155?56 (1978)). Franks applies only when a criminal defendant
challenges a warrant affidavit. 438 U.S. at 164?65. Its logic cannot justify a freestanding malice element
for all malicious-prosecution claims against all defendants. Moreover, in the context to which Franks does
apply, a malice-type element would be superfluous. Franks is relevant to malicious prosecution only to
determine whether, in the absence of a bad-faith misrepresentation, probable cause still would have
existed. When an officer is sued for malicious prosecution stemming from false but good-faith statements
in a warrant affidavit, the officer will prevail even without a malice element because of Franks. Thus,
Franks does not provide a reason to depart from the general Fourth Amendment principle that motive is
In this case, the jury was instructed that the Plaintiffs were required to prove that: (1) ?a criminal
proceeding was commenced against Plaintiffs,? (2) the ?Defendants commenced or continued the criminal
proceeding against Plaintiffs,? (3) ?the criminal proceeding ended in favor of Plaintiffs,? (4) ?the criminal
proceeding was commenced or continued by Defendants without probable cause,? (5) the ?Defendants
acted with malice,? and (6) the ?Plaintiffs were damaged by the criminal proceeding.? Doc. 186-5 (Jury
Instructions at 10); Doc. 265 (Oral Jury Instructions at 35). The jury instructions thus improperly required
a showing of malice, but that error is harmless because the jury found in favor of the Plaintiffs on their
claim of malicious prosecution despite the erroneously stringent standard.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 20
2. No Probable Cause to Initiate Criminal Proceedings8
The Defendants first claim that they had probable cause to arrest the Plaintiffs,
and they argue that this fact necessarily defeats the instant malicious-prosecution claim.
In order to distinguish appropriately this claim from one of false arrest, we must consider
not only whether the Defendants had probable cause to arrest the Plaintiffs but also
whether probable cause existed to initiate the criminal proceeding against the Plaintiffs.
See, e.g., Fox, 489 F.3d at 237 (?What is certain . . . is that [a malicious prosecution]
claim fails when there was probable cause to prosecute . . .? (emphasis added)); Barnes,
449 F.3d at 716 (?[T]he defendants had probable cause to seek an indictment against [the
plaintiff].? (emphasis added)).
We have already concluded that the Defendants lacked probable cause to arrest
Sykes, and the Defendants have pointed to no evidence uncovered subsequent to Sykes?s
arrest that would call into question the jury's belief that there was no probable cause to
initiate criminal proceedings against her. Turning to Urquhart, we similarly conclude
that probable cause to arrest and prosecute was lacking. As outlined above, apart from
inviting pure speculation as to the Plaintiffs? potential involvement, the facts revealed
by the surveillance video from the Sprint PCS store provided no reasonable ground for
the belief that Urquhart was a perpetrator of the robbery, as opposed to its victim. To
the extent that the Defendants assert that Urquhart's behavior at the time Sgt. Nichols
interviewed her provides support for a finding of probable cause, we wholly disagree.
It bears repeating that at the time that Sgt. Nichols asked Urquhart to provide a statement, only two hours had passed since the robbery. Urquhart was visibly shaken
and required medical treatment. Moreover, Urquhart was pregnant at the time of the
robbery and had been the victim of a home invasion just days earlier, and Sgt. Nichols
was aware of these facts. A reasonable jury could have found that any one of these
factors explained and justified Urquhart's amplified agitation and displeasure with
Because the Plaintiffs? malicious-prosecution claim ?is based on a police officer's supplying
false information to establish probable cause,? the determination of probable cause that the state court
made at the Plaintiffs? preliminary hearing does not carry preclusive effect in the instant case. Peet, 502
F.3d at 566 (citing Hinchman, 312 F.3d at 202?03).
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 21
having to remain at the scene to speak with police. Mere disinterest in speaking with an
officer under the circumstances here is not sufficient to meet the probable-cause
threshold. Furthermore, as with Sykes, the Defendants have failed to point to any
untainted and truthful post-arrest evidence bearing upon whether there was probable
cause to institute a criminal proceeding against Urquhart.
Contrary to the Defendants? claim, viewing the totality of the circumstances at
the time of the Plaintiffs? arrest and through the time that the criminal proceeding against
them commenced, a reasonable jury could have concluded that there was no probable
cause to believe that either Sykes or Urquhart had committed any crime.
3. Defendants Influenced Decision to Prosecution
The Defendants further claim that they cannot be held liable for malicious
prosecution because they did not make the decision to prosecute the Plaintiffs. There is
very little case law in this circuit discussing precisely what role an investigating officer
must play in initiating a prosecution such that liability for malicious prosecution is
warranted, but existing cases do indicate that an officer may be responsible for
commencing a criminal proceedings against a plaintiff, where the officer ?ma[d]e,
influence[d], or participate[d] in the decision to prosecute.? Fox, 489 F.3d at 237. Thus,
contrary to the Defendants? assertion, the fact that they did not make the decision to
prosecute does not per se absolve them from liability. Instead, the Plaintiffs were
entitled to prove that the Defendants either ?influence[d ] or participate[d] in the
decision to prosecute.? Id.9 Because Sgt. Nichols and Sgt. Anderson played distinct
roles in the process, we analyze their actions separately in order to determine whether
the Plaintiffs have met their burden with respect to this element.
Whether an officer influenced or participated in the decision to prosecute hinges on the degree
of the officer's involvement and the nature of the officer's actions. See Malley v. Briggs, 475 U.S. 335
344?45 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167
, 187 (1961)) (construing Â§ 1983 ?against the
background of tort liability,? in which people are responsible for ?natural consequences? of their acts).
The totality of the circumstances informs this fact determination.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 22
Sgt. Nichols's Testimony at the Plaintiffs? Preliminary Hearing. The Plaintiffs?
claim of malicious prosecution against Sgt. Nichols is predicated on two
misrepresentations that she made during her sworn testimony at the preliminary hearing
where the decision was made to bind the Plaintiffs over for trial. It is well established
in this circuit that ?[p]olice officers cannot, in good faith, rely on a judicial determination
of probable cause [to absolve them of liability] when that determination was premised
on an officer's own material misrepresentations to the court.? Gregory v. City of
Louisville, 444 F.3d 725
, 758 (6th Cir. 2006). This means that in order to establish that
a testifying officer was responsible for commencing a criminal proceeding for purposes
of a malicious-prosecution claim, the Plaintiffs were required to present evidence that
Nichols ?(1) stated a deliberate falsehood or showed reckless disregard for the truth [at
the hearing] and (2) that the allegedly false or omitted information was material to the
[court?s] finding of probable cause.? Id.; see Molnar v. Care House, 359 F. App?x 623,
627 (6th Cir. 2009) (unpublished opinion) (?Even accepting [the] allegation that [the
officer] ?knowingly supplied the magistrate with false information,? Darrah, 255 F.3d
at 311, the state court did not rely on her testimony to establish probable cause.?).
Based on the evidence in the instant case, a reasonable jury could have concluded
that Sgt. Nichols testified falsely at the preliminary hearing and that her statements were
material to the state court's finding of probable cause. First, the evidence before the jury
revealed that Sgt. Nichols?the only officer called to testify at the preliminary
hearing?testified that the video-surveillance evidence contradicted Urquhart's witness statement and account of the robbery when, in fact, Urquhart's statement was entirely
consistent with that evidence.10 A reasonable jury could have found not only that Sgt.
Nichols's statement amounted to false testimony but also that it was material to the state
Specifically, Sgt. Nichols testified at the preliminary hearing that Urquhart told her that the
??gunman took her into the room where the safe was, and then held her at gunpoint and told her to open
the safe and give him the money.?? Doc. 288 (Nichols Trial Test. at 84) (quoting testimony from
preliminary hearing). Sgt. Nichols then claimed that Urquhart's statement was not supported by the video
evidence because at no point did the gunman go into the safe room with Urquhart. On cross-examination
in the instant case, however, Sgt. Nichols admitted that ?[t]here [wa]s nothing in [Urquhart?s] witness statement that even suggest[ed] that [the perpetrator] accompanied her into the safe room at gunpoint.?
Id. at 89. Sgt. Nichols further admitted that by testifying that Urquhart's statements were not supported
by the evidence, she had ?not recall[ed] correctly? at the preliminary hearing notwithstanding the fact that she held Urquhart's witness statement in her hand while testifying at the preliminary hearing. Id.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 23
court's determination that there was probable cause to bind the Plaintiffs over for trial.
Had Sgt. Nichols testified that Urquhart's account of the robbery was entirely consistent
with the video evidence, Sgt. Nichols's truthful statement might have resulted in a
conclusion that there was insufficient evidence to bind the Plaintiffs over for trial. Cf.
United States v. Wallace, 597 F.3d 794
, 801 (6th Cir. 2010) (noting in the context of a
perjury charge that ?a false declaration satisfies the materiality requirement if a truthful statement might have assisted or influenced . . . the [court] in its investigation.? (internal
quotation marks and alteration omitted)). Consistency between an alleged perpetrator's statement and the remaining evidence in a case is certainly relevant to determining not
only whether the alleged perpetrator was involved in criminal activity but also the
credibility of the alleged perpetrator's repeated exclamations of innocence. Cf. United
States v. Rose, 889 F.2d 1490
, 1493 (6th Cir. 1989) (indicating that a police officer?s
discovery of ?evidence contradicting the [alleged perpetrator?s] previous statements?
could ?elevat[e] the agent's suspicion to probable cause?). In fact, the materiality of Sgt.
Nichols's false testimony in determining whether there was probable cause to prosecute
is highlighted by the prosecutor's reliance on the alleged discrepancy between
Urquhart's statement and the video evidence when the prosecutor argued at the
preliminary hearing that probable cause existed to believe that the Plaintiffs were
involved in the robbery: ??Not only does [Urquhart] say in [her] statement that she
handed the bag to this alleged armed robber, her statement makes it sound like there?s
an armed robber in the room with her.?? Doc. 288 (Nichols Trial Test. at 90?91)
(quoting prosecutor's closing argument at the preliminary hearing).
The second falsehood that the Plaintiffs highlight is Sgt. Nichols's testimony at
the preliminary hearing that Sykes's and Urquhart's witness statements were suspicious
because they were too similar. As the Plaintiffs revealed to the jury in the instant case,
however, Sgt. Nichols later testified that Sykes's and Urquhart's witness statements were
actually not similar, but were suspicious because they were so different.11 Again, a
In the instant case, Sgt. Nichols testified in response to the Plaintiffs? questions about her
testimony at the preliminary hearing as follows:
Q: Do you remember being asked at the preliminary exam what evidence you had to
support your suspicion that Ms. Sykes and Ms. Urquhart were guilty of this crime?
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 24
reasonable jury could have concluded that Sgt. Nichols's statements amounted to false
testimony. Given that she was the only officer to testify at the preliminary hearing, a
reasonable jury likewise could have found that Sgt. Nichols's misrepresentations of the
facts regarding not only the evidence in the case but also the credibility of the suspects
were material to the state court's decision to bind the Plaintiffs over for trial. As a result,
we have no trouble concluding that a reasonable jury could have found that Sgt. Nichols
influenced or participated in the decision to prosecute and that her false testimony was
thus one cause of the commencement of the criminal proceedings against the Plaintiffs.12
Sgt. Anderson's Investigatory Materials. Turning to Sgt. Anderson, the
Plaintiffs predicate his liability on his affirmative misrepresentations and omissions in
his arrest-warrant application and investigative report. This circuit has had few
opportunities to address the nexus between an officer's statements in his or her
A: . . . [Y]es, I do.
Q: Do you remember the reason that you gave was because their statements were the
A: I remember saying that, yes.
Q: And that was basically the only reason, wasn?t it, for your suspicion of Ms. Sykes?
A: Their statements were the same.
Q: So if I understand?let me back up. You testified at the criminal trial as well,
A: I did.
Q: You were asked that same question, weren?t you?
A: I was.
Q: You gave the exact opposite answer, didn?t you?
A: I said there were some discrepancies.
Doc. 260 (Nichols Trial Test. at 94?95).
The Defendants argued in their briefs and at oral argument that no reasonable jury could have
concluded that Sgt. Nichols's statements were material to a finding of probable cause because ?[w]hile
under cross examination by the defense? at the preliminary hearing, Sgt. Nichols conceded that she had
made misleading or false statements. Appellant Br. at 50. Given that ?[t]he judge was aware of the
purported alleged discrepancy of [Sgt. Nichols?s] testimony,? the Defendants claim that it would be
incongruous to conclude that the state court then relied on those falsehoods to bind the Plaintiffs over for
trial. Appellant Br. at 51.
Although we are sympathetic to Sgt. Nichols's assertion on appeal, we remind the Defendants
that our task on review is to consider whether the evidence before the jury at the time of trial is sufficient
to sustain its verdict. See, e.g., Tschira, 135 F.3d at 1088 (?Based on the evidence presented at trial, the
district court did not commit error in denying Appellants? Rule 50(b) motion.? (emphasis added)). Despite
the fact that Sgt. Nichols attached to her Rule 50(b) motion excerpts from her preliminary-hearing
testimony that indicated that the state court was aware of her false testimony, our review of the trial
transcripts indicates that the preliminary-hearing transcript was never submitted to the jury in the instant
case. Counsel's failure to submit this very relevant, indeed dispositive, evidence to the jury is
questionable, at best. But because we review whether sufficient evidence supported the jury's verdict by
looking at the evidence that the jury actually had before it, we must disregard the excerpts from Sgt.
Nichols's preliminary-hearing testimony that were not presented to the jury.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 25
investigatory materials and the institution of a criminal prosecution sufficient to sustain
a claim for malicious prosecution. It is absolutely clear, however, that an officer will not
be deemed to have commenced a criminal proceeding against a person when the claim
is predicated on the mere fact that the officer turned over to the prosecution the officer?s
truthful materials. McKinley, 404 F.3d at 444; Skousen, 305 F.3d at 529; Wysong v. City
of Heath, 377 F. App?x 466, 470 (6th Cir. 2010) (unpublished opinion); Kinkus v.
Village of Yorkville, Ohio, 289 F. App?x 86, 91 (6th Cir. 2008) (unpublished opinion)
(holding that the officer played no role in the prosecution because the ?police report
[provided to the prosecutor] did not contain false information?).
As discussed above in the context of Sykes's false-arrest claim, however, Sgt.
Anderson's liability is not premised on his disclosure of truthful investigatory materials.
The matter that we must resolve, then, is whether Sgt. Anderson's falsehoods,
misrepresentations, and omissions, which clearly led to the Plaintiffs? arrests, can survive a number of intervening decisions by others such that Sgt. Anderson can still be said to have influenced or participated in the decision to institute criminal proceedings.
Considering causation broadly, as the Plaintiffs urge, it certainly was Sgt. Anderson?s
arrest that started the chain of events that ultimately led to the prosecutor's decision to
proceed with the criminal charges against the Plaintiffs.13 Looking at causation more
narrowly, Sgt. Anderson reasonably could have foreseen that by providing false
information to the prosecutor that bore directly on whether there was probable cause to
believe that the Plaintiffs committed a crime, his misconduct could result in not only the
Plaintiffs? initial seizure but also their eventual incarceration. And holding Sgt.
Anderson liable for all reasonably foreseeable consequences of his initial misdeeds finds support in the Supreme Court's decision in Malley v. Briggs, 475 U.S. 335
Malley, the Supreme Court made clear that normal causation principles apply to
42 U.S.C. Â§ 1983 actions by stating that if an ?officer caused [a] plaintiff to be
unconstitutionally arrested by presenting a judge with a complaint and a supporting
As we have noted elsewhere, under ?Michigan law . . . a criminal prosecution ?is initiated in
the sole discretion of the prosecutor.?? Moldowan v. City of Warren, 578 F.3d 351
, 400 (6th Cir. 2009)
(quoting Matthews v. Blue Cross & Blue Shield, 572 N.W.2d 603, 610 (Mich. 1998)).
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 26
affidavit [that] failed to establish probable cause,? id. at 337, it is ?clear? that the
argument that ?the officer should not be liable because the judge's decision to issue the
warrant breaks the causal chain between the application for the warrant and the
improvident arrest? would be ?inconsistent with [its] interpretation of Â§ 1983,? id. at 344
n.7. But in the instant case, Sgt. Anderson's actions were even more removed from the
ultimate relevant decision than those of the officer in Malley, and the Plaintiffs? reliance
on this case is not entirely convincing. Here, Sgt. Anderson submitted the warrant
application and investigatory materials containing false and misleading information to
prosecutor, the prosecutor approved the warrant application, a magistrate issued the
warrant, and the Plaintiffs were arrested. See Mich. Comp. Laws Â§ 764.1(1) (West
2010); Walczak v. City of Detroit, 875 F.2d 869
(table) (6th Cir. 1989) (describing the
warrant-request process in Michigan). Following the Plaintiffs? arrest, however, there
was a preliminary hearing during which the state court made a determination that
probable cause to prosecute existed based, in part, on Sgt. Nichols's false testimony, and
it is undisputed that Sgt. Anderson did not testify at the preliminary hearing. Although
this circuit has not confronted a case entirely analogous to the instant one, Gregory is
again helpful in determining whether Sgt. Anderson's actions survive these intervening
decisions such that he can be said to have influenced or participated in the decision to
institute criminal proceedings against the Plaintiffs.
In Gregory, this court upheld a district court's grant of summary judgment on a
claim of malicious prosecution in favor of two officer-defendants who had fabricated
investigative notes indicating that the plaintiff possessed independent knowledge of facts
from the crime that only the perpetrator would know. Gregory, 444 F.3d at 757. The
panel reasoned that the plaintiff had ?failed to establish a Fourth Amendment injury from
the notes? existence and creation? because the plaintiff had presented ?no evidence that
the notes were presented to the court at the preliminary hearing??thereby
?contribut[ing] to the Court's determination of probable cause to hold Plaintiff over for
trial??or ?that the notes influenced any decision to proceed to trial.? Id. at 759?60.
The conclusion not only that the consequences of the officer's actions must be
reasonably foreseeable but also that the officer's action must have influenced the
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 27
continued detention is consistent with other circuits that have confronted cases similar
to the instant one. For example, in Reed v. City of Chicago, the Seventh Circuit noted
that although ?[i]t is conceivable that a wrongful arrest could be the first step towards
a malicious prosecution[,] . . . the chain of causation? will be ?broken by an indictment
absent an allegation of pressure or influence exerted by the police officers, or knowing
misstatements made by the officers to the prosecutor.? Reed v. City of Chicago, 77 F.3d 1049
, 1053 (7th Cir. 1996) (citing Senra v. Cunningham, 9 F.3d 168
, 174 (1st Cir. 1993),
which held that a ?[t]he chain of causation [will be] broken if the filing of the
information by the attorney at the state Attorney General's office was free of pressure
or influence exerted by the police officers or knowing misstatements made by the
officers to the Attorney General's office?); Taylor v. Meacham, 82 F.3d 1556
(10th Cir. 1996) (adopting Reed's reasoning and holding that no claim could be sustained against a sheriff who may have ?set in motion a malicious prosecution?
because the ?preliminary hearing broke the ?chain of causation?? and there was no
evidence that the sheriff ?made false or misleading statements following [the plaintiff?s]
arrest, nor that he somehow caused false or perjured testimony to be presented at the
preliminary hearing?). Likewise, in Higazy v. Templeton, the Second Circuit concluded
that ?[d]efendants . . . may be liable for consequences caused by reasonably foreseeable
intervening forces,? and ?the chain of causation need not be considered broken [in a
malicious-prosecution claim against an officer] if [the officer] deceived the subsequent
decision maker or could reasonably foresee that his misconduct would contribute to an
independent decision that results in a deprivation of liberty.? Higazy v. Templeton, 505 F.3d 161
, 177 (2d Cir. 2007) (internal quotation marks, citation, and alteration omitted).
Based on the foregoing caselaw, we conclude that in order to show that Sgt.
Anderson participated in or that his actions influenced the commencement of criminal
proceedings as required to sustain a claim of malicious prosecution, the Plaintiffs were
required to present some evidence that the impact of Sgt. Anderson's misstatements and
falsehoods in his investigatory materials extended beyond the Plaintiffs? initial arrest and
ultimately influenced the Plaintiffs? continued detention. We also conclude, however,
that such influence is not narrowly limited to the introduction of Sgt. Anderson's false
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 28
statements as evidence at the preliminary hearing but can also be based on Sgt.
Anderson's ?knowing misstatements . . . to the prosecutor? or his ?pressure or
influence,? Reed, 77 F.3d at 1053, over an individual who either made the decision to
prosecute or testified at the preliminary hearing.
Employing this standard in the instant case, a reasonable jury could have found
that Sgt. Anderson participated in or influenced the decision to prosecute the Plaintiffs such that liability for malicious prosecution is proper. Perhaps the most telling evidence
of Sgt. Anderson's influence over the decision to commence criminal proceedings
against the Plaintiffs resides in his investigatory materials, which were clearly in the
prosecution's possession. Not only did these materials contain knowing misstatements,
as outlined previously, but also it is apparent from the record that the prosecution
actually relied on many of Sgt. Anderson's falsehoods in proceeding against the
Plaintiffs by reproducing many of the very same material misrepresentations of the
evidence that Sgt. Anderson had made. For example, Lewis stated in her notes that the surveillance ?video tape does not show an [armed robbery]? because ?nothing [was]
taken from the safe until the [defendants were] alone in the room,? and that the Plaintiffs
?appear[ed] to be counting money.? Doc. 231-17 (Prosecutor Notes). This is plainly not
the case, and a reasonable jury could have concluded from the striking similarities
between Prosecutor Lewis's unsupported conclusions and Sgt. Anderson's falsehoods
that the prosecution relied on Sgt. Anderson's misstatements in filing criminal charges.
Sgt. Anderson's influence can likewise be seen in the prosecution's reference to the
Holmes gaming records. Notwithstanding the fact that the prosecution had not seen any
documentation from the Casino, Lewis noted that Holmes had ?spent almost the exact
amount stolen [at] a casino? and that Sgt. Anderson, the officer in charge, ?ha[d] the
records? to prove it. Id.
In short, the fact that Sgt. Anderson did not make the decision to initiate the
criminal proceedings against the Plaintiffs is of no moment, as the record contains ample
evidence that Sgt. Anderson influenced or participated in the ultimate decision to
prosecute the Plaintiffs by way of his knowing misstatements to the prosecutor. As the
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 29
Seventh Circuit stated in Jones v. City of Chicago, ?[i]f police officers have been
instrumental in the plaintiff's continued confinement or prosecution, they cannot escape
liability by pointing to the decisions of prosecutors or grand jurors or magistrates to
confine or prosecute him.? Jones v. City of Chicago, 856 F.2d 985
, 994 (7th Cir. 1988).
?They cannot hide behind the officials whom they have defrauded.? Id. We thus affirm
the judgment against the Defendants as to the Plaintiffs? claims for malicious
E. Due-Process Claim
Sgt. Anderson also challenges on appeal the jury's conclusion that his failure to
disclose the letter from MotorCity Casino casting doubt on the reliability of Holmes?s
gaming records violated the Plaintiffs? right to a fair criminal trial in violation of due
process. Specifically, Sgt. Anderson claims that there was insufficient evidence for the
jury to determine that he concealed exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83
(1963), because: (1) a Brady claim cannot be raised against a
police officer in a Â§ 1983 action, (2) Brady is inapplicable where the evidence is
available from another source, (3) the evidence was not favorable to the Plaintiffs, and
(4) the Plaintiffs are unable to show prejudice. We address and reject each of Sgt.
Anderson's assertions in turn.
As discussed previously, the contested evidence consisted of a three-page letter
from the MotorCity Casino that was sent as part of the Casino's longer, nine-page
response to Sgt. Nichols's subpoena for Holmes's gaming records. Numerous pages
from the Casino provided information that indicated that Holmes's player's card had
been used to wager approximately $20,000 within days of the robbery. The first three
pages of the Casino's response, however, consisted of a letter from the Casino's legal
counsel that stated, in relevant part:
Although the Defendants claim that the jury was improperly instructed regarding the elements
of the malicious-prosecution claim, looking at the totality of the district court's instructions, we find no
error. See Wilson v. Morgan, 477 F.3d 326
, 341 (6th Cir. 2007) (?A judgment may be reversed only if the
instructions, viewed as a whole, were confusing, misleading, and prejudicial.?).
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 30
Our office is in receipt of your request for information [regarding
Kimberly Holmes] . . . . Detroit Entertainment, L.L.C., may have
documentation in its possession prepared and filed in accordance with
[federal statute and regulations,] . . . [which] Detroit Entertainment,
L.L.C., d/b/a MotorCity Casino believes that it is prohibited from
disclosing . . . .We recommend that you contact the Internal Revenue
Service to obtain any such documentation filed by . . . MotorCity Casino
in connection with [Holmes].
I would like to state in writing the position of MotorCity Casino with
respect to the documentation you seek. The documentation that
MotorCity Casino retains in connection with the play of its customers is
compiled primarily for marketing purposes; it is not compiled in a
manner that ensures either accurate or full reporting of the time spent at
the casino, the time spent gambling, or the actual play (wins or losses)
of a customer. Indeed, if the records indicate slot machine activity, they
only reflect the fact that a player's card bearing the identification name
was used?not that the person to whom the card was issued actually used
it. Furthermore, records regarding table game activity are based on
periodic visual inspections by various pit employees who then manually
input data into the computer system. Note, too, that some entries may
simply reflect the fact that a MotorCity Casino employee logged on to
the system to check the player's status, thereby creating the appearance
of that player's attendance at the Casino at the time of the log-in when
no such attendance occurred. Accordingly, the documentation would not
establish in any reliable manner the dates of attendance, gambling
activities, or winnings or losses of a player. Therefore, I would advise
discretion in utilizing the enclosed information.
Doc. 231-8 (Casino Letter at 2?3) (emphases added). Despite receiving this letter, Sgt.
Anderson did not request surveillance tapes from the Casino or otherwise attempt to
confirm Holmes's presence and did no further investigation into the accuracy of the
At Sykes and Urquhart's criminal trial, the prosecution's principal theory of the
case was that the robbery was an inside job and that Holmes had gambled away the loot.
Sgt. Anderson was the key witness, and he testified that he had received documentation
from the Casino that Holmes had used her player's card to wager around $20,000
immediately following the robbery. The prosecution then admitted into evidence the single page from the Casino that Sgt. Anderson had provided to the prosecution, which
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 31
set forth the wagering data that included the amounts that Holmes purportedly lost. As
noted, there were several problems with this evidence. First, Sgt. Anderson had not
disclosed the existence of the gaming records to the Plaintiffs? defense attorneys prior
to trial, so the first time that the defense gained knowledge of the Casino's records was
while Sgt. Anderson was on the stand. Second, Sgt. Anderson never revealed to either
the prosecution or the defense that the Casino sent anything other than the one page that
was introduced as evidence, and he made no mention of the Casino's disclaimer letter
at any time. Third, as compared to the original nine-page document that the Casino had sent in response to the subpoena, the one page from the Casino that the prosecution
introduced as evidence had been magnified and cropped in a manner that removed the
fax time stamps and page numbers, erasing any evidence that it was only one page of a
much lengthier document. In other words, there was nothing to put Urquhart or Sykes
on notice that the information that Sgt. Anderson was presenting from the Casino on this
one page was incomplete.
Following the introduction of the Casino document, the prosecutor proceeded to
question Sgt. Anderson about the accuracy of the wagering calculation contained therein:
Q: ?Now you also received some information from Motor City
regarding the absolute accuracy of those numbers.?
?Q: What did Motor City convey to you as to . . . whether or not those
are absolute hard numbers or if they?re just marketing estimates
or something like that??
Q: . . . ?A: These were absolute numbers due to the fact they would
have to send to the federal government this paperwork regarding tax
Doc. 237 (Anderson Trial Test. at 104?05) (quoting Anderson's testimony from the
Plaintiffs? criminal trial). These statements, however, were patently false and directly
contradicted the explicit statements in the Casino letter that its calculations were for
marketing purposes, were not disclosed to the IRS, and were not reliable indicators of
the amount wagered or the identity of the individual who gambled. Sgt. Anderson?s
failure to disclose this information constituted the basis for the Plaintiffs? Brady claim.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 32
1. Brady-Based Â§ 1983 Due-Process Claim Against Police Officers is
Sgt. Anderson first argues that a due-process claim against a police officer for
a Brady violation in a 42 U.S.C. Â§ 1983 action is not cognizable. In Moldowan v. City
of Warren, a panel of this circuit recently rejected such an argument and held that ?the
due process guarantees recognized in Brady also impose an analogous or derivative
obligation on the police,? and that a violation of that obligation can result in civil
liability. Moldowan v. City of Warren, 578 F.3d 351
, 381 (6th Cir. 2009), cert. denied,
130 S. Ct. 3504
(2010); see also Elkins v. Summit Cnty., 615 F.3d 671
, 676 (6th Cir.
2010). This panel is without authority to overrule binding precedent, because a
published prior panel decision ?remains controlling authority unless an inconsistent
decision of the United States Supreme Court requires modification of the decision or this
Court sitting en banc overrules the prior decision.? Salmi v. Sec?y of Health & Human
Servs., 774 F.2d 685
, 689 (6th Cir. 1985). Moldowan clearly forecloses Sgt. Anderson?s
argument, and his claim is thus without merit.
2. The Evidence Was Not Available from Another Source
Sgt. Anderson next argues that even assuming he was obligated to turn over
favorable evidence under Brady, that obligation does not apply when the evidence was
readily available from another source and that, in this case, the Plaintiffs could have
contacted the Casino directly and obtained the information contained in the Casino?s
letter. In support of his argument, Sgt. Anderson relies on Spirko v. Mitchell, 368 F.3d 603
(6th Cir. 2004), which reaffirmed prior precedent standing for the proposition that
if a ?defendant was aware of the essential facts that would enable him to take advantage
of the exculpatory evidence, the government's failure to disclose [that evidence] d[oes]
not violate Brady.? Spirko, 368 F.3d at 610 (internal quotation marks omitted).
What is fatal to Sgt. Anderson's claim, however, is that the record does not support the conclusion that the Plaintiffs ever possessed the ?essential facts,? id., that
would have enabled them to uncover the evidence at issue. Trial testimony indicates that
at no point prior to trial were the Plaintiffs on notice that Sgt. Anderson possessed
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 33
information from the Casino regarding the use of Holmes's gaming card. In fact, the
Plaintiffs? defense attorney testified explicitly that the discovery packet ?definitely [did]
not? contain any documents having to do with gaming activity, Doc. 238 (Richards Trial
Test. at 8), and that the ?first time? she ever saw any document from the Casino was at
trial, id. at 19. Additionally, even assuming that the Plaintiffs were on notice that the
police had evidence that Holmes had wagered an amount of money that was
approximately equal to that which was stolen from the store, this did not place the
Plaintiffs ?on notice that there was evidence? from the Casino that this information was
entirely unreliable. Spirko, 368 F.3d at 610; see also Harris, 513 F.3d at 518 (?[T]here
is no indication that [the defendant] knew or had reason to know? of the existence of the
undisclosed evidence). In short, Sgt. Anderson's argument is without merit because
there is no evidence in the record indicating that the Plaintiffs possessed any of the facts
that would have enabled them to uncover the Casino letter prior to trial.
3. The Plaintiffs Proved the Evidence Was Favorable and that They
The next challenge to the jury's verdict on the due-process claim is that
insufficient evidence supported the jury's findings that the Casino letter was favorable
to the Plaintiffs and that the Plaintiffs suffered prejudice as a result of Sgt. Anderson?s
failure to disclose the letter. ?In Brady, the United States Supreme Court imposed upon
the prosecutorial arm of the government the obligation to turn over material that is both
favorable to the defendant and material to guilt or punishment.? Johnson v. Mitchell,
585 F.3d 923
, 933 (6th Cir. 2009) (internal quotation marks omitted). ?Moreover, it is
well-settled that this disclosure obligation includes evidence that could be used to
impeach the credibility of a witness.? Id. (internal quotation marks omitted); see also
United States v. Bagley, 473 U.S. 667
, 676 (1985). ?Nevertheless, a Brady violation will
not result in a grant of relief? unless we can conclude that the evidence the police
improperly withheld ??could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.?? Johnson, 585 F.3d at 933
(quoting Kyles v. Whitley, 514 U.S. 419
, 435 (1995)).
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 34
We believe that Sgt. Anderson's claim that the undisclosed Casino letter was not
?favorable? is entirely without merit. The Casino letter directly contradicts Sgt.
Anderson's testimony, and it would have been very powerful impeachment evidence for
two reasons. First, the letter clearly indicated that the dollar amounts that the
prosecution admitted into evidence to show that Holmes had wagered approximately the same amount of money that was stolen were not reliable. Second, the letter raised serious questions about whether Holmes was even the individual who had wagered the
amount of money indicated on the Casino's marketing records, which, if she were not,
would have undermined the prosecution's entire theory of the case. From the time that
Sgt. Anderson submitted the warrant request until the jury's verdict, the strongest piece
of circumstantial evidence of the Plaintiffs? involvement in any criminal activity was
Holmes's gambling. With the credibility of the strongest evidence against the Plaintiffs
directly called into question, the prosecution's case would have collapsed.
In addition to concluding that the Casino letter was ?favorable? to the Plaintiffs,
a reasonable jury also could have found that the Plaintiffs were prejudiced as a result of
Sgt. Anderson's failure to disclose the evidence because ??there is a reasonable
probability?? that, had Sgt. Anderson disclosed the evidence, ??the result of the
proceeding would have been different.?? Apanovitch v. Houk, 466 F.3d 460
, 475 (6th
Cir. 2006) (quoting Strickler v. Greene, 527 U.S. 263
, 280, 282 (1999)). ?A ?reasonable
probability? of a different outcome exists where the government's suppression of
evidence undermines confidence in the outcome of the trial.? Id. (citing Kyles, 514 U.S.
at 434, Bagley, 473 U.S. at 682, and Mason v. Mitchell, 320 F.3d 604
, 628 (6th Cir.
2003)). It bears repeating that at the Plaintiffs? criminal trial, the prosecution's theory
was that the robbery was an inside job and that Holmes blew the money on a gambling spree. The prosecutor articulated it best in his closing statement:
?Well, let me tell you, ladies and gentlemen, I?m demanding that you
accept the facts in this case because the facts show without a doubt that
this was a faked armed robbery, that these two women were in on it, that
they covered it up, that Ms. Holmes took the money after the robbers left,
after several minutes of colluding with these two women, took the money
and ran with it. Those are the facts. I?m demanding that you accept
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 35
these facts . . . And consider this, ladies and gentlemen, here's a woman,
Ms. Holmes, who spends almost $25,000 in the casino in three days . . .
Think of it this way, okay? Miss Sykes and Ms. Urquhart agreed to
make the false report in exchange for money. Ms. Holmes rips them off,
later blows the money at the casino. Maybe she's thinking she?ll turn it
into 50 grand, give them their money and more for me, but she spends
Doc. 261 (Trial Test. at 61?62) (quoting the prosecution's closing argument at the
criminal trial). This theory depends, however, on one critical fact that the Casino letter
calls into question: Holmes actually gambled a comparable amount of money to that stolen from the Sprint store.
On the record before us, we believe that there is sufficient evidence for a
reasonable jury to conclude that the ??result of the proceeding would have been
different?? if Sgt. Anderson had disclosed the Casino letter. See Apanovitch, 466 F.3d
at 475 (quoting Strickler, 527 U.S. at 280). Even the prosecutor in the underlying
criminal action testified that if he had known about the additional documentation from
the Casino, he would have asked different questions regarding the accuracy of numbers
introduced into evidence and would have expected Sgt. Anderson to have given different
answers. The prosecutor also testified that, had he known about the letter, he would
have disclosed it to the Plaintiffs, which implicitly recognizes its value as Brady
material. Furthermore, the Plaintiffs? defense attorney testified before the jury in the
instant case about what she would have done differently had she possessed the Casino
letter, specifically asserting that she would have (1) impeached Sgt. Anderson with the
letter to undermine the prosecution's theory that the three women worked together and
that the money went to fund Holmes's gambling, (2) subpoenaed the Casino records, and
(3) called a representative from the Casino to testify as to the manner that the records should have been interpreted. In sum, the defense attorney would have used the fact that
both the identity of the gambler and the amount of money that the gambler wagered were
unreliable as a vehicle to attack the prosecution's entire case.
This was not a case where the evidence against the Plaintiffs was strong. It was
entirely premised on a single piece of circumstantial evidence that the undisclosed letter
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 36
completely undermined. For the foregoing reasons, we affirm the judgment of the
district court with regard to the Plaintiffs? due-process claims against Sgt. Anderson.
F. Motion for a New Trial
The Defendants next contend that the district court abused its discretion in
denying their motion for a new trial under Federal Rule of Civil Procedure 59(a). ?We
review a district court's denial of a new-trial motion for abuse of discretion, reversing
only if we have a definite and firm conviction that the trial court committed a clear error
of judgment.? Radvansky, 496 F.3d at 614 (internal quotation marks omitted). Granting such a motion necessarily calls into question the legitimacy of the jury's verdict, and
given our conclusion that the evidence supported the jury's verdict on the Plaintiffs?
claims of false arrest, malicious prosecution, and due-process violations, we likewise
conclude that the district court did not abuse its discretion.
G. Propriety of the Damages Award
1. Punitive Damages
Turning to damages, the Defendants first argue that the evidence at trial failed
to show that the Defendants? actions were reprehensible enough to support a punitive-
damages award. Because the Defendants failed to challenge to the sufficiency of the
evidence in their Rule 50(a) motion, however, the matter is waived.15
2. Remittitur of Damages
The Defendants? final challenge is that the damage award was clearly excessive
and that they were entitled to remittitur of both the compensatory and punitive amounts.
In the instant case, the jury awarded Sykes $1,063,000 in compensatory damages and
$250,000 in punitive damages for her false-imprisonment, malicious-prosecution, and
due-process claims. Sgt. Nichols and Sgt. Anderson are jointly and severally liable for
We are unconvinced by the Defendants? attempt to recharacterize their challenge to the
punitive-damages award as one involving a jury-instruction error. The substance of the Defendants? claim
that the evidence at trial could not have satisfied the standard set forth in the jury instruction is no different
than the assertion that the evidence at trial did not establish that the Defendants? conduct was sufficiently
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 37
the compensatory damages while Sgt. Nichols is liable for only $100,000 of the punitive-
damages award. Urquhart received a compensatory-damage award of $1,020,000 for her
malicious-prosecution and due-process claims and $250,000 in punitive damages.
Again, Sgt. Nichols and Sgt. Anderson are jointly and severally liable for the
compensatory-damage award while Sgt. Nichols is liable for only $100,000 of the
$250,000 in punitive damages.
?As a general rule,? we have ?held that a jury verdict will not be set aside or
reduced as excessive unless it is beyond the maximum damages that the jury reasonably
could find to be compensatory for a party's loss.? Am. Trim, L.L.C. v. Oracle Corp., 383 F.3d 462
, 475 (6th Cir. 2004) (internal quotation marks omitted). We review the denial
of remittitur under an abuse-of-discretion standard. Gibson v. Moskowitz, 523 F.3d 657
663 (6th Cir. 2008). The district court has discretion to remit a compensatory-damages
?verdict only when, after reviewing all the evidence in the light most favorable to the
prevailing party, it is convinced that the verdict is clearly excessive; resulted from
passion, bias, or prejudice; or is so excessive or inadequate as to shock the conscience
of the court.? Am. Trim, 383 F.3d at 475. ?If there is any credible evidence to support
a verdict, it should not be set aside.? Id. ?Three considerations guide? the inquiry of
whether punitive damages are excessive: ?(1) the degree of reprehensibility of the
conduct; (2) the disparity between the harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive damages and the civil
penalty imposed in comparable cases.? Gibson, 523 F.3d at 664 (citing BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559
, 574?75 (1996)).
Although the Plaintiffs argue that the district court did not abuse its discretion
in denying the Defendants? motion for remittitur, the district court provided no written
explanation for its disposition and merely stated that ?[b]eing fully advised . . . [and]
having read the pleadings,? the district court was denying the motion ?for the reasons set forth on the record.? Doc. 193 (Dist. Ct. Order 6/25/08 at 2). Unfortunately,
however, at the hearing on the Rule 50(b) motion where the district court was presented
with the opportunity to address the Defendants? request for remittitur orally, the district
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 38
court also declined to set forth an explanation as to why it believed the jury's damages
award was supported by the evidence presented. In fact, the district court failed even to
mention the Defendants? motion for remittitur at the Rule 50(b) hearing and focused,
instead, on the Defendants? challenge to the propriety of punitive damages generally.16
Because ?the district court . . . did not adequately give the reasons for [its]
denial? of the Defendants? motion for remittitur, and failed to ?address the parties?
arguments? regarding remittitur as presented in their respective post-verdict motions for
judgment as a matter of law, we conclude that the district court abused its discretion.
Mich. Division-Monument Builders of N. Am. v. Mich. Cemetery Ass?n, 524 F.3d 726
740 (6th Cir. 2008). The district court's complete ?lack of explanation . . . greatly
hinders our ability to understand its reasoning,? id., and because of the deference that we
are required to provide to a district court's decision regarding remittitur, we must remand
the case to the district court for a statement of reasons regarding the manner in which it
chose to exercise its ample discretion and for some justification as to why the jury?s
award fell within the permissible range.17
For the foregoing reasons, we AFFIRM the judgment of the district court as to
liability under 42 U.S.C. Â§ 1983 for false arrest, malicious prosecution, and withholding
of evidence in violation of the Plaintiffs? due-process rights. Because the district court
failed to articulate a basis for its denial of the Defendants? motion for remittitur, we
REMAND for the sole purpose of having the district court explain its reasons for
denying remittitur. We HOLD IN ABEYANCE the Plaintiffs? cross-appeals in Case
The district court's discussion of punitive damages generally is unhelpful to our resolution of
whether the district court abused its discretion in denying remittitur because it contains no analysis of
whether the facts of the case supported the jury's ultimate award. Instead, in denying the Defendants?
motion for judgment as a matter of law on the punitive-damages award, the district court relied on the
Defendants? failure to challenge the sufficiency of the evidence for the punitive damages award prior to
the submission of the case to the jury in their Rule 50(a) motion.
The scope of the mandate on remand is extremely limited and provides only that the district
court explain the denial of the Defendants? motion. We express no opinion as to the propriety of that
decision, which we will address upon receipt of the district court's explanation.
Nos. 08-2088/2090/2118 Sykes et al. v. Anderson et al. Page 39
Numbers 08-2090 and 08-2118 pending our later review of the district court's statement
of reasons with regard to remittitur.