                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0005p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


 RANDY PATRICK ALMAN; MICHAEL BARNES; X
                                                   -
                          Plaintiffs-Appellants, --
 TRIANGLE FOUNDATION,

                                                   -
                                                       No. 10-2489

                                                   ,
                                                    >
                                                   -
            v.

                                                   -
                                                   -
 KEVIN REED, Officer, Wayne County
                                                   -
 Sheriff’s Department; RANDY THIVIERGE,
                                                   -
                                                   -
 Officer, Westland Police Department;

 Department; COUNTY OF WAYNE, MICHIGAN; -
 ROBERT SWOPE, Sergeant, Westland Police
                                                   -
                                                   -
 CITY OF WESTLAND, MICHIGAN,
                         Defendants-Appellees, -
                                                   -
                                                   -
                                                   -
 JOHN BUFFA, Officer, Wayne County
                                                   -
 Sheriff’s Department,
                                     Defendant. -
                                                  N
                    Appeal from the United States District Court
                   for the Eastern District of Michigan at Detroit.
               No. 08-14168—Gerald E. Rosen, Chief District Judge.
                              Argued: March 6, 2012
                      Decided and Filed: January 7, 2013
              Before: KEITH, BOGGS, and MOORE, Circuit Judges

                               _________________

                                   COUNSEL
ARGUED: Mary K. Kator, RAINBOW LAW CENTER, PLLC, Southfield, Michigan,
for Appellants. Margaret M. Flanagan, WAYNE COUNTY CORPORATION
COUNSEL, Detroit, Michigan, for Appellees Wayne County and Deputy Reed. Gregory
A. Roberts, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan,
for Appellees Thivierge, Swope, and City of Westland. ON BRIEF: Mary K. Kator,
RAINBOW LAW CENTER, PLLC, Southfield, Michigan, for Appellants. Margaret M.
Flanagan, WAYNE COUNTY CORPORATION COUNSEL, Detroit, Michigan, for
Appellees Wayne County and Deputy Reed. Gregory A. Roberts, Gail P. Massad,



                                         1
No. 10-2489        Alman, et al. v. Reed, et al.                                  Page 2


CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for
Appellees Thivierge, Swope, and City of Westland.
       KEITH, J., delivered the opinion of the court, in which MOORE, J., joined, and
BOGGS, J., joined in part and in the judgment. BOGGS, J. (pp. 25–26), delivered a
separate opinion concurring in part and dissenting in part.
                                  _________________

                                       OPINION
                                  _________________

       KEITH, Circuit Judge. Plaintiffs-Appellants Randy Alman (“Alman”), Michael
Barnes (“Barnes”), and the Triangle Foundation sued several Michigan law enforcement
officials, the City of Westland, and Wayne County for their respective involvement in
Alman’s arrest and the seizure of Barnes’s vehicle during an undercover operation. The
district court granted the Defendants’ motion for summary judgment after finding that
probable cause existed for the various state and municipal offenses that Alman was
charged with violating. The Plaintiffs appealed. For the reasons discussed below, we
REVERSE the district court’s judgment in part, AFFIRM its judgment in part, and
REMAND the case for further proceedings consistent with this opinion.

                           I. FACTUAL BACKGROUND

       Plaintiffs-Appellants Alman and Barnes are gay men and domestic partners who
lived in Yorktown, Indiana in October 2007. Alman was arrested in Westland, Michigan
on October 12, 2007, during an undercover police operation in Hix Park, while he was
taking a break from helping his mother move to a nearby apartment building. This case
arises out of the circumstances of his arrest and the subsequent seizure of the car Alman
had driven to the park, which belonged to Barnes.

A. Alman’s Arrest

       Around 1:00 p.m. on October 12, 2007, Alman decided to take a break from
helping his mother move to a new apartment and go visit Hix Park, which was nearby.
Hix Park is a public nature park with maintained trails winding through the woods, and
its entrance drive leads to a parking lot with a pavilion nearby. When Alman arrived at
No. 10-2489         Alman, et al. v. Reed, et al.                                 Page 3


the park that day, he parked his car and remained in his car for a while listening to the
radio. He eventually got out and sat down at a picnic table under the pavilion.
Defendant-Appellee Kevin Reed, a Wayne County Deputy Sheriff who was working
undercover, approached Alman at some point after Alman sat down at the table and
struck up a conversation.

         Deputy Reed was part of a law enforcement task force staffed by officers from
the Westland Police Department and the Wayne County Sheriff’s Department. Sergeant
Robert Swope of the Westland Police Department supervised the team, which, along
with Deputy Reed, also included Officers Randy Thivierge and John Buffa of the
Westland Police Department. The task force, known as the Metro Street Enforcement
Team (“MSET”), was formed to conduct surveillance at Hix Park to investigate
complaints of lewd conduct and possible sexual activity taking place in the park. (Sgt.
Swope testified that his supervisor informed him that Department of Public Service
workers had found empty condom wrappers and pornographic materials while emptying
trash cans in the park.)

         At the request of Swope’s supervisor, Lieutenant Engstrom of the Westland
Police Department, MSET had conducted visual surveillance at Hix Park prior to
October 12, 2007, and although they had found used condoms along the trails in the
park, they had not observed any sexual or lewd activity during those outings. (R.40-5
at 7.) Lt. Engstrom instructed Sgt. Swope to continue the surveillance and conduct a
decoy operation in the park with his team. That operation took place on October 12,
2007.

         Sgt. Swope supervised the decoy operation, Deputy Reed acted as the decoy, and
Officers Thivierge and Buffa were the surveillance and backup officers. Swope
monitored the operation from his car, while Thivierge and Buffa surveilled on foot and
in plain clothes. Swope testified that he selected Reed to be the decoy because Reed had
experience working with the morality unit for the Sheriff’s Department for about five
years.
No. 10-2489        Alman, et al. v. Reed, et al.                                  Page 4


       When the officers arrived at the park, they observed Alman sitting on the picnic
bench under the pavilion. According to his testimony, Reed walked over to the pavilion,
sat down at a picnic bench, and struck up a conversation with Alman because Alman was
the only person around. (R.42-3 at 20; R.40-5 at 10.) Alman testified that Reed asked
him what he was doing in the park, and Alman told him that he was taking a break from
helping his mother move. Alman also told Reed that he and his partner had just moved
to Indiana after living in California for some time. (R.42-3 at 20.) Reed testified that
Alman’s mentioning his “partner” led him to assume that Alman was gay. (R.40-5 at
10.)

       There is some dispute about what else was discussed and what happened next.
Reed testified that Alman told him he liked to visit Hix Park for recreation, but Alman
testified that he had never visited Hix Park before that day. (R.40-5 at 11; R.42-3 at 7-
8.) According to Reed, Alman asked him if he had found the park through a website
called “squirt.org,” which Reed had never heard of before that day. (R.40-5 at 11.)
Reed told Alman that he was in the park to look for deer, and testified that Alman said
he had often seen deer in his mother’s yard nearby. According to Reed, Alman then
invited Reed to “take a walk down the trail” to see if they could find “a big buck.”
(R.40-5 at 12.) Alman disputes this, claiming that he got up and said he was going for
a walk and leaving the park, and that Reed then got up and followed him without
invitation. (R.42-3 at 20.) In any event, it is undisputed that Alman began walking
down a trail and that Deputy Reed followed him. According to Alman, Reed asked him
if there was a more secluded spot they could go after they had been walking a short
distance. (R.42-3 at 20-21.) Reed testified, however, that Alman veered off on his own
into a small clearing after they had walked a short distance. (R.40-5 at 12.)

       Once in the clearing, the two men began talking. Alman testified that he believed
that Reed was flirting with him, and that Reed told Alman that he “liked to watch”
(R.42-3 at 23). Reed testified that he told Alman he was “a little nervous” and “new to
this” type of activity. (R.40-5 at 13.) The two were standing close to one another when
Alman leaned forward and reached out and touched the zipper area on the front of
No. 10-2489        Alman, et al. v. Reed, et al.                                  Page 5


Reed’s crotch. The fact that Alman touched Reed’s crotch is undisputed. What is
disputed, however, is the nature of this touching. Alman testified that he “brushed” his
hand up against Reed’s zipper area and that he did not even consider it touching (R.42-3
at 22); Reed testified that Alman “grabbed” his crotch with his “whole cupped hand” for
“an instant, maybe a second or half a second.” (R.40-5 at 14.) Not expecting it, Reed
took a step back, and Alman went down on one knee. Alman testified that he was
positioned “sideways” to Reed when he went down on one knee, and that he pretended
to tie his shoe to demonstrate that “everything was okay.” (R.42-3 at 22, 23; R.42-15
at 58.) For his part, Reed did not mention whether Alman was facing him or facing
sideways, and he did not recall whether Alman pretended to tie his shoe, stating that
Alman’s hands may have been “by his side or maybe even resting on his knee.” (R.40-5
at 17.) At that point, Reed pulled out his badge and told Alman that he was under arrest.
(R.40-5 at 18.)

       Reed walked Alman back to the pavilion, where the other officers were waiting.
They handcuffed him and placed him in a squad car when one arrived. Reed reported
what had happened to Sgt. Swope, telling Swope that he arrested Alman after Alman had
“grabbed me or touched my crotch.” (R.40-5 at 20.) Swope testified that he did not ask
Reed if Alman had used force, whether Alman propositioned him, or whether Reed had
said or done anything that might have caused Alman to believe that he had consent to
touch Reed. (R.42-5 at 2.) On Swope’s orders, the car that Alman drove to the park was
towed away and impounded by the Westland Police Department. (R.40-5 at 22.)

       Alman was booked, and based on Swope’s instructions, Officer Thivierge wrote
Alman an Appearance Ticket, charging him with Accosting and Soliciting and Fourth
Degree Criminal Sexual Conduct (“CSC4”), which are Michigan state criminal offenses.
Alman was held in a cell at the Westland Police Department for about two hours and was
released after he posted a $150 bond.
No. 10-2489         Alman, et al. v. Reed, et al.                                    Page 6


B. Seizure of Barnes’s Vehicle

        On the day of his arrest, Alman drove to Hix Park in a car that belonged to his
partner, Michael Barnes. After the vehicle was towed and Alman was released from the
Westland Police Department, Alman was given several forms: a “Notice of
Impoundment of Vehicle Nuisance Abatement” form; a “Vehicle Seizure Push-
Off/Nuisance Abatement/Drag Racing, Notice of Seizure and Intent to Forfeit” form; and
a “Street Enforcement Team Notice of Impoundment of Vehicle Nuisance Abatement”
form. A few days after Alman’s arrest, Barnes traveled to Michigan to retrieve Alman
and his car. On October 17, 2007, after learning of his options, Barnes elected to redeem
his vehicle without contesting the seizure by paying the $900 redemption fee, as
described on the forms. Barnes signed an acknowledgment of the vehicle’s release and
his payment. That acknowledgment form stated, inter alia: “This precludes any action
in this case regarding the vehicle and constitutes a final settlement of the civil nuisance
abatement case. This settlement is independent and has no effect on any criminal
charges that may arise from the same incident.”

        With the release letter in hand, Barnes went to retrieve his car from the Westland
Police Department at around 2:00 p.m. on October 17. When he arrived, he was told that
the only person authorized to release the car was Sgt. Jedrusik, who was not at the
station at the time. (Barnes had been given a phone number and was instructed to call
before retrieving his car, but he did not call before going to the police station.) The desk
officer told Barnes that Officer Thivierge could release the vehicle, but that he would not
return to the station until 6:00 p.m. Barnes then went to the mayor’s office to complain.
After failing to meet with the mayor, Barnes contacted The Triangle Foundation, a
LGBT advocacy organization that has since been renamed Equality Michigan. Barnes
traveled back to the police station with a Triangle Foundation representative at around
6:00 p.m., and Barnes was able to retrieve his car after Swope, who was in the station
at the time, contacted Sgt. Jedrusik.
No. 10-2489        Alman, et al. v. Reed, et al.                                     Page 7


C. Dismissal of Charges Against Alman

       Alman initially was given an appearance ticket charging him with violating
Mich. Comp. Laws § 750.448, Soliciting and Accosting; and M.C.L. § 750.520e,
Criminal Sexual Conduct in the Fourth Degree (CSC4). Luke Skywalker, the assistant
county prosecutor assigned to the case, testified that he adjourned the case until his
office could check with Prosecutor Kym Worthy about whether to proceed with the case
in light of the County Prosecutor’s policy on prosecutions for sexual activity in public
places. (R.42-12 at 2.) That policy reads, in relevant part:

       The Prosecutor’s Office receives a large number of warrant requests and
       vehicle seizure requests in cases involving allegations of sexual conduct
       in public places. This policy statement is intended to provide local police
       agencies, criminal defense attorneys, and the public in general with the
       standards used by the Prosecutor in reviewing those requests.
       ...
       An unsolicited sexual act or exposure to a member of the public or an
       undercover police officer will bring a misdemeanor charge of indecent
       exposure pursuant to MCL 750.335a or disorderly person-obscene
       conduct pursuant to MCL 750.167(f). Charges will not be pursued by
       this office if the officer’s conduct was designed to make the individual
       believe the act was invited or consensual.

(R.50-11 at 2-3.) The policy statement also includes this disclaimer: “This policy does
not govern the enforcement of municipal ordinances. That responsibility rests with the
local police agencies and municipal attorneys. Nothing in this policy is intended to alter
the practices of local police agencies in enforcing violations under their respective local
ordinances.” (Id. at 3.)

       Skywalker testified that someone in the Wayne County Prosecutor’s Office told
him to dismiss the ticket against Alman. (R.42-12 at 3.) The state charges, accordingly,
were dismissed on the prosecutor’s motion during a hearing on December 20, 2007. On
the same day, after consulting Westland’s City Attorney, Officer Thivierge issued Alman
an appearance ticket for having violated two Westland municipal ordinances during his
encounter with Reed: § 62-97, being a disorderly person; and § 62-67, battery. Alman
No. 10-2489        Alman, et al. v. Reed, et al.                                   Page 8


moved to dismiss these charges, and at a hearing on May 20, 2008, a state court judge
dismissed the disorderly conduct charge. The judge stated that disorderly conduct
required some “exposure of bodily parts.” The judge then held an evidentiary hearing
regarding the battery charge and ultimately denied Alman’s motion to dismiss, clearing
the way for trial on that charge. On the day of the trial, however, none of the officers
appeared in court, so Judge Bokos dismissed the battery charge. The City Attorney did
not bring the charge again.

D. The Instant Litigation

       Plaintiffs initiated this action against the officers, the City, and the County on
September 27, 2008, seeking relief under 42 U.S.C. § 1983 for alleged violations of their
constitutional rights. Their Amended Complaint listed twelve counts: eight on behalf
of Alman; three on behalf of Barnes; and one on behalf of Alman, Barnes, and The
Triangle Foundation, collectively. Alman raised claims based on the Fourth Amendment
(Counts I-V), the Fourteenth Amendment (Counts VI and VII), and Michigan state
malicious prosecution law (Count VIII). Based on the impoundment of his vehicle,
Barnes raised Fourth Amendment claims (Counts IX and X) and a state law abuse of
process claim (Count XI). Finally, Plaintiffs together raised a First Amendment claim,
claiming that the Defendants’ conduct would chill other members of The Triangle
Foundation from engaging in protected activity (Count XII). Following discovery,
Defendants filed motions for summary judgment, which the district court granted on
October 7, 2010, dismissing all of the counts raised by Plaintiffs. In their timely appeal
Plaintiffs only address the district court’s dismissal of the counts related to Alman’s
arrest and the seizure of Barnes’s car.

                           II. STANDARD OF REVIEW

       We review a district court’s grant of a motion for summary judgment de novo,
construing the evidence and drawing all reasonable inferences in favor of the non-
moving party. Ireland v. Tunis, 113 F.3d 1435, 1440 (6th Cir. 1997). Summary
judgment is proper if, after viewing the evidence that way, there are no genuine issues
No. 10-2489        Alman, et al. v. Reed, et al.                                 Page 9


of material fact, and the moving party is entitled to judgment as a matter of law.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R.
Civ. P. 56(a). The moving party has “the burden of showing the absence of a genuine
issue as to any material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
A genuine issue of material fact exists when there are “disputes over facts that might
affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). When faced with a properly-supported motion for
summary judgment, the non-movant must provide “significant probative evidence” to
defeat the motion. Id. In reviewing the record at the summary-judgment stage, we must
not make credibility determinations, weigh the respective value of evidence, or resolve
material factual disputes. In analyzing the evidence offered, we of course must draw all
reasonable inferences in favor of the non-moving party, but that does not mean that we
must credit and accept the non-movant’s characterization of an otherwise disputed
factual occurrence that affects a legal determination. When faced with such a dispute
regarding a material fact, we must send the case to a jury.

                                  III. DISCUSSION

       This appeal raises several issues for our review. The district court granted
summary judgment for Defendants-Appellees after finding that probable cause existed
for the offenses that Alman was charged with violating. Accordingly, we first examine
whether probable cause existed for each of those offenses. Second, we address whether
Sgt. Swope is entitled to qualified immunity on the claims against him. Third, we
address whether Alman’s claim of malicious prosecution was properly dismissed.
Fourth, we address whether the claims based on municipal liability under § 1983 were
properly dismissed. Fifth, we address Barnes’s claim that the seizure of his vehicle
violated the Fourth Amendment. And finally, we address whether Barnes’s claim for
abuse of process was properly dismissed.
No. 10-2489        Alman, et al. v. Reed, et al.                                  Page 10


A. Existence of Probable Cause

       Alman was arrested and eventually charged with four different offenses: two
Michigan state offenses, (1) criminal sexual conduct in the fourth degree, M.C.L.
§ 750.520e, and (2) solicitation or accosting, M.C.L. § 750.448; and two City of
Westland municipal offenses, (3) being a disorderly person, Westland Mun. Ord. § 66-
97, and (4) battery, Westland Mun. Ord. § 62-67. Those charges eventually were all
dismissed, and Alman claims that his Fourth Amendment rights were violated because
his initial arrest was not supported by probable cause, yielding civil liability under
§ 1983. The Fourth Amendment prohibits unreasonable searches and seizures, including
arrests, but “a warrantless arrest by a law officer is reasonable under the Fourth
Amendment where there is probable cause to believe that a criminal offense has been or
is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The Supreme
Court has explained that “‘probable cause’ to justify an arrest means facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979). Whether Alman’s constitutional rights were
violated (and by extension, the viability of his § 1983 claims) therefore hinges
principally on whether there was probable cause to arrest Alman in the first place.

       “When no material dispute of fact exists, probable cause determinations are legal
determinations that should be made” by the court. Hale v. Kart, 396 F.3d 721, 728 (6th
Cir. 2005). But “[i]f disputed factual issues underlying probable cause exist, those issues
must be submitted to a jury for the jury to determine the appropriate facts.” Id. “Given
then, that probable cause is a legal question, but that underlying factual disputes related
to probable cause must be submitted to a jury, our inquiry on review must be whether
sufficient facts are in dispute with respect to probable cause to require fact-finding by
a jury here.” Id. at 729.

       The district court held that probable cause existed for all of these offenses as a
matter of law, rendering Alman’s arrest and the seizure of Barnes’s car lawful. Having
No. 10-2489         Alman, et al. v. Reed, et al.                                   Page 11


found probable cause, the district court held that Counts I, II, III, IV, V, VIII, and IX all
failed, and accordingly granted summary-judgment for Defendants-Appellees on those
counts. We examine each charge separately to determine whether the undisputed facts
establish probable cause.

        1.      Criminal Sexual Conduct in the Fourth Degree

        Relevant to this case, the Michigan offense of criminal sexual conduct in the
fourth degree (“CSC4”), a misdemeanor, occurs when an individual “engage[s] in sexual
contact with another person and if any of the following circumstances exist:
. . . (b) Force or coercion is used to accomplish the sexual contact. Force or coercion
includes, but is not limited to, any of the following circumstances: . . . (v) When the
actor achieves the sexual contact through concealment or by the element of surprise.”
M.C.L. § 750.520e. For purposes of the statute, “sexual contact” includes “the
intentional touching of the victim’s or actor’s intimate parts or the intentional touching
of the clothing covering the immediate area of the victim’s or actor’s intimate parts.”
M.C.L. § 750.520a. Alman effectively concedes that his touching of Reed’s crotch
constitutes “sexual contact,” (Appellants’ Br. 34), so the only issue is whether Alman
used “force or coercion” as defined in the statute to accomplish that contact. The district
court held that the officers had probable cause for this offense because “Reed testified
that Alman’s actions surprised him and he backed away,” making it reasonable to
believe Alman achieved the sexual contact through concealment or the element of
surprise. (R.57 at 27.) This was error.

        Alman argues that, based on the available facts, no reasonable officer could have
believed that Alman used force or coercion to touch Reed’s crotch because the touching
itself was not forceful and he did not achieve the contact by concealment or surprise.
(Appellants’ Br. at 34-38.) Defendants-Appellees argue that the act of touching Reed’s
crotch itself constituted “force” and that, in any event, Alman touched Reed by
concealment or surprise because he touched Reed without warning and Reed testified
that he was “surprised.” (Reed Br. at 23; Westland Br. at 24-25.)
No. 10-2489           Alman, et al. v. Reed, et al.                                         Page 12


        We first address whether the touching itself constituted force under the statute.
Michigan law establishes that “force or coercion” in the criminal sexual conduct statute
carries its ordinary meaning, and refers to touching achieved by power or compulsion,
or accompanied by circumstances “sufficient to create a reasonable fear of dangerous
consequences,” and does not encompass any and all physical contact. People v. Berlin,
507 N.W.2d 816, 817-19 (Mich. Ct. App. 1993) (citations and quotations omitted).
Drawing all inferences in Alman’s favor, as we must, no reasonable officer in Reed’s
position could have believed that the brief touch here was achieved by force or coercion.
The dispute between Alman and Reed regarding the nature of the touching (i.e., whether
Alman “brushed” his hand against Reed’s crotch or whether Alman “grabbed” Reed’s
crotch with his “whole cupped hand” for “an instant, maybe a second or half a second”)
is immaterial in this case. Under either characterization, there is no indication that
Alman achieved the contact in question by power or compulsion, and there is nothing
in the record describing circumstances that would be sufficient to create a reasonable
fear of dangerous consequences. There is no evidence that Alman physically hurt Reed,
blocked Reed’s exit path or led him to a place with limited access, made threatening
gestures, resisted when Reed backed away, or did or said anything else to impose his
will. Cf. id. at 819 (no force or coercion when defendant “‘took’ [victim’s] hand and
‘placed it’ on his crotch” and where victim “stated that he did not grab it or pull it and
that he did not hurt her” and that defendant “did not resist at all when she pulled her
hand away and that he did not threaten her”). Rather, it appears Alman reached out and
touched Reed’s crotch briefly while engaged in a flirtatious conversation with Reed, and
that he dropped down to his knee and turned sideways as soon as Reed backed away.
Under the circumstances, the contact here would not support a reasonable belief that the
“force” prong was satisfied, even under Reed’s characterization of the contact.
Accordingly, there could be no probable cause that Alman committed CSC4 based on
the touching itself being forceful.1



        1
         We emphasize that this is a narrow holding. Future cases may present such attendant
circumstances that would create a reasonable fear of dangerous consequences to support probable cause
that CSC4 had been committed.
No. 10-2489           Alman, et al. v. Reed, et al.                                            Page 13


         Regarding whether Alman achieved sexual contact by “concealment or by the
element of surprise,” Michigan cases suggest that, under CSC4, “concealment” and
“surprise” do not refer to the subjective feeling of the victim, but rather the objective
nature of the defendant’s approach. In that vein, the statute typically prohibits someone
from achieving sexual contact by sneaking up on someone while they are unaware,
facing another direction, or sleeping. See, e.g., People v. Vaidya, 2011 WL 14469
(Mich. Ct. App. Jan. 4, 2011) (CSC4 committed when defendant touched victim’s
genitals while she was lying face-down during a massage); People v. Lowery, 2010 WL
3604760 (Mich. Ct. App. Sep. 16, 2010) (CSC4 when defendant approached victim from
behind and pressed his erection against victim’s back and buttocks); People v. Hubbell,
2008 WL 867967 (Mich. Ct. App. Apr. 1, 2008) (CSC4 when defendant touched his
penis to the mouth of the victim, who was sleeping at the time); People v. Bazzy, 2006
WL 3733272 (Mich. Ct. App. Dec. 19, 2006) (CSC4 where defendant grabbed the
victim’s buttocks and “waited to touch the victim until she had her back turned”). This
does not mean that it is impossible for someone to commit CSC4 when they are facing
the victim, and one can imagine any number of scenarios where, based on the context,
CSC4 might be committed when a defendant makes sexual contact with someone
without sneaking up on them or touching them while they are not looking.2 It simply
means that the typical case involves a victim caught by surprise based on the defendant’s
surreptitious approach.

         In this case, it is clear that Alman did not sneak up on Reed or touch him while
he was unaware or looking the other way; rather, Alman reached out and touched Reed
when they were standing near each other and facing one another, engaged in a flirtatious
conversation. Moreover, viewing the facts in the light most favorable to Alman, this was
not a situation in which CSC4 may have been committed without a surreptitious
approach. Alman did not “engag[e] in sexual contact with a victim in circumstances in


         2
          As posited during oral argument, one such example might involve a patron at a restaurant
reaching out and making sexual contact with a waitress when she asks to take the patron’s order. See also
People v. Kurtz, 2005 WL 2372038 (Mich. Ct. App. Sep. 27, 2005) (CSC4 when a defendant “took his
middle finger and placed it up [his coworker’s] rear end” and then “placed his finger near his nose and
said, ‘um sweet.’”).
No. 10-2489         Alman, et al. v. Reed, et al.                                 Page 14


which it would be unexpected,” People v. Tran, No. 236621, 2003 WL 21362988, at *3
(Mich. Ct. App. June 12, 2003), or in which someone “would not normally expect
[sexual contact],” In re Craven, No. 260511, 2006 WL 1714019, at *2 (Mich. Ct. App.
June 22, 2006). The contact occurred in a secluded area in the midst of a flirtatious
encounter rather than, for example, on a bus, in the workplace, or at a restaurant. A
reasonable person in the situation presented in this case could expect some sort of sexual
contact to occur. Without more probative facts, it cannot be said that there was probable
cause to believe that Alman achieved sexual contact by concealment or surprise. As the
Michigan Supreme Court stated, “[i]f the [Michigan] Legislature had wanted to make
all unconsented-to sexual contact punishable, with or without force, it should have said
so.” People v. Patterson, 410 N.W.2d 733, 743 (Mich. 1987). Given the statute’s
orientation and scope, no reasonable officer in Reed’s position would have thought that
Alman had committed or was about to commit CSC4 based on the record before us, and
it was error to hold that probable cause existed as a matter of law. Accordingly, we
reverse the district court on that issue.

        2.      Solicitation or Accosting

        The Michigan offense of solicitation or accosting provides for criminal liability
for: “A person 16 years of age or older who accosts, solicits, or invites another person
in a public place . . . , by word, gesture, or any other means, to commit prostitution or
to do any other lewd or immoral act.” M.C.L. § 750.448. The district court held that the
officers had probable cause as a matter of law because “an Officer in Deputy Reed’s
position could reasonably have interpreted Alman’s actions as an invitation to do a
‘lewd’ act.” (R.57 at 28.) This also was error.

        Drawing all reasonable inferences in Alman’s favor, the record indicates that
Alman and Reed proceeded to a clearing in the woods and were engaged in a sexually
flirtatious conversation when Alman reached out and touched Reed’s crotch. It also
indicates that, after Reed backed up, Alman dropped to one knee facing sideways to
Reed and either kept his hands at his side or pretended to tie his shoe. There is some
dispute about whether Reed asked Alman if they could go to a more secluded spot on the
No. 10-2489            Alman, et al. v. Reed, et al.                             Page 15


trail or whether Alman veered off into the secluded clearing on his own, and about
whether or not Alman pretended to tie his shoe. But these disputes are immaterial;
without more probative facts to work from, no reasonable officer could have interpreted
these actions (in either alternative) as an invitation to commit a lewd or immoral act in
public. Alman correctly argues that “it could also be inferred from Alman’s conduct that
he was merely indicating sexual interest,” and that a reasonable officer “would have
needed more evidence of Alman’s intentions before concluding that he was inviting
Reed” to do a public lewd act. (Appellants’ Br. at 40.) Aside from engaging in
flirtatious conversation and his brief touching of Reed’s crotch, there is nothing in the
record that evinces such intentions on Alman’s part. To the contrary, the only objective
indications in the record about a state of mind relate to Reed, who stated that he was
“new to this” and that he “liked to watch.” Under these circumstances, there was no
probable cause. To hold otherwise would require making assumptions about Alman’s
intentions that the record does not substantiate. Accordingly, we reverse the district
court on this issue.

       3.      City of Westland Disorderly Person Ordinance

       Alman was charged with violating Westland’s disorderly person ordinance after
the state charges were dismissed. That ordinance makes it a misdemeanor for someone
to be a “disorderly person,” which the ordinance defines as, inter alia, “A person who
is engaged in indecent or obscene conduct in a public place.” Westland Mun. Ord. § 62-
97(b)(6). The ordinance tracks the language of M.C.L. § 750.167(1)(f), which defines
“disorderly person” identically. The district court summarily held that the Westland
police officers had probable cause for this offense because “nothing on the face of this
ordinance requires indecent exposure or the application of physical force, and Plaintiffs
have come forward with no authority requiring such a showing for a violation of the
ordinance.” (R.57 at 30.)

       Alman argues that there was no probable cause supporting this charge because
the Michigan disorderly person statute “has been construed as proscribing public
indecency, ‘a concept generally associated with conduct consisting of exposing private
No. 10-2489         Alman, et al. v. Reed, et al.                                Page 16


body parts when one reasonably might expect that they would be viewed unwantedly by
others.’” (Appellants’ Br. at 41) (quoting United States v. Whitmore, 314 F. Supp. 2d
690, 698 (E.D. Mich. 2004) (citing In re Certified Question, 359 N.W.2d 513, 518
(Mich. 1984).) The Westland defendants do not offer any serious argument in response,
and in our view, Alman is correct. The statute is not clearly applicable on its face, and
Michigan cases analyzing the statute indicate that the typical indecent person case
involves unwanted exposure of private body parts. Drawing all reasonable inferences
in Alman’s favor, the record is devoid of any evidence that would lead a reasonable
police officer to believe that Alman was engaged in, or was about to engage in, such
conduct. We have uncovered no authority indicating that a brief touching of another
person’s crotch during a flirtatious conversation constitutes indecent or obscene conduct,
and based on the record before us, it cannot be said that the Westland police officers had
probable cause that Alman was about to expose himself. Accordingly, we reverse the
district court on this issue.

         4.     City of Westland Battery Ordinance

         Alman also was charged with violating Westland’s battery ordinance after his
state charges were dismissed. That ordinance states: “No person shall with force or
violence touch or put some substance in motion which touches another person or
something closely connected with another person.” Westland Mun. Ord. § 62-67. The
district court held that there was no constitutional problem with charging Alman under
this provision because there was probable cause for the disorderly person charge, and
“probable cause to believe that a person has committed any crime will preclude an
unlawful arrest claim, even if the person was arrested on additional or different charges
for which there was no probable cause.” (R.57 at 31) (emphasis in original.) This was
error.

         As explained above, the Westland officers did not have probable cause to believe
that Alman violated the state offenses or the Westland disorderly person ordinance, and
so the officers must have independently had probable cause supporting this charge to
avoid a constitutional violation. They did not. Michigan cases establish that the term
No. 10-2489            Alman, et al. v. Reed, et al.                                             Page 17


“force” requires that a person exert strength or power over another person. (Appellants’
Br. at 43-44.) As explained above, the record does not support a reasonable belief that
Alman used “force or violence” to accomplish the touching. Accordingly, there was no
probable cause to believe that Alman had committed this offense, and we reverse the
district court on this issue. Because we find that there was no probable cause supporting
any of the charges brought against Alman, we reverse the district court’s dismissal of
Count I of the Amended Complaint.3

B. Qualified Immunity

         Sergeant Swope and Officer Thivierge argue that, even if Alman’s arrest was not
supported by probable cause, they are entitled to qualified immunity based on their
reasonable mistakes.4 The district court did not address any of the qualified immunity
arguments below because its conclusion that probable cause existed effectively decided
the case. Plaintiffs-Appellants have alleged constitutional violations only against
Swope, and so we limit our qualified immunity inquiry to Swope.5

         Under the doctrine of qualified immunity, government officials
         performing discretionary functions generally are shielded from liability
         for civil damages insofar as their conduct does not violate clearly
         established statutory or constitutional rights of which a reasonable person
         would have known. Determining whether government officials are
         entitled to qualified immunity generally requires two inquiries: First,
         viewing the facts in the light most favorable to the plaintiff, has the
         plaintiff shown that a constitutional violation has occurred? Second, was


         3
           We recognize that an officer’s “subjective reason for making the arrest need not be the criminal
offense as to which the known facts provide probable cause,” Devenpeck, 543 U.S. at 153, and that
“‘[k]nowledge of the precise crime committed is not necessary to a finding of probable cause provided that
probable cause exists showing that a crime was committed,’” United States v. Harness, 453 F.3d 752, 755
(6th Cir. 2006) (quoting United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991)). Indeed, a
wrongful-arrest claim can fail if probable cause existed for a crime other than the crime for which the
individual was arrested or charged. Here, however, the defendants argue only that probable cause existed
as to the four crimes for which Alman was charged. They offer no other crime for which probable cause
may have existed.
         4
          The Wayne County Defendants did not raise a qualified immunity defense below or on appeal
and therefore have waived any such argument. See United States v. Reed, 167 F.3d 984, 993 (6th Cir.
1999).
         5
          Alman raised only a state law malicious prosecution claim against Thivierge, which is discussed
in the next section.
No. 10-2489            Alman, et al. v. Reed, et al.                                             Page 18


         the right clearly established at the time of the violation? These prongs
         need not be considered sequentially.

Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir. 2010) (internal quotation marks,
citations, and footnotes omitted). Other Sixth Circuit cases have employed a third step,
whereby the court “further considers whether a reasonable person would have known
about the right and whether the official’s actions were ‘objectively unreasonable.’
However, more recent decisions apply the two-step test provided above.” Id. at 247 n.4
(citations omitted).6 In answering these questions, we must determine whether the right
involved was clearly established “in light of the specific context of the case, not as a
broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on
other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

         As explained above, Alman was arrested without probable cause, which is a
violation of the Fourth Amendment, and it is “clearly established that [an] arrest without
probable cause violates the Fourth Amendment.” Leonard v. Robinson, 477 F.3d 347,
355 (6th Cir. 2007). Swope argues that he is entitled to immunity because Alman has
not established that Swope’s belief that probable cause existed was unreasonable.
(Westland Br. at 42-43.) In support, he points to the “conversation between Alman and
Reed, as well as Alman’s act of grabbing, fondling, touching, or brushing up against
Reed’s genitals, without Reed’s consent.” (Id. at 43.) In our view, Swope’s actions
were unreasonable, and he did not have probable cause. Swope testified that he could
not hear the conversation between Reed and Alman and stated that he did not ask any
follow-up questions before completing Alman’s arrest after Reed told him that Alman
had “grabbed me or touched my crotch.” (R.42-5 at 2; R.40-5 at 20.) Without more
facts at his disposal, he had no reasonable basis to believe that any of the offenses that
Alman was charged with had occurred or were about to occur. Because Alman’s clearly
established Fourth Amendment rights were violated, qualified immunity does not shield
Sgt. Swope in this case. See Leonard, 477 F.3d at 355 (“We will not grant immunity to

         6
           As is the case with excessive force § 1983 cases, see Grawey v. Drury, 567 F.3d 302, 309
(6th Cir. 2009), we might consider this third step to be subsumed within the first step because deciding
whether a constitutional violation occurred based on a lack of probable cause necessarily involves deciding
whether the arresting officers’ actions were objectively reasonable under the circumstances.
No. 10-2489        Alman, et al. v. Reed, et al.                                  Page 19


a defendant if no reasonably competent peace officer would have found probable
cause.”)

C. Malicious Prosecution

       Alman brought a state law malicious prosecution claim, an intentional tort,
against Thivierge for issuing the ticket invoking Westland’s municipal ordinances. The
district court dismissed this claim based on its finding that probable cause existed.
Malicious prosecution claims are “difficult to maintain.” Matthews v. Blue Cross &
Blue Shield of Michigan, 572 N.W.2d 603, 609 (Mich. 1998). To make out a case of
malicious prosecution under Michigan law, the “plaintiff has the burden of proving
(1) that the defendant [had] initiated a criminal prosecution against him, (2) that the
criminal proceedings terminated in his favor, (3) that the private person who instituted
or maintained the prosecution lacked probable cause for his actions, and (4) that the
action was undertaken with malice or a purpose in instituting the criminal claim other
than bringing the offender to justice.” Id. at 609-10. This issue was not thoroughly
briefed on appeal, and the only argument made below was Thivierge’s argument that
probable cause existed for those offenses. Alman only addressed the argument in his
reply brief, arguing that Thivierge acted with “malice and with deliberate indifference”
when he wrote the local ordinance tickets without sufficient training and without having
personal knowledge of the events in question. (Reply Br. 18-20.) Despite the lack of
extensive briefing on this issue, we conclude that Alman has not established the elements
of the tort and that his malicious prosecution claim was properly dismissed. Specifically,
Alman has not pointed to any evidence establishing malice. (A lack of probable cause
itself cannot constitute malice, as that would render the third and fourth elements of the
tort duplicative.) Accordingly, we affirm the dismissal of this claim (Count VIII), albeit
on different grounds than the district court identified.

D. Municipal Liability Under § 1983 for Failure to Train

       Alman raised § 1983 claims against Sgt. Swope, Wayne County, and the City of
Westland based on their alleged failure to train police officers on how to enforce the
No. 10-2489        Alman, et al. v. Reed, et al.                                  Page 20


laws related to sexual activity (Counts II, III, and IV). The Supreme Court has approved
municipal liability based on § 1983 when “the [municipal] action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers,” or where such
actions emanate from informal governmental custom. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 (1978). In other words, the constitutional violation must have sprung
from “official policy” in one form or another. Id. at 694. As such, local government
units cannot be held liable mechanically for their employees’ actions under a respondeat
superior theory. Id. at 691. The plaintiff must “demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bryan
Cnty. Bd. of Comm’rs v. Brown, 520 U.S. 397, 404 (1997). He “must show that the
municipal action was taken with the requisite degree of culpability and must demonstrate
a direct causal link between the municipal action and the deprivation of federal rights.”
Id. Applying that principle, the Supreme Court has held that a municipality can be liable
under § 1983 on a failure-to-train theory when the “failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact.” City of
Canton v. Harris, 489 U.S. 378, 388 (1989). This happens in the unusual case where
“such inadequate training can justifiably be said to represent ‘city policy.’” Id. at 390.
We have characterized this standard as requiring the plaintiff to prove “three distinct
facts”: “that a training program is inadequate to the tasks that the officers must perform;
that the inadequacy is the result of the city’s deliberate indifference; and that the
inadequacy is ‘closely related to’ or ‘actually caused’ the plaintiff’s injury.” Hill v.
McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citing City of Canton, 489 U.S. at 90-91).

       The district court, having concluded that probable cause existed for Alman’s
arrest and that there was no constitutional violation, did not address this issue. Alman
argues that “Westland not only failed to train Reed, [but] his supervisor Sgt. Swope
participated in that wrongful conduct, resulting in supervisory liability” because “Swope
himself was not properly trained about the elements of the offenses” involved. (Reply
Br. at 22.) Specifically, Alman argues that Swope never received specific training about
the sexual activity laws or what “accosting” meant, which created a likelihood that
No. 10-2489            Alman, et al. v. Reed, et al.                                              Page 21


constitutional violations would occur and recur. (Reply Br. at 22-23.) But that in itself
does not constitute deliberate indifference, as there is no allegation that Westland (or
Wayne County) officials had any specific awareness of the potential for violations. This
allegation is too generalized to support municipal liability. See City of Canton, 489 U.S.
at 391 (rejecting liability when an “otherwise sound program has occasionally been
negligently administered,” and explaining that “Neither will it suffice to prove that an
injury or accident could have been avoided if an officer had had better or more training,
sufficient to equip him to avoid the particular injury-causing conduct. Such a claim
could be made about almost any encounter resulting in injury, yet not condemn the
adequacy of the program to enable officers to respond properly to the usual and recurring
situations with which they must deal.                 And plainly, adequately trained officers
occasionally make mistakes; the fact that they do says little about the training program
or the legal basis for holding the city liable.”) Accordingly, we affirm the dismissal of
Counts II, III, and IV.

E. Barnes’s Fourth Amendment Claim

         Plaintiff-Appellant Barnes raised a § 1983 claim based on the seizure of his car,
which Alman drove to Hix Park on the day he was arrested (Count IX7). The seizure of
a vehicle in connection with an arrest not supported by probable cause violates the
Fourth Amendment in the same manner that the arrest itself violates the Fourth
Amendment. “In the ordinary case, the [Supreme] Court has viewed a seizure of
personal property as per se unreasonable within the meaning of the Fourth Amendment
unless it is accomplished pursuant to a judicial warrant issued upon probable cause and
particularly describing the items to be seized.” United States v. Place, 462 U.S. 696, 701
(1983). There are, of course, exceptions to that rule, which permit police seizures of
property when the exigencies of the situation demand it, see id. at 701-02, such as during
a search incident to arrest, see Arizona v. Gant, 556 U.S. 332, 338-39 (discussing that
and other exceptions). But those exceptions do not disturb the rule that if an arrest

         7
          Barnes also raised a conspiracy claim against Wayne County and Westland, but he has not
addressed the dismissal of that claim on appeal, so we do not disturb the district court’s dismissal of that
claim (Count X).
No. 10-2489             Alman, et al. v. Reed, et al.                                               Page 22


violates the Fourth Amendment, the subsequent seizure of property based on the invalid
arrest violates it as well.

         In Ross v. Duggan, this Court addressed a situation similar to the one in this case.
402 F.3d 575 (6th Cir. 2004). There, several plaintiffs challenged the City of Detroit’s
seizure of their vehicles during their arrests for prostitution-related offenses. Id. at 578.
The City justified its seizure based on Michigan’s nuisance abatement statute, and we
held that the statute permitted the seizure of vehicles used to transport someone to the
scene of the crime. See id. at 580, 582-83. But Ross does not decide the case before us
because Ross involved plaintiffs who had effectively conceded that probable cause
existed for their offenses. See id. at 584-87 (holding that the existence of probable cause
“furnished constitutional justification for the temporary pre-forefeiture-hearing
impoundments of the subject vehicles”).

         Of course, Ross also held that there was nothing constitutionally deficient about
Michigan’s nuisance abatement statutes, id. at 582-83, and so Barnes’s argument to the
contrary, and his argument that Ross was wrongly decided, (Appellants’ Br., at 50-53),
are meritless. Similarly, Ross forecloses Barnes’s argument that the Michigan nuisance
statute does not permit the type of impoundment that took place here, since Alman
traveled to the scene of his alleged crime in Barnes’s car. See id. But although the
statute and the Constitution may allow the state to seize a vehicle during an arrest for
sexual conduct offenses, neither authorizes such a seizure without probable cause.8

         The district court dismissed this claim based on its finding that probable cause
existed for Alman’s arrest. (R.57 at 35.) As explained above, this was error because


         8
            The parties argue about whether Barnes has waived his right to seek relief for any constitutional
violation based on his payment of a $900 settlement fee. We conclude that Barnes has not waived any
such right. The acknowledgment letter that Barnes signed upon paying the fee states: “The Wayne County
Prosecutor’s Office has explained to the understanding [sic] owner(s) his/her/their right to contest the
abatement of the vehicle pursuant to MCL 600.3801 et seq. and the undersigned agrees to wave [sic] the
right to contest. . . . This precludes any action in this case regarding the vehicle and constitutes a final
settlement of the civil nuisance abatement case. This settlement is independent and has no effect on any
criminal charges that may arise from the same incident.” (R.40-8 at 4.) In our view, this waiver refers
only to the right to contest the abatement under the Michigan statute, and does not implicate constitutional
rights. It is not sufficiently specific to constitute a waiver of constitutional rights, and such waivers “are
not to be presumed lightly.” Barden Detroit Casino, LLC v. City of Detroit, 230 F.3d 848, 855 (6th Cir.
2000). We make no such presumption here.
No. 10-2489        Alman, et al. v. Reed, et al.                                   Page 23


Alman’s arrest was not supported by probable cause. Accordingly, we reverse the
district court’s dismissal of Count IX.

F. Barnes’s Abuse of Process Claim

       Barnes raised a state law claim for abuse of process (Count XI) based on the
seizure of his vehicle and the requirement that he pay a $900 fee before the car was
released. To establish abuse of process under Michigan law, a plaintiff “must plead and
prove (1) an ulterior purpose, and (2) an act in the use of process which is improper in
the regular prosecution of the proceeding.” Friedman v. Dozorc, 312 N.W.2d 585, 594
(Mich. 1981). In other words, the plaintiff must show that the defendant used a proper
legal procedure for a purpose collateral to its intended use, and there must be some
corroborating act that demonstrates the ulterior purpose. Bonner v. Chicago Title Ins.
Co., 487 N.W.2d 807, 812 (Mich. Ct. App. 1992). In an earlier case, a Michigan court
explained:

       The improper purpose usually takes the form of coercion to obtain a
       collateral advantage, not properly involved in the proceeding itself, such
       as the surrender of property or the payment of money, by the use of the
       process as a threat or a club. There is, in other words, a form of extortion,
       and it is what is done in the course of negotiation, rather than the
       issuance or any formal use of the process itself, which constitutes the
       tort.

Three Lakes Ass’n v. Whiting, 255 N.W.2d 686, 690 (Mich. Ct. App. 1977).

       The district court dismissed this claim based primarily on its finding that
probable cause supported Alman’s arrest. (R.57 at 37-38.) Alman argues that the
Wayne County Prosecutor’s Office “used the nuisance abatement process to extort the
payment of money” from Barnes “for its own enrichment,” (Appellants’ Br. at 55-56),
which constitutes an ulterior purpose and therefore an abuse of process. Alman does not
cite any authority for this proposition, and he has not pointed to any evidence in the
record that demonstrates that Wayne County is engaged in a “form of extortion” through
the nuisance abatement law. All he offers is the fact that impounded vehicles are not
released without a settlement fee being paid by the owner, and that the fee is shared
No. 10-2489        Alman, et al. v. Reed, et al.                                Page 24


among the various governmental entities. That is insufficient to establish an abuse of
process claim, and we affirm the district court’s dismissal of this claim (Count XI).

                                  IV. CONCLUSION

       The judgment of the district court is REVERSED in part and AFFIRMED in part,
and the case is REMANDED for further proceedings consistent with this opinion.
No. 10-2489        Alman, et al. v. Reed, et al.                                 Page 25


            __________________________________________________

             CONCURRING IN PART AND DISSENTING IN PART
            __________________________________________________

       BOGGS, Circuit Judge, concurring in part and dissenting in part. This is a
difficult and convoluted case, and the court’s opinion generally makes an excellent
exegesis of the different statutes and principles involved here. In brief, on the general
outline of the facts as presented here, we have a fairly garden-variety police sting
operation aimed at public-morals offenses, a tactic that many may find distasteful. In
this case, as appropriately discussed at pages 4–5 of the court’s opinion, the plaintiff
Alman did, without consent or invitation, touch the officer’s crotch. However, the exact
nature and contours of that touching are disputed, as is the import of the plaintiff’s
immediately subsequent kneeling.

       The court’s discussion, which is appropriate and necessary under these
circumstances, of the Michigan law on “force” or “surprise” makes a valiant effort, at
pages 11–13 to hold that there was no probable cause for an arrest in these
circumstances, while not vitiating the applicability of the Michigan CSC4 statute to
other cases of what might generally be called “groping.”

       In the end, I find this effort successful, with two caveats. First, as the court’s
opinion repeatedly emphasizes, we are taking all facts and inferences in the plaintiff’s
favor, and on further development, either a fact-finder or a fact-based motion for
summary judgment may dispose of this suit in favor of defendants. Second, the opinion
correctly emphasizes on page 14 that the error here was holding that probable cause
“existed as a matter of law,” based only on the admitted fact some degree of genital
touching.

       However, under these circumstances, I disagree with the court’s opinion as to
qualified immunity for Sargent Swope. His involvement was only to authorize an arrest,
based on the facts as reported to him by Officer Reed. Given the intricacy of the court’s
analysis (albeit ultimately correct), I cannot agree that we must label Officer Swope as
No. 10-2489       Alman, et al. v. Reed, et al.                                 Page 26


outside the ambit of “reasonably competent police officer” because he made the
judgment on the spot, under the circumstances, that there was probable cause.

       With that exception, I concur in the judgment of the court.
