                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0388p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                         X
                                                          -
 DENNIS PEET (05-1371); JEEMELL SPENCER

                                 Plaintiffs-Appellants, -
 (05-1373),
                                                          -
                                                          -
                                                              Nos. 05-1371/1373

                                                          ,
            v.                                             >
                                                          -
                                                          -
                                                          -
 CITY OF DETROIT; DWIGHT PEARSON; LOVIER,

                                                          -
 Sergeant; SULLIVAN, Sergeant; HOWARD PHILLIPS;

                                                          -
 PETERSEN, Sergeant; DEBORAH NIX; JACKSON,
                                                          -
 Lieutenant; J. FISHER; BARBARA SIMON; WILLIAM
                                                          -
 RICE; CHARLES HOWARD; MARK AMOS; ED
 RUDONI; VISBARA, Sergeant; CATHERINE ADAMS,              -
                                                          -
                                Defendants-Appellees. -
 Jointly and Severally,

                                                          -
                                                          -
                                                         N
                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                Nos. 03-72480; 03-71470—John Corbett O’Meara, District Judge.
                                           Argued: August 1, 2006
                                 Decided and Filed: September 25, 2007
         Before: GIBBONS and ROGERS, Circuit Judges; HOLSCHUH, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Christopher J. Trainor, LAW OFFICES OF CHRISTOPHER TRAINOR &
ASSOCIATES, White Lake, Michigan, for Appellants. Linda D. Fegins, CITY OF DETROIT LAW
DEPARTMENT, Detroit, Michigan, for Appellees. ON BRIEF: Christopher J. Trainor, LAW
OFFICES OF CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, Kevin L.
Laidler, LAW OFFICES OF KEVIN LAIDLER, Pontiac, Michigan, for Appellants. Linda D.
Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellees.




        *
          The Honorable John D. Holschuh, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                         1
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                        Page 2


      ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined.
HOLSCHUH, D. J. (pp. 12-27), delivered a separate opinion concurring in part and dissenting in
part.
                                        _________________
                                            OPINION
                                        _________________
        ROGERS, Circuit Judge. This appeal is composed of two related cases. Both cases are
actions under 42 U.S.C. § 1983 seeking damages from individual Detroit police officers for their
alleged unconstitutional seizure and malicious prosecution of the plaintiffs. The plaintiffs, Dennis
Peet and Jeemell Spencer, further seek to hold the City of Detroit liable for the officers’ alleged
constitutional violations. On appeal, the plaintiffs seek to overturn the district court’s grant of
summary judgment in favor of Dwight Pearson and the City of Detroit. For the reasons given below,
we affirm.
                                                   I.
        On the night of April 27, 2000, Detroit police officers Robert Petersen and Charles Howard
responded to a call reporting shots fired in progress at the Coney Island restaurant located at 12521
Mack Avenue in Detroit. When they arrived, the officers discovered Reed Byrd suffering from a
gunshot wound to the abdomen. Paramedics arrived and transported Byrd to the hospital, where he
died at 11:31 p.m. The Wayne County Medical Examiner’s Office ruled Byrd’s death a homicide.
When the officers arrived at the scene of the shooting, they also discovered Leonard McGlory, who
had suffered multiple gunshot wounds to his legs. McGlory was transported to the hospital for
treatment.
        Investigator Pearson of the Detroit police conducted an investigation to determine the
identity of the shooter and any accomplices. Investigator Pearson identified the plaintiffs, Dennis
Peet and Jeemell Spencer, as suspected accomplices by relying, primarily, on Spencer’s pager
number, which an eyewitness, Feanda Wilson, provided. The day after the shooting, on April 28,
2000, the police took Peet and Spencer into custody for questioning and put them in a live line-up
to see whether witnesses could identify Peet and Spencer. Wilson identified them as accomplices
of the murderer. Peet and Spencer remained in jail from April 28, 2000, until their acquittal of all
charges on March 28, 2001.
     A. Information That Police Had Prior To Taking Peet and Spencer Into Custody
         The record contains the following evidence as to what the police knew prior to taking Peet
and Spencer into custody. John Anderson, who was robbed by the gunman and his accomplices on
the night of the shooting, gave a statement to the Detroit police early the next morning at 12:55 a.m.
 Anderson was “at the gas station” near the Coney Island restaurant “waiting [in line] to pay for my
gas” when three men walked in and acted like “they going to buy something.” Two of the men stood
near Anderson. One of the men yelled at Anderson, “Get that thing.” Then, “the other guy that was
standing next to me pulled out a gun. I looked at the other guy then the guy said, ‘B[***] you know
what I mean.’” Anderson then gave the man his money, a total of $125. Anderson subsequently
opened the gas station door and ran to his car. As he pulled away in his car, he “heard a gunshot.”
In total, Anderson heard two gunshots between 10:15 p.m. to 10:30 p.m. on April 27, 2000.
       When asked for a description of the men in the gas station who stood near him, Anderson
described the first as a black male aged 20 to 25, who was 5’9” tall and weighed 165 to 170 pounds.
The man wore a gray pullover jacket with a hood and gray jogging pants. Anderson described the
second man as a black male, aged 18 to 25, who was 5’7” to 5’8” tall and weighed 160 pounds. He
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                           Page 3


wore a red pullover jacket. Anderson did not provide a description of the third person allegedly
involved.
        Jmo Bracey, who was robbed by the same three men that victimized Anderson on the night
of the shooting, gave a statement to the Detroit police early the next morning at 3:05 a.m. Bracey
recounted what he saw and heard the previous night. Bracey and his friend Leonard McGlory drove
to the Coney Island restaurant and ordered food. Bracey walked to the nearby gas station to buy a
cigar. McGlory waited for the food at the restaurant. “When I walked out of the Coney Island,”
Bracey told the police, “3 guys walked up behind me, like from around the corner of the building.”
Bracey “saw one guy reach up inside his coat like he was getting a gun out, and I figured I was about
to get robbed.” Bracey told the police:
       Just then a crackhead called out to the guy and got his attention, and I got inside the
       gas station before he got his gun out. I told the guy behind the counter that I was
       about to get robbed, and I took my gold chain off and put it in my sock. Then the 3
       guys came in and the one guy took his gun out and put it up to my neck. He says,
       “Give me your chain and your jacket.” I told him that I gave my chain to the guy
       behind the counter, so the guy with the gun just took my coat . . . . One of the other
       guys took my money $100 (5-$20’s) out of my pocket. The third guy was waiting
       by the door, like watching out. The guy behind the counter locked the door where
       they was inside, but after they robbed me, they snatched the door loose and got out.
       ...
       I saw 2 of them, I think, run up into the Coney Island, and I heard some shots while
       they were inside, that had to be when they shot Leonard [McGlory]. Then they ran
       out and the one with the gun shot 3 times into the front windshield of the red car [in
       front of the Coney Island], and shot the guy inside the car. Then they took off and
       ran around the corner of the Coney Island back toward the car wash and Anderson
       Street. I didn’t see them any more after that. I checked on Leonard [McGlory], and
       he was laying on the floor under the chair back of the video game in the Coney
       Island, and he was shot in the legs.
Bracey transported McGlory to Riverview Hospital for treatment. McGlory told Bracey that the
men had robbed him.
        Bracey told the police that he had never seen the men before. Bracey described the gunman
as a black male aged 22, who was 5’6” to 5’7” tall, weighed 160 pounds, and had light brown skin
and a short-trimmed beard. The gunman wore his hair in braids and was wearing a gray “sweater-
jacket, like a spring jacket, and black pants.”
        Bracey described the man who took his $100 as a black male aged 20 to 25, who was 5’6”
tall, weighed 150 pounds, and had “dark skin.” Bracey described the third man, the one who stood
watch, as a black male of the same age as the man who took his money. The third man stood six feet
tall, was thin, and had “brown skin.” Bracey said that only the first man had a gun.
       Bracey also said that the “girl who worked in the Coney Island,” presumably Feanda Wilson,
told him that the men had been in the restaurant prior to the shooting and that a friend of the
shooter’s had given her his number.
       Feanda Wilson gave a statement to Detroit police in the early morning after the shooting.
Wilson described the events that led up to the shooting. A little before 10:00 p.m., Wilson was at
the Coney Island restaurant sitting in her friend Reed Byrd’s car, a red Ford Escort parked just
outside the restaurant’s door. While conversing with Byrd in his car, Wilson saw “a black guy
wearing a light gray jogging suit” walk past and head toward the nearby gas station. Wilson then
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                          Page 4


went to work behind the counter at the restaurant. Moments later, the man in the gray jogging suit
entered the restaurant. The man in the jogging suit looked out the window. Wilson then saw two
men outside “next to [Byrd’s] car, one on each side of it.” Wilson
       saw one of the guys open the driver’s door and grab my friend and grabbed his black
       jacket and his red/white/blue shirt off [of] him. My friend was trying to back up and
       while this was taking place, this guy inside the restaurant with the gray jogging suit
       went over to a customer who was sitting next to the video game. He told the
       customer, “What the f[***] are you looking at”? The customer said, “I ain’t seen
       nothing”. The guy said, “Naw n[***]a, you saw something,” then he just started
       shooting. Then the guy with the jogging suit [went] outside and over to my friend’s
       car where the other guys are trying to grab my friend out of his car. The guy at the
       driver’s door said, “Get this mother f[***]r too.” Then, the guy with the jogging suit
       just starts shooting at my friend. Then he runs around by the garbage cans. The two
       other guys who were at the car got into a dark blue Ford F150 pickup, late 80’s, early
       90’s, and backed up, then took off.
        Wilson described the man in the jogging suit as a black male, aged 20 to 23, who was 5’7”
tall and weighed 165 to 170 pounds with a light complexion. The man wore his hair in braids and
also wore a white shirt. Wilson said that the man shot the patron in the restaurant and her friend in
the car about three times each.
       Wilson described the man who was at the driver’s side door of her friend’s car as a black
male, aged 20 to 25, who was 5’4” to 5’5” tall and weighed 170 pounds with a dark complexion.
The driver’s side man wore his hair in braids and also had a mustache. Wilson reported that the man
wore a leather jacket and dark pants. Earlier, the driver’s side man had “been in the restaurant and
gave me his phone number, it was 232-0235 or 6235.”
       Wilson described the man who approached the car from the passenger’s side as a black male,
aged 20 to 25, who was 5’8” tall, weighed 180 pounds, and had a light complexion. The passenger’s
side man wore his hair “low cut,” and that night had worn a gray, hooded sweatshirt and light-
colored pants. When asked if she had seen any of these people before, Wilson replied “Yes.” The
two had ordered food earlier that night and had eaten their food in the getaway truck while talking.
        In addition to this statement given the morning after the shooting, Wilson also spoke with
Officer Petersen at the scene of the crime right after the shooting occurred. A police report taken
at 9:50 p.m. on April 27 listed Feanda Wilson as the person reporting the offense. The report is not
consistent with certain portions of Wilson’s account given early the next morning. For instance, the
police report identified only two perpetrators, whereas Wilson identified three in her later statement.
The police report also confused Reed Byrd with Leonard McGlory, stating that complainant #1
(identified as Reed Byrd in the report’s opening) was shot inside the restaurant, while complainant
#2 (identified as McGlory) was reported as having been shot in the red car outside the restaurant.
Wilson’s statement the following morning did not confuse Byrd and McGlory. The police report
did not attribute any of its contents to Wilson specifically, and the report identified four other
witnesses who might have been sources for the report. It also contained information that Wilson
almost certainly did not provide, such as the vehicle identification number of Byrd’s car. Petersen
signed the report, and it does not contain Wilson’s signature or any other indicator of its adoption
by Wilson.
        The police located and identified Spencer on April 28 by using Spencer’s pager number,
which they obtained from Wilson, and took him into custody. The record, however, gives no
indication how the police initially came to know of Peet’s relevance to the shooting. Apparently,
the police also learned of Peet in the course of tracking down Spencer using the pager number.
Nos. 05-1371/1373                      Peet, et al. v. City of Detroit, et al.                                         Page 5


When they approached Peet, he identified himself to Officer Mark Amos as Dennis Peet, showed
the officer identification, and admitted to having witnessed a crime that had been committed at the
Coney Island restaurant. The police then told Peet that he “was a witness to the murder of Reed
Byrd,” and demanded that he participate in the police investigation of the crime. Officer Amos told
Peet that he was not under arrest but nevertheless handcuffed him and drove him downtown in a
police car, despite his protestations and his preference to be driven by family members.
                     B. Events After Police Took Peet and Spencer Into Custody
        That evening, Peet and Spencer were put into separate line-ups to see whether Wilson could
identify them as the murderer’s accomplices. At the line-up, Wilson identified both Peet and
Spencer as the shooter’s accomplices. Spencer’s line-up occurred at 5:00 p.m., while Peet’s line-up
occurred at 7:00 p.m. According to the deposition of Officer J. Fisher, who commented on a
photograph of Peet’s line-up at Fisher’s deposition, Peet was the second shortest of six participants
in Peet’s line-up. Officer Fisher further testified, based on a photograph of Spencer’s line-up, that
it looked like Spencer wore his hair in braids, but added, “It’s hard to see.” Officer Fisher did not
say in his deposition that others in the line-up wore their hair differently than Spencer.
       Following Wilson’s identification of Peet and Spencer on April 28, 2000, Investigator
Pearson prepared an Investigator’s Report for both Spencer and Peet, which Investigator Pearson
completed at around 8:00 p.m. A judge subsequently signed an arrest warrant for Peet and Spencer,
whom prosecutors later charged. On May 24, 2000, Peet and Spencer appeared at a preliminary
hearing where a state judge determined that probable cause existed to hold them until trial on
charges of first degree murder.
        Meanwhile, evidence in the case continued to develop in a manner that, on balance, tended
to exculpate Peet and Spencer. The police took a statement from McGlory at the hospital on May 2,
2000, recounting what he saw and heard the evening of April 27. Two days later, on May 4, 2000,
the police took a second statement from Jmo Bracey. Neither of these witnesses provided
information linking Peet or Spencer to the crime. Following the April 28 arrest of Peet and Spencer,
Investigator Pearson conducted additional line-ups involving the plaintiffs, none of which produced
positive identifications of Peet or Spencer as suspects.
       Investigator Pearson wrote in his notes on May 2 at 8:00 p.m., “Feanda Wilson is the only
statement out of place. Setting up polygraph for her for 5-3-00 to see if she is lying about the two
suspect[s]. . . . Feanda no longer works at Super Coney Island. Fired for stolen money from
business.” On June 9, 2000, the Detroit police completed a test for fingerprints      on Byrd’s red
Escort. No print impressions matched the prints of Byrd, Peet, or Spencer.1

         1
             Jmo Bracey was deposed on September 1, 2004, in connection with this civil suit. Bracey said that after he
gave his first statement to the police, they locked him up and told him that if he did not give them information they would
hold him. Bracey asserted in his deposition that after he told the police that Peet and Spencer were innocent, Investigator
Pearson locked him up “because they told me I was lying. They thought I was holding evidence, lying to them.” This
line of questioning in Bracey’s deposition regarding the police’s alleged threats against him was composed almost
entirely of leading questions by counsel for the plaintiffs. Opposing counsel objected repeatedly, but counsel for the
plaintiffs retorted, “I can lead any way I want,” and, “Go ahead,” get a protective order. Counsel for the plaintiffs said
to opposing counsel, “You can have a continuing objection on leading, how is that?”
           In a deposition taken for this civil suit, Darryl Williams, a witness to the incident at the Coney Island restaurant,
testified that the police arrested and locked him up without charges so that they could question him about the incident
at Coney Island. Williams also stated that the police directed him to provide the testimony they “wanted to hear” or he
would be held longer. Julian Latham, another witness, similarly testified in his deposition that he was arrested as a
witness and that the police “coerce[d] me to say that” Peet and Spencer committed the crimes at the Coney Island.
Latham said that because the police disliked his testimony exonerating the plaintiffs, the police locked him up and held
him for three days, threatening to confine him until he told the “truth” that Peet and Spencer were guilty. Latham said
that Investigator Pearson threatened to charge him with murder after he refused to change his story.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                        Page 6


      Peet and Spencer remained in jail from April 28, 2000, until their acquittal of all charges on
March 28, 2001.
                                      C. Procedural History
        In April 2002, Peet brought his suit in Michigan state court, but defendants removed the case
to the United States District Court for the Eastern District of Michigan. Peet asserted § 1983 claims
based on constitutional violations, including arrest without probable cause and malicious
prosecution, as well as state-law claims. (The district court later remanded the state law claims.)
Shortly after the filing of Peet’s lawsuit, Spencer brought his own identical lawsuit in the Eastern
District of Michigan.
        Following discovery, all parties moved for summary judgment. The district court denied the
plaintiffs’ summary judgment motion but granted summary judgment in favor of the defendants in
two steps. First, on January 19, 2005, the district court granted the defendants’ motions for
summary judgment as to the individual officers except Investigator Pearson, and granted summary
judgment in favor of Detroit on the municipal liability claims. The district court took the defense
motions for summary judgment under advisement as to Investigator Pearson. Second, on January
31, 2005, the district court issued opinions and orders in both the cases of Peet and Spencer granting
the defendants’ motions for summary judgment as to Investigator Pearson. This appeal followed.
                                                  II.
        Reviewing de novo, we affirm the district court’s grant of summary judgment to all
defendants as to Spencer’s suit, because no reasonable juror could find that probable cause did not
support Spencer’s arrest. In his brief, Spencer alleges one constitutional violation with respect to
his arrest: he claims that it was unsupported by probable cause. Confining our review to the central
issue raised by Spencer, we affirm because probable cause existed to arrest him for the robbery of
Reed Byrd.
                                                  A.
        The police had probable cause to believe that Spencer had robbed Reed Byrd at Coney Island
on April 27. Officer Amos consequently had probable cause to effect Spencer’s arrest when the
police took Spencer into custody prior to the police line-up. In particular, no reasonable juror could
disagree that the police could have reasonably believed that Spencer had robbed Reed Byrd, based
on Feanda Wilson’s knowledge of Spencer’s pager number, combined with her statement that the
owner of the pager participated in taking Byrd’s coat by force.
        In Beck v. Ohio, the Supreme Court held that probable cause exists when the police have
“reasonably trustworthy information [that is] sufficient to warrant a prudent man in believing that
the [suspect] had committed or was committing an offense” based on “the facts and circumstances
within [the police’s] knowledge” at the moment in question. 379 U.S. 89, 91 (1964). No reasonable
juror could disagree that the evidence supplied by Wilson made it reasonable to believe that Spencer
had committed robbery in connection with the forceful theft of Byrd’s coat, thus supplying probable
cause to arrest Spencer on felony charges on April 28 before the line-up. Wilson told the police in
her early-morning April 28 statement that the night before she saw two men approach Byrd’s car
on either side and take his coat by force. Wilson saw the man on the driver’s side of Byrd’s car
“open the driver’s door and grab [Byrd] and grabbed his black jacket and his red/white/blue shirt
off [of] him.” Wilson said that both men then tried to “grab” Byrd “out of his car.”
        Wilson’s eye witness statement is trustworthy information justifying a reasonable belief that
these two men robbed Byrd. See Beck, 379 U.S. at 91 (trustworthy information creates probable
cause); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (holding that firsthand observations are
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                         Page 7


entitled to a presumption of reliability and veracity). One of the men grabbed Byrd’s jacket, thereby
depriving Byrd of his property by force. Both men laid their hands on Byrd to remove him from the
car, thereby committing robbery.
       In addition, the police also had probable cause to believe that Spencer was one of these two
robbers, based on Wilson’s knowledge of Spencer’s pager number. Wilson told police that the
robber who approached the driver’s side of Byrd’s car had “been in the restaurant and gave me his
phone number, it was 232-0235 or 6235.” It is uncontested that the pager number belonged to
Spencer and that the number led the police directly to Spencer. Based on these facts, the police had
probable cause to arrest Spencer for robbing Reed Byrd of his coat.
         Moreover, other signed witness statements in the record available to Investigator Pearson
around the time of the arrest—for example, Jmo Bracey’s and John Anderson’s statements on April
28—do not materially disagree with Wilson’s April 28 witness statement and thus did not undermine
the probable cause to arrest Spencer. To the contrary, Bracey’s and Anderson’s accounts of the
robbery and shooting agree with Wilson’s account in some important respects; for instance, both
Bracey and Wilson said that one of the gunman’s accomplices had a dark complexion. Wilson said
the first accomplice looked 20 to 25 years old; Bracey’s estimate was exactly the same. Wilson said
the first accomplice was 5’4” to 5’5” and weighed 170 pounds; Bracey’s similar (but slightly
different) recollection was 5’6” and 150 pounds. Anderson, also, similarly remembered one of the
accomplices as being 5’7” tall and weighing 160 pounds. A line-by-line comparison of the three
accounts is not necessary. The three accounts are not identical, but their differences are minor and
are of the sort to be expected when different eye witnesses recollect the same event. Overall, the
accounts resemble each other adequately to justify a reasonable officer’s belief in Wilson’s account
in light of Anderson’s and Bracey’s accounts, and Spencer does not argue that inconsistencies within
Wilson’s statement undercut her credibility such that a reasonable juror could find that there was
no probable cause to justify Spencer’s arrest.
                                                  B.
        Moreover, the evidence that emerged after the arrest, such as statements by witnesses Bracey
and McGlory, Investigator Pearson’s doubts about Wilson’s credibility, and the alleged
suggestiveness of the police line-up, do not aid Spencer’s argument that probable cause did not
support his arrest. This post-arrest evidence does not show that probable cause was lacking on
April 28, when the police arrested Spencer. The Supreme Court has held that probable cause
determinations must be evaluated according to the information the police knew at the moment of the
challenged conduct, not information learned for the first time afterwards. See Beck, 379 U.S. at 91.
The statements that Bracey and McGlory made to the police after April 28, Investigator Pearson’s
post-arrest doubts about Wilson’s credibility, and the line-up are therefore irrelevant to the probable
cause issue here, because they occurred after Spencer had already been arrested.
        Also regarding post-arrest evidence, Spencer further argues that the police had a duty to
release him from jail the moment that new, exculpatory evidence came to light. When subsequent
developments disprove the correctness of a previous police determination that probable cause exists,
the argument goes, the police no longer have justification under the Fourth Amendment to continue
the incarceration, and must release the suspect. Spencer cites no authority articulating this principle
as a Fourth Amendment obligation. It lacks support in this circuit’s case law. Nor does Spencer
offer any rationale from cases or other authority that would warrant a court-imposed requirement
on police to release suspects the moment sufficiently exculpatory evidence emerges.
       We note that policy does not support such a new development in the law. Such a rule would
give investigators the responsibility to reevaluate probable cause constantly with every additional
witness interview and scrap of evidence collected. Moreover, as investigations progress, the
Nos. 05-1371/1373                     Peet, et al. v. City of Detroit, et al.                                       Page 8


strength of evidence against a suspect may frequently change. Some released suspects would be
rearrested when further inculpatory evidence emerged and showed that probable cause existed after
all.2 And in lengthy, close cases these suspects might be re-released, and then re-rearrested, and so
on.
                                                            C.
        The district court also properly granted summary judgment to the officers as to Spencer’s
claim for malicious prosecution. With regard to that claim, Spencer has the problem of the judicial
determination of probable cause following the evidentiary preliminary hearing. While that
determination has no preclusive effect if there is evidence that the claim of malicious prosecution
is based on a police officer’s supplying false information to establish probable cause, Hinchman v.
Moore, 312 F.3d 198, 202–03 (6th Cir. 2002), there is no evidence in this record that Investigator
Pearson or the county prosecutor or anyone else supplied the magistrate judge at that hearing with
false information to establish probable cause. To the contrary, the transcript of the preliminary
examination in the record shows that the only defense argument made was the alleged insufficiency
of the evidence to support the charges, and that argument did not rely on any allegation that false
information had been supplied.
        Because Spencer has not shown that the state judge relied on false information to determine
that probable cause existed to bind Spencer over for trial, Spencer is precluded from relitigating the
matter on a theory of malicious prosecution in this § 1983 suit. See, e.g., Buttino v. City of
Hamtramck, 87 F. App’x 499, 502–05 (6th Cir. 2004).
                                                            D.
        The conclusion that Spencer’s arrest was supported by probable cause also requires
affirmance of the district court’s grant of summary judgment in favor of the City as to Spencer’s suit.
Since the police had probable cause to arrest Spencer, the officers did not commit the constitutional
wrong that Spencer’s suit alleges. Consequently, the City of Detroit cannot be held liable under


         2
            The dissent argues that authorities violated Spencer’s and Peet’s constitutional rights by filing a misleading
request for a warrant. In their complaints, however, Spencer and Peet do not raise the dissent’s theory that deficiencies
in the warrant request amounted to an unconstitutional arrest. Moreover, the district court certainly did not think that
Spencer and Peet were raising the dissent’s theory, presumably because (to the extent that Spencer and Peet raised the
theory at all below) they mentioned the discrepancies in the warrant request to prove that officers lacked probable cause
for the initial arrest.
          Assuming that the argument is properly before us, the dissent’s theory has significant problems. The first two
problems are temporal. First, the dissent relies on information that Pearson obtained after he submitted the warrant
request to suggest that Pearson always doubted whether probable cause existed. The evidence, however, shows that
Pearson submitted the warrant request on the day after the murder, when signs suggested Spencer and Peet’s culpability,
and the record does not show that authorities questioned their case after the initial arrest but before authorities submitted
the warrant request. The dissent points to Pearson’s deposition statement that he “might have had doubts” about
Wilson’s truthfulness before the warrant was signed, but even if Pearson had doubts before the warrant was signed,
Pearson’s statement does not indicate that those doubts existed before the warrant request was submitted. Second, the
dissent faults the investigators for mentioning Wilson’s eyewitness identification in their warrant request. While it is
true that Wilson identified Spencer and Peet after the initial arrests, her eye-witness identification undermines Spencer’s
and Peet’s claim that there was no probable cause at the time that Pearson submitted the warrant request. In essence,
the dissent faults authorities for failing to include post-warrant exculpatory evidence but then faults authorities for
including post-arrest incriminating evidence. In this case, there was probable cause at the time of the initial arrest, and
the evidence after the arrest but before authorities submitted the warrant request did not clearly exonerate Spencer and
Peet. Third, the dissent demands a level of perfection that would be difficult for most police departments to meet.
Undoubtably, the magistrate judge would have benefitted from a more precise warrant request that clearly delineated
what each witness would say and differences between similarly looking cars (assuming that the witnesses could provide
consistent and clear descriptions in a situation like this one). Such precision, where there is probable cause to justify
an arrest, is not a constitutional requirement.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                          Page 9


§ 1983 for police conduct that inflicts no constitutional injury. See City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986) (per curiam) (“If a person has suffered no constitutional injury at the hands
of the individual police officer, the fact that the departmental regulations might have authorized the
use of constitutionally excessive force is quite beside the point.”).
       The grant of summary judgment to the City as to Spencer’s suit was proper.
                                                  III.
        The district court also properly granted summary judgment as to Peet’s suit against the
officers. First, Peet only appeals the district court order dismissing the complaint against Pearson.
Peet does not challenge the district court order dismissing the complaint against Officer Amos, and
we do not address whether a reasonable juror could find that Officer Amos arrested Peet without
probable cause. Second, the record does not reflect that Pearson participated in the arrest of Peet.
His deposition says that he did not, his progress notes do not mention it, and we are directed to no
contrary testimony. As a result, we do not need to engage in speculation as to why Officer Amos
arrested Peet or what role Pearson might have played. Finally, for the reasons above regarding
Spencer’s claim for malicious prosecution, it was proper for the district court to grant summary
judgment with respect to Peet’s malicious prosecution claim.
          The district court also properly granted summary judgment to the City as to Peet’s claim
for municipal liability, because Peet has not produced sufficient evidence tending to prove that
Detroit tolerated a custom of federal rights violations that could have caused Peet to be arrested
without probable cause. “To prevail in a § 1983 suit against a municipality, a plaintiff must show
that the alleged federal right violation occurred because of a municipal policy or custom.” Thomas
v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
         Peet argues in his brief that the evidence creates a genuine issue of material fact about
whether Detroit has a “custom” of “intimidating witnesses, falsely accusing/arresting witnesses
during police investigations, and retaliating against citizens who do not support the department in
its coercive activities.” Peet also argues in his brief that “the evidence presented in this case shows
a failure to train and supervise” Detroit police officers. Thus, in this court Peet relies on two
municipal-liability theories: first, custom; and second, failure to train. Ultimately, Peet has supplied
too little Rule 56 evidence to create a genuine issue of material fact regarding the custom theory, and
he raises the failure-to-train theory for the first time on appeal.
                                                  A.
        Peet has presented insufficient Rule 56 evidence to create a trial-worthy dispute over whether
Detroit has a custom of tolerating federal rights violations. At most, Peet has presented admissible
record testimony that he, Darryl Williams, and Julian Latham were incarcerated and coerced in
violation of their constitutional rights. But no reasonable juror could find on the basis of three
discrete incidents that a city-wide policy or custom of unconstitutional treatment of witnesses was
in place.
        Peet cites the following evidence to establish a policy or custom of arresting witnesses
without probable cause. Darryl Williams testified that the police arrested and locked him up without
charges so that they could question him about the shooting at Coney Island. Williams also stated
that the police directed him to provide the testimony they “wanted to hear” or he would be held
longer.
        Julian Latham similarly testified that he was arrested for questioning and that the police
“coerce[d] me to say that” Peet and Spencer committed the crimes at the restaurant. Latham said
that because the police disliked his testimony exonerating the plaintiffs the police locked him up and
Nos. 05-1371/1373                     Peet, et al. v. City of Detroit, et al.                                      Page 10


held him for three days, threatening to confine him until he told the “truth” that Peet and Spencer
were guilty. Latham said that Investigator Pearson threatened to charge him with murder after he
refused to change his story.
            Bracey testified similarly, but solely as the result of admittedly leading questions by
counsel for the plaintiffs to which opposing counsel objected repeatedly.   Consequently, Bracey’s
testimony to this effect is inadmissible and will not be considered.3
        All told, the plaintiffs have produced only the arrests of Peet, Williams, and Latham as
admissible evidence of a city-wide custom of arresting witnesses without probable cause. But that
is not enough to create a genuine issue of material fact. A custom or policy must be shown by “a
clear and persistent pattern,” and three discrete instances in one investigation is simply not enough
to reasonably draw such a conclusion. See Thomas, 398 F.3d at 432. Just as this court held in
Thomas that no reasonable juror could “infer a municipal-wide policy based solely on one instance
of potential misconduct,” id., no reasonable juror could infer such a custom or policy based on a
mere three instances that are limited to one police investigation.
                                                             B.
       In his brief, Peet argues that the City is liable for officers’ constitutional violations against
him because the City failed to train its officers adequately. Peet, however, neglected to raise this
argument in the district court. We decline to consider Peet’s failure-to-train argument for the first
time on appeal. See Saylor v. United States, 315 F.3d 664, 669 (6th Cir. 2003).
          The grant of summary judgment to the City as to Peet’s claim for municipal liability was
proper.
                                                            IV.
        Finally, Peet and Spencer argue that the City is liable for subornation of perjury under the
Due Process Clause, based on the rule of Sperle v. Michigan Department of Corrections, 297 F.3d
483, 491 (6th Cir. 2002). But Sperle does not permit a claim for subornation of perjury on this
record. Sperle permitted recovery for government actions that increase the risk of injury to the
plaintiffs from private parties. See id. Sperle has no application to this case. There is no risk of
injury from private parties to speak of here that could have resulted from the defendants’ alleged
subornation of perjury—at least none pointed out by Peet and Spencer in their briefs. Consequently,
the plaintiffs’ argument based on Sperle has no merit.
       No supportable basis has been presented for reversing the grant of summary judgment to the
City with respect to Peet’s and Spencer’s subornation of perjury claim.



          3
             Peet also points to other evidence that we may not consider. For instance, he alleges that in proceedings in
a different case in federal district court in Michigan, a Detroit police sergeant admitted that a custom, policy, and practice
of detaining all witnesses exists in Detroit. In particular, Peet cites Taylor v. City of Detroit, 368 F. Supp. 2d 676, 692
(E.D. Mich. 2005), to establish this fact. The district court opinion in Taylor does not demonstrate a policy. First, Taylor
itself held only that a genuine issue of material fact exists regarding Detroit’s alleged custom of arresting witnesses
without probable cause. See id. Taylor did not hold that such a custom actually exists; that issue remains to be decided
at a later trial. Second, the Taylor court’s holding that a genuine issue of material fact existed in that case was record-
specific and may not be automatically imposed on other district courts or this court. Since the evidence on which
Taylor’s denial of summary judgment in favor of the defense is premised is not before this court, Taylor has no relevance
to the “custom” issue in this appeal. Third, while Peet had the district court opinion admitted into evidence, he did not
obtain admission of the evidence upon which the district court relied. Finally, the plaintiffs point to a consent judgment
entered into by the City and the U.S. Department of Justice. The consent judgment is not part of the record in this case.
Nos. 05-1371/1373            Peet, et al. v. City of Detroit, et al.               Page 11


                                                V.
      For the foregoing reasons, the judgment of the district court is affirmed.
Nos. 05-1371/1373                   Peet, et al. v. City of Detroit, et al.                                  Page 12


                        ______________________________________________
                         CONCURRING IN PART, DISSENTING IN PART
                        ______________________________________________
       HOLSCHUH, District Judge, concurring in part and dissenting in part. I concur in the
majority opinion concerning plaintiffs’ claims of subornation of perjury (Section IV).
        With great respect for my colleagues, I must dissent from the remainder of the majority
opinion which holds that: (1) there was probable cause for Spencer’s arrest, and that any deficiencies
in the request for an arrest warrant, submitted after Spencer was taken into custody, are irrelevant
to that probable cause determination; (2) even if Peet had been arrested without probable cause,
Dwight Pearson cannot be held liable because he did not participate in Peet’s arrest; (3) Peet
submitted insufficient evidence that his illegal arrest was caused by a custom or policy of the City
of Detroit; and (4) plaintiffs are estopped from asserting their claims of malicious prosecution.
I.       Claims of Arrest Without Probable Cause
         A.       The Effect of Deficiencies in the Request for an Arrest Warrant After a
                  Warrantless Arrest
        On appeal, Jeemell Spencer and Dennis Peet argue that the district court erred in granting
summary judgment in favor of Dwight Pearson on their § 1983 claims for arrest without probable
cause. As 1the district court noted, Pearson was “the homicide officer in charge of the investigation.”
J.A. at 42. After Spencer and Peet were arrested, Pearson prepared an investigative report, which
he submitted to the Wayne County Prosecutor’s Office along with all then-existing witness
statements, and a request for an arrest warrant. The Prosecutor’s Office, in turn, submitted that
information to a local state court judge who determined that probable cause existed and issued an
arrest warrant for Spencer and Peet.
        The arrest warrant was issued even though Spencer and Peet were already in custody. This
is because, under Michigan law, if an accused is in custody as a result of a warrantless arrest, a
magistrate, upon a finding of “reasonable cause,” i.e. probable cause, shall either issue an arrest
warrant or make an endorsement upon the complaint of a finding of reasonable cause. M.C.L.A.
764.1c. Michigan’s statute codifies the Supreme Court’s holding in Gerstein v. Pugh, 420 U.S. 103,
124-125 (1975), that whenever a person is arrested without a warrant, an impartial judge must make
a “fair and reliable determination of probable cause.” This requirement implements the “Fourth
Amendment’s protection against unfounded invasions of liberty and privacy.” Id. at 112. The
probable cause determination must generally be made within 48 hours after the arrest. See County
of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Unless the judge finds that probable cause
existed for the arrest, the suspect must be released. The relevant question is whether, at the moment
of the arrest, probable cause existed to believe that the arrestee had committed a crime. See Beck
v. Ohio, 379 U.S. 89, 91 (1964).
       Pearson’s investigative report was presented to a judge in support of the request for the arrest
warrant and, unquestionably, was relied upon by the judge in making the probable cause
determination. One of the key issues in this case is whether it matters that Pearson’s report
contained false and misleading statements and omitted material exculpatory information.



         1
           All citations to the Joint Appendix refer to the Joint Appendix submitted in connection with Peet v. City of
Detroit, Case No. 05-1371.
Nos. 05-1371/1373                    Peet, et al. v. City of Detroit, et al.                                   Page 13


         Citing Beck, the majority finds that any events occurring after the arrests of Spencer and Peet
are irrelevant. Maj. Op. Section II(B). I certainly agree that, pursuant to the holding in Beck, only
the evidence known to the officer at the moment of the arrest is relevant to a determination of
whether probable cause exists to believe that the arrestee has committed a crime. The majority,
however, overlooks the important constitutional issue presented by the facts of this case. It is not
a simple question of whether probable cause did, in fact, exist for the arrests of Spencer and Peet,
as the majority believes. At issue in this case is whether a person acting under color of state law --
in this case, Detective Pearson -- can be held liable for a Fourth Amendment violation under 42
U.S.C. § 1983 for submitting false and misleading statements and making material omissions in his
request for an arrest warrant. In this case, the plaintiffs already being in custody, the purpose was
to obtain a finding that probable cause 2existed for the warrantless arrests, thereby justifying the
continued incarceration of the arrestees.
        If the constitutional requirement that, within 48 hours following a warrantless arrest, an
impartial judge must make a “fair and reliable determination of probable cause,” is to have any
meaning at all, the information submitted to the judge in support of the warrant request is most
certainly relevant. Unless the judge is presented with accurate information about the specific
evidence that existed at the moment of the arrest, it is impossible to make a “fair and reliable
determination of probable cause.”
         In cases involving search warrants, and in cases involving arrest warrants sought prior to an
arrest, the law is clear that an officer may be held liable under 42 U.S.C. § 1983 for an illegal search
or seizure when the officer “knowingly and deliberately, or with a reckless disregard for the truth”
makes “false statements or omissions that create a falsehood” and “such statements or omissions are
material, or necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d 781, 786-87 (3d
Cir. 2000)   (cited with approval by the Sixth Circuit in Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir.
2003)).3 See also Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989). As this court said in
Hinchman v. Moore, 312 F.3d 198, 205-06 (6th Cir. 2002), “[f]alsifying facts to establish probable
cause to arrest and prosecute an innocent person is of course patently unconstitutional.” When an
affidavit contains false statements or material omissions, the question becomes whether, once the
false statements are omitted and the omitted facts are inserted, the “corrected affidavit” is still
sufficient to establish probable cause. Wilson, 212 F.3d at 789. See also Hill, 884 F.2d at 275 (a
Fourth Amendment violation exists if, “with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause” (quoting Franks v.
Delaware, 438 U.S. 154, 155-56 (1978))).
       I believe that this same analysis must be applied when an arrest warrant is sought following
a warrantless arrest. The probable cause determination by an impartial judge is more than a “rubber
stamp” after the fact of an arrest. The judge is required to make an independent determination of
whether probable cause existed at the moment of the arrest. If it is a constitutional violation to
submit false statements and omit material facts when seeking a warrant prior to an arrest, it is also,

         2
           The majority contends that Spencer and Peet failed to raise this argument in their complaints. See Maj. Op.
Section II(B) n.2. Although stated in the context of any claim of qualified immunity by defendants, plaintiffs did allege
the unlawful conduct of defendants by reasons of “their non-testimonial acts of misstating their Investigator’s Report
to influence the appearance of Plaintiff’s guilt so that a warrant could issue and in providing false evidence to a
magistrate so that probable cause could be established.” First Am. Compl. ¶ 50, J.A. at 26.
         3
             “An assertion is made with reckless disregard when ‘viewing all the evidence, the affiant . . . entertained
serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he
reported.’” Wilson, 212 F.3d at 788 (quoting United States v. Clapp, 46 F.3d 795, 801 n.6 (8th Cir. 1995)). Omissions
are made with reckless disregard if an officer withholds “a fact in his ken” that “any reasonable person would have
known . . . is the kind of thing the judge would wish to know.” Wilson, 212 F.3d at 788 (quoting United States v. Jacobs,
986 F.2d 1231, 1235 (8th Cir. 1993)).
Nos. 05-1371/1373                   Peet, et al. v. City of Detroit, et al.                                  Page 14


in my opinion, a constitutional violation to submit false statements and omit material facts when
seeking a judicial determination of probable cause following a warrantless arrest. The constitutional
requirement of a “fair and reliable determination of probable cause” applies with equal force in both
cases. With this premise in mind, I turn then to an application of the law to the facts of this case.
         B.       The False and Misleading Statements and Material Omissions in the Request
                  for an Arrest Warrant
       Based on the information Pearson submitted with his request for an arrest warrant, the judge
determined that probable cause existed for the warrantless arrests of Spencer and Peet, and therefore
they continued to be held in jail. That probable cause determination, however, was based on a report
that was constitutionally deficient in numerous respects. It contained false and misleading
statements and omitted a great deal of exculpatory information.
        The most glaring error was Pearson’s patently false statement that eyewitnesses Bracey and
Anderson would testify that Spencer and Peet (identified in the report as “Defendants #1 and #2”),
had robbed them at the gas station next to the Coney Island restaurant. J.A. at 381. In fact,
absolutely nothing in their statements implicates Spencer or Peet. That same report states that
Feanda Wilson saw “Defendants #1 and #2,” i.e., Spencer and Peet, attempt to rob Reed Byrd of
his coat, and heard “Defendant #1,” i.e., Spencer, tell the unidentified gunman to shoot Byrd. J.A.
at 380-81. The judge who made the probable cause determination obviously would have relied on
the fact that, according to Pearson’s report, three separate eyewitnesses -- Wilson, Bracey and
Anderson -- all had identified Spencer and Peet as participants in the crime prior to their arrests, an
extremely inculpatory fact that was, however, undeniably false.
        Pearson’s report also states that Wilson, the key witness, would testify that she positively
identified Spencer and Peet in a show up/line up at the police station. J.A. at 381. While not
technically a false statement, it is patently misleading. It would lead any judge to believe that
Wilson’s eyewitness identification of Spencer and Peet in the lineup at the police station occurred
before the arrests. In fact, the identification did not occur until after the arrests. Because the
probable cause determination must be based on what evidence existed at the moment of the arrest,
the evidence submitted to the judge should have been confined to the evidence Pearson had available
when Spencer and Peet were taken into custody. Evidence of Wilson’s later eyewitness
identification should not have been submitted to the judge for consideration in determining whether
probable cause existed at the time of the arrests.
        Not only did the report contain false and grossly misleading statements, it also omitted
important exculpatory information. For example, it fails to note discrepancies between the physical
descriptions of the robbers given by witness John Anderson and by Feanda Wilson. Wilson
described the gunman as a black male, 20-23, 5’7,” 165-170, light complexion, braided hair, light
grey jogging suit, white shirt. She described the man who gave her his pager number, i.e., Spencer,
as a black male, 20-25, 5’4”-5’5,” 170, dark complexion, mustache, braids, wearing a black leather
jacket and dark pants. The other accomplice, i.e., Peet, was described as a black male, 20-25, 5’8,”
180, light complexion, low cut hair, gray hooded sweatshirt, light      colored pants. J.A. at 236.
Anderson’s description of the gunman matched Wilson’s statement.4 However, Anderson stated that
one of the other accomplices was wearing a red pullover jacket and a red skull cap. J.A. at 451-52.
This description is, of course, completely inconsistent with Wilson’s descriptions of Spencer and
Peet.



         4
          Notably, the physical descriptions of the perpetrators given by these witnesses would comfortably fit a large
number of African-American men.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                        Page 15


       Pearson’s report also fails to note that although the initial police report indicates that there
were only two perpetrators, Wilson later stated that there were three. J.A. at 235-37, 394. In
addition, the report fails to mention that although Wilson initially told the responding officer that
the suspects were driving a light blue Ford F-150 pickup truck, J.A. at 394, and later said it was a
dark blue Ford F-150, J.A. at 236, Peet’s vehicle was actually a midnight blue Dodge Ram.
        It is undisputed that, at some point during the investigation, Pearson came to doubt the
veracity of Wilson’s statement. On May 2nd, just four days after he submitted his report, he wrote
in his Progress Notes that he planned to arrange for Wilson to take a polygraph test because her
statement was out of line with the statements of all other witnesses. Pearson admitted at his
deposition that he might have had doubts about the truthfulness of Feanda Wilson’s statement even
before the warrant was issued:
                       Q.      Okay. But between the time you took
                               Wilson’s statement and the time you took
                               Bracey’s statement, you had a question about
                               Feanda Wilson’s truthfulness, correct?
                       A.      I don’t know when I had a disbelief at the
                               time. It might have been after the warrant was
                               signed.
                       Q.      It might have been before the warrant was
                               signed, correct?
                       A.      Could have been.
                       Q.      And if it had been before the warrant was
                               signed --
                       A.      Then a warrant probably wouldn’t have been
                               signed.
                       Q.      Would you have been duty-bound to put that
                               in your request for warrant?
                       A.      You don’t put that in your warrant request.
                       Q.      You don’t?
                       A.      No.
                       Q.      Why not?
                       A.      It’s information about the circumstances. It
                               don’t say if you have witnesses in doubt.
                       Q.      You don’t put in there that I don’t think she’s
                               being truthful?
                       A.      No, you don’t.
                       Q.      You don’t put in there the parts that you think
                               she’s being untruthful about?
Nos. 05-1371/1373                      Peet, et al. v. City of Detroit, et al.                                       Page 16


                             A.        The reason why I don’t put it in there is
                                       because all I do is gather information and give
                                       it to the prosecutor. Even though the
                                       statement is saying one thing, she the one
                                       made the statement. If any of us have any
                                       doubtfulness, then we’ll let the prosecutor
                                       know maybe on a piece of paper that witness
                                       may be questionable, but it never goes into the
                                       investigative report.
J.A. at 364-365. So even if Pearson had doubts about the truthfulness of his key witness, he would
have concealed those doubts from his investigative report and his request for a warrant made to the
judge who was to make the probable cause determination. In my view, Pearson’s failure to disclose
his doubts about the veracity of Wilson’s statement in his report and request must be considered a
material omission.
        I believe that Pearson had good reason to doubt the veracity of Wilson’s statement even
before he submitted the request for an arrest warrant. Wilson’s written statement was inconsistent
with the statement she gave to the police who responded to her call at the scene of the crime, and
it was not corroborated by the statement of any other witness. Common sense also calls her
statements into serious doubt. As this court pointed out in Gardenhire v. Schubert, 205 F.3d 303
(6th Cir. 2000), the unlikely conduct of a defendant is a factor to consider in the determination of
whether a police officer had probable cause for a warrantless arrest. Id. at 315 (“It is unlikely that
one store owner would steal goods from another and then leave those goods in the window of her
own store-front.”). In this case, it is extremely unlikely that Spencer would give Wilson his pager
number so that she could locate him, and then proceed to commit a violent crime in her presence.
As Gardenhire also points out, officers must consider the “totality of the circumstances, recognizing
both the inculpatory and exculpatory evidence” in determining whether they have probable cause
to make an arrest. Id. at 318 (emphasis in original).
       The question then becomes whether, once the false and misleading inculpatory statements
are omitted from Pearson’s report, and the material exculpatory evidence is included, probable cause
nevertheless exists to believe that Spencer or Peet had committed a crime.5

         5
            In footnote 2 of the majority opinion, the majority contends that there are two “temporal” problems with the
dissent’s position. First, the majority claims that there is no evidence that Pearson had any doubt about the culpability
of the plaintiffs prior to his submission of the warrant request. To the contrary, as noted above, Pearson admitted at his
deposition that he might have had doubts about Wilson’s truthfulness even before the warrant was signed. J.A. at 364-
65. Second, the majority contends that “the dissent faults the investigators for mentioning Wilson’s eyewitness
identification in their warrant request.” This is not correct. The dissent faults Pearson for including this information
without disclosing to the judge that Wilson’s identification took place after Spencer and Peet had already been arrested.
Absent this disclosure, the judge was misled to believe that Wilson’s eyewitness identification took place before Spencer
and Peet were taken into custody and thus considered identification evidence that did not exist at the moment of
plaintiffs’ arrests.
          The dissent does not fault Pearson for failing “to include post-warrant exculpatory evidence.” Indeed, if
evidence becomes known for the first time after the warrant request has been submitted, it obviously could not have been
included in that request. The dissent admits that it does fault Pearson “for including post-arrest incriminatory evidence,”
because such evidence is also irrelevant to a determination of whether probable cause existed at the moment of the
arrests. The majority further argues that this post-arrest evidence “did not clearly exonerate Spencer and Peet.” Apart
from the fact that it is not our responsibility to judge the guilt or the innocence of Spencer and Peet – whether certain
evidence does or does not exonerate them – the point is that inculpatory events post-arrest and prior to warrant, such as
Wilson’s line-up identification, should not be used for the purpose of obtaining a finding of probable cause for their
arrests.
          Finally, I do not feel that it is true, as the majority contends, that “the dissent demands a level of perfection that
would be difficult for most police departments to meet.” I do not believe that it is unreasonable to expect law
enforcement officers seeking a probable cause determination from a judge following a warrantless arrest to refrain from
Nos. 05-1371/1373                     Peet, et al. v. City of Detroit, et al.                               Page 17


         C.         Pearson’s Liability for Unlawful Arrests
                    1.       Probable Cause for Spencer’s Arrest is a Jury Issue
        With respect to Spencer, the majority concludes, as did the district court, that probable cause
existed to believe that Spencer had robbed Reed Byrd outside the Coney Island restaurant. That
conclusion is based primarily on Wilson’s written witness statement, taken approximately six hours
after the shootings. According to Wilson, the gunman’s two accomplices came into the Coney
Island restaurant to order food. One of them gave her his pager number, either “232-0235 or 6235
and the name ‘Mail.’” J.A. at 236. The two then went to the parking lot and ate in their truck, a
“dark blue Ford F-150 pickup, late 80’s, early 90’s.” J.A. at 236. Wilson said that she later
observed these two men trying to rob Reed Byrd of his coat and heard the one who had given her
his pager number tell the gunman to shoot Byrd. J.A. at 235-36.
        Pearson traced that pager number to Spencer and arrested him without a warrant shortly
thereafter. If Wilson’s statement, standing alone, were reliable enough to support probable cause
for Spencer’s arrest, then Pearson should have immediately sought an arrest warrant. Pearson,
however, obviously felt the need to obtain additional evidence to justify the warrantless arrest. In
County of Riverside, the Supreme Court held that “delays for the purpose of gathering additional
evidence to justify the arrest” were just one example of unreasonable delays in seeking an arrest
warrant. 500 U.S. at 56. Pearson’s Progress Notes indicate that three hours after Spencer’s arrest,
and prior to writing his request for an arrest warrant, Pearson arranged to have Wilson identify
Spencer in a lineup. Before writing the request for an arrest warrant, Pearson also went to the scene
of the crime to see if any video cameras were running when the crime      occurred and took the gas
station cashier, Salah Alhalmi, to the police station for questioning.6
         I believe that genuine issues of material fact preclude summary judgment on the question of
whether, at the time of Spencer’s arrest, probable cause existed to believe that he had committed a
crime. There is no question that after Spencer returned a call placed to one of the pager numbers
given by Wilson, Spencer was arrested based only on this evidence. However, even though Wilson
said that the man who gave her the pager number said his name was “Mail,” J.A. at 236, there is no
evidence that Spencer ever used that name. Pearson obviously believed that the evidence against
Spencer was not enough to justify probable cause for the arrest, because he did not prepare his report
and request for a warrant until after Wilson had identified Spencer in a police lineup. As noted
earlier, however, Wilson’s eyewitness identification of Spencer at the lineup must be excluded from
consideration because it occurred after his arrest.
        Construing the evidence in the light most favorable to the plaintiff, I believe that a reasonable
jury could find that Spencer was arrested without probable cause. This is particularly true once
Pearson’s admittedly false but extremely inculpating statements concerning eyewitnesses Bracey
and Anderson are excluded from consideration, and all material exculpatory evidence, including
Wilson’s contradictory statements and Pearson’s doubts about her credibility, are taken into
consideration. As this court has said on more than one occasion, “the existence of probable cause
in a § 1983 action presents a jury question, unless there is only one reasonable determination
possible.” Wilson v. Morgan, 477 F.3d 326, 334 (6th Cir. 2007) (quoting Gardenhire, 205 F.3d at
315). See also Gregory v. City of Louisville, 444 F.3d 725, 743 (6th Cir. 2006) (“In a § 1983 action,
the existence of probable cause is a question of fact. See United States v. Gaudin, 515 U.S. 506, 521,


submitting false and misleading statements and omitting exculpatory evidence known to the officer. I am confident that
improper conduct of this nature rarely happens. However, when it does, as in this case, there should be a remedy for
an arrestee whose Fourth Amendment right to a fair and reliable determination of probable cause has been violated.
         6
             Alhalmi’s statement is not part of the record.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                         Page 18


115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).”). I would therefore reverse the summary judgment
rendered in favor of Pearson and have the issue of probable cause for Spencer’s arrest submitted to
a jury. I turn next to Peet’s claim of arrest without probable cause.
               2.      Peet is Entitled to Summary Judgment on His Claim of Arrest Without
                       Probable Cause
                       a.      Lack of Probable Cause
         The district court held that Peet’s admission that he was present at the Coney Island
restaurant on the night in question was sufficient, when coupled with Wilson’s statements, to
establish probable cause for Peet’s arrest. As discussed in the next section, the majority affirms the
district court’s order granting summary judgment in favor of Pearson, albeit for a different reason.
        The majority opinion states that, “Investigator Pearson identified the plaintiffs, Dennis Peet
and Jeemell Spencer, as suspected accomplices by relying, primarily, on Spencer’s pager number,
which an eye witness, Feanda Wilson, provided.” Maj. Op. Section I. This is not entirely correct.
Pearson identified Spencer as a suspect based on Spencer’s pager number, but Pearson had no
evidence that would have justified Peet’s arrest. In fact, at his deposition, Pearson testified that he
did not know what probable cause existed for Peet’s arrest, other than, “[h]e could have been put
in the system as wanted in regards to questioning to a homicide if that goes into the system.” J.A.
at 363. Peet testified that he was arrested as soon as he acknowledged that he had witnessed the
robbery at the Coney Island restaurant. J.A. at 314. Peet’s admission that he was present at the
Coney Island restaurant on the night in question is, of course, insufficient to establish probable cause
for his arrest. United States v. Castro-Gaxiola, 479 F.3d 579, 583 (8th Cir. 2007).
        In my opinion, no reasonable jury could find that probable cause existed for Peet’s arrest.
None of the witness statements, including Wilson’s, incriminates Peet. Wilson did not identify Peet
by name and, as noted earlier, her identification of Peet during the lineup occurred after his arrest
and is therefore irrelevant to the probable cause determination. While the record shows that Peet
was arrested within a few hours of Spencer’s arrest, absolutely nothing in the record indicates how
the police came to suspect that it was Peet who was with Spencer on the night in question.
Moreover, as noted earlier, although Wilson stated that the perpetrators left the scene in a Ford F-
150 pick-up truck, Peet was arrested while possessing a Dodge Ram pick-up truck. For these
reasons, as well as those discussed earlier, I believe that, at the time of Peet’s arrest, the police
clearly lacked probable cause to believe that he had committed a crime, and that no reasonable jury
could find otherwise. I would therefore reverse the district court’s order granting Pearson’s motion
for summary judgment and remand with instructions to enter summary judgment in favor of Peet
on Peet’s cross-motion for summary judgment.
                       b.       Pearson’s Liability for Peet’s Wrongful Arrest
         The district court acknowledged that there was a genuine issue of material fact concerning
“Pearson’s alleged omissions and mischaracterizations regarding Bracey’s and Anderson’s
statements,” but found that Peet’s admission that he was present during the robbery, coupled with
Wilson’s statements, established probable cause for his arrest. J.A. at 46-49. On appeal, Peet
challenges this holding. The majority, however, avoids the probable cause issue, affirming the
district court for an entirely different reason.
        The majority opinion affirms the summary judgment against Peet for the reason that, “the
record does not reflect that Pearson participated in the arrest of Peet. His deposition says that he did
not, his progress notes do not mention it, and we are directed to no contrary testimony.” Maj. Op.
Nos. 05-1371/1373                   Peet, et al. v. City of Detroit, et al.                                 Page 19


Section III. The majority raises this issue for the first time in this case.7 The record, in my opinion,
does not support the majority’s argument that Pearson did not participate in Peet’s arrest.
        First, it is undisputed that Pearson, an investigator with the Homicide Squad, received this
case at 8:00 A.M. following the murder of Byrd, and that he was the sole person in charge of the
investigation that culminated in his investigation report and request for an arrest warrant. He
prepared detailed notes of the progress of his investigation, J.A. at 372-377, and according to the
Appellees’ own brief, Pearson prepared the warrant request and submitted it to the Wayne County
Prosecutor’s Office which, in turn, submitted it to a judge for the issuance of the arrest warrant.
Appellee’s Brief at 9-10.
        Second, while there is no evidence that Pearson himself was physically present when Officer
Amos arrested Peet, it is inconceivable that Amos would take it upon himself to arrest Peet without
being instructed to do so by Pearson, who was in charge of the investigation, or without Pearson’s
knowledge and approval. Moreover, Peet was promptly taken by Officer Amos to the police station
where Pearson himself was waiting to conduct a lineup that included Peet. J.A. at 156-158.
         Third, Pearson never testified that he did not participate in Peet’s arrest. Pearson simply
testified that he “wasn’t with him when he was arrested” and “I didn’t lock him up.” J.A. at 363.
The person in charge of a murder investigation is not expected to be physically present at every
arrest made during the course of the investigation, but Pearson’s absence does not necessarily relieve
him from liability for a wrongful arrest that, even if not directed by him, was obviously approved
by him.
         Fourth, the fact that Pearson’s Progress Notes do not mention that Pearson directed Peet’s
arrest and failed to show Pearson being present at Peet’s arrest does not, of course, mean that
Pearson had nothing to do with Peet’s arrest. The overwhelming and uncontradicted evidence shows
that it was Pearson who was in the commander’s seat, the man in charge of the investigation, the
person who was waiting for Amos to bring Peet to the police station so that Feanda Wilson could
identify Peet in a lineup.
        Fifth, there is no “contrary testimony” to Pearson’s testimony that he was not present when
Amos arrested Peet, because that fact is not disputed. It is also not disputed that Pearson supervised
the investigation, noted Peet’s arrest in his Progress Notes, and arranged for the lineup promptly
after Peet’s arrest.
        Pearson concededly cannot be held liable for Peet’s arrest by Amos on a respondeat superior
basis, but he can be held liable, as the person in charge of the investigation that included Peet’s
arrest, if he “at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Hays v. Jefferson County, 668 F.2d 869, 874
(6th Cir. 1982).
       There was absolutely no evidence of probable cause for the arrest of Peet. He was arrested
solely on his statement that he had been at the scene of the crime; yet, he was immediately
handcuffed and taken to the jail where Pearson was waiting for him so he could be placed in a lineup
with the hope that Feanda Wilson would identify him. Pearson had no knowledge of any facts that
would justify Peet’s arrest, but he nevertheless, at the very least, “implicitly authorized, approved,
or knowingly acquiesced” in the warrantless arrest.


         7
           In their Motion for Summary Judgment, the Appellees themselves agreed that a claim was stated against
Pearson. “With the exception of Defendant Pearson, Plaintiff fails to state a claim against the other defendant police
officers.” J.A. at 108.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                        Page 20


       D.      Qualified Immunity
        Neither the district court nor the majority reaches the issue of qualified immunity because
they find that Pearson is entitled to summary judgment on the merits of plaintiffs’ claims of unlawful
arrest. Since I reach the contrary conclusion, a brief discussion of qualified immunity is warranted.
“Qualified immunity is an affirmative defense that shields government officials ‘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.’” Estate of Carter v. Detroit, 408 F.3d 305,
310 (6th Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As the Supreme
Court explained in Saucier v. Katz, 533 U.S. 194 (2001), qualified immunity involves a two-step
inquiry. First, the court must determine whether the facts, viewed in the light most favorable to the
plaintiff, show that a constitutional violation has occurred. Second, the court must determine
whether the constitutional right was clearly established. Id. at 201.
        I would find that Pearson is not entitled to qualified immunity on plaintiffs’ claims of arrest
without probable cause. For all of the reasons previously discussed, I would find that, viewed in the
light most favorable to the plaintiffs, there is abundant evidence that a Fourth Amendment violation
occurred. Pearson, in his report submitted in connection with the warrant request, knowingly and
deliberately, or with a reckless disregard for the truth, made false statements and omissions that were
material to a determination of probable cause. As this court held in Hinchman, this is “of course
patently unconstitutional.” 312 F.3d at 205-06. Once those false and misleading statements are
omitted and the omitted exculpatory evidence is included, it is my opinion that no reasonably
competent police officer would have believed that probable cause existed to believe that Spencer
and Peet had committed a crime. Moreover, as this court recently noted in Leonard v. Robinson, 477
F.3d 347 (6th Cir. 2007), “[i]t is clearly established that arrest without probable cause violates the
Fourth Amendment.” Id. at 355 (quoting Donovan v. Thames, 105 F.3d 291, 297-98 (6th Cir.
1997)). Therefore, in my view, Pearson is not entitled to qualified immunity on plaintiffs’ § 1983
claims for unlawful arrest.
       E.      Municipal Liability for Peet’s Arrest
        Peet’s First Amended Complaint alleged that the City of Detroit should be held liable for his
unlawful arrest because, in part, the City had “a custom or policy of arresting witnesses to get them
to cooperate.” J.A. at 29. Peet claims that he was arrested solely because he was a witness to a
crime. According to Peet’s testimony, after he was approached by the police and identified himself
as Dennis Peet, they asked him if he had witnessed a crime that was committed at the Coney Island
restaurant. When Peet replied, “Yes, I seen some guy get robbed up there,” he was immediately
handcuffed and taken to jail. J.A. at 314.
        The district court granted summary judgment in favor of the City of Detroit, holding that
plaintiffs could not complain about the alleged unconstitutional arrests and treatment of other
persons who were also questioned in connection with Byrd’s murder. With respect to plaintiff Peet,
the court found that “the Detroit Police Department had a probable cause to arrest Peet as a suspect
following Miss Wilson’s statement . . . and as such the claims about the Detroit Police Department’s
policies and practices regarding the arrests of witnesses in murder cases are not implicated here.”
J.A. at 461-462.
        The majority affirms the district court’s decision granting summary judgment in favor of the
City, “because Peet has not produced sufficient evidence tending to prove that Detroit tolerated a
custom of federal rights violations that could have caused Peet to be arrested without probable
cause.” Maj. Op. Section III. The majority notes that there is evidence that, like Peet, two other
persons were arrested as witnesses to the crime and threatened with continued detention or criminal
charges if they did not implicate Spencer and Peet in the murder. The majority finds that these three
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                         Page 21


incidents, all related to this case, are insufficient to establish a policy or custom on the part of the
City.
         The majority does not consider other evidence that, at the time of Peet’s arrest, the City of
Detroit had an established practice of arresting witnesses to major crimes. Plaintiffs submitted the
deposition testimony of Sergeant Felix Kirk of the Detroit Police Department, who testified in the
case of Taylor v. City of Detroit, Case No. 03-72258, filed in the Eastern District of Michigan. Kirk
testified that the Department was recently forced to change its policy involving “illegal detention
of witnesses and the arrest of witnesses.” J.A. at 440. In that case, the court denied the City’s
motion for summary judgment, finding sufficient evidence that the police department had a “custom
or policy of unconstitutional conduct.” See Taylor v. City of Detroit, 368 F. Supp. 2d 676, 692 (E.D.
Mich. 2005).
        Construing all of this evidence in the light most favorable to the plaintiff, a reasonable jury
could find that the City’s policy or practice of arresting witnesses to crimes was the moving force
behind Peet’s unlawful arrest. I would therefore reverse the district court’s order granting summary
judgment in favor of the City on Peet’s claim of unlawful arrest.
II.    Malicious Prosecution Claims
       A.       The Elements of a Tort Claim of Malicious Prosecution
               1.      Common Law Tort
        The elements of the common law claims of false arrest and malicious prosecution are clearly
different. A state law claim of false arrest is based simply on an absence of probable cause for the
arrest. A state law claim of malicious prosecution, in this case under Michigan law, requires proof:
               (1) that the defendant has 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.
Peterson Novelties, Inc. v. City of Berkley, 672 N.W.2d 351 (Mich. Ct. App. 2003) (quoting
Matthews v. Blue Cross & Blue Shield of Mich., 572 N.W.2d 603 (Mich. 1998)).
               2.      Constitutional Tort
       In Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir. 1999), this court held that fabricating
evidence and manufacturing probable cause to unlawfully detain a suspect constituted a Fourth
Amendment violation. With the exception of one panel’s decision in Frantz v. Village of Bradford,
245 F.3d 869 (6th Cir. 2001), the law in this circuit is uniform and well established that a malicious
prosecution claim can be based on the Fourth Amendment, and that prosecution without probable
cause constitutes a violation of that Amendment. In Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006),
the court stated:
               We “recognize a separate constitutionally cognizable claim of
               malicious prosecution under the Fourth Amendment.” Thacker v. City
               of Columbus, 328 F.3d 244, 259 (6th Cir. 2003). Such a claim
               encompasses wrongful investigation, prosecution, conviction, and
               incarceration. Id. at 258 (citing Spurlock, 167 F.3d at 1005-07).
Nos. 05-1371/1373                    Peet, et al. v. City of Detroit, et al.                                   Page 22


Id. at 715-16. See also Gregory v. City of Louisville, 444 F.3d 725, 749 (6th Cir. 2006) (“continued8
detention without probable cause is an actionable Fourth Amendment injury under § 1983”);
Bielefeld v. Haines, 192 F. App’x 516, 520 (6th Cir. 2006) (“this circuit has recognized a Section
1983 claim for malicious prosecution based on the Fourth Amendment”); Doyle v. McFadden, 182
F. App’x 506, 509 (6th Cir. 2006).
       While it is clear that a malicious prosecution claim is cognizable under § 1983 as a Fourth
Amendment violation, our circuit has not yet defined all of the elements of this constitutional tort.
In Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007), the court stated:
                  This court has recognized a § 1983 claim for malicious prosecution
                  arising under the Fourth Amendment, but the contours of such a
                  claim remain uncertain. Wallace, 127 S.Ct. 1096, n.2; McKinley v.
                  City of Mansfield, 404 F.3d 418, 444-45 (6th Cir. 2005), cert. denied,
                  126 S.Ct. 1026 (2006); Darrah v. City of Oak Park, 255 F.3d 301,
                  308-12 (6th Cir. 2001). What is certain, however, is that such a claim
                  fails when there was probable cause to prosecute, or when the
                  defendant did not make, influence, or participate in the decision to
                  prosecute. McKinley, 404 F.3d at 444-45; Darrah, 255 F.3d at 312;
                  Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002).
See also Thacker, 328 F.3d at 259 (“[a]lthough this Court has yet to resolve the elements of a federal
malicious prosecution claim, it is clear that a plaintiff must show, at a minimum, ‘that there was no
probable cause to justify [his] arrest and prosecution.’”).
        In previous decisions of this court, it usually was not necessary to formulate the elements of
a federal malicious prosecution claim, because either the plaintiff had failed to show that the
prosecution was without probable cause or the plaintiff was estopped from asserting such a claim
by reason of a judicial finding of probable cause following a fair evidentiary hearing. In view of the
fact that, for the reasons hereafter stated, I believe that a jury question is presented on the issue of
probable cause for the plaintiffs’ prosecution and that plaintiffs are not collaterally estopped from
asserting their claims, it appears that this is a case in which the elements of plaintiffs’ wrongful
prosecution claims necessarily need to be considered.
                  3.       Suggested Elements
        The dissenting opinion in Frantz proposed the following elements for a constitutional tort
claim of malicious prosecution: (1) a seizure within the meaning of the Fourth Amendment by
someone not entitled to absolute prosecutorial immunity; (2) objectively unreasonable prosecutorial
action taken to bring the plaintiff before the court, independent of any initial physical seizure; and
(3) termination of the criminal proceeding in favor of the plaintiff. Frantz, 245 F.3d at 879-80
(Gilman, J., dissenting).
        In light of the more recent Sixth Circuit jurisprudence concerning this issue, I would suggest
the following elements:
                  1.       The defendant is a person who does not have absolute prosecutorial
                           immunity for his or her conduct in the criminal prosecution of the plaintiff;


         8
           To emphasize that this constitutional tort is based on the Fourth Amendment and not on any due process
grounds, the court said, “[s]eeking clarity in language, we decline to style Plaintiff's cause of action as an action for
‘malicious prosecution’ under § 1983. Rather, we characterize the cause of action simply as the right under the Fourth
Amendment to be free from continued detention without probable cause.” Gregory, 444 F.3d at 750.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                       Page 23


               2.      There was no probable cause for the initiation and maintenance of the
                       criminal prosecution of the plaintiff;
               3.      The defendant intentionally influenced or participated in the initiation or the
                       maintenance of the criminal prosecution of the plaintiff;
               4.      A person in defendant’s position would have known that the facts and
                       circumstances were not sufficient to justify a reasonable belief that the
                       plaintiff had committed the offense with which the plaintiff was charged; and
               5.      The criminal prosecution of the plaintiff was subsequently terminated in
                       favor of the plaintiff.
       B.      Application of the Suggested Elements to the Facts of this Case
         There is no question that Pearson has no absolute prosecutorial immunity for his conduct in
the criminal prosecution of the plaintiffs, that he intentionally influenced and participated in the
initiation and maintenance of the criminal prosecution of the plaintiffs, and that the criminal
prosecution was subsequently terminated in favor of the plaintiffs. The only questions are whether
there was probable cause for the initiation and maintenance of the criminal prosecution of the
plaintiffs, and whether a person in Pearson’s position would have known that the facts and
circumstances were not sufficient to justify a reasonable belief that the plaintiffs had committed the
offenses with which they were charged. In my opinion, these questions in this particular case must
be determined by a jury.
         The district court found, and I totally agree, that “[t]here may be enough evidence to create
a genuine issue of material fact regarding Pearson’s alleged omissions and mischaracterizations
regarding Bracey’s and Anderson’s statements.” J.A. at 46. The court nevertheless found, with
reference to both questions of probable cause for plaintiffs’ arrests and probable cause to bind
plaintiffs over for trial, that “Wilson’s eyewitness report” alone established probable cause. J.A. at
49. For the reasons discussed earlier, I believe that Wilson’s statements made prior to plaintiffs’
arrests, when considered with all of the facts and circumstances known to Pearson at the time of the
arrests, were not sufficient, on Pearson’s motion for summary judgment, to establish probable cause
for the arrests.
        In determining whether probable cause existed for the initiation of criminal proceedings
against plaintiffs, however, the court may consider not only the evidence that existed at the time of
the arrests but also other evidence gathered before criminal charges were actually filed. Therefore,
although Wilson’s eyewitness identification of plaintiffs at the police lineups could not be
considered in determining whether probable cause existed at the time plaintiffs were arrested, it may
be considered in determining whether probable cause existed to file criminal charges against them,
because the lineups took place before Pearson prepared his report and charges were filed. Indeed,
the issue of probable cause for the prosecution of plaintiffs essentially hinges on Wilson’s personal
identification of them because, as Pearson himself noted in his Progress Notes, her statement was
out of line with the statements of all other witnesses.
        Wilson’s eyewitness identification at the police lineups, however, does not conclusively
establish probable cause. This court has held:
               An eyewitness identification will constitute sufficient probable cause
               “unless . . . there is an apparent reason for the officer to believe that
               the eyewitness ‘was lying, did not accurately describe what he had
               seen, or was in some fashion mistaken regarding his recollection of
               the confrontation.’” This comports with the general notion that, since
Nos. 05-1371/1373                   Peet, et al. v. City of Detroit, et al.                                  Page 24


                  eyewitnesses’ statements are based on firsthand observations, they
                  are generally entitled to a presumption of reliability and veracity.
Ahlers v. Schebil, 188 F.3d 365 (6th Cir. 1999) (internal citations omitted).
         Similarly, in Wilson v. Russo, the court said:
                  The defendants maintain that a positive identification by a victim is
                  sufficient by itself to establish probable cause that the identified party
                  was the offender. While we agree that a positive identification by a
                  victim witness, without more, would usually be sufficient to establish
                  probable cause, this qualified precept cannot be rendered absolute.
                  Independent exculpatory evidence or substantial evidence of the
                  witness's own unreliability that is known by the arresting officers
                  could outweigh the identification such that probable cause would not
                  exist. Each case must therefore be examined on its facts.
212 F.3d at 790 (emphasis added).
        For all of the reasons discussed earlier, I believe that Pearson had good reason to believe that
Wilson, his key witness, was not a credible witness. It is undisputed that, no later than May 2, 2000,
long before the preliminary hearing on May 24, 2000, he came to question her credibility. His
Progress Notes on May 2, 2000 indicate that her statement was out of line with those of the other
witnesses and he planned for Wilson to take a polygraph test. It is not clear from the record,
however, whether he ever communicated this doubt to the prosecutor or to the preliminary hearing
judge who bound plaintiffs over for trial or, if he did, when this was done. Pearson himself testified
that he did not put that extremely exculpatory fact in his investigative report: “If any of us have any
doubtfulness, then we’ll let the prosecutor know maybe on a piece of paper that witness may be
questionable, but it never goes into the investigative report.” J.A. at 365. There is absolutely no
evidence that Pearson ever noted his doubtfulness “on a piece of paper” given to the prosecutor.9
         In my view, if Pearson concealed from the prosecutor his doubts about the credibility of his
key witness, or did not make such a disclosure at a time and in a manner for this exculpatory
information to be properly given to defense counsel and considered by the magistrate judge at the
preliminary hearing, Wilson’s eyewitness identification of the plaintiffs at the police lineups should
be given little or no consideration in determining whether there was, in fact, probable cause for the
initiation and maintenance of the criminal prosecution against plaintiffs.
        Moreover, as noted in Wilson v. Russo, the substantial evidence of Wilson’s unreliability and
the other independent exculpatory evidence known to Pearson could well outweigh the value of
Wilson’s eyewitness identification such that probable cause would not exist. 212 F.3d at 790. At
the very least, this is a question for a jury and not for the judge on defendants’ motion for summary
judgment.
       With regard to the remaining suggested element, it is clearly, in my view, also a jury question
as to whether a police officer in Pearson’s position would have known that the facts and
circumstances were not sufficient to justify a reasonable belief that the plaintiffs had committed the
offenses with which they were charged.



         9
           At some point, Pearson apparently turned his Progress Notes over to the prosecutor, but it is not clear when
he did so. J.A. at 44, J.A. at 472.
Nos. 05-1371/1373                    Peet, et al. v. City of Detroit, et al.                                Page 25


        While, in my opinion, construing the evidence in the light most favorable to the plaintiffs,
it was error for the district court to find that Wilson’s “eyewitness report” alone was sufficient to
establish probable cause for the arrest and prosecution of plaintiffs, there remains the issue of
whether plaintiffs are estopped from asserting their claims for malicious prosecution because of the
preliminary hearing finding of probable cause.
         C.        Preliminary Hearing Finding of Probable Cause to Hold Defendants for Trial
                   as Collateral Estoppel on the Issue of Probable Cause for the Prosecution
        The majority finds that the district court “properly granted summary judgment to the officers
as to Spencer’s claim for malicious prosecution,” because “Spencer has the problem of the judicial
determination   of probable cause following the evidentiary preliminary hearing.” Maj. Op. Section
II(C).10 The majority finds that because there is no evidence that Pearson or the county prosecutor
supplied the magistrate judge at that hearing with any false information to establish probable cause,
plaintiffs are collaterally estopped from relitigating the issue.
       For the following reasons, I do not believe that the preliminary hearing in this case judicially
precludes plaintiffs from pursuing their claims that the initiation and maintenance of the criminal
proceedings following their arrests were without probable cause.
        First, under Michigan law of collateral estoppel, one of the four critical requirements is that
“the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue
in the earlier proceeding.” Darrah, 255 F.3d at 311. Based on the limited evidence in the record,
I believe that it has not been shown that plaintiffs had a full and fair opportunity to litigate the issue
of probable cause at the evidentiary preliminary hearing held on May 24, 2000.
         As noted earlier, it is not clear whether Pearson ever conveyed his doubts concerning the
credibility of his key witness, Feanda Wilson, to the prosecutor or to anyone else prior to that
hearing. According to plaintiffs, after Pearson came to question Wilson’s credibility, he did not go
to the prosecutor. “He does nothing about that he doesn’t come forth, he doesn’t go to the
prosecutor, he doesn’t tell anybody about it.” J.A. at 467. It is also alleged, and not denied, that this
exculpatory information was not presented at the preliminary hearing. Appellants’ Brief p. 29.

        It is also difficult to tell, based on the limited record before us, what exculpatory evidence,
if any, was made available and was presented at the preliminary hearing.11 Along with the request
for an arrest warrant, Pearson allegedly “turned over all inculpatory and exculpatory statements to
the prosecutor and to the defense attorney.” J.A. at 462. However, many witness statements were
not taken until after the date the warrant request was prepared. J.A. at 471. The record on appeal
does not indicate when these additional statements, some of which were clearly exculpatory, were
turned over. At the hearing on the motions for summary judgment, counsel for plaintiffs indicated
that some of this evidence, which was within Pearson’s exclusive control, was not made available
until the criminal trial. J.A. at 468. Plaintiffs apparently subpoenaed McGlory and Bracey to testify
at the preliminary hearing, but these witnesses failed to appear. J.A. at 276. According to plaintiffs
– and it does not appear to be denied by Pearson:
                   We didn’t even have the opportunity to put on McGlory or Bracey at
                   the preliminary exam. The judge didn’t allow us. They weren’t

         10
             It is a problem shared by Peet and Spencer; both made claims of malicious prosecution and both were bound
over for trial following the preliminary hearing.
         11
              The record on appeal includes only 11 pages of a 78-page transcript. J.A. at 276-286.
Nos. 05-1371/1373              Peet, et al. v. City of Detroit, et al.                          Page 26


               subpoenaed by the prosecutor. There wasn’t a continuance granted.
               We didn’t have the opportunity to present Latham at the preliminary
               exam. We didn’t have an opportunity to present Marion Benton or
               John Anderson at the preliminary exam. We didn’t have the
               opportunity to present Ken Smith at the preliminary exam.
J.A. at 469. Under these circumstances, I believe that there are genuine issues of material fact as
to whether plaintiffs had a “full and fair” preliminary hearing.
        Second, we review the district court’s grant of summary judgment de novo. Sperle v.
Michigan Dep’t of Corr., 297 F.3d 483, 490 (6th Cir. 2002). In accordance with the established
precedents of this court, in a § 1983 action the existence of probable cause is a question of fact to
be determined by a jury, unless there is only one reasonable determination possible. Gregory, 444
F.3d at 743; Gardenhire, 205 F.3d at 315. Moreover, we must review the evidence in a light most
favorable to the plaintiffs and draw all reasonable inferences in their favor. Voyticky v. Village of
Timberlake, 412 F.3d 669, 675 (6th Cir. 2005). Under the circumstances of this particular case, in
my opinion, there is, at the very least, a jury question presented as to both the probable cause for
plaintiffs’ arrests and probable cause for plaintiffs’ prosecutions, both in alleged violation of the
Fourth Amendment to the United States Constitution.
       D.      Qualified Immunity
        Finally, it is necessary to apply the two-step inquiry discussed above to determine whether
Pearson is entitled to qualified immunity on plaintiffs’ claims of wrongful prosecution. Viewing
the evidence in a light most favorable to plaintiffs, Pearson violated their Fourth Amendment rights
by his conduct in influencing and participating in the decision to prosecute them. See Spurlock, 167
F.3d at 1005 (fabricating evidence and manufacturing probable cause, and wrongfully investigating
and prosecuting the plaintiffs constituted a violation of the Fourth Amendment). Moreover, as the
court noted in Spurlock, the right to be free from malicious prosecution is clearly established under
the Fourth Amendment. Id. at 1006 (citing Smith v. Williams, No. 94-6306, 1996 WL 99329, at *5
(6th Cir. Mar. 6, 1996)). Because Pearson’s conduct was not objectively reasonable in light of
clearly established law, he is not entitled to qualified immunity on plaintiffs’ claims of wrongful
prosecution.
III.   Conclusions
       My conclusions are that :
       1.      The summary judgment in favor of Pearson and the City of Detroit on plaintiffs’
               claims of being arrested without probable cause should be reversed as to both
               Spencer and Peet.
       2.      The case should be remanded to the district court for further proceedings on
               plaintiffs’ claims of being arrested without probable cause because:
               a.      No jury issue is presented as to the arrest of Peet without probable
                       cause. The undisputed facts show that Peet was illegally arrested
                       without a warrant and that he is entitled to summary judgment
                       against Pearson on this claim.
               b.      There is a genuine issue of material fact as to whether Peet’s illegal
                       arrest was caused by the City of Detroit’s policy of arresting
                       witnesses to crimes.
Nos. 05-1371/1373           Peet, et al. v. City of Detroit, et al.                          Page 27


             c.     A jury issue of whether there was probable cause for Spencer’s
                    warrantless arrest is presented by the facts and circumstances of the
                    case in view of the false inculpatory statements and the omitted
                    exculpatory statements made by Pearson in his investigative report
                    submitted to the prosecuting attorney and, in turn, to the judge.
             d.     Pearson is not entitled to qualified immunity on plaintiffs’ claims of
                    arrest without probable cause.
      3.     The case should be remanded to the district court for further proceedings on
             plaintiffs’ claims of being wrongfully prosecuted because:
             a.     There is a genuine issue of material fact as to whether there was
                    probable cause for the prosecution of plaintiffs; and
             b.     There is a genuine issue of material fact as to whether plaintiffs are
                    estopped from asserting their claims of wrongful prosecution.
             c.     Pearson is not entitled to qualified immunity on plaintiffs’ claims of
                    wrongful prosecution.
             For the above reasons, I respectfully dissent.
