                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0018n.06
                            Filed: January 8, 2007

                                           No. 05-4445

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


AL FRANKLIN,                                     )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )
                                                 )    ON APPEAL FROM THE UNITED
MIAMI UNIVERSITY, et al.,                        )    STATES DISTRICT COURT FOR THE
                                                 )    SOUTHERN DISTRICT OF OHIO
       Defendants,                               )
                                                 )
DONALD FOX; YOUNG; AYERS,                        )
                                                 )
       Defendants-Appellants.                    )


       Before: CLAY and SUTTON, Circuit Judges; and SHARP, District Judge.*


       SUTTON, Circuit Judge. Al Franklin filed a § 1983 claim against Officer Donald Fox and

two other officers, claiming that they lacked probable cause under Ohio law to arrest him for

criminal menacing. The district court denied the officers’ claims of qualified immunity. Because

the officers had probable cause as a matter of law to arrest Franklin, we reverse.


                                                 I.




       *
         The Honorable Allen Sharp, United States District Judge for the Northern District of
Indiana, sitting by designation.
No. 05-4445
Franklin v. Miami Univ., et al.

       On February 28, 2002, Al Franklin, a building services worker at Miami University, was

cleaning restrooms in Harris Dining Hall. Because Franklin preferred that “other employees not use

the restroom while [he] was cleaning it,” he “posted a sign on the bathroom door advising that [he]

was cleaning it” and requesting others “to please use a different restroom.” JA 164. Franklin had

posted this sign before. Ignoring the request, as he had before, one of Franklin’s coworkers, John

Johnston, entered the restroom while Franklin was cleaning it. Franklin asked Johnston to refrain

from using the restroom, but Johnston refused.


       Frustrated by Johnston’s conduct, Franklin spoke to his manager, Veronica Collopy, about

the situation. As they were discussing the problem, Johnston walked by and said that he “was a

grown man and didn’t need [Franklin’s] permission to use the restroom.” Id. Franklin began

following Johnston and started “scream[ing]” at him. JA 95. Franklin then “moved close to

Johnston’s face in a threatening manner,” id., and told him that he “should knock the f**k out of

him,” id. Franklin eventually returned to work, and Johnston called the Miami University Police

Department and “requested police assistance.” JA 113. The department dispatched Officer Fox to

the scene.


       When Fox arrived, he interviewed Johnston and Collopy. After relating the incident to Fox,

both witnesses noted that “this was one of the many times that Franklin had threatened coworkers”

and that he “had a hot temper.” JA 95. Johnston also stated that “he was fearful for his safety” and

that “he believed Franklin was capable of violence.” Id. “It was clear to me,” Fox observed, “that



                                                 -2-
No. 05-4445
Franklin v. Miami Univ., et al.

Mr. Johnston took the threat to his safety very seriously.” Id. “Johnston’s fears were corroborated

by Ms. Collopy,” id., who “had serious concerns” that Franklin would harm Johnston, JA 91.


       After consulting with his superior officer, Officer Fox arrested Franklin for criminal

menacing under Ohio law—a misdemeanor of the fourth degree. See O.R.C. § 2903.22. The arrest

occurred within an hour of Franklin’s encounter with Johnston.


       Franklin filed a number of claims against Miami University and nine employees of the

university. The district court granted summary judgment in favor of all of the defendants on all of

the claims save for the false-arrest claim against Officer Fox and against “Officer Young Ayers,”

described as a second officer who assisted Fox. (In truth, it appears that plaintiff meant to name two

assisting officers—Officer Young and Officer Ayers. See JA 97.) In this interlocutory appeal, the

officers submit that they are entitled to qualified immunity.


                                                 II.


       Saucier v. Katz, 533 U.S. 194 (2001), frames our review of the district court’s disposition

of the officers’ qualified-immunity defense. First, we must “determine whether, on the facts alleged,

a constitutional violation could be found.” Id. at 207. If so, we then ask “whether the law clearly

established that the officer[s’] conduct was unlawful in the circumstances of the case.” Id. at 202.

       As to the first question, the constitutional question, “[i]t has long been true that the Fourth

Amendment requires probable cause for an arrest.” Lyons v. City of Xenia, 417 F.3d 565, 573 (6th

Cir. 2005). The issue is whether the officers possessed “reasonably trustworthy information . . .

                                                -3-
No. 05-4445
Franklin v. Miami Univ., et al.

sufficient to warrant a prudent man in believing” that Franklin violated Ohio’s criminal-menacing

statute. Beck v. Ohio, 379 U.S. 89, 91 (1964).


       Under that law, “No person shall knowingly cause another to believe that the offender will

cause physical harm to the person or property of the other person . . . .” O.R.C. § 2903.22(A). To

establish probable cause that Franklin violated the statute, Officer Fox needed trustworthy evidence

that Franklin “knowingly” caused the victim (Johnston) “to believe” that he “will cause physical

harm” to him. The undisputed record, in our view, shows just that.


       Consider what Officer Fox determined through his investigation before he arrested Franklin.

The victim told Fox that Franklin said that he “should knock the f**k out of him.” JA 95. And the

victim told the officer that “he was fearful for his safety” and that “he believed Franklin was capable

of violence.” Id. Collopy, who witnessed the entire event, squarely supported the victim’s account.

She told Fox that Franklin “moved close to Johnston’s face in a threatening manner” during the

encounter. Id. And she stated that she “had serious concerns” that Franklin would harm Johnston.

JA 91. Nor, she noted, was this the first time that Franklin had made such a threat. Both Johnston

and Collopy told Officer Fox that “this was one of the many times that Franklin had threatened

coworkers” and that he “had a hot temper.” JA 95.


       “A law enforcement officer is entitled to rely on an eyewitness identification”—to say

nothing of two eyewitness identifications—“to establish adequate probable cause with which to

sustain an arrest.” Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999); see id. (noting that “since


                                                 -4-
No. 05-4445
Franklin v. Miami Univ., et al.

eyewitnesses’ statements are based on firsthand observations, they are generally entitled to a

presumption of reliability and veracity”). Given the statements of the two eyewitnesses, Johnston

and Collopy, Officer Fox possessed probable cause to arrest Franklin. Johnston plainly “believe[d]”

that Franklin was going to “physically harm” him, as shown by his words (he was “fearful for [his]

safety,” JA 113), and his actions (he “immediately” called the police and “requested police

assistance,” id.). Collopy’s ring-side view of the encounter leaves no doubt about the accuracy of

Johnston’s observations. In “corroborat[ing]” Johnston’s account, JA 95, Collopy told Officer Fox

that Franklin “moved close to Johnston’s face in a threatening manner,” id., and told him that she

“had serious concerns” that Franklin would harm Johnston, JA 91. Armed with this information and

faced with no contradictory evidence, Officer Fox (and Officers Young and Ayers) had probable

cause to arrest Franklin for violating Ohio’s menacing statute.


       Franklin offers several contrary arguments, all unpersuasive. He first points out that there

is a fact dispute about whether Officer Fox was told that Franklin “should” or “ought to” “knock”

Franklin “the f**k out.” Johnston, it is true, told Officer Fox that Franklin used the word “should,”

while Collopy told Fox that Franklin used the word “ought to.” But Franklin offers no reason why

it would make a difference which helping verb Franklin used; they convey the same meaning. See

Webster’s Third New International Dictionary 1599 (2002) (stating that “‘ought’ and ‘should’ are

often interchangeable”).


       Also deficient is Franklin’s reliance on his affidavit in the case indicating that he said that

he “could knock the f**k out of [Johnston].” JA 165. As an initial matter, all agree that Officer Fox

                                                -5-
No. 05-4445
Franklin v. Miami Univ., et al.

never interviewed Franklin, so this verbal formulation of the threat was not—and never could have

been—presented to him. No less importantly, given the uncontradicted evidence showing that

Johnston “believed” that Franklin would “physically harm” him, it is difficult to maintain that the

usage of this helping verb over the two other possibilities would have made a difference in the

probable-cause calculation. The difficult relationship between the two employees, which predated

the incident, and Franklin’s decision to match his words with deeds, by moving aggressively toward

Johnston as he spoke, both indicate that the usage of “could” in this physically threatening context

still had the potential to create a legitimate fear of physical harm. Whichever helping verb Franklin

used, in other words, his other undisputed language and actions sufficed to give the officers probable

cause that Johnston believed he was physically at risk


       In claiming that the officers did not sufficiently investigate the incident because they failed

to interview him, Franklin is mistaken. Before arresting Franklin, Fox obtained “an eyewitness”

account of the incident from the victim, Ahlers, 188 F.3d at 370, and spoke to Collopy who also

witnessed the encounter and who supported the victim’s account of what happened. “Once probable

cause [was] established,” and the evidence supplied by these witnesses did just that, the officers were

“under no duty to investigate further or to look for additional evidence which may exculpate the

accused . . . nor should a plausible explanation in any sense require the officer[s] to forego arrest

pending further investigation if the facts as initially discovered provide probable cause.” Id. at 371

(internal quotation marks omitted).




                                                 -6-
No. 05-4445
Franklin v. Miami Univ., et al.

        “[A]n eyewitness identification,” to be sure, will not suffice to establish probable cause if,

“at the time of the arrest, 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.” Ahlers, 188 F.3d at 370. But what “apparent reason” was there

for discounting Johnston’s account? Officer Fox had not just “an eyewitness identification”

(emphasis added), but two eyewitness identifications. The uncontradicted record shows that Officer

Fox spoke to Collopy before the arrest, that she “corroborat[ed]” Johnston’s account, JA 95, and that

she told Officer Fox the following before the arrest: that Franklin “moved close to Johnston’s face

in a threatening manner,” id., that she “had serious concerns” that Franklin would harm Johnston,

JA 91, and that Franklin has an “explosive personality” and had created a “hostile” environment at

the university, JA 94. At the time, “she was gravely concerned that [Franklin] would harm

[Johnston]” and she “believe[d] that he would have done so if [she] had not been present.” JA 90.


        That Collopy recounted some of this information in an affidavit filed “after she was named

as a defendant in the instant lawsuit,” Dissent at 6 n.2, is of no moment—and hardly unusual to boot.

The same can be said of Franklin’s affidavit, which also was submitted after the lawsuit was filed—a

point that presumably explains why Franklin does not make this argument. Given Collopy’s

corroboration of the verbally and physically threatening manner in which Franklin approached

Johnston, it also is hard to see why Johnston’s verbal response to Franklin’s threat—“[D]id you hear

that”? JA 94; see Dissent at 4—gave Officer Fox an “apparent reason” to believe that Johnston was

lying. What after all is wrong with a victim confirming what happened with an eyewitness before


                                                  -7-
No. 05-4445
Franklin v. Miami Univ., et al.

calling the police? Nothing, we respectfully submit, and certainly nothing that casts doubt on the

uncontradicted testimony of these two eyewitnesses. Lacking any exculpatory evidence that called

into question the accounts of these witnesses, the officers had no duty to interview Franklin once

probable cause had been established.


       Neither does the record support the contention that Johnston was “the instigator of the

conflict” who somehow had this coming to him. Dissent at 3. This was not Franklin’s first

disagreement with a fellow employee who sought to use a restroom that Franklin was cleaning. As

Franklin himself acknowledged, he had had similar problems with other employees. See JA 164;

cf. id. at 91. The common denominator in all of these conflicts was Franklin, not Johnston. Either

way, whether the underlying source of the disagreement was Franklin or Johnston, Franklin had no

license to threaten physical harm to Johnston—which is what two witnesses told Officer Fox had

happened.


       Nor, contrary to Franklin’s contention, see App’ee Br. at 25–28, does it make a difference

whether he was guilty of menacing. The question is whether the officers had probable cause that he

engaged in menacing. And that is why, contrary to the dissent’s contention, see Dissent at 2–3,

neither State v. Dennis, 678 N.E.2d 996 (Ohio Ct. App. 1996), nor State v. Dechant, No. 9406, 1985

WL 4771 (Ohio Ct. App. Dec. 19, 1985), advances Franklin’s position. Both cases did not involve

probable-cause determinations. They instead considered whether beyond-a-reasonable-doubt proof

supported jury verdicts under the statute. Worse, they involved encounters in which the conduct of

the alleged victims undermined any claim that they felt physically threatened. In Denis, “the

                                              -8-
No. 05-4445
Franklin v. Miami Univ., et al.

complainant himself testified that he did not feel threatened by [the] appellant’s claim” and “laughed

off the threat.” 678 N.E.2d at 998. In Dechant, the court found the record “totally devoid of any

evidence that complainant believed that defendant would cause physical harm to his person or

property.” 1985 WL 4771, at *2–3. Just the opposite is true in this case. Given the totality of

circumstances reported to the officers during their investigation, they could reasonably conclude that

they had probable cause to arrest Franklin.


                                                 III.


       For these reasons, we reverse.




                                                -9-
No. 05-4445
Franklin v. Miami Univ., et al.

       CLAY, Circuit Judge, dissenting. Officer Fox ignored exculpatory facts suggesting that

Franklin had not committed the crime of menacing when he determined that he had probable cause

to arrest Franklin. The record is replete with evidence from which a jury could conclude that the sum

of what transpired between Johnston and Franklin was simply an argument which did not leave

Johnston feeling threatened. Because a reasonable jury could look at the totality of the circumstances

and conclude that probable cause did not exist, I would affirm the decision of the district court.


       I agree with the majority that, under the law of this Circuit, “[o]nce probable cause is

established, an officer is under no duty to investigate further or to look for additional evidence which

may exculpate the accused.” Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999). A suspect

accused of a crime possesses a strong motive to lie, and if every suspect’s exculpating story had to

be independently verified by police, an accused could avoid arrest “simply by claiming ‘it wasn’t

me.’” Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988). Probable cause is not equivalent to

proof beyond a reasonable doubt, and the law requires only a “fair probability” that an individual has

committed a crime before allowing that individual to suffer the loss of liberty that accompanies an

arrest. See Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002).


       The rule that there is no duty to conduct a further investigation after probable cause is

established, however, coexists with the tempering rule that police officers cannot cherry-pick facts

in determining that probable cause exists. “Rather, the officer must consider the totality of the

circumstances, recognizing both the inculpatory and exculpatory evidence, before determining if he

has probable cause to make an arrest.” Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000).

                                                 - 10 -
No. 05-4445
Franklin v. Miami Univ., et al.

When facts that suggest that a defendant did not commit the crime are known to an officer, those

facts cannot be ignored in making the probable cause determination. Ahlers, 188 F.3d at 371-72;

see also Gardenhire, 205 F.3d at 318 (requiring probable cause to be determined at the time the

arrest occurred because the factors that determined probable cause shifted as the day went on); Kuehl

v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (“An officer contemplating an arrest is not free to

disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself)

suggests that probable cause exists.” (citing Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988))).

A contrary rule would undermine the liberty interests protected by the Fourth Amendment by

“leav[ing] law-abiding citizens at the mercy of the . . . whim or caprice” of officers who could act

on their subjective compilation of the facts, without regard to the objective realities of the situation.

Cf. Brinegar v. United States, 338 U.S. 160, 176 (1949).


        In the case before us, Franklin was convicted of menacing under Ohio Revised Code §

2903.22(A). Under Ohio law, menacing has three elements: “(1) knowingly, (2) causing another to

believe, (3) that the offender will cause physical harm to the person or property of such other person

or a member of his immediate family.” Fairfield v. McRoberts, 654 N.E.2d 370, 371 (Ohio Ct. App.

1995). Verbalized expressions of anger will not constitute a violation of the menacing statute if they

do not cause the victim to feel threatened. See State v. Denis, 678 N.E.2d 996, 998 (Ohio. Ct. App.

1996). On similar facts to the instant case, the Ohio Court of Appeals in State v. Dechant found that

a jury verdict convicting a defendant of menacing could not stand because there was insufficient

proof that the complainant felt threatened. State v. Dechant, No. 9406, 1985 WL 4771, at *1 (Ohio


                                                 - 11 -
No. 05-4445
Franklin v. Miami Univ., et al.

Ct. App. Dec. 19, 1985) (unpublished). In Dechant, the defendant and the complainant were arguing

over the defendant’s plowing of snow onto the complainant’s property. Id. The defendant, who was

within arm’s length of the complainant, said in a loud voice, “‘why, I could beat you to death.’” Id.

The complainant replied, “‘well, possibly you can, you’re a big man, but this is not the place to talk

about it,’” and walked away. Id. Because of the absence of sufficient evidence for the jury to

conclude that the complainant felt threatened, the conviction for menacing could not stand. Id.; see

also Denis, 678 N.E.2d at 998 (overturning menacing conviction where complainant laughed off

defendant’s threat). The majority claims that these cases do not advance Franklin’s position because

they “do not involve probable-cause determinations.” Maj. Op. at 8. In order for Franklin’s arrest

to be constitutional, however, the facts must demonstrate that there was probable cause to believe

that Franklin was guilty of violating O.R.C. § 2903.22(A), the contours of which are defined by the

Ohio courts. Thus, the fact that Ohio courts have held that analogous facts do not as a matter of law

support a conviction for menacing is highly relevant to the inquiry of whether there was probable

cause to arrest Franklin.


       Here, Officer Fox concluded that there was probable cause to arrest Franklin in spite of

evidence that Johnston never felt threatened. Officer Fox failed to consider Johnston’s role as the

instigator of the conflict. The majority claims–somewhat incredibly–that the record does not support

this contention. This claim is belied by the record. Collopy’s statement to the police reports that

Franklin approached her and needed to talk, and that Franklin was upset. Collopy’s statement also

suggests that Franklin had taken the previous interaction with Johnston personally, because he told


                                                - 12 -
No. 05-4445
Franklin v. Miami Univ., et al.

Collopy that “if people have a problem with [me], they could tell [me].” J.A. at 257. There is

nothing to suggest that Franklin was being aggressive in any way at this time. At this point, Johnston

states that he “overheard [Franklin] complaining to [Collopy] about me.” J.A. at 259. Johnston

responded by interrupting the meeting that Franklin had commenced with Collopy to tell Franklin

that he “was a grown man and [Johnston] didn’t need [Franklin’s] permission to use [the restroom]

and that [Franklin] wasn’t cleaning it anyway because [Johnston] saw [Franklin] reading a

newspaper.” J.A. at 259. Franklin “immediately became furious.” J.A. at 259. All of these facts

were before Officer Fox at the time that he chose to arrest Franklin. From this evidence, a jury could

easily conclude that Johnston instigated the conflict.


          The fact that Johnston instigated the conflict is important for two reasons. First, it undercuts

Johnston’s statement that he was fearful for his safety during the incident because Franklin was

capable of violence. Second, Johnston’s instigation of the event supports the view, as the district

court thought was supported by the facts, that Franklin was “letting off steam or ‘verbalizing anger’

but did not express the threat of some future physical harm to Mr. Johnston.” Franklin v. Miami

Univ., No. 1:03-CV-00011, 2005 WL 2397703, at *7 (S.D. Ohio Sept. 28, 2005) (unpublished). I

agree with the majority that the fact that Johnston instigated the conflict does not give Franklin

“license to threaten physical harm.” Maj. Op. at 8. Rather, the fact that Johnston instigated the

conflict instead goes to the likelihood that Franklin caused Johnston to be physically afraid for his

safety.




                                                   - 13 -
No. 05-4445
Franklin v. Miami Univ., et al.

        Officer Fox also disregarded evidence tending to show that Johnston called the police to

report the incident for the purpose of causing Franklin trouble, not because he felt threatened.

According to both Johnston and Collopy, Johnston’s immediate reaction to Franklin’s allegedly

threatening statement was to ask Collopy if she had heard it. This is not the reaction one expects

from a person who feels threatened. A person who truly felt threatened might flee, ask the offender

to calm down, or attempt to convince the offender to not hurt him. A threatened person might

alternatively strike back, either verbally or with preemptive violence. Cf. State v. Bayer, 656 N.E.2d

1314, 1321 (Ohio Ct. App. 1995) (“The rationale for [not requiring the defendant to be capable of

carrying out the threat] is that . . . the victim may be impelled to violence to counter what he believes

to be a real threat.” (quoting Committee Comment to O.R.C. § 2903.21)). Johnston reacted with

none of these responses. Instead, Johnston sought to ensure that he had a witness to what Franklin

said, and then told Franklin that he was going to call the police, exclaiming that Franklin had

threatened him.** In light of these circumstances, the fact that Franklin never expressed a present

intent to harm Johnston, instead limiting his violent words with “could,” “should,” or “ought” is

especially significant, because it reinforces the impression that Franklin was not presently expressing

a desire to harm Johnston. All these facts were known to Officer Fox at the time he arrested




        **
           The majority rhetorically asks “What after all is wrong with a victim confirming what
happened with an eyewitness before calling the police?” Maj. Op. at 7-8. I agree with the majority’s
answer that nothing is wrong with this. This argument, however, begs the question. Johnston is a
victim of menacing only if he was placed in fear of his safety–and the majority does not dispute that
this reaction is inconsistent with fear.

                                                 - 14 -
No. 05-4445
Franklin v. Miami Univ., et al.

Franklin. Given this total mix of information, a reasonable jury could conclude that the facts before

Officer Fox did not amount to probable cause.


       As the majority notes, “[a]n eyewitness identification will constitute sufficient probable cause

unless, at the time of the arrest, 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.” Ahlers, 188 F.3d at 370 (internal quotation marks

and citation omitted). Here, Johnston had a motive to lie. On the view of the facts most favorable

to Franklin, as we must accept for purposes of this appeal, Johnston participated in a heated

argument with Franklin, which Johnston provoked by making a condescending remark to Franklin.

This created a motive for Johnston to have Franklin arrested, namely, to get the better of a person

towards whom Johnston presently felt animosity. Moreover, Johnston was the only witness who

provided Officer Fox with information which suggested that Johnston believed that Franklin would

cause him physical harm–a necessary element of the crime of menacing.*** As discussed above–and


       ***
           The majority’s assertion to the contrary notwithstanding, only Johnston provided Officer
Fox with any information that suggested that Johnston believed that Franklin would cause him
physical harm. The majority claims that Collopy’s statements that Franklin “moved close to
Johnston’s face in a threatening manner” and her “serious concerns that there would be fighting”
demonstrated a fear on the part of Johnston. This argument ignores the unmistakably clear
requirement of O.R.C. § 2903.22(A) that the victim feel threatened. See, e.g., Denis, 678 N.E.2d at
998. As discussed above, the menacing statute is not violated where the victim does not feel
threatened, even if the same conduct might make another person feel threatened. In this case, only
Johnston provided Officer Fox with evidence of his fear, and this testimonial evidenced was belied
by his conduct, which he and Collopy corroborated.
        Collopy states in her affidavit, which was written after she was named as a defendant in the
instant lawsuit, that she believed that Franklin “knowingly caused Mr. Johnston to believe that Mr.
Franklin would cause physical harm to Mr. Johnston. It appeared to me that Mr. Johnston was

                                                - 15 -
No. 05-4445
Franklin v. Miami Univ., et al.

this point is crucial–Johnston’s conduct can reasonably be interpreted as inconsistent with his

professed belief that Franklin would cause him physical harm, thereby giving Officer Fox a reason

to disbelieve Johnston’s account of his fear. When an officer confronts a single witness to a crime

(or an element of a crime), and that witness has a motive to lie, and the facts that the witness reports

to the officer suggest that the witness might in fact be lying, then that single witness account does

not so conclusively equal probable cause that a jury could not find otherwise. See Gardenhire, 205

F.3d at 315-17 (allegation that complainant’s property had been stolen and fact that stolen property

was seen in accuseds’ store window did not give rise to probable cause where other evidence

suggested that no theft occurred).


        Instead of arresting Franklin, there are several steps that Officer Fox could have taken to

ensure that probable cause existed. An obvious step would have been to talk to Franklin. Although

in this case, the facts as relayed by Franklin may have tended to exculpate him, in other cases, a

potential defendant may make statements confirming the genuineness of the threat, thereby


genuinely concerned for his own physical safety.” J.A. at 91. She also states that she was “gravely
concerned that [Franklin] would harm Johnston.” She does not state that she told these facts to
Officer Fox, and her statement taken on the day of the incident is devoid of any such allegation. The
majority claims that this fact is “of no moment.” Maj. Op. at 7. This argument misses the point:
Probable cause must be determined from the point of view of the officer at the time of the arrest.
Swiecicki v. Delgado, 463 F.3d 489, 499 (6th Cir. 2006) (citing Hunter v. Bryant, 502 U.S. 224, 228
(1991)). Thus, the fact that Collopy does not claim to have told these facts to Officer Fox is not “of
no moment;” it is crucial.
        Although Officer Fox, in his affidavit, states that “Mr. Johnston’s fears were corroborated
by Ms. Collopy,” he gives no details as to how or when Collopy corroborated those fears, and offers
no specific facts. This vague and conclusory statement does not provide any appreciable support to
Officer Fox, especially considering the absence of any evidence of Johnston’s fear in Collopy’s
statement to the police made at the time of the incident.

                                                 - 16 -
No. 05-4445
Franklin v. Miami Univ., et al.

strengthening the inference that the complainant felt threatened. Alternatively, Officer Fox could

have questioned Johnston or Collopy about the exculpatory facts, and if they provided a satisfactory

explanation, Officer Fox could have proceeded to arrest Franklin. There is no evidence that Officer

Fox took either of these steps.


        Of course, a jury could find that these facts amounted to probable cause. Probable cause in

a § 1983 matter is a question for the jury unless there is only one reasonable determination. Pyles

v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (citing Yancey v. Carroll County, 876 F.2d 1238, 1243

(6th Cir. 1989)).   The majority, however, deprives a jury of the opportunity to make this

determination, and forecloses the possibility that the jury could view the case as Franklin does: As

an instance where Franklin released his anger through words, and Johnston acted upon his anger by

instigating a baseless and damaging prosecution against Franklin. Officer Fox knew facts suggesting

that this was the true nature of the altercation. The jury should have been allowed to determine

whether these facts were sufficiently compelling to require the conclusion that Officer Fox acted

unreasonably in seizing Franklin. I respectfully dissent, and would affirm the judgment of the

district court.




                                               - 17 -
