                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0304n.06

                                           No. 19-1612

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 DAVONTAE SANFORD,                                   )
                                                                                    FILED
                                                     )                        May 28, 2020
         Plaintiff-Appellee,                                              DEBORAH S. HUNT, Clerk
                                                     )
                                                     )
         v.
                                                     )
                                                     )           ON APPEAL FROM THE
 CITY OF DETROIT, MICHIGAN,                                      UNITED STATES DISTRICT
                                                     )
         Defendant,                                  )           COURT FOR THE EASTERN
                                                     )           DISTRICT OF MICHIGAN
 MICHAEL RUSSELL, and JAMES TOLBERT, in )
 their individual capacities, jointly and severally, )
         Defendants-Appellants.                      )


       Before: COLE, Chief Judge; McKEAGUE and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Davontae Sanford was exonerated after he had spent nine

years in prison for murder. Sanford thereafter sued two of the police officers who investigated

him, alleging that they had fabricated evidence and otherwise violated his constitutional rights. In

a thorough opinion, the district court denied the officers qualified immunity. We affirm.

       We take the district court’s view of the facts in the light most favorable to Sanford. See

DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 611 (6th Cir. 2015). On the night of September 17,

2007, a hitman, Vincent Smothers, and his accomplice fatally shot four people inside a home on

Runyon Street in Detroit. Within an hour, Detroit police officers, including Michael Russell and

James Tolbert, responded to the crime scene.

       Shortly after midnight, Russell was canvassing the neighborhood when he met Davontae

Sanford, then 14 years-old, walking on the street. Russell began questioning Sanford, who denied
No. 19-1612, Sanford v. Detroit


seeing anything unusual. Russell and Tolbert then walked Sanford home and received permission

from his grandmother to continue questioning him. The officers put Sanford in a police car, bought

him a cheeseburger at a local restaurant, and asked Sanford about crime in the neighborhood.

Sanford named some local drug dealers, but said nothing about the Runyon Street murders. Russell

then drove Sanford to the police station. Beginning around 4 a.m., Russell questioned Sanford for

several more hours, but Sanford did not confess to the murder. Later that morning, the officers

took him home.

       That night, Russell picked up Sanford to question him again. During the drive to the

station, Russell accused Sanford of lying during the first interview, and told him—falsely—that

his shoes had tested positive for blood. At the station, Russell showed Sanford photographs of the

victims at the crime scene, saying, “This is not a game. These people lost their lives.” Russell

again questioned Sanford for hours, this time sharing details about the shooting. Eventually

Tolbert joined them and sketched the crime scene’s layout in detail. Then Tolbert told Sanford to

draw the location of the bodies on the sketch. Sanford did so, based on the crime-scene

photographs Russell had shown him earlier. At the end of the interview, Russell drafted a false

confession and Sanford signed it. The officers then arrested Sanford.

       Russell and Tolbert thereafter told prosecutors that Sanford had drafted the confession and

drawn the sketch on his own. These two documents were critical evidence in the decision to charge

Sanford and later, during his 2008 bench trial. At trial, Russell testified that Sanford had confessed

and drawn the sketch. Then Sanford pled guilty.

       Sanford was thereafter sentenced to 37 to 90 years’ imprisonment. But just two weeks

later, during a break in a police interrogation, Smothers told Russell that he had committed the

Runyon Street murders. Yet neither Russell nor Tolbert investigated Smothers further.



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       In 2015, the Michigan State Police began investigating potential officer misconduct during

the Runyon Street investigation. Tolbert eventually admitted that he fabricated the crime-scene

sketch attributed to Sanford. As a result of that investigation—after Sanford had already served

nine years in prison—the prosecutor’s office and Sanford’s counsel stipulated to the dismissal of

the charges against him.

       Sanford thereafter brought this suit under 42 U.S.C. § 1983, claiming among other things

that Russell and Tolbert had fabricated evidence, coerced his confession, and maliciously

prosecuted him. The officers moved for summary judgment, which the district court denied on

the ground that they were not entitled to qualified immunity for their actions. This appeal followed.

       We review de novo the district court’s denial of qualified immunity, but our interlocutory

jurisdiction is limited to questions of law. See Bey v. Falk, 946 F.3d 304, 311–12 (6th Cir. 2019).

Determinations of qualified immunity require us to answer two questions: first, whether the officer

violated a constitutional right; and second, whether that right was clearly established in light of the

specific context of the case. See Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011). We can

answer those questions in whichever order we see fit. Id.

       Russell and Tolbert argue that they are entitled to qualified immunity against Sanford’s

claim that they fabricated evidence against him. In doing so, they brazenly seek to have us revisit

the district court’s assessment of the relevant evidence, which in this interlocutory appeal we will

not do. See DiLuzio, 796 F.3d at 609–10.

       The Fourteenth Amendment bars an officer from knowingly creating false evidence to

obtain a conviction. See Jackson v. City of Cleveland, 925 F.3d 793, 825–26 (6th Cir. 2019);

Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997). Here, as the district court correctly

held, a jury could find precisely that. Specifically, the evidence would allow a jury to find that



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Tolbert fabricated a misleading sketch, that Russell drafted a false confession, and that together

they attributed both pieces of evidence to Sanford when they gave evidence for the case to the

prosecutor. The officers therefore are not entitled to qualified immunity on this claim.

       Nor are the officers entitled to qualified immunity on the coerced-confession claim. The

Fifth and Fourteenth Amendments bar the use of confessions that police obtain by objectively

coercive means. See Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir. 1994) (collecting cases).

A “broken or illusory” promise of leniency may be objectively coercive. See United States v.

Johnson, 351 F.3d 254, 262 (6th Cir. 2003). The same is true for interrogating an adolescent for

many hours, late at night, without an attorney present. See, e.g., Gallegos v. Colorado, 370 U.S.

49, 54–56 (1962); Haley v. Ohio, 332 U.S. 596, 599 (1948) (plurality opinion).

       Here, a jury could find that Russell and Tolbert questioned a 14-year-old boy in the middle

of the night, for hours at a time, without a parent or attorney present; that they did so for two nights

in a row; that Russell falsely told Sanford that officers had found blood on his shoes; and that

Russell falsely promised that Sanford could go to school the next day if he hurried up and

confessed. The law made clear enough that these tactics, under these circumstances, were likely

coercive. See Harris v. Bornhorst, 513 F.3d 503, 512 (6th Cir. 2008).

       Nor are the officers entitled to qualified immunity on the malicious-prosecution claim.

“The prototypical case of malicious prosecution involves an official who fabricates evidence that

leads to the wrongful arrest or indictment of an innocent person.” Mills v. Barnard, 869 F.3d 473,

480 (6th Cir. 2017). Here, for the reasons stated by the district court, a jury could find that Russell

and Tolbert fabricated critical evidence, which they passed off to prosecutors as authentic, which

in turn caused Sanford to be imprisoned for nine years. Russell and Tolbert “cannot seriously

contend that a reasonable police officer would not know” that these actions would violate



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No. 19-1612, Sanford v. Detroit


Sanford’s constitutional rights. Spurlock v. Satterfield, 167 F.3d 995, 1005–06 (6th Cir. 1999).

And Sanford lacks any “outstanding criminal judgment” that would bar his malicious-prosecution

claim. See Heck v. Humphrey, 512 U.S. 477, 487 (1994).

       The officers’ remaining arguments are based on factual disputes, which we lack jurisdiction

to review. See Bey, 946 F.3d at 311–12.

       The district court’s order is affirmed.




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