                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 17a0005p.06

                 UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


 AMY SANDERS,                                        ┐
                               Plaintiff-Appellee,   │
                                                     │
                                                      >      No. 15-6384
       v.                                            │
                                                     │
                                                     │
 LAMAR JONES,                                        │
                            Defendant-Appellant.     │
                                                     ┘
                      Appeal from the United States District Court
                    for the Western District of Tennessee at Jackson.
                   No. 1:14-cv-01239—J. Daniel Breen, District Judge.

                               Argued: October 18, 2016

                          Decided and Filed: January 9, 2017

            Before: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.

                                  _________________

                                      COUNSEL

ARGUED: Amanda S. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellant. Leanne Thorne, THORNE & THORNE, Lexington,
Tennessee, for Appellee. ON BRIEF: Amanda S. Jordan, Michael C. Polovich, OFFICE OF
THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Leanne
Thorne, THORNE & THORNE, Lexington, Tennessee, for Appellee.




                                            1
No. 15-6384                             Sanders v. Jones                              Page 2


                                      _________________

                                           OPINION
                                      _________________

       SUHRHEINRICH, Circuit Judge.

                                      INTRODUCTION

       Defendant Lamar Jones (“Jones”), a police officer with the Decatur County Sheriff’s
Department, conducted a controlled buy of marijuana on May 22, 2013, through a confidential
informant (“CI”) as part of a county-wide drug–bust operation.           Plaintiff Amy Sanders
(“Sanders”) alleges that Jones prepared a misleading police report and gave false grand jury
testimony identifying Sanders as the person who sold the CI drugs. Based on these allegations,
Sanders brought a § 1983 action against Jones for malicious prosecution in violation of the
Fourth Amendment. Jones moved for summary judgment on the basis of absolute and qualified
immunity, and the district court denied both defenses. Jones appeals that decision.

       Jones’s absolute immunity defense presents a question of first impression about how the
Supreme Court’s provision of absolute immunity for grand jury witnesses in Rehberg v. Paulk,
132 S. Ct. 1497 (2012), intersects with the Sixth Circuit’s requirements for malicious prosecution
claims where a grand jury indicted the plaintiff. The issue compels us to revisit the test applied
in Webb v. United States, 789 F.3d 647 (6th Cir. 2015) and other Sixth Circuit cases requiring an
indicted plaintiff to present evidence that the defendant provided false testimony to the grand
jury. In light of Rehberg’s absolute immunity for false grand jury testimony, Rehberg precludes
Sanders’s malicious prosecution claim because she cannot rebut the indictment’s presumption of
probable cause without using Jones’s grand jury testimony.

                                     II. BACKGROUND

       A. Facts

       Jones is a police officer with the Decatur County Sheriff’s Department. Jones began
working as a member of the 24th Judicial District Drug Task Force (“DTF”) in October 2012,
with his operation located in Decatur County, Tennessee. DTF used confidential informants to
No. 15-6384                                        Sanders v. Jones                                   Page 3


identify individuals willing to sell drugs and to purchase drugs from these individuals under
video surveillance. In May 2013, DTF used a CI who identified Sanders as a drug seller. Jones
became acquainted with this CI through Joel Pate (“Pate”), another DTF officer who had
conducted an operation in Carroll County. Pate informed Jones that several other agencies
recommended the CI as a good and credible source, and that the CI facilitated several
convictions in Pate’s DTF operation in Carroll County. The CI was from Memphis and did not
have ties to Decatur County prior to moving to the area for the spring 2013 operation. DTF paid
the CI in cash for each controlled buy. The CI had a criminal drug history, but was not currently
under investigation for drug trafficking or manufacturing.

         The CI’s modus operandi was to make contact with suspected drug sellers, offer to
purchase drugs from them, and ask to meet later to make the purchase. Through this procedure,
the CI became acquainted with a woman he referred to as “Amy.” The CI obtained this woman’s
cell phone number and, monitored by Jones, used the phone number to call her and arrange a
controlled buy on May 22, 2013. The woman did not identify herself during the phone call.
Jones did not attempt to run a search on the owner of the cell phone number. The phone number
actually belonged to Amanda Ramey (“Ramey”), another target of the spring 2013 operation
with whom Jones was familiar. Ramey was Sanders’s roommate at the time of the relevant
events.1

         The CI, wired with a video camera, met the female suspect at the Decaturville City Park.
Jones followed the CI from a distance. He observed a silver Monte Carlo pull into the park but
did not see the person driving it or obtain the vehicle’s license tag number. During the controlled
buy, the suspect did not identify herself or provide any other information about herself. Jones
knew, however, that Ramey drove a silver Monte Carlo and that Sanders drove a Ford Explorer.
Jones also knew that Ramey and Sanders lived together, although he was not aware that they
were sisters.

         After the controlled buy, the CI gave Jones a description of the female suspect as short
and petite with long black hair and tattoos. Jones asked around the Decatur County Sheriff’s

         1
             At oral argument, Plaintiff’s counsel made clear that the two are not biological sisters. See Recording at
20:14.
No. 15-6384                              Sanders v. Jones                          Page 4


Department if anyone knew a person matching that description. Deputy Ricky Inman (“Inman”)
told Jones that the description resembled Amy Sanders, with whom Inman was familiar. Jones
retrieved Sanders’s driver’s license photograph and showed the CI the photo a couple of days
after the controlled buy. The CI then identified Sanders as the person from whom he purchased
marijuana. The CI reiterated his identification to Jones a few days before Jones appeared before
the grand jury in September.

       Having obtained the CI’s identification and viewing the video of the controlled buy,
Jones drew up a police report of the controlled buy and forwarded it to the district attorney’s
office. The narrative portion of the report related the following information:

       On 5/22/2013 at approximately 1512 hrs. Ci made contact by cell phone, (713-
       602-2593) with a white female by the name of Amy Sanders Patterson in an
       attempt to purchase 1 Oz. of marijuana. Amy agreed to sell the 1 oz. of marijuana
       to the Ci and meet him at the Coty Park in Decaturville across from Decaturville
       Elementary. At approximately 1528 hrs Ci meet [sic] with Amy who was driving
       a silver Monte Carlo and purchased the marijuana for 130.00. I then meet with
       the Ci. And took the marijuana into evidence.

The police report did not describe how the CI came to identify the female suspect as Amy
Sanders. It also did not indicate that there was video—poor quality or otherwise—of the
transaction. The parties agree that this police report, in tandem with the CI’s identification,
formed the basis for Sanders’s indictment.

       Jones did not discuss the report on Sanders with anyone from the district attorney’s office
until the morning of the grand jury, when he met with Assistant District Attorney Jim Williams
(“Williams”). It is unclear whether Williams knew about or viewed the video of the controlled
buy prior to convening the grand jury. Although a transcript of the grand jury proceedings are
not in the record, Jones related the substance of his grand jury testimony during his deposition.
Jones testified that his grand jury testimony consisted largely of his reading verbatim from his
police report. Jones also testified that he described to the grand jury how the CI identified the
suspect from her driver’s license photo. Furthermore, he testified that Williams asked during the
grand jury whether there was audio and video of the controlled drug purchase, and that Jones
answered “yes.” Jones conceded that he did not tell the grand jury that the quality of the video
No. 15-6384                                      Sanders v. Jones                                    Page 5


recording was poor. According to Jones, the video quality was poor and “didn’t show the faces
clear enough” to make an identification.

         However, during Jones’s deposition, Jones viewed a screenshot2 taken from the video of
the controlled buy, and the following line of questioning took place:

         Q: As you sit here today, do you agree with me that, whether it be before or after
         this litigation began, the individual pictured in that video is not Amy Sanders?
         A: I agree with you.
         Q: And that video was within your control from the time it was made, from May
         22nd, all the way up through the date of her indictment and beyond?
         A: Yes.
         Q: Okay.
         A: I agree with the picture that you see. That’s what I agree with.
         Q: The screenshot?
         A: Yeah, the screenshot.
         Q: You agree that does not depict Amy Sanders?
         A: I agree that does not depict Amy Sanders.

A bit later on, Sanders’s counsel asked:

         Q: And it is your testimony today that if you had looked at the screenshot that you
         now know about and that you’ve seen, that you could have told that it was not
         Amy Sanders. There would not have been an identification of Amy Sanders.
         A: The screenshot does not show it to be Amy Sanders.

And again, a bit later:

         Q: So if you had looked at the video and looked at the screenshot prior to the
         indictment, you would not have indicted Amy Sanders?
         A: I did look at the video.
         Q: Okay.
         A: I do agree that it was not—it don’t look like Amy Sanders.



         2
          Sanders’s counsel did not introduce this screenshot as an exhibit. Thus, the screenshot itself is not in the
record. In addition, neither party filed the video of the controlled buy into the record.
No. 15-6384                              Sanders v. Jones                             Page 6


       The grand jury returned a true bill against Sanders on September 17, 2013. A bench
warrant was issued for Sanders’s arrest. When Sanders learned that the police were looking for
her, she turned herself into the Decaturville jail. She posted bond and was released. Later, the
State dismissed the charges against her due to misidentification.

       B. Procedural History

       Sanders filed suit against Jones under 42 U.S.C. § 1983 for false arrest, false
imprisonment, and malicious prosecution in violation of the Fourth and Fourteenth Amendments.
She also raised Tennessee-law claims of false arrest and malicious prosecution. Jones brought a
motion for summary judgment, arguing that he was entitled to absolute immunity and, in the
alternative, qualified immunity.      In response, Sanders abandoned her false arrest and
imprisonment claims (both federal and state) but maintained that trial was warranted on her
federal and state-law malicious prosecution claims.

       The district court first denied Jones’s absolute immunity defense in a footnote. While
acknowledging that grand jury witnesses enjoy absolute immunity for their testimony under
Rehberg, the district court reasoned that Jones’s grand jury testimony did not automatically
insulate him from Sanders’s malicious prosecution claim because her claim was premised not
only on Jones’s grand jury testimony but also on his investigative conduct leading up to the
grand jury.   The district court concluded that Jones was not absolutely immune for acts
committed in the course of his investigation.

       The district court also rejected Jones’s qualified immunity defense. Relying heavily on
Webb, the district court held that in “a case of mistaken identity, the jury must determine if it was
‘objectively reasonable’ for the officer to believe that the arrested individual was the person
sought.” (citing Webb, 789 F.3d at 663). The district court concluded that because Jones himself
acknowledged that the person depicted in the screenshot from the video footage did not resemble
Sanders, a jury could conclude that he knowingly or recklessly misrepresented the identity of the
person who sold the CI drugs. The district court further held that Jones could not rely solely on
the CI’s identification because “Jones had not provided substantial supporting evidence that the
CI was shown to be reliable.” Although the district court had concluded that Jones’s grand jury
No. 15-6384                                  Sanders v. Jones                                 Page 7


testimony was absolutely immune, it confusingly concluded that “a genuine issue of material fact
exists as to whether Defendant recklessly provided false testimony to the grand jury as to the
identity of the suspect.”3

                                   III. STANDARDS OF REVIEW

         The denial of a motion for summary judgment is reviewed de novo. Moldowan v. City of
Warren, 578 F.3d 351, 373 (6th Cir. 2009). The denial of absolute immunity and qualified
immunity are also legal questions reviewed de novo. Id. at 374.

                                             IV. ANALYSIS

         A. Jurisdiction

         This Court has jurisdiction over denials of absolute immunity before a final judgment in
the context of a malicious prosecution suit against a police officer. Moldowan, 578 F.3d at 371.

         Sanders contends that the panel lacks jurisdiction over Jones’s absolute immunity defense
because Jones did not specifically designate absolute immunity as an issue in his notice of
appeal, whereas he did specifically invoke the qualified immunity issue. Jones’s notice of appeal
reads:

         Notice is hereby given that Lamar Jones, hereby appeals to the United States
         Court of Appeals for the Sixth Circuit from the November 24, 2015 Order of the
         United States District Court for the Western District of Tennessee granting in part
         and denying in part defendant’s motion for summary judgment. [D.E. #33].
         Defendant appeals the court’s denial of qualified immunity. See Mitchell v.
         Forsyth, 472 U.S. 511, 530 (1985).

         Federal Rule of Appellate Procedure 3(c) imposes a jurisdictional requirement that the
notice of appeal “designate the judgment, order, or part thereof being appealed.” Fed. R. App.
3(c)(1)(B); see United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir. 1999).
“If an appellant . . . chooses to designate specific determinations in his notice of appeal—rather
than simply appealing from the entire judgment—only the specified issues may be raised on
appeal.” McLaurin v. Fischer, 768 F.2d 98, 102 (6th Cir. 1985). That being said, technical

         3
          The district court declined to exercise supplemental jurisdiction over Sanders’s Tennessee malicious
prosecution claim.
No. 15-6384                              Sanders v. Jones                            Page 8


errors in the notice of appeal that do not implicate Rule 3(c)’s jurisdictional requirements should
be treated as harmless absent a showing of prejudice by the appellee. See id.; see also Universal
Mgmt. Servs., 191 F.3d at 756 (describing Rule 3(c) as a jurisdictional rule that may not be
waived by the court).

       The district court’s November 24, 2015 order denied both Jones’s defense of absolute
immunity and his defense of qualified immunity. Therefore, Jones’s notice of appeal could be
read as either appealing from the entire November 24 order or only from the portion of the order
addressing his qualified immunity defense. We have held that a similarly ambiguous notice of
appeal was not limited to a singled-out aspect of the designated order. United States v. Pickett,
941 F.2d 411, 415 n.3 (6th Cir. 1991) (finding jurisdiction over the entire appeal where the
notice of appeal stated that the defendant appealed “from the final judgment” but also stated that
the appeal “is based on the trial court’s application of the Federal Sentencing Guidelines”). We
reach the same conclusion here. First, Jones’s notice of appeal satisfies Rule 3(c)’s jurisdictional
mandate by stating that it appeals from the November 24, 2015 order, which undeniably
addressed and decided Jones’s absolute immunity defense. Second, Sanders responded to the
merits of Jones’s absolute immunity argument in full in her response brief, and she has not
indicated she was prejudiced by Jones’s allegedly deficient notice of appeal. See Taylor v.
United States, 848 F.2d 715, 717-18 (6th Cir. 1988) (exercising jurisdiction over the entire
appeal where notice stated that it appealed only from a “portion of the order” because appellee
responded to appellant’s brief in full and made no showing of prejudice). We therefore have
jurisdiction to review the district court’s denial of absolute immunity.

       B. § 1983 Malicious Prosecution Cause of Action in the Sixth Circuit

       The tension between Rehberg’s provision of absolute immunity for grand jury testimony
and Sanders’s § 1983 malicious prosecution claim arises largely as a result of the Sixth Circuit’s
requirements for malicious prosecution claims involving a grand jury indictment. Therefore, we
review the development of this circuit’s § 1983 malicious prosecution claim in some detail.

       The Sixth Circuit’s current version of § 1983 malicious prosecution began with the
Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266, 274-75 (1994), where the Court
No. 15-6384                                     Sanders v. Jones                                   Page 9


held that a claimed constitutional right to be free from prosecution except upon probable cause
must be brought under the Fourth Amendment rather than under substantive due process. The
Court, however, expressed no opinion as to whether such a claim would succeed under the
Fourth Amendment. Id. at 275. In the wake of Albright, the Sixth Circuit recognized “malicious
prosecution” as a cognizable Fourth Amendment violation under § 1983. See Spurlock v.
Satterfield, 167 F.3d 995, 1005-06 (6th Cir. 1999) (citing Smith v. Williams, No. 94-6306, 1996
WL 99329, at *5 (6th Cir. 1996) (unpublished table decision)). It took over a decade, however,
for the Sixth Circuit to articulate the elements of a § 1983 malicious prosecution claim. In Sykes
v. Anderson, 625 F.3d 294 (6th Cir. 2010), the Sixth Circuit outlined four elements that a
plaintiff must prove to succeed on a § 1983 malicious prosecution claim: (1) a criminal
prosecution was initiated against the plaintiff, and the defendant made influenced, or participated
in the decision to prosecute; (2) there was a lack of probable cause for the criminal prosecution;
(3) the plaintiff suffered a deprivation of liberty, as understood under Fourth Amendment
jurisprudence, apart from the initial seizure; and (4) the criminal proceeding was resolved in the
plaintiff’s favor. Id.4

        Embedded within the lack-of-probable-cause element are additional rules regarding the
effect of a grand jury indictment against the plaintiff. Because Sykes did not involve a grand jury
indictment, it did not discuss these rules, but they are well-established by cases both preceding
and following Sykes. As a general rule, “the finding of an indictment, fair upon its face, by a
properly constituted grand jury, conclusively determines the existence of probable cause” for a
prosecution. Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002). This rule originates from
Ex parte United States, 287 U.S. 241, 249-51 (1932), where the Supreme Court held that a
district judge could not refuse to issue a bench warrant once a grand jury had returned an


        4
          This § 1983 version of malicious prosecution differs significantly from the common law version of
malicious prosecution. See Sykes, 625 F.3d at 309. The common law malicious prosecution tort requires a showing
of malice or an improper motive on the part of the defendant. See id.; Restatement (Second) of Torts § 653
Elements of Malicious Prosecution. Although several circuits require a showing of malice to state a § 1983
malicious-prosecution claim, see id. (citing cases), the Sixth Circuit specifically rejected “malice” as a necessary
element of § 1983 malicious prosecution, which the court acknowledged makes the “malicious prosecution” label
misleading, id. at 309-10. As a result, several Sixth Circuit cases instead refer to this Fourth Amendment claim as
“unreasonable prosecutorial seizure,” id. at 310; see also Newman v. Twp. of Hamburg, 773 F.3d 769, 772 (6th Cir.
2014), or “continued detention without probable cause,” Gregory v. City of Louisville, 444 F.3d 725, 749-50 (6th
Cir. 2006).
No. 15-6384                              Sanders v. Jones                           Page 10


indictment against the accused. The Court reasoned that “[i]t reasonably cannot be doubted that
. . . the finding of an indictment, fair upon its face, by a properly constituted grand jury,
conclusively determines the existence of probable cause for the purpose of holding the accused
to answer.” Id. at 250. The Sixth Circuit, along with other courts of appeals, proceeded to apply
this rule in § 1983 malicious prosecution actions. See Higgason, 288 F.3d at 877; see also Webb,
789 F.3d at 660; Cook v. McPherson, 273 F. App’x 421, 423 (6th Cir. 2008); Barnes v. Wright,
449 F.3d 709, 716 (6th Cir. 2006). Although not initially developed in a malicious prosecution
context, using this rule to preclude a malicious prosecution action where an indictment has
issued makes sense in light of the grand jury’s role as “a primary security to the innocent against
hasty, malicious and oppressive persecution,” Wood v. Georgia, 370 U.S. 375, 390 (1962), and
“an investigative body acting independently of either prosecuting attorney or judge,” United
States v. Williams, 504 U.S. 36, 49 (1992) (internal quotation marks, emphases, and citations
omitted).

       This court has developed an exception the Higgason rule, however, when a defendant
“knowingly or recklessly present[s] false testimony to the grand jury to obtain the indictment.”
Webb, 789 F.3d at 660. This exception for false grand jury testimony is where the primary
tension with Rehberg arises.

       The roots of the exception arose from a case dealing with the determination of probable
cause by a judge in a prior criminal hearing—not the determination of probable cause by a grand
jury. We held in Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001), that a plaintiff
bringing a § 1983 malicious prosecution claim was not barred by collateral estoppel from re-
litigating the issue of probable cause, even though a state court had already considered and found
probable cause to prosecute in a prior criminal action. The Darrah court reasoned that the
parties in the malicious prosecution action were not simply re-litigating the existence of probable
cause but, rather, whether the defendant-officer “made materially false statements to the state
judge that formed the basis of that court’s probable cause determination.” Id. at 311; see also
Hinchman v. Moore, 312 F.3d 198, 202-03 (6th Cir. 2002) (analyzing and following Darrah).
The Darrah court concluded that a judicial determination of probable cause in a preliminary
hearing does not bar re-litigation of the issue in a malicious prosecution action where the
No. 15-6384                                    Sanders v. Jones                                   Page 11


plaintiff alleges that the defendant-officers knowingly provided false information to the
magistrate in order to establish probable cause. Darrah, 255 F.3d at 311.

         Although Darrah dealt with the determination of probable cause by a judge in a
preliminary hearing, we extended the exception introduced in Darrah to the establishment of
probable cause by a grand jury indictment. This extension first occurred in Cook, 273 F. App’x
at 424 (citing Hinchman, 312 F.3d at 202-03), where we recognized the indictment’s
presumptive establishment of probable cause but noted an exception “where the indictment was
obtained wrongfully by defendant police officers who knowingly present false testimony to the
grand jury.” See also Webb, 789 F.3d at 660; Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir.
2014).

         The exception also expanded from knowingly false statements to include statements
made ‘recklessly” or with “reckless disregard for the truth.” See Webb, 789 F.3d at 660;
Robertson, 753 F.3d at 616. This expansion occurred largely under the influence of the § 1983
cause of action for false arrest. Under the false arrest standard, a police officer may be liable for
false arrest, even if the officer had a judicially-secured warrant, where the plaintiff establishes:
“(1) a substantial showing that the defendant stated a deliberate falsehood or showed reckless
disregard for the truth and (2) that the allegedly false or omitted information was material to the
finding of probable cause.” Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (applying this
standard to Fourth Amendment claims of unlawful arrest and malicious prosecution). This two-
pronged test has also become the standard for demonstrating a lack of probable cause in
malicious prosecution cases where either a grand jury issued an indictment, see Webb, 789 F.3d
at 660; Robertson 753 F.3d at 616; or a judge made a finding of probable cause in a preliminary
hearing, see Peet v. City of Detroit, 502 F.3d 557, 566 (6th Cir. 2007); Gregory, 444 F.3d at 758;
Vakilian, 335 F.3d at 517.5




         5
           A couple of cases instead locate this two-pronged inquiry (into whether the defendant made (1) false
statements (2) material to the finding of provable cause) under the first element—influence or participation in the
decision to prosecute—rather than under the second element—a lack of probable cause. See Johnson v. Moseley,
790 F.3d 649, 654-55 (6th Cir. 2015); Sykes, 625 F.3d at 312. This approach, however, ignores the principle that a
judicial finding of probable cause by a grand jury or a judge creates a presumption of probable cause.
No. 15-6384                              Sanders v. Jones                           Page 12


     C. Tension Between the Sixth Circuit’s Version of §1983 Malicious Prosecution and
        Rehberg’s Absolute Immunity for Grand Jury Testimony

       Jones claims absolute immunity under Rehberg, in which the Supreme Court
unanimously held that “grand jury witnesses should enjoy the same immunity as witnesses at
trial. This means that a grand jury witness has absolute immunity from any § 1983 claim based
on the witness’ testimony.” Rehberg, 132 S. Ct. at 1506. This, of course, includes perjured
testimony. See Briscoe v. LaHue, 460 U.S. 325, 326-27, 341-45 (1983). The Court warned that
“this rule may not be circumvented by claiming that a grand jury witness conspired to present
false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim
concerning the initiation or maintenance of a prosecution.” Rehberg, 132 S. Ct. at 1506. The
Rehberg Court also found no reason to distinguish police-officer witnesses from lay witnesses.
Id. at 1505.

       In determining whether Jones is entitled to absolute immunity, we assume that Sanders’s
allegations about Jones’s conduct are true. See Buckley v. Fitzsimmons, 509 U.S. 259, 261
(1993). According to Jones, Sanders cannot prove her cause of action without his grand jury
testimony and therefore Rehberg entitles him to absolute immunity. Sanders, however, argues
that the basis of her malicious prosecution claim is not Jones’s grand jury testimony but rather
his allegedly false police report, which was provided to the prosecutor’s office for preparation of
the indictment. Therefore, she maintains that Jones is not entitled to absolute immunity because
she can prove her § 1983 claim without Jones’s grand jury testimony.

       The question thus becomes whether Sanders can satisfy the elements of a § 1983
malicious prosecution claim relying only on Jones’s police report. Stated another way, the
question is whether false grand jury testimony is a prerequisite for any element of Sanders’s
claim. On the surface, absolute immunity for Jones’s grand jury testimony poses problems for
two elements of Sanders’s § 1983 malicious prosecution action: (1) influence over or
participation in the decision to prosecute, and (2) lack of probable cause. Rehberg makes clear
that Sanders cannot use Jones’s grand jury testimony to prove either of these elements. Rehberg,
132 S. Ct. at 1506. That is, how can Sanders, or any other malicious-prosecution plaintiff, prove
a defendant influenced or participated in a grand jury’s decision to prosecute without relying on
No. 15-6384                              Sanders v. Jones                            Page 13


the defendant’s sole interaction with the grand jury—that is, the grand jury testimony?
Similarly, how can a plaintiff show a lack of probable cause—without flouting Rehberg—when
the only apparent exception to the indictment’s presumptive proof of probable cause is false
grand jury testimony?

       The district court opinion exhibits this tension between Rehberg and the elements of a
malicious prosecution claim. While the district court held that Sanders’s claim was premised on
Jones’s investigation and not his grand jury testimony, the district court apparently relied on
Jones’s grand jury testimony in denying him qualified immunity, stating that “a jury could
reasonably conclude that [Jones]’s grand-jury testimony contained knowing or reckless
falsehoods as to the identity of the person who sold [the CI] drugs,” and “a genuine issue of
material fact exists as to whether Defendant recklessly provided false testimony to the grand jury
as to the identity of the suspect.” To the extent the district court premised it denial of qualified
immunity on Jones’s grand jury testimony, its decision contravenes Rehberg. But because we
may affirm the district court’s judgment on any basis supported by the record, Angel v. Kentucky,
314 F.3d 262, 264 (6th Cir. 2002), we consider whether Sanders can make out the elements of
her cause of action using something other than Jones’s grand jury testimony, such as his police
report. We therefore examine the tensions between Rehberg and our malicious prosecution
cause of action to determine whether malicious prosecution remains a viable claim where a
plaintiff was indicted by a grand jury given that Rehberg lends absolute immunity to grand jury
testimony.

               1. Influence over or Participation in Decision to Prosecute

       The apparent conflict between Rehberg immunity and the first element—influence over
the decision to prosecute—is easily overcome. “To be liable for ‘participating’ in the decision to
prosecute, the officer must participate in a way that aids in the decision, as opposed to passively
or neutrally participating.” Webb, 789 F.3d at 660 (quoting Sykes, 625 F.3d at 308 n.5). There
must be “some element of blameworthiness or culpability in the participation,” as “truthful
participation in the prosecution decision is not actionable.” Johnson, 790 F.3d at 655. In Webb,
we relied on false grand jury testimony as evidence of participation in the decision to prosecute.
789 F.3d at 663. Clearly, that approach is not supportable under Rehberg when the defendant
No. 15-6384                              Sanders v. Jones                           Page 14


raises the defense of absolute immunity. See Rehberg, 132 S. Ct. at 1506 (“[T]his rule [of
absolute immunity] may not be circumvented . . . by using evidence of the witness’ testimony to
support any other § 1983 claim concerning the initiation or maintenance of prosecution.”). But
absolute immunity was not raised in Webb. Because absolute immunity is an affirmative defense
that may be waived, Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986), the Webb
court was not required to address the effect of Rehberg if the defendants did not invoke absolute
immunity. Therefore, we are not bound by Webb because in this case the defense of absolute
immunity was clearly raised by Jones’s motion for summary judgment.

       Our precedent, however, confirms that false grand jury testimony is not the only way to
prove participation in the decision to prosecute. A defendant can also influence or participate in
the decision to prosecute by prompting or urging a prosecutor’s decision to bring charges before
a grand jury in the first place. Indeed, we held in Webb that false statements to the prosecutor
constituted participation in the decision to prosecute, especially where the prosecutor indicated
that he relied on those falsehoods in pursuing the indictment. Webb, 789 F.3d at 663-64, 666
(holding that various defendants participated in the decision to prosecute because the prosecutor
relied on their false statements in deciding to pursue an indictment). We have reached the same
conclusion in cases involving a preliminary hearing where the defendant-officer made false
statements to the prosecutor but either did not testify at the preliminary hearing, Sykes, 625 F.3d
at 317 (holding that the defendant who did not testify at preliminary hearing “influenced or
participated in the ultimate decision to prosecute the Plaintiffs by way of his knowing
misstatements to the prosecutor”), or had absolute immunity for his testimony at the preliminary
hearing, see Hinchman, 312 F.3d at 205 (denying qualified immunity to officers who made false
statements to prosecutors and other officers, even though they had absolute immunity for their
testimony at the preliminary hearing).     In other words, false testimony before the judicial
decision-maker—grand jury or judge—is not necessary to show influence or participation over
the decision to prosecute.    False statements to the prosecutor can suffice. Cf. Skousen v.
Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002) (holding that the defendant officer did not
make the decision to prosecute the plaintiff where he simply forwarded his police report and
medical report to the prosecutor’s office where there was no proof that he was consulted
No. 15-6384                              Sanders v. Jones                             Page 15


regarding the decision to prosecute and there was no proof that the information in the reports was
untruthful).

       As a result, Sanders could demonstrate the first element of her claim via the allegedly
false statements in Jones’s police report. The district attorney’s office indisputably received and
used the report in deciding to submit the case to the grand jury. The parties agree that this report,
in tandem with the CI’s identification, “formed the basis for [Sanders’s] indictment.” In fact,
there is no evidence that the prosecutor received any information other than Jones’s police report
in deciding to pursue the indictment. Therefore, assuming Sanders can demonstrate that Jones’s
police report contains knowing or reckless falsehoods, she need not resort to Jones’s grand jury
testimony to prove that he influenced or participated in the decision to prosecute.

               2. Rebutting the Indictment’s Probable-Cause Presumption

       The tension between Rehberg immunity and the lack-of-probable-cause element is not so
easily resolved. As explained, it is well-established in this circuit that an indictment by a grand
jury conclusively determines the existence of probable cause unless the defendant-officer
“knowingly or recklessly present[ed] false testimony to the grand jury to obtain the indictment.”
Webb, 789 F.3d at 660; see also Robertson, 753 F.3d at 616; Cook, 273 F. App’x at 424. But
under Rehberg, a plaintiff cannot use evidence of a grand jury witness’s testimony “to support
any . . . §1983 claim concerning the initiation or maintenance of a prosecution.” Rehberg, 132 S.
Ct. at 1506. That includes using a defendant’s grand jury testimony to rebut the indictment’s
establishment of probable cause. Thus, Rehberg in essence deletes the exception to the general
rule that a grand jury indictment conclusively establishes probable cause. See Barnes, 449 F.3d
at 716 (“[B]ecause [the plaintiff] was indicted pursuant to a determination by the grand jury, he
has no basis for his constitutional claim.” (quoting Higgason, 288 F.3d at 877)).

       Restated, Sixth Circuit precedent indicates that a plaintiff who was indicted by a grand
jury can overcome the presumption of probable cause only by evidence that the defendant made
false statements to the grand jury. False statements made in a police report or to a prosecutor do
not satisfy this test. This is because false statements in a police report or made to a prosecutor
cannot, on their own, be material to the grand jury’s finding of probable cause. False statements
No. 15-6384                              Sanders v. Jones                           Page 16


could affect the grand jury’s determination of probable cause only if introduced through grand
jury testimony, and if that testimony is by the defendant, he is absolutely immune under
Rehberg. Therefore, while Rehberg does not provide Jones absolute immunity for his police
report, the police report standing alone cannot rebut the grand jury’s finding of probable cause.
In other words, Rehberg effectively defeats Sanders’s malicious prosecution claim based on the
allegedly false police report because she cannot overcome the presumption of probable cause
without using Jones’s absolutely immune grand jury testimony.

       Rehberg itself lends support to this outcome. Rehberg specifically forbids attempts to
circumvent absolute immunity “by claiming that a grand jury witness conspired to present false
testimony or by using evidence of the witness’ testimony to support any other § 1983 claim
concerning the initiation or maintenance of a prosecution.” Rehberg, 132 S. Ct. at 1506. The
Court explained that it wanted to prevent civil plaintiffs from “simply refram[ing] a claim to
attack the preparation instead of the absolutely immune actions themselves.” Id. (citing Buckley,
509 U.S. at 283 (Kennedy, J, concurring in part and dissenting in part)). It then noted that in
most cases, “the witness and the prosecutor conducting the investigation engage in preparatory
activity, such as a preliminary discussion in which the witness relates the substance of his
intended testimony,” and a § 1983 claim could not survive by challenging these preliminary
discussions rather than the grand jury testimony itself. Id. at 1507.

       The Court’s observations appear to invalidate Sanders’s strategy here: using Jones’s
police report, which he recited almost verbatim in his grand jury testimony, to support a claim of
malicious prosecution. Moreover, the Court observed that “[i]t would thus be anomalous to
permit a police officer who testifies before a grand jury to be sued for maliciously procuring an
unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is
actually responsible for the decision to prosecute.” Id. at 1508. This statement implies that an
officer should not be susceptible to suit for malicious prosecution because the decision to
prosecute lies wholly within the discretion of the prosecutor. See id. at 1507-08; see also id. at
1508 n.3 (citing Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976) for the proposition that both
grand jurors and prosecutors are “quasi-judicial” officers). This statement also accords with the
sentiments of the concurring Justices in Albright who criticized malicious prosecution as a theory
No. 15-6384                              Sanders v. Jones                           Page 17


of recovery under § 1983. See Albright, 510 U.S. at 279 n.5 (Ginsburg, J., concurring); id. at
281, 284-86 (Kennedy, J., concurring in the judgment); id. at 289-90 (Souter, J., concurring in
the judgment).

       We note that several post-Rehberg, malicious prosecution cases involving a grand jury
indictment have not reached this conclusion; rather, they have continued to examine the
defendant’s grand jury testimony to determine whether it contained any knowing or reckless
falsehoods. See, e.g, Bickerstaff v. Lucarelli, 830 F.3d 388, 398 (6th Cir. 2016) (holding that the
plaintiff did not point to any grand jury proceedings or testimony and “did not take any steps to
obtain a transcript of the grand-jury proceedings, which would have revealed the precise nature
and content of [the defendant officer’s] testimony” to show that the indictment’s establishment
of probable cause was falsely obtained); Snow v. Nelson, 634 F. App’x 151, 157 (6th Cir. 2015)
(concluding that the plaintiff could not overcome the indictment’s establishment of probable
cause because he did not introduce evidence of the grand jury proceedings); Webb, 789 F.3d at
660-63 (relying on the defendant’s false grand jury testimony as evidence of a lack of probable
cause); Young v. Owens, 577 F. App’x 410, 416-17 (6th Cir. 2014) (holding that the plaintiffs
could not overcome the indictment’s determination of probable cause because they did not
introduce evidence of false grand jury testimony); Robertson, 753 F.3d at 616-17 (analyzing
whether the defendant knowingly or recklessly provided false grand jury testimony about the
plaintiffs). None of these cases, however, cited Rehberg or even mentioned the issue of absolute
immunity—presumably because the defendants in those cases did not raise the defense of
absolute immunity. Because absolute immunity is an affirmative defense that may be waived,
these post-Rehberg cases were not called upon to address the effect of Rehberg if the defendant
never raised absolute immunity as a defense. See Kennedy, 797 F.2d at 300. We are thus not
bound by these prior circuit decisions because, unlike in those cases, the defense of absolute
immunity is squarely before us.

       We recognize that Rehberg left the door open for at least some § 1983 claims against
grand jury witnesses. The Rehberg Court clarified in a footnote that “we do not suggest that
absolute immunity extends to all activity that a witness conducts outside the grand jury room.”
Rehberg, 132 S. Ct. at 1507 n.1. The Court specifically mentioned that falsifying affidavits and
No. 15-6384                                     Sanders v. Jones                                   Page 18


fabricating evidence would constitute unprotected acts. Id. Based on this footnote, the Second
Circuit has interpreted the scope of absolute immunity under Rehberg this way:

               When a police officer claims absolute immunity for his grand jury
        testimony under Rehberg, the court should determine whether the plaintiff can
        make out the elements of his § 1983 claim without resorting to the grand jury
        testimony. If the claim exists independently of the grand jury testimony, it is not
        “based on” that testimony, as that term is used in Rehberg. Conversely, if the
        claim requires the grand jury testimony, the defendant enjoys absolute immunity
        under Rehberg.

Coggins v. Buonora, 776 F.3d 108, 113 (2d Cir. 2015) (internal citation omitted), cert. denied,
135 S. Ct. 2335 (2015). But Sanders does not allege that Jones falsified or fabricated evidence;
instead the essence of her malicious prosecution claim is that Jones misled the prosecutor and the
grand jury through negligent and reckless investigation and critical omissions of material
evidence.6 Thus, we decline to create another exception to circumvent the well-settled principle
in this circuit that a grand jury indictment is preclusive evidence of probable cause when the
scenarios mentioned by the Supreme Court are not before us.

        While this application of Rehberg may seem harsh in largely foreclosing malicious
prosecution claims where the plaintiff was indicted, it is consistent with our original approach to
malicious prosecution claims.           And that approach protects another important interest: the
integrity of the judicial system. As a unanimous Court explained in Rehberg, “the proper
functioning of our grand jury system depends upon the secrecy of grand jury proceedings.”
Rehberg, 132 S. Ct. at 1509 (internal quotation marks and citations omitted). “Allowing § 1983
actions against grand jury witnesses would compromise this vital secrecy,” id., because “many
prospective witnesses would be hesitant to come forward voluntarily, knowing that those against
whom they testify would be aware of that testimony. Moreover, witnesses who appeared before
the grand jury would be less likely to testify fully and frankly, as they would be open to
retribution.” Id. (internal quotations marks and citation omitted); see also id. at 1505 (noting

        6
          The complaint states that Jones “maliciously prosecuted the Plaintiff in violation of her rights under the
Fourth and Fourteenth Amendments when he swore out a warrant that lacked probable cause.” It alleges that Jones
“had ample time and the exclusive control of evidence that was apparently never reviewed before the indictment was
initiated by [Jones];” and that “[a]s a result of the indictment, which contained untrue and uncorroborated
statements, as well as material omissions, the grand jury was induced to return a true bill in reliance upon said
statements.” Id.
No. 15-6384                                      Sanders v. Jones                                     Page 19


that absolute immunity is essential for both trial witnesses and grand jury witnesses because “[i]n
both contexts, a witness’ fear of retaliatory litigation may deprive the tribunal of critical
evidence”). Lastly, as Rehberg observed, as with perjurious trial testimony, the possibility of
prosecution for perjury provides a sufficient deterrent. Id. at 1505.7

                                              V. CONCLUSION

         For the foregoing reasons, the judgment of the district court is REVERSED and the
matter is REMANDED for entry of judgement in favor of Jones.




         7
           To the extent Sander’s claim is premised on an allegedly false police report, it fails. The preparation of a
police report is nontestimonial, investigative activity, for which Jones would be entitled at most to qualified
immunity. See Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (an officer who submits an affidavit for a warrant
leading to an arrest without probable cause is not entitled to absolute immunity, but only qualified immunity). Jones
is entitled to qualified immunity because Sanders cannot establish the violation of a constitutional right. See
Higgason, 288 F.3d at 877 (holding that the plaintiff had no basis for a constitutional claim because he “was indicted
pursuant to a determination made by the grand jury”); Barnes, 449 F.3d at 716-17 (same, relying on Higgason;
resolving question on qualified immunity grounds); see generally Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)
(holding that a defendant is entitled to qualified immunity unless the plaintiff establishes the violation of a clearly
established constitutional right).
