                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0295n.06

                                           No. 10-1031

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
CHRISTOPHER RYAN                       )                                        May 05, 2011
RICHARDSON,                            )                                  LEONARD GREEN, Clerk
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
MOHAMMED NASSER,                       )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF MICHIGAN
      Defendant-Appellant,             )
                                       )
and                                    )                         OPINION
                                       )
MICHAEL ANTHONY,                       )
                                       )
      Defendant.                       )
_______________________________________)


Before: MOORE and WHITE, Circuit Judges, and VARLAN, District Judge.*

       KAREN NELSON MOORE, Circuit Judge. Christopher Ryan Richardson (“Richardson”)

brought suit under 42 U.S.C. § 1983 and the common law of the State of Michigan, asserting, inter

alia, claims of false arrest. Richardson alleges that Mohammed Nasser (“Nasser”), a city detective,

lacked probable cause to arrest Richardson for the death of his nine-day-old daughter, Nevaeh, on

charges of felony murder, first-degree child abuse, and first-degree criminal sexual abuse. The

United States District Court for the Eastern District of Michigan granted in part and denied in part



       *
       The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 10-1031
Richardson v. Nasser et al.


Nasser’s motion for summary judgment. Nasser appeals the denial of summary judgment with

respect to: (1) the federal claim of false arrest, on the grounds that he is entitled to qualified

immunity, and (2) the state claim of false arrest, on the grounds that he is entitled to governmental

immunity.

       Proof of the facts and inferences as alleged by Richardson would establish the violation of

a clearly established right to be free from arrest without probable cause. Therefore, we AFFIRM

the district court’s denial of summary judgment on the federal claim of false arrest on the grounds

of qualified immunity. Under Michigan law, good faith is a necessary element of the governmental-

immunity defense. An issue of material fact remains as to whether Nasser intentionally made

misrepresentations to the state judge, which would defeat good faith. Accordingly, we AFFIRM

the district court’s denial of summary judgment on the state-law claim on the grounds of

governmental immunity.

                                       I. BACKGROUND

       Richardson’s claims of false arrest arise out of the death of his nine-day-old daughter,

Nevaeh, and the ensuing investigation by police for the City of Lincoln Park, Michigan. Nevaeh was

born on November 15, 2007 and resided in Lincoln Park with her parents, Richardson and Cynthia

Goscicki (“Goscicki”), Richardson’s mother, Adie Green, his brother, Jacob, and Adie Green’s

husband, Gerald Green. On the night of November 22, 2007—Thanksgiving Day—Nevaeh was

taken to Wyandotte Henry Ford Hospital after Richardson and Goscicki observed her bleeding from

the nose and mouth.


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       Upon admission, medical personnel observed an injury to Nevaeh’s rectum, and contacted

the Lincoln Park Police Department to report a suspicion of criminal sexual conduct involving

Nevaeh. Nevaeh was then transferred to Children’s Hospital in Detroit for specialized care, where

she died on November 24, 2007. An autopsy conducted on November 26, 2007 revealed that

Nevaeh’s death was a homicide caused by an “extensive penetrating trauma to the anus that caused

bleeding and tearing of the anal skin” leading to severe infection (sepsis) and fatal blood loss. R.

18-15 at 2 (Post Mortem Report at 1). The medical examiner also documented injuries to her head,

wrists, and ankles.

       On November 23, in response to the report of suspected abuse, Nasser and Steward Howell

(“Howell”) were dispatched to Children’s Hospital. When they arrived, they were advised by a

doctor that the infant was in critical condition and that there was evidence of sexual assault. While

at the hospital, Nasser and Howell conducted initial interviews with Richardson and Goscicki.1 Later

that night, at the police department, Nasser and Howell also interviewed the Greens. On November

23, following the initial interviews, Richardson was arrested for domestic assault arising out of

Richardson’s attack on Goscicki while they were taking Nevaeh to the hospital. He pleaded guilty

on January 25, 2008 and does not assert any claims arising solely from his arrest on that charge.




       1
        The following interviews were recorded, and CDs of the recordings were submitted to the
court: November 23, 2007 interviews of Adie Green and Gerald Green; November 24, 2007
interview of Goscicki; November 24, 2007 interview of Richardson; and November 26, 2007
polygraph of Richardson.

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Richardson v. Nasser et al.


       On November 24, after Nevaeh’s death, Howell and Nasser conducted additional interviews

of Goscicki and Richardson and interviewed family members of Goscicki who had been with her and

the infant on Thanksgiving Day. They learned that Richardson had a history of drug abuse and

domestic violence, and had made threats toward Goscicki and Nevaeh. Goscicki also informed

Howell that, on the evening of November 21, 2007, she and Richardson had an argument and

Richardson locked her out of the house for between twenty and thirty minutes. She stated that, while

she was locked out, Richardson was alone with the baby and she could hear Nevaeh crying. She

stated that, after the incident, Nevaeh was unusually fussy and cried whenever she was put down.

       Following his second interview with Richardson, Nasser arranged for Michael Anthony

(“Anthony”), who is licensed in Michigan as a polygraph examiner, to conduct a polygraph of

Richardson. Anthony reported that Richardson had not answered truthfully three questions about

causing injury to Nevaeh. Anthony explained to Richardson that he failed the exam, and continued

to discuss with Richardson what may have happened to Nevaeh. Throughout the interview,

Richardson denied ever intentionally harming Nevaeh. Richardson eventually admitted, in response

to questioning, that, because of his long nails, it was possible he had accidentally caused injury to

Nevaeh’s anus while changing her diaper and applying diaper-rash cream. He later recanted,

however, stating that Goscicki was the only person to have applied diaper-rash cream or to have

taken Nevaeh’s temperature with the rectal thermometer.

       Nasser interviewed Richardson for twenty to thirty minutes after Anthony. Richardson

admitted that his finger may have been inserted into Nevaeh’s anus and his nail may have cut her


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Richardson v. Nasser et al.


while wiping her, but questioned how such an accidental scratch could have resulted in Nevaeh’s

extensive injuries. He also pointed out that Goscicki had long nails, too, and could have caused

Nevaeh’s injury in the same way. Nasser then traced Richardson’s hand and Richardson indicated

how far he may have inserted his finger into Navaeh’s anus; Richardson claims he indicated only that

his fingernail could have been inserted.

       After the polygraph examination, Nasser provided an investigative report to the prosecutor’s

office, along with Anthony’s polygraph report, videorecordings of the polygraph and other

interviews, and signed witness statements. A prosecutor independently reviewed the evidence and

prepared a criminal complaint and felony warrant charging Richardson with felony murder, under

Mich. Comp. Laws § 750.316(1)(b); first-degree child abuse under Mich. Comp. Laws

§ 750.136b(2); and first-degree criminal sexual conduct under Mich. Comp. Laws § 750.520b(1)(a).

The complaint and warrant did not contain specific factual allegations against Richardson.

       On December 3, 2007 Nasser appeared before a state-court judge with the complaint and

warrant prepared by the prosecutor. The judge conducted a probable-cause hearing and heard

testimony from only Nasser. Nasser testified that:

       upon interviewing the Defendant, um, he made admissions that he did in fact stick
       his finger in [Navaeh’s] rectum. Um, at that time, he—I traced his hand, and he
       pointed to, uh, his index fing—or pointer finger, and showed me how far he inserted
       the finger into the rectum. That, uh, statement was recorded via, uh, video.




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Richardson v. Nasser et al.


R. 30-5 at 6 (Dec. 3, 2007 Hr’g Tr. at 5). The state judge was not presented with copies of the

recordings and did not independently review the evidence at that time. But, based on Nasser’s

testimony, the judge concluded that probable cause existed, and signed the complaint and warrant.

       In January 2008, following Richardson’s arrest, the state judge conducted a preliminary

examination extending over two hearing dates. At these hearings, the judge took testimony from

various witnesses, including those interviewed by Nasser and Howell during the initial investigation,

to evaluate the prosecutor’s motion to bind Richardson over on the charged offenses. The judge also

reviewed, for the first time, the recorded interviews, including the polygraph examination of

Richardson.

       At the conclusion of the preliminary exam, the judge stated that he was satisfied that the

cause of Nevaeh’s death was penetrating trauma to the anus and that the manner of death was

homicide. He concluded, however, that probable cause did not exist to believe that Richardson had

committed the charged crimes. After summarizing the evidence, the judge stated:

       That is a completely different type of fact circumstance than what was presented to
       the Court, or as the Court understood it at the time that this case initially came before
       it . . . . If when the Court signed the Complaint and Warrant in this matter, if the
       Court was aware that this purported statement of Mr. Richardson was simply an
       acknowledgment of the possibility of some incidental scratching or slight penetration
       with the nail while wiping the baby’s butt with a diaper wipe, and that was the extent
       of his acknowledged statement, the Court would have never even signed the
       Complaint and Warrant charging him with this offense. Instead, the Court
       understood from the testimony of the officer that Mr. Richardson acknowledged
       digital penetration of the anal cavity of the deceased.

R. 30-4 at 81–82 (Jan. 25, 2008 Hr’g Tr. at 80–81). The charges related to Nevaeh’s death were then

dismissed.

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Richardson v. Nasser et al.


        On July 10, 2008, following dismissal of the charges, Richardson filed suit under 42 U.S.C.

§ 1983 and the common law of the State of Michigan against Nasser and Anthony in the United

States District Court for the Eastern District of Michigan. Richardson claimed that Nasser and

Anthony violated his constitutional rights during their investigation of the death of Nevaeh. After

discovery, Nasser and Anthony filed separate motions for summary judgment which sought, inter

alia, dismissal of the federal claims based on qualified immunity and dismissal of the state claims

based on governmental immunity. On December 9, 2009, the district court entered a Memorandum

and Order granting in part and denying in part Nasser’s motion for summary judgment, and granting

Anthony’s motion for summary judgment.

        The surviving claims against Nasser are the § 1983 and state-law claims for false arrest.

Nasser timely appealed denial of summary judgment with respect to these claims.

                                    II. SECTION 1983 CLAIM

A. Jurisdiction

        On appeal from the denial of summary judgment, Nasser challenges the district court’s

determination that he is not entitled to qualified immunity on the § 1983 claim of false arrest. “A

district court’s denial of qualified immunity is an appealable final decision under 28 U.S.C. § 1291,

but only ‘to the extent that it turns on an issue of law.’” Estate of Carter v. City of Detroit, 408 F.3d

305, 309 (6th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). We lack

jurisdiction to review “a district court’s summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515


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No. 10-1031
Richardson v. Nasser et al.


U.S. 304, 319-20 (1995). But, “regardless of the district court’s reasons for denying qualified

immunity, we may exercise jurisdiction over [Nasser’s] appeal to the extent it raises questions of

law.” Williams v. Mehra, 186 F.3d 685, 689–90 (6th Cir. 1999) (en banc) (internal quotation marks

and emphasis omitted).

       In order for appellate jurisdiction to exist, “if the defendant disputes the plaintiff’s version

of the story, the defendant must nonetheless be willing to concede the most favorable view of the

facts to the plaintiff for purposes of the appeal.” Moldowan v. City of Warren, 578 F.3d 351, 370

(6th. Cir. 2009) (internal quotation marks omitted). For purposes of the appeal, Nasser “limit[s] [his]

argument to questions of law premised on facts taken in the light most favorable” to Richardson.

Meals v. City of Memphis, 493 F.3d 720, 726–27 (6th Cir. 2007). Therefore, we have jurisdiction

to consider whether the facts alleged by Richardson “show[] a violation of clearly established law.”

Johnson, 515 U.S. at 311 (internal quotation marks omitted).

B. Standard of Review

       We review de novo the denial of summary judgment. Moldowan, 578 F.3d at 373. Summary

judgment is appropriate if “there is no genuine issue as to any material fact and . . . the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “Qualified immunity is a question

of law, but ‘where the legal question of qualified immunity turns upon which version of the facts one

accepts, the jury, not the judge, must determine liability.’” McKenna v. Edgell, 617 F.3d 432, 437

(6th Cir. 2010) (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004)),

cert. denied, --- S. Ct. ---, 2011 WL 247034 (U.S. Mar. 28, 2011). “‘Thus, to the extent that there


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Richardson v. Nasser et al.


is disagreement about the facts’ . . . ‘we must review the evidence in the light most favorable to

[Richardson], taking all inferences in [his] favor.’” Id.

        Richardson bears the burden of demonstrating that Nasser is not entitled to qualified

immunity. Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). “Qualified immunity shields

government officials acting within the scope of their official duties from civil liability insofar as their

conduct does not violate clearly established rights of which a reasonable person would have known.”

Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003) (citing Harlow v. Fitzgerald, 457 U.S. 800,

817–18 (1982)). Thus, on summary judgment, Nasser benefits from qualified immunity “unless the

facts alleged and the evidence produced, when viewed in the light most favorable to the plaintiff,

would permit a reasonable juror to find” the violation of a clearly established right. Aldini v.

Johnson, 609 F.3d 858, 863 (6th Cir. 2010) (internal quotation marks omitted).

C. Qualified Immunity

        We analyze claims of qualified immunity by asking three questions: “(1) whether a

constitutional right was violated; (2) whether that right was clearly established and one of which a

reasonable person would have known; and (3) whether the official’s action was objectively

unreasonable under the circumstances.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008).

“In many factual contexts, however, . . . the fact that a right is ‘clearly established’ sufficiently

implies that its violation is objectively unreasonable.” Estate of Carter, 408 F.3d at 311 n.2. For

Richardson to defeat qualified immunity, he must show that Nasser violated a right that is “‘clearly

established’ in a . . . particularized . . . sense: The contours of the right must be sufficiently clear that


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Richardson v. Nasser et al.


a reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

       Richardson has alleged a violation of “a known constitutional right” to be free from arrest

without probable cause. Gregory v. City of Louisville, 444 F.3d 725, 759 (6th Cir. 2006). “A false

arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked probable

cause to arrest the plaintiff.” Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005).

“An arrest pursuant to a facially valid warrant is normally a complete defense to a federal

constitutional claim for false arrest . . . made pursuant to § 1983.” Id. An officer cannot rely,

however, on a facially valid warrant as satisfactory evidence of probable cause “when evidence exists

that a defendant intentionally mislead or intentionally omitted information at a probable cause

hearing for an arrest . . . warrant provided that the misleading or omitted information is critical to

the finding of probable cause.” Id. at 677 n.4; see also Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir.

1999); Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).

       Therefore, to overcome qualified immunity in this context, Richardson must establish “(1)

a substantial showing that [Nasser] 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, 335 F.3d at 517. Put another way, Richardson “must show that the judge

would not have issued the warrant without” the misrepresentations. Id.

       Richardson has presented evidence that Nasser intentionally misrepresented Richardson’s

statements to the state judge, and that those misrepresentations were material. Because we accept


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the facts as asserted by Richardson when reviewing qualified immunity on summary judgment, we

assume “that [Richardson] has made the required showing that [Nasser] recklessly disregarded the

truth when he testified before the judge.” Id. at 518. According to Richardson, he admitted to—at

most—possible, accidental, and minimal scraping. The district judge also identified a dispute over

how far Richardson indicated during the post-polygraph-exam interview that he may have inserted

his finger. Thus, Nasser’s testimony is alleged to be misleading to the extent Nasser suggested that

Richardson admitted to abusing Nevaeh intentionally.

       We then assess whether Richardson could show that “the judge would not have issued the

warrant” if Nasser had accurately represented Richardson’s statements. Id. at 517. Richardson

contends that the state judge relied on Nasser’s misrepresentations to conclude that there was

probable cause to believe that Richardson was guilty of the charged offenses, and so the

misrepresentations were material. See Yancey v. Carroll Cnty., 876 F.2d 1238, 1244 (6th Cir. 1989)

(“Whether this is material or not depends on the extent to which [the judge] relied on these

statements in issuing the search warrant.”). Moreover, during the preliminary examination the next

month, and after he had viewed tapes of Richardson’s interviews, the state judge stated that he would

not have signed the complaint and warrant if he had been aware of the nature and context of

Richardson’s statements.

       In light of the facts and inferences favoring Richardson, “the judge would not have issued

the warrant” if Nasser had accurately represented Richardson’s statements. Indeed, the evidence

presented to the state judge at the initial probable-cause hearing consisted primarily of the testimony


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No. 10-1031
Richardson v. Nasser et al.


now at issue. Nasser was the only witness to testify at the hearing, and the complaint and warrant

consisted of only conclusory statements that Richardson caused the injury to Nevaeh’s rectum. Thus,

the allegedly misleading information was “material to the finding of probable cause.” Vakilian, 335

F.3d at 517; see Gregory, 444 F.3d at 759 (“[A] reasonable jury could conclude that without the

[omitted] testimony or with the additional exculpatory information . . . the preliminary hearing judge

would have failed to find probable cause.”); Yancey, 876 F.2d at 1244 (“[A] reasonable person could

believe that [the judge] would not have issued the warrant but for the disputed statement.”).

       Proof of the facts and inferences as alleged by Richardson—namely, that Nasser intentionally

misrepresented the evidence, and that the judge would not otherwise have issued the warrant—would

establish a violation of a clearly established right. Nasser “cannot, in good faith, rely on a judicial

determination of probable cause when that determination was premised on [his] own material

misrepresentations to the court. . . . Such reliance is unreasonable, and detention of [Richardson]

pursuant to such deceptive practices violates the Fourth Amendment.” Gregory, 444 F.3d at 758

(emphasis added) (internal citation omitted); see also Vakilian, 335 F.3d at 517. (“An investigator

may be held liable under § 1983 for making material false statements either knowingly or in reckless

disregard for the truth to establish probable cause for an arrest.”).2 Therefore, taking the facts and


       2
        Nasser also notes on appeal that he submitted the evidence to a prosecutor, along with his
investigative report, and the prosecutor determined what charges to bring against Richardson. Nasser
argues that, because the prosecutor independently reviewed the evidence and believed it sufficient
to amount to probable cause, then Nasser is immunized from the consequences of any subsequent
misrepresentations. Nasser does not cite any case law supporting this construction of immunity,
however. To be sure, “[t]his Court has held that a police officer cannot be liable for Fourth
Amendment malicious prosecution when he did not make the decision to bring charges, as long as

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Richardson v. Nasser et al.


inferences in Richardson’s favor, we affirm the denial of summary judgment on the federal claim

of false arrest.

                                    III. STATE-LAW CLAIM

        Nasser also appeals the district court’s determination that he is not entitled to governmental

immunity on the state claim of false arrest. With respect to Richardson’s pendent state-law claim,

we “look to state immunity law to determine whether a denial of immunity based on state law is

appealable.” Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007). Pursuant to

Michigan state law, “the denial of governmental immunity is . . . a ‘final order’ providing defendants

with an appeal of right to the Michigan Court of Appeals.” Id. at 408. Therefore, we also have

jurisdiction over the district court’s denial of state statutory governmental immunity.




the information he submitted to the prosecutor is truthful.” Kinkus v. Village of Yorkville, 289 F.
App’x 86, 91 (6th Cir. 2008) (unpublished opinion) (citing Skousen v. Brighton High Sch., 305 F.3d
520, 528-29 (6th Cir. 2002) (holding that a police officer who made a truthful report to the
prosecutor’s office was not liable for malicious prosecution because he did not make the decision
to initiate criminal proceedings)); see also Wysong v. City of Heath, 377 F. App’x 466, 470 (6th Cir.
2010) (unpublished opinion) (holding that officers were not liable for malicious prosecution because
“there is no evidence in the record that the officers misled [the prosecutor] in any way”) (citing
Kinkus and Skousen). In the instant case, however, the alleged misrepresentations were made to the
judge, not the prosecutor; the judge, not the prosecutor, determines whether there is probable cause
for arrest. Here, the judge decided to sign the warrant based on Nasser’s representations, not the
prosecutor’s evaluation of the evidence. Thus, even if Nasser was truthful in his report to the
prosecutor, he was not freed from making a full disclosure to the judge. Nasser provides no support
for his argument that the prosecutor’s review of the evidence immunizes an officer from the
consequences of his alleged intentional misrepresentations to the judge when seeking the judge’s
authorization of the warrant. See also Vakilian, 335 F.3d at 515–16 (rejecting absolute immunity
for an investigator who testified before a state judge to the factual basis of a criminal complaint that
had been authorized by a prosecutor who had independently reviewed the evidence).

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       Under Michigan law, Nasser, as a defendant-official accused of committing the intentional

tort of false arrest, may be entitled to the affirmative defense of governmental immunity for the state

claim of false arrest. To qualify for governmental immunity for an intentional tort, Nasser must

show that:

       (a) [t]he acts were undertaken during the course of employment and the employee
           was acting, or reasonably believed that he was acting, within the scope of his
           authority,
       (b) the acts were undertaken in good faith, or were not undertaken with malice, and
       (c) the acts were discretionary, as opposed to ministerial.

Odom v. Wayne Cnty., 760 N.W.2d 217, 228 (Mich. 2008). It is undisputed that Nasser was acting

within the scope of his employment and that his acts were discretionary.

       There is no good faith, however, and therefore no immunity from suit, “when the

governmental employee acts maliciously or with a wanton or reckless disregard of the rights of

another.” Id. at 225 (emphasis in original). The district court found a genuine issue of material fact

as to whether Nasser intentionally misrepresented evidence to the state judge, which would defeat

good faith. Thus, construing the facts in the light most favorable to Richardson, the district court

did not err in concluding that Nasser “did not act in good faith when testifying before the [state]

district judge and, therefore, is not entitled to summary judgment on the basis of governmental

immunity.” Dist. Ct. Op. at 30.




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                                      IV. CONCLUSION

       Proof of the facts and inferences as alleged by Richardson would establish the violation of

a clearly established right to be free from arrest without probable cause. Therefore, we AFFIRM

the district court’s denial of summary judgment on the federal claim of false arrest on the grounds

of qualified immunity. Under Michigan law, good faith is a necessary element of the governmental-

immunity defense. An issue of material fact remains as to whether Nasser intentionally made

misrepresentations to the state judge, which would defeat good faith. Accordingly, we AFFIRM

the district court’s denial of summary judgment on the state-law claim on the grounds of

governmental immunity.




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