                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0067p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                               X
                                                -
 EDWARD DROGOSCH,
                                                -
                                  Plaintiff-Appellee,
                                                -
                                                -
                                                    No. 08-1249
          v.
                                                ,
                                                 >
                                                -
                      Defendant-Appellant. -
 TIMOTHY METCALF,
                                                -
                                               N
                  Appeal from the United States District Court
              for the Eastern District of Michigan at Ann Arbor.
             No. 05-60071—John Corbett O’Meara, District Judge.
                                  Argued: December 11, 2008
                            Decided and Filed: February 25, 2009
                                                                                                *
     Before: MARTIN and GILMAN, Circuit Judges; CARR, Chief District Judge.

                                      _________________

                                            COUNSEL
ARGUED: Kevin R. Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Ben M. Gonek, LAW OFFICE, Detroit,
Michigan, for Appellee. ON BRIEF: Cori E. Barkman, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Ben M. Gonek, LAW
OFFICE, Detroit, Michigan, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        RONALD LEE GILMAN, Circuit Judge. Timothy Metcalf, a parole agent with
the Michigan Department of Corrections (MDOC), placed Edward Drogosch under
arrest based on the mistaken belief that Drogosch had violated the terms of his probation.


        *
           The Honorable James G. Carr, Chief United States District Judge for the Northern District of
Ohio, sitting by designation.


                                                  1
No. 08-1249          Drogosch v. Metcalf                                           Page 2


Because Metcalf did not have the proper type of paperwork with him to place Drogosch
in the custody of the Wayne County Jail as a probation violator, Metcalf decided to
lodge Drogosch in the jail using a type of form that identified him as a parole
violator—a class of prisoners that Metcalf knew would not be entitled to a prompt
probable-cause hearing before a judge. As a result, Drogosch lingered in jail for 13 days
before being released.

       Drogosch subsequently sued Agent Metcalf and several other defendants
pursuant to 42 U.S.C. § 1983, claiming that his constitutional rights were violated by the
defendants’ unlawful search and arrest, as well their failure to present him to a judge
promptly following the arrest. Metcalf now appeals the district court’s denial of his
motion for summary judgment that he had sought on the basis of qualified immunity.
For the reasons set forth below, we AFFIRM the judgment of the district court.

                                 II. BACKGROUND

A.     Factual background

       1.         Drogosch’s probation

       Drogosch had his first contact with the criminal justice system in 2003, when he
was charged in state court with three counts of third-degree criminal sexual conduct. He
was then 44 years old. Drogosch entered into a plea agreement to resolve the case.
Under the terms of that agreement, he pled guilty to a single charge of second-degree
criminal sexual conduct. The rest of the charges against him were then dropped. An
additional condition of the agreement provided that Drogosch’s guilty plea was to be
taken under advisement, so that the case would be dismissed in its entirety if he
successfully completed one year of probation.

       Between the judge’s acceptance of the plea and the scheduled sentencing hearing,
Drogosch met with John Lazarski, a probation officer with the MDOC. Lazarski
prepared a Pre-Sentence Investigation Report that erroneously stated that the victim of
Drogosch’s offense was a minor child. The victim was in fact 46 years old at the time
of the offense.
No. 08-1249        Drogosch v. Metcalf                                          Page 3


       In May 2004, Drogosch was sentenced to one year of probation. The terms of
the probation order required that he attend Alcoholics Anonymous at the discretion of
his probation officer, who was Lazarski. Drogosch was not, however, required to refrain
from drinking alcohol. Nor was he required to register as a sex offender. Because the
plea was taken “under advisement,” Drogosch was not technically convicted of any
crime, and he was therefore not disqualified from owning a firearm.

       2.      Operation SPOTCHECK/Drogosch’s arrest

       The MDOC and the Wayne County Sheriff’s Department set up a joint initiative
in 2004 called Operation SPOTCHECK with the goal of reducing crime by randomly
inspecting the homes of over 20,000 active parolees and probationers. In late October
2004, SPOTCHECK team members performed a series of unannounced checks on sex
offenders. Officer Lazarski submitted Drogosch’s name to his supervisor as a candidate
for a home inspection as part of this sweep. As a result, SPOTCHECK team members
were given a printout listing Drogosch as an individual to visit.

       On October 29, 2004, Agent Metcalf, along with two other SPOTCHECK team
members, arrived at Drogosch’s home in Livonia, Michigan. The agents were under the
impression, based on the printout that they had been given, that Drogosch’s victim was
between 13 and 15 years old at the time of the offense. Drogosch opened the door after
one of the agents knocked. He had bloodshot eyes, slurred speech, poor dexterity, and
a strong odor of alcohol on his breath.

       The agents entered the home without any objection by Drogosch. Once inside,
one of the agents accused Drogosch of drinking. He replied that he had consumed about
five beers that evening. Drogosch then walked down the hall to let his wife know that
the police were in their home. The agents followed behind him and noticed a computer
in the den. They asked Drogosch’s wife to turn it on. She complied, and one of the
agents briefly checked the computer, presumably for pornography. The agent found
nothing. Metcalf then asked Drogosch if there were any weapons in the house.
Drogosch answered that he had an unloaded pistol in the bottom drawer of his dresser.
Metcalf retrieved the gun from a case in the dresser, observing that it was in fact
No. 08-1249        Drogosch v. Metcalf                                            Page 4


unloaded and had a trigger lock. The case also contained registration and safety-
inspection forms for the pistol.

       Drogosch attempted to explain the terms of his probation to the agents. He
brought out two documents—his Order of Probation and Conditions of Probation—that
listed all of the restrictions and requirements associated with his probation. The agents
declined to look at the documents, simply stating “this doesn’t mean anything.”
Drogosch’s wife also attempted to explain that Drogosch was allowed to drink alcohol
and own a gun under the terms of his probation, but to no avail.

       Based on Drogosch’s apparent intoxication and possession of a firearm, the
agents concluded that he was in violation of his probation. They briefly debated among
themselves whether they could take Drogosch’s gun without taking him into custody,
but ultimately decided that they must make an arrest. While Drogosch was being
arrested, his wife repeated two or three times: “I’m sorry I befriended her.” Agent
Metcalf assumed that she was referring to the victim of Drogosch’s offense.

       The agents transported Drogosch to the Wayne County Jail. Jail policy required
that an appropriate detainer form be submitted before the jail would house Drogosch.
One of the agents filled out a SWIFT detainer form, which indicated on its face that
Drogosch was a probationer. A SWIFT detainer is a mechanism used by the Wayne
County Sheriff’s Department to temporarily hold fugitives or absconders and detain
them in jail until a more formal detainer is completed. But the desk attendant refused
to accept Drogosch for incarceration under the SWIFT detainer form, instead insisting
that Drogosch could be held only in connection with an MDOC-generated form. The
MDOC, however, did not have a specific form for lodging probationers in jail, despite
the SPOTCHECK operating procedures requiring that the arresting agent fill out any
necessary detainers following a probationer’s arrest.

       Agent Metcalf finally decided to complete and submit a parole detainer form, the
only form that he had available, in order to lodge Drogosch in the jail. Drogosch was
not, and never had been, on parole. Metcalf knew this. Moreover, Metcalf was aware
that a detained parolee, unlike a detained probationer, was not entitled to an immediate
No. 08-1249        Drogosch v. Metcalf                                             Page 5


hearing before a judge. He nonetheless decided to submit a form that misrepresented
Drogosch’s status so as to ensure that Drogosch would be jailed. Metcalf testified that
he did so because Drogosch appeared to be drunk and Metcalf was concerned that
Drogosch would do something to harm either his wife or the crime victim if not
incarcerated.

       Drogosch’s arrest took place on a Friday night. Agent Metcalf made an entry
that night in Drogosch’s electronic probation file on the MDOC computer system, noting
that Drogosch had been arrested and lodged in the Wayne County Jail. But Metcalf
waited until the following Monday, November 1, 2004, to call Lazarski, the probation
officer, to inform him that Drogosch had been taken into custody. Lazarski apparently
did not know at the time that Metcalf had used an inapplicable parole detainer form to
lodge Drogosch in the jail. After the telephone conversation, Lazarski prepared an Order
to Show Cause against Drogosch and sent it to the county court. He took no further
action until November 9, 2004. In the meantime, Drogosch lingered in jail.

       Agent Metcalf did not hear anything further regarding Drogosch until he received
word from Officer Lazarski on November 10, 2004 that the judge on duty had ordered
Drogosch released from jail. Lazarski told Metcalf, with some urgency in his voice,
something along the lines of “Judge Edwards wanted him out and he wanted him out
yesterday.” Metcalf then called the jail to tell them to prepare Drogosch for release, and
he obtained a “Parole Detainer Removal Form.” But when Metcalf and Drogosch
attempted to leave the jail, the staff at the jail refused to release Drogosch because he
was listed as having a November 12 court date. Drogosch was finally released the next
day, November 11, 2004, after a judge issued an order of discharge.

B.     Procedural background

       In April 2005, Drogosch filed a federal lawsuit pursuant to 42 U.S.C. § 1983
against Agent Metcalf, Officer Lazarski, the other arresting agents, Wayne County, and
two other county officials. The district court eventually dismissed Drogosch’s claims
against all of the defendants except for Metcalf. It specifically found that the agents’
arrest of Drogosch was valid because they reasonably believed that Drogosch was
No. 08-1249         Drogosch v. Metcalf                                               Page 6


violating the conditions of his probation, and the court accordingly dismissed the
unlawful search and arrest claims against Metcalf on the basis of qualified immunity.
But the court denied summary judgment on the claim that Metcalf had failed to promptly
bring Drogosch before a judge after the arrest. It concluded that a genuine issue of
material fact existed regarding whether Metcalf’s action in filing the parolee-detainer
form, and thereby failing to promptly present Drogosch to a judge following the arrest,
was reasonable under the circumstances.              Metcalf later filed a motion for
reconsideration, which the court denied.

                                      II. ANALYSIS

A.      Framework for qualified-immunity analysis

        Section 1983 provides a cause of action to those deprived of a constitutional right
by law enforcement officers acting under the color of state law. Gardenhire v. Schubert,
205 F.3d 303, 310 (6th Cir. 2000). A law enforcement officer’s key defense to a § 1983
action is encapsulated in the concept of qualified immunity.               Analysis of the
qualified-immunity defense generally proceeds under the two-step, sequential inquiry
articulated by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201 (2001). The
threshold question that the court must address is whether, “in the light most favorable
to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated
a constitutional right[.]” Id.; see also Charvat v. E. Oh. Reg’l Wastewater Auth., 246
F.3d 607, 616 (6th Cir. 2001) (“First, the court must ask whether the plaintiff in the civil
action has demonstrated the violation of a constitutionally protected right.”). Evaluating
the defense of qualified immunity on a motion for summary judgment requires that the
court “adopt[] . . . the plaintiff’s version of the facts.” Scott v. Harris, 127 S. Ct. 1769,
1775 (2007). “If no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified immunity.”
Saucier, 533 U.S. at 201.

        “On the other hand, if a violation could be made out on a favorable view of the
parties’ submissions, the next, sequential step is to ask whether the right was clearly
No. 08-1249         Drogosch v. Metcalf                                              Page 7


established.” Id.; see Charvat, 246 F.3d at 616 (explaining that the court must determine
“whether the right is so ‘clearly established’ that a reasonable official would understand
that what he is doing violates that right”) (citation and internal quotation marks omitted).
“This inquiry . . . must be undertaken in light of the specific context of the case, not as
a broad general proposition . . . .” Saucier, 533 U.S. at 201. A third consideration
occasionally examined by this court to “increase the clarity” of the analysis is “whether
the plaintiff offered sufficient evidence to indicate that what the official allegedly did
was objectively unreasonable in light of the clearly established constitutional rights.”
Estate of Carter v. City of Detroit, 408 F.3d 305, 311 n.2 (6th Cir. 2005) (citation
omitted).

B.      Violation of a constitutional right

        Drogosch alleges that his detention following a warrantless arrest violated the
Fourth Amendment’s prohibition against unlawful seizures. The Supreme Court has
held that individuals arrested and detained without a warrant are entitled to a “prompt”
judicial determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 125 (1975).
“The consequences of prolonged detention may be more serious than the interference
occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his
source of income, and impair his family relationships.” Id. at 114. Failing to conduct
a prompt probable-cause hearing following a warrantless arrest constitutes a violation
of the Fourth Amendment’s shield against unreasonable seizures. Powell v. Nev., 511
U.S. 79, 80 (1994). “Prompt” generally means within 48 hours of the warrantless arrest.
County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Here, Drogosch’s 13-day
confinement without a hearing after a warrantless arrest plainly constituted a violation
of his Fourth Amendment rights.

        Drogosch also asserts that his imprisonment without a hearing ran afoul of the
Due Process Clause of the Fourteenth Amendment, which protects against improper use
of the “formal constraints imposed by the criminal process.” Board of Regents v. Roth,
408 U.S. 564, 572 (1972). But it is the Fourth, rather than the Fourteenth, Amendment
that applies to this case because “the Fourth Amendment governs the period of
No. 08-1249         Drogosch v. Metcalf                                            Page 8


confinement between arrest without a warrant and the preliminary hearing at which a
determination of probable cause is made, while due process regulates the period of
confinement after the initial determination of probable cause.” Villanova v. Abrams, 972
F.2d 792, 797 (7th Cir. 1992). Because Drogosch was never provided with an initial
determination of probable cause, we conclude that the Fourth Amendment governs the
rights at stake in the present case.

        Agent Metcalf argues, however, that even if Drogosch’s constitutional rights
were violated, Drogosch’s claim against him fails the first prong of the qualified-
immunity test because Metcalf had no legal obligation to physically bring Drogosch
before a judge for a probation-violation hearing. Metcalf essentially contends that
“someone screwed up, but it wasn’t me.” According to Metcalf, his responsibility was
limited to informing the assigned probation officer, Lazarski, of the arrest, which he did
by documenting Drogosch’s electronic file and calling Lazarski the next business day
following the arrest. Metcalf reasons that it was Lazarski’s responsibility to ensure that
Drogosch received a prompt probable-cause hearing, and the responsibility of the jail
deputies to physically bring him before a judge.

        We “must look to state law to determine who is responsible for ensuring that a
judicial determination of probable cause is made within 48 hours after an arrest.”
Cherrington v. Skeeter, 344 F.3d 631, 644 (6th Cir. 2003). Michigan criminal law
provides that

        [a] peace officer who has arrested a person for an offense without a
        warrant shall without unnecessary delay take the person arrested before
        a magistrate of the judicial district in which the offense is charged to
        have been committed, and shall present to the magistrate a complaint
        stating the charge against the person arrested.
Mich. Comp. Laws § 764.13.             State law thus indicates that Metcalf bore the
responsibility as a “peace officer who . . . arrested a person . . . without a warrant” to
take Drogosch before a magistrate. Id.

        And even if Agent Metcalf was not technically responsible for bringing Drogosch
before a judge for a prompt hearing, his argument regarding the first qualified-immunity
No. 08-1249        Drogosch v. Metcalf                                             Page 9


prong still fails. Based on Drogosch’s version of the facts, Metcalf’s decision to
imprison Drogosch using an inapplicable detainer form was the root cause of the
constitutional violation. Drogosch would have automatically been given a prompt
hearing under established procedures had Metcalf properly classified him as a
probationer. Instead, by falsely characterizing Drogosch as a parolee, Metcalf ensured
that Drogosch would essentially be lost in the system. Drogosch has thus satisfied the
first prong of the qualified-immunity analysis.

C.     Clearly established right

       For a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This court has
held that the decision of the Supreme Court in County of Riverside v. McLaughlin, 500
U.S. 44, 56 (1991), which predated Drogosch’s arrest by more than a decade, would
have alerted a reasonable official to (i) the existence of the Fourth Amendment right to
a judicial determination of probable cause within 48 hours, and (ii) the unavailability of
any “intervening weekend or holiday” exception to the 48-hour rule. Cherrington,
344 F.3d at 644. Drogosch has accordingly satisfied the “clearly established” prong of
the qualified-immunity analysis.

D.     The objective reasonableness of Agent Metcalf’s actions

       Finally, we consider whether Agent Metcalf’s actions were objectively
reasonable in light of Drogosch’s clearly established rights. See Estate of Carter, 408
F.3d at 311 n.2. Metcalf argues that he chose the better of two bad options: (1) filling
out the incorrect detainer form, or (2) “allow[ing] an intoxicated, gun possessing, sex
offender [to] return to his home where he could possibly access his crime victim.” He
also urges us to recognize “‘that police officers are often forced to make split second
judgments—in circumstances that are tense, uncertain, and rapidly evolving’ and the
reasonableness of a particular action is to be judged from the perspective of a reasonable
No. 08-1249         Drogosch v. Metcalf                                         Page 10


officer on the scene and not with the benefit of 20/20 hindsight.” (Quoting Dorsey v.
Barber, 517 F.3d 389, 399 (6th Cir. 2008)).

        Agent Metcalf’s arguments on objective reasonableness ring hollow. As an
initial matter, law enforcement officers are indeed occasionally called upon to make
split-second decisions in the heat of the moment that, looking back, might not have been
ideal. But Metcalf’s act of imprisoning Drogosch involved nothing like split-second
decisionmaking. It instead dealt with the far more mundane matter of which jailhouse
form to complete. Metcalf had plenty of time to ponder the decision of whether to lodge
Drogosch in the jail using the incorrect detainer form.        Thus, in assessing the
reasonableness of Metcalf’s actions, we find no basis to accord him the same benefit of
the doubt as we would to actions taken in “heat of the moment” situations such as the
arrest of a violently resisting suspect.

        Agent Metcalf’s alternative argument that he chose the better of two bad options
in having Drogosch imprisoned is superficially appealing, but also fails upon closer
examination. Because the agents had already seized Drogosch’s firearm at the time of
the arrest, the only factors on which Metcalf could have based his decision that
Drogosch was too dangerous to release were that Drogosch (a) had been drinking
alcohol at home with his wife, (b) had a criminal record, and (c) received several
apologies from his wife for befriending some unidentified woman.

        These three factors simply do not justify Agent Metcalf’s decision to lodge
Drogosch in jail as a parole violator, which ensured that Drogosch would not receive a
prompt probable-cause hearing. Drogosch admitted that he had consumed “five or six
beers” before the agents’ arrival. Based on the strong smell of alcohol, slurred speech,
and other signs consistent with alcohol intoxication, Metcalf at best could have
reasonably concluded that Drogosch had been drinking.

        But Agent Metcalf would have known that Drogosch was not in violation of his
probation and was not even a felon if he had bothered to look at the probation paperwork
that Drogosch tried to show him before the arrest. Even if Metcalf did not have time to
go over Drogosch’s paperwork during the arrest, he would certainly have had time to
No. 08-1249         Drogosch v. Metcalf                                          Page 11


examine the forms on the way to the jail or during the period at the jail when he was
deciding what to do about the need for a proper detainer form. Metcalf simply showed
no interest whatsoever in examining Drogosch’s probation paperwork.

         In addition, Agent Metcalf’s fear that Drogosch would pose a threat to his wife
or his past victim if released was based on nothing more than pure speculation. The
wife’s comments to Drogosch that she was “sorry she befriended her”—which Metcalf
took to relate to the victim of Drogosch’s crime—were a somewhat understandable
response to the inexplicable scene unfolding before her eyes. Nothing about those
comments or any other evidence in the record shows that Drogosch was angry with or
likely to act in a threatening manner towards his wife, or that she was fearful of him.
Likewise, Metcalf’s belief that Drogosch’s former victim would have been endangered
if Drogosch was not imprisoned had no basis in fact. Metcalf knew of no evidence that
Drogosch had ever attempted to contact his crime victim after the date of the original
offense. And Drogosch gave no indication that he was likely to do so if he had been
released by the agents.

         In sum, Drogosch has carried his burden of demonstrating that a genuine issue
of material fact exists as to whether Agent Metcalf violated Drogosch’s clearly
established Fourth Amendment right to a prompt judicial determination of probable
cause following his warrantless arrest. The district court’s denial of qualified immunity
to Metcalf was therefore free of error.

                                 III. CONCLUSION

         For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
