                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 09a0223p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                 X
                           Plaintiff-Appellee, -
 JEFFREY MICHAEL MOLDOWAN,
                                                  -
                                                  -
                                                  -
                                                      Nos. 07-2115/2116/2117
            v.
                                                  ,
                                                   >
 CITY OF WARREN, DONALD INGLES, MICHAEL -
                                                  -
                                                  -
 SCHULTZ (07-2115); ALAN WARNICK
                                                  -
 (07-2116); MAUREEN FOURNIER (07-2117),
                      Defendants-Appellants. N
                   Appeal from the United States District Court
                  for the Eastern District of Michigan at Detroit.
               No. 05-70331—Anna Diggs Taylor, District Judge.
                             Argued: January 20, 2009
                          Decided and Filed: July 1, 2009
             Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Rosalind Rochkind, GARAN LUCOW MILLER, P.C., Detroit, Michigan,
Brian J. Richtarcik, CHAPMAN & ASSOCIATES, P.C., Bloomfield Hills, Michigan, Sarah
R. Prout, LAKESHORE LEGAL AID, Port Huron, Michigan, for Appellants. Michael R.
Dezsi, FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, Southfield, Michigan, for
Appellee. ON BRIEF: Rosalind Rochkind, Jami E. Leach, GARAN LUCOW MILLER,
P.C., Detroit, Michigan, Brian J. Richtarcik, Ronald W. Chapman, CHAPMAN &
ASSOCIATES, P.C., Bloomfield Hills, Michigan, Sarah R. Prout, William R. Knight,
LAKESHORE LEGAL AID, Clinton Township, Michigan, for Appellants. Marc M.
Susselman, Dennis A. Dettmer, Detroit, Michigan, for Appellee.
        CLAY, J., delivered the opinion of the court, in which MOORE, J., joined.
KETHLEDGE, J. (pp. 60-69), delivered a separate opinion concurring in the judgment in
part and dissenting in part.




                                          1
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                      Page 2


                                   _________________

                                         OPINION
                                   _________________

         CLAY, Circuit Judge. In this action, Plaintiff Jeffrey Moldowan (“Moldowan”)
asserts a number of claims under 42 U.S.C. § 1983 alleging violations of his rights under the
Fourth, Fifth, Sixth and Fourteenth Amendments, as well as claims under Michigan state
law. Moldowan’s claims arise out of his arrest, criminal prosecution, conviction, and retrial
for the 1990 abduction and brutal sexual assault of Maureen Fournier (“Fournier”). After
new evidence came to light and a key prosecution witness recanted her testimony, the
Michigan Supreme Court reversed Moldowan’s conviction in 2002. People v. Moldowan,
643 N.W.2d 570 (Mich. 2002). On retrial, in February 2003, Moldowan was acquitted of
all charges and released, having served nearly twelve years in prison.

         After his release, Moldowan filed the instant civil action asserting various claims
against the City of Warren, the Warren Police Department, Macomb County, the Macomb
County Prosecutor in his official capacity, Dr. Alan Warwick, Warren Police Detective
Donald Ingles, Warren Police Officer Mark Christian, and Fournier.                Moldowan
subsequently amended his complaint to assert claims against Warren Police Officer Michael
Schultz. Broadly speaking, Moldowan alleges that the Defendants—both acting separately
and conspiring together—violated his civil rights by fabricating evidence against him, failing
to disclose exculpatory evidence, and pursuing his prosecution and retrial without probable
cause.

         After discovery, the Defendants moved for summary judgment on all thirty-six
counts asserted in Moldowan’s Third Amended Complaint raising various immunity
defenses. After dismissing certain counts against Detective Ingles, the City of Warren, and
the Warren Police Department, and dismissing all counts against Officer Christian, the
district court denied Defendants’ motions for summary judgment in all other respects. These
three interlocutory appeals followed. For the reasons set forth herein, we AFFIRM IN
PART and REVERSE IN PART the judgment of the district court.
Nos. 07-2115/2116/2117          Moldowan v. City of Warren, et al.                          Page 3


                                                 I.

        Moldowan’s Third Amended Complaint asserts thirty-six claims against nine county,
municipal, and individual defendants. All claims arise out of Moldowan’s arrest, criminal
prosecution, conviction, and retrial for the abduction and assault of Maureen Fournier.

                                   A. Factual Background

        On the morning of August 9, 1990, Emergency Medical Service (“EMS”) found
Fournier badly injured and lying in the street in the City of Detroit. EMS transported
Fournier to St. John’s Hospital. The medical forms completed on her admission to the
hospital, as well as subsequent medical reports and testimony from her doctors, bear witness
to the extreme brutality of the crime. The police determined that Fournier had been abducted
from the City of Warren, brutally assaulted and raped, and left on a street in Detroit.

        Because Fournier had been abducted from Warren, the matter was turned over to the
Warren Police Department (“Department”), and the case was assigned to Detective Ingles.
Given the extent of Fournier’s injuries, officers had to wait two days before they could
interview her regarding the attack. Even then, the extent of Fournier’s injuries forced
                                                                                     1
Detective Ingles to write questions on a board, and Fournier responded in kind. During the
interview, Fournier reported that she had been abducted from Warren on the night of
August 8, 1990 by four Caucasian males, all of whom she knew. Fournier stated that,
while she was walking down the street, she was approached by Moldowan, who was her
ex-boyfriend, thrown into a white or light-colored van, and brutally beaten and raped by
three of the four assailants. Fournier identified her attackers as Michael Cristini, Jim
Cristini, Tracy Tapp (“Tapp”), and Moldowan. Fournier’s sister, Colleen Corcoran
(“Corcoran”), confirmed Fournier’s claims that Moldowan previously had assaulted and
threatened Fournier.

        After completing their investigation, the police arrested and charged all four
individuals. The police subsequently dropped the charges against Tapp based on his
alibi that he had been in Texas for several days prior to the assault, had not returned to

        1
         Detective Ingles subsequently transcribed Fournier’s responses to a witness statement form,
which she later signed.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 4


the Michigan until the evening of August 8, and spent the rest of the night with his
girlfriend. Tapp’s girlfriend confirmed his alibi.

       On September 17-18, 1990, the Macomb County Circuit Court held a preliminary
examination to determine whether sufficient evidence existed to proceed to trial. During
that hearing, Fournier testified that, prior to the assault, she had dated and lived with
Moldowan for more than a year before their relationship ended when he was arrested for
assaulting her. Fournier and her sister both testified that, prior to the attack, Moldowan
had been abusive toward Fournier and threatened her. In describing the assault, Fournier
testified that she had been walking on 11 Mile Road in Warren when a van pulled
alongside her. Fournier testified that Moldowan got out of the van, grabbed her, and
dragged her into the van, where she was beaten and raped. As a result of the assault,
Fournier suffered significant injuries that required extensive abdominal surgery.

       Corcoran also testified at the hearing, stating that she received a call from an
unidentified male on August 9, 1990, the day Fournier was found in Detroit, inquiring
as to Fournier’s whereabouts. Corcoran claims that she immediately recognized the
caller as Moldowan. Corcoran testified that, although she knew that her sister was in the
hospital, she lied and told Moldowan that her sister was at home with her, and that
Moldowan then exclaimed: “No, she’s not. . . . She’s at the morgue.” (J.A. 839.)
Corcoran also testified that Moldowan had called her home the previous day looking for
Fournier, and that Moldowan had stated that “he was going to get her.” (J.A. 841-42.)

       At the conclusion of the examination, the court dismissed Jim Cristini as a
defendant, but bound over Moldowan and Michael Cristini on all counts. A jury trial
was held from April 30 to May 10, 1991, during which Fournier and Corcoran offered
substantially the same testimony they provided during the preliminary examination.
Fournier also testified that she had never been in the Detroit neighborhood where EMS
found her, and that she had never frequented a crack house in the area.

       In addition, Dr. Alan Warwick, D.D.S., a forensic odontologist and consultant
for the Wayne County Medical Examiner’s Office and a consultant to Macomb County,
Monroe County, and the Michigan State Police, offered expert testimony that bite marks
Nos. 07-2115/2116/2117      Moldowan v. City of Warren, et al.                    Page 5


on Fournier’s neck were consistent with dental impressions taken from Moldowan, and
that bite marks on Fournier’s right arm and right side were consistent with Michael
Cristini’s dentition. In describing his conclusions, Dr. Warnick testified that the
“chances are . . . 2.1 billion to 1 that another individual can make those same marks.”
(J.A. 2544.)

       In presenting their defense, Cristini and Moldowan offered alibi witnesses who
testified that the defendants were not together on the evening in question. The defense
also introduced pizza delivery tickets which documented the location of the pizza
deliveries Cristini had made the night of August 8, 1990, seeking to show that Cristini
could not have been part of the kidnaping. The defense also presented testimony from
a witness who claimed that she observed several males in the street where Fournier was
found, and that the males were both Caucasian and African-American. The defense also
offered expert testimony from its own forensic odontologists countering Dr. Warnick’s
testimony concerning the bite-mark evidence.

       On rebuttal, the prosecution called Dr. Pamela Hammel, D.D.S., a colleague of
Dr. Warnick, who offered testimony corroborating and supporting Dr. Warnick’s
conclusions.

       On May 10, 1991, the jury convicted Moldowan and Cristini of kidnaping,
assault with intent to commit murder, and two counts of criminal sexual conduct in the
first degree. After sentencing, the court entered an order requiring that “[a]ll evidence
in the custody of the Warren Police Department, the Macomb County Prosecutor’s
Office and the Macomb County Circuit Court[,] whether admitted into evidence or not
. . . [,] be preserved from this date forward until further order of the Circuit Court,
Michigan Court of Appeals, or Michigan Supreme Court.” (J.A. 2613.)

       After trial, a private investigator hired by Moldowan’s family located a witness,
Jerry Burroughs, who reported that, on the morning of August 9, 1990, he saw four
African-American males standing around a naked white female who was lying in the
street, and that he saw the four men leave in a light-colored van. Burroughs further
recounted that, approximately one week after the assault, he overheard two of those same
Nos. 07-2115/2116/2117           Moldowan v. City of Warren, et al.                           Page 6


men talking about the incident and bragging that they had participated in the assault.
Burroughs also indicated that he had seen Fournier in that neighborhood several times
that summer frequenting a crack house in the area.

        In addition to this new evidence, Dr. Hammel, after being approached several
years later by Moldowan’s appellate counsel, also recanted her testimony. Dr. Hammel
explained that she initially had trouble matching the defendants’ dentitions to the bite
marks on Fournier’s body, but that Dr. Warnick had reassured her that Dr. Norman
Sperber, a highly respected forensic odontologist, had reviewed the evidence and
confirmed Dr. Warnick’s conclusions. After subsequently determining that Dr. Sperber
had never reviewed any evidence in the case, Dr. Hammel surmised that Dr. Warnick
“had been deceptive in order to mislead [her] into testifying in support of his
conclusions.”2 (J.A. 2568.) In a sworn affidavit, Dr. Hammel stated that, had she
known that Dr. Warnick’s representation that Dr. Sperber had reviewed the evidence was
untrue, she “would never have agreed to testify as a rebuttal witness in support of Dr.
Warnick’s conclusions.” (J.A. 2568.)

        On the basis of this new evidence and discredited testimony, Moldowan again
sought review of his conviction. The Michigan Supreme Court eventually reversed
Moldowan’s conviction, and remanded the matter for a new trial. In particular, the
Michigan Supreme Court found that “the prosecutor’s two expert witnesses with respect
to ‘bite-mark’ evidence have either recanted testimony which concluded that bite marks
on the victim were made by the defendant or presented opinion evidence which has now
been discredited.” Moldowan, 643 N.W.2d at 570. The court also noted that the
prosecutor conceded that “it simply is not fair to say that the defendant or defendant’s
counsel should have known about the problems with the bite-mark evidence prior to
trial. The same can also be said with regard to the later-discovered alibi witnesses. . . .
Without the bite-mark evidence and with the additional alibi witnesses, the result of the
trial could have been different.” Id. at 571.

        2
          Dr. Warnick disputes Dr. Hammel’s claims and denies that he ever told Dr. Hammel that he had
consulted with Dr. Sperber. Dr. Warnick also denies that Dr. Hammel ever expressed any doubt about her
conclusions prior to Moldowan’s 1991 trial.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                        Page 7


       On retrial, in February 2003, Moldowan was acquitted of all charges and
released. All told, Moldowan spent nearly twelve years in prison.

                   B. Procedural History of the Instant Action

       On January 28, 2005, Moldowan brought this civil action asserting numerous
claims under 42 U.S.C. § 1983 and Michigan state law. Moldowan ultimately filed three
amended complaints. In resolving an earlier motion regarding discovery, the district
court offered the following summary of the claims asserted by Moldowan in his Third
Amended Complaint, the operative pleading at this juncture:

       Plaintiff’s current complaint (Third Amended Complaint filed
       February 9, 2006) alleges a total of 36 counts against several groups of
       defendants: City of Warren; Police Department of City of Warren
       (WPD); County of Macomb and its Prosecutor in his official capacity;
       and sued in their individual and official capacities: Alan Warnick
       [forensic consultant], Donald Ingles [WPD detective], Mark Christian
       [WPD detective], Michael Schultz [WPD sergeant in charge of the
       evidence room], and “other Present and Former Members of the Warren
       Police Department and office of the Macomb County Prosecutor as yet
       unidentified,” and sued individually: Maureen Fournier [the crime
       victim]. The case currently exceeds 200 docket entries with numerous
       . . . discovery disputes and appeals. Extensive discovery has been
       conducted—lengthy depositions taken and numerous interrogatories and
       requests to produce exchanged.
       The complaint alleges federal violations of plaintiff’s civil and
       constitutional rights during his criminal prosecution, as well as state
       claims including intentional infliction of emotional distress against Ms.
       Fournier for her conduct in the second prosecution. Relevant to the
       instant motion are plaintiff’s claims against the City of Warren and the
       Warren Police Department. With respect to these defendants, plaintiff
       alleges a conspiracy between Warnick and members of the Warren Police
       (Counts V, VI, VII, VIII), and conspiracy between Ms. Fournier and
       members of the Warren Police Department (Counts XVI, XVII, XVIII,
       XIX). Plaintiff also contends that there is liability on the part of the City
       of Warren and Warren Police Department for inadequate training and/or
       supervising of police officers regarding the constitutional rights of
       citizens (Count XXIV), and for the actions of defendant Ingles as the
       final policymaker in conducting the investigation (Count XXV).
       Additionally, plaintiff claims liability against the City of Warren and the
       Warren Police Department for the destruction of evidence in violation of
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                        Page 8


       a court order. He also claims that the Warren Police Department and the
       City of Warren are liable, along with Macomb County and its prosecutor,
       for the continued seizure and prosecution of plaintiff without probable
       cause in the second trial in violation of his constitutional rights under the
       Fourth Amendment (Count XXVII), and his rights to substantive due
       process under the Fourteenth Amendment (Count XXVIII), and his rights
       to procedural due process under the Fourteenth Amendment (Count
       XXIX). He also has a state claim for false imprisonment in connection
       with the second prosecution (Count XXXV).
Moldowan v. City of Warren, No. 05-CV-70331, 2006 U.S. Dist. LEXIS 82161, at *7-10
(E.D. Mich. Oct. 31, 2006) (alterations in original).

       After extensive discovery, Defendants filed motions for summary judgment,
asserting various qualified and absolute immunity defenses. Moldowan opposed those
motions and cross-moved for partial summary judgment. Based on concessions made
by Moldowan in his response to Defendants’ motions, the district court dismissed Counts
XXV, XXVII, XXVIII, and XXIX as to the City of Warren and the Warren Police
Department, dismissed all claims against Officer Christian, and dismissed Count XXXII
against Detective Ingles.

       After receiving briefing from all parties and hearing argument on the matter, the
district court denied Defendants’ motions as to all remaining claims. The district court
denied the County’s motion on the grounds that “[t]he filing is appropriate against the
County as a matter of law and certainly there are many questions of material fact for a
jury to determine.” (J.A. 3041.) As to the Warren Defendants’ motion, the district court
concluded that “[t]here are far too many questions of fact here.” (J.A. 3020.) As to Dr.
Warnick’s motion, the court concluded that the motion “has to be denied” because
“[t]here are too many facts at issue here even as to qualified immunity to grant summary
judgment.” (J.A. 3065.) As to Fournier’s motion, the court concluded that “[t]here are
innumerable issues of fact here, particularly as to simply whether Fournier lied or not.
And the Court will instruct . . . that this was an intentional infliction or the jury is to
decide whether there was an intentional infliction of emotional distress. I do find that
the elements have been met.” (J.A. 3090-91.) The court also denied Moldowan’s
motion for partial summary judgment.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                      Page 9


        The district court subsequently entered three written orders stating merely that
Defendants’ motions for summary judgment were “denied for the reasons stated on the
record.” (J.A. 323, 326, 328.) The district court’s written order as to the Warren
Defendants’ motion also dismissed “all claims against the City of Warren Police
Department . . . for the reason that the City of Warren Police Department is not a legal
entity capable of being sued.” (J.A. 326.)

        These three interlocutory appeals followed.

                                             II.

        Before turning to the merits of Defendants’ appeals, we first must determine
whether and to what extent we have jurisdiction to consider on interlocutory appeal the
issues raised by the parties. On December 3, 2007, Moldowan moved this Court to
dismiss each of the three interlocutory appeals, arguing that the trial court’s orders do
not constitute final orders appealable under 28 U.S.C. § 1291 and are not appealable
under the collateral order doctrine. By order dated March 27, 2008, a prior panel of this
Court referred Moldowan’s motions to this panel for resolution. Upon consideration, we
hereby deny Moldowan’s motions.

               A. Jurisdiction under the Collateral Order Doctrine

        Although 28 U.S.C. § 1291 vests this Court with jurisdiction over appeals only
from “final decisions” of the district courts, “a decision ‘final’ within the meaning of
§ 1291 does not necessarily mean the last order possible to be made in a case.” Gillespie
v. United States Steel Corp., 379 U.S. 148, 152 (1964). A decision also is appealable if
it falls within “that small class [of orders] which finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949). That “small class” of decisions is limited to orders granting
or denying a claim that “cannot be effectively vindicated after the trial has occurred.”
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 10


       The requirements for bringing an appeal under Cohen’s collateral order doctrine
“have been distilled down to three conditions: that an order ‘[1] conclusively determine
the disputed question, [2] resolve an important issue completely separate from the merits
of the action, and [3] be effectively unreviewable on appeal from a final judgment.’”
Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting Puerto Rico Aqueduct and Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). In Johnson v. Jones, 515 U.S.
304 (1995), the Supreme Court clarified these elements as follows:

       The requirement that the issue underlying the order be “effectively
       unreviewable” later on, for example, means that failure to review
       immediately may well cause significant harm. The requirement that the
       district court’s order “conclusively determine” the question means that
       appellate review is likely needed to avoid that harm. The requirement
       that the matter be separate from the merits of the action itself means that
       review now is less likely to force the appellate court to consider
       approximately the same (or a very similar) matter more than once, and
       also seems less likely to delay trial court proceedings (for, if the matter
       is truly collateral, those proceedings might continue while the appeal is
       pending).
Id. at 311 (citations omitted) (emphasis in original). The Court also has noted that
“some particular value of a high order” must be “marshaled in support of the interest in
avoiding trial.” Will, 546 U.S. at 352. Thus, to take advantage of the collateral order
doctrine, a party pursuing an interlocutory appeal must satisfy these three basic elements,
as well as demonstrate that the challenged order “‘imperil[s] a substantial public
interest.’” Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 948 (6th Cir. 2006) (quoting
Will, 546 U.S. at 353).

                B. Jurisdiction in the Context of Immunity Claims

       Whether we have jurisdiction to consider an issue on interlocutory appeal thus
requires us to consider the three basic elements as well as whether the denial of summary
judgment implicates “substantial public interests.”      In this case, that requires us to
consider the interests implicated by the district court’s denial of Defendants’ qualified
and absolute immunity claims in the context in which those defenses have been asserted.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 11


                    1. Defendants’ Qualified Immunity Claims

        Generally speaking, the rationale underlying the qualified immunity doctrine is
that, “where an official’s duties legitimately require action in which clearly established
rights are not implicated, the public interest may be better served by action taken ‘with
independence and without fear of consequences.’” Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). “Unless the plaintiff’s
allegations state a claim of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement of discovery.”
Mitchell, 472 U.S. at 526. Like absolute immunity, the qualified immunity privilege
entitles a party to “immunity from suit rather than a mere defense to liability,” and thus
“is effectively lost if a case is erroneously permitted to go to trial.” Id. (emphasis in
original).

        In light of these interests, the Supreme Court has concluded that the denial of a
defendant’s assertion of qualified immunity “easily meets” the Cohen requirements:

        Such a decision is “conclusive” in either of two respects. In some cases,
        it may represent the trial court’s conclusion that even if the facts are as
        asserted by the defendant, the defendant’s actions violated clearly
        established law and are therefore not within the scope of the qualified
        immunity. In such a case, there will be nothing in the subsequent course
        of the proceedings in the district court that can alter the court’s
        conclusion that the defendant is not immune. Alternatively, the trial
        judge may rule only that if the facts are as asserted by the plaintiff, the
        defendant is not immune. At trial, the plaintiff may not succeed in
        proving his version of the facts, and the defendant may thus escape
        liability. Even so, the court’s denial of summary judgment finally and
        conclusively determines the defendant’s claim of right not to stand trial
        on the plaintiff’s allegations, and because “[there] are simply no further
        steps that can be taken in the District Court to avoid the trial the
        defendant maintains is barred,” it is apparent that “Cohen’s threshold
        requirement of a fully consummated decision is satisfied” in such a case.
        Abney v. United States, 431 U.S. 651, 659 (1977).
Mitchell, 472 U.S. at 527. Thus, pursuant to Mitchell, “federal appellate courts have
jurisdiction to hear interlocutory appeals considering ‘the legal question of qualified
immunity, i.e., whether a given set of facts violates clearly established law.’” Farm
Nos. 07-2115/2116/2117         Moldowan v. City of Warren, et al.                       Page 12


Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 531 (6th Cir. 2002)
(quoting Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999)); Dickerson
v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).

        In considering the denial of a defendant’s claim of qualified immunity, however,
our jurisdiction is limited to resolving pure questions of law. See Mitchell, 472 U.S. at
530 (addressing denial of a claim of qualified immunity, but only “to the extent that it
turns on an issue of law”). We lack jurisdiction to consider “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, 515 U.S. at 313; Berryman v. Rieger,
150 F.3d 561, 563 (6th Cir. 1998) (“A defendant who is denied qualified immunity may
file an interlocutory appeal with this Court only if that appeal involves the abstract or
pure legal issue of whether the facts alleged by the plaintiff constitute a violation of
clearly established law.”). In light of this jurisdictional limitation, “a district court’s
determination that there exists a triable issue of fact cannot be appealed on an
interlocutory basis, even when the finding arises in the context of an assertion of
qualified immunity.” Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006).
To permit an appeal in such circumstances “would interject appellate review into a
district court’s determination that the evidence is sufficient for trial, a nonfinal
adjudication for purposes of 28 U.S.C. § 1291.” Id. at 743. “Under Johnson, therefore,
a determination that a given set of facts violates clearly established law is reviewable,
while a determination that an issue of fact is ‘genuine’ is unreviewable.” See v. City of
Elyria, 502 F.3d 484, 490 (6th Cir. 2007);

        This jurisdictional limitation requires that, 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.” Berryman,
150 F.3d at 563; Meals v. City of Memphis, 493 F.3d 720, 726-27 (6th Cir. 2007) (“[A]
defendant is required to limit her argument to questions of law premised on facts taken
in the light most favorable to the plaintiff.”); Sheets v. Mullins, 287 F.3d 581, 585 (6th
Cir. 2002) (“In this circuit, it is well established that, for appellate jurisdiction to lie over
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                              Page 13


an interlocutory appeal, a defendant seeking qualified immunity must be willing to
concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by
the case.”). “Once a defendant’s argument drifts from the purely legal into the factual
realm and begins contesting what really happened, our jurisdiction ends and the case
should proceed to trial.” Berryman, 150 F.3d at 564 (finding lack of jurisdiction to
consider defendants’ appeal to the extent that defendants “attempt[ed] to persuade us to
believe their version of the facts”); Harrison v. Ash, 539 F.3d 510, 517 (6th Cir. 2008)
(“Thus, to the extent that the denial of qualified immunity is based on a factual dispute,
such a denial falls outside of the narrow jurisdiction of this Court.”).

         In Scott v. Harris, 550 U.S. 372 (2007), however, the Supreme Court recognized
an apparent exception to this jurisdictional limitation when it considered and rejected a
district court’s denial of summary judgment even though the district court had found
genuine issues existed as to material facts. In reaching that conclusion, and without
addressing the issue of jurisdiction, the Court found that a video of the incident rendered
the plaintiff’s version of the facts “so utterly discredited by the record that no reasonable
jury could have believed him.” Id. at 380. In trying to reconcile Scott with the Supreme
Court’s edict in Johnson, this Court has concluded that “‘where the trial court’s
determination that a fact is subject to reasonable dispute is blatantly and demonstrably
false, a court of appeals may say so, even on interlocutory appeal.’”3 Wysong v. Heath,
260 F. App’x 848, 853 (6th Cir. 2008) (quoting Blaylock v. City of Philadelphia, 504
F.3d 405, 414 (3rd Cir. 2007)).

         It also is important to note that a district court’s stated basis for denying an
immunity claim “does not necessarily foreclose this Court’s jurisdiction over [a party’s]
appeal.” City of Elyria, 502 F.3d at 490; see also Christophel v. Kukulinsky, 61 F.3d
479, 485 (6th Cir. 1995) (“A defendant’s right to appeal the denial of qualified immunity
does not turn on the phrasing of the district court’s order.”). Rather, “‘regardless of the
district court’s reasons for denying qualified immunity, we may exercise jurisdiction

         3
           In Wysong, this Court found that the plaintiff’s admission in his deposition that no factual
dispute existed fell within this exception and warranted reversal of the district court’s finding of disputed
material facts. 260 F. App’x at 853-54.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 14


over the . . . appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d
685, 689-90 (6th Cir. 1999) (quoting Dickerson, 101 F.3d at 1157) (emphasis in
Williams).

        After reviewing Defendants’ various qualified immunity claims, we conclude
that, while these appeals predominantly raise questions of law that are capable of
appellate review at this juncture, they also present some issues of fact that Johnson
dictates are beyond the scope of our jurisdiction. Where the parties ask us to resolve
factual disputes, we set those issues aside for resolution by the trial court. See Gregory,
444 F.3d at 742-43 (“To the extent that an appellant on interlocutory appeal argues
issues of fact and law on appeal, this Court will only entertain pure issues of law.”).



                    2. Defendants’ Absolute Immunity Claims

        Detective Ingles, Dr. Warnick, and Fournier also challenge the district court’s
denial of their claims of absolute testimonial or witness immunity, which they assert in
response to those claims arising out of (or based in part on) their testimony at trial.

        Unlike qualified immunity, the denial of a defense of absolute witness immunity
generally is not immediately appealable because the “lack of interlocutory appeal from
denials of witness immunity does not ‘imperil [a] substantial public interest.’” Kelly,
447 F.3d at 949. Despite acknowledging that testimonial immunity “strengthens the
substantial public interest of having witnesses come forward and testify truthfully,” we
nevertheless concluded in Kelly that the denial of such claims does not imperil that
overarching interest because “private individuals . . . will appear as witnesses, at most,
only a few times in their lives.” Id. On that basis, we reasoned that permitting a suit to
proceed against “private individuals” does not implicate the same interests as an appeal
from the denial of public official immunity, where the relevant interest is more
significant given that “the official, by spending more time than necessary to defend
himself or herself in an action, would spend less time on the tasks for which he or she
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                    Page 15


was hired and cost the public additional money in defending a suit that should have been
dismissed.” Id.

        Unlike the defendants before us in Kelly, however, the defendants asserting
testimonial immunity in this case are a police officer, a forensic consultant, and the
victim of a brutal crime. Moreover, each asserts immunity based on testimony delivered
in the course of a criminal prosecution. In light of these factors, we conclude that the
balance of interests at issue in this case differs dramatically from the interests implicated
by the denial of immunity in Kelly. Because Kelly does not dispose of the question
presented here, we must determine whether the denial of an absolute witness immunity
claim asserted under these particular circumstances imperils a substantial public interest.
We conclude that it does.

        As to Detective Ingles and Dr. Warnick, the interests implicated by the district
court’s denial of their testimonial immunity claims are sufficiently akin to those
implicated by the denial of public official immunity to support interlocutory review. As
the Court noted in Kelly:

        Official immunity seeks to protect the ability of an official to exercise
        discretion in accomplishing public tasks and to prevent the official from
        spending time in court defending actions that are reasonably thought to
        be legal. Without interlocutory appeal from district court denials of
        immunity, the official, by spending more time than necessary to defend
        himself or herself in an action, would spend less time on the tasks for
        which he or she was hired and cost the public additional money in
        defending a suit that should have been dismissed. The lack of speedy
        resolution of the claim also threatens the official’s decisiveness in taking
        action while the action is proceeding to trial.
447 F.3d at 949 (citation omitted). Those same interests are at stake where, as here, a
district court denies the absolute immunity claim of a police officer or forensic
investigator who testifies on behalf of the state as part of a criminal prosecution. See
Vakilian v. Shaw, 335 F.3d 509, 515-16 (6th Cir. 2003) (considering interlocutory appeal
from the denial of immunity asserted by a government investigator). Exposing police
officers and forensic investigators to suit based on testimony they deliver as part of their
official duties and on behalf of the state undoubtedly implicates their ability to exercise
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                               Page 16


their discretion and potentially inhibits them from performing their duties.4 Unlike the
parties before us in Kelly, “[s]ection 1983 lawsuits against police officer witnesses, like
lawsuits against prosecutors, ‘could be expected with some frequency.’ Police officers
testify in scores of cases every year, and defendants often will transform resentment at
being convicted into allegations of perjury by the State’s official witnesses.” Briscoe v.
LaHue, 460 U.S. 325, 343 (1983) (quoting Imbler v. Pachtman, 424 U.S. 409, 425
(1976)). Furthermore, because Detective Ingles and Dr. Warnick represented the State
of Michigan in the underlying criminal proceedings against Moldowan, their exposure
to suit also “would cause a continuing injury to the State’s dignitary interests every
additional day that [its officials] must remain in federal court.” Kelly, 447 F.3d at 949.

         As to Fournier, we also conclude that the denial of her assertion of absolute
immunity warrants immediate review as it would imperil substantial public interests.
Although Fournier undoubtedly is a “private individual” and not a public official, the
balance of interests implicated here differs significantly from those at issue in Kelly
because the claims against her arose out of testimony she delivered as a victim witness
in the course of a criminal trial.

         Extending interlocutory review to the denial of a testimonial immunity claim in
this context serves several important public interests. Most obviously, immunity from
suit prevents witness intimidation and self-censorship. Declining interlocutory review
under these circumstances would expose victims of crimes who testify in criminal
proceedings to suit—including the discovery, depositions, hearings, trials, and other
proceedings that attend civil actions—and thus would create a substantial disincentive
for victims to come forward to identify their attackers. That concern, in turn, implicates


         4
           Among other things, Moldowan claims that this Court lacks jurisdiction to consider Detective
Ingles’ appeal because Ingles is now retired. Moldowan, however, offers no authority to support his
contention that this is a relevant consideration. Moreover, Moldowan’s claims against Detective Ingles
arise out of testimony Ingles delivered as an active police officer with the Warren Police Department in
the course of his official duties. Consequently, granting Moldowan’s motion obviously will resound much
further than the limits of this case. Indeed, by denying Detective Ingles’ assertion of immunity with
respect to Moldowan’s Brady claims, the district court implicitly concluded that Brady could support a
claim against a police officer who fails to disclose exculpatory materials to the prosecutor’s office, as that
question of law lay at the heart of those claims. That conclusion obviously has implications that reach
beyond the unique circumstances of this case. Accordingly, this Court has jurisdiction to consider
Detective Ingles’ appeal. See City of Elyria, 502 F.3d at 489-90.
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                    Page 17


the effective administration of the criminal justice system, which is undoubtedly a
weighty public interest. See Briscoe, 460 U.S. at 343 (recognizing absolute testimonial
immunity for police officers because their testimony, among other things, provides a
significant “contribution to the judicial process”).

        This concern is all the more significant in this particular context because Fournier
was the victim of a brutal sexual assault, and thus the threat of being dragged through
the rigors of a civil suit based on her identification of, and testimony against, her alleged
attacker would create a tremendous emotional hardship on her. Declining to consider
Fournier’s appeal ultimately would create a significant disincentive for other victims of
rape and sexual assault to come forward and testify against their attackers. Victims of
crimes, especially the types of crimes that occurred here, must feel secure that
cooperating with the police will not expose them to lengthy and invasive civil
proceedings. The denial of immunity imperils that interest because subjecting victim
witnesses to the proceedings attendant to civil litigation potentially re-exposes them to
significant emotional trauma. As Fournier’s brief to this Court succinctly frames the
issue: “If a woman who has been sodomized, beaten and left permanently disabled can
be sued and subjected to an endless retread of the brutalization against her through
deposition and discovery, the entire criminal justice system is put at risk.” Fournier Br.
at 22. We agree.

        Moreover, as the Supreme Court has noted, it is “the right and privilege” of
individuals “to aid in the execution of the laws of his country by giving information to
the proper authorities of violations of those laws,” and that right “may properly be said
to be secured by the Constitution and laws of the United States.” Motes v. United States,
178 U.S. 458, 462-63 (1900).

        For these reasons, we hereby DENY Moldowan’s motions to dismiss. The
collateral order doctrine is satisfied here because Defendants’ absolute and qualified
immunity claims not only would be irretrievably lost if this case were to proceed to trial,
but also because subjecting these particular Defendants to civil proceedings implicates
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 18


substantial public interests. Again, however, we may consider Defendants’ appeals only
to the extent that they raise pure questions of law. See Johnson, 515 U.S. at 313-18.

                                           III.

       We review the district court’s denial of summary judgment de novo, using the
same Rule 56(c) standard as the district court. See White v. Baxter Healthcare Corp.,
533 F.3d 381, 389 (6th Cir. 2008); Williams, 186 F.3d at 689. Summary judgment is
proper “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of
material fact exists when there are “disputes over facts that might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). However, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l
Bank of Arizona v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).

       At the summary judgment stage, the moving party bears the initial burden of
identifying those parts of the record that demonstrate the absence of any genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
seeks summary judgment on an issue for which it does not bear the burden of proof at
trial, however, the moving party may meet its burden by showing “that there is an
absence of evidence to support the nonmoving party’s case.” Id. at 325. When the
moving party has carried this burden, “its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
The non-moving party also may not rest upon its mere allegations or denials of the
adverse party’s pleadings, but rather must set forth specific facts showing that there is
a genuine issue for trial. Id.; Fed. R. Civ. P. 56(e)(2).

       After the parties have presented their evidence, “the judge’s function is not
himself to weigh the evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In evaluating the
Nos. 07-2115/2116/2117      Moldowan v. City of Warren, et al.                   Page 19


evidence, the court must draw all inferences in the light most favorable to the non-
moving party. Matsushita, 475 U.S. at 587. “The mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be insufficient [to defeat
a motion for summary judgment]; there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

       That Defendants’ motions for summary judgment were based on claims of
absolute and qualified immunity does not affect the standard of review that applies. See
Gregory, 444 F.3d at 737. Whether a defendant is entitled to absolute or qualified
immunity from liability under 42 U.S.C. § 1983 is a legal question that this Court
reviews de novo. Id. at 737, 742.

                                           IV.

       Having determined that we have jurisdiction to consider Defendants’
interlocutory appeals and settled the standard of review that applies, we now turn to the
merits of Defendants’ claims. First, we consider the qualified and absolute immunity
claims raised in Case No. 07-2115, the appeal of the City of Warren, Detective Ingles,
and Officer Schultz.

                               A. Qualified Immunity

       “Government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow, 457 U.S. at 818. “The central purpose of affording public officials
qualified immunity from suit is to protect them ‘from undue interference with their
duties and from potentially disabling threats of liability.’” Elder v. Holloway, 510 U.S.
510, 514 (1994) (quoting Harlow, 457 U.S. at 806).

       In Williams v. Mehra, supra, this Court articulated a “tripartite” procedure for
evaluating claims of qualified immunity:

       First, we determine whether a constitutional violation occurred; second,
       we determine whether the right that was violated was a clearly
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 20


       established right of which a reasonable person would have known;
       finally, we determine whether the plaintiff has alleged sufficient facts,
       and supported the allegations by sufficient evidence, to indicate that what
       the official allegedly did was objectively unreasonable in light of the
       clearly established constitutional rights.
186 F.3d at 691 (citing Dickerson, 101 F.3d at 1157-58). The first step in our inquiry,
then, is to consider the “threshold question” whether, “[t]aken in the light most favorable
to the party asserting the injury, do the facts alleged show the officer’s conduct violated
a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no constitutional
right would have been violated were the allegations established, there is no necessity for
further inquiries concerning qualified immunity.” Id. If a violation could be made out
on a favorable view of the parties’ submissions, however, we must then consider whether
the right was “clearly established.” “This inquiry, it is vital to note, must be undertaken
in light of the specific context of the case, not as a broad general proposition.” Id. “The
relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. Finally, and only if these first two elements are satisfied,
this Court “occasionally” has gone on to determine “‘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.’” Drogosch v.
Metcalf, 557 F.3d 372, 378 (6th Cir. 2008) (quoting Estate of Carter v. City of Detroit,
408 F.3d 305, 311 n.2 (6th Cir. 2005)).

       In Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808 (2009), the Supreme Court
recently reconsidered the mandatory nature of the inquiry set forth in Saucier,
concluding that, “while the sequence set forth there is often appropriate, it should no
longer be regarded as mandatory.” Id. at 818. Acknowledging several drawbacks to the
sequence required under Saucier, the Court reasoned that “[t]he judges of the district
courts and the courts of appeals should be permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Id. Although
rejecting the mandatory nature of the Saucier framework, the Court nevertheless
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 21


recognized that applying that framework “is often beneficial.” Id. In light of Pearson,
then, we still are required to address the same questions in conducting our qualified
immunity analysis, but now we are free to consider those questions in whatever order
is appropriate in light of the issues before us.

        “Once the qualified immunity defense is raised, the burden is on the plaintiff to
demonstrate that the officials are not entitled to qualified immunity.” Silberstein v. City
of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Barrett v. Steubenville City Schools,
388 F.3d 967, 970 (6th Cir. 2004)).

                                B. Absolute Immunity

        “More limited in application, but certainly broader in protection, is absolute
immunity, which the Supreme Court has held applies to the performance of certain
functions when those functions are integral to the functioning of our adversarial judicial
system.” Gregory, 444 F.3d at 738 (citing Briscoe, 460 U.S. at 345). In defining the
scope of the absolute immunity doctrine, the Supreme Court has employed a functional
test: “Those functions more ‘intimately associated with the judicial phase of the
criminal process’ are more likely to merit careful consideration for absolute immunity.
In contrast, those functions more ‘investigative’ in nature – searching for ‘clues and
corroboration’ – are more removed from the judicial process and merit only qualified
immunity.” Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)).

        Unlike qualified immunity, “[t]he official seeking absolute immunity bears the
burden of showing that such immunity is justified for the function in question.” Buckley,
509 U.S. at 269.

                                      C. Analysis

        In his complaint, Moldowan seeks recovery under 42 U.S.C. § 1983 for various
alleged violations of his constitutional rights. Section 1983, however, “‘is not itself a
source of substantive rights,’ but merely provides ‘a method for vindicating federal
rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Consequently, to determine whether
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                             Page 22


Moldowan asserts a violation of a clearly established constitutional right, it is necessary
to examine the substantive rights underlying each of Moldowan’s remaining requests for
relief. See Baker, 443 U.S. at 140 (“The first inquiry in any § 1983 suit” is “to isolate
the precise constitutional violation with which [the defendant] is charged.”). That
Moldowan asserts claims under various constitutional provisions does not control our
inquiry. Rather, the critical question is whether the “legal norms” underlying those
claims implicate clearly established constitutional rights. See Mitchell, 472 U.S. at 528.
For that reason, we group and address Moldowan’s claims according to the conduct at
issue or the legal norms that underlie his various claims.

                    1. Counts IX, X, XI, XII — Brady Claims (Ingles)

         Moldowan asserts a number of claims against Detective Ingles under the Fourth,
Fifth, Sixth, and Fourteenth Amendments based on Ingles’ alleged failure to disclose
exculpatory evidence. In particular, Moldowan contends that Ingles was required to
disclose exculpatory statements from Burroughs, including that Burroughs recalled
seeing four African-American males standing around Fournier on the morning that she
was discovered in Detroit and that Burroughs later overheard two of those men
discussing their involvement in the assault.5

         Moldowan’s allegations, although asserted under various constitutional
provisions, present claims under Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the
Court held that “the suppression by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The question
we confront here is whether Detective Ingles’ alleged suppression of Burroughs’




         5
           Although Detective Ingles disputes whether he ever interviewed Burroughs, that dispute does
not affect our authority to consider the inherently prior, and purely legal question at issue here. While we
cannot resolve that factual dispute, the threshold issue of whether Moldowan may assert a Brady-type
claim for damages against a police officer may be resolved on interlocutory appeal.
Nos. 07-2115/2116/2117           Moldowan v. City of Warren, et al.                         Page 23


statements violated the same “legal norm” underlying the due process violation
recognized in Brady. We hold that it does.6

        Detective Ingles argues that Moldowan cannot demonstrate that the Due Process
Clause imposes on the police a clearly established obligation to disclose exculpatory
information. Superficially, that argument has some appeal. To the extent that Brady
imposes an obligation on the state to disclose exculpatory evidence to the defense, courts
consistently have determined that this duty falls squarely on the prosecutor, not the
police. See Giglio v. United States, 405 U.S. 150, 154 (1972) (“[W]hether the
nondisclosure was a result of negligence or design, it is the responsibility of the
prosecutor.”); Lindsay v. Bogle, 92 F. App’x 165, 170 (6th Cir. 2004) (stating that “the
Brady obligation applies only to prosecutors”). In Kyles v. Whitley, 514 U.S. 419
(1995), for instance, the Supreme Court explained that “the individual prosecutor,” who
“alone can know what is undisclosed, must be assigned the consequent responsibility to
gauge the likely net effect of all such evidence and make disclosure when the point of
‘reasonable probability’ is reached.” Id. at 437; see also Strickler v. Greene, 527 U.S.
263, 281 (1999) (recognizing “the special role played by the American prosecutor in the
search for truth in criminal trials”). In fact, the Supreme Court has placed the
responsibility to manage the state’s disclosure obligations solely on the prosecutor
despite acknowledging that “no one doubts that police investigators sometimes fail to
inform a prosecutor of all they know.” Kyles, 514 U.S. at 438.

        This well-established rule, however, does not resolve whether the police have a
concomitant or derivative duty under the constitution to turn potentially exculpatory
material over to the prosecutor. In fact, Moldowan acknowledges that the duty to
“disclose” exculpatory materials to defense counsel rests on the prosecutor alone, but
nevertheless maintains that the police have an analogous, but just as constitutionally-
significant, obligation to turn such materials over to the prosecutor’s office. Underlying
Moldowan’s argument is the valid concern that, if the police have no constitutional

        6
           However, we reject Moldowan’s attempt to construe these claims as substantive due process
claims, as they more properly are understood as procedural due process violations. See Brady, 373 U.S.
at 87; Graham, 490 U.S. at 395.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 24


obligation in this regard, then the state could sidestep its constitutionally-mandated
disclosure obligations by maintaining an unstated, but nevertheless pervasive, wall of
separation between the prosecutor’s office and the police with regard to the existence of
potentially exculpatory evidence. Ignoring the burdens that the Constitution places on
the police in this context also creates a very serious risk that police officers who conceal
or withhold evidence that falls within Brady’s ambit will never be held accountable for
the independent “deprivation of any rights, privileges, or immunities secured by the
Constitution,” 42 U.S.C. § 1983, that their conduct causes.

        As the concurrence correctly notes, however, the Supreme Court already has
addressed the first of these concerns, at least to a certain extent, by imposing on the
prosecutor “a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437. In other
words, even though the state’s obligation under Brady is managed by the prosecutor’s
office, that obligation “applies to relevant evidence in the hands of the police, whether
the prosecutors knew about it or not, whether they suppressed it intentionally or not, and
whether the accused asked for it or not.” Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir.
2009) (citations omitted); Strickler, 527 U.S. at 280-81 (Brady “encompasses evidence
‘known only to police investigators and not to the prosecutor’” (quoting Kyles, 514 U.S.
at 438)).

        Contrary to Detective Ingles’ suggestion, however, this does not imply that the
police have no role to play in ensuring that the state complies with its obligations under
Brady, or that the police cannot commit a constitutional violation analogous to the
deprivation recognized in Brady. See Banks v. Dretke, 540 U.S. 668, 675-76 (2004)
(“When police or prosecutors conceal significant exculpatory or impeaching material in
the State’s possession, it is ordinarily incumbent on the State to set the record straight.”
(emphasis added)). On the contrary, although the prosecutor is the state’s “official
representative . . . in the prosecution of the case,” we have recognized that the police
“also play[] an active role in the prosecution.” Hilliard v. Williams, 516 F.2d 1344, 1350
(6th Cir. 1975), vacated in part, 424 U.S. 961, aff’d on remand, 540 F.2d 220 (6th Cir.
Nos. 07-2115/2116/2117              Moldowan v. City of Warren, et al.                                Page 25


1976); see also Walker v. Lockhart, 763 F.2d 942, 958 (8th Cir. 1985) (“Police are
treated as an arm of the prosecution for Brady purposes.”). Because the prosecutor’s
office generally lacks its own investigative machinery, prosecutors often are entirely
dependent on the police to turn over the fruits of their investigation. As a result of this
interdependence, the police play a different, but no less significant role in the state’s
“search for truth in criminal trials.” Strickler, 527 U.S. at 281.

         Because prosecutors rely so heavily on the police and other law enforcement
authorities, the obligations imposed under Brady would be largely ineffective if those
other members of the prosecution team had no responsibility to inform the prosecutor
about evidence that undermined the state’s preferred theory of the crime. As a practical
matter then, Brady’s ultimate concern for ensuring that criminal defendants receive a
“fundamentally fair” trial, see United States v. Bagley, 473 U.S. 667, 675 (1985)
(explaining that the “purpose” of the Brady rule is “to ensure that a miscarriage of justice
does not occur”), demands that “Brady’s protections also extend to actions of other law
enforcement officers such as investigating officers,” White v. McKinley, 519 F.3d 806,
814 (8th Cir. 2008). Although this Court has not yet directly addressed the issue, a
number of our decisions support this conclusion. See, e.g., Gregory, 444 F.3d at 743-45
(dismissing appeal from denial of qualified immunity in the context of Brady claims
against police officers and forensic medical examiners)7; Spurlock v. Satterfield, 167

         7
            The concurrence argues that our citation to Gregory is misplaced because we “decided Gregory
emphatically on jurisdictional grounds.” Slip op. at 65. In Gregory, we considered, among other things,
an appeal from the district court’s denial of qualified immunity in the context of Brady claims brought
against a police officer with the Louisville Division of Police and an examiner with the Kentucky State
Police Crime Laboratory. The defendant officer argued that the plaintiff had failed to established that the
officer “was aware of the [evidence] or that the [evidence] was, in fact, exculpatory.” 444 F.3d at 743.
Likewise, the defendant examiner argued that “her ‘failure to disclose,’ if any, amounts only to
negligence.” Id. at 744. We dismissed both claims on the grounds that we lacked jurisdiction to consider
those disputed issues of fact on interlocutory appeal. Id. at 743-44 (citing Johnson, 515 U.S. at 313). In
that limited sense, the concurrence is right that our holding in Gregory is of limited precedential value.
But it is not entirely irrelevant. Under Williams v. Mehra, our initial inquiry in any qualified immunity
case must be to determine whether the plaintiff’s claims implicate a clearly established constitutional right.
See 186 F.3d at 691. Consequently, before the Gregory court even considered its jurisdiction to address
those factual disputes, it must have been satisfied that Brady could support the plaintiff’s claims. The court
undoubtedly had jurisdiction to consider whether this “threshold” requirement had been satisfied. See
Saucier, 533 U.S. at 201. If the Gregory court believed that Brady could not support the plaintiff’s claims
against the officer and examiner, it certainly would not have sent the case back to the district court for
further proceedings on those claims. However, because our decision in Gregory did not address the issue,
or perhaps because the issue had been waived, we acknowledge that Gregory offers limited support. For
all of these criticisms, however, the concurrence can point to no case in this circuit rejecting the notion that
the Constitution imposes on the police a duty analogous to that recognized in Brady.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 26


F.3d 995, 1005-06 (6th Cir. 1999) (relying on Brady to conclude that plaintiff had raised
claims against a police officer that implicated clearly established constitutional rights);
cf. Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 361 (6th Cir. 1997) (finding
sheriff’s department’s failure to turn patently exculpatory information over to the
prosecutor resulted in “substantial injustice” which warranted a new trial).

       In addition to this practical justification, it is evident that the constitutional
principles recognized in Brady apply just as equally to similar conduct on the part of
police, and thus support our recognizing that the police can commit a constitutional
deprivation analogous to that recognized in Brady by withholding or suppressing
exculpatory material. “Under the Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing notions of fundamental fairness.”
California v. Trombetta, 467 U.S. 479, 485 (1984); Lisenba v. California, 314 U.S. 219,
236 (1941) (“The aim of the requirement of due process is not to exclude presumptively
false evidence, but to prevent fundamental unfairness in the use of evidence, whether
true or false.”). The “overriding concern” in defining the contours of the state’s
disclosure obligations under the Due Process Clause, therefore, must be “the justice of
the finding of guilt.” United States v. Agurs, 427 U.S. 97, 112 (1976). As far as the
Constitution is concerned, a criminal defendant is equally deprived of his or her due
process rights when the police rather than the prosecutor suppresses exculpatory
evidence because, in either case, the impact on the fundamental fairness of the
defendant’s trial is the same.

       Although the prosecutor undoubtedly plays a “special role” in “the search for
truth in criminal trials,” Strickler, 527 U.S. at 281, the police also play a unique and
significant role in that process, and thus also are bound by the government’s
constitutional obligation to “ensure that a miscarriage of justice does not occur,” Bagley,
473 U.S. at 675. As the Fourth Circuit explained persuasively in Barbee v. Warden,
Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964):

       The police are also part of the prosecution, and the taint on the trial is no
       less if they, rather than the State’s Attorney, were guilty of the
       nondisclosure . . . The duty to disclose is that of the state, which
Nos. 07-2115/2116/2117               Moldowan v. City of Warren, et al.                                Page 27


         ordinarily acts through the prosecuting attorney; but if he too is the
         victim of police suppression of the material information, the state’s
         failure is not on that account excused.
Id. at 846. In other words, because the police are just as much an arm of the state as the
prosecutor, the police inflict the same constitutional injury when they hide, conceal,
destroy, withhold, or even fail to disclose material exculpatory information.8

         While the concurrence is correct that the Supreme Court has held that,
technically speaking, the government’s “disclosure” obligations fall to and must be
managed by the prosecutor, Kyles, 514 U.S. at 437 (emphasis added), that argument
overlooks that the Court’s decisions also make clear that the constitutional concerns
underlying Brady reach more broadly to preclude other governmental “authorities” from
making a “calculated effort to circumvent the disclosure requirements established by
Brady [] and its progeny,” Trombetta, 467 U.S. at 488. As Judge Murnaghan succinctly
explained in his dissent in Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc):

         Of course, the manner in which prosecutors and police officers comply
         with Brady is different, reflecting their different functions in the criminal
         justice system. Police officers do not disclose evidence to criminal
         defendants directly. Instead, the police accumulate evidence and then
         ministerially deliver it to the prosecutor. The prosecutor then makes a
         discretionary legal judgment about whether the evidence is material and
         exculpatory, such that Brady compels its disclosure to the defendant.
Id. at 664. Although the police and prosecutor play different roles in this process, “[t]his
functional differentiation . . . should not obscure the fact that Brady creates a singular
constitutional duty, which prosecutors and police officers are capable of breaching in
factually different ways.” Id.

         In addition to these practical justifications and constitutional considerations, the
police’s obligation to turn over material and exculpatory evidence also follows
inexorably from the Supreme Court’s recognition that the police have a constitutional
duty to preserve such evidence. In Trombetta, the Supreme Court observed that

         8
           Although the concurrence acknowledges that the fundamental concern of the Due Process Clause
is to ensure “the fairness of criminal trials,” slip op. at 62, it loses sight of the fact that the conduct of the
police can jeopardize the fairness of a criminal trial just as much as that of the prosecutor.
Nos. 07-2115/2116/2117            Moldowan v. City of Warren, et al.                                Page 28


“[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty
must be limited to evidence that might be expected to play a significant role in the
suspect’s defense.” 467 U.S. at 488. The Court recognized that same duty in Arizona
v. Youngblood, 488 U.S. 51 (1988), confirming that the Constitution imposes at least a
limited “obligation” on the police “to preserve evidence . . . [that] could form the basis
for exonerating the defendant.” Id. at 58. If the Constitution imposes a “duty” and
“obligation” on the police to preserve such evidence, that duty, no matter how limited,
certainly must preclude the police from concealing that exact same information from the
prosecutor, the defense, and the courts. Why else would the police be required to
preserve such evidence if they had no attendant obligation to reveal its existence? Brady
and Trombetta would impose hollow obligations indeed if the Constitution did not also
preclude police officers from concealing the same evidence that they are not permitted
to destroy and that the prosecutor is required to disclose.

        The concurrence argues that the police cannot share in the state’s obligations
under Brady because “the Brady duty is uniquely tailored to prosecutors” in that it
requires the disclosure of exculpatory evidence that is constitutionally “material,” and
thus requires the exercise of “a judgment that prosecutors, not police officers, are trained
to make.”9 Slip op. at 61. This argument misses the point. We agree that determining
whether a particular piece of evidence is “material,” as defined in Bagley, 473 U.S. at
682, generally requires the exercise of legal judgment that the prosecuting attorney is
better trained, not to mention better positioned, to make. See Kyles, 514 U.S. at 437.
However, that implies only that the prosecutor should be assigned the responsibility of

        9
          In making this argument, the concurrence relies heavily on Judge Wilkinson’s concurring
opinion in Jean v. Collins, but does not even attempt to wrestle with Judge Murnaghan’s persuasive
response to that argument:
        This observation is a strawman that confuses the crucial issue. It presupposes that when
        a police officer discloses evidence to a prosecutor, the act is functionally identical to the
        discretionary legal judgment prosecutors make when disclosing evidence directly to
        criminal defendants. In reality, the two acts are incommensurable. Requiring police
        officers to disclose evidence to prosecutors does not require technical legal expertise
        because the act is essentially ministerial, not discretionary. The police officer’s duty is
        not to determine whether the evidence is material and exculpatory. His duty is simply
        to collect the evidence and to disclose all of it to the prosecutor, who then makes the
        discretionary legal judgment about its material, exculpatory attributes.
221 F.3d at 669 (Murnaghan, J., dissenting).
Nos. 07-2115/2116/2117           Moldowan v. City of Warren, et al.                         Page 29


determining what evidence ultimately should be disclosed to the defendant; it does not
imply, as our colleague suggests, that the police cannot be expected to recognize and
determine what evidence should be preserved and turned over to the prosecutor. On the
contrary, the Supreme Court already has assumed as much in concluding that the police
have a constitutionally-significant “duty” to “preserve evidence . . . that might be
expected to play a significant role in the suspect’s defense.” Trombetta, 467 U.S. at 488-
89 (holding that the police were not obliged to preserve evidence because the
“exculpatory value” of the evidence was not “apparent”). If the police can be expected
to recognize what evidence must be preserved, certainly it is not too burdensome to
demand that they simply turn that same information over to the prosecutor’s office.

        For most of the same reasons we have laid out here, virtually every other circuit
has concluded either that the police share in the state’s obligations under Brady, or that
the Constitution imposes on the police obligations analogous to those recognized in
Brady.10 See, e.g., Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999) (“One standard
police function is to provide information to the prosecutor and the courts. Thus, a police
officer sometimes may be liable if he fails to apprise the prosecutor or a judicial officer
of known exculpatory information.”); Hart v. O’Brien, 127 F.3d 424, 446-47 (5th Cir.
1997) (“[A] plaintiff states a section 1983 claim against a police officer who, after
learning of ‘patently exculpatory evidence,’ deliberately fails to disclose it to the
prosecutor.” (citation omitted)); McMillan v. Johnson, 88 F.3d 1554, 1569 (11th Cir.
1996) (“Our case law clearly established that an accused’s due process rights are
violated when the police conceal exculpatory or impeachment evidence.”) (collecting
cases); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992) (“The police
satisfy their obligations under Brady when they turn over exculpatory evidence to the
prosecutors.”); Geter v. Fortenberry, 882 F.2d 167, 171 (5th Cir. 1989) (affirming denial
of qualified immunity for police officer defendant with respect to plaintiff’s claim that
the officer failed to disclose exculpatory evidence); Jones v. City of Chicago, 856 F.2d


        10
           “[W]hile analogous decisions from our sister circuits are not binding, we have repeatedly
recognized their persuasive authority.” See Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502
F.3d 545, 553 n.6 (6th Cir. 2007).
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 30


985, 995 (7th Cir. 1988) (“Brady v. Maryland does not require the police to keep written
records of all their investigatory activities; but attempts to circumvent the rule of that
case by retaining records in clandestine files deliberately concealed from prosecutors and
defense counsel cannot be tolerated.”). As this litany of cases indicates, the courts
consistently have rejected the notion that the police have no role to play in carrying out
the state’s constitutionally-mandated obligations in this area. Although the prosecutor’s
office bears primary responsibility for carrying out the state’s actual “disclosure”
obligations under Brady, the police bear, as the Eighth Circuit has put it, an equally
important “Brady-derived” responsibility to turn over potentially exculpatory evidence
to the prosecutor’s office. White, 519 F.3d at 814. Semantic quibbles aside, there is no
doubt that the police are just as capable of depriving criminal defendants of a
fundamentally fair trial by suppressing exculpatory evidence.

       Having determined that the due process guarantees recognized in Brady also
impose an analogous or derivative obligation on the police, we next must determine
whether that obligation was “clearly established” as of the date of Detective Ingles’
alleged violation of that duty. In determining whether a right is clearly established, we
“may rely on decisions of the Supreme Court, decisions of this court and courts within
this circuit, and in limited instances, on decisions of other circuits.” Spurlock, 167 F.3d
at 1006; Ohio Civil Serv. Employees Assoc. v. Seiter, 858 F.2d 1171, 1177 (6th Cir.
1988). In evaluating the relevant case law, we must determine whether the right has
been recognized “in a more particularized, and hence more relevant, sense: The 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).
In other words, “the unlawfulness must be apparent.” Id.

       Decisions from other circuits recognizing the type of “Brady-derived” claims that
Moldowan asserts here date back as far as 1964. See Barbee, 331 F.2d at 846. In fact,
at least three circuits recognized prior to August 1990, the earliest possible date for
Detective Ingles’ involvement in the case, that this right was clearly established. See,
e.g., id.; Geter, 882 F.2d at 171; Jones, 856 F.2d at 995. Although our recognition of
Nos. 07-2115/2116/2117         Moldowan v. City of Warren, et al.                   Page 31


this type of a claim is more recent and less specific, the overwhelming number of
decisions from other circuits recognizing this type of claim satisfies us that any
reasonable police officer would know that suppressing exculpatory evidence was a
violation of the accused’s constitutional rights.

          Having determined that Moldowan’s claims against Detective Ingles implicate
a clearly established constitutional right, we next must determine whether, taking the
facts alleged by Moldowan as true, Moldowan can make out a violation of this right. At
Moldowan’s retrial, Jerry Burroughs testified that he witnessed four African-American
males standing in the street around Fournier’s body in the early morning hours of
August 9, 1990. Burroughs also testified that he witnessed one of the men kick her, and
that shortly thereafter he saw the men drive away from the scene in a light-colored van.
Burroughs also testified that he later overheard two of the men he saw standing around
Fournier’s body talking about the incident and claiming involvement in the assault.
Burroughs testified that he reported this information to a police officer, but the officer
“just acted like I [was] saying nothing.” (J.A. 2157.) Although Burroughs could not
remember the name of the officer with whom he spoke, Moldowan claims that it must
have been Detective Ingles. It is without question that Detective Ingles did not report
any such information to the Macomb County Prosecutor, or to defense counsel for that
matter.

          Construing these facts in the light most favorable to Moldowan, it is evident that
Burroughs’ statements cast serious doubt on, if not entirely discredit, Fournier’s
identification of Moldowan as one of her attackers, an issue that undoubtedly was one
of the most important elements of the state’s case. Burroughs’ statements thus should
have been disclosed to the defense as they undoubtedly “would tend to exculpate”
Moldowan. See Brady, 373 U.S. at 88.

          Defendants contend that, even if we were to conclude that the legal norms
underlying Brady can support an analogous or derivative claim against a police officer,
Moldowan cannot prevail on the facts presented here because he cannot show that
Detective Ingles withheld these statements in “bad faith.” In particular, Defendants
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                             Page 32


argue that, in Davidson v. Cannon, 474 U.S. 344 (1986), and Daniels v. Williams, 474
U.S. 327 (1986), the Supreme Court held that the Due Process Clause is not “triggered
by lack of due care” by government officials, Daniels, 474 U.S. at 333, and thus “where
a government official is merely negligent in causing the injury, no procedure for
compensation is constitutionally required,” Davidson, 474 U.S. at 347.

         Although this Court has not addressed the issue directly, see Gregory, 444 F.3d
at 743-44, at least two of our sister circuits have suggested that, in order to assert such
a claim against the police, at least under § 1983, a defendant-turned-plaintiff must
demonstrate that the police acted in “bad faith.” See, e.g., Porter v. White, 483 F.3d
1294 (11th Cir. 2007) (“hold[ing] that the no-fault standard of care Brady imposes on
prosecutors in the criminal or habeas context has no place in a § 1983 damages action
against a law enforcement official in which the plaintiff alleges a violation of due
process”); Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) (“[T]he recovery of
§ 1983 damages requires proof that a law enforcement officer other than the prosecutor
intended to deprive the defendant of a fair trial.”). At least one other circuit, however,
previously held that no such showing of bad faith is required:

         Failure of the police to reveal such material evidence in their possession
         is equally harmful to a defendant whether the information is purposely,
         or negligently, withheld. And it makes no difference if the withholding
         is by officials other than the prosecutor. The police are also part of the
         prosecution, and the taint on the trial is no less if they, rather than the
         State’s Attorney, were guilty of the nondisclosure. If the police allow the
         State’s Attorney to produce evidence pointing to guilt without informing
         him of other evidence in their possession which contradicts this
         inference, state officers are practicing deception not only on the State’s
         Attorney but on the court and the defendant. ‘The cruelest lies are often
         told in silence.’ If the police silence as to the existence of the reports
         resulted from negligence rather than guile, the deception is no less
         damaging.
Barbee, 331 F.2d at 846.11

         11
             It is unclear whether the rule announced in Barbee remains good law after Jean v. Collins.
Because the en banc Fourth Circuit was “equally divided” in Jean, it issued a per curiam order affirming
the judgment of the district court without opinion. See 221 F.3d at 658. Although Judge Wilkinson’s
concurring opinion ignores the holding of Barbee and asserts that bad faith is required in this context, see
id. at 660 (“[I]t would be impermissible to hold the police liable for due process violations under § 1983
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                              Page 33


         The question we have before us is a difficult one, with, as the concurrence
rightfully points out, significant policy implications on both sides. But our job is not to
craft the law to fit our policy views, it is to determine what the law requires.
Notwithstanding the concurrence’s argument to the contrary, the cases in this area
clearly establish that police actions taken in bad faith are not the only species of police
conduct that can deprive criminal defendants of the due process guaranteed by the
Constitution. We acknowledge that a number of courts, including the Supreme Court,
have held that a showing of bad faith is required to prevail on a claim that the police
deprived a defendant of due process by concealing or withholding evidence that is only
“potentially useful.” But, where the police are aware that the evidence in their
possession is exculpatory, the Supreme Court’s decisions in this area indicate that the
police have an absolute duty to preserve and disclose that information. The critical issue
in determining whether bad faith is required thus is not whether the evidence is withheld
by the prosecutor or the police, but rather whether the exculpatory value of the evidence
is “apparent” or not.

         In Agurs, for instance, the Court held that prosecutors are required to turn over
to the defense evidence that was “so clearly supportive of a claim of innocence that it
gives the prosecution notice of a duty to produce” even without a defense request. 427
U.S. at 107. The Court explained that the constitutional violation arose not because of
the title of the government official that withheld the evidence, but rather because the
failure to turn over such evidence “deprived the defendant of a fair trial.” Id. at 108. As
the Court explained: “Nor do we believe the constitutional obligation is measured by
the moral culpability, or the willfulness, of the prosecutor. If the suppression of
evidence results in constitutional error, it is because of the character of the evidence, not
the character of the prosecutor.” Id. at 110.

         In other words, the critical issue in determining whether government conduct
deprived a criminal defendant of a fair trial is the nature of the evidence that was



where they have acted in good faith.”), that position did not garner the support of a majority of the en banc
Fourth Circuit.
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                     Page 34


withheld; it emphatically is not the mental state of the government official who
suppressed the evidence. That the due process inquiry is concerned with the nature of
the evidence rather than the good or bad faith of the state actor reflects, as the Court
emphasized, the Due Process Clause’s “overriding concern with the justice of the finding
of guilt.” Id. at 112; accord Napue v. Illinois, 360 U.S. 264, 270 (1959) (holding that
the knowing use of perjured testimony violates the Due Process Clause even when “the
district attorney’s silence was not the result of guile or a desire to prejudice . . . for its
impact was the same, preventing, as it did, a trial that could in any real sense be termed
fair” (citation omitted) (emphasis added)). That same reasoning is reflected in Brady’s
holding that “the suppression by the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87 (emphasis
added). Although both Agurs and Brady involved due process violations by the
prosecutor rather than the police, the critical lesson of those decisions is that the
constitutional violation arose because of the nature of the evidence, not the state of mind
of the state actor. See Strickler, 527 U.S. at 288 (“[U]nder Brady an inadvertent
nondisclosure has the same impact on the fairness of the proceedings as deliberate
concealment.”).

        Notwithstanding the reasoning underlying Agurs and Brady, the concurrence
contends that Moldowan’s due process claim should be evaluated under the “bad-faith
standard” set forth in Arizona v. Youngblood, which the concurrence insists “requires
proof that the officer engaged in ‘a conscious effort to suppress exculpatory evidence.’”
Slip op. at 66 (quoting Trombetta, 467 U.S. at 488). This heightened standard is
justified, the concurrence argues, because extending Brady’s “absolute duty” to law
enforcement officers who do not enjoy absolute immunity will “unleash” a flood of
lawsuits “that will be very difficult to stop short of trial.” Slip op. at 63. We
respectfully disagree.

        However, Youngblood does not impose a bad faith requirement on any and all
due process claims brought against police officers. On the contrary, just like Brady and
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                    Page 35


Agurs, the Court’s decision in Youngblood confirms that where “material exculpable
evidence” is concerned, the mental state of the government official withholding that
evidence is not relevant to determining whether a due process violation has occurred.
488 U.S. at 57-58. In discussing the scope of the police’s duty to preserve evidence, the
Court contrasted the state’s absolute obligation to disclose “material exculpable
evidence” with its much more limited obligation to preserve “potentially useful
evidence,” holding that a showing of bad faith was required to show a constitutional
violation only in the latter context. Id. at 57-58. Although, as the concurrence correctly
points out, the Court rejected the bad-faith requirement in the context of due process
guarantees “as interpreted in Brady,” that turn of phrase does not bear the weight that our
colleague places on it. Far from suggesting that the difference in the applicable
standards turns on the job title of the government official who destroyed or concealed
the evidence in question, the Court’s decision in Youngblood actually explained:

        Part of the reason for the difference in treatment is found in the
        observation made by the Court in Trombetta, that “[w]henever potentially
        exculpatory evidence is permanently lost, courts face the treacherous task
        of divining the import of materials whose contents are unknown and, very
        often, disputed.” Part of it stems from our unwillingness to read the
        “fundamental fairness” requirement of the Due Process Clause, as
        imposing on the police an undifferentiated and absolute duty to retain and
        to preserve all material that might be of conceivable evidentiary
        significance in a particular prosecution. We think that requiring a
        defendant to show bad faith on the part of the police both limits the extent
        of the police’s obligation to preserve evidence to reasonable bounds and
        confines it to that class of cases where the interests of justice most clearly
        require it, i.e., those cases in which the police themselves by their conduct
        indicate that the evidence could form a basis for exonerating the
        defendant.
Id. at 57-58 (citations omitted). In other words, Youngblood confirms that the “reason
for the difference” in the applicable standards is the nature of the evidence at issue, not
the title of the government official or whether the challenged conduct relates to the
state’s failure to disclose evidence rather that its failure to preserve it. See Illinois v.
Fisher, 540 U.S. 544, 549 (2004) (explaining that “the applicability of the bad-faith
requirement in Youngblood depended . . . on the distinction between ‘materially
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                              Page 36


exculpatory’ evidence and ‘potentially useful’ evidence”); United States v. Wright, 260
F.3d 568, 570 (6th Cir. 2001) (“Separate tests are applied to determine whether the
government’s failure to preserve evidence rises to the level of a due process violation in
cases where material exculpatory evidence is not accessible versus cases where
‘potentially useful’ evidence is not accessible.”).

         Unlike the destruction or concealment of merely “potentially useful” evidence,
the loss of “materially exculpatory” evidence directly threatens the fundamental fairness
of a criminal trial, and thus undoubtedly implicates the Due Process Clause. In “that
class of cases,” Youngblood says, “the interests of justice” simply impose a higher
burden on state actors, including the police. 488 U.S. at 58. That is true regardless of
whether the defendant is asserting a failure-to-preserve or a failure-to-disclose claim, and
regardless of whether the claim is being asserted against the prosecutor or the police.
See United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008) (stating, in the context
of a claim against a police officer, that “[t]he failure to preserve material exculpatory
evidence violates the defendant’s right to due process regardless of whether the
government acted in bad faith”); Wright, 260 F.3d at 570 (stating, in the context of a
claim against a fire investigator, that “[t]he destruction of material exculpatory evidence
violates due process regardless of whether the government acted in bad faith”).

         Indeed, the only way to make sense of this critical passage from Youngblood is
to read the phrase “the police’s obligation” in the last sentence as referring to the
statement from the previous sentence regarding the police’s “undifferentiated and
absolute duty.” When given a proper reading, Youngblood thus confirms that the police
have “an undifferentiated and absolute duty to retain and preserve” certain evidence, but
that “[absolute] obligation” is limited to “those cases in which the police themselves by
their conduct indicate that the evidence could form a basis for exonerating the
defendant.”12


         12
            Our reading of Youngblood also finds support in the case law of our sister circuits. In
Olszewski v. Spencer, 466 F.3d 47 (1st Cir. 2006), for instance, the First Circuit declined to resolve this
issue, but observed that “[a] variety of other circuits have considered the relationship between Trombetta
and Youngblood and have concluded that (1) the destruction of ‘apparently exculpatory’ evidence does not
require a showing of bad faith but that (2) if the evidence is only ‘potentially useful,’ a bad-faith showing
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                              Page 37


         Simply put, where the evidence withheld or destroyed by the police falls into that
more serious category, the defendant is not required to make any further showing
regarding the mental state of the police. See Wright, 260 F.3d at 573 (Gilman, J.,
concurring) (“Thus, the first part of the Jobson test — good or bad faith — should be
irrelevant once the last two parts of the Jobson test are shown, because the Supreme
Court has expressly held that the determination of good or bad faith is irrelevant for
materially exculpatory evidence.”). As the Court explained in Youngblood, “[t]he
presence or absence of bad faith by the police for purposes of the Due Process Clause
must necessarily turn on the police’s knowledge of the exculpatory value of the evidence
at the time it was lost or destroyed.” Id. at 56 n.*.

         By overlooking this critical distinction, the concurrence misinterprets the nature
of the due process inquiry required under these circumstances. In Trombetta, the
Supreme Court suggested, as explained above, that government “authorities” run afoul
of the Constitution when they make “a calculated effort to circumvent the disclosure
requirements established by Brady v. Maryland and its progeny.” 467 U.S. at 488. The
Court also observed in that case that “[t]he record contains no allegation of official
animus towards respondents or of a conscious effort to suppress exculpatory evidence.”
Id. Emphasizing these scattered statements, the concurrence argues that a § 1983
plaintiff asserting any due process claim against the police is required to demonstrate
bad faith. If the concurrence means by “bad faith” anything more than that the police
were aware of the exculpatory value of the evidence at issue, however, then we
respectfully disagree.




is required.” Id. at 56 (citing United States v. Moore, 452 F.3d 382, 388 (5th Cir. 2006) (“impermissibly
withheld evidence must be either (1) material and exculpatory or (2) only potentially useful, in
combination with a showing of bad faith on the part of the government”); United States v. Estrada, 453
F.3d 1208, 1212-13 (9th Cir. 2006) (only requiring a showing of bad faith when the evidence is
“potentially exculpatory, as opposed to apparently exculpatory”); Bullock v. Carver, 297 F.3d 1036, 1056
(10th Cir. 2002) (“A defendant can obtain relief under the Due Process Clause when he can show that a
police department destroyed evidence with ‘an exculpatory value that was apparent before [it] was
destroyed.’ . . . Where, however, the police only failed to preserve ‘potentially useful’ evidence that might
have been exculpatory, a defendant must prove that the police acted in bad faith by destroying the
evidence.” (internal citations omitted)). Although the decisions of the Fifth, Ninth, and Tenth Circuits are
not binding, they lend strong support to our interpretation of this passage from Youngblood.
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                               Page 38


         What the concurrence overlooks is that Trombetta involved evidence that was
only potentially useful to the defense, not evidence that was demonstrably exculpatory.13
Id. at 489 (concluding that the evidence in question did not satisfy the “materiality”
requirement because its “exculpatory value” was not “apparent before the evidence was
destroyed”); see also Youngblood, 488 U.S. at 60 (Stevens, J., concurring) (“In
Trombetta, this Court found no due process violation because ‘the chances [were]
extremely low that preserved [breath] samples would have been exculpatory.’” (quoting
Trombetta, 467 U.S. at 489) (alterations in original)). In fact, the Court’s decision in
Trombetta even makes clear that the “constitutional materiality” of the withheld
evidence simply is “more important[]” than whether the police acted in good or bad
faith. 467 U.S. at 488; see also Youngblood, 488 U.S. at 65 (Blackmun, J., dissenting)
(“The determination in Trombetta that the prosecution acted in good faith and according
to normal practice merely prefaced the primary inquiry, which centers on the
‘constitutional materiality’ of the evidence itself.”).

         The policy risks imagined by the concurrence also stem from this fundamental
misunderstanding of the “absolute” nature of the Brady obligation.14 In Bagley, the
Court explained that “the prosecutor is not required to deliver his entire file to defense
counsel, but only to disclose evidence favorable to the accused that, if suppressed, would
deprive the defendant of a fair trial.” 473 U.S. at 675; see also Agurs, 427 U.S. at 108
(“But to reiterate a critical point, the prosecutor will not have violated his constitutional
duty of disclosure unless his omission is of sufficient significance to result in the denial
of the defendant’s right to a fair trial.”). In other words, the Due Process Clause imposes



         13
            Even the decisions from the Eighth Circuit on which the concurrence relies involved evidence
that was only potentially useful. See White, 519 F.3d at 814 (“Brady’s protections also extend to actions
of other law enforcement officers such as investigating officers. However, an investigating officer’s failure
to preserve evidence potentially useful to the accused or their [sic] failure to disclose such evidence does
not constitute a denial of due process in the absence of bad faith.”); Villasana, 368 F.3d at 979 (observing
that the documents at issue “had neither exculpatory nor impeachment value”).
         14
             We also are highly skeptical of the concurrence’s dire warnings that rejecting the bad-faith
standard in this context will increase significantly the number of lawsuits against the police given that this
circuit already has rejected the notion that bad faith is required to assert other due process claims against
the police, including claims alleging that the police failed to preserve material exculpatory evidence. See
Branch, 537 F.3d at 589; Wright, 260 F.3d at 570.
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                               Page 39


an “absolute duty” on the prosecutor only with regard to certain evidence, i.e. “material
exculpatory evidence.” See Youngblood, 488 U.S. at 57.

         The central lesson of all of these cases is that the critical factor in determining
whether the state’s obligation is “absolute” turns on the nature of the evidence at issue,
not who destroyed or suppressed the evidence. The justification for imposing an
absolute duty where material and exculpatory evidence is at issue is clear enough: the
failure to preserve or disclose such evidence directly threatens the “fundamental
fairness” of a defendant’s criminal trial. See Youngblood, 488 U.S. at 58; Trombetta,
467 U.S. at 485; Lisenba, 314 U.S. at 236. Because that concern for fundamental
fairness is just as strong where a defendant claims that the police destroyed or
suppressed material evidence, see Branch, 537 F.3d at 589, there is no constitutionally-
supportable basis for applying a different standard and requiring courts to inquire into
the mental state of the police.

         The only difference in the requisite inquiry is that, where the police are
concerned, the “exculpatory value” of the evidence must be “apparent.”15 Trombetta,
467 U.S. at 489. This additional burden, however, merely reflects that materiality is a
legal question that the police are not trained to make, and thereby accounts for the
practical concern that the police cannot be held accountable for failing to divine the
materiality of every possible scrap of evidence.16 See Youngblood, 488 U.S. at 58. It

         15
           In Youngblood, the Court suggested that this additional burden was satisfied where “the police
themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.”
488 U.S. at 58.
         16
            To whatever limited extent our colleague’s policy concerns are justified, we think that the
ultimate result is not that the police will be held liable under § 1983 more often, but rather that the police
simply will opt to turn over more information to the prosecutor’s office in an attempt to minimize their
potential exposure to such suits. See Agurs, 427 U.S. at 108 (“Because we are dealing with an inevitably
imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately
until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of
disclosure.”). Although policy considerations do not factor into our decision, we note that this is an
outcome that should be encouraged given that prosecutors, not the police, should be making the decision
about what evidence must be disclosed to the defense. See United States v. Leon, 468 U.S. 897, 900-901
(1984) (recognizing overarching “goal” of establishing “procedures under which criminal defendants are
‘acquitted or convicted on the basis of all the evidence which exposes the truth’” (quoting Alderman v.
United States, 394 U.S. 165, 175 (1969)). After considering both perspectives, we conclude that the policy
considerations favor our approach because providing prosecutors a fuller picture of the evidence in any
given case will allow them to make more informed decisions about whether to disclose or withhold a
particular piece of evidence, which undoubtedly is a goal that should be encouraged. See Kyles, 514 U.S.
at 439 (“This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose
Nos. 07-2115/2116/2117              Moldowan v. City of Warren, et al.                               Page 40


does not imply, however, that the police are entirely shielded from liability unless a
defendant shows “bad faith.” Where the exculpatory value of a piece of evidence is
“apparent,” the police have an unwavering constitutional duty to preserve and ultimately
disclose that evidence.17 The failure to fulfill that obligation constitutes a due process
violation, regardless of the whether a criminal defendant or § 1983 plaintiff can show
that the evidence was destroyed or concealed in “bad faith.” The reason no further
showing of animus or bad faith is required is that, where the police have in their
possession evidence that they know or should know “might be expected to play a
significant role in the suspect’s defense,” Trombetta, 467 U.S. at 488, the destruction or
concealment of that evidence can never be done “in good faith and in accord with their
normal practice,” Killian v. United States, 368 U.S. 231, 242 (1961). Consequently,
requiring a criminal defendant or § 1983 plaintiff to show a “conscious” or “calculated”
effort to suppress such evidence would be superfluous.18

         In any event, even if we were inclined to believe that bad faith was required, we
still would not conclude that Detective Ingles is entitled to summary judgment. Because
we must read the record in the light most favorable to Moldowan, we conclude that
Burroughs’ testimony, taken as a whole, provides sufficient evidence for Moldowan’s
claims to survive summary judgment because a jury could reasonably conclude that
Detective Ingles acted in bad faith. Although there is no direct evidence that Detective



a favorable piece of evidence. This is as it should be.” (citation omitted)).
         17
            Contrary to the concurrence’s dire predictions, imposing this obligation on the police does not
create a significant, or even additional, burden. On the contrary, the Court already has concluded that it
is reasonable to expect that the police can recognize and preserve evidence that “might be expected to play
a significant role in the suspect’s defense.” Trombetta, 467 U.S. at 488. Asking the police simply to
disclose that same evidence to the prosecutor is no great burden.
         18
             Nor is there any justification for imposing a higher burden because Moldowan asserts his due
process claim in the § 1983 context. See Parratt v. Taylor, 451 U.S. 527, 534 (1981) (“Nothing in the
language of § 1983 . . . limits the statute solely to intentional deprivations of constitutional rights.”); see
also id. at 535 (“[Section] 1983 affords a civil remedy for deprivations of federally protected rights . . .
without any express requirement of a particular state of mind.”). Although the Court’s decision in Daniels
overruled other aspects of Parratt, it expressly left undisturbed Parratt’s holding as to § 1983. See
Daniels, 474 U.S. at 329-30 (“In Parratt v. Taylor, we granted certiorari . . . to decide whether mere
negligence will support a claim for relief under § 1983. . . . We concluded that § 1983, unlike its criminal
counterpart, 18 U.S.C. § 242, contains no state-of-mind requirement independent of that necessary to state
a violation of the underlying constitutional right. We adhere to that conclusion.” (internal quotations and
citations omitted)).
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 41


Ingles acted intentionally in withholding these exculpatory statements, Burroughs’
testimony, at least when viewed in the light most favorable to Moldowan, provides
sufficient evidence for Moldowan’s claim to survive summary judgment. Despite
Detective Ingles’ insistence to the contrary, we lack the jurisdiction to consider his claim
that Burroughs never made any such statements to the police. See Gregory, 444 F.3d at
744-45 (“By arguing that the evidence establishes at most a negligent performance of
her duties, [defendant] is arguing disputed issues of fact to this Court. We cannot
entertain [defendant’s] arguments going to disputed issues of material fact on this
interlocutory appeal.”).

         Detective Ingles also suggests that Moldowan cannot prevail on his Brady
claims because he cannot demonstrate prejudice. See Strickler, 527 U.S. 263, 281
(1999) (“[S]trictly speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the suppressed
evidence would have produced a different verdict.”). That issue, however, also involves
disputed issues of fact which are beyond our reach at this juncture. Johnson, 515 U.S.
at 313-18; Gregory, 444 F.3d at 744.

                 2. Counts XIII, XIV, and XV — Perjury (Ingles)

        Moldowan also asserts claims against Detective Ingles under the Fifth, Sixth, and
Fourteenth Amendments based on Moldowan’s allegation that, during the first trial,
Ingles “committed perjury by testifying that he had prepared statements regarding any
evidence that was relevant to the case, when, in fact, he had failed to reduce Mr.
Burroughs[’] exculpatory statement to a written report.” (J.A. 293.) Detective Ingles
responds that he is entitled to absolute immunity for any testimony he offered at trial.
We agree.

        Although government officials enjoy only qualified immunity as to their pretrial
conduct, “all witnesses — police officers as well as lay witness — are absolutely
immune from civil liability based on their trial testimony in judicial proceedings.”
Briscoe, 460 U.S. at 328. A witness is entitled to testimonial immunity “no matter how
egregious or perjurious that testimony was alleged to have been.” Spurlock, 167 F.3d
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                  Page 42


at 1001. Moreover, “the mere fact that plaintiffs may allege a conspiracy to render false
testimony, as opposed to simply alleging that one person testified falsely at trial, does
not waive absolute testimonial immunity.” Id. Accordingly, Detective Ingles is entitled
to absolute immunity for the testimony he offered at trial. That protection, however,
does not extend to Ingles’ non-testimonial conduct, “despite any connection these acts
might have to later testimony.” Gregory, 444 F.3d at 739.

       In his complaint, as well before this Court, Moldowan asserts that Detective
Ingles cannot assert absolute testimonial immunity because he is the “complaining
witness.” Although there is a well-established exception to the doctrine of absolute
testimonial immunity “insofar as [an official] performed the function of a complaining
witness,” Kalina v. Fletcher, 522 U.S. 118, 131 (1997); see also Malley v. Briggs, 475
U.S. 335, 340-41 (1986), that exception does not extend to testimony delivered at trial.
See Vakilian, 335 F.3d at 516 (distinguishing between an officer’s role as a “complaining
witness” and a “testifying witness”); Spurlock, 167 F.3d at 1003-04 (distinguishing
between testimonial and pre-trial conduct). As with any witness, police officers enjoy
absolute immunity for any testimony delivered “at adversarial judicial proceedings.”
Gregory, 444 F.3d at 738.

       Because Moldowan’s perjury claims are based entirely on Detective Ingles’ trial
testimony rather than conduct related to his role as the “complaining witness,” Ingles is
entitled to absolute immunity. This is true regardless of whether he previously signed
the arrest warrant as the complaining witness. Detective Ingles therefore is entitled to
summary judgment as to Counts XIII, XIV, and XV.

                3. Count XXXI — Malicious Prosecution (Ingles)

       In Count XXXI, Moldowan asserts a state law claim against Detective Ingles for
malicious prosecution. Under Michigan law, in order to state a prima facie case of
malicious prosecution, Moldowan “must prove: 1. Prior proceedings terminated in favor
of the present plaintiff; 2. Absence of probable cause for those proceedings; 3. Malice,
defined as a purpose other than that of securing the proper adjudication of the claim; and
4. A special injury that flows directly from the prior proceedings.” Payton v. City of
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 43


Detroit, 536 N.W.2d 233, 242 (Mich. Ct. App. 1995) (citing Young v. Motor City
Apartments Ltd., 350 N.W.2d 790, 792 (Mich. Ct. App. 1984)). Because Moldowan’s
2003 re-trial obviously terminated in his favor, the first element is satisfied.

       As to the issue of probable cause, consideration of that element generally
involves factual disputes that extend beyond the scope of our jurisdiction on
interlocutory appeal. The Michigan Court of Appeals, however, has made clear that, as
a matter of law, the “[f]ailure to include all exculpatory facts is not adequate to sustain
a suit for malicious prosecution.” Payton, 536 N.W.2d at 242. Nevertheless, because
“‘[a]ctions for malicious prosecution are regarded by law with jealousy,’” Roblyer v.
Hoyt, 72 N.W.2d 126, 128 (Mich. 1955) (quoting Van Sant v. American Express Co.,
158 F.2d 924, 931 (3d Cir. 1946)), Michigan courts have held that “‘the only situation
in which an action for malicious prosecution would properly lie is where a police officer
knowingly swears to false facts in a complaint, without which there is no probable
cause.’” King v. Arbic, 406 N.W.2d 852, 858 (Mich. Ct. App. 1987) (quoting Belt v.
Ritter, 171 N.W.2d 581, 586 (Mich Ct. App. 1969)).

       In asserting his malicious prosecution claim against Detective Ingles, Moldowan
alleges only that Ingles “failed, as the complaining witness, to make a full and fair
disclosure of the material facts and allowed the prosecution . . . to continue without
probable cause.” (J.A. 313.) Although Moldowan makes a vague and conclusory
allegation that the criminal complaint against him was “based on the . . . false evidence
provided by Defendant Ingles,” he never identifies any such “false evidence.” (J.A.
314.) Moldowan’s only substantive allegation in support of this claim is that Detective
Ingles “deliberately failed to convey [Burroughs’ statements] to the Macomb County
Prosecutor.” (J.A. 313.) Consequently, even accepting all of Moldowan’s allegations
as true, we conclude that, under Payton, a claim for malicious prosecution does not lie
under these circumstances.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 44


        4. Counts XXII and XXIII — Destruction of Evidence (Schultz)

        In Counts XXII and XXIII, Moldowan asserts statutory and constitutional claims
against Officer Schultz based on the destruction of evidence introduced at Moldowan’s
first trial. It is undisputed that this evidence was destroyed in contravention of the trial
court’s explicit order that all such evidence was to be preserved “from this date forward
until further order of the Circuit Court, Michigan Court of Appeals, or Michigan
Supreme Court.” (J.A. 2613.)

        In Count XXIII, Moldowan asserts a statutory claim under 18 U.S.C. § 1503.
That provision, however, provides criminal penalties for obstruction of justice through
corrupt conduct and threats of force; it does not provide a civil claim for monetary
damages. Nor does violation of that provision give rise to a claim for damages under
42 U.S.C. § 1983 because it does not contain explicit “rights-creating language.”
Johnson v. City of Detroit, 446 F.3d 614, 621 (6th Cir. 2006) (holding that “statutory
language that merely ‘benefits’ putative plaintiffs without specific rights-creating
language is insufficient to confer a personal federal right enforceable under § 1983”
(citing Gonzaga Univ. v. Doe, 536 U.S. 273, 282 (2002))).            Accordingly, Officer
Schultz is entitled to summary judgment as to Count XXIII.

        Moldowan’s constitutional claim in Count XXII, on the other hand, is a more
involved question. “To safeguard a defendant’s due process right to present a complete
defense, the Supreme Court has developed ‘what might loosely be called the area of
constitutionally guaranteed access to evidence.’” Wright, 260 F.3d at 570 (quoting
Trombetta, 467 U.S. at 485). In Trombetta, for instance, the Supreme Court recognized
that the Constitution may impose a duty on the state “to preserve evidence” where such
evidence “might be expected to play a significant role in the suspect’s defense.” 467
U.S. at 488.

        Defendants again argue that, even though Trombetta recognized that the failure
to preserve evidence may give rise to a constitutional violation, summary judgment
nevertheless is warranted because Moldowan cannot demonstrate bad faith on the part
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 45


of Officer Schultz. In defining the contours of this “area of constitutionally guaranteed
access to evidence,” however, the Supreme Court has developed separate tests “to
determine whether the government’s failure to preserve evidence rises to the level of a
due process violation in cases where material exculpatory evidence is not accessible,
versus cases where [merely] ‘potentially useful’ evidence is not accessible.” Wright, 260
F.3d at 570 (citations omitted). As we explained above in regard to Moldowan’s claims
against Detective Ingles, see supra Part IV.C.1, the Supreme Court has recognized that
the state violates a suspect’s due process rights, regardless of the bad faith of the state
actor, where material exculpatory evidence is not preserved. See Trombetta, 467 U.S.
at 489. Accordingly, the more burdensome bad faith requirement does not apply where
material exculpatory evidence was lost or destroyed. See Wright, 260 F.3d at 571 (“The
destruction of material exculpatory evidence violates due process regardless of whether
the government acted in bad faith.”); see also Monzo v. Edwards, 281 F.3d 568, 580 (6th
Cir. 2002) (discussing bad faith requirement only in terms of potentially useful
evidence).

       In light of these distinct tests, Moldowan would need to demonstrate bad faith
only if the evidence at issue is merely “potentially useful.” At this stage, however, we
cannot resolve that disputed issue of fact. See Johnson, 515 U.S. at 313-18; Gregory,
444 F.3d at 744-45. Nevertheless, even assuming that the evidence at issue was
materially exculpatory, Moldowan still would be required to show that the “exculpatory
value” of the evidence was “apparent” before it was destroyed. Trombetta, 467 U.S. at
489.

       Although the record indicates that the materiality of this evidence was, or at least
should have been, apparent to Detective Ingles and other investigating officers, there is
no evidence in the record that Officer Schultz had any knowledge whatsoever about the
nature of the evidence that he destroyed. According to Officer Schultz’s undisputed
testimony, he was assigned the entirely ministerial task of sending out annual inquiries
to the detectives in charge of each case, asking whether the detective wanted the
evidence being held in the property room “held, destroyed or released.” Schultz testified
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 46


that he had no involvement in the Moldowan case, had no knowledge of what type of
evidence was being held in the property room, and was not aware of the court order
requiring that evidence from the first trial be preserved. Even read in the light most
favorable to Moldowan, there simply is no evidence that Officer Schultz had any idea
that the evidence he destroyed “could form a basis for exonerating the defendant.”
Youngblood, 488 U.S. at 58. We therefore reverse the district court’s denial of summary
judgment as to Count XXII.

      5. Counts XXIV and XXVI — Municipal Liability (City of Warren)

       Moldowan also asserts various claims against the City of Warren and the Warren
Police Department. Because the district court dismissed the Department as a defendant
and Moldowan did not appeal that ruling, only the City’s susceptibility to suit is before
us. In Count XXIV, Moldowan claims that the City is liable under § 1983 for failing to
adequately train its police officers regarding the constitutional rights of criminal
defendants. In Count XXVI, Moldowan claims that the City is liable because an
unidentified individual with “policy-making authority” ordered the destruction of
evidence in contravention of the trial court’s order.

       Because qualified immunity is unavailable in § 1983 claims against a
municipality, see Pearson, 129 S. Ct. at 822 (citing County of Sacramento v. Lewis, 523
U.S. 833, 841 n.5 (1998)), the City instead argues that Moldowan cannot establish
municipal liability on any of these claims because he cannot establish an underlying
deprivation of a constitutional right. As explained above, however, we find that
Moldowan’s failure-to-disclose claims against Detective Ingles do implicate clearly
established due process rights. Moreover, “[t]he courts recognize a systematic failure
to train police officers adequately as custom or policy which can lead to city liability.”
Gregory, 444 F.3d at 753 (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
This Court consistently has recognized that a plaintiff may establish municipal liability
by showing “a policy of inadequate training or supervision,” including “a policy of
tolerating federal rights violations [that] is unwritten but nevertheless entrenched.”
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (citing Doe v.
Nos. 07-2115/2116/2117            Moldowan v. City of Warren, et al.                            Page 47


Claiborne County, 103 F.3d 495, 508 (6th Cir. 1996)). In light of this controlling
authority, we conclude that Moldowan’s allegations, when taken as true, sufficiently
establish that the City’s alleged failure to adequately train its officers potentially violated
his constitutional rights. As the Supreme Court consistently has recognized, “a city can
be liable under § 1983 for inadequate training of its employees.” Harris, 489 U.S. at
388.

         In discussing the “failure-to-train” theory of municipal liability, the Supreme
Court explained in Harris that “the focus must be on [the] adequacy of the training
program in relation to the tasks the particular officers must perform.” Id. at 390.
Although Harris involved a city’s failure to train its officers to determine whether a
detainee required medical care, the Supreme Court spoke more broadly, noting that “it
may happen that in light of the duties assigned to specific officers or employees the need
for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need.” Id. The Court noted that this theory
of liability is an issue “on which the Courts of Appeals have all agreed,” collecting cases
in a broad array of areas. Id. at 388 & n.6.

         Because we already have determined that the police have a duty to preserve and
turn over to the prosecutor evidence that the police recognize as having exculpatory
value or where the exculpatory value of the evidence is apparent, Harris dictates that the
City has a corresponding obligation to adequately train its officers in that regard.19 See
id. at 390 (recognizing that a city may be liable for failing to provide adequate training
“in light of the duties assigned to specific officers or employees”); Brady, 187 F.3d at
114 (noting that properly handling exculpatory evidence is a “standard police function”).

         As to Count XXVI, we also must determine whether Moldowan can establish
municipal liability based on the decisions an unidentified “individual having final


         19
            The City also argues that the record does not support § 1983 liability in this case because,
unlike Gregory, the City introduced evidence demonstrating that it has developed and implemented
adequate training for its officers. Moldowan disputes the adequacy of this effort. Resolving such disputed
factual issues is beyond the scope of this interlocutory appeal.
Nos. 07-2115/2116/2117              Moldowan v. City of Warren, et al.                               Page 48


policy-making authority.”20 In Monell v. New York City Department of Social Services,
436 U.S. 658 (1978), the Supreme Court held that local government units could be held
liable under § 1983 for deprivations of federal rights, but concluded that § 1983 did not
support respondeat superior liability, reasoning that “Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy of
some nature caused a constitutional tort.” Id. at 691. In Pembaur v. City of Cincinnati,
475 U.S. 469 (1986) (plurality opinion), however, the Court clarified that this “official
policy” requirement did not preclude municipal liability “for a single decision by
municipal policymakers under appropriate circumstances.” Id. at 480.

         Although Pembaur recognized policy-maker liability, the Court made clear that
“not every decision by municipal officers automatically subjects the municipality to
§ 1983 liability.” Id. at 482. Rather, municipal liability “attaches only where the
decisionmaker possesses final authority to establish municipal policy with respect to the
action ordered.” Id. In other words, the official must be “responsible for establishing
final government policy respecting such activity before the municipality can be held
liable.” Id. at 483.

         Under Pembaur, therefore, the City may be held liable under § 1983 for the
failure to disclose exculpatory evidence and the destruction of evidence from
Moldowan’s first trial, even though those actions were not taken pursuant to an
overarching policy. And, contrary to Defendants’ assertions, municipal “policymaker”
liability has been clearly established at least since Pembaur was decided in 1986.21


         20
             Defendants vigorously argue that, even taking all of his allegations as true, Moldowan will not
be able to prevail on Count XXVI. This argument does have some appeal. Despite extensive discovery,
Moldowan has yet to identify the individual responsible for ordering the destruction of evidence.
Moldowan also has not introduced any evidence of an official policy directing officers to withhold
exculpatory evidence from the prosecutor. Nor has he alleged a “clear and persistent pattern” of such
conduct. See Doe, 103 F.3d at 508. In fact, the City points to deposition testimony and sworn statements
suggesting that no such pattern or custom exists. Nevertheless, whether Moldowan has alleged facts
sufficient to satisfy the elements of a claim for municipal liability is beyond the scope of this interlocutory
appeal. The evidence on which Defendants rely does not, as did the record evidence before the Supreme
Court in Scott, “so utterly discredit[]” Moldowan’s assertions such that “no reasonable jury could have
believed him.” 550 U.S. at 380.
         21
          We also disagree with the notion that Moldowan cannot make out a claim against the City
under Count XXVI because he cannot show any constitutional violation on the part of Officer Schultz.
Although Officer Schultz did not violate Moldowan’s constitutional rights by destroying the case evidence,
Nos. 07-2115/2116/2117            Moldowan v. City of Warren, et al.                            Page 49


         Because we conclude that Moldowan’s claims against the City are based on
claims that implicate clearly established constitutional rights, we affirm the district
court’s denial of summary judgment as to these claims.

          6. Counts V-VIII, XVI-XIX, and XXXIV — Conspiracy Claims

         Moldowan’s Third Amended Complaint also asserts numerous claims alleging
that the Defendants, in various ways, conspired together to violate his constitutional
rights. Moldowan’s conspiracy claims are asserted against Defendants Ingles, Fournier,
and Dr. Warnick acting in concert together as well as with unnamed members of the
Warren Police Department and the Macomb County Prosecutor’s Office.

         In this circuit, “[i]t is well-settled that conspiracy claims must be pled with some
degree of specificity and that vague and conclusory allegations unsupported by material
facts will not be sufficient to state such a claim under § 1983.” Gutierrez v. Lynch, 826
F.2d 1534, 1538 (6th Cir. 1987). After reviewing each of Moldowan’s conspiracy
claims, it is evident that he has failed to plead these claims with the requisite specificity.
In Count V, for instance, Moldowan merely asserts that Dr. Warnick and Detective
Ingles, along with other unnamed members of the Warren Police Department, “conspired
together for the illegal purpose of violating [his] civil rights.” (J.A. 287.) To support
that claim, Moldowan offers only one substantive factual allegation, that “Defendants
. . . arrang[ed] for the photographing of the bite marks on Ms. Fournier and for making
molds of Mr. Moldowan’s and Mr. Cristini’s dentition.” (J.A. 287.) Moldowan makes
no other allegations of acts taken in furtherance of a conspiracy. Without offering any
further allegations, Moldowan then incorporates these “prior allegations” in Counts VI-
VIII, serially recasting this claim as different constitutional violations. Moldowan takes
the same approach in all of his other conspiracy claims, offering nothing more than one
conclusory allegation in his first claim in the series, and then repeatedly recasting that
allegation as different constitutional violations.


Moldowan nevertheless may be able to show that “the individual with final policy-making authority who
directed . . . the destruction of the evidence” was aware of the materiality of the evidence, and thus did
violate Moldowan’s rights under Trombetta and Youngblood. Thus, at this stage at least, we are not
inclined to grant summary judgment on that basis.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 50


       As in Gutierrez, a review of the allegations contained in Moldowan’s various
conspiracy claims evinces that “they are insufficient to withstand a motion for summary
judgment [because they] . . . lack the requisite material facts and specificity necessary
to sustain a conspiracy claim.” 826 F.2d at 1539; see also Jaco v. Bloechle, 739 F.2d
239, 245 (6th Cir. 1984) (affirming dismissal of conspiracy claim where “complaint
merely alleged broad conclusory negligence language void of the factual allegations
necessary to support a conspiracy theory”). Accordingly, summary judgment is
appropriate as to each of Moldowan’s nine conspiracy claims. See Spadafore v.
Gardner, 330 F.3d 849, 853-54 (6th Cir. 2003).

                      7. Count XXXV — False Imprisonment

       In Count XXXV, Moldowan asserts a claim against the City of Warren for false
imprisonment and continued seizure without probable cause under the Fourth
Amendment. Specifically, Moldowan alleges that, after the Michigan Supreme Court
reversed his conviction in 2002, there no longer was “probable cause to believe that [he]
had committed the criminal acts that Defendant Fournier accused him of,” and thus,
“[b]y virtue of being held under house arrest without probable cause,” he was
“unlawfully restrained.” (J.A. 319-20.)

       In Spurlock, this Court held that plaintiffs asserted claims that alleged violations
of established constitutional rights by alleging that “defendants wrongfully investigated,
prosecuted, convicted and incarcerated them; that [a defendant police officer] fabricated
evidence and manufactured probable cause; [and] that they were held in custody, despite
a lack of probable cause to do so.” 167 F.3d at 1005. Spurlock also held that the rights
in question were clearly established by at least April of 1990, the date of the alleged
conduct in that case. Id. at 998-99. Under Spurlock, then, Moldowan’s nearly identical
allegations also must implicate clearly established constitutional right. This conclusion
is not affected by the trial court’s determination, prior to Moldowan’s first trial, that
probable cause existed. See Hinchman v. Moore, 312 F.3d 198, 202-03 (6th Cir. 2002)
(“[A] finding of probable cause in a prior criminal proceeding does not bar a plaintiff in
a subsequent civil action from maintaining a claim for malicious prosecution under
Nos. 07-2115/2116/2117      Moldowan v. City of Warren, et al.                   Page 51


Michigan law where the claim is based on a police officer’s supplying false information
to establish probable cause.” (citing Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th
Cir. 2001))).

       Nor are we persuaded by Defendants’ arguments that we can or should resolve
the disputed factual issues underlying the probable cause determination. Whether
probable cause existed to support the decision to arrest and detain a suspect generally
is a question of law that may be reviewed de novo by this Court. See United States v.
Combs, 369 F.3d 925, 937 (6th Cir. 2004) (citing United States v. Hill, 195 F.3d 258,
264 (6th Cir. 1999)). Because of the posture of this appeal, however, we cannot consider
the disputed factual issues underlying Moldowan’s claim that there was a want of
probable cause. See Johnson, 515 U.S. at 313-18; Gregory, 444 F.3d at 743-44. We
thus affirm the district court’s denial of summary judgment as to this claim.

                                          V.

       Next we turn to the claims raised by Dr. Warnick’s appeal (Case No. 07-2116).
Dr. Warnick is the forensic odontologist who testified that, in his expert opinion, the
bite-mark evidence conclusively linked Moldowan to the attack. Dr. Warnick’s
testimony undoubtedly played a major role in Moldowan’s conviction as it confirmed
Fournier’s testimony that Moldowan was one of her assailants. Moldowan asserts
various claims against Dr. Warnick. Each of these claims is considered in turn.

A. Counts I-IV — Fabricating Evidence and Withholding Exculpatory Evidence

       In Counts I-IV, Moldowan asserts violations of his rights under the Fourth, Fifth,
Sixth, and Fourteenth Amendments, alleging that Dr. Warnick, “either intentionally or
with deliberate indifference and/or with reckless disregard of the truth and of
[Moldowan’s] constitutional rights, fabricated evidence and withheld impeaching and
exculpatory evidence from the Macomb County Prosecutor and from [Moldowan’s]
defense counsel.” (J.A. 284.) In response, Dr. Warnick argues that he is entitled to
summary judgment on these claims because Moldowan’s complaint failed to identify the
allegedly unconstitutional conduct. Dr. Warnick’s argument is not well taken.
Nos. 07-2115/2116/2117             Moldowan v. City of Warren, et al.                              Page 52


         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. See Harlow, 457 U.S. at 817-18. In clarifying the scope of the
qualified immunity inquiry, the Supreme Court stated in Mitchell :

         An appellate court reviewing the denial of the defendant’s claim of
         immunity need not consider the correctness of the plaintiff’s version of
         the facts, nor even determine whether the plaintiff’s allegations actually
         state a claim. All it need determine is a question of law: whether the
         legal norms allegedly violated by the defendant were clearly established
         at the time of the challenged actions or, in cases where the district court
         has denied summary judgment for the defendant on the ground that even
         under the defendant’s version of the facts the defendant’s conduct
         violated clearly established law, whether the law clearly proscribed the
         actions the defendant claims he took.
472 U.S. at 528 (emphasis added). Accordingly, we need not determine at this stage
whether Moldowan’s complaint states a claim on which relief may be granted, but only
whether, assuming the facts as asserted by Moldowan, the “legal norms allegedly
violated by the defendant were clearly established at the time of the challenged action.”
Id.

         In Gregory, we reasoned that expert forensic examiners “act in an investigatory
fashion when they interpret and document physical evidence,” and thus we determined
that “the intentional fabrication of a forensic report” is subject to the same considerations
applied to the intentional fabrication of evidence by a police officer or prosecutor. 444
F.3d at 740. Under that framework, Gregory concluded that a forensic expert may be
subject to suit under § 1983 for deliberately withholding the existence of exculpatory
forensic evidence or fabricating forensic evidence. Id. at 744. Relying on Spurlock,
Gregory reaffirmed that a forensic expert defendant “‘cannot seriously contend that a
reasonable [investigator] would not know that such actions were inappropriate and
performed in violation of an individual’s constitutional . . . rights.’”22 Id. at 744

         22
            Contrary to Defendants’ suggestion, the fact that Dr. Warnick subsequently testified as to these
issues does not insulate him from liability. As we made clear in Gregory, absolute testimonial immunity
does not “relate backwards” to protect a defendant for any activities he allegedly engaged in prior to taking
the witness stand. 444 F.3d at 738-39 (“Subsequent testimony can not insulate previous fabrications of
evidence merely because the testimony relies on that fabricated evidence.”).
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                 Page 53


(quoting Spurlock, 167 F.3d at 1005) (alteration in Gregory). Gregory’s reliance on
Spurlock is significant because we determined in that case that this legal norm was
clearly established at least as early as April or May of 1990. 167 F.3d at 998-99, 1006.

          Taking Moldowan’s allegations that Dr. Warnick fabricated and manipulated
evidence as true, we conclude that Counts I-IV assert violations of a clearly established
legal norm. We thus affirm the district court’s denial of summary judgment as to these
claims.

                        B. Count XXXIII — Gross Negligence

          In Count XXXIII, Moldowan asserts a claim of gross negligence under state law.
Under Michigan law, Dr. Warnick enjoys statutory immunity from liability to the extent
that his conduct was within the scope of his duties as the State’s forensic expert. M.C.L.
§ 691.1407(2). Because Dr. Warnick’s conduct plainly falls within the scope of his
duties, Moldowan must demonstrate that Dr. Warnick’s conduct rises to the level of
“gross negligence.” See Payton, 536 N.W.2d at 242. Gross negligence is defined by
statute as “conduct so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” M.C.L. § 691.1407(7)(a); see also Tallman v. Markstrom,
446 N.W.2d 618 (Mich. 1989). Whether Dr. Warnick’s alleged conduct was sufficiently
reckless, however, is a question of fact that is beyond the scope of this Court’s
jurisdiction, and thus that disputed issue of fact precludes summary judgment.

          In addition, Moldowan also argues that Dr. Warnick intentionally withheld
exculpatory evidence and fabricated evidence to support his conclusions. Because “the
immunity provided by MCL 691.1407(2) does not apply to an intentional tort by an
individual governmental employee,” Walsh v. Taylor, 689 N.W.2d 506, 510 (Mich. Ct.
App. 2004), that provision cannot provide a basis for summary judgment because we
must presume the veracity of Moldowan’s allegations. Accordingly, we affirm the
district court’s denial of summary judgment as to Count XXXIII.
Nos. 07-2115/2116/2117           Moldowan v. City of Warren, et al.                         Page 54


                                                VI.

        Finally, we address whether Fournier is entitled to immunity as to the various
claims Moldowan asserts against her (Case No, 07-2117).

                            A. Absolute Testimonial Immunity

        As an initial matter, we note that, to the extent that Moldowan’s claims against
Fournier rely on allegations that she offered perjured testimony at trial, Fournier is
entitled to absolute immunity. Briscoe, 460 U.S. at 345. Fournier is entitled to
immunity regardless of whether she conspired to deliver false or incomplete testimony.
See Alioto v. City of Shevely, 835 F.2d 1173, 1174 (6th Cir. 1987) (“The doctrine
enunciated in Briscoe v. LaHue also shields from liability alleged conspiracies to give
false and incomplete testimony in judicial proceedings.”).

        Moldowan argues that Fournier is not entitled to testimonial immunity under
Briscoe because she was the “complaining witness.” As noted above, the Supreme Court
has excluded from the scope of protections offered by the doctrine of absolute immunity
any conduct taken as the “complaining witnesses,” such as where a police officer
submits a false affidavit in support of an arrest warrant application. See Malley, 475
U.S. at 340-41. The record, however, plainly shows that Detective Ingles, not Fournier,
functioned as the complaining witness in submitting the August 14, 1990 criminal
complaint against Moldowan.23 (J.A. 2238.) The criminal complaint identifies Fournier
only as the “victim or complainant.” (J.A. 2238.)

        This is no mere formal distinction. Fournier did not submit an affidavit to secure
the arrest warrant, nor did she take any other actions to initiate Moldowan’s arrest or
prosecution that courts previously have found critical in applying the complaining
witness exception. Although Fournier’s identification of Moldowan as one of her
attackers certainly was critical to Detective Ingles’ decision to file a criminal complaint



        23
           In fact, Moldowan’s Third Amended Complaint explicitly acknowledges that “Defendant Ingles
signed [the] Complaint as the complaining witness charging Jeffrey Moldowan with four felonies.” (J.A.
275.)
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                     Page 55


against Moldowan and the Macomb County Prosecutor’s decision to pursue Moldowan’s
prosecution, her statements were only part of a broader, independent investigation. As
the record shows, the police also were led to Moldowan by statements from Fournier’s
sister, Moldowan’s prior arrests, and other evidence. In fact, Detective Ingles testified
that he did not speak to Fournier until two days after the assault, during which time his
investigation proceeded without her assistance.           By the time Detective Ingles
interviewed Fournier, he already had identified Moldowan as a likely suspect.

        Given Fournier’s limited role leading up to Moldowan’s arrest, and in light of the
independent inquiry conducted by the police, extending the complaining witness
exception to Fournier in this case would run counter to the functional analysis we must
apply in this context. See Holloway v. Brush, 220 F.3d 767, 774 (6th Cir. 2000)
(“Absolute immunity is determined by a functional analysis that looks to ‘the nature of
the function performed, not the identity of the actor who performed it.’” (quoting
Buckley, 509 U.S. at 269)).

                  B. Count XVI-XIX — § 1983 Conspiracy Claims

        In Counts XVI-XIX, Moldowan asserts claims under § 1983 against Fournier,
a private citizen, alleging that she conspired to violate his Fourth, Fifth, Sixth, and
Fourteenth Amendment rights by fabricating evidence or withholding exculpatory
evidence. In addition to being inadequately pled, see supra Part IV.C.6, we also hold
that Moldowan cannot maintain an action under § 1983 against Fournier because she is
not a “state actor” and did not act “under color of law.” See Tahfs v. Proctor, 316 F.3d
584, 590 (6th Cir. 2003) (“A plaintiff may not proceed under § 1983 against a private
party ‘no matter how discriminatory or wrongful’ the party’s conduct.” (quoting Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999))).

        This circuit recognizes three tests for determining whether private conduct is
fairly attributable to the state: the public function test, the state compulsion test, and the
nexus test.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                     Page 56


       The public function test “requires that the private entity exercise powers
       which are traditionally exclusively reserved to the state . . . .” The
       typical examples are running elections or eminent domain. The state
       compulsion test requires proof that the state significantly encouraged or
       somehow coerced the private party, either overtly or covertly, to take a
       particular action so that the choice is really that of the state. Finally, the
       nexus test requires a sufficiently close relationship (i.e. through state
       regulation or contract) between the state and the private actor so that the
       action may be attributed to the state.
Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995) (citations omitted). Moldowan
offers no basis for concluding that any of these tests applies here. Providing information
to the police, responding to questions about a crime, and offering witness testimony at
a criminal trial does not expose a private individual to liability for actions taken “under
color of law.” See Briscoe, 460 U.S. 329 (“[Section] 1983 does not allow recovery of
damages against a private party for testimony in a judicial proceeding.”); see also
Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“We know of no case in
which the report of a state crime is action under color of state law under § 1983. The
mere furnishing of information to police officers does not constitute joint action under
color of state law which renders a private citizen liable under §§ 1983 or 1985.”).

       Fournier thus is entitled to summary judgment as to Counts XVI, XVII, XVIII,
and XIX.

                      C. Count XXX — Malicious Prosecution

       Moldowan also cannot sustain a claim for malicious prosecution against
Fournier.   Under Michigan law, a plaintiff may maintain a claim of malicious
prosecution “against a private person” where the plaintiff offers “proof that the private
person instituted or maintained the prosecution and that the prosecutor acted on the basis
of information submitted by the private person that did not constitute probable cause.”
Matthews v. Blue Cross & Blue Shield, 572 N.W.2d 603, 610 (Mich. 1998). Michigan
law, however, also recognizes that a criminal prosecution “is initiated in the sole
discretion of the prosecutor.” Id. at 605. This is critical because, as the Michigan
Supreme Court explained in Matthews, the intervening and “independent exercise of
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 57


prosecutorial discretion establishes that the private defendant did not initiate the
prosecution.” Id. at 613. Thus, if the police or the prosecutor initiate the prosecution
on the basis of evidence obtained through their own independent investigation, the
complaining victim is insulated from liability. Id. at 613 n.28 (“‘The exercise of the
officer’s discretion makes the initiation of the prosecution his own and protects from
liability the person whose information or accusation has led the officer to initiate the
proceedings.’” (quoting 3 Restatement Torts 2d § 653, cmt. g)). “Thus, in Michigan, the
prosecutor’s exercise of his independent discretion in initiating and maintaining a
prosecution is a complete defense to an action for malicious prosecution.” Id. at 613
(emphasis added).

       That is precisely the case here.         As noted above, although Fournier’s
identification of Moldowan as one of her attackers certainly was critical to the Macomb
County Prosecutor’s decision to prosecute him, her statements were only part of a
broader, independent investigation. Under controlling Michigan authority, the exercise
of independent judgment and discretion on the part of the police and the prosecutor
precludes, as a matter of law, a malicious prosecution claim against Fournier.

       D. Count XXXVI— Intentional Infliction of Emotional Distress

       In Count XXXVI, Moldowan also asserts a state law intentional infliction of
emotional distress claim against Fournier. According to the Third Amended Complaint,
that claim rests on Fournier’s alleged conduct “outside the courtroom with respect to the
second prosecution.” (J.A. 321.) But Fournier’s role in the second prosecution was
limited to testifying. There is nothing in the record to suggest that Fournier did anything
“outside the courtroom” leading up to the second trial that would support Moldowan’s
claim. Accordingly, Fournier is entitled to absolute immunity as to Count XXXVI. See
Briscoe, 460 U.S. at 342-45.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 58


                                           VII.

       For all of the reasons set forth above, we hereby: (1) hold that we have
jurisdiction to consider Defendants’ interlocutory appeals, and thus DENY each of
Moldowan’s motions to dismiss; (2) REVERSE the judgment of the district court and
grant summary judgment as to Counts V, VI, VII, VIII, XVI, XVII, XVIII, XIX, and
XXXIV on the ground that Moldowan failed to plead his conspiracy claims with the
requisite specificity; (3) REVERSE the judgment of the district court and grant
summary judgment as to Counts XIII, XIV, XV, XXII, and XXXVI on the ground that
Defendants are entitled to immunity as to these claims; (4) REVERSE the judgment of
the district court and grant summary judgment as to Counts XVI, XVII, XVIII, and XIX
on the ground that § 1983 cannot support a claim against Fournier, a private individual,
under these circumstances; (5) REVERSE the judgment of the district court and grant
summary judgment as to Count XXIII on the ground that 18 U.S.C. § 1503 does not
provide a private right of action and cannot support a civil claim for damages under
§ 1983; (6) REVERSE the judgment of the district court and grant summary judgment
as to Count XXX on the ground that Michigan law does not support a claim for
malicious prosecution against a victim complainant under these circumstances;
(7) REVERSE the judgment of the district court and grant summary judgment as to
Count XXXI on the ground that Michigan law does not support a claim for malicious
prosecution against Detective Ingles under these circumstances; and (8) AFFIRM the
judgment of the district court denying summary judgment as to Counts I, II, III, IV, IX,
X, XI, XII, XXIV, XXVI, XXXIII, and XXXV on the ground that Moldowan’s
allegations implicate clearly established constitutional rights and disputed issues of fact
preclude summary judgment.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 59


   __________________________________________________________________

     CONCURRING IN THE JUDGMENT IN PART, DISSENTING IN PART
   __________________________________________________________________

       KETHLEDGE, Circuit Judge, concurring in the judgment in part, and dissenting
in part. Moldowan puts many labels on his claims, but his claim against Officer Ingles
is essentially that he should have disclosed, presumably to the prosecutor, the fact and
contents of Jerry Burroughs’ alleged statement to Ingles. I agree with the majority’s
conclusion that, under the standard of review applicable here, Moldowan is entitled to
proceed with that claim. But I respectfully disagree with how the majority gets there.

                                            I.

                                            A.

       With a significant caveat, the majority gets there by extending the no-fault
regime of Brady v. Maryland, 373 U.S. 83 (1963)—or at least something functionally
“analogous” to it, Maj. Op. at 26—to police officers. The caveat, as discussed below,
may as a practical matter render insignificant the differences between the majority’s
approach and my own. I think it important, however, to explain why extending the
Brady regime to police officers would be both unprecedented and unwise.

       “The Brady doctrine imposes an absolute duty on the prosecutor to produce all
materially favorable evidence in the State’s possession.” Villasana v. Wilhoit, 368 F.3d
976, 979 (8th Cir. 2004). By its terms, therefore, Brady applies to prosecutors, not
police officers. Brady itself, of course, did not involve police conduct at all, but rather
concerned a criminal defendant’s attempt to obtain a new trial based upon the
prosecution’s suppression of evidence favorable to him. In granting Brady partial relief
from his conviction, the Court held “that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87 (emphasis added). Thus the Brady duty, as stated by the
Brady Court, was imposed on the prosecutor; and in cases since, “[t]he Supreme Court
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                    Page 60


has never imposed this absolute duty on law enforcement officials other than the
prosecutor.” Villasana, 368 F.3d at 979; see also Jean v. Collins, 221 F.3d 656, 660 (4th
Cir. 2000) (en banc) (Wilkinson, C.J., concurring in the judgment) (“The Supreme Court
has always defined the Brady duty as one that rests with the prosecution”) (collecting
Supreme Court cases); Lindsay v. Bogle, 92 F. App’x 165, 170 (6th Cir. 2004) (“the
Brady obligation applies only to prosecutors”).

       The imposition of that same absolute duty on police officers, therefore, would
represent an extension of Brady that the Supreme Court itself has not made in the 46
years since it rendered the decision. I do not think the omission is fortuitous. Not only
by its terms, but also by its content, the Brady duty is uniquely tailored to prosecutors.
It applies to exculpatory evidence that is “material”; and the Supreme Court says that
“[s]uch evidence is material ‘if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding [that is, the criminal trial]
would have been different.’” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)). Whether a particular piece of
evidence would have changed the result of a criminal trial, of course, is a judgment that
prosecutors, not police officers, are trained to make. The Eighth Circuit so observed in
refusing to extend Brady to police officers:

       It is logical to impose Brady’s absolute duty on the government official
       who will present the State’s case at trial [i.e., the prosecutor], who can be
       expected to gather material evidence from law enforcement agencies, and
       who is in the best position to evaluate whether evidence must be
       disclosed because it is materially favorable to the defense.
Villasana, 368 F.3d at 979. And so too, in rejecting the same extension, did a plurality
of the en banc Fourth Circuit:

       The Brady duty is framed by the dictates of the adversary system and the
       prosecution’s legal role therein. Legal terms of art define its bounds and
       limits. The prosecutor must ask such lawyer’s questions as whether an
       item of evidence has “exculpatory” or “impeachment” value and whether
       such evidence is “material.” It would be inappropriate to charge police
       with answering these same questions, for their job of gathering evidence
       is quite different from the prosecution’s task of evaluating it.
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                    Page 61


Jean, 221 F.3d at 660 (Wilkinson, C.J., concurring in the judgment).

        The extension is also unnecessary. The Brady rule already “encompasses
evidence ‘known only to police investigators and not to the prosecutor.’” Strickler, 527
U.S. at 280-81 (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)). But it is the
prosecutor, not the police themselves, who bears an absolute duty to disclose it. Indeed,
even as to evidence solely in police possession—which is the kind of evidence at issue
here—the Supreme Court has specifically refused to impose the Brady duty directly
upon the police, saying that to do so “would . . . amount to a serious change of course
from the Brady line of cases.” Kyles, 514 U.S. at 438. Instead, to comply with Brady,
“the individual prosecutor has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case, including the police.” Id. at 437
(emphasis added). And any breach of that duty, no matter how diligent the prosecutor’s
efforts, entitles the criminal defendant to a new trial; “the prosecution’s responsibility
for failing to disclose known [even only to the police], favorable evidence rising to a
material level of importance is inescapable.” Id. at 438. Moreover, as discussed below,
no one disputes that police officers already have an independent duty—though not a
Brady duty—not to conceal materially exculpatory evidence in bad faith. Thus, as a
practical matter, extending Brady to police officers would accomplish little with respect
to the fairness of criminal trials that current law does not already accomplish.

        What that extension would accomplish, rather, is a significant increase in
lawsuits against police officers. Prosecutors enjoy absolute immunity for actions taken
in their official capacities, see Imbler v. Pachtman, 424 U.S. 409, 413-16 (1976),
whereas police officers do not. Police officers, therefore, would become the special
object of attention from criminal defendants who believe that allegedly exculpatory
evidence should have been, but was not, disclosed to their counsel prior to trial. And in
this respect the police would present a large target. Police officers, particularly ones like
Ingles who investigate violent crime in the field, obtain a great deal of information in the
course of an investigation. Some of what they obtain, like shell casings, is tangible, but
much of it, like things they may have seen or heard in the course of their activities, is
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 62


not. As a practical matter, an officer cannot preserve, and thus pass on to the prosecutor,
everything he sees, hears, or learns in the course of investigating a crime. He instead has
to exercise judgment about what seems important and what does not. But if an officer
bears an absolute duty to disclose materially exculpatory evidence, all of the information
thus filtered by an officer’s judgment, even in the purest good faith, potentially becomes
the basis of a lawsuit against him. An officer’s failure to recognize an exculpatory clue,
for example, and thus to pass it on to the prosecutor, would be a violation of the Due
Process Clause. That the officer was merely negligent, or even that no reasonable officer
could have understood the clue’s significance at the time, would be no defense; the
Brady duty is absolute. So if the clue could have changed the result of the criminal
defendant’s first trial, the defendant would not only get a second one; he would be
entitled to have the officer pay him for his troubles as well.

       This exposure would arise not only from evidence considered in isolation. We
must consider evidence cumulatively in determining whether it is materially exculpatory
for purposes of Brady, see Kyles, 514 U.S. at 436, so an officer’s failure to connect the
exculpatory dots, as well, would render him liable for damages. Two, or indeed any
number of, pieces of information, that might have seemed unimportant to a reasonable
investigator at the time, but that present an exculpatory picture after the fact when
arranged just so, would be grounds for a suit.

       Once unleashed, these suits would be very difficult to stop short of trial. For in
these cases the refuge of qualified immunity would be illusory. Qualified immunity
requires that the officer violate “clearly established” constitutional rights to be liable,
with the idea being that, by definition, such liability is usually limited to officers who
knew or should have known they were violating the law. See Saucier v. Katz, 533 U.S.
194, 202 (2001). But it does an officer little good to be aware of the existence of a
generic duty, if, when acting in good faith and to the best of his ability, he is not aware
that he is breaching it. And because the Brady duty is absolute, a criminal-defendant-
turned-plaintiff would need not prove that the officer knew—or even that any reasonable
officer would have known—that the officer had a duty to disclose the particular
Nos. 07-2115/2116/2117      Moldowan v. City of Warren, et al.                   Page 63


information at issue. Foreknowledge of illegality would be beside the point; and thus,
as a practical matter, qualified immunity would be no immunity at all.

                                           B.

       For good reason, then, no federal appellate court has extended Brady’s no-fault
regime to police officers. Two circuits have addressed the issue directly; and both of
them pointedly refused to make the extension. In Porter v. White, 483 F.3d 1294 (11th
Cir. 2007), the court “h[e]ld that the no-fault standard of care Brady imposes on
prosecutors in the criminal or habeas context has no place in a § 1983 damages action
against a law enforcement official in which the plaintiff alleges a violation of due
process.” Id. at 1306. The court thus concluded that “a negligent act or omission cannot
provide a basis for liability in a § 1983 action seeking compensation for loss of liberty
occasioned by a Brady violation.” Id. at 1308. And in Villasana, the Eighth Circuit held
that a “bad faith standard should likewise apply to due process claims that law
enforcement officers preserved evidence favorable to the defense but failed to disclose
it.” 368 F.3d at 980.

       None of the cases that the majority cites actually imposes Brady’s absolute duty
of disclosure upon police officers. Most of them instead find liability for precisely the
sort of bad-faith conduct that would give rise to liability under virtually any standard.
See, e.g., Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988) (finding liability
for “retaining records in clandestine files deliberately concealed from prosecutors and
defense counsel”); Hart v. O’Brien, 127 F.3d 424, 446 (5th Cir. 1997) (permitting a
§ 1983 claim “against a police officer who, after learning of patently exculpatory
evidence, deliberately fails to disclose it to the prosecutor”) (internal quotation marks
omitted).

       Nor do our own decisions in Spurlock v. Satterfield, 167 F.3d 995 (6th Cir.
1999), and Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), provide support
for imposing such an absolute duty upon police officers. Spurlock was not a failure-to-
disclose case at all, but instead involved claims of fabricated evidence. See 167 F.3d at
1005. And we decided Gregory emphatically on jurisdictional grounds. See 444 F.3d
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 64


at 743-44 (holding that, because the defendant officer’s “sole argument with the district
court’s denial of qualified immunity goes to whether there exists a genuine issue of fact
for trial . . . this Court lacks jurisdiction to entertain [the officer’s] appeal from the
district court’s denial of qualified immunity for Plaintiff’s claim of Brady violations”)
(emphasis added).

       Still more revealing is Moldowan’s heavy reliance—and to a lesser extent the
majority’s—on our decision in Hilliard v. Williams, 516 F.2d 1344 (6th Cir. 1975),
vacated in part, 424 U.S. 961 (1976). The failure-to-disclose claim there was asserted
against the defendant prosecutor, Williams, not the defendant police officer, Clark. See
id. at 1349 (“Williams withheld an F.B.I. report indicating that there was no blood on
[plaintiff’s] jacket”). The Supreme Court vacated our decision as to that claim on direct
review. The other claim in the case, against Officer Clark, was based upon his
“deceptive and misleading testimony” at Hilliard’s criminal trial. Id. (emphasis added).
Which is to say, Hilliard was not a police-disclosure case at all. Moreover, as to Clark,
we thought “it plain that a law enforcement officer who knowingly gives evasive,
misleading, and deceptive testimony during a criminal trial cannot escape civil
liability[.]” Id. That holding too has since been invalidated by the Supreme Court. See
Briscoe v. LaHue, 460 U.S. 325, 328 (1983) (“all witnesses—police officers as well as
lay witness—are absolutely immune from civil liability based on their trial testimony in
judicial proceedings”). Hilliard is thus an empty husk of a decision, which did not
present the issue before us in the first place, and which cannot possibly support
extending Brady to police officers.

                                           C.

                                            1.

       The issue before us today, as the majority correctly observes, is one of law rather
than policy. And I would decide it as such. The standard that I would apply—and the
one the Eighth and Eleventh Circuits apply—is the one that the Supreme Court has so
far always applied to determine officer liability in the “area of constitutionally
guaranteed access to evidence”: namely, bad faith. Arizona v. Youngblood, 488 U.S.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                  Page 65


51, 55 (1988) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
This standard requires proof that the officer engaged in “a conscious effort to suppress
exculpatory evidence.” California v. Trombetta, 467 U.S. 479, 488 (1984). That
requirement “both limits the extent of the police’s obligation . . . to reasonable bounds
and confines it to that class of cases where the interests of justice most clearly require
it, i.e., those cases in which the police themselves by their conduct indicate that the
evidence could form a basis for exonerating the defendant.” Youngblood, 488 U.S. at
58.

       Notwithstanding this plain language, the majority reads Youngblood to mean that
no showing of bad faith is required to establish a violation of due process by the police
“where ‘material exculpatory evidence’ is concerned[.]”           Maj. Op. at 35.     But
Youngblood does not quite say that. What Youngblood says is that “[t]he Due Process
Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad
faith of the State irrelevant when the State fails to disclose to the defendant material
exculpatory evidence.” 488 U.S. at 57 (emphasis added). That statement does not
impose an absolute duty upon police officers—as shown above, there was no police
conduct at issue in Brady—but is instead merely a restatement of the prosecutor’s
absolute duty to disclose materially exculpatory evidence to the defendant. The
evidence at issue in Youngblood was only “potentially” exculpatory, however, id. at 58,
so it fell outside the scope of the prosecutor’s absolute duty under Brady. The Court
therefore considered whether the police had violated a duty “over and above” that
imposed on the prosecutor, id. at 56, by failing to preserve that evidence. And the Court
held that, to establish such a violation, Youngblood had to prove that the police
destroyed the evidence in “bad faith[.]” Id. at 58.

       But that holding does not mean that the police violate a defendant’s due-process
rights when, in the absence of bad faith, they fail to preserve or disclose materially
exculpatory evidence. To the contrary, as the Youngblood Court’s reiteration of the
Brady duty makes clear, the failure to provide such evidence to the defendant would
merely amount to a violation of the prosecutor’s absolute duty to disclose such evidence.
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                  Page 66


See also Kyles, 514 U.S. at 437 (“the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in this case,
including the police”) (emphasis added). Nor does the Supreme Court’s holding in
Trombetta impose on police officers an absolute duty to preserve or disclose materially
exculpatory evidence. Instead, the Supreme Court “rejected [Trombetta’s] argument for
several reasons[,]” the “first” of which was that “‘the officers here were acting in good
faith and in accord with their normal practice[.]’” Youngblood, 488 U.S. at 56 (quoting
Trombetta, 467 U.S. at 488) (emphasis added; internal quotation marks omitted). That
the Youngblood Court discussed the bad-faith standard in connection with potentially
exculpatory evidence merely reflects the fact that, had the evidence there been materially
exculpatory, there would have been no need to discuss police duties in the first place.
Because in that event the prosecutor would have violated his duty under Brady.

                                            2.

       There remains the question whether Molodowan’s claim against Ingles can
proceed under Youngblood’s bad-faith standard. That claim is based upon Ingles’ failure
to convey to the prosecutor the substance of Burroughs’ statement to Ingles. Two
aspects of Burroughs’ testimony, in my view, are critical. First, he testified that he had
personally heard two men—neither of whom was Moldowan—discussing Fournier’s
rape while standing outside the house next to his house. That testimony, when viewed
(as it must be) in the light most favorable to Moldowan, could be interpreted as meaning
that the two men essentially admitted their involvement in the crime. Second, Burroughs
testified that he told “my story” to Ingles. That reference, when viewed in that same
light, could be understood to encompass all of Burroughs’ story regarding the crime,
including the two mens’ admission on the sidewalk next door. Thus, when viewed in the
light most favorable to Moldowan, and as a whole, Burroughs’ testimony could be read
to mean that he told Ingles that two other men had essentially admitted to committing
the crime Ingles was investigating.

       There is no direct evidence that Ingles withheld Burroughs’ statement in bad
faith. And I think courts should be wary of inferring bad faith from the mere fact of an
Nos. 07-2115/2116/2117        Moldowan v. City of Warren, et al.                     Page 67


officer’s failure to disclose evidence, lest the bad-faith standard become in practice an
absolute one. But I think that, under the circumstances present here, a jury could infer
bad faith from Ingles’ failure to disclose Burroughs’ statement—whose existence, to be
fair, Ingles disputes—to the prosecutor. Of course, a jury would be free not to make that
inference, in part because they might choose to understand Burroughs’ testimony in a
light less favorable to Moldowan, or not to believe it at all. Given our standard of
review, however, we are not so free. I therefore agree that Moldowan is entitled to
proceed with his claim against Ingles.

                                             3.

        As that bottom-line agreement suggests, my disagreement with the majority may
prove larger in theory than in practice. To establish an officer’s conscious suppression
of materially exculpatory evidence—and thus his bad faith—a plaintiff must prove,
among other things, “the police’s knowledge of the exculpatory value of the evidence
at the time” the criminal defendant says it should have been disclosed. Youngblood, 488
U.S. at 56 n. *. And therein lies the common ground between my approach and that of
the majority. Notwithstanding its rather extended defense of imposing an absolute duty
of disclosure upon police officers, and its rejection of a bad-faith standard in this context,
and its declaration that “‘Brady creates a singular constitutional duty, which prosecutors
and police officers are capable of breaching in different ways[,]’” Maj. Op. at 28
(quoting Jean, 221 F.3d at 656 (Murnaghan, J., dissenting)), the majority, to its credit,
does not simply extend Brady’s absolute duty of disclosure to police officers. The
majority instead recognizes a “practical concern that the police cannot be held
accountable for failing to divine the materiality of every possible scrap of evidence.”
Maj. Op. at 40. And the majority thus holds that a police officer does not breach his duty
of disclosure unless the “‘exculpatory value”’ of the undisclosed evidence is
“‘apparent’” to him. Maj. Op. at 40 (quoting Trombetta, 467 U.S. at 489). When
applying that rule to Moldowan’s claim against Officer Schultz, the majority holds—and
I agree—that Schultz was entitled to summary judgment because “there is no evidence
Nos. 07-2115/2116/2117       Moldowan v. City of Warren, et al.                   Page 68


in the record” that he “had any knowledge whatsoever about the nature of the evidence
that he destroyed.” Maj. Op. at 46.

        Thus, in the end, the majority extends Brady’s duty of absolute disclosure to
police officers, but limits the scope of that duty to evidence whose materially
exculpatory value was known to the particular officer sued. I think the better approach
would be simply to apply the Supreme Court’s bad-faith rule, rather than a modified
version of an absolute rule designed for prosecutors. In practice, however, the latter rule
will probably operate as the functional equivalent of the former.

                                              D.

        With one exception, I otherwise concur in the majority’s disposition of the
remaining claims in the case. The exception concerns Count 26, in which Moldowan
claims under § 1983 that the City is liable for Schultz’s destruction of evidence. “A
municipality . . . cannot be liable under § 1983 absent an underlying constitutional
violation by its officers.” Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir.
2004). As discussed above, Schultz did not violate Moldowan’s constitutional rights
when he disposed of the evidence from Moldowan’s first trial. The City therefore cannot
be liable under § 1983 on this claim.

        For these reasons, I concur partially in the judgment, and respectfully dissent in
part.
