                                  RECOMMENDED FOR PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                         File Name: 20a0177p.06

                      UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 SHASE HOWSE,                                                  ┐
                                     Plaintiff-Appellant,      │
                                                               │
                                                                >        No. 19-3418
        v.                                                     │
                                                               │
                                                               │
 THOMAS HODOUS and BRIAN MIDDAUGH, individually                │
 and in their official capacities as employees of the          │
 City of Cleveland, Ohio; CITY OF CLEVELAND, OHIO,             │
                                 Defendants-Appellees.         │
                                                               ┘

                                  On Petition for Reharing En Banc
             United States District Court for the Northern District of Ohio at Cleveland.
                      No. 1:17-cv-01714—Donald C. Nugent, District Judge.

                                  Decided and Filed: June 8, 2020

                    COLE, Chief Judge; COOK and THAPAR, Circuit Judges.

                                        _________________

                                              COUNSEL

ON PETITION FOR REHEARING EN BANC: Christopher Kemmitt, NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC., Washington, D.C., James L. Hardiman,
Cleveland, Ohio, for Appellant. ON RESPONSE: Elena N. Boop, CITY OF CLEVELAND,
Cleveland, Ohio, for Appellees Hodous and Middaugh. Timothy J. Puin, CITY OF
CLEVELAND, Cleveland, Ohio, for Appellee City of Cleveland

       The panel delivered an order. GIBBONS, J. (pg. 3), delivered a separate dissenting
opinion in which COLE, C.J., and WHITE, J., joined.
 No. 19-3418                          Howse v. Hodous et al.                             Page 2


                                      _________________

                                            ORDER
                                      _________________

       The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision. The petition then was circulated to the full
court. Less than a majority of the judges voted in favor of rehearing en banc.

       Therefore, the petition is denied.

                                             ENTERED BY ORDER OF THE COURT




                                             ___________________________________
                                             Deborah L. Hunt, Clerk
 No. 19-3418                          Howse v. Hodous et al.                               Page 3


                                       _________________

                                            DISSENT
                                       _________________

       GIBBONS, Circuit Judge, dissenting. I respectfully dissent from the court’s denial of en
banc rehearing. The panel’s holding with respect to malicious prosecution claims, which adopts
a one-size-fits-all approach to false arrest and malicious prosecution, is a precedent-setting error
of exceptional public importance. It is at odds with Supreme Court precedent, see Wallace v.
Kato, 549 U.S. 384, 390 (2007) (describing the claims as “entirely distinct”), and our precedents,
see, e.g., Jacobs v. Alam, 915 F.3d 1028, 1042–43 (6th Cir. 2019) (same). And it fails to engage
with the many compelling reasons offered by our sister circuits for declining to adopt such an
approach. See, e.g., Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007).

       But I dissent for a second reason. In qualified immunity cases, we have long held that a
plaintiff’s right must be defined with careful attention to the “specific factual circumstances” of
the case. Schulkers v. Kammer, 955 F.3d 520, 533 (6th Cir. 2020). And yet, in framing Shase
Howse’s right in this case, the panel fails to account for his suspected criminality (none),
location (home), or conduct (truthfully answering questions).

       We are often confronted with troubling allegations of official misconduct that result in no
liability because the plaintiff defines his perceived right too generally. While these difficult
cases frequently raise grounds for reasonable disagreement—and rarely warrant en banc
rehearing—our cases are unanimous in holding that a plaintiff’s right must be carefully defined.
When we depart from this well-accepted requirement, we erode one of the greatest sources of
confidence in the judiciary: the consistency of our jurisprudence.
