                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0129p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 JOSEPH BAILEY,                                            ┐
                                     Plaintiff-Appellee,   │
                                                           │
                                                           >      No. 16-2478
        v.                                                 │
                                                           │
                                                           │
 CITY OF ANN ARBOR; CHRISTOPHER FITZPATRICK,               │
 WILLIAM STANFORD, and MICHAEL DORTCH, in their            │
 individual and official capacities,                       │
                                  Defendants-Appellants.   │
                                                           ┘

                          Appeal from the United States District Court
                          for the Eastern District of Michigan at Flint.
                      No. 4:14-cv-12002—Linda V. Parker, District Judge.

                                Decided and Filed: June 20, 2017

                    Before: KEITH, BATCHELDER, and SUTTON, Circuit Judges.
                                    _________________

                                            COUNSEL

ON BRIEF: Thomas L. Kent, CITY OF ANN ARBOR, Ann Arbor, Michigan, for Appellants.
Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, for
Appellee.
                                       _________________

                                            OPINION
                                       _________________

       SUTTON, Circuit Judge. In this qualified immunity case, Ann Arbor police officers
relied on a security camera’s footage of a robbery, allegedly without accounting for inconsistent
eyewitness testimony, in drafting a search warrant for Joseph Bailey’s residence.        Yet the
warrant did not say whether the description of Bailey came from the robbery victim or just the
 No. 16-2478                      Bailey v. City of Ann Arbor, et al.                         Page 2


video and indeed mentioned both sources of information.             The description thus was not
deliberately false, and the district court erred in holding that it was. A review of the video also
confirms that there were few disparities between the video and the description in the warrant.
Even if we strip the warrant of any possible falsities, a fair probability remained that the officers
would find evidence of the robbery in Bailey’s home, meaning his Fourth Amendment claim
under § 1983 fails as a matter of law. And because the warrant was the sole evidence of
underlying unconstitutional conduct by Ann Arbor employees, his Monell claim fails as well.

                                                  I.

        On the evening of April 9, 2012, two men wearing masks robbed the Broadway Party
Store in Ann Arbor, Michigan. The security video shows that one masked man pointed a
shotgun at the store clerk. As the video shows, and as readers can see for themselves, Ann Arbor
News,     Gunpoint      Robbery     at    Ann     Arbor     Party       Store   (Apr.   19,    2012),
https://www.youtube.com/watch?v=ePP9fd0ckok, the gunman wore a black sweatshirt with a
white skeleton pattern that zipped up to form a skull hood, along with a dark vest and blue jeans.
The gunman’s exposed hands appeared black to the store clerk and on the video. The gunman’s
accomplice took cash from the register and several bottles of champagne. The masked men fled
half a minute after entering the store.

        The Ann Arbor Police Department investigated the robbery. About six weeks later,
Detectives Christopher Fitzpatrick and William Stanford visited the house of Joseph Bailey’s
mother. She said her son wasn’t home and showed the detectives his bedroom to prove it. The
detectives saw a skeleton hoodie hanging on the bedroom door. Stanford prepared an affidavit
for a search warrant later that day that noted that the gunman was “wearing a skeleton sweat shirt
mask with the hood zipped in the front as a skull” and that the detectives had seen a similar
sweatshirt in Bailey’s room. The search warrant added that Stanford had received a tip from an
unknown caller who said that Bailey, an African-American, had committed the robbery. A judge
approved the search warrant for clothes, identifying documents, and money in the house, and the
detectives seized the skeleton sweatshirt and other clothes.
 No. 16-2478                     Bailey v. City of Ann Arbor, et al.                         Page 3


       Later that day, Fitzpatrick and Stanford approached Bailey and arrested him after he fled
from them into a wooded area. A grand jury indicted Bailey for armed robbery, possession of a
short-barreled shotgun, and resisting arrest. The prosecutor dropped the first two charges, and
Bailey pleaded guilty to the resistance charge.

       Bailey sued the City of Ann Arbor, Fitzpatrick, Stanford, and Detective Michael Dortch,
the officer in charge of the investigation, under 42 U.S.C. § 1983, claiming they violated his
Fourth Amendment rights. He claimed that the store clerk told Dortch that the gunman “was five
feet/ten inches tall; was wearing a white mask (not a hoodie) that covered the entire head with
insect-type/Spiderman eyes; was wearing a white coat; and did not know what type of pants or
shoes were worn.” R. 22 at 4. He claimed that the YouTube video of the robbery supported the
store clerk’s description of the suspect rather than the description of the gunman provided in the
search warrant affidavit. And he claimed that Stanford never received an anonymous tip.

       The defendants moved to dismiss the complaint.            Relying on a magistrate judge’s
recommendation, the district court denied the detectives’ motion to dismiss the search and
seizure claim and the malicious prosecution claim based on the purported falsehoods in the
search warrant affidavit. For similar reasons, the court did the same with respect to the City’s
motion to dismiss the Monell claim.

                                                  II.

       We have jurisdiction over (1) the detectives’ interlocutory appeal because it arises from
the denial of a motion to dismiss based on qualified immunity, Mitchell v. Forsyth, 472 U.S. 511,
525–27 (1985), and (2) the City’s appeal because it is inextricably intertwined with the
detectives’ appeal, Courtright v. City of Battle Creek, 839 F.3d 513, 523 (6th Cir. 2016). We
construe the complaint in the light most favorable to Bailey, accept his allegations as true, and
draw all reasonable inferences in his favor. Jackson v. Sedgwick Claims Mgmt. Servs., Inc.,
731 F.3d 556, 562 (6th Cir. 2013) (en banc). We give fresh review to the court’s legal rulings.
Id.

       Search and seizure claim. Qualified immunity shields the detectives from liability in this
§ 1983 constitutional tort action if (1) they did not violate any constitutional guarantees or (2) the
 No. 16-2478                      Bailey v. City of Ann Arbor, et al.                      Page 4


guarantee, even if violated, was not clearly established at the time of the alleged misconduct.
Arrington-Bey v. City of Bedford Heights, __ F.3d __, No. 16-3317, 2017 WL 2432389, at *3
(6th Cir. Feb. 24, 2017). This claim fails at the first step.

        Police officers normally receive qualified immunity if they rely on a judicially secured
warrant. Hale v. Kart, 396 F.3d 721, 725 (6th Cir. 2005). But officers violate the Fourth
Amendment if they make “a false statement knowingly and intentionally, or with reckless
disregard for the truth” in the warrant affidavit “if the allegedly false statement is necessary to
the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978). The same
goes for omissions if the plaintiff makes “a strong preliminary showing that the affiant intended
to mislead the judge by omitting information from the affidavit.” Hale, 396 F.3d at 726–27.

        Bailey has not plausibly alleged that the detectives intentionally deceived the judge about
any fact necessary to the probable cause determination.          Here is how Stanford’s affidavit
described the gunman:

                D. The victim in this robbery was identified as Sang-Chul Choi. He told
        officer McNally that two men wearing masks entered his store and were holding a
        shot gun. The men demanded money and held Mr. Choi at gun point. The men
        took the money from the register which was approximately $1000.00 and three
        bottles of champagne.
                E. Mr. Choi said the man with the shot gun was a Black Male in his late
        teens or early twenty’s. He was about 5[’]6[”] tall and wearing a skeleton sweat
        shirt mask with the hood zipped in the front as a skull. The suspect’s hands were
        exposed and he did not have gloves on. The suspect was wearing blue jeans with
        a symbol on the upper right thigh. The suspect was also wearing a sleeveless
        jacket over the skeleton sweat shirt with a symbol on the upper front left side.
                F. Detective Fitzpatrick obtained a copy of the security video on 04/14/12
        of the robbery and placed the video in Ann Arbor.com and local TV media.

R. 22-1 at 2. Earlier in the affidavit, Stanford described the sweatshirt as a “Black and White
skeleton sweat shirt with hood that zips up in the front and becomes a skull.” Id. And later in
the affidavit, Stanford likewise described the “black and white skeleton sweat shirt with a s[k]ull
hood[] that zips in the front” that Fitzpatrick and he saw in Bailey’s room. Id. at 3.
 No. 16-2478                     Bailey v. City of Ann Arbor, et al.                       Page 5


       In assessing this description, may we measure its accuracy with reference to the transcript
of the state court preliminary examination of Bailey or the store video? No to the first. Yes to
the second.

       As for the transcript, a court ruling on a motion to dismiss “may consider materials in
addition to the complaint if such materials are public records or are otherwise appropriate for the
taking of judicial notice.” New Eng. Health Care Emps. Pension Fund v. Ernst & Young, LLP,
336 F.3d 495, 501 (6th Cir. 2003) (emphasis added). But the district court had a good reason not
to consider this transcript, public though it was and even though the detectives wanted to use it.
The preliminary examination took place on June 7, 2012, nearly two weeks after the detectives
obtained the search warrant. The preliminary examination thus sheds light on the decision to
hold Bailey over for trial but little light on the much earlier warrant decision.

       A different conclusion applies to the video.           Bailey mentioned it throughout his
complaint, and the defendants asked the court to consider the video when they objected to the
magistrate’s report. A central aspect of Bailey’s claims was that the detectives ignored clear
evidence in the security video that the gunman did not look like Bailey and was not wearing a
black skeleton hoodie, as the affidavit claimed. This is not a case where the video captured only
part of the incident or would distort our view of the events. Jones v. City of Cincinnati, 521 F.3d
555, 562 (6th Cir. 2008). It covers the whole thing. From the first frame to the last, the video
contradicts how Bailey describes it and contradicts what Bailey claims the victim told Dortch. In
contrast to other cases, see, e.g., Thomas v. Noder-Love, 621 F. App’x 825, 830 (6th Cir. 2015),
no reasonable jury could watch the video and agree with Bailey that the gunman was wearing a
white coat instead of a black and white skeleton sweatshirt. The video “utterly discredit[s]”
Bailey’s version of events and allows us to ignore the “visible fiction” in his complaint. Scott v.
Harris, 550 U.S. 372, 380–81 (2007).

       That remains so even at the motion to dismiss stage. If Bailey’s pleadings internally
contradict verifiable facts central to his claims, that makes his allegations implausible. See Wall
v. Mich. Rental, 852 F.3d 492, 496 (6th Cir. 2017). That’s why our sister courts have considered
videos when granting motions to dismiss. See, e.g., Garcia v. Does, 779 F.3d 84, 87–88, 97 (2d
Cir. 2015); Hartman v. Walker, __ F. App’x __, 2017 WL 1380608, at *2 (5th Cir. Apr. 18,
 No. 16-2478                    Bailey v. City of Ann Arbor, et al.                        Page 6


2017); Bogie v. Rosenberg, 705 F.3d 603, 608–09, 611–12 (7th Cir. 2013). And that’s why we
do so here.

        No reasonable person who has viewed the video could say that it is deliberately false to
describe the gunman as wearing a black and white skeleton sweatshirt with a hood that looked
like a skull. Nor is it plausible to describe the gunman as wearing a white coat, as Bailey
described the gunman in his complaint. That’s just not what it shows.

        The rest of the gunman’s attire is consistent with how Stanford described it in his
affidavit. True to its word, the affidavit describes the gunman as wearing some sort of “[d]ark
colored vest” or “sleeveless jacket over the skeleton sweat shirt with a symbol on the upper front
left side.” R. 22-1 at 2. Definitely not a white coat. One might describe the gunman’s facial
covering as a white mask with “insect-type/Spiderman eyes.” R. 22 at 4. But it makes more
sense to describe the mask, as Stanford did, as a “hood zipped in the front as a skull,” R. 22-1 at
2, when we see the black zipper running up the middle of the mask from the skeleton sweatshirt.
And we can see the blue jeans with some symbol or design on the upper right thigh in the video
when the gunman walked out of the store. Although Bailey emphasizes that the victim wasn’t
absolutely certain that the gunman was black, the complaint acknowledges that the victim
thought the gunman was black based on the color of his exposed hands. No one disputes that
gunman did not wear gloves. In the end, virtually all of Stanford’s description of the gunman
was not false at all. Indeed, it was quite accurate. Only one potential disparity exists, and it is
hard to prove either way: The affidavit describes the gunman as five foot six inches, while the
witness said he was four inches taller. It is not clear that is false. But it most assuredly is not
deliberately false.

        What is more, even if we delete the parts of the affidavit that Bailey plausibly
challenges—the gunman’s height and the anonymous tip—probable cause still exists to grant a
search warrant. “All that’s needed for probable cause is a fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v. Brown, 857 F.3d 334,
339 (6th Cir. 2017) (quotation omitted). The detectives had already seen a black and white
skeleton sweatshirt similar to the one in the video when Bailey’s mother let them into his room,
and Stanford said so in the affidavit. This was not a generic sweatshirt with a big maize letter
 No. 16-2478                      Bailey v. City of Ann Arbor, et al.                       Page 7


common to many an Ann Arbor closet. It is a distinctive black and white skeleton sweatshirt that
zipped up to form a skull hood. Seeing that distinctive clothing in Bailey’s room gave the
detectives more than the fair probability needed to secure a search warrant for the house—to
seize the sweatshirt and to look for other evidence, perhaps the money or other clothing,
connected to the crime. Cf. United States v. Ruff, 437 F. App’x 448, 451 (6th Cir. 2011); United
States v. Thomas, 223 F. App’x 447, 458 (6th Cir. 2007).

         The district court instead found the affidavit false and misleading because it left out what
the victim allegedly told Dortch and suggested that the victim, not the video, provided the
affidavit’s description of the gunman. But only two lines in the affidavit say that the information
came from the victim: (1) “He told officer McNally that two men wearing masks entered his
store and were holding a shot gun,” and (2) “Mr. Choi said the man with the shot gun was a
Black Male in his late teens or early twenty’s.” R. 22-1 at 2. Those statements are either
consistent with the video, which Stanford referenced immediately after his description of the
gunman, or unnecessary to find probable cause. Other facts in the affidavit perhaps might be
interpreted to read as though Choi provided them to the officers. But it makes no difference
either way because the affidavit acknowledges the surveillance video.

         Judging the search warrant affidavit on “the totality of the circumstances,” as we must,
the affidavit established a strong probability that the detectives would find evidence of the crime
in the house. United States v. Thomas, 605 F.3d 300, 307, 309 (6th Cir. 2010). Adding the
victim’s alleged statements to the affidavit would have contributed little when the claimed
disparities were visibly false.

         Bailey offers no other theory for denying the detectives’ motion to dismiss.            The
“officers’ liability,” in his words, “depends on whether the search of [his] room and subsequent
seizure of his property was executed under a valid warrant.” Appellee’s Br. 31. Because the
search warrant was valid and the affidavit did not contain any knowing falsehoods, we reverse
the district court’s decision denying the motion to dismiss the unreasonable search and seizure
claim.
 No. 16-2478                       Bailey v. City of Ann Arbor, et al.                       Page 8


          Malicious prosecution claim. Bailey’s malicious prosecution claim does not fare any
better. Among other requirements of this claim, he must show an absence of probable cause for
the prosecution. See Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). In permitting this
claim to continue, the district court rested its decision on the supposedly false affidavit. That’s
why the defendants mentioned the malicious prosecution claim early in their brief and then
focused their brief on whether the affidavit was false or misleading. The detectives did not
waive this argument, and its fate is tied to our resolution of the unreasonable search and seizure
claim. We thus reverse the district court’s decision denying the motion to dismiss for the same
reason.

          Monell claim. The City appeals the district court’s denial of its motion to dismiss as well.
Under § 1983, we may hold a city liable for a constitutional tort “if the injury is caused by a
municipal custom or policy, or if the city’s failure to train employees amounts to deliberate
indifference to constitutional rights.” Arrington-Bey, __ F.3d at __, 2017 WL 2432389, at *5;
see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91, 694 (1978). The district court
permitted the claim against the City to proceed in view of its ruling about the unconstitutional
warrant. Having dispatched that claim, we must dispatch this one as well. Bailey points to no
other ground for upholding this claim, meaning our resolution of the one claim resolves the
Monell claim as well.

          One other house-cleaning item. Bailey maintains that, in reviewing a motion to dismiss a
Monell claim, the plausibility standard of Twombly and Iqbal does not apply. He insists that the
“no set of facts” pleading standard articulated in Conley v. Gibson, 355 U.S. 41, 45–46 (1957),
remains good law and applies to this claim. That is wrong. The Supreme Court overruled the
Conley standard in Twombly. 550 U.S. 544, 561–62 (2007). That means district courts may not
rely on contrary language in Petty v. County of Franklin, 478 F.3d 341, 345 (6th Cir. 2007),
which is inconsistent with the Supreme Court’s more recent and precedentially superior
decisions in Twombly and Iqbal.

          For these reasons, we reverse and remand the case for further proceedings consistent with
this opinion.
