                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 14a0292p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


 DANIEL NEWMAN, individually,                          ┐
                                 Plaintiff-Appellee,   │
                                                       │
                                                       │       No. 14-1455
        v.                                             │
                                                        >
                                                        │
 TOWNSHIP OF HAMBURG, et al.,                           │
                                         Defendants, │
                                                        │
                                                        │
 ERIC CALHOUN, in his individual capacity;              │
                               Defendant-Appellant. │
                                                        ┘
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                   No. 2:12-cv-10258—Arthur J. Tarnow, District Judge.
                                Argued: December 3, 2014
                           Decided and Filed: December 12, 2014

                 Before: SILER, SUTTON, and STRANCH, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Josephine A. DeLorenzo, PLUNKETT COONEY, P.C., Bloomfield Hills,
Michigan, for Appellant.  Wolfgang Mueller, OLSMAN MUELLER, WALLACE &
MACKENZIE, P.C., Berkley, Michigan, for Appellee. ON BRIEF: Josephine A. DeLorenzo,
PLUNKETT COONEY, P.C., Bloomfield Hills, Michigan, for Appellant. Wolfgang Mueller,
OLSMAN MUELLER, WALLACE & MACKENZIE, P.C., Berkley, Michigan, for Appellee.




                                              1
No. 14-1455             Newman v. Twp. of Hamburg, et al.                       Page 2

                                      _________________

                                           OPINION
                                      _________________

       SUTTON, Circuit Judge. Daniel Newman filed this malicious prosecution action under
§ 1983 and state law, accusing Michigan police officer Eric Calhoun of deliberately
misrepresenting a witness’s statement when he presented an affidavit to a state judge in support
of an arrest warrant for murder. The district court rejected Calhoun’s motion for summary
judgment based on qualified immunity, and Calhoun filed this interlocutory appeal. Because
ample evidence of probable cause for Newman’s arrest exists, and no evidence reveals a
deliberate or reckless misrepresentation by Calhoun, we reverse.

                                                I.

       Someone murdered Henry Chappelear shortly after midnight on February 28, 1992.
Sergeant Eric Calhoun of the Hamburg Township police led the criminal investigation. Before
long, Daniel Newman became the primary suspect based on several leads. Ballistics showed that
Newman’s gun was the murder weapon, which police found in a duffle bag. The duffle bag not
only contained Newman’s gun, but it also had hairs in it similar to Newman’s. A witness, Ben
Masters, said that he saw two young men with light brown hair drive by Chappelear’s home in a
car much like Gary Kulpa’s not long before the murder. Both Newman and his friend Kulpa had
light brown hair.

       In Calhoun’s affidavit supporting his request for a warrant to arrest Newman, he
presented this and other evidence. The judge found probable cause, and the police arrested
Newman. A jury convicted Newman of murder.

       Fifteen years later, a panel of this court granted Newman’s petition for a writ of habeas
corpus, concluding that the evidence presented at trial did not suffice to prove his guilt beyond a
reasonable doubt. See Newman v. Metrish, 543 F.3d 793 (6th Cir. 2008). Now a free man,
Newman brings this malicious prosecution action against Sergeant Calhoun under § 1983 and
state law. He claims Calhoun’s affidavit purposefully distorted Masters’ statement. Without the
misrepresentation about when Masters saw the car drive by, Newman says, no probable cause
No. 14-1455             Newman v. Twp. of Hamburg, et al.                     Page 3

would have existed for his arrest and prosecution. Calhoun moved for summary judgment on
qualified immunity grounds. The court rejected the motion, holding that genuine issues of
material fact remained, prompting this interlocutory appeal.

                                               II.

       Summary judgment is proper if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review de
novo the district court’s application of that standard. T.S. v. Doe, 742 F.3d 632, 635 (6th Cir.
2014). Because Sergeant Calhoun raises legal issues regarding qualified immunity that are
“inextricably intertwined” with the rest of his arguments, we have jurisdiction over the entire
interlocutory appeal, including his state law claims. See Plumhoff v. Rickard, 134 S. Ct. 2012,
2019 (2014); Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998).

       Section 1983 claim. Sergeant Calhoun is entitled to qualified immunity if he did not
violate Newman’s clearly established constitutional rights. Pearson v. Callahan, 555 U.S. 223,
231 (2009).   The Fourth Amendment conditions warrants on probable cause and prohibits
unreasonable seizures. A police officer violates those restrictions only when his deliberate or
reckless falsehoods result in arrest and prosecution without probable cause.      See Sykes v.
Anderson, 625 F.3d 294, 312 (6th Cir. 2010). The resulting claim, what might be called an
“unreasonable prosecutorial seizure” claim, is traditionally known as a “malicious prosecution”
claim. Id. at 310 (internal quotation marks omitted).

       Newman’s claim suffers from two serious weaknesses. In the first place, no reasonable
jury could find that Sergeant Calhoun deliberately or recklessly mischaracterized Masters’
statement in his request for a warrant. The modest differences between Calhoun’s affidavit and
Officer Patrick DeBottis’s account of the Masters interview do not make the “substantial
showing” needed to support the requisite intent. Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir.
2003). Calhoun’s affidavit reports that Masters saw a car like Kulpa’s speed by Chappelear’s
place “[a]t approximately 5:00 p.m. on or about February 27.” R. 21-13 at 6 (Page ID # 319).
Officer DeBottis recalled that Masters said he saw the car sometime on either February 27 or 28.
Calhoun remembers Masters being more specific, giving a 5:00 p.m. approximation, and
DeBottis remembers him being more vague. But that does not establish a contradiction. The
No. 14-1455               Newman v. Twp. of Hamburg, et al.                     Page 4

differences between the officers’ accounts are minor. Calhoun’s affidavit “was not so far off the
mark” from DeBottis’ report to permit an inference of deliberate or reckless disregard for the
truth. Hutsell v. Sayre, 5 F.3d 996, 1004 (6th Cir. 1993). Any discrepancy at worst shows
negligence or perhaps a lack of attention to detail, which does not amount to malicious
prosecution. See, e.g., Wolf v. Winlock, 34 F. App’x 457, 461 (6th Cir. 2002); Packer v. City of
Toledo, 1 F. App’x 430, 434 (6th Cir. 2001). No reasonable jury could find that Sergeant
Calhoun intentionally or recklessly played fast and loose with the facts.

       In the second place, the alleged inaccuracy does not change the probable cause calculus
anyway. “Probable cause exists if the facts and circumstances known to the officer warrant a
prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S.
98, 102 (1959); see also Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The rest of the
evidence amply established probable cause for Newman’s arrest and prosecution, eliminating
any claim that Sergeant Calhoun’s recounting of Masters’ statement made a difference in his
arrest and prosecution.

       Consider the other uncontested facts in Sergeant Calhoun’s affidavit.             Ballistics
confirmed that one of the murder weapons was a handgun Newman purchased a few months
before. The other murder weapon was a twelve-gauge shotgun, and police found a twelve-gauge
shotgun in the same duffle bag as Newman’s handgun. Brown human hair in the bag was similar
in color to Newman’s hair, and reddish animal fur in the bag was similar to the color of the fur of
one of Newman’s dogs. The bag also contained two stolen walkie-talkies that police suspected
were stolen by Newman’s friend Kulpa. And Newman had bought drugs from Chappelear and
owed him money, showing that they knew each other. This evidence—all without any reference
to Masters’ statement—readily supports probable cause and thus readily defeats a malicious
prosecution claim.

       Newman responds that only a jury may make the probable cause determination. He is
half right. If he presents sufficient evidence that would allow a reasonable jury to find that no
probable cause existed for his arrest, he indeed may take his claim to a jury. But the point of
Civil Rule 56 is to prevent claims from going to a jury when the court, after drawing all
inferences in favor of the non movant (here Newman), determines that no reasonable jury could
No. 14-1455              Newman v. Twp. of Hamburg, et al.                       Page 5

make such a finding. That is this case. Where the requisite material facts are not in dispute, as is
true here, probable cause “retains its legal character” and must be decided by the court. Hale v.
Kart, 396 F.3d 721, 728 (6th Cir. 2005). As shown, ample uncontradicted evidence supported
Newman’s arrest and prosecution for murder. In this instance, no reasonable jury examining all
the evidence—the guns, the hair, the walkie-talkies, the drug connection—could find that the
authorities lacked probable cause.

       Newman persists that the Sixth Circuit’s habeas decision based on insufficiency of the
evidence shows that probable cause did not exist. But this argument conflates two standards of
proof—the modest requirement that probable cause exist to prosecute someone and the stringent
requirement that proof beyond a reasonable doubt exist to find him guilty. See United States v.
Ventresca, 380 U.S. 102, 107 (1965). The court granted Newman’s petition because, without
more evidence placing him at the scene of the crime, reasonable doubt remained. Newman,
543 F.3d at 797. To be sure, the panel said the evidence amounted only to a “reasonable
speculation” Newman was present. Id. But, contrary to Newman’s reading, this was not a
reference to the Fourth Amendment’s “reasonable suspicion” standard. Read in context, the
panel was referring to reasonable doubt in the sense of whether the State had met its burden of
establishing proof beyond a reasonable doubt of Newman’s guilt—the only issue before it. In a
malicious-prosecution action, however, reasonable doubt is not the question. See Zantello v.
Shelby Twp., 277 F. App’x 570, 572 (6th Cir. 2008). “Because there is no requirement that the
defendant to a malicious-prosecution charge must have evidence that will ensure a conviction,
not every failed criminal prosecution will sustain a subsequent malicious-prosecution suit.”
Harris v. United States, 422 F.3d 322, 327 (6th Cir. 2005) (internal quotation marks omitted).
That perfectly describes Newman’s case. Our prior opinion held only that there was insufficient
evidence to convict Newman beyond a reasonable doubt. It said nothing about probable cause.

       Michigan Law. Newman’s state-law claim for malicious prosecution fails for similar
reasons. Under Michigan law, Newman must show an absence of probable cause, and he must
show “malice.” See Matthews v. Blue Cross & Blue Shield of Mich., 572 N.W.2d 603, 609–610
(Mich. 1998).      That requires evidence that the officer “knowingly sw[ore] to false
facts . . . without which there is no probable cause,” Payton v. City of Detroit, 536 N.W.2d 233,
No. 14-1455              Newman v. Twp. of Hamburg, et al.                    Page 6

242 (Mich. Ct. App. 1995), a standard that is more demanding than establishing mere
recklessness. On this record, no reasonable jury could find that Sergeant Calhoun deliberately
misstated the facts in his affidavit. And at any rate, plenty of other evidence of probable cause
existed, as just shown. Newman’s claim under Michigan law fares no better than his federal one.
It fails too.

        For these reasons, we reverse.
