Bunkley v. City of Detroit

• Decision Date: 29 August 2018
• Docket Number: No. 17-2223,17-2223
• Citation: 902 F.3d 552
• Parties: Derrick BUNKLEY, Plaintiff-Appellee, v. CITY OF DETROIT, MICHIGAN, et al., Defendants, Latonya Moses; Jade Tanguay; Sergeant Lucas; Marshall Dennis; Calvin Washington, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

902 F.3d 552

Derrick BUNKLEY, Plaintiff-Appellee,

v. CITY OF DETROIT, MICHIGAN, et al., Defendants,Latonya Moses; Jade Tanguay; Sergeant Lucas; Marshall Dennis; Calvin Washington, Defendants-Appellants.

No. 17-2223

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2018

Decided and Filed: August 29, 2018

ARGUED: Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellants. Heather Lewis Donnell, LOEVY & LOEVY, Chicago, Illinois, for Appellee.ON BRIEF: Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellants. Heather Lewis Donnell, LOEVY & LOEVY, Chicago, Illinois, for Appellee.

Before: GUY, BATCHELDER, and BUSH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

In this interlocutory appeal from the denial of the defendants’ motion for summary judgment, the defendants appeal several rulings, one of which concerns qualified immunity. We AFFIRM in part and DISMISS in part.

I.

Detroit Police arrested Derrick Bunkley on a charge of attempted murder, the State of Michigan prosecuted him, and a jury convicted him. But Bunkley was innocent. When the conviction was eventually overturned, Bunkley sued the City of Detroit on a Monell claim, Police Investigator Latonya Moses on a claim of malicious prosecution, and Police Officers Jade Tanguay, Richard Lucas, Marshall Dennis, and Calvin Washington on claims of false arrest and failure to intervene to stop the wrongful arrest. The district court granted summary judgment to the City. But the court denied the individuals’ motions, finding material questions of fact as to probable cause for the arrest or prosecution, Moses’s influence on the decision to prosecute, and the officers’ responsibility to intervene. The court also denied summary judgment on grounds of qualified immunity. See Bunkley v. City of Detroit , No. 16-cv-11593, 2017 WL 4005919 (E.D. Mich. Sept. 12, 2017). The claims remaining for trial allege false arrest and failure to intervene against Tanguay, Lucas, Dennis, and Washington, and malicious prosecution against Moses.

A.

At about 11:30 p.m. on May 3, 2014, a woman named Paris Ainsworth parked her car on the street near her Detroit home. Two men approached her, brandishing guns. She drew her own gun and they shot at her, hitting her twice. But when she shot back, they fled. She called 911 from a neighbor’s house and an ambulance took her to Sinai Grace Hospital. She described the assailants to the responding police officers as "two black males wearing all black."

At that same time, Derrick Bunkley, a 22-year-old black man, was at his mother’s house four miles away playing video games with his younger brothers and posting to Facebook pictures of them doing so. At about 1:30 a.m., Bunkley received a call on his cell phone telling him that his father, Charles Knox, had been shot, so he ran to nearby Sinai Grace Hospital to try to see him.¹ Bunkley sat in the hospital waiting area. He was wearing all black clothing.

Because the Detroit Police Department classified both incidents as "non-fatal shootings," a supervisor, Sergeant Lucas, assigned Officers Washington, Tanguay, and Dennis to investigate both. These officers went first to the Ainsworth crime scene and then to the hospital to talk with her. Ainsworth described her attackers as two black males in their 20s, wearing dark clothing: one dark-skinned, 5'7?, and 200 lbs, and the other light-skinned, 5'4?, and medium build.² Ainsworth thought she might have hit the "thicker," "bigger" man with a gunshot.

With regard to the Knox shooting, these officers did not inspect the crime scene, did not take a statement from Knox at the hospital that night, and did not talk to any doctor about his wounds (Knox had been shot once through each leg, leaving no bullets or fragments). Instead, they assumed that Knox and Bunkley were Ainsworth’s assailants and that Knox, despite his age (47 years old) and light skin, was the man Ainsworth thought she might have shot.

So the detectives went to see Bunkley in the waiting room. Bunkley is a young black man and was wearing black clothing. The officers asked Bunkley for identification, which he provided, though he did not know why they had asked and they did not tell him. The officers left the waiting room, called Sergeant Lucas for permission to arrest Bunkley, and returned a few minutes later. They arrested Bunkley and told him the reason for the arrest was a probation violation. That was untrue and fabricated, as they later admitted. Despite Bunkley’s protests that he had no probation violation, they took him to the Detroit Detention Center where he was incarcerated by 3:00 a.m. A corrections officer later revealed to him that he had been arrested because the police suspected that he and his father had committed the Ainsworth shooting.

The next morning, Officer Latonya Moses was assigned as the Lead Investigator of the Ainsworth shooting. That afternoon, she and Investigator Glenda Fisher showed Ainsworth two photo arrays—one with Knox and another with Bunkley. A defense attorney attended the photo-array lineups and found nothing suggestive. On the first array, targeting Knox, Ainsworth said, "[N]o, he was younger." Moses then showed her the second array and Ainsworth chose Bunkley. At the time of this identification, however, Bunkley had already been arrested.

Later, Moses met with Bunkley at the Detention Center to take a statement. Bunkley denied any involvement in or knowledge of the Ainsworth shooting, told Moses that he was at his mother’s house at the time in question (i.e., during the Ainsworth shooting), and insisted that he could prove his alibi with his posted, time-stamped Facebook pictures. He even gave Moses his login information so she could corroborate this alibi. Moses looked at the Facebook page and obtained warrants for Bunkley’s phone records and Facebook page, but claimed not to have seen the photos until the first day of trial. There is no dispute that Bunkley had posted photos of himself at his mother’s home during the time of the Ainsworth shooting, just as he had claimed, which was strong evidence of his alibi.

The next day, Moses met with prosecutor Matthew Penney and recommended that they prosecute Bunkley for attempted murder. During that meeting, Moses falsely asserted that: (1) Bunkley and Knox arrived at the hospital together; (2) Knox refused to turn over the bullets that wounded him; and (3) hospital security had detained Bunkley, implying that he would have fled. Moses knew that these assertions were untrue. Moses also omitted the fact that an ambulance had picked up Knox alone, seven miles from Ainsworth’s house; that Ainsworth had rejected the Knox photo array because the men depicted were too old; and Bunkley’s Facebook-post alibi. Penney testified that he relied on Moses’s information in deciding to prosecute Bunkley.

At trial, Moses sat at counsel table and assisted Penney. Moses also testified and, during that testimony, suggested that Bunkley’s mother had changed the time stamp on the Facebook photos and said that there "was no phone activity whatsoever" on Bunkley’s phone at the time of the Ainsworth shooting. Both of these were untrue. The jury convicted Bunkley of assault with intent to commit murder and the court sentenced him to 15 to 30 years in prison. Bunkley’s petition for post-conviction relief included forensic testing that verified that the Facebook photos of him at his mother’s house were taken by his phone between 11:40 and 11:44 p.m. and legitimately posted to Facebook. The court granted the petition and the prosecutor dismissed all charges. By then, Bunkley was 24 years old and had spent nearly two years in prison.

B.

Bunkley sued and the defendants moved for summary judgment. The officers challenged the false-arrest claim by arguing that they had probable cause to arrest Bunkley, but the district court found genuine disputes of material fact that prevented summary judgment on this issue:

[V]iewing the facts in the light most favorable to [Bunkley], ... there is a genuine issue of material fact as to probable cause. A reasonable jury could find that the arresting officers lacked probable cause to arrest [Bunkley]. The [c]ourt considers the facts known to the arresting officers at the moment of arrest. Notably, [Bunkley] was arrested between 2:00 a.m. and 3:00 a.m.—i.e., before Moses conducted the photo lineup and learned of [Bunkley]’s Facebook alibi.

What facts did the officers know at the moment of arrest? On the one hand, Ainsworth told the officers that she may have shot one of her assailants, and [they knew] Knox had been shot. Also, both Knox and [Bunkley] were black males wearing dark clothing. On the other hand, Knox was much older and had a lighter complexion than Ainsworth’s second assailant. Knox was shot several miles away from Ainsworth’s house. [Bunkley] and Knox did not enter the hospital together. And the description ‘black males in twenties in dark clothing’ is vague. How many thousands of black men in their twenties live in and around Detroit? And how many of those wear dark clothes? Too many for summary judgment. There is a genuine issue of material fact as to probable cause.

Bunkley , 2017 WL 4005919, at *3 (citation omitted).

On the malicious-prosecution claim, Moses argued that she did not influence the decision to prosecute Bunkley and, even if she had, there was probable cause to prosecute. Again, the district court found that genuine disputes of material fact prevented summary judgment:

A reasonable jury could find that Moses participated in or influenced the decision to prosecute. Moses was the lead investigator. She sent a warrant packet to the prosecutor. She took the stand. She personally assisted the prosecutor during trial. Perhaps Moses did not make the ultimate decision to prosecute, but a reasonable jury could find that she influenced it.

Id. at *4. Regarding probable cause to prosecute, the court explained:

There were several conflicting pieces of

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