Jones v. Clark Cnty.

• Decision Date: 18 May 2020
• Docket Number: No. 19-5143,19-5143
• Citation: 959 F.3d 748
• Parties: David JONES, Plaintiff-Appellant, v. CLARK COUNTY, KENTUCKY ; Berl Perdue, Jr. and Lee Murray, Individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

959 F.3d 748

David JONES, Plaintiff-Appellant,

v.CLARK COUNTY, KENTUCKY ; Berl Perdue, Jr. and Lee Murray, Individually, Defendants-Appellees.

No. 19-5143

United States Court of Appeals, Sixth Circuit.

Argued: October 25, 2019

Decided and Filed: May 18, 2020

CLAY, Circuit Judge.

Plaintiff David Jones appeals from the district court's order granting summary judgment to Defendants Clark County, Kentucky; Clark County Sheriff Berl Perdue; and Clark County Sheriff's Deputy Lee Murray, in this case alleging malicious prosecution under 42 U.S.C. § 1983. For the reasons set forth below, we REVERSE IN PART and AFFIRM IN PART the district court's order. We REVERSE the district court's order with respect to the grant of summary judgment and qualified immunity for Murray and REMAND the case for trial. We AFFIRM the district court's order granting summary judgment with respect to all other Defendants.

I. BACKGROUND

A. Factual History

In October 2013, Lexington, Kentucky Metro Police Detective ("LMPD") David Flannery tracked the source of a thirty-nine-second video of child pornography to a device that had connected to the internet via a router with an IP address located in Clark County, Kentucky. The video was being shared via the Ares peer-to-peer file-sharing network. Detective Flannery proceeded to contact Clark County Sheriff's Deputy Lee Murray about the video. Deputy Murray then obtained a subpoena of AT&T Internet Services, the internet service provider associated with the router's IP address. AT&T identified Plaintiff David Jones as the subscriber associated with the IP address and provided Murray with Jones' personal information, including his address in Winchester, Kentucky—located in Clark County. Based upon this information, Deputy Murray secured a search warrant for Jones' address. He noted in his affidavit in support of the search warrant that Jones was not yet a "suspect" in the case and that Jones did not necessarily have "possession" of the device(s) connected to the child pornography. R. 8-3, PageID # 106. Murray claimed in his deposition during discovery in the present case that he did not identify a "suspect" in his affidavit because "there could be some other occupants inside the residence besides the person that [the IP address is] owned by or leased to." R. 62-2, PageID # 617. According to the affidavit, the purpose of the search was to locate the electronic device(s) used to upload and/or store the illegal video; as well as any "hard copies of images of minors engaged in sexual performances" or other proof of child pornography in the residence. R. 62-10, PageID # 1134.

Murray and his supervisor, Captain Brian Caudill, executed the search warrant along with three other deputies and seized a tablet, cell phone, printer, modem, Xbox gaming console, and three DVDs from Jones' residence. The officers handcuffed Jones as soon as they entered his home and after completing the search they brought him to the Sheriff's Office for further questioning. In his deposition testimony Murray does not clarify the basis for this arrest, explaining only that "there was a download of child pornography associated with an IP address of a router that was in his apartment," and that when Murray arrived at the apartment Jones "was the only one there." R. 62-2, PageID # 630.

In his deposition, Deputy Murray also admitted that he knew that "child pornography could be downloaded from an IP address by means other than the person who lived at that address actually being involved in that download." R. 62-2, PageID # 631.¹ Murray's Uniform Citation for Jones' arrest states that: "The suspect was arrested and taken to the [Clark County Sheriff's Office] where he was interviewed. He states that no other person has the password to his computer tablet, to his wireless modem and that no one uses his cell phone. He stated on Oct. 11, 2013 he was home alone, he also states that he has not downloaded any child pornography." R. 62-10, PageID # 1124. This section of the Uniform Citation is entitled "Charges and Post-arrest Complaint." Id.

Jones' case was presented to a grand jury on December 12, 2013. In his testimony before the grand jury, Murray clarified that he arrested Jones because of the evidence that a download of child pornography occurred at the IP address associated with Jones' residence. Murray testified that it was not until after Jones was Mirandized that Jones revealed the facts asserted in the Uniform Citation to Murray—that Jones lived alone, was alone the night of the download, and had not shared his router password with anyone.² Jones was subsequently indicted by the grand jury on one count of promoting a sexual performance by a minor under sixteen years of age.

Back in December 2013, Murray had brought Jones' cell phone and computer to the LMPD for forensic testing. On January 11, 2014, after Jones was indicted, Murray received the results of the forensic testing. It failed to yield a copy of the pornographic video that had been uploaded at Jones' IP address. According to Murray, the tablet was "too new" for a complete forensic exam to be performed. R. 62-2, PageID # 678–79. The phone was thoroughly examined, but all that was discovered was an audio file that appeared to have been partially downloaded through the Ares program.

There is significant ambiguity in the record as to whether the two prosecutors in Jones' case were informed of the results of this forensic test or whether Jones' public defender, Valetta Browne, was as well. Murray asserted in deposition testimony that prosecutor Heidi Engel "was made immediately aware as soon as we got the report back." R. 62-2, PageID # 676. Murray does not provide further details on when this conversation took place and when asked what Engel's reaction to the negative forensics results were, Murray stated "I don't remember what she said." Id. at PageID # 684. Moreover, Prosecutor Charles Johnson admitted in deposition testimony that the copy of Murray's investigation notes that the prosecutors had in their case file did not include Murray's January 11, 2014, entry indicating that the forensic results on the devices came back negative for child pornography. The prosecutors' copy of Murray's notes ends at the entry indicating that the devices have been sent to LMPD for testing. While Johnson remembers being informed that the test results were negative, he has no documentation showing when he or prosecutor Engel were informed of the results.

Engel initially testified in her deposition that while she remembers "a time that [she] realized that the devices had been tested," she does not actually recall being informed of the test results nor does she recall turning them over to Jones' public defender. R. 62-7, PageID # 975–76. She does say that in general "[w]e have open discovery here, have had since I've been here. We copy everything we have and give it to the defense." Id. at PageID # 976. Later in her deposition, she appears to contradict herself with respect to being informed of the test results, stating "I recall Detective Murray saying that the results were there weren't any – the image and the video ... was not on the phone nor the tablet." R. 62-7, PageID # 979–80. However, at no point does she state when Detective Murray informed her of the results. In fact, when asked if she believed that there was documentation of when Murray told her about the results she said "[p]robably not, no." Id. at PageID # 1013. She also claims, when asked a second time about communicating the test results to Jones' public defender, "I believe that there were discussions that the analysis of the devices did not reveal the image that was found in the file-sharing program or any other pornographic images, and I believe that is discussed as well in that motion to dismiss." Id. at PageID # 1019.³ In any event, the prosecutors continued the proceedings against Jones.

In November 2014, Browne commissioned an alleged forensics expert, Lars Daniel, to conduct a forensic analysis of Jones' phone and tablet. Like the Lexington police, he also found no evidence of child pornography on either of the devices. Unlike the Lexington report he found no evidence "that the defendant ever used a peer to peer file sharing program such as Ares." R. 4-4, PageID # 56. Browne partially based her motion to dismiss on Daniel's negative results. This motion was denied. The court did decrease Jones' bond, and after posting the reduced bond, Jones was released from jail on December 15, 2014—nearly fourteen months after his arrest.

On April 2, 2015, the charges against Jones were dismissed without prejudice, on the Commonwealth's own motion. Engel stated that at that point:

[There were] competing expert reports with respect to whether or not that device had the Ares access, and that complicated the facts even more, and we felt like in the spirit of justice that this case needed to be, you know, investigated perhaps. At that point there's competing expert reports, and you're looking at a standard of beyond a reasonable doubt, and we believed in the fairness of justice that we would dismiss it without prejudice. If additional evidence was uncovered that changed that, then obviously that matter could be addressed in the future.

R. 62-7, PageID # 1022–23. Johnson asserted in his deposition in this case that the decision to dismiss was made because the prosecutors determined that a conviction was unlikely given the conflicting forensic evidence (i.e. , the state's evidence of the Ares downloaded music file and the Daniel report). He said of the Daniel report:

A: [I]t was different from Lexington to the extent that there was no Ares sharing file. The reason that's important is the Lexington Police Department says there was one; the defendant says there was not. That's an issue that is a provable omission or the ability to impeach someone that indicates their guilt. The new report said it wasn't there, and that was what I considered to be a

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