Ricks v. Pauch
| Decision Date | 13 October 2021 |
| Docket Number | 20-1778 |
| Parties | Desmond Ricks, et al., Plaintiffs-Appellees, v. David Pauch, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Before: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.
Desmond Ricks was convicted of second-degree murder based in part on a law enforcement report that matched bullets from a crime scene to a gun found in the home he shared with his mother. More than two decades later, however, the report was determined to be erroneous. After his conviction was overturned, Ricks sued three officers involved in his investigation. In addition to Michigan common law claims Ricks asserted claims under 42 U.S.C. § 1983 for fabrication of evidence, malicious prosecution, and withholding of evidence. As to those latter claims, the district court denied the officers' motion for summary judgment based upon qualified immunity. The officers now seek interlocutory review with respect to the qualified immunity denials. We affirm in part, reverse in part, and remand for further proceedings.
A Gerry Bennett was shot to death in 1992 in the parking lot of a Detroit restaurant. The parties dispute what transpired that afternoon. According to Ricks, he and Bennett drove to the restaurant together. When they arrived, Ricks stayed in the car while Bennett and an unidentified man (who arrived in a separate vehicle) entered the restaurant together. Ricks alleges that he saw Bennett and the man exit the restaurant approximately five to ten minutes later, at which point the unidentified man shot Bennett in the stomach and head. The defendant officers contend that Ricks entered the restaurant with Bennett. After the men exited the restaurant, the men argued, at which point Bennett was shot. According to the officers, no vehicle other than Bennett's was in the parking lot. The parties agree, however, that Ricks fled the scene after the shooting, and that he removed his jacket as he ran away.
Two days after the shooting, Ricks was arrested at the home he shared with his mother. Ricks's mother told officers that her son was not involved in the murder. She also said that the only gun in the home, which she kept in her bed under her pillow, belonged to her. With Ricks's mother's permission, officers seized the handgun, a Rossi .38 Special 5-shot revolver. Donald Stawiasz, the officer in charge of the investigation, sent the gun to a crime lab for testing.
Around the same time, a medical examiner performed an autopsy on Bennett. During the autopsy, the examiner removed two bullets from Bennett's body-one from his brain and one from his spine. The examiner placed each bullet into separate envelopes. He then gave them to a liaison with the Detroit Police Department, who in turn gave them to Stawiasz. Stawiasz put the bullets in a larger evidence envelope and sent them to David Pauch, a firearm and toolmark examiner in the Department's crime lab.
Pauch examined both bullets recovered from Bennett's body and the Rossi handgun. Part of the examination involved determining the "rifling characteristics" of each bullet, including the number of "lands" and "grooves," the unique markings a gun barrel makes on a bullet it fires. Together with "twist"-the direction (right or left) the bullet spins when fired-lands and grooves are indicators used to classify a bullet and match it to the gun from which it was fired. Pauch's report indicated that the Rossi handgun was classified as "6R," meaning bullets fired from the gun have six lands and grooves that show rightward twist. On the evidence bullets removed from Bennett, however, Pauch initially was able to identify only "traces of lands and grooves"- meaning he could not determine the number of markings-because the bullets were "damaged." Pauch's report indicates he then performed a microscopic analysis of the test and evidence bullets and concluded that all four bullets were fired from the Rossi handgun. After an independent comparison of the respective bullets, Pauch's supervisor, Robert Wilson, reached the same conclusion and signed off on Pauch's report.
Following his arraignment, Ricks retained David Townshend, a retired Michigan State Police firearms examiner, as an expert. Stawiasz brought the evidence to Townshend's lab. Townshend test-fired the Rossi handgun and microscopically examined his test bullets and the evidence bullets that Stawiasz provided. He concluded that the evidence bullets were fired from the Rossi handgun. At the time, Townshend believed the bullets Stawiasz gave him may have been test bullets because they were in "very good condition" and "didn't look like" they had been removed from a victim. But when he asked Stawiasz if they were the "evidence bullets," Stawiasz responded affirmatively. Townshend, however, did not make note of this inquiry in his report.
The ballistic evidence would be paramount at Ricks's trial. During closing arguments, the prosecutor emphasized that the case "[came] down to really one thing, one piece of the evidence, and that is this gun here." The Rossi handgun the prosecutor explained, was the gun that killed Bennett and the gun "found at [Ricks's] house." The jury convicted Ricks of both second-degree murder and a felony firearm offense, and the court issued a sentence of 32 to 62 years of imprisonment. Ricks's direct appeals were unsuccessful, as was his first motion in state court for relief from judgment.
B. In June 2016, Ricks filed a successive motion in state court for relief from judgment. The basis of his motion was an affidavit by Townshend that questioned the legitimacy of the evidence bullets he examined in conjunction with Ricks's prosecution. A year earlier, the University of Michigan Law School's Innocence Clinic had sent Townshend digital photographs of the evidence bullets allegedly recovered from Bennett. According to Townshend, the bullets shown in the photos were "severely mutilated and extensively damaged" and were not the ones he examined previously. The bullets, moreover, appeared to be "in such a mutilated and damaged condition" that it was "doubtful that a positive identification with a suspect firearm would be possible." Accordingly, Townshend recommended "[a] new examination of the evidence."
The trial court ordered the Michigan State Police Crime Lab to re-evaluate the evidence bullets. Dean Molnar, the officer assigned to perform the examination, was unable to examine the Rossi handgun or create test bullets because the Detroit Police Department previously destroyed the gun. Molnar could however, examine the evidence bullets. But his initial analysis was inconclusive. Although Molnar was able to identify the bullets as .38 caliber and as showing a right twist, he could not classify the bullets more definitively (that is, he could not count the lands and grooves) or say whether they were fired from the same gun due to damage to the bullets. After the Michigan State Police instructed Molnar to perform additional testing, Molnar determined that while one bullet was still too damaged to count the lands and grooves, the other bullet had five lands and grooves with a right twist.
Based on Molnar's findings, the trial court granted Ricks's motion. A 5R bullet, the court explained, could not have been fired from a 6R gun like the Rossi handgun, which contradicted the Department's earlier conclusions and "undermine[d] the reliability of the firearms evidence used to convict" Ricks. The court thus vacated Ricks's convictions and ordered a new trial. And when the State of Michigan declined to prosecute, the case against Ricks was dismissed.
C. After his release, Ricks and his two daughters sued Pauch, Wilson, and Stawiasz. Ricks also sued the City of Detroit, but the parties later stipulated to dismiss the City as a defendant. As relevant here, Count I, which invoked § 1983, alleged that the officers violated Ricks's constitutional rights by fabricating evidence, engaging in malicious prosecution, and withholding evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). As to his fabrication of evidence claim, Ricks alleged that the officers did so in two different ways: first, that all three officers falsified evidence during the Department's examination to create a positive match between the evidence bullets and the Rossi handgun; and second, that Stawiasz deliberately gave Townshend test bullets rather than the real evidence bullets.
During discovery, each party's experts examined the evidence bullets. Ricks's first expert, Townshend, determined that both bullets "exhibit[ed] class rifling characteristics of 5 lands and grooves with a right twist." He therefore concluded that the Rossi handgun, which "has class rifling characteristics of 6 lands and grooves with a right twist," could not have been the gun that fired the two evidence bullets. Townshend also described the "misidentification" of the evidence bullets as "a catastrophic error" that "would never be made by a competent qualified firearms examiner, let alone two firearm examiners." He further opined that "an error of this magnitude could only have been caused by incompetency of the firearms examiners, or a deliberate attempt to mislead on the part of the two Officers involved in this case."
Ricks's other expert, David Balash, a former firearm and toolmark identification expert for the Michigan State Police, reached similar conclusions. Although he found the evidence bullets to be "badly damaged," he was able to discern that each had five lands and grooves with a right twist. And because the Rossi handgun "has class rifling specifications of 6...
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