King v. Harwood et al

Filing 44

MEMORANDUM AND OPINION ORDER by Magistrate Judge Colin H. Lindsay on 12/4/2017 denying 34 Motion to Stay. The Court will issue a separate ruling on KSP's motion to quash in due course. cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-762-GNS

SUSAN JEAN KING,

Plaintiff,

v.
TODD HARWOOD, et al.,

Defendants.

Memorandum and Opinion Order
Before the Court are two motions – a motion filed by defendant Todd Harwood
(“Harwood”) to stay District Court proceedings (DN 34) pending the resolution of his petition
for Writ of Certiorari and a motion to quash a subpoena duces tecum (DN 36) by a former
defendant, the Kentucky State Police (“KSP”). Oral arguments were held on November 1, 2017.
For the following reasons, the Court DENIES Harwood’s motion to stay proceedings. Because
the merits of KSP’s motion to quash rest on entirely different law, the Court will issue a separate
ruling on KSP’s motion.
I. Factual Background and Procedural History
A. Factual Background
This action has its roots in a 2006 investigation and purported resolution of a cold case.
(DN 1, #6.) In November 1998, police pulled the body of Kyle Breeden (“Breeden”) out of the
Kentucky River near Gratz, Kentucky. (Id.) Breeden had been shot twice in the back of the
head with a gun capable of chambering .22 caliber rounds and had his legs bound with a guitar
amplifier cable before being thrown into the river. (Id.) Although Breeden’s ex-girlfriend, the
electric guitar player Susan King (“King”), was among the suspects the police investigated, they
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could not obtain a search warrant of King’s home. (Id. at 7–8.) At the time, no one was arrested
for Breeden’s murder. (Id. at 7–8.) The case sat dormant for nearly seven years until 2006, when
it was assigned to detective Harwood. King v. Harwood, 852 F. 3d 568, 572 (6th Cir. 2017).
Harwood promptly obtained a search warrant of King’s home – and subsequently a
second – using information similar to the information with which the police had failed to obtain a
warrant years prior. (DN 1, #8); King, 852 F. 3d at 574. The evidence obtained from warrants
included bullet holes in King’s kitchen floor made by .22 caliber rounds and over one hundred
twenty-five bullets recovered from a tree in King’s backyard. (DN 1, #11); King, 852 F. 3d at
574.

Based on the warrants’ results, Harwood testified before a grand jury to obtain an

indictment against King for Breeden’s murder, and according to King, gave false testimony.
(DN 1, #12); King, 852 F. 3d at 575. Such “false testimony” included a failure to mention
King’s amputated leg and that several ballistics analyses of the bullets recovered from King’s
home did not provide conclusive evidence that she murdered Breeden. (DN 1, #12); King, 852
F. 3d at 575. The grand jury indicted King for Breeden’s murder. At a subsequent grand jury
hearing at which Harwood also testified, King was also indicted for tampering with physical
evidence. (DN 1, #13); King, 852 F. 3d at 575. In 2008, King entered an Alford plea, under the
terms of which she was sentenced to ten years of incarceration. King, 852 F. 3d at 575.
In May 2012, a known murderer named Richard Jarrell (“Jarrell”) allegedly confessed to
a Louisville Metro Police (“LMPD”) detective that he was the one who had killed Breeden. (DN
1, #16); King, 852 F. 3d at 575–76. Harwood met with Jarrell, who later recanted his purported
confession; King alleges that Harwood intimidated Jarrell into the retraction. (DN 1, #17–18);
King, 852 F. 3d at 576. Nevertheless, the LMPD detective to whom Jarrell had allegedly
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confessed forwarded a copy of Jarrell’s confession to the Kentucky Innocence Project, which
began work on attempting to overturn King’s conviction. King, 852 F. 3d at 576. King’s claim
worked its way up to the Kentucky Court of Appeals which, in July 2014, vacated King’s Alford
plea. Id. See also King v. Com., 2014 WL 3547480 (Ky. Ct. App. July 18, 2014). The criminal
case against King was formally terminated on October 9, 2014. King, 852 F. 3d at 576.
B. Procedural History
King filed the instant action under 42 U.S.C. § 1983 on October 1, 2015, alleging
malicious prosecution under the Fourth Amendment and other charges against Harwood, the
KPS, several of Harwood’s supervisors, and other related parties. (DN 1.) On June 1, 2016, this
Court granted the defendants’ motion for summary judgment on the grounds that (1) King’s
claims were time-barred by the one year statute of limitations, and alternatively, that (2) all
defendants were entitled to qualified immunity. King, 852 F. 3d at 576–77. See also King v.
Hardwood, 2016 WL 309044 (W.D. Ky. June 1, 2016).
On appeal, the Sixth Circuit reversed this Court’s opinion in part and affirmed it in part.
First, it determined that the one year statute of limitations had begun to run on the day the
criminal charges were formally dismissed (October 9, 2014), so King’s complaint was not timebarred. King, 852 F. 3d at 578–79. Second, it held that Harwood did not have absolute
immunity protecting him from suit by King, as Harwood’s actions exceeded the conduct that the
United States Supreme Court held was protected in Rehberg v. Paul, 556 U.S. 356 (2012), a case
concerning the scope of testimonial immunity at grand jury proceedings. King, 852 F. 3d at
587–90. Formulating a new exception to the long-held rule that a grand jury indictment creates
an unrebuttable presumption of probable cause, the Sixth Circuit held:
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[W]here (1) a law-enforcement officer, in the course of setting a prosecution in
motion, either knowingly or recklessly makes false statements (such as in
affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false
statements and evidence, together with any concomitant misleading omissions,
are material to the ultimate prosecution of the plaintiff; and (3) the false
statements, evidence, and omissions do not consist solely of grand-jury testimony
or preparation for that testimony (where preparation has a meaning broad *588
enough to encompass conspiring to commit perjury before the grand jury), the
presumption that the grand-jury indictment is evidence of probable cause is
rebuttable and not conclusive
Id. at 587–88. The Sixth Circuit found that at the present stage of litigation, King had satisfied
its new test, and it remanded the case back to this Court for further proceedings on King’s §1983
malicious prosecution and state law claims. Id. at 591–92. It did, however, affirm this Court’s
grant of summary judgment in favor of the defendants for King’s claims against all defendants
other than Harwood, including KSP. Id. at 592.
Harwood filed his petition for Writ of Certiorari to the United States Supreme Court on
August 15, 2017. (DN 32). He then filed the present motion to stay the proceedings before this
Court, pending the outcome of his Writ, on September 7, 2017. (DN 34.) The next day, King
emailed KSP’s counsel notice that she had mailed a subpoena duces tecum to KSP. Despite a
request from KSP to stay the subpoena pending action by the Supreme Court, King insisted on a
response. (DN 36, #454.) On October 10, KSP filed a motion to quash King’s subpoena, mostly
arguing that it should be quashed pending potential Supreme Court review. (DN 36.)
II. Summary of Law
“The power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes in its docket with economy of time and effort for itself, for
counsel, and for litigants, and the entry of such an order ordinarily rests with the sound discretion
of the District Court.” F.T.C. v. E.M.A. Nationwide, Inc., 767 F. 3d 611, 626–27 (6th Cir. 2014)
4

(quoting Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th
Cir.1977)). Indeed, Districts Courts ordinarily have the authority to issue stays where those stays
would be a valid exercise of their discretion. Ryan v. Gonzales, 568 U.S. 57, 76 (2013) (citing
Rhines v. Weber, 544 U.S. 269, 276 (2005)). The burden is on the moving party to show that
there is a pressing need for delay and that neither the other party nor the public will suffer harm
for the entry of the order. Mobley v. City of Detroit, 938 F. Supp. 2d 688, 690 (E.D. Mich. 2013)
(citing Ohio Envtl. Counsel, 565 F. 2d at 396)).
When a litigant asks the District Court for a stay pending a petition for Writ of Certiorari,
the litigant must demonstrate: (1) a reasonable probability that four Justices would vote to grant
certiorari; (2) a significant possibility that the Supreme Court would reverse the judgment below;
and (3) a likelihood of irreparable harm, assuming the correctness of the litigant’s position, if the
judgment is not stayed. U.S. v. Mandyzcz, 321 F. Supp. 2d 862, 864 (E.D. Mich. 2004) (citing
Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1319–20 (1994) (Rhenquist, J., in
chambers)). A demonstration of each of the three factors is required. Mandyzcz, 321 F. Supp. 2d
at 866 (quoting Packwood, 114 510 U.S. at 1319–20)). Even if a litigant satisfies all three
elements, a stay may still be denied when the equities do not weigh in favor of the stay. Barnes
v. E-Systems, Inc. Group Medical & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J.,
in chambers).
The Court will examine each element in turn to determine if Harwood has met his
burden.

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III. Analysis
A. Reasonable Probability That Four Justices Would Vote to Grant Certiorari
When faced with the question of whether there is a reasonable probability that four
justices would grant certiorari, District Courts in this circuit have looked to Rule 10 of the U.S.
Supreme Court Rules for guidance. F.D.I.C. v. First American Title Ins. Co., 2015 WL 418122
(E.D. Mich. Jan. 30, 2015) at *3. Rule 10 provides guidance to litigants as to what the Supreme
Court justices consider in deciding whether or not to grant a petitioner’s Writ of Certiorari. It
states, in pertinent part:
The following, although neither controlling nor fully measuring the Court's
discretion, indicate the character of the reasons the Court considers:
(a) A United States court of appeals has entered a decision in conflict with
the decision of another United States court of appeals on the same
important matter; has decided an important federal question in a way that
conflicts with a decision by a state court of last resort; or has so far
departed from the accepted and usual course of judicial proceedings, or
sanctioned such a departure by a lower court, as to call for an exercise of
this Court's supervisory power;
(b) A state court of last resort has decided an important federal question in
a way that conflicts with the decision of another state court of last resort or
of a United States court of appeals;
(c) A state court or a United States court of appeals has decided an
important question of federal law that has not been, but should be, settled
by this Court, or has decided an important federal question in a way that
conflicts with relevant decisions of this Court.
Sup. Ct. R. 10. Section (b) of Rule 10 is inapplicable here, as this case does not involve a
decision by the Kentucky Supreme Court. Thus, the Court will consider: (1) if there is a circuit
split on whether a malicious prosecution claim can be brought under the Fourth Amendment, and
(2) if the Sixth Circuit’s holding regarding Harwood’s lack of absolute immunity runs afoul of
Supreme Court precedent.
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1. Circuit Split
Harwood first argues that the Sixth Circuit’s decision adds to what already is a significant
circuit split regarding whether a §1983 malicious prosecution claim can properly be brought
under Fourth Amendment. (DN 34, 382–83.) He claims that the Fifth, Seventh, and Eighth
Circuits have either expressly rejected the idea of a Fourth Amendment malicious prosecution
claim or explicitly declined to rule on the issue. (DN 34, #383; DN 38, #472.) On the other
hand, Harwood argues, the other nine circuits all recognize the claim, but have differed in
regards to what elements are necessary to prove the claim. (DN 34, #383.) King claims that
Harwood has “fabricated” the circuit split, pointing this Court toward comments in Justice
Alito’s dissent in the Supreme Court’s recent decision in Manuel v. City of Joliet. (DN 35,
#395.) There, King claims that Justice Alito stated “the First, Second, Third, Fourth, Fifth,
Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a Fourth Amendment
malicious prosecution claim is cognizable through 42 U.S.C. §1983.” Manuel v. City of Joliet,
Ill., 137 S. Ct. 911, 924 (2017) (Alito, J., Dissenting).
Before turning to merits of the issue, the Court pauses to point out King’s
misapprehension of Justice Alito’s dissent in Manuel. King claims that, “[e]ven Justice Alito,
upon whose dissent [Harwood] is attempting to rely, refutes [Harwood’s] position[,]” and then
proceeds to recite the quote in the preceding paragraph. (DN 35, #395–96.) But those are not
Justice Alito’s words. Rather, Justice Alito quoted from Manuel’s petition for Writ of Certiorari
to support his and Justice Thomas’s argument that the Supreme Court failed to address the main
issue in the case – whether the Fourth Amendment allows for a malicious prosecution claim.

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Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 923–24 (2017) (Alito, J., Dissenting).1 King’s
selective quotation made it appear that Justice Alito said something that he simply did not say.
The Court assumes that this was mere error on King’s part and advises King to exercise more
caution in the future.
After a careful review of relevant circuit precedent, the Court agrees with Harwood that
there is a circuit split regarding whether a §1983 malicious prosecution claim can be brought
under the Fourth Amendment. As the law stands today, the First, Second, Third, Fourth, Sixth,
Ninth, Tenth, Eleventh, and D.C. Circuits all recognize malicious prosecution as an actionable
§1983 claim under the Fourth Amendment. See, e.g., Hernandez-Cuevas v. Taylor, 723 F. 3d 91
(1st Cir. 2013); Spak v. Phillips, 857 F. 3d 458, 461, n. 1 (2d Cir. 2017) (“The rule in the Second
Circuit is that plaintiffs may bring what is in effect a state law suit for malicious prosecution in
federal court under Section 1983, so long as they are able to demonstrate a deprivation of liberty
amounting to a seizure under the Fourth Amendment.”); McKenna v. City of Philadelphia, 582 F.

1

For context, the paragraph states in full:
The question that was set out in Manuel's petition for a writ of certiorari and that we agreed to
decide is as follows:
“[W]hether an individual's Fourth Amendment right to be free from unreasonable seizure
continues beyond legal process so as to allow a malicious prosecution claim based upon
the Fourth Amendment. This question was raised, but left unanswered, by this Court in
Albright v. Oliver, 510 U.S. 266 [114 S.Ct. 807, 127 L.Ed.2d 114] (1994). Since then, the
First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have
all held that a Fourth Amendment malicious prosecution claim is cognizable through 42
U.S.C. § 1983 (“Section 1983”). Only the Seventh Circuit holds that a Fourth
Amendment Section 1983 malicious prosecution claim is not cognizable.” Pet. for Cert. i
(emphasis added).
The question's reference to “a malicious prosecution claim” was surely no accident. First, the
conflict on the malicious prosecution question was the centerpiece of Manuel's argument in favor
of certiorari.1 *924 Second, unless Manuel is given the benefit of the unique accrual rule for
malicious prosecution claims, his claim is untimely, and he is not entitled to relief.

Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 923–24 (2017) (Alito, J., Dissenting).

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3d 447 (3d Cir. 2009); Humbert v. Mayor and City Council of Baltimore City, 866 F. 3d 546 (4th
Cir. 2017); King v. Harwood, 852 F. 3d 568 (6th Cir. 2017); Beck v. City of Upland, 527 F. 3d
853, 861, n. 7 (9th Cir. 2008); Chavez-Torres v. City of Greeley, 660 Fed. App’x. 627 (10th Cir.
2016); Grider v. City of Auburn, Ala., 618 F. 3d 1240, 1256 (11th Cir. 2010) (“This Circuit “has
identified malicious prosecution as a violation of the Fourth Amendment and a viable
constitutional tort cognizable under §1983.”); Pitt v. District of Columbia, 491 F. 3d 494, 511
(C.A.D.C. 2007) (“We join the large majority of circuits in holding that malicious prosecution is
actionable under 42 U.S.C. §1983 to the extent that the defendant's actions cause the plaintiff to
be unreasonably “seized” without probable cause, in violation of the Fourth Amendment.).
On the other hand, the Fifth and Eighth Circuits have either explicitly rejected a Fourth
Amendment §1983 malicious prosecution claim or have declined to rule on the issue. See, e.g.,
Cuadra v. Houston Independent School Dist., 626 F. 3d 808, 812–13 (5th Cir. 2010) (“[A]
freestanding 42 U.S.C. §1983 claim based solely on malicious prosecution [is] not viable . . .
Rather, the claimant must allege that ‘officials violated specific constitutional rights in
connection with a malicious prosecution.’”) (quoting Castellano v. Fragozo, 352 F. 3d 939, 958
(5th Cir. 2003 (en banc)); Bates v. Hadden, 576 Fed. App’x. 636, 639–40 (8th Cir. 2014) (“[W]e
have observed [in past decisions] that malicious prosecution is not a constitutional injury [. . .].
As recently as 2012, we expressed uncertainty as to whether malicious prosecution is a
constitutional violation at all.”) (citing Harrington v. City of Council Bluffs, Iowa, 678 F. 3d 676,
680 (8th Cir. 2012)). The current state of the law in the Seventh Circuit is not as clear-cut.
Following the Supreme Court’s abrogation of the Seventh Circuit’s key holding in
Newsome v. McCabe in its Manuel decision, whether a §1983 malicious prosecution claim may
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be brought under the Fourth Amendment in the Seventh Circuit is in a state of flux. In Newsome,
the Seventh Circuit held that a malicious prosecution claim was not an appropriate §1983 action
under the Fourth Amendment. Newsome v. McCabe, 256 F. 3d 747, 750–51 (7th Cir. 2001). But
the Supreme Court, as Justice Alito points out in his dissent in Manuel, did not rule on whether
malicious prosecution claims could be brought under the Fourth Amendment. Manuel, 137 S.
Ct. at 923–24 (Alito, J., Dissenting). Instead, it remanded the case back to the Seventh Circuit to
decide on which date the statute of limitations on the plaintiff’s claims began to run. Id. at 920.
This is crucial in determining whether a malicious prosecution claim is viable under the Fourth
Amendment, because the plaintiff had analogized his claims of a constitutional violation to the
common law tort of malicious prosecution, which has a statute of limitations that begins to run
when criminal proceedings are terminated. Id. at 921. The government, on the other hand,
argued that the alleged constitutional violation was most similar to the common law tort of false
arrest, with the statute of limitations starting on the date of the initiation of the legal process. Id.
The Supreme Court’s sole holding, however, was that a “seizure” under the Fourth Amendment
can continue past an initial appearance in a criminal case. Id. As Justice Alito writes, it is still
possible for the Seventh Circuit to find that malicious prosecution is not a valid Fourth
Amendment claim and, at the same time, be consistent with the Supreme Court’s holding in
Manuel:
It is certainly true that the question whether a malicious prosecution claim
may be brought under the Fourth Amendment subsumes the question whether a
Fourth Amendment seizure continues past a first or initial appearance, but
answering the latter question does not by any means resolve the Circuit split that
Manuel cited and that we took this case to resolve. Suppose that the Seventh
Circuit were to hold on remand that a Fourth Amendment seizure may continue
up to the date when trial begins but no further. Such a holding would be consistent
with the Court's holding in this case, but there would still be a conflict between
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Seventh Circuit case law and the decisions of other Circuits (on which Manuel
relied, see ibid.), holding that a standard malicious prosecution claim (which
requires a termination favorable to the defendant) may be brought under the
Fourth Amendment.
Id. at 923, n. 1 (Alito, J., Dissenting). Based on the Seventh Circuit’s prior holdings and the fact
that the Supreme Court did not hold that its previous position was incorrect, the Court concludes
that the Seventh Circuit’s prior position of not permitting §1983 claims under the Fourth
amendment is still the law of the circuit. Newsome v. McCabe, 256 F. 3d 747 (7th Cir. 2001).
At the time of this opinion’s entry, the Seventh Circuit has yet to rule on the remanded Manuel.
Three Circuit Courts with precedent different from that of nine Circuit Courts is more
than sufficient to constitute a circuit split. See Sup. Ct. R. 10(a) (stating that a circuit split occurs
when “a United States court of appeals has entered a decision in conflict with the decision of
another United States court of appeals on the same important matter”). Therefore, the Court
concludes that there is a current circuit split on the issue of malicious prosecution claims under
the Fourth Amendment, and this factor weighs in favor of Harwood.
2. Contrary to Supreme Court Precedent
The Court now turns to whether the Sixth Circuit’s holding that Harwood was not entitled
to absolute immunity for his investigatory activities prior to his grand jury testimony is contrary
to Supreme Court precedent. Harwood argues that this is the case, citing a recent Supreme Court
case, Rehberg v. Paulk, as evidence of a conflict. (DN 34, #384–85.) In Rehberg, the Supreme
Court held that grand jury witnesses, even law enforcement officers who purposefully lie on the
stand, are entitled to the same absolute immunity from liability under §1983 as trial witnesses
are. Rehberg v. Paulk, 566 U.S. 356, 359 (2012). According to Harwood, when the Sixth
Circuit created a new exception where, under certain circumstances, an investigating officer who
11

also testifies at a grand jury is entitled to only qualified immunity, it went against Supreme Court
precedent in Rehberg. (DN 34, #384–85.)
A brief discussion of Rehberg is necessary. In Rehberg, the Supreme Court discussed, at
length, the difference between “complaining witnesses” and police officers who merely testify at
grand jury proceedings. Rehberg, 556 U.S. at 370–73. A complaining witness is a person “who
procure[s] an arrest and initiate[s] a criminal prosecution.” Id. at 370. The Supreme Court also
quoted from a prior case, Wyatt v. Cole, which stated complaining witnesses were those who set
“the wheels of government in motion by instigating a legal action.” Id. at 371 (quoting Wyatt v.
Cole, 504 U.S. 158, 164–65 (1992). Prior Supreme Court cases have held that law enforcement
officials “who [submit] affidavits in support of applications for arrest warrants [are] denied
absolute immunity because they ‘[perform] the function of a complaining witness.’” Id at 370.
(citing Kalina v. Fletcher, 522 U.S. 118, 131 (1997); Malley v. Briggs, 475 U.S. 335, 340–41
(1986)). But, as the Rehberg Court stated, a complaining witness may or may not testify at a
grand jury proceeding; in other words, it is not a requirement that for someone to be a
complaining witness, he or she must testify before a grand jury. Id. at 371. Thus, the Supreme
Court differentiated between an officer testifying at a grand jury and a complaining witness:
Once the distinctive function performed by a “complaining witness” is
understood, it is apparent that a law enforcement officer who testifies before a
grand jury is not at all comparable to a “complaining witness.” By testifying
before a grand jury, a law enforcement officer does not perform the function of
applying for an arrest warrant; nor does such an officer make the critical decision
to initiate a prosecution. It is of course true that a detective or case agent who has
performed or supervised most of the investigative work in a case may serve as an
important witness in the grand jury proceeding and may very much want the
grand jury to return an indictment. But such a witness, unlike a complaining
witness at common law, does not make the decision to press criminal charges.

12

Instead, it is almost always a prosecutor who is responsible for the decision to
present a case to a grand jury, and in many jurisdictions, even if an indictment is
handed up, a prosecution cannot proceed unless the prosecutor signs the
indictment. It would thus be anomalous to permit a police officer who testifies
before a grand jury to be sued for maliciously procuring an unjust prosecution
when it is the prosecutor, who is shielded by absolute immunity, who is actually
responsible for the decision to prosecute.
Id. at 371–72 (internal citations omitted). These key distinctions highlighted why the Supreme
Court arrived at the conclusion that civil plaintiffs may not use officer testimony at a grand jury
hearing as evidence in civil suits (or any other, for that matter). The Supreme Court noted,
however, that absolute immunity would not extend to witnesses – police officers or otherwise –
who, outside of the grand jury room, falsify affidavits for arrest warrants or fabricate evidence to
help solve a crime. Id. at n. 1 (citing Kalina, 522 U.S. 118 at 129–31; Malley, 475 U.S. at 340–
45). Individuals participating in such actions enjoy only qualified immunity. Id.
To fully understand the Sixth Circuit’s opinion in King v. Harwood, it is also important to
note the standard for malicious prosecution. In the Sixth Circuit, a plaintiff wishing to pursue a
§1983 claim for malicious prosecution must show that: (1) a criminal prosecution was initiated
against the plaintiff, and the defendant made, influenced, or participated in the decision to
prosecute; (2) there was a lack of probable cause for the criminal prosecution; (3) the plaintiff
suffered a deprivation of liberty, as understood under Fourth Amendment jurisprudence, apart
from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff's favor.
Sykes v. Anderson, 625 F. 3d 294, 309–10 (2010). There is no malice requirement. Id. at 310.
King argues that the Sixth Circuit’s opinion in King v. Harwood comports with Rehberg.
(DN 35, #399.) In King, the Sixth Circuit addressed Rehberg by stating that it:
[D]oes not affect the thin but conspicuous line between, on the one hand, lawenforcement officers who only provide grand-jury testimony (including related
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“preparatory activity, such as a preliminary discussion in which the witness
relates the substance of his intended testimony,” [quoting Rehberg] and including
any conspiracy with prosecutors or other officers to testify falsely), and, on the
other hand, law-enforcement officers who either (1) “set the wheels of
government in motion by instigating a legal action,” [quoting Rehberg, which was
quoting Wyatt v. Cole] or (2) “falsify affidavits” or “fabricate evidence
concerning an unsolved crime[.]” [quoting Kalina and Malley]. Only qualified
immunity extends to the acts of officers in these latter situations.
King v. Harwood, 852 F. 3d 568, 584 (6th Cir. 2017) (internal citations omitted). The King
Court goes on to address a related Sixth Circuit opinion from earlier in the year, Sanders v.
Jones, 845 F. 3d 721 (6th Cir. 2017). In Sanders, the Sixth Circuit was tasked with applying
Rehberg to Sixth Circuit precedent for the first time. Id. at 730. When discussing the lack of
probable cause requirement elucidated in Sykes, the Sixth Circuit noted that grand jury
indictments, when they are “fair upon [their] face,” conclusively determine probable cause. Id.
at 728 (citing Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002)). See also Kaley v. U.S.,
134 S. Ct. 1090, 1097 (2014) (“[A]n indictment ‘fair upon its face,’ and returned by a ‘properly
constituted grand jury,’ we have explained, ‘conclusively determines the existence of probable
cause’ to believe the defendant perpetrated the offense alleged.”) There had been an exception
created by the Sixth Circuit, however, for indictments obtained when a defendant “knowingly or
recklessly presented false testimony to the grand jury to obtain the indictment.” Id. at 729 (citing
Webb v. U.S., 789 F. 3d 647, 660 (6th Cir. 2015). But the Sixth Circuit noted that Rehberg “in
essence deletes the exception.” Id. at 732. Thus, the Sanders Court concluded that pre-grand
jury evidence, such as false statements in police reports, cannot, by themselves, overcome the
presumption of probable cause created by a grand jury indictment. Id. This is because those
statements (or other pre-testifying activities) did not factor into the grand jury’s determination
that probable cause supported indicting the suspect. Id. And if a police officer reads those
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statements at a grand jury proceeding, according to Rehberg, he is immune from suit based upon
his testimony. Id. at 733.
The King Court recognized that the Sanders Court’s holding is a “harsh” decision. King,
852 F. 3d at 587. But it then crafts a new test for determining when a plaintiff may overcome the
presumption of probable cause created via grand jury indictments:
We hold that where (1) a law-enforcement officer, in the course of setting a
prosecution in motion, either knowingly or recklessly makes false statements
(such as in affidavits or investigative reports) or falsifies or fabricates evidence;
(2) the false statements and evidence, together with any concomitant misleading
omissions, are material to the ultimate prosecution of the plaintiff; and (3) the
false statements, evidence, and omissions do not consist solely of grand-jury
testimony or preparation for that testimony (where preparation has a meaning
broad enough to encompass conspiring to commit perjury before the grand jury),
the presumption that the grand-jury indictment is evidence of probable cause is
rebuttable and not conclusive.
Id. at 588.
The question becomes, then, whether the exception crafted by the Sixth Circuit in King is
contrary to the Supreme Court’s holding in Rehberg.
Based on the preceding summation, the Court cannot conclude that it is. Although the
King Court’s conclusion that there is a genuine issue of material fact as to whether Harwood “set
the prosecution in motion” by applying for search warrants appears to contradict the Supreme
Court’s differentiation between complaining witnesses and grand jury testifiers, its
aforementioned new exception does not. King, 852 F. 3d at 591. Nothing in the King exception
allows a plaintiff to reach a police officer’s grand jury testimony and use that as evidence of
liability (as Rehberg explicitly prohibits). Instead, it expands on unprotected pre-grand jury
activities – such as filing affidavits – thereby crafting a new way for a criminal defendant turned
civil plaintiff to overcome the presumption of probable cause created when a grand jury issues an
15

indictment. In Rehberg, as explained in greater detail above, the Supreme Court recognized that
there were some pre-testifying activities, other than ordinary preparation for testifying, that
would not fall under Rehberg’s new protections. Rehberg v. Paulk, 566 U.S. 356, 370, n.1
(2012) (citing Kalina v. Fletcher, 522 U.S. 118, 129–131 (1997); Malley v. Briggs, 475 U.S. 335,
340–45 (1986) (only qualified immunity for officers who falsify affidavits); Buckley v.
Fitzsimmons, 509 U.S. 259, 272 (1993) (only qualified immunity for officers who fabricate
evidence concerning an unsolved crime)). The King exception specifically addresses those
activities. The undersigned interprets Rehberg as granting absolute immunity to an officer’s
grand jury testimony itself but not to other actions an officer might take with regard to the
underlying information. So, for instance, a law enforcement officer might manufacture crime
scene evidence and testify about that evidence at a grand jury proceeding. Under the King
exception, a civil plaintiff is barred from using what the officer said before the grand jury, but
could rely on the officer’s (hypothetical) falsification of evidence.

Therefore, the Court

concludes that the King exception is not contrary to Supreme Court precedent. Thus, this factor
weighs in favor of denying the stay.
Nevertheless, based on the presence of a circuit split regarding the constitutional viability
of malicious prosecution claims, the Court believes that there is a reasonable probability that four
Justices will grant Harwood’s petition for Writ of Certiorari. See Braxton v. U.S., 500 U.S. 344,
347 (1991) (a “principal purpose” of the Supreme Court’s certiorari jurisdiction is to resolve
circuit splits); Nunez v. U.S., 554 U.S. 911 (2008) (Scalia, J., dissenting from the decision to
grant certiorari) (“I had thought that the main purpose of our certiorari jurisdiction was to

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eliminate circuit splits”); City and County of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765,
1774 (2015) (stating that certiorari jurisdiction exists to clarify the state of the law).
B. Significant Possibility of a Supreme Court Reversal
Next, the Court must determine if there is a “significant possibility” that the Supreme
Court would reverse any aspect of the Sixth Circuit’s opinion in King v. Harwood. Unlike the
first and third factors of this test, the “significant possibility of reversal” element does not appear
to have a concrete set of factors for District and Circuit Courts to apply. In the past, District
Courts considering this element have analyzed the Circuit Court’s decision through the lens of
Supreme Court history and precedent. U.S. v. Mandycz, 321 F. Supp. 2d 862, 865–66 (E.D.
Mich. 2004). Supreme Court Justices conducting an analysis of this element have looked to
whether the Circuit Court’s opinion is contrary to Supreme Court precedent or the federal
Constitution. Barnes v. E-Systems, Inc. Group Hosp. Medical & Surgical Ins. Plan, 501 U.S.
1301, 1303–04 (1991) (Scalia, J., in chambers). Thus, the Court is left with little guidance on
how to best weigh this element.
After reviewing the applicable case law, the undersigned does not believe that there is a
“significant possibility” that the Sixth Circuit’s decision will be reversed. The Supreme Court
could reverse the Sixth Circuit on two grounds: (1) a §1983 malicious prosecution claim is not
actionable under the Fourth Amendment; or (2) the Sixth Circuit’s King exception is contrary to
Supreme Court precedent. Looking to the former first, the current circuit split is 9-3 in favor of
allowing §1983 malicious prosecution claims under the Fourth Amendment.

While the

undersigned does not presume to know the minds of any of the Supreme Court Justices, it is
important to note that the Sixth Circuit falls into the majority view that malicious prosecution
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claims are actionable under the Fourth Amendment. It is not an outlier or rogue circuit that has
come to a conclusion of law contrary to every other circuit. In the Court’s opinion, this fact
means that Supreme Court reversal is less likely than if the Sixth Circuit was in the minority.
Thus, the Court concludes that reversal on this ground is not a “significant possibility.”
Examining the King exception leads to a similar result. As described in greater detail in
the preceding section, the Court does not believe that the key holding in King goes against
Supreme Court precedent, Rehberg specifically. Therefore, the Court concludes that reversal on
this ground is also not a “significant possibility.” Thus, the Court cannot conclude that there is a
significant possibility that the Sixth Circuit’s opinion in King v. Harwood will be overturned by
the Supreme Court.
C. Likelihood of Irreparable Harm
Although the Court has determined that there is no significant possibility of reversal, it
will nonetheless address the final factor – whether Harwood will suffer irreparable harm if the
stay is not granted. Harwood argues that he will suffer irreparable harm if he is forced to litigate
against King’s “legally improper claims, including providing testimony, discovery, and other
invasive aspects of litigation.” (DN 34, #387.) Harwood also claims that without a stay, he will
suffer “needless expense, costs, and anxiety.” (Id.) At oral argument, Harwood expanded his list
of potential harms to include damage to other KSP troopers: if Harwood is forced to improperly
litigate the case, then the KSP defense fund will potentially be expended without cause, leaving
other KSP troopers without money to pay for their legal expenses. King argues that Harwood’s
claims of significant financial expenditure, anxiety, and harm to his reputation due to media
coverage are not sufficient to meet the “irreparable” standard. (DN 35, #404–6.)

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While there is not a lot of case law regarding what constitutes “irreparable harm” in the
realm of motions to stay pending potential Supreme Court review, there is extensive law in the
area of injunctive relief. An injury will be deemed irreparable when it “is not fully compensable
by monetary damages or [the] nature of the loss would make damages hard to calculate.” S.
Glazer’s Distributors of Ohio v. Great Lakes Brewing Co., 860 F. 3d 844, 852 (6th Cir. 2017).
“Mere injuries, however substantial, in terms of money, time, and energy necessarily expended
in the absence of a stay, are not enough.” Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.
3d 927, 930 (6th Cir. 2002) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Even
substantial and un-recoupable litigation expenses do not rise to the level of being irreparable.
Nationwide Biweekly Admin., Inc. v. Owen, 873 F. 3d 716, n. 20 (9th Cir. 2017) (citing
Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24 (1974)). Other circuits
considering whether an injury is irreparable have determined that speculative injuries do not rise
to that level of severity. See, e.g., Boardman v. Pacific Seafood Group, 822 F. 3d 1011, 1022
(9th Cir. 2016); New York ex rel. Schneiderman v. Actavis PLC, 787 F. 3d 638, 660 (2d Cir.
2015); Crowe & Dunlevy, P.C. v. Stidham, 640 F. 3d 1140, 1157 (10th Cir. 2011).
Here, Harwood has not demonstrated that he will be irreparably harmed if the case is not
stayed. Harwood’s claims of financial harm – whether to himself or the KSP trooper defense
fund – are simply insufficient to meet the irreparability standard and go against the precedent of
not only the Sixth Circuit, but several other Circuits. See, e.g., Baker, 310 F. 3d at 930; John
Doe Co. v. Consumer Fin. Prot. Bureau, 849 F. 3d 1129, 1134–35 (D.C.C. 2017); Tucker
Anthony Realty Corp. v. Schlesinger, 888 F. 2d 969, 975 (2d Cir. 1989). Even if Harwood’s
argument did not go against well-established precedent, there is a key flaw in it: if the Supreme
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Court were to grant Harwood all the relief he seeks, King’s Kentucky state law claims against
him would still remain. As such, Harwood will eventually be conducting discovery in this case,
whether that discovery takes place in the near term in this Court or later in the Jefferson Circuit
Court. Because of this inevitability, his argument that immediate discovery will somehow cause
him irreparable harm lacks merit. As to the claim that the KSP defense fund may be depleted by
discovery in this action, Harwood offered nothing but that – a claim; there is no evidence before
the Court supporting it.
Regarding Harwood’s claims of anxiety and mental stress, although the Court recognizes
the inevitable stress that flows from being named as a defendant in any lawsuit, especially a
high-profile one, Harwood’s claims of anxiety are not sufficient for this Court to deem them
irreparable harm. His claims are merely conclusory and not supported by any affidavits or other
evidence that would give them credibility. Conclusory statements of injury, especially those
regarding mental stress, are insufficient to demonstrate irreparable harm. See, e.g., AvilesWynkoop v. Neal, 978 F. Supp. 2d 15, 21–22 (D.D.C. 2013) (finding that the plaintiff had not
met the irreparability standard when she alleged anxiety and stress stemming from a hostile work
environment; plaintiff’s allegations were conclusory). The Court does not mean to say that
anxiety or other forms of mental anguish can never rise to the level of irreparability. On the
contrary, courts have found that in certain circumstances with the appropriate corroboration, they
may. See, e.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Edu, 858 F. 3d
1034, 1045–46 (7th Cir. 2017) (transgender student’s mental distress and anxiety constituted
irreparable harm where the defendant’s act of denying the student the “integral” use of the
bathroom of his choice hindered his transition, worsened his depression, and contributed to
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suicidal thoughts – all according to his psychologist); Harris v. Wall, 217 F. Supp. 3d 541, 560
(D.R.I. 2016) (“Plaintiff has enhanced his showing of irreparable harm [the loss of his religious
freedom] with his averment that he experienced severe anxiety when he felt forced to choose his
religious practice over leaving his [prison] cell”).
Harwood’s allegations are quite different from the plaintiffs’ in Whitaker and Harris.
Not only does he not offer any proof of mental stress from a doctor, psychologist, or other
licensed medical professional, but if the Court were to take his argument to its logical
conclusion, then virtually every defendant named in a high-profile lawsuit could meet the
irreparability threshold because of the stress it would cause them. Such a finding would be
contrary to the purposefully high standard of irreparability.

Greater Yellowstone Coal. v.

Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003) (irreparable harm is “not an easy burden to
fulfill”) (citing Adams v. Freedom Forge Corp., 204 F.3d 475, 485 (3d Cir.2000)).
Therefore, the Court holds that Harwood has not demonstrated that he will suffer from an
irreparable injury if the proceedings before this Court is not stayed pending Supreme Court
review. Because Harwood must satisfy all three elements of the Supreme Court’s test before the
Court reaches the final “balancing of the equities” step – and Harwood has not done so – the
Court need not engage in the balancing test.
IV. Conclusion
For the foregoing reasons, Harwood’s motion to stay (DN 34) is DENIED. The Court
will issue a separate ruling on KSP’s motion to quash in due course.

cc: Counsel of record
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Colin Lindsay, MagistrateJudge
United States District Court
December 4, 2017