Penn v. Bed Bath & Beyond, Inc. et al
Filing
47
OPINION AND ORDER Granting in Part and Denying in Part Defendant Jason Bergtold's 36 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TODD CHARLES PENN,
Plaintiff,
Case No. 17-cv-10862
Hon. Matthew F. Leitman
v.
JASON BERGTOLD,
Defendant.
__________________________________________________________________/
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT JASON BERGTOLD’S
MOTION FOR SUMMARY JUDGMENT (ECF #36)
Defendant Jason Bergtold, a City of Novi police officer, arrested Plaintiff
Todd Charles Penn for allegedly attempting to steal merchandise from a Bed Bath
& Beyond store. Penn was later charged with retail fraud, and a jury acquitted him
of that charge. Penn then filed this action in which he alleges that Bergtold arrested
him without probable cause and maliciously prosecuted him – both in violation of
the Fourth Amendment. (See Compl., ECF #1.) Bergtold has now moved for
summary judgment based, in part, on qualified immunity. (See Mot., ECF #36.) For
the reasons explained below, the Court GRANTS summary judgment in favor of
Bergtold on Penn’s unlawful arrest claim and DENIES summary judgment to
Bergtold on Penn’s malicious prosecution claim.
1
I
A
On March 21, 2015, an African American man was shopping at a Bed Bath &
Beyond store located in a strip mall in Novi, Michigan. (See Jacob Leonard
Deposition, ECF #36-10 at Pg. ID 1143.) When the man was leaving the store, he
had at least one “very large bag” in his possession. (Kathleen Simons Dep., ECF
#40-9 at Pg. ID 1610.) As he left, he walked past Bed Bath & Beyond cashier Jacob
Leonard. (See Leonard Dep., ECF #36-10 at Pg. ID 1149-50.) The man drew
Leonard’s attention because he “activate[d] the [store’s] security system,” which
indicated that he may not have paid for all of his items. (Id. at Pg. ID 1149.) The
alarm “didn’t faze [the man]. He just proceeded to walk out [of the store].” (Id.)
Leonard and a second Bed Bath & Beyond employee, Kathleen Simons, then
followed the man into the store’s parking lot. (See id. at Pg. ID 1149-51.) They
confronted him, and he did not say that he paid for all of his items. Instead, he
responded that the employees “[did not] have the right to [question him]” because
he was “a police officer.” (Id. at Pg. ID 1150). A third Bed Bath & Beyond
employee, Kelly Gauthier, then joined Leonard and Simons in the parking lot and
confronted the thief. (See id.) The man subsequently abandoned his bags and started
walking towards the opposite end of the strip mall. (See Kelly Gauthier Dep., ECF
#40-10 at Pg. ID 1684, 1699.)
2
At around the same time that Gauthier confronted the thief outside of the store,
Leonard called 911. (See Leonard Dep., ECF #36-10 at Pg. ID 1155-56.) Novi police
officers, including Bergtold, were dispatched to the scene at 5:03 p.m. (see Police
Report, ECF #36-3 at Pg. ID 748), and they arrived on the scene “within five
minutes” of Leonard’s call. (Leonard Dep., ECF #36-10 at Pg. ID 1156.)
Bergtold then spoke with Simons and Gauthier. The two women provided
Bergtold similar descriptions of the thief that they had seen and confronted. Simons
described the thief as “[a]n older black male, black Pea coat, gray hat, and [] she
thought … blue jeans.” (Bergtold Dep., ECF #36-2 at Pg. ID 611.1) Simons also
told Bergtold that the “male identified himself as a police officer.” (Id.) Gauthier
informed Bergtold that the thief was a “black male, 50 to 60 [years old]” wearing a
“grayish … knit cap,” a “black jacket,” and “blue jeans.” (Gauthier Dep., ECF #4010 at Pg. ID 1685.) Gauthier further told Bergtold that the thief’s coat was “like a
Pea coat.” (Id.) She explained to Bergtold that “it was a flat jacket that wasn’t a
puffy jacket like a ski jacket. It was Pea coat length but [she] wasn’t sure of the type
of jacket.” (Id.) Gauthier also described the thief as “unusual” (id. at Pg. ID 1684)
and “unstable.” (Bergtold Dep., ECF #36-2 at Pg. ID 632.) Finally, Gauthier told
1
At Simons’ deposition, she could not recall how she described the thief to Bergtold.
(Simons Dep., ECF #40-9 at Pg. ID 1616.)
3
Bergtold that the thief was last seen walking towards the opposite end of the strip
mall. (See Gauthier Dep., ECF #40-10 at Pg. ID 1699.)
B
Not long after Bergtold spoke to the Bed Bath & Beyond employees, he began
searching the area of the shopping center near where the thief was last seen. (See
Bergtold Dep., ECF #36-2 at Pg. ID 654-55.) One of the stores in that location was
Value City. (See id.) Bergtold saw a man “in the parking lot in front of Value City”
who, Bergtold believed, appeared similar to the physical description of the thief. (Id.
at Pg. ID 656.) At approximately 5:26 p.m., Bergtold approached the man and began
speaking with him. (See Dashcam Recording, ECF #36-7.) The man was Penn.
C
Bergtold’s initial interaction with Penn was captured on Bergtold’s dash cam
recording system. (See id.) As depicted in that video, Bergtold approached Penn and
asked if he could speak with him, and Penn answered “Yeah.” Bergtold then asked
Penn if he had been to the Bed Bath & Beyond, and Penn responded “No.” Bergtold
next asked Penn who he worked for. Penn said that he worked for the “Wayne
County Sheriff.” Later, Bergtold asked Penn if he was armed, and Penn responded
that he was because he “work[ed] for you guys.” Penn immediately thereafter told
Bergtold that he was “one of you all” (i.e., law enforcement). Bergtold then
4
explained to Penn that he (Bergtold) had been given a description of a “guy [who]
looks just like you.”
In fact, the description of the thief that Bergtold had received was not an exact
match to Penn. Penn did match the description in certain respects: he was an older,
African-American male (see Penn Dep., ECF #40-6 at Pg. ID 1426-27); he was
located in the same vicinity where Bergtold was told the thief was last seen (see id.
at Pg. ID 1427); he was wearing a cap, black jacket, and long pants (see id. at Pg. ID
1428); and he was employed as a law enforcement officer (see id. at Pg. ID 1412).
However, Penn also differed from the described thief in some respects: Penn was
wearing a brown hat, not a “grayish” hat (see id. at Pg. ID 1428); he was wearing
brownish-green cargo pants, not blue jeans (see id.); he was wearing a “black North
Face puffy coat,” not the “flat…pea coat” that Gauthier described to Bergtold (see
id.); and while Gauthier described the thief as “unstable,” Bergtold considered Penn
“[not] aggressive[] and relatively calm” during their interaction. (Bergtold Dep.,
ECF #36- 2 at Pg. ID 696.)
During the conversation between Bergtold and Penn, Penn suggested that two
of them go to the Bed Bath & Beyond store. (See Dashcam Recording, ECF #36-7;
Penn Dep., ECF #40-6 at Pg. ID 1433.) Penn apparently believed that the witnesses
would quickly confirm to Bergtold that Penn was not the thief they had confronted.
Bergtold at first ignored that request. (See id.) But after Penn again suggested
5
returning to Bed Bath & Beyond so that the witnesses could exonerate him, Bergtold
agreed to take Penn to the store. (See id.)
D
Bergtold then returned to Bed Bath & Beyond with Penn. Bergtold went
inside the store to speak with Leonard, Gauthier, and Simons.2 (See Bergtold Dep.,
ECF #36-2 at Pg. ID 705.) Penn took a seat on the hood of a police car. (See
Dashcam Recording, ECF #36-7; Penn Dep., ECF #40-6 at Pg. ID 1433-34.) Penn
was not handcuffed or restrained in any way while sitting on the hood. (See Penn
Dep., ECF #40-6 at Pg. ID 1433.) While seated, he spoke with other officers on the
scene. (See id.)
Bergtold had Leonard, Gauthier, and Simons look at Penn through the store
window, and he asked each of them if Penn was the man that they saw attempt to
steal items from the store. (See Bergtold Dep., ECF #36-2 at Pg. ID 705.) Leonard
positively identified Penn as the man that he saw set off the security alarm and
attempt to steal items from the store. (See Leonard Dep., ECF #36-10 at Pg. ID
1177.) Gauthier also positively identified Penn as the thief. (See Gauthier Dep., ECF
#40-10 at Pg. ID 1687.) Gauthier identified Penn as the thief even though, as
2
Bergtold testified that when he first returned to Bed Bath & Beyond, Penn
accompanied him inside the store. (See Bergtold Dep., ECF #36-2 at Pg. ID 705.)
Penn denies that he was taken into the store at that time. (See Penn Dep., ECF #406 at Pg. ID 1433-34.)
6
described above, Penn’s clothing differed from the clothing that she told Bergtold
the thief was wearing and despite the fact that Penn did not appear to Gauthier to be
mentally unstable. (See id. at Pg. ID 1687-88.) Gauthier based her identification on
her “face-to-face encounter” with the thief. (Id. at Pg. ID 1687.) Gauthier insists
that she was then, and remains today, “certain” that Penn was the thief she
confronted in the store parking lot. (Id. at Pg. ID 1698.)
Simons, however, told Bergtold that she “[didn’t] believe that [Penn was] the
[thief]” because Penn was “taller and larger” than the man she confronted. (Simons
Dep., ECF #40-9 at Pg. ID 1627.) Simons says that she “remember[s] telling
[Bergtold], you know, I’m not sure but I don’t think that’s the guy. I don’t think
that’s the guy. The guy I saw, and this is what I told [Bergtold], … the guy I saw
larger, taller, different.” (Id. at Pg. ID 1639.)
At around this same time, another person who had been shopping at the strip
mall approached the other officers on the scene. That man, Ferris Anthony, “told
[the officers] you guys arrested the wrong guy. [Penn] was very clearly different
than the man that I saw walking out of [the store].” (Anthony Dep., ECF #40-8 at
Pg. ID 1562.) Anthony said the same thing to Bergtold when Bergtold returned from
inside the store. (See id.)
7
E
Bergtold ultimately arrested Penn for retail fraud. Bergtold concluded that he
had probable cause for the arrest based on “all [of] the information [he] had” at the
time of Penn’s arrest. (Bergtold Dep., ECF #36-2 at Pg. ID 704.) That information
included, but was not limited to, the positive eye-witness identifications of Penn by
Leonard and Gauthier, the fact that Penn was located around the same time and near
the same location of the strip mall where the thief was last seen, that Penn matched
some portion of the description given to Bergtold (i.e., age, race, sex, the color of
his coat, the length of his pants, and the wearing of a dark-colored hat), and the fact
that Penn was employed as a law enforcement officer (which matched the thief’s
statement that he was a law enforcement officer). (See id. at Pg. ID 704-05.)
Bergtold said that he found it “very important” that the thief had identified himself
as a law enforcement officer and that Penn was also employed as a law enforcement
officer. (Id. at Pg. ID 736.)
F
Bergtold later returned to the station and drafted a police report. (See Police
Rpt., ECF #36-3.) In that report, Bergtold wrote that Gauthier, Leonard, Simons,
and Anthony had all “positively identified” Penn as the thief. (See id. at Pg. ID 750,
752.) In fact, however, neither Simons nor Anthony positively identified Penn as
8
the thief.3 (See Simons Dep., ECF #40-9 at Pg. ID 1628; Anthony Dep., ECF #40-8
at Pg. ID 1565.)
Bergtold also described his first contact with Penn. Bergtold wrote that when
he first addressed Penn, Penn “got out of [his] car, [] began walking toward me,”
3
During Penn’s earlier criminal trial, Anthony testified that he had, in effect,
“sign[ed] on” to the identification of Penn by other witnesses. (Anthony Crim. Trial
Tr., ECF #36-12 at Pg. ID 1266.) But that testimony is inconsistent with Anthony’s
deposition testimony in this case that he did not identify Penn as the thief. (See, e.g.,
Anthony Dep., ECF #40-8 at Pg. ID 1565.) For the purposes of this motion, the
Court must credit Anthony’s deposition testimony because it is more favorable to
Penn. Bergtold counters that during Anthony’s deposition, Anthony actually
confirmed the accuracy of his trial testimony that he had “sign[ed] on” to the
identification of Penn, and Bergtold says that this portion of Anthony’s deposition
testimony establishes that he did identify Penn as the thief to Bergtold. (See Mot.,
ECF #36 at Pg. ID 539, citing Anthony Dep., ECF #40-8 at Pg. ID 1586-89.) The
Court has carefully reviewed Anthony’s deposition testimony, and it is not
persuaded that Anthony admitted that he “sign[ed] on” to the identification of Penn
by others or that he otherwise identified Penn as the thief. Anthony was never
directly asked during his deposition: did you “sign on” to the identification of Penn
by any other witnesses? Instead, he was asked ambiguously-worded questions about
his trial testimony to that effect. (See Anthony Dep., ECF #40-8 at Pg. ID 1586-89.)
These questions were ambiguous because, among other things, it is not clear whether
they asked Anthony to confirm the fact that he testified at Penn’s trial that he signed
on to someone else’s identification of Penn or whether they asked him to confirm
that that trial testimony was, in fact, accurate. Thus, Anthony’s answers to these
questions, when construed in the light most favorable to Penn, are not an admission
or acknowledgment by Anthony that he signed on to anyone else’s identification at
the scene. Moreover, while Anthony arguably testified during his deposition that he
internally second-guessed his initial conclusion that Penn was not the thief (see id.
at Pg. ID 1578, 1585), he did not clearly testify during his deposition that he shared
his second-guessing with Bergtold or the other officers. For all of these reasons, and
for purposes of this motion, the Court credits Anthony’s deposition testimony that
he told police that Penn was not the thief and concludes that Anthony did not “sign
on” to the identification of Penn by any other witnesses.
9
said “‘I am one of you[,]’ and showed me a badge.” (Police Rpt., ECF #36-3 at Pg.
ID 749.) Bergtold later noted in the report that “one of the first things he [Penn] told
me [was] that … [I am] ‘one of you.’” (Id. at Pg. ID 750.)
On March 24, 2015, Detective Randall Mince of the Novi Police Department
reviewed “the [police] report and obtained a copy of the surveillance footage from
Bed Bath & Beyond.” (Id. at Pg. ID 756.) Based on that review, and in reliance on
the information in the report, Detective Mince decided to “forward[]” the case “for
a warrant.” (Id.; see also Mince Dep., ECF #40-12 at Pg. ID 1717.) The Oakland
County Prosecutor ultimately charged Penn with retail fraud.
The case against Penn then proceeded to trial. At the conclusion of the
prosecution’s case, Penn moved for a directed verdict. The state trial court denied
Penn’s motion. The trial court noted that it was the “toughest directed verdict
[motion]” that the court had encountered and that “if this was a bench trial, [the court
would] acquit [Penn].” (ECF #25-8 at Pg. ID 415.) But, the trial court concluded
that when viewing the evidence in the light most favorable to the prosecution, there
was sufficient evidence from which a jury could find Penn guilty of retail theft
beyond a reasonable doubt. (See id.) The trial court relied heavily on the fact that
the thief had “said [that he was] a police officer immediately and then it just so
happen[ed] that coincidentally the person that the officers [came] upon [was] a
police officer as well.” (Id.) The trial court found that to be “a[n] unusual fact to
10
happen by coincidence in such a short period of time.” (Id.) At the close of the
proofs, the jury acquitted Penn of the retail fraud charge.
II
Penn filed this action against Bergtold on March 19, 2017.4 (See Compl., ECF
#1.) Penn brings two claims against Bergtold under the Fourth and Fourteenth
Amendments, both pursuant to 42 U.S.C. § 1983. First, Penn alleges that Bergtold
“wrongfully” arrested him. (See id. at ¶32, Pg. ID 7.) Second, Penn claims that
Bergtold “falsely reported and participated in [Penn’s] unlawful prosecution.” (Id.)
Bergtold moved for summary judgment on Penn’s claims on June 28, 2018.
(See Mot., ECF #36.) In that motion, Bergtold argued that he is entitled to qualified
immunity. (See id.)
The Court held a hearing on Bergtold’s motion on February 5, 2019. (See ECF
#43.) On March 8, 2018, the Court ordered the parties to submit supplemental briefs
on issues related to Bergtold’s qualified immunity defense. (See Order, ECF #44.)
Among other things, the Court directed Penn to identify “(1) the most factuallyanalogous cases in which courts have determined that an officer did not have
probable cause to arrest and/or that an officer could not reasonably have concluded
that probable cause to arrest existed and (2) the most factually-analogous cases in
4
Penn also brought claims against Bed Bath & Beyond. (See Compl., ECF #1.) Penn
stipulated to dismiss those claims on May 25, 2018. (See ECF #34.) Thus, Bergtold
is the only remaining Defendant in this action.
11
courts have determined that there was not probable cause for the criminal charge.”
(Id. at Pg. ID 1763-64.) The Court also asked the parties to identify cases in which
courts discussed “(1) whether an identification that results from [an allegedlyunreliable identification procedure] may be used when determining whether there is
probable cause to arrest and (2) whether an identification that results from such a
procedure may be used when determining whether there is probable cause to charge
a suspect with a crime.” (Id. at Pg. ID 1764.) The parties filed these supplemental
briefs on March 21 and 22, 2019. (See ECF ## 45, 46.)
III
The summary judgment standard and its application in the qualified immunity
context are well-established. A movant is entitled to summary judgment when it
“shows that there is no genuine dispute as to any material fact . . . .” SEC v. Sierra
Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (quotations omitted). When
reviewing the record, “the court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in its favor.” Id. “The
mere existence of a scintilla of evidence in support of the [non-moving party’s]
position will be insufficient; there must be evidence on which the jury could
reasonably find for [that party].” Anderson, 477 U.S. at 252. Summary judgment is
not appropriate when “the evidence presents a sufficient disagreement to require
12
submission to a jury.” Id. at 251-252. “Credibility determinations, the weighing of
the evidence, and the drafting of legitimate inferences from the facts are jury
functions, not those of a judge . . . .” Id. at 255.
Qualified immunity “protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have known.” Green v.
Throckmorton, 681 F.3d 853, 864 (6th Cir. 2012) (quoting Pearson v. Callahan, 555
U.S. 223, 231 (2009)). “Once raised, it is the plaintiff’s burden to show that the
defendant[] [is] not entitled to qualified immunity.” Kinlin v. Kline, 749 F.3d 573,
577 (6th Cir. 2014).
The United States Court of Appeals for the Sixth Circuit “has generally used
a two-step [qualified immunity] analysis: (1) viewing the facts in the light most
favorable to the plaintiff, [the court] determines whether the allegations give rise to
a constitutional violation; and (2) [the court] assesses whether the right was clearly
established at the time of the incident.” Id. (internal punctuation omitted). “[U]nder
either prong [of this inquiry], courts may not resolve genuine disputes of fact in favor
of the party seeking summary judgment.” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014).
13
IV
The Court begins with Penn’s claim that Bergtold arrested him without
probable cause in violation of the Fourth Amendment. Bergtold argues that he is
entitled to summary judgment on this claim based upon qualified immunity. The
Court agrees.
A
Penn contends that Bergtold’s probable cause determination was invalid
because it was based in large part upon the identifications of Penn by Gauthier and
Leonard. As described above, those two Bed Bath & Beyond employees positively
identified Penn as the thief while Penn sat on the hood of a police vehicle that was
parked in front of Bed Bath & Beyond. Penn insists that these identifications do not
support a finding of probable cause because they were the product of a suggestive
“show up.” (See Penn Resp. Br., ECF #40 at Pg. ID 1368-70.) A “show up” occurs
“when only one suspect is presented to [a] witness.” United States v. Funches, 84
F.3d 249, 254 (7th Cir. 1996). The practice of conducting a show up “has been
widely condemned” because it may induce a witness to conclude incorrectly that the
police have apprehended the real perpetrator. Stovall v. Denno, 388 U.S. 293, 302
(1967). Penn argues that because the show up identification procedure is inherently
flawed, Bergtold should have excluded the Gauthier and Leonard identifications
14
from his probable-cause analysis. This argument fails to overcome Bergtold’s
qualified immunity defense for two reasons.
1
Penn has failed to show that clearly-established federal law prohibited
Bergtold from relying on the Gauthier and Leonard identifications in his probablecause analysis. Penn has not cited any case in which any court has held that an
officer may not rely upon an identification from an allegedly-suggestive show up
when determining whether he has probable cause to arrest. Instead, Penn relies
heavily on the Sixth Circuit’s decision in Gregory v. City of Louisville, 444 F.3d 725
(6th Cir. 2006). Penn highlights the Sixth Circuit’s statement that “[c]riminal
suspects have a constitutional right to be free from identification procedures ‘so
unnecessarily suggestive and conducive to irreparable mistaken identification’ that
the identification’s use violates due process of law.” Id. at 746-47 (quoting Stovall,
388 U.S. at 302). But the “use” to which the Sixth Circuit referred appears to be the
admission of the identification at trial, not the officer’s reliance on the identification
in determining that he had probable cause to arrest. Indeed, later in the court’s
Opinion, the court recognized “that an unduly suggestive identification does not, in
and of itself violate constitutional rights” and “that the prosecution’s use of the
identification at trial is a necessary intervening act for injury to occur and liability
15
for any party to attach.” Id. at 747 (emphasis added) (citing Manson v. Brathwaite,
432 U.S. 98, 113 (1977)).
More importantly, the court in Gregory cited with approval its earlier decision
in Hutsell v. Sayre, 5 F.3d 996 (6th Cir. 1993). See Gregory, 444 F.3d at 746. The
court’s reliance on Hutsell further suggests that it did not hold that an officer may
not rely upon an identification made during an unduly suggestive show up when
determining whether he has probable cause to arrest. In Hutsell, the court explained
that “[t]he procedural safeguards established in Brathwaite and Stovall protect only
against the admission of unreliable evidence at trial and does [sic] not establish a
constitutional right to be free of suggestive lineups.” Id. at 1005 (emphasis added)
(quoting Hensley v. Carey, 818 F.2d 646, 648-49 (7th Cir. 1987)). And, critically,
the court in Hutsell held that a plaintiff “fail[s] to state a claim for an alleged
violation of a known constitutional right” where he alleges that, as the result of an
“impermissibly-suggestive” identification procedure, he was “unreasonably seized
without probable cause.” Id. at 1003, 1005. Penn has failed to reconcile Gregory’s
reliance on Hutsell with his argument that Gregory forbids officers from relying
upon show-up-based identifications when making probable cause determinations.
For all of these reasons, Penn has failed to show that Gregory, or any other
authority, clearly establishes that an officer may not consider an identification based
upon a show up when determining whether he has probable cause to arrest.
16
2
As noted above, the Sixth Circuit in Gregory analyzed and applied rules
established by the Supreme Court for assessing whether an identification made
during a suggestive identification procedure should be admitted into evidence at
trial. See Gregory, 444 F.3d at 746-47 (citing Manson, 432 U.S. at 113 and Stovall,
388 U.S. at 302). Even if, as Penn argues, these rules do apply to probable cause
determinations, Bergtold would still be entitled to qualified immunity. That is
because, as described below, Penn has failed to show that the Gauthier and Leonard
identifications were so unreliable that they clearly would have been excluded from
evidence at trial. And since it was not clear that the identifications would have been
excluded from evidence at trial, it would not have been clear to a reasonable officer
in Bergtold’s position that he could not rely upon the identifications when
determining whether he had probable cause to arrest.
A district court applies a “two-step analysis” in determining whether an
identification is admissible at trial. United States v. Crozier, 259 F.3d 503, 510 (6th
Cir 2001). “First, [the court] consider[s] whether the identification procedure was
suggestive.” Id. Second, if the court “find[s] [that] the procedure was suggestive,
[the court] then determine[s] whether, under the totality of the circumstances, the
identification was nonetheless reliable and therefore admissible.” Id. (internal
citations omitted). “The five factors to be weighed in determining reliability are: 1)
17
the opportunity of the witness to view the perpetrator during the crime; 2) the
witness’s degree of attention to the perpetrator; 3) the accuracy of the witness’s prior
descriptions of the perpetrator; 4) the level of certainty demonstrated by the witness
when identifying the suspect; and 5) the length of time between the crime and the
identification.” Id. “Against these factors is to be weighed the corrupting effect of
the suggestive identification itself.” Id.
Penn has not cited a single case in which any court has applied this two-part
test and excluded from evidence identifications like those made by Gauthier and
Leonard. Nor has Penn shown that the identifications – even if made as the result of
a suggestive show up – were so unreliable that they clearly would have been
excluded under the test. With respect to both identifications, at least some of the
five factors weigh strongly in favor of admission. Leonard had an opportunity to
view the thief during the crime with a reasonable degree of attention, he was certain
that Penn was the thief, and there was a relatively short amount of time between
when Leonard confronted the thief and when he identified Penn as that thief.5
5
Leonard testified about the events in question at his deposition in this case and at
Penn’s criminal trial in state court. As Penn correctly notes, there are some
inconsistencies between Leonard’s trial testimony and his deposition testimony.
(Compare Leonard Crim. Trial Tr., ECF #36-5 with Leonard Dep., ECF #36-10.)
Penn argues that because Leonard gave inconsistent accounts, Bergtold could not
reasonably have relied upon Leonard’s identification. (See Penn Supp. Br., ECF #46
at Pg. ID 1834-35.) But Leonard gave his inconsistent testimony long after Bergtold
arrested Penn, and Penn has not shown that Bergtold was aware of any inconsistent
statements by Leonard at the time of the arrest – i.e., at the time Bergtold relied on
18
Likewise, Gauthier had a clear opportunity to view the thief with a reasonable degree
of attention during the crime, she was unequivocal that Penn was the thief, and there
was a relatively short amount of time between when Gauthier confronted the thief
and when she identified Penn as that thief. It is true, as Penn highlights, that there
were some discrepancies between Gauthier’s original description of the thief and
Penn’s actual appearance (such as the length and material of Penn’s jacket, the color
and material of his pants, and his demeanor). (See Penn Supp. Br., ECF #46 at Pg.
ID 1836.)
But the “the accuracy of the witness’s prior descriptions of the
perpetrator” is only one of the five factors that a court applies when determining
whether an identification is reliable. Crozier, 259 F.3d at 510. And the other four
factors tend to support the conclusion that Gauthier’s description was reliable. Thus,
while Gauthier did provide a description of the thief that did not match Penn in
several respects, that factor alone did not clearly render her identification unreliable.
For all of these reasons, the Gauthier and Leonard identifications were not so
unreliable that they clearly would have been excluded from evidence under the
applicable five-part test. Therefore, it would not have been clear to a reasonable
officer in Bergtold’s position that – if the test for admission of identifications at trial
applied in the probable cause context – he could not rely on the Gauthier and Leonard
Leonard’s identification of Penn. That Leonard appeared to give inconsistent
statements long after the arrest does not undermine the reasonableness of Bergtold’s
reliance on Leonard’s identification at the time of the arrest.
19
identifications in assessing whether he had probable cause to arrest Penn. And for
that reason, Bergtold’s reliance on those identifications did not strip him of his
qualified immunity. See, e.g., Green, 681 F.3d at 864 (in order to overcome a
qualified immunity defense, plaintiff must demonstrate that defendant-officer
violated clearly established constitutional right).
B
Penn further argues that Bergtold is not entitled to qualified immunity
because, under the totality of the circumstances, Bergtold plainly lacked probable
cause to arrest him. In support of that argument, Penn stresses that in many respects
he did not match at least one of the descriptions of the thief originally given to
Bergtold and that two eyewitnesses told Bergtold that he was not the thief.
Penn’s attack on Bergtold’s probable cause determination is a serious one. He
has made a persuasive case that Bergtold may, perhaps, have lacked probable cause
for the arrest. But a “lack of probable cause is not necessarily fatal to an officer’s
defense against civil liability for false arrest. Rather, an officer is entitled to
qualified immunity under § 1983 if he or she could reasonably (even if erroneously)
have believed the arrest was lawful in light of clearly established law and the
information possessed at the time. Id. at 865.6 Bergtold is entitled to qualified
6
See also Kennedy v. City of Villa Hills, 635 F.3d 210, 214 (6th Cir. 2011) (“Thus,
even if a factual dispute exists about the objective reasonableness of the officer’s
actions, a court should grant the officer qualified immunity if, viewing the facts
20
immunity here because Penn has failed to show that Bergtold’s probable cause
determination, even if wrong, was unreasonable.
“Probable cause to make an arrest exists if, at the moment of the arrest, the
facts and circumstances within the officers’ knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in
believing that the arrestee had committed or was committing an offense.” Klein v.
Long, 275 F.3d 544, 550 (6th Cir. 2001) (internal punctuation omitted). “[W]hether
probable cause for a crime exists is based on an examination of all facts and
circumstances within an officer’s knowledge at the time of an arrest.” Green, 681
F.3d at 865 (emphasis in original; internal quotation marks omitted). Indeed,
“[p]robable cause is assessed from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Klein, 275 F.3d at 550
(internal quotation marks omitted). And the “probable cause requirement ‘does not
demand any showing that such a belief is correct or more likely true than false.’”
United States v. Sangineto-Miranda, 859 F.2d 1501, 1508 (6th Cir. 1988) (quoting
Texas v. Brown, 460 U.S. 730, 742 (1983)). See also United States v. Campbell, 486
F.3d 949, 955 (6th Cir. 2009) (same).
favorably to the plaintiff, an officer reasonably could have believed that the arrest
was lawful”).
21
The following undisputed facts known to Bergtold, taken together, are
sufficient to support a reasonable belief that there was probable cause to arrest Penn:
Bergtold located Penn shortly after the alleged theft in the same general
location where the thief was last seen;
Penn was the same approximate age, same gender, and same race of the
thief that witnesses described to Bergtold;
Penn was wearing similar, though not identical, clothing to the thief
that witnesses described to Bergtold;
The thief identified himself as a law enforcement officer, and Penn was
employed as a law enforcement officer;
Bed Bath & Beyond employee Jacob Leonard, who saw the thief exit
the store and who confronted the thief in the store parking lot, positively
identified Penn as the thief. The record does not reflect that Leonard’s
identification of Penn conflicted with any information that Leonard had
previously provided to Bergtold; and
A second Bed Bath & Beyond employee, Kelly Gauthier, who also
confronted the thief in the parking lot, positively identified Penn as the
thief. Gauthier was “certain” of her identification even though Penn
did not exactly match the description of the thief she that had earlier
given to Bergtold.
Penn counters that Bergtold acted unreasonably because he violated two
clearly-established rules when he determined that he had probable cause to arrest.
Penn first invokes the rule that “[a]n eyewitness identification will constitute
22
sufficient probable cause unless, at the time of the arrest, there is an apparent reason
for the officer to believe that the eyewitness was lying, did not accurately describe
what he had seen, or was in some fashion mistaken regarding his recollection of the
confrontation.” Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (internal
quotation marks omitted). Penn says that Bergtold ran afoul of this rule when
Bergtold relied upon the Leonard and Gauthier identifications even though he had at
least some reason to believe that they were both mistaken.
But the record reveals that Bergtold did not blindly accept the Leonard and
Gauthier identifications, nor did he arrest Penn based solely on those identifications.
Indeed, Bergtold testified that he based his decision to arrest Penn on “all [of] the
information [he] had” and “not just the [identifications from the] show-up.”
(Bergtold Dep., ECF #36-2 at Pg. ID 704.) And as Bergtold was considering the
“whole thing,” he found it “very important” that, when asked where he was
employed, Penn identified himself as a law enforcement officer. (Id. at Pg. ID 736.)
Bergtold reasonably regarded that fact as significant because it is undisputed that the
thief proclaimed that he was a police officer. Indeed, at Penn’s state court criminal
trial, the judge observed that the overlap between Penn’s law enforcement
employment and the thief’s self-identification as a police officer was “an unusual
fact to happen by coincidence in such a short period of time.” (ECF #25-8 at Pg. ID
415.) And the judge highlighted that fact in denying Penn’s motion for directed
23
verdict. (See id.) Bergtold did not act unreasonably when he concluded that the
Gauthier and Leonard identifications plus Penn’s employment as a police officer
established at least probable cause to arrest Penn.
Penn next invokes the rule that an officer must consider “both the inculpatory
and exculpatory evidence before determining if he has probable cause to make an
arrest.” (Penn Resp. Br., ECF #40 at Pg. ID 1370, quoting Everson v. Leis, 556 F.3d
484, 498 (6th Cir. 2009).) Penn argues that Bergtold wrongly “exclude[d]” from his
probable cause determination “readily available exculpatory evidence.” (Id.) For
instance, Penn says that Bergtold should have gone into the Value City store in order
to “investigate Penn’s exculpatory alibi” that he was returning items at that store at
the time of the alleged robbery at Bed Bath & Beyond. (Id.)
But as Bergtold explained at his deposition, he did not go into the Value City
store because Penn suggested that he (Bergtold) attempt to verify Penn’s innocence
in a different way:
I did not go into Value City and talk to any employees
because [Penn] requested to go to Bed Bath & Beyond. It
was an immediate [request that] he wanted to go there, and
I entertained him. As far as if you’re going to ask me if I
tried to establish an alibi, I guess by catering to the request
to go to Bed Bath & Beyond I was giving him the
opportunity to clear that up.
(Bergtold Dep., ECF #36-2 at Pg. ID 683.) Penn has not shown that Bergtold
24
violated Penn’s clearly-established right to have known exculpatory evidence
considered before being arrested.
C
In the end, the question of whether Bergtold actually had probable cause to
arrest Penn is an exceedingly difficult one. The facts known to Bergtold weighing
in favor of probable cause are nearly in equipoise with those weighing against
probable cause – so much so that the fact pattern here would be well-suited for a law
school criminal procedure examination.
The difficulty of the probable cause
question requires the Court to uphold Bergtold’s qualified immunity on Penn’s
unlawful arrest claim. Indeed, “it is precisely for the hard case that [qualified]
immunity exists.” White by White v. Chambliss, 112 F.3d 731, 739 (4th Cir. 1997).
Bergtold is entitled to that immunity from Penn’s unlawful arrest claim because
under all of the circumstances, he could reasonably – even if erroneously – have
believed that he had probable cause to arrest Penn.7
7
Penn suggests that federal courts have found a lack of probable cause to arrest in a
number of cases involving similar facts and that these cases show that Bergtold could
not reasonably have believed that he had probable cause to arrest here. (See Penn
Supp. Br., ECF #46 at Pg. ID 1828-31.) However, the cases cited by Penn are
distinguishable. Penn first relies upon the Sixth Circuit’s decision in Ahlers v.
Schebil, 188 F.3d 365 (6th Cir. 1999). But the court in Ahlers determined that there
was probable cause to arrest in that case. See id. at 372. Next, Penn cites Keuhl v.
Burtis, 173 F.3d 646 (8th Cir. 1999). In Keuhl, the Eighth Circuit determined that
the defendant officer was not entitled to qualified immunity on a false arrest claim.
The court stressed that the officer both “ignored” a witness’ attempt to “retract her
statement” and “refused to interview” another witness who would have exonerated
25
V
Penn next claims that Bergtold maliciously prosecuted him in violation of the
Fourth Amendment. This claim is based on Penn’s allegation that Bergtold made
materially false statements in his police report and that those false statements led to
the issuance of the criminal charge against Penn. Bergtold contends that he is
entitled to summary judgment on this claim based on qualified immunity. The Court
disagrees.
A
The Court begins with the first prong of the qualified-immunity analysis –
namely, whether Penn has presented sufficient evidence of a constitutional violation.
He has.
Penn has presented evidence that Bergtold violated his Fourth Amendment
rights by maliciously prosecuting him. In order to prevail on a claim for malicious
the plaintiff. Id. at 651. That did not happen here. Penn also relies upon Baptiste v.
J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998). In Baptiste, the court determined
that officers were not entitled to qualified immunity where they, among other things,
“viewed a videotape” that contradicted the witnesses’ version of events and ignored
receipts produced by the plaintiff that provided evidence that the plaintiff did not
steal any merchandise. See id. at 1257. Here, Bergtold was not confronted with such
unimpeachable evidence of Penn’s innocence. Finally, Penn cites Gardenhire v.
Schubert, 205 F.3d 303 (6th Cir. 2000). In Gardenhire, the Sixth Circuit held that
an arresting officer was not entitled to qualified immunity. But, unlike here, the
defendant officer in Gardenhire based his arrest on the “bare allegation” by one
witness that the plaintiff had stolen certain items from her. Id. at 318. In contrast to
this case, in Gardenhire, it was not even clear that a crime had occurred.
26
prosecution in violation of the Fourth Amendment, Penn must “establish that (1) a
criminal prosecution was initiated against [him] and [Bergtold] made, influenced, or
participated in the prosecutorial decision; (2) there was no probable cause to support
the charges; (3) as a result of the legal proceedings, [Penn] suffered a deprivation of
liberty apart from the initial seizure; and (4) the criminal proceedings ended in
[Penn’s] favor.” Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017) (internal
quotation marks omitted). In Bergtold’s summary judgment motion, he challenges
only the probable-cause element of Penn’s malicious-prosecution claim.
“In general, the existence of probable cause in a § 1983 action presents a jury
question, unless there is only one reasonable determination possible.” Green, 681
F.3d at 865 (quoting Parsons v. City of Pontiac, 533 F.3d 492, 501 (6th Cir. 2008)).
See also Webb v. United States, 789 F.3d 647, 665 (6th Cir. 2015) (“In section 1983
cases, the existence of probable cause usually poses a jury question”).8 On this
8
In a conflicting line of cases, the Sixth Circuit has held that “probable cause
determinations are legal determinations” to be made by a court, not a fact-finder, and
that the jury’s sole job is to resolve factual disputes underlying the court’s probable
cause determination. Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005). The Sixth
Circuit has recognized that “inconsistently, we have at times asked the jury and at
times reserved for the court the issue of whether a set of facts provided officers with
probable cause.” McKenna v. Edgell, 617 F.3d 432, 441-42 (6th Cir. 2010). See also
Harmon v. Hamilton County, 675 F. App’x 532, 543 (6th Cir. 2017) (“It is true that
this court has taken seemingly inconsistent views as to whether the existence of
probable cause is a question of fact or law”). For the purposes of this motion, the
Court follows the rule as set forth in Green above. The Sixth Circuit applied that
rule both long before and after Hale. See, e.g., Pyles v. Raisor, 60 F.3d 1211, 1215
(6th Cir. 1995) (“In general, the existence of probable cause in a § 1983 action
27
record, taking the evidence in the light most favorable to Penn, a jury could
reasonably conclude that there was not probable cause to support the criminal charge
against Penn. As explained in detail above, there is strong evidence supporting
probable cause and strong evidence that probable cause was lacking. Under these
circumstances, there is not “only one reasonable determination possible” as to
whether the charge against Penn was supported by probable cause. Id. Accordingly,
the question of probable cause is for the jury.9
presents a jury question, unless there is only one reasonable determination
possible”); Webb, 789 F.3d at 665 (stating rule in 2015 decision). In any event, even
if the Court applied the rule from Hale, the Court would still deny summary
judgment on Penn’s malicious prosecution claim because there are important factual
disputes underlying the probable cause determination that must be made in order to
resolve that claim. Among the disputes to be resolved: Did Anthony “sign on” to
the identification of Penn by other witnesses, as he seemed to admit during Penn’s
criminal trial (see Anthony Crim. Trial Tr., ECF #36-12 at Pg. ID 1266) or did
Anthony never identify Penn as he testified in his deposition here (see Anthony Dep.,
ECF #40-8 at Pg. ID 1565)? And did Simons identify Penn as the thief, as Bergtold
claims (see Police Rpt., ECF #36-3 at Pg. ID 750), or did she instead tell Bergtold
that she did not believe Penn was the thief, as she testified during her deposition (see
Simons Dep., ECF #40-9 at Pg. ID 1628)?
9
There is no inconsistency between the Court’s holding here that the jury must
decide whether there was probable cause for the charge against Penn and the Court’s
earlier holding that Bergtold is entitled to qualified immunity from Penn’s unlawful
arrest claim. As explained above, when analyzing whether Bergtold was entitled to
qualified immunity from Penn’s unlawful arrest claim, the Court had to ask whether
Bergtold reasonably – even if erroneously – could have believed that he had probable
cause to arrest. It is not inconsistent to conclude, as the Court has, both that Bergtold
could reasonably have believed that he had probable cause to arrest Penn and that a
jury could determine that there was actually a lack of probable cause for the charge
against Penn.
28
B
The Court next turns to whether Penn has presented sufficient evidence that
Bergtold violated a clearly-established constitutional right. The Court concludes
that Penn has.
It was clearly established at the time of Penn’s arrest that a police officer could
not intentionally falsify evidence in order to manufacture probable cause for a
criminal charge. Indeed, nearly fifteen years before Penn’s arrest, the Sixth Circuit
emphasized that “[f]alsifying facts to establish probable cause to arrest and prosecute
an innocent person is of course patently unconstitutional.” Hinchman v. Moore, 312
F.3d 196, 206 (6th Cir. 2002). And a year before Penn’s arrest, that court explained
that a police officer violates the Fourth Amendment when “when his deliberate or
reckless falsehoods result in arrest and prosecution without probable cause.”
Newman v. Twp. of Hamburg, 773 F.3d 769, 772 (6th Cir. 2014). After Penn’s arrest,
the Sixth Circuit clarified that its pre-arrest decisions stand for the proposition that
a “police officer violates a suspect’s clearly established right to freedom from
malicious prosecution under the Fourth Amendment ‘[] when his deliberate or
reckless falsehoods result in arrest and prosecution without probable cause.’”
Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015) (quoting Newman, supra)).
Penn has presented sufficient evidence from which a jury could infer that
Bergtold intentionally or recklessly made false statements in his police report. An
29
inference of deliberate or reckless disregard for the truth is permi[ssible]” where a
statement is meaningfully “off the mark” from the truth; a minor “discrepancy” is
not enough. Newman, 773 F.3d at 772. Here, Penn has identified at least three
aspects of Bergtold’s police report that – viewed in the light most favorable to Penn
– were well “off the mark”:
Bergtold’s description of Anthony’s identification. In the police
report, Bergtold wrote that Anthony “stated” that he was “positive that
[Penn] was the [alleged thief].” (Police Rpt., ECF #36-3 at Pg. ID 752;
emphasis added.) But Anthony did not positively identify Penn. (See
Anthony Dep., ECF #40-8 at Pg. ID 1565.) Instead, Anthony said that
Penn was not the thief. (See Anthony Dep., ECF #40-8 at Pg. ID 1565.)
Bergtold thus presented the opposite of what Anthony said and did.
Bergtold’s description of Simons’ identification. Bergtold wrote in
the police report that Simons “positively identified [Penn] as the
suspect that [she] saw steal the merchandise from the store” and,
alternatively, that she was “pretty sure” that Penn was the thief. (Police
Rpt., ECF #36-3 at Pg. ID 750-51.) However, Simons never positively
identified Penn to Bergtold and never said that she was “pretty sure”
that Penn was the thief. (Simons Dep., ECF #40-9 at Pg. ID 1627.)
Instead, she told Bergtold that “she [didn’t] believe that [Penn was] the
[thief]” and that “[t]he guy [she] saw … [was] larger, taller, different.”
(Id. at Pg. ID 1639.) Thus, Bergtold presented Simons as supporting the
30
identification of Penn when, in fact, she had indicated that she did not
believe that Penn was the thief.10
Bergtold’s description of his interaction with Penn.
Finally,
Bergtold created the false impression in his police report that Penn and
the thief shared the same modus operandi in one significant respect.
Bergtold truthfully reported that when the Bed Bath & Beyond
employees confronted the thief, the thief immediately said that he was
a police officer. (See Police Rpt., ECF #36-3 at Pg. ID 749.) Bergtold
then implied that Penn followed the same strategy when Bergtold
confronted him. More specifically, Bergtold made it appear that Penn
was the one who raised the issue of his law enforcement employment
and that Penn did so as soon as he began speaking with Bergtold.
Bergtold wrote that when he first told Penn that he “needed to speak
with him,” Penn “got out of [his car], “began walking towards
[Bergtold],” stated “I am one of you,” and showed Bergtold “a badge.”
(Id.) Bergtold later highlighted that “one of the first things [Penn] told
him” was “[I am] one of you.” (Id. at Pg. ID 750.) In fact, as depicted
on Bergtold’s dash-cam video, Penn was not the one who raised the
issue of his employment as a law enforcement officer, and Penn did not
immediately identify himself as a law enforcement officer. Instead,
Bergtold raised the issue by asking Penn where he worked. And Penn
10
Bergtold did also note in his report that Simons “could not say 100% that [Penn]
was [the] suspect.” (Police Rpt., ECF #36-3 at Pg. ID 751.) But this statement does
not cure the misleading nature of Bergtold’s statements quoted above. This
statement, too, frames Simons’ actual position in a misleading way. The statement
suggests that Simons affirmatively believed that Penn was the thief but that she was
not positive that he was the thief. In fact, as noted above, she believed that Penn was
not the thief but could not be 100% certain about that fact.
31
stated that he was “one of you” only after Bergtold asked Penn where
he worked and whether Penn was armed. (See Dashcam Recording,
ECF #36-7.) Moreover, Penn did not make the “one of you” statement
immediately upon encountering Bergtold. Rather, he made it after the
two had been speaking for approximately sixty seconds. (See id.) For
all of these reasons, Bergtold’s description of his encounter with Penn
was meaningfully “off the mark.”
In sum, Penn has presented sufficient evidence that (1) Bergtold deliberately,
or with a reckless disregard for the truth, included in his police report at least three
materially false descriptions of the circumstances surrounding Penn’s conduct and
arrest and (2) these statements contributed to the issuance of criminal charges against
him. Thus, Penn has satisfied his burden of showing that Bergtold violated his
clearly-established constitutional right. Accordingly, Bergtold is not entitled to
qualified immunity on Penn’s malicious prosecution claim.
VI
For all of the reasons stated above, the Court GRANTS summary judgment
in favor of Bergtold on Penn’s unlawful arrest claim and DENIES summary
judgment to Bergtold on Penn’s malicious prosecution clam.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: April 15, 2019
32
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on April 15, 2019, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?