NO. 17-260 In the Supreme Court of the United States

TODD HARWOOD, Petitioner, v.

SUSAN JEAN KING, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

David N. Ward Counsel of Record A. Pete Lay CLAY DANIEL WALTON & ADAMS PLC 462 S. Fourth Street, Suite 101 Louisville, Kentucky 40202 (502) 561-2005 [email protected] [email protected]

Counsel for Respondent

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i

TABLE OF CONTENTS TABLE OF AUTHORITIES...... iii STATEMENT OF THE CASE ...... 1 A.Factual Background ...... 1 B.Procedural History ...... 6 REASONS FOR DENYING THE WRIT ...... 8 I. Petitioner Never Raised In The Courts Below Several Of The Issues He Now Seeks This Court To Review...... 9 II. The Fourth Amendment Question Presented Is Not Worthy Of Review...... 10 A. Manuel Answered The Question That There Is A Fourth Amendment Right To Be Free From Unlawful Pretrial Detention Without .... 10 B. The Common-Law Elements of Malicious Prosecution Guide But Do Not Control A Fourth Amendment Claim...... 12 C. This Court Has Endorsed The Use Of Favorable Termination As An Element Of A § 1983 Fourth Amendment Claim . . . 13 D. Fourth Amendment Inquiries Are Objective, Therefore, Malice Should Not Be An Element Of A § 1983 Fourth Amendment Claim ...... 14 ii

III. The Question of Absolute Immunity And The Presumption Of Probable Cause Is Unworthy Of Review ...... 19 A. The Sixth Circuit’s Decision Is Consistent With This Court’s Decision In Rehberg .19 B. The Sixth Circuit’s Holding Is Consistent With The Decisions Of All Other Appellate Courts...... 24 CONCLUSION ...... 30 iii

TABLE OF AUTHORITIES CASES Adams v. Robertson, 520 U.S. 83 (1997) ...... 10 Albright v. Oliver, 510 U.S. 266 (1994) ...... 8, 29 Anderson v. Creighton, 483 U.S. 635 (1987) ...... 17, 18 Brosseau v. Haugen, 543 U.S. 194 (2004) ...... 18 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ...... 21, 24 Burns v. Reed, 500 U.S. 478 (1991) ...... 21 Carey v. Piphus, 435 U.S. 247 (1978) ...... 12 City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ...... 9 Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015), cert. denied, 135 S. Ct. 2335 (2015) ...... 21, 24, 27, 28 Cole v. Carson, 802 F.3d 752 (5th Cir. 2015) ...... 28 Cutter v. Wilkinson, 544 U.S. 709 (2005) ...... 9 Daniels v. Williams, 474 U.S. 327 (1986) ...... 14 iv

Ex parte United States, 287 U.S. 241 (1932) ...... 23 Gerstein v. Pugh, 420 U.S. 103 (1975) ...... 22 Graham v. Connor, 490 U.S. 386 (1989) ...... 12, 14, 16 Gregory v. Louisville, 444 F.3d 725 (6th Cir. 2006), cert denied, 127 S. Ct. 962 (2007) ...... 11, 21 Hartman v. Moore, 547 U.S. 250 (2006) ...... 12, 15, 27 Heck v. Humphrey, 512 U.S. 477 (1994) ...... 7, 12, 13, 14 Hunter v. Cole, 137 S. Ct. 497 (2016) ...... 28 Illinois v. Gates, 462 U.S. 213 (1983) ...... 17 Imbler v. Pachtman, 424 U.S. 409 (1976) ...... 21 Kalina v. Fletcher, 522 U.S. 118 (1997) ...... 21 Lisker v. City of Los Angeles, 780 F.3d 1237 (9th Cir. 2015) ...... 28 Malley v. Briggs, 475 U.S. 335 (1986) ...... 15, 17, 27, 29 Manuel v. City of Joliet, 137 S. Ct. 911 (2017) ...... passim v

Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950) ...... 16, 17 Massey v. McKinley, 690 S.W.2d 131 (Ky. 1985) ...... 18 Monroe v. Pape, 365 U.S. 167 (1961) ...... 29 Moore v. Hartman, 571 F.3d 62 (D.C. Cir. 2009) ...... 23, 27 Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004) ...... 12 Rehberg v. Paulk, 566 U.S. 356, 132 S. Ct. 1497 (2012) ...... passim Sanchez v. Hartley, 810 F.3d 750 (10th Cir. 2016) ...... 28 Sanders v. Jones, 845 F.3d 721 (6th Cir. 2017) ...... 8, 24, 25 Saucier v. Katz, 533 U.S. 194 (2001) ...... 17 Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010) ...... 14, 16, 29 Wallace v. Kato, 549 U.S. 384 (2007) ...... 6, 7, 12 Wyatt v. Cole, 504 U.S. 158 (1992) ...... 20 vi

CONSTITUTION AND STATUTES U.S. Const. amend. IV...... passim 42 U.S.C. § 1983 ...... passim 1

STATEMENT OF THE CASE Petitioner presents this case as raising issues about an officer whose testimony before the was his only influence on the decision to indict. But in truth, Petitioner was the primary investigating officer whose intentional and unconstitutional actions occurred before, during, and after the legal process instigated against the Respondent, Susan King. A. Factual Background On November 5, 1998, ten days after going missing, Kyle Breeden’s body was discovered in the Kentucky River, a guitar amplifier cord bound his legs. Pet. App. 3. Breeden died from two non-exiting .22 caliber magnum gunshot wounds to the head. Id. Various KSP detectives were assigned to the case, including, Sergeant Duncan, Detective Bess, and Detective Figg. Pet. App. 3. Through their investigation, a list of twenty-seven was complied, with one being King—who was a because of her “on/off again relationship” with Breeden. Id. In October of 1998, Detectives Bess and Figg attempted to obtain a for King’s home, based on information that there were bullet holes in the floor, and she played the guitar Pet. App. 3. This request was denied. Id. A few weeks later, on November 3, 1999, Sergeant Duncan went to King’s home and asked about the bullet holes. Id. at 4. King showed Sergeant Duncan the two holes in the kitchen floor and explained that she fired a .22 caliber handgun into the floor and ceiling to scare away a person named “Bo” who was making sexual advances toward her. Id. 2

Without having any new information, Sergeant Duncan directed Detective Figg to attempt to obtain a search warrant, however, the request was again denied. Id. Breeden’s homicide investigation went cold for seven years until May 22, 2006, when Petitioner was assigned to the case. Pet. App. 5. Most of Petitioner’s initial investigation was undocumented, including conversations with prior KSP detectives assigned to the case as well as interviews with Breeden’s mother, two individuals considered suspects, and two interviews with King. Id. On June 12, 2006, Petitioner, armed with the same information that was insufficient for Detectives Bess and Figg to secure a search warrant, obtained a search warrant for King’s home. Pet. App. 5. Petitioner’s affidavit in support of the search warrant contained deliberately misleading information, omitting: that the two .22 caliber bullets that killed Breeden were non- exiting, King only had one leg (and at the time, did not have a prosthetic leg), and she weighed only 100 pounds, while Breeden weighed 187 pounds—making it physically impossible for her to Breeden as theorized by Petitioner. Id. at 7-8.1 Upon arriving at King’s home to execute the search warrant, Petitioner told King that she had to go with

1 According to Petitioner, King shot Breeden in her home, then scooted herself along the floor, out the back door, and to a car, dragging Breeden’s body along. Pet. App. 7-8. King then lifted Breeden’s body off the ground and placed him into the trunk. Id. She then supposedly drove to a bridge forty miles away, where she again lifted the body out of the trunk, and then threw the body over the side railing of the bridge. Id. 3 him while the other detectives searched her home. Pet. App. 8. When King objected, Petitioner stated, “If you don’t get in my car, I will take away your crutches, handcuff you, and drag you across that gravel driveway and put you in my car.” Id. Believing that she had no other option, King got into Petitioner’s vehicle, and he proceeded to speed away from her home, yelling at her about how he knew she murdered Breeden. Id. After driving around for several hours, during which King profusely denied having any connection or involvement with Breeden’s murder, Petitioner returned to King’s home. Id. At the conclusion of the search, Petitioner recovered a section of King’s kitchen floor and a .22 caliber bullet, among other items. Pet. App. 8. After analyzing the bullet, KSP’s lab determined that the bullet discovered underneath the kitchen floor was not the same type of bullet as the two found in Breeden’s skull. Id. KSP’s lab further reported that the section of King’s floor Petitioner removed did not contain any cleaning materials. Id. at 10. On July 27, 2006, Petitioner sought a second search warrant for King’s home. Pet. App. 8. At the conclusion of that search, Petitioner recovered 130 bullets from a tree in King’s back yard used for target practice. Id. KSP’s lab again determined that none of the bullets from the tree matched the bullets found in Breeden’s skull. Id. On April 3, 2007, Petitioner spoke with the KSP lab technician who compared the two bullets from Breeden’s skull with the one found in King’s floor. Pet. App. 8-9. The lab technician explained that the .22 caliber bullet recovered from King’s floor was a 4 standard .22 caliber bullet with a copper wash, which is completely different from the bullets found in Breeden’s head, which were .22 caliber magnum bullets with a complete copper jacket. Id. Because a .22 caliber magnum bullet has a considerably larger cartridge than a standard .22 caliber bullet, a magnum bullet will not fit in the chamber of a gun designed to shot a standard .22 caliber bullet. Id. On April 5, 2007, Petitioner testified before the grand jury, and King was indicated for murder. Pet. App. 9. On June 7, 2007, Petitioner again testified before the grand jury, and King was indicted for tampering with physical . Id. at 10. Petitioner’s testimony before both grand juries was riddled with false and misleading statements, including: no comparison could be performed on the bullets found in Breeden’s skull with the one found in King’s floor and King cleaned up the kitchen with some sort of cleaning product after the murder. Id. at 9-10. In August of 2008, King was offered a agreement, in which the Commonwealth agreed to a ten-year for manslaughter and a five-year concurrent sentence for tampering with physical evidence. Pet. App. 10. While considering the offer, King’s told her that she did not believe she was innocent and if she went to trial, a jury would give her the death penalty. Id. Petitioner also told King that she would spend the rest of her life in jail, or get the electric chair, if she decided to go to trial. Id. Based on these statements, and the fact that King was told she would be paroled in seven months because she already served seventeen months awaiting trial, King—maintaining her innocence—entered an Alford 5 plea. Id. at 10-11. King, however, was not paroled, but instead, remained in prison for the next five years. On May 3, 2012, a serial murderer named Richard Jarrell was arrested attempting to kill Barron Morgan’s confidential informant. Pet. App. 11. After being arrested, Jarrell told Morgan, a detective with the Louisville Metro Department (“LMPD”), that he had committed three and a violent assault. Id. Jarrell was willing to confess to these in order to work out a deal for his brother who was in federal custody after being caught with over twenty kilograms of cocaine. Id. Jarrell described to Morgan, and later to an LMPD homicide detective, how he killed Breeden and a woman was in jail for the murder. Id. On May 11, 2012, Petitioner, unbeknown to anyone at LMPD, traveled to Louisville, Kentucky and tape- recorded an interview with Jarrell. Pet. App. 11. During this interview, Petitioner intimidated Jarrell into recanting his confession, encouraging him to remain quite. Id. A few days later, Morgan went back to interview Jarrell, who now refused to provide any information about Breeden’s murder or the other murders he previously committed. Id. Instead, Jarrell told Morgan that after his interview with Petitioner, he understood that he needed to keep quite. In May of 2012, Morgan sent the Kentucky Innocence Project a copy of Jarrell’s confession. Pet. App. 12 & n.1. The Kentucky Innocence Project had gotten involved in King’s case shortly after she was sentenced, believing she was innocent. After receiving the confession, the innocence project filed a motion for a new trial and to vacate King’s Alford plea. 6

On June 5, 2012, Petitioner prepared a six-page report outlining his interview with Jarrell and how he recanted his confession. Petitioner was able to prepare this detailed report even after “losing” his digital recorder. Pet. App. 11. Despite knowing the recorder was missing for over a month, Petitioner waited until days before the hearing on King’s motion for a new trial to document in the case file the lost recorder. On July 19-20, 2012, the Spencer Circuit Court heard testimony on King’s motion, which the judge denied on October 5, 2012. Pet. App. 11-12. King appealed the court’s denial of her motion, and on July 18, 2014, the Kentucky Court of Appeals reversed the circuit court’s decision and remanded the case back for a trial on the indicted offenses. Id. at 12. On October 9, 2014, the Spencer Circuit Court entered an order dismissing the charges against King, thus, terminating her criminal prosecution. Id. at 12-13. B. Procedural History 1. King sued Petitioner and other defendants in the U.S. District Court for the Western District of Kentucky. King brought claims under 42 U.S.C. § 1983 (“§ 1983”) and state tort law. Pet. App. 2. The allegations in the complaint focus on seeking redress for the injuries she sustained as a result of Petitioner and defendants improperly initiating and/or maintaining formal criminal proceedings against her, which lacked probable cause. On October 15, 2015, defendants filed a motion to dismiss/summary judgment. The district court granted defendants’ motion, finding that King’s claims were time-barred under Wallace v. Kato, 549 U.S. 384 7

(2007). Pet. App. 51-53. The district court further held that the record reflected sufficient probable cause to prosecute King, and therefore, there were no genuine issues of material fact so defendants were entitled qualified immunity. Id. at 53-56. 2. King filed an appeal challenging the district court’s grant of summary judgment. The Sixth Circuit reversed the lower court, finding that under Heck v. Humphrey, 512 U.S. 477 (1994), King’s malicious prosecution claims were not time barred and did not accrue until her criminal charges were terminated in her favor. Pet. App. 16-18. The Sixth Circuit further held that a genuine issue of material fact exists as to whether the facts and circumstances known to Petitioner would be sufficient to lead an ordinarily prudent person to believe that probable cause existed to support the prosecution of King. Pet. App. 20-25. The court further found that the district court erred in granting summary judgment to Petitioner on the issue of qualified immunity because genuine issues of material fact existed. Id. at 25-28.2 The Sixth Circuit further addressed the issue of absolute immunity for a grand jury witness, which was “not developed extensively below.” Pet. App. 28. The Sixth Circuit carved out an exception to the presumption of probable cause created by an

2 The Sixth Circuit upheld the dismissal of the other defendants and the claims against Petitioner not related to King’s Fourth Amendment malicious prosecution claim and “‘all of [her] other claims [that] are dependent upon her action for malicious prosecution’ and [were] dismissed [ ] along with her malicious- prosecution claims.” Pet. App. 44-45. 8 .3 Now, instead of using grand jury testimony to rebut the presumption, the focus must be on the alleged wrongdoings in the investigation resulting in the unconstitutional seizure. Id. at 36. 3. Petitioner sought rehearing en banc. The Sixth Circuit denied the petition without any judge requesting a vote. Pet. App. 58. The court then remanded the case to the district court for further proceedings. REASONS FOR DENYING THE WRIT The Sixth Circuit faithfully applied the guidance provided in Albright and Manuel, to hold that King has set forth a claim of unlawful pretrial detention in violation of her Fourth Amendment rights. Petitioner’s confusion of the issues regarding the labeling of King’s claim as one for “malicious prosecution” should not mislead this Court to review the fact that there is a clearly established claim under § 1983 and the Fourth Amendment to be free from unlawful pretrial detention without probable cause. Petitioner’s absolute immunity argument is also unworthy of review. The Sixth Circuit’s holding that the presumption of probable cause created by an indictment can be rebutted, just not with grand jury testimony, is in line with Rehberg and all of the other circuit courts that have addressed the issue.

3 In Sanders v. Jones, 845 F.3d 721, 734 (6th Cir. 2017), the Sixth Circuit, relying on Rehberg, barred the use of grand jury testimony to rebut an presumption of probable cause, but noted that it was not foreclosing all § 1983 claims. 9

I. Petitioner Never Raised In The Courts Below Several Of The Issues He Now Seeks This Court To Review. Petitioner raises three issues for this Court to review that were not raised below: (1) whether the Fourth Amendment supports a § 1983 malicious prosecution claim, Pet. 9; (2) whether favorable termination and malice are elements of a § 1983 Fourth Amendment claim, id. at 15, 20; and (3) whether a grand jury indictment is conclusive proof of probable cause that cannot be rebutted because of absolute immunity, id. at 21-22.4 Petitioner never raised these specific arguments in the district court or in his Brief to the Sixth Circuit. Instead, the first time these issues were raised was in the Petition for Rehearing En Banc. A party must present arguments to the lower courts in order for an issue to properly matriculate to this Court. A party should not be rewarded for withholding arguments until filing the petition. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (noting that this Court is “a court or review, not of first view”). Petitioner has done just that, he never raised these issues until belatedly in the en banc request. See City of Canton, Ohio v. Harris, 489 U.S. 378, 383 (1989) (noting that there is a non-jurisdictional basis to deny a petition on the failure to argue below, but the issue was waived by respondent for failure to raise it in a brief in

4 While Petitioner did argue in the district court that his testimony before the grand jury—pursuant to Rehberg—is entitled to absolute immunity, Pet. App. 28, he never argued that a grand jury indictment is conclusive proof of probable cause that cannot be rebutted. Pet. 21-22. 10 opposition). Becuase Petitioner never raised these issues until the en banc process, neither the Sixth Circuit nor the district court decided the questions now presented. Thus, Petitioner cannot meet his “burden of showing that the issues were properly presented” to the court being reviewed, Adams v. Robertson, 520 U.S. 83, 86 (1997), and therefore, this Court should deny thepetition. II. The Fourth Amendment Question Presented Is Not Worthy Of Review. Petitioner’s first question asks this Court to review “[w]hether a § 1983 malicious prosecution claim exists under the Fourth Amendment.” Pet. i. The petition, however, seeks review of the existence of a § 1983 claim under the Fourth Amendment as well as what elements comprise such a claim, including whether malice and favorable termination are a part of those elements. Id. at 15, 20. Thus, it is unclear from the question presented if Petitioner is only challenging the existence of a § 1983 malicious prosecution claim or the elements that comprise such a claim or both. Nevertheless, both of these issues are addressed below. A. Manuel Answered The Question That There Is A Fourth Amendment Right To Be Free From Unlawful Pretrial Detention Without Probable Cause. In Manuel v. City of Joliet, 137 S. Ct. 911, 918-19 (2017), this Court held that a plaintiff can sustain a § 1983 claim under the Fourth Amendment for deprivations of liberty suffered as a result of improper or maliciously instituted legal process. “If the complaint is that a form of legal process resulted in 11 pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.” Id. The Fourth Amendment protects individuals from unlawful pretrial detention that occurs pursuant to legal process without regard to the label that may attach to such a § 1983 claim. Id. at 917- 18. Petitioner attempts to skirt the holding in Manuel by arguing that this Court did not resolve the issue of whether a person has a right under Fourth Amendment to be free from malicious prosecution. Pet. 10-11. However, Petitioner’s argument is merely a “name-game,” where he places an inflated value on the label of King’s claim as one for “malicious prosecution,” id. at 16, but does not look at the substance of King’s claim. See Gregory v. Louisville, 444 F.3d 725, 749 (6th Cir. 2006), cert denied, 127 S. Ct. 962 (2007) (stating that while sometimes styled as “malicious prosecution” claims, courts recognize that such actions simply seek redress for “continued detention without probable cause.”). As the Sixth Circuit recognized here, King’s “malicious prosecution claim” was one for unreasonable seizure without probable cause, Pet App. 21-22, and the use of the “malicious prosecution” label serves only as a shorthand way of describing this kind of claim. Accordingly, Manuel, disposes of Petitioner’s argument that there is no support in the Constitution or this Court’s opinions for the rule that malicious prosecution itself violates the Fourth Amendment. Pet App. 11. The Fourth Amendment protects King throughout the pretrial process—from initial through trial. Manuel, 137 S. Ct. at 920 n.8. Regardless of the title that attaches to the claim, the Sixth Circuit, 12 in conformity with Manuel, recognizes a claim under the Fourth Amendment for unlawful pretrial detention without probable cause. Consequently, the issue Petitioner puts forth for review has already been decided by this Court. B. The Common-Law Elements of Malicious Prosecution Guide But Do Not Control A Fourth Amendment Claim. A constitutional tort permits a claim only “for injuries caused by the deprivation of constitutional rights,” Carey v. Piphus, 435 U.S. 247, 254 (1978), and therefore, “does not provide a federal cause of action for every violation of state common law,” Pierce v. Gilchrist, 359 F.3d 1279, 1285–90 (10th Cir. 2004). Instead, the interests protected by a common law tort may parallel closely the interests protected by a particular constitutional tort, but not in all cases. Carey, 435 U.S. at 258. The common law principles act only as a guide in the inquiry of a Fourth Amendment violation, but do not control the inquiry. Hartman v. Moore, 547 U.S. 250, 258 (2006). Accordingly, the common law tort principles provide the “starting point” for defining the elements of damages and “the prerequisites for their recovery” under federal law, Carey, 435 U.S. at 257-58, including favorable termination, see Wallace, 549 U.S. at 388; Heck, 512 U.S. at 489-90, and malice, see Graham v. Connor, 490 U.S. 386, 399 (1989). Petitioner argues that the malicious prosecution tort is inapt to claims of Fourth Amendment violations. Pet. 10, 13. However, as stated above, just because malicious prosecution is the most analogous common law tort does not mean that this Court must adopt all 13 of the elements in the formation of a § 1983 Fourth Amendment claim. See Heck, 512 U.S. at 483-84 (adopting the favorable termination element of a malicious prosecution claim without requiring plaintiffs to meet any of the other elements). Moreover, this Court in Manuel, recognized that the common-law tort of malicious prosecution fits Manuel’s Fourth Amendment claim “as hand in glove,” and rejected the dissent’s position, which is the same as Petitioner’s, that the Fourth Amendment’s protections do not extend to his unlawful detention because the claim does not fit perfectly within the tort of malicious prosecution. Id. at 917. C. This Court Has Endorsed The Use Of Favorable Termination As An Element Of A § 1983 Fourth Amendment Claim. Petitioner questions whether a Fourth Amendment claim includes the element of favorable termination, arguing that the Sixth Circuit has not considered the termination element for malicious prosecution claims, when a “‘Fourth Amendment wrong is fully accomplished when an impermissible seizure occurs,’ regardless of how the prosecution ends.” Pet. 20 (citations omitted). However, Petitioner is wrong to question the inclusion of a favorable termination element in a § 1983 Fourth Amendment claim. In Heck, this Court—in a § 1983 action for damages attributable to an unconstitutional conviction—adopted the accrual date for the common-law tort of malicious prosecution, which is the favorable termination of the criminal proceedings. 512 U.S. at 485. The favorable termination requirement was adopted to “avoid[ ] parallel litigation over the issues of probable cause and 14 ” which could create “two conflicting resolutions arising out of the same or identical transaction.” Id. at 484-86. Based on Heck, every court that recognizes a Fourth Amendment claim, like King’s, has incorporated the “favorable termination” element and so pegged the to the dismissal of the underlying criminal case. Manuel, 137 S. Ct. at 921, n.4 & 9; see Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). The use of the favorable termination element of a malicious prosecution claim “attend[s] the values and purpose of the constitutional right at issue,” that is, the Fourth Amendment right to be free from unlawful pretrial, post-legal-process detention. Id. at 921. D. Fourth Amendment Inquiries Are Objective, Therefore, Malice Should Not Be An Element Of A § 1983 Fourth Amendment Claim. Although the common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here, Manuel, 137 S. Ct. at 917, nothing in the text of the Constitution or § 1983 warrants importing the subjective inquiry into malice, which is foreign to Fourth Amendment analysis. Adopting a subjective malice element would be inconsistent with the holding in Daniels v. Williams, 474 U.S. 327, 329–30 (1986), which found, “§ 1983...contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” See also Graham, 490 U.S. at 397–99 (stating that a malicious and sadistic factor required by the lower court in a Fourth Amendment excessive force claim was inappropriate 15 because the factor put at issue the subjective motivations of the officers); Hartman, 547 U.S. at 258. In Malley v. Briggs, 475 U.S. 335, 341 (1986), this Court explained why adopting subjective malice is not appropriate: At common law, in cases where probable cause to arrest was lacking, a complaining witness’ immunity turned on the issue of malice, which was a jury question. Under the Harlow standard, on the other hand, an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner. The Harlow standard is specifically designed to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,” and we believe it sufficiently serves this goal. Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized. In Manuel, this Court implicitly recognized that subjective malice should not be a part of a Fourth Amendment claim. According to the majority, one species of a Fourth Amendment claim for unlawful pretrial detention occurs when a person is arrested and detained pursuant to an . 137 S. Ct. 919 n.6. Under Malley, 475 U.S. at 344-45, it is unnecessary to prove malice in such a claim. 16

Even Justice Alito’s dissent in Manuel recognizes that the common-law concept of malice generally has no place in a Fourth Amendment claim. Manuel, 137 S. Ct. at 925 (Alito, J., dissenting). This is because questions under the Fourth Amendment are grounded in decisions of “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. Consistent with the above cases, the Sixth Circuit does not require subjective malice as an element of a Fourth Amendment claim. In Sykes, 625 F.3d at 309- 310, the court noted, “Fourth Amendment jurisprudence makes clear that we should not delve into the defendants’ intent. The reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective, which, even in the context of malicious-prosecution claims, renders ‘irrelevant’ the subjective state of mind of the defendant, whether good faith or ill will.” (internal citations omitted). While Petitioner is correct that a split exists in courts regarding the inclusion of malice as an element of a § 1983 claim, Pet. 14-15, this fact alone does not warrant review of this issue for several reasons. First, as stated above, Manuel recently provided guidance to lower courts on this issue. Therefore, the lower courts should be given an opportunity to re- assess the inclusion of malice as an element in a Fourth Amendment claim, before the issue is considered to be taken up for review by this Court. Maryland v. Baltimore Radio Show, 338 U.S. 912, 918 17

(1950) (Frankfurter, J., respecting denial of certiorari) (noting that it is “desirable to have different aspects of an issue further illuminated by the lower courts. Wise adjudication has its own time for ripening.”). Second, the absence of any malice or bad faith requirement for a § 1983 plaintiff challenging her pretrial detention under the Fourth Amendment will not make much practical difference in the mine-run of cases—and certainly makes no difference here. That is because a § 1983 Fourth Amendment claim requires a plaintiff to overcome qualified immunity. When qualified immunity is raised, the district court must conduct a two-step inquiry. The first is to decide whether the complaint alleges a violation of a constitutionally protected right. Saucier v. Katz, 533 U.S. 194, 201 (2001). The next step is to ask whether the unconstitutionality of the official’s conduct was clearly established at the time the official acted. Id. The above formula serves the same goal as the common-law malice requirement. Malley, 475 U.S. at 341. The layering of the reasonableness inquiry for qualified-immunity on top of the “practical, common- sense” standard for determining the existence of probable cause provides particular protection to law enforcement officials. Illinois v. Gates, 462 U.S. 213, 238 (1983). Because “it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present,” the Court has held that “in such cases th[e] officials—like other officials who act in ways they reasonably believe to be lawful—should not be held personally liable.” Anderson v. Creighton, 483 U.S. 635, 18

641 (1987). Therefore, even if a plaintiff can establish a lack of probable cause, the defendant is still immune if the question of whether probable cause existed under the case’s particular facts was reasonably debatable, such that the defendant’s conduct fell “in the hazy border” between legality and illegality. Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam) (internal quotation marks omitted). Thus, even the mistaken judgments of law enforcement officials will not expose them to liability so long as they are reasonable. Third, even if a conflict exists between the circuits after Manuel, the petition should still be denied because resolution of whether malice is an element of a § 1983 Fourth Amendment claim for pretrial detention without probable cause would have no practical effect on the outcome of the present case. King alleges in the Complaint claims under § 1983 for violating her Fourth Amendment rights and state law malicious prosecution. Dkt #1, Comp. ¶¶ 147-157, PageID# 19-20. Under Kentucky law, malice is an element of a state law malicious prosecution claim, and “can be inferred from a lack of probable cause.” Massey v. McKinley, 690 S.W.2d 131, 134 (Ky. 1985). Thus, if this Court decides to review this question, and sided with Petitioner, such a determination would have no practical effect on the present case. King has sufficiently alleged malice as an element of her Kentucky common law claim, Pet. App. 44-45, and the Sixth Circuit found that a genuine issue of material fact exists regarding probable cause, id. at 20-25. Given the foregoing, the petition should be denied. 19

III. The Question of Absolute Immunity And The Presumption Of Probable Cause Is Unworthy Of Review. Certiorari is unwarranted for two compelling reasons. First, the Sixth Circuit’s holding in King v. Harwood does not conflict with this Court’s precedent. Instead, Petitioner manufactures a conflict by intertwining two distinct legal issues: absolute immunity and the presumption of probable cause created by a grand jury indictment. Pet. 22. Petitioner argues that by barring the use of grand jury testimony to rebut the presumption of probable cause created by an indictment, Rehberg absolves government actors from all acts that preceded it. Id. However, Rehberg never addressed or even contemplated the interplay between absolute immunity and the presumption of probable cause created by an indictment. Second, there is no split in the circuits on this issue. Each and every federal circuit that has addressed the presumption of probable cause created by an indictment has allowed the presumption to be rebutted so long as grand jury testimony is not relied upon. A. The Sixth Circuit’s Decision Is Consistent With This Court’s Decision In Rehberg. In Rehberg v. Paulk, this Court held that a grand jury witness, including a law enforcement officer, “has absolute immunity from any § 1983 claim based on the witness’ testimony,” even if that testimony is perjurious. 566 U.S. 356, 369 (2012). In determining the immunity inquiry, the Court used the “functional approach,” which focuses on the nature of the function 20 performed, not the identity of the actor who performed it. Id. at 364-65. The Court then distinguished a modern grand jury witness from a traditional “complaining witness” who is not entitled to absolute immunity because that witness “set[s] the wheels of government in motion by instigating a legal action.” Id. at 370 (citing Wyatt v. Cole, 504 U.S. 158, 164-65 (1992)). This Court’s unanimous decision made a clear distinction in its opinion, “We do not suggest that absolute immunity extends to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits and fabricate evidence concerning an unsolved .” Id. at 370 n.1 (citations omitted). Relying on “the plain language and intent of Rehberg,” the Sixth Circuit in this case held that the presumption of probable cause created by an indictment could be rebutted, just not with grand jury testimony, for which the officer is afforded absolute immunity. Pet. App. 37-38 (“maintaining the viability of malicious-prosecution claims against officers who wrongly set prosecutions in motion is rooted in the common-law distinction of ‘complaining witnesses,’ who—unlike testifying witnesses—were not afforded absolute immunity, as Rehberg details at length.”). “[A]n officer’s actions of wrongly setting a prosecution in motion or falsifying or fabricating evidence may be material to the grand-jury indictment even though they do not constitute ‘testimony’... and nothing in the case law indicates that such actions somehow mutate into grand-jury testimony simply because they are material to the return of an indictment.” Id. at 40-41. 21

The Sixth Circuit’s holding is consistent with Kalina v. Fletcher, 522 U.S. 118, 130 (1997) (denying absolute immunity to prosecutor when functioning as a “complaining witness”), and Buckley v. Fitzsimmons, 509 U.S. 259, 275 & n.6 (1993) (finding that prosecutors, like detectives, are not entitled to absolute immunity for unlawful actions taken during a preliminary investigation). The holding is also consistent with this Court’s historic approach to absolute immunity, which is reserved for conduct “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Outside of this context, qualified immunity is presumed “sufficient to protect government officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87 (1991). Adopting Petitioner’s broad interpretation of Rehberg would immunize the subject matter of the officer’s testimony, rather than the testimony itself, a profound shift from existing precedent. As one court noted in rejecting such a theory, “Any police officer could immunize ... any unlawful conduct prior to and independent of his perjurious grand jury appearance merely by testifying before a grand jury.” Coggins v. Buonora, 776 F.3d 108, 112 (2d Cir. 2015), cert. denied 135 S. Ct. 2335 (2015). Rehberg sensibly did not extend absolute immunity “to all activity that a witness conducts outside of the grand jury room.” 568 U.S. at 370 n.1; Gregory, 444 F.3d at 738 (“This Circuit...has held that absolute testimonial immunity does not relate backwards to protect a defendant for any activities he allegedly engaged in prior to taking the witness stand for his testimony.”). Moreover, Petitioner’s interpretation of Rehberg is wholly 22 inconsistent with this Court’s repeated recognition that a Fourth Amendment violation occurs when a seizure is made without probable cause. Manuel, 137 S. Ct. at 914, 918-19 & nn.2 & 8; e.g. Gerstein v. Pugh, 420 U.S. 103, 114-16 (1975). Thus, contrary to Petitioner’s argument, a law enforcement officer cannot use the grand jury as a way to inoculate earlier unlawful acts. Based on Petitioner’s incorrect interpretation of Rehberg, he further argues that the Sixth Circuit created an exception in conflict with Rehberg’s “conclusiveness of a grand jury indictment on the existence of probable cause.” Pet. 24-25. Now, officers are only afforded qualified immunity for “set[ting] the wheels of government in motion by instigating a legal action.” Id. By creating this exception—Petitioner claims—King is now able to rebut the presumption of probable cause created by an indictment because the act of instigating a legal action is only afforded qualified immunity, similar to falsifying affidavits and fabricating evidence. Id. This argument is utterly flawed, misrepresents the actual holding in Rehberg, and fails to grasp the reason the Court discussed a “complaining witness” in its opinion. First, there is no relationship between whether a law enforcement officer is entitled to absolute or qualified immunity and the presumption of probable cause created by an indictment. Second, Manuel put to bed any notion that an indictment’s finding of probable cause cannot be rebutted. As Manuel explained, if the legal process “goes wrong” or is “tainted”—“when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements” or where a 23 grand jury indictment “was entirely based on false testimony”—then it does not extinguish [a Fourth Amendment] claim. Id. at 918, 920 n.8. “Legal process” does not “expunge [a] Fourth Amendment claim” where “the process [a criminal defendant] received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe he committed a crime.” Id. at 919-20. Third, an indictment’s presumption of probable cause can be rebutted for purposes of a Fourth Amendment claim, as an arrest without probable cause still violates a person’s Fourth Amendment rights even if the case moves through the legal process. Id. This finding is consistent with Ex parte United States, where this Court stated that a grand jury indictment, “fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer.” 287 U.S. 241, 250 (1932) (emphasis added). This holding distinguishes the conventions of criminal proceedings from § 1983 cases. “Probable cause was deemed to be established for the purpose of proceeding to criminal adjudication, and not for the purpose of contesting the existence of the elements of a later civil action for malicious or retaliatory prosecution.” Moore v. Hartman, 571 F.3d 62, 68 (D.C. Cir. 2009). Moreover, this Court has only applied the presumption of probable cause to criminal cases. Nothing in Rehberg suggests that the Court intended to abolish malicious prosecution claims because the grand jury returned an indictment. An indictment “does not retroactively transform” investigatory acts “from the administrative into the prosecutorial.” 24

Buckley, 509 U.S. at 276. This conspicuous conclusion has been reached in some fashion by every other court to review it. B. The Sixth Circuit’s Holding Is Consistent With The Decisions Of All Other Appellate Courts. The Sixth Circuit’s contemporaneous holding in Sanders does not conflict with the court’s holding in the present case or any of the other circuit courts that have addressed the presumption of probable cause created by an indictment. Every circuit court to address this issue has allowed the presumption of probable cause to berebutted, so long as the plaintiff does not resort to theofficer’s grand jury testimony. In Sanders, the court used Rehberg to find that a plaintiff cannot establish a lack of probable cause using only grand jury testimony. 845 F.3d at 734. In reaching its decision, the Sixth Circuit adopted the Second Circuit’s holding in Coggins, which relied upon Rehberg to find that a plaintiff can make out the elements of a § 1983 claim without resorting to grand jury testimony. Id. Sanders further recognized that Rehberg left the door open for § 1983 claims against grand jury witnesses for falsifying affidavits, fabricating evidence, and “set[ting] the wheels of government in motion by instigating a legal action.” Id. at 734 & n.6 (citations omitted). Petitioner denies that these cases are reconciled by merely saying this language is dicta. Pet. 27, n.15. This language is not dicta. The Sixth Circuit’s original opinion in Sanders only stated that Rehberg left the door open for some § 1983 claims against grand 25 jury witnesses for claims involving falsifying affidavits and fabricating evidence. Sanders, 845 F.3d at 734. After the plaintiff moved for a rehearing and rehearing en banc, the Sixth Circuit amended the opinion, inserting footnote 6. Rehberg also distinguished officers who, prior to and independent of any grand-jury testimony they might give, “set the wheels of government in motion by instigating a legal action.” Rehberg, 566 U.S. at 371, 132 S. Ct. 1497 (quoting Wyatt v. Cole, 504 U.S. 158, 164–65 (1992)). Rehberg apparently left the door open for at least some § 1983 claims against such officers, whose actions would be entitled only to qualified immunity rather than absolute immunity. Id. at 371–73, 132 S. Ct. 1497. Because Sanders has not alleged that Jones’s actions rose to the level of “instigating” Sanders’s prosecution, however, we have no occasion to decide whether or how a plaintiff in this circuit would be able to overcome the presumption of probable cause created by a grand-jury indictment in order to bring such a malicious-prosecution claim. Order Amending Op., Doc. 48-1, Sanders v. Jones, 845 F.3d 721, 734 (6th Cir. 2017), as amended on denial of reh’g (Mar. 20, 2017) (No. 15-638). The Sixth Circuit’s holding in this case is based on Rehberg and Manuel, as well as Sanders, which the Sixth Circuit acknowledged it did not have the factual occasion to articulate an exception to overcoming the presumption of probable cause. Sanders, 845 F.3d at 734. In this case, the court acknowledged that the presumption of probable cause could not be rebutted by 26 using grand jury testimony. Pet. App. 34. Instead, the key determination in whether grand jury testimony is conclusive of immunity is whether the officer “set the prosecution in motion.” Id. at 29. Accordingly, “evidence of an officer’s actions prior to and independent of his grand jury testimony may call into question the presumption of probable cause created by an indictment even if a malicious prosecution plaintiff may not bring in evidence of the grand jury testimony itself to do it.” Id. at 41. In the Sixth Circuit’s opinion, the court outlined the standards to be applied to rebut the presumption of probable cause, with the key inquiry being knowing or reckless false statements and those statements (or omissions) material to the ultimate prosecution. 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 ... 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 ..., the presumption that the grand-jury indictment is evidence of probable cause is rebuttable and not conclusive. Pet. App. 36. The Sixth Circuit’s holding is in line with Manuel and other circuit court opinions—all of which allow for 27 the presumption of probable cause created by an indictment to be rebutted. See Moore, 571 F.3d at 67 (stating that the First, Second, Third, Fifth, Ninth, Tenth, Eleventh, and D.C. Circuits all consider a grand jury indictment to be “prima facie evidence of probable cause which may be rebutted”). Allowing for an indictment’s presumption of probable cause to be rebutted is similar to allowing the presumption of probable cause created by a warrant application to be rebutted. Malley, 475 U.S. at 344 & n.7. Both allow an officer to be liable for seizing a person without probable cause in violation of the Fourth Amendment. Id. In Moore, the D.C. Circuit held that a grand jury indictment creates presumptive, not conclusive, evidence of probable cause, and determined this holding was in accord with this Court’s decision in Hartman. 571 F.3d at 68-69. This Court held in Hartman, a plaintiff need only show “some evidence” of a lack of probable cause to succeed on a retaliatory prosecution claim. Hartman, 547 U.S. at 263. This is true regardless of whether the plaintiff had been indicted by a grand jury. And this burden could be met “by looking to ‘a distinct body of highly valuable circumstantial evidence available...showing whether there was or was not probable cause to bring the criminal charge.’” Moore, 571 F.3d at 68. This conclusion, “support[s] our interpretation that the Court viewed the [grand jury] indictment as prima facie—not conclusive—evidence of probable cause.” Id. In Coggins, the Second Circuit allowed a malicious prosecution claim to proceed where officers “falsified and omitted material facts from police reports.” 776 F.3d at 109. A grand jury subsequently indicted 28 plaintiff, however, the criminal charges were later resolved in his favor. Relying on Rehberg’s holding that “a grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony,” the court concluded that a plaintiff may pursue a malicious prosecution claim so long as “the claim exists independently of the grand jury testimony.” Id. at 112- 13. Because plaintiff’s claim was not based on material presented to the grand jury, but instead, based on the officer’s fabricated and reckless police report, and the statements made to the prosecutor, which “laid the groundwork” for the plaintiff’s indictment, probable cause could be rebutted. Id. Coggins is in line with other circuit courts, which do not allow a grand jury indictment to inoculate earlier fraudulent or reckless investigations from review, as long as the lack of probable cause can be shown without resorting to grand jury testimony. See Lisker v. City of Los Angeles, 780 F.3d 1237, 1242 (9th Cir. 2015) (finding that absolute immunity does not apply to defendants pretrial, out-of-court, fabrication of evidence, even though the evidence is inextricably tied to their grand jury testimony); Cole v. Carson, 802 F.3d 752, 775 (5th Cir. 2015), vacated on other grounds by sub nom., Hunter v. Cole, 137 S. Ct. 497 (2016) (finding that despite a grand jury indicting plaintiff, “an officer who lies to investigating officers in order to try to get someone charged with a crime—before the decision to charge has been made—is not entitled to absolute testimonial immunity”); Sanchez v. Hartley, 810 F.3d 750, 755 (10th Cir. 2016) (same). Petitioner further asserts that the “Sixth Circuit’s exception omits the required causal connection to a 29 deprivation of a Fourth Amendment right.” Pet. 28. Petitioner’s assertion is erroneous. A law enforcement officer should be considered to have initiated criminal charges when the officer “sets the wheels of government in motion” through falsehoods, misrepresentations, and omissions, which led to a person’s arrest, despite the lack of probable cause. Albright v. Oliver, 510 U.S. 266, 279 & n.5 (1994) (Ginsburg, J., concurring); see also Monroe v. Pape, 365 U.S. 167, 187 (1961) (Section 1983 should be implemented according to “the background of tort liability that makes a man responsible for the natural consequences of his actions”). If there was a lack of probable cause throughout the investigation, but in order to induce the prosecutor to act, the officer omits facts and falsifies other facts, then it clearly cannot be the prosecutor who made the decision to present the case to the grand jury. Surely, a prosecutor who looked at all the evidence, and determined such evidence lacked probable cause, would not still submit the case to the grand jury. See Malley, 475 U.S. at 344 & n.7 (An officer may be held liable for the submission of an objectively unreasonable warrant application that causes an ensuing arrest, even though a judge issued the warrant); Manuel, 137 S. Ct. at 920 n.8 (Fourth Amendment claim was not expunged where an indictment “was entirely based on false testimony.”); Sykes, 625 F.3d at 315 (6th Cir. 2010) (“holding [an officer] liable for all reasonably foreseeable consequences of his initial misdeed finds support in the Supreme Court’s decision in Malley...”). Because Petitioner made false and misleading reports and representations to the prosecutor in support initiating criminal charges against King, it was 30 reasonably foreseeable that such information would induce the prosecutor to initiate criminal charges and result in King’s Fourth Amendment rights being violated. CONCLUSION For the reasons set forth above, the Petition for a Writ of Certiorari should be denied. Respectfully submitted, David N. Ward Counsel of Record A. Pete Lay CLAY DANIEL WALTON & ADAMS PLC 462 S. Fourth Street, Suite 101 Louisville, Kentucky 40202 (502) 561-2005 [email protected] [email protected] Counsel for Respondent