Gregory v. City of Louisville, Nos. 04-5856/5859/6482, U.S. Court of Appeals for the Sixth Circuit, 4-11-2006.

 

The Sixth Circuit Court of Appeals reinstated the lawsuit of William T. Gregory against the City of Louisville.  The claim resulted from the improper use of a one-on-one witness identification, and the failure to disclose exculpatory evidence which favored the defendant. Gregory served eight years in prison before being released.  This decision was released on April 11, 2006.

 

This decision discusses important issues regarding police line ups, and the duty of the police to disclose exculpatory evidence.  The court reinstated the lawsuit filed under 42 U.S.C. § 1983 and various state civil rights laws, by Gregory against the City of Louisville and against several of the police officers involved.

 

 

Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 01-00535—Thomas B. Russell, District Judge.
Argued: October 26, 2005
Decided and Filed: April 11, 2006
Before: SILER and CLAY, Circuit Judges; MILLS, District Judge.
CLAY, Circuit Judge. Plaintiff, William Thomas Gregory, and Defendants cross appeal March 29, 2004 and June 22, 2004 orders entered by the United States District Court for the Western District of Kentucky which ruled on the parties’ cross-motions for summary judgment in this action by Plaintiff for violations of his civil rights under 42 U.S.C. § 1983 and various state laws. The orders below dismissed Plaintiff’s claims entirely against the municipal and supervisory Defendants, denied other Defendants absolute or qualified immunity, and dismissed certain claims as unsupported by the record.
For the reasons set forth below, this Court AFFIRMS in part and REVERSES in part the orders of the district court.
EXCERPTS FROM COURTS DECISION:
3. Custom of Overly Suggestive Show-ups
 

Plaintiff also alleges that the City had a custom of using overly suggestive show-ups and that the City failed to train its officers in proper identification techniques. The district court dismissed this claim, finding that Plaintiff had failed to make a showing of other complaints about the City’s use of show-ups. In so holding, the district court overlooked both facts in this case and a significant prong of this Court’s jurisprudence. First, Plaintiff need not present evidence of a pattern of complaints consistent with his own if he presents evidence of a written policy unconstitutional on its face. Monell, 436 U.S. at 692-94. The facts of this case show that the City’s written line-up “waiver� form is direct evidence of a custom or practice, obviating the need for circumstantial evidence a court might otherwise seek. See id. Second, Plaintiff need not present evidence of other complaints if he can show that the City failed to train its officers in proper identification techniques, and that such failure to train had the “obvious consequences� of leading to constitutional violations of the sort experienced by Plaintiff. See Cherrington, 344 F.3d at 646.

 

One-on-one show-ups are inherently suggestive. Cf. Stovall v. Denno, 388 U.S. at 302; see also Webb v. Havener, 549 F.2d 1081, 1086-87 (6th Cir. 1977); Haynes v. Bell, No. 96-6443, 1998 U.S. App. LEXIS 9377, at *9-10 (6th Cir. May 6, 1998) (unpublished opinion). Yet the “primary evil� to be avoided with identification procedures is any “substantial likelihood� that an “irreparable misidentification� will take place. See Neil v. Biggers, 409 U.S. at 199-200.

 

 Therefore the Supreme Court has refused to find show-ups per se unconstitutional. Rather, the Supreme Court has directed us to look to the totality of the circumstances to understand whether an identification made during a one-on-one show up is otherwise reliable. Id. The Supreme Court has directed us to look to 1) the opportunity of the witness to observe the perpetrator during the crime, 2) the witness’ degree of attention, 3) the accuracy of the witness’ prior description of the perpetrator, 4) the level of certainty demonstrated by the witness at the identification, and 5) the length of time between the crime and the confrontation. Id. We note that the Supreme Court’s directions to the courts can also be stated in the inverse: show-ups are never per se constitutional.

 

The Supreme Court’s teaching makes it clear that a failure to consider the totality of the
circumstances, and the indiscriminate use of one-on-one show-ups, would have the obvious Nos. 04-5856/5859/6482 Gregory v. Louisville, et al. Page 24
consequences of constitutional violations. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.� Stovall, 388 U.S. at 302. This condemnation exists because show-ups exacerbate weaknesses already existing in eye-witness identification. See Marshall v. Rose, 499 F.2d 1163, 1165 (6th Cir. 1974) (“[T]he danger inherent in eyewitness identification has long been a subject of grave concern.�) By presenting only a single suspect to a witness, police convey an implicit message that “this is the guy.� See Foster v. California, 394 U.S. 440, 442-43 (1969). In Foster, the Supreme Court vacated the petitioner’s conviction after finding that an identification which resulted only after the petitioner had been presented to a witness through a line-up, a subsequent one-on-one show-up, and then another line-up, was so suggestive that it “made it all but inevitable that [the witness] would identify petitioner whether or not he was in fact ‘the man.’� Id.
 

Neither the Supreme Court nor this Court has ever found a show-up identification made after a witness failed to pick a suspect out of a line-up or photo array to be otherwise reliable and admissible into evidence. In fact, the jurisprudence from this Circuit and the Supreme Court teaches just the opposite. In Foster, the witness failed to make an identification at an initial line-up, despite a certain level of suggestiveness even in the line-up. 394 U.S. at 443. It was only after the witness saw the suspect again at a one-on-one show-up, at which the witness made a tentative identification, and finally at another line-up, did the witness make a firm identification. Id. The Supreme Court found the process so suggestive as to deny the suspect due process of law. Id. Likewise, this Circuit has found that a witness’ repeated exposure to a suspect prior to identification so taints the identification that a substantial likelihood of misidentification exists. See Thigpin v. Cory, 804 F.2d 893, 897 (6th Cir. 1986); see also United States v. McFarland, 746 F.2d 1480, 1480 (6th Cir. 1984) (holding that the use of a coconspirator’s photo identification violated due process when the witness and suspect had been arraigned together on a prior date and circumstances did not otherwise indicate that the identification was reliable).

 

Similarly, this Court has never found that an identification arising from a suggestive format was anything but unreliable when the witness’ prior description of the suspect was significantly inconsistent with the suspect’s actual appearance. See id.; see also Webb, 549 F.2d at 1086 (finding identification unreliable when prior description noted assailant had long sideburns, and identified suspect sported a mustache, but no sideburns, during the timeframe in question); Marshall, 499 F.2d at 1167 (finding that witness’ description of suspect did not match actual physical appearance in a “crucial respect�).

 

A custom or practice of using one-on-one show-ups indiscriminately is akin to conducting a search or seizure without an assessment of probable cause. While circumstances do exist which may justify the use of a show-up, just like circumstances do exist which justify a search without a warrant, a practice of going through with a show-up without consideration of the circumstances has the “highly predictable consequences� of resulting in constitutional violations. See Brown, 520 U.S. at 409.

 

Eyewitness identifications are recurring situations in criminal investigations. Officers conducting a show-up must consider the circumstances and make a reasoned determination of whether, under the totality of the circumstances, the show-up would be so suggestive that there exists a “substantial likelihood� that an “irreparable misidentification� will take place. See Neil, 409 U.S. at 199-200. This Court has in the past held that a municipal practice of bypassing consideration of the circumstances in which the exercise of a city power is constitutional or not can lead to 42 U.S.C. § 1983 municipal liability. See Sell, 47 Fed. App’x at 695 (“If Columbus failed to instruct or train the officers responsible for emergency evictions about their constitutional responsibility to provide a hearing in all but ‘extraordinary situations’ . . . that shortcoming is one that is so likely to lead [to] a violation of the constitutional right to due process as to be deliberate indifference to citizens’ constitutional rights, and give rise to municipal liability under § 1983.�) Not all eyewitness identification opportunities – or even the vast majority – will pass the totality of the circumstances Nos. 04-5856/5859/6482 Gregory v. Louisville, et al. Page 25
12The dissent reasons that Plaintiff has failed to show a pattern or practice of illegal activity. Yet the City’s
practice of “skipping� the Neil v. Biggers analysis shows such a pattern of illegal activity. Given the Supreme Court’s “grave concerns� over the suggestiveness of show-ups, such a practice has the “highly predictable consequences� of leading to constitutional violations, which is the applicable standard here. Not every use of a show-up need lead to a constitutional violation for the City to exhibit “deliberate indifference� to the rights of its citizens. See Sell, 47 Fed. App’x at 695.
13The City argues in the alternative that Plaintiff “waived� his right to contest the suggestibility of the show-up when Plaintiff consented to the show-up by signing the City’s pre-printed line-up “waiver� form. The judge at Plaintiff’s criminal trial agreed, but found that “the [show-up] procedure would have been unduly suggestive had there not been a waiver . . . . There would have been serious problems with it.� (J.A. at 1906-07.) As we discussed, supra, this take on Plaintiff’s consent to the show-up misconstrues what took place and the nature of constitutional waiver.
test such that a show-up would not lead to a due process violation.12 A municipality with a custom or practice of conducting show-ups without consideration of the circumstances therefore opens itself up to § 1983 liability.

 

The remaining question for this Court is whether the evidence, when viewed in the light most favorable to Plaintiff, is such that a reasonable jury could conclude that the City had a custom or practice of using show-ups without consideration of the circumstances, and that pursuant to this custom, Tarter employed a show-up with Plaintiff without consideration of Plaintiff’s due process rights. Plaintiff puts forth evidence that the City had a custom of using show-ups in lieu of line-ups in non-exigent circumstances. Plaintiff’s evidence includes affidavits from two police practice experts who opined that there existed systematic deficiencies in police officer training; that supervising LDP officers found it “perfectly acceptable� to conduct non-exigent show-ups days after a crime if an officer could get a suspect to sign a “waiver;� and that it was established practice to ask suspects in for a line-up, fail to take affirmative actions to constitute a line-up, and request consent to a show-up. (J.A. at 2330, 2332, 2334, 2208, 2236-38, 2241-42, 2247-50, 2275.)

 

Plaintiff presents further evidence that using such show-ups was expressly approved through the existence of preprinted waiver forms.13 Such forms are evidence of established practice. See Sell, 47 Fed. App’x
at 692. Given this evidence, we cannot say that a reasonable jury could not conclude that the City had a custom or practice of conducting show-ups without consideration of the constitutional implications of such show-ups, and thus that the City was “deliberately indifferent� to the due process rights of its citizens. Accordingly, we reverse the district court’s grant of summary judgment to the City.
Plaintiff’s detention, Plaintiff must present evidence that the officers (1) stated a deliberate falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted information was material to the finding of probable cause. Hill, 884 F.2d at 275; see also Spurlock, 167 F.3d at 1006 (“[A] reasonable police officer would be on notice that unlawfully detaining a suspect, despite the fact that the evidence used to detain the individual was fabricated, would also be unlawful.�).

 

At a preliminary hearing on June 15, 2002, Clark testified on direct examination that Mrs. V had twice identified Plaintiff. On cross-examination, Clark revealed that Mrs. V had failed to pick Plaintiff out of a photopak, but did not reveal that Mrs. V actually picked another photo.

 

When asked if the police had any evidence against Plaintiff other that Mrs. V’s identification, Clark responded “Not at this time.� (J.A. at 1300.) When asked if Mrs. V had given a physical description of her assailant, Clark responded: “That’s correct and it fits [Plaintiff.]� (J.A. at 1301.) When Plaintiff moved to dismiss for lack of probable cause, the judge denied the motion, but noted that “because of the extremely minimal burden on the Commonwealth that I’m gonna have to find probable cause but I’ll state for the record it’s just barely.� (J.A. at 1302.)

 

Plaintiff argues that had Clark revealed that Mrs. V indicated another picture from the array, the judge’s determination of probable cause may have swung the other way. The facts show that Mrs. V identified someone other than Plaintiff out of the photopak when asked to choose a picture of someone most closely resembling her attacker. Whether this selection by Mrs. V should have been disclosed by Clark is a question of materiality, and materiality determinations are the province of the jury when reasonable minds could differ. Gaudin, 515 U.S. at 512 (1995). Moreover, Clark stated on the stand that Mrs. V’s description of her attacker “fit� Plaintiff, despite the fact that Mrs. V described her assailant as 5 feet 6 inches tall, with a stocky build and long, straight, oily or greasy hair while Plaintiff was actually 5 feet, 11½ inches tall and had kinky hair. A reasonable jury could infer that this conclusion by Clark was so contrary to the facts known to him at the time that this statement was a material misrepresentation to the court.14 Further, because the court at the time of the hearing just barely found probable cause, a reasonable jury could conclude that without the “fit� testimony or with the additional exculpatory information that Mrs. V had chosen another picture from the photopak, the preliminary hearing judge would have failed to find probable cause. As such, a jury could conclude the Clark’s reliance on the court’s determination of probable cause was unreasonable.
1. Material Misrepresentations to Establish Probable Cause
Police officers cannot, in good faith, rely on a judicial determination of probable cause when that determination was premised on an officer’s own material misrepresentations to the court. Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th Cir. 1989).

 

 Such reliance is unreasonable, and detention of an individual pursuant to such deceptive practices violates the Fourth Amendment. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).

 

 This Court has held investigators subject to suit under § 1983 for making materially false statements either knowingly or in reckless disregard for the truth to establish probable cause for an arrest. Id. With Fourth Amendment rights implicated by ongoing, pretrial detention, deliberate obfuscation or omission of material facts by an investigator at the preliminary hearing makes the investigator’s subsequent reliance on the hearing’s conclusions unreasonable. See Albright, 510 U.S. at 280 (Ginsburg, J., concurring).
We note the distinction here between Plaintiff’s viable continued detention claim against Katz as premised on Brady violations, and Plaintiff’s failed continued detention claim against Clark and Carroll as premised on fabrication of the notes. We held, supra, that Plaintiff could pursue both his Brady violation claim and his continued detention claim against Katz because the shared factual premise there – the concealment of exculpatory information – resulted in both unlawful pretrial detention and an unfair trial. Here, the fabrication of inculpatory information has no pretrial detention effect in the absence of additional evidence that the fabrications influenced the initial or continued detention. Accordingly, we find that although Plaintiff may pursue a fabrication of
evidence claim based on the allegedly false investigation notes, Plaintiff has failed to establish any link between the notes and any Fourth Amendment injury.

 

CONCLUSION
For the foregoing reasons, this Court AFFIRMS in part and REVERSES in part the district court’s decisions in this case. We affirm the district court’s denial of absolute immunity to Defendants Clark, Carroll, and Katz for their pretrial, nontestimonial acts.

 

We also affirm the district court’s refusal to grant qualified immunity to Katz and Tarter. We similarly affirm the district court’s grant of summary judgment in favor of supervisory Defendants Thomas, Ammon, and Kessinger.

 

Finally, we affirm the district court’s grant of summary judgment to Defendant Carroll with respect to Plaintiff’s allegations that Carroll violated Plaintiff’s Fourth Amendment rights by continuing Plaintiff’s detention without probable cause.

 

We reverse the district court, however, on its grant of summary judgment to Defendant Katz with respect to Plaintiff’s allegations that Katz violated Plaintiff’s Fourth Amendment rights by  failing to disclose exculpatory evidence, thereby causing Plaintiff’s detention to continue without probable cause.
 

We also reverse the district court’s grant of summary judgment to Defendant Clark on Plaintiff’s allegations that Clark violated Plaintiff’s Fourth Amendment rights by continuing Plaintiff’s detention without probable cause.

 

 Finally, we reverse the district court’s summary judgment for Defendant City on Plaintiff’s Monell claims as they relate both to identification procedures and to disclosure of exculpatory evidence.